author: Mr. Presiding Justice Duncan

text:
    The First National Bank of Chicago, v. Charles C. O’Byrne, Executor, and Clark S. Aubrey. Charles C. O’Byrne, Executor, Appellant, v. Clark S, Aubrey, Appellee.
    Gen. No. 16,924.
    1. Gifts—causa mortis. A gift causa mortis, to be valid, must be made in view of approaching death from an existing sickness or peril, and death must follow therefrom or while it is impending, and there must be delivery with the intention of passing title subject to revocation in case of recovery, and acceptance by the donee.
    2. Banks and banking—rights of depositor. A bank is the debtor of the owner of a deposit and such owner has a right as against the bank to have checks drawn by him, not exceeding the amount of the deposit, paid immediately on presentment and without presentment of the bank book evidencing the deposit.
    3. Gifts—checks. It would seem that a check signed by the donor may be the subject of a valid gift.
    4. Gifts—liability of donor of check. Where a gift of a check is made the drawer is under no liability thereon, except to innocent holders for value, if the bank is insolvent when such check is delivered.
    5. Gifts—when completely executed. A gift causa mortis of a bank deposit is completely executed where the testator, having lost her bank book, draws a check for an amount larger than the fund to insure that the entire deposit may be secured by the donee, delivers the check, intending a delivery of the entire deposit as a gift, parts with all dominion over the deposit and surrenders it to the donee and dies of the then impending peril without revoking the gift.
    6. Banks and banking—assignment of deposit by check. Though the Negotiable Instrument Act, §188, provides that a check of itself does not operate as an assignment of any part of the fund, and that the bank is not liable to the holder until it accepts or certifies the check, yet a valid assignment of the deposit or fund may be made by the drawer of a check to the payee.
    7. Gifts—evidence. Where a check was delivered as a gift causa mortis, the whole transaction between the parties is admissible along with the check to determine whether a valid assignment of the fund was made.

      8. Gifts—delivery. Delivery of a gift causa mortis may be symbolical.
    9. Gifts—evidence of delivery. Less positive evidence is required to establish the delivery of a gift causa mortis to a rela- • tive than to persons not related, and slight evidence of delivery will suffice between relatives in the absence of a Suggestion of fraud or undue influence.
    10. Banks and banking—assignment of deposit hy check,. A check for the entire sum of a deposit is an assignment of the fund if so intended, though the bank has a rule that the fund can be withdrawn only on presentation of the depositor’s bank book, and acceptance of the order by the bank is unnecessary.
    11. Banks and banking—evidence of assignment of deposit. Parol evidence is admissible to show an assignment of a deposit by a check drawn for the entire amount of the fund.
    12. Gifts—when delivery of check operates as assignment of hank deposit. Where a check for a sum larger than the deposit is delivered as a gift causa mortis to insure that the entire fund may be secured by the donee, and the gift is fully executed, the delivery of the check operates as an assignment and delivery of the bank deposit to the donee as between the donor and donee.
    Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed February 19, 1913.
    Rehearing denied March 3, 1913.
    Morse Ives, for appellant.
    Symmes & Kirkland, for appellee.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

The First National Bank of Chicago filed its bill ofinterpleader averring, in substance, that on November 14, 1908, there was standing on the books of said bank to the credit of Jessie S. Donley, $4,288.80, subject to her demand by check or otherwise; that on that date a check signed by Jessie S. Donley, November 13, 1908, for $5,000, to order of Clark Aubrey, and by him endorsed, was presented to it through the Chicago Clearing House for payment, and payment thereof denied by the bank, because in excess of the sum on deposit by Jessie Donley, and that the check was marked, “Be- • turned, not sufficient funds;” that on March 31 and April 7, 1909, respectively, Charles C. O’Bryne, as executor of the estate of Jessie S. Donley, deceased, and Clark Aubrey, made a demand upon the bank for said money; that said executor has commenced, and said Aubrey is threatening, suit against the bank to recover said money; and that the bank has at all times been willing to pay said sum to the person lawfully entitled thereto.

The executor answered and admitted the bill, and further averred that about November 13, 1908, Jessie S. Donley resided at Big Bapids, Michigan; that being about to die she then made and delivered her check for $5,000 on said bank to said Aubrey; that it was made and delivered in contemplation of her impending death without consideration and purely as a gift to said Aubrey; that the. bank had no notice of the check before her death, but that the check was presented by Aubrey to it after her death, and it declined to pay the check or any part of it; and that respondent is the duly appointed and qualified executor of her estate in Coolc County and in Michigan.

Clark S. Aubrey answered and admitted the bill, and further averred in his answer that Jessie S. Donley was his aunt, and that he and William E. Donley, her surviving husband, are her only next of kin; that on November 12, 1908, she requested him to come to Big Bapids, where she then was in a hospital, which he did; that on November 13, 1908, she wrote, signed and delivered to him said check in the words and figures following, to-wit:

“Chicago, Nov. 13, 1908. No-
The First National Bank of Chicago, Pay to the order of Clark Aubrey, $5,000.00, Five Thousand Dollars.
Jessie S. Donley.”

That said check was intended to and did convey all of the funds in said bank to the respondent; that at the time said check was made and delivered the bank book of said Jessie S. Donley had either been mislaid by her or had been secreted by said William E. Donley, and that said Jessie S. Donley drew said check for the sum of five thousand dollars, so that it might cover all her money then in said bank; that the check was meant and given as an assignment of all the fund . which the said Jessie Donley then had in said bank; that at the time that said check was delivered to respondent it was meant to be a delivery to him of all the fund or money that said Jessie S. Donley then had in said bank; and that respondent is the said Clark Aubrey named in said check; and that said Jessie S. Donley at the time she signed said check believed, and was so informed by hér doctor, that she was dying, and that she did die within three hours after the making of said check.

The court ordered and decreed that the bill of inter-pleader was properly filed and that complainant be dismissed with costs. Said cause was heard as to said executor, and Clark S. Aubrey upon the bill of inter-pleader confessed, and upon the said answers, and upon stipulations of the said respondents that said answers were substantially true. The court decreed that Clark S. Aubrey, appellee, was entitled to all of said bank fund or deposit, and directed that the said snm be paid to him. The executor prosecutes this appeal.

The parties to this controversy are agreed that the intent of the deceased, Jessie S. Donley, at the time she delivered the check in question, was by means of said check to transfer and deliver to appellee, Aubrey, all her funds or money that she then had in the First National Bank of Chicago, as a gift causa mortis. The contention of appellee is that she did thereby make a complete delivery of the fund in the bank as a gift causa mortis, while appellant insists that there was no sufficient delivery of the fund, and that the gift or attempted gift was of testamentary character and void, because not in compliance with the statute of wills. The essentials of a gift causa mortis are: (1) The gift must be made in view of approaching death from some existing sickness or peril; (2) the donor must die from that sickness or peril, or while such sickness or peril is impending; and (3) there must be a delivery of the gift to the donee with the intention of passing title thereto, subject to revocation in the event of recovery from the impending illness or peril, and an acceptance by the donee. Varley v. Sims (Minn.) 8 L. R. A. (N. S.) 828; Ridden v. Thrall (N. Y.) 11 L. R. A. 684; Telford v. Patton, 144 Ill. 611.

The subject of the intended gift in this case is a bank fund or deposit, a chose in action, evidenced by a pass book or bank book delivered by the bank to Mrs. Donley at the time she made the deposit, and also evidenced by bank books kept by the bank. The bank was the debtor of Mrs. Donley, and the debt or the bank fund was subject to the demand of Mrs. Donley by check or otherwise. As she was the sole owner or party interested in the deposit, it was her right, as against the bank, to have any check or checks drawn by her, and not exceeding the amount of the deposit, paid by the bank to the payee immediately upon presentment to the bank, and without presentment to the bank of the bank book delivered to her evidencing her deposit. Munn v. Burch, 25 Ill. 35; Gage Hotel Co. v. Union Nat. Bank, 171 Ill. 531.

The check in question was delivered by Mrs. Donley to appellee as a transfer and assignment to Aubrey of the entire bank deposit. Its delivery was intended by her as a delivery to Aubrey of the entire deposit as a gift. Her bank books were lost, or at least she and her searchers could not find them at the time, and she never did find them or have them where she could produce them afterwards. She did all she could at that time to make a gift of the deposit. Because her bank book was lost or misplaced, she could not deliver it to Aubrey, and could not write a check for the exact amount of the deposit, but it was the exact amount of the deposit that she intended to give him. She, therefore, made a check larger than the whole amount of the deposit to insure his getting the entire deposit. She knew he could not get more, and did not intend he should receive more, than the exact sum of the deposit. She died from the then impending peril without ever having attempted to recall or revoke her intended gift, and with the full belief that she had made a complete gift of the deposit to Aubrey. These facts are all admitted, or are necessary conclusions from the admitted facts. We are also warranted by the admitted facts in the further conclusions, we think, that Mrs. Donley intended to, and did in fact, part with all further dominion over the bank deposit, and surrendered the same to Aubrey. In other words, we think, she completely executed a gift causa mortis of the bank fund by the delivery of the check to Aubrey, when all the other admitted facts in connection with the delivery of the check are considered. Mrs. Donley having died of the impending malady, with the gift at her death still in full force, her administrator is not entitled to the bank fund, there being no interests of creditors involved. Appellee acted promptly after he had accepted and received the check to have the same paid to him, and was only prevented from so doing by the bank, and for the sole reason that the check was drawn for more than the deposit. The sole question now, as to the right to the deposit, is between appellee, as the donee, and the administrator of the donor, Mrs. Donley. A gift inter vivos perfected by delivery of the thing given cannot be revoked. Pickslay v. Starr, 149 N. Y. 432.

So, after a gift causa mortis has been perfected by a delivery of the subject of the gift, and after the death of the donor from the threatened peril, with the gift unrevoked prior to the donor’s death, the gift is not revoked by death of the donor, and his administrator cannot revoke it, or recover the thing given.

It is the well settled law that bank deposits subject to check and evidenced by entries in bank books, are subjects of valid gifts causa mortis, and that the delivery of such bank books to the donee by the donor, with or without endorsement and with the intent to make a gift and to surrender all control over the funds deposited, is sufficient to perfect a gift of such funds, if accepted or assented to by the donee, although the account or fund is not transferred to the donee on the bank books. It is the law, too, that certificates of deposit, checks, drafts, bills of exchange, and promissory notes signed by third parties and owned by a would-be donor are proper subjects of gifts causa mortis, and that such gifts may be perfected by the delivery thereof to the donee with or without endorsement. Bidden v. Thrall, supra-, Caldwell v. Groodenough, 170 Mich. 114; State Bank of Croswell v. Johnson, 151 Mich. 538; Callahan v. Forest, 116 N. Y. Supp. 541; Weaterlo v. DeWitt, 36 N. Y. 339; Brown v. Brown, 18 Conn. 409.

The authorities generally hold that a promissory note signed by the donor to the donee and delivered to the donee as a gift is void, because it is merely the delivery of a promise to give instead of a delivery of the thing promised to be given. It has been held, apparently for the same reason, that a check signed by the donor and delivered to the donee is void; that is to say, that it is not the subject of a valid gift. We do not regard the reasoning for such holding as sound and think that the modern descisions do not sustain it. Is a check a promise to pay in the sense that a promissory note is? Is there or was there any mere promise to pay Aubrey any sum of money by Mrs. Donley, as expressed in the check in question? We certainly think not. That check, within itself, as well as all other checks,' simply amounts to authority to the payee to draw the sum mentioned therein from the bank and a direction to the bank by the drawer to pay that sum to the payee. There would have been only a secondary liability upon her part to pay the check, that is,, a liability to pay in case the bank did not pay it, if there had been a valuable consideration for the check. As it was, there would have been no liability whatever on her part on that check had the bank been absolutely insolvent when the check was delivered, except to innocent holders for value. In making a gift the donor simply divests himself of the title to the thing given, and invests the donee with the title thereto. The donor • does not pretend to warrant the title, nor the article given, and is not liable to the donee, if either the article or the title thereto is worthless, and the law does not impose any such liability.' This is true whether the intended gift be a chattel or a chose in action, and because there is no consideration therefor. Suppose Mrs. Donley, instead of writing this check, simply had found her bank book and had written and signed therein this order or endorsement: “Pay all of my deposit in your bank to Mr. Aubrey,” and had then delivered the book with the endorsement to appellee. If delivered as a gift, all the authorities will agree that the delivery was complete. The order or endorsement in the book would have been of the identical same character as the check that was delivered to Aubrey, a direction to the bank to pay the deposit to appellee and a power or warrant to appellee to receive it. So, if the donor had delivered her bank book alone to appellee with intent to give him the deposit, delivery would have been complete by all the authorities, and the same order or the substance of it in the book or with it, would have been considered as having been given by the donor by implication. Yet, the endorsement in the book, the check, or the book itself, or all of them combined, are not the thing she sought to give appellee. If a delivery at all is to be considered as made in any one of those instances, it must necessarily be a constructive or symbolical delivery. The intent of the parties must necessarily determine the question of delivery in any one of the cases. So, the real question in this case is on the question of delivery of the bank deposit or fund, and the mere fact that the subject of the gift was attempted to be passed by Mrs. Donley’s personal check should not end the inquiry as to delivery, and particularly when it is agreed that the check itself was not the thing attempted to be given, but was executed and delivered as a transfer or delivery of the bank fund to Aubrey and by him was negotiated. It must be apparent that if in any case a check is delivered as a transfer and delivery of a bank fund and as a gift, and the gift is invalid, because of an insufficient delivery, it is because the donor cannot or did not make a delivery of the bank fund by his check, so as to surrender and divest himself of all right and dominion over the subject of the gift, and not because the check is a promise to pay or to make a gift by the donor.

All she had to do to make a valid assignment, even by way of a gift, was to deliver the subject of the gift to appellee, so as to part with all dominion and control over the same, and to invest appellee with the title to the same. The assent of the bank to such an assignment or transfer was not necessary. It is conceded that she could make the assignment and delivery by merely delivering her bank book under the same circumstances and with the same intent that she delivered the check. Delivery of a bank book would be merely a constructive or symbolical delivery of the debt or deposit, because the book is not the debt or fund that she was seeking to deliver. An actual, complete delivery of the fund on deposit could not have been made until the banker had assented to the transfer, and had either paid the check or transferred the account on the bank books to appellee. If a symbolical or constructive delivery can be made at all of a sum on deposit, we see no valid reason for holding that the delivery of the fund may not be made by the delivery of a check or order for the whole sum of the deposit as a delivery of the fund, as between drawer and payee, and without the assent or acceptance of the drawee, and particularly where the drawer has lost or cannot produce his bank book. We may say that under our present negotiable instrument act it is the law that a check would not bind the drawee to pay it to the payee, until accepted by the drawee, in any case where the right of the payee was in question. Still, we see no reason why section 188 of that act should be construed as interfering with the right of the drawer of a check to make an assignment of his bank deposit, as between him and his payee. It merely provides that a check of itself does not operate as an assignment of any part of the fund and that the bank is not liable to the holder until it accepts or certifies the check. The whole transaction between the parties and all that was said and done is admissible along with the cheek to determine the question whether or not a valid assignment of the fund was made to appellee, and we find that that transaction did not merely consist of drawing and delivering the check. Notwithstanding the statute aforesaid, we think a valid assignment of the fund may be made by a drawer of a check to the payee. Hove v. Stanhope State Bank, 138 Iowa 39.

The question of delivery, essential to constitute' a gift causa mortis, depends on the intention of the parties ; and the test is did the donor by his act or words, or both, intend to divest himself of the custody and control of the article' given, and place it wholly under the power of the donee, and, if he did, there is a sufficient delivery. The delivery may be actual or constructive, that is, symbolical. Scott v. Union & Planters’ Bank & Trust Co., 123 Tenn. 258; State Bank of Croswell v. Johnson, 151 Mich. 538; Telford v. Patton, 144 Ill. 611.

It requires less positive and unequivocal testimony to establish the delivery of a gift causa mortis to a relative than to persons not related, and where there is no suggestion of fraud or undue influence, very slight evidence will suffice. Caldwell v. Goodenough, 170 Mich. 114.

A check drawn for the entire amount of the deposit is an assignment of the fund, if so intended, notwithstanding the bank’s rule that the fund could not be withdrawn, except when the depositor’s bank book was presented. It is not necessary that the drawee accept the order, and parole evidence is admissible to show an assignment. Dillman v. Carlin, 105 Wis. 14; Brem v. Covington, 104 N. C: 589; Moore v. Davis, 57 Mich. 251; Moore v. Gravelot, 3 Ill. App. 442.

While mere delivery of a check to a third person upon his debtor does not effect a legal transfer of the debt, yet, if the intent is such, it should be so held. Throop Grain Cleaner Co. v. Smith, 110 N. Y. 83; Walker v. Brown, 165 U. S. 654.

The question of whether or not there was a consideration for the check ought not of itself to settle the question of an assignment or transfer of the fund. More evidence perhaps should be required in any case to establish an assignment or a delivery of a bank deposit in the case of gifts, than in those cases where there is a valuable consideration moving, but we are not willing to subscribe to the doctrine that an assignment or a delivery of a bank deposit cannot be made in any case of an attempted gift by a check or order for the entire deposit. That bank deposits are the subjects of gifts causa mortis and that such gifts may be fully executed by means of the delivery of checks, drawn by the donor on the bank and in favor of the donee, without acceptanee or payment thereof or transfer of the account before tht donor’s death by the bank is positively held in the following cases: Varley v. Sims (Minn.) 8 L. R. A. (N. S.) 828; Phinney v. State of Washington (Wash.) 68 L. R. A. 119; Weber v. Salisbury, 149 Ky. 327.

The delivery by a depositor of a check book and a power of attorney to her daughter to draw on the bank in the name of the depositor with intent to make a gift of the deposit to the daughter was held to be sufficient to perfect a gift of the deposit to the daughter against creditors, although the account remained on the bank •books in the name of the donor. Murphy v. Bordwell (Minn.) 52 L. R. A. 849. Extraneous evidence was held admissible to prove the gift.

On the question of constructive or symbolical delivery of bank deposits, we cite the cases of Scott v. Union & Planters Bank & Trust Co., supra, and Whitehouse v. Whitehouse, 90 Me. 468.

Courts are usually cautious in sustaining claims of gifts causa mortis and require them to be established by clear and convincing' proof. Where, however, as in the case before us, there is no question as to the intent of the deceased to make such a gift, there is no just or legal reason why a court should not as readily sustain gift causa mortis as it would a devise by will, if all the requirements of the law to perfect such a gift have been met. We hold that the gift causa mortis in this case was fully executed by the donor, that the delivery of the check in question operated as an assignment or transfer and delivery of the bank deposit to appellee, as between him and Mrs. Donley, and that the gift was not revoked after the same was executed.

The judgment is, therefore, affirmed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    George Goetz, Administrator, Appellant, v. Ida L. Wenzel et al., Appellees.
    Gen. No. 16,960.
    1. Administration of estates—laches. A petition by an administrator to sell land to pay debts will be barred by laches unless filed within seven years .after the death of the debtor or grant of letters, unless such administrator satisfactorily explains the delay.
    2. Administration of estates'—widow’s award. A petition to sell land to pay the widow’s award is properly dismissed where the land was devised to the widow for life with remainder in fee to her daughter, who was appointed executrix, and the evidence shows that the widow collected rents and paid taxes with the intention of accepting the provisions of the will until more than seven years after the testator’s death, and does not support a charge that the executrix and an attorney fraudulently represented that the award would be collected to induce the widow to allow the seven years to run.
    Appeal from the Probate Court of Cook county; the Hon. Charles,,S. Cutting, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed February 19, 1913.
    John O. Wagner, for appellant.
    Ela, Grover, March & Eckert, for appellees.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

January 21, 1910, George Goetz, as administrator de bonis non with the will annexed of George Henry Beck, deceased, filed a petition against Eva Beck, the widow, and Ida Louise Wenzel, a daughter, the only heirs of said deceased,, to sell Lot 1, Block 5, of Fullerton’s Second Addition to Chicago, to pay the debts of said deceased. On the final hearing the court dismissed the petition, and the administrator de bonis non prosecutes this appeal.

No questions arise on the pleadings. . From the uncontroverted evidence it appears that said George Henry Beck died testate February 9, 1899, and seized in fee simple of said lot, the only real estate of which he died seized; that said widow and daughter were his only heirs to survive him, and that by his will duly probated in the Probate Court of Cook County, the deceased devised to his widow, Eva Beck, the said lot for the term of her natural life with remainder in fee after her death to Ida Louise Wenzel, his daughter by a former wife; that the said daughter was named in said will as executrix and was afterwards duly qualified as such executrix; that said real estate was of the value of about $2,500, and that the personal property left by said deceased amounted to abont $200.00; that on October 5, 1903, said executrix filed her inventory and the appraisement of the widow’s award in said estate, amounting to $1,045; that said executrix continued to act as such executrix until about October 19, 1909, when she refused to file a petition to sell the lot and resigned and was succeeded by the administrator de bonis non, who filed said petition; that said award was the only debt allowed against said estate and after the payment of all costs and applying the rest of the personal property to the payment of the widow’s award it was reduced to the sum of $943.12, which sum was the deficiency in the payment of the debts of said deceased and for the payment of which sum the said lot was asked to be sold.

It is admitted by appellant that a petition by an administrator to sell land to pay debts of a deceased person must be filed within seven years after the death of the debtor or the grant of letters, or that the proceeding will be barred by laches, unless the administrator shall satisfactorily explain the delay. Such is the settled law of this State. Digby v. Weber, 149 Ill. App. 487; Wolf v. Ogden, 66 Ill. 224; Graham v. Brock, 212 Ill. 579; White v. Horn, 224 Ill. 238; Frier v. Lowe, 232 Ill. 622.

The only reason or excuse offered in this case for the delay in the application to sell the real estate-by the administrator and the widow is the claim that at the time Mrs. Wenzel was appointed as executrix Mr. Adolph Weiner was employed as an attorney for both Mrs. Beck and Mrs. Wenzel, and that he was employed by them to look after their interests in the estate; and that after said attorney was so appointed he repeatedly promised Mrs. Beck, during the ten years and more following his employment, that he would collect her award for her out of the estate, and thereby caused her to trust and to rely on that promise, until the seven years had run. She also insists that after the seven years had elapsed Mr. Weiner told her he was not her attorney, and that if she wanted her award collected, she would have to get her another attorney.

It is now here insisted that the weight of the evidence in this record clearly establishes her claim and that the purpose of said attorney and Mrs. Wenzel was, by means of said false promises, to induce Mrs. Beck to allow the seven years to run and thereby defraud her of her award, etc.

An examination of the evidence shows that the theory or explanation of the delay in the application for sale is supported solely and only by the testimony of Mrs. Beck, and that her evidence is contradicted in all its material parts by the evidence of Adolph Weiner and Mrs. Wenzel. Mr. Weiner positively testified that he at no time promised to represent Mrs. Beck in the collection of her award, and that she never at any time asked him to do so. He testified also that Mrs. Beck complained to him some years after the executrix was appointed that the lot brought hardly enough money to keep her alive and asked him to submit propositions to Mrs. Wenzel for one or the other to sell and the other to buy and own the entire lot; that he did so and that Mrs. Wenzel rejected the proposition, and that Mrs. Wenzel also refused to assist Mrs. Beck in paying the taxes, and that this was the only service she asked him to do, except to ask Mrs. Wenzel to pay over to her the $200 in money belonging to the estate as personal property. His testimony is entirely corroborated by Mrs. Wenzel, except in a few'minor matters of no importance specially in the decision of the case. It is very probable that Mrs. Beck understood, and that Mrs. Wenzel understood, that Mr. Weiner was the attorney for both, while he understood that he represented the executrix and was to advise an administration and settlement according to the will of the deceased.

We are satisfied, however, from the evidence that it was the intention of Mrs. Beck to accept the provisi,on made her by will, that she collected the rents from the real estate, and paid the taxes thereon with such intention, and that there.was no thought or intention on her part of having the real estate sold to pay her award until long after the seven years had run, and that the court was warranted in its finding that no fraud or deceit was practiced on her by either Mr. Weiner or Mrs. Wenzel.

The decree or order of the Probate Court is, therefore, affirmed.

Affirmed.


text:
    Lydia P. Brown, Appellee, v. Samuel Richardson, Appellant.
    Gen. No. 16,974.
    1. Negligence—proximate cause of injury. Where the manifest weight of the evidence clearly shows that plaintiff Slipped and fell down the porch steps of defendant’s building at a place where there could not be expected to be a guard rail and out of reach of the hand rails on the end of the steps had they had hand rails, neither the want of guard rails on the porch nor the want of hand rails on the end of the steps will be held the proximate cause of the injury.
    2. Negligence—accidental occurrence. In an action for damages for injuries from falling from a porch alleged to have been defective, where the occurrence, under the evidence, may have been accidental, it is error to refuse to instruct the jury that if they believe from the evidence that the alleged injury was accidental, and that neither the plaintiff nor the defendant was negligent, the jury should find the defendant not guilty.
    3. Negligence—evidence of right of plaintiff to enter defective premises necessary. In an action for damages for injuries caused by defects in a building where plaintiff was not a tenant, her evidence should show the purpose of her going to the premises and that she was there by invitation of the occupant or for the purpose of transacting legitimate business.
    4. Pleading—general issue admits possession. In an action for damages for injuries caused by defects in a building, the plea of not guilty, without a special plea denying possession and control, does not put in issue, but admits, such possession or control.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richakd S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed February 19, 1913.
    I. W. Foltz, for appellant.
    Edward Maher and James L. Bynum, for appellee.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

Samuel Richardson prosecutes this appeal to reverse a judgment of $5,000, obtained against him by Lydia P. Brown for personal injuries, after a remittitur of $2,500 had been entered, the verdict of the jury being for $7,500.

The declaration charged that appellant possessed and controlled a certain building known as 7228 Went-worth avenue, Chicago, and containing a certain porch and stairways extending from the different apartments of said building to the street thereby, and which porch and stairways were used by tenants, guests and others who had rights to enter and depart from said building; that appellant negligently and improperly constructed and maintained said porch extending from said building to the street in a dangerous and unsafe condition by failing to protect the same, and the steps leading thereupon from the street, with banisters and guard rails; that while appellee was lawfully in said premises by invitation and while carefully attempting to leave the same in the nighttime, she slipped and fell from and off said porch and steps or stairway to and upon the ground, a distance of, to-wit: fifteen feet, by reason of said negligence, and fractured her arm, and bruised and wounded her head, arms, eyes and body, etc., and that she was ignorant of the danger, while appellant was well aware of the same. A second count contained similar averments with the additional allegation that appellant negligently failed to keep the said porch and steps thereto properly and sufficiently lighted. Appellant pleaded the general issue.

The case was tried upon the allegations of the first count in the .declaration, that appellee was injured by reason of the porch and steps having no guard rails to prevent her from falling off the porch or down the steps. The evidence, in substance, is that the proch off ' of which Mrs. Brown fell and injured herself was by measurement twenty feet long and seven feet wide. The steps to the porch were about fourteen feet long and in the middle of the porch, and lacked about three feet at each end of extending the full length of the porch. The steps were six in number, and the porch was from three to three and one-half or four feet from the ground, its highest point from the ground being at the south end. The house faces east. This porch is in front of two double doors separated by a pillar and the extreme north and south sides of the double doorways appear to be inside of the steps, that is to say, the steps extend a little farther north and south than the north side of the north doorway and the south side of the south doorway. At any rate, it clearly appears from the photographs of the building that the north end of the porch extends farther north than the north side of the north doorway. The oral testimony, does not bear on this point. It is also undisputed that appellee was in the second flat of the building and had to come out, and did come out of the south door of the two north double doors as she left the building, which must be several feet south of the north end of the porch. She testified positively that she walked out of this door straight away to the steps, and fell off the porch. If she did, she must have fallen down the steps, notwithstanding the fact that she testified that she fell off the porch where there were no steps, and that she thought the steps extended the full length of the porch. Her testimony in cross-examination reads like this

“I went in there (in the house) about 5 o’clock (Jan. 13, 1909), and it was half past five when I came out. I went right down the front steps right dpwn to the front platform. There is a door right by the platform (the porch) as I came out of the building. I came right out of that door and walked straight out over the platform and then I fell. I fell off of the first step, the top step. Where there was no step, I went a step and stepped off into space. I thought the step went the whole length of the platform, but it didn’t, as I found afterwards.”

Mr. Denmark, a witness for appellant, testified that appellee told him, prior to the trial, “that she had entered the house from the rear and that she had left it from the front entrance, and that she had walked out on to the porch directly from the door and slipped on the top step and fell, and landed down the stairs, and that she had lain there some time; that her niece had come down and found her, she didn’t know how long it had been, but that she had been unconscious apparently for some time. She talked reluctantly. She said she had been instructed by her attorneys not to talk.”

Lydia Crozier, another of appellant’s witnesses, testified that appellee told her, “that she had slipped on the ice at 7228 Wentworth avenue and broke her arm. She didn’t say which step, she said it was the front steps.”

The foregoing are all the witnesses on the questions of how and where she fell. The manifest weight of the evidence, in other words, clearly shows that she fell down the porch steps at a place where there could not be expected to be a guard rail, and out of reach of the hand rail on the end of the porch, had it had hand rails. Therefore, neither the want of guard rails on the porch nor the want of hand rails on the end of the steps," was the proximate cause of the injury, according to the weight of the evidence. It will certainly not be insisted that a guard rail should be between the doors and the steps, the walk way in entering or leaving the house., It is a principle of law too elementary for the citation of authorities, that, in order for a plaintiff to recover for personal injuries, the defect complained of must be shown to be the proximate cause of the injury.

It also must be apparent that there was no occasion, so far as the evidence shows, for appellee to have gone north or south from the door she came out far enough to entirely miss the steps when she attempted to leave the porch. If she did so, it must be apparent that in the absence of a satisfactory showing why she did so, that such an act would be strong evidence of contributory negligence on her part. Our conclusion, therefore, is that the verdict of the jury in this case is against the manifest weight of the evidence.

It is urged by appellant that the proof fails to show that he was in possession and control of the premises and the porch and steps, etc. The plea of not guilty did not put in issue their possession and control, and as there was no special plea denying such possession and control, it was admitted. McNulta v. Lockridge, 137 Ill. 270; Illinois Life Ass’n v. Wells, 200 Ill. 445; Chicago City Ry. Co. v. Carroll, 206 Ill. 318; Pennsylvania Co. v. Chapman, 220 Ill. 428; Morris v. Williams, 143 Ill. App. 140; Winn v. Cleveland, C., C. & St. L. R. Co., 239 Ill. 132.

This instruction was offered by appellant and refused by the court, to-wit:

“10. If the jury believe, from the evidence, that the alleged injury was accidental, and that neither the plaintiff nor the defendant was negligent, the jury should find the defendant not guilty.”

No other instruction given stated the law in regard to a mere accidental occurrence where neither party was at fault, and the instruction should have been given. City of Chicago v. Lavelle, 83 Ill. 482. Appellant’s refused instruction No. 11 was proper, save the last clause thereof, “and such (porches, platforms and stairways) as are ordinarily used in similar buildings.” There was no evidence to the effect that the porches,and stairways there were such as are ordinarily used in similar buildings. Instructions should be based on the evidence. • Same objections to said No. 11 also apply to appellant’s refused instruction No. 12.

The evidence of appellee should have shown the purpose of her going to the premises in question. If she was invited there to transact legitimate business by the occupant, or was there on legitimate business, appellant would be liable to her, if she was injured by Ms negligence. Illinois Cent. R. Co. v. Hopkins, 100 Ill. App. 594; Schwandt v. Metzger Linseed Oil Co., 93 Ill. App. 365.

As the other errors assigned may not arise on another trial, we do not consider them. For the reasons above stated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Augusta Winterberg, Appellee, v. Phillip H. Winterberg, Appellant.
    Gen. No. 17,002.
    1. Husband and wife—separate maintenance. In order to maintain a bill for separate maintenance,.- a wife need not show statutory grounds for divorce, but it is sufficient if it appears that defendant is persistently and wilfully living separate and apart from her without her fault, and does not furnish her suitable support according to her wants and rights, and within his ability to pay.
    2. Husband and wife—separate maintenance. The complainant in a bill for separate maintenance or for divorce, or for any other relief in chancery, may charge any number of sufficient grounds for the relief prayed and need only prove one sufficient charge in the bill to obtain the relief sought.

      3. Husband and wife—separate maintenance. Evidence held not to establish reasonable grounds or justification for defendant’s desertion of his wife.
    4. Husband and wife—separate maintenance. When a husband earns $3,000 a year, an allowance of $100 a month to the wife for herself and four children in separate maintenance is not excessive.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed February 19, 1913.
    Blum & Blum, for appellant.
    Felsenthal & Beckwith, for appellee.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

Appellee filed her hill for separate maintenance against her husband, Phillip II. Winterberg, charging, in substance, that she was living separate and apart from him without her fault; that he had wilfully deserted her and her four children and had declared it his unalterable intention not to again live with them; that she was an invalid and not able to do much physical work, and was not being properly supported by him; that he had recently demanded that she vacate the eight-room flat in which she and her children lived and upon which he was paying the rent, and separate herself from her children; and that appellant was amply able financially to support bis family and that he earns and receives a salary of more than $4,440 per year.

Upon a hearing the court found that the substance of said allegations had been proved and that appellee was entitled to reasonable support and maintenance for herself and her minor children, and decreed that she have the use and custody of the personal property in her possession, and that appellant pay to her the sum of $1,200 per year in semi-monthly instalments of $50, beginning July 15, 1910.

On this appeal onr attention is directed pointedly to the fact that appellee’s bill also charged cruelty and violence on the part of appellant, and that appellee made no effort to sustain the charges. It is well settled that the complainant in a bill for separate maintenance, or for divorce, or for any other relief in chancery, may charge any number of sufficient grounds for the relief prayed, and that it is only necessary to prove one sufficient charge in the bill to obtain the relief sought.

The evidence for the complainant amply sustains her bill and is, in substance, that she was married to appellant July 21, 1889, and has four children by him; that she was at all times true to him and did everything within her power to make herself satisfactory to him as a wife; that her husband was a traveling salesman, and was away from home about ten months in the year; that prior to August, 1908, appellant deserted her and refused to live with her after that, and insisted that they ought to be divorced; that he assigned as his reason therefor that he was young and had a chance to live happy, and that he could not live happy with her; that after he left her he for awhile paid her $40 per month as rent on the eight-room flat she and her children were living in and $27.50 per week in addition for the support of herself and children; that just prior to filing her bill he refused to pay the rent on their flat and demanded that she abandon it and send their children to a boarding school and that she then moved with her mother and sisters into a house controlled by them; that she is an invalid and has been suffering for Six years with pyelonephritis, pus in the kidneys, and is only able to do very light housework, and that her two daughters have been in bad health; that her husband is receiving $3,000 per year as salary in monthly instalments of $250 and ten dollars per day additional for expenses which includes his hotel bills when traveling. The serious condition of her health is proved by her own testimony and by that of her two physicians and is not questioned. She also testified to the other facts and she is strongly corroborated by her two sisters and her daughter, Lillian. The daughter testified that her father said to her: “I hate you. I never want you to call me your father, and never tell anybody that P. H. Winterberg is your father. In case you are ever happy, never recognize me. But in case of need I will come to you. You know that I would rather live with a rat than I would with your mother, because I hate her as bad as I hate you.” Appellant made no denial whatever of the daughter’s testimony above quoted. In his letter to his wife of August 4, 1908, written in Birmingham, Ala., he said:

“I have fully come to the conclusion to separate from you, which intention I have for the time we have been married, more so for the last ten years. * * * I have fully made up my mind and nothing in this world could change me. So it is up to you to take the steps and sue me for a divorce by mutual agreement. This can be done in a quiet manner, details talked over. I will support you and the two small children as long as I live; and as for Lillian, she will have to depend on you or herself. .1 want all my personal belongings, all my family pictures, put in a trunk, and you will send to me as soon as I come to Chicago. * * * Now, G-us, I think you had better not appear —not oppose such separation; as in case you do I will sue you for divorce, and such scandal and notoriety will hurt the girls’ future and will set very badly on your family, and for that and your mother’s sake you should avoid publicity. As for grounds, I have plenty, some very much reflecting on yourself, so we might as well part in peace. I will never come back to you. * * * Think it over well and talk it over with somebody before refusing. I will pay for the suit in case you bring it.”

The appellant was his only witness and the substance of his evidence in chief offered as a defense is that his wife left him some half a dozen times years ago, and on one occasion she met him as he came home crying and cursing; that she was very nervous and irritable and that they had words about divorce about twelve years ago, but that they lived together after those occurrences; that he was thrown out of his house about fifteen years ago (does not say by whom) and that she called him a liar once when he complained about the meat not being fresh; that he never told his wife or daughter that he was young and would be happy with some one else, and that he wrote the letter of August 4, 1908, because things got to a climax, and that their ideas of cleanliness and the duties of a household wife were different; that after he wrote that letter he went home one time and said to his wife he would stay in the house and try to live with her; and that she told him he could not stay, because George was going to sleep there with their boy and that they occupied the same bed as appellant; that she told him that he could sleep in the hall or on the floor and that that was good enough for him and that then he went down to the Palmer House and never went back to his house again; that he supported his wife, and paid her rent regularly, but admits that he asked her to move and ceased paying the rent and cut down her allowance, claiming it was because he had to cut his expenses to keep within his income. On cross-examination he testified that by a climax he meant “when'things for eighteen or nineteen years are disagreeable, that your wife don’t give you a clean sheet on your bed, or that your wife is not clean enough to cohabit with, and your wife gives you not eatable stuff to eat and curses you and insults you in front of everybody, and if the husband gets a few friends in the house and they are playing cards she will positively insult those friends and order them out—that is what I call a climax. Things of that kind happened the entire time. Those were the things that induced me to write the letter.” He also testified on cross-examination positively that he did not at the time his wife told him he could not stay at his house, and never did at any time, tell his wife that he was ready and willing to go back and live with her, but testified he was then ready to do so.

The foregoing evidence of appellant establishes no justification whatever for appellant’s desertion of his wife, or for his remaining away from her. His evidence is very far from establishing cruelty by her towards him, and the court was warranted in disregarding it altogether. His charges of uncleanliness and of abuse and insults, if they amount to such, are not sustained by statement of facts, from which the court could judge of the truth of such charges. He merely contents himself with stating his conclusions that she insulted him and his friends, ordered them away, and that she was not cleanly, etc. How could the court say that she was not justified in ordering his visitors away, if she did so, unless the court knew the facts and circumstances that caused her to do so? The court was not furnished with any facts or circumstances by which to determine whether or not she was uncleanly. He did not even furnish the court any evidence of the standard by which appellant gauged her cleanliness. The evidence was not of a character to demand replying to by appellee. After the humiliating letter he wrote his wife, he had no right to expect that she would be as cordial and as affectionate to him as she had been, but nevertheless we find ample evidence in the record to the effect that she grieved much on account of his desertion of her and offered, and was willing, to go anywhere and live with him in any home he might choose, and that he still persisted at all times that he would never go back and live with her. The court was fully warranted in the conclusion that his offer on the trial to live with her was not made in good faith, after his withering and cruel and unwarranted denunciations of her, and his repeated declarations that he would not live with her.

The amount allowed appellee for the support of herself and children, at the time she filed her bill, was shown by the evidence to be insufficient, on account of the heavy expenses for physicians and medicines for herself and her daughters, and other heavy household expenses she was required to meet in Chicago, her home. The amount allowed was much less than at first he was paying her. Inasmuch as it was his judgment and the court’s judgment that her wants required $100 a month or more for her support, we think the amount allowed was reasonable and not excessive. After paying $1,200 per year for the support of his wife and children, he will have left out of his salary $1,800, with his board and lodging paid out of his expense money. It is not the law that the wife must show statutory grounds for divorce before she can maintain a bill for separate maintenance. It is sufficient if it appears that he is persistently and wilfully living separate and apart from her without her fault, and does not furnish her suitable support, according to her wants and rights, and within his ability to pay. She has made such proof and has shown that her life is miserable, indeed, by his persistent and unjustifiable conduct. It was up to him to prove that he had reasonable grounds for deserting her and her children after her proof of wilful desertion, but he failed to do so. Wahle v. Wahle, 71 Ill. 510; Hunter v. Hunter, 121 Ill. App. 380; Mellanson v. Mellanson, 113 Ill. App. 81.

The decree is affirmed.

Decree affirmed.


author: Mr. Justice Graves

text:
    Hansell-Elcock Company, Appellant, v. Frankfort Marine Accident & Plate Glass Insurance Company, Appellee.
    Gen. No. 16,977.
    1. Insurance—limitation clause in policy. Where an insurance policy provides that suit shall not be commenced after the lapse of á certain period of time, and the insurance company before the expiration of such time refuses to allow the claim on the ground that it is not liable in any event on the merits, the defense under the stipulation not being then available, such stipulation is not thereby waived as against a suit brought after the expiration of the time limitation.
    2. Insurance—limitation clause in policy. Where an insurance policy provides that suit shall not be brought before the expiration of a certain period, and the insurance company during such period places its refusal to settle a claim on other grounds than such stipulation, under which there is no present liability, its right afterwards to interpose such stipulation as a defense is waived.
    3. Insurance—limitation clause. While limitation clauses in insurance policies are not favored by courts, and slight circumstances will often be held ■ sufficient to constitute a waiver of such stipulations, the mere listening by an agent of the insurance company to a proposition for settlement, and promising to advise the insured of the company’s decision, is not a waiver of a provision that suit must be brought within a specified time.
    4. Insurance—limitation clause. Where an insurance policy provides that suit must be brought within a certain time, if the company misleads the policy holder into believing that it means to settle, or by fraudulent holding out of reasonable hopes of adjustment induces the insured to refrain from bringing suit until too late, the company is estopped from pleading the limitation.
    5. Contracts—condition precedent. A party to a contract, having a right to insist upon a condition precedent to the payment of money or other performance on his part, will waive the condition precedent by a total denial of liability or by placing his refusal to perform on other grounds.
    6. Insurance—cancellation. The Supreme Court of Illinois is unalterably committed to the rule that before an insurance policy can be cancelled upon notice, unless otherwise expressly provided by its terms, it is incumbent on the company to pay or tender to the policy holder the unearned premium.

      7. Insurance—cancellation. Where an insurance policy provides that if it is cancelled by the company “the company shall retain a pro rata premium for the time the policy has been in force,” the return to the policy holder of the unearned premium is necessary, in order to cancel the policy.
    8. Contracts—construction. Where a contract is framed by one party, in stipulations made for its own benefit the construction most favorable to the other party should be adopted.
    9. Pleading—inconsistent defenses permissible.. A defendant may avail himself of as many defenses as the facts warrant even if such defenses are inconsistent, and neither waives the others.
    Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed February 19, 1913.
    Addison L. Gardner and William E. Moss, for appellant, Hansell-Elcock Company.
    Holt, Wheeler & Sidley, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.

Appellee issued to appellant an insurance policy, insuring* it against loss arising* from bodily injury or death suffered by persons not employed by appellant. Appellant was engaged in constructing certain iron work about a building* then being erected. Alec Jacobson was a carpenter working about the same building, but was not in the employ of appellant. He was killed by being struck on the head by an iron rod negligently dropped by an employee of appellant. Suit was brought by the representatives of Jacobson against appellant and resulted in a judgment by agreement against it for $2,500, which was duly paid. This suit was then begun by appellant against the insurance company, appellee here, on the policy of insurance. Appellee pleaded, first, the general issue; second, that the policy was canceled before the injury to Jacobson; third and fourth, that the judgment made the basis of this suit was entered by the consent of appellant and without the consent of appellee; fifth, that appellant carried other insurance; and, sixth, that this suit was not brought within the time limited by the terms of the policy. By leave of court appellant replied double to the sixth plea: First, that when appellee was notified of the injury to Jacobson, it-denied all liability on the policy, on the claim that the policy had been canceled before the injury, and had thereby waived the benefit of the provisions of the policy limiting the time in which actions might be brought thereon; and, second, that the attorney for appellee had agreed with appellant to submit to the Eastern Adjuster of appellee the claim of appellant for indemnity for consideration and to report what settlement would be made; that a like promise was repeated at various times thereafter; that appellant relied on the good faith of appellee, and was by the foregoing facts led to believe that settlement of the claim would be made without suit, and allowed the limitation in the contract to expire, by reason whereof appellee waived the limitation clause of the policy. A demurrer was interposed to the two replications to the sixth plea and was sustained as to the first and overruled as to the second of such replications. A trial on the issues joined culminated in a directed verdict in favor of appellee.

The action of the court in sustaining the demurrer to the first replication to the sixth plea raises the question whether denying the existence and binding force of the policy, and denying any liability under the policy, is a waiver of the right of appellee to insist upon the limitation clause contained therein. The clause is as follows:

“Section 14. That no action shall be brought by the assured against the company upon this policy in any court after the expiration of the period from the date of the accident within which an action for injuries or damages may be brought against the assured, unless a suit be pending against the assured at the expiration of that time, in which event, an action for indemnity under this policy may be brought against the company within sixty days after the final determination of such action, and not afterwards.”

It was a valid and enforceable clause. Stephens v. Phoenix Assur. Co., 85 Ill. App. 671; Ronan v. Michigan Mut. Life Ins. Co., 96 Ill. App. 355. That it was inserted in the policy by appellee and for its benefit there can be no doubt. Neither can there be any doubt that appellee had the right to waive it at any time when it was available to it as a defense. Neither is there any doubt that basing a denial of liability solely on other grounds when the defense of limitation by contract was available would have been a waiver of that defense. The rule is well stated in Lohr Bottling Co. v. Ferguson, 223 Ill. 88, as follows:

“A party (to a contract) having a right to insist upon a condition precedent to the payment of money or other performance on his part will waive the condition precedent by a total denial of liability or by placing his refusal to perform on other grounds.”

This rule has been applied to all sorts of contracts including contracts of insurance. Among the insurance cases in this state, in which it has been recognized, are the following. Williamsburg City Fire Ins. Co. v. Cary, 83 Ill. 453; American Home Circle v. Eggers, 137 Ill. App. 595; Lohr Bottling Co. v. Ferguson, 122 Ill. App. 270; Potomac Ins. Co. v. Atwood, 118 Ill. App. 349. In each of the foregoing cases the limitation held to be waived was that suit should not be brought before a fixed number of days. It will be noted that in each of these cases,- at the time when the company denied liability on the policy, the time before which, by the stipulation, suit could not be begun, had not elapsed, so that the company could then have relied on the stipulation and denied present liability, and insisted on the full time stipulated in which to settle the claim without suit. In other words, the stipulation was at the time of denying liability an •existing present and then available defense and the courts hold in these cases, in substance, that, as such defense was then available and as the companies elected to place their refusal on other grounds, when they could have relied on the stipulation, they must be held to have waived their right to afterwards interpose the stipulation as a defense. There is another line of cases of which the case of Ronan v. Michigan Mut. Life Ins. Co., 96 Ill. App. 355, is a sample, where the stipulation was that suit should not be commenced after the lapse of a certain period of time, and where before the expiration of that time the company refused to allow the claim and placed the refusal on the lack of liability on the policy in any event, in which the courts hold that, as against a suit brought after the limitation by contract has expired, such limitation is a valid defense, notwithstanding the company had before denied liability on the merits. The reason for such holding is manifest. In these cases the stipulation was not a defense available to the companies when liability was denied on other grounds, because the time during which those claiming under the policies might sue thereon had not elapsed, and if suit should be brought within the time limit contained in the stipulation, it would never be an available defense. The two lines of cases are not in conflict, as counsel seem to suppose, but are in harmony. From all the authorities we deduce the rule that where, and only where, a limitation by contract is an existing and available defense, at the time the company denies liability on other grounds and ignores such limitation, it is waived and cannot afterwards be relied upon as a defense.

The position taken by counsel that, because appellee here has interposed by plea the defense that the policy in question was canceled before the injury made the basis of the suit occurred, it cannot avail itself of the limitation clause, also is not tenable. No proposition is more thoroughly settled in this state than that under our system of pleading a defendant may avail himself of as many defenses as the facts warrant, even if such defenses are inconsistent. The plea relying on the cancellation of the policy and the plea relying on the limitation by contract, as well as all' the other pleas, were filed simultaneously and neither waives the other as a defense.

The replication, to which the demurrer was sustained, was clearly insufficient. It fails, to show that, when appellee denied liability on the policy on the ground that the same had been cancelled before the injury to Jacobson, the limitation by contract had expired; in fact, it expressly shows the contrary to be true. The demurrer to this replication was properly sustained.

It is claimed by appellee that the policy was canceled; that Ayres & Petrie, who negotiated the policy and received from appellant the premium and by whom the policy was delivered to appellant, were mere insurance brokers and in this transaction were the agents of appellant and not of appellee, and that, as the premium paid for the policy, although paid to Ayres & Petrie by appellant, was not in fact actually turned over by Ayres & Petrie to appellee, it was not necessary for appellee to return to appellant the unearned part of the premium at the time cancellation of the policy was ordered.

In the view we take of this ease, it will not be necessary to discuss in detail the evidence on the question of whether Ayres & Petrie were the agents of appellee or appellant, or were mere brokers. Suffice it to say, to our minds it clearly establishes the fact that they were the agents of appellee, not only in negotiating and delivering the policy, but in receiving the premium, and that the payment of the premium to them was a payment to appellee.

On the question of the right of appellee to cancel the policy without a return of the unearned part of the premium, there are two lines of authorities hopelessly in conflict. By one line of these authorities it is held that, when the policy provides for cancellation upon notice, the giving of such notice is sufficient without being accompanied by the return or tender of the unearned premium. Among this class of cases are the following: Newark Fire Ins. Co. v. Sammons, 11 Ill. App. 230; Colonial Assur. Co. v. National Fire Ins. Co., 110 Ill. App. 471; Davidson v. German Ins. Co., 74 N. J. Law 487; Schwarzchild & Sulsberger Co. v. Phoenix Ins. Co., 115 Fed. 653; Crescent Ins. Co. v. Griffin & Schook, 59 Tex. 509, and others.

The other line holds that, unless otherwise expressly provided by the terms of the policy, before a policy can be canceled upon notice, it is incumbent on the' insurance company to pay or tender to the policy holder the unearned premium. To this latter holding our Supreme Court is unalterably committed. Peoria Marine & Fire Ins. Co. v. Botto, 47 Ill. 516; Aetna Ins. Co. v. Maguire, 51 Ill. 342; Dickerson v. North Western Mut. Life Ins. Co., 200 Ill. 270. The Appellate Court of this state has also, in numerous cases, followed this rule. Hartford Fire Ins. Co. v. McKenzie, 70 Ill. App. 615; Peterson v. Hartford Fire Ins. Co., 87 Ill. App. 567; Dickerson v. North Western Mut. Life Ins. Co., 102 Ill. App. 280; Hartford Fire Ins. Co. v. Tewes, 132 Ill. App. 321; Williamson v. Warfield, Pratt, Howell Co., 136 Ill. App. 168.

The clause in the policy before us, under which it is claimed the policy was canceled, is as follows:

“Section 5. That this policy may be canceled by the company at any time. It may also be canceled by the assured, provided the premium has been paid. If canceled by the company, it shall retain a pro rata premium for the time the policy has been in force; if canceled by the assured, the company shall, after deducting 25 per centum of the whole of the premium for expenses, retain a premium computed according to the customary short rates, based upon the amount of pay roll expended up to the date of cancellation.”

This stipulation was framed by appellee and, so far as ¿t provides for the cancellation of the policy by the company, it was for the benefit of the company. The construction most favorable to appellant should be adopted. The language used, “If canceled by the company, it shall retain a pro rata premuim for the time the policy has been in force,” plainly implies that the balance of the premium above the pro rata to be retained shall be paid to the policy holder, or in other words, that, when the policy is canceled by the company, it shall retain no more than a pro rata premium for the time the policy has been in force, and necessarily, if only a part is to be retained, the balance mnst not be retained, or again, in other words, the balance must be turned over to the insured, he being the person entitled to it. We think the plain meaning of this stipulation is that the cancellation of the policy and the return of the unearned premium are to be concurrent, simultaneous acts. The evidence in this case shows beyond all controversy that, when appellee notified appellant that it had canceled the policy, it did not return or tender the unearned premium to appellant. In failing to do so, it did not bring itself within the terms of the cancellation clause above quoted, and in failing to do so failed to cancel the policy, but left the same in full force.

This suit was not begun until after the time limited in the 14th stipulation of the policy above quoted, in which it was to be begun, had expired. The defense of limitation by contract was duly interposed by proper plea and must prevail, unless the same was waived by acts of appellee or its authorized agents, shown by the evidence in the record. Giving to this evidence all the force that can be justly claimed for it by appellant, it may be held to establish the fact that the law firm of Lackner, Butz & Miller were the authorized agents of appellee, and that they submitted to appellee at the request of the attorney of appellant a proposition for settlement of the claim here sued on, and informed the attorney for appellant that they would let him know what the company said about it, and that they did not let him know what the company said about it until after action was barred by the terms of the limitation clause of the policy. There is not a word of testimony that appellee or its attorneys or agents ever suggested a settlement or held out any hope that a settlement could be effected, or requested appellant to withold the bringing of a suit until an answer to appellant’s proposition for settlement could be obtained. On the contrary, the proof does disclose that, when the attorney for appellant made his proposition for settlement to Mr. Miller of Lackner, Butz & Miller, he, Miller, said the position of the company was that the policy had been canceled and was not in force at the time Jacobson was injured. While it is true that limitation clauses in policies of insurance are not favored by the courts, and slight circumstances will often be held- sufficient to constitute a waiver of such stipulations, it has never, so far as we are aware, been held that an agent of an insurance company, by merely listening to a proposition' for a settlement and submitting it to the company and promising to advise the insured what reply he should receive from the company, would even tend to show a waiver. Several cases are cited by appellant and relied on as authorities justifying their claim of waiver. In Andes Ins. Co. v. Fish, 71 Ill. 620, it was uncontradicted that the insured forebore bringing suit within the limitation in the policy at the instance of the agents of the insurance company. In North American Acc. Ins. Co. v. Williamson, 118 Ill. App. 670, the court said:

“If the company misled appellee into believing that it meant to settle, it cannot complain if it is held es-topped.”

In the cases of Peoria Marine & Fire Ins. Co. v. Whitehill, 25 Ill. 466, and Farmers’ & Merchants’ Ins. Co. v. Chestnut, 50 Ill. 111, it was held that such a provision in a policy would be waived, if the company by fraud or by holding out reasonable hopes of adjustment induced the insured to refrain from bringing suit until too late. In Turner v. Fidelity & Casualty Co. of New York, 112 Mich. 425, the delay in bringing suit was at the request of the company to enable the adjuster of the company to confer with the attorneys of the insured. None of these cases or any other cases to which we are referred are authority for holding that the facts in this case constitute a waiver.

As there was no evidence in this case fairly tending to show that the delay in bringing this suit was caused by any act, promise or inducement of appellee or its agents, the peremptory instruction was properly given.

The judgment of the Superior Court is, therefore, affirmed.

Judgment affirmed.


text:
    Austin H. Hart, Appellee, v. William J. Wilson, Appellant.
    Gen. No. 17,005.
    1. Instructions—as to proposition of law not involved in case. Under Practice Act, §72, providing that the court in charging the jury shall only instruct as to the law in the case, where counsel improperly argues before the jury a proposition of law which is not involved in the case, it is error to instruct the jury on such proposition, and the correct practice is for opposing counsel to ask an instruction that the proposition is not involved in the case and should be entirely disregarded.
    2. Appeals and errors—conflicting evidence. Where the evidence is sharply conflicting, courts rarely feel warranted in holding a verdict manifestly wrong.
    3. Attorney and client—action for fees. Verdict in action for attorney’s fees held not manifestly contrary to the weight of evidence.
    4. Attorney and client—fees. Where defendant fails to product evidence as to reasonable and proper charges for services such as rendered by plaintiff, he cannot complain that the jury followed plaintiff’s evidence.
    Appeal from the Superior Court of Cook county; the Hon. William H. McSurely, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed February 19, 1913.
    Bowersook & Stilwell, for appellant.
    James Turnock, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.

This is a suit for attorneys’ fees and expenses. Appellee is a lawyer who has practiced his profession in various parts of the United States and who, at the time he claims to have been employed by appellant and to have rendered the services and incurred the expenses in question, claimed a residence in Detroit, Michigan. The services, in which the charges were made, were rendered in and about Kingman, Arizona, and had to do with the affairs of the Sun Cloud Grold Mining Company, and appellant, William J. Wilson, its president. The case has been twice tried, the verdict of the jury being in each instance for appellee. The first verdict was for $1,120.90 and the last one was for $2,809.20. The judgment on the first verdict was reversed by the Appellate Court in the case of Wilson v. Hart, 129 Ill. App. 329. A judgment was rendered on the second verdict. Appellant seeks now to obtain in this court a reversal of that judgment on three grounds: First, that the verdict is not supported by the evidence; second, that the 15th instruction asked for by appellant was improperly refused; and, third, that the trial judge made improper remarks while the case was pending.

The rule that an Appellate tribunal will not reverse a judgment, unless it is manifestly against the weight of the evidence, is a wholesome rule and is universally adhered to. It is rare, indeed, where the evidence is sharply conflicting, that courts feel warranted in holding a verdict to be manifestly wrong. The evidence in this case is hopelessly in conflict on several important issues, but we think fairly tends to show an employment of appellee by appellant to represent him in the matters in which the charges are made. As already stated, two juries have by their verdicts found that appellee was employed by appellant and that services were rendered- by appel= lee in the line of that employment that had not been paid for. The discrepancy in the amount of the two verdicts is accounted for by the fact that in the first trial there was no competent evidence before the jury as to what was the usual and customary charges of lawyers in Arizona for services of the kind rendered by appellee for appellant, while in the last trial there was evidence by a then resident attorney of that state placing the customary charge there at an amount warranting the verdict. If the amount is too high, appellant has only himself to blame. He appealed from the former judgment to the Appellate Court and secured a reversal of it in part on the ground that evidence of the usual and customary charge for the services, in the state where the same were rendered, had not been produced by witnesss familiar with the same. In the second trial, appellant himself failed in that identical matter and submitted the case to the jury, as to that issue, on the testimony of appellee’s witness, Dickson, who was an attorney practicing at King-man, Arizona, at the time the services in question, were rendered, and familiar with the usual and customary charges of attorneys there for services of a like character. The value of the services rendered was one of the vital issues in the case and appellant knew it and he should have been prepared to .present proof in support of his contention that the charges were excessive. Failing in this, he cannot be heard to complain that the jury followed the only evidence before them in fixing the amount appellee was entitled to receive. We think the evidence fairly tends to support the verdict, and it is certain the verdict is not so manifestly contrary to the weight of the evidence, as to warrant a reversal of the judgment for that reason.'

The instruction that was refused was with reference to the effect of the transfer of property by a person to secure a debt, within four months of the filing of a petition in bankruptcy, and informed the jury that such a transfer is deemed to be a preference of such creditor and may be set aside and treated as null and void. It is not claimed by appellant that the proposition covered by this instruction was an issue in the case, but it is insisted it should have been ■ given to counteract an improper argument on that subject made by the attorney for appellee. Section 72 of the Practice Act provides that “the court in charging the jury shall only instruct as to the law in the case.”. It would have been error to have given this instruction, regardless of what counsel for appellee said in his argument. It is not for the jury to determine, or for the court to instruct, in regard to the correctness of a proposition of law not involved in the issues in the case on trial, merely because counsel for one side or the other see fit to improperly argue such propositions to the jury. When such propositions are so improperly argued, the correct practice is for counsel to ask an instruction by which the jury shall be informed that the proposition argued is not involved in the case on trial, and that it is the duty of the jury to entirely disregard such argument. The instruction referred to was properly refused, regardless of whether it was handed up too late under the rules of the court.

Lastly, the remarks of the court complained of were not made in the presence of the jury, and there is not the slightest showing that the same were ever in any way brought to the attention of any member of the jury, or that appellant was in any way prejudiced by them. It is often true that courts, in disposing of motions or objections out of the hearing of the jury, necessarily and properly make comments which it would be improper to make in the presence of the jury, but such remarks are never made the basis for reversing a judgment without some showing that a party has been prejudiced thereby.

Finding no reversible error in the record, the judgment is affirmed.

IJudgment affirmed.


text:
    Joseph Sturonois, Appellee, v. S. Morris and George Davy, Appellants.
    Gen. No. 17,054.
    1. Instructions—when motion to direct verdict is properly denied. When there is evidence fairly tending to support all the material averments in the declaration and sufficient, standing alone, to warrant a verdict for the plaintiff, defendant’s motion to direct a verdict is properly denied.
    2. Master and servant—where motion to exclude evidence for variance is properly denied. In an action for personal injury from the falling of an iron ball used to break scrap iron, evidence that the foreman, after placing plaintiff at work about the ball, started the horse while the trip rope was caught or in a position where it would be likely to catch and release the ball, so it would fall on plaintiff, is sufficient to support a count averring that the foreman so negligently managed and handled the derrick and rope that the ball became detached and fell on plaintiff, and defendant’s motion to exclude the evidence for variance is properly denied.
    3. Master and servant—sufficient averment to negative knowledge of danger. In an action for personal injury from the falling of an iron ball used to break scrap iron, a count which avers that the plaintiff did not know and could not by the exercise of ordinary care have known that the act of negligence was to be performed by defendant’s foreman, sufficiently negatives knowledge or opportunity to know of the impending negligent act.
    4. Master and servant—where count states cause of action sufficient to prevent the running of the statute of limitations. In a personal injury action, where the declaration avers that it was the duty of defendants to manage certain machinery with reasonable care for the safety of employees, that they failed in that duty and plaintiff was injured, there is a sufficient statement of a cause of action to prevent the running of the statute of limitations against an additional count.
    5. Practice—proper way to take advantage of improper argument of counsel. Where counsel desires to take advantage of an improper argument by his adversary, he should first object and obtain a ruling of the court, to which he may take exception if adverse, there being no such thing as exception to the argument.
    Appeal from the Circuit Court of Cook county; the Hon. Duane J. Carnes, Judge,- presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed February 19, 1913.
    Rehearing denied March 3, 1913.

      Winston, Payne, Strawn & Shaw, for appellants; John Barton Payne, John D. Black and John C. Slade, of counsel.
    David K. Tone and Henry M. Ashton, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.

Appellants, by the name of S. Morris & Company, were, at the time of the occurrences here involved, scrap iron dealers and maintained yards to which scrap iron gathered by their employees was brought and broken up. Appellee was a teamster in the employ of appellants. The iron was broken by means of a large pear shaped iron weight, weighing from 1,500 to 1,800 pounds, which was elevated by means of pulleys and ropes to the desired height, depending on the size of the scrap iron to be broken, and was then released by means of a cord attached to a trip lever and manipulated by an employee. It was the practice, when the weight was at the proper height, to start it swinging before it was released and to release it when, in swinging, it assumed a position where ■it would fall on the scrap iron to be broken. The pulleys were operated by horse power. It was the custom of the teamsters, when called upon to do so, to assist in the operation of breaking scrap iron. The evidence fairly tends to show that on the day in question appellee came into the yards with the horse he was driving and was instructed by the foreman of appellants in charge of the work there at the time to assist another employee, spoken of as “Charley,” in removing from the large iron weight, scraps of iron then partially covering it, which appellee proceeded to do, and that while he was so engaged the foreman caused the horse hitched to the rope by which the weight was raised to start and the weight to be raised; that by some means the trip rope, by which the weight was released from the elevating appliance, was held down so that the weight was released, and either fell upon appellee, or near to him and rolled upon him, crushing one of his legs, so that the same was necessarily amputated. Appellee secured a verdict and judgment for $7,500. This is an appeal from that judgment.

So far as the claim of appellants that the court should have allowed their motion to direct a verdict is concerned, it is sufficient to say, in disposing of such a motion, it is not for the court to weigh the evidence. There is evidence in the record fairly tending to support all the material averments in the declaration and sufficient, standing alone, to warrant a verdict for the plaintiff. Under such circumstances it would have been error for the court to have directed a verdict for the defendant. Libby, McNeil & Libby v. Cook, 222 Ill. 206.

The contention that the verdict is contrary to the weight of the evidence is likewise without merit. In each case, where a controversy of fact arose, appellee supported his contention by his own testimony and by the testimony of the witness “Charley,” who was in immediate charge of the appliance at the time in question, while in opposition to that appellant pro-duced only the testimony of the foreman, whose act in starting the horse without notice to appellee- is claimed by appellee to have caused the injury.

While it is true the testimony of “Charley” is somewhat weakened by evidence tending to show that he had made contradictory statements concerning the occurrence, the circumstances, under which it is claimed such contradictory statements were made, were such as might well have caused the jury to believe he did not make them. Persons representing appellants, who did not speak the Lithuanian language, went to the witness “Charley,” who spoke the Lithuanian lanugage only, and put certain questions to him through the foreman, acting as'an interpreter, who says he then translated his answers, or at least part of them, into the English language, and that the same was written down in the form of a statement of how the accident happened, which statement was then signed by “Charley.” The foreman interpreter testified that “Charley” made the statements incorporated in the writing signed. “Charley” testified he did not make such statements and that the same are not true. Again appellants claim that after a former trial “Charley” admitted, in the presence of several witnesses, that he had testified falsely at that trial. One witness testified he did so then state, while he and another witness, a relative of his, testified he did not. His testimony at the two trials seems to have been substantially the same as to all material facts. It was for the jury to determine whether the witness had made the contradictory statements; whether he had been impeached and on the whole evidence whether appellee had proved his case by a preponderance of the evidence or not. The jury believed the witnesses for appellee and disbelieved the witness of appellants, and we think the finding is amply supported by the evidence.

After the motion of appellánts for a peremptory instruction was denied, they made a motion to exclude all the evidence on the ground of variance, which motion was also denied. The variance claimed was that in the first count of the declaration it was charged that it was the duty of appellants to manage the machinery connected with the iron hall with reasonable care for the safety of the employees; that they failed in that duty, and that the ball was inadvertently precipitated from its suspension; that the additional count charged that the foreman so negligently managed and handled the derrick and the rope used in connection with it that the ball became detached and fell and struck appellee; that the proof offered by appellee tended to show that after the foreman had directed appellee to assist in removing scrap iron from the ball the foreman whipped the horse, causing him to start up, resulting in the trip rope catching in the scrap iron and throwing off the trip and .the falling of the ball. The mere statement of the contention shows its fallacy. Whatever may be said as to the first count, the evidence that the foreman, after placing appellee at work about the iron ball, whipped the horse and caused him to start up, while the rope was ■caught, or in a position where it could or would be likely to catch, in the scrap iron and release the ball, so it would fall on appellee, is certainly evidence tending to support the charge in the additional count that the foreman so negligently managed and handled the derrick and the rope used in connection therewith that the ball became detached and fell upon appellee. In order to support the charge of negligently “handling” the derrick and rope attached to it, it is not necessary .that the evidence should show the actual manual manipulation of the derrick or rope by the foreman. If the foreman, either with his own hand or by an order to a servant or by starting the horse either with a whip or by word of mouth, put the machinery in motion in a way to render it dangerous to appellee in the position in which he had been placed at work by the foreman, he was guilty of “negligently handling” the derrick, and if he started the ball upward by such means, while the trip rope was caught, or in a position where it was likely to cause the ball to be released and fall, it was quite as much a negligent handling of the rope as if he had taken it in his hands and had carelessly pulled it when appellee was in a place of danger. The motion of appellants to exclude the evidence of appellee for variance was properly denied.

Appellants contend that appellee is not entitled to recover under the original count, because there is no charge in it of any specific negligence on the part of appellants; no charge that appellee’s duties required him to be where he was injured; that he was rightfully there or that appellants knew he was where the operation of the derrick would be likely to injure him, or that he did not have equal opportunity with appellants to know of the danger, and that he is not entitled to recover under the additional count, because it sets up an entirely new cause of action, and was filed after the statute of limitations had run against the cause of action stated in it, and because it contains no averment that appellee did not have equal opportunities with appellants for knowing the dangers arising out of the manner in which the work was done at the time of the accident. The acts of negligence charged against appellants in the additional count were affirmative acts of the foreman, performed by him concurrently with the injury. It is not charged that the place or the appliance was inherently dangerous, but that the manner of the operation was negligent and that such negligent operation caused the injury. The count also contains the averment, in substance, that appellee did not know and could not by the exercise of ordinary care have known that these acts of negligence were to be performed by the foreman of appellants. In the case of Republic Iron & Steel Co. v. Lee, 227 Ill. 246, cited by appellants, the negligence complained of was in allowing a certain belt connecting certain machinery with the power plant to become and remain in a defective condition, and the declaration averred that the plaintiff knew of the defective condition of the belt, notified the defendant of it and was ordered to continue to work, which he did under the promise of defendant to repair. The proof showed he knew nothing about the defect and the court held that on that state of facts the plaintiff could not recover without averring that he did not know of the defect. That was an entirely different situation from the one here presented and that case is not in point here. We think the count in question sufficiently negatived knowledge of appellee and the opportunity of appellee to know of the impending negligent act charged to entitle him to recover. The complaint that the statute of limitations had run against the case made by this additional count, we think, is not sound. In the case of Geo. B. Swift Co. v. Gaylord, 229 Ill. 330, the Supreme Court said:

“In cases of this kind the cause of action is the act or thing done or omitted to be done by one which, confers the right upon another to sue, in other words, the act or wrong of the defendant towards the plaintiff which causes a grievance for which the law gives a remedy.”

The original count in the case at bar was not drawn by the attorneys who now represent appellee and is not a model of common-law pleading, but we think sufficiently sets out a duty to appellee, a failure to perform that duty and a consequent injury to appellee. This, we think, sets out a good cause of action. McAndrews v. Chicago, L. S. & E. R. Co., 222 Ill. 232. In other words, we think the first count shows a wrong on the part of appellants toward appellee which caused a grievance for which the law gives a remedy. The judgment in the case of Bepublic Iron & Steel Co. v. Lee, supra, was reversed and remanded, because the declaration was not sufficient to sustain the judgment. After the statute of limitations had run an amendment of the declaration was allowed, in which it was' averred that the plaintiff did not know and could not have known of the defective condition of the belt. A plea of the statute of limitations was interposed and a demurrer to it was sustained. The Supreme Court was later called upon to pass upon the correctness of that ruling and sustained the Circuit and Appellate Courts. See Lee v. Republic Iron & Steel Co., 241 Ill. 372. In passing upon the identical question here involved that court there quoted with approval from the case of Geo. B. Swift Co. v. Gaylord, supra, the language above used. This subsequent action of the Supreme Court in the Lee case is quite significant, in view of the fact that the original case is one of the cases chiefly relied on by appellants to show the insufficiency of the declaration in this case and in view of the further fact that, while the Supreme Court held, when the case was up on the sufficiency of the declaration, that it was insufficient to support a judgment, and when it was up the last time that, while it was originally insufficient to support a judgment, it was sufficient to prevent the running of the statute of limitations against a cause of action properly stated in an amendment. Without passing upon the sufficiency of the first count in this declaration to support a judgment, we are satisfied it is a sufficient statement of a good cause of action to prevent the running of the statute of limitations against the additional count. It follows that the demurrer to the plea of the statute of limitations filed to the additional count, as amended, was properly sustained.

A number of rulings of the court on giving and refusing instructions are complained of by appellants. An analysis of these instructions would extend this opinion to an unwarranted length. We have carefully examined each of these instructions and considered the contention of counsel as to the rulings of the court thereon and find no reversible error in such rulings.

Lastly, appellants insist that the judgment should be reversed, because- of the conduct of counsel for appellee in his argument. We have carefully examined all of the argument of counsel contained in the record, and we find that in several instances counsel for appellants interrupted counsel for appellee with the expressions, “If the court please I take exception to Mr. Tone’s argument,” “I take exception to that,” “to that statement I take exception,” and like expressions. It is no longer an open question of practice how counsel may take advantage of an improper argument by his adversary. He must first object, next insist upon and obtain a ruling of the court on his objection, then, if the ruling is adverse, he is entitled to an exception to the ruling.. There is no such thing known in our practice as allowing an exception to the argument of counsel. Exceptions are preserved to the action of the court, not to the action of counsel. North Chicago St. Ry. Co. v. Leonard, 167 Ill. 618; City of Salem v. Webster, 192 Ill. 369.

Appellants, having failed to pursue the well recognized and beaten path by which the improper conduct of counsel in their argument can be taken advantage of, the question, as to whether there was any such improper conduct in this case, is not considered.

Finding no reversible error the judgment of the court below is affirmed.

Judgment affirmed.