author: Mr. Presiding Justice Matchett

text:
    Mate Niles, Appellant, v. Marshall Field & Company, Appellee.
    Gen. No. 25,047.
    1. Pleading, § 389

      —what is effect of plea of general issue. In an action against a corporation to recover damages for an assault, where defendant’s theory is that the one committing the assault was not its servant, such relationship being of the gist of the action is denied by a plea of the general issue.
    2. Corporations, § 478*—when corporation is not liable for acts of police officer. A special patrolman appointed by the superintendent of police under the authority given by Municipal Code of Chicago and employed and paid by a detective agency, to which he reports and from which he takes his orders, is not an employee of the corporation in the store of which he is stationed and performs detective services under a contract between the corporation and the agency for such services, for which the corporation pays the agency, and the corporation is not liable for an assault committed by the officer in apprehending on its premises one whom he suspects has stolen its property, such assault having been committed without the direction or knowledge of the corporation.
    3. Corporations, § 478*—when evidence is insufficient to show agency of person committing assault. In an action against a corporation to recover damages for an assault committed by a special patrolman stationed on its premises, evidence held not to show cooperation between such patrolman and employees of defendant in committing the assault making defendant liable therefor.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baud win, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed April 30, 1920.
    Morse Ives and H. E. Wynekoop, for appellant.
    Landon Ss Holt, for appellee.

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

   Mr. Presiding Justice Matchett

delivered the opinion of the court.

The plaintiff appeals from a judgment for defendant entered upon a verdict of a jury. The jury were instructed by the court to find for the defendant at the close of all the evidence.

The declaration of plaintiff alleged that while she was in defendant’s store “the defendant then and there assaulted the plaintiff, and seized and laid hold of her and with great force and violence pulled and dragged her about in said building, and threw her into a certain elevator there with great force and violence,” etc., to her injury, etc. In a second count it was charged that the defendant had wilfully and wantonly assaulted the plaintiff. The defendant filed a plea of the general issue.

The theory of the plaintiff, as developed by the evidence, was that the alleged assault was made by a house detective in defendant’s store who was defendant’s servant in that behalf.

The plaintiff testified that on the 4th of September, 1915, as she was about to leave the defendant’s store “a man suddenly and violently grabbed me there by the left arm. He did not say anything to me right at the time. He whirled me around violently and started to push me ahead of him toward the elevators. I then said, ‘Who are you? What do you want? You don’t know me, let me go.’ He said, ‘I will show you. You will not get away from me. I am an officer, a house detective of Field’s. You will not get away from me.’ ” She further says she was rushed to the elevator and thrown into it. She was then taken to the third floor and an employee named “George” was called and the party seizing her told “George” that plaintiff had stolen a sweater and given it to another woman, that the other woman in the car spoke up and said plaintiff was not the woman who had given her the sweater, whereupon the man at the door of the elevator told the detective he had made a mistake, and to let plaintiff go, which he did.

The theory of the defense is that the house detective who made the arrest of plaintiff was not its servant, that his relationship to the defendant at the time in question was not such as to make the doctrine of respondeat superior applicable. The plaintiff not only argues to the contrary but further claims that this defense could not be raised under the general issue. She also contends that the detective was aided and abetted by other servants of the defendant acting within the scope of their employment, and the defendant is therefore liable by reason of the participation of these servants in the assault. We do not think that it was necessary to plead specially that the detective was not the servant of defendant. In the case of Chicago Union Traction Co. v. Jerka, 227 Ill. 95, cited by appellant and other cases which have followed that decision, it was held in substance that mere matters of inducement in a declaration must be put in issue by special pleas, and that they are not raised by pleading the general issue. But in this case the relationship of defendant to the house detective who arrested the plaintiff was not mere matter of inducement. It was of the gist of the action and it was therefore denied by the plea of the general issue.

The evidence on this issue is uncontradicted. Section 1921 of the Municipal Code of Chicago is as follows:

“Special patrolmen for special duty: He (the general superintendent of police) shall have .power, on the application of any person or persons showing the necessity therefor, to appoint and swear in any additional number of special patrolmen to do special-duty at any fixed place within the city, at the charge and expense of the person or persons by whom the application is made, and shall keep a correct list of all persons so appointed. He shall issue a special certificate of appointment to each of said special patrolmen and shall, upon receiving a deposit sufficient to cover the cost thereof, provide them with suitable badges which shall be worn by them while on duty, and be returned to said general superintendent upon the termination of their appointment.”

The so-called detective, one Bolands, produced his commission which was as follows:

“Appointment of special police, Chicago, May 20, 1904. I hereby appoint Frank Bollins as special po- ‘ lice upon the recommendation of Thomas McGuire to serve as such special police officer at premises known as Marshall Field & Co., H. G. Selfridge & Company, Siegel Cooper & Company, Boston Store, Carson, Pirie, Scott & Company, Bothschild & Company, Burley & Company.”

This commission was signed by the superintendent of police.

Bolands further testified that he had been in the police service 21 years during which time he worked at Field’s; that he was sworn in as a police officer at Cicero, and was with a detective agency before that; that he was a special police officer in September, 1915, stationed at Marshall Field’s retail store at the corner of Washington and State streets; that he reported to Thomas McGuire, the principal of the McGuire & White ^Detective Agency. “I did not report my acts and doings to any one in Marshall Field & Company’s store and did not take orders from any one there.” That he received orders as to what to do from the chief of police at the time of Chief O’Neil; that he did general police work in the store and did not do anything else; that he looked after pickpockets and shoplifters which was general police work; that McGuire & White’s detective agency paid him for his time; that he did not arrest any one on information from any employee of Field’s; that if he received such information he would follow them himself until -he saw them steal something; that when he arrested any one he would call up McGuire & White’s agency and report to them, This evidence with other uncontradicted evidence offered tended to show that Bolands was in the employ of the detective agency, was paid by it for his services and that Marshall Field & Company by- contract .with the agency paid the agency for these detective services in its store, and to such an amount that the detective agency derived profit from the arrangement, and that the agency, by reason thereof, was liable for any acts of said Bolands and controlled his actions.

It is the contention of appellant that if Bolands was not defendant’s servant, he, at least, carried on his work with agents and servants of defendant, so as to make defendant liable, or at any rate it was a question for the jury whether Bolands was the servant of the defendant.. If there was any evidence from which the jury could reasonably find that Bolands was the employee of defendant and acting within the scope of his employment at the time of plaintiff’s arrest then it would be a question for the jury. However there is no contradiction in the evidence bearing on that point. We think this evidence shows Bolands was not the servant of the defendant.

The law applicable to such a state of facts was announced by Judge Baker in a discussion of similar facts in the case of Adler v. White City Const. Co., 147 Ill. App. 20. Upon a review of the authorities it was there held that a defendant corporation was not responsible for acts of policemen committed without the knowledge or direction of any agent or officer of the defendant corporation and that the appointment of the two policemen by the superintendent of police at Chicago (although it was made at the request of the defendant and although defendant paid them for their services as policemen) did not make the policemen the servants of the defendant. Tolchester Bench Imp. Co. v. Steinmeier, 72 Md. 313; Healey v. Lothrop, 171 Mass. 263; Newell Malicious Prosecutions, sec. 81. The reason for the rule is that a policeman with respect to Ms official duties is not subject to the order of any other than his official superior. The party whose business is protected by him cannot control him nor discharge him nor require the performance of any duty by him. The authorities are collected in a note to McKain v. Baltimore & O. R. Co., 65 W. Va. 233, 23 L. R. A. (N. S.) 289. See also note to Moss v. Campbell’s Creek R. Co., 75 W. Va. 62, 55 L. R. A. (N. S.) 1183.

We think, therefore, under the evidence and the law Rolands was not the servant of the defendant and the doctrine of respondeat superior is not applicable to this case. Nor do we think the evidence in this record indicates such co-operation between Rolands and the employees of the defendant as to make defendant liable. It is suggested that this liability might be inferred from the conduct of the elevator man and the superintendent, George Tumow. The evidence of the plaintiff, however, shows that Peterson, the elevator man, did not detain her against her will. On the contrary she testified that she clung to him asking for protection. Nor does her evidence indicate that George Tumow, the superintendent, so participated, for she says that he at once told Rolands to let her go.

We think the court properly directed a verdict and the 'will be affirmed.

Affirmed.

Mr. Justices Barnes and Gridley concur.


source: Caselaw Access Project

license: Public Domain

text:
    Superior Plating Works, Appellant, v. Art Metal Crafts Company, G. Albin Nilson, Garnishee, Appellee.
    Gen. No. 25,056.
    1. Garnishment, § 24

      —what property subject to garnishment. Following the decisions of the secon.d branch of the- Appellate Court, held that goods purchased without complying with the provisions of the Bulk Sales Act, Callaghan’s 1916 Stat. If 10021(1), et seq., may be reached by creditors of the vendor in the hands of the purchaser through process of garnishment.
    2. Words and phrases—“Creditor” defined. In its broad sense the word “creditor” means one who has any legal liability upon a contract, express or implied, or in tort; in its narrow sense, the term is limited to one who holds a demand which is certain and liquidated.
    3. Fraudulent conveyances, § 15*—how Bulk Sales Law is construed. The Bulk Sales Law [Callaghan’s 1916 Stat. If 10021(1) et seq.] is in derogation of the common law and should be strictly construed.-
    4. Fraudulent conveyances, § 15*—when Bulk Sales Law does not apply. The Bulk Sales Law [Callaghan’s 1916 Stat. If 10021(1) et seq.] does not apply to persons holding claims in tort.
    5; Fraudulent conveyances, § 15*—what claims are not within Bulk Sales Law. The Bulk Sales Law [Callaghan’s 1916 Stat. If 10021(1) et seq.] does not apply to one holding an uncertain, unliquidated and contingent claim arising out of a breach of a contract for the sale of goods.
    Appeal from the Municipal Court of Chicago; the Hon. Hush R. Stewart, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed April 30, 1920.
    Howe, Fordham & Kreamer, for appellant; Albert C. Fordham, of counsel.
    Ben M. Smith and John L. Davidson, for appellee G. Albin Nilson, Garnishee.

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

   Mr. Presiding Justice Matchett

delivered the opinion of the court. ■

On the first day of April, 1918, a judgment for $1,055 in favor of the Superior Plating Works, a corporation, and against the Art Metal Crafts Company was entered by the municipal court of Chicago. The statement of claim shows that the suit was for damages for the failure of the defendant to deliver certain hot rolled tubing, annealed which defendant had agreed to do not later than June 30, 1917. It also claimed damages for defects in certain quantities of this tubing which had, in fact, been delivered. Execution, was issued and returned “No property found,” and thereafter on June 10, 1918, the judgment creditor caused a suit in garnishment to be brought, summoning G-. A. Nilson as garnishee. He answered denying that at the time of the service of the writ he had any money or property of the judgment debtor in his possession. The answer was contested and on the hearing he was discharged.

■ It appears from a stipulation of the parties that on December 20, 1917, the judgment debtor sold “substantially its entire stock of merchandise” to the garnishee Nilson, but not in the ordinary course of business; that the garnishee did not require the Art Metal Crafts Company to comply with the provisions of the Bulk Sales Law, and that at the time of the service of the garnishment writ and at the time of filing an answer thereto, Nilson had in his possession a portion of these goods thus obtained which were of the value of $1,250.

The court held on trial without a jury that the garnishee creditor could not recover, and entered judgment for the garnishee. Appellant contends this was error and it is claimed that this court has twice decided heretofore in similar cases that goods purchased without complying with the provisions of the Bulk Sales Act may be reached by creditors of the vendor in the hands of the purchaser through process of garnishment. It seems to have been so held by the second branch of the Appellate Court for this district in Cohn v. Malo, 198 Ill. App. 538, and in La Salle Opera House Co. for use of Goes Lithographing Co. v. La Salle Amusement Co., 212 Ill. App. 621. This last-named case was reversed by the Supreme Court, La Salle Opera House Co. v. La Salle Amusement Co., 289 Ill. 194, but not, apparently, because of any error in this holding. •

While :if the question were an open one we might have doubt as to whether garnishment would lie in such a case (Hibernian Banking Ass’n v. Morrison, 188 Ill. 279; Supreme Sitting Order of Iron Hall v. Grigsby, 178 Ill. 57), we are disposed in the absence of a ruling by the Supreme Court to follow the decisions of the second branch hereinbefore cited.

Appellee, however, further contends that the judgment should be affirmed for the reason that at the time of the sale the plaintiff appellant was not “a creditor” within the meaning of the Bulk Sales Law. Appellant contends that when the contract sued on was violated by the nondelivery of goods according to the contract, June 30, 1917, the "appellant became a creditor within the meaning of the act; that it was, therefore, a creditor on December 20, 1917, at the time the transfer in question was made.

It is apparent if the word creditor is to be taken in the broad sense in which it is sometimes used, as applying to any legal liability that may have been incurred upon a contract, express or implied, or in tort, then appellant was at said time a creditor within its meaning. On the other hand, if the word is to be construed in the limited sense in which it sometimes is used, as applying only to one who holds a demand which is certain and liquidated, then appellant was not a creditor within its meaning. Steele-Wedeles Co. v. Shoodoc Pond Packing Co., 153 Ill. App. 576; Capes v. Burgess, 135 Ill. 61.

The Bulk Sales Law is in derogation of the common law and therefore should be strictly construed as to its application. We think it clearly should not be applied-to parties holding claims in tort, and the samé reasoning’ would lead us to conclude that the holder of a claim, such as this one, which was uncertain, unliquidated and contingent, would not be a creditor within the meaning of the act. To hold otherwise would give to claimants possessing uncertain and speculative demands a power to harass and interfere with the business of person's against whom such claims are made, which we think could not have been within the intention of the legislature. This construction is, as it seems to us, not only reasonable but in harmony with the construction placed upon a similar law by the courts of New York. Apex Leasing Co. v. Litke, 173 N. Y. App. Div. 323, 159 N. Y. Supp. 707.

The judgment will therefore be affirmed.

Affirmed.

Mr. Justices Barnes and Gridley concur.


author: Mr. Justice Barnes

text:
    Louisa W. Steen, Appellant, v. Modern Woodmen of America, Appellee.
    Gen. No. 25,140.
    1. Insurance, § 822

      —what is interest of beneficiary. The beneficiary named in a certificate of insurance issued by a fraternal organization has no vested interest in the certificate.
    2. Insurance, § 747*—lohen by-laios of fraternal order maybe changed. Where the contract between a member of a fraternal insurance society and the society reserves the right to the latter to amend or change the by-laws, and the member agrees to be bound thereby and accepts the certificate under such conditions, subsequently enacted by-laws are binding upon him.
    3. Insurance, § 7.46*—when by-law is not uncertain. The bylaw of a fraternal insurance organization which clearly provides that where there is not proof of aqtual death, no presumption of death shall arise by reason of a member’s continued absence, unheard from, until the full term of his expectancy of life has expired, is not void as uncertain, unreasonable or against public policy.
    4. Insurance, § 890*—what evidence is admissible to establish death. A by-law of a fraternal insurance order which provides that no lapse of time, absence or disappearance of a member shall entitle his beneficiary to recover the amount of his certificate "without proof of the actual death’’ of such member, does not necessarily exclude circumstantial evidence in connection with such disappearance.
    5. Constitutional law, § 95*—vested right in rule of evidence, No one has a vested right in a rule of evidence.
    6. Appeal and error, § 426*—when demurrer is necessary to attach plea. In the absence of a special demurrer, the Appellate Court need not discuss criticisms relating to the form of a plea.
    Appeal from the Superior Court of Cook county; the Hon. Joseph H. Pitch, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed April 30, 1920.
    Vincent D. Wyman, Harry C. Kinne and Charles E. Carpenter, for appellant.

      Truman Plantz and George V. McIntyre, for appellee.

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

   Mr. Justice Barnes

delivered the opinion of the court.

This is a suit to recover on a certificate or policy of insurance whereby appellee, a fraternal organization, insured the life of Albert F. Steen, and promised to pay at his death to his wife, the appellant, $2,000, subject to the conditions mentioned therein. Copies of the certificate and application of the member are made part of the declaration, the former stating that it is issued in consideration of the warranties and agreements in the application, and the latter that the applicant agrees “to conform in all respects to the laws, rules and usages of the Order now in force, or which may hereafter be enacted and adopted by the same. ’ ’

The declaration is predicated on the presumption of the applicant’s death after an alleged unexpected disappearance and absence for 7 years, there being averments of a diligent and fruitless search and inquiry .to find or locate him.

Appellee specially pleaded the terms of the contract, embracing said certificate, application, and bylaws of the Order, including the following amended by-laws duly adopted by appellee nearly 2 years prior to the disappearance of said insured:

“Sec. 64. Action on certificates must be brought within eighteen months. No action for recovery on a death claim based upon any benefit certificate heretofore or hereafter issued by this society can or shall .be maintained until after the proofs of death and claimant’s rights to benefits, as provided in these bylaws, shall have been filed with the head clerk and passed upon by the board of directors, nor unless brought within eighteen months from the date of death of the member.”

“Sec. 66. Disappearance No Presumption of Death. No lapse of time or absence or disappearance on the part of any member heretofore or hereafter admitted into the society without proof of the actual death of such member, while in good standing in the society, shall entitle his beneficiary to recover the amount of his benefit certificate, except as hereinafter provided. The disappearance or long continued absence of any member unheard of shall not be regarded as evidence of death or give any right to recover on any benefit certificate heretofore or hereafter issued by the society until the full term of the member’s expectancy of life, according to the National Fraternal Congress Table of Mortality, has expired within the life of the benefit certificate in question, and this law shall be in full force and effect, any statute of any state or country or rule of common law of any state or country to the contrary notwithstanding. The term, 'within the life of the benefit certificate,’ as here used, means that the benefit certificate has not lapsed or been forfeited, and that all payments required by the by-laws of the society have been made.”

The plea averred that proof of the actual death of said Albert F. Steen had, therefore, never been furnished to defendant, and the expectancy of life of said Albert F. Steen according to said table of mortality has not expired.

To this plea a general demurrer was filed and overruled. Plaintiff elected to stand by her demurrer, thus raising the question whether the subsequently adopted by-laws as aforesaid are valid and binding upon appellant.

It is settled beyond controversy that the beneficiary in such a case has no vested interest in the certificate, and that where the contract between a member and the society reserves the right to the society to amend or change the by-laws, and the member agrees to be bound thereby and accepts the certificate under these conditions, subsequently enacted bylaws are binding upon him. (Apitz v. Knights & Ladies of Honor, 274 Ill. 196; Royal Arcanum v. McKnight, 238 Ill. 349, and cases there cited.)

But appellant urges that the by-law is void for uncertainty and unreasonableness and as against public policy. We think none of these contentions is tenable. The unmistakable purpose and meaning of said section 66 is to substitute for the common-law rule of evidence which presumes the death of a person after his continued absence, unheard from, for a period of 7 years, proof of his actual death, and that there shall be no liability under the common-law rule alone until the full term of the member’s expectancy of life, according to the National Fraternal Congress Table of-Mortality, has expired within the life of the benefit certificate. There is no uncertainty in the meaning of said by-law. It very clearly provides that where there is not proof of actual death, no presumption of death will arise until the full term of the member’s expectancy of life has expired as aforesaid. Appellant’s contention that the word “actual,” as used in the by-law, does not add to the meaning of the word “death,” as used therein, ignores the difference between sole reliance upon the common-law rule of presumptive death and the requirement of evidence tending to prove actual death, which does not, as appellant seems to assume, necessarily exclude circumstantial evidence connected with such disappearance. In fact plaintiff recognizes the distinction by pleading that the member “was presumed by law to be dead.”

Nor is the substituted requirement of proof of actual death unreasonable, for cases are not infrequent where a member appeared to be alive after a suit was brought predicated on his death. (Modern Woodmen of America v. Binder, 211 Ill. App. 659; Aldridge v. Brotherhood of American Yeomen, 154 Mo. App. 700, 136 S. W. 31; Caldwell v. Modern Woodmen of America, 90 Kan. 175, 133 Pac. 843.) Not only is the reasonableness of the substituted rule sustained by high authority (2 Greenleaf, sec. 278-E), but its validity lias- been upheld in other jurisdictions. (Kelly v. Catholic Mutual Benefit Ass’n, 46 N. Y. App. Div. 79, and McGovern v. Brotherhood of Firemen & Engineers, 21 Ohio Cir. 243, cited with approval in Apitz v. Knights & Ladies of Honor, 274 Ill. 196; Cobble v. Royal Neighbors of America (Mo. App.), 219 S. W. 118, and Porter v. Home Friendly Society, 114 Ga. 937, 41 S. E. 45.) The validity of even more drastic provisions in by-laws passed subsequent to the issuing of the benefit certificate has been upheld. We need not refer to the cases. Some of them are mentioned in the Apitz case, supra. Generally speaking, such provisions, if not unreasonable or against public policy, are considered from the viewpoint of a rule of evidence with respect to which parties have a right to contract. It is settled law that no one has a vested right in a rule of evidence. The only difference between the common-law rule and the by-law in question is that the presumption in the former arises at the end of 7 years and in the latter at the end of the member’s expectancy. Some cases are cited by appellant where the by-law was passed after the member’s disappearance. What was said therein respecting such a situation clearly has no application to a- by-law passed before the member’s disappearance.

In the absence of a special demurrer we need not, of course, discuss appellant’s criticisms of the plea relating to mere matters of form. We think the averments of fact therein were sufficient to state • a legal defense, and that the by-law is not in contravention of any public law nor against public policy. In fact most of appellant’s contentions are fully answered by the Apitz case, supra.

The judgment will be affirmed.

Affirmed.

Mr. Presiding Justice Matchett and Mr. Justice Gridley concur.


text:
    The People of the State of Illinois for use of Max Hodash, Appellee, v. John E. Traeger et al., Appellants.
    Gen. No. 25,755.
    1. .Execution, § 77

      —lohat officer may levy. The bailiff of the Municipal Court of Chicago may levy, under a senior execution issued on a judgment of that court, on and take property held by the sheriff under a junior execution issued on a judgment of the circuit court.
    2. Execution, § 65*—when lien of execution has priority. Executions become liens upon personal property of the judgment debtor when delivered to the officer for service,- and when the property has already been seized under one execution, and several executions, whether issued out of the same court or delivered to the same officer or not, come ultimately into the hands of such levying officer before he makes a sale under the levy, he is bound to recognize the priority of the executions in the order in which they were delivered for service.
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Reversed and remanded.
    Opinion filed April 30, 1920.
    Thompson, Tyrrell & Chambers, for appellants.
    Edelson & Tannenbatjm, for appellee.

      ♦See Illinois Notes Digest, Vols, XI* to XV, and Cumulative Quarterly, game topic „ and septipn number,

   Mr. Justice Barnes

delivered the opinion of the court.

This is an action of debt, brought against the sheriff of Cook county and his bondsmen, the declaration alleging a disregard of duty in the failure of the sheriff to pay over to the beneficial plaintiff, Max Hodash, the net proceeds of the levy and sale of personal property made by the sheriff by virtue of an execution issued upon a judgment of the circuit court of Cook county in favor of said Hodash. A general demurrer to defendants’ special plea was filed and sustained. Defendants elected to stand by their plea, which set forth the following facts, all transpiring in the month of June, 1918:

On June 6 a judgment in favor of Hodash against I.' J. Share and others for $617.80 was rendered in the circuit court of Cook county. On June 7 a judgment in favor of Thompson & Company, a corporation, was rendered in the municipal, court of Chicago against said I. J. Share for $451.86, and on the same date execution thereon was issued and delivered to the bailiff of said court for service. On June 10 an execution was issued on the circuit court judgment and was delivered to the sheriff and levied by him on personal property of said I. J. Share, situate in the City of Chicago. On June 11 a copy of the municipal court execution was handed to the sheriff by said company at the request of said bailiff with the direction and request that he apply the first proceeds of the levy and sale then being advertised under the circuit court execution to the municipal court execution. On June 20 the property was sold. The net proceeds, after deducting the costs and expenses, were $386.20, insufficient to satisfy either judgment in full, which was paid to Thompson & Company in partial satisfaction of its fi. fa., so held by said bailiff, on which the sum so paid was credited.

The main question presented and argued-is whether under such a state of facts the sheriff could lawfully recognize the municipal court execution. Under section 9, ch. 77, Hurd’s Rev. St. (J. & A. If 6755) each execution unquestionably became a lien on said personal property when it was so delivered for service. But appellee contends that the municipal court execution was ineffective without a levy thereunder, and that it was the duty of the bailiff to make a levy under it, it being the senior execution, and take from the sheriff the property he held under the junior execution. That the bailiff might have done so is held in Hanchett v. Ives, 133 Ill. 332. But that he had such right does not settle the question of priorities under a state of facts as here, where, without exercising such right his execution, or a copy thereof, was handed before the sale to the officer who had already seized the property under another execution. We have examined the various authorities cited, but none of them presents a case wherein this precise state of facts arose. Both parties cite the case of Rogers v. Dickey, 6 Ill. (1 Gilm.) 636, which, as said in the Hanchett case, is understood to state the law of this state “as settling the rights of parties under executions issued from the various courts of this State, whether in the hands of the same or different officers.” In the Rogers case it was said:

“The doctrine.is, therefore, well settled in England, which this court is inclined to adopt: First, that where two or more writs of fi. fa. are delivered at different times, either to the same or different officers, and no sale is actually made of the defendant’s goods, the execution first delivered must have the priority, though the first seizure may have been made on a subsequent execution.”

And it was said in Leach v. Pine, 41 Ill. 65:

“When a sheriff has in his hands an execution, and levies upon property and reduces it into possession, he then has it in the custody of the law, and it is not essential to the lien of other executions in his hands at the time, or subsequently received, that they should be levied. The discharge of such a levy by the plaintiff in execution, or by the payment of the execution by the defendant, would not, in the least, change the liens of the executions in the hands of the sheriff and not levied.”

This view of the law and construction of section 51, ch. 77, Hurd’s Rev. St. (J. & A. 6798) was recognized in Tanton v. Slyder, 93 Ill. App. 455, where in' estimating what were the proper elements of damages to the sheriff from whom personal property was replevied after he had levied on the same under a circuit court execution, it was said:

“The record shows that two executions from justices of the peace were issued upon valid judgments. Had. the sheriff retained the property and made sale of it, he would have had to first pay the execution from the justice of the peace, which was prior to his own. He would next have paid his own execution and then he must have paid the execution from the other justice, which was a lien, and had been levied on a portion of the property. Bev. St. eh. 77, sec. 51. The last execution was in fact a lien on all the property subject to the two former executions, even if no levy had been indorsed upon it.”

Appellee calls attention to the fact that in the latter case the deputy sheriff and the constable were one and the same person, but the decision dealt with the officer in his capacity as sheriff only. Nor do we think the dual relation of the officer would affect the principle and policy of the law as above interpreted and broadly laid down in the language above quoted from the case of Rogers v. Dickey. As we understand the statute so interpreted, the executions become liens upon personal-property of the judgment debtor when delivered to the officer for service, and that when the property has already been seized under one execution, and several executions, whether issued out of the same court or delivered to the same officer or not, come ultimately into the hands of the officer making such levy before making a sale thereunder, he is bound to recognize the priority of such executions in the order in which they were delivered for service. We therefore think the court erred in sustaining the demurrer.

Accordingly the judgment will be reversed' -and the cause will be remanded.

Reversed and remanded.

Mr. Presiding Justice Hatchett and Mr. Justice Gridley concur.


author: Mr. Justice Gridley

text:
    George A. Hutchinson, Appellee, v. John J. Garrity, General Superintendent of Police of City of Chicago, Appellant.
    Gen. No. 25,094.
    Theaters and shows, § 3

      —when refusal to permit exhibition of moving picture will be sustained. On appeal from a judgment, rendered upon the verdict of a jury, ordering the issuance of a peremptory mandamus commanding the superintendent of police of the City of Chicago to grant petitioner a permit to exhibit publicly a certain moving pcture, held, after viewing the picture which was shown on a screen by the use of the films thereof filed as exhibits below which had been transmitted to the Appellate Court, that the finding that the defendant did not exercise his official discretion honestly and fairly in refusing the permit and that there was no reasonable basis for the censor’s judgment against the granting of the permit, was not supported by the evidence, and it was found that certain scenes therein were immoral and of an immoral nature and such as would tend to produce a harmful influence upon the minds of children.
    Appeal from the Superior Court of Cook county; the Hon. Joseph H. Fitch, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Reversed with finding of facts.
    Opinion filed April 30, 1920.
    Statement hy the Court. This is an appeal from a judgment of the superior court of Cook county, rendered January 18, 1919, upon the verdict of a jury, ordering the issuance of a peremptory writ of mandamus, commanding John J. Garrity, General Superintendent of Police of the City of Chicago, to grant to the petitioner, George A. Hutchinson, a permit to publicly exhibit within said city the moving picture or photoplay “Protect Tour Daughters,” upon the payment of the usual fee required for similar permits.
    In the petition for the writ, filed June 7, 1917, it is alleged, in substance, that petitioner is- the owner of and controls certain pictures which are commonly exhibited to the public by means of automatic or moving picture devices, in theaters and places of amusement in the City of Chicago; that in particular he is the owner (to the extent of the right and interest to publicly display the same in said city and derive all proceeds therefrom) of a certain photoplay, known as “Protect Tour Daughters”; that on or about June 2, 1917, he applied to the then general superintendent of police, of said city, Herman L. Schuettler, and to the then second deputy superintendent of police, M. L. C. Funkhouser, as provided by law, for a written permit to publicly exhibit said photoplay in said city, and in obedience to the provisions of certain ordinances of said city submitted said photoplay to said Schuettler and Funkhouser, the duly constituted moving picture censor authorities, and the same was then and there exhibited to said Funkhouser, and on the same day he tendered the required permit fee; that said Schuettler and Funkhouser refused to accept the permit fee, and refused, and still refuse, to issue to petitioner a written permit to publicly exhibit said photo-play in said city; and that said photoplay “was and is not immoral or obscene, and'did not, nor does it have a tendency to disturb the public peace, nor was it nor is it indecent or a lewd picture, or a picture of an immoral or scandalous nature, nor did it represent nor does it represent a person in a nude state, nor is it nor was it an indecent, immoral or lewd play or other representation.” Certain ordinances of the City of Chicago were attached to the petition as exhibits and made a part thereof.

      A general demurrer to the petition was overruled by the court and subsequently Schuettler filed an answer to the petition in which he alleged, inter alia, that “said picture is immoral and obscene * * * and is indecent and lewd and of an immoral a.nd scandalous nature.” Subsequently John J. Garrity was substituted as party defendant in place of Herman L. Schuettler.
    At the commencement of the trial, January 2, 1919, it was admitted by the attorney for the respondent that there was an ordinance of said city in force and effect at the time of the application for said permit by which the second deputy superintendent of police was charged with the duty of censoring motion pictures, and that said official then had deputies or assistants to aid him in such work; that the motion picture, known as “Protect Tour Daughters,” was presented to the general superintendent of police in proper manner and a permit asked for; that the picture was taken to the projecting room of said second deputy superintendent as the ordinance provides, that the same was there exhibited and officially censored and that a permit was refused. Thereupon the court and jury and respective counsel of the parties retired to said projecting room, where said picture was exhibited and viewed by the court and jury. After the return to the court room the attorney for petitioner introduced in evidence the several ordinances referred to in the petition. Sections 1627 and 2024, as amended, of the Chicago Code of 1911 provide:
    “1627. If a picture or a series of pictures, for the showing or exhibition of which an application for a permit is made, is immoral or obscene, or portrays any riotous, disorderly or other unlawful scene, or has a tendency to disturb the public peace, it shall be the duty of the general superintendent of police to refuse such permit; otherwise it shall be his duty to grant such permit,”

      “2024. It shall be unlawful for any person to exhibit, sell or offer to sell or circulate or distribute any indecent or lewd book, picture or other thing whatever of an immoral or scandalous nature, or to exhibit, in any place where the same can be seen from the public highway or in a public place frequented by children which is not connected with any art or educational exhibition, any picture representing a person in a nude state, or to exhibit or perform any indecent, immoral or lewd play or other representation, under a penalty of not less than twenty (20) dollars nor more than one hundred (100) dollars for each offense.”
    Amended ordinance, passed by City Council, July 2, 1914:
    “Section 1. That in all cases where a permit for the exhibition of a picture or a series of pictures has been refused under the provisions of Section 1627 * * * because the same tends towards creating a harmful impression on the minds of children where . such tendency as to the minds' of adults would not exist if exhibited to persons of mature age, the gen-, eral superintendent of police may grant a special permit limiting the exhibition of such pictures or series of pictures to persons over the age of 21 years; * *
    G-eorge A. Hutchinson, the petitioner, testified that Funkhouser told him -that the reason the permit was not granted was that the picture was a “white slave” picture. Mrs. Stuart, a member of the board of censors, testified that Funkhouser’s general instructions to the board of censors had been that “white slave pictures” should be rejected, and that “pictures relating to white slavery, immoral pictures, black-mailing pictures, opium den pictures or smuggling pictures "were not to be passed.” At the conclusion of petitioner’s case the defendant moved that the court instruct the jury to find the issues for the defendant, but the motion was denied.
    On behalf of the defendant, Funkhouser testified in substance that he had reviewed the photoplay in question in his official capacity; that he refused to give a permit for the same because “it was immoral”; that in his office in the-City Hall he had a .conversation with the petitioner; that petitioner wanted to know why the photoplay had been rejected; that he told petitioner that it “was immoral,” and that it “was contrary to the State law and city ordinances”; that he described to petitioner certain scenes in the play which in his opinion were immoral; that there were scenes in the play which showed “a house of prostitution,” and “a girl in the back room of a saloon or dance hall,” and another- scene where some one “was using a needle in a girl’s arm in a railway station”; and that “those are all crimes themselves and if they are crimes they are immoral.”
    At the conclusion of all the evidence the defendant renewed his motion for an instructed verdict but the motion was denied. On January 3, 1919, the jury returned a verdict finding the issues for the petitioner, and they also returned their special findings, upon questions submitted to them by the court, as follows:
    “Did the defendant, at the time he refused a permit for the picture in question, exercise his official discretion honestly and fairly? Answer—No.”
    “Was there a reasonable basis for the censor’s opinion or judgment in refusing a permit for the motion picture in question, after the same had been exhibited to him upon the screen? Answer—No.”
    On the same day, by agreement of counsel the court entered an order that “petitioner’s original exhibits consisting of five reels of films, introduced in evidence, * * * enclosed in a metal box and marked petitioner’s exhibits 1, 2, 3, 4 and 5, be filed with the clerk to be by him certified and transmitted to the Appellate Court for inspection, * * * an inspection of said exhibits * # # being necessary, in the opinion of the court, to a correct decision in the case.” The said exhibits were certified and transmitted to the clerk of this court, and the respective counsel here stipulated that said exhibits are in the same condition as when thrown upon the screen before the court and jury in the trial court.
    Samuel A. Ettelson, for appellant; Morton S. Cressy and Adolph Radnitzer, of counsel.
    Trainor & Trainor, for appellee.

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

   Mr. Justice Gridley

delivered the opinion of the court.

We have viewed the picture or photoplay as thrown upon a screen by the use of said exhibits, and, after such view and a consideration of all the other evidence in the case, we are of the opinion that the judgment should be reversed upon the ground that the verdict and special findings of the jury, and the judgment, are not warranted by the evidence.

In Bloch v. City of Chicago, 239 Ill. 251, it is said (pp. 263-1-5) :

“It has never been questioned that power may be delegated to officers to determine facts, such as whether animals are diseased so as to exclude them from importation; whether meat or food is found upon an inspection to be unhealthy or diseased; whether an assemblage amounts to a riot to be dispersed. There are numerous facts of that kind which must be left to administrative officers, and the ordinance is not invalid because the chief of police must determine the question of fact whether a picture or series of pictures is immoral or obscene. But it.is said that, conceding the power of the legislative body to authorize an administrative officer to determine the question, the ordinance fixes no standard by which it is to be determined. * * * It is doubtless true, as said by counsel, that there are people who differ upon the subject as to what is immoral or obscene. * * * The average person of healthy and wholesome mind knows well enough what the words ‘immoral’ and ‘obscene’ mean and can intelligently apply the test to any picture presented to him. * * * It is presumed that the chief of police, or the mayor, in case of an appeal to him, will perform his duty with reasonable intelligence and in accordance with the generally accepted meaning of the words. If there should be an abuse of power on the part of either the chief of police or the mayor, the ordinance does not prevent an application to a court to compel either officer to perform his duty and issue a permit for a picture which is not immoral or obscene. * * * It is true that pictures representing the career of the ‘James Boys’ illustrate experiences connected with the history of the country, but it does not follow that they are not immoral. Pictures which attempt to exhibit that career necessarily portray exhibitions, of crime, and pictures of the ‘Night Riders’ can represent nothing but malicious mischief, arson and murder. They are both immoral and their exhibition would necessarily be attended with evil effects upon youthful spectators. If the other pictures for which permits were refused were of similar character the chief of police is to be commended for the refusal. ’ ’

In the case of People ex rel. Guggenheim v. City of Chicago, 209 Ill. App. 582, a petition for mandamus was filed to compel the general superintendent of police of said city to grant a permit to exhibit a certain moving picture entitled “Sins of the Sons.” Issue was taken on the facts whether the picture was “immoral” within the meaning of the city ordinances, and whether the respondent had abused the power vested in him in refusing a permit. The lower court, in a trial without a jury, found the issues for the petitioner, but this branch of this Appellate Court reversed the judgment. This court said (pp. 584-5):

“If in the exercise of sound discretion the censor so deemed it” (viz., immoral), “then unquestionably it was his right and duty to reject the application for a permit. * * * And the mere fact that the court took one view does not justify the conclusion that the respondent abused his power in taking another. If there is a reasonable basis for the censor’s opinion, then a refusal of a permit based thereon could not be deemed an abuse of power, and the picture unquestionably presents ground for such an opinion. One of its scenes, much dwelt upon in the evidence, shows the introduction of an innocent boy into a house of prostitution and vividly portrays the triumph of its evil suggestions, a scene better calculated to appeal to the prurient and degenerate than to illuminate the moral purposes of the play, and one that may well be deemed harmful in influence when presented to mixed audiences. * ■* * The function of censorship is quasi judicial in character, calling for the exercise of sound discretion, with which the courts will not ordinarily interfere except in a clear case.” (Citing authorities, among them the Block case, supra, and People v. Webb, 256 Ill. 364.) “The evidence does not show such abuse, and for that reason alone, regardless of any difference of views as to whether the picture is immoral, the judgment cannot stand.”

. In People ex rel. Fox Film Corporation v. City of Chicago, 209 Ill. App. 586 (not reported in'full), the trial court directed a verdict for the petitioner in a mandamus suit to compel the general superintendent of police to grant a permit to exhibit in said city a certain moving picture entitled “The Tiger Woman,” and a judgment in favor of the petitioner followed. The principal questions of fact raised by the pleadings were whether the picture was immoral or would tend to create harmful impressions on the minds of children. The picture was exhibited on a screen to the court and jury. The. trial court having stated that such exhibition made a prima facie case for the petitioner, respondent called as a witness the official charged with the duty of censorship of moving pictures. He described various scenes in the picture and stated that the refusal to grant a general permit was based on Ms opinion that the picture was immoral and tended to produce a harmful influence upon children. Other witnesses more fully described the scenes and plot, which presented the wiles and schemes of an unchaste woman and circumstances of murder, robbery and theft as incidents to her immoral purposes. In reversing the judgment and remanding the cause this branch of this Appellate Court said:

“The question was not alone whether the picture was immoral or had such harmful tendency but whether respondent abused his discretion in refusing a permit. The law does not contemplate that a court and jury shall sit as an appellate tribunal merely to review the censor’s opinion. The basis of a mandamus proceeding in such a case must be an alleged abuse of official power. While a court or jury’s opinion might differ from his, that fact alone would not justify the writ. The nature of his duties under the ordinances was such as to call for the exercise of official discretion, with which.the courts will not generally interfere unless abused.” (Citing authorities.) “When, therefore, the evidence presents grounds, as here, for a diversity of opinion as to the harmful tendency of the picture, not only must the case be submitted to the jury on that question of fact, but before "they can properly find for the petitioner they must also be able to say from the evidence that there was an abuse of power in refusing a permit.”

It is probably true that different people would entertain different views on the question whether the photoplay here involved was or was not immoral. We are of the opinion that there are certain scenes in it that are immoral or of an immoral nature, or at least scenes as would furnish a reasonable basis for the censor’s decision that a permit to exhibit the photo-play should be refused upon such grounds. We are also of the opinion that there are certain scenes in it that would tend to create a harmful impression upon the minds of children. But, outside of the questions of the immorality of the photoplay, or such harmful tendency, there is no direct proof of abuse of the official discretion of the censor, and such abuse clearly cannot be inferred from this particular photoplay. (See People ex rel. Konzack v. Schuettler, 209 Ill. App. 588, 591.) There being an absence in the record of evidence of abuse of the official power or discretion of the censor, it follows, under the authorities above cited, that the judgment awarding the writ was erroneous, and it is, therefore, reversed.

Reversed ivith finding of facts.

Mr. Presiding Justice Matchett and Mr. Justice Barnes concur.

Finding of facts. We find as ultimate facts in this case that certain scenes in the photoplay in question are immoral and of an immoral nature and such as would tend to produce a harmful influence upon the minds of children, and that the appellant did not abuse his power or discretion in refusing a,permit to the appellee to exhibit said photoplay in the City of Chicago.


text:
    Harry A. Zech, Appellee, v. New Jersey Fidelity & Plate Glass Insurance Company, Appellant.
    Gen. No. 25,114.
    Insurance, § 668

      —when evidence shows loss within burglary policy. In an action under an insurance policy insuring plaintiff against “direct loss by burglary, theft or larceny of any of the property of the assured, * * * occasioned by its felonious abstraction from the interior of the house, building, apartment or rooms actually occupied by the assured, * * * by any domestic servant or other employee of the assured or by any other person or persons,” and not" requiring the assured to produce direct evidence that the loss of the article for which a claim shall be made was due to the commission of a burglary, theft or larceny, where, under the agreed statement of facts, only plaintiff, his wife and their laundress had rightful access to the plaintiff’s bedroom, and only plaintiff and his wife had rightful access to the chiffonier drawer in which the diamond pin alleged to have been stolen was placed, and negligence on the part of plaintiff or his wife is negatived, as is also the fact that the pin was innocently mislaid, such agreed facts are sufficient to raise an inference of the felonious abstraction of the pin by the laundress or by some other person, such as a sneak thief, and will support a finding of the issues against the insurer.
    Appeal from the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed April 30, 1920.
    Zimmerman & Garrett, for appellant.
    Charles H. Wells, for appellee.

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

   Mr. Justice Gridley

delivered the opinion of the court.

This is an appeal from a judgment for $200, rendered by the municipal court of Chicago in favor of plaintiff and against the defendant insurance companv. The action is based upon an insurance policy against burglary or theft. A trial was had before the court without a jury and upon an agreed statement of facts. The court found the issues against the defendant and assessed plaintiff’s damages at the sum of $200, and the judgment followed.

The policy in question insured plaintiff against ‘ ‘ direct loss by burglary, theft or larceny of any of the property of the assured, * * * occasioned by its felonious abstraction from the interior of the house, building, apartment or rooms actually occupied by the assured, * * * by any domestic servant or other employee of the assured or by any other person or persons, * * It does not require the insured, as some policies do, to produce direct or affirmative evidence that the loss of the articles for which a claim is made was due to the commission of a burglary, theft or larceny.

From the agreed statement of facts it appears, inter alia, that plaintiff was the owner and possessor of a diamond stick pin of the value of $200; that on September 13,-1917, plaintiff, as was his usual custom when not wearing the pin, placed a small box containing the pin in a drawer of a chiffonier in .his bedroom in the interior of his residence in Chicago; that he used all reasonable care to protect the premises and pin from loss or damage; that the premises were occupied during the month of September, 1917, by the plaintiff and his wife and by no other person, except that during the day of September 13, 1917, a laundress and maid of all work (who was employed one day each week by plaintiff’s wife and had been for about six months previously) had free access to plaintiff’s bedroom and to other parts of said residence during the day of the week she was employed on the premises; that plaintiff’s wife was in said residence during the day of September 13,1917; that on September 14,1917, plaintiff went to said chiffonier drawer and the box and pin were not there; that both plaintiff and his wife made diligent search therefor extending over a period of several months after September 13, 1917, and the same could not be found on the premises, and that neither plaintiff nor his wife have been able to locate said box or pin; that immediately after discovering that said pin had disappeared plaintiff notified the police officials of the City of Chicago that in his opinion said pin had been taken by theft from said premises; that he filed with defendant due proof of loss as required by the policy; and that there was no other burglary or theft insurance upon said pin.

"Under the agreed statement of facts, only three persons had rightful access to the plaintiff’s bedroom, viz., plaintiff, his wife and said laundress or maid; and only plaintiff and his wife had rightful access to the drawer of the chiffonier where said box and pin had been placed; and the fact of negligence on the part of plaintiff or his wife is negatived by said agreed statement, as is also the fact that the pin was innocently misplaced or lost. We think that the agreed facts are sufficient to raise an inference of the felonious abstraction of the pin by either said laundress or maid or by some other person such as a sneak thief.

In Bailey v. Fraternal Reserve Life Ass’n, 202 Ill. App. 430, 435, it is said: “An insurance contract has but one object, indemnity, and all conditions and provisions therein which have for their sole aim the purpose of defeating the object of the contract are strictly construed against the insurer.” In Stich v. Fidelity & Deposit Co. of Maryland, 159 N. Y. Supp. 712, a case decided on appeal from the Municipal Court of the Borough of Manhattan, first district, the action was on a .similar policy to the one here in question. The evidence disclosed that plaintiff’s wife had placed two diamond rings in a Japanese box, which box was placed in a drawer, and the key to the drawer was hidden under some clothes; that no one but plaintiff’s wife and daughter knew where the key was placed; that a few days after the rings were so placed, plaintiff’s wife looked for them and they were not in the box; that neither plaintiff’s wife nor daughter had taken them out; and that plaintiff and his family occupied rooms in a hotel, and various employees of the hotel had access to the rooms. From these circumstances the trial court inferred that the rings had been stolen and entered a finding and judgment against the insurance company. On appeal the judgment was affirmed. The court said (p. 713):

“The plaintiff can recover only if he shows that the. loss of the jewelry insured occurred by ‘burglary, theft or larceny.’ By the express terms of the policy the insurance company is not liable unless the loss is occasioned by ‘felonious abstraction.’ A felonious abstraction! cannot be presumed, nor can it be inferred from a mere loss. Where the evidence is entirely consistent with a loss by negligence of the party insured or by the innocent act of a third party, the plaintiff has obviously failed to prove a loss by felonious abstraction. In the cases of Schindler v. United States Fidelity & Guaranty Co., 58 N. Y. Misc. Rep. 532, 109 N. Y. Supp. 723, and Gordon v. Aetna Indemnity Co., 116 N. Y. Supp. 558, the court held that the evidence there presented was not sufficient to show such felonious abstraction. The evidence there showed a loss or disappearance, but that loss or disappearance was not shown to have occurred under circumstances so inconsistent with an innocent disappearance as to fairly raise the inference that the loss was due to felonious abstraction. The court did not there hold that proof of disappearance might not be sufficient to show a felonious abstraction, if the circumstances surrounding the disappearance Aere not reasonably consistent with disappearance through an innocent cause. The contract in this case contains' no clause providing that a felonious abstraction must be shown by direct evidence, and the court has no right to make such a contract for the parties. * * * Upon this appeal the only serious question is whether the testimony justifies the inference that the jewelry was stolen. It establishes that the jewelry was placed in a box which only two persons were authorized to open. Neither of these persons took out the jewelry. It follows with reasonable probability that some unauthorized person opened the box and extracted the only articles of value. No unauthorized person would have taken the jewelry, except with felonious intent. It follows that the judgment rests, not on mere suspicion, but on logical inference, and should be affirmed.”

We think the reasoning in this New York case is applicable to the present case. In Miller v. Massachusetts Bonding & Insurance Co., 247 Pa. St. 182, it was decided that in a policy of insurance against theft even the provision, that the assured should produce direct and affirmative evidence that the loss of the article was due to the commission of a burglary, theft or larceny, does not preclude a recovery where there is circumstantial evidence from which a jury might infer that the property had been feloniously taken.

For the reasons indicated the judgment of the municipal court is affirmed.

Affirmed.

Mr. Presiding Justice Matohett and Mr. Justice Barnes concur.