text:
    Miles McFadden, Administrator, Appellant, v. Saint Paul Coal Company et al., Appellees.
    Gen. No. 5,789.
    1. Mines and minerals, § 136*—when Mines Act does not permit a double recovery for death of employe. Where separate actions for death are brought under the Injuries Act, J. & A. If 6185, and the Mines Act, J. & A. 1f 7503, the Mines Act does not permit of a double recovery where the beneficiaries in the separate suits are identical. i-
    2. Mines and minerals, § 138*—who may bring action for death of employe caused by wilful violation of statute. The Mines Act, R. S. oh. 93, § 29c, J. & A. i 7503, gives the right of action to the personal representative of the deceased for the exclusive benefit of the widow and next of kin, and also to any other person or persons who were dependent for support on the person killed.
    3. Mines and minerals, § 138

      —parties in suit for wilful violation of Mines Act. A joinder of two of the classes of beneficiaries named in the statute, such as the widow and the lineal heirs, improper.

      4. Mines and minerals, § 195

      —measure of damages for death of employe resulting from wilful violation of Mines Act. Damages are not limited to the pecuniary loss of the persons prosecuting the suit; the pecuniary loss sustained by all of the beneficiaries named in the statute seems to be a proper consideration in measuring the damages.
    5. Compromise and settlement, § 4

      —when personal representative may compromise claim. Personal representative in an action for wrongful death under the Injuries Act, J. & A. If 6185, has authority to settle, compromise and discharge the claim.
    6. Compromise and settlement, § 11

      —when compromise of suit operates as bar to another suit. In an action under the Injuries Act, J. & A. If 6185, to recover for the death of an employe in a mine, a compromise of a suit for such death under the Mines Act, J. & A. 1f 7503, operates as a bar to the suit under the Injuries Act when the beneficiaries are identical.
    7. Appeal and error, § 198

      —constitutional questions. When constitutional question is involved, appeal should be to the Supreme Court.
    8. Appeal and error, § 206

      —presentation of constitutional questions. To raise a constitutional question it should be argued in the first brief so that appellee might answer it.
    9. Appeal and error, § 1782

      —when judgment will be reversed to enable appellant to recover nominal damages. Cause will not be reversed merely to enable the appellant to maintain the action and recover nominal damages.
    Appeal from the Circuit Court of Bureau county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 17, 1913.
    J. L. Murphy, for appellant.
    Duncan, Doyle & O’Conor, for appellees.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

On November 13, 1909, Andrew MeFadden was imprisoned in the mine of appellees at Cherry, Illinois, by a great fire that rendered the places of exit impassable so that he and many others were confined below in the mine until they died. He left him surviving his father and mother and several brothers and sisters, all dependent upon him for their means of support, and no widow. Miles McFadden, his father, was appointed administrator of his estate and as such administrator commenced this suit, filing a declaration charging negligence of appellee and averring due care on the part of deceased, and containing other averments proper and necessary to bring the case under our Injuries Act. (Chap. 70, E. S., J. & A. 6185.) Appellees filed the general issue to this declaration. Afterwards said Miles McFadden and Ann Jane McFadden, his wife, (father and mother of deceased), brought an action against appellees under our Mines Act (chap. 93, E. S., J. & A. ft 7503) and filed a declaration therein charging a wilful violation of various provisions of that act, setting up the same condition of facts alleged in the former declaration, omitting the averment of due care on the part of deceased, and framing the declaration with proper averments to bring the case strictly under the Mines Act. Appellees filed the general issue to this declaration and the plaintiff filed a similiter thereto. Issues being so joined and both cases pending in the same court, on November 20, 1912, appellee, Saint Paul Coal Company, paid said Miles McFadden and Ann Jane McFadden two thousand five hundred dollars in settlement and compromise of their causes of action against appellees and all other persons growing out of the death, and circumstances contributory to the death, of said Andrew McFadden, deceased; and thereupon the suit begun by them as the parents of deceased was dismissed, and the order of dismissal showed that the subject-matter of the controversy was settled. After-wards, appellees obtained leave of court and filed in this case a plea setting up said suit under the Mines Act, and said settlement and compromise thereof in bar of this action.. The trial court overruled a demurrer to the plea, and appellant, standing by his dejudgment went against him for costs and he brings the case here for review. The question is whether in case of death of an employe in a mine, where the facts support an action brought by an administrator under the Injuries Act and also an action brought by the widow or other proper party plaintiff under the Mines Act, and the beneficiaries are the same, both actions can be brought and recoveries be permitted in each or whether these two statutes shall be held to provide separate remedies for the same damage or injury and the beneficiaries be required to elect between them, or, if they be permitted to prosecute both, be allowed but one recovery.

Under the Injuries Act the suit is brought in the name of the personal representative of the deceased, and the amount recovered is distributed to the widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate. Section 33 of the Mines Act in force at the time this right of action accrued reads: “For any injury to person or property, occasioned by any wilful violations of this Act or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured for any direct damages sustained thereby; and in case of loss of life by reason of such wilful violation or wilful failure as aforesaid, a right of action shall accrue to the widow of the person so killed, his lineal heirs or adopted children, or to any other person or persons who were before such loss of life, dependent for support on the person or, persons so killed, for a like recovery of damages fb'r the injuries sustained by reason of such loss of life or lives,” etc., giving the right of action (1) to the widow, if there is one; (2) if no' widow, then to the lineal heirs or adopted children; (3) if neither widow nor lineal heirs nor adopted children, then to any person dependent for support on said deceased.

In this case the father and mother, as lineal heirs, were the proper and only persons authorized to bring the action under the Mines Act. Willis Coal & Mining Co. v. Grizzell, 198 Ill. 313. The statute authorizes but one action, but one recovery for the entire loss. Id., and Beard v. Skeldon, 113 Ill. 586. But the damages are not limited to the pecuniary loss of the persons prosecuting the suit; the pecuniary loss to all beneficiaries named in the act seems to be a proper consideration in measuring the damages. Id., and Cook v. Big Muddy Min. Co., 249 Ill. 41; Claffy v. Chicago Dock Co., 249 Ill. 210. A joinder of two of the classes, such as the widow and the lineal heirs, is improper. Hart v. Penwell Coal Min. Co., 146 Ill. App. 155.

While the beneficiaries under the two acts are not always the same, it appears by the pleadings in this case that they are here identical, and following the reasoning and conclusions of the Court in Terre Haute & I. R. Co. v. People, 41 Ill. App. 513, a double recovery for the same loss and damage cannot be permitted. That case has been followed and approved in Wabash R. Co. v. People, 78 Ill. App. 268, and Illinois Cent. R. Co. v. People, 81 Ill. App. 176, and in those cases as in this the recovery was sought under a statute authorizing the recovery of damages caused by a violation of its provisions, which is the legal effect of the statutory provision above quoted. Missouri & I. Coal Co. v. Schwalb, 74 Ill. App. 567.

The Mines Act was amended in 1911, and now gives the right of action to the personal representative of the deceased for the exclusive benefit of the widow and next of kin, and also to any other person or persons who were dependent for support on the person killed. Chapter 93, § 29c., Hurd’s B. S. 1911 (J. & A. jf 7503). What questions may arise in eases where there are beneficiaries entitled to recover under the Mines Act, that are not included in the provisions of the Injuries Act, either under the present or former statutes, we need not consider. We are dealing with a case where the parties entitled to share in the recovery are the same under each act.

We entertain no doubt of the power of the proper plaintiff in an action under the Mines Act to compromise and settle the claim. Under the Injuries Act the personal representative brings the action, not because of any duty imposed on him in that capacity, except by the statute designating him by that description to perform that duty. The Legislature might have, if it had seen fit, designated any other official and charged him with that duty. It is true that because of the personal representatives connected with the estate of the deceased, and consequently with the parties that are named as beneficiaries in actions for wrongful death under the Injuries Act, that there was much wisdom in choosing him to bring the action, but that does not affect the principle involved, and there can be no question but the personal representative in those cases has the authority to settle, compromise and discharge the claim. Henchey v. City of Chicago, 41 Ill. 136; Washington v. Louisville & N. Ry. Co., 136 Ill. 49. The right of action and legal title to damages recovered necessarily gives one the right to control the prosecution and disposition of a case. Id.

Appellant in his reply brief, for the first time, suggests and argues a constitutional question supposed to be involved. We have not much considered it. If there is a constitutional question involved the appeal should have been taken to the Supreme Court. If there is a question of that nature in this case that should be .considered by us on this hearing it should have been argued in the first brief so that appellees’ counsel might have answered it. We, however, fail to perceive the force of the suggestion,

It is possible the administrator in this case had the right under appropriate pleadings to maintain his action and recover nominal damages, but even if that be so the case should not be reversed for that reason. Chechley v. Illinois Cent. R. R. Co., 257 Ill. 491.

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Carnes

license: Public Domain

text:
    E. J. Fellows, Appellant, v. Frank Johnson, Appellee.
    Gen. No. 5,796.
    1. Fixtures, § 19

      —when tenant must remove fixtures. In the absence of provision in lease to the contrary, 'tenant must remove trade fixtures before he quits possession or he is deemed to have lost and abandoned them.
    2. Fixtures, § 19

      —effect of stipulation in lease giving tenant right to remove fixtures. Tenant’s right to remove fixtures exists only while he remains in possession in his character as tenant, though a stipulation in lease giving tenant the right to remove fixtures where no time is specified within which the removal is to be made.
    3. Fixtures, § 19

      —when tenant not allowed a reasonable time to remove fixtures after termination of tenancy. The rule that tenant may be allowed a reasonable time to remove fixtures after the termination of the lease in cases where the tenure of the tenant is uncertain, and may be unexpectedly determined, does not apply when tenant had reasonable time to remove them after .receiving notice of the termination of the tenancy.
    4. Landlord and tenant, § 220

      —statute construed on right of tenant to remove fixtures. Under Act of 1905 amending Landlord and Tenant Act, §. 33a, J. & A. T 7073, the tenant’s right to remove fixtures exists only while he remains in possession in his character as tenant.
    5. Appeal and error, § 528

      —when proposition of law should be presented to trial court. When no written proposition to be held as law, and no request to find specially upon any question of fact was submitted to trial court, court of review is not informed on what ground trial- court based its judgment.

      Appeal from the Circuit Court of Kane county; the Hon. Mazzini Slusseb, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 17, 1913.
    Harry G. Hempstead and Aldrich & Worcester, for appellant.
    Russell & McNerney, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, samp topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

Appellee, Frank Johnson, purchased a farm of one Wheeler that was in the possession of appellant, E. J. Fellows, as the tenant of Wheeler, under written lease for the term of five years beginning March 1, 1908, which lease contained the following clauses:

“It is further agreed that party of the first part reserves the right to terminate this lease on the first day of any March during the term thereof, providing first party sell the premises and give second party six months’ notice in writing.”
“It is further agreed that second party has the right to remove any improvements' he may have put there for his, own convenience and at' his own expense if called'upon to vacate the premises before the termination of this lease.” ' '

On the 13th of July, 1911, after the sale of the farm, Wheeler served a notice on appellant to surrender possession of the premises March 1, 1912, in accordance with the above provision of his lease. Appellant had erected at his own expense, and there was then standing on said farm, a frame addition to the barn, a shed and some other structures that were accessions to the real estate, but were within the terms of the above provisions of the lease giving appellee the right to remove, etc., and for. the most part were structures that could be removed without injury to the freehold, and, we assume, removable fixtures, such as the tenant has at common law and under section 33a of our Landlord and Tenant Act (J. & A. ¶7073), the right to remove during the term of his lease.

Appellant surrendered possession of said premises on or about March 1, 1912, in substantial compliance with the contract of leasing under which he was in possession and the notice to quit above mentioned. He left some articles of personal property, not here in question, on the premises for some tune, but there is little if any question that the possession of appellant under his lease, as well as his right of possession, terminated the first of March, 1912, or soon thereafter and before he made any effort to remove the property in question. As we read the record, appellee took possession of the premises at that time.

After the termination of his lease and his possession under it, appellant endeavored to remove the structures so erected by him and was prevented by appellee from so doing, whereupon he brought this action of replevin to recover the same, joining a count in trover in his declaration, placing the value by his pleadings and proof at fifteen hundred dollars; the property was not taken by the officer serving the writ, and a trial was had before the court without a jury on the trover count, resulting in a judgment against appellant (the plaintiff) from which he prosecutes this appeal.

If the above provision in the lease had been absent there would be no question that the judgment is in accord with the settled principles of law that the right of a tenant to remove trade fixtures must be exercised before he quits possession, and if not so- done it is deemed lost and abandoned. Sanitary Dist. of Chicago v. Cook, 169 Ill. 184; Galena Iron Works Co. v. McDonald, 160 Ill. App. 211; Donnelly v. Thieben, 9 Ill. App. 495. But it is insisted that the rule is different when the tenant’s right to remove rests on contract and that in such cases when no time is specified the tenant has a reasonable time for removal, and Merrell v. Garver, — Ind. —, 101 N. E. Rep. 152, decided by the Supreme Court of Indiana in March, 1913, with other cases is cited in support of that contention. In that case the Court quotes from Jones on Landlord and Tenant, sec. 719:

“While the common law right to remove trade fixtures must be exercised during’ the term, a similar privilege conferred by agreement is not so narrowly restricted as to the time when the removal must be effected.” The author cites Smith v. Park, 31 Minn. 70; Wright v. Macdonell, 88 Tex. 140; Davidson v. Crump Mfg. Co., 99 Mich. 501; Caperton v. Stege, 91 Ky. 351, in support of his text. These are all cases. where there was a stipulation in the lease that the tenant might remove buildings, etc., “at the expiration of the term” or “at the termination of this lease” or “at the end of the term” or “on the expiration of the lease,” and it was. held, that a reasonable construction of those clauses permitted the tenant to occupy the building’s during the entire term and then be permitted to remove them, having ingress and egress for a reasonable time thereafter for that purpose. A similar clause was so construed by our Supreme Court in Wright v. Lattin, 38 Ill. 293, where the right of a tenant to remove a fence placed by him on the demised premises, was reserved to him “at the expiration of the term.” The stipulation in the lease under consideration here contains no words of that import. In the same text book, section 713, the author says that some sort of agreement is necessary to entitle a tenant to remove the fixtures after the end of the term, citing Josslyn v. McCabe, 46 Wis. 591; Fitzgerald v. Anderson, 81 Wis. 341; and that such agreement must be definite and established by proof. While the American authorities are quite uniform on the general rule that the tenant must remove trade fixtures during his term, or at least during his occupancy of the premises under his lease, there is some conflict in the application of the rule; for instance, in this case of Merrell v. Garver, supra, the Court gives a list of authorities holding that the right to remove fixtures or improvements is j not lost by taking a new lease which does not reserve to the tenant such right, where such fixtures were installed, or improvements made, under a former lease given the right of removal to the tenant; and another list of authorities holding that the right is lost by taking a new lease not reserving to the tenant the right of removal, and in the latter list is included Sanitary Dist. of Chicago v. Cook, 169 Ill. 184. In that case our Supreme Court treated the question as a new one in this State and recognized a conflict of authority. That case was decided in 1897, and in 1905 our Legislature added an amendment to our Landlord and Tenant Act, (section 33a) as follows:

“Subject to the right of the landlord to distrain for rent a tenant shall have the right to remove from the demised premises all removable fixtures erected thereon by him during the term of his lease,' or of any renewal thereof, or of any successive leasing of the premises while he remains in possession in his character as tenant.” (J. & A. ¶7073.) This amendment was evidently added to remedy a supposed defect of the common law rule as held by our Supreme. Court resulting sometimes in the loss to the tenant of improvements that he had put upon the demised premises and which in equity and good conscience he should have the right to remove; but under that act the tenant’s. ¡right exists only while he remains in possession, in his ¡ character as tenant.

The Supreme Court of Wisconsin, in Phelps v. Ayers, 142 Wis. 442, held in a case in which the right of the tenant to remove improvements rested on the contract of the parties, and no time was specified within which such removal was to be made, that the law limits the time to the period covered by the lease, or the period after its expiration during which the lessee remains in possession of the premises, if the structure is of a nature which makes it an accession to the real estate and thus a fixture, and answered the suggestion of hardship inflicted on the tenant by saying, that it is attributable to his voluntary act in omitting to seasonably remove the building, and a failure to reserve the right to remove it after the expiration of the tenancy, and therefore the law is unable to afford relief if pecuniary losses are sustained through such omissions.

It is said in the text of 19 Cyc. 1068: “if the tenant surrenders or abandons the premises and the landlord takes possession, it bars the tenant’s right to remove the fixtures,” and in the same section the author says the rule in the English courts followed in many American States is that the tenant’s right to remove the fixtures continues during his original term and during such further period of possession by him as he holds the premises under a right still to consider himself as tenant.

Where the tenure of the tenant is uncertain and such that it may be determined unexpectedly to him, the rule requiring him to remove improvements during his possession as tenant is sometimes modified so as to allow a reasonable time for the removal of fixtures after the termination of the lease, and there are authorities under which, had appellant in this case been required to quit on so short a notice that he would not have had reasonable time to remove the improvements, the rule would not have been strictly enforced, but the contract required six months ’ notice of the termination of the tenancy and he in fact received over seven months’ notice, therefore, no question of that kind arises.

No written proposition to be held as law, and no request to find specially upon any question of fact, was submitted to the trial court. We are therefore not informed on what ground he based his judgment for the defendant, and even had he held the doctrine of reasonable time to remove improvements after the surrender of possession by the tenant, he might have held that appellant allowed more than a reasonable time to elapse before attempting the removal. We have not considered that question, and have not considered the question whether appellee as purchaser of the premises has superior rights. But assuming that appellee purchased with notice of the lease, and of appellant’s rights thereunder, and is in no better position by reason of being a vendee. and the improvements being, as between vendor and vendee, of such a character as to pass by deed of the realty, we hold that appellant by failing to remove the same during his term, or during the time he was in occupancy under the lease, lost his right to remove them. Such would have been the result had his right rested entirely on the common law or on' the statutory provision before quoted. It is said by counsel that both by common law and by statute the right to remove is limited in time, while it is not so limited by this contract; but there is nothing in this contract that either expressly or by implication gives appellant any right to enter and remove the structures after the termination of his lease. They were apparently to be treated as the property of the landlord and left on the premises if he occupied his entire term of five years and his right to remove them was conditioned on the termination of his lease by six months’ notice, which certainly afforded ample time for removal within the period of his rightful occupancy. Appellant’s right to occupy or enter upon the premises expired with the termination of his lease and his surrender of posesssion. No Illinois case is cited, and we know of none, that would permit him to enter thereafter to remove improvements he had placed thereon. To hold that he could do so, would be-to extend by implication the term of his lease as fixed by his contract, which does not seem to us consistent with the policy .of our law or with the proper construction of written contracts.

The judgment is affirmed.

Affirmed.


text:
    Philip Karcher, Appellant, v. Citizens State Bank of Herscher and Dan G. Lee, Appellees.
    Gen. No. 5,797.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Judgment, § 62

      —when bills avers grounds for vacating judgment by confession. Bill to vacate a judgment by confession on a demand judgment note and to enjoin a sale of complainant’s property, held to state grounds for equitable relief where it avers that complainant had forgotten about the note, but believes that it never represented an actual indebtedness, and if it did it was long ago paid, and avers that payee failed to disclose the indebtedness.

      Appeal from the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding. Heard in this court at the April term, 1913.
    Reversed and remanded.
    Opinion filed October 17, 1913.
    Statement of the Case.
    Bill filed by Philip Karcher against the Citizens State Bank of Herscher, and Dan G. Lee, sheriff of Kankakee county, to vacate a judgment entered by confession on a demand judgment note made by complainant and to enjoin a threatened sale of complainant’s property. Prom a decree dismissing complainant’s bill for want of equity, complainant appeals.
    A. L. Granger and W. R. Hunter, for appellant.
    Small & Merrill, for appellees.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number»

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

2. Equity, § 135 —right to plead ultimate facts. Though the rule is that facts, not conclusions of law and fact, should be pleaded, it is sufficient to plead ultimate facts.


text:
    Julia Strehlow, Appellee, v. Aetna Life Insurance Company, Appellant.
    Gen. No. 5,809.
    Insubance, § 667*—sufficiency of evidence as to cause of death. In an action on an insurance policy payable to beneficiary of insured in case of his death “resulting directly and independently of all other causes from bodily injuries effected solely through external, violent and accidental means,” a verdict of the jury on conflicting evidence finding that deceased died of diabetes caused by an accidental injury, held sustained by the evidence.
    Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbaugh, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 17, 1913.
    Evans & Evans, for appellant.
    Stevens, Miller & Elliott and Quinn, Quinn & McGrath, for appellee.
   Mr. Justice Carnes

delivered the opinion of the court.

On the night of June 5, 1911, Robert Strehlow was awakened from his sleep by a cry of 'fire, and saw through his window the house of a neighbor burning. He sprang out of bed, partially dressed and started for the fire. On his way he ran against a large iron kettle, fell over it bruising his abdomen and lower limbs. He was helped back to his house but soon returned to the fire and stayed until the buildings were burned, then returned home. He complained of distress and pain during the night and his wife and daughter administered home remedies. A physician was called the next morning and attended him several days. He was unable to work at his store for one week and not able to perform all the duties of his occupation for several days thereafter. There was no external appearance of injury a few days after the accident. He was fifty-six years old and had before that time been a man of apparently good health, but after the accident his physical and mental appearance was noticeably bad. August 7, 1911, (sixty-three days after the accident) while at his store he suddenly became unconscious, and in a state of coma remained there until he died on August 8th, never having regained consciousness. Two physicians attended him during this time of unconsciousness and thought that he died of dilatation of the heart due to the injuries received in the fall in June. After his death an autopsy was held which disclosed beyond much question that he died of diabetic coma.

He held two policies of insurance issued by appellant, Aetna Life Insurance Company, in favor of appellee, Julia Strehlow his wife, payable in case of his death “resulting directly and independently of all other causes from bodily injuries effected solely through externa], violent and accidental means.” She brought this action to recover on those policies and had verdict and judgment for the full amount thereof. The court instructed the jury, if it appeared from the evidence that death was in part caused by disease existing at the time of. the accident and in part by injuries from the accident, plaintiff could not recover; that if there was a pre-existing disease, then, if such injuries caused such disease to become acute and from such disease he went into a state of coma and died, still this would not entitle the plaintiff to recover. In short the court instructed the jury in accordance with appellant’s theory of the law, and in accordance with the conclusions of law reached by this court in Crandall v. Continental Casualty Co., 179 Ill. App. 330. The question presented is whether the disease of diabetes, of which deceased died, was caused by the accidental injury; if it was, appellee was entitled to recover. Crandall v. Continental Casualty Co., supra.

Several physicians testified for each of the parties to the suit, some of them of such standing and experience in their profession as to command great respect and confidence. It would serve no useful purpose to review; in detail their evidence. It is sufficient to say that it seems reasonably certain from their conflicting testimony that deceased died of diabetes; that the disease may have been of traumatic origin, the result of the physical injury, or it may have been from a nervous shock, the result of excitement occasioned by the sudden awakening, etc., or it may have been of long standing and aggravated by these occurrences; if of long standing, there was nothing apparent in the patient’s condition before the accident to indicate it, but that might be true.

While we are satisfied from the evidence that the cause of death may have been the accidental injury, and there was evidence that it was, and the court did not err in refusing appellant’s motion to direct a verdict in its favor, it is more doubtful whether the preponderance of the evidence is in favor of that conclusion, and we have carefully considered the question whether the court erred in denying* appellant’s motion for a new trial. The jury were the judges of the weight of the evidence, and their verdict should not be disturbed by any court merely because the judge or judges thereof would, if charged with the duty of jurors, find otherwise. If verdicts were to be set aside merely because the judge would not have so ' “ found the facts there would be little use in jury trials. In this case the moving picture of good health, accidental physical injury, bad health and death, all in a period of nine weeks, is evidence tending to prove cause and effect; with conflicting expert testimony juries would naturally so find, and on this record we are of the opinion it is not the duty of any court to disturb that finding.

The judgment is affirmed.

Affirmed.


text:
    O. P. Mills, Appellee, v. Chicago and Northwestern Railway Company, Appellant.
    Gen. No. 5,813.
    (Not to be reported in full.)
    Appeal from the County Court of La Salle county; the Hon. William H. Hinebaugh, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 17, 1913.
    Statement of the Case.
    Action of trover by O. P. Mills against the Chicago and Northwestern Railway Company to recover the value of one hundred and one hogs alleged to have been carried to the wrong place in disobedience to shipping instructions. From a judgment in favor -of plaintiff for two hundred and fifty-nine dollars, defendant appeals.
    Appellant contends (1) that there was no conversion, that at most it was only guilty of a breach of contract in shipping the hogs to Chicago; (2) that if there was a conversion it occurred at Chicago and the measure of damages is the market value at-that place; (3) that its liability is limited by the shipping contract.

      Abstract of the Decision.
    1. Cashiers, § 245

      —when action of trover lies 'for shipping live stoclc to wrong place. When a shipment of hogs is carried to wrong place in disobedience to shipping instructions and shipper is obliged to sell at such place at a loss, shipper may maintain an action of trover against the railroad company.
    2. Carriers, § 239

      —limitation of liability. Limitation of liability in shipping contract, not binding on the shipper in the absence of evidence showing his assent thereto!
    3. - Carriers, § 250a

      —measure of damages for conversion. In an action of trover for carrying hogs to the wrong place, the measure of damages is the market value of the hogs at the place they were ordered to he shipped when they should have been delivered there.
    4. Carriers, § 250a

      —measure of damages for conversion, exception to general rule. To the general rule that in case of conversion the measure of damages is the market value of the goods at the time and place of conversion, there is a recognized exception in cases against common carriers.
    5. Appeal and error, § 608

      —when excessiveness of verdict must be urged on motion for new trial. Where objection to excessiveness of verdict is not suggested on motion for a new trial, it cannot be urged on appeal except as it arises in rulings on the instructions and evidence.
    William D. Fullerton, for appellant; William G. Wheeler, of counsel.
    George W. Hunt and Butters & Armstrong, for appellee.

      See Illinois Notes Digest, Vole. XI to XIV, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.


text:
    Lulu King, Appellee, v. Chicago & Joliet Electric Railway Company, Appellant.
    Gen. No. 5,814.
    (Not to be reported in full.)
    Abstract of the Decision.
    Street railroads, § 85

      —when liable for injuries resulting from frightening a horse driven on highway. In an action for injuries received by plaintiff alleged to have been caused by the negligence of defendant in operating an electric street car on the highway,whereby the horse which plaintiff was driving was frightened and caused the carriage in which plaintiff was riding to be overturned in a gully at the side of highway, evidence tending to show that the motorman did not slacken speed of car when the horse showed great evidence of freight, held sufficient to sustain a verdict for plaintiff.
    Appeal, from the Circuit Court of Will county; the Hon. Charles B. Campbell, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 17, 1913.
    Statement of the Case.
    Action by Lulu King against the Chicago & Joliet Electric Railway Company to recover for injuries sustained by plaintiff resulting from the negligence of defendant in operating its car on the highway, whereby the horse which plaintiff was driving took fright and the carriage in which she was riding was overturned. From a judgment in favor of plaintiff for four hundred dollars defendant appeals.
    E. Meers, for appellant.
    Cowing & King, for appellee.

      See Illinois Notes Digest, Veis. XI to XIV, sanie topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.


text:
    John Joseph, Administrator, Appellee, v. Peoria & Pekin Union Railway Company, Appellant.
    Gen. No. 5,817.
    1. Master and servant, § 695

      —when evidence sufficient to sustain recovery for death of coal shoveler resulting from switching. In an action for the death of a railroad employe alleged to have been caused by the negligence of the company in not warning deceased of the switching of a coal car while deceased was in the performance of his duties as a coal shoveler, evidence that deceased was performing the duties of his employment at the time of the accident and tending to show that he did not understand orders to leave the car, held sufficient to sustain a verdict for the plaintiff.
    2. Witnesses, § 286

      —what party entitled to impeach witness as to independent matters elicited on cross-examination. Where a witness testifies' as to independent matters, on cross-examination as to such matters he is not a witness of the party calling him so as to preclude the party calling him from impeaching his testimony with reference thereto.
    3. Witnesses, § 286

      —when witness becomes a witness of party cross-examining him. Where a- witness is cross-examined as to matters not touched upon in the direct examination, the cross-examining party makes the witness his own as to such matters and cannot discredit him by showing prior contradictory statements in reference thereto; but the party by whom the witness was called may discredit him by showing such statements.
    4. Appeal and error, § 1482

      —when impeaching own witness not reversible error. Error of court in permitting a party to impeach his own witness as to certain matters established by other evidence, held not reversible error.
    Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbaugh, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 17, 1913.
    Stevens, Miller & Elliott, for appellant.
    Quinn, Quinn & McGrath, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

Joseph Gibron, appellee’s intestate, was in the employ of the appellant Railway Company as coal shoveler and with two other men engaged at night in unloading coal from a car through a trap in the bottom into a receptacle beneath the track; the process of unloading required the car to be moved after a part of its contents was discharged to bring the other part of the car over the opening beneath. Sometimes the workmen engaged in unloading the coal removed the car by hand, “pinching” it along to the required point; before doing this it was. necessary and usual to brush the coal and dirt from the tracks so as to clear from obstructions the short space over which the car would move. At other times a switch engine was called in by the man in charge of the yards to move the car.

On the night in question, Gibron and his two companions were endeavoring to move the car into its second position and were prevented from doing so by two empty cars, previously unloaded, in the way. Crozier, the weighmaster, told the men not to try further to pinch the car, that an engine would come and move it and that they should go to the roundhouse and get their lunch and he would call them when the car was ready. The other two men went to the roundhouse as ordered; Gibron apparently started to go with them, but in a short time it was discovered that he was not with them and on looking for him he was found dead on the track, having been run over by the car moved by the engine. There was no witness to the accident; no one knows why Gibron was there at the time. It was evident he was on the track and under or near the car, perhaps in the act of clearing the track as had been done at times prior to moving the car by hand.

He was from Syria, had been in this country about eight months and had worked as a shoveler at this point on the night shift for about a month with the other two men that were with him the night of the accident. He could understand little English.

The theory of appellee is that deceased had gone into the- hopper or had crawled under the car for the purpose of cleaning the coal from between the tracks, and that in so doing he was in the performance of his duty to his employer, as he understood it, and that the car was pushed upon him without warning.

The theory of appellant is that he was in the position where he was killed, not in the performance of his duty, but for some purpose of his own, or by chance, and that he was not only warned of the approach of the engine, but was also expressly ordered to leave the place at the time in question.

This action is brought to recover for that death and this is the second jury trial. At the first trial there was a verdict for five thousand dollars which was set aside by the trial court; at the second trial there was also a verdict of five thousand dollars, upon which appellee had judgment from which this appeal is taken. There is no question about the amount of the verdict. It is claimed by appellant that there is no evidence showing, or tending to show, deceased was at the place in question in the performance of his duty incident to his employment, or that he was in the exercise of due care for his own safety. It is claimed that the order of the foreman to leave the work and go to the roundhouse not regarded by deceased, was of itself a complete defense to the action, and the court was asked to so instruct the jury; but he modified the instruction so that the jury were informed that the order was a defense if the deceased understood it, and the question is fairly presented whether the order to be availed of as a defense must have been understood by the deceased. Appellant claims that the Court erred in so modifying the instruction and cites no authority, but argues that the evidence shows that deceased did understand the order and therefore the Court erred in incorporating that element in the instruction. Appellant does not,argue, and we assume it is not true, that an order from a master to a servant, which the servant did not understand and which the master, in the exercise of reasonable care might know that he would not understand, would be of any effect in considering a question like this of the master’s liability. There is evidence in the record tending to show that deceased did understand the order and there is evidence tending to show that he did not, and nothing in the evidence as we read it, or as suggested by counsel, that accounts for his being back upon the track in the position he was in when he was killed if he did understand the order. The fact that he was, in the night time, on this track, with no other purpose shown or suggested than to clear the track so that the car could move, is, of itself, evidence from which a jury might well be expected to find that he did not understand the direction to go to the roundhouse where it was warm,,and of his own choice stay on the track. On the other hand it is difficult to account for his being there cleaning the track; there is evidence tending to show that he would not naturally have been in the position which he was in when he was struck by the car if he had been engaged in cleaning the track; that there was no broom or other implement near him, such as was commonly used for that purpose. The evidence leaves the question of deceased’s position at the time and place in question somewhat of a mystery; but there is enough evidence tending to show that he was there in the performance of his duty, or in what he reasonably might have supposed was the performance of his duty to prevent the trial court from taking that question from the jury, and to sustain the jury’s finding thereon, and on the question, whether he did or did not understand the order, the finding of the jury should not be disturbed, especially after two juries have reached the same conclusion from presumably substantially the same evidence.

Appellee called William H. Conley, defendant’s roundhouse foreman, as a witness and asked him whether he gave any orders as roundhouse foreman with reference to a switch engine g'oing in on the switch at the time in question and Conley answered “Tes, he gave an order about two o’clock in the morning and the* switch engine run in on the track. ’ ’ • On cross-examination appellant asked him, to whom he gave the order and he answered “To the yard master,” naming him. Then he was asked, “Who else did you notify about the switch engine coming down?” And he answered that he notified the men working there, naming them and including Gibron, and said that he told them to get away from there and he would have the switch engine come and move the car and would call them when they got ready, and stated that Gibron was standing five or ten feet from him when he told them to go, and they stopped pinching the car and apparently made arrangements to go. On redirect examination he stated that he had testified on the former trial of the case that he did not remember what he then said about telling Gibron that they were going to.back the car down. Appellant objected to the inquiry about what the witness testified to on the former trial on the ground that it was an effort to impeach their own witness, and the court permitted the answer on the statement of appellee that he was surprised in the testimony of the witness; and he was asked the categorical question if he had been asked at the former trial “Had notice been sent to these men (meaning the coal shovelers) with reference to moving the car to the north to be unloaded” and whether he answered “No, I didn’t give any orders for it, the man that runs the coal chute gives those orders.” And after his answer that he did not remember, appellee was permitted to prove by the court reporter, over objections of appellant, that the question was so asked and so answered. We are of opinion that this was error if the witness in testifying on that subject of notifying the men is to be regarded as appellant’s witness, but it seems to us clear that his examination as to what notice, if any, he gave to the three coal shovelers was not proper cross-examination to the evidence developed on his examination in chief as to his giving the order to the yard master to have the engine sent down there; that the order to one department to send an engine to a given point, and the direction to men employed at that point to leave and go away, are two quite distinct and separate matters, and that appellant, if objection had been made, would have been compelled to desist from that line of cross-examination, and if it desired the testimony, call the witness as its own. The question is whether a witness, cross-examined as tó some matter not touched upon in the direct examination and giving competent evidence in the course of such cross-examination is to be treated as the witness of the party cross-examining him, and therefore not liable to impeachment by him and liable to impeachment by the other party, or whether on cross-examination he remains the witness of the-party calling him and is subject to impeachment as to such testimony by the party cross-examining him and not subject to impeachment by the party calling him. We are referred to no Illinois authorities on this question and know of none, but it seems reasonable, to put an extreme case, if a witness should be called by a party to prove some material fact, like the signature to an instrument, and then taken up by the other party on a so-called cross-examination as to other and disconnected matters, that as to those matters he should in fairness be treated as the witness of the party voluntarily calling them out .and using him as a witness thereto. In other words the question is, was the matter testified to by a witness on cross-examination, proper cross-examination, or was it an independent question and matter, and if the last, then as to that matter he should be treated as the witness of the cross-examining party and subject to impeachment by the other party. The following quotation is found in the text of Cyc.: “Where a witness is cross-examined as to matters not touched upon in the direct examination, the cross-examining party makes the witness his own as to such matters and cannot discredit him by showing prior contradictory statements in reference thereto; but the party by whom the witness was called may discredit him by showing such statements.” 40 Cyc. 2693. See also Wigmore on Evidence, vol. 2, sec. 914.

While we regard it error to permit the impeachment of a party’s own witness even in case of surprise, yet in this ease it is doubtful whether it should be regarded as reversible error, even if the correct conclusion be that the trial court permitted appellee to impeach his own witness. There is no doubt that Crozier, the weighmaster, did tell the men to leave the place, and this makes it less material whether Conley did or did not so tell them. The jury must have concluded that G-ibron was told to leave the place and go to the roundhouse, and that he did not understand the order, and that appellant knew or in the exercise of ordinary care should have known, that he would not understand the order, and therefore was negligent in not doing something further to make him understand and observe it. We' are of the opinion that appellee was impeaching, not his.own, but appellant’s witness; and are inclined to the opinion that if it were to be held that he was impeaching his own witness, it was not on this record reversible error. The evidence was conflicting and the question is whether the jury erred in weighing it. Judging only from the record, we would be much inclined-to find contrary to the verdict of the jury. But it is familiar doctrine that we must give weight to the consideration that not only the jury but also the trial judge had superior advantages for determining the weight and credibility of the evidence, and “we do not feel warranted in disturbing the judgment, based as it is on a second jury trial with the verdict the same in both trials.

The judgment is affirmed.

Affirmed.


author: Mr. Justice Dibell

text:
    Paul Lund, Defendant in Error, v. W. Irving Osborne et al., Receivers, Plaintiffs in Error.
    Gen. No. 5,754.
    1. Railroads, § 661

      —lohen person may assume that statutes and ordinances will he obeyed. A person has a right to presume that a railway company will obey the statutes and ordinances in force in a given place.
    2. Negligence, § 126

      —when due care on part of plaintiff need not he alleged. There can he a recovery for wanton and wilful misconduct, causing injury, without allegation or proof that plaintiff was in the exercise of due care.
    3. Negligence, § 217

      —when instruction as to due care on part of plaintiff, erroneous. An instruction which directs the jury to find for plaintiff “unless they also find from the evidence that the plaintiff was guilty of contributory negligence, consisting of a failure to exercise ordinary care in such manner that reasonable minds would not differ in declaring that such failure contributed to the injury complained of,” held clearly erroneous for the reason that it takes the question of contributory negligence from the jury and does not require plaintiff to prove that he exercised due care.
    4. Appeal and error, § 1611

      -—when failure of declaration to allege due care on part of injured plaintiff is cured hy verdict. Failure of a declaration in an action for personal injuries to allege due care on the part of the plaintiff is cured after verdict where it appears that due care on the part of the plaintiff is fairly inferable from what is alleged.
    5. Appeal and error, § 1595

      —when want of essential averments not cured hy verdict. Where a declaration omits to allege any substantial fact which is essential to a right of action-and which is not implied in or inferable from the finding of those which are alleged, a verdict for the plaintiff does not cure the defect.
    6. Appeal and error, § 1637

      —when erroneous instruction not cured by other instructions. Where an erroneous instruction directs a verdict, the error cannot be cured by other instructions for the court has no means of knowing which instruction the jury followed.
    Error to the Circuit Court of Lake county; the Hon. Charle Whitney, Judge, presiding. Heard in this court at the April term, 1913.
    Reversed and remanded.
    Opinion filed October 17, 1913.

      Bull & Johnson and Charles H. King, for plaintiffs in error.
    Paul MacGuffin and Cooke, Pope & Pope, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

The Chicago & Milwaukee Electric Railroad runs between Chicago and Milwaukee and runs in a northerly and southerly direction upon St. Johns avenue and crosses Central avenue, an east and west street, in the city of Highland Park. The tracks of the Chicago & Northwestern Railway are a short distance west and the passenger station of said railway is a short distance south of Central avenue and a short distance west of St. Johns avenue. At the time here in question, a car of the electric railway was running-south on St. Johns avenue, and a passenger train, south bound on the Northwestern Railway, was approaching the passenger station. The tower bell of the steam railway was ringing and its gates over Central avenue were being lowered. Paul Lund was on the east side of St. Johns avenue and desired to take passage on said Northwestern train. He was going across St. Johns avenue within the limits of Central avenue and was either walking fast or running to reach the Northwestern train, when he and said electric car collided on the eastern part of the rounded surface of the front of said car and he was thrown away from the car and was very severely injured. He brought suit against the receivers of said electric railway to recover damages for the injuries so sustained and had a verdict which was set aside, and another verdict upon which he had judgment. The receivers prosecute this writ of error to review said judgment.

The declaration consisted of two counts and of an additional or third count. The first count charged that plaintiff was exercising due care and that the defenclants carelessly drove the car at a dangerous rate of speed in crossing said Central avenue and struck the plaintiff and injured him. The second count contained no allegation that plaintiff exercised due care, but charged that plaintiff was necessarily crossing Central avenue to reach the Northwestern station about his business and that defendants were driving the car at a high rate of speed and knew that plaintiff was about to cross their tracks and did not use ordinary care to avoid injuring him, nor give any warning, but negligently, wilfully and wantonly ran the car against him and injured him; and that there was then in force in said city an ordinance which required defendants to maintain a flagman where it crossed any street in said city, whose duty it should be to signal persons traveling in the direction of such crossing and warn them of impending danger, and that defendants did not have a flagman at the crossing of Central avenue and plaintiff was not warned of the impending danger. The third count did not allege that plaintiff was exercising due care, but charged defendant, as in the second count, with a lack of ordinary care and with a failure to give plaintiff any warning and that they negligently, wilfully and wantonly ran the car against and injured plaintiff, and it set up another ordinance, then in force, requiring defendants to bring their cars to a full stop at and immediately before crossing Central avenue and providing a penalty for the violation thereof, and it charged that defendants did not bring said car to a full stop before crossing Central avenue.

In this condition of the declaration defendants contend that the court erred in admitting in evidence the two ordinances above referred to. It is contended by defendants that there could be no recovery under the second and third counts, which pleaded said ordinances, upon proof of mere negligence, because said counts did not charge that plaintiff exercised due care, and therefore do not state a case under which recovery for mere negligence could be had, but that recovery under those counts could only be had for wilful and wanton misconduct; and that charges of wilful and wanton misconduct cannot be sustained by allegation and proof of the violation of an ordinance, but that such proof only sustains a charge of mere negligence. There can be a recovery for wanton and wilful misconduct, causing injury, without allegation or proof that plaintiff was in the exercise of due care. Lake Shore & M. S. Ry. Co. v. Bodemer, 139 Ill. 596. Where in the same count negligence and also wanton and wilful misconduct producing injury are each sufficiently alleged, there may be a recovery, if the allegations relating to the charge of negligence are proved, though it is not proved that the conduct of the defendant producing the injury was wanton and wilful. Guianios v. De Gamp Coal Min. Co., 242 Ill. 278, and other authorities discussed by us in Ehrlich v. C. G. W. Ry. Co., 160 Ill. App. 379.

Plaintiff contends that where the negligence of the defendant, causing injury, is properly charged and due care by the plaintiff is not averred, the declaration is nevertheless good after verdict, and therefore the second and third counts are good as counts charging mere, negligence, after verdict, and therefore the ordinances were properly admitted. The contention that a declaration in case for negligence which does not aver that the plaintiff was in the exercise of due care is good after verdict is supposed to be supported by Chicago City Ry. Co. v. Cooney, 196 Ill. 466. The principle there announced is based upon 1 Chitty’s Pleading, 673, where it is said: “Where there is any defect, imperfection or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet, if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or. imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection, or omission, is cured by the verdict.” This has been applied in Gerke v. Fancher, 158 Ill. 375, and many other cases. But the rule, so announced in the. Cooney case, supra, was reviewed and explained in Walters v. City of Ottawa, 240 Ill. 259. It was there shown that the original declaration in the Cooney case was sufficient after verdict because the exercise of due care by plaintiff could fairly be implied from the allegations of the declaration, which are there stated. The rule in question is there further stated as follows. “If a declaration omits to allege any -substantial fact which is essential to a right of action and which is not implied in or inferable from the finding of those which are alleged, a verdict for the plaintiff does not cure the defect.” This is in full accordance with what is further said by Chitty at the page above quoted, viz: “On the one hand, the particular thing which is presumed to have been proved must always be such as can be implied from the allegations on the record, by fair and reasonable intendment. And, on the other hand, a verdict for the party in whose favor such intendment is made, is indispensably necessary, for it is in consequence of such verdict, and in order to support it, that the Court is induced to put a liberal construction upon the allegations on the record.” It is also in accord with what has been many times decided in this State from Smith v. Curry, 16 Ill. 147, to McAndrews v. Chicago, L. S. & E. Ry. Co., 222 Ill. 232, though sometimes the statement has been incomplete.

It must therefore be considered as the settled law that in order to permit the introduction of ordinances which only go to sustain the charges of negligence in the second and third counts, it must appear that due care by the plaintiff is fairly inferable from what is there alleged. The second count alleged that plaintiff was crossing said street in the conduct of his business; that he did not see defendant’s car approaching and did not hear any signal of its approach and did not receive any warning from defendants and was not warned of the danger of said approaching car and that the ordinance required a flagman on that crossing to signal persons and warn them of the approach of danger and that there was no flagman there. The third count charged in similar terms that plaintiff was necessarily crossing the avenue about his business and did not see the car or hear any signal of it and that the ordinance required the car to be brought to a full stop before crossing Central avenue, and that this car was not so stopped. A party has a right to presume that a railway company will obey the statutes and ordinances in force in a given place. Elgin, J. & E. Ry. Co. v. Hoadley, 220 Ill. 462; Dukeman v. Cleveland, C. C. & St. L. R. Co., 237 Ill. 104; Elgin City Banking Co. v. Chicago, M. & St. P. Ry. Co., 160 Ill. App. 364, and cases cited on p. 375. "We conclude that under these allegations of the second and third counts defendants could be convicted of negligence without a specific allegation in said counts that plaintiff was in the exercise of due care. Therefore, the court did not err in admitting the ordinances, it not being contended here but that the proof showed them duly adopted and in force at the date in question.

At the request of plaintiff the court gave to the jury instruction No. 6, as follows: “The court instructs the jury that if they believe, from the evidence, that at the time the plaintiff was crossing the railroad tracks of the defendant in Central avenue, the motorman of said car saw, or could by the exercise of ordinary care have seen the said plaintiff in time to have stopped the said car so as to have avoided striking him, and that he failed in the exercise of such care to do so, then the jury are instructed that they should find for the plaintiff, unless they also find from the evidence that the plaintiff was guilty of contributory negligence, consisting of a failure to exercise ordinary care in such manner that reasonable minds would not differ in declaring that such failure contributed to the injury complained of.”

It is contended that this was reversible error. It will be seen that it does not require plaintiff to prove that he was in the exercise of due care, and that it authorizes a recovery against defendant for mere negligence, without any reference to the charge of wantonness and wilfulness.

The last clause of the instruction is based upon language used in Joslyn on Personal Injuries in Illinois, page 71. We are unable to find any authority in Illinois which supports the doctrine there stated. It is held in Mueller v. Phelps, 252 Ill. 630, that where reasonable minds might reach different conclusions, the question of contributory negligence is for the jury, but this instruction tells the jury that if reasonable minds might reach different conclusions, then contributory negligence is not established. It thereby takes that question from the jury, if reasonable minds would reach different conclusions. Contributory negligence by plaintiff means a lack of due care by plaintiff which contributes to the injury. If plaintiff proves that he has exercised due care, then he is not guilty of contributory negligence. The burden is on plaintiff to prove that he did exercise due care. If the evidence is evenly balanced on the question whether plaintiff did exercise due care, then plaintiff has not proved that necessary allegation and he must fail; whereas, under this instruction, he would be entitled to recover. It thereby put upon the defendant the burden of proving that plaintiff did not exercise due care, instead of requiring plaintiff to prove that he did exercise due care. The jury should not have been directed to consider whether reasonable minds would differ upon the conclusion to be drawn from the proof. The true question was what conclusion those twelve jurors drew from it and not what other reasonable minds would think of it. We consider this instruction clearly erroneous. The fifth instruction concluded in the same way and would have clearly contained the same error were it not that it started with requiring the jury first to find that plaintiff was in the exercise of due care, in which case he could not be guilty of contributory negligence. This contradiction in the instruction was calculated to mislead the jury.

Plaintiff contends that the errors in these instructions were cured by other instructions which the court gave. Where an erroneous instruction directs a verdict, as these instructions do, the error cannot be cured by any other instructions, for the court has no means of knowing which instruction the jury followed. Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544; Cromer v. Borders Coal Co., 246 Ill. 451. The judgment must therefore be reversed for the error in giving these instructions.

■ Defendants contend that upon this record we should find plaintiff guilty of contributory negligence and not remand the cause. In view of the ordinances in evidence and the right of plaintiff to presume that they would be obeyed, we do not feel authorized to take that question from the jury.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.

Mr. Presiding Justice Whitney having tried the case in the court below took no part in this decision.


text:
    National Hotel Company, Appellee, v. Merchants’ Fire Assurance Corporation of New York, Appellant.
    Gen. No. 5,764.
    1. Insurance, § 150

      —when payment of premium to broker is payment to insurer. Where' an insurance company delivers its policy to the insured through brokers to whom the insured pays the premium, the company is liable on the policy though it does not receive the premium paid, where the facts show that it clothed such brokers with apparent authority to receive the premium from the insured.
    2. Insurance, § 187

      —what essential to enable insurer to cancel policy. Notice to insured of the cancellation of a policy within five days without returning the unearned premium, held ineffective.
    Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbaugh, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 17, 1913.
    Charles B. Obermeyer and Page, Wead, Hunter & Scully, for appellant.
    Giles E. Keithley, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

Under date of May 10, 1911, the Merchants’ Fire Assurance Corporation of New York issued a policy to the National Hotel Company, insuring the National Hotel against fire for three years in the sum of $2,500, and sent said policy to insurance brokers in Peoria, who are variously named in the correspondence herein but will here be called the agents. The agents delivered the policy to the insured a day or two later, and on May 22, 1911, the insured paid the premium, $85, to the agents. Thereafter a controversy arose between the agents and the insurance company as to the amount of the agents ’ commissions, and the insurance company did not accept what the agents remitted, and after a lengthy correspondence between the insurance company and the agents, the insurance company, on August 28, 1911, mailed a notice to the insured of the cancellation of said policy after five days from that date, and on September 12th the insurance company notified the insured that the policy was cancelled.

No premium was returned to the insured. The insured notified the insurance company that it should treat the insurance as in full force. On November 12, 1911, the insured property was destroyed by fire. It was worth over $100,000. The total insurance thereon was $90,000. If this policy was in force, the insurance company was' indebted to the insured for the full amount of the policy. Proofs of loss were duly made. The insurance company refused to pay and this suit was brought upon the policy. The insurance company pleaded non assumpsit, and that the policy had been cancelled, and those pleas were traversed. The cause was tried without a jury upon a stipulation as to the facts and upon the policy and upon certain correspondence. The insurance company presented and the court refused propositions of law, holding in effect that the agents were not agents of the insurance company, that payment of the premium to them was not payment to the insurance company, and that under the facts the policy was cancelled before the fire, and that the insurance company was not liable to the insured. The court found for the insured and judgment for $2,500 was entered against the insurance company and the latter appeals.

Under date of April 27, 1911, appellant wrote the agents a letter from New York City, the body of which is as follows:

“Replying to yours of the 25th inst., would state that we are' at present only represented at Chicago and do not contemplate extending our agency appointments beyond that point. Should you from time to time have any insurance to place on risks of large value, that is to say, carrying insurance of $50,000 or over, we would he glad to have you submit applications to this office by letter and, if acceptable, will send you policy which will, of course, be signed by our Chicago agents as a matter of form to comply with the law. All details in connection with the payment of the premium, etc., will be handled directly with this office. ’ ’

Under date of May 5, 1911, the agents wrote appellant a letter, portions of which, relating to the National Hotel, are as follows:

“We have line of $5,000, expiring May 10th for the above assured and herewith hand you forms for your policy in that amount. * * * We would like to be able to show our signature as agents, either below or on the form of the policy. This for the reason that we do not like to have the assured know that we sent off for their insurance.”

Under date of May 8, 1911, the insurance company wrote the agents a letter, a portion of which is as follows :

“Replying to yours of the 5th instant, would state that we can accept $2,500 for three years on the National Hotel as per forms you have sent us, and you can consider that amount as held binding from May 10th; policy will be sent you as soon as possible. We cannot make any arrangements whereby you can sign, as our agents, as this could only be done were you regularly commissioned as an "agent. * * * Commission on the National Hotel line will be 15 per cent.”

Under date of May 10, 1911, the insurance company sent the agents the'policy in question, using the following language:

“We enclose herewith Merchants’ policy No. 50025 for $2,500 covering the National Hotel Company, written for three (3) years, expiring May 10th, 1914.”

Thereafter much correspondence followed between appellant and the agents concerning their commissions upon this policy. The agents claimed twenty-five per cent, and remitted the premium, deducting that amount. Appellant refused to accept the remittance and insisted that the commissions should be fifteen per cent. The agents offered to compromise on twenty per cent, and this was rejected. During nearly four months that this controversy was pending between the agents and appellant, appellant did not notify appellee that the premium had not been remitted to appellant, and when on August 28th appellant notified appellee of the cancellation of the policy in five days, it only impliedly informed appellee the premium had not been received by requesting the remittance of $9.05, the earned premium, and adding that if payment of the full premium was made within the five days, the notice of cancellation might be regarded as void. To this appellee replied under date of August 30 that it had paid the premium on May 22 to the agents and asked appellant to “take this matter up with your agents.” To this appellant replied on September 12 that said agents were not the agents of the insurance company, but were brokers, and appellee replied on September 14, 1911, that it was in possession of letters written by appellant to the agents which contradicted the present claim of appellant that these were not the agents of the insurance company.

Said agents had never been authorized by appellant to act generally as the agents of appellant. They were insurance brokers and were agents for some companies and placed part of this insurance in companies for which they were general agents and then sought other insurance to make out the required amount. The letter of April 27, 1911, above quoted, shows that the insurance company requested said agents to submit applications for such insurance as this was, and the agents did submit this application pursuant to that suggestion. . Appellant issued a policy for one-half of the amount requested and sent said policy to said agents and undoubtedly intended that said agents should collect the premium. The statement by the insurance company in its letter of May 8 to the agent would naturally be understood to mean that the agents should deduct fifteen per cent, from the premium. In later letters the insurance company did not tell the agents that they ought not to have collected the premium, but only that they should not have deducted twenty-five per cent, from the premium for commissions. From May 10 to August 28 appellant gave appellee no notice that the premium had not been paid to it by the payment which appellant knew had been made to the agents. In Lycoming Fire Ins. Co. v. Ward, 90 Ill. 545, insurance had been obtained through a broker, as here, and the premium was not paid to the company, and liability upon the policy was sustained, and the Supreme Court said: “While he may not have been, in fact, the agent of the company, still, the company, by placing the policy in the hands of the street broker for delivery, is estopped from claiming that the payment made to him upon delivery of the policy is not binding upon the company. ’ ’ In Sun Mut. Ins. Co. v. Saginaw Barrel Co., 114 Ill. 99, where the policy was sent through insurance brokers, who collected the premium but did not pay it to the insurance company, liability upon the policy was sustained and the court held that it was a question of fact from the previous course, of dealing and from all the circumstances whether said brokers were authorized by the insurance company to receive the premium. In Gosch v. State Mut. Fire Ins. Ass’n, 44 Ill. App. 263, where a direct verdict of nonliability was reversed, though the company never received the premium, it was held that the delivery of a policy of this kind to a person apparently clothes him with authority to receive the premium. In Union Ins. Co. v. Chipp, 93 Ill. 96, insurance through a broker was sustained and the broker was treated as being in some respects the agent of the company and in other respects the agent of the owner. In Newark Fire Ins. Co. v. Sammons, 110 Ill. 166, the policy made the broker the agent of the assured and not of the company, and a cancellation had been attempted by notice to the broker, and the court held that the clause of the policy that the broker was the agent of the assured could not overcome the fact that the broker acted as agent of the insurance company, if in fact he did so act. Under the facts above stated and the foregoing authorities, we are of opinion that the court was warranted in finding that the agents were clothed with apparent authority to receive the premium from appellee for appellant and that appellee therefore paid appellant the premium in full for the three years.

The policy sued upon authorized the company to cancel the policy upon five days’ notice, and required the company, in such case, to return the unearned pro rata premium. No premium was returned or offered to appellee. In Hartford Fire Ins Co. v. McKenzie, 70 Ill. App. 615, we held that in such case the cancellation is not effected until the insurance company returns the paid and unearned premium to the insured. We there cited the decisions of the Supreme Court of this State sustaining that position. We also so held in Hartford Fire Ins. Co. v. Tewes, 132 Ill. App. 321. To the same effect is Peterson v. Hartford Fire Ins. Co., 87 Ill. App. 567. The principles as to cancellation laid down in the case last cited were not disturbed in the review of that case in Hartford Fire Ins. Co. v. Peterson, 187 Ill. 395, and 209 Ill. 112, and liability upon the policy was sustained. As the unearned part of the premium paid by appellee in the case at bar was not returned, and it refused to accept the cancellation, the cancellation was not effected and appellant remained liable.

The judgment is therefore affirmed.

Affirmed.


text:
    Norman A. Gault, Appellee, v. Earl O. Hunt, Appellant.
    Gen. No. 5,772.
    1. Evidence, § 345

      —when separate parol agreement may be shown. A separate parol agreement as to matters not inconsistent with the terms or legal effect of the written agreement, and on which it is silent, may he shown where it appears that the written instrument was not intended to he a complete and final statement of the whole transaction between the parties.
    2. Evidence, § 345

      —when prior verbal agreement is admissible. Proof of a verbal arrangement between the parties prior to the execution of a contract for the sale of land is admissible as explaining what was meant by numerous promises to pay interest made after the deed was delivered.
    3. Instructions, § 137

      —when requested instructions properly refused. Requested instructions which do not take into consideration the proof of essential matters may be properly refused.
    4. Appeal and error, § 1489

      —when error in admitting testimony will not reverse. Error of court in permitting a party to testify as to what was meant by the terms of a certain agreement, held not reversible error where his answer was what the court and jury must have understood from other evidence.
    Appeal from the Circuit Court of Jo Daviess county; the Hon. Richard S. Farrand, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 17, 1913.
    F. J. Stransky, for appellant.
    P. J. Campbell, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

Gault sued Hunt in assumpsit and filed the common counts only. Hunt pleaded the general issue and notice of counterclaim. Plaintiff’s claim was for interest on $27,500 from March 1, 1907, to March 1, 1908, at five per cent, per annum, amounting to $1,375. Defendant’s counterclaim was for a balance of $270.32 on a book account which he had against the plaintiff. The jury allowed both claims in full and gave plaintiff a verdict for the difference $1,104.68. Defendant appeals.

Gault owned a farm which Hunt wished to buy. The parties met on January 4, 1907, and on January 5, 1907, went to a lawyer and had a contract drawn up between them, by which appellee was to sell appellant the Thomas Burton farm for $27,500, which appellant was to pay on the first of March, 1907, and on receiving that sum from appellant, appellee was to deed the premises to appellant, free from encumbrance, with warranty. Appellee was to retain possession of the premises until the deed was delivered. A few days later appellee let appellant into possession of the premises. There was a mortgage for $16,000 on the premises given by appellee. When March 1, 1907, arrived the money market was stringent and appellant could not obtain the money. The parties thought the money could be obtained soon and the matter drifted for another year. On March 1, 1908, appellee left the deed at a bank and appellant there paid $27,-500 and the bank paid off the mortgage and delivered the deed to appellant and applied the rest of the proceeds upon an indebtedness of appellee to the bank. As this transaction stood, appellant had had the use of the farm, which contained three hundred and ninety-one acres, for one year without paying anything therefor. Appellee testified that on the day the contract was signed, but before it was signed, appellant expressed a hesitation to sign the contract for fear that he would not be able to obtain the money on March 1, 1907, and that appellee then said to appellant in effect that they had come to an agreement on the price and that if appellant would execute the contract to them, appellee would carry it one year at five per cent if appellant could not find the money by the first of March, and that appellee said: “If you do that we will go ahead and fix up the contract,” and they thereupon executed the contract. Appellee testified that he was not present on March 1,1908, at the bank when appellant paid $27,500 and received the deed which appellee Jiad left there, bnt that a few days later he met appellant and asked appellant to pay the interest on $27,500, for the one year of delay as agreed between them, and asked him to sign a note for it, and that appellant replied that he did not wish to give a note bnt that he would sell something soon and raise the money and pay said interest, and that thereafter on numerous occasions he asked appellant to pay the interest and appellant, promised to pay it soon, and after two or three years had passed and he had made at least twelve such promises, appellee told appellant that it must be brought to a conclusion and appellant told him he would think it over and tell him the next day, and on the next day appellant told him that he had made up his mind that he owed appellee nothing. Then appellee started this suit. Appellant denied said original arrangement and denied all the subsequent promises. Appellant owned another farm, called the Sand Prairie Farm. He testified that before the contract was signed, appellee promised to lend him $15,750 of the consideration for ten'years at five per cent, secured by a mortgage on the Sand Prairie Farm, and that the delay of one year was caused by appellee’s refusal to carry out that arrangement. Appellee denied that he ever promised to lend any money on the Sand Prairie Farm. In one place the abstract does not treat the evidence of appellee fairly. It states the evidence of appellee as follows: “Our agreement that I should take a part of this purchase price on his Sand Prairie Farm was made before the contract was entered into.” An examination of the record shows that appellant’s counsel embodied that proposition in a question to which appellee answered “Yes,” but that he almost immediately after stated, as he had done before, that he never agreed to take a part of the purchase price on the Sand Prairie Farm. At the request of appellant, the court instructed the jury that if appellee agreed to accept a mortgage on the Sand'Prairie Farm for ten years at five per cent, and then refused to do so and delayed the consummation of the sale, appellee could not recover. Therefore the verdict of the jury is a finding that the verbal contract set up by appellee was proved and that the verbal contract set up by appellant was not proved. These were questions of fact which the jury has decided and the trial judge has approved that decision. The testimony of appellee on that subject seems to us the more reasonable and we cannot disturb that conclusion under the evidence."

Appellant’s main contention is that the verbal arrangement set up by appellee must be treated as merged in the written contract signed later the same day, and therefore the law will not permit appellee to recover. Assuming this to be so, if the verbal agreement before the contract was signed was the end of the matter, we think that rule not applicable here. Appellee shortly thereafter let appellant into possession, contrary to the provisions of the contract. After the deed was delivered the proof is that appellant on at least twelve different occasions promised appellee to pay this interest. It was for the one year during which appellant had the use of the farm without any written contract entitling him thereto. The use of the farm would furnish a sufficient consideration for these subsequent promises to pay the interest. While proof of the verbal promise made before the contract was signed might not have been admissible by itself alone, yet it was admissible as explaining what was meant by the numerous promises to pay the interest made after the deed had been delivered. The objections of appellant to this verbal testimony were therefore properly overruled.

We are disposed to hold that this just verdict may also be sustained on the ground that the verbal arrangement, whether as appellee contends or as appellant contends, was outside of the subject-matter of the contract and therefore could be proved by parol. The written contract related only to a payment to be made and a deed to be delivered on March 1, 1907. The verbal arrangement, had before the contract was signed, related to the question what should be done if the money could not be obtained by March 1, 1907. The parties testify that the attorney drawing the contract said it was unnecessary that these matters should go into the writing. Appellee and appellant agree in their testimony that there was a verbal arrangement which was omitted from the written contract, under the suggestion of the attorney, and • therefore agree that the written contract was not a full statement of all that they had agreed upon. They differ entirely as to what the verbal agreement was. While it is usually the rule, where there is a written contract executed by the parties, that the writing contains the whole engagement of the parties, yet this is subject to the qualification that a separate parol agreement as to any matter not inconsistent with the terms or legal effect of the written agreement, and on which it is silent, may be shown, where it appears that the written instrument was not intended to be a complete and final statement of the whole transaction between the parties.” Fuchs & Lang Mfg. Co. v. Kittredge & Co., 242 Ill. 88.

It is argued that the court erred in permitting appellee to testify what was meant by carrying the consideration one year at five per cent., but the answer he gave was what the court and jury must have understood from the other evidence. After the deed had been delivered, appellant sold appellee a lot of steers for $2,500 and appellee paid in full therefor. It is argued that if this interest had been due him he would have deducted it then. Appellee explains this by testifying that appellant at that time told him that be needed the money and so he paid cash for the steers. Appellee requested no instructions. The court gave certain instructions at the request of appellant and refused three instructions which he requested. They did not take into consideration the proof of numerous promises to pay this interest made after the deed had been delivered, and therefore they were properly refused.

The judgment is affirmed.

Affirmed.