text:
    C. B. Ensign, Plaintiff in Error, v. Illinois Central Railroad Company, Defendant in Error.
    Gen. No. 17,369.
    1. Cashiers—when not liable for failure to deliver to one who holds bill of lading. Where a carrier receives a shipment of coal from a party who is both consignor and consignee, and the bills of lading do not specify that the coal shall not be delivered without their production and contain no words of negotiability, the carrier on delivery of the coal to one who has diversion orders from the consignee, is not liable to one who receives the bills of lading as security for a loan to enable the one to whom the coal was delivered to pay for it.
    2. Bills of lading—when carrier may deliver without requiring production. In the absence of a statutory requirement, or an agreement in the bill of lading, that the goods shall not be delivered without its production, the carrier may legally "deliver a shipment that is billed straight to the consignee, without requiring production of the bill of lading.
    3. Carriers—consignee presumably the owner. The consignee is presumably the owner of the goods and is entitled to demand a delivery of them subject only to the rights of stoppage in transitu, and the carrier may safely deliver to him provided it has no notice of a better right in favor of an adverse claimant.
    4. Bill of lading—effect of transfer. A bill of lading is not negotiable like a bill of exchange, but is a symbol or representative of the goods themselves; and the rights arising out of its transfer do not correspond to those arising out of the indorsement of a negotiable promise for the payment of money, but to those arising out of a delivery of the property itself under similar circumstances.
    5. Bill of lading—as symbol of property and contract of transportation. A hill of lading is both the symbol of the property and evidence of the carrier’s contract to transport it; as the former, it may be transferred; but as the latter, it is a chose in action and as such it is not at common law assignable.
    6. Practice—effect of section IS of the Practice Act. The rights of an assignee of a non-negotiable instrument under section 18 of the Practice Act are not greater than they were at common law except that he may sue in his own name.
    7. Carriers—duty to deliver goods to true owner. A carrier is hound to deliver goods to the true owner or to one legally entitled to the possession thereof if the carrier has due notice of such rights before it delivers to the consignee or to his order without the hill of lading.
    8. Bills of lading—duty of assignee to notify carrier. The assignee of a hill of lading must give prompt notice of his rights to the carrier before the goods are delivered by it to another, if he desires to hold the carrier for a conversion of his property.
    9. Bills of lading—how transferred. A hill of lading is transferable by indorsement and delivery and transfers to the indorsee or holder such rights to, or property in the goods, as it was the intention of the parties, gathered from all the circumstances to pass.
    10. Carriers—burden of proof. Where plaintiff, the assignee of the bill of lading for a shipment .of coal, sues defendant carrier for damages resulting from its failure to deliver the coal to him, the burden of proof rests with plaintiff to prove notice to defendant of his rights to possession of the coal before delivery to a third party at the order of consignee.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed May 21, 1913.

      Francis S. Wilson, for plaintiff in error.
    Vernon W. Foster, for defendant in error; John G. Drennan and Walter S. Horton, of counsel.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

C. B. Ensign, plaintiff in error, sued the Illinois Central Railroad Company, defendant in error, and Zeigler Coal Company, to recover the sum of $700 as damages for their failure to deliver to him four cars of coal. In a trial before the court without a jury, judgment was rendered in favor of defendant in error after plaintiff in error had taken a nonsuit as to the coal company.

The facts are that said four cars of coal were consigned by the Zeigler. Coal Company, at Zeigler, Illinois, to itself at Chicago, Illinois, via the defendant in error’s railroad, from March 20th to March 23rd, 1906. The coal company received four bills of lading from the defendant in error for the four cars of coal, in which the Zeigler Coal Company was named as consignee without any qualifying words, “or order,” “or assigns,” or other words of similar import. The freight on the coal was collected from said coal company by the railroad company. On March 27, 1906, the Zeigler Coal Company sold the four cars of coal in question to the Merchants Coal Company. Plaintiff, in error on said last date arranged to loan one Hiland, under the name of Merchants Coal Company, the sum of $359.23, the purchase price of said coal, but the note of plaintiff in error, a thirty day note, was signed by Hiland, “Franklin County Coal Company.” The Zeigler Coal Company then indorsed the four bills of lading as follows: “Deliver Merchants Coal Company or order, Zeigler Coal Company.” An agent of the Zeigler Coal Company then went to the office of Hiland and then to the office of plaintiff in error to get the money for the coal which he was advancing to Hiland to enable him to buy it. The agent refused to accept the check of plaintiff in error for said amount until it was certified, and thereupon plaintiff in error gave his check to the coal company’s agent and directed him to get it certified and bring back to him the bills of lading. The agent of the coal company got the check certified by the bank, and delivered the bills of lading to an agent of Hiland. At the same time the Zeigler Coal Company made out and delivered to Hiland’s agent diversion orders to the agent of defendant in error, directing it to forward the four cars of coal to the Franklin County Coal Company by delivering the cars to the Chicago Terminal Transfer Bailroad Company at Biverdale, Illinois, twenty miles from Chicago. No one represented the defendant in error in these transactions. Hiland afterwards on the same day delivered to plaintiff in error the said bills of lading endorsed in blank by the Merchants Coal Company, but did not deliver to him the diversion orders. Hiland transacted his business in the name of both Coal Companies, Merchants Coal Company and Franklin County Coal Company, apparently using the one or the other name indiscriminately, as suited his pleasure or convenience. The diversion orders were on March 31, 1906, delivered to the agent of the defendant in error by a representative of the Franklin County Coal Company, and the cars of coal were delivered, as therein directed, by defendant in error without the production of the bills of lading, three cars at 10:50 a. m., April 3, 1906, and the other car at 8:20 a. m., April 4, 1906.

Plaintiff in error first contends that as he was the bona fide holder and assignee of the four bills of lading for value, as above set forth, the defendant in error was bound to deliver to Mm or to his order the four cars of coal in question on production to it of said bills of lading, as evidence of his right, and that after said bills of lading were assigned by the Zeigler Coal Company and delivered to him the defendant in error could not legally deliver the coal to the order of the Zeigler Coal Company without requiring the production of the bills of lading evidencing the right of the coal company to order such delivery. The bills of lading in question did not specify that the coal should not be delivered without their production, and they contained no special negotiable words. The shipments were what are called “straight shipments,” every car of coal having been shipped direct to the Zeigler Coal Company without any limitation whatever. The contract of defendant in error, as set forth in the bills of lading, required it to deliver the coal to the Zeigler Coal Company and at that time the Zeigler Coal Company was the consignor and the consignee and the absolute owner of the coal. The defendant in error complied with all the requirements of its contracts with reference to the delivery of the coal, as expressed in the bills of lading, when it delivered the coal to the Franklin County Coal Company by direction of the Zeigler Coal Company. In the absence of a statutory requirement, or an agreement in the bill of lading, that the goods therein named shall not be delivered without its production, the carrier may legally deliver a shipment that is billed straight to the consignee, without requiring the production of the bill of lading. The consignee in such a case is presumably the owner of the goods and is entitled to demand a delivery of them, subject only to the rights of stoppage in transitu and the carrier may safely deliver to him, provided the carrier has no notice of a better right in favor of an adverse claimant. Nashville, C. & St. L. R. Co. v. Grayson County Nat. Bank, 100 Tex. 17; Nebraska Meal Mills v. St. Louis S. W. Ry. Co., 64 Ark. 169; Anchor Mill Co. v. Burlington, C. R. & N. Ry. Co., 102 Iowa 262; Schlesinger v. West Shore R. Co., 88 Ill. App. 273; Lake Shore & M. S. Ry. Co. v. National Live Stock Bank, 178 Ill. 506.

“A bill of lading, even when in terms running to order or assigns, is not negotiable, like a bill of exchange, but a symbol or representative of the goods themselves; and the rights arising ont of the transfer of a bill of lading correspond, not to those arising ont of the indorsement of a negotiable promise for the payment of money, but to those arising out of a delivery of the property itself under similar circumstances.” Stollenwerck v. Thatcher, 115 Mass. 224. See also Porter on Law of Bills of Lading, See. 438; Hutchinson on Carriers, vol. 1, sec. 175. A bill of lading is “both the symbol of the property which is delivered to the carrier for transportation, and evidence of the carrier’s contract to transport and deliver that property. As a symbol of property, it may be transferred, but as a contract with the carrier, it is a chose in action, and as such it is not at common law assignable. ’ ’ 2 Daniel on Negotiable Instruments, sec. 1745 a.

It is evident from said authorities that the only action, if any, that could be maintained at common law by plaintiff in error in his own name against defendant in error would be an action for the wrongful conversion of the coal, after demand made for the delivery of the coal to him. Our Supreme Court has virtually so decided in Knight v. St. Louis, I. M. & S. Ry. Co., 141 Ill. 110, in which case, after deciding that the assignee could not maintain a suit on the contract in his own name, said:

“It is difficult to see how the assignee of that express contract could ignore it, and sue upon an implied liability to carry and deliver. When it is admitted that the bills of lading are non-negotiable, it must follow that the carrier can make any defense against an alleged failure to carry according to his contract, when sued by one who has become the owner of the goods by a transfer of the bill of lading, which he could have made against the shipper himself. His duty towards the goods is fixed by the terms of his contract, no matter who may be the owner of them.”

In the absence of a statute in this state making bills of lading negotiable or requiring the carrier not to deliver the goods to any one without requiring the production of the bill of lading in such straight shipments showing his right to possession of the property, or accounting properly for the loss or want of possession thereof, we are unable to see how plaintiff in error could maintain his suit against defendant in error. Our Uniform Bills of Lading Act, approved June 5, 1911, (Session Laws 1911, p. 228), while not in force when this suit was brought, expressly declares that such bills of lading as are in question here are nonnegotiable or straight bills. While section 18 of our Practice Act allowed plaintiff in error to sue in his own name on the bills of lading on compliance with the terms of that section; yet, the statute simply declares the principles of the common law that are applicable to suits by assignees on non-negotiable instruments, and it changes the common law in no particular, except that at common law the suit on such an instrument by an assignee had to be brought in the name of the assignor. The assignee’s rights are otherwise no greater or more extended under this statute than they were at common law and are identical with the assignor’s rights under the contract at the time the debtor received notice of the assignment. No. 18943, Hibernian Banking Ass’n. v. City of Chicago, opinion filed by this court March 12, 1913, post—, and not reported.

It is true that a common carrier is bound even in case of a straight shipment to deliver the goods to the true owner or to the' one legally entitled to the possession thereof, if the carrier has due notice of such rights before he delivers to the consignee or to his order without the bill of lading. It is up to the holder, as assignee, of such a bill of lading to give prompt notice of his rights to the carrier before the goods are delivered by it to another, if he desires to hold the carrier for a conversion of his property. In this case, it does not even positively appear that plaintiff in error was legally entitled to hold the actual possession of the coal. No such an agreement with Hiland or Zeigler Coal Company is proved. The note to which the bills of lading were to stand as collateral was a thirty day note. The coal was certainly not the absolute property of plaintiff in error. It may be that the coal itself was to be held by plaintiff in error as a pledge until the note was paid or otherwise secured, but no such agreement was proved. “All broad assertions of the negotiability of the bill of lading, when examined in the light of their context and of their actual application to the very cases in which they are unguardedly made by the court, will be found equivalent merely to a statement that the bill is transferable by indorsement and delivery and that such endorsement and delivery transfers to the indorsee or holder such rights to, or property in the goods, as it was the intention of the parties, gathered from all the circumstances, to pass.” Porter on Bills of Ladling, sec. 438.

Plaintiff in error insists also that he gave notice to the defendant in error that he was the bona fide holder of the bills of lading and entitled to receive the coal in question, while the coal was in its possession about March 29, 1906, and also that he by a letter written on April 3, 1906, again notified the defendant in error that he held such bills of lading and that he would expect the coal to be-, delivered to him when it arrived in Chicago. We have examined the evidence carefully and find that it fails to establish any such notice before the coal was delivered by the defendant in error to the Franklin County Coal Company. It does not appear that the first notice spoken of was given to any one representing or authorized to represent the defendant in error as an agent or otherwise. It was simply0 given to a person unknown to plaintiff in error, and it was not even shown that the unknown person was engaged in the transaction of any business for defendant in error. The second notice by letter was not shown to have been delivered to defendant in error or posted in time for delivery to it by mail before the coal was delivered by it. The burden of proof rested with the plaintiff in error to prove notice, to defendant in error of his right to the possession of the coal before delivery thereof by it to the Franklin County Coal Company. Until such notice was served on it, defendant in error had the right under the bills of lading to deliver the coal to the order of the Zeigler Coal Company by an assignment of the bill of lading or by an assignment or order in a separate instrument.

The judgment of the lower court is, therefore, affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Baume

license: Public Domain

text:
    James P. Monahan, Administrator, Appellant, v. Metropolitan Life Insurance Company, Appellee.
    Gen. No. 17,405.
    1. Insurance—effect of incontestable clause. Where the insured dies within two years of the date of the policy, a clause providing that after two years the policy shall be incontestable except for nonpayment of premiums as stipulated or for fraud does not become operative, though notice and proof of death is presented in ample time for the company to make its election to rescind the policy for alleged breach of warranties before the expiration of the two years, since the rights and obligations of the parties under the policy become fixed by the death of the insured.
    2. Insurance—incontestable clause. The reasonable construction of a clause in an insurance policy providing that after two years the policy shall be noncontestable except for nonpayment of premiums as stipulated or for fraud is that, after the policy shall have been in force two years, or if the insured shall survive two years after the date of the policy, it shall be noncontestable.
    3. Insurance—when defendant must produce application. In an action on an insurance policy, where the defendant relies on the falsity of representations or breach of warranties that appear only in the application, which is a part of the contract of insurance, it is incumbent on defendant to produce the application and introduce it in evidence or satisfactorily to account for its nonproduction and to introduce a proven copy.
    4. Insurance—presumption as to possession of original application. The original application for an insurance policy, which is made a part of the contract, is presumed to be in the possession of the company.

      5. Insurance—proof of application. Where defendant in an action on an insurance policy relies upon the falsity of representations or breach of warranties which appear in the application only, he must allege and prove such representations or warranties and their falsity or breach.
    6. Insurance—when question as to breach of warranty for jury. Where the evidence is in conflict as to the character of the ailment, if any, with which it is claimed the insured was afflicted within two years of the date of an application for a policy, which application is part of the contract and warrants that the insured had not been under the care of a physician within two years, that question and whether the insured was in good health at the time of the application as warranted is for the jury, unless the uncontradicted credible evidence establishes breach of some other warranty or warranties which bars recovery.
    7. Insurance—warranty against other insurance. Breach of a warranty in an application for insurance that the insured has no other insurance except a policy mentioned is not established, when there is no evidence that the initial premium on another policy bearing date prior to such application was paid and that the policy was delivered to the insured prior to the date of the application in question as required by the policy to make it operative, though such other policy was in force at the death of the insured and there is testimony that it was “issued” from the office of the company before such application was made.
    Appeal from the Superior Court of Cook county; the Hon. William H. McSurely, Judge, presiding. Hoard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed May 21, 1913.
    Rehearing denied June 9, 1913.
    Samuel B. King and Jule F. Brower, for appellant.
    Hoyne, O’Connor & Irwin, for appellee; Carl J. Appell, of counsel.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit instituted January 23, 1906, in the Superior Court by appellant against appellee to recover upon a policy of life insurance for $3,000, issued to appellant’s intestate, Patrick H. Fay, on December 12, 1903. At the close of all the evidence the court instructed the jury to return a verdict finding the issues for appellee, and upon such verdict judgment was entered against appellant in bar of his action and for costs.

The declaration upon the policy is in the usual form and alleges that the insured died October 19, 1905, and that appellant was, on October 28,1905, duly appointed administrator of his estate. To this declaration appellee filed the general issue and twenty special pleas. In said special pleas appellant set up several provisions of the policy and of the application, which was made a part of the contract of insurance, and averred as grounds of forfeiture that the insured was not in good health, but was of unsound health when the policy was delivered; that his answers to questions in said application, which answers were warranted to be true, were untrue in several enumerated particulars, including the following: That he had not been under the care of any physician within two years next prior to the making of said application; and that he had no. other insurance than the policy in the declaration mentioned, except in the Boyal League for $4,000. To said special pleas appellant filed two special replications. The first special replication avers that it is provided in the policy that “after two years this policy shall be non-contestable except for the non-payment of premiums as stipulated, or for fraud;” that the policy is dated December 12, 1903, and was delivered to the insured about that date; that appellee had notice within two years after the date of the policy of the death of the insured and of the fact that appellant .claimed that appellee was liable on said policy by reason of the terms thereof, payment of premiums, and presentation of notice and proofs of death on or about October 28, 1905; that although the period between the date appellee received such notice, and the date of the expiration of two years from the date of the policy was ample time for appellee to make its election to rescind the policy for supposed breach of warranty in said pleas set forth, yet appellee gave appellant no notice within said two years that it intended to rescind or contest said policy, and appellee is, therefore, barred from claiming that the insured made or committed a breach of any or either of the supposed warranties. The second special replication further avers that appellant was duly appointed administrator of the estate of the insured on October 31, 1905; that although appellee had ample time between the date when it had notice of said claim and from the date of appellant’s appointment as such administrator and the expiration of two years from the date and delivery of said, policy, to contest the same for the supposed breaches of warranty averred in said pleas, yet appellee did not contest said policy within two years after the date and delivery thereof, etc. To these two special replications appellee interposed a general demurrer, which was sustained by the court and appellant elected to abide by his said replications.

The demurrer to the replications was properly sustained. The rights and obligations of the parties under the policy became fixed by the death of the insured. John Hancock Mut. Life Ins. Co. v. Schlink, 175 Ill. 284. As the insured died within two years after the date of the policy, the incontestable clause which provides that ‘1 after two years this policy shall be non-contestable except for the non-payment of premiums as stipulated, or for fraud,” did not become operative.

The only reasonable construction of which this clause is susceptible, is that after the policy shall have been in force two years, or if the insured shall survive two years after the date of the policy, it shall be noncontestable, etc. Kelley v. Mutual Life Ins. Co., 109 Fed. 36. While the judgment of the District Court in this case was reversed by the Circuit Court of Appeals in 114 Fed. 268, the conclusion of the District Court upon the question here involved was not adverted to or disturbed; but the judgment of the Appellate tribunal was necessarily predicated upon a holding- that the incontestable clause was not operative. The apparent holding to the contrary in Prudential Ins. Co. v. Lear, 31 App. Cas. D. C. 184, was not necessary to the decision of that case and does not accord with our view of the proper construction of the clause in question.

A copy of the application which was signed by the insured was embodied in the policy and made a part thereof. When appellant offered the policy in evidence the copy of the application was covered up and excepted from the offer. Appellee objected to the introduction of the policy as offered and insisted that appellant was bound to offer the entire document, and the court sustained such objection, and thereupon appellant offered in evidence the policy, together with the copy of the application.

Whatever the rule may be in other jurisdictions, it must be regarded as settled in this state that it is not incumbent upon the plaintiff in an action on a policy of insurance to either allege or prove such matters as appear in the application only, but that it is incumbent upon the defendant who relies upon the falsity of representations or the breach of warranties, as a defense to such action, to allege and prove such representations or warranties and their falsity or breach. Continental Life Ins. Co. v. Rogers, 119 Ill. 474.

The original application was presumably in the possession of appellee and it was incumbent upon it to produce such original application, or to satisfactorily account for its non-production, and to introduce the original application or a proven copy of the same in evidence.

By the express terms of the policy the application therefor was made a part of the contract of insurance, and the language employed in the application makes the statements and answers by the insured therein contained warranties and not representations merely, and we do not understand that appellant contends to the contrary.

Among other alleged breaches of warranty relied upon by appellee were those relating to the 4th, 6th and 12th statements made by the insured in his application, as follows:

“4. I'am now in sound health. * * * .”
“6. I have not been under the care of any physician within two years, unless as stated in previous line, except”
“12. I have no other insurance on my life, except in the following named companies and for the following amounts. And by the word 1 Company7 I mean any company, association, society, or order granting life insurance.
Boyal League $4,000.”

The preliminary application bears date November 27, 1903, and the final application upon which the policy appears to have been issued bears date November 30, 1903.

There is a conflict in the evidence as to the precise character of the ailment, if any, with which it is claimed the insured was occasionally afflicted within a period of two years prior to the date of the final application, and this question, in so far as it was material, together with the question, whether or not the insured was in good health at the date of said application, should have been submitted to the jury, unless the uncontradicted, credible evidence in the case established a breach of any other warranty or warranties, whereby a recovery upon the policy was barred.

Dr. Gideon O. Barber, a physician, called as a witness by appellee, testified that he treated the insured professionally in August, October and November, 1902, and in May, 1903. The many apparently contradictory statements made by this witness tended to depreciate the probative value of his entire testimony and the credit to be given to his testimony was primarily a question for the jury.

For the purpose of showing the untruthfulness of the 12th statement made by the insured relative to other insurance on his life, appellee offered in evidence a policy of insurance for $3,000 on the life of the insured issued by the Fidelity Mutual Life Ins. Co., bearing date September 30, 1903, and the offer of the proof was objected to, because it was not accompanied by evidence tending to show that the initial premium on said policy had actually been paid and said policy had been delivered to the insured prior to the date of the application in question, as is required by the terms of said policy in order to make it operative and binding.

It was conceded by appellant that the policy offered in evidence was in force at the death of the insured; that suit had been instituted against said company to recover the amount of said policy; and that on January 31, 1910, appellant had received the amount of said policy.

That the policy offered in evidence was dated September 30, 1903, and was in force at the death of the insured on October 19, 1905, did not conclusively establish the fact that it was an operative and binding contract on September 30, 1903.

Appellee attempted to show that said policy became an operative and binding contract on September 30, 1903, by the testimony of a witness that it was “issued” on that date from the office of the company in Philadelphia, but this was not sufficient. Such proof alone, if it tended to show anything, tended to show that the policy was not then delivered to the insured in Chicago.

The facts upon that issue are, doubtless, susceptible of being established by competent and sufficient evidence, and if and when it is so established that the policy of the Fidelity Mutual Life Insurance Company upon the life of the insured was an operative and binding contract on September 30, 1903, a breach of warranty by the insured in respect to the policy here involved will have been shown and a recovery thereon thereby precluded.

Upon the proof, as made, the peremptory instruction was improperly given to the jury and the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Mary Hanley, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 17,485.
    1. Carriers—sudden start. A verdict for plaintiff based on the sudden starting of a car from which she was alighting, is against the weight of the evidence where plaintiff and two boys testify that the car stopped and was started while she- was alighting but such boys appear to have slight comprehension of the nature of an oath and their knowledge of the situation is vague and indefinite, and eight adults, six of whom appear to be disinterested, testify that plaintiff attempted to alight while the car was moving.
    2. Evidence—how preponderance determined. While in determining where the preponderance of the evidence lies the testimony of witnesses is to be weighed and the preponderance determined by the weight rather than by counting the witnesses and striking a numerical balance, yet the number of witnesses is not to be ignored as an element, and where the opportunity of several witnesses to observe the facts as to which they testify is equal and they stand on an equal plane as to credibility in other respects the element of number is controlling.
    3. Evidence—when proper to permit evidence that cars often, stopped at place of accident. Where plaintiff was injured while alighting from a north-bound car, which she alleges stopped on the south side of a street and started while she was alighting, though it regularly stopped on the north side thereof, it is proper to permit plaintiff to show that north-bound cars were stopped on the south side of such street opposite a park entrance during the season to accommodate persons who frequented such park.

      4. Evidence—as to pain suffered, by plaintiff in action for injuries. In an action for personal injuries, it is competent for a witness to state that on the day following the injury plaintiff seemed to be suffering pain, but a statement that she complained of having pain is incompetent.
    5. Evidence—when question in its general form properly excluded. An objection to a question put to a medical expert in an action for personal injuries as to whether he had “testified in any other case this week than this one’’ should be sustained to such question in its general form.
    6. Evidence—competency. Objection should be sustained to questions to determine the competency of a witness which merely involve his religious training.
    Appeal from the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed May 21, 1913.
    B. F. Richolson and A. C. Wild, for appellant; Leonard A. Busby, of counsel.
    C. E. Heckler and I. W. Baker, for appellee; Charles W. Lamborn, of counsel.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit by appellee against appellant to recover damages for personal injuries, alleged to have been occasioned by the negligence of appellant, wherein a trial in the Superior Court resulted in a verdict and judgment against appellant for $1,500.

The declaration contains two counts. The first count charges that the car upon which appellant was a passenger was caused and permitted to jar, jerk and start forward from a stationary position, while appellee, in the exercise of due care for her own safety, was in the act of alighting therefrom. The second count charges that the car was caused or permitted to jar, jerk and start suddenly forward at a greatly accelerated rate of speed from a slowly moving position while appellee was in the act of alighting therefrom.

The evidence introduced on behalf of appellee tended to show a right of recovery under the first count of the declaration alone, and such evidence is relied upon by appellee to support an affirmance of the judgment in this court.

The main contention of appellant is that the verdict is contrary to the manifest weight of the evidence.

Appellee testified that shortly after nine o’clock on the night of June 13,1909, she boarded a north-bound Halsted street car at 63rd street for the purpose of being carried to 52nd street near which street she resided; that when she entered the car the seats were occupied and she remained standing until the car reached 59th street, where she secured a seat; that between 53rd and 52nd streets the conductor, who was on the rear platform, called out, “52nd street;” that the car was then running slowly, as there was another north-bound car ahead of the car in which she was riding; that she pressed the electric signal button and walked to the rear platform; that as she stood on the platform facing east the conductor was standing on the platform at her right and south of her; that when the car came to a stop on the south side of 52nd street, it remained stationary four or five seconds during which time she stepped from the plaform to the step and was in the act of stepping from the step to the street when the car suddenly started forward and she was thereby thrown down and injured. On her direct examination appellee testified that while she was standing upon the platform and attempting to alight therefrom the conductor did not say anything to her, but on cross-examination she testified that when the car came to a stop she asked the conductor if she couldn’t get off and he said she could. She further testified that she frequently rode as a passenger on the north-bound Halsted street cars, and that while the regular stopping place for said cars was on the north side of 52nd street, said cars frequently stopped on the south side of said street to receive and discharge passengers.

The evidence discloses that at the time in question a place of amusement, known as Luna Park, was being operated on the south west corner of Halsted and 52nd streets and that the main entrance to said park was on the west side of Halsted street about seventy-five feet south of 52nd street; and it was claimed by appellee that the purpose of stopping cars on the south side of 52nd street was to accommodate the patrons of Luna Park.

George H. Gale, who was employed at the Park in the capacity of a musical megaphone operator, testified on behalf of appellee that at the time of the accident, he was standing on the outside of the sidewalk on the west side of Halsted street near the main entrance to the park; that he saw a north-bound car stop at the north east corner of 52nd and Halsted streets and saw the car in which appellee was a passenger following it up closely; that the last named car stopped on the south edge of 52nd street so it would not block up that street; that when the car stopped he sáw appellee and the conductor on the rear platform; that the car was started up just as appellee went to get off, and she fell off and the car went on across the street; that when she fell appellee was just stepping off the car; that he had no previous acquaintance with appellee.

Albert J. Connor, who was ten and one-half years of age at the time appellee was injured, testified that, he was then standing on the east side of Halsted street looking at the sights at Luna Park; that he saw two cars, one on the north side of 52nd street and one on the south side of said street, and saw appellee on the platform of the rear car; that she was going to get off and just as soon as she was going to put her foot on the ground the car started and she fell on her face.

Joseph Pickett, who was about thirteen and one-half years of age at the time of the accident, testified that just as he was going up stairs to a chop suey place on the east side of Halsted street, a short distance south of 52nd street, he looked back and saw a car standing on the north east corner of said streets, and also saw the car on which appellee was riding which had been going slowly and which stopped south of 52nd street; that he saw appellee on the platform; that when the car was standing still appellee started to get off, and when she was just getting off, it started again and she fell right out forward on her face; that the car in which appellee was riding started forward as soon as the car in front of it started forward.

The testimony of the witness, Gale, discloses that he was voluble in his ■ indulgence in exaggeration. In view of the fact that he was standing on the west side of Halsted street when the car approached from the south, and that the doors on the west side of the platform were closed, his statement that at that hour of the night he saw appellee and the conductor standing on the platform and observed appellee as she stepped off the east side of the platform and fell upon the street, taxes our credulity.

The witnesses, Connor and Pickett, appear to have had but slight comprehension of the nature of an oath, and a careful .examination of their testimony discloses that their purported knowledge of the situation was vague and indefinite, and suggests that their statements wére prompted by an innocent desire to aid appellee.

Nine witnesses, including the conductor and the motorman, testified on behalf of appellant with reference to the operation and movements of the car and the conduct of appellee at the time she was injured.

Harry R. Kempster, Joseph Keller, and John Serbeck, adult passengers upon the car, who were apparently disinterested, testified that they were standing on the rear platform as the car approached 52nd street, and when appellee came onto the platform for the purpose of alighting from the car; that as the car approached the crossing’, its speed slackened to about four or five miles an hour, and that while the car was running at that speed appellee attempted to alight from the car and fell upon the street; that they did not hear appellee say anything to the conductor before she attempted to alight, and that the conductor said nothing to her; that the car did not come to a stop until after appellee had fallen therefrom. The motorman, Boy W. Chezem, corroborated the last named witnesses as to the operation and movements of the car, and the conductor, Jones, further testified that after appellee fell off, he gave the emergency stop signal and while the car was slowing down he jumped off and went to appellee’s assistance.

Mary McDowell testified that she, with her husband, was standing on the east side of Halsted street south of 52nd street, and saw the car coining along pretty slowly and saw appellee as she dropped to the pavement; that the car was going very slowly at the time and that so far as she noticed the car had not made any stop at or near 52nd street before appellee fell.

Wilhelmina Schraeder testified that, as she was walking south on Halsted street, she stopped at the corner of 52nd street; that she saw the car moving slowly and saw appellee drop out of the car while the car was moving; that she did not know whether the car had stopped before she saw appellee fall.

Bennie Steffens, who was eleven and one-half years of age at the time in question, testified that he was then tending to a peanut stand on the west side of Halsted street south of 52nd street; that he saw appellee step off the car and fall down; that the car had not made any stop before she fell and the car was then slacking up for the stop on the north side of 52nd street.

Michael Bohn testified that he was standing on the east side of Halsted street about seventy-five feet south of 52nd street; that just as the car came along in front of him and while it was slowing down for the crossing, he saw appellee step off from the rear end of the car and fall upon the street; that the car had not stopped there before appellee fell.

Excluding the testimony of the boy, Bennie Steffens, whose situation as regards his opportunity to observe the conduct of appellee was similar to that of the witness, Gale, there is the testimony of eight adult witnesses, six of whom appear to be disinterested, in contradiction of the facts relied upon by appellee as a ground of recovery and supported by the testimony of appellee and the two boys, Connor and Pickett. While it is true that in determining where lies the preponderance of evidence, the testimony of witnesses is to be weighed and the preponderance determined by the weight rather than by merely counting the witnesses and striking a numerical balance, the number of witnesses testifying to a certain state of facts is not to be ignored as an element in determining where lies the preponderance of the evidence. Where the opportunity of several witnesses to observe the facts as to which they testify is equal, and such witnesses stand on an equal plane as to their credibility in other respects, the element of numbers is, and properly so, one of controlling influence. A careful examination of the evidence of the several witnesses here involved compels us to the conclusion that upon the controverted issue of fact, whether or not appellee was injured while attempting to alight from the car while it was in motion, a clear preponderance supports the contention of appellant, and that the verdict of the jury is contrary to the manifest weight of such evidence.

While the verdict and judgment, if supported by the evidence, might not necessarily be required to be set aside upon a consideration and determination of the other errors assigned, we may properly consider and determine the same, in so far as they relate to the procedure at the trial, for the guidance of court and counsel upon a retrial of the case.

As tending to support the contention of appellee that north-bound cars on Halsted street frequently stopped at the south line of 52nd street for the purpose of receiving and discharging passengers at a point directly opposite the main entrance to Luna Park, appellee was permitted to show that a large number of people frequented that park during the season and that cars were stopped at that corner for the accommodation of persons going to or returning from said park. The situation in that regard, as it then existed, was proper to be disclosed to the jury for their consideration, as. affecting the conduct of both parties at the place in question.

It was competent for the witness, Mary Joyce, to state that upon the day following her injury appellee seemed to be suffering pain, but the further answer of the witness that appellee complained of having pain was incompetent, and would doubtless have been stricken, if appellant’s motion to strike had been directed to such incompetent portion of the answer.

It is complained that counsel for appellee was improperly permitted to ask the witness, Gale, a leading question on his direct examination. The question to which our attention is directed was not leading, in view of the preceding testimony of the witness, but if it had been objectionable for that reason, the objection interposed by appellant was not sufficiently specific to save the point.

A witness called as a medical expert by appellant was asked on cross-examination whether he had “testified in any other case this week than this one,” and was permitted over the objection of appellant, to answer that he had testified in one other case, but not for appellant. The objection should have been sustained to the question in its general form. Chicago & E. I. R. Co. v. Schmitz, 211 Ill. 446.

Tests, based upon religious belief or want of such belief, to determine the competency of a witness have been abolished (Hronek v. People, 134 Ill. 139), and appellant’s objections to questions involving merely the religious training of the witness, Connor, should have been sustained.

Because the verdict of the jury is against the manifest weight of the evidence, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Emilie Bischoff, Appellee, v. The General Accident Fire & Life Assurance Corporation, Ltd., Appellant.
    Gen. No. 17,526.
    1. Appeals and errors—when 6iZ^ of exceptions stricken. Where the time for filing a hill of exceptions is extended by the Municipal Court on application made more than sixty days after entry of judgment, the bill will be stricken from the files on motion of appellee.
    2. Appeals and errors—when defendant cannot question sufficiency of declaration. In an action on an insurance policy, defendant cannot raise the question for the first time in a court of review that the declaration fails to allege that proofs of loss were furnished.
    3. Pleading—defects cured hy verdict. In an action on an insurance policy, where plaintiff fails to allege in his declaration that proofs of loss were furnished to defendant and defendant does not object to the declaration on the trial, the defect is cured by verdict.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed May 21, 1913.
    John A. Bloomingston, for appellant.
    Beach & Beach, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This was a suit instituted by appellee against appellant to recover the amount of a policy of accident insurance issued by appellant to Gustav Bisehoff, the husband of appellee. A trial in the Municipal Court resulted in a verdict and judgment against appellant for $6,300, to reverse which judgment it prosecutes this appeal.

' The time for filing the bill of exceptions was extended by the Municipal Court upon an application therefor made more than sixty days after the entry of judgment, and upon motion of appellee heretofore made in this court the said bill of exceptions was stricken from the files upon the authority of Lassers v. North-German Lloyd Steamship Co., 244 Ill. 570, and Haines v. Knowlton Danderine Co., 248 Ill. 259. These eases are final authority upon the question of the propriety of our former action and we respectfully decline the invitation extended to us by appellant to review such action or ignore the cases cited.

In the absence of a bill of exceptions the only errors reviewable here are such as are assigned upon what corresponds to the common-law record.

The declaration sets out the policy in full and alleges that the same was in full force and effect on, to-wit: November 3, 1909, at the time of the death of the insured which resulted solely from bodily injuries, caused exclusively by external, violent and accidental' means, of all of which appellant received due and written notice at its office in Philadelphia, on, to-wit: November 8, 1909; by reason whereof, etc.

The preamble in the policy provides, in part, as follows:

“And in further consideration of written notice to the Corporation at Philadelphia, as soon as may be possible after date of accident, of death, or disability for which claim be made * * * .”

The tenth provision under the designation “General Agreements” provides, as follows:

“Affirmative proof of loss under Provisions 1, 2, 3, 5, 7 or 8 shall be furnished within sixty days from the time of death, or loss of limb, or of sight, or of the termination of temporary disability. No action at law shall be maintainable before two months or after six months from the date of the filing of the required proof of loss.”

As the declaration fails to allege specifically that proofs of loss were furnished to appellant, it is insisted that it is fatally defective and insufficient to support the judgment, even after verdict.

Appellant did not challenge the sufficiency of the declaration by demurrer, but pleaded the general issue and two special pleas.

The bill of exceptions having been properly stricken from the files neither the motion in arrest of judgment, if any such motion was interposed, nor the action, if any, of the court thereon, is before us for review. The question does not even appear to have been suggested by appellant in the trial court, and it is elementary that it cannot be raised for the first time in a court of review. If, however, the question was open to review! under a proper assignment of errors, we should be compelled to hold that the alleged defect in the declaration was cured by the verdict. In Kelleher v. Chicago City Ry. Co., 256 Ill. 454, it was said :

“If the issue joined be such as necessarily required, on the trial, proof of facts omitted or so defectively or imperfectly stated as to have constituted a fatal objection upon demurrer, without which proof it is not to be presumed that either the judge would direct the jury to give or the jury would have given the verdict, such defect, imperfection or omission is cured by verdict. ’ ’

It may well be that the notice required, in the preamble in the policy, to be given to the insurer, did not obviate the necessity of furnishing proofs of loss to the insurer, as required by the tenth provision in the policy above quoted, and that a failure to allege the furnishing of such proofs of loss would render the declaration vulnerable to attack by demurrer, but the omission, imperfection or defect in that regard is not available to appellant, upon this record, after verdict. In the cases relied upon by appellant in support of its position, the question arose upon the consideration of a demurrer to the declaration.

What was said in Supreme Lodge K. of P. v. McLennan, 171 Ill. 417, is pertinent here:

“The alleged insufficiency in the declaration is, that it omits allegations necessary to the full and complete statement of a cause of action. Conceding this critieism to be just, it is but that the declaration defectively states a cause of action. The objection to the declaration was not raised in the trial court. Had it been suggested there it could have been readily obviated by amendment. It is a familiar rule that pleading to the merits a trial and verdict cure such defects as are alleged to exist in the declaration.”

The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Graves

text:
    B. F. Moseley, Defendant in Error, v. William A. Waite, Plaintiff in Error.
    Gen. No. 17,175.
    1. Payment—when not shown. Where plaintiff, the assignee of a note, -obtains a judgment against defendant, the maker, and the only evidence introduced by defendant in suport of his defense of payment was evidence that he had paid' in full an account for labor with the payee of the note, and it is not shown that the note had any connection with the account, the judgment is affirmed.
    2. Evidence—burden of proof. In an action on a note, .where defendant pleads payment, he- has the burden of proof.
    3. Evidence—as to payment of note. In an action on a note, evidence offered by defendant to show payment of an account for labor with the payee is properly excluded when there is no evidence to show that the note had any connection with the account.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed May 21, 1913.
    Arthur Humphrey, for plaintiff in error.
    Beauregard F. Moseley, pro se.

   Mr. Justice Graves

delivered the opinion of the court.

One Frank Crowell worked for plaintiff in error from September 16, 1908, to some time in 1910. On December 31,1909, plaintiff in error gave to Crowell a note for $200, due six months after date, drawing six per cent, interest until paid. The record does not show whether this note was given for wages, borrowed money, merchandise or some other consideration, but it is not denied that it was given for a valuable and adequate consideration. On the back of the note appears an indorsement to defendant in error over the name of the payee and under date of June 25, 1910. On June 29, 1910, defendant in error notified plaintiff in error in writing in effect that the note had been assigned to him; that there was. due thereon $206, and that he wanted the same paid when due. Suit was brought in the Municipal Court on the note in the name of the assignee, July 27, 1910. It was tried by the court without a jury and judgment was rendered against the maker, plaintiff in error here, for the full amount of the note and interest. The affidavit of defense, while in some respects informal, we think was sufficient to put in issue the validity of the assignment of the note; the date of the assignment and the defense of payment. Plaintiff in error has, however, directed his argument here solely to the issue of payment thereby waiving any questions that might have been raised as to whether, and if so, when the assignment was in fact made. The evidence introduced, offered and preserved, in the record, shows the facts, on which the claim of payment is based, to be that the payee of the note worked for plaintiff in error, as already stated; that on July 18, 1910, Crowell executed an assignment to defendant in error of an account for work and labor against plaintiff in error showing a balance due of $668, and on that same date defendant in error caused to be delivered to plaintiff in error a demand in writing for the payment of that account within three days. In this demand no reference was made to the note referred to in his notice of June 29, 1910, mentioned above. On July 14, 1910, one A.

Humphrey, as attorney for plaintiff in error, sent to defendant in error a letter enclosing a statement of account between plaintiff in error and Crowell, showing the amount due from plaintiff in error to Crowell for work to be $354.10, and enclosing therewith the check of plaintiff in error for that amount. That letter was as follows:

Chicago, July 14th, 1910.
Mr. Beauregard F. Moseley, Attorney & Counsellor at Law, 6221 South Halsted St., City.
Dear Sir:—Inclosed herewith, please find statement of account between Dr. W. A. Waite, proprietor of the Woodlawn Park Garage, and Frank Crowell, also a check for $354.10, in full of the balance due to Mr. Crowell, or you as the assignee of said account.
I have personally examined Dr. Waite’s books, and several witnesses, regarding this matter, and am fully convinced and satisfied that this account is correct, and that this check is for the entire amount, which can under any possible proof or construction, be due Mr. Crowell, therefore tender you this check in full of all his demands to date.
Trusting that you will see your way clear to accept the same, I am,
Tours very truly,
(Signed) A. Humphrey,
Attorney for W. A. Waite.”

Across the face of the account enclosed in this letter letter defendant in error wrote:

“Received payment, B. F. Moseley, assignee.”
On the next day defendant in error by letter again demanded of plaintiff in error payment of the $200 note. On the third day thereafter Mr. Humphrey wrote the defendant in error as follows:
Mr. Beauregard F. Moseley,
Attorney & Counsellor at Law,
6221 S. Halsted St., City.
Dear Sir:—Tour letter of the 15th inst., addressed to Mr. W. A. Waite, 6340 Madison Avenue, has been handed to me for reply.
In this matter, a statement was made by Dr. Waite, showing the entire time Mr. Frank Crowell was in his employ. His wages for this time amounted to $897.10; there was paid to him by Dr. Waite, during the time he was in his employ $543.00. This left $354.10, the total amount due. On the 14th inst., a check for this amount was inclosed in a letter written by me, which check was tendered to you in full of all demands to date. Ton accepted this check and receipted the bill. As I understand the authorities in this state, this closes the matter, and there is nothing now due on the note you mention, it having been fully paid by the check above referred to.
If you know of any reason why this is not true, of course, I would be glad to take it up with you, but as I view the law and the facts, there is nothing due you or Mr. Crowell, from Dr. Waite, and the note should be surrendered to him and cancelled.
Tours very truly,
(Signed) A. Humphrey.”

In this letter written four days after the check in payment of the account had been sent to defendant in error, and accepted by him, the note is first mentioned in connection with the open account and then only by way of a recital by Mr. Humphrey of his construction of what the check was to pay.

On the defense of payment the burden of proof was on plaintiff in error. The proof offered by him went solely to question of the payment of the labor claim. The suit was not begun to recover on that claim, but was brought on an assigned promissory note, and there was no proof competent or otherwise introduced or offered tending to show that the note sued on had any connection with services rendered by Crowell for plaintiff in error. The proof offered to show payment of the labor claim was properly excluded.

The judgment of the Municipal Court is, therefore affirmed.

Judgment affirmed.


text:
    H. H. Erickson, Defendant in Error, v. J. B. Madsen, Trading as J. B. Madsen & Company, Plaintiff in Error.
    Gen. No. 17,324.
    1. Municipal court—effect of defendant’s failure to file affidavit of merits. When defendant fails to file an affidavit of merits as required by the rules of the Municipal Court, plaintiff is entitled to a judgment as in a case of default for the full amount due as shown by his affidavit of claim.
    2. Municipal court—effect of failure of defendant to verify Ms affidavit of merits and claim of set-off. Where defendant’s affidavit of merits and claim of set-off is not verified as required by the Municipal Court rules he is not entitled to have his defense or claim of set-off considered by the Municipal Court and is in no position to ask the Appellate Court to consider errors assigned.
    3. Appeals and errors—effect of failure to file cross errors. Where no cross errors are assigned, error, if any, in allowing plaintiff in error a set-off for a sum for work and materials in an action for an amount deposited on an order is not available.
    Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed May 21, 1913.
    Stedman & Soelke, for plaintiff in error.
    Culver & King, for defendant in error.
   Mr. Justice Graves

delivered the opinion of the court.

On October 15, 1909, at about four o’clock in the afternoon defendant in error ordered plaintiff in error, who is a manufacturer of store; and office furniture and fixtures, to make up for him some store fixtures for an agreed price of $297.50, the same to be completed within two weeks from that date and paid $100 down on the order. The entire transaction was had between defendant in error, acting for himself, and one George Banks, acting for plaintiff in error. Banks was manager of the business for plaintiff in error. No question is raised as to the authority of Banks, the manager, to make the contract and receive the $100. Defendant in error testified on the trial that about eight o’clock on the following morning, October 16, 1909, he called plaintiff in error by telephone and talked with Banks, the manager, and told him to hold up the order, because defendant in error ‘ ‘ had not as yet settled as to his lease;” that in a few days he called in person at the factory of plaintiff in error and had another talk with Banks, and told him he could not get his lease and did not want the fixtures, and “would have to call the deal off,” and asked Banks for the $100 he had deposited; that Banks said he was sorry, but that it was all right and he would cancel the order; that Banks said he could not give defendant in error his money back then, because Mr. Madsen, would have to sign the check, but it would be mailed to him the next day; that the check was not received by him, as promised, and he went to the factory again several times, and finally saw Mr. Madsen and told him that his manager, Mr. Banks, had agreed to cancel the order and return the money; that plaintiff in error refused to return the $100, but offered to return $75, saying his men had spent two or three days on the order and he could not afford to have them do that for nothing. Both Banks and plaintiff in error deny the statements of defendant in error, relating to the cancellation of the order and the promise to return the $100, and the offer to return $75 of it, except that they each admit defendant in error came to them and asked that it be done.

Defendant in error brought suit in an action of the fourth class in the Municipal Court, and stated his cause of action to be on the promise of plaintiff in error to return to him $100 deposited by him with plaintiff in error on an order for store fixtures, which had been canceled by agreement of parties. This statement of claim was duly verified, as required by rule 16 of the Municipal Court. Plaintiff in error entered his appearance and with it filed as his only defense what he calls a claim of set-off for damages for work performed and materials used, amounting to $136, for which he prays judgment. The abstract of the record mentions this paper as “defendant’s affidavit of merits and claim of set-off.” A reference to the record discloses that the paper evidently intended for an affidavit of merits and claim of set-off was never in fact verified. The jurat does not even purport to be signed by any officer authorized to administer oaths. With the record in that condition the case was tried by the court without a jury and resulted in a finding and judgment for defendant in error for $75.

Under the rules of practice in the Municipal Court, plaintiff in error having failed to file an affidavit of merits, defendant in error was entitled to a judgment as in case of default for the full amount due, as shown by his affidavit of claim. Plaintiff in error was not entitled to have his defense or claim of set-off considered by the Municipal Court, and is in no position to ask this court to consider the errors assigned on this record. As attorneys for defendant in error have made no point of the want of compliance with the rules of practice of the Municipal Court, and as the judgment must be affirmed on the merits of the case, we dismiss the subject from our consideration.

It is undisputed that the goods were ordered and $100 deposited by defendant in error with the order. It is undisputed that defendant in error undertook to cancel the order before the goods ordered were manufactured. Whether Banks, the manager for plaintiff in error, who took the order and the $100, was authorized to consent to the cancellation of the order and bind his principal to return the $100; whether such manager did consent to such cancellation and did agree to return to defendant in error the $100; whether plaintiff in error had in fact done anything towards the manufacture of the goods before the order was canceled and how much he was injured, if at all, by the cancellation of the order, were all questions of fact to he determined by the trial court, and its determination of such facts should not be lightly disturbed. The certified statement of facts discloses that the court found that the order was ‘ ‘ canceled and rescinded as testified to by the plaintiff,” and that the court allowed plaintiff in error $25 for work performed and materials used prior to the cancellation of the order, and rendered judgment against plaintiff in error for $75, the balance of the amount deposited with plaintiff in error after deducting the amount allowed for work and material furnished. We are unable to say that in so doing the court erred to the prejudice of plaintiff in error. If any error was committed by the court, it was in allowing plaintiff in error the $25 for work and materials, but as there are no cross-errors assigned, this error is not available here.

The judgment of the Municipal Court is, therefore, affirmed.

Judgment affirmed.


text:
    E. M. Leonard Produce Company, Defendant in Error Union Pacific Railroad Company, Plaintiff in Error.
    Gen. No. 17,345.
    1. Municipal court—affidavit of defense. Where in a fourth class action in the Municipal Court plaintiff’s statement of claim is based on unnecessary and unreasonable delay on the part of defendant carrier in the transportation of goods and defendant’s affidavit of defense is simply that it has a good and valid defense to the whole of plaintiff’s claim, the nature of which is “that there was no unnecessary and unreasonable delay,” etc., the only fact in issue is that of delay, and defendant is not entitled to avail itself of the absence of proof that it was the initial carrier, or of proof of a contract between plaintiff and defendant, or that plaintiff is the lawful holder of a receipt or bill of lading issued by it.
    2. Municipal coubt—affidavit of defense. On appeal, a defendant cannot complain of the absence of proof as to matters which he has admitted by failure to specifically deny in his affidavit of defense.
    3. Cabbiebs—act of God. A carrier cannot avail itself of the defense that a delay in transportation occasioned by a washout was due to an act of God for which it was not responsible, where, from the stipulated facts, it appears that had the goods been transported without delay upon receipt no delay would have been occasioned by the washout.
    Error to the Municipal Court of Chicago; the Hon. Max Ebebhardt, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed May 21, 1913.
    Davis & Rankin, for plaintiff in error.
    Harry S. Ditchburne, for defendant in error; Frederick S. Baker, of counsel.
   Mr. Justice Graves

delivered the opinion of the court.

An action of the fourth class was begun by defendant in error in the Municipal Court. He filed his statement of claims and -an affidavit showing the amount due to be $151.41. Plaintiff in error entered its appearance and filed its affidavit of defense. The issues so formed were tried by the court without a jury on the following stipulated facts:

On the night of February 12,1907, the E¡. M. Leonard Produce Company shipped 31,685 pounds of potatoes in first-class condition to their order, notify Loeb-Fleishman & Co., Los Angeles, California, in car No. U. P. 56830. Shipment was accepted by the Union Pacific Railroad at Ault, Colorado, on that date and the Union Pacific Railroad Company delivered the car to the Oregon Short Line at Ogden, Utah,' on February 17, 1907. The Oregon Short Line, in turn, delivered the car at Salt Lake City on February 18,1907, at 4:00 a. m. On February 22nd, the San Pedro, Los Angeles and Salt Lake Eailroad to whom this car had been delivered for further transportation moved it forward from Salt Lake City and was prevented from carrying it further than Lund, Utah, on account of a washout of the railroad tracks occurring on February 22, 1907, caused by unprecedented and inevitable flood which amounted to the act of Cod. The car was, for the same reason, held at Lund until March 11, 1907, the tracks being destroyed between Lund and Salt Lake City, at which time it was moved back to Salt Lake City, delivery being made to the Oregon Short Line at Salt Lake City on March 13, 1907. The Oregon Short Line Eailroad delivered the car to the Southern Pacific Company for shipment to Los Angeles, California, and delivery was made at Los Angeles on March 28, 1907, contents in bad order and condition. The potatoes were refused by Loeb-Fleishman & Co. because of the delay in delivery and the poor condition of the same. They were afterwards taken by Loeb-Fleishman & Co. at the request of E. M. Leonard Produce Company and sold for said E. M. Leonard Produce Company account to various parties in and about Los Angeles. The net amount of plaintiff’s loss is $151.41.
“The usual and customary schedule running time between Ault, Colorado, and Ogden, Utah, on the Union Pacific Eailroad for carload lots of potatoes is from four to five days. The usual and customary running time on the Oregon Short Line between Ogden, Utah, and Salt Lake City for carload lots of potatoes is about one-half day. The usual and customary running time schedule between Salt Lake City and Lund, Utah, on the San Pedro, Los Angeles and Salt Lake E. E. on carload lots of potatoes is about twenty-nine hours. Trains run daily from and between all of the points above named.”

The trial resulted in a judgment in favor of defendant in error for $151.41, the full amount of the claim. To reverse this judgment this writ of error is prosecuted.

Plaintiff in error asks a reversal of the judgment for four reasons, which we quote from his brief:

1. There is no proof in the record that the defendant was the initial carrier of plaintiff’s potatoes.

2. Defendant’s liability at common law cannot attach because the stipulated facts are indefinite and wholly fail to establish a contract between plaintiff and defendant.

3. There is no proof that the plaintiff is the lawful holder of a receipt or bill of lading issued by defendant.

4. The finding of the court below is contrary to law because it manifestly appears from the facts in the case that the delay in the transit was due to an unprecedented and inevitable flood which amounted to

We will dispose of these contentions in their order. In section 43 of the Municipal Court Act, it is provided, among other things, that “ * * * In eases of the fourth class * * * the Municipal Court may adopt such rules and regulations as it may deem necessary to enable the parties in advance of the trial to ascertain the nature of the plaintiff’s claim or claims and the defendant’s defense or defenses * * * .”

In the exercise of the power conferred by the foregoing statutory provision, the Municipal Court has from time to time adopted various rules intended to enable the parties to ascertain before the trial the issues that are to be contested on the trial, and thereby expedite the disposition of business and minimize the expense of litigation by rendering it unnecessary to establish by proof facts essential to the plaintiff’s right to recover, but which are not contested. Among such rules in force at the time the case at bar was pending and disposed of were rules 17 and 19, in which, among other things, it is provided:

“Bule 17. Defendant’s AEdavit of Defense.
“In first and fourth class cases for the recovery of money only the defendant shall file an affidavit sworn to by himself, his agent or attorney, stating that he verily believes the defendant has a good defense to said suit upon the merits to the whole or a portion of the plaintiff’s demand, and specifying the nature of such defense, whether by way of denial of by way of confession and avoidance, in such, a manner as to reasonably inform the plaintiff of the defense which will be interposed at the trial, and evidence of only such defenses are set out in said affidavit shall be admitted on the trial. * * *
“If the defendant fails to file an affidavit of merits, such as is required by the rules of this court, the plaintiff shall be entitled to default and judgment upon the plaintiff’s affidavit of claim on file in said cause or upon such further evidence as the court may require.
“Buie 19. Specific Denial Bequired.
‘ ‘Every allegation of fact in any statement of claim * _ * * if not denied specifically or by necessary implication in the affidavit of defense filed in reply by the opposite party, shall be taken as admitted, except as against an infant or a lunatic.”

The statement of claim filed by defendant in error is as follows:'

“Plaintiff’s claim is for loss and damage sustained on account of unnecessary and unreasonable delay on the part of the defendant in transporting one car of potatoes from Ault, Colorado, to Los Angeles, California. The shipment was made February 12, 1907, and car did not reach Los Angeles until March 28, 1907. Claim was made against defendant company by claimant and is covered by U. P. Claim No. D. 974— 19—N. P. The number of the car was Union Pacific 66830, whereof the plaintiff brings this suit and for interest at statutory rates. ’ ’

Upon that statement of claim and the affidavit of amount due defendant in error would under the rules quoted above have been entitled to a judgment for the full amount of his claim without introducing any evidence, if plaintiff in error had filed no affidavit of defense.

The affidavit of defense filed by plaintiff in error is as follows:

“That said Union Pacific Railroad Company has a good and valid defense to the whole of the plaintiff’s claim, as herein set forth; that the nature of said defense is that there was no unnecessary and unreasonable delay on the part of the Union Pacific Railroad Company in transporting said car of potatoes as plaintiff has herein complained against it.”

That affidavit of defense puts in issue one fact only, namely, whether there was unnecessary and unreasonable delay in transporting the car of potatoes from Ault, Colorado, to Los Angeles, California, and that is the only fact defendant in error was required under the rules quoted to prove. All other facts necessary to defendant in error’s right to recover not being specifically denied in the affidavit of defense, were admitted. It was, therefore, admitted in the Municipal Court that plaintiff in error was the initial carrier; that the contract for shipment was entered into by the parties and that a bill of lading was issued by plaintiff in error for such shipment. These facts having been admitted in the trial court, plaintiff in error can not be heard to complain in this court that they were not proven. This disposes of the first, second and third grounds urged by plaintiff in error for a reversal of the judgment below. Assuming that the affidavit of defense in denying there was unnecessary and unreasonable delay in transporting the potatoes puts in issue the question raised by the fourth and last ground urged as a reason for reversing the judgment, namely, whether whatever delay there was, was caused by the act of G-od, which is extending that affidavit to the limit for the benefit of plaintiff in error, the' stipulated facts show the contention to be without merit. That stipulation shows that the car of potatoes left Ault, Colorado, February 12th; that it should in the ordinary course of such shipment have reached Lund, Utah, not later than February 18th or 19th; that it did not reach there until sometime on February 23rd; that a flood occurred on February 22nd which prevented the transportation of the same further at that time; that it was held at Lund for seventeen days, was then re-routed and finally reached its destination March 28th, or forty-four days after the date of shipment. It was for the court trying the case on the stipulated facts to determine whether the delay in transporting the goods from Ault, Colorado, to the flood district at Lund, Utah, and from Lund, Utah, to Los Angeles, California, after the same had been re-routed, was unreasonable and unnecessary, and whether the delay at Lund would have occurred at all if the car had been transported in the usual and customary way and time, in order that the main question, namely, whether there had been unnecessary and unreasonable delay in the transportation of the car from the initial to the terminal points of shipment can be determined. The court found that there had been such delay and rendered judgment for the stipulated amount of damages, and we think on the facts and the law it was warranted in so doing. Unreasonable and unnecessary delay in transportation being shown, and all other facts necessary to defendant in error’s right to recover being admitted by the failure of plaintiff in error to specifically deny them in the affidavit of defense, and the amount of the damages having been stipulated, the court could do nothing less than to render the judgment it did.

The judgment of the Municipal Court is, therefore, affirmed.

Judgment affirmed.