text:
    Myrtle Raymer, Appellee, v. Modern Brotherhood of America, Appellant.
    Gen. No. 5254.
    1. Pleading—when absence of similiter immaterial. Where a pleading concludes to the country and no further pleading is filed by the opposite party, but the parties go to trial, the case is treated as though a written similiter were filed and an issue of fact thereby formed.
    2. Pleading—effect of joining issue upon replication. If issue has been joined upon replications and such issue decided against the defendant, such defendant so having joined issue will not be heard to say that such replications were demurrable and did not constitute a legal answer to the pleas.
    3. Appeals and errors—when stipulation not part of record. A stipulation which pertains to the pleadings in a case upon which no order of court has heen predicated is not a part of the common law record.
    4. Appeals and errors—what complaint cannot he made. A party cannot complain of the submission to the jury of a question as one of fact where he has induced the court so to do, even though such question may in fact have been one of law.

      5. Insurance—when statements constitute representations and not warranties. Held, that because statements were made by the applicant as true “to the best of his knowledge and belief,” and because of other kindred reasons, the statements in question in this case were representations, and not warranties.
    6. Insurance—what essential to void, policy because of false representations in application. In order to defeat a recovery upon a policy upon the ground that false representations as to health, medical history, etc., were made in the application, it must be shown that at the time of making them the applicant knew or believed his representations to be untrue.
    7. Insurance—what not false representation affecting policy. To a question as follows: “Where and by what physician were you last attended, and for what complaint?” the answer given was, “None.” Held, that evidence to the effect that the applicant had prior to the making of such answer called upon doctors at their offices for advice did not establish the falsity and lack of good faith in making such answer.
    Assumpsit. Appeal for the Circuit Court of Stephenson county; the Hon. Richard S. Fabrand, Judge, presiding. Heard in this court at the April term, 1910.

    Affirmed.
    Opinion filed June 28, 1910.
    Opinion modified and rehearing denied October 18, 1910.
    Barker, Church & Shepard, for appellant; William T. Church, of counsel.
    Egbert B. Mitchell, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

On March 27, 1906, Arthur Baymer applied for a benefit certificate in the Modern Brotherhood of America, appellant herein. On April 3, 1906, appellant issued to him a certificate which provided that in case of his death $1,000 should be paid by appellant to Myrtle Raymer, his wife, the appellee. Arthur Raymer died on January 27, 1908. Myrtlé Raymer brought this suit to recover the sum named in said certificate. The declaration contained one count upon the certificate, to which was afterwards added common counts for money had and received and for interest. Appellant filed fifteen pleas and four additional pleas. Appellee filed eleven replications to said pleas, each concluding to the country. The clerk has inserted in the record a stipulation, hereinafter mentioned, as to said replications. The parties went to trial. Appellee recovered a verdict for $1,000. Motions by appellant for a new trial and in arrest of judgment were overruled and appellee had judgment, from which defendant below prosecutes this appeal.

The certificate recited that it was issued in consideration of certain payments “and the representations, statements and answers made in the application for membership, a copy of which application is hereto attached and made a part hereof.” It also contained the following:

“This benefit certificate is issued and accepted upon the following express warranties, conditions and agreements.

“1. This certificate, the articles of incorporation, fundamental laws, by-laws, rules and regulations of this society now in force, or which may be hereafter adopted, and the application for membership, including the physician’s report, a copy of which application and report is hereto attached, shall together constitute the exclusive contract between this society, the member and the beneficiary.”

Part 1 of the application, after certain questions and answers, contained the following:

“I declare that I am, to the best of my knowledge and belief, in sound physicial condition, and I further declare and warrant that the above statements, together with the answers made or to be made in the other parts of this application by me to the physician, are true and shall form the basis of my contract for membership and certificate, between me and my beneficiary and all parties who may at any time have an interest therein, and the said society, and any untrue or fraudulent answers, or suppression of facts in regard to my health, personal habits or physical condition, in this application * * * shall immediately make said benefit certificate null and void * * *' I further agree that the certificate hereby applied for shall not be in force until * * * the actual delivery of the certificate to me during my good health.”

Part 1 was signed by Arthur Raymer. Part 2 consisted of questions to he put by the examining physician and answered by the applicant. Among other questions and answers were the following: “4. Have you ever had any of .the following diseases? Answer ‘yes’ or ‘no’ opposite each. If ‘yes’ state the date, duration and severity of illness.” Here follows a list of thirty six different diseases, and the answers all in the negative, and among them these: “Consumption Ho. * . * * Disease of the lungs. Ho. * * * Pleurisy. Ho.” “5. Have you ever had any other disease or surgical operation ? Ho.” “9. When and by what physician were you last attended and for what complaint? Hone.” “16. Has either of your parents, or any of your brothers, sisters, uncles, aunts or grand-parents been afflicted with rheumatism, insanity, tuberculosis, scrofula, or any hereditary disease? Ho.” “21. Are you aware of anything regarding your health, habits, circumstances, or family history not already stated that should he known to the fraternity in order to fairly estimate the risk on your life ? Ho.” Under the head of “Family Record” he stated that his mother died of pneumonia and that he had two sisters living in good health. The following was added to part 2: “I hereby further declare that I have read and understood all of the above questions put to me by the medical examiner and my answers thereto, and that my answers are warranted by me to be true, and that I am the same person described above.” This was signed by Arthur Raymer. There was a Part 3, containing questions and answers and signed by the applicant’s medical examiner only, which appellant claims, and appellee denies, is a part of the application, in which was the following: “22. Has the applicant during the past 5 years lived in the same house with or nursed anyone suffering from consumption? If so, state the particulars ? Ho.”

The first plea was the general issue. The remaining pleas were special and averred the making of the application, and set out particular parts thereof and alleged théir untruth. The second plea alleged that on the date of the delivery of the certificate to Raymer, he was not in good health, and was sick and in unsound health and his health was permanently impaired, which appellant did not know, but which facts Raymer well knew and concealed them with intent to deceive appellant and to procure said certificate. The third plea averred that at the time of said application and for a considerable time prior thereto, Raymer had had consumption and knew that his answer on that subject was false and made the false answer with intent to defraud appellant, and that appellant relied thereon and was defrauded thereby and would not have issued the certificate if it had known that he had consumption. The fourth plea averred that Raymer, at the time of the application and for a considerable time prior thereto, had had consumption and that his answer on that subject was false. The fifth plea averred that the answer to the 14th question in the application was false; that within seven years preceding the application Raymer had been severely sick and afflicted with consumption, tuberculosis, and other diseases of the lungs, and that he knew said answer to be untrue and made said false answer to deceive appellant, and that appellant was deceived thereby and relied on the false answer and would not have issued the certificate if it had known the truth. The sixth plea averred the falsehood of the answer to the 14th question, and that Raymer within seven years preceding the application Raymer had been severy sick and afflicted with consumption, tuberculosis, and other diseases of the lungs. The seventh plea averred the falsehood of the answer to the 16th question and averred that before the making of the application the mother of Raymer had been afflicted with tuberculosis, and a sister of Raymer then was, and theretofore had been afflicted with tuberculosis; that he well knew the answer was false and made it with intent to defraud appellant and that appellant relied on the false answer and would not have issued the certificate if it had known the truth. The eight plea averred the falsehood of the answer to said 16th question. • The ninth plea averred the falsehood of the statement in the application under the head “Family ¡Record,” wherein it was stated that the mother of Raymer died of pneumonia, whereas she died of pulmonary tuberculosis; that Raymer knew the answer to be false and made it with intent to deceive appellant, and appellant was deceived thereby and would not have issued the certificate if it had known the truth. The tenth plea alleged that said statement in the family record was false and that said mother of Raymer died of pulmonary tuberculosis. The eleventh plea averred the falsity of the statement under the head “Family Record” that the health of the two sisters of Raymer was good, whereas one of them was suffering from disease of the lungs; that Raymer knew that the answer was false and made it to deceive appellant and that appellant was deceived thereby and would not have issued the certificate if it had known the truth. The twelfth plea averred the falsity of said statement about the two sisters of Raymer and averred that one ,of them was suffering from disease of the lungs. The thirteenth plea averred the falsity of the answer to question 22 in Part 3, and alleged that within five years next preceding the application, Raymer lived in the same house with and nursed his wife, who was suffering from consumption, that Raymer made the false answer to deceive appellant and that appellant was deceived thereby and would not have issued the certificate if it had known the truth. The fourteenth plea averred the falsity of said answer to said question 22, and that Raymer, within five years next preceding the application, lived in the same house with and nursed his wife, who was suffering from consumption. The fifteenth plea averred that each of the statements and answers contained in said application were untrue. The first additional plea averred the falsity of the answer to the ninth question and averred that within one year preceding the application, Raymer had been attended by a physician for a complaint with which he was then suffering; that he knew that said answer was false f that he made it with intent to defraud appellant and that appellant was defrauded and that appellant would not have issued the certificate if it had known the truth. The second additionál plea alleged that the said answer to the ninth question was false and that Raymer, within one year before the application; had been attended by a physician for a complaint with which he was then suffering. The third additional plea averred the falsity of the answer to question 22 in said part 3 in that Raymer within five years before the application, lived in the same house with his wife, who was suffering from consumption; that said false answer was made by Raymer with intent to deceive appellant and that it did deceive appellant and that appellant would not have issued the certificate if it had known the truth. The fourth additional plea related to the same answer and alleged that it was false and that Raymer had, within five years next preceding the application, lived in the same house with his wife, who was suffering from consumption. Such of these pleas as merely averred the falsity of the answer, averred also that such answer was a warranty. Appellee filed a similiter as to the first plea and special replications to all the other pleas, sometimes making one replication apply to more than one plea. As to all pleas which related to question 22 in Part 3, the replications averred that said alleged Part 3 was not a part of the application nor binding upon the applicant. ■Eách replication alleged that the answer therein referred to was not false; that Raymer did not know the answer was false; that he did not make such answer with intent to defraud appellant and that appellant was not deceived thereby; that, if Raymer made any statement or answer in the application, not in accordance with the facts, it was made by him in good faith, believing the same to be true, and that the benefit certificate did not thereby become void. Each of said special replications concluded to the country. Ho written similiters were filed by appellant.

The law is that where a pleading concludes to the country and no further pleading is filed by the opposite party, but the parties go to trial, the ease is treated as if a written similiter were filed and an issue of fact thereby formed. Funk v. Babbitt, 156 Ill. 408; Kaestner v. First Nat. Bank, 170 Ill. 322; Supreme Court of Honor v. Barker, 96 Ill. App. 490. The clerk has copied into the record the following stipulation, purporting to be signed by the attorneys for the respective parties:

“It is hereby stipulated by the parties hereto, that by going to trial- on the replications filed by the plaintiff, the defendant shall not be held to have admitted that any matters set up in said replications or either of them which are not a good answer in law to the defendant’s 4th, 6th, 8th, 10th, 12th, 14th and 15th pleas or which is immaterial as to said pleas, or either of them, is a good answer to such pleas or either of them.”

This stipulation is not embodied in the bill of exceptions nor does it appear that any order of court was made concerning the same. We are of opinion that the clerk has no power to make such a stipulation a part of the record in an action at law. Wilson v. McDowell, 65 Ill. 522; People v. I. & St. L. R. & C. Co., 122 Ill. 506. Cases .holding otherwise are generally in equity. But if the stipulation is a part of the record, and if it is to be treated as an imperfect pleading, we are of opinion that no force or effect can be given to it. It appears to mean that by joining issue and going to trial appellant did not waive the right to demur to the replications therein mentioned, if at any time thereafter it should be found that they were subject to demurrer. Many of these replications were double, and if they had been demurred to on that ground appellee would have been compelled to file a larger number of replications to raise all the issues presented by the replications which were filed. One of the questions which might have been raised by demurrer to some of these special replications was whether it was an effective reply to certain of the pleas to aver that Raymer did not know the falsity of the answer but believed it to be true and made it in good faith. We are of opinion that appellant could not join issue on these allegations of the replications and, after that issue was decided against it, he heard to say that those parts of the replication were demurrable. It follows that by joining issue upon those replications and going to trial, appellant has admitted that if Raymer believed the answers to be true and did not intend to deceive thereby, then appellant is liable upon the certificate, whether the answer was in fact true or not.

In this state of the pleadings, the question whether the statements contained in the application are warranties or representations is really immaterial, for the issues joined treat them as representations only. But we are of opinion that they are representations and not warranties. In the parts of the certificate above set out, they are first called representations and then warranties. In Part 1 of the application Raymer was made to declare that “to the best of his knowledge and belief” he was in sound physical condition. This qualifies his alleged warranty elsewhere that he had never in his life had any one of some 36 enumerated diseases. Further on, the application agrees that any fraudulent answer shall make the certificate void. If there was an express warranty that every answer was absolutely true, it would be superfluous to say also that fraudulent answers would make the certificate void. ' That provision implies that answers in good faith would not make it void. It is unreasonable to suppose that Raymer took his policy with a distinct understanding that it would be void if he had ever in his life from his earliest infancy had any one of the 36 diseases enumerated in question USTo. 4, which included such common complaints as la grippe, malaria and neuralgia, or that any life insurance company or beneficiary society would exact a warranty of the truth of matters which, from the very nature of the inquiry, might be wholly unknown to the applicant. If the abstract truth of all answers to the questions in this application were warranted, there is scarcely a probability that any liability could ever accrue under such a certificate or policy. These and other considerations lead us to the conclusion that the answers and statements in the application are to be held rep-reservations and not warranties. Minnesota Mut. Life. Ins. Co. v. Link, 230 Ill. 273; Continental Life Ins. Co. v. Rogers, 119 Ill. 474; Moulor v. Am. Life Ins. Co., 111 U. S. 335; Berner v. Brotherhood of Am. Yeomen, 154 Ill. App. 27.

It is not clear from the authorities whether the materiality of the statement is a question of fact for the jury or of law for the court. The authorities seem to indicate that it is a question of fact for the jury, unless the form of the certificate or the question makes it a matter of law for the court. Spence v. Central Accident Ins. Co., 236 Ill. 444. We are of opinion that if a question of law, the court must have found, and if a question of fact the jury should have found, that the answers by the applicant that he had not had consumption and that his parents and sisters had not had tuberculosis, that his mother died of pneumonia and that his sisters were in g'ood health, were material. Appellant, by instruction Mo. 3, caused the court to submit to the jury the question whether at the time the certificate was delivered to Arthur Raymer, he was not in good health but suffering from illness of a serious nature and whether that fact was material to the risk. Appellant therefore induced the court to hold that the materiality of the answers was a question of fact for the jury, and it cannot now complain if that view was adopted in this case. Indeed, by the third clause of its brief, filed here, appellant contends that if the statements in question were representations appellant was entitled to have their truthfulness and materiality submitted to the jury by proper instructions, and it is therefore bound here by the proposition that the materiality of the representations was a question of fact for the jury.

As already shown, the form of the issues submitted by appellant made the validity of the defense here interposed to depend upon whether Arthur Raymer made the answers in good faith, believing them to be true. We are also of opinion that it is the general tenor of .the cases above cited and also of Globe Mutual Life Ins. Assn. v. Wagner, 188 Ill. 133, and of Ill. Masons’ Benevolent Soc. v. Winthrop, 85 Ill. 537, that all that was required of the applicant was that the answers should be a fair statement of the facts, honestly and truly given, as understood by the applicant. Moreover, it is a rule applicable to contracts generally that to authorize rescission because of the untruth of a representation relied upon in making a contract, it must be shown that the party making the untrue representation knew or believed it to be untrue. Prentice v. Crane, 234 Ill. 302; Gillespie v. Fulton Oil & Gas Co., 236 Ill. 188. Or, as said of the doctrine at law in 2 Pomeroy’s Equity Jurisprudence, sec. 884: “Mo misrepresentation is fraudulent at law, unless it is made with actual knowledge of its falsity, or under such circumstances that the law must necessarily impute such knowledge to the party at the time when he makes it.” Therefore both by the rules of law applicable to the case and by the issues upon which the case was tried, it was essential to establish a defense that it be proven not only that some representation made by Arthur Raymer was material and untrue, but also that he knew it to be untrue or not act in good faith in making it.

In the application Raymer declared that to the best of his knowledge and belief he was in sound physical condition; that he had not had consumption, disease of the lungs, pleurisy or any other disease, or any disease or severe sickness during the last seven years and he therein agreed that the certificate should not be in force until its delivery to him during his good health. Appellant contends that he was not in good health when the application was made and certificate delivered, and that he had consumption, disease of the lungs, and pleurisy, and that the circumstances were such that he must have known these facts. The application was dated March 27, the medical examination was held March 29 and the certificate was issued April 3, 1906, and the applicant died January 27, 1908, of pulmonary tuberculosis. Appellant called Dr. Best, who first visited Raymer December 15, 1907, and thereafter attended him till his death. Dr. Best testified that Raymer worked at the barn where the doctor kept his horse and he therefore saw Raymer frequently; and that for three or four years before his death, Baymer was emaciated, coughing and running down in general health, and looked like a man suffering from tuberculosis. Dr. Karcher testified for appellant that he treated Baymer professionally from February 5 to Hay, 1906, which covered the period when his certificate was applied for and issued; that Baymer complained of a cough and pain"in the side, and that he had pleurisy at first, and-that afterwards the witness diagnosed the case as pulmonary tuberculosis, but that he did not tell Baymer what his diagnosis was, and that Baymer was working all the time, and he did not attend Baymer at his house. Samuel Baymer, the father of Arthur Baymer, testified for appellant, that before Arthur’s mother died, which was January 29, 1906, Arthur took medical treatment; that a month or two after his mother’s death he came to the house in a buggy and was “pretty sick, kind of poorly;” that he had a cough before his mother died. Peerless Chapman, witness for appellant, testified that she nursed Arthur’s mother during the last three weeks of her life and that she saw Arthur there twice during that time; that he was thin, frail, emaciated and had a cough. Mary Windecker, the mother of Arthur Baymer’s first wife, who died October 12, 1902, testified for appellant that Baymer and her daughter lived in her house from March, 1902, till the daughter died, and that he then continued there two or three months; that he was weak and coughed and was not well, and that thereafter she saw him every two weeks till his mother died, which was in January, 1906, and that he was worse than before and was coughing. Pearl Windecker, a sister of Baymer’s first wife, testified for appellant that she lived in her mother’s home while Arthur Baymer lived there, and that Arthur was not very well and coughed a great-deal, and that she knew him after he left their house, somewhere about January, 1903, and that after that he grew gradually weaker and coughed very much more than before. J. Gr. Hayes testified for appellant that Baymer worked nights in his livery barn from April, 1906, till November, 1907, and that he was weak a part of that time and not able to do a man’s full work. On the other hand, appellee introduced the following testimony: George Bepker was accustomed to shave Arthur Raymer. He testified that, Raymer had a cough for the last five or six months before he died and that, he had not noticed it before, and that Raymer was tall and thin. Edward Reinhold testified that he knew Raymer since six or seven years before the trial, which would be the last five or six years of Raymer’s life, and that he saw him early in 1906 and that he was then in his usual health. Andrew Buss testified that he knew Raymer a couple of years before his death, and that his health seemed to be good. John Baker,, the father of Raymer’s second wife, the appellee here, testified that Raymer married his daughter in 1903 and moved to Iowa and came back to Freeport in the spring of 1904 and lived with him till June, 1905, and then moved to Mendota, and in ¡November, 1905, moved to Stockton, and in January or February, 1906, came back to Freeport and moved in with the witness, and from that time on Raymer lived there till he died; that from February, 1906, he saw Raymer every day; that Raymer’s health was good so far as he knew and so continued till five or six months before he died; that he kept on working and made no complaint; that the witness never knew Raymer to have a cough till six months before he died; that it was four to six months before Raymer died that the witness first noticed something wrong about him; that Raymer was an extra good workman and worked for him in -the summer of 1904; that he ceased work about two months before he died and a physician was called about six weeks before he died. Burt C. Baker, a brother of appellee, testified that Raymer lived with him at Stockton from ¡November, 1905, till February, 1906; that he only came to Freeport once till his mother’s death, and then only stopped at his mother’s house at noon and then returned to Stockton, and came again to Freeport to his mother’s funeral. He also testified thgt he knew Raymer about twelve years and saw him about once a day; that he worked with him in Freeport in 1904; that he did not know that Raymer was sick till about two months before he died and never heard him cough till about a month before he died; that at Stockton Raymer worked every day and was never sick. Dr. Peck also testified for appellee concerning his examination of Raymer in March, 1906, for appellant, when Raymer applied for this certificate. He testified that he had known Raymer eight years and examined him on March 29, 1906; that he examined his heart and lungs by auscultation; examined his heart, lungs, liver, stomach and bowels by percussion, his urine by analysis, his lungs and height by measurement, his temperature by a fever thermometer, and the general outline of his chest by inspection, and that he observed the number of respirations per minute and their character. He testified that he made a thorough examination; that Raymer’s health was then very good; that his health was normal, that is, that so far as a physician could ascertain by a medical examination, he was then in good health. Appellee testified that she first met Arthur Raymer in 1902; that they were married in 1903; that he was taken sick about six months before he died; that his health was very good before that time; that his cough first appeared from four to six months before he died; that he was in good health in March, 1906, when examined for this certificate, though he then had a cold; and that he never was sick while they lived in Stockton. Della Mitchell, the married sister of Arthur Raymer, testified that she moved from Freeport to another town in that county three years before Arthur died and did not see him frequently after that, but that before her removal she saw him often and that he was in good health.

It will be seen that this evidence is very conflicting. While that introduced by appellant tends to show that Raymer had tuberculosis before he applied for this certificate, or pleurisy or a cough or other lung trouble, the evidence introduced by appellee tends to show that, while he was tall and spare and thin, yet he was in good health and free from cough and from any lung trouble till about six months before his death. But further than that, Dr. Peck made this examination as the agent of appellant. Appellant introduced in evidence what is called part 3 of the application, which contains the medical examiner’s detailed report, giving the height and weight of the applicant, his appearance, his temperature, the rate of his pulse, his chest measurement, his respiration; the examiner therein stated that he considered the applicant safely insurable and considered him, not a fair or good risk merely, but a first class risk. It is not claimed that Dr. Peck in any way colluded with the applicant or was in any way unfaithful to the duty he owed appellant as its medical examiner and agent. It is incredible that he could have honestly made such a report to appellant if Raymer had shortly prior thereto been in the condition described by appellant’s witnesses. It also appeared that the mother and sister of Raymer’s first wife had some feeling against him because of a financial transaction between them. The jury have believed the witnesses for appellee upon this subject and the trial judge has approved their verdict. We cannot say they should 'have found the other way.

But it is said that Raymer made a false answer when, to the ninth question, “When and by what physician were you last attended and for what complaint,” he answered “Hone.” It is not the ordinary use of the word to say that a physician is attending a person when he does not go to that person’s house, hut the person comes to his office for medical advice. It would not naturally be understood by an applicant for such a certificate as calling for information on that subject. If given that meaning, it would be a trap for the applicant. Probably there are very few persons of the age of Raymer who have not at some time gone to a doctor’s office for medicine or advice concerning some ailment. Dr. Karcher did not tell Raymer that he had pleurisy and later that he had decided that he had pulmonary tuberculosis; and Raymer kept on at work all the time. Dr. Karcher did not testify how many times Raymer came to his office. Under this evidence we conclude that the answer to the ninth question should not he considered untrue, nor known to be untrue, nor made with intent to deceive, nor made in bad faith.

In answer to question 16, Raymer stated that his parents had not had tuberculosis, and under the head of “Family Record” that his mother died of pneumonia. She died January 29, 1906, two months before this application. It is claimed by appellant that she had and died of tuberculosis and that Raymer must have known that fact. Samuel Raymer, the father, testified for appellant that Arthur’s mother died of consumption and was ill of it a couple of years, and that Arthur was there twice during that time. Peerless Chapman testified to the same effect. Dr. Bushnell testified that he was in Freeport from Juno 1903, and treated Arthur’s mother off and on thereafter while she lived and that during all the time he treated her, she suffered from pulmonary tuberculosis, and that the immediate cause of her death was a pulmonary hemorrhage; that he cautioned the family against contagion, and that he saw Arthur Raymer there during his visits; but he did not testify that he cautioned him or said anything to him about the disease. The proof for appellee showed that Raymer and his second wife, appellee, moved to Iowa in 1903, came back to Freeport in the Spring of 1904, moved to Mendota in January, 1905, and that from, there to Stockton, and did not again live in Freeport till after the death of Arthur’s mother, and that Raymer was almost never in Freeport during that time except in the spring of 1904, till January or February, 1906. There was no proof that Arthur’s mother was confined to her bed till a comparatively short time before her death and no proof that Arthur was ever told that she had consumption. Dr. Karcher testified that at the request of Dr. Bushnell, who was absent from the city, he made several calls upon Arthur’s mother about ten days before she died, and that she had acute pneumonia. The statement in the application, therefore, that the applicant’s mother died of pneumonia was supported by the evidence of Dr. Karcher; and. where doctors so materially differ as to the ailment, the jury might reasonably find that it was not shown that Arthur knew that his mother had or died of consumption.

In answer to the 16th question, Baymer also answered that his sisters had not had tuberculosis. Appellant claims that Baymer’s unmarried sister was sent to Montana because of symptoms of tuberculosis. There is no evidence justifying’ that position, and there is positive evidence that she at one time prior thereto had acute bronchitis and was treated therefor and recovered; and that she was afterwards examined for insurance shortly before she went to Montana, and that she did not have tuberculosis.

Baymer’s first wife died of tuberculosis at the home of her mother on October 12, 1902, and from March, 1902, till about four-months -before October Baymer and his wife had occupied the same room and he cared for her, especially at night, and during that last four months was frequently in her room during the daytime. Appellant argues that his answer to question 22 in part 3 of the application was untrue and must have been known to him to be untrue. Appellee had pleaded that this part 3 was no part of the application and was not binding upon him. The first part of the certificate hereinbefore set out says that a copy of the application is thereto attached and made a part thereof, and that the certificate is issued in consideration of the representations, statements and answers made in said application. As we understand this record, part 3 has never been attached to the certificate, and therefore is not the application to which the certificate refers. It was not signed by Baymer. Dr. Peck testified in chief that he put that question to Baymer and wrote his answer down as he gave it. On cross-examination he stated that he had no recollection of reading it to him nor what his answer was, but that he only testified to his customary practice. He testified that this was not read to Baymer after it was written and Baymer never saw it afterwards. We conclude that said part 3 is no part of the application, and that appellant’s pleas based thereon are not sustained, and that appellant has no defense growing out of the answer to said question 22.

The court refused, all the instructions requested by appellee except one, which merely named the parties plaintiff and defendant. The court gave several instructions for appellant. It refused eighteen instructions requested by appellant. Some of them were properly refused because they treated the answers as warranties, whose untruth constituted a defense. They were all properly refused because they did not submit the question (which was material under every replication to the special pleas), whether Baymer knew the answers to be false, or acted in good faith, believing them to be true. Some of them were also properly refused for other reasons.

The judgment is affirmed.

'Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Dibell

license: Public Domain

text:
    John Linnberg, Adm’r., Appellee, v. City of Rock Island, Appellant.
    Gen. No. 5257.
    1. Variance—when objection comes too late. Unless the objection of variance is made specifically in the trial court it cannot be urged on appeal.
    2. Variance—when and how objection must be made. An objection of variance cannot be first made in the motion for a new trial; it must be pointed out distinctly during the trial either when the evidence is offered or when the variance appears.
    3. Words and phrases—scope and meaning of “fell.” The word “fell” does not always and necessarily imply a lack of volition.
    4. Instructions—must be predicated upon the issues. An instruction is properly refused which is not predicated upon the issues in the case.
    5. Appeals and errors—when assignments of error waived. An assignment of error not argued is deemed waived.
    6. Negligence—what attractive nuisance. Held, in this case, that tbeie wa$ evidence which tended to support the verdict of the jury, and that such verdict could be sustained upon the ground that a part of a particular sidewalk which floated in a pond might be an attractive nuisance perilous to children of tender years.

      7. Res ad judicata—effect of former opinion The opinion of the Appellate Court becomes the law of the case, binding alike upon the lower court upon a retrial and upon the appellate court itself upon a subsequent review.
    Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of Rock Island county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed June 28, 1910.

      Certiorari denied by Supreme Court (making opinion final).
    J. F. Witter, for appellant.
    William A. Meese, Gr. A. Shallberg and Peek & Deitz, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

This case was formerly before this court in Linnberg v. City of Rock Island, 136 Ill. App. 495, where the facts are fully stated. Thereafter the cause was again tried and plaintiff had a verdict and a judgment, from which defendant below appeals. Perhaps some figures as to distances, measurements, size of the floating sidewalk and depth of the water are not exactly the same as were given at the former trial, but the differences are not material. At the former trial, Harry Hill testified that plaintiff’s intestate, Edgar Linnberg, jumped from the floating sidewalk and was drowned. At this trial Harry Hill testified that, when Edgar’s brother Emil came up the second time, and called for help, Edgar went into the water, but that the witness did not know whether he fell in or jumped in. Afterwards on cross examination the witness answered questions affirmatively which assumed that he had said that Edgar jumped in, and he further admitted that on the former trial he testified that Edgar jumped in. In all other material respects the evidence at the second trial was practically the same as at the first trial. At the first trial appellant offered no evidence. At the second trial it only introduced an extract from the testimony of Harry Hill at the first trial.

Appellant contends that there was a variance between the declaration and the proofs as to the place where Edgar was drowned, it being contended that the declaration charged that he was drowned within the limits of the highway. It is well settled that to take advantage, in a court of appeal, of a variance between the pleadings and the proofs the variance must be pointed out in the trial court, and that not merely by objecting on the ground of variance, but the objector must plainly point out wherein the variance lies. We think, too, that it is a fair inference from the authorities on that question in this state that it is not sufficient to set up a variance for the first time in a motion for a new trial, but that it must be pointed out distinctly during the trial, either when the evidence is offered or when the variance appears. L. S. & M. S. Ry. Co. v. Ward, 135 Ill. 511; Richelieu Hotel Co. v. International M. E. Co., 140 Ill. 248; Libby, McNeil & Libby v. Scherman, 146 Ill. 540, 549; Murchie v. Peck, 160 Ill. 175; City of Chicago v. Seben, 165 Ill. 371; Union Showcase Co. v. Blindauer, 175 Ill. 325; Alton Ry. G. & E. Co. v. Webb, 219 Ill. 563; Lehigh Trans. Co. v. Post Sugar Co., 228 Ill. 121. At no time during the trial did appellant object to any evidence or move to exclude any evidence on the ground that the place where Edgar was drowned was at a different place from that stated in the declaration. Appellant did object to testimony relating to what occurred after the boys left the street, and at the close of appellant’s evidence did move that the evidence relating to the existence of the pond on the private property and the evidence that Edgar was drowned at any other place than in the street be excluded, but it was not suggested that this was because of any variance between the proof and the declaration. It might have been based upon appellant’s proposition that it is not liable for anything which occurred beyond the boundaries of the street. But, further, there was no variance on the subject of the place where Edgar was drowned. The declaration charged that there was a large pond of water on and along the street and a part of the sidewalk floating therein, inviting and attractive to children and tempting them to ride thereon, and dangerous for any one who might ride thereon; and that Edgar, a child of tender years, whose attention was attracted by the inviting place to ride and play, not knowing the danger thereof, climbed on the sidewalk and fell into the water and was drowned; and the declaration plainly implies that Edgar got upon the floating sidewalk within the street; but it does not charge that he entered the water and was drowned while within the limits of the street. The proof showed that Edgar and his brother, Emil, got upon the sidewalk within the street and then paddled away from the street and that Edgar went into the water and was drowned some one' hundred or two hundred feet away from the street. We find no variance as to place.

The declaration averred that Edgar fell in the water and was drowned. Appellant contends that the proof shows that he jumped into the water and that there is therefore a variance between the declaration and the proof on that subject. Eo such variance was suggested during the trial in the court helow. We think it was too late in the motion for a new trial. Appellant assumes that the word “fell” implies a lack of volition and that the act alleged was not voluntary. A reading of the many definitions given to the word- “fall” in any unabridged dictionary will show that it does not always have so restricted a meaning; for instance, if it were said of a person that, in a sudden calamity, he fell upon his knees, a lack of volition would not be understood.

It is contended that the court erred in refusing two instructions requested by appellant, not numbered in the record, but which appear to be the fourth and sixth in order of the refused instructions. The fourth was framed to tell the jury that if 38th street, at the time and place complained of, was in a reasonably safe condition for travel, then the jury should find for appellant, and the sixth, that a city is not liable for every accident that may occur from defects in its sidewalks or streets. These were not applicable to the case here sought to be made against the city. It was not alleged that Edgar came to his death because 38th street was not in a reasonably safe condition for travel, nor because of any defect in the sidewalk or street. These instructions were therefore properly refused. If there was any error in the refusal of any other instruction requested by appellant, or any defect or omission in any instruction given at the request of appellee, such error has not been argued here by appellant and is therefore waived.

Appellant contends that a pond or stream of water in a city cannot in many cases be guarded and that all know of the danger therefrom and that a city ought not to be liable on account thereof. The doctrine of the “turn-table” cases was applied to a pond in City of Pekin v. McMahon, 154 Ill. 141. The pool here was not a natural pond, but was created by the act of the city in making a street across a deep gully by filling the street with earth, with so insufficient a passage way beneath for water that it became entirely closed. The pond alone was not the cause of the death of Edgar. This sidewalk, owned by the city, had been floating in the pond for about two years according to some of the witnesses, and was within the street whenever the wind blew from the east. If the jury found that this raft in the water was dangerous for children of tender years to ride upon and that its presence within the street upon the pond was attractive to children of tender years and that they would be likely to be induced by their childish instincts to climb and play thereon, and that Edgar was such a child and was so allured and lost his life by reason of such dangers, and that the city had due notice of the presence of the sidewalk in the pond or, by the lapse of time during which it had been there, should have known thereof, then it would seem that a verdict against the city should stand. The serious question is whether the hidden danger to Emil, which caused Edgar to leave the raft, was a new and intervening cause which protects the city from liability. In our former opinion we held that “the existence of this sudden emergency was one of the events which were liable to happen and to produce disaster to a child of tender years, and the court could not say as a matter of law that the facts above stated did not tend to make a case for plaintiff.” We are still of that opinion; and the court below was required to try the case the second time in accordance with the views of the law applicable thereto which we then expressed, and has performed that duty.

The judgment is therefore affirmed.

'Affirmed.


author: Mr. Presiding Justice Willis

text:
    Peter M. Kessler, Appellee, v. William E. Washburn, Appellant.
    Gen. No. 5322.
    1. Contributory negligence—persons in peril. Persons in positions of great peril are not required to exercise all the presence of mind and care of a prudent and careful man. The law makes allowance for them and leaves the circumstances of their conduct to the jury.
    2. Contributory negligence—person injured by automobile. If a person injured by an automobile has due notice of its approach, he is not necessarily guilty of contributory negligence in failing to avoid a collision with it, as he has a right to assume that it will approach at a lawful rate of speed and he may calculate upon passing in front of it upon that assumption.
    3. Negligence—what does not ewempt operator of automobile from liability. No owner or operator of an automobile is necessarily exempt from liability for collision in a public street by merely showing that at the time of the accident he did not run at a rate of speed exceeding the limit allowed by the law or the ordinance; on the contrary, he still remains bound to anticipate that he may meet persons at any point in the public street, and he must keep a proper lookout for them and keep his machine under such control as will enable him to avoid a collision with another person, using proper care and caution; and if necessary, he must slow up, and even stop. No blowing of a horn or of a whistle or ringing of a bell or gong, without an attempt to slacken the speed, is sufficient, if the circumstances at a given point demand that the speed be slackened or the machine be stopped, and such a course is reasonbly practicable. The true test is, that he must use all the care and caution which an ordinarily prudent and careful driver would have exercised under the same circumstances.
    4. Instructions—approved form upon right of recovery where vn

      jury caused by automobile. An instruction upon this subject substantially in the language of the statute is approved:
    “You are further instructed that in an action brought to recover damages, either to the person or property, caused by running an automobile, propelled by mechanical power, along a public street, through a closely built up business portion of a city, at a greater rate of speed than ten miles an hour, the plaintiff is deemed to have made out a prima facie case by showing the fact that he or she has been injured by said automobile, and that the person running such automobile was, at the time of the injury, running the same at a rate of speed greater than the law permits.”
    5. Instructions—when refusal of correct will not reverse. The refusal of a correst instruction will not reverse if its contents are substantially contained in another instruction given.
    Action in case for personal injuries. Appeal from the Circuit Court of Henry county; the Hon. Emery C. Graves, Judge, presiding. Heard in this court at the October term', 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Nicholas J. Demebath and Sturtz & Ewan, for appellant.
    James H. Andrews and Thomas J. Welch, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

This was an action on the case brought by Peter M. Kessler against William E. Washburn to recover damages for personal injuries sustained by his being struck by an automobile driven by Washburn. The original declaration contained three counts. Each count charged that on December 7, 1907, Washburn was driving an automobile along a street which passed through a closely built up business portion of the city of Kewanee, at a greater rate of speed than one mile in six minutes, without giving' warning of any kind, contrary to the statute, • and that through the negligence of Washburn the automobile struck Kessler and injured him while he was in the exercise of due care for his own safety. Later, two additional counts were filed. The first charged Washburn with negligence in operating the automobile. The second based the cause of action on the provision of paragraph (C) section 10, “Motor Vehicle Act” (Laws of 1907), and alleged that Washburn drove said automobile negligently and carelessly against Kessler while he was using due care for his own safety, without any signal or warning, at a higher" rate of speed than was prudent under the circumstances, and inflicted the injury complained of. A plea of not guilty was interposed. The cause has been tried by three juries. Upon the first trial the verdict was “Hot guilty.” The second resulted in a verdict for Kessler for $200. These verdicts were set aside and the third trial resulted in a verdict for $600 for Kessler, upon which a judgment was entered, from which Washburn prosecuted this appeal.

Main street in the city of Kewanee is paved with brick and used extensively for travel. It extends north and south, and is intersected at nearly right angles by the tracks of the Chicago, Burlington and Quincy Railroad Company. A little after six o’clock on the evening of the day of the accident, appellee and William Hemple walked south along the east side of Main street until they reached a point opposite the head of Willard street, which leads to the main business portion of the city, and then started westerly across Main street toward Willard street. A little before appellee and Hemple reached the south side switch track, appellant’s automobile, which he was driving, turned from Third street into Main street about a block south of the said south switch track, and ran north on the east side of Main street, and, near the south rail, struck appellee and inflicted upon-him the injuries sought to be redressed in this suit.

Appellant does not deny that his automobile struck appellee and injured his person, but insists that appellee was not injured to the extent he claims, and that appellee was not in the exercise of due care for his own safety at the time he was injured; in other words, that he was guilty of negligence which contributed to his injury, and therefore cannot recover. Appellant testified that appellee came suddenly from behind some poles and posts upon the approach of the automobile and then ran or jumped back in front of the automobile. The evidence shows that appellee and Hemple came up Main street and started across Main street to Willard street in plain view of persons coming from the south, and were from twelve to eighteen feet from the curb when the accident occurred, outside the usual path used by drivers of teams and automobiles, and were passing along at an ordinary walk. Appellee testified that he was not warned of the approach of the automobile until there came a flash of light in his eyes. He also testified that his hearing and sight were not defective, but that he neither saw nor knew of the approach of the automobile until it was too late to get out of the way. Hemple experienced difficulty in getting out of the way of the automobile, and both appellee and Hemple testified that they jumped as soon as possible after notice of its approach. Appellant testified that he blew a horn and immediately both jumped; that appellee jumped back when he was within fifteen feet of him; that prior to that time appellant had applied a brake to slow down the machine and immediately applied another brake so that the rear wheels were locked tight; that after the application of the second brake, the automobile was moving at the rate of only three or four miles an hour. -It slid on a dry surface of brick and plank about half its length after the second brake was set, and struck appellee with a force that “turned him over,” and Hemple said that it threw appellee eighteen feet and that he lay as if he were senseless and bled from his mouth. Had the automobile been moving at the rate of only three or four miles an hour or even at the rate of ten miles an hour, as permitted under proper circumstances by the statute, it seems improbable that it would have slid upon dry brick and plank the distance appellant admitted it did, or would have struck appellee with sufficient force to throw him any distance or injure him to the extent appellant admits that he was injured. Pat Welch, the gateman at the O., B. & Q. crossing, who had been in the service of the railroad company forty-six years, and who was in a tower overlooking the situation, testified for appellee that, in his opinion, the machine was going about twenty miles an hour. Earnest Harlow testified that appellant was going eighteen miles an hour after turning from Third street. Christ Ceding testified that appellant was going about fifteen or eighteen miles an hour. Welch, Harlow, Ceding, Hemple and appellee testified that they did not hear the horn. For appellant, Hartin Hunson, who occupied an office with him, and who was riding in the automobile, testified that it was going four or five miles when fifty or sixty feet from appellee, and that appellant sounded the horn. Fred Hiller, who was on Hain street, testified that he had his attention attracted by the sounding of an automobile horn, and that, in his judgment, the automobile was running five or six miles an hour. Harry E. Tidrick, who was near the railroad track, testified he heard the horn several times, and that the automobile was running five or six miles an hour when he first saw it.

It is clear from the evidence that appellee was called upon to act instantly, when, as he says, the flash of the light from the automobile was in his eyes. Having suddenly found himself in a place of peril, he could not he expected to act with the deliberate judgment of a man under no apprehension of danger. Persons in positions of great peril are not required to exercise all the presence of mind and care of a prudent and careful man; the law makes allowance for them and leaves the circumstances of their conduct to the jury. Galena & Chicago Union R. R. Co. v. Yarwood, 17 Ill. 509; Dunham Towing & Wrecking Co. v. Dandelin, 143 Ill. 409; Chicago & Alton Ry. Co. v. O’Leary, 126 Ill. App. 311. Appellee’s conduct is to be judged with reference to the stress of appearances at the time, and not by the cool estimate of the actual danger formed by outsiders after the event. If appellee had notice of the approach of the automobile 125 feet away as appellant claims, this did not necessarily make him guilty of contributory negligence in not avoiding a collision with it, as he had a right to assume that it would approach at a lawful rate of speed and to calculate upon passing in front of it on that assumption. If he made an error of judgment, this would not conclude him on the question of reasonable care, if the automobile was approaching him at an unlawful rate of speed.

jESTo owner or operator of an automobile is necessarily exempt' from liability for collision in a public street by simply showing that at the time of the accident he did not run at a rate of speed exceeding the limit allowed by the law or the ordinances. On the contrary, he still remains bound to anticipate that he may meet persons at any point in the public street and he must keep a proper lookout for them and keep his machine under such control as will enable him to avoid a collision with another person, using proper care and caution; and if necessary, he must slow up and even stop, bio blowing of a horn or of a whistle or ringing of a bell or gong, without an attempt to slacken the speed, is sufficient, if the circumstances at a given point demand that the speed be slackened or the machine be stopped, and such a course is reasonably practicable. The true test is, that he must use all the care and caution which an ordinarily careful and prudent driver would have exercised under the same circumstances.

Appellant stated that he had been over that crossing many times, and knew the existing conditions. He knew that the crossing was used at the time of day he struck appellee, by a large number of people going and coming to and from their homes on the north side of town, and the evidence shows a number of persons were there at the time of the collision. Clearly, it cannot be said that the facts in this record. are such that reasonable men of fair intelligence might not draw different conclusions therefrom, first on the ground of appellant’s negligence, and second, as to appellee’s contributory negligence. Therefore, there was no error in denying appellant’s motion to direct a verdict of not guilty. Two juries have found that appellee was injured through negligence of appellant, and that appellee’s negligence did not contribute to the injury, and the judge who presided at the last trial has approved this verdict, and we think the evidence fully sustains the judgment.

Instructions 2, 3, 4, 5, 6, 8, 11, given for appellee, arc objected to and the Iefusal of instructions 21 and 31 requested by appellant, is criticized. When carefully read with appellant’s instructions on. the same subject, appellee’s 2d, 3d, 4th, 5th, 6th, and 11th instructions are not subject to appellant’s objection. Appellee’s 8th instruction was in the following language:

“You are further instructed that in an action brought to recover damages, either to the person or property, caused by running an automobile, propelled by mechanical power, along a public street, through a closely built up business portion of a city, at a greater rate of speed than ten miles an hour, the plaintiff is deemed to have made out a prima facie case by showing the fact that he or she has been injured by said automobile, and that the person running such automobile "was, at the time of the injury, running the same at a rate of speed greater than the law permits.”

This instruction is in substance in the language of the statute in force at the time of the accident. The Supreme Court in many cases has held that no error is committed by giving an instruction substantially in the language of the statute; that the instruction must be regarded as sufficient when it lays down a rule in the words of the law itself. Ward v. Meredith, 220 Ill. 66, and cases there cited. The instruction would have been more nearly correct, if, instead of saying that plaintiff had made out a prima facie case, it had said, a prima facie case of negligence of the defendant. Hartje v. Moxley, 235 Ill. 164. Appellee was still left to show that such negligence was the proximate cause of the injury and that he was not guilty of contributory negligence. This instruction did not direct a verdict, and many other instructions informed the jury that in order for appellee to recover, the negligence of appellant must have been the proximate cause of his injury, and that he must have been free from negligence contributing thereto.

Appellant’s 31st refused instruction was on the same subject as appellee’s 8th, but it stated that if the jury believe from the evidence that appellant, at the time in question, drove his automobile at a prohibited rate of speed, still that fact makes a prima facie case only, and before appellee can recover, he must further prove by a preponderance of the evidence that such negligence of the defendant was the proximate cause of the injury, and that the plaintiff was not guilty of contributory negligence. Appellant’s 13th given instruction told the jury that if they believed from the evi-‘ dence that on the occasion in question, appellant was running his automobile at a rate of speed in excess of one mile in six minutes, the plaintiff was not absolved from exercising ordinary care and caution; and if they further believed, from the evidence, that the excessive rate of speed in this case was not the proximate cause of the injury, but that such injury was caused by the neglect of the plaintiff to exercise ordinary care and caution, then they should find for the defendant, as to such counts as charge 'the excessive rate of speed as the negligence complained of. Instruction Ho. 15 requested by appellant also told the jury that “although the law presumes that where an automobile is being run at a rate of speed in excess of that allowed by law and a person is struck and injured by the automobile, that the injury is the result of the negligence on the part of the owner or driver of the same, yet such presumption is not conclusive and may be rebutted by the evidence; and in this case, if yon believe, from the evidence, that the injury in question was not caused by reason of the automobile being run at a rate of speed in excess of one mile in six minutes, but that it was caused by negligence of the plaintiff, then you are instructed that the plaintiff cannot recover upon that ground alone, that the automobile was running at a greater rate of speed than one mile in six minutes.” Appellant’s 13th and 15th given instructions contained all that was proper in the 31st refused, and supplemented appellee’s given instruction eight. From a careful reading of the instructions we are of the opinion that no harmful error was committed in ruling on the instructions.

Finding no reversible error in the record, the judgment of the lower court is affirmed.

Affirmed.


text:
    Thomas B. Kendrick, Appellee, v. Fred O. Wendel, Appellant.
    Gen. No. 5274.

      Mandamus—when appeal from order granting peremptory writ dismissed. Courts in exercising their jurisdiction in mandamus will not award the peremptory writ where the right sought to be enforced is or has become a mere abstract right, the enforcement of which by reason of some change of circumstances since the commencement of the suit can be of no substantial or practical benefit to the petitioner.
    Mandamus. Appeal from the Circuit Court of La Salle county; the Hon. Edgab Eldbedge, Judge, presiding. Heard in this court at the April term, 1910.
    Dismissed.
    Opinion filed October 18, 1910.
    Butters & Armstrong, for appellant.
    McDougall & Chapman, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

At a city election held in the city of Ottawa, LaSalle county, on April 20, 1909, at which candidates for various city offices were voted for, Thomas B. Kendrick, appellee, and one Fred J. Halloway, were voted for for city treasurer. By mistake the election officers of the sixth ward placed the poll books, tally sheets and returns in the sack with the ballots. When the city council met to canvass the returns of the election, they did not find the returns from the sixth ward. It was considered that the returns from this ward would elect Kendrick and without them Halloway was elected. The city council requested the city clerk to attend the meeting, open the sack, and take out the poll books, tally sheets and returns, which he refused to do. Thereupon, Kendrick filed a petition for a writ of mandamus to compel the clerk so to act. A demurrer to the petition was overruled, and respondent ruled to answer said petition instanter. The clerk elected to abide by the demurrer. A peremptory writ of mandamus was ordered, commanding the cleric to appear on the evening of April 30, 1909, before, the council, and to take with him a certain sack in his possession as city clerk, containing certain poll books, statements and tallies delivered to him by the judges of the certain election held in the sixth ward on April 20, 1909, and in the presence of said city council, to open said sack and deliver to said city council certain poll books, statements and tallies therein; and that he should then tie and seal said sack and retain possession of the same for the time and in the manner provided by the statute. Judgment was entered for costs against the petitioner and the clerk prayed an appeal, which was granted. The writ was issued and served, and, afterwards, the clerk filed a bond which was approved, and has since filed the record in this court seeking to review the action of the lower court.

The order or judgment only authorized a writ commanding that a certain thing be done on April 30, 1909. When the record was filed in this court, more than five months had elapsed since April 30, 19"09. The order was not obeyed on April 30, 1909, and if we' should affirm it, it is not in the power of the court to enforce the judgment, that is, to compel the clerk to produce the documents described, before the city council on April 30, 1909.

“It is a well recognized principle that courts in exercising their jurisdiction in mandamus will not award the peremptory writ where the right sought to be enforced is or has become a mere abstract right, the enforcement of which by reason of some change of circumstances since the commencement of the suit can be of no substantial or practical benefit to the petitioner.” People v. Rose, 81 Ill. App. 387; Christman v. Peck, 90 Ill. 150; Gormley v. Day, 114 Ill. 185; North v. Trustees of University of Illinois, 137 Ill. 296; People v. Olsen, 215 Ill. 620. This subject is discussed and further authorities are cited in People ex rel. v. Kay, 154 Ill. App. 233.

The appeal is therefore dismissed.

Appeal dismissed,


text:
    The People of the State of Illinois, Defendant in Error, v. William A. Rowe, Plaintiff in Error.
    Gen. No. 5310.
    Lab cent—character of offense and manner of prosecution. Larceny, without regard to the value” of the property stolen, is an infamous crime, subjecting one convicted of the offense to the deprivation of his civil rights, and can be prosecuted only upon an indictment by a grand jury.
    Proceeding by information. Error to the County Court of Marshall county; the Hon. D. H. Gregg, Judge, presiding. Heard in this court at the April term, 1910.
    Reversed.
    Opinion filed October 18, 1910.
    Barnes & Magoon, for plaintiff in error.
    W. H. Stead, June C. Smith and Henry E. Jacobs, for defendant in error.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

On April 14, 1909, the state’s attorney of Marshall county filed an information in the County Court of said county, charging William A. Rowe with the larceny of one wooden park bench of the value of two dollars, the property of the city of Henry. There was a trial and a verdict of the jury finding Rowe guilty and the value of the bench to be two dollars. He was sentenced to imprisonment in the Marshall county jail for the period of one day, and to pay a fine of twenty dollars and costs and to stand committed until the fine and costs were paid, and this writ of error was sued out to review the judgment of the court below.

Defendant in error’s proof showed that plaintiff in error is a man between sixty and seventy years of age and lives in the city of Henry opposite the park from which he took the bench. It also showed that he carried the bench in daylight on a Sunday, with various persons in the vicinity, from the park to an alley between his house and that of the complaining witness, and first placed it in his yard, then on the alley fence, and finally in the alley next to the fence of the prosecuting witness. From the people’s evidence, it is doubtful, notwithstanding the fact that plaintiff in error did not testify in his own behalf, whether he had any intention of stealing it. Plaintiff in error offered no proof.

In People v. Russell, 245 Ill. 268, it is held that larceny, without regard to the value of the property stolen, is an infamous crime, subjecting one convicted of the offense to the deprivation of his civil rights, and can be prosecuted only upon an indictment by a grand jury. Aside from all other questions in the case, this decision requires the reversal of the judgment.

The judgment of the County Court is therefore reversed.

Reversed.


text:
    Albert E. Ziehme, Appellant, v. W. F. Metz, Appellee.
    Gen. No. 5316.
    1. Contracts—when for merchandise cannot he canceled. A contract for the sale and delivery of merchandise being completed, a vendee has no right of cancellation.
    2. Instructions—upon what theory cause may he submitted. A party has a right not only to tender his own theory of the cause, but likewise, without waiving his own theory, to tender instructions to meet the theory of the opposite party.
    3. Appeals and errors—when cross errors essential. In order to • obtain a review of rulings adverse to the prevailing party, cross errors must be assigned.
    Assumpsit. Appeal from the Circuit Court of Bureau county; the Hon. R, M. Skinner, Judge, presiding. Heard in this court at the April term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    McDougall, Chapman & Bayne, for appellant.
    Jay L. Spaulding, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

Albert E. Ziehme is a wholesale dealer in jewelry at St. Louis, Missouri. W. F. Metz is a retail merchant in DuPue, Illinois. On July 15, 1908, J. H. Brown, agent for Ziehme, called on Metz at DuPue and sold him a hill of goods amounting to $198, Metz, at the time, giving Brown his written order addressed to Ziehme for such goods. The order contained a list of the goods contracted for and the prices, also a show case. The order provided that a discount of six per cent would be made for cash in ten days or settlement might be made in six equal installments, due in two, four, six, eight, ten and twelve months from date of invoice, providing purchaser sent, on the arrival of the goods at their destination, six acceptances covering the above payments. If settlement was not made as above provided the account was to be due and payable in cash. The order was received by Ziehme on July 16, and on that day its receipt was acknowledged and Metz informed by letter duly stamped and addressed that the goods would be shipped. On July 1Y, Ziehme shipped the show case to Metz by freight and Ziehme claims that on the same date the balance of the goods was shipped to Metz by express. Metz claims that the goods, with the exception of the show case, were not shipped until the 18th. On July 16, Metz wrote a letter to appellant countermanding the order, dated it the 15th, but did not mail it until the lY'th, and it was not received by Ziehme until the 18th. Metz shipped back the goods that came by express, paying the express charges both ways, but did not return the show case. Ziehme refused to take back the goods and demanded payment therefor and on Metz’s refusal to pay, brought this suit in assumpsit to recover the contract price for the goods with interest thereon, and filed a declaration containing the common counts and a special count on the order. Metz filed a plea of non assumpsit to which was attached an affidavit of merits to the whole of said cause of action on the ground that the order had been countermanded. A trial resulted in a verdict finding the issues for Metz, A motion for a new trial was denied. Judgment was entered on the verdict and for costs against Ziehme and he prosecutes this appeal.

On the trial, over the objections of appellant, appellee was permitted to answer that he did not owe appellant anything. This error the court later attempted to cure by an instruction. Whether the cure was effective or not, is, from the view we take of the case, immaterial.

When appellant wrote and mailed the letter of July 16, he unquestionably bound himself to the acceptance of the order. Then the contract was completed. Bauman v. McManus, 10 L.R.A.(N.S.) 1138. Mo subsequent countermand could be effective and no earlier one is disclosed by the record, and it was not necessary that appellant should have shipped the goods before he received the countermand, as urged by appellee, in order to render him liable. Therefore it is unnecessary to consider the evidence relating to the question whether or not the goods were actually shipped by appellant before he received appellee’s letter mailed the 17th, countermanding the order. It follows, therefore, that the judgment is not sustained by the law and the evidence.

Appellee, however, urges that appellant, by his instructions, conceded that it was necessary that he should have shipped the goods before he received the countermand in order to render appellee liable. Appellant’s third instruction did tell the jury if appellant had shipped the goods before he received a countermand, they should find for him. But appellant requested, and the court gave, another instruction to the effect that if 'appellant had accepted the written order before the countermand, and afterwards shipped the goods, then the jury should find for him. It was the contention of appellant that he not only accepted the order but that he also shipped the goods before he received the countermand. He had the right to have his case submitted to the jury upon both propositions.

We do not think it can be said, as urged by appellee, that counsel for appellant in his argument in this court entirely abandoned the theory upon which he tried the cause in the lower court and has here adopted an entirely new theory by urging that the order in suit became irrevocable and not subject to a countermand as soon as the letter of the 16th, accepting the terms of the order, was written and mailed. But, however that may be, we cannot, as urged by appellee, disregard counsel’s argument and the authorities cited in support of this contention that the judgment is not supported by the law.

Fairbanks Co. v. Nicolai, 167 Ill. 242, relied on by appellee, was a suit for damages for depreciation in value of real estate occasioned by a nuisance, and the defendant in that case agreed with the plaintiff as to the measure of damages, and several instructions on the agreed measure of damages were given, and the court, on appeal, held that the defendant could not be permitted to abandon the theory to which it had assented on the trial and substitute another. There was no agreement between the parties to this suit as to the law, and we fail to preceive the application of the Fairbanks case to the case at bar.

Appellee sought to prove that he countermanded the order through Brown, appellant’s agent, -about thirty minutes after it was given, and that the agent agreed to consider the order as cancelled, but this proof was not admitted. No cross errors were assigned on the refusal of the court to admit this proof, and therefore we are not authorized to decide whether the order could be so countermanded or was so countermanded.

The judgment is therefore reversed and the cause is remanded.

Reversed and remanded.


text:
    The People of the State of Illinois, Plaintiffs in Error, v. George M. Jamison et al., Defendants in Error.
    Gen. No. 5319.
    1. Pleading—what m action upon official land not defective. In an action upon a sheriff’s bond it is not necessary that the declaration should aver for whose use the suit is brought.

      2. Pleading—what question cannot be raised by demurrer. The propriety of the prosecution of an action upon a sheriff’s bond by a state’s attorney is a question which cannot be raised by demurrer.
    3. Pleading—how assignments of breaches of official bond should be alleged. Assignments of breaches of an official bond should be specific and definite and the allegations of breaches are to be construed most strongly against the pleader.
    4. State’s attorney—propriety of institution by, of action upon official bond. The state’s attorney is a proper official to institute an action upon a sheriff’s bond to recover taxes alleged to be the property of various municipal corporations.
    5. Judgments—when void for uncertainty. A judgment which decrees that certain defendants (less than all) “go hence without day” is void for uncertainty, if it does not specifically set forth what defendants are intended. Such a judgment record cannot be aided by reference to other parts of the record in the cause.
    6. Amendments and jeofails—dismissal of party defendant. The court having control of a cause should permit the plaintiff on his own motion to dismiss one of the defendants out of the cause.
    Action in debt. Error to the Circuit Court of Henderson county; the Hon. John A. Gray, Judge, presiding. Heard in this court at the April term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    W. H. Stead and James W. Gordon, for plaintiff in error; Isaac-E". Bassett and L. H. Hanna, of counsel.
    Safford & Graham and Scofield & Califf, for defendants in error.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

This is an action in debt brought on the official bond of Truman 0. Allen, sheriff and ex-officio collector of Henderson county, to recover certain tax moneys claimed to have been received by Allen from Joseph P. Morey, his predecessor in office, and converted by Allen to his own use. • An amended declaration filed March 2, 1908, alleged that the bond sued on was executed in compliance with the statute as the collector’s bond for Henderson county for the year 1902, by Truman O. Allen as principal, and Eobert Hodson, George M. Jamison, Henry U. Ives, George F. Galbraith, Thomas Haley, C. Henry Brainard, Joseph Thompson, John Stine, John Marshall, Robert W. Marshall, James C. Hogue and William Adair, as sureties; and that after its execution, the said Joseph Thompson died intestate, and that Mary Thompson and G. M. McGaw were appointed administrators of his estate, and that the said John Stine died testate and that Edward Stine was appointed executor of his estate. The declaration stated the penalty in the bond, and that it contained the condition that, if said Allen should perform the duties required to be performed by him as collector of taxes for the year 1902, in time and manner prescribed by law, and, when succeeded in office, should surrender and deliver up to his successor, books, papers, money, etc., pertaining to the office, the bond should be void, otherwise it should remain in full force. Three breaches of the condition of the bond were assigned. The first breach averred that Allen, after the execution of said bond, received as collector of taxes, money collected for taxes in said county; and that he afterwards converted the same to his own use; that he did not perform all the duties required to be performed by him as collector of taxes for the year 1902, in time and manner prescribed by law, and did not when succeeded in office surrender and deliver over to his successor all the money' pertaining to the office. The second and third breaches were substantially alike, and alleged, that prior to the first Monday of December, 1902, one Joseph P. Morey was acting as sheriff and collector of taxes for the county of Henderson, and that Allen was elected and became his successor in office, and^that, thereafter, Morey delivered to said Allen as such sheriff and collector, $15,892, collected by said Morey for taxes in said county; that Allen, as such sheriff and collector, received said money from Morey as his successor.in office; that said Allen afterwards unlawfully converted to his own use $10,-000 of said amount, and "did not when succeeded in office, deliver to his successor all moneys pertaining to said office according to the condition of the bond.

The defendants, George M. Jamison, Robert Hodson, Henry B. Ives, George F. Galbraith, 0. Henry Brainard, Edward Stine, John Marshall, Robert W.'Marshall, James 0. Hogue and William Adair demurred to the declaration. The remaining „ defendants, Truman 0. Allen, the principal, Thomas Maley, one of the sureties, and the personal representatives of Joseph Thompson, a deceased surety, did not join in the demurrer, and no action was taken by the court as to these defendants. The demurrer was overruled as to the first breach, and sustained as to the second and third breaches. Plaintiff-then dismissed the cause as to the first breach, and elected to abide by the declaration as to the second and third breaches. Thereupon, there was a judgment that the defendants demurring go hence without day. From such judgment plaintiff prosecuted an appeal to this court, which was dismissed on the ground that it was prematurely brought, as the case was still pending in the court below against the defendants not joining in the demurrer, and therefore the judgment was not final. People v. Jamison, 141 Ill. App. 406. The order of this court dismissing the appeal was filed in the court below, whereupon plaintiff dismissed from the cause defendants G. M. McGaw and Mary Thompson, administrators of the estate of Joseph Thompson, deceased, and Truman 0. Allen and Thomas Maley, hut was denied leave to dismiss the cause as to John Stine, executor of the estate of Edward Stine, deceased, leaving in the case only the defendants who demurred to the amended declaration on March 2, 1908. This writ of error was sued out to review the judgment.

It is urged in support of the demurrer that the declaration is defective because it does not show for whose use the suit was brought. This is virtually taking the position that it was necessary to bring as many suits as there were bodies entitled to receive some portion of the taxes remaining in Allen’s hands when he went out of office. The fact that one person sues for the use of another does not make the person for whose use the suit is brought a party to it, nor is the judgment rendered a judgment in his favor. Schott v. Youree, 142 Ill. 233; Northrop v. McGee, 20 Ill. App. 108. The fact that a suit is brought for the use of a third person need not be expressed in the record. American Express Company v. Haggard, 37 Ill. 465. It follows that the insertion of the name of the usee may be regarded as surplusage, at least on demurrer. Northrop v. McGee, supra. In Buckmaster v. Beames, 4 Gilm. 443, a suit upon a replevin bond, it was held that the nominal plaintiff was the only one of whom the court would take notice; and that the fact that one of several parties interested had brought suit in the name of the sheriff, could not be questioned by a demurrer. In our opinion it was not necessary that the declaration should aver for whose use the suit was brought.

Counsel also argue in support of the demurrer, that the statute does not authorize the state’s attorney to bring such a suit as state’s attorney; that as state’s attorney he is not the lawful representative of the cities, villages and school districts of the county. This was an action to recover a penalty for the breach of the condition of the bond, running in the name of the People, and we think that the state’s attorney was authorized by section 5, chapter 14 of the Revised Statutes to prosecute the suit, and was, for that purpose, the legal representative of the municipal corporations entitled to the tax money. But this question could not be raised by demurrer.

Counsel also argue that the declaration does not show a state of facts authorizing Morey to pay the taxes to Allen and that Allen’s sureties are not liable; that the declaration wholly fails to set forth facts from which it would appear that the moneys alleged to have been converted were taxes collected or received by virtue of any law. It was the duty of Morey, Allen’s predecessor, to pay over to his successor, at the expiration of his term, all money in his hands, collected by him by virtue of his office; and it was Allen’s duty to receive such money as collector, and turn over what remained in his hands to his successor at the expiration of his term. Hurd’s Revised Statutes, sec. 145, chap. 120. The declaration averred, and the demurrer admitted, that Allen, as collector, received the money by virtue of his office from his predecessor, Morey, who collected the same as taxes, by virtue of his office; and that Allen failed to turn over to his successor the money in his hands at the expiration of his term. These allegations are sufficient .to charge the sureties so far as the allegations are questioned by the special demurrers. People v. Gillespie, 47 Ill. App. 522; People v. Cooper, 10 Ill. App. 384. It was held in Walker v. People, 95 Ill. App. 637, that county collectors and sureties on their bonds are liable for all tax money collected, until the same is properly accounted for as provided for by the Revenue Act. In People v. Gillespie, supra, it was held that neither a collector nor his sureties can be heard to say that the levy was improperly made, or that the tax was collected without proper authority. It was not necessary to aver that the taxes were collected and received by virtue of law.

It is argued that plaintiff in error is seeking to maintain an action against an intermediate number of obligors and for that reason the judgment should be affirmed under section 13 of chapter 103 of the Revised Statutes. A suit on an official bond may be maintained against any one or more of the parties executing the same; so that the dismissal of some of the signers of the bond from -the suit does not deprive the court of jurisdiction over the other signers, and the common law rule that a suit on a bond signed by several must be against one or all who are living does not apply.

There are one and perhaps two defects in this declaration not raised by the special demurrer nor discussed by counsel. The second and third breaches in question here charge that Morey, the preceding sheriff and collector of taxes, paid over to Allen as his successor $15,892 which Morey had previously collected for taxes, and that Allen received said money by virtue of his office and afterwards unlawfully converted it to his own use. It does not follow that he did not afterwards pay said money to those who were lawfully entitled to receive the same, for these breaches only allege in general terms that when he was succeeded in office he did not deliver to his successor all money appertaining to said office but refused so to do. These assignments are to be considered most strongly against the pleader and they do not allege that the money which he failed to deliver to his successor was any part of the $10,000 in question. For aught that appears in these breaches Allen may have afterwards paid out to the proper parties all of this $10,000,, and the money which he failed to deliver to his successor may have been entirely other and different money from that named in the previous part of the assignment of breaches. We are of opinion this assignment should be more specific.

There is however another defect in this declaration which has given us much trouble. The suit is brought not only against those signers of the bond who were still living when the suit was brought but also against Edward Stine, as executor of the will of John Stine, a deceased signer, and against the administrators of the estate of Joseph Thompson, another deceased signer, and such was the state of the case when this demurrer was sustained. All these parties were liable upon this bond if its condition had been violated but they could not be lawfully joined in the same action because the judgments must be different if the plaintiff succeeded. As to the living signers the judgment would be for a specific sum of money as damages to be collected upon an execution against the living defendants. As to the executor of Stine the judgment must be that the sum found due as damages be paid by the executor in due course of administration of the estate of John Stine; that is, paid after all claims of earlier classes of debts are paid in full, and pro rata with all other claims allowed of the same class. As to the administrators of the estate of Joseph Thompson, deceased, the judgment must be for the payment of the damages out of the assets of that estate, in like due course of administration. To dispose of all the rights of the plaintiff, if it is entitled to recover on this bond would require three different judgments. These cannot be rendered in one action. This defect can be raised on demurrer. The demurrer was special and did not point out this defect. We do not feel called upon to decide whether it was raised by the general demurrer which preceded the special grounds of demurrer, for the reasons hereinafter stated.

The judgment on demurrer here sought to be reviewed is void on its face. After the demurrer had been overruled as to the first breach assigned in the amended declaration and sustained as to the second and third breach assigned therein, and the plaintiff had dismissed the cause as to the first breach and elected to abide by the second and third breaches, the record proceeds as follows: “Therefore it is considered by the court that the defendants demurring go hence without day and judgment is hereby rendered in their favor on said demurrer.” This was a judgment for part and not for all of the defendants in the case. There is nothing in the record written by the clerk which shows which defendants demurred and which did not. If all the defendants had demurred then a judgment that the defendants go hence without day would have been valid because that would mean all the defendants, and the title of the case written by the clerk preceding the orders of each day would show who the defendants were. It appears from the order that it is only a part of the defendants who go hence without day. It is necessary that the defendants should be named, for a record must always show in whose favor a judgment is rendered. The name of the parties for whom and against whom the judgment is rendered must be ascertainable from the record of the court written by the clerk.

The rule that a judgment must be specific and definite and if it lacks these elements it is void is variously stated and applied in the following authorities: Martin v. Barnhardt, 39 Ill. 9; Faulk v. Kellums, 54 Ill. 188; Meyer v. Village of Teutopolis, 131 Ill. 552; Metzger v. Morley, 184 Ill. 81; Alton Lime & Cement Co. v. Calvey, 41 Ill. App. 597; Fitzsimmons v. Munch, 74 Ill. App. 259; Metzger v. Morley, 83 Ill. App. 113; Cotes v. Bennett, 84 Ill. App. 33, and 183 Ill. 82; Dickinson v. Rahn, 98 Ill. App. 245; 1 Black on Judgments, sec. 116.

It is true that by looking at the demurrer on file it can be ascertained who the demurring defendants were, but that is not sufficient. The record which the law authorizes the clerk to write must somewhere show in whose favor the judgment was rendered. The demurrer may be lost from the files, and if that should happen it would require oral proof to determine in whose favor this judgment is rendered, and which of the defendants were not released thereby. It is obvious that the judgment of the court cannot be permitted to rest upon parol evidence as to the names of the parties in whose favor the judgment is rendered. As this was a void judgment all the parties still remained before the court. As already stated the suit was afterwards dismissed as to the administrators of Thompson’s estate, and that defect was thereby cured. As the court still had in effect control of the entire case it should have granted the motion of plaintiff to dismiss the suit as to the executor of John Stine. It is obvious that the declaration also should be amended in regard to the matter of said estates. As the judgment is void and the defects to which we have alluded were not raised by the special demurrer, nor discussed by counsel, we are of the opinion that upon the reversal of the judgment the plaintiff should be given leave to dismiss as to the executor of John Stine and to amend the declaration generally.

The judgment is therefore reversed and the cause is remanded for further proceedings in conformity with its opinion.

Reversed and remanded.