text:
    Frank Gunter, Appellee, v. Mystic Workers of the World, Appellant.
    1. Insurance, $ 858

      —when jurisdiction obtained in action on benefit policy. Under section 7 of the Practice Act (J. & A. ¶ 8544), courts of record of the county of plaintiff’s residence have jurisdiction of an action on a benefit insurance policy, and process may issue to the county in which the insurance company has its head office lor service; but it does not follow that other courts are deprived of jurisdiction to hear and determine such a suit.
    2. Insurance, § 858

      —when jurisdiction of corporation obtained by City Court. Section 8 of the Practice Act (J. & A. ¶ 8545), providing that an incorporated company may be served with process by leaving a copy thereof with its president, if he can be found in the county in which the suit is brought, and if he shall not be found in the county, then by leaving a copy of the process with any agent of the company found in the county, is broad and inclusive and is sufficient to give a City Court jurisdiction of an insurance corporation on which service within' its territorial limits has been obtained in the manner provided by statute, even though neither plaintiff nor defendant are residents of such county.

      3. Insurance, § 904

      —when falsity of answers as to health in medical examination of insured shown. Evidence held sufficient to show that the statements made by insured in his medical examination as to his good health were untrue, that he had coughed for some considerable time prior to the issuance of the certificate, and that he had had hemorrhages on several occasions prior thereto.
    4. Insurance, § 753

      —what are warranties vitiating policy where untrue. Statements made by an insured in his medical examination that he had been in good health, and warranted in his application, which was a part of the benefit certificate, to be true, are warranties, and, if not true, vitiate the policy.
    Appeal from the City Court of Marion county; the Hon. W. O. Potter, Judge, presiding. Heard in this court at the March term, 1918.
    Reversed with finding of fact.
    Opinion filed November 1, 1918.
    Charles E. Sturtz and George B. Stone, for appellant.
    Fowler & Duty, 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.

   Mr. Presiding Justice Boggs

delivered the opinion of the court.

Appellee recovered a judgment for $714.58 against appellant in an action in assumpsit in the City Court of Marion. To reverse said judgment this appeal is prosecuted.

The declaration consisted of one special count in the usual form based on a benefit certificate of $1,000, set out in hcec verba, together with the consolidated common count. Appellant entered a limited appearance for the purpose of filing a plea to the jurisdiction of the court. The grounds alleged in the plea as reason why said City Court did not have jurisdiction are: First, that the cause of action did not arise within the corporate limits of the City of Marion; second, that appellee was a resident of the county of Saline and not a resident of the City of Marion in the county of Williamson, and that the appellant had its principal place of business in the City of Fulton, in Whiteside county. A demurrer filed by appellee to said plea was by the court overruled. Thereupon, appellant filed seven special pleas. Beplications were filed to these special pleas, all of which joined issue with the exception of the replication to the third special plea, which said replication averred new matter, and to this four rejoinders were filed. Appellee filed a traverse to the first, second, and third rejoinder and a surrejoinder to the fourth rejoinder. Without going into the detail of the pleadings it is only necessary to say that the plea filed on limited appearance raised the .question as to whether the City Court of Marion had jurisdiction of the case; the first, second, fourth, fifth, sixth and seventh pleas and the issues joined thereon raised the question as to whether or not Elroy Gunter, the assured in his application for insurance, misrepresented the condition of his health, and as to whether or not the representations made amounted to warranties or, if not warranties, were they misrepresentations of fact material to the question of the granting of said insurance.

The third plea, the rejoinder thereto and the surrejoinder raised the question as to whether or not Elroy Gunter tendered his dues and assessment for the month of July, 1917, to the secretary of the local chapter, and if he did not do so within the time specified by the by-laws, was there a custom or usage of such secretary for the accepting of the payment of the dues after the time designated in the by-laws that would amount to an estoppel upon the appellant to claim a forfeiture on the benefit certificate.

In support of its contention that said City Court' did not have jurisdiction of the subject-matter of this proceeding, appellant cites section 7 of the Practice Act (J. & A. ¶ 8544), which provides among other things that: “The courts of record of the county wherein the plaintiff or complainant may reside shall have jurisdiction of all actions hereafter to be commenced by any individual against any insurance company, either incorporated by any law of this State, or doing business in this State. And all process issued in any cause commenced in the county wherein the plaintiff may reside, wherein an individual may be plaintiff or complainant and any such company defendant, may be directed to any county of this State for service and return.” It is insisted by appellant that inasmuch as section 7 gives to the courts of record, in the county where the plaintiff suing an insurance company may reside, jurisdiction, with a provision for sending process to the other counties of the State, that therefore such courts are the only courts having jurisdiction to hear and determine the case.

Appellant also cites in support of said contention section 6 of the Practice Act (J. & A. ¶ 8543) which provides: “It shall not be lawful for any plaintiff to sue any defendant out of the county where the latter resides or may be found, except in local actions, and except that in every species of personal actions in law where there is more than one defendant, the plaintiff commencing his action where either of them resides, may have his writ or writs issued directed to any county or counties where the other defendant, or either of them, may be found.” Appellant also calls attention to section 1 of the Act in relation to courts of record, being section 240, chapter 37, of Hurd’s Revised Statutes (J. & A. ¶ 3289), which provides: ‘ ‘ That the several courts of record now existing in and for cities, and such as may hereafter be established in and for any city in this State, shall severally be styled 1 The City Court of (name of city),’ and shall have .concurrent jurisdiction with the circuit court within the city in which the same may be in all civil cases both law and chancery and in all criminal cases arising in said city, and in appeals from justices of the peace of said city, and the course of procedure and practice in such courts shall be the same as in the circuit courts, so far as may be.” Appellant contends that the jurisdiction given to city courts is limited, in civil cases, to causes of action that arise within the territorial limits of the city where such court may be located, and that the cause of action sued on in this case accrued in the county of Fulton, where the principal office of appellant company is located, for the reason that it was in the head office of said company in Fulton, Whiteside county, that the claim for insurance filed by appellee was refused. Appellant being a resident of Saline county, courts of record of that county would have had jurisdiction of the subject-matter of this proceeding, and process issued by the courts of record of that county could have been sent to Whiteside county, or any other county within the State for service. It does not necessarily follow, however, that because section 7 of the Practice Act (J. & A. ¶ 8544) gives to courts of record of the county where the plaintiff resides, jurisdiction in suits brought on an insurance policy, that it takes from all other courts jurisdiction to hear and determine suits of this character. No question is raised by appellant that the service had in this case was not sufficient to give the said City Court jurisdiction of the appellant company, provided said City Court had jurisdiction of the subject-matter of the proceeding.

Section 8 of the Practice Act (J. & A. ¶ 8545) provides: “An incorporated company may be served with process by leaving a copy thereof with its president, if he can be found in the county in which the suit is brought. If he shall not be found in the county, then- by leaving a copy of the process with any clerk, secretary, superintendent, general agent, cashier, principal, director,- engineer, conductor, station agent, or any agent of said company found in the county.” This section is broad and inclusive, and in our judgment is sufficient to give to a City Court jurisdiction of any corporation on whom service within its territorial limits has been obtained in the manner provided by statute.

In Peoria Ins. Co. v. Warner, 28 Ill. 429, the Supreme Court at page 432 says: “The single question presented by this record arises out of the following facts: The plaintiffs in error are a corporation established by the laws of this State, at Peoria, in the county of Peoria, to transact the business of marine and fire insurance. Its principal officers reside at Peoria, where it has its principal place of business; and it has also an office in the City of Chicago, in Cook county, and an agent residing there to attend to its business. The action was brought in the Superior Court of Chicago, by the defendant, who is a resident of Milwaukee, in the State of Wisconsin, on the record of a judgment which he had recovered against the plaintiffs in the County Court of Milwaukee.

“To the action of the Superior Court, the plaintiffs pleaded to the jurisdiction of the court, setting out in the plea the above facts. * * * The error assigned, is this judgment on the demurrer, and the only question is, had the Superior Court of Chicago jurisdiction of the case ? The plaintiffs in error insist that it had not, for the reasons that neither the plaintiffs nor the defendant resided there—that the cause of action did not accrue there, nor was the debt made payable there. The action of debt is a transitory action, and can be brought in the court of any county in which the defendant may be found.” The court then quotes the Act of 1853, which is, in effect, the same as section 8 of the present Practice Act (J. & A. ¶ 8545), and then at page 433 says: “This act being remedial in its character, ought to receive the most liberal interpretation. No injury can result from it to a corporation thus summoned, for the reason that the agent will not fail to give the necessary notice to his principal, so that he may prepare his defense, if he have one. Such an interpretation we endeavored to give this law, in the case of Mineral Point R. Co. v. Keep, 22 Ill. 9, and also in the case of Rock Island R. Co. v. Fell, 22 Ill. 333. There is no limitation in the act, restricting it to the principal place of business of the company, but it is sufficiently comprehensive to embrace any agent, where he may be found, in any county, provided the president of the company does not reside in the county where the process is issued.” This case was cited and approved in the case of Stephenson Ins. Co. v. Dunn, 45 Ill. 211.

In Knickerbocker Ice Co. v. Leyda, 128 Ill. App. 66, the Appellate Court of the Second District, by Justice Vickers, in discussing the question of what constitutes “the subject-matter,” when the question of jurisdiction of a City Court arises, on page 68 says: “The defendant filed in court a motion to dismiss the case on the ground that the cause of action did not arise within the City of Aurora and that therefore the City Court of Aurora had not jurisdiction of the subject-matter of the suit. If the court did not have jurisdiction of the subject-matter of the suit the judgment entered by it is a nullity and should be reversed without remanding the cause. Want of jurisdiction over the person may be waived, but lack of jurisdiction over the subject-matter cannot be waived and is fatal to the validity of the judgment on appeal. We are of opinion that the City Court of Aurora did have jurisdiction of the subject-matter and that the motion to dismiss was properly denied. Hurcules Iron Works v. Elgin, J. & E. Ry. Co., 141 Ill. 491.”

In the case of Security Ins. Co. v. Slack, 183 Ill. App. 579, this court specifically held that the fact that section 7 of the Practice Act gave to courts of record of the county in which a plaintiff may reside jurisdiction of all actions commenced by individuals against any insurance company, did not take from a City Court jurisdiction to entertain an action against an insurance company to recover on a policy of insurance in the county where the insured company might be located, or could be found. This court at page 581 says: “To sustain the claim that the City Court of East St. Louis had no jurisdiction in this class of cases, appellant refers to paragraph 7, chapter 110 of the Revised Statutes (J. & A. 8544) [after quoting said section further says]: Appellant insists that the City Courts are not ‘courts of record of the county’ within the meaning of this act and rely upon the case of Ladies of Maccabees of the World v. Harrington, 227 Ill. 511, as sustaining this doctrine. It is true that certain language is used in that case, which appears in general terms to support appellant’s position, but a careful reading appears to us to demonstrate that it is not intended to apply to the question here raised by appellant. * * * Here the suit was commenced by a resident of the city and service was had on appellant within the city limits, and it was not necessary to take advantage of the statute to issue process for service outside of the city. Section 1 of our statute, in reference to City Courts (J. & A. ¶ 3289), provides that they ‘shall have concurrent jurisdiction with the circuit courts within the city in which the same may be, in all civil cases, etc.’ We are of the opinion that in cases such as this, where the plaintiff resides and the defendant is served in the city where the court is located, the City Court has jurisdiction, and that the court below in this case properly refused to dismiss the suit for want of jurisdiction.” In view of the foregoing authorities, we hold that the City Court of Marion had jurisdiction of the subject-matter of this proceeding, and that it did not err in sustaining a demurrer to the plea to the jurisdiction.

It is next contended by appellant that the verdict of the jury is against the manifest weight of the evidence. The record discloses that Elroy Gunter made application for membership and insurance with appellant in January, 1916. The benefit certificate was delivered to him in February, 1916. Thereafter on August 29, 1917, said insured died. The insured in his application for said benefit certificate warranted his answers to the questions in the medical examination to be literally true, the language of the application being as follows: “I have verified each and every one of the answers and statements in this application for membership * * * and adopt them as my own, whether written by me or not, and declare and warrant that they are full, complete and literally true, and I agree that the exact, literal truth of each, shall be a condition precedent to any binding contract issued upon the faith of such answers and statements. I further agree that these answers and statements shall form the basis of the contract between me and the Mystic Workers of the World, and are offered by me as a consideration for the contract applied for, and are hereby made a part of any Benefit Certificate that may be issued on this application, and shall be deemed and taken as a part of such Certificate. * * * And I further agree that if any answer or statement in this application is not literally true, or if I shall fail to comply with and conform to any and all of the laws of said Mystic Workers of the World, whether now in force or hereafter adopted, that my Benefit Certificate shall be void.”

Among other questions propounded to the insured and the answers given thereto by him in the medical examination are the following: “Are you now of sound body, mind and health, and free from disease or injury?” “Yes.” “Are you now in good health?” “Yes.” “Have you within the last three years used any patent or proprietary medicine?” “No.” “Are you subject to, have you had, or have you now, any of the following diseases: Asthma?” “No.” “Spitting or coughing of blood? ” “ No.” “Difficulty in breathing?” “No.” “Tuberculosis?” “No.” “Consump tion?” “No.” “Cough (Habitual)?” “No.”

The acceptance slip, signed by the applicant on the 14th day of February, 1916, and which constituted a part of the contract sued upon, among other things contained the following provision: “I hereby warrant that I am in good health and free from disease, and have been in good health and free from disease continuously since the date of my medical examination for admission as a member of this society.”

Section 92 of the constitution and by-laws of defendant provides in substance: ‘‘ That wherever the words ‘application for membership’ ” or their equivalent are contained they shall be held to mean, include and cover the medical examination and all that is required to be in writing by an applicant, or for him, to complete membership.

Section 128 provides: “That the society shall not be liable to a member or the beneficiary of any member on account of death caused directly or indirectly by reason of any disability or death which shall be caused in whole or in part by any diseased condition or injury existing at the time such member becomes a member of the Order.”

The evidence in the record tends strongly to the effect that for some 4 or 5 years prior to his death, Elroy Gunter was in poor health and was practically unable to perform any labor. Numerous witnesses on behalf of appellant testified that for the last 4 or 5 years prior to insured’s death, and for at least 2 or 3 years prior to the date of the certificate sued on, the insured would have coughing spells, both in the daytime and in the night, and certain of the witnesses testified that insured had hemorrhages prior to the date of the application, and also certain of said witnesses testified that he had stated to them that he had had hemorrhages. Dr. J. F. Blanchard, a witness on behalf of appellant, testified that he made a professional visit on the insured some 4 or 5 years prior to the date of the trial, and which would have been some 2 or 3 years prior to the date of the certificate sued on, and found him suffering with an active hemorrhage of the lungs; that the hemorrhage was such at the time he did not try to interrogate him as to what brought it about; that he called on him the following day and that he was still suffering with an active hemorrhage; that he did not see him any more after that time. This witness also testified he had treated the insured some 15 years prior thereto for typhoid fever.

The witness Taylor Deaton testified that the insured stayed at his house in 1914 and 1915; that “he coughed every night some. A right smart at night, not so bad in the day; mostly at night. He took no treatment for it, but bought patent medicine, first one kind and then another he tried.”

Without referring specifically to the testimony of other witnesses who testified in connection with the matter of insured’s health, it is sufficient to state that it satisfactorily appears from the evidence of these witnesses that-he had coughed for some considerable time prior to the issuance of the certificate, and that he had had hemorrhages on several occasions prior thereto, one some 14 or 15 years prior to his death.

There was no evidence in the record contradicting the testimony of the foregoing witnesses. Under the holding of the Supreme Court and of the Appellate Courts of this State, the statements made by the insured in his medical examination were warranties, and, unless substantially true at the time made, would vitiate the certificate. Crosse v. Supreme Lodge, Knights and Ladies of Honor, 254 Ill. 80; Spence v. Central Accident Ins. Co., 236 Ill. 444; Peckham v. Modern Woodmen of America, 151 Ill. App. 95; Harvick v. Modern Woodmen of America, 158 Ill. App. 570; Order of Foresters v. Knowles, 113 Ill. App. 641.

In Crosse v. Supreme Lodge, Knights and Ladies of Honor, supra, at page 84, the court says: “Parties competent to contract are at liberty to enter into such agreements with each other as they see fit, and it is the purpose of the law and the function of the courts to enforce their contracts. Accordingly, the rule established in this State is, that where an application for life insurance is expressly declared to be a part of the policy and the statements therein contained are warranted to be true, such statements will be deemed material whether they are so or not, and if shown to be false there can be no recovery on the policy however innocently the statements may have been made. But warranties are not favored in the law, and if there is anything to be found in the application or certificate tending to show that the answers and statements were not intended by the parties to be regarded as warranties, such answers or statements as are not material to the risk and were honestly made in the belief that they were true will not present any obstacle to recovery. If such a construction may be reasonably given to the contract the statements will be considered as mere representations notwithstanding the policy states that they are to be deemed warranties, and if not material will not be available as a defense. (Continental Life Ins. Co. v. Rogers, 119 Ill. 474; Provident Sav. Life Assur. Society v. Cannon, 201 Ill. 260; Minnesota Mut. Life Ins. Co. v. Link, 230 Ill. 273.) In this case it was agreed that the answers made to the medical examiner should be warranties, and that any false or untrue statement or answer should operate to forfeit the rights of the beneficiary. There is nothing in the contract which would give any room for interpreting it differently from the language employed in it, and counsel seeking to sustain the judgment do not contend that such is the case. In any event, the answers made were material to the risk and did not relate to a matter of opinion or judgment concerning which there might be a mistaken but honest-belief.”

We hold in this case that the statements made by the insured in his medical examination with reference to his health were warranties, and would vitiate the policy unless substantially true; and we hold that the representations made by the insured for the purpose of obtaining the certificate sued on were representations of fact material to the contract, and would also vitiate the policy unless substantially true. This construction of said contract of insurance is borne out by the authorities above cited.

There being no conflict in the evidence in reference thereto, we find that the representations made by the insured with reference to the condition of his health were material to the risk, and were untrue and rendered void the policy or certificate of insurance. For the reasons stated this cause will therefore be reversed without remanding. The clerk of this court will incorporate the above finding of fact as a part of this judgment.

Reversed with finding of fact.


source: Caselaw Access Project

author: Mr. Presiding Justice Boggs

license: Public Domain

text:
    Joe A. Hobbs, Administrator, Appellee, v. Fairview Fluor Spar and Lead Company, Appellant.
    1. Mines and minerals, § 86

      —when negligence in failing to discover and report miss-shots not shown. Negligence on the part of a mine operator in failing to discover alleged miss-shots in a mine, in which charges of dynamite were set off by an outgoing shift, and to report them to the incoming shift, where injury was sustained by a bowlder breaker of the relieving shift upon striking a bowlder with his hammer, was not shown where it appeared that it was the duty of the bowlder breakers to gather up unexploded dynamite after charges, and, although there was a custom in the mine for the outgoing shift to compare the number of shots with the number of explosions, and, if there was a discrepancy in the number of explosions, to report to the foreman of the incoming shift, there was no evidence as to the number of shots prepared and fired on the day that deceased was Injured, or as to the number of explosions that were heard, and it further appeared that such test was uncertain because frequently more than one shot would be exploded at the same time.
    . 2. Mines and minerals, § 80

      —what is nature of obligation to furnish employee with safe place to work. The obligation of a mine owner to furnish his employees with a safe place to work has reference to the work or the physical surroundings and not to the work or contract on which an employee is working.
    3. Mines and minerals, § 80

      —when mine owner not negligent in failing to furnish reasonably safe place to work to employee. A mine owner was not negligent in failing to furnish a reasonably safe place to work for a mine bowlder breaker of a relieving shift, who was injured, upon striking a bowlder, by an explosion of dynamite remaining from shots set off by the outgoing shift, where it was the duty of the bowlder breaker to break such bowlder and also to look around for unexploded dynamite and carry it to a place of safety, and such explosion was not due to a miss-shot or missed hole but to a small unexploded portion of a charge.
    4. Death, § 48

      —when evidence of condition of health of deceased is admissible. In an action for negligent death, a physician who attended deceased should be permitted to answer a question as to the condition of health of the deceased, since it tended to show the physical condition of deceased and his ability to earn a livelihood.
    Appeal from the Circuit Court of Hardin county; the Hon. Julius C. Kern, Judge, presiding. Heard in this court at the March term, 1918.
    Reversed with finding of facts.
    Opinion filed November 1, 1918.
    William S. Bedal and James A. Watson, for appellant.
    James A. Denton, H. Robert Fowlbb and H. A. Evans, 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.

   Mr. Presiding Justice Boggs

delivered the opinion of the court.

An action on the case brought by appellee, administrator of the estate of John F. Smith, deceased, against appellant, in the Circnit Court of Hardin county, resulted in a verdict and judgment in favor of appellee for $2,000. To reverse said judgment this appeal is prosecuted.

The record discloses that John F. Smith, appellee’s intestate, was at the time of the injury which resulted in his death employed as a bowlder breaker in appellant’s Fluor Spar Mine in Hardin county. There were two shifts working in the stope, the night shift going on shortly before 7:00 in the evening and leaving at 5:40 in the morning; the day shift going on shortly before 7:00 a. m., and leaving at 5:40 p. m., there being intervals of about one hour and twenty minutes between shifts.

On July 20, 1915, deceased went to work in No. 3 stope at 7 o’clock in the morning on the 200-foot level in Blue Diggins Mine. This stope was a chamber abové the 200-foot level or drift, and it was from 200 to 350 feet long and reached by a bulkhead or manhole 800 to 1,000 feet from the shaft. The spar and rock shot down were dropped in the cars in the 200-foot level through bins. Bowlder breakers were employed to break up the pieces of rock and spar which were too large to go through the bins.3

On entering the mine on the 20th day of July, Smith began breaking bowlders with a sledge hammer of about 12 pounds weight; he had worked but a short time when an explosion was heard by the men operating in the mine. Appellee’s intestate called for assistance and two men engaged in the mine ran to his assistance and found his body filled with spar fragments and two holes of considerable size in his groin and a severe injury to his kneecap. Shortly thereafter gangrene set in and a few days later he died.

It was stipulated on the trial of said cause that appellee was the duly appointed and qualified administrator of the estate of John F. Smith, deceased, and that appellant company had elected not to be bound by the Workmen’s Compensation Act, and that it had filed its election with the Industrial Board and had given notice to its employees according to the statute.

The declaration consists of two counts. The first count is based on the alleged duty of appellant to discover miss-shots in said mine and to report the same to the ongoing shift; that there was a miss-shot and that it was' the duty of appellant to have discovered the same and to have advised or warned appellee’s intestate thereof, and charges a failure on the part of appellant so to do.

The second count alleges that after the night shift had fired their shot there remained a miss-shot, which constituted a dangerous condition, the language of the declaration, being, ‘ ‘ That, by reason of the existence of the said missed hole thereat and the want of knowledge of the same by plaintiff’s intestate, the place in said drift where plaintiff’s intestate was then and there required to work, then and there became and was no longer reasonably safe for plaintiff’s intestate to pursue his work in reasonable safety as the employe of said defendant; that the existence of the said missed hole was then and there known, or, by the exercise of reasonable care and skill, could have been known by the defendant; that the defendant then and there carelessly and negligently suffered this place in which plaintiff’s intestate was required to work to be and to remain in said unsafe condition to the injury of plaintiff’s intestate.” Said declaration then alleges that plaintiff’s intestate struck a large bowlder a heavy blow with a sledge hammer in order to burst the same in small fragments for the removal thereof, and that by reason thereof the dynamite in said missed hole exploded, giving to appellee’s intestate a mortal wound from which he died. A plea of the general issue was filed to this declaration; a trial was had resulting in a verdict and judgment as above set forth.

It is first contended by appellant that the declaration fails to state a cause of action against appellant. No demurrer was filed to this declaration and we are inclined to hold that after verdict the declaration would be sufficient.

It is next contended by appellant that the record does not disclose that it has been guilty of any negligence as charged in the declaration and that notwithstanding appellant has elected not to be governed by the Workmen’s Compensation Act the burden of proving negligence on the part of appellant still remains before a recovery can be had, and that no negligence has been proved.

The declaration in both counts alleges that there was a missed shot or missed hole in the mine at the time the day shift came on. In other words, at the time deceased entered the mine to work it was the duty of appellant to have discovered this missed shot or hole and to have warned appellee’s intestate of its existence. On the other hand, appellant contends that the record does not show the missed shot or missed hole as charged in the declaration, and that the most that the evidence shows is that a certain piece of dynamite remained unexploded in the bowlder, or part of the bowlder shot down, and that it was the explosion of these particles or piece of dynamite that caused the explosion in question and the injury to appellee’s intestate. Appellant further contends that under the evidence in this case it was the duty of appellee’s intestate as a bowlder breaker to examine the stope or room for fragments of dynamite remaining unexploded and to gather the same up and place them in a magazine provided for said purpose, and that the bowlder breaker was the only person charged with this duty.

The evidence in the record clearly supports this contention on the part of appellant, the testimony in the record being to the effect that the duties of appellee’s intestate as a bowlder breaker “were to collect powder, clean up all powder he found, take it to the magazine, throw all the dirt down out of the stope and break bowlders. The purpose of breaking the bowlders is to break them so they will go through the bins. It is the bowlder breaker’s duty to look about for powder or dynamite in a bowlder or any caps or anything of that kind. There is nobody else to make the inspection for him.”

The record further discloses that appellee’s intestate had been engaged in the business of bowlder breaker for appellant for something like a year, and that the dynamite that might remain unexploded in holes in the bowlders can be easily detected, as the dynamite was of a different color than the spar. Counsel for appellee do not seriously controvert the proposition that it was the duty of appellee’s intestate to gather up the pieces of dynamite and to make the examination as above specified, but say that his failure so to do was merely contributory negligence, and that the duty still remained with appellant to call attention of the ongoing shift to any missed holes as charged in its declaration. The only evidence of any character offered by appellant in support of its contention is that there had been a custom in this mine for the outgoing shift to count the number of shots prepared and fired by them and then to count the number of explosions, and if the number of explosions did not equal the number of shots prepared and fired they would so report to the foreman of the oncoming shift.

The record, however, discloses that frequently more than one shot would be exploded at the same time, and there was nothing certain with reference to this test. The record in this case is absolutely silent on the number of shots that were prepared and fired by the outgoing shift on the day that appellee’s intestate was injured, or as to the number of the explosions that were heard. There is nothing to show that the number of explosions did not equal the number of shots placed and fired. If they did equal, no report would have been made. We think the evidence wholly fails to support the allegation of the first count of the declaration.

The second count is a common-law count and charges the failure of appellant to furnish appellee’s intestate with a safe place to work. It is contended by appellant that the obligation of an employer to furnish his employees with a safe place to work has reference to the physical surroundings and does not have reference to the work or the contract on which the employee is working, and we think this point is well taken.

In the case of Keefe v. Armour & Co., 258 Ill. 28, being a case where an employee was suing for damages on account of injuries suffered by the bursting of a tank which he was repairing as a boiler maker, the court in discussing an instruction with reference to the duty of an employer to furnish his employee with a safe place to work says: “The rule stated was correct, but it relates to the condition of premises, buildings and things which properly constitute a place for work. The rule is illustrated by various cases, such as Illinois Steel Co. v. Schymanowski, 162 Ill. 447, where a servant was required to work next to a dangerous pile of ore; Iroquois Furnace Co. v. McCrea, 191 Ill. 340, where a part of a dump pile had been removed so as to leave a perpendicular wall, making it dangerous for a servant to walk over it in the nighttime; Western Stone Co. v. Muscial, 196 Ill. 382, where the servant was required to load dirt into a wheelbarrow next to a perpendicular wall which was dangerous; Libby, McNeill & Libby v. Banks, 209 Ill. 109, where the defendant maintained a platform which made the place for the performance of the servant’s duty dangerous; and Acme Harvester Co. v. Chittick, 230 Ill. 558, where there was a slippery hard-maple floor upon which the servant was required to stand. The duty includes the element of locality, and has no reference to anything except the keeping of the premises physically safe (Nordhaus v. Vandalia R. Co., 242 Ill, 166), and the rule could not possibly be applied to the facts of this case.”

Tn the case of Peterson v. Chicago & O. P. El. R. Co., 260 Ill. 280, the Supreme Court at page 283, in discussing an instruction to the effect that it was the duty of the master to exercise reasonable care to furnish the servant a reasonably safe place in which to work, says: “As an abstract rule of law the proposition announced in the instruction is unobjectionable, but it has no application to the facts. In neither the pleading nor the evidence is there any indication that the place where the plaintiff was working was unsafe, except the fact that he was hurt there. There was no evidence that the elevated structure itself, the rails, ties, switches and surroundings, were in any respect defective or could have been made safer in view of the purpose for which they were designed. The rule requires of the master the duty only of keeping the premises physically safe and has no reference to anything else. (Keefe v. Armour & Co., 258 Ill. 28; Nordhaus v. Vandalia R. Co., 242 Ill. 166.) It was therefore inapplicable to this case.”

The bowlder which appellee’s intestate was breaking at the time of the explosion was a part of the material on which appellee’s intestate was to work, and it was his business as disclosed by the record to examine the bowlder to ascertain if there was any unexploded powder in or about the same, and if any was found to gather the same up and place it in a magazine, and it was in no sense a part of the physical surroundings of his working place as contemplated by the foregoing cases.

It should be further observed that the explosion which occurred was not an explosion from a missed hole or miss-shot, for the witnesses who testified in reference thereto stated that no rock was shot down, and no one was injured in the mine except appellee’s intestate. One witness testified on behalf of appellee’s intestate that, “It was not more than half a stick of dynamite that exploded, in his judgment,” whereas, the evidence is to the effect that from three to six sticks of dynamite are placed in each hole where a shot is to be fired. The evidence does not sustain the declaration that it was a miss-shot or missed hole. We hold, therefore, that the record does not disclose a failure on the part of appellant to furnish appellee’s intestate a reasonably safe place in which to work.

It is next contended by appellant that the court erred in refusing to allow the physician who waited on appellee’s intestate to state the condition of his health. We think the court erred in refusing to allow the question to be answered, as it tended to show the physical condition of appellee’s intestate and his ability to earn a livelihood for his family. In other words, it went to the damage that his next of kin had suffered. It was not offered for the purpose of defeating the cause of action and would not have been proper for that purpose.

It is next contended, by appellant that the court erred in its instructions. It will not be necessary for us to discuss this assignment of error for the reason that in our judgment no right of recovery is shown in this case.

For the reasons above set forth the judgment will be reversed, and the clerk will incorporate as a part of the judgment in this case the following finding of facts: “We find as an ultimate fact that appellant was not guilty of the negligence charged in either count of the declaration.”

Reversed with finding of facts.


author: Mr. Justice Higbee

text:
    William J. Luthmers, Appellee, v. Samuel E. Hazel, Appellant.
    1. Malicious prosecution, § 67

      —how bad reputation of plaintiff may not be shown. In an action for malicious prosecution, while evidence showing plaintiff’s general reputation in the community at the time of the act complained of is competent, his had reputation cannot be shown by proof of specific acts.
    2. Malicious prosecution, § 82

      —when forgery of signature to note is question for jury. In an action for malicious prosecution growing out of plaintiff’s arrest and prosecution on the charge of having forged defendant’s- signature to a note, where the evidence is conflicting as to whether or not the signature was defendant’s, it is for the jury to determine whether or not defendant signed it.
    3. Malicious prosecution, § 66

      —when copy of order of nolle prosequi is admissible to show termination of prosecution. A copy of the order of nolle prosequi entered in a case on which an action for malicious prosecution is based is competent to show plaintiff’s discharge for the purpose of showing the termination of the case, and especially is such a copy admissible when not entered in the case upon which the malicious prosecution action is based but in one of a series of transactions which tend to show that malice actuated the defendant.
    4. Malicious prosecution, § 65

      —what is proper to be considered on question of malice. In an action for malicious prosecution in which it appears that a series of prosecutions were instituted, the fact that after a nolle prosequi was entered in one of the series defendant did not cease to prosecute plaintiff is proper to be considered by the jury on the question of defendant’s malice.
    5. Malicious prosecution, § 13

      —what is effect of following advice of reputable attorney in prosecution of action. In an action for malicious prosecution based on a prosecution of plaintiff on the charge of forging defendant’s signature to a note, the fact that defendant consulted and followed the advice of a reputable attorney is not sufficient to establish that he acted in good faith without malice and with probable cause.
    6. Malicious prosecution, § 13

      —when following advice of reputable attorney is no defense. In an action for malicious prosecution, the fact that defendant followed the advice of a reputable attorney does not relieve him from liability where he misrepresented the facts to his attorney.

      7. Malicious prosecution, § 21

      —u>hat essential to sustain action for. Malice and lack of probable cause are essential to sustain an action for malicious prosecution.
    8. Malicious prosecution, § 84

      —malice as question of fact. In an action for malicious prosecution, malice is a question of fact.
    9. Malicious prosecution, § 83

      —probable cause as. question for jury. In an action for malicious prosecution, whether there was probable cause is for the jury to determine and from all of the evidence, not from a part of it.
    10. Malicious prosecution, § 74

      —when malice and lack of probable cause shoum. In an action for malicious prosecution, based on prosecutions relative to a note held by plaintiff which he alleged was executed by defendant, where it appears that the latter failed to secure possession of the note in replevin proceedings which he brought for that purpose, failed to have plaintiff indicted in his own county, had him enticed to another county, induced him to offer the- note for sale there, caused him to be imprisoned in jail three times and suffered him to be indicted three times in such county after being discharged on preliminary hearing in his own county, the grand jury failing to return an indictment, and after being discharged after a preliminary hearing in a Municipal Court of such other county, the jury are warranted in finding that there were malice and lack of probable cause on defendant’s part.
    11. Malicious prosecution, § 98

      —when verdict not excessive. In an action for malicious prosecution, a verdict for $16,000 is not excessive, where it appears that plaintiff was called upon to defend a civil suit, twice subjected to preliminary hearings, once in a-foreign county, three times indicted in a foreign county, required to get ready to go to trial on three indictments at two different terms of a court in a foreign county, tried on one of those indictments and found not guilty by the jury, three times imprisoned in jail, twice in a foreign county, once under extremely disgusting and revolting conditions, enticed out of his county and made to go out of his jurisdiction to defend himself in all but two of his numerous arrests and trials, that he had to expend $2,600 in defending himself, and that plaintiff, as shown by the proof, is wealthy.
    12. Malicious prosecution, § 58

      —what proof required in action for. No presumption can be made to uphold a verdict for plaintiff in an action of malicious prosecution, but all the facts necessary to make out a case must be proved by a preponderance of the evidence.

      Appeal from the Circuit Court of Jasper county; the Hon. William B. Weight, Judge, presiding. Heard in this court at the October term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed November 1, 1918.
    S. J. Gee, A. M. Gee, P. W. Barnes and John C. Bitter, for appellant.
    Lewis & Lewis and Davidson & Fithian, 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.

   Mr. Justice Higbee

delivered the opinion of the court.

William J. Luthmers, appellee, started suit in the Circuit Court of Biehland county, to the April term, 1916, against Samuel E. Hazel, appellant, to recover damages in the sum of $25,000 for alleged malicious prosecution and false imprisonment.

A praecipe for summons was filed in the Circuit Court of Biehland county and summons was issued from and a declaration, consisting of six counts, filed in said court. In some manner not shown by the record, a change of venue seems to have been taken to the Circuit Court of Jasper county, where a plea of not guilty was filed by appellant and all subsequent proceedings were had in that court. The case was tried before a jury in said Circuit Court at the April term, 1917, and a verdict rendered in favor of appellee in the sum of $16,000. Motions for new trial and in arrest of judgment were overruled and judgment rendered on the verdict. The defeated party brings the case to this court by appeal, assigning a number of errors.

On March 9, 1914, appellee, William J. Luthmers, a piano tuner, was living at Olney, Biehland county, Hlinois, where he had then resided about 12 years. At that time appellant, Samuel E. Hazel, a former farmer, the owner of large land interests with oil underlying same, and of stock in various banks, was engaged as a merchant at OIney, where he had then resided about 5 years. Appellee claims that on said date he sold to appellant a one-half interest in a patented lock-nut invention for $20,000, taking in payment therefor appellant’s note dated that day, due in 90 days, for such sum. Appellee claims the transaction was closed and the note signed in appellant’s store in OIney; that appellant made some objection to the bill of sale and he rewrote it, and later in the day called at the store and left the bill of sale with Howard Hazel, appellant’s son, appellant not being at the store at that time. Howard Hazel’s testimony corroborates appellee as to his being at the store and leaving with him the bill of sale. They contradict each other as to what was said. Appellant disclaims the execution of the note, avers it is a forgery and denies the entire transaction. He claims he was sick and not at the store on that day, and in that he is corroborated by his son and some other evidence. A few days later appellee tried to borrow money from a local bank, offering the note in question as collateral, but the loan was refused. Shortly after that appellant attempted to get possession of the note by suit in replevin but failed. Still later appellant made complaint before a justice of the peace and had appellee arrested on a charge of forgery in connection with the note in question. Appellee took a change of venue, was bound over to await the action of the grand jury and his bail was fixed at $500. He was confined in jail 2 days before he could give bail. The Bichland county grand jury, however, failed to indict him and he was discharged and his bail released. There was some testimony to the effect that after the replevin suit and attempt to have appellee indicted by the grand jury of Bichland county, appellant stated that if he could get appellee to .Chicago he would railroad him to the penitentiary, although appellant denies making any such statements. Appellant then employed members of the Bums Detective Agency to assist him. One of the detectives came to Olney in disguise, formed the acquaintance of appellee and some of his friends and gained his confidence. The detective represented to appellee that he had a brother, a banker in Missouri, who would buy the note and he showed appellee a letter and a telegram with reference to such proposed transactions purporting to be from the brother. He also arranged with appellee to go to Chicago to meet the brother, who he said wanted to buy the note. He paid appellee’s expenses to that city, where they met the purported brother, he being Clarence Tobie, another Burns’ detective, who was there by previous arrangement with appellant’s attorney, as were also appellant and his attorney. After some time appellee’s note was mentioned. He offered to sell it and the detectives got it in their possession and had appellant make complaint charging appellee with forging the same. The complaint was made before a judge of the Municipal Court of Chicago and was sworn to by appellant. Appellee was then taken to the office of the State’s Attorney of Cook county and given a very severe examination by representatives of that office. He was then taken to the Harrison street station jail and put in a cell, where he remained that day, the following night and until about 9 o ’clock the next day. Afterwards he was brought before the judge of the Municipal Court who issued the warrant and after a preliminary examination was discharged. There were two men besides appellee in the cell where he was confined and neither chair nor bed. Later another man was put into that cell who was intoxicated and vomited over the cell and wallowed in his own filth. The other three inmates, including appellee, stood on an iron bench swung from the wall of the cell all night. J. C. Bitter, one of appellant’s attorneys of record, and appellant were present at the hearing before the Municipal Court when appellee was discharged. Mr. Bitter was present or directed all legal proceedings above detailed, and appellant seems to have had knowledge of all plans made and steps taken in this connection. After appellee was discharged by the Municipal Court, the State’s Attorney of Cook county refused to give him his note and later had him indicted by a grand jury of Cook county on a charge of forgery of the $20,000 note in question in Chicago. Appellee’s bail was fixed at $1,500, which made it necessary for him to employ bondsmen, costing him $75. He, with his counsel and witnesses, appeared for trial on that indictment at the proper time, but appellant, his counsel and witnesses failed to appear for trial, the case was dismissed for want of prosecution and appellee discharged. The State’s Attorney of Cook county continued to hold the note in question and at the November term following had appellee indicted by another Cook county grand jury on a charge of attempting to obtain money from Clarence Tobie, one of the detectives, by means of a confidence game,'and also on a charge of forgery of the note in question in Cook county with intent to defraud appellant. Appellee was again arrested and confined, in jail 2 days before he could arrange to give bail for his appearance at the January term, 1916, of the Criminal Court of Cook county. His bail was fixed at $5,000 on each indictment, and that time it cost bim $225 for bondsmen.

At the January term, 1916, of said court, appellee appeared with his counsel and witnesses, ready for trial. The State’s Attorney then dismissed the case, charging him with attempting to obtain money from Clarence Tobie by means of a confidence game and appellee was discharged and released under that indictment. At that time and place a trial was had under the indictment charging him with forgery of the note in question, in Chicago, with intent to defraud appellant, and the jury found appellee not guilty and he was discharged. At this trial also appellant and his attorney, Mr. Bitter, were present. Appellee has paid out for bondsmen, attorney fees and other expenses in his defense the sum of $2,600. The declaration made the usual allegations as to the name, fame and character of appellee and set forth the injury to him resulting from the alleged malicious prosecution and false imprisonment, and there was a plea of not guilty. Evidence was admitted to show that some 10 or more years before the alleged forgery appellee had been placed in jail on minor charges. Evidence showing general reputation of appellee in the community at the time was competent (Rosenkrans v. Barker, 115 Ill. 331), but bad reputation cannot be proved by specific acts. Waters v. West Chicago St. R. Co., 101 Ill. App. 265.

On the question, whether the signature to the note in dispute was appellant’s signature,' appellee had twenty-two witnesses and appellant had fifteen. It was clearly a question of fact for the jury to determine whether appellant did or did not sign the note, that is, whether or not appellee was guilty of forgery, and under the record in this case the finding of the jury on that point should not be disturbed. It is claimed by appellant that the court erred in admitting in evidence, without special limitation, a copy of the order of nolle prosequi in the Criminal Court in Cook county. It has been held that the copy of the order of nolle prosequi entered in a case which was the basis of an action for malicious prosecution was error. Gentzen v. H. M. Hooker Co., 173 Ill. App. 127. It is always competent, however, to show a discharge in such a case for the purpose of showing the termination of the suit. Tumalty v. Parker, 100 Ill. App. 382; Enright v. Gibson, 119 Ill. App. 411. But here the nolle prosequi referred to was not entered in' the case which was the basis of this suit but was one of a series of transactions which tended to show that malice actuated the appellant. The fact that, after the nolle prosequi was entered in said case, appellant did not cease to prosecute appellee, was proper to be considered by the jury upon the question as to whether appellant was really actuated by malice in the various proceedings he instituted and the steps he took to prosecute appellee. It appears that appellant consulted and followed the advice of an attorney, whose reputation and ability are not questioned. That alone does not establish the fact that he acted in good faith, without malice, and that there was probable cause. In considering this case we must have constantly in view the question of who executed the note in controversy. In the view which the jury must have taken of the case, it was not necessary for appellant to consult an attorney to determine whether it was probable that appellee was guilty. Appellant knew whether or not he signed it and whether or not appellee was guilty. It is not a case where he might have been mistaken, and where his good faith and the probability of the facts being as he really thought they were would relieve him. It was not a question whether he was justified in reaching the conclusion he did. If appellant really signed the note, he misrepresented the facts to his attorney, and therefore he cannot be excused or relieved from liability because he acted on his attorney’s advice. William M. Ross & Co. v. Innis, 35 Ill. 487; Roy v. Goings, 112 Ill. 656. Malice and lack of probable cause are essential to sustain an action for malicious prosecution. Leidig v. Rawson, 2 Ill. (1 Scam.) 272. Malice is a question of fact' for the jury. The jury having 'concluded that appellant signed the note would have naturally found that there was lack of probable cause. When the lack of probable cause was established, malice could reasonably be inferred from the facts and circumstances in proof. (Leidig v. Rawson, supra; Harpham v. Whitney, 77 Ill. 32.) Whether there was probable cause also was for the jury to determine and does not depend upon part but all the evidence. Hirsch v. Feeney, 83 Ill. 548.

In this case appellant failed to get possession of the note in the replevin case, failed to have appellee indicted in his own, Richland county, had him enticed to Cook county, induced him to offer the note for sale there, made complaint there that appellee forged the note in Cook county, caused him to be imprisoned in jail three times and suffered him to be indicted three times in Cook county after being discharged on preliminary hearing in his own county, the grand jury failing to return an indictment, and after being discharged after a preliminary hearing in the Municipal Court of Cook county. This constitutes such a chain of facts and circumstances that the jury were warranted in concluding that there were both malice and lack of probable cause on the part of appellant.

Appellant contends that the judgment is excessive and should be reversed on that ground. The amount is large but considering that appellee was called upon to defend a civil suit, twice subjected to preliminary hearings, once in a foreign county, three times indicted in a foreign county, required to get ready to go to trial on three indictments at two different terms of a court in a foreign county, tried on one of those indictments and found not guilty by the jury, three times imprisoned in jail, twice in a foreign county, once under extremely disgusting and revolting conditions, enticed out of his county and made to go out of his jurisdiction to defend himself in all but two of his numerous arrests and trials, that he had to expend $2,600 in defending himself, that appellant, as shown by the proof, is wealthy, and the other facts and circumstances, we do not feel called upon to disturb the judgment because of the amount thereof. In Mexican Cent. Ry. Co. v. Gehr, 66 Ill. App. 173, a judgment for $40,000 was permitted to stand.

Numerous authorities were cited in support of the proposition that no presumption can be made to uphold a verdict of this kind, and all the facts necessary to make out a case must be proved by a preponderance of the evidence. This is undoubtedly the law, but nothing in this record warrants us in holding that appellee failed to prove all the facts necessary to make out a case by a preponderance of the evidence.

Finding no reversible error the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Joe Moreen, Appellee, v. Will Devillez, Appellant.
    1. Automobiles and garages, § 3

      —when instruction in action for injury to colt is misleading. In an action to recover for injuries to a colt struck by an automobile on a highway, where the question of defendant’s care is contested, it is error to instruct that it was defendant’s duty to use reasonable care to avoid injuring the colt, as such instruction is misleading as appearing to assume that he did not exercise such care.
    2. Automobiles and garages, § 3

      —when instruction in action for injury to colt is erroneous. In an action to recover for injuries to a colt struck by an automobile on a highway, where the reasonableness of the speed at which the automobile was driven is in dispute, it is error to instruct that it was defendant’s duty to drive at a speed which was reasonable and proper, having regard to the traffic and the use of the highway, so as not to injure the horse, as such instruction assumes that he was not driving the automobile at a reasonable and proper speed under the circumstances, and ignores the question of plaintiff’s negligence.
    3. Automobiles and garages, § 3

      —when instruction on wilful negligence of defendant in striking colt is erroneous. In an action to recover for injuries to a colt struck on a highway by an automobile, an instruction that although the jury believed from the evidence that plaintiff’s negligence contributed to the injury, yet if they believed therefrom that defendant was “wilfully negligent” in driving his car and could have avoided the injury, then plaintiff is entitled to recover, Is erroneous where there was no proof tending to show that defendant intended to inflict the injury, and further because it authorizes a verdict for plaintiff even though the jury believed that his negligence contributed to the injury.
    Appeal from the County Court of Saline county; the Hon. C. D. Stilwell, Judge, presiding. Heard in this court at the March term, 1918.
    Reversed and remanded.
    Opinion filed November 1, 1918.
    W. F. Scott, for appellant.
    Fowler & Bumsey, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.

Joe Moreen, appellee, brought suit against Will Devillez, appellant, before a justice of the peace, to recover damages for an injury to his two-year-old colt which was struck by appellant’s automobile. The case was appealed to the County Court of Saline county and tried before a jury, which assessed appellee’s damages at $100. After overruling motions for a new trial and in arrest of judgment, the court rendered judgment on the verdict in favor of Moreen, and Devillez has brought the case to this court.

In April, 1916, appellee was moving his personal property. It was loaded on three dray wagons. The colt above mentioned was tied by a rope 2% feet long to the middle stake at the rear end of the front wagon. On that wagon were an upright piano, dresser and other furniture and on top of them were piled rugs and clothing several feet high. Appellee was traveling west and the wagons were about 35 feet apart. Some furniture on the middle wagon became loose and all three wagons were pulled to the north side of the road and stopped. Appellee, who was driving the rear wagon, and Boy Davis, who was driving the middle one, dismounted and adjusted the furniture. While they were so doing, appellant was seen approaching in his automobile going east. There was a hill about a quarter of a mile west of where the wagons stopped but the ground between the two places was level. Some gipsy wagons traveling east were about 75 feet west of appellee’s front wagon, and between them and the hill there was a soft place in the road. At the point where appellee’s wagons, stopped, the road was from 18 to 20 feet wide. His wagons stopped with the right or north wheels about 1% feet from the drain ditch at the north side of the road. Appellant claims to have sounded his alarm before reaching the gipsy wagons, which he passed by going on their left side, as they were traveling in the same direction he was, but he does not claim to have sounded an alarm after that. Appellee and his drivers stated that they did not hear the alarm, but all admit seeing appellant’s car approaching them at the hill. As appellant passed to the south of appellee’s wagons he could not see the colt tied at the rear of the front wagon because of the load on the same. The speed at which appellant was going when he passed appellee’s wagon is disputed. Appellant claims it was from 12 to 15 miles an hour and appellee’s witnesses claim it to have been as much as 20 miles an hour. When appellant’s car passed the rear of the front wagon the hub of the left front wheel of the automobile struck the colt and broke its femur bone in the left leg about 6 or 8 inches above the stifle joint. On the advice of a veterinary surgeon the colt was afterwards killed. After striking the colt, appellant stopped his car within about 18 feet of the place of contact. Just before it was struck, the driver of the second wagon, who had just started to remount after adjusting the furniture, noticed that the colt was standing across the center of the road, its forequarters to the north of the center and its hindquarters to the south. The right wheels of the automobile ran within about 1% feet of the drain ditch at the south side of the road. There was sufficient room to pass and the automobile would not have come in contact with the colt if the colt had not got its hindquarters to the south of the center of the traveled track, which was about the center of the road.

Appellant presents serious objections to the first, second, third, fourth and fifth instructions given at the request of appellee. While the third and fifth are not free from criticism, we do not consider them as seriously objectionable. The first instruction told the jury that it was the duty of appellant to use reasonable care to avoid injuring the colt. This instruction was misleading because it appears to assume that appellant was not using such care on the occasion of the injury, which was one of the contested questions. The second informed the jury that it was the duty of appellant “to have driven his said automobile at a speed which was reasonable and proper, having regard to the traffic and use of the said highway so as not to injure the horse.” This instruction assumes that appellant was not driving his automobile at a reasonable and proper speed under the circumstances, which was also one of the questions in dispute. It also ignores the question whether there was negligence on the part of appellee, and appears to state a liability regardless of that question, which made the instruction erroneous. In the case of Petty v. Maddox, 190 Ill. App. 381, which was a suit for damages, for the killing of a horse by an automobile, it was held that an instruction requiring the operator of the car to use such care and caution as would prevent injury to the person or property of other persons rightfully on the highway was erroneous, as making the operator an insurer of the property of others. Appellee’s fourth instruction advised the jury that although they might believe from the evidence that appellee’s negligence contributed to the injury of the colt, yet if they further believed therefrom that appellant was wilfully negligent in driving his said automobile and could have avoided the injury to said colt at the time the injury was done, by the exercise of reasonable care on Ms part, that then appellee would be entitled to recover. The term “wilfully negligent” was not applicable to this case as there was no proof tending to show that appellant intended to inflict an injury. In Gordon v. Stadelman, 202 Ill. App. 255, which was a sMt to recover damages for the death of the plaintiff’s intestate, caused by his being struck by the defendant’s automobile, it was said: “We think the question of wilful negligence was properly taken from the consideration of the jury, there being no evidence that would justify the inference that defendant’s conduct was such as ‘would show a general intent to inflict an injury’ or negligence of such a high degree as would be deemed equivalent to a wilful or wanton act.” This instruction was also erroneous because it authorized a verdict in favor of appellee, even though the jury believed that his negligence contributed to the injury of the colt.

In Cummins v. Cleveland, C., C. & St. L. Ry. Co., 147 Ill. App. 291, this court said in reference to an instruction in a personal injury case, which had the same objectionable feature: “The vice of this instruction was that it permitted a recovery in the case mentioned provided the plaintiff’s own negligence did not materially contribute to the injury. The correct rule of law as laid down by our courts is that ‘the injury must be attributable to the defendant’s own negligence and to that alone in order to justify recovery against him. If occasioned in any degree by the plaintiff’s negligence, he or she is without redress.’ ” The case was close and the facts strongly contested, therefore, it became necessary that the jury should be correctly instructed as to the law. It follows that for the errors in instructions, the judgment of the County Court should be and accordingly is reversed and the cause remanded.

Beversed and remanded.


text:
    Nina Carter, Administratrix, and Nina Carter, Appellees, v. Employees’ Benefit Association of American Steel Foundries, Appellant.

      Insurance—when false statements in application as to habits and as to benefieiary invalidate benefit certificate. Where the application signed by an applicant for membership in a benefit association provides that the membership and the rights and benefits arising therefrom shall be forfeited by any untrue or fraudulent statements by him to the medical examiner, or by any concealment of facts in the application, or by any attempt on his.part to defraud or impose upon the association, and the by-laws provide that membership of any member guilty of disreputable or unlawful conduct shall be canceled, and the applicant certifies that he is correct and temperate in his habits and has answered the questions put to him truly, fully and correctly, and it appears, in an action to recover death benefits under such certificate, that the applicant named as the beneficiary a certain woman, stating her to be his wife, and concealed the fact that she was not his wife and that another woman was his wife and also that he had a child by her, there can be no recovery under the certificate.
    Appeal from the City Court of Granite City; the Hon. M. R. Sullivan, Judge, presiding. Heard in this court at the March term, 1918.
    Reversed with finding of facts.
    Opinion filed November 1, 1918.
    William E. Wheeler, for appellant; Pam & Hurd, of counsel.
    E. L. Maher, for appellees.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellees brought suit in the City Court of Granite City to recover certain death benefits alleged to be due from appellant by reason of a certificate of membership issued by it to Tom Carter, deceased. The trial was before the court without a jury upon a stipulation of facts, and no propositions of law were presented. Judgment was rendered in favor of appellees for $720, and an appeal taken to this court.

Appellant was a voluntary, unincorporated organization jointly formed by the American Steel Foundries and its employees. On November 9, 1916, Tobias Carter, an employee of the American Steel Foundries, also known as Tom Carter, made application for membership to appellant, signing it as T. Carter, which was approved November 16, 1916, and a certificate of membership issued to Tom Carter. Carter continued an employee of the American Steel Foundries until March 28, 1917, at which time he died of lobar pneumonia after a short illness. From November 9, 1916, continuously until about the middle of February, 1917, Carter was living with one Ada Taylor, alias Ada Carter, holding her out as his wife, but about February 15,1917, he left her and moved to a boarding house in North Venice, Illinois. Carter and Ada Taylor were never married, and during all the time they lived together he had a wife, Nina Carter, appellee, and a daughter, Vivian Carter, aged about 11 years, whom he left as his widow and heir at law. In his application for membership Carter directed that the death benefits should be payable to “Ada Carter, wife, now •residing at same address, if living at the time of my death, or if not living, then to my wife, if I am married at the time of my death; or if I have no wife living, then to my children, collectively.” Appellant had no information concerning the relationship existing between Carter and Ada Taylor, alias Ada Carter, except that contained in the application for membership and his statement to the medical examiner, and did not know of the existence of Nina Carter and Vivian Carter until after the death of Carter. Appellant first learned that Ada Taylor, alias Ada Carter, was not the wife of Carter and that Nina Carter was his wife about May 18, 1917, at which time it tendered Nina Carter, administratrix, the sum of $3.60, the total premiums paid by Carter, which appellee declined to accept and which tender has been kept good. Nina Carter is the administratrix of the estate of T. Carter, deceased, had been his wife for 14 years and is now his widow. .

Carter’s application for membership, statement made to medical examiner, medical examiner’s certificate, certificate of membership and certain sections of the rules and regulations of appellant were before the court. There is no contention as to the pleadings or the amount of the judgment, but it is insisted that the judgment should be reversed because it is contrary to the law and the evidence. In Carter’s application for membership he stated, “I also agree for myself, and those claiming through me to be governed by the regulations providing for final and conclusive settlement of all claims for benefits, or controversies of whatever nature, by reference to the manager of the Benefit Association, and an appeal from his decision to the Board of Trustees. I al§o agree that any untrue or fraudulent statement made by me to the medical examiner, or any concealment of facts in this application, or any attempt on my part to defraud or impose upon said Benefit Association * * * shall forfeit my membership in the said Benefit Association, and all rights, benefits and equities arising therefrom. * * * I certify that I am correct and temperate in my habits; that, so far as I know, I am now in good health.” To the medical examiner he stated that his wife’s name was Ada and the same of his son Isel, and he left blank the space for the name of his daughter. He certified that he answered in full and correctly and that his answers were true, and agreed that any untrue or fraudulent statement made by him to the medical examiner, or any concealment of facts in his application, or any attempt on his part to defraud or impose upon said Benefit Association, or his resigning from or leaving the service of the American Steel Foundries, or his being relieved or discharged therefrom, should forfeit his membership in the said Benefit Association, and all rights, benefits and equities arising therefrom. The rules and regulations of appellant provided that the membership of any member guilty of disreputable or unlawful conduct should be automatically canceled and rendered of no force and effect. What constitutes the contract in this class of cases is too well settled to require recital. In his contract Carter made untrue and fraudulent statements that Ada Carter was his wife, that he had a son, Isel, and no daughter. In it he concealed from appellant the fact that Nina Carter was his wife and that he had a daughter Vivian. He attempted to defraud and impose upon appellant by placing some one other than his wife in a position to receive the benefits under Ms certificate. He violated his contract in being guilty-of disreputable and unlawful conduct by holding out and living with Ada Carter as his wife, when she was not his wife, and in that way further violated that part of Ms contract reqMring him to be correct and temperate in his habits. By the terms of Carter’s contract he forfeited his membership and his rights, benefits and eqmties arising therefrom.

According to its rules and regulations, one of the objects of appellant was to pay to the family of a member a certain sum upon his death. Ada Taylor was not a member of Carter’s family. Under the rules- and regulations of appellant, a part of the contract, she did not have an insurable interest in his life. Carter made untrue and false statements as to the relationship and was attempting to defraud and impose upon appellant when he attempted to make her his beneficiary. Appellant had a right to be correctly informed as to who constituted Carter’s family, who the beneficiary was and what her relationsMp was to the member, and such information was material to enable appellant to determine whether it would issue the certificate. It is fair to assume if Carter had disclosed that Ada Taylor, whom he attempted to make his beneficiary and. with whom he was living, was not in fact his wife, though so designated by him, and that he had a wife and daughter, that appellant would have declined to issue the certificate of membership. The statement by Carter that Ada Taylor was his wife was material and, being false and fraudulent, invalidated the certificate of membership, and there was no contract. Jefferson v. Supreme Tent of Knights of Maccabees of the World, 152 Ill. App. 242; Falberg v. Continental Casualty Co., 195 Ill. App. 237. Under the record Carter was living in an open state of adultery with Ada Taylor, which under the law made him guilty of a crime. He was therefore guilty of disreputable and unlawful conduct, and when he falsely certified that he was correct and temperate in his habits he made a false statement and thereby, by the terms of his contract, his membership was automatically canceled. The basis of this claim ceased to exist when Carter’s membership was forfeited, and appellee is in no better position than Carter would be if living and attempting to enforce the contract in the collection of sick or accidental benefits. Whether the untrue and false statements of Carter, herein pointed out, are considered as warranties or as representations, they are so material that falsity therein invalidated the contract. Supreme Lodge of Order of Columbian Knights v. McLaughlin, 108 Ill. App. 85; Jefferson v. Supreme Tent of Knights of Maccabees of the World and Falberg v. Continental Casualty Co., supra.

Under the agreed facts in this case, as shown by the stipulation of the parties upon which the trial was had, appellees were not entitled to recover the death benefits for which the suit was brought, and therefore die judgment must be reversed.

Reversed with finding of facts.

Finding of facts to be incorporated in the judgment. We find that the deceased, Tobias Carter, also known as Tom Carter, was guilty of disreputable and unlawful conduct, which, under the rules and regulations of appellant, automatically canceled and rendered of no force and effect the certificate of membership issued by appellant to said Carter. Also that he was guilty of making untrue and false statements in his application for membership, which by the terms of the contract invalidated the same.


author: Me. Justice Higbee

text:
    Western Coal and Mining Company, Appellant, v. James Norvell, Appellee.
    1. Set-off and becoupment, § 10

      —when unliquidated damages not subject of set-off. Unliquidated damages not growing out of the contract sued on and in no wise connected therewith cannot be made the subject of a set-off.
    2. Damages, § 81

      —what are unliquidated. Unliquidated damages are such as rest in opinion only, and must be ascertained by a jury, their verdict being regulated by the peculiar circumstances of each particular case. They are damages which cannot be ascertained by computation or calculation, as, for instance, damages for not using a farm in a workmanlike manner; for carelessly upsetting a stage, by which a bone is broken, and other cases of like character, where the amount to be settled rests in the discretion, judgment or opinion of the jury.
    3. Landlord and tenant, § 376

      —what may be set-off on distress for rent. On distress for rent, defendant may plead as set-off demands for work and labor performed for and material furnished to plaintiff, even though such services were not limited to the leased premises.
    4. Courts, § 100

      —when County Court not ousted of jurisdiction by amount of judgment. The County Court is not ousted of jurisdiction by the fact that under an improper direction of the court, that an item not claimed be included, the judgment would be for an amount in excess of the court’s jurisdiction, where the judgment as entered is within the jurisdictional amount.

      5. Landlord and tenant, § 387

      —when judgment on plea of set-off on distress for rent is erroneous. Where, on distress for rent, defendant strikes from his plea of set-off the value of goods levied upon under the distress warrant, it is not proper for the court to include in the judgment for defendant the proceeds of the sale of such goods.
    6. Appeal and erbob, § 1766

      —when judgment reformed by striking out as surplusage illegal part. The fact that the trial court, on distress for rent, improperly directed that there be paid to defendant, who recovered on a plea of set-off, the proceeds of the sale of property levied on under the warrant, will not defeat so much of the judgment as was entered in legal form, but the Appellate Court will reform the judgment by striking out as surplusage such illegal part.
    7. Appeal and bbbob, § 1659

      —what error cured by remittitur. Error of the jury in overlooking plaintiff’s claim for rent in rendering judgment for defendant on his plea of set-off is cured by a remittitur by defendant of the amount agreed to be the amount of the rent.
    8. Fbincipal and agent, § 111

      —when employment by authorized agents and receipt of benefits of work shown. On distress for rent to which a demand for work and labor was pleaded as set-off, evidence held to show that defendant was employed by authorized agents of plaintiff, and that the plaintiff received the benefit of the services.
    9. Instructions, § 30

      —when oral direction to jury is not error. The statutory requirement that instructions to the jury shall be in writing does not prohibit the trial court from giving the jury an oral direction to disregard certain items which defendant has stricken from his plea of set-off and to pay no attention to testimony in regard to such items.
    Appeal from the County Court of Jackson county; the Hon, W. F. Ellis, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed November 1, 1918.
    L. B. Stewart and Whitnel & Whitnel, for appellant.
    Martin & Glenn, for appellee; Lawrence A. Glenn, 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.

   Me. Justice Higbee

delivered the opinion of the court.

The Western Coal and Mining Company, which is appellant here, at the time of the occurrences with which this suit is concerned, was the owner of and operating a large coal mine in the Village of Bush in Williamson county, Illinois.

In carrying on its mining operations, it became possessed of several hundred miners’ houses and other' buildings at that place, and it also owned several thousand acres of land in the vicinity of Bush and Hurst, another village near by. On September 19, 1910, the mining company leased to James Norvell, the appellee, for 3 years, a portion of its lands for farming purposes at a cash rent of $275 a year. During the existence of the lease, on April 20, 1912, a cyclone struck the Village of Bush blowing down hundreds of houses, killing persons and damaging the mine. It also practically destroyed Norvell’s house, bam, fences and other improvements, and killed much of his live stock. Under the instructions from Winchester, who was the “farm boss” of appellant, and later from other persons connected with appellant, including its general superintendent, as is claimed by appellee, he obtained lumber, made repairs to buildings and fences on the farm and also used his teams in clearing up the debris left by the cyclone around their buildings in Hurst, for none of which he claims he has ever been paid or given credit. The lease covered a large body of land, but all of it had been taken from Norvell but some 26 acres, for which Norvell claims he was to pay only $70 a year, by agreement with the farm boss Wright, who had succeeded Winchester. On the 27th day of June, by a notice dated June 23, 1913, signed by Wright as agent for appellant, Norvell was notified that there was due from him to appellant as rent the sum of $105; that payment of said sum was demanded and that unless such payment was made on or before the 23rd day of August, 1913, his lease would be terminated. Appellee did not pay the rent mentioned in the notice for the reason that he claimed appellant was indebted to him in a greater sum than that amount. On September 5, 1913, appellant levied a distress warrant for the sum of $225, which was claimed to be the balance of the rent due to it on the 1st day of September, 1913, upon 300 bushels of wheat in sacks, weighing 18,105 pounds, in appellee’s granary, a part of which appellee testified came from other lands than those which he had rented from appellant. To this distress warrant and an inventory, standing as the declaration of appellant in the cause, appellee pleaded a set-off and filed therewith a copy of his account against appellant. This account purported to be “for labor and material furnished and 'performed by the said James Norvell for the Western Coal and Mining Company” and included a claim for work with teams 93 days at $3 per day, $279, fence posts at 5 cents per post, $88.20, items for erecting or repairing certain buildings and fencing premises, for material furnished and for labor paid for, amounting in all to $1,074. This account was afterwards amended by adding 400 bushels of wheat taken under the distress warrant and the breaking of 20 acres of ground, which raised the total to $1,499.20. Later on during the trial the statement of the amount claimed by appellee was again amended by striking out several items, including the wheat taken under the distress warrant, and reducing the amount claimed to $982.80. The jury found in favor of the defendant and that there was due him the sum of $982.80. Subsequently appellee entered a remittitur in the sum of $70, which seems to have been the amount of one year’s rent on the premises, which he had not paid, and judgment was entered for $912.20 in his favor, which appears to have been a few cents less than the proper amount.

The first contention of appellant is that the court below in trying the case misconstrued the meaning of section 21 of the Act in relation to landlord and tenant (J. & A. ¶ 7059). “That section is as follows: “The defendant may avail himself of any set-off or other defense which would have been proper if the suit had been for the rent in any form of action and with like effect.” It is the theory of appellant that the items included in appellee’s set-off constituted a claim for unliquidated damages and consequently were not recoverable in the case by way of set-off, also that such items did not arise out of the rental transaction and for that reason likewise were not recoverable. Appellant’s views as to the law applicable to this phase of the case are set forth in three instructions which were offered by it and refused by the court. The first was as follows: “The jury are instructed in this case that even though you may believe from a preponderance of the evidence that following the cyclone which blew down and damaged the buildings of the plaintiff not situated upon the land ledsed by the plaintiff to the defendant, that the defendant furnished teams and labor and did the work of hauling lumber, brick and other materials in clearing away the débris of such buildings not situated upon the leased land, without an agreement between the plaintiff and the defendant as to the value of such services, leaving the amount to be paid therefor by the plaintiff to defendant, if anything, unliquidated, that then and in such case the defendant cannot set off in this suit as against the claim of the plaintiff for rent the value of such services so rendered by the defendant.” Another one of said refused instructions applied the same rule to work that the appellant may have done in constructing buildings or fences or furnishing material therefor. And a third applied a like rule to cases where there were unliquidated items arising out of a transaction distinct and separate from and not connected with the rental or lease of the land to appellee by appellant.

It is true, as claimed by appellant, that as a general rule unliquidated damages not growing out of the contract sued on, and no wise connected therewith, cannot be made the subject of a set-off. (Higbie v. Rust, 211 Ill. 333.) But here the items contained in appellee’s claim of set-off were not such as should be considered to be claims for unliquidated damages. A clear definition of unliquidated damages, as we understand them, is contained in Butts v. Collins, 13 Wend. (N. Y.) 139, which is as follows: “They are such as rest in opinion only, and must be ascertained by a jury, their verdict being regulated by the peculiar circumstances of each particular case. They are damages which cannot be ascertained by computation or calculation, as, for instance, damages for not using a farm in a workmanlike manner,- * * * for carelessly upsetting a stage, by which a bone is broken, * * * and other cases of like character, where the amount to be settled rests in the discretion, judgment or opinion of the jury.” The items in controversy here could readily be determined by the proof, and their value did not rest in the discretion, judgment or opinion of the jury. The question presented also appears to be determined in this State by the case of East v. Crow, 70 Ill. 91. This suit grew out of a controversy as to the terms on which a farm was rented, and concerning a long string of accounts each party held against the other arising under the lease and from their mutual dealings while the relation of landlord and tenant existed. The court refused to give an instruction for plaintiff that they should disregard demands interposed in the suit by way of set-off, which had never been liquidated or the amount thereon settled upon and determined, unless the jury believed from the evidence that such demands grew out of the subject-matter or claims upon which plaintiff’s suit was brought. The court in its opinion discussed certain cases relied upon to sustain such instruction, and in disposing of it they said: ‘1 These decisions do not sustain the position taken by the plaintiff, nor the instruction refused. There was no evidence in the case upon which to base the instruction. The items of set-off in defendant’s account were not unliquidated damages arising out of a breach of contract, covenant or tort. They were for work, labor performed, board, goods sold and delivered, and money, etc. These items were a proper subject of set-off, and it would have been erroneous for the court to have given the instruction.” In D. Heenan Mercantile Co. v. Welter, 144 Ill. App. 279, it is said: “Demands for work and labor performed, board, goods sold and delivered, are of such a nature that they may be set off in an action ex contractu, whether they arise out of the subject-matter of the plaintiff’s suit or not.” It would seem clear that the items contained in appellee’s set-off, and for which he recovered judgment, were proper items of set-off, and that the court properly refused the three instructions of appellant which stated the contrary doctrine.

It is claimed that the County Court had no jurisdiction of the set-off because it was for a larger amount than $1,000. As amended, however, the amount of the claim was $982.70, and the judgment after the remittitur was entered was only for $912.20, which was within the proper limit to give the court jurisdiction. It is said by appellant, however, that as the judgment included the sum of $251.40 proceeds from the sale of wheat, which the court ordered to be paid to appellee by the county treasurer of Jackson county, that the total judgment was for an amount beyond the jurisdiction of the County Court. The judgment in regard to the latter amount was improper and the court had no authority to direct a payment of that sum to appellee by the county treasurer. That informality, however, should not imperil that portion of defendant’s judgment which was entered in legal form, and the same should and will be reformed here by striking out as surplusage the reference to the proceeds from the sale of wheat.

It is further contended by appellant that the jury wholly overlooked its claim for rent. If such mistake was made by the jury it was corrected by the remittitur of $70 entered by appellee, which was clearly shown to be the amount of the rent agreed upon. It was a further contention of appellant that appellee was not employed to do the work of hauling rubbish off of the streets of the village by any agent who was authorized to do so by the company. Appellee claims, however, and the proof seems to support the claim, that he was authorized to do the work by appellant’s farm boss, by Shaw, the general superintendent, by the company’s surveyor and by its local superintendent at Bush. This state of affairs, together with the fact as shown by the proof that appellant received the benefit of appellee’s labors, were sufficient to justify the jury in finding that appellee was employed to perform the services.

On the trial, when appellee amended his plea of set-off by striking certain items therefrom, the court addressed the jury orally, and referring to said items said, they would be stricken from the record and the jury were not to pay any attention to the evidence of any of such items in the plea of set-off, that such items were stricken entirely from the record. Counsel for appellant except to this statement of the court for the reason that it was giving instructions to the jury orally and not in writing, as provided by statute. The court in his statement to the jury was following the usual form of procedure of trial courts under such circumstances in this State, and in so doing did not transgress the law which requires instructions to the jury to be given in writing. Upon this subject our Supreme Court said in the early case of Bloomer v. Sherrill, 11 Ill. 483: “The statute, requiring the instructions to the jury to be given in writing, did not require the Circuit Court to deliver a written opinion, in deciding the motion of the plaintiff to exclude this testimony from the jury. This question merely concerned the admissibility of evidence, and had nothing to do with the law, as applicable to the evidence before them for consideration. When the court lays down the law by which the jury are to be governed in their deliberations, then he must instruct them in writing.” The judgment entered by the court below in this case will be reformed by striking out the following portion of it, to wit, “that the sum of two hundred fifty-one dollars and forty cents ($251.40), proceeds from sale of wheat, be paid to James Norvell, defendant, by the county treasurer of Jackson county, Illinois,” and as so reformed such judgment will be affirmed.

Affirmed.