author: Mr. Presiding Justice Holdom

text:
    Lord C. H. E. Zeigler, Appellee, v. Illinois Trust & Savings Bank, Executor, Appellant.
    Gen. No. 14,545.
    1. Contracts—what not wagering. A contract providing for the rendition of professional services of a medical nature for life and the payment of compensation therefor after death of the party to whom such services are rendered, is not a wagering contract within the legal definition thereof.
    2. Contracts—scrutiny of, where fiduciary relation exists. The rule applicable to those between whom exist such relationships as lawyer and client, guardian and ward, trustee and cestui que trust, pastor and church member and doctor and patient, requires circumspection in searching into the hona fides of transactions sought to be enforced by one occupying such fiduciary relationship, against another, who was subjected to the influence arising therefrom.
    3. Contracts—when set aside for undue influence and inadequacy of consideration. If a contract is entered into between a medical adviser and his patient whose confidence he has, it will be held void if the consideration given by such adviser is inadequate and undue influence is shown.
    4. Contracts—when consideration not illegal. A valid contract made and sought to be enforced in this State calling for the rendition of medical services, is not affected by the fact that part of such services were rendered in another state contrary to law.

      5. Contracts—what against public policy. A contract calling for medical services to be rendered for life with compensation payable after the death of the patient, is void as against public policy.
    6. Depositions—statute authorising taking, construed. While there is no provision in the Administration Act lor the taking of depositions, still by fair and logical interpretation the act which authorizes the taking of depositions “in suits at law” and “in any suit in chancery,” is sufficiently broad and comprehensive to extend to the proving of a claim against a deceased person in the Probate Court.
    Contested claim in court of probate. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed with finding of fact.
    Opinion filed June 28, 1909.
    Statement by the Court. The appellee, Zeigler, filed a claim in the Probate Court against the estate, which was of Mrs. Harriet Gr. McVicker, deceased, for $110,000, consisting of two items, one for $100,000, claimed to be due on a written contract, and one for $10,000, claimed to be due on an oral contract. The Probate Court, the Hon. Charles S. Cutting presiding, held the written contract void for reasons which will be stated in the opinion, but allowed $10,000 on the oral contract. The appellee, Zeigler, appealed to the Circuit Court, where a jury trial was had, which resulted in a verdict and judgment for $100,000, from which judgment the appellant, the executor of the last will of Mrs. McVicker, has appealed to this court. The appellee is a physician, and was licensed to practice medicine in this state January 17, 1899. He practiced osteopathy. The trial occurred in September, 1907, and Mr. Black, one of his witnesses, testified that he first met appellee in Chicago fifteen years before the trial.
    The McVicker theater building is owned by a corporation, in which Mrs. McVicker, deceased, had a large interest, and April 24, 1899, Dr. Zeigler rented three rooms in the building from May 1,1899, till April 30, 1904. The lease was signed McVicker Theatre Co., Harriet Gr. McVicker, president. Mrs. McVicker had an office in the building adjoining appellee’s office. Appellee commenced treating Mrs. McVicker about October 10, 1899. He treated her at' his office, and afterwards, in the Lexington Hotel in Chicago, to which hotel she removed from her residence about October 1, 1900. He treated her at the Lexington Hotel until about the last of April, 1904, when the deceased went to Pasadena, California, talcing Dr. Zeigler with her. She died at Pasadena August 25, 1904. Edwin L. Brand, who saw Mrs. McVicker in Pasadena, testified that she was about 80 years old. William F. Black, who saw her in Chicago before she went to California, testified that she was 81 to 83 years of age. Both of these witnesses were called by the appellee. Mrs. Lindner, called by appellee, testified that the deceased told her that she had had a contract formulated by a Mr. Janes, an old friend of hers, and Mr. Janes had provided in the contract that appellee was to get sums ranging from $3,000 to $10,000, so that he would have to wait some ten years before he would get his money, and the doctor found some objectionable features in it and refused to sign it unless modified; that the contract provided that the doctor should furnish nurses, and Mr. Janes explained to the doctor that this meant that he would have to see to the supplying of competent nurses, and had no reference to his paying them. This contract was not produced and was probably destroyed. December 19, 1899, the deceased and appellee executed a written contract, which was thus signed by Mrs. McVicker: “Mrs. J. H. McVicker.” Miss Eleanor Barnet, who says she was a sort of private secretary for Mrs. McVicker in 1900 and until she went to California in April, 1904, testified that a second contract was prepared because of the signature; that “the doctor had been advised that the contract might not be good signed Mrs. J. H. McVicker.”
    The second contract was executed July 24,1901, and the contract part of it, commencing with the words, “That the party of the first part,” and following a lengthy preamble, is substantially the same, except the signature, as the contract of December 19, 1899. It is as follows:
    “Chicago, Illinois, July 24th, 1901.
    This agreement or contract by and between Mrs. Harriet G. McVicker of Chicago, 111., of the first part, and L. C. H. E. Zeigler, M. D., of Chicago, 111., of the second part, Witnesseth
    That the first party, Mrs. Harriet G. McVicker, first entered into this agreement or contract with Doctor Zeigler, party of the second part, on the Nineteenth day of December, Eighteen Hundred and Ninety-nine. Dec. 19th, 1899.
    The original contract will be found hereto attached. A second contract was thought to be necessary because of the signature of the first and original contract being signed Mrs. J. H. McVicker instead of Mrs. Harriet G. McVicker.
    That the party of the second part having been advised to have the signature changed from Mrs. J. H. McVicker to Mrs. Harriet G. McVicker, presented the first and original instrument to the party of the first part, Mrs. Harriet G. McVicker, for the purpose of getting her to consent in its being changed. On being apprised of the possibility of some legal technicality, Mrs. Harriet G. McVicker, party of the first part, immediately acquiesced and caused this the second contract to be drawn which contains the material and relevant clauses of the first and original contract drawn December 19th, 1899.
    That the party of the first part, Mrs. Harriet G. McVicker, being aware that some unscrupulous persons have conspired to ruin the doctor’s good reputation and business willingly and unhesitatingly causes the change in signature.
    That the party of the first part, Mrs. Harriet G. McVicker, was necessitated to have Hon. William E. Hughes to call at her home and investigate the legal aspect of the terrible and cruel conspiracy against Dr. Zeigler led by Mr. L. D. Condee, Miss Jennie Boydston, Mrs. William Cox, Mr. George Graves, Mrs. Mack, with an eye singled to have Mrs. Harriet Gr. Mc-Vicker, party of the first part, to discontinue the services of the party of the second part, L. O. H. E. Zeigler, M. D.
    That the party of the first part, Mrs. Harriet Gr. McVicker, had letters presented to her purporting to be from certain individuals, which, when thoroughly scrutinized and their contents carefully questioned of Mr. L. D. Condee by Hon. William E. Hughes it was deduced by Mr. Condee’s own confession that they had been forged and not written by the persons whom he at first declared had written them and delivered same in person.
    To the party of the first part, Mrs. Harriet Gr. Mc-Vicker, to have discontinued the professional services of the party of the second part, L. C. H. E. Zeigler, M. D., would have been equivalent to the canceling of the original contract existing between first and second parties which is hereto attached, and for which result each of these persons did wrongfully cruelly conspire. Knowing this by confession from Mr. Condee, also by letter received from him, the party of the first part, Mrs. Harriet Gr. McVicker, for truth, justice and right has made the second contract in order to avoid the underhandedness of these unscrupulous persons.
    Persons that the party of the first part have conversed with in reference to this matter, are: Mr. William E. Hughes, Rev. W. F. Black, Mr. N. E. Pearse, Mrs. N. E. Pearse, Mrs. J. I. Case, Mr. Emil Lindner, Mr. James Mclnerny.
    CONTRACT.
    That the party of the first part, Mrs. Harriet Gr. Mc-Vicker, does enter into an agreement and contract for the professional services to be renderéd by the party of the second part, L. C. H. E. Zeigler, M. D., at any time or place, during any spell of indisposition which I may be subjected to during the remainder of my natural life-time.
    That in the event of sickness such methods are to be employed or adopted as seem best and most expedient. All medicines or other paraphernalia necessary to the discharge of duties in cases of indisposition are to be provided by Doctor Zeigler.
    That when the critical moment comes when it is thought that I may pass out, Doctor Zeigler may call the physician or physicians as his judgment may dictate.
    That the sum which I voluntarily contract to pay for the services thus rendered is to be $100,000.00 (One Hundred Thousand Dollars), payable immediately or as soon as possible by my estate which I leave in trust with the Illinois Trust and Savings Bank.
    In witness whereof, the parties hereto have set their hands and seals, July 24th, 1901.
    Harriet G-. McVicker.
    (Burned hole.)
    United States Institute of Osteopathy, Chicago, 111.
    _Corporate Seal._
    L. C. H. Zeigler. (This signature written diagonally across corporate seal.)
    L. C. II. Zeigler, M. D.
    Emil Lindner.
    (Endorsed on back thereof:) McVicker contract. John Janes,
    L. C. II. E. Zeigler.
    Rev. W. F. Black,
    Mr. N. E. Pierce,
    Mrs. N. E. Pierce,
    Emil Lindner,
    Wm. E. Hughes,
    Mrs. J. I. Case,
    Mr. James Mclnerny.”
    Other evidence will be referred to in the opinion when deemed appropriate.
    James C. Hutchins and Max Baird, for appellant; L. D. Condee and L. R. Atkins, of counsel.
    Bulkley, Gray & More, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

It is contended by counsel for appellant that the contract in question is void for the reason that it is a wagering contract, and also because it tends to induce crime and is consequently void as being against public policy.

In 1 Joyce on Insurance, section 148, a wager policy in respect to property is thus defined: “Wager policies are those in which the insured has no interest whatever in the subject matter insured, but only an interest in its loss or destruction.”

In Guardian M. L. Ins. Co. v. Hogan, 80 Ill. 35, a son took out a policy on the life of his father, and paid the premiums. The court held that he had no insurable interest in his father’s life, and say: “As said by the court in the case of Ruse v. The Mutual Benefit Life Insurance Company, 23 N. Y. 516, ‘A policy obtained by a party who has no interest in the subject matter is a mere wager policy.’ But policies without interest in lives are more pernicious and dangerous than any other class of wager policies, because temptations to tamper with life are more mischievous than incitements to mere pecuniary fraud.” In Benefit Ass’n v. Blue, 120 Ill. 121, this language is used: “It may be regarded as a plain proposition of law, that a wagering policy is void, and we think it also well settled that a policy taken out on the life of a third party by a beneficiary, in the continuance of whose life the beneficiary has no pecuniary interest, may be regarded as a wagering policy, and as such would be void. Had this policy been taken out by Blue on the life of Bailey, without his knowledge or consent, and had the premiums been paid by him, it would manifestly fall within what is known as a wagering policy, and would be void.”

In Schreiner v. High Court of Foresters, 35 Ill. App. 576, this court, Mr. Justice Moran delivering the opinion, said: “Public policy is a law with reference to which all contracts must be made and interpreted, and public policy forbids that contracts shall receive such an interpretation as will encourage crime or make their performance a reward thereof. Wager policies were held void at common law because of the obvious temptation presented by such policies to the commission of crime.”

Ruse v. The Mutual Benefit Society, 23 N. Y. 516, cited with approval in Guardian M. L. Ins. Co. v. Hogan, supra, is a well considered and instructive case, and the court held in that case that the statute 14 George 3rd, chapter 48, prohibiting insurances on life, where the person insuring had no interest in the life, is merely declaratory of the common law.

In Warnock v. Davis, 104 U. S. 775, the court, after stating interests which would support a life policy, say: “But in all cases there must be a reasonable ground, founded upon the relations of the parties to each other, either pecuniary or of blood or affinity, to expect some benefit or advantage from the continuance of the life of the assured. Otherwise the contract is a mere wager, by which the party taking the policy is directly interested in the early death of the assured. Such policies have a tendency to create a desire for the event. They are, therefore, independently of any statute on the subject, condemned, as being against public policy. ’ ’

In Franklin L. Ins. Co. v. Hazzard, 41 Ind. 116, the suit was by the assignee of a life policy, he having-no insurable interest in the life. The court held there could be no recovery, saying, among other things: “All the objections that exist against the issuing of a policy to one upon the life of another in whose life the former has no insurable interest, seem to us to exist against his holding- such policy by mere purchase and assignment from another. In either case, the holder of such policy is interested in the death, rather than the life, of the party assured. The law ought to be, and we think it clearly is, opposed to such speculations in human life.”

But we do not think the contract here is so akin to the cases of insurance referred to, as to come within the designation of a wagering contract. It will be observed that in the insurance cases there is an entire lack of contractual relationship or- financial interest between the insured and the beneficiary, while in the case at bar the contractual relationship existed, and there was a sufficient consideration moving between the. parties to support the contract as such. Such are the surface appearances. The enforcement of the contract depends, aside from the conditions referred to, on whether it is void as being against public policy.

It is plain from the evidence that, at the time of making the contract in question, Mrs. McVicker was 79 years of age—an old woman without children and a widow—although she was of sound mind and of testamentary capacity. It is equally clear that she was suffering from physical infirmities consequent upon her advanced age; that she had been under medical treatment for some time preceding the date of the contract, and stood in need of continuous medical treatment thereafter, and, as the sequel shows, received such treatment from Zeigler until the day of her death. While she was a woman of undoubted strength of character and firmness of purpose, it cannot be gainsaid that Zeigler had won her confidence both as a man and a physician. She believed implicitly in the honesty of his purposes and his ability as a medical man to do more for her health, in ameliorating, if not curing, her physical infirmities, than any other doctor' she knew. In executing the second contract, she defended Zeigler from aspersions said to have been cast upon his character by several of his detractors. Such was not a necessary part of the contract, but was interpolated into it by Mrs. McVicker, who prepared it without the knowledge of Zeigler; yet he confirmed it by his execution of the contract. It appears that Mrs. McVicker’s displeasure was readily incited when the character of Zeigler was in any manner assailed. The evidence shows she was addicted to the nse of extravagant language in praising Zeigler. The proof also demonstrates that after Mrs. McVieker fell under the influence of Zeigler she relaxed her hold upon the friendship of those persons with whom she had theretofore been acquainted, and surrounded herself, as confidants, with those persons who were admirers of and friendly to Zeigler. Such was her confidence in Zeigler that, fearing her heirs might assail the binding force of her contract with him after her death, she voluntarily, as Zeigler claims, proffered him, in certificates of deposit, the full amount called for in the contract—one hundred thousand dollars—by which act she evidenced her willingness to trust to his honor to attend her faithfully and prolong her mortal life as long as his skill and judgment and the strength of her constitution would permit. Only his alleged refusal to vary the terms of the contract by accepting the payment proffered, prevented that part of the contract from then being concluded. Whatever conclusion may be drawn from Zeigler’s so refusing, it occurs to us that it is strong proof of the absolute control which he exercised over her and the unbounded confidence which she had in him, and her anxiety to protect him, even to the absolute surrender of a considerable part of her fortune. A careful weighing of the evidence furnishes no proof justifying a conclusion that Zeigler abused Mrs. McVieker’s trust in him or betrayed her confidence at any time, or did not do all he was able to prolong her life, and casts no doubt upon his rectitude of purpose and action in his treatment of her. But, whatever may have been his course of conduct toward her, Zeigler’s rights must be ad-measured in harmony with the obligations and duties which the law exacts of persons, bearing the relationship of doctor and patient, in their dealings with each other, which relationship existed between Zeigler and Mrs. McVieker when the contract between thbm was made.

A fiduciary and confidential relationship between Zeigler and Mrs McVicker is clearly established. The rule applicable to those between whom exist such relationships as lawyer and client, guardian and ward, trustee and cestui que trust, pastor and church member and doctor and patient, requires circumspection in searching into the bona fides of transactions sought to be enforced by one occupying such fiduciary relationship, against another, who was subjected to the influence arising therefrom. The rule is well stated in Dowie v. Driscoll, 203 Ill. 480, where the court say: “The doctrine repeatedly announced by this court is, that courts of equity ‘will scrutinize with the most jealous vigilance’ transactions between parties occupying fiduciary relations toward each other * * * that the burden of proof is on the beneficiary, in such cases, to establish the fairness of the transaction, and that it did not proceed from undue influence. * * * In Jones v. Lloyd, 117 Ill. 597, it was held the burden of proof is upon the person obtaining the advantage, in cases of fiduciary relations, ‘to vindicate the bargain or gift from any shadow of suspicion, and to show that it was perfectly fair and reasonable in every respect, and courts will scrutinize the transaction with great severity.’ ” Thomas v. Whitney, 186 Ill. 225.

It was held in Roby v. Colehour, 135 Ill. 300, which was a case between attorney and client, that the presumption was against the validity of a transaction between attorney and client, where the benefit inured to the attorney, and that the burden was cast upon such attorney to affirmatively show, by a preponderance of the evidence, perfect good faith, an absence of undue influence, a fair price, knowledge, intention and freedom of action on the part of the client, coupled with independent advice and full information. In treating upon this subject, Story in Yol. 1 of his work on Equity Jurisprudence, par. 314, says: “Similar considerations apply to the case of a medical adviser and his patient.” This rule is recognized in Thomas v. Whitney, supra, which was a case involving a contract between doctor and patient.

Applying these tests to the case in hand, we find a contract to furnish medical services, by a young osteopath practitioner' (bnt recently graduated, whose usual and customary charge was two dollars per treatment), to an octogenarian woman in feeble health, as long as she might live, at the extravagant remuneration of one hundred thousand dollars. The contract was not drawn by a lawyer; the first contract being drafted by a Mr. Janes, an insurance agent, the supplemental contract being the same with the addition of the preamble drafted by Mrs. McVicker. Mrs. Mc-Vicker had no independent legal advice, for, while Hughes was a lawyer, he was Zeigler *s lawyer, who prosecuted Zeigler’s claim in the Probate Court. Janes was a fire insurance agent, and while he may have been a man of scholarly attainments, still he was not learned in the law. The evidence, however, concerning Janes’s part in drawing up the contract, is, to say the least, unsatisfactory. Janes being dead, Miss Barnet testified as to what he had said to her when she went to him, at the instance of Mrs. Mc-Vicker. It borders clearly on hearsay testimony, and was therefore inadmissible. In any view, it is not convincing on the vital point of independent advice, which was intended to be established by it. How can it be said that the consideration moving from Zeigler to Mrs. McVicker was adequate, when it is too clear for argument that a woman of the advanced age and infirmity of Mrs. McVicker could have no reasonable expectation of many years of life? The observations of the Lord Chancellor in Dent v. Bennett, 4 M. & C., 269, are equally pertinent here: “As a contract, therefore, fo'r value, the transaction is more extravagantly absurd than any that has come under my notice, and if the case rested upon that, would only require to be stated. * * * .” This case is one which comes within the ruling of Lord Thurlow, as quoted in Coffee v. Ruffin, 44 Tenn. 487, in illustration of gross inadequacy of consideration. He said: “‘It is impossible to state it to a man of common sense, without producing an exclamation of the inadequacy of it, * * * and the court will infer, from that fact alone, there must have been such imposition or oppression in the transaction as to amount to a case of fraud, from which it will not suffer any benefit or advantage to be derived.’ ” Hardy v. Dyas, 203 Ill. 211.

An instructive statement of the rule as to inadequacy of consideration, with citation of supporting authority, will be found in 6 Am. & Eng. Ency. of Law, 2nd ed., p. 699, note 1.

The evidence in this record is not of sufficient force to rebut the presumptions of inadequacy of consideration and undue influence, to which the law attributes contracts of the nature of that between Zeigler, the doctor, and Mrs. McVicker, his aged patient.

Zeigler was not a competent witness to testify in his own behalf, except as to his own identity and that, at the time of the execution of the contracts in suit, he was licensed to practice his calling, as shown by the state document certifying to that fact, which he produced. All of his testimony on other matters was properly excluded.

The only witness called to sustain the reasonable value of the professional services rendered by Zeigler to Mrs. McVicker, in an effort, we assume, to sustain the adequacy of the consideration in the contract, was Dr. Stewart Johnston, a medical practitioner in Chicago for twenty-one years. He had no personal knowledge in relation to the actual service rendered, and gave his testimony in response to facts stated hypothetically. He put his estimate at $90,000. But it is self evident from his testimony that he had neither knowledge nor actual experience which justified him in placing the value of Zeigler’s services at any such extravagant sum. Standing alone as it does, we think it insufficient to support so large a claim, and, furthermore, we are satisfied from the way in which the case was presented to the jury, that their verdict was founded on the contract price and not on a quantum meruit.

Neither Zeigler nor Mrs. McVicker was a citizen of the state of California. The contract in dispute was made between the parties to it in Illinois. The controversy in relation to it is in the forum of the state where it was made and of which the parties were residents and citizens. Zeigler was not practicing medicine in California; he was in attendance upon Mrs. McVicker, his Illinois patient, while she was temporarily sojourning in the state of California for her health. The contract is governed by the laws of this state, and even if it were conceded that Zeigler in his treatment of Mrs. McVicker, did so in violation of a statute of California, we do not regard such violation as any of the concern of our courts, or as in any way interfering with the right of recovery, providing the contract is otherwise enforceable according to the laws of this forum.

The evidence in the record fails, in our opinion, to sustain the contract as being fairly obtained, or to prove that it was entered into upon an adequate consideration, or upon full information and with independent advice.

It is, however, contended, with much plausability we admit, that Mrs. McVicker, being under no disability of law, was free to make any contract which suited her, and to be as liberal in providing for compensation as she saw fit; that to hold otherwise would violate the constitutional right of free contract; that the jury who heard the evidence must be assumed to have found in it all the necessary elements to constitute a contract good in law, meeting all the legal tests advanced in argument by appellant; that the trial judge yielded his assent to the sufficiency of the proof by entering judgment upon the verdict; and that we should not, therefore, now interfere with conclusions so arrived at by the trial court. But be this contention well founded or not, there still remains for our decision the question of whether a contract of this character is not contrary to public policy.

We think there is force in what the learned judge of the Probate Court said in deciding this case when it was before him for primary determination, viz: “The relation of physician and patient is necessarily the most intimate and confidential character. This relation presupposes an enfeebled condition of one party and a control of that party by the other. As the end of life approaches the desire for health and strength does not diminish, and the patient will be strongly tempted to promise anything if even the hope of recovery seems possible through the aid of the medical adviser. Contracts so made must be closely scrutinized, especially where, as in this case, the reward of the physician would be hastened and his labor decreased by the speedy death of his patient. A contract which puts the absolute control of a patient in the hands of one who will greatly profit by her speedy death, is, no matter how honest and reliable the physician may be, of doubtful expediency, and should be condemned as against public policy.”

While we have examined many authorities which hold to this rule, and have not found any case squarely in point, holding a contract of the nature of the one before us void as against public policy, where a good and valuable consideration appears from the contract to have moved between the parties, yet we think all the circumstances of this case bring this contract so clearly within the principle of this rule as to make it controlling in its condemnation.

At the time of the making of this contract, Mrs. MeVicker was an octogenarian and an invalid for many years. It is assumed, in the hypothetical question put to the medical expert witness of appellee, that Mrs. McVicker had for many years been treated by physicians for bladder trouble of thirty or forty years’standing, inflammation of the knee joints, hemorrhoids and mal-assimilation of her food, and that her digestion was so badly affected that the food she consumed needed special preparation; that subsequent to making the contract Zeigler performed an operation upon her and removed a polypus from her uterus, and that she suffered from other physical ills. It is therefore patent that when the contract was made her health was so enfeebled as to raise the presumption of law that she was under the control of Zeigler when she executed the contract. The fact that Zeigler did not practice any artifices or exert any undue influence to induce Mrs. McVicker -to enter into the contract, and did nothing when treating her to shorten her life, does not lend ány palliation to his position before the law in attempting to enforce the contract against her estate or relieve the contract from the imputation which the law casts upon it of being contrary to public policy and therefore void. The policy of the law is not to sanction the putting of a party in a position where he is subject to the temptation to do wrong in serving his own interests, which, as in the case at bar, is to hasten death rather than to prolong life. It cannot be gainsaid but that the early demise of Mrs. McVicker was to the financial interest of Zeigler, for on the happening of that event, if the contract should be upheld, he would be entitled to receive from her estate the sum of one hundred thousand dollars, the compensation stipulated in the contract.

We think the principle plainly stated by the English vice chancellor in Dent v. Bennett, supra, which together with the language used in characterizing the illegality of the contract, are equally applicable here, and that the law and the logic of that case are controlling. While it is apparent that the cause went off finally in the chancery court upon the theory that it was not a cause cognizable in equity, as all defenses insisted upon were available in bar of an action at law, nevertheless the vice chancellor did decide that the defense that the contract was void as against public policy could be successfully urged at law because the contract was void for that reason, and that the whole question, being upon the construction of the contract, was one of law for the court. Such being the condition, we are unable to escape its force as applicable to the case in hand. It is peculiarly applicable in its similarity to the Zeigler-McYicker contract. There, as here, the contract was between doctor and an octogenarian patient; the compensation was extravagantly large; no suspicion of mal-treatment of the patient by the doctor existed; the patient, as here, lived several years after the making of the contract, and died after attaining to a ripe old age; and the compensation was also payable upon the death of the patient. In commenting upon the illegality of the Dent-Bennett contract, the vice chancellor said: “In my opinion, however, as the case now stands, nothing can be more useless than to allow the action to proceed, for it is plain on the face of the agreement itself, that it is not worth one farthing in point of law.” After stating the terms of the agreement, the vice chancellor proceeded to remark: “It is plain that the existence of such an agreement is a direct premium to the medical adviser to accelerate that death upon the happening of which he is to have 25,000 pounds, and it is in vain to say that in fact it did happen that the party who was to give the 25,000 pounds did live for four or five years after the agreement. You must look at the agreement as it stood at the time when it was made; and it must be admitted that the human mind is so constituted, as that this agreement might be a temptation to some persons to do the very thing which it is obvious, it was the duty of the party who took the agreement not to do; and my deliberate opinion is, that it is totally void in point of law for that reason.” Cole v. Grower, 6 East. 110, is to a like effect. In this case the guardians of the poor compromised with Glower, the putative father of an illegitimate child, for his liability for support for 20 pounds, while the statute required the guardians to take security for the bastard’s support. The note given for the money was held void as against public policy, and Lord Ellenborough, in giving judgment for the maker of the note, indulged in these observations: “It is a shocking consideration that by means of such security as this the parish officers, who have a public duty imposed upon them, to take care that the father shall make a proper provision for the maintenance of the child, acquire an interest that the child should live as short a time as possible.” And the associate of Lord Ellenborough, in concurring in the latter’s judgment, said: “They cannot, therefore, convert a power, given them for the mere purpose of indemnity, into a matter of bargain and speculation upon the life and death of the child, thereby making it to the interest of the parish to get rid of the child as soon as possible. * * * Parish officers ought to pursue the statute and not lay a wager in effect upon the continuance of the child’s life. The ban of the law against contracts which hold out a temptation to the party beneficially interested to shorten the life of another, has received an interpretation as applied to life insurance policies which is distinct and aside from the wagering features of such policies. This is obvious from the remarks of the court in Ruse v. M. B. L. I. Co., 23 N. Y. 516, where it is said: “Such policies if valid not only afford facilities for a demoralizing system of gaming, but furnish strong temptations to the party interested to bring about, if possible, the event insured against. * * * But policies without interest upon lives are more pernicious and dangerous than any other class of wager policies, because temptations to tamper with life are more mischievous than incitements to mere pecuniary frauds.” The last paragraph recited was quoted in the opinion of our own Supreme Court in Guardian v. Hogan, supra. Chicago G. F. L. S. v. Dyon, 79 Ill. App. 100.

The temptation of such a beneficiary to shorten life is well illustrated in N. Y. M. L. I. Co. v. Armstrong, 117 U. S. 591, Burt v. U. C. L. I. Co., 187 U. S. 362, and Bitter v. M. L. I. Co., 169 ibid. 139, in which the lives of all the persons insured were ended by foul means. Contracts which have a tendency to incite the commission of a crime of any character are void as against public policy. Such in effect is the doctrine of Grillett v. Logan Co., 67 Ill. 256, which involved the procuring of evidence of illegal voting, and the court say: “But the contracts themselves are pernicious in their nature. * * * A strong temptation was held out to them to make use of improper meahs to procure the needful testimony to secure the desired result of the suit. The nature of the agreement was such as to encourage attempts to suborn witnesses, to tamper with juries, and to make use of other ‘base appliances’ in order to secure the necessary results, which were to bring to these agents their stipulated compensation. * * * In Marshall v. Baltimore & Ohio R. R. Co., 16 How. 314, it was held that a contract for a contingent compensation for obtaining legislation, was void by the policy of the law. With much greater reason, we think, should the contracts under consideration be held vicious. We cannot sanction them. On account of their corrupting tendency, we must hold them to be void, as inconsistent with public policy.” Goodrich v. Tenney, 144 Ill. 422. We are therefore constrained to hold that the contracts sued upon are void as being contrary to sound public policy, and that consequently no recovery can be predicated upon such contracts.

The case was submitted to the jury, under instructions of the court, given at the instance of ajipellee, on the right of appellee to recover under the contract of December 19, 1899, and July 24, 1901, and not on a quantum meruit for services rendered. These contracts being void for the reasons already given, the trial judge erred in not giving the twelfth instruction asked by appellant, in these words: “The jury are instructed that the claimant is not entitled to recover upon either of the written contracts offered in evidence on his behalf.” Under such condition the rights of appellee are restricted to those enforceable under the contracts.

The only material point remaining to be disposed of relates to the admissibility of the depositions read in evidence by appellee. We think they were admissible. They were taken while the cause was pending in the Probate Court, and while it is true there is no provision in the Administration Act for the taking of depositions, still we think that, by fair and logical interpretation, the act which authorizes the taking of depositions “in suits at law” and “in any suit in chancery” is sufficiently broad and comprehensive to extend to the proving of a claim against the estate of a deceased person in the Probate Court, whose jurisdiction in the trial of such claims partakes of the quality of both “law” and “chancery” wherever the principles of either can be invoked for the attainment of justice. Moreover, appellant was in attendance by counsel and had an opportunity to cross-examine, and is consequently precluded from challenging the admission of the evidence contained in these depositions. The trial in the Circuit Court was de novo, and in that court the depositions were admissible as evidence, beyond cavil.

The judgment of the Circuit Court is wrong, and it is therefore reversed with a finding of fact.

Reversed with finding of fact.


source: Caselaw Access Project

author: Mr. Presiding Justice

license: Public Domain

text:
    Martha E. Hunt, Appellant, v. Hascall E. Hunt, Appellee.
    Gen. No. 14,560.
    Separate maintenance—when jurisdiction of proceeding exists. Where a husband deserts his wife while they are residents of Illinois and takes up his residence in another state, the wife may, if she continues to reside in this state, maintain a bill for separate maintenance in any county of the state.
    Separate maintenance. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed and remanded.
    Opinion filed June 28, 1909.
    F. A. Bingham, for appellant.
    F. M. Lowes, for appellee; Thomas Marshall, of counsel.
   Mr. Presiding Justice

Holdom delivered the opinion of the court.

The parties to this appeal are husband and wife. Appellant filed her bill against appellee for separate maintenance, claiming that he had deserted her without her fault, while they both resided in Chicago. The bill was, on hearing of appellant’s proofs, appellee refraining from making any defense to his wife’s bill upon the merits, dismissed for want of equity upon the following finding in the decree, viz; “That on the 3rd day of January, 1906, the date of the filing of the bill of complaint herein, the defendant, Hascall E. Hunt, was not a resident of the State of Illinois, but was on said date and still is a resident of the state of Idaho, and that the court is without jurisdiction.”

The bill avers that the parties were married on the 26th day of October, 1884, in Noble county in the state of Indiana; that one child was born as the fruit of the marriage; that subsequent to the marriage the parties moved to and lived in Chicago, where the husband engaged in the business of an undertaker; that while the parties lived in Chicago as husband and wife, and on December 6, 1897, the husband deserted his wife, since which time he has failed to support her and has lived and been in business in Alaska and the state of Idaho, of which state he was at the time of the filing of the bill and the hearing of the cause, a resident.

The bill contains an averment that appellant, for more than one year next preceding the filing of the bill, had been and still was a resident of Chicago, in the state of Illinois.

On January 8, 1906, appellee, after answering his wife’s bill, filed a cross-bill for divorce, charging as a ground for such divorce, that appellant maliciously attempted the life of appellee by means of a loaded revolver, “with intent to take his life.”

Appellant testified that she had resided in Chicago since 1894, and that for three years she and her husband lived in Chicago in the marital relationship, which they bore to each other until her husband deserted her in December, 1897.

The only question here presented for our decision is, did the court have jurisdiction to hear and determine the case stated in appellant’s bill for separate maintenance. The solution of this question depends upon the fact as to whether appellant at the time of filing her bill had resided in the state of Illinois more than one year.

The contentions of appellee are without force in the light of the recent case of MacKenzie v. MacKenzie, 238 Ill. 616. The same questions before the court in that case are here presented, and the decision there is conclusive against appellee here. The MacKenzie case is on all fours with the case at bar. As here, the bill was for separate maintenance with ne exeat accompaniment. The cause of action arose in Illinois, and the defendant was a non-resident of this state, and the complainant had the statutory requisite of residence in this state for more than one year prior to the filing of her bill. It was expressly held in the MacKenzie ease that where a husband deserts his wife while they are residents of Illinois, and takes up his residence in another state, the wife may, if she continues to reside in this state, maintain a bill for separate maintenance in any county of the state. Appellee was served with process in this county, and it follows that the court acquired jurisdiction of his person and of the cause, and had authority to grant the relief prayed in the bill, upon its material averments being sustained by proof.

For the error of the Circuit Court in holding that it was without jurisdiction and in dismissing the bill, its decree is reversed and the cause remanded for further proceedings conformable to this opinion.

Reversed and remanded.


text:
    B. L. Honore, Appellant, v. George W. Homan, Appellee.
    Gen. No. 14,564.
    Bbokebs and factobs—when commission not earned. Unless a customer ready, willing and able to comply with the terms offered by the owner is obtained by the broker, no commissions are earned.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed June 28, 1909.
    Leslie H. Whipp, for appellant.
    Fyffe & Adcock, for appellees; Edmund D. Adcock and Cornelius Lynde, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This judgment must be affirmed for the reason that the evidence of appellant, aside from every other question of law or fact involved in the case, does not sustain his contention that he performed his part of the contract, which required him to furnish a lessee for the Michigan avenue property, able, ready and willing to lease the same for a term of ninety-nine or 999 years, at an annual rental of $3,600, and to pay in cash for the improvements $10,000. By this contract appellee was absolved from the payment of commis- ' sions to appellant for procuring a lessee, it being understood that to such lessee when procured appellant should look for his compensation for his services in negotiating the transaction. Appellant’s contention is that he procured a lessee within the terms of the contract, who also agreed to pay him the usual commissions of real estate brokers at Chicago for negotiating like transactions, and that on account of appellee’s refusal to accept the lessee and make the lease so negotiated by appellant, he lost his commission, and consequently appellee is liable to make good the damage suffered by him for such breach of contract.

Appellant offered the following letter as evidence that he secured a lessee for appellee’s Michigan avenue property:

“Chicago, 111., Sept. 6, 1906.
Mr. B. L. Honoré,
1st Natl. Bank Bldg., City.
Dear Sir: I herewith accept your proposition to sell the improvements on the property 322-23 Mich. Blvd. for $10,000, and to lease the land for 999 years at' a rental of $3,000 per yr., payable quarterly in advance, the rent to begin upon the execution and delivery of the lease. In addition to paying the $10,000 for the improvements and signing the usual form for long term lease, I will pay the cost of the bringing down of the abstract and of having the abstract examined, and will take care of the matter of your brokerage.
Very truly yours,
. A. C. Honoré.”

The terms mentioned in the correspondence of appellee, which it is admitted constitute the contract for the breach of which damages are sought to be recovered in this case, provide for an annual rental of $3,600, as well as a cash payment for improvements of $10,000. In the letter of the proposed lessee, A. C. Honoré, quoted above from appellant’s brief, the rental 'mentioned is $3,600, and throughout the argument counsel have proceeded upon the assumption that this was in fact the rental. In appellee’s supplemental abstract the amount of the rental is, in that letter, set down as being $3,000. To ascertain the fact, we have had recourse to the record, and find that there the rental offered is $3,000. This being so, it is patent there can be no recovery. While such an offer in writing-signed by the party to be charged, may be unnecessary (although we think in the circumstances of this case it was necessary), still there is no evidence in this record contrary to the letter, nor any oral proof that the rental agreed to be paid by Honoré was $3,600. A. C. Honoré, who testified for appellant, swore that appellant was his uncle, and further testified that appellant told him “he could get that property at 3 per cent, $3,000, forty feet on Michigan avenue, Nos. 222 and 223, and I told him if I could get that property at 3 per cent on a ninety-nine year lease and pay $10,000 for a building- and take that lease and pay the expenses and bring down the abstract and the expense of having the abstract examined and the commissions in the deal, that I would do it, and I after-wards wrote a letter to him to that effect.” An offer to pay an annual rental of $3,000 it is clear does not satisfy the requirement of $3,600 annual rental. So appellant fails, at the threshold of his case, to sustain his contention by his proofs, and cannot therefore prevail.

While, in the condition of this record, we do not deem it necessary to our decision to review any of the other questions argued, yet we have carefully read the record and the briefs of all the counsel, and find no reason to disturb the Judgment of the court below, even though the fatal variance upon which we rest our conclusion was not present in the case.

The judgment of the Circuit Court will therefore be affirmed.

Affirmed.


text:
    John C. V. Kraft, Appellee, v. Ralph Jefferson, Appellant.
    Gen. No. 14,568.
    1. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    2. Municipal Court—propriety of oral instructions. The judges of the Municipal Court may in their discretion instruct jurors either orally or in writing; the right so to do covers all classes of cases cognizable in that court where trial by jury is had.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed June 28, 1909.
    Henry R. Rathbone and Horace W. Nichols, Jr., for appellant.
    Eastman, Eastman & White, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an action of the first class under section 28 of the Municipal Court Act, brought in the Municipal Court by appellee against appellant, to recover, with interest, the balance of an account claimed to be due from appellant to appellee. Appellee filed a declaration consisting of the common counts and a statement of account, showing a balance due of $1,857.52. To this declaration appellant interposed. a plea of the general issue, and upon these pleadings the cause proceeded to trial before the court with a jury, resulting in a verdict for $1,950.39, upon which the court, after overruling motions for a new trial and in arrest of judgment, entered judgment, from which this appeal is prosecuted.

The amount of the judgment is not in dispute. The trial judge instructed the jury orally, and in so doing said, among other things: “In this case the plaintiff claims that the defendant owes him something like $1,900 for printing done. On the other hand, the defendant does not dispute the amount of the account.” After the court had concluded his instructions to the jury, counsel for appellant, in requesting the court, to give additional instructions tendered in writing, said: “I have no objections at all to the instructions given.” *' * * An examination of appellant’s evidence brings our minds in accord with that of the trial judge, and we think the assent of appellant is clearly inferable from the remark of his counsel, last quoted, and that by such action of acquiescence he is now precluded from disputing the amount of the judgment.

Appellant’s defense rested in a repudiation of any liability to appellee because, as he contended, the contract and the service rendered thereunder was made with and performed for Winchester & Hall, a corporation, or for himself and one J. B. Taylor, as partners. The facts attendant upon the relations of the parties are, in substance, that appellant was engaged in Chicago, Buffalo and elsewhere, in furnishing theater programs to various theaters in those cities, the advertising on which he controlled, which advertising was the source of his profit. Appellee was a printer in Buffalo. Such was the business of the parties in July, 1902, and so continued during all the time of their dealings involved in this controversy. Some of appellant’s business was, during this time, conducted in the names of Winchester & Hall, a corporation, and J. B. Taylor & Co. There is little reason to doubt that appellant was practically Winchester & Hall, and used the corporation name for his own convenience, and that all the business transacted in the corporation name was in fact the business of appellant, and that J. B. Taylor & Co. was J. B. Taylor, the Buffalo representative of appellant. The dealings of the parties were established and continued in virtue of the following letter written by appellee, in Buffalo, to appellant at the latter’s dictation, viz:’

“July 2nd, 1902.
Balph Jefferson, Esq.,
Genessee Hotel, Buffalo, New York.
Dear Sir: I wish to make you the following proposition on printing any or all of the theatre, programmes which you control in the city of Buffalo.
It is understood that you furnish the paper for the covers and also for the insides of such programmes. The work to be done will be charged according to the following scale of figures:
First composition not to exceed $1.25 per page.
Setting of the cast of characters, synopsis and other matter furnished by theater manager and which changes at each attraction, to be charged at $2.00 for one change per week, but a second change in the same week $1.50.
Time work in changing advertisements 50 cents per hour.
Press work to be charged as follows:
Four page form 75 cents per M.; Eight page form $1.00 per M.; Twelve page form $1.00 per M.; Sixteen page form $1.50 per M.; Twenty-four page form $1.50 per M.
Programmes to be folded, inserted in covers, wire stitched and trimmed for 50 cents per M. programme.
Should gallery slips be used, I will furnish same at 50 cents per M., including paper.
I agree to do this work in satisfactory manner "and deliver programmes to the various theatres in ample time and in manner satisfactory to the various theatre managers with whom you have.
Yours very truly.”

From that time forward, as the numerous letters in evidence conclusively establish, all the printing of theatre programs by appellee was done for appellant, and all the accounts rendered for the same were made through the Buffalo office to appellant. Payment of many of these accounts was made by appellant to appellee. Appellant, during all the time covered by the dealings in controversy, maintained a business office in Buffalo. When Winchester quit, Taylor was installed in his place. That Winchester represented appellant seems indisputable from appellant’s action in writing appellee that “I am going to send a man named Taylor to take charge of my business.” This was when Winchester quit. On December 20, 1905, appellant wrote a letter to Taylor, introducing Hugh Mottschall as his private secretary, in which letter he wrote that Mottschall had “charge of all the correspondence and reports from the other cities,” and requesting Taylor to let Mottschall go over the books, wherefrom he could make a report of the condition of the Buffalo business. Thereafter, when appellant did not sign his letters to appellee, they were signed by Mottschall for him. There is an abundance of evidence in this record sustaining the finding of the jury that appellant was indebted to appellee in the amount of his claim, and that the amounts covered by the account in suit arose out of dealings between them in accord with the terms of the letter of July 2, 1902. Even were the evidence in sharp conflict upon this point, we would not be warranted in disturbing the conclusion reached by the jury and concurred in by the trial judge, unless we were convinced that such finding was manifestly contrary to the weight of the evidence. The evidence fails to so convince us. Threshing Machine Co. v. Stein, 133 Ill. App. 169; C., C., C. & St. L. Ry. Co. v. Johnson, 99 ibid. 400.

The contention that appellant and Taylor were partners, was one of fact for the jury, and with their solution we see no just reason for onr dissent or interference. Pardridge v. Ryan, 14 ibid. 598.

Whether the books proffered and received in evidence were admissible, is of no consequence, as the amount of the indebtedness found due by the verdict is not controverted.

Appellant’s contentions that the business of the Buffalo office, for which appellee did printing, was that of the corporation of Winchester & Hall, and therefore the corporation and not appellant was liable, and that if he, appellant, was liable at all, it was as a partner of Taylor, are inconsistent with each other, and this fact, together with the convincing evidence of appellee that his arrangements and d.ealings were all with appellant, may have led the jury to regard appellant’s evidence as unreliable.

It is urged as ground for reversal, that the court erred in instructing the jury orally, because cases of the first class, the Municipal Court Act provides, shall be commenced and prosecuted in the same manner as suits in the Circuit Court, where jurors must be instructed in writing and not otherwise. By section 37 of the Municipal Court Act the judges of the Municipal Court may, in their discretion, instruct jurors either orally or in writing. The right so to do covers all classes of cases cognizable in that court where trial by jury is had. The trial judge in the case at bar elected to instruct the jury orally, and so advised counsel before proceeding to do so. To the oral instructions of the court, counsel for appellant yielded his approval orally, at the conclusion of the judge’s charge, but added that he wished the court to give to the jury some written instructions which he had prepared and handed to the trial judge. But these written instructions were not given. This question has been settled against the contention of appellant in Morton v. Pusey, 237 Ill. 26, where the court say: “After the court had disposed of a motion made at the close of all the evidence, the attorney for plaintiff in error asked that the jury be instructed in writing, presented certain written instructions and requested that the court give the same. These were all refused for the reason that the court had elected to instruct the jury orally. At the conclusion of the oral charge the judge inquired whether there were any objections to the instructions as given. Counsel for plaintiff in error did not make any objection nor take any exception to the charge so far as the law stated or omitted was concerned, but asked that two of the written instructions which he had before passed up, and which two he then presented, should be given. The court refused both. One of them contained a proper element which went to the measure of damages, the substance of which should have in some manner been given to the jury, but as offered these instructions were properly refused, for the reason that they were in writing, when the court had determined to charge the jury orally and had so advised counsel before beginning to instruct.” This is parallel in every essential particular, involving the refusal to give written instructions where the court had concluded to instruct orally, to the question raised in the case at bar, and is decisive. Moreover, appellant is barred from questioning the sufficiency of the oral charge in any particular, because his counsel not only did not object or except to it, or any part of it, but expressed his approval of it, the objection made being confined to the court’s refusal to give the written instructions presented.

The contracts offered in evidence and excluded at the instance of appellant, had no bearing on the issues formed. They involved other matters and the rights of other parties in their dealings with appellant, and were of no concern to appellee and in no way related to the subject matter of the contract or dealings between the parties before the court. They were clearly irrelevant and ought to have been, as they were, excluded from the case.

We are of the opinion that the record demonstrates that the judgment of the Municipal Court does substantial justice between the parties, and the record being otherwise free from reversible error, the judgment of the Municipal Court is affirmed.

Affirmed.


author: Mr. Justice Baker

text:
    Clinton Pierson, Appellee, v. Lyon & Healy, Appellant.
    Gen. No. 14,554.
    1. Negligence—what by driver of truclc. It is negligence for a driver to back his truck without looking behind and when the duty to look is not observed and in consequence the truck is backed into a street car to the injury of the conductor, actionable negligence is established.
    2. Negligence—when joint liability need not be established. Even though the declaration charged joint liability against the several defendants, a verdict of not guilty as to one of such defendants does not exonerate the other if the negligence charged against such other has been proven.
    3. Verdicts—when not excessive. Held, that a verdict for $10,000 rendered in an action on the case for personal injuries is not excessive where it appeared that the plaintiff sustained a compound fracture of both bones of the leg; that as a consequence one of such legs was rendered an inch and a half shorter than the other and has become crooked and deformed; that the motion of <!> one of the ankles became greatly limited and that at the time of the trial, two years after the accident, the wound was still open, due, according to the evidence, to necrosis of the bone; and that the plaintiff was not able to work for more than a year after his injury.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. William H. McSurely, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed June 28, 1909.
    Statement by the Court. In an action on the case for personal injuries brought by appellee, as plaintiff, against Lyon & Healy, a corporation, and the city of Chicago, defendants, there was a verdict and judgment in favor of the city of Chicago, and a verdict and judgment thereon for plaintiff against Lyon & Healy for $10,000 damages, from which judgment said corporation prosecutes this appeal.
    Plaintiff was the conductor of an open street car going west in the north track in Forty-third street. At the intersection of said street and Prairie avenue a collision occurred between said street car and a gasoline truck of appellant, in which collision plaintiff sustained the injuries complained of.
    On a line with the north line of Prairie avenue and seventeen feet north of the north rail of said street car track was a stone walk across Prairie avenue. A few feet north of this cross-walk was an open trench, extending from the east side of Prairie avenue to within ten or twelve feet of the west curb in that avenue, so that the only part of the roadway open for travel was the space between the west end of said trench and the west curb. Prairie avenue had at one time been paved with wooden blocks. On the west side of the avenue, from the crosswalk to the street car track, these blocks were out, leaving a hole six to twelve inches deep, which was partly filled with water.
    The truck of appellant came into Forty-third street one block east of Prairie avenue, and proceeded west in the north street car track to Prairie avenue, and there turned north into that avenue. It ran in a northwesterly direction until its fore wheels ran upon said crosswalk, and was then near the west curb. A team and wagon going south reached the cross-walk about the same time. They were east of the truck, and there was not room for the truck to pass between the wagon and the west curb. The driver of the truck stopped his truck with its fore wheels on the cross-walk. Within a few seconds after the truck was so stopped, the street car on which plaintiff was the conductor reached Prairie avenue. Plaintiff, who had been collecting fares, went on the running board to the rear end of his car to get upon the rear platform. He had his right foot on the platform and the left on the running board, when his right leg, just above the ankle, was struck by the tail gate of the truck, and crushed between the tail gate and the car.
    Calhoun, Lyford & Sheean, for appellant.
    James C. McShane, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

Five witnesses called by the plaintiff testified that after the truck stopped, and after the greater part of the car had passed behind it, the truck backed four to six feet, and that the tail gate, which was down, struck the plaintiff, who was on the running board at the rear end of the car.

Appellant called three witnesses, Stinson, Tartt and Terry, who were all on the truck at the time of the collision. Stinson, the driver of the truck, testified that he stopped the truck because the team going south stopped and he could not pass by the team and wagon; that he threw the machine out of gear and applied the brake, that he did not look back and did not know that a car was there until the car struck his truck. He further testified that with the machine out of gear it could be backed by pressing his foot on a pedal, but that he did not press the pedal or back the machine. Tartt testified that the tail gate of the truck when it stopped was so near the railroad track that a car could not pass by, that the front end of the car struck the tail gate and the tail gate scraped along the side of the car. Terry testified that the car struck the corner of the tail gate and threw the car forward, that it bounced back, and when it went back a second time, caught the leg of the plaintiff.

The testimony of the witnesses for the plaintiff tended to show that the truck backed into the car, and the testimony of the witnesses for the appellant, that the car ran into the truck before the truck had gone far enough from the car track to permit a car to pass by.

The testimony of defendant’s witnesses is inconsistent with the physical facts. The truck was thirteen feet long over all, including the tail gate; the distance from axle to axle was nine feet, and the distance from the north rail to the cross-walk seventeen feet. The fore wheels of the truck were on, not at, the crosswalk, the body of the truck extended some distance forward of the hubs of the fore wheels, and the rear end of the tail gate must have been at least six feet from the north rail of the street car track when the car stopped with its fore wheels on the cross walk.

We think that the jury from the evidence might properly find that the truck went far enough north from the track to permit the car to pass by, and then stopped and backed into the car, and that such backing of the truck was the direct and proximate cause of plaintiff’s injury.

Stinson testified that he did not apply the reverse, but defendants offered no testimony to account for or explain the backing of the truck, and we think that from all the evidence the jury might properly find that Stinson did apply the reverse and back the truck into the car.

Appellant contends that even if the driver did back his truck against the car, he had no notice or knowledge that a street car was behind his truck, and therefore was not guilty of negligence in so backing his truck. With this contention we cannot agree. It is as much the duty of the driver of an auto truck when he backs his truck to look behind him, as it is to look to the front when he starts his truck forward.

We think that from all the evidence the jury might properly find that the defendant was guilty of negligence which was the direct cause of plaintiff’s injury.

If the defendant was guilty of negligence which caused or contributed to plaintiff’s injury, it is immaterial whether the motorman was or was not also guilty of negligence in attempting to pass behind the truck when it was only a few feet away from the track. He had charge of the operation of the car in the absence of signals from the conductor, and if he was negligent in operating the car under the circumstances shown by the evidence, his negligence cannot be imputed to the plaintiff. Nonn v. C. C. Ry. Co., 232 Ill. 378; C. U. T. Co. v. Leach, 215 Ill. 184.

We think that from the evidence the jury might properly find that the plaintiff was in the exercise of reasonable care for his own safety.

Appellant further contends that as' the declaration alleged that the proximate cause of plaintiff’s injuries was negligence on the part of appellant, combined and concurrent with negligence on the part of the city of Chicago, that therefore a verdict of not guilty as to the city was a finding that the negligence alleged in the declaration was not proved. This contention cannot, in our opinion, be sustained. As against appellant, it was only necessary for the plaintiff to prove the negligence alleged against it in the declaration. To entitle plaintiff to a verdict against appellant, it was not necessary to prove a joint liability on the part of appellant and the city of Chicago. I. & St. L. R. R. Co. v. Hackethal, 72 Ill. 612; I. C. R. R. v. Foulks, 191 id. 57; Postal Tel. Co. v. Likes, 225 id. 249.

We find no error in the rulings of the trial court on instructions.

Plaintiff • sustained a compound comminuted fracture of both bones of the leg two or three inches above the ankle. The small bone of the leg was broken into several pieces, and two and a half or three inches of the bone were taken out. The leg is an inch and a half shorter than the other leg, is crooked and deformed. The motion of the ankle is greatly limited, and the ankle is enlarged. At the time of the trial, two years after the accident, the wound was still open, due, as the surgeons testified, to necrosis of the bone. Plaintiff was not able to work until more than a year after his injury. We do not think that for such an injury, attended with such consequences, the damages awarded can be held excessive.

The record is, we think, free from reversible error, and the judgment of the Superior Court will he affirmed.

Affirmed.


text:
    Nellie Carlin, Administratrix, Appellee, v. Grand Trunk Western Railway Company, Appellant.
    Gen. No. 14,570.
    1. Negligence—failure to lower gates. Held, under the evidence, that the defendant company was guilty of negligence in failing to lower its crossing gates.
    2. Instructions—what appropriate, what not, upon question of negligence. Negligence is a question of fact; it is for the court to define negligence and for the jury to say whether certain facts do or do not constitute and amount to negligence. Held, in this case, that it was not error to refuse to give the following instruction:
    “The court instructs the jury that every person is hound to know that a railroad crossing is a dangerous place, and he is guilty of negligence unless he approached it as if it were dangerous. And if the jury believe from the evidence that the safety gates at the crossing in question were down, and the deceased went upon the tracks underneath the gates, and in so doing failed to exercise due care for his personal safety, and in consequence thereof was struck by an engine and killed, then his administrator cannot recover in this action, and your verdict should find the defendant not guilty.”
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed June 28, 1909.
    Kretzinger, Gallagher & Rooney, for appellant.
    A. L. Gettys and F. V. Campe, for appellee; William Prentiss and R. J. Finn, of connsel.
   Mr. Justice Baker

delivered the opinion of the court.

Appellee as administratrix of the estate of Hanz P. Schmidt, deceased, brought an action against appellant in the Circuit Court, to recover damages for the wrongful killing of her intestate by a passenger train of defendant as he was attempting to cross defendant’s railroad at a street crossing in the city of Chicago.

The first count of the original declaration alleges negligence generally in the operation of the train, and the second, negligence in failing to lower the street crossing gates. The seventh count of the amended declaration alleges that many people were accustomed to pass over said crossing, and that the defendant negligently and carelessly operated its engine along and upon said tracks at an unsafe rate of speed, and without any reasonable control over the same.

It appears from the bill of exceptions that during the trial the plaintiff offered in evidence section 1749 of the ordinances of the city of Chicago, and the defendant objected on the ground that said section had not been pleaded; that plaintiff’s counsel then asked leave to amend the declaration, and the trial judge said, “I will give leave to amend.” Plaintiff’s counsel then, without further objection or exception on the part of defendant, introduced and read in evidence said section, which is as follows:

“1749. Regulation of Speed. It shall be unlawful for any person, firm, company, or corporation, its agents, servants or employes, to operate or run within the limits of the city of Chicago, trains, engines, or cars, at any speed greater than the rates herein named, to-wit: Passenger trains and light or disconnected engines in the first district, twenty miles per hour; in the second district, twenty-five miles per hour; and in the third district, thirty miles per hour. ’ ’

The clerk’s record shows that plaintiff, after judgment, took leave to file an additional count nunc pro tunc, as of the day of the trial, but did not at any time, either during or after the trial, file such count or any amendment to the declaration.

The contentions of appellant here, as stated in the brief are: “that the weight of the evidence does not sustain the verdict either of negligence on the part of the appellant, or of due care on the part of the deceased; and that the court erred in refusing to give certain instructions asked by appellant.”

Loomis street, a north and south street, is crossed by four railroad tracks. The two northerly tracks belong to another company, and the two southerly tracks to the defendant. The defendant maintained and operated gates on each side of said four tracks, which were operated by a man in a tower fifteen feet high, situated in the space between said two sets of tracks. The accident occurred about nine o ’clock at night. The deceased came from the north on the west side of Loomis street, and when he reached defendant’s south track, was struck and killed by the engine of.the eastbound passenger train of the defendant. Three witnesses called by the plaintiff testified that the gates were not lowered until after the deceased had passed by the north gate. For the defendant Mr. Schneider testified that the north gate was down when deceased reached it, and that he passed under it. His wife also testified that the gates were down and that she saw deceased pass under the north gate. Gallagher, the tower man, testified for defendant that when he first saw deceased he was on the west sidewalk between the tracks of defendant and the tracks of the other company ; that the gates were then down; that he first saw the eastbound train when it was at Ashland avenue, two blocks west of Loomis street; that he then let down his gates. On cross-examination he testified that he saw the train before he saw deceased; that he saw deceased “when I was putting down my gates.” It does not appear from Gallagher’s testimony that the gates were lowered before deceased passed the north gate. On the contrary, his testimony that deceased was between the two sets of tracks when he first saw him, and that he saw him when he was putting down his gates, tends rather to show that deceased had passed by the north gate before the gates were lowered. We think that from the evidence the jury might properly find that the gates were not lowered until after deceased had passed by the north gate.

McCarthy, a witness called by plaintiff, testified that the speed of the train was sixty miles per hour, Sulaski that it was fifty miles per hour. For the defendant, Gallagher testified that the speed of the train was twelve to fifteen miles per hour, Schneider, that it was ten miles per hour, and Downer, the fireman, that it was from fifteen to eighteen miles per hour. Schneider also testified that he heard the whistle of the engine when the train was a mile west of Loomis street. We think that from the evidence the jury might properly find that the defendant was guilty of negligence in failing to lower its gates before the train reached Ashland avenue and before the deceased passed by the north gate. The deceased was in the habit of passing over said crossing daily. He had, we think, as was said in C. & A. R. R. v. Redmond, 70 Ill. App. 119, 123, “a right to rely upon the open gate as a notice to him that no train was close at hand, and as an invitation to him to make the crossing in safety, so far as an approaching train was concerned.”

There is evidence tending to show that a train passed out (west) a short time before the eastbound train reached Loomis street. Gallagher was asked in chief what attracted his attention to the eastbound train that night, if anything, and answered, “Well, the other one was after going out.” We cannot know what deceased saw or heard as he approached defendant’s tracks. The jury have found that he was in the exercise of due care for his own safety. We think that from the evidence in this record the jury might properly find both that the defendant was guilty of negligence which was the direct and proximate cause of the death of plaintiff’s intestate, and that plaintiff’s intestate was in the exercise of due care for his own safety.

The error alleged as to instruction is the refusal of the court to give for the defendant the following instruction :

‘ ‘ 2. The court instructs the jury that every person is hound to know that a railroad crossing is a dangerous place, and he is guilty of negligence unless he approaches it as if it were dangerous. And if the jury believe from the evidence that the safety gates at the crossing in question were down, and the deceased went upon the tracks underneath the gates, and in so doing failed to exercise due care for his personal safety, and in consequence thereof was struck by an engine and killed, then his administrator cannot recover in this action, and your verdict should find the defendant not guilty.”

Negligence is a question of fact. It is for the court to define negligence, but for the jury to say whether certain facts do or do not constitute and amount to negligence. The jury were told in the 9th instruction that “if deceased was guilty of negligence in going upon the crossing at the time of the accident, then there can be no recovery in this case, ’ ’ and the same rule was stated in substance in the first and second instructions given for the defendant. In our opinion the court did not err in refusing to give to the jury the first part of said second refused instruction, and the substance of the remainder of said instruction is contained in other instructions given for the defendant.

The record is, we think, free from reversible error, and the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Sophie Topolski, Appellee, v. Chicago Heights Gas Company, Appellant.
    Gen. No. 14,553.
    1. Negligence—manner o/ repairing gas pipes. If a personal injury is suffered by escaping gas, negligence is established if it is shown that the defendant in repairing the gas pipe in the premises in question disconnected the service pipe without shutting off the gas below the point at which such pipe was so disconnected.
    2. Verdicts—when set aside as against the evidence. A verdict will be set aside as against the evidence if it is clearly and manifestly so.
    Action in case for personal injuries. Appeal from the City Court of Chicago Heights; the Hon. Homeb Abbott, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed and remanded.
    Opinion filed June 28, 1909.
    Lackner, Butz & Miller, for appellant.
    George A. Brinkman, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

In an action on the case for personal injuries brought by appellee against appellant, plaintiff had judgment for $1,500, and the defendant appealed.

Plaintiff’s husband conducted a saloon and boarding house in Chicago Heights. The defendant put gas pipes and fixtures in said building and supplied gas to it. The cause of action alleged in the declaration was that through the negligence of the defendant gas was permitted to escape into said building, and that the plaintiff, by inhaling such gas, was injured.

On the ground floor of the building was a room about thirty-eight feet long and twenty-three feet wide. In one corner of this room was a room eight or ten feet square, but the partitions which separated it from the remainder of the room only extended to within two or three feet of the ceiling. ■ In the larger room was the bar, and in it the family and boarders ate their meals. The smaller room was used as a kitchen, and in it were the gas supply pipe, gas meter and regulator.

An odor of gas was noticed in the building on the evening of December 21,1905, and defendant was notified and requested to make repairs. The next morning between seven thirty and eight o’clock, Myers, a gas fitter, and Flary, a helper, in the service of the defendant, came to-the building to make repairs.

The testimony of the plaintiff tended to show that after Myers and Flary had been at work in the small room about an hour, she, then standing by the bar in the large room, was overcome by gas and fell to the floor. She testified in chief that Myers and Flary “unscrewed a pipe in three small pieces, * * * and they were working there when I started to holler, and says, ‘Jesus, Mary and Joseph, there is gas around,’ and they said, ‘The gas won’t kill nobody,’ and in the meantime I fell.” * * *

“Q. Where were you standing at the time when you fell?

A. On the corner back of the bar.

Q. What did they do then, if you know?

A. I did not know nothing. I do not remember anything.

Q. Do you know how long you laid there?

A. I do not remember how long I was there.

Q. When do you remember anything after that—■ after that time that you fell down; when do you remember anything after that?

A. I remember that I went outside and I had to throw up, and'got the hiccoughs and started to holler, and could not holler nobody.

Q. Do you know how you got out?

A. I remember I got out on the four and I was hollering. I could not holler hardly. ’ ’

She further testified that she sat down on the sidewalk, and a boy and girl employed by her took her into her house and up stairs. On cross-examination she testified that she fell down right away after the men said that the gas would not hurt her, and “did not know nothing;” that the men ran out after she fell down; that the taking off of the pipe, the running away of the men and her fall all happened pretty near the same time; that when she was feeling so bad, the men left everything and ran away.

Myers testified that he and Flary went to the saloon at eight o’clock in the morning of December 22nd-; that he noticed an odor of gas, but not a strong odor, in the saloon; that he found a leak in a pipe leading to an unlighted burner in a chandelier in the saloon, only partially turned off; that he turned the cock and shut off the gas; that he went into the little room and shut off the gas by turning the service cock, which was below the regulator; that he then took off the regulator and, when it was off, discovered a slight leak in the service cock, and screwed a plug into the top of the service cock; that he then disconnected the regulator and took it with him to the shop; that he and Flary were at the saloon three-quarters of an hour; that plaintiff did not utter any exclamation or fall down while they were at the saloon, but was standing Up when they went away. The testimony of Flary as to what occurred at the saloon in the morning was substantially the same as that of Myers. He testified that plaintiff did not utter any exclamation; did not fall down, but was standing up when he and Myers left.

Myers and Flary left the saloon before nine o’clock, and did not return until after one o’clock in the afternoon. Plaintiff, according to her testimony, was overcome by gas before they left in the morning, and it is therefore only necessary, in determining whether the verdict is contrary to the evidence, to consider the testimony tending to show what occurred in the morning.

The only act of negligence which the testimony of the plaintiff tends to prove is the disconnecting of the service pipe without shutting off the gas below the point at which the pipe was so disconnected. That the service pipe was disconnected is undisputed. If this was done without shutting off the gas, such act was a negligent act. If, before disconnecting the service pipe, the gas was shut off by turning the service cock, the act of disconnecting the service pipe was not negligent.

The plaintiff did not testify that she observed the service cock, or that she knew that the gas was not turned off below the place where the pipe was disconnected, before the pipe was disconnected. Myers and Flary both testified that the service cock was turned and the gas shut off before the pipe was disconnected.

The testimony of Myers and Flary that fb«v off the gas at the service cock before disconnecting the pipe above the service cock, is probable. A natural regard for their own safety would prompt them to so shut off the gas before disconnecting the pipe. Again, it is difficult to see how plaintiff, out in the large room, could be overcome by gas escaping from an open pipe in the small room, when neither Myers nor Flary, who were at work in the small room, was overcome or even affected.

The testimony of plaintiff that she was overcome and fell to the floor in the presence of Myers and Flary, and that they left their work and ran away, leaving her lying on the floor unconscious, is improbable and is contradicted by both Myers and Flary.

A careful review of all the evidence has led us to the conclusion that the verdict was so manifestly against the evidence that the trial court erred in denying defendant’s motion for a new trial, and the judgment will therefore be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Holdom

text:
    Sophia Koelling, Appellee, v. Louise Foster et al., Appellants.
    Gen. No. 15,607.
    1. Injunctions—what subject to review upon appeal from interlocutory. Upon an appeal from an order granting a preliminary injunction, the Appellate Court is restricted to a review of one question, namely, did the bill state a cause entitling the complainant to the injunction prayed and granted.
    2. Injunctions—when lie to restrain trespass. A court of equity will not enjoin a trespass unless facts and circumstances are alleged in the bill from which it can be seen that irreparable injury will result from the act complained of, and that there is no adequate remedy at law, or that a multiplicity of suits will result unless equity intervenes and restrains the threatened trespass, or that the trespassers are financially irresponsible and unable to respond in damages to the injured party for the result of the unlawful action threatened.
    3. Injunctions—when temporary, should not be granted. If the complainant can have no ultimate relief on a hearing upon his bill filed, it is error to grant an interlocutory injunction upon said bill.
    4. Appeals and ebrobs—when freehold not involved. In an appeal from an order granting a preliminary injunction, it is not the province of the Appellate Court to determine the rights of the parties in the subject-matter of the litigation but simply to decide whether from the averments of the bill the complainant is entitled to the injunction obtained from the chancellor; in such a case, therefore, even though the merits of the controversy may involve a freehold, a freehold is not involved for the purpose of determining the appeal from the interlocutory order.
    5. Wills—what does not excuse failure to renounce. Renunciation by the widow must be made pursuant to statute within the period of limitation prescribed and a failure so to renounce is not excused by ignorance of the law.
    Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.
    Heard in this court at the March term, 1909.
    Rehearing denied July 1, 1909.
    Reversed.
    Opinion filed May 20, 1909.
    Statement by the Court. This is a statutory appeal allowed from an interlocutory injunctional order granted without notice and without bond.
    Counsel for appellants have argued and assigned for error the refusal of the chancellor to dissolve the injunction on his motion. With that phase of the case we have no concern on this appeal. We are restricted in our review to one question, viz: Does the bill state a case entitling appellee to the injunction prayed and granted without notice and without bond?
    On June 26, 1907, appellee filed a bill in the Circuit Court, from the averments of which it appears, inter alia, that she was married to Christian Koelling October 9, 1890; that he died June 19, 1899; that said marriage was the second matrimonial alliance of both parties, and that children were born to each as the result of their prior marriages, and that one child, Christian Koelling, Jr., was the fruit of the last union; that Christian Koelling died testate possessed of real and personal property, among which was a farm of 110.67 acres at Northfield, in Cook county, on which appellee and her husband lived during their married life to each other, and that appellee was in possession of the farm from the time of Koelling’s death until the filing of the bill.
    The clauses of the will which concern appellant are as follows:
    “2nd. Gives wife, Sophia Koelling, all personal estate provided she pay, October 1st, A. D. 1906, Louise Koelling, daughter, $500; Harry Wesche, grandson, $200; Minnie Koelling, daughter, $200; Christian Koelling, daughter, $200; Mary Koelling, daughter, $200; Frederieke Koelling, daughter $500; said widow is to take all personal estate in lieu of her dower, homestead right, and widow’s award.”
    “3rd. Gives, bequeaths and devises to Sophia Koelling, widow, said farm of 110.67 acres, that is to say that my said wife shall have the full use and control of said farm until October 1st, 1906, and no longer, said widow to pay taxes and keep all buildings in repair.”
    “8th. Gives Sophia Koelling full power and authority to sell Martin county, Minnesota, farm, and to use $5,000 of proceeds to pay mortgage on Cook county farm, and the balance to her.”

      Appellee was appointed executrix without bond, and it appears that she .propounded the will and letters testamentary thereon were issued to her by the Probate Court of Cook county; that she filed an inventory of her testate’s estate, as required by law, in which the Northfield farm was listed, with personal property consisting of household furniture, farming stock and utensils appraised at $486.20, also growing crops valued at $382.64, making the total value of personal property $868.84; that a widow’s award in the sum of $1,200 was allowed by the Probate Court, and appellee was removed from her office as executrix by the Probate Court, for failure to obey its order to pay $592.87, the value of personal property in her hands as such executrix; and such other and further proceedings were had in said estate that a settlement thereof was effected by order of the Probate Court entered November 15, 1906; that prior to the death of Christian Koelling he had disposed of his Minnesota farm; that appellee has paid in excess of any money or property received from Christian Koelling’s estate, for funeral expenses and in harvesting crops on the farm, etc., about $1,600; that she has not received anything of value from her husband’s estate under his will; that she retained the personal property of the estate in ignorance of the facts and under a misapprehension of her legal rights, and that she. did not know she was required to elect to take under or renounce the provisions of the will made for her benefit, and was wholly ignorant of the law; that as soon as she learned of her rights, she renounced the provisions of the will in her favor and elected, and by the bill does elect, to take her dower and homestead under the statute; that on October 6, 1906, and at other times, she made demand of the heirs at law of Koelling to set off and assign her dower and homestead rights, and that her requests were refused; that a bill was filed by certain of Koelling’s heirs in the Circuit Court of Cook county, June 30, 1903, contesting said will, which bill was dismissed February 14, 1906; that appellee is uneducated, can neither read nor write the English language; that she did not understand the provisions of the will, and that she never elected to take under it because there was nothing to take; that the provisions of the will are void and of no effect as to appellee, because they gave to her nothing that she would not have taken under the statutes in relation to dower and homestead had Koelling died intestate; that certain of the devisees, heirs of Koelling, entitled to the Northfield farm under the will, are about to take summary measures to dispossess her of the farm by force. She prays for payment of widow’s award of $1,200, that dower and homestead in the farm may be set off and assigned to her, that she may have damages' for delay in making the assignment of her dower, that Fritz, John and Henry Koelling may be restrained from interfering with her possession of the Northfield farm, that an account may be taken of every transaction and dealing from the time of her marriage to Koelling and of moneys received and paid out in relation thereto, and “that defendants” be ordered to pay her whatever shall appear to be her due upon such accounting.
    On the recommendation of a master, and without no ■ tice to any of the defendants, a temporary injunction as prayed was ordered to issue without bond.
    James A. Peterson, for appellants.
    O’Donnell & O’Donnell, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

Counsel for appellee challenge the jurisdiction of this court to entertain this appeal, because they contend that a freehold is involved. But in appeals of this character we do not understand our province to be to determine the rights of the parties in the subject-matter of the litigation, but simply to determine whether from the averments of the bill the party is entitled to the injunction obtained from the chancellor. Thus where an injunction is improvidently granted, without notice, in a case where notice should have been given, aside from any other question raised by the bill, this court will reverse such injunctional order. So, where the statute requires a bond to be given as a condition precedent to granting the injunction prayed, and none has been given, the injunctional order so improvidently granted will be reversed without reference to the merits of the cause made by the averments of the bill. The contention, therefore, that this court is without jurisdiction to entertain this appeal is not well taken.

A court of equity will not enjoin a trespass unless facts and circumstances are alleged in the bill from which it can be seen that irreparable injury will result from the act complained of, and that there is no adequate remedy at law, or that a multiplicity of suits will result unless equity intervenes and restrains the threatened trespass; or that the trespassers are financially irresponsible and unable to respond in damages to the injured party for the result of the unlawful action threatened. Taylor v. Pearce, 71 Ill. App. 525; Thornton v. Roll, 118 Ill. 350; Chicago Public Stock Exchange v. McClaughry, 148 Ill. 372.

Concerning appellee’s being entitled to a restraining order, from what we shall hereafter say it will clearly appear that from no averment of her bill is she entitled to any relief whatever, either at law or in equity. If appellee can have no ultimate relief on a hearing, she can have no interlocutory injunction. Hovnanian v. Bedessern, 63 Ill. App. 353.

From the time of the death of appellee’s husband to the time of the filing of her bill, a period of eight-years, minus a few days, elapsed. She propounded the will and caused letters testamentary to be issued thereon to herself, and proceeded to administer the estate until removed from her office by the Probate Court for disobedience of its orders. The estate was settled November 15, 1906, and during all of this time her actions and conduct were in effect an affirmance of the will and an acceptance of its provisions. During no part of this time did she make any protest or seek to avoid the provisions of the will made for her benefit. On the contrary she continued to occupy and cultivate the Northfield farm for the whole term of the estate created by the will in. her favor, and not until the remainder men asserted their rights and attempted to oust her from possession did she make it known that she had any desire or intention to renounce her husband’s will and take her share of his estate, according to the statutes governing the distribution of the estates of those dying intestate. The only attempt made to avoid the legal consequences flowing from her conduct is her plea of ignorance and illiteracy. But such plea is unavailing. That ignorance of the law is no defense, is axiomatic. This is a necessary rule of law, for were it otherwise no rights would be safe from such a plea, which in the natural course of events could hardly ever be disproved.

Warren v. Warren, 148 Ill. 641, we think decisive of appellee’s claims, contrary to her contention. The statute makes it imperative on the part of the widow to renounce the will within a year of the death of the husband if she does not wish to be concluded by its provisions. A failure to do so is by construction an acceptance of its terms and obligatory for all time. As said in the Warren case, “But, under the peculiar terms of the Illinois statute, the provision in the will is declared to be a bar, unless the intention that it shall not be a bar is expressed in the will. The statute makes the silence of the testator the conclusive index to his intention, and it also makes the failure to renounce within a specified time conclusive evidence that the surviving husband or wife has elected to take under the will.” Again the court says in the Warren case, “If the widow deems such devise or bequest an inadequate compensation for dower, she can file her renunciation within the time specified, and thereby take what she is entitled to under the statute.” Not only is there nothing in Koelling’s will from which it can be said that the provisión made for appellee was intended to be in addition to her statutory right of dower and homestead, but, on the contrary, section 7 of the will in express terms provides that the bequests to her are in lieu of all such rights and widow’s award; therefore her rights are limited by the conditions of the will. ReQua v. Graham, 187 Ill. 67.

The case at bar is in no respect akin to Laurence v. Balch, 195 Ill. 626, because in that case no provision at all was made in the will of the wife for her surviving husband. Consequently, as the court held, there was nothing to renounce. His rights, not being at all involved by the will, rested in those given by the statute. It may be that the bequests to appellee were inadequate and not of the value which, but for the will, she would have been entitled to receive under the statute; but according to the terms of the will she took under it property of appreciable value, and she enjoyed it, such as it was, for eight years, and not having renounced the will within the statutory time, she is concluded by the will, and her attempt at so late a day to renounce it is abortive.

Appellee is not entitled, under the averments of her bill, to any of the relief prayed, and the Circuit Court erred in ordering a preliminary injunction, and that order is therefore reversed.

Reversed.