author: Moran J.

text:
    Hobart C. Taylor, a Minor, etc., v. Oscar Field.

      Eridence — Admissibility of Former Decree — Contract of Loan — Refusal to Complete — Action for Damages.

    1. A former decree may be given in evidence to establish a fact which it determined when such fact comes in controversy between the same parties in another suit.
    2. Such decree to be so admissible need not find the disputed fact in terms. It is enough that by necessary implication it must have been in issue and must necessarily have been decided in order to support the decree.
    3. In an action to recover damages for a refusal by the defendant to complete a contract for a loan of money to him, it is held: That a decree in a former suit between the same parties and others involved the question whether certain sums were advances on said loan; and that said decree is admissible in evidence.
    [Opinion filed April 26, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Rollin S. Williamson, Judge, presiding.
    Statement by Moran, J. Action was brought by appellant, in the court below to recover damages from appellee for refusing and neglecting to complete a certain contract of loan.
    In April, 1883, appellee agreed with S. W. Millard, representing appellant’s guardian, to borrow from appellant $20,000 for three years at 6 per cent, interest, and to secure the same on certain real estate in the City of Chicago. The papers were to be dated on the 15th day of April, 1882. Appellee was to furnish full abstracts showing good title. On the day when the agreement for the loan was made there was advanced to appellee §3,000, and he gave his note for that amount to the mother of appellant, to be held, as appellant claims, until the loan papers were completed and the loan closed. On June 2d, appellee executed a trust deed to secure the loan, and the same was placed on record, but the loan was not closed, as there had been some delay in furnishing abstracts, and paying off taxes and so forth. There was advanced to appellee on that date, §1,000, and a note was made therefor, payable to appellant’s mother, A. O. Collins. The §3,000 and §1,000 were paid to appellee by the guardian’s checks, and the mother of appellant, said A. O. Collins, was guardian. At this time the Connecticut Mutual Life Insurance Company held a mortgage for §15,000 on the property of appellee, on which appellant was to be secured, and the money agreed to be loaned by appellant was to be used in part to discharge the prior mortgage. Various circumstances occurred to delay the completion of the loan, but finally the approval of the loan and security by the Probate Court was obtained, and the attorney of appellee and Millard, who was acting for the guardian of appellant, met on the 2d and 3d of November to close the loan. Monroe, the attorney for appellee, and Millard, then disagreed as to whether the first coupon interest note' on the §20,000 loan should be deducted from the amount to be paid to appellee. Millard insisted on the coupon being deducted, and Monroe, it is claimed by appellant, then terminated the interview by declaring that the whole thing was ended forever. About December 20th Millard, acting for appellant, took §16,000 in legal tender notes, and went to appellee’s place of business and tendered the money to him and demanded that he close the loan. Appellee referred him to his attorney, Monroe, and Millard thereupon went to Monroe’s office, and there tendered the money to him and asked him to close the loan and deliver the securities. Monroe said he could do nothing about it. On January 6, 1883, the Connecticut Mutual Life Insurance Company filed a bill in the Federal Court against Field, Millard, appellant Taylor and others, to foreclose its mortgage. A cross-bill was filed by appellant, and, on hearing, a decree was entered, which, among other things, established a lien in favor of appellant for §4,697, being the money advanced on the loan to appellee with interest, subject to the prior lien of complainant, and ordered that the property be sold and both liens discharged. The money which appellee agreed to take was attempted to be loaned after appellee refused to complete the transaction, but appellant did not succeed in loaning it for some time.
    The case was heard by the court and a jury, and on the trial appellant offered the record of the case in the United States Court in evidence, and it was objected to as irrelevant by appellee’s attorney, and the objection was sustained by the court and an exception taken by appellant. The verdict was for defendant, and a motion for new trial was overruled and judgment rendered on the verdict, and the case is brought to this court by appeal.
    Mr. F. A. Smith, for appellant.
    Mr. Jambs Leddy, for appellee.
   Moran J.

On the trial of this case in the court below the question whether the §3,000 which appellee obtained on the day the agreement of loan was made and the §1,000 which he obtained on the day the trust deed to Millard was executed were advanced to him as a part of the §20,000 agreed to be loaned, so as to leave but §16,000 coming to him at the time Millard made the tender to him of that sum and asked him to complete the loan and deliver the securities, became a material question in the case. On the part of appellant it was contended that said §4,000 was given to appellee at his request as an advance on the §20,000, and that the notes for the §3,000 and the §1,000, making the §4,000, were made to A. C. Collins, the mother of appellant, as a matter of form, because the security for a minor’s money would have to be approved by the Probate Court; that this was all well understood by appellee, and the minor’s money was in fact drawn by him upon the guardi-n’s checks which were given him.

Appellee testified to the contrary: that the '$4,000 had no connection with the $20,000 loan, but was a separate matter; that the $20,000 was to be paid to him and he was to pay the $4,000 (which was no part of the $20,000 secured by the trust deed), and that said $4,000 was not paid to him on guardian’s check. Several of the instructions given by the court to thej jury made the right of the parties depend as a principal hyt pothesis upon whether the jury should believe from the evidence that the $4,000, represented by the $3,000 and $1,000 notes, was not advanced to appellee by Millard as a part of the $20,000 loan in question, but was loaned to appellee by said Millard as a separate and independent transaction. This issue having been made a prominent one, and treated, at least in part, as controlling in the trial below, was the record of the case in the United States Court offered by appellant and excluded from the case on the objection of appellee, relevant evidence ? Examination of the record so excluded discloses that a bill to foreclose its mortgage upon the property of appellee was filed in the United States Court for the Northern District of Illinois by the Connecticut Mutual Life Insurance Company, and that among others, appellee and Sydvester M. Millard and appellant were made parties defendant thereto. That a cross-bill was filed in said case by Sylvester M. Millard and Frederick M. Smith, in which Hobart C. Taylor, the appellant, afterward joined as a complainant, and to which appellee, with others, were made defendants, in which, among other things, the agreement between appellee and appellant, as represented by said Millard for said $20,000 loan is set out, the execution of the trust deed by appellee to Millard to secure the same is alleged, the delay from various causes in the completion of said loan is stated at length, and it is averred that at the request of appellee said Millard advanced to said appellee on account of said loan in April, 1882, $3,000, and that appellee gave his note therefor, payable to A. C. Collins; and that in June, 1882, at appellee’s request, Millard advanced an additional thousand dollars on account of said loan, and that on December 20, 1882, said Millard tendered the balance of said loan, to-wit, $16,000, to said appellee, and requested said appellee to complete the loan and deliver the securities, and that appellee refused to do so. It thus appears that the subject-matter of the loan and the money advanced was before the United States Court.

The decree rendered, and which is entitled in the original case as well as in the cross-hill of Hobart C. Taylor v. Oscar Field, finds, among other things, that said Hobart C. Taylor is entitled to recover of said Oscar Field the sum of $4,697, and to have a valid lien for the payment thereof on the real estate described in the bill, and orders that out of the money arising from the sale of the premises after the complainant in the original bill shall have been paid its debt, then from the remainder the sum so found due to Hobart C. Taylor shall be paid, and that upon the acceptance of said sum and interest by said Hobart C. Taylor, or his guardian, the two promissory notes made by said Field to A. C. Collins and referred to in said Taylor’s cross-bill, shall be surrendered to said Oscar Field, and it is further ordered that said Millard shall, on the payment of said sum of $4,697, release and discharge said trust deed from said Field to him. Primiafaeie the question whether the $4,000 advanced to appellee by Millard w'as advanced as part of the loan of $20,000, appears from the decree to have been considered and determined by the United States Court. It is not seen how the judgment'orders made could have been reached without the determination of that very question. That court it appears had the parties to this action before it, and it is not suggested that it had not complete jurisdiction, nor that the record as offered was not in all respects formal and properly authenticated.

The objection urged to it was that it was irrelevant, and that objection was a waiver of the other objections, if any there were, which were not mentioned to the court. Considering, then, only the objection made and ruled upon in the court below, we are of opinion that the decree offered was clearly relevant testimony. It tended strongly and probably conclusively to establish the fact which the defendant denied. A judgment determines not only the precise facts involved directly in the former issue, but also all facts incidentally involved and which were in fact passed upon as the foundation of the former decision. Adams v. Pearson, 7 Peck, 341; Reg. v. Hartington, 4 Ellis & Bl. 780.

And the judgment may be given in evidence to establish a fact which it determined when such fact comes in controversy between the same parties in another suit, though the last suit may not arise in relation to the identical thing litigated in the former one, and may be so given in evidence without being set up in the pleadings. Chase v. Walker, 26 Me. 555; Edgel v. Sigerson, 26 Mo. 583; Babcock v. Camp, 12 Ohio St. 11.

Decrees of courts of chancery upon matters within their jurisdiction stand upon the same footing with judgments at law. 2 Smith Lead. Cas. 593 (Hare & Wallace edition).

Counsel for appellee con'.ends that the decree was anomalous, and that it does not in terms find that the four thousand was part of the twenty thousand dollar loan. The decree being anomalous is of no consequence. If in fact erroneous it would still be conclusive of facts determined by it unless it was reversed by a direct proceeding. The decree, as we have already intimated, need not find the disputed fact in terms. It is enough that by necessary implication it must have been in issue and must necessarily have been decided in order to support the decree. 13 Texas, 68; 24 Wis. 124.

Manifestly the court erred in excluding the record as irrelevant. For such error, and without reference to the other errors assigned, the judgment must be reversed and the case remanded.

jReversed and remamded.


source: Caselaw Access Project

author: Moran, J.

license: Public Domain

text:
    Seth F. Hanchett v. Amelia Rice.

      Husband and Wife — Properly of Wife — Acts of 1861, 1869 and 1874— Presumptions — Common Law in other States.

    1. Under the common law the money and personal property of the wife, other than choses in action, became the absolute property of the husband, her possession being his possession.
    2. The Act of 1861 is prospective only. It did not change the husband’s title to property of the wife, which had vested in him by marriage prior to its passage, nor did it affect his right to property subsequently purchased by her with property which had so vested in him.
    3. Married women did not become entitled to their own earnings in this State until the passage of the Act of 1869.
    4. ' The husband is still regarded as the head of the family, and the house hold furniture in possession of the family is presumed to be his until the contrary is shown. Neither the Act of 1861 nor that of 1874 was designed to overcome this presumption nor to take from the husband rights previously acquired, or subsequently acquired in another State.
    5. In the absence of evidence to the contrary, it will be presumed in the courts of this State that the common law prevails in other States formed from the territory which once belonged to the colonies of England.
    [Opinion filed April 26, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Statement by Moran, J. This was an action of replevin to recover possession of certain household furniture which had been taken by the Sheriff on a writ of attachment against one Isaac A. Rice, the husband of appellee, and which appellee claimed was her separate property purchased with her own money. It appeared from her evidence that she was married in Baltimore, Maryland, in 1854, and at once went to live with her husband in Richmond, Virginia. On the day of her marriage she received $1,000 from her parents, which she never gave to her husband, but which she invested in part in personal property in ¡Richmond, and again disposing of the property, brought the money back to Baltimore where' she lived with her husband some three years. During her residence in Baltimore she purchased a slave and sold him again, making some money by the transaction, and in 1859 or 1860 she came with her husband to this State and settled in Jacksonville. After a time the family removed to Winona, Illinois, where her husband conducted a business for some years. During the sojourn at Jacksonville and Winona she purchased real estate in her own name and sold it again, making a profit, and also purchased and sold county bonds. About 1867 or 1868 she moved with her husband to Hobart, Indiana, where they resided for a year, and she took the money with her to that place and kept it in her own possession until' they came to this State again, and still retained the money in her possession, when the family went to Beloit, Wisconsin, where they lived for some time. While there she purchased some real estate and sold it again, making a profit, and then returned to this State, and to the City of Chicago, to live. While she was living in Winona with her husband, his brother was in partnership with her husband in the clothing business and the brother having gone into the army in 1861-2 employed her to take his place in the store and paid her §59 a month for her services until he returned from the war in 1865 or 1866. This money as well as the money that was given her at her marriage by her parents, she always kept in her own possession and control, and when she purchased property she did the business herself and in her own name, and her husband never at any time had possession of the money or claimed it as his, but left her to manage it as she liked. When she came to Chicago to live she had some §4,000 or §5,000 which was the money given her by her parents at the time of her marriage, and the money given her by her brother for services rendered while she was living with her husband in this State, between 1861 and 1866, and the increase of such money made by her investments and speculations. The furniture in controversy was purchased by her and paid for out of this fund, and was, at the time of the levy, in the house in which she resided with her husband and family. Upon these facts the appellant offering no evidence, the court instructed the jury to find a verdict in favor of appellee, to which instruction appellant, duly excepted. There was a verdict for the appellee, a motion for a new trial which was overruled, and judgment; and the case comes to this court by appeal.
    Messrs. Moses, ¡Newman & ¡Reed, for appellant.
    In 1854 the common-law rules prevailed in this State regarding th ejus matrimonii.

    The common law is presumed to have prevailed in Maryland and Virginia where appellee married and lived, prior to 1859, when they came to Illinois.
    The same rule still prevailed in 1859 and 1860, when they took up their abode in Illinois.
    The $1,000 in money became the property, of her husband upon the marriage, and remained so through the various mutations.
    Upon their coming to this State the same rule of law pre. vailed and governed their property, which was money.
    The “ married woman’s law ” did not-take effect until 1861.
    The following autnorities bear upon the questions at issue : Haralson v. Bridges, 14 Ill. 37; Emerson v. Clayton, 32 Ill. 493; Farrell v. Patterson, 43 Ill. 52; Dubois v. Jackson, 49 Ill. 49; Hall v. Sroufe, 52 Ill. 421; Bridgford v. Riddell, 55 Ill. 261; Thomas v. City of Chicago, 55 Ill. 403; Adlard v. Adlard, 65 Ill. 212; Jassoy v. Delius, 65 Ill. 469; Tinkler v. Cox, 68 Ill. 119; Kahn v. Wood, 82 Ill. 219.
    Messrs. Sawin & Vanderploeg, for appellee.
    In order to make the wife’s choses in action the property of the husband, he must exercise some act of ownership over or control them with the intention of reducing them to his possession, and until they belong -to the wife. Schouler’s Domestic Relations, 11A-116.
    If the husband had not reduced the husband’s dieses in action into possession before the Married Woman’s Act of 1861 took effect, he can not do so afterward, and they became hers absolutely. Martin v. Robson, 65 Ill. 129; Emmert v. Hays, 89 Ill. 11.
    Income to chose in action is as much a chose as the principal itself. Schouler’s .Dom. Relations, 115.
    If, after the Act of 1861 took effect, the wife purchased real or personal property in her own name with money she received from a third party other than her husband, or with money which she claims as her own and which her husband treated and recognized as such, then the property so bought or obtained and the proceeds thereof, belong to the wife, and in the Jaw is considered as her separate estate, free from the debts of her husband. Dyer v. Keefer, 51 Ill. 525; Pike v. Baker, 53 Ill. 163; Wing v. Goodman, 75 Ill. 159; Emmert v. Hays, 89 Ill. 11.
    Where a woman, prior to 1861 and at the time of her marriage, was possessed of certain mone3r which came from her parents, and after the marriage this money and the proceeds thereof, was recognized and treated by the husband as the property of the wife, it will he so considered. Wing v. Goodman, 75 Ill. 159.
    Even though prior to 1861 the husband legally owned or was entitled to money or dioses in action claimed hv the wife, and admitted and treated by him as his, still, if since the Act of 1861 took effect, the husband allowed his wife, either as his agent or otherwise,' to invest such money, property or proceeds in real or personal estate, in her own name and for her own use and account, and the husband acquiesced in and ratified such investments and purchase, then such property would legally be considered as her sole and separate estate, free from the debts of her husband. Cowel v. Varnum, 37 Ill. 181; Haines v. Haines, 54 Ill. 74; Pike v. Baker, 53 Ill. 163; Wing v. Goodman, 75 Ill. 159; I., B. & W. Ry. Co. v. McLaughlin, 77 Ill. 275.
    The earnings of a married woman since 1861 and before the Act of 1869, as belonging to her husband, does not include the proceeds or increase of her separate estate. Bongard v. Core, 82 Ill. 19.

      The husband may, unless he injure his creditors thereby, have property purchased with his money, conveyed directly to the wife, and thereupon it will become her sole and separate estate free from his debts, and insolvency on the part of the husband at such time will not be presumed, but must be proved. Sweeney v. Damron, 47 Ill. 450; McLaurie v. Partlow, 53 Ill. 340; Bettinger v. Kasten, 111 Ill. 260.
   Moran, J.

The question presented by this record is whether the appellee established, by the evidence introduced, a title in the furniture replevied, which entitled her to recover it in an action at law against the creditor of her husband, who had levied upon it. By the common law the money and personal property of the wife, of which she was actually and beneficially possessed at the time of the marriage in her own right, and such goods and chattels as might come to her during marriage, became the absolute property of her husband, and the tangible property was transferred to him by operation of the law wherever it might be situated. For this purpose the possession of the wife was the possession of the husband, “ as for example, if she has money in her pocket, and this money never comes within his personal control, still being under her control, it is therefore in law his money and not hers, and the principle applies to all other chattels.” Bishop on the Law of Married Women, Sec. 64, and cases cited.

Such was the law of this State prior to the passage of the Act of 1861, and that act was not designed to take from the husband that which belonged to him at the time of its passage. Dubois v. Jackson, 49 Ill. 49; Cummings v. Cummings, (Mass.) N. E. Rep. 226.

When the appellee came into this State and lived with her husband prior to the passage of the Married Woman’s Act of 1861, the money which she had in possession was the money of her husband, and at law and so far at least as the rights of his creditors were concerned-, it continued to be his after the passage of that act, and all property that she purchased with it was his, and throughout all the changes and speculations and purchases and sales, the money, as well as the increase thereof, Avas his. Farrell v. Patterson, 43 Ill. 52, is conclusive of this case upon this point. There, Sarah Ann Farrell claimed certain property Avhich Avas levied upon by the Sheriff under exe-. cution against her husband, and a proceeding Avas had under the statute to try the right of property. There was an appeal from the verdict of the Sheriff’s jury and on the trial in the Circuit Court, the claimant introduced evidence that she married in 1849; that after her marriage her father gave her some means and also gave her §500 by his will; that she had íavo negroes which were sold for §1,300 and also had some household furniture which she had received from her father; that she came with her husband to this State in 1859, and from that time had been keeping hotel, the entire business being carried on in her name. The property levied upon was purchased by her inheroAA'nname. The court, after alluding to the fact that the moneys AA’hich she claimed came from a source other than her husband came to her from her relations prior to the law of 1861, said: “These moneys then, by force of well known and well established principles of law governing marital relations, became the property of her husband, and the chattels purchased with it became his likewise. The statute of 1861 was never designed to take from the husl and that which belonged to him as a consequence of the marriage, nar could it do so without violating those principles of right and justice no Legislature ever knoAvinglv and of purpose disregarded and ignored. All the well recognized presumptions arising from the marital relation with respect to the title to property of the wife still remain notwithstanding this statute. The act is prospective only, and is not designed to change and could not change the title to property possessed by the wife prior to its passage and which by the marriage vested in her lmsband.”

The same rule was applied in Dubois v. Jackson, supra, and we know of no case and have been referred to none, where it has been qualified, modified or questioned.

So with reference to the money paid to appellee by her brother for services prior to 1866: that also became her husband’s, and Avhatever chattels she purchased with it would be subject to the rights of his creditors. ■

It was not until the passage of the Act of 1869 that married women became entitled to their own earnings in this State. Hay v. Hayes, 56 Ill. 842; Jassoy v. Delius, 65 Ill. 469.

The fact that appellee went from this State to Indiana and also to Wisconsin, and resided in each of those States for a time with her husband, and there had the money in her possession and dealt with it, does not in any manner strengthen her position, but in fact rather makes against it under the evidence in this record. It is a presumption always indulged in by the courts that the common law prevails in such of the States of the Hnion as are formed from territory which once belonged to the colonies of England. Unless the contrary is proven as a fact to the court it will be presumed in this State that the common law prevails in Indiana and Wisconsin, as regards the marital rights of the husband. So when appellee proved that she resided in Indiana with her husband and had the money in her possession there, and that she also resided in Wisconsin and had this money there, and afterward came with it into this State, the presumption of law in. the absence of proof that by statute a married woman could hold her own personal property in that State is, that the common law prevailed there, and that by virtue of that law the money there became her husband’s and therefore remained her husband’s when she came into this State with it, and so the furniture purchased with it was subject to the levy by his creditors. This principle has been declared and applied by the Supreme Court in the case of Tinkler v. Cox, 68 Ill. 119. There the plaintiff, a married w'oman, purchased a horse with her own means in the State of Indiana, in 1867, and removed with her husband to this State, bringing the horse with them. The husband, in 1872, mortgaged the horse and placed him in the possession of the mortgagee, and the wife brought replevin, claiming him as her separate property. The court said: “ The proof is, Mrs. Cox purchased the horse in the State of Indiana, but it is not proved as it might have been, if the law was established in that State, that by the laws of that State property so purchased became the separate property of the wife, free from the control of her husband. In the absence of such proof we nrnst presume that the common law was in force in 1867, at the time Mrs. Cox purchased the horse, and so presuming, by that law the title of the property became vested absolutely in her husband; being so vested in the husband, by no' act of our Legislature could his title be divested.” See, also, Savage v. O’Neil, 44 N. Y. 298; Lichtenburger v. Graham, 50 Ind. 288. The Married Woman’s Act of 1861 was repealed by the general repealing act adopted in 1874; and appellee’s rights were controlled at the time of the trial by the act to revise the law in relation to husband and wife, in force July 1, 1874. Section 9 of said act is as follows: “A married woman may own in her own right, real and personal property obtained by descent, gift or purchase, and manage, sell and convey the same to the same extent and in the same manner that the husband can property belonging to him: provided, that where husband and wife shall be living together, no transfer or conveyance of goods and chattels between such husband and wife shall be valid as against the rights and interests of any third person, unless such transfer or conveyance be in writing, and be acknowledged and recorded in the same manner as chattel mortgages are required to be acknowledged and recorded by the laws of this State, in cases where the possession of the property is to remain with mortgagor.” It may be suggested that by the terms of this statute a married woman may obtain property from her husband by gift, and that the evidence would justify the inference that the husband meant to renounce all rights to the money or property which appellee held and to make a gift of the same to her. It may be that in equity the husband and his representatives would be estopped from claiming the property because of the manner in which it was treated by him, but at law, in a case in which appellee must recover upon the strength of her legal title, it is very clear that a gift or transfer of personal property from the husband to the wife could not be established unless the terms of the above statute were shown to have been complied with. A valid transfer of the husband’s goods to the wife must be in writing, and acknowledged and recorded, as required by law. It is not pretended that this was done, nor indeed is it claimed that she held the property by gift from her husband. Contention is that the property never belonged to the husband, because he never reduced it into his possession. The rule with reference to reducing the personal property of the wife to possession has application only to the wife’s choses in action. We have already seen that as to money and chattels, being choses in possession, the title to them vests in the husband absolutely under the common law, and that the wife’s possession becomes his possession.

The furniture in question in this suit was in the house in which appellee resided with her husband. He is still regarded as the head of the family, and the household furniture in possession of the family is presumed to be his until the contrary is shown. The Act of 1874 was not designed, any more than the Act of 1861, to overcome this presumption of the common law, nor was it “ designed to take from husbands rights which had vested in them prior to its passage, or to take from them such as had been acquired in another State subsequent to its passage.” Dubois v. Jackson, supra; Reeves v. Webster, 73 Ill. 307.

Appellee asserted that the legal title to the furniture was in her; "that she bought and paid for it with her own money, and the onus was on her to prove it. Starting with the presumption that the furniture belonged to her husband, what has she shown to rebut the presumption ? She has shown that she received money from her parents and brought it with her to this State before the Act of 1861. That goes for nothing; for as the law then was it became her husband’s as soon as it was given to her, or as soon as she came with her husband to reside in this State. Walker v. Reamy, 36 Pa. St. 416. She further showed that, while living with her husband in this State, money was paid to her by her brother for services rendered between 1861 and 1866. That, too, became the money of her husband as the law then stood, and his ownership of it was not divested by any subsequent statute. She finally showed that she retained all the money in'her possession and went with her husband to the State of Wisconsin and increased the amount of it by profitable investment and brought it back with her to the State of Illinois, and with a part of it purchased this furniture. Here again, as we have seen, the presumption is that money which was in her hands in the State of Wisconsin became vested in her husband by virtue of the common law, and that it remained his upon their coming into this State, and thus the conclusion of the law on the facts in evidence is that the furniture was purchased with the money of her husband, and was his property, and was, therefore, subject to attachment at the suit of his creditors. It follows that the court erred in instructing the jury to find a verdict for appellee, and the judgment must, therefore, be reversed and the case remanded.

Reversed and remanded.


text:
    James H. Smith and Thomas W. Pattison v. John D. McLean and Jacob Retterer.

      Landlord and Tenant — Damage to Premises by Fire — Stipulations in Lease — Pleading.
    1. As a general rale a lessee has no relief against an express covenant to pay rent unless he has protected himself by stipulation in the lease.
    2. In the case presented, it is held: That the stipulation in the lease protected the lessee from liability for rent only while the premises were unfit ' for occupancy because of damage by fire; that the entry by the lessor on the premises to make repairs and the removal of goods and boxes out of the way of the builders did not amount to an eviction; and that the replication to the defendants' plea, that they were ousted by the fire, to the effect that the premises were repaired within a reasonable time, is good.
    3. A plea which alleges no facts, but states a mere legal conclusion as arising on an event which it recites hut does not allege to have occurred, is bad!
    [Opinion filed April 26, 1887.]

      Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Statement by Hoe an, J. Appellees brought an action of covenant against appellants to recover rent which accrued under the terms of a lease between the parties, the term of which commenced February, 1884, and extended till April 30, 1886, unless the term should be before then determined. The premises rented were “ the third floor of the building known as Hos. 83 and 85 Wabash Avenue, also 15x65 feet in the basement of said building."
    The covenant to pay rent was to pay “ the sum of $2,856.40, payable in equal monthly installments of $108.33 on the 18th day of each and every month during the term of this lease." The lease contains the ordinary covenants, and a stipulation as follows: “ It is agreed that in case the above premises are damaged by fire no rent shall be paid while the premises are unfit for occupancy." To the declaration, which is in the usual form, the defendants below pleaded a first plea that, “ on the 14th day of April, 1885, the said possession and tenancy of the defendants under and by virtue of said indenture was terminated by the destruction of the said demised premises, in plaintiff’s declaration described, without the fault or neglect of the defendants,” and other pleas averring the demised premises were destroyed by fire, and that the building containing the demised premises were destroyed by fire, and a plea averring that the demised premises were so badly damaged by fire that the defendants were ousted, etc. To the first plea plaintiff demurred and'the demurrer was sustained; issue was taken on the other two pleas, and to the last plea above mentioned a replication was filed alleging' that the damage by fire was repaired within a reasonable time after the fife, and the premises became and were fit for occupancy a long time before the commencement of the term, etc., and that the defendants had due notice thereof. To this replication defendants demurred- and the demurrer was overruled. Defendants elected to stand by their first plea and by their demurrer to said replication. The case was submitted to the court for trial, and judgment was rendered by the court for §280. The case is brought to this court by appeal and the sustaining the demurrer to defendants’ first plea and overruling the demurrer to plaintiff’s replication to the last plea, are assigned for error.
    Messrs. Weigley, Bulkley & Gbay, for appellants.
    Mr. P. L. Shekmar, for appellee.
   Moran, J.

Appellant’s first plea is bad. It alleges no facts, but states a mere legal conclusion as arising on an event which it recites, but does not allege to have occurred. The demurrer to it was therefore properly sustained.

The question which appellant’s counsel have so elaborate^ discussed, viz., the rule to be applied when a building in which apartments or rooms are leased is entirely destroyed by fire without the fault of the lessee, by the elimination from our consideration of the first plea becomes a mere moot question in this case and one which we are not called upon to decide. The authorities cited and relied on by counsel relate to cases where there was a total destruction of the building, and when the space occupied by the tenant could scarcely be more definitely designated after the tire than by imaginary lines drawn in. the air. Graves v. Berdan, 29 N. Y. 498 ; Austin v. Field, 7 Abb. R. N. S. 29; Ren v. Merchants’ Ex. Co., 3 Edw. Ch. 315 ; Buerger v. Boyd, 25 Ark. 441. The principle announced by these cases has no proper application where the demised premises are merely damaged by fire so as to be temporarily unfit for occupancy, but are left capable of repairs within a reasonable time, and when no rebuilding or reconstruction of the entire edifice containing the rooms has become necessary.

Appellant’s plea, alleging that the premises were so badly damaged by fire that they were ousted and deprived of the possession and enjoyment thereof, is a good plea only because of the stipulation in the lease providing that in case the premises were damaged by fire no rent should be paid while the premises were unfit for occupancy; and appellee’s replication that, within a reasonable time after the fire, said premises were repaired, and then and there became fit for occupancy, of which appellants had notice, was a good replication to' said plea, and the demurrer thereto was properly overruled.

It is the general rule of law that a lessee has no relief against an express covenant to pay rent unless he has protected himself by a stipulation in the lease. The stipulation in the lease under consideration protected the lessees from liability for rent while the premises, if damaged by fire, should remain unfit for occupancy — no longer — and the manifest intention of the parties, as shown by the lease, was that upon the premises being repaired and rendered fit for occupancy, and being open to the occupancy of the lessees, the covenant to pay rent should again become operative. The stipulation was for the benefit of the lessees, and without it they would, under the circumstances of this case, have been held on their covenant for the entire rent accruing after the fire. Izon v. Gorton, 5 Bing. N. C. 501; Peck v. Ledwidge, 25 Ill. 109.

It is contended by appellants that they were evicted from the premises by the acts of appellees. It appears that after the fire some of the goods of appellants were removed by them from the basemént portion of the leased premises to tlie first floor of the building for convenience. Some remained in the basement with the rubbish and debris. Some one representing the appellees or the builders, who were repairing the building, stated that the goods of appellants were in the way, and requested appellants to move them. They did "not do so at once, being busy, but after some time they took the goods away. These facts do not show an eviction. ¡Nothing done or said by appellees indicates an intention on their part that appellants should no longer occupy the premises. It was necessary for the landlord to enter upon the premises to make the repairs and render them fit for occupation, and the removal of the goods and boxes out of the way of - the builders was also necessary to the operation being carried on, and the record is conclusive that neither party regarded the removal of the goods under such circumstances as affecting the relations created by the lease. Morris v. Tillson, 81 Ill. 607, 623; Walker v. Tucker, 70 Ill. 527; Alexander v. Dorsey, 12 Ga. 12.

Our conclusion is against appellants upon the points urged by them against the judgment, and the same must therefore be affirmed.

Judgment affirmed.


author: Per Curiam.

text:
    Rose Keegan and John Keegan, Imp’d, etc. v. Hannah Kinnare, Administratrix, etc.

      Action of Debt on Bond — Formal Defect in Judgment.

    In an action of debt on a bond, it is held: That a formal defect in the judgment as written up, which did not prejudice the appellants, is not sufficient ground for reversal.
    [Opinion filed April 26, 1887.]

    Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge presiding.
    Messrs. M. A. Rorke & Son, for appellants.
    As showing that this judgment is erroneous in point of form, and under some of the cases cited in substance, and that the word “damages” is essential, see Parisher v. Waldo, 72 Ill. 71; Mattieson v. Stephens, 9 Ill. App. 435; Eggleston v. Buck, 31 Ill. 254; Austin v. People, 11 Ill. 452; Toles v. Cole, 11 Ill. 552; Knox v. Breed, 12 Ill. 61; Frazier v. Laughlin, 1 Gilm. 347.
    Messrs. Hynes, English & Dunne, for appellee.
    The verdict of the jury was as follows: “We, the jury, find the issue's for the plaintiff; we find the debt to be $3,000, and we assess the plaintiff’s damages at $1,840.” The verdict was undoubtedly in the most approved form.
    Hpon the motion for a new trial, on the suggestion of the court, plaintiff remitted some $80, and the court thereupon entered judgment “ that the plaintiff do have and recover of and from the defendants her said debt of $3,000, and also the said sum of- $1,760, together with her costs and charges in this behalf expended, and have execution therefor. It is further ordered that said debt be discharged upon a payment of the said sum of $1,760, interest thereon and costs of suit.” This judgment was in proper form. It is true that sometimes the word “ damages ” is used, but only, as we understand it, in cases where the judgment is the same as the verdict. The form, as given by the court, has been in use for years where any reduction is made in the finding of a jury. The material part of the verdict is that part which declares that the judgment in debt must be satisfied upon the payment of the damages found. That part appears clearly in the finding of the court in this case in these words: “ It is further ordered that said debt be discharged upon the payment of the said sum of $1,760, interest thereon and costs of suit.”
    It has been the invariable practice in the Qircuit and Superior Courts of Cook County, in an action of this nature, when the amount found by the verdict of damages has been changed by remittitur, to enter up the judgment in the form in which the judgment is rendered, and we see no good reason why the practice should be disturbed.
   Per Curiam.

This was an action of debt on a bond. The evidence would support á larger verdict than was rendered. A great many errors are assigned which it would serve no useful purpose to discuss. We have examined them all carefully and find none which would authorize a reversal of the judgment. There is a formal defect in the judgment as written up, but no injury can arise from it, the whole judgment order being correct in substance. It clearly appears that the debt adjudged against the defendants is to be discharged upon the payment of damages, to wit, the sum of $1,760, interest thereon and costs of suit. Under such order, execution could on’y issue for said sum of $1,760, and interest thereon from the date of the- judgment, and the costs. And the payment of such amount would work a discharge of the whole judg-t ment.

In the cases cited by counsel, there was more than a mere informality in the judgment order. The defendant was, by the order entered, required to pay more than was due — more than the damages — in some of the cases the debt and damages, and there was nothing in the order to protect him from such consequence.

There is no reason shown why the judgment should be reversed, and it will, therefore, be affirmed.

Judgment affirmed.


text:
    Edson Keith et al. v. Cecilia Goldston et al.

      Deceit — What Necessary to Prove — Knowledge of Plaintiff — Inference of Improper Motive.

    1. To recover in an action for deceit it is only necessary for the plaintiff to prove that the representation was false; that the party making it knew it to be false; and that the plaintiff relied upon it as true, was induced to act upon it, and was injured.
    2. The motive of the defendant'in making the false statement is wholly immaterial. The law infers an improper motive, if what the defendant says is false within his own knowledge, and is the occasion of damage to the plaintiff.
    [Opinion filed April 26, 1887.]
    Appeal from the County Court of Cook County; the Hon. Richard Prehdergast, Judge, presiding.
    Messrs. A. W. Bbickwood and D. M. Kibton, for appellants
    Messrs. Hofeheiher & Rosenberg, for appellees.
   Moran, J.

Appellants brought an action of deceit against appellees, alleging fraud i?i obtaining credit for certain mereliandise by false representations with reference to the amount of debts owing by Cecilia Goldston, and denying that she had any judgment notes outstanding against her. The written statement of assets and liabilities made out by Hatlian Goldston and signed by Cecilia Goldston and delivered to appellants’ credit manager, for the purpose of getting goods on credit, is substantially admitted to have been false in at least the two statements mentioned. The defendants’ contention was that though the statement might be false it was not made with intent to deceive, and at the request of appellees the court instructed the jury in one instruction, “that to constitute fraud, there must be design and contrivance to injure another,” and in another that, “unless the plaintiffs have proven either that at the time when the defendants got the goods, they then intended never to pay for them, or that defendants before gettmg the goods made to the plaintiffs a statement which was false, and that it was then made with the in uition of deceiving and defraxiding the plaintiffs, and that the plaintiffs relied on such statement and believed it to be true,” the jury must find for the defendants.

The jury found for the defendants, and there was judgment on the verdict, and the plaintiffs appeal, assigning for error the instructions given by the court to the jury above set out. To recover in an action for deceit, it is only necessai’y for the olaintiff to prove that the representation was false, that the party making it knew it to be false, and that the plaintiff relied upon the representation as trae, and was induced to act upon it and was injui-ed. Merwin v. Arbuckle, 81 Ill. 501. The motive which actuated the defendant in making the false statement is wholly immaterial. The law infers an improper motive, if what the defendant says is false within his own knowledge and is the occasion of damage to the plaintiff. Foster v. Charles, 6 Bing. 396.

The instructions given by the court and above quoted wei e intended to inform the jury that it. was not enough to prove the falsity of the representations, and that defendants knew them to be false, but there must be in addition, proof of a design o: purpose to injure — an intention to' defraud at the time of making them. Such is not the law, and the instructions were erroneous and clearly tended to mislead the jury. McBean v. Fox, 1 Ill. App. 177; Case v. Ayer, 65 Ill. 142; Gough v. St. John, 16 Wend. 645.

For the errors indicated the judgment must be reversed and the cause remanded.

Reversed and remanded.


text:
    The Erie and Pacific Dispatch v. Edward N. Stanley et al.

      Carriers — Delay -in Transportation — -Action for Damages — Ecidence— Question for Jury — Remittitur.
    1. The showing of a bill of lading to a witness in rebuttal to refresh bis memory as to the dates of shipment does not make it admissible for other purposes on cross-examination.
    2. Where the testimony is conflicting the verdict will be sustained though its correctness may be doubtful.
    3. An error by the jury in assessing actual damages, where the damages are computed on the value o£ goods damaged or destroyed, is not evidence of passion or prejudice.
    [Opinion filed May 18, 1887.]
    Appeal from the Circuit Court of Cook County; the ILon. Kirk Hawes, Judge, presiding.
    Messrs. Willard & Driggs, for appellant.
    Messrs. Frank J. Smith & Helher, for appellees.
   Per Curiam.

This was an action in assumpsit brought to recover damages which it was claimed by appellees they suffered by reason of delay in transportation and bad care while in transit, of 984 boxes of lemons shipped from New York to Chicago in June, 1882, by appellees over appellants’ freight line. On the tr.ial before the court and jury appellees obtained a verdict, upon which, after a remittitur of §500 from the amount thereof, the court rendered judgment against appellants. The ruling of the court in refusing to allow a duplicate bill of lading of the goods to go in evidence, it having been shown to a witness called in rebuttal to refresh his memory as to the date and place of shipment of the goods, is assigned for error. That being the extent of the direct examination, appellants claimed on the cross-examination the right to introduce the bill of lading, or prove its contents, to show, not that the witness was in error as to the date,and place of shipment, but that the appellees had by the contract in the bill of lading assumed the risks of injury to the goods which might arise from decay during transportation. It seems very clear that the bill of lading was not made admissible for such purpose by having been shown to the witness to refresh his recollection on the other points, and the court’s ruling was therefore correct. The authorities cited by the counsel for appellants as we understand them, in no manner sustain their contention.

It is argued that the verdict is against the weight of the evidence, and that this court ought to reverse on that ground. The rule is, when the testimony is conflicting, though the correctness of the finding may be doubtful, the verdict will be sustained.

There is a sharp conflict in the evidence as to several questions, but that conflict was settled in favor of the appellees by the verdict of the jury, and the verdict has the approval of the trial Judge, who saw the witnesses and heard them testify.

The verdict was excessive in the amount of damages allowed, but that was cured by the remittitur. The error was made in assessing actual damages, not in allowing punitive damages or smart money, and is no-more evidence of passion or prejudice on the part of the jury than if they had gone wrong in fixing damages in any case when the damages are computed upon the value of the guodc damaged or destroyed-Counsel do not argue that any error was committed in instructing the jury, and after a careful examination of the record we are unable to say that the verdict is manifestly against the weight of evidence. There being no error the judgment must be affirmed.

Judgment affirmed.


text:
    Hutchinson Furnace & Smoke Consuming Company v. Will H. Lyford.

      Corporations — Sale of Capital Stock — Fraud.
    In an action against a corporation to recover damages for fraud, in the sale of certain shares of its capital stock, this court., upon a review of the record, affirms the judgment of the court below for plaintiS.
    [Opinion filed May 18, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Eollin S. Williamson, Judge, presiding.
    Mr. John M. Gartside, for appellant.
    Mr. Wm. Armstrong, for appellee.
   Per Curiam.

This was an action on the case brought by Will H. Lyford against the Hutchinson Furnace and Smoke Consuming Company, to recover damages for fraud in the sale by the defendant to the plaintiff, of certain shares of the capital stock of the defendant company. At the trial the jury found the issues for the plaintiff, and assessed his damages at the amount paid by him for said shares and interest. We have given the record careful examination, and are of the opinion that it contains no errors of law and that the evidence sustains the verdict. The judgment will be affirmed.

Judgment affirmed.


text:
    Chicago, Burlington & Quincy Railroad Company v. Samuel Warner.

      Master and Servant — -Action' for Personal Injury — Comparative Negligence — Instructions—-Sufficiency of — -Duty of Master as to Machinery Furnished.

    -1. The jury should not be left to apply the doctrine of comparative negligence without being told that in no event can the plaintiff recover if he has failed to exercise ordinary care.
    2. Where the instructions, considered as a series, do not present contradictory propositions between which the jury may choose, and where, when so considered, they fully and fairly state the law, an omission of one of them is not a ground of objection.
    8. In the case presented, it is held: That the jury were sufficiently instructed; that there was no substantial error in the modification and refusal of instructions asked; that a certain modification as to the master's duty, touching the kind of machinery furnished, could not have prejudiced the defendant; alud that the allowance of $6,500 as damages is not so excessive as to warrant the interference of this court.
    [Opinion filed May 18, 1887.]
    Appeal from the Circuit Court' of Cook County; the Hon. Kirk Hawes, Judge, presiding.
    Mr. Melville W. Fuller, for appellant.
    Mr. W. S. Johnson, for appellee.
   Moran, J.

Appellee was injured about 2 o’clock in the morning of August 20, 1875, while serving the appellant company in the capacity of freight conductor. He was, at the time of the accident, endeavoring to uncouple and detach a car from the train of which he had charge, while the said train was in motion. He had climbed up on the ladder on the side and near the end of the car, and when about half way to the top he swung himself around the corner of the car expecting to grasp with his hand a handle which he supposed was on the end of the car, and to get foot-rest upon a step which he also supposed was on the end and to pass on to the deadwood in the center of the car where the uncoupling had to be made. There was neither step nor handle on the car end, and appellee, having no means of holding on, fell on the track between the rails, and his arm was injured as the train passed over him by coming in contact with the iron rod, which ran through the center of the brake-beam to such an extent that it was necessary to amputate it near the shoulder. The negligence charged, and on which appellee relies as a basis of recovery, is the failure by the company to provide the ear with end steps and handle to be used in making couplings. The ease went to judgment in the Circuit Court once before, and on appeal was reversed by the Supreme Court for error committed by the trial court in refusing an instruction asked by the defendant company. C., B. & Q. R. R. Co. v. Warner, 108 Ill. 538.

On this appeal it is contended that the Circuit Court erred in giving, refusing and modifying instructions, and that the verdict is against the evidence. There is a conflict of evidence on several questions, more or less material in the case, and the verdict must be held to have settled such conflict in favor of appellee, unless such errors of law appear in the record, as shall require a reversal. Three instructions were given by the court on appellee’s request. The second, of the giving of which appellee complains, is a form of instruction on the law of comparative negligence which has frequently been approved by the Supreme Court. Appellant’s complaint is that it does not contain the hypothesis of ordinary care on plaintiff’s part. The instruction does not purport to state all the elements which would entitle the plaintiff to recover, or all the elements of a cause of action. It is a statement that if the plaintiff was guilty of some negligence and the defendant was guilty of gross negligence, which contributed to the injury, and that plaintiff’s negligence was slight as compared with defendant’s, “ then such negligence on the part of the plaintiff will not prevent a recovery in this case.” The defendant’s third instruction given is as follows: The jury are instructed that the plaintiff, to recover in this case, is bound to establish by a preponderance of evidence, both that the defendant was guilty of negligence as charged in the declaration filed in the case, and that he, the plaintiff, was in the exercise of all reasonable and ordinary care at the time of the accident; and unless the jury find from the evidence and under the instructions of the court that the plaintiff has established both of these facts by a preponderance of evidence, the verdict should be for the defendant.” It will be seen that the requirement of ordinary care on the plaintiff’s part is very pointedly stated to the jury in the foregoing instruction. They are told that unless the plaintiff has established by a preponderance of the evidence that he was in the exercise of reasonable and ordinary care at the time of the accident, the verdict should be for the defendant.

These two instructions, plaintiff’s second and defendant’s third, are not contradictory of each other, are in no way in conflict, and each states the law correctly on the points which it purports to cover, and in both, the whole law as to ordinary care and comparative negligence was correctly given to the jury. In other of the instructions given for the defendant, the necessity of the plaintiff’s having been in the exercise of ordinary care for his safety is stated to the jury as essential to his right of recovery, and the contrary is nowhere stated in any instruction, nor is it in any manner implied unless it can be from said second instruction. Under such conditions we do not think it possible that from the giving of plaintiff’s second instruction the jury could have inferred that he might recover even if he failed to exercise ordinary care. In C., B. & Q. R. R. Co. v. Johnson, 103 Ill. 512, each of the three instructions given for the plaintiff contained this proposition: “ But if the jury believe from the evidence that Johnson did not exercise ordinary care, yet that Johnson’s negligence was slight and that the negligence of the defendant was gross in comparison with each other, then the. plaintiff must recover and the verdict must be for the plaintiff.” These instructions were manifestly bad and were so held by the Supreme' Court, the exercise of ordinary care by the plaintiff being an essential element to the right of action in all cases where the recovery is sought on the ground of mere negligence. Where the instruction on comparative negligence is given, and no instruction is given in the case which tells the jury that there can be no recovery unless plaintiff was in the exercise of ordinary care, there may be a misleading implication arising from the giving of such comparative negligence, instructions without the hypothesis of ordinary care.

Such appears to have been the case in C. & N. W. R. R. Co. v. Thorson, 11 Ill. App. 631, and Garfield Mfg. Co. v. McLean, 18 Ill. App. 447. The jury should not be left to apply the doctrine of comparative negligence without being told that in no event can the plaintiff recover if he has failed to exercise ordinary care, but where, as in this case, the instructions considered as a series fully and fairly state the law, and where there is no conflict in the instructions, when so considered, no contradictory propositions between which the jury may choose, we are inclined to the opinion that the jury could not be misled, and that the rights of the defendant have been in no manner prejudiced by the omission of the requirement of the exercise of ordinary care by the plaintiff from the said plaintiff’s second instruction. C. & A. R. R. Co. v. Johnson, 116 Ill. 206.; T., W. & W. R’y Co. v. Ingraham, 77 Ill. 309; C., B. & Q. R. R. Co. v. Avery, 109 Ill. 314; City of Chicago v. McDonough, 112 Ill. 85.

It is contended that the court erroneously modified defendant’s seventh instruction. The portion of the instruction containing the modification complained of is as follows (the words inserted by the court being in italics): “ The jury are instructed as a matter of law that a railroad company is under no obligation to its employes to provide the very best and safest appliances for its freight cars that could le produced, and if the jury believe,” etc. Counsel argues that the modification is error, not for what the instruction is made to say, but for what may be implied from it. From the words used the jury might infertile converse of the proposition and hold the company bound to furnish the very best and safest appliances, not that could be produced, but that were known to exist.

The modification "was unnecessary and if the instruction stood alone, the erroneous implication might have misled the jm;.y, but it is negative in form, stating not what the duty is, but what it is not, and other instructions given for the plaintiff and the defendant state the duty in that regard in positive terms. In plaintiff’s first instruction “ the court instructs the jury that it is the duty of railroad companies to use all reasonable care and diligence to furnish good and reasonably wel!-constructed machinery adapted to the purposes of its use; and while they are not required to seek and apply every new invention they must adopt such machinery and appliances as are found by experience to be reasonably safe and reasonably well adapted for the purpose for which they are used.” And in defendant’s fifth instruction it is said on this subject that the master’s obligation is not to supply the servant with absolutely safe machinery or with any particular kind of machinery, but his obligation is to use ordinary and reasonable care not to subject the servant to extraordinary or unreasonable danger.” In view of these instructions the modification was, in our opinion, harmless to the defendant. In this case the court gave ten instructions requested by defendant without modification, and gave nine others with modifications. Six instructions asked by defendant were refused. Complaint is made of the modification by the court of the nine instructions which were modified. It would serve no useful purpose to discuss these instructions and their modifications seriatim. We have examined all the instructions modified and refused, and we find no error in the action of the court in that regard, which, in our opinion, would authorize a reversal of this case. Some of the instructions modified were properly modified and it would have been error to give them without such modification. Some others might have been given without modification, but the modification of them in no way prejudiced the defendant. We think the jury were sufficiently, even abundantly, instructed on every material phase of the case in the nineteen instructions given for the defendant and the three given for the plaintiff.

The damages are quite large — appellant argues they are excessive — blit we do not feel warranted in interfering with the verdict on that ground.

We are of opinion that there is no error and the judgment of the Circuit Court must, therefore, be affirmed.

Judgment affirmed.


author: Bailey, J.

text:
    Frank Parmelee v. Sarah E. Farro.

      Action for a Personal Injury — Comparative Negligence — Instructions— When Great Accuracy is Required.

    1. The rule of comparative negligence requires, and has always required, much more than a mere preponderance of negligence on the part of the defendant to authorize a recovery. When the plaintiff is chargeable with contributory negligence, though slight, there must be a wide disparity between his negligence and that of the defendant or he can not recover.
    2. It was the right of the defendant in the case presented to have the terms, “slight ” and “gross,” explained, and especially to have the jury instructed that they imply more than a preponderance of negligence.
    3. Where the evidence is conflicting great accuracy in the instructions is required.
    [Opinion filed May 18, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Rollin S. Williamson, Judge, presiding.
    Messrs. William E. Mason and Egbert Jamieson, for appellant.
    Messrs. Brandt & Hofeman, for appellee.
   Bailey, J.

This was an action on the case brought by Sarah E. Farro against Frank Parmelee, to recover damages for a personal injury caused by the plaintiff’s being thrown from a buggy in which she was riding in one of the streets of Chicago. At the time of said injury the plaintiff and her mother were riding in said bnggy, the plaintiff holding the reins and driving: and as they reached a point at or near the corner of Adams and Clark streets they found the street so incumbered with wagons and other vehicles that they were obliged to stop. While they were standing' in that place, waiting for an opportunity to proceed, an omnibus belonging to the defendant, in charge of one of his employes, approached the plaintiff from behind, and in endeavoring to go past her buggy so drove the omnibus that one of its wheels, as the evidence tends to show, collided with said buggy, breaking it and throwing the plaintiff out on the ground, causing the injury complained of. There was evidence tending to charge the driver of the omnibus with negligence in producing the collision, and there was also evidence tending to charge the plaintiff with negligence contributing to her injury,

the evidence as to the negligence of both parties being conflicting.

Upon the foregoing evidence the court gave to the jury, at the instance of the plaintiff, an instruction embodying the rule of comparative negligence, and thereupon the defendant asked the court- to give to the jury the following instruction :

“The court instructs the jury that though they may believe from the evidence that the defendant, by his servant, was guilty of negligence upon the occasion in question, and that such negligence contributed to the injury complained of, yet, if the jury further believe from the evidence that the plaintiff was also guilty of an equal or nearly equal degree of negligence, directly contributing to the injury, and without which it could not have occurred, then the jury should find the defendant not guilty.”

The court refused to give this instruction as asked but gave it to the jury after having modified it by striking out the words in italics, and inserting in lieu thereof the following: “ did not exercise ordinary care and prudence to avoid being injured, then the plaintiff can not recover, and you should find the defendant not guilty.”

The instruction as asked was a correct proposition of law and should have been given. The rule of comparative negligence requires and has always required much more than a mere preponderance of negligence on the part of the defend, ant to authorize a recovery. When the plaintiff is chargeable with contributory negligence, though slight, there must be a wide disparity between his negligence and that of the defendant before he can recover. In C., B. & Q. R. R. Co. v. Payne, 49 Ill. 499, it was held, almost in the very language of this instruction, that where the negligence of the parties is equal or. nearly so, or that of the plaintiff is greater, no recovery can be had. This rule is repeated in nearly the same language in C. & A. R. R. Co. v. Murray, 62 Ill. 326; I. C. R. R. Co. v. Hall, 72 Ill. 222, and C. & N. W. R’y Co. v. Clark, 70 Ill. 276. So, in Keokuk Packet Co. v. Henry, 50 Ill. 264, it is said that if the plaintiff has been guilty of negligence, he can not recover unless that of the defendant is “greatly in excess.” In I. C. R. R. Co. v. Baches, 55 Ill. 379, it is held that the plaintiff’s negligence will bar a recovery except where the defendant’s negligence is of a higher degree, so that when it is compared with that of the plaintiff, the latter is “ greatly dis-proportioned or slight.” In C. & N. W. R’y Co. v. Clark, supra, it is said that the negligence of the defendant must “ clearly and largely exceed ” that of the plaintiff.

Of course no lawyer will have any difficulty in perceiving that the doctrine of the foregoing decisions is necessarily implied in the rule of comparative negligence. Between the two degrees, slight and gross, there is necessarily a wide disparity. But these terms “ slight ” and “ gross,” as used in this connection, have received a technical legal signification which non-professional men, who compose our juries, may not understand. It was therefore the right of the defendant in this case to have them explained, and especially to have the jury instructed that they implied more than a mere preponderance of negligence.

It is no answer to say that the instruction as given announced a correct proposition of law. It did not announce the rule of law which the defendant desired and had a right to have given to the jury. The refusal to give the instruction as asked was error and considering the conflict in the evidence upon the question of negligence, as well as upon most of the other branches of the case, we are of the opinion that the error was sufficiently grave and prejudicial in its character to necessitate a reversal of the judgment.

The judgment will therefore be reversed and the cause remanded for a new trial.

Judgment reversed.