text:
    Hattie Falberg, Defendant in Error, v. Continental Casualty Company, Plaintiff in Error
    Gen. No. 20,407.
    1. Insurance, § 205

      —when misrepresentation in application as to name of applicant invalidates contract. A false statement in an application for life insurance as to the applicant’s name invalidates the contract of insurance.
    2. Insurance, § 821

      —when misrepresentation in application as to relationship of beneficiary invalidates contract. Where an applicant for insurance states in his application that the beneficiary is his “wife,” whereas she is not his wife, but a woman with whom he is sustaining illicit relations, the misrepresentation invalidates the contract of insurance.
    3. Insurance, § 365

      —when tender of return of premiums not essential. In an action by the beneficiary of a policy of life insurance against the insurer, the latter is not required to return the premiums to the beneficiary or the wife of the insured as a condition to setting up misrepresentations in the application for insurance as a defense, the title to the premiums being in the personal representative of the insured.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed.
    Opinion filed November 1, 1915.
    Martin P. Cornelius and George R. Sanderson, for plaintiff in error; Manton Maverick, of counsel.
    Adams, Crews, Bobb & Wescott, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This is a suit on an accident insurance policy. On the trial the court instructed the jury to find the issues for the plaintiff and to assess the damages at $1,000. Judgment was entered on the verdict.

The application for insurance is in part as follows:

“I hereby apply for insurance in.the Continental Casualty Company based upon the following statements, and I agree that any failure on the part of myself, my heirs, legal representatives or beneficiary to comply with the provisions, conditions and agreements of this Application, or of any policy issued hereon, shall work a forfeiture of the policy and all claims thereunder. * * *
“1. Name, Henry Falberg. * * *
“6. Beneficiary to take interest under the policy only at death of applicant. (Give full Christian name, relationship and residence.) Name, Hattie..........■ Relationship, wife.”
“I understand and agree that I have made each of the above statements as a material representation to induce the issue of a policy for which I have made this application, and to that end I warrant each of them to be full, complete and true, and declare that no statement contradictory thereto was made by me to the agent of said company, and that all statements made to him are embodied herein. * * *
“In Witness Whereof, I have hereunto set my hand this 6th day of September, 1911.
“(Signed) Henry Falberg, Applicant.
“L. B. Halsted, Witness.”

The defense is misrepresentation by the insured in that (1) his name was not Henry Falberg, but that it was in fact Knut Lindblom, and (2) that Hattie Falberg was not his wife. The evidence sufficiently supported these defenses. It was proved that prior to the making of the application the insured, whose real name was Knut Lindblom, had deserted his lawful wife, ! Mary Lindblom. Mrs. Lindblom testified that there had never been a divorce, and her statement was corroborated by other evidence. The fact that plaintiff sustained illicit relations with the insured did not make her his wife, and the claim that the representation meant merely that she sustained the “relation of wife” to insured, and hence was true, is not convineing. The plain meaning of the language used in the application is that the beneficiary was in fact and in law the wife of the insured. Duenser v. Royal Arcanum, 262 Ill. 475.

Whether considered as warranties or as representations, the statements as to applicant’s name and as to the relationship of the beneficiary'are so material that falsity therein invalidates the contract of insurance. The necessity to an insurance company of true information as to the identity of the party to be insured and the identity and relationship of the beneficiary is too obvious to require argument. Cases precisely in point are Continental Casualty Co. v. Lindsay, 111 Va. 389, and Gaines v. Fidelity & Casualty Co., 188 N. Y. 411. In the latter case the court in its opinion said: “The insurer was entitled to know the actual relationship, which the person, for whom the assured desired the benefit of the insurance contract, sustained to him; for it bore upon the risk which it was to assume.”

The court instructed the jury that the defendant could not make these defenses because it had not paid back either to the wife or to the plaintiff, or to some other person, the premiums it had received. In the recent case of McKinney v. Metropolitan Life Ins. Co., 191 Ill. App. 592, citing many cases, we have held that neither the husband, wife nor beneficiary was entitled to the return of premiums, but that the title to them was in the personal representative of the deceased. The trial court was in error in its instruction as to the law. No such representative is a party to this litigation. Plaintiff has no right to the premiums, and cannot complain because they have not been returned to someone else. We note in the brief for the defendant that it offers to return these premiums “upon demand to the proper qualified representative of the insured estate.”

Because of these misrepresentations made by the insured in his application there can be no recovery on this policy, and the judgment is reversed without remanding the cause.

Reversed.


source: Caselaw Access Project

author: Mr. Presiding Justice McSurely

license: Public Domain

text:
    Leonard C. Reid, Administrator, Defendant in Error, v. Samuel B. Lingle, Plaintiff in Error.
    Gen. No. 20,470.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Caverly, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed November 1, 1915.
    Statement of the Case.
    Action by Leonard C. Reid, administrator of the estate of George Upton, deceased, plaintiff, against Samuel B. Lingle, to recover for the death of plaintiff’s intestate. Judgment was rendered for plaintiff. To reverse the judgment, defendant prosecutes this writ of error.
    Plaintiff in his statement of claim charged that defendant had control of a flat building; that the father of the deceased occupied a flat therein; that a fire was started near the premises, on which defendant’s janitor threw rubbish; that the fire ignited the clothing of plaintiff’s intestate, then slightly over four years of age, who was passing by, and that he was so severely burned.that he died. Defendant denied that the janitor ever started the fire in question or threw rubbish on it, and sought to introduce testimony tending to show'that the child had set himself on fire.
    No eyewitness testified to having seen the child catch fire or that he was dangerously near the spot where the fire is said to have been. The existence of the fire itself was sharply controverted. The fire was said to have been on a vacant lot near the flat building. A heavy gate shut off the passageway from the courtyard of the flat building to this lot. The last seen of the child before the accident was by a young girl who testified that she opened this gate and allowed the child to go through the gateway and that she then closed the gate, leaving him outside. About an hour afterwards he was discovered by his mother inside the courtyard with his clothes burning.
    Abstract of the Decision.
    1. Evidence, § 68

      —when evidence of past transactions inadmissible. In an action to recover for the death of a child alleged to have been caused by the negligence of defendant’s janitor in the manner of burning rubbish whereby plaintiff's decedent received injuries resulting in his death, evidence that defendant had been seen'before that time burning garbage at various times when children were near is harmful error where it is not claimed that defendant made the fire causing the death or was on the premises or knew anything about it.
    2. Evidence, § 68

      —when evidence of ordinance inadmissible. In an action to recover for the death of a child alleged to have been caused by the negligence of defendant’s janitor, it is error to permit plaintiff to introduce in evidence a section of the ordinance of the city of Chicago making the building of a bonfire in any street or alley an offense punishable with fine, where the evidence showed that the location of the fire had nothing to do with the accident and tended, furthermore, to show that the fire was on a vacant lot.
    3. Evidence, § 73

      —when exclusion of evidence rebutting inference error. Where, in an action for the death of a child alleged to have been caused by the negligence of defendant’s janitor in burning garbage, there is no direct evidence as to how the child’s clothing caught fire, it is error to exclude evidence that at different times before the accident the child had been found with matches which had been taken from him and that he had several times set fire to his clothing with them.

      Ernest Severy, for plaintiff in error.
    Litzinger, McGurn & Reid, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Mrs. E. J. Gibbons, Defendant in Error, v. Allen Grossman and Leopold E. Phillips, Plaintiffs in Error.
    Gen. No. 20,591.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed November 1, 1915.
    Statement of the Case.
    Action by Mrs. E. J. Gibbons, plaintiff, against Allen Grossman and Leopold E. Phillips, defendants, to recover damages claimed to have been sustained by misrepresentations of defendants as to a fur coat purchased of them by plaintiff. To reverse a judgment for plaintiff, defendants prosecute this writ of error.
    Defendants filed an appearance and an affidavit of defense denying that any representations as claimed had been made. The case was duly set for trial, and on that date the plaintiff appeared but the defendants were absent and not represented, and the court entered judgment against them for the amount of plaintiff’s claim. Within two days thereafter defendants, by their attorneys, filed a written motion to vacafe the judgment, which motion was supported by an affidavit. This, in substance, alleged that the failure to be present on the day of the trial was due to a mistake of a clerk in the office of defendants’ attorneys wh(/ was confused by the announcement of the cases on the Municipal Court judges’ calls which appeared in the “Daily Municipal Court Record,” a daily paper or bulletin giving the court calls. The clerk’s mistake seems to have been made possible by the fact that some of the judges were suspending their calls on account of the sessions of the State Bar Association, while others were not.
    Abstract of the Decision.
    Judgment, § 286

      —when refusal of motion to vacate judgment by default reversible error. Where defendants’ attorneys failed to be present on the day the case was set for trial in the Municipal Court of Chicago through a mistake of a clerk in their office who was confused by the announcement of the cases on the Municipal Court judges’ calls appearing in a daily bulletin giving such calls, such confusion being made possible by the fact that, at the time, some of the judges were suspending their calls while others were not, it is error to deny a motion to vacate the judgment.
    Hiner, Bunch & Latimer, for plaintiffs in error.
    McMahon & Cheney, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Butcher Folding Crate Company, Defendant in Error, v. S. T. Fish, trading as S. T. Fish & Company, Plaintiff in Error.
    Gen. No. 20,625.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed November 1, 1915.
    Statement of the Case.
    Action by Butcher Folding. Crate Company, a corporation, plaintiff, against S. T. Fish, trading as S. T. Fish & Company, defendant, to recover for crates sold and delivered. There was a judgment for plaintiff for $672.18, to reverse which defendant prosecutes this writ of error.

      The evidence tended to show that in March, 1911, plaintiff’s president made a verbal contract with the defendant for about 30,000 crates at seventeen cents each, to be shipped to Asherton, Texas, to be used by-onion growers there who were shipping onions to defendant. Defendant testified that his firm was' to collect for plaintiff the price of the crates from the growers as they were shipped to defendant, which was denied by plaintiff. Plaintiff proceeded to make shipments and had delivered some 18,000 or more crates when it was advised on account of the market being bad to stop shipments. It thereafter agreed to release the defendant from liability for the balance of crates, about 10,000, contracted for and shipped but not delivered. On June 30th plaintiff’s president called at the office of defendant for the purpose of procuring a settlement for all crates that had been shipped, and it was then ascertained that there was a balance due plaintiff of $821, not taking into account certain crates which had been delivered to one Obets, an onion grower who was marketing his crop through the defendant. The number of these Obets crates was about 4,354. As the result of the conversation at this time a written contract was entered into as follows:
    “In consideration of accepting S. T. Fish &. Company’s check A3214 for Eight Hunded Twenty-one Dollars, it is understood that the balance of the crates, 4354 crates, delivered to Charles Obets at Asherton, Texas, are to be returned to the onion platform at Asherton; and if any shortage, when delivery is made to the platform, from, above number, S. T. Fish & Company agree to make good.
    (Signed),
    S. T. Fish & Company.
    Accepted: Butcher Folding Crate Company.” There was evidence tending to show that on or after the date of this agreement the only crates returned to the platform by Obets, or on his behalf, were 400, which were afterwards sold by Obets and were never received by plaintiff. It was shown that Obets received about 6,500 crates, used for his own crop about 2,400 and made two sales to other growers, one of about 2,666 and the other of 1,600, which were hauled directly from his farm to the premises of the purchasers.
    Abstract of the Decision.
    Sales, § 329

      —when evidence sufficient to support verdict. Evidence in action to recover for purchase price of goods sold and delivered, examined and held to support the verdict.
    The principal defense was the return of the crates by Obets under the agreement. Defendant also contended that there was no consideration for the agreement.
    Benjamin C. Bachrach and Arthur C. Bachrach, for plaintiff in error.
    Albert E. Lucius and Edward B. Lucius, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    City of Chicago, Defendant in Error, v. Emily Marshall, Plaintiff in Error.
    Gen. No. 20,642.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed November 1, 1915.
    Statement of the Case.
    Complaint by the City of Chicago against Emily Marshall, defendant, of violating section 2019 of the Municipal Code of Chicago by being the keeper of a disorderly house. There was evidence for complainant of conduct of a woman inmate of the house and defendant admitted three former convictions of keeping a disorderly house. Some of complainant’s testimony was denied by defendant. To reverse a judgment of the court fining defendant, she prosecutes this writ of error.
    Abstract of the Decision.
    Disorderly house, § 2

      —when evidence sufficient to support verdict. Evidence in a prosecution on the charge of keeping a disorderly house, examined and held to support a finding that defendant was guilty.
    Charles Horgan, for plaintiff in error.
    John W. Beckwith and Albert J. W. Appell, for defendant in error; John F. Power, of counsel.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Albert Rothbaum and Mandel Astrahan, trading as Rothbaum & Astrahan, Plaintiffs in Error, v. Henry Levy, Defendant in Error.
    Gen. No. 20,722.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. La Buy, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and judgment in this court.
    Opinion filed November 1, 1915.
    Rehearing denied November 15, 1915.
    Statement of the Case.
    Action by Albert Rothbaum and Mandel Astrahan, trading as Rothbaum & Astrahan, plaintiffs, against Henry Levy, defendant, to recover $200 on the following contract:

      Abstract of the Decision.
    1. Evidence, § 319

      —when parol evidence inadmissible to vary terms of written contract. In an action on a written contract, parol evidence tending to show that the contract was not to take effect until one of the parties had paid the other a certain sum of money, is inadmissible.
    2. Contracts, .§ 56

      —when delivery of written agreement not essential to validity. Where a contract in writing is entered into whereby in consideration of the assignment to the party of the first part of a judgment rendered in favor of the parties of the second part against a third person, the party of the first part agrees to make certain payments to other persons, a delivery of the contract to the parties of the second part is not essential to its validity.
    “This agreement, entered between Henry Levy, party of the first part, and Nathan Smelnitzky and Louis Astor, parties of the second part; Witnesseth: Whereas, said parties have assigned a certain judgment in favor of themselves against Annie Perlman for the sum of $650, of which sum $150 are due to Levy & Levy for legal fees, and in consideration of the said assignment the said Henry Levy, assignee, hereby undertakes to pay the $500 to the following persons: Sam Levitón, lumberman, the sum of $200 on less; Bothbaum, on account of judgment, $200 or less, and the balance to the North Side Sash and Door Co.
    “Witness, our hands and seals this 29th day of April, 1913.
    Henry Levy, N. Smalinsky, Louis Astor.”
    To reverse a judgment for plaintiffs, defendant prosecutes this writ of error.
    I. B. Perlman, for plaintiff in error; M. A. Milkewitch, of counsel.
    Harry H. Levy, for defendant in error.

      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. Presiding Justice McSurely

delivered the opinion of the court.

3. Evidence, § 333 —when evidence as to consideration for contract admissible. In an action on a contract whereby one party agrees to pay certain sums in consideration of the assignment to him of a judgment in favor of the other party against a third person, evidence that there was no judgment against such person at the time the contract was executed, and that the first party did not collect any money on the judgment, is admissible.


text:
    Leviton Lumber Company, Plaintiff in Error, v. Henry Levy, Defendant in Error.
    Gen. No. 20,723.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. La Buy, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and judgment in this court.
    Opinion filed November 1, 1915.
    Statement of the Case.
    Action by Leviton Lumber Company, a corporation, plaintiff, against Henry Levy, defendant. This case grew out of the contract involved in Rothbaum & Astrahan v. Levy, ante, p. —, and was consolidated for hearing with the latter case. Judgment of the lower court for defendant was reversed and entered for plaintiff.
    I. B. Perlman, for plaintiff in error; M. A. Milkewitch, of counsel.
    Harry H. Levy, for defendant in error.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Arthur Hofman, Appellee, v. Chicago League Ball Club, Appellant.
    Gen. No. 20,844.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed November 1, 1915.
    Rehearing denied November 15, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Arthur Hofman, plaintiff, against Chicago League Ball Club, defendant, to recover a balance of salary claimed to be due under a contract of employment. From a judgment for plaintiff for $2,944.47, defendant appeals.
    The evidence shows that plaintiff is a professional baseball player, and that defendant is engaged in giving exhibitions of games of baseball with a club known as the Chicago National League Baseball Club.
    On February 23, 1911, plaintiff entered into a written contract with defendant by which it was agreed that plaintiff should play ball for defendant and for. no other party, except with defendant’s consent, during the series of 1911 and 1912. He was to receive a salary of $5,000 a year in semimonthly instalments, and an allowance for uniforms, traveling expenses, etc. The baseball season was to begin about April 12th and end about October 12th of each year. The contract also provided that defendant might give plaintiff ten days ’ written notice to end its obligation under the contract. Plaintiff entered into the service of defendant and played during the season of 1911, and during 1912 up to May 30th.
    _ The parties stipulated the following facts as if proven: That on May 29, 1912, the defendant and the Pittsburg Club made an exchange of players under terms set out in certain telegrams and letters, which contained, in brief, an arrangement for the Chicago Club to trade the plaintiff and another player to the Pittsburg Club for two of its players, and in a letter dated May 29th to defendant from the Pittsburg Club the latter club says: “The Pittsburg Athletic Company will, of course, assume the contract which the Chicago League Baseball Club now has with Mr. Hofman and Mr. Cole.” It was also stipulated “that the Chicago League Ball Club contract with Hofman was duly assigned to and accepted by the Pittsburg Athletic Company, by the defendant, and approved by the president of the National League of Professional Baseball Clubs.”
    On May 30th defendant wrote to plaintiff, in part, as follows: ,
    “Mr. A. P. Hofman,
    West Side Ball Park, City.
    Dear Sir:
    “This is to inform you that your services have been released to the Pittsburg Club of the National League, to take effect immediately, and Manager Clarke of that Club requests that you report to him at Philadelphia in time for Saturday’s game.
    “Tour contract with the Chicago Club has been assigned over to the Pittsburg Club and will be carried out by that Club.”
    There was no evidence of any knowledge on the part of plaintiff of anything pertaining to the exchange other than that imparted by this letter. Plaintiff thereupon went to Pittsburg and played with that club. No written contract was made between him and the Pitts-burg Club, but it paid him-sums of money from time to time to the end of the season, aggregating $697.47, which was less than the salary he was to receive for the same period under the Chicago Club contract by $2,944.47. On asking the president of the Pittsburg Club for more money, plaintiff was told to collect from the Chicago Club as his contract was with it and not with the Pittsburg Club.

      Abstract of the Decision.
    1. Novation, § 1*—what essential requisites. The essential requisites of a novation are a previous valid obligation, the agreement of all the parties to the new contract, the extinguishment of the old contract and the validity of the new one.
    2. Novation, § 2*—when evidence insufficient to show assent to new contract. Evidence in an action on a contract examined and held insufficient to show the assent essential to the cancellation of the old contract and the assent of a new one.
    3. Appeal and error, § 1466*—when error harmless. In an action to recover on a contract, error in reading a portion of plaintiff’s statement of claim to the jury and in refusing to strike out portions of the statement are not grounds for reversal where the defense is a novation of the contract and the Appellate Court finds as a matter of law that there was no novation.
    Defendant claimed that there was a novation of the contract, the original contract between plaintiff and defendant being extinguished and its place taken by a new contract between plaintiff and the Pittsburg Club.
    Wilkerson & Cassels, for appellant; Edwin H. Cassels and Kenneth B. Hawkins, of counsel.
    Roy D. Keehn, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Frank A. Aoskad, Appellee, v. Packard Motor Car Company of Chicago, Appellant.
    Gen. No. 20,941.
    Chattel mortgages, § 267

      —when report of sale under power in mortgage insufficient. A report to the mortgagor of the sale of mortgaged chattels under a power of sale in the mortgage does not sufficiently comply with the requirements of Hurd’s Ill. St. 1913, ch. 95. sec. 26 (J. & A. ¶ 7603), where it omits to give the name of the purchaser or purchasers of the chattels, even though the mortgagor made no inquiry of the mortgagee as to the purchaser's name and was not injured by his lack of knowledge.
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed November 1, 1915.
    Mayer, Meyer, Austrian & Platt, for appellant.
    Howard W. Hates, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff had judgment for $1,333.33 in an action to recover the penalty provided in section 26, ch. 95, Ill. St. 1913 (J. & A. ¶ 7603). This section provides, in brief, that after sales are made of personal property under any power of sale in a chattel mortgage, “the mortgagee shall make out a statement showing the items of personal property sold, the names of each purchaser and the amount for which each article sold, and also an itemized statement of the necessary reasonable expenses incurred in taking, keeping and selling said property, and shall deliver the same to the mortgagor or some one of them in person or by mail, and if he fails so to do within ten days after said sale, the owner of said property may sue for and recover one-third of the value of the property so sold, from the mortgagee or person making said sale as assignee of said mortgagee.”

It is stipulated that two Packard truck chassis belonging to plaintiff, each subject to a chattel mortgage, were sold under the respective powers of sale by defendant, the mortgagee. Within ten days thereafter, statements of each sale were delivered to plaintiff, the mortgagor, which apparently met with all the requirements of the above statute except that the name of the purchaser or purchasers at the sales was not given in either statement.

Plaintiff claims that by reason of this omission the statute has not been complied with, and defendant claims there has been a substantial compliance.

We cannot hold there is a substantial compliance with the statute when a distinct and unambiguous requirement is omitted. If the omission of one- requisite is not fatal, it could with equal force be said that with two requirements omitted there is still a substantial compliance, and if with two omitted, why not with three or more? Where shall the line be drawn? We see no reason to hold that any one of the statutory requirements may be omitted. Neither does it avail to show either that the mortgagor did not inquire of the mortgagee for the name of the, purchaser or was not injured by his lack of knowledge. The statute places upon the mortgagee the duty of supplying this information to the mortgagor, regardless of other sources of information he may have, or resulting harm or benefit to him.

We cannot construe even a penal statute so liberally as to supply something wholly lacldng. We might construe an imperfect attempt to state an item of required information so as to give effect to what was intended, but we must have something tó start with; we cannot construe something into being from nothing.

The trial court properly refused to hold as propositions of law that the notices furnished by the defendant to the plaintiff were in substantial compliance with the Chattel Mortgage Act (J. & A. ¶ 7603), and also that the defendant did not fail to furnish the information required by law.

The judgment is affirmed.

Affirmed.


text:
    Esther Mann, Appellee, v. Henry A. Blair and John M. Roach, Receivers, Appellants.
    Gen. No. 21,013.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed November 1, 1915.
    Statement of the Case.
    Action by Esther Mann, plaintiff, against Henry A. Blair and John M. Roach, as receivers of Chicago Railways Company, defendants, to recover for injuries alleged to have been received while a passenger on defendants ’ street car through negligence in its operation. There was a judgment for plaintiff for $3,000, from which defendants appeal.
    The testimony shows that as the car was proceeding along the street there was a burst of flame from the controller, and panic followed, causing injuries to some of the passengers, including plaintiff. The closely contested point concerns the extent of plaintiff’s injuries, with special reference to whether the injury caused her to suffer from epilepsy. The evidence on this point was contradictory.
    On behalf of the defendants, Dr. Krohn basing his opinion on his experience, testified that plaintiff could not have suffered epilepsy as the result of the accident in question, saying, “Fright does not produce epilepsy.” The attorney for plaintiff, after having identified through the witness a book on nervous diseases written by Professor Starr, asked whether Professor Starr did not say in his book that “about one-half of the cases of epilepsy is caused by fright.” Questions to the same import were repeated and so framed as to appear to be statements of what was contained in Starr’s book. Objections were made and overruled and exceptions taken. At the conclusion of the taking of testimony, plaintiff’s attorney exhibited the book to the court and jury and stated, in effect, that he proposed to show by Professor Starr’s book that it was therein stated that epilepsy may be caused by fright.
    Abstract of the Decision.
    1. Trial, § 125

      —when use of books by counsel to contradict expert improper. In the cross-examination of a medical witness who bases his opinion upon his own personal observation, the conduct of counsel in asking, after identifying through the witness a scientific book, whether the author of the book did not state contrary conclusions from that of the witness, such questions being so framed as to appear to be statements of what was contained in the book, and in exhibiting the book to the court and jury and stating that he purposed to show by it that such contrary opinion was stated, constitutes reversible error.
    2. Street railroads, § 140

      —when instructions in action against misleading. In an action against a street railroad company to recover for injuries alleged to have been caused plaintiff while a passenger in defendant’s car, an instruction that the jury in weighing the evidence shall take into consideration the fact that certain witnesses were in defendant’s employ is misleading.
    Robert J. Slater and Frank L. Kriete, for appellants; W. W. Gurley and J. R. Guilliams, of counsel.
    Jacob Levy, for appellee; Josiah Burnham, of counsel.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Justice Baker

text:
    The People of the State of Illinois ex rel. Tony Blasi and Hector Durante, Appellees, v. James H. Burdett, Appellant.
    Gen. No. 20,296.
    1. Prohibition, § 1

      —when writ will lie. To warrant the issue of a writ of prohibition against official action, the action sought to be restrained must be judicial in character and' must be one not in the jurisdiction of the tribunal or officer in question.
    2. Civil service, § 10

      —when hearing of charges not judicial function. The hearing of charges against officers in classified civil service under the authority granted by section 12 of the State Civil Service Act (J. & A. If 10638) is not the exercise of a judicial function.
    3. Prohibition, § 2

      —when issue against member of State Civil Service Commission unauthorised. The issue of a writ of prohibition prohibiting a member of the State Civil Service Commission from hearing charges against the relators, officers in the classified civil service, in the manner provided by section 12 of the State Civil Service Act (J. & A. If 10038) is unauthorized.

      4. Prohibition, § 2

      —when writ will not lie. A writ of prohibition does not lie to bring before the higher tribunal matters which may properly be brought before it by writ of error or certiorari, nor to correct errors of inferior tribunals whereof they have jurisdiction.
    5. Civil service, § 26

      —when proceedings of State Civil Service Commission reviewable by certiorari. A writ of certiorari will lie to review the proceedings of the State Civil Service Commission, held under section 12 of the State Civil Service Act (J. & A. If 10638), discharging officers in the classified civil service.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in this court at the March term, 1914.
    Reversed.
    Opinion filed November 1, 1915.
    William B. Moulton and John J. Poulton, for appellant.
    Adolph Marks, for appellees.

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

   Mr. Justice Baker

delivered the opinion of the court.

The relators, employees of the State Civil Service Commission of Illinois, filed in the Circuit Court their petition praying that a writ of prohibition issue prohibiting James H. Burdett, a member of such commission and the president thereof, from taking any part in the hearing of the charges filed by Richard J. Knight- against relators for the purpose of securing their discharge and removal from the classified civil service of the State. The defendant, appellant here, demurred to the petition. The demurrer was overruled, and he electing to abide, the court gave judgment for the plaintiff and ordered that defendant be prohibited from enforcing any order, finding or decision and from entering on any hearing pertaining to any charges filed against the relators, and from counseling or advising with the other Civil Service Commissioners of the State pertaining to the charges against the relators. From this order the present appeal is prosecuted.

Section 12 of the State Civil Service Act (J. & A. ¶ 10638) provides that charges may be investigated by or before said Civil Service Commission or some officer or board appointed by said commission to conduct such investigation, and that “the finding and decision of such commission or such investigating officer or board, when approved by said commission, shall be certified to the appointing officer and shall be forthwith enforced by such officer.” ' The petition alleges that defendant Burdett intended to hear said charges, that he intended to disregard the rules of evidence, was prejudiced against relators, and that they could not have a fair and impartial trial before him, and that they were not guilty of said charges. There is in the petition no allegation that Burdett could discharge the relators nor that they were without other remedy or right of review of the matter complained of, or that Burdett was acting in a judicial capacity.

The functions whose exercise may be restrained by the writ of prohibition are judicial. Section 12 of the City Civil Service Act, Hurd’s St. 1913, p. 401 (J. & A. ¶ 1811) is identical with section 12 of the State Civil Service Act, p. 491 (J. & A. ¶ 10636).

In People ex rel. Miller v. City of Chicago, 234 Ill. 416, it was held that section 12 of the City Civil Service Act providing that charges against officers in classified civil service shall be investigated “by the Civil Service Commission or before some officer or board appointed by said commission,” does not vest judicial power in the commission nor amount to a delegation of judicial power by the commission to the officer or board appointed, and it was said: “The removal of an officer is not the exercise of a judicial power, as there is no such thing as title or property in a public office. Donahue v. County of Will, 100 Ill. 94; Stern v. People, 102 id. 540.” Not only must the actions sought to be restrained be the actions of a tribunal acting in a judicial capacity, but such actions or threatened actions sought to be restrained must be transactions not within the jurisdiction of the tribunal or officer in question. People v. Cook County Circuit Court, 173 Ill. 272. “An act is none the less ministerial because the person performing it may have to satisfy himself that a state of facts exists under which it is his right and duty to perform the act.” Flournoy v. City of Jeffersonville, 17 Ind. 169.

The acts which Burdett was restrained from performing were ministerial and administrative, not judicial, and for that reason the writ of prohibition would not run against him. “A writ of prohibition can only be issued to restrain the exercise of judicial functions. * * * It cannot be made to serve the purpose of a writ of error or certiorari, to correct mistakes of an inferior court or tribunal in deciding any question of law or fact within its jurisdiction.” Smith v. Whitney, 116 U. S. 167.

“The appropriate function of the remedy (by prohibition) is to restrain the exercise of unauthorized judicial or quasi judicial power, which is regarded as a contempt of the State or sovereign, and which may result in injury to the State or to its citizens. Three conditions are necessary to warrant the granting of the relief: First, that the court, officer or person against whom it is sought is about to exercise judicial or quasi judicial power; second, that the exercise of such power is unauthorized by law; third, that it will result in injury for which no other adequate remedy exists. And the remedy may be invoked against any body of persons or officers assuming to exercise judicial or quasi judicial powers, although not strictly or technically a court.” High on Extraordinary Remedies, sec. 764a. A writ of prohibition does not lie to bring before the higher tribunal matters which may properly be brought before it by writ of error or certiorari, and cannot be used to correct errors of inferior tribunals whereof they have jurisdiction. People v. Cook County Circuit Court, 173 Ill. 272. The petitioners had the right of review by writ of certiorari, resorted to in this State in these proceedings. People v. Lindblom, 182 Ill. 241; Joyce v. City of Chicago, 216 Ill. 466; Powell v. Bullis, 221 Ill. 380.

In view of the authorities cited it is, we think, a fatal objection to the relators’ right to the writ, that they had, in the event they were discharged, the right of review of the proceedings of the State Civil Service Commission by certiorari.

In our opinion, the facts stated in the petition are insufficient to authorize the issuing of the writ of prohibition, and the court erred in overruling defendant’s demurrer to the petition and in ordering that the writ issue.

The judgment of the Circuit Court is reversed.

Reversed.


text:
    F. J. Haggarty Company, Defendant in Error, v. M. G. Conley, Plaintiff in Error.
    Gen. No. 20,310.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Thomas F. Scully, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed November 1, 1915.
    Rehearing denied November 15, 1915.
    Statement of the Case.
    Action by F. J. Haggarty Company, a corporation, plaintiff, against M. Gr. Conley, defendant, for $75 alleged to have been overpaid by plaintiff to defendant by mistake. Defendant claimed a set-off of $911.50. There was a judgment for plaintiff, to reverse which defendant prosecutes this writ of error.
    The evidence showed that Frank J. Haggarty for some years prior to January 31, 1911, was a partner with his father in the teaming business under the name of M. C. Haggarty & Son, and on that day the firm was dissolved and M. C. Haggarty took all the property and assets of the firm. From January 31 to April 13, 1911, Frank J. Haggarty did some teaming business on brokerage, but had no teams, wagons, trucks or other assets of his own. April 14th a corporation was organized under the name of F. J. Haggarty Company, with an authorized capital of $5,000. F. J. Haggarty subscribed for $2,500 of the capital stock, W. E. Hall for $2,400, and John Kercher for $100. Frank J. Haggarty’s wife paid for the $2,500 stock subscribed for by him, and $2,400 of the stock was transferred to her. Hall and Kercher paid for the stock subscribed by them- respectively. Neither Mrs. Haggarty, Hall nor Kercher were interested in or in any way connected with the teaming business carried on by Frank J. Haggarty prior to the organization of the corporation.
    Points relied upon for reversal were: First. Where an organization or association of persons take a name which imports a corporate existence and do business and contract under that name, they will be estopped to deny that they are a corporation; second, that where a corporation is a mere continuation of the same business previously transacted by the same parties, it must be presumed to be bound by the obligations which such business is liable for. The contention of defendant in error is that the facts disclosed do not bring the case within the rules of law so stated.
    Abstract of the Decision.
    1. Corporations, § 57

      —when evidence insufficient to estop denial of corporate existence. Evidence examined in an action by a corporation to recover an amount alleged to have been paid by mistake on a debt incurred by another before its incorporation, and held insufficient to show that there was an organization or association of persons doing business under the corporate name before plaintiff received its charter.
    2. Corporations, § 472

      —when evidence insufficient to show corporation a continuation of another business. Evidence in action by corporation examined and held insufficient to show that the corporation was a mere continuation of the same business previously conducted by the same parties.
    Coburn & Bentley, for plaintiff in error.
    Francis E. Croarkin, for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    Simon T. Sutton, Administrator, Plaintiff in Error, v. City of Chicago, Defendant in Error.
    Gen. No. 20,422.
    1. Negligence, § 112

      —when negligence of driver of automobile not imputed to guest. The negligence of the driver of an automobile cannot be imputed to one riding therein as guest of the driver.
    2. Negligence, § 191

      —when a question of fact for the jury. In an action against a municipal corporation to recover for the death of one drowned by an automobile in -which he was riding running into an open drawbridge maintained by a municipality, where the evidence shows that the deceased was one of a party of eight in the automobile who, including the chauffeur, had been drinking for about six hours, the question whether deceased was negligent in riding in the machine, under the circumstances, was one of fact for the jury.
    3. Appeal and error, § 1410

      —when evidence sufficient to warrant finding of drunkenness. In an action to recover for the death of a person drowned by an automobile running into an open drawbridge, evidence examined and held sufficient to support a finding that deceased and other members of the party were intoxicated.
    4. Negligence, § 188

      —when evidence sufficient to show injury not result of an accident. In an action to recover for the death of one drowned by an automobile running into an' open drawbridge, where the evidence shows that the chauffeur was so drunk that he did not know in what direction he was going, the occurrence cannot be considered an accident but rather a probable result of the conditions.
    5. Negligence, § 208

      —when instructions as to contributory negligence proper. In an action to recover for the death of one drowned by the running into an open drawbridge of an automobile driven by a drunken chauffeur, it is not error to instruct that there would be no recovery unless the jury find that the deceased himself was guilty of no negligence contributing to the injury, and exercised ordinary care to avoid the occurrence alleged.
    6. Appeal and error, § 1523

      —when giving of instructions harmless error. The giving of an improper instruction is not ground for reversal where such instruction is not calculated to mislead the jury.
    7. Appeal and error, § 1514

      —lohen reference in argument of counsel to contradictory statements not ground for reversal. Where defendant introduces evidence of previous statements by witness for plaintiff contradicting his evidence on the stand, reference by counsel for defendant in the course of his argument to the evidence of such contradictory statements is not ground for reversal.
    Error to the Superior Court of Cook county; the Hon. Joseph E. Fitch, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed November 1, 1915.
    Rehearing denied November 15, 1915.
    John C. King & James D. Power, for plaintiff in error.
    M. L. Piotrowski, for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.

This is a writ of error to reverse a judgment of nil capiat rendered on a verdict of not guilty in an action for wrongful death. Plaintiff’s intestate was riding in an automobile, at the invitation of the driver, which ran into an open drawbridge at Torrence avenue and the Calumet River and he was drowned. The negligence alleged was that the defendant negligently permitted the bridge to be open.

We think the evidence proves the negligence alleged, and the questions presented relate to alleged errors in procedure and to the question whether the jury might from the evidence properly find that the deceased was guilty of contributory negligence.

By invitation of Morschbacher, three men and four women set out on a “joy ride” in the machine driven by him about four o ’clock in the morning. The women were inmates of a house of prostitution at 2106 Armour avenue, and the men were chauffeurs. They had all been drinking before starting and stopped at several places on their way to South Chicago and drank more. They stopped at two sporting houses in South Chicago, had drinks and danced and left the last one, “The Black Diamond,” between five and six o’clock, intending to go back to the place from which they started, which is ten miles, or further, north of “The Black Diamond.” From the evidence the jury might properly find that they were all intoxicated when they left “The Black Diamond.” Morschbacher sat on the driver’s seat with one of the women by his side. A man and a woman sat on the swivel seats behind them. On the rear seat Kingdom sat with May Kelly on his lap and plaintiff’s intestate with Margaret Atkins on his lap. Morschbacher testified that he did not know the direction he was traveling. When going in a westerly direction he reached Torrence avenue, and instead of turning to the right, as he must to go north, the direction which he wished to go, turned to the left and went south, away from 2106 Armour avenue. This brought him to the Torrence avenue'bridge. The street at the bridge is seven feet higher than it is two hundred feet north. Morschbacher saw that there was a bridge ahead when he was two hundred feet from it, but he drove on up the grade until within twenty feet of the bridge, when, he testified, he first saw that it was open; that he then made every effort in his power to stop the machine, but was unable to do so and it went into the river. There was evidence that the machine, going at the rate of twelve miles an hour, as he testified it was, on the grade in question, could be stopped within less than twenty feet; and we think that the question whether-he was guilty of negligence is one of fact on which the verdict must be held conclusive.

The negligence of Morschbacher cannot be imputed to the deceased; but the question presented here is whether the deceased was negligent in riding in the machine driven by Morschbacher under the facts and circumstances disclosed by the evidence. We think that this also was a question of fact on which the verdict of the jury must be held conclusive.

Here was a party of eight, who had been drinking since midnight, and, as the jury might properly find, were all drunk, so that they did not even know that they were going away from home when they wanted to go home, indulging! in a “joy ride.” That the machine should run into an open draw was not perhaps to be anticipated, but that a ride in an automobile under such circumstances with,such a chauffeur was attended with danger to the passengers, was obvious. The occurrence was not an accident, using the word as meaning an event without apparent cause, but rather a probable result of the causes and conditions shown by the evidence.

Plaintiff in error contends that the court erred in instructing the jury that the plaintiff could not recover unless they found: “3rd. That the deceased himself was guilty of no negligence contributing to the injury and exercised ordinary care to avoid the occurrence alleged.” With this contention we cannot agree.

Instructions 4, 5 and 6 state the degree of care necessary to be exercised in the maintenance of the bridge. As no complaint was made as to the condition of the bridge, but only as to its operation, these instructions should not have been given; but we do not think that they were calculated to mislead the jury, or that for the giving of them the judgment should be reversed.

It is further contended that the court erred in permitting counsel for the defendant to argue to the jury the question whether the speedometer was working. Morschbacher testified that it was. Defendant introduced evidence of previous statements by Morschbacher that it was; out of order and was not working. While evidence of such previous statements do not tend to prove the fact, it was admissible for the purpose of impeaching the witness only, and counsel had the right to refer to the evidence of contradictory statements of Morschbacher, and we see nothing in the argument made that warrants or requires the reversal of the judgment. ■

We think the record is free from reversible error, and the judgment is affirmed.

Affirmed.


text:
    Friedrich Heinz, Defendant in Error, v. Baldwin County Colonization Company, Plaintiff in Error.
    Gen. No. 20,490.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed November 1, 1915.
    Statement of the Case.
    Action by Friedrich Heinz, plaintiff, against Baldwin County Colonization Company, a corporation, defendant, to recover $251 paid by plaintiff to defendant on a contract entered into April 1, 1909, for the purchase of certain real estate of defendant for $1,000, the contract having been entered into while plaintiff was a minor. The court gave plaintiff judgment for the amount claimed, and to reverse such judgment this writ of error is prosecuted.
    Abstract of the Decision.
    1. Appeal and error, § 1377

      —when refusal to permit further cross-emarmnation of plaintiff not ground for reversal. The refusal of the trial court, after a plaintiff called as a witness in his own behalf had been examined and cross-examined and after two postponements of the hearing, to permit him to be recalled for further cross-examination, held not an abuse of the trial court’s discretion.

      The trial began February 10, 1914. . Plaintiff was called as a witness in his own behalf, was examined and cross-examined, and the further hearing of the cause was then postponed to February 28th. It was further postponed to April 3rd. April 1st defendant’s attorney gave notice to plaintiff’s attorney that he desired to further cross-examine plaintiff, and, if not produced, he would move to strike out his testimony. He was not produced. Defendant’s motion to strike out his testimony was denied.
    Plaintiff became of age December 12,1909. In April,' 1910, and again in October, 1912, he informed the defendant that he did not want to keep the land and demanded his money back. The land was not conveyed to the plaintiff, but a contract of purchase and sale was entered into. Defendant offered to repay bim $75 of the $251 that he paid, but he declined the offer.
    Sabath, Stafford & Sabath, for plaintiff in error.
    John M. Bryant, for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.

2. Infants, § 23 —when disaffirmance of contract in reasonable time. Evidence examined in action to recover purchase price paid by infant on purchase price of land, and held to show that contract had been disaffirmed in reasonable time after plaintiff had arrived at age.


text:
    United States Casualty Company, Plaintiff in Error, v. Crown Novelty Company, Defendant in Error.
    Gen. No. 20,595.
    1. Contracts, § 187

      -when construction bp parties to be followed. When parties to an ambiguous contract by their own acts place a construction upon it, such construction is the best evidence of what the contract was supposed to mean.
    2. Insurance, § 155

      —when evidence insufficient to support verdict. Evidence in an action to recover unpaid premiums on an-insurance policy, examined and held insufficient to support the verdict.
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and judgment here.
    Opinion filed November 1, 1915.
    Moses, Rosenthal & Kennedy, for plaintiff in error; Sigmund W. David, of counsel.
    J. F. Dammann, Jr., for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.

This is a suit for unpaid premiums on an insurance policy and an indorsement, covering the insurance of employees. April 23, 1912, the defendant, defendant in error here, insured itself with the plaintiff corporation, plaintiff in error here, against its common-law liability for accident to its employees. May 1, 1912, defendant further insured itself by an indorsement, which was attached to and made a part of the original policy, which covered only the liability of defendant to its employees arising by virtue of the Workingmen’s Compensation Law of 1911 (J. & A. ¶ 5449). The policy and indorsement each provide that the amount of premium is based on an estimated pay roll, and that the premium shall finally be determined by the amount of the actual pay roll during the periods covered by the policy and the indorsement. At the time the policy and indorsement were issued the premiums were tentatively fixed on an estimated pay roll of $40,000. The premium rate per $100 as stated in the original policy was 36 cents. The premium rate as stated in the indorsement per $100 was $1.89. At the end of the year it was found that the actual pay roll during the year was $58,365.60.

Suit was brought by the plaintiff to recover premiums for the amount of the excess of the pay roll over $40,000. It is conceded that plaintiff is entitled to premiums based upon the p.ay roll of $58,365.60, but the contention of defendant in error is that the premium rate for both the original policy and the indorsement is $1.89, and the contention of plaintiff in error is that the premium rate is 36 cents for the original policy and $1.89 for the indorsement, or a total rate of $2.25 on the pay roll. The court sustained the contention of the defendant and gave judgment for $226.65, and the plaintiff in error asks that such judgment be reversed and judgment entered here in favor of the plaintiff for $436.75, the amount of premiums unpaid, if plaintiff is entitled to recover premiums at the rate of $2.25 on the pay roll.

The indorsement is called “Combination Coverage” and provides that in consideration of the premium for which this policy is issued, this policy is hereby extended to cover the liability of the assured under the Compensation Act of 1911 (J. & A. ¶ 5449), and further provides as follows:

“The premium for this Endorsement is based upon the entire compensation for services, of which an estimate is hereinafter given. The premium rate or rates for this Endorsement' are those hereinafter set forth, and apply to each one H-undred Dollars ($100.00) of the entire compensation for services during the period of this Endorsement. The earned premium for this Endorsement shall be determined in the manner set forth in the policy. * * * Premium rate per $100 of Compensation for services, $1.89.”

The original policy in terms provides that it does not cover any obligation assumed by or imposed upon the insured by any compensation agreement, plan or law.

Defendant introduced in evidence a book called “Manual of Liability for Workingmen’s Compensation Insurance,” and gave evidence tending to show _ that “Combination Coverage” meant the covering of all employees against the Illinois Act or any common-law liability prior to the Compensation Act.

We see no ground for the contention that the policy and indorsement are ambiguous or uncertain. Their terms state that the rate for one is 36 cents, and for the other one $1.89 per $100 of the pay roll, a total rate of $2.25. But if it be conceded that the policy and indorsement are ambiguous, the parties have already construed the contract, and when parties to an ambiguous contract by their own acts place a construction upon it, that construction is the best evidence of what a contract supposedly ambiguous was actually intended to mean. The plaintiff rendered to defendant a bill for the amount of premium due upon the original policy upon an estimated pay roll of $40,000 at 36 cents per $100, and another bill at the rate of $1.89 on the same estimated pay roll for the indorsement, and defendant without objection paid both bills.

The judgment of the Municipal Court is reversed and judgment will be entered here in favor of the plaintiff and against the defendant for $436.75, and the costs in this court.

Reversed and judgment here.


text:
    Bert S. Barber, Plaintiff in Error, v. Travelers’ Insurance Company, Defendant in Error. Marion Belle Barber, Plaintiff in Error, v. Travelers’ Insurance Company, Defendant in Error.
    Gen. No. 20,738. Gen. No. 20,739.
    (Not to be reported in full.)
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed November 1, 1915.
    Statement of the Case.
    Action by Bert S. Barber, plaintiff, against Travelers ’ Insurance Company, defendant, and by Marion Belle Barber, plaintiff, against Travelers’ Insurance Company, defendant, each to recover on an accident policy issued by defendant to Lyman W. Barber, the beneficiary named in one policy being Bert S. Barber and in the other Marion Belle Barber. There was judgment for defendant in both actions, to reverse which plaintiffs prosecute these writs of error.
    A former trial of the same cases on the same evidence, with the exception of the testimony of Irma Palmer and Mildred Shippey, which testimony was first introduced on the present trial by defendant, resulted in judgment for the respective plaintiffs, which was reversed by this court and the causes remanded. Barber v. Travelers’ Ins. Co., 165 Ill. App. 239. In the opinion then filed the pleadings and questions involved were fully stated. The policy provided: “That this insurance shall not cover * * * death * * * resulting wholly or partly, directly or indirectly, from intoxication or while intoxicated.” The defense on both trials was practically that the assured at the time he came to his death was intoxicated. HA left his office about six p. m. of January 4, 1908, went to a saloon and remained three-quarters of an hour, had there one or two drinks of whisky, then went to supper and after supper had more whisky and also drank'beer; about nine o’clock he went to another saloon and then to the “Savoy,” where he remained an hour or longer, and drank beer; then about eleven o’clock he went to a house of ill-fame, where he had beer; a little later he went to another house of the same class in the same district, and there remained two hours or longer and drank beer, he went up stairs with Mildred Shippey, an inmate, and, according to her testimony and the testimony of two other inmates of the house, was then intoxicated, vomited and had to be helped up and down stairs. About 1:30 a. m. he went in a cab to a saloon nearby, and then to another house of ill-fame, on leaving which he took a girl into the cab and took her three blocks south of the saloon from which they started and in the direction of the assured’s home. Thereafter the assured rode in the cab to the Old Colony Building, nearly two miles north of the place where the girl left the cab. .When he reached there he dismissed the cabman, walked up stairs to the elevated railway station, and took a southbound elevated train at 3:30 a. m. His dead body was found the next morning under the elevated railway station at the Twenty-sixth street station. The evidence showed that he fell from the car on which he was riding at that place and was thereby killed.
    The defendant called five physicians and propounded to each the same hypothetical question, stating quite fully the appearance, history and actions of the assured from six p. m. of January 4th until half past three o’clock the next morning, and included the assumption that he staggered, was unable to talk coherently, spoke only a few words and those merely in monosyllables. The question asked was: “Assuming the facts stated in the question, have you an opinion as to whether that man was or was not intoxicated about 4 a. m. the next morning?” Over the objection of plaintiff the question was permitted to be answered, and the answer by each physician was, in substance, that he had an opinion that the man was intoxicated and that the intoxication would probably continue three or four hours from four o’clock. One of the contentions of the defendant is that the court erred in permitting the hypothetical question to be answered.
    Abstract of the Decision.
    1. Appeal and error, § 1507*—when form of hypothetical question not ground for reversal. Form of hypothetical question to expert in action on accident insurance policy examined and held not ground for reversal.
    2. Insurance, § 667*—when evidence sufficient to support finding that insured died while intoxicated. Evidence in action on accident insurance policy examined and held to support finding that insured came to his death while intoxicated.
    Worth E. Caylor, for plaintiffs in error.
    Frank M. Cox and R. J. Fellingham, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Maclay Hoyne, Plaintiff in Error.
    Gen. No. 20,759.
    1. Appeal and error, § 784

      —when matters of not formally given in evidence may he incorporated in hill of exceptions. Semble, that matters which transpire in the presence of the court, rules of court and generally those matters of which the court takes judicial notice, may be incorporated in the hill of exceptions, even though not formally given in evidence. '
    2. Appeal and error, § 784

      —what matters cannot he incorporated in hill of exceptions hy order of court. Statements of acts and transactions not occurring in the presence of the court,, and writings not presented to the court while in session and not shown by the evidence, cannot be incorporated in the bill of exceptions by order of the court.
    3. Contempt, § 30

      —when criticisms of past conduct of judge not criminal contempt. Criticisms of the conduct of a judge of the Superior Court when sitting as a judge of the Criminal Court of Cook county, relative to his acts in summoning and' continuing a special grand jury and appointing a Special State’s Attorney, do not constitute criminal contempt of such judge when made after the judge was no longer sitting as a judge of the Criminal Court, and when none of the indictments returned by such special jury were pending before him and without reference to a trial on any of such indictments.
    Error to the Criminal Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed.
    Opinion filed November 1, 1915.
    Everett Jennings and S. S. Gregory, for plaintiff in error.
    John E. Northup, for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.

This writ of error brings in review a judgment of the Criminal Court of Cook county, whereby respondent Hoyne, State’s Attorney of Cook county, plaintiff in error here, was adjudged guilty of a contempt of that court, fined five hundred dollars and committed to the county jail for ten days therefor.

By order of Judge Cooper, a judge of the Superior Court, then sitting in the Criminal Court, entered May 29, 1913, a special grand jury was called to inquire into the matters pertaining to the choice of a State’s Attorney at the election of November 5,1912, and John E. Northup was appointed Special State’s Attorney.

May 28, 1914, respondent made a speech before a certain club in Chicago. The information filed by the Special State’s Attorney July 9,1914, alleged that said special grand jury had been continued from time to time up to the time of the filing of the information and still had certain duties to discharge in relation to the things and matters it was impaneled to consider; that it had returned indictments against certain persons, charging them with the commission of crimes in connection with said election, and that a number of said indictments were still pending and undisposed of; that in said speech respondent, “wrongfully, unlawfully, maliciously and contemptuously, for the purpose and with the intent of bringing said court in which the proceedings aforesaid were had, and Judge Cooper, who was the judge presiding over said court, into disrepute and ridicule, and to cause the people to have a feeling of contempt of said court and said judge, and for the purpose of causing it to be believed that said court and said judge were corrupt and influenced by corrupt motives in and about said matters, and for the purpose of impairing the reputation of said court and of said judge for integrity, honesty and efficiency in the administration of public justice, and for the purpose of thwarting the due administration of justice in said court as to said matters, and with the intent wilfully and contemptuously to oppose the proceedings and hinder the due administration of justice in said court concerning the matters then and there pending in said court, as aforesaid, and for the purpose of interfering with the prosecution and trial of defendants on the indictments pending as aforesaid, and to influence the verdicts of jurors before whom said prosecutions would come in the due administration of justice,” did make certain statements in the information set forth. The information further alleged that respondent said that Judge Cooper was prejudiced against him and that he gave reasons why he was prejudiced; that the application to Judge Cooper for impaneling a special grand jury and the appointment of a Special State’s Attorney was made in bad faith and was a plot to injure respondent politically; that said grand jury had no further work to do, but had been continued from month to month for political purposes; that respondent further said that Judge Kersten, thirty minutes before the order aforesaid was entered by. Judge Cooper, had entered a similar order, and put the question: Why did Judge Cooper enter the order? The information also alleged that in a newspaper report of said speech it was stated that respondent said that Judge Cooper was a “crook”; that Judge Cooper ,°°nt a letter of inquiry to respondent May 29, 1914, asking him if he made such an utterance as reported, and in answer to such letter respondent sent Judge Cooper a letter, which is set out in full in the information. In one of the interrogatories respondent was asked if he received a copy of Judge Cooper’s letter and if he made the reply thereto set out in the information, and in answer thereto said that he did receive the letter and made the answer set out in the information, and stated that the matter and statements in the letter are true; that it contained, in substance, a correct report of his speech and of what he said on that occasion, and denied that he made any other or different statement in regard to Judge Cooper on that occasion than those in the letter contained, and averred that the statements he then made in respect to matters of fact were true. It is not charged that the statement alleged to have been made by respondent that Judge Cooper was crazy was made with any evil intent, and it may be disregarded, as may the statement that Jtidge Cooper was a “crook,” which respondent denied that he made.

Respondent was ruled to answer the interrogatories and moved to discharge the rule on the ground of the insufficiency of the information in point of law. The motion was denied and a rule entered requiring informant to file interrogatories to be answered by the respondent, and the respondent was ruled to answer. Interrogatories were filed, and the respondent, having filed sworn answers thereto, moved to discharge the rule and dismiss the proceedings upon his sworn answers. This motion was overruled, defendant excepted, and afterwards the judgment which it is sought to reverse was entered. At the time the judgment was entered Judge Cooper filed a long opinion, in which he stated many facts not in the record, and directed that his opinion and a letter from respondent to the then chief justice of the Superior Court dated February 17, 1913, which, had not been offered in evidence and had not appeared in the record in any way, be made a part of the record.

The question presented is not as to what matters may be brought into a bill of exceptions. No doubt what transpires in the presence of the court, rules of court and generally all matters of which the court takes judicial knowledge, need not be formally given in evidence, but may go into the bill of exceptions. But statements of acts and transactions not occurring in the presence of the court, or writings not presented to the court while in session and not shown by the evidence, cannot be brought into a bill of exceptions nor can they be made a part of the record by the order of the court. In deciding this case we can only consider the information, supporting affidavits, interrogatories and sworn answers thereto. It appears from the 'record that at the time the speech in question was made, Judge Cooper was not sitting in the Criminal Court of Cook county, but was sitting in the Superior Court of Cook county, of which he is a judge. Buie 13 of the Criminal Court provides that the chief justice shall exercise the general administrative powers of the court, have charge of the calls of the docket, assignment of cases to the several branches and preparing of trial calendars or lists of cases. It is true that Judge Cooper was, under the provisions of the constitution, ex officio a "judge of the Criminal Court, but so were all of the judges of the Circuit and Superior Courts, and any one of such judges might have been assigned to the Criminal Court and the indictments returned by the special grand jury placed on his trial calendar for trial. We think that the respondent might properly consider Judge Cooper’s connection with the calling of a special grand jury and the appointment of a Special State’s Attorney as a matter then concluded and at an end, and his remarks, so far as they could be considered a criticism of Judge Cooper, a criticism of' him in respect of conduct then past, in a matter then concluded.

In Storey v. People, 79 Ill. 45, it was held that it is not admissible, under our constitution that a publication, however libelous, not directly calculated to hinder, obstruct or delay courts in the exercise of their proper functions, shall be treated and punished summarily as a contempt of court; that the utterance of a slander or the publication of a libel on a judge in relation to an act done by him in his official capacity, but which had no tendency directly to impede, embarrass or obstruct the courts in the exercise of their proper functions, cannot be summarily punished as a contempt of court. There is in the information no allegation that the utterances therein charged as a contempt of court were calculated to prevent the obtaining of a competent petit jury to try any of the defendants against whom indictments had been returned by the special grand jury, or that the judge, whoever he may be, whose duty it will be to preside during such trials will in any wise be affected thereby in the discharge of his duty.

The speech of the respondent, so far as it related to Judge Cooper, consisted entirely of criticisms of his past conduct while sitting in the Criminal Court of Cook county. To the argument that criticism of Judge Cooper might tend to affect unfavorably the cause of the State in any of the indictments returned by the special grand jury which might be brought for trial before him, the answer is, that in the Storey case, supra, indictments had been returned against Storey which were still pending when he grossly libeled and abused the grand jury which had returned the indictments. In this case it appears from the record that no one of the indictments was pending before Judge Cooper, and nothing respondent said related in any way to a trial on any one of snch indictments. The question is not whether the respondent slandered Judge Cooper, but whether a criminal contempt of court was committed by him. Our conclusion, after such careful consideration of the case as its importance demands, is that the respondent was not guilty of criminal contempt, and the judgment will therefore be reversed.

Reversed.


text:
    George M. Stevens et al., Appellees, v. Mary K. Plummer, Individually and as Administratrix, Appellant.
    Gen. No. 20,910.
    1. Mortgages, § 260

      —when payment not presumed. In the absence of proof to the contrary, it is presumed that a mortgage is a valid and subsisting lien.
    2. Judgment, § 633

      —when payment not presumed. In the absence of proof to the contrary, it is presumed that a judgment is a valid and subsisting lien.
    3. Partition, § 129

      —when judgment creditor of party to suit has no title to lands. In a suit to partition property, the holder of a judgment against one of the parties in interest has no right, title or estate in the lands.
    4. Partition, § 73

      —when payment of claims against property to he provided for m decree. It is not necessary that the decree for partition provide that claims and legal obligations against the estate sought to be partitioned shall be borne by the shares set off to the several owners or, in case of a sale of the land, shall be paid from the funds, but such provision may be made by the confirmatory decree.
    5. Partition, § 73

      —when decree of sale should state amount due under mortgage Men. Where, on partition, land is sold subject to the lien of an existing mortgage, the decree of sale should state the amount due, but if the land is sold free and clear of an existing mortgage, it is not necessary that the court ascertain the amount of the incumbrance before the decree of sale.
    6. Partition, § 73

      —what procedure proper on sale where mortgagee fails to prove amount due. Where the existence of a mortgage is alleged in a bill for partition and the mortgagee fails to appear and produce at the hearing proof of the amount due on the mortgage, if a sale is necessary, the court should decree a sale of the premises free and clear of the mortgage lien and should direct the proceeds to be brought into court, when the court may enter a rule that the money be paid within a certain time, unless the mortgagee should, before that time, make proof of the mortgage and the amount due thereon.
    7. Partition, § 69

      —when proof of amount due on incumbrance properly ordered. In a partition proceeding, where the bill is taken as confessed, if the court has reason to believe, or is apprehensive that injustice is likely to result from ordering a distribution of the proceeds of the partition sale without proof being made of the amount due on a mortgage on the property, it should require proof to be made.
    8. Judgment, § 296—when motion to vacate decree of distribution of proceeds of partition sale in time. A motion to vacate the decree of distribution of the proceeds of a partition sale is made in time when made two days after the entering of the decree and at the same term.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed November 1, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Statement by the Court. The bill in this case was filed for the partition of certain real estate of which Martha E. Trundle died seized. She placed on said real estate in her lifetime two trust deeds in the nature of mortgages, one to Edwin G-. Foreman, trustee, to secure her note for $4,000, the other to George N. Neise, trustee, to secure her note for $2,100, and devised the property subject to said two trust deeds as follows: An estate in an undivided one-half for the life of William H. Trundle, to George M. Stevens, trustee, with the remainder to said William H. Trundle, and the other undivided one-half to William T. J. Plummer. William T. J. Plummer died intestate without issue, and his widow, Mary K. Plummer, appellant here, became entitled to an undivided one-quarter interest in said real estate, and certain collateral heirs of William T. J. Plummer to one-quarter, subject to the dower interest therein of Mary K. Plummer.
    , The bill set out the facts above stated, alleged that the trust deeds were in force, and the place of residence of the owners of the notes thereby secured unknown; that E. M. Barnard claimed to have some interest in the premises by virtue of a judgment recovered October 10, 1910, against William T. J. Plummer, on which execution had been issued and returned unsatisfied, which judgment the bill alleged was then unsatisfied of record. All parties in interest, including the unknown holders of the notes secured by said two trust deeds, and Barnard, were made, defendants. Barnard entered his appearance, but did not answer or demur, and his default was entered and the bill taken as confessed against him November 7, 1912. Mary K. Plummer answered the bill, admitted the execution of the Neise trust deed and the recovery of the judgment, by Barnard against William T. J. Plummer, and alleged that William T. J. Plummer was at one time the owner of the note secured by the Neise trust deed, and that if it be true that Barnard was then the owner of the note secured by said trust deed, that the same was delivered to him by William T. J. Plummer as collateral security for his note for $2,125, on which the Barnard judgment was rendered, and averring that Barnard was not entitled to enforce more than one of said liens. There was an order of reference to a master, whose report stated that the Neise trust deed was executed and recorded but that neither the trustee nor the holder of the note thereby secured had appeared before him. The report does not mention the Barnard judgment.
    The decree of partition was entered February 6, 1913. It declares the rights of the respective tenants in common in the real estate subject to the lien of the Foreman and the Neise trust deeds “as the interest of the holders thereof may appear,” and appoints commissioners to make partition. The commissioners reported that partition could not be made. March 19, 1913, a decree of sale was entered, which ordered the master to sell the real estate subject to the lien of the Foreman trust deed and bring the proceeds of the sale into court to be distributed to the parties entitled thereto. The master sold the premises May 18th and made his report, showing the amount of money that would be in his hands when the purchaser paid - the amount of his bid. June 11,1913, an order of distribution was entered, which found that $7,400 remained in the hands of the master after paying all costs and expenses. The master was ordered to pay one-half of the amount to Stevens, trustee, to Mary K. Plummer a sum equal to her dower interest in an undivided one-half of said premises, and the remainder to her as administratrix of William T. J. Plummer to be distributed and administered in due course of administration. June 13th Barnard moved to vacate the order of distribution and for leave to file petition, and his motion was entered and continued until the next term of court, and an order made that the master retain the proceeds of the sale until the further order of the court. June 16th Barnard filed his petition, alleged that he was the owner of the judgment recovered by him against William T. J. Plummer, and that there was due him thereon $1,708.22 with interest thereon from October 17, 1910, and that he was the owner of the note secured by the Neise trust deed, and there was due him thereon the face of said note with interest from February 1,1909, and $47.54 for interest accruing before that date; that by virtue of petitioner’s trust deed he was entitled to receive out of the proceeds of the sale of the whole of said real estate the amount due him thereon, and by virtue of his judgment was entitled to receive out of that part of the proceeds of the sale which represented the undivided one-half-interest of William T. J. Plummer the balance due him on his judgment; that if the proceeds of sale are distributed as ordered, his rights under his trust deed and judgment will be lost; that the estate of William T. J. Plummer is insolvent. Mary K. Plummer answered the petition. November 26th the master filed his report of distribution, from which it appears that $3,500 of the proceeds of the sale was deposited by the stipulation of the parties with the Chicago Title & Trust Company as a condition under which that company would issue a guaranty policy on the premises sold. February 24,1915, an order was entered whereby the court found that the order of distribution entered June 11, 1913, was improper and not in accordance with the decree of partition entered February 6, 1913, and ordered that the same be set aside; and further found that Barnard was the owner of the note secured by the Neise trust deed on which $2,865.14 was due, and was entitled to receive said sum before any other distribution was made; that he was also the owner of the judgment against William T. J. Plummer, which is a valid lien on one-half of the proceeds of the sale, being that portion representing the undivided one-half of said real estate owned by said William T. J. Plummer at his death, and was entitled to receive out of the net proceeds of the sale of such undivided one-half, after payment of the amount due on the Neise trust deed and the dower of Mary K. Plummer, $1,764.02, the amount due on said judgment, before any distribution of the proceeds of the sale of said one-half of said real estate was made, and an order was entered in accordance with the findings of the court. From this. order the present appeal is prosecuted by Mary K. Plummer individually and as administratrix of William T. J. Plummer.
    Ryan, Condon & Livingston, for appellant; Irvin I. Livingston, of counsel.
    John S. Hummer and James A. Russell, for appellee E. M. Barnard, Jr.

      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 Baker

delivered the opinion of the court.

The evidence taken before the master sustains the findings of the court, and the question presented is as to the jurisdiction and authority of the court to vacate the first order of distribution and enter the order from which this appeal is prosecuted, and the propriety of the order.

The presumption of law is, in the absence of proof to the contrary, that the Neise trust deed executed by Martha E. Trundle, and the Barnard judgment against William T. J. Plummer, were subsisting and valid liens—the trust deed on the whole, and the judgment on the undivided one-half, of the real estate. Graham v. Anderson, 42 Ill. 514; Norton v. Joy, 6 Ill. App. 406.

The statute requires the court, in a decree for partition, to “ascertain and declare the rights, titles and interest of all parties to such suit”; but the holder of a judgment against one of the parties in interest has no right, title or estate in the lands.

The claims and legal obligations against the estate sought to be partitioned should be borne by the shares set off to the several owners, or, in case of a sale of the land, should be paid from the fund; but provision to that effect may be made by the confirmatory decree and need not be contained in the decree for partition. Brown v. Sunderland, 251 Ill. 523.

“If (in a partition case), upon the coming in of the report of the commissioners, it is found necessary to sell the land, the court may ascertain the amount due on the mortgage debt, and order it paid out of the distributive share of the mortgagor in the proceeds of the sale. But that may be done even after the sale.” Spencer v. Wiley, 149 Ill. 56-59.

If in a partition case the land is sold subject to the lien of an existing mortgage, the decree of sale should state the amount due, in order that the purchaser may know what obligations are standing against the land he purchases. If sold free and clear of an existing mortgage, it is unnecessary for the court, prior to the decree of sale, to ascertain the amount of the incumbrance, because, in such case, whatever the amount may be it follows and attaches to the proceeds of the sale. Kilgour v. Crawford, 51 Ill. 249.

Where a bill for partition alleges the existence of a mortgage on the premises and the mortgagee fails to appear and produce proof at the hearing of the amount due on the mortgage, then if a sale is necessary the proper course is to decree a sale of the premises free and clear of the lien of the mortgage, and direct the proceeds to be brought into court, when the court may enter a rule that the money be paid within a certain time unless the mortgagee should, before that time, make proof of the mortgage and the amount due thereon. Kilgour v. Crawford, supra.

Where a bill is taken as confessed in a partition ease, if the court has reason to believe, or from any cause is apprehensive, that injustice is likely to result from ordering a distribution of the proceeds of the sale without proof, then it should be required. Sullivan v. Sullivan, 42 Ill. 315.

Barnard, by failing to answer, admitted only the truth of the allegations of the bill. The bill alleged the execution and recording of the Neise trust deed, and alleged that it was in full force, alleged that Barnard recovered a judgment against William T. J. Plummer, on which execution had been issued and returned unsatisfied, and alleged that the judgment was unsatisfied of record.

The facts stated in the bill clearly showed that injury was likely to result to the owner of the judgment and the owner of the note secured by the Neise trust deed if, without proof, the court ordered the proceeds of the sale distributed without making provision for the payment of the note or judgment. The proper practice, under the facts appearing in the record, would have been to enter a rule that the money be paid as provided in the decree of distribution unless the judgment creditor and the owner of the note secured by the Neise trust deed should appear by a certain time and make proof of the judgment and mortgage; and the court should have required proof as to the rights of Barnard before entering a decree of distribution. He had a right to be heard before a distribution of the proceeds of the sale was made. Ellis v. JDumond, 259 Ill. 483.

The motion to vacate the decree of distribution was made two days after the decree was entered and at the same term, and the hearing of the motion was continued.

We think the decree appealed from was properly made in furtherance of equity and justice, and it is affirmed.

Affirmed.