text:
    Marsina Van Cleave, Appellant, v. City of Chicago, Appellee.
    Gen. No. 15,954.
    1. Verdicts—when duty of court to set aside. Where the verdict Is manifestly and palpably against the weight of the evidence, no matter whether it resulted from prejudice or other improper motive, or from an honest, but misguided, judgment of the jury, it is the duty of the trial court to set aside the verdict and grant a new trial; and in case the lower court should refuse to do so, on appeal it is the duty of the Appellate Court to reverse the judgment in such case and to remand the cause.
    2. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence where not clearly and manifestly so.
    3. Instructions—when care required „of minor need not be limited. If the declaration does not charge that the plaintiff was a minor, or that she was wanting in capacity, judgment or discretion, and if no instruction is offered by the plaintiff limiting the degree of care required of her, such plaintiff is properly to be presumed as sui juris.

      4. Negligence—when instruction excluding evidence of defects proper. In an action for personal injuries sustained on a public sidewalk evidence that other defects than that made the basis of the charge of negligence is properly excluded from the consideration of the jury for purposes other than as tending to establish notice.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. E. M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 25, 1911.
    Rehearing denied and modified opinion filed November 8, 1911.
    Statement by the Court. This is an action on the case for an alleged personal injury to appellant, Marsina Yan Cleave, by reason of a fall on one of appellee’s public sidewalks on State street, June 1, 1902. The negligence charged in the declaration is that appellee “suffered and permitted divers of the boards, planks and timbers wherewith said sidewalk was made to be and remain rotten, loose, broken and unfastened.” In a jury trial a verdict and judgment were entered against appellant, who has properly preserved her exceptions in her appeal to this court.
    Michael Lyons, for appellant; Simon P. Gary, of counsel.
    Edward J. Brundage and John R. Caverly, for appellee ; Edward C. Fitch, of counsel.
   Mr. Justice Duncan

delivered the opinion of the court.

Appellant testified, in substance, that she was married in June, 1906, and that her former name was Marsina Hopinger; that on June 1, 1902, while she was walking north on State street near Forty-third street with Miss Rose Lupe, she fell down on her left side by reason of a loose board in the sidewalk; that her left foot went down into the walk and that her elbow was skinned and her side and back were hurt, and was “kind of bruised a little on her hip and knee;” that she got up and went on to church and her elbow bothered her, but she did hot pay much attention to it; that some days the bruise and pains in her elbow and side would bother her and on others it would not, and gradually left in about a week or ten days; that about two or three weeks afterward she got a pain in the calf of her leg, and about a month after the pain in the leg she got one in her knee, which lasted about a month, coming and going during that time; that after that she got the pain in her hip and real hard in January, 1903; that in August and September, 1902, she went to a dispensary for treatment, and that Dr. Brislen was called to treat her in the following January; that later she was treated by other physicians and was operated on by Dr. Mueller in April, 1903; that she went to school regularly before the injury, but did not do so afterwards, and had to quit altogether in January after her injuries on account of the severe pain. She also testified that she was in good health before that fall and had never had a fall before. Her mother testified that appellant never told her, when she fell, and that she knew nothing about it. Her companion, Miss Lupe, corroborated appellant in the fact that she fell on the walk; but she does not testify to seeing any wounds or bruises or scratches, although she testified that appellant showed her her elbow on the way to church after she fell. The remainder of her evidence by her witnesses is to the effect that she was a strong, healthy girl before the injury, and that she became thin, sick and weak and suffered greatly from a diseased hip and limb and from hysteria, as a result thereof. Some of her physicians testify to a considerable shortening of her limb, and that all these conditions might have been caused by an injury. For the defendant, there were quite a number of witnesses, neighbors and schoolmates of appellant, who testified, in substance, that she was a delicate, thin and sickly girl before she fell on the walk. One of these witnesses testified that she saw appellant before June 1, 1902, have one of her “fainting spells,” that appellant attributed to the diseased condition of her hip, which she claims resulted from her fall on the walk. Her teacher, Mrs'. Keating, testified for defendant from her school register kept by her that appellant was one of her pupils in 1901 and 1902, and that she was not absent from school a single day in June, 1902. It appears also that in 1906 appellant received an insurance certificate for $1,000 in the order of the Maccabees, in her application for which she stated that she was then in good health, contrary to her evidence.in this case, and that she failed to state in her examination at that time anything about any of her ailments and sufferings that she now complains of, although asked by the physician representing the Maccabees concerning past ailments and injuries. Dr. Blackmarr testified that he took an X-Ray photograph of plaintiff’s hip in April, 1903, at the request of herself and her physician, Dr. Hagedorn, and that he found her hip in a normal condition; that there was no effusion in the joint or other condition of the hip indicating inflammation or other diseased condition. Dr. McCleary testified that he was called to treat appellant in 1906 or 1907, and that he attended her in child-birth; that he examined her pelvis and hips because she told him she had received ah injury; that he found the pelvis and hips normal and noticed nothing wrong with her walk.

The evidence in the record, as thus disclosed, is in hopeless conflict upon the question of whether or not the serious injuries to the hip and spine, causing hysteria, swooning spells, and painful and diseased conditions of the hip and back, were caused by her fall on the sidewalk, as insisted by her, or from other causes not connected with any injury by such fall. The jury have evidently found that, if appellant did fall on the walk in question, her injuries were very slight, if any, and in no way responsible for the serious injuries for which she has claimed damages in this suit. She and all her witnesses are contradicted upon matters very material to the issues. She is the only person who testifies to her receiving any injury at all by reason of her fall. That she did receive a fall on the walk at the time in question, she has proved by her own testimony and that of her companion, Miss Lupe, now Mrs. Reicha. She has also introduced evidence showing that the walk was out of repair, and that the defendant was negligent, as charged. "Under the impeaching evidence that was directed by the defendant at the testimony of the appellant, and her conduct following her fall, she being the only witness, who testified that she was injured by reason of her fall on the walk in question, we cannot say that the jury were no.t warranted in their finding that her injury was of no consequence and in no way connected with, or responsible for, the pain and suffering which followed for months and years afterwards, according to her evidence. Where the verdict is manifestly and palpably against the weight of the evidence, no matter whether it resulted from prejudice or other improper motive, or from an honest, but misguided, judgment of the jury, it is the duty of the trial court to set aside the verdict and grant a new trial; and in case the lower court should refuse to do so, on appeal it would be the duty of this court to reverse the judgment in such case and to remand the cause. It is only in such cases, however, that this court is authorized by law to reverse a judgment based on the verdict of a jury; and we do not think we are warranted in interfering with the judgment in this case, by holding that the verdict is manifestly and palpably against the weight of the evidence.

Appellant was shown to be over fourteen years of age on the date of her alleged injury on the walk in question. No evidence was offered to prove that she had not sufficient capacity and understanding to comprehend and discover danger and avoid it, as well as would an ordinarily prudent adult. The declaration contains the allegation that appellant, “then and there, was using due and reasonable care for her personal safety,” and does not charge that she was a minor, nor that she was wanting in capacity, judgment or discretion. No instruction was offered by appellant’s counsel limiting the degree of care required of her by reference to her age, experience, intelligence or capacity. She was, therefore, properly presumed to be sui juris by the court at the age of fourteen years and upwards, and it was not necessary that instructions for appellee, as to the degree of care required of her, should be limited “to that degree of care that .one of her age, experience, intelligence and capacity would ordinarily exercise under similar circumstances.” Nagel v. A. V. R. R. Co., 88 Pa. 35; Frauenthal v. G. Co., 67 Mo. App. 1; Tucker v. N. Y. C. & H. R. R. R. Co., 124 N. Y. 308; Railway Co. v. Eininger, 114 Ill. 79.

The court did not commit error by stating to the jury in appellee’s twelfth instruction that “the evidence, if any, of the existence of defects in the sidewalk other than that claimed as the proximate cause of the injury cannot be considered by you as to whether or not the City was negligent.” Evidence of other defects in the near vicinity of the defect complained of is admissible to prove notice of defects, but not for the purpose of proving negligence of the defendant. City of Taylorville v. Stafford, 196 Ill. 288.

The objections of appellant to appellee’s instructions are untenable. Finding no reversible error in the record, the judgment of the court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Brown

license: Public Domain

text:
    Marion Belle Barber, Appellee, v. Travelers’ Insurance Company, Appellant. Bert S. Barber, Appellee, v. Travelers’ Insurance Company, Appellant.
    Gen. Nos. 15,693—15,694.
    1. Insurance—when double indemnity recoverable under accident policy. Where a policy provides for payment of double indemnity if injuries are sustained while riding as a passenger in any railway passenger car, double indemnity is properly recovered where the insured while a passenger accidentally fell from a moving car, although not attempting to enter or leave the same, and in consequence met his death on the road-bed.
    2. Continuances—when refusal to grant, error. If a material witness is absent without fault upon the part of the party applying for a continuance, such party having exercised due diligence, and if the absence of such witness is attended with peculiar eireunostances, it is an abuse of discretion, which will effect a reversal, to refuse to grant a continuance.
    Appeals from the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed November 2, 1911.
    Rehearing denied November 16, 1911.
    Frank M. Cox and R. J. Fellingham, for appellant.
    Worth E. Caylor, for appellees; William G. Wise, of counsel.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

These causes were consolidated for hearing in the court below and in this court. Upon the same evidence (except in purely formal matters concerning the separate policies involved) a finding was made by the Municipal Court of Chicago, sitting without a jury, in favor of Marion Belle Barber against the Travelers Insurance Company, and a judgment entered on the finding for $5,270 and costs, and a like finding and judgment for the same amount against the same company in favor of Bert S. Barber.

Marion Belle Barber and Bert S. Barber were the children of Lyman W. Barber. Lyman W. Barber on July 10, 1907, took out two “accident” policies in the defendant company. They differed only in number and in the name of the beneficiary. In one the beneficiary named was Marion Belle Barber, in the other, Bert S. Barber. The terms of the policies, affecting these causes, follow:

“The Travelers Insurance Company of Hartford, Connecticut, does hereby insure Lyman W. Barber against bodily injuries effected directly and independently of all other causes through external, violent and accidental means as specified in the following schedule:
The principal sum of this Policy in the first year is $2500, with 5% increase annually for ten years amounts to $3750.
*******
SCHEDULE OE INDEMNITIES.
Part A. Single Indemnity—Death—Dismemberment and Loss of Sight.
If any one of the following disabilities shall result from such injuries alone within ninety days from the date of the accident, the Company will pay in hen of other indemnity.
For Loss of Life other than specified in parts D. and E.
The Principal Sum.
*******
In the event of death the principal sum insured shall be paid to (Bert S. Barber in one policy—Marion Belle Barber in the other), The Beneficiary if surviving, otherwise to the Executors, Administrators or Assigns of the Insured.
*******
The amount to be paid for claims under Parts A. and B. shall be double the sum specified in this Schedule if such injuries are sustained while riding as a passenger and being in or upon any railway passenger car using steam, cable or electricity as a motive power,
*******
but any accident or injury, fatal or otherwise, sustained while getting on or off or being upon the step or steps of any railway or street railway car shall be covered only by single indemnity.
*******
This insurance shall hot cover disappearance or suicide, sane or insane, nor shall it cover accident, injury, death, loss of limb or sight or disability resulting wholly or partly, directly or indirectly, from intoxication or while intoxicated, * * * or from voluntary exposure to unnecessary danger * * * Nor (except as incident to the occupation of railway employes insured as such) shall this insurance cover accidents, injuries, death, loss of limb or sight, or disability, resulting directly or indirectly from entering or trying to enter or leave a moving conveyance using steam as a motive power, (except cable and electric street cars), or happening while being in any part thereof not provided for occupation by passengers or while being on a railway bridge or road-bed.
*******
That all of the warranties following made by the insured upon acceptance of this policy are true, viz:
*******
M. My habits of life are correct and temperate.
*******
11. The warranties and provisions abové are a part of the contract which is made subject thereto, and to the payment of the premium of Twelve and 50/100 Dollars.
The term of this Policy is Twelve months, beginning at twelve o’clock noon, standard time, on the 10th day of July, 1907, and ending at the same hour.” * * *

There were the usual provisions in the policies as to notice and proofs of loss, but no question is made that all proper steps were taken by the plaintiffs thereunder and they do not, therefore, require transcription. The contentions in these causes are directly on the merits of the claims and not on technicalities.

Lyman W. Barber was last seen alive, so far as the evidence shows, on the front platform of the rear car of a train of the South Side Elevated Railroad in Chicago as it was leaving the Van Burén and Dear-born street station at 3:29 a. m., January 5, 1908, on a south-bound trip. His body was found at about seven o’clock that morning on the south-bound track of the Elevated Railroad where it runs through the station at 26th street. A coroner’s jury found that he came to his death on January 5, 1908, “from shock and injuries received by falling from the platform of the South Side Elevated R. R. Co. at 26th street, coming in contact with the Sprague (or third) rail, and then being run over by a train consisting of motor car No. 72 and coaches 376 and 323 belonging to the South Side Elevated R. R. Co. and south bound on their tracks at the said 26th street station, on the early morning of Jan. 5, 1908. But from the testimony presented we, the jury, are unable to determine how or in what manner deceased met with said fall.”

The respective beneficiaries under the policies sued the Travelers Insurance Company on them in the Municipal Court in a case of the first class, alleging in the first count of their respective declarations that Lyman W. Barber “was killed by receiving bodily injuries effected on the said 5th day of January, 1908, directly and independently of all other causes through external, violent and accidental means,” by reason of which the defendant became liable to pay to the' plaintiff upon said policy the sum of $2,500.

In the second count they alleged that the said Barber “was killed while riding as a passenger and being in or upon a railway passenger car using electricity as a motive power by receiving bodily injuries effected on said 5th day of January, A. D. 1908, directly and independently of all other causes through external, violent and accidental means,” by reason of which the defendant became liable to pay the plaintiff upon said policy the sum of $5,000.

The Insurance Company in each case filed six pleas to the declaration. On these pleas, which concluded to the country (inartificially, it appears to us, in the case of all but the first), issue was directly joined by similiters and the causes submitted to the court without a jury.

The first plea was the general issue; the second alleged a provision of the policy that it should not cover death resulting wholly, partially, directly or indirectly, from intoxication, and averred that the death of the assured resulted from intoxication, whereby plaintiff was barred from maintaining an action.

The third plea alleged a provision in the policy that it should not cover death resulting while the assured was intoxicated, and averred that the assured was killed while intoxicated.

'The fourth plea recited the provision of the policy that it should not cover suicide, sane or insane, and averred that the death of the assured was caused by the assured wilfully and intentionally throwing himself upon the track of a railway and in front of a railway train operated by electricity, with the intent to destroy his life.

The fifth plea alleged the provision of the policy that it should not cover the death of the assured on a railway roadbed, and averred that the assured was killed while on a railway roadbed.

The sixth plea was made up of the recital that said policy provided that it should not cover the death of the assured resulting from voluntary exposure to unnecessary danger, and the allegation that the death of the assured resulted from voluntary exposure to unnecessary danger.

In the trial below and in this court the theory advanced by the plaintiffs as to the death of the insured was that he fell from the front or rear platform of the rear car of the train on which he was last seen alive, which he boarded at the Van Burén street station at half past three in the morning of January 5th; that he so fell as the train was leaving the 26th street station—the destination of the assured presumably being his home further south—that he fell on the deadly third rail and died instantly, or, if not, was killed by being afterward struck by the next southbound train. This, it is claimed, created a liability of the company for the double indemnity of $5,000.

The defendant’s contentions (the defense of suicide and of unnecessary exposure to danger being abandoned) were: First, that the plaintiffs could not recover at all because the assured came to his death “while intoxicated,” and indeed “wholly or partly, directly or indirectly” as the result of intoxication. Secondly, that as the. evidence showed that the insured met his death upon a railway roadbed, the burden was upon the plaintiffs to prove at least that he came upon that roadbed otherwise than voluntarily, and such proof, it is insisted, was not made. Thirdly, that there was no sufficient evidence in any event to warrant the double indémnity. There was a failure of proof, it is contended, that the deceased was killed “while riding as a passenger and being in or upon a railway passenger car,” etc.

These last two grounds of defense we do not purpose to discuss further than to say that the arguments for the appellant have not convinced us that there was not sufficient competent and material circumstantial evidence brought forward to warrant a jury in finding for the plaintiffs on both the contentions indicated. If the assured, while a passenger, accidentally fell from a moving car (although not attempting to enter or leave the same), and in consequence met his death on the roadbed, we think that he was within the double indemnity clauses of the policies. No literalness of construction which would negative this is admissible.

And without expressing any opinion of our own on the conclusiveness of the proof in the trial below that the death of the assured happened in the manner and from the cause indicated, we say that there was, in our opinion, evidence so sufficiently tending to prove it, that we should not feel justified in disturbing the finding and judgment of the court based on it, were there no other factors in the situation to be considered. We refrain from the further discussion of this aspect of the cause, inasmuch as the disposition we feel obliged to make of it may require the matters indicated to be again submitted to a judge or jury. For, on the first ground of defense we cannot feel satisfied that the defendant had a fair trial, or that under the circumstances the finding and judgment can be sustained. The argument of the plaintiffs that there was no evidence to prove that the assured was not killed “while intoxicated” (as to the provision of the policy concerning which another question involving literalness of construction might indeed arise), and especially no proof that the death of the assured was due “wholly, partly, directly or indirectly, to intoxication,” convinces us as little as the argument of the defendant that there was no evidence that the death occurred while the assured was a passenger on a railway car.

The reasons for not discussing, in this opinion, the evidence in detail concerning the claimed intoxication of the assured on the night in question, are even • stronger than those which dissuade us from elaborating on the other aspects of the matter. We have not overlooked the direct testimony of the companions of the assured, on which the plaintiffs so confidently rely; but, again, we must give to circumstantial evidence its due weight. It seems to us idle to say that there is nothing tending to prove intoxication in the evidence concerning the actions of the assured from his entrance into a, dram-shop at six o’clock in the evening of January 4th, to the time that at half past three in the morning, at the end of a two mile drive in a cab away from the direction of his home, he came to the doors of a down town building, with the apparent intention of climbing the stairs to his office on the tenth floor, and was persuaded by his companion to abandon the undertaking and go home. Some of the actions and some of the conditions described in that evidence point so clearly to intoxication, greatly increasing the danger of riding on the platform of an elevated train, that we cannot conscientiously say that, in our opinion, it is overborne or even offset by the evidence of those who were with him or saw him during that night, and whose opinion of his sobriety was called out to aid the plaintiffs.

We should be more reluctant, however, to send this cause back to be retried—less reluctant to accept as final the finding of the learned judge below—were we not of the opinion also that the defendant was placed at a great disadvantage in the trial of this cause by the absence of the witness, Mildred Shippy, who could not have failed to be of material assistance to the court in the proper determination of the issue of the assured’s alleged intoxication. This absence was not in any respect the fault of the defendant, who had used all due diligence to secure her attendance. It was accompanied by circumstances concerning connections and communications between her and a friend of the assured which could not fail to strike any court as remarkable. We think the case should, on the application of the defendant, have been continued for the testimony of this witness. We do not think it was within the proper limits of the trial judge’s discretion to refuse the application, and we feel that the cause should not have proceeded to judgment until the much longer time which would be afforded by a continuance had been granted to find and bring this missing witness into court or before a magistrate who might take her deposition. And most of the sane considerations, forceful in a less’ degree only because she had not been actually subpoenaed by the' defendant, are involved in the absence of another material witness, Irma Palmer.

We think the judgments in each case should be reversed and the cause remanded for a new trial. It is so ordered.

Reversed cmd remcmded.


text:
    International Packing Company, Plaintiff in Error, v. David K. Tone et al., Defendants in Error.
    Gen. No. 15,792.
    . 1. Assumpsit—when peremptory instruction proper. If the evidence for the plaintiff does not establish joint liability upon the part of the defendants a peremptory instruction in favor of both defendants is proper notwithstanding no plea denying joint liability has been interposed.
    2. Assumpsit—when joint liability not established. Where, after collection, a judgment at law is reversed, no joint liability to return the proceeds of the collection exists against the party who received the same and his attorney who was not an assignee to whom a part thereof was disbursed*
    3. Assumpsit—when money not tortiously obtained. Held, that money was not wrongfully or tortiously obtained by a lawyer who in the absence of any stay order or supersedeas enforces a judgment of a court of competent jurisdiction in favor of a client against the judgment debtor, even though there may be then pending a writ of error which afterwards eventuates in a reversal.
    Assumpsit. Error to Superior Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed November 2, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    F. J. Canty, R. J. Folonie and E. E. Gray, for plaintiff in error.
    Thomas J. Symmes, for defendants in error; David K. Tone, of counsel.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

A judgment of nil capiat and for costs was, March 2,1909, rendered by the Superior Court of Cook county against the plaintiff, International Packing Company (who sued for the use of the London Guarantee and Accident Company, Limited), in favor of the defendants David K. Tone, Morse Ives, H. M. Ashton and John Cichowiez.

The suit was in assumpsit and based on the following facts, which appeared in the evidence:

May 2, 1900, “H. M. Ashton” and “Ives & Tone,” as plaintiff’s attorneys, filed a praecipe to the summons in the office of the clerk of the Superior Court of Cook county, in behalf of John Cichowicz, by which praecipe suit was begun by said John Cichowicz against the International Pacldng Company in trespass on the case, the damages being laid at $10,000. Through the same attorneys, June 21, 1900, Cichowicz filed a declaration in the said suit, which showed his cause of action to be a fall into a mass of hot water, occasioned, as the declaration alleged, by the negligence of the International Packing Company. On the first call of the case, July 10, 1900, the defendant did not appear and default was entered against it and a judgment rendered for $5,000 and costs in favor of Cichowicz. Afterward, however, the defendant was let in to plead on the payment of $100 to the plaintiff’s attorney and $250 to the plaintiff, to be deducted from any recovery, if one was had, the judgment to stand as security. The cause was submitted to a jury, which found the International Packing Company guilty and assessed the plaintiff’s damages at $3,000. February 14,1902, a judgment order on this verdict was entered. It provided that the judgment of July 10, 1900, for $5,000 should stand, but be satisfied in full of record upon the payment of $2,650. From this judgment order an appeal seems to have been prayed but not perfected.

March 20, 1902, an execution requiring the collection of $2,650 damages and $11.35 costs was issued and given to the sheriff, who proceeded under it to levy on certain real estate in Cook county belonging to the International Packing Company, to advertise the same for sale, and eventually to sell the same. It was sold for $2,990 to one Charles F. Wenham on July 15,1902. The sheriff made due return of the writ of execution as satisfied by this sale. In the return he recited the sale, and that after deducting his fees, amounting to $60.67, lie had paid the plaintiff’s attorney the balance, $2,929.33. On the execution offered in evidence in the case at bar, appeared the receipt of “David K. Tone, Attorney for the Plaintiff,” of $2,935.83, “in full satisfaction of the within execution and advance costs, this 15th day of July, 1902,” and the receipt of O. F. Wenham, dated July 23,1902, for the certificate of sale of the premises sold.

Mr. Tone admitted, in testifying in the case at bar, the receipt by him of the money thus receipted for on the execution, and also the receipt of the $100 attorney’s fees, and $250 for the plaintiff, which, by order of court, were paid on the opening of the default judgment for pleading.

Mr. Tone testified also that he was present at the execution sale.

July 28, 1902, the International Packing Company as plaintiff in error sued out from this court a writ of error directed to the Superior Court in review of the proceedings in said cause of Ciehowicz against the International Packing Company.

On March 19,1903, this court reversed the judgment of the Superior Court without remanding the cause, finding that- the plaintiff Ciehowicz had voluntarily assumed the risk of the danger through which he was injured. This judgment of the Appellate Court the Supreme Court, on further appeal, affirmed. On the reversal of the judgment of the Superior Court a motion was made in the Superior Court to set aside the execution sale, which was denied. (This action of the Superior Court was, the reports show, reversed by this court and on further appeal affirmed by the Supreme Court.) On this denial the International Packing Company, through attorneys at law representing it, redeemed from the execution sale the premises sold by paying to the sheriff $3,171.05. It procured the money from The London Guarantee & Accident Company, (Limited), which had issued an employer’s liability insurance policy to the Packing Company.

In- February, 1905, the International Packing Company brought suit against David K. Tone and Morse Ives (who in 1900, at the time of the commencement of the suit for Cichowicz and for some undisclosed length of time thereafter were members of the law firm of Ives & Tone), Henry M. Ashton and John Cichowicz.

There was confusion in the pleadings which might lead to the conclusion that the cause had been tried only on the common counts, but as no question is raised as to the formal matters and as the ground of the plaintiff’s claim is stated in the first count of its amended declaration, we briefly abstract its allegations, which are that the suit above described was begun by Chicowicz through Ives, Tone and Ashton as his lawyers; that it proceeded to judgment and execution sale as above set forth; that Wenham, who purchased the real estate of the International Packing Company at that sale, did so at the instance and request of Tone, Ashton and Ives; that on or about June 15, 1900, John Cichowicz assigned one-half of any recovery that he might make in his action to Ives, Tone and Ashton; that on February 14, 1902, he assigned the judgment to the defendant Tone for the use of himself and the other defendants; that Tone took said judgment with full knowledge of all the facts alleged in this declaration; that the judgment against the International Packing Company was reversed as before described; that by virtue of the sale of real estate under the execution, $2,990 was paid to Tone for himself and the other defendants; that at the time the said Tone received said $2,990 he knew that a writ of error had been sued out and was pending in the Appellate Court, and that under the laws of the land said judgment of the Superior Court must he reversed; that all the defendants knew that said writ was sued out; that the proceedings on the writ of error cost more than $2,000; that the International Packing Company had assigned its right of action against the defendants to the London Guarantee and Accident Company, (Liraited); that the International Packing Company had duly redeemed the premises sold by paying to the sheriff $3,169.40, and that the defendants were liable to the plaintiff for it.

The only pleading to the declaration (which also contained the common counts) except an undisposed of demurrer to this special count, was the general issue.

At the trial the only matters not before set forth proven in support of the declaration were, (a) that there was a contract signed by Cichowicz and Ashton before the suit of Cichowicz against the Packing Company was begun, by which it was agreed that Ashton was to have a contingent interest of one-half the recovery in case recovery was had; (b) that at the time the judgment by default for $5,000 was obtained by Cichowicz the following paper was signed and delivered by him:

“July 10, 1900.
Whereas, I am now indebted to Morse Ives and David K. Tone for legal services in the sum of one thousand ($1,000), now to secure the payment of said sum I hereby authorize them to collect a judgment for $5,000 recovered by me against the International Packing Company July 10, 1900, in the Superior Court of Cook County, Illinois, said Ives & Tone to retain said $1,000 out of said judgment when collected, and to pay the balance to me or to my attorney, H. M. Ashton.
John Cichowicz.”

(c) that at some time, at Ashton’s office, Cichowicz received $950 on account of his suit.

Some stress being laid in the arguments in this court on an alleged assignment of the judgment by Cichowicz to the other defendants, or some of them, it may be well to note that we find nothing in the evidence sufficient to establish such an assignment, nor that Ives or Tone had any contract with Cichowicz for a contingent fee. The testimony of Tone is that there was no contract to which he was a party prior to the default. The testimony of Ashton is explicit that the contingent arrangement was between him and Cichowicz, and that there was a further general agreement, participated in by Cichowicz, that if Ives and Tone helped in the law suit their fees would be taken care of by Ashton. '

Cichowicz, who cannot read English, and says he does not know what was in any paper he signed, did indeed testify that he made a contract “printed on a paper” that he “would get half of the money that would be recovered,” and when he was asked by counsel for the plaintiff, “Who did you make that contract with?” answered “The lawyers.” The question followed, “Who were they?” and he answered “Ash-ton and Tone.” A legal representative of the Guarantee Company testified also that when he was preparing the motion to set aside the' execution sale, he went to Tone’s office and that he asked (apparently incidentally) the question of Mr. Tone—Tone being alone —“Do you folks have an assignment of the judgment?” to which Tone answered, “We have a half interest in it.”

But the language of Cichowicz in his testimony and of Tone in his conversation is not in its nature sufficient to establish the existence of an assignment of the judgment, or against the more definite statement of Ashton and Tone, a contingent agreement between Cichowicz and any other of the defendants than Ash-ton. However, we do not deem it highly material, in view of the doctrine laid down by our Supreme Court in Elliot v. Whipple, 1 Scammon 517.

At the close of the plaintiff’s testimony, on a motion to that effect by the defendants, the court instructed the jury to find the issues for the defendants, and a verdict was returned in accordance with said instruction. From the judgment rendered on that verdict this writ of error has been prosecuted.

We think the court below was right in excluding the testimony and peremptorily instructing the jury. No other course was proper, unless there was evidence tending to show a joint liability of all the parties defendant. They were sued jointly in assumpsit and a verdict or judgment against one or more could not be given unless the plaintiff dismissed against the others. Gould v. Sternburg, 69 Ill. 531; Kingsland v. Koeppe, 137 Ill. 344; Merrifield v. Cottage Piano Co., 238 Ill. 526. Nor, since the plaintiff’s evidence shows the whole situation, is this altered by the fact that no one of the parties has put his joint liability in issue by a special plea to that effect. Imperial Hotel Company v. Claflin Co., 175 Ill. 119. Therefore, if we assume the liability of Cichowicz, which is not challenged by the appeal and the argument before us, it does not follow that a judgment could be rendered in this case against him and the others jointly. There was no evidence offered in the causé except on the part of the plaintiff. If that did not tend to show a joint liability on the part of all the defendants, even though it did tend to show several and different liabilities, the ruling of the lower court was, under the authority of the cases we have cited, correct.

We do not think that any joint liability was shown or that any evidence tending to show it was introduced.

If the action rests on the general ground that the defendants are in possession of money had and received for the use of the plaintiff, which seems to us in effect its gist, each of the defendants, Tone, Ives and Ashton, would be liable, if at all, only for the amount received by Jiim out of the money secured by the execution sale under the judgment. This liability would differ as to amount, to say nothing of the time and circumstances under which it arose. Cichowicz’s liability would be also on a different basis and for a different amount—we may assume for the whole, in the absence of controlling circumstances to the contrary.

To this proposition the plaintiff in error opposes the theory that the defendants were all principals and all jointly liable, because they all had a hand in securing money compulsorily from the plaintiff in error—money which it should not have been obliged to pay and which reviewing courts afterwards decided it did not owe.

But we think counsel ignore a distinction vital to the argument. If money is obtained by fraud, extortion or other wrongful compulsion from one, it does not lie in the mouth of any one of persons combining to secure it in this method to claim that he is not liable jointly with the others in solido in an action to recover it. But we do not conceive it to be the law that money is wrongfully or tortiously received by a lawyer who, in the absence of any stay order or supersedeas, enforces a judgment of a court of competent jurisdiction in favor of his client against the judgment debtor, even though there may be then pending a' writ of error (which is held to be a new suit) in a reviewing court, which afterwards eventuates in a reversal. The plaintiff’s declaration asserts that Tone knew on July 15, 1902, “that under the laws of the land "the judgment of the Superior Court must be reversed,” and it is on this theory in the last analysis that the allegation is made that the money was wrongfully collected by him. We do not think that even “counsel learned in the law” can be presumed to actually know with certainty that a judgment of the Superior Court in a personal injury case, obtained after trial and verdict, must and will be reversed on the ground that the plaintiff assumed the risk, or, that if he does not in fact know, the maxim “Ignorantia legis neminem ex-cusat” can be stretched so as to make it constructively a tortious act for him to pursue for his client an unstayed and unsuspended final order of that court. Such a doctrine would be a confusing and dangerous one. Nor is it the law. For illustrations of cases based upon the contrary principle, we might cite, among a multitude, Fidelity Mutual Life Ins. Co. v. Clark, 203 U. S. 64, and McDonald v. Napier, 14 Georgia 89. We shall not discuss the cases cited by appellant in support of the doctrine he urges further than to say that we do not think they overlook or ignore the distinction we make.

It is claimed that there is no evidence that Tone has ever paid over to his client any of the money he receipted for on the execution sale. If it be material, we think the contrary is sufficiently shown by the testimony of Cichowicz—meagre as that is.

The judgment of the Superior Court is affirmed.

Affirmed.


text:
    West Publishing Company, Plaintiff in Error, v. Ansel M. Lasley, Defendant in Error.
    Gen. No. 15,807.
    1. Statute of Limitations—when new promise revives debt. “An unqualified admission that the debt was due and unpaid, accompanied by nothing said or done to rehut the presumption of a promise to pay it,” revives such debt.
    2. Evidence—when secondary, as to contents of letter should be received. If the non-production of an original letter is fully accounted for by competent evidence, the best evidence of its contents which is available should be admitted.
    Error to the Municipal Court of Chicago; the Hon. Habbt Olson, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed November 2, 1911.
    Lewis Edward Dickinson, for plaintiff in error.
    Frank A. Lasley, for defendant in error.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

This is a writ, of error to the Municipal Court of Chicago, which on June 18, 1909, entered a judgment of nil capiat and for costs against the plaintiff, which had sued the defendant in assumpsit on a promissory note of the defendant given for some law books theretofore sold and delivered by it to the defendant.

The note was for $320.80. It was dated December 7, 1896, and was payable in instalments, the last becoming due October 1, 1897. The defendant claimed the benefit of the Statute of Limitations of ten years, the suit at bar not having been begun until April 25, 1908.

The plaintiff set up a new promise implied by an acknowledgment of the debt in a letter of October 4, 1898. This letter, claimed to be in evidence, was, in our opinion, “an unqualified admission that the debt was due and unpaid, accompanied by nothing said or done to rebut the presumption of a promise to pay it,” which in Illinois is sufficient to revive the debt against the Statute of Limitations and make a new departure. Keener v. Crull, 19 Ill. 189; Carroll v. Forsyth, 69 Ill. 127; Coulson v. Hartz, 47 Ill. App. 20; Nonotuck Silk Company v. Pritzker, 143 Ill. App. 644.

We gather from the somewhat remarkably constructed “Statement of Facts” which is a part of the transcript of the record before us, that this was also the opinion of the trial judge, but that he held that various attempts of the plaintiff to prove the contents of said letter were failures and that the said letter could not be considered to be in evidence. The defendant having then demurred to all the plaintiff’s evidence, the court sustained the demurrers and gave judgment of nil capiat against plaintiff and in favor of defendant for costs.

It is rather hard to determine the exact scope of the court’s rulings on this subject in the various piecemeal hearings in which the case was tried. But the net result to our minds is, that the objections made to the secondary evidence of the contents of the letter in question were hypercritical. We think the nonproduction of the original letter was fully accounted for by competent evidence, and that the best secondary evidence of its contents available, which is all that was required, was produced. We also think that the secondary evidence was more than usually satisfactory. The genuineness of the signature to the original was explicitly sworn to by one who had seen that signature and had brought himself within the rule which allowed him to testify to it. The contents of it were sworn to by him as identical with those of a copy produced; and, moreover, the evidence offered was sufficient, in our opinion (despite the objections about the statement of the witness being a conclusion), to warrant the finding that defendant had, after the reception of the letter by the plaintiff, acknowledged implicitly—and just as satisfactorily as though he had done1 it expressly— having written it.

We think that the evidence certified to by the court below as offered and, implicitly if not explicitly, as all that was offered by either party, was sufficient to have secured a judgment for the plaintiff at the hands of the Municipal Court, which heard the cause without a jury. As we have not been favored by the defendant in error with a brief, we do not know, farther than the so-called “Statement of Facts” reveals it, what is the basis of a diverse view.

We shall reverse the judgment of the Municipal Court. But because of . the difficulty of determining exactly what the Municipal Court had erroneously excluded from the evidence when the demurrer to the evidence was sustained, and what the rights of defendant may be to a further hearing of evidence on his part, we do not—as we are inclined to do—give the judgment here which, in our opinion, the Municipal Court should have entered and would have entered had it taken a correct view of the law as to secondary evidence, namely, a judgment for the principal of the note of December 7, 1896, $320.80, with interest at six per cent, from December 7, 1896, to the date of. the judgment,—but in place thereof remand the case to the Municipal Court for further proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    Luke Nevin, Plaintiff in Error, v. William Grace Company, Defendant in Error.
    Gen. No. 15,829.
    1. Appeals and errors—when assignment waived. An assignment of error not argued is waived.
    2. "Master and servant—when doctrine of fellow-servant hars recovery. If the injury result from a defective board in a scaffold a recovery will not be allowed if the selection of boards for such scaffold was a detail of the work of the plaintiff and his fellow-servants—the construction of scaffolds being a work voluntarily assumed by the gang with which the plaintiff was associated as a privilege for their own protection and pursuant to an existing custom.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed November 2, 1911.
    Jacob C. Le Bosky, for plaintiff in error.
    F. J. Canty, R. J. Folonie and J. C. M. Clow, for defendant in error.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

This is a writ of error to the Superior Court of Cook county to reverse a judgment of nil capiat and for costs against the plaintiff.

The judgment was rendered on the verdict of a jury. Errors are assigned and argued in this court on various instructions given by the trial judge at the request of the defendant and on his action in denying the motion for a new trial, made on the ground that the verdict was against the ¡weight of the evidence.

The action was one for personal injuries to the plaintiff caused by the alleged negligence of the defendant corporation. The plaintiff was a structural iron worker. At the time of the accident he was in the employ of the defendant as one of a body or crew of like workers engaged in building for the defendant the steel structure of the present court house of Cook county. He was a riveter, and at the time of the accident was engaged in his work, sitting for that purpose on a scaffold constructed thus: From the floor girders of the eleventh floor were suspended by ropes two joists, called needle beams (four by sixes), each twenty-five feet long and running parallel to each other about ten feet apart. Three planks, each two inches thick, twelve inches wide and from twelve to fourteen feet long, were placed transversely across these needle beams at intervals of four or five feet. Transversely across these, and thus running in the same direction as the needle beams, were placed two other short planks. All these planks over the needle beams were laid loose and unfastened.

Besides the plaintiff there were four other men in the immediate riveting gang in which he was working', but only two were on the scaffold at the time. The one other than the plaintiff appears to have stepped from one of the upper short planks on to the plank on which Kevin was sitting, and it broke, precipitating both men in a fall which broke the plaintiff’s ankle. He sued the defendant corporation, alleging in the first count of his declaration that the defendant employed the plaintiff and was “possessed of and caused to be used” divers scaffolding work, and ordered and directed the plaintiff to work thereon; that the defendant knew that the scaffolding work was weak and unsafe, or should have known it, and that the plaintiff did not know the same. The second count makes substantially the same charges, averring that it was the duty of the defendant to furnish the plaintiff a reasonably safe place to work, but that in violation of said duty the defendant “supplied and furnished to the plaintiff and caused him to use the scaffolding along and above the tenth floor of said building, ’ ’ which was made of such unsafe, unfit and weak material that the plaintiff, not knowing (while the defendant did know) of said conditions, fell and was injured on account of the breaking of a board in said scaffolding.

To this declaration the defendant pleaded the general issue. The cause was submitted to a jury. After the case of the plaintiff was closed the defendant moved for a peremptory instruction in its favor. The motion was denied. The defendant offered no evidence: Five instructions were given to the jury at the request of plaintiff and twenty at the request of the defendant. Many of those tendered by the defendant and given are vigorously attacked by the plaintiff.

The plaintiff’s counsel during the arguments and after the opening argument for the plaintiff and the argument for the defendant, tendered one further instruction, which the court refused, marking it “Received too late.” Although this refusal is assigned for error, no argument is made on it, and it may be considered as waived.

The jury found a verdict of not guilty, and after a motion for a new trial had been made, argued and denied, the judgment which this writ of error seeks to reverse was rendered.

We do not think any good purpose would be served by taking up one by one the instructions that are complained of and criticising or approving them. The case is one which turns on broader principles than the mere phraseology of certain of the instructions which counsel for the plaintiff objects to.

The board which broke was defective for the purposes of a scaffold, in that it had a knot in it which the evidence would seem to show was hidden by a covering of mortar or cement which had hardened thereon.

Because of the undeniable general principle that a master must use reasonable care to furnish a reasonably safe place and reasonably safe appliances to his workmen, and, further, must use reasonable care in inspection from time to time to see that the place and appliances have not become unsafe, the plaintiff charges this unsound hoard in the scaffold to the negligence of the master, and claims damages for his injury. When to that the defendant rejoins that it had nothing more to do with the selection and inspection of the material which went into the scaffold than that it was selected by the very gang of its employes of which the plaintiff was one, from a pile of boards incidentally lying in the building under construction, and that therefore it should not be charged with the unsoundness of the particular hoard that broke, which it neither selected nor inspected, save through the plaintiff’s immediate fellow-servants, the plaintiff replies that under the law of Illinois, laid down in such cases as Leonard v. Kinnare, 174 Ill. 532, and Smith v. Schillinger, 225 Ill. 77, the duty of the master in selection and inspection cannot be so delegated as, by the “fellow-servant” or “common employment” doctrine, to relieve him from liability; that if it is delegated, the delegate who makes the selection and inspection becomes a vice principal, for whose acts or defaults the principal, whose primary and personal duty he has assumed, is liable. This also is undoubtedly the general rule. But to this there are exceptions.

It is not applicable where the preparation of the defective appliance by the fellow-servants and the selection of the material from which it is prepared are mere details of the work for which those servants are employed. In such a case the appliance is not furnished by the master, nor is the duty delegated. It is assumed spontaneously and voluntarily by the particular set or gang of workmen who, in the pursuance of their specialty in construction (as in the present case), or in other work, find it necessary to furnish themselves with the assistance of the temporary appliance.

Van Den Heuvel v. National Furnace Company, 84 Wis. 636, and the cases therein cited, illustrates this rule very well, and we deem it applicable to the case at bar.

Indeed there seems to be more than usual justification for the application of the fellow-servant rule where, as in this case, the furnishing and construction of the appliance seems to be made by the particular class or gang of workmen a peculiar privilege or safeguard of their employment.

The preference and determination of the structural iron workers to furnish their own scaffolds and “permit no one else to build them” appears in the evidence. It adds force at least to the further evidence that in the case at bar it was the voluntary choice for a detail of their work on the part of a particular gang of workmen co-operating on a job immediately at hand, rather than the supply of an appliance by the employer, which resulted in the defective scaffold.

The attempt to disassociate the plaintiff from the riveting gang, so far as the construction and use of the scaffold is concerned, is not successful. It does not appear that he was present when the boards were selected by his co-workmen, but it does appear plainly enough that he had a hand in taking apart and putting together the loosely made scaffold several times. This raises, under the circumstances, a very serious question whether assumption of the risk in any event could not be attributed to him, independently of the other considerations that we have noted.

But as his duty was to observe and not to inspect, and the exact condition of the board is none too clearly indicated in the evidence, we do not place our decision on that ground.

We hold, however, that the evidence shows clearly that the defendant neither furnished nor constructed the scaffold, nor had a duty to do so, nor delegated any such supposed duty to a vice principal. It hired the plaintiff, with others, to work together in a certain limited field of the construction. These men voluntarily, and in accordance with a custom and rule which undoubtedly in the long run works well for them, choose to regard the construction of the swinging platforms on which they work as a detail of the work to be left in their hands. Because they did not exercise sufficient care in the selection of boards incidentally within their reach, but not specifically furnished for that purpose, one of their immediate fellow-servants was hurt. We do not think, under the law of liability of employers for personal injuries, as it existed when this accident occurred and will exist for some time to come, until the Compensation Bill, so-called, of 1911, becomes effective, any other verdict than that returned by the jury in this case could, under the evidence, have been allowed to stand.

This being so, we must conclude that the issues in the case were rightly determined, and that the judgment should not be disturbed, even if there were erroneous propositions in some of the instructions abstractly and individually considered.

The judgment of the Superior Court therefore is affirmed.

Affirmed.


text:
    New Amsterdam Casualty Company, Appellant, v. William E. Saloman, Appellee.
    Gen. No. 15,842.
    1. Pleading—what recoverable under common counts. If the amounts paid as premiums upon indemnity policies are predicated upon estimates of wages paid, if the wages exceed the estimates an additional sum provided for in such event in the policy may he recovered under the common counts.
    2. Evidence—when competency under common counts waived. To admit a document without objecting to its competency under the common counts is to waive the right to interpose such an objection to other like documents.
    3. Insurance—burden to establish claim of additional premiums under indemnity policies. When once policies are issued and delivered at an estimated and agreed premium the burden of establishing a right to additional compensation is upon the company,

      Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed November 2, 1911.
    Bulkley, Gray & More, for appellant; C. Paul Tall-MADGE, of counsel.
    Whitman & Horner, for appellee; Lloyd C. Whitman, of counsel.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

At the close of the plaintiff’s evidence in this case in the Municipal Court, the judge, at the request of the defendant, excluded it all from the jury and directed the jury to return a verdict for the defendant. When this had been done a judgment of nil capiat and for costs was rendered against the plaintiff. From this judgment (the case being one of the first class) the defendant appealed, and the appeal is now before us. It raises, of course, primarily only the question whether in the evidence offered for the plaintiff there was anything tending to show that the plaintiff had a legal claim of any amount against the defendant, recoverable under its declaration. The claim set up was for a balance, alleged by the plaintiff to be due to it, of premiums accruing on ten policies of insurance which it had issued to the defendant at different dates.

The declaration contained only the common money counts. The defendant pleaded to it the general issue. .

The policies were in pairs. One of each of the pairs insured the defendant “Against loss from Common Law or Statutory Liability for damages on account of bodily injuries, fatal or non-fatal, accidentally suffered within the period of this policy by any employe of the assured while on duty at the place and in the occupations mentioned in the schedule” (there-after in the policy given) “in and during- the continuance of the work described in the said schedule, and against the expense of defending any suit for such damages.”

The other policy of the pair, running for the same length of time, insured the defendant “against loss from Common Law or Statutory Liability for damages on account of bodily injuries, fatal or not fatal, accidentally suffered within the period of this policy by any person or persons not employed by the assured at or about any of the assured described in the schedule in and during the continuance of the work described in the said schedule and against the expense of defending any suit for such damages.”

The first pair of these policies, which we will refer to as Nos. 1 and 2, were in force from November 1, 1901, to November 1, 1902. The second pair—Nos. 3 and 4—from November 1, 1902, to July 16, 1903; Nos. 5 and 6 ran from July 16, 1903, to October 8, 1903; Nos. 7 and 8 from October 8, 1903, to October 8, 1904; and Nos. 9 and 10 from October 8, 1904, to February 28, 1905.

In No. 1 the essential parts of the schedule (furnished by the defendant to the plaintiff company as an application, and then copied and attached to the policy) are as follows :

“schedule.
1. Name of assured—Wm. E. Salomon & Co.
2. Address of assured—119 LaSalle Street, Chicago, Cook County, Illinois.
3. The assured is copartnership.
4. The place or places where work is to be carried on, the kind of work at each such place, the number of employes and the estimated pay roll at each such place are as follows:
Estimated Estimated Premium Amount Place Kind of work, average Pay Roll rate per of where number of for Policy $100 of Premium, work is employes. Term. wages. to be done.
Carpenters, general construction of Varies. $2000.00 3% _ $60.00 Chicago, wooden build- ' Cook ings and gen- County, eral repair Illinois work.
(No wrecking)
**************
10. The estimated pay .roll covers the wages of all persons employed by the assured at the places mentioned in Statement No. 4 including executive officers, office employes, drivers and drivers’ helpers, except as follows:
Executive officers and office men.
**************
15. The expenditure for wages for the last calendar year (ended December 31, 1909) was $2000.
16. The minimum premium for this Policy is $30.00.”

In the policy are these further provisions among others:

Special Agreements.
A. The Company’s liability for an accident resulting in injuries to or in the death of one person, is limited to Five Thousand Dollars $5,000, and subject to the same limit for each person the total liability for any one accident resulting in injuries to or in the death of several persons, is limited to Ten Thousand Dollars.
B. This policy does not cover loss from liability for injuries as aforesaid to or caused by any person unless his wages are included in the estimated wages hereinafter set forth and he is on duty at the time of the accident in an occupation hereinafter described at the place or places mentioned in the schedule.
**************
C. The premium is based on the compensation to employes to be expended by the assured during the period of this policy. If the compensation actually expended exceeds the sum stated in the schedule hereinafter given, the assured shall pay the additional premium earned, if less than the sum stated the Company will return to the assured the unearned premium pro rata, but the Company shall first retain not less than the minimum premium stated in said schedule, it being understood and agreed that this sum shall be the minimum earned premium under this policy.
D. This policy may be cancelled by the Company at any time by notice in writing to the assured stating specifically when the cancellation shall be effective. It may also be cancelled by the assured by like notice in writing to the Company, provided the premium shall have been paid. In either case the earned premium shall be computed on the compensation to employes for the year as indicated by the actual expenditure for such compensation during the time the Policy shall have been in force.
jf, 4b 4f. 4b 4E, 4b 4b 4b* 4b -V- 4b 4b
B. The Company shall have the right and opportunity at all reasonable times to examine the books of the assured so far as they relate to the compensation paid to his employes and also to inspect the plant, works, machinery and appliances used in his business. The assured shall, if requested, furnish the Company with a written statement of the amount of such compensation during any part of the policy period under oath if required.”

In policy No. 2 were the same schedule and provisions, with, of course, the change in the description of the liability insured against before indicated, and in the premium, which is a lower rate on the $100 of wages paid. In the other policies the limit of liability varies somewhat from Nos. 1 and 2, but the provisions above set forth were the same.

In the schedule annexed to these other policies the description of the “Kind of work,” “The estimated pay roll for the Policy term,” “The Bate,” “The amount of premium” and the “Place where work is to be done” also varies somewhat from the statements of the schedule in Nos. 1 and 2.

It is only necessary, in the view that we take of this case, to recite these parts of the schedule in Nos. 5 and 6.

In No. 5 they are as follows:

Estimated Estimated Premium Amount Places Kind of work, average Pay Roll Rate of where number of for Policy per $100 Premium work is employes. Term of wages. to be done.
Carpentry, Chicago
Masonry, $2000.00 $4.80 $96.00 Ills.
Painting, and vi-
Plastering, cinity
in connec- including
tion with carpen-
making slight ter work
repairs at shop
damaged at rear
building (not of 1240
erecting build- Michigan
ing). Ave.,
Chicago,
Ill.

And in No. 6 the same, except as to the “Premium Bate” and “Amount of Premium,” which are $1.60 and $32, respectively.

Differences had arisen between the company and the assured during the time these policies were in force, as to the number of employes coming under the de.scription in the schedules and the amount of the premiums which should be consequently paid.

It is not necessary for us to describe the form which these disputes took nor their development until the cancellation of the last policies on February 28, 1905.

It is sufficient to say that this suit was brought as their culmination, and the ground of it is the claim that the representations and- estimates made in the applications and reports which were the basis of the schedules were incorrect and below the actual fact, and that under the terms of the policies heretofore given more than the “estimated” amounts (which were the amounts actually paid) should have been paid, and consequently are how due to the New Amsterdam Company.

One defense made by the appellee is that if there is anything due under this contention, it cannot be recovered under the common counts.

We shall not lengthen this opinion by a discussion of this point. We have considered it and the authorities cited by counsel for the respective parties, and are of opinion that if the facts are as claimed by the plaintiff, the amount due is recoverable under the common counts. The question of the admissibility in evidence of the policies themselves under the common counts was waived by the defendant’s allowing the admission of some of them without objection.

We have examined the other contentions of the parties with the result that the primary one reduces it*self in its lowest terms to the question on whom the burden of proof in this case rested, after it had once become established that at any given time the pay roll of the assured ior persons employed in the general occupations covered by the policies was greater and the number of those persons larger than the estimate or report made to the company by the assured in the application for policies covering that time.

To illustrate—the plaintiff would contend, for example, referring to policies 5 and 6, that under such a condition, the defendant to avoid liability for additional premiums must at least prove that the carpenters, masons, painters and plasterers, who the proof might show were employed during the time involved, were not so employed “in making repairs to damaged buildings,” but “in erecting buildings,” or were not employed “in Chicago and vicinity.”

It ought, however, to be noted perhaps that the plaintiff also argues that it is at least doubtful whether under the language of the policy which describes the insurance as in consideration “of the statements contained in the schedule attached hereto and hereby made a part hereof, which statements the assured makes on.the acceptance of this policy and war-' rants to be true,” the defendant would be permitted to prove these things, even were it able to do so. To do so would be to contradict the warranties, it is suggested, and to be guilty of an unallowable stultification. We do not think it necessary herein to enter into any discussion of the respective natures of “warranties” and “representations” in insurance law or their relative effects, for on a study and comparison of the various clauses of the policy, our construction of the provision that “This policy does not cover loss from liability for injuries to or caused by any person unless * * * he is on duty at the time of the accident in an occupation hereinafter- described at the place or places mentioned in the schedule,” renders such a discussion irrelevant. The schedule must be construed with reference to the rest of the policy and the other provisions of the policy with reference to the schedule.

The insurance only covers the persons employed where the schedule represents them, and the fact that there are other persons of the same trade employed otherwise or elsewhere by the assured, even if that fact seems contradicted by the schedule taken by itself, does not, in our opinion, show a breach of either a warranty or of a material representation.

The defendant, on the other hand, contends that it is for the plaintiff to make out its case in full when it claims additional premiums, and that it must show that the additional “compensation actually expended” exceeding “the sum stated in-the schedule hereafter given,” was paid for persons so employed that they come within the class whose actions or defaults are insured against.

The trial judge below seems to have held this view, and we agree with him. When once the policies were issued and delivered at an estimated and agreed premium, the burden of establishing a right to additional compensation was on the plaintiff. To establish it, the company must prove that it has been rendered liable to risk greater than that the application and schedule contemplated. To do this it must prove, not only that there were more, persons than the schedule stated (measured by the pay roll) employed in any specified occupation, but also that they were employed under conditions which rendered the company concerned with that employment.

But to justify the instructed verdict and judgment in this case, something more is necessary. It must appear that there was no evidence tending to show that there were, as measured by the pay roll, more persons thus employed during any policy period, than had been stated in the schedule of the policy in force during that period.

That the contrary of this is true is the second contention of the appellant, and we think it is well founded.

As to policies 5 and 6, the plaintiff produced and put in evidence a document on the bill-heads of the defendant, which its manager testified the defendant, not long after the expiration of the policies, handed him “in response to my request that he would furnish us with the amount paid out on that policy,” and “for nothing else” than “for the purpose of fixing the premiums.” It was “handed or sent,” the witness testified, “For the purpose of furnishing us a statement of the pay roll as expended by them during the term of the policy and as covered by the policy.” This document shows for “carpenters,” compensation paid during the policy period greater by more than $2700 than the estimated amount of the “carpenters” pay roll in the “schedule.” It shows also compensation paid to “painters” greater by more than $2200 than the estimated schedule pay roll. If this is to he considered as an admission of the increased amount of the pay roll to carpenters and painters covered by the policy, it is equivalent, with the legitimate inferences to be drawn from it, to an admission of an increased number of carpenters and painters so covered, and of the rightfulness of the claim of the plaintiff to the corresponding increase of premiums. It was in such a view quite sufficient to go to the jury as evidence for the plaintiff, and the case should not have been taken away from them.

We think it must be considered such an admission. The defendant says there is no evidence and no presumption that Mr. Saloman in giving the manager of the company this document did so with the intention of including in the statement only the wages paid to those carpenters and painters covered by the policies. This suggestion is without force. We hold, as did the court below, that no employes except those employed as and where the schedule in the policy specifies, are covered. Mr. Saloman of all persons must be presumed to have known the law on that point then, as his contention in this litigation shows he knows it now. Every legitimate inference and intendment is that when asked to furnish the statement of the. amount of compensation to persons covered by the policy for the purpose of adjusting premiums, he would not furnish a statement of a larger sum than that so legally covered.

As this statement of the evidence concerning policies 5 and 6 must dispose of this cause here, by an order reversing and remanding, we forbear any further discussion of it than to express the hope that if there be another trial of the case no obstructions will be placed in the way of an ascertainment of the truth concerning the number of persons and their compensation employed by the defendant during any policy period and purporting to be covered by a policy. The object of a trial on the facts is to ascertain the facts. That, and not any effort to conceal them, ought to be the end to which all efforts of counsel should tend. No competent evidence throwing light on the actual number and compensation of persons employed and covered by the policies should be excluded in this case. We deem it one in which the rulings of the trial court should be liberal in this regard.

The judgment of the Municipal Court is reversed ánd the cause remanded to the Municipal Court of Chicago.

jReversed and remanded.


author: Mr. Justice Smith

text:
    Henry Payette, Defendant in Error, v. Leopold Zeman, Plaintiff in Error.
    Gen. No. 15,706.

      Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed October 5, 1911.
    Rehearing denied October 23, 1911.
    Kretzinger, Rooney & Kretzinger and E. C. Mapledoram, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

This suit was brought by the defendant in error to recover from plaintiff in error the balance claimed to be due on architect’s certificates for carpenter work on, a building at 2956 South State street. The cause was submitted to a jury, who returned a verdict for the plaintiff, and on a remittitur a judgment was entered for $191.99 against the defendant, here the plaintiff in error.

It is urged that the verdict was clearly and manifestly against the preponderance of the evidence. There was a sharp conflict in the testimony, but on a consideration of the same we are unable to agree with the plaintiff in error.

Other errors are assigned, but those well taken are unimportant and of such technical nature that we do not think the merits of the case were affected by said errors.

There appearing no reversible error, the judgment is affirmed.

Affirmed.


text:
    Grossfeld & Roe Company, Plaintiff in Error, v. Anna Gross, trading and sued as Ignatius Gross, Defendant in Error.
    Gen. No. 15,785.
    1. Contracts—when custom, does not affect. A custom to avail must be shown to be binding upon the party sought to be charged thereby.
    2. New trial—when newly discovered evidence does not require. Newly discovered evidence which could make no difference in the ultimate finding of the court does not require the granting of a new trial.
    Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed November 2, 1911.
    Rehearing denied November 16, 1911.
    Grossberg, Shaeffer & Kompel, for plaintiff in error.

      Whitman & Horner, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

In August or September, 1907, the plaintiff in error, plaintiff below, purchased from the defendant in error, defendant below, two hundred cases of Conserva, a canned tomato paste, at seven cents a pound. The goods were shipped to plaintiff, as nearly as we can discover by the record, about October 1907, received and paid for in full. The plaintiff claimed that the goods were guaranteed to be first-class, but on the receipt of same it was discovered some cans were swollen, known in the trade as “swells”; and shortly after they began selling them to the trade many cans were returned because they contained sand. Mr. Roe, who had charge of the matter on behalf of plaintiff, testified that he notified the defendant “that the goods were no good,” and Mr. Cross, who represented the defendant in the transaction, replied that “he will be over there in my place of business and will look them up.” There was no record of any kind as to this correspondence and none could be found, and Mr. Cross denied same. In April, 1908, Mr. Cross called upon the plaintiff, for the purpose, as he claimed, of selling more goods, and then learned from Mr. Roe, for the first time, that plaintiff complained of the “swells” in the shipment in question. The two men examined the goods in the presence of Mr. Glacer, the plaintiff’s foreman. Mr. Roe testified, in effect, that it was then agreed that the goods, a lot of about 125 cases, were to be returned and the plaintiff given credit therefor. This testimony was corroborated in a measure by Mr, Clacer. Mr. Cross testified no such conversation took place, but it was agreed, in effect, that the imperfect goods, about 15 or 20 cases, be returned and he would, forward other goods in exchange. About a month after this conversation plaintiff returned to the defendant 100 cases. The defendant immediately complained of this action and wrote plaintiff in part as follows: “Upon examination found them to be perfect, but in order to satisfy you we decided to exchange them and shipped you last Saturday by Erie R. R. Co. 100 cases Conserva choice stock in every respect, and hope same will be satisfactory to you.” The plaintiff was notified by the railway company of the receipt of the goods and after about a month the plaintiff notified the railway company that it would refuse to accept same. The defendant refused to have goods again returned and claimed they had nothing further to do with them, as they were the plaintiff’s. Thereupon the plaintiff brought this suit for $700, the amount paid defendant for 100 cases. The cause was submitted to the court, who found for the defendant, and the plaintiff comes here on writ of error.

In our opinion the determination of the case depends entirely upon the view the court takes of the evidence as to the special contract entered into by Mr. Boe and Mr. Gross in April, 1908. When this Conserva was purchased the .market price of Conserva was seven cents per pound. In the disturbed financial period in 1907-1908, the price declined, and in April, 1908, it was three cents per pound. It is obvious that the plaintiff would desire a credit on a return of the goods, and equally certain that the defendant would desire an exchange. The trial court evidently found that the plaintiff failed to prove by a preponderance of the evidence that the special contract entered into by Mr. Boe and Mr. Gross pertaining to the imperfect goods was as claimed by the plaintiff. It seems strange that the plaintiff should return an even 100 cases, for it appears to us that the weight of the evidence is clearly in favor of the defendant that only from 15 to 20, or 25, at the most, cases of Conserva were imperfect. It devolved upon the plaintiff to prove by a preponderance of the evidence the contract whereby they had the right to return the said 100 cases of Conserva and receive credit therefor. The court found against the plaintiff and on the record it is for us a very difficult question; but the trial court having the opportunity to see and hear the witnesses, we are not convinced that we should hold that his finding was clearly and manifestly against the weight of the evidence.

On the exchange shipment of the 100 cases of Conserva the defendant also forwarded, without any order so to do, one box of macaroni, because of which Mr. Roe said he was suspicious and refused to take out anything.

On the oral argument the learned counsel for the plaintiff seemed confident that his client might safely rest its case on the theory that it was not bound tó accept the return shipment of 100 cases because it was included with the box of macaroni, which admittedly was not ordered by it. If it be conceded that the abstract proposition of law relied upon by counsel is correct, it is not believed to be applicable to the facts in this case. If the position of plaintiff be correct on the special contract alleged by it, plaintiff was right in refusing to accept any of the goods—the Conserva as well as the macaroni. The court having found against plaintiff on this question of fact, it followed that the goods returned in exchange were bound to be received by plaintiff, if severable from the macaroni, which they were, and provided, of course, same were merchantable.

The attempted proof by the defendant of a custom pertaining to the return of “swells”, we do not deem of any importance, because, the evidence failing to show a custom binding on the defendant, the court, it is assumed, gave it no consideration. Merchants Despatch Transportation Co. v. Joesting et al., 89 Ill. 152; Pratt v. Davis, 224 Ill. 300.

On the motion for a new trial the plaintiff presented the affidavit of Mr. Roe in reference to an examination of the Conserva, made after the trial by a committee on an agreement between, the parties. The committee reported none were “swells” and all were merchantable. They also reported that the black Conserva, of which there were 39 cases, was of an inferior quality. Mr. Gross had testified that the goods were to be merchantable and that he had given no guaranty “except as to swells.” .If the court, as he evidently did, believed said testimony, the newly discovered evidence, including the finding that all the goods were merchantable, could make no difference in the ultimate finding of the court. It may be further said that the affidavit failed to come within the well settled rules pertaining to newly discovered evidence.

The judgment is affirmed.

Affirmed. .