Tartt v. Wahl , 1898 Ill. App. LEXIS 99 ( 1898 )

Mr. Justice Bigelow

delivered the opinion of the court.

There is no question that appellant never in fact received the money, but it is insisted on the part of appellees, who seem to be the heirs of the deceased pensioner, that the money was lost through the negligence of appellant. It is not easy to see that a thing can be lost that has not been first gained; and certainly, so far as appellees are concerned, it never had been gained by them, nor had they ever any right to it whatever. It was not property, even as to the pensioner herself. Until it was received in fact, it was a proffered gift of the government, that could be recalled at any time. It had no likeness to a debt owing to the ward.

It is true that the property that appellees would probably have inherited, had the money been received by appellant, would have been greater than it now is,’ but that is not a sufficient reason why appellant should be compelled to pay it. He owed no duty to appellees. He had secured no benefit to himself at their expense, and there was no privity between himself and appellees. Winterbottom v. Wright, 10 Mees. & Wel. 109; Buckley v. Gray, 110 Cal. 339. In the latter case the defendant, an attorney at law, was employed by plaintiff’s mother to draw her will, which she directed should be so drawn as to leave all the residue of her estate to plaintiff and a brother, to the exclusion of the children of a deceased son. The defendant not only drew the will so negligently that the grandchildren took under it, but also had the plaintiff, though named in the will as a devisee, subscribe it as a witness to it, whereby its provisions were made void as to him, and the property which plaintiff failed to get on account of the negligence of the defendant amounted to $85,000. In deciding the case the Supreme Court of California said : “ The rule is universal, that for an injury arising from mere negligence, however gross, there must exist between the parties inflicting the injury and the one injured, some privity, by contract or otherwise, by reason of which the former owes some legal duty to the latter.”

The fact was plainly evident that plaintiff’s mother intended that plaintiff should be benefited as a result of her contract with defendant in drawing her will, and as to this the court said: “ Although the ultimate consequential injury to the plaintiff would appear to have been great, it was, so far as defendant is concerned, damnum absque inguria, against which courts are powerless to relieve.”

Ko right of action ever accrued to the ward, and there was nothing to survive to her heirs, hence it is not necessary to inquire what actions survive under the statutes.

We hold that appellant bore no such relation to appellees as would give them, a right of action to recover of him the amount of the unpaid pension, on the ground that he was negligent in not collecting the money, even if it be admitted that appellant was grossly negligent in the matter, which we are not prepared to hold.

The jurisdiction of the County Court to try the question whether appellant was grossly negligent in not collecting the two installments of pension has not be raised, and we express no opinion upon it, further than to observe that if it had not, the Circuit Court did not get jurisdiction of the question by appeal.

Because the Circuit Court erred in ordering the item of $72 to be charged to appellant in his report, the order of that court is reversed, and the order of the County Court is affirmed.