author: Mr. Presiding Justice Baume

text:
    Jacob Sturm, Appellee, v. The Consolidated Coal Company, Appellant.
    1. Master and servant—what risks not assumed. A servant is not barred of a recovery under the doctrine of assumed risk if his injury results by reason of the departure by the master from an established custom having reference to the manner of doing business in connection with the servant’s employment.
    2. Master and servant—when negligence of fellow-servant will not lar recovery. Although the negligence of a fellow-servant of the plaintiff may have contributed to his injury, still if such injury was the result in part of the negligence of the master, the plaintiff • is entitled to recover.
    3. Evidence—when proof of custom competent. The custom of doing business is competent where the proof thereof tends to show that an injury resulted from the non-observance of such custom.
    4. Damages—what appropriate in action for personal injuries. Money expended or liability incurred in seeking to effect a cure of personal injuries sustained is an appropriate element of damages to be awarded.
    Action in case for personal injuries. Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed March 30, 1910.
    Browtt, Wheeler, Browh & Hay, for appellant; Master & Sherlock, of counsel.

      Peebles & Peebles, for appellee; Edward C. Knotts, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

The plaintiff, Jacob Sturm, recovered a verdict against the Consolidated Coal Company, defendant, in the circuit court of Macoupin county for the sum of $5,000 as damages for personal injuries alleged to have been sustained by the negligence of the defendant. The plaintiff entered a remittitur of one-half of the verdict and judgment was entered against. the defendant for $2,500, from which judgment this appeal is prosecuted. The cause was submitted to the jury upon five counts of the declaration alleging common law negligence. The first, second and third counts allege that a certain wire cable operated by steam power was in use in defendant’s mine for hauling cars; that at the curves and turns in the entries in said mine the operation of the cable was controlled by crowd-rollers, being certain devices used to keep the cable in place; that it was the duty of the defendant to use reasonable care to keep a sufficient number of crowd-rollers to control the cable as it made the turn at a certain curve in the entry where plaintiff was injured, and that it was the duty of the defendant to use reasonable care to keep said crowd-rollers at said curve in a reasonably safe condition of repair so that said cable might be kept in its place. Said counts further allege the breach of said duties by the defendant and that the plaintiff while in the exercise of due care was injured by reason of such breach. The fifth and sixth counts allege in substance that the plaintiff was at work helping to relay or replace the cable in its proper place at a certain curve in one of the entries of defendant’s mine; that while plaintiff was doing such work the said cable had ceased its motion, and that it was the duty of the defendant under such circumstances, and while the plaintiff was working in close proximity to said cable, not to suddenly start the same without notice or warning to the plaintiff; that defendant violated its duty in that behalf and negligently, suddenly and violently started the said cable without giving any notice or warning whatever to plaintiff, whereby the said cable was thrown off of the crowd-rollers and the leg of the plaintiff was caught by the sudden and violent starting of said cable, and he was thereby dragged to the rib of the said entry and injured ; that at and before the time of his injury the plaintiff was in the exercise of due care for his own safety.

The evidence discloses substantially the following facts: There is operated in defendant’s mine a wire cable having a continuous length of about three miles, to which cable coal cars are attached by grips, and are thereby propelled to the place of loading, and when loaded are propelled to the mouth of the shaft. The cable runs over a drum which is placed in an engine house located about fifty feet back of the hoisting engine at the mouth of the shaft, and is operated by a separate engine. The cable runs down the shaft and out to a parting on the empty track where it circles another drum, and then comes back on the full track to the shaft bottom. The cable is operated as near the center of the tracks as possible, and while in motion is kept in place by spool-shaped iron rollers, which rollers operate horizontally where the track is approximately straight, and operate vertically where the track is curved. The latter type of rollers are called “crowd-rollers,” and are fastened to the center of the track by pins driven through the rollers into the ties of the track. The horizontal rollers are placed along the center of the track about thirty feet apart, and the erowd-rolle'rs are placed from six to twelve feet apart, depending upon the abruptness of the curve in the track. The engine which operates the cable is started and stopped by the hoisting engineer, or by the fireman, under his direction. When the cable is once started it continues in motion until a stop signal is given. The signal for starting or stopping the cable is given from the bottom of the shaft by ringing a bell seven times and the signal for slacking the cable when it becomes necessary to repair it or place it in position when it becomes displaced by being thrown or jerked out of the grooves in the rollers, is by calling up the shaft or by writing directions with chalk on the side of a car. At the time "of his injury plaintiff was between 68 and 69 years old. He had been employed in coal mines for over forty years and for twenty-two years in defendant’s mine, during eleven and one-half years of which time his particular employment was to keep • the rollers greased and clean and to keep the cable and rollers in working order. There were also employed in the mine men designated as “grippers,” whose duty it was to take charge of the cars. The cable would occasionally be forced off the rollers from various causes, and when this occurred it would be stopped and slackened, and if necessary, all of the available men in the mine, including the plaintiff, assisted in placing it in proper position upon the rollers. After the cable was stopped for any reason there was an invariable custom in the mine not to restart it until the expiration of ten minutes. On July 18,1906, the cable jumped from the crowd-rollers at a turn in the track about half a mile from the shaft, and the plaintiff hurried to the place for the purpose of assisting in putting the cable' in position. At the turn of the track in question there were usually 13 or 14 crowd-rollers, but at the time of the injury to plaintiff there were only six good rollers in place, together with five half rollers and three pins projecting from the ties without any rollers, and the evidence tends to show that the crowd-rollers at said turn of the track were insufficient to properly control the operation of the cable. Prior to the accident the plaintiff had frequently asked the pit-boss whether the rollers ordered, at his request, to replace the defective and missing rollers had arrived and the pit-boss informed him at the time of their last conversation that he had ordered them, but they did not come and he could not help it. When the plaintiff arrived at the turn of the track in question he found the cable in motion entirely off tbe rollers, and also there found Frew, the pit-boss, and three grippers, Linehart, Hiller and Anschultz, who, together with the plaintiff, placed the cable in position after it had been stopped and slacked. It was then noticed that one of the pins which had no crowd-roller upon it was. is such contact with the cable that the cable was likely to be injured or destroyed, and Frew and Linehart attempted to remove the pin by striking it on its several sides and then pulling it out' with their hands, but without success. That the plaintiff then undertook to remove the pin and was so engaged about two minutes when the cable was started and thrown off the crowd-rollers, catching the plaintiff’s left leg above his knee, carrying him over to the north or gob side of the entry and against the wall of the entry, causing the injuries complained of.

The evidence tends to show that Carl Weller, one of the grippers, told the eager that the time was up, and the eager communicated the direction to the engineer or fireman to start the cable again. The evidence further tends to show that an interval of ten minutes had not elapsed between the time when the cable was ■stopped and when it was started again.

The plaintiff testified that while he was attempting to remove the pin he occupied a stooping position, facing toward the north, with both legs outside of and on the south side of the cable; that he assumed that position because he did not want to get caught by the cable if it jumped off the rollers; that he knew if he .stood on the inside of the cable it was liable to jump off and catch him. The testimony of the witnesses Heller and Linehart tends to corroborate the testimony of the plaintiff as to his position with reference to the cable when he was attempting to remove the pin.

It is first insisted on behalf of defendant that it is physically impossible that the cable could have caught the plaintiff on the inside of his left leg and drawn him toward the gob side of the entry on the north, unless, he had his left leg on the north side of the cable when he was attempting to remove the pin, and that by placing himself in that position with reference to the-cable he was guilty of such contributory negligence as precludes a recovery. It may be conceded that the manner in which the plaintiff received his injuries would apparently indicate that when the cable was jerked from the rollers his left leg was inside or north of the cable, but under the evidence in the record we cannot so hold as an indisputable conclusion of fact. There is evidence tending to show that when the cable-is suddenly set in motion, as it was in the case at bar, it is frequently jerked from the rollers to a height of from two to three feet. The plaintiff’s left hand and' a portion of his left arm must necessarily have been, on the north or gob side of the cable when he was. attempting to remove the pin, and it is not at all improbable that when the cable suddenly left .the rollers, it caught the plaintiff on the inside of his left arm and' that a portion of his body was thereby thrown over the cable and carried to the north wall of the entry so-rapidly that plaintiff was unable to extricate himself. It clearly appears from the evidence that the circumstances attending the manner in which the injury was. occasioned transpired so rapidly as to make it impossible to apprehend the exact manner in which it occurred. The question was properly one for the jury to solve and we are unable to say that they erred in their conclusion.

It is next urged that the .plaintiff must be held to have assumed the risk by reason of his intimate acquaintance with the situation and conditions existing at the time of his injury. There wou'd be much force in this contention if the plaintiff had been injured in the performance of the work he was undertaking to do before the cable was set in motion, but he cannot be held to have assumed the risk of the danger arising from the sudden starting of the cable before the expiration of the time which under an established custom in the mine should have elapsed before such cable was started.

The fellow-servant doctrine is relied upon by the defendant to absolve it from liability. As we read the record the cable was started upon a signal given by the eager to the engineer or fireman at the mouth of the shaft upon the suggestion of Carl Weller, one of the grippers, that the time was up, but there is some confusion in the record as to whether or not one G-us Ruhrup, who was employed as a eager and cable repairer, joined in the direction to the eager to give the signal to start the cable, supposing that the customary period of ten minutes had elapsed since it was stopped. There is no pretense that either the eager or the .engineer or fireman were fellow-servants of the plaintiff and if it be conceded that Weller and Ruhrup were fellow-servants of the plaintiff, the defendant would not be absolved from liability, because the eager and the engineer and fireman must be held to have had knowledge of the general custom in the mine that when the cable was stopped it was not to be again started until at least ten minutes had elapsed. Although the negligence of a fellow-servant of the plaintiff contributed to his injury, still if such injury was caused in part by the negligence of the defendant the plaintiff is entitled to recover. Kennedy v. Swift & Co., 234 Ill 606.

It is further urged that the court erred in admitting evidence of the custom or usage in defendant’s mine that the cable was not to be started until the expiration of ten mi mites after it has been stopped. The action of the court in admitting this evidence was amply justified by the rule laid down in North Chicago St. R. R. Co. v. Irwin, 202 Ill. 345; St. Louis Nat’l. Stockyards Co. v. Godfrey, 198 Ill. 288; Kennedy v. Swift & Co., 234 Ill. 606, and Franey v. Union Stockyards Co., 235 Ill. 522.

It is further insisted that is was error to admit the testimony of plaintiff as to the amount of the bills for professional services rendered to him by his attending physicians, and bills for medicines purchased from the druggist, because such bills were given to the jury in total amounts without reference to whether the same had been incurred prior or subsequent to the bringing -of the suit. The injuries inflicted upon the person of the plaintiff were shown to be permanent, and he necessarily incurred some liability for medical services and medicines in an endeavor to alleviate his pain and suffering, not only prior to the bringing of the suit, but also subsequent thereto, and his liabilities in that respect were proper to be considered by the jury in estimating the amount of damages which he was entitled to recover. In Chicago City Ry. Co. v. Henry, 218 Ill. 92, it was held, that a plaintiff must exercise reasonable care to effect a cure and mitigate the effect of the wrongful act and is entitled to recover all legitimate expenses incurred for that purpose, and if it is proved that further expenses for a surgical operation or medical treatment or attendance will necessarily be required the jury may take that fact into account; that it is competent for a plaintiff to show by evidence the value of the expenses which he has incurred for medical and surgical services and if he would be subject to like expenses in the future it is competent to prove that fact. In the case at bar the plaintiff made no effort to prove the value of medical services and medicines which he would necessarily incur in the future but the proof was limited to the expenses already incurred for such purposes. It was not error to admit the proof as offered. Furthermore, there is no contention by defendant that the damages awarded to the plaintiff are excessive.

It is urged that the fifth instruction given at the instance of the plaintiff was erroneous in that it referred to the custom existing in the mine not to start the cable until the expiration of ten minutes after it had been stopped, and because it assumes that the defendant had knowledge of such custom. By the instruction the jury were required to believe from a preponderance of the evidence that there was such a custom of long standing. If the custom was one of long standing the defendant must- be presumed to have had notice of it, and the failure in the instruction to require actual proof of such notice could not have operated to the prejudice of the defendant. The first, second and third instructions tendered by the defendant and refused by the court were properly refused because they directed the jury to disregard certain counts of the declaration which were supported by some evidence in the case. The same may be said of the fourth and fifth instructions tendered by defendant and refused by the court. The phase of the fellow-servant rule presented by the sixth instruction offered by the defendant and refused by the court was not applicable to the facts in the case and was properly refused. By the fifth instruction given at the instance of the defendant the jury were properly instructed as to the fellow-servant rule applicable to the case. The seventh, eighth, ninth and tenth instructions offered by defendant were properly refused because they ignored the question of the custom heretofore referred to. The eleventh instruction offered at the instance of the defendant was properly refused because it precluded a recovery unless it was shown by the evidence that some servant of the defendant superior in authority to the plaintiff had .directed the starting of the cable in violation of the custom proven by the evidence. To make the defendant liable it was not necessary that some servant of the defendant superior in authority to the plaintiff should have directed the starting of the cable in violation of the custom, but a liability would be incurred if the cable was so started by any servant of the defendant who was not a fellow-servant of the plaintiff, or by the direction of a fellow-servant concurring with the negligent act of the defendant in so starting such cable.

We perceive no error in the record prejudicial to the defendant and the judgment of the circuit court will be affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Jacob Severns, Appellee, v. John Broffey, Appellant.
    1. Peesumptions—as to continuance of mental incapacity. After an inquest finding a person distracted, the presumption prevails that such distracted condition continues until rebutted by evidence showing the contrary.
    2. Evidence—admissions l>y distracted person. Admissions of a distracted person, like the admissions of infants, are not binding and' constitute no substantive proof.
    Action commenced before justice of the peace. Appeal from the County Court of Pulton county; the Hon. John D. Bbeckenbidqe, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed March 30, 1910.
    M. P. Bice, for appellant.
    Marvin T. Bobison, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is a suit originally instituted on April 13,1908, before a justice of the peace, by Jacob Severns against John Broffey to recover the amount alleged to be due on a certain promissory note bearing daté March 10, 1897, for the principal sum of $73 signed John Broffey and Mary Broffey by their marks, and bearing an endorsement of an alleged credit of $40 under date of November 8, 1902. The defendant John Broffey was adjudged a distracted person on November 16, 1903, and on November 20,1903, one A. M. Barnett was appointed his conservator and is still acting as such. From the judgment of the justice of the peace an appeal was taken to the county court of Fulton county, where A. M. Barnett entered his appearance as conservator of said Broffey to defend said action, and there filed his denial under oath of the execution of the said note by said Broffey and also his denial under oath that the alleged credit endorsed thereon was made, authorized of ratified by said Broffey. A trial of the case in the county court by the court without a jury resulted in a finding and judgment against the defendant for $88.37.

The only evidence offered by the plaintiff upon the hearing was the testimony of several witnesses as te certain statements made to them by Broffey upon the occasion when he appeared in the justice’s court, which statements were received by the trial court over the objections of the defendant, as admissions by Broffey of his liability upon the note. Oscar Freilly, the justice of the peace before whom the hearing was had, testified in substance as follows: “I showed the note to John Broffey and read it to him. I said: ‘John did you give this note, did you make this payment?’ He says: ‘Yes.’ I turned it over showing the endorsement on the back of it and says: ‘Is that right’ and he .says: ‘Yes’ and I says: ‘Then you think it would be right for me to -give Mr. Severns judgment?’ and he says: ‘Yes.’ I knew John Broffey when he was found distracted, and he is in the same condition now that he was then. I think he is just as rational now as he was then, and in the same condition then as now.” John Canper testified that he had known Broffey fifteen to eighteen years and was present at the trial before the justice of the peace; that in answer to the question as to what Broffey said after the note was read over to him Broffey said it was his note, that he had made payment on the note; that Broffey “was just as smart now as ever, I think he understood what was being said to him”; that he remembered Broffey when the latter was adjudged distracted and Broffey was about in the same condition that he was then and understood just as good as he ever did, just as good as when he was declared distracted; that he did not think Broffey was distracted then. Squire Butler testified that he had known Broffey fifteen years, had seen him now and then among other neighbors and had spoken to him; that after the justice of the peace read the note to Broffey the latter “claimed he made the payment on the note”. In answer to the question whether or not in his opinion Broffey then apparently understood what he was saying and what was being said to him the witness said: “I think Mr. Broffey knowed”. The witness further testified that the mental condition of Broffey was about the same as when he first saw him and when he was adjudged distracted; that he was peculiar in some ways. In answer to a question as to whether in his opinion Broffey was a distracted person when the hearing was had before the justice of the peace he said: “I think he was, yes,” and upon the suggestion of counsel that the witness did not understand the question the question was in substance repeated to the witness, whereupon he replied: “I don’t think he was”. The only other evidence in the case was the testimony of Barnett, the conservator of Broffey, who testified that Broffey could neither read nor write. This evidence is wholly insufficient to sustain the finding and judgment in this case.

After inquest finding a person distracted the presumption prevails that such distracted condition continues until rebutted by evidence showing the contrary. Menkins v. Lightner, 18 Ill. 282; Titcomb v. Vantyle, 84 Ill. 371. None of the witnesses called on behalf of the plaintiff assumed to testify that there had been a change in the mental condition of the defendant after inquest, but they all testified in substance that at the time the defendant made the alleged admissions, his mental condition was the same as it was when he was adjudged distracted. Clearly the witnesses could not be heard to impeach the finding of the court adjudging the defendant to be distracted, and their testimony properly considered tends to show that the defendant was in the same condition mentally when he made the alleged admissions as he was when he was adjudged a distracted person. If the defendant had testified as a witness in the case, by his answers to direct and cross-interrogatories propounded to him, he might have developed the fact that he had been restored to sanity at the time he made the alleged admissions, but no such conclusion can be drawn from the evidence in this record. Moreover, we are of opinion, that upon the evidence in this record the alleged admissions of the defendant were not binding and constituted no substantive proof of plaintiff’s case. In respect to the effect to be given admissions of infants and persons non compos mentis the same general rule is applicable. In Knights Templars Indem. Co. v. Crayton, 209 Ill. 550, it was held that infants are not bound by their mere admissions; that they can neither make them nor authorize any other person to make them for them. In Chicago City Ry. Co. v. Tuohy, 196 Ill. 410, it was said: “An admission if it is legally an admission must be made by some one legally capable of making the same.”

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

Reversed and remanded.


text:
    Charles B. Smith, Appellant, v. Anna Pearl Smith, Appellee.
    Custody of childben—how question determined. Where the parents of a child have been divorced and an application is made for a change in the decree awarding the custody of the issue of the marriage, the best interests of the child are the main consideration in determining the question involved.
    Appeal from the Circuit Court of McDonough county; the Hon. Habby M. Waggoueb, Judge, presiding. Heard in this court at the November term, 1909.
    Reversed and remanded.
    Opinion filed March 30, 1910.
    James F. Gibson and George Y. Helprioh, for appelant.
    Flack & Lawyer, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Appellant arid appellee were married in November 1897, and as the fruit of such marriage a son, Gerald Alleyne, was born in 1901. In February, 1906, appellant was granted a divorce from appellee on the ground of the latter’s adultery with John W. Price. By the decree the court found that appellee was a person wholly unfit to have the care, custody, control or education of the child and the same was awarded to appellant. The decree further provided that appellee might have the child visit her ten days in each and every year, such visits not to interfere with the child’s attendance at school, and that the child might visit the parents of each of the parties ten days of each and -every year, and longer if permission was obtained, and that there should be no interference by appellee with the care, custody and control of said child, until the further order of the court. In March, 1906, being about six weeks after her divorce from appellant, appellee was married to Price, the co-respondent in said divorce proceedings, and in August following, appellee gave birth to a son, as to the paternity of which she •admits she is in doubt.

In October, 1908, appellant remarried, and resides in Carthage, his aged parents residing with him. Appellee resides in Macomb with her husband and child. On January 25, 1909, appellee filed her petition wherein she alleges in substance that after the decree ■of divorce was entered appellant moved to Carthage, Illinois, taking their child with him, and has the custody and control of said child at said place; that upon ■several occasions thereafter she went to the home of •appellant for the purpose of seeing said child, but was not permitted to do so by the wife of appellant and by •other members of his household; that appellant has refused to permit said child to visit her at any time and has refused to permit said child to visit her parents, notwithstanding her requests at such times as would not interfere with the child’s attendance at school; that appellant and his wife are not fit persons to have the custody and control of said child and that said child is constantly neglected and does not receive proper care and education; that she has a good home in Macomb, and if she and her husband are given the •care, custody and control of said child they will properly care for and educate him. The petition prays that the original decree be modified so that the care, -custody, control and education of the child shall be awarded to appellee, or in case she is not given the absolute control of the child that she may be awarded the custody and control of the child for at least one-half of the time, without the interference of appellant. To this petition appellant filed his answer denying that the child was neglected and did not receive proper education, or that appellee was not permitted to see the child, and expressly averring the contrary and the ability of appellant to properly care for and educate said child. The answer further avers that appellee and her husband were wholly unfit persons to have the-custody of the child, and that they had threatened to take said child with them out of the jurisdiction of the court as soon as they could get possession of him, and that for fear that they would carry out said threat, appellant had refused appellee permission to take said child away from his home. The chancellor heard the-cause upon the depositions and oral testimony of witnesses and entered a decree modifying the former decree and awarding the care, custody, control and education of the child to appellee until further order of the court. The decree further provides that the said child may visit appellant ten days in each and every year and that appellant shall have the right to visit said child at the home of appellee at all reasonable-times. This appeal is prosecuted to reverse said decree.

A most careful examination and consideration of the-evidence, and of the facts and circumstances appearing-in the record, persuades us that the decree is unwarranted and must be reversed.

There is not a scintilla of evidence tending to show that appellant is an unfit person to have the custody of the child, other than the fact that when he left Macomb to reside in Carthage he was indebted to a-few persons in inconsiderable amounts, and we think this is fully accounted for, without imputing dishonesty to appellant, by the fact that he had then been in the hospital for about four weeks, unable to earn anything and was necessarily burdened with unusual expenses incident to his illness.

The evidence discloses that appellant is a laborer earning about $40 a month; that he is industrious and sober and very much attached to his child; that appellee has no property of her own, but is wholly dependent for her support upon her husband who is a kiln burner earning from $65 to $75 a month.

A decided preponderance of the evidence tends to show that the child is comfortably and neatly clothed; that he is a regular attendant at the public school and that he attends Sunday School; that he is much attached to his present home and to his father, his grandparents and his step-mother; that his stepmother is a woman of good character. What the husband of appellee will be disposed to do in the way of providing for the child is purely a matter of conjecture. Any provision he may make for the child will be a mere gratuity, as there is no legal obligation upon his part to support the child.

In all such cases the best interests of the child is the main consideration in determining the question as to his care, custody, control and education. Cohn v. Scott, 231 Ill. 556; Zimmerman v. Zimmerman, 242 Ill. 552. We are clearly of opinion that to deprive the child of the wholesome and decent influences now surrounding him in the home of appellant, and to commit him to the custody of appellee, a confessed adulteress, the wife of her former paramour, and the mother of a child whose paternity is in doubt, would be a misfortune indeed. The influences surrounding the child, as a member of the family of appellee, would most probably tend to his moral undoing, and his position in such a household would be most embarrassing and anomalous.

The record is not without evidence tending to show some substantial ground for appellant’s apprehension that appellee and her husband might attempt to get possession of the child clandestinely or by force, but we would not be disposed to disturb a finding by the chancellor to the contrary. Conceding, however, that appellant’s fears in that respect are groundless, the best interests of the child should not be jeopardized or sacrificed because appellant has refused to comply with the provisions of the original decree respecting the right of appellee to have the child ten days in each year. For his failure and refusal to obey the mandate of the original decree in that respect appellant is amenable in a proceeding for contempt to such penalty as will compel his obedience.

The decree is reversed and the cause remanded.

Reversed and remanded.


text:
    John Groh, Appellant, v. The Great Eastern Casualty and Indemnity Company of New York, Appellee.
    1. Accord and satisfaction—what does not constitute. The retention of a voucher check containing a receipt in full does not constitute an accord and satisfaction if the check is not endorsed.
    2. Variances—when objection comes too late. An objection of variance first made in the Appellate Court comes too late.
    Appeal from the County Court of Sangamon county; the Hon. G.'W. Murray, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed March 30, 1910.
    S. H. Cummins, for appellant.
    John Gr. Friedmeyeb, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

On December 6, 1906, the defendant issued to the plaintiff a policy of indemnity against loss of time from accident and illness. Clause “a” of said policy provides for indemnity to the insured at the rate of twenty dollars per month for a period not exceeding twenty-four consecutive months against total loss of time resulting directly and independently of all other causes from bodily injuries effected through external, violent and accidental means whereby the insured is ■disabled from performing every duty pertaining to any business or occupation. Clause “e” provides for indemnity at the rate of twenty dollars per month for the number of consecutive days after the first week not exceeding six consecutive months that the insured is necessarily and continuously confined within the house and therein regularly visited by a legally qualified physician by reason of illness that is contracted and begins after the policy bad been made and maintained- for sixty continuous days. Clause “g” provides that disability or loss resulting wholly or in part, directly or indirectly from sunstroke, freezing, carbuncles, boils, felons, abscesses, ulcers, blood poison or septicemia, or contact with poisonous or infectious substances shall be classified as illness, and covered only under paragraph “e” of said policy, the original cause thereof notwithstanding. On January 29, 1907, the plaintiff, a coal miner, suffered a severe injury to his left forefinger, by the falling of a piece of slate or coal thereon from the roof of the mine, whereby said finger was crushed and one of the bones thereof was broken and subsequently became necrosed. The defendant refused to pay plaintiff’s claim for total disability and the latter brought this suit on said policy of insurance and recovered a verdict and judgment against the defendant for $100.

On August 15,1907, the defendant sent to the plaintiff a check on The National Bank of Commerce in New York for $14.33, payable to the order of the plaintiff, in full and final settlement of all claims against the defendant for any injury or any illness originating prior to the date thereof, or any future effects therefrom, upon the back of which check was printed an endorsement as follows:

“Received from the Great Eastern Casualty and Indemnity Co. of New York the within amount, in full -settlement, discharge and release that I, myself, my executors, administrators, assigns or beneficiaries, for any injuries or illness originating prior to the date of this check or other future effects.
(Endorse here.)
“Paying banks will not honor this check unless endorsed as directed above.”

The plaintiff retained the check without endorsing the same, and it is urged on the behalf of the defendant, that such retention of the check by the plaintiff must, be held to have constituted an accord and satisfaction of his claim against the defendant. If the plaintiff had endorsed the check for payment upon the terms therein stipulated there would be force in defendant’s contention, but in the absence of such action by the plaintiff, the mere retention by him of said check did not constitute an accord and satisfaction.

The declaration alleges that plaintiff was totally disabled from the date of his accidental injury on January 29, 1907, until June 1, 1907, while the evidence-tends to show that plaintiff’s total disability continued until the first of August, 1907. The evidence as to-plaintiff’s total disability after June 1, 1907, was not objected to on the trial, and the question of variance in this respect cannot be raised for the first time in this court.

The evidence furthur tends to show that the physician who made an examination of plaintiff’s injuries, found indications of blood poisoning in plaintiff’s wound and it is insisted on behalf of defendant that ■ for any disability of the plaintiff occasioned by blood poisoning, he is only entitled to recover under clause “e” of the policy, which limits the amount of his indemnity to four dollars a month. This claim by the-defendant is clearly an afterthought and is without foundation, for two reasons, viz: First, because a claim for indemnity under clause “e” of the policy, as therein expressly provided, does not arise until the-policy has been maintained in continuous force for sixty days, while the claim for indemnity in this case accrued to the plaintiff within thirty days after the date of the policy; second, because the defendant procured an instruction to be given to the jury that the plaintiff was not entitled to recover anything under clause “e” of the policy.

The third instruction given to the jury at the instance of the plaintiff is not wholly free from criticism, but in view of what we have heretofore said relative to the receipt and retention by plaintiff of the check sent him by the defendant as not in itself constituting an accord and satisfaction, no harm could have resulted to the defendant by the giving of said instruction.

Whether or not the plaintiff was totally disabled as a result of his accidental injury was a question of fact for the jury, and their finding upon that issue is not against the manifest weight of the evidence.

There is no error in the record prejudicial to defendant and the judgment of the county court will be affirmed.

'Affirmed.


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    Emily V. Seymour, Appellant, v. Mutual Protective League, Appellee.
    1. Pleading—when replication confesses averments of plea. A replication which does not traverse matters of fact alleged in a plea is taken to have confessed the same.
    2. Fraternal- benefit societies—how incontestable clause construed. An incontestable clause which is.made a part of a benefit certificate should be liberally construed in favor of the beneficiaries of the insured.
    3. Fraternal benefit societies—when incontestable clause precludes defense of suicide. The language of the incontestable clause in the certificate in issue in this case as follows: “When certificates of membership shall be in force for two years they shall be incontestable for any cause except for violation of the constitution and laws of this order, or a failure to pay the assessments for the benefit and general fund as provided by the law,”—excludes the suicide of the insured as a defense to an action on such certificate.
    4. Fraternal benefit societies—when incontestable clause operative. If a certificate is issued which after two years is incontestable, a change of beneficiaries, followed by the issuance of a new certificate, does not start afresh the running of the limitation period.
    Assumpsit. Appeal from the Circuit Court of Montgomery county; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed March 30, 1910.
    Amos Miller, for appellant; O. C. Terry and T. M. Jett, of counsel.
    Harry O. Stuttle and L. V. Hill, for appellee; J. T. Burlington, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is a suit brought by Emily V. Seymour, a minor, by Flora A. Seymour, her guardian, against the Mutual Protective League, a fraternal beneficiary society organized under the laws of this state, to recover an amount alleged to be due her by the terms of a benefit certificate issued by said society to her father, Edgar B. Seymour. The declaration alleges that on September 17, 1897, the defendant delivered to Edgar B. Seymour a certificate of membership whereby it accepted said Seymour as a member of said defendant society upon the faith of the warranty, statements and representations contained in his application and statements to the local medical examiner, a copy of which was thereto attached and made a part of the contract of insurance, and whereby said defendant society agreed upon the death of said Seymour, provided he had while a member complied with its charter, constitution, laws, rules and regulations, to pay from the benefit fund the amount of one assessment not exceeding the sum of $1,000 as follows: Two hundred dollars each to the widow and four children of said Seymour. The declaration sets out such certificate in haec verba, which certificate contains other provisions not now necessary to be noticed. The declaration further alleges that said Seymour continued to be a member of defendant society and to pay all assessments therein, and was such member on May 5, 1905, when, in order to change the beneficiaries named in said benefit certificate the defendant society and said Seymour by mutual agreement took up, cancelled and surrendered said benefit certificate, and the defendant then and there issued and delivered to said Seymour in lieu thereof another benefit certificate designated as a “Five Year Natural Life Form” whereby in consideration of the statements made and warranted by said Seymour in his application- and medical examination, both of which were thereby made a part of said contract of membership, and whereby it was provided that the said Seymour while in good standing should be entitled to the privileges of said society and his beneficiaries should be entitled to participate in the benefit and reserve funds of said society to the amount of $1,000, as follows: $333.34 to Lewis W. Seymour, $333.33 to the plaintiff Emily V. Seymour and the like sum to Amos E. Seymour, all of said beneficiaries being designated in said certificate as children of said Edgar B. Seymour. This certificate is set out haec .verba and the fifth clause thereof provides in part as follows: “If a member holding this certificate * * * should die * * * by suicide, whether sane or insane, intentional or unintentional, except it be committed while the member is under treatment for insanity, * * * or if any of the statements or declarations in the application for membership and upon the faith of which this certificate was issued shall be found in any respect untrue, this certificate shall be null and void and of no effect provided that in all such cases the amount of money contributed to the benefit fund by such member shall be returned, and shall be paid to the beneficiary out of such fund in lieu of the benefit.” The declaration further alleges that said Edgar B. Seymour continued to be a member of said defendant society and to pay all assessments and dues levied or assessed against .him until January 1, 1907, when he died and that proofs of his death were made and received by the defendant on December 7, 1907; that by reason of the premises the defendant became liable to pay to the plaintiff $333.33, but has not paid the same. To this declaration the defendant filed its plea of the general issue, except as to the sum of $18.65 with interest thereon. The defendant also filed its several special pleas, as follows: First, that the said sum of $18.65 and interest thereon amounting to $1.20, together with the costs of the suit amounting to $7.05, it is ready and willing to pay to the plaintiff and brings the same into court, said $18.65 being one-third of the sum of money contributed by said Seymour to the benefit fund of said defendant; that said Seymour agreed and states in his application that the defendant should not be responsible under the contract if he should “die by suicide whether sane or insane, except it be committed in delirium resulting from illness, or while the member is under treatment for insanity or has been judicially declared to be insane, but all money contributed to the benefit fund of the defendant by such member shall be paid to the beneficiary hereunder;” that the said Seymour committed suicide on January 1, 1907, and for the reason aforesaid the plaintiff should not recover except the sum so tendered. Second, that relying upon the said agreement in said application mentioned the defendant issued to said Seymour a certain benefit certificate, which on April 26, 1905, said Seymour by his written endorsement thereon surrendered to defendant and requested a new certificate to be issued to him in lieu thereof; that in compliance with such request the defendant on May 1, 1905, issued to said Seymour •a certificate which was in full force at the time of his •death and was the only certificate authorized to be issued. The plea further sets forth in haec verba clause five heretofore mentioned, of said certificate, and further avers that notwithstanding the provisions of said certificate said Seymour on January 1, 1907, committed suicide, and prays judgment if the plaintiff ought to maintain her action for a greater sum than the amount tendered. Other special pleas filed by the defendant are the same in substance as those mentioned. To the plea of the general issue the plaintiff filed her replication accepting the amount tendered and as to the residue claimed put herself upon the country, and to the several special pleas the plaintiff replied accepting the amount tendered and averring that she ought not to be barred of her action for the residue claimed by her, from anything stated in the pleas, because at the time the said Seymour became a member of the defendant society the constitution and laws of said society then in force and which were in force thence continuously until his death, provided, that “when certificates of membership shall be in force for two years they shall be incontestable for any cause except for violation of the constitution and laws of this order, or a failure to pay the assessments for the benefit and general fund as provided by the law.” A general and special demurrer interposed by defendant to said last replication was sustained by the court, and the plaintiff having elected to abide her said replication, judgment was entered in her favor against the •defendant for $26.90, being the amount tendered. To reverse such judgment the plaintiff prosecutes this appeal.

In support of the action of the court in sustaining the demurrer to plaintiff’s replication to the special pleas, it is urged by defendant that the replication contravenes an established rule of pleading, in that, as it purports to be by way of confession and avoidance it does not confess the averment in defendant’s pleas that the insured committed suicide. The replication necessarily imported a confession of the averment of fact in the plea that the insured committed suicide, and was not, therefore, subject to the objection urged. In Waggeman v. Lombard, 56 Ill. 42, it is said, that “every pleading is taken to confess such traversable matter of fact alleged on the other side as it does not traverse.”

The tender by the defendant to the plaintiff, as severally pleaded by the' defendant, was not in full settlement of plaintiff’s claim, but only as part and parcel of said claim, and the acceptance of such tender by the plaintiff was by her replication expressly limited to a satisfaction in part only of the amount claimed.

It is insisted by the defendant that the provision in its constitution and laws whereby certificates of membership in force for two years should be incontestable, for any cause except fraud, etc., as set forth in the replication to the special pleas, has no application, because it tendered to the plaintiff her share of the amount of money contributed by the insured to the benefit fund, which amount, by the express terms of the policy was all that plaintiff was entitled to receive upon the death of said insured by suicide, and that defendant is not, therefore, contesting the benefit certificate, bnt is offering and seeking to, comply with its ' terms and provisions. The tender or payment to the plaintiff of her proportionate share of the amount paid by the insured to the benefit fund of the defendant society cannot be held to have constituted a tender or payment to the plaintiff of her share, or as any part of the amount of insurance upon thó life of the insured for which the benefit certificate was issued. The incontestable clause which is made a part of the benefit certificate issued by the defendant society should he liberally construed in favor of the beneficiaries of the insured, and must be held to relate to the-claim of the beneficiaries to recover the amount of insurance for which the benefit certificate is issued, unless by the express terms of the benefit certificate the-act of suicide by the insured is excepted from the operation of such incontestable clause.

It is further insisted by defendant that conceding the act of suicide by the insured is excepted from the operation of the incontestable clause, such incontestable clause is inoperative in this case because the benefit certificate upon which a recovery is sought was-issued to the insured within two years prior to his death. The insured became a member of the defendant society in 1897, when a benefit certificate for $1,000 wherein Lewis W., Vernon E., and Amos E. Seymour were named as beneficiaries, was issued to him, and he was thereby granted the privilege upon the surrender and cancellation of said certificate at any time thereafter, while he was a member in good standing, to change the beneficiaries named therein by a new certificate to be issued to him in lieu thereof. The certificate here involved is the one which was issued to him on May 1, 1905, upon his application to the defendant society requesting a change of beneficiaries. Both certificates were issued to the insured in consequence of his membership in defendant society and the application and medical examination referred torn the last certificate and made a part thereof, and which together with such certificate, formed the contract of insurance are the same application and medical examination upon which the first certificate was issued. The relation of the insured to the defendant society was not in any manner changed by the issuance to him of the new certificate and such new certificate should be held to be merely the continuance of the relation of insurer and insured which was entered into in 1897. The constitution and laws in force in 1897 which contained the incontestable clause as set forth in the replication together with the application, medical examination and certificate constituted the entire -contract of insurance, and such incontestable clause insofar as it is operative must be held to apply to the certificate in suit as of the date of the first certificate. The manifest purpose of the incontestable clause was to prevent the perpetration of a premeditated fraud -on the defendant society by the insured, the probability of the consummation of which was considered by the defendant society would terminate within two years after the date of the issuance of the first certificate. As the insured had held a certificate in defendant society for eight years, when the certificate in suit was issued, in pursuance of a theretofore existing privilege to change his beneficiaries and without any other or further application or medical examination, it seems clear that the purpose of the incontestable clause did not exist when such certificate was issued.

The language of the incontestable clause is as follows: “When certificates of membership shall be in force two years, they shall be incontestable for any cause except fraud, violation of the constitution and laws of the order, or a failure to pay the assessments for the benefit and general fund as provided by the law,” excludes the suicide of the insured as a defense to an action on the certificate, and there is no provision in the contract of insurance here involved which admits such defense notwithstanding the incontestable clause. Royal Circle v. Achterrath, 204 Great Eastern Casualty and Indemnity Co. 549; Mut. Pro. League v. McKee, 122 Great Eastern Casualty and Indemnity Co. App. 376.

The trial court erred in sustaining the demurrer to the plaintiff’s replication and the judgment will be reversed and the cause remanded.

Reversed and■ remanded.


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    Charles W. Piatt, Executor, Appellee, v. Eliza Ann Trimby,, Executrix, Appellant.

      Contracts—when note representing earnest money will not sustain recovery. A note given by way of earnest money to bind a contract for the purchase of real estate is not payable in any event but only if the vendor shall upon his part comply with the terms, of the contract of bargain and sale and furnish, as provided in such contract, an abstract showing title in such vendor.
    Appeal from the Circuit Court of Piatt county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed.
    Opinion filed March 30, 1910.
    F. M. Shonkwiler and O. F. Mansfield, for appellant.
    M. R. Davidson and Reed & Reed, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

On January 30,1908, the plaintiff, Charles W. Piatt, surviving executor of the last will and testament of Clarinda Piatt, deceased, and James W. Trimby, the testator of the defendant, Eliza Ann Trimby, his executrix, entered into a contract, as follows:

“This agreement made and entered into this 30th day of January, A. D. 1908, by and between Charles W. Piatt, surviving executor of xthe estate of Clarinda. Piatt, deceased, party of the first part, and James W. Trimby, party of the second part, both of Goose Creek Township, Piatt County, Illinois.
“Witnesseth: That first party has this day sold to second party for the sum of Thirty-three Thousand Dollars a tract of land containing 247.06 acres, known as the William Piatt Homestead situated partly in Sections Nos. 25, 26, 35 & 36 in Twp. 19 4.5 E 3rd P. M. Second party agrees to pay said first party for said land the said sum of $33,000 in the maimer following, to-wit; $3,000 cash in hand, the receipt of which is hereby acknowledged, and the remaining $30,000 to be paid to said first party on March 1st, 1908, on the acceptance of second party of the deed for said land on that date. First party hereby agrees: "That he will as soon as possible furnish to second party an abstract of title to said land showing the title to said land to be free and clear of encumbrance and showing full power and authority on his part to convey the same. First party further agrees to give possession of said land to second party on receipt of the payment to be made to him on March 1, 1908, as above ■set forth. Said first party reserves all farm tools and implements, some gate lumber in the barn, the contents of the tool-shed and a wooden circular water tank at the well, all sleds, feed bunks, wagon, racks, ■etc., etc.
“It is further agreed and understood that time is the ■essence of this contract, and in case said second party fails or refuses to carry out his part of said contract in the payment of the $30,000 above mentioned at the time specified, then he shall forfeit the $3,000 paid as earnest money. All improvements to be turned over to second party on March 1, 1908, in as good condition .as they now are, inevitable wear and tear excepted.
“Witness the hands and seals of the parties hereto •on the day and date first herein written.
“Charles W. Piatt [Seal]
“First Party.
“James W. Trimby [Seal]
“Second Party.”

Concurrently with' the execution of said contract, and in lieu of the payment by Trimby to the plaintiff of the sum of $3,000 designated in said contract as •earnest money, said Trimby executed bis promissory note to the plaintiff as follows:

“Monticello, Illinois, January 30, 1908. $3,000. On March first after date for value received, we or either of us promise to pay to the order of C. W. Piatt, Ex. of the estate of Clarinda Piatt, deed., the sum of Three Thousand Dollars at the banking office of H. Y. Moore Banking and Trust Company, Monticello, Illinois, with interest at seven per cent per annum from maturity.
“And to secure the payment of said amount we hereby authorize any attorney of any court of record to appear for us in such court, in term time or vacation, at any time hereafter, and confess judgment without process, in favor of the holder of this note, for such amount as may appear to be unpáid thereon, together with costs, including fifty dollars attorneys’ fees to be entered up as a part of the costs against us, and to waive and release all errors which may intervene in any such proceeding, and consent to immediate execution upon such judgment; hereby ratifying and confirming all that said attorney may do by virtue hereof.
“Witness our hands and seals, the day and year first above written.
“W. J. Trimby [Seal] ”

March 1, 1908, was Sunday and James Trimby was then seriously ill at his home about a mile and a half from Monticello. On March 2, 1908, the plaintiff deposited with the H. Y. Moore Banking and Trust Co. a deed to J ames Trimby of the premises mentioned in the contract together with a copy of the contract, the note, and what purported to be an abstract of title to the land conveyed by the deed, and notified Trimby by mail that he had then and there so deposited said papers. James Trimby died on March 6, 1908, without having paid said note or taken any further action in the matter. Thereafter, the plaintiff filed said note " as a claim against the estate of James Trimby in the county court, where, after a hearing thereon, said claim was allowed in full. From the judgment of the county court in favor of the plaintiff on said note the defendant prayed an appeal to the circuit court, where, upon a hearing by the court without a jury, the issues were found for the plaintiff and judgment entered against the defendant for $3,226.33, to reverse which judgment this further appeal is prosecuted.

Numerous errors are assigned upon the record and argued on behalf of the defendant, but in the view we are constrained to take of the case, it will only be necessary to consider and determine one of the questions presented.

It is conceded by plaintiff that the abstract of title furnished to Trimby in his lifetime and deposited in the bank on March 2, 1908, showed no title whatever in plaintiff’s testatrix, Clarinda Piatt, to a tract of land containing 8.59 acres included within the boundaries of the tract of land containing 247.06 acres mentioned in the contract and described in the deed from plaintiff to James Trimby; and it is further■ conceded by plaintiff that the legal title to said 8.59 acre tract was not in the plaintiff’s testatrix at the time of her death, but was vested in the heirs of one W. H. Piatt, who died in 1906, having legal title to said tract. In this state of the record there can be no recovery by plaintiff in this case. By the express terms of the contract time was óf its essence, and to entitle the plaintiff to recovery it was incumbent upon him to show that he furnished to defendant’s testator within the time fixed by the contract, an abstract of title to the land therein mentioned showing the title to said land to be free and clear of encumbrance, and showing full power and authority on his part to convey the same. This the plaintiff by his own admission wholly failed to do.

The note must be held to be a constituent part of the contract, and the rights and liabilities of the parties to said contract must be held to be reciprocal. There is no force in plaintiff’s insistence that the note in question was payable in any event at its maturity, or that in case the abstract furnished to defendant’s testator at the maturity of the contract failed to comply with the requirements of the contract, plaintiff was entitled to further time in which to perfect title to the land in his testatrix, and upon proof of his ability so to do the defendant should be held liable on the note. The record discloses no evidence of any waiver by defendant’s testator of the provision of the contract requiring plaintiff to furnish such an abstract as is therein provided, or of the time within which such abstract should be furnished. To hold that the note was payable in any event at its maturity would deprive the contract of the necessary element of mutuality, and to hold that plaintiff was entitled to further time within which to furnish such an abstract of title as is required, by the contract, would contravene the rule that the sufficiency of the abstract of title is to be determined as of the date fixed by the contract and not at some time subsequent thereto. Smith v. Hunter, 241 Ill. 514.

The judgment of the circuit court will be reversed, but the cause will not be remanded.

Reversed.


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    The People of the State of Illinois, Appellee, v. Henry Torson, Appellant.
    Criminal law—when imposition of fine unauthorised hy court. Upon the trial of a criminal case in the circuit court on appeal from a justice of the peace, where the jury finds the defendant guilty they are required to fix the amount of the fine, and the court is without authority so to do.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Christian county; the Hon. A. M. Rose, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed March 30, 1910.
    Hogah & Wallace, for appellant.

      No appearance for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

On a trial before a justice of the peace the defendant was found guilty by a jury of unlawfully keeping open a tippling house, or other place where liquor was-sold or given away, on the first day of the week, commonly called Sunday, contrary to the form of the statute, etc., and his fine was fixed by the jury at' $30. From the judgment entered upon such verdict defendant prayed an appeal to the circuit court where upon a trial by jury he was found guilty in manner and form as charged in the complaint, and thereafter the defendant was sentenced by the court to pay a fine of $25, together with the costs of prosecution. Defendant prosecutes a further appeal to this court. No brief has been filed by the prosecution.

Waiving all other questions in the case, which questions we do not deem it necessary to discuss, the judgment must be reversed because of the action of - the trial court in refusing to permit the jury to fix the fine, and in fixing the fine upon the verdict, finding the defendant guilty. Upon a trial of a criminal case in the circuit court on appeal from a justice of the peace, where the jury finds the defendant guilty they are required to fix the amount of the fine, and the court is without authority so to do. Rev. Stat. 1908, chap. 79, par. 174; Summers v. The People, 29 Ill. App. 170; Holland v. The People, 132 Ill. App. 449.

The judgment is reversed and the cause remanded.

jReversed and remanded.


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    Gertrude G. Lorenson, Plaintiff in Error, v. John H. Lorenson. Defendant in Error.
    1. Evidence—what competent upon question of adultery. Letters written by an alleged paramour are not competent against a person charged with adultery but letters written by the person so charged to such paramour, showing an affectionate disposition toward him, are competent.
    2. Divobce—what essential to establish adultery. It is not necessary to prove the direct fact of adultery and in almost every case the fact is to be inferred from circumstances but the circumstances must be such as naturally to lead the mind to a belief of the fact by fair inference, as a necessary conclusion.
    Divorce. Error to the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the November term, 1909.
    Reversed and remanded.
    Opinion filed March 30, 1910.
    Redmon & Hogan, for plaintiff in error.
    Henry I. Green, for defendant in error; Lb Forges & Vail and Mills Brothers, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

On September 14, 1908, plaintiff in error filed her bill for divorce against defendant in error alleging extreme and repeated cruelty. The- defendant in error filed his answer denying the charges of cruelty, and also filed his cross-bill for a divorce from plaintiff in error, wherein he charged plaintiff in error with adultery with one Fred Aldred on divers times and occasions and especially in October, 19C5, and with divers other lewd men whose names were unknown to said defendant in error. Plaintiff in error answered the cross-bill denying the charges of adultery, and upon the filing of replications the issues were submitted to a jury, who returned a verdict finding plaintiff in error guilty of adultery and finding that defendant in error was not guilty of extreme and repeated cruelty. The chancellor entered a decree dismissing the original bill for want of equity, divorcing the parties for the adultery of plaintiff in error, and awarding the custody of their infant daughter to defendant in error.

It is urged that the verdict of the jury finding plaintiff in error guilty of adultery as alleged in the cross-bill is not warranted by the evidence and that such offense, if shown, was condoned, and a very careful examination and consideration of the evidence as it appears in the record compels us. to the conclusion that this assignment of error must be sustained. The evidence offered by the defendant in error in support of the allegations of the cross-bill considered most favorably in his behalf, is substantially as follows: Defendant in error testified that in October, 1905, he made a business trip to the state of Wyoming leaving plaintiff in error at his home with their daughter, then a child five years of age, Leslie Chapman, a young woman and member of the family, and Fred Aldred, a farm hand; that upon his return to his home after an absence of three weeks, the plaintiff in error was manifestly indifferent toward him and was frequently in tears; that in reply to his inquiry as to the cause of her indifference and tears plaintiff in error told him that was her secret, and that subsequently she told him that her secret was her love for Aldred; that he then asked Aldred if he (Aldred) loved plaintiff in error and Aldred replied that he did; and he then declared his intention to take the child and leave the house, and plaintiff in error told him not to go; that he said he could not stay • if Aldred did, and Aldred said, “You have got to stop if I have to shoot;” that Aldred then left; that as Aldred was leaving plaintiff in error said “Good bye, Fred, ’’ and Aldred said, “How about that, ’’ and plaintiff in' error replied, “You know; ’’ that upon one occasion shortly after his return home when he and plaintiff in error were going to a box social, he, at her request, tool? Aldred also, and the three rode in a single buggy; that on a subsequent occasion in 1905, after Aldred, had left his home, he met Aldred in a saloon in Champaign and Aldred signed a paper wherein he stated that he had hugged and kissed plaintiff in error during the month of October, while defendant in error was absent in Wyoming; that he subsequently showed the paper to plaintiff in error, who obtained possession of the paper and destroyed it. Jess Hall, who was employed by defendant in error as a farm hand after Aldred left, testified that in a conversation with plaintiff in error, she said in substance that if he was Fred Aldred she could love him. Sarah E. Caldwell testified that upon one occasion when she found plaintiff in error in tears she asked what the trouble was and plaintiff in error replied that she and her husband had had trouble over Fred Aldred; that she told plaintiff in error that the latter ought to get rid of him, and plaintiff in error replied, “I love him and I don’t care who knows it.” Ward Rudicil testified that plaintiff in error in speaking of Aldred said she liked him. Roy Mallow testified that plaintiff in error told him that she had no more use for her husband than a rabbit; that “Jay (meaning her husband) treated her all right, but she loved another fellow.”

Defendant in error has assigned cross-error upon the refusal of the trial court to admit in evidence a packagé of letters written by Aldred to plaintiff in error, which letters were found by defendant in error in the attic of his house. These letters come within the rule announced in Razor v. Razor, 149 Ill. 621, and were properly excluded. Cross-error is also assigned upon the ruling of the trial court in refusing to admit in evidence a letter written by plaintiff in error and addressed to Aldred, which letter was intercepted by defendant in error before it was finished and signed. This cross-error is well assigned. The letter was dearly competent as an admission by plaintiff in error of her disposition toward her alleged paramour and her relations with him. ' In this letter plaintiff in error addressed Aldred as “My Dearest Fred,” and says,, in part: “I’m not going to bother with this mail process much longer if Fred’s heart is in the same place. I have got to wash tomorrow so some of my time will be occupied before mail time. If I was only in F. E. today I wouldn’t care whether it was raining or sunshine for it would be all sunshine to me if it was the darkest day on earth. Fred, I get so discouraged to think we cant be together I dont see why things have to be this way. If there is really a just God I dont see-why he dont make things more pleasant.”

It is uncontroverted that subsequent to October, 1905, no opportunity existed for any adulterous relations between plaintiff in error and Aldred, and it is conceded that the only act or acts of adultery, if any, were committed during the month of October, 1905. There is not a scintilla of evidence in the record directly tending to show a disposition on the part of plaintiff in error and Aldred to commit adultery, or, if such disposition existed, that said parties ever had' an opportunity to commit the act of adultery. The mere fact that the affections of plaintiff in error had' been alienated, and that plaintiff in error admitted her affection for Aldred, is not sufficient to convict plaintiff in error of the serious charge of adultery with Aldred. True, in such cases, it is not necessary to prove the-direct fact of adultery, and in almost every case the-fact is to be inferred from circumstances, but the circumstances must be such as to naturally lead the mind to a belief of the fact by fair inference, as a necessary-conclusion. Stiles v. Stiles, 167 Ill. 576; Carter v. Carter, 152 Ill. 434; Bast v. Bast, 82 Ill. 584; Cooke v. Cooke, 152 Ill. 286; Zimmerman v. Zimmerman, 242 Ill. 552. The brief for defendant in error states the rule-relied upon to support the verdict and decree, as follows: “If the facts proven show a state of circumstances where the party charged with adultery has shown a marked affection and predilection for the party charged as paramour or co-respondent, and the disposition of both the parties to commit adultery, and the opportunity for the consummation of the act is proven, and all the facts and circumstances proven are such as to lead or impel the guarded discretion of d reasonable and just man to the conclusion that adultery has been committed, it is sufficient to justify a finding and verdict by the jury to that effect.” Applying the rule thus stated to the evidence adduced on behalf of defendant in error, the verdict is unwarranted.

If it be conceded that the statement made by Aldred to defendant in error in October or November, 1905, that he (Aldred) had hugged and kissed plaintiff in error while defendant in error was absent in Wyoming, constitutes any substantive proof of the existence of adulterous relations between plaintiff in error and Aldred, and there is no more significant evidence in the record tending to establish such charge than such statement, defendant in error fully condoned the alleged adultery by thereafter continuing to cohabit with plaintiff in error until March, 1908.

Several instructions given at the instance of defendant in error .are criticised as being inaccurate statements of the law bearing upon the issue of extreme and repeated cruelty under the allegations of the original bill, but we find no substantial error therein that could have operated to the prejudice' of plaintiff in error. The instructions as given state the law substantially as it is announced in Von Glahn v. Von Glahn, 46 Ill. 134. See also Youngs v. Youngs, 130 Ill. 230. Other cases supporting the doctrine announced in Von Glahn v. Von Glahn, supra, are collated in a note to Noyes v. Noyes, 120 Am. St. Rep. 517.

The 14th instruction given by the court upon its own motion, insofar as it refers to acts of adultery other than with the co-respondent Aldred as affecting the question of condonation, is not based upon any evidence in the record.

We have considered the objections urged as to other instructions given at the request of defendant in error, and' find no fault therein.

Because the verdict finding plaintiff in error guilty of adultery is not supported by the evidence, the decree is reversed and the cause remanded.

Reversed and remanded.


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    Lucius B. Bacon et al., Appellees, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Common cabbiebs—what not competent upon question of reasonable time for transportation. In order to show what was a reasonable time for a carrier to transport cattle, it is not competent to receive opinions of witnesses, as such question is one of fact to be determined by the jury upon a consideration of all the facts and circumstances adduced by the evidence in the cause.
    2. Common cabbiebs—how assent of shipper to restrictive provisions shown. The assent of a shipper to restrictive provisions contained in a shipping ticket signed by him, is a question of fact to be determined by the jury, and it is error for the court to exclude evidence which tends to show such assent.
    3. Common cabbiebs—when delay in transportation does not create liability. In the absence of a special contract with the carrier whereby such carrier agrees to deliver a shipment within a specified time, mere delay in transportation does not create a liability on the part of the carrier to respond in damages, but when the delay is prolonged beyond the time within which a like shipment is usually and customarily transported between the point of shipment and the point of delivery, the burden is cast upon the carrier to explain such delay and to show that it did not result from its negligence or the negligence of its connecting carrier.
    4. Common cabbiebs—what excuses delay in transporting. Absence of negligence excuses a carrier for delay in transporting and it is error to instruct the jury that only an act of God or the public enemy can supply such excuse.

      Action in case. Appeal from the Circuit Court of Edgar county; the Hon. J. W. Cbaig, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed March 30, 1910.
    George B. Gillespie, for appellant; L. J. Hackney, Hamlin & Gillespie and Shepherd & Trogdon, of counsel.
    H. S. Tanner and J. E. Dyas, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

The plaintiffs recovered a verdict and judgment against the defendant in the circuit court of Edgar county for $229.44, as damages for the alleged failure of defendant to carry four carloads of cattle from Bidge Farm to Chicago within a reasonable time, whereby said cattle were caused to shrink in weight, and were necessarily sold for a less price than that which prevailed in the market on the day when said cattle should have arrived in Chicago if they had been transported within a reasonable time. From such judgment the defendant prosecutes this appeal.

The cattle left Bidge Farm about nine, o’clock p. m. on October 26, 1904, and arrived in Chicago about six o’clock p. m. on October 27, and were sold on the market on the day following.

Numerous errors are assigned upon the rulings of the trial court, a consideration of which as a whole, requires a reversal of the judgment and the remandment of the cause for another trial.

The court improperly permitted the witnesses called on behalf of the plaintiffs to give their opinions as to what was a reasonable time within which to transport the cattle from Bidge Farm to Chicago. Whether or not the cattle were transported within a reasonable time was a question of fact to be determined by the jury upon a consideration of all facts and circumstances adduced by the evidence in the case. A proper element to be considered by the jury in that regard was the usual and customary time in which cattle were ordinarily transported between the points named, and the inquiry should have been thus limited. The question was not one to be determined by the mere opinion of witnesses. C. C. C. & St. L. Ry. Co. v. McNutt, 138 Ill. App. 66; Hennigh v. C. C. C. & St. L. Ry. Co., 143 Ill. App. 283.

Whether the plaintiffs had knowledge of and assented to the restrictive provisions of the shipping contract signed by them was a question of fact for the jury. The trial court in numerous instances excluded evidence which tended to show that plaintiffs had such knowledge and that they assented to such provisions, which evidence was competent to be considered by the jury upon that issue.

It is not charged in the declaration that the defendant was negligent in failing to furnish cars at Bidge Farm within a reasonable time after the cattle were delivered at the yards of the defendant, and the record discloses that the trial court so held. Notwithstanding such holding, however, the court permitted some of the witnesses called on behalf of the plaintiff to testify to •matters relating to such subject, which testimony could not have been otherwise than prejudicial to the defendant.

In the absence of a special contract with the.carrier, whereby such carrier agrees to deliver a shipment within a specified time, mere delay in transportation does not create a liability on the part of the carrier to respond in damages, but when the delay is prolonged beyond the time within which a like shipment is usually and customarily transported between the point of shipment and the point of delivery, the burden is cast upon the carrier to explain such delay, and to show that it did not result from its negligence, or the negligence of its connecting carrier, in cases where it is held responsible for the negligence of its connecting carrier. Shoot v. C. C-. C. & St. L. Ry. Co., 145 Ill. App. 532. In the case at bar the defendant offered evidence tending to show that the alleged unreasonable delay in the carriage of the cattle was without its fault and without the fault of its connecting carrier, the Chicago & Eastern Illinois B. B. Co. of Danville, Illinois, which evidence was erroneously excluded by the court.

Counsel for defendant present a somewhat lengthy argument based upon an alleged provision in the shipping contract, whereby the defendant was relieved of liability for the negligence of its connecting carrier. A careful examination of the contract discloses no such provision and the argument is, therefore, irrelevant.

By the second instruction given at the instance of the plaintiffs the jury were told that “when a common carrier for pay received cattle to be transported it must deliver them within a reasonable time at their destination, and nothing will excuse such delivery within a reasonable time except the act of God or the public enemy.” This instruction was clearly erroneous. The rule that only an act of God or the public enemy can excuse the non-delivery of goods entrusted to a common carrier for transportation is not applicable to the duty of a common carrier with reference to the time of delivery. A common carrier is bound to deliver goods without unreasonable delay, but the failure of a common carrier to deliver goods’ within a reasonable time involves a consideration of the question of negligence by the carrier, and a delay however long cannot be said to be unreasonable if the carrier can show that it was free from any negligence which contributed to such delay. Ill. Cen. R. R. Co. v. McClellan, 54 Ill. 70; Mich. Cen. R. R. Co. v. Curtis, 80 Ill. 324; Adams Ex. Co. v. Bratton, 106 Ill. App. 563; Wabash R. R. Co. v. Johnson, 114 Ill. App. 545.

The third instruction offered by defendant omitted as an element of damage the alleged decline in the .market price of cattle in Chicago from October 27 to October 28, and it would have been error to give the instruction as offered.

The second and third instructions offered by the defendant and refused by the court were properly refused because they absolved the defendant from liability for any unreasonable delay which may have been •caused by the negligence of its connecting carrier.

For the reasons indicated the judgment of the cir•cuit court will be reversed and the cause remanded.

Reversed and remanded.


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    National Candy Company, Appellant, v. Nichols Candy Company, Appellee.

      Damages—when toss of profits cannot he recovered. The loss of profits upon goods not delivered by the vendor which were pur-chased for resale, where it does not appear that a contract for such resale at a certain profit was entered into, does not constitute a proper element of damage.
    Assumpsit. Appeal from the Circuit Court of Macon county; the Hon. William; C. Johns, Judge, presiding. Heard in this court at "the May term, 1909.
    Reversed and remanded.
    Opinion filed March 30, 1910.
    Frank F. Eeed and Charles A. Williams, for appellant; D. C. Corley, of counsel.
    Buckingham & Gray, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion ■of the court.

This is a suit in assumpsit brought by the National Candy Company, a corporation, having its principal office at St. Louis, Missouri, against the Nichols Candy Company, a corporation doing business at Decatur, Illinois, to recover a balance of $719.12 alleged to be' due for merchandise sold and delivered. The defendant pleaded a set-off amounting to $1,069.20, because of the failure of the plaintiff to ship to the defendant 895 pails of candy, each pail containing about 24 pounds, the same being -part and parcel of a certain order given by the defendant to the plaintiff for 1,000' pails of candy at 15 ■ cents per pound, by reason of which failure the defendant claimed to have lost 4y2 cents per pound. Upon a trial of the cause by a jury there was a verdict and judgment in favor of the defendant upon its plea of set-off against plaintiff, for $140.08, to reverse which judgment the plaintiff prosecutes this appeal.

The plaintiff operated several candy factories and the indebtedness sued for accrued by reason of. the purchase by the defendant from the plaintiff of candy from several of said factories. The defendant does not deny its indebtedness to the plaintiff upon the account as stated. On July 18,1907, one L. R. Dougherty, a traveling salesman for the factory of the plaintiff located at Indianapolis, Indiana, procured from the defendant an order, as follows:

“Date—7-18-07
National Candy Company
Ship to Nichols Candy Company,
At Decatur, Blinois,
How ship, C H & D
When, To be ordered out by Dec. 15, 1907.
1,000 pail Chocolate cream peanut—15c.
With privilege of 500 more pails at same price.”

o This order was accepted by the plaintiff and by subsequent correspondence the dates of shipment, and the number of pails to be shipped on such dates, was. agreed upon, as follows: 150 pails on September 15, and a like number of pails on September 30, October 15, October 30, November 15, November 30, and 100' pails on December 10, 1907. On some day in September, 1907, prior to September 12, the defendant wrote the plaintiff requesting an immediate shipment of the first lot of 150 pails, and on September 12, following, the plaintiff wrote to the defendant stating that a shipment of 50 pails could be made at once, and also made inquiry with reference to the manner in which the pails should be labeled. The plaintiff then made shipments to the defendant as follows: 50 pails about September 16, 20 pails on October 12, 15 pails the latter part of October and 20 pails about November 23, which were all the shipments made upon the order heretofore mentioned.

The terms of payment under the order as made and accepted were not indicated therein, and the defendant was permitted over the objection of the plaintiff- to introduce evidence of an alleged custom or usage which had theretofore existed between the plaintiff and other concerns from which it had purchased candy, whereby sales were made upon a credit of 30 days, with an allowance of 2 per cent for cash within ten days. The-evidence was insufficient to establish such a general custom and usage with reference to the particular trade or business involved, as to authorize the jury in finding that the order in question was made and accepted with reference thereto so as to make such custom or usage a part of the contract. Any further discussion of this question in its application to the case at bar is rendered unnecessary by the fact that it was admitted by one of the principal officers of the plaintiff company that the order for the candy was accepted upon the terms claimed by the defendant, and that the shipments which were made upon such order were billed upon such terms. The error, therefore, in admitting evidence of the existence of a custom and usage as offered by the defendant, was harmless.

There is evidence offered on behalf of the plaintiff which tends to show-that the manager of the factory at Indianapolis, by reason of an alleged rumor coming to Mm prior to the making of the first shipment, to the effect that defendant’s solvency was questionable, notified plaintiff’s credit man that defendant’s credit should be limited to $150, and that shipments of only 10 or 15 pails should be made at a time, in an endeavor to hold defendant’s account down. The evidence falls far short of establishing defendant’s insolvency, but it clearly appears that during the period following the times when shipments of candy were to be made by the plaintiff to the defendant, the defendant was hard pressed to raise money with which to meet its obligations, and that it sought extensions of time upon its indebtedness to the plaintiff. The situation in this regard was similar to that which confronted business enterprises generally in the Fall of 1907. There is no evidence tending to show that the plaintiff communicated its apprehensions relative to defendant’s solvency to the defendant, other than what may be implied from the evidence of Frank Burrous, who testified that upon the occasion in October, 1907, when he went to the Indianapolis factory as the buyer for the defendant, he asked plaintiff’s manager why defendant’s order for candy had not been shipped, and was told that defendant had been limited to a credit of $250.

The case was tried by the defendant in the court below upon the theory that it was entitled to recover as its damages the difference between the contract price of the candy which plaintiff had failed or refused to ship to the defendant, and the market price of such candy upon its resale by the defendant, less the expense of selling the same, which expense was estimated to he from % to % of a cent per pound. There is no substantive proof in the record that the defendant had contracted for a resale of the candy at from 20 to 22 cents per pound, which was claimed as being its market value upon. a resale, nor is there in the record evidence of facts and circumstances which warrant a finding that the defendant could have sold such candy if it had had the same in stock. The mere statement by some of the witnesses called on behalf of the defendant, that the defendant could have resold all of the candy if the same had been shipped as ordered, is clearly based upon pure conjecture and there is evidence in the record which refutes the claim of the defendant in that respect. Under date of February 22, 1908, defendant wrote to the plaintiff, in part, as follows: “You know the money conditions confronting the jobber as well as we do and we will not revert to that, but when we say to you that the falling off of trade the last two months of the year left us with from ten to $15,000 of candy on hand, bought for the holiday trade, and all due and past due on January 1, you can appreciate our position.” Neither is there any substantive proof in the record that the defendant made any effort whatever to procure like candy in the open market, nor that it made any attempt, through communication with other manufacturers of candy, with a view of having like candy manufactured for its pretended trade. The testimony of some witnesses called on behalf of defendant to the effect that like candy could not be procured was their mere conclusion, and did not meet the requirements that the defendant should have exercised reasonable diligence to procure like candy for its trade.

The plaintiff must be held to have known that the defendant ordered the candy in question for the purpose of reselling the same at a profit, but this fact alone is not sufficient to authorize a recovery against the plaintiff for the amount of such anticipated profits. The loss of profits upon goods purchased for resale where it does not appear that a contract for such resale at a certain profit was entered into, does not constitute a proper element of damages and such damages are not allowable. Hill v. Parsons, 110 Ill. 107; Armeny v. Madson & Buck Co., Ill. National Candy Co. App. 621; Van Arsdale v. Rundel, 82 Ill. 63; Hagen v. Rawle, 143 Ill. App. 543. Other cases go to the extent of holding that loss of profits may not be recovered as damages unless the vendee before the purchase of the goods had a contract for their resale at a certain profit, which contract for such resale was known to the vendor. Carpenter v. First Nat. Bank, 119 Ill. 352; Lapp v. Illinois Watch Co., 104 Ill. App. 255.

It follows that the trial court erred in admitting evidence of the market value of the candy in question upon a resale of the same by the defendant, in the absence of proof that the defendant had in fact contracted for the resale of such candy.

Plaintiff assigns error upon the action of the court in giving and refusing certain instructions, but what we have heretofore said precludes the necessity of considering the errors so assigned.

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

Reversed and remanded.