author: Mr. Presiding Justice Holdom

text:
    Daniels Motor Sales Company, Plaintiff in Error, v. New York Life Insurance Company, Defendant in Error.
    Gen. No. 25,901.
    1. Insurance, § 609

      —when plaintiff in action must show good health of insured. A provision in the application for a life insurance policy that the insurance shall not take effect unless the policy is delivered to and received by the insured during his lifetime and good health is a condition precedent, and it is incumbent upon one suing to recover on the policy to prove affirmatively that the insured was in good health at the time the policy was delivered before recovery can be had thereon.
    2. Insurance, § 329*—when Knowledge is essential to waiver. An insurer who did not know that the insured was not in good health at the time the policy was delivered cannot be held to have waived a condition precedent contained in the application that the insurance shall not take effect unless received by the insured while in good health.
    3. Insurance, § 833*—when ill health of insured prevents recovery. In an action to recover on a policy of life insurance, the application for which provided that the insurance should not take effect unless the policy was delivered during the lifetime and good health of the applicant, where it appeared that at the time the policy was delivered the insured was ill in a hospital with pneumonia and di.ed the day after the policy was delivered, there can be no recovery on the policy.
    Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in this court at the March term, 1920.
    Affirmed.
    Opinion filed November 29, 1920.
    Bennison F. Bartel, for plaintiff in error.
    Hamlin, Topliff & Cooper, for defendant in error; James H. McIntosh, of counsel.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The judgment brought to this court for review by this writ of error is of nil capiat upon a verdict instructed by the court, on motion of defendant, at the close of plaintiff’s proofs.

This suit is brought to recover the amount of an insurance policy, $25,000, in the defendant insurance company upon the life of the insured, William Brink-man, in which plaintiff was the beneficiary. Brinkman made a written application for the policy, in which is found the following condition:

“I Agree as Follows: That the insurance hereby applied for shall not take effect unless the first premium is paid and the policy delivered to and received by me during my lifetime and good health. ’’

The determining point in this case is, was the condition above quoted a condition precedent to the going into effect of the policy, thereby making it incumbent upon the plaintiff to prove as a part of its case in chief not only that the premium had been paid when the policy was delivered, but that Brinkman was alive and in good health.

We shall limit our opinion to a decision of this point, regardless of all other questions raised or argued, except that we will say now that there is nothing in the proofs supporting the contention of plaintiff that the condition above recited, that Brinkman should be alive and in good health at the time the policy should be delivered, was either waived or abrogated.

The statement of claim charges that the policy was delivered January 26, 1918, and that Brinkman died at Los Angeles, California, January 27, 1918. The proofs show that delivery of the policy was to the president of plaintiff in Chicago and that the agent of defendant delivering the policy questioned such president as to Brinkman’s health and was informed that he was last heard from in New Orleans while on his way to Los Angeles, and that he was believed to be then in good health.

Counsel for plaintiff in his opening statement stated that after Brinkman arrived in Los Angeles, January 23, 1918, he was not feeling well; that he consulted a physician, who pronounced his malady to be pneumonia and sent him to a hospital, where he died from that illness January 27,1918.

The application of Brinkman for the insurance was offered in evidence by plaintiff and admitted as such. The condition as to health above recited is in that application. There was no evidence as to the health of Brinkman after he left Chicago until his arrival in Los Angeles, except a postal card from New Orleans, which was ruled out by the trial judge as inadmissible.

There is no evidence to be found in the record that Brinkman was in good health on the day of the delivery of the policy to plaintiff’s president. On the contrary, there is an admission in the opening statement of plaintiff’s case that Brinkman was ill with pneumonia at Los Angeles 3 days prior to such delivery and died that following day from that disease. The policy contained the provision that, “This policy and the application therefor, copy of which is attached hereto, constitute the entire contract.” The court, in this condition of the record, lacking, as it did, proof that Brinkman was in good health when the policy was delivered, refused to admit it in evidence, and on motion of defendant instructed a verdict in its favor. Plaintiff contended that proof of the ill health of Brink-man was a matter of affirmative defense, but the court held with defendant that proof of the fact of good health was a condition precedent to the right of recovery, that the onus of such proof primarily rested upon plaintiff, and that without such proof there could be no recovery.

Under the law in this State the condition that Brink-man should be in good health at the time of the delivery of the policy was a condition precedent, making it incumbent' upon plaintiff to prove affirmatively that Brinkman was in good health at such time before it could recover upon the policy. Ellis v. State Mut. Life Assur. Co., 206 Ill. App. 226, where the court said:

“We are of the opinion that the stipulation in the application and policy in question, providing that the policy shall not take effect until actual delivery to the applicant while alive and in the condition of health he was in at the time the application was taken, is a condition precedent and, unless such stipulation has been performed, appellee would not be entitled to recover in this case.”

To like effect is Weber v. Prudential Ins. Co., 284 Ill. 326; Lee v. Prudential Life Ins. Co., 203 Mass. 299.

A condition precedent of the character of the one under discussion must be proven by the party seeking to recover under the contract, and the failure to make such proof will defeat a recovery. Continental Life Ins. Co. v. Rogers, 119 Ill. 474, in which it is held that it is incumbent upon plaintiff to prove performance of all conditions precedent, the court saying in relation thereto:

“Such promissory conditions in the contract as he has undertaken to perform are known to the law as conditions precedent, and if they have not been waived or dispensed with by the defendant, the plaintiff is bound, at his peril, to aver and prove them on the trial. This elementary rule of law applies as fully to actions on policies of insurance as to any other class of cases. ’’

There is no claim in plaintiff’s statement of claim, which is its pleading, that there was a waiver of the condition precedent that Brinkman was in good health at the time the policy was delivered, and certainly there is no proof in the record of any such fact. Furthermore, as defendant did not know that Brink-man was not in good health, it follows logically that it could not waive an existing condition unknown to it.

However, it appears from plaintiff’s proof that Brink-man was not in good health at the time of the delivery of the policy on his life, but was near death and in fact died in a comparatively few hours after such delivery.

Being satisfied that the judgment of the municipal court is without error, that judgment is affirmed.

Affirmed.

Dever and McSurely, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Peter Binz, Appellee, v. Christian N. Michels et al., Appellants.
    Gen. No. 26,051.
    1. Creditors’ suit, § 60

      —what may be scope of decree. A decree entered on a creditor’s bill resting on a judgment may order an execution for the amount found due by it and direct the levy on and sale of real estate which it finds, in effect, is in equity the property of the judgment debtor, though the title is recorded in the name of certain of the defendants to the creditor’s hill, notwithstanding there was no levy on such property under the execution issued on the judgment.
    2. Execution, § 6*—what property is subject to execution. The levy of an execution on property to which the judgment debtor has not record title is unavailing to create a lien, and a sale under such a levy does not pass title.
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court at the March term, 1920.
    Affirmed.
    Opinion filed November 29, 1920.
    Vincent D. Wyman, Harry O. Kinne and Charles E. Carpenter, for appellants.
    Robert E. Berlet, for appellee.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is a creditor’s bill resting upon a judgment for $850 obtained by complainant against the defendant Christian N. Michels, November 20,1916, in the municipal court of Chicago; execution was issued thereon and returned nulla bona and a transcript of the judgment was subsequently filed with the Recorder of Deeds of Cook County, etc. All these steps preliminary to the filing of the bill are admitted by defendants as alleged.

It is charged that the judgment debtor was in equity the legal owner of certain real estate in Chicago described in the bill, the title of which is of record in th'e name of certain of the defendants and so made and kept in fraud of complainant’s rights and to prevent him from obtaining satisfaction of his judgment.

The chancellor found that the material averments of the bill were proven and entered a decree finding that there was due complainant on his judgment the sum of $992.98, and ordered that unless some of the defendants pay that sum within 5 days, execution issue therefor to satisfy the amount of the decree with costs, and that the sheriff levy upon and sell certain real estate, the title to which was of record in the name of certain of the defendants but which the chancellor found was in equity the property of defendant Christian N. Michels. From such decree this appeal is prosecuted on the ground principally that the same is not warranted by the evidence.

An examination of the evidence in the record satisfies us that the decree does justice between the parties. It is clear to us that the judgment debtor fraudulently kept the real estate set out in the bill and decree in the name of some of his codefendants for the purpose of defrauding complainant and preventing him .from collecting the amount due him on his judgment against Christian N. Michels. This seems to be a case where the Michels family joined in the fraud against complainant, who had been at the time of the trial a friend of the judgment debtor for 30 years.

The quantum of proof was sufficient to overcome the' sworn answer and the fraud averred in the bill and denied by the answer was proven by the greater weight of the evidence. In fact, the trend of all the testimony tends strongly to prove that the conveyances challenged were at the best colorable and were made for the express purpose of rendering the judgment against Christian N. Michels uncollectible.

Defendants argue that there is no lien on the real estate in question because there was no levy on the same under the execution issued on the judgment. As the record title to such property was not in the judgment debtor, the levy of the execution would have been unavailing to create a lien and the law does not require the doing of unnecessary acts. A sale under such a levy would be impotent to pass any title. Haggerty v. Nixon, 26 N. J. Eq. 42; Corey v. Greene, 51 Me. 114.

The chancellor had power to order an execution for the amount found due by the decree and to direct that it be levied upon the real estate, which the decree in effect held to belong in equity to the judgment debtor.

The decree of the superior court meets with our approval and is therefore affirmed.

Affirmed.

Dever and McSurely, JJ., concur.


text:
    Armstrong Paint and Varnish Works, Appellee, v. Continental Can Company, Appellant.
    Gen. No. 26,060.
    1. Contracts, § 345

      —when person cannot sue for "breach of contract. One who has breached a contract to which he is a party cannot enforce it against the other or recover damages for the refusal of the other party to perform further after the breach.
    2. Sales, § 65*—how contract of sale is construed. Where a contract provides that the seller agrees to sell and the buyers agree to purchase “a minimum of $2,000 worth of tin packages or more as required by them which buyers will need for actual use in their business” between certain dates, is to be construed as binding the buyers to purchase and the seller to deliver its product to the minimum amount of $2,000, and, while not requiring the buyers to take in excess of the minimum amount unless their business requirements necessitate it, does not permit them, while the contract is in force, to purchase such goods elsewhere, and by so purchasing elsewhere the buyers breach the contract.
    3. Sales, § 61

      —what is evidence of intent of parties. Where under a contract providing that the seller agrees to sell and the buyers agree to purchase “a minimum of $2,000 worth of tin packages or more as required by them .which buyers will need for actual use in their business,” the fact that during the life of the contract the buyers bought such commodity from others than the seller is cogent evidence that such purchases were needed by the buyers to meet their requirements within the meaning of the contract.
    4. Contracts, § 355*—what must he alleged and proved in action for breach of contract. One suing to recover damages for a breach of a contract must not only aver but must also prove that he is not himself in default as to the agreement for the breach of which the suit is brought.
    Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the March term, 1920.
    Reversed with judgment of nil capiat and for costs.
    Opinion filed November 29, 1920.
    Rehearing denied December 13, 1920.
    Wheelock, Newey & Mackenzie, for appellant.
    Eastman, White & Hawxhurst, for appellee.

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

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Defendant prosecutes this appeal in an effort to reverse a judgment for $4,210.75 entered against it on the finding of the trial judge.

The action is based upon a contract between the parties of date March 11, 1916, in which it was provided that the defendant agreed to sell and the plaintiff agreed to purchase a minimum of $2,000 worth of tin packages or more, as required by them, at prices and styles as appended to the contract, which plaintiff would need for actual use in its business between the date of the contract and April 1, 1917.

Plaintiff sought by its statement of claim to recover damages for nonfulfillment of its orders dated February 10, 20 and 23, and March 5, 12 and 29, 1917, for cans under such contract, which orders at the contract prices aggregated the sum of $6,404.75. The damages claimed were the difference between the contract and the market price of the "cans at the several times when they were ordered, which totaled $4,210.75.

Among other defenses interposed is that plaintiff first breached the contract by ordering and purchasing during its life its requirements from third parties while, as it is claimed, it was obligated by its contract to purchase all of its requirements during that time from defendant; that owing to such breach defendant was not obliged under the law to recognize or fill the subsequent orders given on the dates above mentioned.

In the record are found the following stipulated facts:

. “That from time to time and during substantially all of the period between March 11,1916 and February 10, 1917, the plaintiff purchased from parties other than defendant a substantial part of tin packages and cans needed -by the plaintiff for actual use in its business during said period and respectively described in the contract referred to in and attached to the statement of claim filed in this suit.”

If plaintiff first breached the contract, it cannot, under well-settled legal principles, enforce it against defendant or recover damages for the refusal of defendant after such breach to further carry out the contract on its part.

Whether plaintiff breached the contract depends upon whether it was bound under its terms, as matter of law, to purchase from defendant all of its requirements for use in its business during the life of the contract. This must be ascertained by the legal construction to be placed upon the words used in the contract. The words of the contract are that defendant agreed to sell and plaintiff agreed to purchase “a minimum of $2,000 worth of tin packages or more as required by them which buyers will need for actual use in their business between the date hereof and April 1,1917.”

If this contract is not unilateral then it would follow that plaintiff was bound to buy and defendant-bound to deliver cans in accord with the contract; and if defendant could not enforce the contract against plaintiff, then it is a unilateral contract and not binding upon either of the parties to it.

The position of plaintiff is that defendant under the contract obligated itself to deliver tin cans of the minimum value of $2,000, which plaintiff-was bound to take, and as many more as plaintiff might require for actual use in its business during the term of the contract; and plaintiff insists that it had the right to go elsewhere, as it did, and buy the same class of commodity of such third.parties as it might see fit; in other words, that plaintiff need not buy all of its requirements from defendant, but might at its election go elsewhere for them, and yet defendant would be bound to supply to plaintiff all of its called for requirements. This attitude of plaintiff seems to be at least illogical and contrary to well-settled legal principles that covenants in a contract must, to be enforceable, be mutually binding upon the parties to it. We think a fair construction of -the contract is that plaintiff was bound to buy and defendant to deliver its product to the minimum amount of $2,000, and that plaintiff was not bound to take any more unless its business requirements necessitated it; that while the contract was in force plaintiff was not at liberty to go elsewhere for its needs, and in so doing breached the contract.

While the contract did not bind plaintiff to take more than the minimum of $2,000 worth of cans, yet during the term of the contract it was bound to purchase of defendant all of its requirements under that contract. It was not a.t liberty to go elsewhere, during the term of the contract, for a supply of tin cans for use in its business. Whatever plaintiff’s legitimate requirements might have been during the term of the contract, defendant was bound by the terms of the contract to deliver upon request therefor. It was not open to plaintiff to—as it did—purchase its requirements of third parties when cans were obtainable at a price less than that stipulated in the contract, and then to enforce the contract on orders to fill its requirements when the market price exceeded that of the contract price. This is in fact what plaintiff did— bought in the market when it was favorable to it and then ordered its requirements from defendant when the market price was higher than the contract price. Manhattan Oil Co. v. Richardson Lubricating Co., 113 Fed. 923, was a contract in terms .akin to the contract between the parties to this suit, regarding requirements of the purchaser, and it was insisted that the contract was invalid for want of mutuality and that the verdict should have been directed for defendant. In that case the court said:

“If the contract did not obligate the plaintiff to take any specified quantity of oil, manifestly there was no consideration for the promise of the defendant. But in consideration of the defendant’s promise to sell, the plaintiff promised to buy all the oil it should require for its own use for a specified period of time. Read in the light of the previous business relations of the parties, it is plain that by this was meant that it should buy what oil it should require for its use in its manufacturing business. This is a very different promise from one to buy what it might desire, or from a mere option to buy.”

It is patent that the contract in controversy was neither optional nor to take what plaintiff might desire, but, on the contrary, the language of the contract was to take what it might require in its business. Such a provision bound plaintiff, and the fact that it bought elsewhere during the term of the contract is cogent evidence that during that time it needed what it bought to meet its requirements within the meaning of the contract.

It is again contended that the fixing of a minimum amount in the contract did not change the rule. Staver Carriage Co. v. Park Steel Co., 104 Fed. 200, was a case in which there was a maximum of 14,000 sets and a minimum of 2,000 sets of tire steel contracted for, and the court said:

“The contract thus stated is of the class upheld and well defined in National Furnace Co. v. Keystone Mfg. Co., 110 Ill. 427, 434, as one by which the seller was to furnish, and the buyer was to take, the entire supply of tire steel to be used in the buyer’s works up to the date and within the amounts specified; ‘that is, such a quantity, in view of the situation and business (of the buyer) as was reasonably required and necessary in its manufacturing business. ’ See also Minnesota Lumber Co. v. Whitebreast Coal Co., 160 Ill. 85.”

Staver Carriage Co. v. Park Steel Co., 220 Ill. 412. was a contract whereby plaintiff became bound to deliver to defendant “all the tire steel of good and suitable quality which will be .used in buyer’s works prior to September 1, 1899, not to exceed 14,000 sets nor to be less than 10,000 sets,” etc., and the court said:

“Within the limitations as to the number bf sets fixed by the contract, it was a supply contract to meet the requirements of defendant’s business.”

Russell, Burdsall & Ward v. Excelsior Stove & Mfg. Co., 120 Ill. App. 23, was a contract for requirements in stove bolts not to exceed ten million, and the court said:

“The contract in question is for appellee’s ‘requirements’ in stove bolts from December 14, 1898 to January 1,1901, and this means such amount of stove bolts as appellee should need in the regular course of its business and not what appellee might choose to require from appellant.”

National Furnace Co. v. Keystone Mfg. Co., 110 Ill. 427. Minnesota Lumber Co. v. Whitebreast Coal Co., supra, sustains the doctrine as above recited regarding so-called requirement contracts. Many other authorities in other jurisdictions to like effect are cited by counsel.

We therefore hold that as a result of plaintiff ordering from third parties, during the life of the contract, the needed commodities which it had agreed to purchase from defendant, as admitted by it in a stipulation found in the record, it thereby breached the contract, absolving defendant at its election from further performing the same on its part, and that its refusal to fill the orders after such breach was justified. This court said in Consumers Mut. Oil Co. v. Western Petroleum Co., 216 Ill. App. 382:

‘‘ It is, however, a legal axiom that he who has first breached a contract cannot maintain an' action for damages against the other party thereto for a failure to further proceed to carry out such contract subsequent to such breach.”

And in that case it was held as an elementary and inflexible rule that a party suing for damages for a breach of a contract must not only aver but prove he is not himself in default as to the agreement for the breach of which the suit is brought. Harber Bros. Co. v. Moffat Cycle Co., 151 Ill. 84.

Other questions are raised and argued, but what we have already said we think disposes of the right of plaintiff to recover, contrary to its contention.

As there can be no recovery by plaintiff under the contract in suit, as we have above construed it, the judgment of the municipal court is reversed with a judgment of nil capiat and for costs in this court.

Reversed with judgment of nil capiat and for costs.

Dever and McSurely, JJ.t concur.


author: Mr. Justice Dever

text:
    Morton T. Culver, Appellee, v. Village of Glencoe, Appellant.
    Gen. No. 25,492.
    1. Appeal and error, § 482

      —when submission of propositions of law is unnecessary. It is ‘not the rule in the Appellate Court that failure to submit propositions of law in the trial court prevents the raising of such questions on review.
    2. Appeal and error, § 1002*—when sufficiency of evidence will be reviewed. Where, on appeal by defendant to the Appellate Court, no question is presented touching the admissibility of any evidence, that court will determine whether, on the whole record, evidence was submitted which authorized the finding and judgment in favor of plaintiff.
    3. Municipal corporations, § 149*—when evidence shows employment of attorney. In an action by an attorney against a village to recover for professional services rendered in connection with special assessment proceedings, pursuant to an agreement between such attorney and the village attorney, evidence held sufficient to sustain a finding that the agreement between plaintiff and the village attorney was made with the consent and approval of and was authorized and directed by the president and of a majority of the board of trustees of the village and that the successors of these officials knew the character and extent of the services rendered by plaintiff thereunder.
    4. Municipal corporations, § 146*—when special attorney may be employed. A municipal corporation has power to employ special counsel to assist its attorney in special assessment proceedings.
    5. Municipal corporations, § 146*—how special attorney may be employed. To render a municipal corporation liable for the services rendered by special counsel in assisting its attorney in special assessment proceedings, of which services it has received the benefit, it is not necessary that the agreement between such special counsel and the municipal officials under which the services were rendered be a matter of official record, where the evidence supports a finding that they authorized and directed the agreement.
    6. Municipal corporations, § 149*—when village is liable for employment of special attorney. Payment by a village to the village attorney for legal services in connection with special assessment proceedings does not relieve the village from liability to special counsel for services rendered in assisting in such proceedings under an agreement between him and the former village attorney, which was authorized and directed by the president and a majority of the trustees of the village.
    7. Municipal corporations, § 149

      —when special attorney is not estopped from claiming fees. One employed as special counsel to assist the ^village attorney in special assessment proceedings, the employment being authorized and directed by the president and a majority of the trustees of the village and providing that he shall receive one-half of the fee authorized to be paid the village attorney for doing the work, is not estopped, in action to recover for such services under the agreement, by the fact that, on inter-pleader proceedings to determine the right, as between plaintiff and the village attorney, to warrants issued by the village to the order of the village attorney for an amount equal to one-half of the authorized fee, plaintiff waived any claim to the sums for which the warrants were issued or to the warrants themselves, since such warrants were the property'of the village attorney and did not represent any interest of plaintiff.
    Appeal from the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed November 29, 1920.
    Rehearing denied December 13, 1920.
    George I. Hicks, for appellant; Fred D. Jackson, of counsel.
    Robert R. Baldwin, for appellee.

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

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

   Mr. Justice Dever

delivered the opinion of the court.

Plaintiff brought an action in the circuit court of Cook county and recovered therein a judgment against the defendant for the sum of $2,520.65, to reverse which the defendant brings the case to this court.

The case was tried in the circuit court without a jury, and the contention of plaintiff is that defendant, a municipal corporation, through its duly authorized agents, its president and board of trustees, had entered into a contract with the plaintiff, an attorney at law, under which plaintiff was retained to render professional services in connection with certain legal proceedings taken for the making of a local improvement in the Village of Glencoe, which proceedings were known as Glencoe Special Assessment No. 209; that he, the plaintiff, had duly and faithfully performed the services required of him under the contract and that defendant had failed and refused to pay therefor.

The evidence introduced upon the trial, though somewhat contradictory, tends to prove that in October, 1912, the defendant’s board of trustees passed a resolution which fixed compensation to be paid to the then village attorney for services in local improvement proceedings at 2 per cent of the cost of such improvements less 6 per cent thereof; that at the time the village improvement in question was originated, Mr. Olson was village attorney and that he stated to plaintiff, who had theretofore served the village as its president, and also many years as its attorney, that he wished to procure the aid of plaintiff in the legal work necessary in connection with the improvement; that after the adjournment of a public meeting of the trustees held for the purpose of giving public consideration to questions concerning the improvement, Mr. Olson requested of the village president and trustees that he be permitted to employ plaintiff to assist him in the proceedings, and he stated that if such request was granted, he, Mr. Olson, would agree to accept for his services one-half of the fee provided for by resolution for the doing of the work, and that the remainder should be paid to plaintiff; that the president and the trustees present acquiesced in the suggestion, and that he, Mr. Olson, was authorized to conclude the arrangement with plaintiff; that within a day or two thereafter Mr. Olson informed plaintiff of the authority given him and that plaintiff replied by saying that he would aid Mr. Olson in the work if the village would upon the entry of the confirmation judgment pay him a fee of 1 per cent of the amount of such judgment; that Mr, Olson reported the proposition made "by plaintiff to the president and the hoard of trustees and that they accepted it as made.

No record was made by defendant or by its board of trustees of the employment of plaintiff.

Mr. Olson’s term as village attorney expired after a petition for confirmation of Special Assessment No. 209 was filed in the county court of Cook county and before the case was reached for trial. He continued, however, to act as attorney in the matter with Mr. Hicks, who. succeeded him as village attorney. It was agreed between Mr. Olson and Mr. Hicks and the plaintiff that the trial of the case was to be conducted by plaintiff, and the evidence tends to show that Mr. Olson informed the then village president of this fact. The plaintiff was assisted in the trial of the case by Mr. Hicks and to some extent by Mr. Olson. Members of the board of trustees were present during the trial, which occupied 20 days, and the plaintiff thereafter presented to defendant a bill for his services for the sum of $2,006.49, being 1 per cent of the confirmation judgment. At the time Mr. Olson was succeeded by Mr. Hicks as village attorney it was agreed between them that they divide equally any fees payable to the village attorney for services rendered in then pending local improvement cases. After the confirmation of the judgment two vouchers for attorney’s fees were issued by defendant to Mr. Hicks, amounting in all to $1,921.99. The first of these vouchers was issued in May, 1914, and the second in January, 1917. The improvement for which the assessment was made was completed about December, 1916, at a total cost of $214,395.77.

Some time after the issuance of the last voucher to Mr. Hicks, the defendant filed a bill of interpleader in the circuit court of Cook county,, in which it was alleged that defendant was indebted to Mr. Olson in the sum of $1,921.99 for services rendered by him in the making of the special assessment, but that plaintiff had participated in the case as attorney and that he claimed he was entitled to be paid for such services; that it, defendant, had only the sum of $3,843.98 available for the payment of attorney’s fees for services rendered and that it has already paid one-half of this sum to Mr. Hicks; that it brought its warrants into court for the sum of $1,921.99 payable to the order of Mr. Olson, and it prayed that Olson and Culver be required to interplead in the case and that the court determine to whom the sum should be paid. In an answer filed to this bill, as also by cross-bill, plaintiff disclaimed any title to or ownership in the warrants made out in the name of Mr. Olson. Plaintiff asserted that he had been employed specially by defendant, through its proper officers, to render services in the special assessment proceedings. A decree was entered in favor of the plaintiff which on' appeal to this court was reversed and the cause remanded to the trial court with instructions to dismiss the cross-bill which had been filed by plaintiff under which he sought a money decree against defendant for services alleged to have been rendered by him. The cause was remanded to the trial court with instructions to dismiss the cross-bill without prejudice to any legal right which plaintiff might have to bring a further action against defendant except as to the warrants and moneys represented thereby, which were directly involved in the inter-pleader action. It seems to be conceded that the plaintiff rendered services as alleged by him and that he has never been paid therefor.

It is asserted that no proposition of law having been submitted to the trial court, no question is presented for review by this court.

In the case of Poague v. Cook, 219 Ill. App. 647 (Abst.), this court said:

“With reference to the suggestion by plaintiffs’ counsel that as no propositions of law were submitted to the trial court, such questions cannot be raised in this court, it has been held that this is not the rule in the Appellate Courts. City of Chicago v. Bartels, 146 Ill. App. 180; Lanski v. Chicago & N. W. Ry. Co., 181 Ill. App. 565; Educational Aid Society v. Bush Temple Conservatory, 187 Ill. App. 250; Bradish v. Yocum, 130 Ill. 386.”

No question is presented to us touching the admissibility of any evidence, and we are therefore to determine whether on the whole record evidence was submitted which authorized the finding and judgment in favor of plaintiff. The evidence shows that plaintiff because of his experience in special assessment matters was retained to render professional services in connection with Special Assessment No. 209. It is true that the negotiations with the plaintiff were carried on in the main by Mr. Olson, the then village attorney, but the evidence introduced by plaintiff tends to prove that Mr. Olson’s actions were done with the consent and approval of the president and a majority of defendant’s board of trustees, and there can be no doubt entertained from the evidence that the successors of these officials were well aware of the important and necessary services rendered by plaintiff in the special assessment proceedings. This is shown in part by correspondence between Mr. Mills, who succeeded Mr. Sayles as village president, and Mr. Olson.

The case, as we view it, really turns upon the question of whether the failure on the part of the village officials to make an official record of the employment of plaintiff is sufficient to discharge defendant from any liability for services rendered by the plaintiff and of which defendant received the full benefit. The evidence shows that the village trustees and the president did more than merely consent to the employment of plaintiff. While there is some dispute in the evidence, we think that there was sufficient shown to authorize a finding that the employment of plaintiff was authorized and directed by defendant.

In the case of Hope v. City of Alton, 214 Ill. 102, it was held that an attorney dealing with a city is chargeable with notice of and is bound by an ordinance which provides that the city should not in any case be liable for services of any attorney except a corporation counsel. Our attention has not been directed to any ordinance of defendant which prohibited the making of the alleged contract sued on.

The case of City of Alton v. Mulledy, 21 Ill. 76, seems to have turned upon a question of fact as to whether the defendant had by any act or conduct rendered itself liable to the plaintiff, who was a subcontractor of a contractor with whom the City of Alton had contracted to perform certain public work.

In the case of Village of Harvey v. Wilson, 78 Ill. App. 544, it was held that a village is liable to an attorney for professional services rendered by him even though no formal contract of employment, or any ordinance or resolution adopted by the council, directly authorized or ratified the action of its vice president in entering into the contract. This case in essential particulars is much like the present case. In the Wilson case it appears that after, attorneys had performed valuable services for the village and had presented their bill therefor they were met by the statement that in that no public record had been made of their employment, the board of trustees would refuse to pay the bill. In deciding the case the court said:

“There is no doubt but that the board of trustees had the power to employ counsel to defend the village in a proceeding which went to its very existence as a corporation. In fact, this is practically conceded by appellant. Hurd’s Rev. Stat. ch. 24, art. 11, secs. 8 and 11 [J. & A. ¶¶ 1525, 1528]; Dutton v. City of Aurora, 114 Ill. 138; City of Roodhouse v. Jennings, 29 Ill. App. 50, and cases cited.”

It appears in the present case that the proceedings in which services of value were rendered by the plaintiff, while not vital to the existence of defendant, were of grave importance to the welfare of its inhabitants.

In its opinion in the Wilson case, supra, the court said:

“The village has had the benefit of these services, knew all about appellees’ employment and the extent and nature of their services while they were being rendered, and notwithstanding, a new board of trustees say to appellees: ‘True, you rendered these services, they are worth what you claim, we have had the benefit of them in the vindication of the very existence of the Village of Harvey in the adjudication of the court of the highest resort in the State, but we had a village attorney who should have done this work; we have no record that you were ever employed, or that we authorized or ratified your employment; we have made no appropriation to pay you, and we will not pay.’

“Such a position is most unconscionable and should not receive the sanction of any court, unless to do so is to obey some positive behest of the law, which fortunately, for the maintenance of fair dealing and good morals, is not the case. In Town of New Athens v. Thomas, 82 Ill. 259, which was a suit by appellees to recover the value of their services rendered to appellant, the sole defense being that appellees had not been employed by the town in its corporate capacity, the Supreme Court, after stating the general rule, as contended for by appellant, said: ‘Indeed, every step taken by appellees in the adjustment of the matter in controversy was with the full knowledge, approbation and consent of the president and common council of the town. Can the town now be heard to say, after it has received the benefit of appellees’ skill and labor in its behalf, and after it has recognized the employment by various corporate acts, that appellees were not employed? To so hold would neither be just nor in harmony with the current of authority on this subject.’ ”

Town of Bruce v. Dickey, 116 Ill. 527; Town of New Athens v. Thomas, 82 Ill. 259.

The defendant had the power to employ special counsel to assist the village attorney in the special assessment proceedings, and it necessarily follows from what has been said that it ought to pay for the services rendered by plaintiff. The evidence shows that the resolution of October, 1912, provided for payment to the village attorney for services to be rendered under the special assessment proceedings a sum equal to 2 per cent of the cost of a proposed improvement. Mr. Olson, the then village attorney, the evidence shows, by an understanding with the village officials, waived the payment to him of one-half of this 2 per cent, and if the evidence admitted for plaintiff is to be believed, the sum so waived was, under the terms of the agreement, to be paid to plaintiff. After the making of the improvement, warrants were issued by defendant, payable to Mr. Olson, for one-half of the 2 per cent which the village became liable to pay under the resolution of October, 1912. In the interpleader proceedings the plaintiff waived any claim or right to the sums for which these warrants were issued or to the warrants themselves. The plaintiff’s theory in the interpleader suit was the same as it is here, namely, that he was entitled to receive from the defendant not the sum for which the warrants were issued, but a similar amount which the defendant had agreed to pay him.

Whether Mr. Hicks, the village attorney, who succeeded Mr. Olson, received the amount due the plaintiff for services rendered need not be determined in the present case. As we have stated, we think there is some evidence which tends to show that a binding contract was entered into between the plaintiff and defendant by its proper officials; that this contract was made on behalf of defendant by its president and at least a majority of the board of trustees, and that these agents, as well as those who succeeded them in office, were well informed of plaintiff’s connection with the special assessment proceedings. The fact of payment to Mr. Hicks does not in and of itself discharge defendant from liability to plaintiff.

The plaintiff is not estopped from asserting his rights under the contract.

In the interpleader proceedings referred to plaintiff filed an answer and a cross-bill, in which he disclaimed all interest in the warrants, or the moneys represented thereby, which were concededly the subject-matter of the interpleader bill. In our opinion in that case we said:

“Whether the complainant has by its conduct or the conduct of its officials become liable to the defendant Culver for the payment of any sum or sums of money may become an issue in other proceedings, and it is not intended to express any opinion here on this question further than to repeat that it is conceded that services of value have been rendered by Culver to the village for which he has not up to this time been paid.

*******

“Whether complainant is or is not otherwise indebted to either defendant is not material under the issues presented by the bill. * * *

“The decree of June 27, 1916, will be reversed and the cause remanded with directions to dismiss the cross-bill of the defendant Culver without prejudice to any legal right which he may have to bring further action against the complainant, except as to the warrants and the moneys represented thereby involved in this cause.” 204 Ill. App. 453.

Both the evidence in the record in the present case and the pleadings in the interpleader proceedings show that the warrants and the moneys represented thereby in the interpleader case were the property of Olson. Plaintiff never had and he never claimed any right to these warrants and his disclaimer of any interest therein ought not to be held to bar him from a right to bring his present action.

The decree of the circuit court will be affirmed.

Affirmed.

Holdom, P. J., and McSurely, J., concur.


author: Mr. Justice McSurely

text:
    Owen O’Brien, Appellee, v. Chicago City Railway Company et al., Appellants.
    Gen. No. 25,167.
    1. Street railroads, § 94

      —what may be considered in determining contributory negligence. In an action against a street railway company to recover for personal injuries received while plaintiff, a city employee, was working in the street near defendant’s track, where it appears that for about 3 days before the accident a flagman had been stationed near who warned plaintiff and the other workmen of the approach of the car, but he had left his post shortly before the accident and did not give the usual warning, the questions as to who employed the flagman and whether or not it was defendant’s duty to have a flagman at such point are immaterial on the point of plaintiff’s contributory negligence, the questions in that regard being whether there was such a practice of warning the workmen as would lead them to rely on being warned and whether, when the warning failed, plaintiff, in not heeding the car’s approach, behaved otherwise than an ordinarily prudent man, exercising reasonable care for his own safety, would have behaved, in the same circumstances.
    2. Street railroads, § 135*—when contributory negligence is question for jury. In an action by a city employee against a street railway company to recover for personal injuries through being struck by defendant’s car as he was working in the street near the track, where there is evidence that the car was running at a high rate of speed and giving no warning and that for the last 3 of the 5 or 6 days'dn which plaintiff had been engaged in such work, a flagman had been stationed near who gave warning of the approach of cars, but the flagman had left his post shortly before the accident and gave no warning, it was held that the question of plaintiff’s contributory negligence was for the jury.
    3. Appeal and error, § 438*—when variance must be objected to at trial. In an action to recover for personal injuries, where the evidence shows that plaintiff cannot recover in a common-law action but can receive relief under the Workmen’s Compensation Act solely, there is a variance which must be specifically pointed out on the trial, not only in the objections to testimony, but in the motion for a new trial, general terms not being sufficient, otherwise the question cannot be considered on appeal.
    4. Pleading, § 431*—when variance is fatal. Where the evidence, in an action for personal injuries in which the declaration is based upon plaintiff’s common-law right of action, makes out a case not at common law but under the Workmen’s Compensation Act, the charge of variance, properly raised, is fatal.
    5. Pleading, § 422

      —when departure arises. A departure arises upon a pleading subsequent to the declaration which pleading is not pursuant to the previous pleading of the same party and which does not support and fortify.
    6. Limitation of actions, § 112*—when plaintiff should he permitted to reply. Where one bringing a common-law action to recover for personal injuries files an amended declaration stating a right to recover under the Workmen’s Compensation Act and the defendant pleads the statute of limitations, plaintiff should be afforded an opportunity of replying that the case is within some exception to the statute, if such is the fact.
    7. Masteb and servant, § 600*—what evidence is not matter of defense. In an action to recover for personal injuries, allegations or proof with respect to the Workmen’s Compensation Act are not matters of defense.
    Appeal from the Superior Court of Cook county; the Hon. John J. Sullivan, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and remanded.
    Opinion filed November 29, 1920.
    Charles LeRoy Brown, for appellants; John R. Guilliams and John E. Kehoe, of counsel.
    James C. McShane, for appellee.

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

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

   Mr. Justice McSurely

delivered the opinion of the court.

This case is in this court for the second time. December 8,1919, we filed our first opinion (216 Ill. App. 115); the case then went to the Supreme Court which reversed our judgment and remanded the cause to this court with directions to pass upon the other assignments of error not passed upon by us. 293 Ill. 140. Both parties say the judgment must be reversed and plaintiff asks that the cause be remanded, but defendants oppose this.

As stated in the former opinions, this is an action to recover compensation for personal injuries, and upon trial plaintiff had a verdict and judgment for $12,500. The accident happened March 23, 1917. Plaintiff was an employee of the City of Chicago and at this time was one of a gang of men trying to locate a leak in a water pipe by digging holes in Ashland avenue, a north and south street in Chicago, upon which defendants operated street cars. About quitting time in the evening, plaintiff and another member of the gang were laying boards over a hole which was dug west of the street car tracks, which came_about a foot from the outside of the west rail. While plaintiff was engaged in rearranging these boards he was struck by a southbound street car and received the injuries involved in this suit.

We stated in our former opinion that although defendants urged contributory negligence of plaintiff as a bar to recovery, we did not consider this point for the reason we thought another consideration was decisive. The Supreme Court held we were in error in this.

Contributory negligence of plaintiff is claimed. When the men quit work for the day they covered the holes or excavations they had made in the street with boards, to prevent persons from falling therein; the boards were not sufficient in number entirely to cover one of the holes and plaintiff and another member of the gang commenced to spread the boards so as to make them cover it. They started at the west side of the hole and worked towards the track and were spreading the two boards nearest the track, plaintiff standing at the south end and within a foot or two of the track, stooping, and spreading the boards, when the street car in question went by and struck him, inflicting the injuries complained of. Some of the witnesses testified that the car was running at a high rate of speed and without warning. Plaintiff, with the rest of the gang, had been engaged in this work for about five or six days. For about three days prior to the accident a flagman was present, who flagged the cars and warned the men of their approach. There was evidence that at the time this particular car passed, the flagman, having left his post a very short time before, did not warn the workmen as usual. Several witnesses testified they relied upon the flagman during the process of the work to give them warning of approaching street cars. There is considerable discussion as .to who employed the flagman and as to whether or not there was any duty upon defendants to have such a man at this place. We do not think this was material as touching the question of contributory negligence. The question is whether there was such a practice of warning the workmen as would lead them to rely upon it, and whether, when the warning failed at this particular time, plaintiff, in not heeding the approaching car, behaved otherwise than an ordinarily prudent man, exercising reasonable care for his own safety, would have behaved under the same circumstances. It was proper to leave this question to the determination of the jury. Upon this record we' cannot say plaintiff was guilty of contributory negligence as a matter of law; neither can we say that the jury’s conclusion on the fact was manifestly wrong. We refrain from a more detailed discussion of the occurrence, as the cause must be remanded for reasons hereinafter stated.

It was urged by. defendants that the trial court erred in not directing a verdict as plaintiff cannot recover on a common-law declaration, as the evidence shows the applicability of the Compensation Act to this cause of action. This may be true and yet the record does not sufficiently present this point so we may properly pass upon it at this time. We are the more inclined to this view because this point was earnestly presented to the Supreme Court, which was urged to enter the judgment which we are now asked to make. The Supreme Court declined to do this, and we assume for the reason we have just indicated, namely, not sufficient basis in the record.

If the evidence upon the trial showed that plaintiff did not have his action at common law, but came under the Workmen’s Compensation Act, this was a variance which might have been cured by amendment if the question had been properly raised. The charge of variance must be specifically pointed out upon the trial not only in the objections to testimony, but in the motion for a new trial; general terms will not be sufficient. This is to permit plaintiff to make proper amendment. As was said in Probst Const. Co. of Chicago v. Foley, 166 Ill. 31:

“In order to raise the question of variance it was necessary for the defendant to indicate specifically the variance and point out in what it consisted, so as to enable the court to pass upon the question intelligently, and also to enable the plaintiff to so amend his pleading as to make it conform to the evidence. The defendant not having done this, but having charged a variance only in general terms, the objection must be considered as waived, and the question of variance cannot be raised here!”

Pressed Steel Car Co. v. Herath, 207 Ill. 582; Gascoigne v. Metropolitan West Side El. Ry. Co., 239 Ill. 21.

It is asserted that defendants ’ counsel did properly raise the question of variance upon the trial, but we do not agree with this. It was apparently the theory of counsel for both parties that the cause was an attempt to proceed under section 29 of the Workmen’s Compensation Act [Callaghan’s 1916 Stat. ¶ 5475(29)], hence the point of variance between the testimony and the declaration considered as a common-law declaration was not in the minds of any of the attorneys and certainly was not specifically called to the attention of the court. If plaintiff should proceed to a second trial upon his present declaration and the evidence should make out a case not at common law, but of the applicability of the Workmen’s Compensation Act, and the charge of variance is properly raised by the defendants, it would be the duty of the trial court to rule that such a variance was fatal.

This cannot be called an instance of departure which properly arises upon a pleading subsequent to the declaration, which pleading is not pursuant to the previous pleading of the same party and which does not support and fortify it. Encyc. of Pleading and Practice, vol. 6, p. 460; Union Pac. Ry. Co. v. Wyler, 158 U. S. 285.

Should plaintiff file an amended declaration stating a cause of action under the Workmen’s Compensation Act and defendants should plead the statute of limitations, plaintiff should be afforded the opportunity of replying that the case is within some exception to the statute, if such is the- fact. This is another reason for remanding. Wall v. Chesapeake & O. R. Co., 200 Ill. 66; Heimberger v. Elliot Frog & Switch Co., 245 Ill. 448.

We do not agree with plaintiff that it follows from the decision of the Supreme Court that allegations or proof with reference to the Compensation Act must be matters of defense. ’ It has been held otherwise many times. Beveridge v. Illinois Fuel Co., 283 Ill. 31 [17 N. C. C. A. 463]; Barnes v. Illinois Fuel Co., 283 Ill. 173; Vose v. Central Illinois Public Service Co., 286 Ill. 519; Reynolds v. Chicago City Ry. Co., 287 Ill. 124; Bishop v. Chicago Rys. Co., 290 Ill. 194.

Upon our former consideration we held that it was reversible error to admit in evidence the written contract between the plaintiff and the City of Chicago, known as “Plaintiff’s exhibit G,” and also that the giving of plaintiff’s fifth instruction was prejudicial. This was affirmed by the Supreme Court and for the reasons in this respect stated in its opinion the judgment must be reversed.

The judgment therefore is reversed and the cause remanded.

Reversed, cmd remcmded.

Holdom, P. J., and Dever, J., concur.


text:
    Waleria Waiswila, Administratrix, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 26,075.
    1. Master and servant. § 717

      —when question for jury as to violation of custom arises. In an action under the Federal" Employers’ Liability Act to recover for the death of a car sealer who was killed by a switch engine backing against one of the two cars between which he was walking, catching him between the cars, where the evidence as to the existence of a custom for the switch engine bell to be rung before the engine was moved and as to the violation of this custom is conflicting, the existence of the custom and the violation thereof are for the jury.
    2. Master and servant, § 191*—when warning is necessary. Failure of the master to give the customary warning to his servant when in a position of danger is negligence.
    3. Master and servant, § 177*—when removal of warning sign is negligence. In an action under the Federal Employers’ Liability Act to recover for the death of a car sealer who was killed, while passing between cars in performing his duty in obedience t^to the yardmaster’s orders, by the impact of a switch engine against one of such cars, it was negligence on the employer’s part for the yardmaster to remove the red card from the end car on the track on which the car sealer was working, thereby notifying the crew of the switch engine that such cars were in readiness for moving and coupling up. ,
    4. Master and servant, § 335*—what risks are assumed by car repairer. While a car sealer’s work is dangerous and he assumes the risk of the extraordinary dangers incident to work of such character, he does not assume the risk of an unexpected negligent departure from the customary method of doing such work.
    5. Master and servant, § 335*—what increased rislcs are not

      assumed by ear repairer. In an action under the Federal Employers’ Liability Act to recover for the death of an employee, even if the employee knew and assumed the risks of an inherently dangerous method of doing the work, he did not assume the increased risk attributable to negligence in pursuing the method, not to the method itself.
    6. Master and servant, § 579

      —who has burden of proving assumption of risk. In actions under the Federal Employers’ Liability Act, the burden of proving assumption of risk is on the defendant.
    7. Appeal and error, § 1410*—what is effect of jury's finding. In an action under the Federal Employers’ Liability Act, where the evidence is such as to require the submission of the question of assumption of risk to the jury, their finding thereon will not be disturbed unless manifestly against the weight of the evidence.
    8. Master and servant, § 698*—when evidence shows no assumption of risk. In an action under the Federal Employers’ Liability Act to recover for the death of a car sealer, killed while performing his duties in obedience to the yardmaster’s orders, there being evidence that a switch engine backed against the cars on which he was working without any signal having been given and that it had so backed pursuant to notice from the yardmaster that the cars on that track were ready to be moved, held that such evidence was sufficient to support a finding that the car sealer did not assume the risk.
    9. Master and servant, § 779*—when instruction as to evidence is proper. In an action under the Federal Employers’ Liability Act to recover for the death of an employee, an instruction to the effect that plaintiff need prove his case by only slight preponderance of the evidence, held not erroneous.
    10. Limitation of actions, § 74*—when amendment is not subject to i limitations. Where the declaration in an action to recover under the Federal Employers’ Liability Act for the death of a car sealer caused by a switch engine backing against the cars on which he was working and catching him between them, averred in general terms the careless' and negligent management, operation, etc., of defendant’s cars, an amended count alleging the custom of ringing the bell on defendant’s engines and the violation of this in this instance, causing the accident, does not state a new cause of action, but simply sets forth the particular negligent operation complained of, and is not subject to the statute of limitations though the accident happened August 1, 1914, and the amendment was filed in January, 1919.
    11. Death, § 67*—when damages are not excessive. In an action under the Federal Employers’ Liability Act to recover for the death of an employee, a verdict of $12,500 is not excessive where the evidence shows that he was 44 years old, of good habits and good health, had earned $852.44 for the year preceding his death and left surviving him a widow and a child about 6 years old.
    12. Appeal and error, § 1514

      —when remark of attorney is not prejudicial. In an action under the Federal Employers’ Liability Act to recover for the death of an employee by an accident occurring in August, 1914, the statement of the counsel in his argument on the trial, in January, 1919, that it was a matter of common knowledge that wages in all lines had increased, is not ground for reversal.
    13. Evidence, § 14*—what is matter of common knowledge. It is a matter of common knowledge that between August, 1914 and January, 1919, there had been a great increase in wages and in the cost of living.
    14. Master and servant, § 828*—what is basis of compensation for death. As to whether the basis of compensation in an action under the Federal Employers’ Liability Act should be the wages and cost of living at the time of the accident or at the time of the trial, quœre.

    Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in this court at the March term, 1920.
    Affirmed.
    Opinion filed November 29, 1920.

      Certiorari denied by Supreme Court (making opinion final).
    Vernon W. Foster, for appellant; John G. Drennan and Walter S. Horton, of counsel.
    Tone & Rockhold, for appellee.

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

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

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

   Mr. Justice McSurely

delivered the. opinion of the court,

August 1, 1914, Kazimer Waiswila while employed by defendant was killed in its freight yards in Chicago. The administratrix brought suit to recover compensation under the Federal Employers’ Liability Act and upon trial had a verdict and judgment for $12,500, and defendant appeals.

The gist of plaintiff’s claim was the violation by defendant of a custom that a locomotive working in the yards should, before starting from a stop, ring its bell to warn car sealers and other servants of defendant working in and about the freight cars, by reason whereof Waiswila, while obeying an order from the yardmaster, was caught between two cars, receiving injuries from which he died.

Waiswila was employed by defendant as a trucker and car sealer in the South Water street yards handling outbound freight. The" outbound freight house was on the east side of the yards; next west of it were seven tracks numbered 1 to 7 from east to west, which ran parallel to each other and extended four city blocks from South- Water street on the north, to Madison street on the south. The freight cars for outbound freight were switched in and “spotted” during the night. By “spotted” is meant that the freight cars would be placed opposite the doors of the freight house and runway boards placed from the house to the car and on from car door to car door, so that there would be a continuous aisle through the cars from the east to the west through which freight would be trucked to the proper car on any of the seven tracks. Some cars are longer than others, and that their doors may be in line it is necessary to uncouple them, leaving spaces between. When the truckers had finished loading the cars the runway boards would be removed and the doors closed and sealed. The sealing of the cars was in charge of Michael Fitzgerald, sometimes referred to as the yardmaster. Each morning he would place a red card on the south end of each cut of cars on each track to indicate that the loading and sealing were in progress; this was a signal to the switching crew on the engine that they should pot move any of these cars until the red card was taken down. When a cut of cars had been loaded and the runway boards removed and the cars sealed. Fitzgerald would remove the red card on that track as a signal that the engine could couple them up. Plaintiff alleged and introduced evidence tending to show that at such times, before a switch engine moved, it was the custom to ring the bell as a warning to car sealers and truckers and others working in and around the cars. The existence of such a custom was controverted by defendant. While it may not have been proven that it was the custom to ring the bell every time an engine moved from a momentary stop, it was sufficiently proven that it was customary to ring a bell when ah engine started from a stop of some minutes; and it is conceded, in argument, that the engine in question, before it started to make the move resulting in the fatal accident, had been standing such a length of time as to require its bell to be rung when it started.

In sealing the different cars and in carrying away the runway boards, the car sealers in passing from one track to another would pass between the uncoupled cars. This would seem to be' necessary, as frequently a cut of cars would extend over two city blocks. There is evidence from which the jury could conclude that in doing this work the men relied upon the "fact that the red card would not be removed until the sealing had been completed, and also that the engine would sound its bell before it began to couple up the cars.

Upon the day of this accident Waiswila commenced sealing cars about 5 o’clock in the evening. He was working on track number 3 when Fitzgerald ordered l-him and another sealer to go over to track number 6 and finish the work there. There is testimony that Fitzgerald told Waiswila to go on the west side of that track to seal the cars, while the other sealer was to work on the east side, and they started to obey this order. In the meantime Fitzgerald went to the south end of the cut on track 6 and removed the red card and immediately a switch engine started to back north on that track, and as Waiswila was passing between the first and second southerly cars to reach the west side of the cut, they suddenly came together and he was caught between them and killed. Before the engine started it was standing about 50 feet south of the cut, and some witnesses testified that at the time it started no bell was rung; other witnesses testified to the contrary.

The' important questions of fact as to the existence of a custom to ring the bell of an engine before starting, and the violation of this custom upon the particular instance in question, were properly submitted to the jury. We must assume that the variant stories, attempts to weaken the testimony of witnesses and their appearance upon the stand, all received due and proper consideration in weighing- the evidence. The conclusion was favorable to plaintiff and we cannot say that this is so manifestly wrong as to require us to disturb it.

Failure of the master to give the customary warning to his servant when in a position of danger is negligence. Sturm v. Consolidated Coal Co., 248 Ill. 20; Doering v. Peoria & P. Union Ry. Co., 196 Ill. App. 129; Chicago, R. I. & P. Ry. Co. v. Rathneau, 225 Ill. 278; Pennsylvania Co. v. Stoelke, 104 Ill. 201. Failure to give warning under somewhat similar. circumstances has been held to be negligence under the Federal Employers’ Liability Act. Central R. Co. of New Jersey v. Colasurdo, 192 Fed. 901: Evans v. Detroit, G. H. & M. R. Co., 181 Mich. 413; Bombolis v. Minneapolis & St. L. R. Co., 128 Minn. 112.

It was also defendant’s negligence for Fitzgerald to order Waiswila to go to the west side of track 6 to seal cars, and while he was doing so for Fitzgerald to take the red card from the cut of cars on that track, thereby notifying the switching crew that the cars were ready to be moved and coupled up. In Norton Bros. v. Nadebok, 190 Ill. 595, it was held that when a servant obeyed the order of his superior in a particular thing in the absence of any warning or notice, he “had the right to assume that his superior, who gave the order, would not by his own negligence make the act which he commanded him to do, and which he was bound to obey, unsafe.” The cases cited by the defendant upon the question of negligence are not applicable, for none of them involved a failure to give a customary warning nor an instance of a foreman directing a servant to do a particular work and then doing something to make unsafe the place where the work was to be done.

We cannot assent to the contention that Waiswila assumed the risk. It is undoubtedly true that work of this kind is. dangerous and that he assumed the risks of the extraordinary dangers incident to this kind of work (Boldt v. Pennsylvania R. Co., 245 U. S. 441, 19 N. C. C. A. 461), but he did not assume the risk of an unexpected negligent departure from the customary method of doing this dangerous work. The correct distinction is stated in Chesapeake & O. Ry. Co. v. Proffitt, 241 U. S. 462, as follows:

“Even if plaintiff knew and assumed the risks of an inherently dangerous method of doing the work, he did not assume the increased risk attributable not to the method but to negligence in pursuing it.”

To the same effect are Devine v. Chicago, R. I. & P. Ry. Co., 266 Ill. 248, affirmed in 239 U. S. 52; Lancette v. Great Northern Ry. Co., 140 Minn. 488; Kenney v. Seaboard Air Line Ry. Co., 165 N. C. 99, affirmed in 240 U. S. 489; Chesapeake & O. Ry. Co. v. De Atley, 241 U. S. 310; Bassham v. Chicago, I. & L. Ry. Co., 214 Ill. App. 74. These were cases under the Federal Employers’ Liability Act. We adopt as applicable to the instant case what is said in the Bassham case, supra:

“The burden lay with defendant to prove the assumption of risk, and the evidence being such as to require its submission to the jury (De Atley case, supra, and Kanawha & M. Ry. Co. v. Kerse, 239 U. S. 576, 581), we should not disturb their finding on that question unless it is manifestly against the weight of the evidence bearing on it, which we are not disposed to hold.”

The jury having believed that the accident happened because of the unexpected negligent violation of the customary method of doing the work, under the rule stated in the cases supra, Waiswila did not assume the risk.

The third given instruction at the request of plaintiff is not open to the criticism made by defendant. It does not assume to state the elements of plaintiff’s case which would require a favorable verdict. It is simply an instruction dealing with the quantum of proof. Instructions to the effect that plaintiff need prove his case by only slight preponderance of the evidence have been approved in Taylor v. Felsing, 164 Ill. 331; Donley v. Dougherty, 174 Ill. 582; Norton v. Clark, 253 Ill. 557.

In view of what we have said concerning the assumption of risk the instructions given upon the subject were not prejudicial to the defendant. Some of the instructions tendered by defendant and refused might have been given and some of those given at the request of plaintiff might properly have been refused, but we do not find anything in this respect which requires a reversal.

The accident happened August 1, 1914. Upon the trial in January, 1919, plaintiff, by leave, filed an amended count alleging the custom of ringing the bell on defendant’s engines and the violation of this custom in this particular instance causing the accident. To this defendant filed a plea of the statute of limitations, but plaintiff’s demurrer thereto was sustained. This amended count did not state a new cause of action. The original declaration averred in general terms the careless and negligent management, operation, etc., of defendant’s cars. The amended count was included in this charge of general negligence and simply set forth the particular negligent operation complained of. Chicago City Ry. Co. v. Jennings, 157 Ill. 274; North, Chicago St. R. Co. v. Aufmann, 221 Ill. 614.

It is said that the verdict of $12,500 was excessive. The evidence showed that deceased at the time of his death was 44 years old. He left surviving him a widow and a child about 6 years of age. He was a man of good habits and of good health. His earnings for the year preceding his death amounted to $852.44. Verdicts in death cases for larger amounts have been sustained many times. Northern Trust Co. v. Grand Trunk & Western R. Co., 207 Ill. App. 11; Thornbro v. Kansas City, M. & O. Ry. Co., 92 Kan. 681; Kansas City Southern Ry. Co. v. Leslie, 112 Ark. 305; Phillips v. Union Pac. R. Co., 100 Neb. 157; Gulf, C. & S. F. Ry. Co. v. Beesley (Tex. Civ. App.), 153 S. W. 651. It is difficult to determine with certainty the proper amount of financial compensation for the taking of a life. The policy of Hlinois as expressed in its statute fixes the maximum amount at $10,000. Hnder the Federal Liability Act this can be exceeded and it can hardly be said that an excess of $2,500 over the maximum under our statute is grossly excessive. The tests proposed by defendant based upon expectancy tables are hardly convincing. The judgment of a jury, with its knowledge of general conditions and affairs, must be given great weight and we cannot say that the conclusion in this ease was so improper as to indicate any passion or prejudice.

It is said that the jury were improperly influenced by the argument of counsel for plaintiff, in which he said that it was a matter of common knowledge that wages in all lines had increased. In ruling upon an objection to this, the court interpreted this to mean that the jury 'might consider the amount of damages in the light of their “experience, observation and understanding in the ordinary affairs of life.” We think it is entirely safe to assume it was a matter of common knowledge that between August 1, 1914, the date of the accident, and January, 1919, the date of the trial, there had .been a great increase not only in wages but in the cost of living, and we do not think anything said by counsel or by the court added anything to the knowledge of the jurors in this respect.

It is perhaps not necessary to pass definitely upon the proposition as to whether the basis of compensation in this case should be the wages and cost of living at the time of the accident or the time of the trial, for the reason (1) that the verdict cannot be considered grossly excessive on either basis; and (2) we cannot determine with certainty all the elements entering into the consideration and conclusion of the jury as to the proper amount of compensation.. In two English cases the amount of awards for injuries under the Workmen’s Compensation Law were increased to an amount commensurate with the increase in wages. Bevan v. Energlyn Colliery Co. (1912), vol. 81 K. B. 172; Woodilee C. C. Co. v. McNeill (1918), Law Journal, 17. In Washington & Rockville R. Co. v. La Fourcade, 48 App. Cas. (D. C.) 364, this precise question was raised, and it was held that the jury should consider the conditions with reference to the value of the dollar at the time of the trial, the opinion saying among other pertinent things.:

“Hence in measuring it (damage) in dollars it is competent for the jurors to take into consideration those conditions, social and economic, which at the time are generally known and acknowledged to exist, and which from universal experience are applied by mankind in fixing values.”

We find in the record no sufficient reason to reverse and the judgment is affirmed.

Affirmed.

Holdom, P. J., and Dever, J., concur.


text:
    Stanley Zola, Appellee, v. August R. Zacher, Appellant.
    Gen. No. 26,106.
    1. Attachment, § 194

      —what must be done with property when attachment is released. Where property attached on a claim is released upon the payment of the claim and the constable’s return shows the payment and release, the property should be returned to the person in whose hands it was attached.
    2. Chattel mortgages, § 273*—when mortgagee acquires title to property. If the mortgagee under a chattel mortgage takes possession of the mortgaged property before any dther right or lien attaches, his title, under the mortgage, is good against every one notwithstanding any irregularity in the acknowledgment of the mortgage and in the method of foreclosure.
    3. Chattel mortgages, § 273*—when Creditor has notice of acquisition of title by mortgagee. Evidence that a mortgagee of chattels took possession of the chattels, conducted the business and also purchased goods from an attaching creditor of the mortgagor is sufficient to charge such creditor with actual knowledge of the change of possession.
    4. Appeal and error, § 379*—what claims are not available on appeal. Where no claim of after-acquired property was made on the trial of the right to mortgaged chattels as between an attaching creditor of the mortgagor and the mortgagee who had purchased the property from one acquiring it at the sale on foreclosure, such claim cannot be made on appeal for the first time.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding Heard in this 'court at the March term, 1920.
    Affirmed.
    Opinion filed November 29, 1920.
    Roy Massena, for appellant; Charles S. Deneen, of counsel.
    Novak & Novak, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal by defendant from an adverse. judgment in a trial of the right of property. The facts are that on June 15, 1917, Frank Zozakiewicz executed a note for $700 to Stanley Zola, plaintiff, secured by a chattel mortgage on fixtures and stock of goods in the store at No. 835 West 123rd street, Burr Oak, Calumet Township, Cook County, State of Illinois. The mortgage was acknowledged before a justice of the peace of Blue Island, Calumet Township, and recorded in the recorder’s office of Cook county. November 12, 1917, the mortgagee took possession of the property under the terms of the mortgage. A sale was had and a bill of sale was given to the purchaser, John Humla. November 16, Humla sold the property to Stanley Zola and gave a bill of sale therefor, and Zola took possession of the property, remaining therein and conducting the business of a grocery and meat store. He opened an account in his own name with Klein & Schroth, from whom he made daily purchases of groceries. November 26, Klein & Schroth sued out a writ of attachment and the constable levied on the fixtures and the goods in the store. The attachment writ ran against Frank Zozakiewicz, the former mortgagor, and was based upon some indebtedness of his. Subsequently, on being informed that Zola had purchased the property, this levy was released. Zola continued in possession and carried on the business. December 7 a second attachment was sued out of the justice court by Klein & Schroth upon their claim against the mortgagor. The fixtures and merchandise were levied upon by defendant, Zacher, who is a constable. The writ was returnable December 12, and this return recites that the attachment was released by order of plaintiff upon payment of the claim and costs. Zola served notice of his right to the property and trial was had before the justice of the peace issuing the writ, who dismissed plaintiff’s claim. On appeal to the circuit court the right of property was found in plaintiff and judgment entered accordingly.

Plaintiff claims the return of the constable shows that the property was released, the claim having been paid, and under such circumstances the property should have been returned to Zola. This would seem to follow as a matter of course and we find no contention to the contrary in the brief and argument for defendant.

The central point of defendant’s contention is alleged irregularity in the acknowledgment of the chattel mortgage, and the method of foreclosure. This is met completely by Springer v. Lipsis, 209 Ill. 261. The court there said:

“It makes no difference whether the mortgage was properly acknowledged or in proper form if possession had been taken of the property by a person having a lien. If a mortgagee takes possession of mortgaged property before any other right or lien attaches, his title, under the mortgage, is good against everybody, although-it is neither acknowledged nor recorded, or if the record be ineffectual by reason of any irregularity. (First Nat. Bank v. Barse Live Stock Commission Co., 198 Ill. 232.) ”

There is no showing that Klein & Schroth had any lien upon this property at the time of the execution of the chattel mortgage or when the mortgagee took possession, and it is sufficiently proven that he took possession and conducted the business and also purchased goods from the attaching creditors, so they had actual knowledge of the sale and change of possession.

As to the question of after-acquired property, the goods mortgaged were described as “groceries, canned goods and meats,” and there is no evidence that any after-acquired property was in the store at the time of the foreclosure or of the attachment. Furthermore, it seems that no claim of after-acquired property was made upon the trial, so it cannot be made here for the first time.

Under the facts and the law, the finding of the circuit court was right and its judgment is affirmed.

Affirmed.

'Holdom, P. J., and Dever, J., concur.


author: Mr. Presiding Justice Barres

text:
    Garden City Fan Company, Appellant, v. Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, Appellee.
    Gen. No. 25,527.
    1. Estoppel, § 89

      —when principal is not estopped by act of agent. A shipper who ships goods to another city consigned to itself is not estopped to deny that it ordered the carrier to deliver the goods to a third person merely because such delivery was directed by one who acted as commission sales agent for the shipper in the city to which the goods were shipped and who was the only person in any way contiected with the shipper in such city.
    2. Carriers, , § 79*—when carrier is liable for wrong delivery. A carrier cannot escape liability to a shipper for delivering goods to another than the consignee merely because it was directed over the telephone to make such delivery by an unknown person as to whose authority it was not informed and made no inquiry, notwithstanding the telephone over which such direction was given appeared in the telephone directory in the shipper’s name.
    3. Carriers, § 79*—what is duty of carrier in delivering goods. The absolute duty of delivery by a. carrier to the proper person is such that it acts at its peril and is liable for delivery to the wrong person regardless of negligence or mistake.
    4. Carriers, § 95*—what is extent of liability for wrong delivery. A carrier delivering goods to other than the consignee without authority is liable for the proven reasonable market value of the goods.
    Appeal from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Reversed with a finding of fact.
    Opinion filed November 30, 1920.

      Stoll & Shepherd, for appellant.
    Loesch, Scofield, Loesch & Richards, for appellee.

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

   Mr. Presiding Justice Barres

delivered the opinion of the court.

This is a suit to recover damages for failure of appellee to deliver goods shipped and consigned by appellant to itself at Pittsburgh, Pennsylvania. On their arrival over the road of defendant, a connecting carrier, its agent' called up a telephone number in the Pittsburgh telephone directory, appearing in plaintiff’s name, which was responded to by one Hendrickson who occupied the office to which the call came. He stated that the party answering the call was the consignee, that the goods were for Baker, Smith & Company and that they wanted them delivered at the Duquesne freight station. The goods were accordingly delivered to said firm at said station.

Hendrickson was a commission sales agent for appellant and other concerns. He had no authority to close a contract for appellant without its approval. His authority was confined to negotiating sales, for which, if allowed, he received a commission. He had nothing to do with the shipment or delivery of goods sold. It is not even claimed by appellee that such limited authority as he had justified delivery of the goods on such directions or instructions, if they may be so construed. But it claims that because Hendrickson testified that he had plaintiff’s authority to put its name in the telephone book, and such testimony was not expressly denied, plaintiff is estopped to deny that it existed as a corporation in Pittsburgh, and, that inasmuch as Hendrickson was the only person in any way connected with it in Pittsburgh, also estopped to deny that it ordered the delivery of the freight to Baker, Smith & Company. We do not think that the latter contention is tenable, or that the carrier can escape liability by accepting directions from an unknown party over the telephone, even though the telephone was in the name of the consignee of the goods. Unquestionably the absolute duty of delivery by a carrier to the proper person is such that it acts at its peril and is liable for delivery to the wrong party regardless of negligence or mistake. This is fundamental. (10 Corpus Juris, secs. 377, 378; 4 R. C. L. sec. 297.) It does not appear that plaintiff made any inquiry with respect to Hendrickson’s authority, although this was the first business it had done with plaintiff or its agent.

The judgment will be reversed and a judgment entered here with a finding of fact for the proven reasonable market value of the goods shipped, which, with interest from June 1, 1916, at the rate of 5 per cent, amounts to $688.

Reversed with a findmg of fact.

Gridley and Matchett, JJ., concur.


author: Mr. Presiding Justice Barnes

text:
    The People of the State of Illinois, Defendant in Error, v. Max Spiegel, Plaintiff in Error.
    Gen. No. 25,836.
    1. Husband and wife, § 272

      —when husband is criminally liable for nonsupport. The Act of 1915 (Callaghan’s 1916 Stat. ¶ 3444), providing for the punishment of a husband who neglects and refuses to support and maintain his wife, contemplates that the support due the wife must be required and rendered in Illinois.
    2. Husband and wife, § 275*—when judgment for nonsupport is erroneous. In a prosecution of a husband under the Act of 1915 (Callaghan’s 1916 Stat. ¶ 3444) for neglect and refusal to support his wife, where the evidence in the record indicates that defendant left his wife in New York, where they were then living and that she did not know his whereabouts until 6 or 7 months before the proceedings were instituted, and there is nothing to show that she notified him of her presence in Illinois or made any demand upon him for support before instituting proceedings, and the evidence also tends to indicate her intention to continue to reside in New York, a judgment finding defendant guilty will be reversed.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1920.
    Reversed.
    Opinion filed November 30, 1920.
    L. A. Gilmore, for plaintiff in error.
    Maclay Hoyne and Edward E. Wilson, for defendant in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Plaintiff in error was found guilty of neglect and refusal to support and maintain his wife, in violation of the Statute of 1915. (Callaghan’s 1916 Stat. ¶ 3444.) They were married in Hungary, came to the United States in 1889, and lived in New York until March, 1904, when he left her there with two minor children, came west, and has resided in Chicago since 1916.

She claims not to have known of his whereabouts since March, 1904, until within 6 or 7 months prior to the trial, when she learned he was in Chicago, and that she never'heard, nor received money from him in the meantime. He claims that shortly after he left New York he came to Chicago, obtained a position, furnished an apartment, wrote three letters to his wife, inclosing small sums of money, received a letter from her in November, 1904, which occasioned a suspension of any further communication between them, and admitted that he had been living with another woman since 1906.

In the view we take of the case we shall not refer to the materiality of evidence received or rejected, but rather to the omission of necessary proof. The act on which the information is predicated contemplates, we think, that the support due the wife must be required and rendered in this State. There was no evidence tending to show that the wife had come, or was willing to come, into Illinois for support in this State, or that she took any steps to obtain it from him. after she learned he was here. The record indicates that some months after she so learned she came on from her home in New York, and apparently without demand on him for support or even notice to him of her presence in Illinois began criminal proceedings against him, first for bigamy, and then, when the court held the offense was outlawed, changed the charge to the one under consideration.

To show the refusal charged we think under such a state of facts there should have been either proof of an express demand for such support or of other circumstances from which it would be implied, and to show neglect, there should have been proof charging her husband with knowledge that she had come into this State, where the cause of action must arise. There was no such proof. On the contrary the record indicates an intention to continue her residence in New York, and that she came here, not to secure his support but merely his punishment. But in our view of the law he cannot be punished under the act in question without some such proof of either neglect or refusal to support and maintain his wife in this State as above indicated, and that was not given. Hence the judgment will be reversed.

Reversed.

Gridley and Matchett, JJ., concur.