text:
    Johanna Kennedy, Appellee, v. Modern Woodmen of America, Appellant.
    1. Evidence—what competent upon issue of death presumed from seven years’ absence. Investigations made after suit upon a benefit certificate has been instituted are competent where the death is sought to be established under the presumption arising from seven years continued and unexplained absence.
    2. Evidence—what competent upon issue of death presumed from seven years’ absence. If information has been given to relatives of the presence of the party who has disappeared, to the effect that he had been seen at a certain time and place, failure to investigate such clue may be justified by showing the bad reputation for truth and veracity of the person who has given such information.
    3. Evidence—what sufficient to establish death arising from disappearance. It is sufficient if the facts necessary to raise the presumption of death are established by a preponderance of the evidence.
    Assumpsit. Appeal from the Circuit Court of Douglas county; the Hon. Solon Philbbick, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    Truman Plantz and W. W. Reeves, for appellant,

      Eckhart & Moore, J. M. Merica and John H. Chadwick, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit by Johanna Kennedy against the Modern Woodmen of America to recover the amount of a benefit certificate issued to James Kennedy and payable at his death to his wife Johanna. A trial by jury resulted in a verdict against the defendant for $2,000, a remittitur by plaintiff of $1.10 and judgment against defendant for $1,998.90. To reverse said judgment the defendant prosecutes this appeal.

The count of the declaration upon which the recovery was had alleges with respect to the death of James Kennedy in substance that on December 13, 1898, the said James Kennedy suddenly and without explanation left and disappeared from his home near Tuscola in Douglas county, and has been unaccountably absent ever since; that he has never returned or been heard of since his disappearance, although diligent and continued search has been made for him; that on December 13, 1905, the said absence of said James Kennedy had continued seven years, whereby the said James Kennedy was presumed in law to be dead, and that he departed this life on said last named date.

It is admitted by counsel for appellant that under the law of this state death may be presumed from evidence showing that the person claimed to be dead left his place of residence intending to return to the same, and that he had been absent from such place of residence for seven years, and that diligent search and inquiry has been made for him throughout the seven years without any information from or concerning him, and further, that the presumption of death as thus established is sufficient to authorize a recovery upon a benefit certificate such as was held by James Kennedy.

It is urged on behalf of appellant that the evidence in this case is not sufficient to raise the presumption of death and that the trial court erred in its rulings upon the admission of evidence and in refusing certain instructions. The questions raised as to the sufficiency of the evidence to sustain the presumption of death and the rulings of the trial court upon the evidence are so intimately related that they must of necessity he considered together.

It is established by the evidence that on December 13, 1898, and for some time prior thereto, James Kennedy resided with his family, consisting of his wife, the appellee, and six children, upon a dairy farm near Tuscola; that he was then 42 years of age, in good health, and that his relations with his family were kindly and affectionate; that during the forenoon of the day named he performed his usual work and in the afternoon drove with his wife to Tuscola, returning home with her about 6 p. m.; that upon that day he drew $185 from the bank upon a check given to him in settlement for grain sold and then had in his possession about $200 in cash; that he informed his family he was going to Champaign for the purpose of paying an installment of $200 rent for his farm, which would be due January 1st following, and would return on the next train due at Tuscola at 1 a. m. ; that he requested his family not to sit up for him but to leave the south door of the house unlocked and to leave plenty of coal so he could fix the fire when he returned; that he purchased a ticket at the Illinois Central depot for his transportation from Tuscola to Champaign, and when the train arrived at Tuscola he was seen to leave the depot and walk toward the train; that while at the depot he met the witness F. T. Smith, who asked him if he was going away, and he replied he was there to meet some parties and that he was going away next week; that all of the members of his family and several other persons who are intimately acquainted with him, had made search and inquiry to discover his whereabouts and had written for information as to his whereabouts to all places where he was likely to have gone, if living, but without avail, and that he had not communicated with any member of his family or any intimate acquaintance since his departure from Tuscola; that appellee had prior to the last trial of this cause recovered a judgment in her suit against the Court of Honor upon a benefit certificate issued to her said husband and payable to her in the trial of which suit the said issue was involved.

Upon her cross-examination when called as a witness in her own behalf, appellee stated that prior to the commencement of this suit and within seven years after his disappearance she heard that her husband had been seen in Salt Lake City, Utah; that this information was communicated to her in June, 1904, by her son, who had then been informed by a woman that she had seen his father there in 1900; that appellee had written to the chief of police, mayor and postmaster at Salt Lake City, and had received replies to her letters, which replies were in the possession of her counsel ; that said letters addressed to Salt Lake City were written since this suit was commenced and after the trial of the suit against the Court of Honor.

Counsel for appellant moved the court to exclude that portion of the testimony of the witness which related to her having written letters to Salt Lake City, because such letters were shown to have been written after the commencement of the suit, which motion was overruled. It is urged that the admission of this evidence was incompetent and prejudicial to appellant because it was incumbent upon appellee to show facts sufficient to raise the presumption of death within seven years after the disappearance of her husband, and before this suit was brought; that investigations made after that time could not aid the court or jury in determining the question and that by the admission of such evidence the jury would probably be led to believe that the investigation made by appellee at a subsequent time was sufficient. We are not prepared to say upon this record that the evidence of appellee in that regard was so wholly irrelevant as to have required its exclusion. Appellee had testified in her direct examination that ever since the disappearance of her husband she had written to persons at different places, including Salt Lake City, in an effort to locate her husband.

Appellant did not ask to see copies of the letters so written by her, or the replies, if any received by her to such letters. It does not appear whether the letters written by appellee to Salt Lake City related to the presence of Kennedy at that place within seven years after his disappearance or thereafter and at the time the said letters were written. If said letters related to the presence of Kennedy at that place within seven years after his disappearance, we think in view of certain other evidence in the record hereinafter referred to, that the evidence was competent notwithstanding it related to letters which were written after this suit were commenced. Furthermore, the record discloses that James Kennedy, John Kennedy and Martin Kennedy, sons of appellee, testified without objection that they had written like letters to Salt Lake City and other places since the commencement of this suit. The jury could not have been led to believe that any investigation made subsequent to seven years after the disappearance of James Kennedy, was sufficient to raise the presumption of his death, because they were specifically instructed at the instance of appellant that the search and inquiry necessary to be made to raise the presumption of death must have been made within seven years after his disappearance, and that the requirement of the law in that regard would not be complied with by making search and investigation since the commencement of this suit.

Upon the re-direct examination of appellee and upon her direct examination when recalled as a witness in her own behalf, she testified that one Myrtle King Rogers told her son in the summer of 1904 about seeing her husband in Salt Lake City, and that her son had then so reported to her; that said Myrtle King Bogers, who was a daughter of Dan King, a former resident of. Tuscola, came to Tuscola when she was about ten years of age, and lived there until she arrived at young womanhood; that she did not make any search for her husband under the information she so received through Mrs. Bogers. Over the objection of counsel for appellant appellee was further permitted to testify in substance that the reason she did not then make such search was because the general reputation of Mrs. Bogers for truth and veracity was not good; that Mrs. Bogers was untruthful and that she, appellee, thought it wasn’t worth while to hunt. Other witnesses called on behalf of appellee were permitted over the objection of appellant to testify to the general reputation of Mrs. Bogers for truth and veracity during the time she resided in Tuscola as being bad, and also as to contradictory statements.made by her concerning where she had seen Kennedy since his disappearance.

The question of the propriety of this impeaching evidence as thus presented for consideration is not to be determined upon precedent and authority, as none appears tó exist. While Mrs. Bogers was not a witness in the case, appellant sought upon the trial and now seeks to give to her statement that she had seen Kennedy in Salt Lake City in 1900 the force and effect of direct evidence that Kennedy was then alive and thus rebut the presumption of death arising from his absence from his usual place of abode for seven years together with proof that although diligent search and inquiry had been made no communication or intelligence had been received concerning him and of whom no account could be given. It is insisted that when Mrs. Bogers told the son of James Kennedy that she had seen his father in Salt Lake City, and when such information was communicated by the son to appellee and other members of the family, it constituted information and knowledge by the family of the existence and whereabouts of James Kennedy during the seven years, and that appellee and the members of the family, if they doubted such information, were required to investigate and ascertain whether or not it was true; that not having done so but having elected to let the matter remain as it was they are estopped from claiming that he has been absent from home without any information having been received concerning him. Predicated upon this insistence appellant at the close of the evidence for appellee offered a peremptory instruction which was refused by the court.

Whether or not appellee and the members of the family whose duty it Was to make search for James Kennedy had performed their duty in that regard was a question of fact for the jury. Policemen’s Benevolent Association v. Ryce, 213 Ill. 9.

The solution of this question involved a consideration by the jury of the character and reliability of the sources of the alleged information concerning the whereabouts of Kennedy, which was shown by the evidence to have been communicated to those whose duty it was to make inquiry and search for him, and when the persons bound to make such inquiry and search are charged with the failure to act upon such information we perceive no substantial reason why the sources of such alleged information may not be discredited and impeached, and the admission of evidence to that end contravenes no established rule of law. If the source of such information is known to the person to whom the information is communicated and is shown by the evidence to be unreliable and unworthy of credit, a failure to act upon such information cannot operate to estop such person from asserting a fact inconsistent with such information. In such case no element of the doctrine of estoppel is presented and the doctrine is not applicable.

It is further urged that the impeachment of Mrs. Bogers was erroneously permitted to be based upon evidence of her general reputation for truth and veracity when she was a resident of Tuscola some ten or twelve years prior to the time when she communicated the information to a son of appellee. Appellee was justified in acting upon the known reputation of Mrs. Bogers in that regard during the time she resided and was known in Tuscola, and was not necessarily bound to ascertain whether she had thereafter acquired a different reputation in the neighborhood where she resided when the statement was made.

Upon the cross-examination of James Kennedy, a son of appellee, called as a witness on her behalf, he stated that he had been told by Mrs. Bogers in 1904, that she had seen his father in Salt Lake City in 1900, and when asked by counsel for appellant what further she told him in that conversation he was not permitted to answer. The question was competent and the witness should have been allowed to answer it. The ruling of the court in this regard could not, however, have operated to the prejudice of appellant because the statement by Mrs. Bogers that she had seen Kennedy in Salt Lake City was manifestly wholly discredited by the jury.

William E. Bogers, the husband of Myrtle King Bogers, and whose deposition was taken on behalf of appellant, testified that he first saw James Kennedy in Tuscola in 1898, and that he next saw him in Salt Lake City standing on the corner of the street by the Kenyon Hotel just before Christmas in 1900; that he then had a conversation with Kennedy consisting of not over half a dozen words, in which conversation he believed he asked Kennedy if he was going home to his wife, and Kennedy replied “No,” that his (the witness) wife was with him at the time and participated in the conversation which related to Kennedy leaving home; that Kennedy was dressed as a miner and pulled out a roll of bills and said that he was not going to work; that he was going to stay around Salt Lake City a short time and was then going back to the old country.

It would unduly extend this opinion to detail and discuss the evidence adduced upon the cross-examination of this witness together with other evidence in the record introduced on behalf of appellee which tended to discredit his testimony. A most careful examination of the evidence persuades us that the jury were justified in concluding that the testimony of this witness was fabricated and that he was unworthy of belief. Our attention is directed to various rulings of the trial court upon the admission of evidence tending to discredit and impeach the testimony of this witness, but we find no error in that regard and nothing therein which merits discussion.

By the 13th and 14th instructions offered on behalf of appellant and refused by the court, the jury were told that before they would be justified in finding James Kennedy to be dead all reasonable doubt of his being alive ought to be removed, by the evidence. This is a civil case and not a criminal prosecution and it was not incumbent upon the appellee to establish the death of her husband by evidence beyond a reasonable doubt. It was sufficient if the facts necessary to raise the presumption of death were established by a preponderance of the evidence. Policeman’s Benevolent Association v. Byce, supra. The 15th and 16th instructions offered on behalf of appellant and refused by the court were properly refused because they infringed upon the province of the jury.

While the record in this case is not wholly free from error, our attention has not been directed to any error which could have operated to the prejudice of appellant upon the merits of the controversy.

The judgment of the Circuit Court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Baume

license: Public Domain

text:
    O. A Smith, Appellant, v. David F. Lawley et al., Appellees.
    1. Evidence—when in civil case must establish defense beyond reasonable doubt. In actions of tort when a criminal offense is charged in the pleadings and must be established to sustain the cause of action or to maintain the defense, the presumption of innocense arises and the crime charged must be proven by evidence which removes every reasonable doubt of guilt.
    2. Special interrogatories—must pertain to issues. A special interrogatory should not be given to the jury which constitutes a departure from the true issues involved.
    Action for malicious prosecution. Appeal from the Circuit Court of Tazewell county; the Hon. Theodore N. Green, Judge, presiding.
    Heard in this court at the November term, 1908.
    Reversed and remanded.
    Opinion filed May 19, 1909.
    George B. Foster and G. A. Stultz, for appellant.
    W. R. Curran, for appellees.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit brought by O. A. Smith against David F. Lawley, Frank J. Wilkins and Josephine Copes to recover damages for alleged malicious prosecution, abuse of criminal process and conspiracy. The declaration alleges in substance that plaintiff was an attorney at law practicing his profession in the city of Pekin; that defendants conspiring together to injure the plaintiff in his good name, profession and business, did on February 11, 1907, appear before the grand jury and then and there falsely and maliciously and without any reasonable or probable cause, charge plaintiff as such attorney with having failed and refused on January 31,1907, to turn over, less his proper charges, upon demand by the defendant, Josephine Copes, the sum of $134.21, to which she was then entitled, and which had been collected by plaintiff as such attorney, and then and there wrongfully charged the plaintiff with wrongful withholding, embezzling and stealing said money from the said Josephine Copes, whereby the said grand jury returned a true bill of indictment against plaintiff, etc.; that said defendants caused said indictment to be certified to the County Court of Tazewell county and caused the clerk of said County Court to issue a criminal capias for the arrest of the plaintiff, and did thereby wrongfully, maliciously and without any reasonable or probable cause procure the plaintiff to be arrested and restrained of his liberty until he could secure bond; that said defendants did maliciously from time to time cause misleading accounts of said proceedings and charges to be wrongfully published in newspapers in said community and did cause the plaintiff to be taken before the County Court for trial upon said indictment; that upon the trial of said criminal charge against the plaintiff, the said County Court adjudged and determined that plaintiff was not guilty of the offense charged, and then and there caused plaintiff to be discharged from custody fully acquitted of the offense charged in said indictment; that the defendants have not further prosecuted said complaint against the plaintiff, but have abandoned the same and said complaint is wholly ended and determined in favor of the plaintiff. To this declaration the defendants, filed five special pleas wherein in varying phraseology they averred certain facts in justification. The plaintiff filed his replications to said plea, and to the replication to the fifth plea, which replication concluded with a verification, the defendants filed their rejoinder concluding to the country. Upon the trial, at the close of the plaintiff’s evidence, the court instructed the jury to find the defendant Frank J. Wilkins not guilty, and thereafter upon a consideration of the evidence the jury returned a verdict finding the defendants not guilty, as also their answers to two special interrogatories submitted at the instance of defendants, as follows :

“Did the plaintiff, O. A. Smith, as a loan agent acting for Josephine Copes, the defendant, embezzle the sum of $134.21, the property of said Josephine Copes?” Answer—Yes.
“Did the plaintiff, A. O. Smith, as an attorney at law, acting for the defendant Josephine Copes, embezzle the sum of $134.21, the property of said Josephine Copes?” Answer—lío.

Upon the verdict so returned judgment was entered against plaintiff for costs. The facts disclosed by the evidence insofar as the same are pertinent to the consideration of this appeal, are substantially as follows:

On February 1, 1905, Josephine Berry, now Josephine Copes, one of the defendants, entered into an ante-nuptial contract with one W. F. Copes, whereby in consideration of their marriage and the release by W. F. Copes of all rights in her property and the payment to her of one-half of the amount to be realized on a certain life insurance policy for $1,000 on his life she released all rights in his property and agreed that the money so paid to her should be her sole and full allotment out of his estate by reason of the marriage relation. This contract was drafted by the plaintiff as the attorney for W. F. Copes. On July 25, 1905, one F. C. Pauley called upon the plaintiff for the purpose of negotiating a loan for $300 and plaintiff had an interview with W. F. Copes with reference to procuring the money. Under an arrangement whereby the plaintiff divided his commission on the loan with W. F. Copes, the latter procured the amount from his wife, Josephine Copes, one of the defendants, and a note therefor was executed by said Pauley and by plaintiff as surety, bearing date July 28, 1905, payable to Josephine Copes three months after date. Upon the maturity of the first note the loan was subsequently renewed by giving new notes therefor. W. F. Copes died September 29, 1906, leaving his last will and testament, whereby he bequeathed to his wife, Josephine, the sum of $1,000 in addition to the provision made for her in the ante-nuptial contract, and whereby he appointed his granddaughter, Eugenia Bequeaith, his executrix. Josephine Copes accepted the provisions of the will and Eugenia Bequeaith was duly appointed executrix by the County Court of Tazewell county. At the time of his death W. F. Copes was a member of the Independent Order of Odd Fellows and shortly thereafter the officers of the local lodge of said order paid to Josephine Copes, as the widow of said deceased member, the sum of $90, as a funeral benefit to be expended for funeral expenses. Eugenia Bequeaith, who resided with Mr grandfather and who after his death continued to reside with the defendant, Josephine Copes, was employed in the office of the plaintiff as a stenographer, and after her appointment as executrix the plaintiff acted as her attorney and legal adviser. On or about January 27, 1907, the defendant, Josephine Copes, either at her own instance or upon the request of plaintiff, went to the office of plaintiff with the note of $300 executed by F. C. Pauley, and which was then about to mature, for the purpose of collecting the same. The evidence tends to show that the plaintiff then offered to collect the note at once and pay over the proceeds to Josephine Copes, but that as she desired to go to a funeral she directed the plaintiff upon making the collection to give the same to Eugenia Bequeaith for delivery to her. The plaintiff took the note to Pauley, the maker, and received the latter’s check, payable to the plaintiff for the sum of $300 in payment of the note, and plaintiff then endorsed the check and delivered the same to Eugenia Bequeaith. Thereafter Eugenia Bequeaith consulted the plaintiff regarding the liability of Josephine Copes to pay her the sum of $90, being the amount of funeral benefit heretofore mentioned, upon the ground that the funeral expenses of W. F. Copes had been paid by her as executrix out of the funds of the estate, and also as to the liability of said Josephine Copes to pay to her the sum of $44.21, claimed to be due her upon a personal account for household expenses, and further consulted plaintiff regarding her right to withhold said amounts aggregating $134.21 from the amount of the check for $300 then in her hands for delivery to said Josephine Copes. Plaintiff advised Eugenia Bequeaith that Josephine Copes was not entitled to retain for her own use the funeral benefit amounting to $90, and that she (Eugenia Bequeaith) had the right to deduct said amount, together with the sum of $44.21 claimed to be due upon her personal account, from the amount of said cheek. Thereupon Eugenia Bequeaith deposited the check for $300 in the bank as a credit on her personal account and made her check payable to the order of Josephine Copes for $165.79, which check, together •with her receipt as executrix for $90 and her personal receipt for $44.21, making in all $300, she delivered to Josephine Copes. After repeated efforts on the part of the defendants, Josephine Copes and David F. Lawley, the latter acting as her attorney, to collect from the plaintiff the sum of $134.21 so withheld by Eugenia Bequeaith, the plaintiff was indicted and brought to trial for the crime of embezzlement and acquitted as alleged in the declaration.

The trial court did not err in giving to the jury a peremptory instruction to find the defendant, Frank J. Wilkins, not guilty. Wilkins appears to have been merely a passive listener to certain conversations between the plaintiff and the other defendants, and was called as a witness to testify to such conversations.

A carefnl consideration of the voluminous evidence as it appears in the record in this case persuades us that the defendants, Josephine Copes and David F. Lawley, were fully advised that the $134.21 in question was not retained by the plaintiff for his own use, but that he paid the entire proceeds of the collection of the Pauley note to Eugenia Bequeaith as the agent of the defendant Josephine Copes, and that said amount was retained by the said Eugenia Bequeaith under the circumstances heretofore stated. The plaintiff and Eugenia Bequeaith both testified that when Josephine Copes brought the Pauley note to plaintiff’s office she directed the plaintiff to turn over the pro^ ceeds of the note to Eugenia Bequeaith to deliver to her (Josephine Copes). The receipts for $90 and $44.21, the former signed by Eugenia Bequeaith as executrix, and the latter signed by her in her personal capacity, were in the possession of Josephine Copes and were seen by the defendant Lawley, and upon their face they bore evidence of the fact that' said sums of money were retained not by the plaintiff, but by Eugenia Bequeaith.

Franklin L. Velde, chairman of the grievance committee of the Tazewell county bar association, testified that the defendant Lawley interviewed him with reference to making a complaint against the plaintiff, and that Lawley then informed him that the money in question had been retained by Miss Bequeaith, and that Mrs. Copes had authorized the payment of the money or the check, which was the proceeds of the Pauley note, to Miss Bequeaith.

Charles Schaefer, state’s attorney of Tazewell county, testified that the defendant Lawley told him that Mrs. Copes had been requested to bring the Pauley note to the plaintiff’s office, and that when she went there with the note plaintiff said he would collect the money from Pauley and send it to her by Eugenia Bequeaith; that she, Mrs. Copes, left the note there and shortly thereafter Miss Bequeaith came home and gave Mrs. Copes a check and two receipts which papers Lawley then had with him; that Lawley then referred him to.section 79 of the Criminal Code in relation to embezzlement by attorneys; that he asked Lawley why Mrs. Copes did not bring a civil suit to recover the money, and Lawley stated that the reason he did not do it was because of a direction in the will of W. F. Copes to the effect that if a contest was made by the widow she would lose the amount of her bequest under the will.

While the evidence discloses some conduct on the part of the plaintiff in relation to the transaction which is not wholly creditable to him, it also discloses facts and circumstances tending to show that the defendants, David F. Lawley and Josephine Copes, were primarily concerned in an effort to collect the money which Mrs. Copes claimed had been wrongfully withheld from her, and that the reason for the resort to criminal proceedings against the plaintiff was the apprehension that a civil action to recover the money from Miss Bequeaith would operate in some way as a contest of the will of W. F. Copes whereby Mrs. Copes might forfeit the bequest to her.

Upon the pleadings as framed, together with a special interrogatory submitted to the jury, two issues were presented relating to the guilt or innocence of the plaintiff of criminal offenses: First, the embezzlement of $134.21 as agent, and second, the embezzlement of said sum of money as an attorney at law. By several instructions given at the instance of the defendants the jury were informed in substance that they would be authorized to find the plaintiff guilty of one or the other of said criminal offenses upon proof of the same by a preponderance of the evidence. In this respect these instructions were erroneous and highly prejudicial to the plaintiff. The rule in this state, except as modified by statute, in actions of slander or libel, is that when a criminal offense is charged in the pleadings and must be established to sustain the cause of action, or maintain the defense, the presumption of innocence arises and the crime charged must be proven by evidence which removes every reasonable doubt of guilt. People v. Sullivan, 218 c. 419.

Insofar, however, as the pleadings in this case raise the issue of the guilt of the plaintiff of the crime of embezzlement they constitute a departure from the true issues involved, and the special interrogatories heretofore mentioned should not have been submitted to the jury.

The judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


text:
    C. C. Digby, Administrator, Appellant, v. William Weber et al., Appellees.
    Administration oe estates—what laches bars application to sell real estate to pap debts. A delay of 27 years after an estate of homestead has ceased to exist in the real estate sought to be sold, constitutes such laches on the part of the creditors as will bar the relief sought; such laches cannot be excused by the failure of the widow and heirs to notify creditors of the extinguishment of the homestead estate; such duty of notification does not rest upon such widow and heirs but the necessity of vigilance is imposed upon the creditors.
    Petition to sell real estate to pay debts. Appeal from the County Court of Coles county; the Hon. T. N. Coeeb, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    A. C. Anderson, for appellant; S. S. Anderson, of counsel.
    A. J. Fryer, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is an appeal from an order of the County Court of Coles county, denying the petition of appellant as administrator de bonis non with the will annexed of Godfrey Weber, deceased, for the sale of certain real estate, of which said deceased died seized, for the payment of debts.

The evidence discloses that Godfrey Weber died in 1877, leaving his last will and testament and that his widow, Frances Weber, was duly appointed executrix of said will and continued to act as such executrix until her death in 1908; that in 1879, said executrix, upon her petition for the sale of all the real estate of said deceased (except the property here involved which was then occupied by her as her homestead) for the payment of debts, was directed to sell said real estate and that upon such sale being made by her there was realized for distribution among the creditors $414.06 less costs, which amount liquidated about 10 per cent of the amount of claims then allowed against said estate; that, thereafter, another claim was allowed against said estate, amounting to $820; that in 1908, after the death of said executrix, appellant was appointed administrator de bonis non with the will annexed of the estate of said deceased and the unpaid claims against said estate then amounted to $4,000, without computing interest thereon; that immediately after his appointment as such administrator appellant filed the petition here involved for the sale of lots 110, 111, 112 and 119 in the original town of Charleston, being the property occupied by the said deceased at the time.of his death as a homestead and thereafter by his widow until her removal from and abandonment of the same; that in 1881 Frances Weber, widow of said deceased, removed from and abandoned said premises as her homestead, and thereafter continued to reside upon her farm at Westfield and in a house or houses owned by her in Charleston; that the dower of said Frances Weber in the real estate of which her husband died seized, was never assigned and set apart to her.

The only question involved is whether, upon the facts as stated, a delay of 27 years after the estate of homestead ceased to exist in the real estate sought to be sold, constitutes such laches on the part of the creditors as will bar the relief sought.

It must be regarded as settled law in this state, that where an application is made for the sale of real estate to pay debts more than seven years after the death of the principal debtor or the grant of letters on his estate, the burden is cast upon the administrator satisfactorily to explain the reason for the delay, and where no satisfactory explanation is made, the proceeding will be barred by laches. Wolf v. Ogden, 66 Ill. 224; Graham v. Brock, 212 Ill. 579; White v. Horn, 224 Ill. 238; Frier v. Lowe, 232 Ill. 622. All of the cases cited and relied upon by appellant are cases where the real estate sought to be sold was encumbered by an estate of homestead in the widow or children of the deceased, or which had been assigned to the widow as her dower. In such cases it was held that an application for the sale of the real estate to pay debts made •within a reasonable period after the estate of homestead or dower had ceased to exist, was in apt time. In no case has it been held that an unassigned right of dower in lands subject to sale constituted a sufficient excuse for a failure to apply for the sale of such lands.

It is urged in the case at bar that if the estate of homestead of the surviving widow in the land sought to be sold ceased to exist by abandonment in 1881, the creditors of the deceased had no notice of such fact, and the suggestion is offered that it was incumbent upon the "widow and heirs of the deceased to then notify the creditors of such fact. No such duty was imposed upon the widow and heirs of the deceased debtor, but it was the duty of the creditors to be vigilant in ascertaining their rights, and a failure to exercise such vigilance constitutes no excuse whatever for the delay, but rather operates to make the bar by laches more effective. Wolf v. Ogden, supra.

The court did not err in denying the prayer of the petition and the judgment will be affirmed.

Affirmed.


text:
    Belle Orndorff, Appellee, v. Supreme lodge Knights of Pythias, Appellant.

      Instructions—must not assume facts in dispute. An instruction is prejudicial and ground for reversal .which assumes the existence of material facts not proven.
    Assumpsit. Appeal from the Circuit Court of Clark county; the Hon. Morton W. Thompson, Judge, presiding.
    Heard in this court at the November term, 1908.
    Reversed and remanded.
    Opinion filed May 19, 1909.
    Rehearing denied June 30, 1909.
    Carlos S. Hardy, for appellant.
    Golden, Schofield & Schofield, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

The plaintiff recovered a verdict and judgment against the defendant in the Circuit Court of Clark county for $2,065, upon a benefit certificate issued to Thomas A. Orndorff, the husband of the plaintiff. To the declaration in the usual form, defendant pleaded the general issue, together with a special plea alleging that the insured made untruthful answers to certain questions in the application for the benefit certificate, which answers were known by the insured to be false at the time they were made, and that the defendant was deceived by such answers and believed them to be true.

As the judgment must be reversed for error in giving the third instruction, offered at the instance of plaintiff, it is not necessary to consider other errors assigned relating to the action of the court in refusing to grant a continuance and in suppressing the deposition of the witness Leon J. Willien.

The instruction referred to is as follows:

“The court further instructs the jury that if they find from the preponderance of the evidence that Dr. P. P. Hazlett was the medical examiner of the defendant, that said doctor made an examination of said Thomas A. Orndorff in reference to his health and bodily condition, with a view to procuring insurance on his life, and that said doctor, as such medical examiner, did make a report to the defendant and certified that said Orndorff was in good health, and had been for five years then last past, and the defendant thereupon on the faith of such certificate issued to said Orndorff the policy given in evidence, then the law is that the defendant is bound by the terms of said policy, and the jury are not to consider in making up their verdict, any evidence contrary to the certificate and report of said Dr. Hazlett, as the medical examiner in this case for the defendant, and in such case the jury should find for the plaintiff.”

There is not a particle of evidence in the record tending to show that the medical examiner, Dr. Hazlett, made a repbrt to the defendant certifying that Thomas A. Orndorff was in good health and had been for five years then last past, and the giving of this instruction, which not only assumed that there was such evidence, but which also assumed the existence of such a report and certificate made by Dr. Hazlett, was highly prejudicial to the defendant.

For the error in giving said instruction the judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


text:
    In the Matter of the Conservatorship of James Bishop, Spendthrift. James Bishop, Appellant, v. James A. Welch, Appellee.
    1. Conservator—when petition for• appointment of, for alleged spendthrift not insufficient. A petition filed for the appointment of a conservator for an alleged spendthrift is not insufficient if it fails to allege in the language of the statute that such alleged spendthrift if such conservator was not appointed, was likely “so to spend, waste or lessen his estate as to expose himself or his family to want or suffering, or some county, town or incorporated city or village to any charge or expense for the support of such spendthrift or his family.”
    2. Conservator—when irregularities in petition for appointment waived. A technical insufficiency in the petition for the appointment of a conservator for an alleged spendthrift is waived by appearing generally to the merits.
    3. Conservator—when proceedings for appointment for alleged spendthrift not erroneous. Proceedings resulting in the appointment of a conservator for a spendthrift need not strictly follow the act relating to the commitment and detention of lunatics.
    4. Appears and errors—how record cannot he impeached. A judicial record imports absolute verity and cannot be impeached by parol testimony.
    Petition for removal of conservator, etc. Appeal from the Circuit Court of McLean county; the Hon. Corostin D. Myers, Judge, presiding.
    Heard in this court at the May term, Í908.
    Affirmed.
    Opinion filed May 22, 1909.
    Wight & Alexander, for appellant.
    Bracken, Young & Pierce, R. C. DeMange and A. E. DeMange, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

On March 16, 1903, James A. Bishop, a son of the appellant, James Bishop, filed his petition in the County Court of McLean county, wherein he represented to the court that he was a reputable citizen of the said county, and that the appellant was a resident of said county; that he believed that appellant was a spendthrift and by reason of such condition of unsoundness of mind was incapable of managing and caring for his own estate; that the fact in the case could be shown by Dr. McFarland, a regular practicing physician, having personal knowledge of said case, and by certain other persons, and that the said appellant was possessed of real and personal estate, thé safe keeping of which requires the appointment of a conservator. The petitioner prayed that summons be issued for said appellant; that a venire be issued for a jury and subpoena be issued for the witnesses named, returnable at such time as the court should fix; that proceedings be had to inquire into the condition of said appellant, and that a conservator be appointed for said appellant according to the statute in such case made and provided. Thereupon the court fixed upon March 20, 1903, at 10 o’clock a. m., as the time for a hearing on said petition and ordered a summons issued for appellant. Summons was served upon appellant on March 16, 1903, by the sheriff of McLean county, to appear at the time and place designated in the order. Thereafter, at the time and place so fixed by the court the issues made by the petition were tried by a jury who returned a verdict finding that appellant was a spendthrift and by reason thereof was incapable of managing and caring for his own estate. Thereafter, on the same day, one James A. Welch was appointed conservator of appellant. The record of the proceedings then had contains among other recitals, the following: “Now comes the said sheriff and brings into open court said James Bishop alleged to be a spendthrift.”

On May 9, 1904, appellant filed his petition in the County Court verified by his affidavit, wherein he represented that James A. Welch was appointed conservator of his estate on March 20, 1903; that he was capable of managing his estate and transacting his business, and wherein he prayed that a jury might be summoned to ascertain and determine whether or not he was capable of managing his estate and transacting his business. No hearing was had on this petition and the proceeding was abandoned. On November 14,1907, appellant filed another petition in the County Court representing that he was 86 years of age, in feeble health, unable to walk and confined to his house; that on March 20, 1903, he was adjudged a spendthrift by the court and James A. Welch was appointed conservator for his estate, but was not given the care and control of his person; that he was the owner of 400 acres of farm land and two residence properties and a large amount of personal property; that the land was capable of producing an income of from five to eight dollars per acre, but under the management of the conservator was producing less than three dollars and that James A. Bishop, one of his sons, was permitted to occupy one of his residence properties without paying rent; that his granddaughter, Mary F. Funk, had lived with him for more than twenty years and had complete charge of his household affairs and that it was his desire to have her to continue to reside with him and care for him; that on November 11,1907, his conservator came to his house and took possession of his home and put James A. Bishop and Mattie Bishop, his wife, in the house. Further, the petitioner prayed for general relief from the acts of his conservator ; that said Welch be removed as his conservator, and that some discreet and prudent man be appointed his conservator in place of said Welch. On December 10,1907, appellant asked and obtained leave to withdraw said petition.

In and by his petition filed in the County Court December 20, 1907, and amendments thereto filed December 30, and December 31, appellant alleged certain improper conduct on the part of his conservator respecting the management and control of his estate and further represented that the jury which found him to be a spendthrift and incapable of managing and caring for his own estate did not find by their verdict that he was present in court at the hearing then had on March 20, 1903; that the service of summons on him in that proceeding was illegal and void, and the court thereby acquired no jurisdiction over his person or property; that he was not personally in court at the time of said hearing, but was then in Hot Springs, Arkansas; that no notice was given him, as required by statute, unless said summons was such notice; that the petition filed in the said court for the appointment of said conservator. of his estate was greatly defective in that he was not alleged therein, “so to spend, waste, or lessen his estate as to expose himself or his family to want or suffering, or any county, town or incorporated city or village, to any charge or expense for the support of himself or his family,” as by statute in such case made and provided, and for that reason the court acquired no jurisdiction in the premises; that he was wholly ignorant of legal matters and had only learned since November 20, 1907, that the judgment and order in the proceeding to appoint a conservator were illegal and void for want of jurisdiction. The petition prays that the order' entered March 20, 1903, finding appellant to be a spendthrift and appointing a conservator of his estate be vacated, set aside and declared null and void. Upon a hearing in the County Court the prayer of the petition was denied, and from the order entered appellant appealed to the Circuit Court, where upon a hearing, a like order was entered denying the prayer of the petition, and from such order a further appeal is prosecuted to this court.

It is first insisted on behalf of appellant that the petition filed March 16, 1903, for the appointment of a conservator of his estate was not sufficient to give the court jurisdiction of the subject-matter, in this, that appellant was not therein alleged, in the1 language of the statute, “so to spend, waste or lessen his estate as to expose himself or his family to want or suffering, or some county, town or incorporated city or village to any charge or expense for the support of such spendthrift or his family.” The language quoted was contained in section 1, chapter 86, of the statute in force when the petition was filed, and the same language is contained in section 1, chapter 86 of the statute now in force. Eev. Stat. 1908, 1391. By the statute in force March 16,1903, it was, however, provided, that the proceedings subsequent to the making of an application for the appointment of a conservator shall conform “as near as may be” to the provisions of an act relating to the commitment and detention of lunatics, which act then, as now, was designated in the revised statutes as chapter 85, Starr & Curtis, volume 2, 2663.

It will he observed that the section of the statute in question, in force March 16, 1903, and as amended and now in force, does not assume to prescribe a particular form of application to be made by the party applying to the court for the appointment of a conservator, but provides that the County Court, upon the proper application of any reputable citizen, should proceed, etc. The reference in the statute to the matter to be alleged, relates more particularly to the character of the evidence necessary to be adduced in order to authorize a finding that a conservator should be appointed in a particular case, and not to the form of the application moving the court to act in the premises. "Whether or not the application for the appointment of a conservator is a “proper application” within the meaning of the statute is to be determined by the court. In the case at bar, however; the appellant in and by his petitions filed, respectively, May 9,1904, and November 14, 1907, without specially limiting his appearance, did not question the regularity of the prior proceedings, but recognized the binding force and effect of the judgment of the County Court appointing a conservator of his estate. By thus appearing generally to the merits appellant must be held to have waived 'any jurisdictional defect arising out of the alleged insufficiency in the allegations of the application for the appointment of a conservator. Ladies of Maccabees v. Harrington, 227 Ill. 511.

It is next urged on behalf of appellant that the County Court was without jurisdiction to adjudge bim a spendthrift and to appoint a conservator for his estate because he was not personally present in court when the hearing was had. This insistence is predicated upon certain parol evidence in the record to the effect that at the time the hearing was had, appellant was in Hot Springs, Arkansas; that the service of summons was had upon him when he was on a railroad train, bound for the south, and that appellant was not in fact personally in court when the proceedings in question were had. Conceding that appellant was entitled to notice of the hearing upon the application to adjudge him a spendthrift and to appoint a conservator of his estate, and that the personal presence of appellant at such hearing was a jurisdictional prerequisite, the judicial record of the proceedings wherein appellant was adjudged a spendthrift, offered in evidence on behalf of appellant, shows that appellant was duly served with summons by the sheriff of McLean county to appear at the time and place fixed by the court for the hearing upon said application, and further shows, as follows: “Now comes the said sheriff and brings into open court said James Bishop, alleged to be a spendthrift.”

A judicial record imports absolute verity and cannot be impeached by parol testimony. “When the record is once made up it is conclusive upon all parties until altered or set aside by a court of competent jurisdiction, and all questions relating to the time when it was in fact made, or in regard to the authority on which it was made, or in respect to the truthfulness of its recitals, must be settled by reference to the record alone. But if an order is improperly entered, or does not state the facts as they actually occurred, application may be made to the court in which the record is, to correct its record.” West Chicago Street R. R. Co. v. Morrison, 160 Ill. 288. The same doctrine was announced in Roche v. Beldam, 119 Ill. 320, and it was there further said: “If the record, as it remains in the Circuit Court, does not state the facts as they actually occurred, defendant should have made application to have the court correct the record, so as to make it speak the truth.” The petition here involved does not seek to have the judicial record, as made, amended or corrected, but merely seeks to vacate a judgment of a court of competent jurisdiction upon alleged jurisdictional grounds which are contradicted by the express recitals of the record. In such case the record must be held to be conclusive. Furthermore, the filing by appellant of his petitions of May 9, 1904, and November 14, 1907, heretofore mentioned, whereby he appeared generally to the merits, constituted a waiver by him of any lack of jurisdiction by the County Court of his person. Quartier v. Dowiat, 219 Ill. 326.

There is a clear distinction between a proceeding instituted to adjudge a person a lunatic or insane and a proceeding instituted to adjudge a person a spendthrift. The former relates to an inquiry and determination as to the condition of mind of the patient without special reference to his property, while the latter relates to an inquiry and determination as to certain habits of the person involved regarding his disposition to spend, waste or lessen his estate. The sixth paragraph of section 1 of the act relating to the construction of statutes specifically defines the words insane person, lunatic and spendthrift as follows: “The words ‘insane person’ and ‘lunatic’ shall include every idiot, non compos, lunatic, insane or distracted person; and the word ‘spendthrift’ shall include every person, who is liable to be put under guardianship on account of excessive drinking, gaming, idleness or debauchery.” Rev. Stat. 1908, 2084.

By the verdict of the jury and the. judgment of the court in this case, appellant was found and adjudged to be a spendthrift, and the provisions of the statute relating to insane persons and lunatics were not, therefore, wholly applicable to the conduct of the proceedings. The provision in section 1 of chapter 86, in force March 16, 1903, that the proceedings in the County Court subsequent to the application for the appointment of a conservator shall conform “as near as may be” to the provisions of an act relating to the commitment and detention of lunatics does not demand a strict compliance with the provisions of said last mentioned act. The phrase “as near as may be” is merely directory and advisory, and is to be construed as contemplating some variation from the prescribed course and leaving it in the discretion of the court to reject such provisions of the act as are not strictly applicable to the character of the proceedings involved. Rock Island Nat. Bank v. Thompson, 173 Ill. 593; Potter v. Robinson, 40 N. J. Law, 114.

Upon the errors assigned and argued on behalf of appellant we perceive no reason for disturbing the judgment of the Circuit Court, and the same will be affirmed.

Since the foregoing opinion was written and adopted, but before the same was filed, the death of the appellant, James Bishop, has been suggested and Wesley Stubblefield, as executor of the last will and testament of said deceased, has been substituted as party appellant.

Affirmed.


text:
    John Vance, Appellee, v. Monroe Drug Company, Appellant.
    1. Master and servant—when lack of knowledge of defect in machinery not available to master. If a defect in machinery actually exists and there is evidence tending to show that the master, through its foreman, had express notice of such defect and promised to repair the same and that subsequent to the making of such promise informed the servant that the necessary repairs had been made, it cannot avail the master to say that the defect if any existed would not have been known to him by the exercise of reasonable care and diligence.
    2. Appeals and errors—when lack of evidence cannot he urged. If proof of a material fact was not made because of an objection interposed by the complaining party, such lack of proof cannot be urged on review.
    3. Appeals and errors—when assignment of error not considered. If the abstract does not show the rulings etc. upon which the assignments of error are predicated, such assignments of error will not be considered.

      4. Instructions—when failure to require proof of particular allegation not erroneous. An instruction which authorizes a verdict for the plaintiff without requiring proof by him of a particular allegation of his declaration, is not erroneous if it does demand proof of sufficient allegations of the declaration to entitle a recovery under one or more counts of such declaration.
    5. Instructions—when reference to affirmative and negative testimony not ground for reversal. Held, that the giving of an instruction containing such a reference though inappropriate was not prejudical error in view of the fact that another instruction given defined the distinction between affirmative and negative testimony.
    6. Personal injuries—propriety of exhibition of injured member. It is proper to permit the jury to see the injured hand of the plaintiff but it is prejudicially erroneous to manipulate such hand for the purpose of determining its mobility.
    7. Evidence—competency of other accidents than that in issue. While it has been held that evidence of accidents to other persons arising from the same cause is competent not for the purpose of showing independent acts of negligence but as tending to show that the common cause of the accidents was a dangerous and unsafe thing and also as tending to show knowledge of the party charged with the duty to maintain such thing in a reasonably safe condition, such evidence is to be admitted with great caution and it must clearly appear that the cause of such accidents was precisely the same as that involved in the particular case on trial and that such accident occurred under like circumstances.
    Action in case for personal injuries. Appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding.
    Heard in this court at the November term, 1908.
    Reversed and remanded.
    Opinion filed May 22, 1909.
    Charles J. Scofield and Matthew F. Carrott, for appellant.
    J. T. Gilmer, Wilson & Wall and Vandeventer & Woods, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit by appellee against appellant to recover damages for a personal injury alleged to have been occasioned by the negligence of appellant. A trial by jury in the Circuit Court of Adams county resulted in a verdict and judgment against appellant for $1,600.

The several counts of the declaration each allege in substance that on October 30, 1907, appellant was possessed of a circular saw which was used for sawing boards in connection with its business; that the said saw was fastened to a revolving arbor and by means of certain pulleys, shafting and belting operated by steam or electric power, was caused to revolve with rapidity; that above the said arbor was a flat surface frame four feet wide by eight feet long, having a slot in the center through which the saw projected five inches, and having a guide at the side so that a person engaged in sawing boards stood in front of the saw and holding the board against the guide and pressing the board against the saw while it revolved, thereby cut the board as desired; that on October 29, 1907, appellee, while in the employ of appellant, was directed by. the foreman of appellant to cut certain boards with said saw, which said saw on account of some defect unknown to appellee, but which might have been known to appellant by the exercise of reasonable care, wabbled, jumped and jerked whereby its operation was attended with danger to the person of appellee; that appellee then and there informed the said foreman that the said saw wabbled, jumped and jerked, and on account thereof subjected appellee to danger, and then and there requested the said foreman to repair the said saw and put the same in a reasonably safe condition, and that the said foreman then and there promised appellee that he would in a reasonable time repair said saw and make the same reasonably safe and secure; that appellee relying upon the said promise of said foreman, continued in the employment of appellant a reasonable time to permit the performance of such promise, but that appellant negligently failed to perform the said promise within a reasonable time, and on October 30, 1907, without having performed said promise, negligently directed appellee to cut some boards with the said saw, and then and there falsely, negligently and wrongfully stated to appellee that the said saw had been repaired and fixed, and was no longer dangerous; that appellee then and there relying upon the said statement of the appellant, made by and through its said foreman, and believing the same to be true and being ignorant of the fact that appellant had failed to perform the' said promise, obeyed the direction of said foreman and while obeying the said direction and while working with the said saw in the customary and usual manner, and while in the exercise of ordinary care for his own safety, the said saw wabbled, jumped and jerked, and thereby caused the hand of appellee to be thrust against the said saw and greatly cut, lacerated and injured.

Appellee testified that previous to his employment by appellant on October 16, 1907, he had had some experience in working with a circular saw; that during the first eight days of his employment he was engaged in putting lids on boxes; that thereafter, McGee, the foreman of appellant, directed him to run the saw in question and that he then ran the saw a little over one hour; that when he first started to run the saw he noticed that it wabbled from side to side, and that it occasionally took sudden jerks; that when he noticed that condition he went to McGee and told him the saw was dangerous and some one was liable to get hurt, and that McGee made no reply; that he then resumed the work of putting lids on boxes, and two days later he was directed by McGee to run the saw again; that the saw then acted as it did before, wabbled and gave a sudden jerk; that he again went to McGee and told him the saw was dangerous, that it wabbled and jumped and he was liable to get his hand cut off or cut in two, and that McGee replied, “Go ahead, and I will see to it soon;” that the following day he resumed the work of putting lids on boxes and continued at that work for two days; that on the evening of the third day McGee came to him and wanted bim to work overtime, as they were rushed with work, and then told him to run the saw; that he asked McGee if the saw was all right and McGee replied, ‘ ‘ The saw is in good condition, go ahead;” that he worked with the saw about fifteen minutes when it commenced to zigzag back and forth and gave a sudden jerk, causing the board which he was ripping, to fly up on the saw and causing his hand to be thrown against the saw; that he was then exerting his whole weight against the board to carry it through the saw, which was about two-thirds the way through the board when the saw caught the board at its back, thereby throwing it out. Appellee further testified that there were metal strips along the edges of the slot in which the saw revolved, and that occasionally when the saw wabbled, the teeth of the saw struck said strips with sufficient force to make sparks of fire; that the saw ran smoothly and properly for fifteen or twenty minutes and then suddenly wabbled and jerked and then ran smoothly again for fifteen or twenty minutes, without any apparent cause. Rudolph Hartung, who generally operated the saw during the time that appellee was directed to operate it, and who was operating it immediately prior to the time appellee was operating it when he was injured, said he had seen the saw go to one side enough to strike the metal plates on each side of the slot. Several witnesses called on behalf of appellee and who qualified as experts in the operation of circular saws, testified- that it was possible for a circular saw such as the one in question to run smoothly for a time and then to wabble and jerk and then run smoothly again; that this condition might be caused by improper filing and setting of the saw, or by overheating of the saw causing it to lose its temper and become sprung.

Appellant’s foreman, McGee, denied that appellee had made any complaint to him with reference to the manner in which the saw operated, or that he had told appellee in substance that he would see to it soon, or that he had assured appellee that the saw was all right. Several witnesses called on behalf of appellant, and who qualified as experts in the operation of circular saws, after examining the saw which was offered in evidence as being the saw which appellee was operating at the time of his injury, testified that the saw showed no appearance of having lost its temper or being sprung and that it was impossible for a saw of that kind to run smoothly for a time and then wabble and jerk and then run smoothly again, unless it was improperly operated by feeding the lumber to it in an improper manner. There is no evidence in the record tending to show that the saw was improperly fastened, or that the shafting, pulleys and belts by means of which the saw was caused to revolve were not properly adjusted. The only reasonable inference to be drawn from the evidence, if the testimony of appellee and that of the witnesses called on his behalf is to be given credence, is, that the saw had some inherent defect, not ascertainable by an ordinary examination, which caused it to wabble and jerk as claimed by appellee. To one having no experience in the operation of circular saws it would appear unreasonable and almost incredible that in the absence of any derangement in its equipment and in the mechanism by which it was operated, a circular saw, if properly operated, could run smoothly for a time and then wabble and jerk and then run smoothly again. Upon consideration, however, of the conflicting evidence upon that question we are not prepared to say it is impossible for such a condition to exist, and that the jury were not warranted in finding that such condition did in fact exist in this case.

If the defect in fact existed there is evidence tending to show and the jury were not unwarranted in finding that appellant through its foreman had express notice of such defect and promised to repair the same, and that subsequent to the making of such promise to repair it informed appellee that the necessary repairs had been made. In this state of the case it cannot avail appellant to say that the defect, if any existed, could not have been known to it by the exercise of reasonable care and diligence. Norton Bros. v. Sczpurak, 70 Ill. App. 686.

It is urged on behalf of appellant that appellee must be held to have assumed the risk, because there is no evidence in the record tending to show that appellee relied upon the promise of appellant’s foreman to repair the saw, if any such promise was made. The record discloses that when counsel for appellee sought to adduce such evidence they were not permitted to do so upon an objection interposed by counsel for appellant. Appellant, therefore, is in no position to urge the lack of such proof.

At the instance of appellee the court gave to the jury the following instruction:

“The court instructs the jury that when an employer or his foreman having authority to remedy defects in machinery, is notified by the servant of the employer of defects in machinery that renders the service such servant is engaged to perform more hazardous, and such employer or foreman thereupon expressly promises to make the needed repairs, the servant may rely on such promise, and may, if he so relies on such promise, continue in the employment a reasonable time to permit the performance of such promise without being guilty of negligence in so remaining in such employment ; and, if in such case, during such time, any injury results from such defects to the servant while he is in the exercise of ordinary care and caution for his own personal safety, from the negligence of Ms employer in manner and form as charged, the servant may recover from the employer Ms damages for such injury, except when the danger is so imminent that no prudent person would undertake to perform such service under such conditions.”

It is urged against this instruction that it ignored a material allegation in each count of the declaration and permitted a recovery without requiring appellee to establish the truth of such allegation by the evidence. Appellee, for the purpose of avoiding the defense of assumed risk, alleged in each count of his declaration two separate and distinct grounds: First, the direction to him by appellant to operate the saw, his complaint to appellant of the defect in the saw and the danger to be apprehended from such defect, the promise of appellant to repair the saw within a reasonable time and the reliance by appellee upon such promise of appellant; and second, the failure of appellant to perform such promise, the direction by appellant to operate the saw coupled with the false statement by appellant that the saw had been repaired and was no longer dangerous, and the reliance by appellee upon the truth of such statement. These allegations in the declaration in question are so closely allied to allegations setting forth in one count of a declaration two separate and distinct grounds of negligence upon which a recovery is sought, as to be governed by the same rule regarding the duty of the plaintiff with reference to establishing the truth of such allegations by a preponderance of the evidence. In Franklin Printing & Pub. Co. v. Béhrens, 181 Ill. 340, it was held, that notwithstanding each of the counts of the declaration contained different allegations of negligence and the counts might have been bad on special demurrer for duplicity, if sufficient of the negligent acts alleged in each count were proved to constitute a cause of action, nothing more was necessary. The same rule is announced in substance in Weber Wagon Co. v. Kehl, 139 Ill. 644, and in N. Y. C. & St. L. R. R. Co. v. Blumenthal, 160 Ill. 40. So in this case we think if either one of the grounds alleged in the declaration in avoidance of the defense of assumed risk was established by the evidence it was sufficient, and that it was not incumbent upon appellee to prove both grounds as alleged. The instruction might better have been refused because it states a mere abstract proposition of law, but it is not subject to the objection urged. As applied to one of the grounds alleged in the declaration in avoidance of the defense of assumed risk the instruction is substantially an accurate statement of the law. Taylor v. Felsing, 164 Ill. 331.

The sixth instruction given at the instance of appellee in its reference to affirmative and negative testimony was not applicable to the testimony of any witness in the case, and in the absence of any instruction •defining the distinction between affirmative and negative testimony, the instruction was calculated to mislead the jury. We do not, however, regard the giving of this instruction as reversible error. The court did not err in refusing to give to the jury the twenty-fourth instruction tendered by appellant.

There was no impropriety in permitting the jury to look at appellee’s injured hand, but it was highly improper for the jurors to manipulate the hand for the purpose of determining its mobility, and for appellee at the request of one of the jurors to grasp the wrist of the juror with his injured hand, which was obviously done for the purpose of enabling the juror to observe the degree of mobility of the injured hand and the amount of strength winch appellee was able to exert. In a case as close upon the facts, as to the liability of a defendant to respond in damages, as is the case at bar, and in view of the grave doubts arising from the evidence with reference to the extent and permanency of the injury, we think the conduct of the trial in the respect mentioned was harmful and prejudicial to appellant and demands a reversal of judgment. Appellee was thereby given an opportunity to simulate an injury which may not in fact have existed to the extent claimed.

A careful consideration of the evidence bearing upon the question of the extent of the injury to appellee impels us to the conclusion that the damages are excessive.

Appellee assigns cross-errors upon the refusal of the court to permit the witnesses Budolph Hartung and Edward Nolan to state whether or not they were hurt with the saw when working upon it. Neither the abstract of the record filed by appellant nor the additional abstract furnished by appellee shows that any questions were asked said witnesses upon that subject nor the ruling of the court thereon nor that appellee objected and excepted to such ruling; and the assignment of such cross-errors is not properly presented for review. For the same reasons the cross-errors assigned upon the alleged refusal of the court to permit the witness, Harry Cooper, to testify whether or not the saw wabbled and jerked when he operated it, and upon the alleged refusal of the court to permit the witness McGree to answer a certain question upon •his cross-examination, cannot be considered by us. While it has been held that evidence of accidents to other persons arising from the same cause is competent, not for the purpose of showing independent acts of negligence, but as tending to show that the common cause of the accidents was a dangerous and unsafe thing, and also as tendng to show knowledge of the party charged with the duty to maintain such thing in a reasonably safe condition (City of Bloomington v. Legg, 151 Ill. 9; Fraser v. Schroeder, 163 Ill. 459; City of Taylorville v. Stafford, 196 Ill. 288; City of Chicago v. Jarvis, 226 Ill. 614), such evidence is to be admitted with great caution, and it must clearly appear that the cause of such accidents was precisely the same as that involved in the particular case on trial, and that such accident occurred under like circumstances.

The judgment of the Circuit Court is reversed and the cause remanded for another trial.

Reversed and remanded.


author: Mb. Justice Baume

text:
    International Text-Book Company, Appellant, v. W. A. Mueller, Appellee.
    Corporations—what “doing business in this state” within meaning of statute regulating foreign corporations. Meld, under the evidence, that a corporation organized for the purpose, among other things, of conducting schools hy correspondence, was doing business in this state within the meaning of the statute regulating foreign corporations.
    Assumpsit. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed June 28, 1909.
    J. B. Moffett, for appellant; David C. Harrington, of counsel.
    Charles M. Borchers, for appellee.
   Mb. Justice Baume

delivered the opinion of the court.

This is a suit hy appellant against appellee to recover the sum of $45.80, being the balance alleged to be due upon a certain contract whereby appellant agreed to furnish appellee a course of instruction by correspondence in engine running, and appellee agreed to make payment therefor in monthly installments of $5. A trial by the court, without a jury, resulted in a finding in favor of appellee and judgment against appellant for costs of suit.

By appropriate pleading two issues were presented for trial. First, whether or not appellant being a foreign corporation organized and existing under the laws of the state of Pennsylvania was inhibited from maintaining the suit because of its failure to comply with the provisions of an Act, entitled, “An Act to require every foreign corporation doing business in this state to have a public office or place in this state at which to transact its business, subjecting it to certain conditions and requiring it to file its articles or charter of incorporation with the secretary of state, and to pay certain taxes and fees thereon,” approved May 18, 1897, in force July 1, 1897, as amended by an act bearing the like title, approved April 22, 1899, in force July 1, 1899; and, second, whether or not appellee, being a minor, was liable upon the contract as for necessaries. In the view we take of the ease, the determination of the issue first above stated precludes the necessity of considering the second issue.

The uncontroverted facts in the case are substantially as follows: Appellant is a Pennsylvania corporation, having its principal place of business at Scranton, where as proprietor of the International Correspondence Schools, it edits, prints and publishes lesson or instruction papers, pamphlets and text books for the instruction of students in literary and technical knowledge. For the purpose of securing such students, appellant employs a corps of solicitors who are supervised by district and division superintendents. Each student is required to sign a contract to pursue the course of instruction which he may select, and when such contract is approved by appellant at Scranton (which approval is merely a formal matter) the necessary instruction papers are sent to the student by mail or express, at intervals, so long as he shall keep up his payments and shall return to appellant such lesson, papers as he has studied with his answers there'to, for inspection, correction and grading. When the student has paid $10 upon his contract, appellant provides him as bailee with a text book or text books covering the course of instruction pursued up to that time. Appellant ships all of its text books for use of its students, within the territory where appellee resided, in carload lots to Chicago from which place they are sent to the students residing within such territory by mail or express. After appellee had pursued his studies for some time and had paid to appellant $15 upon the contract, he, for some reason which is here immaterial, refused to make any further payments thereon or to further pursue the prescribed course of instruction.

It is urged on behalf of appellant that in making the contract and performing the same as above stated, it was not transacting business or exercising its corporate powers or franchises in the State of Illinois within the meaning of the act relating to foreign corporations, and that a holding to the contrary would be in conflict with the commerce clause of the Federal constitution, whereby the power to regulate commerce between the several states is vested exclusively in Congress, and would operate as a restriction upon interstate commerce. It is conceded by appellant that if it shall be held to have been transacting business or exercising its corporate powers or franchises in this state, it cannot maintain this suit, and that a judgment of affirmance must follow.

The expression “doing business in this state,” which is the equivalent of the expression “transacting business in this state,” has been defined to mean, doing, the business or character of business for which the corporation was organized. People v. C., I. & L. Ry. Co., 223 Ill. 581. The mere fact that appellant employed agents to solicit prospective students to enter into contract with it, whereby it became bound to send to such students lesson papers, pamphlets and text books for the purpose of instruction, might not constitute transacting business in this state, within the meaning of the statute, but the evidence in this case shows that appellant was organized for the purpose, among others, of conducting schools by correspondence, and its functions in that regard involved much more than the mere delivery by it to its students of lesson papers, pamphlets and text books. In the performance of its corporate functions it examined and corrected, from time to time by correspondence the papers submitted to it by its students in the several courses of study pursued by them and in like manner informed the students as to the character of the work done by them. The insistence by appellant that in so conducting a school it was not transacting business in Illinois, because its buildings, instructors and executive officers were all located in Scranton, Pennsylvania, is not tenable in view of the fact that a school cannot exist without pupils, and necessarily where the pupils and instructors are located in different states, the school cannot properly be said to have an exclusive situs in one state. Furthermore, the evidence discloses that appellant maintained a distributing office in the city of Chicago in this state, where it shipped text books in carload lots, which text books it thereafter sent in single volumes by mail or express from Chicago to its students residing within a certain territory. This constituted transacting business in this state.

The precise question involved in the case at bar was determined by the Supreme Court- of Wisconsin in a similar suit brought by the appellant here against one Peterson, in which it was held that: “The details of soliciting pupils, imparting instruction, the delivery, bailment and return of books, would also come within the prohibition against transacting business in this state.” International Text Book Co. v. Peterson, 133 Wis. 302. The provisions of the Wisconsin statute with reference to foreign corporations doing business in that state are very similar to the provi- ' sions of the statute here involved.

The judgment of the Circuit Court was right and is affirmed.

Affirmed.


author: Mr. Presiding Justice Puterbaugh

text:
    John Demereski, Appellee, v. Citizens Coal Mining Company, Appellant.
    1. Mines and Miners Act—when wilful violation established. Held, that the evidence in this case justified the jury in finding a dangerous condition of the roadway of the mine which authorized a recovery.
    2. Mines and Miners Act—what not defense to action charging wilful violation. The doctrine of assumed risk does not apply in an action brought under the Mines and Miners Act charging a wilful violation thereof."
    3. Evidence—when permitting leading questions not ground for reversal. It is within the sound discretion of the trial judge to permit or to refuse to permit the asking of leading questions; his action in such regard is not ground for reversal unless an abuse of such discretion is shown.
    Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 24, 1908.
    Rehearing denied and opinion modified May 20, 1909.
    J. C. & W. B. McBride, for appellant; M. U. Hayden and Conkling & Irwin, of counsel.
    Stevens & Stevens, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This action was brought by appellee to recover damages for personal injuries received by him while in the employ of appellant, which it is charged were occasioned by the wilful failure of appellant to comply with the requirements of the statute relative to the operation of coal mines. Judgment was rendered upon the verdict of the jury in favor of the plaintiff for $2,500.

The declaration charges wilful violations of the statute in failing to have a danger signal displayed, to place a conspicuous mark at the place where appellee was working, and to have snch place inspected by a mine examiner.

There is evidence tending to show the following facts: Prior to October 6, 1906, the mine operated by appellant contained an entry along and upon the entire length of which was laid a track. Against the north rib, about 6 feet north of the north rail of the track, was piled a quantity of old gob. Prior to his injuries, appellee had been employed by appellant for about twelve days as a laborer, his duties being to shovel dirt, clean tracks, .and perform other ordinary work about the mine. During the night of Wednesday, October 3, 1906, a large body of slate fell from the roof of the entry and covered the track for a distance of about eighteen feet. About midway of the fall, and on the north side of the track, there was left remaining in the roof a large piece of slate, at least six inches thick and about four feet wide and five feet long, which projected to the south, its end being about two feet north of a point directly over the north rail. On Thursday, the following morning, appellee and one Swigity, pursuant to the direetions of the mine manager, began removing the fallen •slate. On Friday, Beeves, a timber man, set some props under the slate which remained in the roof east of the east side of the fall, and appellee and Swigity then proceeded to remove the slate which had fallen upon the track and for a space of within a distance of two feet outside the rail to the north side of the track, working westward in so doing. With the larger pieces of fallen slate a retaining wall, about six feet in height, slanting to the north, was built parallel with the track, its base being about two feet north of the north rail. The remainder of the slate was piled between this wall and the old gob.

The testimony adduced by appellee tended to show that the piece of slate in question was left projecting out over the retaining wall toward the track about eighteen inches. On the morning of Saturday, the day of the accident, Finn, a timber man, assisted by appellee and Swigity, in order to hold the rock which formed the roof, put up a cross bar over the track, supported at either end by a prop and standing outside the rail. The north end of the cross bar was placed just south of the south end of the projecting piece of slate, but did not support it. About an hour afterward, while appellee was engaged in cleaning up the fallen slate, under the cross bar, the projecting piece of slate fell from the roof upon the retaining wall and thence to the track, knocking out the north leg of the cross bar, and so injuring appellee’s leg that amputation was necessary.

It is first urged as ground for reversal, that the evidence fails to show the existence of a dangerous condition at the time and place where appellee was injured; that the slate in question fell from outside of the roadway, at a point where no inspection or warning and danger signals were required by the statute, and that the piece of slate that fell did not project over the edge of the wall built by appellee, and was not over the roadway where he was working. It is obvious that the erection of the retaining wall in the manner described served to widen the roof of the entry. While the evidence upon the question is not explicit as it might be, because of the failure of some of the witnesses to clearly distinguish between the debris already in the vicinity and that created by the fall, we think the jury was warranted in finding that the piece of slate in question did project over the retaining wall. This, as well as the question whether the slate was loose, were issues of fact for the jury, and there was sufficient evidence to justify a finding in the affirmative. A condition of the roadway was thus created which was manifestly dangerous to one working therein. Notwithstanding the mine manager and his assistant testified that they examined the place on the day of the accident and found no dangerous conditions, the fact that the slate was loose tended to show that the mine examiner failed to particularly examine the edges of the fall as is required by the statute. Appellee was but a common laborer engaged in removing debris from the track. The evidence does not disclose that he was engaged in making a dangerous place safe so as to take him out of the protection of the statute.

It is also urged that the court erred in permitting counsel for appellee to ask the witness Sammon leading questions. The matter was within the sound discretion of the court, and we are unable to say that such discretion was abused. The modification of several of appellant’s instructions could not have been prejudicial. The error in injecting into them the element of assumed risk, which question was not involved in the case, could only have misled the jury to the advantage of appellant. We find no error in the rulings upon the other instructions.

The judgment of the Circuit Court is affirmed.

Affirmed.


author: Mr. Peesiding Justice Puterbaugh

text:
    Mary A. Mulligan, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    1. Verdicts—when not disturbed. A verdict will not be set aside as against the weight of the evidence unless clearly and manifestly so.
    2. Insurance—when condition requiring payment of premium waived. If the agent of the company agree that the premium might be paid in weekly installments, the condition of the policy requiring actual payment and acceptance of the full semi-annual premium before the same should become effective, is thereby waived,
    3. Insurance—when policy effective before delivery. If the actual payment of the premium in advance as provided by the policy is waived by an agreement, receipt of such policy by the agent of such company who has made such agreement, for the purpose of delivery to the assured, is tantamount to a delivery to such insured and the policy is effective.

      4. Vabiaitces—when must he pointed out. A variance between the declaration and proof must be pointed out during the trial; otherwise it is waived.
    Assumpsit. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Cbeightoit, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed December 23, 1908.
    Rehearing denied and opinion modified May 21, 1909.
    Conkling & Irwin, for appellant.
    S. H. Cummins, for appellee.
   Mr. Peesiding Justice Puterbaugh

delivered the opinion of the court.

This is an action upon a life insurance policy issued by the appellant company to Marshall E. Mulligan under the terms of which appellee, the mother of the assured, was the beneficiary. The cause was tried by the court without a jury, resulting in a finding for the plaintiff and judgment in her favor for the sum of $495.48. The evidence shows that on April 9, 1907, the assured made application for a policy in the appellant company in the sum of $500; that a policy was issued by it thereunder at the home office in New York City, on April 15, 1907, and forwarded to the local office of the company |n Springfield, Illinois. By the terms of the application and policy a semi-annual premium of $6.51 was to be paid upon the delivery of the policy to the assured.

There is evidence tending to show that when the policy was received by the assistant superintendent at the latter city, it was delivered to Cole, the agent who solicited and obtained the application, for the purpose of delivery to the assured; that on April 23, 1907, appellee paid to Young, an agent of the company, the sum of one dollar, and received from him a receipt which recited that the same was received as a deposit to be applied on account of premium on policy, without describing the same; that on April 27, 1907, the assured died as the result of a surgical operation. The policy never actually came into the possession of the assured nor anyone for him, and it is insisted by appellant that neither the assured nor appellee was ever entitled to receive the same, nor was appellant under any obligation to deliver it, for the reason that the first semi-annual premium was never paid. Appellee’s contention is that the assured so far complied with his contract as to entitle him to the possession of the same.

The testimony of appellee and her husband tended to show that the agent, Cole, at the time he accepted the application, agreed with the assured that he might pay the first premium in weekly installments, and that the policy would be delivered when it reached Springfield. Cole testified that before signing the application the assured asked him how long he would have in which to pay the first premium, and that he informed him that about ten days would elapse before the arrival of the policy and that he would thus have six weeks in which to pay it; that if he paid a dollar down and a dollar a week until the policy arrived, or until the policy would have to be sent back, he would have the entire premium paid; that the sooner he paid the premium and got the company’s official receipt, the sooner the policy would be in force, but that the policy would not be in force until the premium was paid.

The trial judge who saw and heard the witnesses, seems to have credited the testimony of appellee and her husband and disbelieved that of Cole. The issue was purely one of fact. We are unable to say that the finding of the judge, which is entitled to the same weight as the verdict of a jury, was manifestly against the weight of the evidence, and we are therefore bound by his conclusions.

If Cole agreed, that the premium might be paid in weekly instalments the condition of the policy requiring actual payment and acceptance of the full semiannual premium before the same should become effective was thereby waived. Ins. Co. v. Keach, 32 Ill. App. 427; S. C. 134 Ill. 583; Hancock Ins. Co. v. Schlink, 175 Ill. 284; Berliner v. Ins. Co., 121 Calif. 451; Dunn v. Ins. Co., 39 Atl. Rep. 1075.

In view of such agreement the receipt of the policy by Cole for the purpose of delivery to the assured was tantamount to a delivery to him, notwithstanding Cole, in fact, never parted with its possession, and although by its terms actual delivery and payment of the first premium were essential to render the same operative. Ins. Co. v. Babcock, 104 Ga. 67; May on Insurance, sec. 60; Joyce on Insurance, sec. 95; Ins. Co. v. Thomson, 94 Ky. 253; Ins. Co. v. Schlink, supra.

Having failed during the trial to point out with sufficient particularity the alleged variance between the declaration and the proof and thus afforded appellee an opportunity to amend her declaration, appellant cannot now raise the question. Transp. Co. v. Sugar Co., 228 Ill. 121.

We have considered the other errors assigned and are of opinion that the same are without merit. We find no prejudicial error in the rulings of the court upon the admission of evidence or the propositions of law.

The judgment will be affirmed.

Affirmed.


text:
    Neosha M. Mills, Appellee, v. Walter Teel, Appellant.

      Practice—effect of failure to present propositions of law. No questions of law are preserved for review unless they arise upon the pleadings or upon rulings upon evidence.
    Forcible entry and detainer. Appeal from the Circuit Court of Schuyler county; the Hon. Guy R. Williams, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.

      Glass & Bottenberg, for appellant.
    D. L. Mourning and B. O. Willard, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in forcible entry and detainer by appellee against appellant, by which she seeks to recover possession of certain real estate which she claims appellant wrongfully withholds from her. A trial was had before the court without a jury, which resulted in a judgment in favor of appellee. Appellant contended upon the trial that he had been appointed, had qualified, and at the time of the commencement of the suit was acting as conservator of appellee, and as such was entitled to possession, while appellee contended that such appointment was void for the reason that at the time the same was made the County Court had no jurisdiction of her person. The position of appellant in this court is that he was at the time and under the circumstances, conservator de facto and that his acts as such cannot be questioned in a collateral proceeding. The question presented is purely a legal one, and inasmuch as no propositions of law were submitted to the trial court, there is nothing for this court to review, and the judgment must be affirmed.

Affirmed.