author: Mr. Justice Matchett Mr. Justice Barnes

text:
    Joseph Wise, Appellee, v. Oetting Bros. Ice Company, Appellant.
    Gen. No. 23,696.
    Master and servant, § 838

      —when shown that driver is employee of ice company so as to render master liable for his negligence. In an action against an ice company for injuries alleged to have been caused by negligence in the operation of its wagon, where the defense is that the possession and management of the wagon were not in defendant hut in a third person, and it appears that defendant allowed such third person’s ice business to he conducted in its name as aforesaid, advertising his office as its office, furnishing for use in his retail business stationery and bills bearing its own name, permitting collections from his customers to be made in its name and the wagons to hear its name and the driver to act as its servant to such an extent that he even believed he was, and knowing and permitting all this for the benefits that would accrue to it from such advertising, the jury were justified in finding that the driver was its servant, and that it cannot escape liability for his conceded negligence.
    Babnes, J., dissenting.
    Appeal from the Circuit Court of Cook county; the Hon. H. Steeling Pomeboy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 15, 1918.
    Rehearing denied October 25, 1918.
    Miller, Gorham & Wales, for appellant.
    Richard J. Finn and Max N. Block, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Matchett

delivered the opinion of the court.

The plaintiff below, who is appellee here, obtained a judgment on the verdict of a jury in an action on the case for personal injuries sustained by him while a passenger upon a street car which collided with an ice wagon. The declaration alleged negligence of the defendant in the management and control of the wagon and the team drawing the same. Appellant filed a special plea denying that it possessed or controlled the team or wagon at the time in question. The issues raised by this plea are the only matters argued here.

Appellant contends the court should have directed a verdict for it, and, if not, that the verdict rendered was against the weight of the evidence.

Appellant was incorporated in Illinois on the 11th day of January, 1905. Its object as stated was “to cut, store, buy, sell and deal in ice at wholesale and retail,” and its principal office was in Chicago. The subscribers to its capital stock and directors were William, Herman E., Henry and Ferdinand Getting, who were brothers, and Fred W. Miller. The stockholders were Henry Getting, Herman Getting, Charley Getting, Charley Miller and Mrs. Miller. The Millers were relatives of the Gettings. William Getting was elected the president of the corporation and his brother, Herman, its secretary. At the time of the incorporation, and prior thereto, these stockholders were in the retail ice business in Chicago, operating on their respective individual accounts and from different offices, but they sometimes used on their wagons the name “Getting Bros.” and at other times “Getting Bros. Ice Company.” The Chicago office of the appellant corporation was located at 1725 West 15th street in Chicago. This property was then, and ever since has been, owned by William Getting. The title is in his name, the purchase price was paid by him, and he has at all times personally paid the taxes levied upon it. With funds from his personal bank account he purchased and paid for the wagon and horses which were involved in the accident, and from the same account he paid the wages of George Girodae and Charles Peterson, who were in charge of the team and wagon at the time of the accident. William Getting testifies the wagon was owned by him personally, and that the driver and his helper were working for him personally and not for the corporation.

The company owned two ice houses, one at Camp Lake, Wisconsin, and another at Channel Lake, Illinois, in which places its ice was manufactured. The ice used in the retail business transacted by each of the Gettings as aforesaid was paid for by their individual checks. The office of the appellant corporation was also the personal office of William Getting.

There was painted on the wagon in use at the time of the accident the words “Getting Bros. Ice Company, Channel & Camp Lakes.” This wagon was kept with other similar wagons at the office of the corporation which bore in large letters across the front of it a sign, “Getting Bros. Icé Company,” and just above the door the word “Office.” These were the only signs of ownership appearing on the building.

The stationery used at the place of business was paid for by the corporation and it furnished the stationery for the retail establishments. All this stationery was in the name of the corporation, Getting Bros. Ice Company. The sale slips used by the men driving the wagon were in the name of the corporation and the bills rendered to the customers were made out in the same way, “Oetting Bros. Ice Company, Main Office, 1725 West 15th Street." The name of William Getting did not appear on the stationery or wagons. There was not anything about the place to indicate that William Getting personally owned or controlled the business. Checks in payment of ice delivered at retail were sometimes made out to the order of William Getting—sometimes to the order of the corporation. These checks were always either turned over to William. Getting or credited to him. The ice delivered just prior to the accident was billed in the name of the corporation, and payment for it was made by a check drawn to the order of the corporation.

The customers testified, presumably as a conclusion from the course of dealing, that they were dealing with Getting Bros. Ice Company, a corporation. Even the driver, though he testified that he was working for William Getting, evidently supposed at the time of the accident that he was working for Getting Bros. Ice Company, for it was proved that he so stated at the time of the accident, and made an affidavit to that effect later.

William Getting had a desk in the office at 1725 West 15th street and conducted his personal business there. He was assisted by one M. J. Nolan, who in winter worked for him personally, and in summer for the corporation. Nolan was paid by the corporation, but in fact worked also for William Getting and kept books and took telephone messages for both.

Appellant contends that the burden of establishing the fact of possession and control was upon the plaintiff; that the inferences or presumptions arising from the use of the name on the wagon do not shift that burden, and that the presumption disappears when met, as here, by substantial evidence to the contrary. Graves v. Colwell, 90 Ill. 612; Potts v. Pardee, 220 N. Y. 431. Further, that the presumption of possession and control cannot stand in the face of undiscredited testimony that the team and wagon were actually in the possession and control of a third party. Foster v. Wadsworth-Howland Co., 168 Ill. 514. If proof of possession and control rested alone upon the presumption arising from the fact that the name of the corporation was on the wagon, the rule announced would be controlling, but it does not rest upon any one presumption arising from any one particular fact. On the contrary, it rests upon presumptions arising from many proved facts and from a state of facts which existed for years and shows a usual course of business amounting to a representation on the part of the corporation that it was in possession and control.

The question here, we think, was for the jury, and we are not disposed to set aside the verdict. It was said in Denver & R. G. R. Co. v. Gustafson, 21 Colo. 393, that: “When one knowingly and without objection receives the benefits of labor, or holds out to the public one as engaged in his service, he is liable, as a master, for the negligence of such servant, when the act or failure constituting the negligence comes within the apparent scope of the servant’s empíoyment, even though the person for whom such service is rendered has not employed or paid the servant.” (See also Cooley on Torts, 3rd Ed., vol. 2, p. 1008.)

In view of the fact that defendant allowed the ice business of William Getting to be conducted in its name as aforesaid, advertising Ms office as its office, furnishing for use in Ms retail business stationery and bills bearing its own name, permitting collections from his customers to be made in its name and the wagons to bear its name and the driver to act as its servant to such an extent that he even believed he was, and knowing and permitting all this for the benefits that would accrue to it' from such advertising, we think the jury were justified in finding that the driver was its servant, in the legal sense in which that term is employed, and that it cannot escape liability for his conceded negligence. Cooley on Torts (3rd Ed.), vol. 2, p. 1006; North American Restaurant & Oyster House v. McElligott, 227 Ill. 317; Heywood v. Ogasapian, 224 Mass. 203.

Affirmed.

Mr. Justice Barnes

dissenting.

I cannot agree with this conclusion because, as appears from the opinion, the negligence was conceded, and the ultimate fact left for determination was whether the driver of the wagon was defendant’s servant or under its direction or control. The evidence, however, was undisputed that said driver was actually the servant of William Getting, engaged in his business alone and not in any business for defendant, and was in nowise under its direction or control. The language cited in the opinion and quoted by Cooley from the Colorado case, supra, applied to a state of facts where the negligence charged was that of one in the course of rendering services for the defendant with its knowledge and consent. The logic of the above opinion is not to decide the case on the theory that the jury found a necessary ultimate fact from contradictory evidence, but upon a principle of law that is not applicable to the undisputed facts.


source: Caselaw Access Project

author: Mr. Presiding Justice O’Connor

license: Public Domain

text:
    David M. Rubin et al., Appellants, v. Erik P. Strandberg, Jr., et al., Appellees.
    Gen. No. 23,800.
    1. Infants, § 23

      —u>hat contract hy minor may he ratified after reaching maturity. A contract by a minor for the purchase of realty is voidable and not void, and he may ratify it by his acts and conduct after becoming of age.
    2. Infants, § 23

      —what constitutes ratification of contract for purchase of realty upon reaching maturity. One who, after becoming of age, makes two monthly payments on account of the purchase price of realty under a contract entered into by him in infancy, records the contract, asks for an extension of time to make payments, and requests the vendor to obtain a cash purchaser for the property, will be held to have ratified or affirmed the contract.
    3. Evidence, § 32

      —what is matter of law presumed to he known. The right to disaffirm a contract made in infancy is a matter of law of which all men are conclusively presumed to have knowledge.
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Reversed and remanded with directions.
    Opinion filed October 16, 1918.
    H. J. Rosenberg and Louis Becker, for appellants; Irving Zimmerman, of counsel.
    Joel O. Carlson, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal complainants seek to reverse a decree of the Superior Court of Cook county, which removed a cloud from the title of real estate and further provided that complainants should refund to the defendant, Erik P. Strandberg, Jr., $2,575, being the amount of principal theretofore paid by the defendant to the complainants on the purchase price of the property.

The record discloses that on the 4th of March, 1915, complainants entered into a written contract with the defendant, Erik P. Strandberg, Jr., whereby complainants agreed to sell three lots to the defendant upon a cash payment being made, and the balance in monthly instalments, with interest thereon at 6 per cent; that default was made in payment of the January and February instalments; that the defendant recorded the contract on the 3rd of January, 1916; that in accordance with the terms of the contract complainants elected to terminate the contract and prayed that they be permitted to retain the several amounts paid as liquidated damages; or in the alternative that the defendant be permitted to relieve himself from the forfeiture upon equitable terms, and that the recording of the contract be removed as a cloud upon complainants’ title. The defendant filed an answer and cross-bill, in which he admitted the facts substantially as contended for by complainants, except that he charged fraud on the part of the complainants in their representation as to the value of the property, and set up as a defense that at the time of the execution of the contract he was a minor under the age of 21 years; that he became 21 years of age on October 7, 1915; that he did not know he had the legal right to affirm or dis-affirm the contract after he became of age, and that he first learned his right in this regard on the 1st of February, 1916, when he consulted his solicitor; that immediately upon being so informed he tendered back his copy of the contract, together with a quitclaim deed to the property and demanded the return of the payments made by him with interest, which was refused. The prayer of the cross-bill was that the contract be canceled and that complainants return to him the payments he had made, with interest thereon. The court found that the charge of fraud made by the defendant was hot sustained by the evidence, but that as the defendant was not advised of his right under the law to disaffirm the contract, the payments made by defendant after he became of age and the filing of the contract for record did not constitute an affirmance, and decreed that complainants return to the defendant the payments made, without interest.

The question presented for our decision, therefore, is whether it is necessary to a ratification of a minor’s contract after he is of full age that he know his legal right to disaffirm the contract. It seems to be conceded that the contract executed by the minor in the instant case is voidable and not void. Such a contract may be ratified by acts and conduct on the part of the minor after arriving at full age. Davidson v. Young, 38 Ill. 145.

After the defendant became 21 years of age, he made two monthly payments on account of the purchase price, recorded the contract, asked for an extension of time to make payments, and requested complainants to obtain a cash purchaser for the property. These acts, we think, amount to a ratification or affirmance of the contract, unless it can be said that the lack of knowledge by the defendant of his legal right to disaffirm rendered the defendant’s acts ineffective for that purpose.

The defendant contends that such legal knowledge is necessary to render the contract enforceable, and in support of this cites Coe v. Moon, 260 Ill. 76; Sayles v. Christie, 187 Ill. 420; McCarty v. Carter, 49 Ill. 53; Davidson v. Young, supra, and a number of cases from other jurisdictions^ as well as text-writers. An examination of the Coe case, supra, discloses that the question now under consideration was not considered, but that what the court had in mind was that the minor in that case had been deceived as to the facts in the case. This is clearly apparent, for the court there cites the case of Davidson v. Young, supra, as authority. In the latter ease the court said that to constitute a ratification of the acts done in infancy, the act relied upon must be performed with a full knowledge of its consequences and with an express intention to ratify what is known to be voidable. The court there held that there was no ratification, but said that if the minor had known the facts in the case a very different question would have been presented. In the Sayles case, supra, a deed from the daughter to the mother was held to have been fraudulently obtained. In the McCarty case, supra, the question under consideration was in no way referred to. It is clear, therefore, that in none of these cases was the question now under consideration passed upon by our Supreme Court. And while there are some authorities from other jurisdictions which hold that to ratify such a contract the former minor must be cognizant of his legal rights, yet we think that the weight of authority and the better considered opinions all hold that the right to disaffirm a contract made in infancy is a matter of law of which all men are conclusively presumed to have knowledge. 22 Cyc. 603; Hammon on Contracts, sec. 172; 1 Wharton on Contracts, sec. 57; Morse v. Wheeler, 86 Mass. [4 Allen] 570; American Mortg. Co. of Scotland v. Wright, 101 Ala. 658; Bestor v. Hickey, 71 Conn. 181; Anderson v. Soward, 40 Ohio St. 325.

In 22 Cyc. 603, in discussing this question, it is said: “The better considered rule appears to be that as the late infant must be presumed to know his legal rights, it is not necessary to a ratification of his contract made, during infancy that the act or promise relied on should have been done or made with actual knowledge that he was not bound; but there are many cases asserting the contrary, although these assertions are mostly in the form of dicta.” And in Hammon on Contracts, supra, the author says: “As to whether a man must have actual knowledge of his legal right to avoid a contract made in infancy in order to bind himself by ratification, the cases are in conflict. One line of cases holds that there can be no ratification without intelligent action as to the law as well as to the facts, and, accordingly, that, if a man does not know that he has a right to disaffirm a contract made in infancy, no act done with reference to that contract may charge him as by ratification. By the better-reasoned opinions, however, the contrary view is taken. The right to disaffirm a contract made in infancy is, they hold, a matter of law, of which all men are conclusively presumed to have knowledge. A man’s ignorance of the law in this respect may not, therefore, be proved; and, accordingly, by promising, either expressly or impliedly, to perform a contract entered into while a minor, a man ratifies the contract, and makes it binding upon him in spite of the fact that, in truth, he does not know that the contract is voidable.”

In Wharton on Contracts, supra, it is said: ‘‘Supposing there be no fraud on the part of the other contracting party, it is not necessary to the validity of an affirmance that the person making it should be aware of its legal effects. He may have as little knowledge of these effects the day after as he had the day before he comes of age. But the line drawn by the law is necessarily arbitrary; and, as soon as he becomes of age, a knowledge of the legal character of his acts is imputed to him. It is true that there have been intimations that a ratification will not be recognized by the courts unless made with a knowledge of the consequences. If by this is meant that loose talk by a person just coming of age, or concessions induced by misstatements or suppressions of the other side, will not be regarded as ratification, the conclusion may be accepted as true. But to say that a knowledge of the legal consequences of a ratification is necessary to validate a ratification, not only interposes a condition it would be difficult to establish, and which would often be made dependent upon the testimony of the party himself long afterwards when his views may have changed, but would invalidate all ratifications, since there is no ratification all of whose legal consequences can be foreseen. Hence the better opinion is that a ratification, made by a person of sound mind, on arriving at his majority, will be held valid, if untainted with fraud or undue influence, though the party making it was not at the time aware that it bound him in law. ’ ’

In the Morse case, supra, the Supreme Court of Massachusetts was called upon to pass on the question for the first time. There the question is intelligently discussed and the authorities analyzed. Mr. Justice Metcalf, in delivering the opinion of the court, said: ‘ ‘ This case brings before the court, for the first time, the question whether it is necessary to the ratification of an infant’s promise, after he is of full age, that he should know, when he makes the new promise, that he is not legally liable on the other. It is said in numerous books that such knowledge is necessary to such ratification. But we are all of opinion that it is not necessary, either on principle or authority.” To the same effect are the holdings of the Supreme Courts of Alabama, Connecticut and Ohio, in the other authorities cited.

We are of the opinion that in the instant case, the testimony of the defendant that he did not know his legal rights after he became 21 years of age was inadmissible, as he was conclusively presumed to know the law.

Complainants also contend that the money which was paid to them on the purchase price belonged to the defendant’s father, and therefore cannot be recovered by, the defendant. We have examined carefully the evidence in, this regard, and are entirely satisfied with the conclusions of the chancellor that the money paid was the property of the defendant. We are also in accord .with the finding of the chancellor that the charges of fraud claimed by defendant in procuring the execution of the contract were not sustained by the evidence.

It follows from what we have said that the decree of the Superior Court of Cook county must be reversed and the cause remanded with directions to dismiss the cross-bill, and to grant such relief under the original bill as shall be equitable under the circumstances; and for this purpose the chancellor may hear such other testimony as he shall determine.

The decree of the Superior Court is reversed and the cause remanded.

Reversed and remanded with directions.


text:
    James F. Bishop, Administrator, Appellee, v. Chicago Junction Railway Company, Appellant.
    Gen. No. 23,832.
    Commerce, § 4

      —when switching crew not engaged in interstate commerce. Where a switching crew after delivering a cut of cars, concededly a task involving interstate commerce, returned to the yardmaster’s quarters for the purpose of obtaining orders for future work, the crew while awaiting such orders was not engaged in interstate commerce, and an injury then sustained by one of the crew was governed by the Workmen’s Compensation Act and not by the Federal Employers’ Liability Act.
    Appeal from the Circuit Court of Cook county; the Hon. Oscar M. Torrison, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 16, 1918.
    Rehearing denied October 28, 1918.
    • Winston, Payne, Strawn & Shaw, for appellant; John D. Black and A. Liddon Shepherd, of counsel.
    James O. MoShane, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal the defendant seeks to reverse a judgment of the Circuit Court of Cook county awarding plaintiff compensation under the Workmen’s Compensation Act of 1911 (J. & A. 5449 et seq.). The record discloses that Edward J. Flannery, plaintiff’s intestate, was a switchman employed by the defendant, and while in such employ was killed by being run over by one of defendant’s locomotives.

It is conceded that the sole question in this case is whether the deceased at the time of the accident was employed in interstate or intrastate commerce. If the former, the judgment must be reversed, as in that case the Federal Employers’ Liability Act would govern; and if the latter, the judgment should be affirmed, as the State Workmen’s Compensation Act would apply. There is no dispute as to the facts in the case.

It appears that the deceased at the time of the accident was a member of a switching crew employed by the defendant. The crew consisted of the engineer, fireman, conductor, head and rear switchman, the deceased being the rear switchman of the crew. Practically all the duties of this crew were performed in defendant’s switching yards. The yards were about one mile in extent and were located between Ashland and Western avenues, and north of Forty-Third street in Chicago. The crew commenced working at 7 o ’clock p. m. and worked until 7 o’clock the following morning. On the night of the accident they went to work as usual at 7 o’clock. The conductor at that time gave orders for the work the crew was to do, which he received from the yardmaster. There were about five main tracks and about thirty-six other tracks in the yards. The crew proceeded with their work and were engaged in switching cars for Swift & Company until about midnight. They then went to the roundhouse, which was located in the yards, got supplies for the engine, ate their supper, and some time after one o’clock in the morning, having before that time received orders from the yardmaster, proceeded to take a cut of cars which were located in the yards to the Illinois Northern Bail-road, a distance of more than 2 miles, and which was outside of and beyond the switching yards. After delivering these oars they started to return to the yards, and when they had reached a point a short distance east of Western avenue, the engine was stopped and the conductor went to a shanty located there, for the purpose of telephoning the yardmaster, who was located near Ashland avenue towards the east end of the yards, for the purpose of obtaining orders as to what work they would be next required to do. The conductor was not successful in reaching the yardmaster by telephone. He then returned to the engine and ordered the crew to proceed to the yardmaster’s house so that he might there get orders for further work. The yardmaster’s house was about three-quarters of a mile east of the shanty. When the engine came opposite the yardmaster’s house, the conductor told the crew he would go into the house and get orders from the yardmaster, and ordered the engineer and the rest of the crew to proceed a short distance east and switch back on lead track No. 6 and wait there for him. The conductor then left the engine and started towards the yardmaster’s house; the engine proceeded east and, after it had gone about 100 feet, the deceased said he would take his lanterns-from the engine, as it was then daylight and they would be of no further use. As he was alighting from the engine he was run over and injured, as a result of which he died.

It is conceded that the crew in delivering the cut of cars to the Hlinois Northern Bailroad were engaged in interstate commerce, and it is contended by the defendant that the deceased was still so engaged at the time of the accident, for the reason that the return trip of the engine after delivering the cars to the Illinois Northern was a part of the same task, which would not be completed until the engine had switched back on lead track No. 6. On the other side it is contended that the interstate task was completed when the engine had returned to the shanty where the conductor endeavored to telephone the yardmaster for further orders, or at most that it was completed when the engine and crew had proceeded from the shanty eastward to the yardmaster’s house, a distance of a half or three-quarters of a mile, and where the conductor left the engine to secure further orders from the yardmaster.

We think it clear that anything done by the crew after it had returned to the shanty at the west end of the yards was not in completion of the interstate task, but was for the sole purpose of obtaining orders from the yardmaster as to the next task to be performed. We are therefore of the opinion that the trial court was not in error in holding that the deceased at the time of the accident was not engaged in interstate commerce. Erie R. Co. v. Welsh, 242 U. S. 303; Chicago, R. I. & P. Ry. Co. v. Industrial Board, 273 Ill. 529.

The judgment of the Circuit Court of Cook county is affirmed.

Affirmed.


author: Mr. Presiding Justice O’Connor Mr. Justice Thomson

text:
    The People of the State of Illinois ex rel. Samuel P. Thrasher, Appellant, v. Jacob M. Eisenberg, Appellee.
    Gen. No. 23,887.
    1. Injunction, § 287

      —when defendant entitled to have damages assessed upon dissolution of preliminary. Under Injunction Act, sec. 12 (J. & A. ¶ 6172), where an order awarding a preliminary injunction was reversed for failure to give notice of the time and place of application therefor, upon dissolution of the injunction, defendant is entitled to have his damages assessed notwithstanding the fact that the bill stated a good cause of action.
    2. Injunction, § 326

      —when assessment of damages upon dissolution of preliminary is not premature. Conceding that the assessment of damages upon the dissolution of a preliminary injunction in advance of the hearing on the merits is premature where an injunction is the sole relief sought, the rule has no application where in addition to the prayer for an injunction the bill seeks the removal of fixtures of an alleged house of prostitution and other relief under Laws 1915, p. 371 [Callaghan’s 1916 St. Supp. ¶ 3591(2) et seq.], providing for the suppression of public nuisances.
    3. Injunction, § 375

      —how question of premature awarding of damages upon dissolution of preliminary must he preserved for review. To preserve for review the exercise of the chancellor’s discretion in awarding damages upon the dissolution of a preliminary injunction in advance of the hearing upon the merits, complainant must move the court to postpone the award of damages until after the evidence has been heard in the case in chief.
    Thomson, J., dissenting.
    Appeal from the Circuit Court of Cook county; the Hon.'Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed October 16, 1918.
    Sims, Welch & Godman, for" appellant; Edwin W. Sims, Albert G. Welch and Elwood G. Godman, of counsel.
    Brady, Rutledge & Devaney, for appellee; James A. Brady, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

This appeal is prosecuted to reverse a decree of the Circuit Court of Cook county, awarding damages of $500 upon the dissolution of a temporary injunction. The order awarding the writ of injunction was reversed by this court. (People v. Eisenberg, 202 Ill. App. 63.) The dissolution of the temporary injunction and the assessment of damages followed.

The record discloses that the damages were awarded to the defendant for fees which he paid to his solicitors for services rendered in procuring the dissolution of the temporary injunction, and no point is made that the fees were not paid for such services nor that they are excessive.

Complainant insists that as the order awarding the writ of injunction was reversed on the sole ground that notice of the time and place of the application therefor was not given to the defendant—being a mere irregularity—the injunction writ was not wrongfully issued within the meaning of section 12 of the Injunction Act (J. & A. ¶ 6172), and the assessment of damages was improper; that where a temporary writ of injunction is awarded on the allegations of a bill which states a good cause of action and the injunction is afterwards dissolved for failure to give notice of the application, damages should not be awarded. No authorities are cited to sustain this contention, and we have been unable to find any. Section 12, which is the basis for the assessment of damages, provides that in all cases where an injunction is dissolved “the court, after dissolving such injunction, and before finally disposing of the suit, upon the party claiming damages by reason of such injunction suggesting, in writing, the nature and amount thereof, shall hear evidence and assess such damages as the nature of the case may require, and to equity appertain.” From this it is plain that “in all cases” upon a dissolution of an injunction the court is authorized to award damages, and this too before finally disposing of the suit. Manifestly the statute does not limit the assessment of damages to cases where a good cause of action is alleged in the bill of complaint.

It is further contended that the assessment of damages was wrong for the reason that the bill in the instant case prays for an injunction only, and that in such case, upon dissolution of a preliminary injunction in advance of determining whether the relief shall ultimately be granted, the assessment of damages is premature and unauthorized, and in support of this the cases of Terry v. Hamilton Primary School, 72 Ill. 476; Bolander v. Childs, 163 Ill. App. 57; Dempster v. Lansingh, 234 Ill. 381, and others are cited. If it be conceded that the proposition advanced by complainant is correct, yet we are of the opinion that it is not applicable here, for the reason that the bill seeks aid in addition to the granting of a writ of injunction. The prayer is that the defendants be perpetually enjoined and restrained from maintaining or permitting the premises described in the bill to be used for the purpose of lewdness, assignation or prostitution, and from using the premises for any purpose for a period of one year; and the further prayer is that the building and appurtenances be placed in the custody of the court, and for an order directing the sheriff to remove from the premises the fixtures and movable property and to sell the same in accordance with the provisions of an act for the suppression of public nuisances. (Laws of 1915, p. 371 [Callaghan’s 1916 St. Supp. ¶ 3591(2) et seq.].)

It might have been advisable for the chancellor to have postponed the hearing on the question of damages until the merits of the case had been heard, for he might then have been in a much better position to determine what damages, if any, should equitably be awarded, and it is only such equitable damages that are authorized by section 12. That section provides that the chancellor “shall hear evidence and assess such damages as the nature of the case may require, and to equity appertain.” Considering the particular facts in the instant case, the nature of the injunction, the reason for the reversal of the order awarding the writ, it is manifest that the chancellor might have been in a better position to assess such damages as the nature of the case might require and to equity appertain, after he had heard the evidence and before final disposition. For if it appeared on the hearing that the defendant’s property was being used for purposes of lewdness, assignation or prostitution in violation of the law, we think the chancellor would have been warranted in refusing damages. On the other hand, if the evidence disclosed that the property was being used for legitimate purposes, damage's should be awarded. In the Dempster case, supra, it was contended that it was improper for the court to hear suggestions of damages until it was determined whether the relief sought should be granted, and in that case, where the prayer for relief asked for more than a perpetual injunction, the court said, after quoting section 12: “By the above provision the power of the court to award such damages is beyond question, and the time for hearing such question is entirely within the discretion of the chancellor, with the express limitation that it must be ‘after dissolving such injunction and before finally disposing of the suit. ’ The court committed no error in hearing suggestions of damages in this case.” In the instant case, the court had the power to assess the damages without waiting for the final hearing of the case on its merits. It was within the discretion of the- court to hear the damages upon the dissolution of the injunction, or at a later time, and if the complainant desired that the matter be heard after the evidence had been introduced in the case in chief, he should have moved the court for that purpose, and if the motion was denied, the action of .the court in exercising its discretion in this regard would he subject to review. But no such suggestion was made to the chancellor, and of course the question of the abuse of discretion is in no way involved. The court having had the power to hear the question of damages when it did, and the complainant not having requested that the matter be postponed, he cannot now be heard to complain.

The decree of the Circuit Court of Cook county is affirmed.

Affirmed.

Mr. Justice Thomson

dissenting.

I am unable to concur in the majority opinion in this case. Section 12 of the Injunction Act (J. & A. 6172), under the provisions of which the trial court assessed damages, has frequently been before our courts and they have repeatedly interpreted it to mean that damages might be assessed, upon suggestion of the complaining party, whenever there had been a dissolution of an injunction, which had been wrongfully sued out by the other party to the litigation. Beauchamp v. Board Sup’rs Kankakee County, 45 Ill. 274; Kohlsaat v. Crate, 144 Ill. 14.

If one sues out a writ of injunction but fails to comply with the preliminary requirements of the statute, such as filing a proper and adequate bond or giving the required notice, necessitating the allowance of a motion to dissolve, it does not necessarily follow that the writ has been wrongfully sued out, within the meaning of that phrase as interpreted in the foregoing cases, and as applied to section 12.

The object of assessing damages is to compensate the party enjoined for the injury he has wrongfully suffered. One cannot be said to have wrongfully suffered a legal injury where he has incurred an indebtedness for counsel fees, for services in procuring the dissolution of an injunction on the ground of a failure of the complainant to give him the notice prescribed by the statute, of the time and place of the application for the injunction, in the absence of some showing to the effect that such notice would have enabled him to demonstrate to the court that the application should be denied.

Except for a slight technical defect which was later cured by amending 'the bill on its face, the bill of complaint made out a case for the relief sought. The temporary injunction granted was set aside on appeal to this court, solely because the complainant had omitted to give the defendant notice of the time and place of his application therefor, as required by section 3 of the Injunction Act (J. & A. ¶ 6163). After the injunction issued in this case had been dissolved the defendant had a right to file his suggestion of damages, and under the provisions of section 12 the court had the power to determine the matter of damages at any time after the dissolution of the injunction and before the final disposition of the case. But under the provisions of said section, the court should award only “such damages as the nature of the case may require, and to equity appertain.”

For all that appears from the showing made by the defendant in support of his suggestion of damages, the allegations of the bill are true and he dpes permit the use of his premises for the purpose of prostitution, and if he had received the notice he could not have prevented the issuing of the restraining order. In the absence of some showing to the contrary, I believe it should be held by the court on a hearing on suggestion of damages, that ‘ such damages as the nature of the case may require and to equity appertain,” amount to nothing. In awarding the defendant his damages, on the showing he made, “the substance of this case has been sacrificed to form.” Beauchamp v. Board Sup’rs Kankakee County, supra.

No doubt the court had the power to take up this matter when it did and determine it without awaiting the final outcome of the proceeding on its merits. It is true the complainant might have moved the court to postpone the hearing on the suggestion of damages, until the case had been heard on its merits, when it might have been shown that in fact the defendant had not been damaged, and if such a motion had been made and overruled, it may be that the possible question of abuse of discretion by the court might have been preserved for our review. But that is beside the question. Whenever the court heard the matter, no (Jam-ages should have been awarded in the absence of a proper showing.

It is the general policy of the law not to require the defeated party to pay the other his counsel fees. Cases coming within the purview of section 12 form an exception to that rule. Those provisions should not be extended beyond the interpretation our Supreme Court has given them.

For the reasons I have stated, I am of the opinion that the defendant failed to show any legal damage such as is contemplated by the provisions of section 12.


author: Mr. Justice Taylor

text:
    Simon J. Campbell, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 23,730.
    1. Roads and bridges, § 231

      —when drivers approaching intersection may not each assume other will give way to avoid collision. Where two persons are driving on lines that visibly intersect, the general obligation of ordinary care becomes for each a definite duty, and if, as they approach, their contiguity and mutual movements suggest a probable or even possible collision, neither is entitled to act on the assumption that the other will give way.
    2. Street railroads, § 131

      —when evidence does not support verdict for plaintiff for injury due to collision of street car loith vehicle. Where the weight of the evidence shows that plaintiff, while driving a vehicle in a southerly direction upon a street, suddenly swerved his horse to the east directly in the path of an approaching northbound street car, which was then so close that the head of the horse came in contact with the car, a verdict for plaintiff will be set aside.
    Appeal from the Superior Court of Cook county; the Hon. Joseph Sabath, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Reversed with finding of fact.
    Opinion filed October 16, 1918.
    Rehearing denied November 19, 1918.
    John E. Kehoe and Charles Le Roy Brown, for appellant; John R. G-uilliams, of counsel.
    John A. Bloomingston, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Taylor

delivered the opinion of the court.

The plaintiff having obtained in a personal injury suit a judgment for $17,000, the defendant by this appeal seeks a reversal. The plaintiff, a teamster, drove a horse and wagon south on Halsted street and at the Congress street intersection turned east and while crossing the northbound track was struck by a car coming from the south.

The plaintiff, who was 40 years old, had been a teamster since 1900, and was employed by the Leverentz Teaming Company, whose bam was south and east of the place where the accident occurred. The wagon was drawn by a dark bay, a good-sized, able, young, obedient horse. The vehicle was a light, single, uncovered, box wagon, about 10 feet long, the sides being from 16 to 18 inches high. The plaintiff about 2 p. m., on September 20, 1913, took a load of kindling to 2121 Armitage avenue and about 5 p. m. started back with the horse and empty wagon. He drove south on Curtis street to Madison street, on Madison to Aberdeen, south on Aberdeen to West Congress, then into Halsted street. At that time, nearly half-past 6 p. m., it was misting. It was still daylight and he had no light on his wagon. He drove south on Halsted street with (as he says) one wheel in the southbound street car track and the other to the west of the tracks. Having driven south on Halsted street, his horse going at a walk—one witness says it was a trot—about 200 feet, he turned east at about the point of central intersection. Congress street does not run through to the west at that point, but does at a point 100 to 200 feet to the north. When he arrived opposite the center of Congress he turned east to drive across the tracks. The horse or wagon, of both, were then struck by a street car coming from the south and the plaintiff was thrown out and severely injured.

It is the theory of the plaintiff that when he started, with his horse at a walk, to turn east from Halsted street into Congress street there was a street car coming on at a high rate of speed; that at the time when his horse had just gotten over the east track, the street car struck the side of his wagon and knocked him off; that from the distance the street car was away when he first saw it (he says 125 feet) he had a right to assume that he could cross in safety; that the defendant ran its car negligently and that he, himself, was not guilty of contributory negligence. It is the theory of the defendant; (1) that the conduct of the plaintiff, as testified to by himself, was, as a matter of law, negligence per se; (2) that the horse suddenly swerved—owing to the negligence of the plaintiff —and was struck by the car and that the verdict is, therefore, clearly against the weight of the evidence.

The undisputed evidence shows that the plaintiff drove a horse and empty wagon south on the west side of Halsted street for a distance somewhere between 100 and 200 feet to the intersection of east Congress street. Just what part of Halsted street it traveled on is in dispute. The plaintiff claimed that the east wheels of the wagon were tracking in the west rail of the southbound tracks and the defendant’s witnesses claimed that all the wheels of the wagon were tracking. It is also practically undisputed that when the horse was at a point about opposite the middle of Congress street and was walking, it turned eastward to go across the east or northbound track and that the horse or wagon, or both, were struck by a street car which was going north. Also, that at the time the plaintiff was turning to the east, he saw the car coming from the south, and that there was no obstruction between him and the car.

The evidence, however, is conflicting as to (1) the distance the car was away, i. e., south, when the horse started to turn eastward;. (2) the exact position or place of the horse in the street in regard to the east tracks, when the collision took place; (3) the speed of the car from the time the plaintiff first saw it until it struck the horse or wagon; (4.) the position of the driver at the time of and just prior to the collision; (5) the distance the car ran after the collision; (6) the position of the plaintiff and the horse and wagon just after the accident.

1. As to the distance the ear was away: The evidence of the plaintiff is that his horse was just turning into the southbound track when he first saw the car and that the car was then about 125 feet away. On direct examination he said, probably a little more than 125 feet; and on cross-examination he put it twice as 125 feet without qualification. The evidence of the plaintiff’s witness Sal Giunta, a teamster, who testified he stood at the time at the southeast corner of Congress and Halsted streets, is somewhat difficult to interpret. On direct examination he said that the car, at the time the wagon started to turn east, was 75 feet away from the comer, evidently meaning, to the south; in one answer, that the car was only from 50 to 75 feet away, and in another, that it was 50 or 75 feet south, in front of a drug store, which latter he had already fixed as the sixth building south of the southeast comer of Congress and Halsted streets. In a written statement, dated October 16, 1913, and which was signed by him, were the words: “A northbound Halsted street car was about 20 feet south of this wagon as it pulled onto the track # He tried to stop his car but the distance was too short,” etc.

The evidence of the plaintiff’s witness Nick Onesto, a foreman for Great Lakes, who saw the accident from the northeast corner of Congress and Halsted streets, is, on direct examination, that the first time he saw the wagon it was headed east; that he saw the car from about 50 feet south of the crossing to the time of the accident. On cross-examination he said he saw the car when it was about 50 feet south of the south side- of the street. His testimony as to the exact place of the horse and wagon, when he saw the car 50 feet south of the street comer, is somewhat unintelligible; although, as he stated that when he first saw the wagon it was on the southbound track “headed east” and when he first noticed the car it was 50 feet south of the street comer, it may be reasonably inferred that at the time the plaintiff was turning the horse to the east the car, in his opinion, was 50 feet south of the corner.

The evidence of Neuroth, a police officer, who, at the time in question, was standing back and a little to the right of the motorman, in the front end of the northbound street car, is that he was looking out of the glass in the right-hand door at some people at the street comer and turned around just in time to catch a glimpse of the shadow of the wagon at the time it was struck, that he had not seen the wagon before.

The defendant called four witnesses, Anthony Capouch, who was employed by the Commonwealth Edison Company; Alex Knaus, a brewer; Boris Bight-man, in the grocery and cigar business; and Edward Began, the motorman, of 12 years’ experience; all of whom were on the front platform of the car at the time of the accident, and all of whom testified that the horse, when from 5 to 10 feet from the ear, swerved or turned towards the east, and with its head struck and broke the window on the northwest side—though Capouch says it was the middle window—of the front vestibule of the car. Capouch stated that when the motorman saw the horse swerve he shouted “Jesus Christ” and started putting on the brakes.

2. As to the exact position of the horse in the street when the collision took place: As seen above, the evidence of the four witnesses for the defendant is that the horse suddenly turned east and was struck about the head. On the other hand, the plaintiff’s and Griunta’s evidence is that the horse was clear of the northbound track and that the car struck the wagon. Griunta in his signed statement, however, said that as the wagon pulled onto the track the car was only about 20 feet south. Onesto testified that the wagon was struck and that the horse was clear of the track. Neuroth, who says he turned only just in time to catch a glimpse of the shadow of a wagon, testified that the wagon was hit by the car and knocked to one side.

3. As to the speed of the car from the time the plaintiff says he first saw it 125 feet away: The plaintiff used the expression “coming so fast,” that it came right along, “terrific speed.” G-iunta, “that it was going fast, going pretty fast; that he did not know if it changed its speed.” In his written statement he fixed the speed at 15 miles an hour. Onesto said it was going pretty fast and did not slacken its speed. Neuroth testified it was going fast, at a good rate of speed and that the speed was not changed. Griffin, a witness and investigator for the defendant, stated, however, that in a talk with Neuroth the latter said the car was going only at 6 miles an hour and that the motorman rang his gong. For the defendant, Capouch put the speed of the car at 7 to 8 miles an hour; Knaus at 5 or 6 miles an - hour; Bightman 5 or 6 miles, and Began, the motorman, at 6 miles an hour.

4. As to the position of the driver at and just prior to the time of the collision: The plaintiff stated that, at the time he was sitting upon the wagon seat, when the car was almost upon him—just about to strike him—he dropped the lines on the horse’s back, meaning that he used the lines as a whip to make the horse go faster; that that was the first time he had dropped the lines; that up to that time he had allowed the horse to go on in his regular walk. Giunta’s testimony is silent on that subject. Onesto’s evidence is that he did not see the plaintiff do anything, except sitting on the seat; that he did not know whether he was hurrying the horse up. Neuroth said nothing on the subject. Capouch said he did not observe the driver. Knaus did not testify on that subject. Bight-man’s evidence is that the driver was inside the wagon and was not on the seat and that he did not see whether the plaintiff had hold of the lines. Began’s, that the plaintiff was standing in the wagon back of the seat and did not have hold of the lines; that he was folding a wagon or blanket cover and laying it on the seat in front of him; that the lines were hanging down on the left-hand side, fastened to something on the side of the seat.

5. As to the distance the car ran after the collision: Giunta says, 2 car lengths; Onesto, 20 feet; Neuroth, 100 feet; Capouch, 25 to 30 feet; Knaus, that the rear of the car was 10 to 20 feet north of Congress street; Rightman, that it stopped right away, that it went 6 or 8 feet; Began, the motorman, 25 to 30 feet.

6. As to the position of the plaintiff, and that of the horse and wagon just after the collision: Giunta said that the wagon was knocked clear around, up against the curb on the west side of the street and that the plaintiff was picked up alongside of the car in between the tracks near the front wheels; that the horse got away and ran north. Onesto, that the wagon tipped over on the east side of Halsted street and was then at the northeast corner; that the plaintiff fell off the wagon on the east side of the car and was picked up when lying alongside the east side of the car. Neuroth, that the wagon after being struck was west of the car; that the plaintiff was lying near the front wheels west of the car. Capouch, that after the ear stopped, the plaintiff was lying between the north and south tracks, his head at about the north wheels of the south track; that the wagon was on the west side of the car and was facing north. Knaus did not get off the car, and did not testify on that subject. Rightman, that the street car hit the horse and the horse turned the wagon around on the tracks. Regan, that the wagon after the collision was between the tracks and the west side of the car and headed north; that the car struck the horse’s head and the horse swung the wagon around and the plaintiff fell headlong out of the wagon; that after the collision the wagon was between the car and the tracks, headed north. Practically all agreed that the horse broke loose and ran north.

From the foregoing analysis of the evidence two questions arise: (1) Was the plaintiff guilty of negligence per se, that is, as a matter of law? (2) Is the verdict clearly against the weight of the evidence? We shall proceed to consider both questions together:

When two men are driving on lines that visibly intersect, the general obligation of ordinary care becomes for each a definite duty, and if, as they approach, their contiguity and mutual movements suggest a probable or even a possible collision, neither is entitled to act on the assumption that the other will give way. Cronch v. Peoria, L. & S. Traction Co., 181 Ill. App. 74; Schlauder v. Chicago & S. Traction Co., 253 Ill. 154; Netterfield v. New York City R. Co., 129 N. Y. App. Div. 56, 113 N. Y. Supp. 434; McEniry v. Tri-City Ry. Co., 179 Ill. App. 152; Lee v. Chicago City Ry. Co., 127 Ill. App. 510.

None of the witnesses for the plaintiff, including the latter himself, places the car at the time the horse started to turn further away than 125 feet. Griunta and Onesto place it at less than 125 feet, and Neuroth practically corroborates the testimony of the defendant’s witnesses. Evidently the plaintiff knew at the time he turned, according to his own testimony, that the car was not only no more than 125 feet away, but that it was traveling at a terrific rate of speed. Griunta, Onesto and Neuroth all stated that it was going fast. At the time the plaintiff started to turn, he claims that the east wheels of the wagon were in the west rail of the west track so that it became necessary for him to drive east—including the arc of turning and in order to have the rear end of his wagon clear of the east track so far as to avoid a collision— at least 30 feet. The testimony of the plaintiff and Onesto, who were the only witnesses for the plaintiff who testified on that subject, is that the plaintiff at the time yas seated on the wagon seat. The plaintiff further stated that when the car was about to strike him he dropped the lines on the horse’s back, meaning by that that he used the lines as a whip to make the-horse, which was then walking, go faster, and np to that time he had allowed the horse to go at a walk and done nothing to accelerate his speed. After the collision, it is practically undisputed, the wagon was headed north and was west of the street car. That is contradicted by Onesto but, nevertheless, is sufficiently proven without his testimony. The plaintiff immediately after the collision was found lying west of the northbound car in between the north and southbound tracks, either near the front or the rear wheels of the car. Griunta and Neuroth say near the front wheels while Capouch says near the real wheels. The position of the wagon and the body of the plaintiff immediately after the collision is entirely consistent with the theory of the defendant that the street car struck the horse and not the wagon. The testimony of the plaintiff, supported only by the vacillating evidence of Griunta'and the testimony of Onesto, is certainly very feeble when compared with the overwhelming testimony of Capouch, Knaus, Rightman and Regan, who at the time were standing in the front vestibule of the car. The evidence of the latter witnesses, considered together with the practically admitted position of the wagon and the body of the plaintiff after the collision, seems, in probative force, completely to overcome the effect of the evidence for the plaintiff.

It is a nice question whether or not the plaintiff was guilty of negligence as a matter of law, undertaking as he did, under the circumstances, to cross the street in front of the oncoming car. It does not seem reasonable to conclude that an average prudent man under the circumstances would have undertaken to drive across. Of course, the motorman and the plaintiff both may have been careless, but that of the former does not condone that of the latter. McEniry v. Tri-City Ry. Co., supra. When the plaintiff saw the street car only 125 feet away and coining at a terrific speed and he knew, as he must have known, that he had at least 30 feet to go to get safely across, he was not justified in assuming that the motorman would be able to stop in time and would stop in time to allow him to cross safely. Considering the distance he had to go and that his horse was only walking and that he did nothing to accelerate its speed until the car—moving in his judgment at a terrific speed—was almost upon him, his conduct was at least rash and negligent. He may have thought that he very likely would get safely across and that to do so it might lie necessary for the motorman to exercise quick judgment and slacken his speed or stop, and that the motorman would do so rather than endanger a collision, but in so thinking, and acting in pursuance of such conclusions, he was careless and not in the exercise of ordinary care. Ordinary cantion does not mean unreasonable hesitation or reticence, but it does involve, at least, conduct which refrains from taking voluntarily and unnecessarily a dangerous course fraught with obvious and probable danger. However, we do not rest our decision on negligence per se, or as a matter of law. The evidence of Capouch, Knaus, Bightman and Began, all of whom were on the front platform of the car at the time and all of whom testified that the horse when from 5 to 10 feet from the car swerved or turned towards the east, and that its head coming in collision with the car broke a window in the vestibule, is so consistent with the subsequent physical situation, and of such probative force, that we are impelled to the conclusion that the verdict of the jury was clearly against the weight of the evidence. The judgment is, therefore, reversed with a finding of fact.

Reversed with a finding of fact.

Finding of fact. We find as a matter of fact that the plaintiff was guilty of contributory negligence.


text:
    Pauline Sturm, Appellee, v. The Employers’ Liability Assurance Corporation, Ltd., Appellant.
    Gen. No. 23,829.
    1. Insurance—what constitutes accidental death. One who comes to his death by drowning suffers death by external, violent and accidental means.
    2. Insurance, § 601

      —what constitutes prima facie case of accidental death. Proof that a man, a few minutes after being seen apparently in good health, was found under water, dead, is sufficient to create a prima facie case of accidental death, within the terms of an accident policy.
    3. Evidence, § 478

      —when doubtful conclusion arises from inferences upon inferences. Although inferences from inferences may, under certain circumstances, be admissible, the more remote the inference the more enfeebled its probative value, and doubt as to any one of them renders the conclusion doubtful.
    4. Insurance, § 686

      —when death by accidental drowning is question for jury. Evidence that insured was found dead in a bathtub after having been seen in apparent health a few minutes before, coupled with proof of some of the external indicia of death by drowning, held to warrant submission to the jury of the question as to whether insured’s death was caused by accidental drowning, notwithstanding expert testimony that death was due to disease.
    5. Insurance, § 231

      —when warranties and representations refer only to original accident policy. Warranties arid representations in connection with an accident policy, issued for annual periods, held to refer to the original policy and not to renewals.
    6. Insurance—when drowning of diseased person is sole cause of death. Where insured was found dead in a bathtub, the fact that he may have been diseased and that his abnormal condition may have led to his falling into the tub and being drowned would not prevent a recovery on the policy, since if he came to his death by drowning, legally that was the sole cause of his death.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 16, 1918.
    Rehearing denied October 28, 1918.
    Winston, Strawn & Shaw, for appellant; John D. Black, of counsel.

      Moses, Rosenthal & Kennedy, for appellee; Joseph W. Moses and Walter Bachrach, of counsel

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Taylor

delivered the opinion of the court.

An accident policy, issued on March 20, 1911, to Adolph Sturm, provided that, in case of his death by accident, the amount of the policy should be payable to Pauline Sturm, the plaintiff, and Adolph Sturm having since died, the question arises whether his death was caused in such a way as to make the defendant liable under the policy. The insured died on the morning of June 6, 1914, while in a bathroom which adjoined his bedroom at his home in Chicago; and the question submitted to the jury for its consideration was whether the death of Adolph Sturm was caused by drowning. There were no eyewitnesses to his death, so that the evidence is entirely circumstantial. The jury brought in a verdict for $8,494.79, upon which judgment was entered. This appeal was taken therefrom.

Adolph Sturm, to whom the accident policy in question was issued, was at the time of his death 67 years and 8 months of age, and apparently in good health. He was 5 feet 5% inches tall, and weighed between 150 and 155 pounds. He was robust, large around the waist, somewhat corpulent and full-blooded. With the exception of two attacks of facial erysipelas, occurring 15 months or more prior to his death and lasting a few days, he had no illness between March 20, 1911,. and the time of his death. He attended to his business—that of- a clothing manufacturer—every day, save when he had erysipelas, and was active up to the day of his death. He lived with his wife, his daughter Celia, and his daughter Claudine and her husband, Milton ■ Sturm, in a two and one-half story house at 3933 Pine Grove avenue. He and his wife occupied the front bedroom. Connected with that bedroom was a private bathroom, in which there was a porcelain tub with ordinary faucets and a drainpipe at the foot. The upper part was rounded and the bottom of the tub was curved. According to the testimony of the daugther Celia, it was so curved that she would never bathe in it. The tub was 5 feet 1% inches long, between 28 and 29 inches wide, and 16% to 17 inches deep. One side of the tub was close up against the side of the bathroom, and in the wall on that side, from 4% to 5 feet above the floor, there was a window. On the ledge of that window the deceased was in the habit of keeping a bottle of bay rum and a small case in which he kept his safety razor. It was, each morning, the habit of the deceased to get into the bathtub, and, while the water was running in, to lather his face and shave himself.

The evening before his death he received a visit from his son Meyer and his wife, and in the course of the evening, after dinner, played cards with his daughter Celia. About 11 o’clock that night Meyer Sturm and his wife went to their home in Wilmette, and shortly afterwards the assured and his wife retired. Although they slept in the same room, they occupied separate beds. The next morning, about 7 o’clock, the assured got up and went.into the bathroom and opened the faucet to let the water run in for his bath. He then went out into the hall and got some towels. He then went back and got into the bathtub. The plaintiff got up and dressed and went into the bathroom and spoke to the assured, who at the time was sitting in the tub, with the water still running, lathering his face ready "for his shave. At that time the tub was only half full. The plaintiff, after telling him that she would go down and see that his breakfast was all right, left him in the bathtub and went downstairs. After attending to certain household matters downstairs, as well as on the second floor where the bathroom was located, and doing some telephoning, she went hack upstairs into the little back sitting room and began reading the newspaper. After reading several minutes and waiting for her husband to come out of his room, and not hearing any noise, she went forward into her bedroom, but he was not there. As the time taken before coming down to breakfast was more than usual, she went into the front bedroom, and not seeing him there went into the bathroom and found the assured dead in the bathtub. He was entirely under water—which was lukewarm— with his knees up and head “forward on his chin.” The water was a foot deep over his head. The plaintiff screamed out his name and then took hold of his body by the shoulders and pulled it out as far as she could. She held on for a few minutes, screaming while she did so. The level of the water was about 2 or 3 inches below the top of the tub, the latter being as full as it could be, being up to the top of the drain. There was about a day’s growth of beard on the face of the assured, indicating that death occurred before he began shaving. The safety razor was on the bottom of the tub when the body was first discovered. There was no hair or soap on the blade. The plaintiff’s daughter came in and shortly after, her son-in-law. The water was then let out of the tub. There was considerable water on the floor of the bathroom. Milton Sturm came in and poured some whisky between the lips of the assured. Shortly afterwards Dr. Wermuth arrived, and after examining the body of the assured and finding no pulse and no heartbeat, undertook artificial respiration, but with no result, though at the time about a pint of water came from his mouth. The artificial respiration consisted of expansion and contraction of the chest, lifting the arms up and then putting them down. It produced no beneficial result, however, as the body was cold and rigor mortis had already set in. The liquid which came from his mouth was rather dark colored. After Dr. Wermuth left, Milton went back upstairs into the bathroom, and saw that there was a sort of lather-like sputum running out of the corners of the mouth of the deceased. It was a great deal like saliva would look, if it were churned between the teeth. It was viscid and bubbled out of the corners of his mouth. Somewhere between half an ounce and an ounce came out. Shortly after-wards Dr. Kunz called and examined the body and concluded that he was dead and had been for some time. He did not see any marks of violence" on any part of the body.

Subsequently, on June 6, 1914, the coroner’s physician, Dr. Bheinhardt, made a post-mortem examination. He found no external marks or evidence of violence. When he first saw the body there was no foam on the lips or mouth. The post-mortem examination disclosed to him that there was oedema of the brain, arterio-sclerosis of the arteries of the brain, a frothy liquid which could be easily expressed from the lungs, and the lungs full of fluid mixed with air, and some congestion of blood in the lower part of the lungs, arterio-sclerosis in the arch of the aorta, and no water in the lungs, and no fluid or hemorrhage appearance about the contents of the trachea and bronchial tubes; that the inner lining of the heart was roughened and the valves arterio-sclerosed; that the heart was abnormal in that the muscular construction was degenerated by diseased conditions; that there were fatty changes in the liver; that the kidneys were diseased with chronic interstitial nephritis, and with cystic degeneration. It was his opinion that the assured did not come to his death by drowning. Dr. Fischer, who was present at the post-mortem and took part in the examination, was of the opinion that the deceased did not drown, but died from chronic myocarditis complicated by chronic nephritis. He, however, stated that the lather-like foam would suggest that drowning might have occurred, and further that it would be possible for a man who had the diseases that the assured suffered from to die of drowning.

Afterwards, on June 18,1914—the body having been embalmed, buried and then exhumed—an autopsy was held at Eosehill Cemetery, by Drs. Hektoen, Hamill, Moyer, Dagg and Eustis. Dr Hektoen found no evidence of water in the lungs; no evidence of hemorrhage in the lining of the lungs; ho froth mixed with blood or otherwise, and was of the opinion that the assured died from heart disease and not from drowning. He stated, however, that froth in the air passages is a very constant sign of drowning, and that it was possible for one having heart disease to die by drowning. Dr. Hamill, who was present at the autopsy at Eosehill and examined part of the organs of the deceased at the Columbus laboratory, said that he found no frothy fluid or water in the bronchial tubes or the trachea; that there was a little frothy fluid in the lower lobe of the right lung; that in his opinion the assured died of myocarditis. Dr. Moyer was of the opinion that the emission of foam from- the mouth would be of great importance in determining whether the assured died from drowning; that it would depend somewhat on the ldnd of foam, the size of the bubbles, and its character. Dr. Dagg was of the opinion that the presence of foam coming from the mouth is a usual sign of death by drowning. Dr. Wermuth, who saw the body on the morning of its death, and undertook to produce artificial respiration, stated that liquid came from the mouth; that it was rather dark colored, like dirty water and grease, and that he came to no conclusion as to the cause of death; that he found no characteristic symptoms of any particular cause which he recognized as a possible cause of death. None of the doctors, Wermuth, Kunz, Moyer and Dagg, who were called as witnesses by the plaintiff, was asked whether he had formed an opinion as to the cause of the assured’s death.

At the close of the plaintiff’s case, and also at the close of all the evidence, the defendant moved the court for a directed verdict. Both motions were overruled and the cause submitted to the jury. The latter found the defendant guilty and assessed the plaintiff’s damages at the sum of $8,494.79, and after a motion for a new trial, and in arrest of judgment, both of which were overruled, judgment was entered upon the verdict in favor of the plaintiff.

The accident insurance policy was issued on April 15, 1911, for one year thereafter. The consideration therefor was $25. By it the defendant insured Adolph Sturm “against the contingencies specified in the schedule of contingencies and benefits, * * * subject to the definitions contained in the schedule of definitions.” The “schedule of definitions” provides that the word “injury ” shall be defined as “bodily injuries sustained during the term of this policy, solely and independently of all other causes through external, violent and accidental means.” The policy provided that the amount set forth in the policy should be payable to the lawful wife (the plaintiff) of said Adolph Sturm. On February 24, 1912, in consideration of $25, the defendant delivered to the latter a renewal receipt, continuing in force the policy of insurance from March 20, 1912, to noon, March 20, 1913, and further renewals were made up to March 20,1915.

It is the law that one who against his will comes to his death by drowning suffers death by external, violent and accidental means. Manufacturers’ Accident Indemnity Co. v. Dorgan, 7 C. C. A. 581, 58 Fed. 945.

In the instant case, therefore, the critical question in whether the insured came to his death by involuntary drowning, or from some other cause, such as disease. Where a man, a few minutes after being seen apparently in good health is found under water, dead, and nothing more is known of the cause of death, the immediate conclusion arrived at is that he was drowned. As the result of common sense and common experience, that opinion is formed by the normal processes of almost instant reason, and it may be said that legally such circumstantial evidence makes out a prima facie case of accidental drowning. Trew v. Railway Passengers’ Assur. Co., 6 Hurl. & Norm. 839. Of course, evidence subsequently may be disclosed that conclusively proves the contrary, or, at least, leaves the mind in doubt. Is there such evidence here? As no one saw death take place, the only evidence contradictory of drowning is that of the expert opinions of some of the doctors who physically examined the body of the deceased.

The theory of the doctors called by appellant was that, as there are according to their knowledge and experience certain physical indicia of drowning, some external, such as the exuding from the mouth, shortly after death, of water and a lather-like foam, a strongly corroborating symptom that death took place after the body was submerged; others, internal, discoverable upon a post-mortem examination of the body— such as frothy or bloody material in the bronchial and other air tubes leading into the lungs and certain hemorrhages—and, as they failed to find those indicia, but did find what in their judgment was evidence of certain mortal diseases—arterio-sclerosis, nephritis, myocarditis, and oedema of the brain, or some of them —-death came from disease and not from accidental drowning. It was admitted, however, that even though the insured was suffering from all the diseases of which they found evidence, still death could have occurred from drowning. The evidence, however, does show some external indicia of drowning. Milton Sturm testified that when he went back into the bathroom “there was a sort of lather-like sputum running out of the corners of his mouth. * * * It looked a good deal like saliva would look if you sort of churned it between the teeth. The bubbles were very-fine, not exactly slimy. It was viscid. It had some sort of body to it. It bubbled out of the comers of his mouth.”

Dr. Dagg was of the opinion that the foam which came from the mouth and which was otherwise present was evidence of drowning. Dr. Moyer said it depended on what kind of foam it was, the size of the bubbles, its character, and that a certain kind of foam might suggest drowning. Dr. Fischer was of the opinion that the lather-like foam would suggest that drowning might have occurred. Dr. Hektoen said that he found no evidence of water in the lungs—one of the characteristics of drowning—no froth mixed with blood or otherwise in the bronchial tubes or the trachea, no evidence of hemorrhage about the aorta— characteristics of drowning—and yet he admits that ecchymosis is not present in every case of drowning, and that one of the most constant signs of drowning is froth in the air passages and that, although he found none on June 18, 1914, when he made his examination, osmosis may have taken place, that is, the frothy substance might have gone out of the air passages into body tissues. As to the internal evidence, it was the general opinion of the experts that there was none.

Just what took place which caused the assured to go under water, whether it was his will—though, of course, the presumption is against suicide—or whether it was without design, as, e. g., a syncope, cannot now with absolúte certainty be known. One of the diseases from which he suffered, according to the opinion of the experts, may have caused him to become unconscious and then to slip or fall in and drown. Then, too, assuming the latter to have taken place, it may be that the internal evidence of drowning where one is unconscious, when he falls in, is slightly different from the case where one is conscious at the time. Many doubts arise as to the trustworthiness and scientific value of the experts ’ opinions in the present case, and especially is that true when we realize that they involve, first, an assumption that there are certain symptoms which are a constant characteristic of drowning; second, that an examination of the body by three of them, after it had been embalmed, buried and exhumed, disclosed none of the characteristic symptoms of drowning; third, it did disclose certain mortal diseases; fourth, a conclusion that death was caused by disease.

If any one or more of those inferences is doubtful, the ultimate is doubtful. Of course, an inference from an inference, and then a third and fourth may, under certain circumstances, be admissible (Ohio Building Safety Vault Co. v. Industrial Board, 277 Ill. 96 [14 N. C. C. A. 224]), but the more remote the inference the more enfeebled its probative force. Considering the prima facie case made out by the practically undisputed objective circumstances of the assured’s death, qualified as it may be by the opinions of the experts, it was entirely proper that it should be submitted to the jury; and, as we are of the opinion that there was ample evidence of accidental drowning, the judgment must stand.

The claim of the appellant that the general demurrer of appellee to the second additional plea was improperly sustained is untenable. A reasonable interpretation of the policy and certificates leads to the conclusion that the representations or warranties had reference only to the time when the original policy was issued. Fidelity & Casualty Co. v. Meyer, 106 Ark. 91, 152 S. W. 995.

The appellant claims, further, that it was error to refuse certain proffered instructions. We have examined them and concluded that they were properly excluded. Those, in which it was stated to be the law that if disease contributed to the death of the insured the plaintiff could not recover, were improper. In view of the facts in this case, such instructions were inapt. Even though' the insured were diseased and his abnormal condition led to his falling into the water and being .drowned—and so in a sense contributed to his death—it is not the law that that contribution of disease to his death would prevent the plaintiff from recovering. The law distinguishes between so-called successive causes as between successive physical conditions ; and the proximate excludes the more remote. If the deceased came to his death by drowning then, legally, that was the sole cause of his death. Bohaker v. Travelers’ Ins. Co., 215 Mass. 32; Manufacturers’ Accident Indemnity Co. v. Dorgan, 7 C. C. A. 581, 58 Fed. 945; Lawrence v. Accidental Ins. Co., L. R. 7 Q. B. Div. 216; Winspear v. Accident Ins. Co., L. R. 6 Q. B. Div. 42.

The contentions as to certain rulings upon the evidence we have considered and find untenable.

Finding no error in the record the judgment is affirmed,

Affirmed.