text:
    Claude D. Price, Appellee, v. Pan-American Motors Corporation, Appellant.
    Assignments, § 1

      —when contract is not assignable. A contract for film advertising between a corporation and an individual whereby the latter is authorized to alter the copy submitted by the corporation in order to produce the most advantageous publicity effect and to utilize the suggestions to the limits and possibilities of “Filmad,” entitles the corporation to rely upon his judgment, taste and skill in utilizing such suggestions and cannot be assigned by the individual to a third person without the corporation’s consent, and no recovery can be had against the corporation by- one to whom such unauthorized assignment has been made.
    Appeal from the Circuit Court of Macon county; the Hon. John H. McCoy, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and remanded with directions.
    Opinion filed April 27, 1920.

      James T. Whitley, John R. Fitzgerald and John A. Walgren, for appellant.
    Wiley & Morey, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

T. R. Shaw, of the City of Decatur, Illinois, doing business under the name of “The Shaw Film Advertising Service,” entered into a written contract with appellant June 11,1917. By this contract Shaw agreed to display film advertisements on the screens of 7 different theaters in the City of Decatur for a period of 49 weeks, said advertisements to be substantially in accordance with copy submitted by appellant. The contract contains the following provision: “It is further agreed that the Company may, if it deems necessary, alter copy submitted to produce the most advantageous publicity effect and to utilize the suggestions to the limits and possibilities of Filmad. No objectionable matter will be accepted and wording will be limited to an average of not over (1) word per foot.” In consideration of the service therein referred to, appellant agreed to pay Shaw $18.75 each week ¿3 advance.

It is averred in the declaration that the contract was carried out in accordance with its terms for a period of 19 weeks when said Shaw on or about January 26, 1918, transferred and assigned'his interest in said contract to appellee; that appellee thereafter was ready, willing and able to carry out the require-, ments of the, contract but that appellant without cause refused to further carry out the terms of the same or to furnish copy or to pay appellee the sum of $18.75 for each of the remaining 30 weeks.

Appellant filed a general and special demurrer to the declaration. The special cause of demurrer is that no privity of contract is shown between the parties to said cause, nor assumption of any obligation on the part of appellant to appellee, nor any breach of any obligation whatsoever. The court overruled the demurrer and entered a judgment nil elicit in favor of appellee and against appellant for the sum of $419.70 and costs.

By the terms of the contract, Shaw could alter the copy submitted to produce the most advantageous publicity effect and to utilize the suggestion to the limits and possibilities of “Filmad.” This clearly contemplates the performance of the personal services of Shaw and involves the exercise of knowledge, taste and skill. It is a well-recognized rule of law that such contracts are not assignable. In the case of Sloan v. Williams, 138 Ill. 43, it was held: “Engagements for personal services requiring skill, science or peculiar qualifications may not be assigned. (Devlin v. Mayor, 63 N. Y. 8.) A party, who thus agrees to use his personal skill and knowledge, and has been contracted with by reason of the trust and confidence placed in him, personally, cannot, while the agreement is still executory, substitute another in his place by assignment, in order to perform the service, without the consent of the other contracting party.”

In this case appellant contracted with Shaw and had a right to rely upon his judgment, taste and skill in utilizing and displaying the suggestions submitted in order to produce the most advantageous publicity effect and Shaw could not, without the consent of appellant, assign the contract to appellee and thereby create a privity between the latter and appéllant. Eastern Advertising Co. v. McGaw, 89 Md. 72; 5 Corpus Juris 882, 879; 2 Am. & Eng. Encyc. of Law 1036.

The court erred in overruling the demurrer to .the declaration and the judgment is reversed and cause remanded with directions to sustain the demurrer.

Reversed, and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Eldredge

license: Public Domain

text:
    Martin Flenner and Tolbert Flenner, trading as M. Flenner & Sons, Appellees, v. Capital Live Stock Insurance Company, Appellant.
    1. Insurance, § 122

      —when application is not part of contract. The recital of an insurance policy that it is issued “in consideration of the stipulation herein named and of the warranties made in the application for this insurance and of the further consideration of $180 premium,” does not make the application a part of the policy.
    2. Insurance, § 209*—when statements in application are warranties. An application for insurance is not a part of the policy so as to render the statements therein warranties, unless the language of the policy itself so clearly makes the application a part thereof as to preclude any other reasonable construction.
    3. Insurance, § 209*—what statements in application are mere representations. Statements contained in an application for insurance which are not a part of the policy are not warranties but mere representations.
    4. Insurance, § 209*—when statements in application are representations. When an agent fills out an application for insurance without inquiry, merely presenting the application to the insured for his signature, the answers to the questions in the application are not warranties.
    5. Appeal and error, § .1414*—when finding as to death of animals insured is conclusive. In an action to recover on a live stock insurance policy in which the evidence as to the cause of the animal’s death and the time wheh it became sick was conflicting, held, that a finding that it did not die of a disease contracted before the policy was delivered would not be disturbed.
    6. Insurance, § 128*—what is effect of provision as to notice of sickness of live stock. That an animal was constipated the night before he died is not notice to the owner that the animal was sick, within the meaning of the provision of a live stock insurance policy requiring insured to give the insurer notice in case of the sickness of the animal and to immediately secure the services of a veterinary.
    Appeal from the Circuit Court of Coles county; the Hon. John H. Marshall, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed April 27, 1920.

      Thomas J. Graydon, Edward C. Craig, Donald B. Craig and Fred H. Kelly, for appellant.
    A. C. and Ben F. Anderson, for appellees.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Appellees sued appellant in an action of assumpsit upon a policy insuring a hog of appellees for the sum of $1,500, and obtained a verdict and judgment in the court below- for $1,205. The declaration consists of one special count based upon the policy and the common counts. Appellant filed a plea of the general issue to all the counts, which is designated as the first plea.

The second plea avers a violation of a condition of the policy as follows: “This policy shall not cover loss by death from disease contracted or injury which occurred, prior to its delivery to the insured and the payment of the premium.”

The third plea avers a violation of the following condition: “In case of sickness or injury of any animal covered by this policy, the insured shall giye notice thereof by telegram to Qaius W. Hubbard, 175 W. Jackson Blvd., Chicago, Illinois, and the company shall not be liable for loss by death if the insured fails to give such notice.”

The fourth plea avers that in said policy it is provided that it is insured in consideration of the warranties contained in the application; that among such warranties it was by plaintiff warranted that at the date of said application the insured animal was then and there in excellent bodily condition, which warranty was false, in that said animal at such time was suffering from swine plague or other serious diseases.

The fifth plea avers a false warranty in the application in that said insured animal had never been sick or afflicted with.any disease or injury at any time.

The additional plea avers that it is provided in said policy that it shall not cover loss by death if, during the term of said insurance, the animal shall become sick or injured' and the insured shall fail to immediately secure a licensed veterinarian to attend the same; that said insured animal had been sick 12 days before its death and that appellees did not immediately secure a licensed veterinarian to attend to said animal.

The issues tendered by the fourth and fifth pleas may be eliminated for two reasons: First, the policy recites that it was issued, “In consideration of the stipulation herein named and of the warranties made in the application for this insurance, and of the further consideration of $180.00 premium. ’ ’ This recital of the consideration for the policy does not make the application a part of the policy. An application for insurance is not a part of the policy so as to render the statements therein warranties, unless the language of the policy itself so clearly makes the application a part thereof as to preclude any other reasonable construction. Spence v. Central Accident Ins. Co., 236 Ill. 444. The statements made in the application therefore were not warranties but mere representations. Second, the hog in question had been .previously insured by appellant and when the policy was about to expire appellant’s agent took a new application to Tolbert Flenner, one of the appellees, to have him sign it for a new policy. When the agent arrived at Flenner’s farm he found that the latter was busy and he told Flenner that the questions were about the same as those in the old application and then filled in the answers to the questions himself. He did not read the questions to Flenner nor did Flenner read them. He wrote the answers in the new application from his memory of the answers in the other application and then handed it to Flenner who signed it. When an agent fills out an application for insurance without inquiry, merely presenting the application to the insured for his signature, the answers to the questions in the application will not be warranties. Hartford Life & Annuity Ins. Co. v. Gray, 80 Ill. 28; Johnson v. Royal Neighbors of America, 253 Ill. 570; Andes Ins. Co. v. Fish, 71 Ill. 620; Weisguth v. Supreme Tribe Ben Hur, 272 Ill. 541. In the case of Royal Neighbors of America v. Bowman, 177 Ill. 27, the court quotes the following with approval: “It is notorious that contracts of insurance are, on the part of the assured, entered into without the advice of counsel, and chiefly upon the representations of the agents of the insurer. Such agent is justly looked upon as the accredited agent of the company, in whom it has confidence and holds out as worthy of the confidence of its patrons. Furthermore, the assumption is perfectly natural that he knows just what information his principal desires and in what lan-. guage it may be best expressed, and human nature must be far different from what it is now before the average applicant for insurance can be taught that he must be deaf to the representations of the agent while he sharpens his comprehension and applies it to the careful scrutiny of the insurance stationery, which, even without the suggestion of the agent, it is impossible for him to regard as other than a mere ‘matter of form.’” The court then holds: “it was his (agent’s) duty to ascertain the actual facts about this risk, and his report to the company must, where no fraud or intent to deceive on the part of the applicant is shown, be conclusive upon it.”

In the fore part of October, 1918, this hog was exhibited at a swine show held at Cedar Rapids, Iowa. It returned from this show on the 10th or 11th of October. On October 14, the application for the policy was signed by appellees and the policy was issued October 16. The hog died on the morning of October 29. The second plea presents the issue whether the hog died from a disease contracted prior to the delivery of the policy to appellees. There is no direct evidence that the hog was actually sick prior to the delivery of the policy. To sustain this plea appellant introduced proofs to show that the hog was vaccinated at Cedar Rapids and also again after its return, but the proofs also show that it was customary to treat all hogs in this manner when they were used for exhibition purposes at stock shows. Two officers of appellant testified also that one of the appellees admitted to them, after the hog had died, that it had been sick at Cedar Rapids. This admission is denied and the question of the veracity of the witnesses on this point was for the jury to determine. Five veterinary surgeons gave their expert opinions as to the cause of the hog’s death. Two of these held a postmortem on the body of the hog but no two of them agreed as to what disease caused the hog’s death. One of the experts who made the post-mortem examination testified that in his opinion the hog died of swine plague, of which he had probably been sick two or three days but that he also thought the hog had been afflicted with anemia and that the anemia might have extended over several months but that it would not affect the animal to any great extent and that the owner might not notice anything but a slight attack of constipation. Another expert testified that the hog probably died as a sequel of some infectious disease, such as hog cholera, swine plague, shipping fever or hemorrhagic septicemia, and that it probably took a month or more to develop the conditions found on the post-mortem examination. Another expert testified that he did not think from the conditions shown by the post-mortem examinations that the hog had had anemia but his conclusion was that it died from fatty degeneration of the liver and from a sequel of an infectious disease, and he thinks the hog must have shown visible symptoms of illness for 2 or 3 days, or that the diseased condition must have existed for a month or more. Another expert testified that in his opinion the hog died from atrophy of the heart which disease might have existed for an hour or for five minutes. The other veterinary surgeon who assisted the first-mentioned expert in making the post-mortem examination testified that he had come to the conclusion that the hog had died of swine plague and that it had not been sick for over 48 hours. The postmortem was held at night by the aid of the lamps of an automobile and two or three lanterns. It is claimed that the above testimony proves conclusively that this hog had been afflicted with some kind of a disease when the policy was delivered. The judgment of the jury upon this mass of conflicting conjectures will not be disturbed.

It is also contended that the proofs sustain the third plea. These proofs are as follows: When one of the appellees took the hog out into the yard to exercise it the night before its death he noticed that it did not have a movement of the bowels, which was customary at such times, and that he went to a veterinary surgeon to procure a cathartic but which he did not administer to the hog that night. The next morning when he took the hog out to exercise it in the yard it ran around the yard for about 30 minutes when it laid down by the fence and died. It is conceded' that if appellees had no notice that the hog was sick until it was turned out in the yard that morning, then they were excused from sending immediate notice of its illness on the ground of insufficient time to do so before the hog died, but it is urged that appellees knew he was sick the night before when they discovered that it was constipated. We know of no authority which holds that an occasional constipation of an animal is a sickness within the contemplation of an insurance policy.

The proofs in this record also fail to sustain the additional plea. There was no reversible error in the giving or refusing of the instructions.

The judgment of the circuit court is affirmed.

Affirmed.


text:
    Sterling P. Adams, Appellee, v. Orval A. Pendarvis, Appellant.
    1. Frauds, statute oe, § 72

      —what memorandum is sufficient to satisfy statute of frauds. In an action to recover damages for the breach of an alleged contract for the sale of land, where plaintiff gave his check to defendant and defendant signed a memorandum thereon which recited: “Received the within check as part payment on my 80 acre farm in Sciota Township for the sum of thirteen thousand which I have sold to S. P. Adams [plaintiff],” such check and memorandum constitute a sufficient written memorandum to satisfy the requirements of the statute of frauds.
    2. Vendos and purchaser, § 4*—what constitutes valid, sale of real estate. An indorsement on a check signed by the payee of the check which recites that the check is received as part payment on a certain farm of payee which the payee has sold to the signer of the check for $13,000, contains every element necessary to constitute a valid contract for the sale of real estate.
    3. Vendor and purchaser, § 70*—when contract of sale is to be performed. Where a contract for the sale of real estate specifies no time for its completion, the law will imply that it is to be performed in a reasonable time.
    4. Contracts, § 300*—what constitutes reasonable time for performance of contract. What will be a reasonable time for the performance of a contract in which no time is specified is a matter of proof in all the conditions and circumstances that may surround the case.
    5. Vendor and purchaser, § 351*—when evidence does not show unwillingness of purchaser to perform. In an action at law to recover damages for defendant’s breach of his contract to convey his farm to plaintiff, that plaintiff insisted that defendant give him a deed signed by defendant and his wife, though the contract contained no stipulation that defendant’s wife should join in the deed, is not sufficient to show that plaintiff was unwilling to perform according to the terms of the contract.
    6. Vendor and purchaser, § 74

      —when defense of purchaser’s failure to perform, is waived. In an action at law to recover damages for defendant’s breach of a contract to convey his farm to plaintiff, the defense that plaintiff did not offer to perform within a reasonable time is waived where, each time that plaintiff offered to perform, defendant made a different excuse for not performing and, at no time after the execution of the contract, tendered any deed or did any act towards performance, never at any time demanded payment of the purchase price an'd never claimed a right to refuse the conveyance on the ground of plaintiff’s failure to offer to perform within a reasonable time.
    7. Vendor and purchaser, § 343*—what is measure of damages in case of breach of contract. In an action at law to recover damages for breach of a contract to convey land, the measure of damages is the increased value of the land, if any, at the time of the breach of the contract, above the contract price.
    Appeal from the Circuit Court of McDonough county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the October term, 1919.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 27, 1920.
    O’Harras, Wood & Walker and Miller & Walker, for appellant.
    Lawyer & Hainline and Flack, Flack & Kerman, for appellee.

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

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Appellee brought his action in assumpsit against appellant to recover damages for the breach of an alleged contract for the sale of 80 acres of land situated in 'Sciota township, McDonough county, Illinois. The, jury assessed appellee’s damages at the sum of $2,000, and a judgment was rendered on this verdict.

The following reasons have been presented to us why the judgment should not be sustained: First, that there was no valid contract of sale entered into between the parties; second, appellee was not willing' to perform according to the terms of the contract; third, appellee did not attempt to perform within a reasonable time; fourth, the damages are excessive.

Appellant did not testify himself nor introduce any evidence on his own behalf, and the proofs therefore, in so far as they are competent, are uncontradicted. On September 12, 1917, appellee and appellant met on the street in the Village of Good Hope and had a conversation in the presence of the witness Allison, who was a banker in that town. As a result of this conversation the parties to this suit executed the following check and memorandum:

“S. P. Adams No. 1756

Dealer in Horses

Good Hope, Ill., Sept. 12, 1917

“Pay to the order of O. A. Pendarvis........$800.00

Eight Hundred ............................Dollars

S IP Adams

“To Good Hope State Bank

•Good Hope, Ill.

“Received the within check as part payment on my 80 acre farm in Sciota Township for the sum of thirteen thousand which I have sol’d to S. P. Adams.

O. A. Pendarvis.”

After appellant had signed the memorandum on the check he handed it to Allison with directions to hold it until he could get in and fix up the deed. A general conversation followed, the substance of which was that appellant would deposit a deed conveying the land to appellee with Allison, and appellee would thereupon place $5,000 with Allison and the latter would hold both the deed and the $5,000 until March 1, 1918, when appellee was to receive the deed and appellant the full purchase price for the property. Appellant also told Allison that he would bring in the old deeds for the purpose of having the latter draw up a deed taking the description of the land from the old deeds. About 6 weeks afterwards appellant brought his old deeds to Allison and told Allison that his wife’s name was Lena R, and Allison made a memorandum of this name on the envelope containing the old deeds. Allison told appellant that he would prepare the deed in a few days when it could be executed, but appellant never executed the deed. About a month after the contract for the sale of the land was made, appellee met appellant on the road north óf Good Hope and told him that he ought to get the deed and put it in the bank and appellant replied that be would. In the following January, appellee again met appellant at the home of one Charles Smith, and again asked him about fixing the deed and also about hauling some lumber from Swan Creek to build a house on the property for a tenant. Appellant replied that it would be all right but that he had hogs in there and to keep the gate shut. On March 1, 1919, appellee went to Good Hope and delivered his check for $12,200, payable to the order of appellant, to Allison, who was holding the original check for $800, and. directed Allison to deliver the checks to appellant when the latter left the deed for the 80 acres. Appellee had funds in the bank to meet the checks. Appellant did not appear at the bank on March 1, and appellee, on March 4, asked him over the telephone why he hadn’t been down to fix up the deal and appellant replied that he had made different arrangements and that he would come down the next day and fix it up some way. On March 6, appellee saw appellant 'in the City of Macomb on the street and told him he was going to sue him. Appellant said that there was a mortgage on the place and if appellee wouldn’t get in too big a hurry it would be all right, to which appellee replied that if that was all the matter he would wait a month, if appellant and bis wife would sign the deed. On March 8, appellee and his counsel saw appellant in the office of the latter’s attorneys and tendered him $13,000 in cash and requested a deed executed by appellant and his wife. Appellant refused to take the money or deliver the deed. The proofs also show that the 80 acres in question was the only 80 acre tract of land owned by appellant in Sciota Township.

It cannot be seriously contended but that the $800 check signed by appellee and the written indorsement thereon signed by appellant constitute a written memorandum sufficient to satisfy the requirements of the statute of frauds. Ullsperger v. Meyer, 217 Ill. 262, and cases cited therein. Every element necessary to constitute a valid contract for the sale of real estate is contained therein. No time for the completion of the contract is specified, but the law will imply that it was to be performed within a reasonable time and what would be a reasonable time would be a matter of proof under all conditions and ■ circumstances that might surround the case. Ullsperger v. Meyer, supra.

It is claimed that appellee was not willing to perform according to the terms of the contract for the reason that he was willing to pay the purchase money only on condition that he received a deed executed by appellant and his wife, while there is nothing in the contract stipulating that the deed should be executed by the wife, and the case of Bostwick v. Williams, 36 Ill. 65, is cited as sustaining this contention. This case does, in effect, hold that the inchoate right of dower is not an incumbrance, and that such a contract is satisfied by the execution of the deed by the vendor alone without a release of the dower right of his wife. This doctrine has not been approved or followed in later cases. In the case of McCord v. Massey, 155 Ill. 123, where the point was directly involved, it was held: “A right of dower is an incumbrance, within the terms of that covenant, and it is immaterial whether that right of dower is inchoate or consummate.” In the case of Cowan v. Kane, 211 Ill. 572, the case of McCord v. Massey is approved and it is further held: “When a party has contracted for a title free from encumbrance he is not required to accept a deed subject to an inchoate right of dower, but if he is willing to accept a part performance he may do so, and the seller will not be permitted to take advantage of a defect in his title./’ Counsel for appellant also cites a number of cases involving the right for specific performance of contracts for the sale of real estate where, the wife of the vendor did not sign the contract, which hold that upon a bill for the specific performance of such a contract the purchaser must accept the deed executed by the seller, pay the purchase price and rely upon the covenant of warranty in the deed. The reason announced in all such cases is that a court of equity cannot compel the wife to execute the deed, and as the value of her inchoate right of dower is unaseertainable, no rebate therefore can be deducted from the purchase price. The case at bar is a suit at law and appellee is entitled to recover, if any, the amount of damages sustained by reason of the failure of. appellant to deliver to him a deed conveying title free from incumbrances.

The contention that appellee did not offer to perform within a reasonable time cannot be sustained. Regardless of the objections to the competency of some of the evidence admitted, appellant has waived that defense. Bach time that appellee attempted to have appellant make the conveyance, a different excuse or reason for his not doing so was made by the latter. He first said that he had made other arrangements and at another time that there was a mortgage upon the place, and finally he seeks to excuse himself because appellee demanded that the deed should be executed also by his wife. At no time after the contract was executed did appellant tender any deed or do any act towards the performance of his part of the contract, and never at any time demanded of appellee the payment of the purchase price and never claimed a right to refuse to make the conveyance on the ground that appellee had not offered to perform within a reasonable time. In the case of Gibson v. Brown, 214 Ill. 330, where a similar question was involved, the court said: “By placing the refusal to perform the contract on those grounds he Avaived all other contentions which he now makes as a reason Avhy he should not perform the contract.”

Lastly, it is claimed that the damages are excessive. The measure of damages is the increased value of the land, if any, at the time of the breach of the contract above the contract price. Dady v. Condit, 188 Ill. 234; 209 Ill. 488. The amount of the damages assessed by the jury is sustained by the proofs.

We are of the opinion that no errors appear in the record sufficient to cause a reversal of the judgment and the same is therefore affirmed.

Affirmed.

Mr. Presiding Justice Waggoner took no part in the decision of this case.


text:
    Clara K. Henninger, Appellee, v. Inter-Ocean Casualty Company, Appellant.
    1. Death, § 8

      —-death certificate as evidence. The provision of Rev. St. ch. 111%, sec. 20 [Callaghan’s 1916- Stat. If 10616(20)] making a death certificate prima facie evidence of the facts therein stated, does not make such a certificate prima facie evidence of mere conclusions based upon hearsay.
    2. Insurance, § 667*—what evidence is insufficient to show cause of death. In an action to recover on a health and accident policy, a statement in the death certificate that the abrasion from which the septicemia causing the death of insured started was caused by a garter buckle is properly excluded as a conclusion of the physician making the certificate, especially in view of the fact that there is no evidence in the -record that insured ever wore garters or that the abrasion Was located where it might naturally have been caused by the rubbing of a garter buckle.
    3. Insurance, § 601*—when presumption as to cause of death is available. In an action to recover on an accident and health policy, proofs which merely tend to show that insured died from septicemia, that the germs causing septicemia must' enter through an abrasion of the tissues and that insured had a red spot on the calf of his right leg, are not sufficient to warrant a finding for plaintiff requiring presumptions that insured received an external injury to his right leg causing an abrasion and that the injury causing the abrasion was involuntary, accidental and caused by violent means.
    4. Evidence, § 23*—what presumption may be based on. A presumption cannot be based on a presumption.
    5. Evidence, § 466*—when circumstantial evidence is sufficient. When circumstantial evidence is relied upon to prove a fact, the circumstances must be proven and not themselves presumed.
    Appeal from the Circuit Court of McLean county; the Hon. Sain Weltt, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and remanded.
    Opinion filed April 27, 1920.
    Allen, Humphrey & Converse, for appellant; Wight & Alexander, of counsel.
    Jesse E. Hoffman, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

This is an appeal from a judgment rendered in an action of assumpsit in favor of appellee for the sum of $3,750. The suit was brought to recover upon a combination accident and health insurance policy, originally issued by the Woodmen’s Casualty Company which subsequently changed its name to Inter-Ocean Casualty Company. The insured was J. W. Henninger arid the beneficiary is Clara Henninger,. his wife and appellee. The declaration sets out the terms of the policy and the parts thereof material to the issues here involved are as follows:

“(A) If the insured shall, within ninety days after the accident, sustain any of the following total losses, resulting from bodily injuries which are the direct and proximate result of, and are caused solely and exclusively by external,' violent, accidental and involuntary means, while this policy is in full force and effect, the Company will pay to the insured as follows, in lieu of all' other benefits or in the event of the insured’s death, to Clara K. Henninger (his wife) his beneficiary, if surviving, otherwise to the legal representatives of the insured.”

“Boils, Felons, etc. Disability resulting wholly or in part from boils, felons, abscesses, carbuncles, ulcers, blood poison, sunstroke and freezing, from any cause, shall be paid for as sickness under Paragraph (H) entitled ‘Sick Benefits.’ The original cause thereof notwithstanding. ’ ’

It is averred in the declaration that the insured on July 20, 1918, received an accidental scratch, cut or abrasion of the skin in one of his lower limbs from which blood poison resulted, causing his death on July 25, 1918, as the direct result of said injury.

Appellant introduced no evidence and the following is the substance of the proofs introduced by appellee to maintain her action. Theodore Kemp testified that on July 17 he made a friendly visit to the home of the deceased and the latter showed him his right leg, on which there were some kind of red spots on the inside of the calf about 4 or 5 inches below the knee; that the skin did not appear to be broken and was not bleeding but was very red and angry; that there was no scab onjt and the spot was about the size of the end of the thumb and there were some little splotches of red above and extending upwards 3 or 4 inches; that he did not notice, the leg being swollen.

C. F. Calloway, the undertaker and embalmer who examined the body of the deceased preparatory to embalming it, testified that there was an abrasion below the knee of the right leg on the inner side of the shin bone about 5 or 6 inches below the knee joint but it was not sufficient to cause any leakage of the embalming fluid; that he gave the body a very thorough examination to see if there were any breaks in the skin which would permit the embalming fluid to leak out but there were no such breaks; that there was no cut, it was an abrasion; that there was a dry scab formation about half or three-quarters of an inch in diameter; by an abrasion he meant a break in the skin, not necessarily a break, but an irritation.

Dr. Edson Hart testified that he had been called- in consultation with the attending physician, Dr. Yoltori, and found the deceased suffering from infection; that he made an examination for appendicitis and concluded that the patient did not have that disease; that he found an infection of the right leg localized above the knee and advised Dr. Yolton to open the leg, which he did and found a small amount of pus for which drainage was inserted; that infection had started at some point below and was carried up the lymphatics and came close to the surface above the knee; that the whole leg was swollen; that he did not make any definite examination to see where it started because the trouble was above the knee at that time; that he saw deceased again the day he died and at that time the abdomen was distended, the skin cold and clammy and there was no perspiration; that he advised calling in Dr. Chapin, who said an operation would not do any good at that time; that in his own opinion deceased died from streptococcus infection started below the knee, and which is ordinarily known as blood' poison; that the skin must be broken at some point lief ore the germs can enter the system; that' Dr. Chapin expressed an opinion that deceased had appendicitis as a result of the bursting of the appendix.

Dr. Bryan testified that he was a brother-in-law of appellee and came to her home shortly after the death of the deceased to attend the funeral; that the question had been raised whether the deceased might have been afflicted with appendicitis and, if so, whether his life might have been saved if he had been operated on and he decided to make a post-mortem examination to determine whether the deceased had died from that disease; that he made the autopsy after the deceased had been embalmed for 24 hours; that it was made in the presence of Dr. Yolton and the undertaker and a nurse, Miss Eberheardt; that he removed the appendix, which was in a normal condition; that after finding that the deceased did not have appendicitis he did not operate further.

Lulu Eberheardt, a professional nurse, testified that she was present at the autopsy and saw the appendix after it had been removed and that it appeared to be perfectly normal.

Dr. Yolton and Dr. Chapin did not testify. The undertaker, Calloway, corroborated Dr. Bryan and the nurse in the fact that the appendix was in a normal condition. The above is a summary of all the oral testimony given, and the only other evidence in addition thereto was a certified copy of death signed by Dr. Yolton. Part of the certificate is as follows:

“The cause of death was as follows:

Septicemia (started in Bt. leg from abrasion of skin) (made by garter buckle July 12), chill July 17. ........(Duration) ......Yrs.......Mos.......6ds.

Contributory (Secondary) General Peritonitis.

about

Duration......Yrs.......Mos.......3 ds.

The words “made by garter buckle July 12” were not admitted in evidence on objection thereto by appellant. No cross-error has been assigned by appellee to the action of the court in excluding these words from the certificate and appellee cannot now insist that there was any error therein. While section 20, ch. 111½, Rev. St. [Callaghan’s 1916 Stat. ¶ 10616(20)] provides that such a certificate shall be prima facie evidence of the facts therein stated, it does not make such a certificate prima facie evidence of mere conclusions based upon hearsay. It will be readily perceived that such a construction of the statute would lead to most dangerous and hazardous consequences. Even if the physician had received his information from the insured, the statement would not have been competent. Globe Accident Ins. Co. v. Gerisch, 163 Ill. 625. There is no evidence in the record that the insured in his lifetime wore garters with buckles on them, or garters at all, nor any proof that the sore was in a location where it might naturally be caused by the rubbing of a garter buckle. Even if such proofs had been made, they would not have made the above conclusion of the physician in the certificate competent. This phrase in the certificate was properly excluded. The theory of counsel for appellee is that because the testimony of Dr. Hart shows that the skin must be broken at some point before the germs causing septicemia or blood poison .can enter the system, an external injury is proven, and, therefore, the presumption of law is that it was violent, involuntary and accidental. The falacy of this reason is that there is no direct evidence of an external injury causing the breaking of the skin, and an abrasion of the skin may be produced by means other than external injury. It is established by medical authority that an abrasion of the skin may not only be caused by external force but also by means of chemical action or by a disease process, in other words, an abrasion of the skin may be purely pathological and the result of some disease such as eczemn or from a pimple, boil, rash, heat or sunburn. The proofs induced only tend to show three facts in regard to the cause of the death of the insured: First, that the insured died from blood poison or septicemia; second, that the germs which caused this disease must enter the body through an abrasion of some of the tissues; third, that the insured had a red spot on the calf of his right leg. From these facts we are asked to presume, first, that the insured received an external injury to the right leg, which caused an abrasion of the skin, and, second, that such an injury was involuntary, accidental and caused by violent means. In order to sustain a cause of action in this case it would be necessary to presume the existence of every material fact as to the cause of the death of the insured necessary to establish appellee’s claim under the terms of the policy. A presumption cannot be based upon a presumption, and whenever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved, and not themselves presumed. Globe Accident Ins. Co. v. Gerisch, 163 Ill. 625; Ohio Building Safety Vault Co. v. Industrial Board, 277 Ill. 96, 14 N. C. C. A. 224. Iu the latter case the court said: “It cannot be said that the existence of a certain fact may reasonably be inferred from the evidence when the existence of another fact inconsistent with the first can be from the same evidence inferred with équal certainty. A theory cannot be said to be established by circumstantial evidence unless the facts relied on are of such a nature and are so related to each other that it is the only conclusion that can reasonably be drawn from them.”

The judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.


text:
    Kate Stafford (Mary Duggan, Guardian of John William Stafford, an infant, Appellant), v. William Nathan Stafford, Appellee.
    1. Appeal and error, § 1169

      —when eases are properly consolidated. Since an appeal to the circuit court in the matter of the guardianship of a minor child of divorced parents and a motion in such court to modify the decree entered in the divorce suit and to vacate the order for a further hearing in the guardianship matter-appealed from the county court both involve the same question and that question only, namely, the custody of the minor, the circuit court properly consolidates such appeal and motion.
    2. Parent and child, § 3*—extent of parent’s right to custody. A parent has a right to the custody of his child as against all the world unless he has forfeited that right or the welfare of the child demands that he he deprived of it,
    3. Parent and child, § 3*—what parent is entitled to custody of child. As between the father and mother of a minor the father has the superior right to its custody, all things being equal.
    4. Divorce, § 159*—what is effect of decree as to custody of child. A decree directing the custody of a minor child is exceptional in its character and is always regarded as temporary, and. the court retains jurisdiction to Yeview the question at any future time.
    5. Divorce, § 159*—vjhen decree as to custody of child may he modified. One whose wife secured a divorce by default may, after her death, be properly awarded custody of the person of their minor child, which the decree had awarded the wife, though he is a nonresident, the evidence upon such proceeding showing that he is a fit and proper person to have custody of their child.
    Appeal from the Circuit Court of Moultrie county; the Hon. George A. Sentel, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed April 27, 1920.
    W. E. Redmon and E. J. Miller, for appellant.
    J. R. Fitzgerald, J. L. McLaughlin and Elliott Billman, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Kate Stafford, now deceased, and William Nathan Stafford, appellee, were married in Oklahoma, October 29, 1907. One child, John William Stafford, was born of this marriage. In 1913 or 1914, appellee with Ms wife and child moved to Dalton City, Moultrie county, Illinois, though he still retained his business interests in the buying and selling of horses in the State of Oklahoma. On February 21, 1917, appellee’s wife filed her bill for divorce charging appellee therein with extreme and repeated cruelty and habitual drunkenness. Appellee filed an answer to the bill in which he denied all the charges made. In October, 1917, at the September term of the circuit court, while appellee was in Oklahoma, his wife obtained a decree of divorce by default. The decree found that appellee was not a suitable or proper person to have the care and custody of the child, who was then 8 years old, and gave the custody thereof to the complainant, Kate Stafford. The solicitor whom appellee had employed to represent him in the divorce case had enlisted in the United States navy and appellee had not been notified of the hearing of the case. On November 3, 1917, Kate Stafford died and appellee, having been notified of her death, returned to Dalton City to attend her funeral and learned for the first time that she had procured her decree of divorce. He thereupon, at the same term of court at which the decree was entered, filed his motion to vacate the same and for leave to introduce evidence. On November 9, 1917, Mary Duggan, appellant, and sister of Kate Stafford, filed Kate Stafford’s will for probate in the county court and also a petition asking that she be appointed guardian of the estate of the minor child, John William Stafford. No notice was served or summons issued against app'ellee in these proceedings in the county court, but he, having heard that an attempt was being made to appoint a guardian for his son, appeared with his attorney in the county court and objected to the hearing at that time. The county court thereupon set the hearing for the 17th day of November. Appellee at the time was buying horses and mules for the United States government, and on November 16 received a telegram requiring* him to return to Oklahoma in regard to that business. He consulted with his attorney about leaving before the hearing in the county court and was advised that the latter would procure a postponement of the matter for a week or ten days and appellee thereupon returned to Oklahoma. The judge of the county court, however,overruled his motion for a continuance and proceeded with the hearing while appellee was not present. On the morning, of the hearing in the county court, after appellee’s motion for a continuance had been overruled and it was known that appellee could not be present, appellant amended her petition by inserting in the prayer that she be appointed also guardian of the person of the minor child. The county court entered an order appointing appellant guardian of both the property and the person of the child. Appellee took an appeal from this order to the circuit court where, upon the first hearing, that court affirmed the order of the county court upon the ground that appellee was precluded from asserting his rights as the father of , the child because of the divorce decree entered in the divorce case. Thereupon appellee made a motion to modify the decree entered in the divorce case and also to vacate the order and for a further hearing in the guardianship matter appealed from the county court. As both cases involved but the one question, that of the custody of the minor child; the court upon its own motion consolidated and heard them at the same time upon the same evidence. Much evidence was introduced and at the conclusion of which the court modified the decree in the divorce suit by striking out the finding therein that appellee had been guilty of habitual drunkenness and was not a suitable person to have the care and custody of the child and adjudged that such care and custody of the child be given to appellee. The court also entered an order in regard to the guardianship matter affirming the order of the probate court in so far as it appointed Mary Duggan guardian of the property of the minor child but appointed appellee guardian of his person. Prom these orders appellant prosecuted the appeal.

Many errors have been assigned and argued by appellant. The first point made is that the circuit court had no authority to consolidate the appeal in the guardianship matter with the motion to modify the decree in the divorce ease. The two matters involved the same question and that question only. The court not only had the right to consolidate them but it unquestionably was the proper practice. The next contention is that it was error for the court to give the custody of the child to appellee and thus permit it to be taken out of the State and out of the jurisdiction of the court. A parent has a right to the custody of his child as against all the world unless he has forfeited that right or the welfare of the child demands that he should be deprived of it. As between the father and the mother of a minor child, the father has the superior right to its custody, all things being equal. In the case of Sullivan v. People, 224 Ill. 468, it is said: “The father’s right to the custody of his child is superior to the right of any other person if he is'a fit person to have such custody and is so circumstanced that he can provide the necessaries of life and properly maintain and educate the child.” To the same effect is Hohenadel v. Steele, 237 Ill. 229. In the case of Cormack v. Marshall, 211 Ill. 519, it is held: “We regard the rights of the parent as su-. perior to those of any other person, when that parent is a fit person to have the custody of children and is so circumstanced that he can provide the necessaries of life and administer to the requirements of such a charge. The mere fact that some other person may have more money or property in any form is not one that appeals to us. The divine injunction to multiply and replenish the species was not confined to the rich, nor was it intended that the poor should beget the children and the rich should rear them. To recognize such doctrine would be little less than monstrous, and would be in utter disregard of those natural instincts of love and care and interest found in the breast of the parent. And while it is said in the books that the interests of the child is the controlling question, it is not meant thereby to say that the financial interests, only, of the child shall predominate. The courts cannot be unmindful of the great fact standing prominently in all our biographies and histories, that the greater number of the men and women of real worth in our nation and throughout the world have come up under circumstances that required a struggle upon the part of their parents and themselves to make themselves what they were. While the financial interests of the child" are not to be disregarded, they are, likewise, not to be controlling. Neither the day laborer nor the minister of the gospel is to be discriminated against in consideration of this one of the highest natural rights with which man is' endowed, merely because of the wealth of those who are contending against him. Until it becomes contrary to law that people in poor or moderate circumstances shall produce children, the courts must recognize and enforce the sacred rights and the legal rights they have to their custody, control and society.” Section 4, ch. 64, Rev. St. (J. & A. ¶ 6001) provides as follows: “The guardian of a minor shall have, under the direction of the court, the custody, nurture and tuition of his ward, and the care and management of his estate; but the parents of the minor, if living, and in case of the death of either of the parents, the surviving parent, they being respectively competent to transact their own business, and fit persons, shall be entitled to the custody of the person of the minor and the direction of his education. The parents of a minor shall have equal powers, rights, and duties concerning the minor. In case the father and mother live apart, the court may, for good reasons, award the custody and education of the minor to either parent or to some other person.” Section 6 of ch. 64 (J. & A. ¶ 6003) is as follows: “The guardianship of the infant’s estate may be appointed to one, and the custody and tuition of the minor to another.” A decree directing the custody of a minor child is exceptional in its character and is always regarded as temporary. Hohenadel v. Steele, supra. The original decree of divorce which found that appellee was not a fit person to have the care and custody of the child in question was entered upon a hearing of the case wherein appellee had been defaulted and had made no defense. The decree, in so far as it disposed of the custody of the child, was but temporary, and the court retained jurisdiction to review that question at any time in the future. It was proper for the court to again receive evidence and determine the fitness of appellee to have the custody of the child. After a lengthy hearing upon this question the judgment of the court was that appellee was a fit and proper person to have the custody of his- child, and his finding is warranted by the evidence, The mother of the child is dead and ■ appellee is the surviving parent. By the mother’s will some property is bequeathed to the child. Appellee does not seek to be appointed guardian of the estate of the child and waived in open court any such right. He only seeks the custody of the person of the minor. It is insisted that this cannot be done because appellee is a resident of Oklahoma and that it is unlawful to appoint one a guardian of a minor child who is a nonresident and out of the jurisdiction of the court. If it be conceded that there may in some cases be special and controlling circumstances which would make it inadvisable to appoint a surviving parent, who is a nonresident, guardian of the person of his own minor child, no such circumstances appear in this case. Appellee is the guardian of his child by the law of nature. He has been found a fit person to have its care and custody. To hold that the surviving parent of a minor child, under the circumstances appearing in this case, could not change his residence from one State to another without sacrificing the custody of such child, would be unconscionable, without reason, and contrary to all precepts of humanity and civilization. The rule is well stated in 21 Cyc. 63, where it is said: “A guardian by nature, or a testamentary guardian, may in good faith change his ward’s domicile, either from one State to another State, or from one county to another county in the same State. As respects natural guardians, this doctrine amounts to no more than that the domicile of the parent is the domicile of the child. The exercise of this right, however, is subject to the power of the court to prevent an improper removal of an infant out of the State, although it will be a very extreme or special case which would induce the court to interfere with the parent’s natural rights in this respect.” No reason appears in the record in this case why ■ appellee should not have the custody of his own child as its surviving parent. It was held in the case of Cummins v. Cummins, 29 Ill. 452: “When the testator appointed defendant guardian of his children, knowing that he resided permanently in Indiana, it may well be inferred that he expected that his brother would remove the children there. Without that, he could not expect that the guardian could take proper care of the wards.”

Other contentions, mostly of a technical nature, have been raised by appellant but are all subversive to the controlling question as to whether appellee as a surviving parent had the right to the custody of his minor son, and on that question the decree and order of the circuit court is right and is affirmed.

Affirmed.


text:
    Louise M. Karr et al., Appellees, v. Lee Rust, Conservator, Appellant.
    1. Divorce, § 64

      -—conclusiveness of decree. A court retains jurisdiction of a divorce proceeding at all times to enforce, adjust or modify an original decree in regard to the payment of alimony and custody of children as circuihstances may subsequently demand.
    2. Divorce, § 35®—what is extent of jurisdiction on supplemental hill. The circuit court has no jurisdiction on a supplemental petition in a divorce suit to enforce the specific performance of a contract between the divorced wife and the divorced husband which seeks to make a testamentary disposition of the funds of the husband in the hands of a conservator of the estate of the husband, the latter having been adjudged a spendthrift, and requires that such conservator pay the trust funds in his hands to a third person, not for the benefit of the divorced wife or the children during minority, but for the benefit of the children on the husband’s death.

      3. Contbacbs, § 108

      —when contract of spendthrift is void. Under Rev. St. ch. 86, sec.' 14 (J. & A. If 7298), a contract between one who has been adjudged a drunkard and spendthrift and his divorced wife for the payment to a third person for the benefit of his wife and children of funds in the hands of his conservator, is void ah initio.

    4. Continuance, § 10*—■when continuance is proper. On a petition for a decree to compel a conservator to pay over trust funds, where the conservator has givep. large bonds, the amount involved is large, the matter at issue is important and no harm will result from a temporary postponement, such postponement may properly be allowed on motion of the conservator, supported by proper affidavits, on the ground that he is prevented from attending the hearing by reason of the serious illness of one of his children.
    5. Contbacts, § 8*—what is effect of uncertain contract. A contract between one who has been adjudged a drunkard and spendthrift and his wife for the payment of funds in the hands of his conservator to a third person for the benefit of the wife and children, held so uncertain, ambiguous and inconsistent as to be of doubtful enforceability. ■
    Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and remanded with directions.
    Opinion filed April 27, 1920.
    A. E. and R. C. De Mange, for appellant.
    Costigan & Wollrab, Livingston & Whitmore, M. A. Brennan and John M. Sullivan, for appellees.

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

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

   Mr. Justice Eldredge

delivered the opinion of the court.

In June, 1911, William Elder Karr owned a farm in McLean county, in this State, of the value of about $50,000. He had previously also contracted to purchase 774 acres of land located in California for the sum of $50,310, the purchase price thereon to be paid by instalments at certain intervals. This contract had a forfeiture clause providing that if he failed to make any of ilie stipulated payments it would become null and void, and all previous payments would be forfeited. He had paid instalments thereon amounting to about $23,000, leaving a balance of over $27,000 due and unpaid. His other indebtedness also amounted to about $27,000. He had become a drunkard and a spendthrift, and was in danger of losing all of his property on account of his dissipation. On June 10, 1911, he conveyed, by deed of trust, to Lee Rust as trustee, the farm in question together with all his personal property of every kind, for the purpose of preserving the same and for the necessary support of himself and family, and for the purpose of paying, securing or refunding any and all indebtedness theretofore incurred. To further enable Rust to discharge his trust, Karr and his then wife, Louise B. Karr, assigned the contract for the purchase of the California land to Rust as trustee, September 18,1911. On October 17, 1911, his wife, Louise B. Karr, also conveyed all her right, title and interest in and to the property of her husband to said Rust as trustee. On September 18, 1911, Karr was adjudged a drunkard and a spendthrift by an inquisition and Rust was appointed conservator of his estate by the county court of McLean county.

Rust, as conservator, by order of the county court, sold the farm in McLean county, and after applying sufficient of the proceeds of the sale to the outstanding indebtedness of Karr, paid the balance on the purchase price of the California land. The California land was finally paid for by Rust personally borrowing sufficient money to complete the payments, and in 1918, by order of the county court, he sold the California land and after paying the moneys advanced by him and all other indebtedness, costs and expenses had a net balance of $32,393.89 as the principal of the trust estate.

In the meantime, Louise B. Karr, on January 11, 1913, obtained a decree of divorce from her husband. By this decree Rust, as conservator of her husband’s estate, was ordered to pay to her $3 00 per month alimony for the support of herself and their two sons.

During the interval between the sale of the lands in McLean county and the sale of the land in California, the conservator had no funds wherewith to pay the alimony so that on November 14, 1918, the unpaid instalments thereon had accumulated until they amounted to $4,100. On October 7, 1918, Karr and his divorced wife, said Louise B. Karr, executed a written agreement as follows:

“Whereas, William Elder Karr and Louise B. Karr, his divorced wife, have entered into an agreement this 7th day of October, A. D. 1918, in settlement of all their rights and interests of eveiy kind and description and,

“Whereas, it has been agreed that the said William Elder Karr is to pay to the said Louise B. Karr the sum of $13,750.00 in full settlement of all her rights, interests and claims that she may have or that she may hereafter have against the said William Elder Karr or his estate, and property, and,

“Whereas, as a part consideration of said settlement the parties hereto have agreed to set aside $10,000.00 for the benefit of their children in some bank or with some person to be designated by the County Judge of McLean County, Illinois, as follows:

“The said William Elder Karr is to deposit and set aside the sum of $6,700.00 as aforesaid, and the said Louise B. Karr is to deposit and set aside the sum of $3,300.00 as aforesaid. It is further agreed that the said Louise B. Karr is to receive the interest from the said $3,300.00 so deposited as her own property during the lifetime of the said Louise B. Karr, subject to the rights of her children, namely Roy Warfield Karr and Porter Wakefield Karr as hereinafter stipulated.

“It is understood and agreed that the said William Elder Karr is to receive the interest and income from the said $6,700.00 during his lifetime as his own property, except as the right of his children, may interfere as hereinafter stipulated.

“It is understood and agreed between the parties hereto that in no event or under no circumstances is the said Louise B. Karr to have any right or interest in the sum of $6,700.00 or any account as divorced wife, widow or legal representative of the said William Elder Karr, and it is also agreed that the said William Elder Karr in no event is to have any interest or right or claim in the said $3,300.00 as divorced husband of the said Louise B. Kárr.

“It is further understood and agreed between the parties hereto that if either of said parties should die during the lifetime of their children or either of them, then and in that case the amount so deposited by the party deceased shall go to the said children or the surviving child as their absolute property.

“It is further understood and agreed that the said children above referred to are not to have any interest in the sum of $6,700.00 so deposited by the said William Elder Karr, except as may be agreed upon by the said William Elder Karr, or the County Court of McLean County, Illinois.

“It is further understood and agreed between the parties hereto that the said children above referred to are not to have any interest in the sum of $3,300.00 so deposited by the said Louise B. Karr, except as may be agreed upon by the said Louise B. Karr, or the County Court of McLean County, Illinois.

“Witness our hands and seal in triplicate this 11th day of October, A. D. 1918, at Bloomington, Ill.

William Elder Karr.

Louise B. Karr.”

On November 14, 1918, Louise B. Karr filed a petition in the original divorce suit, in which many of the facts above narrated are set forth, and in which it is further averred that the conservator has not paid the said sum of $13,750 in accordance with the above contract nor the accrued alimony of $4,100, and concludes with a prayer for a supplemental decree requiring the conservator to pay to her the said sum of $13,750, in full settlement of her alimony and interest in the estate of Karr, and in full discharge of all her property rights. On December 20, 1918, while said petition was pending and before there had been any hearing thereon, the court entered an order directing the conservator to pay to her the unpaid alimony $4,100, which was done. The conservator answered the petition, and in his answer, among other things, averred that he had never approved the contract executed by his ward and that the same was void because executed by one under disability and without the approval or consent of his conservator.

When the petition came up for hearing before the court, a child of the conservator was seriously ill and the former’s presence was required at his home, and he could not appear in court. His counsel made a motion for a postponement of the hearing until his client could be present, which was supported by proper affidavits, including one from the physician in charge. The conservator had given large bonds both as trustee and as conservator, the amount involved in the proceeding was large, the matter at issue was important, and no harm could have resulted to any one in interest by a temporary postponement of the hearing. The court might have granted the motion with the utmost propriety under the circumstances, but he overruled the same and proceeded with the hearing by taking testimony without the presence of the conservator.

The court entered a decree directing, among other things, that Karr pay to Louise B. Karr, $13,750, less $4,500 accrued alimony theretofore paid; that Bust as conservator pay to said Louise B. Karr $9,250, and pay to the Peoples Bank of Bloomington, as trustee, $6,700 out of the funds of Karr; that the net interest and profits on the sum of $6,700 be paid to Karr during his lifetime, conditioned, however, that if either of said sons by reason of misfortune should come to want, or should require the same for their proper maintenance and support, that the interest or principal of the same might be used for them, and upon the death of said Karr the said sum of $6,700 to become the absolute property in fee simple of said sons, or the survivor of them, and that said bank as trustee make report from time to time to the court of its acts and doings in handling said trust fund. Thus it will be seen that the court created a new trust in the sum of $6,700, funds belonging to the estate of Karr, in which neither his divorced wife nor his children had any interest and over which the county court had exclusive jurisdiction.

Several collateral questions have been presented and argued in the briefs of counsel which, from the view we take, it will not be necessary to mention. The main question in controversy is whether the court could in the original divorce proceeding enter a decree for/the specific performance of this alleged contract. /Alimony is allowed under the laws of this State for the maintenance and support of the wife and the children during their minority, and it is unquestionable that a court retains jurisdiction of a divorce proceeding at all times to enforce, adjust or modify an original decree in regard to the payment of alimony and the custody of children as circumstances may subsequently demand. Í The contract in question here, however, is not confined to the payment of alimony and the custody of children. It provides that Karr shall not only pay to Louise B. Karr, his divorced wife, $13,750, in full settlement of all her rights, interests and claims that she may have against him or his estate, but also that he shall deposit $6,700 in some bank or with some person to be designated by the county court of McLean county, he to receive the interest .on the same during his lifetime and on his death the principal sum so deposited to go to his children. By this provision an attempt, is made to make a testamentary disposition of the estate of Karr. It compels the conservator to pay money, in his hands as such, to a third party, not for the benefit of the divorced wife nor for the benefit of the two children during their minority but for the benefit of the children at Karr’s death. These funds are held by the conservator pursuant to his .trust as such conservator for the benefit of his ward, and even the county court would have no authority to compel him to make a testamentary disposition of the estate of his ward, and neither does the circuit court have jurisdiction on a supplemental petition in ja divorce suit to decree the specific performance of such a contract.

The contract itself is void ah initio. Section 14, ch. 86, Rev. St. (J. & A. ¶ 7298) provides as follows: “Every note, bill, bond or other contract by an idiot, lunatic, distracted person or spendthrift, made after the finding of the j’ury, as provided in section 1 of this act, shall be void as against the idiot, lunatic, distracted person, drunkard or spendthrift, and his estate.” If a drunkard and spendthrift who has been found upon inquisition to be incapable of managing or caring for his own estate should be permitted to make contracts disposing of his estate, the statute would be nullified and have no force whatever. There would be no object in appointing a conservator for the estate of such a person if the latter could, without restriction, dispose of his property by contradi or otherwise as he saw fit.

This alleged contract is also so uncertain, ambiguous and inconsistent in its terms that it is questionable whether it could be enforced between the parties even if one of them had not been under disability.

A motion has been made by appellee, Louise B. Karr, to affirm the decree on the ground that it was taken merely for delay and to put her to unnecessary cost and expense. This motion was taken with the ease and is hereby denied.

The decree of the circuit court is reversed and the cause remanded with directions to dismiss the petition for want of equity.

Reversed and remcmded with directions.


text:
    Thomas B. Orear, Appellee, v. Jacksonville Railway & Light Company, Appellant.
    1. Municipal corporations, § 917

      —when material may be placed in street. The mere fact that a street railway and gas company, in order to repair its tracks and mains in the street, excavates in the street and piles the material taken from the excavation therein does not constitute a negligent or wrongful act, as such company has a lawful right to obstruct the street temporarily for the purpose of making needful repairs to its roadway and mains.
    2. Municipal corporations, § 1052*'—when walking in street may be evidence of contributory negligence. While the act of one in proceeding, after alighting from a street car in the dark, along the middle of the street to a point opposite the house which he wished to enter and then crossing to the sidewalk, though there was a depression in the street at such point and brick were piled there, of which condition he knew, and though he gained nothing in distance or convenience by selecting this route instead of using the street crossing, may not have constituted negligence per se, it is an evidentiary fact strongly tending to prove such negligence.
    3. Negligence, § 99*—when capacity of old person is immaterial in determining contributory negligence. In an action by a person 80 years of age to recover for personal injuries, where his evidence showed that at the time of the injury he was in good health mentally and physically and the proofs in the record are such as to render accurate instructions on the law essential, it was error to give at plaintiff’s request an instruction which permitted the jury to take into consideration his age, capacity and experience, in determining whether plaintiff was guilty of contributory negligence.

      4. Municipal cobpobations, § 1038

      —liability of individuals -for obstructions in streets. No recovery can be had against a street railway and light company for personal injuries where the only negligence alleged in the declaration is in placing on the curbing and sidewalks brick which had been removed by it in making necessary improvements or repairs to its roadway and mains.
    Appeal from the Circuit Court of Morgan county; the Hon. Nob-man L. Jones, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and remanded.
    Opinion filed April 27, 1920.
    Bellatti, Bellatti & Moriarty, for appellant.
    Thompson & Thompson, for appellee.

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

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Appellee sued appellant in an action on the case to recover for injuries claimed to have been received on account of the negligence of the latter and obtained a verdict and judgment for $1,250 damages.

The case went to trial under a declaration consisting originally of three counts. At the conclusion of all the evidence the court excluded the same as to the third count and directed a verdict of not guilty as to that count. No cross-error had been assigned by appellee as to this action of the court and that count requires no further consideration.

In the first count it is averred in substance that appellant was, on February 15, 1918, possessed of and operating a street railroad in the City of Jacksonville "on a street known as 'South Main street, and was also then the owner of a gas plant and of certain pipes and mains located under said street; that long prior to the date of the injury appellant was preparing to make or was making improvements or repairs in its railway tracks and gas mains near the intersection of said South Main street with Kentucky street and in so doing wrongfully and negligently caused said street to be torn up and excavated and negligently caused or permitted large quantities of dirt, cinders, gravel, stone, bricks, concrete blocks and other obstructions to be piled up and remain for a long period of time in said street and on or about the curbing thereof in such a manner as to obstruct and render the same unsafe for pedestrians to cross over the same; that appellee on the night of February 15, 1918, at or about the hour of 7:30 o ’clock, was a passenger on appellant’s street car going south on said Main street to his home; that the car stopped at a point on said street opposite plaintiff’s residence, which was the usual place at which passengers were received and discharged and was at or near the place in said street obstructed as aforesaid; that appellee alighted from the car on the east side thereof and attempted to cross said street to the sidewalk on the west side of the same and in front of his house; and while so attempting to cross the street and while in the exercise of due care for his own safety he then and there necessarily and unavoidably tripped and stumbled over and fell upon said bricks, stones and other obstructions in said street and sidewalk and was thereby injured, etc. No duty is alleged in this count, nor that the violation of such was the cause of the injury to appellee. No facts are alleged from which it might be inferred that appellant was guilty of negligence or of the violation of any duty it owed to appellee. The averment that appellant wrongfully and negligently caused said street to be tom up and excavated and thereby negligently caused dirt, cinders, etc., to obstruct the street does not state any actionable negligence. The mere fact that appellant, in order to repair its tracks and gas mains, excavated in the street and piled the material taken from such excavation therein did not constitute a negligent or wrongful act. Appellant had a lawful right to ternporarily obstruct the street for the purpose of making needful repairs upon its roadway and gas mains. Even an abutting property owner has a right to temporarily obstruct a part of a street for the making of improvements on his lot. Tolman & Co. v. City of Chicago, 240 Ill. 268; Gones v. Illinois Printing Co., 205 Ill. App. 5.

The second count is substantially like the first with the exception that it contains an additional allegation that appellant, well knowing of said dangerous obstructions in the street, wrongfully and negligently permitted them to remain there during the nighttime without guards, signal lights or other warning to the public of the said dangerous condition of the street. There is no averment in this count that appellee’s injury was received by reason of the absence of guards or signal lights and no facts are alleged from which such a conclusion can be inferred.

No motion in arrest of judgment was made by appellant and the sufficiency of the declaration has not been challenged but it has been necessary to set it out somewhat at length in order to understandingly pass upon the instructions in view of the evidence introduced under it.

' Appellee lived with his sister’s family on the west side of South Main street near its intersection with Kentucky street. According to the evidence introduced on behalf of appellee, during the spring and summer of 1918, appellant, after repairing its railway. tracks and gas mains, left a pile of bricks partly on the roadway and partly on the curb and sidewalk in front of the house where appellee lived. The street had been paved with brick and in repairing the gas main, which ran along about 3 feet east of the curb, the paving over the gas main had been removed and an excavation made. After the main had been repaired, the excavation had been filled in and the paving brick replaced in the pavement but had subsequently sunk to some extent causing a depression therein, the depth of which is not shown by the evidence. The pile of bricks complained of extended from the west side of this depression to and over the curbing towards the sidewalk. It is claimed by appellee that after these repairs had been made appellant did not remove this pile of old bricks but had left them there scattered on the roadway and piled on the curbing as above mentioned. The proofs also show that there were pieces of old broken cement curbing on the street at the place in question which had been left there by the City of Jacksonville and with which appellant had nothing to do. Appellee at the time of the injury was 80 years of age but testified that before the accident he had been in good health mentally and physically. He was perfectly familiar with the condition of the street as the obstructions were right in front of the house where he lived. On the night in question appellee got on the car on South Main street with the intention of going to his home. The car proceeded south and stopped immediately before it got to Kentucky street, that is, on the near side of the street. The rear or north end of the car, after it stopped, was opposite the house of appellee’s sister, where he lived. He testified on direct examination, in part, substantially as follows: “"When the car stopped it was right opposite my sister’s house. I got off the car at 6:45 or 7:00 o’clock. * * * I got off the street car and when I got to the step I saw it was very dark. I knew the condition of the street—that it was torn up and in bad shape—and I felt my way back of the ear to the west side and I began to feel my way with my cane. It was so dark I could not see a thing—not a thing— and when I got near the ditch I felt to' see if I could find any brick in there and I stepped in there and finally got on the other side and I partially stumbled and fell upon the sidewalk. * * * That night there were no lights and it was as dark as pitch. I could see nothing.” On cross-examination he testified: “I was in the ditch when I fell. Eight at the edge of the ditch. I wasn’t on the sidewalk. I was just in the act of stepping out of the ditch. I stepped into a pile of bricks. When I stepped out of the ditch I stepped into a pile of bricks. I stumbled over that pile of bricks and fell. The pile of bricks was on the curbing—on the sidewalk. I fell over them. * * * I did not stumble over the curb. I stumbled—when I stepped out of the ditch onto the street—there is where I fell. * * * There was some loose curbstones that had been broken in the neighborhood there. * * * I did not step on one of those loose curbstones. I stepped out of the ditch and stepped, I suppose, a little deeper and stepped onto the sidewalk. I stepped onto the curb and just then I got into a pile of bricks. * * * I got off the car on the east side at the front end. ’ ’

One of the defenses urged on the trial was that appellee was guilty of contributory negligence. Appellee could, with perfect safety after he had gotten off the front end of the car, have walked west on the street crossing to the west side of South Main street and thence north to his sister’s house on the sidewalk. Instead of doing this, after he left the car, he walked north in the middle of the street until he came opposite his sister’s house and then walked west across the street over this depression and over the pile of bricks. He knew that the depression in the pavement and the bricks were there. It was so dark he could not see anything and he says that he tried to pick his way by feeling with his cane. He gained nothing either in distance or convenience by taking the route he did. While his act in selecting the route he took under the circumstances may not have constituted negligence per se, it certainly was an evidentiaiy fact tending strongly to prove ,such negligence. Appellant introduced a large number of witnesses, persons who had been employed on the repair of the tracks and gas mains, who testified positively that aftér the repairs had been made all the old brick and debris had been hauled away. It is also not improbable under the evidence that appellee might have stumbled over the old pieces of broken curbing instead of over the bricks.

Under the proofs shown by this record it was essential that the jury should have been accurately instructed as to the law. The fifth instruction given on behalf of appellee is as follows: “By ordinary care, the law means such a degree of care under the circumstances, and in the situation in which the plaintiff was then placed, so far as they may be shown by the evidence, as an ordinary prudent person would exercise under the circumstances and in the same situation, for one of his age, capacity and experience. ’ ’ If appellee had been an infant of tender years, such an instruction would have been proper. There is nothing in the proofs tending to show that at the time of the injury appellee was not in the possession of all his faculties both mental and physical. Appellee himself testified that before the injury he could walk for miles, while since that time he is unable to walk more than a quarter of a mile. For persons of maturity and not under mental or physical disability, there is but one rule of law which governs' their conduct as to negligence. Under the proofs in this case the jury had no right, in determining whether appellee was guilty of contributory negligence, to measure his age, capacity' and experience. The mere fact that he was 80 years of age would not excuse him from exercising that degree of care for his own safety that an ordinarily prudent person would have exercised under like circumstances.

The first instruction given for appellee tells the jury that if they believe from the evidence that appellant wrongfully and negligently caused the brick to be placed on the curb and sidewalk as alleged in the declaration and permitted the same to remain there and that appellee while in the exercise of due care stumbled and was caused to fall by reason of such negligence then their verdict should be for appellee. This instruction substantially tells the jury that it was negligence on the part of appellant to place the bricks on the curbing and sidewalk. The mere fact that appellant may have placed the bricks on the curbing and sidewalk was not in and itself negligence as has been heretofore shown. The jury are referred to the declaration to ascertain the facts constituting the negligence of appellant, while, as a matter of fact, neither count of the declaration states sufficient facts to charge appellant with negligence. The same criticism'applies to the second, third, fourth and seventh instructions given on behalf of appellee.

For the errors indicated the judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.


text:
    Pearl Bevan Lincoln, Appellant, v. Mary C. Riley, Administratrix, Appellee.
    1. Marriage, § 2

      —what law governs. The law of the State where a marriage takes place controls as to its validity, and if the marriage is valid where celebrated, it is valid in Illinois.
    2. Marriage, § 2*—what marriages are invalid. The general rulo that a marriage, valid where celebrated, is valid everywhere else does not apply to marriages which are contrary to the laws of nature, as generally recognized by Christian countries, nor to those which are declared invalid by the positive law of the State in which it is sought to establish them.
    3. Marriage, § 21*—when marriage is presumed invalid. A marriage between two citizens of Illinois celebrated in Missouri in less than a year after one of them obtained a divorce in Illinois is contrary to the declared public policy of Illinois and will not be presumed to have been a lawful marriage under the laws of Missouri, the statutes of the latter State not having been introduced in evidence.
    4. Divorce, § 1*—common law. There is no common law governing divorce.
    5. Conflict of laws, § 9*—lohat presumption obtains as to foreign laws. In the absence of proof of the statute laws of another State, they will be presumed to be the same as the lex fori, where there is no common-law rule or legal presumption to the contrary.
    6. Marriage, § 21*—what is effect of presumption of valid marriage. Even though the presumption can be indulged that the marriage between two citizens of Illinois celebrated in Missouri was lawful under the laws of Missouri, it would not render such marriage valid in Illinois, if the parties went to Missouri to be married solely to evade the laws of Illinois.
    7. Marriage, § 26*—what evidence is insufficient to validate foreign marriage. Where an Illinois citizen went to Missouri' and married another Illinois citizen the day after the latter had secured a divorce in Illinois, both stating to the licensing officer and to the officiating minister that they were residents of Illinois, and the husband had no employment in the 3 months they lived in Missouri, there being no evidence that he seriously sought any nor of any other fact tending to show an intention actually to establish a residence and become a citizen of Missouri beyond the bare statement of the wife in a proceeding by her to establish the marriage that such was the fact, such evidence is insufficient to validate the marriage in Illinois, in view of the prohibition in Rev. St. ch. 40, sec. 1-A (J. & A. H 4216) against the marriage of a divorced person within one year after the granting of the decree.
    8. Adpeal and error, § 340

      —who may object to denial of motion to intervene. One who seeks to intervene is the only one who can complain that the lower court erred in denying its motion for leave to file an intervening petition.
    Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed April 27, 1920.
    Costigan & Wollrab, for appellant.
    A. E. and R. C. De Mange, for appellee.

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

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

   Mr. Justice Eldredge

delivered the opinion of the court.

James J. Crosby, a resident of Bloomington, McLean county, Illinois, was accidentally killed on November 14, 1914, while engaged in his employment as switchman for the Chicago & Alton Railroad Company. He left him surviving, his mother, Mary C. Riley, and several brothers and sisters, and also appellant, Pearl Bevan Crosby, now Pearl Bevan Lincoln, as his alleged widow. The Chicago & Alton Railroad Company paid to the then administrator of his estate in settlement of the claim for damages on account of his death the sum of $2,500.

Appellant, before she married Crosby had been previously married to one John S. Bevan, by whom she had one child who has always lived with her. Since the death of Crosby she has married again.

In the course of the administration of Crosby’s estate in the county court, Mary C. Riley, his mother, filed a petition for the distribution of the $2,500, which comprised all the assets of the estate, and averred therein that the deceased left no widow and that his brothers and sisters had assigned their respective interests to her, and that she, as mother of the deceased, and assignee in the instrument referred to, was entitled to the entire fund. The county court found from the evidence that appellant was the widow of the deceased and as such entitled to the assets of the estate, and entered an order of distribution accordingly. On appeal to the circuit court, it was held that appellant was not the widow of the deceased and that Mary C. Riley, his mother, was entitled to the fund.

The Chicago & Alton Railroad Company in the circuit court made its motion for leave to file an intervening petition, averring that it had" paid said sum of $2,500 to the administrator under the belief that appellant was the lawful widow of Crosby, and that if she was not the lawful widow there was no other person legally entitled to receive the money, as there was no other person to whom said Crosby contributed who was dependent upon him for support", and asked that said $2,500 be returned to it. This motion was denied.

Two reasons are assigned by appellant why the judgment of the circuit court should be reversed: (1) that the evidence establishes that appellant was the lawful widow of James J. Crosby deceased; (2) that the court erred in overruling the motion of the Chicago & Alton Railroad Company for leave to intervene.

Appellant testified that she obtained a decree of divorce from her first husband, James S. Bevan, November 17, 1910, in the circuit court of McLean county; that on December 17, 1910, she and James J. Crosby went to the City of St. Louis, Missouri, and were married there on that day; that prior to that day she and Crosby were living in Bloomington and were residents of the State of Illinois, and that he was á switchman employed by the Chicago & Alton -Railroad Company; that he resigned that position when they went to St. Louis; that before she married Crosby she had consulted a lawyer who advised her that if they lived outside of the State it would be a legal marriage; that she and her' husband intended to stay in St. Louis, but he could not get work there, so after living in that city nearly 4 months she and her husband returned to this State where he resided until his death and she has resided ever since; that when she and Crosby applied for their marriage license in St. Louis, they gave their residence as W. Monroe St., Bloomington, Illinois.

The marriage license issued to them and also the certificate of marriage, executed by the minister who performed the ceremony, each mentions the place of residence of appellant and Crosby as the City of Bloomington, Illinois. The above was all the evidence introduced on the question of the marriage of appellant.

Section 1-A, ch. 40, Rev. St. (J. & A. ¶ 4216) provides in substance that in every case in which a divorce has been granted neither party shall marry again, except with each other, within one year from the time the decree was granted, and if either party does marry again within such time the marriage shall be held absolutely void. It is contended, on behalf of appellant, that where the celebration of the marriage is once shown, everything essential to its validity will be presumed until the contrary is shown, and that the marriage being lawful in Missouri must be recognized as lawful in this State. The general rule prevailing in this State is that the law of the State where the marriage takes place must control as' to its validity, and if valid where celebrated it is valid in this State. Reifschneider v. Reifschneider, 241 Ill. 92; Lyon v. Lyon, 230 Ill. 366; McDeed v. McDeed, 67 Ill. 545. It is also the rule that a marriage, invalid. where it is celebrated is invalid everywhere. Reifschneider v. Reifschneider, supra; Canale v. People, 177 Ill. 219. But the general rule that a marriage valid where it is celebrated is valid everywhere has two exceptions, viz., marriages which are contrary to the laws of nature, as generally recognized by Christian countries, and those which are declared by the positive law to have no validity. Wilson v. Cook, 256 Ill. 460. In this last case the court, after citing several cases sustaining the doctrine announced, said: “These cases sustain the principle that where a State has enacted a statute lawfully imposing upon its citizens an incapacity to contract marriage by reason of a positive policy of the State for the protection of the morals and the good order of society against serious social evils, marriages contracted in disregard of the prohibition of the statute, wherever celebrated, shall be void.” In the case of People v. Prouty, 262 Ill. 218, in passing on the statute, it is held: “In addition to this punishment the marriage shall be held absolutely void; and this result follows, so far as the rights of the parties within this State are concerned, even though the marriage should be performed in some other jurisdiction.”

The marriage having taken place between two citizens of" this State contrary to the declared public policy of this State, no presumption arises that it was a lawful marriage under the laws of the State of Missouri. The statutes of the State of Missouri were not introduced in evidence and there is no common law governing divorce. In the absence of proof of the statute laws of another State they will be presumed to be the same as the lex fori where there is no common-law rule applicable or legal presumption to the contrary. Nehring v. Nehring, 164 Ill. App. 527.

If the presumption could be indulged that the marriage was lawful under the law of the 'State of Missouri, yet that would not make it lawful in this State >1 if the parties went to Missouri to be married solely for the purpose of evading the laws of this State. Wilson v. Cook, supra. The only evidence tending to show that appellant and Crosby intended in good faith to become citizens of that State is the bare statement of appellant in her testimony that such was the fact. While they staid in St. Louis over 3 months, still during that time Crosby had no employment and there is no evidence to show that he seriously sought to procure any nor of any other fact tending to prove an intention to actually establish a residence and become a citizen of the State of Missouri. If the validity of such a marriage depends upon the good faith of the parties to become actual residents of the State _ wherein they were married, then there must be more proof of that good faith than the mere statement that such was their, intention, otherwise the statute could be readily ignored and avoided by parties within its inhibition going to another State to be married, residing there a few days or months, and then returning to this State and claiming immunity from its provisions on the ground that at the time of the marriage they intended to become. citizens of the State where it was consummated but subsequently changed their minds and decided to again become residents of this State. The fact that appellant and Crosby stated to the officer from whom they procured their license to marry and to the minister who performed the ceremony that they were residents of the State of Illisnois conclusively shows that at the time they were ¡married they considered themselves residents of this IState.

The contention of appellant that the judgment should be reversed because the court erred in denying the motion of the Chicago & Alton Railway Company for leave to file an intervening petition cannot be sustained. If the court committed error in this regard the only one who can complain of it is the Chicago & Alton Railroad Company, which is not a party to this appeal.

The judgment of the circuit court is affirmed.

Affirmed.