text:
    Louise Hopkins, Appellee, v. Fred Whelan, Appellant.
    Gen. No. 6,727.
    1. Damages, § 200

      —when instruction erroneous. An instruction, given at the request of the plaintiff, in an action for personal injuries, that if the jury found certain things therein specified, they should find the defendant guilty and assess such damages as they should “believe the plaintiff to be entitled to from the evidence” in the case, is improper.
    2. Appeal and erbob, § 1650*—when erroneous instruction may be cured. Semble, that error in giving an instruction at plaintiff’s request which leaves the jury entirely free to impose such damages as they see fit may be cured if the jury are instructed in another of plaintiff’s instructions to award plaintiff fair compensation.
    3. Damages, § 209*—when instruction erroneous. Where, in an action to recover for personal injuries, the declaration charges that plaintiff had been forced to expend a large sum of money in being cured and had been unable to work and follow her usual employment, and there was proof that the coat which she had worn at the time of the accident was badly damaged but no claim was made in the declaration therefor; of the number of times she had been treated by physicians, though none of their charges nor of the reasonable worth of their services; of her having indications of goiter at the time of the trial, but not sufficient medical testimony, in that regard; of the wages she was receiving and the length of time that she was absent after the accident, but none, or at most very slight, as to whether this absence was due to the injury; of optical troubles suffered by her after the injury, but no medical or expert proof in that regard, it is error to instruct the jury that if they find defendant guilty they shall assess such damages as they “shall believe the plaintiff to be entitled, to from the evidence,” and that to t assess the damages, it is not necessary that any witness shall have expressed an opinion as to the amount of the damages, but the jury may themselves make such estimate from the evidence, considered in connection with their observation and experience in the affairs of life.
    4. New trial, § 85*—waiver of grounds not specified in motion. One who makes a motion for a new trial and files written points in support thereof, which do not include alleged improper remarks of the court as one of such grounds, waives objection on that ground.
    5. Appeal and erbob, § 1561*—when refusal of instructions harrn
      less. The refusal of requested instructions is not ground for reversal where they were embodied in other instructions given at the same party’s request.
    Appeal from the Circuit Court of Winnebago county; the Hon. Robebt K. Welsh, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and remanded.
    Opinion filed March 9, 1920.
    Reynolds & Reckhow, for appellant.
    Lathrop, Lathrop & Brown, for appellee.

      See Illinois Notes Digest, Yole. XI to XV, ‘Viui Cumulative Quarterly, same; topic and section number.

   Mr. Justice Dibell

delivered the opinion, of the court.

On the evening of December 19, 1917, Louise Hopkins was struck and injured by an automobile owned and driven by Fred Whelan. She brought this suit to recover damages from him for said injuries and had a verdict and a judgment for $2,000, from which defendant appeals.

Plaintiff was a clerk in an office in Rockford, and lived at her father’s home in. the country. She was returning home at night from her' work and had with her a brother returning from school. They rode on a street car to the end of the line, then walked south on the west sidewalk of a street until after they reached the city limits and soon there was a path down towards the central part of the road which > they followed. There was a macadam road. In the center was a tar surface, variously estimated at from 18 to 24 feet in width, and on each side of that and somewhat lower was the macadam with sand upon it. This macadam and sand was about 6 feet wide. Plaintiff and her brother were going south. Defendant with his automobile came up behind them. Plaintiff introduced evidence tending to show that she and .her brother were each upon the lower level on the sand and macadam, her brother at the west side of that part and she next to Mm, and that she was there struck without knowledge that an automobile was approaching. If the jury believed tMs evidence they could find that defendant was negligent and that plaintiff was in the exercise of due care. Defendant introduced evidence tending to show that he was at all times on the tarred surface, and that just before he reached the place of the injury plaintiff,- without looking back, turned east and went upon the tarred surface a few feet in front of his automobile, and that he stopped as soon as he could. If the jury believed this evidence it warranted a finding that defendant was not negligent and that plaintiff was guilty of contributory negligence which should bar a recovery. It was therefore important that the jury should be accurately instructed.

The fifth instruction, given at the request of plaintiff, told the jury that if they found certain things therein specified, they should find the defendant guilty and assess such damages “as you shall believe the plaintiff to be entitled to from the evidence in this case.” TMs instruction has been many times condemned where plaintiff was not entitled to punitive damages, because it not only would authorize punitive damages if the jury thought plaintiff was entitled thereto, but also would turn the jury loose to determine for what damages should be awarded, without any guide from the court. We collected the earlier authorities against such an instruction in La Porte v. Wallace, 89 Ill. App. 517. It had since-been condemned by the Supreme Court in Muren Coal & Ice Co. v. Howell, 204 Ill. 515; Illinois Cent. R. Co. v. Johnson, 221 Ill. 42, and Fowler v. Chicago & E. I. R. Co., 234 Ill. 619. It has been condemned by Appellate Courts of the different districts in Galesburg Elec. Motor & Power Co. v. Barlow, 98 Ill. App. 334; Malott v. Woods, 109 Ill. App. 512; Chicago, B. & Q. R. Co. v. Kuck, 112 Ill. App. 620; Central Ry. Co. v. Ankiewicz, 115 Ill. App. 380; Illinois Cent. R. Co. v. Becker, 119 Ill. App. 221; and Boggs v. Iowa Cent. Ry. Co., 187 Ill. App. 621. In other cases it has been held that where another instruction laid down the true rule of compensation, such other instruction might cure the error in a proper case. Springfield Consol. Ry. Co. v. Puntenney, 200 Ill. 9; Illinois Terminal R. Co. v. Thompson, 210 Ill. 226; Fitzgerald v. Benner, 219 Ill. 485. In this case the seventh instruction, given at the request of plaintiff, directed the jury under the case stated to award fair compensation to plaintiff. Therefore, under the authorities last cited, if the case is otherwise satisfactory, the error may have been cured.

The sixth instruction, given at the request of plaintiff, told the jury that to enable them to estimate the amount of damages sustained by plaintiff as charged in the declaration, it was not necessary that any witness should have expressed an opinion as to the amount of such damages but the jury may themselves make such estimate from the evidence, considered in connection with their observation and experience in the affairs of life. This instruction was good as to physical injury and suffering, and would have been entirely proper if plaintiff’s allegations and proof had related only to such injuries. But the declaration in this case charged that plaintiff had been forced to expend a large sum of money in being cured and that she had been unable to work and to follow her usual employment. Such elements of-damages are capable of pecuniary measurement and it is necessary that the amounts be proven. As to such allegations and proof this instruction was erroneous. We so held and cited authorities in support thereof in Harley v. Aurora, E. & C. Ry. Co., 149 Ill. App. 339; and Moore v. Aurora, E. & C. Ry. Co., 150 Ill. App. 484. See Steeve v. Smith, 153 Ill. App. 630; Krakowski v. Aurora, E. & C. Ry. Co., 167 Ill. App. 469; Lyman v. Chicago City Ry. Co., 176 Ill. App. 27; Hatcher v. Quincy Horse Railway & Carrying Co., 181 Ill. App. 30; Barton v. Southwick, 185 Ill. App. 24. There was proof that a fur coat or cloak, worn by plaintiff, was very badly torn and practically destroyed. It was proper to permit it to be described in the evidence because it tended to show the severity of the injuries inflicted upon plaintiff, but the declaration did not claim any damages for injury to clothing and there could be no recovery for the injury to that garment. Yet when the jury were told that they could estimate the damages from the facts in connection with their observation as men and that they should give plaintiff such damages as they believed she was entitled to from the evidence, the jury might well believe that they were authorized and required to allow her reasonable compensation for the destruction of that garment. The declaration claimed a recovery for what she had expended in being cured. She was first attended by Dr. Green, who was in France at the trial. There was proof of the number of times Dr. G-reen attended her on the farm at her father’s home and the number of times she had been treated by him at his office, but no proof what she was charged or what she paid for such services nor what they were reasonably worth. The jury were authorized by instructions 5 and 6 to form a judgment of their own as to the value of those services and to include them in their verdict. Plaintiff testified that at the time of the trial she had indications of what she supposed to be a goiter, and there was very slight medical testimony by an osteopath that this might have been caused by this accident. The jury may have allowed plaintiff compensation for that under these instructions, although we think the evidence insufficient. Plaintiff proved what wages she was receiving for work at the time of the injury, and gave the date many months later when she went back to work. The evidence that her long absence from work was due to this injury is very slight and seems to have been excluded and there are no cross errors on that subject. With that evidence out of the record there was no sufficient proof to justify the jury in allowing her wages for all that period of time, and yet under these instructions the jury may have felt at liberty to do so. Plaintiff testified that since she went back to work she sometimes had specks floating before her eyes. There was no medical or expert proof that this could have been attributed to her injury, and yet the jury under these instructions may have allowed her therefor.

Defendant complains of remarks by the court in ruling on the evidence. He made a motion for a new trial and filed written points in support thereof and did not include improper remarks by the court as one of the grounds for which he asked a new trial. He therefore waived that objection. Yarber v. Chicago & A. Ry. Co., 235 Ill. 589, on p. 602. Counsel for appellee frequently interrogated defendant on cross-examination as to whether he was arrested that night. The court sustained objections to these questions, but they were persisted in. We suggest that it would be wise not to repeat that cross-examination in another trial, if the proof is the same as at the first trial. We find no other error in the rulings of the court, inasmuch as the instructions requested by defendant and refused, of which complaint is made, were embodied in other instructions given at defendant’s request.

For the reasons above stated the judgment is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    Amelia Dupuis, Appellee, v. Harry Kipnis et al., Appellants.
    Gen. No. 6,739.
    1. Appeal and error, § 994

      —when denial of leave to file plea not before court. On appeal the action of the trial court in denying a motion for leave to file a plea of the Statute of Frauds is not before the court where the application for leave to file such plea, the showing made on the motion and the ruling of the court thereon are not preserved in the bill of exceptions.
    2. Appeal and error, § 742*—improperly filed plea not part of common-law record. The action of the clerk below in filing a plea which the court refused leave to file does not make such plea a part of the common-law record.
    3. Landlord and tenant, § 35*—when person not signing lease bound. When one party to a lease has executed it and the other party has accepted it, the latter is hound by its terms and conditions as completely as if he had signed the paper, even though he did not in fact sign it.
    4. Appeal and error, § 1392*—what questions raised by motion to direct a verdict. The refusal of a motion by defendants, asked at the close of all the evidence, to direct a verdict in their favor raises on appeal the question whether there is any evidence in the record to warrant a verdict for plaintiff.
    5. Tender, § 7*—when insufflciéht. In an action to recover rent, a plea of tender is insufficient where the amount tendered was the rental of the premises for two months and did not include the costs accrued up to the time of the filing, which was long after the action was commenced and issues had been joined, and there was evidence of defendants’ having left property on the premises for part of another month which would have warranted a finding by the jury that they had thereby occupied the premises for such additional time.
    6. Appeal and error, § 1303*—what presumed in favor of verdict. Where, on appeal by defendants, the denial of a motion for a new trial is not assigned as error, it must be assumed that where the evidence for plaintiff and for defendants was conflicting the jury were warranted in finding for plaintiff.
    7. Landlord and tenant, § 40*—when delivery of lease to lessee not essential to validity. Where the lessees of premises have signed the lease and delivered it to the lessor who has delivered the possession of the premises to them and they have accepted such possession and the lessor has signed the lease, it is not essential, to render the lease binding on the lessees, that it shall have been delivered back to them.
    8. Landlord and tenant, § 41

      —what constitutes taking possession uniter lease. The act of one who, after signing as lessee a lease which provides that he shall not sublet without the written assent of the lessor, except to a certain tenant then in possession, notifies such tenant that he can remain if the lessor sees fit and notifies other tenants to move, authorizing one of them to remain until he can find another place, amounts to taking possession of the premises under the lease.
    Appeal from the Circuit Court of Carroll county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed March 9, 1920.
    J. L. Brearton, for appellants.
    F. J. Stransky, for appellee.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

Amelia Dupuis brought this action of debt ag*ainst Harry Kipnis and Mildred Kipnis, his wife, to recover rent from April 1, 1918, to February 1, 1919, under a lease dated March 27, 1918, whereby it was alleged that plaintiff demised to defendants certain reoal estate described, located in Savanna, Carroll county, from April 1, 1918,. to April 1, 1921, at $45 per month. The suit was begun on February 7, 1919, and the declaration charged the nonpayment of rent for the months above specified. The lease was made a part of the declaration. Defendants filed a plea, alleging that they signed the lease and delivered it to plaintiff for her to sign and deliver to them, and that she did not sign it and did not deliver it to them, and that they made repeated demands therefor, which she refused, and that before plaintiff had signified her intention to sign and deliver the lease and before she did deliver the lease to defendants, they notified plaintiff withdrawing their offer to lease the premises and refused to accept the lease, and that thereafter the defendant, Harry Kipnis, vacated that part of the premises which he had occupied as a tenant from month to month prior to April 1, 1918; so that said lease is not the written obligation of the defendants. This plea concluded .to the country and plaintiff added a similiter.'

Thereafter, by leave of court, plaintiff filed the consolidated common counts. Defendants then filed, a plea of tender and of nonassumpsit in one consolidated plea, on which plaintiff joined issue. Afterwards there was a jury trial, and a verdict for plaintiff for the sum of $325. Thereafter defendants asked leave to file a plea of the Statute of Frauds, which motion was denied, but the plea was filed by the clerk. The application for leave to file said plea, the showing made on that motion, the ruling of the court thereon and the plea, are not preserved in the bill of exceptions and therefore are not before the court. The action of the clerk in filing the plea which the court refused leave to file does not make the plea a part of the common-law record. A motion for a new trial was denied, judgment was entered on the verdict and defendants appeal.

In the transactions herein involved, John Leu acted as agent for the plaintiff, his mother, and Harry Kipnis acted also for his wife. Kipnis was a junk dealer and had been in possession- of a portion of these premises as a tenant of plaintiff from month to month at $12.50 per month. Other portions ' of the premises were occupied by other tenants from month to month. Kipnis wanted to rent the entire premises for 3 years. Negotiations between Kipnis and Leu caused a lease to be prepared by plaintiff’s attorney and taken to the attorney for defendants, who made changes. The lease was then signed by Harry Kipnis and he took it home to his wife and she signed it, and it was then delivered to Leu, to obtain Ms mother’s signature. The pleadings described it as one lease and the witnesses generally so called it, but it seems that in fact it was executed in duplicate and both originals were given to Leu to obtain Ms mother’s signature. She signed it at some time to be hereafter discussed. It was not immediately returned to Kipnis. Kipnis asked Leu for it more than once, and finally told Leu that they would not take the premises unless the lease was delivered to them, and claims fixed Monday, April 15, as the last day on which they would accept the lease. It is a disputed question whether or not Leu tendered the lease to Kipnis on the day or two or three days later. When it was tendered, Kipnis refused to receive it, and about the 1st of June he removed from the premises and he paid no rent under the lease.

It is the contention of the defendants that it was necessary that the lease should be signed by plaintiff and delivered to them, and that until it was so delivered back to defendants the lease signed by them was a mere offer on their part from which they had a right to withdraw. Plaintiff contends among other things that she accepted the lease and also that she signed it before they attempted to withdraw and also that Leu tendered the lease to Kipnis before the latter attempted to withdraw from the contract. It seems to be well settled in this State that when one party has executed such a paper and the other party has accepted it, the latter is bound by its terms and conditions as completely as if he had signed the paper. Among cases so holding are- Ames v. Moir, 130 Ill. 582; Memory v. Niepert, 131 Ill. 623; Forthman v. Deters, 206 Ill. 159; Miers v. Charles H. Fuller Co., 167 Ill. App. 49, on p. 56. In Memory v. Niepert, supra, Lowber v. Connit, 36 Wis. 176, is cited as supporting tMs proposition. It is clear that plaintiff did accept the contract, and under these authorities she had a right to enforce the lease against defendants.

Defendants argue that the preponderance of the evidence should have brought the jury to a different conclusion on several questions, but, as the record is here presented, their right to question the -findings of the jury on questions of fact is very limited. The assignments of error here do not question the overruling of the motion for a new trial. Defendants did ask an instruction directing a verdict in their favor at the close of all the evidence, which was refused, and that properly raised the question whether there is any evidence in the record to warrant a verdict for plaintiff. The plea of tender admitted $25 due plaintiff. That plea was insufficient. It was filed long after the suit was begun and long after issues had been joined and it did not tender the costs accrued up to the time of filing the plea of tender. Again, it v/as only tender of the rent of the premises originally occupied by Kipnis as a tenant from month to month and it was only for the months of April and May, 1918, whereas the proof shows that when Kipnis moved out about June 1, 1918, he left upon the premises paper amounting to from one-half a ton to 2 or 3 tons and also some junk, which junk he afterwards removed, so that the evidence warranted the jury in finding that he occupied even those premises for a part of June. The court therefore properly denied said instruction. As the denial of the motion for a new trial is not assigned for error, we must assume that where the evidence for plaintiff and for defendants was conflicting, the jury were warranted in finding for plaintiff. Leu and Kipnis met at Williamson’s garage. There is evidence tending to show that this was on Saturday, April 13, or Sunday, April 14. There is other evidence that that meeting was one week earlier. There is evidence that plaintiff had signed the lease before that meeting and that Kipnis was then notified that the lease had been signed. There is other evidence that the lease was not signed until later and that Kipnis was not so notified until later. Kipnis claims that he had notified Leu that he would withdraw from the contract unless the lease was delivered to him on Monday, April 15, and that it was not so delivered. There is other evidence that the statement by Kipnis was not so imperative and that the lease was tendered by Leu to Kipnis on Monday, April 14, and that Kipnis then refused to receive it, and also that before April 16 it was taken to his office, but not left there because he was not there. The lease provided that defendants should not underlet without the written assent of plaintiff, except to the present tenant in the store building. There is evidence in the record that after defendants had executed the lease and delivered it to Leu and Leu had taken it to his mother and she had accepted it and perhaps signed it, Leu told the tenant in the store building that arrangements had been made so the defendants could let him stay in that store if they saw fit and that Leu notified the other defendants that they must get out; that Kipnis then notified the tenant in the store building that he could stay, and notified the other tenants that they must move, and that when one of them said he would move as soon as he could find another place, Kipnis told him that would be all right. Some of this evidence is denied and some of it is not, but we must assume that the jury found the above facts established. In other words, Kipnis did that which amounted to taking possession of all of the premises described in the lease. The question then is whether, when the lessees have signed the lease and delivered it to the lessor, and the lessor has delivered possession of the premises to the lessees and the lessees have accepted such possession, and the lessor has signed the lease, is it essential to bind the lessees that the lease should be delivered back to the lessees. Have they under such circumstances such a legal right to the possession of the lease that until it is delivered to them, they can withdraw from the contract? We are of opinion that under the principles stated in the cases above cited and under well-recognized rules of law, the tenants are bound. If error had been assigned upon the overruling of the motion for a new trial, we see no reason to disturb the verdict of the jury, approved by the trial judge, but without that assignment of error it is clear in our opinion that the verdict cannot be disturbed.

The judgment is therefore affirmed..

Affirmed.

Mr. Justice Heard took no part.


text:
    Emma F. Allen, Appellee, v. Estate of Henry P. Allen, Deceased, Appellant.
    Gen. No. 6,743.
    1. Bills and notes, § 375

      —what is prima facie evidence of consideration. The statement in a negotiable promissory note or other contract in writing that it is for value received is prima facie proof of consideration.
    2. Conflict of laws, § 12*—what law governs instrument for payment of money. A written instrument for the payment of money is to be construed according to the law of the place where it was made.
    3. OoMMtoN law, § 7*—what presumed as to another State. In the absence of proof to the contrary, it is presumed that the common law obtains in another State.
    4. Contracts, § 224*—how instrument providing for payment on, sale of certain property construed where death intervenes before sale. A daughter’s right to recover against her father’s estate on an instrument, signed by the father and his wife, which reads: “I promise to pay Emma F. Allen [the daughter] for value received, three thousand dollars ($3,000) without interest. To be paid when the farm is sold,” is not defeated by the fact that the father died without selling the farm, but the contract implies that the farm was to be sold in a reasonable time and that it shall be due and payable after such time has elapsed.

      5. Contracts, § 215

      —what deemed basis of promise by father to pay daughter. It is a reasonable conclusion that a written promise by a father to pay his daughter for value received a certain amount when his farm should be sold was given to compensate the daughter for her services in caring for her mother, who was an invalid for many years, requiring much attention, and for doing the housework necessary for her father and the hired men living in the house.
    6. Contracts, § 300*—what is reasonable time for performance. Where a written promise by a father to pay his daughter a certain amount when his farm is sold, which is also signed by the mother, is dated May 10, 1908, and the father died in 1915 and the mother in 1917, it is properly held that a reasonable time for the sale of the farm had elapsed.
    7. Interest, § 59*—time from which allowed. On a written promise to a daughter, signed by her father and mother, to pay such daughter a certain sum when the father’s farm is sold but which farm was not sold before his death, such daughter may properly be allowed interest from the date of the mother’s death, which occurred about 9 years after the date of the promise.
    8. Executors and administrators, § 292*—when allowance of claim for services does not preclude recovery on separate promise. The fact that a daughter was allowed a claim against her father’s estate for services rendered in nursing her mother after the date of a written promise by the father to pay her a certain sum “for value received” does not affect her right to recover against the estate on such promise.
    Appeal from the Circuit Court of Whiteside county; the Hon. Emery C. Graves, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed March 9, 1920.
    Frank J. Bowman and Henry C. Ward, for appellant.
    Doerfler, Bender & McIntyre and McCalmont and Ramsay, for appellee.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

Emma F. Allen filed a claim in the county court of Whiteside county against the estate of her father, Henry P. Allen, deceased, upon an instrument in writing for the payment of money, which was attached to the claim. It was allowed in the county court and again in the circuit court, where it was tried without a jury upon an appeal prosecuted by the administrator. The administrator now appeals to this court.

The instrument was dated at Madison, Wisconsin, on March 10, 1908, and was signed by Allen and his wife, and the body reads as follows: “I promise to pay Emma F. Allen for value received, three thousand dollars ($3,000) without interest. To be paid when the farm is sold.” Allen owned a farm in Whiteside county, Illinois, and he owned no other farm, and that was the farm referred to. He died without selling it, though his heirs at law have since contracted to sell a part of it. The estate contends that the instrument is not a negotiable promissory note and that the payee cannot recover upon it without proving that Allen sold the farm, and as he did not sell it, no recovery can be had. The instrument says it is for value received. If it is a negotiable promissory note, that is prima facie proof of consideration. Hoyt v. Jaffray, 29 Ill. 104; Randolph on Commercial Paper, secs. 178, 563, 1663. If it is not a negotiable promissory note, still the words “for value received” are prima facie proof of a consideration. In 1 Moore’s Civil Treatise (4th Ed.), sec. 83, it is said: “The admission in a contract in writing that it is made for value received or for a valuable consideration is prima facie evidence of a sufficient consideration for such contract. ’ ’ The fourth headnote to Meyers v. Phillips, 72 Ill. 460, is as follows: “Where a promise to pay money is averred in the declaration to have been made for value received, it will be sufficient proof of a consideration to show a' written promise to pay for value received.” Therefore, whatever view may be taken of the instrument sued on, it contains prima facie proof of a valuable consideration. No evidence was offered to show a lack or failure of consideration. This instrument, therefore, is conclusively shown to have been made for an adequate consideration. The supposed condition as to time of payment, “when the farm is sold,” could not be performed by the payee, but only by Henry P. Allen. The language is not “If the farm is sold,” which might be held to imply an uncertainty in the minds of the parties whether the farm ever would be sold, but it is “when the farm is sold,” which may fairly be held to imply that it was intended by the parties that the farm should be sold.

Similar language in like instruments has frequently been discussed in other jurisdictions. In Nunez v. Dautel, 19 Wall. (U. S.) 560, an instrument for the payment of money had this provision as to the time of payment: “This we will pay as soon as the crop can be sold or the money .raised from any other source.” The court, said:

“No time having been specified within which the crop should be sold or the money raised otherwise, the law annexed as an incident that one or the other should be done within a reasonable time, and that the sum admitted to be due should be paid accordingly. Payment was not conditional to the extent of depending wholly and finally upon the alternatives mentioned. The stipulations secured to the defendants a reasonable amount of time within which to procure in one mode or the other the means necessary to meet the liability. Upon the occurrence of either of the events named or the lapse of such time, the debt became due. It could not have been the intention of the parties that if the crop were destroyed, or from any other cause could never be sold, and the defendants could not procure the money from any other source, the debt should never be paid. Such a result would be a mockery of justice.”

In Sears v. Wright, 24 Me. 278, the instrument was in terms a promissory note except that as to time and source of payment it said: “From the avails of the logs bought of Martin Mower when there is a sale made.” The court said: “His agreement in terms was to wait until the logs could be sold. Thus the defendants had a duty to perform. They were bound to sell the logs and to do it within a reasonable time. A reasonable time for such purpose had long since elapsed.” Redman v. Adams, 51 Me. 429, was a. suit by an indorsee upon an accepted order for the payment of money which also contained the following: “And charge the same against whatever amount may be duo me for my share of fish caught oh board schooner ‘Morning Star’ for the fishing season of 1860.” It was contended that the order was not negotiable and that the indorsee could not maintain the action. The court held that it was negotiable; that a means of reimbursement is indicated to the drawees, “but the payment of the order is not made to depend upon his having any share of fish.” Crooker v. Holmes, 65 Me. 195, was litigation over an instrument which was an ordinary promissory note except that as to time of payment it said: “Payable when I sell my place where I now live in Oxford, Maine. ’ ’ Of this provision the court said: “The maker of the note is to make sale within a reasonable time to enable him to discharge his indebtedness.” Page v. Cook, 164 Mass. 116, 28 L. R. A. 759, was upon an instrument which the opinion calls .a promissory note, which as to time of payment said: “Payable when payor and payee mutually agree.” The court held that that it could not have been the intention of the parties to enable defendant to escape payment by refusing to agree with plaintiff when it should be paid, and that it was more reasonable to construe it as meaning that it was payable when and after the payor ought reasonably to have agreed. The court further said:

“The promise to pay is absolute. It is only the time of payment which is left to further agreement. Evidently, it is expected, from the tenor of the note, that the parties will agree, and that a time will be fixed, and that the note will be paid. But no time is fixed within which the agreement is to be made. The law will therefore imply a reasonable time. Besides, it is the payment, not the nonpayment of the note, for which the parties are providing. If the payor does not, within a reasonable time, agree when the note shall be paid, there is nothing unjust, nor at variance with the real meaning of the contract, in holding that the payee may thereupon demand payment, and, if the note is not paid, proceed to collect it.”

Ubsdell v. Cunningham, 22 Mo. 124, was an action upon two instruments in the form of promissory notes, except that one of them said the money was to be paid “as soon as collected at Pokeepsie, now in the hands of Horace B. Potter of that place,” and the other “to be paid as soon as collected from my accounts at Pokeepsie.” There was evidence that some of the accounts had been collected before suit was brought, that unsuccessful efforts had been made to collect the rest, but that the accounts were now collectible. It was contended by defendant that the obligation to pay was conditional and the condition had not happened. The court said that both notes contained direct acknowledgment of indebtedness. “And we think the subsequent words ‘to be paid,’ etc., were not intended to show that the debts were conditional, depending for their existence as valid demands against the makers, upon the fact that the sums to be paid could be collected out of the accounts referred to, but only to prescribe the time of payment, by reference, not to days and years, but to a reasonable time for the collection of the accounts. This construction is warranted by the language used, and we have no doubt will execute the real intention of the parties.” In Randall v. Johnson, 59 Miss. 317, the writing sued on, for the payment of a sum certain with interest, fixed the time of payment as “ninety days after the first return trip of the schooner ‘Mary Bloom.’ ” The schooner was lost at sea on her first trip and did not return. The court held that the true interpretation of the contract was that the contract assumed that the schooner would certainly return within a few months in regular course, and that as the schooner was lost at sea and could never return, the money promised became payable 90 days after the expiration of the period of time usually required for a return trip of the schooner. “It would be ‘a mockery of justice’ to hold that, because the schooner was lost at sea, and therefore had not made her first return trip, the appellee lost his debt.” Hicks v. Shouse, 17 B. Mon. (Ky.) 483, was a suit on an instrument for the payment of money, and the payment was to be “as soon as-1 sell a house and lot in the City of Lexington, bought of C. J. Sanders and wife.” The house and lot had not been sold. Defendant contended that he was not required to pay until the house and lot were sold. The court held it was a reasonable construction that the house and lot were to be sold within a reasonable time or the money paid without a sale, and that defendant’s argument led to an absurdity and would do violence to all reasonable calculation as to the intention of the parties, and. that a reasonable time had elapsed for the sale. Williston v. Perkins, 51 Cal. 554, was a suit on an instrument for the paymént of money “when the three-masted schooner now in course of construction by said association is-sold.” The court held that defendants were entitled only to a reasonable time in which to finish and sell the schooner, and that time having elapsed, plaintiff could maintain the action. Jones v. Eisler, 3 Kan. 128, was a suit on an instrument for the payment of money “when I receive it from government for losses sustained in August, 1856, or as soon as otherwise convenient.” The court said: “The first question presented by the record is, when did the note sued on become due? The note is not a conditional one. The maker owed the payee, who had performed labor for him. He declares in the paper that he has received the consideration, which all must admit was a valuable one. The existence of the debt was not made to depend upon a condition or contingency. Everything necessary to constitute a promissory note, except the time of payment, is clearly expressed. As to the time the language is peculiar. It could not have been contemplated that if Jones never got his money from the government, or never should be in a situation when he could conveniently pay, that the money never was to be payable. Jones evidenly expected, within a reasonable time, to get money from the government, or, failing in that, within a like time it would otherwise be convenient to pay. After having performed work to the full amount of the note, it could not have been intended that Andres should never get his money unless Jones got his from the government, or should find it otherwise convenient to pay. The intention of the parties, doubtless, was that it should in any event be payable in a reasonable time, and such is the legal effect of the instrument. ’ ’

In Benton v. Benton, 78 Kan. 366, 97 Pac. 378, the instrument sued on was an agreement to pay money “as soon as I can.” It was construed to be payable within a reasonable time and that plaintiff’s pleading was not required to allege that defendant had the financial ability to pay. In Smithers v. Junker, 41 Fed. 101, 7 L. R. A. 264, the suit was on an instrument for the payment of money “payable at my convenience, and upon this express condition, that I am to be sole judge of such convenience and time of payment.” It was averred that after a reasonable time had elapsed payment was demanded and refused. It was held that the instrument imported an obligation to pay a specific sum of money and that the language above quoted should not be construed to destroy that obligation, and that when payment was demanded after the lapse of 5 years the debt became due, and that such contracts should be construed liberally in favor of payees. From these and other cases cited and stated in 7 Cyc. 857, 858; 8 C. J. 412, 413; and 13 C. J. 684, 685, and in the notes on those pages; and in 3 R. C. L. 906, 907, and in 6 R. C. L. 896 to 898, the conclusion is drawn by the authors of those articles that such instruments are due and payable after the lapse of a reasonable time for the performance of that which is made an apparent condition, but which is not to be performed by payee, where the words indicate a convenient time for payment.

.Appellant contends that the foregoing principles are not the law of this State, and relies upon Chicago Trust & Savmgs Bank v. Chicago Title & Trust Co., 190 Ill. 404. That case differs in many respects from the one now under consideration. The conditions written into that instrument for the payment of money were to be performed by the payee, and had not been performed. That instrument referred to another writing between the parties and the two were held to be parts of the same transaction, and construed together they were an ordinary contract for the performance of certain services and an agreement to pay therefor a certain sum. This was held not to be a negotiable instrument. The payee had merely indorsed it without recourse, which did not amount to an assignment of such a contract, and it was the indorsee who was seeking to enforce it. We conclude it has no bearing on' this case. Our attention is not drawn to any Illinois case deciding this precise question, but a similar qufestion has been passed upon in this State in harmony, as we think, with the authorities above cited. In Horner v. Starkey, 27 Ill. 13, the question was whether there had been a new promise to pay certain notes, sufficient to take the case out of the statute of limitations. The maker had said that if the payee would wait a while, he would pay the notes; that he was not then in a condition to pay them, bqt that “when he made a raise,” he would do so. It was argued that this was a conditional promise, to be performed upon the happening of an event which was not shown to have transpired. The court held that “he meant to convey the idea that he would certainly pay the debt, but wanted further time to do so. The idea he designed to convey was that he would make exertions and as soon as possible would pay the debt.” When that case was again before the Supreme Court in Sennott v. Horner, 30 Ill. 429, the court stated that it had carefully reviewed the law and saw no reason to modify its previous conclusion, nor to again discuss the question whether or not the promise was unconditional. In Walker v. Freeman, 209 Ill. 17, which related to the making of a like new promise to pay a promissory note, it was held that a promise to pay every cent was not made conditional by the statement that the maker would pay when he was able, and the like. In Buchholz v. Feustel, 179 Ill. App. 396, this court held that a promise, “I will pay you when I get the big church built,” only fixes the time when he will pay, and was not a conditional but an absolute promise and made the maker liable, while, if he had said: “If I get the contract to build the big church, I will pay you,” that would have been a conditional promise and it would have been essential to prove that he did get the contract to build the big church. We find nothing in the Illinois decisions not in harmony with the views expressed in the cases we have above cited.

But this instrument was made in Wisconsin and is to be construed by the laws of that State, and appellant contends that in Wisconsin this was a conditional contract and that the money was not due if the farm was not sold. Appellant relies on Blake v. Coleman, 22 Wis. 415. That was a suit on a promissory note in the usual form, but there was indorsed on the back thereof and shown by parole to have been there when the note was signed, these words: “The conditions of the within note are as follows: L. S. Blake or bearer is not to ask or expect payment of said note until his Coleman’s, old mill is sold for a fair price.” The oral proof showed that defendant gave this note for a fanning mill, which he bought of plaintiff, and that defendant had an old fanning mill on hand when he gave this instrument. The court held that this condition qualified the note, and that the action could not be sustained without showing that, the-condition had been fulfilled. The case then was that defendant was induced to buy a new mill by an agreement that he should not pay for it until he sold the old one. It would more resemble the ease before us if the $3,000 here .agreed to be paid arose out of the purchase of this farm by Allen. In Corbett v. Clark, 45 Wis. 403, an order, otherwise absolute, for the payment of money contained these words: “And take the same out of our share of the grain.” The long discussion there, and the numerous authorities cited and discussed, lead us to the conclusion that the Supreme Court of Wisconsin is in harmony with the other authorities we have before cited. At the conclusion of the discussion the court said: “By a proper construction of these words in the bill, and by the authorities, we are clearly of the opinion that this order is a valid bill of exchange, and is not payable out of a particular fund or conditionally, but absolutely, and that the words are used merely in reference to the means by which the appellants, the acceptors, might reimburse themselves for its payment, and that the defenses set up were unavailable.” Moreover there is no proof that the common law does not prevail in Wisconsin, and the presumption arises that it does prevail there. Schlee v. Guckenheimer, 179 Ill. 593; Dalton v. Taliaferro, 101 Ill. App. 592.

Claimant further proved that at the date of this note, her mother, Catherine L. Allen, the other maker of the note, had for many years been afflicted with a disease which made her incapable of much bending of her knees or her elbows; that her hands were much drawn out of shape; that much of the time she could not walk; that she could not wash herself, dress herself, or comb her own hair; that part of the time she required assistance in feeding herself at the table; that she suffered pain which made it necessary that her limbs be frequently massaged; that she had to have pads between her knees and between her ankles, that she had to have the bed clothing upon which she lay kept very smooth and free from wrinkles; that these services had generally been performed for her by claimant for many years; that Allen was in the ice business and had hired men living in the home; that claimant not only had general care of her mother during the daytime, but usually did all the housework, though sometimes when extra men were employed a man was also' hired to assist. Appellant says that for aught that appears she may have been paid for these services. True, but there was no proof that she was paid and no presumption of payment. The proof shows that this note was prepared by a nephew at the instance of the mother, and it is a reasonable conclusion that it was intended to compensate claimant for these services in the family and to the mother. The giving of this instrument precludes any claim that these services were rendered under the family relation. While claimant was not required to introduce evidence of a consideration, further than that covered by the words "value received” in this note, yet she saw fit to show what was evidently the real consideration. We are of opinion that the estate should not now be permitted to say that her parents intended to mock claimant by a promise to pay her $3,000 which the father might defeat by simply failing to sell his farm. We conclude that the contract, whether it be a negotiable promissory note or not, implies that the father was to sell his farm. The note was dated May 10,1908. Allen died February 16, 1915, and the mother died March 21, 1917. The court properly held that a reasonable time for the sale of the farm had elapsed. Even if the court might reasonably have held that, interest at 5 per cent per annum began to run with the death of Allen, yet at the request of claimánt, the court only allowed interest from the date of the death of the mother, more than 2 years later.

Appellee also filed a claim against her father’s estate for nursing her mother after the date of the note here sued on. That claim was allowed in the county and circuit courts. We affirmed the judgment in Allen v. Estate of Allen, 215 Ill. App. 653. The Supreme Court denied a certiorari. Nothing we said in that case conflicts in principle with our opinion in this case.

The judgment is affirmed.

Affirmed.


text:
    M. D. Holcomb, Appellee, v. Harry B. Magee and Robert A. Hanna, Appellants.
    Gen. No. 6,748.
    1. Pleading, § 100

      —what admitted 6y joint plea of general issue in action for malpractice. In an action against two physicians to recover for injuries alleged to have been received through the malpractice of defendants in operating an X-ray machine in treating plaintiff, to which defendants entered a joint plea of not guilty, held that defendants by so pleading admitted that both were possessed of the machine in question and operated it by electricity through a powerful electric current and that one defendant, at the direction and under the supervision of the other, placed plaintiff in conjunction with the machine for examination at various times, as alleged in the declaration, and defendants could not contend that each was liable for his Own negligence only and not that of the other nor that the defendant who ordered the examination but was not present at it could not be held liable for the injury.
    2. Evidence, § 426

      —qualifications of X-ray expert. In an action against two physicians to recover for injuries alleged to have been received through their malpractice in operating an X-ray machine in examining plaintiff, it is proper to permit one who is familiar with the type of machine and its use and a specialist in X-ray work and has treated many patients to testify as an expert, even though he is not acquainted with medical and surgical practice in the city, where the injury was received, it not appearing that the type of machine in question worked differently in such city than elsewhere.
    3. Evidence, § 410*—when expert may testify as to cause of physical condition. In an action against two physicians to recover for personal injuries alleged to have been received through their malpractice in operating an X-ray machine in examining plaintiff, it is proper to permit a witness who has qualified as an expert in the use of such machines and the treatment of patients with them to state, in answer to hypothetical questions, what was the cause of the condition which he found on plaintiff’s back and whether or not the injury was the result of an X-ray bum.
    4. Physicians and surgeons, § 15*—when negligence shown in operation of X-ray machine. In an action against two physicians to recover for personal injuries alleged to have been received through defendants’ malpractice in conducting an X-ray examination of plaintiff, where it appears that plaintiff was severely burned, though assured by the defendant operating the machine that he would not be, that the machine was out of order and the operator knew it and an expert testifies that a type of machine such as that employed would not burn a patient when used with ordinary skill, such evidence establishes that plaintiff was burned by reason of a lack of ordinary care in the operation of the machine.
    5. Physicians and surgeons, § 14*—when jointly liable. In an action against two physicians to recover for personal injuries alleged to have been received through defendants’ malpractice in the manner of making an X-ray examination of the plaintiff, to which defendants entered a joint plea of not guilty, defendants held jointly liable under the admissions arising from the state of the pleadings coupled with the oral proofs.
    6. Evidence, § 169*—when declaration of one of two defendants in absence of other, admissible. In an action against two physicians to recover for personal injuries alleged to have been caused by defendants’ malpractice, to which defendants entered a joint plea of not guilty, statements made by one defendant in the absence of the other are competent evidence, at least against the defendant making them.

      7. Damages, § 211

      —when instruction permitting recovery for future suffering proper. In an action to recover for personal injuries alleged to have been caused by defendants’ malpractice, where the declaration charges that the injuries were permanent and the proof shows that they have continued up to the time of the trial and are likely to continue for several years in the future, an instruction permitting a recovery for future suffering, if any, is proper.
    8. Instructions, § 126*—refusal of abstract proper. An instruction which states an abstract proposition of law is properly refused.
    9. Appeal and error, § 1561*—when refusal of instruction harmless. The refusal of an instruction is not ground for reversal where such instruction was embodied in another given at the same party’s request.
    10. Instructions, § 47*—when properly refused as deciding facts. An instructiofi deciding a question of fact is properly refused.
    11. Damages, § 145*—when verdict for personal injuries not excessive. In an action to recover for personal injuries alleged to have been received through defendants’ malpractice in operating an X-ray machine,'" whereby plaintiff was burned, a verdict for $6,000 is not excessive where the evidence, though showing that plaintiff’s earning capacity has not been reduced by the injury, shows that there was an open sore on plaintiff’s back nearly continuously during the 2 years between the injury and the time of the trial, that the sore has been constantly discharging and sloughing off and adhering to his clothing, that it healed up but opened again, that he suffered great pain and also from fatigue, that his bade is weak and he cannot walk a great distance and that he will suffer the effects of the injury for several years in the future.
    12. Evidence, § 14*—depreciation in value of money judicially noticed. In considering whether or not. a verdict for $6,000 personal injuries is excessive, the court will take judicial notice that, because of the depreciation of the currency, the high cost of living or some other reason, such verdict is of no more intrinsic value than $3,000 would have been before the European War.
    Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed March 9, 1920.
    Robert J. Folonie, Jack, Irwin & Jack and McRoberts & Morgan, for appellants.
    Weil & Bartley, for appellee.

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

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

M. D. Holcombe sued Dr. Harry B. Magee and Dr. Robert A. Hanna, in' an action .on the case for malpractice and filed a declaration containing three counts, to which defendants pleaded a joint plea of not guilty. There was a jury trial. At the close of plaintiff’s evidence each defendant made a separate motion to exclude all the evidence and to find that defendant not guilty. Those motions were denied, defendants rested without offering any evidence, and plaintiff had a verdict assessing him damages at $6,000. Defendant Hanna made a separate motion for a new trial and both defendants made a joint motion for a new trial. Those motions were denied. Defendants moved in arrest of judgment and that motion was denied. Plaintiff had judgment on the verdict and defendants appeal.

The first count of the declaration charged generally that defendants were exercising the profession of physicians and surgeons and plaintiff retained and employed them as such for reward to attend and treat him for a certain malady from which he was then suffering, and defendants accepted such retainer and employment and entered upon the treatment of plaintiff and so unskilfully and negligently conducted themselves in that behalf that through their want of skill and care said malady was greatly increased and aggravated and the back and hips of plaintiff were burned, lacerated and permanently injured and plaintiff suffered great and unnecessary anguish and became greatly disordered and weakened and so remained from thence hitherto and suffered great pain and was hindered from transacting his affairs; that such injuries are permanent and plaintiff will in the future continue to suffer pain therefrom, and will he hindered in the respects aforesaid, and has been obliged to pay and incur liability to pay large sums of money in endeavoring to be cured of the said injuries and will be compelled to expend other sums in the future on account thereof. The second count contained like allegations, made more specific, and it averred that the plaintiff retained and employed defendants as physicians and surgeons to examine, attend and treat him; and it averred that defendants were then and there possessed of a certain mechanical apparatus known as an “X-ray machine,” by which the interior of a person can be examined for the purpose of determining his ailment and treating him therefor; that the same is operated by means of electricity and a powerful electric current, and the rays therefrom are very powerful; that Magee at the direction and under the supervision of Hanna placed plaintiff in conjunction with said machine and submitted him therewith to X-ray examination and treatment by means thereof; that said apparatus was out of repair to such an extent and in such a defective condition that when a patient, such as plaintiff, was placed into conjunction with the same and subjected to said rays, his body was liable to and would be burned and injured; that defendants knew this condition of the machine, or should have known it in the exercise of ordinary care, and plaintiff did not know it; that while plaintiff was in the exercise of due care for his own personal safety, defendants negligently and recklessly submitted plaintiff to the rays of said machine and by means of said negligence the back, hips and other parts of the body of plaintiff Were burned, lacerated, inflamed and permanently injured, and plaintiff suffered great and unnecessary anguish and distress and became greatly disordered and weakened in body and so remained from thence hitherto, during all of which time he suffered great pain and was hindered from transacting Ms affairs; that such injuries are permanent and plaintiff will continue to suffer pain therefrom and be hindered in the respects aforesaid, and has expended and will expend large sums in endeavoring to be cured of said injuries. The third count was like the second, and it averred that Magee, under the direction and supervision of Hanna, placed plaintiff upon and in conjunction with said machine and submitted him to X-ray examination and treatment.

The parties disagree as to what, if any, allegations of the declaration were admitted by defendants by their filing only a joint plea of not guilty. In McNulta v. Lockridge, 137 Ill. 270, a suit against a second receiver of a railroad for injuries inflicted while the first receiver was operating the road, and where the general issue alone was pleaded, it was held that this was an admission of the character and capacity in which the defendant was sued and also that at the time of the injury Cooley was receiver by appointment of court, as alleged in the declaration, and was then in possession of and operating said railroad as receiver, and that the employees operating the trains on said road were Cooley’s servants as receiver, and that on the date named in the declaration Cooley resigned that office and the resignation was accepted and the court appointed McNulta as such receiver and that he qualified and entered upon his duties as such receiver. In Illinois Life Ass’n v. Wells, 200 Ill. 445, there was an allegation in the declaration that defendant had been organized under a different name and had changed that name to Illinois Life Association, and it was argued that the cause should have been taken from the jury because there was no evidence tending to prove the change of name. The court held that the plea of the general issue admitted the capacity in which the defendant was sued, and admitted the change of name and the assumption of liabilities as alleged in the declaration. In Pennsylvania Co. v. Chapman, 230 Ill. 428, the declaration alleged that “the Pennsylvania Company operated the Pittsburg, Cincinnati, Chicago and St. Louis Railway Company” when appellant was injured. It was held that by filing only the general issue, appellant conceded that at the time of the injury it was operating the particular line of road mentioned in the declaration and that the operators in charge of the train were its servants and employees. In Chicago Union Traction Co. v. Jerka, 227 Ill. 95, the McNulta case was approved and- followed. The appellant there contended that the injury sued for was occasioned by a car belonging to the Chicago Consolidated Traction Company, and that ■ plaintiff had not proved its allegation that the defendant owned and operated the street railway tracks, electric motors and other appliances thereunto belonging. It was held that under the plea of the general issue plaintiff was not required to offer proof in support of those allegations, and the McNulta and other cases are there relied upon. Winn v. Cleveland, C., C. & St. L. Ry. Co., 239 Ill. 132, was a suit against that company and the Cairo, Vincennes & Chicago Railway Company in which the defendants pleaded only the general issue. There was an allegation that the former company owned and the latter company operated the railroad upon which the accident in question occurred. It was held that the only plea being the general issue, the character in which the defendants were sued was not put in issue. In Brunhild v. Chicago Union Traction Co., 239 Ill. 622, a personal injury cáse, the company contended that there was no evidence that it was in possession and operation of the car that caused the injury. The court held that under the plea of not guilty the ownership and operation of the instrumentalities that caused the injury were not in issue. The court adhered to its decision in the Jerka case. The cases thus- far considered are against a corporation or corporations, and appellants here contend that the principle so decided only applies to cases where a corporation is defending. Carlson v. Johnson, 263 Ill. 556, was a personal injury suit against individuals as well as against the City of Chicago, and all defendants were dismissed out of the case except John B. Johnson, and plaintiff had a verdict against him, so that the case in the Supreme Court was between individuals. The case was tried under the general issue. It was reversed because the court refused leave requested by defendant before the trial to file a special plea. At the trial the court refused to permit appellant to prove that at the time of the injury he was not in possession and control of the building, and that the persons employed thereon were not in fact his agents and employees. The Supreme Court reviewed some of the cases above cited and held that the court did not err in refusing to admit that proof, because said allegations were impliedly admitted where the only plea filed is the general issue. Our attention is not called to any decision of the Supreme Court modifying the rules above stated. These decisions have been followed and applied in many Appellate Court cases. We reviewed some of the cases and applied the rules above stated in Carr v. United States Silica Co., 153 Ill. App. 511, and also in Thomas v. Anthony, 179 Ill. App. 463, which latter was a case between natural persons. We therefore conclude that, by the state of the pleadings, it is admitted that the defendants were both of them possessed of the X-ray machine in question and were operating it by means of electricity with a powerful electric current, and that Magee at the direction and under the supervision of Hanna placed the plaintiff in conjunction with said machine for the purpose of examination and treatment on the various occasions mentioned in the declaration. This disposes of the contention here made by defendants that each of them is liable only for his own negligence and not for that of the other, and that Hanna cannot be liable because he was not personally present when the burning was inflicted.-

Though appellee relied upon this rule, he also offered some evidence tending to the same result. He proved that he first went to Dr. Cutter for some iiternal ailment and that Cutter was an assistant tv Hanna and took him to Ilauna, and that plaintiff then applied to Hanna for a supposed stomach trouble, to see what Hanna could do for him; that Hanna advised him that it was a bad appendix that was troubling him and advised that he be operated upon for appendicitis; and that appellee told him that he wanted him, Hanna, to operate on him if he had to be operated on; that Hanna said he wanted appellee to have some X-ray pictures and that he had a new laboratory recently fitted up and run by his assistant, Magee; that appellee went to Magee the next afternoon, and that the first thing said or done by either of them was that Magee instructed appellee to remove his clothing and prepare for an X-ray examination, from which evidence the jury might reasonably infer that Hanna had informed Magee that he was sending appellee there for that purpose. He further testified that Magee had trouble with the machine and so stated to him; and appellee detailed the sparking and the cross-sparking overhead and underneath the machine upon which appellee was placed upon his back. He testified that Magee told him that it did not work properly and that Magee said he did not know what was the matter and that Magee appeared to be anxious and did various things and that appellee was on the table from 2 p, m. until 4:45 p. m. During that afternoon appellee asked Magee if there was any danger of his burning or hurting appellee, and Magee said absolutely none; that one who knows his business does not burn people. Appellee further testified that later on the same afternoon appellee again asked Magee if there was any danger and that Magee said-there was none and that he would not bum appellee. Appellee testified that by direction of Magee he went back the following afternoon, and that soon after he met Magee, Hanna with some visitors came into the room, and Hanna asked appellee if he was getting his examination and was answered in the affirmative; that Hanna then said to those who were with him in the presence of Magee that this was his new X-ray laboratory which he had recently fitted up. Appellee testified that Hanna then went away, and Magee again had appellee remove his clothing and lie down upon the horizontal table; that Magee then said that his machine had not been working right; that by direction of Magee he came hack next afternoon, that lie undressed and was stood up against the machine in a vertical position, that he felt prickly sensations where his body touched the frame of the vertical machine against which he was standing and this frightened appellee, and appellee again asked Magee if there was any danger of being burnt, and Magee said there was absolutely none, that he did not burn people; and Magee went on with his work and appellee became side at his stomach and exhausted, and Magee then placed him on the horizontal table and continued the examination. Appellee testified that several days afterwards lie felt an itching sensation on his back and afterwards found there were great blotches on his back where the rays had been applied, that thereafter he went to Hanna’s office and Hanna made an examination of the wound on his back when Cutter was present and that when Hanna saw appellee’s back, he said: “We have burned you. It will take a long time to heal it”; that Hanna called in his surgical nurse and had her bandage-the wound; that Hanna treated the wound for some 3 weeks during which time he called Magee up from his office on a lower floor. By the words “We have burned you,” the jury might fairly have understood that Hanna meant that he was one of the parties responsible for the burning. The testimony above recited was in harmony "with the admissions arising from the state of the pleadings.

The X-ray machine was what is known as a'Kellieut machine. Dr. Benjamin Harry Orendorf of Chicago testified for plaintiff as an expert. He showed great familiarity with the Kellicut machine and -was a specialist in the use of the X-ray machine and had treated many patients and was familiar with the use of that machine, not only in Chicago, but in many other cities similar to Peoria, but not in Peoria. It is contended that because he was not acquainted with medical and surgical practice in Peoria, he was incompetent. There is nothing in the proof to indicate that a Kelli-cut machine works differently, in Peoria from what it does elsewhere, and we see no force in the objection. In answer to hypothetical questions Orendorf was permitted to state what was the cause of the condition he found upon the plaintiff’s back and whether or not the injury was the result of an X-ray bum, »nd the like. It is contended that this was erroneous as permitting the witness to decide the very question to be submitted to the jury. There are decisions in Illinois which hold that the proper questions to such an expert are whether the facts detailed in the hypothetical question could cause the injury or might cause the injury, rather than whether they did cause the injury, but we are of opinion that this question has been settled in this State contrary to the contention of appellants. City of Chicago v. Didier, 227 Ill. 571; Chicago Union Traction Co. v. Roberts, 229 Ill. 481; Donnelly v. Chicago City Ry. Co., 235 Ill. 35; Fuhry v. Chicago City Ry. Co., 239 Ill. 548. In City of Chicago v. Didier, supra, the court said:

“Appellant contends that the inquiry should be as to whether the injury might have produced the physical conditions, and not whether it did produce them. Expressions will be found in some cases tending to support that view, but the weight of authority in this State, as well as in other jurisdictions, does not support appellant’s contention.”

The court there distinguishes Illinois Cent. R. Co. v. Smith, 208 Ill. 608, relied on by appellants. In Chicago Union Traction Co. v. Roberts, supra, the court said:

“ It is entirely immaterial whether the witness testified that the injury was the cause of the condition, or that the injury was sufficient to cause the. condition or might have caused it. In any event, the testimony was merely the opinion of the witnesses, given, as such, upon a state of facts assumed to be true. It still remained for the jury to determine the facts, and the opinion was nevertheless an opinion only, whether it states what did cause the condition or what might cause it. The question may be asked in either form. ’ ’

In Fuhry v. Chicago City Ry. Co., supra, the court said:

“It is immaterial whether the witness testified that the injury might or could cause the condition or that it did cause it. In' any event the testimony was merely the opinion of the witness based upon the facts he had testified to. It was still for the jury to determine the truth in regard to those assumed facts, as well as any others which might tend to confirm or modify their reliance upon the opinion given.”

The parties disagree upon the question whether this case comes within the doctrine res ipsa loquitur, so that the burning is itself evidence of negligence. There are authorities to that effect in eases of burning by X-rays. In Shockley v. Tucker, 127 Iowa 456, 103 N. W. 360, the court said: “We think the fact that plaintiff was severely burned is some evidence in itself that the treatment was improper, and it cannot be said that the verdict lacks support in this respect in the evidence.” In Jones v. Tri-State Tel. & Tel. Co., 118 Minn. 217, 4 N. C. C. A. 832, 136 N. W. 741, the court said:

“The instrumentality was under the exclusive control of defendant, and there is sufficient evidence that injury to -the subject is not a necessary result of the taking of an X-ray picture, if proper instrumentalities and proper care are used. Certainly we cannot say that plaintiff’s injuries were not the result of the exposure. These facts are enough to make the case one of res ipsa loquitur, and to make the burden on defendant to show that there was no neglig’ence. Defendant did not show this, at least conclusively. Indeed, there was sufficient evidence of negligence, even without the res ipsa rule, to make a case for the jury. ’ ’ In George v. Shannon, 92 Kan. 801, 6 N. C. C. A. 1086, 142 Pac. 967, the court said, speaking of a given instruction :

“Deduced to a sentence, it is this: If the taking of such pictures in a proper and careful manner does not necessarily result in injury, then the fact that injury did result is some evidence (which may be rebutted) that proper care and skill were not exercised. We find no error in the instruction.”

When the fact that plaintiff was burned severely is taken in connection with the assurances given by Ma-gee to plaintiff that he would not be burned and with the testimony of Orendorf, which clearly shows that the use of a Kellicut machine with ordinary skill will not burn a patient, unless it is intended to bum him, as in treating a cancer and the like, we think it clear that plaintiff was burned because of a lack of ordinary care in the operation of the machine. The proof shows that the machine was out of order and the operator kneAv it, which makes the negligence only the greater.

Appellants contend that they are not jointly liable. We are of opinion that they are so liable under the admissions arising from the state of the pleadings, coupled Avith the oral proofs, under principles similar to those laid doAvn in Republic Iron & Steel Co. v. Lee, 227 Ill. 246, and Sullivan v. Corn Products Refining Co., 245 Ill. 9, and other like eases. We find no reversible error in the rulings of the court upon the evidence and are of opinion that in this action of tort what one defendant said in the absence of the other is competent eAddence, at least against himself. This is not a case where there must necessarily be a verdict against both defendants or none. It follows from what we have heretofore said that in our opinion the court properly refused to exclude plaintiff’s evidence and to direct a verdict for defendants.

It is argued that plaintiff’s given instruction No. 2 was erroneous in permitting a recovery for future suffering. The declaration charged that the injury was permanent, and the proof showed that it had continued up to the time of the trial and was likely to continue for several years in the future. The instruction was therefore proper and the direction to allow for such future suffering was followed by the words “if any.” Of defendants’ refused instructions we think it sufficient to say that several of them were mere abstract propositions of law, which on that account it was not error to refuse, that some of them were embodied in instructions given at the request of defendants, and others decided questions of fact.

We think it perhaps the most serious question in the case whether the damages awarded are excessive. The proof shows that plaintiff had not been reduced in his earning capacity by these burns. It showed that nearly all of the time from the application of these X-rays to the time of this trial, which was nearly 2 years, plaintiff has had an open sore upon his back, constantly discharging and sloughing off and adhering to his clothing. It was healed up but it broke out "again. He suffered great pain. His back is weak. He cannot walk a great distance. He suffers very much from fatigue. He will suffer the effects of this injury for several years in the future. It is also a fact of which we take judicial notice (Brown v. Piper, 91 U. S. 37), that, because of the depreciation of our currency, or the high cost of living or some other reason, this verdict is of no more intrinsic value than $3,000 would have been before the European War. Upon a careful consideration of all the proof as to the sufferings of plaintiff, we would not be warranted in reducing this verdict, which the trial judge has approved. As to all the proof in this case, it is to be borne in mind that it stands uncontradicted, when contradiction was easy if plaintiff’s proofs were untrue.

The judgment is therefore affirmed.

Affirmed.

Mr. Presiding Justice Niehaus took no part.


author: Mr. Justice Heard

text:
    Robert L. Sartain, Appellant, v. Avery Company, Appellee.
    Gen. No. 6,705.
    1. Judgment, § 658

      —power to inquire into jurisdiction of foreign courts. The full faith and credit clause of the federal constitution does not prevent the courts of Illinois from ascertaining, in actions therein on judgments rendered in sister States, whether the courts rendering such judgments had jurisdiction of the subject-matter or the parties.
    2. Corporations, § 746*—how jurisdiction over foreign acquired. To give a court jurisdiction in personam over a foreign corporation, it must appear that the corporation was carrying on business in the State where process was served on its agent, that the business was transacted or managed by some agent or officer authorized by or representing the corporation in such State and that some local law exists making such corporation amenable to suit there as a condition, express or implied, of doing business in the State.
    3. Corporations, § 745*—what necessary to render foreign corporation amenable to service'. To render a corporation amenable to service of process in a foreign jurisdiction, it must appear that the corporation is transacting business - in that district to such an extent as to subject it to the jurisdiction and laws thereof.
    4. Judgment, § 658*—when jurisdiction may be questioned in action on foreign. Where a foreign corporation defendant challenges the court’s jurisdiction on the grounds that the person served as “service agent’’ for it was not and never had been its agent and that it was not and never had been doing business in the State, and no action is taken upon such plea to the jurisdiction but, after it was filed, judgment was taken by default against such defendant, which judgment does not, by its recital, find adversely to defendant on the jurisdictional questions but ignores the service on such agent and does not find that defendant was doing business in the State or that its plea to the jurisdiction was a general appearance conferring jurisdiction, but only that the service of summons upon the Secretary of State was regular and that by such service the court had jurisdiction, the foreign corporation defendant is not estopped to question the jurisdiction of the court rendering the judgment in an action on the judgment in another State. •
    5. Judgment, § 660

      —when demurrer to replication properly sustained in action on foreign. Where, in an action in Illinois against an Illinois corporation on a judgment recovered against it in Oklahoma, defendant’s plea a,lleged that it was not and never had been doing business in Oklahoma and this allegation is not met by anything contained in the replication, a demurrer is properly sustained to the replication.
    Appeal from the Circuit Court of Peoria county; the Hon. C. V. Miles, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed March 9, 1920.
    Tichenor, Todd, Wilson & Barnett, for appellant.
    Burton & Hamilton, for appellee.

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

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

   Mr. Justice Heard

delivered the "opinion of the court.

Robert L. Sartain, the appellant, brought suit against the Avery Company, appellee, in the circuit court of Peoria county ill an action of debt based upon a judgment recovered against appellee in the superior court of Okmulgee county, Oklahoma. The appellee filed a plea to the declaration. A demurrer was sustained to the plea and an amended plea was filed alleging that the superior court of Okmulgee county, Oklahoma, had no jurisdiction over it; that appellee was an Illinois corporation; that it had never been served with process and had never entered its appearance in the suit in which the judgment was rendered except specially and for the sole purpose of challenging the jurisdiction of the court; that it never had an officer or agent in Oklahoma and that it never did any business in that State and that therefore the judgment was a nullity.

To this plea the appellant filed a replication in which it set up the statute of Oklahoma with reference to the service of process upon foreign corporations doing business in that State, the statute providing that where such corporations have not complied with the laws of the State, service may be had by service of process upon the Secretary of State. The replication also set up the proceedings had in the case which show that in the suit in which the judgment in question was obtained service was had upon the Secretary of State. It also set up appellee’s special plea to the jurisdiction and set up in full the judgment of the Oklahoma court. The replication set up that the judgment still remained in full force and that it is the law of Oklahoma that a fact or question which was actually and directly in issue in a former suit and was there judicially passed upon and determined is conclusively settled by the judgment therein and cannot again be litigated in any further action between such parties or their privies.

To this replication appellee filed a demurrer, which appellant asked to have carried back to the amended plea. The court held the amended plea to be good, refused to carry the demurrer back to it and sustained the demurrer to the replication. Appellant elected to stand by his replication and motion to carry demurrer back to plea and thereupon a judgment of nil capiat and for costs was entered in favor of appellee against appellant, from which judgment appellant has appealed.

It is contended by appellant that the record of the judgment showing full and complete jurisdiction in the Oklahoma court to render the same, full faith and credit must be given it in this State by reason of the provisions of the federal constitution.

In Pembleton v. Illinois Commercial Men’s Ass’n, 289 Ill. 99, it was said: “It appears to be suggested that the provision of the federal constitution requiring that full faith and credit shall be given in each State to the judicial proceedings of every other State, and the act of Congress passed in pursuance thereof, prevent an inquiry into the jurisdiction of the court by which the judgment offered in evidence was rendered. It has been held by the federal courts that the record of a judgment rendered in another State may be contradicted as to the facts necessary to give the court jurisdiction, and, if it be shown that such facts did not exist, the record will be a nullity, notwithstanding it may recite that they did exist; that want of jurisdiction may be shown either as to the subject-matter or the person. (Thompson v. Whitman, 18 Wall. [U. S.] 457; Simmons v. Saul, 138 U. S. 439; National Exch. Bank v. Wiley, 195 U. S. 257.) This court has laid down a similar rule that the courts of this State may inquire into .the proceedings, judgments or decrees of a sister State to determine whether the court had jurisdiction of the subject-matter or the parties. Field v. Field, 215 Ill. 496; Forsyth v. Barnes, 228 Ill. 326. It has also been settled by the federal decisions that three conditions are necessary to give a court jurisdiction in personam over a foreign corporation: First, it must appear that the corporation was carrying on its business in the State where process was served on its agent; second, that the business was transacted or managed by some agent or officer appointed by or representing the corporation in such State; third, the existence of some local law making such corporation amenable to suit there as a condition, express or implied, of doing business in the State. (21 R. C. L. 1340; Connecticut Mut. Life Ins. Co. v. Sprat ley, 172 U. S. 602; Armstrong Co. v. New York Cent. & H. River R. Co., [Minn.] Ann. Cas. 1916E 335.) “It is also established that in order to render a corporation amenable to service of process in a foreign jurisdiction it must appear that the corporation is transacting business in that district to such an extent as to subject it to the jurisdiction and laws thereof. St. Clair v. Cox, 106 U. S. 350; Commercial Mut. Acc. Co. v. Davis, 213 U. S. 245, and cases there cited.”

It is contended by appellant that the plea filed in the Oklahoma ease challenging the jurisdiction constituted a general appearance and that the Oklahoma court having found adversely to appellee thereon that appellee is estopped by verdict from again raising the question of the jurisdiction of the Oklahoma court.

Appéllee’s plea in the Oklahoma court challenged the jurisdiction upon two grounds: First, that James S. G-ldHish upon whom the sheriff had served the summons as “service agent for the Avery Company” was not and never had been an agent of the Avery Company; and second, that the Avery Company was not and never had been doing business in the State of Oklahoma. It appears from the replication to which demurrer was sustained that no action was ever taken by the Oklahoma court upon this plea, but 3 days after the filing of the plea, judgment was taken by default against appellee. The record of the judgment set up in the replication so far as it is here material is as follows: “Now on this 18th day of July, 1918, this cause came on for hearing upon the application of the plaintiff for a default against the defendant, the Avery Company, and it appearing to the court that summons in this action has been served upon the Honorable J. L. Lyon, Secretary of State, for the State of Oklahoma, and the court finding from the admissions heretofore made and entered in this case by the defendant, .the Avery Company, that said Avery Company is a foreign corporation and has not complied with the law as to foreign corporations, and has never appointed any person as its agent, in the State of Oklahoma, upon whom process of summons might be served, and the court finding that said service of summons upon the Secretary of State of Oklahoma is regular, and that by such service this court has jurisdiction over the parties to this action and the subject-matter thereof, and that the said Avery Company is in default for answer or demurrer to the amended petition herein, and has been three times called to come into court and to answer or demur to said amended petition, came not and made default.” The court does not by its recital in the judgment find adversely to appellee. It- ignores the service of process upon Gladish and does not find that appellee was doing business in Oklahoma. It does not find that appellee’s plea was a general appearance and that by reason thereof the court had jurisdiction but does find “that said service of summons upon the Secretary of State of Oklahoma is regular, and that by such service this court has jurisdiction over the parties to this action and the subject-matter thereof.”

The plea alleged that appellee was not and never had been doing business in Oklahoma and this allegation was not met by anything contained in the replication. This allegation was a material allegation. In Pembleton v. Illinois Commercial Men’s Ass’n, supra, it was said: “It has been repeatedly held that in order to malee such a statute applicable to a foreign corporation in any State, it must be shown that such corporation was doing business in that State. Old Wayne Mut. Life Ass’n v. McDonough, 204 U. S. 8; Frawley v. Pennsylvania Casualty Co., 124 Fed. 259; Commercial Mut. Acc. Co. v. Davis, supra, and cases there cited,”

The action of the court in refusing to carry the demurrer back to the plea and in sustaining the demurrer to the replication was proper. The judgment of the circuit court will he affirmed.

Affirmed.


author: Mr. Justice Heard Per Curiam:

text:
    Peter R. Kennedy, Defendant in Error, v. Illinois Northern Utilities Company, Plaintiff in Error.
    Gen. No. 6,710.
    Landlobd and tenant, § 415

      —relation between lessor and assignee. When the assignee of a lease does not assume the obligation of the lease, there is, as between the lessor and the assignee, privity of estate only, and the assignee is liable for the rent while such privity of estate exists, and no longer, and he may terminate such liability by assigning the lease and going out of possession.
    On Petition fob Reheabing.
    Appeal and ebbob, § 1160*—when rehearing not granted. A claim of res adjudioata not made in plaintiff’s declaration or by replication cannot be made the ground for granting a rehearing.
    Error to the Circuit Court of Boone county; the Hon. Chables H. Donnelly, Judge, presiding. Heard in this court at the October term; 1920.
    Reversed with finding of facts.
    Opinion filed March 9, 1920.
    Rehearing denied April 7, 1920.
    William L. Pierce, for plaintiff in error.
    W. C. De Wolf, for defendant in error.

      See Illinois Notes Digest, Vols. XI tp XV, and Cumulative Quarterly, sapie topic and section number.

   Mr. Justice Heard

delivered the opinion of the court.

Peter E. Kennedy, defendant in error, brought suit against the Illinois Northern Utilities Company, plaintiff in error, in the circuit court of Boone county for rent of certain premises for the months of September, 1915, to April, 1916, inclusive. The original declaration to which there was some pleading was abandoned and there was filed an amended declaration which charged that Kennedy leased the premises in question to one Stal'd, which lease was under seal and was to run from October 1, 1910, to May 1, 1917, at a rental of $45 per month except for 3 certain months; that Stahl bound himself, his successors and assigns to pay said rent at the times specified. On March 21, 1912, Stahl assigned the lease to one Monroe who on May 1, 1912, assigned it to plaintiff in error, who entered into possession of the premises and paid the rent of said premises to Kennedy, until May 1, 1915, when it refused to pay any more rent.

Four pleas were filed to the amended declaration. The first was non est factum as to the assignment. The second was the Statute of Frauds and that the alleged assignment was not in writing and not to be performed within one year. The third set up a former adjudication between the same parties. The fourth set up a reassignment of the lease to one Neeley Clark, a surrender of the possession of the premises to Clark and an abandonment of the premises by plaintiff in error. Issue was joined, a jury waived, the cause tried before the court and a finding and judgment against plaintiff in error for $360 and costs. Defendant below sued out this writ of error.

We think it unnecessary to review in detail the evidence in the case. By the assignment from Monroe to plaintiff in error, plaintiff in error did not assume all the obligations of the lease.

In Springer v. DeWolf, 194 Ill. 220, it was said: “The important question in this case is whether the appellant is liable for the ground rent reserved by the lease mentioned, and accruing after the conveyance by him to McGrinniss. All the substantial questions presented in the brief of counsel for appellant are embraced in that proposition. To determine that question we must consider whether there was privity of contract as well as of estate between the appellant and the appellee.. As between the lessor and the lessee both exist, but the privity of estate may be determined by an assignment of the lease by the lessee. Not só as to the privity of contract. The lessee cannot shake off his contractual liability by making such an assignment. When there is no assumption by the assignee of the obligations of the lease, then, as between the lessor and the assignee, there is privity of estate only, and the assignee is liable for the rent while such privity of estate exists, and no longer. But the assignee may terminate such liability by assigning the lease and going out of possession. Consolidated Coal Co. v. Peers, 166 Ill. 361.”

On the trial it was stipulated between the parties. that plaintiff in error occupied the premises “until the 30th day of April, 1915, when said defendant removed all its belongings, offices, property and effects from said leased premises to another location and did not thereafter physically occupy said premises or any part thereof.” It was also stipulated that Neeley Clark, if present, would testify that on May 9, 1915, the defendant, Illinois Northern Utilities Company, assigned the lease mentioned in the amended declaration in this case, to him in writing, and that he accepted the lease and assignment on that day; that the consideration named in the assignment from defendant to Clark was One Dollar ($1.00), but that said consideration has not been paid.

Plaintiff in error on going out of possession delivered the key of the premises to the president of the bank through which the rent was paid.

There was no privity of contract between defendant in error and plaintiff in error and when plaintiff in error abandoned the premises and assigned the lease to Clark, the privity of estate was terminated and plaintiff in error was no-longer liable for rent of the premises.

Tie judgment of the circuit court of Boone county is reversed. ¡

Reversed with finding of facts.

Finding of facts: We find from the evidence that on April 30, 1915, plaintiff in error surrendered possession of the premises and has never since occupied the same and that it delivered the key thereof to the agent of the defendant in error and that thereafter no privity of estate existed between plaintiff in error and defendant in error and that it is not legally liable for the rent for the months specified in the declaration.

Per Curiam:

Plaintiff below on petition for rehearing claims that defendant below by reason of a former adjudication is barred from making the defense which we have sustained. No such claim is made in plaintiff’s declaration or by replication and so no such question of res adjudicata is raised by plaintiff upon the record. Consolidated Coal Co. v. Peers, 166 Ill. 361.

The petition for rehearing is denied.