author: Mr. Presiding Justice Scanlan

text:
    Doster & McKibben, Plaintiffs in Error, v. Michigan Central Railroad Company, Defendant in Error.
    Gen. No. 20,275.
    1. Carriers, § 30

      —when duties and responsibilities of carriers governed by acts of Congress. The duties and responsibilities of common carriers of interstate shipments are to be determined wholly by the acts of Congress and the interpretations thereof by the Federal Courts.
    2. Carriers, § 33a

      —what is purpose of act as relating to rates. Sections 2, 6, and 10 of the Interstate Commerce Act, as amended by Act of February 19, 1903, and Act of June 20, 1905, pertain only to the matter of rates, fares and charges, and prohibit any preference or discrimination in that regard, their broad purpose being to compel the establishment of reasonable rates and the uniform application thereof.
    3. Carriers, § 33a

      —when carrier cannot waive provision in contract relating to rates. Under the Interstate Commerce- Act and its amendments a carrier cannot waive any provision in the contract under which the goods in question were transported which was determinative of the rate established for such transportation, for the reason that otherwise it would be within the power of the carrier to violate the law.
    4. Carriers, § 160

      —when liability of carrier may be limited by special contract. Under the Interstate Commerce Act and its amendments, the liability of the carrier may be limited by special contract without violation of the act, provided such limitation be just and reasonable and does not exempt the carrier from liability due to negligence.
    5. Carriers, § 177a

      —when effect of waiver of provision requiring notice of damages of shipper cannot he evaded. The Interstate Commerce Act, with its amendments, was not intended to apply to conditions in the contract between the carrier and the shipper which are not determinative of the rate established, or to enable the carrier to obtain advantages over the shipper in regard to such matters not possessed before the passage of the act, so that the mere fact that the contract in question was on a form filed with the Interstate Commerce Commission into which the carrier had incorporated provisions not determinative of the rate established would not enable the carrier to evade the effect of a waiver of a provision in the contract requiring the shipper to give notice to the carrier within a named time of any claim for damages under the contract, although the provisions incorporated into the form of contract so filed expressly state that a lower rate is given in consideration of the special provisions of the contract than would have been given without such provisions, .especially where such incorporated provisions also expressly state the provisions of the contract which determined the lower rate, from which it may be reasonably presumed that all provisions in the contract other than those expressly stated would be contained in a contract based on the higher rate.
    6. Carriers, § 218

      —what does not constitute preference or discrimination within Interstate Commerce Act. Under the Interstate Commerce Act and its amendments, the fact that the carrier might pay on its merits a claim for liability growing out of negligence in one instance, and might in another instance refuse to pay on its merits such a claim made by another shipper, would not constitute an act of preference or discrimination within the meaning of the act, where it appeared from the contract with the shipper whose claim was paid that the provision waived did not affect the rate established.
    7. Carriers, § 185

      —when provisions of interstate contract may he waived hy carrier. Under the Interstate Commerce Act and its amendments, provisions intended for the sole benefit of the carrier may be waived where such provisions are not determinative of the rate established.
    8. Carriers, § 241

      —when provision in contract limiting time within which claim for damages may he filed may he waived. In an action to recover damages for the negligent transportation of stock in interstate commerce, under a contract providing that any claim for damages thereunder must be presented to the carrier within a stated time, the refusal of the trial court to hold as a proposition of law that under the Interstate Commerce Act and its amendments such provision might be waived, held erroneous.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed December 22, 1915.
    E. L. Carey, Archie J. Deutschman, Frank D. Fulton and John M. Rankin, for plaintiffs in error.
    Winston, Payne, Strawn & Shaw, for defendant in error.

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

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

   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

The plaintiffs in error, hereinafter called the plaintiffs, brought an action of the fourth class in the Municipal Court of Chicago against the defendant in error, hereinafter called the defendant, to recover damages for alleged negligence.

A carload of sheep, the property of the plaintiffs, was delivered by them to the C., K. & S. Ry. Co., at Delton, Michigan, on February 9, 1911, to be transported to Union Stock Yards, Chicago, Illinois. The said railway company carried the car from Delton to Kalamazoo, Michigan, and there delivered it to the defendant, on February 9, 1911, and the latter transported the car to its destination. The negligence alleged in the plaintiffs’ amended statement of claim was a failure to transport the sheep within a reasonable time, a failure to handle the same in a proper manner, and a failure to handle the same in a proper car, from Kalamazoo to its destination. The defendant, in its affidavit of merits, specifically denied the said acts of negligence and alleged that the shipment was handled under the provisions of a written contract between the plaintiffs and the said C., K. & S. Ry. Co., by the terms of which the defendant is released from liability for the alleged damages. The plaintiffs filed an amendment to their amended statement of claim in which they alleged that the said written contract contained a provision that, unless a claim for loss or damage be made in writing within five days from the time the stock is removed from the car, no claim should be allowed or paid by the carrier, or sued for in any court by the plaintiffs; that plaintiffs did not, within five days, present their claim, but that in February, 1911, the plaintiffs delivered a claim in writing to the defendant, and that “said defendant considered said claim without objection as to the matter of filing, and declined said claim on its merits, thereby waiving said provision.”

The case was tried before the court and a jury and at the close of the plaintiff’s case, the court, on motion of the defendant, instructed the jury to find the defendant not guilty. Judgment followed and the plaintiffs have sued out this writ of error to review the same.

On the trial it was stipulated that the defendant failed to transport the car of sheep within a reasonable time, and that the plaintiffs were damaged thereby; that the plaintiffs presented a claim in writing to the defendant on February 21, 1911, and that the latter duly acknowledged the receipt of the same and thereafter investigated the claim on its merits; that on April 17,1911, the defendant wrote to the agent of the plaintiffs a letter, admitting a slight delay in the transportation of the stock and offering to pay the plaintiff “five dollars extra feeding charges which were incurred on account of the stock not arriving earlier, but this is positively the extent of our liability, and the feeding of the stock should make up any shrink which may have occurred. If you will kindly amend your claim to $5, I will at once draw draft in your favor. J. M. Eedson, F. C. A.”; that thereafter the defendant wrote to the plaintiff as follows:

“Replying to your favor of March 19th, our review of the claim file shows that there was no negligence which would call for our assuming liability in this claim, hence my proposition of April 17th, requesting the claim amended to $5.00 extra feeding charges is withdrawn, and the claim is declined outright”; and that the defendant did not make any point as to the five-day claim limitation clause in the contract during the negotiations for a settlement of the claim.

The said written contract, called a “Live Stock Contract,” contained the following provisions:

“That said shipper or the consignee is to pay freight thereon to the said carrier at the rate of 13 cts. per cwt., which is the lower published tariff rate based upon the express condition that the carrier assumes liability on the said Live Stock to the extent only of the following AGREED VALUATION, UPON WHICH VALUATION IS BASED THE RATE CHARGED FOR THE TRANSPORTATION OF THE SAID ANIMALS, and beyond which valuation neither the said carrier nor any connecting carrier shall be liable in any event, whether the loss or damage occur through the negligence of the said carrier or connecting carriers, or their employes or otherwise.
“If Horses or Mules—not exceeding One Hundred Dollars Each.
If Cattle or Cows—not exceeding Seventy-five Dollars each.
If Fat Hogs or Fat Calves—not exceeding Fifteen Dollars each.
If Sheep, Lambs, Stock Hogs, Stock Calves, or other small animals—not exceeding Five Dollars each.
And in no event shall the carrier’s liability exceed $1,200 upon any carload. (Italics ours; capitals not ours.)
“That said shipper is to pay all back charges and freight paid by said carrier or connecting carrier upon or for the transportation of said Live Stock.
“That the said shipper is at his own sole risk and expense, to load and take care of and to feed and water said stock whilst being transported, whether delayed in transit or otherwise, and to unload same; and neither said carrier nor any connecting carrier is to be under any liability or duty with reference thereto, except in the actual transportation of the same.
“That the said shipper is to inspect the body of the car or cars in which said stock is to be transported, and satisfy himself that they are sufficient and safe and in proper order and condition, and said carrier or any connecting carrier shall not be liable on account of any loss of or injury to said stock happening by reason of any alleged insufficiency in or defective condition of the body of said car or cars.
“That said shipper shall see that all doors and openings in said car are at all times so closed and fastened as to prevent the escape therefrom of any of the said stock, and said carrier or connecting carrier shall not be liable on account of the escape of any of said stock from said car or cars.
“The said carrier or any connecting carrier shall not be liable for or on account of any injury sustained by said Live Stock occasioned by any or either of the following causes, to-wit: Overloading, crowding one upon another, kicking or goring, suffocating, fright, burning of hay or straw or other material used for feeding or bedding, or by fire from any cause whatever, or by heat, cold, or by changes in weather, or for delay caused by stress of weather, by obstruction of track, by riots, strikes, or stoppage of labor or from causes beyond their control.
“That in the event of any unusual delay or detention of said Live Stock caused by the negligence of the said carrier, or its employes, or its connecting carriers, or their employes, or otherwise, the said shipper agrees to accept, as full compensation for all loss or damage sustained thereby, the amount actually expended by said shipper in the purchase of food and water for the said stock while so detained. That no claim for damages which may accrue to the said shipper under this contract shall be allowed or paid by the said carrier, or sued for in any court by the said shipper, unless a claim for such loss or damage shall be made in writing, verified by the affidavit of the said shipper or his agent, and delivered to the General Freight Agent of the said carrier at his office in the city of within five days from the time said stock is removed from said car or cars; and that, if any loss or damage occurs upon the line of a connecting carrier, then such carrier shall not be liable unless a claim shall be made in like manner and delivered in like time to some proper officer or agent of the carrier on whose line the loss or injury occurs.
“That whenever the person or persons accompanying said stock under this contract, to take care of the same, shall leave the caboose and pass over or along the cars or track of said carrier, or of connecting carriers, they shall do so at their own sole risk of personal injury from whatever cause, and neither the said carrier nor its connecting carriers shall be required to stop or start their trains or caboose cars at or from the depots or platforms, or to furnish lights for the accommodation or safety of the persons accompanying said stock, or to take care of the same under this contract.
“And it is further agreed by said shipper that, in consideration of the premises and of the carriage of a person or persons in charge of said stock upon a freight train of said carrier or its connecting carriers without charge other than the sum paid or to be paid for the transportation of the Live Stock in charge of which he is, that the said shipper shall and will indemnify and save harmless said carrier and every connecting carrier from all claims, liabilities and demands of every kind, nature and description, by reason of personal injury sustained by said person or persons so in charge of said stock, whether the same be caused by the negligence of said carrier or any connecting carrier or of any of its employes or otherwise.
“And Doster & McKibbin do hereby acknowledge that they had the option of shipping the above described Live Stock at a higher rate of freight according to the official tariffs, classifications and rules of the said carrier and connecting carriers, and thereby receiving the security of the liability of the said carrier and connecting railroad and transportation companies as common carriers of the said Live Stock upon their respective roads and lines, but have voluntarily decided to ship same under this contract at the reduced rate of freight above first mentioned. (See back for Release of Man in Charge.) ”

On the back of the contract appears the following:

“RELEASE FOR MAN OR MEN IN CHARGE
“In consideration of the carriage of the undersigned upon a freight train of the carrier or carriers named in the within contract without charge, other than the sum paid or to be paid for the carriage upon said, freight train of the Live Stock mentioned in said contract, of which Live Stock................in charge,
(I am or we are)
the undersigned do........hereby voluntarily assume
(Does or do)
all risk of accidents or damage to..............person
(His or their)
or property, and do...........hereby release and dis-
(Does or do)
charge the said carrier or carriers from every and all claims, liabilities and demands of every kind, nature and description for or on account of any personal injury or damage of any kind sustained by the undersigned so in charge of said stock, whether the same be caused by the negligence of said carrier or carriers or any of its or their employes or otherwise.”

The defendant’s motion for a directed verdict in its favor was predicated solely on the ground that the plaintiffs had not filed a claim in writing verified by an affidavit within the five-day period designated in the contract. When the motion was made the plaintiffs submitted to the court (inter alia) the following propositions of law:

' ‘ 1. The five-day claim limitation in defendants ’ limited liability live stock contract is, as a matter of law, unreasonable and not a valid bar to plaintiffs ’ right of action.

“2. That the question .of whether or not the five-day limitation of claim provision was a reasonable clause was a question of fact for the jury.

“3. That such provision, if a reasonable .provision, could be waived by the defendant.

“4. That such provision, if a reasonable provision, was waived by the defendant in this case, by negotiating with plaintiffs and considering plaintiffs’ claim on its merits and constituted no valid bar to plaintiffs’ action.

“5. That defendant having given a reason for its conduct and decision, in the letters written agents of plaintiffs, could not after this action was begun, change its ground, and put its conduct upon another and different consideration, to-wit: the failure on the part of the plaintiffs to file claim within five days, as provided in the limited liability live stock contract.

“6. That the five-day claim limitation clause in the live stock contract is a contract, rule, or regulation forbidden by the 20th Section of the Act to Eegulate Commerce, as amended by the Act of June 29,1906, known as the Carmack Amendment thereto. (34th Statutes at Large, page 593, Chapter 3591.)”

The trial court determined these propositions of law against the plaintiffs and held “that the five-day claim limitation in the defendant’s limited liability live stock contract was, as a matter of law, reasonable, and a valid bar to the plaintiffs’right of action; * * * that said provision could not be waived by the defendant; that the defendant could change its ground and put its conduct upon another and different consideration, to wit, the failure on the part of the plaintiffs to file their claim within five days as provided in the limited liability live stock contract, after having given as a reason for its conduct and decision in the letters written agents of the plaintiffs, before this action was begun; * * * further that said plaintiffs were barred by such clause from any right of action.”

The plaintiffs first contend that the five-day claim limitation clause in the contract is void, for the reason that it “is a contract, rule, or regulation forbidden by the 20th section of the Act to Eegulate Commerce, as amended by the Act of June 29, 1906, known as the Carmack Amendment thereto.” On the oral argument of this case, the counsel for the plaintiffs conceded that the decision of the Supreme Court of the United States in the case of Adams Exp. Co. v. Croninger, 226 U. S. 491, is adverse to this contention.

Plaintiffs further contend that even if it be held that the time notice provision in the contract is not void, still it was one that “could be and was waived by the defendant in accepting the claim after the five-day expiration and negotiating within the plaintiffs and considering the plaintiffs’ claim on its merits and constituted no valid bar to the plaintiffs’ action.” We have been referred to numerous authorities in support of this last contention. The defendant contends that “the cases which counsel for the plaintiffs cite in their brief as sustaining their contention that this provision was waived, are all cases from State courts or cases in the Federal Courts which arose prior to the amendments to the Interstate Commerce Act prohibiting discriminations and preferences between shippers. * * * Whatever may have been the law prior to the passage of the Interstate Commerce Act as to the right of a common carrier to waive such provisions in its shipping contracts, since the new act has governed interstate transportation no such right exists”; that there was not and could not be any waiver of a compliance with the conditions of said clause by the defendant. A waiver would constitute a preference and a discrimination expressly forbidden by the Act to Eegulate Commerce.”

The duties and responsibilities of common carriers of interstate shipments are to be found wholly within the acts of Congress and the interpretations of the same by the Federal Courts. Adams Exp. Co. v. Croninger, supra.

In support of its position that a waiver of the provision in question would constitute a preference and a discrimination, expressly forbidden by the Act to Begulate Commerce, the defendant cites certain provisions of the act to which we will now refer.

Section 2 of the Act (3 Comp. Stat. U. S., p. 3155) prohibits and declares it to be unlawful for a carrier to charge a greater or less compensation for service rendered or to be rendered in the transportation of passengers or property, than it charges or receives from any person for a like and contemporaneous service in the transportation of a like kind of traffic, under substantially similar circumstances and conditions. Section 6 (ibid., p. 3156) provides for the making and publication of schedules showing the rates, fares and charges for the transportation of passengers and property; and also (ibid., p. 3157) for the establishing, where passengers and freight pass over continuous lines or routes operated by more than one carrier, of joint tariffs, showing rates, fares and charges for such continuous lines or routes, and also provides:

“And when any such common carrier shall have established and published its rates, fares and charges in compliance with the provisions of this section, it shall be unlawful for such common carrier to charge, demand, collect, or receive from any person or persons a greater or less compensation for the transportation of passengers or property, or for any services in connection therewith, than is specified in such published schedule of rates, fares and charges as may at the time be in force.” (p. 3157.)
“It shall be unlawful for any common carrier, party to any joint tariff, to charge, demand, collect or receive from any person or persons a greater or less compensation for the transportation of persons or property, or for any services in connection therewith, between any points as to which a joint rate, fare or charge is named thereon than is specified in the schedule filed with the commission in force at the time.” (p. 3158.)

Section 10 (ibid., pp. 3160, 3161) provides:

“Any person and any officer or agent of any corporation or company * * * who shall knowingly and wilfully, by false billing, false classification, false weighing, false representation of the contents of the package, or false report of weight, or by any other device or means, whether with or without the consent or connivance of the carrier, its agent or agents, obtain transportation for such property at less than the regular rates then established and in force on the line of transportation, shall be deemed guilty of fraud, which is hereby declared to be a misdemeanor,” etc.

The amendatory Act of February 19, 1903 (U. S. Comp. St. Supp. of 1903, p. 363), provides (page 364):

“It shall be unlawful for any person, persons of corporation to offer, grant, or give, or to solicit, accept, or receive any rebate, concession, or discrimination in respect of the transportation of any property in interstate or foreign commerce by any common carrier subject to said Act to Regulate Commerce and the acts amendatory thereto whereby any such' property shall by any device whatever be transported at a less rate than that named in the tariffs published and filed by such carrier, as is required by said Act to Regulate Commerce and the acts amendatory thereto, or whereby any other advantage is given or discrimination is practiced.”

The act of June 29,1906 (Pub. Acts, No. 357; Supp. of 1909; U. S. Comp. Stat, p. 1155), provides:

“Nor shall any carrier refund or remit in any manner or by any device any portion of the rates, fares, and charges so specified, nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs. ’ ’

All of these provisions pertain only to the matter of rates, fares and charges, and they prohibit any preference or discrimination in that regard. In Texas & P. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, it was said: “The act made it the duty of carriers subject to its provisions to charge only just and reasonable rates. To that end the duty was imposed of establishing and publishing schedules of such rates. It forbade all unjust preferences and discriminations, made it unlawful to depart from the rates in the established schedules until the same were changed as authorized by the act.”

In Chicago & A. R. Co. v. Kirby, 225 U. S. 155, it was said that it was the purpose of Congress “to require that all shippers should be treated alike, and that the only rate charged to any shipper for the same service under the same conditions should be the one established, published, and posted as required by law. It is not so much the particular form by which or the motive for which this purpose was accomplished, but the intention was to prohibit any and all means that might be resorted to to obtain or receive concessions and rebates from the fixed rates, duly posted and published.” The broad purpose of the commerce act was to compel thé establishment of reasonable rates and their uniform application.” To the same effect is Armour Packing Co. v. United States, 209 U. S. 57.

We think it can be said that whenever the Supreme Court of the United States has had occasion to pass upon the meaning and scope of the act in question, it has held that the purpose of the law was to prevent preference or discriminations in the matter of rates, fares and charges.

It is plain that the defendant could not waive any provision in the present contract that was determinative of the rate established. If it were otherwise, a carrier would have it in its power to nullify the law.

In our judgment, the vital question for us to determine in the present case is, was the notice clause in the contract determinative of the rate established?

The claim of the plaintiffs is for damages growing out of the negligence of the defendant in the transportation of the stock. There is no dispute between the parties as to rates, and there is no suggestion that they are attempting in any way to evade the law in question.

As we read the contract, the plaintiff received the benefit of the lower tariff rate established therein, solely because they agreed, that for any loss or damage to the stock, that they might suffer through the negligence of the defendant, or connecting carriers, the carrier assumed liability to the extent only of the agreed valuation of the stock. It has been held that the carrier’s liability in that regard may be limited or qualified by special contract with the shipper, without violating the act in question, provided the limitation or qualification be just and reasonable and does not exempt the carrier from loss or liability due to negligence. Adams Exp. Co. v. Croninger, supra; Missouri, K. & T. Ry. Co. v. Harriman Bros., 227 U. S. 657.

The defendant argues that the “Live Stock Contract” was incorporated and published as a part of its published tariffs and schedules in accordance with the provisions of the act; that thereby the lower rate mentioned in the contract was offered only to shippers who accepted the contract in its entirety; that the plaintiffs, by accepting the contract in its entirety, thereby received the benefit of the lower rate, and that the defendant is bound under the act to maintain and enforce all conditions and regulations contained in the contract; that as the plaintiffs failed to comply with the provision in reference to the notice of loss, the defendant cannot waive the said provision without violating the act.

We do not think that the act was intended to apply to conditions in a contract between a carrier and a shipper that are not determinative of the rate established. If the defendant is right in its present contention, it would follow that it could not waive any of the many provisions and regulations in the present contract. It is obvious that serious and injurious consequences to shippers would result, if the contention of the defendant should prevail. The act was certainly not passed for the purpose of enabling carriers to obtain advantages over shippers in the matter of conditions or regulations in contracts that are not determinative of the rate established, that they did not have before the passage of the law. The mere fact that the defendant incorporated into the “Live Stock Contract” form, that was filed with the Interstate Commerce Commission, provisions that were not determinative of the rate established, would not, in our judgment, give to the defendant, in the matter of the said provisions, the new advantage over the shipper, of being able to evade the effect of a waiver by the carrier of the said provisions. The contract so filed expressly stated the provision that determined the lower rate, and it is reasonable to presume that all other provisions in the contract would be contained in a contract based upon the regular rate. Nor are we able to see how the fact that the carrier might accept and pay, on its merits, a claim of one shipper growing out of alleged negligence, and at the same time refuse to accept and pay, on its merits, a like claim of another shipper (neither having presented his claim within the time limited by his contract for transportation) would constitute an act of preference or discrimination within the meaning of the act, where it appeared from the contract of the party whose claim was accepted and paid, that the provision waived did not in any way affect the rate established.

In support of its contention that it would be a violation of the act in question for the railroad company to waive the five-day claim limitation clause, the defendant cites Clegg v. St. Louis & S. F. R. Co. (122 C. C. A. 273), 203 Fed. 971; Kidwell v. Oregon Short Line R. Co. (125 C. C. A. 313), 208 Fed. 1; Davenport v. Chesapeake & O. Ry. Co. (87 Misc. [N. Y.] 303), 149 N. Y. Supp. 865. We find nothing in the first two cases that supports the defendant’s contention. In fact, we think that these cases, by strong inference, at least, are adverse to defendant’s contention. In the third case cited, practically no facts are stated in the opinion, and it is impossible to tell whether the time limit clause in the contract that was before the court was determinative of the rate established. If it were, an entirely different "question from the one now before us was presented. The court in that case decided that the facts did not establish a waiver, and it expressed a doubt as to whether the carrier had the power to waive the time limit provision for the reason that the form of the bill of lading under which the shipment was made had been approved by the Interstate Commerce Commission.

The following cases hold that it would not be a violation of the act for a carrier to waive a provision like the one in question: Donohoo Horse & Mule Co. v. Missouri, K. & T. Ry. Co. (95 Kan. 681), 149 Pac. 436; Crawford v. Southern Ry. Co. (S. C.), 86 S. E. Rep. 19; Clingan v. Cleveland, C., C. & St. L. Ry. Co., 184 Ill. App. 202.

The stipulation'as to notice was for the sole benefit of the carrier, and before the passage of the act the courts repeatedly held that similar provisions could be waived, and as the present one was not determinative of the rate in the contract, we fail to see any good reason for holding that it would be a violation of the act. for the defendant to waive the same. We think the conclusion we have reached is entirely in harmony with the reasoning of the court in Boston & M. R. R. v. Hooker, 233 U. S. 97.

There was evidence introduced tending to show a waiver of the five-day claim limitation clause by the defendant, and if we are correct in the conclusions that we have expressed as to the right of the defendant to waive the same, it follows that the trial court erred in refusing to hold the proposition of law submitted by theplaintiffs, to the effect that the said clause could bo waived by the defendant, and in directing a verdict for the defendant. The judgment of the Municipal Court of Chicago must therefore be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Carnes

license: Public Domain

text:
    Thomas Claffy, Administrator, Defendant in Error, v. Mary Farrell, Plaintiff in Error.
    Gen. No. 5,758.
    1. Appeal and error, § 1036

      —when assignment of errors constitutes declaration. An assignment of errors stands as the declaration of the plaintiff in error.
    2. Appeal and error, § 361

      —when plea to assignment of errors constitutes confession of error. A plea to an assignment of errors, amounting to pleas of release of errors, constitutes a confession of error.
    3. Appeal and error, § 362

      —when presumed errors well assigned. In considering a demurrer to pleas of release of errors to an assignment of errors it will be assumed that the errors are well assigned.
    4. Appeal and error, § 362

      —when judgment reversed on plea alleging release of errors. Where pleas to an assignment of errors constitute a confession of error, the judgment should be reversed as to the parties pleading them unless the facts alleged in release of those errors are sufficient for that purpose.,
    5. Appeal and error, § 263

      —where existence of error not determined. It is unnecessary to determine whether there was in fact error when there is a demurrer to a plea to an assignment of errors constituting a plea of release of errors.
    6. Appeal and error, § 361

      —what constitutes plea of release of error. On writ of error from a decree of a County Court approving an administrator’s report, discharging the administrator and declaring the estate settled, pleas to the assignment of errors held to constitute pleas of release of errorst
    7. Appeal and error, § 360

      —what does not constitute release of error. The fact that the mother of an infant child and heir, after an alleged erroneous decree of sale of the land of the father, sold and conveyed her interest in the land including her honiestead right, and abandoned and removed from the premises, does not operate as a release of error by the child who, as plaintiff in error, assigns as error that the sale was void as to the entire interest of the deceased,, and consequently of his heir, plaintiff in error.

      8. Appeal and error, § 260

      —what does not constitute release of error. The fact that third persons, in reliance upon an erroneous decree, purchased real estate does not operate as a release of error by a then infant, but now adult, child who sues out a writ of error, where plaintiff in error did nothing to mislead such purchasers or to induce them to acquire interests in the land.
    9. Appeal and error, § 1070

      —when right to join in error not lost. Under the Practice Act, sec. 109 (J. & A. If 8646), defendants in error pleading a release of error to assignments are not deprived of the right to join in error.
    10. Homestead, § 112

      —when sale not valid. There can be no valid sale of homestead property to pay debts subject to the right of homestead, unless the right therein is waived or assigned by law, where the homestead premises are worth less than $1,000.
    Error to the County Court of Lake county; the Hon. DeWitt L. Jones, Judge, presiding.
    Heard in this court at the October term, 1914.
    Demurrers to pleas sustained.
    Opinion filed January 6, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Edwin L. Waugh and Hamlin & Topliff, for plaintiff in error.
    Cooke, Pope & Pope, for defendant in error.

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

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

William E. Farrell, a resident of Lake county, died intestate March 14, 1894, leaving Catherine Farrell, his widow, and Edward Farrell and Mary Farrell, his minor children and only heirs at law. He left household furniture valued at $15 and other chattel property valued at $75, and was at the time of his death the equitable owner of 143 acres of land in said county, the legal title to which was in Thomas Claffy as security for an indebtedness of $2,000, subject to a prior mortgage incumbrance of $4,000. Letters of administration were issued to Thomas Claffy March 6, 1895, and he qualified and proceeded to administer the estate in Lake county in the usual routine of such matters. An appraisement bill was filed and approved, fixing the widow’s award at $654. An inventory was filed showing the interest of deceased in the above mentioned real estate. On July 5, 1895, claims were allowed aggregating $138.86, and on that date the administrator proceeded under section 98 and following sections of our Administration Act (J. & A. ¶ 147 et seq.) in the County Court, to sell the interest of deceased in said real estate to pay debts. The just and true account required by the. statute showed a deficiency of personal property for payment of claims allowed of about $700 and just claims yet to be presented of more than $500, making the total deficiency of personalty for payment of debts about $1,200.

On August 9,1895, the court entered an order directing the sale, and the administrator afterwards reported the interest of deceased in said real estate sold to J. M. Barron, the tenant in possession and a party to the action, for $114. The sale was approved and conveyance ordered but the record shows no report of a conveyance made under the order. October 1, 1898, the administrator filed his final report and was discharged and the estate declared settled. The record brought here does not contain the final report but does contain the finding of the court that all costs of administration had been fully paid, that the widow had accepted $300 in full payment of her award, which sum was partly contributed by the administrator, that all the assets of the estate were exhausted, leaving no funds with which to pay seventh-class claims and that the administrator had waived his claim for services; and the order approving the report, discharging the administrator and declaring the estate settled.

‘Mary Farrell, plaintiff in error, after arriving at the age of eighteen years, brings the record here for review on writ of error, and brings into court here, Thomas Claffy, the administrator, J. M. Barron, the purchaser at the sale, Catherine Farrell, the widow of deceased, Edward Farrell, the other heir of deceased, and various parties who have acquired interests in portions of the land by conveyances and mesne conveyances from J. »M. Barron. And assigns errors as follows:

“First: The County Court of Lake county was without jurisdiction of the subject-matter to enter the said Decree of Sale.
“Second: The County Court of Lake county, Illinois, was without jurisdiction of all the necessary and proper parties defendant or respondent to enter said Decree of Sale.
Third: The County Court of Lake county, Illinois, erred in entering the said Decree of Sale.
“Fourth: The said attempted sale of real estate by the Administrator of the Estate of William E. Farrell, deceased, had under the authority of said alleged Decree of Sale, was illegal and absolutely null and void for want of the proper legal authority to make said sale, which said pretended sale, involving the sale of a homestead was made contrary to the provisions of the law of the State of Illinois.
“Fifth: The County Court of Lake county, Illinois, erred in entering the order approving said alleged sale of real estate.
“Sixth: The County Court of Lake county, Illinois, erred in entering the' order of October 1, 1898, allowing certain claims aggregating $999.87.
“Seventh: The County Court of Lake county, Illinois, erred in entering the order approving the Final Report and Account of the Administrator of the Estate of William E. Farrell, deceased.”

Defendants in error William Ryan, Tobias Jensen, William C. Upton and E. M. Hauser, terre tenants, file here a plea to “the Third Assignment of Error, the sale of the real estate referred to in the Fourth Assignment of Error, and the order of court approving the sale of the real estate.” Defendant in error Joseph M. Barron filed a plea to the whole assignment of error and defendant in error Harry H. Beach, one of the terre tenants, filed a plea to the first, second, third, fourth and fifth assignments of error. Defendants in error who have not pleaded are Catherine Farrell, Edward Farrell, Jane Shaw, J. A. Moulton, Mary J. Fitch, Chicago and Northwestern Railway Company and Thomas Claffy; the latter, Thomas Claffy, has filed a brief seeking to sustain the validity of the pleas, the other defendants in error last named have not filed an appearance.

Plaintiff in error has filed demurrers to the pleas which we took with the case.

The facts pleaded as summarized in defendants’ in error’s brief are as follows:

“1. That the administrator in pursuance of the decree sought to be set aside, sold the real estate in question to the defendant in error, J. M. Barron, by the name, style and description of Joseph M. Barron.
“2. That in pursuance of said sale and after it had been reported and approved by the court, said administrator executed and delivered to said J. M. Barron, defendant in error, an administrator’s deed dated October 12,1895. .
“3. That Catherine Farrell, the widow of the deceased, in consideration of three hundred dollars ($300), sold and conveyed all her right, title and interest in said real estate, including her homestead rights to the defendant, J. M. Barron, and executed and delivered a deed to him dated the 14th day of October, 1895, releasing all rights of homestead exemption, in the body of the deed and in the certificate of acknowledgment.
“4. That prior to or about the time of the execution of said deed, said Catherine Farrell abandoned her homestead in said real estate taking said two minor children with her, and has never since occupied the same as a homestead or otherwise, but has lived in the County of Cook for over twelve years last past and said children have lived with her.
“5. That in March, 1902, said defendant in error, J. M. Barron, sold said real estate to the defendant in error, Harry H. Beach, and by deed dated March 7, 1902, he conveyed the same to Mary J. Fitch in pursuance of said sale to said Harry H: Beach.
‘ ‘ 6. That on the 23d day of June, 1905, said Mary J. Fitch sold five and one-half acres of said estate to a railroad company.
“7. That on the 8th day of March, 1907, said Mary J. Fitch gave a trust deed upon said estate to William C. Upton, trustee, a defendant in error, to secure the payment of a promissory note for five thousand dollars, held by the defendant in error, E. M. Hauser.
“8. That said Mary J. Fitch and the defendant in error, Harry H. Beach, sold and conveyed the balance of said real estate to the defendant in error, Tobias Jensen for the sum of eleven thousand dollars and by their warranty deed dated October 13, 1908, conveyed the same to him, the said Tobias Jensen.
‘ ‘ 9. That said Tobias Jensen became and now is the bona fide owner of said real estate except that part conveyed to the railroad company.
“10. That the defendant in error, William Ryan, is in possession of said real estate as a tenant of said Tobias Jensen, except said five and one-half acres sold to the railroad company.
‘'11. That said Catherine Farrell was of lawful age at the time of the entering of said decree authorizing said administrator to sell said real estate, and was not under duress or" non compos mentis.
“12. That said plaintiff in error, Mary Farrell, arrived at the age of eighteen years in July, 1911; and the said Edward Farrell arrived at the age of twenty-one years in April, 1913.”

The assignment of errors stands as the declaration of the plaintiff in error. Schaeffer v. Ardery, 238 Ill. 557; Austin v. Bainter, 40 Ill. 82. The pleas amount to a confession of error, for which, as to the parties pleading them, the judgment should be reversed, unless the facts alleged in release of those errors are sufficient for that purpose. Thornton v. Houtze, 91 Ill. 199; 2 Cyc. 1008. In considering this demurrer it must be assumed the errors are well assigned. Martin v. Com’rs of Highways, 150 Ill. 158. It is unnecessary to inquire whether there was in fact error. Page v. People, 99 Ill. 418; Beardsley v. Smith, 139 Ill. 290.

Assuming then that the decree is bad as charged in the assignment of errors, and it was in fact bad if the property sold was the homestead estate of deceased, because there can be no sale of property to pay debts subject to the right of homestead, unless the latter is waived or assigned in the manner provided by law, where the homestead premises (the estate of the householder in the land) are worth less than $1,000. Hartman v. Schultz, 101 Ill. 437; Mueller v. Conrad, 178 Ill. 276. Then the inquiry is whether any fact or facts pleaded are. sufficient to work a release of such error by the plaintiff in error who was a party to the suit in which the error was committed.

The fact pleaded that the mother of plaintiff in error, after the decree of sale, sold and conveyed her interest in the land, including her homestead right, and abandoned and removed from the premises, does not operate as a release of error by the child; because while it is true as argued by counsel that the homestead right of the widow and her minor children is during the minority of the children under the control of the mother and she may defeat their right by abandoning the homestead, still the errors assigned are not that the sale failed to result in a conveyance of the homestead estate, but that it was void as to the whole interest of the deceased and consequently of his heir, the plaintiff in error, in the land in question. The substance of the other facts relied upon to work a release of error is that conveyances were made under the decree sought to be reversed and that innocent purchasers have acquired interests in the real estate in question on the faith of the judicial proceedings. It is not pleaded that plaintiff in error has done anything to mislead such purchasers or to induce them to acquire interests in the land. It is difficult to see how the acts of other parties entirely unconnected with plaintiff in error could operate as a release of error by her. Martin v. Com’rs of Highways, supra’. Counsel in support of their pleas call our attention to Denk v. Fiel, 249 Ill. 424; and Ure v. Ure, 223 Ill. 454; holding that innocent third parties may rely upon decree of court. Neither of these cases is authority for the position that third persons, purchasing pending the suing out of a writ of error, may prevent the reversal of an erroneous decree, and we know of no such authority. What rights, if any, innocent purchasers of the land in question may have, as among themselves or against plaintiff in error, in.some appropriate proceeding if the decree is reversed is' not a question now before us.

If the errors are well assigned (and the pleas admit they are), we are of the opinion that there is nothing "in the facts pleaded that operate as a release of those errors by Mary Farrell, therefore the demurrer to the pleas must be sustained and the pleas adjudged bad. We are of the opinion that the pleas should each be treated as a plea of release of errors, and under section 109 of our Practice Act (Jones & Addington Stats. ¶ 8646), defendants in error so pleading are not deprived of the right to join in error. Schaeffer v. Ardery, supra; therefore leave is given to such defendants in error and each of them to join in error if they or he shall be so advised, and in that event to file brief and argument by the first day of the next term.

Demurrers to pleas sustained.


text:
    Mary Frances Lyons, Plaintiff in Error, v. Joseph P. Lyons, Defendant in Error.
    Gen. No. 5,991.
    (Not to be reported in full.)
    Error to the Circuit Court of Livingston county; the Hon. Thomas M. Harris, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed June 22, 1915.
    Statement of the Case.
    Bill for divorce by Mary Frances Lyons, complainant, against Joseph P. Lyons, defendant, in the Circuit Court of Livingston county. To reverse a decree dismissing the bill and ordering costs to be paid by both parties, defendant prosecutes this writ of error.
    It appears that the plaintiff in error filed a bill for separate maintenance November 19,1912, in which she alleged among other things:
    That she is and has been for many years last past been a resident of the said County of Livingston, State of Illinois; and charged as grounds for relief extreme and repeated cruelty, setting out in detail in support of the charge acts of the husband which if proven would entitle her to a decree of divorce if the prayer of the bill asked that relief. Defendant in error filed an answer January 16,1913, in which he “ admits that the said complainant, Mary Frances Lyons, has been a resident of the said County of Livingston, in the State of Illinois for many years last past,” and denies all charges of cruelty.
    Afterwards, January 21,1914, plaintiff in error filed an amended bill praying for a divorce instead of separate maintenance, otherwise not differing materially from her former bill. Defendant in error answered, February 29,1914, with the same admissions and denials as in his former answer.
    The record showed no trial except as contained in the decree, which, after reciting the appearance of parties and a hearing on the pleadings and evidence, finds that the court had jurisdiction, that the equities are with defendant, and further finds affirmatively that defendant was not guilty of cruelty as alleged.
    Abstract of the Decision.
    1. Divorce, § 33

      —when answer construed as admitting residence of complainant in county for statutory period. In a bill for divorce an answer which admits that complainant “has been a resident” of the county wherein the bill was filed “for many years last past” is not open to the objection that.it does not exclude the possibility that complainant might not have been a resident of this State for more than one year prior to the filing of the bill as required by the statute in order to give jurisdiction of the action.
    2. Divorce, § 77

      —when general finding of trial court as to jurisdiction not conclusive on appeal. In a bill for divorce, where the objection of want of jurisdiction is made on the ground of want of residence as required by the statute, it is not a sufficient answer to the objection that the trial court made a general finding that it had jurisdiction of the parties and subject-matter of the action.
    3. Divorce, § 70

      —when defendant estopped to object to want of jurisdiction on appeal. In a bill for divorce, a proper allegation of residence in the bill, if admitted by the answer, will be sufficient on review to estop either party from making the objection of want of jurisdiction.
    4. Divorce, § 77

      —when decree reversed on appeal for laclo of jurisdiction. A decree in a bill for divorce, which on review is not supported by a certificate of evidence or finding of facts showing the residence of complainant to have been as required by the statute in order to give jurisdiction of the action, will be reversed on writ of error or appeal, .although such a decree would" be good as against a collateral attack, for the reason that in such case the question of residence goes to the jurisdiction and may be raised for the first time on review.
    Michael F. Ryan and W. J. Lewis, for plaintiff in error.
    E. A. Simmons, for defendant in error.

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

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

5. Appeal and error, § 725 —when not necessary ore revieio that decree be supported by findings of fact or certificate of evidence. The rule that a decree granting relief must be supported on review by findings of fact or a certificate of the evidence in so far as the allegations of the bill are not admitted by the answer applies only to decrees granting affirmative relief which is sought in the bill.

6. Appeal and error, § 725 —when evidence not necessary to support decree. A decree dismissing a bill needs no supporting evidence, since such a decree may be rendered for want of evidence.

7. Divorce, § 53*—what constitutes dismissal of bill for want of equity. A decree in a bill for divorce which denies complainant’s prayer is equivalent to a decree dismissing a bill for want of equity.

8. Equity, § 345 —when decree not initiated by mere informality. A decree dismissing a bill for want of equity is not vitiated by mere informality.

9. Divorce, § 58 —when decree dismissing bill not rendered insufficient by incorporation of unnecessary finding of facts. Where a decree dismisses a bill for divorce, the fact that an unnecessary finding of facts is incorporated in the decree as a reason therefor does not make it necessary that the decree should find other facts or give other reasons.

10. Divorce, § 53 —when duty of court to dismiss bill for look of jurisdiction. In a bill for divorce, where the court finds that it has not jurisdiction owing to want of residence as required by the statute, it is the duty of the court to dismiss the bill and to provide in some way for payment of costs to be charged against the parties in the proceeding.

11. Divorce, § 80 —when court has discretion to apportion costs between parties. In chancery, and especially in divorce cases, the court has a large discretion in apportioning costs between the parties.

12. Divorce, § 77 —when finding as to residence of complainant not necessary to enable court to enter decree. In a bill for divorce, a finding of the residence of complainant for such time as required by the statute to give jurisdiction, held not necessary in order to enable the court to enter a decree, where the record showed a sufficient averment of such residence in the bill, complainant being estopped by such averment from assigning as prejudicial error the failure of the trial court to include such a finding'in its decree.


author: Mr. Justice Niehaus

text:
    Charles Sulski, Administrator of the Estate of Minnie Seabach, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. Ho. 5,944.
    1. Insurance, § 753

      —when insurer not liable because of misrepresentations as to health. An insurance company cannot be held liable on a policy of life insurance providing that it .shall be void if before its date insured “has been * * * attended by a physician for any serious disease or complaint or has had before its date any' pulmonary disease,” where it appears that before the date of the policy insured had been treated by a physician for tuberculosis, unless there is evidence of a waiver of the condition made after insured had knowledge or notice of the facts relied on in defense, for the reason that to allow a recovery in such a case would be to violate the terms and conditions of the policy.
    2. Insurance, § 855

      —when return of premiums not condition precedent to making defense. In an action to recover on a policy of life insurance, wherein plaintiff was named as beneficiary, a return of the premiums paid on the policy is not a prerequisite to a defense to such action where the defense is grounded on a violation of the conditions of a policy or the terms of the contract, for the reason that such conditions were accepted by insured and are therefore binding on the beneficiary.
    3. Insurance, § 855

      —when return of premiums is prerequisite to defense to life insurance policy. The return of premiums paid under a life insurance policy is a necessary prerequisite to a defense to such policy only where it is sought thereby to avoid the policy ab initio or to rescind or set it aside on the ground of fraud in its procurement, for the reason that in such case,' as in all cases of rescission, it is necessary to place the parties in statu quo, it being inconsistent in such case to claim that the policy was never in force and at the same time to retain the premiums paid as consideration for a risk never assumed.
    4. Insurance, § 753

      —when liability of insurer determined only by insured being in good health. In a policy of life insurance providing that no obligation is assumed by the insurer unless at the date of the policy the insured is alive and in sound health, the fact of the sound health of insured at such time is what determines the liability of insurer, and not the apparent health of insured, nor any one’s belief that insured was in sound health at such time.

      Appeal from the Circuit Court of Bureau county; the Hon. Joe A. Davis, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed with finding of facts.
    Opinion filed July 15, 1915.
    Duncan, Doyle & O’Conor, for appellant.
    Butters & Clark, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

This is an action brought against the Metropolitan Life Insurance Company, appellant, in the Circuit Court of Bureau county, to recover the amount claimed by the appellee to be due and payable under the terms of a life insurance policy issued by the appellant on the life of Lulu Seabach, for the benefit of her mother, Minnie Seabach. The policy was dated September 12, 1910, and the insured died March 23, 1911. The required proofs of death were furnished to the appellant by the beneficiary. The trial by jury was waived, and the case heard by the court. The court found the issues for the appellee and rendered a judgment against the appellant for the sum of $251.87, and costs of suit, from which judgment and appeal was prosecuted to this court.

The policy of insurance contained the provision concerning the liability of the appellant, namely, that “no obligation is assumed by the company prior to the date hereof, nor unless on said date the insured is alive and in sound health. ’ ’ Also the following provision: ‘ This .policy is void if the insured before its date has been rejected for insurance by this or any other company, or has been attended by a physician for any serious disease or complaint; or has had before said date any pulmonary disease,” etc.

The evidence conclusively shows that the insured had been attended professionally by a physician prior to the date of the policy, that is to say from March, 1910 to January, 1911, and that she had been treated for tuberculosis during that time. It also shows that upon the date when the policy was issued, the insured had pulmonary tuberculosis, and that this disease was the cause of her death. A recovery on this policy would, therefore be in plain violation of the terms and conditions of the contract of insurance embraced in the policy, and it is clear that the appellant cannot be held liable, unless it has waived its right to make its defense for a violation of the terms and conditions mentioned, by accepting the premiums paid, after it had notice or knowledge of the matteis of defense stated, and this does not appear to be the case. The knowledge of the matters upon which the appellant bases its defense did not come to the appellant until after the death of the insured.

But it is strongly insisted by the appellee that in cases of this kind an insurance company cannot defend against liability under a policy of insurance, if it has retained the premiums received or has failed to tender them back, and this seems to have been the view taken by the trial court. The contention has apparent "support in the decision of the case of McCurrey v. Metropolitan Life Ins. Co., 168 Ill. App. 625. A return of the premiums however is not a necessary legal prerequisite where the defense against liability is sought to be avoided upon the basis of a violation of the conditions of the policy, or the terms of the contract of insurance. It is necessary, only, where it is sought to rescind or set aside the policy or contract of insurance, as, for instance, for fraud or fraudulent representations on the part of the insured in procuring such contract. The correct rule governing this class of cases is clearly stated by our Supreme Court in the case of Dickerson v. Northwestern Mut. Life Ins. Co., 200 Ill. 270, in these words: “Where the insurance company seeks to rescind and declare the contract void ab initio, it must, as in all cases of rescission, place the parties in statu quo, because in such cases it would be inconsistent to claim that the policy was never in force, and at the same time retain the premiums paid as the consideration for a risk, which had never been assumed.”

In this case it is not attempted to rescind or set aside the contract or have it declared void ab initio, but the defense is based upon a violation of the terms and conditions of the policy itself, which the insured accepted, and which are therefore binding upon the beneficiary. For such a defense a return of the premiums collected is not legally a prerequisite. In re Millers’ & Manufacturers’ Ins. Co. (97 Minn. 98), 4 L. R. A. (N. S.) 231; Goorberg v. Western Assurance Co., 150 Cal. 510.

It is well-settled law that the liability of an insurance company may be legally avoided by a violation on the part of the insured of clauses in an insurance policy like those now under consideration, and many authorities might be cited to sustain this view, but we desire to refer to one which appears peculiarly pertinent to this controversy, namely, the case of Murphy v. Metropolitan Life Ins. Co., 106 Minn. 112, in which the court makes the following expressive statement of the law: “The defense is based upon the express provision of the policy, that no obligation is assumed by the defendant company, unless on the date of the policy the assured is alive and in sound health. It is clear from the language of the policy, that the defendant’s promise of insurance was not absolute but conditional, and that the existence of life and sound health in the insured on the date of the policy is the condition upon which the promise is made. It is the fact of the sound health of the insured which determines the liability of the defendant, not his apparent health, or his or any one’s opinion or belief that he was in sound health. Therefore, if the insured was not in fact in sound health on the date of the policy,- the defendant is not liable, unless it has waived the defense.”

So also, in the case of Gallant v. Metropolitan Life Ins. Co., 167 Mass. 79, the court sums up the discussion of this question by saying: “The company made its own contract, a part of which was that no obligation was assumed by the company unless at the time when the policy was issued the insured was ‘ alive and in sound health.’ If in fact,the insured at that time was not in sound health, the defendant is not liable on the policy.” And the case of Barker v. Metropolitan Life Ins. Co., 188 Mass. 542, is to the same effect. In the case of Hermann v. Court of Honor, 193 Ill. App. 366, at the present term of this court, the matter of the necessity of a return of the premiums received, as a legal prerequisite to making a defense, under circumstances and conditions similar to those involved in this case, was discussed at some length and decided by the court, and the same conclusion was reached as in the present case.

For the reasons stated we are of opinion, therefore, that the trial court erred in refusing to hold the propositions of law submitted by the appellant, which were to the effect that if the insured before the date of the issuance of the policy in question had been attended by a physician for a serious disease or complaint, or had had before said date any pulmonary disease, or if at the date of the issuance of the policy of insurance the insured was suffering from pulmonary tuberculosis and was not in sound health, then that the beneficiary of the policy was not entitled to recover. These propositions should have been held to be the law, and upon the facts and the law the finding and judgment of the cpurt below should have been for the appellant. The judgment is therefore reversed.

Reversed with finding of facts.

Finding of facts to be incorporated in the judgment.

We find that the insured in this case, prior to the date of the insurance policy in question, had been attended by a physician for a serious disease, and had pulmonary tuberculosis, and was not in sound health at the date of the issuance of this policy; and that appellant had no notice or knowledge of the matters of defense above stated until after the death of the insured.


text:
    Grace L. Ferry, Administratrix, Appellant, v. City of Waukegan, Appellee.
    Gen. No. 6,054.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Lake county; the Hon. Charles Whitney, Judge, presiding.
    Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed July 15, 1915.
    Rehearing denied October 21, 1915.
    Statement of the Case.
    Action on the case by Grace L. Ferry, administratrix of the estate of Edward L. Ferry, deceased, plaintiff, against the City of Waukegan, defendant, in the Circuit Court of Lake county, to recover for the death of plaintiff’s intestate, as a result of an automobile accident alleged to be due to defendant’s negligence.
    Defendant pleaded the general issue, and at the close of the evidence, the court on motion of defendant excluded all the evidence and instructed the jury to find defendant not guilty, and a verdict was returned in accordance with the instruction. A motion for a new trial was denied. From a judgment for defendant, plaintiff appeals.
    The testimony given by a number of witnesses for the plaintiff reasonably and fairly tends to prove that the pile of cement, hardened sand or debris had remained in the street, in the usual line of travel, about six weeks, and that no effort had been made by the city authorities to remove it, nor to provide a warning by which to direct the attention of travelers passing in vehicles along the street, in the dusk or darkness of the evening,.of its presence there; that on the afternoon of the day upon which this accident occurred, the appellant’s intestate was riding as a guest in the automobile of his brother who managed and drove it; that the accident occurred in the early dusk of the evening; that the driver of the automobile ran in the usual course of travel on the street, and was in the act of passing around a wagon, which had a hay rack on it, when the automobile collided with the pile mentioned, the presence of which was unknown to the driver. The concussion caused by the collision threw the occupants out of the automobile and onto the pavement, injuring the appellant’s intestate so severely that he died in consequence of his injuries within a few hours.
    Abstract of the Decision.
    1. Trial, § 153

      —when evidence raises question for jury. Where there is evidence on which the jury could, “in the eye of the law,” reasonably find for plaintiff, the issue must be determined by the jury.
    2. Municipal corporations, § 1107

      —when question whether decedent exercised due care in operation of automobile question for jury. In an action to recover for the death of plaintiff’s intestate by reason of being thrown from an automobile in which he was riding, but which was driven by another, .as a result of such automobile’s striking a pile of cement and other materials which defendant was alleged negligently to have permitted to remain in the street, where it appeared that the accident occurred in the nighttime, and it was' relied on in defense that such driver failed to turn on his lights and that at the time of the accident was driving such automobile at an excessive rate of speed, the question whether decedent used due care under the circumstances was for the jury.

      Cooke, Pope & Pope, for appellant.
    Arthur Bulkley, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the , court.

3. Municipal corporations, § 1107 —when speed of automobile question for jury. In an action to recover for the death of plaintiff’s intestate as the result of an automobile accident, where the defense relies on the contributory negligence of the driver of the automobile in that at the time of the accident such automobile was being driven at an excessive rate of speed, the question of excessive speed is one of fact for the jury.

4. Municipal corporations, § 1107 —when question for jury whether absence of lights on or excessive speed of automobile were separately or together contributory and concurrent causes of accident. In an action to recover for the death of plaintiff’s intestate as the result of an automobile accident occurring at night, where it is relied on in defense that the accident was caused by the failure of the driver of the automobile to turn on his lights, and by the excessive speed at which the automobile was running at the time of the accident, it is a question of fact for the jury whether the alleged absence of lights or excessive speed were, together or separately, contributory and concurrent causes of the accident.

5. Negligence, § 198 —when contributory negligence question for jury. Where contributory negligence is relied on as a defense, the question is usually for the jury.

6. Trial, § 199 —when error to direct verdict. In an action where the evidence on controverted questions of fact is conflicting, it is error to direct a verdict.


text:
    Jacob Swenson, Appellee, v. City of Aurora, Appellant.
    Gen. No. 6,015.
    1. Municipal corporations, § 1107

      —when questions of size and depth of hole in sidewalk, and danger therefrom for the jury. In an action to recover for personal injuries alleged to have been sustained as a result of stepping into a hole in a sidewalk, the question of the size and depth of such hole and whether it was of a character to render it dangerous to pedestrians exercising due care i& for the jury.
    2. Municipal corporations, § 1107

      —when question ichether fall on sidewalk proximate cause of injuries for jury. In an action to recover for personal injuries alleged to have been sustained as a result of stepping through a hole in a sidewalk, the question whether plaintiff’s alleged fall on the sidewalk w.as the' proximate cause of the injuries sought to be recovered for is for the jury.
    3. Municipal corporations, § 1107

      —when nature, extent and cause of injuries, to one stepping in hole in sidewalk for jury. In an action to recover for personal injuries alleged to have been sustained as a result of stepping through a hole in a sidewalk, where plaintiff claims such injuries resulted in a permanent stiffening of the joints of his knee and ankle, the question of the nature and extent of the injuries sustained by plaintiff by reason of the fall, and whether the stiffening of the joints was due to that accident or to a fracture of the thigh which plaintiff was shown to have suffered six months later, are questions for the jury.
    4. Appeal and error, § 1404

      —when verdict of jury will not be disturbed on appeal. The verdict of a jury on controverted questions of fact will rarely be disturbed by a court of review unless unreasonable, or it is apparent that such verdict is the result of the passion and prejudice of the jury.
    5. Municipal corporations, § 1079

      —when declaration describing place of accident sufficient. In an action to recover for personal injuries alleged to have been sustained as a result of stepping through a hole in a sidewalk, a declaration alleging that the accident took place “on LaSalle street” in the City of Aurora, held not insufficient in not alleging that such street' was a public street, as the word “street” is a generic term, including within its meaning all public roads of ways within a municipality over which such municipality has jurisdiction and as to which such municipality owes a public duty to keep and maintain it in a reasonably safe condition for public use.
    6. Evidence, § 148

      —when proper to 'permit exhibition of injured leg to jury. In an action to recover for injuries to plaintiff’s leg alleged to have been sustained as a result of stepping into a hole in a sidewalk, it is proper to permit plaintiff to exhibit his injured leg to the jury.
    7. Damages, § 168

      —when error to refuse physical examination of plaintiff. In an action to recover for injuries to plaintiff’s leg, alleged to have been sustained as a result of stepping into a hole in a sidewalk, where plaintiff was permitted to exhibit the injured leg to the jury, the refusal of the trial court to permit a physical examination of the leg by defendant’s physician held error, defendant having the right in such case not only to inspect the leg by sight but also to make a physical examination thereof, under such reasonable restrictions as the court might require.
    8. Municipal corporations, § 1225

      —what are elements essential to validity of notice to city of injuries. In Hurd’s Rev. St., ch. 70, sec. 7 (J. & A. ¶ 6190), requiring persons intending to commence an action against a municipal corporation for personal injuries to give certain notice to such corporation before bringing an action, five elements are emphasized as being essential to the validity of a notice given under the statute: (1) The name of the person to whom such cause of action has accrued; (2) the name and residence of the person injured; (3) the date and about the hour of the accident; (4) the place or location where the accident occurred; (5) the name and address of the attending physician, if any.
    9. Municipal corporations, § 1225

      —when notice to city as to place where accident occurred sufficient. In an action to recover for personal injuries alleged to have been sustained as a result of stepping into a hole in a sidewalk in defendant city, a notice to defendant wherein the hole in question was alleged to be “located upon the west side of said LaSalle street between North avenue and Washington street and opposite Jennings Seminary,” held insufficient-under Hurd’s Rev. St., ch. 70, sec. 7 (J. & A. ¶ 6190), requiring such notice to be given before bringing an action for damages against a municipal corporation to- recover for personal injuries, where plaintiff’s testimony fixes the location with sufficient definiteness as being located “in the sidewalk about fifty-five feet north of the corner of North avenue,” and where no reason appears why plaintiff could not in such notice have fixed the location of such hole with equal definiteness.
    10. Municipal corporations, § 1225

      —what notice to city describing place of accident must contain. A notice to a municipal corporation of intention to commence an action to recover for personal injuries, given in pursuance of Hurd’s Rev. St., ch. 70, sec. 7 (J. & A. ¶ 6190), must, in order to be legally sufficient, contain a sufficiently definite description of the place of the accident as to enable the party interested to identify it from the notice itself.
    11. Municipal corporations, § 1225

      —when notice to city inaccurately describing place of accident sufficient. A notice to a municipal corporation of intention to commence an action to recover for personal injuries, given in pursuance of Hurd’s Rev. St., ch. 70, sec. 7 (J. & A. ¶ 6190), is sufficient, although the description of the location of the accident be insufficient, provided that in the remainder of the notice the place where the accident occurred describes such place with sufficient definiteness to enable the authorities of such municipal corporation to determine such location.
    12. Municipal corporations, § 1225

      —what are requisites of notice to city of personal injuries. The notice required by Hurd’s Rev. St., ch. 70, sec. 7 (J. & A. 6190), to be given to a municipal corporation before bringing an action for damages for personal injuries must be specific and not general as to both time and place, and as definite and exact as it can be reasonably made.
    13. Municipal corporations, § 1225

      —when notice to city of injuries wrongly stating time of accident defective. Although the notice required by Hurd’s Rev. St., ch. 70, sec. 7 (J. & A. ft 6190), to be given to a municipal corporation by one intending to commence an action against such municipal corporation for personal injuries need only set forth “about the hour” when the accident occurred, and therefore does not require an exact statement thereof, yet where claimant in such notice undertakes to state such time exactly and states it wrongly, the notice is insufficient under the statute for the reason that in such case the notice is misleading and detrimental in that it gives the municipal corporation no aid in determining the facts, being in practical effect no better than if the notice had not stated “about the hour” when the accident occurred.
    14. Municipal corporations, § 1225

      —when notice to city not giving hour of accident, fatally defective. Under Hurd’s Rev. St., ch. 70, sec. 7 (J. & A. ¶ 6190), requiring persons intending to commence an action against a municipal corporation for damages for personal injuries to give certain notice to such municipal corporation, a notice which does not state the hour when such accident occurred is fatally defective.
    15. Municipal corporations, § 1225

      -when notice to city of injuries incorrectly stating residence of claimant fatally defective. Under Hurd’s Rev. St., ch. 70, sec. 7 (J. & A. ¶ 6190), requiring persons intending to bring an action against a municipal corporation for damages for personal injuries to give certain notice to such municipal corporation before bringing an action, a notice which incorrectly states the residence of claimant is fatally defective, in that it fails to give the municipal corporation correct information on which it may ascertain the extent and nature of the injury sustained, for the reason that where on the trial on an action such questions are controverted, a definite and correct statement of such residence would be of co-ordinate importance with a similar statement of the place where the accident occurred.
    16. Municipal corporations, § 1225

      —when notice to city giving wrong residence of claimant not unable by proof of residence elsewhere. Where a notice is given in pursuance of Hurd’s Rev. St., ch. 70, sec. 7 (J. & A. ¶ 6190), requiring persons intending to commence an action against a municipal corporation for personal injuries to give certain notice to such municipal corporation before bringing an action, and where such notice is defective in that it states the residence of claimant to be at a named place where claimant in fact never resided, such defect cannot be cured by proof that claimant actually resided at some other place on the street named in the notice as that on which claimant resided, as the cause of the invalidity of the notice is the failure to state correctly the place where claimant in fact resided.
    17. Municipal corporations, § 1223

      —what is object of statute relative to notice to city of personal injuries. The object of Hurd’s Rev. St., ch. 70, sec. 7 (J. & A. ¶ 6190), requiring persons intending to bring an action against a municipal corporation for damages for personal injuries to give to such municipal corporation certain notice before bringing an action, is to furnish timely notice to such municipal corporation of the fact that the party giving the notice claims to have sustained injuries for which he proposes to enforce a claim against such municipal corporation by suit, so as to enable such municipal corporation to investigate such claim while the facts are fresh and the justice of the claim may be readily ascertained.
    18. Municipal corporations, § 1224

      —when provision relative to notice to city of personal injuries condition precedent to maintenance of action. Hurd’s Rev. St., ch. 70, sec. 7 (J. & A. ¶ 6190), requiring persons intending to commence an action against a municipal corporation for personal injuries to give certain notice to such municipal corporation before bringing an action is mandatory and is a condition precedent to maintaining an action to recover for such injuries.
    19. Municipal corporations, § 1233

      —when giving of statutory notice to city of injuries must be averred and proved. In an action against a municipal corporation to recover for personal injuries, the giving of the notice required by Hurd’s Rev. St., ch. 70, sec. 7 (J. & A. ¶ 6190), to be given to such corporation in such case before bringing an action must be both averred and proved.
    Appeal from the Circuit Court of Kane county; the Hon. C. F. Irwin, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed with finding of facts.
    Opinion filed September 13, 1915.
    J. Bruce Amell and Alschuler, Putnam & James, for appellant.
    Mighell, Gunsul & Allen and Sears & Solfisburg,

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

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

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

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

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

   Mr. Justice Niehaus

delivered the opinion of the court.

This is an action on the case commenced by Jacob Swenson, the appellee, in the Circuit Court of Kane county, against the appellants, the City of Aurora,, to recover damages for injuries which appellee claims he received by inadvertently stepping into a hole in a defective sidewalk, situated on the west side of LaSalle street between Washington street and North avenue, in front of a place called Jennings Seminary, and located about fifty feet north of the intersection of North avenue and LaSalle street.

Appellee claims that the injuries which he received by the fall resulted in a permanent stiffening of his left knee and ankle joints. There are many controverted questions of fact in the case, arising from the evidence, as to the size and depth of this so-called hole, and as to whether or not it was of such a character as to be dangerous to pedestrians exercising due care, also as to whether or not appellee proved that the alleged fall upon the sidewalk was the proximate cause of the" injuries from which he claims to be suffering. The nature and extent of appellee’s'injuries was also a contested question, and as to whether or not the stiffening of appellee’s joints was the result of the injuries which appellee received from the fall on the sidewalk, or were the result of another accident which happened to him about six months later, in which he suffered a fracture of the thigh. All these controverted questions and others of a like nature were matters for the determination of the jury, and the findings of a jury upon questions of this kind, arising from the evidence, are rarely disturbed by a court of review, unless the findings appear to be unreasonable, or it is apparent that they result from passion or prejudice existing in the minds of the jury.

An objection is made by appellant to the declaration in the case, and it is claimed that it is insufficient because it does not charge that LaSalle street, in the City of Aurora, is a public street. But this objection is not well taken. The Supreme Court in the case of Carlin v. City of Chicago, 262 Ill. 566, has adjudicated this matter. It wag there held that the word “street”" is a generic term, which includes within its meaning ‘ ‘ all public roads or ways within a municipality over which the municipality has jurisdiction, and to which it owes a public duty of exercising reasonable care to keep and maintain them in a reasonably safe condition for public use.”

On the trial of the case in the court below, the appellee was permitted by the court to exhibit to the jury his injured limb, and we perceive no legal impropriety in this; however, having voluntarily put his injured limb in evidence before the jury, it became appellant’s right not only to examine it by means of sight, but also to make a physical examination of the limb by its physician (who was present) under such reasonable restrictions as the trial court might see fit to require. The refusal of the court to allow such physical examination, under the circumstances, was error. Pronskevitch v. Chicago & A. Ry. Co., 232 Ill. 136.

But appellee’s right to recover against the appellant was dependent upon giving a notice of his claim, as required by section 7 of an “Act concerning suits at law for personal injuries and against cities, villages and towns. Approved May 13,1905, and in force July 1, 1905.” (Chapter 70 of the Revised Statutes of 1913, J. & A. ¶ 6190.) In the case of Reichert v. City of Chicago, 169 Ill. App. 493, five essential elements are emphasized as necessary to constitute a valid notice of this kind, viz.:

(1) The name of the person to whom such cause of action has accrued.

(2) The name and residence of the person injured.

(3) The date and about the hour of the accident.

(4) The place or location where such accident occurred.

(5) The name and address of the attending physician (if any).

The notice which appellee gave to the appellant in this case was deficient in at least three of the requirements mentioned:

(1) The description of the place does not definitely, locate the place where the hole in the sidewalk was situated.

(2) The hour of the accident is definitely fixed at 5:30 in the afternoon, and according to the proof the injury occurred at about 8:30 in the evening.

(3) The notice did not state the residence of the appellee, the person injured.

The statement in the notice of the location of the hole in the sidewalk into which appellee claimed he stepped and stumbled is given as follows: “Said hole being located upon the west side of said LaSalle street, between North avenue and Washington street, and opposite Jennings Seminary, in the city aforesaid.” In the area of sidewalk covered by the description, there may have been a large number of holes. The appellee testified that the hole in question was located in the sidewalk, about fifty-five feet north of the corner of North avenue. This testimony fixes the location with sufficient definiteness, and no reason is apparent why the appellee could not have fixed the location with equal definiteness in his notice to the appellant. “To be legally sufficient, a notice of this kind must contain a sufficiently definite description of the place of the accident to enable the interested parties to identify it from the notice itself.” Benson v. City of Madison, 101 Wis. 312. In this Benson case, supra, the description refers to the place where the accident occurred in the following words’: “On the south side of State street at the intersection of State street and Fairchild street.” It was held to be insufficient, and the court in passing upon the point made use of this language: ‘ The notice in this case is most vague, uncertain and indefinite when applied to the facts proven on the trial and found by the jury. The recovery sought is based upon alleged imperfections in a crosswalk ‘ on the south side of State street at the intersection of State street and Fairchild street. ’ This description of the location might have been sufficient if the remainder of the notice had described the insufficiency in such terms as to enable the city authorities to determine on which side of Fairchild street it was to be found.”

In passing upon the lack of definiteness, in a similar notice, in the case of Lee v. Village of Greenwich, 48 N. Y. App. Div. 391-394, the court says: “If the notice is designed to answer any useful purpose, by way of calling the attention of the authorities to the actual facts and conditions which existed at the time and place, and which caused the accident, and so aid them in forming a judgment as to settlement, it is plain that such a notice as to accidents of this nature should be, as to ‘time’ and ‘place,’ specific and not general, and should be as definite and exact as the claimant can reasonably make it. Such a notice is conclusive upon the claimant in any action afterwards brought for injuries sustained; the time and place cannot be shifted to suit conditions on other days and at other places.”

In the case of Reichert v. City of Chicago, supra, the claimant notified the city that he was “injured by a defective street lamp * * * at and near the intersection of LaSalle street and Madison street, in the City of Chicago.” And the description was held not sufficiently definite.

It may be said concerning appellee’s statement in the notice of the hour at which the accident occurred that it was not necessary to state the hour definitely. The statute only requires a statement of “about the hour”; but, when the claimant does undertake to state the hour definitely, and states it definitely wrong, then such statement becomes detrimental instead of beneficial to the city, for the purpose for which it is required by the statute; that is. to say, instead "of giving the city as nearly a correct idea of the hour as the claimant could give, it suggests a positively incorrect idea on that subject, and so, instead of leading the city to the facts in its investigation, it misleads it. So far as the practical effect is concerned, the city is in no better position than if no hour had been stated, and a failure to state the hour of the accident renders the notice fatally defective. Zycinski v. City of Chicago, 163 Ill. App. 413; Condon v. City of Chicago, 249 Ill. 602. And defects of this kind cannot be cured by showing that the city was not 'actually misled. Ouimette v. City of Chicago, 242 Ill. 501.

But the most serious defect in the notice in question is the failure of appellee to state his place of residence. The residence given in the notice was not his and never had been. The omission of the place of residence is clearly fatal to the validity of the notice. And it is clear that this defect cannot be cured by the showing that he resided at some other place on the same street, for it is the very fact that he resided at some other place than the one mentioned in the notice that renders the notice invalid. Unquestionably, the purpose which the Legislature had in view in requiring the notice to state the name and residence of the party injured and the name and address of the attending physician was to give cities, towns and villages in cases of this kind correct information, upon which they could properly pursue their investigation, to ascertain the extent and nature of the injury suffered by the person injured, which in many cases might become, as it did on the trial of this case, an important and controverted question. It is evident, therefore, that a definite and correct statement as to the residence of the party injured, in the notice, is of co-ordinate importance with a correct and definite statement of the place where the injury occurred.

“The object of the statute is to furnish timely notice to the city, village or town of the fact that the party claims to have sustained an injury and that he proposes to enforce his claim for damages against said' city, village or town by suit, and thereby enable the city, village or town to investigate the claim while the facts are fresh and the justice of the claim can be readily ascertained.” Donaldson v. Village of Dieterich, 247 Ill. 526.

The courts of this State have always insisted on the necessity of a strict compliance with the requirements of this statute, concerning the notice under discussion. The statute is mandatory, and the giving of a notice, such as the statute prescribes, is a condition precedent to the maintenance of a suit for personal injury against a city, village or town; and the giving of such notice must be averred and proved, otherwise the suit will be dismissed and a recovery barred. Erford v. City of Peoria, 229 Ill. 546; Ouimette v. City of Chicago, 242 Ill. 501; Schoeler v. City of Rockford, 160 Ill. App. 217.

For the reason stated the statutory notice given to appellant in this case is clearly and fatally deficient, and the judgment must therefore be reversed.

Reversed with finding of facts.

Finding of facts to be incorporated in the judgment.

We find from the evidence: That the description in the statutory notice to appellant of the place where the injury occurred is not sufficiently definite.

That the hour of the accident is incorrectly stated in the notice. It purports to state the hour exactly, but the accident did not occur within three hours later.

That the residence of the appellee, the person injured, is not stated in the notice. The place of residence stated in the notice was not appellee’s residence and never had been.

That for failure by appellee to give appellant the notice required by law, he has no cause of action against appellant.