author: Mr. Presiding Justice Smith Per Curiam.

text:
    Mary Dillon, Appellee, v. The National Council of the Knights and Ladies of Security, Appellant.
    Gen. No. 14,491.
    1. Fraternal benefit societies—what does not waive suspension. A member who under her certificate of membership and the self-executing by-laws of the society stood suspended at the time of her death for failure to pay an assessment when due, does not become re-instated after her death by the payment by the beneficiary of the delinquent assessment to the society’s collecting officer and the acceptance of such payment by such officer with knowledge of her death, such officer not being authorized by the by-laws, directly or indirectly, to waive the suspension. Jones v. Knights of Honor, 236 III. 113, distinguished.
    2. Fraternal benefit societies—what does not excuse prompt payment of assessments. Evidence of a custom to extend leniency with respect to the payment of assessments is immaterial upon the question of delinquency.
    3. Fraternal benefit societies—what does not waive suspension. If a member at the time of her death by virtue of the self-executing by-laws of the society stands suspended for non-payment of assessments, a waiver of such suspension does not result from requiring the beneficiary to furnish proofs of loss, where neither the certificate nor the by-laws of the society required the furnishing of such proofs.
    Baker, J., dissenting.

      Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Mabotts Kavanagh, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Rehearing denied May 4, 1909; additional opinion filed.
    Reversed.
    Opinion filed April 20, 1909.
    Statement by the Court. This action was brought by Mary Dillon, appellee, against appellant in the Superior Court upon a beneficiary certificate issued by appellant to Hanora McCaffery, the mother of Mary Dillon, appellee, in which the benefits were to be paid at death to Mary Dillon. The certificate was dated October 19, 1897. The declaration contains.one count and sets out the beneficiary certificate in haec verba.

    The defendant, appellant here, filed the general issue and four special pleas, which were afterwards withdrawn upon a stipulation that all defenses might be made under the general issue the same as if specially pleaded.
    On the trial the court at the close of all the evidence instructed the jury to find for the plaintiff, and to assess the plaintiff’s damages at the sum of $1,309.40. The jury returned a verdict in accordance with the instruction. After denying motions for new trial and in arrest of judgment the court entered judgment on the verdict.
    The defendant, appellant, is a fraternal beneficiary society with headquarters at Topeka, Kansas. Among its lodges, called in its by-laws and printed matter subordinate councils, was one known as Illinois Council No. 420, located in Chicago. On October 4, 1897, Hanora McCaffery, appellee’s mother, made application to Illinois Council No. 420 and a certificate of $1,000 was issued to her October 19,1897. In the beneficiary certificate it is provided that the certificate “is issued upon the express condition that the said member shall in every particular while a member of the order comply with all the laws, rules and regulations thereof, and shall at her death be a member in good standing of said order.”

      The 1896 by-laws of the society, in force when the certificate was issued, provided that on “the receipt of the beneficiary certificate one assessment shall be paid by the member to the financial secretary of the council, and on or before the 28th day of each succeeding month, the member shall pay without notice the sum of one assessment to the financial secretary. * * * Upon the failure to pay such assessment on or before the 28th day of the month, the beneficiary certificate of such member shall stand suspended, without notice, and all rights thereunder shall be forfeited. No rights under said certificate shall be restored until it has been duly reinstated by compliance by the member with the laws of reinstatement. ’ ’
    In June 1898, the by-laws of appellant were amended, the amended by-laws going into force July 1, 1898. They were substantially the same as the by-laws of 1896, which were in force when the certificate was issued. The time within which the assessment for each month should be paid was extended from the 28th day of each month to the last day of each month. The amended by-laws bearing upon the questions involved are as follows :
    “Before delivering the Beneficiary Certificate, upon the initiation of a member, the Financial Secretary of the Council shall collect one advance assessment from the member, and, thereafter, on or before the last day of each succeeding month, the member shall, without notice, pay the sum of one assessment to the Financial Secretary. * * * The certificate of each member who has not paid such assessment on or before the last day of the month shall, by the fact of such nonpayment, stand suspended without notice, and no action on the part of the Council or any officer thereof shall be required as essentia] to such suspension, and all rights under said certificate shall be forfeited. No right under such certificate shall be restored until it has been duly reinstated by compliance by the member with the Laws of the Order with reference to reinstatement.

      “On or before the 10th of each month the amount of one assessment for each member of the Subordinate Council who is in good standing,' together with, such arrearages as may have been paid on suspended certificates, which have been reinstated since the last preceding return, shall be forwarded by the Financial Secretary of the Subordinate Council to the National Secretary. * * *
    “Any beneficiary member suspended by reason of non-payment of assessments may be reinstated upon the following conditions and none other, viz.: If living and in as good health as when suspended, and if not engaged in any occupation prohibited by the Laws of the Order, at any time within sixty days from such suspension, by payment to the Financial Secretary of the Council of all arrearages on account of assessments and dues, including the pending assessment and dues. * * *
    “Any member whose Beneficiary Certificate has been suspended for a term exceeding sixty days and less than ninety days, must be re-examined by the medical examiner of the Council as upon the original application for a Beneficiary Certificate, and approved by the Medical Director. He may then be reinstated as provided in Section 1 of this Article.
    “Any member whose Beneficiary Certificate has been suspended for a period of over ninety days shall stand suspended from all benefits and privileges of the Order, and he shall not again be admitted to membership except as upon original application.
    “Any member suspended or expelled from the Order for any cause whatever forfeits all claims to the beneficiary fund during said suspension or expulsion.
    ^“All beneficiary funds collected for reinstatement of suspended members shall be forwarded with the first report thereafter to the National Secretary, by the Financial Secretary of the Council, together with a report of such reinstatement.
    “A Subordinate Council is the agent of its members in making applications for membership; admission of members; the collection and transmission of all assessments to the National Council; the serving of all notices are required by the Laws of the Order, whether they have been adopted by custom of the Subordinate Council or of its officers. The National Council shall not be liable for any negligence in any of these matters nor be bound by any irregularity, neglect* or illegal action by a Subordinate Council or by any of its officers.
    “The National Council shall not be liable for the illegal receipt of arrears of Beneficiary or Reserve Fund assessments from suspended members or from those in arrears, and the receiving of any such arrears and receipting therefor by any officer of a Subordinate Council, and the reinstatement of any suspended member, except as provided in the Laws of the Order, shall not be binding on the National Council.”
    It appears that the monthly assessments of Hanora McCaffery amounted to $1.90. Of this amount $1.65 belonged to the National Council beneficiary reserve and expense funds and should be forwarded to the National Council at Topeka, Kansas, in the monthly returns required to be sent in each month of the previous month’s collections. The amount of twenty-five cents was subordinate council dues, and was placed in the subordinate council’s general fund for the payment of its local expenses.
    It is not controverted in the record that at the time of her death Hanora McCaffery had not paid the February 1900 assessment, amounting to $1.90, and the March 1900 assessment of the same amount. On March 17,1900, the day after the death of Hanora McCaffery, the beneficiary, Mary Dillon, appellee, went to the home of Cornelius Ryan, the financial secretary of the subordinate council, and left the amount of the February and March assessments with the daughter of Mr. Ryan. Upon Mr. Ryan’s return to his home in the evening of that day his daughter gave him the amount left with her. He was at that time informed of the death of Hanora McCaffery.
    A few days thereafter Mr. Ryan informed J. M. Bair, the deputy of appellant, having charge of certain branches of the work of appellant in Chicago, that he had received the delinquent assessment in question after the death of Hanora McCaffery, and Bair thereupon immediately notified the national secretary of the facts.
    It appears from the testimony of Mary Dillon, appellee, that Bair requested her to get a certificate of death of Hanora McCaffery from the City Hall, so that he might send it to the head office at Topeka, Kansas. Mrs. Dillon expended fifty cents for the certificate. This was the only thing she had to do in making proof of death. She was also asked by Bair to bring in the receipt book and policy of her deceased mother, for the purpose of inspection apparently, as she was told that she could keep them if she would bring them in.
    There is some evidence tending to show that Ryan forwarded the February and March assessments to the National Council, and that it retained the same until after this suit was brought. Shortly after the suit was commenced these two assessments, together with costs, were tendered back to the plaintiff.
    A. W. Fulton, for appellant.
    Edmund S. Cummings, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The first question to be considered is whether Hanora McCaffery, who under the by-laws of appellant and her certificate of membership, stood suspended at the time of her death for failure to pay an assessment when due, could be reinstated after her death by a payment of the delinquent assessment to appellant’s collecting officer by the 'beneficiary in the membership certificate, and the acceptance of such payment by such officer, with knowledge of her death.

By the terms of the beneficiary certificate Mrs. Mc-Caffery agreed to comply with the rules, laws and requirements of the order and should be a member in good standing at her death.

It appears from the record that the assessments made by the National Council upon the members of the society were not levied at such intervals as the officers might deem necessary and direct, or as the mortality experience of the society from time to time might require; but the laws of the society, which were made a part of the contract, provided that there should he an assessment each month, which became due on the first day of the month, and payable on or before the last day of the month, without notice. The substance of the by-laws and their legal effect are stated in National Council v. Dillon, 212 Ill. 320, this case being before that court on an appeal from the first trial.

There is some conflict in the evidence as to whether Cornelius Eyan, financial secretary, remitted to appellant the $3.80 which was paid to him by appellee the day after the death of Hanora McCaffery. His testimony on the first trial, as appears from the opinion of the Supreme Court at page 325, was to the effect that he did not know whether he sent the money to appellant or not. For some reason not explained in the record his memory was much better on this point on the trial now before us. He states positively in this record that he sent the money to headquarters. It appears, however, from his testimony, we think, that he was testifying more to a general conclusion than to a definite fact which he distinctly remembered. His testimony and his reports to the National Council show that he kept his records in such shape that neither he nor the . officers of the National Council knew what particular payments he remitted. In his report for December, 1899, he remitted for two members carrying $1,000 at the rate of $1.65, but the report does not inform the officers of appellant for whom this remittance was made. In the next Janu-‘ ary, 1900, report Eyan remitted for five members holding $1,000 certificates at the rate of $1.65 (Hanora McCaffery’s rate), hut he does not give on the hack of his report in the proper places the names of the members for whom the remittance was made. In his reports for February and March, 1900, he reports for five members at that rate in each report, but the officers of the society could not tell from these reports for whom he was remitting. His attention was called to the matter in a letter dated at Topeka, Kansas, February 8, 1900, and a request made to accompany his February remittance “with a list of the members you pay for”. In this condition of Ryan’s reports the National Council or its officers could not know whether Ryan had received the February and March assessments from or on account of Hanora McCaffery, or whether he had remitted the amount thereof to the National Council. The evidence shows that Ryan informed Bair, a deputy for the National Council, that Ryan’s daughter had received the February and March assessments after Mrs. McCaffery’s death, and that Bair notified the National Secretary of that fact. But we do not think that the evidence shows that Ryan remitted these assessments to the National Council, or if he did make such remittance the National Council or its officers had notice or knowledge of it.

Whether, however, the fact of the receipt of the money by Ryan, and his remittance of it to the National Council, as contended by appellee, is material to be considered, depends upon the view taken as to the legal effect of such receipt of the money upon the rights of the parties. In our opinion the receipt of the money by Ryan after the death of Mrs. McCaffery was not within his authority as financial secretary or collector under the contract and the rules of the order, and such receipt of the money did not affect the rights of the parties. In considering the contention of the plaintiff that the condition of the certificate was waived by the defendant, appellant, by receiving and retaining the money, the Supreme Court in National Council v. Dillon, supra, said at page 325: “When this payment was made to the financial secretary of the local council he knew that Hanora McCaffery was dead, but it is conceded that the rights of the parties could not be affected by the payment to him. It is admitted that he had no right to set aside the rules of the order, and if, from ignorance or any other reason, he received the money, it would not operate to reinstate the member or waive the conditions of the certificate. Under the laws a suspended member could only be reinstated if living, and upon conditions therein specified and upon a majority vote of the local council. There was not even any action of the local council in the matter”. See also National Council etc. v. Burch, 126 Ill. App. 15; Miller v. Union Central Life Ins. Co., 110 Ill. 102; Bagley v. Grand Lodge etc., 31 Ill. App. 618; Brown v. Grand Council etc., 81 Iowa 400; Borgraefe v. Knights of Honor, 22 Mo. App. 127.

In Lyon v. Royal Society of Good Fellows, 153 Mass. 83, there was involved the liability of the society on a certificate conditioned that payment should be made at death, provided the member was in good standing when he died. The member stood suspended for nonpayment of dues, and thereafter, November 1, 1888, an assessment was levied of which he had notice but did not pay within thirty days. On December 3, following, the member paid the assessment to the proper officer, but before it was forwarded to the treasurer he was notified that a medical examination was necessary to his reinstatement. On January 1, another assessment was duly levied, which on January 17, the day before he died, was paid by his wife, the beneficiary named in the certificate, together with the dues, to the financial secretary of the assembly. These payments were relied on to establish a waiver, and also an estoppel in favor of the plaintiff. The court said: “The trouble with the plaintiff’s case is, that none of the acts relied on were acts of the corporation, but they were all done by officers who had no authority to waive the express provisions of the laws”.

In Lantz v. Insurance Co., 139 Pa. St. R. 546, it appeared that the premiums falling due in May, August and November 1887, were not paid at maturity, but were paid after maturity, and accepted by the company; that the premium due on February 19, 1888, was not paid at maturity; that on March 2, 1888, a brother of the insured, who was also a policy-holder, called oh the general agent of the company in Philadelphia, and informed the latter that Simeon P Lantz, the insured, would be down on March 6th tv pay his premium, and was told that he, the agent, did not make out his monthly report until the tenth of the month, and that if the premium was paid, by the ninth it would be all right. Simeon B. Lantz was in good health on March 2nd, but was taken ill the next day and died on March 6th. The court say, at page 560: “The consequence of a default in the payment of the premium is defined in the policy itself. It declares that, if not paid on the days named and in the lifetime of the insured the policy should 6 cease and determine’. By this I understand that it is suspended; it ceases to bind the company and to protect the assured, and this without any act or declaration on the part of the former. It does not require a formal forfeiture. The term is often used, and, I think inaccurately in such cases”. After citing and analyzing many cases, the court held there could be no recovery on the policy.

Much evidence was offered and admitted on the trial in an attempt to show that leniency had been extended customarily to members and to Mrs. McCaffery in regard to the payment of their assessments. This evidence was immaterial and incompetent. “Proof of a custom is never allowed to overcome the express terms of a contract”. Benevolent Society v. Baldwin, 86 Ill. 479, 487; Field v. National Council, etc., 89 N. W. 774.

There is no evidence in the record tending to show that Mrs. McCaffery’s failure to pay her assessments when due was attributable in any way to any act or representation of any one claiming to represent the appellant. And if it be conceded that the evidence shows that the payment of the assessments made by the plaintiff after Mrs. MeCaffery’s death was sent to the headquarters of the society and held by it until after this suit was brought, under the circumstances disclosed by the evidence it would not afford ground of estoppel against the assertion by appellant of its rights under the terms of the contract. Benevolent Society v. Baldwin, supra.

It is further contended on behalf of appellee that appellant after it had full knowledge of the fact that the February, 1900, assessment had not been paid until after the death of Mrs. MeCaffery, called upon appellee to furnish certain proofs of the death and to go to certain trouble and expense in regard thereto ; and that appellant thereby waived the right to declare the benefit certificate forfeited because of the failure to pay the February assessment within that month.

Neither the benefit certificate nor the by-laws of the order require the beneficiary to furnish such proofs. It was incumbent on the beneficiary merely to report the fact of the death of the member. This was done on March 17, 1900, when plaintiff paid the delinquent assessment to Ryan, and when Ryan in turn reported the fact to Bair, who notified the National Secretary. Bair represented the defendant society in Chicago as organizer of lodges and had something to do with preparing and sending proofs of death to the National Council. Bair stated to plaintiff when she called to see him that he had received proof of death from some source which he deemed insufficient, and requested her to go to the health department of the city and procure a certificate of the death of Mrs. MeCaffery. This Mrs. Dillon did and paid fifty cents therefor. It does not appear by what authority she paid any money for it or that it was a lawful or necessary charge. However that may be, it was Bair’s duty to make out the proof and send it in. He had no authority to promise that the claim would be paid or to reject it, or reject the proof of death. The question is whether these facts constituted a waiver on the part of the defendant of the lapse of the certificate and the suspension of Mrs. McCaffery as a member, by reason of the failure of Mrs. McCaffery to pay her assessment according to her contract.

The by-laws of appellant society were self-executing. By the failure of Mrs. McCaffery to pay the February assessment before March 1, 1900, all her rights under the certificate and her membership in the order were suspended ipso facto, without any act of any kind by any one else to complete such suspension. National Council etc. v. Burch, supra; Field v. National Council etc., 89 N. W. 773.

In the last case cited the Supreme Court of Nebraska say, page 775: “The doctrine of waiver which is often appealed to, to prevent forfeitures in the case of policies of insurance, has no application to the forfeitures of memberships in these orders. The laws and rules governing the different branches of such an order are in the nature of contracts among all the members. In considering the widespread extent of these organizations and the very great extent to which these schemes of benevolence have taken the place of life insurance, especially among the working" classes, it is highly important as a principle of public policy that in cases of this kind their rules and regulations should be substantially upheld by the judicial courts. State v. Temperance Benevolent Association, 42 Mo. App. 485; Karcher v. Supreme Lodge, 137 Mass. 368; Hall v. Supreme Lodge, 24 Fed. 450; Rood v. Association, 31 Fed. 62.”

To the same effect are Royal League v. Moerschbaecher, 88 Ill. App. 89, affirmed in 188 Ill. 9; Elder v. Grand Lodge, etc., 82 N. W. 987; Supreme Lodge, etc. v. Octers, 28 S. E. 322; and Chapple v. Sovereign Camp, etc., 89 N. W. 423.

In onr opinion the certificate of Mrs. McCaffery was as to her a dead certificate prior to. and at the time of her death, and the protection of the certificate was suspended. It is true it might have been restored to full vigor prior to her death, and while she was in good health, by the payment of the assessment. But after her death Bair had no authority to restore it to life and vigor by any direct agreement to that effect. What he could not do directly, for want of authority, he could not do indirectly by any act which amounted to a waiver of the default and the consequent suspension of the certificate. There is nothing in the record showing that Bair or any officer of appellant had any authority, express or implied, to waive the default and restore the policy to life and vigor at the time Bair requested the death certificate and appellee procured it. Thompson v. Ins. Company, 104 U. S. 252.

In our opinion the plaintiff, appellee, cannot recover on the certificate and the judgment must be reversed.

Reversed.

Mr. Justice Baker dissenting.

Per Curiam.

By a petition for rehearing our attention is directed to Jones v. Knights of Honor, 236 Ill. 113, which had not been published at the time this case was submitted, and it is urged that it is similar to this case as to the course and practice of the officers of the local lodge in accepting dues and assessments after the time within which they should have received the same, and it is urged that the decision in that case must control the disposition of the case at bar on principle.

The facts as to the practice of the officers of the local lodge in the Jones case in accepting dues after default are similar to the facts here, and we do not attempt to distinguish the cases in that regard. But there is an important and vital distinction between the cases in the provisions of the beneficiary certificates and the by-laws under which the payments were received. In the Jones case the constitution of the order provided that “ a member failing to pay any assessment required by law shall stand suspended, and .shall not thereafter be entitled to the benefit * * * until he has been duly reinstated in his subordinate lodge in accordance with the laws of the order”. In the case at bar it is provided in the by-laws of the order that no rights of a suspended member under the certificate issued “shall be restored until it has been duly reinstated by compliance by the member with the laws of the order with reference to reinstatement.” And it is further provided in the laws of the order that, “Any beneficiary member suspended by reason of non-payment of assessments may be reinstated upon the following conditions and none other, viz.: If living and in as good health as when suspended”, etc.

No officer or subordinate lodge had any authority under the by-laws to restore a deceased suspended member to good standing by waiving the default, or to restore the rights under the certificate of such deceased member. Moreover, the officer and subordinate lodges were' expressly prohibited from so doing by the by-laws above quoted, if the suspended member be not living. The waiver contended for here to be effectual and restore the rights of the beneficiary under the certificate must be a waiver not only of the default of the deceased, but, of the fact of the death during the default, and also of the express prohibition of the by-law.

The petition for a rehearing is denied.

Petition for rehearing denied.

Mr. Justice Baker dissenting.


source: Caselaw Access Project

author: Me. Peesiding Justice Smith

license: Public Domain

text:
    Carl S. Swanson, by his next friend, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,519.
    1. Evidence—what part of res gestae. A statement otherwise hearsay is competent as part of the res gestae if it was connected with the accident in question both in relation thereto and in proximity of time.
    2. Obdinaby cabe—degree required of minors. A minor boy is only required to exercise that degree of care and caution which boys of his age, capacity, intelligence and experience may reasonably be expected to use under like circumstances.
    3. Instbuctions—must not he argumentative. An instruction on comparative negligence if argumentative is properly refused.
    4. Instructions—must not ignore counts of declaration. An instruction is properly refused which ignores the theory of recovery supported by a good count of the declaration.
    5. Instbuctions—must he predicated upon the evidence. An instruction not supported by any evidence in the cause is properly refused.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed April 20, 1909.
    Statement by the Court. This is an appeal from a judgment of the Superior Court in an action brought by appellee Swanson against appellant to recover damages for injuries resulting from negligence of appellant’s servants.
    Appellee, a boy a little less than nine years of age, with several other boys, while on his way home from school was attracted by a south-bound grip car and trailer belonging to appellant which was stopped for some time about opposite No. 3531 Cottage Grove avenue. The evidence on behalf of appellee tends to show that the conductor of the train was standing with his back against the rear dashboard of the grip car, on the west side of the couplers, apparently trying to push against the rear dashboard with his back. While in this position he invited appellee and other boys standing by to assist him, saying to them, “Come on boys and help push the car”.
    Appellee being face to face with the conductor and, with his knowledge, pushed on the west side of the trailer, taking hold of a rim or projection which ran along the side of the car about the height of his breast from the ground. The cars began to move forward. The conductor thereupon stepped on board the train and gave no further attention to the boys. Appellee and others continued to push, appellee walking opposite the right rear wheel of the car. When the car had moved about ten feet, its speed was suddenly increased with a jerk, and appellee was pulled down, his left leg going over the low side fender and between it and the wheel of the car, which as it revolved ground against his leg and into his flesh. The car ran with appellee’s leg in this position about 350 feet to the corner of Thirty-sixth street before it was stopped, although several men and boys ran alongside of the grip car shouting, “Stop the car; a boy is hurt”. Appellee in the meantime was clinging to the rim or projection and keeping his body off the ground with his right foot. His leg was found nearly ground through, and had to be amputated at the knee.
    The evidence on behalf of appellant tends to show that the cable which propelled the cars on the Cottage Grove avenue line had stopped; that there were a number of lads playing tag, jumping on and off the cars and running through the cars, shouting and ringing the bell while the train was stopped and after it began to move; that the trainmen warned the boys off the train; that the train started without any jerking; that after the train started the boys followed it, shouting and yelling as they had been doing before; that the trainmen did not have any notice that appellee was in peril or danger until the train had nearly reached Thirty-sixth street when some men on the street notified the conductor that one of the boys was in a perilous position and he thereupon gave the emergency signal to stop, and the train was brought to a stop within a few feet; that no invitation was given to appellee or the other boys to assist in pushing the ears, and that no reason could possibly have existed for such a request, for the reason that the cable was never out of the grip, and if it had been, the train could not have been moved a sufficient distance in that way to have reached the first “pick-up” which was located south of Thirty-ninth street, some four blocks from the place of the accident.
    William J. Hynes, Samuel S. Page and Watson J. Feeey, for appellant; John R. Habbington, of counsel.
    John E. Watebs and Fbancis J. Woolley, for appellee.
   Me. Peesiding Justice Smith

delivered the opinion of the court.

Counsel for appellant have presented an elaborate argument upon the evidence in the record to show that the verdict of the jury is not justified, because there is no evidence that appellant was guilty of the negligence averred in the declaration.

The first, second, fourth and fifth counts of the declaration aver knowledge, actual or implied, by appellant of appellee’s dangerous position while pushing the car near the wheel, and that with such knowledge it carelessly started the car suddenly and thereby caused appellee to be thrown against and beneath the wheel, without notifying appellee that it intended to so start the car, so that he might remove himself from his dangerous position.

The gist of the sixth count is that after appellee’s leg was on the fender in front of the wheel, and with the wheel grinding against it, a loud outcry was raised by the bystanders, and that by reasonable heed and attention to what was going on about the car, appellant would have known appellee’s dangerous position, etc., and conld and would have stopped said car in a very short distance before injury to appellee, but that appellant carelessly failed to heed the cries of appellee and the bystanders and failed to learn and know that the wheel was grinding appellee’s leg, and to stop the car accordingly for a great, and unreasonable distance, etc.

We have examined the evidence with great care and also the arguments and contentions of counsel on both sides. The testimony is squarely contradictory and irreconcilable upon the question of notice to the conductor of appellee’s position before the train started, and upon the question whether the train started with a jerk. The testimony is contradictory as to the notice to appellant’s trainmen that appellee was injured and in peril immediately after the train started and while it was moving, and upon the question of negligence in not stopping the train promptly upon the outcries made by appellee and the bystanders. Upon the state of the evidence in the record bearing on these questions we cannot say that the verdict of the jury is not justified by the evidence, or that there is no evidence tending to prove that appellant was guilty of the negligence alleged in the declaration or any count thereof. We think the question of appellant’s negligence as alleged in the declaration must be regarded as settled by the verdict.

We do not find any substantial basis in the record for the contention that the jury were influenced by motives of prejudice or swayed by sentiments of sympathy; and that the jurors were not governed by the evidence in reaching their verdict.

It is insisted on behalf of appellant that the court erred in admitting the testimony of appellee, Ruse, Wood, Delpire and others, to the effect that the conductor requested appellee and the witnesses to push the train. One ground of this contention is that this request, if made, was before the train started and several minutes, at least, before the accident. The request, therefore, was no part of the res gestae. In our opinion, under the evidence, it was so connected with the accident, both in relation to it and in proximity of time, to be properly admitted in evidence. We think it tends to illustrate and interpret the other parts of the transaction of which it was itself a part. Chicago W. D. Ry. Co. v. Becker, 128 Ill. 545.

It is difficult to believe that the conductor made the request, if it was made, with any idea that the boys could move the train or that there was any reason to suppose it would do any good or serve any useful purpose, if they could move it. The invitation to push, if made at all, must have been made in jest. No claim was made in the declaration or on the trial that appellant was liable for negligence in inviting appellee to push the train. The evidence was offered in connection with other evidence for the purpose of showing actual knowledge on the part of the conductor that appellee was pushing the car and the danger he was in of being injured by starting the car without notice to him. For this purpose we think the evidence was competent.

We find no reversible error in giving the eleventh and twelfth instructions requested by appellee. Star Brewing Co. v. Hauck, 222 Ill. 350; Chicago W. D. Ry. Co. v. Ryan, 131 id. 474; Pierce v. Walters, 164 id. 560.

As to instruction No. 40, requested by appellant and refused by the court, we are of the opinion that the first proposition of the instruction, that appellee must prove he was not guilty of any want of ordinary care, prudence and caution, is not properly qualified to make it applicable to appellee, who was under nine years of age. The rule on this subject was properly stated in instruction No. 38, given at appellant’s request, which told the jury that appellee was only required to exercise that degree of care and caution which boys of his age, capacity, intelligence and experience may reasonably be expected to use under like circumstances. Peterson v. Chicago T. Co., 231 Ill. 324, 327.

The second proposition contained in this instruction was fully covered by instructions Nos. 24 and 25, requested by appellant.

The forty-first instruction (refused) on comparative negligence was argumentative. It also ignores the case made under the sixth count of the declaration, under which appellee might recover although he was guilty of negligence in getting into the position where he was injured. The refusal of the instruction was not prejudicial error.

The court did not err in refusing to give the forty-second instruction, for there was no evidence that appellee had gotten upon the car to steal a ride thereon. There was no evidence on which to base the instruction.

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

Affirmed.


author: Mb. Presiding Justice Smith

text:
    Katherine L. Gage, Appellee, v. Herman Weineck et al., Appellants.
    Gen. No. 14,987.
    1. Forcible entry and detainer—what essential to jurisdiction of Circuit Court upon appeal. In an appeal from a justice’s judgment in an action of forcible entry and detainer, the jurisdiction of the Circuit Court does not attach until the complaint filed before the justice has been filed in such Circuit Court.
    2. Judgments—what essential to validity. A judgment is erroneous which upon the face of the record is not responsive to or based upon the verdict and which is not sustained by the verdict.
    3. Amendments and jeofails—power of court to amend judgment. Notwithstanding an appeal and notwithstanding the lapse of several terms after the judgment term the trial court has power, on due notice to the parties interested, to amend or correct its judgment pursuant to a memorial so as to make it speak the truth when by clerical misprision, as shown by such memorial, it does not speak the truth.
    Forcible detainer. Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Tuthikl, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed April 20, 1909.
    E. F. Mastebson, for appellants.
    James E. "Ward, for appellee.
   Mb. Presiding Justice Smith

delivered the opinion of the court.

A motion is made by appellants for an order striking from the files of this court a portion of the record, called the “1st amended record”, filed in this court on February 2, 1909. This record shows that on January 8, 1909, a certain complaint in forcible detainer, and a summons from a justice court, were filed in the Circuit Court and it contains copies thereof; that afterwards, on January 19, 1909, the plaintiff moved in the Circuit Court that the clerk be directed to enter judgment on the verdict theretofore rendered and filed in the cause. The court on such motion entered an order, reciting an examination of the records of the court in the cause and the entries and minutes of the judge in the cause, and finding that the clerk of the court had not entered upon the records the judgment ordered by the court in accordance with the verdict. The court then entered an amended judgment on the verdict for the restitution of the premises, describing them.

The- record originally filed in this court, October 5, 1908, shows that the cause was tried on May 6, 1908, and the jury returned a verdict finding the' defendants guilty of unlawfully withholding from the piaintiff the possession of the premises described in the plaintiff’s complaint filed in the cause and that the right of possession of said premises was in the plaintiff. Afterwards on May 16, 1908, the court overruled a motion for a new trial and a motion in arrest of judgment, and entered a judgment, as recorded by the clerk, in replevin. And from that judgment this appeal is prosecuted. This appeal was perfected by filing an appeal bond on June 20, 1908, in accordance with the order allowing the appeal, and the bond was duly approved.

It appears, therefore, from the record that at the time of the trial and verdict, and the entry of the judgment appealed from, there was not and never had been on file in the Circuit Court, where the cause was pending on appeal from a justice of the peace, the complaint in forcible detainer filed before the justice. It follows that the Circuit Court was at the time of the trial, verdict and judgment without jurisdiction to hear and determine the cause, and that the trial, verdict and judgment were void for that reason. Stillo v. Pelletiere, 140 Ill. App. 428, and cases there cited. The judgment of May 16, 1908, was also erroneous on the face of the record, for the reason that it was not responsive to, or based upon the verdict, and was not sustained by the verdict.

It appears from the amended record that the judgment of May 16, 1908, was amended on January 19, 1909, while this appeal was pending here; and it is urged that the cause having been transferred to this court by the appeal, the Circuit Court was without power to vacate and set aside the judgment so erroneously spread of record by the clerk, and that the certified copy of that' record should be disregarded by the court, and should be stricken from the files. With this contention we cannot agree. Notwithstanding the appeal, and that several terms of court had intervened after the judgment term, the court had the power on due notice to the parties interested to amend or correct the judgment so as to make it speak the truth, when by clerical misprision it does not speak the truth. Knefel v. The People, 187 Ill. 212. The order of January 19, 1909, was in terms an amendment of the judgment entered May 16, 1908, although not made nunc pro tuno as of that date. The record shows it was made on an inspection of the record and memoranda made by the presiding judge on May 16, 1908. These memoranda and the record were, in our opinion, a sufficient basis for the amendment. The amendment of the judgment is an essential part of the record of the judgment and is properly on file and before us on this appeal as a part of the record in the case. The motion to strike it from the files must therefore be denied.

The peculiar state of the record in this case having thus been brought to our attention on the motion disposed of above, and it appearing that the trial took place and the verdict was rendered, before the complaint made before the justice of the peace was ever filed in the Circuit Court, and that the court had no jurisdiction to hear and determine the case (Stillo v. Pelletiere, supra), we see no reason for not disposing of the case at this time. We, therefore, of our own motion, advance the case and dispose of it at this time, and for the error indicated the judgment is reversed and the cause is remanded to the Circuit Court for a new trial.

Reversed and remanded.


author: Mr. Presiding Justice Smith

text:
    Grand Pacific Hotel Company, Appellant, v. Michigan Commercial Insurance Company, Appellee.
    Gen. No. 15,341.
    1. Insurance—how contract to Be construed. The language In a contract of insurance is to he given the meaning which it conveys to the ordinary mind. A new contract will not by construction be made for the parties, nor, the language of the contract being free from ambiguity, will the doctrine of favorable construction to the insured be applied.
    2. Insurance—contract against loss of use and occupation con

      strued. A policy which insures for loss of use and occupation occasioned by fire which provides that such loss, if any, is to be computed from the occurrence of any fire to the time when the building in question and the equipment therein could with reasonable diligence and dispatch be rebuilt, repaired or replaced, does not cover a loss resulting from a termination of the lease under a provision contained therein which confers the right of termination upon the lessor in the event of destruction by fire, it not appearing that the contract of insurance was entered into with knowledge of such lease, the policy in question being construed to cover solely the period within which the restoration of the premises could with the diligence referred to have been accomplished.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Geokge A. Dupuy, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 19081
    Affirmed.
    Opinion filed April 20, 1909.
    Statement by the Court. Appellee, Michigan Commercial Insurance Company, issued its policy of insurance by which, in consideration of $148.50, it insured appellant, Grand Pacific Hotel Company, against loss by fire as follows: “$9,000 on the use and occupancy of the Grand Pacific hotel situated on the northwest corner of Jackson boulevard and South Clark street, and known as Nos. 232 to 248 South Clark street, Chicago, Ill.” The policy ran from noon August 31, 1907, to noon August 31, 1908. In addition to this appellant held $61,000 other insurance, making a total of $70,000 on use and occupancy of the same hotel.
    The policies all provided that if the Grand Pacific Hotel, or any part thereof, or the equipment therein, or any part thereof, should be destroyed, or entirely disabled by fire occurring during the term, and under the conditions of the policy, so as to entirely prevent operating, or carrying on the business, or if the buildings or any part thereof, or the equipment therein or any part thereof, shall be so damaged or disabled, as to prevent the full use or occupancy of the premises, then appellee should be liable for its pro rata part of four fifths of the loss sustained ascertained and proven under the conditions of the policy, for such total or partial prevention, not exceeding one three-hundredth part of the sum insured under the policy per day for total prevention, nor proportionately for partial prevention, for each working day (of 24 hours) of such total or partial prevention, and not exceeding three hundred of such working days, nor in any event exceeding the sum insured.
    The policy provided that the loss, if any, was to be computed from the occurrence of any fire to the time when the said building and equipment therein could, with any ordinary diligence and dispatch, be rebuilt, repaired or replaced, and not limited to the day of expiration named in the policy. For the purposes of the insurance it was agreed that the total net gain for 300 working days, beginning with the corresponding day of the year immediately preceding the fire, should be taken; and that the basis of claim for total prevention shall not exceed the daily average of such three hundred days, nor for partial prevention a proportionate share of such daily average.
    Appellant was in possession of the premises described in the policy under a lease from Levi Z. Leiter, commencing on January 1, 1898, and ending August 31, 1908. This lease contained the following provision: “And provided further, that if the said buildings located upon said premises or any substantial portion thereof, shall at any time on or after the first day of January, 1907, be rendered untenantable by fire, lightning or other cause without the fault of said lessee, then said lessor shall have the right to elect whether he will restore said building or terminate this lease, such election to be made within twenty days after such injury or damage. ’ ’
    On March 20, 1908, a fire occurred in the Grand Pacific Hotel which resulted in so disabling the premises as to* prevent the further carrying on of the hotel business by appellant. The fire destroyed and rendered untenantable a substantial portion of the building leased to appellant.

      On March 31, 1908, the legal representatives of the lessor (trustees of the estate of Levi Z. Leiter, deceased,) notified appellant in writing that in accordance with the provisions of the lease, the lessor had elected to terminate appellant’s lease of the premises, and on the' same day, in accordance with the terms of this notice, appellant gave up possession thereof to the lessor.
    Proofs of loss, were duly filed with appellee, in which claim is made for the maximum liability per day one three-hundredth part of the total amount insured for 164 days, namely, from March 20th -to August 31, 1908, the remainder of the term of the lease.
    It was stipulated and agreed between the parties that after the fire on March 20, 1908, the hotel was “wholly or entirely disabled for a period of seven days; that nine-tenths of said hotel was disabled for an additional period of seven days; that eight-tenths of said hotel was disabled for an additional period of twenty days; that two-thirds of said hotel was disabled for an additional period of twenty days; that in addition to that, it was also disabled to the extent of fifty per cent., or one-half for an additional period of twenty days; that it was also disabled to the extent of 20% for an additional period of ten days; making a total of partial disablement of said hotel for a period of eighty-four (84) days and no more; and that at the expiration of said 84 days the building was replaced and completely restored.”
    The agreement of the parties further recites:
    “It is further agreed that a computation of the loss upon the above basis is as follows:
    7 days total, at 100%, $233.33 per day, $1633.31
    7 90% 210.00 1470.00
    20 80% 186.66 3733.33
    20 66% 155.55 3111.11
    20 50% 116.66 2333.33
    10 20% 46.67 466.70
    84 . $12747.78”

      Appellant brought this action on the policy in the Superior Court. A jury was waived and the cause was submitted to the court for trial. The court found and entered judgment in favor of appellant for $1,668, from which this appeal is prosecuted.
    Goldzier, Rodgers So Froehlich, for appellant.
    Bates, Harding, Edgerton So Bates, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The question in controversy is whether the policy sued on covers not only the loss on the use and occupancy of the hotel to the time when the building and equipment therein could, with ordinary diligence and dispatch, be rebuilt, repaired or replaced, but also, as contended by appellant, a termination of the lease in consequence of the .fire as one of the risks insured and assumed by appellee.

The primary and controlling question in the solution of the controversy then is, what does the language in this contract of insurance mean?

The provisions of the policy which we are called upon to interpret are given in the foregoing statement.

The words used are ordinary words and they have a precise, definite and well understood meaning in the connection in which they are used. In the construction of such language in a contract it is to be given the meaning which it conveys to the ordinary mind. Seitzinger v. Modern Woodmen, 204 Ill. 58, 68. There are no contradictions or inconsistencies in the policy to be reconciled. It plainly says that the amount of the loss which appellee is to pay appellant is to be computed from the day of the occurrence of any fire to the time when the building and equipment therein can, with any ordinary diligence, be repaired or replaced. There is in the provisions of the policy no ambiguity of expression which leaves the mind in doubt as to the intention of the parties. If the language of the policy is capable of two interpretations, undoubtedly under the authorities, the one most favorable to the insured is to be adopted, in order to indemnify him for the loss which he has sustained. Forest City Insurance Co. v. Hardesty, 182 Ill. 46. But, as we understand the position of appellant, it is not claimed that there is any ambiguity in the language used in the policy, or that there was any misunderstanding at the time the policy was delivered and accepted. Appellant contends that the policy insures the “use and occupancy” of the premises in question,— not the premises themselves, not any tangible property, neither fixtures, furniture, masonry nor machinery,— but simply and solely the use and occupancy, which means the right and physical ability to occupy for the purposes of appellant. Therefore, it is urged that whatever confers the right to use and occupy, whatever detracts from or destroys that right must have been within the contemplation of the parties when the contract was made. And specifically it is urged that a fair construction of the policy would include a termination of the lease in consequence of the fire as one of the risks assumed by the insurer, and appellee is liable for the damages caused by such termination.

Tn our opinion the provisions of the policy do not bear the construction contended for. The words, employed in the connection in which they are used, will not permit the construction sought to be placed upon them by appellant considering the subject-matter in reference to which the parties contracted. We think the intention of the parties, which must be ascertained from the words employed by them, and the subject--matter of the contract, was not to insure appellant against the termination of the lease, or failure of its title to the possession in case of fire, by the act of the landlord. We find nothing in the terms of the policy indicating, or even suggesting, that the election or decision of the landlord to terminate the lease under which appellant’s right of nse and occupancy existed was reasonably within the minds of the parties when the contract was entered into. To give the policy the construction contended for by appellant would in effect import or insert into the contract the equivalent of the following: “In the event that the landlord of said premises shall under the terms of the lease elect to terminate the lease, after the building or any part thereof shall be damaged by fire, the loss, if any, shall be computed from the day of the occurrence of such fire to the expiration of the term of the lease.” This in our opinion, is not warranted by any provision or expression in the policy, and would be making a new contract for the parties, which courts are without power to do. Eagle F. Ins. Co. v. Spry Lumber Co., 138 Ill. App. 610; Seitzinger v. Modern Woodmen, 106 Ill. App. 457; Jacobson v. L. L. & G. Ins. Co., 135 Ill. App. 22; Liebenstein v. Aetna Ins. Co., 45 Ill. 305; Clements Fire Insurance as a Valid Contract, Vol 1, pp. 454, 458; Wood on Insurance, p. 179, sec. 69.

That an insurance company has the right to limit its liability by provisions in its policy is too well settled to admit of discussion. Hebner v. Palatine Ins. Co., 157 Ill. 144; Jacobson v. Liverpool, London & Globe Ins. Co., supra; Cooley’s Briefs on Law of Insurance, Vol. 4, p. 3054; Ostrander on Ins. 463. The provision in the policy that, “Loss, if any, shall be computed from the day of the occurrence of any fire to the time the said building and equipment therein could, with any ordinary diligence and dispatch, be rebuilt, repaired or replaced and not limited to the day of expiration named in this policy,” must be regarded as a proper and reasonable limitation of the loss, and expressed in terms free from ambiguity, and having a precise, definite and well understood meaning. We find it impossible to read this provision in any way which would convey to the ordinary mind the intent or purpose to insure appellant against the judgment or caprice of the landlord in exercising his rights under the lease. Nor can we so read the clause that it conveys or suggests the intention to insure appellant the right to the use and occupancy of the premises for the entire term of a lease not mentioned or referred to in the policy, in the contingency that through the action of the lessor in the lease it may become impossible to restore such use and occupancy to appellant. We are confirmed in these views of the policy before us by the following cases, which we regard as covering in principle the main point in controversy here: Palatine Ins. Co. v. O’Brien, 16 L. R. A. (N. S.) 1055; Hartford F. Ins. Co. v. Northern Trust Co., 127 Ill. App. 355; Michael v. Prussian Nat. Ins. Co., 63 N. E. R. 811, 813; Hewins v. London Assurance Corporation, 184 Mass. 177.

We cannot consent to appellant’s proposition that the loss caused by the termination of the lease was a fire loss within the true meaning of the provisions of the policy, and that appellant is entitled under its contract to indemnity therefor. We are unable to see from the contract how appellee can be held to have contracted in relation to, and having in view the provisions of a lease, which, so far as this record shows, was wholly unknown to it.

The judgment of the Superior Court is, we think, for the correct amount as shown by the evidence. Finding no reversible error in the record, the judgment is affirmed..

Affirmed.


author: Mr. Justice Baker

text:
    Henry R. Amann, Appellee, v. Chicago Consolidated Traction Company, Appellant.
    Gen. No. 14,510.
    1. Vebdict—when not excessive. A verdict reduced by remittitur to $3,500 in an action for assault, held, under the evidence, not excessive.
    2. Damages—what evidence competent in action for injuries to person. In an action for assault it is competent for the plaintiff to show what his regular employment was at the time of such assault, if such employment was permanent, and what was his salary or wages.
    3. Evidence—what opinion of expert competent. In an action for injuries to the person it is competent for an attending physician to give his opinion to the effect that the contusions and abrasions which he found upon the plaintiff were such as might aggravate his previous condition of partial paralysis.
    Action on the case. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed April 20, 1909.
    John A. Bose and Frank L. Kriete, for appellant.
    Morgan & Bubenstein, for appellee; Bowles & Bowles, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

In an action on the case brought by appellee against appellant, to recover damages for an assault alleged to have been maliciously made by a conductor of the defendant on the plaintiff while a passenger on a street ear of defendant, the jury found the defendant guilty and assessed plaintiff’s damages at $5,525. The plaintiff remitted $2,025, the court denied defendant’s motion for a new trial, gave judgment for plaintiff for $3,500, and defendant appealed.

Two grounds of reversal are argued by appellant: First, that the damages are excessive, and second, that the trial court erred in its rulings on evidence.

At the close of plaintiff’s case, plaintiff’s counsel at the request of defendant’s counsel, admitted that Major Devlin, who had charge of reports made to defendant of accidents and occurrences similar to the one out of which this suit grew, would, if present, testify that no report was made to the defendant of said occurrence. The defendant offered no evidence and the case was submitted to the jury on the evidence for the plaintiff and said admission by plaintiff’s counsel. The acts complained of were committed June 25,1903.

In October 1900, plaintiff.had a stroke of paralysis, which left his left side, leg and arm partially paralyzed. His condition improved to some extent before the assault, but at that time he was still partially paralyzed.

On the day of the assault, plaintiff was a passenger on a west bound open electric street car of defendant in Belmont avenue, Chicago, and intended to leave the car at Lincoln avenue. The car stopped on the east side of that avenue and two passengers left the car. Plaintiff arose to leave the car, but before he was able to do so, the conductor gave the signal to start and the car started forward. Plaintiff then resumed his seat, intending to leave the car when it stopped on the west side of the avenue. He testified that as the car approached the west side of Lincoln avenue it was running very slowly and he arose to get off; that the car did not stop and in his paralyzed condition he could not get off; that while he was still standing with one foot on the running board and the other on the floor of the car, the motorman turned on the current; that plaintiff then seized the bell cord and pulled it two or three times to signal the car to stop; that so soon as he did so the motorman turned off the current; that so soon as plaintiff pulled the cord the conductor ran back on the foot board to the plaintiff, ordered him to leave the car, called him a vile name and caught him by the neck and threw him from the car; that plaintiff’s left side, the partially paralyzed side, struck the ground; that his left shoulder, arm, side and leg were bruised, his left ankle sprained and his left hip injured.

Before plaintiff was paralyzed he was a musician, played the banjo and guitar, but was not able after-wards to play. About January, 1902, he was employed by Lange, a florist, at $75 a month. He kept books, made purchases of seeds and flowers for his employer at the wholesale houses and rendered other services. He was laid off during the dull months of July and August, 1902, went back to work September, 1902, and worked until about the first of July, 1903, when he was again laid off. He testified that his health was satisfactory when he quit work in June, but that since the assault he had not been able to do any work; that he was too nervous to work; that when he was thrown from the car he weighed 185 to 190 pounds, and at the time of the trial 155 pounds; that he paid to physicians and for massage and electrical treatment after he was thrown from the car, $800. It is true that plaintiff was unable to give any particulars as to the payment of the different sums making up this amount of $800, or to state, with one exception, the name of the person to whom he paid money for treatment after the assault. From his testimony and that of Dr. Stern, who examined him soon after the assault, and treated him for some time afterwards, the jury might properly find that plaintiff in being thrown from the car was severely bruised and injured. Dr. Stern testified that such injuries might affect unfavorably his paralytic condition. Plaintiff testified that his condition since the assault had been much worse than it was for some time before the assault; that he had worked from January, 1902, to the end of June, 1903, except during July and August, 1902, when he was laid off because business was dull, and that during the four years and some months which elapsed between the assault and the trial, he had not been able to do any work.

From all of the evidence the jury might, we think, properly award the plaintiff a substantial sum as compensation for actual damages suffered by him in consequence of the assault. From the evidence the jury might also, we think, properly find that the as-' sault made on the plaintiff was malicious; that the injuries he sustained thereby, were maliciously and wantonly inflicted by the conductor, under such circumstances as to justify and support an award of punitive damages against the defendant.

We do not think that, on the evidence in this record, the amount of the judgment can be held excessive.

We are unable to see that the fact that plaintiff was a musician, but when unable longer to follow that profession, entered the services of a florist, rendered it improper to prove the salary or wages paid him by the florist. It was not a mere casual or temporary employment. He was so employed from January, 1902, to the end of June, and from September 1, 1902, to the end of June, 1903, and expected to resume his duties September 1, 1903.

It was not error to refuse to strike out the answer of Dr. Stern that in his opinion such contusions and abrasions as he found on the left side of the plaintiff might aggravate his condition of partial paralysis. The answer was but an expression of his opinion that such contusions and abrasions on that side of plaintiff’s body were competent to aggravate his condition of partial paralysis.

The record is, we think, free from error and the judgment will be affirmed.

Affirmed.


text:
    George J. Cooke Company, Appellee, v. Alexander G. Burke, Appellant.
    Gen. No. 14,512.
    1. Appeals and errors—when party cannot complain of defective issue. Where both parties to a cause by their conduct have treated it as presenting an issue on which it was tried, neither can be heard on review to complain that there was no issue to be tried; the irregularity is cured by the finding and judgment.
    2. Damages—what competent to show loss of rental value. In an action upon a bond given upon appeal from a judgment in forcible detainer, the plaintiff is entitled to the reasonable rental value for the purpose for which the rental value of the premises in question was highest, and evidence of the particular purpose for which the highest rental value could be obtained and evidence of the reasonable rental value of the premises for such purpose is competent.
    3. Judgment—what irregularity will not reverse. A judgment in an action of debt which fails to include in the judgment a judgment for the amount of the penalty of the bond, is a mere error in form, cured by section 7 of the statute of amendments and jeofails, and is not ground for reversal.
    Action of debt. Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard .in the Branch Appellate Court at the March term, 1908.
    Rehearing denied May 4, 1909.
    Affirmed.
    Opinion filed April 20, 1909.
    Statement by the Court. Appellant as surety and one Fitzgerald as principal executed a bond to appellee in the penal sum of $2,500 on an appeal from a judgment in forcible entry and detainer in favor of appellee against said Fitzgerald, for the possession of certain premises. Appellee brought an action of debt in the Municipal Court on said bond against appellant alone, claiming $2,500 debt and $2,500 damages, thus making the action an action of the first class.
    The pleadings filed previous to September 30, 1907, may be disregarded, for on that day the plaintiff filed its amended declaration, consisting of two counts. To the first count defendant filed a plea of nil debet, October 10, and on the same day a demurrer to the second count. October 14, the court sustained defendant’s demurrer to defendant’s plea (of nil debet), which was sustained November 6. There is in the record no plea to the amended declaration other than said plea of nil debet to which, as has been said, a demurrer was sustained.
    November 13, plaintiff filed a replication in form precludi non: “because it says that it was damaged as it has above in its declaration alleged,” etc.
    The case was submitted to the court and plaintiff had judgment for $846.90 damages and costs, and the defendant appealed.
    Thomas J. Young and S. E. Lambert, for appellant.
    Auden, Latham & Young, for appellee; Charles Martin, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

At the beginning of the trial defendant’s counsel admitted the making of the bond; the judgment against Fitzgerald in the forcible entry and detainer suit on appeal; that he withheld the possession of the premises in question from July 9, 1905, to May 8, 1907, and that plaintiff was entitled to recover the reasonable rental value of said premises during the time possession was so withheld. The parties agreed on the amount of plaintiff’s unpaid costs in the forcible entry and detainer suit. The only controverted question in the case was the rental value of the premises during the time possession was so withheld, and on that question and that question alone both parties offered evidence. By their conduct both parties treated the cause as presenting the issue on which it was tried, and neither can now be heard to complain that there was no issue to be tried. The irregularity was cured by the finding and judgment. Pinkerton v. Sydenor, 87 Ill. App. 76, and cases there cited.

Appellant has not urged, as a ground of reversal, the irregularity in proceeding to trial on the pleadings as they appear in the record, but has stated and argued three grounds of reversal. The first ground is that: ‘ ‘ The court erred in admitting evidence on behalf of the plaintiff of the rental value of the premises in question for ‘saloon purposes’.”

The premises in question had been used for saloon purposes for many years and were so used during the time the possession thereof was withheld from the plaintiff by Fitzgerald. Plaintiff was entitled to the reasonable rental value for the purposes for which the rental value of the premises was highest. The court did not err in admitting evidence that the most valuable use to which the premises could be put was for saloon purposes, and then admitting evidence of their rental value for saloon purposes.

The second ground of reversal urged is that: “The judgment is against the weight of the evidence”. The court assessed plaintiff’s damages on the basis that the rental value of the premises was $37 per month. The evidence was conflicting, that for the plaintiff tending to show that their value was more than $37 per month and that for the defendant that it was less. On the evidence we cannot say that the judgment is against the weight of the evidence.

The last ground of reversal urged is that: “The judgment is erroneous in form”. The judgment is that: “the plaintiff have and recover of the said defendant the said sum of eight hundred and forty-six dollars and ninety cents for its damages” and its costs. It should have been that the plaintiff recover, etc., $2,500 his debt and $846.90 his damages and costs, the judgment to be discharged on payment of the damages and costs. In such a judgment the judgment for the penalty of the bond as debt is merely formal; the real judgment is the judgment for the damages assessed by the court or jury for the breach or breaches of the condition of the bond.

Section 7 of the statute relating to amendments and jeofails provides that: “No judgment shall be reversed, in the Supreme Court, for mere error in form, if the judgment is for the true amount of the indebtedness or damages.” The judgment here is for, “the true amount of damages” as assessed by the court. The error in failing to include in the judgment a judgment for the amount of the penalty of the bond as debt, is a mere error in form by which the appellant is not prejudiced. We do not think that for such error the judgment should be reversed, nor that it is necessary that the judgment be corrected, in form, in this court.

The record is, we think, free from reversible error and the judgment of the Municipal Court will be affirmed.

"Affirmed.


text:
    Moses H. Jones, Appellee, v. Marshall E. Sampsell, Receiver, et al., Appellants.
    Gen. No. 14,520.
    1. Instructions—when excludes issue of negligence. An instruction as follows, in an action for personal injuries predicated upon a charge of negligence by the defendant, is erroneous in excluding from the jury the issue of negligence.
    “If the jury believe from the preponderance of the evidence that the plaintiff while in the exercise of ordinary care was injured by or in consequence of the defendant, as charged in the declaration or either of the counts thereof, then you can find the defendant guilty.”
    2. Instructions—when upon preponderance of evidence erroneous. The following instruction is erroneous in excluding the tests in arriving at the credit to be given to the testimony of witnesses, first, their honesty; secondly, their ability; thirdly, their numbers and the consistence of their testimony with experience; fourthly, the coincidence of their testimony with collateral circumstances.
    “By a preponderance of proof the court does not mean the largest number of witnesses on a given point; four or five witnesses may testify to a fact and a single witness may testify to the contrary; but under such circumstances and in such manner and with such. air and appearance of truth and candor as to make it more satisfactory or convincing to you that the one witness, with the opportunity of knowing the facts testified to, has told the truth in the matter. When you are thus satisfied that the proof lies with a single witness or any number, you are justified in returning a verdict in accordance therewith. This is what is meant by a preponderance of the proof. It is that character or measure of evidence which carries conviction to your minds.”
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. William H. McSuhely, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed and remanded.
    Opinion filed April 20, 1909.
    John A. Boss and Frank L. Kriete, for appellants; W. W. G-urley, of counsel.
    James T. Brady and G. Fat Beeves, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

In an action on the case in which appellee was plaintiff and appellants defendants, for personal injuries, plaintiff had judgment for $2,000, and the defendants appealed. The defendants operated in Evanston avenue, Chicago, an electric street railroad. Plaintiff was driving a one horse sprinkling wagon south in said avenue west of and alongside of the track of defendants. A south-bound car overtook the wagon, collided with it, and plaintiff was thrown from the wagon and injured. The first count of the declaration alleged that the defendants so negligently etc., ran and managed said car that it was driven forcibly against said wagon and thereby plaintiff was thrown out and injured. The second count alleged that defendants negligently etc., ran said car at an excessive and dangerous rate of speed; that the car struck said wagon and thereby plaintiff was thrown out and injured. The third count alleged that defendants negligently etc., failed to ring a bell or in any way give warning of the approach of the car; that the wagon was struck by the car and thereby plaintiff was thrown out and injured.

The court gave for the plaintiff the following instruction :

“If the jury believe from the preponderance of the evidence that the plaintiff while in the exercise of ordinary care was injured by or in consequence of the defendant, as charged in the declaration or either of the counts thereof, then you can find the defendant guilty.”

By this instruction the jury were told that they could find the defendant guilty if they found that plaintiff was in the exercise of ordinary care and, “was injured by or in consequence of the defendant as charged in the declaration.” The words “or in consequence of” in the instruction may be omitted without affecting the sense of the sentence in which they are used. In effect the jury were instructed that if they found that the plaintiff, while in the exercise of ordinary care, was injured by the defendant as charged in the declaration, they could find the defendant guilty. Negligence was of the gist of the action. It was the province of the jury first to determine what the servants of the defendants in charge of the car did in respect to the operation of the car, and then to determine whether their acts or omissions in respect to the operation of the car did or did not amount to and constitute negligence.

The effect of the instruction was to eliminate and withdraw from the consideration of the jury the question whether the acts of the defendants’ servants in respect to the operation of the car alleged in the declaration, were done negligently; the question whether such acts constituted and were negligence. The instruction purported to state all the facts necessary to be found by the jury in order to find the defendant guilty, and the giving of it was reversible error because it omitted the material fact of negligence. C. C. Ry. Co. v. Dinsmore, 162 Ill. 658.

The court also gave for the plaintiff the following instruction:

“By a preponderance of proof the court does not mean the largest number of witnesses on a given point; four or five witnesses may testify to a fact and a single witness may testify to the contrary, but under such circumstances and in such manner and with such air and appearance of truth and candor as to make it more satisfactory or convincing to you that the one witness, with the opportunity of knowing the facts testified to, has told the truth in the matter. When you are thus satisfied that the proof lies with a single witness or any number, you are justified in returning a verdict in accordance therewith. This is what is meant by a preponderance of the proof. It is that character or measure of evidence which carries conviction to your minds. ’ ’

“The credit due to the testimony of witnesses depends upon, first, their honesty; secondly, their ability ; thirdly, their numbers and the consistence of their testimony with experience; fourthly, the coincidence of their testimony with collateral circumstances.” 1 Starkie Ev. 544.

By the instruction in question these tests are ignored. The objections to such an instruction are pointed out in Keller v. Hansen, 14 Ill. App. 640. The giving of the instruction in question was also, in our opinion, error.

For the errors indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Sophia Maciejewska, Appellee, v. Theodore Jarzombek, Appellant.
    Gen. No. 14,527.

      Pabtitiok—when allowance for improvements properly denied. A remote grantee of one who has made improvements upon property subjected to partition at a time when he had no title or interest therein except an inchoate right of dower in an undivided one-third thereof, is not entitled to an allowance upon account of such improvements.
    Partition. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the MArch term, 1908.
    Affirmed.
    Opinion filed April 20, 1909.
    George W. Hess, for appellant.
    John S. Hummer and Charles A. McDonald, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal from a decree that partition he made of a certain lot in Chicago between appellant and appellee. It is undisputed that the parties are tenants in common, and that appellee is the owner of an undivided two-thirds and appellant of the other one-third of said lot. The sole ground of reversal urged is, that the decree makes no allowance to appellant for improvements made on said lot by John Jarzombek, appellant’s grantor.

The title to the interest of each of the parties in said lot was derived as follows: John Witt died seized in fee of said lot intestate December 2, 1883, leaving Josephina Witt his widow and Sophia and Mary Witt his daughters, his only heirs at law, to whom the lot descended as tenants in common in equal shares, subject to the dower and homestead rights of the widow. The daughter Sophia is now Sophia Maciejewska.

In 1885, Mary Witt died intestate and her undivided half of said lot descended to her mother and sister, two-thirds to the mother and one-third to the sister, and thereafter Sophia Witt was the owner of the undivided two-thirds and her mother of the remaining one-third. July 25, 1887, Josephina Witt married John Jarzombek. October 12, 1904, Josephina and John Jarzombek conveyed said lot to Zaleski and three days later Zaleski reconveyed said lot to John and Josephina Jarzombek as joint tenants. December 15, 1905, Josephina Jarzombek died and John Jarzombek, as her survivor, became sole owner of an undivided one-third of said lot. January 8,1906, John Jarzombek conveyed his interest in said lot to the defendant, Theodore Jarzombek.

At the time of his death John Witt lived with his family in a small house on the front end of the lot and his widow lived there after his death. After his marriage to Josephina Witt, "John Jarzombek lived with his wife in said house. Not long after his marriage he enlarged and improved said house. About 1889 he moved said house from the front to the rear end of the lot, and had another building placed on the front end of the lot which he improved and converted into a dwelling which he rented to other persons. He lived with his wife on said lot from the time of his marriage until he conveyed it to appellant; first in the small house, then in the cottage while it stood on the front end of the lot, and also after it was moved to the rear end of the lot. His stepdaughter Sophia lived with him as a member of his family up to the time of her marriage about 1898.

July 26,1889, there was recorded an instrument purporting to be a warranty deed of said lot from John and Josephina Witt to John Jarzombek, dated March 15, 1885, and purporting to have been acknowledged on the day of its date before Peter Kiolbassa, a notary public. It is conceded that this instrument, dated and purporting to have been executed and acknowledged long after the death of John Witt, is forged and fictitious.

Whether John Jarzombek had the knowledge of the execution or recording of this forged and fictitious instrument it is not necessary to decide. The view most favorable to appellant is that he had no such knowledge, and for the purposes of this decision that view will be assumed to be. correct.

Appellant relies on the well settled rule that when one tenant in common makes improvements on the property, he is, in case of partition, entitled to an allowance for such improvements, and his grantee is in such ease entitled to an allowance. In all cases cited in which such allowances were made, the party who made the improvements was, at the time the improvements were made, a tenant in common. In this case the improvements for which the allowance was claimed were made by John Jarzombek at a time when he had no title or interest in said lot except his inchoate right of dower in the undivided one-third owned by his wife. The fact that he had such right in said lot when he made the improvements cannot be held to entitle his grantee to an allowance for such improvements.

There is no evidence tending to show that Josephina Jarzombek contributed towards the making of said improvements, and the contention of appellant that the improvements were made and paid for by John and Josephina Jarzombek jointly, or out of their joint funds, is without support in the evidence.

Appellant further contends that although John Jarzombek made said improvements it will be presumed, in the absence of evidence, that he made such improvements for the purpose of enhancing the value of the interest of his wife in said lot and as a gift to her, and that therefore appellant, her remote grantee, is entitled to an allowance for such improvements. This contention is, we think, without merit.

The improvements made on said lot by John Jarzombek, in our opinion, were not made under such circumstances as to entitle his grantee to an allowance on account thereof in this proceeding, and the chancellor therefore did not err in refusing such allowance.

The decree of the Circuit Court will be affirmed.

Affirmed,


author: Mr. Justice Chytraus

text:
    Mary Weyh, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,452.
    1. Pebsonal injuries—-when restriction of cross-examination erroneous. If upon direct examination evidence has been adduced tending to show that fatty tumors resulted from an accident, it is reversible error to refuse to permit a question upon cross-examination the answer to which might tend to show that such tumors were not the result of such accident.
    2. Evidence—when medical books incompetent. So long as a witness testifying has not assumed to base his opinion upon the authority of a particular author, the opinion of such author as expressed in his treatise (even if such opinion so expressed is examined by the witness), is incompetent.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. M. W. Thompson, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed and remanded.
    Opinion filed April 20, 1909.
    William J. Hynes and Watson J. Ferry, for appellant; John E. Harrington, of counsel.
    John A. Bloomingston, for appellee.
   Mr. Justice Chytraus

delivered the opinion of the court.

Mary Weyh, appellee, brought suit against appellant for personal injuries and recovered a judgment. Appellant prosecutes this appeal to reverse that judgment. Appellee’s charge of negligence is that she was riding on appellant’s car going north on Wabash avenue and, after the car had stopped at the northeast corner of Wabash avenue and 20th street, to let her off, the car started while she was in the act of getting off, by reason whereof she fell and was injured. There is an irreconcilable conflict in the evidence in regard to the stoppage of the car and her getting off. In view of the disposition of the case we are obliged to make, we refrain from, any discussion of the facts in that connection.

At the time of the trial appellee had two fatty benign tumors, one on the back of her left shoulder and the other on her left side toward the back, which, on her part, it was contended had developed from bruises she received when she fell. These tumors were among the most serious results claimed from her fall. It was contended that they had continued to increase in size from year to year. On the part of appellant it was contended that these tumors, • medically termed lipoma, were not and could not be produced by any injury, or trauma, and, furthermore, that the tumors existed previous to her fall, which would appear from the condition, shortly after her fall, of the places on her body where these tumors were. Appellee’s physician was called as a witness on her behalf. He had been called in the day after she was injured and visited her daily for about two weeks next following and, thereafter, off and on for about four months. Upon direct examination he described her condition when he first called and particularly the condition of the two places where these tumors were. He then said: “They looked traumatous, as if produced by a blow” and that, during the two weeks following his first call, she called his attention to a couple of swellings that “were in the same spots where the bruises and swellings had been the first day that I saw her.” Upon cross-examination appellant’s attorney asked this witness:

.“Q. Assume that these tumors were lipomas before she met with this accident, and then that she had a fall off a street car and bruised them, I will ask you, doctor, if the conditions that you found there on your first visit after this accident, whether they were not the very conditions that you would expect to find if a woman had a lipoma and got it bruised?”

This question was objected to by appellee’s attorney and the court sustained the objection, saying: “It is not cross-examination. ’ ’ We think the trial judge clearly erred in refusing to permit an answer to he made to that question. Appellee’s attorney had, in his direct examination, skillfully obtained from the witness a description of the two places in question as contusions, bruises and swellings without a word being uttered as to whether or not they were or had the appearance of being then existing tumors. Obviously the question asked was proper cross-examination in this connection. Manifestly substantial error was committed in not permitting appellant’s attorney to demonstrate, if he could, upon cross-examination of appellee’s own physician, who examined her the day after her injury, that the tumors she complains of existed then. The fact that they existed then, if such is the fact, would go a long way toward demonstrating that they were not the result of her fall the day before. Fatty tumors probably do not grow in a day so as to be perceptible.

Another error, of substance, intervened in the trial below. Our Supreme Court has spoken plainly on the subject of the admission of medical or other scientific books in evidence before a jury. They are not admissible in evidence. City of Bloomington v. Schrock, 110 Ill. 219. In that case it was also said that the weight of current authority is against allowing such treatises to be read from to contradict an expert, generally. An exception to this general rule was, however, recognized there, in this that where an expert assumes to base his opinion upon a particular author’s book, that book may be read in evidence to contradict him. At the trial appellant called two physicians who testified that, in their opinion, the tumors in question were not and could not be occasioned by trauma. In their direct examination there was no reference to any medical work or to any writer on any medical subject. Yet on the cross-examination of both these witnesses, over objections which were overruled, they were permitted to answer as to differing in opinion on this subject from various named medical writers. Furthermore, appellee’s attorney, in cross-examination, was, over objection, permitted to submit to the witnesses medical books and examine the witnesses as to whether the theories expressed therein were not at variance with the expressed opinions of the witnesses. Appellee’s attorney, over objection, was also permitted to read to the court and jury from a medical work on the ground, as the court (treating it as asking a question) expressed it, after ruling to that effect: “He ■has a right now, after the doctor has examined it, to ask that question.” We fail to see that it makes any difference, upon the non-admissibility of opinions expressed by medical writers, whether the particular witness has examined the book wherein the opinion is expressed. As to the writer whose opinion is read there has been no opportunity of cross-examination and that is sufficient to exclude his opinion from the jury, so long as the witness testifying has not assumed to base his opinion upon the authority of the particular author. For the errors referred to which were most prejudicial in their nature the judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


text:
    City of Chicago, Appellee, v. Herman Piehl, Appellant.
    Gen. No. 14,460.
    Municipal cobpobations—when license ordinance does not unlawfully discriminate. Held, that the license ordinance involved and set forth in Johnson Express Co. v. Chicago, 136 Ill. App. 368, does not unlawfully discriminate between persons of the same class and in the same occupation.
    Action of debt. Appeal from the Criminal Court of Cook county; the Hon. Geobge A. Dupuy, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed April 20, 1909.

      Statement by the Court. The city of Chicago recovered a judgment in the Criminal Court of Cook county against Herman Piehl for $10, in an action of debt. Piehl prosecutes this appeal to reverse that judgment. He was found guilty of violating sections 2325, 2326, 2331, 2332 and 2346 of Article 3 of the Revised Municipal Code of Chicago of. 1905. The sections in question are set forth at length in Johnson Express Co. v. Chicago, 136 Ill. App. 368. At the trial it was stipulated the defendant, Piehl, was a common carrier; that in his business as- such he owned and used vehicles drawn by horses; that he had no such license as was required by the above enumerated ordinances and that he paid the general taxes on these vehicles and horses.
    Jambs A. Brady, for appellant.
    George H. White, for appellee; Henry M. Seligman, of counsel.
   Mr. Justice Chytraus

delivered the opinion of the court.

It is conceded that the city had the power to pass the ordinances in question, as was held by this court in Hastings Express Company v. Chicago, 135 Ill. App. 268. In Harder’s Storage Co. v. Chicago, 235 Ill. 58, the Supreme Court of this state held that the city of Chicago had the power to impose a license or tax upon vehicles using its streets. By the three cases referred to the law is settled that, so far as these ordinances operate, the city of Chicago has the power to tax the occupation involved and the vehicles.

It is contended that the ordinances unlawfully discriminate between persons of the same class and persons in the same occupation. We fail to see any such discrimination. What is in argument said respecting the lack of provision in' the ordinances for a transfer of the owner’s license in ease of his quitting the business by sale of Ms vehicles or otherwise, has no pertinency, so far as we can see.

It is argued, also, that a renter or borrower of a vehicle, who might desire to use it as a public cart, is not provided for by the ordinance and, therefore, discriminated against and, while a person in the same class or occupation as is an owner, precluded from pursuing the occupation of a carter. This argument is based on the theory that because he does not own the vehicle he cannot procure a license for it.- Counsel is in error in this theory. - In the Hastings case supra it was said: “For the time of the leasing these teams were owned by * * * the users.” It is a fundamental and well known doctrine that the renter ^or borrower of an article of personal property has a qualified ownership therein. For the time being he is such owner that he is entitled to obtain a license under these ordinances by complying with their requirements in respect to issuance of licenses. ' Such renter or borrower is not deprived of his right to labor or of contracting for his labor in a lawful occupation. An employe or driver can rightfully be required to pay a tax upon Ms occupation according to the authorities cited above and, consequently, there is nothing unlawful in the ordinances in that respect. The owner, when he drives for Mmself, pays upon the public cart and upon his occupation. Any provision to the contrary would be unjust to the employe driver and also to the owner not driving. We find the judgment of the learned trial judge perfectly proper and the judgment is affirmed.

Affirmed.