author: Mr. Justice. Philbrick

text:
    Gilbert Miller, Appellant, v. The Milwaukee Mechanics’ Insurance Company, Appellee.
    1. Insurance—proof of loss. A condition in a fire policy requiring proof of loss within 60 days of the date of the fire and relieving the company from liability in case of failure to comply with such requirement, is valid.
    2. Insurance—proof of loss. A condition of a fire insurance policy requiring proof of loss within 60 days of the fire is not complied with where proofs are furnished 61 days thereafter and the company is thereby relieved from liability.
    Appeal from the Circuit Court of McDonough county; the Hon. Harry M. Waggoner, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 18, 1913.

      Elting & Hainline and H. H. Harris, for appellant; Gilbert J. Hainline, of counsel.
    Flack & Lawyer, for appellee.
   Mr. Justice. Philbrick

delivered the opinion of the court.

Plaintiff brought suit against the Milwaukee Mechanics’ Insurance Company for loss under a policy of insurance issued by that company to him on a restaurant, stock and fixtures contained therein. This policy was one known as a standard policy and required as one of the conditions thereof that if a loss should occur the plaintiff should within sixty days after the fire furnish defendant with a full and complete proof of loss according to the requirements of said policy.

The fire occurred on July 12, 1911, proofs of loss were furnished to the defendant by plaintiff September 11,1911.

The amended declaration upon which the judgment was finally determined contained the policy together with the conditions named therein, there being numerous others besides the one herein cited, showing the date of the fire and the date when proofs of loss were furnished, the declaration does not aver any waiver or release of the conditions. Defendant demurred to the declaration, the demurrer was sustained. Plaintiff elected to stand by his declaration and judgment was rendered against him on the demurrer and in bar of action, from which he appeals.

Plaintiff and defendant entered into the contract of insurance of which the condition set forth was one of the material conditions of the policy and under the contract made by plaintiff with defendant he was required to furnish sworn proofs of loss within sixty days from the date of the fire, and if he failed to do so the company was relieved from any liability under the terms of the policy. The question necessary to determine is whether or not this condition of the policy is a valid condition and one that is binding upon the parties. Under a like policy it is held a valid and binding condition, in Dwelling House Ins. Co. v. Jones, 47 Ill. App. 261. While some courts have held to the contrary doctrine, we are satisfied that the holding in that case is correct. A full compilation of authorities on this question is found in 15 Am. and Eng. Ann. Cas., 336 [note to Davis v. Northwestern Mut. Fire Ass’n, 48 Wash. 50], and in 157 Fed. Rep. 695.

The declaration in this case alleging that the loss occurred on the 12th day of July, 1911, and that proofs of loss were furnished on the 11th day of September, 1911, sixty-one days after the fire occurred, was not a compliance with the condition of the policy and that by reason of the failure to furnish these proofs of loss within the time required defendant is relieved from liability thereunder.

The trial court properly sustained the demurrer to this declaration, and its judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Philbrick

license: Public Domain

text:
    Nathaniel P. Daughetee, Appellee, v. The Ohio Oil Company, Appellant.
    Appeals and errors—res adjudicata. The opinion and judgment of the Appellate Court on one appeal in a cause is binding upon it and upon the trial court, and questions then determined cannot be reviewed on subsequent appeals in the cause when the record is the saíne or substantially so.
    Appeal from the Circuit Court of Clark county; the Hon. E. R. E. Kimbrough, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 18, 1913.

      Abram Simmons and Golden, Scholfield & Schol- ■ field, for appellant.
    Frank T. O ’Hair and Davison & Bartlett, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Appellee brought this action against appellant to recover for damag’es for failure to comply with the terms of an oil and gas lease executed by appellee to Hoblitzell and Company and assigned by Hoblitzell and Company to appellant. This is the second appeal to this court. In the first trial appellee recovered a judgment against appellant for $5,000 and an appeal was prosecuted to this court by appellant, that appeal was heard and opinion filed. 151 Ill. App. 102. This court in then determining the questions involved stated the law applicable thereto, and held that under this lease the plaintiff was entitled to recover, but held that while the court instructed the jury as to the correct measure of damages, that it erred in directing the jury as to the time when the right to damages accrued; by the instruction given the court informed the jury that the damages began to accrue to the plaintiff on the date of the assignment of the lease from Hoblitzell and Company to appellant; this court held that damages did not begin to accrue until the laying of the pipe line, according to the terms of the lease, and by reason of that error the judgment was reversed.

The cause was reinstated in the trial court and a second trial had; the second trial was had before the. court without a jury, by agreement, and judgment rendered against appellant for $2,828, and costs, from which it prosecutes this second appeal.

The record as it is now before the court is in substantially the same condition, so far as the evidence is concerned, as on the former appeal, the only difference being the addition of some expert testimony by appellant relative to the value of this oil land and conditions relating thereto. Counsel have attempted to reargue the entire case, involving the questions presented to this court on the former hearing. The former opinion and judgment of this court is binding, not only upon the trial court but upon this court, and we cannot review the questions then determined even though we should be inclined to do so. The former opinion elaborately set forth all of the facts and the law governing this case and it is unnecessary to repeat them, and this court is now bound thereby. Conner v. Conner, 163 Ill. App. 439.

Appellant attempts to assign as error in this court the action of the trial court in refusing to hold its 3rd, 8th, 16th, 17th, 19th, 21st and 22nd propositions of law submitted to it. The former opinion of this court finally determined all the questions in these propositions, and the court could not do otherwise than refuse them. It committed no error in so doing.

The questions of law presented to the trial court on the second hearing involved only the law as was determined by this court upon the former appeal and all questions determined by the former appeal are now res adjudicate!,. The trial court followed the rule laid down by this court in the former opinion as it was bound to do, and the questions so determined are not now subject to review in this court.

The judgment will, therefore, be affirmed.

Affirmed.


text:
    George Driskell, Appellee, v. W. A. Flint, Appellant.
    1. Evidence—where statements made by payee of note are inadmissible. In an action by an indorsee against the maker of a note, testimony that the payee had the notes in his possession and collected interest from defendant after maturity and made statements to defendant that he was still the owner of the note and that it was held by plaintiff as collateral security is inadmissible where defendant can offer no proof that the payee had possession of the notes except the statements which he seeks to introduce in evidence.
    2. Evidence—what is necessary before statements of payee as to ownership of note are admissible. In an action on a note by an indorsee against the maker, statements of the payee after maturity that he was the owner of the note are inadmissible where there is no proof that payee had possession of them or that the statements were made in the presence of plaintiff.
    Appeal from the Circuit Court of Vermilion county; the Hon. E. E. E. Kimbrough, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 18, 1913.
    C. M. Briggs and 'Jay Briggs, for appellant.
    Tilton & Taylor, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Defendant, W. A. Flint, together with other parties, executed his promissory note of which he was the principal maker, dated March 1, 1903, for the principal sum of $1,500, due twelve months after date, payable to one Sol Mercer, with interest at the rate of seven per cent, if not paid when due. This note bears the following indorsement: “March 16, 1903. Pay the within to George Driskell. Sol Mercer.

“Paid interest April 13, 1908, $200.

“Paid interest April 23, 1908, $200.”

Defendants filed special pleas to the declaration which were in substance that plaintiff was not the owner of the note; that plaintiff did not receive the note in due course and was not an innocent holder thereof; that the note was assigned to plaintiff after maturity. Additional pleas of set-off were filed, claiming set-off as against Sol Mercer, the original payee. Upon the trial plaintiff obtained a verdict for the amount due, principal and interest on Ms. note. A .motion for a new trial was denied, and judgment rendered on the verdict, from which judgment defendant appeals.

The testimony of the defendant is that on the 7th day of November, 1904, he paid to Sol Mercer, the original payee of this note, interest to the amount of $105; that this payment was made at the office of the defendant in Ho'opeston, Illinois; that at that time Sol Mercer, the original payee, was in his office and had the note with him; that the note was exhibited to the defendant and was in the possession of Sol Mercer at the time of that payment.

Sol Mercer did not testify in this case. If those facts are true, then Sol Mercer, the original payee of this note, had it in his possession about nine months after its maturity and received tMs payment of interest thereon.

Following this testimony of the defendant, the defendant then offered to prove that after Sol Mercer had so had this note in his possession and received the payment of interest thereon, he had made numerous statements and declarations to the defendant that he was still the owner of the note and that the note was held by plaintiff as collateral security, but at the time these various statements and declarations were made, defendant could offer no proof of possession of the note at these various times aside from the statements made by Mercer.

The court refused to admit these statements and declarations of Mercer on objection of plaintiff and held that before defendant was entitled to such declarations and statements made by Mercer, it was incumbent on him to show when the declarations and statements were made by Mercer he then had the possession of the note or that the declarations and statements were made in the presence of the plaintiff. Defendant could not make the proof required by the court in order to admit the statements and declarations of Mercer, but insisted that having shown by competent testimony that about nine months after the maturity of the note Sol Mercer had the possession of this note and received interest thereon, that this was sufficient to permit him to show any statements made thereafter by Sol Mercer concerning the ownership and possession of this note whether made in the presence of tho plaintiff or not and whether or not Mercer at the time of these statements and declarations actually had the possession of the note.

After testifying that Sol Mercer had this note in his possession on the 7th day of November, 1904, at the time he made payment of interest thereon of $105, the court permitted defendant to offer evidence under his pleas of set-off as- to whether or not Sol Mercer was indebted to the defendant at that time. The evidence of the defendant that Sol Mercer had in his possession this note about the 7th of November, 1904, at the time of the $105 interest payment was made is denied by the plaintiff who testified that the note was assigned to him on the 16th day of March, 1903, the date of the indorsement thereon by Sol Mercer and the consideration of the assignment was a preexisting indebtedness owed by Mercer to the plaintiff of the amount of this note, and that at no time after that date did Sol Mercer ever have the possession of or ever have any right to the possession of this note.

While other errors are assigned on this record relating to the admission of evidence and to the instructions given by the court, from an examination of the record we are satisfied that if the trial court was correct in sustaining the objection to the offer of the evidence of defendant concerning the statements and declarations of Mercer, then there is no error in this record, and the only question that it is necessary for us to determine is the ruling of the court upon this evidence.

From an examination of the authorities we are satisfied that the trial court committed no error in sustaining the objections to the offers of proof made by defendant which were not admitted in evidence, it being admitted by defendant’s counsel at the time of the offer of this evidence that he could not show that at the time of the declarations, statements and admissions which he offered were made that Sol Mercer then had the note in his possession, or was the owner thereof further than had been shown at that time, but he relied upon the showing made that Mercer had the note in his possession on the 7th of November, 1904, insisted that by showing this fact it was a sufficient showing on the part of the defendant to entitle him to submit to the jury the question whether or not the note was assigned before' maturity, and that if it was a fact that Mercer had the note with him November 7, 1911, which at that time was uncontradicted in the record, that he was entitled by reason thereof to show any subsequent statements or admissions made by Mercer.

Such statements and admissions must be held to be statements and declarations of one not a party to this action, and under the general rule of evidence that such statements and declarations are not admissible unless made at a time when Mercer had possession of the note or were made in the presence of plaintiff, the objection thereto was properly sustained. While under the authorities cited by defendant, the rule is laid down that declarations made by the holder of a note after maturity while he has the possession of the note are admissible as against a subsequent indorsee, after maturity, they do not go to the extent contended for by counsel for defendant that any statements made after maturity are competent without showing that at the time of the statement offered the party making the statements then had the possession of the note, or that the statements were in the presence of the plaintiff.

We are of the opinion that the trial court properly sustained the objections to the testimony offered, and that there is no reversible error in this record.

The judgment is, therefore, affirmed.

Affirmed.


text:
    Emma Kelley for Use of J. Y. Chisholm, Trustee, Appellee, v. People’s National Fire Insurance Company, Appellant.
    1. Insurance—other insurance. Where a policy of insurance issued to a mortgagor provides that if any other insurance is obtained on the property without the consent of insurer the policy shall be void, it is not avoided by the fact that the mortgagee has a policy issued without the knowledge of mortgagor and afterwards promises the mortgagor that he will have it cancelled.
    2. Insurance—mortgagee and owner may both insure. The mortgagee and owner of property each have a separate and distinct insurable interest in the property and either may obtain insurance upon such interest and it does not thereby amount to double insurance.
    3. Insurance—where insurance by mortgagee is without the consent of the owner. In an action on an insurance policy, the fact that a mortgagee has the property insured by another company without the knowledge of plaintiff the owner does not limit defendant’s liability to a proportionate share of the loss.
    4. Insurance—where judgments are a lien on the property. In an action on an insurance policy, the fact that judgments were obtained which became a lien on the property does not change the title to the property or prevent plaintiff from recovering the insurance.
    5. Evidence—assessed value of property. In an action to recover insurance defendant is not permitted to show assessed value of plaintiff’s property as shown by assessment returned to the county treasurer.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 18, 1913.
    Frederick A. Brown and William R. T. Ewen, Jr., for appellant; Raymond S. Pruitt, of counsel.

      Fitz Henry & Martin and Leslie J. Owen, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action upon a fire insurance policy- issued by the defendant to plaintiff who sues for the use of J. Y. Chisholm, trustee in bankruptcy. Plaintiff Emma Kelley was the owner of a piece of property in Leroy, McLean county. Defendant, through its agent, issued to her a policy for $2,000 on the building and $1,000 on its contents. At the time of the issuing of this policy, it was mortgaged to one Leslie J. Owens, trustee, in the sum of $600; defendant was notified of this-mortgage at the time of the issuance of the policy; this mortgage contained the usual clause that the mortgagor should keep the same insured for the benefit of the trustee. Having received no policy of insurance with this mortgage, the trustee, under this clause of the trust deed or mortgage, caused a policy to be issued by another company and immediately notified plaintiff of his action in that regard. Plaintiff in turn immediately notified the trustee Owens that she had caused a policy of insurance to be issued and requested him to cancel the policy he had secured. He agreed to cancel the policy which he had secured, but failed to do so. Plaintiff had no knowledge that this policy had not been canceled until after the fire. It was not issued at her request or with her knowledge. After the issuing of the policy by the defendant company to the plaintiff proceedings were commenced by Owens, the trustee, to foreclose the mortgage, and soon thereafter numerous creditors of plaintiff obtained judgments upon their claims. The policy issued by the defendant company provided that if the insured was not the sole and unconditional owner of the property then the policy should be void, it also provided that if any other insurance could be obtained upon the property without the consent of the defendant, this should also void the policy, or that in any event if any such additional insurance should be obtained, whether valid or not, that defendant should be liable only for its proportionate share of the loss of the total amount of insurance. While the foreclosure proceeding was in progress the loss occurred, and plaintiff filed a petition in bankruptcy. She, however, made no claim upon the policy issued to Owens as trustee, and has never recognized or made any claim under it. The trustee in bankruptcy prosecutes this action against defendant in the name of the plaintiff for his use for the benefit of the creditors.

Defendant filed numerous special pleas to the action, claiming that the plaintiff was not the sole and unconditional owner of the property at the time of the issuing of the policy; that foreclosure proceedings had been commenced for the purpose of foreclosing the mortgage; that prior to the happening of the loss the title to the insured property was vested in J. Y. Chisholm, trustee in bankruptcy, without the consent of the defendant; that plaintiff had failed to furnish defendants with proofs of loss; and that the policy was void by reason of the additional insurance provided without consent of defendant.

Issue was joined upon these pleas and trial had, which resulted in a judgment against defendant for $2,300, from which it appeals.

Numerous errors are assigned on this record, but we will only consider those that have been argued, as all others are, by reason of the failure to argue them waived.

The first point urged is that the policy became void by reason of the securing of additional insurance on this property. The burden of proof was upon the defendant to show this, and they have failed to sustain this plea. The record discloses that plaintiff had no knowledge of the issuance of this policy, but that immediately upon knowledge thereof directed that the same should be canceled, and relying upon the statements of Mr. Owen who had secured it, and who was an attorney at law, supposed it had been canceled. Plaintiff cannot be held responsible either for the issuing of this policy or the failure to cancel it, and aside from this, the law is well settled in this state that the mortgagee and owner of the property each have separate and distinct insurable interest in the property and either may obtain insurance upon such interest, and it does not thereby amount to double insurance. Westchester Fire Ins. Co. v. Foster, 90 Ill. 121.

The contention that the defendant company was not to be liable for any greater amount than its policy should bear the whole of the insurance, whether valid or not, cannot be sustained for the reason that that condition in their policy must be held to apply only to policies of insurance taken out by the insured or with her consent or knowledge, and under the evidence as disclosed by this record, .it is shown conclusively that the rule insisted on by defendant cannot be applied.

Upon the contention that the beginning of the foreclosure proceedings by the trustee rendered the policy void, we have examined the abstract and we find in neither abstract nor counsel’s brief, any such condition, and where counsel fail to properly abstract the record, we decline to go to the record for the purpose of hunting up questions that may be argued when the abstract fails to disclose the evidence relied on.

Upon the contention that the plaintiff had not the sole ownership of the property, the only reason for this contention in the argument is by reason of the judgments recovered against the plaintiff, and we know of no law, and have been cited to no authority by counsel that will hold that the recovery of judgments renders property on which the judgment is a lien other than in the unconditional and sole ownership of the person who holds the fee title.

Defendant also insists that the taking of the judgments was such a change of title as will defeat the policy. We do not know whether this question is argued seriously or not, but if the taking of a judgment against the insured is to invalidate the policy without an express condition in the policy that it shall do so, we are compelled to hold that the taking of a judgment does not change the title to the property.

The court did not err in refusing to permit defendant to show the assessed value of plaintiff’s property for taxation as shown by the assessment returned to the county treasurer.

We find no error in this record, the judgment is affirmed.

Áfirmed.


text:
    Wilmer G. Chapman and Chester H. Chapman by J. F. Chapman, Guardian, Appellees, v. American Surety Company of New York et al., Appellants.
    1. Injunctions—judicial proceedings. Where the appellate court remands a cause with directions, and no appeal is taken, the court to which it is remanded must obey the directions given and a court of chancery has no power or authority to restrain such court from proceeding in accordance therewith.
    2. Appeals and errors—injunction after remand. Where the appellate court determines the questions involved in an appeal and remands the cause with directions, such questions cannot be re-litigated by a bill in chancery to restrain the court, to which the cause is remanded, from proceeding in accordance with such directions.
    Appeal from the Circuit Court from Vermilion county; the Hon. William B. Scholfield, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded with directions.
    Opinion filed April 18, 1913.
    Rehearing denied May 7, 1913.

      R. R. Gilkey, O. M. Jones and W. J. Bookwalter, for appellants.
    Acton & Acton, for appellees.
   Mr. Justice Philbrick

delivered the opinion of the court.

The subject-matter involved in this controversy has been before this court on three different occasions, each time the judgment of the lower court has been reversed and the cause remanded. Upon its last appearance in this court, this court made a finding of all matters involved in the controversy, the opinion was filed March 15, 1912 [171 Ill. App. 56], and the cause remanded to the circuit court of Vermilion county with directions to proceed in accordance with the judgment of this court.

Counsel for appellees thereafter filed a bill in chancery in the circuit court of Vermilion county, praying an injunction restraining the Vermilion circuit court from carrying out the directions and mandate of this court, and the learned judge who presided over the Vermilion circuit court, upon hearing on that bill, entered a decree restraining the court over which he presided from proceeding in accordance with the mandate of this court. From that decree this appeal is prosecuted.

The action out of which this controversy arose was originally begun in the county court of Vermilion county. It was a statutory proceeding originating under the statute relating to “Guardians,” and appellants permitted that proceeding to continue until a final decree was directed by this court.

If appellants’ defense was inadequate under the statutory proceeding and it was necessary to resort to a court of chancery, they should have done so before permitting a final order and decree to have been rendered by this court. After this court finally determined the questions involved and remanded the cause to the circuit court to carry out the directions and mandate of this court, that decree and judgment determined the rights of the parties and directed what decree should he entered in the circuit court; it was final and was- not appealed from, the court to which it was remanded must obey the directions given it.

Appellants will not be permitted to relitigate those questions by a bill in chancery. While it may be that a court of chancery, had its aid been invoked in time, might have granted the relief sought by this bill, upon which question we decline to enter into any discussion, for the reason that any matter now before us is res adjudicate/, by reason of the final judgment rendered in this court. Conner v. Conner, 163 Ill. App. 439.

The learned chancellor who entered this decree had no power or authority to review or overrule or restrain by its writ of injunction the mandate of this court. The decree entered by him will be reversed and the cause remanded with directions to dismiss this bill for want of equity, at the costs of appellants.

Decree reversed and cause remanded with directions.


text:
    Mina M. Orr, Appellee, v. John W. Orr, Appellant.
    1. Fraternal benefit societies—rights in proceeds of certificate. Where the beneficiary named in a certificate of a fraternal benefit society promises to collect the money and hold it for the benefit of widow and child of the member, the widow is entitled to the entire amount when the child dies soon after the death of the member and before the beneficiary pays over the money.
    2. Contracts—consideration. A promise by the beneficiary of a fraternal benefit certificate to pay the amount of the certificate to the wife and child of the member if the wife will refrain from going to her husband, while he is seriously ill, with the request that the certificate be changed so that she and the child will derive the benefit from it, is upon sufficient consideration, when the beneficiary is the father of the member.
    Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 18, 1913.
    W. R. Jewell, Jr., and O. M. Jones, for appellant.
    Acton & Acton, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Mina M. Orr, appellee, was married to one Fred W. Orr, on June 5, 1909. Prior to the time of his marriage to appellee, Fred W. Orr held a benefit certificate in the Modern Woodmen of America in the sum of $2,000. One child, Carol W. Orr, was born of this marriage. Fred W. Orr died on August 17, 1910, intestate, at his father’s house where he had been sick for several weeks, leaving surviving him appellee and his son, Carol W. Orr. Appellee and her child were dependent upon the father and husband for their support. The father, John W. Orr, was the beneficiary named in this policy at the time of the death of Fred W. Orr, and after his death, proper proofs having been made, the amount of the policy was paid to John W. Orr;

Appellee contends that prior to the death of her husband, it had been her desire that the beneficiary in the said benefit certificate be changed so that she would become the beneficiary. After Fred W. Orr was taken sick and while at his father’s house, appellee insists that she and John W. Orr, the father, talked over and discussed the question of the change in the name of the beneficiary in this certificate from John W. Orr, the father, to appellee. That she made known to John W. Orr her intention to go to her husband while he was sick at the home of John W. Orr and have him surrender the old certificate and to cause to be issued in lieu thereof another benefit certificate in which appellee should be named as beneficiary, so that upon the death of her husband appellee would receive this money. Appellee insists that when her intention of going to her husband for this purpose was made known to John W. Orr that he demurred to her going to his son with this request; fearing that a request of this kind at a time when Fred W. Orr was sick and not expected to recover would result fatally to him; the said John W. Orr promised and agreed with appellee herein that if she would refrain from going to Fred W. Orr who was then dangerously ill, and not worry or bother him concerning the change of beneficiaries that he would hold the policy for the benefit of her and the child, and that he, fearing that if the husband was worried about a change in the beneficiary that the result to the said Fred W. Orr, who was dangerously ill and suffering from a weak heart, might hasten his death and result fatally to him; and that the said John W. Orr then and there promised and agreed to and with appellee that if she would refrain from approaching Fred W. Orr upon this subject that he would guarantee to her and see that she and her child received the benefit of this certificate; and that if his son did not recover from that sickness he would collect the same and hold it for the benefit of her and the child; and that, relying upon the promises of the said John W. Orr, she did refrain and forbear from going to her husband with a request that the beneficiary be changed.

John W. Orr collected the insurance and claims to own and hold the same for his own use and benefit. The suit was originally commenced by appellee as administratrix, before final judgment. The child died and thereupon appellee was granted leave and amended the cause of action so as to prosecute the cause in her own name. The trial below resulted in a verdict and judgment against appellant, from which he appeals.

Appellant contends this judgment is erroneous and should be reversed, insisting that the evidence does not sustain the allegations of the declaration regarding the promise alleged to have been made by appellant to appellee; also, that, conceding that the promise was made, there was no consideration therefor for the reason that she had no power even though she did request her husband to change this policy, to compel him to do so; further, that it was a mere speculation on her part whether or not he would make the change at her request; that the court erred in permitting appellee to amend and prosecute the cause in her own name.

The child died soon after the death of the father, and if appellant made a promise that he would collect the money and pay it over to appellee for the benefit of herself and child, after the death of the child appellee would be entitled to receive the entire amount.

We are satisfied from the testimony of the various witnesses that the contention of appellee that appellant made the promise alleged to have been made to her is fully sustained, and that the verdict of the jury is not contrary to the evidence and that it cannot be set aside on the ground that there is no evidence to support it.

Appellee had the right to request her husband to make the change of beneficiary in this policy before his death, and secure the benefit of the certificate for herself and child if it was possible for her to do so. The policy was taken out by the deceased before his marriage to appellee and the father then made beneficiary, after appellee and his only child became the natural objects of his bounty, it would only be natural that he should change the beneficiary during his last illness so that they would derive the benefit therefrom, unless some urgent reasons for his not so doing are shown. Appellee at least had the right to go to him and urge this, with such persuasion as she might bring to bear upon him for that purpose. And the father, knowing the condition of his son and desiring that he should recover from his illness, undoubtedly desired to do everything in his power to prevent anything which might worry or aggravate the condition of his son, and to avoid any serious consequence to him by reason of the importunities that the wife might make, promised appellee that if she would refrain from exercising her right in endeavoring to secure a change of beneficiary in this policy and would allow the policy to stand as it was that she and the child should receive the benefits of it, and that he would collect the same and pay it to her.

' It is well established that a promise or agreement carried out or completed which deprives the party of any substantial right, when done at the request of another, is a sufficient consideration to sustain the promise by the other party for the fulfillment and enforcement of the agreement then made by him, that one promise is a sufficient consideration for another, and the question of the adequacy of the consideration or the inequality of the consideration is wholly immaterial. And it is wholly immaterial on the question of the consideration for this promise whether or not appellee would have been able to have secured the change in the beneficiary which she desired, it was a valuable consideration, if by acceding to the demands or request of appellant she waived and abandoned a right she then had of endeavoring to persuade her husband to make the wife and child beneficiaries under the policy.

In determining whether there was a valuable consideration for the making of this promise by defendant it is not necessary that there should have been any pecuniary benefit to appellant, if there was a valuable consideration, however small it might have been, then it was sufficient. Parsons on Cont. (6th Ed.) 443; Page on Cont., vol. 1, sec. 274; Talbott v. Stemmons’ Ex’r, 89 Ky. 222, 5 L. R. A. 856; Hamer v. Sidway, 124 N. Y. 538, 12 L. R. A. 463 (notes).

We are of the opinion that the agreement of appellee to refrain from going to her husband in his then condition with the request which she had the right to make and which she had the right to expect would be granted her, was sufficient consideration on her part to sustain the promise of appellant that in case the husband should not recover from that sickness appellant would collect the money and pay the same over to appellee for the benefit of herself and child.

There is no error in this record. The judgment is right and will be affirmed.

Affirmed.


text:
    Etta Davis, Appellee, v. St. Louis, Springfield and Peoria Railroad Company, Appellant.
    1. Carriers—what constitutes delivery of trunk. Where plaintiff upon arrival at defendant’s depot gives the check f-or her trunk to the station agent who promises to secure a drayman to deliver it, the giving of the check to the agent does not constitute a delivery of the trunk to plaintiff.
    2. Carriers—when carrier owes duties of a warehouseman. Where plaintiff pays a charge in addition to her railroad fare for the transportation of her trunk, and on arrival at her destination gives the cheek to the station agent who promises to have the drayman deliver the trunk, and the trunk is placed in the waiting room and during the night its contents are stolen, defendant owes plaintiff the duty of a warehouseman, and not having exercised due care is liable for the loss.
    Appeal from the City Court of Litchfield; the Hon. Paul McWilliams, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 18, 1913.

      Miller & McDavid and H. C. Dillon, for appellant; George W. Burton and George W. Black, of counsel.
    T. A. Gasaway, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Appellee with her husband became passengers on November 9, 1911, on appellant’s railroad, from Carlinville, to Litchfield, Illinois, and paid appellant a charge of twenty-five cents for the transportation of a trunk in addition to the railroad fare. The trunk and a go-cart were each checked by appellant company, checks being placed thereon and duplicate checks given to appellee. The interurban car upon which they had taken passage arrived at Litchfield at about five-thirty P. M., it was getting dusk and a slight rain was falling. The trunk on being taken from the car was placed upon a truck used for that purpose. by appellant’s agent at Litchfield. Appellee surrendered the check for the go-cart and took it with her when she left the depot at Litchfield. The agent of appellant at Litchfield was acquainted with appellee and her husband, and they inquired of him where they could get a dray-man to take the trunk to their place of destination. The agent replied, “The transfer man is not here now, but just leave your check with me and I will see that a drayman brings the trunk to you.” The agent of appellant then telephoned to the hotel at Litchfield, and inquired for the owner of the transfer wagon but he was not at the hotel and appellant’s agent did not get in communication with him at that time. The trunk had in the meantime been left upon the truck at the station. The agent of appellant tried on two other occasions that evening to get in communication with the transfer man for the purpose of having him deliver the trunk, but failed to do so; and the trunk was still at the station when the agent left his work that evening.

No one was on duty at the station during the night, but it was left open for the accommodation of any passengers that might have occasion to use it; before the agent left the station he carried the trunk into the waiting room of appellant’s station where he left it, with the check still thereon. Some time during the night the trunk was stolen and taken some distance from the waiting room, broken open and most of the contents removed and taken away.

Appellee brought action before a justice of the peace for the loss of her property; the action was appealed to the city court of Litchfield, where a judgment was rendered against appellant for $150, from which it appeals.

Appellee concedes that appellant is not liable as a common carrier for the loss of the baggage, but insists that upon the arrival of the trunk at Litchfield, and a failure to remove it from the. station by appellee, appellant then owed appellee the duty of caring for the trunk as a warehouseman, and that as a warehouseman it was bound to exercise reasonable and ordinary care in providing a safe place for the trunk until it should be called for by appellee, and insists that appellant did not use such ordinary care but that by leaving the trunk in the unlocked station without any protection whatever during the night it was guilty of such negligence as to render it liable to appellee for the damages sustained.

Appellant, on the other hand, insists that by surrendering her claim check to the agent of appellant at Litchfield with the - understanding and promise from bim that he would secure a drayman and send the trunk to appellee was a complete delivery of the trunk by appellant to appellee, and that after the surrender of the check upon the promise and understanding of the agent of appellant that he would call a drayman and have it delivered that this agent then and there became the agent of appellee, that appellant’s liability then ceased and it owed appellee no further duty, and that if the station agent was guilty of any negligence thereafter in failing to take proper and due care of the trunk it was the negligence of appellee and not of appellant.

It being conceded by appellee that there is no liability of appellant as a common carrier, that question is eliminated.

Two questions are presented to this court by this appeal, one whether or not there was a delivery of the trunk to appellee. If the transaction between the agent and appellee constituted a delivery of the trunk, then appellant can be held liable only for gross negligence ; if, on the other hand, the transaction did not constitute a delivery, then the question arises as to whether or not appellant owed appellee the duties of a warehouseman and is liable to her if the loss occurred by reason of the want of ordinary care on the part of appellant.

To the contention of appellant that this trunk was actually delivered to appellee and that thereafter no liability existed we cannot accede to. The mere giving of the check to appellant’s agent cannot be held to be a delivery of the trunk. The claim check held by appellee and surrendered to appellant was a means of establishing the ownership of the trunk when the same should be claimed at the point of destination. The husband of appellee testified that after the failure of the agent of appellant to secure a drayman or transfer man for the purpose of delivering the trunk, he telephoned to him and asked him if it would be safe at the depot during the night, and the agent informed him that it would be. Appellant insists that by giving the claim check to appellant’s agent for the purpose of having the trunk sent constituted the agent from that time the servant of appellee; even if this contention is correct, the agent then held the check as the agent of appellee, he did not thereafter as her agent surrender it to appellant as the portion of the check placed on the trunk was still there at the time it was taken from the depot, and if the agent was by these acts constituted the agent of appellee, he as- her agent never called for the trunk, and it was still in appellant’s custody. In our opinion, there was no delivery of the trunk to appellee on the night of November 9 by the surrender of the claim check to the agent of appellant.

The record discloses that in addition to the railroad fare for the transportation of appellee and her husband, a charge was made for the transportation of the trunk, appellant contracted to transport the trunk as a common carrier to Litchfield and after its arrival at Litchfield, appellant owed appellee the duty of a warehouseman and was required to use ordinary care for the safe keeping of this trunk until it should within a reasonable time be called for and taken away by appellee. And the trunk having arrived at Litchfi'eld at about five-thirty in the evening, it was not an unreasonable delay to have waited until the following morning to have taken the trunk from appellant’s possession at the depot. It was appellant’s duty to see that the trunk was kept in a reasonably safe place awaiting its removal by appellee, and appellant was bound, in the exercise of this ordinary care, to use such care as a person would ordinarily use for the protection of articles of this character. To place the trunk in the waiting room of the depot with no one at or near the station to see that it would not be removed, and leave it exposed to the view and temptation of any evil minded person who might go into the depot for a lawful purpose or otherwise, was a want of ordinary care on the part of appellant.

We find nothing seriously objectionable in the arguments of counsel to the jury.

The judgment is correct and should be affirmed.

Judgment affirmed.


author: Mr. Justice Philbrick court.

text:
    Charles J. Hodalski, Appellant, v. Ralph A. Hodalski, et al., Appellees.
    1. Fraternal benefit societies—rights of beneficiary. While a beneficiary named in an insurance policy issued by a fraternal society has no vested interest prior to the death of the insured, his rights attach immediately upon the death of the insured.
    2. Fraternal benefit societies—where policy provides beneficiary may be changed. Where an insurance contract provides for the time and method in which a beneficiary may be changed, this becomes part of the contract, and unless in accordance with the terms of the contract the attempted change will not become effective.
    3. Fraternal benefit societies—where interpleader is filed to determine who are beneficiaries. Where a certificate of insurance in a fraternal society is sent in by the insured to have a change made in the beneficiaries and the change is not made before the death of insured, the society having filed a bill of interpleader requiring the claimants to assert their rights to the fund, it is held that the rules and by-laws incorporated in the certificate control and the beneficiaries under the old certificate are entitled to the fund.

      4. Equity—when equity will enforce a contract. Equity may enforce a contract or agreement where nothing remains to be done but carrying into effect an agreement already made and executed, and decree that to be done which ought to have been done.
    5. Equity—when equity does not enforce a contract. It is not the province of a court of equity to decree that to be done which ought to have been done where the claim to a right to have it done is by contract and where in order to complete the contract certain conditions must be complied with before the contract can be executed.
    Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding.
    Heard in this court at. the October term, 1912.
    Affirmed.
    Opinion filed April 18, 1913.
    Andrus & Trutter, for appellant.
    Smith & Friedmeyer, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the

court.

On the second day of July, 1910, the Modern Woodmen, a fraternal insurance society, issued a benefit certificate to Herman S. Hodalski in the sum of $3,000.

This certificate named Joseph H., Charlotte D. and Ralph A. Hodalski, the minor children of the insured, as beneficiaries in the sum of $1,000 each. In the early part of 1911, the insured was in failing health, and he became indebted to various parties. Charles J. Hodalski, a brother of the insured, agreed with the insured in his lifetime to pay certain obligations of the insured, and the insured agreed and promised to reimburse him for these payments by changing the beneficiaries in this insurance certificate and making the brother, Charles J. Hodalski, appellant herein, a beneficiary to the amount of $900.

In accordance with this arrangement, the insured in his lifetime, on a form prescribed by the by-laws of the Modern Woodmen, executed a request to that order, directing it to change the beneficiaries in said certificate, and issue a new certificate wherein appellant should be a beneficiary to the amount of $900, and each of the minor children aforesaid beneficiary to the amount of $700. This request was delivered to the clerk of the local Camp of. the Modern Woodmen at Caney, Kansas, and forwarded by him, together with the old certificate, to the head clerk for the issuance of a new certificate in accordance with that request under the rules of the society. The certificate was received by the head clerk on April 17, 1911, after the death of Herman S. Hodalski and could not be acted upon by the society during.his lifetime.

No new certificate was ever issued on this request, proofs of loss were made under the old certificate. Appellant contends he is entitled to receive from the Modern Woodmen society $900; appellees, being the three minor children named in the benefit certificate are claiming the entire amount of the insurance. The Modern Woodmen filed a bill of interpleader requiring the claimants to assert their rights to the fund. The court below entered a decree finding that appellees were entitled to the total amount of the insurance, that appellant had no interest therein. From this decree appellant prosecutes his appeal. The cause was submitted to the court below upon an agreed stipulation of facts.

It is conceded that the policy was issued and was subject to all rules, regulations and by-laws of the insurance order.

Appellant contends that the court erred in entering this decree and insists that appellees did not acquire, by reason of being named as beneficiaries in this certificate, any vested interest therein during the lifetime of the insured and that the insured had the right at any time during his lifetime to change the beneficiaries, and that exercising this right he executed the order and direction to the head clerk of the Modern Woodmen to change the beneficiaries and issue a new policy in accordance with his request and mailed the request, together with the old certificate, to the proper officers, and that everything that he could possibly have done for the purpose of affecting a change in the beneficiaries was done by him in his lifetime, and that the court should have decreed that, having done these things, and that the sole power of mere issuing the certificates being vested in the society, the court should have held that it was the duty of the society to have issued this certificate and have held that in equity the change of beneficiaries had been accomplished ■ and that appellant was entitled to the benefit thereof, the same as though a new certificate had been actually issued during the lifetime of the insured, naming appellant as a beneficiary in the amount of $900.

Appellees insist that section 47 of the by-laws of the insurance order provided what is necessary to be done, and the time and manner of doing it, in order to effect a change in the beneficiary under this certificate. Section 47 is as follows: “Change of Beneficiaries— If a member in good standing at any time desires a change in his beneficiary or beneficiaries and to obtain a new certificate, he shall pay to the Camp Clerk a fee of fifty cents and deliver to him his benefit certificate, with the surrender clause on the back thereof duly filled out and executed by him, designating therein the change desired in the beneficiary or beneficiaries. The execution of such surrender clause by the Neighbor shall be in the presence of, and attested by, his Camp Clerk. If, however, the member be so situated that he can not execute the surrender clause in the presence of the Clerk of his Camp, the signature of the member thereto may be attested by the jurat or acknowledgment of any person authorized by law tó administer oaths and take acknowledgments, and the same shall be forwarded to the Clerk of his local Camp. The local Clerk shall deposit one-half of said fee of fifty cents in the general fund of the Camp, and forward said certificate, with said surrender clause indorsed thereon, and the remaining half of said fee to the Head Clerk, who shall thereupon issue a new benefit certificate payable to the beneficiary or beneficiaries named in said surrender clause, depositing the fee of twenty-five cents in the general fund of the society. No change in the designation of beneficiary or beneficiaries shall be effective until the old certificate shall have been delivered to the Head Clerk and a new certificate issued during the lifetime of the member, and until such time the old certificate shall remain in force. The new beneficiary or beneficiaries so named shall be within the description of beneficiaries contained in Section 45 hereof. No change in the designation of the beneficiaries shall be of binding force unless made in compliance with this section. ’ ’

While it is true that the beneficiary named in an insurance policy of this character has no vested interest therein prior to the death of the insured, it is also true that the rights of the beneficiaries attach immediately upon the death of the insured. Benton v. Brotherhood of Railroad Brakemen, 146 Ill. 570.

We are of the opinion that where the contract provides for the time and method in which a beneficiary may be changed, this becomes part of the contract, and unless complied with in accordance with the terms of the contract, the attempted change will not become effective. Freund v. Freund, 218 Ill. 189; Modern Woodmen of America v. Little, 114 Iowa 109; Thomas v. Thomas, 131 N. Y. 205.

By the terms of the benefit certificate all of the rules and by-laws became part thereof and were incorporated therein as a part of the contract, and section 47, supra, must be held to control in this matter, and this section provides that no change in the designation of the beneficiary or beneficiaries shall be effective until the old certificate shall have been delivered to the head clerk and a new certificate issued during the lifetime of the member, and until that time the old certificate shall remain in force. It being admitted that the old certificate and request for a change of beneficiaries was not received until after, the death of the insured, the rights of the beneficiaries in the old certificate immediately became vested on the death of the insured. The contract of insurance regarding the change of beneficiaries was not complied with in the lifetime of the insured, and the court below was right in decreeing that appellees were entitled to this fund under the old certificate.

While it is true that the contention of appellant that equity may enforce a contract or agreement where nothing remains to be done but the carrying into effect of the agreement already made and executed and decree that to be done which ought to have been done, in our opinion it is not the province of a court of equity to decree that to be done which ought to have been done where the claim to a right to have it done is by contract and where in order to complete the contract certain conditions must be complied with before the agreement and contract can be executed when the required conditions have been complied with; equity cannot make a new contract for the parties.

There being no error in the decree of the court, its decree will be affirmed.

Affirmed.


text:
    Frances E. Arrowsmith, Appellee, v. Old Colony Life Insurance Company, Appellant.
    1. Appeals and errors—res adjudieata. Questions determined by a former appeal in a cause become res judicata upon a subsequent appeal.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 18, 1913.
    De Mange, Gillespie & De Mange, for appellant.
    Livingston & Bach, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is the second appeal of this cause to this court. On the 17th day of March, 1909, defendant issued to plaintiffs intestate its policy of insurance, previous to that time plaintiff’s intestate had been insured in the Provident Annuity Life Association under a policy of that Company issued to him September 2, 1907. The defendant Company entered into a contract with the Provident Annuity Life Association to reinsure the risks held by it; under that contract of reinsurance defendant issued to plaintiff’s intestate the policy sued on in this action.

Upon the former appeal to this court, 164 Ill. App. 44, the record disclosed that a demurrer had been sustained by the trial court to plaintiff’s declaration, this court held the declaration sufficient and not subject to demurrer; the judgment of the trial court was reversed and the cause remanded with directions to overrule the demurrer. The cause was reinstated in the trial court. Appellant then took leave to assign special causes of demurrer, and the demurrer was overruled by the trial court as directed by the judgment of this court. Appellant thereupon elected to stand by its demurrer and judgment was rendered on the demurrer, in favor of the plaintiff against appellant for the amount then due on the policy and for costs. Appellant appeals from that judgmént.

The argument on this appeal is only a reargument of the questions heretofore determined by this court. Ifc is unnecessary to repeat what was said in our former opinion.

It has been repeatedly held by this court and the Supreme Court that questions determined by a former appeal become res' adjudicata upon a second appeal. Conner v. Conner, 163 Ill. App. 439.

No question is raised on this record that was not determined on the former appeal, and we decline to enter into any further discussion of those questions. The judgment is affirmed.

Affirmed.


text:
    Ralph M. Siegel, Appellee, v. John H. Thompson, Appellant.
    1. Appeals and errors—waiver. Defendant by pleading to the declaration after his demurrer thereto is overruled .waives his objection.
    2. Pleading—when special pleas are had. Special pleas in an action for slander which attempt to answer the entire declaration but fail to answer allegations in the amended declaration are bad.
    3. Pleading—when plea of justification in action for slander demurrable. A special plea of justification in an action for slander which justifies as to the uttering of the words contained in the counts of the declaration to which it applies but denies the meaning, innuendos and inducements attributed to the words, is not demurrable.
    4. Slander.—when error to exclude evidence of truth of language used. Where good pleas of justification are filed in an action for slander, it is error to exclude evidence tending to prove the truth of the language used.

      5. Slander—what evidence of truth of words admissible. In an action for slander brought by plaintiff, a clergyman, against defendant who stated that he saw plaintiff in a beer garden, under a plea of justification it is error to exclude evidence that a circus exhibited at a park known as a German beer garden, and that beer was sold there when plaintiff does not deny that he attended the circus on the day in question.
    6. Slander—what evidence is as to res gestae. In an action for slander evidence that at the time of the uttering of the words defendant also used other words than those attributed to him is admissible as part of the res gestae when offered to show the meaning to be attributed to the alleged words and to show that the innuendos and meaning attributed to those words was not so understood by the persons who heard them.
    7. Slander—pleading. In slander, a special plea justifying as to a part of the words alleged to have been spoken and uttered, but denying the uttering and speaking of the other words alleged is not demurrable.
    8. Slander—limitations. An amendment to the declaration in slander does not state a new cause of action when it simply adds other and different words to those alleged in the original declaration to have been spoken and uttered, but alleges no damage as to the speaking of additional words charged, the entire damage alleged to have been caused being based wholly upon the words contained in the original declaration.
    Appeal from the Circuit Court of Hancock county; the Hon. Harry M. Waggoner, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed April 18, 1913.
    Rehearing denied May 16, 1913.
    Hartzell, Cavanagh & Babcock, David E. Mack and George V. Helfrich, for appellant.

      Scopield & Calipp and J. W. Williams, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Plaintiff sued defendant for slander, defendant demurred to the declaration, the demurrer was overruled and defendant answered by pleading the general issue, together with special pleas of justification and the statute of limitations. Plaintiff demurred to each of the special pleas, which was sustained by the trial court. The defendant elected to stand by his special pleas, trial was had upon the plea of general issue, and resulted in a verdict and judgment against defendant for one dollar and costs, from which he appeals.

The defendant having failed to stand by his demurrer to the declaration, and having pleaded, cannot now raise the question as to whether the court properly sustained the demurrer to the declaration; but having elected to' stand by his special pleas, to which the court sustained a demurrer, the question of the ruling of the court upon these pleas is preserved for the determination of this court. Defendant also presents the question of the sufficiency of the proof to sustain the allegations of the declaration; and also the ruling of the trial court upon the admission and rejection of evidence.

In an action for slander, where words are not actionable per se, the burden is upon the plaintiff not only to prove the uttering of the words as alleged, but also the burden of establishing the averments and innuendos as to the meaning and application of the words as charged, unless the meaning reasonably follows from the ordinary meaning of the words alleged to have' been spoken, and where the words are not actionable per se, and a certain meaning is attributed to the words by plaintiff, it is a question for the jury to determine, what meaning is to be attributed or placed upon the words alleged to have been uttered. Where the words are alleged to have been spoken concerning a minister of the Gospel, which are not actionable per se, it is necessary in order to recover to aver and prove that the words were spoken of and concerning the plaintiff in his professional capacity, and to allege and prove damages to him in regard to his profession or occupation. Starkie on Slander, 199, 200.

In speaking of and concerning a clergyman, to be actionable per se, the words must be such as to discredit or impugn his integrity, skill or capacity as a minister of the Gospel, and when the words alleged to have been spoken do not so imply they can only be made so by proper averments, inducements and innuendos and the meaning and intendment must then be proven as laid. Newell on Slander and Libel, 176, 188, 628; Herrick v. Tribune Co., 108 Ill. App. 246; Townsend on Slander and Libel, sec. 338.

In pleading justification it is only necessary for the defendant to justify as to the words alleged to have been spoken and he is not required to admit in his plea of justification the meaning, inducement or innuendos attributed to the words by plaintiff, as that becomes a question of fact for the jury to determine. Under the plea of justification if sustained by the evidence it is immaterial with what intent the words were spoken. Newell on Slander, p. 651, sec. 68; Foss v. Hildreth, 92 Mass. 76.

The original declaration charges that defendant said he had seen plaintiff in a beer garden, that plaintiff was in a beer garden, etc. The amended counts of the declaration not only reiterate the uttering of the words contained in the original counts, but add thereto the uttering and speaking of other and different words, but that they were uttered at the same time and place, etc.; but in the amended declaration no damage is alleged or averred by reason of the uttering or speaking of the additional words charged, while the damage alleged to have been caused, so far as the whole declaration is concerned, is based wholly upon the words- contained in the original declaration, and is based wholly on the alleged false statements that plaintiff was seen in a beer garden.

The second and third special pleas to which the demurrer was sustained attempt to answer the whole declaration but in fact only answer the averments of the declaration charging the speaking or uttering of the words contained in the original declaration. It neither justifies nor denies the uttering of the additional words contained in the amended declaration, these pleas were bad for the reason they attempt to answer the entire declaration and fail to do so. The fourth special plea justifies as to the uttering of the words contained in the counts of the declaration to which it applies, and denies the meaning, innuendos and inducements attributed to the words spoken’. A demurrer was sustained to this plea upon the ground that it was necessary in a plea of justification not only to admit the speaking and uttering of the words, but also the meaning, inducements and innuendos attributed thereto by the plaintiff. The fifth special plea is a justification as to a part of the words alleged have been spoken and uttered, and denies the uttering and speaking of the other words alleged to have been spoken and uttered. The sixth and eleventh special pleas are pleas of the statute of limitations; and it is insisted under these pleas that the original declaration did not state a cause of action and that the amended declaration which sets forth the uttering and speaking of the additional words was not filed within one year after the* cause of action accrued. The amended declaration does not set forth a new cause of action, it merely adds other words to the original words alleged to have been spoken of and concerning the plaintiff. The amendments to the declaration do not state a new cause of action but merely restate the cause, and add additional words as having-been then uttered and no cause of action is attempted to be based on the additional words. These pleas were subject to demurrer, and the court properly sustained the demurrer to them. The seventh special plea confines itself wholly to the first count of the amended declaration and as to that count it is a good plea. The eighth special plea confines itself and attempts only to answer the second count of the amended declaration, and is a good plea to that count. The ninth plea is not abstracted. The tenth special plea confines itself and relates wholly to the third amended count and as to that count is a good plea of justification. The court erred in sustaining the demurrers to the fourth, fifth, seventh, eighth and tenth special pleas.

"Upon the trial of the cause the court sustained objections to all offers on the part of the defendant of the truth of the words spoken, and denied to the defendant all right of proof of the truth of the words uttered. This was in accordance with the court’s rulings upon the special pleas of justification and the court having erred in sustaining the demurrer to each of these pleas, it follows that the court erred in refusing to admit this evidence. It is unnecessary for us to go into a detailed statement of all of this evidence, but it is sufficient to say that any evidence tending to prove the truth of the language used by defendant should have been admitted by the trial court, under his plea of justification, to which the demurrer should not have been sustained.

Defendant also offered evidence to explain the circumstances in connection with the alleged use of the words complained of by showing that a certain circus was being exhibited in a park called Baldwin’s Park at Quincy, Illinois, that in this park was a place known as a German beer garden, that certain parties had a license issued by the city of Quincy and sold beer at this place, and that plaintiff was there on the day of the circus. It is not denied by plaintiff that he attended the circus in Baldwin’s Park on that day, but the court refused to permit defendant to show that in Baldwin’s Park beer was sold, and that it was known as a German beer garden. We.think the court erred in sustaining objection to this evidence.

Defendant attempted to show that at the time of the alleged uttering of the words he also used other words than those attributed to him by the plaintiff for the purpose of showing or explaining the meaning to be attributed to the alleged words, and also for the purpose of showing that the innuendos and meaning attributed to those words were not so understood by the persons who heard them. Objection to this evidence was sustained. This was also error. The evidence was a part of the res gestae and should have been admitted.

Instructions number two and three given on request of plaintiff are erroneous. They do not properly state the rule applicable in actions for slander.

For the errors indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Thompson

text:
    Frank A. Cobleigh, Guardian, Defendant in Error, v. John A. Matheny, Plaintiff in Error.
    1. Guardian and ward—guardian as officer of the court. A guardian by the appointment of a court holds his office in the nature of, and as an officer of the court appointing him.
    2. Guardian and ward—right to require final accounting. Where a county court having jurisdiction appoints defendant guardian, the appointment of plaintiff as guardian by the court of another county does not transfer the right to require the filing of a final account by defendant from the court which appointed him, and no other court of concurrent jurisdiction can take jurisdiction over the estate that came to his hands as guardian, in the absence of supervising or appellate jurisdiction, unless in pursuance of some statute.
    3. Guardian and ward—where two courts attempt to assume jurisdiction. Where a person is appointed guardian by two different county courts, the one which by the domicile of the minor has exclusive jurisdiction in the first instance will retain it and such guardian will be subject to it, exclusively, until lawfully discharged therefrom.
    4. Guardian and ward—where new guardian is appointed. Where a new guardian is appointed, having been nominated by the ward who has arrived at the age of 14 years, he should apply to the court which appointed the old guardian for an order to require him to settle his account, and that court having jurisdiction over the person of the old guardian has full power to compel the settlement and delivery of the estate to the new guardian.
    o. Jurisdiction—when concurrent. In cases of concurrent jurisdiction the court that first obtains jurisdiction will have precedence.
    6. Guardian and ward—citation requiring guardian to make final account. Where a guardian has been appointed in one county and the ward moves into another county, the county court of the second! county after appointing a new guardian has no right to issue a citation requiring the old guardian to make a final account since this power is vested only with the court that originally obtained jurisdiction.
    7. Jurisdiction—to appoint guardian. Where a ward moves into another county, the probate court there, owing to the equitable nature of the proceeding, has power to appoint a new guardian for the convenience of the ward.
    Error to the Circuit Court of Fulton county; the Hon. Harry M. Waggoner, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed.
    Opinion filed May 19, 1913.
    Brown & Burnside, for plaintiff in error.
    Chiperfield & Chiperfield, for defendant in error.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This was a petition filed in the prohate court of Fulton county to the July term, 1911, by the defendant in error, as guardian of Robert Crabtree, praying that a citation be issued against the plaintiff in error for failing to pay over to the defendant in error as such guardian, the amount of money alleged to be in the possession of the plaintiff in error belonging to the ward of the defendant in error. The said probate court caused the writ to be issued and served on plaintiff in error by the sheriff of Fayette county. The plaintiff in error, attended by counsel, appeared specially before the county court of Fulton county, and filed a plea to the jurisdiction of the court over the person of the plaintiff in error and of the subject-matter, and made a motion that the court dismiss said petition for want of jurisdiction. The court sustained the motions of the plaintiff in error, and on September 4, 1911, dismissed the said petition and abated the writ. The defendant in error on September 12, prayed an appeal which was perfected to the circuit court of Fulton county. The plaintiff in error failed to appear in the circuit court, where a default was entered against him, evidence heard and at the January term, 1912, an order was entered finding that John A. Matheny had been appointed guardian of Robert Crabtree by the probate court of Fayette county more than two years prior to the filing the petition herein; that on April 1, 1910, the probate court of Fulton county appointed Frank A. Cobleigh guardian of said Robert Crabtree and Marie Crabtree upon the nomination of their mother, Effie Asbell, with the consent of said Robert Crabtree, who is a minor over the age of fourteen years, and that at . the time of such nomination said Crabtree was a resident of Fulton county; that Cobleigh had given a bond and is the legal guardian of said wards; that on July 11, 1911, notice was served on said Matheny by the sheriff of Fayette county, requiring said Matheny to account to Cobleigh for all the property and estate of said Robert Crabtree in the possession of said Matheny; that said Matheny has in his hands a large amount of property belonging to said minor; that the right of Matheny to act as guardian of said minor terminated on the appointment of said Cobleigh as such guardian; that it is the duty of said Matheny to account with said Cobleigh as guardian and orders that said Matheny present a full, true and perfect account of his actions, as guardian of said Robert Crabtree, showing the amount of money and property in his hands, and pay over the same to said Cobleigh, guardian, and that he make such account and pay over such money by the first day of the May term, 1912, of the circuit court and on failure to do so he be held in contempt and that a copy of this order be served on Matheny and continuing the cause until the May term, Matheny prosecutes this writ of error to review that order.

The contention of the plaintiff in error is that the probate court of Fulton county has no jurisdiction over the person of plaintiff in error to require a settlement of his account as guardian on the change of guardianship, for the reason that his letters of guardianship had been issued to him by the probate court of Fayette county. The findings of the order made by the circuit court of Fulton county on the appeal from the probate court of that county show that the circuit court found the facts to be that plaintiff in error was appointed guardian of Eobert Crabtree by the probáte court of Fayette county at a time when that court had jurisdiction over the ward and his estate. A guardian by the appointment of a court holds his office in the nature of, and as an officer of the court appointing him. The appointment of the defendant in error as guardian by the court of Fulton county did not transfer the right to require the filing of a final account by the guardian appointed in Fayette county from the probate court of Fayette county which had jurisdiction over plaintiff in error as guardian of the ward at the time plaintiff in error was appointed guardian, and no other court of concurrent jurisdiction could take jurisdiction over the estate that came to his hands as guardian, in the absence of supervising or appellate jurisdiction unless in pursuance of some statute. Mail v. Maxwell, 107 Ill. 554. Where a person is appointed guardian by two different county courts, the one which by the domicile of the minor has exclusive jurisdiction in the first instance and actually obtains it, will retain it and such guardian will be subject to it, exclusively until lawfully discharged therefrom. Wackerle v. People, 65 Ill. App. 423, which was reversed however on another question (168 Ill. 250); 15 Am. & Eng. Encyc. of Law, 35.

The minor having arrived at the age of fourteen years had the right, under the provisions of the statute, to nominate the guardian of his estate. When the minor had nominated the guardian of his choice and he had qualified, the new guardian should have applied to the court that had appointed the old guardian, for an order to require him to settle his account, and that court having jurisdiction over the person of the old guardian by virtue of his being an appointee and official of that court had full power to compel the settlement and delivery of the estate to the new guardian, and after settlement, discharge the old guardian from further liability. Sections 15 and 16 of the statute entitled “Guardian and Ward” provide for a final settlement by the guardian at the expiration of his trust and require the filing of an account by such guardian. Section 40 of the same act, provides that the court on the removal of a guardian and the appointment of a successor shall have power to order the delivery of the estate to the successor. It cannot be doubted but that the probate court of Fayette county had primary jurisdiction over and the right to cite plaintiff in error and compel a settlement by the old guardian and the delivery of the estate to the new guardian and it alone could discharge him. He should not be subject to the order of two courts in the same controversy. In cases of concurrent jurisdiction the court that first obtains jurisdiction will have precedence. Howell v. Moores, 127 Ill. 67.

It is also contended by plaintiff in error that the probate court of Fulton county had no right in a guardianship matter to issue a citation for a third party and require him to answer to it for the estate belonging to a ward in his possession, while the defendant in error insists that probate courts have the same powers in matters pertaining to the estates of minors that they have under section 80 of the act concerning administration of estates of deceased persons. The petition for citation does not mention the fact that the person to be cited was a guardian of Robert Crabtree by appointment of the court in Fayette county and plaintiff in error is not cited as a former guardian. The Guardianship Act does not contain any such provision as is found in the Administration Act concerning the citation, on motion of the administrator, of third parties having possession of money or effects of deceased persons. The Guardianship Act, however, does contain ample authority for the court to order guardians, that have been removed, to settle with the new guardian, but we are constrained to hold that this only applies to appointees of the court that is seeking to enforce such settlements. The fact that the probate court has certain limited chancery powers does not give that court any right to coerce parties in guardianship matters, who have not submitted themselves to the jurisdiction of such courts, when the probate court of another county already had jurisdiction over the first guardian. The findings of the court in the order brought here for review sustain the plea of plaintiff in error.

We hold that this power is vested only in the court that originally obtained jurisdiction of the estate and appointed the guardian whom it is sought to coerce. On the removal of the ward and his mother to Fulton county and his selection of a guardian by the minor on his arriving at the age of fourteen years, the question as to whether the appointment should be made by the court that originally had jurisdiction over the estate of the ward, or by the probate court of the county to which the residence of the ward had been changed-does not appear to have been directly passed on by the courts of appeal in this state, and the general rule is that the court that originally had jurisdiction in the estate will continue to hold it (15 Am. & Eng. Encyc. of Law, 35; Woerner on Guardianship, p. 93), but this is a question ordinarily of statutory provision. We hold, however, that because of the equitable nature of the proceeding and for the convenience of the ward the court in the county of his residence had the right to appoint a new guardian. The delay of the old guardian, after notice of such appointment, in not settling his accounts and procuring an order from the court of Fayette county to deliver the estate to the new guardian for such a period of time after notice of the selection of the new guardian seems to be inexcusable, yet, the court of Fulton county erred in issuing a citation to Fayette county citing the appointee of the court of Fayette county to answer to the Fulton county court, for failure to settle with the appointee of the Fulton county court. The order' is therefore reversed and the citation quashed.

Reversed.