text:
    M. B. Voorhees, Administrator, Plaintiff in Error, v. Chicago & Alton Railroad Company, Defendant in Error.
    1. Death, § 17

      —who is real party in interest in action for. Under the Injuries Act neither the administrator nor the estate of the decedent has any interest in or right to the benefit of any judgment that might be recovered for death, but the real party in interest is the next of kin as beneficiary.
    2. Judgment, § 480*—when in action for death of one person is conclusive in second action by same administrator for death of another person. Where the same person was the sole next of kin of the decedent and beneficiary in each of two actions brought under the Injuries Act by the same person acting as administrator of the estate of each of the decedents killed in the same accident, and under the same circumstances, held that a judgment in one action would be conclusive of every issue of fact tried therein upon the same issue in the other action. i,

      3. Pleading, § 32

      —what constitutes surplusage in declaration. A second count in a declaration in an action for death containing no averment of fact different from the first count is surplusage and should be stricken.
    4. Railboads, § 645*—what is effect of wilful negligence of railroad company. Where it is alleged in the declaration, in an action against a railroad company to recover damages for the death of a child under the Injuries Act, that the defendant ran its train with a wilful and reckless disregard of the lives of travelers on the highway, it is not necessary to a recovery to prove that the deceased or his mother, his custodian, was in the exercise of due care.
    5. Estoppel, § 16*—when 6y judgment applies. An estoppel by judgment does not depend upon technicalities but upon the broad principles of justice, and it can apply only when the party has had his day in court and an opportunity to establish his claim.
    Error to the Circuit Court of Jersey county; the Hon. Noeman • L. Jones, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed October 11, 1917.
    Rehearing denied December 1, 1917.
    Statement toy the Court. This is an action begun by M. B. Voorhees, administrator of the estate of Stuart Ryan, deceased, against the Chicago & Alton Railroad Company to recover damages resulting from the death of the deceased.
    The original declaration filed March 6,1914, contains three counts. Subsequently two additional counts were filed. Each of the counts avers that on July 20, 1913 the defendant was operating its railroad across a certain public highway in Jersey county and that Stuart Ryan, accompanied by his mother Mattie Ryan and his sister Lillian Ryan, while driving along said public highway in a westerly direction over said crossing in a buggy drawn by one horse, was killed by being struck by a passenger train of defendant and that the deceased left surviving him as his next of kin his father, Marcus J. Ryan, who has sustained damage thereby. Each of the first three counts avers that the deceased was in the exercise of due care for his own safety in passing over said crossing. The first count charges that the defendant ‘ ‘ so recklessly, carelessly and negligently managed” and operated its train, etc.; the second avers that the train was recklessly, carelessly and negligently run at a high rate of speed without either the ringing of a bell or the blowing of a whistle for the distance of 80 rods before reaching the crossing; and the third avers negligence in recklessly running the train at a high and dangerous rate of speed.
    The first additional count avers that the defendant ran its train with a wilful and reckless disregard for the lives and safety of persons lawfully passing along said highway, at a dangerous rate of speed, without ringing a bell or blowing a whistle, for 80 rods before reaching said crossing where the view of the highway was obstructed. The second additional count is similar to the first with the addition that it is averred that the view of deceased was obstructed by a large hedge growing along the south side of the highway, so that they were unable to see the team until they got upon the right of way and no effort was made to stop the train and no warning or signal .given.
    A special demurrer was sustained to the last count. The record states that ‘1 plaintiff elects to stand by his second amended count and thereupon the judgment of the court as to said second amended additional count is entered herein, ’ ’ but the record does not contain any judgment on said count.
    The defendant filed the general issues as to the first three counts and a verified special plea to them and to the first additional count.
    The special plea avers that plaintiff in this suit ought not to be admitted to allege that Stuart Ryan came to his death by reason of the negligence and the wilful and wanton conduct of defendant, and that in consequence of said death a cause of action has accrued to his administrator for the benefit of his next of kin, his father Marcus J. Ryan, because the aforesaid named plaintiff, as administrator of the estate of Mattie Ryan, deceased, did on March 2, 1914, under sections 1 and 2 of chapter 70 of the statutes, file a suit, to the March term 1914 of this court, for damages on account of the death of Mattie Ryan for the exclusive benefit of the said surviving next of kin, said Marcus J. Ryan, alleging that the said defendant so recklessly and negligently ran its certain train over said crossing so that the same was driven" against the deceased Mattie Ryan and her children, Lillian Ryan and Stuart Ryan, whilst said Mattie Ryan was crossing said railroad in the exercise of due care and caution for herself and of said Lillian Ryan and Stuart Ryan to the damage of plaintiff, for the benefit of the next of kin Marcus J. Ryan, husband of said Mattie Ryan and father of said Lillian Ryan and Stuart Ryan, which declaration is in words and figures following: (Here follows a copy of the declaration in the case of M. B. Voorhees, administrator of the estate of Mattie Ryan, against the Chicago & Alton Railroad, in which the averments of fact are similar to the averments in the first three counts of the declaration in the present case, except they aver the death of Mattie Ryan in place of Stuart Ryan, and state a case for damages on account of the death of Mattie Ryan, and it is alleged that Mattie Ryan was accompanied by her two children Lillian Ryan and Stuart Ryan. That declaration was filed March 6,1914.) Thé defendant further avers that it filed a plea of the general issue in that case, setting forth a copy of it, and that issue was joined on that plea; that a trial by jury was had in that cause at the March term, 1914, evidence offered and a verdict returned finding the defendant not guilty; that a motion was entered by the plaintiff for a new trial and that the same was overruled and judgment entered in favor of defendant in bar of that action, which judgment is a final judgment, is in full force and effect and has never been reversed or set aside; that said court had jurisdiction of the parties and the subject-matter and that this defendant was the sole and only defendant in said former suit, and that the present suit grows out of the alleged collision between a passenger train of defendant and a horse and buggy driven by Mattie Eyan in passing over a crossing, in which buggy were Lillian Eyan and Stuart Eyan, infant children of Mattie Eyan and Marcus J. Eyan, and that Mattie Eyan left surviving her as her sole next of kin-her Msband, Marcus J. Eyan, and that Stuart Eyan left surviving him as his sole next of kin his father, said Marcus J. Eyan; that in the former suit Marcus J. Eyan was the sole beneficiary and he is the sole beneficiary in this cáse; that Marcus J. Eyan was entitled to administer on each of said estates but waived his right in favor of M. B. Voorhees and was present in court, testified as a witness and in that case-advised with counsel, who are the same in the different suits; that Lillian Eyan and Stuart Eyan were of tender age, to wit, of 3 and 5 years respectively, and were under the care, control and custody of their mother, Mattie Eyan, in said buggy, while said Mattie Eyan was driving said horse over the crossing, which resulted in the death of said mother and children in said former suit; that the pretended negligence and wilful conduct, averred to have caused the death of Stuart Eyan in this suit, is the same pretended negligence and wilful conduct which caused the death of Mattie Eyan, while said Mattie Eyan was in the exercise of due care for her own safety and her children and no different negligence or conduct, and by reason of which in the former trial the jury found the issues against the plaintiff, and judgment was rendered thereon against the plaintiff, in said former suit against this defendant. It is further averred that the gravamen of the declaration in the former suit was that defendant was guilty of reckless and negligent conduct in the management of its train which caused the death of said mother and children, and that.said mother was in the exercise of due care for herself and children and that the verdict and judgment in that cause involved the determination of the matters in issue and are the same matters involved in this cause if a trial is had, all of which the defendant is ready to verify. Wherefore, it prays judgment, etc.
    The plaintiff filed a general demurrer to the special plea. The court overruled the demurrer and the plaintiff abiding by his demurrer the court entered judgment on the plea in favor of the defendant. From that judgment this appeal is prosecuted by the plaintiff.
    W. J. Chapman and D. J. Sullivan, for plaintiff in error.
    Winston, Payne, Strawn & Shaw, for defendant in error; Silas H. Strawn, Thomas F. Ferns, Charles J. McFadden and Leslie M. O’Connor, of counsel.

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

   Mr. Justice Thompson

delivered the opinion of the court.

The special plea to which a demurrer was overruled is a plea of estoppel by verdict. The declaration in the suit of Voorhees, administrator of the estate of Mattie Byan, is identical with the first three counts of the declaration in this case except as to the name of the deceased. The deceased in this case was a boy under the age of 6 years. “While an action by a child of tender years for damages for injuries occasioned by the defendant’s negligence is not defeated in Illinois, by the fact that the parent having the care of the child at the time was guilty of contributory negligence, yet, if the child is killed, the contributory negligence of the parent is a bar to a recovery by the administrator of the child under section 1 of the Injuries Act.” Ohnesorge v. Chicago City Ry. Co., 259 Ill. 424. Mattie Byan, the mother of Stuart Byan, and Stuart Byan were killed at the same time while riding together in a buggy drawn by a single horse that was being driven by Mattie Ryan. The plea sets up that the negligence in the present case was the same as in the former suit and that there was no different negligence or wanton conduct. Marcus J. Ryan, the husband of Mattie Ryan, is the father of Stuart Ryan. He is the only next of kin to his wife and their son. The Injuries Act permits an action to be maintained for the benefit of the next of kin to compensate them for the pecuniary loss sustained by the death of the deceased.

Under the Injuries Act neither the administrator nor the estate of the deceased has any interest in or right to the benefits of any judgment that might be recovered. The issues of the alleged negligence of the defendant and of ordinary care or contributory negligence of Mattie Ryan were submitted to and passed on by the jury in the case that was tried. The jury, in finding the defendant not guilty, found either that Mattie Ryan was not in the exercise of ordinary care or that the defendant was not guilty of negligence. Mattie Ryan, the mother, and Stuart Ryan, the child, having been killed together in the buggy, the facts bearing on the right of recovery in the respective suits are identical. Voorhees is the administrator in each of the estates. Marcus Ryan is the next of kin and sole beneficiary of each estate. He waived his right to administer in the several estates in favor of Voorhees and the same counsel were employed in the different suits.

Appellant cites Illinois Cent. R. Co. v. Slater, 139 Ill. 190, and argues that decision is conclusive of the question presented. The cases are readily distinguishable. In that case two brothers aged 10 and 1$ years had been killed in the same accident. Administration was taken out in each estate and suits were brought for the benefit of the next of kin. Recovery was had by the plaintiff in the suit first tried.' That was claimed by the defendant to be a bar to an action by the administrator of the other brother. If the judgment had been in favor of the defendant there would have been a similarity, but clearly a judgment in favor of one estate could not be a bar to a suit prosecuted by the other estate since there may not be a joint administration. '

“Whether the adjudication relied on as an estoppel goes to a single question or all the questions involved in a cause, the fundamental principle, upon which it is allowed in either case, is that justice and public policy alike demand that a matter, whether consisting of one or many questions, which has been solemnly adjudicated by a court of competent jurisdiction shall be deemed finally and conclusively settled in any subsequent litigation between the same parties, where the same question or questions arise. * *’ * It is sufficient for the purposes of the rule relating to a former adjudication, when relied on as an estoppel, that the parties be substantially the same.” (Hanna v. Read, 102 Ill. 596.) Voorhees, as administrator in the respective estates, was a necessary party but was only a formal party having no interest whatever. Marcus Ryan, the father and next of kin, was not a party to either suit but was the sole beneficiary in both suits and entitled to the entire net damages resulting from the accident or collision, and the law required that the declaration in each case aver that lie is the next of kin, although not a party. Marcus Ryan, being the sole beneficiary and under no disability, had the right to settle and to accept and receipt to defendant for any damages, if he was entitled to recover damages for the death of his wife and children, if the same had been caused by the negligence of defendant. Voorhees, as administrator in the several estates, was but the legal agent of the beneficiary, Marcus Ryan. (Mattoon Gas Light & Coke Co. v. Dolan, 105 Ill. App. 1.) It is not always necessary that the parties to a suit should be nominally the same in order that one recovery may bar another. Where a suit is prosecuted by one person for the use of another, the latter being the real party in interest, a judgment therein will bar a, second suit by the latter in his own name. (Black on Judgments, secs. 537-539; Galveston, H. & S. A. Ry. Co. v. Kutac, 72 Tex. 643,11 S. W. 127.)

A point which was directly in issue in a former suit and was there judicially passed upon cannot again be drawn in question in any future action between the ■same parties or their proxies, whether the cause of action, in the two suits be identical or different. (Black on Judgments, sec. 504.) Where the real party in interest has had a trial of his rights on the merits there should be an end to the litigation (Hanna v. Read, 102 Ill. 596; Union Pac. Ry. Co. v. United States, 67 Fed. 975; Tidwell v. Witherspoon, 21 Fla. 359), and the judgment in that suit is conclusive on every issue of fact tried therein.

It is also contended that the demurrer should have been overruled to the second additional count. This count contains no averment of fact different from the first additional count and should have been striéken as surplusage. The plaintiff was not injured by the sustaining of the demurrer and there was no reversible error in the ruling although judgment was not entered on the demurrer to that count.

The first additional count avers that the defendant ran its train with a wilful and reckless disregard of the lives of travelers on the highway. Under this allegation it was not necessary to a recovery that it should have been proved that the deceased or his custodian in charge of him was in the exercise of due care. Under this count an issue was raised that was not tried in the former suit. “The former verdict is conclusive only as to facts directly and distinctly put in issue, and the finding of which is necessary to uphold the judgment. The doctrine of estoppel is restricted to facts directly in issue and does not extend to facts which may be in controversy, but which rest in evidence and are merely collateral. ‘A fact or matter in issue is that upon which the plaintiff proceeds by his action, and which the defendant controverts in his pleadings, while collateral facts are such as are offered in evidence to establish the matters or facts in issue. It must appear that the matter set up as a bar was in issue in the former suit. ’ Freeman on Judgments, sec. 257; Black on Judgments, sec. 733. The allegation of wilfulness was not in issue in the former suit. Had it been, the averment of due care was surplusage and the verdict might have been for plaintiff.

An estoppel does not depend upon technicalities but the broad principles of justice, and it can apply only when the party has had Ids day in court and an opportunity to establish his claim. Black on Judgments, sec. 618. The court erred in overruling the demurrer to the special plea to the first additional count, but there was no error in overruling it to the pleas to the three counts of the original declaration. The judgment is reversed and the cause remanded for further proceedings in conformity with this opinion.

Reversed and remanded.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    M. B. Voorhees, Administrator, Plaintiff in Error, v. Chicago & Alton Railroad Company, Defendant in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of Jersey county; the Hon. Norman L. Jones, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed October 11, 1917.
    Rehearing denied December 1, 1917.
    Statement of the Case.
    Action by M. B. Voorhees, administrator of the estate of Lillian Byan, deceased, plaintiff, against the Chicago & Alton Bailroad Company, defendant, to recover damages for the death of plaintiff’s intestate. From a judgment for defendant, plaintiff brings error.
    Plaintiff’s intestate being a sister, three years old, of plaintiff’s intestate in the case of Voorhees v. Chicago & Alton R. Co., ante, p. 86, and killed in the same accident, the judgment was for reasons stated in the opinion in that case reversed.
    W. J. Chapman and D. J. Sullivan, for plaintiff in error.
    Winston, Payne, Strawn & Shaw, for defendant in error; Silas H. Strawn, Thomas F. Ferns, Charles J. McFadden and Leslie M. O’Connor, of counsel.
   Per Curiam.


author: Mr. Justice Thompson

text:
    Frank H. Newman et al., Executors, Appellants, v. Charles B. Newman, Appellee.
    1. Bills and notes—when date of note expressed governs. If the date and the time of delivery of a note differ, the construction in general follows the expressed date.
    2. Bills and notes—when terms of postdated note as to time of maturity control. Unless there is fraud in postdating a note, its express terms as to when it matures must control.
    3. Instructions, § 118

      —when instruction is erroneous as not in conformity with evidence. An instruction held erroneous in not including documentary evidence in the case as evidence to be considered with the other enumerated evidence.
    4. Instructions, § 87*—when instruction on degree of proof is erroneous. An instruction is erroneous which requires the jury to be “convinced” by the evidence that the defense has been proved.
    Appeal from the Circuit Court of Pike county; the Hon. Harry Higber Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed October 11, 1917.
    Rehearing denied December 1, 1917.
    L. T. Graham and Anderson & Matthews, for appellants.
    Williams & Williams and William. & Barry Mumford, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

A judgment hy confession against Charles B. Newman in favor of Frank H. Newman, F. Eva Conklin and Fred A. Stone, executors of the last will of Benjamin Newman, deceased, was entered in vacation in the office of the clerk of the Circuit Court of Pike county on May 31, 1916, for $4,081.88 on a promissory note for $2,500, with interest from date at 5 per cent, per annum with 10 per cent, attorney’s fees. The note is dated “October 5th, 1906” and was executed by C. B. Newman and is payable to the order of Benjamin Newman one day after date.

At the June term of the Circuit Court on the motion of C. B. Newman, the judgment was opened, and he was given leave to plead to the declaration. The defendant filed a plea of the statute of limitations, “that the supposed cause of action and promissory note in the said declaration mentioned did not accrue to the plaintiffs or to Benjamin Newman in his lifetime at any time within ten years before the commencement of this suit,” etc., and two pleas of release. The pleas of release were withdrawn. The record does not show that any replication was filed. The case was tried before a jury on the plea of the statute of limitations the same as if issue had been joined on it. The jury returned a verdict in favor of the defendant on which judgment was rendered. The plaintiffs appeal.

The defense is that the note was not executed on October 5,1906, the day it bears date, but was executed on March 21, 1903. The affidavit filed by appellee to have the judgment opened states that the note was executed and delivered March 21,1903, and not on October 6,1906, “that said note was due one day after date and no credit or payment was ever made thereon * * * and that the same was effectually barred by limitations on the day and at the time said pretended judgment was taken.” This affidavit was filed several days before the plea was filed. The appellee neither verified his plea nor filed any affidavit denying the execution of the instrument sued on.

The original note sued on has been certified to this court for its inspection. The writing on the note, except the signature, was done by the same person and would all appear to have been done at the same time with the same pen and ink, and there has been no erasure or change in the date of the note.

There is no plea or intimation in the case that there was any fraufl in procuring the execution of the note. The evidence for appellee shows that in March, 1903, he had a settlement with Benjamin Newman, the payee, his father, and that he at that time executed the note, sued on. Appellee testified that his sister wrote the note and that he read it over before he signed it, but that he did not look at the date of the note. He refused to testify whether the date October 6,1906, was or was not written on the note when he signed it. He did not testify that anything was said concerning the date of the note or that there was any agreement as to when the note was to be dated. The evidence of the sister of appellee, who wrote the note, is that the settlement was October 6,1906, that she made the calculation for the parties, that there was due the deceased from appellee" at that time $2,531.38, and that the note was ma(j,e and dated October 6, 1906, and that appellee, on the suggestion of his father, agreed to pay $31.38 cash and make the note for $2,500, and the odd dollars and cents were erased. She also produced a large envelope mailed in Chicago, September 5, 1906, on the back of which are the figures of the settlement corresponding with her evidence. There is also evidence in the record tending to show that the deceased said he was going to give appellee the note, or had given it to him, and one witness testified that he saw the note April 1,1904, in the possession of appellee, but the note was found after the death of the payee • in his box among his other securities. We are of the opinion on a review of all the evidence that the preponderance of the evidence is so manifestly in favor of the contention of appellants that, even if the date of the execution of the note should fix the date of its maturity, the court should have granted a new trial.

Section 29 of the Negotiable Instruments Act (J. & A. If 7650) provides: “When the instrument or an acceptance or any indorsement thereon is dated, such date is deemed prima facie to be the true date of the making * * Section 30 of the same Act (J. & A. 7651) also expressly provides: “The instrument is not invalid for the reason only that it is antedated or postdated, provided this is not done for an illegal or fraudulent purpose,” and that “the person to whom an instrument so dated is delivered acquires the title thereto as of the date of delivery.” If the date and, the time of delivery differ, the construction in general follows the expressed date. 7 Cyc. 544; Bumpass v. Timms, 3 Sneed (Tenn.) 459; Luce v. Shoff, 70 Ind. 152; Powell v. Waters, 8 Cow. (N. Y.) 669. Maturity is reckoned from the expressed date. 8 C. J. 209.

The trial court in the fourth instruction for appellee told the jury that the actual date of making and delivering the note must he taken as the date of the note, if the evidence shows the actual date of making and delivering the note. The rule, as we understand it, is that unless there was fraud in postdating the note, its express terms as to when it matured must control, and the note sued on would not by its terms mature until October 7,1906, so that the statute of limitations is not a defense to the note sued on, unless there was either fraud in postdating the note, of which there is no evidence, or the note was not dated at the time it was executed and the date October 6, 1906, was afterwards inserted, or the date has been changed.

The seventh instruction also is technically erroneous in not including the documentary evidence in the case as evidence to be considered with the other enumerated evidence.

It should be noted that most of the instructions given at the request of appellants are erroneous in requiring the jury to be convinced by the evidence that the defense has been proved.

For the reason pointed out, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Mary M. Maloney, Administrator, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    Death, § 50b

      —when evidence shows that person killed at railroad crossing was guilty of contributory negligence. Evidence held to show that deceased was not in the exercise of ordinary care for his own safety prior to and at the time he was killed by defendant’s train at a crossing, in an action to recover damages resulting from his death, where it appeared that there was a headlight burning on the front of the engine at the time he was struck; that the view was unobstructed within 75 or 80 feet of the track; that he could, not help seeing the light unless he was asleep or intoxicated; that he was more or less intoxicated three hours before and that there was no eyewitness to the accident.

      Appeal from the Circuit Court of Clark county; the Hon. Augustus A. Partlow, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed.
    Opinion filed October 11, 1917.
    Statement of the Case.
    Action by Mary M. Maloney, administratrix of the estate of H. K. Maloney, deceased, plaintiff, against the Cleveland, Cincinnati, Chicago & St. Louis Bailway Company, defendant, to recover damages resulting from the death of the deceased caused by his being struck by defendant’s train. From a judgment for plaintiff for $1,500, defendant appeals.
    P. J. Kolb and Scholfield & Scholfield, for appellant; L. J. Hackney and Frank L. Littleton, of counsel.
    Everett Connelly and Arthur Poorman, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.


text:
    William J. Hall, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Negligence, § 228

      —when instruction referring to the exercise of care 6y plaintiff at'the time of occurrence of injury is not erroneous. Where an instruction in a personal injury case used the language, “Whether or not the plaintiff exercised ordinary care for his own safety at the time of the occurrence of the injury complained of,” held that it was a strained construction to say that this only required due care at the instant plaintiff was struck, and that an ordinary person would understand it as covering the time and acts leading up to the injury, which were all a part of the occurrence, and that, when all the instructions were read together, the jury could not fail to understand that “at the time of the occurrence” included the acts leading up to the accident.

      Appeal from the Circuit Court of Tazewell county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 11, 1917.
    Statement of the Case.
    Action by William J. Hall, plaintiff, against the Chicago & Alton Railroad Company, defendant, to recover damages for personal injuries. From a judgment for plaintiff for $2,300, on remittitur, defendant appeals.
    For the decision on a former appeal and for a statement of the facts, see 188 Ill. App. 95.
    Curran & Dempsey, for appellant; Winston, Payne, Strawn & Shaw, of counsel.
    J. M. Powers and William A. Potts, for appellee.

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

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

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

   Mr. Justice Thompson

delivered the opinion of the court.

2. Instructions, § 137 —when properly refused. Instructions calling attention to certain portions of the evidence and telling the jury if they believe such parts of the evidence they should find for the defendant, and undertaking to tell that the things stated were contributory negligence without regard to the other evidence in the case, held properly refused.

3. Appeal and error, § 1506*-—-when sustaining of objection to cross-examination is not prejudicial error. A question on cross-examination of plaintiff, in an action to recover damages for personal injuries, whether he understood that it was his duty to stand in the clear when a train went by, objected to as not proper cross-examination, held to state a fact so obvious that sustaining of objection could not prejudice defendant.

4. Appeal and erbob, § 1733*'—when holding on former appeal is controlling. Where the evidence on a pending appeal was not dif; ferent from that on a former appeal, held that the holding on the former appeal that the questions whether the injured person, in an action to recover damages for personal injuries, was in the exercise of due care and whether defendant was guilty of the negligence alleged were properly submitted to the jury and that their findings would not be interfered with where the verdict was not manifestly against the weight of the evidence, was res judicata on those questions.

5. Trial, § 105*—when motion to strike entire answer to question is properly denied. Where an answer to a question is in part proper and in part improper as not responsive, a motion to strike the entire answer is properly denied, as the motion should be confined to the objectionable matter.

6. Damages, § 244*—when admission of evidence is not prejudicial error. Where defendant, in an action to recover damages for personal injuries, sought to show in mitigation of damages that plaintiff lost certain time prior to the accident producing the injury, and gave as a reason that he was not feeling well, and that he was a married man with a family, held, that under such proof by defendant, it was not prejudicial error for plaintiff to show in rebuttal the real reason why he was absent from work.

7. Appeal and error, § 1413 —when verdict is not against manifest weight of evidence. A verdict in a personal injury action for less than two prior juries rendered, held not so manifestly against the evidence that it could not be sustained.


text:
    Valerian Simpkus, Appellee, v. Superior Coal Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Evidence, § 399

      —when question does not embody facts to be . found by jury. A question asked of an expert witness that “supposing a man,” etc., describing the conditions shown by the evidence gave a history of inability to copulate, what would he say as to such inability being from the injuries found, held not objectionable as embodying the facts to be found by the jury, although suggestive and leading and objectionable on such latter ground.

      Appeal from the Circuit Court of Macoupin county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the April term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 11, 1917.
    Statement of the Case.
    Action by Valerian Simpkus, plaintiff, against the Superior Coal Company, defendant, to recover damages for personal injuries sustained by plaintiff while employed at defendant’s coal mine. From a judgment for plaintiff for $5,250, defendant appeals.
    Edward C. Knotts, for appellant.
    Truman A. Snell, W. A. Ruegg and A. M. Fitzgerald, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

2. Appeal and error, § 1506 -—when improper answer on cross-examination is not reversible error. Where part of the answer to a question on cross-examination by defendant was uncalled for, held, on a motion by defendant’s counsel to exclude the evidence, that there was no reversible error when the uncalled for part was read in connection with the preceding evidence of the witness.

3. Damages, § 238*—what objection cannot be first raised on appeal. An objection that certain hospital expenses, in an action to recover damages for personal injuries, were unnecessary cannot be raised for the first time on appeal.

4. Damages, § 110*—when verdict for permanent personal injuries is not excessive. A verdict for $5,250 held not excessive, where there was no contention plaintiff was not seriously injured, that he suffered much pain, and was still more or less of a cripple, and even defendant’s experts did not testify he was not permanently injured.


text:
    E. B. Conover, Appellee, v. Wabash Railway Company, Appellant.
    1. Carriers, § 96

      —when congestion does not excuse delay. Where a carrier receives freight for transportation, unusual press of business or congestion will not excuse delay unless the shipper was notified at the time the shipment was received of such congestion.
    2. Carriers, § 96*—when carrier liable for deterioration in grain due to delay in transit. Where defendant carrier received in the State for transportation to a foreign State certain cars of grain at a time when there was a congestion at the point of destination over the lines entering the city, preventing the prompt transit of the grain, brought about by conditions due to the European war, the demand of European nations for foodstuffs, the large crops raised and the rush of such commodities to the point of destination and the impossibility of securing ships because of such conditions, held that defendant was guilty of negligence in accepting the grain for shipment when it knew or ought to have known that it could not transport it to its destination within a reasonable time, in an action to recover damages for deterioration in the grain due to delay.
    3. Carriers, § 96

      —when necessary to notify shipper of conditions hindering transportation. A showing of such unusual conditions or congestion hindering transportation as is possessed by the public generally is insufficient to relieve a carrier from liability for delay, but a shipper must be notified by the carrier.
    4. Carriers, § 107*—when evidence as to conditions hindering transportation is properly excluded in action for damages for delay. In an action by a shipper against a carrier to recover damages for deterioration in grain .caused by delay in its shipment, where the carrier failed to give notice to the shipper at the time of accepting the grain of any conditions hindering the transportation and likely to cause delay, evidence as to such conditions held properly excluded.
    •5. Carriers—when instruction that shipper having knowledge of conditions hindering transportation cannot recover for delay is properly refused. In an action by a shipper against a carrier to recover damages for deterioration in grain caused by delay in its shipment, where the carrier failed to give notice to the shipper at the time of acceptance of the grain of any conditions hindering transportation and likely to cause delay, held that an instruction, that if the jury believed that plaintiff knew of such conditions when he made the shipment he could not recover, was properly refused.
    6. Carriers, § 143*—what is measure of damages for injury to freight in transit. The rule of damages for injury to freight in transit is the difference in market value between the condition in which the same should have arrived but for the negligence of the carrier and its market value in the condition in which by reason of such negligence the same did arrive.
    7. Carriers—when instruction on measure of damages for injury to shipment due to delay in transportation is erroneous. Instruction, in an action by a shipper against a carrier to recover damages for deterioration in grain shipped caused by delay in the transportation, that the rule of damages was the difference in value between the condition in which the grain should have arrived but for defendant’s negligence and its value in the condition in which by reason of such negligence it did arrive, held erroneous because not limited to damages resulting from delay only.
    8. Appeal and error, § 1241*—when party may not obtain advantage by own error. A party offering an erroneous instruction cannot obtain advantage by his own error.
    9. Carriers, § 110*—what is effect of advance in market price on liability for injury to goods due to delay in transit. Where goods are both damaged and delayed in transit and during the delay the market price has risen so that the increased value through the rise in price is greater than the diminution through the injury, the plaintiff may recover damages resulting from the injury; the carrier cannot be exempt from the consequences of his own wrong by an advance in price.
    10. Carriers, § 143

      —what is measure of damages for grain lost in transit. Value at the time of shipment of grain lost in transit, held to be the correct measure of damages, in an action to recover damages for such loss.
    11. Carriers, § 30*—when Interstate Commerce Act controls in actions against interstate carriers. Actions for loss and damage to freight in transit in interstate commerce are exclusively controlled by the Interstate Commerce Act and its amendments.
    12. Carriers, § 162*—-when notice of claim to carrier is condition precedent to recovery of damages. A provision in a shipping contract limiting the time within which a claim for damages may be made and fixing the manner and place of making it is valid, and failure to give notice of the claim is fatal, to a plaintiff’s right to recover unless it is contrary to law or unreasonable.
    13. Carriers, § 184*—when instruction on necessity of claim for damages for injury to interstate shipment due to delay in transit is properly refused. In an action by a shipper against a carrier to recover damages for injury to an interstate shipment due to delay in transit, an instruction that under the shipping contract, providing that a claim for loss, damage or delay must be made in writing at a certain place and within 4 months after delivery, or after reasonable time for delivery, and that no liability should exist unless claim was so made, the jury should find for defendant as to any claim not so made, held properly refused, as, under the Carmack Amendment to the Interstate Commerce Act and the Cummins Amendment thereto, such shipper is entitled to recover without giving any notice or filing any claim for injury due to delay in -.transportation as a condition precedent to recovery, and such provision of the contract relating to delay was void.
    14. Carriers, § 162*—when notice or claim in writing to interstate carrier is unnecessary. No notice or claim in writing need be made by a shipper to the carrier as a condition precedent to the recovery for damage due to delay in transportation of an interstate shipment, under the Cummins Amendment of 1915 to the Interstate Commerce Act.
    Appeal from the Circuit Court of Sangamon county; the Hon. Norman L. Jones, Judge, presiding. Heard' in this court at the April term, 1917.
    Affirmed.
    Opinion filed December 1, 1917.

      Graham & Graham, for appellant; Edward Barton and Charles B. Webber, of counsel.
    H. L. Child, for appellee; Wilson, Warren & Child, of counsel.

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

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

   Mr. Justice Thompson

delivered the opinion of the court.

B. B. Conover, plaintiff, was in 1916 engaged in Sangamon county, Illinois, in buying and shipping grain. He brought suit to recover damages claimed to have been sustained on 7 carloads of shelled corn shipped at different times from Dawson, Illinois, to Baltimore, Maryland. The declaration contains a count based upon each car. In each count it is averred that plaintiff delivered a car of grain, giving the number of the car, to the defendant for transportation to Baltimore ; that it became the duty of the defendant to carry the grain within a reasonable time, and to use due care in caring for said grain and not permit it to heat or otherwise deteriorate; that the defendant failed to deliver the grain within a reasonable time in as good condition as when received by it, but negligently permitted the grain to deteriorate in quality. The car described in count 2 containing 65,650 pounds of corn was shipped from Dawson, February 28, 1916, and was 28 days in transit. The car declared upon in count 3 containing 65,730 pounds of corn was shipped February 15, 1916, and was 41 days in transit. The car declared on in count 5 containing 66,000 pounds of corn was shipped February 14, 1916, and was 97 days in transit. It is the claim of plaintiff that the corn in each of these cars heated, spoiled and rotted in the car because of the delay in transit. The jury found the defendant guilty under counts 2, 3 and 5, and assessed plaintiff’s damages at $388,74, and found the defendant not guilty as to all other counts. Judgment was rendered on the verdict in favor of the plaintiff. The defendant appeals.

The bill of particulars concerning count 5 also claimed a shortage in addition to the deterioration in quality, but counsel for appellant have not in their brief or argument mentioned the feature of the case that concerns loss of corn. The only questions presented are concerning deterioration, so that no question, either of law or fact, concerning loss of corn is presented for review.

One of the principal contentions of appellant is that the court erred in refusing to admit evidence offered by appellant which, it is argued, would show that the delay in transit was caused by a condition of1 great congestion existing at Baltimore in grain elevators, and in freight yards and railroad terminals extending back many miles along the lines of all railroads entering Baltimore, and especially on the Baltimore & Ohio Railroad, which was the last carrier and where much, of the delay occurred. The same question was raised by the eighth instruction requested by appellant, which the court refused. That instruction is;

“The court instructs you that if you believe from the evidence that the plaintiff at the time of delivering the corn in question to the carrier knew of the congestion at Baltimore, and knew that it was likely that there would be delay in delivery, then you should find the defendant not guilty.”

It is argued that a carrier is only liable for unreasonable delay, and that at the time this shipment was accepted by appellant the great congestion existing at Baltimore over the lines of railroad entering that city prevented the prompt transit of the grain in question; that the congestion was brought about by conditions directly attributable to the European war, the demand of European nations for foodstuffs, the large crops raised and the rush of such commodities to Baltimore and the impossibility of securing ships because of conditions brought about by the war.

The rule is settled that where a carrier receives freight, unusual press of business or congestion will not excuse delay unless the shipper was notified at the time the shipment was received of such congestion. “By the mere act of accepting the freight without explanation, the company undertook to transport and deliver it within a reasonable time. * * * The company knew that its lines were in such condition as to incapacitate it for performing its full duty as a common carrier by delivering goods not only in safety, but in a reasonable time. In order to save itself from liability, it should have disclosed to the shipper the condition of its road.” Appellant was guilty of negligence in accepting the grain for shipment when it knew, or ought to have known, it could not transport it to its destination within a reasonable time. Great Western Ry. Co. of Canada v. Burns, 60 Ill. 284; Illinois Cent. R. Co. v. Cobb, Christy & Co., 64 Ill. 128; Tate v. Missouri Pac. R. Co., 157 Ill. App. 106; Eastern Ry. Co. of New Mexico v. Littlefield, 237 U. S. 140; 4 R. C. L. 742.

A showing of such notice of unusual conditions or congestion as is possessed by the public generally is insufficient to relieve from liability for delay; the shipper must be notified by the carrier. Missouri, K. & T. R. Co. of Texas v. Stark Grain Co., 103 Tex. 542, 131 S. W. 410; Daoust & Welch v. Chicago, R. I. & P. R. Co., 149 Iowa 650, 34 L. R. A. (N. S.) 637, and note.

The evidence that appellant introduced on the question of congestion was improperly admitted, and there was no error in rejecting further evidence offered, and in refusing the instruction.

It is also contended that the court erred in the rule of damages applied as to the cars on which claim is made for deterioration in the admission of evidence introduced by the appellee on that question. The com was sold subject to weight and grade at Baltimore. The grades at Baltimore are designated as “prime sail” corn, which is the best grade; the next is ‘£ steamer corn”; then “no established grade, ’ ’ and£ £ rejected com.” In Illinois, at the time these cars were shipped, com was graded as No. 2, No. 3, No. 4, No. 5 and No. 6, the grade depending on the amount of moisture in the corn. The evidence shows that the corn shipped by appellee was No. 5 when shipped, and. that No. 5 in Illinois corresponds with or would be either “prime sail” or “steamer com” in Baltimore, and that the com was from 28 days to over 3 months in transit while the usual time is from 8 to 12 days, and that because of the unusual time occupied in transit the com heated, rotted and decayed so that when it arrived in Baltimore it graded as “rejected corn.” The difference in the price between “steamer com” and “rejected corn” in Baltimore when the com arrived there was from 25 to 30 cents per bushel, and “ steamer com” was 3 cents less than “prime sail” com. The contention of appellant is that the measure of damages is the difference between the fair cash market value of the com at the time and in the condition in which it should have arrived and its market value at the time it did arrive. The claim of appellee is not for damages because of the decline in the market during the delay, but for the depreciation caused by the fermentation and decay of the com because of the delay, and his contention is that the measure of damages is the difference between the market value of the corn at the time it reached its destination in the condition in which it should have arrived and its market value at that time in the condition in which it did arrive.

“The measure of liability of a carrier of an interstate shipment under a bill of lading issued pursuant to the act to regulate commerce is a federal question and the obligation is to be governed under the act by uniform rule in the place of the diverse requirements of State legislation and decisions; nor is the question less a federal one because resolved by application of general principles of common law.” (Southern Ry. Co. v. Prescott, 240 U. S. 633; Adams Exp. Co. v. Croninger, 226 U. S. 491; Gamble-Robins on Commission Co. v. Union Pac. R. Co., 262 Ill. 400.)

The rule of damages for injury to freight in transit is the difference in market value between the condition in which the same should have arrived but for the negligence of the carrier and its market valué in the condition in which by reason of the negligence of the carrier the same did arrive. In New York, L. E. & W. R. Co. v. Estill, 147 U. S. 591, the court instructed the jury: “The law also is that if a carrier receives property for transportation and delivers it at the end of its route, but, through its fault, it is damaged and it fails to deliver it in the same condition as when received, it must pay the difference between the value, of the property in its damaged condition at the point of destination and what the value of the property would have been at that place if delivered in the same condition as when it was received for transportation.” This was held to be the correct measure of damages, and that case is cited and followed in Gulf, C. & S. F. Ry. Co. v. Texas Packing Co., 244 U. S. 31, 61 L. Ed. 970, opinion filed May 7, 1917; Cleveland, C., C. & St. L. Ry. Co. v. Patton, 104 Ill. App. 550, affirmed in 203 Ill. 378; Wabash R. Co. v. Campbell, 219 Ill. 320; United Steamship Co. v. Haskins, 181 Fed. 962; Michigan Cent. Ry. Co. v. Osmus, 129 Ill. App. 79; 3 Sutherland on Damages, sec. 918; Michie on Carriers, pp. 850-851; Sedgwick on Damages, vol. 3, sec. 852.

If the damages sought to be recovered were for delay only, then the rule is as contended for by appellant. It requested and the court gave an instruction stating that to be the rule in this case.

We hold that the instruction was erroneous, because it was not limited to damages resulting from delay only, but appellant cannot acquire advantage by its own error. The claim of appellee is for deterioration of the grain because of the negligence of appellant, and for loss of grain. Where the goods were both damaged and delayed in transit and during the delay the market price had risen so that the increased value, through the rise in price, was greater than the diminution through the injury, the plaintiff should recover • damages resulting from the injury; the carrier cannot be exempt from the consequences of his own wrong by an advance in price. Morrison v. I. & V. Florio Steamship Co., 36 Fed. 569; Sedgwick on Damages, p. 1763. There is no error in the admission of evidence concerning damages for deterioration caused by delay.

Appellee proved the value, at the time of shipment, in the aggregate of the corn lost from the cars; that was the correct measure of damages for grain lost, and there was no objection to the manner of making such proof.

Appellant further contends that the court erred in refusing instruction No. 7 requested by it. The instruction is:

“The court instructs you that under the shipping contracts in evidence unless plaintiff has proved by the greater weight of the evidence that on the shipments going outside the State of Illinois, plaintiff filed written claims with the defendant within four months after the arrival of the grain at destination, you should find for the defendant on all such shipments as to which plaintiff failed to show by the greater weight of the evidence that he filed a written claim with the carrier within such time.”

The shipments were all interstate. The suit is against the initial carrier. A through bill of lading was issued. One of the conditions on the bill of lading is: “Claims for loss, damage or delay must be made in writing to the carrier at the point of delivery or at the point of origin within four months after the delivery of the property, or in case of failure to make delivery, then within four months after á reasonable time for delivery has elapsed. Unless claims are so made the carrier shall not he liable. ’ ’

No evidence appears to have been offered showing that any- claim was made in writing in compliance with the condition on the bill of lading.

Suits for loss and damages to freight in transit in interstate commerce are exclusively controlled by the Interstate Commerce Act and the amendments thereto, known as the Carmack Amendment, enacted in 1906, and the Cummins Amendment to the Carmack Amendment adopted in 1915 (U. S. Statute 1915, page 1196); Adams Exp. Co. v. Croninger, 226 U. S. 491; Gamble-Robinson Commission Co. v. Union Pac. R. Co., 262 Ill. 400.

The Cummins Amendment provides that the carrier receiving property for interstate shipment shall issue a bill of lading and shall be liable to the holder thereof “for any loss, damage, or injury to such property * * * and no contract, receipt, rule, regulation, or other limitation of any character whatsoever, shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed; and any such common carrier * * * shall be liable * * * notwithstanding any limitation of liability or limitation of the amount of recovery or representation or agreement as to value in any such receipt or bill of lading, * * *; and any such limitation, without respect to the manner or form in which it is sought to be made is hereby declared to be unlawful and void: Provided, * * *: Provided further, That nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or fight of action which he has under the existing law: Provided further, That it shall be unlawful for any such common carrier to provide by rule, contract, regulation, or otherwise a shorter period for giving notice of claims than ninety days, and for the filing of claims for a shorter period than four months, and for the institution of suits than two years: Provided, hoiuever, That if the loss, damage, or injury complained of was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery.” That act took effect 90 days after March 4, 1915, and was in effect when the damages claimed in this case accrued.

The last proviso states that if the loss, damage or injury complained of was due to delay or in transit by carelessness or negligence, then no notice of filing of claim shall be required.

The damages sued for in this case, and concerning which any question is raised, are damages because of the negligence of appellant in delaying the transportation whereby the grain heated and fermented and was decayed and injured. It does not appear that the Cummins Amendment has been before the courts of appeal for construction; at least no authority is cited and we have not been able to find any construing it, but appellee is entitled to sue for and recover the damages caused by the delay and negligence of appellant in transit without giving any notice or filing any claim as a condition precedent to recovery for such damages. Baxter v. Louisville, N. A. & C. Ry. Co., 165 Ill. 78, is cited in behalf of appellee as authority for his contention that the notice referred to is collateral and not necessary to be shown to entitle him to a recovery. The holding of the court in that case was that the notice provided for was unreasonable and therefore void. It does not sustain the contention of appellee. The bills of lading introduced in evidence by appellee show that the filing of the notice of claim in writing is a condition precedent to bringing suit. The rule is that a provision in a shipping contract limiting the time within which a claim for damages may be made and fixing the manner and place of making it is valid and binding and a failure to give notice is fatal to plaintiff’s right to recover utiless it is contrary to law or unreasonable. (St. Louis, I. M. & S. Ry. Co. v. Starbird, 243 U. S. 592, 61 L. Ed. 917, opinion filed April 30, 1917; Clegg v. St. Louis & S. F. R. Co., 203 Fed. 971; Sweetser v. Chicago & A. R. Co., 196 Ill. App. 623; 4 R. C. L. 794, 922.)

The instruction, however, was properly refused, because it instructed a verdict for appellant on the whole case, unless the appellee had proved that he had filed claims in writing within 4 months after the delivery of the shipments, when the requirement of filing notice or filing of claims was void as to the damages sustained by delay in transit through the negligence of appellant under the Cummins Amendment. If the instruction had been limited to some loss or damage not exempted from the requirement of filing a claim in writing within 4 months, a question not now raised would have been presented.

The only questions presented and argued are those concerning the claims for damages from deterioration resulting from the delay in transit.

There is no reversible error in any question presented for review. The judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Goodwin

text:
    Richard Weber, Appellant, v. Prudential Insurance Company of America, Appellee.
    Gen. No. 22,400.
    Insurance, § 112

      —when recovery cannot be had on life policy delivered to agent. Where it was agreed by an applicant for life insurance that the policy should not take effect until it should be issued and delivered by the insurer, while the health of the applicant was in the same condition as described in the application, there can be no recovery on the policy, though the premium thereon was paid the day after the application was made, where it appears that while the policy was thereafter executed by the insurer on the day on which the premium was payable and was returned to the agent, it was not delivered by him to the applicant, though he received it before the latter’s death.
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed October 31, 1917.
    Rehearing denied November 12, 1917.
    Felix J. Griffen and Cheney & Evans, for appellant.

      Hoyne, 0 ’Connor & Irwin, for appellee.

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

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.

Appellant, who sued as the beneficiary of a life insurance policy made out to one Frederick Weber, seeks to reverse a judgment in favor of the appellee insurance company, which was the defendant below. The parties will be referred to as plaintiff and defendant.

The facts in the case, briefly stated, are that Frederick Weber applied for an insurance policy in the amount of $5,000, and in his application stated: “It is agreed that the policy herein applied for shall he accepted subject to the privileges and provisions therein contained, and the policy shall not take effect until the same shall be issued and delivered by the said company, and the first premium paid thereon in full, while my health is in the same condition as described in this application.” This application was made March 7, 1912. On the 17th of that month the applicant, who was a florist, became infected from a rose thorn; on the 21st of the same month the officers of the company executed a policy in consideration of the application, which was made a part of the contract, and the payment of annual premiums of $163.80, payable on the '21st of March of every year. There was evidence that Frederick Weber paid the first premium the day after his application was signed, and obtained a receipt in full from the agent; that the agent apparently received the policy March 23rd, but did not deliver it, and that Frederick Weber died on March 29th, as a result of the infection already referred to. There also was evidence that appellee instructed its agents-not to deliver a policy until the agent had ascertained that the insured was still in as good a state of health as at the time the policy was applied for. Appellee made no tender of a return of the insurance premium to the estate of Frederick Weber, but did, at the trial, make a tender of the same to appellant, but afterwards withdrew it upon the supposition that it should properly have been returned to the estate. The court, who heard the case without a jury, found for the appellee.

Appellant submitted findings to the effect that the policy of insurance was issued when it was mailed to the agent; that the payment of the first year’s premium to the agent, the execution of the policy and the act of the appellee in forwarding it to the agent, rendered it a binding obligation. These holdings and others of the same tenor were refused. The difficulty which stands in the way of appellant’s recovery on the policy is that the applicant for the insurance expressly stipulated that the policy should nevér become binding on the company until it had been issued and delivered to him, and this stipulation was incorporated into the policy itself; in other words, recovery is sought upon an- instrument which, by its terms, was never to become operative until it hád been delivered to the insured, while the evidence shows that such delivery never was made. It would seem that the contract proposed is unfair to the insured in that it puts it in the power of the company to receive the applicant’s premium, and, after actually executing the contract of insurance, to withhold the benefit of the insurance and speculate upon the advantages and disadvantages of making delivery. This appears to be particularly inequitable when it is remembered that the insured is charged a premium for insurance from the date the policy is executed, but is, in fact, protected by no insurance until actual delivery of the policy is made. In short, if appellee’s theory of the character of the contract is accepted, it convicts itself of an intention to charge the insured for insurance for a period of time during which he receives no insurance protection whatever. Upon a careful consideration of the question, however, we are of the opinion that this inconsistency cannot defeat the intention of the parties so plainly expressed in the policy and application, which is made a part of it. The applicant, in no uncertain terms, agreed that the policy should not take effect until it was delivered to him. This agreement was made a part of the policy, and the evidence in regard to instructions to agents clearly shows that defendant acted upon its right to withhold the policy until it ascertained in each case that the applicant was still in good health. It was apparently not willing to accept applications until they contained that provision. In these circumstances, we are compelled to conclude that the policy in question never became a binding contract.

The judgment of the Superior Court will, therefore, be affirmed.

Affirmed.


text:
    Clara Stiefel, Individually and as Administratrix of the Estate of Abraham Stiefel, Deceased, Defendant in Error, v. Amalgamated Sheet Metal Workers’ Local Union No. 73, International Alliance, Thomas Reading, Edgar Ray, B. A. Schooley and Paul Christman, Plaintiffs in Error.
    Gen. No. 22,521.
    1. Insurance, § 782

      —when "by-law of trade union does not prevent recovery on benefit certificate of member in arrears in dues. The provisions of a hy-law of a union that members who have been in good standing for the period of 1 year shall be entitled to death' benefits; that members can be admitted to the hall until they are 3 months in arrears; that when they are over 3 months in arrears they shall be suspended and that a suspended member forfeits all rights and privileges and is not entitled to any benefit, does not prevent the recovery of such benefits though at the time of the member’s death his dues were unpaid for the quarter preceding it, where the evidence discloses no act of suspension but shows that he had attended meetings and had been admitted to the hall up to the time of his death, was in good standing at that time and had. been for more than a year theretofore and that the organization had previously received dues in arrears from him as a member in good standing and collected money from the international organization after the member’s death on representing that the latter had been “continuously in good standing” in the local organization for a period of 12 months or more before his death.
    2. Insurance, § 887*—when attendance card of trade unionist is admissible in action on benefit certificate. In an action against a union to recover the death benefit of a member, it is not error to admit in evidence, for the purpose of showing that the deceased had attended the meetings of the union, an attendance card issued by the union for the purpose of showing the attendance of the member at the meetings pursuant to the by-laws, where the card was properly identified by the union’s financial secretary and the purpose of its issuance was shown.
    3. Insurance, § 793*—when trade union is estopped to deny that a member is in good standing. Where a local union, after a member’s death, certifies to the international alliance of which it is a member that such deceased member was a member of the local union in good standing for the year preceding his death and thereby obtained a sum of money for itself, it is estopped, in a suit against it to recover benefits due on the death of such member, to deny that he was in good standing for the year before his death.
    Error to the Superior Court of Cook county; the Hon. Chables M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed October 31, 1917.
    Rehearing denied November 17, 1917.
    Cruice & Langille, for plaintiffs in error; Daniel L. Cruice, of counsel.
    Bulkley, More & Tallmadge, for defendant in error.

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

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.

Plaintiffs in error, who were the defendants below, seek to reverse a decree in favor of the defendant in error for the payment by defendant organization of $1,331, and the collection of that sum by the individual defendants, who were officers of the organization. The parties will be referred to as complainant and defendants. The facts briefly stated are as follows:

Complainant’s intestate had, at,the time of his death, been a dues-paying member of the defendant organization for about 15 years, and complainant was, under the rules of the organization, entitled to recover the sum mentioned in the decree if her intestate is to be considered as having been, at the time of his death, in good standing.

Article'’ 12 of the defendant organization’s by-laws provided that members who had been in good standing for the period of 1 year should be entitled to the death benefits; that members could be admitted to the hall until they were 3 months in arrears; that when they were over 3 months in arrears they should be suspended, and that a suspended member forfeited all rights and privileges and was not entitled to any benefit.

The court found that the intestate’s dues were unpaid for the last quarter preceding his death, but that he had attended meetings of the organization and had been admitted to the hall up until the time of his death; that no action or proceedings were taken to suspend him, and that at the time of his death he was in good standing, and had been for a period of more than 1 year prior to his death. The court further found, and it clearly appears from the evidence, that the defendant organization collected from the international organization the sum of $100 upon representing to the latter that the deceased had been “continuously in good standing” in the local union “for a period of 12 months or more before the time of his death. ’ ’

The reversal of the decree is sought on the ground that the complainant’s intestate, who died in January, had not paid his dues since the 1st day of July of the preceding year, and that the dues were required to be paid monthly. We. are, however, of. the opinion that this contention cannot be sustained. There is nothing in the language of the by-laws which indicates that suspension was automatically to follow a failure to pay dues within the specified time, and the evidence discloses no act of suspension, but, oil the contrary, facts from which the chancellor was entitled to find that the defendant organization continued to treat complainant’s intestate as a member in good standing up to the time of his death.

Defendants contend that the court erred in permitting the introduction of a certain attendance card. The card was, however, properly identified by the financial secretary of the defendant organization, and it was clearly shown that its purpose was to constitute evidence of the attendance of members by punch marks placed in the spaces in which the names of the months appeared. It appears from the by-laws that members were required to attend meetings of the organization, and the organization prepared these cards and required them to be punched as proof of attendance. Where an organization has, in this manner, established a process for the creation of evidence of a certain fact, it is impossible to say that the evidence so created is not admissible in a court of law. Clearly, a card punched as this card was, was intended to be evidence that the holder has attended the meetings designated on the card, and it was, therefore, clearly admissible.

In view of the fact that no steps had been taken to suspend complainant’s intestate, and that he was, on the contrary, treated as a member and admitted to the hall, and that, during' the 15 years he was a member, dues in arrears had been on former occasions received by the defendant organization as from a member in good standing, the chancellor was, in our opinion, clearly justified in holding that complainant was entitled to recover the death benefit provided by the constitution and by-laws.

But there is another fact which, in itself, in our opinion, estopped the defendant organization from claiming that complainant’s intestate was not entitled to the death benefit on the ground that her intestate was not in good standing for the year prior to his death, and that is, that it and its officers certified to the international alliance, of which it was a member, that the intestate was, in fact, a member of the defendant organization in good standing for the year prior to his death, and thereby obtained for the complainant the sum of $100. By that act, the defendants, with all the facts before them, finally passed upon the question, and they cannot now be heard to say that their statement was false. Their certificate to the international alliance constitutes, in our judgment, a' conclusive admission of the vital fact in controversy here. Defendants object to the portion of the decree which requires the individual defendants to levy an assessment and collect the same. As this, however, is the method provided for in the by-laws, and constitutes complainant’s only remedy, we do not think the court erred in requiring it to be done.

In view of these conclusions, the decree of the Superior Court will be affirmed.

Affirmed.


text:
    Myrtle Johnson, Defendant in Error, v. T. Willard Ready, Plaintiff in Error.
    Gen. No. 22,535.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed October 31, 1917.
    Statement of the Case.
    Action by Myrtle Johnson, plaintiff, against T. Willard Beady, defendant, to recover damages for false and fraudulent representations. To reverse a judgment by default for plaintiff for $534.18, defendant prosecutes this writ of error.
    S. T. Slawitsky, for plaintiff in error.
    Spencer Ward, for defendant in error.

      See Illinois Notes Digest, Yols. XI to XT, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and ebrob, § 788 —when bill of exceptions is necessary. Where no bill of exceptions appears in the record filed in the Appellate Court and the judgment is within the ad damnum of the declaration, that court cannot consider a suggestion that the judgment is excessive.

2. Damages—when declaration is sufficient as basis for judgment by default and assessment of. A cause of action sufficient to sustain a judgment based upon a default and an assessment of damages is stated by a declaration which sets out clearly false and fraudulent representations made by defendant, known by him to be false and made for the purpose of inducing plaintiff to rely thereon, and in circumstances entitling the latter to rely thereon, and that the latter did rely thereon and was injured thereby and that the property which was delivered to plaintiff was without value.

3. Damages, §. 233*—when verdict of guilty as part of findings of jury assessing damages treated as surplusage. In an action for damages, though a verdict of guilty is improper where no plea is filed on behalf of defendant, such portion of the jury’s findings may be disregarded as surplusage where the findings include a proper and sufficient assessment of damages.


text:
    The People of the State of Illinois, Defendant in Error, v. Delia Butler, Plaintiff in Error.
    Gen. No. 23,007.
    1. Prostitution, § 3a*—what constitutes fatal variance between information and judgment. There is a fatal variance between an information which charges defendant with being the keeper of a house of prostitution, to substantiate which evidence is offered, and a judgment which finds defendant guilty of the offense of being an inmate of a house of ill fame for the practice of fornication.
    2. Prostitution, § 4c*—when variance between information and judgment is not cured. The variance between an information which charges a defendant with being the keeper of a house of prostitution and a judgment which finds her guilty of being an inmate of a house of ill fame for the practice of fornication, is not cured by the fact that the evidence is sufficient to show her guilty of the offense named in the judgment.
    Error to the Municipal Court of Chicago; the Hon. Harry M. Fischer, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Reversed.
    Opinion filed October 31, 1917.
    P. R. Boylan, for plaintiff in error.
    Maclay Hoyne, for defendant in error; John F. Cashen, Jr., of counsel.
   Mr. Presiding Justice Goodwin

delivered the opinion of the court.

In this case, plaintiff in error was tried on an information charging her with being the keeper of a house of prostitution, and evidence was offered tending to substantiate that charge. The court, however, entered a judgment adjudging her guilty of the criminal offense of being an inmate of a house of ill fame for the practice of fornication.

There is, in our opinion, a fatal variance between the information and the judgment. By the information she was required to meet only the charge that she was a keeper of a house of prostitution; the judgment convicts her of having been guilty of a totally different charge, which the information did not require her to meet. The difference is in substance, and not merely in form.

For the defendant in error it is contended that the word “keeper,” in the information, was used inadvertently, and that the trial was conducted upon the assumption that she was tried as having been an inmate. An examination of the statement of the case, however, shows that the prosecution was not conducted on that theory.

It is further contended that the evidence was clearly sufficient to show that she was guilty of the offense named in the judgment. ■ This, in our opinion, is entirely immaterial, for plaintiff in error was not required to offer evidence to meet any charge except the one named in the information.

The judgment of the Municipal Court is reversed.

Uever sed.


text:
    West Side Brewery Company, Appellee, v. Hans Sorensen, Appellant.
    Gen. No. 23,159.
    (Not to he reported in full.)
    Appeal from, the Municipal" Court of Chicago; the Hon. John Richardson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed October 31, 1917.
    Statement of the Case.
    Replevin by the West Side Brewery Company, plaintiff, against Hans Sorensen, defendant, to determine the right of possession to certain saloon fixtures. The evidence showed that the premises containing the fixtures were leased by one Jasperson in 1910, who executed a contract acknowledging plaintiff’s ownership of the fixtures. A year and a half later the premises were leased by one Larsen. During the incumbency of these two tenants, plaintiff made changes in and additions to the fixtures. • Three years and a half after Jasperson’s tenancy had terminated, Larsen sold his lease to defendant, giving him also a bill of sale for which the consideration was $1, but nothing being said as to the fixtures. Defendant claimed that plaintiff had given Jasper son possession of the property and had clothed him with the indicia of ownership and was estopped to deny his ownership. From a judgment for plaintiff, defendant appeals.
    Abstract of the Decision.
    Replevin, § 124

      —when evidence supports judgment for plaintiff. In an action of replevin to determine the right to the possession of certain saloon fixtures, evidence held to support a judgment for plaintiff.
    Otto Christensen and M. Emmet Clare, for appellant.
    Mechem, Bangs & Harper, for appellee.

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

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.


text:
    City of Chicago, Appellee, v. Alex Langer, Appellant.
    Gen. No. 23,163.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed October 31, 1917.
    Statement of the Case.
    Prosecution by the City of Chicago, plaintiff, against Alex Langer, defendant, for selling malt liquor in quantities of one gallon or more without obtaining a license so to do for the place of business where the liquor was sold, in violation of section 1553 of the Municipal Code of Chicago. From a judgment assessing against him a fine of $50, defendant appeals. The statement of facts recited that defendant was agent of a named distilling company and that he sold to a specified person, at such person’s residence, a case of twenty-four bottles of beer, exceeding one gallon in quantity, and delivered such beer at the purchaser’s residence, and that neither defendant nor the distilling •company had obtained a license for the place of business of the company, of which defendant was manager.
    Abstract of the Decision.
    1. Intoxicating liquobs, § 81

      —what is not defense in prosecution of agent of distilling company for selling without license. In a prosecution for selling malt liquor in excess of one gallon without having obtained a license, in violation of section 1553 of the Municipal Code of Chicago, it is no defense that in selling the liquor the defendant was acting as agent for a distilling company, where it also had no license.
    2. Intoxicating liquobs, § 122*—when complaint in prosecution for selling without license is sufficient. In a prosecution for selling malt liquor in excess of one gallon without having obtained a license, in violation of section 1553 of the Municipal Code of Chicago, requiring that the seller shall have a license for its place of business, it'is no defense that the complaint did not charge that defendant did not have a license to sell at the place at which the sale was made, the residence of the purchaser, where the evidence shows that he had a fixed place of business and that neither he nor the company employing him there had a license.
    Charles W. Stiefel, for appellant.
    Samuel A. Ettelson and Harry B. Miller, for appellee; Daniel Webster, of counsel.

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

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

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.

3. Intoxicating liquobs, § 78 —when license ordinance contemplates sales elsewhere than at fixed places of business of sellers. Section 1553 of the Municipal Code of Chicago, providing for a license for persons selling malt liquor in quantities in excess of one gallon, contemplates that such sales will be made elsewhere than at the fixed places of business of the sellers.

4. Intoxicating liquobs, § 78*—when contention that ordinance against selling without license provides no penalty is without merit. On an appeal from a judgment in a prosecution for selling malt liquor without a license in violation of section 1553 of the Municipal Code of Chicago, there is no merit in the contention that no penalty is prescribed by that section, as the penalty is provided by section 1560.

5. Municipal Court op Chicago, § 29*—when assumed that court found that sections 1553 and 1560 of Municipal Code of Chicago were part of same article. On an appeal from a judgment in a prosecution for selling malt liquor without a license in violation of section 1553 of the Municipal Code of Chicago, it is not ground for reversal that section 1560, under which the penalty was imposed, provides a penalty for the violation of “any of the provisions of this article,” where the statement of claim recites that the two sections constitute “an ordinance” of the City of Chicago, and it will be assumed that the Municipal Court of Chicago, in taking judicial notice of the ordinances of the City of Chicago, found that the sections were a part of the same article'.

6. Municipal Court of Chicago, § 36*—when judicial notice tahen of city ordinances. The Municipal Court of Chicago has the right to, and does, take judicial notice of the ordinances of the City of Chicago in criminal cases.


author: Mr. Justice O’Connor

text:
    Philip H. Scheldt, by J. T. Scheldt, Plaintiff in Error, v. Equitable Life Assurance Society of the United States, Defendant in Error.
    Gen. No. 22,427.
    1. Insurance, § 115

      —when agreement construed as unconsummated and in anticipation of future application for insurance. Provisions of an insurance agreement construed as an unconsummated agreement for the payment of moneys to an insurer in anticipation of an application for insurance at some future date by which neither party is bound, but which merely sets forth the terms upon which the insurer proposes to become liable if it so elects.
    '2. Payment, § 39*—when may he recovered. One for whose use moneys are paid to an insurance company in anticipation of an application for insurance at some future time under an unconsummated agreement by which the insurer incurs no liability may, upon his election not to consummate the contract, recover from the insurer the moneys so paid it.
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and judgment here.
    Opinion filed October 31, 1917.
    Harry A. Biossat, for plaintiff in error.
    Mayer, Meyer, Austrian & Platt, for defendant in error.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Philip H. Scheldt, a minor, by his next friend, brought suit against the Equitable Life Assurance Society of the United States to recover $450.63. The case was tried before the court without a jury. The court found in favor of the plaintiff and entered judgment in his favor for $288. Plaintiff, being dissatisfied, prosecutes this writ of error.

The record discloses that December 13, 1904, the defendant issued to the plaintiff its 20-year endowment policy of insurance for $1,000, pursuant to an application made by his father, plaintiff at that time being a school boy 10 years old. The annual premium was $50.07. After the father of plaintiff had paid 9 premiums amounting to $450.63, he wrote the insurance company stating that he did not care to longer continue the policy and demanded the return of his money with 3 per cent, interest, which the company refused but stated it was willing to pay him $288, the surrender value of the policy.

The policy provides, inter alia, that defendant assured the life of plaintiff for $1,000, which, on satisfactory proofs of the death, it agreed to pay to plaintiff’s father, if living, and, if not, then to plaintiff’s representatives. The payment was to be made subject to certain conditions. Clause 7 of the policy provides:

“After this policy has been in force three years the Society will make loans thereon at five per cent, interest per annum, payable in advance, of the respective amounts stated in the following table, upon the due assignment of this policy to the Society as collateral security for such loan.

“This policy shall lapse and together with all premiums paid thereon shall forfeit to the Society on the nonpayment of any premium when due, except that provided premiums shall have been paid for one of the periods respectively mentioned in the following table, there will be granted, without action on the part of tim assured, a Paid-up Endowment for the amount fixed in said table; or in lieu thereof at the option of the assured (1), the cash value fixed in said table will be paid to- said Assured upon the due surrender of this policy to the Society at its Home Office in New York City at any time after its termination; or (2) (provided this policy is surrendered within the days of grace, or, with satisfactory evidence of good health, within one year thereafter) a paid-up term policy for the full amount assured under this policy, and if the Assured is living at the expiration of said term policy, the pure endowment indicated in the fable will be paid in cash to said assured. The paid-up assurance, cash value and paid-up term policy referred to herein are based on the number of full years’ premiums that have been paid, are granted without participation in profits, and are subject to reduction for any indebtedness to the Society under this contract.”

The table attached showed the surrender value of a policy of $1,000 at the end of each year beginning the third year and ending the twentieth year. At the end of 3 years the surrender value was $66; 4 years, $102; 9 years, $288, and the surrender value increased each year to $1,000 at the end of the 20 years. The policy also contained the following condition:

“It is hereby understood and agreed that the assurance under this policy shall take effect only upon the receipt by the Society of evidence of good health of the Assured satisfactory to the Society after attaining fifteen years of age and of the then acceptable character of the risk, and the endorsement of this policy accordingly. Should the Assured die prior to such endorsement, provided this policy is then in force, the Society’s liability shall be limited to the return, without interest, of all premiums received hereunder; and in the event of a lapse of this policy prior to said endorsement, the provisions for extended assurance, or all assurance against death in excess of the amount of premiums received, shall be of no effect. In the event of this contract being continued to the end of the Accumulation Period without such endorsement, the' policy must then be surrendered for its full cash value, including its full share of surplus apportioned.”

Plaintiff contends that, under the policy, “there never was any valid contract of insurance consummated between the parties, and the defendant is liable as for moneys had and received in the amount of the premiums paid.” On the other hand, the defendant contends that the policy was in full force and effect . from the date of its issuance, but that the “assuranee” did not become effective, unless and until the risk was accepted and the indorsement made on the policy after the plaintiff had attained 15 years of age as provided in the condition above quoted; that as such indorsement was not made and plaintiff had never shown that he was in good health after attaining the age of 15 years, then he was entitled under clause 7 to $288, the surrender value of the policy. This seems to be the view adopted by the trial court. .

We are unable to agree with the contention of either party. We are clearly of the opinion that the policy was in force and effect from the date of its issuance. If as the defendant contends the “assurance” under the policy did not become effective for the reason that plaintiff, after he became 15 years of age, furnished no evidence that he was in good health, then the defendant would not be liable to pay the $288, or any other sum mentioned in clause 7, for this is manifestly a part of the assurance. We think that clause 7 does not apply until the assured has attained the age of 15 years and had the policy indorsed as provided for in the condition quoted, and that until such indorsement is made the rights of the assured are fixed by the condition itself. The condition defines the rights of the parties in case the policy lapses without the indorsement of the evidence of the assured’s good health, as follows: “and in the event of a lapse of this policy prior to said endorsement, the provisions for extended assurance, or all assurance against death in excess of the amount of premiums received, shall be of no effect.” When this provision is read with attention, we think the true meaning of it is that, where the policy lapses and the indorsement has not been made, the defendant’s liability is limited to the amount of the premiums paid.

A careful perusal of the document in question discloses that while it is in the form of an insurance, policy, the condition nullified all the provisions in regard to insurance; in short, it gave no insurance protection of any kind, and by its terms subjected the defendant to no liability. It proposed that the minor should pay, and'the comí my should receive, certain sums of money at stated til es, and that if application should be made to the society for insurance after the minor became 15 years of age, the society would then decide whether or not it chose to enter into a contract of insurance. The society was not obliged to enter into any contract of insurance unless it chose to do so. It also appears that in no clause in the policy does the insurance company assume any obligation of any kind. It is contended on behalf of defendant that it did, by clause 7, undertake to.loan or repay certain amounts to the insured upon the surrender of the policy, but we are of the opinion that the clause had no such effect, for it places no obligation upon the defendant until “after- this policy has been in force three years.” In addition to this, the provisions of the clause itself demonstrate that they are intended to apply only to cases where a person has had the benefit of the insurance. The table clearly shows that the purpose is to permit the company to retain enough of the premiums paid to cover the value or costs of the insurance given, and to return to the insured the investment value of the premiums over and above the cost or value of the insurance. Such provisions admittedly have no application to a case where the society has incurred no liability and afforded no insurance protection.

The case, then, resolves itself into one where moneys have been paid to an insurance company in anticipation of an application for insurance at some future time, and where the company incurs no liability, but merely states the terms upon which it proposes to become liable if it elects to do so. It is not a consummated agreement, and as one party is not bound, neither is bound. The defendant company is in receipt of $450.63, which sum was paid to it for the use and benefit of the plaintiff, a minor. The defendant assumed no obligation to the plaintiff, afforded him no insurance, and upon his election not to consummate the contract, is liable to him as for money had and received to his use. It follows therefore that the plaintiff is entitled to recover the amount of the premiums paid, $450.63.

The judgment of the Municipal Court of Chicago is reversed and judgment will be entered in this court in favor of the plaintiff and against the defendant for $450.63.

Judgment reversed cmd judgment in this court.


text:
    Daisy Hanson Harts and Edwin B. Harts, Administrators, Defendants in Error, v. Christian C. Lasman, Jr., Plaintiff in Error.
    Gen. No. 22,477.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Edwabd M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and remanded.
    Opinion filed October 31, 1917.
    Rehearing denied November 17, 1917.
    Statement of the Case.
    Scire facias by Daisy Hanson Harts and Edwin B. Harts, administrators of the estate of Franklin S. Hanson, deceased, plaintiffs, against Christian C. Lasman, Jr., defendant, to revive a judgment. To reverse a judgment for plaintiffs, defendant prosecutes this writ of error.
    Q. J. Chott, for plaintiff in error; Frank H. Culver, of counsel.

      Abstract of the Decision.
    1. Judgment, § 611

      —who may maintain scire facias proceeding to revive. The assignee of a judgment may maintain as assignee a scire facias proceeding to revive the judgment.
    2. Judgment, § 611*—who cannot complain that assignee brings scire facias proceeding in his own name. On a scire facias proceeding to revive a judgment assigned by the administrators of the judgment creditor to another, the judgment debtor cannot complain that the assignee brings the scire facias proceeding in his own-name. ,
    3. Judgment, § 610*—what ambiguity in papers in scire facias proceeding to revive is not ground for reversal. Ambiguity in the papers in a scire facias proceeding to revive a judgment as to the person seeking the relief is not ground for reversal where they are sufficient to enable it to be determined by whom relief is sought.
    4. Trial, § 12*—what may be placed on short-cause calendar. There is no merit in the contention that a proceeding by writ of scire facias to revive a judgment is not a suit at law and is therefore improperly placed on the short-cause calendar.
    5. Judgment, § 100*—when default of defendant is error. It- is error to default a defendant who has pleas undisposed of on file.
    6. Judgment—what does not affect liability of defendant under original in scire facias proceeding. A judgment rendered for defendant in a scire facias proceeding to make him a. party to a judgment and the dismissal of such proceeding do not affect the liability of the defendant under the original judgment.
    Edwin R. Harts, for defendants in error.

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

   Mr. Justice O’Connor

delivered the opinion.of the court.