The rule of the Indiana Industrial Board, that if the defendant relies upon the special defense of wilful misconduct on the part of the employee, such special defense must be pleaded by an affirmative answer at least five days before the date set for the hearing, is a reasonable and valid rule, and the failure of the employer to file such an answer five days before the hearing eliminates the question of wilful misconduct from the case. Ibid. XII. Burden of proof. The burden of proving that an employee was guilty of conduct amounting to serious and wilful misconduct is upon the employer. Freeman v. East Jordan & S. R. Co. (1916) 191 Mich. 529, 158 N. W. 204; Parson v. Murphy (1917) 101 Neb. 542, L.R.A. 1918F, 479, 163 N. W. 847, 16 N. C. C. A. 174; WICK V. GUNN (reported herewith) ante, 107; British Columbia Sugar Ref. Co. v. Granick (1910) 44 Can. S. C. 105, 2 N. C. C. A. 852, affirming (1910) 15 B. C. 198. Car Corp. v. Borchardt (1919) App. —, 122 N. E. 433. XIII. Question of law or fact. The existence of "serious and wilful misconduct" under any particular circumstances is usually considered a question of fact. Beasman v. Butler (1918) Md., 105 Atl. 409; Nickerson's Case (1914) 218 Mass. 158, 105 N. E. 604, Ann. Cas. 1916A, 790, 5 N. C. C. A. 645; Johnson v. Marshall, Sons & Co. [1906] A. C. (Eng.) 409, 75 L. J. K. B. N. S. 868, 94 L. T. N. S. 828, 22 Times L. R. 565, 5 Ann. Cas. 630, 8 W. C. C. 10; Casey v. Humphries [1913] W. C. & Ins. Rep. (Eng.) 485, W. N. 221, 29 Times L. R. 647, 57 Sol. Jo. 716, 6 B. W. C. C. 520, 4 N. C. C. A. 881. Wilful misconduct is a matter of affirmative defense. United States Fidelity & G. Co. v. Industrial Acci. Commission (1917) 174 Cal. 616, 163 Pac. 1013 (the court holding that it was not the rule that innocence of wilful misconduct on the part of the injured or killed workman must be affirmatively established). So, the burden of proof that the employee has wilfully failed or refused to use the safety appliances required by statute is upon the employer under the Indiana statute. Haskell & B. Car Co. v. Kay (1918) Ind. App. 119 N. E. 811; Indianapolis Light & Heat Co. v. Fitzwater (1918) App. Co. v. Kuntz (1919) Ind. 121 N. E. 126; Peru Basket Ind. App. 122 N. E. 349; General American Tank Since the existence of serious and wilful misconduct on the part of the employee is a question of fact, the courts will not interfere with the findings of the arbiter or Commission or other administrative body charged with passing upon the facts in the first instance. Leishmann v. Dixon [1910] S. C. 498, 47 Scot. L. R. 410, 3 B. W. C. C. 460. The Iowa court cannot interfere with the finding of the statutory tribunal that there was no wilful misconduct, and no intention to inflict the injury on the part of the employee. Pierce v. Bekins Van & Storage Co. (1919) Iowa, —, 172 N. W. 191. Whether the fact that a farm servant fastened the reins to the breeching, instead of holding them in his hand, in violation of the General Turnpike Act, amounts to serious and wilful misconduct, is a question of fact, and the finding by the sheriff-substitute that it did not will not be reviewed on appeal. Mitchell v. Whitton [1906-07] S. C. (Scot.) 1267. A finding by the Commission that although an injury to an employee was due to his intoxication, it was not caused by his wilful misconduct, so as to relieve the employer from liability. under the statute, cannot be disturbed by the court, where it has no authority to examine the evidence. NekoosaEdwards Paper Co. v. Industrial Commission (1913) 154 Wis. 105, L.R.A. 1916A, 348, 141 N. W. 1013, Ann. Cas. 1915B, 995. Wilful failure of a workman to use guards or safety appliances provided in pursuance of law or by order of the state labor commissioner is a question of fact to be determined by the Industrial Commission from the fact of each particular case; and if there is any evidence reasonably tending to support a finding of such Board that the failure to use such guards or appliances was not wilful, the action of the Board will not be disturbed. WICK v. GUNN (reported herewith) ante, 107. In a proceeding in which it was alleged that an injured workman who subsequently died from an attack of delirium tremens was guilty of wilful and intentional misconduct because he stated to the attending physician that he was not an "alcoholic," the extent to which he was addicted to the use of intoxicating liquors was a question of fact, and, having been determined by the Industrial Board, is not reviewable by the supreme court. Ramlow v. Moon Lake Ice Co. (1916) 192 Mich. 505, L.R.A.1916F, 955, 158 N. W. 1027. But it has been held that, inasmuch as no compensation can be awarded to a workman whose injuries were caused by his own wilful misconduct, the question whether the accident was caused by the wilful misconduct of the employee is one that goes to the jurisdiction of the Industrial Board, and is therefore open to inquiry by the court on certiorari. Great Western Power Co. v. Pillsbury (1915) 170 Cal. 180, 149 Pac. 35, 9 N. C. C. A. 466; Elk Grove Union High School Dist. v. Industrial Acci. Commission (1917) 34 Cal. App. 589, 168 Pac. 392, 15 N. C. C. A. 148. And of course, the finding of the Commission that the employee's injury was not caused by his intoxication or wilful misconduct is subject to review by the court, if totally unsupported by the evidence. North Pacific S. S. Co. v. Industrial Acci. Commission (1917) 174 Cal. 500, 163 Pac. 910. And the Indiana appellate court has held that the result of an inquiry as to whether the injury was due to wilful misconduct is a legal conclusion, rather than an ultimate fact, and hence is binding on the court only when justified by the ultimate facts in the case. Inland Steel Co. v. Lambert (1917) - Ind. App. - 118 N. E. 162. HUGO ALBERT WESKALNIES, Plff. in Err., JOHN F. HESTERMAN, Sheriff. Illinois Supreme Court - April 15, 1919. (288 Ill. 199, 123 N. E. 314.) applicability to farmer. W. M. G. 1. A sale of a farmer's stock and utensils is within the provisions of a Bulk Sales Law, making void as against creditors the sale in bulk of the major part of a stock of merchandise, or other goods and chattels of the vendor's business, otherwise than in the ordinary course of trade. [See note on this question beginning on page 132.] (288 Il. 199, 123 N. E. 314.) CERTIORARI to the Appellate Court, Second District, to review a judgment affirming a judgment of the Circuit Court for Dupage County (Slusser, J.) in favor of defendant, in a replevin action brought to recover possession of certain property. Affirmed. The facts are stated in the opinion of the court. Messrs. Bunge & Harbour for plaintiff in error. Messrs. Joseph A. Reuss, William R. Friedrich, and Mighell, Gunsul & Allen, for defendant in error: The court may permit a party to introduce evidence in support of his case or defense during the cross-examination of his adversary's witnesses, but the refusal of such permission is not error. McEniry v. Tri-City R. Co. 179 Ill. App. 152. The order in which testimony may be introduced rests in the discretion of the trial court, and where the discretion has not been abused this court, on appeal, will not interfere. Wheeler & W. Mfg. Co. v. Barrett, 172 Ill. 610, 50 N. E. 325. Farmer, J., delivered the opinion of the court: The appellate court for the second district affirmed a judgment of the circuit court of Dupage county for defendant in an action of replevin. On the petition of plaintiff this court granted a writ of certiorari, and the record is brought here for review. The undisputed facts are that the father of plaintiff in error, Albert Weskalnies, was engaged in the business of farming and dairying on a rented farm of 165 acres in Dupage county. He raised grain, hogs, and horses, and kept fifteen milch cows. He shipped the milk daily to Chicago. His son, Hugo Albert Weskalnies, plaintiff in the replevin suit and plaintiff in error here, lived with his father and 4 A.L.R.-9. worked for him on the farm from January, 1916. Plaintiff was thirtythree years old. On November 18, 1916, the plaintiff's father executed a bill of sale to him for all the property on the farm, except household furniture and 40 acres of corn in the shock, for the expressed consideration of $2,873.50. The bill of sale purported to evidence a sale to plaintiff from his father of fifteen cows, one bull, one boar, one sow, seventeen shoats, six horses, three colts, and a large number of various kinds of agricultural and other implements used on the farm. It embraced all the live stock and farm machinery used on the farm. The bill of sale was recorded in the recorder's office the day it was dated. On December 14, 1916, William Ehrhart, a creditor of Albert Weskalnies, obtained a judgment against him in the circuit court of Dupage county for $890.50 and costs. Execution was issued and delivered to the defendant, as sheriff of Dupage county, the same day the judgment was rendered, and on the 21st of December he levied on the property nies. as the property of Albert WeskalThereupon plaintiff, Hugo Albert Weskalnies, replevied it from the sheriff, claiming he had bought it from his father and that it belonged to him. He had advertised the property for sale at public auction the day it was levied upon. After much effort and labor the issues were finally joined, and the cause heard by jury. It was stipulated during the trial that the only property involved in the suit was the live stock. At the conclusion of all the evidence, the plaintiff's counsel moved the court to instruct the jury to find the issues for the plaintiff, and that the right of property in the live stock (describing it) and possession thereof were in him. The court denied the motion. Thereupon counsel for defendant moved the court to instruct the jury to find the right of property and right of possession of the live stock to be in defendant, describing in the motion fifteen cows, one bull, one boar, one sow, seventeen shoats, six horses, and three colts. motion was allowed, and the court instructed the jury to find the issues for the defendant and that the right to possession of the live stock (describing it) was in defendant. The jury returned a verdict finding "the ownership and right of possession" of the live stock (describing the same live stock in the same manner it was described in the instruction) were in defendant. Motion for new trial was overruled, and the court rendered judgment that defendant have and retain the property replevied by virtue of the writ and that he recover his costs. The No real effort appears to have been made by defendant to prove that no consideration was paid for the property by plaintiff. The only testimony we find in the abstract which has any bearing on that question is the testimony of plaintiff himself, who testified he was thirty-three years old, and that from 1906 to 1910 he had worked for his father on another farm for $300 per year. Whether he had been paid for his services is not shown. He worked for his father on the farm he was living on in 1916 from January to the time the bill of sale was made, but what, if anything, he was to be paid for his work is not shown. The circuit court and the appellate court held that the sale was fraudulent and void because it was made in violation of the Act of 1913, called the Bulk Sales Act, and plaintiff contends this was erroneous; that said act does not apply to one engaged in farming, but applies only to those engaged in the business of selling merchandise, commodities, and other wares; that the property sold by Albert Weskalnies was the tools and instrumentalities used in conducting his farming operations, and the Bulk Sales Act does not apply in such case. No attempt was made by Albert Weskalnies to comply with the Bulk Sales Act, and if the act applied to him, then the sale of the property to plaintiff was fraudulent and void as to creditors. The first Bulk Sales Act in this state was passed by the legislature in 1905. Laws 1905, p. 284. That act was expressly limited in its application to the sale of stocks of merchandise, and in Charles J. Off & Co. v. Morehead, 235 Ill. 40, 20 L.R.A. (N.S.) 167, 126 Am. St. Rep. 184, 85 N. E. 264, 14 Ann. Cas. 434, it was held unconstitutional. It was pointed out in that case that the act did not apply to farmers, hotel keepers, livery or transfer companies, publishers, mine owners, and others mentioned, and, the court held that there was no reason or qualification connected with a stock of merchandise, or persons dealing in the same, which authorized the legislature to mark it or them for special protective legislation, from which all other classes of persons, and property were excluded. In 1913 the legislature passed another Bulk Sales Act. Laws 1913, p. 258. That act declares fraudulent and void as against creditors "the sale, transfer, or assignment in bulk of the major part or the whole of a stock of merchandise, or merchandise and fixtures or other goods and chattels of the vendor's business, otherwise than in the ordinary course of trade and in the regular and usual prosecution of the vendor's business," without compliance with the provisions of the act. Section 3 provides that the act shall include corporations, associations, copartnerships, and individuals who are parties to (288 Ill. 199, 123 N. E. 314.) any sale of goods in bulk, but not to sales by executors, administrators, receivers, trustees in bankruptcy, or by any public officer under judicial process, nor to the sales of exempt property, nor to sales made in the ordinary course of trade and in the regular and usual prosecution of the vendor's business, nor to sales made in good faith at public auction when notice is published in a newspaper of general circulation in the county where the sale is made, ten days before the sale, or by posting notices in five public places ten days before the sale. That act was held valid in G. S. Johnson Co. v. Beloosky, 263 Ill. 363, 105 N. E. 287. The court said: "It must be assumed that the legislature, in passing the new act, had before it the decision of this court holding the former act unconstitutional because it was special class legislation, and that it was the intention of the general assembly, in passing the later act, to obviate this objection by passing a general act applicable indiscriminately to the sale of any goods and chattels in the manner inhibited by § 1 of said act. Construing the new act as a general law which prohibits the sale of any goods and chattels in bulk, otherwise than in the ordinary course of trade in the regular and usual prosecution of business, the objection to which the former statute was open is obviated." farmer. It seems very clear from the history of the legislation and the language of the act that it was intended to, and does, apply to the sale of Balk Sales Law the property made applicability to by Albert Weskalnies to plaintiff. It was a sale in bulk of the major portion of the vendor's property, and was not made "in the ordinary course of trade and in the regular and usual prosecution of the vendor's business." There was no error in the holding of the circuit and appellate courts that the sale was fraudulent and void as to creditors. Plaintiff also contends the levy of the execution on the property was void because it was made less than ten days after the execution was issued and received by the sheriff. It is conceded the judgment debtor was notified of the execution, although the printed notice to him was not signed by the sheriff. The point relied upon by plaintiff as rendering the levy void is that it was made seven days after the execution was issued, whereas the statute gives a judgment debtor desiring to avail himself of the benefits of the personal property exemption allowed him ten days after notice of execution to make and deliver a schedule of his personal property to the officer having the execution. This position of plaintiff is untenable. able. In the first place, the judgment debtor, so far as this record shows, never de- Executionsired or intended to time for levyexemption. claim his exemptions out of the property in controversy. He denied it was his property, and, of course, he could not claim his exemptions out of the property without claiming to own it. He had made a purported sale of it to plaintiff, who claimed it as his and had published notice of his intention to sell the property at public auction the day the levy was made. Under the circumstances the sheriff was not required to await the expiration of the ten days before levying the execution when he knew the property would be sold and disposed of before that time. Further, the levying of the execution before the ten days expired would not operate to de- time for claimprive the judgment debtor of the full period allowed by law to make and present his sched ule. He would have a right to the ten days to make and present his schedule, and if levy was made be fore the expiration of that time h could present his schedule after levy and within the ten-day period. The levy before that time could not deprive him of the right to claim his exemptions if he desired to do so. Here the judgment debtor did not desire to claim his exemptions out ing exemption. |