117 Ill. App. 512 | Ill. App. Ct. | 1905
delivered the opinion of the court.
The appellant in this case has a judgment at law against him in favor of Ida Rohn, administratrix of the estate of William Rohn, Jr., deceased, which he undoubtedly with entire sincerity believes to be unjust, and the payment of which he is very desirous to escape. But we think that all hopeful paths to this end were tried and found closed to him before he took this appeal.
It is apparent from the statement of facts preceding this opinion that he could not have been held liable in the suit at law in the Superior Court, unless the jury in that court had found, and the court had confirmed the finding, that he was guilty of negligence in the matter of the collection of the Wildner note at maturity, which had resulted in the loss to the estate of William Rohn, Jr., of the entire amount of it. It was not that he was executor de son tort, wdiich proximately caused that liability; it was that, being-executor de son tort, he was negligent in the duties which he took upon himself; grossly negligent, perhaps, for gross negligence is generally nothing—as has been sometimes remarked—but negligence with an epithet.
The Appellate Court in affirming the judgment, said : liWe think the evidence such that the jury had a right to find that appellant did not, in respect to the collection of this note, exercise such diligence as prudent men ordinarilv bestow upon their affairs.” This expresses the degree of negligence which was necessary to make the defendant liable to the plaintiff in that case, and it would not render it greater to call it gross, nor less to withhold that description from it. The Supreme Court, when it came to pass upon the case, said : “ The judgment of the Appellate Court
must be treated by us as settling the fact that defendant was guilty of negligence in not exercising such diligence for the collection of the note as a man of ordinary prudence would have exercised in his own affairs—and also that the loss and damage were equal to the damages assessed.” In this direction, therefore, the path out from the liability, which appellant finds burdensome, was finally closed by these adjudications.
It is res judicata that he was negligent enough in respect to the collectio.n of this note to render him liable to the estate of William Rohn, Jr., for the loss to that estate entailed by it. It is true that the suit at law in which these adjudications were made was brought by Ida Rohn as administratrix of the estate of William Rohn, Jr., while in this suit at ba,r she is made a party defendant individually as well as such administratrix, and substantial relief is claimed against her individually and personally. But the application of the doctrine of res judicata is not entirely confined to suits between the same persons only, litigating in precisely the same capacities. When in a court of competent jurisdiction a given question of fact must necessarily be decided under the issues framed in a cause, and it is so decided, the decision becomes res judicata and controlling in any other cause, as between parties who had the right and opportunity to prosecute and defend, examine and cross-examine in the previous case, eyen though other parties, or the same parties in other capacities, may be also involved. Wells on Res Adjudicata, sec. 19. In the case'at law under consideration, appellant had such right and opportunity to defend against the allegation of the plaintiff’s declaration that he “ by due diligence might have collected said money, but negligently did not collect the same.” He failed to make good that defense, and therefore we must begin the consideration of this case on the basis that there has been a conclusive adjudication of negligence sufficient to make him liable to the estate of William Bohn, Jr., in his capacity of executor de son tort.
But appellant contends, and has alleged in the bill in this case, that in favor of Ida Bohn in her individual character, he is under no liability that ought to be enforced against him, because, first, it was at her solicitation and request that he put himself into the position which made him an executor de son tort, and that he should as to her individually be treated, therefore, as a bailee without reward only, and subjected to no liability except that which springs from bad faith, which has not been adjudicated against him; and, secondly, that she cooperated with him in his tortious ex-ecutorship, and was herself so negligent in the matter of the collection of the note in question as to prevent her from benefiting at his expense by a wrong in which she was equally, or at ail events jointly, culpable. On these grounds, as we understand appellant’s contention, it is urged that Ida Bohn individually is equitably estopped from claiming the right to enforce to her own personal advantage the judgment which she holds as administratrix against him. On this ground this bill was brought, and the court asked to take charge of the administration of the estate and so administer it and deal with the judgment in question as to preserve its benefit to the other persons interested in the estate of William Rohn, Jr., but to deny such benefit to her. We think there is no doubt of the right of a court of chancery to do this if a proper case were made. It is quite clear that it might well be, under a hypothetical state of facts, that an equitable estoppel of the nature indicated would be worked, and that the court should give it due effect. This, the Supreme Court in its opinion affirming the judgment plainly recognized. “ If,” it says, treating of an instruction refused by the trial court, “ facts existed requiring that as between defendant and the widow, the loss ought to be taken from her distributive share of the estate, it cannot be done in this suit, and such relief must be sought in a court of equity.” But it proceeds: “ Whether she as an individual entitled to a distributive share of the estate was in any manner responsible for Ms failure to collect the notes, is not a question in this case, and there was no error in refusing the instructions asked by defendant.”
But it is plain that under the circumstances of this case, before appellant can establish this equitable estoppel against Ida Rohn on the ground pointed out by the Supreme Court, that she was in some manner responsible for his failure to collect the note in questipn, he must assume and carry the burden of proving it. Neither '■'■allegata'''’ nor “probata” in this cause, outside of the claim that she induced him to become executor “ de son tort ” of the estate, which we will discuss further on, seems to us to meet this requirement. At all events, even if there can be said to be implied in the various allegations of the appellant’s bill a claim that Ida Rohn was in any way a participant in the negligence in collection of the note in question which has made him liable to the estate, there certainly is nothing in the evidence heard by the chancellor below which can be said to establish it. The appellant testified to nothing about it, and Ida Rohn testified that she never had the note in her possession, that she did not know she was the payee of it, that she did not know even that it was not secured, and first learned of it after Wildner failed and appellant came and said to her that her money was lost. Nor is there any other testimony about it. It is indeed said in appellant’s argument that the declaration of trust recited that the two Wildner notes were unsecured, but this is a mistake. It recites simply that of $11,000 in notes received, some were secured and some unsecured. It is idle under this state of the evidence to say that Ida Rohn is estopped from claiming, through any action of hers relating to the collection of this note, the benefit of appellant’s adjudged liability to the estate.
But it is claimed and an attempt was made by appellant to prove that Ida Rohn requested and solicited him to act as executor de son tort, and is thereby estopped from claiming the benefit of a liability which resulted therefrom. It seems hardly worth while to discuss at length the soundness of the proposition of law involved in this contention, for the alleged fact on which it rests was specifically found by the chancellor below not to exist, and even apart from the consideration that should be given to the chancellor’s seeing and hearing the witnesses, we think the finding plainly justified. It did appear that after appellant had taken possession of the proceeds of the estate, Ida Rohn requested there should be made and that she obtained a declaration of trust by the appellant, but that is a very different thing from requesting and soliciting that the appellant should take possession of the assets of the estate or their proceeds and administer them. So, as we said above, it seems to us that before this appeal was taken, the escape from ultimate liability on this judgment was foreclosed to appellant. But we are not of the opinion that even if appellant had proved the request and solicitation alleged in his bill, he would have been entitled to the decree prayed for, or that an equitable estoppel would have been worked against Ida Rohn. The foundation of-his liability was his negligence in conducting the administration of the estate which he took into his possession, not its mere taking. That Ida Rohn also intermeddled with it and became so far an executor de son tort, is beside the question. It was not in anything that she did or neglected to do that the liability arose. Despite the appellant’s assumption of powers outside legal authority, he would not have been liable had he not been negligent in their execution.
And even if the view could be taken that Ida Rohn’s “ request and solicitation ” made him, as to her, a mandatary, or bailee without hire, and not an executor de son tort at all— a view which, even if the request and solicitation had been proved we could not assent to—would it necessarily follow that there would be no liability, so far as she was concerned. He specifically undertook the collection of the notes, and is-conclusively adjudged to have been negligent and to have failed in that duty taken upon himself. Under these circumstances, neither the fact that he so undertook" it without compensation, or at the solicitation of Ida Bohn, would, we think, relieve,him from liability for loss to her resulting from his neglect to execute faithfully the duty thus voluntarily assumed. Walden v. Karr, 88 Ill. 49.
The exclusion of the offered evidence which is complained of, we do not think constituted reversible error. Such evidence seems to us, as it did to the trial court, to be immaterial and to throw no light on the vital questions in the cause.
The judgment of the Superior Court is affirmed.
Affirmed.
