{ "id": 5313673, "name": "Donald Scheffki, Plaintiff-Appellee, v. The Chicago, Milwaukee, St. Paul & Pacific Railroad Company, Defendant-Appellant", "name_abbreviation": "Scheffki v. Chicago", "decision_date": "1971-08-31", "docket_number": "No. 53961", "first_page": "557", "last_page": "563", "citations": [ { "type": "official", "cite": "1 Ill. App. 3d 557" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "27 L.R.A. 206", "category": "reporters:federal", "reporter": "L.R.A.", "year": 1895, "opinion_index": 0 }, { "cite": "39 N.E. 484", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1895, "opinion_index": 0 }, { "cite": "154 Ill. 141", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 837632 ], "year": 1895, "opinion_index": 0, "case_paths": [ "/ill/154/0141-01" ] }, { "cite": "104 N.E.2d 231", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "411 Ill. 368", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5312919 ], "opinion_index": 0, "case_paths": [ "/ill/411/0368-01" ] }, { "cite": "126 N.E.2d 836", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "5 Ill.2d 614", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2703925 ], "weight": 2, "pin_cites": [ { "page": "625" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/5/0614-01" ] }, { "cite": "147 N.E.2d 714", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "16 Ill.App.2d 227", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5179716 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/16/0227-01" ] }, { "cite": "81 N.E.2d 866", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "401 Ill. 181", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5306511 ], "opinion_index": 0, "case_paths": [ "/ill/401/0181-01" ] }, { "cite": "79 Kan. 311", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 1139459 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/kan/79/0311-01" ] }, { "cite": "155 N.E.2d 839", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1909, "opinion_index": 0 }, { "cite": "20 Ill.App.2d 305", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5196471 ], "year": 1909, "opinion_index": 0, "case_paths": [ "/ill-app-2d/20/0305-01" ] }, { "cite": "75 N.E.2d 783", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "332 Ill.App. 653", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5039672, 5042179 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/ill-app/332/0653-02", "/ill-app/332/0653-01" ] }, { "cite": "177 N.E.2d 720", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "32 Ill.App.2d 341", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5231289 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/ill-app-2d/32/0341-01" ] }, { "cite": "167 Ill. App. 190", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2797205 ], "opinion_index": 0, "case_paths": [ "/ill-app/167/0190-01" ] }, { "cite": "107 N.E. 165", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "265 Ill. 448", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4780233 ], "opinion_index": 0, "case_paths": [ "/ill/265/0448-01" ] }, { "cite": "200 N.E.2d 143", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "50 Ill.App.2d 389", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5275655 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/50/0389-01" ] }, { "cite": "170 N.E.2d 564", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "20 Ill.2d 548", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2737854 ], "opinion_index": 0, "case_paths": [ "/ill-2d/20/0548-01" ] }, { "cite": "244 N.E.2d 851", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "104 Ill.App.2d 462", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1601079 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/104/0462-01" ] } ], "analysis": { "cardinality": 755, "char_count": 14003, "ocr_confidence": 0.723, "pagerank": { "raw": 2.3774434985735887e-07, "percentile": 0.7964871697153 }, "sha256": "6a7269c162a60dfd57f43ed4e85f8a8d9406c1998be1327941dcf55a7394656c", "simhash": "1:23417e29c83183cb", "word_count": 2310 }, "last_updated": "2023-07-14T15:27:55.359601+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Donald Scheffki, Plaintiff-Appellee, v. The Chicago, Milwaukee, St. Paul & Pacific Railroad Company, Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE LEIGHTON\ndelivered the opinion of the court:\nThis appeal is from an order which set aside a release and from an $85,000 judgment entered against the defendant. Two issues are presented. 1. Whether the evidence supports the order. 2. Whether the jury was properly instructed concerning the law regarding trespassers. A summary of the facts is necessary for an understanding of the issues.\nOn AprH 23, 1954, plaintiff, Donald Scheffki, then twelve years of age, and another boy, climbed the elevated embankment of defendant\u2019s railroad tracks at Bloomingdale and Marshfield Avenues in Chicago. While attempting to \u201cflip\u201d a boxcar in the middle of a moving train of freight, plaintiff slipped, fell and the train passed over his legs, causing severe injuries. He was taken to a hospital where both legs were amputated above the knees. June 4, 1954, plaintiffs father, Clement J. Scheffki, as plaintiff\u2019s guardian, for the sum of $15,000 in full settlement, executed a release discharging the defendant \u201c[o]f and from all claims and demands whatsoever, \u201c * *\u201d which the plaintiff had or may thereafter have for the injuries he received on April 23, 1954. The settlement was approved by the probate court of Cook County on the application of Clement Scheffki, pleadings and papers having been prepared by a lawyer selected and paid by the defendant.\nHaving attained his majority, plaintiff, on August 27, 1963, filed a three-count complaint alleging causes of action at law for damages in the sum of $400,000. In Count I, plaintiff alleged that the release which his father gave the defendant was obtained through a lawyer who was hired and paid by the defendant; that he now being an adult, disavowed and disaffirmed the release because it was \u201c[pjrocured by a fraud upon the plaintiff and upon the probate court # Plaintiff invoked the court\u2019s chancery jurisdiction, praying that the settlement made by his father be adjudged void and of no effect, and that the release be set aside. The trial court first heard Count I.\nClement Scheffki testified that he was a man with an eighth grade education. He said that two employees of the defendant visited him while his son was in the hospital and told him that they had heard of cases where defendant paid $5,000 and $10,000 for cases like the plaintiff\u2019s. Scheffki said that the two employees cautioned him not to get a lawyer because if he did, defendant would not have anything to do with him. He went on to testify that a short time after plaintiff was released from the hospital, a claims adjuster for tire defendant telephoned him and told him to come and settle the plaintiff\u2019s claim with defendant right away. When Scheffki said he had no automobile, the adjuster came to his home and drove him and his wife to the company office. During their conversations, the adjuster told Scheffki that the settlement was to be for $15,000. In defendant\u2019s claims office, the adjuster told Scheffki that he \u201c[t] bought I got a very good settlement, as long as I was willing to cooperate and didn\u2019t get any lawyer, why, he would have a lawyer for me and he\u2019d take me to the lawyer, and we would get everything settled.\u201d Scheffki and his wife were taken to the office of a lawyer selected by defendant\u2019s employees.\nThere, according to Scheffki, the lawyer told him that the settlement was a very good one. Scheffki was given papers to sign. These were pleadings in a minor\u2019s settlement proceeding which was to be instituted in the probate court of Cook County seeking court approval of the settlement. The lawyer, according to Clement Scheffki, told him that if he were asked, he was to tell the probate judge that he thought the settlement was a good one. That same afternoon, in a two minute hearing, an estate for the plaintiff was opened and Clement Scheffki was appointed plaintiffs guardian. The court approved the settlement and the release was signed by Clement Scheffki on behalf of plaintiff in return for the sum of $15,000 which was deposited in two trust accounts for the plaintiff.\nPlaintiff\u2019s other witness was the lawyer. He testified that sometime before June 4, 1954, he received a telephone call from defendant\u2019s adjuster. Time records which refreshed the lawyer\u2019s recollection showed that the call was made on June 3, the day before Clement Scheffki and his wife were brought to the lawyers office. The pleadings which Scheffki signed were prepared the day before they came to the office. The lawyer testified that his fees were paid by the defendant; and that all the facts he knew about the case he obtained from the file delivered to his office by defendant\u2019s adjuster. The lawyer testified that he did not handle personal injury cases for plaintiffs nor had he represented defendants in that kind of litigation. The lawyer admitted he made no independent investigation of plaintiff\u2019s case before the settlement was presented for approval to the probate court. He was shown the pleadings he prepared which reflected an error concerning the place of the accident in which plaintiff was injured. He testified that when he appeared before the probate judge he told the court his fees were being paid by the defendant; however, he did not tell the judge that he had been selected by defendant\u2019s employees to represent plaintiffs family.\nThe adjuster was called as a witness for the defendant. Neither in his direct nor in his cross-examination did he deny the statements attributed to him by Clement Scheffki. He testified that when he discussed the settlement of plaintiff\u2019s case with Scheffki, the latter appeared to know and understand what was said to him. He said that Clement Scheffki was sober, indicated an understanding of the nature of the proceedings instituted on behalf of his son and understood the settlement being made.\nAfter hearing the witnesses, the trial judge ordered \u201c[t]hat the release heretofore signed on June 4, 1954, by Clement Scheffki as Guardian of the Estate of Donald Scheffki, a minor, age twelve, releasing defendant Chicago, Milwaukee, St. Paul and Pacific Railroad Company, a corporation, is hereby vacated and declared a nullity.\u201d Thereafter, on an amended one-count complaint, plaintiff\u2019s cause of action for personal injuries was heard by a jury. The trial judge refused five instructions tendered by defendant. A $100,000 verdict in favor of plaintiff was returned. The trial judge reduced it by the $15,000 which defendant had paid plaintiff\u2019s father on June 4, 1954. A judgment was entered against defendant in the sum of $85,000.\nFrom these facts, defendant contends that the evidence fails to support the order which set aside the release. It argues that plaintiff did not prove fraud or mutual mistake and that plaintiff\u2019s father understood the transaction into which he entered with defendant, including the settlement negotiations, the probate proceedings and execution of the release. Martin v. Po-Jo, Inc., 104 Ill.App.2d 462, 244 N.E.2d 851 is cited to support this position. However, this citation is not in point.\nDefendant\u2019s argument overlooks that this case involves a minor. It is the public policy of this state that rights of minors be carefully guarded. (Muscarello v. Peterson, 20 Ill.2d 548, 170 N.E.2d 564.) A minor who becomes a party to a litigation is a ward of the court, and a duty devolves upon that court to protect his rights. Giles v. Kuennen, 50 Ill.App.2d 389, 200 N.E.2d 143. Martin v. Po-Jo, Inc. did not involve the claim of a minor.\nWe attach significance to the testimony of the lawyer that he was selected and paid his fee by defendant, and trusted with defendant\u2019s file concerning plaintiff\u2019s case. The lawyer made no independent investigation of the accident in which plaintiff was injured; he relied on the representations of defendant as to the material facts which affected the rights of the parties involved. He never interviewed the plaintiff. He never advised plaintiff\u2019s father and mother concerning their rights with regard to the acceptance or rejection of the settlement suggested by defendant through its duly authorized representatives. Indeed, an important role of the lawyer was to see that plaintiff\u2019s father and mother signed the papers prepared the day before, and that the release for which defendant had bargained was executed before the $15,000 check was delivered to plaintiff\u2019s father. The lawyer never denied that he told plaintiffs father how to respond to the probate judge\u2019s inquiry concerning his satisfaction with the settlement into which he had entered on behalf of plaintiff. Defendant points to the lawyer\u2019s testimony that he had represented other minors at the request of defendant prior to the time he acted for plaintiff\u2019s family. It is insisted that in all these cases the lawyer represented the estate of the minor, not the defendant.\nThis construction of the relation between the parties is a sophism. Men of experience know that a railroad corporation wiU not trust its files to a lawyer who represents parties with interests adverse to it. It is more the truth to conclude, as apparently did the trial judge, that when defendant sent its file of plaintiff\u2019s case to the lawyer, it knew that the lawyer was going to protect its interests. Thus, the lawyer was acting in the dual capacity of protecting the interests of defendant while appearing to act on behalf of plaintiff.\nIt is a firmly established rule, in this jurisdiction and in others, that a lawyer cannot represent conflicting interests nor undertake to discharge inconsistent duties, no matter how honest his motives or intentions. (People v. Gerold, 265 Ill. 448, 107 N.E. 165.) The rule is a rigid one. It is designed to prevent not only the dishonest practitioner from fraudulent conduct, but to preclude the honest practitioner from putting himself where he must choose between reconciling conflicting interests and protecting rights which he should represent. Leman v. Steele, 167 Ill. App. 190. Indeed, had the probate judge known the facts disclosed to the trial judge, the lawyer would have been removed by the probate court because he was representing \u2018adverse, conflicting and antagonistic interests in the same litigation, * * * Korman v. Matthias, 32 Ill.App.2d 341, 177 N.E.2d 720, citing Beerly v. The Wm. Meyer, Co., 332 Ill.App. 653, 75 N.E.2d 783. There need not have been actual fraud in the transaction. 46 Am.Jur.2d, Judgments, \u00a7 726 (1969). Therefore, it was not necessary that plaintiff prove fraud. It was enough that the evidence establish, as it did in this case, that defendant selected, employed and paid a lawyer who (regardless of the honesty of his purposes) represented conflicting interests when plaintiff's father gave defendant the release. It is as old as the Synoptic Gospels that \u201cYe cannot serve God and mammon.\u201d Ancient though it be, this moral finds expression in the principles of equity which the trial judge correctly appfied when he set aside the release. See In re Anderson\u2019s Estate, 20 Ill.App.2d 305, 155 N.E.2d 839; Missouri Pac. Ry. v. Lasca (1909), 79 Kan. 311, 99 P. 616.\nDefendant\u2019s other question concerns five instructions which it requested the trial judge to give the jury. Three of these (defendant\u2019s Nos. 10, 11 and 12) were from Illinois Pattern Instructions. They defined a trespasser and the duties of defendant to trespassers on its land. The remaining two instructions (defendant\u2019s Nos. 13, 14) were taken from two decisions of Illinois reviewing courts. (Briney v. Illinois Central, 401 Ill. 181, 81 N.E.2d 866 and Higgins v. B. & O. RR. Co., 16 Ill.App.2d 227, 147 N.E.2d 714.) None of these instructions referred to the fact that at the time of the accident plaintiff was a child.\nDefendant argues that these instructions should have been given. It insists that, though he was a child, plaintiff was a trespasser on defendant\u2019s property. In support of this argument defendant relies on two decisions of the Illinois Supreme Court, each holding that children on a railroad company\u2019s property without its authority are trespassers to whom the company owed no duty except to avoid willfuUy or wantonly causing them injury. Defendant complains that contrary to this rule of law, plaintiff's claim was submitted to the jury on the theory of Kahn v. James Burton Company, 5 Ill.2d 614, 126 N.E.2d 836 (a case which involved trespassing children), decided approximately a year after plaintiff was injured, and not applied to a moving railroad train until approximately nine years later.\nKahn v. James Burton Company did not declare a new rule of law. In a new context, it applied an old one. The Supreme Court, citing Wagner v. Kepler (1952), 411 Ill. 368, 104 N.E.2d 231, said, \u201cIt is recognized * * * that an exception exists where the owner or person in possession knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risk involved, and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children.\u201d 5 Ill.2d 614, at 625. The court went on to say, citing City of Pekin v. McMahon, 154 Ill. 141, 39 N.E. 484, 27 L.R.A. 206 (decided in 1895), that it is for the jury to determine whether this exception applies. The issues formed by the pleadings made these rules applicable, even before Kahn was decided. For these reasons we conclude that the trial judge properly refused to give the five instructions.\nThe order and judgment are affirmed.\nOrder and judgment affirmed.\nSCHWARTZ, and STAMOS, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE LEIGHTON" } ], "attorneys": [ "Reedy, McDonnel & Summers, of Chicago, (Thomas J. McDonnell, of counsel,) for appellant.", "Harold A. Liebenson and Harry J. Director, of Chicago, for appellee." ], "corrections": "", "head_matter": "Donald Scheffki, Plaintiff-Appellee, v. The Chicago, Milwaukee, St. Paul & Pacific Railroad Company, Defendant-Appellant.\n(No. 53961;\nFirst District\nAugust 31, 1971.\nReedy, McDonnel & Summers, of Chicago, (Thomas J. McDonnell, of counsel,) for appellant.\nHarold A. Liebenson and Harry J. Director, of Chicago, for appellee." }, "file_name": "0557-01", "first_page_order": 577, "last_page_order": 583 }