author: Mr. Justice Smith

text:
    Warren District Development Company, Ltd., Appellee, v. Miners & Merchants Bank, Appellant.
    Gen. No. 15,945.
    Banks and banking — when deposit cannot be recovered. Held, under the evidence that the deposit sued for in this case could not be recovered by the depositor, first, because it did not appear that the bank had received the plaintiff’s money -which in justice and fair dealing it could be compelled to return to the plaintiff; second, because the bank had not improperly disbursed the money received by it, and third, because a delay of ten months in repudiating the action of the bank in paying out the money, amounted to a ratification of what the bank had done.

      Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed with finding of facts and judgment.
    Opinion filed December 22, 1911.
    Peckham, Browh, Packard & Welsh, for appellant.
    Judah, Willard, Wole & EeichmaNH, for appellee.
   Mr. Justice Smith

delivered tlie opinion of tlie court.

This action was brought in the Circuit Court by appellee, the Warren District Development Co. Ltd., a limited partnership under the laws of Michigan, against the Miners and Merchants Bank of Bisbee, Arizona, appellant, to recover the sum of $7,500 with interest, alleged to have been deposited by the appellee with the appellant Bank, and which money, it was alleged, was paid out by the Bank contrary to instructions accompanying the deposit.

The defenses of the Bank are: first, that such departure from the instructions as were made, were authorized and directed by one Fred A. Sutter, an attorney-at-law in Bisbee, who, while nominally standing as one of the parties to the transaction, in reality acted as the agent and attorney for the party that issued the original instructions, and was also equally interested with the depositing party in the fruits of the enterprise, being a member of a partnership of four persons who conceived the scheme in which the creation of the Warren District Development Co. Ltd., was an intermediate step, for a profit-seeking plan in which the four persons in question were to reap large rewards; that Sutter had just as much right to dictate or vary instructions to the Bank as Hanchette, whose unsigned letter constituted the instructions from which Sutter authorized the deviations complained of.

Secondly, the Bank contends that the delay of ten months on the part of the plaintiff before repudiating the acts of the agent and making demand on the defendant for the return of the money, after it had been fnlly informed of the action of the Bank, during which period it sought by divers pretexts to retain the fruits of the transaction, that is, certain mining properties, constituted in law a ratification of the action of the Bank; that the principal with full knowledge of what the Bank had done sanctioned a suit brought to settle the claims of certain jumpers and did not wait for the favorable outcome of the action; that it refused an offer for the vendor of the properties to return the money, thereby prejudicing the chances of the Bank to reimburse itself; that it authorized assessment work to be performed in its behalf on the properties, expecting from the favorable development work done on adjacent properties that this particular property would greatly enhance in value; that it issued stock to Sutter pursuant to the original partnership agreement; that it invited and accepted subscriptions to stock, and manifested in other ways as plainly as it could be done an unmistakable desire to hang on to the mining claims until after ten months’ delay, waiting for better conditions and stock subscriptions in the Development Company which failed to materialize; and it seeks in this action to hold the Bank for its already ratified action in regard to the payment of the money.

The case was tried by the court without a jury, and judgment was rendered for the plaintiff in the sum of $9,297.51.

The declaration filed in the case consisted of the common counts. Later three additional counts were filed. These additional counts are framed upon the theory that because of the ■ violation of instructions by the defendant, the plaintiff was entitled to a repayment of the money with interest, and not upon the theory that the plaintiff, because of the violation of its instructions by the Bank, was entitled to damages occasioned thereby.

No proof was made of actual damages suffered by tlie plaintiff. The plaintiff rested its case on the trial entirely npon the proof of the alleged violation of instructions, without any proof that the plaintiff returned or authorized the return by the Bank of the papers and property received by it for the money of the plaintiff paid out by the defendant. No question, therefore, as to the measure of damages is presented. The sole question is as to the right of the plaintiff, upon the facts shown in evidence, to have the money deposited in appellant Bank paid over to the plaintiff and, on refusal, to have a judgment therefor.

"The action is necessarily based on the theory that the money when advanced belonged to the plaintiff, and was placed in defendant’s hands and possession by the plaintiff under specific directions as to when it was to be paid over, and that the defendant Bank, without authority, violated the instructions given it, and therefore it is legally obliged to repay the money to appel-lee.

In order to determine the main question of the right of plaintiff to recover back the money deposited by it in appellant Bank, we must first determine who advanced the $7,500 sued for to the appellant; and secondly, who did Sutter represent, and in what capacity, and what was his authority?

The evidence shows that on May 5, 1903, Fred Hed-burg was the owner of a group of twelve mining claims located in the Warren district, Cochise county, Arizona, and gave an option to purchase the same to one George C. Clark, agreeing to convey, to Clark, the mining claim described therein on the payment of the sum of $75,000, ten per cent, of which sum was to be paid on July 4, 1903, twenty per cent, on or before one year from that date, and the balance on or before two years from that date, the payments to be made at the Miners and Merchants Bank of Bisbee, Arizona, to the credit of Hedburg. On the same date, namely, May 5, 1903, George C. Clark assigned and transferred the option, in consideration of one dollar, to Fred A. Sutter.

A contract was made dated at Hancock, Michigan, June 27, 1903, between C. D. Hancbette, Louis Grab-ower, John Funkey and F. A. Sutter, wbicb recited tbe option to Clark, and tbe assignment of tbe same by Clark to Sutter, and that Sutter bad given an option to Funkey for Funkey and Hancbette, and that a new contract was made between Funkey, Grabower and Sutter by wbicb Funkey and Grabower agreed to find a purchaser for tbe group of mines, and in consideration thereof were to share all profits with Sutter on all moneys that could be obtained above tbe $75,000; and that tbe agreement was made with tbe understanding that it was done with tbe consent of C. D. Hancbette, and that if be desired to enter into tbe arrangement be would participate in tbe profits, wbicb would be equally divided among the four. Tbe agreement further recites that tbe Warren District Development Co. Ltd. was formed for the purpose of taking tbe option for tbe sum of $150,000, ten per cent., or $15,000 of wbicb was to be paid in cash and twenty per cent, in one year and tbe balance in two years from July 4, 1903. It is further recited in tbe agreement that it was proposed to sell 2,000 shares of stock of tbe Warren District Development Co. Ltd. for $10 per share, making $20,-000, $15,000 of wbicb was to make tbe first payment on tbe property in question and a bond was to be issued to tbe company. Tbe agreement further states that tbe development company was to turn in to Grabower $6,000 and be was to forward tbe same with $1,500 more to the bank of Bisbee, wbicb amount would be tbe first payment from Sutter to Hedburg, and tbe Development Company would issue $9,000 of tbe stock to Grabower, wbicb should be in full for the first payment of $15,000 on tbe bond; that tbe $9,000 in stock should be sold and out of tbe proceeds of tbe sale one J. A. Fuller should receive $500, Grabower $500, and then the next money received was to be divided equally among Funkey, Hanchette and Grabower until they should each have received $1,000; and the balance of the stock that was sold and cash turned over should be divided among Grabower, Funkey, Sutter and Hanchette.

On June 26, 1903, Hanchette prepared and sent a letter unsigned to the Bank of Bisbee, Arizona, as follows :

‘ ‘ Gentlemen:
Enclosed herewith we hand you a draft for $7,500, a part of the first payment to be made upon the Hed-burg group of claims described as follows: (giving a description of the claims.) Mr. Sutter will have executed in favor of the Warren District Development Co. Ltd., a bond direct to the company from himself for the sum of $150,000.00, of which 10 per cent, is to be paid in cash on July 3, 1903, 20 per cent, or $30,000, July 3, 1904, and the balance July 3, 1905; a deed of said claims from Fred Hedburg to Fred A. Sutter, and from Sutter to the Warren District Development Company, Ltd., which deed shall be left in escrow in your hands in accordance with escrow instructions to turn the same over to the-Warren District Development Co. Ltd., when the full amount of the purchase price is paid, as per the bond.
We shall want Mr. Sutter’s written certificate accompanying the abstract of title that the title is perfect and we shall want also a certificate from the surveyor who has examined the ground that there are no adverse claims located thereon. When you have received the above mentioned documents, you will please pay the enclosed $7,500 to Messrs. Fred Sutter, Fred Hedburg and F. A. Clark and take a receipt from Hed-burg and Clark for $7,500 and from Mr. Sutter for $15,000. We do not wish to pay this money over unless the deeds are deposited and contract is signed and certificates of Sutter and tlie surveyor are filed with yon. ”

Three days after the dispatch of the above letter to the Bank at Bisbee, articles of association of the Warren District Development Co., Ltd., were prepared and signed by Lonis Grabower, John Funkey, Charles D. Hanchette, Joseph Croze, William Condon, J. A. Fuller and N. A. Metz, in which they agreed to associate themselves together in a limited partnership, each of the persons subscribing one thousand dollars to the total amount of the capital stock, and specifying the managers for the first year. These Articles were received and filed by the registrar on June 29, 1903.

As affording light upon the plans and purposes of Hanchette, Grabower, Funkey and Sutter, the letter of June 8, 1903, from Hanchette to Sutter should be referred to. In the letter Hanchette states in substance that Grabower has showed him a contract by which “three of you” were to divide the profits over and above the option price. He said, however, that he, Hanchette, was included in the deal, and that it was understood that each one of the four would have a quarter-interest. Grabower mentioned one or two parties that he had opened negotiations with but it seemed almost impossible just at the present time to do anything with any Bisbee properties or any other properties because of the very bad condition of the money market. However, Grabower thought best for “us” to make the first payment and hold it for a year and then in case the Higgins people got ore within that time it would have some value. So that “we” would practically have a sure thing.

Hanchette again writes Sutter as appears from the record, under date of June 19, 1903, to the effect that Grabower, Funkey and himself, had made the following arrangements with reference to the Hedburg group of claims upon which Clark had an option for sale, and speaks of Sutter having received an option from Clark which requires the payment of $75,000 before July 4, 1903, 20 per cent, on July 4,1904, and the balance July 4,1905, and that it had been agreed between Grabower and Funkey that if they conld find a purchaser the profits were to be divided among the three equally, but that if he, Hanchette, would consent to the agreement, he would be entitled to a quarter-interest with each of the others in the enterprise, and that acting upon that arrangement they had started to get together twenty persons to put in $1,000 each and to organize a limited partnership association under the name of the Warren District Development Co. The letter states that they haven’t all the twenty interests taken as yet, and speaks of an understanding that each one of the four should take a twentieth interest, and that if all of the twenty interests are subscribed for, they would have $20,000, $15,000 with which to make the first payment upon the bond and $5,000 for working capital, and that out of the $15,000 the four would pay the $7,500 to Hedburg and that the other .$7,500 would be profit to the four and out of the $7,500 profit they would pay for their twentieth interests and the balance in cash was to be divided between them. In the letter he di.rects Sutter to get all the papers drafted and signed necessary to make the transaction complete, and suggests that they would have to have abstracts of title of all the claims certified to by the Registrar at Tombstone, which would include copies of papers filed, a certificate from the surveyor that he has made an examination of all the ground covered by the claims, and that there were no adverse claims, and that a bond should be made direct to the Warren District Development Company, Ltd., by Sutter just the same as the one that he received from Hedburg, with the difference of the amounts of the payments; then a deed accompanying these claims should be made by Hedburg to Sutter, and a similar deed by Sutter to the Warren District Development Co., Ltd.; and that the deeds were to be placed in escrow in the Bant at Bisbee, witb the escrow papers signed by Hedbnrg for his deed, and a similar paper signed by Sntter for his deed.

On June 26, 1903, Iianchette again writes to Sntter stating that it will not be necessary for him to go to Arizona to fix np the details of the deal, because Snt-ter could arrange it in good shape; and stating that while the money for the subscription of the company has not come in, when sufficient money does come to make the payment he would forward it to Sntter, so that he could take up the option. The letter makes some further suggestions as to looking up tbe titles in respect to relocation of claims.

On the same day Hanchette again writes to Sutter in regard to sending the $7,500 to the Bank of Bisbee, accompanied by a letter, a copy of which he encloses to Sutter. He states in the letter that they have not yet collected the money, $7,500, to send him, but expect to do so in the course of the day, and in the course of a few days the money is to be paid and the option be actually secured; and expressed the belief that they would be able to sell the rest of the 20,000 shares of stock at $10 per share so that they will have some profits to divide among Funkey, Grabower, Sutter and himself.

Then he says: “To keep the matter straight there being only $6,500 actually subscribed thus far, we have to put up the $1,000 ourselves until we can sell enough of the stock to pay the balance. Ton will issue a receipt for the $15,000 and take a receipt from Clark and Pledburg for $7,500. The stock paid for by this $15,000 will be carried by ourselves temporarily as profits until it can be disposed of. When it is disposed of, it will be divided. ’ ’

On June 29, Grabrower writes to Sutter with reference to the deal as follows:

“I think the four of us will clean up a nice sum when we re-sell the property or else float it ourselves. I expect we will put this property into a company for no less than $300,000. This will give the Warren Development Company $150,000 of which we share profits aside of ns fonr turning this over for $150,000 to Warren Development Company. This is entirely between us fonr, and outsiders must not know what the original cost is. Perhaps you can sell some shares at Bisbee in the Warren District Development Company. * * * I think we better lay quiet for about three months and let Higgins develop for us, and should they find any ore, we can get double for the property. So kindly watch everything and report and also let me know where the assessment work will have to be done.”

On the same day ITanchette writes to Sutter,

“I hope there will be no difficulty, and that you will arrange everything satisfactorily, and send copies of all the papers that are left in escrow to us together with a copy of the bond from Hedburg to Clark and you and the bond from you to the Warren District Development Company, Ltd.”

Mr. C. A. Bennett, teller of appellant, testified that Sutter informed him at the time of the transaction that he was the attorney for and partner of C. D. Han-chette and Louis G-rabower, and as such attorney and partner Sutter instructed him to pay the money over to Hedburg and Sutter on the contracts and deeds deposited and the abstract from the County Recorder and the certificate from Mr. Clark, which were all forwarded to Iianchette; and that there was no demand upon appellant for the money prior to May 14, 1904.

We think that we have quoted from the correspondence of the four people immediately interested in securing the contract for the conveyance of the moneys in question, and referred to the evidence sufficiently to show that the whole matter of preparing the papers and securing a good title, and the evidence of such title to the mining claims in question, as well as the expenses connected therewith, and the making of the first or cash payment on tfie property, was a matter for tlie four persons, namely, Iiancliette, Grabower, Sutter and Funkey, wbo were to turn over tbe contract of purchase with proper deeds of conveyances to tbe plaintiff, at a profit of $75,000; in other words, they were to get the property at $75,000 and turn it over to the plaintiff at $150,000. Until this was done and everything necessary to effect it, the plaintiff did not advance or deposit any money or become interested in the deal. It is true that in order' to raise the $7,500 Hanehette and Gra-bower used a portion of the money which was paid in for capital stock of the plaintiff, yet, when the money was so used the plaintiff had not been organized and was not in legal existence; and that Hanehette and others simply assumed the responsibility of using the money without plaintiff’s authority, for their own purposes, using with it some of their own money, in order to raise the $7,500 necessary for them to make the deposit in appellant Bank to secure the option contract from Iiedburg.

The next question is, who did Sutter represent, and in what capacity, and what was his authority?

The inference from the evidence on this question already adverted to seems irresistible. Specifically the written agreement of June 27, 1903, may be again adverted to, not only for the purpose of showing a partnership agreement whereby Hanehette, Grabower, Funkey and Sutter in the matter of securing the option contract for the purchase of the mining claims for $75,000 and reselling the claims to appellee at $150,000 and the division of the profits equally among them, but also for the purpose of showing Sutter’s autímrity as a trusted member of the firm, residing at the place where the business was to be transacted. He was a lawyer well versed in the law of titles to mines in Arizona as appears from his correspondence in the record. He took and held an assignment of the option contract given by Hedburg in his own name for the benefit of himself and his then associates or partners. He was designated by Hanchette and Grabrower for obvious reasons to attend to the preparation of the necessary papers for transferring the title of the mines to appellee, and the deposit of the papers in escrow with the appellant Bank. All the evidence relating to his authority considered in connection with his established relation as partner in the enterprise justifies the inference that he had as much authority to give directions to appellant Bank as Hanchette or any other member of the co-partnership. We find in the record no specific authority given to Hanchette by the partners or either of them to prescribe the exact conditions of the payment of the money in appellant’s hands. Mr. Sutter was on the ground. In addition to his relation to the business as a partner, he was the legal adviser who was to pass upon the title to the mines and give a certificate or opinion as to the title. Hanchette writes under date of August 31, 1903, “Mr. Funkey said that you agreed to take care of the work there and we were expected to do the work here.” The evidence shows that Sutter carefully protected the interests of his associates and his own interests as well, for they were identical. In view of unforeseen exigencies which arose, he gave directions to the bank which were dictated by reason and good sense. His letter to Han-chette of July 7, 1903, explains fully the whole transaction and gives Ids reasons for what he did. Han-chette’s reply to this letter, dated July 13, 1903, after he had been fully informed as to what had been done by Sutter and appellant, not only by Sutter’s letter, but by the Bank’s letter of July 3, 1903, does not hint at a repudiation of what had been done. He does not even find fault with what Sutter or the Bank had done. He notices that there are no affidavits as to location or assessment work, or a mention of what claims are in dispute, and speaks of the omission of the “Kite” claim from the option to the Development Company, and asks Mm to “correct tMs on the bond from yon to the company which is in the hands of the Bank.” He says, “I hope that these conflicts will not amount to anything, and I am sorry that yon did not have yonr certificate as to the title. ’ ’ He then states what in his opinion they should have “in order to be perfectly sure in all these matters.” Hanchette then mentions the advances which iFunkey, G-rabower and himself had been obliged to make in order to provide for the first payment, and how with Mark’s check they had been able to pay themselves back all. but $333 apiece. He urges Sutter to sell some stock in the company in Bisbee, and if Sutter could sell three or four hundred shares “we would have a profit to divide up.” The whole trend of the letter is in the direction of carrying out and closing up what had been done, and in confirmation thereof.

Grabower, another active member of the firm of four, writes from Detroit, Michigan, under date of July 15, 1903, in reply to a letter from Sutter of July 8th, being evidently in possession of the facts as to what had been done, as follows: “Hanchette and myself are of the opinion that we better lay.quiet until about September 1st, and then the Warren Development'Co. can turn over the property to some company which we ourselves can start at whatever price we think best.” After cautioning Sutter that he must say, “the land cost us as sold to the Warren Development Company,” he closes by saying, “As soon as I get home, will dispose of a few shares so that we can get enough to divide the $7,500 among us four.” There is no word of repudiation of what Sutter had done, or even of criticism in the letter of Grabower.

Without quoting further from the correspondence, the idea and purpose manifested in it is to straighten out the matters connected with the title of the mining claims while they were endeavoring to sell the stock in the plaintiff association which they were organizing, and waiting for the results of the development of the Higgins gronp of claims which adjoined the Hedbnrg claims. Hanchette becomes impatient in some of his letters because Sutter did not progress as rapidly with the matters he had in hand as Hanchette thought he might, and because he did not make a trip to Tombstone to secure certain papers and records. In this connection Hanchette occasionally suggests in his letters to Sutter that unless the title matters were straightened out satisfactorily they would have to hold the Bank and Hedbnrg liable. Sutter in reply to a letter from Hanchette dated August 31, 1903, writes that the abstract of title which he had sent to Han-ellette contained everything on record, and explains why he could not certify to the title as perfect, and further that surveyor Clark’s certificate “did-not mention certain conflicts, because they had not at that time been surveyed. ’ ’ He states that he has filed suit against the jumpers and that the $1,875 reserved will be more than sufficient to bring about a settlement, and adds: “When the matter is cleared up, you will, I am sure, think I have acted wisely by doing as I have.. ’ ’

Hanchette in his reply to the above letter under date of September 16, is apparently satisfied with Sutter’s explanation, and encloses a form of certificate such as he desires. He indicates the impossibility of selling any stock, and that they have not sold enough even to pay back the advances of himself, G-rabower and Fun-key.

We cannot take the time to state further the substance of what appears in the correspondence bearing upon the question now under consideration, for it would extend this opinion beyond reasonable limits. We cannot doubt, upon a full consideration of all the evidence, that Sutter had ample authority to give the Bank the directions under which it paid the money sued for in this case.

Either of the conclusions of fact above stated makes it legally impossible for appellee to recover the money sued for in this case. To allow a recovery would he inequitable and unjust. The special counts of the declaration aver certain facts which it would he necessary to prove in order to sustain an action for money had and received.

“To sustain the count for money received hy the defendant for the use of the plaintiff, it is only necessary to show that the defendant has obtained possession of money or something’ as money which ex aequo et bono, he ought to refund.” (Ency. of P. & P. Yol. 2, 1016.)

If appellant Bank did not receive appellee’s money in justice and fair dealing it ought not to be compelled to pay the money to appellee. If appellant paid out the money under the direction of appellee or its authorized agent, it is not liable to appellee for the money.

The delay of ten months during which appellee, on the assumption that the money belonged to it, retained the rights secured by the payment of the money by appellant, and the benefits of the transaction before the payment was repudiated and demand made on appellant for a return of the money, constituted in our opinion a ratification of the action of appellant Bank. Indianapolis R. M. Co. v. St. L. R. R. Co., 120 U. S. 256; Law v. Cross, 66 U. S. 533; McGeoch v. Hooker, 11 Ill. App. 655; Searring v. Butler, 69 Ill. 575; Ernst v. McChesney 186 Ill. 617; Williams v. Merritt, 23 Ill. 573; Harrod v. McDaniels, 126 Mass. 415.

Aside from the delay there is much evidence in the record, some of which has been referred to, showing that the act of the Bank in paying out the money under the directions of Sutter was ratified and confirmed by Hanchette and his associates. Our conclusion from the evidence is that the payment of the money by the Bank was ratified and approved by Hanchette and his associates in their efforts to carry out and complete the transaction at the Bank and in the retention by them of the fruits and benefits of the payment of the money. In line with this attitude and conduct was the refusal to accept a return of the money paid by the Bank from Hedburg in January, 1904. A further act of ratification was the authorization of Hedburg in November, 1903, by Hanchette and others to do the necessary assessment work which was to be paid for by the Han-chette people when a settlement was made with the jumper claimants. Hatch v. Taylor, 10 N. H. 538; Valley Bank v. Brown, 9 Arizona, 311.

The judgment of the Circuit Court is erroneous and is reversed with a finding of fact, and judgment is entered in this court on the finding in favor of appellant, Miners & Merchants Bank, and against appellee, Warren District Development Company, Ltd.

Reversed with finding of facts and judgment.


source: Caselaw Access Project

license: Public Domain

text:
    The Supreme Council of the Royal Arcanum, Appellee, v. William A. Huckins et al., Appellants.
    Gen. No. 15,993.
    1. Fraternal benefit societies — what does not destroy rights of beneficiary. An incorrect description will not defeat a recovery upon the part of an eligible person properly named as beneficiary.
    2. Fraternal benefit societies — 6enefieiary may be changed. Strict compliance with the regulations prescribed by the by-laws and officers of a society is not essential to a valid change of beneficiaries; if the transaction amount to a designation of a particular eligible person as beneficiary, it is sufficient.
    Bill of interpleader. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed December 22, 1911.

      Certiorari denied by Supreme Court (making opinion final).

      AbNott Stubblefield, for appellants.
    Stewart E. BrowN, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The Supreme Council of the Eoyal Arcanum filed in the Superior Court a bill of interpleader against the heirs of Clarence L. ITnckins, deceased, and Eose M. Yagar, alleging that Clarence L. Huckins was a member of the Eoyal Arcanum, and holder of a benefit certificate therein for $3,000 which, in the event of his death while in good standing, was payable to his wife. Clarence L. Huckins died May 14, 1907, while in good standing, and his wife having previously died, a controversy had arisen between the heirs of the said Clarence L. Huckins and Eose M. Yagar, as to whether the benefit fund of $3,000 payable upon the certificate by the complainant, should be paid to the heirs or to Eose M. Yagar. The complainant offered to pay the money into court and prayed that the defendants interplead.

A supplemental bill was filed setting out that since the filing of the original bill the complainant had paid to Loella E. Huckins $1,500, one half of the benefit, and alleging that the other half was claimed by Eose M. Yagar as affianced wife of Clarence L. Huckins,' deceased, and also by the heirs-at-law of the deceased. The bill prayed that defendants answer and interplead and adjust their demands.

The Huckins heirs answered claiming the $1,500 and Eose M. Yagar answered claiming the same.

A decree was entered that defendant pay into court the sum of $1,495 and upon so doing be dismissed out of the case, and that the defendants interplead.

Upon the hearing the court entered a decree-that Eose M. Yagar was entitle to the $1,495 and directed the clerk of the court to pay the same to her. The other defendants prayed an appeal from the decree, and assigned as errors that tlie decree is contrary to law and equity and that the court erred in finding and decreeing that appellee, Bose M. Yagar, was entitled to the fund in controversy.

The record shows that on March 23, 1888, Clarence L. ITuckins became a member of Logan Council No. 1019, located at Chicago, Illinois, which was a subordinate body of the Supreme Council of the Boyal Ar-canum. A benefit certificate No. 93,088 for $3,000 was ■issued to him, which sum in the event of his death in good standing, in accordance with the rules and regulations of the Boyal Arcanum, was payable to his wife, Flora E. Huckins.

On September 7, 1906, Clarence L. Huckins executed a surrender certificate and request for change of beneficiary as follows:

“Logan Council No. 1019 B. A.
September 7, 1906.
To W. O. Bobson, Sup. Sec. S. C. B. A.
I herewith surrender and return to the Supreme Council of the Boyal Arcanum the within benefit certificate No. 93088 and direct that a new one be issued to me payable to
Lolla Bay Huckins
Bose M. Yagar
residing at 993 Congress Street and 2140 Washington Blvd., Chicago, related to me as daughter and adopted daughter.
Clarence L. Huckins.
(Seal of sub-council)
Attest: M. C. VanVleck,
Secretary. ’ ’

At the same time Huckins paid to the secretary of Logan Council fifty cents, and thereupon the secretary forwarded the surrender of certificate and request for change of beneficiary to the secretary of the Supreme Council at Boston with the fee of fifty cents.

The Supreme Secretary on September 21, 1906, wrote to the secretary of Logal Council acknowledging the receipt of the request of Huckins for change ■of beneficiary, and pointed out that one of the beneficiaries named is an adopted daughter, and that it was not stated which one is the adopted daughter, and that the places of residences are not stated so that it is impossible to say which is the residence of each, and enclosed a form for a new application.

On the same day the Supreme Secretary wrote to Huckins pointing out that in his request for a change of beneficiary he names two, Lolla Bay Huckins and Bose M. Yagar, who are said to he daughter and ;adopted daughter, hut which'is the daughter, and which ■the adopted daughter, was not specifically stated; and that in order to avoid any chance for a misunderstand- ■ ing asked Huckins to insert a date and sign with his full name a form of certificate which was enclosed, and send it to the secretary of Logan Council, and further saying that if the adopted daughter referred to had been legally adopted it would he necessary to procure and send proof of such adoption in the form of a certified copy of the record of adoption from the proper court, and if not legally adopted proof of the dependency should he made in accordance with a form enclosed.

Subsequently, on October 23, 1906, December 15, 1906, and March 7, 1907, the Supreme Secretary wrote letters to the Secretary of Logan Council and to Huck-ins in regard to the matter of the change of beneficiaries, and urging that the proofs be forwarded as suggested. To these communications Huckins made no response, and the matter was left in the same condition until the time of his death.

Flora E. Huckins, wife of Clarence L. Huckins, died before the decease of Clarence L. Huckins. Clarence L. Huckins left him surviving as his only heirs-at-law and next of kin his sons "William A. Huckins, Albert C. Hnckins, Webster L. Hnckins and L. Yan E. Hnck-ins, and Ms danghter, Loella Eay Hnckins, all of lawful age, and Loella Eay Huekins is the same person named in the request for change of beneficiary as Lolla Hnckins.

Proofs of the death of Clarence L. Hnckins were made in due form, and submitted to and received by the Supreme Council. For the purpose of this appeal and for no other purpose, it is admitted by appellants that- from a time prior to September 7, 1906, the date of the surrender and return to the Supreme Council of the benefit certificate with the request to make out a new one payable to the new beneficiaries, and continuing until and at the time of the death of Clarence L. Huekins, the appellee, Eose M. Yagar, was the affianced wife of Clarence L. Huekins.

It is contended on behalf of the appellants, that the adoption of a particular method of changing the beneficiary by a benevolent society is exclusive of all other methods, and must be complied with unless such compliance is waived by the society, or it be beyond the power of the insured to comply literally with the regulations, or unless the assured has pursued the course pointed out by the laws of the association and has done all in his power to change the beneficiary; and many authorities are cited in support of these contentions.

Beyond question the charter and by-laws govern the rights of the parties. Section 324 of the by-laws of the Supreme Council of the Eoyal Arcanum designates who may be beneficiaries of the second class. The persons designated under that section may be, first, the affianced wife, or any person who is dependent upon the member for maintenance. In either of which cases written evidence of the affianced relation or dependency within the requirements of the laws of the order must be furnished to the satisfaction of the Supreme Secretary before the benefit certificate can be issued. Second, neither the decision of the Supreme Secretary, nor the issuance of the benefit certificate shall be conclusive as to the fact of the affianced relation or dependency; and third, if such satisfactory evidence either of the affianced relation, dependency, or of legal adoption is not furnished as provided in the by-laws prior to the decease of the member, no benefit shall be paid unless such evidence is furnished to the satisfaction of the Supreme Secretary and examiner of claims.

Section 333 of the by-laws provides that a member may at any time when in good standing pay a fee of fifty cents, make a written surrender of his benefit certificate and direct that a new certificate be issued to him payable to such beneficiary or beneficiaries as such member may designate in accordance with the laws of the order; and section 334 of the by-laws pro vides that a written surrender and direction for a change of beneficiary must be forwarded under seal of the council, with the benefit certificate and fee of fifty cents, to the Supreme Secretary, who shall issue a new certificate in accordance with the direction of the member, if the direction is in accordance with the laws of the order, and if all other conditions have been complied with. And section 337 provides when the change of beneficiary shall take effect.

The principles governing benefit insurance contracts are of a manifold nature and analogous to the general rules of construction governing statutes, contracts and wills. In Duvall v. Goodson, 79 Ky. 224, 228, the court ,said:

“A life insurance policy for the benefit of the family of the person procuring it, though not a testament, is in the nature of a testament, and in construing it, the court should treat it as far as possible as a will, as in so doing they will more nearly approximate the intention of the person the designation of whose bounty is involved in such case.”

The controversy presented on this appeal is between the heirs of Clarence L. Hnckins on the one hand, and Eose M. Yagar, appellee, on the other. The Supreme Council of the Eoyal Acanum, the complainant in the bill, has been eliminated from the controversy.

At the farthest, the designation of Rose M. Yagar, appellee, as a beneficiary in the surrender of the certificate and designation' of new beneficiaries, was an incorrect description of an eligible person, and such an incorrect description will not defeat a recovery on the part of the eligible person so incorrectly described. Farrenkoph v. Holm, 237 Ill. 94; Royal Arcanum v. McKnight, 238 Ill. 349, 358.

In Kinney v. Dodd and Switchmen’s Mutual Aid Association, 41 Ill. App. 49, Margaret Kinney, the mother of the assured, claimed as heir-at-law and disputed an alleged claim of Hattie Dodd, affianced wife. Hattie Dodd was designated: “Devisee, Hattie Dodd, related-” The court held that:

“It clearly appears that the assured intended to make, and believed he had made his policy payable to Flattie Dodd. The Association so understood and agreed to make payment. This being the case, even if there had been a want of a technical compliance with everything requisite to constitute her the beneficiary, a court of equity, which looks to substance rather than form, would carry out the plain and manifest intention of the parties. But so far as appears, the policy was entirely in accordance with the rules and regulations of the Association made payable to Hattie Dodd, she was the beneficiary named at the time the policy was issued, and her name was inserted in the only way and place provided for designating beneficiaries, * # * There is an undoubted right to make the certificate payable to Hattie Dodd. The parties did what they thought secured this; there is no rule of public policy which forbids the carrying out of. such intention. The decree of the* court below awarding the money paid in on this certificate to her is therefore affirmed.”

At the time that Huckins surrendered his benefit certificate, and designated Loella Eay Huckins and Eose M. Yagar as his new beneficiaries, as the secretary of the local lodge testified, “I told him if he left it to an adopted daughter he would have to furnish necessary proof of adoption or our new Supreme Secretary would not accept it. He told me to try it anyway; I said, ‘All right, I will send them down, but I know the papers will come back.’ ”

Appellants contend .that inasmuch as the assured did not furnish the information required by the secretary of the supreme council in his lifetime, as requested, a reasonable presumption exists that he changed his mind to leave the matter as it was. We think, however, that the facts shown by the record furnish no basis for such a presumption, and that the evidence in the record indicates very clearly the intention of Clarence L. Huckins with reference to making Eose M. Yagar one of his new beneficiaries.-

In our opinion the decree awarding the money to appellee expresses and carries out the intention of Clarence L. Huckins, and although the formalities required by the by-laws and by officers of the Supreme .Council were not strictly observed, the substance of the provisions of the by-laws was observed and that the transaction amounted to a designation of appellee as beneficiary. She was eligible under the statute and under the by-laws as an affianced wife.

The Supreme Council, the complainant, recognized the designation of a new beneficiary so far as Loella E. Huckins was concerned, and paid the money to her ; and in our opinion it acted correctly in so doing. The designation of Eose M. Yagar, appellee, as beneficiary, was by the same paper and under the same state of facts, and it therefore became an effective designation, keeping in view the substance of the transaction rather than the form.

The decree of the Superior Court is correct and is affirmed.

Affirmed.


text:
    John D. Casey, Administrator, Appellee, v. Brinks’ Chicago City Express Company, Appellant.
    Gen. No. 15,998.

      Verdicts — when not disturbed as against the evidence. A verdict will not he set aside on review as against the evidence where it is not clearly and manifestly against its weight.
    Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed December 22, 1911.
    Rehearing denied January 9, 1912.
    William English, for appellant.
    James Maher and Johk T. Murray, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

On October 18, 1905, about 5:30 p. m., William H. Delaney, appellee’s intestate, a man thirty-eight years old, was walking across from the west side to the east side of Canal street at or just north of Adams street, in the city of Chicago. When he was somewhat more than half way across Canal street he came in collision with the shoulder or forward portion of the west horse of a team drawing a wagon belonging to appellant, which was being driven north in Canal street on the easterly side of the street. When the collision between Delaney and the horse occurred, Delaney fell to the ground. The wagon was stopped before the front wheels had touched him, and he was picked up from under the west horse. He was removed to the Cook County Hospital and remained there until October 27, 1909, when he died.

. Appellee, as administrator of the estate of Delaney, brought an action in the Circuit Court of Cook County for the benefit of the next of kin of Delaney, and recovered a judgment for $2,500 and costs against appellant, Brinks’ Chicago City Express Company, for the wrongful act causing the death of Delaney.

The declaration consists of two counts. The first count alleges general negligence, and the second alleges negligence consisting in driving the horses at an undue, excessive and improper rate of speed, and without giving any warning of the approach of the horses and wagon.

The contentions of appellant are, (1) that the evidence did not establish negligence on the part of appellant; (2) that the evidence did not establish due care on the part of appellee’s intestate; and (3) that the evidence did not establish that the intestate died as a result of any injury received by him.

Hpon a careful review of the evidence in the case, we find that there is a controversy as to whether the deceased was walking directly across Canal street on the north crossing of Adams and Canal streets, or whether he walked a little toward the northeast and slightly north of the crossing. The evidence as to whether the deceased was exercising due care for his own safety while he was walking in the street, and whether or not he was under the influence of liquor at the time of the accident, presents considerable controversy. There is also some controversy as to whether the team and horses were moving rapidly or slowly at the time of the accident. The driver of the team, Brock, testified that his team was ‘‘nicely started on a trot,” that the wagon did not go over six or seven feet after the collar of the horse strnclc the man; that he saw the man crossing the street and shouted to him before he was struck, and that he hacked the team after Delaney fell to the ground, so as to he sure that the wagon had not touched him.

Upon a careful consideration of the evidence, we do not find that the verdict and judgment of the court is manifestly and clearly against the weight of the evidence upon the questions as to whether the defendant, appellant, was guilty of the negligence averred in the declaration, or whether the deceased, before and at the time of the accident, was in the exercise of due and proper care for his own safety. The latter question is particularly close, upon the evidence. We are of the opinion that although the deceased was in a weak and unhealthy physical condition at the time of the accident, the concussion and injury then received hy him was the proximate and immediate cause of his death.

■ We are unable to find any clear ground for disagreeing with the verdict of the jury upon either of the above questions. The evidence Joes not compel us to a conclusion different from that of the jury. We cannot say even that if we were sitting as jurors in the case we would find a different verdict, or come to a different conclusion from that expressed in the verdict and the special findings as submitted to the jury. No material errors in the rulings of the court are shown by the record, and the judgment must, therefore, be affirmed.

Affirmed.

Me. PbesidiNg Justice BaldwiN took no part in the decision of the case.


text:
    Patrick Cox, Appellant, v. Illinois Tunnel Company, Appellee.
    Gen. No. 16,008.
    Master and servant — when doctrine of assumed risle bars recovery. If the servant knows cog wheels are not guarded and goes to work and continues at his work for the period of three weeks with full knowledge of such facts, there is such an assumption of risk as will bar a recovery for a resulting injury.
    Action in case for personal injuries. Appeal from the Superior Court of Gook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed December 22, 1911.
    E. J. Dabragh, G-. W. SpuNNEr and H. N. Bell, for appellant.
    J. A. BloomiNgstoN, for appellee.
   Mr. Justice Smith

delivered tlie opinion of tlie court.

An action on tlie case was brought by Patrick Cos, an employe of tlie Illinois Tunnel Company, ag’ainst the company, appellee, for negligence in failing to provide a safe place in which to work.

The plaintiff at the time of his injury was attending pumps in the subway of the defendant, the Illinois Tunnel Company, used for the purpose of removing from the tunnel the seep water accumulating therein. This tunnel is a bore about 50 feet under the streets of Chicago 7 feet high and 10 feet wide. The pumps are located in alcoves in the side of the tunnel about the same size and shape as the tunnel, extending back at right angles with the tunnel about 12 feet.

Connected with the pump was a pair of cog-wh'éels about 2 1-2 feet from the floor. One of these cogwheels was large and the other was small. The large one was turned by the smaller one. They turned together and meshed toward each other when in motion. They were located on the side of the pump where the plaintiff had to pass in going to and from the bleeder in the rear of the pump. Between the pump and the cog-wheels on the one side and the side of the pump room on the other there was a passage about 2 1-2 feet wide which, at the elevation of a man’s head, was narrowed by the oval shape of the ceiling, so as to cause a man in passing along to incline his head toward the pump. The plaintiffs duties at each pump were the same, consisting of the performance of the same acts each time in the same way and manner, and at the time of the injury those acts were being, done in the same manner as directed by the defendant’s representative, three weeks prior to the injury, when the plaintiff began his duties in the tunnel. Plaintiff’s duties consisted in entering the pump room at the front, starting the pump, which was run by electricity, passing by the cog-wheels to the rear of the machine, regulating the bleeder, passing out by the cog-wheels to the door of the pump-room and thence along the tunnel about a block to the sump-hole where the water collected. "When the water was removed, plaintiff went back to the pump room and stopped the pump. At the time the plaintiff was shown how to perform these duties, no danger was pointed out to him, nor any warning or icaution given him. The tunnel was dark, except at the pump room, where at the entrance was a light which at the time and place of the injury was dim. There was not sufficient room in the tunnel to pass a moving car. When a car was encountered it had to be flagged down and climbed over or around. In passing from the pump room to the sump-hole along the tunnel moving cars had to be constantly expected and looked out for.

The plaintiff attended seven pumps, made two rounds to all of them each shift, covering about four miles each round, except the pump at which he was injured, to which he made three rounds. When he had been engaged at this work about three weeks, he was injured at the Randolph river drift pump by having his arm caught in and crushed almost to the elbow between the cog-wheels. At the time of his injury the plaintiff had started the pump, passed to the rear thereof, manipulated the bleeder and was passing out between the machinery and the side of the room to listen for a passing motor preparatory to going to the sump-hole a block away, when he stepped on something round on the floor of the pump room, which together with the fact of being on a strain in bending his head from the oval ceiling toward the machinery, caused him to lose his balance and fall against the cog-wheels, which caught his hand, pulled his arm in to the elbow thus causing the injury.

The declaration contains four counts, each of which alleges the injury to have been caused by the negligence of the defendant in failing to provide a safe place for the plaintiff to work. The first count avers negligence in maintaining a wet, slippery and dirty floor in the pump room where the plaintiff had to work. Thé negligence averred in the second count is that the machinery was situated so as to cause the cog-wheels to revolve in from the side where the plaintiff had to pass instead of the reverse. The negligence averred in the third count is that the place was dangerous, because of a failure to protect or cover the cog-wheels. That averred in the fourth is a failure to cover or guard the cog-wheels, and it pleads an ordinance of the city of Chicago requiring such machinery to be guarded.

The plaintiff testified in his own behalf and was the only witness at the trial. It appears from the plaintiff’s evidence that he was familiar with the place of Ms injury and the location and management of the cog-wheels, which were entirely unprotected. He says that at the Randolph river drift pnmp there would he boards on the floor at times when the other pump men would put hoards there to walk on so their feet would he dry. At the big sump-hole the water would rise and come out. He did not pay much attention to its condition at the time of the injury, and' could not say whether there were boards or there was water on the floor at that time. He testifies, “There was some loose water out by the sump-hole, so I had to be careful for fear I would slip.” He says that he did not notice any water in the passageway .and does not think there was any there. He does not remember what condition the floor of the pump room was in at the time of the injury. He says sometimes it was wet, but he does not think it was wet at that time.

The plaintiff testified that he stepped upon something round, he did not know whether it was a stone, because he did not look to see; and when asked if it might have been the pipe that was in the passageway he could not say. He only guessed that it was a stone, because it felt round.

The evidence is substantially to the effect that the plaintiff knew all about the place, and if it was a stone that he stepped upon, he knew about the stone. He was in charge of the room and of the pump, and there is no evidence to the effect that the defendant knew or should have known anything about it if it was a stone. There is no evidence that any one outside of the plaintiff went into this room other than the man who took the other shift. If there were stones on the floor, and the plaintiff says there were some before the accident, he knew of them and assumed the risk of stepping upon them and falling by reason of their presence. He was familiar with the machinery, knew how it operated, and appreciated the danger, according to his evidence, of being caught within the cogs of the wheels. He knew that if he got his hands or body in them he would be seriously injured.

The question presented by the case, as made by the evidence of the plaintiff, is whether or not the plaintiff assumed the .risk of his employment. The plaintiff knew that the cog-wheels were not guarded and went to work and continued at his work for three weeks with full and complete knowledge of this fact. This constitutes in law an assumption of the risk so far as the failure to comply with the city ordinance is concerned. Browne v. Siegel-Cooper & Co., 191 Ill. 226.

The above case is one often cited, and the facts and the holding of the court are well known to the profession and need not be stated here. In our opinion, it covers the case at bar completely, and controls it upon the general question of the assumption of risk, and upon the question of the assumption of risk where an ordinance is being violated by an employer.

The court below at the close of the plaintiff’s evidence instructed the jury to find the defendant not' guilty and a verdict was rendered in accordance with the instruction, and judgment was entered thereon.

The judgment of the Superior Court is affirmed.

Affirmed.

Mb. PkesidiNg Justice Baldwin took no part in the decision of this case.


author: MR. JUSTICE SMITH

text:
    Charles Koehler, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 16,049.
    1. IusTauorjoNa-test of propriety of giving peremptory instruction for defendant in personal injury case. The determining test upon this question is whether or not the evidence with all reasonable inferences to be drawn from it, fairly tended to prove plaintiff's case and was sufficient to warrant a verdict in his favor.
    2. Cou'rainuroay NEaLrauNoE-v,lien question of law. Where the undisputed evidence shows that the plaintiff is guilty of coutributory negligence the question becomes one of law and it is the duty of the trial court to direct a verdict for the defendant.
    3. Conrnn~uroay NaaLranNoE-wlzo may be guilty of. A boy ten years old may be guilty of such contributory negllgence as to bar his recovery for injuries caused by the negligence of another.
    4. Cowrainuroay NtaLieEnoE-wlzen minor guilty of. A chlld of the age of ten years who is struck by a street car by reason of his failure to watch out for an approaching car while he is crossing the street is guilty of such contributory negligence as will bar a recovery.
    Action in case for personal injuries. Appeal from the Snperior Court of Cook county; the HoN. WILLnn M. MORWEN, Judge, presiding. Heard in the Braneh Appellate Court at the October term, 1909.
    Reversed with finding of facts.
    Opinion filed December 22, 1911.
    JAMES ft CONDON, for appellant; IRWIN I. LIVINGSTON, of connsel.
    COBURN & CASE and O55IAN CAMERON, for appellee; DAVID T. ALEXANDER, of connsel.
   MR. JUSTICE SMITH

delivered the opinion of the conrt.

Plaintiff, Charles Koehler, a minor, appellee, had jndgment in the Snperior Conrt in an action on the case for personal injnries snstained in rnnning behind one car and being struck by another car of the defendant company, appellant7 passing in the opposite direction on adjacent tracks. The accident happened August 30, 1904, at a place where Forty-eighth street, if it ran through, would intersect Wentworth avenue, in the city of Chicago.

The plaintiff, who was then a hoy of ten years old, in company with another hoy about eight years old, named John Connors, after having been to a shoemaker shop on an errand walked along the west side of Wentworth avenue to the south side of Forty-eighth street. The defendant operates a double track line of street cars on Wentworth avenue. When the boys arrived at the south side of Forty-eighth street a car was approaching from the north on the west track. The Connors hoy, leaving the plaintiff at the southwest corner, turned east to cross over to the east side of Wentworth avenue, crossing the street before the arrival of the southbound car, and then proceeded south on the east side of the avenue, and did not see the accident. The plaintiff did not attempt to cross over to the east side of the street until the car passed and then started to cross the tracks immediately behind the car. The evidence is conflicting as to whether or not the southbound car stopped at this place. As the plaintiff ran from behind the southbound car on to the east or northbound track he was struck by a car passing north on the east track and injured.

The declaration consists of two counts. The first count alleges that the defendant was operating a street railroad along Wentworth avenue, at or near a point where Forty-eighth street would be if extended across • Wentworth avenue, and while the plaintiff with all due care and diligence for one of his age was then and there crossing said street railroad, the defendant by its servants so carelessly and improperly managed the said car that by and through the negligence of the defendant in not giving any warning by the ringing of a bell or otherwise of the approach of the northbound. car, the northbound car then and there struck with great force and violence against the plaintiff and he was injured. The second count alleges the same conditions as are alleged in the first count and differs only in the charge of negligence. It alleges that the defendant, by its servants, so carelessly and improperly managed its car that by and through the negligence of the defendant in starting its car at a high and dangerous rate of speed and in not stopping its car, it ran into and struck the plaintiff.

At the close of the plaintiff’s evidence the defendant entered its formal written motion requesting the court to strike out the evidence, and to instruct the jury to find the defendant not guilty; and also entered two other formal written motions, one requesting a directed verdict as to the first count, and the other requesting a directed verdict as to the second count. The court denied each one of these motions, and the defendant duly excepted.

At the close of all the evidence in the case the defendant renewed all three of the motions. The court thereupon denied a motion for a directed general verdict and the motion for a directed verdict as to the first count and granted the third motion, taking the case away from the jury as to the second count; consequently the only charge of negligence left upon which to base the verdict and judgment is the charge of failure to ring the hell or give warning.

The plaintiff called three witnesses besides himself. Two of these, the physician and plaintiff’s father, testified only to the injuries. The third was John Connors, the eight year old hoy companion who went with the plaintiff to the shoemaker’s, but who left the plaintiff on the west side of Wentworth avenue, crossed Wentworth avenue before the arrival of the southbound car, and kept walking straight ahead south on the east side of the avenue. He did not again look around or see the plaintiff until he had reached Forty-eighth place, a short block distant, when he looked around and saw the plaintiff lying on the ground behind the car. He did not see the accident, and upon the motion of the defendant all of his testimony as to what the plaintiff did, and as to plaintiff’s position after the time they separated on the west side of the avenue until he saw the plaintiff lying on the ground after the accident, was stricken from the record; consequently the only parts of his testimony that threw any light on the case are the following: He saw the southbound car coming. He saw the northbound car before it came to the place where plaintiff was hit. He was in the middle of the block between Forty-eighth street and Forty-eighth place when the northbound car passed him. He does not remember whether the bell on either of the cars rang, or that they made any noise. He saw the plaintiff lying on the east side of the car about '& couple of feet south of where he himself had crossed the avenue. With the exception of these matters the plaintiff’s case rests entirely on his own testimony.

After testifying to what is above stated took place up to the time of their arrival at the southwest corner of Wentworth avenue and Forty-eighth street, the plaintiff testifies that the southbound car was then approaching and his companion crossed over in front of it and was already across the street when the car passed. Plaintiff waited until the car came up, and stopped at the south side of Forty-eighth street, and some one got off. When he last saw Connors he was on the east side of the street, walking south slowly. He testifies:

“When I started across the street I was walking toward the street car that was standing still. * * * I stood there while the car was coming. It came up and stood still and someone got off. While I was standing there. I did not see the car that was going north. I never looked in that direction. I knew that street cars ran north and south on Wentworth avenue at that time. I knew that the cars that went downtown ran on the east tracks and that the cars going sonth toward Sixty-third street, or Forty-ninth street, went on the west tracks. * * * When the car started np I was about three feet back of it and then I ran across just as the car started up and I ran right into the corner of the car that was just going the other way, and was knocked down.”

He says that he did not hear the bell. His evidence further shows that he lived only one block distant from the place of the accident and had lived there for four years, going to school all the time, and that he was accustomed to take the Wentworth avenue cars at Forty-eighth place. This is in substance the whole of plaintiff’s case, with the exception of the evidence as to the extent of the injuries.

It is urged on behalf of appellant that the plaintiff’s case as made out by his evidence was not sufficient to warrant the trial court in submitting the case to the jury. This question is one of law raised by the overruling of defendant’s written motions for a directed verdict at the trial. The determining test upon this question is 'whether or not the evidence with all reasonable inferences to be drawn from it, fairly tended to prove plaintiff’s case and was sufficient to warrant a verdict in his favor. Libby, McNeil & Libby v. Cook, 222 Ill. 206, 210, 213.

Where the undisputed evidence shows that the plaintiff is guilty of contributory negligence the question becomes a question of law and it is the duty of the trial court to direct a verdict for the defendant. North Chicago Street Railway Co. v. Cossar, 203 Ill. 608.

The evidence shows that the plaintiff at the time of the accident was ten years old. A boy ten years old may be guilty of such contributory negligence as to bar his recovery for injuries caused by the negligence of another. Chicago Union Traction Company v. McGinnis, 112 Ill. App. 177, 178; Wilson v. Chicago City Railway Co., 133 Ill. App. 433, 437.

As said by Mr. Justice Adams in the Wilson case, supra, which was an action brought by the appellant in that case who was nine years old, and was injured by a street car on Wentworth avenue under circumstances similar to those shown by the evidence in this case: “Had it not been for the action of appellant in the premises the accident would not have occurred. His conduct rendered the accident unavoidable by appellee. The facts of the case are so conclusive against a recovery that had the verdict been for appellant the court would have been compelled to set it aside and grant a new trial, which would have been merely a waste of time, and the court properly directed the jury to find for the defendant.”

We are unable to discover any facts disclosed by the evidence in this case which show any excuse on the part of the plaintiff for failing to look toward the south in an attempt to discover the car which struck him. He ran rapidly from behind the southbound car against the northbound car which was passing at the time, without looking, and did not see the car until he was struck. “A jury without evidence of conditions or circumstances which excuse looking, where looking would disclose the danger, is not warranted in finding that such failure to look is not negligence.” I. C. R. R. Co. v. Batson, 81 Ill. App. 142, 153, and cases there cited.

We are unable to find any evidence in the plaintiff’s testimony of the existence of any circumstances or conditions that excuse the plaintiff from looking to the south as he passed from behind the southbound car. His direct evidence that he did not look where looking was possible and would have disclosed the danger, convicts him of such contributory negligence as prevents a recovery. L. St. El. R. R. Co. v. Gormley, 108 Ill. App. 59, 63.

In our opinion, the trial court erred in overruling the defendant’s written motion for a directed verdict at the close of the evidence, and the judgment is therefore reversed with a finding of fact. It is unnecessary for us to discuss the question of defendant’s negligence or want of negligence, or the errors in instructions argued in the briefs.

Reversed with finding of facts.

Me. Peesiding Justice Baldwin- took no part in the consideration of this case.


author: Me. Justice Smith

text:
    Anna Rothermel, Appellee, v. Valentine Rothermel, Appellant.
    Gen. No. 16,069.
    1. Amendments and jeofails — when nuno pro tunc order may he entered. After the lapse of the judgment term a nunc pro tune order may he entered if there is sufficient memorandum appearing of record to support it.
    2. Degrees — when jurisdiction to enforce exists. Notwithstanding a final decree in a case the court has jurisdiction to enforce orders entered in the cause for the payment of alimony which orders have not been obeyed.
    Separate maintenance. Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed December 22, 1911.
    E. L. Richtee, for appellant.
    David F. Matchett, for appellee; James P. Har-eold, of counsel.
   Me. Justice Smith

delivered the opinion of the court.

March 8, 1907, Anna Rothermel, appellee, filed her bill of complaint in the Superior Court of Cook county against her husband Valentine Rothermel, appellant, for separate maintenance. March 29, 1907, upon the petition and motion of appellee, the court entered an interlocutory order upon the appellant ordering him to pay temporary alimony of eight dollars per week until further order of the court and in addition pay to the complainant the sum of $35 on or before April 29, 1907, as solicitor’s fees.

April 16, 1907, appellant answered the bill. Subsequently on October 8,1908, appellee filed an amended and supplemental bill of complaint, in which she asked for a divorce from appellant, and he filed his answer to the amended and supplemental bill. To the answer appellee filed a replication. On the hearing of the cause on October 21, 1908, the court entered a final decree granting appellee a divorce and giving her the custody of the children; and in the decree is the following provision:

“The court finds that the complainant is entitled to the sole possession of the household goods, furniture and personal property in her possession, and that the parties have agreed in open court that the retention by her of the said personal property, and the payment to her in open court of the sum of $100, by the defendant, shall be in full satisfaction of all claims that she may have for future alimony for herself as well as claims for solicitor’s fees incurred by her upon this hearing. * * * * And it is further ordered, adjudged and decreed by the court, with the. consent of and in accordance with the agreement of the parties made in open court, that the defendant is forever barred from any rights in the personal property now in possession of the complainant, and that the payment of the sum of $100 made by defendant to the complainant in open court shall be and is in full satisfaction by the complainant of all claims for future alimony for herself or solicitor’s fees in this proceeding, but not in satisfaction of unpaid alimony under former orders entered by this court.”

March 1, 1909, appellee filed her petition claiming and alleging .that certain money was due her under the interlocutory order of March 29, 1907, that the same had not been paid, and asking that a rule be entered upon appellant to show cause why he should not be attached for contempt of court for failure to pay the alleged amount due her. Upon motion of appellee the court entered an order or rule upon appellant to show cause on March 6, 1909, why he should not be punished for contempt of court for failure to comply with the interlocutory order of March 29, 1907.

Appellant filed his answer to the rule denying that anything was due from him under the order, which answer the court on March 16, 1909, found to be inadequate and insufficient and ordered that further answer be made by appellant on March 20, 1909. On that day appellant filed a written motion to vacate the order of March 16,1909. This motion on April 14,1909, was denied by the court and the court thereupon ordered appellant to file a further answer to the rule by April 17, 1909, at which time appellant did file a further answer questioning and denying the jurisdiction of the court and denying that any money was due from him as claimed in the petition.

The court on April 19, 1909, entered an order finding that appellant had made no sufficient answer to the rule to show cause and adjudged him guilty of contempt of court and ordered that he be committed to jail, etc., until he pay $379 or until released by due process of law. From this order the present appeal is prosecuted.

The contention is that the order is void because the court had no jurisdiction to enter it, and second there was not competent evidence properly before the court sufficient to sustain a finding or order that appellant had violated or failed to comply with any previous order of the court, or was guilty of any contempt of court, or that there was due from him $379 under and by reason of the previous order of the court.

A motion is interposed in this court to dismiss the appeal because it was not prayed in apt time and because the court had no jurisdiction to enter the order of May 19, 1909, granting the appeal, and because the appeal was not prayed for and allowed at the term the order appealed from was entered but at a succeeding term. The motion was taken with the case.

We are of the opinion that the motion must be denied. We think the nunc pro tune order allowing the appeal was entered upon sufficient memoranda appearing of record.

In our opinion the contention of appellant that the court had no further jurisdiction over the parties or subject-matter in this case after the entry of the final decree and after the expiration of the term at which the decree was rendered is without merit. The court has jurisdiction at any time to enforce its decrees for alimony in proceedings of this character. O’Callaghan v. O’Callaghan, 69 Ill. 552; Wightman v. Wightman, 45 Ill. 167; Cavenaugh v. Cavenaugh, 106 Ill. App. 209.

In Cole v. Cole, 142 Ill. 19, the court says: “The power over the subject-matter of alimony is not exhausted by the entry of the original order but is under the statute continuing for the purpose at any time of making such alterations thereof as shall appear to the chancellor in the exercise of a judicial discretion reasonable and proper.”

The alimony ordered to be paid, by the decree appealed from, accrued prior to the entry of the final decree for divorce. In our opinion the court had undoubted jurisdiction to enforce the alimony decree at the time when the order appealed from was entered; and we are of the further opinion that the evidence contained in the record sustains the order.

The decree is affirmed.

Affirmed.

Me. Peesidihg Justice Baud win took no part in the consideration of the case.


text:
    Constantine Katsulis, Appellee, v. Confectioners & Bakers Supply Company, Appellant.
    Gen. No. 16,082.
    1. Attachment and gaknishment — effect of wrongfully suing out. If an attachment is -wrongfully sued out an action for damages lies.
    2. Damages — when award of jury not disturbed. An award of damages in an action for wrongfully suing out a writ of attachment will not he disturbed unless the court is satisfied that the verdict is manifestly against the weight of the evidence or that it is the result of passion, prejudice or mistake.
    Appeal form the Superior Court of Cook county; the Hon. Geoege A. DDPtnr, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed December 22, 1911.
    Rehearing denied January 9, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    L. D. Condee, for appellant.
    Iea C. Wood and Wildiam G-arnett, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

This action was brought by appellee, Constantine Katsulis, against appellant, Confectioners’ and Bakers’ Supply Company, to recover damages suffered by appellee by the wrongful act of appellant in suing out and levying’ a certain writ of attachment upon the goods, fixtures and property in appellee’s place of business.

Prior to May 1, 1905, appellee bad for some years been engaged in tbe city of Chicago as a merchant in tbe retail business of fruits, confectionery, etc., on tbe south side of Randolph street just west of State street in the city of Chicago. He sold out bis interest in the business at that place, and on March 29, 1905, together with one Yelasaris, entered into a lease for the premises in question, located on the west side of State street between Madison and Monroe streets, the store being known as 148 State street. These premises consisted of a store on the street level 24 feet wide and 90 feet deep, together with the basement, and was used by appellee as a retail store for the sale and manufacture of confectionery and the sale of soda water, ice cream, flowers, fruit and cigars. The term of the lease was for five years from May 1,1905-, at an annual rental of $15,000, in monthly payments of $1250.

On entering into the lease there was phid by appel-lee and his partner the sum of $2250, $1250 being for the May, 1905, rent, and $1000 being as a guaranty fund held by the lessor. The lease contained a provision whereby the lessor had the right to terminate the same on May 1, 1907, provided the lessor desired to rebuild. The evidence shows that the lessor never desired to rebuild and never has rebuilt upon the property.

On obtaining possession of the premises, appellee and his partner proceeded at considerable expense to prepare the store and basement for their business, removing certain partitions, painting, decorating, and otherwise improving the premises, and on or about May 24, 1905, opened the store for business. Furniture and fixtures had been purchased and placed in the store, consisting of soda water fountain, counters, showcases, shelves, tables, boxes, machinery for candy making, chairs, electric light fixtures, and other appliances and articles necessary for conducting a retail store of that character. The store had also been stocked with candies, fruits, and other goods, and from the time it was opened for business, according to the evidence, there was a good and continually increasing trade carried on in the premises.

Much of the furniture, fixtures and appliances were purchased on credit, and the soda fountain was purchased on credit and a chattel mortgage given to secure the payments therefor. Among others from whom appellee purchased supplies was the defendant below, Confectioners’ & Bakers’ Supply Company, appellant, from whom during the month of May, 1905, appellee and his partner purchased about $369 worth of goods, and on July 22, 1905, there was due on the account the sum of $199.29.

On June 13, 1905, appellee purchased the interest of his partner, Velasaris, in the store, and thereafter was the sole owner of the lease and property contained therein.

On July 22, 1905, without warning to appellee, appellant sued out an attachment against him before a justice of the peace. In the affidavit on which the attachment was issued, nearly every ground named in the Attachment Act was alleged except that of non-residence. Under the attachment the constable levied upon all the property in the store, and the goods and property were removed to appellant’s warehouse, and kept there until August 25, 1905, when an execution was levied upon them; and on September 18th following appellant bought the goods levied upon by it from the appellee for $175.

On the trial of the action before the justice of the peace the writ of attachment was quashed, and a judgment was recovered in assumpsit against appellee, and it was under the execution issued upon this judgment in assumpsit that the property was levied on.

As a result of these proceedings, the business of ap-pellee was broken up and destroyed, and by arrangement with, the landlord, appellee subsequently surrendered his lease.

Two questions only are presented by the case: First, was the plaintiff entitled to a judgment against the appellant, and second, is the judgment obtained below excessive in amount?

Upon an examination of the record, we think the evidence shows that the appellant had no ground for suing out the attachment, and that the attachment was wrongfully issued against appellee; and a levy having been made under it upon substantially all of appel-lee’s property in the store, the property so levied upon was taken from the store and placed in appellant’s warehouse. This necessarily had the effect to break up and destroy appellee’s business. According to the testimony, appellee was conducting a fairly successful business, in view of the time in which he had been engaged in business at the store occupied by him at that time, and it clearly appears from the evidence that the direct result of the attachment was the destruction of appellee’s business. We are of the opinion upon the evidence that appellee was entitled to a judgment against appellant for this illegal and unwarranted levy upon all of the property substantially in his store, and the destruction in consequence of his business.

We find no error in the rulings of the court in admitting, or excluding evidence.

Upon the question of damages we are not disposed to interfere with the judgment of the court below, for the reason that the amount thereof was peculiarly a question for the jury and the trial court to determine. The evidence tends to show that the lease of the premises held by appellee was of considerable value and this lease, as a result of the action of the appellant, appellee was obliged to surrender or to dispose of in the best way he could. The evidence shows that the business was a growing business, and if left undisturbed appellee might, and probably would have, built up a flourishing trade in the locality where he was located. The exact amount of damages is quite difficult to estimate, and the case is of a character where that question is for the jury. Unless we are satisfied that the verdict of the jury is manifestly against the weight of the evidence, or that it is the result of passion, prejudice or mistake, we have no warrant in the law for disturbing it. North C. St. R. Co. v. Zeiger, 182 Ill. 9. The verdict of the jury was for $8000 in favor of ap-pellee. The trial judge required appellee to remit $1,500 from the verdict, and entered a judgment of $6,500.

We find no reason in the record for disturbing the judgment, and it is accordingly affirmed.

Affirmed.

Mr. PresidiNG. Justice Baldwin took no part in the decision of the case.


author: Mr. Presiding Justice Baldwin

text:
    John Heide, Appellee, v. Albert E. Schubert, Appellant.
    Gen. No. 15,920.
    1. Trial — what memorandum cannot he used in argument to jury. Upon objection made the court should not permit the reading from a stenographic report of the testimony nor from any memorandum or report made of it during the trial.
    2. Trial — when reading from stenographic report not improper. If counsel has read from memoranda pui-porting to contain a statement made by a witness, opposing counsel may, for purposes of contradiction, read from the stenographic report the testimony of such witness.
    3. Verdicts — when set aside as against the evidence. The Appellate Court should reverse a judgment where it appears that the verdict upon which the judgment is based is against the clear weight and preponderance of the evidence. The test is that the judgment should be reversed when it is clear that the party holding the burden of proof has not established his case by a preponderance of the evidence.

      4. Verdicts — when preponderance required of plaintiff not established. Where the uncorroborated testimony of the plaintiff is directly contradicted by the testimony of the defendant and two other witnesses in a material matter, the judgment cannot stand, for, under such conditions, the plaintiff fails to make out his cause by such preponderance of evidence as the law requires.
    5. Personal injuries — what essential to recover. In order to recover for personal injuries it must appear that the plaintiff at the time and immediately before the accident was in the exercise of ordinary care for his own safety.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Henry V. Freeman, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed with finding of fact.
    Opinion filed January 16, 1912, on rehearing.
    JohN R. Phxlp and W. S. JohusoN, for appellant.
    McG-oortV & Pollock, for appellee.
   Mr. Presiding Justice Baldwin

delivered tlie opinion of the court.

This is an appeal from a judgment for $1,000 in favor of appellee, in a suit for personal injuries brought in the Superior Court of Cook county by John Heide (appellee), against Albert E. Schubert (appellant), based upon an injury received by appel-lee on the 27th day of January, 1904, by falling through a coal hole, upon the premises of appellant.

It appears that appellant was conducting a saloon located on Cottage G-rove avenue and Sixty-third street; that upon the back porch of said saloon there was an upright door, leading through a partition, the entrance and opening into the coal hole. This partition, in which the door was located, was under a stairway that came down from the second story of the building to this back porch. Inside the stairway, at its sill, there was a strip of flooring about fifteen inches wide extending out over the coal hole to that extent, the remainder of the coal hole being left uncovered; and when the coal was to be put into the basement of the building, the door was opened and the coal thrown in and down through this opening. Just inside of the upright door (which was of the size of an ordinary door), and on the wall of the building, there was an electric switch, which controlled an electric sign over the side entrance to the saloon. There was also an electric meter just inside the door, from which the employes of the Electric Light Company took its readings. The electric switch was near enough to the door so that it was not necessary to go inside to turn it on. When not in use the door was kept closed and locked with a padlock, and the key kept in the pocket of the appellant. This key was necessary whenever the door was to be opened, which was only when the switch was to be-turned on for the purpose of illuminating the electric sign at the side entrance, and also when the meter was to be read by the employes of the Electric Light Company, as well as when coal was delivered at the premises. The coal hole was so situated that coal thrown into it would fall within a few feet of the furnace. The distance from the opening in the floor to the bottom of the coal hole was about six feet. Between the coal hole and the furnace there was a stone partition in the basement, in which there were two openings, one of which was about one and one-half feet from the furnace. The coal in the basement was shoveled from this latter opening directly into the furnace.

Heide had been employed as bartender for appellant for about five months prior to the date of the accident. In the discharge of his duties he was frequently in and out of the family room, and out on this back porch, and it appears that during the five months he repeatedly saw this door which opened into the coal hole.

Appellee’s testimony upon the trial was to the effect that on the evening in question he was directed by appellant to turn on the electric light, and that appellant then handed him a key with which to unlock the padlock on the door; that this .occurred while appellant was sitting at a table in the saloon; that ap-pellee never knew what the door was for; that, in going to turn on the lights he walked through the saloon and out upon the back porch, where there were no lights and where he says he had never been before; that with the key which appellant handed him he unlocked the door, opened it, and felt around to find the-switch; that in trying to find it he took a step inside and fell down into the coal hole, and received severe injuries.

We are asked to reverse the judgment in this case upon several grounds; principally upon the ground that the verdict of the jury is against the clear weight and preponderance of the evidence, upon the question of the negligence of the defendant, and whether the plaintiff was at the time of the accident in the exercise of ordinary care for his own safety. It is also complained that the court below erred in permitting the attorney for appellee to read from a stenographic report of a portion of the testimony while making his argument to the jury; and also that the amount of damages is excessive.

Considering these contentions in their reverse order, we are of the opinion that upon the testimony offered for the plaintiff, the injuries received justified a verdict for the amount fixed by the jury if appellant was liable for the accident.

As to the alleged error on the part of the court in permitting the attorney for appellee to read to the jury from a stenographic report of the testimony while making his argument, we think the contention is without substantial merit. It is undoubtedly true that, upon objection made, the court should not permit the reading .from a stenographic report of the testimony, nor from any other memoranda or report made of it during the trial. In this case, however, it appears that only a small portion of the testimony was thus read, and that even this was done because appellant’s attorney, while addressing the jury, himself read to it what he claimed to have written down as a statement of a witness at the time it was given, whereupon counsel for appellee read from the stenographic report of the evidence a portion of the testimony of the same witness. Of this the appellant may not now complain.

The principal contention of appellant that the verdict is against the manifest weight of the evidence is a far more serious proposition. The declaration charged negligence on the part of appellant in that while he was the owner and occupier of the premises in question with the coal hole underneath the stairway, and knowing that the plaintiff was not familiar with it, that he did then and there wrongfully permit the hole to he and remain without any covering whatsoever ; that to operate the .switch controlling the electric light was outside the employment of appellee, and that he had never been told or had any knowledge that the hole underneath the stairway was uncovered, notwithstanding which he was given the key to the door hy appellant, and directed to turn on the electric light, without being informed as to the hole, and that in attempting to do as directed he stepped into the coal hole and was seriously injured.

From the testimony it appears that appellee had been employed as bartender, with general duties about the premises, for five or six months prior to .the accident, and it does not affirmatively appear that appellee had ever theretofore turned on the electric switch.

From appellee’s testimony it appears it was not his duty to turn it on. As to whether or not he was then directed to turn it on by appellant, there is a direct conflict in the testimony. Appellee testified: “In the rear of the house there was an electric sign, which shows ladies entrance. It wasn’t lit yet, so I called Mr. Schubert’s attention to it, and Mr. Schubert handed me a key and told me to go out and turn on the lights. * * * I went out, tried to turn them on. I unlocked the door, stepped in and felt around with my left hand, and when I was stepping down I went in on the coal. I had never been there before.”

Opposed to this testimony of appellee is the testimony of Schubert, appellant, and of one Chris W. Minnick. Appellant testified that on the evening in question, “I said to Mr. Heide, ‘It is seven o’clock; go off your watch, your time is up.’ He said ‘I am in no hurry. ’ He came to me and said, ‘ G-ive me the keys; I want to turn on the switch; turn on that light — side light,’ and I said to him, ‘John, I will do this myself, let it alone, ’ and he came a second time. Then I warned him. I said, ‘Do you know all about it — about turning on that sign?’ He said ‘Yes.’ I said, ‘Do you know about the coal hole being there?’ He says, ‘Yes.’ I then gave him the key and I warned him again. I said, £Be careful, look out for the coal hole,’ and he said, ‘I know all about it.’ ”

Chris W. Minnick: “I heard Mr. Schubert say to Mr. Heide, ‘John, go to your supper,’ and Mr. Heide came to the table where we were sitting and said to Mr. Schubert, ‘Mr. Schubert, give me the key and I will turn on the electric switch.’ Mr. Schubert said, ‘No, John, you go to supper and I will do that myself.’ Mr. Heide came back the third time asking for the key. Mr. Schubert said something like this: ‘If nothing else will do you, here are the keys, but be careful.’ Mr. Schubert gave him the key and Mr. Heide went to the rear.”

As to appellee’s familiarity with the premises, he testified he walked through the saloon and another room and out on to the back porch, where, underneath the stairway there was a box 'built in which the switch was located, and that he had never been there before. Upon cross-examination he stated he had seen the door all the time during the five months he had worked there, but it was all the time locked and never saw it open, and never saw them put coal in there. He did not know there was any meter inside the door. He testified there was a basement underneath the floor where the porch was, and that he used to go down there, though he never had anything to do with the furnace and never was in that part where the furnace was.

As opposed to this was the testimony of the appellant that he had seen Heide in the basement attending to the furnace, and that Heide had actually seen coal put in through the door, and appellant himself had seen Heide open the door, and had known of his being present when the coal was being put in. He testified also, that he knew of his own knowledge that Heide had opened the door out there for the men to read the electric meter.

One Aloysins Smith, testified for appellant, that Heide often went into the basement, and back into that portion of it where the furnace was, and also into the coal hole, and that Heide knew there was no stairway in the coal hole.

It further appears from the record that one Edward A. Schubert, a son of, and a witness for appellant, testified, that he had seen Heide in the basement on numerous occasions; that in the early part of April he saw Heide in his father’s saloon, talking with his father, and he testifies: “I heard him ask my father to take him back, and that it was his own fault that he was injured.”

Appellant Schubert, testified as to this, “When Min-nick and I were carrying Heide up out of the basement just after the accident, I said, ‘John, I told you to look out-for that hole,’ and he said, ‘I know it, but forgot all about it. ’ ”

Chris W. Minnick testified (speaking of what took place immediately after the accident, when he helped carry Heide upstairs), in response to the question-— “What was said, if -anything, by Mr. Heide to Mr. Schubert, if anything, at that time?” “Mr. Heide said, ‘Yes Mr. Schubert, but I forgot about the coal hole.’ ”

Appellee, however, denied each and every of these various statements and testified directly to the contrary.

It is well settled that this court should reverse a judgment where it appears that the verdict upon which the judgment is based is against the clear weight and preponderance of the evidence. The test is that judgment should be reversed when it is clear that the party holding the burden of proof has not established his case by a preponderance of the evidence, Donelson v. E. St. L. R. R. Co., 235 Ill. 625-9; Ill. C. R. R. Co. v. Cunningham, 102 Ill. App. 206-8; Seigmund v. Strackbein, 140 Ill. App. 454.

Where the uncorroborated testimony of the plaintiff is directly contradicted by the testimony of the defendant and two other witnesses in a material matter, the judgment cannot stand, for, under such conditions, the plaintiff fails to make out his cause by such preponderance of evidence as the law requires. Seigmund v. Strackbein, supra; Wolf v. Scully, 151 Ill. App. 263; Alexander v. Potts, 151 Ill. App. 587.

In the light of the testimony before the jury, and especially of that portion to which we have expressly referred we think it clear that the plaintiff failed to establish his case by a preponderance of the evidence, and it, therefore, becomes our duty to reverse the judgment of the court below.

In addition to what has been said, we are forced to the conclusion, from the testimony of the plaintiff himself, that he was not in the exercise of ordinary care at the time of the accident, and that, therefore, he cannot recover in this case. Upon this phase of the case, the plaintiff testified upon the trial as follows:

“When I opened the door (the door to this coal hole) there was no light in there and no windows. I had never been there before. I opened the door — unlocked the door with the key and I felt for the keyhole, because it was darle, and I unlocked the door; so it was dark in there and I didn’t know exactly where the switch was what we turned on the light with; so I felt around with my left hand, all around, there; so I couldn’t find it; so I made another step and I stepped into the hole and went down, fell down on the coal. I never knew what the door was for. I never asked anybody what the door was for while I was there working.” Ab. pp. 16 and 19; Rec., 67 and 84.

In Casey v. Adams, 137 Ill. App. 404, the court says: ‘ ‘ The burden of proving that deceased was not guilty of contributory negligence was upon the plaintiff in error. * * * Upon these facts, about which there is no controversy, it is impossible to conclude' that deceased was exercising due care. On the contrary the natural and common sense conclusion is that he was negligent and that his negligence contributed to the injury. ’ ’

In Jorgenson v. Johnson Chair Co., 67 Ill. App. 80, the court says: “The shipping room through which the shaft ran was not a part of the territory where she worked, it was not lighted at night, and in venturing into this, as she claims, to her, unfamiliar part of the building, and groping about in the dark in a chair factory, the plaintiff was not exercising ordinary care. ’ ’

In Kammerer v. Gallagher, 58 Ill. App. 561, the court says: “Without any precaution, he walked into the passage, which was dark, and by reason of some break in the steps, fell, and has recovered for the injury alleged to have been sustained by the fall. The law of this state has, after a long deviation, returned, and now holds As á condition to recovery by the plaintiff that the person injured be found to be in the exercise of ordinary care for his own safety.’ ”

See also Bentley et al. v. Loverock, 102 Ill. App. 166; Swift & Co. v. McInerny, 90 Ill. App. 294; Seed v. Maniere, 124 Ill. App. 127.

In the light of the views thus expressed, it becomes our duty, not only to reverse the judgment of the court below, but to enter a judgment here against the appel-lee upon a finding of fact.

Judgment reversed with a finding of fact.