Wilson Grocery Co. v. National Surety Co.

218 Ill. App. 584, 1920 Ill. App. LEXIS 324

• Court: Appellate Court of Illinois
• Decided: June 29, 1920
• Docket: Gen. No. 6,595
• Status: Published

Opinion

Mr. Presiding Justice Dibell

delivered the opinion of the court.

This is an action of assumpsit brought by the Wilson Grocery Company, hereinafter called plaintiff, against the National Surety Company, hereinafter called defendant, upon a contract of indemnity executed by defendant, to secure plaintiff against any act of personal dishonesty, forgery, theft, larceny, embezzlement, wrongful conversion or abstraction, by plaintiff’s cashier, William B. Bootz, after July 1, 1915, and before the termination of the contract. Plaintiff filed a declaration which charged Bootz with personal dishonesty, embezzlement, etc., while the contract was in force. Bootz was originally made a defendant, but plaintiff afterwards dismissed the suit as to him, and filed an amended declaration. Defendant filed the general issue and eight special pleas. Plaintiff replied to the special pleas. A statement of the defenses set up in the special pleas is unnecessary at the present time. The canse was sent to a referee under section 68 of the Practice Act (J. & A. ft 8605), the first sentence of which is as follows:

“All actions in which matters of account are in controversy, may, by the order of the court, be referred to some competent person or persons as a referee or referees to state and report an account between the parties, and the amount that may be due from either party to the other, which report, when confirmed by the court, shall be final and conclusive between the parties and judgment entered thereon and execution issued in the manner provided by law in cases of arbitration and award, but either party‘may, within ten days after notice of the filing of the report, file exceptions thereto and demand a trial, in which case the action shall be tried as other cases, and upon such trial the report of the referee or referees shall be prima facie evidence of all the facts therein found and reported; and no other exceptions shall be considered on the trial than those filed as above provided.”

The referee filed a detailed report, finding for plaintiff in various sums amounting to a total of $2,004.70, and with his report he filed a copy of the evidence he had heard upon the reference. Plaintiff moved for judgment on the award. Defendant moved to strike the report from the files. Defendant also filed exceptions to the report and demanded a jury trial. The court denied the motions and granted a jury trial. The jury found for defendant. Plaintiff moved for a* new trial and that motion was denied. Defendant had judgment. Plaintiff sued out a writ of error from this court to review said proceedings. We aErmed the judgment and afterwards granted a rehearing.

Defendant contends that most of the questions argued by plaintiff are not preserved for review because exceptions to the ruling of the court are not embodied in the bill of exceptions. Such exceptions are not required since amended section 81 of the Practice Act went into force on July 1, 1911 (J. & A. 8618). Miller v. Anderson, 269 Ill. 608, and later eases.

It is argued by defendant that this was not a proper ' case for a reference under section 68 of the Practice Act. Defendant has not assigned cross error. Hence it cannot complain of the reference. This question is not raised by the record.

Plaintiff moved to strike defendant’s exceptions from the files on the ground that they were too vague and general. Each of the first fourteen exceptions sets out that particular portion of the report by which the referee reached one particular item of the account, and excepts thereto. The defendant does not therein expressly state why he excepts to that part of the report, but we understand defendant to mean thereby that defendant claims that the' proof did not warrant that conclusion. The fifteenth exception states the amount of each item which the referee allowed against defendant, and a name to identify the item, and states as the ground of exception that said items are.each incorrect. The statute does not authorize the court to hear and pass upon these exceptions, but as to the items excepted to the court must submit them to a jury. No doubt in ordinary cases under this statute, there will be many items not excepted to and which therefore will stand as allowed, and in that way the inquiry may be limited to a few items. Whether it was wise for plaintiff to ask this reference is not for us to decide. We are of opinion the court properly granted a jury trial as-to each item which the report found against defendant.

On the trial before the jury plaintiff offered the referee’s report of the evidence heard before him. The court sustained an objection to the offer. The statute above quoted does not provide that the referee shall report the evidence to the court. The motion by plaintiff for a reference did not ask that the referee be directed to report the evidence which he might take. The order of the reference did not direct the referee to report the evidence. The statute does not provide that at the jury trial therein authorized the evidence taken by the referee shall be admissible before the jury. All it does provide is that the report of the referee shall be prima facie evidence of all the facts therein found and reported. If the legislature had intended that the evidence taken before the referee should also be competent as evidence at the later jury trial, we think it would have been so stated in- the Act. As it was not so stated we conclude it was not so intended. We approve the conclusion on this subject reached by the Appellate Court for the Third District in Hawkyard v. Suttle, 188 Ill. App. 168. It is provided in said statute that the trial before the jury shall be “as other cases,” which means “as in other cases at law.” We are of opinion that the parties were required to produce their witnesses and documentary evidence before the jury, if they desired the jury to hear that proof, except where depositions had been taken pursuant to the statute on that subject. Moreover, the evidence taken before the referee and so offered by plaintiff is not abstracted, and therefore we are not required tó -determine its competency. After the court rejected said offer by plaintiff, it permitted plaintiff to introduce further proof. If plaintiff did not wish to rest on the referee’s report, it was given leave to call such witnesses and offer such books and documents as it desired. Plaintiff availed itself of this opportunity to a very slight extent. We find no error in the rulings on this subject. When plaintiff’s counsel was cross-examining Bootz, plaintiff offered page 12 of its cashbook to show that a certain check of Jobst-Bethard Company for $647.09 did not appear on that page under date of August 12, 1914. The court sustained an objection to that offer. Plaintiff had no right to introduce its own evidence while cross-examining defendant’s witness, and the objection was properly sustained. Besides, Bootz admitted during said cross-examination that said page was in his handwriting and that said check did not appear on that page, so it was not important to plaintiff to have said page in evidence to establish the admitted fact.

The instructions are not numbered, and those of which complaint is made are too lengthy to warrant insertion in this opinion. We therefore must refer to them in a very general way. Before this suit was brought there was a meeting at which Bootz and representatives of plaintiff and of defendant were present, and figures concerning the financial matters relating to Bootz were set down on a piece of paper and that paper was carried away, either by Bootz or by the representative of defendant. At the trial plaintiff’s counsel demanded the paper and defendant’s counsel stated that they did not have it. The court refused an instruction requested by plaintiff that this operated unfavorably to defendant. The instruction was so framed as to make the court tell the jury as a fact that the paper was delivered to defendant. This the court had no right to do. The evidence makes it probable that Bootz carried away the paper. He Was not a party at the time of the trial. Defendant could not be compelled to produce a paper which Bootz had. Bootz should have been served with a subpoena to produce the paper. If he did not comply that could not give rise to any inference unfavorable to defendant. The court properly refused the instruction.

The court refused an instruction requested by plaintiff, which placed upon defendant the burden of overcoming the report by the greater weight of the evidence. In our opinion, if, after treating the referee’s report as prima facie proof of the facts therein found and reported, the jury find the evidence is evenly balanced upon the allegations made by plaintiff,-the verdict should be for defendant.

■ The court refused an instuetion requested by plaintiff that if funds were collected through the department of Bootz which were.not accounted for to plaintiff, the legal presumption was that Bootz dishonestly appropriated said funds, unless the greater weight of the evidence proved that Bootz did not receive the same. The plaintiff showed that Bootz was stationed in a department where he received cash and checks and disbursed cash and made entries in a cash book; but Bootz had other duties to perform in other parts of plaintiff’s store, and in the performance of those duties he was often absent from that department, and he was generally absent therefrom during the noon hour. The proof showed that at least seven other persons occupied and worked in that department at different times when Bootz was absent therefrom. Under this state of the proof there was no such presumption as the instruction stated, from the mere fact that funds were collected in that department which were not accounted for to plaintiff. Also, defendant was not required to overcome plaintiff’s proof by the greater weight of the evidence. This instruction was properly refused.

The court had refused to admit the report as to certain items, amounting to $299.98, and they were not otherwise proved, and the court amended an instruction requested by plaintiff so- as to give effect to that ruling, and also to eliminate the proposition that defendant was required to overcome the report by the greater weight of the evidence. We approven these rulings. But that proposition was incorrectly retained in at least one instruction given for plaintiff.

The contract sued on required plaintiff, within 90 days after any loss thereby secured, to produce for investigation all books, vouchers and evidence in plaintiff ’s possession. Plaintiff requested an instruo tion which, among other things, said that plaintiff had done all that the contract required of it in submitting books to the defendant. The court modified that instruction by striking out the statement about the books. The evidence was in conflict as to whether plaintiff had. complied with that provision, and that was a question for the jury which the court properly refused to take from them.

In some of the instructions given at the request of defendant the jury were told that plaintiff must prove its case by a preponderance of the evidence, but in two instructions given at the request of defendant the, jury were told that plaintiff must prove its case “by a preponderance of the evidence.” The amended declaration practically charged Bootz with the crime of embezzlement. The general rule is that crime when charged in a civil suit must be proved beyond a reasonable doubt. People ex rel. Deneen v. Sullivan, 218 Ill. 419. McInturff v. Insurance Co. of North America, 248 Ill. 92. If this rule is applicable here, several other instructions on each side are incorrect, for they only require plaintiff to prove its case by a preponderance of the evidence. But we regard this as qualified by Foster v. Graf, 287 Ill. 559, where it is held that this rule does not apply where the person accused of the crime in the pleadings and evidence is not a party to the suit but is a stranger to .the record. Bootz, though originally a defendant, was dismissed from the suit before the amended declaration was filed. There is a sense in which Bootz is not a stranger to the record, for the entire litigation centers around his conduct, and whether he was personally dishonest and embezzled or misappropriated his employer’s funds. But in Foster v. Graf, supra, Byan, a clerk of appellant, had indorsed the name of appellant on the back of the checks payable to the latter, which appellee had cashed, and the question was whether Byan had authority to indorse his employer’s name on the back of said checks, or whether he forged said signature. If he forged them he was guilty of a crime, and the case turned on the question whether, Ryan, a clerk of the payee of the checks, was guilty of forgery. The cases do not seem different in principle. If we are right in this, then it was error to give said two instructions for defendant which required plaintiff to prove its case by “a clear preponderance of the evidence.” Indeed, counsel for defendant only claim that plaintiff should prove its case by a preponderance of the evidence, and thereby practically concede that said instructions are erroneous. Crabtree v. Reed, 50 Ill. 206; McDeed v. McDeed, 67 Ill. 545; Lenning v. Lenning, 176 Ill. 180; Nelson v. Fehd, 203 Ill. 120; 38 Cyc. 1755.

In another instruction given at the request of defendant the jury were told that to enable plaintiff to recover damages against defendant, “plaintiff must prove by positive affirmative evidence that the defendant is liable to the plaintiff.” This was very injurious to plaintiff, for plaintiff’s case was not supported by “positive affirmative” evidence, and in the very nature of the case plaintiff could not produce such proof, but its evidence consisted of many facts and circumstances which it was claimed tended to incriminate Bootz as charged in the declaration. The jury would not be likely to consider the referee’s report as “positive affirmative evidence,” but quite the contrary.

As the judgment must be reversed and a new trial awarded for the errors indicated, we deem it not necessary or proper to discuss the evidence, which is likely to be much more complete at another trial.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Niehaus, J., took no part.