text:
    Mary E. Stauber, Appellee, v. Leo Stauber, Appellant.
    Gen. No. 5596.
    1. Appeals and errors — effect of appeal as distinguished from, writ of errar. An appeal does not search the entire record as does a writ of error. An appeal simply causes the court to determine the propriety of the particular order appealed from.
    2. Divorce — when order granting alimony not reduced. Unless it is apparent that the court has committed error in determining the amount of alimony to be paid, an appellate court will not disturb the award made.

      Divorce. Appeal from the Circuit Court of La Salle county; tbe Hon. Edgab Eldbedge, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    McDougall & Chapman, for appellant.
    Lucey & Larkin and Boys, Osborn & Griggs, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

On May 13, 1910, Mary E. Stauber filed a second bill against her husband, Leo Stauber, for a divorce and for the custody of their children, and'for support, and for an accounting as to her property in the hands of her husband. The bill charged many instances ' of great brutality by the husband against his wife, and drunkenness for more than two years, and set up the property rights of the parties. On June 21, 1910, she obtained an order that her husband pay her $1,200 for the support of herself and her children during the pendency of the suit and for solicitor’s fees. On December 3, 1910, there was a hearing and a decree of divorce and certain findings as to the property, and she was given the care, control and education of the four children of the marriage, all girls, the oldest of whom was born in 1903 and the youngest in 1909, and she was given the household goods, and the husband was required to pay the complainant $2,000 per year, commencing December 10, 1910, and payable quarterly in advance, till the further order of the court. A certificate of the evidence at that hearing was prepared and filed. There were further proceedings to enforce payment of alimony. Thereafter, on April 10, 1911, Stauber filed a petition in said cause for the reduction of said alimony. Said petition was heard on April 17, 1911, and was denied and no certificate of evidence was taken showing upon what proofs the court acted, An appeal was on that day prayed and allowed from that order. On May 8, appellant moved to set aside the order for an appeal and the order denying appellant’s petition. That motion was heard on May 22, 1911. The court set aside the order allowing an appeal and heard proofs upon appellant’s motion to set aside the order of April 17, denying the petition to reduce alimony, and thereupon refuséd to set aside said order of April 17, and appellant again prayed an appeal from the order of April 17 and that appeal was granted and appellant complied therewith by giving a bond. A certificate of evidence was filed, setting forth the evidence heard on May 22, 1911. The appeal is only from the order of April 17, and the appeal bond so recites. It must be assumed that the proofs heard on April 17, or the showing then made, justified the action of the court in then denying the petition to reduce alimony. The proofs heard on May 22 cannot be used to show that the court was not justified in its order of April 17. Numerous affidavits, introduced by appellant on May 22, were sworn to after April 17. An appeal does not search the whole record, as does a writ of error. The question on this appeal is only whether the court was justified in entering the order of April 17, when that order was entered, and, as the proofs then heard are not preserved, this condition of the record would require an affirmance of the order. But, as a writ of error could hereafter be sued out, which would involve the correctness of the decision of the court on May 22, we have concluded to consider the case upon its merits, as if the evidence heard on May 22 had been heard on April 17. There are assignments of error which question the propriety of the decree of December 3, 1910, in allowing $2,000 per year as alimony, but no appeal was prosecuted from that decree, and, as this is not a writ of error, the propriety of that decree is not before us.

At the hearing on May 22, 1911, it was agreed that the pleadings and the evidence previously taken on other hearings he considered in evidence on that hearing, and said pleadings and evidence were read, together with various affidavits, and there was also oral testimony, and the court refused to set aside the order of April 17. The claim of appellant is that before this bill was filed, he conveyed to his wife property worth about $240,000; that she is in receipt of a large income therefrom and could receive much more therefrom by proper effort, while he is worth but $15,000 and owes $2,500 to a company of which his brothers appear to be the owners; that this property brings him only 5% per annum; that he earns only $75 per month when able to work, and has had a long and expensive illness when he earned nothing. If these are the facts and all the facts, the allowance ought to be reduced.

The parties were married April 17,1901, at Streator. They lived all their married life in a rented house in Streator. After the marriage appellee received from the estate of her father, John Kangley, deceased, checks for various sums amounting in all to $29,259.94 and 115% shares of the capital stock of the Star Coal Company of the par value of $100 per share, or a total from her father’s estate of over $40,000. She endorsed each of these checks and certificates of stock and delivered them to her husband. She testified that she delivered them to him for safekeeping and care for her and for investment in her name. He deposited these checks to his own account in banks. He received seven dividends upon this capital stock and appropriated them to his own use and then surrendered the certificates and took out new certificates in his own name. With $18,000 of appellee’s money appellant purchased a farm of 160 acres in La Salle county and took the deed to himself. When appellee learned that he had taken the deed to himself, she complained and insisted that the title should go to her. He yielded and conveyed the land to her, and afterwards persuaded her to convey the land hack to him. In August, 1909, she filed a bill ag’ainst him for divorce. He induced her to dismiss that bill and resume marital relations with him. One of the considerations which induced her to abandon that suit was that he re-conveyed to her this farm of 160 acres. Before doing so, however, he secretly leased the farm for a year from the following March and took a note from the tenant for the rent, and he afterwards collected that note. She received none of the rent of that farm during the time that they lived together as husband and wife. Beal estate rose in value after this was purchased, and there was evidence tending to’ show that it is now worth $32,000. Appellant introduced evidence tending to show that there is supposed to be a vein of coal seven feet thick underlying this land, and that if such is the fact, and if said coal is of a quality fit for mining, the coal underneath the surface is worth another $32,000; and appellant in his sworn petition stated that, if this land is underlaid by said vein of coal, as he believes, then the fair cash value of that coal is $200,000. Appellee introduced evidence tending to show that no tests have been made upon this land to ascertain whether there is coal underneath the land, nor the character of the coal, if any; that mining to any great extent in the vicinity of this land has been abandoned; and that it would cost $100,000 to open up a coal mine on this farm. Appellant treats the case as if the increased value of the land and the value of this coal, if it has any, is to be considered as something which he has given to his wife. In fact, this land was all bought with her money, and if there has been any rise in value, it is a natural increase which she owns, and, in conveying it back to her, he only conveyed to her that which was hers. It is also obvious that she has no money with which to open a coal mine thereon, and it is proven that coal mining in that vicinity, except in a small way, has been abandoned. "With some of appellee's money and with a part of the certificate of capital stock he bought a farm of 80 acres in Livingston county, and afterwards sold the same and with part of the proceeds bought real estate in the town of Enid, Oklahoma. He conveyed this to his wife, and claims it is worth $8,000. The proof shows that there is great depression in the value of real estate in Enid; that this property is not worth over $5,000, and would bring very much less at a forced sale, and would not bring more than the taxes and the special assessments now a lien upon the land; and that it rents for much less than the annual taxes and annual installments of special assessments thereon. It will therefore be seen that appellant has conveyed back to appellee much less, than he received from her, and that he has also had all the income of her property during all their married life, while she only had her support. .

Appellant testified that when he was married he was worth about $6,000 in horses and cash. He was not able to give any good account of this. The horses appear to have been possessed and used by his father and the alleged money to have been loaned around between his father and his brothers with some of whom he lived, and without any notes given therefor. Ve think it exceedingly doubtful from the evidence if at the time of his marriage he had any property which could have been found by an officer with an execution. He testifies that he now has about $15,000 in securities and that he owes $2,500 to Stauber Brothers Automobile Company. He testified that these securities were in a safety deposit box in a bank at Clinton, Iowa, the key of which box he had left in Iowa. He was unable to tell the name of the bank, but he did produce proof by an officer of a bank in Iowa that he had opened a safety box owned by appellant and found therein such securities. Two young women testified that about April, 1910, appellant showed them a hank hook from some hank in Chicago, showing a deposit in appellant’s name of either $56,000 or $76,000 and that he then told them that he received $8 per day from his deposits in that hank. Appellant testified that he had no such hank book showing such a deposit in any bank in Chicago, but he admitted that he showed them a deposit slip with a Chicago bank, showing $8 interest for that month, and that he told them that he got that much every day, and that he was joking when he said this. Appellee introduced in evidence a book kept by appellant in his own hand, wherein were entered as his property mortgages maturing later than this divorce and some of them not yet matured, the principal of which amounted to $48,188. Appellant introduced evidence tending to show that he had sold and assigned these mortgages. Appellee introduced in evidence a letter from appellant, written since this divorce was granted, in an effort to procure a reconciliation, in which he stated that he had made over $1,000 the previous week in a legitimate business and that he intended to be in a legitimate business the rest of his days. This reference to a legitimate business alluded to the fact that one of his employments had been that of a gambler. Appellant could not deny making this statement as the letter in his own handwriting was in evidence, but he testified that this was a lie which he told to his wife in order to induce her to be reconciled to him. A witness testified that some three years before this hearing appellant told him that he personally owned a large tract of land in Iowa and was negotiating a sale of the same, and that, if he sold it, he would have $20,000 to loan on real estate; that appellant did not afterwards loan $20,000 so far as the witness knew, and that the witness understood that the reason was because the sale of the Iowa land was not consummated. Appellant denied using this language, and gave an entirely different version of the- conversation.

Defendant’s conduct after this suit was begun is worthy of consideration. Shortly after the bill was filed he was served with an injunction thereunder, enjoining him among other things, from withdrawing from any bank any money he had deposited therein. Three days after this injunction was served upon him he went to a bank in Chicago, where he then had on deposit $17,925 of appellee’s money, and withdrew from said bank $17,850 by obtaining a draft payable to the order of a fictitious person. He then left the state of Illinois, went to Iowa, endorsed said draft in the name of said fictitious person to his own order, and got the draft cashed by a bank in Iowa, and remained in Iowa, and gave small checks by which he withdrew the rest of the money in the Chicago bank. Contempt proceedings were begun against him for this disobedience of the injunction and also for his failure to pay $1,200 temporary alimony and solicitor’s fees, under the order of June 21, 1910, but appellant did not come within this state so that the attachment could be served upon him. Thereafter, at the instance of his wife, he was indicted in La Salle county for embezzlement and was extradited to this state; and was then tried and adjudged guilty of contempt in this cause and was ordered committed to the county jail for one year or. until the further order of the court. On April 1, 1911, appellee filed a petition in which she represented that appellant had paid none of the alimony provided in the decree of December 3, 1910, and that he had no real or personal property within the jurisdiction of the court, which could stand as security for the payment of said alimony, and she asked that appellant be required to give a bond with sureties to secure the payment of said alimony. An order to that effect was entered. Appellant paid the $1,200 and paid $1,000 of the permanent alimony and gave the bond required in the sum of $10,000 and was discharged from the contempt proceedings, and seems to have been afterwards discharged from imprisonment under the charge of embezzlement. In other words, appellant paid none of the temporary or permanent alimony except under the pressure of contempt proceedings, and has paid nothing which this bond was given to secure, and the object of this present petition is to avoid the liability which he assumed when he gave that bond, and to release his security thereon.

The order fixing the alimony at $2,000 per year, payable quarterly till the further order of the court, was in effect requiring appellant to return to appellee the rest of her property which he had misappropriated to his own use. We think it is just that he should return at least the principal of all that property. If he has only $12,000 or $15,000 this is really her property and he ought to return it. His account of t-liis manner of life during the continuance of the marriage relation does not indicate to us that he earned any considerable amount himself, or received any considerable amount except as the income from his wife’s property. When he has returned the principal of what he received, very likely this allowance for alimony should be materially reduced, if his own account of his present financial condition is true. When we find that he has apparently represented his financial condition entirely differently to various other persons, we cannot feel sure that his testimony in court on that subject is reliable. We are of opinion that the alimony ought not to be reduced till appellee has been repaid the principal of her estate.

The order is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Dibell

license: Public Domain

text:
    John Boden, Appellee, v. Kewanee Coal & Mining Company, Appellant.
    Gen. No. 5599.
    1. Verdicts — when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    . 2. Verdicts — when answer to special interrogatory not inconsistent with. If a special interrogatory and answer thereto are not such as to preclude other conclusions by the jury which would support the verdict the same are not inconsistent with the. general verdict.
    3. Verdicts — when not excessive. Held, in an action for personal injuries, that a verdict for $11,000 was not excessive where it appeared that the plaintiff before his. injury was a strong healthy maif 36 years of age and earned $2.36 per day and where it further appeared that his left thigh bone was crushed, that he was under medical care for a long period, suffered much pain and sustained permanent injuries.
    4. Instructions — when giving, calculated to mislead mil not reverse. Notwithstanding an instruction has been given which was calculated to mislead it will not effect a reversal where other instructions given preclude the likelihood of such misleading instruction having been prejudicial.
    5. Instructions — when refusal of correct will not reverse. The refusal of a correct instruction 'will not reverse if its contents are substantially contained in another or other instructions given.
    Action in case for personal injuries. Appeal from the Circuit Court of Henry county; the Hon. Emery C. Graves, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    Rehearing denied April 18, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Morse & Demerath, Sturtz & Ewan and John T. Cummings, for appellant.
    N. E. Anderson, Thomas J. Welch and James H. Andrews, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

This case was before us in Boden v. Kewanee Coal and Mining Company, 157 Ill. App. 484, and the main facts are there stated, and need not be repeated here. That was a second trial. Upon a third trial appellee had a verdict and a judgment for $11,000 from which defendant below appeals.

The evidence favorable to appellee tends to show that at the time of the accident he had been working for appellant about two weeks, but had been trimming coal cars only a little over one week; that he did not know that a car had run away on the track next to him; that there had been no runaways while he had worked there; that if Terry said anything to him about the runaway he did not hear it; that while he was trimming the car about 1,200 pounds of coal were dumped into the chute and upon his car in every two-thirds of a minute; that he had to remove from this coal the slate and clay and dirt, and every few minutes had to go to the brake and release it and let the car move forward a few feet, so that the coal from the chute should fall into the part of the car not yet loaded; that while his car was being filled two engines were being operated there, a hoisting engine and the fan engine, each of which made a loud noise; that the coal passing over the iron chute and iron apron made a loud noise; that the air was filled with coal dust from the coal thus emptied into the car; and that all these conditions might well have prevented appellee from seeing or hearing the runaway car and from hearing anything said by Terry; that Bauer occupied a position as vice-principal, knew that the other car had run away, and that the switch where it stopped was in plain view from his elevated station if he had looked that way; that Bauer directed appellee to take the car down and that appellee acted in obedience to the directions of appellant through the vice-principal in taking the car down; that Bauer as well as Deming, the superintendent, knew that cars frequently ran away down the incline; and that, while appellee had been trimming ears, he was the only one who had taken loaded cars west down the incline. This evidence, if believed by the jury, warranted the jury in finding that appellant was negligent in not ascertaining the position of this runaway car before ordering appellee to take his car of coal down the incline, and was negligent in ordering it taken down without ascertaining where the runaway car was, and in not warning appellee that the runaway car was at the switch and to stop his car before it reached that point. Upon some of these matters the testimony favorable to appellee was undisputed and upon others the facts were disputed. "When Bauer gave appellee the order to take this car of coal down the incline, appellee stepped to the west or front end of the car, got down upon the narrow platform with his back to the west and with his right foot in front of the brake standard, placed his left foot upon the dog or clutch, which held the brake, which was then set, released the clutch with his left foot, and thus released the brake, before the empty coming down from the east struck it, so that it would thereby be started in motion by the impact of the empty car, and after the car had gained sufficient momentum to take it down to the place where he was to leave it he then began setting the clutch and gradually tightening his brake to prevent the car from gaining too much speed. Just before he struck the runaway car at the switch, the sole of his shoe became caught between the clutch and the brake and so remained till others took his foot out after the accident. He did not know of the presence of the runaway car at the switch or that any car had gone down the incline except those which he took down, till just as or just before his car struck the runaway car and inflicted the injuries upon him. If appellee had been looking west instead of standing with his back in that direction he would have seen the car at the switch and could have stopped the car upon which he was riding and conld have prevented the collision in which he was injured. Appellant contends that his failure to look ahead was such a lack of due care as prevents his recovering damages for his injuries. We are of opinion that the jury were warranted in finding from all the evidence that the position he occupied while taking down his car was at least the most natural for him to occupy while performing the duty of controlling and retarding the speed of the car, and that, in view of the fact that he had never known of a runaway car and that no car had ever gone down the incline while he had been at that work, except such as he conducted down to its proper place, it was a question of fact and not of law whether he exercised due care. Three juries have found verdicts for appellee, and the last two verdicts have been approved by the trial judge. At the last trial appellant submitted nine special interrogatories to the jury and obtained nine answers deciding the material questions in favor of appellee. We are of opinion that we would not be justified under the evidence in interfering with the conclusions of the jury upon the questions of fact. The first question was this: “Was the leaving of the slack cars at the switch the proximate cause of plaintiff’s injury?” The jury first answered this: “Not within itself.” Upon the demand of appellant the jury were required to retire and answer this question “yes” or “no” and they answered it “yes.” It is contended that this is inconsistent with the general verdict. We are of opinion that this position is not correct, and that that answer does not relieve appellant from responsibility for the accident. The jury did not find that the leaving of the cars there was the only proximate cause of appellee’s injury. It is evident that that and the failure to warn appellee and the order to take the car down without warning him, all combined to produce the injury.

Complaint is made of the giving of the first instruction requested by appellee. It told the jury that if appellee was directed by a vice-principal of appellant to run tbe coal car west upon the track, appellee was not bound to make a critical examination of his surroundings to discover unusual dangers, but had the right to assume that appellant had taken reasonable precautions to protect him from unusual dangers and was using reasonable care to keep the place where appellee ¡lerformed his work reasonably safe. This instruction stated a correct legal proposition, but might be understood by the jury to mean that appellee was not obliged to look ahead as he went down the incline with his car. The court instructed the jury at the instance of appellant in No. 2 that appellee was bound to exercise for his own safety such care as persons of ordinary prudence and intelligence would ordinarily exercise for their own safety under the same conditions; in No. 5 that if appellee could have avoided the injury, by the exercise of ordinary care on his part and failed to exercise such care, he could not recover and that on this question of due care for his own safety the burden of proof was on appellee; in No. 8 that appellee, in order to recover, was required to prove by a preponderance of the evidence several propositions, one of which was that appellee was exercising ordinary care for his own safety at and just before the accident; in No. 9 that, if the injury to appellee was the result of one of the ordinary perils incident to the service he was performing and if such peril was known to appellee or could have been known to him by the exercise of ordinary care, then he cannot recover; in No. 10 that appellant was only required to exercise ordinary care towards appellee and that that was such care as a person of ordinary prudence would exercise under like circumstances and, if appellant exercised ordinary care to avoid injuring appellee, they must find appellant not guilty; in No. 16 that if appellee could by the exercise of ordinary care have avoided the injury and his omission to do so directly contributed to the injury, then he could not recover; in No. 19 that to recover appellee must prove by a preponderance of the testimony that the leaving of the slack cars at the junction of the lump and the slack tracks made it dangerous for appellee to perform his duties and that appellant had notice or knowledge thereof or should have had and that appellee did not know of the danger and had not equal means with appellant of knowing thereof; in No. 20 that, if appellee was so situated that by the use of ordinary care and caution he could have known of the location of the car into which he ran, then it was his duty to have exercised such care and caution and if he did not perform that duty he could not recover. Other instructions, given at appellant’s request, were similar in meaning. We conclude that in view of all these instructions the jury could not have been misled by appellee’s instruction No. 1.

Appellant contends that the court erred in refusing instruction No. 24, requested by it, which was to the effect that if the accident was caused by the negligence both of appellee and of a servant of appellant, the verdict must be for appellant. This stated a correct proposition of law and might well have been given. But the jury were told in many instructions given at the request of appellant and in many different forms, that if appellee was negligent or failed to exercise ordinary care for his own safety, then he could not recover, even if appellant was also negligent, and we are of opinion that appellant was not injured by the refusal of No. 24.

It is contended that the judgment is excessive. When appellee was injured he was a-strong, healthy man, 36 years of age, weighed 220 pounds, and earned $2.36 a day. His left thigh bone was crushed. He was in a hospital eight or nine weeks, and suffered pain continually, and had daily service by a surgeon for about 96 days. For about the last three weeks that he was in the hospital he moved about in a wheeled chair, and after he came out of the hospital he walked on crutches and sat about at home with his leg stretched out straight on a board. After five or six months he worked at running an engine at a coal mine where he could sit down and have his left foot elevated on a box and do the work with his hands and his right foot. He did that work about eight months and stopped because the work there was finished. He went to work firing a boiler and shoveling coal and remained at that work only one day, as he could not stand it. He could not walk on crutches and wheel the coal, and suffered pain all the time, and was too weak to do that work. He then went to work at check weighing for the miners, which work he did while sitting down. He continued at that about a month and stopped because his leg was swollen all the time and he could not climb the stairs to the tipple house where the weighing was done. He has had ulcers or running sores on his left leg ever since he was injured, 35 or 40 in all. There has been a constant discharge of pus and blood from these sores. Small particles of bone have come out a number of times since. His general health has been much affected. Some nights he does not sleep at all on account of fever, and twitching and throbbing in his leg. The leg has to be regularly dressed with a salve and washed with alcohol, and the salve, alcohol, bandages and gauze cost $6 or $7 per month. His physician’s bill was $300 which he paid, and he paid $100 upon his hospital bill. He weighs from 180 to 190 pounds; at the time of the trial was unable to do any work; and his leg was not as well as the year before. The leg is bowed about three inches and is an inch and a half shorter than the other leg and his knee is stiff. The surgeon who attended him at the hospital testified that the continued supperation was due to infection which appellee got at the hospital. Another surgeon testified that his condition was due to necrosis or death of the bone, resulting from the fracture received at the time of this injury, and that the results were liable to continue indefinitely, and the discharge from the leg to be chronic. Appellee was injured on May 9, 1906, and the last trial was in February, 1911, nearly five years after the injury. We are of opinion that the verdict and judgment are not unreasonable in amount for the injury and the pain and the suffering already sustained and that which is likely to follow during the rest of appellee’s.life.

The judgment is therefore affirmed.

Affirmed.


text:
    Ernest Ohlmeyer, Appellee, v. American Steel & Wire Company of New Jersey, Appellant.
    Gen. No. 5601.
    1. Pleading — what defense available under a general issue'. Release may be shown under the general issue.
    2. Release — what essential to avoid at law. In an action at law a release cannot be avoided except by proving fraud in securing its execution, such as misreading it to the party signing it, or the surreptitious substitution of one paper for another or some trick or fraud in procuring the signature, or where it is represented to a signer who is unable to read that the paper is- of some other character or for some other purpose.
    Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Charles B. Campbell, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed.
    Opinion filed March 13, 1912.
    Snapp & Heise and John R. Cochran, for appellant; Knapp & Campbell, of counsel.
    E. C. Hall, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

The American Steel and Wire Company of New Jersey, appellant, operates a wire mill at Rockdale near Joliet. In a certain department of the mill wires are run from reels through a covered receptacle or tank containing a certain liquid, and then through other liquid in another tank where it is galvanized, and then through another tank where it passes through hot water. Ernest Ohlmeyer, appellee, was employed in the same room as a scrap gatherer. The men who take care of the wire while it is passing through these tanks are called ‘Heelers”. It was customary, when there was a vacancy in the position of reeler, to promote a scrap gatherer to that position, as the reeler received a little better pay, and the scrap gatherer, having worked in the same room, would have seen how the duties of reeler were performed. On March 5, 1909, appellee came to that department to perform a night’s work as scrap gatherer, and, one reeler being absent, he was put into the position of reeler. During the night he had occasion to put his right hand into the electrogalvanizing solution through which the wires were being drawn. About an hour later he found that his right hand was swollen and painful. He complained of this to his superior officer and was set at other work, for the rest of the night. For three succeeding days his hand was dressed by the company surgeon, at whose suggestion he afterwards went to a hospital, where he stayed a week and then went home to his sick wife and then returned to the hospital and remained four weeks longer. He claims that his wrist has since been weakened so that he is unable to do some kinds of manual labor. He brought this suit against appellant to recover damages for this injury. Before he put his hand in the solution that night, he had cut or scratched it, and the declaration charged that his hand was cut and poisoned by reason of the negligence of defendant, but in tbe proof there is nothing to show how he cut or scratched his hand or that appellant was in any way responsible therefor. The declaration charged that the contents of the galvanizing tank were poisonous to human flesh and that.appellant knew it, and that appellant set plaintiff at that work without instructing or warning him as to the danger and without furnishing him any rubber gloves or other protection against this dangerous solution, and without any cover over the tank. Appellant pleaded not guilty. There was a jury trial and a verdict awarding appellee $300 as damages. Motions by appellant for a new trial and in arrest of judgment were denied and appellee had judgment, from which defendant below appeals. Appellee has filed a single typewritten brief, alleging the financial inability of appellee to present a brief in compliance with the rules. In said brief authorities are cited in support of the instructions, and it is asserted that the verdict was based on conflicting proof, and that the record contains no reversible error, and that the verdict should not be disturbed.

There is no proof that the solution in the electrogalvanizing tank was poisonous to human flesh, except the fact that after appellee had scratched or cut his hand in some way unknown to him, he placed his hand in the solution and an hour afterwards it began to swell and pained him and the hand became infected and supperation followed. He denied that he had ever had blood poisoning before, but the proof is clear that he had other scars, and that he told numerous witnesses that he had had blood poisoning before; and the attending surgeon testified that the inflamed condition did not yield readily to his treatment and he thereupon questioned appellee and learned from him that he had previously suffered from blood poisoning; and that he thereupon gave appellee alteratives and blood tonics and his condition rapidly improved.- Appellee denied that he made those statements to the surgeon and to various other witnesses. Appellant’s proof showed that this tank was about 12 inches deep and 80 feet long’ and many wires passed through it at the same time, each wire through a separate mechanism, and that the speed of the wires was from 18 to 30 feet per minute; that the body of the solution was water, and that for each gallon of water there was approximately three pounds of sulphate of zinc and 1 y2 pounds of borax; that this solution, while sufficient for galvanizing, was not transparent, and that it was necessary that it be clear so that the reeler could watch the wires, and that to clear it about 5 cubic centimeters or about 5 small thimbles full of sulphuric acid were added to each gallon of this solution; and that this was the solution that was in this galvanizing tank at the time in question. The proof shows that the wires frequently broke while passing through the tank and that the reeler must then stop the mechanism which caused the movement and put his hands into the solution, draw the broken end of the rear wire forward to the other end and re-unite the wires, and that in doing this the reeler often every day must have his hands in the solution. There was proof by experts that this solution is not poisonous to human flesh and, indeed, that it prevents infection. There was proof by those who had long worked as reelers with this solution that they had their hands in it daily, and sometimes when their hands were cut or scratched, and never were poisoned thereby, but that if there was a cut or scratch, the solution would produce a slight smarting sensation. There was proof that, where from 9 to 20 men had been daily employed for several years as reelers handling the wire through this particular solution, no poisoning had ever resulted to any of the men therefrom, although no gloves or any other protection had ever been used by any one. The declaration complained that the tank was not covered. The first tank through which the wire passed was covered, but at this place it was necessary that the tank, which stood about 36 inches above the ground, should be uncovered so that the course of the wires therein could be under constant observation by the reeler. Not having been favored with an argument by appellee, we cannot know what he might have said in support of this judgment on the facts, but as it appears to us from a perusal of the evidence in the abstract, there is a very strong preponderance of the evidence in the record that this solution was not poisonous to human flesh, and that the infection and blood poisoning from which appellee suffered was not caused by the solution or by appellant, and that he therefore had no cause of action against appellant. The judgment cannot be sustained under this evidence.

Some time after appellee had recovered he sought to get money from appellant. On April 22, 1909, appellant paid appellee $30 by a check and he executed and delivered to appellant an instrument. At the top thereof were the words “Settlement of injuries”, printed in capital letters, and in red ink. Then followed these words in capital letters and in red ink: “Do not sign without understanding.” Then followed the body of the instrument:

“For the sum of thirty dollars, paid to me this day by The American Steel and Wire Company of New Jersey, and for no other consideration or promise, I, Ernest Ohlmeyer, of 1301 Clement Street, Joliet, Illinois, have settled all claims I may or can have against the American Steel and Wire Company of New Jersey arising out of or in any way resulting from the injury suffered by me on or about the second day of March, 1909, while in said company’s employ at its Rockdale works located in Joliet, Illinois.

Witness my hand, at Joliet, Illinois, this 22nd day of April, A. D. 1909.”

Then followed in red ink these words: “Read before you sign.” Appellee signed immediately under neath this, and Fred T. Jenkins and Ernest Harper signed as witnesses. On the back thereof F. Ingraham and Fred T. Jenkins, under date of April 22, 1909, signed the following instrument:

“At the time of signing the within settlement agreement, Ernest Ohlmeyer stated to me that he had read the agreement, that he understood it, and that he was satisfied with the settlement. ’ ’

The payment of the $30 and the execution by appellee of said writing in consideration thereof presents an absolute defense to this action, unless the same has been successfully assailed by appellee. This defense did not have to be set up by special plea, and could be given in evidence under the general issue. Papke v. Hammond Co., 192 Ill. 631, and cases there cited. In an action at law such a release' cannot be avoided except by proving fraud in securing its execution, such as misreading it to the party signing it, or the surreptitious substitution of one paper for another, or some trick or fraud in procuring the signature, or where it is represented to a signer who is unable to read that the paper is of some other character or for some other purpose. The law upon that subject in this state is fully stated and illustrated in Hartley v. Chicago & Alton R. R. Co., 214 Ill. 78, and in the cases there cited. Ingraham was the superintendent of the mill. Appellee testified that before he left the hospital the last time he asked the company surgeon whether he thought Ingraham would give him some money to help pay his rent, which was about four months-in arrears; that the surgeon told him to go to Ingraham and that he would talk with Ingraham over the phone; that he did see Ingraham, and Ingraham went into another room and talked with the surgeon over the ’phone, and then said he would have to write to Chicago first and find out; that at that first interview he asked Ingraham to let him have a little money, so that he could pay his rent, and that he was back four months at $10 per month; that later he went to Ingraham and Ingraham said he could pay him $30 and that would help him to pay his rent; that Ingraham handed him a piece of paper and told him to sign it and then called up the person who made out the checks and told him to bring him a check for $30, and he did; and that appellee signed the paper given him and that the person who brought the check and another party, who was brought in, signed as witnesses; that he took the check and left; that he did not remember whether he signed one or two papers; that he did not read the papers; that they were not read to him by anybody; and that he believed that he was signing a receipt that Ingraham gave him $30 to pay his rent.

Appellee was born in Iowa and attended school there till he was ten years old. He has always lived in Iowa or Illinois. He testified that he was accustomed to read newspapers, by which he apparently meant newspapers in the English language. He had been in several employments which made it necessary for him to read English, notably as a street car conductor, where he had to make out ■ a report of each trip on a printed slip, to do which it was necessary that he be able to read the different printed lines thereon. He read aloud certain parts of this release on the cross-examination. He only claimed that there were large words in English which he could not read. He admitted that he could read the simpler parts of the English print. He claimed that he did not make any attempt to read the paper he signed. He testified that he had stated everything that was said at the interview when he signed this release. He did not state that he was told anything whatever concerning the contents of the paper. He did not testify that any misrepresentation whatever was made to him, he did not claim that he asked to have the paper read to him or that any one undertook to tell him the nature of the paper. He collected the wages due him when he left the plant the morning after he claims he was injured or during that day. When he asked the superintendent for $30 he knew there were no wages due him, and he must have understood that it was paid either as a mere gratuity or to settle something. It is manifest that under the above authorities there was nothing in his testimony to affect the validity of this release in this case. The evidence introduced by appellant on this subject shows by a clear preponderance that this $30 was paid to him in settlement for his injuries and that he so understood it. Ingraham became superintendent some two weeks after appellee was injured and had no personal knowledge of the matter. He testified that on April 19, appellee called at his office and told him that he had sustained an injury at the plant and asked if the company would pay him some money for the injury; that Ingraham replied that it was not customary to make settlements till the employe went back to work; that appellee said that he needed the money and would like to make a settlement then; that he told appellee to come back in a few days; that appellee returned on April 22, and he then told appellee that he would settle with him for $30; that appellee expressed himself satisfied, and In-graham said: “We will make out a release and you can sign it;” and that the release and the check were prepared, and that appellee signed the release in the presence of Ingraham, Jenkins and Harper. Jenkins was the superintendent’s clerk, and testified that he saw appellee sign the release and saw the check delivered to appellee, and heard appellee say that he understood the settlement and was satisfied with it., Harper was the chief clerk at the Eockdale plant and testified that he saw appellee sign the papers and saw the check for $30 given to him, and that after reading the documents himself appellee said he was satisfied, and on cross-examination he further testified that appellee held the release in a position as if he were reading it, and looked it over, and held it in that attitude long enough to have read it. We are of opinion that, under this evidence introduced by appellant, the jury should have found that appellee executed the release with a full understanding of its purport; but that, even the testimony of appellee, when all read, did not tend to defeat the release; and that under the cases above cited, appellee is not entitled to recover.

The judgment is therefore reversed.

Reversed.

Finding of facts, to be incorporated in the judgment: We find that for a valuable consideration, then paid to him by appellant, appellee released the cause of action upon which he brought this suit; and that the negligence charged in the declaration is not established by the proof.


text:
    Lawrence Hammers, Appellant, v. Charles Knight, et al., Appellees.
    Gen. No. 5603.
    1. Dram-shops — what proof sufficient in action to recover for loss of means of support. In an action of tort the allegations of the declaration are divisible in their nature and if enough of the facts alleged in the declaration are proved to constitute a cause of action, there can be a recovery.
    2. Dram-shops — what proof sufficient to recover for loss of means of support. Proof by a plaintiff that the defendants sold or gave the plaintiff’s father intoxicating liquors which caused the intoxication and that in consequence of such intoxication he killed himself and thus injured the plaintiff in his means of support establishes a cause of action authorizing a recovery. So, too, if the plaintiff proves that the defendants sold or gave to the plaintiff’s father intoxicating liquors by the use of which he became intoxicated and crazed and violent and possessed of a suicidal mania and because of that mental condition he killed himself and injured the plaintiff in his means of support, this also would establish a cause of action.
    3. Dram-shops — what does not preclude recovery in action for

      Toss of means of support. In order to recover under the dram-shop act the intoxication caused by the defendants need not be shown to be the sole cause of the injury resulting.
    4. Dbam-shops — effect of failure of proof as to part of the defendants in action for loss of means of support. In actions of tort a plaintiff is not required to prove that each defendant is guilty but may prove that a part of them are guilty and may have a verdict against so many of the defendants as the proof warrants.
    5. Evidence — what not competent as dying declaration. A note written by a party prior to committing suicide if not part of the res gestae is not competent as a dying declaration.
    Tort. Appeal from the Circuit Court of Henry county;- the Hon. Emeby C. Geaves, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 13, 1912.
    N. F. Anderson and James H. Andrews, for appellant.
    Sturtz & Ewan, for appellees.
   Mr. Presiding Justice Dibell

delivered tlie opinion of the court.

Appellant, a minor, by his next friend, brought this action against certain saloon keepers and the owners of certain buildings in which saloons were kept, for the injury to his means of support by the intoxication and consequent suicide of his father Edward Hammers, which the declaration charged was caused by liquors sold and given to said Hammers by the defendants who kept saloons. A demurrer was sustained to the original declaration, an amended declaration of two counts was filed and afterwards an additional count, and upon these issues were joined. At the first trial the jury disagreed, and at a second trial, (the suit having been at different times dismissed as to the owners of the buildings), the defendants who were saloon keepers had a verdict. A motion for a new trial was overruled and they had judgment and plaintiff below appeals.

The first count of the amended declaration, after various other allegations, charged that the appellees sold and gave intoxicating liquors to Hammers in divers quantities and at various times, which he drank and thereby became intoxicated, and that Hammers, being so intoxicated, in consequence of said intoxication became crazed and violent and possessed of a suicidal mania, and by reason of such intoxication and consequent mental condition shot and mortally wounded himself with a pistol loaded with powder and leaden ball and died in consequence of such shooting and wounding, which shooting, wounding and consequent death was caused by said intoxication, and that thereby appellee was injured in his means of support. The second count was like the first, with the additional averment that Hammers was an habitual drunkard, as defendants well knew, and yet they sold and gave him intoxicating liquors as aforesaid. The additional count was similar but charged that by reason of the drinking of said intoxicating liquors so sold and given him by appellees, Hammers was caused to continue in a state of intoxication and in consequence of such intoxication became crazed and violent and possessed of a suicidal mania, and by reason of such intoxication and said continuation thereof and said consequent mental condition, shot and killed himself which shooting, wounding and consequent death were caused by said intoxication.

By instructions given at the request of appellees, the jury were in effect told that to entitle appellant to a recovery all the allegations above set out must be proved by a preponderance of the evidence, and that it must be proved that appellees sold Hammers intoxicating liquors on the day of his death and that he thereby became intoxicated and continued to be intoxicated till he shot himself, and that he became crazed and violent and possessed of a suicidal mania, and that because of such intoxication then existing and because of said mental condition, he killed himself, and that, if any of these conditions were absent, there conld be no recovery. The court refused instructions requested by appellant, which indicated that not all of these conditions must be proved to authorize a recovery. In actions of tort the allegations of the declaration are divisible in their nature, and, if enough of the facts alleged in a count of the declaration are proved to constitute a cause of action, there can be a recovery. 1 Chitty’s Pleading 305; City of Rock Island v. Cuinely, 126 Ill. 408; C. & G. T. Ry. Co. v. Spurney, 197 Ill. 471-477; Postal Tel. Cable Co. v. Likes, 225 Ill. 249. We are of opinion that proof by appellant that appellees sold or gave Hammers intoxicating liquors which caused his intoxication and that, in consequence of such intoxication, he killed himself and thus injured appellant, in his means of support, would establish a cause of action authorizing a recovery. So too, if appellant proved that appelleessold or gave Hammers intoxicating liquors, by the use of which he became intoxicated and crazed and violent and possessed of a suicidal mania, and because of that mental condition he killed himself and injured appellee in his means of support this also would establish a cause of action.

By instruction No. 15 given at the request of appellees, the jury were told that even though immediately before and at the time Hammers took his own life he was intoxicated from the use of liquor procured from appellees, still if in destroying his own life he was actuated by a feeling of jealousy towards his wife and if he would not have taken and did not take his life by reason of such intoxication alone, then the jury should find the defendant not guilty. By the 18th instruction, given at the request of appellees, the jury were told that if there was some other cause aside from the intoxication of Hammers, sufficient to be deemed the cause of his death and which was in fact the efficient proximate cause of his death, then plaintiff could not recover. These instructions were based upon evidence tending to show that Hammers was jealous of his wife and had recently tried to kill her and left a note accusing her of unfaithfulness to him, the contention of appellees being that he killed himself because of jealousy and not because of intoxication. It does not follow, if Hammers was jealous of his wife and that jealousy was operating upon his mind at the time he killed himself, that such jealousy was therefore the sole or efficient cause of his suicidal act. It may well have been that his jealousy was produced or influenced by his intoxication. The instructions given for appellees tended to lead the jury to understand that the intoxication must have been the sole cause of the suicide and that if any other cause co-operated therewith to cause him to commit suicide, then there was no right of recovery. On this subject in Schroeder v. Crawford, 94 Ill. 357, the Supreme Court expressed the following views:

“If a person, because of being intoxicated, lies down upon, or falls on a railroad' track and is unavoidably run over and killed by a passing train of cars, the result is in consequence of the intoxication. It is said there was an intervening agency which caused the death, to-wit: the train of cars; that that was the proximate cause, and the intoxication but the remote cause, and that the proximate cause is only to be looked to. So it might be said where one from intoxication lies down and becomes frozen to death, or falls into the fire and is burned to death, or is drowned by a freshet, as in Hackett v. Smelsley, 77 Ill. 109, that the intervening agency of frost, fire and the freshet occasioned the death and was the proximate cause, and thus no liability under this statute. This would be construing away the statute in defeat of its purpose. It was not the intention that the intoxicating liquor alone, of itself, exclusive of other agency, should do the whole injury. That would fall quite short of the measure of remedy intended to be given. The statute was designed for a practical end, to give a substantial remedy, and should be allowed to have effect according to its natural and obvious meaning. Any fair reading of the enactment must be that in the instances above, as well as the present, the death would have been in consequence of the intoxication within the undoubted intendment of the statute.”

This was approvéd in Triggs v. McIntyre, 215 Ill. 369. We therefore hold that under this statute it was not necessary for plaintiff to show that the intoxicating liquor alone, of itself, exclusive of every other agency, did the whole injury. These instructions therefore were calculated to mislead the jury. The effect of instruction No. 5 given at the request.of appellees was to tell the jury that unless appellant proved by a preponderance of the evidence that all the appellees sold or gave Hammers intoxicating liquors on the day of his death, 'from which he became intoxicated, they should find each defendant not guilty. In actions of tort a plaintiff is not required to prove that each defendant is guilty, but may prove that'a part of them are guilty, and may have a verdict against so many of the defendants as the proof warrants. Other instructions given stated the correct ruling upon this subject, but instruction No. 5 directed a verdict and it is the law that an erroneous instruction which directs a verdict cannot be aided by other instructions.

Appellees offered in evidence the following paper:

“good Buy this is the last report Ed Hammers can give My wife is a hore sind by Ed Hammers.”

Appellant objected on the ground that it was immaterial, was not shown to be a part of the res gestae, and was hearsay. The objection was overruled and appellant excepted. There was proof tending to show that Hammers went to his home, in an intoxicated condition on the evening of his death, after spending much time that afternoon in the saloons of appellees; that he quarreled with and drove his wife from the house and went to the house, shut and locked the door, pulled down the window shades, and about an hour thereafter the shot was heard which caused his death; that when the house was thereafter entered this piece of paper was found on a stand in the room where the dead body lay; and that it was in the handwriting of Hammers. There was other evidence that the paper was not in Hammers’ handwriting and that the period which elapsed between the locking of the door and the shooting was much less than one hour. There was evidence that Hammers was jealous of his wife and before he went into the house that evening had accused her of being in the alley with some man. The only purpose for which this paper could be admissible would be for its supposed tendency to show the state of mind in which Hammers was when he wrote it at some period of time before he fired the fatal shot. There was no proof that it was written at the time of the shooting. If Hammers was wild or crazy because of intoxication, the charge in this paper may have been made by him because of his intoxicated condition. Hammers could not prepare and leave a paper which would be evidence of the truth of what he wrote, either against appellant or appellees. The natural tendency of this paper as evidence was to lead the jury to believe that he killed himself because he considered his wife unfaithful, whereas it might with equal propriety be concluded that he wrote the paper and harbored in his mind the charge therein contained because he was intoxicated and frenzied with drink. The impropriety of admitting the paper may be illustrated by supposing that it had said that he was intoxicated; that this intoxication had been produced by intoxicating liquors sold to him that day by appellees; and tbat be was about to ldll bbnself because of tbat intoxication. Sucb a paper would be just as illustrative of bis state of mind as tbe one put in evidence, but it is obvious that it would not be competent evidence against appellees. We conclude tbat it should not have been admitted.

For these errors tbe judgment must be reversed and the cause remanded.

Reversed and remanded.


text:
    Arthur Saltzer, Appellee, v. Alexander Supply Company, Appellant.
    Gen. No. 5606.

      Damages — what may he recovered in action for wrongful discharge. An employe discharged without cause “may treat the contract of hiring as continuing and bring an action for a breach of the contract of employment against his employer for discharging him, and if the suit is not commenced or if commenced before but not tried, until his term of employment has expired he may recover the contract price of his wages, less what he has earned or by reasonable diligence could have earned in other employment subsequent to his discharge.”
    Action commenced before a justice of the peace. Appeal from the Circuit Court of Stephenson county; the Hon. Richakd S. Fabbahd, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    Stearns & Zipf, for appellant.
    Boscoe J. Carnahan, for appellee; Bobert P. Eckert, of counsel.
   Mr. Presiding Justice Dibell

delivered tbe opinion of tbe court.

Under tbe date of January 12,1910, appellant as tbe first party and appellee as tbe second party entered into a written contract whereby appellee was to act as solicitor for merchandise for appellant for 80 days of 8 hours each, beginning about January 17, 1910, and ending about April 20,1910, for a consideration therein named. Appellee paid appellant $5.00 for an agent’s outfit and began work under the contract. Thereafter he conceived that appellant had violated the contract and he thereupon stopped work and, on February 7, 1910, brought this suit against appellant to recover for a breach of the contract. Before the justice he had. a judgment for $25. Appellant appealed to the Circuit Court where, upon a trial without a jury, there was a finding and a judgment against appellant for $175, from which it prosecutes this appeal; The litigated questions are whether .appellee was justified in ceasing the work under the contract, and if so, whether the proof justified the damages awarded.

In regard to paying for the goods for which appellee obtained orders the contract provided that he was “to order and deliver the goods reported sold; to pay for said goods as soon as delivered to customers and for all ordered within 20 days after shipment.” He took and sent in some orders. Appellant refused to fill the orders, but by certain order blanks then sent him and by correspondence required that he should remit the cash with the order, and appellant would send the goods freight prepaid on orders amounting to $55 or more when the cash accompanied the order, or appellee should remit 20% with the order, or $5 if the order was less than $50, and have the goods sent C. O. D., or appellant should send to a bank a draft on appellee for the remaining amount due with bill of lading attached, or for the agent to procure the endorsement of some responsible merchant or some business man who was favorably reported by the commercial agencies, or that the agent obtain the special endorsement of some one not a business man, who owned property worth $1,000 over all debts, liabilities and exemptions, or to remit 20% of the order in advanee and have the goods sent C. O. D. by express, or to adopt the mail order system, with payment in advance. The meaning of the contract is plain that appellee was to send the orders which he took to appellant, that appellant was to ship the goods to appellee, that appellee was then to deliver the goods to the purchasers and collect the pay when he delivered the goods, and remit the price to appellant, and that, in any event, he was to remit the price within 20 days after the goods were shipped by appellant, whose place of business was Chicago. Appellant refused to perform this contract, after appellee had obtained and sent in orders. . Appellant’s demand for cash or security before shipping the goods was a violation of the contract and justified appellee in cancelling the orders sent in, and in refusing to work longer under the contract, and in bringing a suit for the breach thereof.

The contract provided that upon the completion of 80 days’ service, if appellee’s commissions did not amount to $200 appellant would pay him in cash the deficiency. If he had completed the contract his compensation would necessarily have been at least $200. He testified that all that he was able to earn during that period was $25. This was practically undisputed. His damages therefore for a breach of the contract upon the basis of the compensation fixed by the contract was $175. The suit was begun before the expiration of the 80 days, but was tried in the Circuit Court long after that time had expired. We discussed the rights of the parties in such a case in Doherty v. Schipper & Block, 157 Ill. App. 413. In affirming that judgment the Supreme Court in Doherty v. Schipper & Block, 250 Ill. 128, said that an employe, discharged without cause, “may treat the contract of hiring as continuing and bring an action for a breach of the contract of employment against his employer for discharging him, and if the suit is not commenced or if commenced before but not tried, until Ms term of employment has expired, he may recover the contract price of Ms wages, less what he has earned or by reasonable diligence could have earned in other employment subsequent to Ms discharge.” As this case, though begun before, was not tried in the Circuit'Court till after the term of employment had expired, it was proper for the CircMt Court to award $175 damages under the proofs. Appellant offered certain propositions of law, one of which was given and the others refused. We are of opinion that these propositions were correctly refused, but if they were not, we tMnk the judgment should not be reversed, inasmuch as it is supported by the evidence. The 7th proposition sought to obtain the benefit for appellant of the following circumstance : After appellee had obtained his judgment before the justice but before the expiration of the 80 days, he was in Aurora and met an acquaintance and told her of his having started to canvass for tMs company, which made a specialty of shears. She asked if they dealt in left handed shears. He was unable to answer but said he would write to appellant for her on the subject, and he did so and ordered for her a pair of such shears,, and appellant sent the shears to the lady. It is clear that he did not send this order under the contract in question nor as the agent of appellant, but wrote simply for the accommodation of this acquaintance.

The judgment is affirmed.

Affirmed.


text:
    Herman Hollstrom, Appellee, v. Forest City Insurance Company, Appellant.
    Gen. No. 5608.
    1. Insurance — when defense of encumbrance existing prior to application unavailing. In an action upon two insurance policies, held, that if prior to the second application the agent of the company had notice of an existing- encumbrance upon the property covered the defense predicated upon the existence of such encumbrance was unavailing.
    2. Insurance — when mortgaging after issuance no defense. If the agent of the company is notified that the insured has mortgaged the property covered and the company does not cancel the policy and return the unearned premium, a defense predicated upon such mortgaging will be deemed to have been waived.
    3. Insurance — when second mortgaging after issuance no defense. If after a policy has been issued the insured mortgages the property covered and the insurance company does not elect to cancel the policy and return the unearned premium after it has received notice of such mortgaging, the giving of the second mortgage by the insured to secure the debt covered by the first mortgage, will constitute no defense to an action upon the policy.
    4. Insurance — when existence of mortgage at time of issuance no defense. If after one policy has been issued the insured mortgages the property covered thereby and the company upon notice of such mortgaging does not cancel the policy and return the unearned premium the issuance by it of a second policy with knowledge of such mortgage upon the property covered by the second policy will preclude a defense predicated upon the failure of the application to recite the existing mortgage.
    Assumpsit. Appeal from the Circuit Court of McHenry county; the Hon. Charles H. Donnelly, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    Rehearing denied April 18, 1912.
    D. T. Smiley, for appellant.
    David E. Joslyn, for appellee; Mullen & Hoy, of counsel.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Appellee recovered a verdict and a judgment against appellant for $2,757.50 upon two policies of insurance which appellant had issued to appellee on certain horses, cattle and other chattels against loss by fire. After some special pleading it was stipulated that all pleadings necessary were to be considered as filed. Each policy was preceded by an application in which, in answer to questions, it was stated that the property was not encumbered and that appellee was the sole owner. Each policy stated that the statements in the application were made a warranty and a part of the policy and that, if any false statements were made in the application, the policy should be void, and if, without the consent of the secretary endorsed on the policy, any encumbrance has been or shall be executed on any part of the insured property, or if any change takes place in the title or interest of the assured, or if the assured should not be the sole owner of the property, the policy should be void. The application for the first policy was dated April 4, and the policy was dated April 11, 1905. On November 16, 1905, appellee gave a chattel mortgage upon a part of the property to Thomas Niles to secure the payment of a note for $950 two years after date with interest at six per cent, per annum, which mortgage was recorded November 17, 1905. The application for the second policy was dated March 27, and the second policy was dated April 2, 1906. On October 31, 1906, appellee executed another chattel mortgage to Miles securing the same note, upon two horses not named in the first mortgage, and this mortgage was recorded. The fire which occasioned the loss was on January 12,1907. The consent of the company to these mortgages was not endorsed on the policies by the secretary of the company. Appellant contends that by reason of these facts the policies are void.

The main office of appellant is at Eockford, Illinois. The applications for these two policies were taken by Martin Christophers en, an agent of the company for many years, who lived in Rockford and evidently was in- close relations with appellant, since, in answer to appellee’s letter to appellant asking for more insurance because of an increased amount of personal property, Christophersen came to appellee’s premises. The agent testified that when he took the first application he read each question to appellee and wrote down appellee’s answers as he gave them. Appellee testified that the agent did not ask him anything about a mortgage on the property. The first application was true, as there was at that time no mortgage. The policy stated where the personal property was located. At the time of the second application appellee had removed to another farm several miles distant from the first, and he had acquired more personal property and desired additional insurance. The agent came in answer to appellee’s letter. Anderson, appellee’s hired man, testified that he was present and heard the agent say to appellee that he did not see how he had improved so fast and got so much property in so short a time, and that appellee said to the agent that he did not own it all, that he had an $800'mortgage on it, or that he had about an $800 mortgage on it. Appellee testified in chief that when the agent came to his house the second time, he looked over his property and said: “Awful big stock you have got;” that appellee replied, “It is not all mine, I owe Miles about eight or. nine hundred dollars on it;” that the agent replied, “That is nothing; you pay that before long.” It is insisted that this is all that appellee testified that he said to the agent, but this is a mistake. Appellant’s counsel understood by the expression that he used that appellee meant that there was a chattel mortgage on it, for, on cross-examination, he asked appellee, “Where did you tell him you had a chattel mortgage; where were you? ’ ’ to which appellee answered, “In the house, never talk about it before.” Appellant’s counsel also asked appellee this question: ‘É Where did he say you had a nice stock, farm stock, and you said not all yours, you had a mortgage on them?” To this question appellee answered, “I said mortgage $900.” Elsewhere, appellee testified that in answer to the agent’s question, he answered' “Not all mine; I owe Mr. Miles $800 or $900.” Therefore appellee proved by two witnesses that at the time of the taking of the second mortgage he told the agent that there was a chattel mortgage on the property for $800 or $900 and he testified that he gave the name of the mortgagee. The agent testified that nothing was said to him about a mortgage on the property. He, however, admits that in taking the second application he did not put to appellee the questions in the application and record appellee’s answers, but that he copied the answers from the first application, which he had before him. The agent took the first policy then and returned it to the company, in order to have entered thereon the changed location of the personal property from one farm to the other, and soon thereafter appellant returned the first policy to appellee, as well as sent him the second policy.

As there were two witnesses who testified that appellee at the time the second application was taken, did disclose to the agent the fact that he had given a chattel mortgage to Miles for $800 or $900 upon this property, and that the debt was unpaid, the jury were warranted in believing those two witnesses as against the testimony of the agent. It is therefore to be considered here that when the second application was taken the existence of the mortgage upon the property was revealed to the agent, and that the agent contrary thereto, wrote in the second application that there was no mortgage on the property, and also carried back the first policy to Rockford and caused the company to make changes therein regarding the location of the property, and thereafter it was re-delivered to appellee and the second policy was delivered to him. Notice to the agent was notice to the company, and the company was therefore notified that, since the first policy was issued, a chattel mortgage had been placed upon the property which was still unpaid. The company could then have cancelled the policy and returned the unearned premium, but, as it did not do so, it waived the condition and is liable under the policy. Phenix Ins. Co. v. Grove, 215 Ill. 299. It was held in the case last cited that, although a policy requires that a waiver shall be endorsed on the policy in writing to be effective, still that condition may itself be waived. Therefore, as the company re-issued the first policy with knowledge of the first chattel mortgage and did not cancel the policy and return the unearned premium, it cannot insist that the first policy is void because of the first chattel mortgage. So too, as the fact of the first chattel mortgage was revealed to the agent when he took the application for the second policy, it cannot be avoided, because of the first chattel mortgage. Provident Life Society v. Cannon, 201 Ill. 260, and cases there cited. The law recognized in this state is thus stated in Firemen’s Ins. Co. v. Horton, 170 Ill. 258:

“Where the insured in a fire insurance company makes statements to the agent of the company who solicits the insurance, of facts which might, under the terms and conditions of the policy, avoid it if omitted, and the agent does not state such facts, the insured will be as fully protected as though such facts or conditions had been noted in the application or the policy. In other words notice to an agent of an insurance company of facts which might otherwise avoid the policy will be considered as notice to the company and as having been waived by the company.”

It was there held that as the agent of the insurance company was notified that there was a chattel mortgage on a part of the insured property, the insurance company could not avoid payment on account of a similar clause in the policy to that there sued on. We are of opinion that the giving of the second chattel mortgage did not invalidate the policies for two reasons : (1) it did not increase the risk or hazard, for it was only given to secure the same debt as that secured by the first mortgage; and (2) the course pursued by the company in issuing the second policy and re-issuing the first policy after it was informed of the existence of the first chattel mortgage, and the statement by the agent to appellee, “That is nothing, you pay that before long,” was calculated to lead appellee to understand that the giving of a chattel mortgage to secure his debt to Miles for a part of the stock was not considered by appellant as affecting the insurance in any way, and he might reasonably conclude from the course of conduct of appellant and its agent that there was nothing in his giving another mortgage to secure the same debt which would affect his insurance.

Appellant complains of the refusal of four instructions, requested by it. Bach of these instructions required that the consent of the company to the encumbrance should be endorsed on the policy in order to prevent the policy from being invalidated by the giving of a mortgage, and it ignored the evidence that the agent was informed of the existence of the first mortgage and thereafter the second policy was made out and delivered and the first policy was re-delivered. Under the law as above stated, they were properly refused. Appellant complains of the giving of certain instructions requested by appellee. When all are considered, they are practically in harmony with the views herein expressed. One or two of them were not as specific as they might have been, but when all the given instructions are read, we do not think the jury could have misunderstood their meaning and application. We think it not necessary to extend this opinion by setting them out and discussing them in detail.

The judgment is therefore affirmed.

Affirmed.


text:
    Mima Woltzen, Appellee, v. A. H. Wieman, Executrix, Appellant.
    Gen. No. 5609.
    1. 'Verdicts — when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    2. Statutes — Title of construction as to inconsistent provisions. Where two inconsistent provisions become the statute law at the same time, the specific prevails over the general.
    3. Practice — section 52 of Act construed. The “execution” referred to in section 52 of the Practice Act required to be proved by the plaintiff because of a verified denial is modified by virtue of the Act of 1907 so that it no longer requires proof of delivery where the instrument is not in the possession of the signer.
    Contested claim in court of probate. Appeal from the Circuit Court of Stephenson county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    E. E. Tiffany and O. E. Zipf, for appellant.
    Witte & Manus, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Mrs. Mima Woltzen filed a claim against the estate of her deceased grandfather, John Everts, in the County Court of Stephenson County, upon the following instrument:

“$1000.75 1907.
Within three months after date I promise to pay to the order of Mima Woltzen the sum of One Thousand seventy-five dollars after my death to receive.
Value received with interest before and after maturity at the rate of 5 per cent, until paid. Interest payable annually. Jan Everts.
Due two months from my death.”

The executor filed an affidavit stating his belief that said note was not made or delivered by said John Everts and that the signature thereto was not the genuine signature of John Everts. There was a jury trial and a verdict for appellee and a judgment allowing the claim and an appeal by the executor to the Circuit Court. On a jury trial in the Circuit Court the issues were found for appellee and her damages were assessed at $1,236.25 and pursuant to special interrogatories submitted by appellant the jury found that there was a delivery of the note in question by John Everts to Mima Woltzen; that the signature was in the hand of John Everts and that it was founded upon a good and valuable consideration from Mima Woltzen to John Everts. The bill of exceptions shows that appellant moved for a new trial. Appellant’s abstract says that upon page 167 of the record the bill of exceptions shows that the motion for'a new trial was overruled and appellant excepted, but in fact the bill of exceptions does not show that any action was ever taken on the motion for a new trial. The court entered a judgment for appellee against the estate as of the seventh class and this is an appeal by the executor therefrom.

Appellee introduced a number of witnesses, who testified that the signature to this note was in the genuine handwriting of the deceased, and then offered the note. The note was in the possession of appellee and therefrom a delivery was presumed, and it was expressed to be for value received, which was sufficient proof of consideration, and a prima facie case was thereby made for appellee.

Appellant produced witnesses who testified that the signature to the note was not in the handwriting of the deceased. These witnesses exceeded in number those testifying for appellee on that subject, but they were persons less intimately acquainted with the deceased and less likely to be familiar with his handwriting. Deceased was born in Aus Friesland and spoke and wrote the German language and the name “Jan” in the signature was in form like German writing, and the witnesses for appellant largely based their conclusion that the signature to the note was not genuine upon the fact that they had never seen him write his name that way and had never seen his signature in that form to any paper. Appellee’s witnesses proved that “Jan” was the German form of his name and that he frequently so wrote his signature. In this state of the proof on that subject, we cannot say that the jury should have found that this was not his genuine signature, but, on the contrary, must treat their finding on that subject as correct and that deceased did prepare and sign this note with its expression that it was for value received.

Deceased lived and died in Stephenson county. Appellee was living in South Dakota at the time of her grandfather’s death. Thereafter she and her husband wrote several letters to the executor which were introduced in evidence by appellant. From these letters it appears that appellee did not have this note in her possession, and did not know that it had been executed, till after her grandfather’s death. George Klinger lived some eleven miles distant from appellee. About a week after her grandfather’s death, appellee learned from George Klinger that he had received this note for her in an unsigned letter from an unknown person, who did not know appellee’s address, but who sent him the note to be handed to appellee and directed him to tell appellee that if any one asked her when she received it she should say “last summer.” John Everts died March 6, 1908, and appellee’s first letter to the executor was dated March 19, 1908. It appears from these letters that appellee visited her grandfather in September, 1907, and that the deceased then told appellee that he would send her $800 or $1,000 as soon as he could. Appellee in one of those letters expressed her belief that her grandfather made the note in the fall of 1907, for she said that he had promised to help them in the spring so that they could have a little of their own. Appellee wrote very franldy and fully to the executor and stated everything and sent him the note for his examination and also sent him the unsigned letter to George Klinger. He afterwards returned both the note and the unsigned letter to her. On the trial in the Circuit Court appellant’s counsel notified appellee’s counsel to produce said unsigned letter, but appellee’s counsel replied that appellee was not present and they did not have the paper. The executor out of the presence of the jury testified to the contents of this paper, but the court refused to permit this evidence on that subject to go to the jury, evidently because appellee’s counsel had not been notified to produce it in time so that they could get it from appellee from South Dakota. Appellant’s evidence to the court did not show that it contained anything more than was stated in appellee’s letters which were in evidence.

Section 52 of the Practice Act of 1907 provides that no person shall be permitted to deny on trial the execution of any instrument in writing unless such person denies the execution of such instrument by affidavit or sworn plea. This was a re-enactment of a former statute, and the “execution” therein referred to has been held to include delivery, and appellant argues that appellee was bound to prove delivery and failed to do so and therefore cannot recover. On the same day that the Practice Act of 1907 went into effect, the “Negotiable Instruments Law” also went into effect, of which section 16 of Article 1 contains the following: “Where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved.” This provision is more specific than section 52 of the Practice Act, and where two inconsistent provisions become the statute law at the same time, the specific prevails over the general. Accordingly we hold that the “execution” referred to in section 52 of the Practice Act, required to be proved by appellee because of appellant’s affidavit, is modified so that it no longer requires proof of delivery where the instrument is not in the possession of the signer. It follows that, under the proof, John Everts sighed this note and delivered it and therein expressed that it was for value received, which expression of a consideration prevails, unless overcome by other proof. It is possible that this note was still in the hands of John Everts when he died and that some one took it from his papers after his death and mailed it to George Klinger with directions to give it to appellee, but such conduct would have been wrongful, if not criminal, and it would not be presumed that such wrong was committed, in the absence of proof. The deceased did not intend that this note should be paid till two months after his death and it is just as consistent with the letters appellee wrote to appellant, which contain the only proof on the subject, that John Everts in his lifetime placed this note in the hands of some person whom he trusted, with directions to send it to appellee after his death. Such a delivery would be valid, and would vest title to the note in appellee, even if she did not know what had been done till after the maker died. Appellant insists that appellee’s letters show that the note was a gift, and contends that, as it was not paid by John Everts in his lifetime, the gift must fail. The law is as stated by appellant, but the letters do not show that the note was a gift. Appellee may have rendered services for her grandfather for which he intended this note should be compensation. It will not be presumed that it was a gift against his statement that it was for value received, merely because appellee wrote that he had promised to send her $800 or $1,000 the following spring, so that they could have a little of their own. If there are any defects in the instructions given for appellee, we think they are cured by those given at the request of appellant.

The judgment is therefore affirmed.

Affirmed.-