text:
    Ruth J. McDavitt, Appellee, v. South Side Elevated Railroad Company, Appellant.
    Gen. No. 14,103.

      Trial—what arguments of counsel improper. In an action for personal injuries remarks of counsel in argument referring to medical experts as follows, are inflammatory and improper: “Do you think there is enough evidence bought up at $50 a day, the same as this has been, to divert you attention from the facts of this case and to defeat this claim?" and, referring to a particular doctor, “He gave me the impression of a Judas, who would not come here until he got the $50.” A verdict induced by such language will not be given the same consideration as is accorded to one obtained by appropriate arguments.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed December 21, 1908.
    Statement hy the Court. This is an appeal from a judgment of the Superior Court of Cook county for $5,000 against the South Side Elevated Railroad Company, the appellant, in favor of Ruth J. McDavitt, the plaintiff below and appellee here.
    The judgment was in an action on the case for personal injuries received, as it is alleged, by the plaintiff, Ruth McDavitt, while a passenger in the cars of the defendant, appellant. The gist of the complaint made by the plaintiff against the defendant is that the guard in charge of a coach in a train of the defendant, in which the plaintiff was a passenger, called out the name of the station at which plaintiff wished to stop, just as the train came to a full stop; that thereupon she, the plaintiff, arose from one of the cross-seats of the coach, and made her way to the door; that while she was between the cross-seats and the door and opposite the longitudinal seats with which the ends of the car are fitted, and before she had an opportunity to alight, “the defendant then and there carelessly and negligently, without giving said plaintiff any warning of its intention to start said train or coach forward, and while plaintiff was in the act and position aforesaid, and unmindful of defendant’s intention, started forward the said train and coach in and upon which plaintiff was then riding as a passenger as aforesaid, whereupon and by reason thereof, plaintiff lost her equilibrium and then and there staggered and fell backward with great force and violence to and upon the arm of one of the seats in said coach” (a division between single seats on the longitudinal benches), “by reason of all which said premises, plaintiff received a severe, dangerous and permanent injury to the vertebras of the spine in the region of the coccyx, her nervous system was greatly shocked and permanently impaired and" plaintiff was otherwise severely, dangerously and permanently injured both internally and externally”.
    The case was duly submitted to a jury and a verdict in favor of the plaintiff for $5,000 was rendered. A motion for a new trial based on the claim that the court erred in rulings on evidence and in rulings on instructions, that the arguments to the jury of counsel for the plaintiff were appeals to passion and prejudice, and that the verdict was against the weight of the evidence and was excessive, was overruled. . A motion in arrest of judgment was also overruled, and judgment and this appeal followed.
    In this court the assignments of error cover the points made in the motion for a new trial.
    Francis W. Walker and William H. Haight, for appellant; Noble B. Judah, of counsel.
    Feed H. Atwood, Frank B. Pease, Charles O. Loucks and Harry A. Biossat, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

The position of appellant in this ease is principally based on the claim that the verdict is against the weight of the evidence.

It is said, first, that the fall from which the plaintiff suffered the injuries complained of, obviously could not have taken place as she says. We do not recognize this impossibility from the evidence, nor deem that the inferences which counsel for defendant draw from the testimony of the plaintiff, who alone described the accident, are necessarily correct. Her testimony is not altogether precise, but from a careful reading of it, we think the statement of the accident which she meant by her words to make, was possible and not unnatural or remarkable in its nature. Nor does an equally careful perusal of the testimony of Seely, Gfillow and Hopkins convince us that the movement of the train which she described and which she specifies as the negligence which renders the defendant liable, was an impossible one.

The testimony of Dr. Knudson does impeach the plaintiff’s testimony by tending to show a different statement by her to him of the facts of the accident a fortnight after it occurred—a statement which in its effect would relieve the railroad company from liability. But it was for the jury to say whether this impeachment should be successful. Whether, after it, they should give or refuse credence to the plaintiff’s testimony, it seems to us for them to decide.

But in another sense and on another phase of the case, we do think the verdict against the weight of the evidence. It is in our opinion, excessive, when the evidence is weighed. We forbear, therefore, inasmuch as the case may come before another jury for another trial, to discuss more particularly or in detail the evidence on the accident itself.

But the evidence on the character of the injury received by the plaintiff and its ultimate results, demands analysis in its bearing on the question of damages. The plaintiff claims that by the accident she so injured herself that immediately she began to suffer great physical agony; that after she reached home on the day in question, she immediately was obliged to go to bed and there staid in great pain for a fortnight; that she then applied to Dr. Knudson (whom she had been told was the surgeon for the defendant company), who examined her and made a report to the company, but who did not so far as she remembers, advise any treatment beyond commending and perhaps emphasizing the necessity of the hot applications which Dr. Melendy, a woman physician with whom the plaintiff was living, had already been using. Immediately thereafter, she claims, she had acute peritonitis, as the result of the accident, which again confined her to her bed for a considerable time, gave her great pain and ended in some internal abscess, which six months or so afterward broke and passed its contents off through the bowels. But this even, was not the extent of the ill health resulting from the injury, as she claims.

She claimed that at the time of the accident, October 15, 1903, she was in good health and able to conduct difficult and arduous duties in her calling of a trained nurse; that since that time she had not only suffered pain continuously up to the time of the trial in June, 1907, in the region of the sacrum and coccyx, where her injury was received, but also a highly nervous condition, culminating in and constituting neurasthenia, was the result of the injury. From this neuresthenia it has resulted that she has been unable to do any work of consequence or follow her avocation, although she was able before the accident to earn $25 per week and expenses.

It must be conceded that if the weight of the evidence in this record is not clearly against this claim that she makes that these are the results of the accident, the damages are not excessive or out of proportion to them. But we cannot agree with the contention that it is not.

Even if the status of her health before and after the accident be assumed to have been exactly as she described it, the expert medical testimony cannot be ignored as to whether the condition of her health from October, 1903, to June, 1907, was the result of her injuries.

To the change in the condition of her health from that time she herself- testifies, and there was introduced in addition the testimony of the female physician, a Dr. Melendy, with whom she resided at the time of the accident, and several lay-witnesses who had known her before and after the accident and noticed increased nervousness and restlessness and more or less emaciation after the accident, although they had considered her well and strong before.

But assuming, as we have indicated, this evidence sufficient to justify the belief, implied, as we think, in the verdict of the jury, that prior to the injury and also prior to the attack of peritonitis in the fall and early winter of 1903, to which she swears, she was in good health, there still remains the question to be considered on the evidence—was the peritonitis itself and was the neuresthenia and the condition of the plaintiff’s health between the winter of 1903 and the time of the trial, the result of the injury she received?

The evidence of the change and the dates of it is competent and relevant in the consideration of the question, but it is not conclusive. It must be considered with reference to the testimony of scientific and reputable medical men who were called as witnesses for plaintiff and defendant. We do not agree' with the implications of the argument of counsel for the plaintiff—preserved in the record—that the “theories” of reputable physicians are “a lot of stuff”, such as dreams are made of. Scientific facts are facts like other facts, and “theories”, in the sense in which counsel used the word, may be—although of course they are not always—the proven and demonstrable truths of science. And it is not inappropriate here to say that our disinclination to let this judgment stand on the record of the jury trial which has taken place, is very much emphasized and heightened by the language concerning the medical testimony for the plaintiff which is complained of by the defendant. It is unnecessary for us to hold that on that alone we should have reversed this judgment, to give to it a certain weight in the disposition of the case.

When the essential question is on the weight of the medical evidence as to the possibility of certain physical results from certain physical causes, appeal to the prejudice and passion of the jury against reputable physicians who are obtaining the fees commonly given to medical experts, by such expressions concerning them in general as, “Do you think there is enough evidence bought up at $50 a day, the same as this has been, to divert your attention from the facts of this case and to defeat this claim?” and concerning one doctor in particular, against whom no just cause of suspicion or animadversion appears, “He gave me the impression of a Judas, who would not come here until he got the $50”, may well lessen the hesitation we must feel in disturbing the verdict of a jury because our view seems to differ from theirs as to the weight of the evidence. In determining, that is, the question whether the verdict was clearly against the weight of the evidence, we are justified in giving less consideration to the opinion of a jury appealed to in this way than to one where such inflammatory language has not been used.

In considering and analyzing the medical testimony, we may treat as negligible, for reasons that are obvious and unnecessary to detail, that of Dr. Melendy. Plaintiff’s counsel, who offered it, disclaims offering it as that of an expert. They say: ‘ She was merely a sort of a nurse that had studied medicine and with whom the plaintiff was living. The plaintiff had another doctor, Dr. Maxon, who was in Mexico at the time of the trial.”

Seven medical witnesses besides Dr. Melendy were examined. Of these Drs. Babcock and Harsha, both called for the plaintiff, had known her and seen her before the accident in October, 1903, and had also examined her after that time and before the trial. Dr. Knudson, called for the defendant, had seen and examined her two weeks after the accident and twice thereafter. Dr. Stowell, called for the defendant, had examined her about a year before the trial and two years or more after the accident, and testified to her then condition. In addition to their specific knowledge in this case, however, they were all examined as experts and their opinion evidence on medical questions asked and secured.

Dr. Hall, Dr. Price and Dr. Learning were also called by the defendant and testified, but purely as experts, they having made no examinations of the plaintiff and testifying to medical and physiological propositions and in answer to hypothetical questions.

All these seven witnesses were, so far as this record discloses, reputable, well educated and well informed men in their profession, the record or character of none of them deserving the animadversions cast on some of them in the course of the trial and argument.

To give point to the salient features of their testimony it is necessary, first, to state the history of the plaintiff’s physical condition and surroundings before and after the accident as detailed by herself. She was graduated as a nurse from St. Luke’s Hospital in 1889, being then 21 years old. In March, 1895, she was married, and in the summer of 1896 had a child born, which however died shortly after its birth. Her husband, however, separated from her in September, 1896. The delivery of her child was a difficult labor. It was delivered by instruments while she was under the influence of anaesthetics, and there was internal laceration of the cervix of the womb. After her confinement she remained in bed a month. She was examined by Dr. Harsha three or four months afterward, and his testimony on her condition will be hereinafter noted. He made also a subsequent examination three or four months later. During the year 1898 she went also to two other physicians for relief. During that time, she says, she had pain in the abdomen, described by her as at first intense and sharp pain and afterward a heavy, painful feeling.

Previous to this she had no illness, she says, except diphtheria in the winter of 1890 and 1891, and an attack of gout in 1890 and 1893.

Asked about her health the time of her confinement in 1896, she answered that she did not do any irksome work from 1896 to 1898, but that in February, 1898, she went to work nursing, and that though she rested during that summer and again after the fall of 1898, until sometime in 1899, from that time on in 1899 to the time of the accident, she worked very hard at her calling. Her counsel asked her: “From 1899 or 1900 down to the time you were injured, what was your general condition of health; were you strong or weakly?” Her answer was: “I wasn’t weakly; I worked very hard, and I couldn’t do it if I was weak”. “Q. Were you strong?” “A. I was strong enough to do hard work.”

She said that immediately before the accident she was able to work very hard and was working very hard, nursing a malignant cancer case.

At the immediate time of the accident she suffered, she testified, great agony at the end of the spine, and this pain, in a severe form, lasted until the time of the trial."

On alighting from the car after the accident, she walked, assisted by a fellow passenger, down the stairs of the elevated station and then, unaided, to Marshall Field’s store, a block and a half away, and from there took a surface car to the residence of friends two miles away, and then home to Dr. Melendy’s where she roomed. There she was put to bed. In a fortnight she went to see Dr. Knudson, and shortly afterward, as noted, the exact date being left perhaps somewhat doubtful, although Dr. Melendy, who treated her during this time, says she thinks it was about six or seven weeks after the accident, which agrees with what Dr. Khudson testifies Dr. Melendy told him on the third examination he made of the plaintiff in Dr. Melendy’s presence on January 21, 1904, she developed peritonitis.

The plaintiff says the acute peritonitis lasted two or three weeks, during which she was confined to her bed. Before she had peritonitis she says she was able to get around, but only with much suffering. After that until some time in February, 1904, she was “up and down and would get up and get very sick on account of getting up”.

In February she went to Alabama to take a case, but was unable to work. The internal abscess in her side broke and the contents passed out through her bowels, she says, in the spring or summer of 1904; but although she,returned from Alabama and essayed again in Chicago to follow her avocation, she had been unable to work with success and had been an invalid and practically unable to work.

At the time of the trial, the pain was not great when she rested or was lying down, but severe when she exerted herself. She refused on the trial to have physical examinations made by physicians named' by the defendant, or by the court, on the ground that it would be useless and painful.

In treating her after the accident Dr. Melendy found some swelling and discoloration over the sacrum and coccyx, appearing a few hours after the accident, but they disappeared after two days.

Dr. Harsha testified that he first examined the plaintiff three or four months after her child was born in 1896; that her condition was then fair; that there was some but not aggravated laceration of the womb; that he examined her again three of four months later and found much less laceration; that after that he saw her perhaps three times a year, and that while her general condition of health was fairly good, she was nervous, but less, probably, than she was immediately after her delivery. Two years and a half after the accident, that is, in June, 1906, he examined her again, and says that except that the signs of nervousness were greater, amounting to neuresthenia, and that there was a falling off of weight, he found her physically as healthy as usual. He could not feel anything different from the time he examined her before. Neuresthenia, he testified, might be caused by many things, and among them he mentioned hemorrhoids or bleeding piles, from which he said the plaintiff suffered—to our mind a by no means insignificant or unimportant statement in this case, although not commented on in argument. Asked as an expert, whether if one sits down suddenly and strikes the coccyx- or the sacrum, there was any probability of peritonitis if there was no infection, he answered that the probability was not strong, but there was a possibility, the possibility being of inflammation being started and reaching the peritoneum, which, however, he said, had no direct connection with the coccyx or sacrum. An intervening part must therefore be involved and infected to carry inflammation to the peritoneum. It might be possible, he said, that the laceration he found would produce neuresthenia, but he would not expect it to do so, and would not think it could produce it if for two or three years between the laceration and the neuresthenia the person enjoyed good health.

Dr. Babcock, also called for the plaintiff, had made two examinations of the plaintiff—one two months and one one month before the trial. He found, he said, a condition of neuresthenia, and he also found, on the second examination, a swollen or enlarged condition of the parts of the anterior surface of the coccyx. It felt, he says, like a part of fibrous tissue. He believed, he said, that this condition was traumatic, that some force or violence caused it.

Dr. Babcock had known the plaintiff eight or ten years before, socially, and said she was then heavier, and only to a small extent anæmic. He said that the childbirth in 1906 described to him was abnormal, and it was possible that the condition found in her by him might have come from it, but that if, during the interval of eight or nine years, a woman had enjoyed good health for three or four years, that would cut down the possibility considerably, and would open up the case for another cause very largely.

Dr. Knudson, called for the defendant, who examined the plaintiff at her request, because she knew him to be the surgeon for the defendant, on October 29, 1903, two weeks after the accident, and on November 14, 1903 (at which time she said nothing of any peritonitis having intervened), and on January 21, 1904, when she did say that she had had inflammation of the left ovary and general peritonitis, and who applied to examine her again in February, 1904, and was refused, swore that he found at the first and the subsequent examinations, no fracture or dislocation of the coccyx or sacrum, no swelling and no external sign of wound or injury; that he found uterus inversion, but not of recent origin; that he thought her then amende and neuresthenia and easily upset.

He named as an expert several causes which might produce neuresthenia, such as disease of the genital organs, over-work, nervous strain, worrying and piles; but did not testify that he found the plaintiff suffering from piles, as did Dr. Harsha. He also said that severe traumatic injury might produce neuresthenia, but not such an injury as plaintiff claimed she had received, unless it had produced a fracture. He also said that without a fracture, a severe fall on the sacrum or coccyx could not produce peritonitis unless there was something intermediate already existing, such as a pelvic abscess.

Dr. Stowell was subpoenaed by the defendant. He declared himself an unwilling witness, but was told by the court that he could not claim privilege because he had been consulted by the plaintiff voluntarily. He examined the plaintiff in the earlier part of 1906. He made a complete examination of the pelvic region. He found an old laceration of the neck of the womb, indicating it was from childbirth, and some indication of an inflammatory condition in the pelvis, and evidence that led to suspicion that there was some pus and adhesions there. He found nothing the matter with the coccyx or sacrum and nothing out of the way on the outside of the back. He said that in his opinion the adhesions or place that he diagnosed as a pus sac had nothing to do with any external violence; that he considered the plaintiff as a person of a neurotic type, and that in a person of a neurotic type the conditions in the genital organs that he had described would produce or emphasize neuresthenia. On cross-examination he reiterated his opinion, that the accident described by the plaintiff could not cause, although it might aggravate, neuresthenia, and that the laceration of the cervix which he found, although healed, was not left in a normal condition and might have aggravated neuresthenia, although he would not say that it would produce it.

Dr. Hall, Dr. Learning and Dr. Price, to speak generally of their testimony, swore as expert medical men, that the injury described by the plaintiff, not being severe enought to produce a fracture or dislocation, could have had no relation to either the peritonitis or neuresthenia from which she claimed to have suffered. Dr. Hall swore that her described conduct immediately after the accident was entirely inconsistent with any serious injury to the coccyx.

To Dr. Price these questions were put and by him these answers returned:

“Q. Suppose a woman thirty-four years of age to be neurasthenic and nervous in tendency, and after-wards she was married and two or three years after-wards she had a child delivered with forceps and her womb was lacerated and the child died, what effect, if any, in your opinion, would that have upon a person of neurasthenic temperament!

A. I would have this opinion, that from those circumstances that she had had a child and had the neurasthenia and putting them all together I would say absolutely it was a very decided trend of causes, not only one, but several causes.

Q. Suppose she had a number of examinations after it, and a year ago this month the laceration was still found to be there, but in the meantime before that last examination that disclosed the laceration to be still there, she had had an injury in a railroad car when she was about thirty-four years old, to the coccyx and sacrum, and no fracture to either the sacrum or the coccyx, and shortly after that a case of peritonitis occurred which left a pus abscess over the right ovary, and she was neurasthenic all the time all along, and a year ago still had that laceration of the womb observable at the point of abscess and a rigidity there, what effect would you say, if you have an opinion on the subject, was there between the neuresthenic or nervous condition and, the blow upon the coccyx with neither fracture nor dislocation!

A. There would be no relation.”

We have given what seem to us salient points of the medical evidence. We have no intention of commenting on them further than to say that a consideration of them, with a very careful examination of all the testimony, connected with the refusal of an examination by the plaintiff at the trial, which was a matter for the jury and therefore for us to consider, and the severe and, as we think, unjustifiable attacks in argument on the medical experts who testified for the defendant, makes it impossible for us conscientiously to allow this verdict to stand on this record. As herein-before indicated, we think it is in amount against the weight of the evidence.

Complaint is made of the instructions. We- do not think they contain reversible error. With instruction 7 we find no fault. Instruction 8, for greater caution, perhaps, might better have repeated in its last clause the limitation concerning the practical operation of the road which is found in the first clause, but it must be considered as a whole, and we do not find it erroneous.

Instruction 16 contains no incorrect statement of the law, but we think it is rather unhappily worded and confusing.

Instructions 8 and 9 we do not consider contain reversible error, but they would have been better had they more particularly defined and limited what the court meant by “consequences”.

We do not find any error in the rulings on evidence. The case, in our opinion, was carefully tried by the trial court in this regard.

But for the reasons we have specified, the judgment is reversed and the cause remanded to the Superior Court for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Holdom

license: Public Domain

text:
    Ann Marren, Appellee, v. North American Union, Appellant.
    Gen. No. 14,083.
    1. Practice—when not error to strike special plea. A special plea filed after the regular pleadings have been interposed is properly stricken when it has been so filed without leave of court.
    2. Practice—when not error to strike special plea. It is not error to strike from the files a special plea which is double and obnoxious to demurrer.
    3. Pleading—what defenses not admissible under general issue. In an action upon a fraternal benefit certificate the defense that a member was addicted to the excessive use of intoxicating liquor is not admissible under the general issue.

      4. Evidence—what does not tend to prove drunkenness. The sole fact of residence in the Washingtonian home is inadmissible as evidence to prove drunkenness.
    5. Fraternal benefit societies—construction of insurance contract. If ambiguity exists in an insurance contract the construction given to such contract will be most favorable to the insured.
    6. Fraternal benefit societies—-what does not affect misrepresentation by applicant. The fact that one in becoming a member of a fraternal benefit society falsely represented that he was not addicted to the excessive use of intoxicating liquors, will preclude recovery by the beneficiaries if his death resulted from the use of such liquors, notwithstanding under the rules of the order such member could not have been expelled therefrom without proof of “habitual” excessive use of such liquors.
    7. Verdict—when set aside as against the evidence. A verdict manifestly against the weight of the evidence will be set aside on appeal.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. William H. McSurely, Judge, presiding. Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed December 21, 1908.
    R. E. Hamilton, for appellant.
    Thomas Taylor, Jr., and James W. Taylor, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an appeal from a judgment of the Superior Court rendered upon the verdict of a jury, for one thousand dollars. The argument of appellant is principally directed to the proposition that the verdict and judgment are manifestly contrary to the weight of the evidence and contrary to law. This involves the rulings of the trial court in striking the additional pleas from the files and in overruling appellant’s motion for a new trial.

John Marren was a member of appellant, a fraternal mutual benefit insurance* company, which on February 7, 1900, issued to John Marren a contract of insurance in the sum of $1,000, in which his mother, the appellee, is named as the beneficiary. The declaration consists of two counts, in the first of which it is alleged that the contract of insurance was issued to John Marren by the Union, by which it agreed, in consideration that he while a member of the Union would comply with its charter, constitution, laws, rules and regulations, it would, at his death, pay the sum of one thousand dollars to his mother, the appellee; averred that John Marren was dead, and that during the time he was a member he did comply with the charter, constitution, laws, rules and regulations of the Union.

In the second count the contract of insurance is set forth in haec verba, including the application for membership, containing the medical examiner’s report and John Marren’s answers to questions put by the medical examiner and an undertaking to comply with the laws, rules and regulations of the Union.

Among the several clauses of the contract of insurance is the so-called “incontestable” clause, and as we shall hereafter comment upon its bearing upon the rights of the parties, we here quote its substance: “This contract shall be incontestable after two years from the date hereof, except for the non-payment of dues, assessments, fines or premiums, engaging in prohibited occupations or becoming habitually addicted to the excessive use of intoxicating liquors * * * contrary to the laws, rules and regulations of the association and the agreement of the member”.

Appellant filed first a plea of the general issue December 30, 1905, and afterwards, on January 4, 1906, filed a special plea, setting forth a violation by the member, John Marren, of certain of the laws, rules and regulations of the Union, specifically mentioning them, and also charging that said John Marren was, for a long time during his membership, addicted to the excessive use of intoxicants, and that for several days prior to March 14, 1905, when he died, he was under their influence, and that his death was the re-suit of drunkenness. This special plea further avers that John Marren made false statements to the medical examiner, rendering the contract of insurance null and void.

The trial court struck the special plea from the 'files on the motion of appellee, because it was filed (after appearance and the filing of the plea of the ¡general issue, without first obtaining, leave of court Jo place it upon the files. An. examination of the record fails to disclose an order granting leave to file this special plea; nor is there anything in the record contradicting the statement of counsel when making the motion to strike, that the plea was filed without leave of court. The court did not, therefore, err in eliminating the special plea on the motion of appellee. Appellant, if it still desired to avail of the defenses claimed in. the special plea, should have asked for leave to refile it. This was not done. Again, the special plea is double and obnoxious to a demurrer. It is not a good plea. The defense sought to be interposed was breach of the conditions of the contract of insurance by John Marren, resulting in its forfeiture. It was claimed that John Marren, before and since the issuing of the contract of membership, was addicted to the excessive use of intoxicating liquors. Such defenses are not admissible under a plea of the general issue. To be availed of they must be pleaded specially. The authorities so holding are numerous, and this rule is well settled by a uniformity of decision on the subject. Ills. Fire Ins. Co. v. Stanton, 57 Ill. 354; Am. Ins. Co. v. Egyptian Lodge, 128 Ill. App. 164; Modern Woodmen v. Davis, 184 Ill. 236; Concordia Fire Ins. Co. v. Bowen, 121 Ill. App. 35; Continental Ins. Co. v. Rogers, 119 Ill. 474; Metropolitan Life Ins. Co. v. Zeigler, 69 Ill. App. 448.

As to the matters claimed to constitute defenses to appellant’s liability under its contract of insurance, we think the so-called incontestable clause has no application. Such defenses consist of matters specially excepted from the operation of that clause. These matters, however, in order to be available as a defense, should have been specially pleaded, however many of the matters so involved were admitted in evidence by the trial court under the general issue. The correctness of this ruling is not involved in this appeal, as appellee has not assigned cross-errors.

In no event were the admissions, at many times, of John Marren to the Washingtonian Home in Chicago, competent evidence, unexplained as to his condition as to sobriety or drunkenness at the several times of' his admission and the purpose of his becoming an inmate and the course of his treatment while there. The fact of a person being at some time in the Washingtonian Home does not ipso facto raise a presumption that such person is addicted to the excessive use of intoxicants. Even under appropriate special pleading, the sole fact of residence in the Washingtonian Home would be inadmissible as evidence to prove, drunkenness. Such fact does not dispense with proof necessary to establish as a fact the defense that John Marren violated the condition of his insurance by being addicted to the excessive use of intoxicating liquor.

Were the incontestable clause susceptible of two constructions, or were there any reasonable doubt as to its intended effect, it would be our duty, under welh. settled legal doctrine, to adopt that construction which favored the upholding of the claim made under the insurance contract of which this clause is a part. But we do not regard this clause as at all ambiguous or susceptible of a dual meaning. Under appropriate special pleas the defenses endeavored to be interposed to the right of appellee to recover are admissible.

It is obvious, from the terms of the contract of insurance, the requirements of the rules of the Union and the statements in the medical examiner’s report, "that the Union would not insure against the excessive indulgence of the member in intoxicating liquor.

We think that the finding of the jury is so palpably contrary to the manifest weight of the evidence in the record, that the judgment of the Superior Court must be reversed and a new trial ordered.

It is impossible to escape the conclusion, from the greater weight of the evidence, that John Marren met his death as the result of an excessive indulgence in intoxicating liquors. That he was what is commonly known as a drinking man who went on “sprees”, is but the reasonable deduction from the evidence of his immediate friends, who testified at the instance of appellee. The verdict of the coroner’s jury and the statement of Dr. Lewke, the coroner’s physician, who held the autopsy upon the dead body of John Marren —admitted with the consent of appellee, although a motion was later made to strike it out—conclusively establish as a fact that John Marren came to his death from alcoholism. Dr. Lewke stated that “on opening the body I found the lungs congested, the heart fatty, the liver fatty and congested, the kidneys degenerated and inflamed, and the stomach inflamed”. Other medical men testified that the condition of the organs of John Marren as set forth by Dr. Lewke was the result of alcoholism. This evidence was fortified by the report of a committee of three members, appointed by the Union under its rules to inquire into the death of John Marren, and they reported that he died from alcoholism. This report was part of appellee’s proof. Appellee attempted to prove by other medical testimony that the condition of the organs of John Marren might be attributable to other causes, such as “Bright’s disease”, but in view of all the facts we regard such opinions as unsatisfactory. On the other hand, a tacit admission by appellee of inebriety arises from the condition that such a defense is barred and the Union estopped from now seeking to escape the payment of the claim by reason of John Marren’s use to excess of intoxicants, because Byan, the collector of the Union, who collected dues and assessments from John Marren, knew of his excessive indulgence in intoxicating liquors and of his resulting drunkenness, and appellee complains of the ruling of the trial judge in not permitting Ryan to testify concerning his knowledge of John Marren’s drinking habits. It is therefore apparent from this evidence that John Marren came to his death as a result of the violation of that clause of his contract of insurance against the excessive use of intoxicants, which vitiated it and worked a forfeiture of all rights of the beneficiary thereunder. The medical examiner’s report, signed by John Marren, contains the following: “I am not now addicted to the excessive use of intoxicating liquors. * * * Should I become so addicted * * * my so doing shall forfeit and absolutely terminate thereafter all right, interest, payment, benefits or privileges of myself * * * or beneficiaries without proceedings for expulsion or otherwise on the part of said association.”

It is urged that Section 3 of Law 19 of the Union must control in this case, and that no rights can be held to be forfeited because the insured could not be tried or expelled from the Union for the excessive use of intoxicating liquors, but only for the “habitual” excessive use of such liquors. Whatever the rights of John Marren would have been in a trial under this rule, we do not think affect this case. The rule applied to a trial and expulsion. The representation of John Marren was, that at the time he made application for membership he was not addicted to the excessive use of intoxicating liquors, and he agreed that should he become so addicted all rights, benefits and payments should become forfeited both to himself and beneficiary “without proceedings for expulsion or otherwise”. Expulsion, under the law of the Union last quoted, was not a condition precedent to a forfeiture under the terms of the insurance contract. Such proceeding was expressly and in terms waived by the member in his application for membership, which forms an'integral part of his insurance contract.

It was sought to rebut the evidence of the defense concerning the drinking habits of John Marren, by calling his mother and brother as witnesses in rebuttal. Their testimony is highly unsatisfactory and in no way weakens the force of appellant’s proof on this subject. The testimony of these witnesses was undoubtedly honest and true, but it did not touch the subject inquired about. They were gently led to the point of inquiry, but astutely avoided the subject in their responses. Mrs. Marren, the mother of John, the beneficiary named in the contract of insurance and the appellee, was asked, “What were his habits, if you know?” and answered, “His habits was good to me”. The court then asked this question of appellee, “What were his general habits?” to which she answered, “Well, I don’t know; he was nice going to his work and coming home”. She also testified in rebuttal that “He always supported me; he was my support all my life. I never was hungry or cold, never”. The testimony of the brother was of an equally negative character, remarkable principally for what he did not see, with the exception that he admitted that his brother John went on “sprees”.

The pathos of the widowed mother’s story and her lauding of the filial virtues of her dead son John, told in all probability in a touching manner, together with the—it may be assumed—somewhat forlorn appearance of the old woman who had in the death of her son John lost her sole support, was enough not only to stir the sympathetic feelings of the jury, but to so overcome their better judgment as to cause them to lose sight of the evidential facts material to be considered in weighing impartially the evidence and reaching a just verdict therefrom. The verdict impresses us as being the offspring of sympathy—an emotional verdict, which the evidence does not justify or sustain.

The judgment of the Superior Court is reversed and the cause remanded for a new trial in conformity with the views expressed in this opinion.

Reversed and remanded.


text:
    Alma Glaefke, Appellee, v. Western Electric Company, Appellant.
    Gen. No. 14,091.
    1. Jurisdiction—when court without, to order reinstatement of cause. The court loses jurisdiction of a cause with the lapse of the term at which the final order of dismissal is entered and therefore it may not reinstate the same unless by order it has reserved its jurisdiction.
    2. Coram nobis—what not error of fact. To dismiss a cause upon the general call of a calendar, if it be an error, is an error of law and not of fact; such error cannot be corrected after the lapse of the term at which the order of dismissal is entered.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed December 21, 1908.
    Holt, Wheeler & Sidley, for appellant.
    No appearance by appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an undefended appeal.

Appellee sued appellant in an action on the case for personal injury, laying her ad damnum at $20,000. On December 10, 1903, her declaration was filed, to which appellant on December 22, 1903, filed a plea of the general issue. On May 2, 1906, an order was entered dismissing appellee’s suit for want of prosecution and a judgment for costs entered against her.

On motion of appellee the Circuit Court on April 4, 1907, vacated the order of dismissal and judgment for costs and reinstated the cause upon the docket. Appellant entered its motion for a new trial, which was overruled. It then moved in arrest of judgment, which also being overruled, it prayed, procured, perfected, and now prosecutes, this appeal. It is assigned for error and argued that the order of reinstatement was erroneous as being without jurisdiction; that the trial court erred in refusing to find the issues for appellant and in refusing to hold as the law the following proposition tendered by appellant:

“The court holds as a proposition of law that under the facts and the evidence in this case the plaintiff has not made such a showing as entitles her to have her case reinstated, and the court finds for the defendant”.

The motion filed by appellee was that the.case be reinstated upon the calendar and that the court amend the record of the judgment so that it should appear that the case was dismissed on the general call of the docket instead of having been dismissed on the regular call for actual trial, and for such further amendments on the record “as shall be or seem fit” to be niade in pursuance of said motions or either of them. An affidavit of J. A. Adams was read in support of the foregoing motions, which inter alia contains this contention: “How this deponent insists that the said recital introducing said order and-judgment is wholly erroneous and unfounded in point of fact; that acquitting the said clerk and all concerned from any imputation of a sinister nature, deponent nevertheless claims and insists that said judgment entry, in so far as the recital above set forth is concerned, is a false entry and ought to be amended to correspond with the actual fact, which is that this suit was dismissed and judgment rendered pursuant to said general call and not upon any actual call of the case for trial”.

The record also contains an order of the Circuit Court authorizing a general call of cases on the law docket. In this order appears the following provision: “It is further ordered that the cases so called for trial * * * may for good cause shown to the court, on notice to the opposite party or his attorney, be reinstated within ninety days from date of said order”, etc. The order of dismissal was entered on May 2, 1906, and the order of reinstatement entered April 4,1907, so that it is clear that appellee’s motion was not made within the time limited by the provision last quoted, and it is just as clear that the court had no jurisdiction to enter any order in the case eleven months after the final order of dismissal was entered. The court lost jurisdiction of the cause with the lapse of the term at which the final order was entered. Barnes v. Henshaw, 226 Ill. 605; Gray v. Ames, 220 ibid. 251.

The power of the court to interfere with the judgment at all rests in its right to proceed on motion to correct any error committed by the court not appearing in the judgment itself or involving any proceeding of either fact or law occurring upon the trial aliunde the record and which, when made known to the court, would have the effect to void or nullify its judgment. Such a motion serves the office and function of the common law writ of coram nobis, and is in the nature of a review by the trial court of the error alleged against its judgment. Such review must be limited to errors of fact, for as such power is conferred by section 66, chapter 110, R. S., the inquiry of the court must proceed in accordance with its provisions, and being in derogation of the common law, its provisions cannot be enlarged. Section 66 supra provides that “All errors in fact committed in the proceeding of any court of record, and which by the common law could have been corrected by said writ—coram nobis —may be corrected by the court in which the error was committed upon motion in writing made at any time within five years after the rendition of final judgment in the case, upon reasonable notice”.

If the court proceeded, in its order reinstating the cause, on the ground that it should not have dismissed the same, as it did, under the order for a general call of the law docket, such error was of law and not of fact, and therefore not reviewable by the trial judge. Domitski v. Am. Linseed Co., 221 Ill. 161.

The record, however, discloses that the order complained about was neither amended nor changed in any particular. What the court did was to set aside the order of dismissal and reinstate the cause and restore it to the docket. This it had no power to do after the passing of the term at which the order of dismissal was entered and the cause finally disposed of. That order, being made without jurisdiction, is a nullity. As said in Green v. Union Elevated R. R. Co., 118 Ill. App. 1: “Any errors in procedure were subject to review on appeal or writ of error from the final order of the Superior Court. They are not subject to review upon a motion to reinstate made after the expiration of the term when the trial court has lost jurisdiction. * * * The order of dismissal was a final order in the case. It disposed of the suit.”

Appellant has pursued, in every material particular, the method held in Domitski v. Am. Linseed Co. essential to present to the reviewing court the errors assigned on the erroneous action of the trial court on the motion to correct the final order of dismissal and reinstate the case on the docket, and is entitled to prevail in its appeal.

The judgment of the Circuit Court appealed from being erroneous, is reversed.

Reversed.


text:
    Variety Manufacturing Company, Appellee, v. Mills Novelty Company, Appellant.
    Gen. No. 14,095.
    1. Instructions—how motion for peremptory must he made. A motion for a peremptory instruction is properly denied where it was neither made in writing nor accompanied by a written instrument.
    2. Practice—power of court to submit special interrogatories. The trial court may in its discretion submit interrogatories to the jury which call for their findings of specific facts at the request of either party or at the court’s own initiative.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding. Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed December 21, 1908.
    Rehearing denied January 7, 1909.
    Adler, Lederer & Sohoenbrun, for appellant.
    Bolen & Stewart, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

The Municipal Court rendered a judgment for $877 in favor of appellee against appellant on the verdict of a jury, in an effort to reverse which this appeal is prosecuted.

Appellant argues, as reasons for reversal, that the contract sued upon was not its contract, but the obligation of the Mills Edisonia Company; that the Municipal Court erred in its rulings upon the evidence, and that the judgment is contrary to the law and the evidence.

We are met at the threshold of this cause with the embarrassing fact that there is a similarity between the names of the two corporations involved in the liability sought to be enforced; they are both “Mills” . corporations, and other elements of confusion lie in the fact that Herbert S, Mills was president of both corporations and that other persons were officers and interested in each of these corporations, and that both of them had some interest in the building in which the folding doors were to be installed by appellee. It is fairly inferable from the evidence of both contestants, that the “Edisonia” Company had no financial reputation established in the business community, while the “Novelty” Company, appellant, had.

The evidence demonstrates that the contract was made by appellee with appellant. Morehouse, the architect of the building, was instructed by Mills, the president of appellant, to have the contract made in the name of appellant and Law, the purchasing agent of appellant, with the knowledge and authority of its president, made the contract with appellee for appellant. This contention of appellant smacks very much of an attempt to shift the burden of a binding obligation from a solvent concern upon a corporation of doubtful pecuniary responsibility.

The next question is, did appellee perform its contract sufficiently in accordance with its terms to entitle it to recover the amount due under the terms of the contract. The evidence shows that the doors contracted to be installed in appellant’s building were large and not of a usual or ordinary character. They were manufactured under a patent and were supposed to work automatically, and therefore required a nicety of adjustment which would not admit of a departure from the exact measurements of the spaces they were intended to inclose. The exact dimensions of these openings could not be ascertained except by actual measurement, and measurements could not be made until the openings were completed by the contractors having that part of the work in charge. As soon as the openings were completed, the measurements were made and the doors delivered at the building to be put in place within a reasonable time thereafter.

Appellee is not responsible for delays in its.work occasioned solely by the act of a preceding contractor, and is only .required to proceed with reasonable dispatch and to furnish the doors as soon after the openings were finished ready for measurement as it could in the exercise of due diligence.

The evidence sustains appellant in its claim that the delays which occurred did not result from any dereliction on its part, but .establishes, on the contrary, as a fact that appellee proceeded with all reasonable dispatch to install the doors after it was able to procure the necessary measurements.

A careful examination of the evidence fails to disclose any erroneous rulings of the court affecting the merits or the justice of appellant’s defenses.

The motion of appellant to instruct a verdict in its favor was not made in writing, nor was any written instruction tendered. The ruling of the court may not therefore be reviewable on this appeal. W. C. St. Ry. Co. v. Foster, 175 Ill. 396. It may, however, under the Municipal Court Act, be unnecessary to make the motion in writing or tender an instruction, as that Act authorizes that court to instruct the jury orally. Be that as it may, it is clear that at the close of all the evidence, when the motion was made, the evidence presented questions of fact for solution, which solution was the function of the jury and not the duty of the court.

When appellee started to install the doors, the architect of appellant interfered and stopped the workmen of appellee from further proceeding, and took into his hands the task of completing the work. The expense of so doing was allowed by the jury as a credit to appellant, the verdict being for the contract price less such expense. To this we see no cause of exception by appellant. It was in its favor.

The answers of the jurors to the special interrogatories propounded to them settle all the disputed questions of fact in favor of the appellee, and we are not only unable to say from the evidence in the record that such findings are not supported by a preponderance of the evidence, but, on the contrary, are of the opinion that the findings of ultimate fact by the jury are in harmony with the greater weight of the evidence. However, it is assigned for error, although not pressed upon us in argument, that the trial court erred in giving to the jury the special interrogatories propounded to them for answer. It is a well-settled rule of procedure in this jurisdiction that the trial court may, in its discretion, submit interrogatories to the jury which call for their findings of specific facts at the request of either party,' or on the court’s own initiative. Voigt v. Anglo Am. Provision Co., 202 Ill. 462; P. C. C. & St. L. Ry. Co. v. Bovard, 121 Ill. App. 49.

And as said in Town of Cicero v. Bartelme, 114 Ill. App. 9, “We have carefully examined the evidence in the record, and we cannot say that the finding of the jury * * * is against the evidence or is not supported by sufficient evidence”. Neither can we say from this record that the judgment of the Municipal Court does not mete out justice to the parties upon the merits of the case.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Frank Bettis, Appellee, v. Chicago Coated Board Company, Appellant.
    Gen. No. 14,100.
    1. Master and servant—when latter cannot recover. A servant is not entitled to recover for injuries sustained while in the service of his master unless he has established that he did not know of the defects which caused his injury and did not have equal opportunities with his master of knowing thereof at the time he was so injured.
    2. Contributory negligence—when servant guilty of. A servant who undertakes to select his own implements and chooses one that is defective, is not in the exercise of ordinary care and cannot recover for an injury resulting from such defect.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1907.
    Reversed with finding of fact.
    Opinion filed December 21, 1908.
    Rehearing denied January 7, 1909.
    Horton, Brown & Miller, for appellant.
    Harry R. Hurlbut, Samuel B. King and Jule F. Brower, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

The relationship of the parties at the time plaintiff sustained injuries to his person, compensation for which a jury rendered a verdict and the trial court entered a judgment for $2,500, was that of master and servant.

The declaration originally consisted of five counts, but the court, by instruction, eliminated the second, third, fourth and fifth counts from the cause, and the case was submitted to the jury on the first count.

The negligence averred in the first count is, that defendant’s duty was to furnish plaintiff with a safe place in which to work, in smoothing out wrinkles in the paper which was wound about rollers in a machine used by him for that purpose, and that defendant was negligent in that it neglected to perform that duty by furnishing plaintiff a board which was defective, in that it had in it longitudinally a crack or split, of which defect plaintiff had no notice, but of which defendant either had actual notice, or in the exercise of reasonable care, might have had such notice.

The evidence is substantially to the effect that at the time of plaintiff’s suffering the injury complained about, he was trying to smooth out a wrinkle that appeared in the paper upon the roll; that he picked up a piece of board and used it in an endeavor to accomplish such purpose. The manner of so doing was by putting one end of the board down upon the floor and holding it in position, with the foot, and then applying force to the other end of the board, which had the effect of smoothing out the wrinkle. In the machine at which plaintiff was at work, there were two rollers, one above the other, upon which the paper was rolled. These rollers were so worked that when revolving any substance placed between them large enough to engage the surface of both would be drawn in and through them.

At the close of plaintiff’s proofs and again at the close of all the evidence, defendant made a motion in writing and tendered a written instruction with each motion, that the jury be instructed to find a verdict in favor of the defendant. Both these motions were denied and exceptions to the ruling of the court preserved. The court’s rulings in this regard are likewise assigned upon the record for error, and while other assignments of error appear upon the record and are urged upon us in argument, we shall confine our reasons in the conclusions to which we have arrived to the ruling of the court in refusing to instruct a verdict for defendant, as asked at the close of all the proofs.

Plaintiff’s hand and arm, the proof shows, were injured while plaintiff was using the board, with a crack in it, in an endeavor to smooth out a wrinkle in the paper which he was engaged in rolling; that the wrinkle in the paper caught in the crack in the board, which had the effect of throwing the board up and in some way, not clearly explained, caused plaintiff’s hand to be caught between the rollers and drawn between them.

The case of plaintiff rests in the charge that defendant furnished him a board to work with which was defective, knowledge of which defect i's imputable to defendant. There is no charge that there was anything out of repair in the rolling machine, or that it was not of approved construction and safe to work at by persons exercising ordinary care in so doing. Therefore any testimony on the part of plaintiff indicating any defect in the machine was incompetent, and therefore should have been excluded. The testimony of plaintiff unquestionably establishes the fact that boards used to straighten out wrinkles in the paper occurring during the process of rolling, were not furnished by defendant, nor was any other implement furnished for that purpose. It was customary to use such a board in rolling paper when smoothing out wrinkles. In this instance defendant did not furnish the board, which plaintiff insists was defective. Petrie, the foreman of defendant, did not instruct plaintiff to use the board he did use, or direct him to use any particular board. Plaintiff selected his own board, both on the occasion when he was injured, as well as at other times when he smoothed out wrinkles. The board used by plaintiff at the time of his injury, he picked up off the floor from underneath the machine on which he was at work, where it was lying, without making any particular examination of it to ascertain its condition. The testimony of plaintiff makes it very doubtful whether the board was cracked at the time he started to use it, or was cracked by the machine while being used in it to straighten or smooth out the wrinkle in the paper being rolled. However this may be is unimportant, for it is clear that defendant was not responsible for the board used, whether in a defective or good usable condition.

The rule governing this case is stated in E. J. & E. Ry. Co. v. Myers, 226 Ill. 358, where the court say: "Still, the appellee was not entitled to recover in this case unless he established that he did not know of such defects, and did not. have equal opportunities with appellant of knowing thereof at the time he was injured”. This rule was established by the court in many of its preceding decisions, notably, Goldie v. Werner, 151 ibid. 551; Howe v. Medaris, 183 ibid. 288; Lake Erie & Western R. R. v. Wilson, 189 ibid. 89; Armour v. Brazeau, 191 ibid. 117; Montgomery Coal Co. v. Barringer, 218 ibid. 327; and McCormick Harvester Machine Co. v. Zakzewski, 220 ibid. 522.

The board used by the plaintiff was not furnished by defendant, nor was the plaintiff directed as to the manner of its use by its foreman, or any other servant of defendant. Nor was the defect in the board, if any existed, known to defendant. Neither was such knowledge imputable to it. Plaintiff selected his own board, and if he used one that was defective, he was not in the exercise of reasonable care in so doing, but was guilty of negligence which resulted in his injuries. The doctrine of Goldie v. Werner, supra, has been adhered to by this court in International Packing Co. v. Cichowicz, 107 Ill. App. 234; Casey v. Daugherty, 118 ibid. 134; and Dalton v. Ogden Gas Co., 126 ibid. 502.

The motion to direct a verdict in favor of defendant is in the nature of a demurrer to the evidence. As the proof then stood plaintiff had failed to establish the negligence charged against defendant in his declaration, and therefore was not entitled to recover. In so far as such proof may have tended to establish negligence other than that charged in the declaration, it was inadmissible, and therefore not competent to be considered in determining its weight. The trial court erred in not directing the verdict requested by defendant, at the close of all the proofs. The judgment of the Circuit Court is therefore reversed with a finding of fact.

Reversed ivith finding of fact.


text:
    Carrie J. Billingheimer, Appellee, v. William F. Scott et al., Appellants.
    Gen. No. 14,107.

      Interest—what not unreasonable and vexatious delay of payment. It is not an unreasonable and vexatious delay of payment to refuse to satisfy a claim where there is an honest and reasonable dispute with respect to its validity and propriety.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in this court at the October term, 1907.
    Affirmed on remittitur.
    Opinion filed December 21, 1908.
    William P. Shockey, Orlando W. Keatley and Benjamin McWilliams, for appellants.
    Parker & Hagan, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

The plaintiff, and the defendant William F. Scott, at the time of the occurrences resulting in the contentions appearing in this record, sustained the relationship to each other of patient and doctor. Dr. Scott attended the plaintiff when she suffered from a miscarriage. Just prior to this time Dr. Scott’s wife, his co-defendant, had been delivered of a living child. In the case of these two mothers nature seemed to work at cross purposes. The mother of the immature and lifeless child had an abundant supply of nature’s infant nourishment, while through the lacteal ducts of the mother of the living child no needed nourishment flowed. Dr. Scott’s child was puny, in consequence, and so ill nourished that its life was threatened with early extinction. In his perplexity and anxiety for the life of his child, Dr. Scott appealed to the plaintiff to suckle it and to give the child of the abundance of nourishment which she had and of which the child stood in sore need to save its life. Plaintiff took the child and nursed it, so that it became strong and healthy from the maternal sustenance which it extracted from her. Now the plaintiff claims that she cared in this way for the child of defendants under an express agreement that she should be paid $15 per week for such services. On the other hand, Dr. Scott denies that any such agreement was made, but insists that plaintiff agreed to accept as a requitement for her services his professional attendance and care and the relinquishment of a claim for borrowed money which Dr. Scott had against her husband. The cause was tried at nisi prius with a jury, and a judgment of $762.08 entered against defendants on the verdict of the jury. The common counts and a plea of non assumpsit embrace all the pleadings in the case. It is contended that defendants should have been permitted to recoup the amount due for Dr. Scott’s services under the plea of the general issue; that the judgment is contrary to the preponderating force of the evidence; and that the court erred in its rulings upon the evidence and in its instructions to the jury.

Whether defendants could recoup or put in evidence a set-off or counter claim under their plea of non assumpsit against the claim set up by plaintiff, we are not called upon to decide, for the reason, clearly apparent, that there is naught in the record which calls for such ruling. The abstract of the record fails to disclose that any evidence was proffered of any counter claim by defendants, either by way of recoupment or set-off. The cause was defended upon the theory that the agreement to pay plaintiff for her services $15 per week was never made, and all the evidence of defendants tends in that direction. A reading of the evidence fails to disclose any ruling of the learned trial judge upon the evidence which injuriously affected the rights of defendants or curtailed the defense which they sought to interpose. An examination of the instructions fails to disclose any. infirmity of law necessitating a re-trial of the case.

The judgment appealed from was entered on the second trial of the cause. On the first trial plaintiff recovered and that judgment was by the Branch Court reversed and a new trial awarded because of improper remarks of plaintiff’s counsel in his address to the jury. See case General Number 10767, opinion by Mr. Justice Baker, filed March 1, 1904, and not reported. In this opinion it is intimated that the amount of the judgment was excessive, as the jury awarded compensation at the rate of $25 per week in the face of the testimony of plaintiff that she was to receive the lesser sum of $15 per week for her services. We are of the opinion that the judgment appealed from is also excessive in that it includes interest upon the amount of plaintiff’s- claim on the basis of $15 per week. The evidence fails to show that defendants unreasonably or vexatiously withheld the amount due plaintiff. We gather from the proofs that the disagreement between the parties is an honest one, and in view of the evidence in this record and the first verdict rendered in the case, we cannot say that the defendants vexatiously or unreasonably witheld payment. Plaintiff nursed the child of defendants from June 25, 1896, to February 22, 1897, a period of thirty-four weeks lacking one day. Plaintiff is consequently limited in her right to recover to that time. At $15 per week the amount due would be in round numbers $508.

The judgment of the Circuit Court will therefore be affirmed on a remittitur from the amount of the judgment of $254.08 within five days; otherwise the judgment will be reversed and the cause remanded for a new trial.

Affirmed on remittitur.


author: Per Curiam.

text:
    Riley Hilton, Appellee, v. Otis Slater, Appellant.
    Appeals and errors—when pro forma reversal will he entered. A reversal will be pro forma entered where the appellee fails to file a brief in compliance with the rules.
    Action commenced before justice of the peace. Appeal from the County Court of Shelby county; the Hon. Calvin Green, Judge, presiding. Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed November 17, 1908.
    Chafee & Chew, for appellant.
    No appearance by appellee.
   Per Curiam.

Appellee has filed no brief in compliance with the rules of this court'and accordingly the judgment is reversed pro forma and the cause is re- ' manded.

Reversed and remanded.


text:
    Lulu Gibson, Appellee, v. School Directors of District No. 72, Appellants.
    1. Appeals and errors—when sufficiency of evidence not open to review. In the absence of the abstract showing an exception to the finding of the court, the question of the sufficiency of the evidence to sustain such finding is not open to review.

      2. Appeals and errors—when no questions of law presented for review. If a case has been tried by the court without a jury and no propositions of law have been presented, no questions of law are saved for review.
    Action commenced before justice of the peace. Appeal from the Circuit Court of DeWitt county; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    John Fuller, for appellants.
    Ingham & Ingham, for appellee.
   Per Curiam.

This action was -brought by appellee against appellants to recover for services as teacher in a district school. The case was originally brought before a justice of the peace and upon appeal to the circuit court, was tried by the judge without a jury. Judgment was rendered in favor of the plaintiff for $66.80, from which the defendants .appeal!

It does not appear from the abstract of the record filed by appellants that any exceptions were taken to the findings of the court upon the issues in favor of appellee. The sufficiency of the evidence to support such findings cannot therefore be inquired into by this court. The judgment appears to be regular and in accordance with the finding. No propositions having been presented to the court for its action, no questions of law are presented for review. ■

The judgment of the circuit court is therefore affirmed.

Affirmed.


text:
    John H. Savage, Plaintiff in Error, v. Chicago & Alton R. R. Co., Defendant in Error.

      Instructions—when peremptory properly given. In an action for death caused by alleged wrongful act, a peremptory instruction is properly given if after a careful consideration of all the evidence adduced by the plaintiff, together with all reasonable inferences which can be properly drawn therefrom, the same does not fairly tend to establish that the proximate cause of the death of the plaintiff’s intestate was the failure of the defendant to exercise due care as charged in the declaration.
    Action in case for death caused by alleged wrongful act. Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    John E. Pollock and J. Bert Miller, for plaintiff in error.
    Bracken, Young & Peirce, for defendant in error; F. S. Winston, of counsel.
   Per Curiam.

This is an action in case by plaintiff in error as administrator of the estate of Lewis H. Miller, deceased, against defendant in error, for recovery of damages for the death of said Miller who was killed by a switch engine in the yards of defendant, at Joliet, while in its employ. At the close of the plaintiff’s evidence the trial court directed a verdict of not guilty, and rendered judgment thereon in bar of the action. To reverse such judgment this writ of error was sued out by the plaintiff.

The first additional count of the declaration charges that Miller was at the time of his death in charge of the round-house of the defendant at Joliet, and that as such it became his duty in the night time to superintend and direct the placing of an additional engine to a certain passenger train which had just then arrived on the north bound track; that it became necessary in order to permit the additional engine to be run north over a switch to the north bound main track and backed down to the hind end of the passenger train, to detach the engine of the passenger train therefrom and run it north past such switch, where a siding entered the north bound track from the east; that while Miller was engaged in said duty, the servants of the defendant in charge of a certain switch engine backed the same southward on the south bound main track, in the night time, and that because of their negligence in improperly managing said engine, and in failing to have a switchman or other employe on the rear foot board of the same, said engine ran over said Miller and killed him. Other counts charge that no proper lookout was kept by the engineer and others in charge of the switch engine and that the head light on the rear end thereof was not properly lighted.

The evidence shows that the defendant was operating a double track railroad running north and south through Joliet, the west track of which was known as the south bound track and the east track as the north bound track, and that there was a siding east of the north bound track; that Miller had been round-house foreman for the defendant for about four years, and that one Norton was night round-house foreman; that on the day he was injured, Miller and the yard master jointly received an order from Bloomington, directing them to have engine 32 ready to be attached with engine 41 as a double head to train No. 4 from Joliet to Chicago, which would reach Joliet at 7:30 p. m., and to put engine 32 next to train No. 4. Pursuant to such order Miller placed engine 32 on the siding, and at about 7:30 o’clock, together with the yard master and Norton, went to the place where the double header was to be placed on the passenger train, and awaited its arrival. Upon the arrival of said passenger train from the south on the north bound track, the train was stopped just before the engine thereon reached the switch leading to the siding upon which engine 32 stood. . The yardmaster cut regular engine 41 off the east end of the passenger train, and the same was then run down north over the switch, and thereupon engine 32 was run off the siding past said switch on to the north bound main track and backed down to the head of the passenger train. Engine 41 was then backed down to the head end of engine 32. Norton then left Miller standing between the two main tracks. Between the time that engine 41 was cut off the passenger train and engine 32 was backed down to said train, a switch engine backed down the south bound main track and ran over Miller, at a point about opposite engine 32. He was instantly killed. His body was found lying across the east rail of the south bound track, in between the rails, with his legs outside of the east rail. The switch engine was at the time running about two miles an hour.

The record is silent as to what the deceased was doing or what occurred at the time he met with his death. How he happened to be run over is altogether a matter of conjecture, as there were no eye witnesses to the accident. There was evidence tending to show that there was no switchman on the rear foot-board of the switch engine. The negligence relied upon in argument as a basis of recovery seems to be the failure of the engineer of the switch engine to observe that the deceased was upon or- so near the south bound track as to be in danger. It is urged that by the exercise of ordinary care he would have known of the presence of the deceased in time to have -stopped the engine and avoided injury to him.

The burden was upon appellant to establish by the greater weight of the evidence that the engineer was thus negligent, and that this was the proximate cause of the death of his intestate. While the surrounding circumstances may have been sufficient to create a bare suspicion or inference that such was the case, we are of opinion, after careful consideration of all the evidence adduced by the plaintiff, together with all reasonable inferences which can be properly drawn therefrom, that the same does not fairly tend to establish that the proximate cause of the death of Miller was the failure of the engineer to exercise due care as charged in the declaration, and that the jury could not without acting unreasonably, so find. It follows that the trial judge properly directed a verdict for the appellee, and that the judgment based thereon should be affirmed.

Affirmed.


author: Mr. Presiding Justice Puterbaugh

text:
    Elick Rockwell et al., Plaintiffs in Error, v. Martens-Leary Co., Defendant in Error.

      Sales—what not competent to affect bill of sale. In the absence of ambiguity or uncertainty, parol evidence is inadmissible for the purpose of showing that other property not answering the description in the bill of sale was included or intended to be included therein.
    Assumpsit. Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Welty, Steeling & Whitmore, for plaintiffs in error.
    Charles I. Will and Barry & Morrissey, for defendant in error.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit by plaintiffs in error against defendant in error, for the recovery of damages resulting from an alleged breach of warranty of the title to certain chattel property purchased by them from the defendant in error.

The first count of the declaration alleges the execution by the defendant to the plaintiff of a bill of sale conveying “One (1) saw mill complete with all belts and attachments being the same saw mill with belts and attachments that formerly belonged to one John Aspel”; that thereafter one John Aspel replevied from them a vise, post drill, blacksmith forge, block and tackle with rope and pulleys, two chains, a log wagon, etc.; that after the commencement of the replevin suit by Aspel the plaintiff served notice upon the defendant to defend said suit; that the same was finally decided against the plaintiffs, whereby they lost the property in question, and in addition thereto were compelled to pay attorney’s fees and costs.

The second count alleges in addition, that at the time of the execution of said bill of sale, the defendant then and there represented to the plaintiffs that the property therein described comprised and included the property replevied. The defendant by its special plea averred that the question as to what was included in the description employed in the bill of sale was litigated upon the trial of the replevin suit, and determined adversely to the contention of the plaintiffs and that judgment was rendered therein in favor of Aspel, which judgment was still in full force and effect. To such plea the plaintiffs replied that at the time of the execution of the bill of sale the defendant was asked what property was comprised in and included in the description quoted, and that the plaintiffs then and there answered that the property afterwards replevied was included therein, and that by reason of the premises the defendant should be estopped to assert the contrary. A demurrer was sustained to said replication, and the plaintiffs having elected to abide thereby, judgment was rendered against them in bar of action and for costs. They thereupon sued out this writ of error.

Waiving the question whether there was an estoppel by verdict in the replevin suit, we are of opinion that the demurrer to the replication was properly sustained, for the reason that parol evidence was inadmissible for the purpose of showing that other property not answering the description in the bill of sale was included or intended to be included therein. All verbal agreements made before or at the time of the execution of a written contract, concerning the subject-matter thereof, are conclusively merged into the written contract and cannot be added to or changed by parol evidence. Hill v. Hatfield, 72 Ill. App. 534.

Plaintiffs in error deny in argument that they are seeking to vary or enlarge the terms of the bill of sale, and assert that they seek merely to put the same construction upon its general terms as the parties themselves did at the time of the execution of the instrument. The words employed in the present contract are neither ambiguous, doubtful nor uncertain. It is clear that the property replevied could not under any reasonable construction be held to be included therein. The rule that where the terms of a contract are uncertain, and the parties have by their conduct placed a reasonable construction thereon, such construction will be adopted by the courts, is therefore inapplicable. The judgment of the circuit court is affirmed.

Affirmed.


text:
    M. J. Wolford, Trustee of Frank Lindley, Bankrupt, Appellee, v. John Rusk, Appellant.
    Negotiable instruments—when equitable defenses may be interposed. The release of a guarantor may he interposed by him as a defense against one who acquires the note upon which the guaranty appears, after the maturity thereof.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed November 17, 1908.
    Acton & Acton, for appellant.

      Walter C. Lindley, for appellee; L. T. Allen, of counsel.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This action was originally brought against Rusk and Headlee, before a justice of the peace, and then taken by appeal to the circuit court. Pending the litigation Lindley became bankrupt, and Wolford, trustee, was substituted as plaintiff, and the suit was dismissed as to Headlee. Upon a trial before the circuit court without a jury, judgment was rendered against the defendant for $103.50. The note which is the basis of the suit was executed and delivered by Rusk to Headlee and matured September 27, 1904. On April 7, 1904, Rusk hypothecated the note as security for a loan and at the same time endorsed the same as follows: “I guarantee the payment of this note at maturity. John Rusk.”

The loan was afterwards paid by Rusk and the note in question returned to him. After its maturity it was sold to a third party, who, simultaneously with the delivery of the note to him, executed to Rusk a separate written agreement that Busk should not be held liable upon the note in any way. Lindley afterward purchased the note with no actual notice of such written agreement. It is contended by appellant that having purchased the same after maturity, Lindley took the note dishonored and with notice and that Rusk as endorser and guarantor is entitled to interpose the written agreement in question as a defense the same as he could against the party to whom he sold the note; while appellee contends that Lindley took the same free from any latent equities existing between the endorser and endorsee.

It is well settled that latent equities between intermediate parties cannot be set up against a purchaser after maturity (2 Rand. Com. Paper No. 675), and that only those defenses that grow out of the relations of original parties to the instrument can he interposed. Bank v. Texas, 87 U. S. 72. We are of opinion that the guaranty of the note by appellant may be properly regarded as a distinct and independent substantive undertaking to which appellant and the third party accepting the note upon the credit thereof were original parties. 1 Dan. Neg. Inst., 669. It follows that the contemporaneous agreement of such third party releasing appellant from liability was sufficient to defeat recovery upon the note in the hands of Lindley, who acquired the same after maturity.

The rule sought to be invoked by counsel for appellee that where one of two innocent parties must suffer a loss by reason of the fraudulent act of a third party, the loss must fall upon the one who placed in such party’s possession the means by which he was enabled to perpetrate the fraud, is not applicable, there being no claim that actual fraud was either perpetrated or intended by the transaction. Bindley was manifestly not one of two innocent parties within the meaning of the rule stated. Under the law he took the note when it was dishonored, and as has been said, subject to all latent equities between the original parties.

The judgment will he reversed and the cause remanded.

Reversed and remanded.


text:
    Geddes-Brown Shoe Company, Appellant, v. Henry C. Suttle, Assignee, Appellee.
    1. Statute of Limitations—what does not toll running of. A voluntary assignment for the benefit of creditors and the appointment of an assignee does not toll the running of the Statute of Limitations against an open account.
    2. Voluntary assignments—when objections to report of assignee properly stricken. Objections to the report of an assignee interposed by a creditor whose claim is outlawed are properly stricken from the files.
    Objections to assignee’s report. Appeal from the County Court of De Witt County; the Hon. Fred C. Hill, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Monson & Gray, for appellant.
    E. J. Sweeney and L. O. Williams, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an appeal from the order of the County Court refusing to strike from the files the objections of appellant to the report of appellee as assignee of one Glazebrook, who made a voluntary assignment to appellee under the statute, for the benefit of his creditors, on February 8, 1898. On August 29, 1898, appellee filed in the County Court a report of claims filed against his insolvent, among which appeared that of appellant, in the sum of $170.70, but upon which he reported that according to the insolvent’s books there should be allowed a credit of $169.79. On September 5, 1907, appellant filed a petition asking that appellee be cited to report his acts and doings as such assignee. Pursuant thereto, on January 3, 1908, he filed his report showing that he had paid claims slightly in excess of the proceeds of the assets coming into his hands, but that he had paid nothing upon the claim of appellant. Appellant filed objections to said report, alleging that the same was neither full, true nor correct; that credit was taken for claims paid which had never been filed, and that others were paid without authority of law or order of court. The objections, upon motion of appellee, were stricken from the files, for the reason among others, that the claim of appellant was barred by the Statute of Limitations. Such ruling of the court was proper. The Statute of Limitations began to run against appellant’s claim prior

to the assignment by Glazebrook. The last item of the account bears date October 21, 1897, while the assignment was not made until February, 1898. The appointment of an assignee did not affect" the running of the statute. White v. Meadowcroft, 91 Ill. App. 293; High on Receivers, Sec. 135. The account was therefore outlawed on October 21, 1902. The contention of appellant that the statute did not run because the relation of trustee and cestui que trust existed between the parties, is untenable. A trust to be exempt from the Statute of Limitations must be a direct trust. It must he exclusively within the jurisdiction of a court of equity and the question touching it must arise between the trustee and the cestui que trust. Beers v. Myers, 28 Ill. App. 653; Hayward v. Gunn, 82 Ill. 385. A county court is not by the Voluntary Assignment Act vested with general chancery powers and jurisdiction (Preston v. Spaulding, 120 Ill. 209), nor can the claim be said to have been exclusively within the jurisdiction of the County Court. Appellant could have maintained an action at law against Glazebrook at any time prior to the outlawry of the claim.

The judgment of the County Court was warranted and is affirmed.

Affirmed.


text:
    Gottfried Gorenflo et al., Appellees, v. L. P. George and James P. Woodside, Appellants.

      Replevin—when defendant estopped to deny possession. One who pretends to have levied a distress warrant upon a field of corn is thereby estopped, in an action of replevin to recover such corn, from denying having taken possession thereof, and this notwithstanding the levy may not have been made in strict conformity with law,—no rights of third parties being involved.
    Replevin. Appeal from the Circuit Court of Christian county; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Frank P. Drennan, James A. Taylor and Leslie J. Taylor, for appellants.
    J. C. and W. B. McBride, for appellees.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is a suit in replevin by appellees against appellants. The declaration consists of the cepit and detinet counts, to which the defendants pleaded non cepit and non detinet. Judgment was rendered upon the verdict of the jury in favor of appellees.

The evidence discloses that appellees were tenants of appellant Woodside, who caused a distress warrant to be placed in the hands of appellant George, a constable, to execute. George went to a field where Gorenflo was husking corn, and read the warrant to him, whereupon Gorenflo inquired whether that meant for him to quit gathering the corn, to which George replied that it meant he must quit. George then endorsed upon the warrant a return reciting that he had in behalf of Woodside distrained upon the corn in the field and that in a neighboring crib. No custodian of the property was appointed, nor were any notices of the levy posted. The property was afterwards replevied by appellees.

It was insisted that the acts of George were not sufficient to constitute a valid levy, and that appellant Woodside was neither in the actual nor constructive possession of the property at the time the present suit was instituted. The endorsement of George upon the distress warrant, and the return of the same into court, was sufficient to estop Woodside to deny that he by his agent had taken possession of the property in controversy. No rights of third parties were involved. In serving the warrant George, although an officer, was acting but as the agent of Woodside. Alwood v. Mansfield, 33 Ill. 452. Notwithstanding the levy may not have been in fact such as is required by law, appellants by their acts induced appellees to believe that a levy had been made. The rule that where a person by his conduct induces another to believe in the existence of a particular state of facts, and the other acts thereon to his prejudice, the former is estopped as against the latter to deny that such state of facts does in truth exist, is therefore applicable. 16 Cyc. 680; Vail v. Insurance Co., 92 Ill. App. 655; S. C. 192 Ill. 567; Hefner v. Vandolah, 57 Ill. 520; Wheeler v. Barrett, 70 Ill. App. 222.

The evidence discloses that no rent was due to Woodside at the time the distress warrant was issued. The levy of the same therefore constituted an unlawful taking of the property, and no demand was necessary before bringing suit. The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    John Kiick, Appellant, v. Edward Boost, Appellee.
    1. Evidence—what incompetent as hearsay. A letter containing the unsworn statement of one not a party to a cause is mere hearsay and. properly excluded.
    2. Instructions—when upon credibility of witnesses, properly refused. Where both parties to a cause are individuals, an instruction which singles out one of them and directs the jury with respect to judging of his credibility, is erroneous.
    Assumpsit. Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Beach, Hodnett & Trapp, for appellant.
    Humphrey & Anderson and Donald McCormick, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit upon the common counts, by appellant against appellee. Judgment was rendered upon a trial by jury in favor of the defendant and against the plaintiff for costs. The bill of particulars filed with the declaration recites that the defendant agreed that if the plaintiff would sell to the defendant all his interest in a mercantile business then conducted by them, and formerly conducted by the defendant and one Folkers, and would procure from said Folkers a conveyance to the defendant by deed and bill of sale, of all his, Folkers’, interest in said business, and a release by him of all right he might have against the defendant for an accounting, he, the defendant, would pay to the plaintiff the sum of $1,000; that pursuant to said agreement the plaintiff purchased the interest of Folkers for $1,000, in said business, and afterward conveyed the same to the defendant, and also procured from Folkers the conveyance and release referred to; that the defendant in consideration thereof became liable to and promised to pay the plaintiff the sum of $1,000, but that he had failed so to do, etc.

The over-crowded condition of the docket of this court forbids an extended rehearsal and discussion of the evidence. It will suffice to say that we have carefully read and considered the same, and are unable to say that the verdict is manifestly against the evidence.

We find no error in the rulings of the court upon the evidence or instructions. The letter from Folkers was properly excluded. It was but an ex parte unsworn statement of one not a party to the suit. Wins-low v. Newlan, 45 Ill. 150. The court did not err in refusing plaintiff’s first, second, third and fourth instructions. Where both parties to a cause are individuals, an instruction which singles out one of them and directs the jury with respect to judging of his credibility, is erroneous. Taylor v. Crowe, 122 Ill. App. 518; Matthews v. Granger, 196 Ill. 164; Helbig v. Ins. Co., 234 Ill. 251.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Lavada M. Pillo, Appellee, v. Francis M. Pillo, Appellant.
    Appeals and errors—when finding of chancellor not disturbed. Where the evidence is close and conflicting, and the Appellate Court cannot say that the finding of a chancellor was manifestly contrary to the evidence, such finding will not he disturbed.
    Separate maintenance. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Albert Salzenstein, for appellant.
    Graham & Graham, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an appeal from a decree for separate maintenance rendered upon a bill filed by appellee against appellant. The issue of fact as to whether or not appellee was living separate and apart from appellant, her husband, without her fault, was submitted to a jury and a verdict returned in the affirmative. The evidence is in close conflict and we cannot say that such finding, which was approved by the chancellor, was manifestly contrary to the evidence, nor that under the evidence as to appellant’s financial status the amount allowed by the chancellor as alimony was grossly excessive.

The decree of the Circuit Court is affirmed.

Affirmed.