text:
    Maria C. Baum et al., Appellees, v. Bernhard Hartmann et al., Appellants.
    Bills of review—when newly discovered evidence will not sustain. Alleged newly discovered evidence cumulative in character and not of an important and decisive character will not support a hill for review predicated upon newly discovered evidence.
    Bill of review. Appeal from the Circuit Court of St. Clair county; the Hon. C. T. Moobe, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed February 11, 1910.
    C. A. Karch and L. D. Turner, for appellants.
    Winkelman, Dill and Miller, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

This appeal brings before us the record of a proceeding wherein a demurrer was sustained to appellants’ amended bill, and appellants electing to stand by the bill, a decree was entered dismissing it and for costs against appellants.

The bill is of great length and seeks to review several decrees entered in the same controversy by the Circuit, Appellate and Supreme Courts. It is impracticable to set it forth in detail within the reasonable limits of an opinion, and a brief synopsis of it is only necessary to an undertanding and determination of the questions involved.

It appears from the bill that one Simon Baum was on August 3, 1894, by the County Court of St. Clair county, appointed guardian of his two minor children, Maria C. Baum, appellee, and her brother, Charles W. Baum. He executed a bond as such guardian with appellant, Bernhard Hartmann, and one Jacob Spies as sureties. As guardian there came into the hands of Baum the sum of $3,400, the money of his wards, with which on June 26, 1895, he purchased a piece of real estate in said county from one George Gruenwald and on the same day he executed and delivered to appellants Hartmann and Spies a mortgage on the same real estate to indemnify them as sureties on said bond as guardian. Appellee, Maria C. Baum, became of age on June 1, 1899, and on June 10, following, she executed to her guardian, 'Simon Baum, a receipt in full for the amount due her from him as guardian, and went before a judge. of the Probate Court and requested the discharge of her guardian, giving as a reason that the money was invested in a home occupied by her father and she wanted him to have the property and did not want him disturbed by the sureties on his bond which would result if she demanded the payment of the cash due her. She was advised by the probate judge of her rights but she insisted upon the discharge of her guardian and an order was entered discharging the guardian from further liability on the bond.

On June 3, 1901, Simon Baum and Johanna Baum conveyed the real estate to Johanna who was the stepmother of appellee, Maria C. Baum.

On January 19, 1902, Simon Baum died intestate and insolvent and after his death appellee Maria insisting the real estate should be secured to her, Johanna Baum who held the title, conveyed the same on February 20, 1903, to one Frank C. Bux, trustee, and although not so expressed, he was to hold as trustee for appellee Maria and her brother Charles W. When Charles came of age, appellee insisted the two should accept the real estate as payment of the amount due them, from the guardian. Charles refused and he was paid the amount due him by appellants.

On February 20, 1903, Bux, trustee, and wife executed a deed which conveyed the real estate to appellee, Maria Baum, by a quit-claim deed and December 18, 1905, they aclmowleged it and filed it in the office of the recorder where it remains.

At the September term, 1903, of the St. Clair County Circuit Court, appellee, Maria Baum, filed her bill against appellant Hartmann in which she alleged that he and Jacob Spies, since deceased, had become sureties on the guardian bond, that when she became of age she settled with the guardian and he was discharged by the Probate Court and prayed to have the order of discharge set aside and her receipt annulled on the ground no money was paid to her. At the September term, 1903, the cause was heard and a decree rendered in her favor against appellant Hartmann setting aside the discharge and annulling the settlement finding the amount due from the guardian and directing payment. From this decree there was an appeal to this court where the decree was reversed and remanded for want of proper parties. The bill was amended by making the personal representatives of the estate of Jacob Spies party defendant when the cause was again heard and on December 7, 1904, a decree was rendered finding the equities for appellants and against appellee, Maria Baum. From this decree Maria sued out a writ of error to this court to the February term, 1905, where the decree was affirmed. Baum v. Hartmann et al., 122 Ill. App. 444.

To reverse the order of the Appellate Court, appellee Maria sued out a writ of error to the Supreme Court where the order of affirmance of the Appellate Court and the decree of the Circuit Court were reversed and the cause remanded to the Circuit Court with directions to enter a decree in favor of appellee Maria “for the amount which may be found upon an account to be due, disregarding the alleged order of discharge of the guardian and receipt.” Baum v. Hartmann, 226 Ill. 160.

It further appears from the bill that cause was redocketed in the Circuit Court and was heard at the September term, 1907. Appellants then filed separate amended answers which were stricken from the files. Appellants then filed a second amended answer alleging that since the decree which was reversed in the Supreme Court, Simon Baum on June 3, 1901, had conveyed the real estate to his wife, Johanna, by the consent and knowledge of Maria thereby ratifying the settlement made with her guardian; that she permitted her father Simon to receive the rents; that on February 20, 1903, Johanna conveyed the real estate to Bux as trustee for her; that she knew the conveyance was made for her benefit; that she received the rents; that Bux conveyed the property to her; that in a suit to foreclose the mortgage which had been given by her guardian to appellants to indemnify them as sureties on his bond and which they were foreclosing for the amount which they had paid Charles W. Baum, she filed an interpleader claiming to be the owner of one-half the real estate and that her interest was not subject to the mortgage; that such second amended answer was on her motion stricken from the files and the court upon taking an account found the amount due her as per direction of the Supreme Court to be $2,422.50. From this finding and order the cause was appealed to this court where the order of the Circuit Court was affirmed (Baum v. Hartmann et al., 143 Ill. App. 346) and on appeal to the Supreme Court, the decree of this court was affirmed. Baum v. Hartmann et al., 238 Ill. 519. The bill has incorporated in it as part of it, the opinions of this court and the Supreme Court last above cited and the order of the Supreme Court reported in 226 Ill. 160, hereinbefore noted.

As we understand the bill it prays to review the order of the Supreme Court contained in Baum v. Hartmann, 226 Ill. 160, and also the decree of the Circuit Court entered in conformity with, and as directed in said order and also the said decrees of this court and the Supreme Court affirming such order of the Circuit Court upon two grounds, namely: First, that said holding and order of the Supreme Court is erroneous, and ought to be reviewed, overruled and set aside for apparent errors and imperfections, and, second, on the ground of newly discovered evidence.

The first ground is not urged in appellants’ brief and will not be considered.

The alleged newly discovered evidence upon which it is sought to have said decrees and orders reviewed and which is also alleged in the bill is, that evidence can be introduced on behalf of appellants that after her father’s death and when she was not under his influence and after the decree which was reversed with directions to the Circuit Court to enter the decree in favor of appellee “for the amount which may be found upon an account to be due disregarding the alleged order of discharge of the guardian and receipt” in a family consultation appellee said she was willing to carry out her original intention to take the real estate rather than pursue her remedy on the bond, and also when the mortgage of appellants which Simon Baum had given the sureties to indemnify them as sureties on his bond was being foreclosed she interpleaded and claimed one-half interest in the property which was denied her because she had elected to sue on the bond and she could not change her remedy. And it is insisted this proposed evidence if true would produce a different result on the merits since the Supreme Court in its opinion stated that there was no evidence in that case tending to prove the absence of any influence exerted by the father over her, and the proof should show that she reached the determination to request his discharge without being influenced by her guardian. And that therefore the proposed evidence would produce a different result on the merits.

“A party may file a bill of review for newly discovered evidence ® * *. The evidence must not be cumulative, and must be of an important and decisive character if not conclusive, and 'must usually consist of documentary evidence.” Griggs et al. v. Gear, 3 Gilman 2; Aholtz v. Durfee, 122 Ill. 292.

“The newly discovered evidence upon which the court is asked to review and reverse the former decree, must not be cumulative and must be of an important and decisive character if not conclusive. It must be such as would apparently have produced a different result had it been known and brought before the court.” Elzas v. Elzas, 183 id. 134; Lewis v. Topsico, 201 id. 329; Willems v. Willems, 72 Ill. App. 201.

“It is well established that new evidence will not avail on a bill of review where the evidence relied upon simply tends to the establishing of the issues originally presented and disposed of; in other words, where it is merely a matter of reducing or increasing by cumulation the evidence heard upon the issues.” Adamski v. Wieczorek, 93 Ill. App. 363.

In view of the well-settled principles above cited, we are of opinion appellants did not bring themselves within the rule entitling them to relief.

It appears to us from the matters alleged including the opinions of the Supreme and Appellate Courts, which are made part of the bill, that the proposed evidence would be, if of any weight at all, merely cumulative upon the question litigated there whether appellee Maria was or was not, under the influence of her father at the time he was discharged as guardian.

Nor do we regard the proposed evidence of an important and decisive character upon that question. We have carefully considered all the proposed evidence contained in the bill and while we cannot certainly know what result it would produce upon another court, m our opinion it would not be decisive in character or .produce any different result.

We are of the opinion there was no equity in the bill and the court committed no error in sustaining the demurrer and in dismissing it.

The decree is accordingly affirmed.

Affirmed'.


source: Caselaw Access Project

author: Mr. Justice Shirley

license: Public Domain

text:
    Emil Erlinger, Appellee, v. St. Louis & O’Fallon Railway Company, Appellant.
    1. Sapety Appliances Act—requirement in regard to automatic couplers construed. The installation of automatic couplers is not a complete performance of the obligations imposed by .this act; after automatic couplers have been installed the duty is implied from the statute, although penal in character, that such automatic couplers shall be kept in good condition and repair.
    2. Masteb and seevant—when vice-principal fellow-servant. A foreman in charge of a crew of workmen is a vice-principal so long as he acts as the representative of the master; when, however, he performs duties of a mere servant, he ceases to be a vice-principal and becomes a fellow-servant.
    Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. Moetimeb Mjxlaed, Judge,- presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed February 11, 1910.
    Wise & Keefe, for appellant; M. IT. Hayden, of counsel.

      Webb & Webb, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

This cause was tried on an amended declaration containing two counts, in which it was alleged in the first count that appellee was employed by appellant, a railroad company, as a switchman while it was operating a train of cars over its tracks; that in violation of the statute appellant had in its train, cars equipped with couplers which could not be uncoupled without the necessity of going between the ends of cars, by means whereof and while appellee was be-teen the ends of said cars for the purpose of making an uncoupling, he fell and was dragged and thereby injured.

The second count after stating the employment and his duty to switch cars, averred he was subject to the orders of a foreman of appellant and while a train being operated by appellant was being switched, he was ordered by the foreman to go between two cars while the train was in motion to uncouple the cars by lifting the coupling pin with his hand, and that while on the end beam of one of said cars in the exercise of due care, and while stooping to lift the coupling pin, the foreman knowing he was between the cars, without warning to him, signalled the engineer to stop the train which the engineer, not knowing appellee was between the cars, did at once, whereby appellee was thrown from his position and dragged and permanently injured.

There was a judgment from which appellant appealed.

The alleged errors urged as grounds for reversing the judgment are, first, the refusal of the trial court on motion of appellant to direct a verdict at the close of the evidence, and second, the giving of improper instructions on behalf of appellee and refusing to give proper instructions asked by appellant.

It appears from the evidence submitted, in which there was little conflict, that appellee was employed by appellant as a switchman in the operation of a train operated between Bast St. Louis over appellant’s road, a distance of seven or eight miles, and the “Nigger Hollow Mines.”

On December 24, 1907, the day of the accident, the train, composed of an engine and fifty-one cars, was being pushed by the engine which was attached to its west end and running backwards eastwardly from Bast St. Louis to the mines. The crew of the train besides the engineer and fireman was composed of a foreman named Ferguson, one Haney called a field-man, and appellee who had been engaged in the work some four years, and was generally familiar with it. At about three o’clock in the afternoon, the train reached O’Fallon switch when it became necessary to switch some cars of the train into the suburban yards. The cars to be switched composed a section of the train beginning after the seventeenth car from the engine. This car was a box car which was made to haul miners back and forth from the mines. Appellee was standing on this car and in order to switch the section of cars into the yards, it was necessary to uncouple them or cut them out from this box car, by a running switch. The foreman who had alighted from the train and was standing south of the track near the box car upon which appellee was, gave the signal to uncouple or cut off. To do this, appellee climbed down the side of the car by the lateral irons, placed his foot in an iron stirrup extending below the sill of the car and attempted to uncouple the section from the car by means of a pin lifter with which the car was equipped so that the car might be uncoupled without the necessity of going between the cars to lift the pin. The train was then in motion and appellee, while hanging to the side of the box car by Ms left hand, made an effort by trying three or four times to uncouple the train by the pin lifter. The lifter would not lift the pin and appellee called to the foreman, “I can’t get her,” and the foreman answered, * Get in and get her. ’ ’ Appellee got between the cars and held to a rod of the box car with one foot resting on a rod and the other on the sill of the car and reaching over, uncoupled the cars; just as he did tMs, the box car he was holding to, stopped so suddenly as to cause the hold of appellee to break and he was thrown from the car and in front of it onto a trestle when the portion of the train in front rebounded and as one of the trucks ran over him, he caught hold of the trucks and wrapped Mmself aroqnd them and was carried some distance before the cars were stopped and he was taken out. At the time appellee made the uncoupling, the train was moving at about five miles an hour and from his position between the cars he could not be seen by the engineer. The signal to stop the tram was given by the foreman wMle appellee was between the cars, and who knew of his situation.

The box car was equipped with an automatic coupler for the purpose that the car might be coupled by impact and for the purpose of uncoupling there was attached to it and connected with it a pin lifter which was a rod fastened along the end of the car and extending out to the side. Connected with the rod was a chain wMch also connected with the coupling pin by means of which the pin could be lifted and the cars uncoupled from the side of the car. Appellant’s inspector testified he inspected the car prior to December 24, 1907, but does not say just when and does not know where the car was on the 23rd and 24th of December. There was no evidence of any notice to appellant that the coupler would not do the work intended, that is, that the pin lifter operated from the side of the car would not lift the pin and uncouple the coupler as it failed to do.

The breach of duty alleged in the first count of the declaration arises if at all, upon a failure by appellant to observe a statutory duty whereby appellee was injured. Section 224 of chapter 114, provides:

“That from and after the passage of this act, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line, any locomotive, tender, car or similar vehicle used in moving State traffic not equipped with couplers, coupling automatically by impact and which can be uncoupled without the necessity of a man going between the ends of cars.

“Sec. 231. That any employe of any such common carrier who shall be injured by any train, locomotive, tender, car or similar vehicle in use, contrary to the provisions of this act, shall not be deemed to have assumed the risks thereby occasioned, nor to have been guilty of contributory negligence, because of continuing in the employment of such common carrier or in the performance of his duties as such employe after the unlawful use of such train, locomotive, tender, car or similar vehicle had been brought to his knowledge.

‘ ‘Sec. 228. That any such common carrier using any locomotive or tender running any train, etc., in violation of the provisions of this act, shall be liable to pay a penalty of $100 for each and every such violation.”

It is insisted that where the appliances so required have been placed upon the cars the railroad company has fully performed the duty imposed and is not bound at its peril that the appliances are in repair and condition at all times; that the statute is penal and should not be given a construction that will place some obligation in it which is not there.

The general rule is that statutes imposing a penalty should have a strict construction but the rule is not to be carried to the extent that it defeats the obvious intention of the act.

“The rule of strict construction whenever invoked comes attended with other rules and qualifications no less important and it is by the light which each contributes that the meaning must be determined. Among them is the rule that the sense of the words is to be adopted which best harmonizes with the context and promotes in the fullest the policy and object of the Legislature.” Endlich Interpretation of Statutes, sec. 337.

“The paramount object in construing penal as well as other statutes is to ascertain the legislative intent.” Ibid.

It is obvious that the mischief intended to be remedied here was the dangers incurred in going between the ends of cars to couple and uncouple them, and the policy and object of the legislature was to put an end to that necessity by requiring the kind of equipment therein provided.

We think that simply to furnish the equipment is not such full performance of the duty imposed as the law requires. To so hold would be judicially to nullify the very purpose and object of the act. The cars are not only to be so equipped, but they must be so equipped as they may couple automatically by impact and so they may be uncoupled without the necessity of a man going between the ends of cars. The law not only requires the equipment but it requires such equipment as at all times when in use avoids the necessity of going between the ends of cars.

By section 231 of the statute, the employe is relieved of all assumption of risk or of contributory negligence in continuing in the performance of his duties after a failure to comply with the provisions of the act by the railroad company has been brought to his knowledge. From what we have said respecting the duty of the railroad company and from the provisions of section 231 above quoted, we are of opinion that the common law rule insisted upon, that the company after it furnishes the equipment has fully performed its duty and must have actual or constructive knowledge of the defect before it can be held liable, has no application.

We have carefully examined the testimony respecting the condition of the pin lifter at the time of the injury and we conclude it was sufficient to show it was so out of repair the cars could not be uncoupled without the necessity of going between the ends.

It is insisted there was no evidence tending to prove a liability under the second count. This count is based upon the alleged negligence of the foreman Ferguson in negligently signalling a sudden stop of the train while appellee was in the position described between the ends of the cars and "which resulted in his being thrown from his position. The theory of ap-. pellant is that there can be no recovery under this count because Ferguson was a fellow servant.

The evidence shows that while Ferguson gave orders to appellee and others of the crew in the operation of the train, he worked with the others in its operation. The giving of signals was part of the operation of the train in which the crew including Ferguson worked together. We are of opinion that in this part of the work Ferguson and appellee were fellow-servants. While the foreman may as to some things be a vice principal such as in giving orders concerning the work, in others he may be only a fellow-servant. Ferguson as foreman had the authority to give orders to appellee which it was his duty to obey and in this relation Ferguson was a vice principal and if the injury had resulted from obeying a negligent order of the foreman, the defense that they were fellow-servants could not be invoked. Under the averments of the count and the evidence, the injury did not result from a negligent order to appellee, but resulted from a negligent signal to the engineer and in this work and in the manner in which it was performed, the members of the crew including the foreman, came within the rule constituting them fellow-servants.

The objections urged to the instructions need not be considered as such instructions were upon questions raised by and involved in the second count of the declaration.

One good count in a declaration, if proved, is sufficient to sustain a verdict and we are of opinion the first count of the declaration is supported by the evidence and there was no error in the refusal of the court at the close of the evidence to direct a verdict for appellant. The judgment is affirmed.

Affirmed.


text:
    John Moore, Appellee, v. T. J. Maxey, Appellant.
    1. Instructions—need not repeat. An instruction stating a correct proposition of law, though refused, will not reverse if its substance is contained in other instructions given.
    2. Slander—when instruction authorizing merely nominal damages properly refused. If the slanderous words charged and proved were slanderous per se, an instruction which limits the jury to the awarding merely of nominal damages is properly refused.
    3. Slander—what element of damage. Where words spoken are actionable per se, mental suffering produced thereby is a proper element to be considered in fixing the amount of damages. In such case there need be no direct evidence of mental suffering to enable the jury to consider it in their estimate of damages, but it may be inferred from the nature of the injury, and juries may, from their knowledge and experience of human nature, estimate damages which may result from mental anguish and suffering occasioned by a baseless charge of crime, without direct evidence, although it would also be permissible to prove such suffering was exhibited by speech or otherwise.
    4. Slander—when limitation as to damages improper. In an action of slander charging the use of words libelous per se it would be improper to limit the jury to the award of merely pecuniary damages.
    5. Slander—when instruction as to proof of slanderous words not misleading. Held, that the words of slander charged, being so plain and not susceptible of misunderstanding by the jury, that an instruction was not misleading which told the jury that if a sufficient number of words laid in the declaration were proven to have been spoken by the defendant to others which would amount to a charge of larceny, the jury should find the defendant guilty unless the plea of justification had been proven by a preponderance of the evidence.
    6. Slandeb—what proof not sufficient. It is not sufficient to prove the slanderous words substantially as charged in the declaration; but held, in this case, that an instruction erroneously stating the law in this respect did not constitute harmful error.
    Action for slander. Appeal from the Circuit Court of Williamson county; the Hon. W. W. Duncan, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed February 11, 1910.
    Denison & Spilleb, for appellant.
    Pillow, Smith & Stone, for appellee; Gordon Pillow, of counsel.
   Mr. Justice Shirley

delivered the opinion of the court.

This is an appeal from a judgment in favor of appellee recovered in a suit for slander. The declaration contained one count in which it was charged that appellant in the presence and hearing of others had said of appellee “I caught him stealing. I will tell anybody so.” “I caught him stealing my coal.” There was a plea of the general issue and a special plea in which by way of justification it was averred that in weighing coal appellee, as weighman for a coal company, used false scales that would weigh light and by that means feloniously stole coal of appellant, who by a contract with the company was entitled to a royalty on the coal hoisted and weighed by appellee, and that by such means appellee did steal for said company the coal of appellant.

The several assignments of error challenging the rulings of the .trial court which are urged upon this court in appellant’s brief are:

First, that the court erred in refusing instructions four and five offered by appellant. Instruction numher four as asked would have told the jury the ease was not a criminal case and the jury were not to try it the same as if - appellee was on trial on a charge of larceny and that all appellee was required to do was to prove his plea of justification by a preponderance of the evidence. The instruction stated a correct principle of law but the second instruction given on behalf of appellee and the fourth given on behalf of appellant each embody the same rule of evidence and it was not required that the court repeat it.

Instruction number five was properly refused. It . told the jury that although the appellant might have been guilty of using the slanderous words alleged, the appellee could recover only nominal damages unless the evidence showed that he had been injured and damaged in his good name and reputation, and brought into scandal and disgrace, and had been shunned and avoided and otherwise injured, unless the evidence showed appellant did not file his plea of justification in good faith.

Malice is implied where language is deliberately uttered imputing a crime such as larceny, and exemplary damages may be awarded in such case in the absence of proof of actpal damages. McKee v. Ingalls, 4 Scam. 30; Schofield v. Baldwin, 102 Ill. App. 560. And this is true when the declaration contained the averments that appellee had been damaged in his good name, credit and reputation.

Evidence that he had not suffered such damages was proper to be considered in estimating the actual damages and in mitigation thereof, but a want of such evidence would not relieve the appellant of such exemplary damages as the jury might award as a punishment for falsely and maliciously speaking words imputing a crime. Instructions seven, eight and nine asked by appellant were also properly refused for the like reasons.

Second. It is contended there was error in giving to the jury on behalf of appellee instructions two, three, five, seven, eight and ten.

The objections urged against number two is that it advised the jury that if appellee had proved one set of the slanderous words charged in the declaration he would be entitled to recover and that this left to the jury to. determine what was meant by the term “slanderous words.” The declaration set forth two sets of words only, alleged to have been spoken as hereinbefore set forth, both of which constituted charges of larceny and were actionable and it was necessary to prove enough of either of the sets of words alleged to constitute the charge. There was such evidence before the jury, and it is not possible the jury could have been misled by the instruction.

Instruction number three told the jury mental suffering if proven was a proper element of damage, and it is argued there was no evidence of mental suffering and therefore no evidence upon which to base the instruction. Where words spoken are actionable per se the mental suffering produced thereby is a proper element to be considered in fixing the amount of damages. Adams v. Smith, 58 Ill. 417; Welker v. Butler, 15 Ill. App. 209.

We are of opinion that in such case there need be no direct evidence of mental suffering to enable the jury to consider it in their estimate of damages, but that it may be inferred from the nature of the injury, and that juries may, from their knowledge and experience of human nature, estimate .damages which may result from mental anguish and suffering occasioned by a baseless charge of crime, without direct evidence, although it would also be permissible to prove such suffering was exhibited by speech or otherwise. Stowe v. Heywood, 7 Allen 118; Western Union Tel. Co. v. Adams, 75 Tex. 531.

Instruction number five was not erroneous. The jury had the right to determine from all the evidence in the case whether the plea of justification was or was not filed with the reasonable hope or expectation of proving the truth of it, and if not, they might regard the filing of the plea as an aggravation of the slander, in case they found from the evidence appellant was guilty of the slander charged, and had failed to prove said plea by a preponderance of the evidence. The instruction under the evidence in the case stated a correct principle.

Instruction number seven advised the jury that damages would be implied from falsely speaking the words charged, and if the jury found the appellant guilty they should determine what damages ought to be given under all the evidence. This instruction does not limit the jury to the actual pecuniary damages sustained. To so limit it would have been improper. If the words charged were falsely spoken, appellee was entitled to recover exemplary damages, whether any actual damages were suffered or not.

The eighth instruction sets forth that if a sufficient number of words laid in the declaration were proven to have been spoken by appellant to others which would amount to a charge of larceny, the jury should find appellant guilty unless the plea of justification had been proven by a preponderance of the evidence. The criticism is that the instruction leaves it to the jury to determine as a matter of law what are a sufficient number of words laid to constitute a larceny.

The charges laid in the declaration were the simple and direct charges that appellant had said -of appellee that he had “caught him stealing” and had “caught bim stealing his (appellant’s) coal.” These were charges of larceny not to be misunderstood by anybody fairly understanding the English language and the jury could not have been misled by the instruction.

Appellee’s tenth instruction was erroneous in charging the jury it was sufficient to prove the words substantially as charged in the declaration. It is not sufficient to prove the substance of the words, but enough of the words alleged or laid must be proved to amount to the substance of the charge. We are of opinion, however, the error was harmless. It was proven by the two witnesses who testified on this point that the language used by appellant contained enough of the words alleged to amount to a charge of larceny.

The witness McClintock testified that appellant said “I have caught Moore stealing coal” and the witness Stiritz testified he said, “I caught Moore stealing coal.” And while other words were testified to by the witnesses (over the use of which there was some controversy and confusion) which amounted only to a substance of the charge, yet there was ample evidence by both witnesses of the use by appellant of a sufficient number of the words averred to constitute the charge. Moreover the words which amounted only to the substance of the charge were not called for but were volunteered by the witnesses. In this view of the evidence, the instruction was not harmful and the error is not such as to warrant a reversal.

Third. We have considered the alleged errors of the trial court in admitting improper evidence offered by appellee and conclude there was no error.

The witness Stiritz in his testimony as above referred to said he did not remember the exact date when appellant made the statement of and concerning the appellee, but thought it was about a year before and that if this was true the alleged conversation would have taken place after suit brought. It was not established that the conversation was after suit brought but if so it would have been admissible in evidence in connection with the testimony of McClintock to show a repetition of the slander and in aggravation thereof, nor can we see any objection in admitting evidence of the circumstances under which appellee weighed coal and that he had been required to and had taken an oath as weighman.

The damages were not excessive. Upon a consideration of the entire record in the case we believe substantial justice was done and the judgment will be affirmed.

Affirmed.

Mr. Justice Duncan took no part in the decision of this case.


text:
    Orvin A. Cessna, Appellee, v. United States Life Endowment Company, Appellant.
    1. Insurance—what not material to risk. A bad cold is so slight an ailment that it is not material to be known by the company either as affecting the risk or to put such company upon inquiry concerning the state of the health of the applicant.
    2. Insurance—what constitute warranties. Where by the application and the terms of the policy the application is made a part of the contract between the parties and where the statements in such application are warranted to be true and there is no provision in such contract which relieved the statements from their character as warranties, they constitute warranties and not representations, and if false would avoid the policy whether innocently or intentionally made.
    3. Instructions—must he predicated upon evidence. The modification of an instruction authorizing the jury to predicate a verdict upon an immaterial issue, is misleading and erroneous; likewise is such a modification bad if it is not predicated upon evidence.
    Assumpsit. Appeal from the Circuit Court of Richland county; the Hon. J. R. Creighton, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed February 11, 1910.
    H. G-. Morris and Edwin Hedrick, Jr., for appellant; Sears, Meagher & Whitney, of counsel.
    E. B. Witcher and S. 0. Lewis, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

This is an appeal from a judgment for the sum of $116 recovered by appellee in the Circuit Court of Richland county.

On the 29th of April, 1908, appellant issued to one Della Pearl Cessna, a policy insuring her life in the sum of $2,000 payable in installments of $40 per month to appellee, who was her husband and beneficiary. The insured died May 25, 1908.

To the declaration alleging the issuing of the policy and her death, appellant filed a plea of the general issue and two special pleas averring that the assured in her written application agreed that the answers, declarations and warranties made therein, and the medical examination and certificate, should be made part of her contract of insurance; that in said application warranted by her to be true, she stated she had never been sick previous to said application, had never been seriously ill and had never had any medical attendant and was then, to wit, on April 15,1908, in good health. All of which statements were untrue and known by her to be untrúe; that she was then seriously ill and being treated for a serious affection of the lungs and had been informed by her physician of her serious condition; that appellant was deceived by such warranties and false statements in her application and was thereby induced to issue the policy.

Replications were filed traversing the material averments in the pleas.

The application was signed by the insured on April 15, 1908, and among the questions asked and answers made by the insured in the application, were the following :

“Seventh: When were you last ill? Never was sick.

•Eighth: Have you ever been seriously ill? No.

Ninth: What was the nature of your illness? (No' answer).

Tenth: Who was your medical attendant? (No answer).

Eleventh: Are you in good health now? Yes.”

The testimony of the agent shows the insured at the time of making the application when asked the above question “Are you in good health now?” Answered, “Yes,” and the agent says “She told me she had a cold.”

It was provided in the application that the insured agreed that the answers, declarations and warranties therein made and the medical examination certificate should be made part of the insurance contract, and the application contained also the following: “I hereby warrant the truth of each and all the above answers.”

The testimony of the attending physician, Dr. Weber, shows the immediate cause of her death was meningitis, the predisposing cause of which was pneumonia; that there was a pre-existing trouble in the lungs before the pneumonia and it was pronounced by this physician to be tubercular pneumonia. Dr. Weber’s first visit was May 12, when he found her very ill and says she had been ill for some time; that she was emaciated, and showed symptoms of having suffered from an exhaustive disease. Dr Weber further testified if she had been suffering some time from tuberculosis of the apex of the lungs and then had contracted a severe cold which resulted in acute pneumonia, all the symptoms he described would naturally follow.

Prior to her treatment by Dr. Weber, she had been treated by Dr. Watkins whose first visit was about April 11th, four days before she signed the application. He testifies he found her suffering from consumption, with the apex of both lungs badly involved and with a temperature of 102 or 103. Dr. Watkins states the disease had been in existence some time.

In addition to the above testimony concerning the condition of her health at the time of* and before the application, the certificate of the medical examiner made April 17th, shows no symptoms of consumption or other ailment and his certificate shows she was a proper subject for insurance, and besides he states in the certificate there was no indication she was not then entirely well.

The statement of the insured to the agent that she “had a cold” did not disclose any condition inconsistent with good health and was entirely consistent with her answer “yes” which she made to the question “Are you in good health now?” A bad cold is so slight an ailment that it was not material to be known by the appellant either as being material to the risk or to put it upon inquiry concerning the state of her health.

By the application and the terms of the policy issued to the insured, the application was made part of the insurance contract between the parties and as the statements in the application were warranted to be true, and as there was no provision in the contract which relieved the statements from their character as warranties they were warranties and not representations, and if false would avoid the policy whether innocently or intentionally made or not.

“It is generally true, that where the application is expressly declared to be a part of the policy, and the statements therein contained are warranted to be true, such statements will be deemed material, whether they are so or not, and if shown to be false, there can be no recovery on the policy, however innocently made, and notwithstanding their falsity may have no agency in causing the loss, or producing the death of the assured.” Continental Life Ins. Co. v. Rogers, 119 Ill. 474.

“Where the application for a policy of insurance is expressly declared to be a part of the policy and such statements are warranted to be true they will be held material whether they are or not, and if shown to be false there can be no recovery on the policy.” Metropolitan Life Ins. Co. v. Zeigler, 69 Ill. App. 447. The same doctrine is announced in Fame Ins. Co. v. Thomas, 10 Ill. App. 545; Bloomington Mut. Life Benefit Ass’n. v. Cummings, 53 Ill. App. 530.

Error is assigned upon the action of the trial court in modifying appellant’s instruction No. 1 and in giving improper instructions on behalf of appellee. The instruction as asked told the jury if the insured had made false statements in her application regarding her health, or falsely stated in her application that she had never been ill or was never sick or falsely stated she had never been seriously ill and that she was then in good health, she could not recover.

The court modified the instruction by inserting “or if she made such false statements to said agent of the company.” There was no statement made to the agent other than those written in the application except “she had a cold or a bad cold” which was not material and there was no material evidence upon which to base such modification. And it was misleading and erroneous.

Instruction No. 1 given for appellee was erroneous. It was as we have said immaterial whether she told the agent “she had a cold” nor was there any evidence before the jury that the agent told her it was of no consequence, nor did the statement “she had a cold” cast upon appellant any duty to ascertain the actual facts about her health as indicated in the instruction. Nor were any false answers inserted by the agent which question is submitted to the jury by the instruction, and it was error to give it.

Instruction No. 3 we think should not have limited the condition of her health to the time of signing the application wherein she was asked by the 7th question “When were you last ill” and she answered “Never was sick” and by the 8th question “Have you ever been seriously ill” and she answered “No.” These questions and answers were material and were warranties and the instruction eliminated them from the consideration of the jury.

Instruction No. 5, was as follows:

“The jury are instructed that in order that the defendant may avail itself of the defense of fraud set up in the pleas in this case, the jury must believe from the evidence not only that the statements and representations set forth in said pleas were made, but also that such statements and representations were false and that they were made with intent to deceive and defraud the defendant.”

If the statements being warranties were false, it was sufficient to avoid the policy; no intent to deceive or knowledge of the falsity was necessary and the instruction did not correctly state the law.

Instruction No. 4 was erroneous for like reasons.

After a consideration of all the testimony we are of opinion the verdict was manifestly against the weight of the evidence and the court also erred in denying appellant’s motion to set aside the verdict and for a new trial.

For the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


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    The People of the State of Illinois, Defendant in Error, v. Joe Evoldi, Plaintiff in Error.
    1. Informations—when in prosecution for unlawful sale of intoxicating liquor, sufficient. An indictment which does not charge that the alleged sale was unlawful and which does not contain the negative averment that the defendant did not have a license or permit to sell as a druggist, held, sufficient.
    2. Dram-shop Act—when imposition of sentence erroneous. If a conviction is had for the unlawful sale of intoxicating liquor under several counts of an information, it is error to impose sentence generally; sentence should he imposed on each count by which the defendant is found guilty.
    Proceeding by information. Error to the Circuit Court of Franklin county; the Hon. Thomas J. Myers, Judge, presiding. Heard in this court at the. October term, 1909.
    Reversed and remanded.
    Opinion filed February 11, 1910.

      W. F. Spiller, for plaintiff in error.
    Gr. A. Hickman, for defendant in error.
   Mr. Justice Shirley

delivered the opinion of the court.

The state’s attorney of Franklin county filed an information charging plaintiff in error in eleven counts with selling intoxicating liquors in anti-saloon territory. A motion was made to quash the information which was overruled and a plea of not guilty was entered. Upon- a trial by jury plaintiff in error was found guilty as charged in the first and second counts of the information. A motion for a new trial being made and overruled, the court sentenced plaintiff in error to pay a fine of $200 and be imprisoned in the county jail sixty days and to further remain therein until the fine and costs were paid or secured as provided by law. Plaintiff in error entered his motion for a new trial and in arrest of judgment, which being overruled he prosecuted this writ of error.

The first alleged error urged in the brief of plaintiff in error is that the court overruled his motion to quash the information. Neither count of the information charges the alleged sale was unlawful nor does either count contain the negative averment that he did not have a license or permit to sell as a druggist, and it is argued that a count should contain the allegation that the sale was either unlawful or contain the negative averment. We think the counts are sufficient without alleging the sale of liquor to be unlawful.

Each count charges plaintiff in error sold intoxicating liquor in the town of Benton, county of Franklin, being anti-saloon territory contrary to the statute, etc.

Section 11 of the act of 1907, entitled Dram-Shops provides: “It shall not be lawful to sell intoxicating liquors in any quantity whatever nor to grant or issue or cause to be granted or issued any license to sell intoxicating liquor in any quantity whatever within the limits of any political subdivision or district whatever in this state while the same is anti-saloon territory and if any such license be granted or issued in violation hereof the same shall be void.”

Section 12 provides penalties for selling in anti-saloon territory.

Section 18 provides for the sale by druggists to whom license or permits have been issued of liquor for medicinal, mechanical, sacramental and chemical purposes not to be drunk on the premises.

It is insisted that the exception to druggists in section 18 requires the negative averment in the information that plaintiff in error did not have a permit to sell as a druggist notwithstanding the exception is contained in a separate section, for the reason section 18 covers the entire act entitled Dram-Shops.

It is a rule of pleading that “if there be any exception in the same clause of an act which creates an offense, an indictment should show affirmatively that the defendant does not come within the exception, but if the proviso or exception be in a subsequent clause or statute or is not connected with the enacting clause by words of reference it becomes matter of defense and need not be negatived in the pleading.” Metzker v. The People, 14 Ill. 101.

Section 18, supra, does not come within the rule requiring the exception to be negatived in the pleading.

The only other assigned error argued is that the court should not have sentenced the plaintiff in error to imprisonment for the term of sixty days generally and should not have imposed a fine generally of $200.

In imposing the sentence there was error. It should have been imposed on each first and second count upon which plaintiff in error was found guilty. The amount of the fine on each of said counts should have been fixed and sentence pronounced accordingly, and the term of imprisonment on each of said counts should have been fixed and if it was desired to cumulate the imprisonment, the sentence should have provided the length of imprisonment on the first count and on the second count and provided the term of imprisonment under the second count should begin at the expiration of the term under the first count.

The cause is reversed and remanded with directions to the County Court to enter up a judgment on the verdict, no judgment appearing in the record, and if sentence is imposed to impose it in accordance with the views herein expressed.

Reversed and remanded with directions.


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    Charles F. Miller, Appellant, v. Thomas Moffat et al., Appellees.
    1. Conteacts—what essential to validity. A contract to be binding and enforceable must at its inception have absolute mutuality.
    2. Conteacts—what supplies want of mutuality. Where a party not bound to perform under the terms of a unilateral agreement, within a reasonable time performs, or begins to do the thing in a way which binds him to complete it, this supplies the want of mutuality and is a sufficient consideration to support the promise of the other party.
    3. Chanceby—jurisdiction to cancel unilateral contract. Chancery has jurisdiction to cancel a contract void at its inception for want of mutuality, if such contract has not become mutual by performance or part performance.
    Bill in equity. Appeal from the Circuit Court of Randolph county; the Hon. Louis Bebnbeuteb, Judge, presiding.
    Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed February 11, 1910.
    H. Clay Horner, for appellant.
    William M. Schuwerk and A. E. Crisler, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

Appellant filed an amended bill in equity for the cancellation of what he claimed to he a unilateral agreement entered into with appellee, Thomas Moffat, and by him assigned to appellee, Moffat Coal Company.

The bill alleges that on October 27, 1903, the appellant and appellee, Thomas Moffat, executed an agreement in words and figures as follows:

“This agreement and lease entered into this 27th day of October, 1903, by and between Charles F. Miller of the city of Sparta, the County of Randolph and State of Illinois, party of the first part, and Thomas Moffat, of Sparta, in the same County and State, party of the second part, Witnesseth:—

That the said Charles F. Miller, party of the first part, for the consideration hereinafter mentioned to be performed by the party of the second part, agrees that the said Thomas Moffat, party of the second part, may mine and remove coal from under the following described real estate: The west half (W. 1/2) of the northwest quarter (N. W. 1/4) of section sixteen (16), township five (5) south, range five (5) west of the principal meridian, containing eighty (80) acres, provided however, said right and privilege shall not extend for a longer period than fifty years from the date hereof; and for the purpose of mining the said coal from said land, the said party of the second part may have and use sufficient of the surface of the said land for the necessary airshafts, pump house, etc., at such place as may hereafter be agreed on, or may be designated by the party of the second part, and also the right and privilege to the party of the second part, to use such entries and ways through and underneath said surface as may be made and opened for mining purposes, for the use of mining, working and transferring coal, mined from other adjoining lands not herein described or leased.

“And the said party of the second part in consideration of the premises, as above set forth, doth hereby agree to keep correct account of all coal mined and removed from said land, and render a true monthly statement thereof to the party of the first part, on the 10th day of each month for the preceding month, and agree to pay the said party of the first part on the 20th day of the same month and monthly on the 20th day of each month during the time said mine may be operated and coal mined and removed therefrom, two and one half (2-1/2) cents per ton for each ton of coal that may be mined and removed from such mine.

“It is further agreed expressly by and between them, the parties hereto, that if default be made in the payment of any of the amounts of money due for coal taken from said premises, or any part thereof, will appear in 90 days after the same becomes due, or if the said party of the second part fail to observe and keep any of the covenants and agreements above mentioned, then this agreement at the option of the said party of the first part, shall immediately become null and void.

“It is further agreed that at the expiration of 50 years above mentioned, and upon payment of all sums that may be due from the said party of the second part to the party of the first part, then the party of the second part may remove from the said premises any and all of his machinery and property, and shall deliver the possession of the said premises to the party of the first part without further notice.

“It is further agreed that this instrument and agreement shall be binding on the said parties of the first part and second parts, their heirs, executors, administrators and assigns.

“In witness whereof the said parties have hereunto set their hands and seals, in duplicate, the day and year first above mentioned.

“Charles F. Miller, [Seal]

“Party of the first part.

“Thos. Moffat,

“Party of the second part.

“In presence of T. F. Alexander.”

It was further averred that after the execution of the agreement Thomas Moffat voluntarily advanced to appellant the sum of $100 to be applied on the royalty for coal mined under the agreement when it should be mined; that Thomas Moffat afterwards assigned the agreement to the appellee coal company and that Thomas Moffat nor his said assignee had at any time since the execution of the instrument taken any steps toward mining coal under said lands or under any other of appellant’s land. That neither of the appellees had paid any taxes on the said land, the same having all been paid by appellant. That nothing whatever had been done by appellees toward carrying out said agreement and that appellant under the terms of said agreement was powerless to compel appellees or either of them to do anything whatever under said agreement.

It was further averred said agreement was unilateral and revocable at appellant’s pleasure; that appellant before filing his bill had served notice upon appellee coal company that he had elected to revoke and annul said agreement and that at the same time he had tendered to said coal company the said $100 so advanced. Appellant further averred he brought the same into court offering to deposit it with the court and to pay interest on the same if the court should so direct. The bill prayed a cancellation of the agreement and that it be declared null and void and for other and further relief. A general demurrer was sustained to the bill and appellant electing to stand by it, the bill was dismissed for want of equity and a judgment for costs entered against appellant from which he appealed.

It will be noticed upon reading the agreement above recited that appellee Moffat does not undertake nor is he required by its terms to mine any coal whatever during the life of the agreement. If any coal is mined under the contract he must pay as a royalty for such coal, two and one-half cents per ton for the coal mined monthly, but as he does not agree to mine any definite quantity or any quantity whatever, he is not bound to do so.

It is an elementary principle of the law óf contracts that if one party to a contract is under no obligation to perform at all the contract is void, A contract to be binding and enforceable must have at its inception, absolute mutuality. Chitty on Contracts, 13; Addison on Contracts, Vol. 1 sec. 18; Bishop on Contracts, sec. 429; Cortelyou v. Barnsdall, 236 Ill. 138.

“A promise for a promise is not a good consideration unless there is mutuality so that each party may hold the other to the performance of his engagement.” Plumb v. Campbell, 129 Ill. 101.

“In case of a unilateral contract the party making the promise is bound to nothing unless the promisee within a reasonable time engages to do so or else does, or begins to do the thing which is the consideration of the first promise. Until such engagement or such doing, the promisor may withdraw his promise because there is no mutuality and therefore no consideration for it.” Plumb v. Campbell, supra.

We are of opinion this agreement was void at its inception for want of mutuality. It is claimed by appellees that the authorities relied on by appellant refer-to oil and gas contracts and such contracts are to be distinguished from contracts for the removal of coal or other solid minerals. Where the question involved is the alleged want of mutuality as it is here, the subject-matter of the contract is immaterial.

The amended bill avers as may be observed, that appellee Moffat after the execution of the contract voluntarily advanced to appellant the sum of $100 to be applied on the royalty for coal mined under the agreement, when so mined; and further that neither said Moffat nor his assignee had ever mined or attempted to mine any coal from said lands. That no shaft had been sunk or started and no entry driven into or near said coal of appellant. Appellant further avers he brings the said sum so paid to him into court and tenders it back to said corporation or brings it into court to be disposed of as the court may deem proper.

It is argued that by so accepting the $100 the appellant bound himself by the terms of the contract and appellee Moffat also bound himself in the same way.

Where a party not bound to perform under the terms of a unilateral agreement within a reasonable time performs, or begins to do the thing in a way which binds him to complete it, this supplies the want of mutuality and is a sufficient consideration to support the promise of the other party. Plumb v. Campbell, supra; Corbett v. Cronkhite, 239 Ill. 9, 16.

We are of opinion there is no averment in appel-v lant’s bill that shows performance, or a beginning to: perform on the part of appellees which would bind them to do anything in the way of performance; that is, the mining of coal from the land described. The' material purpose and object of the agreement so far as appellant was concerned was the mining of coal and the payment of the royalty which as has been shown appellees were not bound to do, and the payment of the sum of $100 was no payment of royalty for coal mined. No coal had been mined and no royalty was due and such payment was in no wise part performance of the agreement on the part of appellees. The agreement called, not for such pajment, but for the payment of two and one-half cents per ton for coal mined.

The right of appellant to resort to equity to cancel a contract void at its inception for want of mutuality and which had not become mutual by performance, or by part performance in a way which would bind appellees to complete it, seems to be well established. Cortelyou et al. v. Bardsdall et al., 236 Ill. 138.

We are of opinion the court erred in sustaining the demurrer, dismissing the bill, and rendering judgment against appellant for costs.

The judgment is reversed and the cause remanded with directions to overrule the demurrer.

jReversed and remanded.


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    Josephine Crain Sanders, Appellant, v. Grand Lodge A. O. U. W. of Illinois et al., Appellees.
    1. Fraternal benefit societies—who ineligible as beneficiary. A brother-in-law of a member is not eligible as a beneficiary under a benefit certificate.
    2. Fraternal benefit societies-twTio takes fund in absence of designation of eligible beneficiary. In the absence of the designation of an eligible beneficiary in the certificate issued by a fraternal benefit society, the fund passes to the heirs at law and next of kin of the member.
    3. Fraternal benefit societies—who may question eligibility of beneficiary. The right to question the eligibility of a beneficiary does not rest in the society alone but such question can be urged by the heirs at law of the deceased member.
    4. Pleading—when offer to do equity not essential to relief. Relief may be awarded notwithstanding the complainant or petitioner has not offered to do equity, the court having the power by its decree to compel the doing of equity by such complainant or petitioner.
    Bill of interpleader. Appeal from the Circuit Court of Alexander county; the Hon. -W. N. Butler, Judge, presiding.
    Heard in this court at the October term, 1909.
    Reversed and remanded with directions.
    Opinion filed February 11, 1910.
    Gordon & Detrich, for appellant.
    Angus Leek, for appellees.
   Mr. Justice Shirley

delivered the opinion of the court.

On August 8, 1907, appellee, Grand Lodge A. O. U. W., hereinafter called the complainant, filed its bill of interpleader in the Circuit Court of Alexander county alleging that on April 5, 1895, it issued its certificate of membership for the sum of $2,000 on the life of one Joseph C. Crain, payable upon his death to his wife Josephine Crain; that on June 23, 1906, Joseph C. Crain requested it to revoke said certificate and directed it in writing to issue a new certificate of membership on his life payable to his brother-in-law, appellee, John T. Ehlman, in lieu of said former certificate and that in compliance with snch request, it did, on July 11, 1906, issue a new certificate on the life of said Joseph C. Crain for said sum payable to appellee Ehlman; that said Joseph C. Crain died September 29, 1906; that since said death of Crain there had come into the possession of said complainant for distribution the sum of $2,000 which it held for the use of such beneficiaries as might be entitled thereto; that appellee Ehlman and one Josephine Crain Sanders, claiming to be a daughter of Joseph C. Crain, each had made claim to the fund and demanded payment, and that being willing to pay said sum to the person lawfully entitled thereto, it offered to bring the same into court.

The bill prayed that said parties so claiming the fund interplead and adjust their demands and that said complainant association be permitted to bring into court and pay said sum to such person as might be found entitled thereto less its costs for filing said bill.

Appellant, Josephine Crain Sanders, and appellee, Ehlman, separately answered the bill each claiming the fund, while one Eachel Fisher filed an intervening petition alleging she had paid dues and assessments which had accrued on the first certificate of membership issued by said association on the • life of said Joseph C. Crain for the first seven years after the same was issued and asking that an account be taken of the amounts so paid by her and that the amount found to be due her upon taking the account, together with legal interest, be decreed to be paid her out of said fund. Answers with replications thereto were filed, evidence heard, and the court rendered a decree finding appellee Ehlman entitled to the fund after allowing the association the sum of fifty dollars for a solicitor’s fee for filing its bill of interpleader.

Appellant, Josephine Crain Sanders, prayed an appeal to this court and filed her appeal bond within the required time, but it is claimed by appellee Ehlman that she never presented a certificate of evidence to the trial judge and that none is certified and sealed by him.

An examination of the transcript of the record shows it contains what purports to have been all the evidence offered in the cause by both plaintiff and defendant. Immediately following what purports to be all such evidence, appears the following: “Geo. W. Ballard, Reporter” and beneath this the following: “Approved Wm. N. Butler, Judge, April 5, 1909.” The words “Geo. W. Ballard, Reporter” are mere surplusage and may be rejected as such, and we think the signature of the judge attached to the purported evidence a sufficient certificate by him. No seal is attached to the signature of the judge but that is not required since the act of 1907. We are of opinion the evidence having been signed by the judge is sufficiently authenticated without a seal. Session Laws, 1907, paragraph 81, page 459. We also are of opinion that it is sufficiently certified that it contains all the evidence in the case.

There was no conflict in the evidence. It appears that Joseph C. Crain in the year 1878, intermarried with Maggie Pfiffer and after the marriage and during wedlock, Josephine Crain Sanders was born, she being the only child of that marriage, and the only surviving child of Joseph C. Crain. The mother, Maggie, died when the daughter Josephine was about two years of age. Joseph C. Crain afterwards remarried Josephine Fisher who died June 14, 1906, leaving no child or children or descendants. Joseph C. Crain did not again marry. The daughter Josephine after her mother’s death, was reared by an aunt with whom she lived until she intermarried with one Sanders. The father contributed scarcely anything toward her support and nothing at all after the mother’s death. He showed towards her none of the feelings or concern of a father.

On April 15, 1895, Joseph C. Crain became a memher of complainant’s asociation taking a certificate of membersMp on his life for the sum of $2,000 payable at his death to his then wife, Josephine Crain. His membership under this certificate continued by the payment of dues and assessments until after the death of his wife Josephine and until July 11, 1906, when he surrendered said certificate of membership and it was cancelled at his request by complainant and another certificate of membership for the like sum was issued upon his life, and upon his request payable to the appellee, John F. Ehlman, who paid all dues and assessments accruing on said last mentioned certificate until the death of Joseph C. Crain, on September 29, 1906. Crain never paid any of the dues or assessments accruing on either certificate, Rachel Fisher, the mother of his wife Josephine, having paid them on the first certificate to the amount of $301. The amount paid by appellee Ehlman in dues upon the first certificate was the sum of $178.35 and on the second certificate the sum of $13.35 and he also paid the funeral expenses of Crain amounting to the sum of $225.95.

The beneficiary certificate had this provision: “This certificate is issued subject to and is to be construed and controlled by the laws of the order as they are or as they may hereafter be changed or amended which together with the application are hereby made a part hereof.”

The following sections constituted a part of the constitution and by-laws:

“Section 61. Each member shall designate the person or persons, to whom the beneficiary fund due at his death shall be paid.
“Section 62. The beneficiary together with his or her relations, to the member, (shall be named in the beneficiary certificate) and shall be confined to the wife, children, affianced wife, blood relatives of, or a person or persons dependent upon him. In case the beneficiary is described in the application as a dependent, written evidence of the dependency must be furnished to the satisfaction of the Grand Recorder before the beneficiary certificate can be issued. In no instance shall a divorced wife remain a beneficiary after being divorced.
“Section 63. No entry shall be made in any application or beneficiary certificate, or otherwise, permitting the designation by, or ascertainment by reference to any will of the person or persons, trustees, or beneficiary, to whom any benefit shall be. payable, or the amount, or share of any beneficiary. No will shall be permitted to control the appointment or distribution of, or right of any person to any benefit payable by this Order.
“A beneficiary certificate cannot be made payable to a creditor nor be held whole or in part, or assigned to secure,, any debt which may be owing by the member. An assignment of a beneficiary certificate by any member or beneficiary shall be void.
“Section 64. Any member holding a beneficiary certificate desiring at any time to make a new direction as to its payment, may do so by authorizing such change in writing on the back of his certificate in the form prescribed, attested by the Recorder with the seal of the Lodge attached, and by the payment to the Grand Lodge of the sum of fifty cents but no change of direction shall be valid, or have any binding force or effect, unless said change shall have been reported to the Grand Recorder, the old certificate if practicable, filed with him, and a new beneficiary certificate issued thereon, and said new certificate shall be numbered the same as the old certificate provided however, should it be impracticable for the Recorder to witness the change desired by the brother,8 attestation may be made by a Notary Public or an officer' of any Court of Record, seal to be attached in attest.
“If one or more of the beneficiaries, designated by the member while living, shall die before the decease of such member, and no new designation having been made in accordance with the laws of the order, the surviving beneficiaries shall be entitled to the share of such beneficiary or beneficiaries, share and share alike, unless otherwise provided for in the certificate; and if all the beneficaries shall die during the lifetime of the member, and he shall have made no other direction, or in case of a failure to make a designation in accordance with the laws of the Order by the member while living, the benefits shall be paid to his widow, if he leaves one at the time of his death; if he leaves no widow surviving him, then said benefit shall be paid, share and share alike to his children; his grandchildren living at the time of his death to take the share to which their deceased parents would have been entitled if living; if there be no children or grandchildren of the deceased member living at the time of his death, then the benefit shall be paid to his mother if living, and if she be dead at the time of his death, then to his father if living, and if he be dead at the time of his death, then to his heirs, in accordance with the laws of the state of Illinois, and should the're be no one living at the time of the death of the member entitled to said benefit, under the provisions hereof, then the same shall revert to the beneficiary Fund of the Grand Lodge. ’ ’

The act of 1893 under which complainant is now authorized to do business, authorizes benefit societies to issue certificates for the benefit only of the family, heirs, blood relations, affianced husband or affianced wife, or to persons dependent upon the member. Hurd’s Statutes, 1901, chap. 73, sec. 253. Section 62 of the Constitution and by-laws above recited confines the beneficaries to the same classes.

Appellee Ehlman being a brother-in-law and not of the family, heirs or blood relations, of Crain, and not being dependent ujpon him, came within none of the authorized classes and was not entitled to the fund as beneficiary.

“A person who does not come within any of the designated classes of eligible beneficiaries at the time of the death of the member, cannot take as beneficiary.” Murphy v. Nowak, 223 Ill. 301.

A member cannot direct the fund to be paid to a person who does not come within such classes, nor can the association create a fund for any persons other than those coming within the classes specified. “Neither the act of a member in naming a person who is not within the classes to be benefited nor the act of the corporation in making the certificate which it issues payable to such person, can deprive the beneficiaries designated by the law of their right to or interest in the fund. The designation of any one not within such class is void.” Alexander v. Parker, 144 id. 355; Baldwin v. Begley et al., 185 id. 180.

Appellant, Josephine Crain Sanders, as surviving daughter was the only child of Joseph C. Crain, and being within a class specified and no beneficiary being-designated authorized to take, she is entitled to the fund. Baldwin v. Begley, supra; Alexander v. Parker, supra; Palmer v. Welch, 132 id. 141.

It is urged by appellee Ehlmafi that no one but the complainant society can raise the question that he does not come within an authorized class of beneficiaries, and by filing its bill of interpleader the complainant has waived such right and it is contended appellant cannot raise the question. We think the law is clearly against this contention. Baldwin v. Begley, supra; Alexander v. Parker, supra; Palmer v. Welch, 132 Ill. 141; Royal Arcanum v. McKnight, 238 id. 349.

It is further insisted that appellant should have, as a prerequisite to the equitable relief prayed by her, offered to refund to Bachel Fisher and appellee Ehlman the several sums paid by them as dues and assessments upon the old certificates. Whether she offered it or not, if there was any equitable right to have it repaid from the fund it should and could have been so ordered under the pleadings and evidence. We .apprecíate the moral sense of obligation that might actuate appellant to offer to repay this money and we have carefully considered whether she is equitably bound to do so.

So far as appears from the evidence they were payments by persons who were not beneficiaries and if paid at the request of Crain would amount to creating a debt on the part of Crain whose duty it was to pay them if paid at all. By section 63 of the constitu» tion and by-laws, the fund is not subject to the debts of the certificate holder and cannot be made so. So far as the claim of Rachel Fisher is concerned, the chancellor found adversely to her claim and so decreed, from which she has not appealed, and it is binding upon her.

We are of opinion the claim of appellee Ehlman for dues and assessments paid under the old certificate does not .come within the equitable principles announced as arising in the cases of McGrew v. McGrew, 190 Ill. 604; Royal Arcanum v. Tracy, 169 id. 123, and Baldwin v. Begley, supra, and he is not entitled to have it repaid out of the fund. We think he should be refunded the amount of $13.35 paid by him as dues after he became beneficiary with five per cent interest. We are of opinion the court erred in decreeing the fund to appellee Ehlman and in not decreeing it to appellant less the sum of $50 solicitor’s fee to complainant and $13.35 with five per cent interest from the date of Grain’s death to appellee Ehlman.

The cause is reversed and remanded with directions to enter a decree ordering that said fund of $2,000 be distributed as follows: Fifty dollars to complainant for its solicitor’s fee;.$13.35 with interest at five per cent to appellee Ehlman; and the remainder to appellant, Josephine Crain Sanders.

Reversed and remanded with directions.


text:
    The People of the State of Illinois, ex rel. Maude Wilson, Appellee, v. Thurman Rhodes, Appellant.

      Bastabdy—when verdict not disturbed. A verdict in a prosecution for bastardy will not be set aside merely because the conflict of evidence involved casts a doubt as to the paternity of the child.
    Bastardy. Appeal from the Circuit Court of Clay county; the Hon. A. N. Tolliveb, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed February 11, 1910.

      Zimmerman & Rinehart, for appellant.
    T. S. Williams and J. H. Smith, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

Appellant entered his plea of not guilty to a charge of bastardy preferred by the relator, Maude Wilson, and on waiving a jury and having a trial by the court, he was found guilty and a judgment rendered on the finding. From this judgment appellant brings the case here by appeal and urges as the only ground of error, that the finding and judgment is clearly and manifestly against the weight of the evidence.

The relator, an unmarried woman, gave birth to the child of which she charges appellant with being the father on July 3, 1909. She was eighteen years of age June 4, 1909. She testifies she went to Altamont to visit her sister in September, 1908, and in that month she met the appellant on the street and became acquainted with him. She testifies that he called upon her the evening of September 17th, and on the next evening he called again, at which time the illicit intercourse began and continued frequently until the following May and that the appellant is the father of the child.

Appellant admits having intercourse with the relator frequently and continuously for several months but claims and testifies it did not begin until after October 5th, when he says he first became acquainted with her and fixes the time at about a week after relator’s sister removed from what was called the Hun-sicker place to the Tappendorff place. This removal we gather from the testimony, was the 8th or 9th of October. This, .according to appellant’s testimony, would fix the time of first intercourse with her at about October 16th. According to his own statement, however, it is possible under the recognized rule of the period of gestation, he could be the father of the child. With relator’s statement, however, that the intercourse began in September and .appellantstatement that it began October 16th, the trial judge who heard them testify is better qualified to determine the truth of their statements than we can be.

The statement of appellant that he only visited relator once at the Hunsicker place and that was the night before the removal to the Tappendorff place, is disputed by both Mr. and Mrs. Scott with whom relator lived, and who both testify that appellant was there very frequently while they lived at the Hun-sicker place.

It was claimed by appellant that the relator was having intercourse with one Weiler who testified that about a week after she moved to the Tappendorff property, he had intercourse with her and continued it almost daily until the Christmas following, and a number of letters were introduced purporting to have been written by relator to Weiler beginning in December, 1908, and running along until the following March. These letters, if genuine, show the relator to have been having intercourse with Weiler and in effect charge him with being the father of the child. Relator denies any intercourse with Weiler and denies having written the letters to him. Weiler and appellant were friends and companions and the trial court heard them and relator testify. The letters were all before that court and it was better able to judge of whether they were genuine or spurious than this court, where the original letters are not examined. Even if the statements of Weiler were true, it could only cast doubt on the paternity of the child and would not necessarily prove that appellant, having intercourse with her during the same period, was not the father.

There was sufficient evidence to fasten the paternity of the child upon the appellant and the finding and judgment of the County Court is affirmed.

Affirmed.


text:
    Edward Gorey, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Instructions—when should he accurate. If the evidence on material questions is sharply conflicting and the question of liability a close one, the jury should be accurately instructed.
    2. Instructions—when defective on question of assumed rish cured. Notwithstanding an instruction upon the issue of assumed risk may be defective, such defect may be cured by the contents of other given instructions.
    3. Instructions—when refusal .of proper, ground for reversal. If a good instruction upon a material issue is refused, a reversal will be ordered if such instruction is not substantially embodied in other given instructions.
    4. Evidence—as to what expert testimony competent. Held, that opinion evidence was competent to show that the degree of violence or the suddenness with which a train is stopped when a hose bursts depends upon the amount of air in the train.
    Action in case for personal injuries. Appeal from the Circuit Court of East St. Louis; the Hon. Mortimer Millard, Judge, presiding.
    Heard in this court at the February term, 1909.
    Reversed and remanded.
    Opinion filed February 11, 1910.
    Kramer, Kramer & Campbell and John G. Drennan, for appellant.
    Webb & Webb, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

This cause was tried on a declaration of two counts, the third count having been dismissed during the progress of the trial.

It is complained in the first count that appellant had at its yards in East St. Louis certain switching and inspection crews whose duties were to make up trains there and to examine and inspect the cars and appliances of trains and to see they were in proper repair and condition before the trains were allowed to leave the yards; that the switching crew made up a train consisting of an engine, fifty-one cars and a caboose; that the engine was equipped with a power driving wheel brake and the cars with train brakes; that attached to the floor of each of the cars lengthwise was a steel pipe on each end of which was a rubber hose; that on the ends of the hose appliances were attached so when cars were coupled, the hose could be connected forming a connected pipe or air line from the engine to the caboose; that by a compresser on the engine controlled and regulated by the engineer, air was compressed and forced through the pipe line and the speed of the train thereby controlled and regulated; that by the rules of appellant the engineer was required to maintain sufficient air in the pipe or air line to give a pressure of seventy pounds to the square inch therein for the practical and safe operation of the train and that when the train was made up the inspectors were required by the rules to have the engineer apply to the pipe or air line a sufficient volume of compressed air to give seventy pounds pressure therein to test the strength of said line and its connections.

It was further averred that appellant had a car in the train, being the fourteenth car from the engine, having as part of its pipe or air line a rubber hose which was old, cracked, rotten and insufficient to stand such test which could have been ascertained by inspection or by such test; that the inspectors, after the train was made up, negligently failed to inspect the said hose and to require the engineer to make the test aforesaid which would have determined the insufficient strength of said hose.

It was further averred appellee was employed by appellant as a brakeman and while riding on the caboose of said train with due care after it left the yards and while the train was running at a speed of ten miles an hour and while said pipe or air line was carrying a volume of air equal to seventy pounds pressure to the square inch in consequence of the failure of the inspectors to examine and inspect said hose and to subject it to the required test, the hose burst and the train became separated whereby the automatic action of the air checked the speed of the cars in front of the break having such equipment in good order as well as those in the rear having such equipment. in good order, in consequence of which the caboose upon which appellee was, and other cars immediately ahead of it that did not have such equipment in good working order, were violently and with great force allowed to collide with each other causing the caboose to violently lurch and rebound backward throwing appellee from the caboose to the ground whereby he was injured.

The second count avers the engine and fifty-one cars in the train were equipped with brakes to be operated by the application of compressed air so that if in good order and repair the speed of the train could be controlled by the engineer and so that sections and cars of the train would not violently collide with each other in the event of a separation of the train; that the practice and custom of appellant required seventy-five per centum of the cars in the train to be equipped with brakes in good repair and condition in order that the speed of the train could be controlled and regulated by the engineer with the application of compressed air to the brakes; or by the automatic action of the braking appliances and air on the brakes in the event of the separation of the train.

The breach averred is that contrary to such practice and custom said train was made up by the switching the crew and inspectors with only twenty-five per centum of the cars so equipped with brakes in good condition and repair, thereby rendering of no effect the automatic action of the appliances and air on said brakes or sections and cars of the train when separated, whereby and as a consequence of such failure of said crew and inspectors when the train separated while running at a speed of ten miles an hour the caboose upon which appellee was and the cars ahead of it which were not so equipped were allowed to run and violently collide with each other and by means of the collision the caboose was thrown upward and backward a distance of ten feet or more and appellee was thereby thrown from the caboose and injured.

A large amount of testimony was introduced, the weight of which as we view the present state of the record it is not now necessary or proper to discuss or determine.

The evidence on material questions was sharply conflicting and the question of liability was a close one. Under such circumstances the record should be free from errors in law and the ruling upon instructions given and refused should be accurate.

Numerous errors are assigned by appellant in this regard and as the case must be remanded for another trial we deem it proper to point out such errors as they occur to us so they may be obviated.

Opinion evidence was admitted by the court over appellant’s objection to show that the degree of violence or the suddenness with which a train is stopped when a hose bursts, depends upon the amount of air in the train. It is insisted this testimony is not proper expert testimony, but we are of opinion that whatever weight the testimony carried, it was admissible. It tended in some degree to show a material fact and it was upon a matter that we think does not lie within the common experience and observation of men generally in the ordinary walks of life and who are not familiar with the use of air in a train and its effect upon the train in case the air line is disrupted. Those who are by experience familiar with its use and effects are better qualified to know and understand its effects upon the train in case of a sudden bursting of the hose than those not familiar with it and to that extent the evidence was admissible, but to permit such witness to testify that a person upon the train would not be thrown down in case of such bursting if seventy-five per cent of the cars had been equipped with air in good working order was not we think a subject for expert testimony; whether a man would be thrown or not may depend upon many other conditions than those resulting from the bursting of the hose under any given condition.

Upon examination of the opinion testimony we see no substantial objection except as above pointed out. Criticism is made of the third, fourth and fifth instructions given on behalf of appellee. The third instruction tells the jury that if appellee has proved his case as alleged in either count of his declaration and was guilty of no negligence at or immediately before his injury contributing thereto and did not assume the risk of injury while assisting in the operation of the train, the jury should find for appellee.

The objection urged is that the first count of the declaration does not allege that appellee did not know the inspection had not been made and alleges only that appellee had no notice of the condition of the hose and that the second count does not allege that appellee did not know and that by reasonable care he could not have known that seventy-five per cent of the cars were not equipped with air in good working order and condition and that the instruction does not in any way negative these propositions that he did not know or by the exercise of care could not have known of these defects; and that that portion of the instruction that if the jury believed he did not assume the risk, is not sufficient to cover these points. In the absence of an instruction defining the assumption of risk we think the instruction in this respect is defective but on examination of the whole series, the assumption of risk in this regard seems to be defined sufficiently in the several instructions given on behalf of appellant to cover these points. What has been said with reference to the third instruction applies to the fourth and fifth complained of.

The court refused the following instruction asked by appellant:

“The court instructs the jury that even if you believe from the evidence that seventy-five per cent of the cars in the train in question were not equipped with air brakes in good working order, yet the plaintiff cannot recover under the second count of his second amended declaration unless you believe that such failure to have seventy-five per cent of said cars in said train equipped with air brakes in good working order was the direct and proximate cause of the injury received by plaintiff.”

It is argued that the fifth instruction given for appellant stated the same principle. It was as follows:

“The court instructs the jury that if you believe from the evidence that seventy-five per cent of the cars in question were equipped with power or train brakes in good working order or repair when the train in question left its starting point at Bast St. Louis then the plaintiff cannot recover under the second count of his second amended declaration.”

It is apparent from reading these instructions the proposition contained in the refused instruction is not embraced by the latter one. By the second count of the declaration if seventy-five per cent of the cars were equipped with air in working order, appellee could not recover without regard to the question of proximate cause and the latter instruction is based on that proposition. By the refused instruction although they were not so equipped, unless that failure was the proximate cause of the injury, appellee could not recover under that count.

There was no other instruction covering the refused instruction and as it was material, it was error to refuse it.

Wé think there was no substantial error in the court ruling on special' interrogatories asked and given. After a careful examination of this record, we have pointed out the material errors which may be obviated in another trial as they occur to us, and for the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.