text:
    Elizabeth Whiteside, Plaintiff in Error, v. T. J. O’Connors et al., Defendants in Error.
    1. Instructions—estoppel to complain. A party cannot complain of instructions because of a vice common to instructions given at his own instance.

      2. Instructions—must not single out particular mtness. An instruction is erroneous which calls particular attention to the relationship of any witness in the cause to the plaintiff in the action.
    3. Dram-shops—section 9 of act construed. In an action to recover by a wife for injury to her means of support by the intoxication of her husband resulting in his death, it is not necessary in order to recover that such intoxication be shown to be “the efficient and proximate cause” of the death of such husband. It is sufficient if it be the cause. If, however, a recovery is merely sought for injury to means of support in consequence of intoxication, habitual or otherwise, whereby the husband neglected his business and became impoverished, etc, it is incumbent upon the wife in such case to show that the intoxication caused in whole or in part by the defendant, was the proximate cause of the injury complained of.
    4. Dram-shops—when instruction in action under section 9 misleadimg. In an action for loss of support brought under section 9 of the Dram-shop Act an instruction given at the instance of the defendant is misleading which operates to excuse a defendant from any liability unless the jury believed from the evidence that such defendant sold intoxicating liquor to the husband of the plaintiff “in violation of the law pertaining thereto.”
    5. Dram-shops—what evidence competent in action under section .9. In an action under section 9 of the Dram-shop Act, it is proper to permit witnesses to testify as to whether the husband of the plaintiff was in the habit of becoming intoxicated.
    6. Dram-shops—what evidence incompetent in action under section 9. It is error to permit the defendant in an action under section 9 for loss of support to show that the plaintiff had received certain money as life insurance upon the death of her husband.
    Error to the Circuit Court of Montgomery county; the Hon. J. C. McBride, Judge, presiding. Heard in this court at the November term, 1910.
    Reversed and remanded.
    Opinion filed May 26, 1911.
    F. M. Gunn, for plaintiff in error.
    Carl M. Reisch, W. H. Nelms, Rufus M. Potts, and Alfred Adams, for defendants in error; Lane & Cooper, M. M. Creighton and S. W. Kessinger, of counsel.
   Mr. Justice Baume

delivered the opinion of the court.

This was an action instituted by plaintiff in error against defendants in error under section 9 of the Act entitled Dram-Shops to recover damages for injury to her means of support by the intoxication of her husband, or in consequence of his' habitual intoxication alleged to have been caused in whole or in part by defendants in error. A trial by jury in the circuit court of Montgomery county resulted in a verdict finding the defendants not guilty and judgment against plaintiff in error in bar of her action and for costs, to reverse which judgment this writ of error has been prosecuted.

The declaration contains two counts. The first count alleges in substance that on September 5,1906, and divers other days between that day and September 6, 1909, defendants in error gave and sold intoxicating liquors to William A. White-side, the husband of plaintiff in error, and then and thereby caused him to become and be, during that time habitually intoxicated, and that being so habitually intoxicated, he, in consequence thereof during the time last aforesaid, wasted and squandered his money and property and neglected to attend to his business, or in any manner to provide for the support of plaintiff in error; that by reason of the intoxicating liquors so sold and given by defendants in error to said William A. Whiteside he became so intoxicated and crazed in his mind that on September 6, 1909, while so crazed and intoxicated, and in consequence thereof, he committed suicide, etc. The second count further alleges that on or about March 1, 1909, by reason of the habitual intoxicated condition of her husband as aforesaid plaintiff in error was compelled to leave and abandon her home and to live separate and apart from her husband for several weeks, and that notwithstanding the knowledge by defendants in error of that fact, and of the fact that her husband was an habitual drunkard, they continued to sell and give to him intoxicating liquors whereby he remained intoxicated almost constantly and became mentally deranged and weak in mind as well as in body, and while in that condition by reason of the intoxicating liquors so sold and given to him by defendants in érror, he did on September 6, 1909, destroy his life by hanging.

As the judgment must be reversed and the cause remanded for the admission of incompetent evidence and the giving of improper instructions, we do not deem it necessary to enter into an extended discussion of the evidence. It is sufficient to say that the evidence adduced on behalf of plaintiff in error tended to establish her cause of action.

In several instructions given at the instance of defendants in error the jury were informed that before plaintiff in error could recover on account of the death of her husband they must believe from a preponderance of the evidence that his intoxication was the efficient and proximate cause of his death. At the instance of plaintiff in error several instructions were given to the jury wherein the doctrine of proximate cause was recognized as being applicable to the case, one of such instructions being as follows:

“That while in order to aid the plaintiff to recover, it is necessary that she prove by a preponderance of the evidence that intoxication caused in part by defendants was the proximate cause of his death, it is not necessary to prove that such intoxication was the sole cause of his death, and if at the conclusion of all the evidence you believe that the husband of plaintiff came to his death from causes combined with such intoxication, and but for such intoxication he would not have come to his death, then under the law you may find that the intoxication was the proximate cause of his death.”

It is now insisted by plaintiff in error that the doctrine of proximate cause was not applicable to that phase of the case, and that the instructions requiring the plaintiff in error to' show that the proximate cause of the injury to her means of support and of the death of her husband was his intoxication, caused in whole or in part, by the defendants in error, were prejudicially erroneous. It is well settled that a party cannot complain of error in instructions when like instructions were given at his instance; and while upon this record plaintiff in error is precluded from raising the question of the propriety of the instructions given at the request of the defendants in error, wherein they relate to the doctrine of proximate cause, in view of the fact that the case must be remanded for another trial we deem it proper to consider the question.

In support of the position that the instructions referred to were erroneous in the respect indicated counsel for plaintiff in error cite Jack v. Globe, 147 Ill. App. 176, where in discussing the third proposition insisted upon by plaintiff in error as requisite to be shown by the defendant in error, viz: “That such intoxication was the proximate cause of his death,” it was said: “With respect to proposition 3, we do not understand the law, in this state, to be as stated in that proposition. The question of ‘proximate cause/ in a technical sense, in the sense in which counsel argue it, is not involved in this case. A correct statement of that proposition would be ‘That such intoxication caused his death.’ The statute provides that one who shall be injured in means of support, in consequence of the intoxication of any person, shall have the right of action provided therein. It is not necessary to a right of recovery in this class of cases, under the statute, that the intoxication should be the immediate, direct or proximate cause; it is sufficient if it be the cause, and it is ‘no matter whether the jury would consider it a proximate or a remote cause.’ Kennedy v. Whittaker, 81 Ill. App. 605 (608) ; Munz v. The People, 90 Ill. App. 641 (653). ‘The statute gives a right of action to any one who shall be injured in person, or property, or means of support, in consequence of the intoxication, habitual or otherwise, of any person, and the party causing such intoxication, in whole or in part, cannot escape liability because he may not reasonably have foreseen the consequences.’ Roth v. Eppy, 80 Ill. 283.”

In Roth v. Eppy, cited in the Jack case, it was held that an instruction to the effect that defendant was not responsible for consequences which he or any reasonable or prudent man could not reasonably have foreseen as a natural consequence of selling liquors to the plaintiff’s husband, was properly refused. This holding merely implies that to constitute the intoxication the proximate cause of the injury resulting from such intoxication it is not necessary that the defendant might have foreseen the precise injury which resulted therefrom, and as thus stated the rule is within the definition of proximate cause in its legal sense. In Kennedy v. Whittaker, supra, it was held that an instruction which informed the jury that to entitle plaintiff to recover, not only must it appear that defendants sold intoxicating liquor to Hiller, which contributed to his intoxication, but also that such intoxication was the immediate or proximate cause of the injury and not merely the remote cause, or occasion of the injury, was properly refused as being calculated to mislead the jury because what was meant by remote and proximate cause was not defined.

In King v. Haley, 86 Ill. 106, the injury for which damages were sought to be recovered were directly inflicted by one Koffman, while intoxicated, and the court in construing the ninth section of the act entitled Dram-Shops, held that it provided for two separate and distinct causes of action—one for the direct injury inflicted by “an intoxicated person,” and the other for snch damages as might arise “in consequence” of such intoxication. It was there further held that the theory adopted hy the trial court that there could be no recovery except for injuries that resulted to the plaintiff in “consequence of the intoxication” of the person who inflicted the injury was erroneous and arose out of a mistaken view of the law. In each of the Jack, Kennedy and Munz cases as in the King case, the injury for which a recovery was sought was occasioned by the direct, affirmative act of the intoxicated person. When the distinction between the two grounds of action provided for by the statute is clearly recognized much of the uncertainty arising from the apparent indiscriminate application and reference to the doctrine of proximate cause in the adjudicated cases will disappear. When the action is for an injury resulting from the direct, affirmative act of an intdxicatcd person the doctrine of proximate cause has no application, and a liability accrues upon proof of that fact, but where the action is for an injury resulting “in consequence of intoxication habitual or otherwise,” it is incumbent upon the plaintiff to show that such intoxication was the proximate cause of the injury.

Section 9 of the act. entitled Dram-Shops "provides, in part, as follows: “Every husband, wife. . . . who shall be injured in person or property, or means of support by an intoxicated person, or in consequence of the intoxication, habitual or otherwise of any person, shall have a right'of action,” etc. The word, “consequence” or the phrase “in consequence of” employed by the General Assembly to indicate the basis of a right of action must be given its ordinary and commonly accepted meaning. Webster defines the word consequence thus, “that which follows something on which it depends; that which is produced by a cause.” The same word is defined in the Century Dictionary as “Connection of cause and effect; that which follows from, or grows out of any act, cause or series of actions; an event or effect produced by some preceding influence, action, act or cause.”

In Orient Ins. Co. v. Adams, 123 U. S. 61, it was held, that an exception in an insurance policy that the company should be free of all claim for loss or damage occasioned by the derangement, or breaking of the engine, or machinery, or any “consequence” resulting therefrom, meant immediate or proximate and not remote consequence.

The rules for determining whether a negligent act or omission is the proximate cause of an injury are stated in Seith v. Commonwealth Elec. Co., 241 Ill. 252, as follows: “The negligent act or omission must be the cause which produces the injury, but it need not be the sole cause nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury, or if it sets in motion a chain of circumstances and operates on them in a continuous sequence, unbroken by any new or independent cause. The question is not determined by the existence or nonexistence of intervening events, but by their character and the natural connection between the original act or omission and the injurious cons.equences. To constitute proximate cause the injury must be the natural and probable consequence of the negligence, and be of such a character as an ordinarily prudent person ought to have forseen might probably occur as a result of the negligence. It is not necessary that the person guilty of the negligent act or omission might have foreseen the precise form of the injury but when it occurs it must appear that it was a natural and probable consequence of his negligence. If the negligence does nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent independent act of a third person, the two are not concurrent and the existence of the condition is not the proximate cause of the injury. Where the intervening cause is set in operation by the original negligence, such negligence is still the proximate cause, and where the circumstances are such that the injurious consequences might have been foreseen as likely to result from the first negligent act or omission, the act of the third person will not excuse the first wrongdoer.” Within the rules thus stated the doctrine of proximate cause is properly applicable in an action for “injury occasioned in consequence of” intoxication.

In Emory v. Addis, 71 Ill. 273, the evidence tended to show that the deceased was killed by a railroad train, and it was held there was sufficient evidence to warrant the jury in finding that his intoxication was the proximate cause of his death. In Shugart v. Egan, 83 Ill. 56, the deceased was assaulted and killed by a third party, and judgment for the plaintiff was reversed because it did not appear from the evidence that the intoxication of the deceased was the proximate cause of his death. In Schmidt v. Mitchell, 84 Ill. 195, plaintiff’s husband while intoxicated received injuries at the hands of a third person which were alleged to have resulted in his death, and there was a like holding as in the Shugart case. In Schroeder v. Crawford, 94 Ill. 357, the plaintiff’s husband while intoxicated was killed by a railroad train and it was held that the intoxication of the deceased was properly found to have been the proximate cause of his death. In Meyer v. Butterbrodt, 146 Ill. 131, the deceased was drowned while bathing, and it was held that the question of proximate cause was properly submitted to the jury. In Triggs v. McIntyre, 215 Ill. 369, it was a controverted question of fact whether the deceased while intoxicated came to his death by suffocation or strangulation, or whether he was killed by a third person, and it was held that it was for the jury to determine from all the evidence in the case whether his death was due to intoxication as the proximate cause. In Stecher v. The People, 217 Ill. 348, one Sheffe, while intoxicated, shot and killed one Morton, and it seems to have been assumed by the court that the doctrine of proximate cause was properly involved. In all of the cases above cited, save the last, the facts involved were such as to make the doctrine of proximate cause applicable because the several causes of action were for injuries alleged to have resulted in consequence of intoxication and not by the direct, affirmative act. of the intoxicated person.

The precise question here involved is exhaustively considered in Bistline v. Ney, 134 Iowa, 172, and in the note to that case as reported in 13 L.R.A.(N.S.) 1158. In that case the court construed a statute in the exact terms of the statute in force in this state, and held it was not incumbent upon a wife in an action to recover for injury to her means of support by the suicide of her husband while intoxicated, against one who caused such intoxication, to establish that the intoxication was the proximate cause of the suicide, or that it would not have been committed but for the act of the party causing such intoxication. Referring to the rule of proximate cause it was said by the court in that case: “This rule is, of course, properly applicable where the right of recovery is based upon the second clause of the civil-damage statute, which makes the liquor dealer liable for injury sustained In consequence’ of intoxication of any person. But where recovery is sought under the first clause for injury done ‘by an intoxicated person’ the adjudicated cases are practically unanimous that when the plaintiff has proved the unlawful sale to a person on whom she is dependent for support, and the intoxication of such person thereby produces the injury done by him while in that condition to her means of support, she has made the case for which the statute provides; in other words, the statute indulges in the reasonable presumption that an act done to the injury of his family, by a person whose faculties are abnormally excited and confused by drink, especially where the act is of a character not ordinarily to be expected from a sane and sober person, is the result of his intoxication.” See also Currier v. McKee, 99 Me. 364, and note thereto in 3 Am. & Eng. Ann. Cases, 57.

We conclude that if the husband of plaintiff in error committed suicide while in a state of intoxication and the defendants in error contributed in whole or in part to produce such intoxication the rule announced in Jack v. Globe, supra, is applicable, and that it was only incumbent upon plaintiff in error to show that the intoxication of her husband was the cause of his suicide, either proximate or remote. See also England v. Cox, 89 Ill. App. 551. If, however, a recovery is sought by plaintiff in error for injury to her means of support in consequence of the intoxication, habitual or otherwise, of her husband whereby he neglected his business and became impoverished, or whereby he became deranged or despondent and committed suicide, it is incumbent upon plaintiff in error to show that the intoxication habitual or otherwise of her husband, which intoxication was caused in whole or in part by defendants in error, was the proximate cause of injury to her means of support in the manner indicated.

The first instruction given at the instance of defendants in error was misleading, in that it operated to excuse the defendant in error Charles Jensen, from any liability unless the jury believed from the evidence that he sold intoxicating liquors to the husband of plaintiff in error “in violation of the law pertaining thereto.” The instruction is inapplicable to the case. If Jensen sold intoxicating liquors to plaintiff’s husband, which intoxicating liquors contributed in whole or in part to his intoxication, habitual or otherwise, he, Jensen, would be liable in this action notwithstanding the fact that at. the time he sold such intoxicating liquors to plaintiff’s husband the latter was not habitually intoxicated. .The second instruction given at the request of defendants in error is erroneous, because it calls particular attention to the relationship of any witness in the case to the plaintiff in error. The instruction should have been general in its character and not limited to the witnesses who testified on behalf of plaintiff in error. What we have heretofore said relative to the application to the case of the doctrine of proximate cause renders it unnecessary to discuss in detail the several instructions bearing upon that issue.

It is further urged on behalf of plaintiff in error that the court improperly permitted witnesses to testify as to whether the husband of plaintiff was in the habit of becoming intoxicated. Evidence of like character was held to he competent in Gallagher v. The People, 120 Ill. 179; Nicholson v. The People, 29 Ill. App. 57, and Sheppelman v. The People, 134 Ill. App. 556.

Over the objection of plaintiff in error the trial court permitted counsel for defendants in error upon cross-examination of the plaintiff in error to show that she had received $1,000 under a policy of insurance upon the life of her husband. There was nothing in the direct examination of plaintiff in error to justify any inquiry by defendants in error relative to any life insurance, and such evidence was wholly incompetent and immaterial, and its admission was manifestly prejudicial to plaintiff in error. Deel v. Heiligenstein, 244 Ill. 239.

For the errors indicated the judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Baume

license: Public Domain

text:
    Jay Freeze, Appellee, v. J. F. Harris, Appellant.
    1. Appeals and errors—when rulings upon evidence not subject to review. In the absence of exceptions having been preserved the rulings of the trial court upon questions of evidence are not preserved for review.
    2. Instructions—must be predicated, upon evidence. An instruction should not authorize the inclusion in the verdict of an element of damage not supported by any evidence, but such an instruction will not reverse where it appears that the amount of the verdict rendered was amply sustained by the evidence offered.
    3. Instructions—when reference to declaration will not reverse. While an instruction which refers the jury to the declaration for a statement of the negligence charged is bad practice, yet the giving of such an instruction authorizing a recovery upon proof of such negligence xvill not reverse.
    Action in case for personal injuries, etc. Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Ray & Dobbins and D. C. Dobbins, for appellant.
    Henry I. Green and W. G. Palmer, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit by appellee against appellant to recover damages for personal injuries and for injury to a vehicle, alleged to have been caused by the negligent and wilful conduct of appellant in operating an automobile. A trial by jury in the circuit court of Champaign county resulted in a verdict and judgment against appellant for $300.

The declaration contains five counts. The first count alleges the negligence of appellant generally whereby a team of horses which appellee was driving became frightened and ran away. The second count charges that the automobile made loud and unusual noises and that appellant negligently drove the same in such close proximity to appellee’s team of horses that they thereby became frightened and ran away. The third count charges negligence generally. The fourth count charges that appellee’s team of horses became frightened at the approach of the automobile, the duty of appellant thereupon to come to a full stop until the horses had passed and the failure of appellant to discharge such duty. The fifth count alleges that appellant contrary to the statute negligently drove his automobile at a speed greatly in excess of twenty miles an hour for a distance of more than a quarter of a mile, etc.

The facts disclosed by a clear preponderance of the evidence are substantially as follows: On July 4, 1909, appellee accompanied by his wife and two children in a two seated conveyance was driving a team of horses in a westerly direction on'a public highway, and at the same time appellant, a physician, was driving a high wheel automobile on the same highway in an easterly direction; that as the automobile approached the team it was making considerable noise, and the team evidenced indications of becoming frightened; that appellee drove the team as far as possible to the right side of the highway where they started to shy and plunge; that appellant did not stop, or decrease the speed or lessen the noise of his machine as he continued to approach appellee, and that as he passed appellee the near horse lunged to the side and against the tongue, breaking it, and the team ran away, causing the injuries complained of. Upon this state of facts the jury were fully warranted in finding a verdict against appellant.

It is insisted on behalf of appellant that the driver of an automobile is only required to stop if it appears that horses are about to become frightened by the approach of an automobile. The evidence discloses that the horses were not only about to become frightened, bnt that they were in fact frightened when appellant approached in his machine, and that appellant must have observed their conduct in that regard.

Appellant preserved no exceptions to the rulings of the court upon the admission and exclusion of certain evidence and such rulings are not, therefore, properly preserved for review. We have, however, considered the objections urged to such rulings and find nothing therein that could have operated to the prejudice of appellant. While some of the evidence sought to be adduced by appellant was excluded in the first instance upon objection, it was subsequently disclosed upon the further examination of the witnesses.

The second instruction given at the instance of appellee includes as an element of damages the expense to which he was put for repairs to the carriage. While this element should have been excluded from the instruction, because of the absence of any evidence to support it, its inclusion could not have appreciably harmed appellant. The undisputed evidence discloses that the damage to the carriage was from $15 to $100.

The eleventh instruction given at the instance of appellee is not open to the objection urged. It fully includes the elements of proximate cause and of due care on the part of appellee. The twelfth instruction given at the request of appellee refers to the declaration for a statement of the negligence charged and authorizes a recovery upon proof of such negligence. While an instruction in this form is not to be commended, the giving of it does not necessarily constitute reversible error. We do not agree with counsel for appellant in their insistence that there is no evidence tending to show that appellant’s conduct in driving his automobile was wilful or wanton, and that the third, fifth and ninth instructions tendered by appellee were improperly given.

Appellant asked twenty-four instructions, of which the court gave nine to the jury. There -was no occasion for asking so many instructions in the ease, and those given fully covered the questions properly .involved.

There is no prejudicial error in the record and the judgment will he affirmed.

Affirmed.

Mr. Justice Philbrick took no part.


text:
    In the Matter of the Application of I. L. Hinson for his Release under Insolvent Debtors Act.
    Insolvent debtors act—who cannot avail of. If a general verdict be rendered under several counts of a declaration, of some of which malice is the gist and of others of which malice is not the gist, and if the prima facie ease as made by the creditor that the general verdict rendered by the jury was predicated upon the count or counts of which malice was the gist, the burden is upon the debtor to show that such verdict was rendered upon the count or counts of which malice was not the gist, and in the absence of any evidence being adduced by the debtor that such was the case he cannot avail of the provisions of the Insolvent Debtors Act.
    Appeal from the County Court of Piatt county; the Hon. Elim J. Hawbaker, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Hill & Drew and. C. E. Schroll, for appellant.
    A. C. Edie and E. J. Miller, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is an appeal by I. L. Hinson from an order of the county court of Piatt county remanding him to the custody of the sheriff, entered in a proceeding wherein said appellant had filed his petition under the Insolvent Debtors Act to he released from arrest and imprisonment upon a writ of capias ad satisfaciendum theretofore issued by the circuit court of said county upon a judgment of said court in favor of Ephraim Brown against appellant and others for. $3,413.33-J as damages in an action for tort.

A jury was impaneled to try the issues, under the petition, and at the close of all of the evidence the trial court instructed the jury to find the appellant guilty of fraudulently disposing of a portion of his property after the cause of action accrued to the judgment creditor, Brown, and also to find appellant guilty of refusing to surrender up his property to the sheriff to satisfy the execution, and upon such verdict so returned by the jury the court entered the order appealed from.

Section 2 of the act concerning Insolvent Debtors is as follows:

“When any person is arrested or imprisoned upon any process issued for the purpose of holding such person to bail upon any indebtedness, or in any civil action when malice is not the gist of the action, or when any debtor is surrendered or committed to custody by his bail in any such action, or is arrested or imprisoned upon execution in any such action, such person may be released from such arrest or imprisonment upon complying with the provisions of this act.” Rev. Stat. (1909) 1251.

It will be observed that the provisions of the statute for the release of insolvent debtors are not available to such debtor if the judgment recovered against him was in a civil action wherein malice was the gist of action. Jernberg v. Mix, 199 Ill. 254. The term “malice” as used in the section above quoted is held to apply to that class of wrongs .which are inflicted with an evil intent, design or purpose and implies that the guilty party was actuated by improper or dishonest motives. Jernberg v. Mix, supra; Kellar et alv. Morton, 228 Ill. 356.

The declaration in the action at law wherein a verdict and judgment for $3,413,331, was recovered against appellant and his co-defendants contained five counts and the verdict of the jury was a general verdict referable to all the counts of the declaration. It is not seriously urged by appellant that malice was not of the gist of the action as alleged in some of the counts of the declaration, and it may be conceded that neither the first, second, third nor fourth counts of the declaration states a cause of action of which malice is the gist. The fifth or additional count of the declaration alleges in substance that the plaintiff was the owner of an interest of the value of $2,000 in 320 acres of land in Grand Forks county, Forth Dakota, and also of $1,200 in cash; that the defendants solicited plaintiff to trade said assets for a farm of 160 acres in said county and state which they represented to he of the value of $7,200 and further represented that the title to said farm should he placed in plaintiff; that plaintiff placed the said assets in the hands of the defendants for the purpose of making said exchange of properties and believed and relied upon the said representations of the defendants and that they had made said exchange, and placed the title to the said 160 acres of land in the plaintiff; that thereafter P. B. Maxhimer, one of the defendants, told the plaintiff that the defendants would purchase said 160 acres of land from the plaintiff and give him $3,200 therefor, the payment of said $3,200 to he secured by the delivery to the plaintiff of good second mortgages on land in Forth Dakota, which land should he of the value of $3,200 above the first encumbrances thereon; that the plaintiff then and there accepted said proposition and thereafter the defendants conspiring to defraud and deceive the plaintiff delivered to him three mortgages purporting upon their face to he for $3,200 on three certain tracts of land—two in Minnesota and one in Forth Dakota; that plaintiff afterward learned that the person who gave the mortgages upon the two farms in Minnesota did not own the said farms or any interest therein and that said mortgages were third mortgages and were wholly worthless and of no effect;" that the said mortgage on the land in Forth Dakota was a third mortgage and that the two mortgages prior thereto were for $5,000, while the value of said land was only $3,600; that the defendants did not purchase for the plaintiff the said 160 acres of land in Forth Dakota and did not place the title thereto in him and did not use plaintiff’s interest in the 320 acres of land in ¡North Dakota or the $1,200 which he delivered to them for the purpose of acquiring said tract of 160 acres, hut that said defendants had agreed and conspired together to so shift around plaintiff’s property and make the said false and fraudulent representations so that he would lose his entire interest in said 320 acres of land and the said $1,200, and that the defendants converted to their own use the said $1,200 together with the interest of the plaintiff in said 320 acres of land; that upon learning the facts aforesaid plaintiff informed the defendants that he would not accept the said mortgages and demanded of the defendants that they repay him the said $3,200 which he had placed in their hands, hut the defendants refused so to- dp, etc.

Clearly the fifth or additional count of the declaration states a cause of action of which malice is the gist within the meaning of the statute.

In Jernberg v. Mix, supra, it was held that where there are several counts in a declaration and malice is the gist of some and not of others the judgment is not conclusive that there was malice, because the verdict may have been returned upon a count which did not include that element; that in such a case a petitioner seeking his discharge is not estopped by the judgment to show that malice was not the gist of the action against him but may show that the verdict and judgment were- based upon a count or counts wherein malice was not the gist of the action. It was there further held that where there were issues on all the counts of the declaration a general verdict of guilty against the defendant was responsive to such issues and included a finding against him upon all of them.

The record in the suit at law against appellant makes a prima facie showing that malice was of the gist of the action, and the burden was cast upon appellant to show that the verdict upon which the judgment was rendered-was returned under a count of the declaration of which malice was not the gist. Jernberg v. Mix, supra.

Upon the trial of the ease at bar appellant offered no competent evidence whatever which tended to overcome the prima facie case made by the record in the suit at law that the general verdict returned against him was referable to tiie count of the declaration of which malice was the gist. In the absence therefore of any proof by appellant that such verdict was returned against him under a count of the declaration of which malice was not the gist, he could not avail himself of the provisions of the statute relating to the discharge of insolvent debtors and the only order proper to be entered in the case was that he be remanded to the custody of the sheriff.

The views above expressed make it unnecessary to consider the other question sought to be raised upon the record, and the order of the county court will be affirmed.

Affirmed.


text:
    Thomas Bateman, Administrator, Appellee, v. Illinois Central Railroad Company, Appellant.

      Verdicts—when not excessive. Held, in an action for death caused by wrongful act, that a verdict of $3800 was not excessive and was not induced by improper consideration of services which had been rendered by the intestate to her next of lcin.
    Philbrick J., dissenting.
    Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of De Witt county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Lemon & Lemon, for appellant; John G. Drennan, of counsel.
    Herrick & Herrick, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is an appeal from a judgment in favor of appellee against appellant for $3,800.00 as damages for wrongfully causing the death of appellee’s intestate, Callie Parrish. It was conceded upon the trial that appellee was entitled to recover damages, and the only controversy related to the amount of such damages. It is insisted that the damages awarded by the jury are excessive, and that the amount of the verdict was induced by the admission of incompetent evidence and by the improper argument of counsel for appellee.

At the time of her death, appellee’s intestate was a widow, 37 years of age and in good health, and resided with her parents upon a large farm. Her next of lrin was her son, Joseph, aged 16 years, who resided with his mother and grandparents. Having established these facts, and the further fact that at the time of her death the deceased was doing work at home, counsel for appellee asked the witness, a sister of the deceased, the following question: “Do you know what her services were fairly and reasonably worth at and just prior to her death?” To this question counsel for appellant objected upon the ground that there should be added to the question the words following: “to any one requiring services such as she rendered.” Counsel for appellee then re-formed the question to comply with the objection and counsel for appellant then objected to the words “such services as she was rendering,” and stated that the question was abstract and should not be applied to any particular person for whom the deceased was working, but what her physical and mental capabilities would enable her to earn. The objection was overruled and the witness answered the question in the affirmative, and in answer to a further question testified that she was at the place where her sister was employed from time to time and that she observed what services her sister was rendering. Counsel for appellee then asked the witness the following question: “State what services such as she was rendering, were fairly and reasonably worth to any person requiring such services as she was rendering at the time of the accident, and just prior thereto?” To which question counsel for appellant interposed an objection as follows: “Defendant objects for the reason that the deceased may have been performing duties and services that spring from filial love and affection that cannot be hired, and a person may place claims of fictitious value on it. I don’t care what services she was performing at home. If she was performing such services for her father and mother that perhaps she would not perform for anybody else, that does not apply in this case. It is only what her mental and physical capabilities would enable her to render. There might be some old persons there for whom she did some work and took care of them, but would not do for anybody else. It is what she would earn and leave to her estate.” The objection was sustained to the form of the question the court remarking: “If this witness knows what the services of a person-with the physical and mental acquirements of the deceased were worth, she can give an opinion as to their worth, but what they were worth to her father and mother or anybody who would take a fancy to her services wouldn’t come within the rule.” The witness then testified that she was acquainted with the physical and mental ability of the deceased and was the twin sister of the deceased. The witness was then asked the following question: “Do you know what the value of the services were worth, in the community, a fair and reasonable value, such as Callie Parrish was rendering at and just prior to the time of her death?” The record states the objection of counsel for appellant to said question as follows: “To which question, defendant by counsel then and there objected, for the reason that it says, the kind of services she was rendering. There is where the trouble comes in. There is some peculiar kind of services I apprehend, that she was looking after. That is not the rule.” The objection was overruled and the witness answered the question in the affirmative. The witness was then asked: “You may state what the services, that she was rendering and which she was mentally capable of as well as physically, were fairly and reasonably worth to any one in that community in which she was living at and just prior to the time of her death.” To this question counsel for appellant objected because the witness had not stated what the physical and mental capabilities of the deceased were or that she knew what the ruling wages and services of a person of that kind in the community at the time in question were, and because it calls for an opinion as to the services that may be of some peculiar value to her father and mother who have no claim for damages in the case, and because the witness had not stated the kind of character of the services the deceased performed or was capable of performing. The objection was overruled by the court but the question was not then answered by the witness. The witness then stated that she knew the kind of services the deceased was performing at and just prior to the time of her death. The witness was then asked to tell the jury what such services were, to which question an objection was interposed that the services were rendered to the father and mother of the deceased, who had no claim for damages, and which services had. no market value. The objection was overruled and the witness testified that the deceased did all the work about the house of eighteen rooms; kept all the books for her father; hired the men and kept account of all the work done on the farm of 756 acres; did all the work of a nurse who had quit and to whom twenty-five dollars a week was being paid; kept her father’s bank book and wrote most of his checks; hitched up her father’s horse for him and drove him around when he was unable to do so; and fired the furnace. The witness was then asked what such services as the deceased was rendering at and just prior to her death were fairly and reasonably worth to any one in the community where she was residing. The question was objected to as being irrelevant and immaterial and because it was only material to know what the deceased received for her services. The question was not answered but the witness further testified that she knew what the deceased was receiving for her services and that she thought the deceased was receiving about $200. She further testified that she did not believe she could tell exactly what compensation the deceased was receiving for her services at and prior to the time of her death.

Other witnesses called on behalf of appellee were examined by counsel for appellee substantially along similar lines and the cross-examination of such witnesses by counsel for appellant developed in detail the physical infirmities of the father and the personal care and attention which the deceased was necessarily called upon to render to her father.

It appears from the evidence that the son and next of kin of the deceased resided at the home of his grandparents with the deceased; that he attended school a portion of the time and did some work upon the farm, and that his board, lodging and clothing was provided by the father of the deceased ; that the deceased at the time of her death was in good health and vigorous mentally and physically, and that she received from her father from time to time such amounts of money as she required; that the reasonable value in the community of such services as she rendered to any one requiring like services was from $800 to $1,000 per year; that upon one occasion when she performed housework for a farmer she received from a dollar to a dollar and a half a day.

_ It is insisted on behalf of appellant that all of the evidence relating to the character of the work performed by appellee for her father and in his household was incompetent and that the award of damages by the jury was necessarily predicated upon a consideration of the value of the services of the deceased to her father and mother, rather "than to her son and next of kin. It will be observed upon a consideration of a portion of the record-heretofore quoted that counsel for appellant prejudged the character of services performed by the deceased, and that the objections indicated were interposed in an effort to exclude from the consideration of the jury the value of the services of the deceased to her father and mother and to limit the value of such services within the proper sphere, and that the suggestions to that end offered by counsel for appellant were uniformly adopted by counsel for appellee in framing questions to be answered by the witness. In one instance counsel for appellant objected to a proposed line of examination relating to the value of the services of the deceased upon the ground that the character of such services as the deceased was capable of performing had not been shown, and the inquiry was then made of the witness as to the character of such services. Counsel for appellant then objected to evidence which he had invited and which had been adduced upon his suggestion. In the course of the trial the jury were informed by the court that the worth of the services of the deceased to her father and mother were not proper to be considered as an element of damages, and at the close of the evidence the jury were specifically instructed at the instance of appellant that they had no right to allow any damages for or on account of the father or mother, or either of them being deprived of the services of the deceased, and that neither the father nor the mother was entitled to any damages.

In Dukeman v. C. C. C. & St. L. Ry. Co., 237 Ill. 104, it was held to be the established rule in this state that where the next of kin sustain a lineal relation to the deceased the law presumes some substantial damages from the relationship alone. Pecuniary loss as to lineal next of kin is held to mean what the life of the deceased was worth in a pecuniary sense to such next of kin and proof of the personal characteristics, mental and physical capacity and habits of industry and sobriety of the deceased are proper elements to be considered in determining such pecuniary loss. C. P. & St. L. R. R. Co. v. Woolridge, 174 Ill. 330.

Doubtless the value placed by some of the witnesses upon the services of the deceased as reasonably being worth from $800 to $1,000 a year was somewhat exaggerated, but eliminating the element of exaggeration induced in part by the personal services which the- deceased performed for her father, it is unquestioned that her services provided for the living expenses of her son and herself and the payment to her of such money as she needed, and taking into account her expectancy of life and the expectancy of the life of her son, and the personal services she performed for her son, and the fact that she was capable of earning at least forty dollars a month, we are not prepared to say that the jury were influenced by improper considerations in assessing the damages, or that the damages assessed are excessive.

We have considered the objections urged to the language employed by counsel for appellee in his argument to the jury and find nothing therein to which objections were not sustained by the court that could have operated to the prejudice of appellant.

There is no prejudicial error in the record and the judgment of the circuit court will be affirmed. One-half of the cost of the additional abstract filed by appellee will be taxed against appellant. .

'Affirmed.

Philbrick, J., dissenting.


text:
    John E. Standish et al., Appellees, v. William R. Nicolls, Appellant.

      Deceit—what representations will sustain action; what not. Eulogy of the worth of a machine, though the eulogy be extravagant, will not justify an action of deceit, but representations as to what the machine will accomplish, stand upon a different footing and if false will sustain the action.
    Assumpsit. Appeal from the Circuit Court of Pike county; the Hon Harry Higbee, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Anderson & Matthews and William Mumford, for appellant.
    W. E. Williams and A. Clay Williams, for appellees.
   Mr. Justice Baume

delivered the opinion of the court.

On August 20, 1908, appellant and appellees entered into the following contract:

“This indenture made and entered into on this 20th day of August A. D. 1908, by and between W. R. Nieolls of Beaver Dam, Wisconsin, party of the first part, and J. E. Standish, G-. A. Standish and E. L. Hoag, Jr., all of the City of South Milwaukee, Wisconsin, parties of the second part, witnesseth:
“That for and in consideration of the covenants and agreements of the said parties of the second part hereinafter set forth, the said party of the first part covenants and agrees to and with the said parties of the second part to sell to the said parties of the second part for the sum of Six Thousand Dollars ($6,000.00), one H. Channon, 14x22 ft. scraper bucket excavator, the same being the excavator now owned by the said party of the first part, together with all the equipments, and extras for repairs now belonging to said excavator. And also to furnish to the said parties of the second part the amount of 500,000 cubic yards of excavating to do, the work to consist principally or wholly of excavating small drainage ditches, and is all to be furnished within two years after the date hereof.
“The said party of the first part agrees to pay to the said parties of the second part, the sum of ten cents ($0.10) per cubic yard for excavating the 500,000 cubic yards, to be paid in cash, or in town warrants, drainage district warrants, or good notes, according as the said party of the first part gets his pay for the same work.
“And the said parties of the second part covenant and agree to and with the said party of the first part to pay to the said part of the first part the sum of Six Thousand Dollars ($6,000.00) for said excavator and equipments, to be paid as follows, to wit:
“On the signing of this indenture Two Thousand Two Hundred and Fifty Dollars ($2,250.00) is to be paid in cash, and five cents (5 cts.) per cubic yard, or one-half Q-) of the price of all excavating done by said parties of the second part shall be applied upon the remaining or unpaid portion of the price of said excavator until the sum of Six Thousand Dollars ($6,000.00) with interest at the rate of six per cent-per annum on all deferred payments has been fully satisfied and paid.
“The said parties of the second part further agree to accept all work of excavating that shall be offered by the said party of the first part and to give a good and acceptable bond for the true and faithful performance of each and every contract offered by the said party of the first part where bonds are required by the said party of the first part. Said parties of the second part further agree to take no work from other source until after they have completed the excavation of the said 500,000 cubic yards. Said parties of the second part further agree to employ Edward Eerstneau of the town of Calamus, Dodge Co., Wis., to run said excavator during the period of this agreement, and to pay the said Eerstneau not less than sixty-five dollars ($65.00) and expenses, per month of 26 ten-hour days, and to employ John Miller of the town of Calamus, Dodge Co., Wis., as fireman on said excavator during the term of this agreement, and to pay the said Miller not less than fifty dollars ($50.00) and board per month of 26 days.
“The said parties of the second part further agree to have the said excavator insured at once for a term of two years, in some good company for not less than Five Thousand Dollars ($5,000.00) the policy made payable to the said party of the first part in case of loss, so far as his interest shall appear. Said parties of the second part further agree to set up the excavator in a perfect condition and to the satisfaction of the said party of the first part, also to properly and perfectly care for said excavator keeping it in first class running order until it is fully paid for according to the provisions of this indenture.”

In pursuance to said contract the excavator was shipped from Beaver Dam, Wisconsin, to Mew Canton, Illinois, where appellant had secured a ditching contract, and appellees undertook to perform the same until October 5, 1908, when they suspended work and appellant took possession of said excavator and continued in the performance of the ditching contract. Thereafter, appellees brought their suit in assumpsit against appellant to recover the sum of $2,000 paid by them to appellant upon the purchase price of said excavator, together with the cost of preparing the same for shipment, the cost of shipment and the cost of installing the same in place for work.

The declaration contains the common counts and three special counts. The first special count alleges a mutual rescission of the contract. The second special count alleges that appellees were inexperienced in regard to the cost and manner of operation of excavators, and the construction of drainage ditches, and were without means or financial credit, all of which facts were known to appellant; that appellant had large experience in such matters and falsely represented that the excavator was worth $6,000 and could be dismantled, shipped, repaired and installed at a nominal expense, not exceeding $100; that said excavator was in good repair and could be successfully operated by any person without previous experience; that it could.be operated to construct small drainage ditches at a cost of five cents per cubic yard and that the contract price in excess of that amount would be profit and could be applied upon the purchase price; that he had a contract for the construction of such ditches involving many thousand cubic yards, which he would turn over to appellees at said price; that the ground to be excavated was clean and free from stumps and other obstructions; that ten cents per cubic yard for the character of the work to be done was the usual and customary price and he would give appellees the-benefit of any better price he could obtain therefor; that said statements were known by appellant to be false and were made by him for the purpose of deceiving appellees and inducing them to purchase said excavator; that said excavator was of a kind not in common use, was located a great distance from where appellees resided and was not readily accessible to inspection; that the value of said excavator and the cost of operating and maintaining the same were not matters of common knoweldge, and appellees had no knowledge thereof other than the representations made to them by appellant; that relying on such representations they paid appellant $2,000 in cash, and at an expense to them of $1,000 dismantled, shipped and installed said excavator and entered upon the work of excavating said drainage ditches; that appellant had contracted to do said work for fifteen cents per cubic yard and did not give appellees the benefit of said price, but fraudulently concealed from them the price he was to receive therefor; that by reason of all said false and fraudulent representations appellees elected to rescind said cpntract and at the request of appellant surrendered and returned the excavator to him and that he accepted and received the same and has thence hitherto exercised full and complete ownership over the same; that by reason of the foregoing promises appellant became and is liable to pay to appellees the sum of $3,000, etc.

The third special count contains substantially the same allegations and further alleges that appellant represented he would remain in control of the excavator and superintend the proper removal and operation of the same and that one Ferstneau and one Miller were experienced and capable men in that regard and would render appellees honest and capable services as engineer and fireman, respectively; that appellant did not perform his said promises but interfered with and prevented the proper and successful operation of said excavator; that said Ferstneau and Miller were not capable and experienced as represented by appellant and did not render appellees honest and capable service, but designedly and fraudulently connived with appellant to interfere with and prevent the proper and successful operation of said excavator; that by reason thereof appellees elected to rescind said contract and demanded the repayment to them of money so paid out and expended and did then and there surrender and return said excavator to appellant who accepted the same, etc. General and special demurrers interposed to said declaration were overruled and thereupon appellant pleaded the general issue. Upon a trial by jury there was a verdict and judgment against appellant for $2,608.26.

It is conceded by appellees that a recovery is not sought upon the contract, but upon a rescission thereof, and that to warrant a recovery they must establish either a rescission by mutual consent of the parties, or such a state of facts amounting to fraud on the part of appellant as justified appellees in electing to disaffirm or rescind said contract and return the excavator to appellant, who received the same as upon such rescission or disaffirmance. The instructions given to the jury at the instance of appellees were based upon this theory and no criticism of such instructions is made by appellant. On behalf of appellant it is insisted that there was no such rescission or disaffirmance of the contract, but that appellees abandoned the excavator and refused to further prosecute the work of excavation, and that appellant repossessed himself of said excavator under the terms of .the contract and not otherwise.

It is uncontroverted that the contract set forth in the declaration was freely and voluntarily executed by appellees after a full discussion between the parties of its several provisions, and in so far as it purports to embody the terms of the agreement, it must be held to be conclusive.

Some evidence, consisting of verbal statements alleged to have been made by appellant to appellees prior to and at the time the contract was signed, which evidence tended to contradict and vary the terms of the written contract in substantial particulars, was improperly admitted over the objection of appellant, but we do not regard the error in that regard of sufficient significance to affect the merits of the case. The same may be said as to the admission of evidence of the pecuniary circumstances of the appellees.

The statements shown to have beén made by appellant to appellees prior to the execution of the contract to the effect that the excavator was worth $6,000 and that the cost of dismantling, repairing and installing the same would be merely nominal, not to exceed $100, were simply expressions of opinion. Appellant’s estimate of the value of the excavator comes within the rule permitting the seller to eulogize the worth of his wares without incurring liability for dam'ages in an action for fraud and deceit or the like. The representations, however, shown to have been made by appellant to the effect that the excavator could be operated, in the work proposed to be done at New Canton, at a minimum expense of five cents per cubic yard, that the ground to be there excavated consisted of sandy loam, was free from stumps and other obstructions, and that the excavator operated in such soil was capable of excavating 800 cubic yards per day, stand upon a different footing under the evidence in the case. Appellant was familiar with the character of the work to be done. He had prepared detailed estimates therefor and had secured a contract to do the excavating for fifteen cents per cubic yard, being five cents in excess of the amount allowed appellees. He knew that appellees were strangers to the territory, that they had had no practical experience in operating an excavator, and that they relied upon him for a true statement of the situation. Under such circumstances it was incumbent upon appellant to speak the truth if he spoke at all.

There is evidence tending to show, and the jury were not unwarranted in finding, that after the excavator was installed at New Canton appellant on several occasions personally controlled and directed its operation, and that during such times various parts of the excavator were broken by reason of the unusual strain put upon them in an attempt to remove large stumps and other obstructions in the proposed ditch; that while the soil on the surface consisted of sandy loam, the greater part of the material to be excavated consisted of clay known as “blue gumbo,” the removal of which was attended with so much difficulty and delay that it was impracticable to excavate more than from 200 to 300 cubic yards per day; that appellant acting in conjunction with Ferstneau and Miller, whom he had procured appellees to employ, sought in bad faith to embarrass them in the prosecution of the work and compel them to abandon the same; that on October 3, 1908, appellant notified appellees that beginning October 5th, they would be required to perform the impossible task of excavating no less than 600 cubic yards of material per day for four days and 700 cubic yards per day for two days, or quit the job and relinquish all their rights under the contract.

On October 5th, appellees, realizing their inability to comply with appellant’s demands, and their inability because of appellant’s conduct and misrepresentations to prosecute the work without further substantial loss, elected to rescind the contract for the purchase and operation of the excavator and turned the excavator and its equipment over to appellant who accepted the same and proceeded with the work. In the face of the evidence tending to show that appellant actively engaged and participated in an effort to force appellees to abandon the work, we are not impressed with the claim advanced by appellant that his re-possession of the excavator is to be attributed solely to the contract and in strict compliance with its terms.

It is urged that the allegations of the declaration in respect to the fraudulent representations charged are not sufficiently definite to support a cause of action against appellant. The appellant did not abide his demurrer to the declaration, but waived it as to matter of form by pleading the general issue. The declaration is sufficient after verdict to support the judgment.

As disclosed by the competent evidence the case was properly determined upon its merits and the judgment will be affirmed.

Affirmed.


text:
    The Lincoln National Bank of Lincoln, Illinois, et al., Appellants, v. Walter J. Mundy et al., Appellees.
    1. Foreclosure—when right to, not affected by penalty clause. The right to declare the principal sum secured by a mortgage as due for default in payment of interest, is independent of any provision connected with the clause which gives the right to declare the principal sum due and providing for the imposition of a penalty because of the default, and even though the right to the .penalty may be denied in equity, the right to foreclose is undoubted and should not be denied.
    2. Foreclosure—rights of assignee in note. The assignee of a note secured by a mortgage or trust deed has all the rights and privileges conferred by the trust deed, including that of declaring the principal due for default in payment of interest.
    Foreclosure. Appeal from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed June 19, 1911.
    Hoblit & Smith and Beach & Trapp, for appellants.
    Blinn & Covey, for appellees.
   Mr. Justice Baume

delivered the opinion of the court.

On July 5, 1907, Walter J. Mundy executed and delivered to Margaret A. Mundy his five certain promissory notes, each for the sum of $5,000, payable at the First National Bank of Lincoln five years after date with interest payable annually at the rate of six per cent per annum from date, together with twenty-five interest coupon notes for the sum of $300 each, payable in one, two, three, four and five years at said bank, with interest after maturity at the rate of seven per cent per annum; and to secure the payment of said principal notes and said interest coupon notes he executed and delivered to said Margaret A. Mundy a mortgage upon 205 acres of land in Logan county, Illinois. The mortgage provided for the payment by the mortgagor of the monies thereby secured at maturity and the payment of an attorney’s fees of $250 in case suit was instituted to foreclose the same. There were further provisions in said mortgage, as follows:

“And it is covenanted and agreed, That if default shall be made in the payment of the said notes, or if there shall be a failure to comply with any and every condition of this mortgage, then the whole of the indebtedness secured hereby, including all payments, either for liens, taxes, . . . shall at the option of the second party become due and collectible at once, by foreclosure or otherwise and without notice of broken condition; and the principal sum secured by this indenture shall bear interest from the date of said notes, at the rate of seven per centum per annum, until paid. . as agreed, assessed and liquidated damages for such default, and this mortgage shall stand as security therefor, and may thereupon be foreclosed to pay the same; and it shall be lawful for the party of the second part at her option to enter into and upon the premises hereby granted, or any part thereof, and to receive all rents, issues and profits thereof.”

Said mortgage was subject to a prior mortgage on the same premises given to secure a note for $5,500 bearing interest at the rate of five per cent per annum.

After making said notes and mortgage the notes were endorsed in blank by the payee, Margaret A. Mundy, and three of said notes were acquired by the First National Bank of Lincoln, one by the Lincoln National Bank of Lincoln and one by Henry Ceymer. Thereafter Walter J. Mundy, the mortgagor and maker of said notes, removed to Medford, Oregon, and Margaret A. Mundy, the mortgagee, removed to Hannibal, Missouri. The annual interest due July 5, 1908, on said notes was paid on or about that date, but the annual interest due July 5, 1909, was not paid at maturity. On August 13, 1909, a telegram was received by the Tfincoln National Bank from the Medford National Bank of Oregon, sent at the instance of Walter J. Mundy, which telegram was as follows: “Have remitted you three hundred five dollars to pay note Walter J. Mundy. Mail note to him.” On the same day the Medford National Bank mailed to the Lincoln National Bank a draft for $305, which draft was received by the latter bank on August 18 and returned by it to the Med-ford National Bank with the statement that foreclosure proceedings had been instituted and that anything less than the full amount of indebtedness together with interest, fees and costs accrued to date of payment could not be accepted.

On August 14, 1909, a bill was filed by the Lincoln National Bank in the circuit court of Logan county to foreclose said mortgage, in which said bill said complainant alleged the failure of Walter J. Mundy to pay the interest when the same became due on the principal note for $5,000 held by complainant and that complainant had exercised its option as the holder of said principal note and the coupon interest note to declare the whole of said indebtedness, principal and interest, to be then due and payable, as in said mortgage provided. On October 2, 1909, the First National Bank of Lincoln filed its answer to said bill wherein it alleged, that since the commencement of the suit the said Walter J. Mundy had paid all of the interest due July 5, 1909, on the three principal notes for $5,000 each, then owned by it, and that there was then no interest due or payable on said notes; that upon the nonpayment on July 5, 1909, of the interest due on said notes, it exercised its option under said mortgage to declare the whole of the three principal notes owned by it to be due and payable. Said answer concludes with the prayer that said First National Bank of Lincoln “be hence discharged with its reasonable cost most unjustly sustained.”

On the same day Henry Ceymer filed his answer and cross-bill wherein he alleged the failure of Walter J. Mundy to pay the interest due July 5, 1909, on the note for $5,000 then owned by said Ceymer and that he had exercised his option, under the mortgage, to declare the whole amount of the principal of said note to be due and payable. Said cross-bill prayed for a foreclosure of the mortgage in the usual form.

On October 6, 1909, Walter J. Mundy and his certain co-defendants, who were alleged in the original and cross-bills to have some interest in the mortgaged premises, filed their answer wherein among other things they denied that the Lincoln National Bank had exercised its option to declare the whole amount of the debt, principal and interest, to be due and payable jprior to the filing by it on August 14, 1909, of its bill for foreclosure, and alleged a tender to said bank on August 13, 1909, of the sum of $305, being the amount due July 5, 1909, upon the coupon interest note together with interest thereon, the refusal of said bank to accept said tender and that said defendants had paid into court the amount of said tender for the use of said bank. The cause was referred to the master in chancery to take the proofs therein, and upon proofs so taken the cause was heard by the chancellor, and a decree entered dismissing the original and cross-bills for want of equity without prejudice to the complainants therein. Among other findings, not necessary to be here noticed,, the decree finds that the coupon interest note due July 5, 1909, was not paid when due and that the Lincoln National Bank on August 13, 1909, declared said indebtedness to be due, and on August 14, 1909, filed its bill to foreclose the mortgage declaring all of the principal and interest due by reason of the failure to pay said coupon interest note when the same became due; that after the filing of said bill the three coupon interest notes representing the interest on three of said $5,000 notes owned by the First National Bank of Lincoln were paid to and accepted by said bank; that the two coupon interest notes for $300 each owned by the Lincoln National Bank and Henry Ceymer had not been paid or the money therefor tendered to the First National Bank of Lincoln where it was provided in said notes that they should be payable; that there had been deposited with the clerk of the court the sum of $610.75 for the payment of the two coupon interest notes owned by the Lincoln National Bank and Henry Ceymer; that while the principal sum aggregating $25,000 drew interest at six per cent, per annum, as evidenced by the coupon interest notes, the mortgage which secured said notes provided that on the foreclosure thereof, upon the exercise by the mortgagee of her option, in the event of a failure to pay the interest when due to declare the whole indebtedness thereby secured to be due and payable, the principal sum secured thereby should bear interest from the date of said notes at the rate of seven per cent per annum until paid (less any proper credit for money paid) as agreed, assessed and liquidated damages for the default. The decree further finds that the legal effect of said clause in said mortgage was to provide a penalty in addition to the amount due upon said notes and interest thereon; that said penalty could not be enforced by a court of equity and that complainants in the original and cross-bills were not entitled in a court of equity by virtue of said clause in said mortgage to have said principal sum declared due and have said mortgage foreclosed by reason of the failure to pay said coupon interest notes; that while a court of equity will refuse to enforce said forfeiture and foreclose said mortgage it will deal equitably with all the 'parties to the suit; that the defendant Mundy should pay the amount of the interest coupon notes due to Ceymer and the Lincoln National Bank together with interest thereon at seven per cent from July 5, 1909, to March 8, 1910, and should also pay the costs of the suit; that since the decision of the cause said defendant had deposited with the clerk of the court a sum of money sufficient to pay said interest coupon notes with interest as aforesaid and all the costs of the suit, except complainant’s solicitor’s fees which were not allowed. From such decree the Lincoln National Bank and the First National Bank of Lincoln prosecute this appeal.

If the Lincoln National Bank, the complainant in the original bill, had availed itself of its option to declare the whole amount of the principal note for $5000 due and payable by reason of the failure of the maker of said note and of the interest coupon note for $300 due July 5, 1909, to pay said interest coupon note at maturity, and was entitled to file its bill to foreclose the mortgage given to secure said notes, there is nothing in the clause of the mortgage, which was held by the chancellor to provide a penalty which was unenforcible in a court of equity, to preclude said complainant from obtaining a decree of foreclosure for the amount of the principal note and the amount of the interest coupon note with interest on said latter note at the rate of seven per cent per annum. The bill did not specifically seek to enforce the payment of one per cent on the amount of the principal note from its date, which was held by the chancellor to constitute a penalty, and the provision of the mortgage in that respect might have been wholly disregarded and the right to collect such penalty disallowed without affecting the right of the complainant to a decree for the amount due by the terms of the notes.

In Curran v. Houston, 201 Ill. 442, it was said: “Parties may by contract make the time given for the payment of the principal debt, depend upon the prompt payment of the several instalments of interest when due, providing either in the note or mortgage securing the same, that a failure to make payment of any instalment of interest shall work as a forfeiture of the credit, and make the entire debt due at once. Such stipulation that the whole sum shall become due and payable upon default in the payment of the principal or interest is universally held to be legal and valid. It is not objectionable as being in the nature of a penalty or forfeiture, but will be sustained in equity as well as at law. Hoodless v. Reid, 112 Ill. 105; 1 Jones on Mortgages, 5th ed. 76; 1 Pomeroy’s Eq. Jur. sec. 439; Kramer v. Rebman, 9 Iowa, 114; Ottawa Northern Plank Road Co. v. Murray, 15 Ill. 337. It is not necessary as a general thing to give the mortgag-or or debtor personal notice of the intention to exercise the option to make the whole indebtedness become due on failure to pay the interest. The exercise of such an option is indicated by the filing of the bill to foreclose. The determination on the part of the holder of the notes to file a bill for the foreclosure of the trust deed for the entire indebtedness, and causing the same to be prepared and filed in pursuance of such determination is a sufficient election to- declare the whole sum due and to entitle him to maintain his bill. Brown v. McKay, 151 Ill. 315; Hoodless v. Reid, supra; Sweeney v. Kaufman, 168 Ill. 233.”

In Brown v. McKay, 151 Ill. 315, where the option .to declare the whole indebtedness due upon default in payment of interest was given to the legal holder or holders of the notes to be exercised in their discretion, and without notice to the mortgagor, it was held that, no formula was required to be. observed, nor any particular form of expression necessary to be used for the purpose of declaring the maturity of the whole indebtedness; 'that the formation of an intention in the mind of the person who has the option to exercise his election to declare the entire debt matured accompanied by any affirmative act or declaration evincing such determination will be sufficient.

It is urged on behalf of appellees that as the mortgage does not expressly provide that the option to declare the principal debt due and payable upon a failure to pay the interest coupon notes at maturity, may be exercised by the assigns of the mortgagee, the right to exercise such option is not available to appellants as the present holders of notes sécured by said mortgage. The indebtedness or the note evidencing such indebtedness is the principal thing and the mortgage securing such indebtedness is a mere' incident thereto (Carroll v. Tomlinson, 192 Ill. 398; Ogden v. Ogden, 180 Ill. 543), and the rights with reference to such indebtedness accruing to the mortgagee by virtue of the terms of the mortgage are available to the holder of the note secured by such mortgage. Dorn v. Colt, 180 Ill. 397; Cheltenham Imp. Co. v. Whitehead, 128 Ill. 279. The precise question here involved was determined contrary to the contention of appellees in Bartlett Estate Co. v. Fairhaven Land Co., 49 Wash. 58, 15 L.R.A.(N.S.) 590.

The decree specifically finds that the Lincoln National Bank on August 13, 1909, declared the indebtedness to be due and on the 14th day of said month filed its bill to foreclose the mortgage declaring all of the principal and interest due upon the note by failure to pay the coupon interest note when same became due. By the terms of the notes, both for principal and interest, they were payable at the First National Bank of Lincoln, and it requires no argument to show that payment, of interest to the Medford National Bank of Oregon on August 13, 1909, or the mailing by it on that day of a draft to the Lincoln National- Bank for the interest due July 5, 1909, did not operate to prevent the exercise by the Idncoln National Bank of its option to declare the principal note due and payable and its right to effectuate such option by filing its bill to foreclose the mortgage. The option having been exercised and effectuated before payment of the interest due, a payment subsequently made did not operate to set aside or annul the option theretofore exercised and effectuated.

The decree of the circuit court is reversed and the cause . remanded for-further proceedings not inconsistent with the views here expressed.

Reversed and remanded.


author: Mr. Justice Philbrick

text:
    The People of the State of Illinois, Appellee, v. John Savage, Appellant.

      Contempt—when evidence does not sustain judgment in. If defendants are restrained from selling liquor in a particular building, the absence of proof showing that sales of liquor were made in such building is fatal to a judgment holding such defendants in contempt.
    Bill in equity. Appeal from the City Court of Mattoon; the Hon. George D. Wilson, Judge, presiding. Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed May 26, 1911.

      Emery Andrews, for appellants; Craig & Kinzel, of counsel.
    Henry A. Neal, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court,

On September 11, 1908, the city of Mattoon filed a bill in equity alleging that appellant Savage, together with other parties, were illegally selling liquor in the city of Mattoon in anti-saloon territory, that their places of business were nuisances, etc.

In that action, a decree was entered by consent and the defendants were restrained by writ of injunction from selling or giving away intoxicating liquors at or within the buildings set forth in the decree. While that injunction was still in force and effect,, informations were filed against John Savage, Jesse Miller, Joseph W. Wallace, Charles W. Knight, William Knight, Jot Ashworth, and George Kiser, setting forth that they were violating the writ of injunction in selling and giving away intoxicating liquors at the places of business in which they had been restrained from so doing and that by reason thereof they were in contempt of court.

Upon these informations, attachments were issued; by the terms of the writ the defendants were directed to show cause why they should not be adjudged to be in contempt, but no rule or order of court was entered requiring them to show cause why they should not be adjudged to be in contempt.

The defendants were brought in under the attachment writs; no interrogatories were filed for them to answer, and no reply was made to the informations by defendants.

Prior to the judgments in the city court of Mattoon, from which these appeals are prosecuted, George Kiser, one of the defendants to the injunction proceeding, was adjudged to be in contempt of court for violation of the injunction and upon the judgment rendered in the proceeding an appeal was prosecuted to this court. Upon that appeal, opinion was filed October 25, 1909. (151 Ill. App. 6.)

The cause was reversed and after reinstatement of the cause upon the remanding order, the court proceeded to hear evidence; upon that hearing, the court found each of the defendants in contempt of court, fined each of them $100, and sentenced each of them to imprisonment in the county jail for thirty days. From that judgment each of the defendants prosecuted his appeal. For the purpose of argument and hearing in this court, these cases were consolidated.

As a cause for reversal, counsel for appellants insist that the city court of Mattoon had no jurisdiction of the subject-matter of the original bill for injunction, and that whatever decree was rendered therein was void and for that reason there can be no contempt in disobeying the injunction. It is also insisted that there is no evidence in the record upon which appellants can be found guilty of violating the injunction writ. It is further insisted that the judgments rendered by the city court of Mattoon are void in failing to direct to whom the fines should be paid, and in failing to direct in lohai county jail appellants should be imprisoned.

Upon the question of the jurisdiction of the city court of Mattoon to render the decree entered by it, we held upon the former appeal by Kiser that that court had jurisdiction and we now adhere to the conclusion reached by us at that time.

We also held at that time that the contempt was a civil and not a criminal contempt, and we see no reason for changing our views then expressed.

It is conceded by appellees that in order to punish for contempt for violating the injunction writ it is necessary that the record disclose and show that the sales of liquor alleged to have been made in violation of the injunction writs were made in the buildings in which defendants were restrained from selling or giving away, intoxicating liquors. This being the law, it follows that if the evidence does not disclose that the sales were so made, then there is no violation of the injunction shown. Upon a careful examination of the record we find this information specifically charges that after the granting of the injunction, the respective defendants did on the first day of May, 1909, and divers other days since the entering of said decree, sell, barter, and give away intoxicating liquors at and within the buildings so respectively described in the said decree, each information being applicable to the defendant named therein and building therein designated.

Ho rule was entered requiring the defendant to show cause why he should not be judged to be in contempt for violation of the injunction writ; no interrogatories were filed concerning violations of the injunction writ to be answered by defendants; the defendant was in no manner ruled to make answer to the information, and no default was ever entered or taken against the defendant for failure to make answer to said information.

On the hearing, various witnesses were examined, but from a careful examination of their testimony we find no proof of the location of the respective places of business of the defendants at the time tif the alleged wrongful sales charged in the information, and there is .no evidence that any intoxicating liquors were sold, or given to any one, at or within any of the respective buildings named in the injunction writ; to overcome the failure to prove these facts, appellee relies upon the familiar rule of law, that a condition once proven to exist is presumed to continue until the contrary is shown, and then argues that the decree in the injunction proceeding designated where the places of business of the various defendants were situated and specifically designates' them and that the law presumes the defendants respectively continued to. occupy the same places of business until the contrary is shown. If this contention can be maintained then it was unnecessary to aver that the defendants were selling or giving away intoxicating liquors at these specific places, or to specifically designate such places in the informations, as all that would have been necessary would have been to aver that defendants were selling or giving away intoxicating liquors, and under their contention the law would then presume that it was at the respective places of business described in the writ of injunction; yet .they concede that the informations must specifically set forth the places where the sales were made. If it was necessary that the informations contain this averment, then it was also necessary for the proof to have been made, as it is a familiar rule of law that whatever is necessary to be averred is also necessary to be proven unless admitted.

The decree that it is alleged defendant violated did not restrain him from selling or giving away intoxicating liquors in the city of Mattoon generally, but only at and within the building specifically described within that decree and to have continued to sell intoxicating liquors therein, would have been not only a violation of the injunction but 'also of the statute; the law does not presume that the defendant violates a law but rather that he obeys it. The evidence shows that the sales were made upon the premises occupied by the respective defendants at the time the various sales were made, but there is no evidence where those places of business were located, and the places of business are not specifically described and there is no proof that they are the same places described in the decree, and in a proceeding of this kind the court will not presume that the defendants had for more than a year continued to occupy the places of business described in the injunction writ. It is insisted in the argument that the chancellor who heard the evidence knew and was cognizant of all the conditions that existed; while this may be true as a matter of fact, yet when sitting as a court to judicially determine the guilt or innocence of a defendant, the chancellor cannot take judicial notice of the conditions existing, or apply his personal knowledge of existing facts.

It is insisted by appellee that the information in this case being verified, was sufficient to authorize rendition of judgment against the defendants without further proof; even if this contention could be maintained as a general proposition, upon the record in this case, no default was taken; no rule entered to show cause, no interrogatories filed, and no finding that the defendants had failed to answer or show cause and no finding that the facts stated in the informations are true, and such contention cannot be maintained, The record shows the cause was heard upon the evidence preserved in the hill of exceptions and upon this alone the judgment was rendered, and the evidence is insufficient to warrant a finding that the defendants violated the injunction or were in contempt of court, and for this reason the judgment cannot be sustained. It is unnecessary to consider the other questions raised on this record.

For the reasons above the judgment of the city court of Mattoon is reversed and the cause remanded.

Reversed and remanded.


text:
    The People, Appellee, v. George Kiser, Appellant. The People, Appellee, v. Jot Ashworth, Appellant. The People, Appellee, v. W. H. Knight, Appellant. The People, Appellee, v. Charles W. Knight, Appellant. The People, Appellee, v. James W. Wallace, Appellant. The People, Appellee, v. Jesse Miller, Appellant.
    These cases are controlled by the decision in People v. Savage, ante, p. 145.
    Appeals from the City Court of Mattoon; the Hon. George D. Wilson, Judge, presiding. Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed May 26, 1911.
    Emery Andrews, for appellants; Craig & Kinzel, of counsel.
    Henry A. Neal, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

The records in these cases are identical with and the questions involved the same as in the case of People v. John Savage, and the opinion filed on this date in that case is controlling of the questions involved herein. Ante, p. 145..

The judgments below are reversed and the causes remanded.

Reversed and remanded.


text:
    C. E. Walker et al., Appellees, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Evidence—what competent in action for frilling of animals. In an action against a railroad company to recover the value of mules killed upon its right of way, it is competent for the plaintiff to show not only whether or not a gate at a farm crossing was negligently left open by the defendant but whether or not if closed it was in sufficiently reasonable condition of repair to keep the mules off of the right of way, and it was likewise competent for the court to permit the plaintiff to show that the gate had remained open for a considerable length of time prior to the killing of the mules, notwithstanding the evidence of the defendant tended to show that the gate was closed on Saturday night preceding the Sunday night when the mules were killed.
    2. Instructions—when erroneous mil not reverse. The giving of an erroneous instruction will not reverse if no harm appears to have resulted.
    3. Instructions—estoppel to complain. A party cannot complain of instructions given which contain a vice common to instructions given at his own instance.
    4. Instructions—effect of refusing to disregard particular counts. Where a particular count is no longer in the case either because of its insufficiency or because of the lack of evidence to support it, it is the better practice to instruct the jury to disregard such count, but it is not error to refuse an instruction containing such a direction.
    Appeal from the Circuit Court of Shelby county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    George B. Gillespie, for appellants; L. J. Hackney, Gillespie & Fitzgerald and W. C. Kelly, of counsel.
    Richardson & Whitaker, for appellees.
   Mr. Justice Philbrick

delivered the opinion of the court,

Plaintiffs were engaged in the purchase and sale of horses and mules at Shelbyville, Illinois; on October 26, 1901, they had in a yard at Shelbyville, Illinois, some fourteen mules; during the night these mules escaped from the lot, proceeded along the public highway, and four of them entered a field of a farm adjoining the right of way of defendant, through a gate which had been left open. The declaration contains various counts which allege that the mules went upon the right of way through a gate at a farm crossing, leading from this field to the right of way of defendant, and that the company was negligent in leaving the gate open; that the gate was out of repair and rotted and was not sufficient to .keep the mules from entering the right of way; that during the night the mules were killed by a train upon defendant’s railroad. The trial below resulted in a verdict for plaintiff for $1,000.

The evidence discloses that the mules passed upon the right of way of defendant through this gate as alleged in plaintiff’s declaration. The evidence of the witness on .the part of plaintiffs is that the gate was continuously left open for a long time previous to the time of the death of these mules, that it had been observed to be open by numerous witnesses and that this farm crossing was used by persons living upon the opposite side of the road as a convenient route for reaching their homes; that the top and bottom boards of the gate were rotted, loose, and in such condition that they were not reasonably fit to keep stock from entering upon the right of way even if the gate was closed, that the surroundings and condition at the place where the gate was located showed that the grass had grown up over and around the bottom of the gate at the point where it had been permitted to remain open for a considerable time. While the evidence of the witnesses for defendant, section men in charge of the section along the line of the road where this gate was located, was that they had closed the gate on Saturday night previous -to the date of the accident which occurred on Sunday night, and that they had passed along the right of way on Sunday evening about 5 o’clock and that at that time the gate was still closed, that if it was afterwards opened and left open they had no knowledge of such condition. The evidence of the condition of the gate at the time and just before the mules were killed is very conflicting and its condition was a question of fact for the determination of the jury. Defendant insists that the evidence is not sufficient to' support the finding of the jury and that the judgment should be reversed for this reason. Defendant also insists that the amount of the judgment is excessive. This was also a question of fact for the jury to determine from the evidence, and unless the verdict is manifestly and clearly against the weight of the evidence it should not be disturbed by this court, and from an examination of this record we cannot say that the verdict is not justified by the evidence.

It is insisted by defendant that the court erred in admitting evidence of the condition of the gate for the reason that the plaintiff’s evidence tended to show that the mules passed upon the right of way through an open gate. Upon this contention, plaintiffs were entitled to show under the issue presented by the declaration and plea not only whether or not the gate was negligently left open but whether or not if closed it was in sufficiently reasonable condition of repair to keep the mules off from the right of ivay, and the court did not err in permitting this evidence to go to the jury; neither did the court err in permitting plaintiffs to show that the gate had remained open for a considerable length of time prior to the killing of the mules, notwithstanding the evidence of defendant tended to show that the gate was actually closed on Saturday night preceding the Sunday night when the mules were killed. This evidence was competent to go to the jury upon the question as to whether or not the gate was continuously left open and whether or not it was open on Saturday and Sunday as contended by plaintiffs.

Complaint is made of the instructions given on behalf of appellees and refused on behalf of appellant. Appellant criticises the first instruction given on behalf of appellees; while this instruction is not accurate and it in effect does not correctly state the duty of appellant in endeavoring to ascertain whether or not the gate was left open, nevertheless this instruction could not have harmed appellant for the reason that its witnesses testified that they did discover the gate was open and also that the gate was closed at 5 p. m. on Sunday before the mules were killed, and the error in this instruction was not prejudicial and does not require reversal of the judgment. Defendant strenuously insits that the court erred in giving to the jury instructions on behalf of appellees regarding the condition of the gate. Appellant’s given instruction Dumber 12 submitted to the jury the question as to whether or not the mules got upon the track by reason of a rotted, broken, or insufficient gate or by going through an open gate, and having submitted instructions upon this" question it cannot now complain of the giving of like instructions on behalf of appellees. The court did not err in refusing to give other instructions complained of by appellant for the reason that the propositions that were involved in these instructions were submitted in the given instructions. There was no error in the court refusing to give a peremptory instruction on motion of appellant.

Upon the contention that the court should have given instructions directly to the jury to disregard certain counts of the declaration, while it is better practice to give such instructions when proper, it is not reversible error to refuse instructions of this character.

There being no reversible error in this record, the judgment is affirmed.

Affirmed.