text:
    Frances Sehnert, Appellee, v. Schipper & Block, Incorporated, Appellant.
    Gen. No. 6,035.
    1. Negligence, § 23

      —ivhen nuisance caused by encroachment of vestibule into street proximate cause of injury to customer learning store. The encroachment of a store vestibule into a street so as to constitute a public nuisance, does not amount to negligence which is the proximate cause of an injury, sustained by a customer in leaving the store, as the result of a door, in the vestibule, and wholly within the street, swinging back against him.
    2. Negligence, § 42*—when negligence presumed from happening of accident. An inference of negligence on the part of the owner of a store cannot be drawn from the fact that a customer in leaving the store was injured by a door swinging back against him.
    3. Nuisance, § 79*—when person injured in vestibule of store constituting public nuisance not a pedestrian. A customer who was injured by a door swinging back against him as he was leaving a store vestibule cannot be held to have been a pedestrian by reason of the fact that the vestibule encroached on a street so as to constitute a public nuisance.
    4. Negligence, § 93*—contributory negligence of person injured by door while leaving store. A customer who was injured while leaving a store by a door swinging back against him, held not to have been guilty of contributory negligence.
    Niehaus, J., took no part in this decision.
    Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the October term, 1914. • Rehearing denied June 22, 1915.
    Reversed with finding of facts.
    Opinion filed March 9, 1915.
    Stevens, Miller & Elliott, for appellant; J. C. M. Clow, of counsel.
    Mansfield & Cowan, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

This is an appeal from a judgment against appellant, Schipper & Block, Incorporated, in favor of Frances Sehnert, appellee, in an action on the case brought by her to recover for an injury to her person resulting from a collision with a swinging door.

Appellant operates a large department store on Adams street in the city of Peoria, Illinois, the main entrance to which is through a vestibule or lobby extending parallel with the lot and street line about twenty feet, and the other way from the store proper to the street, about fifteen feet including in the inclosure a strip of the street about three feet wide. At each end of this entrance way, on the street, there is a pair of heavy swinging doors equipped with springs. The space occupied by these swinging doors, at rest and in motion, is mostly, perhaps entirely, outside the lot line and in the street. There are two pairs of similar doors in the inside of the vestibule leading to the store proper. The whole entrance way is inclosed, and in cold weather heated, affording a comfortable place for customers of the store to wait for street cars or other conveyances.

Appellee went to the store December 31, 1906, as a customer, and as she was leaving and about to pass out of one of these outside doorways some third person passed rapidly out, opening the one of the double doors nearest the building and letting it loose so that it came back with force and in some way set the other of the pair, the companion door, in motion so that it suddenly came back and struck appellee a violent blow on her right thigh and leg, knocking her down. She was soon able to go home unattended, but later it developed that the injury was very serious, and the result is paralysis, from which she became almost helpless.

This suit was begun April 29, 1910, and was before this court, on appeal, on questions arising on the pleadings. Our opinion is reported in 168 111. App. 245. The declaration before this court at that time charged in 'different counts that the doors were improperly constructed and hung, that appellee was a pedestrian using the streets, and also that the doors were outside the lot line and in the street. We held that the declaration and different counts thereof stated a cause of action, but did not undertake to say what significance, if any, should be given the fact that the doors were in that part of the building1: outside of the lot line in the street. Counsel unite in saying that since the case was remanded it has been three times tried by a jury. The first and second trial each resulted in a verdict for the defendant and a new trial granted by the court because of some error of law. The record before us shows a jury trial with verdict and judgment of $10,000 for the plaintiff. There were two additional counts to the declaration filed just before the last trial, in which the cause of action is based entirely on the charge that the lobby way and doors extended beyond the lot line, and that the plaintiff was about to proceed from the store and through the lobby way and was injured by the swinging door. There is no claim in these last two counts of improper construction or hanging of the doors, and no claim that plaintiff was a pedestrian using Adams street for purposes of travel. The case seems to have been tried in the court below on the theory of these last two counts, and no proof offered by plaintiff of improper construction or hanging of the doors; and there is no evidence that can be construed in support of an allegation that appellee was at the time in question a pedestrian walking along the street. If she had been, and while so using the street one of these doors had swung against and injured her, quite a different case would be presented. Neither is there any room for presumption or inference that the location of the doors three feet over the street line had any influence whatever on the happening of the accident. Appellee argues that if the doors had not been located on the street the accident would not have occurred in the street, which is true, but it would have occurred three feet from the street line, and the inquiry is whether the fact that it occurred in the street is of any importance in determining the issues here.

Appellee’s contention is, that the part of the lobby including the doors extending over the street line is a public nuisance because it is an encroachment on a public street; that it is a nuisance per se; that it was negligence on the part of appellant to maintain it there; that it was negligence, because in violation of the statute; that a nuisance is of itself negligence, and if injury flows from it the author is liable; that in case of a nuisance in a public highway it is not material whether such nuisance is properly or improperly constructed or of what material it is made, the author of the nuisance is liable for maintaining: it whether it is properly or improperly built; and she cites a great number of authorities supporting these statements of the law of nuisance, and says apparently in answer to appellant’s statement that she offered no proof in support of the allegations that the doors were improperly constructed and equipped, that it is immaterial whether, they were.or not, and it is sufficient that appellant was maintaining a nuisance át this time and place, and that had it not been for the presence of this nuisance the accident would not have happened, therefore the presence of this nuisance at that time and place was the proximate cause of the injury.

The general propositions of law stated by appellee are in the main correct and long established, but in our opinion they do not apply to the situation we are considering, and a rule and application such as is contended for by appellee would lead to absurd results. There are a great many examples of public nuisances, among which are numerous cases of buildings encroaching on public streets and alleys. It is perhaps common knowledge that many factories are so built, especially with reference to public alleys in our smaller towns and cities. It is a matter of very common occurrence that barns and outbuildings encroach upon and sometimes entirely obstruct public alleys. Suppose the building in question here had been a factory encroaching on a public street or alley and there had been machinery located in part outside and in part inside of the lot line, it would hardly occur-to anyone that the liability of the owner for accident occasioned by the use of the machinery could depend upon or be in the least influenced by the question whether the accident occurred one side or the other side of the street line over which the building projected. Any building protruding without authority into a public street or alley is, so far as it encroaches, a public nuisance, and the owner while maintaining it there is acting in violation of the statute, and such violation of statutory law is often said to be negligence per se. And any one maintaining a building anywhere on or off the street, with swinging doors at the entrance and between the rooms, may reasonably be presumed to foresee that injury may result to the person of some' one from the use of the doors, either through the carelessness of the person using them, or the carelessness of another, or from pure accident; not probably so serious an injury as here occurred, but quite likely an injury to the hand or fingers, perhaps of a child, caught and crushed in closing the door. The person in control of the building might or might not be guilty of some negligence in the construction, equipment or operation of the door, making him liable for the injury; but it would be entirely immaterial whether the door was or was not in that part of the building that encroached on the street, because the violation of law, the wrongful act, of maintaining the encroachment on the street, had nothing whatever to do with pinching the fingers in the door. Appellee insists that it is of no consequence that this accident would have occurred just the same had the doors in question been on the lot line; but that consideration seems pertinent as a factor in the problem to be solved, whether maintaining the doors within the street boundary had any influence on this accident. That to sustain an action for damages for a personal injury on the ground of negligence of the defendant, it must be shown that there was causal relation between the negligence charged and the injury, whether the negligence arose from the neglect of the duty imposed by statute or ordinance, or some other duty, would seem too clear to require either illustration or authority; but courts have many times found it necessary to state that proposition, as will be seen by reference to the authorities cited in 29 Cyc. 439, under the author’s statement of the rule in relation to the violation of a statute as negligence, as follows:

“Although the violation of a statute is held to be negligence per se there must be a causal relation between such acts and the injury to render defendant liable, and such violation must be the proximate cause of the injury. And in this respect it must. appear that compliance with the ordinance would have prevented the injury.”

Our Supreme Court said in Gibson v. Leonard, 143 HI. 182, on page 193:

“It is a rule of law too well settled to require the citation of authorities, that where the breach of duty alleged is not the cause of the injury received, there can be no recovery. Sections 1056 and 1057 of the ordinances were here wholly immaterial. The absence of either a fire-proof shaft, or of metal doors in the shaft, or of catches or fastenings on the doors which could only be opened on the inside of the shaft and were entirely under the-control of the operator, did not cause or contribute to the personal injury that was received by appellant.”

The court said in Harmon v. Peoria Ry. Co., 160 Ill. App. 458, on page 464, in discussing a charge of negligence based on the violation of an ordinance: “It does not appear that the violation of that ordinance was the proximate cause of appellee’s injury; so far as the evidence shows the accident might have happened in the same way had the car stopped at the far crossing.”

Negligence arising from the violation of a statutory law or an ordinance is of no avail either as a ground of action or defense unless it be shown to be the cause of the injury. Latham v. Cleveland, C., C. & St. L. Ry. Co., 179 Ill. App. 324, and authorities there cited.

It is also the law that only such persons as are intended to be benefited or protected by a statute can rely on a violation of that statute as giving a cause of action. Gibson v. Leonard, supra. In actions like this it is necessary to aver and prove the existence of a duty on the part of defendant to protect the plaintiff from the injury complained of, and a failure to perform that duty. McAndrews v. Chicago, L. S. & E. Ry. Co., 222 Ill. 232. The negligent act of the defendant relied upon for a recovery here is in permitting this vestibule to remain an encroachment on a public street. It is clear that appellant owed the public, and perhaps every member of the public using the street, a duty not to encroach on the street, and the violation of that duty might be negligence of which a plaintiff could avail in an action for injury while using the street as a pedestrian; but we cannot see that appellant owed its customers, employees and others rightfully within its. store, a duty to not encroach upon the street with the building in which they were employed or invited to trade.

We are of the opinion that the violation of duty complained of affords appellee no ground for recovery. She says in her brief here that she has not abandoned the claim that the doors were improperly constructed and hung, and suggests that inferences to that effect may be drawn from the proof as to the occurring of the accident. We do not see how such an inference could be drawn from that proof, and if it be true that there is ground enough for that inference to sustain the action of the court in refusing to direct a verdict for defendant, still we are clearly of the opinion that there is no evidence of sufficient importance to warrant a judgment on that ground. Appellee does not contend, and as we have said before, we see no ground for contention, that she can be considered a pedestrian using the street at the time of the accident. Therefore it follows that in our opinion the evidence discloses no cause of action.

Appellant argues that appellee was not in the exercise of due care for her own safety; that she was familiar with the place and knew the doors were in continuous use and should have been on the lookout for such an occurrence. We are not disposed to hold her guilty of contributory negligence; she was acting as prudent people might, and very likely would, under like circumstances. There is little to be said about the facts of the occurrence in addition to the foregoing brief statement, in which counsel do not materially differ. The vestibule and doors were properly constructed and such as might well be maintained by a prudent merchant having in view the safety and convenience of his customers. Appellee was lawfully using the lobby way as a customer of the store. Even the third person who rushed through the doorway and caused the accident may or may not have been guilty of negligence depending upon the circumstances; she has never been discovered and her identity is unknown. We feel compelled to reverse the judgment solely on the ground that appellant is not shown guilty of any negligence contributing to the injury complained of. As there have been three jury trials we presume no further facts of importance could be shown on another trial, therefore we do nbt remand the case.

jReversed with finding of facts.

Mr. Justice Niehaus took no part in this decision.

Finding of facts. We find that appellant was not guilty of any negligence causing the injury to appellee complained of.


source: Caselaw Access Project

author: Mr. Presiding Justice Carnes

license: Public Domain

text:
    Modern Woodmen of America, Complainant, v. Mary J. Nyquist, Appellee. Jennie Nyquist, Appellant.
    Gen. No. 6,038.
    Insubance, § 830

      —when named beneficiary is trustee for insured’s widow. Where a man obtained a certificate of insurance in the name of his mother because the rules of the insurer prohibited the naming of an intended wife as beneficiary, and after his marriage, without a change of beneficiaries, the certificate was delivered to his wife and she thereafter paid the dues and assessments until his death, when the mother obtained the certificate by promising to collect the money and give it to the widow, held on the insurer paying the money into court under an interpleader, that the mother was a trustee for the benefit of the widow.
    Appeal from the Circuit Court of Rock Island county; the Hon. Frank D. Ramsay, Judge, presiding.
    Heard in this court at the October term, 1914. Rehearing denied June 11, 1915.
    Reversed and remanded with directions.
    Opinion filed March 9, 1915.
    Searle & Marshall, for appellant.
    J. B. & J. L. Oakleaf, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

The Modern Woodmen of America, a fraternal benefit society, filed its bill of interpleader to determine the conflicting claims of the appellant, Jennie Nyquist, and the appellee, Mary J. Nyquist, to the amount due on a benefit certificate ($1,000) issued to Edward Nyquist, the husband of appellant and son of appellee. Each of the claimants answered the bill, and the complainant paid the money to the clerk of the court and* was released and discharged from further liability, and costs awarded it to be paid out of the money so deposited; and dismissed from further participation in the case.

The cause was referred to the master in chancery to take evidence and report his conclusions of law and fact. He took the evidence and reported his finding of facts with his conclusion therefrom that appellee, the mother of deceased, was entitled to the fund. Appellant filed objections before the master and exceptions before the court, which were overruled. Appellee filed no objection or exception. A decree was entered confirming the master’s report and ordering the fund, with interest accrued and to accrue, to be paid to appellee, after deducting therefrom the taxable costs of the proceeding, which the decree recites is by agreement of the parties to be paid out of the fund. This appeal is prosecuted to reverse that decree. There is little if any controversy about the facts, and the question is whether the court erred in the conclusion drawn from them.

It appears that in the spring of 1908, Edward Nyquist, the insured, was engaged to be married to Jennie Coopman, and told her he would join The Modern Woodmen of America and take a benefit certificate in which his mother would be named as beneficiary because he understood the rules of the company would not permit an intended wife to be so named. On May 8, 1908, he took out a certificate for $1,000 in which his mother was named as beneficiary, and on May 29, 1908, he married appellant. He had the certificate in his possession until his marriage and immediately thereafter delivered it to his wife, telling her it was hers. She kept it in her possession until after he died. They lived together as husband and wife until his death by suicide September 27, 1911. Two children, twins, were born to them and still survive. He often discussed the matter of having the name of the beneficiary changed to that of his wife, but supposing that it would cost about $5, and being in straightened circumstances, and not able to pay that sum, he deferred making the change. The master finds that the wife, appellant, paid all dues and assessments levied by the society. Two letters were found in his bedroom on the night of his death in his handwriting, in one of which he says to the Woodmen: “Please pay my insurance to my wife, as she is supposed to have it. I have had it written in my mother’s name and never got to have it changed. I hope this will be enough to settle this matter without any trouble.” And in the other to his wife he says: “I have written to the Woodmen and asked them to give you my insurance without any trouble.”

A day or two after his burial his mother and widow met, and the mother asked for the benefit certificate, stating that the Camp clerk wanted her to bring it to him and added: “Don’t worry Jennie, I will get the money and give it to you.” She was given the certificate, and afterwards furnished proofs of death and claimed the money for herself. The widow also claimed the money, and the company filed this bill. The master finds that it is undoubtedly true that the insured meant from the beginning that his wife should receive this money in ease of his death, and that she delivered the certificate to the mother with the understanding that it should be collected and the money paid to the widow; and that the mother positively agreed and promised to do so. And while the master does not specifically so find, it is a fair inference from the evidence that the mother from the first knew the purpose and object of her son in taking the certificate in her name.

Under the provisions of the certificate and the rules of the company, the insured was permitted to change the beneficiary in a prescribed manner, and not otherwise. We assume that the company could not have been compelled to pay the widow this sum, because there was no change of beneficiary that the company was bound to recognize.

But it is now entirely immaterial to the complainant, the company, what is done with the money. It would not be material here, if it were true, that the company could have successfully defended against either or both of the claimants. The money is in court as the result of an effort the insured made before his marriage to provide for his intended wife. There is some force in her counsel’s contention that it was a provision made for her in consideration of marriage. He had his mother named as beneficiary because under the rules of the order his intended wife was not permitted to be so named. The transaction was somewhat analogous to placing the title to real estate in the name of one person for the benefit of another. Appellant married him with the expectation that she would receive the benefit of this insurance; she lived with him and bore him children under the belief that she was so protected; and while they were so unfortunate and poor that he thought he was unable to pay the supposed fee of $5 necessary to procure a substitution of his wife as a beneficiary, she paid the dues and assessments, as the master finds. Appellee’s counsel say that she must have used money furnished by her husband for that purpose, and if they are right and she did manage to save that little amount out of his meager earnings, in the condition she was in, she is entitled to much consideration for so doing. She had the policy in her possession during his lifetime, and, aside from -considerations of technical law, is it quite plain that she is entitled to the proceeds. The mother got possession of the certificate under a promise that she would collect the amount due and pay it over to her. The master found that there was no consideration for that promise; but the possession of the paper was of some benefit to the mother in prosecuting her claim, and its possession would have been of some advantage to the widow in resisting the mother’s demand upon the company. A benefit to the party promising, or a loss or detriment to the party to whom the promise is made, is a sufficient consideration to support a promise.

The master much relied on the case of Gordon v. Gordon, 117 Ill. App. 91, in support of his conclusion that the fund belonged to the mother. It is there held that the change in the beneficiary named in a benefit certificate must, ' even where the question arises upon a bill of interpleader, filed by the society, be made in the manner provided by the certificate; one of the several exceptions to the rule being in cases where it is beyond the power of the insured to comply with the regulations. The master found in this case that the insured was unable to pay the sum that he supposed necessary to procure the change. It appeared in the Gordon case, supra, that the society had recognized' the beneficiary named in the certificate, and made btm an advance payment. But if we assume the law as stated in the Gordon case, and if none of the above mentioned distinguishing features are sufficient to take this case out of the rule there announced, still we are of the opinion that because the certificate was first taken in the name of the mother for the benefit of the wife, and the mother was probably then aware of that fact, and acquiesced in the arrangement, and certainly got possession of the certificate under the promise that she would collect the proceeds and pay them to the wife, she was in the attitude of a trustee for the wife, under a duty to execute the trust, and that these considerations distinguished the two cases. It is said by the same court, in an opinion by the same judge, quoting authorities, that beneficial interests in benefit certificates may be transferred in equity, and courts of equity will protect equitable beneficial interests. Conner ,v. Conner, 145 Ill. App. 608.

We are of the opinion that the court erred in decreeing the money to he paid to Mary J. Nyqnist, the appellee, and that it should have been ordered paid to Jennie Nyqnist, the appellant, with the exception of court costs to be paid from the fund, which the decree finds were ordered so paid by agreement of parties. The decree is reversed and the cause remanded with directions to enter a decree finding that the fund belongs to and ordering its payment to Jennie Nyquist, subject to payment of costs.

Reversed and remanded with directions.


text:
    Lettie B. Atkinson, Appellee, v. National Council of Knights and Ladies of Security, Appellant.
    Gen. No. 6,045.
    1. Insurance, § 336

      —when insurer cannot dispute truthfulness of statements inserted in application by agent. An insurance company cannot dispute the truthfulness of statements in an application for insurance, notwithstanding that they are expressly made warranties and representations as the basis for the issuance of a policy, which were inserted by its agents without fraud or collusion on the part of the applicant.
    2. Insubance, § 338*—who agent within rule binding insurer by false statements inserted in application by agent. A regular examining physician • for an insurance order and a local body thereof, held agents of the supreme body in obtaining an application for insurance, in which, without fraud or collusion on the part of the applicant, they inserted false statements as to his health and family history.
    3. Insubance, § 338*—when insurer estopped by false statements as to health of assured inserted in application by medical examiner. Where an agent of an insurance society together with its regular examining physician, with full knowledge of all the facts, falsely stated in an application for insurance, without fraud or collusion on the part of the applicant, that he was in good health, that he had not received medical treatment during the preceding five years, or submitted to surgical operations, and that his father died of appendicitis when in fact he had consumption, held to estop the insurer from asserting the falsity of the statements, notwithstanding that the applicant had previously been operated on for the removal of a growth from his head and contemplated a second operation therefor at the date of the application, which was performed before the delivery of the policy, and which subsequently developed into a cancer which caused his death.
    4. Insurance, § 704

      —when error in sustaining demurrer to answer alleging false warranties and representations in application cured t>y instructions. The fact that a demurrer was sustained to an answer in an action on a policy of insurance, alleging the falsity of warranties and representations in the application therefor, held not prejudicial to the defendant, where the latter Was given the full benefit of such answer by an instruction to the effect that the plaintiff could not recover if his answers were not true, unless the defendant’s agents were aware of their falsity at the time they were made.
    5. Trial, § 113*-—when right to malee opening and closing argument waived hy defendant. The denial of a motion to permit the defendant to make the opening and closing argument to the jury in an action on a policy of life insurance, held not erroneous where the defendant, by its conduct at the trial, left it to the plaintiff to open the case in introducing evidence.
    Appeal from the Circuit Court of Stephenson county; the Hon. Richard S. Farrand, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    'Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 9, 1915.
    A. W. Fulton and R. R. Tiffany, for appellant.
    Louis H. Burrell and Harold D. James, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

Eugene M. Atkinson, twenty-nine years old, the husband of Lettie B. ’Atkinson, the appellee, at the instance of T. F. Barto, district manager of appellant, National Council of the Knights and Ladies of Security, applied for membership in the Freeport Council of that order, and was afterwards examined by Dr. H. D. Wilson, an examining physician for appellant, February 12, 1911. A written application for a beneficiary certificate containing a great number of questions and answers as to the health and family history •of the applicant was filled out by Dr. Wilson and signed by Atkinson. The certificate in which appellee was named as beneficiary, issued, and was delivered to the applicant by Barto March 4, 1911. The insured died of cancer January 18, 1912. Proof of death was duly made and payment refused. The amount stipulated in the contract was $2,000, with certain provisions for deductions, and it is agreed that the amount due, if anything, was $1,541. This action was brought to recover that amount, and defended on the ground that there were false statements in the application barring all right of recovery, to which defense the plaintiff answered that the examining physician was responsible for the alleged false answers and that the truth as to the matters about which those statements were made was known to appellant when it issued the certificate, and therefore it is estopped from making that defense. A jury trial resulted in a judgment for the full amount claimed, from which judgment this appeal is prosecuted.

There was evidence tending to show that the father of the insured died of consumption; and there is no question but the insured had a bunch on his head that had been removed by surgeons before the date of the application, and there was an open sore on his head at the time; that there was another operation on the day that the certificate was delivered to him, and that this sore developed into the cancer that caused his death, or perhaps more properly speaking, furnished the soil for that cancer.

In the application the cause of death of the father of applicant is written “appendicitis.” The answer “No” was written after the question: “Have either of your parents, your wife, or husband, children or any of your uncles, aunts, brothers or sisters, or any other blood relative been afflicted with Consumption, Scrofula, Cancer, Insanity, Epilepsy, Grout, Rheumatism, or any other hereditary disease?”

Question 10 of its answers was as follows:

“Have you now or have you ever had any of the following diseases or symptoms of any disease of the following named organs? (Answer yes or no to each:) Bronchitis, no; Cough (habitual), no; Consumption, no; Dropsy, no; Diarrhoea (chronic), no; Enlarged glands, no; Fistula, no; Lungs (diseases of), no; Open sores, no; Pleurisy, no; Palpitation of the Heart, no; Pneumonia, no; Sunstroke, no; Skin Disease, no; Tumors of any kind, no; Typhoid Fever, no; Veins (diseases of), no; Varicose Veins, no.”

The answer “No” was written to the question:

“Have you had any illness, constitutional diseases or injury during the past five years requiring the services of a physician or surgeon?” And the following question was also answered “No:”
“Have you undergone any surgical operation, or have you any bodily malformation or weakness?”

It was provided in the beneficiary certificate1 that the application was made a part thereof and that each and every part should be held to be a strict warranty the same as if fully set forth in the certificate. And that:

“If said application * * * shall not be true in each and every part thereof, then this Beneficiary Certificate shall as to said member, or said member’s beneficiary, be absolutely null and void.”

The evidence as to the application of the insured for admission into the Council and for a beneficiary certificate, introduced by plaintiff, is in substance, that before the application in question appellee was a member of the Council and T. F. Barto was connected with appellant as district manager, with duties to appoint local deputies and to assist them and to assist the members in securing business and to deliver policies under special dispensation, which meant to deliver them to traveling men that are not at home regularly, or to any applicant where it would be inconvenient for him to attend the council meeting (this is Mr. Barto’s description of his office and duties stated by him as witness for appellant). He asked why the husband of appellee did not apply for membership, and was told by members of the council that he had a growth on the back of his head; that it had been operated upon twice and another operation was intended, therefore he supposed he could not be admitted to the order. Barto then saw Atkinson, who was apparently in good health, and told him he was a proper subject for insurance and wrote an application for membership in the Council and signed Atkinson’s name to it. This was favorably acted upon and Barto sent Dr. Wilson to examine Atkinson at his home, which was done in the presence of his wife, the appellee. The doctor was there told of the growth on the head and of the operations upon it and concluded it was an innocent growth that did not amount to much (and this seems to have been the opinion of other doctors who had seen it before that time), and wrote the answers in the application before quoted. He was told by the applicant that he was fifteen years old when his father died, that he did not know what he died of, but it was said to be a complication of diseases, whereupon the doctor wrote “appendicitis,” in the blank left for the name of the disease; and while the evidence makes it probable that he died of consumption, it also appears that the fact was not generally understood in his family; that he was a frail man, and the “complication of diseases” theory was adopted by some if not all of his relatives and friends, and that his son, the insured, was not living at home at the time of his death. The doctor asked some other questions of the applicant, and said he skipped some that were printed in the blank, because they were of no consequence, and having filled in all the blanks of the application, told Atkinson to sign it, which he did without reading it. He sent a statement of his own medical examination to the company in which he certified that he made a thorough physical examination of the applicant, and his statements as to bodily conditions are in accordance with those in the application. Atkinson was accepted, and the certificate issued and Barto, as a part of his duties as agent of appellant, took it to Atkinson’s home, where he found him with his head bandaged, and asked what was the matter, and Atkinson replied that he had another operation that day to remove the growth on his head, Barto said that he would soon be well, and delivered the certificate. Appellant collected and retained dues and assessments provided in the contract up to the time of the death. This testimony as to the acts of Mr. Barto and Dr. Wilson is in great part denied by them; but the question was fairly put to the jury and they apparently believed the plaintiff’s witnesses. It is quite clear that no one supposed the growth was malignant at the time of the application, and the jury may well have concluded that the doctor thought.it a trifling matter, not worthy of notice, and its former removals not of enough importance to be dignified by the name of surgical operations, and that he wrote the answers in good faith; and even if the applicant had known what answers were written he might with the greatest honesty and average intelligence not have known they were wrong. There were many questions in the application that intelligent laymen could not answer without the advice of a physician, and some of them that skilful physicians would no doubt not agree in their answers. For instance, in the above quoted questions, the applicant was required to answer “Yes” or “No,” whether any of his blood relation had been afflicted with consumption, cancer, scrofula, etc., or any other hereditary disease. It is common knowledge that post-mortem examinations disclose tuberculosis scars in the lungs of many persons who were never suspected of being afflicted with consumption, and that many people have died of internal cancer that only a post-mortem would reveal. Laymen have sores and talk about scrofula, which may or may not be that disease; and the doctors disagree as to what diseases are hereditary, and very few laymen understand what is meant by the word “hereditary” as applied to disease. Again the applicant was required to answer “Tes” or “No,” not merely whether he had, or ever had, numerous diseases named, but also whether he had, or ever had, symptoms of any disease of the lungs, heart or veins. Who knows what' those symptoms are? It is doubtful whether the most learned physician could accurately answer the questions by “Tes” or “No.” In the case of any applicant for insurance, the answer to many of the questions on the doctrine of chances would be “Tes.” Tet it is likely that such an answer would prevent insurance. To assume that insurance companies soliciting insurance expect answers to such questions to be accurate, and that any mistake or misstatement, whether knowingly made or not, material to the risk or not, should furnish an absolute defense to a suit on the contract, leads to manifest absurdities and a violation of the rules of common sense and common honesty that are presumed to govern mankind in their dealings with each other. Courts have seldom permitted an extreme application of that doctrine. Berner v. Brotherhood of American Yoemen, 154 Ill. App. 27, and authorities there cited and discussed.

It has thus become a general rule of law that an insurance company cannot dispute the truthfulness of false statements written in the application for insurance by its agent without fraud or collusion on the part of the applicant, even though such statements are expressly made warranties on the basis of which the policy is issued. 25 Cyc. 803; Provident Sav. Life Assur. Society v. Cannon, 201 Ill. 260; Johnson v. Royal Neighbors of America, 253 Ill. 570; Turner v. Modern Woodmen of America, 186 Ill. App. 404. We said in the Turner case, supra: “Under the rules of law prevailing in this State, the regular examining physician of such a society is the agent of the society, and the society is bound by his acts within the scope of his authority, notwithstanding an express stipulation in the application that the applicant makes him his agent.” The record shows that Dr. Wilson was a regular examining physician of appellant and we think, under the authority of Johnson v. Royal Neighbors of America, supra, T. F. Barto must also be held to have acted as an agent of appellant in what he did in the matter. The Council was an agent of appellant in making this insurance contract (Turner v. Modern Woodmen of America, supra); and the evidence tends to show that it had knowledge of the physical condition of the insured at the time the certificate was issued, and afterwards when dues and assessments were collected.

We are of the opinion that under the authority of Dromgold v. Royal Neighbors of America, 261 Ill. 60, and the cases there cited, the agents of appellant, acting in the matter of this contract of insurance and in the collection of assessments and dues thereon, were acting sufficiently within the scope of their authority to, by their acts, heretofore recited, estop appellant from availing itself of the defense attempted in this suit; and that this is true whether or not we regard the local council as having sufficient knowledge of the facts to make its acts, as a body, binding on appellant as an estoppel.

There is much controversy in the arguments here whether the statements in the application are warranties or representations; the practical difference being that if warranties, it is unimportant whether or not they are material to the risk. Appellant pleaded these answers, in different pleas, as warranties and as representations, and the court sustained demurrers to those pleas in "which they were relied on as warranties, and error is assigned on his action in so doing. But in his instructions to the jury he told them if the answers were not true no recovery could be had on the certificate and they must find for the defendant, unless they further believe from the evidence that at the time of making said application the company or its agent or agents had knowledge of the facts concerning which the answers were made. Even if the answers in question should be held warranties, the court in instructing the jury, in substance, that they were material to the risk and required as strict proof as if they were warranties, gave appellant all the substantial advantage in the trial of the case it would have obtained had the ruling been otherwise on the demurrer to its pleas; at least the error, if any, was not of -sufficient importance to warrant a reversal on that ground.

At the close of all the evidence the defendant asked to open and close the argument to the jury, and'assigns error that the court refused that request. It had admitted before the introduction of evidence “that the plaintiff has a prima facie case, and all they need to do in the first instance is to introduce the contract of insurance and proof of loss.” This left appellee to open the case in introduction of evidence, which she did; and whether under the pleadings she was compelled to do so or not, appellant cannot complain that the court at its suggestion treated the issues as requiring proof in the first instance by the plaintiff; and having conducted the trial on that theory to the close of the evidence, it was not error to refuse the request. 38 Cyc. 1304.

We find no substantial error in the introduction or rejection of evidence, or in giving, refusing or modifying instructions. There was conflict of evidence on material facts, but no preponderance in favor of appellant that warrants this court in reversing the judgment on the ground that the verdict was against the evidence.

Finding no reversible error in the record the judgment is affirmed. -

Affirmed.


text:
    Anthony O’Grady, Appellee, v. Chicago & Joliet Electric Railway Company, Appellant.
    Gen. No. 6,050.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed with finding of facts.
    Opinion filed March 9, 1915.
    Statement of the Case.
    Action by Anthony 0 ’Grady, plaintiff, against Chicago & Joliet Electric Railway Company, defendant, to recover damages for injuries sustained by being struck by a car operated by defendant. From a judgment for plaintiff, defendant appeals.
    The facts disclosed by the evidence are that defendant operates a street car line extending westerly from the business portion of Joliet to and beyond the city limits. It is on McDonough street where it crosses Raynor avenue at about right angles near the outskirt of the city; and there is a turnout or passing track 365 feet long, constructed in the usual manner, extending each way from Raynor avenue. In passing, the cars turn to the right, westbound cars using the north track and eastbound cars the south track. . The cars stop at the far side of the street to receive and discharge passengers. A westbound car would, under the practice, stop at the west side of Raynor avenue for that purpose.- Plaintiff, a man about seventy-eight years old, was in the evening of May 26, 1912, a passenger on a car going west on McDonough street, and wished to alight at Raynor avenue, and so informed the conductor. Plaintiff claims that the car did not stop at Raynor avenue, but did stop about 150 feet west of the avenue, and that he got off the car there, which was on the north track, and went around' the east end of the car towards the south, and in doing so got onto the south track and was struck by an eastbound car that was running without signal or warning, and dragged back the whole distance of the avenue, about 150 feet, and received injuries to his face, causing profuse bleeding, and to his clothing. Defendant admits the request to stop at the avenue, and that plaintiff was injured, but claims that the conductor before reaching the avenue gave the signal, one bell, that would warn the motorman to stop at the far side of the avenue; that plaintiff came out and stood on the back platform with him and a passenger named Calkins, and when the car was within fifty to seventy-five feet of the east line of the, avenue, and running four to six miles an hour, plaintiff got off and fell upon the street in so doing; that the conductor then gave the emergency stop signal, three bells, and the car was stopped at the east line of the avenue; that there was another car, eastbound, standing still at the time on the south track near the west end of the passing, track, about seventy-five feet west of the avenue.
    Plaintiff called at a witness Mabel Palmer, a young lady who was walking west on McDonough street. She had come onto McDonough street from the next street east from Raynor avenue and says as she approached Raynor avenue she saw two cars standing on McDonough street, one just east of the avenue and the other about half a block west of the avenue. She saw. a number of people near the east end of the avenue, and on reaching the place saw plaintiff with his face bleeding and people brushing off his clothes. She is quite sure that the car she speaks of, near which plaintiff was, east of the avenue, was, on the south track. By way of impeaching her testimony it was proven by the court reporter that took her testimony at the former trial, that she then said that she did not notice which track that car was on. This is all the testimony introduced by plaintiff showing or tending to show that he was struck by an eastbound car and dragged back to the avenue.
    Defendant introduced as witnesses the conductor and motorman of the car on which plaintiff was riding, and the passenger Calkins who was on the back platform of that car. The conductor arid Calkins both testify that plaintiff stepped off the car while it was running and before it reached Raynor avenue and fell in so doing. The motorman testified that he first got the one-bell signal before reaching the avenue, which meant that he was to stop on the far side of the avenue; that before he reached the avenue he got the three-bell signal, which meant to stop at once; that he succeeded in stopping with the front end of his car about even with the east line of the avenue; that he went back and saw the conductor raising plaintiff from the ground. The conductor and motorman of the car standing west of the avenue testify that their car was on the south track about 75 feet west of the avenue waiting for the other car to pass. The conductor went to the westbound car which was standing just east of the avenue and found plaintiff there with these people around him. They both say their car struck no one and injured no one. Two or three of these witnesses say that plaintiff said he was an old railroad man and thought he could get off, which statement- he denies.
    E. Meers, for appellant.
    F. A. Hoover, for appellee; Lagger & Blatt, of counsel.

      Abstract of the Decision.
    Cabbiebs, § 476

      —when evidence insufficient to support verdict in action for injury to passenger. Evidence examined in action to recover for injuries to passenger while alighting and held insufficient to support verdict for plaintiff.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.


author: Mr. Justice Dibell

text:
    A. Silver, Plaintiff in Error, v. Chicago & Northwestern Railway Company, Defendant in Error.
    Gen. No. 5,979.
    (Not to he reported in full.)
    Error to the Circuit Court of Boone county; the Hon. Charles H. Donnelly, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed March 9, 1915.
    Statement of the Case.
    Action brought by A. Silver against the Chicago'& Northwestern Bailway Company for the destruction of sheds adjoining a street in the city of Belvidere, on Vhich the defendant maintained switch tracks. From a judgment in favor of the defendant, the plaintiff appeals.
    The evidence for plaintiff showed that in the afternoon of April 13, 1912, the sheds caught fire and that the plaintiff’s property was thereby injured; that shortly before the fire a switch, engine had passed back and forth on the street within a few feet from the sheds, hauling or pushing some freight cars; that the engine was laboring heavily, with its wheels slipping, and that sparks were- thrown therefrom onto the roof of and set fire to the sheds.

      Abstract of the Decision.
    1. Railroads, § 941

      —instruction as to burden of showing that fire was caused by locomotive. An instruction in an action against a railroad company for the destruction of property by fire, caused by sparks from a locomotive, which places the burden of proof on the plaintiff to show not only that the fire was caused by the defendant, but also that either the engine was not in a reasonably safe condition or was not managed with reasonable care and skill, deprives the plaintiff of the benefit of the Act of 1869 (J. & A. IT 8891) declaring that the fact that a fire was started by a locomotive shall be taken as full prima facie evidence to charge the defendant with negligence.
    2. Railroads, § 941*—instruction as to sufficiency of evidence to show that fire was set by sparhs from locomotive. An instruction in an action against a railroad company for the destruction of property by a fire caused by sparks from a locomotive, that there was no proof that the engine in question was not provided with the most approved spark arrester, or that the engine and its appliances were not in good condition, or that it was not handled by a competent engineer, held not sustained by the evidence.

      Defendant’s evidence tended to show that, in doing its switching on the day of the fire, the engine in question did not go near the plaintiff’s property; and also that a gale of wind was blowing from a direction which would in any event have prevented sparks from the engine being carried in that direction; that the engine was properly equipped, and that it was operated by a competent engineer. There was proof that this switch engine, drawing comparatively light loads, had thrown hot sparks a number of times within a few weeks before and shortly after the fire.
    W. C. De Wolf and Charles W. Ferguson, for plaintiff in error.
    John A. Russell, for defendant in error.

      See Illinois Notes Dieest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

3. Railboads, § 932*—sufficiency of evidence to show that fire was set by sparks from locomotive. The evidence in an action against a railroad company for the destruction of property by fire caused by sparks from a locomotive, held sufficient to show that the engine in question had emitted sparks when drawing comparatively light loads, both before and after the fire.


text:
    German Investment & Securities Company, Appellant, v. Rock Falls Manufacturing Company, Appellee.
    Gen. No. 5,997.
    1. Gabnishment, § 153

      —when judgment against garnishee bar to claim of third person. Where a garnishee, although disclosing that an indebtedness was claimed by a third person as assignee, permitted a judgment to be taken against him without the latter being given the notice required by section 9, art. IX, ch. 79, Rev. St. (J. & A. 1f1i 6953, 6954), and thereafter without appealing, the garnishee paid the judgment, held that he was not relieved from liability to the assignee.
    2. Sales, § 33*—when evidence shows fraud which prevents title from passing. The evidence held not to show that the purchaser of chattels was guilty of fraud which could prevent the title from passing.
    3. Assignments, § 11*—sufficiency of assignment of account by person doing business in corporate name. An account in favor of a person doing business in a corporate name, held sufficiently assigned, if a personal assignment was necessary, by the signature of “Falls City Lumber Company, by Charles H. Stotz.”
    Appeal from the City Court of Sterling; the Hon. Gael E. Sheldon, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed with finding of facts.
    Opinion filed March 9, 1915.
    J. J. Ludens, for appellant.
    A. A. Wolfersperger, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

The German Investment & Securities Company sued the Bock Falls Manufacturing Company before a justice of the peace, and on a trial had a judgment for $166.63, and the defendant appealed to the city court of Sterling, where there was a trial without a jury upon a stipulation and upon certain documentary and oral evidence, and there was a finding and a judgment for defendant, from which plaintiff appeals.

The Whaley-Warren Lumber Company of Virginia sold a carload of lumber to the Falls City Lumber Company of Louisville, Kentucky, and the latter company sold said carload to the Bock Falls Manufacturing Company of Sterling, in Whiteside county, and the Bock Falls Company received the lumber. The Falls City Lumber Company had long prior thereto a standing written contract with the German Investment & Securities Company of Louisville, Kentucky, by which the securities company agreed to discount-the outstanding accounts of the Falls City Company at certain rates, and, pursuant to that agreement, the securities company discounted this account which the Falls City Lumber Company had against the Bock Falls Manufacturing Company for this carload of lumber and four other bills, and the Falls City company duly assigned said accounts to the securities company and was paid therefor. Thereafter there was correspondence between the securities company and the Bock Falls company, plaintiff and defendant herein, in which the defendant was fully advised of said assignment and was repeatedly dunned for payment, and defendant asked for and obtained from plaintiff a slight reduction in the bill because of an alleged shortage of the lumber in the car. Thereafter the WhaleyWarren Lumber Company sued the Falls City Lumber Company for the value of said carload of lumber before a justice of the peace and garnished the Bock Falls company, and the latter appeared, and there was a trial and a judgment in favor of the plaintiff for the price of said carload of lumber against said garnishee, the defendant herein, and it paid that judgment. It claims that that payment by it is a defense to this suit by the securities company.

Sections 8 and 9 of article IX of chapter 79 of the Revised Statutes (J. & A. ¶¶ 6953, 6954) relating to justices and constables, provides that if it appears that any dioses in action, credits and effects in the hands of a garnishee are claimed by any other person by force of an assignment from the defendant, the justice shall permit such claimant to appear and maintain his right, and if he does not voluntarily appear, notice shall be issued and served upon him in such manner as the justice shall direct; and if the claimant appears he may become a party to the suit and may allege and prove his claim to the property, and such allegations shall be tried and determined; and if such person, so notified, shall fail to appear, he shall be concluded by the judgment. Defendant offered the transcript of that proceeding in evidence, by which it is shown that said garnishee, the defendant herein, appeared and answered under oath that it was indebted to said Falls City Lumber Company in the sum of $166.63, and judgment was rendered against it. The transcript does not show that the garnishee informed the justice that the securities company claimed this account by virtue of an assignment to it. It introduced oral testimony on the present trial that its president did fully advise the justice that the securities company claimed this debt. Appellant contends that that oral testimony of what occurred before the justice was incompetent. We find it unnecessary to determine that question. If the transcript is the only evidence of what there occurred, then the garnishee did not reveal the fact, known to it, that the debt was claimed by another party who was not before the court, and the defendant here has no defense to this suit. We will however assume that that evidence was competent. It then became the duty of the justice to cause the securities company to be notified of the pendency of that suit before proceeding further. No such notice was given and the securities company had no knowledge of that proceeding. It is claimed by the defendant here that, when it made that disclosure, it had performed its full duty, and is released from this claim by that judgment and payment thereof. Hamburg-Bremen Fire Ins. Co. v. Kennedy, 57 Ill. App. 136, and Chott v. Tivoli Amusement Co., 82 Ill. App. 244, are relied upon in support of that position. In those cases the garnishee disclosed the names of other claimants, and they were not notified but the court proceeded to judgment against the garnishee, and he appealed, and it was held that as between the attaching creditor and the garnishee, the latter had performed his duty when he disclosed the name of another claimant, and that the attaching creditor should have caused a notice to be given to the claimant, and that it was error for the justice to proceed until the claimant had been notified and had” an opportunity to appear, and that the justice could not properly proceed further until such notice was given. Under those cases, if the garnishee, Bock Falls Manufacturing Company, had appealed, it would have secured a reversal of that judgment against it, and an order notifying the securities company to present its claim and that claim would then have been litigated if the securities company appeared, and in any event the garnishee would have been protected. The case is no different from what it would be if a defendant is sued by one of two persons whom he knows claim the fund. Undoubtedly lie must either notify the other claimant to appear and protect his rights, or he must file a bill of interpleader. If he permits one of two claimants to proceed to judgment against him and pays the judgment, that can furnish him no defense against a suit by the other claimant, and, if it turns out that the other claimant is the one whom, he legally owes, he is liable to be compelled to pay the debt the second time, because he did not protect himself in the first suit.

It is argued that the Falls City Lumber Company obtained this car of lumber fraudulently and therefore could not sell it to the Bock Falls Lumber Company, and the latter would not owe the former therefor. In fact, the supposed corporation, Falls City Lumber Company, had never been organized, but C. H. Stotz was doing business under that name, but apparently intending to organize a corporation under that name. He did not reveal this fact to the WhaleyWarren Lumber Company when he ordered the lumber. Stotz had been doing business under this name for several years, and there is nothing to show that it was for the purpose of defrauding any one. There is no presumption that a corporation is more solvent than an individual. In" the first letter of inquiry about such lumber, the Falls City Lumber Company said that it could pay for each car by draft as soon as loaded. Stotz became insolvent more than a month later, but this does not prove that he was insolvent when he wrote that letter, nor that he could not pay by draft if one had been drawn upon him when the car was loaded. The seller of the lumber did not obtain any financial statement of the buyer, and did not take the ordinary precaution of sending the bill of lading with a draft attached. The fact that the officers of the selling1 company were indignant when Stotz afterwards became insolvent does not prove that any condition existed which would authorize the seller to rescind the sale for fraud, and the seller did not attempt to rescind the sale. It is argued also that, because the Falls City Lumber Company was not a corporation, plaintiff here has no valid assignment of the account. That assignment is signed “Falls City Lumber Company, by Chas. H. Stotz,” so that if a personal assignment was needed to the securities company, it was so given. Stotz went into bankruptcy, and in the proceedings in the bankruptcy court certain accounts, including the one here sued upon, were held to be the property of the securities company.

As the case was tried below without a jury, and the amount due, if there was a right of action, was stipulated, we see no reason for remanding the case. The judgment is therefore reversed and the judgment will be entered here in favor of the appellant against the appellee for $166.63 and costs. Judgment reversed.

Reversed with finding of facts.

Finding of facts to be incorporated in the judgment. We find that the Bock Falls Manufacturing Company is indebted to the German Investment & Securities Company in the sum of $166.63.


text:
    Pasqualli Lolli, Appellee, v. Spring Valley Coal Company, Appellant.
    Gen. No. 6,004.
    (Not to be reported in full.)
    Appeal from the City Court of Spring Valley; the Hon. W. H. Hawthorne, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed March 9, 1915.
    Statement of the Case.
    Action brought by Pasqualli Lolli against the Spring Valley Coal Company for injuries sustained by the plaintiff while driving a trip in the defendant’s mine. From a verdict and judgment in favor of the plaintiff, the defendant appeals.
    The case was submitted to the jury on counts of the declaration alleging a wilful violation of the statute governing mines and miners.
    The accident occurred in a straight entry or roadway which slightly inclined inwardly towards the face of the mine. ” At the time the plaintiff was driving two mnles tandem to a trip. A chain extended from the center of the forward of the two cars comprising the trip to the center of a bntt stick which was about thirty-four inches in length. The rear mule wore a collar and hames, with tugs extending from the hames on each side of the mule to the ends of the butt stick, and hooked thereon. The front car was partially loaded with props, and several men were in the car going into the mine. The second car was empty. The plaintiff occupied the usual driver’s seat on the left-hand front side of the car, with his legs hanging down in front of the car. The car was without brakes and the plaintiff did not have sprags with which to check its motion. The rails were forty-one inches apart. At the left-hand side of the entry there was a post supporting the roof, about twelve inches from the rail. At this point the rear mule turned around sideways with his rear parts to the left-hand side. The plaintiff claimed that the left end of the butt stick caught on the post, and that his left leg was caught either between the butt stick and the car, or the mule and the car, or both, and that certain bones thereof were broken. The plaintiff claimed that the presence of the post so near the car was a dangerous condition, while the defendant claimed that as the post had been in the same place for three or four years actual use showed that it was not dangerous.
    The second count of the plaintiff’s declaration charged that the mine manager wilfully violated the statute in failing to have the roadway at that place examined by a certified' mine examiner at the times required by the statute, and to cause the examiner to report the dangerous condition in a book provided for that purpose, before the men were permitted to enter the mine on that day. The third count charged that the mine examiner wilfully failed to inspect this roadway and to observe whether there were dangerous conditions; ■ and that he wilfully failed to place a conspicuous mark at the place. The fourth count charged that the mine examiner wilfully failed to make a record of his examination in a book kept for that purpose; wilfully failed to mention in said record the dangerous condition at said timber; wilfully failed to make such record that morning before the miners were permitted to enter the mine; wilfully failed to take possession of the plaintiff’s entrance check and the checks of all others who had to drive trips along’ such roadway, and wilfully failed to give such entrance checks to the mine manager before the men entered the mine that morning. Each count charged that such wilful violations of the law caused or substantially contributed to the plaintiff’s injury.
    Abstract of the Decision.
    1. Mines and minerals, § 86

      —when manager may not rely on examiner’s belief in safety of mine. A mining company cannot escape liability for injuries received by a miner from a dangerous condition in a mine, because the mine examiner honestly concluded that a condition was not dangerous which was, in the opinion of the court and jury, in fact actually dangerous.
    2. Mines and minerals, § 86*—when question whether dangerous condition exists not dependent on judgment of mine examiner. The Question whether a condition in a mine is actually dangerous cannot depend on the judgment of the mine examiner or experienced miners so as to relieve a mining company from liability for injuries to a miner from a condition which, in the opinion of the court or jury, was actually dangerous.
    McDougall, Chapman & Bayne, for appellant; Mastin & Sherlock, of counsel.
    John L. Murphy and Duncan & 0’Conor, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

3. Mines and Minerals, § 185 —when verdict should not be directed for plaintiff in action for injury to miner. An instruction in an action for injuries sustained by a miner from a dangerous condition in a mine, which in fact directed a verdict for the plaintiff if. the jury found that ‘the book containing the mine examiner’s report was kept in an engine room in violation of the Mining Act, held erroneous where the declaration did not allege that such book was kept in the engine room or other improper place.

4. Mines and minerals, § 187*-—when instruction as to miner reading mine examiner’s record of condition of mine erroneous. An instruction in an action for injuries received by a miner from a dangerous condition in a mine, that if such condition existed and the mine examiner wilfully failed to record it in a book kept for that purpose, or wilfully failed to mention it in such record before the miners entered the mine for the day, and the plaintiff was injured by the examiner’s conduct, that it would make no difference whether the plaintiff read or attempted to read such record or was able to read the language in which it was written, held erroneous where the condition of the mine was entered as being safe instead of stating the actual conditions.

5. Mines and minerals, § 182*—when reading by or ability of miner to read examiner’s record of mine conditions may be shown. In determining whether the failure of the mine examiner to examine and record, in a book kept for that purpose, a dangerous condition in a mine, was the cause of a miner’s injury, the jury may consider whether he read or attempted to read the ‘record before entering the mine on the day of the accident, and also his ability to read the language in which it was written.


text:
    Amanda V. Burr, Appellee, v. Royal League, Appellant.
    Gen. No. 6,008.
    Insurance, § 810

      —when subsequent eligibility entitles beneficiary to proceeds of certificate. In an action to recover on a certificate of insurance, it appeared that the application and the certificate named one as beneficiary as the wife of the insured, whereas she was affianced but not married to him and ineligible as beneficiary under the laws of the insurer-. After her marriage to the insured, a change in the laws rendered, affianced wives eligible. The laws of the insurer also provided that a change in beneficiaries could only be made on application to the insurer, but no such application was made by the insured. Held that the beneficiary was entitled to recover.
    Appeal from the City Court of Aurora; the Hon. Edward M. Mangan, Judge, presiding.
    Heard in this court at the October term, 1914. Rehearing denied April 7, 1915.
    Affirmed.
    Opinion filed March 9, 1915.
    Busby, Weber, Miller & Robinson and Arthur J. Donovan, for appellant.
    Charles C. Spencer, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the. court.

Under date of April 14,1887, Charles P. Burr signed an application for membership in Calumet Council No. 24, a subordinate council of the Royal League, a beneficiary society, in which application he designated as his beneficiary “Amanda Virginia Burr, related to me as wife. ’ ’ Under date of July 13,1887, said society issued to Burr a certificate payable at his death to “Amanda V. Burr wife,” upon satisfactory evidence of the death of the member in good standing. Burr died on February 15, 1914, in good standing in the order. Mrs. Burr made proofs of death and payment was not made to'her. She brought this suit upon the certificate and filed a declaration thereon, to which the Boyal League filed a plea of nonassumpsit, accompanied by a stipulation by the parties that it might make all defenses under said plea which it could make under any special pleas. A jury was waived, the cause was tried upon a stipulation as to the facts and a very little oral testimony. The society offered a proposition of law to the effect that Mrs. Burr was never designated as the beneficiary and is not entitled to recover. The court refused that proposition and found the issues for plaintiff and entered a judgment for her for the amount of the certificate and interest. The society appeals.

The sole defense is that at the date of the application and of the certificate, Mrs. Burr was not the wife of Charles P. Burr, but only his affianced wife. She married him in 1889, and thereafter lived with him as his wife until his death. The stipulation contains numerous extracts from the laws and rules of the order. Therefrom it appears that at the time this certificate was issued, an affianced wife was not eligible as a beneficiary and did not become eligible until 1893. The member had a right to change the beneficiary, but was required to apply to the society for such change. Burr never applied to the society for a change of the beneficiary. Long before said amendment of 1893, Mrs. Burr had become his wife. This was Burr’s second marriage. His first wife died, either in 1878 or 1879. They had two daughters. Before she died, the first wife gave these daughters to the father and mother of Charles P. Burr, who were people of considerable financial means. From that time on they never lived with Burr and were never after-wards dependent upon him. Appellant contends that by the laws of the order, this certificate is payable to them. At the time this certificate was issued, his daughters were not members of his family and were not dependent upon Burr and therefore were not eligible to become beneficiaries and did not become eligible until an amendment many years later. If, therefore, Mrs. Burr cannot recover because she. was not eligible to be a beneficiary when the certificate was issued and because it has never been changed since then, by similar reasoning and on the same authorities the appellant, if sued by the daughters, could successfully claim that the daughters could not recover, and the society might thus escape liability entirely under the certificate upon which Burr paid the dues and assessments for twenty-seven years. If the society were sincere in the statement in the brief that it is ready to pay this certificate to the proper party, its good faith would have been more manifest if it had filed a bill of interpleader and brought both the wife and the daughters into court and obtained an order to pay the money into court and be discharged, and leave those interested parties to litigate between themselves as to the ownership of the fund. There is nothing in this record to show that the daughters claim the fund or would litigate this matter against the widow.

We are cited to cases in other jurisdictions sustaining the right of the widow to the fund under circumstances similar to those existing here, and to other cases holding the contrary, and also to cases in this State containing language favorable'to the widow and other like cases favorable to the. society. Without discussing these, we are of the opinion that the fair implication to be drawn from National Union v. Keefe, 263 Ill. 453, when considered in connection with the fuller statement of the facts in the same case in 172 Ill. App. 101, is that this judgment is right. In that case, the Appellate Court held that James E. Keefe, who was a brother of the member and designated as the beneficiary in the certificate, was eligible to be a beneficiary when the certificate was issued and also when the member died. The Supreme Court, at the outset of its opinion, held that James E. Keefe was not eligible when the certificate was issued. If the position of appellant here is sound, that disposed of the case and there was no occasion to say any more, but the court occupied several subsequent pages in demonstrating that James E. Keefe was not eligible to be a beneficiary when the member died. We understand this to mean that that was a controlling element in the case. Murphy v. Nowak, 223 Ill. 301, is authority for the proposition that such a certificate is testamentary in its character and speaks at the death of the member, and it is a fair inference therefrom that if a party fills the description in the certificate at the death of the member he is protected thereby and entitled to recover thereon. The judgment is affirmed.

Affirmed.


text:
    August Malmgren, Appellant, v. Aurora, Elgin & Chicago Railroad Company, Appellee.
    Gen. No. 6,014.
    1. Carriers, § 525

      —when plaintiff may he cross-examined in action for ejectment as to previous ejectment. Where the declaration in an action against a street railroad company for the ejection of a passenger, alleges in different counts two ejections on the same day, and at the trial the plaintiff limits his evidence to the second act, held that it was not reversible error to permit him to be cross-examined as to the previous ejection, under the circumstances.
    2. Carriers, § 522*—when plea estops carrier from asserting that ejected person was not passenger. Where the declaration in an action for the ejectment of a person from a street car, alleges that the plaintiff' while lawfully a passenger thereon and while conducting himself in a peaceable and orderly manner, was, without right or provocation, ejected by the servants of the carrier with force and arms, and wantonly, wilfully, carelessly and negligently assaulted, to which the defendant pleaded molliter manus inposuit, to which the plaintiff replied that the defendant of its own wrong, and without the cause alleged in its plea, committed the several trespasses alleged, an issue was tendered as to whether, more force than necessary was used, and the defendant cannot assert that the plaintiff was not a passenger, was not lawfully on the car, and that he was rightfully ejected.
    3. Cabriers, § 262

      —when duty to carry cannot he enforced hy refusal to, pay fare. Where a street railroad company refused to carry a passenger to a point to which it was legally bound to take him, he cannot enforce such duty under a demand to carry him to his destination by refusing to pay fare after ejection from another car, since it was his duty to pay the demanded fare or leave the car on request, and to pursue an orderly legal remedy.
    4. Carriers, § 503*—when person ejected for refusal to pay illegal fare entitled to damages. A street car passenger cannot recover for injuries received when ejected from a car, in the absence of wilfulness, wantonness or the exercise of unnecessary force by the carrier’s servants, where on a car stopping short of its destination, he refused to leave until the car returned to its barn, when he boarded another car and demanded to be carried to his destination, and was ejected for refusing to pay his fare.
    5. Cabriers, § 526*—sufficiency of evidence to show use of unnecessary force in ejecting passenger. The evidence in án action for the ejectment of a person from a street car for nonpayment of an alleged illegal fare, held to show that no unnecessary force was used by the servants of the carrier.
    6. Appeal and Error, § 1520*—when judgment not reversed for error in directing a verdict. Even though the trial court erred in directing a verdict on conflicting evidence, the judgment will not be reversed on that account, where the case was such that if a contrary verdict had been rendered the Appellate Court would have reversed the judgment with a finding of facts.
    Appeal from the City Court of Aurora; the Hon. Edward M. Mangan, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 9, 1915.
    Mighell, Gunsul & Allen, for appellant.

      A. J. Hopkins, D. J. Peffers, J. S. Hopkins and R. J. Wing, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section'dumber.

   Mr. Justice Dibell

delivered the opinion of the court.

On Sunday August 17,1913, at some time near noon, August Malmgren was forcibly removed from a street car operated by the Aurora, Elgin & Chicago Eailroad Company. He brought this suit to recover damages for the injuries he claimed to have sustained thereby. There was a jury trial, and at the close of plaintiff’s evidence a verdict was directed and rendered for defendant. A motion by plaintiff for a new trial was denied, defendant had judgment and plaintiff appeals.

In fact, appellant was ejected twice on that day from cars operated by appellee. The testimony of plaintiff, in chief, was confined to the second event, about noon. Appellee cross-examined appellant as to the first expulsion that day and appellant argues that this was error. Appellee seeks to justify this on the ground that one of the two counts of the declaration is for the first expulsion and the other for the second. In common-law pleading a plaintiff often files more than one count for the same cause of action, stating it differently in the second count from the first, and in the second count avers that this was another car or train, or accident, or promissory note, when in fact there was but one cause of action, and this is recognized practice. Therefore, notwithstanding the use of the word “other” in the second count, appellant had a right to confine his attempted recovery to the second assault and to rely upon each count of the declaration as describing that assault. It is the general American rule that the cross-examination shall be confined to the direct. Jones on Evidence, sec. 820, and following sections. Yet more latitude is allowed in the cross-examination of a party, and also such a cross-examination may be allowed as tends to show the interest of the witness, and such prior events may often be gone into if they explain or lead up to the occurrence which, is the cause of the suit. Hanchett v. Kimbark, 118 Ill. 121, and other cases. Besides, this case was not decided by the jury, but by the court, and it is obvious that the action of the court would not have been different if the cross-examination had not covered the prior event. Certainly there was no reversible error in permitting that cross-examination in this case.

Appellee then operated a street railway known as the “Downer Place Line.” Downer Place runs east and west. At LeGrande Boulevard the railway turned south upon that street. The first street south of Downer Place was Garfield Avenue, the next, Park Manor, and the third, Kensington Place. Garfield Avenue was the end of actual operations on that line except as hereinafter stated. The company had laid ties and rails to extend said track to Kensington Place. At remote intervals of time a car had gone south beyond Garfield Avenue and had discharged passeng’ers at Kensington Place. At that time appellant lived near the comer of LeGrande Boulevard and Kensington Place. A number of other people lived in that vicinity. On Sunday morning appellant took the car at Garfield Avenue and went down town and bought a newspaper and then took a return car and, as he paid his fare, he told the conductor he wished to go to Kensignton Place. The conductor made no reply. The car stopped at Garfield Avenue and notice was given for every one to get out, and soon thereafter the car started on its return trip to the center of town. Appellant stayed on the car. So did a number of other persons, who lived in his vicinity. The conductor called upon appellant for his fare and he refused to pay, saying that he had told the * conductor that he wanted-to go to Kensington Place and that he would not get off until he was taken to that street. The same thing occurred with other people who lived in his vicinity. The conductor finally, during his return trip, reached the barn and took the car into the barn and left it there, and all those who had refused to pay left and went away except appellant. Appellant boarded another car bound down town and refused to pay, and before he reached that end of the line the conductor, the motorman and two policemen took him off the car, against his utmost resistance, during which removal a window in the yestibule was broken and appellant received some wounds and bruises. He then took another outward bound car with another conductor, paid the conductor his fare, saying he wished to go to Kensington Place, and when G-arfield Avenue was reached and the passengers were notified that that was the end of the route, he and one friend remained on the car. Soon after the car started back the conductor asked appellant for his fare. He refused to pay, on the ground that he had paid to go to Kensington Place and that he would not get off until the car took him there. The conductor told him that he must pay or leave the car. He refused to do either. The conductor stopped the car, called the motorman and two passengers to his assistance, and they removed appellant from the car. Appellant’s counsel- say that he made but a passive resistance. He did not strike or kick any one and no one struck or kicked him, but he made an exceedingly active resistance. The aisle in the car was narrow. He caught hold of the seat handles and held on with all the strength he had. He caught his foot around the supports of the seats. It was an old car and the doors and vestibule were narrow. He braced himself against them, and four men could not get hold of him very well, and they had very great difficulty in removing him. In his testimony as to his former removal froih the car he manifested pride in his strength and in the inability of the conductor to loosen his hold upon the seats. At this second occurrence a window in the vestibule was again broken. After they had him in the door of the vestibule he was able to place his arms in such a position that it was very difficult to get him out. Finally, the conductor, who stood upon the ground, caught hold of his legs and pulled them out from under him and he fell on the car step and was then removed. Two of the men held him on the ground until the car started and then ran and caught the car. He had not had his coat on while in the car. It was thrown out to him after the car started. He walked home, attended to some matter about his horses, went to bed, sent for a doctor and was treated several times, and then began this suit. The doctor found scratches and bruises on various parts of his face and body, especially upon his back, and two cuts upon his back, and extracted two pieces of glass from his back.

The declaration charged that appellant was a passenger on said car and that, while he was lawfully thereon and still a passenger thereon and conducting himself in a peaceable and orderly manner, appellee’s servants with force and arms, without right or provocation, wantonly, wilfully, carelessly and negligently assaulted him. Appellee contends that he was not a passenger and was not lawfully on the car, and that what appellee'@ did was not done without right, nor wantonly and wilfully, but in discharge of a legal right, and that therefore plaintiff cannot recover because he has not proved his declaration. This position would have great force if appellee had filed only the general issue, but it also filed a plea of molliter manus imposuit, to which appellant replied that appellee of its own wrong, and without the cause alleged in said second plea, committed said several trespasses; and thereby an issue was tendered whether more force was used in ejecting appellant from said car than was necessary, and appellant strongly contends that upon that question of fact the evidence required that the cause should be submitted to the jury.

The law applicable to this case has been stated and applied in Chicago, B. & Q. R. Co. v. Griffin, 68 Ill. 499; Pullman Palace Car Co. v. Reed, 75 Ill. 125; Pennsylvania R. Co. v. Connell, 112 Ill. 295; Kiley v. Chicago City Ry. Co., 189 Ill. 384; and Pennington v. Illinois Cent. R. Co., 252 Ill. 584; and by the Appellate Courts of this State, in the First District, in North Chicago St. R. Co. v. Olds, 40 Ill. App. 421, and 64 Ill. App. 595; by this court in Chicago, B. & Q. B. Co. v. Wilson, 23 Ill. App. 63, and Chicago, R. I. & P. Ry. Co. v. Brisbane, 24 Ill. App. 463, and by the Fourth District in Chicago & A. R. Co. v. Willard, 31 Ill. App. 435. In Kiley v. Chicago City Ry. Co., supra, many cases are cited from other jurisdictions. In Chicago, B. & Q. R. Co. v. Griffin, supra, there was an honest difference of opinion between the conductor and the passenger as to the destination of the ticket which the latter had surrendered to the former. The passenger refused to pay and the conductor and his assistants ejected him and he re-entered the car, in which were ladies, and undertook to pay his fare, but with obscene and abusive language, and the conductor returned his money and again ejected him from the train, and there was considerable violence by both parties. After stating that it was the duty of the passenger to pay the fare demanded, and that he. could maintain an appropriate action for the indignity to which he had been exposed, if he had in fact once paid his fare, the court further said:

“The law will not permit a passenger to interpose resistance to every trivial imposition to which he may really feel or imagine himself exposed by the employees, that must be overcome by counterforce in order to preserve subordination. It is due to good order and the comfort of the other passengers, that he should submit for the time being, and redress his grievances,, whatever they may be, by a civil action. A" party will be entitled to quite as much damage for any wrong or injury quietly endured as if violently resisted; indeed, the policy of the law ought to be to award him a higher measure of damages. Whatever personal injuries may result from his violence, should be attributed to his own want of subordination, for which the law will afford him no redress.”

In Pullman Palace Car Co. v. Reed, supra, appellee had lost his sleeping ear ticket and refused to pay again and the conductor carried his boots, coat and satchel into the next car and directed him to vacate the sleeping car, and upon his refusal took him, by the collar and led him into the next car and he had to ride that night without sleeping car accommodations, and he sued the company, and it was held that he was only entitled to recover the price paid for his sleeping car ticket and a reasonable compensation for the inconvenience he suffered from being deprived of his berth. In Pennsylvania R. Co. v. Connell, supra, the controversy arose between the conductor and a passenger concerning his ticket, in which the passenger seems to have been correct. The conductor refused the ticket, demanded pay, and when that was refused, requested the passenger to leave the train. The passenger refused and the conductor put him off, using such force as seemed necessary for that purpose. The passenger sued and recovered large damages. The trial court instructed the jury that the plaintiff was entitled to recover compensation for loss of time and compensation for injuries to his person resulting from being forcibly ejected from the train, and for bodily pain. It was held that he was entitled to damages for the delay and additional expenses occasioned thereby and reasonable damages for the indignity of being expelled from the train, but not for his personal injuries, unless the expulsion was malicious and wanton, and that it was his duty to have left the train in a peaceable manner when requested by the conductor, or to have paid his fare and sought redress in the courts. In Pennington v. Illinois Cent. R. Co., supra, the plaintiff was ejected from a suburban train, after a controversy over his ticket, which had expired, and a refusal by the plaintiff to pay fare. Plaintiff claimed that he was unable to find the station for some time after he left the train, and he froze his hands and feet and was made sick. The court said:

“It is clear that the conductor of the defendant’s train was well within his legal rights in requiring the plaintiff to pay his fare from Douglass station to Kensington station or to leave the train, and as he was guilty of no legal wrong in requiring the plaintiff to leave the train at Hyde Park there was no legal liability resting upon the defendant by reason of his ejection at that station, and there can be no recovery for an injury received by plaintiff in consequence of his being required to leave the train at Hyde Park.”

Applying the rules laid down in these cases, it is clear that appellant here could not in this manner force appellee to carry him to Kensington Place; that if it owed him a legal duty to carry him there and refused to do so, the law afforded him a remedy by action and he could not lawfully undertake to enforce that right by the course he here pursued; that it was his duty to pay the fare when demanded or to leave the car when requested by the conductor; and that he has no cause of action to recover for the personal injuries which he sustained because of his forcible resistance to the directions of the conductor, unless they were wilfully and wantonly inflicted by the servants of appellee, or appellee used more force than was necessary to get appellant off the car. The servants of appellee did not strike appellant nor kick him, and he was so strong and his resistance so extreme and so constant that it was with great difficulty that he was removed. There is no evidence that the servants of appellee exhibited any anger or wanton spirit, and we are of the opinion that the jury could not reasonably have found that they used more force than was necessary to remove appellee. There are single sentences in the evidence by appellee himself which might indicate that he was used more harshly than was necessary, but when the evidence of his personal friend and the other witnesses whom he called is considered, no such result is fairly reached therefrom. If it be said that the trial judge may not weigh the evidence upon a motion to direct a verdict and therefore should have submitted this evidence to the jury, still in this court we may weigh the evidence; and in this case, if appellee had introduced no testimony and there had been a verdict for appellant as compensation for the injuries he suffered, we should have felt bound to reverse the judgment without remanding the cause, and it would be an anomaly for us to send this case back to permit a verdict to be rendered which we would not sustain. Appellant undertook to take the law into his "own hands and to enforce his alleged rights by á wrongful, violent resistance, and he brought his injuries upon himself. Substantial justice has been done. Cars and trains could not be operated nor the reasonable comfort and convenience of other passengers secured if such conduct was encouraged by permitting the maintenance of such an action'under such circumstances. The judgment is affirmed.

Affirmed.