author: Mr. Justice Brown

text:
    Queen Insurance Company et al. v. John Spry Lumber Company.
    Gen. No. 13,615.
    1. Insurance—when reformation of contract' of, will not he awarded. Before a court will grant reformation of a fire insurance policy, narrowing its scope with respect to property covered, it will consider the question as to whether the company seeking reformation has acted with promptness and with due regard to equitable principles.
    2. Insurance—when reformation of contract of, will not he awarded. Held, under the evidence in this case, that it was proper to deny reformation of a fire insurance policy narrowing the provisions thereof with respect to the property covered.
    3. Reformation of contract—when cannot he had. An attempt to supersede a written agreement with the parol negotiations which preceded and induced it cannot succeed under the form of a suit in eqqity to reform this contract.
    4. Reformation of contract—degree of proof necessary. The evidence to support a reformation of a written contract, where such reformation amounts to a rescission, should approach certainty.
    Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed February 13, 1908.
    Beach & Brown, for appellants.
    Adams & Froehlich, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This appeal is from a decree of the Superior Court dismissing for want of equity a hill in chancery brought by appellants against the appellee to reform four several policies of insurance issued to appellee by the appellants, and a fire loss having occurred of property which appellee claimed was covered by said policies, and suits at law having been brought by it on the same, to enjoin the bringing or further prosecution of actions at law against the appellants for such loss or damage until the determination of the suit at bar.

The policies, the reform of which was sought by the bill, were as follows:

Policy 1773078 of the Queen Insurance Company of America for $750, dated March 15, 1905, and running for one year.
Policy 1758939 of the Queen Insurance Company of America, for $1,000, dated August 19, 1905, and running for one year.
Policy 16694 of the National Union Fire Insurance Company of Pittsburg, for $1,500, dated December 5, 1904, and running for one year.
Policy 320347 of the Virginia State Insurance Company, for $500, dated March 15, 1905, and running for one year.

Each was of the usual standard form, and insured the John Spry Lumber Company against all direct loss or damage by fire to the amount mentioned in the policy, “to the following described property while located and contained as described herein, and not elsewhere, to wit:

John Spey Lumber Company.

(Amt. of Policy.) On Lumber, Lath, Shingles, Pickets, Posts, Timber, Hardwood Flooring, or other merchandise, not more hazardous, their own or held by them in trust ór on commission, or sold but not delivered, all contained in their yard or in buildings, sheds, or cars on track, in said yard, situated on the east side of Ashland avenue, extending north from the West Branch of the South Branch of the Chicago river, Chicago, Hlinois. Other insurance permitted until required. Warranted by assured that streets shall be kept clear of lumber; that piles of lumber shall not exceed thirty-five feet in height; that there shall be maintained a clear space of sixty-five feet north of main part of mill.”

There was a fire on the premises of the John Spry Lumber Company on October 6, 1905, while these policies were in force, which destroyed and damaged lumber and merchandise of like character, in the planing mill and adjoining and communicating buildings of said company, in the yard “situated on the east side of Ashland avenue, extending north from the west branch of the south branch of the Chicago river. ’ ’

This lumber and merchandise were covered by the terms of the policies before quoted, and the appellee, the John Spry Lumber Company, demanded from the Queen Insurance Company the sum of $1,408.96, from the National Union Fire Insurance Company the sum of $1,207.68, and from the Virginia State Insurance Company the sum of .$402.57.

On the refusal of the respective companies to pay these sums, the lumber company brought suits at law against them respectively, which were pending when the bill in this case was brought.

The refusal of the companies to acknowledge and pay the loss was presumably due to the same position on their part which they take in this bill, namely, that the companies did not intend by their respective policies to cover the property which was destroyed or damaged, and which was situated “in the planing mill and adjoining and communicating buildings,” but intended to cover only the lumber and other merchandise contained in the yard or in buildings, sheds or cars on track in the yard outside of the said planing mill and adjoining and communicating buildings, and that the lumber company knew that the insurance companies thus intended to cover only the last mentioned property, and indeed represented to the said insurance companies that it desired insurance by said policies only on said property, and represented also that the “policy form,” as it is called in the bill—being the part of the policies before quoted—described only said property.

In this cause below it was stipulated between the parties in open court that the defendants would not raise the question on the trial—although it was suggested by their answers—that there was a misjoinder of complainants, or • that the bill was multifarious. No such question is, therefore, considered by us, and we pass on the case on its merits.

It is not claimed by the companies that the policies in question did not clearly cover the property for the loss and damage to which claim is made against them, but it is said that it was by their mistake so covered, and that this mistake was made under such circumstances and with such representations or statements on the part of an agent of the lumber company, that these written contracts of insurance should be reformed.

It is undoubtedly true, as urged by appellants, that mutual mistake is often a ground on which reformation of contracts can be demanded and obtained, and that the proven misrepresentations of one party to a contract, inducing the making of a contract in a particular form by the other, may be, under certain circumstances, good ground for the rescission or reformation of such a contract, and estop the misrepresenting party from insisting upon the expressions of the actually written contract.

But before passing on the claims of the complaining companies in this case, it would be well to advert to facts which are undisputed and pertain to and affect the relative position of the parties.

The policies in question were issued by the respective companies after the policy form, printed, had been given them. The agents directly responsible for their issuance were regularly doing business in Chicago. It was their business to know everything necessary to be known of such risks—the “lumber lines” being well known sources of business income to the companies. They had atlases and memoranda which they could consult, giving all that necessary information. The companies had all, by their resident agents, issued like policies for previous years, which policies had expired, and of which those now in question were an extension. They had received the premiums demanded on the policies.

The agent of the lumber company—as appellants claim him to be—whose “mistake” or “misrepresentations” are to be, according to the contention of appellants, imputed to the appellee, was an insurance agent in the same way -of business as themselves, representing various insurance companies as their general agent, but securing from other agents policies for his clients or customers when unable to furnish them from Ms own companies—being held in such case for the premiums less a brokerage commission allowed him, and M his turn holding Ms customers for the full premium. Waiving, therefore, a discussion of the questions whether insurance brokers m general are agents of the insured or of the insurer, and whether, in this particular case Eequa was in any sense the agent of the lumber company rather than of the insurance companies, it is plain that his agency for the lumber company, if it existed, was in the purest sense a special one for the purpose of securing this rnsurance. He had no general right at least to speak for the Msured. He had been applied to for insurance by the lumber company, who did not care from whom it ultimately came, so it were good, as the responsible factor m procurmg and furnishing it, and his relations to the lumber company were known in this sense, accordmg to the natural course of business, to the agents of the now complaiMng companies. There was nothing, therefore, in the nature of those transactions and dealings, which resulted in the issuance of these policies, which excused or should have led to carelessness or heedlessness on the part of the contracting insurance companies or their agents—nothing so to throw them off their guard as to cause them for successive years to sign and issue printed policy forms containing clear and unambiguous descriptions of property they did not Mtend to Msure.

These alleged mistakes and misrepresentations were not discovered, nor was a rectification attempted, while the parties might, by the return of the premiums on the one hand and a surrender of the policies on the other, have been placed in statu quo, but after a fire has destroyed the property insured and no such reestablishment of former condition is possible, the power of the court sitting in chancery is invoked in name to reform and in effect to rescind the contracts.

The appellants rely much on a claimed estoppel; but it' seems to us that if the general principles of estoppel are invoked, they will rather foreclose than aid the appellant companies. It was during the years when the parties could have been placed in statu quo and when new insurance could have been obtained by the lumber company, that the “policy forms,” of which the companies retained copies, should have been scrutinized, if they were hastily and unheedingly inserted in the insurance contracts. On such scrutiny, at least, if because of the rate paid or for any other reason the risks as actually taken were not those which the companies desired to carry, they could have put an end to the insurance, for they had reserved in their contract the power to cancel them at any time on five days’ notice—retaining, moreover, a proportionate part of the premiums paid. With this ability—first, to refuse a printed application which was clear and unambiguous, and, secondly, to cancel the contract founded on it and embodying it whenever they pleased before a loss occurred—it seems rather late for this attempt to reform the contracts so long after their inception and, after a loss, makes of such a reformation a cancellation.

Moreover, the attempt seems to us not to be inaptly described in the words which the appellants have quoted in their reply brief from an opinion of the Circuit Court of Appeals in the Eighth Circuit in another case: “In form this is a suit in equity to reform written contracts. In fact, it is a bald attempt to supersede written agreements with the parol negotiations which preceded and induced them.”

Waiving altogether, as we have indicated we do, the questions concerning which we think there is something more than grave doubt, whether Requa was the agent of the appellee, and whether his conversations with the various insurance agents are to be imputed to the appellee at all, the fact remains that all that is attempted to be proved is that an agent verbally stated that a printed application and form which he offered to the inspection of skilled 'experts in their line of business, with no pretense of concealment or evasion, and which was incorporated in the contracts, did not .say what it plainly and directly did say.

The agents had memoranda and maps; there was no building or shed in the space in which they say Requa told them the piled lumber was situated on which he wanted insurance, and they knew, or could, by the most ordinary care, have known this, and yet they signed and delivered contracts in compliance with the application which expressly included the hardwood flooring and other merchandise in the buildings standing on other space. Is it not such a case as the Supreme Court speaks of in Steinmeyer et al. v. Schroeppel, 226 Ill. 9, where it says: “If equity would relieve on account of such a mistake, there would be no stability in contracts?” This, at all events, is our opinion as applied to the facts of the present case.

It may well be that had the appellants’ agents been properly careful in their business and properly mindful of what they were doing, they would not have issued these policies. This seems a fair inference from their testimony. But the fact remains that they did issue them and allowed them to remain in force until it was too late for the appellee to replace them, and until the contingent liability on them had become absolute. And this they did, as it seems to us, without reasonable excuse for their own carelessness in any acts or utterances of the appellee, even allowing Mr. Requa to have been its representative in bargaining for the insurance.

The evidence to support a reformation of a written contract, especially where such reformation amounts to a rescission which will not leave the parties in statu quo, should approach certainty in its proof that justice requires the remedy. It does not do so in this case.

The decree of the Superior Court is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    James H. Eckels et al., Receivers, v. Hakon Hawkinson.
    Gen. No. 13,644.
    1. Appeals and ebbobs—when motion for new trial essential to review. A motion for a new trial, with an exception to the overruling thereof, is essential to preserve for review the question as to whether the verdict is against the weight of the- evidence.
    2. Appeals and ebbobs—when motion for new trial not essential to review. The propriety of the court’s rulings upon instructions is preserved for review notwithstanding no motion for a new trial has been interposed and no exception preserved to its overruling.
    3. Appeals and ebbobs—effect of refusal to argue motion for new trial. A refusal to argue a motion for a new trial when asked to do so by the court, operates as a waiver thereof and has the same effect as a failure tó interpose a motion for a new trial.
    4. Instructions—proper method of determining facts in issue. An instruction is proper which tells the jury that they are to find the facts from the evidence and apply to them, so found, the law stated by the court.
    5. Instruction—when modification not improper. An instruction as follows was asked:
    “If you believe from the evidence under the instructions of the court, that the sole cause of the injury to the plaintiff was the fact, if it be a fact, that the horse plaintiff was driving caught his shoe in the slot or opening in said street car track, if he did so, then the plaintiff cannot recover in this case, and you, should find the defendants not guilty.”
    But was modified by the court by inserting after the phrase “under the instructions of the court” and before the phrase “that the sole cause of the injury,” the following clause: "that there was no negligence on the part of the defendants, but.” Held, not error.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Albert C. Rap.nes, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed March 9, 1908.
    Statement by the Court. This is an appeal from a judgment of the Superior Court for $1,000 in favor of the appellee, who was plaintiff below, against the appellants, who were defendants below. The appellants as receivers, etc., were joined as defendants in the suit with the Chicago Union Traction Company and the Chicago West Division Railway Company, but after the plaintiff’s evidence was heard, the court instructed the jury to find the corporations not guilty, which was accordingly done. The suit was in tort, and the declaration alleged that the defendants “so carelessly, negligently and improperly drove, governed, managed and directed” an electric or motor car, that it was brought into collision with a wagon which the plaintiff was driving at about the intersection of West Ohio street with Milwaukee avenue in Chicago, by means of which the plaintiff was thrown to the ground and injured. The plea of the defendants was the general issue. The cause was tried before a jury. After the plaintiff’s evidence was heard the jury, as before stated, under the instructions of the court rendered a verdict of not guilty against the corporations. After the close of all the evidence they returned a verdict of guilty as to the receivers, and assessed the plaintiff’s damages at $1,000.
    A written motion for a new trial was made by the defendant receivers, specifying twenty-four alleged reasons therefor. Among them it was urged that the verdict was against the law and the evidence; that the court erred .in its rulings on the admission of evidence by admitting improper evidence offered by the plaintiff and excluding proper evidence offered by the defendants; that the court erred in refusing a peremptory instruction for the defendants; that it erred in giving each of the instructions given at the request of the plaintiff, and in refusing each of the instructions offered by the defendants, which was refused ; and in modifying instructions asked by the defendants and giving them as modified; that the verdict was excessive in amount, and that counsel for the plaintiff made improper remarks to the jury.
    The bill of exceptions certifies: “Said motion for a new trial was duly and regularly set down for hearing and regularly called for argument and hearing, whereupon defendants, by their counsel, declined to argue said motion or to point out to the court any specific error complained of in said motion, after full opportunity so to do was given by the court, and thereupon and thereafter the court denied said motion for a new trial; to which ruling of the court the defendants, by their counsel, then and there duly excepted.”
    A motion in arrest of judgment was also made by the defendants and denied by the court. Judgment for $1,000 was then entered, to be paid in due course of administration by the receivers. From that judgment this appeal has been prosecuted.
    The assignments of error allege that the verdict was against the law and the evidence; that the damages were excessive; that the trial judge erred in his rulings on evidence and in giving, refusing and modifying instructions; that the case should have been taken from the jury by a peremptory instruction; that the damages are excessive and the result of sympathy aroused by improper remarks in the argument of plaintiff’s counsel to the jury; and that the court erred in overruling the motion of the defendants for a new trial and the motion in arrest of judgment.
    John A. Rose and Albert M. Cross, for appellants; W. W. Gurley, of counsel.
    Morse Ives and Walter A. Brendecke, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

Appellants’ argument in this court is largely based on the proposition that the verdict below was against the weight of conflicting evidence. This can only be considered by us as the question is raised by the denial by the court below of the motion for a new trial. Ill. Central R. R. Co. v. O’Keefe, 154 Ill. 508-512; Brecher v. Chicago Junction Railway Co., 119 Ill. App. 554-556. But in the bill of exceptions in this cause the trial judge certifies, as we construe his language, that being invited and called on by him to argue the motion for a new trial, which purported in part to be based on this same reason, the defendants refused to do so, and refused to point out to him, any more particularly than did the formal written motion before him, what they relied on to show the verdict erroneous, or the rulings of the court on the admission of evidence, mistaken.

The appellee insists that this is a sufficient answer to all of the appellants’ objections to the judgment, and we think he is right, so far as rulings on the evidence or its weight and sufficiency are concerned. The instructions given and refused may be reviewed, as is pointed out in the cases cited supra without a motion for a new trial, bnt without it we could not review the evidence, consider its weight, or the rulings of the court on its admission or exclusion.

If the motion for a new trial is waived below, or overruled at the request of or with the assent of the mover, the same result follows. The case is then to be regarded as, if no motion for a new trial had been made. Brecher v. Chicago Junction Railway Co., supra, and cases therein cited.

The question therefore is in this case, did the action of the appellants in the court below, when the motion for a new trial was called for. argument, amount to a waiver of it.

The practice of passing on a motion for a new trial merely pro forma was severely animadverted on in Penn v. Oglesby, 89 Ill. 110, by Judge Walker, speaking for the Supreme Court. In the ease of Brewer v. The National Union Building Association in this court, 64 Ill. App. 163, it appeared by the bill of exceptions that in the court below the “motion for a new trial came on to be heard in its regular order, both parties being represented by counsel. Said affidavits and said grounds of said motion for a new trial, however, were not nor was either or any of them read or called to the attention of the court, and said court denied the motion and entered judgment on said verdict,” etc. The court held, speaking through Judge Gary, that “the court was right in refusing a new trial for which the appellant offered no reason.” (It appears by the report of the case that there were many reasons formally assigned in the written motion.) In alluding to Penn v. Oglesby, supra, Judge Gary said: There, the pro forma part was the act of the court, and the party had the right to complain; here, it is the act of the party, and he has no right to complain. ’ ’

In a number of other cases in this court the position is taken that the mere fact that the motion for a new trial is not argued in the court below is an abandonment and waiver of it which should excuse this court from examination of its grounds. This view was fully expressed in Calumet Furniture Co. v. Reinhold, 51 Ill. App. 323-325, and more concisely in Fireman’s Insurance Co. v. Horton, 68 Ill. App. 497. Later however, a less rigorous rule has been applied.

Thus, in Hartford Fire Insurance Co. v. The Northern Trust Co., 127 Ill. App. 355, the doctrine of Calumet Furniture Co. v. Reinhold, supra, is by this" court expressly repudiated, if it is to be understood as tantamount to a general rule that every motion for a new trial which is not argued is to be • considered abandoned. Similar dissent from this extreme view has been expressed by the learned justices of the Appellate Court in the Second and Fourth Districts, respectively, in Modern Woodmen of America v. Graber, 128 Ill. App. 585, and in Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Sparks, 122 Ill. App. 400. And we consider the opinion in Landt v. McCullough, 206 Ill. 214, as expressing the views of the Supreme Court to the same purport. But in all these cases the principle is recognized that the motion for a new trial may be so waived by abandonment in the court below as properly to foreclose the Appellate Court from examining the propositions on which it is based, but reasons are given why in the particular case the waiver cannot be presumed. Thus, Judge Magruder in Landt v. McCullough, points out that the court instructed the jury to return a verdict for the plaintiff, and on the defendant’s moving for a new trial, refused to allow the motion to take its usual course, or even to give the defendant the time to reduce the reasons for his motion to writing before the disposition of it, but announced that he would pass on it at once.

Mr. Justice Myers in C., C., C. & St. L. Ry. Co. v. Sparks, 122 Ill. App. 400, says: “It appears from the abstract that appellant filed a written motion for a new trial in which was set out in detail the reasons urged in support of the motion. The court asked what the motion contained. Appellant answered that it contained the usual grounds, that the verdict was contrary to the law and the evidence, that the jury disregarded the instructions of the court, and suggested that the court was familiar with the law and the evidence. It further appears that the motion was read by the court, taken under advisement, and after-wards overruled. This we regard as a sufficient presentation, and it must be assumed from what was done that -if argument were necessary the court or opposing counsel would have required it.”

In Modern Woodmen of America v. Graber, Mr. Justice Dibell says: “The record shows that the motion for a new trial was made and denied the same day that the verdict was returned. It is fair to assume that appellant’s attorney considered it useless to argue its contention further in that court. Me was not ashed to make an argument or to state the grounds of his motion.”

In Hartford Fire Insurance Co. v. Northern Trust Co., 127 Ill. App. 355, Mr. Justice Ball says: “Every point in the motion may have been fully argued during the trial. Mad the court desired to hear counsel further, all he had to do was to indicate the fact.”

In the case at bar, as we read the record, the court allowed ample time for preparation of the motion for a new trial, and when it was reached in regular course, did, as far as he could, “require” argument—certainly “asked” it and “indicated” that he desired to hear it.

Under these circumstances the appellants “declined to argue said motion or to point out to the court any specific error complained of in said motion.” The object of a motion for a new trial was lost sight of in this course. I. C. R. R. Co. v. Johnson, 191 Ill. 597.

We think that under these circumstances the motion must be considered abandoned. Consequently we do not consider that it is open for appellants to argue here that it was improperly denied, and still less that it is incumbent on us to analyze the evidence in this opinion to justify the conclusion at which we have arrived, that the questions on the evidence so strenuously argued by the appellants were all for the jury, and that even if we had been at liberty and obliged to pass on them; we could not have disturbed its verdict. For notwithstanding our conclusion as to our duty in relation to it, we did give it careful consideration in connection with the instructions on which we were called upon to pass.

The first instruction given at the request of the plaintiff is complained of because it tells the jury that they are to find the facts from the evidence and apply to them, so found, the law stated by the court. We deem this unobjectionable and a very good statement of the law. The# suggestion made by appellants that it would cause the jury to ignore several instructions given at the request of the defendants, which should govern them in passing on the facts, is hypercritical. The instruction is in no sense misleading.

Nor do we find any reversible error in the modification of the eighth instruction, given at the request of the defendants. The instruction as asked was:

“If you believe from the evidence, under the instructions of the court, that the sole cause of the injury to the plaintiff was the fact, if it be a fact, that the horse plaintiff was driving caught his shoe in the slot or opening in said street car track, if he did so, then the plaintiff cannot recover in this case, and you should find the defendants not guilty.”

We do not think the instruction should have been given in this form. The defendants say truly that no negligence on the part of the' defendants resulting in a condition of the track which allowed the catching of the horse’s shoe in the slot, is charged in the declaration. Consequently, they say, if the “sole” cause of the occurrence was the catching of the shoe, it is plain no negligence of the defendants charged in the declaration could have contributed to it. “The use of the word ‘sole’ in the instruction, as asked, necessarily excluded any hypothesis of defendants’ negligence,” they say.

But even if, on a strict analysis and with careful attention to the meaning of words, this was the true effect of .the instruction, it would have been misleading. The meaning very likely to have been placed on it by a jury would have been: “If the plaintiff’s injury would not have happened if the horse’s foot had not caught in the slot, then the defendants must be found not guilty.” Such a view of the instruction would of course have been very injurious to the plaintiff, for the gist of his complaint was that the defendants’ agents negligently ran the car, when they knew or had the duty of knowing his horse’s position.

We think, in view of other instructions given at the instance of the defendants, which carefully laid down, as applied to the facts of this case, the only conditions under which the plaintiff was entitled to recover, such as the 13th, 16th, 17th, 18th, 19th, 21st, 22d and 23d, and of the 14th and 15th so given, which were, respectively:

“If you believe from the evidence, under the instructions of the court, that the injury to the plaintiff was the result of a mere accident which occurred unthout the negligence on the part of the defendants or either of them charged in the declaration, you should return a verdict of not guilty”; and
“You are instructed that you cannot find the defendants guilty in this case, because of the condition of said street car track or the slot in said track ■ at the time and place in question,” this eighth instruction might properly have been refused altogether.

The court, however, modified and gave it. The modification consisted in placing in it the words which are italicized below. As given it read:

“If you believe from the evidence, under the instructions of the court, that there was no negligence on the part of the defendants, but that the sole cause of the injury to the plaintiff was the fact, if it be a fact, that the horse plaintiff was driving caught his shoe in the slot or opening in said street car track, if he did so, then the plaintiff cannot recover in this cause, and you should find the defendants not guilty.” Certainly, as modified, the instruction did not state an incorrect or inaccurate proposition of law, if the original draft was accurate. Under the conditions named in the instruction as modified, defendants certainly would not say that the jury should not find the defendants “not guilty.”

Even standing by itself, if it were the only instruction given, it would not have been inaccurate, and we do not think it would have been as likely to mislead the jury as the original draft would have been. Taken in connection with the other instructions which we have referred to, and those which we have quoted, however, it could not have misled the jury, but must have been understood as stating the same rule as though the words “of the nature charged in the declaration” had been inserted after the word “negligence.”

The judgment of the Superior Court is affirmed.

Affirmed.


text:
    Chicago Consolidated Traction Company v. Michael F. Kinane.
    Gen. No. 13,649.
    1. Amendments and jeofails—effect of dismissal of all defendants. The dismissal of all of the original defendants joined in an action of tort, leaving therein only those defendants who had been joined after the commencement of the action, does not entitle the remaining defendant to the dismissal of the action.
    2. Vebdict—when not disturbed as against the evidence. In this case there is not such a clear preponderance of evidence on either side as makes it our duty to set aside the decision of the jury on it.
    3. Vebdict—when not excessive. A verdict for $5,000 rendered in an action for personal injuries is not excessive where it appears that the plaintiff was permanently and seriously injured.
    4. Argument of counsel—how far law may be stated. It is proper for counsel to state to the jury what he believes the law to be. It is not proper for counsel to state absolutely what the law is.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. George A. Duput, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed March 9, 1908.
    Statement by the Court. This appeal is from a judgment of the Superior Court of Cook county for $5,000 in favor of the plaintiff below (appellee here) against the defendant below (appellant here). The judgment was upon the verdict of a jury in a personal injury case, in which the plaintiff declared that the defendants (as will appear hereafter there were originally more than one defendant) were on September 26, 1904, possessed of and in control of a line of street railway along West Monroe street in Chicago, and by their servants were running and operating a certain electric car thereon in a westerly direction “towards and to wit, 300 feet east of Halsted street, a certain other public highway there”; that he, the plaintiff, with all due care and diligence on his part, was riding in a certain wagon in a southerly direction upon West Monroe street and across the tracks of defendants there; that defendants, by their servants and agents, then and there “so negligently, carelessly and improperly ran, drove, operated and managed said electric car, that by and through the negligence and improper conduct of said defendants by their said servants” said electric car ran and struck against the wagon with great violence, whereby the plaintiff was thrown to the ground and injured.
    The action was begun on October 22, 1904, by the plaintiff against three receivers of the Chicago Union Traction Company, against three receivers of the West Chicago Street Railroad Company, and against the Chicago West Division Railway Company.
    August 22, 1906, on the plaintiff’s motion, it was ordered that all papers and proceedings “be and are hereby amended” by making Chicago Consolidated Traction Company, a corporation, an additional party defendant, and that a summons issue, etc., and leave was given to amend the declaration, which was done by adding the words “and Chicago Consolidated Traction Company, a corporation,” etc., to the caption and commencement of said declaration immediately after the names therein of the original defendants.
    When the cause was called for trial before a jury on January 31, 1907, counsel for the Chicago Consolidated Traction Company, which had pleaded the general issue to the declaration as amended, admitted in open court that at the time and place in question the Chicago Consolidated Traction Company owned and operated the car and tracks in question, and employed the motorman and conductor of the car. Thereupon the counsel for the plaintiff moved to dismiss the cause as to all the other defendants, and was allowed to do so without costs, without objection by the Chicago Consolidated Traction Company. The counsel for that company, however, immediately thereafter moved to dismiss the cause altogether, on the ground that as no one of the original defendants was left in the cause, the court had on that account lost jurisdiction.
    It is implied in the bill of exceptions, although not definitely stated, that the motion to dismiss included a motion to withdraw the general issue already pleaded by the company.
    The court denied the motion, and counsel for the defendant then stated that the motion being denied, the general issue would stand as before, but that it “ought to be understood” that the company attacked the jurisdiction of the court in the case, and that everything subsequently done was done “under objection and exception upon that ground.” To' this the court assented, saying that the distinct understanding of the court and of counsel for both sides was that the defendants were defending “under protest and as a matter of necessity, and denying the jurisdiction of the court at all stages.”
    At the close of the plaintiff’s evidence, and again at the close of all the evidence, the counsel for defendant asked the court for a peremptory instruction for the defendant, which motion was denied. After the evidence was all heard, the court gave to the jury three instructions at the request of the plaintiff, and twenty-three at the request of the defendant, refusing none that were offered.' No complaint is made by appellant in argument of any of these instructions, although the giving of those asked by the plaintiff is included in the formal assignments of error. The appellant, however, as hereafter noted in the opinion, claims that a ruling by the court during the argument of plaintiff’s counsel, of which they complain and to which they excepted, was tantamount to an • erroneous instruction.
    The trial resulted in a verdict for the plaintiff for $5,000, on which, after a motion for a new trial and a motion in arrest of judgment had been overruled, the court gave the judgment appealed from.
    The motion for a new trial, which was in writing, characterized the verdict as against the law and the evidence, as inconsistent with the instructions, and as excessive, and attacked the rulings of the trial judge on the admission and exclusion of evidence and his refusal to take the ease from the jury, and complained also that counsel for the plaintiff had addressed improper remarks to the jury in argument.
    The same objections are made to the verdict and judgment in the assignments of error in this court.
    John A. Rose and Albert M. Cross, for appellant; W. W. Gurley, of counsel.
    William E. Mason and John C. King, for appellee; James D. Power, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

We do not think the contention of the appellant in this case regarding the jurisdiction of the court well taken. The bringing into the case of the appellant as an additional defendant was exactly within the terms of sections 23 and 24 of the Practice Act as it stood when the amendment was made. The discontinuance five months later as against the co-defendants of the appellant was equally within those terms.

The decision of this court in Zukowski v. Armour & Co., 107 Ill. App. 663, is relied on as sustaining the proposition of the appellant that jurisdiction was lost when the only defendant who remained in the cause was one who had been added after the suit had been begun and was pending against others. We do not so read the opinion in that case.' The distinction was there drawn between substitution and addition or diminution of defendants, and it was held that as the common law did not allow either, and the statute only covered the latter, “substitution” was not permissible*

. “It will be noted,” says Judge Ball in the opinion, “that when the corporation was substituted as sole defendant, there was a dismissal as to all the then defendants, and that token the individuals named were afterward made defendants* the corporation, then the only defendant, was dismissed out of the case. * * * The plain reading of the latter section” (i. e. of the statute) “is that in order to add a necessary party to either side of the ease there must be a plaintiff or a defendant already there to whom the new party may be joined, and that when a discontinuance is asked as to plaintiff or as to defendant, there must then be another plaintiff or another defendant from whom the party discontinued may be severed.”

The conditions named existed in the case at bar both when the addition and the dismissal were made, and there is nothing in the Zukowski case showing that this court meant to decide that the final result of “substitution” of an ultimate defendant for an original one might not be secured under the Practice Act, provided the terms and conditions of the statute were complied with.

Irrespective, therefore, of the question which might be raised as to the efficiency.of the “caveat” of the appellant before proceeding to trial, to repel the possible claim that it had, by going to trial, acknowledged the jurisdiction of the court, and assuming that the position of the appellant, assented to by the court and apparently by opposing counsel, was a possible and effective one under the law, we think that we must, nevertheless, consider and decide this case upon the merits.

The first contention of the appellant on the merits is that the verdict was against the weight of the evidence, and indeed, that practically there was no proof to sustain the allegation of the defendant’s negligence, and that there was such evidence of contributory negligence on the part of the plaintiff as to make it incumbent on this court to say as a matter of law that he was guilty of it and cannot recover.

We think that unless it is possible for us thus to say as a matter of law that the evidence entirely fails to show, defendant’s negligence, or conclusively shows plaintiff’s contributory negligence, we should not disturb the findings of the jury. If any of the evidence can be said fairly to establish the defendant’s negligence, or to contradict that which the defendant appeals to as sustaining the allegation of contributory negligence, then the weight of it, as against that which conflicts with or contradicts it, seems to us in this case a question for the jury. In other words, where the testimony conflicts as in this case, there is not such a clear preponderance on either side as makes it our duty to set aside the decision of a jury on it.

The accident resulted from a collision between an electrically driven street car run by the defendant and a wagon which the plaintiff was driving. The collision happened on West Monroe street, in Chicago, about half way between Desplaines street and Halsted street. The wagon with its pole was twenty-six or twenty-seven feet long. It was loaded with a lot of school furniture. It was driven out of a private driveway on the property of the Board of Education, which runs into West Monroe street from the north, and which was between two buildings occupied and used by said board. The wagon was driven south out of this driveway onto the tracks of the defendant on West Monroe street. It is noted in the evidence and argument that there was a little incline in the driveway towards the street, but it was extremely slight. From Desplaines street to the east line of the driveway was 471 feet. From the west line of the driveway, which was eleven feet wide, to Halsted street was 328 feet. The street was sixty feet wide from lot line to lot line and about thirty-eight feet from curb to curb, of which thirty-eight feet the two tracks of the defendant occupied about fourteen feet and a half. The northerly tráck was used by westbound cars, which come north from Desplaines street and turn west on West Monroe street; the southerly track was used by east bound cars. The cars are run by an overhead trolley wire. From the south lot line on the north side of the street to the corner of the Board of Education, building east of the driveway is about eight feet, and to a little bay in the building, which begins fifteen feet and a half from the corner of the building, is two and- a half feet less. The wagon was driven out of the driveway by the plaintiff, loaded as described at about eight in the morning on the day of the accident. The plaintiff was in the employ of the Board of Education and was going out with furniture consigned to different schools. He was going east to go to the south side, and to take the right hand side of the street was obliged to cross the tracks. When the wagon was across the northerly tracks it was struck (about midway of its length) by a westbound car, which pushed it a short distance (about two feet, one witness states), and then itself slid a few feet east on the track. Two men, who were on the wagon, the plaintiff being one of them, were thrown off, and the plaintiff was injured.

It is plain that the questions of negligence on the part of the defendant’s servants and contributory negligence on the part of the plaintiff in these circumstances must depend on a variety of coincident facts— the speed of the car, the distance traversed by it after the motorman did see or should have seen the wagon, and the driver of the wagon did see or. should have seen the car, the condition of the street as affecting this last consideration, the condition of the rails, the conduct of the parties concerned in the driving of both car and wagon, and perhaps others. Among them the speed and distance of the car when the wagon should have been in sight from the car, or- the car from the wagon, are perhaps the most important.

There were, including the plaintiff himself, the man with him on the wagon, and the motorman and conductor of the car, eight eyewitnesses of the accident called to testify. Stack, however, "the companion of Kinane on the wagon, was for some reason not examined nor cross-examined as to the occurrence.

It would serve no good purpose for us to analyze and discuss separately the testimony of each of the other seven who did testify as to the facts. It is sufficient to say that we have thoroughly examined and compared it, and we do not feel, in view of the opinion of the Supreme Court in Chicago Union Traction Company v. Jacobson, 217 Ill. 404, that we can hold, as matter of law, that the plaintiff was guilty of negligence in attempting to cross the tracks when he did. In that case the Supreme Court used language entirely applicable, mutatis mutandis, to this:

“Appellee * * * testified that when he turned his team to cross the track the car was about one hundred feet east of him, and that he thought he had time to get across the track. He was boupd to exercise a reasonable judgment in view of all the circumstances, and the court in passing on the motion was required to consider all the evidence, including the distance of the car from the wagon, the rate of speed, and all the circumstances.
“We cannot say that in so considering it the evidence necessarily led to but one conclusion, but we think that the question, whether under all the circumstances, appellee believed, upon reasonable grounds, that he had time to get across the track before the car would reach him, was proper to he submitted to the jury.”

One matter not mentioned in the argument of either party, we deem of some significance in relation to this question. The assumption seems to be made in the arguments that there was nothing that could obstruct the view on West Monroe street between Desplaines street and the driveway, unless it was the trolley poles, the effect of which is undoubtedly properly characterized by the appellant as insignificant. It is true that in the cross-examination of the plaintiff the following colloquy between him and counsel for defendant occurred :

“Q. The moment you got to the edge of that building you looked down to the west first? A. Yes.
Q. And you saw everything was clear down to Halsted street?' A. Yes.
Q. And then you looked around the edge of that building up to the east and you saw everything clear up to Desplaines street; is that right? A. I saw no car there—there was no street car there at all.
Q. If there had been a car would you have seen it? A. I guess so.
Q. Those trolley poles were not in your way? A. I don’t know, I didn’t see the car, anyway.
Q. There was no car there when you came out? A. No. When I saw the car first my team was out on the north track.
Q. Now, having seen that the way was all clear on both sides of it, you started up this slight incline to the street, did you? A. Yes. It was only a very small incline.”

But when the motorman of the car, Joseph Kelly, was on the stand, he was interrogated by counsel for defendant in re-direct examination thus:

“Q. At the time this occurrence took place, what was the condition of the locality there on Monroe street with reference to any other teams besides the one which this man who was hurt was driving? A. All kinds of teams.
Q. Were there other teams on the street there? A’. Yes, sir; plenty of them.
Q. On Monroe street? A. Yes, they are always on the street at that time in the morning.
(The statement about “other times” was stricken out.)
Q. There were other teams on the street at this time? A. Yes, sir.”

The object of this part of the examination was apparently to negative the hypothesis of negligence on the part of the motorman, but it is equally important in its bearing on the alleged contributory negligence of the plaintiff. It is quite apparent that if many wagons were either standing by the curb or moving along the northerly half of West Monroe street between the driveway and Desplaines street it might very easily be impossible for the driver of the wagon to see the car so soon as he otherwise would have done, and so, although “exercising a reasonable judgment in view of all the circumstances,” in the language of the Jacobson ease, he might have driven on the track when, if he had unobstructed vision, he would not have done so. Under such circumstances, it would be true, as suggested by defendant’s argument, that by looking east “the driver of the team, as soon as his wagon seat got beyond the line of the bay, could see an approaching car clear to Desplaines street, 471 feet distant.” The duties and relations of both motorman and driver would be thus affected.

And as we think the question of contributory negligence in this case was for the jury, so do we think was the question of the negligence of the defendant. As we have before indicated, the distance of the car from the wagon and team when it was first possible for the motorman to see them, the speed of the car at that time and afterward, the promptness, or want of it, with which the reverse was applied, the question whether the force of the impact (owing to the speed of the car), or the operation of the reverse, caused the “rebound” or “sliding back,” the degree of extra care required by the condition of the rails, and 'the frequent use of the driveway by long wagons, were all debatable matters for the jury. The case may have been a close one, but we do not feel justified in interfering with their decision.

As all the instructions offered by defendant were given and none were given which are objected to by it, there can be no question raised on them. It is, however, claimed that the counsel for plaintiff in argument stated an erroneous proposition to the jury, and claimed it to be a rule of law governing the case, and that, objection being made by defendant, the court overruled the objection, and that this statement of the law became in effect an instruction from the court to the jury as to the law. To this is cited Chicago Union Traction Company v. Lauth, 216 Ill. 176. We do not think the cases are parallel. The remarks alluded to in the Lauth case were made in the-closing argument, when defendant had no chance to reply, and on objection the court said he did not think there was anything wrong in the argument. In the present case the remarks complained of were made in the opening argument, and counsel for defendant in error are right, we think, in saying that the court by its ruling did not expressly or by implication announce any opinion as to whether or not tire proposition stated by counsel was the law.

When counsel stated a proposition as the law absolutely to the jury, the judge sustained an objection on the ground expressly stated by him in the presence of the jury, that counsel had a right only to say what he believed the law to be, and that the court in the written instructions would state what the jury must take the law to be. This was correct. Vocke v. City, 208 Ill 192.

It was not until objection was made to counsel for plaintiff stating what he believed to be the law, that the objection was overruled. There was no error in all this, nor any reason why, if the defendant’s counsel’s opportunity in his succeeding argument to tell the jury what he believed the law to be on the proposition involved, did not satisfy him, he should not have appealed to the court for an instruction on the very point. As we view the matter, it is needless for us to discuss the rightfulness or wrongfulness of the proposition made by the plaintiff’s counsel. It is not involved in the question raised.

The damages are complained of as excessive. We think that proper questions for .the jury to pass on were whether the plaintiff was permanently injured, and whether the abscess in the ear the following year was the result of the injury received by the accident. Counsel for defendant argue strongly against it, but it is to be presumed that they also did so to the jury, who were properly the persons to decide when doctors disagreed. If the testimony of Dr. Shea and Dr. Cunningham was trustworthy, and their opinions properly received by the jury as the test with which to measure the damages, we cannot say they were too large.

Nor do we think that the opinions of either physician were so shown to be so based on subjective symptoms as to exclude them even under the most rigorous of the rules which are deduced from the cases involving this matter. Nor, under the opinion in the Jacobson case (supra) do we consider the question and answer in relation to the plaintiff’s belief that he could cross the track in safety objectionable—certainly not reversible error.

The other rulings complained of do not, we think, need discussion.

The judgment of the Superior Court is affirmed.

Affirmed.


author: Mr. Justice Smith

text:
    Mason Lumber Company v. Paxton & Lightbody Company.
    Gen. No. 13,320.
    Vendor and vendee—when latter liable for full purchase price. Held, that the vendee in this case, having accepted the merchandise in question from the vendor, was liable for the full purchase price thereof to such vendor, notwithstanding the vendee may actually have paid something upon account of the same merchandise to another party from whom he had supposed the delivery to have proceeded.
    Assumpsit. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1906.
    Reversed and remanded.
    Opinion filed October 18, 1907.
    Atwood, Pease & Loucics, for appellant.
    Joiiw E. Waters, for appellee.
   Mr. Justice Smith

delivered the opinion of the court. Appellant brought suit in assumpsit against appellee in the Superior Court to recover for two carloads of lumber sold and delivered by appellant to appellee. The declaration filed was the common counts, to which was filed a plea of the general issue. The jury returned a verdict for the defendant and judgment was entered on the verdict.

The record shows no substantial controversy of fact. It appears that in March, 1903, one Hemphill, an agent of James A. Carey of Chicago, who was doing business under the name of the Yellow Pine Lumber Company, called at the office of appellant and gave it an order in writing for a large amount of lumber to be shipped to appellee at Chicago, Illinois. The invoices and bills of lading for the lumber were to be sent to Carey, Chicago, who, he said, would remit to appellant on receipt of the same. Nine dollars per thousand feet was the contract price. This was also the fail-cash market value. Appellant shipped one carload of the lumber. A remittance for the same was not made according to the contract. Appellant then refused to ship any more lumber on the contract and so informed Hemphill. Hemp-hill then made a new agreement with appellant, directing it to send the balance of the lumber, with the bills of lading and invoices, to appellee. This was done by changing the directions on the original order, appellant accepting the new order.

On this order appellant shipped two carloads of the lumber to appellee. The original bills of lading for the two carloads were attached to the invoices for the same and were mailed to the National Bank of Commerce, Hattiesburg, Mississippi. At the bottom of each invoice was written the words: “Pay to National Bank of Commerce, Hattiesburg, Mississippi. Mason Lbr. Co.” The invoice for each car, attached to the bill of lading therefor, was sent by the national Bank of Commerce to appellee, requesting payment. The hank some time afterwards received a reply from appellee stating that it had paid the money to James A. Carey. Appellee delivered the bills of lading to the railroad company and received the lumber. Appellant, not having received payment for the lumber,' brought this suit to recover the purchase price.

The position taken by appellee is that Hemphill was not its agent; that he was the agent of Carey, of whom it had ordered the lumber, and that the invoices and the directions thereon to pay the bank were not sufficient notice to it that the lumber was shipped by appellant, and that the purchase price thereof was to be paid to the bank as the agent of appellant.

Under the facts shown by the record this contention cannot be sustained. In our opinion the invoices and the directions indorsed thereon by appellant gave appellee full notice that the lumber was sold and shipped by appellant and that payment therefor was to be made to the bank as its agent. Appellee, upon receiving the invoices and bills of lading, had the right to accept the lumber and pay for it as directed on the invoices, or to refuse to take the lumber. It accepted the lumber from appellant, and is liable to appellant for the value of the lumber.

The third instruction given by the court at the request of appellee is as follows:

“If the jury believe from the evidence defendant paid to J. A. Carey any money as payment on account of the purchase from said Carey of the lumber in question, under an agreement to buy the same from Carey, without full notice and knowledge of the purchase of said lumber by said Hemp-hill on said defendant’s account, and that said Hemphill or plaintiff neglected to furnish defendant with full and requisite information of the purchase of said lumber by Hemphill as the agent of defendant, and that defendant had no such information or an opportunity to disapprove of the act of said Hemphill before he paid said Carey said sum of money, then the plaintiff cannot recover herein to the amount of the payments you believe defendant so made to Carey on account of the shipment of said lumber.”

Error is assigned upon this instruction.

The instruction told the jury that appellee’s liability for the lumber depended upon full notice and knowledge of the purchase of the lumber by Hemphill on appellee’s account. This is not the law of this case and was misleading. The jury could not do otherwise under this instruction than find for the defendant, appellee, for the record shows that appellee had no knowledge of Hemphill or what he had done in the purchase of the lumber. Appellee had full notice, however, that appellant had shipped the lumber and that it was directed to pay the bank therefor if it accepted the lumber. The instruction tells the jury that notice of .facts to appellee sufficient to put it on inquiry was not sufficient, but that it must have “full notice and knowledge.” The giving of the instruction was reversible error.

The court also erred in refusing the instructions requested by appellant. We think they presented the law of the case and should have been given.

For the reasons given the judgment is reversed and the cause is remanded.

Reversed and remanded.


author: Mr. Justice. Smith

text:
    Grand Lodge of the Ancient Order of United Workmen of the State of Illinois v. Agnes Oetzel.
    Gen. No. 13,353.
    1. Fbatebnal benefit society—what by-laws binding upon member. A by-law adopted by a society after a member’s admission is binding upon such, member where in his application for membership he has agreed that he will comply with all the laws and regulations which then were or might thereafter be enacted by the society.
    2. Fbatebnal benefit society—how contract of insurance construed upon question of forfeiture. A contract of insurance made by a fraternal benefit society is, upon a question of forfeiture, liberally construed in favor of the assured:
    3. Fbatebnal benefit society—by-law with respect to members engaging in saloon business construed. Held, that a particular bylaw upon this subject was intended to prevent members not already engaged in the saloon business from entering into the same, but that it did not apply so as to preclude re-engagement therein of one temporarily forced to abandon his saloon business, in which he was engaged at the time of the adoption of the by-law.
    Assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1906.
    Affirmed.
    Opinion filed October 18, 1907.
    Statement by tlie Court. Appellant, a fraternal insurance society organized under the laws of Illinois, issued to Justus Oetzel a beneficiary certificate dated September 24, 1892, for $2,000. Appellee, his wife, was named as beneficiary therein. In his application for membership, in the appellant order, Oetzel agreed that he would comply with all the laws and regulations which then were or might thereafter be enacted by the appellant, as an express condition upon which he was to be entitled to participate in the beneficiary fund of the order.
    On May 3, 1899, the appellant order enacted a by-law in the following words and figures:
    “Article II—Membership.
    Qualification for Membership.
    Section 1. No person shall be admitted to membership unless he be a white male person of the full age of eighteen, and not over the age of forty-five years, of good moral character, able and competent- to earn a livelihood for himself and family, and a Believer in a Supreme Being, the Creator and Preserver of the universe. Ho person shall be admitted to membership who is engaged in the sale, by retail, of intoxicating liquors as a beverage. Any member of this Order who shall, after May 15, 1899, enter into the business or occupation of selling, by retail, intoxicating liquors as a beverage, shall stand suspended from any and all rights to participate in the Beneficiary Fund of the Order, and his Beneficiary Certificate shall become null and void from and after said date of his so engaging in said occupation, and no action of the Lodge of which he is a member, or of the Grand Lodge or any officer thereof, shall be necessary or a condition precedent to any such suspension. In case any assessment shall be received from a member who has thus engaged in such occupation after May 15, 1899, the receipt thereof shall not continue the Beneficiary Certificate of such member in force, nor shall it be a waiver of his so engaging in such occupation.”

      At the time the certificate was issued Justus Oetzel was engaged in conducting a saloon in the city of Chicago. He continued in this business at various places in the city of Chicago until December, 1899, when his saloon was closed out and he did not conduct a saloon business again until about the end of April, 1900, when he opened a saloon at 511 North Ashland avenue, Chicago, and continued in the business there until his death on November 9, 1900.
    On June 13, 1900, the Lafayette Lodge of the appellant order, of which Oetzel -was a member, entered an order suspending him from the order, upon receiving information that he w7as engaged in the liquor business. Tenders of payment of all dues after the suspension were made on behalf of Oetzel, but were -refused.
    Notice of the death of Oetzel was given to appellant, and upon its refusal to pay the amount named in the benefit certificate, appellee instituted this suit in the Circuit Court against appellant upon the certificate and recovered a judgment for $2,506.95, to reverse which this appeal is prosecuted.
    John P. Ahrens and T. P. Monahan, for appellant.
    Wells, Bowersock & Stilwell, for appellee.
   Mr. Justice. Smith

delivered the opinion of the court.

The question presented by the record is, whether Oetzel violated the by-law of the order by conducting a saloon business at No. 511 North Ashland avenue, on and after May 23, 1900, and stood suspended from membership and from all rights and benefits as a member at the time of his death by virtue of that fact, and the action of the lodge suspending him.

We entertain no doubt that under the application for membership and the certificate issued to deceased the subsequently enacted by-law became a part of the contract between appellant and deceased. Moerschbaecher v. Supreme Council Royal League, 188 Ill., 9; Supreme Lodge K. of P. v. Kutscher, 179 id., 340; Supreme Lodge K. of P. v. Trebbe, 179 id., 348; Fullenwider v. Royal League, 180 id., 621.

In considering the facts shown by the record, and the question of forfeiture under this contract, the policy or contract is to be liberally construed in favor of the assured. In Grand Legion Select Knights v. Beaty, 224 Ill., 346, it is said at page 350: “The terms of the contract are entirely of the insurer’s own making. It is axiomatic in the law of insurance that the contract shall be liberally construed in favor of the insured and strictly construed against the insurer, and where two interpretations, equally reasonable, are possible, that construction should be adopted which will enable the beneficiary to recover.”

The question then is, shall the contract be so strictly construed that the forced closing up of the business of the deceased at No. 2 Clarkson court in December, 1899, and the consequent suspension of his business shall be deemed a going out of the saloon business at that time, and the opening of a saloon in the following May at 511 Ashland avenue a new entry into the business, or shall it be considered, under a broader and more liberal construction of the contract, a temporary suspension of the business and a resumption thereof at another place.

The by-law in question as amended disqualifies for membership in the order all persons “engaged in the sale by retail of intoxicating liquors as a beverage,” who were not members at the time the amendment became operative. It did not affect the memberships of those who were engaged in that business at the date of the adoption of the amendment. But it provided that any member of the order who should after May 15, 1899, enter into said business, should stand suspended from any and all rights of participation in the beneficiary fund of the order, and that his certificate should become null and void from the date of his engagement in the business. Thus the intention and purpose of the amendment, as expressed by its provisions, was not to forfeit the rights or beneficiary certificates of members who were engaged in the sale by retail of intoxicating liquors as a beverage at the time it went into effect. The intention is expressed, however, that if any member not engaged in the business changes his business and engages in the business mentioned in the by-law, after May 15, 1899, that act would work a forfeiture of his beneficiary certificate and all rights under it. We find no language in the amended by-law which conveys the purpose and intention, or which can be construed to mean that if a member engaged in the retail liquor business is forced to suspend that business for a time, either by ill-health or financial or other difficulties, and afterwards within a few months resumes his business without having abandoned it and taken up some other vocation, he would thereby suffer a forfeiture of contract and all rights under it. To read into the language of the by-law such a provision or purpose would be construing the contract in favor of the insurer and against the assured. To so construe the contract would violate the rule of construction announced in the authorities cited above.

The evidence in the record shows, without contradiction or controversy, that during the last year and a half or two years of the life of the deceased he was seriously ill and at times incapacitated for any business. As a natural result of this ill-health his business at Clarkson court was closed up and the place was taken possession of by the brewery with which he was dealing. He engaged in no other business thereafter until the following April or May. Under the circumstances it may well be inferred that he was unable between December 1899 and April or May, 1900, to re-establish his business under satisfactory conditions. The evidence fails to show that he intended to abandon it and engage in another occupation. We think, therefore, that when he reopened a saloon at No. 511 North Ashland avenue it was not entering into the occupation of selling by retail intoxicating liquors as a beverage within the meaning and intent of the by-law.

Finding no error in the record the judgment is affirmed.

Affirmed.


text:
    Chicago City Railway Company v. Edward Roberts, Admr. of the Estate of Walter Krueger, deceased.
    Gen. No. 13,379.

      Negligence—when evidence does not establish, resulting in injury at street intersection. Held, that the evidence in this case did not establish negligence upon the part of the servants of the traction company which resulted in the death of the plaintiff’s intestate.
    Baker, P. J. dissenting.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Coolt County; the Hon. Ben. M. Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1906.'
    Reversed and remanded.
    Opinion filed October 18, 1907.
    Statement by the Court. This action of case was brought by appellee under the statute to recover damages for the next of kin of Walter Krueger, whose death was caused by being struck by one of appellant’s electric street railway cars near the intersection of Wentworth avenue and Twenty-fourth street in the city of Chicago, during the evening of April 2, 1903.
    The declaration of two counts avers in the first count that while said Walter Krueger was walking across the tracks of appellant on Wentworth avenue near said intersection, appellant by its servants so carelessly, negligently and improperly drove and managed its car that the car struck him and threw him down upon the pavement and under the car and he was thereby killed.
    The negligence of appellant averred in the second count is substantially the same as in the first count, and in addition thereto it is alleged that the car was “running at an unusual, unwarranted, reckless and high rate of speed, ringing no hell nor gong, displaying no light and giving no warning or alarm of any kind of said car’s approach.”
    The record shows that Wentworth avenue lies north and south; that appellant’s railway on that street consists of two tracks, north-hound cars running over the easterly and southbound cars running over the westerly. Wentworth avenue is intersected at right angles by Twenty-fourth street. North of Twenty-fourth street is an alley opening into Wentworth avenue from the west, and the next street north is Twenty-third place running into Wentworth avenue from the west but not crossing it.
    The accident occurred about 1:30 o’clock in the evening. It was dark, and the place of the accident was not well lighted. Walter Krueger was nearly eight years old and his sister who was with him was ten years old. They were living with their parents on Twenty-fourth street west of Halsted street. On the evening in question they left their home to go to the Burr Mission, located at Wentworth avenue and Twenty-third street on the east side of Wentworth avenue. During the year next preceding the accident they had been accustomed to go to that mission every Thursday evening. The sister testified that she had crossed the Wentworth avenue street car tracks “lots of times with Walter and knew that those were street car tracks, and that cars were running on them.” She testified that Walter attended the Harrison public school, about a block from his home, a year and a half preceding the accident.
    From the testimony of the girl it appears that when she and Walter reached the northwest corner of Wentworth avenue and Twenty-fourth street, and when they had stepped off the sidewalk, she looked both ways for a car and “I seen Walter look both ways for the car”; that she saw no car coming from the north, but that she saw one coming from the south about a block away from where they were, and that she knew it was coming on the east track. Thereupon they started diagonally northeast, hand in hand, to cross Went-worth avenue. Neither of them looked again in the direction of the car until they reached the railway track and jus't as they were struck by the north-bound car. This was at a point, according to her testimony, at least seventy-five feet north of Twenty-fourth street.
    The trial in the Circuit Court resulted in a verdict and judgment against appellant for $2,500.

      William J. IIynes, John E. Keiioe and Watson J. Ferry, for appellant; Mason B. Starring, of counsel.
    Forman A. Becic and Thomas F. Cronin, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The main question presented by the record and in argument is, whether the verdict and judgment are justified by the evidence. Does the evidence with all the inferences fairly and justifiably to he drawn from it show that appellant was guilty of the negligence averred in the declaration ?

There is some controversy in the evidence as to the point wdiere the accident happened. But the testimony on both sides of the case places it at a considerable distance north of Twenty-fourth street. The evidence shows it was a dark evening and that Wentworth avenue at this point was poorly lighted. The car itself was well lighted, and its electric headlight threw a light upon the street some distance ahead of the car.

We think from the testimony of appellee’s witnesses that the car was not going at a high, reckless or immoderate rate of speed and that it stopped after the accident occurred south of Twenty-third place. According to the testimony of the witnesses for appellant the car was running about ten miles an hour, which was about the usual and normal speed at that place.

The evidence on behalf of appellee is silent as to any negligence of the motorman in the management and operation of the car. Morland and Polcaster, who were called as witnesses on behalf of appellee and who claim to have been on the front platform of the car at the time of the accident, do not testify to any act of negligence on the part of the motorman.

The evidence affirmatively shows, without any conflict, that the car and its stopping appliances were in good repair and working order; and that the motorman promptly and effectively employed the stopping appliances as soon as he became aware of the presence of the children and their intention to cross the track, effecting what one of the witnesses called an “emergency stop.”

The motorman of the car, Sanford, testified that the street was clear of traffic and teams, and that just before he reached Twenty-third place two children appeared near the southbound track running as fast as they could, the boy a little in advance of the girl and a little closer to the car. The children were then about thirty feet from the car and in front of the Marie Chapel on the west side of the street at the third door from the corner of Twenty-third place. He at once reversed his machinery, rang the bell and sanded the track. The deceased did not appear to have seen the car. The little girl saw it and put out her hand, but she was running so fast she could not stop. The car struck them and they both fell on the fender. In this statement of the accident the motorman is substantially corroborated by the witness Meslein, who was on the front platform of the car, and by other witnesses.

Our conclusion from the evidence is that it does not show that appellant was guilty of the negligence averred in the declaration, and that the verdict and judgment are not justied by the evidence and cannot be sustained.

The judgment therefore is reversed with a finding of fact.

Reversed.

Mr. Presiding Justice Baker dissenting.


author: Mr. Presiding Justice Holdom

text:
    John J. Dunn et al. v. Robert E. Burke.
    Gen. No. 13,107.
    Trust deed—what does not render void. If a trust deed recites a consideration, but in describing the notes secured does not specify their amount or amounts, parol evidence is admissible to supply the defects, and the trust deed is not void.
    Foreclosure. Error to the Circuit Court of Cook County; the Hon. Julian W. Mack, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed October 28, 1907.

      E. W. Adkinsoh, for plaintiff in error.
    Frank L. Ciieney, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The writ of error here sued out brings before us for review the proceedings in the foreclosure of a trust deed in the nature of a mortgage of certain real estate situate in Cook county, so far as the same affects the claimed rights of the plaintiff in error, John J. Dunn, as a creditor of the mortgagor, Catherine Bagley, now deceased, whose claim has been allowed against the estate of Catherine Bagley. in the Probate Court of Cook county. The contentions rest within a very narrow compass. In their finality they resolve themselves into the one question, which is, does the case of Bullock v. Battenhousen, 108 Ill., 28, on principle both in law and fact control the decision which should be here rendered.

In the trust deed in evidence in the foreclosure suit the consideration is recited as being the sum of twelve hundred dollars, and the indebtedness is set forth in the following words:

“Whereas the said grantors herein are justly indebted upon their four promissory notes hearing even date herewith, payable to the order of themselves and by them endorsed and delivered, and due and payable on or before one year after the date thereof, with interest thereon at the rate of......per cent per annum, payable semi-annually as follows, to-wit: On or before the 6th day of November, A. D. 1898, and the 6th day of May, A. D. 1899.”

There were introduced and received in evidence before the master, upon the hearing, four notes, each for the sum of three hundred dollars, with interest at seven per cent per annum, which in all respects, except as to the amounts and rate of interest, were in accord with the attempted descriptive recitation of them in the trust deed.

We think that the case of Bullock v. Battenhousen, supra, is clearly distinguishable from the case before us, and that this case is more analogous to the doctrine announced in Babcock v. Fisk, 57 Ill., 327, and Farrar v. Payne, 73 ibid. 82.

The decision of this court in Battenhausen v. Bullock, 11 Ill. App., 665, the reasoning of which was in terms adopted by the Supreme Court in its opinion upon further review, was grounded upon the fact that “the deed of trust contained no statement of the amount of the indebtedness thereby sought to be secured; nor does it contain any language from which the amount can be ascertained or inferred. After naming the parties the deed recites as follows: ‘Whereas said Eben F. Bunyan has made his promissory note bearing date the 11th day of June, A. D. 1872, payable to the order of John II. Bullock five years after date, with interest at the rate of 10 per cent per annum.’ ” There was no reference in any part of the trust deed in the Bullock case to the amount of any indebtedness by way of consideration or otherwise. On its face the trust deed was a nullity and clearly created no lien, and was not entitled under the statute to be received for record. While the Bagley trust deed was deficient in not setting forth with due particularity the amount of the four notes in the description of them, yet we are inclined to the opinion that the consideration of twelve hundred dollars recited in the trust deed was sufficient to put all persons acquiring interests in or claims against the real estate conveyed upon notice that the trust deed at least inferentially created a lien to the extent of the recited consideration until the contrary could be made to appear by an examination of the notes insufficiently described in that instrument. In conveyances of the nature of the trust deed here challenged the indebtedness secured is by custom prevailing in this jurisdiction uniformly identical with the amount of the expressed consideration. The failure to recite the amount of the four notes was so clearly a mistake that in view of the other recitations of the trust deed, parol evidence was properly permitted to supply such evident defect. The bona fides of the transaction is in no way attempted to be impeached. In this respect the case materially differs from the Bullock case, supra-. Ho party to this record has been misled to his injury by any omission, the fact in relation to which could not have been readily ascertained upon due inquiry. The claim of plaintiff in error Dunn proven against the estate of Catherine Bagley in the Probate Court creates no lien upon the property conveyed by the Bagley trust deed paramount to the rights of defendant in error as the lawful holder of the evidence of indebtedness secured thereby. Such claim is subject and subordinate thereto.

In the decree of the Circuit Court there is no error, and it is therefore affirmed.

Affirmed.