text:
    The Merchants Underwriters at the Indemnity Exchange et al., Plaintiffs in Error, v. The Parhurst-Davis Mercantile Company, a corporation, Defendant in Error.
    Gen. No. 13,677.
    1. Insurance—“concurrent” insurance clause construed. A clause in a policy of fire- insurance which provides that “$150,000 total concurrent insurance is permitted” means $150,000 in addition to the policy in which the clause appears.
    2. Insurance—how policy to be construed. A policy of insurance ambiguous in its terms is to be construed most strongly against the insurer.
    3. Insurance—good faith required of members of co-operative mutual organization. The court indicates in this case that cooperative mutual insurance organizations involving confidential and fiduciary relations might exist which would render it a fraud for one member to fail to make full and fair disclosure of premium rates required to be paid by him when placing insurance through the ordinary channels; but the court holds that this case does not come within such principle.
    4. Insurance—when defense under subrogation clause insufficient. A defense of settlement with a wrongdoer without the consent of the insurer, thus preventing the operation of the subrogation clause in favor of such insurer, is an affirmative defense, and must be sustained by evidence; first, that the claim against such wrongdoer actually existed; second, that the insured, without the consent of the insurer, actually released such claim.
    Bill in chancery. Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed April 6, 1908.
    Barger & Hicks and Ralph Crews, for plaintiffs in error.
    Frederick A. Brown, William F. Schoch and Lee Monroe, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

This is a writ of error sued out to reverse a decree entered by a chancellor of the Superior Court January 4, 1906, against the plaintiffs in error, who were defendants in that court, and in favor of the ParkhurstDavis Mercantile Company, a corporation, complainant there and defendant in error here. The decree is for the payment of $32,512.50.

The plaintiffs in error are certain persons and corporations who, with others, are combined for insurance purposes in an unincorporated organization or association called the Merchant Underwriters at the Indemnity Exchange. They are, however, a few only out of more than five hundred such corporations, firms and individuals scattered over the United States and the British Provinces in America who are members of said association. They were selected as the defendants in the bill of complaint filed in this cause, so the bill states, “as the representatives of all of the said subscribers and for the purpose of subjecting the funds which are now within the jurisdiction of the court to the payment of the complainant’s claims.”

William Williamson, B>. M. Williamson, W. B. Thayer, S. L. Underwood and E. E. Smith, who are among the defendants below and the plaintiffs in error here, are a committee selected and acting under the agreement of these many members of the association, to supervise the business of the association (which was principally, under the agreement, actually to be performed by a manager, the said “William Williamson,” and his deputies, representatives and assistants), and to take in their charge and control the income of the association and “to pay therefrom such losses as may be determined by the manager as having occurred under policies issued by him. ’ ’ The decree for the payment of the money runs against them as having in their hands the funds properly chargeable, and they sued out the writ of error, the other plaintiffs in error subsequently appearing.

The plan and scope of the association, with all the provisions of the agreement that are important in this litigation, are set out in an opinion filed by this court in William Williamson et al. v. Warfield, Pratt, Howell Company, 136 Ill. App. 168, to which reference is now made for those details. The question was raised in that case, as it has been in the one at bar, whether it was a proper case for the exercise of equitable jurisdiction. We held that it was such a case for reasons set forth in the opinion. As thé opinion in that case, however, was not filed until after, in this case, the writ of error was sued out and the original briefs and arguments printed, this question has been herein again argued. It is conceded, however, by the plaintiffs in error in their reply brief, that in all but one point (which we do not think differentiates the cases) their contentions in this regard are negatived by this court in the opinion in the Warfield Company case. The suggestion that the allegation in the bill that “the subscribers to the written agreement, who by the terms and conditions thereof became liable for the payment of the sums due to the complainant under the policies, have made payments of large sums of money required by the terms of the agreements to be by them made, of which sums so paid more than fifty thousand dollars are now in the hands of and under the control of the committee,” shows “that there is an adequate remedy at law against the committee as individuals for money had and received,” does not appear to us forceful. As we have indicated, it does not distinguish this case from the Warfield Co. case. In that case there was, as we found, a sum in the hands of the committee to pay losses, largely in excess of the amount claimed by complainant, but we said there, as we can say here, “The fund in question was one accumulated in the hands of the appellants under a system and plan of business which placed them strictly in fiduciary relations to it. It was theirs to manage and control in the interests of others who had no power of interference with it. The complainant had a right to a special distribution of it, which it could only enforce through those who controlled it. It was, for the purposes of this litigation, a trust fund, and the committee which held it were trustees; and this independently of any technical question as to their holding the legal title to it. This is the doctrine of right reason, and it is also, we think, fortified by anthority.”

We have not changed our opinion on this point. The Warfield Company case is now in the Supreme Court. Unless and until we are overruled by that higher authority we shall adhere to the conclusion we have formed.

This case must therefore be considered by us on its merits. Was the complainant below entitled, as held by the chancellor, to the decree in its favor on the insurance contracts which it set up in its bill and established by its proofs ?

The defendants below especially affected by the decree attempted to secure a review of this question on appeal two years ago, but the appeal was dismissed by the Branch Appellate Court March 5,1907, for the want of a sufficient appeal bond. 131 Ill. App. 617. The present writ of error was then sued out.

It is not denied that policies of insurance as set up in the bill were issued to the complainant therein, The Parkhurst-Davis Mercantile Company, by The Merchants ’ Underwriters at the Indemnity Exchange—one for $10,000, dated May 29,1903, and another for $20,000, dated October 13,1903—both covering its general stock of merchandise at Topeka, Kansas, and insuring it up to the amounts named against loss or damage by fire, and each running for a year from its date. Nor is it denied that on February 13, 1904, the stock insured was burned and damaged by fire to an amount greater than all the insurance which the complainant had upon it.

The defense that is made to the claim of complainant that this rendered The Merchants’ Underwriters, etc., liable for the amount of its policies is threefold. We will take up each of the three points in this defense separately, first stating each in the terms employed by the plaintiffs in error.

The first is: “ That the complainant in taking out insurance in the total sum of $160,000, without notice or consent of the Merchants Underwriters, while only permitted by the terms of the policies sued on to carry a total concurrent insurance of $150,000, rendered the said policies void.”

If by this statement it is meant that the policies sued on only allowed $150,000 of insurance altogether, we think it is a misconstruction of them. The clause in question, identical in both policies, is simply this: “$150,000 total concurrent insurance permitted.” This immediately follows the effective insurance clause naming the amount, the term and the property insured. That is, the insurer declares that it insures the stock in question for one year to the amount of $10,000 in one case and $20,000 in the other, and then says that $150,000 total “concurrent” insurance is allowed. What does “concurrent” mean in this connection? “Bunning with” is the etymological meaning of the word. “Operating with” is one of the principal meanings given to it by standard lexicons. “Bunning luitli’’ what? “Operating with” what? The insurance just issued, it seems to us. But if a total of $150,000 is to be allowed to “run with” or “operate with” the insurance policy in which the clause is found, it has not been exceeded. The insurance outside of the $10,000 policy is only $150,000. Outside of the $20,000 policy it is only $140,000. There is no claim that the property was insured beyond its value. We are quite aware that it is possible to put a different construction on the clause and to read it as meaning that all the insurance, including that made by the policy in which it occurs, was to be limited to $150,000. But this seems to us less natural than the construction which we have given to it. The use of the word “permitted” by the company, which is inapt to include the amount which it has itself written, seems rather to consist with .our interpretation.

The usual provision in the policy, that “This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy,” sheds no light on the matter farther than to emphasize the argument that the word “permitted” in the clause making an exception to this general provision, is used in its ordinary sense. No endorsed or added clause was necessary to make the $10,000 and the $20,000 policy valid in itself. The clause was necessary to make additional insurance allowable. How much additional and “concurrent” was “permitted?” The clause gives the answer, $150,000.

It is a commonplace of insurance law that where a provision is equally susceptible of more than one construction, that construction must be adopted which bears most strictly against the insurer. As in this case, the construction contended for by the complainant seems the more natural to us—it a fortiori must be adopted by us. We cannot agree with the Supreme Court of Missouri in its reasoning in construing a similar clause in Senor v. Western Millers Mutual Fire Ins. Co., 181 Mo. 104.

Our view renders unnecessary a discussion of the question, elaborately argued before us, whether the insurers waived the objection of over insurance, if it existed.

The second ground of defense is thus stated by the plaintiffs in error:

“The complainant, by misstating and failing and re-' fusing to correctly state to appellants the premium rate it was paying to other insurance companies for insurance upon its risk, committed a fraud upon the plaintiffs in error and thereby rendered the policies void.”

More developed, the contention is, that the insurance in question being obtained on a mutual and co-operative plan, whereby the parties insured agreed together, in order to get cheaper insurance, to insure each other at a fixed rate below the regular market rates for the same insurance by standard companies, good faith between the parties required the disclosure between themselves of everything involved in the plan, and concealment or conduct which induced a false impression on a material matter to remain fixed in the minds of the common agent, should, in the view of equity at least, avoid the policies or prevent their enforcement. The complainant would not, in such ease, be making his demand with clean hands. In the present case it is insisted that the complainant does not so make it—answers to material questions having been withheld and rates having been accepted and taken advantage of which the insured did, but the insurers did not, know were lower than by agreement the plan of co-operative insurance in which they engaged provided for.

We do not think the defendants have made good this defense. We do not say that the legal theory on which it is based is inadmissible. We can easily suppose a plan of co-operative insurance resembling that involved here, in which the relations of the insured to each other are such that the mere failure to report to the common agent the rates at which a participant can obtain his other insurance, even if no questions are asked, might show such a want of good faith and such an attempt at overreaching as to prevent his recovering in equity , the amounts for which he is nominally insured. But for several reasons we do not think the present such a case.

In the first place, the assumption contained in the argument advanced by defendants, that it was a part of the “plan of insurance” that the rate charged by them was to be in- every case fifteen per cent, less than the rate at which the members’ other insurance was written, is not borne out by anything within the four corners of either the “agreement” which the various members sign in becoming participants in the “plan,” nor in the policies which are issued to them. In the ‘ ‘ agreement ’ ’ the purpose is only said to be “to maintain an office where policies of fire insurance may be underwritten for the firms, corporations and individuals who have executed or shall execute” the agreement. The “plan” to effectuate this purpose is then laid out. With other things it provides that among the “Manager’s” duties shall be that of underwriting the subscribers’ policies of insurance, “to make cancellations and changes in the amounts and conditions of the same, and to perform such other acts in relation to such policies as the subscribers could themselves do.” There is nothing in the body of the agreement about the rate of premium, nor anything from which it could be inferred that it was not to be left to the discretion of the manager, who is made by the agreement the attorney and agent of the subscribers to transact all the insurance business of the association, under a “Committee,” consisting of three or more subscribers selected by the members; the duties of which committee are simply to “supervise the business by adopting proper regulations for the government of the Manager.”

Not in the contract, but after the signature, in an appended note, is this announcement:

“When a request for insurance is made the subscriber should inform the Manager what the insurance companies ’ rate then is, and also send two copies of his form. Where the insurance companies’ rates vary, the highest prevailing rate is the one to be given."

It may be noted that in this announcement even there is nothing to show that a rule of fixing rates at a definite discount from the standard premiums is a part of the “plan” of insurance.

In the policies themselves there is in the contract, over the signatures of the contracting parties, nothing whatever concerning the manner in which the rate is to be determined. Definite amounts, in consideration of which the insurance is made, are named in the policies —$150 for the $20,000 policy and $75 for the $10,000, and nothing more is said therein concerning the prerniurns. Upon the hack of the policies appear the following indorsements, which, with the announcement heretofore quoted, furnish all that can be found in or on the contracts to furnish a foundation for the assertion that the “plan” necessarily included a definite rebate from current “regular” insurance rates:

“Standard Fire Insurance Policy New York and Other States.

Expires June 15th, 1904.
Property: Stock:
Amount $10,000.00 Premium $75.00.
Assured: Parkhurst-Dayis Mer. Co.
No. 8598.
N. B. The Premium hereon is at the Insurance Companies’ Bate, the Net Premium to be paid for the policy being $11.25 less than same.
Issued by
The Merchants Underwriters at
The Indemnity Exchange, Chicago.
William Williamson,
Attorney and Manager.
B. M. Williamson,
Deputy.
It is important that the written portions of all policies covering the same property read exactly alike. If they do not, they should be made uniform at once.”

In this indorsement everything is written or printed but the clause following “N. B.,” which is stamped upon the policy with a rubber stamp, the figures $11.25 being inserted by a pen.

The indorsement on the other policy is this:

“No. 9339.
Expires October 27th, 1904.
Assured: Parkhurst-Davis Mer. Co.
Property: Main Stock.
Amount $20,000.
Bate $75.
(The Insurance Com- "] Premium..........$150.00
panies Bate). Allowance........ 22.50
Net Bate $63. J Net Prem......... 127.50
Issued by
The Merchants Underwriters at The Indemnity Exchange.
William Williamson,
Attorney and Manager,
Royal M. Williamson,
Deputy.”

If we should even assume that these entitling indorsements on the back of the policy are made a part of the contract, it is easy to see how far they are from making any condition or stipulation which would stamp as a part of the co-operative plan of the “subscribers” an invariable rule that a definite rebate was to be made from a rate to be fixed by definite methods of inquiry or report.

If such an arrangement was an essential part of the “plan” of insurance, and neglect to furnish the means of carrying it out was to impute to those obtaining insurance such bad faith as to avoid the insurance nominally issued to them, it is strange that in the instruments themselves, which they were called on to sign, this should not have been explicitly set down. But not only is such a provision wanting’, but another, and that the usual one in “Standard New York policies,” concerning frauds, concealments and misrepresentations, is inserted. The insertion of this usual and “standard policy” clause, instead of one recognizing the alleged peculiar mutually confidential relations of the parties, seems to us to furnish a second reason why we should hesitate to hold that in this case insured and insurer dealt less at arm’s length than in ordinary cases of insurance. The clause is this:

“This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss.”

“Indusio unins est exclusio alterius” is a legal maxim we think applicable here. Having inserted this clause in the policy, the insurers must stand by it, and unless the alleged “fraud” or “concealment” come within its terms, they cannot avoid the policy on account of it. To make it applicable, either the failure to answer the questions of the manager as to other rates must be regarded as a “concealment” “of a material fact or circumstance concerning the insurance or the subject thereof,” or it must have been “a fraud” “by the insured touching a matter relating to the insurance or the subject thereof.”

It is strenuously urged by the complainant that it is neither, for if a concealment at all, it is not of a “material” fact, since the rate charged by other insurance companies does not affect the character of the risk, and it cannot be a “fraud” to neglect to answer questions when the insurer has in his own hands the power to cancel the policy if he does not get answers to such questions.

It would be hard, we think, to escape from the force of this position, even without reference to the facts of this particular case as shown in the evidence of these facts seem to us to remove all doubt on the question involved and to furnish a third reason for holding the contention of the defendants that there was “fraud or concealment” in this matter vitiating the insurance contracts, to be unfounded.

The material facts shown by the evidence to affect this matter are these: The first transactions between the parties were in 1901. A representative of the Merchants Underwriters and of its manager called on Mr. Davis, the president of the complainant corporation, in Topeka, in October of that year, and solicited them to take insurance in the company, which involved, of course, under the plan of the defendants, subscription also to the agreement. The rate at first named as the one which the Underwriters would accept was the Board rate less fifteen per cent., but Mr. Davis refused to allow them to write insurance on that basis, saying that more inducement would have to be given, whereupon the Underwriters’ representative agreed to make a fiat rate of seventy-five cents on the hundred dollars, which was at least ten cents less than the then existing board rate, and to make a rebate of fifteen per cent, from that. On this basis, after the insurer’s representative had made a personal inspection of the risk, a policy for $20,000 was written like the one sued on.

In June, 1902, another policy for $10,000 was issued on the same risk at the same rate.

When the first policy was about to expire the Underwriters, by their manager, under date of October 13, 1902, sent, without application, another policy renewing the insurance for a year at the same rate. The latter, however, bore a postscript reading:

“P. S. If the rate at which our policy is written from which our allowance is shown, is not the amount of the highest rate now paid by you to any insurance company, kindly give us the correct rate. In that ease you need not, however, return the policy. ’ ’

No answer was made to this implied question as to rates, and no further demand made for an answer. On May 29, 1903, a similar letter (without a previous application) was written by Williamson, the manager of the Underwriters, enclosing a policy for $10,000 to renew the one expiring June 15,1904. To this also was appended a postscript as follows:

“N. B. Kindly name yonr present rate as soon as convenient, in case onr basis rate from which our allowance of fifteen per cent, is deducted does not conform as stated on the front of the policy. Where insurance is obtained at less than Board rates or at rates that vary, then in order that no misunderstanding may exist, the assured should name also the Board rate.”

No answer was made to this by the complainant concerning Board rates or other insurance rates, and this policy was in force at the time of the loss.

Again, on October 13, 1903, another policy (in force at the time of the fire), renewing the $20,000 risk, was sent to complainant by Mr. Williamson, and the letter enclosing it contained the postscript:

“N. B. Kindly notify us as soon as convenient in case the Insurance Companies’ rates have been changed from the figures shown on the policy. If all insurance is obtainable at less than Board rate, then in order that no misunderstanding may exist, the Board rate should also be named.”

It is on the failure to answer these three postscripts, although the Board rate and the rates paid by the complainant for other insurance had varied and increased after October, 1901, that the charge is made that “fraud” and “concealment” has .been practised by the complainant which avoided the policies.

We cannot so hold. Under the circumstances, we do not think that the complainant was bound to more care or frankness in laying the situation before the manager of the Underwriters, or before their co-subscribers, than it would have been had the “Underwriters” been a regular and independent insurance company in the same situation.

The original contract justified the defendant in error in assuming that the ordinary rule adopted for determining the premiums was not an invariable one, but gave way in special cases to other considerations. The postscripts to the various k iters, in view of there being no change in the risk, may have well seemed perfunctory only. At all events, when the implied inquiry in the postscript to the letter of October 13, 1902, was not in default of an answer pressed, and the policy enclosed in the letter was not cancelled, but continued, such a view on the part of complainant would not be unjustifiable. As pointed out by the Appellate Court in the Fourth District in Farmers Mutual Fire & Lightning Ins. Co. v. Lecroy, 91 Ill. App. 41, and many other cases, and so far as we Imow universally declared by text writers on insurance, a failure to answer a question clearly and unambiguously, or to answer at all in connection with taking a policy, is not sufficient to avoid the policy, for the insurer has the right to insist upon an unambiguous answer and to refuse or to cancel the policy if such an answer is not given. In the case at bar, moreover, we cannot see why it was not within the power of the insurers, before the loss, to have investigated and ascertained for themselves the facts. It seems rather late after the fire to press for answers which, if they were deemed material and controlling, should have been required before.

The third ground of defense is thus stated by the plaintiffs in error: “The appellee’s action in settling with and releasing and forever discharging the wrongdoer and principal debtor, The Topeka Water Company and its receiver, J. W. O’Neill, thereby not only released the surety, the appellant association, from liability upon the said policies of insurance, but for a small consideration frittered away appellant’s rights to be subrogated to the appellee’s right of recovery against the said wrongdoer and principal debtor, The Topeka Water Company, and its receiver.”

The contention, in other words, is, that the insured had a right of recovery for the damage occasioned by the fire against a person whose alleged misconduct or neglect caused it, that this placed the insurance company in the position of a surety for the wrongdoer, The Topeka Water Company, especially as the policies contained this clause: “If the attorney” (i e. the manager) “shall claim that the fire was caused by the act or neglect of any person or corporation, private or municipal, the attorney shall, on payment of the loss, be subrogated to the extent of such payment to all right of recovery by the insured for the loss resulting therefrom, and such right shall be assigned to the attorney by the insured on receiving payment.”

The Topeka Water Company being thus the principal and the Merchants’ Underwriters the surety, the complainant, it is said, without the authority or consent of the surety, released the principal on the payment of a comparatively small sum, and in consequence by operation of law released the principal.

This was an affirmative defense, the burden of proving which was upon the defendants. They must prove first that the claim against the third party, which would place the insurers in the position of sureties, existed, and, secondly, that the complainant, without consent of the sureties, released that claim. In our opinion they did neither, and this relieves us of the necessity of considering the other reasons urged by the complainant against this third contention of the defendants.

The fact that the complainant, under the encouragement of the insurance companies brought a suit against the Topeka Water Company for the damage suffered by the fire does not prove that the claim existed; nor does the fact that the receiver of the Topeka Water Company bought his peace for a payment of a comparatively small sum. If, as applied to the circumstances of this case, the opposite doctrine is properly to be gathered from cases cited from other jurisdictions by plaintiffs in error, which, for reasons we have not space or time to set forth here, we doubt, we must decline to follow them. In this case we think the evidence bearing on the actual existence of the claim was properly admitted, and we think the preponderance of evidence was against the liability of the Water Company. But further insistence or discussion on this point would be useless, for we have no doubt whatever on the other necessary branch of this defense. The proof not only, in our opinion, fails to show that the complainant released this alleged claim without the authority and consent of the plaintiffs in error, it affirmatively shows the contrary. W'e do not intend to discuss the evidence on this point at length. It is sufficient to say that we think that the counsel who as attorneys for the “insurance companies” signed the agreement of April 21, 1904, between those companies and The Parkhurst-Davis Mercantile Company, and afterwards, on January 25, 3905, signed the stipulation for the dismissal of the petition against the receiver of the Topeka Water Company, just as much represented the “insurance companies” in one case as the other, and just as much represented and were authorized to represent the Merchants Underwriters as any other of the companies that joined hands at the meeting of March 17, 1904. If the insurers pay, they will be subrogated to their due proportion of the amount which was received in settlement by those attorneys. This is all they can justly claim.

And we think, although in view of our very definite opinion on the participation of the plaintiffs in error in the litigation against the Topeka Water Company, it is unnecessary to enlarge on it, that the doctrine of Fire Insurance Co. v. Paekham, 92 Md. 484, is correct, that non-participation in such an action, if opportunity to become participants was given and refused, would not furnish ground for complaint of a settlement made in good faith and with reasonable judgment, if of the results of that settlement the insured stood ready to pay its proportionate share to the non-participants.

We have discussed all the essential points of the defense. They do not seem to us well taken. We do not 111ink there was proof which fixed $450, or any other definite sum, as due from the defendant in error to the plaintiffs in error on. the underwriting account. Its non-allowance, therefore, as a credit was not an error.

We do not think that the decree of the Superior Court was based on errors in law or failed to do justice between the parties, and it is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown

license: Public Domain

text:
    Harry C. Whitehill et al., Defendants in Error, v. Arthur J. Cooke, Plaintiff in Error.
    Gen. No. 13,693.
    1. Forcible entry and detainer—scope of remedy Toy. Like all purely statutory remedies, the action of forcible entry and detainer must be strictly limited to the cases provided for by the statute creating it.
    2. Forcible entry and detainer—when does not lie. This action does not lie in favor of those who have never had actual possession, as in this case. It does not lie in favor of the heirs at law of a deceased owner who have never had actual possession. A constructive possession is not a possession which may be “restored” by this action.
    Forcible entry and detainer. Error to the Municipal Court of Chicago; the Hon. Mancha Bruggejieyeb, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed April 6, 1908.
    Colson & Johnson, for plaintiff in error.
    Elmer D. Brothers and Charles M. Thomson, for defendants in error.
   Mr. Justice Brown

delivered the opinion of the court.

A writ of error to the Municipal Court of Chicago was sued out of this court in this case, and was made by the court a supersedeas.

The judgment of the Municipal Court, the reversal of which is asked, was one in forcible detainer, and gave to the defendants in error, who were plaintiffs in the Municipal Court, their costs and possession of certain premises in Chicago, describing them by their tract description and as “Number 3789 Sheridan Road.”

The material facts are these: One Jennie C. Coyne, a widow, before her death, the date of which is not shown in the record but is stated in the briefs to be March 2, 1906, was in possession of the before described premises and resided there. It is assumed by both parties to this litigation and stated as a fact in the briefs that she was the owner in fee simple of them. The propositions of law held by the court, as well as the propositions refused, are based also on that assumption. There is not, however, anything in the record which supports it, except the fact that Mrs. Coyne had long made her home at the house in question and controlled it. It will, however, for the purposes of our consideration of this writ of error, be considered as admitted.

At the time of the death of Mrs. Coyne one Mrs. Mrs. Meleta Coyne Coolidge, who was apparently an adopted daughter of Mrs. Coyne, and had been treated by her as a natural daughter, was living with her. She had left the city temporarily or otherwise before this suit began.

For twenty years before Mrs. Coyne’s death and at the time of her death there was a boarder in the house named Arthur J. Cooke, who is the plaintiff in error here. He continued to live there after Mrs. Coyne’s death and after the departure of Mrs. Coolidge, in what capacity or with what claim is not in our view material. There was at the trial a suggestion of a dispute concerning the actual relation of Mrs. Coolidge to Mrs. Coyne, upon which, notwithstanding our statement above as to what is apparently shown by the record, we must not be understood as passing.

Our decision rests on the relation of the plaintiffs to the property in question. They claim the possession solely as the heirs at law and next of kin of Mrs. Coyne, on the ground that the title devolved upon them at her death, another assumption or implied admission in the cause being that she died intestate.

The court held as a proposition of law the following: ‘ ‘ That a suit for forcible detainer cannot be maintained by the heirs at law of a deceased owner of certain real property against one who has been in actual possession of said premises since the death of said deceased owner, claiming to be the oioner thereof, when such heirs at law of such deceased owner have never been in actual possession of said premises;” but refused to hold that “Under the evidence in this case the plaintiffs could not maintain this suit,” and gave judgment for the plaintiffs.

The case was thus made by the trial judge to turn on the character in which the defendant was holding possession. We do not think this was a necessary or a proper test, or that it was necessary that a question of title should be thus raised to render the forcible entry and detainer or forcible detainer proceeding inapplicable and ineffective in the situation presented here.

The action of “forcible entry and detainer” or “forcible detainer” is a purely statutory remedy, given by the legislature in certain cases and to certain persons “to restore” such persons to a wrongfully withheld possession of real estate through a process more summary and speedy than the common law action of ejectment. Like all purely statutory remedies, it must be strictly limited to the cases provided for by the statute creating it.

The proposition contended for by the counsel for defendants in error in their brief, that although the statute creating the action of forcible detainer does not specifically cover a case like the present, the court should extend its operation by analogy and implication to such a case, seems to us unsound.

Sutherland on Statutory Construction, sections 392 and 393, states the correct rule, fortifying it with many citations of decided cases.

“A statutory remedy or proceeding is confined to the very case provided for, and extends to no other. It cannot be enlarged by construction nor be made available or valid except on the statutory conditions, that is, by strictly following the directions of the Act. A party seeking the benefit of such a statute must bring himself strictly not only within the spirit but its letter; he can take nothing by intendment.”

It is admitted that the defendants in error in the present case (the plaintiffs below) never at any time had actual possession of the premises to which possession they could be “restored.”

In Thompson v. Sornberger, 59 Ill. 326, speaking of the remedy by action of forcible entry and detainer, the Supreme Court said: “In the many and various discussions which this subject has undergone in this court, it has always been held that the plaintiff must show that he had actual possession of the premises upon which the forcible entry is alleged to have been made; that a mere constructive possession, such as the fee simple title to the land entered upon draius to it, is not sufficient.”

It is true that this case was decided in 1871, and the present forcible entry and detainer act was substituted in 1874 for the one before in force. But the present act is susceptible of no wider construction in this regard than the former one. There is no change which affects the questions here involved, and since the passage of the revising act of 1874 (chapter 57 of the Revised Statutes), the case of Thompson v. Sornberger has been cited by the Supreme Court as authority for the same proposition (Chicago & St. Louis R. R. Co. v. Wiggins Ferry Co., 82 Ill. 230, 232), and by the Appellate Court of this district' and of the Fourth District respectively in R. Co., v. Cheevers, 44 Ill. App. 119, and Rockhold v. Doering, 122 Ill. App. 194.

The defendants in error urge that because the forcible detainer act has been construed to allow, by the fourth clause of its second section, the action to the assignees or to the heirs of the lessor in the case of a tenant holding’ over, therefore it must by analogy be construed to allow it in this case to the heirs of the deceased owner. But they cite the express statute (section 14 of the Landlord and Tenant Act) which explicitly gives to such assignees and heirs as against tenants under a lease the same remedies by entry, action, or otherwise, as the grantor or lessor might have had if he had not conveyed or died.

Our Supreme Court does not construe the statute according to the contention of the defendants in error in cases like the present. Thompson v. Sornberger, supra; Thomasson v. Wilson, 146 Ill. 384.

It is only a “possessio pedis” which has been interfered with, which may be “restored” by this summary statutory proceeding under the first and second clauses of section 2 of the act.

The judgment of the Municipal Court must be reversed and the defendants in error relegated to their common law rights and remedies.

Reversed.


text:
    Morris J. Neiderman, Defendant in Error, v. The People's Gas Light & Coke Company, Plaintiff in Error.
    Gen. No. 13,701.
    1. Personal injuries—when doctrine of res ipsa loquitur does not apply. Held, under the evidence in this case, that the doctrine of res ipsa loquifair was inapplicable.
    Action in case. Error to the Municipal Court of Chicago; the Hon. Thomas B. Lantry, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed April 6, 1908.
    B. M. Shaffner, for defendant in error.
    Sears, Meagher & Whitney, for plaintiff in error; Frederick A. Freeark, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

In this case the Municipal Court gave judgment in favor of the defendant in error, plaintiff in that court, against the plaintiff in error, defendant in that court, for $58 and costs, on the following state of facts:

The plaintiff, Morris J. Neiderman, was a furniture dealer at Nos. 612 and 1123 Milwaukee avenue in Chicago. On the evening of January 19, 1907, one of his drivers had some furniture to deliver on the east side of Cleaver street, and drove south on the west side of that street between Blackhawk and Bradley streets, and attempted to cross over to the east side near the proposed point of delivery. His horse suddenly sank into the ground up to his belly. To get him out of his predicament it became necessary to cut portions of the harness. Testimony was introduced to the effect that this injury to the harness and the damage which the horse suffered amounted to between $58 and $70. The judge in the Municipal Court to whom the cause was submitted, without a jury, entered judgment for the lesser sum.

The defendant was connected with the accident in this way. For the purpose of inspection and renovation of its gas mains and service pipes preparatory to the repaving of the street, the People’s Gas Light & Coke Company, the defendant, had opened a trench on Cleaver street on January 18, 1907, the day before the accident. They liad a permit from the city of Chicago to do the work. The permit provided that “the opening was to be rammed while being filled.” It was also provided in it that “in issuing the permit it is expressly agreed and understood that in making opening under this permit no boards or planks upon which blocks rest shall be cut out or broken. That such boards shall be taken up for their entire length and replaced as originally laid.”

The evidence is that there was at the place of the accident no “boards” or “cedar blocks;” there had been a block pavement on the street, but it was all worn out. The street was therefore not in good condition before the trench was opened. The earth, however, was firm enough, the street foreman for the defendant says, for light wagons but not for heavy traffic. After the pipes—main and service—were inspected and repaired, the trench was on the same day filled up for a part of its length. A section of about forty feet was left open, and this was roped around and a red light placed at each end. The remainder of the trench, which was from three to six feet deep, the defendant filled in late in the afternoon of the eighteenth. It was where this filling had been done that the accident happened. The foreman testified they got all the earth they took out of the trench into it again, and that they did it by putting back the earth and flushing it with water, using a hose connected with the city hydrant for that purpose, instead of tamping or pounding by other means. The watchman for the company swore the trench was filled in the “general way” that such filling was “always done”.

There was no proof of any city regulation by ordinance as to the exact method which should be pursued. The term “rammed” is indeed used in the permit, but there was no proof whether the putting back the earth —if it was all restored—could not be done as well or better by water tamping as by any other. The sworn answer of defendant to a filed interrogatory of the plaintiff was that “the trench was flooded at the time the dirt was thrown back into the opening in order to get the dirt all back and give a solid foundation.” The weather for twenty-four hours after the filling in was very bad. It rained very hard all the time, so that the street where the filling had taken place was a flood of water, and the part of the trench left open could not be filled that day in consequence.

The theory of the plaintiff, and that on which the trial judge must have proceeded, was that “res ipsa loquitu7\” The fact of the horse’s sudden disappearance was proof, counsel say, of the defendant’s gross negligence in the filling of the trench. We do not think this can be so considered. It certainly was proof that the street was not in a reasonably safe condition when the accident happened, but we think that to hold the defendant liable there was required affirmative proof of its negligence in its manner of doing the work. Its liability does not depend, as the city’s might, on a duty to use reasonable care to keep a street in good condition.

The proof of this negligence in doing the work being wanting, as we think, in the absence of evidence that any reasonable manner of putting back the earth in the trench would have been a better way and made the street under all the circumstances more safe, we must reverse the judgment of the Municipal Court.

Reversed.


text:
    Wells Bros. Company, Plaintiff in Error, v. Edward Manion, Defendant in Error.
    Gen. No, 13,711.
    1. Master and servant—shifting conditions as affecting duty to furnish safe place to worlc. Mere transitory and temporary conditions interfering with the safety of the place to work, in buildings in process of erection or demolition, do not necessarily render the master liable for injuries resulting therefrom to the workman.
    2. Master and servant—what not necessarily failure to furnish safe place to worlc. When a building is in process of construction, an employing owner or contractor, under the general doctrine of his obligation to furnish his employes a safe place to work, is not liable for injuries to one of them caused by his stepping, in broad daylight, on a nail or spike protruding from material, either discarded or to be used, which is lying about.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Thomas B. Lantry, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed April 6, 1908.

      F. J. Canty, for plaintiff in error; E. J. Folonie and G-eorge Peirshing, of conhsel.
    Egbert L. Stephens, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

The judgment of the Municipal Court which it is sought to reverse by the writ of error here involved, is for $200. It was rendered by the court sitting without a jury against the plaintiff in error, the Wells Bros. Company, in favor of the defendant in error, Manion, for a personal injury suffered by him while in the employ of the said company.

The Wells Bros. Company was the contractor for the construction of the Field Building at the corner of Washington and State streets in Chicago. Manion was a laborer in their employ. His work was in the .second basement, two floors below the street level. He and his fellow workmen used a double ladder as a means of getting from the first basement to the first floor when leaving their work. November 15, 1906, at about four o’clock in the afternoon he was quitting work and came up this double ladder.

The argument of the defendant in error thus states what then happened: “The top of the ladder extended four or five feet above the level of the first floor, and the floor was not laid in front of the ladder, so that plaintiff could not walk straight ahead the way he was facing; to the right of the top of this stairway was a pile of rubbish two or three feet high, about three or four wheelbarrows full, consisting of short pieces of lumber, sticks and tiles; so that the only way plaintiff had of getting out off the ladder and on the first floor was to walk over this pile of rubbish. In so doing he stepped on a nail or spike in a piece of board or sleeper—a part of this pile of rubbish—and the nail went through plaintiff’s shoe and into the ball of his left foot.”

We do not think the facts set forth in this statement made on behalf of the plaintiff in this case show any liability on the part of the defendant.

It cannot be the law that when the building is in process of construction an employing owner or contractor, under the general doctrine of his obligation to furnish his employes a safe place to work, is liable for injuries to one of them caused by his stepping in broad daylight on a nail or spike protruding from material, either discarded or to be used, which is lying about.

Counsel for defendant in error say that “the rule, as to wrecking a building” is that while the master is doing it “he is free from all obligation to use reasonable care to furnish a servant safe surroundings in which to work,” but that this is not the rule as to erecting a building.

We do not think that there is a rule to be so broadly stated in either case. There is, however, applicable to both cases, a statement of the law frequently announced by courts in slightly varying forms—that mere transitory and temporary conditions necessarily interfering with the safety of “the place to work” in buildings, either in process of erection or demolition, do not necessarily render the master liable for injuries resulting therefrom to the workmen.

The Court of Appeals of Texas expresses it very well in Armour & Co. v. Dumas, 95 S. W. R. 710, where the facts were much like the case at bar: “It is insisted,” it says, “that the duty of exercising care to furnish a reasonably safe place to work resting upon appellant was absolute. * * *. But to this general rule there is the well known exception that the master is not liable where the danger to which the employe is exposed is merely a transitory one, due to no fault or plan of construction, but is one where the work is of such a character that as it progresses the environment of the servant must necessarily undergo frequent changes, and the injury is traceable to one of these transitory changes. This exception finds its illustration for the most part in cases involving the construction of works.”

The case cited by the Texas court from the Supreme court of the United States supports this statement. Armour v. Hahn, 111 U. S. 313.

This court has announced the same doctrine several times. Richardson v. Anglo-American Provision Co., 72 Ill. App. 77; Merchant v. Mickelson, 101 Ill. App. 401; Western Co. v. O’Donnell, 101 Ill. App. 492; F. J. McCain Co. v. Kingsley, 126 Ill. App. 165; Falkeneau v. Ginley, 131 Ill. App. 399.

We do not share the doubt expressed by the learned judge who delivered the opinion in Hansell v. Clark, 115 Ill. App. 320, as to whether the doctrine of the Merchant and Bichardson cases had not been overruled. The Hansell case was, however, plainly distinguishable from them.

The reasoning which leads to the conclusion that the danger in such a case is a risk of the employment assumed by the employe, is as strong in case of construction as of demolition.

The present case seems to us to be one for its application.

The judgment of the Municipal Court is therefore reversed.

Reversed.


text:
    Theresa Feld, Defendant in Error, v. Samuel T. A. Loftis and Joseph S. Loftis, Plaintiffs in Error.
    Gen. No. 13,722.
    1. Pleading—when plea nul tiel record inappropriate. The plea of nul tiel record is technically inappropriate to question the existence o£ a justice court record. It is only where a justice court is one of record that such a plea may properly he employed.
    2. Pleading—effect of failure to reply. The failure to reply to a plea by traverse or avoidance admits the material facts well pleaded.

      3. Pleading—what general issue puts in issue in action for false arrest. In action for false imprisonment, a plea of the general issue not only puts in issue the fact of the imprisonment alleged but also the participation of the defendant therein.

      í. Peactioe—how issue formed upon plea nul tiel record determined. An issue raised by a plea nul tiel record is to be determined by the court and not by the jury.
    5. Res judicata—of what habeas corpus proceeding not. The illegality of an imprisonment does not become res judicata by virtue of a judgment in a habeas corpus proceeding brought to test the illegality of such imprisonment.
    6. Judicial notice—of what talcen. Judicial notice will be taken as to who is the jail-keeper of the Cook county jail.
    7. False impbisonment—who not liable in action for. A magistrate who issues and an officer who obeys a void process are liable for the imprisonment made thereon, hut the plaintiff or complaining witness in the action of prosecution out of which such process issued is not liable in an action for false imprisonment.
    8. Replevin—lohen transcript of justice shoios jurisdiction. The transcript of a justice is sufficient to show jurisdiction of an action of replevin if it appears therefrom that the jurisdictional affidavit was filed. Such affidavit need not be set forth in full.
    9. Justice of the peace—what not essential to valid transcript. A seal is not essential to a valid transcript of a justice.
    10. De facto officials—when proof of, sufficient. In an action for false arrest a legal justification may be predicated upon proof that the officer making the arrest was a de facto officer.
    Action in trespass. Error to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed April 6, 1908.
    Statement by tie Court. This is a writ of error sued out to reverse a judgment of the Circuit Court of Cook County for $1,500 in favor of the defendant in error, Theresa Feld, who was plaintiff below, against Samuel T. A. Loftis and Joseph S. Loftis, plaintiffs in error, who were defendants below.
    The suit was begun August 23, 1900, and in September of that year a declaration was filed in three counts. Its allegations were directed against all the defendants originally named, who were The Loftis Manufacturing Company—S. T. A. Loftis, J. S. Loftis and A. A. Loftis. During the progress of the case a discontimiance was taken against The Loftis Manufacturing’ Company, and the death of A. A. Loftis having been suggested, the suit was ordered abated as to him.
    The first count of the declaration charged that the defendants on June 1, 1900, “with force and arms caused the plaintiff to be seized and then and there imprisoned and detained in prison without any reasonable or probable cause whatsoever,” etc.
    The second count states additional matter of inducement, but its gist is that the defendants “caused the body of the plaintiff then and there to be taken and seized and delivered to the keeper of the jail in Cook county, Illinois, and to be therein then and there imprisoned, detained and restrained of her liberty without any reasonable or probable cause whatsoever, for the space of twenty-four hours,” etc.
    The third count also contains additional matter of inducement and aggravation, but the essential charge therein contained is, that the defendants “caused the body of the plaintiff to be seized, taken and delivered to the keeper of the common jail in Cook county, Illinois, and to be therein imprisoned and restrained of her liberty without any reasonable or probable cause therefor.”
    Pleas were filed to this declaration by Joseph S. Loftis and S. T. A. Loftis separately. Each of them pleaded not guilty, and to these pleas a similiter was filed by the plaintiff, which made in each case the first issue to be tried.
    Joseph S. Loftis, who was the first defendant served, filed also, on July 19, 1902, a second plea, which set up that at the time of the alleged imprisonment of the plaintiff, Joseph S. Loftis and S. T. A. Loftis made such oath before one Holt, a justice of the peace of Cook county, Illinois, having jurisdiction of the matter, that on February 28, 1900, a writ of replevin issued from said justice for a bicycle said to be in the possession of the plaintiff, which writ was given to a constable, who returned the same served on the defendant in error, Mrs. Feld, but with the certificate that he was unable to find the chattel to be replevined; that the said replevin suit was called for hearing before said justice of the peace, “the plaintiffs having declared in trover;” that at said trial a jury of six men was summoned and returned a verdict finding the right of property in the plaintiffs, and “that the defendant wrongfully and fraudulently converted the said goods and property of the plaintiffs to her own use, to the damage of the plaintiffs in the sum of $27.50;” that afterward an execution was issued by said Holt, the justice aforesaid, “which execution commanded any constable in said Cook county that out of the goods and chattels of the defendant, Mrs. Joseph Z. Feld, he make the sum of $27.50 judgment and $13 costs, and for want of said goods and chattels, said constable was ordered to take the body of the said Mrs. Joseph Z. Feld and her convey and deliver unto the keeper of the jail of the said county,” who was thereby commanded to receive and keep the said Mrs. Joseph Z. Feld in safe custody until said sum and all legal expenses be satisfied, or until she be discharged by due course of law; that the said execution was delivered to one E. E. Schmedling, a legally elected constable in and for the county of Cook, on the twenty-seventh day of April, 1900, and that on the first day of June, 1900, the said constable made the following return upon the said writ: “By virtue of the within writ I have made diligent search for the goods and chattels of the within named defendant whereupon to levy on same, and .being unable to find any, did upon this'first day of June, 1900, take the body of the within named defendant, Mrs. Joseph Z. Feld, and delivered her to the keeper of the said jail of the said Cook county, as within I am commanded.
    E. S. Schmedling, Constable.”
    We have given the substance of this plea in detail because it was the first special plea filed, and because although it was lacking in artificiality and was supplemented by the defendant, Joseph S. Loftis, by a third plea filed November 21, 1903, setting out the same facts and also the judgment on the verdict, and alleging that the arrest of said plaintiff by said constable under said execution, and the imprisonment and detention of said plaintiff under said execution by the keeper of the jail of said Cook county was “the same arrest, imprisonment, wrongs, injuries and detention complained of by said plaintiff in the several counts of her said declaration” (which said last plea was also, in effect, duplicated by the other defendant, S. T. A. Loftis, December 22, 1903), it sufficiently shows the defense on which the defendants rely in this action. To the pleas of Joseph S. Loftis, the plaintiff, Theresa Feld filed replications November 30, 1902. These consisted of a similiter to the general issue as before indicated, a replication of “nul tiel record” to each of the other pleas, and also a replication “ de injuria” to the third plea, admitting that “the plaintiff was arrested and restrained of her liberty and imprisoned by virtue of the execution in that plea mentioned,” but setting-up that she was discharged from custody by the Circuit Court of Cook county on a certain habeas corpus proceeding in which the petition was filed by Joseph Z. Feld as relator, and alleged the unlawful imprisonment of Mrs. Feld by the sheriff and ex-officio keeper of the jail of Cook county, and that the justice exceeded his powers and jurisdiction in issuing the writ under which she was held. The replication further alleges that upon her oath in writing the plaintiff filed in said habeas corpus proceedings a statement which went into the merits of the controversy between Loftis Bros, and the plaintiff, and then proceeded: “The said Loftis Bros., before one Bobert N. Holt, by false statements under oath and by false pretenses, falsely and fraudulently claiming and pretending- that plaintiff was indebted to them in the sum of $27.50,” obtained a judgment falsely and fraudulently in tort, when in fact no tort had ever been committed or was proven within the jurisdiction of said justice of the peace, and that said justice of the peace, without any proper cause supported by affidavit, upon the fraudulent procurement of said Loftis Bros., issued the writ in the return set forth for the arrest and imprisonment of plaintiff, and that plaintiff was seized and imprisoned by virtue of said writ; that in rendering the judgment and issuing said writ said justice of the peace exceeded the limits of his jurisdiction as to matter, sum or person, and said writ was issued in a case and under circumstances where the law does not allow process for arrest and imprisonment to issue. The replication then proceeds: “And the plaintiff avers that the said Loftis Brothers were duly notified of the issue of said writ of habeas corpus, and appeared before said Circuit Court on, to wit, June 2, 1900, and June 8, 1900, by Z. B. Wagner, and opposed the proceedings on said habeas corpus and resisted the discharge of the plaintiff therein. And plaintiff avers that such proceedings were had in such Circuit Court that on, to wit, the eighth day of June, 1900, by the consideration and judgment of said Circuit Court it was adjudged, upon the hearing of the matters and things alleged in said petition and the writ and return thereto, as aforesaid, and the allegations filed under oath by the plaintiff, and the Circuit Court found, that the plaintiff was unlawfully and wrongfully imprisoned and restrained of her liberty, and adjudged and ordered that the plaintiff be discharged and released from such imprisonment and detention pursuant to the statute in such case made and provided. And plaintiff avers that the said judgment of said Circuit Court in said habeas corpus proceeding and the record thereof still remains in said court in full force and effect and unreversed, wherefore and by reason of the premises, the plaintiff says that the said arrest and imprisonment of the plaintiff was wrongful and unlawful, and the defendant of his own wrong caused the arrest of the plaintiff aforesaid by virtue of the writ in the said plea mentioned unlawfully,” etc.
    To these special replications the defendant Joseph S. Loftis interposed on December 8, 1903, general and special demurrers. The special cause of demurrer to the replication to the second plea and to the first replication to the third plea (being replications of mil tiel record) was that the said Robert' N. Holt, mentioned in said pleas and replications, was a justice of the peace and held court as such under the provisions of the statutes of the State of Illinois, and that the said court so held by said justice of the peace was not a court of record, so that technically there could be no record of any judgment or proceedings before the said justice of the peace or of the issuing of the execution by said justice of the peace as set forth in said plea. The special causes of demurrer to the second replication to the third plea (the replication de injuria) were:
    First, that said replication admits that said plaintiff was restrained of her liberty and imprisoned by virtue of the execution in said third plea mentioned, and then sets up immaterial matter concerning a habeas corpus proceeding.
    Second, that in the replication the plaintiff only mentions and describes Loftis Bros., and that there is no allegation connecting the defendant Joseph S. Loftis with Loftis Bros.
    Third, that it is impossible to tell whether certain allegations in the replication are allegations of fact or allegations that certain statements had been made by the plaintiff in the habeas corpus proceedings.
    Fourth, that there are no facts set forth in the replication showing that the arrest and imprisonment were wrongful or unlawful, or that defendant of his own wrong caused the arrest of said plaintiff by virtue of said writ of execution.
    On December 24, 1903, an order was, after argument, entered, sustaining the demurrers of Joseph S. Loftis to all the special replications filed by the plaintiff November 30, 1902, to the pleas of the said Joseph S. Loftis, whereupon the plaintiff elected to stand by her replications.
    On December 22, 1903, Samuel T. A. Loftis filed two pleas to the plaintiff’s declaration. The first was the general issue of not guilty, before described. The second was, in effect, the same plea as that filed by Joseph S. Loftis on November 21, 1903.
    October 24, 1906, the plaintiff was given leave to file instanter “replications to defendant’s plea filed herein.” Thereupon, on the same day, the plaintiff refiled to the additional or third plea only of Joseph S. Loftis (being the one filed on November 21, 1903) the replications which she had filed on November 30, 1902, and which, on their being successfully demurred to, she had elected to stand by. These later replications were identical in every particular with the former ones, except that in the second replication the additional allegation was made that “the defendant Joseph S. Loftis at the time in the plea mentioned was a member of the firm of Loftis Bros.”
    At the same time the plaintiff filed identical replications (the name of defendant alone being changed) to the second plea of S. T. A. Loftis, and a similiter to his plea of the general issue.
    To the special replications thus filed on October 24, 1906, neither of the defendants ever demurred or rejoined, nor was there any rule ever applied for to compel them to do so.
    On January 23, 24 and 25, 1907, however, the cause was tried before a jury. At the close of the plaintiff’s evidence a motion was made to take the cause from the jury, and the same motion was made at the close of all the evidence. These motions were denied, and the cause submitted to the jury under instructions from the court as to the law. The jury returned a verdict of $1,500, on which the judgment was based which is here appealed from; a motion for a new trial and a motion in arrest of judgment having been overruled.

      The reasons put forward in the motion for a new trial are repeated in the assignments of error in this court, and include allegations that the verdict and judgment were against the law and the weight of the evidence; that the trial judge erred in refusing the peremptory instruction asked for the defendants; that he erred in rulings on the admission and exclusion of evidence, in giving instructions asked by the plaintiff, in refusing instructions asked by defendants, and in giving of his own motion and volition certain instructions over the objections and exceptions of the plaintiffs in error.
    Moran, Mayer, Meyer & Austrian and E. E. Berlet, for plaintiffs in error.
    James R. Ward, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

The plaintiffs in error in this case, in speaking of the course of the pleadings, say that “By going to trial without first procuring a rule on plaintiffs in error” (the defendants) “to file rejoinders,, defendant in error” (the plaintiff) “waived any right to complain of the lack of rejoinders.” We do not find in the argument of the defendant in error any complaint of “the lack of rejoinders,” but they do say, “Without traversing these replications, the plaintiffs in error treated them as traversed, the case at issue, and proceeded on January 23, 1907, to try the issues thus joined by a jury.”

We doubt the accuracy of each and both of these propositions. As we understand the rules of common law pleading, if the allegations of fact, or any of them, set up in a pleading are not traversed, those not so traversed are to be considered as admitted, and the pleading may be read to the jury to show them. Andrew’s Stephen’s Pleading (2d edition) page 323, note; Lettick v. Honnold, 63 Ill. 335; 1 Allen (83Mass.) 560; Holmes v. Jones, 121 N. Y. 461. Of course, however, it is only the facts which are thus admitted, not conclusions of law or mixed conclusions of law and fact. And as Mr. Justice Breese points out, in Lettick v. Honnold, 63 Ill. 335, if the facts thus admitted should have made under the law no difference to the finding or the judgment, it may be immaterial what disposition of, or ruling on, the pleading was made.

We think this was the ease as to the plaintiff’s replications in this case. • The replications of nul tiel record filed October 24, 1906, were identical with those filed November 30,1902, which were successfully and properly demurred to; for as a justice court is not a court of record, a technical plea of nul tiel record cannot, we think, be effectively used to question the existence in the hands of an officer of an execution regular in form, issued by the justice in a suit in which he has apparent jurisdiction. The existence of such an execution can of course be questioned, but not by a plea of nul tiel record of it and of the judgment on which it issued in said justice court.

It is only where justice courts are courts of record, which they are not in Illinois, that a plea of nul tiel record is proper .to question their judgments and process. Encyclopedia of Pleading and Practice, Vol. 11 (Pleas at Law-Records) page 1158. Compare on this subject Adair v. Rogers, Wright, Ohio, 428, and Silver Lake Bank v. Hardin, Chancery, Ohio, 430; Collins v. Modisett, 1 Blackford, 60; Cole v. Driskell, 1 Blackford, 16, and notes.

But even were it not so, a plea of nul tiel record is not for the jury, but to be passed on by the court. Under the circumstances of this case, the replications of nul tiel record therefore may be and would be considered as demurred to ore tenus, and not admitted when the parties went to trial.

By the refusal of the court to allow the introduction in evidence of the transcript of the proceedings had before the justice and the execution under which the defendant in error was imprisoned except in mitigation of damages, it may be considered to have indicated a decision in favor of the plaintiff on these replications. If so, we think the court erred. For reasons hereinafter stated, we think that this execution furnished a complete bar to this action against the defendants for false imprisonment, and should have been admitted without limitation as to its effect.

Passing to the replications de injuria, which were not traversed, it is hardly worth while to note that the record does not bear out the statement of the defendant in error’s brief that on October 24,1906, the plaintiff filed “two special replications to the special pleas of Joseph S. Loftis,” inasmuch as the replications are specifically confined by their terms to the third plea of Joseph S. Loftis, which was filed on November 21, 1903. As a demurrer had been sustained to the replications before filed to the second plea of Joseph S. Loftis filed July 19, 1902, this left that second plea, the substance of which is set out in the statement hereto prefixed, untraversed or avoided and therefore admitted.

But this is practically immaterial in our view, for the essential part of that plea, and of all the other special pleas of either defendant, is, we think, admitted in these words in each of the replications de injuria on file:

“It is true that the plaintiff was arrested and restrained of her liberty and imprisoned by virtue' of the execution in the plea mentioned.”

The rest of the matter in these replications, whether it be construed as setting up only the habeas corpus proceedings and their result, or as including also direct allegations as to the merits of the controversy between the plaintiff and the defendants which led to said execution and the judgment on which it was issued, is immaterial. The court refused, and rightly refused, to allow any evidence to be introduced of the habeas corpus proceedings, and whether or not this ruling was, as counsel argue, equivalent to striking the replications from the files or not does not matter. Everything contained in the replications may be assumed to be true, and the situation would not be in any respect altered. If all other considerations should be left out of account, and it also should be assumed that the discharge in the habeas corpus proceedings must have been based on the judgment of the Circuit Court that there was no jurisdiction in the justice of the peace to issue the execution on which the plaintiff was imprisoned (an assumption that we are far from actually making except for the sake of illustration) and also assumed that if the justice was without jurisdiction, the defendants must be considered, under the evidence, as the principals, whose agents were guilty of an unlawful arrest (another assumption against our actual opinion), yet even then we should not hold these habeas corpus proceedings conclusive in this case. If not conclusive, they must be immaterial as merely collateral and incidental. That they could not be conclusive we think is shown by the very fact that as there is no appeal from the decision of the court in habeas corpus proceedings, a review of the same questions of law or fact in the Appellate Courts in a direct proceeding, by appeal or writ of error, in the original suit in which the arrest occurred, or in one like this present, directly springing from it, would be foreclosed to the prosecuting plaintiff. But this is a right that cannot be denied him under our laws.

The doctrine of the case of Castor v. Bates, 127 Mich. 285, we cannot assent to as applicable to the situation in this state. That the habeas corpus proceedings were immaterial in a like case has already been decided by this court. Lowry v. Hately, 30 Ill. App. 297. This view, however, by no means conflicts with the proposition that a judgment of release in habeas corpus proceedings prevents another arrest and imprisonment for the same cause.

The disposition of these replications leaves ns to a consideration of the issues raised by the pleas of not guilty, and the pleas of the defendants, of which, as we have said, we deem the essential parts expressly admitted by the plaintiff’s replications, and which at all events, in our opinion, were sufficiently proved. The result of that consideration is that the peremptory instruction for the defendants should have been given by the court after all the evidence was heard.

The plaintiff says that the plea of the defendants of not guilty puts the mere fact of the imprisonment of the plaintiff in issue. It does more than that.

Whether or not under such a plea alone, the illegality of the imprisonment, if such imprisonment is admitted or proven, can be denied, there is no doubt that the participation or intervention of the defendant in the imprisonment itself can be controverted.

This suit is purely one for false imprisonment. It is not a suit for malicious prosecution. If it were, very different rules of law would govern it. It was, however, conceded by counsel for the plaintiff, at the trial below, in his requests for instructions, and it is conceded by his argument here, that the suit is for false imprisonment—one that must have been brought in trespass vi et armis had not the statutes abolished the distinction between trespass and trespass on the case. Keeping this in mind in considering the pleas of not guilty filed here, it must first strike us that the proof of the arrest and imprisonment does not make the defendants the actual trespassers, if there were a trespass, but a certain Edward E. Schmedling, acting as a constable, and Ernest Magerstadt as sheriff and keeper of the jail of Cook county. It was, according to the evidence, Schmedling who made the arrest and took the plaintiff to the jail, and Magerstadt as sheriff (and, as we take judicial notice, jail keeper) who held her until released by the order of the Circuit Court.

The plaintiff argues, however, that the action for false imprisonment lies “not only against the party who actually imprisoned the plaintiff, but also against any person who caused the plaintiff to be imprisoned, or aided, abetted or incited others to do it.”

Undoubtedly, the rule “qui facit per alium facit per se” prevails in this department of the law as in every other; and it is not only the person actually laying hands oh another person in the arrest or turning the lock in a cell door in the imprisonment who can be held liable, but as well one who controls, commands, assists, or in such a direct sense abets, that other. In that sense the position of the plaintiff’s counsel is sound and is sustained by the authorities he cites. But a construction of this doctrine which would practically make it abolish the difference between liability for malicious prosecution and liability for an imprisonment which was the result of process finally issuing in such prosecution, is not sound nor supported by any authority to which we have been cited which we deem well considered. On the contrary, our Supreme Court in Outlaw v. Davis, 27 Ill. 467, expressly repudiates this doctrine, and declares it intolerable and impossible. The only manner in which either of the defendants was connected by the evidence with the arrest and imprisonment was by the admitted allegations: First, that as co-partners they brought" a replevin suit before the justice, which resulted in a verdict of a jury that Mrs. Feld had fraudulently converted their property, a consequent judgment of $27.50 against her by the justice, and a capias ad satisfaciendum issued to Sehmedling, the constable; and, second, that after the constable had arrested Mrs. Feld he telephoned to S. T. A. Loftis to come to the jail and pay the board of the prisoner under the statute, and that S. T. A. Loftis appeared there and paid $3.50 to the representative of the sheriff, and by the contested allegation that when this board money was paid, the said S. T. A. Loftis said, “We will make an example of her.”

But these things did not make the defendants principals or participants in the arrest. It was the process issued by the justice, not commands of the defendants, that Schmedling and the sheriff and jail keeper were obeying. They would have very little heeded any directions of the Loftis Bros, in the absence of that process. If the process had been void, the magistrate who issued it and the constable and sheriff who obeyed it, might have been'liable in trespass vi et armis, or in case, for false imprisonment; but as the Supreme Court in Outlaw v. Davis (supra) points out, not the plaintiffs and complaining witnesses in the suit in which it issued. See, also, Wilmerton v. Sample, 42 Ill. App. 254.

For these reasons we think that the jury should have been instructed at the close of the evidence to have found for the defendants on the issues formed on the pleas of not guilty.

But if we are wrong in this, and the defendants in this suit are liable in this action, if the magistrate, constable or jailer, or any of them, would have been in a like action, we think also that the pleas of justification filed, and which would in that case have been necessary, are good.

The contention of the defendant in error to the contrary is based on the view that the process described in these pleas was void. We see no reason for holding it so. The transcript of the justice’s docket, introduced in evidence, says that on February 28, 1900, an affidavit was filed and a writ of replevin was issued. The Branch Appellate Court very properly said in Subim v. Isadore, 88 Ill. App. 96, that “it is proper to indulge in inferences in aid of the justice’s transcript in respect of the regularity and legality of the steps taken by the justice as thereon shown,” and it has been often held by the courts of Illinois, as it was in that case, that technical accuracy in transcripts by justices of the peace cannot be required.

It was not necessary to show the affidavit in full in the transcript. It is evident that what Judge Cartwright, when in the Appellate Court of the Second District, said in Wilmerton v. Semple, 42 Ill. App. 254, may be said of this writ of replevin: “It was clearly shown that it was issued on some sort of affidavit adjudged by the justice sufficient to authorize the issuance of the writ. * * * He had general jurisdiction over the subject-matter and the most that can be said is that he erred in his judgment.”

We deem none of the objections made to the introduction in evidence of the transcript of the justice well taken.

The objection of the want of the seal of the justice, made for the first time here, has been held by this court futile even when made in time. Had it been specifically made below, it could have been met. Baker v. Baker, 159 Ill. 394; Foster v. People, 121 Ill. App. 167; Kitson v. Farwell, 30 Ill. App. 341.

It was unnecessary for defendants to show more of Schmedling’s official character than that he was a de facto officer. Schlenker v. Risley, 3 Scammon 483; Schermerhorn v. Mitchell, 15 Ill. App. 418.

We are therefore of the opinion that even had the peremptory instruction asked for been justified only if the pleas in justification were proven, the defendants were entitled to it.

The judgment of the Circuit Court is therefore reversed.

Reversed.


author: Mr. Presiding Justice Baker

text:
    Theodore G. Lange, Plaintiff in Error, v. Alfred L. Cole, Defendant in Error.
    Gen. No. 13,728.
    1. Municipal Coukt Act—when certificate of statement of facts sufficient. Held, that the certificate appended to the statement of facts made pursuant to clause 6 of section 23 of the Municipal Court Act was sufficient.

      2. Chattel mortgages—xohen void. A chattel mortgage becomes void as to third parties where the mortgagee takes possession of the mortgaged property for breach but subsequently re-delivers possession to the mortgagor.
    Fbeeman, J., dissenting.
    Replevin. Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed and judgment here.
    Opinion filed April 17, 1908.
    Asa I. Reynolds, for plaintiff in error.
    Pierson & Pease and Albert H. Fry, for defendant in error.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

Plaintiff in error brought in the Municipal Court replevin against the defendant in error for an automobile. The machine was taken on the writ, and a trial of the cause, by the court without a jury, resulted in a judgment for the defendant, to reverse which this writ of error is prosecuted.

Clause 6 of section 23 of the Municipal Court Act provides that it shall be the duty of the judge who enters judgment, “to sign and place on file * * * a correct statement of the facts appearing upon the trial and of all questions of law involved in such case, * * * which statement with a certified copy of the transcript of the judgment,” * * * shall be certified to this court, “as the record to be considered upon the review of such judgment.” The transcript in this ease contains what purports to be a “statement of facts” and of “Questions of Law involved,” with the following certificate signed by the trial judge: “I hereby certify that the foregoing is a correct statement of the facts appearing upon the trial of this cause, together with the questions of law involved, and the decisions of the court upon said questions of law.” A motion by the defendant in error to strike from the transcript said statement, for the reason that the certificate of the trial judge is insufficient, and for the further reason that the statute above quoted is invalid, was reserved to the hearing.

We think the certificate is sufficient in form. It is certified to be a correct statement of “the questions of law involved,” and, if so, it must state all the questions of law involved.

If the question of the validity of the clause of the Act which provides for a “statement of facts” in place of a bill of exceptions, is a question which this court has jurisdiction to decide, we are unable to concur in the contention that the provision is invalid, and the motion to strike out the statement of facts will be denied.

Defendant’s claim to said machine is based upon a chattel mortgage thereon, given to him by Cosgrove and Johnson. Plaintiff’s claim thereto is based upon a levy and sale by a bailiff of the Municipal Court under ah execution issued out of that court against Cosgrove and Johnson, and his contention is, that defendant took possession of said machine under said mortgage for breach of condition, and after taking such possession surrendered and redelivered said machine to the mortgagors, and that thereby said mortgage became void as to the condition of the mortgagors.

“The facts as to said mortgage and the taking possession of the machine by plaintiff and the surrender of such possession to the mortgagors set forth in the statement of facts are as follows:

The evidence shows that on May 10, 1906, Godfrey Johnson and Oak L. Cosgrove, co-partners, trading as Johnson & Cosgrove, being indebted to defendant, executed and delivered to him their nine (9) promissory notes, eight (8) of said notes being for $100 each and the other for $50. The said notes were made payable —one on the tenth of each month after date; and to secure the payment of said notes Johnson & Cosgrove executed and delivered to defendant a chattel mortgage which was recorded in recorder’s office of Cook county May 16, 1906, conveying the automobile in question, as by the said notes and chattel mortgage, copies of which are hereto attached, marked “Exhibit A,” and made a part hereof, will more fully appear.

“On or about October 1, 1906, default having been made in one or more of the said notes (the evidence does not disclose the amount due) the defendant, by his attorneys, Messrs. Pierson & Pease of the City of Chicago, placed the said mortgage and notes in the hands of one Harry Underdown, who at that time was a county constable of Cook county, with directions to demand payment of the amount due, and upon failure to receive payment, to take possession of the automobile under the terms of the mortgage. To aid him in the matter, Constable Underdown employed one W. B. Scott, also a county constable of Cook county. Underdown and Scott proceeded to the place of business of Johnson & Cosgrove, which was located at 466 North Clark street, in the City of Chicago, and not finding the mortgagors they proceeded to the house of O. L. Cosgrove and made demand for payment of the amount due on the notes. Payment being refused Underdown and Scott took possession of the automobile, and started with it down to the offices of Pierson & Pease, which were located in the Chamber of Commerce building, in the City of Chicago, at the corner of La Salle and Washington streets. They had proceeded only a short distance when they were overtaken by Johnson, one of the mortgagors, who inquired of them what they were going to do with the machine. Underdown replied that he had taken possession of it under the mortgage, and was taking it down to the offices of Pierson & Pease. Johnson told Underdown that he thought the matter could be adjusted, and suggested that he accompany Underdown and Scott to the offices of Pierson & Pease, and see if an adjustment could not be effected. This was assented to by Underdown, and the party procedeed to the offices of Pierson & Pease. Upon arriving at the building Underdown left Scott and Johnson’s chauffeur in charge of the machine, and went up to the offices of Pierson & Pease, accompanied by Johnson. The evidence shows that Johnson paid the notes which were due at that date, together with costs, and Underdown was told by Mr. Pierson of Pierson & Pease, that an adjustment had been made and that he might let Johnson take the machine. Under down went with Johnson to the machine on the street, and repeated to Scott what Pierson had told him, and thereupon the machine was surrendered to Johnson, who took the machine and retained possession of it until some time in January following. Nothing further was done about the foreclosure of the mortgage.”

The mortgage contains the following provision:

“And provided, also, that it shall be lawful for the said mortgagor to retain "possession of the said goods and chattels, and at their own expense, to keep and use the same, until default shall be made in the payment of the said sum or sums of money above specified, either principal or interest, at the time or times, and in the manner hereinbefore stated, or of any other condition of this mortgage. And the said mortgagors hereby covenant and agree that in case default shall be made in the payment of the notes aforesaid, or any part thereof, or the interest thereon on the day or days on which the same shall become due and payable * * * then all of said notes and sums of money, both principal and interest, shall, at the election of the said mortgagee, without notice, become due and payable; and the said mortgagee shall thereupon have the right to take immediate possession of said property.”

The mortgage was recorded May 16, 1906. The notes put in evidence are all dated May 10, 1906; five are for $100 each, due in four, five, six, seven and eight months respectively after date, and one is for $50 due nine months after date.

The facts in relation to the execution sale on which plaintiff’s claim is based are set out in said statement as follows:

“gome time during January, 1907, an execution against Johnson & Cosgrove, in favor of the Harman Manufacturing Company, issued out of this court, was placed in the hands of W. B. Scott, a deputy bailiff of this court. This W. B. 'Scott is the same person who accompanied and assisted Constable Underdown in taking possession of the automobile as set forth above. Scott levied on the machine in question, and on January 29, 1907, sold it to plaintiff as above set forth, for one hundred and ninety-five dollars ($195); Scott stating that he was selling the interest of Godfrey Johnson and Oak L. Cosgrove in said property.

“Before and during the progress of the sale, the agent of mortgagee appeared and exhibited a mortgage and notes and gave notice to plaintiff and other prospective purchasers that the automobile offered for salé was covered by a chattel mortgage, which he held, and on which there was still due and unpaid the sum of five hundred dollars ($500) and accrued interest, the said mortgage being the same mortgage referred to above. Bailiff Scott, however, thereupon, stated to plaintiff that the mortgage exhibited was void; that he, himself, had foreclosed it. ’ ’

The trial court held upon the questions of law involved, that the said chattel mortgage “was a- first and valid lien on said automobile, and such lien was not invalidated by the action of the defendant about October 1, 1906, in taking possession and turning back to the mortgagors of said automobile as set forth in the above statement.”

In this state possession by a mortgagor of mortgaged chattels makes the mortgage per se fraudulent as to third persons unless such possession is held under the terms of the mortgage: Burnham v. Mueller, 61 Ill. 453; Constant v. Matteson, 22 id. 546; Reed v. Eames, 19 id. 594. The mortgage in this case contains a provision that the mortgagors might retain possession until default in some condition of the mortgage, and also provides that in case of default in the payment of any of said notes, the mortgagee should have the right to take possession of the mortgaged property.

The act of the defendant in taking possession of the machine for breach of the condition of the mortgage completed his title and thereby the legal title vested absolutely in him. McConnell v. The People, 84 Ill. 584; Simmons v. Jenkins, 76 Ill. 479; Drufee v. Grinnell, 69 id. 371. He could not by a redelivery of the machine to the mortgagors restore to them the right of possession given them by the mortgage, for that right had been forfeited and determined. “If a mortgagee, after taking possession, allows the property to go back into the hands of the mortgagor, the possession of the former is at an end, and the property.is liable for the debts of the mortgagor.” Jones Chat. Mortgs., sec. 181; Dorland v. Bradley et al., 66 Ill. 412.

We think that by the defendant’s acts of taking possession of the macMne and afterwards surrendering or redelivering the same to the mortgagors, the mortgage became void as to creditors of the mortgagors. It is immaterial what notice the defendant gave of his mortgage at the time of the execution sale. "There is no want of good faith on the part of a creditor in levying upon his debtor’s property included in a chattel mortgage which the law declares void as to him.” Porter v. Dement, 35 Ill. 478, 480.

The judgment of the Municipal Court will he reversed and judgment entered here for the plaintiff in the Municipal Court, plaintiff in error here, against the defendant in error here, with one cent damages.

Judgment reversed with judgment here for plaintiff in error, with one cent damages,

Affirmed.

Mr. Justice Freeman dissenting.


text:
    John Steffen, Administrator, Plaintiff in Error, v. Illinois Steel Company, Defendant in Error.
    Gen. No. 13,910.
    1. Master and servant—-what essential to recovery where slippery condition of floor is charged. Before a servant can recover because of an injury claimed as resulting from the slippery condition of the floor upon which he was working, he must prove, first, that the condition of such floor was due to the negligence of his master, and, second, that his injury proximately resulted therefrom.
    2. Master and servant—when doctrine of assumed rislc applies. A servant assumes the risk of a slippery condition of the floor upon which he is working, where he has had full opportunity to observe and know such condition, and has continued in the employ of his master, using such floor for a considerable period without complaint.
    Action in case for death caused by alleged wrongful act. Error to the Circuit Court of Cook county; the Hon. Edward O. Brown, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed April 17, 1908.
    Pease, Smietanka & Polkey, for plaintiff in error.
    Knapp, Haynie & Campbell and William Beye, for defendant in error.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

On the trial of an action brought by the plaintiff in error against defendant in error for wrongfully causing the death of plaintiff’s intestate, the court, at the close of the evidence for the plaintiff, directed a verdict for the defendant and entered judgment thereon, to reverse which judgment this writ of error is prosecuted.

Plaintiff’s intestate had been for three weeks before his death employed as an oiler in a rolling mill of the defendant. It was his duty to oil the machinery, and also, two or three times a week, to put tar on the gear wheels.

There were in the mill two parallel lines of shafting: a power shaft so let into the floor of the room that about half of its diameter was above the level of the floor, and a line shaft which was about three and a half feet above the floor. Power was communicated from the power shaft to the line shaft by means of a spur wheel on each shaft -and an intermediate spur wheel into which each of the other spur wheels meshed. To carry the bearing of the power shaft and the bearings of the intermediate spur wheel there was a double, or “two step” bracket. To furnish space for the spur wheel on the power shaft to revolve in, a pit sixteen inches deep was made in which the bracket was placed. The space in the pit between the north side of the pit and the north face of the bracket was eighteen inches wide. The rolls were placed at right angles with the line shaft, and power was communicated to each roll by a beveled gear wheel eighteen inches in diameter at the end of the roll which meshed into a similar wheel on the line shaft.

Plaintiff’s intestate began work at six o’clock in the evening. About seven o’clock he was seen going south, oiling, the machinery. Sperry, the person who last saw deceased before the accident, testified that he last noticed him oiling the fourth or fifth roll of said pit; that a second or two later he saw a pair of feet in the air; that he took steps to stop the machinery, ran to the pit and found plaintiff’s intestate in the pit dead. He testified to facts tending to show that deceased came to his death by falling into the beveled gearing of the first roll north of the bracket.

It is not contended that deceased did not assume the risk of injury from exposed cog wheels. The contention of the plaintiff in error is, that the floor near the edge of the pit was slippery; that the question whether the defendant was negligent in permitting the floor to become and remain in such condition, was a question for the jury, as was the question whether the deceased was guilty of contributory negligence.

The evidence shows that by the operation of the mill, oil and tar were thrown from the gearing on the floor, and also scale from the iron qt steel as it passed through the rolls. Sperry, the only witness who testified as to the condition of the floor, testified in chief that “the condition was pretty fair, of course the same as in any of the factories; when oil is spilled it lies on the floor, and the rolls certainly throw some scale; there was a little oil spilled all over.” On cross-examination he testified that “the tendency of scale on the floor was to make the floor a little rough, and sometimes it would tend to keep a man from slipping ; ’ ’ that he had seen smooth scale and rough scale; that the night of the accident the scale was in small pieces like cinders, sand or gravel, and that makes it rough.

We do not think that from the evidence the jury could properly find that the defendant was guilty of negligence in respect to the condition of the floor. Nor do we think that from the evidence the jury could properly find that defendant slipped and fell into the gears because of the condition of the floor. If, for the sake of the argument, it be conceded that the jury might find from the evidence that the floor was in a slippery condition, and that permitting it to be in such condition constituted and was negligence on the part of the defendant, it is not enough that the evidence show such condition may have caused deceased to slip and fall into the gears. Men fall from other causes than slipping upon a slippery floor. In this case plaintiff may, through failure to look before him, have stepped into the pit, or fallen from other causes into the gears. To entitle the plaintiff to a verdict he was bound to prove not only the negligence charged of the defendant, but that such negligence caused the death of his intestate. Burke v. Hulett, 216 Ill. 545; A., T. & S. F. Ry. Co. v. Alsdurf, 68 Ill. App. 149; Patton v. Tex. & Pac. Ry. Co., 179 U. S. 659.

But for still another reason a verdict for the jury was properly directed. The evidence shows that the floor was in the same condition on the night of the accident that it had been during the three weeks that deceased was employed as oiler in the mill. Deceased had full opportunity to observe and know the condition of the floor, and he, without complaint, continued in the service and must be held to have assumed the risk. Republic Iron Co. v. Lee, 227 Ill. 246; E., J. & E. Ry. Co. v. Meyer, 226 id. 358; McCormick Harvester Co. v. Zakzewski, 220 id. 522; Montgomery Coal Co. v. Barringer, 218 id. 327; Browne v. Siegel, Cooper & Co., 191 id. 220.

The judgment of the Circuit Court will he affirmed.

Affirmed.