text:
    Rosweld W. Weld, Appellee, v. First National Bank of Englewood, Appellant.
    Gen. No. 15,832.
    1. Contracts — effect of architect’s certificate. An architect's certificate does not bind the parties to a bnilding contract with respect to any matter not left to the determination of the architect.
    2. Evidence — when offer of “proof insufficient. An offer of proof is insufficient if instead of specifying facts it merely embodies statements of conclusions.
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed November 14, 1911.
    Rehearing denied November 28, 1911.
    William A. Doyle, for appellant; Joseph J. Thompson, of counsel.
    Weissenbach, Shrimski & Meloan, for appellee.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Oil September 29, 1906, the parties entered into a written contract for the stone work upon a new building to be constructed for appellant. The contract provided that the work should be done under the direction of the architect, upon whose certificates payments were to be made to the contractor, the final certificate- of the architect to be conclusive evidence of the performance of the contract, the work to be completed on or before December 1, 1906, and if not thus completed the contractor to pay to the owner $25 per day, as liquidated damages, for every day thereafter until the completion of the work.

The contractor did not complete the work at the time specified, but wlien it was completed be made_application to the architect for his final certificate, which was furnished in the following form, showing both printed and written parts (the written parts, except the check marks made in the space after the sign ‘ ‘ $ ”, which are made in ink, — appearing in italics):

Certificate No. 65.
‘ ‘Building No. 176. $1,211 50(100 September 3, 1907.
To First National Bank of Englewood:
This is to Certify, That B. W. Weld & Co., Contractor for the... .Granite work... ..of your building at Nos. 443-445 W. 63rd St., Chicago, Ill’s,... .is entitled to a final payment of One thousand two hundred eleven and 50\100 Dollars, by the terms of contract.
Julian Barnes,
Architect.
Eemarks: This contractor was forty-eight (48) days beyond the time specified for finishing the work under his contract, for which the contract provides a penalty of $25.00 per day. Statements showmg that the building is free from claims to accompany this certificate.
J. B.”
Contract Price,.$5,500.00
Extra Work, .$
Deduction .$
Total, ...$5,500.00
Former Certificates, .$4,288.50
Present Certificate, .$1,211.50
Total, .$5,500.00
Balance, ...$

Appellee brought an action of the first class in the Municipal Court of Chicago; the declaration contained several special counts, and the common counts, together with a bill of particulars, setting out the claim of the plaintiff, which included extra work, labor and material, etc., the whole aggregating $1,561.85.

A jury being waived the cause was tried by the court, and at the trial the bank tendered to Weld the sum of $11.50, which, it claimed, was all that was due. The tender was declined, and the cause proceeded.

Appellee offered in evidence the written contract together with the architect’s final certificate, and also introduced’ testimony as to the amount of accrued interest, whereupon he rested his case.

Appellant did not offer any evidence, nor produce any witnesses. At the close of appellee’s case, however, counsel for appellant made the following statement : “Defendant offers to prove that the architect decided that there was a deduction from the balance remaining unpaid on the contract price, for forty-eight days’ delay, at $25 per day.” To this offer the court sustained an objection, and, no further testimony being offered, found the issues in favor of appellee, — assessed its damages at $1,322.52, — being $1,211.50 mentioned in the certificate, with interest thereon.

Thereupon, and on the same day, appellant moved for a new trial, which was denied. He then entered a motion in arrest of judgment, which was also overruled, and judgment was entered upon the finding, whereupon an appeal was prayed and allowed. The cause was thus tried and disposed of June 29, 1909.

Subsequently, and on the 10th of July, 1909, appellant moved to vacate the judgment theretofore entered, basing his motion upon the grounds that if the architect’s certificate does show a balance of only $11.50, there was a mistake and did not represent the decision and judgment of the architect; that a new certificate has been issued by the architect for the exact sum of $11.50. In support of this motion appellant filed the affidavit of Julian Barnes, the architect, who swore that he decided there should be a deduction from the balance remaining unpaid of $25 per day for forty-éight days; that his decision was that there was due plaintiff but $11.50, and that he had made a new certificate for that sum, and tendered it to plaintiff. After a hearing, this motion to vacate the judgment was overruled.

Appellant files nineteen assignments of error, but his brief and arguments are directed to show, first, that a proper interpretation of the original architect’s certificate showed a balance due of only $11.50; second, that if not thus interpreted, then there was an evident error in drafting the certificate, and evidence was admissible to correct the error; third, if the question of damages was, by contract, submitted to the architect, and he failed to pass upon it, then the certificate was not binding in that particular, and evidence was admissible to show the damages, and fourth, if the question of damages for delay was not submitted to the architect by the contract, then the court should have admitted evidence and made a finding with respect thereto.

It is manifest that the architect could not, by his certificate, determine any question not submitted to him by file provisions of the contract between the parties. A careful examination of the contract shows that, while it provides that the final certificate of the architect should be conclusive evidence of the completion of the work, it does not contain any provision for his certifying as to any delay in its completion. Consequently his finding or certifying in respect thereto, would in no manner bind the parties.

The offer made by appellant at the close of plaintiff’s case, “to prove that the architect decided that there was a deduction from the balance remaining unpaid on the contract price, for forty-eight days’ delay at $25 per day,” was properly refused. Even if the physical presence of the witnesses had been waived, the court properly refused the offer, because, first, to prove' what the 'architect had ‘ decided ’ ’ would be merely to prove a conclusion; and, second, the contract nowhere conferred any authority upon the architect to decide this particular question.

As to the proceeding had in the case subsequent to the entry of judgment on the 29th of June, 1909, wliich had been preceded by a trial and a motion in arrest of judgment, — as a matter of practice, we do not think the affidavit of the architect offered and heard in support of a motion to vacate the judgment, could avail appellant, even if the affidavit had presented a meritorious defense; but, in the view we have expressed that the architect had no authority under the contract to certify as to this matter, it follows that the affidavit did not present any sufficient grounds for a new trial, even if it had been filed and heard in support of a motion for a new trial instead of a motion in arrest of judgment.

By introducing the contract, and the certificate of the architect, which was made “conclusive evidence of the completion of the work,” the plaintiff made a prima facie case, and if the defendant wished to establish an offset or counterclaim for failure on the part of the contractor to complete the work within the time specified, he should have offered testimony- showing the number of days’ delay, if any. The contract between the parties has determined the measure of'damages for the delay at $25 per day; however, the certificate of the architect was not evidence of the fact that there had been any given number of days’ delay, because he had not been given, by the contract, any authority to certify in relation to that question.

Finding no reversible error, judgment of the court below will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Baldwin

license: Public Domain

text:
    Henry R. Planz et al., Defendants in Error, v. Ezra A. Cook, Plaintiff in Error.
    Gen. No. 15,896.
    1. Judgments — u'hat essential to require setting aside. In. order to require that the court set aside a judgment entered by default, two things must he made to appear: First, that the moving party was not chargeable with negligence; second, that he had a meritorious defense.
    2. Judgments — how affidavit of merits upon motion to set aside construed. Such affidavits are to be construed most strongly against the party in whose behalf they are presented.
    3. Judgments — when refusal to set aside will not reverse. A refusal to set aside a judgment entered by default will not reverse unless it appears that there has been an abuse of discretion by the trial court.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed November 14, 1911.
    M. L. Thackaberry and LoreNZ & Reed, for plaintiff in error.
    Henry C. Adams and DeWitt C. Jones, for defendants in error.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Upon this writ of error, we are asked to reverse the' action of the Municipal Court, which denied a motion to vacate the judgment for $187.71, entered by default against the plaintiff in error.

Defendants in error (plaintiffs) brought suit on the 16th of March, 1909, to recover a balance due for labor and material in certain lithographing work" done by them for plaintiff in error (defendant). On the 22nd of March, 1909, M. L. Thackaberry, Esq., entered the written appearance of the defendant and his own ap.pearance, as attorney therefor. On the 15th of September, 1909, the case came on regularly for trial; defendant, not appearing’, vas defaulted. A jury was duly sworn, and heard the evidence, and rendered a verdict in favor of the plaintiffs for $187.71, upon which verdict the court at once entered judgment.

On the following day, September 16th, the defendant moved the court to vacate the judgment. Hearing upon this motion was postponed until the 17th, at which time, after hearing, the court denied it; whereupon the defendant brought the case here upon a writ of error.

Plaintiff in error assigns as errors:

“1. The court erred in entering judgement in the above cause in view of the fact that the cleric of the ■defendant’s attorney left word that he was temporarily engaged before another judge of the Municipal Court.
2. The court erred in not vacating and setting aside said judgmet on the showing made by the defendant that the judgment was unjust and unreasonable.
3. The trial court erred in the use of his discretion to vacate and set aside said judgment.
4. The attorney for defendant did all that lawyers are required to do under the rules of practice in the Municipal Court in watching said cause and being ready for trial.
5. Said cause was fourteenth on the jury trial calendar of said trial court, and in the regular course of events would not have been reached that day. Whereas it whs reached and called for trial and disposed of in less than one hour from the time of the convening of the court.”

Manifestly the first, fourth and fifth are not such assignments as we are liberty to consider. Upon the record before us, we are practically limited to the second assignment, which assigns error upon the action of the court in refusing to vacate and set aside the judgment, upon the showing- made. Upon the motion to vacate the judgment, the court below heard the affidavits of Cook, the defendant, of Mr. Thackaberry and Mr. Moak, respectively, Ms attorneys, and of Mr. Sa-batli, a clerk in the office of Mr. Moak.

The trial court would not have been justified in granting the motion unless two things were made to appear: first, that the moving party was not chargeable with negligence; second, that he had a meritorious defense. Hahn v. Gates, 169 Ill. 249; Chicago, etc., v. Park Nat. Bk., 145 Ill. 481.

As to the first, we do not think the affidavits relieve the defendant from the charge of negligence. Upon this the affidavits of Mr. Moak and Mr. Sabath were presented. The former was to the effect, that having been requested by Mr. Thackaberry, he had agreed to try the cause, and that on the afternoon of September 14th he served a notice upon plaintiffs’ attorney to produce certain papers, etc., and for a rule to file a more specific bill of particulars, which last he says was set for the morning of September 15th; that upon examination of the Municipal Court record, he found the cause fourteenth in order among the jury cases for trial, and that in the ordinary course of his experience, it was most umisual that the cause should have been reached for trial during the forenoon of the 15th; that on that morning he sent his clerk to watch the cause, and notify him in time to be present and try the cause when reached, and that he remained in his office during the forenoon ready to proceed with the hearing.

Mr. Sabath’s affidavit was to the effect that he was clerk in Mr. Moak’s office, and on the morning of the 15th of September, 1909, was directed to attend the call of Judge Gremmill, before whom the case was to be tried, and watch the cause, which was shown as the fourteenth jury case on Judge Gremmill’s call; that he also had another matter before Judge Gfirten, which he was watching; that he left word with the clerk in Judge Gremmill’s court that he had a motion before Judge Hume in this cause, and that he would be back a's soon as possible; that he told the clerk what case he was representing; that he then went to the conrt room of Jndge G-irten, where he was detained in the care of another cause, hut returned to the court of Judge G-emmill shortly after, where he learned that the cause had been tried, and judgment entered; that he had been instructed to notify Mr. -Moak when the cause was likely to be reached and give him time to get oyer to the court for the trial.

We do not think the affidavits -are sufficient to relieve the appellant from the charge of negligence. Clearly the negligence of the clerk, to whom the business was entrusted, and that of his attorney, Moak, is chargeable to plaintiff in error. The cause had been pending from the 16th of March, previously, and his appearance was entered on the 22nd of that month. No attempt was made until the day before the actual trial, to secure a more specific bill of particulars. In serving the notice of the motion therefor, and fixing the hearing of such motion on the day of the trial call, plaintiff in error’s attorney acted at his own risk. The affidavit of the clerk for Mr. Moak does not show that he even presented the motion for a more specific bill of particulars to any judge, and the two affidavits utterly fail, in our opinion, to establish diligence.

We have also examined the affidavits with respect to the merits of the cause. Such affidavits are to be construed most strongly against"the party in whose behalf they are presented. Crossman v. Wohlleben, 90 Ill. 537.

The affidavits of Mr. Moak and Mr. Thackaberry, respectively, as to the merits amount to little more than an expression of their belief that plaintiff in error had a meritorious defense; while the affidavit of Cook, construed as the law requires, most strongly against him, is indefinite. While it is true that courts have always been liberal in setting aside defaults when it appears that justice will be promoted, it is also true that such applications are- addressed to the sound discretion of the trial judge, and unless it appears that this sound discretion has been abnsed, it is conelnsive npon the parties.

Finding, as we do (1st) that the affidavits do not relieve the defendant from the charge of negligence, and (2nd) that the affidavits as to a meritorious defense are indefinite and unsatisfactory, we cannot say that the court below wrongfully exercised its discretion, in denying the motion to vacate the judgment, and, accordingly, its action will he affirmed.

Judgment affirmed.


author: Me. PeesidiNG Justice BaldwiN

text:
    John F. Devine, Administrator of the Estate of Casimer Wisniewski, Deceased, Plaintiff in Error, v. City of Chicago, Defendant in Error.
    Gen. No. 15,907.

      Notices — when statute requiring service upon city of injuries, does not apply. The act of 1905 requiring a person, who intends to bring an action against a city, village or town, for an injury to his person, to serve a notice, containing certain specified matters, does not apply to the statutory action brought by an administrator of a person whose death has resulted from the negligence of such city, village or town, to recover pecuniary damages sustained by the widow or next of kin.
    Action in case for death caused by alleged wrongful act. Error to the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    ^Reversed and remanded.
    Opinion filed November 14, 1911.

      Jacob C. LeBosky, for plaintiff in error.
    Edwaed J. BeuNdage and JohN E. Caveely, for defendant in error; Edwaed C. Fitch, of counsel.
   Me. PeesidiNG Justice BaldwiN

delivered the opinion of the court.

Action was brought by the administrator of Casimer Wisniewski, deceased, against the city of Chicago, in the Superior Court of Cook county, to recover for injuries sustained by the heirs and nest of kin of the deceased, by his death, which is alleged to have been caused by the negligence of the city in keeping a part of Harrison street, near Sherman street, Chicago, so badly out of repair, that the wagon of deceased struck a hole or obstruction in the street, whereby plaintiff’s intestate was thrown from the wagon and sustained injuries which resulted in his death.

The declaration alleged that notice was duly served within sis months after the accident, upon the city of Chicago, in accordance with the statute. At the close of the ease made by the plaintiff in error, the court directed a verdict in favor of the defendant, upon the ground that there was a variance between the notice alleged to have been served, and the proof in the case, as to the place of the accident. ■

Upon objection, the court refused to allow the introduction of the notice in evidence, because of the alleged variance, and, as this resulted in the failure on the part of the plaintiff to prove service of a proper notice, the court held that the plaintiff in error could not recover.

Plaintiff in error seeks a reversal here upon the contention that the notice referred to, and which was actually served upon the city, is necessary only in a suit “for personal injury/” and is not necessary in cases like the one at bar, where the sufETs brought by an administrator to recover for the death of the deceased for the benefit of the nest of kin; that, therefore, the alleged variance was as to an immaterial matter,— and accordingly, that the court erred in directing the jury, upon this ground, to find in favor of the defendant.

Sections 6 and 7, chapter 70 Hurd’s Revised Statutes, 1908, provides:

“See. 6 — No suit or action at law shall be brought or commenced in any court within this state for damages against any incorporated city, village or town by any person for an injury to his person, unless such suit or action be commenced within one year from the time such injury was received or the cause of action accrued.
“Sec. 7. — Any person who is about to bring an action or suit at law in any court against any incorporated city, village or town for damages on account of any personal injury shall, within six months from the date of injury, or when the cause of action accrued, either by himself, agent or attorney, file in the office of the city attorney (if there is a city attorney and also in the office of the city clerk) a statement in writing, signed by such person, his agent or attorney, giving the name of the person to whom such cause of action has accrued, the name and residence of person injured, and about the hour of the accident, the place or location where such accident occurred and the name and address of the attending physician (if any).”

It is evident from an examination of the briefs and arguments before us, that the only question necessary for us to decide in disposing of this case, is whether or not the action brought by the administrator in the case at bar is included within the provisions of these two sections just quoted, and, therefore, whether any notice, such as therein provided for, was required in the case at bar.

This question, in one form or another, has frequently 'been before the courts, and much uncertainty as to the law has existed because of the conflicting decisions which, have been made concerning it. However, a recent decision of the Supreme Court of our state, in Prouty v. City of Chicago, 250 Ill. 222, definitely and conclusively settles the question. In that case, there was presented to the court, for its decision, the precise question involved here, and the court there held that the act of 1905, requiring a person, who intends to bring' an action against a city, village or town, for an injury to his person, to serve a notice, containing certain specified matters, does not apply to the statutory action brought by an administrator of a person whose death has resulted from the negligence of such city, village or town, to recover pecuniary damages sustained by the widow or next of kin.

Under this decision, it is clear that the court below erred in directing a verdict for the city upon the ground stated, and entering judgment against thejolaintiif, and its action will, therefore, be reversed and the cause remanded for another trial.

Reversed and remanded.


text:
    John J. Theis, Appellee, v. Albert B. Svoboda, Appellant.
    Gen. No. 16,004.
    1. Pleading1 — when recovery may be had under common counts. If a contract has been fully performed and nothing remains to bo done but the payment of the compensation, the plaintiff may recover under the common counts.
    2. Contracts — how building to be construed. Building contracts are liberally construed and a literal compliance -with their terms is not necessary to entitle a recovery, but a substantial performance in good faith is sufficient.

      3. Contracts — what does not preclude recovery for extras furnished under building contract. Notwithstanding a building contract provides that all extras must be ordered in writing the owner may waive such provision and if he orders extras verbally he is liable therefor.
    Assumpsit. Appeal from the County Court of Cook county; the Hon. Frank G. Plain, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed November 14, 1911.
    Charles F. Vogel, for appellant.
    Matthew J. Htjss and Forest Garfield Smith, for appellee.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Appellee, Theis, brought suit against appellant, Svoboda, to recover for extra work and material furnished in and upon a building at Chicago Heights, which had been constructed by him for appellant under a written contract between them. A jury trial resulted in a verdict and judgment against appellant for $283.32.

Appellant contends that the evidence in the case did not warrant a judgment against him for any amount, and- that the trial court erred in not peremptorily instructing the jury to find in his favor; that the verdict is contrary to the law and the evidence, and that the court erred in giving the instructions given at the request of appellee.

It appears that appellee, a building contractor, entered into a written contract with appellant, for the construction of a two story and basement building, in accordance with plans and specifications made by A. G. Lunn, architect, for which Theis was to receive the sum of $9,550 when the work should be completed to the satisfaction of the architect. The contract in terms provided that no charges for extras should be made unless such extras were ordered by appellant in writing, and, further, that Svoboda might “make all alterations by adding, omitting and deviating from the aforesaid plans, drawings and specifications or either of them, which he shall deem proper, and the said architect shall advise, without impairing the validity of this contract, and in all such cases the architect shall Value or appraise such alterations. ’ ’

The declaration consisted of the common counts with an affidavit of merits, and a bill of particulars was filed specifying the extra work and material charged for,— the items aggregating $316.32.

Appellant’s contention in the court below and here is that appellee cannot recover upon the common counts, but must declare specially, and must, also, produce the certificate of the architect as to the value of the so-called extras, or satisfactorily account for its non-production; that the labor and material sued for is a part of the labor and material included within the written contract.

Appellee claimed that the building was fully completed and had been paid for under the written contract, and that the extras sued for were ordered by Svoboda in person from time to time, and that at such times he promisee! to pay therefor; that when appellant made his final payment for the building, under the written contract, appellee demanded payment for the extras, and that appellant then, and at various other times subsequently, promised to pay for them.

The contention of appellant that appellee could not recover under the common counts, but must declare specially, cannot be sustained. On the contrary, the Supreme Court has directly held, that as long as the contract is' executory, it must be declared upon specially, but when it has been fully performed, and nothing remains to be done but payment of the compensation, plaintiff may declare generally, in assumpsit. Foster v. McKeown, 192 Ill. 339.

It is the law in this State that these building contracts are to be construed liberally, and that a literal compliance with their terms is not necessary to entitle a recovery, but a substantial performance in good faith is sufficient.

We think the law of this State fully authorizes a recovery for extras furnished under a verbal contract, wherein the owner agrees to pay therefor. Notwithstanding the original written contract provides that all extras must be ordered in writing, the owner may waive this condition, and by himself ordering the extras, become liable, by his own acts, to pay therefor.

In this case, the extras ordered were not limited to such as he,'Svoboda, “shall deem proper, and the said architect shall advise,” and accordingly, there was no necessity that the architect should “value” them, or “appraise” their value. The owner himself dealt di-' rectly with the architect with respect thereto, and, by his conduct, took them out of the provisions of the contract.

We think the court was right in refusing to grant peremptory instruction to find in favor of the defendant: “If there is evidence in the record at the close of plaintiff’s case tending to prove the facts in support of his declaration, or at the close of all the testimony, if the evidence, with all the inferences which the jury can justifiably draw from it, is sufficient to support a verdict, then in each of such cases the peremptory instruction should be refused and the jury be given the case.” Foster v. Wadsworth-Howland Co., 168 Ill. 514.

We have examined all the instructions given on behalf of appellee, and do not find any reversible error therein. Appellant appears to have misconceived, throughout the trial, the legal position of appellee, which was, that he was not suing to recover binder the written contract, and that the contract was offered in evidence only for the purpose of showing that the work charged for was not included within its terms.

We have also carefully considered all the testimony heard upon the trial, and while the proof on behalf of appellee, as to some items, is somewhat unsatisfactory, we cannot say that the evidence as a whole does not fully warrant the verdict.

Appellant made his defense largely upon his denial that he had ordered the articles charged for; and his insistence that appellee could not recover under the common counts, and without the certificate of the architect as to the appraised value of the alterations, and in the main made little attempt to controvert the correctness of the individual items charged.

The fact that the hill of particulars covered items aggregating $316.32, and that the bill furnished to appellant was for $13 less, does not, in our opinion, constitute such a discrepancy as affords any substantial ground for complaint; especially so, since the verdict and judgment is for less than either of the amounts named.

Finding no reversible error, the judgment will be affirmed.

Judgment affirmed.


author: Mr. Presidihg Justice Baldwin

text:
    James Athens, Defendant in Error, v. Alek Glulizch, Plaintiff in Error.
    Gen. No. 17,849.
    Appeals and errors — when nothing •presented for review. If the assignments of error only challenge rulings as to the admissibility of evidence, in the absence of a bill of exceptions no questions are saved for review.
    Forcible detainer. Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed November 3, 1911.

      Joseph G-ranick, for plaintiff in error.
    Charles "Werno, for defendant in error.
   Mr. Presidihg Justice Baldwin

delivered the opinion of the court.

This canse is before us upon a writ of error to review a judgment in forcible detainer rendered by the Municipal Court of Chicago. The assignments of error challenge the rulings of the court below as to the admissibility of evidence.

The record does not contain any bill of exceptions, so there is nothing before us upon which we could consider the rulings of the court.

Accordingly the judgment will be affirmed.

Judgment affirmed.


author: Me. Justice Clabk

text:
    Madeline G. Kirk et al., Appellants, v. Susie McVean Kirk et al., Appellees.
    Gen. No. 15,885.
    1. Wills — what considered in construing. In construing a will courts of equity will consider the facts and circumstances surrounding the testator as they existed at the time the will was made.
    2. Wills — when trust not created in favor of children of beneficiary. Held, under the terms of the will in question in this case, that a trust was created in favor of the son of the deceased with power of appointment by will and that no trust was created in favor of the unborn children of such son which required the administration of the trust in favor of such son and such children after born.
    3. Wills — phrase “for the support of himself and family’’ construed. Held, in this ease, that the words “for the support of himself and family,” merely expressed the purpose or motive which moved the testator to make the devise, and did not create a trust in favor of such family.
    Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. Charles E. Barnes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed November 14, 1911.
    Statement by the Court.. This appeal brings up for review the action of the court below in entering a decree dismissing a bill of complaint brought by the appellants represented by their mother, Madeline G. Kirk, as guardian (the complainants being minors), against appellees.
    The pleadings under which the decree was entered consist of an amended bill, the demurrer thereto by the appellee, James M. Kirk, the answer of the appel-lee, Susie McVean Kirk, and the replication to this answer. The demurrer of James M. having been sustained, the case was referred to a master in chancery upon the answer of Susie McVean Kirk/,
    The master in his report found that the complainants were not entitled to the relief prayed for in their bill, and recommended that the bill be dismissed.
    The allegations of the amended bill are substantially as follows: that Madeline G-. Kirk was married to James M. Kirk, one of the appellees, on November 21, 1891, and that the complainants were and are the only children born of the marriage; that the oldest of the complainants, John B. Kirk, was born in 1892, and the youngest, Grace Madeline Kirk, in 1898; that Madeline G. and James M. lived together as husband and wife until 1899; that on March 24, 1899, in the Superior Court of the county of Los Angeles, California, where alb the. parties then resided, a decree of divorce was granted in favor of Madeline G., wherein it was duly adjudged that her husband, James M., had been guilty of extreme cruelty; that by the decree the care, custody and control of the four minor children complainants were awarded to her; that after the divorce James M. departed from California and took up his residénce in Chicago, where, complainants are informed, he was married again on October 10, 1907; that prior to tbe filing of the bill Madeline Gr. was made guardian of the complainants, and has ever since acted as such; that the said Madeline Gr. continued to live in the city of Pasadena and to support the complainants to the best of her ability; that with the exception of one hundred dollars which he sent to the complainants on or about Christmas, 1903, the appellee James M. has not contributed directly or otherwise to the support, care and maintenance of the four minor complainants; that the appellee James M. is the son of John B. Kirk, who in his lifetime resided in Evanston, Illinois, and died about November 3, 1904, leaving an estate of upwards of $500,000; that said John B. Kirk left a will, by the first paragraph or clause of which all furniture, household goods, etc., were devised to the appellee, Susie McVean Kirk. The second paragraph or clause of said will reads as follows:
    “Second: — All the rest and residue of my estate I give, devise and bequeath as follows: One-third (l-3rd) to my said wife; one-sixth (l-6th) to my son, Frederick Irving Kirk; one-sixth (l-6th) to my daughter, Josephine Kirk; one-sixth (l-6th) to my daughter, Susan Kirk, and the remaining one-sixth (l-6th) to my said wife, upon the following trusts: To pay the income thereof to my son, James Milton Kirk, for the support of himself and family so long as he shall live, and upon his death to pay the whole of the trust estate, with accumulations, if any, to such person or persons as my said son, James Milton Kirk, shall, by last will and testament, appoint, or in case of failure of such appointment, to my heirs at law who shall then be living, in such shares' as they would receive if the same descended to them as intestate estate.
    My wife may appoint a successor in trust by written instrument in her lifetime, or by last will and testament. My wife, as trustee, and any successor in trust appointed by her, may make .advances to said'son, James Milton Kirk, from the principal of the trust estate, whenever she or her successor deems it for the best of my said son so to do. Full power and discretion is given to my said wife and any successor whom she may appoint, to make such'advances, even to the whole amount of the trust estate, but my said son shall not have the right to compel any such advance, nor the right to anticipate the payment to him of any portion of the trust estate, either income or principal, and the same shall not, nor shall any part thereof, be liable to be taken by his creditors, and if my son shall commence any legal proceedings to compel any payment to him from the principal of said trust estate, against the discretion of my said wife, or any successor in trust whom she may appoint, he shall forfeit all interest in my estate.
    Full power is given to my said wife, as trustee, and to any successor in trust whom she may appoint, to invest-any portion of the trust estate, and to change the investment thereof from time to time subject, however, to the provisions hereinafter contained, and said trustee, or any successor whom she may appoint, may sell and convey any real estate or interest in real estate which may, at any time, belong to the trust estate, and the purchaser need not look to the application of the purchase money. My wife shall not be required to give any bond as trustee, but any successor in trust shall be required to give bond.”
    The bill further alleges that the complainants are informed that Susie McVean Kirk, appellee, as trustee, has paid certain portions of the income of the trust estate since the death of John B. Kirk in November, 1904, to the appellee James M., and that the said James M. has certain proceeds of the said trust fund now in his possession and refuses to account to the complainants or to any of them for any portion thereof; that Susie McVean Kirk has never paid to any one of the complainants any portion of the income but refuses to do so; that complainants are informed and believe that the said Susie McVean Kirk has not made advances from the principal of the trust estate to the said James M., but bas retained said principal intact and lias only-paid over certain portions of the income thereof to James M.
    The bill further alleges that the -will of John B. Kirk was duly, admitted to probate in Cook county, Illinois, and that the estate at the time of the filing of the bill was in process of administration; that complainants are informed that the income from the trust estate received by James M. amounts to mose than $6,000 per annum, and that the principal of the trust estate consists of bonds and stocks, and particularly of stock in James S. Kirk & Co. of the value of $100,000.
    The prayer of the bill is that the defendant be required to account to the complainants for all of the income of the trust estate received by them or either of them, and to pay over to the complainants and each of them the share of said income to which each is equitably entitled, and that the defendants or one of them may be decreed to make provision for the proper support and maintenance of complainants, according to the station in life of the said James M. Kirk. An injunction is asked against defendants restraining them from disposing of all or any portion of the income of said trust fund until further order of the court.
    In her answer the appellee, Susie McVean Kirk, stated that on January 27, 1905, by an instrument of that date under seal, she elected in pursuance ©f the discretion conferred upon her by the will to convey, and did convey, all of the property which had or might thereafter come into her possession, ownership and control under and by virtue of the trust of James M. created by the will of John B. Kirk, and that since that date she has not had in her possession or control any portion of the property so left in trust; that the estate of the said John B. Kirk was declared to be settled and that she, as executrix, was discharged in the Probate Court on December 21,1907.

      Eddy, Haley & Wetten, for appellants; Aethue J. Eddy, of counsel.
    Chipman & Jackson, for appellee, James M. Kirk; G-eoege E. ChipmaN, of counsel.
    Holt, Wheelee & Sidley, for appellee, Susan Mc-Yean Kirk.
   Me. Justice Clabk

delivered tlae opinion of the court.

The first question we are called upon to decide is whether or not the demurrer filed by the appellee James M. Kirk was properly sustained. The determination of this question involves the construction of the second paragraph of the will above set forth, in so far as it creates a trust of one-sixth of the testator’s estate, the language used being, “to pay the income thereof to my son, James Milton Kirk, for the support of himself and family so long as he shall live, ’ ’ etc.

The contention of the appellants is that the word “family” should be held prima facie to mean'children; that the words of the will just quoted when properly construed establish a trust for the benefit of the children of the appellee, James Milton Kirk; that while the will contemplated the payment of the income direct to James Milton Kirk, the intention of the testator was that if James Milton Kirk should not use the income or a portion of it for- the support of his family, or children, then the duty was imposed upon his mother, the trustee, to divide the income among him and his four children.

Appellees, on the other hand, insist that the words “for the support of himself and family” merely indicate the motive for the gift to James Milton Kirk, which is absolute in its terms and cannot be cut down or affected by the addition of such words; that by the word “"family” in the will is meant the persons from time to time residing in the household of J ames M., of which he was the head; that even if it he conceded that there is a trust in favor of the family of James M. under the father’s will, the appellants are not, while residing apart from their father’s household, entitled to be considered as beneficiaries under the will.

- It is an elementary principle of law that in construing a will courts of equity will consider the facts and circumstances surrounding the testator as they existed at the time the will was made. Wallace v. Foxwell et al., 250 Ill. 616. When the will now under consideration was made the appellee, James Milton Kirk, was married and living with his wife, Madeline. The oldest of his children, the appellants here, was born during that year, but some months after the execution of the will. The will of course took effect on the date of the death of the testator. Between the making of the will and the testator’s death circumstances had changed. The four complainants were born and a divorce had been granted to Madeline from their father, James M., who was not, and had not been for some time prior to the testator’s death, supporting the wife or the children.

Appellants’ contention as heretofore stated is that .the “family” of James M. consisted at the time of the death of his father of the four children, and that notwithstanding the appellee James M. remarried some time after his father’s death, his second wife is not entitled to her support from the income of the trust estate and that the children, if there are any, of the second marriage are also not entitled to their support from such income, but that the whole of the income must be divided among the four children appellants and James M. upon some equitable basis, the exact terms of which are not stated in the bill but presumably are to be fixed by the court in the decree.

The case cited by the appellants which they persuasively argue is peculiarly in point is that of Chase v. Chase, 84 Mass. 101. The language used in the will involved in that case is as follows: “To pay the.income and interest thereof to my son, Philip Brown Chase, of Philadelphia, every year during his natural life for the support of himself and family,” etc. After holding that it was the intent of the testator to give the benefit of the income of the trust fund created by his will to the wife and children of his son Philip, as well as to the son, the court said:

“The trustee who by the terms of the will holds the principal in trust, out of which the income is to be raised and paid over to the son Philip for the support of himself and family, is a resident in this commonwealth. Upon satisfactory proof that the income is misapplied by the sub-trustee, to whom by the will he is directed to pay it, the court can enjoin the trustee, who is within the jurisdiction, from making further payments, and pass such decrees in relation to the future disposition of the income as the rights of the cestui que trust may in equity require.”

This decision was rendered in 1861, and the contention of appellees is that it has in effect been overruled by later cases in Massachusetts, viz: Taft v. Taft, 130 Mass. 461; Aldrich v. Aldrich, 172 Mass. 101; Lloyd v. Lloyd, 173 Mass. 97; Pitts v. Milton, 192 Mass. 88.

In the last named case, after holding that no express trust was created, the court says:

‘ The intention of the testator when ascertained must control, and for this purpose the entire clause, which is the only portion of the will appearing in the record, must be considered. ’ ’

In the second paragraph of the will we are now considering, the testator provided that upon the death of his son, James M., the whole of the trust estate, with accumulations, should be paid not to the children of James Milton but to “such person or persons as my said son, James Milton Kirk, shall by his last will and testament appoint,” or, in case of failure of such appointment, to the heirs at law of the testator. The will further gives full power and discretion to his wife, as trustee, or her successor “To make advances from the principal of the trust estate, even to the whole amount thereof, to James Milton Kirk. ’ ’ It provides that he shall not have the right to compel such advances, nor to anticipate the payment to him of any portion of the trust estate, either income or principal. The testator by this clause did not leave it discretionary with the trustee to withhold the income or any portion of it from his son James Milton.

While the trust has been characterized in the argument as a “spendthrift trust,” it is apparent that the testator had sufficient confidence in his son to induce him to provide for the payment to the son of the entire income, without leaving it to the discretion of his wife, as trustee, to determine whether or not payment of the income should from time to time he withheld. The will is different from that in the case of Chase v. Chase, supra, to the extent that in the latter case the will provided that upon the decease of the son the trustees or survivor of them should divide the principal of the trust fund then in their hands in equal portions among all the issue of the said son. In the case before us, the testator showed his confidence in his son by providing that the estate, with accumulations, should at the death of the son go to the persons named by him in his will, if he left such will.

The attitude of the testator in the respects mentioned tends, in our opinion, to negative the idea that the testator at the time he made the will had it in mind to create a trust in favor of the unborn children of his son, and to impose upon his wife, as trustee, the power and duty to divide the income of the trust estate in her discretion between the son and the son’s children if there were any at the time of the testator’s death.

The case before us is distinguishable from that of Brooks v. Raynolds, 59 Fed. Rep. 923, cited by appellants. In the will involved in the case last mentioned the testator in unmistakable terms authorized his executor to withhold from the son all or any part of the income of the trust fund.

In the case of Kehoe v. Ames, 96 Me. 155, cited by appellants, the payment of the income was by the will also expressly left to the discretion of the trustee, and the reversion and remainder of the trust estate on the death of the cestui que trust named in the will were devised to the lawful issue of the cestui que trust.

In Summers v. Higley, 191 Ill. 193, also cited by appellants, the court had before it a will devising to the testator’s wife all of his estate, “to be used by her for her own support and for the maintenance and education of my children as herein named, to-wit, Laura A. Summers, Edward Summers, Martha A. Summers and. William Summers.” By the second paragraph of the will the wife, as executrix, was empowered fo bestow sums of money on the father of the testator from time to time in case of his becoming so infirm as to be unable to support himself. The third paragraph of the will provided that in case the death of the wife of the testator occurred before any of the children theretofore named attained their majority, whatever of the estate should be left when the youngest child arrived at the age of twenty-one years should be divided among the children share and share alike. The court held that the intention of the testator to create a trust was made clearly apparent by these two paragraphs of the will.

Our attention has been called by the appellees to the following cases decided by the Supreme Court of this state: Bryan v. Howland, 98 Ill. 625; Randall v. Randall, 135 Ill. 398; Allen v. McFarland, 150 Ill. 455; Maurer v. Bowman, 169 Ill. 586; Dee v. Dee, 212 Ill. 338.

In Bryan v. Howland there was a conveyance to a parent in trust for his son, and to permit the son “to use, occupy, possess, enjoy, improve, rent and build upon the said tracts of land in any manner he may deem best, for the support, maintenance and benefit of himself and his children, during his natural life.” It was contended that the son was a trustee ior the children. In overruling the contention the court said:

“Undoubtedly the motive in vesting the property thus was to furnish means to aid Henry Allen Howland in supporting and maintaining himself and children. But although the courts have gone to great lengths in holding language expressive of a wish or request sufficient to establish a trust, it has never been held that the mere expression of the motive for a grant, etc., is sufficient to establish a trust. ’ ’

The court quotes with approval Perry on Trusts (page 119):

“But no trust is implied where the words simply state the motive leading to the gift, as, where the gift is to a person to enable him to ‘maintain the children,’ or an absolute gift is made, and the motive stated ‘that he may support himself and children.’ ”

In Randall v. Randall the will was that of the wife vesting title of the property whereof she might die seized or possessed, in her husband, the language used being, “To provide, to the extent of my ability, for the support and education, of such of my children as shall be unmarried and minors, and such of the married or adult ones as may, by innocent misfortune, become really needy, I give and bequeath to my beloved husband, Sylvester "W., the father of my children, all my property, whether real, personal or mixed, that he may use the same for the maintenance and education of my said children, and that he may, from time to time, advance to each of them, as he may deem best, to start them in life. ’ ’ The court held that no trust was created which constituted the children beneficiaries, and reiterated what was said in Bryan v. Howland — “No trust can be implied merely from the words indicating the motives which induced the gift. ’ ’

In Allen v. McFarland the language of the will was: “I leave all my ¡iroperty in the hands of my wife, Cecelia Matilda Allen, to manage to the best interests of our children and herself.” Upon a bill being filed to compel the widow to account to the children for the rents and profits, on the theory that the children had an equitable interest therein, the court held that no trust was created in favor of the children.

In Maurer v. Bowman a case was presented where the testator bequeathed his property to one of his creditors, who was a brother-in-law, and the following language was used: “To have the proceeds, rents, profits and issues thereof, for the purpose of paying my debts, including his own claims against me hereinafter stated, and for the purpose of rearing and educating my children, and for the support of my wife should she need it.” The court held that a decree dismissing a bill for an-accounting brought by the heirs of the testator should be affirmed, and based its decision largely upon Randall v. Randall, supra.

In Dee v. Dee the language of the will in controversy was: “I give and bequeath to my beloved wife, Hanorah Dee, all of my property, both real and personal, to her use during her life or as long as she shall remain my widow, to receive all the rents and profits thereof, for the benefit of my family, and at her decease to be divided as follows, to-wit,” etc.: The court said:

“Authorities cited by the appellant show that the devise of the property to Hanorah Dee to her use, for the benefit of another or others, specifying them, is the proper formula for the creation of a trust for the benefit of such other or others. The difficulty about the ap-lication of this doctrine in the present case is the fact that the term here used is ‘for the benefit of my family. ’ Did the testator by that expression mean to require an equal division of the rents and profits among his wife and all his children, giving one twelfth to each? If so, a trust was created. If, on the other hand, it was the mere expression of the purpose or motive which moved him in making this devise, no trust exists.”

The court held further that there was no question but that after the death of his wife it was the intention of the testator that his property should be divided among Ms cliildren, and that, in the opinion of the conrt, if it had been his purpose to have the income from the property divided in the same manner or divided equally among the children and their mother he would have used language indicating that purpose with greater certainty.

So, too, in the case now before us, we are of the opinion that if the testator, John B, Kirk, had intended to protect the wife of his son or the unborn children from the improvident acts of the son, he would have used language clearly indicating that intention, and would have authorized and directed his wife; as trustee, to withhold from the son from time to time such portions of the income as might be necessary to effect the intention.

Our conclusion therefore is that the words, “for the support of himself and family,” merely express the purpose or motive which moved the testator to make the devise, and create no trust.

We feel that this conclusion is fully sustained by the decisions of our own Supreme Court, as well as by many decisions in other jurisdictions, to which we have been cited, among others the following: Crandall v. Hoysradt, 1 Sandf. Ch. 40; Clarke v. Leupp, 88 N. Y. 230; Small v. Field, 102 Mo. 104; Mason v. Sadler, 59 N. C. 148; Rowland v. Rowland, 29 S. C. 54; Rhett v. Mason’s Exrs., 18 Graft. 541; Seamonds v. Hodge, 36 W. Va. 304; Smith’s Estate, 27 Pa. Superior Court 494; Mackett v. Mackett, 14 L. R. Eq. Cas. 49.

Having held that the court properly sustained the demurrer of the appellee James M. Kirk, it is unnecessary for us to consider the questions raised upon the answer of Susie McYean Kirk. In our opinion the court would have been justified in entering a decree dismissing the bill without referring the cause to a master upon the answer.

The decree will be affirmed.

Decree affirmed.


author: Mr. Justice Clark

text:
    Nellie Moore, Appellant, v. Illinois Commercial Men’s Association, Appellee.
    Gen. No. 15,911.
    1. INSTRUCTIONS — wllen repetition of ,particular phrase not ground for reversal. In an action upon an accident insurance policy, held, that the frequent repetition of the expressions "external, violent and accidental means" and "independently of all -other causes,” was not ground for reversal.
    2. Insurance — burden of proof in action upon accident policy. In an action for death predicated upon an accident insurance policy, held, that the burden of proof is upon the plaintiff to show that the death was due to external, violent and accidental means independently of all other causes.
    Appeal from the Municipal Court of Chicago; the Hon. John E. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed November 14, 1911.
    FREdeeick A. Brown and William B. T. Ewen, Jr., for appellant.
    James Maher, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

Suit was brought'by the appellant against the ap-pellee, which is an accident insurance association doing business on what is known as the assessment plan, upon a contract of insurance with John J. Moore, the husband of the appellant, in which contract the appellant was made beneficiary, the policy providing for the payment of $5,000 to the beneficiary in the event of the death of the insured resulting from bodily injury received through external, violent and accidental means.

There was a trial before the court and a jury and a verdict in favor of the appellee. After overruling a motion for a new trial, the court entered a judgment in favor of the appellee and against the appellant for costs.

The assignments of error relied upon by the appellant for reversal of the judgment are, first, that the court erred in instructing the jury; second, that the verdict is manifestly against the weight of the evidence ; third, that the court erred in refusing to admit the testimony of a physician as to what the insured had stated to him immediately preceding the death of the insured.

It appears.from the record that the insured, who was a traveling salesman, died in Eagle Grove, la., on June 11, 1907. The contention of appellant is that his death was due to an accident received by him at his residence in Des Moines, la., June 2, 1907, nine days before his death. There was no direct proof .of this so-called accident, but the appellant insists that the circumstantial evidence contained in the record is sufficient to establish the fact that it occurred in the manner stated.

The appellant testified that on the morning of June 2, 1907, the insured came down to breakfast about 8:30, with his coat and vest and collar in his hand; that he was rubbing the back of his neck, and held his head back “as if he was favoring it;” that he looked paler than usual; that he ate his breakfast the same as usual, and held his head back and continued to rub his neck during the day; that he did a good deal of writing during the day, which was Sunday, and retired about 8:30 in the evening; that on the following day he arose about nine o’clock and appeared to be about the same as on the day before; that he left his house about ten o’clock and returned about three o’clock in the afternoon, lay down, and about eight o ’clock in the evening again retired; that on Tuesday he left the house about nine o’clock and that on this day “he pushed liis hat down on his head tight and looked silly like a half witted person;” that on Wednesday he received treatment from an osteopath, returned to his home about three o’clock and retired about eight o’clock.

The evidence further discloses that his movements on the nest few days were of about the same character, and that on the following Monday he went to Eagle Grove, la.; that on the next day he was found on the floor of the room of his hotel completely paralyzed, though conscious for a time, and died about an hour thereafter. An autopsy was had and a blood clot was found at the base of the brain, the result of a hemorrhage, but the exact spot or place where the lesion which caused the hemorrhage occurred was never found. There was no mark on his body of any sort which would indicate that he had received an injury from external sources sufficient to cause death.

It appears that the deceased was accustomed in his lifetime to take physical exercise such as swinging his arms outward in an endeavor to touch his hands behind his back, and the like.

By the terms of the policy, the application for membership was made a part of the contract, as were also the by-laws. One of the provisions of the by-laws is:

“Whenever any member of this association in good standing shall, through external, violent and accidental means, receive bodily injuries which shall within six months from and after the date of said accident and independently of all other causes result in the death of said member, ’ ’ etc.; another provision is to the effect that “the association shall not be liable to any person for any indemnity or benefit for injuries or death* * * in case such injuries shall occur as the result, wholly or partially, directly or indirectly of * * * disease, bodily or mental infirmity.”

In their argument the attorneys for the appellant complain of the charge of the court to the jury, largely upon the ground that it contains twenty or more times the expression external, violent and accidental means,” and the expression “independently of all other canses.”

We have carefully read the charge, as it appears in the abstract of record, and find that it contains several instructions evidently given at the request of the appellant, or at least based upon the appellant’s theory of the case. While the repetition in many of the instructions of the words heretofore referred to may have been more frequent than necessary, we do not think, in view of other instructions given to the jury, that their repetition is ground for reversal of the judgment.

The charge is further alleged to he erroneous because it is based upon the assumption that the burden of proof was on the plaintiff to show that the death was due to external, violent and accidental means, inde-pently of all other causes, and the appellant insists that the burden was not so upon her. The case of Continental Life Insurance Co. v. Rogers, 119 Ill. 474, is cited as bearing upon this question. As we read that decision, it refers to matters which appear in the application only, and has to do with warranties and representations made by the insured, and is not authority for the proposition advanced by appellant that in an action for death by accident, upon a policy such as the one before us, an insurance company must plead and establish as .a fact that the insured died from disease --and not from, .accident. t The holding of the U. S. Circuit Court of Appeals in a recent case (Illinois Commercial Men’s Ass’n v. Parks, 179 Fed. 794) is that the burden of proof is on the beneficiary, under a policy of apparently the same form as that which we are now considering, not only to establish that the injury from which death ensued was accidental, but that such accidental injury was the sole cause of death, independently of any pre-existing disease or bodily infirmity as a contributory cause thereof. This was also the conclusion reached in National Masonic Acc. Ass’n. v. Shryock, 73 Fed. 774, and Commercial Tray. Mut. Ass’n. v. Fulton, 79 Fed. 423, and we agree with snch conclusion.

Counsel for appellee argues with great force that the undisputed evidence in the case before us conclusively shows that there was no accident; that the death of the insured was from disease and not from bodily injuries which are shown to have .been in any sense occasioned through external, violent and accidental means, and he insists that the court should have directed a verdict for the appellee. It is not necessary, however, for us to determine this question, because the court, under very full instructions, submitted the case to the jury to determine the facts, and the jury has found them adversely to the appellant.

It is urged upon us by the appellant that the verdict is manifestly against the evidence and that for that reason the judgment should be reversed.

In the proofs of loss the so-called accident is said to have occurred on June 2, 1907, the language used in the proofs being, “While deceased was stretching himself while lying in bed by throwing his arms over his head, his body resting on the back of his head and heels.” There was no evidence tending to show that the deceased stretched himself while lying in bed, or that he threw his arms over his head, with his body resting on his head and heels, as stated. The only testimony that can in any way be said to bear upon the matter is that of his wife, who described his manner as he came to the breakfast table on that morning and other testimony to the effect that he was accustomed to exercise himself in some such way as heretofore set forth.

These facts were submitted to the jury, together with the testimony of several doctors called by the two parties to the controversy. The jury saw and heard the witnesses and were in much better position to determine as to their credibility or the lack of it than are we. We therefore would not feel justified in overriding their judgment in the matter, even if we were not of the opinion that the evidence offered by the appellant was of snch doubtful weight as to make it questionable whether the court should not have directed a verdict in favor of the appellee.

The third point urged upon us as ground for reversal of the case is that the court erred in refusing to admit the testimony of the physician as to what the insured said to him immediately preceding the death. The point was not argued to any extent hy either of the parties, and we understand the appellant is not claiming the testimony to have been admissible except on the theory that death was due to some accident which occurred on June 11,1907, as set out in the second special count. We fail to find any evidence upon which the theory of an accident occurring on June 11th can be successfully predicated. We think, therefore, that the court did not err in excluding this testimony.

We find no error in the record, and the judgment will be affirmed.

Judgment affirmed.


author: Mb. Justice Clark

text:
    Alexander S. Joslin, Appellee, v. Ella G. Hull Fuller, Appellant.
    Gen. No. 15,927.
    1. Judgments — when authentication as to existence in compliance with federal statute. The fact that a judgment was entered and that there is a record thereof if shown by the authentication, is a compliance with the federal statute.
    2. Judgments — when authentication in compliance with federal statute. 'Held, that the judgment sued upon in this case was authenticated in accordance with the federal statute, it appearing that the certifying clerk had custody of the seal and records of the court entering the judgment and that such clerk was the official clerk of the court entering the judgment in question.

      3. Judgments — what not valid objection to transcript of sister state. Tlie absence of the placita is not a valid objection to the introduction of the transcript purporting to show a judgment of a sister state.
    4. Judgments — what objections not available upon introduction of transcript of sister state. If the transcript of the judgment of a sister state is duly certified under the acts of Congress, objections which do not go to the question of jurisdiction are unavailing.
    Action of debt. Appeal from the Superior Court of Cook county; the Hon. Willaed M. ' McEwen, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed November 14, 1911.
    Samuel H. Trude, for appellant.
    Garnett & Garnett, for appellee; Eugene H. Gab-nett, of counsel.
   Mb. Justice Clark

delivered the opinion of the court.

Judgment was had in this case in an action of debt on a judgment alleged to have been entered in the Sixty-first Judicial District Court of Harris County, Texas, on March 17, 1908.

The objections raised to the first transcript of record at the trial were, “That there is no placita appearing-on the face of the record; that there is no good judgment as stated in the declaration; that it is not properly authenticated by the clerk or judge; that the judgment is informal and insufficient.”

From this transcript it would appear that the plaintiff, who is the appellee here, obtained a judgment against the defendant, the appellant here, in the sum of $4,284.70. It also shows that an execution was issued on said judgment, which resulted in the sale of certain property for the sum of $500, the amount obtained on which sale, less the sum of $113.80, being the sheriff’s costs and fees, having been credited upon the judgment.

There was also received in evidence a supplemental transcript showing a second partial satisfaction of the judgment. The same objections were raised to the introduction of this transcript as to the introduction of the first transcript.

It is insisted by the appellee that these objections, for the most part at least, were of such a general character that they should not be considered. Calumet Dock Co. v. Morawetz, 195 Ill. 398.

It appears from the record that the court below, upon complaint of appellant’s counsel at the trial that he had not had sufficient time to examine the transcripts, permitted the introduction of them, at the same time stating that he would give the appellant an opportunity to amplify his objections and would hear argument upon them later. This was not done except on the motion for a new trial, when the objections were set out with somewhat more particularity, and we have considered them in their amplified form. These objections are that neither of the transcripts purported to be a true copy of the alleged judgment and proceedings, but only copies of the minutes or memoranda in the cause; that said transcripts were not properly authenticated by the clerk and judge of said District Court of the Sixty-first Judicial District of Harris County, Texas, and in accordance with the Act of Congress in that said Henry Albrecht did not certify in his certificate dated October 15, 1908, that he is the clerk of the District Court of the Sixty-first Judicial District of Harris County, Texas; that neither of said transcripts contains a.placita; that a plea of nul tiel record having-been filed, the court erred in admitting the transcripts over the objection of the defendant, because the transcripts did not purport to contain the full records and proceedings in the District Court of the Sixty-first Judicial District aforesaid, but only portions of the same; that neither of said transcripts showed or tended to show that the District Court aforesaid had jurisdiction of the person of tlie defendant, first, because said transcripts did not show the organization of the court, tbe term of said court or the judge who presided at the trial, or that the said judge who heard and entered the judgment was the same judge who certified to the transcript; second, that the transcripts only tended to show a portion of the records of the court; third, because the transcripts did not show the name of the defendant in the title of said cause. It is further contended that there was a fatal variance between the transcripts and the declaration;' that neither of the said transcripts showed that the said judgment was entered during the March term, 1908.

Section 905 of the Federal Statutes provides:

“* * * qtj16 recor¿}s an(j judicial proceedings of the courts of any State or Territory, or of any such country, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, that the said attestation is in due form. And the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the Courts of the State from which they are taken. ”

Section 13 of Chapter 51 of Revised Statutes of Illinois reads as follows:

“The papers, entries and records of courts may be proved by a copy thereof certified under the hand of the clerk of the court having the custody thereof, and the seal of the court, or by the judge of the court if there be no clerk.”

The transcripts before us are headed, after the title of the cause, “In the District Court of Harris County, Texas, Sixty-first Judicial District.”

The certificate of the clerk begins as follows: “I, Henry Albrecht, clerk of the District Court of Harris County, Texas, having by law the custody of the seal and all the records, books, documents and papers of or appertaining to said court, do hereby certify,” etc.

The certificate of the judge begins, “I, Norman G-. Kittrell, judge of the District Court of the Sixty-first Judicial District, in and for Harris County, Texas, do hereby certify that said court is a court of record having a seal, and that Henry Albrecht is the duly elected, qualified and acting clerk of said court,” etc.

Then follows the certificate of the clerk certifying that “the Honorable Norman Gr. Kittrell, whose genuine signature appears to the foregoing certificate, was at the time of signing the same, the judge of said District Court in and for the Sixty-first Judicial District, Harris County, Texas,” etc.

The first objection urged by the appellant to the sufficiency of the transcripts is that they purported to be copies of minutes or memoranda in the cause, and not a true copy of the judgment or proceedings. It is true the transcripts contained much more than was needed to show that a judgment had been entered. People v. Paul, 143 Ill. App. 566. The transcripts show that the copy of the judgment was taken from a judgment record, giving the volume and page in which the same was to be found. Whether the book in which the record was made is called a minute book or has some other designation does not seem to us to be important. The fact that a judgment was entered and that there is a record of that judgment is sufficient, in our opinion, to comply with the Federal statute, as well as with section 13 of chapter 51 above set forth.

We think also that the authentication is sufficient. Section 13 requires that the record be certified under the hand of the clerk of the court having the custody thereof. The certificate before us shows that the clerk had custody of the seal and records of the court, and it also includes this language: “And also a true and correct copy of judgment rendered in said cause in the Sixty-first District Court of Harris County, Texas, on March 17,1908, as the same appears of record in my office in the minutes of said court, in Yol. 5, page 371.”

The judge of the District Court of the Sixty-first Judicial District certifies that Henry Albrecht is the clerk of the court for the Sixty-first Judicial District.

The next objection raised is that neither of the transcripts contains a placita. In the case of McMillan v. Lovejoy, 115 Ill. 498, it was held that in an action upon a judgment of another state it is not a valid objection to the transcript that it shows no placita. This case also is authority for the proposition that when the transcript of a judgment duly certified under the act of Congress is offered in evidence in another state than that in which the judgment is entered no questions are open to inquiry except those of jurisdiction.

The next point urged is that the transcripts are insufficient in that they do not show the organization of the court, the term of said court, or the judge who presided at the trial, or that the said judge who heard and entered the judgment was the same judge who certified to the transcripts; that the 'transcripts only tended to show a portion of the records of the court, and do not show the name of the defendant in the title of said cause.

In the case of Light v. Eeed, 234 Ill. 626, it was held:

“The certificate of the clerk certifying that the record is complete must be presumed to be correct, and ciinnot be impeached by a mere inference that some portion of the transcript not shown to be a necessary part of the record is absent. ’ ’

In the same case the following language is used:

“It appears from the record introduced in evidence that the appellant appeared in the Indiana Court and that there was a trial by jury and a verdict against the appellant for $20,000, and the judgment of the conrt npon the verdict recites that ‘it is therefore considered, ordered and adjudged by the conrt that the plaintiff have and recover of and from the defendant herein the snm of $20,000, together with his costs herein laid ont and expended’. This wonld seem to be all that is essential to show a valid judgment.”

While the objections to the transcripts should have been made at the trial, so that appellee might be given an opportunity to obviate the objections by proof (Calumet, etc., Dock Co. v. Morawetz, supra), the appellant did not .show in her motion sufficient grounds in our opinion to entitle her to a new trial.

We have carefully considered all the points raised in the briefs and argument of appellant, and find no error in the record such as would justify a reversal of the judgment, and it will therefore be affirmed.

Judgment affirmed.


text:
    C. Helmer Johnson, Administrator of the Estate of William Peat, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,933.
    1. Evidence — when admission of ordinance will not reverse. If the evidence is contradictory as to whether horses were unattended, notwithstanding the Appellate Court may he of opinion that such horses were not unattended at the time of the accident in question, the admission of an ordinance which makes it a misdemeanor to leave any horse or other animal attached to any vehicle in any public street in the city without securely fastening such horse or other animal, will not reverse.
    2. Instructions — when failure to confine jury to negligence averred, will not reverse. Such a failure will not reverse if the facts as shown in the record do not tend to establish or raise the presumption that the servants of the defendant had been negligent otherwise than as averred in the declaration.
    3. Instructions — when do not estop upon question of identity. Instructions which assume that the deceased was plaintiff’s intestate do not estop the defendant to urge upon review the question of the lack of identity.
    4. Pleading — what not admitted Toy general issue. The plea of the general issue does not admit that the person killed was in fact the plaintiff’s intestate.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed November 14, 1911.
    James Maher and C. LeKoy Brown, for appellant.
    JohNSoh & Belasco, for appellee; Joel Baker, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

Suit wag brought by the appellee as administrator of the estate of William Peat, against the Chicago City Railway Company and Schwarzschild & Sulzberger Company, appellants, for wrongfully causing the death of the said William Peat.

There was a trial before the court and a jury, resulting in a verdict in favor of the plaintiff and against both defendants. A separate appeal was taken by each of the defendants, the cases being consolidated for argument. The appeal of Schwarzschild & Sulzberger Company appears as General Number 16040 in this court. (Post, p. 56.)

The accident happened on May 18,1906, at about five o’clock in the afternoon, near the corner of State and Forty-seventh streets, in the city of Chicago. Forty-seventh street runs east and west, and State street north and south. It appears that a two-horse team of tlie Schwarzschild & Sulzberger Company, attached to what is called a turn-table wagon, was left unattended and unfastened on the north side of Forty-seventh street, about 75 to 100 feet west of State street, while the driver went into a saloon. While the driver was in the saloon the horses stepped on the sidewalk and stood at rightangle or nearly so to the body of the wagon. A street ear from the east came along. Upon the step at the forward end of the car it is claimed the plaintiff’s intestate was standing, and as the car was moving along the front end of the wagon was backed into it in such a way as to cause the plaintiff’s intestate, as alleged, to be thrown from the car and injured. It is asserted that the car and platform were crowded, and that plaintiff’s intestate was attempting to get through the crowd on the platform and into the car. It is claimed that death followed about seven hours after the accident, due to the injuries so sustained.

The first count of the declaration charges general negligence on the part of the Chicago City Railway Company in driving, managing and operating its car, and general negligence on the part of Schwarzschild & Sulzberger Company in driving, managing and controlling its team.

The second count charges negligence on the part of the Chicago City Railway Company in driving, managing and operating its car, and the violation on the part of S. & S. Company of an ordinance of the city of Chicago, in failing to fasten the horses as required by the ordinance, and that by and through the negligence of both defendants the intestate was injured.

The third count charges negligence fa managing and operating the car, with failure of the S. & S. Company to have the horses attended in the street and allowing the horses and wagon to back towards the approaching car, whereby the intestate was injured.

A separate plea of the general issue was filed by each of the defendants.

"We shall consider both appeals in one opinion.

The errors alleged by the Bailway Company, because of which they insist the judgment should be reversed, are that the judgment is contrary to the law and the evidence because there is no evidence that plaintiff’s intestate was injured in connection with the occurrence testified to, and no evidence that he died as a result of injuries so received; that there is no evidence whatever of the exercise of any care by the man who was injured; that there is no evidence which shows both the exercise of care by the injured man and negligence by the Bailway Company; and that the overwhelming-preponderance of the evidence shows that the accident took place in the manner testified to by the witnesses for the 'Bailway Company, and that according to this version the Bailway Company was not liable. It is further insisted that the court erred in instructing the jury.

On the part of the S. & S. Company the same points are made, excepting as to the non-liability of the Bail-way Company, and two additional grounds are stated: first, that the evidence shows that the S. & S. Company was not guilty of negligence; and second, that the court erred in admitting in evidence the ordinance referred to in the declaration.

We will first consider the second of these alleged errors. The ordinance referred to makes it a misdemeanor to leave any horse or other animal attached to any vehicle in any public way in the city, without securely fastening such horse or other animal. Whether or not the ordinance should have been received in evidence depends on whether or not the horses were unfastened and unattended at the time of the accident. All of the witnesses except one asserted that the driver was at the horses’ heads at this time. There was a controversy between the witnesses as to whether or not the accident was due to his negligence in causing the wagon to be backed into the ear. On this point there was sharp contradiction in the testimony of the witnesses for the two appellants. The testimony of the witnesses for the appellee tended to support the contention of the Railway Company in this respect. One witness testified that there was no one at the horses’ heads at the time of the accident. While in our-opinion the driver was at the horses’ heads at the time of the accident, still we should not feel it our duty to reverse the case on the ground that the ordinance ieferred to was improperly admitted in evidence.

The appellant S. & S. Company insist that the case should be reversed because of the giving to the jury of the following instruction tendered by the Railway Company:

“16. The court instructs the jury that you have the right and. should find your verdict against one of the defendants in this case if you believe from a preponderance of the evidence that the negligence of such defendant through its servant or servants was the cause of the accident and that negligence of the other defendant did not cause or proximately contribute towards causing the accident, but in no case should you find a verdict against the defendants or either of them unless you believe that at the time of the accident in question the deceased, William Peat, was in the exercise of ordinary care for his own safety. Ordinary care is such care as a reasonably prudent person would ordinarily exercise under the same or like circumstances.”

It is averred that this instruction is wrong because it did not confine the jury to the negligence averred in the declaration. We think the facts as shown in the record do not tend to establish or raise a presumption that the servants of either defendant had been negligent otherwise than as averred in the declaration, and the instruction therefore was not improper. Chicago City Railway Co. v. Tuohy, 196 Ill. 410; Springfield Con. Ry. v. Puntenney, 200 Ill. 9-12.

We have carefully considered the objections raised to instructions given at the instance of the plaintiff in the court below, and in passing upon them will say simply that we think in connection with instructions given on behalf of the defendants they correctly stated the law of the case to the jury, and that no error which should cause reversal appears.

We do not think that the case should be reversed on the ground that there is no evidence that the man who was injured exercised any care for his own' safety. That, in our judgment, was a question which was properly left to the jury to be determined from all the facts and circumstances of the case. It was for the jury to determine whether or not plaintiff’s intestate, if he was the person injured, could have seen the truck, and if so whether he could and should have alighted from the car in time to have avoided the accident. In a case very similar the Supreme Court held that the court below did not err in refusing to direct a- verdict for such lack of proof. Math v. Chicago City Ry. Co., 243 Ill. 114.

We now have to consider the point raised by both appellants that there is no evidence that appellee’s intestate died as a result of the injuries sustained in the occurrence upon which the suit is based. This question presents the greatest difficulty. The record is singularly lacking in any direct proof establishing the identity of the plaintiff’s intestate with this accident. Our attention has been called to the direct examination of the witness Wickstrom. This witness was asked the question, “Did you witness an accident to a man named Peat?” His answer was, “Yes sir.” On cross-examination he stated, “I did not know the person that was hurt out there at Forty-seventh and State streets.” This testimony of itself would not be sufficient proof that plaintiff’s intestate was the person injured in this accident. On cross-examination by the attorney for the S. & S. Company of two witnesses called by the Railway Company, allusion was made to a coroner’s inquest held shortly after the accident, but there is no testimony to establish the fact that that inquest was held over the body of William Peat. The assertion is made by the attorneys for the appellee in their brief that such was a fact. We have, however, looked in vain in the record for any proof of this assertion. The daughter of plaintiff’s intestate testified that her father died seven hours after the accident in the Baptist hospital. She did not say what accident, and had no knowledge herself of any accident. The appellee further insists that the appellants are estopped now from claiming that there was no proof of the identity of plaintiff’s intestate as being the person injured on the day in question, by the instructions tendered by them, because these instructions assume that the decedent was William Peat, the plaintiff’s intestate. The following cases seem to be authority for the contrary doctrine: Illinois Central R. R. Co. v. Nowicki, 148 Ill. 29; West Chicago St. Ry. Co. v. Liderman, 187 id. 463; North Chicago Street Ry. Co. v. Cossar, 203 id. 608; Illinois Central R. R. Co. v. Swift, 213 id. 307.

It is further asserted by the appellee that the plea of the general issue admitted the identity of William Peat, plaintiff’s intestate. It is true that by filing no plea other than the general issue the appellants admitted the right or capacity in which the plaintiff sues; that is to say, that 0. Helmer Johnson, the plaintiff, was duly appointed administrator of the estate of William Peat and that William Peat is dead. They did not, however, admit that William Peat was the person alleged to have sustained the injuries on the day in question. No testimony was offered by the appellee as to the extent of the injuries received by the person who was injured. The case seems to have gone to the jury upon the assumption that because there was proof that William Peat died seven hours after the accident that his death was due to the accident. If it he admitted that the person injured was William Peat, and that he died seven hours after the accident at a hospital, the inference would be very strong that his death was occasioned by the injuries received. We think, however, that there should have been some testimony as to the extent of the injuries and as to the treatment given after the accident, so that the direct cause of intestate’s death might not be a matter of mere inference or conjecture. Prom all that appears in the record, the injuries may have been of the slightest character and insufficient to cause death, or they may have been so serious as to make it perfectly apparent that death directly ensued therefrom. We cannot tell.

In our opinion the motion for a new trial should have been allowed, and the judgment will therefore be reversed and the cause remanded.

Reversed and remanded.


text:
    C. Helmer Johnson, Administrator of the Estate of William Peat, Deceased, Appellee, v. Chicago City Railway Company et al. On Appeal of Schwarzschild & Sulzberger Company, Appellant.
    Gen. No. 16,040.
    This ease is controlled by the decision in Johnson v. Chicago City-Railway Co., ante, p. 49.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the Oe-tober term, 1909.
    Reversed and remanded.
    Opinion filed November 14, 1911.
    "Winston, Payne, Strawn & Shaw, for appellant; John D. Black and John C. Slade, of counsel.
    Johnson & Belasco, for appellee; Joel Baker, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

Judgment was obtained in this case against the appellant jointly with the Chicago City Bailway Company, and a separate appeal was taken by each of the defendants. The appeals were heard together, and the opinion of this court filed this day in case General Number 15933, on the appeal of said Chicago City Bailway Company, is decisive of the present appeal. (Ante, p. 49.) For the reason therein stated, the judgment will be reversed and the cause remanded.

Reversed.and remanded.