author: Mr. Presiding Justice Smith

text:
    Gottfried Brewing Company, Defendant in Error, v. George McDonald et al., Plaintiffs in Error.
    Gen. No. 14,357.
    1. Parties—who must he joined in action upon specialty. In a suit upon a bond which is a joint and several obligation, all of the parties executing such bond must be joined as defendants.
    2. Abatement—when non-joinder need not he raised hy plea. In order to avail of the failure of the plaintiff in an action upon a specialty to join all parties to such specialty, a plea in abatement is not essential; such non-joinder may be raised either by motion for new trial or in arrest of judgment.
    Action of debt. Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed and remanded.
    Opinion filed February 16, 1909.
    Frederick B. DeYoung, for plaintiffs in error.
    Mark B. Sherman, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

To review the record, proceedings and judgment of the Municipal Court of Chicago in an action brought by Gottfried Brewing Company against George McDonald, Peter Dalenberg and Albert Vinke, defendants, this writ of error is prosecuted.

It appears from the record that the plaintiff, Gottfried Brewing Company, employed, on or about October 1, 1905, one Garret Kunis as its agent at West Pullman, Chicago. Before entering upon the duties of his employment the company required of Kunis a fidelity bond. Upon that bond the defendants, plaintiffs in error, became sureties. The bond is as follows:

“Know All Men By These Presents,

That, we, Garret Kunis, Peter Dalenberg, George McDonald and Albert Vinke of the County of Cook and State of Illinois, are held and firmly bound unto Gottfried Brewing Company, a corporation under the laws of the State of Illinois, in the sum of one thousand ($1,000.00) dollars, good and lawful money of the United States of America, to be paid to said Gottfried Brewing Company, or its attorney, successors or assigns, for which payment well and truly to be made, we bind ourselves and our heirs, executors and administrators, jointly and severally, firmly by these presents.

Sealed with our seals and dated this 21st day of September, A. D. 1905.

The condition of this obligation is such, that if the said Garret Kunis, who has this day entered into the employment of the said Gottfried Brewing Company, shall carefully and honestly perform each and every act and duty required of or from him while in the employ of said Gottfried Brewing Company and when such employment terminates shall well and truly and honestly account to said Gottfried Brewing Company for all money and property of whatever kind that may come into the possession of said Garret Kunis during said employment aforesaid, and surrender and pay over to said Gottfried Brewing Company all such goods, chattels, personal property, money, notes, drafts and checks belonging to said Gottfried Brewing-Company, then this obligation to be void; otherwise to remain in full force and virtue.

Garrett Kunis, [Seal.]

Geor'ge McDonald, [Seal.]

340 105th Court,

Peter Dalenberg, [Seal.]

355 W. 111th St.

Albert Vinke, [Seal.]

11526 Michigan Ave.

Signed, sealed and delivered in the presence of

Bud Loula,

(Notarial Seal.) Notary Public.”

Garret Kunis, the principal in the bond, was one of several employes of the Brewing Company at its West Pullman branch, and had charge of the branch, including the horses and wagons, received all the beer, made the deliveries to customers, received the money and turned it in to the office and made reports thereof. By the terms of his employment he was required to make reports to, and settlements with, his employer at the end of each month. He was permitted to retain a portion of the moneys which he received during the month for the purpose of paying the current expenses of the branch. Early in November, 1905, at the end of the first month’s service, Kunis failed to pay to the company an amount between. $50 and $200. One' month later, upon a second accounting, he was permitted to retain a larger sum. This practice appears to have been continued until in April, 1906, when Kunis left the employ of the company, there was a balance in his hands of $628.06, which he failed to turn over.

The Gottfried Brewing Company on August 20, 1907, instituted the above mentioned suit on said bond against the three sureties. Kunis was not made a party, and never has been a party to the suit. The case came on for trial and the jury returned a verdict in favor of the plaintiff for $1,000 debt and $695.54 damages. After motions for a new trial and in arrest of judgment were each overruled by the court judgment was entered on the verdict. On the same day that judgment was rendered, but before it was entered, the plaintiff, by leave of court, amended its statement of claim by adding, thereto: 1 ‘ The plaintiff avers that the said Garret Kunis, the principal signer of said bond, had at the time of the commencement of this action, absconded and left the jurisdiction of this court, and departed for parts unknown, so that process could not be served upon him, the said Garret Kunis.”

The bond upon which the suit was brought is a joint and several obligation. On such an obligation suit must be instituted against all or against one. An intermediate number cannot be sued. Moore v. Rogers, 19 Ill. 347; Cummings v. The People, 50 id. 132; Sinsheimer v. Skinner Mfg. Co., 165 id. 116; Sherburne v. Hyde, 185 id. 580, 585; Scanlon v. The People, 95 Ill. App. 348.

The plaintiff in its statement of its claim sets out the bond by which it appears that Garret Knnis, who was not joined in the action, is a joint obligor. By the amendment to the statement of claim it appears that said Knnis, the principal signer of the said bond, had at the commencement of the action absconded and left the jurisdiction of the court and “departed for parts unknown.” The right of action therefore had not survived against the three sureties for it appears by the record that Knnis is still living, and that he is jointly liable with the defendants. It appears therefore upon the face of the record from the statement of claim as amended thát the action cannot be maintained. See cases cited supra.

No plea in abatement was necessary to raise the question here presented, for the reason that the facts affirmatively appear by the plaintiff’s pleadings. Sinsheimer v. Skinner Mfg. Co., supra; Cummings v. The People, supra; Scanlon v. The People, supra. The question was properly raised in the lower court by the motion for a new trial, and the motion in arrest of judgment, and the court erred in its rulings on the motions.

For the reasons given the judgment of the Municipal Court of Chicago is reversed and the cause is remanded.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    Candace E. Gray, Defendant in Error, v. Drexel Arms Hotel, Plaintiff in Error.
    Gen. No. 14,373.
    1. Inns and inn-keepers—what does not establish status as guest. Held, that the evidence in this case failed to show the relation of guest and inn-keeper but, upon the other hand, established the status of the plaintiff as a lodger.

      2. Bailments—obligation of lodging house Keeper. A lodging house keeper is only held to the use of ordinary care in relation to property of a lodger left in her room during her absence from the lodging house.
    Trover. Error to the Municipal Court of Chicago; the Hon. F. L. Fake, Jb., Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed and judgment in this court.
    Opinion filed February 16, 1909.
    Will C. Moody, for plaintiff in error.
    No appearance by defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

By this writ of error the record of the Municipal Court of Chicago in an action brought by Candace E. Gray against the Drexel Arms Hotel, defendant, in which she recovered a judgment against the defendant for $50, is brought before us for review.

It appears from the record that the defendant, a corporation organized under the laws of the State of Illinois, is operating a hotel in'the city of Chicago. The plaintiff testified that in April, 1907, she registered at the hotel and secured a room which she occupied at a weekly rental until some time in August, 1907, when she moved from that room to room No. 217, on the third floor of the hotel, which she occupied at a weekly rental thereafter until and at the time of the trial of the cause. She left the room the night of September 17, 1907, and gave her key to the clerk, remarking that she would be gone several days, and left the hotel. She was absent about three weeks. The room was reserved for her during her absence and she paid for the room during the entire period of her absence.

Upon entering the room on her return she found that some of her personal effects which she had left in the closet had been disturbed. She soon thereafter went to the office of the hotel and stated to the clerk that a gun and a tailor made suit, which she said were in the closet when she went away, were missing.

The plaintiff testified on cross-examination that the Drexel Arms Hotel was her only place of residence from the time she first registered there, and that she considered it her home.

The value of the articles claimed to have been lost was shown by plaintiff’s evidence.

On behalf of the defendant the plan of the hotel was shown and the evidence tends to show that due care was exercised in regard to the character, habits, qualifications and integrity of its servants; that the room had no outside approach and could only be reached by the stairway or elevator inside the hotel; that clerks were on watch at all times, day and night; that during the plaintiff’s absence from the hotel the plaintiff’s room was reserved for her and had not been rented to or occupied by any other person or persons, and the defendant exercised the same care of the property of the plaintiff that it exercised regarding its own property.

In our opinion the evidence establishes the relation between the plaintiff and defendant as that of boarder and boarding house keeper or lodger and lodging house keeper, and that the relation of guest and innkeeper did not exist. Hale on Bailments and Carriers, 267; 272; Clifford v. Stafford, 145 Ill. App. 247, and authorities there cited.

Such being the relation of the parties there was, at most, only a bailment of the property for mutual benefit, and the defendant could only be held to the use of ordinary care in relation to the property of the plaintiff left in her room during her absence from the hotel. Cooley on Torts, pp. 761, 762; Hale on Bailments and Carriers, 242.

There is no evidence in the record of negligence on the part of the defendant, plaintiff in error, either in the care of the room or the property therein during the absence of the plaintiff or in the employment of its servants.

The judgment of the Municipal Court is reversed and judgment for the defendant, plaintiff in error, is entered in this court.

Reversed and judgment in this court.


author: Mu. Presiding Justice Smith

text:
    Rueckheim Brothers and Eckstein, Defendant in Error, v. SerVis Ice Cream and Candy Company, Plaintiff in Error.
    Gen. No. 14,382.
    1. Evidence—when telephone conversations incompetent. An unidentified telephone conversation is not competent to bind a party to an action and is therefore incompetent.
    2. Appeals and ebbobs—when cost of abstract not taxed in favor of appellant. Notwithstanding the appellant may prevail the cost of an abstract, which does not conform to the rules of court, will not be taxed in his favor.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed and remanded.
    Opinion filed February 16, 1909.
    Statement by the Court. This writ of error brings before us for review the proceedings and judgment in the Municipal Court of Chicago in an action brought by Rueckheim Brothers & Eckstein, a corporation, defendant in error, against SerVis Ice Cream & Candy Company, a corporation, plaintiff in error, for merchandise claimed to have been sold and delivered by the plaintiff below to the defendant in August, 1907.
    The record shows that the contracts of sale were attempted to be proved by telephone conversations claimed to have been had on August 13,19 and 24,1907, between F. A. Russell, a city salesman of the plaintiff, and some one at the other end of the wire claiming to represent the defendant. The testimony of Bussell tends to show that he was called up on August 13,1907, by some one on the telephone who said it was the defendant Candy Company, and that it had privileges at Pain’s Fire Works and wanted to place an order with the plaintiff for five cases of cracker jack to be delivered at the park, and that he wrote down the order and the goods were delivered by the plaintiff’s wagon man, who returned a receipt for the goods signed “W. E. SerVis, per S. A. Horowitz.”
    A few days later Bussell received another order in the same way for seven cases more of the same goods to be delivered at the same place. Plaintiff’s wagon man returned a receipt for the same, dated August 19, 1907, signed “W. E. SerVis, S.A.H.,” and some time later a stranger called up the witness and placed another order for five cases to be delivered at the same place; and plaintiff’s wagon man returned a receipt dated August 24, 1907, signed “Jack Horowitz.” The witness did not know the voice of the person who gave the orders. At the time of taking the third order the plaintiff was called up by some one giving the defendant’s name in the absence of the witness, who subsequently called up the defendant at its place of business, 108 South Clark street, Chicago, and he asked the girl who answered the call if they wished more cracker-jack, and she responded that she did not know. He left the telephone number and asked that he be called up. He was subsequently called on the telephone and the party referréd to the memoranda he had left, and gave the order. The witness also testified that in September or October he went to the defendant’s place of business, 108 South Clark street, and saw Mr. SerVis and presented the bill, and that SerVis said the first bill was all right, that he knew nothing about the others and that he had a claim against the plaintiff for something like $28 for a roller, and he wanted it paid.

      Ser Vis denied the statements of Bussell; denied that he said the defendant owed the first bill or any part of it; stated that he told Bussell that defendant had absolutely nothing to do with the bill; he further testified that he received the mail for the defendant company and knew all about its letters, and that the company had never received any bills from the plaintiff and that no person except himself had any right to buy goods or make contracts for the defendant company; that Horowitz had no relations with the company and no right to buy goods for it or to contract for it; that Horowitz had never been in the employ of the company and had never had any connections with it in any way; that the witness had never had any telephone conversations with Bussell or any other person connected with the plaintiff about buying cracker-jack from them for the defendant or any other person; that the defendant never had anything to do with Pain’s Fire Works or the crackerjack concession or arrangements there, and the defendant never handled cracker-jack.
    Scott Osten Cavette, for plaintiff in error.
    Charles Daniels and Sumner C. Palmer, for defendant in error.
   Mu. Presiding Justice Smith

delivered the opinion of the court.

The assignments of error question the correctness of the rulings of the court on the admissions , of evidence, the motions to exclude evidence, and the motion for a new trial. It is also contended that the evidence does not sustain the finding and judgment of the court.

The court permitted a telephone conversation between the witness Bussell and some unknown person to be received in evidence without in any way connecting the unknown persons with the defendant, plaintiff in error, in relation to the first and second orders given. The unknown person called up Bussell and gave the order. No proof was offered to show that the unknown person was authorized by, or connected with, or even in the place of business of the plaintiff in error. This was error. The rule of the Supreme Court of Missouri in Wolfe v. Missouri Pacific Ry. Co., 97 Mo. 473, quoted with approval in Godair v. Ham Nat. Bank, 225 Ill. 572, does not apply to this case. In the Missouri case it was sought to introduce a conversation had by telephone between a witness and some person in the place of business of one of the parties to the suit, and the evidence was held admissible on the ground, that “when a person places himself in connection with a telephone system through an instrument in his office, he thereby invites communication, in relation to his business, through that channel.” But, that is far from holding the admissibility of such conversations with some person not shown to have been in the place of business of the party, and using the instrument there installed. A party may well be held responsible for what takes place in his own business office under such circumstances, but we do not think the rule should be extended to conversations over other telephones wherever situated, simply because the party has connected himself with a telephone system.

The facts shown in regard to the third order differ somewhat from the other orders, according to the testimony of the witness Bussell. In that case Bussell called up the office of the defendant and requested the person who answered him to make a memorandum of the fact that he desired to talk with the person who wished to give a further order for cracker-jack; and shortly thereafter he was called up by a person who referred to what had taken place over the telephone, and gave an order. This affords grounds for the inference that the person talking with him was at the office of the defendant and acting for it, and brings that conversation within the rule in the Godair case supra, making the conversation admissible.

Upon a careful review of the evidence in the record we are of opinion that it does not sustain the finding and judgment. The evidence shows that some one unknown ordered the goods delivered at Pain’s Fire Works at Sixty-third street and South Park avenue, Chicago, and that Horowitz received and receipted for the goods at that place. The defendant company was not doing business there, and had nothing whatever to do with the business there conducted by Horowitz. Horowitz was never connected in any way with the defendant company, and had no authority whatever to purchase goods in the' name of the defendant. The evidence in the record does not show that the defendant ordered the goods, the value or price of which was sought to be recovered in the action.

The abstract of record so-called filed by plaintiff in error is largely a copy of the record, and contains arguments of counsel. It does not conform to the rules of court. The abstract should not be taxed in the costs of court against defendant in error.

The judgment is reversed and the cause is remanded.

Reversed and remanded.


author: Me. Peesiding Justice Smith

text:
    Nellie E. Kelly, Appellee, v. North American Union, Appellant.
    Gen. No. 14,395.
    1. IsrsTJEANCE—incontestable clause construed. A contract of Insurance which contains an incontestable clause as follows:
    “This contract shall be incontestable after two years from the date hereof, except for non-payment of dues, assessments, fines, or premiums, engaging in prohibited occupations, or becoming habitually addicted to the excessive use of intoxicating liquors, opium or other injurious drugs, or substances, contrary to the laws, rules and regulations of the association, and the agreements of the memcannot be defendant against, after the lapse of two years from its date, by evidence which tends to show that the insured met his death while in the act of committing a breach of the peace.
    2. • Insurance—when addiction to excessive use of intoxicants not defense under particular state of pleadings. A defense that the insured became addicted to the excessive use of intoxicating liquors in violation of a condition subsequent contained in the contract of insurance, is not available in the absence of a special plea.
    3. Insurance—when compliance with conditions subsequent need not be shown. It is not incumbent upon the plaintiff in order to recover upon an insurance contract to show, in the first instance, that the deceased complied with a condition subsequent contained in the contract, having reference to the excessive use of intoxicating liquors.
    4. Pleading—object of special plea. The object of a special plea is to give the plaintiff notice of the special defenses relied upon by the defendant which relieves it from the obligation to pay.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed February 16, 1909.
    Rehearing denied March 2, 1909.
    Statement by the Court. On June 22, 1899, Edward Kelly entered into the following contract of insurance with appellant North American Union, a fraternal benefit society, organized under the laws of Ulinois:
    “ Number 5753
    Dollars
    $2000.00
    North American Union.
    BENEFIT CERTIFICATE.
    This is to certify that Edward Kelly is a member of the North American Union, duly admitted to membership in Fort Dearborn Council No. 77 thereof on the 21st day of June, A. D. 1899, and that he is a contributor to the Mortuary Fund and Reserve Fund of said North American Union, and as such is entitled to all the rights, privileges and benefits and is charged with all the obligations of such membership. And witnesseth, That upon condition that the statements made by said member in his application for membership in said Council, the representations and agreements made and subscribed by him in the Medical Examiner’s blank, and the answers given and certified by him to the Medical Examiner, all of which representations, agreements, statements and answers-are hereby acknowledged, and declared by him to be warranties, be made a part of this contract, and upon condition that the said member complies in future with the Laws, Bules and Regulations, now governing the said North American Union, and the Mortuary and Reserve Funds thereof, or that may hereinafter be enacted to govern the same, all of which said laws, Rules and Regulations are also made a part of this contract, and upon said member assenting to and complying with all the conditions herein provided the North American Union hereby promises and binds itself to pay out of its Mortuary Fund to Mrs Nelly E. Kelly the sum of Two Thousand Dollars, in accordance with and under the provisions and the laws governing the said Fund, upon satisfactory proofs of the death of said member and upon the surrender of this certificate, provided that said member is in good standing in this Association at the time of his death, and provided also that this Certificate shall not have been previously surrendered by said member, or cancelled in accordance with the Laws of this Association, and subject also to the following provisions:
    Total and Permanent Disability. If said member shall at any time after he has been a member of this Association for a continous period of three years, become totally and permanently disabled from following any occupation not prohibited by the laws of this Association, he may, upon satisfactory proof of such total, permanent disability, surrender this certificate and receive one-half of the sum herein agreed to be paid in case of his death, which payment shall be a full acquittance of all the obligations of this contract, and shall conclude and terminate all the rights, and interests of said member, and the beneficiary or beneficiaries named herein, and acquired by virtue of his membership in said Association.
    Annuity. When said member shall have reached the age of seventy years," no further payments of assessments shall be required, and he shall be entitled, at his option, to receive annually from and after his seventieth birthday as an annuity a sum equal to one-tenth of the amount agreed to be paid at his death, the aggregate amount of such annual payments shall, in no case exceed the Mortuary benefit herein agreed to be paid and shall be charged against such Mortuary benefit, and his beneficiary or beneficiaries shall be entitled at his death to receive only the balance due after deducting the sum total of said annual payments so made.
    Suicide. Should said member die by his own hand or act, sane or insane, and while he is a member of this Association, his beneficiary or beneficiaries shall in such case receive only one-half of the amount herein agreed to be paid, as a Mortuary benefit.
    Expulsion oe Default. If said member shall be expelled, or shall fail in his payments to the Mortuary and Beserve Funds, or shall default in any of his agreements, or shall suffer his membership to be terminated from any cause, prior to his death, he shall forfeit to said North American Union all moneys paid in by him on account of his membership in the Association, and he and his beneficiary or beneficiaries shall forfeit all rights acquired by virtue of his said membership, and shall not be entitled to any of the payments herein provided.
    Incontestable. This contract shall be incontestable after two years from the date hereof, except for nonpayment of dues, assessments, fines or premiums, engaging in prohibited occupations, or becoming habitually addicted to the excessive use of intoxicating liquors, opium or other injurious drugs, or substances, contrary to the laws, rules and regulations of the Association, and the agreements of the member.
    In Witness Whereof, the North American Union has hereunto affixed its seal and caused this certificate and agreement to be signed by its Supreme President, and attested and recorded by its Supreme Secretary, at Chicago, Illinois, this 22d day of June, A. D. 1899.
    (Signed) Bobert E. Iles, Supreme President.
    (Corporate Seal)
    (Signed) Gr. Langhenry,
    Supreme Secretary.

      I accept this certificate on the conditions herein-above named and assent thereto and agree to comply therewith.
    (Signed) Edward Kelly.
    We hereby certify that the within named Edward Kelly was duly admitted to membership in Fort Dear-born Council, No. 77, of the North American Union, on the 21st day of June, A. D. 1899.
    (Signed) Bernhard Bauman, President,
    (Signed) W. H. Peters,
    Secretary.”
    Kelly, according to the record, paid all his dues to the society from his admission to membership and the making and delivery of the above contract until his death April 10, 1907. His death resulted from a blow on his head administered by one Fox.
    After Kelley’s death his beneficiary, Nellie E. Kelly, his widow, appellee, made proper proofs of death to appellant, and demanded payment of the amount provided in the certificate, and upon the refusal of appellant to make payment thereof brought this action in the Municipal Court and had judgment therein for $2,000.
    The declaration consists of several special counts. As no point is made upon its sufficiency, or the admissibility of the plaintiff’s evidence thereunder, it is unnecessary to state its averments. The defendant, appellant, pleaded the general issue and a number of special pleas in each of which is set up a by-law of the defendant and that said Kelly agreed to comply with the same and violated it. The first special plea sets up a law of the defendant association to the effect that should a member die in consequence of engaging in a duel or by the hand of justice or meet death while in the act of or in consequence of violating the criminal laws of any state or municipality his membership in appellant shall ipso facto, on the happening of any or either of such events, be annulled, and the benefit certificate shall be null and void, and Ms beneficiary shall not be entitled to receive any payment thereunder. The plea alleges a violation of section 1454, chapter 39 of the Revised Municipal Code of CMcago of 1905, setting up the said section providing a penalty for disorderly conduct and averring a violation of the law and the contract, and that Kelly met Ms death in so doing.
    The second special plea sets up the same by-law of appellant, and the violation by Kelly of section 1770, chapter 4 of said Municipal Code of Chicago on, to wit, March 31, 1907, wMch section provides a penalty for falsely assuming or pretending to be a policeman, or wearing a police uniform, badge or star, and that Kelly met his death while violating said section.
    The third special plea sets up the by-law of' appellant and its violation by said Kelly in violating section 93A of chapter 38, Hurd’s Revised Statutes of Hlinois of 1906, and that in consequence thereof he met Ms death.
    The fourth special plea sets up the same by-law of appellant and the violation of section 93 of chapter 38 of said Statutes, and that by violating the same Kelly met Ms death.
    The- fifth special plea sets forth the same by-law of appellant and its violation by Kelly by violating sections 20 and 22 of said chapter 38 of said statutes and that Kelly’s death was caused thereby.
    Issue was joined on the several pleas by filing a similiter to the general issue and replications to the special pleas.
    The plaintiff, appellee, made proof of the benefit certificate; that she was the wife of Edward Kelly, and the person named therein. The laws, rules and regulations of appellant, its certificate of incorporation, the application for membership by Kelly, including the answers made by him to the medical examiner, and the'death of Kelly on April 10, 1907, were proved; and the admission of appellant in open court that proper proofs of death had been made, and that all dues had been paid by Kelly.
    E. E. Hamilton, for appellant.
    Dunn & Hayes, for appellee; William P. Hayes, of counsel.
   Me. Peesiding Justice Smith

delivered the opinion of the court.

From the assignment of errors and the contentions of appellant’s brief, we understand that it is claimed that the judgment is erroneous for two main reasons: first, because the incontestable clause of the contract does not limit appellant’s right to contest the payment of the policy to the items excepted in said clause, namely, (1) non-payment of dues, etc., (2) engaging in prohibited occupations, and (3) becoming habitually addicted to the excessive use of intoxicating liquors, etc. And second, that under the pleadings appellant had the right to show that the policy was defeated and became null and void because Kelly, the insured, became habitually addicted to the excessive use of intoxicating liquors, and violated the laws of appellant.

These questions arise on the rulings of the trial. court excluding the following evidence offered by appellant. Counsel for appellant offered to prove by the testimony of White that on March 31, 1907, he saw a man by the name of Harry Fox pursued by Edward Kelly, the deceased, and that White saw Kelly make a kick at Fox, and that Fox picked up a broom handle and struck Kelly with it on the side of his head; that Fox said to the officer who captured him, “Captain don’t let him hit me, he has beat me up several times, pretending he is a police officer, and he ain’t on the force now; and has threatened to arrest me and let me go for a little change. He asked me for a few nickels to-day which I wouldn’t give him.”

Counsel for appellant further offered to prove by a witness, Blumbly, that on March 31, 1907, about 1:30 P. M. he saw Harry Pox walk north ón State street toward Twenty-first street; and about midway between Twenty-first and Twenty-second streets, Edward Kelly passed Pox and turned around and motioned Pox to come back to him, at which Pox shook his head in the negative; that Kelly put his right hand in his right-hand hip pocket, aseif reaching for a revolver. Thereupon Pox started to run and Kelly followed him to an alley with his hand still in his hip pocket; that the witness Blumbly spoke to Kelly “and asked what was the matter, and Kelly answered that he would get him yet.” That about fifteen minutes later the witness saw Pox on State street just north of Twenty-second street, and Kelly went to Pox, who commenced to back away from him. Kelly again put his hand in his hip pocket, and thereupon Pox picked up a piece of broom handle about three feet long and struck Kelly. Before striking him Pox said to Kelly, “You are not a policeman any more and have no right to arrest me.” Pox further said, “Don’t shoot me.” Appellant also offered the testimony of Harry Fox to the same effect, and that “he had known Kelly to be more or less of a drinking man * * * for probably four or five years up to that time.”

The evidence offered tended to prove the first special plea, and if, under the contract of insurance, it constituted a defense it was error to exclude it. This raises the question of the construction of the contract of insurance, and particularly the effect of the incontestable clause at the close of the contract.

Following the general contract of insurance by which appellant in its certificate agreed to pay to appellee $2,000 out of its mortuary fund upon proof of the death of Kelly, provided he was in good standing in the appellant association at the time of his death, certain clauses and provisions appear which fix the amount to be paid in the event of the total and permanent disability of the member; and when the member reaches the age of seventy years there is a provision for an annuity at the option of the insured; and there is another provision fixing the amount to he paid should the member die by his own hand or act; and a clause providing for the forfeiture of all rights and moneys paid by the insured in the event of expulsion or default in payments to the funds. The last provision of the contract is as follows:

‘ ‘ This contract shall be incontestable after two years from the date thereof, except for non-payment of dues, assessments, fines or premiums, engaging in prohibited occupations, or becoming habitually addicted to the excessive use of intoxicating liquors, opium or other injurious drugs, or substances, contrary to the laws, rules and regulations of the Association, and the agreements of the member.”

We fail to discover in the provisions of the contract any obscurity or inconsistency calling for any explanation of terms or for any construction of the different clauses. The contract expresses clearly the agreement of the parties in plain language, the meaning of which is apparent as soon as it is read. The last provision of the policy making the policy incontestable after two years, except as to certain things, is plain and unequivocal. It makes the policy absolute, except for three things,—first, non-payment of dues etc., second, engaging in prohibited occupations, and third, becoming habitually addicted to the excessive use of intoxicating liquors etc., contrary to the rules and regulations of the association and the agreements of the members.

The evidence offered by appellant stated above does not tend to prove any ground of forfeiture, or of avoiding liability under the contract of insurance, mentioned in said clause. In our opinion the defense set up in the first special plea and in the proof above offered is not available to appellant under the contract, after two years from its date; and the court did not err in excluding the evidence.

In Sun Life Ins. Co. v. Taylor, 56 S. W. 668, the fourth clause of the policy there involved provided that it should be void “if the insured dies in consequence of his * * * own criminal action.” The twelfth clause of the policy provided: “If the insured shall die three or more years after the date hereof, and after all due premiums shall have been received by the company, this policy shall be incontestable.” One of the defenses to the action was that the insured died in consequence of his own criminal action, and therefore the policy was void. On the trial the company offered to prove that the insured assaulted a man and that the party assaulted in his own necessary self defense slew the insured.' The trial court excluded the evidence. It was contended that the twelfth clause of the policy, quoted above, did not render the policy incontestable where the insured died in consequence of his own criminal action; “that the parties did not intend by that provision of the policy to render unavailable a defense based on a violation of law which was made a breach of the policy by its terms, but that the provision as to the incontestable nature was that is should not be contested for misrepresentations in securing it.”

It thus appears that the precise question presented in this case was before the Kentucky Court of Appeals. That court held in a well considered opinion, in which a number of cases in several jurisdictions are cited, that “the language providing that the policy should be incontestable does not restrict it to any particular grounds of contest, but is broad and comprehensive enough to embrace ány and every defense which might have been made to it before the expiration of three years. To say that it has reference to one defense and not to another is writing into the policy terms which the very language of it excludes.” The ruling of the trial court was sustained. See also Triple Link M. Ins. Co. v. Froebe, 90 Ill. App. 299.

Appellant also offered to prove by Dr. Bernhardt that the witness made a post-mortem examination of the body of Edward Kelly at the hospital. Upon opening the body and head and examining the organs he found that death was due, in his opinion, to necrosis of the brain and cerebral hemorrhage due to fracture of the skull from external violence; that the witness examined the organs of the body of Edward Kelly, and from his examination it appeared that Kelly was addicted to the use of aleholic drinks and had been for some years past, or since June 19, 1901. The court excluded this evidence.

Assuming (what we do not regard as clear) that the evidence offered tended to prove that Kelly had become “habitually addicted to the excessive use of intoxicating liquors, opiums or other injurious drugs, or substances, contrary to the laws, rules and regulations of the association, and the agreements of the members,” the question is, was this testimony admissible under the pleadings.

The evidence offered tended to prove that the assured had not complied with.the conditions of his contract of membership and insurance. It does not tend to show that any facts stated in his application for the insurance were untrue. If Kelly became habi family addicted to the excessive use of intoxicating liquors two years after the certificate was issued, it was a failure to perform a condition subsequent of the contract, which was excepted from the incontestable clause. No special plea was filed putting in issue his failure to perform this condition of the contract, or his violation of his contract in respect to this condition. In Modern Woodmen of America v. Davis, 184 Ill. 236, it was held that the plaintiff need not prove performance of condition subsequent, unless it is put in issue by a special plea. It was not incumbent upon the plaintiff, appellee, in the first instance, to prove the truth of the statements made in the application for membership, or Kelly’s compliance with the laws of the appellant association, since those matters are matters of defense. Supreme Lodge v. Matejowsky, 190 Ill. 142; Phenix Ins. Co. v. Stocks, 149 id. 319. Appellant insists that proof of this defense is admissible under the general issue.

In 2 May on Insurance, par. 591, it is laid down as the rule that a breach of a condition subsequent, if relied on to avoid the policy must be specially pleaded, and that proof of such breach is not admissible under the general issue. To the same effect is 4 Joyce on Insurance, par. 3691. Continental Life Ins. Co. v. Rogers, 119 Ill. 474, 485. So in an action on a fire insurance policy it has been held that the defendant company cannot avail itself of the defense of violation of the conditions of the policy by a change of possession without specially pleading such defense and giving the plaintiff an opportunity to set up by replication any matter of waiver or otherwise which he might be able to present. Phenix Ins. Co. v. Caldwell, 187 Ill. 73, 82.

The reason of the rule above stated is suggested by the last ease cited. The object of a special plea is to give the plaintiff notice of the special defense relied upon by the defendant which relieved it from paying the benefits secured by the policy. If the defendant had set up by special plea that the insured had become addicted to the use of intoxicating liquors the plaintiff might have replied and proved, if the facts warranted, that appellant had estopped itself from making such defense by accepting payment of dues and assessments after the insured had become so addicted, with full knowledge of the facts constituting the defense, and thus waived its right to insist on the defense.

We are of the opinion that the evidence excluded was not admissible under the pleadings and that the court did not err in excluding it.

To our opinion the record is free from substantial error and the judgment of the Municipal Court is affirmed.

Affirmed.


text:
    People ex rel. Village of Burnham, Appellee, v. City of Chicago, Appellant.
    Gen. No. 14,960.
    1. Mandamus—what essential to award of writ. In order to entitle a party to a writ of mandamus, he must show a clear right to the relief sought; if the right be doubtful the writ will not be awarded.
    2. Mandamus—when not awarded against city to supply village with water. Mandamus should not be awarded to compel a city to supply water to a village within its territorial limits notwithstanding the abstract obligation to supply such water exists, if it appears that such village did not possess a system of waterworks and is not in a position to receive such water and the same if supplied could not be utilized.
    3. Mandamus—effect of resisting judgment upon petition and answer. A respondent by resisting a motion of the petitioner for a judgment upon a petition and answer does not thereby submit the cause for final determination upon such petition and answer.
    4. Mandamus—proper form of judgment. A judgment in mandamus is like a judgment in any other proceeding at law; it should be clear and complete in itself. “The respondent should not be required to look beyond the writ to ascertain the precise acts which he is required to perform.”
    5. Mandamus—when judgment in informal. A judgment in mandamus which directs a city to supply water to a village within its territorial limits when such village shall notify such city in writing that it is ready to receive the same, is fatally bad.
    6. Mandamus—when judgment in informal. A judgment in mandamus is erroneous which is provided to become operative only when the clerk of the court shall have passed upon the sufficiency of a notice and the service thereof.
    Mandamus. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed February 16, 1909.
    Samuel K. Markman, for appellees.
    Emil 0. Wettest and William D. Barge, for appellant; Edward J. Brustdage, of counsel.
   Me. Peesiding Justice Smith

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court awarding a writ of mandamus on the petition of the village of Burnham against the city of Chicago.

The petition alleges that the “Act to create Sanitary Districts and to remove obstructions in the Des Plaines and Illinois Bivers,” approved May 29, 1899, created and fixed the boundaries of the Sanitary District known “As the Sanitary District of the city of Chicago; ” that section twenty-six of that act is as follows :

“Whenever in any such sanitary district there shall be a city, incorporated town or village, which owns a system of waterworks and supplies water from a lake or other source which will be saved and preserved from sewage pollution, by the construction of the main channel, drain ditch or outlet herein provided for, and the turning of the sewage of such city and district therein, and there shall be in such sanitary district any territory bordering on any such city, incorporated town or village within the limits of another city, incorporated town or village, which does not own any system of waterworks, at the time of the creation of such sanitary district, then upon application by the corporate authorities of such latter named city, incorporated town or village the corporate authorities of such city, incorporated town or village having such system of waterworks shall furnish water at the boundary line between such municipalities by means of its waterworks to the corporate authorities asking for the same in such quantities as may be required to supply consumers within said territory, at no greater price or charge than it charges and collects of consumers, within its limits for water furnished through meters in like large quantities.”

That “An Act in relation to the Sanitary District of Chicago, to enlarge the corporate limits of said district and to provide for the navigation of the channels created by such district and to construct dams, water wheels and other works necessary to develop and render available the power arising from the water passing through its channels and to levy taxes therefor,” approved May 14, 1903, by section 1 prescribes the boundaries of the district.

That the village of Burnham is an incorporated village within the Sanitary District and borders on the city of Chicago; that the city of Chicago is in said Sanitary District and owns a system of waterworks and supplies water from a lake that will be and is preserved from sewerage pollution by the construction of the main channel, provided for by said act of 1899 and that the drainage canal or channel provided by said act to be built had been built.

That the village of Burnham does not own a system of waterworks and did not at the time of the creation of the Sanitary District; that the corporate authorities of the village did apply to the corporáte authorities of the city of Chicago and requested the city to furnish water at the boundary line between such municipalities by means of the waterworks of the city to the said village in such quantities as the village may desire' at no greater price or charge than the city, charges and collects of consumers within its limits for water furnished through meters jn large quantities; that since the act of 1903 the taxpayers of the village have paid into the Sanitary District in the form of taxes a large sum of money, yet the city refused and still refuses to comply with the request, by means whereof, the village is denied the right to receive water from the city in the manner provided by the statutes.

Wherefore, petitioner prays a writ of mandamus directed to the city and its authorities, commanding them “forthwith to furnish water at the boundary line between the said village of Burnham and the said city of Chicago” by means of the city’s waterworks in such quantities as may be required to supply consumers in the village and at no greater price than the city charges consumers within its limits for water furnished through meters in like large quantities.

The answer of the city of Chicago admits that the village and the city are municipal corporations under the laws of this State and both within the limits of the Sanitary District of Chicago, a corporation organized under the Act to Create Sanitary Districts and to remove obstructions in the Des Plaines and Illinois rivers, approved May 29, 1889, and the amendments thereto; that section 26 of that act is substantially as set out in petition; that the respondent owns and operates a system of waterworks by means of which it supplies its citizens with water from Lake Michigan and that the source of the supply of water used by such system has been improved and purified by the construction of the work undertaken by the Sanitary District of Chicago.

Admits that the village borders upon the city limits, and that the village does not own any system of waterworks and did not own any at the time of creation of such Sanitary District, and that the corporate authorities of the village have applied to the respondent for a supply of water to be furnished the village at the boundary line in such quantities as the village may desire, but denies the allegation that respondent has refused and still does to comply with said request.

Despondent says that the only means it possesses of supplying water to the village is by using what is commonly called the Sixty-eighth Street Pumping Station, and that the demands now made upon said station to supply water to the inhabitants and industries of the city are so great and burdensome that it would be impossible for this respondent to furnish water to the village ,at any time within a year from this date, and that respondent does not own or possess any other means of supplying water to the village.

Avers that the village has now, no means whatever of caring for or conserving the water it demands of this respondent, and that if respondent should comply with said demand the water would run to waste, and that to require this respondent to furnish water to said village at the present time or at any time within the next six months would simply be to waste water and put this respondent to a heavy expense and to put the taxpayers of the village of Burnham to a heavy expense without giving them any benefit.

The record shows that upon the filing of the answer the petitioner moved the court for judgment on the petition and answer, and thereupon the court entered the following judgment:

“And this cause coming on to be heard upon the petition and answer thereto and upon the motion of petitioner that judgment be entered in its favor upon the ground that the answer admits the allegations set forth- in the petition to be true and the court having read the petition and answer thereto and having heard the arguments of counsel and being fully advised in the premises, hereby orders that a writ of mandamus issue out of this court to the said city of Chicago, directing it, the said city of Chicago, to furnish water at the boundary line between the village of Burnham and the said city of Chicago by means of the waterworks of the said city of Chicago, to the corporate authorities of the said village of Burnham, in such quantities as may be required, to supply consumers within the said village of Burnham and that such water be supplied to the said village of Burnham by said city of Chicago at no greater price or charge than it, the said city of Chicago, charges and collects of consumers within its limits for water furnished through meters in like large quantities, when the village of Burnham notifies the city of Chicago, in writing, that it, the said village of Burnham, is ready to receive said water.”

The petition avers, “That the village of Burnham does not own a system of waterworks and did not at the time of the creation of the Sanitary District.”

The answer avers that the village has now no means whatever of caring for or conserving the witter it demauds of this respondent, and that if respondent should comply with said demand the water would run to waste, etc.

In Dement et al. v. Rokker et al., 126 Ill. 174, 191, it is said: £ £ The rule is familiar, that to entitle a party to the writ of mandamus, he must show a clear right to the relief sought. If the right be doubtful, the writ will not be awarded. People ex rel v. Trustees of Schools, 86 Ill. 613; Brokaw v. Commissioners, 118 id. 239; Board of Supervisors v. People, id. 459.” The rule is stated in People v. Mayor, etc., Chicago, 51 Ill. 17, 28, as follows: “The writ is only to be awarded in a case where the party applying for it shall show a clear right to have the thing sought by it done, and by the persons or body sought to be coerced. The People v. Hatch, 33 Ill. 9.”

We are of the opinion that the fact shown in the petition that the petitioner at the time of filing it had no system of waterworks, supplemented by the fact stated in the answer, which is not denied, that the petitioner had no means whatever of caring for or conserving the water when delivered shows that the petitioner at the time of filing its petition had no right to invoke the provisions of the statute. It was only a naked legal right under the statute, which the petitioner might invoke when, and only when, it had placed itself in a position to use the water when delivered, by providing some means for using and distributing it to the inhabitants of the village. We do not think that the petitioner, while it has no means whatever for caring for or using the water when delivered at the boundary line of the petitioner, has the right to a mandamus against the appellant to do a useless thing, which involves an expense of money large or small in amount depending upon the facts of the situation. For anything that appears in the record the petitioner may never put itself in the position where it can use and distribute the water which it is seeking by this proceeding to compel the appellant to furnish to it. The right, to say the least, is not clear. It is doubtful.

“The writ (of mandamus) is never awarded to settle mere abstract rights, unaccompanied by practical or substantial benefits.” North v. Trustees, etc., 137 Ill. 296.

In our opinion the answer presented an issue which the appellant was entitled to have tried in the manner provided by law, and the issue could not be tried on a motion for judgment. The respondent did not waive any right by resisting a motion for judgment. Appellant did not submit its case by resisting the motion, either actually or by implication. The case of People v. City of Danville, 147 Ill. 127, is not in point. That case was an original case in the Supreme Court, and the parties having voluntarily submitted the case to the court on printed arguments the court, although in some doubt as to what should be done with the case, considering the state of the record, treated it as a case submitted for trial on the petition and answer. That is not this case, for there was no submission of the case by appellant to the court for trial.

There was manifest error, in our opinion, in disposing of the case on motion and without a trial.

The judgment provides that the defendant—appellant—furnish the water to the petitioner when the village “notifies the city of Chicago in writing that it, the said village of Burnham, is ready to receive said water.” By this judgment the city of Chicago is required to look beyond the writ to the notice which the village may serve upon it at any time. The judgment in mandamus is like the judgment in any other proceeding at law. It should be clear and complete in itself. “The respondent should not be required to look beyond the writ to ascertain the precise acts which he is required to perform.” Encyclopedia of P. & P., Vol. 13, p. 784, and authorities there cited. The writ must follow the judgment. A writ requiring performance “according to law” is bad. In Florida Cent., etc., R. Co. v. State, 31 Fla. 513, it is said: “The requirement of the respondent to construct its depots in conformity with the ordinance of the town of Tavares not only overstepped the case as made by the recitals of the petition and writ, but left the respondent’s duty thereunder in a state of uncertainty, to be ascertained from the town ordinance, if there was any, entirely dehors the writ.”

Another fatal objection to the judgment is, that if the provison above referred to is valid, it leaves the appellant at the mercy of the petitioner which may serve the notice when it is not ready to receive the water, and when no practical or substantial benefits would follow, and thus the city is placed in a position where it would be bound to deliver the water, upon receiving notice, without any right or power to question the truth of the notice. The petitioner, by serving the notice at any time, will bé entitled to have issued a peremptory writ, which the court declined to grant according to the prayer of the petition.

Furthermore, if this construction of the judgment is correct, before the clerk may issue the writ there must be presented to him evidence that the notice required by the judgment has been served upon the respondent city of Chicago, and he must determine the sufficiency of the notice and the service thereof.

There is another construction to be placed on the judgment which is as reasonable as that suggested above, namely, that the writ shall issue at once, but the respondent is not required to obey it until the notice provided for has been served upon it. We are unable to determine which construction is correct. Either construction makes the judgment erroneous. Thus, this record illustrates the wisdom and necessity of the rule of law above quoted that the respondent should not be required to look beyond the judgment and writ to ascertain the precise acts which he is commanded to perform.

For the errors indicated' the judgment of the Circuit Court is reversed and the cause is remanded.

Reversed and remanded.


text:
    Steve Galomopoulos, Appellee, v. Nick Petropoulos, Appellant.
    Gen. No. 14,407.
    1. Vbbdict—effect of inconsistent. A verdict which is inconsistent with any possible theory of the case consistent with the evidence, will be set aside on review.
    2. Vbbdict—when set aside as against the evidence. A verdict manifestly against the preponderance of the evidence will be set aside on review.
    Assumpsit. Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed and remanded.
    Opinion filed February 16, 1909.
    Statement by the Court. In the month of February, 1904, appellee, Galomopoulos, and appellant, Petropoulos, formed a copartnership for the purpose of conducting a meat market and grocery in the city of Chicago. They conducted their business until May, 1906, when the partnership was dissolved. Thereupon they considered plans or methods for the settlement of their business, and on May 25, 1906, appellee offered to purchase the share or interest .of appellant for $2,900. This offer appellant accepted, and appellee paid appellant $200, which he borrowed from one ■Kapsamalacos, to bind the bargain. Appellee then took possession of the store and property and conducted the business for three days, during which the receipts from the business amounted to about $125. It is claimed by appellee, but denied by appellant, that ¡the next day after appellee agreed to purchase appellant’s share and interest, appellee, at appellant’s request, paid appellant $300. Appellee, finding that he was unable to raise sufficient money to purchase his partner’s interest, on the third or fourth day after he had taken possession under his agreement to purchase, informed appellant that he did not have the necessary amount of money and could not go on with the agreement. Appellant, after further negotiations, made a proposition to appellee to purchase his interest for $2,100, as appellant says, or $2,300 as appellee claims, and to repay the $200 which appellee had paid to appellant, appellee to retain the $125 which he had received while running the business. Appellee testified that he asked appellant about the $500 he had given appellee and appellant said he would return it. Appellant on the other hand testified that he was to return to appellee the $200 which he had received, and that he did not receive from appellee the $300 and did not agree to return to him $500 so paid to him.
    The parties, under the impression that they had come to an agreement, repaired to the Greek Consul’s office in Chicago to have the necessary papers prepared for the dissolution and settlement of the partnership. Appellant paid appellee $1,300 in cash and gave bim two notes of $500 each for his share or interest in the copartnership and then signed the following agreement:
    “Chicago, Illinois, May 28th, 1906.
    We the undersigned, Steve Galomopoulos, and Nick Petropoulos, do hereby dissolve our copartnership in the business of the Grocery and Meat Market at No. 49-51 Blue Island Avenue, Chicago, Illinois, said Nick Petropoulos remains the sole owner of the business, leasehold and deposit with the Edison Electric Company and that all accounts among said co-partners are settled this date, either co-partner has any claim against the other.
    Nick Petropoulos,
    Steve Galomopoulos. ’ ’

    The testimony of Dr. Solopoulos, the Greek Consul, is in substance that he asked both parties whether there were any other accounts between them except the $1,000 of notes, and they told him there were none. He told them, “they must have an agreement between them that they settled every account between them. I suggested to my secretary that he write on that paper that they have absolutely no account between-them and that everything was settled. I asked them again after the paper was signed whether either one claimed anything from the other and they said, No.”
    Appellee brought this action in the County Court against appellant for $500, $200 of which he paid appellant to bind the bargain which was abandoned, and $300 of which he claims to have paid appellant on the following day. The jury returned a verdict for $300 in favor of appellee and the court, after overruling a motion for a new trial, entered judgment thereon from which this appeal is taken.
    Novak & Pollack, for appellant.
    Egbert H. Stoll, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The only question presented by the record is whether the weight of the evidence justifies the verdict and judgment. We are satisfied from an examination of the evidence that a new trial should be awarded. The judgment is inconsistent with any possible theory of the case consistent with the evidence. The evidence justifies a verdict and judgment for $500 in favor of the plaintiff, or a verdict for the defendant. It is an action ex contractu, and if the jury were justified in finding against the defendant it should have been for $500. The evidence as to the $200 is more definite and clear than that relating to the $300 item which the jury appears to have adopted as the basis of its verdict. Furthermore, the preponderance of the evidence in our opinion, is against the verdict. The jury, as it seems to us, has transgressed the rule applicable to the case in awarding the damages expressed in their verdict. We have no hesitation in setting aside the verdict. The court erred in overruling the motion for a new trial.

The judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.


author: Mr. Justice Baker

text:
    Emil Brauninger, Defendant in Error, v. The National Light, Heat and Power Company, Plaintiff in Error.
    Gen. No. 14,333.
    Accobd and satisfaction—what essential to valid. In order that an accord and satisfaction may constitute a defense to an action it must appear that the same was executed.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. William N. GemmilL, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed February 16, 1909.
    Statement by the Court. This writ of error brings before us for review a judgment of the Municipal Court for $100, recovered by defendant in error against plaintiff in error in an action of the fourth class.
    Plaintiff entered the service of defendant January 2, 1907, under a written agreement between said parties by which defendant promised to pay plaintiff a salary of $25 per week. Plaintiff, Summers, Ander and Bible each held $15,000 and Lawrence $25,000 of the capital stock of defendant, issued on the payment of ten per cent, of the par value of such stock. But a small amount of the capital stock of defendant had been issued in addition to the shares issued to the parties above named. Each of said persons appears to have been employed by defendant at the time plaintiff was employed, and at the same salary or wages.
    February 12, 1907, the following instrument was signed by plaintiff, Lawrence, Summers and Bible, but not by Ander:
    “February 12, 1907. We, the undersigned, hereby agree to contribute to the running expenses of the National Light, Heat & Power Co. to the extent of $75 each, in case same is heeded, while effort is being made to interest new capital. We also agree to take stock in said company to the extent of our contributions and for our salaries.”
    A day or two after February 12 plaintiff, Summers, Bible and Ander, each surrendered his contract of employment to the defendant, and Lawrence assumed the management of the company. No one of the signers of the instrument of February 12 paid to the defendant any part of the money he thereby agreed, “to contribute to the running expenses,” of defendant, and the defendant did not issue or offer to issue any stock to the plaintiff for or on account of his salary. Defendant paid plaintiff on his salary or wages $41.
    0 ’Donnell, Dillon & Toolen, for plaintiff in error.
    Anderson & Anderson, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

The contention of plaintiff in error is, that by the surrender by the plaintiff of his contract of employment to the defendant that contract was rescinded and plaintiff’s employment terminated. From January 2 to February 12, both inclusive, is forty-two days— six weeks. Plaintiff’s salary or wages for that time would be $150, and he had been paid but $41, leaving due him as salary or wages, a sum somewhat in excess of the amount of his recovery.

We are unable to find in the facts of the case any valid defense to plaintiff’s action for his salary or wages under the contract up to the time of the surrender thereof. The defense of accord and satisfaction is not made out by the evidence. The paper dated February 12, 1907, does not purport to be a contract between plaintiff and defendant. It was signed by four of the five principal stockholders of the defendant, and was not signed by the fifth, Ander, who held $15,000 of the stock. But treating that instrument as a contract between plaintiff and defendant, it cannot be held to amount to or constitute a defense to plaintiff’s action for wages due at the time such contract was entered into, for the agreement thereby made was never executed. Defendant did not deliver nor plaintiff accept stock for the salary then due. When an accord is relied on it must be executed. Simmons v. Clark, 56 Ill. 96; Jacobs v. Marks, 183 id. 533.

We find no error in the record, and the judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    William. P. Croupp, Appellant, v. Garfield Park Sanitarium, Appellee.
    Gen. No. 14,348.
    1. Hospitals—care due patients. A person conducting a hospital for pecuniary profit owes' to a patient received the duty to use reasonable care for his safety and reasonable skill and diligence in nursing him.
    2. Pleading—particular declaration construed. Held, that a declaration in case in question in this cause stated three distinct causes of action.
    3. Negligence—when owner of hospital guilty of. Held, that the jury might reasonably find that under certain circumstances it was negligence for the nurses of a hospital to leave a patient unattended for a period of five minutes.
    4. Negligence—when not actionable. Notwithstanding an act may be negligent, it will not sustain a recovery if it did not proximately result in the injury complained of; if the consequences ensuing the negligence could not reasonably have been anticipated, then the negligence is not actionable.
    5. Instbuctions—interest of plaintiff. It is not error to tell the jury in an action where the defendant is a corporation that they may take into consideration the fact of the plaintiffs interest in the result of the suit.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; Hon. William H. McStjbely, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed February 16, 1909.
    Statement by the Court. This is an appeal by the plaintiff from a judgment for the defendant, entered on a verdict of not guilty, in an action on the case for personal injuries. The action was brought against appellee and two other defendants, but at the close of the evidence plaintiff took a non-suit as to the defendants other than appellee.
    The declaration contains four counts, the allegations of which are the same, with the exception of the allegations of negligence. The first count, omitting the reference to the defendants as to whom plaintiff took a non-suit, alleged that the defendant, Garfield Park Sanitarium, was a corporation of Illinois, and possessed a building No. 1776 Washington boulevard, Chicago, used as a hospital or sanitarium for the reception of persons afflicted and of treating and curing such persons; that on March 1, 1905, plaintiff, who was suffering from rheumatism, was received in said sanitarium by the defendant for the purpose of being treated for the same; that he was placed by defendant’s servants in a certain bed, his limbs having been theretofore bound with cotton and bandages saturated with liniments, and was taken charge of and treated by defendant’s servants, who placed him upon a certain pan or vessel in said bed, and carelessly and negligently left him alone in the position aforesaid for a period of half an hour; and plaintiff, who was in the exercise of ordinary care, became weak, exhausted and faint to such an extent by said pan being placed in contact with his flesh and the unnatural position of his limbs and body that he involuntarily moved or changed his position, and in so doing a match which defendant’s servants had carelessly and negligently dropped and allowed to remain in said bed became ignited and set fire to the cotton and bandages surrounding plaintiff’s person, and plaintiff, endeavoring to escape the flames fell upon the floor and was severely burned and injured; that he was replaced in the bed and caused to remain there the space of one week, during which time certain filth was negligently allowed to remain in and upon said floor, causing an unwholesome odor to pollute the air in said room, thereby aggravating plaintiff’s suffering, etc.
    That as a consequence of defendant’s negligence, he was injured externally and internally in mind and body; his nervous system and brain injured and impaired; his limbs and body severely and permanently injured and burned; his system became infected and poisoned; and he became sick, etc., and he will suffer the effects of said injuries during the remainder of his life, etc.

      The negligence alleged in the second count is that defendant carelessly and negligently left plaintiff alone in the position aforesaid for half an hour; that while in the position aforesaid, as a consequence of defendant’s negligence and carelessness, the bed clothing and bandages surrounding plaintiff’s person became ignited and caught fire, and in endeavoring to escape the flames and fire as aforesaid, the plaintiff fell from said bed and in so doing tipped over the pan or vessel as aforesaid and thereafter defendant’s servants replaced plaintiff in the bed and caused bfm to remain there for the space of one week, etc.
    The negligence alleged in the third count is that defendant carelessly and negligently left plaintiff alone for a period of one-half hour and plaintiff, who was in the exercise of ordinary care, became weak, exhausted and faint by reason of the unnatural and strained position in which he was allowed to remain, and the pain caused thereby, involuntarily moved or changed his position, and in so doing caused a certain match, which had been negligently and carelessly allowed to be and remain in said bed, to become ignited and set fire to the cotton and bandages surrounding-plaintiff’s person, and in endeavoring- to escape the flames plaintiff fell upon the floor and was severely burned, and in falling tipped over said pan; that defendant’s servants carelessly and negligently allowed the filth to remain upon the floor for one week, during which time plaintiff was obliged to remain in said room, during all of which time defendant carelessly and negligently allowed the air in said room to be in an unwholesome, unsanitary, etc., condition, causing plaintiff great injury and aggravating plaintiff’s weak condition, etc.
    The negligence alleged in the fourth count is that defendant negligently placed plaintiff in the charge and care of certain incompetent and careless servants, who placed plaintiff upon a pan and carelessly and negligently left plaintiff alone in the position aforesaid for one-half hour, and plaintiff, who in the exercise of ordinary care, became weak, etc., by reason of the unnatural position in which he was allowed to be and remain, involuntarily moved or changed his position and in doing so, ignited a match which had carelessly and negligently been allowed to be in said bed and set fire to the cotton and bandages of plaintiff, and while endeavoring to escape the flames fell upon the floor and was severely burned, etc.; that plaintiff was thereafter placed on said bed and caused to remain there for one week, during which time defendant negligently failed to properly care for him and negligently allowed the air in said room to become polluted and unsanitary, thereby increasing and aggravating plaintiff’s suffering and condition.
    March 1, 1905, plaintiff had an attack of inflammatory rheumatism and called Dr. H. L. Gregg to attend him as a physician. Desiring to go to a hospital, he engaged a room at defendant’s sanitarium at the price of $15 per week, and in the evening of March 2, was taken there in an ambulance as a private patient of Dr. Gregg. Dr. Gregg continued to be plaintiff’s physician until March 6, when he became ill and sent his wife, Dr. Helen E. Gregg, in his place. She was plaintiff’s physician until March 9, when he discharged her and sent for Dr. Post. Dr. Post was his physician from March 10 to 13, when he sent for Dr. Doepp, and was on the same day taken to another hospital.
    Before going to defendant’s sanitarium a liniment was applied to plaintiff’s legs, which were then bandaged with cotton batting tied on with strips of cotton cloth. He was carried to a room by the ambulance men. There he was undressed by two friends who accompanied him, the bed was prepared for him by a nurse in the service of the defendant, and he was placed in the bed by the ambulance men. His vest, in which was his watch, was hung on a bed post at the head of his bed. The ambulance men and plaintiff’s friends who came with him then left. He was given an enema and soon afterwards was placed by the attendants on a bed-pan. He was then left alone in the room half an hour or longer, according to his testimony; five minutes according to the testimony of the attendants.
    Plaintiff testified that, wishing to get off the bedpan, he tried to get over to the edge of the bed so that he might put his feet on the floor; that he heard the scratch of a match and in a second the bandages on his legs were on fire; that he threw himself out on the floor; that the pan was upset and its contents spilled on a rug; that he called for help and attempted to pull the bandages off his legs; that he could not do so until the strips of cloth which bound the bandages to his legs were burned through, and that no one came until he had the bandages about pulled off, when two attendants came, put out the fire and put him back in the bed. Plaintiff’s legs, which were badly burned, were then dressed by a physician in the service of the defendant and were redressed and rebandaged by Dr. H. L. Gregg, Dr. Helen Gregg, and Dr. Post, during the time that each attended him as his physician. Each of said physicians, and five other witnesses who were nurses or attendants in the service of the defendant at the time of the accident, testified that plaintiff in response to questions as to how the fire started, stated that in taking his watch out of his pocket he pulled out a match which was ignited in some way, or that he lit a match to look at his watch, and that the bandages caugh fire from the match. Plaintiff denied that he had made any such statements to any of said witnesses.
    Todd & Morrison, for appellant.
    Calhoun, Lyeord & Sheean, for appellee; Egbert J. Slater and Edward W. Eawlins, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

The defendant conducted a private sanitarium or hospital for pecuniary profit, and received plaintiff, who was then ill and helpless, as a patient therein at the price of $15 per week. Under such facts and circumstances the defendant owed plaintiff the duty to use reasonable care for his safety and reasonable skill and diligence in nursing and caring for him.

The contention of appellant appears to be that each of the counts of the declaration states two or more distinct breaches of the duty the defendant owed to the plaintiff, under the facts and circumstances stated in each count, each count constituting a separate and distinct cause of action; that the causes of action stated in the declaration are: First, the defendant negligently left plaintiff alone and in consequence thereof the bed clothing, and the bandages on his legs, caught fire and thereby he was burned and injured ; second, the defendant negligently, etc., permitted a match to be and remain in his bed which, without fault on his part, was ignited and set fire to the clothing and bandages, whereby plaintiff was burned and injured; and third, that after plaintiff was burned, defendant negligently failed to properly care for him and negligently allowed the air of the room in which he was to become and remain polluted and unsanitary, thereby aggravating his suffering and condition and injuring him, etc.

"Whether the allegations of said counts, other than the second, in respect to leaving plaintiff alone, can be regarded as stating a cause of action separate and distinct from the cause of action therein alleged in respect to the presence of a match in the bed, it is not necessary to decide. The negligence alleged in the second count is that defendant negligently, etc., left plaintiff alone, and that in consequence thereof the bed clothing and bandages caught fire and plaintiff was burned, etc., and there is no reference in the count to the presence of a match in the bed.

The allegations of each count, that after plaintiff had been burned, he was put back in the bed and caused to remain there a week, during which time the defendant negligently, etc., failed to properly care for him and negligently allowed the air of said room to become polluted and unsanitary by reason of certain filth which was permitted to remain on the floor of said room, thereby increasing and aggravating plaintiff’s suffering and condition, etc., appear to have been treated by the parties and the court as stating a separate and distinct cause of action and will be so treated by us. The declaration will therefore be held to state the three distinct causes of action which appellant contends that it states.

The court gave for the defendant the following instruction :

“The court instructs the jury that before the plaintiff can recover in this case for any injuries sustained through the ignition of the bandages and dressings on plaintiff’s person, he must proye by a preponderance or greater weight of the evidence each of' the following propositions: 1. That at the time of the occurrence in question there was a match in the bed in which the plaintiff was. 2. That the defendant knew of the presence of such match in said bed, or by the exercise of ordinary care and caution on its part would have known of such presence. 3. That said match ignited and thereby caused the injuries to the plaintiff. 4. That plaintiff himself was not guilty of any negligence which proximately contributed to bring about his injuries.

The burden of proving each and every one of the foregoing propositions is upon the plaintiff. If the plaintiff has failed to prove by a preponderance of the evidence any one or more of these propositions, or if the evidence on any one or more of said propositions is evenly balanced, or preponderates in favor of the defendant, then and in such case you have no discretion, and under the law the defendant cannot in such circumstances be held liable for any injuries sustained by the plaintiff through the ignition of said bandages and dressings.”

So far as this instruction takes from the jury the question whether the servants employed by the defendant to take charge of the plaintiff were incompetent, appellant has no cause to complain. The declaration does not allege that defendant knowingly employed incompetent servants or knowingly retained in its service incompetent servants.

The instruction also takes from the jury the question whether the leaving of plaintiff alone, under the circumstances alleged in the declaration-and proved at the trial, was negligence and whether such negligence, if the jury found that the act amounted to and was negligence, was the proximate cause of the fire by which plaintiff was burned and injured.

We think that the jury might properly find that the act of the servants of defendant in placing plaintiff on a bed-pan after giving him an enema and then, after his bowels began to move, leaving him alone in the room for five minutes, was, under the circumstance's and in view of his helpless condition, negligence of such servants under such circumstances as made such negligence the negligence of the defendant. But to find the defendant liable for the consequences of the fire, the jury must find both, that leaving plaintiff alone in the room was negligence on the part of defendant, and that such negligence was the proximate cause of the fire by which plaintiff was burned and injured. Whether the jury might properly find that such negligence was the proximate cause of the fire by which plaintiff was injured, depends on the question whether a fire in the bed or room in which plaintiff was, was within the range of consequences reasonably to be expected from such negligent act. It is not sufficient that an injury of an entirely different character from that sustained might reasonably be expected from such negligent act. To render such act the proximate cause of plaintiff’s injuries damages of the character which- he sustained, damages by fire, must have been within the consequences of the act reasonably to be expected. Houren v. C., M. & St. P. Ry. Co., 236 Ill. 620. We do not think that ignition of a match and setting on fire of the bandages on plaintiff’s legs thereby was within the range of consequences reasonably to be expected in the light of attending circumstances from leaving plaintiff alone, and therefore think that the jury could not properly infer that such act was the proximate cause of plaintiff’s injuries. It follows from what has been said that in our opinion the court did not err in giving the instruction in question.

We do not think that the court erred in giving for the defendant the following instructions:

“20. The court instructs the jury that if you believe from the evidence in this case that the plaintiff lighted a match for the purpose of seeing what time it was by his watch and that the fire by which the plaintiff was injured originated from such match, then the law exempts the defendant from any liability to plaintiff for injuries caused by such fire.

“21. The court instructs the jury that even though you believe from the evidence in this case that there was a match in the bed in question, and that such match caused the injuries to plaintiff, yet, if you further believe from the evidence that the plaintiff himself negligently dropped or placed such match in said bed, then the defendant cannot, under the law, be held liable for the consequences of the fire started by such match.”

If the plaintiff was responsible for the presence of the match in the bed and its ignition, he could not hold the defendant liable for the consequences of the fire thus started.

The court also gave for the defendant the following instructions:

“23. The court instructs the jury that there is no proof in this case that plaintiff’s suffering and unhealthful condition were in any manner increased or aggravated through any negligence upon the part of the defendant subsequent to the time of the origin of the fire by which plaintiff was burned. Therefore, unless the greater weight of the evidence shows that the origin of the fire by which plaintiff was burned was due to the negligence of the defendant, it is your duty to return a verdict of not guilty.

“24. The court further instructs the jury that the evidence in this case fails to show that the injuries and suffering of plaintiff caused by the burning which the evidence discloses, were in any manner increased or aggravated by any carelessness or misconduct on the part of the defendant. Therefore, in considering and determining the question whether the defendant is liable to the plaintiff in this case, you are instructed entirely to disregard all proof with reference to any odors in the room in question' and with reference to • the condition of said room.”

The defendant kept the plaintiff in its sanitarium ten days after he had been burned and it was its duty, no matter how the fire occurred, to use reasonable care, skill and diligence in nursing and caring for him, and if defendant was guilty of a breach of that duty and plaintiff suffered injury therefrom, for such injury the defendant is liable.

There is evidence in the record tending to show that the room in which plaintiff was kept after the fire was not kept tidy or even clean; that there were in it unpleasant and offensive odors. But there is no evidence tending to show that his sufferings were aggravated or his physical condition made worse by the condition of the room or the presence of such odors. In the absence of such evidence the jury could not properly infer or conclude that his suffering was aggravated or his condition made worse by the condition of the room or the odors therein. We think that, on the evidence, the court did not err in giving defendant’s instructions 23 and 24.

It was not error to give defendant’s instruction 6, which told the jury that in weighing plaintiff’s evidence they might take into consideration the fact that he was the plaintiff and interested in the result of the suit. W. C. St. R. R. Co. v. Dougherty, 170 Ill. 379.

The court also gave for the defendant the following instruction:

“13. The court instructs the jury that while it was the duty of the defendant to exercise ordinary and reasonable care and caution to prevent injury to plaintiff, yet, the defendant was not required by law to be on its guard against the unusual, extraordinary or not-reasonably-to-be-expected; and if you believe from the evidence in this case that it was not reasonably to be expected by the defendant that an occurrence such as the one which resulted in injury to the plaintiff would take place, then the defendant, under the law, is in no manner liable for said occurrence.’.’

This is no more than a statement of the general rule: “that in order that negligence or an act not amounting to wanton wrong, is proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligent or wrongful act, and that it ought to have been foreseen in the light of attending circumstances.” R. R. Co. v. Kellogg, 94 U. S. 469, 475; C. U. T. Co. v. Browdy, 206 Ill. 615, 619; Scanlan v. C. U. T. Co., 127 Ill. App. 406.

The record is, in our opinion, free from error, and the judgment of the Superior Court will be affirmed.

Affirmed.


text:
    Joseph L. Strauss et al., Defendants in Error, v. John Fornaciari et al., Plaintiffs in Error.
    Gen. No. 14,360.
    Landlord and tenant—when latter cannot avoid forfeiture. Wliere, by the terms of a lease, notice and demand of rent due are waived, the lessor may without notice or demand declare the term ended and by such declaration, notice thereof and notice to quit to the lessee, the term of the lease is ended and the lessee cannot thereafter by tendering the rent avoid the forfeiture.
    Forcible entry and detainer. Error to Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed February 16, 1909.
    Statement by the Court. This writ of error brings before us for review the judgment of the Municipal Court for the plaintiffs in an action of forcible entry and detainer. The lease entered into between the parties contains the following provisions:
    “It is expressly agreed between the parties hereto that if default be made in the payment of rent * * * it shall be lawful for the party of the first part * * * at any time thereafter at the election of said first party without notice or demand of rent to declare said term ended.” * * *
    “It is further agreed by the parties hereto that after the service of notice or the commencement of a suit or after final judgment for possession of said premises the first party may receive and collect any rent due and the payment of said rent shall not waive or affect said notice, said suit or said judgment.”
    The defendants failed to pay $70 rent, which by the term of the lease fell due December 1, 1907, and December 16, 1907, the plaintiffs gave the defendants notice in writing that in consequence thereof they had elected to terminate their lease and notice to quit and deliver up possession of said demised premises in ten days from the date of said notice. The testimony for the plaintiffs tends to show that within the ten days mentioned in said notice the defendants tendered to plaintiffs the rent then dne, and that for the defendants,'that no such tender was made.
    M. H. Host, for plaintiffs in error.
    Israel Shrimski, for defendants in error.
   Mr. Justice Baker

delivered the opinion of the court.

The terms of the lease expressly provide that the plaintiffs, the lessors, may, in case of default in the payment of rent, without notice or demand of rent, declare the term created by the lease ended and re-enter, etc. No demand or notice was, under the terms of the lease, necessary to enable the lessors to declare the term ended in case of default in the payment of rent. The lessors declared the term ended, gave notice to the lessees of such election and a notice to quit before this action was brought. It is immaterial whether the lessees did or did not tender to the lessors the rent within the time fixed in the notice for the surrender of the possession. Such notice is necessary, where notice and demand are not waived, to entitle a lessor to terminate the lease, for non-payment of rent, and within the time specified in the notice, the tenant may pay the rent in arrear and prevent a forfeiture. Chapman v. Kirby, 49 Ill. 211; Woods v. Soucy, 166 id. 407.

But where by the terms of the lease notice and demand are waived, the lessor may, without notice or demand, declare the term ended, and by such declaration, notice thereof and notice to quit to the lessee, the term of the lease is ended, and the lessee cannot thereafter, by tendering the rent, avoid the forfeiture. Espen v. Hinchliffe, 131 Ill. 468; Belinski v. Brand, 76 Ill. App. 404; Lane v. Brooks, 120 id. 501; Kenyon v. Manley, 125 id. 615.

The judgment of the Municipal Court will be affirmed.

Affirmed.