text:
    George E. Welsh et al., Plaintiffs in Error, v. William P. Shade, Executor, et al., Defendants in Error.
    1. Wills—presumption against intestacy. Where a party dies testate it is presumed that his intention is to dispose of all of his estate by will and the courts are required if possible to so construe his will that all of his estate shall pass thereby.
    2. Wills—construction where one beneficiary was dead at the time of execution. If the residue of an estate is bequeathed .to two beneficiaries in equal parts with the provision that in the event of their failure to appear and make claim then such residue should pass to another designated beneficiary, and it appears that one of such original beneficiaries was dead at the time of the execution of the will, the other beneficiary however appearing and making claim, no part of the estate of the testator is to be treated as intestate property but one-half thereof is to go to the original beneficiary named and the other half to the contingent beneficiary.

      Error to the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 14, 1911.
    O. E. Laird, for plaintiffs in error.
    Le Forgee, Vail & Miller, for defendants in error.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

Robert S. Welsh died in February, 1905, leaving a last will and testament. At the time of his death he was a widower and had never had any children. He made various bequests in his will providing for the distribution of all of his estate. After several small bequests his will contained a clause designated as the fourth clause of the will and which is as follows:

‘ ‘ Fourth. After the payment of sums named in foregoing items, I hereby give, devise and bequeath all the residue of my estate, personalty and realty, share and share alike, to my nephew Harry Welsh, and my niece, formerly known as Lena Welsh, being son and daughter of my brother, James Alexander Welsh, deceased, formerly residing at Mount Rock, Cumberland county, in the State of Pennsylvania. If said above named nephew and niece cannot be or are not found and this bequest cannot properly be paid to them at the end of two years after my death, I then direct that my executor shall pay, or cause to be paid, all of the said residue of my estate to the proper officers of what is now known as the Bethsaida Protestant Hospital, of the city of Decatur, in the County of Macon and State of Illinois, and shall become a part of the general fund for maintenance of said hospital, and after such payment by my executor to said hospital, my above-named nephew and niece, or their heirs, shall be forever debarred from any further title or interest in such funds as shall constitute the remainder of my estate, and I hereby empower and direct that my said executor shall sell any real estate of which I may be the owner at my death, and he shall make proper deeds to purchaser and shall convert proceeds for the purposes named above. I desire that at my death my executor shall deliver to Mrs. Sarah E. Boone the locket on my watch chain and three certificates of stock in the Ohio and Indiana Oil Company bearing numbers 868, 875 and 1,142, being for five hundred shares each, and also to deliver to said Mrs. Sarah E. Boone my rubber-tired buggy, on account of her kindness and care of me. I desire that my watch and chain shall be given to my brother-in-law Earl G-ood and that my clothes shall be given to said Earl Good and his brother James Good, and my bed, bedding and furniture shall be given to my sister-in-law, Miss Lillie Good. My violin shall be given to Miss Laura Hall, and my diamond ring shall be given to Wm. P. Shade. I desire that the same pallbearers shall act for me who acted in that capacity at my wife’s funeral, and the funeral shall go over the same route, and I desire that the companion picture of my wife shall be placed in my coffin.”

This will bears date October 15, 1904. The nephew designated in the fourth clause of this will as Harry Welsh had died in the year 1900, prior to the execution of this will. Eighteen months after the death of her uncle, Lena Welsh, one of the beneficiaries named in the fourth clause of the will, appeared, established her identity, and filed her petition in the County Court setting up the death of her brother in the year 1900 and setting forth that she, with an uncle, George E. Welsh, a brother of the testator, were the only heirs of this estate, and asking that the funds devised under the fourth clause of the will be paid one-half to her under the provisions of the will and one-half of the remaining one-half bequeathed to her brother under the will and that the other one-half bequeathed to her brother, Harry Welsh, be paid to her uncle, George E. Welsh, contending that by reason of the failure of her brother to appear and claim his portion of the estate by reason of his death, that portion devised to him by the fourth clause of the will became intestate property and that she and her uncle inherited that half from the testator in equal parts. George E. Welsh joined with her in this petition but afterwards filed an amended petition in which he claims to be the sole heir of his brother, the testator, and that one-half of the property designated by the fourth clause of the will was intestate property and that he was entitled to receive the one-half bequeathed to the nephew, Harry Welsh. The Bethsaida Protestant Hospital named in the fourth clause of the will filed its petition setting forth the facts and claimed the right to have the property paid to it under the provision of the will, claiming that by reason of the failure of Harry Welsh to appear and by reason of his death and his inability to appear, that it then became entitled to the property. The County Court ordered one-half of the property included in the fourth clause of the will paid to the niece, Helena Welsh, and the other half to the Bethsaida Protestant Hospital. Appeal was taken to the Circiut Court from that order, where the judgment and order of the County Court were affirmed. Appellants now bring the cause to this court upon a writ of error.

It is a familiar rule in the consideration of wills that where the party dies testate it is his intention to dispose of all of his estate by will, and where an attempt is made so to do, the courts are required, if possible, to so construe the will that all of the estate shall pass by it. The present will is so plain in its language that no reasonable contention can be made that testator did not intend and provide that his nephew, Harry Welsh, and his niece, Lena Welsh, were living at the time of his death and appeared within the period of two years that they should have all the property included in paragraph four of his will, and the position taken by appellants that before either the nephew or the niece could receive any property under the terms of this clause of the will that both nephew and niece should appear and claim their property within the period of two years provided and that before the Bethsaida Protestant Hospital could take any of the funds provided in this clause it was necessary that neither nephew or niece appear and the fact that the niece alone appeared, coupled with the fact of the impossibility of the nephew appearing, defeated the entire devise and bequest made by this clause of the will and that none of the beneficiaries therein could take thereunder, but that the clause became absolutely void and the property descended as intestate property, is not tenable. Neither can it be held that by reason of the impossibility of the nephew to appear the property became intestate and was inherited in equal parts by the brother Gleorge E. Welsh' and the niece Lena Welsh, she being the sole heir of her deceased brother. Where the intention of the testator can be determined from the terms of the entire will it then becomes the duty of the courts to enforce and carry out the intention of the testator, and it is evident upon consideration of the entire will that the testator at no time contemplated or intended that his brother Gleorge E. Welsh should inherit or receive any portion of his estate; his name is not mentioned in the will although the names of other relatives are. It is also contended by appellants that the testator by the use of the language, “if the said above-named nephew and niece cannot be found” he intended to and did bequeath the property to the nephew and niece as tenants in common, but this contention is equally untenable for the reason that in the clause of the will it provides that one-half of that fund shall be paid to each of them, and the provision that the nephew and niece should each be paid one-half refutes the contention that either should have any interest in the property of the other. It is evident from the language of this will that it was the intention of the testator to give to the nephew and to the niece, each, one-half of the property described in this fourth clause of the will, should either one appear and claim such property within the limit of two years provided, and in the event that either the nephew or the niece could not be and was not found so that the portion given to him or her by this will could be received by him or her, then the portion of the estate given to such one as did not appear and could not be found should go to the Bethsaida Protestant Hospital of the City of Decatur, and if both failed to appear and could not be found so that the payment could be made to them then the entire fund in this clause was to go to the hospital. With Ahe contention of appellants that by reason of the nephew pot being in existence at the time of the execution of the will the devise to him was absolutely void and that there is but one devise or bequest in this clause of the will and therefore the entire clause of the will fails and all the property therein descends as im testate property, we cannot agree; it is evident from the .language used in this clause that the testator was in doubt whether either or both nephew or niece were alive or could, by any possibility, be found, and that he had in mind at the time of the making of this will the condition which is shown to exist by this record, and that the bequest made to the nephew was solely on condition that he was alive and did appear and claim the property or could be found so that it might be paid to him, and that in case he should be dead or could not be found or located and did not appear to claim the property, the. will then devises the property to the Bethsaida Protestant Hospital absolutely. That condition is not a condition precedent as contended for by plaintiffs in error and we are of the opinion that the County Court correctly construed this will and that its order directing the payment of one-half of the fund provided in this clause to Helena Welsh, the niece, and the other one-half to the Bethsaida Protestant Hospital of the City of Decatur was correct and that the Circuit Court made no error in confirming the order of the County Court.

There is no error in this record, and the decree is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Philbrick

license: Public Domain

text:
    The People of the State of Illinois, ex rel. C. T. Biddison, Appellant, v. The Board of Education of Paris Union School District, Appellee.
    1. Schools—what powers conferred upon board of education by special act. While a board of education acquires all its powers from the special act which creates it, if such powers are not defined by such act and the board is given all powers conferred by the general law pertaining to schools upon like boards etc., such general law must be examined to ascertain the extent of the powers conferred.
    2. Schools—power to enlarge boundaries. Held, that the special act under consideration in this opinion which created a school district did not prohibit the enlargement of the boundaries thereof but left the question of taking additional territory to the provisions of” the genera] school laws of the state.
    Editor’s note : Since this opinion was printed we have been informed by Mr. Presiding Justice Philbrick that this cause was transferred to the Supreme Court for want of jurisdiction in the Appellate Court.
    Quo warranto. Appeal from the Circuit Court of Edgar county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 14, 1911.
    R. S. Dyas, W. H. Clinton and Harvey Gross, for appellant.
    H. S. Tanner and J. E. Dyas, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

Upon leave of the court granted, the State’s Attorney of Edgar County 'filed an information, upon the relation of C. T. Biddison, in the nature of a quo warranto, setting forth that the defendant, Board of Education of the Paris Union School District, was unlawfully usurping and exercising the powers of school directors over the north half of the southwest quarter and the north half of the southeast quarter of section twelve, township thirteen, north, range twelve, west of the second P. M. To this information defendants pleaded the organization of the Paris Union School District by the special act of the legislature passed and in force April 15, 1869, that by virtue of that act the district was organized out of certain territory, described therein, which included parts of school townships number thirteen and fourteen, north, range twelve, west of the second P. M. and parts of school townships numbered thirteen and fourteen, north, range eleven, west of the second P. M., and that by virtue of said act the Board of Education was given full and complete authority over the schools of said district, and that in addition to giving them powers of a board of education, as conferred by the statute relating to public schools, they were clothed with and empowered to perform all of the acts of school trustees over the territory contained in said district, and that the rights and powers of the school trustees of the various townships from which the territory was respectively taken, were deprived of exercising any power as school trustees over said territory; that a petition was filed by two-thirds of the legal voters of the territory comprising the north half of the southwest quarter and the north half of the southeast quarter of said section twelve, town thirteen, north, range twelve, west of the second P. M.; that said petition was filed with defendants, as trustees of schools, requesting the annexation of that territory to the Paris Union School District, and also with the school trustees of township thirteen, north, range twelve, from which said territory was proposed to he taken, and that defendants at their regular meeting on the sixth of April, 1908, acting as school trustees over said territory, granted the prayer of said petition, and that the prayer of said petition was also granted by the trustees of schools of township thirteen, north, range twelve, at their regular meeting, held in said township thirteen, north, range -twelve, on the sixth day of April, 1908. A demurrer was filed to this plea by the people, the demurrer was overruled by the court, and relator electing to stand by his demurrer, judgment was rendered thereon, the writ quashed and the information dismissed at the costs of the relator.

As a cause for reversal of the judgment appellant insists that the special act which created the Paris Union School District also created a school township co-extensive with the territory of the district, also that the special act does not authorize or empower the change of the boundaries of the district by the addition of territory thereto, also that if this special act only created a school district, that district is in parts of four separate school townships and before the district could be enlarged it was necessary to file a petition with the trustees of schools of each of these four townships, and that it was necessary that the petition be acted upon separately by the trustees of each of these four townships.

If the special act created a school district, and conferred upon the Board of Education of the school district not only the powers of a board of education but also the additional powers of school trustees over the .territory of which this district is composed, then the boundaries of the district may be enlarged if authority to enlarge its boundaries is given to the proper officers by the special act under which the district was created.

The title of the special act creating this district is as follows: “An Act to form and establish the Paris Union School District.”

Section 1 provides: “That all that district of country embraced within the following boundaries, to-wit: (Here follows a description of the land embraced therein) is ordered to be made and constituted a permanent school district by the name of the Paris Union School District, and no territory shall be taken therefrom except by act of the legislature.”

Section 2 names the members of the first board of education and gives them the exclusive management and control of the district, creating them a body corporate and politic, with all of the authority with which a corporation of that character is clothed, gives them all of the authority and powers of a hoard of education under the general school laws.

Section 6 provides that all of the school lands, school funds and property belonging to the various townships out of which this district was created, held and owned for school purposes, should be divided between the Paris Union School District and the portions of the townships not contained in said district, in proportion to the number of persons under twenty-one years of age, etc.

Section 10 is as follows:

“The said board, in addition to the powers now given by law to school directors and the powers herein granted, shall possess all the powers and privileges of trustees of townships, for school purposes, and shall be recognized and regarded by the county superintendent of schools, county clerk and all other officers of this state as possessing all the powers, privileges and rights of trustees of congressional townships of this state, and are hereby required to perform for said district all the duties of such trustees as well as those of directors, not inconsistent with this act. ’ ’

This special act does not attempt in any manner to enumerate or define any specific powers conferred upon the Board of Education, either as a board of education or as trustees of schools, but section 2 provides that as a board of education they shall have all the powers then possessed by boards of education under the school laws of this state. Section 10 provides that in addition to the powers given by the general laws to school directors and in addition to the powers granted by this act, they shall possess all the powers of trustees of townships for school purposes. This section does not attempt to define what these powers or privileges shall be, but also leaves the general school law to determine them. Section 10, therefore, clothed the Board of Education of this district with all the powers and authority of school trustees of the state, except the power to diminish the district, which power they were deprived of by section 1 of this special act.

Delator contends that this Board of Education had no powers except those given to it by the special act, under the rule that municipal corporations have no powers except those conferred by the act under which they are created. While it must be conceded that a municipal corporation has no power and can perform no acts not authorized by the legislature, this special act does not attempt to specifically name or define any powers conferred on this Board, either as a board of education or as school trustees, but leaves those powers to be determined by the general school law of the state. Under sections 45, 46 and 47 relating to public schools, provision is made for the change of the boundaries of districts which lie either wholly in one township or in separate townships; and the legislature by leaving the powers of the board of education and of the trustees of schools over this territory to be determined by the general law of the state, thereby gave to it all the powers given a board of education or to trustees of schools conferred by the general school laws except in so far as those powers have been restricted by the special act, and the only restriction placed thereon was the provision that no territory should ever be taken from this school district.- If the effect of the special act creating this district is as contended by appellant, and that no authority is given to change the boundaries of this district and that no powers were created except those specifically enumerated in this special act, then it was unnecessary-for the legislature to have provided that no territory should ever be taken from the district, and by providing that the district should not be diminished it is evident that the legislature contemplated that the general school laws relating to change of boundaries of school districts should be applicable to this district except wherein such powers are restricted by the act.

Even if it be conceded that the act of the legislature did in effect create a new township, the addition of the disputed territory to the Paris Union School District does not change or affect the boundaries of the school township so created.

Section 47 of chapter 122 provides for the change of the boundaries of the district where they lie in separate townships and it is not necessary under the general school law that a school district shall lie wholly within one township. Where a district lies in separate townships, section 48 of chapter 122 makes provision for the management and distribution of the funds of the separate townships in which the district lies.

The special act creating this school district does not purport to create a school township; it does not designate by name or number any township, or designate how the township shall be known, but gives to the Board of Education of the district all the powers, rights, and privileges of the trustees of schools, and deprives the trustees of schools of the four townships out of which this territory was taken of all authority over this territory as school trustees. By virtue of this act the Board of Education of this school district, ach ing as school trustees over the original territory composing the district, was the proper body with which the petition for the annexation of this territory should be filed, and the trustees of schools of the respective townships out of which this territory was created, except the township from which the territory, added to the Paris Union School District, was taken, were deprived of any authority or right to pass upon the question of the annexation of additional territory to the Paris Union School District. It was, therefore, only necessary to file the petition with the Board of Education, acting as school trustees of the Paris Union School District, and with the trustees of school township number thirteen, north, range twelve, west of the second P. M., from which township the territory proposed to be annexed was taken.

In our opinion, the special act did not, by reason of conferring on the Board of Education of the district the additional powers of trustees of schools over the territory of which the school district was originally composed, create a school district the boundaries of which could not be enlarged; but left the question of adding additional territory to the district to the provisions of the general school laws of the state.

. The plea properly alleges that the trustees of the township from which the territory was taken and the Board of Education of the Paris Union School District, acting as township trustees over the territory composing the Paris Union School District, have acted in strict conformity with the law regarding the taking of territory from one school district and annexing it to another, and this law having been fully complied with and all the steps necessary therefor having been set forth in the plea filed by defendants, the court properly overruled the demurrer to the plea, and upon relator electing to stand by his demurrer, rendered proper judgment thereon, quashing the writ and dismissing the petition at relator’s costs, and that judgment is affirmed.

Affirmed.


text:
    Martin Flennor, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Damages—when notice to remove obstruction essential to recovery. If the embankment in question was originally constructed by a company other than the defendant and that embankment created a nuisance or obstruction of the natural flow of water and said obstruction continued after the acquirement of the right of way by the defendant company, before the laintiff can recover he must show that the defendant had notice of such condition and that a demand had been made upon the defendant to remove the same.
    2. Damages—right to recover for continuing nuisance. Where damages occur by reason of a continuing nuisance a new cause of action is created whenever the loss or damage is occasioned by reason of the continuance of such nuisance.
    3. Instructions-—must not exclude theories. Instructions must not exclude from the jury the consideration of theories of recovery relied upon in the declaration which the evidence tends to sustain.
    Appeal from the Circuit Court of Coles county; the Hon. Morton W. Thompson, Judge, presiding. Heard in this court at the November term, 1910.
    Reversed and remanded.
    Opinion filed October 14, 1911.
    Rehearing denied and opinion modified November 7, 1911.
    H. A. Neal, for appellant; L. J. Hackney and George B. Gillespie, of counsel.
    Albert C. Anderson, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought by plaintiff against defendant to recover damages for the obstruction of a natural flow of water on plaintiff’s land across the right of way of the defendant railroad company, by reason of which it is alleged the water accumulated upon the plaintiff’s land and destroyed and injured his crops. The trial below resulted in a judgment against defendant for $175, from which defendant prosecutes this appeal.

The embankment of defendant’s railroad which it is claimed caused the obstruction to the natural flow of water was erected at the time of the construction of the railroad some fifty years ago. At the time of the construction of this railroad, plaintiff’s father was the owner of the land and continued to own it until 1886 when it was conveyed to the plaintiff. Defendant acquired the right of way and the possession of the tract long after the original construction of the embankment, and insists that it is not liable in this action.

The original declaration contains four counts based upon alleged losses by plaintiff by fire occasioned by the negligence of the defendant railroad company. These counts were withdrawn by plaintiff before the cause was submitted to the jury, and defendant insists that upon the dismissal of these counts a judgment should have been rendered as to them against plaintiff for costs and that failure to do so was error. While the contention of- defendant upon this question is correct, there is nothing in the record to show that defendant was in any manner damaged by reason of the failure of the court to render such judgment. Under the present statutes, there was no additional clerk’s or sheriff’s costs occasioned by reason of these counts being in the declaration, and the record does not disclose that any witnesses were summoned upon this question or that any costs were taxed against defendant by reason of these counts in the declaration and so far as the record discloses, defendant has sustained no injury or damage by reason of the failure of the court to render such judgment.

The fifth and sixth counts are virtually the same and charge the construction of said railroad embankment by the railroad company previously owning the same and the improper construction of the embankment by the railroad company whereby the flow of water across the plaintiff’s land was obstructed. These counts aver notice to the defendant company to remove said obstruction and that after such notice defendant wholly failed and neglected to remove the obstruction.

The seventh count avers the ownership in the defendant of the embankment and the maintenance and operation of the railroad across the farm of the plaintiff and avers the maintenance of said embankment without proper and sufficient culverts or sluiceways or other- openings to permit the natural flow of water. This count also avers that defendant by artificial means has caused large bodies of water to fall and deflect from its right of way and to flow upon the land of the plaintiff, to the damage of the plaintiff.

The additional count filed avers the original construction of the embankment and that in its construction there was a culvert to permit the passage of water in the natural watercourse from and off of plaintiff’s land but that defendant closed up said culvert or opening and provided no sufficient means for the flowing of the water which had flowed through said opening and that by reason thereof large bodies of water collected, etc., to the damage of the plaintiff.

The record discloses that the embankment' of this railroad was constructed by other parties, that the defendant had nothing whatever to do with the original construction of this embankment, and that all its rights in the property which it now owns and operates across the plaintiff’s farm were acquired long after the original construction of the railroad. The record further discloses that the water would naturally flow from plaintiff’s land across and through defendant’s right of way if a sufficient culvert or outlet was provided therein, hut that there is no such outlet and that by reason thereof the natural flow of the water off from plaintiff’s land is obstructed.

The contention of the defendant that if the embankment was originally constructed by a former company and that that embankment created a nuisance or obstruction to the natural flow of the water and that said obstruction has continued after the acquirement of the right of way by the defendant railroad company, before the plaintiff can recover he must show that the defendant had notice of such condition and that a demand had been made upon the defendant company to remove same, is well founded. Groff v. Ankenbrandt, 124 Ill. 51; Wabash R. R. Co. v. Sanders, 47 Ill. App. 436.

The record does not .disclose that any notice of the conditions along this right of way at the point complained of was given to the defendant company or that any demand was made by plaintiff upon defendant to remove the conditions or the nuisance thus occasioned. The letters offered in evidence in support of the contention that notice was given and demand made are not sufficient for that purpose.

The contention of the defendant that the railroad embankment was not constructed by it or that all of the conditions that existed at the time of the commencement of this action, the damage or injury complained of, were produced at the time of the original construction of the embankment and have continued from that time to the present and that by reason thereof defendant is not liable, is not tenable. It has been frequently held that where damages occur as shown by this record by reason of the continuing of a nuisance, a new cause of action is created whenever the loss or damage is occasioned by reason of the continuance of such nuisance. Ramey v. B. & O. S. W. R. R. Co., 235 Ill. 502; O. & M. R. R. Co. v. Thillman, 143 Ill. 133.

Complaint is made of the instruction given on behalf of plaintiff and of those requested by defendant and refused. The instruction given on behalf of plaintiff and which is criticized by defendant is erroneous in not requiring that it was incumbent upon the plaintiff to prove the notice to the defendant and a demand for the removal and abatement of the nuisance under the fifth, sixth and seventh counts of the declaration. This was a material averment in the declaration and the instruction did not require that plaintiff should maintain the averment by proof to be entitled to a recovery.

Complaint is made of the refusal to give instructions numbered 2 and 4 requested by defendants.

These instructions were properly refused for the reason that instruction No. 2 does not permit a recovery even if proof of notice and demand for abatement of a nuisance had been made. No. 4 is bad for the reason that it does not cover all the allegations of the 7th count on which a recovery is based. This count states two causes of action, one on account of the original manner of the construction of the embankment and its continued maintenance, the other on account of damages by reason of ditches and other artificial means constructed by defendant. This instruction only relates to the averments in this count concerning the construction of ditches and other artificial means, yet denies a recovery regardless of what the proof might have been as to the other averments in this count.

For the error indicated in giving the instruction on behalf of plaintiff the judgment must be reversed and the cause remanded.

Reversed and remanded.


text:
    O. B. Hamilton, Appellant, v. People of the State of Illinois, Appellee.
    1. Pleading—when granting leave to demur discretionary. If an answer has been filed it is discretionary with the court whether it will permit such answer to be withdrawn and a demurrer interposed.
    2. Contempt—when failure to return papers to cleric not. Where a copy of an order requiring an attorney to return certain papers to the clerk of the court instanter is served between eight and nine o’clock in the evening and no notice is given that the clerk’s office would be open during that evening to receive such papers, delivery thereof in the morning following at the opening of the clerk’s office is a compliance with the order.
    Appeal from the County Court of Jersey county; the Hon. H. P. Noble, Judge, presiding. Heard in this court at the November term, 1910.
    Reversed.
    Opinion filed October 14, 1911.
    George W. Herdmann, and Paul M. Hamilton, for appellant.
    W. J. Chapman, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is a proceeding against O. B. Hamilton, attorney at law, of Jersey county, for alleged contempt of the County Court of that county. The court found him guilty on hearing and imposed a fine.

A petition had been filed in the Jersey County Court seeking the appointment of a conservator for one Lucinda Cope; that trial resulted in a judgment directing the appointment of a conservator, from which judgment Lucinda Cope prayed an appeal to the Circuit Court and filed a bond as required by order of the County Court. A transcript of the proceedings in that matter was then made by the clerk of the County Court for the purpose of filing same in the Circuit Court as required by law. After making this transcript it, together with the original files in the matter of the conservatorship, were delivered to appellant as attorney for Lucinda Cope. Appellant took them to his own law office. This was on the afternoon of the sixteenth of September, which was the last day in which the transcript could be filed in the Circuit Court and perfect this appeal, in order to give the Circuit Court jurisdiction at the following term to which the appeal was prosecuted.

Instead of filing the transcript in the Circuit Court on that day, appellant left these papers in his office and they were locked in the office safe by his law partner upon the closing of their office that evening. At six o’clock p. m. on the sixteenth, the clerk of the County Court called appellant over the telephone and made demand upon him that he return the transcript together with the original files in the conservatorship, to his office at once; they were not so returned by appellant. After this demand was made and the failure to return them as demanded, the clerk filed a petition in the County Court setting forth these facts and requesting an order of the court against appellant requiring him to return the papers to the office of the clerk of that court. Appellant had no notice of the filing of this petition, but the County Court proceeded to hear the petition and ordered a citation issued directing appellant to return the papers to the office of the county clerk inst'anter. The first notice that appellant had of the entering of this order or the issuing of the citation was when a copy of the same was served upon him between eight and nine o’clock on the evening of the sixteenth of September. He did not return the papers on the sixteenth, but did return them to the office of the clerk upon the opening of the clerk’s office on the morning of the seventeenth of September. It was then too late to file the transcript in the office of the Circuit clerk and give the Circuit Court jurisdiction of the cause at the following term of that court.

At ten o’clock on the morning of the seventeenth of September, after the papers had been returned to the

office of the county clerk, an attachment was issued by the County Court of Jersey county commanding the arrest of appellant, upon which he was brought into court by the sheriff and a rule entered against him requiring him to show cause why he should not be adjudged to be in contempt of court for failure to obey the order of the court in the citation issued against him which required him to return the pleas and transcript instanter. Under direction of the County Court, interrogatories were filed by the state’s attorney, which were answered by appellant. These answers set forth that the papers were taken to the office of appellant and were locked in the safe in appellant’s office, that appellant did not know the combination to the safe, that it was only known to appellant’s law partner, that demand was made upon him by the clerk for the return of these papers after six o’clock p. m. on September sixteenth, that the citation was served upon bim between eight and nine o’clock p. m. of that day, that-he returned the papers under said order to the clerk of the County Court on the morning of the seventeenth, and alleged full compliance with the order and asked for his discharge. The matter was continued until September twenty-first and on that day the court heard and determined the sufficiency of appellant’s answer, found the answer insufficient, that it did not purge him of the contempt, found him guilty and sentenced bim to-pay a fine of $25 and stand committed to the county jail until fine and costs were paid.

After appellant had filed his answer to the interrogatories filed at the direction of the court, he asked leave to withdraw his answer and for leave to demur to the orginal petition.

The court denied this leave and this is assigned as error. Appellant having filed his answers to the interrogatories and presented his defense to the County Court it was then discretionary with that court whether it would, permit him to withdraw the answers and demur to the petition, and, being discretionary with that court, the denial of the leave cannot be assigned as error.

Numerous other questions are raised upon this record, but in the conclusions of this court it is only necessary to determine whether appellant failed to obey the order of the court directing him to return these papers instanter. Unless there was failure to obey this order within its legal requirements then appellant is not guilty of contempt. In order to determine this question it is necessary to determine at what time the order of the County Court required appellant to return these papers and what is the effect of the word “instanter,” when used in practice by courts of this state. In its general signification and meaning the word instanter means at once, or immediately, and is so defined by lexicographers, but in the practice of the courts of law the word instanter is almost universally construed to mean during the day or session of the court at which the order is made. Where an order is entered by the court to file a plea or other pleading in a cause instanter it means before the usual time of the adjournment of that court at that session. Where an order made by the court does not refer to or relate to the pleadings in a cause of action in that court but relates to the performance of some act with the clerk of said court, and requires that act to be done instanter, the proper meaning and signification of the word instanter then is before the closing of the office of the clerk on the day in which the order is entered. Some courts have even gone so far as to hold that the word instanter in practice means within twenty-four hours. Rex v. Johnson, 6 East, 583; Chaplin v. Chaplin, 2 Edw. Chancery (N. Y.) 328-9; Smith v. Little, 53 Ill. App. (3rd. Dist.) 157; Northrop v. McGee, 20 Ill. App. 108-10.

In Words and Phrases under “Instanter,” Vol. 4, page 3659, where an order to be performed instanter is made after the usual hour of adjournment of court or after the usual hour of closing of the clerk’s office, performance of the order by the convening time of the court or the usual opening of the clerk’s office on the following day is a compliance under the order.

It is neither customary nor usual for the office of the county clerk to be open at all times for the transaction of business, the usual and customary method being to keep the office open during the generál business hours of the day. It is unnecessary for the determination of this cause to take into consideration why or for what reason the papers were requested to be returned by the clerk of that court, and the fact that the clerk made demand upon appellant has no bearing upon the question of the contempt of court. The copy of the order and citation having been served upon appellant by the sheriff between eight and nine o’clock of the evening of the sixteenth of September, there can be no presumption that either the office of the clerk was then open or that appellant could obtain access to said office after "that time. The copy of the order did not give appellant any information that the clerk’s office would be open or that the clerk would be there to receive said papers at that unusual time. The citation ordered appellant to return the papers to the office of the county clerk instanter. It was served upon him between eight and nine o’clock on the evening of the sixteenth; the return of the papers to that office by him upon the opening of the clerk’s office on the morning of the seventeenth was full and complete' compliance with the order. Appellant, therefore, was not guilty of disobeying the order of the court, and there being no other evidence and no contradiction of the answers set forth in appellant’s answer, his answer fully purges him of the charge of contempt.

The judgment of the County Court is reversed.

Reversed.


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    Leo Logan, Appellee, v. John A. Wagner, Appellant.

      Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Brown county; the Hon. Guy R. Williams, Judge, presiding. Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed October 14, 1911.
    J. F. Regan and R. E. Vandeventer, for appellant.
    O. T. Briggs and Hubbard, Schmeideskamp & Groves, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

The defendant, John A. Wagner, was the manager of a company owning a German coach stallion, in Brown county. During the season of 1910 he was standing this stallion in a livery barn at Mt. Sterling, Illinois. On April 14th, Leo Logan took a mare to this barn to have her bred to this stallion. It was in the evening and when he arrived defendant had left the barn for the day but returned for the purpose of breeding this mare; in performing this service defendant permitted the stallion to enter the mare at the wrong opening and as a result thereof she died.

This suit is brought to recover the value of the mare, alleging negligence on the part of defendant in performing his duty in assisting the stallion to serve the mare. There was no question as to the value of the mare and plaintiff recovered a judgment against the defendant for $200 from which he appeals.

The record discloses that it was the duty , of the defendant to assist the stallion in serving the mare by seeing that the horse properly mounted the mare and by guiding the private part of the stallion so that it would enter the mare at the proper opening. There is a conflicl; of the evidence as to the manner in which the stallion was permitted to serve the mare. This conflict relates both to the action of the stallion from the time he was brought from the stall to perform the service and to the action of the defendant in handling the stallion and guiding the private part of the stallion at the time of the service; some of the witnesses testify that the stallion raised in the air at a point some thirty feet from the mare and then approached her upon his hind legs lunging upon her and that defendant did not take hold of the private part of the stallion for the purpose of guiding it into the proper opening; other witnesses testified that the stallion did not mount the mare in this manner and that defendant did take hold of and attempt to guide the organ of the stallion at the time of the service. The evidence is conflicting upon the question as to whether the lights in the barn were out of order but all agree that they were not turned on; some witnesses testified that the stable was dark and that for this reason they were unable to see what took place; others that the light was sufficient to enable persons to see if they were in proper position to watch the operation.

The record further discloses that it was the duty of the defendant to use such reasonable care as would prevent injury to the mare. The law required him under this proof, if he undertook to perform the service at a time when it required more diligence or greater care in handling and assisting the stallion to use such care and caution as were reasonably required under the conditions in which he undertook to perform the service. It was a question of fact for the jury to determine whether or not the defendant used proper care and caution in the performance of his duty and by their verdict the jury found that defendant did not use such care and diligence and we are satisfied that upon this record the jury was fully warranted in so finding by their verdict.

It is urged by defendant that the plaintiff was guilty of contributory negligence in bringing the mare to be served at that time of day. The question of due care on the part of plaintiff was also a question of fact to be determined by the jury from all the evidence in the case under instructions from the court and we find no evidence in the record which in any manner conflicts with the finding of the jury that the plaintiff was not guilty of contributory negligence.

There is no error in this record prejudicial to the defendant either in the admission or rejection of evidence or in the giving, modifying or refusal of instructions.

There being no reversible error in the record the judgment is affirmed.

Affirmed.


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    Hannah L. Martin et al., Appellees, v. Modern Woodmen of America, Appellant.
    1. Descent—section 11 of Act construed. This does not apply to and control the construction of benefit certificates payable to the widow and children of the deceased member of a fraternal benefit society.

      2. Fraternal benefit societies—particular form of certificate as to beneficiaries construed. A certificate payable to the widow and “children” does not include grand-children.
    Assumpsit. Appeal from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed October 14, 1911.
    Truman Plantz, Northcott & Orr and E. S. Smith, for appellant.
    King & Miller, for appellees.
   Mr. Presiding Justice Philbrick

delivered the. opinion of the court.

This is an action brought by appellees to recover upon a certificate of membership issued by the Modern Woodmen of America upon the life of P. Ñ. Martin. He died while a member in good standing and the liability of the defendant upon the certificate is not denied. The certificate of membership designated the beneficiaries as Hannah L. the wife, and children, and at the time of the issuing of the certificate, his wife was Hannah L. Martin and his children were C. C. Martin, Earl Martin, F. M. Martin and one daughter, whose name is not disclosed and who died prior to the death of the insured. The daughter who died prior to the death of her father left surviving her two children who are not parties to this action. After proofs of loss were properly furnished and accepted, payment was demanded by the plaintiffs in this action upon the theory that the two children of the deceased daughter had no interest in the beneficiary fund; defendant insists that the children of the deceased daughter of the insured were entitled to share in the proceeds and declined payment to the plaintiffs. The children of the deceased daughter are non-residents of the State of Illinois. Plaintiffs bring this action to recover from the defendant, and the only defense is that all of the beneficiaries are not made parties to the action. The trial below resulted in a judgment against defendant in favor of plaintiffs for the full amount of the policy.

The sole and only question raised upon the record is whether or not, under the terms of the policy which provided that the beneficiary fund should be paid to the wife and children, the use of the word “children,” included the two grandchildren. It is conceded by the de-" fendant that it has been unable to find any authority in this state to support the contention' by it that the children of the deceased daughter are entitled to share in the proceeds of the beneficiary fund. They also inform the court that this action is defended solely for the purpose of protecting their rights upon this certificate. In support of the position taken by defendant, it relies upon section 11 of the Statutes relating to descent of property, which is as follows:

“Whenever a devisee or legatee in any last will or testament, being a child or grandchild of the testator, shall die before such testator, and no provision shall be made for such contingency, the issue, if any. there be, of such devisee or legatee, shall take the estate devised or bequeathed as the devisee or legatee would have done had he survived the testator, and if there be no such issue at the time of the death of such testator, the estate disposed of by such devise or legacy shall be considered and treated in all respects as intestate estate.”

While the certificate of the insured containing the name of a beneficiary other than the insured is in the nature of a devise to the extent that the benefits are not to be received or enjoyed until after the death of the insured, we are aware of no decision which holds that under such circumstances the fund is treated the same as though it passed by will; and while it may be conceded that at the time of the issuing of this certificate it was the intention of the insured that all of his children then alive should share in the proceeds of .the beneficiary fund, the use of the language employed is not sufficient to include the children of any child who might die before the insured. In the ordinary use of the word “child,” the grandchildren are not included and the section of the statutes relied upon by defendant has ho application except to property devised or bequeathed by will.

The by-laws of the defendant in evidence in this case and the certificate itself provide that the certificate shall be subject to the constitution, by-laws, and rules of the defendant order. Section 46 of the by-laws is as follows:

“If the death of the beneficiary of any” member heretofore or hereafter adopted shall occur prior to the death of such member, or in the event of the disqualification of the beneficiary under the provisions of section 45 hereof, if such member has failed to have another beneficiary named, as provided, in section 47 hereof, then the amount to be paid under the benefit certificate shall be payable to the surviving beneficiaries, if any there be, or if no beneficiaries survive him, then to the widow; if no widow, to his children, including his legally adopted children, and in case there are deceased children or child, the children or child of such shall take the share of such deceased parent; if no children or child of the deceased children or child,' to the mother,” etc.

Propositions of law were submitted to the court by defendant which the court refused to hold, and we find no error in the holding of the court on such propositions. The court held that by-law 46, supra, was applicable to the conditions arising under this policy and that the plaintiffs herein are the sole beneficiaries under this policy. The by-laws of the defendant order provided that the insured might at any time change the names of the beneficiaries and designate any other beneficiaries he might wish to receive the proceeds of the policy.

The naming of the children as beneficiaries gave them no vested right in the certificate and unless a vested right existed in the daughter who died, at the time of her death, then her children had no rights in the distribution of the fund under this certificate and while the names of the beneficiaries were subject to change by the insured at any time, it could not seriously be contended that the fact that the deceased daughter was alive at the date of the issuing of the certificate and that she was then included in the designation made in the certificate under the head of “children” created any vested interest in her; she had no right or interest in the proceeds of this policy except that she survived the insured.

We find no error in this record and the judgment is affirmed.

Affirmed.


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    Eckhart Carriage Company, Appellant, v. E. B. Eden, Appellee.

      Sales—when recovery of purchase price proper. If an article purchased is retained an action for the recovery of the purchase price lies unless the article is absolutely worthless. If it is not, but the article is not up to contract, then the measure of damages is the difference between the contract price and the value of the article at the time of the purchase.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed October 14, 1911.

      E. J. Miller, for appellant.
    John E. Jennings, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought by appellant on a promissory note given to it by appellee for the contract price of a park surrey. Suit was commenced before a justice of the peace; an appeal to the circuit court resulted in a judgment in favor of appellee against appellant for costs; it prosecutes this appeal.

Appellee was in the livery business at Sullivan, Illinois ; one Berkman was representative and sales agent of appellant at Sullivan; appellee purchased from him a light park surrey for use in the livery business, and gave in consideration therefor his promissory note for $88. The vehicle when purchased was not equipped with rubber tires, but after its purchase appellee put rubber tires on the vehicle and began to use it in his livery business. The evidence discloses that the second time the vehicle was in use one of its wheels was broken to such an extent that a new wheel was necessary. Appellee reported the accident to Mr. Barkraan and the matter was taken up by correspondence with appellant. Appellee insists that the vehicle was warranted to him to be first class, in material and workmanship, in every respect, and that the vehicle was not made of first class material and was not constructed in first class workmanship, that the vehicle was not fit for the use in the livery business for which it was sold to him. After some delay pending negotiations regarding this defective wheel, appellant offered to and did ship to Sullivan a new wheel to take the place of the broken one, and requested appellee to permit it to take the rubber tire from the broken wheel so that it might be placed on the new wheel. Appellee refused to permit the vehicle to be taken from his barn where it then was. and declined then to accept the new wheel as a fulfilment of the warranty, demanding that appellant return to appellee his note and come to his barn and get the vehicle, insisting there was a total failure of the consideration for the note; and this was his defense upon the trial. Appellant insists Barkman’s authority to warrant the vehicle was limited to a printed warranty published in its catalogue, and Barkman testified that he showed this warranty to appellee and informed him he had no authority to otherwise warrant the vehicle, but appellee denies this.

Barkman, as representative of appellant, was a general sales agent for it and unless his power of warranty was restricted and notice thereof given to appellee, then whatever warranty Barkman made, if any, concerning the vehicle, appellant was bound by; and it was a question of fact for the jury to determine whether Barkman had warranted the vehicle and if so, to what extent, upon proper submission of the case to the jury upon the evidence under proper instructions.

Conceding that appellee purchased the vehicle upon the warranty as claimed by him, if there was a failure of the warranty and he desired for that reason to avoid the sale it then became his duty to return the véhicle to appellant upon the discovery of the breach of warranty, but instead of so doing the record discloses that after purchasing the vehicle he put rubber tires on it, and because the rubber tires were on the vehicle appellee refused to permit appellant to repair the damage and insisted on retaining possession of the vehicle at his barn until appellant returned the note for the reason that the rubber tires were his property. If there was a breach of warranty and appellee desired to rescind the sale by reason thereof it became and was his duty to remove the tires placed thereon by him and to return the vehicle to appellant; the law will not permit him to retain the object of the purchase and defeat the recovery of the consideration price, except upon the showing that the vehicle was absolutely worthless, and there is no contention on his part that such was the fact. Having retained the vehicle in his possession and refused to permit appellant to make the necessary repairs, the measure of the damages in an action to recover the purchase price, if there was a breach of warranty as contended by appellee, is the difference between the contract price for the vehicle- and the value of the vehicle in the condition it was at the time of the purchase.

Complaint is made by appellant of the instructions given to the jury, insisting that the jury was not properly instructed upon the measure of damages or upon the law regarding the rights of the parties in this controversy. =We have examined the instructions given both on behalf of plaintiff and defendant, and from such examination we find the instructions in' such hopeless conflict, both upon the question of warranty and upon the measure of damages, that the jury had no' guide by which it could correctly determine the rights of the parties in this action. Those given upon behalf of appellee are so contradictory to those given on behalf of appellant that they could not be reconciled.

By the eleventh instruction given on behalf of defendant the jury was told by the court that there was no warranty shown by the evidence except that contained in the book offered as exhibit “B” on behalf of plaintiff, yet throughout the instructions given on behalf of the defendant the jury were instructed that if a warranty was made by plaintiff other than contained in exhibit “B,” and there was a breach of such warranty, then plaintiff could not recover. Instructions upon this question are so numerous that it is unnecessary to refer to each separate instruction. The jury was also instructed that if there was a breach of warranty plaintiff could not recover, without any reference to' whether appellee retained the vehicle.

The judgment below is reversed and the cause remanded.

Reversed and remanded.


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    Dora E. McEvoy, Appellant, v. Court of Honor, Appellee.
    1. Pleading—when special demurrer required. In order to reach a matter of form in a pleading the demurrer must be special and must minutely and specifically point out the exact matter of form that it is sought to reach.
    2. Insurance—when limitation clause as to cause of action not enforced. Such clause will not be enforced where the policy likewise provides that no action shall be brought until the proofs of loss have been presented to and passed upon by the company: It appearing in this case that proofs of loss were presented to the company and not passed upon within the period of limitation provided for the bringing of suit.
    Assumpsit. Appeal from the Circuit Court of DeWitt county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed October 14, 1911.
    Rehearing denied and opinion modified November 8, 1911.
    J. C. Oakes and Ingham & Ingham, for appellant.
    Lewis FitzHenry and Lemon & Lemon, for appellee; William B. Risse, of counsel.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action in assumpsit brought on a benefit certificate issued by appellee upon the life of Alfred J. McEvoy, husband of appellant. To tiie declaration filed herein, appellee among other pleas, filed a plea setting forth that the benefit certificate and the constitution provided that no action should be brought upon the certificate unless such action was brought within one year from the date of the death of the insured and alleging this to be a valid provision of the policy, that action was not brought within such time and was, therefore, barred by the terms of the contract. To these pleas appellant replied severally. No question is raised except as to the sufficiency of the second amended replication filed by appellee to this plea; this replication confessed this plea and avoided it by alleging in apt language and averments that the constitution of appellee also provided that no action should be maintained upon said certificate until after proofs of death, and claimant’s rights to benefits as required, were filed with the Supreme Eecorder and passed upon by the Board of Supreme Directors of appellee, and averred that within three months after the death of the insured proper and sufficient proofs of loss were furnished as provided by the certificate and the by-laws and that it then became the duty of the Board of Supreme Directors of appellee to pass upon said proofs and to inform plaintiff of the result of said action within one year from the date of the death of the insured. The replications further set forth that appellee had not given appellant any notice of any action taken by the Board of Supreme Directors within one year from the date of the death of the insured, and that by reason thereof appellant should not be barred from maintaining this action. This replication concluded with an appeal to the country instead of with a verification. To this replication appellee filed a general demurrer with an attempt to make the demurrer special by adding the following “and for further cause of demurrer defendant shows that said replication tenders issue.”

It is contended by appellee that thiá language made the demurrer “special” and that it is sufficient to reach the defect in the form of replication in concluding to the country instead of with a verification.

In order to reach a matter of form in a pleading the demurrer must he special and must minutely and specifically point out the exact matter of form that it is sought to reach. Gould—p. 466 (ed. by Hamilton); Bogardus v. Trial, 1 Scam. 63; Barbee v. Sproul, 78 Ill. App. 532.

By the use of the language “It tenders issue” appellee did not specifically point out the fact that the replication averred new matter in avoidance of the plea and for that reason was defective in not concluding with a verification instead of an appeal to the country.

The plea being good in substance notwithstanding the irregularity in form and the demurrer not being sufficient to reach a matter of form the demurrer should have been overruled.

To hold that appellant is barred by reason of the provision of the hy-laws and the certificate and that no suit shall be maintained unless brought within one year after the death of the insured, while appellee’s constitution also requires that no suit can be maintained until after claim has been passed upon by the Board of Supreme Directors, is to permit the Board of Supreme Directors, by delaying action on the proofs and claim under the benefit certificate, to defeat any action against its order.

This replication averred that proofs of loss were furnished within three months after the death of the insured. If appellee desired to take advantage of the clause of its policy and constitution which provided that no action should be brought within one year after the death of the insured it then became and was its duty to act thereon and to notify the beneficiary under the policy of such action within the time in which the suit could be brought by the beneficiary under the terms of the policy. Failure to do this was neglect of duty on the part of appellee, and it cannot he permitted to take advantage of its own wrong. C. B. A. v. Loomis, 142 Ill. 560; S. U. N. A. v. Colehouse, 131 Ill. App. 349.

The demurrer confessed the averments of this replication and the replication set forth complete avoidance of the plea. From the judgment rendered it is evident the court sustained the demurrer both on account of form and substance.

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

Reversed and remanded.


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    Iva Nicholson, Appellee, v. City of Clinton, Appellant.
    1. Evidence-—when accident occurring within corporate limits of city sufficiently established. Held, under the evidence, that this question was sufficiently established by proof that the street upon which the accident happened had for fifteen years or more been in use by the public in the city in question.
    2. Contributory negligence—when person using street not guilty of. Held, under the evidence, that the jury were justified in finding that the plaintiff who was injured through a defective sidewalk although familiar with the street in question was not, under the circumstances, shown, guilty of contributory negligence in using the same.
    Action in case for personal injuries. Appeal from the Circuit Court of De Witt county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed October 14, 1911.
    Rehearing denied and opinion modified November 11, 1911.
    W. F. Gray and Lemon & Lemon, for appellant.
    L. E. Stone and Herrick & Herrick, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

Appellee recovered judgment in DeWitt Circuit Court for $930 on account of injuries occasioned on account of negligence of the city in failing to keep a sidewalk on North Moore street in proper repair and condition. The city prosecutes an appeal from this judgment.

The declaration in numerous counts charges negligence on the part of the city of Clinton in failing to keep and maintain in proper condition and repair a sidewalk located on the west side of North Moore street in the city of Clinton, that by reason of the failure to keep such sidewalk in proper repair and condition, appellee fell at a place about midway between Johnson and Macon streets, broke her leg, suffered other injuries, and suffered great pain.

Appellant insists that the judgment should be reversed because there is no proof that the accident occurred within the corporate limits of the city of Clinton, that there is no proof that the city of Clinton builded or attempted to maintain the sidewalk in question, that there is no proof that the place where the accident occurred was-a street in the city of Clinton, and also for errors in the admission and rejection of evidence and instructions given and refused by the trial court; also on account of improper remarks by counsel for appellee in his argument to the jury.

Upon the question raised as to whether the injury occurred upon a public street within the city of Clinton several witnesses have testifiéd that the accident occurred within the corporate limits of the city of Clinton, that the street had been in use for fifteen or more years by the public in the city of Clinton, and that the city employed the persons who builded the sidewalk. Appellant offered no evidence upon these ¡questions whatever and the evidence on the part of appellee in the record is sufficient to sustain the finding of the jury that the street was a public street within the corporate limits of the city of Clinton, and that the sidewalk was constructed by the city of Clinton.

There is no dispute in the record upon the question of appellee being injured by falling upon this sidewalk and there is no contradiction of the evidence that the sidewalk was in broken and unsafe condition, that the holes complained of existed and that the accident occurred at one of the places where a hole is alleged to have existed for several months, and the jury were warranted in finding that the city was negligent in failing to repair or keep this walk in reasonably safe condition for use, etc.

The only evidence offered on behalf of appellant was upon the question of the extent of appellee’s injuries. There is no controversy but what she sustained a fracture of both bones of the right leg above the ankle, that she suffered severely from these injuries, that she was confined to her bed for six weeks, or more, and that she was compelled to and did use crutches from the time she was able to leave her bed until about the first of August, the injury having occurred on the 29th of March. There is some evidence of other injury and some evidence that the right limb was shortened about half an inch by reason of the injury, and upon this condition of the proof the jury were warranted in returning a verdict for $930.

It is insisted by appellant that plaintiff was not in the exercise of due care at the time of the injury, that she had lived in this neighborhood for nearly a year, that she had occasion frequently to pass over the walk and knew its condition, and that on the morning in question she had passed over the walk within half an hour before the accident. A slight snow had fallen the night before the injury, but had melted from the walk and the ground was wet and muddy. The walk was originally built two feet wide of fencing boards laid lengthwise. The walk was wet at the time of the injury and while appellee was aware of the condition of the walk, it was a question for the jury to determine whether or not she was in the exercise of due care at the time of the injury, considering all the circumstances surrounding the accident, and we are satisfied that the jury were warranted in finding that appellee was in the exercise of due care and caution. While the record discloses that she slipped upon the walk it also shows that her foot caught in this hole, and the jury were fully warranted in finding that the hole was the proximate cause of the injury.

Appellant insists that the court erred in admitting the evidence that appellee had a family consisting of her husband and three small children. Appellee’s counsel asked appellee who composed her family; the question was answered but was immediately withdrawn by counsel and the answer excluded by the court as not being proper. This is the only reference to the family so far as the evidence of appellee is concerned. Appellant in the examination of its witnesses as to the cause of the injury and the circumstances surrounding it at that time, produced several witnesses who testified that appellee informed them soon after the accident that she was hurrying home to her children, and appellant brought the fact out by numerous witnesses that appellee had children at home, and this fact was referred to by counsel for appellant in the argument to the jury; consequently, appellant is not in position to complain that the record discloses that appellee had children. The husband was produced as a witness in the case but not upon the question of whom the family consisted, and appellant is not in a position to complain that appellee testified that she had a husband and three children.

While the remarks of counsel complained of are subject to criticism the question of what remarks shall he permitted is ordinarily left to the sound discretion of the trial judge. The defendant does not seem to have been injured in any way by the remarks complained of and we presume the trial court considered them justifiable as no ruling’ was made thereon.

We have examined the instructions given to the jury, as well as those requested by appellant and refused, and find that the jury were fairly and sufficiently instructed, that there is no prejudicial error therein, and that the refused instructions on behalf of defendant were properly refused.

There being no reversible error in this record, the judgment is affirmed.

Affirmed.


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    Mary Mahoney, Defendant in Error, v. Joseph Goldblatt et al., Plaintiffs in Error.
    1. Dram-shops—when exemplary damages proper. Actual damages being proven, exemplary damages may be awarded in an action under the Dram-Shop Act for loss of means of support if the evidence justifies it.
    2. Dram-shops—what' evidence competent in action for loss of means of support. As a part of the res gestae it is competent in such an action to permit evidence that the defendant permitted prostitutes to visit and drink in his place of business and that the son of the plaintiff associated with them.
    3. Dram-shops—what not essential to recovery in action for loss of means of support. The son of the plaintiff to whom liquor was sold being a minor, notice of such fact need not be established; the law prohibits sale of liquor to a minor and one who sells to a person under age does so at his peril.
    4. Trial—when arguments of counsel not improper. Even though arguments of counsel may be likely to excite the prejudice and passion of the jury they are not improper if they are predicated upon the evidence.

      Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed October 14, 1911.
    Albert Salzenstein, C. F. Mortimer and Stevens & Bradford, for plaintiffs in error.
    Smith & Friedmeyer, for defendant in error.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action against defendants, Joseph Goldblatt, the keeper of a dram-shop, and Fanny Kennedy, alias Fanny Peebles, the owner of the building in which defendant Goldblatt conducted his dram-shop. Trial below resulted in a judgment against both defendants for $2500, to reverse which this appeal is prosecuted.

Plaintiff was the mother of one John F. Mahoney and this action is brought to recover damages for alleged injury to her support-by reason of the alleged wrongful sales of intoxicating liquors to John F. Mahoney, her son, while he was a minor. The defendants insist on a reversal of this judgment and assign as causes therefor insuEciency of the proof, error in the admission and rejection of evidence; the giving and refusing of instructions, and in alleged improper remarks of counsel for plaintiff.

The record discloses that plaintiff is a widow, that her husband died about eighteen or twenty years ago, that she is the mother of two children, a daughter and a son, John F., to whom it is alleged the wrongful sales were made by reason of which she was injured in her support. At the time of the father’s death, John F. Mahoney was about two years of age; he became twenty-one years of age September 15, 1909; that the son attended the city and parochial schools of the city of Springfield until he was about twelve years of age, working during the school vacations, and at the age of about fourteen commenced work with the' Citizens’ Coal Company, first employed as a trapper then as a mule driver; he continued in this employment until the time when he began to visit the saloon of defendant Goldblatt, the visits to this saloon being at first infrequent. It was not long after these visits commenced until the son began to lose time in his work at the mines, which loss of time was increased in accordance with the more frequent visits to the Goldblatt saloon. When the son commenced his visits to this saloon he was earning $2.56 per day as a mule driver at the mine of the Citizens ’ Coal Company; he had been earning this sum of money for some time previous and he was then a minor and his mother received all or nearly all of his earnings which was used for the support of herself and daughter. It was in the fall of 1907 when the son commenced to stay away from home nights and began to remain away from his work at the mine; his earnings at the mine from that time on continued to diminish, during which time he was more or less intoxicated and as a result of this intoxication he became so shiftless and worthless that the Citizens’ Coal Company refused him further employment; since then he has performed no work and is an habitual drunkard, contributing nothing to the support of his mother. During these times he became very abusive and cruel in the treatment of his mother and remained away from home for weeks at' a time, during which time he was in and about Goldblatt’s dram-shop associating at that place with women of lewd character who were permitted to come there by Goldblatt.

Defendant, Fanny Kennedy, was frequently seen about the saloon and knew that a dram-shop was being conducted therein by Goldblatt and permitted the same to be done.

It is insisted by defendants herein that there is no evidence to support the allegations of the declaration that the son obtained or received liquor from the defendant Goldblatt or at his dram-shop and that the evidence tending to show such facts is not sufficient to support the judgment. It is also insisted that there is no sufficient proof in the record that plaintiff was injured in her means of support by the sale or gift of intoxicating liquors by Goldblatt or his servants, and that there is no sufficient proof that any such sales were made. It is also strenuously insisted by defendants that the amount of the judgment in this case is excessive and that the verdict is the result of vindictive or punitive damages against defendants, and there being no proof of actual damages, vindictive or punitive damages are improper. It is also contended by defendants that the court should not have permitted the plaintiff to show that Goldblatt permitted prostitutes and women of lewd character to visit and drink in his saloon and that the son was permitted to associate with them at this place, that the only object of this evidence was to show that Goldblatt was violating the laws of the State of Illinois in regard thereto and to prejudice the jury against him.

Upon the question of the sufficiency of the evidence in this record, there can be no question from the evidence but what John F. Mahoney was in the habit of and did visit the saloon of defendant Goldblatt and did obtain intoxicating liquors at that place and that as a result of the sale of these intoxicating liquors to him the plaintiff has been injured in her means of support and that she sustained actual damages by reason thereof.

Upon the contention that where actual damages are not proven vindictive damages are improper, this proposition of law is not disputed, but there being sufficient proof in this record to show actual damages to plaintiff, vindictive damages are proper and are fully justified by the record in this case.

It was not error for the court to admit in evidence that Groldblatt permitted prostitutes and lewd women to visit and drink in his place of business and that John F. Mahoney associated with them. This evidence was part of the res gestae of the alleged visits to the saloon and their effect upon the son; it was proper for the court to permit plaintiff to show the surroundings and conditions which existed in this saloon and which had a tendency to or were instrumental in any way in attracting John F. Mahoney thereto and the conditions which he was brought in contact with when his presence at the saloon was secured; it was proper for the purpose of showing the degradation to which he was brought by .acts of defendant Groldblatt and to show his utterly ¡worthless character after that time. These matters all were proper for the purpose of showing that his services as a means of support to the plaintiff were utterly lost to her and they were also proper to be considered upon the question of vindictive damages. The judgment in this case is not excessive.

It is also insisted by defendant that consideration should be given to the fact that no notice was ever given to Groldblatt that Mahoney was a minor and that he was never notified not to sell to him. For the purpose of a recovery under the Dram-Shop Act such notice is not necessary; the law prohibits selling to a minor, and a saloon keeper who sells to a person under age does so at his peril.

It is also insisted in mitigation of damages that Ma-honey did not continuously work at the mine after he began to drink, but went away and was gone for a time and his whereabouts at that time unknown to his mother, and while absent he was out west looking for work. The fact that while he was in this condition he wandered away from home will be no defense or even a mitigation of damages in this case.

Upon the question of the improper remarks by counsel, we cannot concede that they were calculated to unduly excite prejudice or passion of the jury; they were based upon the evidence in this case and referred to conditions which were shown to exist, and we cannot say that the remarks complained of were wholly unwarranted in this action. "While comments upon conditions may have an influence upon the jury in their verdict, counsel have the right to comment upon the facts shown to exist by the evidence, where their language is based upon the condition of the record and facts shown to exist.

While counsel for defendant have assigned as error the giving and refusing of instructions by the court, they do not argue these questions or present any reasons why or in what manner the instructions are erroneous, and where counsel do not argue the errors assigned, under the rules established by this court, they are considered to be waived.

There being no prejudicial error in this record, the judgment is affirmed.

Affirmed.


text:
    L. A. Clingan, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Common carriers'—what laws govern contract of shipment. A contract of shipment is to be governed by the laws of the state where it was executed.

      2. Pleading—when replication should he verified. If a plea sets up the execution of a contract and a replication denies the execution of such contract the same should be verified.
    3. Pleading—-when replication insufficient. A replication which seeks to avoid a special plea without first confessing it is bad and a demurrer thereto should be sustained.
    Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed October 14, 1911.
    George B. Gillespie, for appellant; L. J. Hackney, Gillespie & Fitzgerald and Rearick & Meeks, of connsel.
    Cundiff & Martin and Clark & Hutton, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought by plaintiff against defendant, in Vermilion county, for the loss of a racing mare shipped by one Lou Greene from Indianapolis, Indiana, to Danville, Illinois. The mare was owned by plaintiff. The trial below resulted in a verdict and judgment against defendant for $980.50, from which it prosecutes this appeal.

Plaintiff charges in his declaration a delivery of the horse to defendant as a common carrier at Indianapolis, Indiana, for shipment to Danville, Illinois, that during the transportation of the animal, by reason of alleged negligence on the part of defendant in violent jolting, jarring, and moving of the train in which the mare was being shipped, the mare received injuries from which she died about six days after having been taken from the car at Danville, Illinois. The mare was shipped in the name of Lou Greene as shipper; the plaintiff in this action was unknown to defendant in this transaction; the bill of lading was signed by Martin Keller, by his,mark, as shipper’s agent. To the declaration charging negligence of the defendant, defendant filed a plea of general issue, with two special pleas; to these special pleas á demurrer was sustained. Defendant amended the two special pleas and as amended they set forth the rules and regulations of the Interstate Commerce Act, requiring the filing of a schedule of rate of shipment, together with a classification thereof, in the office of the agent of the defendant company at Indianapolis, from which point shipment was made; also alleges the execution of a contract by the shipper and sets forth the contract signed by Martin Keller as shipper’s agent, by his mark, Martin Keller being unable to write his name. The first special plea then set forth that, under the terms of the contract for the shipment of this mare, a special and reduced rate had been given to the shipper and that the contract was signed by the shipper’s agent. The plea also alleged and the contract provided that any claim for damages should be made in writing, verified by affidavits, and filed in the office of the defendant company at Cincinnati, Ohio, within five days after the removal of the mare from the car, and alleged that this was not done by plaintiff. The plea further alleges that under and by virtue of the laws of the State of Indiana a common carrier has a right to limit its liability as was alleged to have been done by this contract, and that under the laws of Indiana where a contract is signed by a shipper or by the agent of the shipper, that the presumption of law in that state is that the agent has full and complete authority to sign the contract for the shipment and that with such authority the shipper is bound by the contract as executed by his agent; also that under the laws of the state of'Indiana the provision of the» contract that claim for damages should be made within five days after the animal was removed from the car was a valid provision of the contract and enforceable under the laws of that state. The second special plea alleges that the contract liability upon the part of defendant was limited to $100. The plea further sets forth the conditions of the Interstate Commerce Act, that the defendant was a common carrier, that the rate granted to the shipper, Lou Greene, was a rate granted in consideration of the limitation of the liability of defendant under the contract, that the contract was entered into in the state of Indiana under the laws of that state, that it was a valid contract, setting forth and pleading the laws of that state in relation thereto. Plaintiff joined issue on the plea of general issue and to the two special pleas filed several replications, to all of which replications defendant demurred; the demurrer was overruled, and defendant elected to abide by its demurrer. The pleas set forth the execution of the contract in the state of Indiana and pleaded the law of that state. If the contract was so executed it must be governed by the laws of Indiana. The replications filed did not attempt to answer these pleas. The first replication filed undertakes to avoid the contract by alleging that it was not executed by plaintiff and was not caused to be executed by him. As to this replication, the cause of demurrer assigned is that the plea sets forth a contract made and executed by the shipper of this animal and under which transportation of the mare was undertaken by defendant. The contract is set out in full in the plea which further alleges that under section 53, chapter 110, Hurd’s Revised Statutes, in order to deny the execution of this contract or to deny that it was authorized by him, it was necessary that the replication be verified. This cause of demurrer was well taken; the demurrer should have been sustained by reason of the failure to verify this replication, as required by said section 53, chapter 110, Hurd’s Revised Statutes. The second special replication to the pleas undertakes to avoid the plea without confessing the same, by alleging that the contract was against the public policy of the state of Illinois, and that by reason of the distance of the city of Cincinnati from the city of Danville it was impossible to file a claim for damages as required by the contract; this replication does not answer the special plea, does not attempt to, and was bad for this reason, and the demurrer should have been sustained. The next replication filed to these pleas merely sets forth that Martin Keller, the man who signed as the agent of Lou Greene, was illiterate and could not read and did not know the contents. This does not attempt in any manner to answer either of these pleas or to confess or avoid them. This replication was also bad and the demurrer should have been sustained. It is unnecessary in the condition of this record for this court to pass upon any other question raised.

For the error of the court in overruling the demurrer to the replications, the judgment below is reversed and the cause remanded.

Reversed and remanded.


text:
    Louis Traeger, Appellee, v. W. L. Wasson, Appellant.
    1. Negligence—when owner of automobile guilty of. If one driving an automobile over a road in bad condition seeks to pass another who is upon horseback, it is his duty to so manage and control his automobile under the conditions of the road prevailing that he will not inflict injury, and failing to do so he is guilty of negligence for which a recovery may be had.
    2. Contributory negligence—when person injured by being struelc by automobile not guilty of. One who is upon a public road at a place where he has a right to be and who affords an automobile sufficient room to pass, is not guilty of contributory negligence in refusing to leave the beaten path.

      Appeal from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 14, 1911.
    Baldwin & Stringer, for appellant.
    Beach & Trapp, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

On the 29th of September, 1910, plaintiff was riding upon the public highway on horseback, going towards the city of Lincoln, Illinois; defendant on that day was travelling upon the same highway driving an automobile following plaintiff. When near the city of Lincoln, defendant overtook the plaintiff and desired to pass him on the public highway. When about one hundred yards distant, defendant gave a signal for the purpose of notifying plaintiff of his approach. The public highway, at the point in question, consisted of but one beaten track, in which both plaintiff on horseback and defendant in the automobile were travelling; this beaten track was the only smooth portion of the highway, the balance was rough and not in good condition for vehicles to travel over. Prior to the sounding of defendant’s signal, plaintiff was riding upon the right side of the beaten track; soon after the giving of defendant’s signal plaintiff crossed to the left side of the beaten track and continued along the public highway. Defendant proceeded with his automobile without turning from the beaten track and ran his automobile upon and against plaintiff’s horse. It is for the alleged injuries to the horse and the alleged negligence of the defendant in so driving his automobile against plaintiff’s horse that this action is brought to recover damages to the horse. The trial resulted in a judgment against defendant for $75.

Defendant insists on a reversal of this judgment, contending that it was contributory negligence on the part of the plaintiff to refuse to leave the beaten track at the sound of defendant’s signal so as to permit defendant to pass, that the court erred in the admission and rejection of evidence and in the giving and refusing of instructions.

The legislature at the time of this incident had not passed any act relating to the use of the public highways where one vehicle going in the same direction with another desired to pass the vehicle in front. Under the common law and under the statute all parties using the public highway for legitimate and lawful purposes have equal rights therein. Had plaintiff and defendant been going in opposite directions and it became necessary for them to pass in the public highway, the law created no greater obligation upon the part of the plaintiff to leave the travelled roadway for the purpose of permitting defendant to pass than it did upon the part of the defendant to leave the travelled roadway for the purpose of permitting* plaintiff to pass. While it may be known as a matter of general knowledge that out of courtesy a man travelling upon horseback usually leaves the beaten track for the use of a vehicle for the reason that it may be easier for the horse without a vehicle attached to travel upon that portion of the highway which is not included in the beaten track, the statute does not require that a person travelling upon horseback so do. Under the rule that persons’ rights upon the public highway are equal, plaintiff had the right to continue to use at least one-half of the beaten track and the record discloses that he did no more than this, that he surrendered the right side of the beaten track for the use of the defendant, and that was all that he was required to do. The fact that the parties were going in the same direction instead of in opposite directions imposed no greater obligation upon the plaintiff to- . leave the beaten track, and the plaintiff was not guilty of contributory negligence by travelling on the left side of the beaten track as the record discloses that he did. If the defendant "desired to pass the plaintiff upon this public highway, going in the same direction, he cannot insist that any greater "burden should be cast upon the plaintiff to permit him to pass than the defendant shall be required to assume for himself. It is insisted, however, by defendant that he did attempt to turn his automobile from the beaten track but that on account of the rough condition of the public highway at that point he was unable to do so, and the car swerved back into the public highway. Conceding that such condition is sho,wu by the record, it then became the duty of the- defendant to so manage and control his automobile that he would not run into and against the horse of the plaintiff. We are satisfied that the jury were fully warranted in finding the defendant guilty of the negligence charged in the plaintiff’s declaration.

There is some dispute and conflict in the evidence as to the amount of damage, but this was a question for the jury to determine from all the evidence in the case, and we cannot say that the verdict of the jury is so clearly against the manifest weight of the evidence as to require its reversal.

We find no reversible error in the instructions given by the court and no error in the refusal of the court to give those marked refused; the jury was fully instructed as to the rights of the parties herein. The verdict is fully warranted by the evidence. •

There being no reversible error in this record, the judgment is affirmed.

Affirmed.