text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Bobby Rufus Barfield, Defendant-Appellant.
    Gen. No. 49,625.
    First District, Third Division.
    November 18, 1965.

      Carl A. Champagne, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Lawrence A. Passarella, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

Bobby Barfield was found guilty of burglary in a nonjury trial and was sentenced to the penitentiary for a term of four to ten years.

He contends that his conviction should be reversed because an oral and a written statement made by hfm were improperly received in evidence, that he was not proven guilty beyond a reasonable doubt, that the trial court failed to conduct a preliminary hearing on the competency of his confessions and that prejudicial error was committed in the reception of evidence.

A tavern in the City of Chicago was burglarized during the early morning of September 21, 1963, and about $209 was taken. Barfield’s aunt was employed at the tavern and Barfield, who arrived in Chicago by motorcycle from California on September 20th and departed on the 21st for Tennessee, visited her at the tavern on the night of the 20th.

On October 8,1963, Barfield was arrested on a vagrancy charge in Miami, Florida. He was taken to jail and when questioned by the police said that he was “on the lam” and had “knocked off” a tavern in Chicago. He gave the date of the crime and the name and address of the tavern where his aunt worked. The police officer who interrogated him was unaware of the Chicago burglary until informed about it by Barfield. On October 10th, in a written statement signed by him, Barfield confirmed his oral statement.

At his trial Barfield, who had a criminal record, denied the burglary. He explained his revelation to the Miami police by stating that while he was in Tennessee visiting his sister, she told him that she had received a telephone call from their aunt in Chicago who said that he was suspected of the burglary and that a warrant might be sworn out for his arrest; that when the police asked him if he was wanted for any crime he replied that he didn’t know for sure but he possibly might be wanted for questioning about the tavern burglary.

Only two witnesses testified for the State: the owner of the tavern and the police officer from Miami who had taken the oral and written statements. The tavern owner described the premises before and after the burglary. She said she knew Barfield and that he and a friend of his were in her tavern the night before the burglary. She did not know who broke into the tavern.

The officer testified that he was the only one who talked with the defendant when the oral confession was made but that a Sergeant Smith, a police matron, and three or four jailers were present. He said the written statement was taken two days later in the presence of Officer D. G. Martin and a police secretary. Although the written statement consisted of five typewritten pages, only one question concerned the burglary:

“Q. Do you also recall at this time, in our conversation in the city jail your giving me information that you had broken into the Roundup Tavern at 6846 North Western Avenue, Chicago, Illinois, approximately the 21st of September 1963 ?
A. Yes, sir.”

At the defendant’s arraignment he was furnished a copy of this signed statement and the names and addresses of the persons who had witnessed his oral and written statements. The lists contained but two names: A. B. Rossman [the officer who testified] and D. G. Martin. Omitted from one list were the names of Sergeant Smith, the matron, and the jailers; omitted from the other was the name of the secretary who recorded the statement.

Section 1 of Division XIII of the Code of Criminal Procedure provides:

“Whenever a written or oral confession shall have been made before any law enforcement officer . . . by any person charged with any crime, a copy of such confession, if written, together with a list of the names and addresses of all persons present at the time such confession was made shall be given the defendant or his counsel. ... If such confession was not reduced to writing, then a list of the names and addresses of all persons present at the time the confession was made shall be furnished. . . .”
“No confession shall be admitted as evidence in any case unless the . . . list of names and addresses of persons at the time the confession was made is furnished as required by this section.” Ill Rev Stats, 1963, c 38, para 729.

The statute was not complied with, and the testimony about the oral confession and the written confirmation of the oral confession were inadmissible. The defendant was not informed in advance of trial of the names and addresses of those law enforcement officers before whom he is supposed to have confessed. He was entitled to this information so that he would not be taken by surprise or handicapped in the preparation of his defense. Although the officer who testified said that the other police officers did not participate in questioning Barfield he did say that they were present. He was not asked to explain their presence and we cannot assume that they were attending to other business or were walking in and out of the room. Appropriate objections were made to the statements and they should have been excluded.

Compliance with the statute is mandatory and failure to comply has been held to be reversible error in cases where the evidence was close or where the record, without the confession, did not contain sufficient competent evidence to establish the guilt of the defendant beyond a reasonable doubt. People v. O’Connell, 30 Ill2d 603, 198 NE2d 834; People v. Shockey, 30 Ill2d 147, 195 NE2d 703; People v. DuPree, 26 Ill2d 320, 186 NE2d 237.

In the O’Connell case the State failed to furnish a list of witnesses to an oral confession until the jurors were being examined. The court reversed the defendant’s conviction, saying:

“In our opinion the State was required by section 1 of division XIII to furnish defendant with the names of the testifying officers prior to the rearraignment or, at least, sufficiently far in advance of trial to enable the defendant to prepare accordingly. In view of the close factual situation we do not agree that permitting the officers to testify can be held to be other than prejudicial.”

In Shockey the State introduced a written confession without giving the defendant a copy or a list of the names and addresses of the persons present at the time of the confession. The court said:

“Excluding the evidence concerning the confession, there is not a sufficient quantum of evidence in this case to prove defendant guilty beyond a reasonable doubt. Therefore, the trial court’s admission of the confession into evidence and the testimony concerning it constituted prejudicial error.”

Without his two statements there was no evidence connecting Barfield to the crime for which he was indicted and his-conviction must be reversed.

In view of this conclusion there is no need to discuss the defendant’s last two assignments of error. Our only comment is that neither is meritorious; apart from admitting the confessions the trial was conducted without error.

Reversed.

SULLIVAN and SCHWARTZ, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE SCHWARTZ

license: Public Domain

text:
    Smart & Golee, Inc., Plaintiff-Appellee, v. Frank J. Delany and Anne Delany, Defendants-Appellants.
    Gen. No. 49,628.
    First District, Third Division.
    November 18, 1965.
    Rehearing denied December 9, 1965.
    Marshall E. LeSueur, of Chicago, for appellants.
    Ashcraft, Olson, Beach, Alexander & Edmonds, of Chicago (William H. Alexander, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Defendants appeal from a judgment for $3,150, being the amount of the commission claimed by plaintiff for the sale of the defendants’ home in Evanston, Illinois. Plaintiff acted throughout by its president Orville Daily and an employee, James Kreiser. The amended complaint, upon which relief was granted, is based on the theory of an implied agency growing out of dealings between the parties which allegedly resulted in the sale. Defendants contend that no contract with Smart & Golee can be implied because that firm’s only connection with the property was as a subagent of Quinlan & Tyson (Quinlan) with whom the defendants had a written contract which had terminated two months before the sale.

Plaintiff’s original statement of claim was based on the written contract dated July 28, 1959, which granted an exclusive power of sale to Quinlan. Under this contract, the defendants were entitled to cooperative listing of the property and to the sales efforts of the cooperating members of the Evanston-North Shore Board of Realtors, of which both Quinlan and the plaintiff were members. Had the plaintiff been able to bring about a sale of the property as a subagent pursuant to the contract, it would have received fifty percent of the commission, with the other fifty percent going to Quinlan. This contract also provided that the agency arrangement might be terminated upon thirty days notice, except as to prospective buyers who had been shown the property before the termination became effective, in which case the agreement was to remain in effect for an additional three months.

On November 9, 1959, the Delanys gave notice of termination of the exclusive selling arrangement with Quinlan which, under the contract, would become effective on December 10, 1959, except as to prospects who had seen the house on or before that date. A sale to one in the latter class at any time between December 10, 1959, and March 10, 1960, would still have come within the provisions of the written contract, entitling each broker to fifty percent of the commission.

The purchasers were Gerald and June Becker, with whom the defendants made an oral agreement of sale on May 2, 1960. The Beckers were first shown the property by the plaintiff, Smart & Golee, on November 30, 1959, which at that time was operating as a subagent under the cooperative provision in the written contract with Quinlan. On December 20, 1959, there was a meeting at the Delany home attended by Daily and Kreiser representing Smart & Golee, the Beckers, their lawyer, the Delanys, and some relatives of the Beckers. Although Quinlan was not personally represented, plaintiff acknowledges that the meeting was arranged with that firm’s approval, in accordance with a provision in the constitution of the Evanston-North Shore Board of Realtors that “Board members holding exclusive agreements require and insist that cooperating brokers make all appointments to show the property through the office of the exclusive agent. . . . All discussions with the owner shall be made only through the exclusive agent.”

The negotiations between the buyer and the seller concerned both time and price. The Delanys wanted to complete the sale and move their family, which included school children, to Washington, D. C., by midsemester of the school year, which was at the end of January. The Beckers did not want to move into the house until the end of the school term in June. There was also a difference of approximately $2,000 in the price. The Delanys testified that they considered the matter of possession the more important. Replying to the Beckers’ demand for a June sale, Delany testified that he said “If this is the case, there is no question in- discussing price any more because that [meaning the time for the conclusion of the sale] is an insurmountable obstacle in my mind.” The negotiations were seemingly stalemated, despite a statement by Becker that “This isn’t over yet.”

There followed a lull in the bargaining from that time until'after March 10, 1960, the final day of the three month extension period as set forth in the Quinlan contract. The Beckers testified that their interest in the property never abated. The only activity relating to the sale of the house, however, was a series of telephone calls among the parties, attempting to arrange suitable conditions for an experimental test of the driveway. Emil Neukranz of Quinlan was involved in those negotiations, and there is testimony that he attempted to prod the plaintiff into taking further steps to consummate the sale, specifically urging a follow-through on arranging with the parties for the driveway test. Neukranz testified that Quinlan was aware that unless the sale was made by March 10, 1960, it would realize nothing from the exclusive agency contract. He further testified that this concern with increasing the sales efforts met with a reply from Kreiser of Smart & Golee to “get off his neck, that I bothered him too often.” This delay, it is urged by the defendants, was to enable the plaintiff to claim the entire commission.

On April 1, 1960, there was a telephone conversation between Kreiser and Mrs. Delany in which she asked plaintiff to continue to show the property to other persons, but not to the Beckers. Notwithstanding this, Smart & Golee continued to negotiate with the Beckers and introduced them to other available property. The Delanys, unaware of the plaintiff’s continued participation, dealt directly with the Beckers and lowered their selling price by an amount equal to the claimed commission. Both before and after March 10, 1960, the Delanys independently advertised the house for sale, when it appeared that no other prospects had been produced by Smart & Golee. During the same period the plaintiff did no advertising of the Delany house nor did it bring any other prospective purchasers to see the house. The Delanys, believing they were free of any obligation to either realtor under the written contract after the time limit had expired, undertook to and did sell the property on their own.

The only evidence of any contract between plaintiff and defendants during the period when the implied agency allegedly existed is the telephone call of April 1st hereinbefore referred to. Nonetheless, the plaintiff argues that the effect of its previous efforts with respect to the sale of defendants’ house did not lapse with termination of the written agreement, but that an implied contract arose, based on the efforts made to sell the property to the Beckers.

While the written contract was in effect the parties were bound thereby and the time limit therein stipulated controlled. Plaintiff could not, on a theory of implied contract, escape the provisions of that limitation. Goodman v. Motor Products Corp., 22 Ill App2d 378, 161 NE2d 31; Walker v. Brown, 28 Ill 378. The plaintiff seeks to distinguish its position and contends that it was not bound by the time limit in the Quinlan contract because it was not a party thereto. Although it was not a signer of that contract, it acted as a cooperating broker thereunder, its compensation was determined thereby, and it was subject to the provisions thereof. That contract was the only basis on which the plaintiff was employed and the conditions and obligations thereof cannot be evaded by resort to the theory of an implied contract.

Even assuming that the written contract did not preclude suit on an implied contract, there would still be no basis for this action, which must rest on the dealings between the parties subsequent to March 10th, the last day on which the Quinlan contract controlled. The telephone call of April 1st from Kreiser to Mrs. Delany was the only communication between plaintiff and the defendants until after the sale, when the realtor demanded its commission. This was insufficient to support an implied contract.

The judgment is reversed.

Judgment reversed.

DEMPSEY, P. J. and SULLIVAN, J., concur.


author: MR. JUSTICE SULLIVAN

text:
    Louis L. Lorillard, Plaintiff-Appellant, v. Field Enterprises, Inc., a Corporation, Defendant-Appellee.
    Gen. No. 49,891.
    First District, Third Division.
    November 18, 1965.
    Rehearing denied December 9, 1965.

      Posanski, Johannsen, Krohn & Jacobs, of Chicago, for appellant.
    Robert F. Hanley and A. Daniel Feldman, of Chicago, for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

Plaintiff, Louis L. Lorillard, instituted a libel action in the Circuit Court of Cook County to recover damages from the defendant, Field Enterprises, Inc. The lower court allowed defendant’s motion to strike the complaint and dismiss the action and entered judgment for the defendant. For the purpose of this appeal we must accept the averments of the complaint as true. Plaintiff appeals to this court for a reversal of the judgment dismissing the action.

The basis of plaintiff’s claim is an allegedly libelous article written about plaintiff by one Cleveland Amory, society columnist, and published in defendant’s newspaper, The Chicago Sun-Times, on September 2, 1962. The article concerns the marital affairs of the plaintiff and the former Mrs. Lorillard. The relevant paragraphs for our consideration are:

“Their divorce began four long years, 11 lawyers, three injunctions and seven lawsuits ago, when young Louis, who is in the travel business, decided to take a trip around the world, during which he apparently also decided to get a divorce—the first news of which greeted his wife on her return from a Jazz Festival in French Lick, Ind., when she found her New York apartment locked, the locks changed and a note stating that her clothes had been removed to a hotel at which, in her absence, somebody had registered her. When Louis himself returned, he promptly went to Alabama and procured a ‘quickie’ divorce.
“This Mrs. Lorillard equally promptly fought—all the way to the Supreme Court—and won. Then this past summer Lorillard procured another quickie divorce, this time in Arkansas and immediately, in the great Newport tradition, remarried—a divorcee named Mrs. E. C. Gable. Mr. and the new Mrs. Lorillard then prepared to move into their cottage outside Newport in Middletown, called ‘Paradise Farm.’ The former Mrs. Lorillard, however, had already moved there ahead of them and had not only started a suit to set aside the Arkansas divorce but had also started a suit for bigamy.
“Visiting the former Mrs. Lorillard in her Paradise, we found her and her two teen-age children living in a state of siege—at her husband’s order, she has no phone, no electricity and virtually nothing else. She was, however, again in the great Newport tradition, in high spirits. ‘But,’ she told us wryly, T don’t think I’ll ever give a candlelight dinner party again.’ ”

The specific statements of the article complained of by the plaintiff, as libelous and false are four in number: (1) That plaintiff went to Alabama and procured a “quickie” divorce from Mrs. Lorillard. Plaintiff alleges that this charges him with dishonesty and trickery, holds him up to public contempt, ridicule and scorn, and was published maliciously with intent to defame and injure him. (2) That after the first divorce was set aside by Mrs. Lorillard, he “procured another quickie divorce, this time in Arkansas.” Plaintiff alleges that this charges him with trying to perpetrate some fraud upon the courts and upon Mrs. Lorillard, and implies that he was not a truthful, honorable and upright man. (3) That the former Mrs. Lorillard “had started a suit for bigamy.” Plaintiff alleges that in fact no complaint, suit or prosecution of any sort had or has ever been started by the former Mrs. Lorillard, and that by this statement defendant wrongfully, falsely and maliciously charged that plaintiff had committed the crime of bigamy. (4) That Mrs. Lorillard and her two teen-age children, after moving into plaintiff’s cottage were “living in a state of siege—at her husband’s order, she has no phone, no electricity and virtually nothing else.” Plaintiff alleges that this charges him with the crime of wife and child abandonment, and also holds him up to public contempt, ridicule and scorn as a creature of low-grade who evaded his responsibility to his family. At the time, plaintiff alleges, he was paying $700 a month to his wife and children for their support, and, in addition, provided funds for the private schooling of the children for nearly four years prior to the date of this publication.

Plaintiff’s contention that the statements referring to his two divorces as “quickie” divorces, and therefore libelous, has no merit. In this day and age a reference to a divorce in a state of new domicile, procured more easily and quickly than one could be obtained in the state of former domicile, is commonly called a “quickie” divorce. The cases hold that in determining whether words are libelous per se, they must be taken in the sense which readers of common and reasonable understanding would ascribe to them, that is, in their ordinary and common acceptation. (LaGrange Press v. Citizen Pub. Co., 252 Ill App 482, 485.) Applying the above rule, it is apparent that the term “quickie” divorce is not libelous. The term is used often in everyday conversation to describe a particular type of divorce. The use of this term has become so common that it implies no fraud or dishonesty and therefore is not libelous of the plaintiff.

However, plaintiff is correct in his contention that the statement that Mrs. Lorillard had “started a suit for bigamy” is libelous per se in that it imputes a crime to the plaintiff. Bigamy is a crime. In the law of libel, any written or printed words which falsely charge one with the commission of a crime are libelous per se. (Cook v. East Shore Newspapers, Inc., 327 Ill App 559, 64 NE2d 751.) In order to constitute a libel, an article or publication need not technically charge a crime, but if the language used induces readers reasonably to believe that a crime has been committed by plaintiff the article is libelous. (Hunner v. Evening American Pub. Co., 175 Ill App 416.) In Hunner, supra, the plaintiff sued for libel, basing his claim on the words “Mrs. Hunner was divorced two years ago naming women in her bill.” The facts were that plaintiff was the one who had filed for divorce charging desertion. Plaintiff alleged that this false and libelous statement charged him with the crime of adultery. The court agreed and in deciding for the plaintiff said at page 419 of the opinion: “In interpreting the language of an article to determine whether or not it is libelous, no different construction should be placed upon it than men of ordinary affairs would give it.”

In determining whether a published article is libelous per se, the words must be taken in the sense which readers of common and reasonable understanding would ascribe to them, that is, in their ordinary and common acceptance. Hotz v. Alton Tel. Printing Co., 324 Ill App 1, 57 NE2d 137. To determine whether a written statement is libelous per se, the words of the written or printed statement shall be considered in their ordinary meaning. White v. Bourquin, 204 Ill App 83.

By using the ordinary reader test advocated in Hunner, supra, and reiterated in subsequent cases, the commission of the crime of bigamy has been imputed to the plaintiff by the words “started a suit for bigamy.” No innuendo is needed to impute the crime to plaintiff.

While the publication by the defendant does not state whether or not Mrs. Lorillard had told the author of the article that she had actually started a suit for bigamy, nevertheless, had the article so shown, it would not relieve the defendant of the duty to check into the truth of the statement. Publication of libelous matter, although purporting to be spoken by a third person, does not protect the publisher, who is liable for what he publishes. Cobbs v. The Chicago Defender, 308 Ill App 55, 31 NE2d 323. Even had Mrs. Lorillard told the defendant that she had started such a suit, it would not protect the newspaper from liability for untruths. It is not a defense to an action of libel to show that it is merely a repetition of what some other person may have said. Kulesza v. Alliance Printers & Publishers, Inc., 318 Ill App 231, 47 NE2d 547.

A newspaper has a right to publish facts and make fair comment thereon. If it goes beyond that, and the article is of and concerning the plaintiff, and it is not susceptible of an innocent construction, it is libelous. Inasmuch as the words are libelous per se, there can be no defense of fair comment and criticism. Cooper v. Illinois Publishing & Printing Co., 218 Ill App 95; Belt v. Tribune Co., 6 Ill App2d 489, 128 NE2d 638; Cook v. East Shore Newspapers, Inc., supra. Since the article imputed a crime to the plaintiff, the language is per se libelous.

Defendant cites the case of Trembois v. Standard Ry. Equipment Mfg. Co., 337 Ill App 35, 84 NE2d 862, in support of its argument that a statement that a suit has been begun is not and, as a matter of law, cannot be a statement of guilt. A close reading of the Trembois case reveals it has nothing to do with the beginning of a suit, but rather concerns a criminal arrest. However, the principle has no application to this case where suit was never filed or begun by Mrs. Lorillaxd. If suit had been filed any statements concerning these facts would have been privileged as fair comment concerning a judicial proceeding. This is not the case before us, however.

Defendant next contends that the charge of bigamy is an unreasonable construction of the article considered as a whole, and cites the case of Clark v. Tribune Co., 11 Ill App2d 420, 137 NE2d 664. In that case Mrs. Clark alleged as libelous the words “In 1935 Mrs. Clark was named in a $1,000,000 alienation of affection suit.” The court held the language nonlibelous because.in reading the entire article, the reader would see that Mrs. Clark had obtained a divorce in 1937 on the ground of her husband’s infidelity. The implication, according to the court, was that she was therefore a dutiful wife, and would be so looked upon by readers of the article. The court said that the alleged libelous words must be considered in the context of the entire article.

The Clark case is easily distinguishable on its facts from the instant case. There plaintiff’s claim of libel was dispelled by another statement imputing that she was of good character. There were two inconsistent statements referring to the complainant’s character; the court elected to adopt the statement which implied she was' of good character. This is not possible in the instant case. Nowhere in the article is there language to dispel the charge of bigamy. The entire article is disparaging to the plaintiff and strengthens his charge of libel when read as a whole. We' have examined the article as a whole, as defendant suggests we should do. It is our conclusion that it supports the plaintiff’s claim that he has been charged with the crime of bigamy, a per se libelous statement.

Defendant attempts to distinguish the Hunner case, supra, relied on by the plaintiff by saying that there the statement was held libelous because it reported the result of an action, rather than the beginning of an action, as in the instant case. Defendant contends that since the article did not say that plaintiff had lost a suit for bigamy, only that Mrs. Lorillard had started a suit for bigamy, it could not be libelous. If a statement referring to a suit is libelous and false, it does not matter that it refers to the beginning of a suit rather than the result of a suit. The normal reader of an article can just as easily reach an opinion as to the guilt of a party by reading that suit was started against him, as by reading the result of the same action.

Defendant next contends that there is no civil action for bigamy and therefore under a rule that everyone is presumed to know the law, a statement of an impossible act cannot be libelous. However, the article does not state that Mrs. Lorillard had filed a civil suit for bigamy but that she had started a suit for bigamy. The normal reader could well think that these words meant that she swore out a criminal complaint against the plaintiff, and in this way “started” a suit for bigamy. The natural inference of that statement is to charge plaintiff with a crime. The fact that there is no civil action for bigamy does not defeat plaintiff’s claim.

Lastly, defendant contends that plaintiff’s construction of the language is barred by the innocent construction rule, and cites the case of John v. Tribune Co., 24 Ill2d 437, 181 NE2d 105, to sustain this point. The facts of that case were that a woman named Dorothy Clark was arrested at a certain address on a charge of immoral activities. The defendant published two statements in its newspaper that the woman arrested was also known as Eve Spiro and Eve John. At the time, a woman resided at the same address whose maiden name had been Eve Spiro and whose name at the time, though divorced, was Eve John. She was the only person with that name at the address, but was in no manner involved in the raid nor in the immoral activities. The real Eve John filed a suit for libel, and the Illinois Supreme Court held that the publication was not libelous. The court based its decision on two points. First, the court held that the allegedly libelous statement was not “of and concerning” the plaintiff. The first name given is clearly the “target” of the publication and the alias is given merely as the false name, and the plaintiff cannot contend that the publication is “of and concerning” her, no claim being made that the publication referred to the plaintiff directly. Secondly, the court said that plaintiff’s construction of the article was not libelous of the plaintiff when the innocent construction rule is applied. At page 442 of the opinion the court cited the rule: “That rule holds that the article is to be read as a whole and the words given their natural and obvious meaning, and requires that words allegedly libelous that are capable of being read innocently must be so read and declared nonactionable as a matter of law.” The court concluded that since the statements were capable of being construed as referring only to Dorothy Clark, they were innocent publications as to the plaintiff, Eve John.

Defendant’s argument that the innocent construction rule should be applied here to defeat plaintiff’s claim that he has been charged with the crime of bigamy is totally without merit. That rule tells us that words must be given their natural and obvious meaning, and only if capable of an innocent construction must they be so read. Giving the words “started a suit for bigamy” their natural and obvious meaning, as the rule dictates, it is apparent that plaintiff has been charged with a crime. We do not see how an innocent construction can be given to these words.

However, an innocent construction can be given to the words “we found her and her two teen-age children living in a state of siege—at her husband’s order, she has no phone, no electricity and virtually nothing else.” Plaintiff alleges that these words are per se libelous in that they, first, charge him with the crime of wife and child abandonment, and secondly, hold him up to public contempt, ridicule and disgrace.

In this state the crime of child abandonment is covered under two sections of the Illinois Revised Statutes of 1963; c 68, par 24, makes it a crime to abandon children under the age of 18 years, while c 23, par 2359, covers the abandonment of children under the age of 14 years. The allegedly libelous article refers to the “two teen-age children” of the plaintiff; their specific ages are not mentioned in the publication nor in the complaint. “Teenage” embraces children who are eighteen and nineteen years of age, and under the innocent construction rule that statement cannot be construed as charging the plaintiff with the crime of child abandonment. This interpretation is required by the case of John v. Tribune Co., supra, which states that if words are capable of an innocent construction, they must be so read. Applying this rule to the abandonment allegation, it is apparent that these words can be construed innocently. Also, since the publication showed that Mrs. Lorillard was divorced from the plaintiff at the time of the statement, he could not be guilty of abandoning her.

Likewise, the laws of Rhode Island, where the abandonment allegedly occurred, require a father to support his children under the age of 18 years, and it is a criminal offense for a father not to support such children. (General Laws of Rhode Island, 1956, Sections 11-2-1 and 15-11-5.) Hence, under either the Illinois laws or those of Rhode Island, this statement is susceptible of an innocent construction, and neither charges plaintiff with a crime, nor is it libelous as holding him up to public ridicule and contempt.

Defendant’s last defense is based upon the rule stated in the case of New York Times Co. v. Sullivan, 376 US 254. There the court enlarged the privilege of the press by giving it immunity as to misstatements of fact in regard to public officials, and in its reasoning placed great emphasis on the fact that since public officials had immunity in their official conduct and statements, the critics of official conduct should have a fair equivalent of immunity. There is not the slightest implication in the opinion that the rule there espoused should be extended to persons who are not public officials. This rule is confined to public officials.

The last point that must be discussed relates to the issue of damages in cases where the words in question are found to be per se actionable. In order to recover punitive damages in a libel action some malice must be found. If the words are held to be per se actionable, the necessary malice is imputed from the words themselves; the law conclusively presumes malice in law, and general damages, without proof of loss or injury, are conclusively presumed. Cook v. East Shore Newspapers, Inc., 827 Ill App 559, 595, 64 NE2d 751. In the Cook case it was also pointed out that where the article is libelous per se there may also be malice in fact, and the court said: “Malice in fact is ‘a formed design of doing mischief to another.’ (First National Bank of Flora v. Burkett, 101 Ill 391, 394.) It is also defined as follows: ‘actual malice or malice in fact, means a positive desire and intention to annoy or injure another person.’ (36 Am Jur p 681.)” The existence of actual malice may be inferred where a defamatory publication is made without proper cause or excuse. Where malice in law or actual malice exists punitive damages may be awarded. Cooper v. Illinois Publishing & Printing Co., 218 Ill App 95; Hintz v. Graupner, 138 Ill 158, 27 NE 935.

The plaintiff in the instant case may also recover actual or compensatory damages. If the words are libelous per se, it is not necessary to allege or prove special damages, both malice and damages being presumed. White v. Bourquin, supra; Hambric v. Field Enterprises, Inc., 46 Ill App2d 355, 196 NE2d 489. Allegations of special damage or actual malice are not essential where the matter alleged to defame is libelous per se. Estill v. Hearst Pub. Co., 186 F2d 1017 (7 cir). Actual or compensatory damages also include general damages such as mental suffering and injury to reputation, and these need not be proved by evidence. Van Norman v. Peoria Journal-Star, Inc., 31 Ill App2d 314, 175 NE2d 805.

The defendant contends that the words complained of do not constitute libel per se and therefore it was necessary for the plaintiff to not only allege actual malice, but also to allege with specificity some special damage. Since we have concluded that the words “started a suit for bigamy” are libelous per se, it is not necessary to further discuss the law relating to special damages.

Reversed and remanded.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. John M. Gratton, Principal, and Wabash Fire & Casualty Insurance Company, Surety, Defendant-Appellant.
    Gen. No. 49,946.
    First District, Third Division.
    November 18, 1965.

      Jerome Rotenberg, Rotenberg, Schartzman & Richards, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Edward J. Hladis, Chief of Civil Division, and Joseph V. Roddy, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

Defendant, Wabash Fire & Casualty Insurance Company (hereinafter referred to as Wabash), the surety on a supersedeas bond issued on behalf of John M. Gratton, principal, appeals from a judgment in a scire facias action entered against it in the Criminal Court of Cook County in the amount of $15,000 in favor of the plaintiff, People of the State of Illinois. The supersedeas bond was issued on June 29, 1962, on behalf of the principal on a conviction which was being appealed to the Supreme Court of Illinois. The Supreme Court issued an order of affirmance in the appealed cause on October 16, 1963, and said order was filed with the clerk of the criminal court on October 21,1963.

One of the conditions of the bond was that if the conviction of John M. Gratton was affirmed in the Supreme Court, “he shall and will surrender himself to the Sheriff of Cook County, Illinois, from whose custody he is bailed. . . .”

On November 5, 1963, without notice to either defendant, surety or principal, the court entered an order forfeiting the aforesaid supersedeas bond. A scire facias on recognizance was then issued by the clerk of the criminal court on December 12, 1963. This recited that since the defendant Gratton was called three times in court and did not answer, a default had been entered, and both defendants were to be summoned by the sheriff of Cook County to personally appear before the Criminal Court and show cause why the bond forfeiture should not be made absolute.

On February 10, 1964, the surety filed a petition to vacate the bond forfeiture, and the plaintiff filed an answer to the petition on March 11, 1964. Subsequently, evidence was presented by the surety in support of its petition, and by the plaintiff in opposition to the petition.

The evidence presented at that time showed that John Quirk, an agent of Wabash, had received a telephone call on October 29, 1963, from the general agent of Wabash advising him that the defendant Gratton was in a barber shop located at 59th and State Streets in Chicago. He was instructed to go there and pick up Gratton and surrender him to a deputy sheriff. Quirk stated that he then went to the sheriff’s office located in the Criminal Court Building and inquired as to the capias for Gratton’s arrest. Deputy Sheriff Arthur Walthers told him that he had the capias and that he would go with Quirk and serve it upon the defendant. Walthers got the capias, the two men proceeded to 59th and State Streets in Walthers’ auto, and they were met there by two other bondsmen, Smith and Knight, not connected with Wabash.

Gratton came out of the barber shop and was told that he was going to be taken into custody. Gratton agreed to this and got into the back seat of Deputy Walthers’ auto. The auto in question was used by the deputy in his official duties as a deputy sheriff. At the time, the deputy had handcuffs on his person, but did not use them on Gratton.

At this point, there was a conflict in the testimony as to what was said by the various parties when Gratton asked to be taken to see his brother. Quirk, agent of Wabash, testified that when the defendant asked to be taken to his brother’s restaurant, Deputy Walthers immediately asked the defendant where it was located. Quirk stated that he said nothing. Deputy Walthers testified that one Taylor (later testimony showed that he meant bondsman Knight, and not Taylor) stated to him that Gratton was to be taken to see his brother. Walthers then said that he asked Quirk about it, and he replied, “He’s all right, he won’t give you any trouble. I know the whole family.” However, Walthers later admitted on cross-examination that Quirk did not tell him where to drive the automobile.

Knight, the bondsman, testified that he merely asked where they were going with the defendant, and the deputy replied that Gratton wanted to see his brother before he went in.

Upon arriving at the restaurant, everyone went inside. After a short time Gratton went into the kitchen and disappeared.

After hearing all of the evidence offered by the defendant and the plaintiff, the court entered an order denying the defendant surety’s motion to vacate the previous bond forfeiture and dismiss the scire facias action. The surety then stated it was ready for trial, desired a jury trial, and asked that its petition to vacate stand as the answer to the scire facias. The court allowed the petition to stand as an answer but denied the demand for the jury trial. Without any evidence being given by the plaintiff in support of the allegations in the scire facias, the court then entered judgment in favor of the plaintiff and against the defendants.

The court, based on the evidence presented in support of the surety’s petition to vacate, should have dismissed the scire facias action and vacated the bond forfeiture against the surety.

The surety contends that all of the conditions of the bond had been complied with, and therefore there was no reason for the bond to be forfeited. With this contention we are in full agreement. The conditions on the bond were “that the said John M. Gratton will appear at said Criminal Court of Cook County, as and when the court may direct, until the determination of said Writ of Error, and will not, at any time depart the court without leave, and that in case said judgment of the said Criminal Court is affirmed, he shall and will surrender himself to the Sheriff of Cook County, Illinois. . . .” Likewise, the supersedeas order of the Supreme Court, and the scire facias issued by the clerk of the criminal court also provide that upon affirmance of his conviction, Gratton was to surrender himself to the sheriff of Cook County.

The facts of the case show that Gratton was taken into custody by Deputy Sheriff Walthers, who had the capias issued for the defendant. There was no obligation for Gratton to appear in court after the affirmance of the conviction by the Supreme Court. As noted above, only before the affirmance of the conviction of Gratton was he to appear in court “as and when the court may direct.” The plaintiff mistakenly proceeded in the scire facias action on the grounds that the defendant Gratton did not appear in court as required. The . plaintiff’s answer to defendant’s surety’s petition states in support of its case that “the Principal-Defendant failed to appear in court at the required time. . . .” This he was not required to do.

There was no obligation to surrender the defendant Gratton in open court. The terms of the bond clearly state that he was to surrender himself to the sheriff of Cook County after affirmance by the Supreme Court. This was done when he was turned over to the deputy sheriff and placed in his car. In People v. Paulsen, 146 Ill App 534, it was held that when the arrest of the principal was made by the authority of the surety, the surrender was complete and effective to discharge the surety from any liability on the recognizance.

The plaintiff contends that there was never sole control of Gratton by the deputy. At most, it contends, Gratton was in joint custody of a deputy sheriff and a bondsman. This contention is without merit. The deputy admittedly had the capias in his possession for the arrest of the defendant, and as soon as the defendant entered the auto of the deputy he was from that time in the custody of the sheriff of Cook County.

Even if the agent of the surety, when the defendant asked to be taken to see his brother, said that the defendant was all right and would cause no trouble, it is immaterial to the decision of this case. The deputy had the capias and the defendant was in his auto. Therefore, the defendant was in the custody of the sheriff and nothing said by the surety could change the question of custody.

The surety should not be penalized for the negligence of the deputy sheriff in the instant case. The deputy had his handcuffs with him, and should have placed them upon the defendant as soon as he was taken into custody. Certainly the deputy should not have permitted the defendant to roam around the restaurant, thereby inviting an escape.

Lastly, the Illinois statutes provide that the surety may surrender the principal to the proper officer at any time before default upon the bond “by producing a certified copy of the recognizance, and, in person or by agent, accompanying the officer to receive the person arrested. . . .” (Ill Rev Stats 1963, c 38, § 621.) Though the surety did not provide the deputy with a certified copy of the bond as required by the statute, this was an unnecessary act because the deputy had the capias for the defendant Gratton. In State v. Lawrence, 46 SD 599, 195 NW 441, the court dealt with a statute similar to the aforementioned Illinois statute. There was not strict compliance with that statute, and the court stated at page 602 of the opinion: “They did not present to the sheriff a certified copy of the bond, it is true, but that would have been superfluous, because the sheriff told them he had the original. It was the sheriff’s duty, not that of the sureties, to thereupon forthwith take the prisoner to the court or magistrate having jurisdiction. This he did not do, but under the circumstances such neglect cannot be charged to the sureties.”

The surety also contends that it was denied a jury trial by the court in the scire facias proceeding. Since we have disposed of this appeal on other grounds, we do not reach this point.

The judgment of the Criminal Court of Cook County is • reversed as to the defendant Wabash Fire & Casualty Insurance Company, and the trial court is instructed to vacate the bond forfeiture as to the surety.

Reversed and remanded with directions.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: JUSTICE SCHWARTZ.

text:
    Marjorie E. Olson, Plaintiff-Appellant, v. William Hoffman, et al., Defendants-Appellees.
    Gen. No. 49,908.
    First District, Third Division.
    November 18, 1965.
    Rehearing denied January 6, 1966.
    James A. Dooley, of Chicago, for appellant; Tenney, Bentley, Guthrie & Howell, of Chicago (Stephen J. Nagy and David C. Newman, of counsel), for appellee.
   Opinion by

JUSTICE SCHWARTZ.

Not to be published in full.


author: PRESIDING JUSTICE DEMPSEY.

text:
    Virginia Van Cura, Helen Donna Ott, and George Blozis, Executor Under the Last Will and Testament of Pauline Drangelis, Deceased, Plaintiffs-Counter Defendants, Appellees, v. Kazys Drangelis, Defendant-Counter Plaintiff, Appellant.
    Gen. No. 50,020.
    First District, Third Division.
    November 18, 1965.
    Rehearing denied December 9, 1965.
    Edward Stasukaitis, of Chicago, for appellant; Tage Joranson, Darwin P. Kal and Harry S. Jacobs, all of Chicago, for appellees.
   Opinion by

PRESIDING JUSTICE DEMPSEY.

Not to be published in full.


author: JUSTICE MORAN.

text:
    Howard H. Meyers, et al., Plaintiffs-Appellees, v. Robert Vincent, et al., Defendants-Appellants.
    Gen. Nos. 64-141, 64-142.
    Second District.
    November 22, 1965.
    John R. Snively, of Rockford, for appellants; Early and Lundin, of Rockford (Vern L. Davitt, of counsel), for appellees.
   Opinion by

JUSTICE MORAN.

Not to be published in full.


author: MR. JUSTICE DAVIS

text:
    Margaret B. Seymour, Individually and as Successor Trustee Under the Will of Effie J. Seymour, Deceased, Plaintiff-Appellee, v. Walter Heubaum, et al., Defendants-Appellants.
    Gen. No. 64-133.
    Second District.
    November 22, 1965.

      Carbary, Carbary & Chapski, and Robert I. Burstein, all of Elgin (George D. Carbary, Robert A. Chapski and Robert I. Burstein, of counsel), for appellants.
    Daniel M. Schuyler, of Chicago, and Ben Rifken, of Elgin (Daniel M. Schuyler and Ben Rifken, of counsel), for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This is a suit seeking construction of a will and a declaratory judgment that plaintiff is owner in fee simple absolute of certain real estate. The issue before the court is the applicability of the rule in Shelley’s case to a certain devise contained in the will of Effie Seymour, who died in 1939. If the rule is applicable under the language of the will, its abrogation by statute in 1953 (Ill Rev Stats 1963, c 30, pars 186, 187), will not affect the determination here as the statute has no retroactive application. Baker v. Forsuman, 15 Ill2d 353, 359, 155 NE2d 24 (1959).

After making certain specific bequests, Effie Seymour provided in paragraphs five and six of her will, in pertinent part, as follows:

“Fifth: I give, devise and bequeath all the rest and residue of my estate real or personal, wherever situate, including all my right, title and interest in and to the real estate known as ... , to J. Harter Kirkpatrick ... as trustee, to be held in trust for the benefit of my son William H. Seymour during his lifetime and upon his death to be paid to his lawful heirs “Sixth: I give my said trustee . . . full power and authority to sell, rent or improve both real estate and personalty and to sign and deliver all necessary instruments of transfer ... to rent, mortgage, repair, alter or sell any real estate the same as I might do if living . . . nor shall any order of court be necessary in making any such sale and any real estate or personalty so sold shall be unencumbered by this trust, I direct that said income from this trust shall be payable only to said named beneficiary or his legally appointed guardian for his sole use. The trustee may in his discretion pay out of the principal to said beneficiary if necessary to his support. I direct said trustee pay for a proper burial for my son William H. Seymour . . . .”

As indicated, Effie Seymour died in 1939; her son, William, died in 1960 leaving a will in which he devised all of his property to his wife, the plaintiff, who brought this suit seeking a construction of Effie Seymour’s will and a judgment declaring that her husband took a fee interest under his mother’s will, capable of being devised to her. This contention is premised upon the applicability of the rule in Shelley’s case to the mother’s will, converting the remainder to William’s lawful heirs into a remainder in fee in William. The trial court held that the rule in Shelley’s case was applicable and that William thus took the remainder as well as the life estate, which constituted the fee; and that, therefore, he had the power to dispose of the same by will. The defendants, the heirs of William other than his widow, prosecuted this appeal.

Stated simply, the rule in Shelley’s case is that whenever, in the same instrument, an estate of freehold is limited to the ancestor, and a remainder to his heirs, either mediately or immediately, in fee, or in tail, the words “heirs” is one of limitation of the estate, and not of purchase, and the ancestor takes the fee. People v. Emery, 314 Ill 220, 223, 145 NE 349 (1924). Whenever the grants of the freehold and remainder are contained in the same instrument, there are three requisites for application of the rule: First, a freehold estate must be granted to the ancestor; second, a remainder must be limited to his “heirs”, general or special, as such—that is, by the name of heirs and without explanation as meaning sons, children, etc.; and third, the two estates, freehold and the remainder, must both be of the same quality,—that is, both must be either legal or equitable. People v. Emery, ibid.; Baker v. Scott, 62 Ill 86, 93, 94 (1871).

The rule in Shelley’s case is a rule of property— not a rule of construction. Lord v. Comstock, 240 Ill 492, 499, 88 NE 1012 (1909); Hageman v. Hageman, 129 Ill 164, 168, 21 NE 814 (1889); Baker v. Scott, supra; Carey and Schuyler, Illinois Law of Future Interests, sec 93, pp 151, 152 (1941). It matters not that the creator of the instrument in question manifested an intent that the property pass in a manner different than that resulting from the application of the rule. That is, in fact, the necessary result of the rule. It operates on the remainder alone, taking it from the heirs and vesting it in the ancestor; and although the preceding estate of freehold is a circumstance necessary to its application, such estate is not directly affected by it. The ordinary rules of construction are applicable only in first determining if there is a “freehold”; if there is a remainder in the “heirs,” and if the two estates are of the same quality. These determinations are made wholly independently of the rule in Shelley’s case, itself. 1 Hayes, Conveyancing, 542-545 (5th ed 1840).

It is not disputed that the will of Effie Seymour granted an equitable life estate, and thus a freehold, to her son, William. The defendants contend, however, that the second and third requisites for the application of the rule are not present. They argue that the second requisite is absent because the word “heirs” was intended to designate certain persons other than those ordinarily encompassed within the meaning of the word, and it was thus used as a word of “purchase” not of “limitation” ; and that the third requisite is missing in that the life estate was equitable and the remainder was legal. Hence, they urge that the two estates were not of the same quality. Lastly, they contend that the plaintiff is guilty of laches and is further estopped from asserting the application of the rule in Shelley’s case.

The word “heirs” is a technical word, and when used it is presumed to have been used in its strict technical sense. If it is to be given a meaning other than its strict legal meaning, it must clearly and affirmatively appear that the author of the instrument did not intend that the word “heirs” be used in its proper and legal sense. Spicer v. Moss, 409 Ill 343, 354, 355, 100 NE2d 761 (1951); Carpenter v. Hubbard, 263 Ill 571, 581, 582, 105 NE 688 (1914).

Defendants contend that since Effie Seymour’s will contained two specific bequests of $100 each to her two step-daughters, described as “my daughters,” she thus evidenced an intent that the two named stepdaughters were to take under her will as her own son’s “heirs”, although not technically such. If this intention were clearly manifested, we concede that the word “heirs” would not have been used in its technical and legal sense and the rule in Shelley’s case could not be applied. However, it is not readily apparent to us how the two specific bequests of $100 each to her respective step-daughters, designated as “daughters,” manifests an intent that they are to be included in the devise of the entire residue of her estate to the “lawful heirs” of her son upon his death. We think rather, that such bequests to each of her step-daughters would indicate an intent to exclude them from the residuary estate; and that the designation of her son’s “lawful heirs” as the ones to ultimately take upon his death indicated that Effie Seymour had exhausted her specific wishes by prior bequests and when disposing of her residuary estate, she was content to let the law then take its course. Robertson v. Eastern Long Island Hospital, 28 Ill2d 483, 490, 491, 192 NE2d 895 (1963).

That the word “heirs” is preceded by the word “lawful” does not affect its ordinary or technical meaning. Wilson v. Harrold, 288 Ill 388, 394, 123 NE 563 (1919); Deemer v. Kessinger, 206 Ill 57, 61, 69 NE 28 (1903). The word “heirs” as used by Effie Seymour in her will, was used as a word of limitation and not of purchase, and the second requisite for the application of the rule in Shelley’s case is present.

Whether the remainder interest is legal or equitable must depend upon the character of the trust created by Effie Seymour’s will. If the trustee was vested with the fee simple title under the trust created by the will, coupled with the power to sell, convey, rent, mortgage, etc., it follows that the life estate limited to William H. Seymour was equitable and the remainder interest given to his “lawful heirs,” was likewise equitable—the same as the life estate. Nowlan v. Nowlan, 272 Ill 526, 532, 533, 112 NE 259 (1916); Carpenter v. Hubbard, 263 Ill 571, 580, 105 NE 688 (1914); Lord v. Comstock, 240 Ill 492, 500, 88 NE 1012 (1909).

The quantity of the estate taken by the trustee is not determined from the particular form of the devise to the trustee, but, rather, from the intention manifested by the testator in defining the scope, extent and purpose of the trust and the duties of the trustee thereunder. The trustee will take whatever legal estate is necessary for him to carry out the purpose of the trust and his duties thereunder. If a fee is required, a fee will be taken; if a lesser estate will suffice, then only such an estate will vest. Wattjes v. Faeth, 379 Ill 290, 295, 296, 40 NE2d 521 (1942); Lord v. Comstock, supra at 501.

Our courts have long held that á devise to a trustee in which there is a power in the trust to sell, necessarily vests the fee in the trustee. In Nowlan v. Nowlan, supra, the Court on page 533, stated:

“The trustee is authorized and empowered, in his discretion, to sell the trust estate and to make a conveyance vesting perfect title in the purchaser. He was necessarily vested with the fee for the purpose of carrying out this provision (citing cases).”

In Lord v. Comstock, supra, at page 501, the Court stated:

“The trustee acquires whatever estate is needed to enable him to accomplish the purposes of the trust, even a fee simple. (Lawrence v. Lawrence, 181 Ill 248.) If the duties devolving upon them by the terms of the trust are such as can only be performed if the trustees are clothed with the legal title in fee, then they are vested with such title. The quantity of the estate taken by a trustee must be determined not merely from the fact that words of inheritance in the trustee are or are not used, but from the intention of the parties, and such intent is to be determined by the scope and extent of the trust upon which the legal estate in the trustees is here based.”

and at page 502, the court in quoting from earlier cases, stated:

“In West v. Fitz, 109 Ill 425, this court said (p 439): ‘The power to sell and convey land absolutely is an incident of a fee simple estate, only.’ In the recent case of McFall v. Kirkpatrick, 236 Ill 281, we reviewed at length the authorities on this question, and stated (p 294): ‘If a trustee is directed and empowered to convey land the legal estate necessarily vests in Mm, and if he is required to convey a fee the fee must be conferred upon him.’ ”

Effie Seymour’s will gave to her trustee “full power and authority to sell, rent or improve (the) real estate . . . and to sign and deliver all necessary instruments of transfer ... to rent, mortgage, repair, alter or sell any real estate the same as I might do if living . . . .” It is inconceivable to us how the trustee, under powers given to him by this instrument to enable him to carry out his duties and the purpose of the trust, could be vested with anything less than the full and complete legal title to the real estate.

The language of devise in the fifth paragraph of the will, “I give, devise and bequeath all the rest and residue of my estate real or personal, wherever situate, including all my right, title and interest in and to the real estate known as ... to J. Harter Kirkpatrick . . . as trustee, . . . ,” is certainly as indicative as language might be of an intent to give the complete fee simple title to the trustee. Unless there is explicit language elsewhere in the will which expressly or necessarily dictates that the trustee received less than a fee, an express devise of the trust estate to the trustee, coupled with an absolute power of sale, vests the trustee with the fee. Nowlan v. Nowlan, supra, at 532, 533; West v. Fitz, 109 Ill 425, 439, 440 (1884).

While we do not deem it crucial to our determination, two other provisions of the will are consistent with the apparent intent to convey a fee to the trustee. The trustee was directed to pay for a proper burial for the life tenant. The fact that the trustee has duties to perform after the death of the life tenant suggests a legal fee in the trustee, rather that a life estate coupled with powers. West v. Fitz, supra, at 438-441. The defendants suggest that this provision does not really impose any duties upon the trustee to be carried out after the life tenant’s death, as the trustee could have paid for the life tenant’s burial while he was still alive. Such possibility does not alter the fact that if the trustee paid for the burial in the normal course of events, he did so after the life beneficiary’s death, and there is nothing before us to indicate otherwise.

This contention is effectively answered in West v. Fitz, supra, page 440 in these words:

“Jarman, in his valuable work on Wills, (volume 3, page 67,) after reviewing some of the cases relating to this subject, says: ‘The general rule now acted upon is, that where an estate is given to trustees, all the trusts must, prima facie, be performed by them by virtue or out of the estate vested in them; . . . for it would be a strange and artificial construction to hold, first, that the natural meaning of the words should be cut down because they would give an estate more extensive than the trust required, and then, when the trust does require the whole fee simple, that it must be supplied by way of power, defeating the estate of the subsequent devisees, and not out of the interest of the trustees. To rebut this prima facie construction, it must be shown on the face of the will what estate of definite duration will enable the trustee to serve the trusts out of their interest, and not by way of power,—and this not according to subsequent events, but according to events possible at the testator’s death.’ ” (Italics ours.)

If the legal estate continued in the trustee after the death of the life tenant, no matter how short the period, there cannot during that same period be a legal vested remainder in the heirs of the life tenant. The remainder interest given to the heirs must then, of necessity, be equitable in nature. Lord v. Comstock, supra, at 503.

The will further provided that upon the death of William Seymour, the rest and residue of the estate that was devised and bequeathed in trust, was then “to be paid” to his lawful heirs. The defendants urge that the word “paid” cannot be interpreted to mean “convey” and suggest that it might be construed to mean “descend,” in which case, they argue, the trust became passive immediately upon the death of the life tenant, and was executed by the Statute of Uses, and the remainder interest was then legal. Alternatively, they argue that the word “paid” assumes a liquidation of the property involved and by implication directs that a sale of the property must be made with the result that the doctrine of equitable conversion applies, in which event the remainder interest is personal property to which the rule in Shelley’s case does not apply. This argument, however, is more ingenious than persuasive. The wording of the fifth paragraph of the will does not suggest or require the liquidation of the trust estate. Nor do the words “to be paid” lend themselves to the interpretation of being synonymous with “descend.”

In Robertson v. Eastern Long Island Hospital, supra, the wording of the will under consideration was “to pay and make over to my heirs at law . . . ,” and such words were treated as words of conveyance. If any significance can be given to the words “to be paid,” we believe that it is that the testator manifested an intent, albeit inept, that insofar as the real estate was concerned, the trustee was “to convey” it to her son’s lawful heirs.

In McFall v. Kirkpatrick, 236 Ill 281, 86 NE 139 (1908), the court construed the deed there before it as directing the trustee to convey the property to the life tenant’s heirs upon her death, in the event of default of appointment by the life tenant. The court stated that the trust was an active one and could not be executed until the trustee completed the last active duty imposed upon him by the deed, which was to convey the premises to the appointee of Eliza Houston after her death. The court further stated that this duty to convey, prevented the trust from becoming passive and from being executed by the Statute of Uses; that the trustee retained the legal title until he made such conveyance; and that the limitation of the remainder was thus of the same quality as that of the life estate—equitable—with the result that the rule in Shelley’s case was held to apply.

As to whether the Statute of Uses may ever operate to execute a trust in which the trustee has obtained full legal title or whether, in such cases, the trustee retains the active duty of conveying the legal title upon the termination of all other active duties, it appears that our courts have not always reached consistent conclusions. See McFall v. Kirkpatrick, 236 Ill 281, 300-303, 86 NE 139 (1908). Insofar as the application of the rule in Shelley’s case is concerned, however, the determination of whether or not the Statute of Uses becomes operative, is irrelevant. For if we concede the operation of the Statute of Uses which would convert the remainder from an equitable into a legal interest, even then the statute may not execute the trust until all of the active duties of the trustee have been performed and nothing remains to be done. Jackson v. Pillsbury, 380 Ill 554, 578, 44 NE2d 537 (1942); Meacham v. Steele, 93 Ill 135, 145 (1879). The inquiry to be made regarding the applicability of the rule in Shelley’s case is as to the effect of the instrument creating the freehold and remainder estates on the date such an instrument becomes effective. In the case of a will, it is as of the date of the testator’s death. Thus, if a trust is created in a will, with the result that the freehold is equitable, the inquiry to be made in determining the quality or nature of the remainder, must be as to the quantum or size of the trustee’s estate at the inception of the trust. If it is a fee interest, then the freehold and remainder must be equitable in nature. Carey & Schuyler, Illinois Law of Future Interests, p 171 (1941). If both estates—the freehold and remainder—are of the same quality at the time the trustee takes title, it matters not that the quality or nature of one of the estates might, or might not, be altered at some later time.

It is inescapable under the language of the devise, which included the power to sell and convey and imposed duties on the trustee after the death of the life tenant, all as set forth in the will of Effie Seymour, that the trustee was granted complete legal title. The remainder interest was thus, of necessity, of the same quality as the freehold estate—equitable. All of the requisites for the application of the rule in Shelley’s case are here present, with the result that the life tenant, William Seymour, was given the fee to the real estate in question under the will of Effie Seymour. The application of the rule in Shelley’s case to a particular case depends, not upon the quantity of the estate intended to be given to the ancestor, but upon the estate devised to his heirs. It conclusively expresses the intention of the testator, and governs and controls in determining the estate devised, notwithstanding the expression of an intention on the part of the testator that the ancestor shall take a less estate than the fee. It changes the remainder to the heirs of the devisee, into a remainder to the ancestor, so that he has a life estate with the remainder in fee to himself. Depler v. Dyer, 312 Ill 537, 541, 144 NE 212 (1924); Hageman v. Hageman, supra.

Lastly, the defendants contend that William Seymour during his lifetime committed certain acts which estop the plaintiff from asserting that he was granted an equitable fee in the remainder by application of the rule in Shelley’s case. In this regard, they assert that during his lifetime, William Seymour filed an answer to a petition of the then trustee under Effie Seymour’s will in which he acknowledged that the defendants had an interest in the realty. In the petition in question, the trustee sought leave of court to mortgage the trust property, although the trust provisions expressly granted this power unto the trustee without requiring any court approval. In this proceeding for leave to mortgage the premises, the same counsel represented both William Seymour and the trustee and a consent decree was entered by the court.

This prior action cannot be the basis of a plea of estoppel by judgment in that it is a different cause of action than that presented here. Smith v. Bishop, 26 Ill2d 434, 436, 187 NE2d 217 (1962). Nor can it be the basis of a plea of estoppel by verdict, as the issue of the applicability of the rule in Shelley’s case and the possibility of an equitable fee in the remainder being in William Seymour was neither in issue or controverted in the prior action, nor determined by that court. Estoppel by verdict is a bar only to those matters actually litigated by the same parties in a prior action. Smith v. Bishop, ibid.; Chas. Ind Co. v. Cecil B. Wood, Inc., 56 Ill App2d 30, 36, 205 NE2d 786 (2nd Dist 1965).

Defendants further assert that William Seymour was guilty of laches in asserting his title under the rule in Shelley’s case by acquiescing in receiving only the income from the trust property during his lifetime and that such laches is imputable to plaintiff here, and cite City Trust & Sav. Bank of Kankakee v. Knight, 249 Ill App 617, 630 (2nd Dist 1928), to sustain this contention. However, the circumstances of the case at bar and the Knight case are not similar. In Knight, the issue was the right to income for a 15 month period, which was some 20 years prior to the time the claim thereto was asserted. ' There the Court held the laches of the life tenant imputable to his personal representative. Such factual situation is absent in the case at bar.

Here, if the rule in Shelley’s case is applicable, it affects the remainder, not the preceding freehold. Accepting the benefits of the life estate is not necessarily inconsistent with later claiming the applicability of the rule in Shelley’s case. Laches, also, is not merely a matter of delay. It is a failure to assert a right over a period of time, which when taken in conjunction with all other circumstances would result in undue prejudice to the adverse party. It is thus principally a question of inequity in permitting a claim to be enforced when during the delay there has been a change in condition of the subject matter or relation of the parties resulting in a disadvantage in the party against whom the claim is asserted. Elliott v. Pure Oil Co., 10 Ill2d 146, 156, 139 NE2d 295 (1957); Freymark v. Handke, 415 Ill 360, 366, 367, 114 NE2d 349 (1953). No such inequity is here shown.

Further, as stated above, the rule in Shelley’s case alters only the remainder and not the prior freehold. There was not a substantial lapse of time between the death of the life tenant and the assertion of the claim made by this action. The only claim that could have been asserted by the life tenant which he did not make, was that through the doctrine of merger, the remainder and the life estate coalesced, giving him a fee during his lifetime.

Although the rule in Shelley’s case may apply, our courts have suggested that there would be no merger of the life estate and the remainder if the life estate is subject to spendthrift provisions, as here. Carpenter v. Hubbard, 263 Ill 571, 580, 105 NE 688 (1914). To permit the merger of such estates under these circumstances, would vitiate the spendthrift provisions of the will.

We are thus of the opinion that the plaintiff is not estopped from asserting the application of the rule in Shelley’s case to the devise contained in the will of Effie Seymour, and that the rule applies to the devise. The decree of the Circuit Court is, accordingly, affirmed.

Decree affirmed.

MORAN, J., concurs.

ABRAHAMSON, P. J., dissenting.


author: MR. JUSTICE MORAN

text:
    Donald Thorp, Plaintiff, v. Gosselin Hotel Company, an Illinois Corporation, Aurora Island Hotel Company, an Illinois Corporation, and Robert W. Robinson, et al., Defendants. Robert W. Robinson, Counter-Plaintiff, Appellant, v. Donald Thorp, Counter-Defendant, Appellee.
    Gen. No. 64-150.
    Second District.
    November 22, 1965.

      Sears, Streit, Dreyer & Foote, of Aurora (William J. Foote, of counsel), for Robert W. Robinson, appellant.
    Goldsmith, Dyer & Thelin, of Aurora (David D. Dyer, Jr., of counsel), for Donald Thorp, appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

Counterplaintiff, Robert W. Robinson, appeals from the trial court’s judgment order disallowing his counterclaim for real estate broker’s commission of $10,000 against Donald Thorp, counterdefendant. Thorp had sued two hotel companies, an attorney and Robinson for fraud and deceit in inducing Thorp to enter contracts to purchase a hotel building from one corporate defendant, forty rooms of furniture from the other corporate defendant and to pay Robinson a brokerage commission of $10,000. Thorp asked the court to declare the contracts null and void and order the return of his earnest money deposit held by the attorney.

The attorney was dismissed before trial, and after a trial on the merits the trial court held in favor of the corporate defendants in the original case and in favor of plaintiff and counterdefendant Thorp on the counterclaim. Plaintiff did not appeal; however, Robinson appeals from the denial of his counterclaim.

On March 11, 1963, Thorp, who described himself as a real estate investor, entered into a contract to purchase the Aurora Hotel in downtown Aurora for $175,000, together with furniture for forty hotel rooms from the Leland Hotel for $60,000. He paid $5,000 down and paid another $5,000 on April 1, 1963. The contract provided for the final $165,000 for the hotel to be paid by May 1, 1963.

Thorp had been approached about purchasing the hotel in January of 1962 by Robinson, and in January of 1963, Robinson mentioned it to him again. The asking price was reported to be $175,000 net to the sellers. In February, 1968, Thorp made a formal written offer to purchase the property for $175,000, which was to include the broker’s commission. After this offer was refused he made a second offer of $175,000 net, which was not to include the broker’s commission. This was accepted and the contract of March 11, 1963, was prepared and signed and the earnest money was paid.

Subsequently, on March 19, 1963, Thorp entered into a written agreement to pay a broker’s commission of $10,000 to Robinson for his services in the transaction.

The March 11, 1963, contract was not made contingent upon Thorp obtaining financing and there was testimony that he stated at that time he already had financing committed.

During March, April and May of 1963, Thorp made certain attempts to obtain financing but without success. He finally defaulted on the purchase contract.

During the trial, Thorp testified that Robinson had acted as his broker in previous transactions; that Robinson had several listings on properties owned by Thorp about which they conferred together regularly; that in January of 1962, when they talked about the hotel property, Robinson told him a member of the Gosselin family had said the net profits of the hotel were around $23,000. Thorp further testified that, prior to entering into the purchase contract, Ward Gosselin told him the profits for two or three years were $23,000 per year. The property had been appraised at about $250,000 or $300,000.

Prior to March 11, 1963, Thorp had never inspected the hotel except to go through the lobby. He had been advised that the plumbing was bad, that the plaster on some of the walls was crumbling and falling, and that there had been a falling out between the various members of the Gosselin family. He stated that Robinson told him that he did not care what the net earnings of the hotel had been because if the hotel could support the three Gosselin families, it could certainly support one family, and that under new management the hotel could earn substantially more than it had in the past.

On cross-examination, Thorp admitted that he had used the figure of $22,000, rather than $23,000 at the discovery deposition; that he had stated at the deposition that he did not recall asking for a statement of earnings of the hotel prior to March 11, 1963, and that he' did not recall hearing the Gosselins say anything about net earnings before March 11,1963.

Frank Muneio, an officer of one of the lending institutions to which Thorp applied for a loan, testified that Thorp told him the purchase price was $250,000, and the net earnings were approximately $5,000.

William Ward Gosselin testified that no net earnings figures were mentioned in the negotiations and Thorp never asked for any such figures. He thought Thorp was acting for another undisclosed purchaser because of his lack of interest in the earnings of the hotel. An offer was made to Thorp that he could look at the hotel books and records, but he did not avail himself of the offer.

It further appears that on May 4, 1963, Thorp received a letter from John Gosselin stating the income to be about $5,000, and later on or about May 15, 1963, at Thorp’s request, Robinson wrote a letter. In this letter he stated that in the first part of 1963, John Gosselin gave him various figures including the figure of $21,311.00 as “new” income per year from 1960 to date.

Thorp admitted several times during his testimony that he had understood Robinson to have been only relaying net income figures given him by Gosselin.

The trial court wrote a memorandum of opinion in which it held that although Robinson acted in good faith as Thorp’s agent, he failed to use ordinary care in determining the actual profits of the real estate, he gave no advice as to a proper inspection of the property, and that there is no proof that he actually made a thorough inspection of the property himself. The court held that because of prior dealings between Thorp and Robinson, Thorp relied upon the broker’s knowledge and experience in the real estate field. Further, that the agency agreement should be strictly construed against the agent, and therefore the agreement was not enforceable by the agent. The trial court also held that the agent was not entitled to the reasonable value of his services.

Appellant, Robinson, argues that this decision is not based on the pleadings or evidence offered under the pleadings; that a broker is not under a legal duty to act as an advisor or consultant to a purchaser; and that he owed no duty to obtain income information or insist that Thorp inspect the property. Appellant contends that he earned his commission upon bringing together a ready, willing and able buyer and a seller who accepts the buyer and a contract is executed.

It is clear from the evidence that Robinson was acting in behalf of Thorp in this transaction. As Thorp’s agent, Robinson owed him the duty of exercising reasonable care, skill and diligence. Generally speaking, a principal has a right of action against his agent for loss or damage resulting from the agent’s breach of duty or wrongful act. Failure to exercise due care, with resulting damage to the principal, will when properly pleaded and proved, preclude a broker from compensation for his services. However, the simple failure of the principal, because of financial inability to consummate the transaction does not discharge his obligation to compensate the agent.

It is true, as suggested by appellant that there were no allegations either in Thorp’s complaint or in his answer to appellant’s counterclaim raising the question of due care on the part of Robinson. Indeed, in the complaint Thorp charged Robinson, “as agent and broker for the corporate defendants,” with falsely and fraudulently representing to Thorp that the net income of the hotel was $21,311 per year; whereas, his answer to the counterclaim is nothing but denials of the allegations of the counterclaim.

However, it is not necessary to base our decision on the pleading question. We hold rather that in this case the broker had no duty to his principal to explore the question of the sellers profits from the operation of the hotel nor was he under any duty to advise Thorp to inspect the property nor to completely inspect the property himself. Net income from the operation of a hotel business depends upon many factors besides the value of the land and improvements thereon. Elements of good management, payrolls and other overhead expenses and methods of accounting may affect net income more than real estate value. Both parties were apparently of the opinion that for various reasons Thorp would be more successful in the operation of the hotel than were the sellers. In addition, it was recognized by both parties that the building was in a rundown condition; that extensive plastering and plumbing work had to be done, and that a new boiler was needed.

Further, we find no causal relation between the acts or alleged omissions of Robinson and Thorp’s failure to complete the purchase. Thorp was experienced in real estate matters. He spoke repeatedly with the Gosselins and had a full opportunity to request financial records or inspect the premises as he wished. The price of $175,000 was certainly fair, since the only proof of any other value was the appraisal of $250,000. Thorp represented the purchase price to be $250,000 when he talked to Frank Muneio, and there is no proof that he ever advised any lending institution that the purchase price was only $175,000. Whatever the cause of Thorp’s failure to complete the purchase, it was not the result of fault on the part of Robinson.

The cause is reversed and remanded to the trial court with instructions to enter judgment in favor of Robinson on the counterclaim for $10,000 and costs.

Reversed and remanded.

ABRAHAMSON, P. J. and DAVIS, J., concur.


text:
    Allie Banks, Plaintiff-Appellee, v. Bowman Dairy Company, an Illinois Corporation, Defendant, and George Koliopoulos, Defendant-Appellant.
    Gen. No. 65-29.
    Second District.
    November 22, 1965.

      Michael J. Costello, of Chicago, for appellant.
    Erwin Cohn, of Chicago, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

The plaintiff, Allie Banks, obtained a judgment against the defendant, George Koliopoulos, on a $5,000 verdict for personal injuries resulting from an automobile collision. The accident occurred July 16, 1962, at the intersection of Langley Avenue and 6Srd Street, Chicago, Illinois, when vehicles driven by the respective parties collided. The defendant, Bowman Dairy Company, at the close of all the evidence, obtained a directed verdict and is, therefore, not a party to this appeal.

From a denial of his post-trial motion, the defendant appeals, assigning two errors on the part of the trial court. The first error was the admission into evidence of certain X-rays without the proper foundation along with testimony concerning the interpretation of these X-rays. The second error was the improper restriction of defense counsel on cross-examination of the plaintiff, in that he was precluded from asking how long she had been driving an automobile prior to this occurrence.

With regard to the X-rays, the plaintiff called the supervisor of the medical records at the University of Chicago Hospital Clinic, who testified that she was the custodian of the records of all the patients; that she had with her the records of the plaintiff; that the records were kept under her direction and control and were in the original condition; that a number is assigned to each new patient; that plaintiff’s number was 714140, which corresponds with the number on the X-rays.

Doctor Roger A. Burgos, a radiologist at the hospital, testified that he had no independent recollection of plaintiff; that page N-29 of the hospital record bears his signature; that on July 16,1962, he examined four X-rays of that date, all bearing unit number 714140; that the films were exposed by a technician under his control; that if any films are not diagnostic, he may ask for more films; that he was present at the hospital when the films were exposed but was not in the X-ray room; and that they were ordered by the admitting physician. He went on to testify as to the procedure followed by the X-ray department, being that the patient is brought to the X-ray department and assigned a room with a technician. The technician exposes the films, they are checked by the officer of the day and then placed in envelopes for recording by clerks. Dr. Burgos then disclosed that he had seen the questioned X-rays the same day, and they were diagnostic. He then interpreted to the jury the X-ray films of July 16,1962.

The plaintiff testified to facts concerning the collision, in that she was taken to the hospital from the scene of the accident; that she received a clinic card when she entered the hospital, and that this card bore the number 714140.

An examining physician saw the plaintiff in 1964 just before the trial. He took additional X-ray films and found the same condition present in a healed state as was presented by the X-rays of July 16,1962.

Defendant contends that the admission of the 1962 films and the reading of them by the radiologist was error, citing Stevens v. Illinois Cent. R. Co., 306 Ill 370, 137 NE 859 (1923); Wicks v. Cuneo-Henneberry Co., 319 Ill 344, 150 NE 276 (1925), and Lachenmyer v. Glotfelty, 284 Ill App 397 (1936). However, defendant does not contend that the X-rays in question were other than those taken of the plaintiff, nor is any other specific objection to the films raised.

The Stevens and Wicks cases are early landmark decisions rendered at a time when X-rays were relatively new and the science of radiology was not well understood. Both cases spell out methods of proving a foundation for the admission of X-rays; however, even in the Wicks case, a failure to lay the proper foundation was held not to be prejudicial error where there was no contention at the trial that the condition described did not exist or that the film showed a condition different from that described by the doctor.

Similarly in the Lachenmyer case, the admission of the films was held not to be reversible error where the technicians taking the films testified, but did not use the fluoroscopic tests suggested in the Stevens case.

In more recent decisions we find the courts more willing to accept the same standards of accuracy and identification as are being used by doctors and hospitals in the day to day care of patients. Lazarus v. Friel, 331 Ill App 552, 73 NE2d 647 (1947); Smith v. Broscheid, 46 Ill App2d 117, 196 NE2d 380 (1964); Hickey v. Chicago Transit Authority, 52 Ill App2d 132, 201 NE2d 742 (1964).

Rules of evidence are established for the orderly trial of cases and to permit parties to present relevant proof in support of their cases consistent with reasonable standards safeguarding the rights of the opposition to cross-examine, disprove and explain. Evidence rules are created to encourage and insure the presentation of the truth—not simply to throw senseless road blocks in the path of justice. Modern day hospital practice is such that the radiologist very likely does not see the patient, the treating doctor is not present when the X-rays are exposed or read, and he may well rely heavily upon the radiologist’s report in diagnosing and treating his patient’s condition. X-rays are made with proper identifying marks and the trained radiologist can determine from the film itself as to whether the exposure is proper and the film diagnostic. When these safeguards are accepted in the hospital, we see no reason why they should not be similarly accepted in court, particularly in the absence of any specific objection to the identity of the exhibit. We find that there was no error in the admission of the July 16,1962 X-ray films.

Defendant-appellant’s objection to the ruling of the trial court on cross-examination of the plaintiff as to her driving experience is with merit. Although it is true considerable latitude should be granted by the trial court in controlling cross-examination of a party on any relevant matter, we do feel that the court erred in its ruling sustaining objection to questions pertaining to the length of time plaintiff had driven an automobile. Her experience is not determinative of the question of her due care at the time of the accident. Nevertheless, we feel that the exclusion of this evidence in this particular case is harmless error and would not have changed the result herein.

The judgment of the trial court is affirmed.

Judgment affirmed

ABRAHAMSON, P. J. and DAVIS, J.. concur.