text:
    Joseph Rengel, Administrator, Appellant, v. Franziska K. Schoden, and Peter Schoden, Appellees.

      Gen. No. 17,116.
    1. EvidbNce — where possession is prima facie evidence of ownership. In replevin by an administrator against the daughter and son-in-law of deceased to recover possession of a note and trust deed in security thereof, in the absence of other evidence the proof of possession and claim of ownership make a prima facie case showing right of possession against the administrator.
    2. Evidence — presumptions. When possession and ownership are shown to exist, they are presumed to- continue, but are not presumed to have existed back of the time they were proved to have existed.
    3. Wills — note to broker not in conformity with Statute of Wills. An instrument signed by deceased directing a broker to transfer certain securities to his daughter and in case of his death to pay her the principal is not in conformity with the statute relating to wills and of no effect to pass title.
    4. Gluts — delivery. In order to establish a gift inter vivos it must be shown that there was a delivery of the property in the lifetime of the deceased with intent to vest title in the donee.
    5. Evidence — presumption of ownership. A prima facie case of ownership may be rebutted by the circumstances attending the possession.
    Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Heard in the Branch Appellate
    Court at the’ October term, 1910.
    Reversed and remanded.
    Opinion filed March 12, 1913.

      Colson & JOHNSON and L. J. Pieeson, for appellant.
    George F. Baeeett, for appellee; Michael E. Hunt, of counsel.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

Joseph Rengel, as administrator of the estate of John Joseph Rengel, deceased, began this suit of re-plevin against Franziska K. Schoden and Peter Scho-den on March 29, 1910, for the recovery of the possession of certain promissory notes and a trust deed. On the hearing the trial court, without a jury, entered judgment against the administrator and awarded the writ of retorno habendo for the return of the property replevined. The administrator has appealed.

The facts are that on October 25, 1906, John Joseph Rengel, appellant’s intestate, purchased from William F. Lubeke, a dealer in real estate securities, the principal note of Ira C. Saxe for $1,600, payable to order of himself, Saxe, five years after date and by him endorsed in blank, with coupons for the interest to become due on said principal note attached thereto, all secured by trust deed to said Lubeke, and all dated November 20, 1903. John Joseph Rengel paid for said notes to Mr. Lubeke $1,652.27, and the notes and trust deed were then delivered to him in the presence of Peter Schoden, his son-in-law, who went with Mr. Rengel to Lubeke’s office. When the principal note matured on November 20, 1908, Mr. Rengel again went in person with his said son-in-law to Lubeke’s and delivered the securities there for an extension for another five years, and after the extension of the principal note with additional coupons for interest attached and signed by Anna Klucznik, all the notes and the trust deed were again delivered to Mr. Rengel in person by the broker. The interest notes, as they matured, were collected by Mr. Lubeke, and all the coupons that matured in Rengel’s lifetime were paid to Mm in person by Lubeke, except tlie last two, which were carried to the broker’s by Peter Schoden, and the amounts due thereon were paid to Mm in cash. John Joseph Rengel resided with Ms daughter and son-in-law, Franziska K. and Peter Schoden, appellees, and was residing with them at the time of Ms death, December 18, 1909. He left surviving him eight children, including his daughter Franziska K. Schoden. Demand for the possession of said securities was made by the said admimstrator upon Franziska K. Schoden and Peter Schoden March 26, 1910, and she refused to give them up, saying, “My father had that mortgage and he gave it to me as a present, and I don’t propose to give it to you.” Some time in September, 1909, Peter Schoden delivered to the broker, Lubeke, the following instrument from Mr. Rengel:

“Gross PoiNT, Sept. 17th, 1909.
Mr. William F. Lubeke.
Dear Sir:
I wish to advise you to change the mortgage of Sax and Klucznik which amounts to 1,600 Dollars from my name to Franziska K. Schoden and in case of my dead the hole amount is to be paid out in full to said Franziska K. Schoden.
Yours truly,
J. J. RENGEL.”

It was admitted on the trial that the notes and trust deed were obtained from appellees by the sheriff by virtue of the writ, March 31, 1910, and that the sheriff delivered them to appellant, April 1, 1910.

The court refused to hold as a matter of law that possession by appellees of the notes and trust deed in question at the time of the demand and at the beginning of this smt is not prima facie evidence of their possession thereof, prior to and at the time of the death of John Joseph Rengel. The court also refused to hold as the law that the possession and collection by Peter Schoden of the last two coupon notes of said series, collected in the lifetime of John Joseph Rengel, is not prima facie evidence of the possession and ownership by appellees of the remainder of said notes and trnst deed at and prior to Mr. Rengel’s death. The action of the court in the above named particulars is assigned as error. The real questions for decision in this case are, was possession of the securities in question by appellees with claim of ownership by Mrs. Schoden on the day demand was made upon them by appellant and the possession thereof at the beginning of the suit by appellees, evidence tending to prove ownership by them or either of them, and if so, was it sufficient evidence to balance or outweigh the evidence of title and right of possession of the securities in question offered in this case, on behalf of appellant? “The mere possession of a negotiable instrument, produced in evidence by the indorsee, or by the assignee where no indorsement is necessary, imports prima facie that he acquired it bona fide for full value, in the usual course of business, before maturity and without notice of any circumstances impeaching its validity; and that he is the owner thereof, entitled to recoyer the full amount against all prior parties.” The presumption of bona fide ownership applies to holders of notes indorsed in blank. 1 Daniel on Negotiable Instruments, see. 813.

Possession of .a note by the personal representative of the deceased payee, payable to the decedent, and unendorsed, is evidence of ownership. Scoville v. Landon, 50 N. Y. 686.

Suing upon a promissory note and producing it at the trial by the heirs of a deceased payee, joined with the husbands of the daughters of the deceased payee, the note being unendorsed, was held to be prima facie evidence of the plaintiffs’ ownership of the note, as against the makers thereof. King, v. Gottschalk, 21 Iowa 512.

It was held by the Court of Appeals of Kentucky that, as against the administrator of a deceased payee of a note not endorsed by the payee, that the mere possession of the note by the claimant as an owner for value, as endorsee of the intestate payee’s niece, wonld not defeat the administrator’s title thereto when the pleadings and the proof showed that the note was executed and delivered to the administrator’s intestate, and that his original title and possession were unquestioned. That the party admitted to be the original owner is not required to show, in addition to the title and possession in himself, that he was unlawfully deprived of his possession by the act of the claimant or his assignee, but that the explanation as to how the claimant derived his title, and possession should come from him. Gano v. McCarthy’s Adm’r, 79 Ky. 409. The court in that case recognized the rule that the possession of personal property is prima facie evidence of ownership, but held that the claimant’s proof or prima facie case was overcome.

In the case of Martin v. Martin, 174 Ill. 371, it was held that the possession of unendorsed notes with claim of ownership is prima facie evidence of ownership in the holder, and that proof that the consideration for the notes was money loaned by the payee to the makers, that the notes were delivered to the payee in his lifetime and payable to himself or order, and not by him endorsed before his death, did not overcome such prima facie case. The evidence in that case, however, showed that the claimant came into possession of the notes there in question during the lifetime of the payee, and that the possession thereof was delivered to her by the payee, and that she continued in the possession thereof up to the time of the trial, at all times claiming to be the owner thereof and that they were given to her by the payee as her property. The evidence also established her claim that the payee did make a gift of the notes to her.

In the case in hand the evidence for appellees simply shows that they were in possession of the notes and trust deed on the day of the appellant’s demand upon them for the securities and at the beginning of the suit, and that Mrs. Schoden claimed to he the owner thereof by gift from the administrator’s intestate. Their possession of the securities at and before Eengel’s death and for several months thereafter was not proved. The possession and ownership of the securities by Rengel prior to and within about ninety days of his death was well proved, and that he died at the residence of appellees. Whatever of valuables Rengel possessed or owned at his death, such as notes and mortgages, he would be expected to have with him at his place of abode, and particularly these securities, if he owned them, as he had carried them away with him when he purchased them and when he had them renewed. As the coupons matured, they were either taken to the broker and cashed by Mr. Rengel or by Peter Schoden who first accompanied him to the broker’s. About ninety days prior to Mr. Rengel’s death, and after the collection of one of the two coupons collected by Peter Schoden, he, Schoden, carried to the broker the said written instrument signed by Mr. Rengel, stating, in substance, that he intended for his daughter, Franziska K. Schoden, to have the notes after his death. These facts tend to prove that in the collection of interest Schoden acted as agent, of Rengel .and that Rengel on the date he signed that instrument, and at the time of its delivery to the broker, possessed and owned the notes, and that he still owned them at his death. The presumption of law is that they continued in his possession and his property up until his death, in the absence of proof showing to the contrary. After his death the manual possession of the securities would necessarily fall to some other person, and under the evidence thus far the natural conclusion would be that they fell into the possession of appellees at and after Mr. Rengel’s death, and that Mrs. Schoden would probably claim to own them by reason of the said instrument signed by Mr. Eengel, expressing his desire that she have them after his death. Thus far the evidence shows complete title to the securities in appellant, with the bare possession of the same in appellees, and which possession they obtained, not from the deceased in his lifetime, but after death, and simply because he died at their residence leaving the securities at his and their habitation. Appellees’ only title so far proved is by virtue of the signed instrument by Mr. Eengel, testamentary in character, and of no effect to pass title to appellees, because not in conformity with the statute relating to wills. Comer v. Comer, 120 Ill. 420. The evidence thus far also fails to establish a gift inter vivos, because none was perfected by delivery of the securities in the lifetime of Mr. Eengel with the intent to vest the title in appellees or either of them. Telford v. Patton, 144 Ill. 611; Fanning v. Russell, 94 Ill. 386; Chambers v. McCreery, 45 C. C. A. 322.

"What further evidence is there in the record of the right of appellees to the possession of the securities? Appellees introduced no evidence whatever, except the admissions above recited that the sheriff, when he served the writ, found them in the possession of ap-pellees and delivered them to appellant, and which is verified by the sheriff’s return. Appellant furnished the only other evidence of their claim when he introduced the written instrument signed by Mr. Eengel and delivered to the broker by Peter Sehoden, and in proving demand for the securities and the reply of Mrs. Sehoden to appellant’s demand. This proof was introduced to prove demand and a refusal by appel-lees to deliver the property to appellant. Her answer to the demand, however, serves to prove possession of the securities at that time in her under claim of ownership as a gift from her father, as the proof was made without limiting the evidence to the proof merely of her refusal to deliver the property on demand. This evidence should not, however, he held to prove more, that is to say, to prove more than her possession under claim of ownership by gift. In the absence of other evidence the proof of her possession and claim of ownership would undoubtedly, under all the authorities, make a prima, 'facie case showing her right of possession to the securities against the administrator, as they were endorsed in blank by the maker, Saxe, and title thereto could pass by delivery without endorsement. We hold, however, that this evidence establishing her right to recover was overcome by the other evidence in the record, and that the evidence proved that the basis of her claim or title is by virtue of the said instrument signed by her father and delivered by her husband to the broker, and that it was without legal force to vest any right to the property in her, as heretofore said.

Presumptions are generally prospective, and not retrospective, that is, they usually run forward and not backward. When possession and ownership are shown to exist, they are presumed to continue, but are not presumed to have existed back of the time they were proven to have existed. Cantwell Eagle Brewing Co. v. Horst, 61 Ill. App. 330; Erskine v. Davis, 25 Ill. 251.

There can be no presumption under the proof in this case that Mrs. Schoden was in possession of the securities under claim of ownership in the life of her father from the mere fact that she was in possession thereof under claim of ownership three months and more after his death. Her mere claim that he gave them to her does not amount to proof that he did give them to her. If there was such a presumption in law, we would still be forced under the evidence to hold that it was overcome by evidence tending to show that her father was in possession as owner up to his death. Any prima facie case of ownership may be rebutted by the circumstances attending the possession. Bergen v. Riggs, 34 Ill. 170; Bellis v. Lyons, 97 Mich. 398; Campbell v. Sech, 155 Mich. 634.

Her claim being that she was owner by gift from her father excludes all consideration or speculation that she may have obtained a right of possession otherwise. Our conclusion, therefore, is that the finding and judgment of the court is against the manifest weight of the evidence, and the judgment is reversed and the cause remanded.

Reversed cmd remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Duncan

license: Public Domain

text:
    People of the State of Illinois, Defendant in Error, v. Harold McDonald, Plaintiff in Error.
    Gen. No. 18,719.
    1. Indictments and infoemations — variance. Where an Information charging defendant with unlawfully abandoning his wife describes the wife by her middle name, there is no variance, though the full name is proved.
    2. Indictments and informations — description of parties. The party against whom an offense is committed may be described in an indictment by his initials, by his middle name or first name, or by a nickname, and if the proof establishes with certainty that the name alleged is the one by which he is usually known, there is no variance.
    3. Criminal law — jury waiver. Where a written waiver of jury trial has the venue and number of the case correct, it is not a reversible error that in the title “City of Chicago” is used instead of the “The People,” where the mistake is a clerical error of defendant’s counsel.
    4. Criminal law — waiver of jury. In a prosecution for a misdemeanor that may he prosecuted otherwise than by indictment and for which the punishment cannot extend to imprisonment in the penitentiary, the defendant may waive the right to trial by jury.
    5. Criminal law — minor; may waive jury. In a prosecution upon an information charging defendant with unlawfully abandoning his wife, the defendant, though a minor, may waive his right to trial by jury.

      6. Husbakd and wife — abandonment. Tlie fact tliat a wife was a prostitute before marriage is no defense to a prosecution of lier husband for abandonment.
    7. Husband and wife — abandonment. A fine of five hundred dollars and costs is not excessive on a prosecution for wife abandonment.
    Error to the Municipal Court of Chipago; the Hon. Wiiaiam N. Gekmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 12, 1913.
    Adams, Bobb & Adams, for plaintiff in error.
    Maclay HoyNe, for defendant in error; Zach Hof-heimer, of counsel.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

Plaintiff in error was prosecuted upon an information filed in the Municipal Court, charging, in substance, that he wrongfully and unlawfully and without good cause abandoned his wife, Marie McDonald, in destitute and necessitous circumstances, and neglected and refused to maintain and provide for his said wife, contrary to the statute. On a trial before the court without a jury plaintiff in error was found guilty, and the judgment and sentence of the court was that he should pay a fine of $500.00 and costs of suit taxéd at $8.50, and that, in case of default therein, he should stand committed to the house of correction until said fine and costs should be worked out at a dollar and a half per day, or until he should be discharged by law.

Plaintiff in error first urges as a ground for reversal of the judgment a variance, that the averment in the information is that he abandoned his wife, Marie McDonald, while the proof was that his wife’s name was Evelyn Marie McDonald. We do not consider the alleged variance fatal to the judgment. The object in requiring accuracy and harmony in the alie-gations and the proofs as to the names of third parties in criminal prosecutions is to insure the establishment of their identity and to guard against unjust convictions and punishments of parties charged with crime. The strictness of the common law was in times past a necessity to protect the innocent or the unfortunate who happened to be charged with crime, but we have passed the day when the life of a human being may be legally taken for the stealing of a shilling or for an impossible murder by means of witchcraft. Less strictness was always required in pleadings in giving the names of third parties to the proceedings than in the giving of the names of the parties thereto, and less strictness is required in either ease by the later decisions of our courts, as compared with their earlier decisions. The identity of a person may as well be established in some cases by his middle name as by his first' name, and he may also in many instances be completely identified by his occupation or by some other designation. How much more certain and definite to a defendant charged with crime can the identity of the party against whom it is alleged he has committed a crime be made than by alleging and proving that that party is his wife? There was but one person in the world to whom that designation or description could apply in this case. No one knew this better than the plaintiff in error. He admitted that Evelyn Marie McDonald was his wife, and there is no pretense that there is another person in the world claiming or pretending to be his wife. What difference could it make to him whether she be described in the information as Evelyn McDonald, Marie McDonald, or Evelyn Marie McDonald, when the further specific averment is made that she is his wife ? There was no variance. The party against whom an offense has been committed may be described in an indictment by his initials, by his middle name or first name, or by a, nick name, and if the proof establishes with, certainty that the name alleged is the one by which he is usually known, there will he no variance. We here give a list of cases illustrating the foregoing rule, to which are added still other cases distinguished or apparently in conflict therewith. Commonwealth v. Warren, 167 Mass. 53; Shepherd v. People, 72 Ill. 480; Vandermark v. People, 47-Ill. 122; Langdon v. People, 133 Ill. 382; Tucker v. People, 122 Ill. 583; Little v. People, 157 Ill. 153; Hix v. People, 157 Ill. 382; Bonardo v. People, 182 Ill. 411; Penrod v. People, 89 Ill. 150; Davis v. People, 19 Ill. 74; Willis v. People, 2 Ill. (1 Scam.) 399; Harrington v. People, 90 Ill. App. 456.

It is next urged that the court erred in trying the cause without a jury, (1) because there was no written waiver of his right to a jury trial filed in the cause, and (2) because he is a minor, of the age of' nineteen years, and, therefore, incapable of waiving the right of trial by jury. There is a written waiver in due form signed by him that appears in the record. The record also contains this recital in regard thereto, “The said defendant being duly advised by the court as to his right of trial by jury in this cause, elects to waive a trial by jury, and now here executes a formal waiver in writing of a trial by jury, which waiver of jury trial is filed in this cause, and this cause is by agreement in open court, between the parties hereto, submitted to the court for a trial without a jury.” This record imports verity and is not contradicted by other parts thereof in the above recital. The only objection urged to the written waiver found in the record is that it was entitled as “City of Chicago v. Harold McDonald,” and not as “The People v. Harold McDonald.’’ The written waiver shows that it was written on a printed blank used by the city in city prosecutions, and a simple neglect by plaintiff in error’s counsel to erase the printed words, “City of Chicago” in the title and insert in lieu thereof, “The People.” The following changes were made on this blank in the printing thereon, by erasures and in-terlineations, to-wit: “City Case,” changed so as to read, “State Case,” and the word “Quasi-Criminal,” indicating the character of the suit, changed to “Criminal.” The waiver then has the correct venue laid therein and gives the correct number of the case, and gives the nature of the charge as, “For Aband. of W’f.” The waiver would be good without a title of the case attached to it at all, as it otherwise shows what it is and for what case intended. It also clearly appears to be a clerical error of Ms own counsel, or of himself, that it did not have the correct title in every particular, and he cannot take advantage of Ms own error now. It does not affirmatively appear that the court’s attention was ever actually called either to this defect in the written waiver or to the alleged variance in the proofs.

It .has often been held that a jury may be waived by a defendant in a prosecution for a misdemeanor that may be prosecuted otherwise than by indictment, and for which the punishment cannot extend to imprisonment in the penitentiary, and it is now the settled law of this state. Brewster v. People, 183 Ill. 143; Paulsen v. People, 195 Ill. 507; Darst v. People, 51 Ill. 286; Zarresseller v. People, 17 Ill. 101; Hamel v. People, 97 Ill. App. 527; Austin v. People, 63 Ill. App. 298. Neither the statute permitting the defendant to waive the right of trial by jury, nor any decision in our state, so far as we know, makes any exception in the case of minors. It is a privilege granted by statute to any defendant by his complying with its requirements. We are unable to see why a minor should not be able to avail himself of the privilege, and in case he should see fit to do so, be bound thereby where, as in this case, the record discloses that he has in no way been prejudiced thereby. The procedure in eriminai cases is the same whether the accused is an adult or a minor, and in a criminal case a minor defendant may waive the requirements that he be furnished with a copy of the indictment, a list of the jurors and witnesses, and that the court’s instructions be in writing. Cutter v. People, 184 Ill. 395; Bartley v. People, 156 Ill. 234.

It is finally insisted that the evidence does not support the judgment. It clearly and satisfactorily appears from the evidence that plaintiff in error and his wife were married May 14, 1912, and that on May 27, 1912, he left her and afterwards sent for his clothes at the flat, where they lived and that he never did return to her. She remained at their apartment until June 10, 1912, and had to give it up because she could not pay the rent. He never gave her a cent for her support after he had abandoned her, although she had no property of her own and his income from his father’s estate was one hundred dollars per month, and he was in physical condition to earn wages himself. His excuse for leaving his wife is that she. swore at him and waived a “revolver around,” and that they had a fight the morning he left. He gives no details of the fight at all, and makes no showing that he was in any danger of being shot by her. There are some insinuations in the record that his wife lived at a house of prostitution and received male callers prior to his marriage, but there is no proof that she was a prostitute before she married or since, and she testified there was no truth in -the insinuations, and that she never struck him or threatened him with a revolver. The court saw.and heard the witnesses, and had thereby the best opportunity of judging the weight to be given to their testimony. The evidence supports the judgment and we are entirely satisfied with the court’s finding. The fine is not excessive, and plaintiff in error’s ability to pay it is amply shown. Let it be. conceded that she was a prostitute before he married her. If she was good enough for him then, she is now. He makes no showing that he was deceived in her and does not attempt to do so; and there is no excuse in law for a man’s abandonment of Ms wife simply because be is tired of ber, and is disposed to and can say of ber that she is not the most desirable sort of a wife anyway. The interests of society demand a vigorous enforcement of this statute.

The judgment of the lower court is right, and it is affirmed.

Judgment affirmed.


author: Mr. Justice Baume

text:
    Louis Olson and James W. Miller, Appellees, v. Ingvar P. Ostby, Appellant.
    Gen. No. 16,997.
    1. Corporation's — action on covenant for benefit of, must be brought by corporation. Where defendant bas sold his stock in a corporation to other stockholders and covenanted not to engage in the business of furnishing ice for water coolers in a certain district whe're the corporation is operating such business, the corporation alone has a substantial beneficial interest in the enforcement of the covenant, and it alone has the right to prosecute an action to enjoin its violation.
    2. Contracts — for benefit of third, party — action by. Where a person for a valuable consideration makes a promise to another for the benefit of a third person, such third person may maintain an action on such promise, even where there is no consideration moving from him.
    3. Covenants — not to interfere with “known business” — meaning of. Where a party covenants that he will not enter in the ice business in the cooler trade so as to interfere in any manner with the “known business” of a company, the then “known business” means the occupation of supplying ice for water coolers and is not limited to the customers of the company.
    4. Parties — to contract after functions terminated — mot necessary to suit. Where the functions of a party to a contract have wholly terminated and he has no rights to be affected, he is not a necessary party to a suit on the contract.
    5. Contracts — coercion. The fact that a person is led to accept $250 less than his original offer to sell an interest in his business for $3,500 does not tend to establish coercion.

      6. Pasties — interest. On a bill to enforce an agreement not to engage in competing business, incidental to a sale of corporate stock, a trustee who acted as intermediary or bis personal representative is not a necessary party complainant when bis duties have been completely executed.
    Appeal from tbe Superior Court of Cook county; tbe Hon. George A. Dupuy, Judge, presiding. Heard in tbe Branch Appellate Court at tbe October term, 1910.
    Reversed and remanded.
    Opinion filed March 13, 1913.
    Musgrave & Lee, for appellant.
    FlaNNBry & McKiNley, for appellees.
   Mr. Justice Baume

delivered tbe opinion of tbe court.

Prior to April 11, 1905, Louis Olson, James W. Miller and Ingvar P. Ostby, as copartners, were engaged in tbe sale of ice for water coolers in tbe down town district of Chicago, and on that day they organized a corporation, known as tbe Chicago Artificial Ice Company, for the prosecution of tbe same business. Tbe capital stock of tbe corporation was $12,000 and to each of said persons, as stockholders, there was issued 40 shares of stock of tbe par value of $100 per share. Each of said stockholders took an active part in the conduct of tbe business, Miller having charge of tbe office, Olson having charge of tbe drivers, horses, wagons and stables, and Ostby soliciting tbe customers and making tbe collections. Each of tbe parties received a salary of $1,200 per annum and tbe net profits of tbe business were divided among tbe three stockholders as dividends. During tbe year following tbe incorporation of tbe company serious dissension arose among said stockholders regarding, tbe arrangement for their personal services in tbe business of tbe company, and a sale by each of tbe stockholders of bis shares of stock to tbe other stockholders was discussed. In April, 1906, an agreement was arrived at for the sale by Olson of his shares of stock to Miller for $3,500, but such sale was not consummated. In July, following, Ostby offered to sell his shares of stock to Miller and Olson for the like sum of $3,500 and the negotiations following such offer resulted in an agreement by Ostby to sell his shares of stock to Olson and Miller for $3,250. At the suggestion, as the evidence tends to show, of Ostby, and with the concurrence of Miller and Olson, Albert J. Elvig, a practicing lawyer, was retained to draft the necessary instruments to effectuate the transaction. By the agreement, as executed, Elvig became the ostensible purchaser of the shares of stock owned by Ostby, but it was well known and understood that Miller and Olson were the actual purchasers of said shares. The several instruments then executed, and which embody the transaction between the parties, are as follows:

“KNOW ALL MEN BY THESE PRESENTS: This is to certify that I, Ingvar P. Ostby, of the City of Chicago, in the County of Cook, and State of Illinois, have this day sold and transferred to Albert J. Elvig of said County and State aforesaid, Forty Shares of the Capital Stock held by me, of the Chicago Artificial Ice Company, a corporation of Illinois, for the sum .of Thirty-two Hundred and Fifty ($3,250.00) Dollars, to be paid to me by said Albert J. Elvig, as follows:
“Seven Hundred and Fifty ($750.00) Dollars cash, in hand, the receipt of which is hereby acknowledged, and One Thousand ($1,000.00) Dollars on the Fifteenth day of August, 1906; Five Hundred ($500.00) Dollars on the Fifteenth day of December, 1906, and Five Hundred ($500.00) Dollars on the Fifteenth day of January, 1907, which payment when completed shall be in full of all demands of kind and character both as to the purchase price of said shares of stock as mentioned aforesaid, and also to include all my interest in and to any division of profits or property right, etc., in said corporation.
“But if said Albert J. Elvig shall fail or refuse to comply with the aforesaid conditions of payments above stated when any of the above payments shall become due, then the said Forty (40) Shares of Stock mentioned aforesaid shall be reconveyed to me and the money paid shall be forfeited to me as liquidated damages for the non-performance of the above conditions of payment as aforesaid.
“And I hereby further agree that for and in consideration of the purchase of said Forty (40) Shares of Stock and the payment therefor as above stated, I will not enter into the Ice Business for the period of Ten years in what is known as the cooler trade, either wholesale or retail, so as to interfere in any manner wdth the known business of the Chicago Artificial Ice Company, a corporation, in the down town district of the City of Chicago bounded by Halsted Street on the West, Chicago Avenue on the North, and Twenty-Second Street on the South, under a penalty of the laws of this State in such case made and provided.
“And I further agree that in the event of the above mentioned payments not being made at the time and in the manner specified, and a reconveyance of said Forty (40) Shares of Stock is made by said Albert J. Elvig to me, then I will cancel the balance of said payments then unpaid, and will return the note or notes held by me for the payment thereof to said Albert J. Elvig.
“IN WITNESS WHEREOF, I have hereunto set my hand and seal this 28th day of July, 1906.
(Signed) INGvae P. Ostby, (SEAL)
“Signed, Sealed and Delivered in presence of
“(Signed) E. HalvoesoN.”
“I, the undersigned, Albert J. Elvig, have this day purchased from Ingvar P. Ostby, Forty (40) Shares of Capital Stock of The Chicago Artificial Ice Company, a corporation, and have read the conditions of Sale made by said Ingvar P. Ostby, and I hereby agree to conform to the same and make this my agreement a part of said conditional agreement of said Ingvar P. Ostby.
* ‘ (Signed) Albeet J. Elvig. ’ ’
“For Value Beceived, I, Ingvar P. Ostby, do hereby sell, assign and transfer unto Albert J. Elvig, Forty (40) Shares of the capital stock of The Chicago Artificial Ice Company, a corporation, and do hereby irrevocably constitute and appoint James W. Miller, the Secretary of said Company, my attorney, to transfer the said Stock on the books of the within named corporation with full power of substitution in the premises.
“Dated, Chicago, July 28, 1906.
(Signed) INGvar P. Ostby.
“Signed in the presence of “ (Signed) E. Halvorsoh.”
“I, the undersigned, Albert J. Elvig, to whom there was transferred by Ingvar P. Ostby, Forty (40) Shares of the Capital Stock on the 28th day of July, 1906, do hereby declare that said shares were transferred by said Ostby to him in trust for L. Olson and J. W. Miller, during the fulfillment of the agreement entered into at the time of the Sale of said Stock, which agreement is for the payment thereof in installments, the last payment becoming due on the 15th day of January, 1907. Now, if said agreement is fully carried out by said Olson and J. W. Miller, and the payments made as in said agreement mentioned, then on the payment of the last installment, I hereby agree to transfer said Shares of Stock as aforesaid as said Olson and Miller shall jointly direct, I claiming no ownership therein whatever, but if the payments on any of them is not made, as agreed to, then said shares of Stock shall be transferred back to said Ostby in fulfillment of the terms of the Agreement of Sale.
“ (Signed) _ Albert J. Elvig.”

_ Notes were executed by Elvig, Olson and Miller, payable to Ostby for the deferred payments in the contract of sale, and upon the payment of said notes at maturity by Olson and Miller, the said 40 shares of stock were transferred, as follows: fifteen shares each to Miller and Olson and five shares each to Mrs. Miller and Mrs. Olson.

In January, 1907, following the execution of said instrument and the completed transfer of his shares of stock in said company, Ostby went into the business of selling ice for water coolers in tbe down town district of Chicago, and solicited and was successful in inducing numerous individuals, firms and corporations, who then and prior thereto were customers of the Chicago Artificial Ice Co., to purchase ice for said purpose from him, and also solicited and secured the like custom of others who had not theretofore purchased ice from said company.

On June 13, 1907, Olson and Miller filed their bill of complaint against Ostby in the Superior Court, wherein, after setting forth the matters above stated and further alleging that the said acts and doings and threatened acts and doings on the part of Ostby irreparably injured the Chicago Artificial Ice Company and the complainants in their business and property, the complainants prayed that the defendant be restrained from entering into or continuing: “in the ice business for the period of ten years from July 28,1906, in what is known as the cooler trade, either wholesale or retail, so as to interfere in any manner with the known business of the Chicago Artificial Ice Company in the ‘down-town district’ of the City of Chicago, bounded by Halsted street on the west, Chicago Avenue on the north and Twenty-second street on the south, and for- such other and further relief in the premises as equity may require and to your Honors shall seem meet. ’ ’

The answer filed by defendant admits his copartnership with complainants and the subsequent incorporation of the company as alleged; alleges an attempt by Miller with the co-operation of defendant to secure the interest of Olson in the company at a very low figure, the refusal of defendant to enter into such scheme, and the consequent rage of Miller and his endeavor to stir up strife between Olson and the defendant; alleges that the remunerative business of the company was built up by his own labor and exertion; that complainant^ became jealous of his influence in the management of the business and conspired together to force him ont of the corporation; that complainants and Elvig represented to him that since complainants had a majority of the shares of stock they conld and would nse all the earnings of the company in paying salaries to themselves, and that as a result his shares of stock would become of little or no value; that defendant in his ignorance was fraudulently coerced to sell his 40 shares of stock in the company at a grossly inadequate price to Elvig; that defendant had no knowledge of the declaration of trust by Elvig in favor of the complainants and the same was' no part of the contract of sale; that defendant is acquainted with the cooler trade in the downtown district and it is the only business in which he can earn a livelihood; that relying upon the representations of Elvig that the covenant by defendant in the contract not to engage in said business in said district was not intended to be enforced and could not be enforced, defendant in January, 1907, again entered into said business in said district and so conducted the same as not to interfere with the known business of the Chicago Artificial Ice Company; that the Contract alleged in the bill, if the same is binding, was made for the benefit of the Chicago Artificial Ice Company and said company is a necessary and proper party complainant; that the right of action to enforce said contract, if any, belongs to Elvig and can be enforced by him alone. Upon replications being filed to said answer the cause was referred to a master to take and report the proofs, together with his conclusions thereon.

Upon the issues of fact involved the findings of the master were wholly favorable to the complainants. The,master further reported as his conclusions of law, first, that the contract in question, though in terms with Elvig, was for the benefit of complainants, and that complainants were entitled to maintain the action; second, that the covenant of defendant not to enter into the business for the period and within the district specified in tlie contract was a valid and enforceable covenant; third, that by said covenant defendant was not restrained from entering into said business with others than the customers of the Chicago Artificial Ice Company, but was restrained thereby from carrying on such business so as to interfere with the known business of said company; fourth, that defendant had violated said covenant, “and should be enjoined for the period of ten years from and after the 28th day of July, 1906, from in any way soliciting customers of the Chicago Artificial Ice Company to purchase from him ice for their water coolers, and from selling ice to customers of said company, and from in any other way so carrying on his said business as to interfere with the known business of the said Chicago Artificial. Ice Company.”

The objections filed to said report, both by complainants and -defendant, were overruled by the master and upon the hearing by the chancellor such objections seem to have been treated as exceptions. The chancellor overruled all the exceptions and approved the master’s report in so far as it related to the finding of facts, and decreed that the defendant be “restrained and enjoined from in any way, directly or indirectly, entering into or continuing in the business of furnishing ice for water coolers, either wholesale or retail, in that part of the City of Chicago, in the County of Cook and State of Illinois, which is bounded by Hai-sted street on the west, Chicago avenue on the north and Twenty-second street on the south, from the date of this decree' until the twenty-eighth day of July, A. D. 1916; and from in any way, directly or indirectly, soliciting the customers of the Chicago Artificial Ice Company to purchase ice for water coolers in said district during said period; and from selling or otherwise furnishing ice for water coolers to customers of the Chicago Artificial Ice Company in said district during said period; and from in any way, directly or indirectly, entering into or carrying on the ice business, so as to interfere with, the water cooler ice business of the Chicago Artificial Ice Company in said district during’ said period.”

To reverse such decree the defendant prosecutes this appeal.

First. It is insisted that the weight of the evidence shows that the covenant in controversy was obtained by coercion and is unconscionable, unfair and oppressive.

Accepting appellant’s own version of the negotiations which culminated in the execution of the contract by him, his claim that he was fraudulently coerced by appellees to enter into the contract is wholly without foundation. He says, “I never ashed for more than $3,500 for my interest in the business. If I had to sell out, I wanted at least the same amount of money that Olson was to get, and they wouldn’t give it. He was to get $3,500 for selling it out to me and Miller.” Appellant voluntarily fixed the price of his interest in the business at $3,500. The mere fact that he was finally persuaded by appellees to accept $3,250 is not suggestive of fraudulent coercion. Upon the issues of fact wherein the testimony of appellant is contradicted by the testimony of the appellees, the findings of the master, approved by the chancellor, must upon this record be held to be conclusive. In arriving at this conclusion we are influenced not alone by the weight which is properly to be accorded to the findings of the chancellor upon questions of fact, but by a consideration of the evidence as it appears in the record.

It is practically conceded by appellant that the terms of the contract are such as may be enforced in law, and we are unable to perceive wherein upon the facts disclosed a court of equity would be justified in holding that the contract was unconscionable, unfair and oppressive.

Second. It is contended that the right of action, if any exists, for a breach by appellant of the contract in question, is in the Chicago Artificial Ice Company and not in appellees; that a stockholder, as such, is not entitled to relief against acts injurious to his corporation, unless the corporate officers have wrongfully refused to take action, or unless the acts complained of are in violation of a contract right of the stockholder.

There is no pretense that the corporation has refused to take action, but appellees insist that, as the corporation was not in fact a party to the contract, it' cannot maintain an action to enjoin a breach by appellant of its terms. As we view the matter the corporation is the only party having a substantial beneficial interest in the enforcement of the covenant here involved. The interest of appellees in the enforcement of said covenant is merely that of shareholders of the capital stock of the corporation, and is incidental and casual. Their interest is not entire, but severa-ble, as evidenced by the fact that at the time the bill was filed, there were two other persons owning shares in the capital stock of the corporation, who were not made parties complainant. If appellees had been unsuccessful in this action and a decree had been entered dismissing the bill for want of equity, would such decree have operated to bar a similar action by the corporation? We apprehend not.

If appellant after payment therefor had refused to transfer the shares of stock purchased by them, appel-lees would, doubtless, be the only proper parties to enforce such transfer, but that provision of the contract is not here involved.

We conclude that the corporation alone has a substantial beneficial interest in the enforcement of the covenant here involved, and that notwithstanding the fact it is not a party to the contract, it alone may prosecute an action to enforce such covenant. In D. M. Goodwillie Co. v. Commonwealth Electric Co., 241 Ill. 42, where an action to enforce the provisions of an agreement for an easement and to enjoin a breacli of sucli provisions, was brought by one, not a party to such agreement, it was held that the action might be maintained, and it was said:

“It has been held in this State that where a person, for a valuable .consideration, makes a promise to another for the benefit of a third person, such third person may maintain an action upon such promise; and it is not necessary in such case that there should be any consideration moving from the third person in whose favor the promise has been made. (Dean v. Walker, 107 Ill. 540; Webster v. Fleming, 178 Ill. 140; Ashelford v. Willis, 194 Ill. 492.) ”

Third. It is urged that Albert J. Elvig, or his legal representative, is a necessary party complainant. The bill alleges and the proof shows that Elvig died shortly after the contract was completely executed by the payment to appellant by Miller and Olson of the notes and the transfer to them and their wives of the shares of stock. When this was done Elvig’s function under the contract wholly terminated and he had no rights to be affected. He would not have been a necessary party if living.

Fourth. It is said the relief granted by the decree is broader than is warranted by the prayer of the bill and by a proper construction of the covenant.

The covenant is that appellant will not “enter into the ice business for the period of ten years In what is known as the cooler trade, either wholesale or retail, so as to interfere in any manner with the known business of the Chicago Artificial Ice Company, a corporation, in the down-town district of the City of Chicago,” etc. The prayer for injunction follows the language employed in the covenant. The decree restrains appellant “from in any way, directly or indirectly, entering into or continuing in the business of furnishing ice for water coolers,” etc.

It is insisted that the words “known business of the Chicago Artificial Ice Company,” as used in the covenant, should be construed to mean the “then known customers” of said ice company, and that the covenant should he construed as only prohibiting appellant from engaging in the cooler trade or business with persons then customers of the ice company.

The presumption obtains that the language employed in a contract was employed in the sense in which it is commonly understood. As defined by Webster, the word “business” means “occupation or employment,” and the word “customers” is the commonly employed designation of persons who have dealings with one who is engaged in an occupation or employment. The then known occupation or employment of the ice company was supplying ice for water coolers, and it was this occupation or employment that appellant covenanted not to interfere with in any manner.

The decree is reversed and the cause remanded.

Reversed and remcmded.


text:
    Netta Lakin, Appellee, v. South Side Elevated Railroad Company, Appellant.
    Gen. No. 17,104.
    1. Carriers — opening between platform and car. Where there was an opening of sixteen to eighteen inches between the station platform of an elevated railway company and a car platform owing to a curve in the tracks, and plaintiff fell and was injured in consequence, the questions whether defendant was negligent in so operating its train or in failing to warn plaintiff of the presence of such opening, or in failing to have the place properly lighted, or whether plaintiff exercised due care, were all properly submitted to the jury, and their verdict finding defendant guilty is warranted.
    2. Pleading — harmless error. Where a demurrer to a plea of the statute of limitations to an additional count has been improperly sustained and no evidence is introduced which is not competent under the original counts, and the verdict is referable solely to the negligence of defendant as alleged in the original counts, no harm results to defendant from the error.

      3. Limitations — statement of new cause of action. One of the tests for determining whether different counts state the same or a different cause of action is whether the same evidence will support the different counts.
    4. Pbactice — improper conduct before jury. Where plaintiff in an action for personal injuries, during her cross-examination, placed her head on her arm and began crying, was assisted into another room, and her husband later opened the door and within the hearing of the jury called in a loud tone of voice, “Doctor, doctor, I want a doctor quiet,” and the trial was suspended five minutes, when counsel for defendant failed to request the withdrawal of a juror and a continuance of the case, or a proper instruction on the subject, and ignored the incident until moving for a new trial, it is no ground for reversal.
    5. Verdict — damages—excessive. Verdict for $7,000 damages for injuries to a female passenger causing a miscarriage and subsequent neurasthenia held excessive and remittitur of $3,000 required.
    Appeal from the Superior Court of Cook county; the Hon. Wn> I.IAM H. McSurelt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed on condition; otherwise reversed and remanded.
    Opinion filed March 12, 1913.
    William B. Moss and William H. Haight, for appellant; Noble B. Judah, of counsel.
    Harper E. OsborN and Albert M. Cross, for ap-pellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is an appeal from a judgment entered in the Superior Court in favor of appellee and against appellant for $7,000, as damages for personal injuries. There have been two trials of the case. The first trial resulted in a judgment for appellant upon a directed verdict, which judgment was here reversed upon appeal, and the cause remanded. 148 Ill. App. 268.

The original declaration contained seven counts, the first, third and sixth of which were withdrawn. The second count alleges that on November 11,1905, appel-lee became a passenger on'the elevated railroad of appellant at the La Salle street station, to be carried to the Twelfth street station; that it was the dnty of appellant to furnish a safe place for appellee to alight from its train; that when said train arrived at said Twelfth street station appellant negligently stopped said train at a place where there was a wide opening between the platform of the train and the platform of said "station; that while appellee with all due care was attempting to alight from said trains she stepped in said opening and was injured, etc. The fourth count alleges, in addition, that upon the arrival of said train at said station, an employe of appellant in charge of said train announced the station and opened the gate of the car for appellee and others to get off, and that appellee while acting upon the invitation and under the direction of appellant, thus given, etc.

The fifth count contains the same allegations as the fourth, and further that it was the duty of appellant to have a good and sufficient light, so that said opening would be plainly visible; that said platform was dark, etc. The seventh count is the same as the fifth, except that it contains no allegation of the announcement of the station by an employe of appellant and of the opening of the gate and of the invitation to alight.

An additional count, filed after the reversal of the former judgment, and more than two years after the cause of action accrued, alleges a duty on the part of appellant to exercise due care in and about carrying appellee as such passenger and that while appellee was alighting from said train at said station, appellant so negligently managed, maintained and operated its said railroad, train and car, that by and through said negiigence, appellee fell into a large opening between the platform of said car and the platform of said station, etc.

To this additional count appellant interposed a plea of the statute of limitations, and appellee’s demurrer to- said plea having been sustained by the court, appellant elected to abide its plea. If, as is held in Wabash E. Co. v. Bhymer, 214 Ill. 579, one of the tests for determining whether different counts state the same or a different cause of action, is whether the same evidence will support the different counts, it may well be held that the plea of the statute of limitations to the additional count here involved,- was not vulnerable to demurrer, and that the demurrer should have been overruled. The additional count charges negligence generally in the management and operation of the train and car, and evidence would be admissible thereunder of conduct on the part of appellant in various particulars, contributing to the injury to appellee, which was not admissible under the counts originally filed. Conceding, however, that the demurrer to the plea was improperly sustained, no harm resulted to appellant, because no evidence was introduced which was not competent under the original counts and the verdict of the jury is referable solely to the negligence of appellant as alleged in the original counts. Chicago & A. R. Co. v. Scanlan, 170 Ill. 106; Chicago City R. Co. v. Leach, 182 Ill. 352.

At about 6 o’clock, p. m., on November 11, 1905, appellee became a passenger on one of appellant’s elevated trains at its La Salle street station, for the purpose of being carried to its Congress street station. The train consisted of five cars and appellee rode in the rear car. She inadvertently rode by the Congress street station and was informed that she might get off at the 12th street station and then return to the Congress street station, and decided to do so. She had only traveled upon the elevated railroad on two prior occasions, and had never boarded or alighted from a train at the 12th street station. When the train arrived and stopped at the 12th street station, the guard merely announced the station and opened the gate, and ap-pellee with other passengers upon the crowded car proceeded to alight from the rear platform of the car onto the station platform. Appellee was the last of the passengers to alight from the car, and immediately preceding her was a woman who wore a long trailing skirt. In stepping from the platform of the car, appellee failed to observe an opening 16 to 48 inches in width between that platform and the station platform, and stepped into snch opening and fell npon the station platform and thus received the injuries complained of. Appellee was then assisted to her feet, and into the same train and carried to the station nearest to her home on 59th street.

Appellee testified that the car was lighted, but that the platform of the car and the station platform were dark; that while she saw the stairway in the station platform, immediately opposite the point where she attempted to alight from the car, the station platform was not lighted. Only one other witness attempts to narrate what occurred upon the occasion in question and to describe the conditions existing there, bnt his testimony concerning an occurrence observed by him, even if true, manifestly related to another and different occasion than the one in question. Upon the occasion with reference to which he testified, he said that while he was standing on the rear platform of one car, he saw a woman attempt to alight from the front platform of the following car at a point where it was lighted beneath the station platform; that he saw a woman step into the opening and fall forward on her hands and knees, and saw her get up and go down the stairway in the platform. His description of the woman, he claims to have seen is wholly at variance with any approximately accurate description of appellee, and he did not pretend to identify appellee, but expressly doubted his ability to do so. The jury were warranted in disregarding his testimony upon the ground that, if true, it related to another and different occasion, wherein appellee was not involved.

For some distance north of a point 47 feet north of the north line of 12th street the tracks of appellant were located wholly in an alley, and going south from a point 115 feet north of the north line of 12th street and about 90 feet north of the station platform the tracks curved to the east, until they emerged from the alley to the private right of way of appellant. The total length of the south-bound station platform was 179.5 feet and the northerly 58.5 feet of said platform curved to the west, in correspondence, approximately, with the curve of the south-bound track. Necessarily, the platforms of south-bound cars which stopped at the curved portion of the station platform were farther removed from the station platform than the platforms of cars which stopped at points where the track and the platform were straight, and the distance between the car platform and the station platform at a point where the latter was curved was further increased by reason of the fact that the cars veered to the east on the curved track. The testimony shows that the distance between the car platforms and the station platform at points where the track was straight did not exceed one inch.

Whether or not appellant was negligent in so operating its trains that cars were stopped at its station platform at a point where there was an opening of 16 to 18 inches between said platform and the car platform, over which opening passengers were required to step in alighting from its cars, and whether or not appellant was negligent in failing to warn appellee through its guards or otherwise of the presence of such opening, and whether or not appellant was negligent in failing to have the place where the passengers were required to alight properly lighted, were all questions of fact properly submitted to the jury. This we say irrespective of the holding upon the former appeal, when substantially the same testimony was considered by the court, and which holding was in this case conclusive upon the trial court.

That a curve in the track, where the same was then constructed, was necessary, and that the rear platform of a train consisting of five. cars eonld not be stopped by appellant at its station platform to discharge and receive passengers without necessarily requiring an opening of from 16 to 18 inches between the platforms, have no relation to the charges of negligence with respect to appellant’s failure to warn appellee of the danger, or its failure to properly light the platform and is not conclusive against appellee as to the negligence charged in the second count of the declaration, with respect to which appellant apparently assumes the position that it involves an insurmountable engineering problem. The alleged engineering problem' would not exist if appellant had exercised its right of eminent domain or located its station a few feet further south, where it might have had a straight track and a straight platform, or had operated trains consisting of four cars, and required all passengers in the rear car to enter and alight by the front platform.

As tending to show that appellant was not guilty of negligence in permitting the opening in question to exist between the platform of the car and the station platform, great reliance is placed upon the admission by appellee, on tender of proof by appellant that during the period of five years next preceding November 11, 1905, when appellee was injured, there were 3,157,396, or a daily average of 1,729, paid fares at the Twelfth street station by persons boarding trains there; that observation showed that at each station twice as many persons passed through going both ways as paid fare; that during that period but four claims or reports had been made of injuries.to passengers on the same platform at said station, all of which claims or reports related to injuries occasioned in attempting to board trains and none in alighting from trains. Such or like proof would be entitled to more consideration, if it was limited to the experience of appellant in receiving and discharging passengers at the precise point on the platform where appellee attempted to’ alight when she was injured.

Whether or not appellee was in the exercise of due care for her own safety was also properly submitted to the jury, and we concur in what was said upon that subject in the opinion upon the former appeal.

We cannot say that the verdict of the jury upon the issues of appellant’s negligence and appellee’s due care is unwarranted.

The contention of appellant that the court improperly excluded certain evidence is without force. The evidence is in the record and was available to be considered by the jury. That objections to the admission of the evidence were sustained in the first instance and the evidence subsequently admitted, in one instance under stipulation, and in the other after counsel for appellee had withdrawn his objection to the question, did not detract from its probative value before the jury, but rather tended to give it added emphasis.

After the cross-examination of appellee had proceeded at considerable length, and before it was concluded, and while counsel for appellant were engaged in a short conference, appellee, while in the witness chair called for a drink of water, placed her arm upon the railing and placed her head upon her arm and began to cry. When a glass of water was brought to her, she raised her head, ceased crying and drank some of the water, and after handing the glass to the bailiff, again placed her head on her arm and began to cry and sob. She was assisted into a nearby room, and her husband, with the consent of counsel, was called from the witness room to attend her. The trial was suspended about twenty minutes, and appellee and her husband were left alone in the room where she had been taken. Upon the resumption of the trial, and while another witness was being examined, the husband of appellee opened the door of the room in which Ms wife was, and witHn the hearing of the jury, called in a loud tone of voice, “Doctor, doctor, I want a doctor quick.” The physicians present responded to the call and went into the room with appellee. The jury remained in their seats and the trial was suspended about five minutes.

It is insisted that tMs incident and the conduct of appellee and her husband operated to the prejudice of appellant and requires a reversal of the judgment. Counsel say the circumstances indicate that the conduct of appellee and her husband was not the spontaneous and involuntary workings of natural forces; that the incident required a continuance of the case and the selection of a new jury, hut the trial was allowed to proceed without comment from the court, and without any instruction to the jury on the subject. If counsel apprehended that the incident would operate to the prejudice of appellant, they might with propriety have, requested the withdrawal of a juror and a continuance of the case, or requested a proper instruction on the subject, hut the record discloses that they wholly ignored the incident until they interposed their motion for a new trial. The consideration of a somewhat more aggravated incident was involved in Chicago & E. R. Co. v. Meech, 163 Ill. 305, and held not to he ground for reversal. We have arrived at the like conclusion in the case at har.

The evidence hearing upon the character and extent of appellee’s injuries tends to show that immediately following her fall and as a result thereof, she was confined to her hed for about two weeks; that she suffered a miscarriage; that she was weak, nervous and hysterical; that there was a bruised and discolored area, about two inches in length and half an inch in width, over the abdomen on the right near the illiac region; that her temperature was 99.8 and her pulse was much accelerated and irregular; that there were blood clots in the vagina and the womb was enlarged two or three times its normal size, and the walls were tMckened and spongy; that there was a gradual and marked improvement in these conditions; that she did not leave the house until Christmas, 1905; that in February following she moved with her husband to Indiana on a farm; that she was unable to remain on the farm and do housework and went to the home of her mother where she remained until May; that during that time she was in bed most of the time; that in May she returned to the farm, riding in a buggy thirty miles; that she remained on the farm until July, when she returned to her mother’s home, where she remained until September; that she then moved to another farm where she remained until March, 1908; that she then moved to another farm where she remained a year; that she then moved to the village of Fair Oaks where she remained until February, 1910, when she moved to a farm near that village; that with the assistance of her husband she did the housework; that she occasionally milked the cows and hoed and weeded the garden; that on one occasion she rode on a cultivator; that since her injury she has had two normal child births, one on March 20, 1907, and one on March 18, 1909; that the children have survived and she has cared for them. There is also evidence strongly tending to show that while residing in Fair Oaks she occasionally attended and participated in dances. At the time of her injury appellee was 23 years of age and weighed from 130 to 140 pounds. She has since lost from 25 to 30 pounds, and continues to have headaches and is neurasthenic.

A careful examination and consideration of the evidence impels us to the conclusion that the damages awarded appellee are more than compensatory and are excessive.

If, within ten days, appellee will remit $3,000 from the judgment, the judgment will be affirmed for $4,000; otherwise the judgment will be reversed and the cause remanded.

Affirmed if remittitur filed for $3,000; otherwise reversed cmd remanded.


text:
    Letitia Dunham, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 17,131.
    1. Evidence — opinions based on subjective symptoms. Where a physician who has treated the plaintiff professionally testifies that during an examination made for the purpose of testifying plaintiff “suffered great pain,” and that “from a lack of sensitiveness over the lower part of the back,” he found some injury to the spine, such answers do not necessarily imply that they were based on subjective symptoms, or were conclusions from statements or voluntary actions of plaintiff, but if cross-examination discloses the fact that such opinions or statements were based upon subjective symptoms, they should upon motion be excluded, notwithstanding the fact that the witness had previously treated the plaintiff professionally.
    2. Evidence — stating reasons for opinions. Where an objection to a medical expert witness stating his reasons for his opinions is improperly sustained, but he is subsequently permitted to state such reasons at length and in detail, there is no substantial error.
    3. Damages — refusal to submit to physical examination. Where plaintiff in an action for personal injuries states in cross-examination that she is willing to submit to a medical examination if her attorney tells her to do so, and her attorney refuses to answer a question whether he will permit such examination, and both the court and the counsel construe such attitudes as a refusal, and defendant’s counsel comment at length on such refusal in argument to the jury, the only benefit which defendant could have derived from an express refusal before the jury is more than had by such argument of its counsel before the jury.
    4. Evidence — suppression of. Where plaintiff in an action for personal injuries testifies that prior to her injury she was boarding several men, naming them, and the court sustains an objection to the question, “Do you know where any of them are now?” when it does not appear that any of them boarded with her after her injury or that they had any opportunity to observe her condition, the ruling is not prejudicial.
    5. Pkactice — improper argument. Where counsel for defendant in his argument before the jury characterized plaintiff’s case as a “frame-up” and a “fake,” he is not in position to complain of severe comments by plaintiff’s counsel reflecting on defendant’s good faith and witnesses, where the court has sustained objections interposed to such comments.

      6. Damages — excessive. In an action for personal injuries caused by a collision of street ears, where the question of the character and extent of plaintiffs injuries is dependant wholly upon the credibility of the several witnesses, held, this court is not prepared to say that the evidence does not justify a verdict for $8,000 damages. Baume, J., dissenting.
    Appeal from the Superior Court of Cook county; the Hon. Thomas M. Jett, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed March 12, 1913.
    Rehearing denied April 3, 1913.
    Franklin B. Hussey and C. LeRoy Brown, for appellant; Leokard A. Busby, of counsel.
    John R. Harrington and Guerin, Gallagher & Barrett,' 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 alleged to have been occasioned through the negligence of appellant. A trial in the Superior Court resulted in a verdict and judgment against appellant for $8,000.

Upon this appeal the only grounds relied upon by appellant for a reversal of the judgment are that the damages awarded are excessive; that the court erred in its rulings on the admission of evidence; and that counsel for appellee was guilty of misconduct in his argument to the jury.

We shall notice first the errors assigned upon the rulings of the court in the admission of evidence and upon the alleged misconduct of counsel, reserving to the last a discussion of the assignment of error relating to the amount of damages.

Dr. Wilbur W. McCleary, who had treated appellee professionally from the time of her injury until six or seven weeks prior to the trial, and who had seen her professionally a week prior to an examination made by Mm a week before tbe trial, for tbe purpose of qualifying bimself to testify as an expert, having testified fully regarding Ms professional treatment of appellee and tbe nature and extent of ber injuries, was asked on direct examination witb reference to bis last examination of appellee wbat be found regarding tbe conditions existing there. Tbe witness replied that in examining tbe body be found she could not retain ber urine; that be examined ber rectum and found tbe sphincter muscle without resistance; and that she suffered great pain. Appellant’s motion to strike out from tbe answer of tbe witness tbe words, “she suffered great pain” was overruled. Tbe witness further replied, that be found there an ankylosis of tbe vertebrae from about tbe fourth vertebrae to tbe sacrum; that by examining tbe reflexes of tbe legs and from lack of sensitiveness over tbe legs and tbe lower part of tbe back be found there was some injury to tbe lower part of tbe spine. Appellant moved that that part of tbe answer of tbe witness, in which be said be found “from a lack of sensitiveness over tbe back, and lower part of tbe spine” be stricken out as subjective. Tbe court remarked, “Yes, that is getting right close to tbe line, but owing to bis previous attendance here it may stand.” Tbe witness further replied that be found a partial paralysis of tbe left leg, but not so much on tbe right leg and that there was a weakening in tbe outer muscles of tbe back. Appellant’s motions to strike these answers were denied.

Dr. John J. Wuerth, who bad treated appellee professionally as late as December, 1909, and who made two physical examinations, external and internal, of appellee in April, 1910, a month prior to tbe trial, was asked to state bis diagnosis of ber case as be then found it, based upon bis medical knowledge and the actual knowledge wMcb be bad obtained from bis previous examinations. Tbe inquiry was objected to because it related to subjective matters, which objection was overruled, and the witness stated that be d'iag-nosed the ease as a traumatism of the lower part of the spinal cord. Over objection the witness was also permitted to state that, in his opinion, based npon his medical experience and his examination, appellee was then suffering from pain.

Both of these witnesses were conversant with the distinction between objective and subjective symptoms, and it is manifest that in the main the conditions stated as having been found by them upon their last examination of appellee were presumably predicated upon then existing objective symptoms. Their answers did not necessarily imply that the conditions stated were based upon subjective symptoms, and it does not appear that the witnesses were influenced in their conclusions by any statements made by appellee, or by any voluntary action on her part. If a cross-examination of the witnesses disclosed that their opinions or statements regarding the condition of appel-lee were based upon subjective symptoms observed during an examination made for the purpose of qualifying themselves to testify as experts, such opinions or statements should, upon motion, have been excluded, notwithstanding the fact that said witnesses had previously treated appellee professionally. The reasons for the distinction in this regard are well understood and the rule relating to the admission of such evidence is well settled. West Chicago St. R. Co. v. Carr, 170 Ill. 478; Greinke v. Chicago City Ry. Co., 234 Ill. 564; Shaughnessy v. Holt, 236 Ill. 485; Schmidt v. Chicago City Ry. Co., 239 Ill. 494. We perceive nothing in the cases cited, which, applied to the line of examination here involved, condemns the rulings of the trial court thereon as prejudicially erroneous.

There is no substantial ground for the objection that Dr. Kuh, called by appellant as an expert witness, was not permitted to state his reasons for his opinions. In two or more instances objections interposed to the statement by the witness of his reasons for his opinions were improperly sustained, but a careful examination of the evidence of such witness, as it appears in the record, discloses that subsequent to such erroneous rulings by the court the witness, both upon his direct and cross-examination, stated his reasons for his opinions at length and in detail.

It is next urged that the court improperly excluded evidence of appellee’s refusal to-submit to a medical examination. Upon this subject the record of the cross-examination of appellee discloses, in substance, the following:

Mr. Hussey: “Well, are you willing to allow a doctor to examine you?”

Mr. Guerin: “Now, that is objected to as incompetent, irrelevant, immaterial. ’ ’

Mr. Hussey: “If your counsel is, are you willing?”

Mr. Guerin: “That is objected to.”

The Court: “She may answer.”

The Witness: “If my attorneys say so.”

Mr. Hussey: “You are willing, if your attorneys say so?”

The Witness: “Not without my attorneys’ advice.”

Mr. Hussey: “No, hut are you willing to-if they don’t object.”

Mr. Guerin: “That is objected to.”

The Court: “She may answer.”

The Witness: “Whatever my attorneys tell me to do.”

Mr. Hussey: “Well, Mr. Guerin, will you permit a doctor to examine this woman?”

Mr. Guerin: “I object, it is an improper question for counsel to ask me.”

The Court: “Well, I will sustain the objection.”

Mr. Hussey: “Without respect to knowing what your counsel say or don’t say are you willing, as far as you are concerned, to he examined by a doctor?”

Mr. Guerin: “That is objected to, it has been answered.”

The Court: “She has in effect answered the question. ’ ’

Mr. Hussey: “Your Honor, if I understand it, then, construed her answer covers the question I just asked her, that irrespective of what her counsel would say or not say. I would like her just as a matter of good faith, your Honor, to answer. That is all it goes to.”

Mr. Guerin: “I object to that.”

Mr. Hussey: “Are you willing yourself to he examined by a doctor at our request?”

Mr. Guerin: “I object to the question, and also to the remarks of counsel.”

The Court: “At this time I will sustain the objection.”

It is obvious from the foregoing that both court and counsel for appellant construed the attitude of ap-pellee and her counsel as amounting to a refusal by appellee to then submit to a medical examination at the instance of appellant. Counsel for appellant in argument to the jury commented at length upon the refusal of .appellee to submit to a medical examination. If the holding in City of Chicago v. McNally, 227 Ill. 14, is to be considered conclusive of the question, as it appears to be, the rulings of the trial court were more favorable to appellant than the ruling there involved and considered, but here, as in the McNally case, supra, “the only benefit which appellant could have derived from an express refusal, before the jury, by the appellee to submit to a personal examination it more than had by the argument of its counsel before the jury.”

The record discloses that upon her direct examination appellee testified that at and prior to her injury she was boarding seven boarders and that upon her recross-examination by counsel for appellant she gave the names of such boarders and was then asked, “Do you know where any of them are now?” To this question an objection was sustained by the court. It is urged that the ruling was erroneous, because it operated to exclude testimony tending to show that appel-lee was suppressing evidence bearing upon the extent of her alleged injuries. It does not appear that any of the persons named by appellee boarded with her after her injury or that they bad any opportunity to observe ber condition. Appellant was, therefore, not prejudiced by the ruling.

During bis closing argument to the jury counsel for appellee repeatedly used language reflecting upon the good faith of the defense interposed by appellant as to the extent of appellee’s injuries, and also commented with severity upon the witnesses called by appellant to testify as experts. Notwithstanding all of appellant’s objections to such language were sustained, it is insisted that prejudicial and reversible error resulted. That appellee' was severely injured by the negligence of appellant does not admit of doubt, yet counsel for appellant in his closing argument to the jury characterized appellee’s case as “dishonest”, a “frame-up”, a “fraud”, a “sham” and a “fake”. Appellant’s counsel appear to have furnished the ammunition for the explosion which followed, and is not, therefore, in a position to complain. Upon the record, as made, appellant’s rights, if any, were fully protected by the action of the court in sustaining the objections interposed.

Upon the occasion of her injury, at about 6 o’clock, p. m., on July 12,1909, appellee was sitting on the north side and about in the center, of an east-bound 47th street car. As the car was crossing Wentworth avenue, she observed two cars coupled together approaching rapidly from the north and appreciating that a collision was imminent, she attempted to leave her seat, but had not wholly succeeded in doing so when the cars collided. The 47th street car was struck at about its center with sufficient force to lift the trucks from the track and to raise up the north side of the car. Ap-pellee was thrown into the aisle upon the floor of the car and struck the small of her back against the iron upright which supported a seat on the opposite side of -the car. She was carried from the car to the office of Dr. McCleary, located on the corner of the streets named, and was placed upon an operating table, where she remained abont an bonr, and was then conveyed in a police ambulance to her borne.

The evidence introduced on behalf of appellee tends to show that immediately following her injury, although she retained her consciousness, she suffered from severe, pain and nervous shock; that while in the physician’s office her clothing was not removed and no physical examination was made, but an opiate and strychnine were administered to relieve pain; that at about 8 o’clock p. m., when the physician arrived at her home, her clothing was removed and an examination of her injuries was made; that she remained in bed until September 1st, following, when she was able to sit up only a few minutes; that she had frequent spells of vomiting; that she was not able to walk until about the first of October and was unable to leave the house until November; that when she left her bed in September she found she could not retain her urine, which dribbled away when she stooped down or stood up, and that she has since been obliged to constantly wear napkins; that her rectum became relaxed and the sphincter muscle was without resistance, so that she was unable to control her bowels; that she constantly suffers severe pain in her back and legs and is unable to walk without support and unable to do ordinary housework. Dr. McOleary and Dr. Wuerth testified, in substance, that upon their first physical examination of appellee they found a great amount of swelling and tenderness on the lower part of the spinal column, extending down over the sacrum; that ap-pellee was exquisitely sensitive over the contused area which was black and blue over the base of the spine; that there was a very tender spot along over the fourth or fifth lumbar vertebra; that there were symptoms of a fracture of the spinous process of that vertebra ; that they found an injury to the lower part of the spinal column, to the muscles of the back, and to the nerves and blood vessels in the lumbar region; that while she could move her arms and legs, she could not move the muscles in the lumbar region about the spinal column and could not flex and extend the lower part of her spinal column; that later examinations disclosed a relaxation of the rectum, vagina and mouth of the urethra; that a chemical examination of the urine disclosed no abnormality. Dr. McCleary testified that there was ankylosis of the vertebrae from the fourth vertebra to the sacrum, paralysis of the bladder and rectum and partial paralysis of the left leg.

The evidence for appellee further tends to show that at the time she was injured she was 52 years of age; that she then weighed about 160 pounds; that her previous health was good; that she has since lost about thirty pounds in weight; that her condition is permanent and is directly attributable to the injuries sustained in the collision.

Witnesses called as experts on behalf of appellant testified that in their opinion a fall such as that described by appellee could not have produced injuries to the extent claimed; that if appellee had sustained a fracture of the spinous process of the fourth or fifth lumbar vertebra, the pain would have been so intense that it would have been impossible for her to lie on her back, as she did; that ankylosis of the vertebrae in the lumbar region would produce an erectness instead of a stoop in her carriage; that paralysis of the leg, bladder and rectum, if it ever existed, would have developed wholly and immediately following an injury to the spinal cord; that partial paralysis never precedes total paralysis; that the fracture of the spinous process of a vertebra would have no effect upon the spinal cord inside the body of the vertebra or upon the nerves controlling the legs, bladder and rectum; that if the cauda equina had been-injured, shock to a much greater degree and accompanied by a manifestation of different symptoms would have been present; that where there is incontinence of urine due to paralysis tlie bladder would not be two-thirds full of urine (as was testified to by one of appellee’s physicians) , because there would be a constant dribble and the bladder would not fill to that extent; that in such case distinct abnormalities would be apparent in the urine after several months upon chemical examination; that in such case a person would not urinate on volition several times a day, as appellee did; that if appellee was affected with paralysis and confined to her bed for a number of weeks bed sores would have inevitably resulted; that certain pelvic and rectal conditions, not the result of the injury, manifest in ap-pellee, were competent to produce the nervous disorders and bladder and rectal troubles complained of.

Appellant also introduced evidence tending to show that appellee was able to walk without assistance; that there was no apparent change in her general appearance. It also appears that two women who occasionally attended her during the time she claims to have been confined to her bed, and who assisted her in doing her housework, were not called to testify to her physical condition. Other incidents and circumstances disclosed by the record are referred to as being inconsistent with, and in contradiction of, appel-lee’s claim as to the character and extent of her injuries.

An analysis of the testimony of the witnesses, and of the facts and circumstances in evidence, is not practicable here. A diligent examination of the evidence in the record, bearing upon the character and extent of the injuries sustained by appellee, discloses that the solution of that question is dependent wholly upon the credibility of the several witnesses who testified in the case. If the testimony of the witnesses called on behalf of appellee is true, the amount of damages awarded by the jury is not excessive; whereas, if credit be given to the testimony of witnesses called by appellant, it must be conceded that the amount of the verdict is excessive. In this case, a majority of the court, the writer not concurring, are not prepared to say that the evidence does not justify a recovery hy appellee of the amount of damages awarded hy the jury.

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

Judgment affirmed.


text:
    Emma A. Jones, Defendant in Error, v. Louise C. Blanks, Plaintiff in Error.
    Gen. No. 18,748.
    1. Landlord and tenant — failure to repair. In a joint action in forcible detainer and to recover rent under a lease in which the plaintiff had agreed to make certain repairs, where plaintiff’s failure to make such repairs rendered the premises untenantable, the defendant is entitled to make the same and recoup the reasonable cost thereof from the rent, and, in any case, a tenant is at least entitled to recoup from the rent damages arising from the failure to repair as agreed to the extent of the difference between the rental value of the premises with and without such repairs.
    2. Landlord and tenant — repairs made by tenant. Where the agent of a landlord is authorized, either expressly or by the usual known custom prevailing in the business of his agency, to direct a tenant to make improvements and repairs stipulated in a lease to be made by the landlord, after failure on the part of the latter to make them, and to deduct the cost of the same from the rent, the tenant is entitled to recoup such cost in an action for rent.
    3. Evidence — statements to agent. Where the evidence in an action for rent shows that the agent of the plaintiff had authorized defendant to make certain repairs, and that after the decease of such agent another agent has been appointed, the testimony of such agent as to what was said by plaintiff to him regarding the repairs so made is competent on request of defendant, and, whether it operates for or against defendant, should be admitted.
    Error to the Municipal Court of Chicago; the Hon. Perry L. Persons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 13, 1913.
    Everett JeNNINGs and Harry L. Strohm, for plaintiff in error.
    James McKeag, for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court.

Defendant in error instituted against plaintiff in error in the Municipal Court her joint action in forcible detainer and to recover $50 rent for the demised premises for the month of June, 1912. Upon-the trial at the close of all the evidence, the court instructed the jury to return a verdict finding plaintiff in error guilty of 'withholding from defendant in error the possession of the premises involved and assessing the damages against plaintiff in error at $50, and upon the verdict so returned, judgment was entered against plaintiff in error. This writ of error is prosecuted to reverse such judgment.

On April 4, 1912, defendant in error, as party of the first part, executed a written lease to plaintiff in error, for a term beginning May 1, 1912, and ending April 30,1914, of certain premises located at 7636 Bond avenue, Chicago, to be occupied as a private residence, and plaintiff in error agreed to pay as rent therefor the sum of $1,200, payable in twenty-four monthly in-stalments of $50 in advance. The lease contained, among other provisions, the following:

“The said 1st party hereby agrees to calcimine parlor, dining room, library, and front room in attic, and paint walls of kitchen and pantry, and to put new oak floors in parlor, back parlor, and varnish floors in dining room, library, bath room and front hall, also put woodwork around sink in sanitary condition.”

The evidence discloses that defendant in error resided in New York and that one E. W. Washburn acted as her agent in securing a tenant for the premises and collecting the rent; that plaintiff in error entered into possession of the premises; that defendant in error having failed to make the improvements and repairs provided for in the lease, plaintiff in error interviewed Washbnrn with reference to said repairs, and was directed by Washbnrn to have the stipulated improvements and repairs made and pay for the same and deduct the amount paid therefor from the rent; that a like direction was given to plaintiff in error by the husband of defendant in error; that acting on such direction plaintiff in error procured the stipulated repairs to be made and paid for the same; that Washburn died, on May 6, 1912, and defendant in error designated the firm of Cooper, Farwell & Ellinwood as her agents to succeed Wash-bum; that on June 1, 1912, demand for the rent was made on plaintiff in error, at the premises, by a man unknown to her, and who was unable to show his authority, and for that reason plaintiff in error refused to pay the same, but signified her willingness to pay the rent when she knew the right party to pay it to; that on June 10th, following, a five-day notice was served upon her by Ellinwood to pay the rent to said firm; that prior to the service of such notice plaintiff in error had no knowledge that defendant in error had designated said firm as her agents to succeed Washburn; that on June 13, following, plaintiff in error tendered to said firm in payment for said rent the receipts for the amounts paid by her for said improvements and repairs and the balance in cash, which tender was refused.

If Washburn was authorized, either expressly by defendant in error, or by the usual known custom prevailing in the business of his agency, to direct plaintiff in error to make the improvements and repairs stipulated in the lease to be made by defendant in error, and to deduct the cost of the same from the rent, defendant in error would be entitled to recoup such cost from the claim for rent in this action. The evidence admitted by the court did not show such express authority from defendant in error to Washburn, but plaintiff in error was not permitted to show what was said by defendant in error to Ellinwood regarding the improvements and repairs made by plaintiff in error. Whether such evidence would have operated for or against plaintiff in error, it was competent and should have been admitted.

The trial court also appears to have held that any claim of plaintiff in error for damages arising out of the failure of defendant in error to make the stipulated improvements and repairs could not in this action be recouped from the rent. Plaintiff in error was at least entitled to recoup such damages from the rent, to the extent of the difference between the rental value of the premises with and without such improvements and repairs. Rubens v. Hill, 213 Ill. 523.

Furthermore, if the failure of defendant in error to make some of the stipulated improvements and repairs rendered the premises untenantable, plaintiff in error was entitled to make the same and recoup the reasonable cost thereof from the rent. Cromwell v. Allen, 151 Ill. App. 404, and authorities cited.

The judgment is reversed and the cause remanded.

Reversed and remanded.