text:
    Isaac A. Petty, Appellee, v. Samuel L. Stebbins et al., Appellants.
    Gen. No. 5482.
    1. Personal injuries—who not trespasser or mere licensee. A person who enters a merchandise store for the purpose of making purchases there is not a mere licensee or a trespasser but is in such store by the implied invitation of the owner • and if injured while properly using such premises in an effort to inspect merchandise, such owner is liable if he has failed to exercise ordinary care.
    2. Evidence—what competent to show invitation to enter store. Held, that the conversation objected to in this case was competent as showing not only the implied invitation given to every customer who enters an open store during business hours, but also an express invitation to the plaintiff.
    3. Evidence—-when prior accidents may he shown. Prior accidents may sometimes be shown for the purpose of establishing knowledge by the owner of the existing danger.
    Action in case for personal injuries. Appeal from the City Court of Kewanee; the Hon. H. Sterling Pomerot, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    Rehearing denied November 23, 1911.
    Anderson & Andrews and Thomas J. Welch, for appellants.
    Charles E. Mulligan, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

On November 29, 1909, between eight and nine o’clock a. m., appellee went into the store of appellants in the city of Kewanee and, while there, fell through an open trap door into the cellar beneath and was seriously injured. He brought this suit against appellants to recover damages therefor and had a verdict and a judgment for $400 from which defendants below appeal. Appellants concede that the damages are moderate, if liability exists, and it will therefore not be necessary to describe appellee’s injuries. It is contended that the court erred in rulings upon evidence and instructions and in refusing to enter a judgment for defendants upon the special findings, but the main contention is that under the proofs appellants are not liable.

The store was 100 feet long and 32 feet wide, and the only business that the proof shows was carried on there was the selling of apples and potatoes, the making of cider and the repair of automobiles and bicycles. The store faced north with a glass front. Somewhere in the front of the store was a desk. There was a counter 40 feet long, on the west side of the store. Back of that a lot of potatoes were piled in sack" There was then an open space, and in the southwest corner, running along the west wall from the south end north perhaps 16 feet, was an apple bin. In the open space just mentioned was a trap door by which access could be had to the cellar beneath. Somewhere near the middle of the store was a cider mill. On the east side of the store, along its south half, were benches and tools. There was a passageway through the center of the store from north to south, and double doors with windows in them at the rear. In that passageway next east of the north end of the apple bin and extending north as far as the trap door, stood an automobile awaiting repairs. The apples had been taken out of the south end of the apple bin near the south door. There were sample apples in the window in the north end of the store. There was no satisfactory proof that appellants were partners, as charged in the declaration, nor that Effie A. Stebbins was a part owner, but appellants’ instructions assumed that both appellants were the owners of the store and that is practically conceded in the argument here. At the time of the accident two men were at work at or near the cider mill, a'nd Wilbur Stebbins, a nephew of the proprietors, was the clerk in charge. Isaac A. Petty was about 72 years old, and in the fall of each year engaged in the business of peddling apples, potatoes and cider, with the aid of a horse and wagon. About two days before the accident he came into the store and told Samuel L. Stebbins, one of appellants, that he was going to get another horse and wagon and peddle with two rigs and would want to buy some apples, and Stebbins told him to come. Isaac had a son, Irving Petty, who was going to assist him in peddling and who had worked in the same business and who had previously conducted that business. On the day above named, Isaac Petty went into the rear door of this store, saw that the south end of the apple bin was empty, and walked towards the front of the store. His purpose was to buy apples to supply the two wagons for peddling. At that instant two men were at work near the cider mill, but Wilbur Stebbins, the clerk, had opened the trap door and had gone down cellar to attend to the heating apparatus. Hearing a person walking above, Wilbur came up to the first floor, went north to where Petty stood in the main aisle and spoke to him. Petty asked if Samuel Stebbins was in and Wilbur replied that he was upstairs. There was a door about the middle of the store on the east side, which led upstairs, but Petty had never been upstairs. Just then another customer came in at the front door and Wilbur went north to wait upon that customer. Petty started to go to the apple bin to look at the apples. Because of the position of the automobile he could not readily go to the east side of the bin, but the nearest part of the bin was the north end, to reach which it was necessary to go around the north end of the automobile and across the open space above mentioned. The trap door began at the west wall and extended east 4 feet the cellar began at the west side and went down to- and was about 2y2 or 3 feet wide. The stairway to wards the east. When Petty had been in the store two days before he had been to the north end of the apple bin and he had crossed this open space and the trap door was then closed and he did not know of its existence. On this occasion Wilbur had left the trap door open when he came up from the cellar. The hinges were on the north side and it opened to the north. The evidence for appellee tended to show that that part of the store was dark and that the floor was dark. Petty had never worn glasses. He did not see the open trap door. In going across the open space to reach the north end of the apple bin he stepped into the east side of this hole and fell.

Appellants argue that because Petty did not tell Wilbur that he wanted to buy apples, and because the jury found specially that Wilbur did not have reason to believe that plaintiff would attempt to go to the apple bin and did not know that he would probably go to the apple bin, therefore appellants are not liable; but that Petty was either a trespasser or a mere licensee. We are of opinion that this case is governed by the principles laid down in Pauckner v. Wakem, 231 Ill. 276; Calvert v. Springfield Elec. Light & Power Co., 231 Ill. 290, and Franey v. Union Stock Yards & Transit Co., 235 Ill. 522. The time was during business hours. The store was open for business and appellants’ servant, Wilbur Stebbins, was in control. The apples were in the bin for the purpose of sale. The main aisle and the side passageway were intended to be passed over by persons transacting business with the firm. Appellee was there for the purpose of buying apples from the firm. He had been invited by appellant, Samuel L. Stebbins, to come and get a supply of apples for his peddler’s wagons. We are of opinion that there was an implied invitation to him to use these- passageways for the purpose of inspecting the merchandise he was about to buy. If the automobile had not been there, he would probably have passed a little further south and would have avoided the trap door. The presence of the automobile at that particular place made it necessary or. at least reasonably convenient, for him to pass over the space occupied by the trap door, as he had done two days before. We are of opinion that appellants owed appellee the duty to exercise reasonable care to make the way reasonably safe where a passageway had been provided by them to go to the apple bin. Appellants introduced evidence tending to show that it was sufficiently light in that part of the store so that one could read a newspaper. The questions whether appellee exercised due care and whether appellants were negligent as charged were for the jury and were decided in appellee’s favor.

Appellants contend that the court erred in admitting the conversation between appellee and Samuel L. Stebbins two days before. It was competent as showing, not only the implied invitation given to every customer who enters an open store during business hours, but also an express invitation to appellee to come there and buy apples of appellants. It is contended that the court erred in admitting proof that appellant, Samuel L. Stebbins, had twice fallen through this trap door before this accideht. The evidence was entirely competent to show that he had actual knowledge of the danger, but the court excluded this evidence on motion of-appellants.

The instructions given were in harmony with the authorities above cited. All that was competent in the instructions refused was contained in those that were given. Many of them were improper. Some of them sought to make the case turn upon the failure of appellee to tell Wilbur Stebbins that he wished to buy apples. We find no substantial error in the rulings upon the instructions. The special findings were in our judgment immaterial, being based upon the fact that Wilbur Stebbins did not know that appellee wished to buy apples.

We find no reversible error in the record and the judgment is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    Jennie B. Cummings, Appellant, v. Jesse Sobey et al., Appellees.
    Gen. No. 5484.
    1. Pleading—when proper to permit verified denial of execution of instrument sued on. In a suit begun before a justice of the peace where no written pleadings are required it is proper after the instrument sued upon is offered and the plaintiff has closed his case, to permit a verified denial of the execution of such instrument to be filed.
    2. Instructions—when refusal of correct will not reverse. The refusal of a correct instruction will not reverse where its contents are substantially embodied in another instruction given.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Lake county; the HoN. Charles H. Donnelly, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 3911.
    Ernest S. Gail, for appellant.
    Schumacher, Wenban & Wood, for appellees ; Bowen W. Schumacher, of counsel.
   Mr. Justice Dibell

delivered the opinion of the court.

Mrs. Jennie B. Cummings brought this action before a justice of the peace against Jesse Sobey and E. W. Mooney, partners as Sobey & Mooney, to recover rent alleged to be due to plaintiff from defendants under a written lease, and had a judgment before the justice for $200, from which the defendants appealed to the circuit court, where upon a jury trial, there was a verdict for defendants. A motion by plaintiff for a new trial was denied, defendants had judgment and plaintiff appeals.

After appellant had introduced the supposed lease between the parties and other proof and had rested, defendants sought to prove that their signature to this lease was not genuine and that both copies of the lease actually signed had been lost and that, in the part material to this suit, the leases actually signed differed from that produced by appellant. Objection being made to the competency of this proof, the court allowed appellees to file an affidavit denying the execution of the lease. Appellant contends that the court erred in permitting such an affidavit to be filed after she had closed her case. The suit having been begun before a justice of the peace, the pleadings were oral and justice would require that permission to file such an affidavit should be granted after the lease had been exhibited in evidence. Indeed, it would not have been error to permit it even in a case where the pleadings were in writing (Great Western Tel. Co. v. Lowenthal, 154 Ill. 261), though in such case a plaintiff, taken by surprise, might be entitled to a continuance. Appellant here did not ask for a continuance when this affidavit was filed. We are of opinion there was no error in rulings upon evidence. While the court might well have given one instruction requested by plaintiff, which, was refused, yet we conclude that the principle of that instruction was substantially embodied in instructions which the court gave at appellant’s request. We are of opinion that there was evidence introduced by appellees which required the court to give the instructions given in their behalf, of which complaint is made.

A lease of some kind was executed between the parties which bore date June 20, 1907, and was at a rental of $25 per month in advance, payable at the office of the lessor and which was for one year, with an option or privilege of some kind for two years in addition. The instrument introduced by appellant as the lease between the parties gave said option in the following language:

“It is further agreed that the lessee shall have an option of renewing this lease for two years after expiration of this term on same terms and conditions, provided it must be exercised by July 1st, 1908.”

When July 1, 1908, arrived, nothing had then been said and nothing was afterwards said by appellees tending to show that they wished to exercise their option to have the premises for two years more; but they' thereafter continued in possession and paid the rent monthly and appellant accepted said rent. In fact, she and her husband lived over the store which was the subject of the lease and she obtained a part of her rent in groceries from the store of appellee on these premises. About April, 1909, appellees negotiated with appellant and with her husband, who was her agent with full authority in this matter, for a new lease for three or two years, but the parties disagreed upon certain terms and the new lease, though prepared, was never executed. Thereupon appellees rented another store building in another part of the city of Highwood and moved in. They paid to appellant the rent to July 10, 1909, being the close of that rental year. The key finally reached appellant in a letter dated August 17, 1909, and she replied by a letter, refusing to accept this as a surrender and notifying appellees that their lease did not expire till July 10, 1910, and she should hold them liable for any loss she might sustain. Appellant introduced evidence tending to show that appellees did not remove all their property from the store till August, 1909. Appellees introduced proof tending to show that they started to move about the middle of April; that they had everything out by the first week in May, 1909; and that during the first week of July, 1909, they had twice tendered to appellant the key and all the rent to July 10, 1909, and that appellant each time refused to receive the key or the money. Appellees introduced proof that during the last week in June and the first week in July, 1910, appellant caused a new partition to be put in a certain part of the store to fit it for another tenant. Appellant introduced proof tending to show that this work was done as late as September. Appellees introduced evidence tending to show that when appellees notified the husband and agent of appellant in April, 1909, that they had rented another place, he used language which apparently recognized their right to cease to occupy these premises, and the husband of appellant denied the use of such language.

The case therefore presents chiefly disputed questions of fact. Appellant contends that when appellees continued to occupy the premises after the end of the first year and to pay rent at the stipulated rate and she accepted said rent from them, that this constituted an election by appellees to continue the lease in force for two years more, and that she thereupon had a right to hold appellees for two years more, without there having been any actual exercise of the option or notice thereof to her by July 1, 1908, as she claims her lease provides. The court so instructed the jury in her behalf. But, even if this is correct, the parties could waive the provisions for two years’ further occupancy by express agreement or by their conduct. Here it is a disputed question of fact whether the lease appellant introduced in evidence was the one executed by the parties or whether the lease which they executed contained a different provision. It is a disputed question whether appellant’s agent used language in April, 1909, recognizing the right of appellees to quit the premises. It is a disputed question whether they were out with all their property long prior to July 1, 1909. It is a disputed question whether the rent and key were tendered to appellant before the end of that rental year. It was a disputed question whether appellant, in the latter part of June and the first week of July, took possession and had a carpenter change the interior arrangement of the building by putting in a new partition. On some of these questions there is a clear preponderance of proof in favor of appellees. The proof introduced by appellees tended to show that the special clause in the lease actually signed gave appellees the privilege of renewing the lease for a period of two years, but provided that such privilege should be null and void unless exercised before July 1,1909, and there is no claim that such privilege was exercised before that time. Dikeman v. Sunday Creek Coal Co., 184 Ill. 546. If the jury found from the evidence that appellant ’s agent in April, 1909, recognized the right of appellees to abandon the premises; and that appellees removed all their property from the premises not later than May, 1909, and that appellant took possession the latter part of June, 1909, and changed the interior of the building and erected a new partition to fit the place for another tenant; and that appellees tendered the key and the rent to July 10, 1909, during the first week of July, 1909; and that she then refused but in August accepted the rent and the key; and that her employe in June, 1909, had access to the premises through the rear door, then we are of the opinion that the jury might well find that appellees are not liable to pay rent and the rent to July 10, 1909, during the first week of warranted the verdict if the jury believed the testimony introduced by appellees. The trial court has approved the verdict and we find no grounds upon which we would be authorized to disturb it.

The judgment is therefore affirmed.

Affirmed.

ERRATUM. Appellate Reports, Yol. 164, Page 448. For the 6th line from the bottom substitute the following: for the premises after July 10, 1909. The evidence

      ERRATUM. Appellate Reports, Yol. 164, Page 448. For the 6th line from the bottom substitute the following: for the premises after July 10, 1909. The evidence


text:
    Henry M. Eshbach, Appellee, v. Abraham M. Byers, Appellant.
    Gen. No. 5499.
    1. Pleading'—when plea of tender insufficient. A plea setting up a tender made after suit "brought is insufficient where it does not tender costs up to the time of the making of the tender.
    2. Banks—obligations as to special deposit. If a bank receives a special deposit for the purpose of providing for certain payments and agrees that such special deposit shall be subject only to’ checks drawn on account of such payments, such bank will not be permitted to divert such special deposit.
    Appeal from the Circuit Court of Mercer county; the Hon. Emery C. Graves, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Church & Church and Bassett, Morgan & Hebel, for appellant.
    W. J. Graham, for appellee; D. W. Hamilton, of counsel.
   Mr. Justice Dibell

delivered the opinion of the court.

Albert M. Blaise brought this suit against A. M. Byers & Company Farmers Bank and Abraham M. Byers upon certain checks drawn by Henry. M. Eshbach upon said bank in 1909, some of which checks were payable to Blaise and others were assigned to him by the payees, which checks it was alleged the bank refused to pay. These checks were drawn after the enactment of the Negotiable Instrument Law of 1907. Section 126 of that Act changes the rule theretofore prevailing in this State and enacts that the drawing of a bill of exchange does not operate as an assignment of the fund and the drawee is not liable on the bill unless and until he accepts the same. The bank had not accepted these checks. A demurrer to the declaration was sustained, apparently on that ground. It appeared that Byers was the general partner. Thereafter the name of the bank was dropped from the case and the suit was prosecuted in favor of Eshbach for the use of Blaise against Byers only, and an amended declaration was filed. It contained seven counts. The first was withdrawn at the trial. The seventh was the consolidated common counts, but was qualified by a bill of particulars, which stated that the cause of action therein relied upon arose out of the matters alleged in the first six counts of the declaration and none other. The declaration therefore consists practically of the second to the sixth counts, inclusive. It is sufficient to say that they stated fully a right of action in Eshbach to recover the fund here in question for the nse of Blaise. Byers filed the general issue and three special pleas; the first that the promises alleged in the declaration were not in writing; the second a set-off; the third an accounting with Eshbach and a small sum found due to Eshbach and a tender thereof. A demurrer by plaintiff to the special pleas was sustained. Defendant has not assigned for error the sustaining of said demurrer, so that the correctness of that ruling is not before us. We deem it proper, however, to say that the action of the court was unquestionably right. The promises averred in the second to the sixth counts were not such as are required to be in writing; the matters described in the plea of set-off could not, in the view we hereafter take, be lawfully set-off against the fund here sought to be recovered,» and the plea of accounting and tender is insufficient in many respects, one of which is that it fails to tender the costs to.the date of tender, which was long after the suit was begun. The first and second special pleas might have been good to the seventh count if it had not been restricted by the bill of particulars. The case was submitted, without a jury, practically upon the second to the sixth counts, inclusive, of the declaration and the plea of the general issue, and there was a finding in favor of plaintiff for $2,793, and some time later a judgment for $2,808.20 which included interest on the finding from the date thereof. Defendant below appeals.

Eshbach was a buyer of horses. When he purchased a lot of horses, he was accustomed to draw checks on the Farmers’ Bank, in favor of the sellers, for the purchase price, and then deposit in the bank a draff; upon the house in Chicago to whom he consigned the horses, and the bank was accustomed to pay these cheeks before the draft was honored. Shortly before July 16,1908, Eshbach’s account at the bank was overdrawn, but he had about enough horses in hand to make it good. The president of the bank informed Eshbach that he must arrange his account differently or the bank would no longer honor his checks. Eshbach then procured from M. Newgass & Son of Chicago to whom he was shipping horses, a letter of credit as follows:

“M. Newgass & Sons.
Commission salesmen of horses, Union Stock Yards, Monthly Auction Sales of High Grade Coach and Road Horses. Auction every Wednesday, Thursday and Friday.
Chicago, Ill. July 16, 1908.
A. M. Byers & Company, Aledo, Illinois,
Gentlemen:—Mr. Eshbach, whom you know has been shipping horses to us for a number of years and making drafts on us will hand you this letter in which we wish to state that we will honor all drafts made by Mr. Eshbach. What we would like to have you do is to arrange matters so you can pay for his horses and make your draft when he ships. We will at all times pay drafts on presentation. Our reason for asking this favor from yon is by having onr money ont in the country for a week or ten days, not only in one case of Mr. Eshbach but it should happen with all our consignors, we would have all our money in the country and not in the proper place here. You and ourselves both know Mr. Eshbach is responsible and reliable, and, if you can see fit to favor him in this way it will greatly oblige,
Yours very truly,
M. Newgass & Son.”-

Eshbach delivered this letter to the bank, and the latter resumed paying his checks in reliance on the letter of credit, but the bank not only paid checks for horses bought and shipped to Newgass, but also checks for his household expenses and other matters, not relating to horses. The bank kept but one general account with Eshbach and credited to it all drafts and charged to it all checks. When the bank received this letter of credit Eshbach’s general account was overdrawn. After-wards he had a balance to his credit and again his general account was overdrawn. On August 3, 1909, Eshbach drew a draft on Newgass to the order of the Bank for $5,250 and mailed it to the bank and was credited therewith. He bought a lot of horses in Iowa and issued checks therefor on this hank. Newgass refused to pay the draft and the bank refused to pay the checks. Thereafter there were interviews at the bank in Aledo and also in Chicago. At the last meeting in Chicago the cashier of the bank and Eshbach and Blaise were present. Blaise was threatening to attach the horses for which these checks had been drawn, said horses being then in the stables of Newgass in Chicago. Blaise was one of the sellers of the horses and he represented all the sellers and all the holders of these checks. The very clear preponderance of the evidence is that the cashier was anxious that Blaise should not attach these horses, for such action would greatly complicate the efforts of the bank to collect the draft from Newgass and that it was thereupon agreed that in consideration that Blaise would not attach the horses, the bank would pay these checks out of what it realized from Newgass on the draft. The cashier returned to his bank. As before stated, these checks had previously been presented to the bank and payment refused. After this arrangement made in Chicago, Blaise notified the bank at Sigourney, Iowa, which had these checks in its possession, and the Iowa bank again sent these checks to the Farmers’ Bank. The latter held them without action for some two months. Meantime the Farmers’ Bank sued Newgass on the dishonored draft and it was settled and paid and after deducting attorney’s fees and expenses in Chicago, $4,716.01 was remitted to the Farmers’ Bank as the proceeds of said draft. It seems that the Farmers’ Bank had also advanced $150 attorney’s fees, which it also was entitled to deduct, leaving the net avails of the draft $4,566.01. An officer of the Farmer’s Bank testified that if this draft had been paid when it was drawn, the Farmers ’ Bank would have paid these checks, but when this money was finally received it determined to apply that money upon Eshbach’s overdraft upon them, and did so, and returned the checks to the Iowa Bank. Blaise not only held the checks by assignment, but also had a contract with the various payees of the checks, by which they all shared in the expenses and proceeds of a suit to recover the fund. The $2,973 which the court found for plaintiff, was the exact amount of all the checks given to pay for that shipment of horses to Newgass.

"We are of opinion that the true construction of the letter of credit is that it was intended to give Eshbach credit for the horses which he should buy and ship to Newgass, and that it was not intended and could not reasonably be understood by the Farmers’ Bank to be intended to give Eshbach credit for groceries or household supplies or horses bought and shipped to other firms, or for any matters outside of the purchase of horses shipped to Newgass. We are satisfied that when the officers of the Farmers’ Bank received this draft for $5,250 they knew that it was intended as a special deposit to pay for horses shipped to Newgass. The case then is that Eshbach deposited a special fund with the Farmers’ Bank to pay for certain horses shipped to Newgass and drew checks against that deposit to pay for those horses; and that afterwards the cashier of the Farmers’ Bank also specially agreed that in consideration that Blaise, representing the holders of all the checks, would not attach the horses in the possession of Newgass, he would apply the proceeds of the draft, when collected, to the payment of these particular checks, and that this promise was made to both Blaise and Eshbach, and that in reliance thereon Blaise did not attach the horses. Thereafter the Farmers’ Bank diverted the proceeds of the draft to another indebtedness of Eshbach to the bank, and refused to pay the checks pursuant to promise. As the fund was deposited originally for the special purpose of paying for horses shipped to Newgass, and the bank had notice thereof, and after-wards the bank specially agreed that it would apply this fund when collected, to the payment of these particular checks, we are of opinion that Eshbach had a right to recover from the bank for the use of the holders of the checks the amount of said checks. This judgment only compels the bank to apply the money as it agreed to do. Not only is there no plea of set-off and no question raised thereon by the assignment of errors, but it is obvious that, as against the special fund, there could be no such set-off.

The motion to tax the costs of the additional abstract against appellant will be granted and the judgment will be affirmed.

Affirmed.


author: Me. Justice Dibell

text:
    Nancy M. Caughey, Appellee, v. Peoria Railway Company, Appellant.
    Gen. No. 5503.
    1. Verdicts—wliat does not determine preponderance of evidence* The number of witnesses alone does not determine the question as to where the preponderance of the evidence lies.
    2. Instructions—when upon question of damages in personal injury case not erroneous. An instruction is not erroneous which tells the jury that they may allow the plaintiff such sums as in the judgment of the jury under the evidence and the instructions would be a fair compensation for injuries, if any, so far as such damages and injuries are claimed and alleged in the declaration.
    Action in case for personal injuries. Appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    Pinkney & MoBobeets, for appellant.
    Joseph A. Weil, for appellee.
   Me. Justice Dibell

delivered the opinion of the court.

Appellee was injured in alighting from a street car operated by appellant in the city of Peoria and brought this suit to recover damages therefor, charging said injuries to the negligence of appellant, and had a verdict and a judgment for $1500 from which defendant below appeals. Appellant does not argue here that the damages are excessive. It will therefore be unnecessary to discuss the character and extent of appellee’s injuries. It is contended that there is a variance between the declaration and the proofs and that the preponderance of the evidence does not support the verdiet and that the court erred in rulings upon instructions.

The first count of the declaration charged that appellee was riding westerly upon appellant’s car on Bradley avenue as a passenger and wished to leave the car at the intersection of that avenue with Culter street and signaled the conductor to stop at said intersection, and that pursuant to her signal, the car was stopped at that intersection and that, while, with due care for her own safety, she was attempting to step off from the car after it had come to a full stop at said intersection, the servants of appellant in charge of the car caused it to be suddenly moved forward and thereby she was thrown from the car to the ground and injured. The second count was similar, except that it further charged that appellant failed to afford appellee reasonable time and opportunity to. alight from the car and failed to cause the car to remain stationary for a reasonable time till she could safely alight, but before a reasonable time had elapsed for her to alight, and while she was in the act of alighting appellant, without warning to appellee, caused said car to he suddenly started and by means thereof she was thrown to the ground and injured. The third count was similar, except that it charged that appellant so carelessly and negligently operated the car while • appellee was alighting therefrom after the same had come to a full stop, that through the carelessness and negligence of appellant in that behalf appellee was thrown from the car to the ground and injured.

Appellee' was riding west on the north side of an open car having a running board on that side from which passengers could alight. She signaled for the car to stop and it did stop. Appellee and two witnesses located upon the porch of a house nearby testified that she got down upon the running hoard after the car had stopped and took hold of the handle with her left hand, which would be the handle west of her, and stepped upon the running board with her left foot and as she was stepping with her right foot to the ground the car gave a sudden jerk and she was thrown. One of the witnesses on the porch thought the jerk was caused by the release of the brake, and appellee attributed it to the starting of the car. The conductor, the motorman, a passenger on the car and a person just getting upon the car. at that street intersection, testified that the accident happened before the car stopped; that while the car was still in motion, appellee got upon the foot board, took hold of the handle back of her with her right hand and stepped off with her left foot and was thrown to the ground some ten feet before the car stopped. If the testimony introduced by appellee is true, she has a cause of action. If the testimony introduced by appellant is true, then the facts are substantially the same as those recited by us in Drane v. Sterling, Dixon & Eastern Elec. Ry. Co., 154 Ill. App. 70, and appellee was guilty of such contributory negligence as would prevent a recovery by her. Appellant assumes in argument that because it has four witnesses and appellee but three, the preponderance of the evidence is with appellant. We cannot assent to this conclusion. The jury have decided this controverted question of fact in favor of appellee. , The trial judge has refused a new trial and has thereby approved the verdict. The preponderance of the evidence does not depend alone upon the number of witnesses. The jury and the trial judge saw the witnesses and may have seen that in their demeanor which entitled appellee’s witnesses to more credit than those of appellant. It may be that if we were acting as jurors, we should decide the issues for appellant, but we find nothing in the record which would justify us in setting aside the conclusion of the jury, the tribunal appointed by law to try controverted questions of fact, and the conclusion of the trial judge.

It is contended that the court erred in giving the first instruction requested by plaintiff. An instruction in practically tbe same language was approved in Chicago City Ry. Co. v. Bundy, 210 Ill. 39. Instruction No. 4, given at the request of plaintiff, relates to the measure of damages. It is contended that it is erroneous because it does not submit to the jury the question whether appellant was negligent, as charged in the declaration. It begins by saying “If you find for the plaintiff, you will be required to find the amount of her damages.” By the very terms of the instruction it does not become applicable until they have found fox plaintiff and thereby have found that defendant was negligent. It is urged that the conclusion of the instruction is erroneous where it tells the jury that they may allow appellee such sums as in the judgment- of the jury, under the evidence and the instructions, would be a fair compensation for her injuries, if any, so far as such damages and injuries are claimed and alleged in the declaration. This language is not subject to the criticism made upon it.. It does not mean that they are to allow appellee for whatever damages and injuries are alleged in the declaration, but for the damages and injuries which are proven so far as the damages and injuries proven are alleged in the declaration. This instruction has been approved in Chicago & Milwaukee Elec. Ry. Co. v. Ullrich, 213 Ill. 170, and Frank Parmelee Co. v. Wheelock, 224 Ill. 194. From the foregoing statement of the declaration and the proofs, it is obvious that there is no variance.

Finding no reversible error in the record, the judgment is therefore affirmed.

A firmed.


text:
    Frank H. Bertelsen, Appellee, v. Rock Island Plow Company, Appellant.
    Gen. No. 5506.
    I. Master and servant—how rule may be abrogated. Habitual violation of a rule by employes of a master will abrogate sueb rule if the master has, or is chargeable with, knowledge of such violation.
    • 2. Master and servant—change in means of egress. A servant has. the right to presume that changes in the means of egress which are calculated to result in his injury will not be made without notice to him.
    3. Master and servant—who not fellow-servants. One engaged in assembling parts of machinery and one handling a truck in a different part of the factory, are not fellow-servants.
    Action in ease for personal injuries. Appeal from the Circuit Court of Rock Island county; the Hon. Prank D. Ramsay, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    Rehearing denied November 23, 1911.
    Searle & Marshall, for appellant.
    J. T. & S. R. Kenworthy, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

The Rock Island Plow Company, hereinafter called the company, has a factory where it manufactures various agricultural implements. There are various rooms on different floors, in which different parts of the work are performed. It had a room called the “sulky” room. Prank H. Bertelsen worked in the sulky room, assemhling parts of machinery. At the time of the injury which is the subject of this suit, he had worked there some eight months. In going to and from his work, he was accustomed to pass through a large room known as the ‘ ‘ elevator ’ ’ room. It had a small door on the east side at the south side of the room and a larger door about the center of the room and a door directly west of that on the west side of the room, opening into a larger working room, known as the “fitting room.” There was a passageway or gangway between these two last mentioned doors, and directly south of it on the west side of the room was an elevator shaft. Except for the east doors this room had little or no outside light, but was lighted by incandescent electric lights. The plant was accustomed to shut down from noon to one P. M. After the whistle blew at noon, the stationary engineer shut off the engine which operated the dynamo and the lights gradually faded down and went out. At or shortly after 12:45 P. M. the engine was started again and the lights gradually came on. During the intervening time the elevator room was substantially dark. "When Bertelsen left the room at noon of October 12, 1907, the lights were on. When he returned to his work after dinner, somewhere between five and fifteen minutes before one o’clock, the place was dark. As he went along the passageway he fell over an iron truck or cart standing in the passageway and was injured. He brought this suit against the company to recover damages for said injuries, and filed an amended declaration containing three counts. The court instructed against the second count. The first count charged that the company maintained a passageway for its employes to use as an entrance and exit to said factory, which was dark in the day time and usually lighted by defendant by artificial lights; that defendant knew of its use by plaintiff and other employes as an entrance and exit from said factory, or by reasonable care could have known of it; that defendant failed to keep said passageway lighted as was its duty and that, while plaintiff was in the exercise of due care for his safety and using said passageway in the line of his duty, by reason of the negligence of defendant in failing to light the passageway, plaintiff fell over a truck left in said passageway and was injured. The third count was similar, hut it charged that said passageway had been habitually used by the employes of defendant in entering and departing from the factory, with full knowledge by defendant thereof and without objections by defendant thereto; that defendant negligently failed to keep said passageway lighted and negligently allowed a truck to remain in said passageway, while said passageway was dark, as defendant knew or should have known; that plaintiff did not know that said passageway was obstructed by said truck and, by reason of defendant’s negligence, fell over said truck and was injured. Defendant filed a plea of not guilty; there was a jury trial and a verdict for plaintiff for $1,000. A motion by defendant for a new trial was denied, plaintiff had judgment and defendant appeals. It is assigned for error that the damages awarded are excessive, but the assignment is not argued and is therefore waived, and hence we do not need to describe plaintiff’s injuries.

Appellant furnished several passageways for the entrance and exit of its employes, and the testimony it introduced tended to show that the company did not consider the way through the elevator room as a main entrance way. It introduced in evidence a rule in a book which required its employes to use the main entrances and forbid their leaving and entering by any other way. There was, however, abundant and practically uncontradicted proof not only that appellee had always used this as his place of entrance and exit during the eight months he had worked for the company, but also that many other employes regularly, and still others frequently, entered and left by this way. This room was but a short distance from the office of the company. The company is chargeable with knowledge that its employes, many of them habitually, used this route. "We held in Coburn v. M. E. M. & W. Ry. Co., 149 Ill. App. 132, and Kenny v. Marquette Cement Mfg. Co., 149 Ill. App. 173, that abrogation of a rule may be shown by proof of its habitual violation with the knowledge of the party establishing the rule; that such knowledge may be constructive, and, if the violation of the rule is continued so long that the maker might reasonably know it, his knowledge will be presumed and the rule will be treated as inoperative. The same rule was announced in affirming the Kenny case in Kenny v. Marquette Cement Mfg. Co., 243 Ill. 396. It is therefore entirely clear from the proofs that, not only did appellant fail to enforce this rule, so that it is to be treated here as void, but also that this became one of the passageways by which employes might enter ( and leave this factory, and it became the duty of appellant to exercise reasonable care to provide a reasonably safe passageway through this room for its employes, and the employes, so using it, had a right to presume that the master had performed that duty, and did not assume the risk that this passageway was unsafe. This conclusion makes it unncessary to discuss several of appellant’s contentions.

On the north side of the elevator room returned goods were unloaded and they were stored in the north part of that room. Appellant’s proof tended to show that these goods were scattered all about this room in disorder and that the passageway was often obstructed thereby. Appellee’s proof tended to show that the passageway was never or seldom so obstructed. Appellant contends that when appellee came there and found the room dark he was bound to search for and avoid obstructions and also that there is no proof that appellant knew that this truck was there' long enough before the injury to have it removed. When appellee went through after twelve o’clock on his way to his dinner, the room was still lighted and there was no obstruction in the passageway. The plant had shut down and was to remain shut down till one o’clock. He therefore had a right to suppose that no change in the passageway would be made till business was resumed. There was no proof that any stranger put the truck in the passageway. We must assume that it was placed there by some servant of appellant or, in other words, by appellant itself. The person handling the truck would not be a fellow-servant of appellee. Therefore when appellant by its servant placed the truck there appellant had notice that it was placed there. The evidence tended to show that appellee was proceeding carefully through the dark passageway. These questions of fact have been decided by the jury in favor of appellee and the trial judge has approved that decision and there is nothing in the evidence which would warrant our disturbing it.

What we have said above disposes of some of the questions raised by appellant upon the instructions. The court refused Nos. 12, 13 and 14 requested by appellant. The 12th instruction, among other things made it essential to a recovery under the third count that appellee should prove that he did not know that it was dark in that room as he passed along. The third count did not charge that appellee was ignorant that the passageway was dark, and because of that element the instruction, if given, would have compelled a verdict for appellant, because it is obvious that appellee knew it was dark when he got into the room. The thirteenth instruction repeated the same proposition with reference to a recovery under the first county while the first count contained no averment that the plaintiff did not know that the room was dark. The 14th instruction told the jury that there was no evidence that appellant knew of the obstruction of the elevator by the truck and, unless the jury believed it had been there long enough before the injury so that in the exercise of reasonable care appellant could have discovered and removed it, the jury must find for appellant under the third count. On the contrary, as already stated, the evidence warranted the conclusion that appellant put the truck there by one of its servants. These instructions were properly refused.

We find no reversible error in the record and the judgment is therefore affirmed.

Affirmed.


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    William H. Riggs, Appellee, v. Ernest C. Ladd et al., Appellants.
    Gen. No. 5507.
    1. Interest—effect of oral contract to pay. A party cannot bind himself by oral contract to pay more than five per cent interest.
    2. Instructions—when upon question of interest rates erroneous. It is error' for the court to leave to the jury the determination of the rate of interest which is to be allowed.
    Assumpsit. Appeal from the City Court of Kewanee; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in this court at the April term, 1911.
    Reversed and remanded.
    Opinion filed October 13, 1911.
    Sturtz & Ewan and Wilson & Cummings, for appellants.
    N. F. Anderson, James H. Andrews and Thomas J. Welch, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

William EL Eiggs sued Ernest C: Ladd and Grace L. Ladd in assumpsit and filed the common counts. Defendants filed the general issue and a verified plea denying joint liability. At tbe trial plaintiff bad a verdict for $549.58, a motion by defendants for a new-trial was denied and plaintiff bad judgment, from wbicb defendants below appeal.

Appellee testified that on August 10, 1908, be loaned to Ernest C. Ladd and Grace L. Ladd, wbo are brother and sister, tbe sum of $500 for one year witb interest at 7 per cent. Thirty-five dollars was paid tbereon a year later and be sues to recover tbe remainder of tbe debt. We are not- satisfied witb tbe verdict and tbe judgment. There was fully as much oral testimony that this was a loan by appellee to Grace L. Ladd only as there was that it was a loan to both appellants. Tbe papers then executed all sustained appellants that it was a loan to Grace L. Ladd only. Appellee made bis check payable to Grace L. Ladd only. Appellee took from Grace L. Ladd her individual note of that date, payable to bis order one year after date for $500 witb interest tbereon -at tbe rate of 7 per cent per annum and a mortgage by her securing said note on forty acres of land in Saline county, Illinois, and be bad presented to him at that time an abstract of tbe title to said forty acres. It is now claimed in behalf of appellee that this note and mortgage were given as collateral security for the loan of $500 to both appellants. Tbe word “collateral” does not appear in appellee’s testimony of what was then said and done. If be loaned this money to Ernest and Grace, it is strange and unusual that be did not take a note from both. He knew that be was receiving tbe written promise of Grace and that be bad no writing to bind Ernest. If be was making a loan to Grace only, then what was done was according to tbe common course of business. Appellee testified that appellants told him that Grace bad refused $2500 for tbe real estate covered by tbe mortgage, and that afterwards be received a letter'from tbe recorder of Saline county wbicb said that tbe land was worth only $75 or $80 and that it was assessed to different parties. The fact that appellee had received such a letter did not prove the contents of the letter to be true; but, if it were true that appellee had been deceived as to the value of the security, and even if the appellants were liable to him in an action of deceit, that would not authorize a recovery in his favor against both appellants in this action of assumpsit. It seems to us more probable that appellee in fact made the loan apon these papers and that afterwards, when he was told that the security was practically worthless, he felt that he had been too careless in loaning the money and then conceived the idea that his loan had been to both appellants. In this condition of the record as to any liability on the part of Ernest in this action, we find that the court in the first instruction given for appellee treated the alleged oral agreement to pay interest at 1% per annum as valid, and then directed the jury to allow such interest “as you believe the plaintiff to be entitled to.” It was not proper for the court to leave the jury to fix such a rate of interest as they thought appellee was entitled to; and the instruction was erroneous in its implication that appellee could recover 7% upon an oral contract for interest. Parties are only allowed to bind themselves to pay 7% by a written contract, and in the absence of a written contract, are limited to 5%. Upon a computation we find that the verdict and judgment are considerably more than could be due from both appellants on an oral loan to them, under the law. Under ordinary circumstances we should permit a remittitur, but in view of the fact that there is apparently a clear preponderance of the evidence that the loan was to Grace L. Ladd only, we conclude the judgment should be reversed.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


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    M. F. Baringer, Appellee, v. Imperial Cotton Milling Company, Appellant.
    Gen. No. 5513.
    Measure op damages—in action for failure to deliver merchandise. “If delivery is postponed by agreement between the parties, the measure of damages is the difference between the contract price and the market price at the time the article is deliverable by the subsquent agreement, and where the time of delivery is postponed indefinitely, the measure of damages is the difference between the contract price and the market value at a reasonable time after demanding performance.” (Summers v. Hibbard, Spencer, Bartlett & Co., 153 Ill. 102.)
    Assumpsit. Appeal from the County Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    Isaac J. Levinson, for appellant.
    Ira J. Covet,, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Appellant is a dealer in cotton seed meal and had its principal office in Peoria and a branch office in Chicago. On September 8, 1909, appellee made two contracts with appellant through its Chicago office for the delivery of twenty cars or 400 tons of cotton seed meal to appellee, to he shipped to such points tributary to Philadelphia as appellee might designate. The shipments were to be in October. Appellant was unable to carry out these contracts and delivered but two cars of meal or 40 tons in October. Various requests and promises passed between the parties, and appellant delivered nine cars during November, making eleven cars delivered, and leaving nine cars or 180 tons not delivered. Correspondence followed and appellee bought two cars on December 15 and two cars on December 21, and on December 24 refused to wait any longer, and appellee bought the remaining cars on January 7, 1910. The market was continually rising. Appellee brought this suit to recover the damages he sustained by reason of the failure of appellant to comply with its contract. Appellant concedes its liability, but insists that the damages shall be measured by the market- price of the commodity on November 1. The declaration has not been abstracted by appellant nor by appellee, but it appears that it consists of the common counts and five special counts; that the special counts set up the contract and the failure to deliver, and the fourth and fifth special counts allege that appellee and appellant by mutual agreement extended the time for the delivery of the remaining 180 tons so that delivery thereof might be made within a reasonable time after such extension, and that defendant failed to make delivery within such reasonable time. The court below held that there had been such extension by mutual agreement, and allowed for the two cars bought in on December 15 at the then market price, $170, and for the two cars bought in on December 31, at the then market price, $176; and also held that the extension having been terminated on December 24, appellee should have bought in the remaining five cars on December- 27, and allowed therefor at the then ' market price, $450, and allowed for a matter of freight, not here disputed, $20.31, a total of $816.31, for which appellee had judgment, and defendant below appeals therefrom.

The rule governing this case is thus stated in Summers vs. Hibbard, Spencer, Bartlett & Co., 153 Ill. 102.

“In the case at bar, appellees made threats to buy in at seller’s expense, but excuses rendered and promises made by -appellants of frequent and large shipments deterred them from doing so. If delivery is postponed by agreement between tbe parties, tbe measure of damages is the difference between the contract price and tbe market price at the time tbe article is deliverable by the subsequent agreement, and where the time of delivery is postponed indefinitely, the measure of damages is the difference between the contract price and the market value at a reasonable time after demanding performance.”

This has been followed in N. W. Iron & Metal Co. v. Hirsch, 94 Ill. App. 579; and Houston v. Wendnagel, 135 Ill. App. 95. To the same effect is Roberts v. Benjamin, 124 U. S. 64.

Appellant did not treat the contract as at an end on November 1, but made a delivery as late as November 23. On December 4, appellee wrote appellant that the situation was becoming impossible, and then said:

“The matter must be closed up next week. If you are going to close it by giving us bills of lading, we shall be very glad to have it done that way, and forget the fact that you are over a month in default. But if we cannot close it that way, the only alternative is to buy in the unshipped portion for your account, and have you pay the difference.”

On December 6 appellant replied with many excuses why the cars had not been shipped, and saying that the writer was doing everything possible towards having appellee’s purchases cleared up that week, and then said:

“The writer will give his personal attention to the balance of your shipments and do everything possible to get the cars to you without further delay. ’ ’

To that letter appellee replied on December 8th as follows:

“Replying to your favor of the 6th. We are submitting the matter as you put it, to our customers, and if they do not force us to buy in or take this measure themselves, we will give you the time you request. It must be fully understood, however, that while extending thé time at your request, we reserve the right to buy in all or any part of this unshipped meal for your account if forced to do so action of our customers.”

On December 14 appellee telegraphed appellant that he must have positive evidence of the shipment of certain cars or he would buy in on the following day; and on December 15 appellee did buy in two carloads and so wired appellant. On December 16 appellant wired appellee, acknowledging receipt of that telegram and saying:

“We are getting out a lot of cars now, and hope to have your customers satisfied within a few days.”

On December 18 appellee wrote appellant and referred to said promises to have appellee’s customers satisfied within a few days, and added:

“If you give us invoices for the remaining cars, for which you have full directions, within a few days, we shall be more than glad. We dislike nothing more than to buy in for account of a shipper, who, we believe, is doing his best to fill his contracts, but we cannot longer hold oft our people, and during the next week will buy in every car on which we have no positive information of shipment.”

On December 20 appellee wired appellant that he must have delivery of a certain car, and that unless he was furnished with the car number he would buy on appellant’s account the next morning. On the same, day appellant answered by wire, “Answering telegram will make every effort to wire you car number to-day or to-morrow early.” On December 22 appellee wired appellant that he had bought two cars on appellant’s account, and appellant wired appellee as follows:

“Wish you would make every effort possible to hold your customers off for a few days, as we are doing all we can to get the cars to you. Anything you can do will be greatly appreciated.”

On December 24th appellee wrote appellant, practically indicating an inability to wait any longer on account of the demands of appellee’s customers, and saying that he must have the shipments without further delay. There was some other letters between the parties during the period covered by the correspondence above stated. We cannot doubt that this correspondence shows that the time of delivery was postponed indefinitely by the agreement of the parties. Indeed, appellant’s letter of December 22 is an express request for delay. We are of opinion that the trial court decided this question correctly. The price rose between December 27, 1909, and January 7, 1910, and appellant therefore was not injured but benefited by the action of the court in charging the last five cars at the market price on December 27.

The contract was for choice forty-one per cent cotton seed meal. Appellee bought in the Owl brand of cotton seed meal. Appellant contends that this was more valuable than the meal contracted for and commanded a higher price on the market. The preponderance of the evidence is that it was substantially the same article and brought the same market price. Appellant seems to claim that its agent in charge of its Chicago office had no authority to conduct the correspondence which resulted in these extensions, but we are of opinion that the record does not sustain that position.

The judgment is affirmed.

Affirmed.


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    Axel Lundholm, Appellant, v. Mystic Workers of the World, Appellee.
    Gen. No. 5518.
    1. Evidence—competency of admissions of assured. In an action upon a benefit certificate issued by a mutual benefit society, statements made by an assured are competent evidence against tbe beneficiary.
    2. Evidence—comptency of coroner’s verdict. A coroner’s verdict is competent in an action upon a benefit certificate where the defense' is that death resulted from a cause which precluded liability by the society:
    3. Evidence—when proofs of death competent against beneficiary. Statements made by a physician in proofs of death submitted to a society are competent against a beneficiary if such beneficiary has in such proofs of death adopted such statements.
    4. Appeals and errors—when admission of erroneous evidence will not reverse. If a case is tried without a jury the admission of incompetent evidence will not reverse if there is sufficient competent evidence to sustain the judgment.
    5. Fraternal benefit societies—what defense to action upon certificate. If a contract of insurance precludes recovery in the event of death resulting from a-violation of the law, there is no liability where death results from the assured having a miscarriage produced where such miscarriage was not essential to the preservation of the life of the assured.
    Assumpsit. Appeal from the Circuit Court of Rock Island county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    Gr. A. Shallberg and J. T. & S. R. Kenworthy, for appellant.
    B. F. Lichtenbergeb and Walker, Ingram & Sweeney, for appellee.
   Mr. Justice Dibell

delivered the opinion of' the court.

On April 4, 1904, Lydia Holstein obtained a benefit certificate in the snm of $1,000 in the fraternal beneficiary society known as tbe Mystic Workers of tbe World, payable in the case of her death to her father and mother. The laws of the order permitted the insured to change the beneficiary. She afterwards married, and surrendered said certificate, and on May 23, 1905, obtained another certificate of like tenor, except that it was payable to her husband, Axel Lundholm. She died on April 6, 1908. Her husband made proofs of death and, payment being refused, brought this suit against the society on the certificate and filed a declaration in proper form. The society filed the general issue and three special pleas. A demurrer was sustained to the three special pleas and the society filed four amended special pleas, hereinafter called the pleas. The first and third pleas set up an answer by the insured in her application wherein she waived all rights or benefits based on that application if she died by suicide, while not insane, or in violation of the laws of the country, and the first plea averred that the insured, being pregnant, unlawfully administered to herself tansy pills to produce miscarriage, not necessary for the preservation of her life, and knowing that said pills would produce a miscarriage, in violation of the laws of Illinois, and as a result thereof she miscarried and died. The third plea was the same, except that it averred that the miscarriage was produced by the use of an instrument or instruments, the names of which were unknown to defendant. The second plea set up a provision in the constitution and by-laws of the order, to the effect that no benefit should be paid to the beneficiary of any one whose death was caused directly or indirectly, in whole or in part, by immoral conduct or as the result of his own wilful act or attempted violation of any of the laws of the country. It then averred the cause of death as in the first plea. The fourth plea combined all the defenses' alleged in the first, second and third pleas, except that it charged that the miscarriage was produced by an instrument or instruments. The first replication was to all the pleas and denied the use of tansy pills with intent to produce a miscarriage. The second replication was to the first and second pleas and denied that the death was the result of taking' tansy pills to produce a miscarriage. The third replication was to the third and fourth pleas and denied that deceased used an instrument or instruments with intent to produce a miscarriage. The fourth replication was to the third and fourth pleas and denied that the insured died as the result of using any instrument or instruments with intent to produce a miscarriage. The fifth replication was to all the pleas and alleged that insured was not pregnant and did not die from an attempt to produce a miscarriage. At the trial, at the close of all the proofs, the court instructed the jury to find the issues for the society. Such verdict was returned, a motion by plaintiff for a new trial was denied, and the society had a judgment, ■ from which plaintiff below appeals.

Appellant contends that the court erred in admitting in evidence statements made by the assured concerning her pregnancy and the miscarriage. ' These statements were proved by physicians, who attended her after the miscarriage had been produced, and also by her husband. Statements made by an assured are competent evidence against the beneficiary. Towne v. Towne, 191 Ill. 478; Treat v. Merchants’ Life Association, 198 Ill. 431; Court of Honor v. Dinger, 123 Ill. App. 406 and 221 Ill. 176; Brown v. Mystic Workers, 151 Ill. App. 517. In Niblack on Benefit Societies, 2nd Ed., sec. 325, while it is conceded that such statements are not admissible in ordinary life insurance, where a vested interest passes to the beneficiary and the assured ceases to be a party in interest, the rule as to mutual benefit societies like the one here involved. where the assured may change the beneficiary, is thus stated:

“But in contracts of mutual benefit insurance where the contract is between the society and the member, where the beneficiary has only an expectant interest, and the member insured has full power and dominion over the contract until the moment of his death, it has been held that the reason for the rule in ordinary insurance does not exist, and that there is no escape from the conclusion that, since the beneficiary has no vested interest in the contract, the member must have dominion over it, and that his declarations are admissible against the beneficiary just as they would he against his legal representatives.”

Appellee called appellant as its witness. During his direct examination he repeatedly stated what his wife had said to him. Most of these answers were not responsive to the question,— that is, the question did not ask him to state what his wife said, but appellant volunteered his wife’s statements. If the case depended upon this testimony by the husband, we should have grave doubts whether portions of these answers ought not to have been excluded, hut in the main they only confirm what was testified to by the physicians, which evidence was clearly competent. It is to he remembered that this case was not decided by the jury, and the admission of incompetent testimony or the failure to exclude incompetent testimony did not therefore aid in procuring this verdict. If the competent testimony authorized the court to direct a verdict for appellee, that action should not he reversed merely because the court may also have admitted some evidence tending to support the verdict which was incompetent.

It is contended that the court erred in admitting in evidence the verdict of the coroner’s jury. This action is supported by United States Life Ins. Co. v. Vocke, 129 Ill. 557; Pyle v. Pyle, 158 Ill. 289; and Grand Lodge v. Wieting, 168 Ill. 408.

It is contended that the court erred in admitting in evidence on behalf of appellee the proofs of death and especially the affidavit of Dr. Sloan, a part thereof. These proofs of death were made by appellant. The affidavit of Dr. Sloan was named thereon as ‘ ‘ Blank F ’ ’ and in the part of the proofs of death signed by appellant, he made the following statement.:

“I further state that Blanks “A”, “B”, “C”, “D”, “ E ”, “ F ” and “ H ”, of the death proofs herewith filed with this claim, have been executed at my special instance and request and the statements therein contain-, ed are adopted by me and agreed to as the basis of this claim.” Under these circumstances it was not error to admit in evidence said proofs of death or said affidavit of Dr. Sloan, a part thereof as “Blank F.”

We do not deem it necessary to state at length the various statements and facts shown by the proof hereinabove held to be competent. When all the proof is considered, it was clearly established that Mrs. Lundholm was with child, that she desired to be relieved thereof, that she went to a woman in Bock Island who called herself a doctor and the latter performed upon her a criminal operation with instruments, as the result of which Mrs. Lundholm died. Appellant contends that it . might have been an accident. Medical testimony showed that an accidental miscarriage has a different effect upon the mother from a miscarriage produced by force or by medicine, and that the symptoms here plainly indicated that this was not an accidental miscarriage. It is contended that this operation might have been necessary to save the life of Mrs. Lundholm. It was proved that she was in excellent health until this miscarriage was produced and this by the testimony of her own physician, who saw her often upon the street and noted her good health. We think there is enough in the proof to establish that this operation was not necessary to preserve her life. It is contended by appellant that it is not a violation of the law of this State for a woman to procure an abortion to be performed upon herself, even though not done to preserve the mother’s life. We are of opinion that Section 3 of Division 1 of the Criminal Code is a sufficient answer to this contention. See also Hatch v. Mutual Life Ins. Co., 120 Mass. 550.

We are of opinion that if, upon this evidence, the jury had found a verdict for appellant, it could not have been sustained, and that the court did not err in directing a verdict for appellee.

The judgment is therefore affirmed.

Affirmed,


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    Ervin Simmons, Appellee, v. William Clement, Appellant.
    Gen. No. 5529.

      Instructions—when upon impeachment of witnesses erroneous. An instruction which tells the jury that they may disregard the entire testimony of any witness who "has been successfully impeached” is insufficient if it does not tell the jury what constitutes successful impeachment.
    ■ Assumpsit. . Appeal from the Circuit Court of Stephenson county; the Hon. Richard S. Farrand, Judge, presiding. Heard in this court at the April term, 1911.
    Reversed and remanded.
    Opinion filed October 13, 1911.
    Witte & Mames and Robert B. Mitchell, for appellant.
    Reuben R. Tiffany, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Appellant lived at Freeport and was an agent for the sale of Canadian lands for the Canadian Pacific Irrigation and Colonization Company, which was apparently subordinate to the Canadian Pacific Railway, Appellee also lived at Freeport. Some arrangement was made between appellee and appellant by which appellee was to act for appellant in the sale of Canadian lands. Appellee sued appellant to recover commissions of $1 per acre for 1280 acres of land which it was alleged that Louis A. Volkers purchased of appellant through appellee. The first count of the declaration charged that it was agreed between the parties that if appellee would produce a party who would buy Canadian lands through appellant, the latter would pay appellee $1 per acre for every acre the party so produced would buy through appellant, and that appellee did produce Volkers, who did buy 1280 acres of appellant. The second count charged that appellant promised to pay appellee $1 per acre for all lands sold to a person whom appellee might bring or send to appellant and to whom appellant should make sales of Canadian lands, and that appellee took Volkers to appellant and introduced him as a prospective purchaser and that Volkers did through appellant buy 1280 acres of Canadian land. To these counts were added the common counts. Appellant paid into court $200 and the costs to that date, and filed pleas of the general issue and of tender. There was a jury trial and a verdict for appellee in thé sum of $1080 besides the $200 tendered, and a judgment upon the verdict, from which defendant below appeals. Upon a motion by appellant for a new trial numerous affidavits were filed, tending to show corrupt practices exercised by some one to procure testimony for appellee.

Appellee’s version of the contract entitled him to a commission of $1 per acre for a certain kind of Canadian land sold by appellant to any person whom appellee had produced and introduced to appellant. Appellant introduced testimony tending to show that the contract was that appellee should have $1 per acre for a certain kind of Canadian land sold to persons whom appellee took to Canada and to whom appellee sold the land. Appellee did not take Volkers to Canada, nor sell him the land. Appellant’s proof tended to show that he had been trying to interest Volkers in Canadian land long before appellee brought him to appellant. After appellant had made a bargain with Volkers a check of the latter was refused payment and the original deal fell through, and appellant thereafter made an arrangement with Volkers by which he, appellant, loaned to Volkers or found for him the money with which to make the purchase. Appellant introduced testimony tending to show that after the original deal with Volkers fell through, it was arranged between appellant and appellee that appellee should receive $200 in full for all the services he had rendered in that matter. It was under this proof that appellant made his tender of $200 and costs, and he apparently had a preponderance of the evidence in his favor on that subject.

In this state of the case, the court gave for apf ellee the fifth instruction, to the effect that if the jury found that appellant engaged appellee to find purchasers for Canadian land and agreed to pay appellee a commission of $1 per acre for land so purchased by such parties and that thereafter appellee introduced Volkers to appellant and Volkers was ready, willing and able to buy said land and did buy 1280 acres of land at the terms proposed by appellant, then in the absence of any agreement by appellee to take a lesser commission, they should find the issues for appellee and assess his damages at $1080. This instruction was erroneous, because it directed the jury to find a verdict for appellee for $1080 even if the jury also believed from the evidence that it was further agreed between appellant and appellee that he was to take proposed purchasers to Canada and sell them the lands himself, as testified by appellant. The court also gave the sixth instruction requested by appellee, which was in substantially the same terms, except that it omitted reference to the absence of any agreement by appellee to take the lesser commission, and it told the jury that appellee had earned his commissions if Volkers had entered into a written contract for said lands on the terms proposed by appellant, and that appellee’s right to commissions was not affected by any modifications in the terms of payment or other conditions of the sale different from the terms first given. This instruction was erroneous because it authorized a recovery if the jury found that appellee introduced Volkers to appellant, even though the jury might believe from the evidence that the agreement was that to earn these commissions appellee should take proposed purchasers to Canada and sell them the lands, and it was also erroneous because it ignored the proof tending to show that he had agreed to accept $200 in payment after the first sale to Volkers had fallen through, and it would be likely to be understood by the jury to mean that the right of appellee to recofer $1280 would not be affected by any subsequent modification by which he agreed to take $200. Appellee’s third instruction, that the jury may disregard the entire testimony of any witness who “has been successfully impeached” was in that respect insufficient, for it did not tell the jury what constituted successful impeachment. Chicago City Ry. Co. v. Ryan, 225 Ill. 287; Metzger v. Manlove, 241 Ill. 113. The court gave an instruction at the request of appellant which furnished a partial definition of impeachment, but we do not think it sufficiently informed the jury what constituted a successful impeachment; and the third instruction was therefore calculated to mislead the jury and was erroneous. "We are not satisfied with the conclusion of the jury upon the evidence, nor with the circumstances affecting the evidence introduced by appellee, as shown upon the motion for a new trial, and we conclude that the errors contained in said instructions require that the judgment should be reversed and the cause submitted to another jury.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    Western Bank Note & Engraving Company, Appellee, v. John Meredith, Appellant.
    Gen. No. 5534.
    Appeals and errors—when finding of court not disturbed. A finding by the court will not be set aside on review unless clearly and manifestly against the weight of the evidence.
    Assumpsit. Appeal from the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    Hoover, Hartsburg & Amell, for appellant.
    Alschuler, Putnam & James, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

S. W. Jacobs and John Meredith were partners as Jacobs & Meredith, and they afterwards changed the name of the firm to John Meredith & Company. They had a contract to build a certain railroad for the Illinois & Pox River Central Railroad Company and were to be paid in part by bonds of said company. During said partnership Jacobs gave to the Western Bank Note <fe Engraving Company a written order to prepare one thousand lithographed bonds of said railroad company, for which it was to be paid $295, which order was signed “John Meredith <fe Company, purchaser, by S. W. Jacobs.” The engraving company prepared and delivered the bonds and has never received the $295 therefor. Afterwards the firm of John Meredith <fe Company dissolved and Meredith agreed to pay the debts of the firm. Thereafter the engraving company brought this suit against Meredith to recover the agreed price for engraving and printing said bonds. A jury was waived, the proofs were heard, and plaintiff had a finding and a judgment against defendant for $295, from which defendant below appeals.

The court refused three propositions of law, requested by appellant, to the effect that, under the law as applied to the facts, the finding should be for the defendant, and the judgment should be for the defendant, and that Jacobs had no authority to sign the name of John Meredith & Company. Undoubtedly Jacobs did have authority to sign the name of the firm in and about the business of the firm. The material contention of appellant is that the preparation of these bonds was a part of-the business of the railroad company and not of John Meredith «fe Company, and therefore Meredith could not bind the firm to pay for them. Jacobs and Meredith were each directors of the railroad company, and the various contracts and papers in evidence show a very close relation between these two men ¿and the railroad company. We do not need to determine whether the preparation of these bonds was properly an expense of the firm, for there is positive proof that, after this order was given and the bonds were delivered, Meredith recognized the liability of the firm to pay for them, and that, upon the 'dissolution, he positively promised Jacobs that he would pay this bill. Meredith denies that he made this promise, and that raised a question of fact to be decided by the trial judge. He saw the witnesses and heard their testimony, and the record presents no basis upon which we can question his decision upon this evidence.

The judgment is therefore affirmed.

Affirmed.


text:
    John Kennedy, Appellant, v. William C. Flick, Appellee.
    Gen. No. 5492.
    1. Pleading—what essentials of special replication. A special replication to a special plea must either deny the facts set up in the plea or must confess them and state other matter which will avoid the result claimed therefrom.
    2. Judgments—when involuntary non-suit need not he entered. If a case is regularly called for trial and the plaintiff is present but offers no evidence and does not ask for a non-suit, the court may properly find the issues for the defendant and enter judgment on the finding.
    Assumpsit. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldeedge, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    James J. Conway, for appellant.
    Arthur H. Shay, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

John Kennedy sued William C. Flick in assumpsit. By the withdrawal of pleadings and by demurrers sustained to pleadings, they were reduced to the third count of the declaration, which was the common indebitatus assumpsit count for money had and received, the general issue, with similiter thereto, and a special plea, an additional replication to said special plea, and a demurrer to said additional replication which demurrer the. court sustained. Plaintiff elected to abide by said additional replication and gave notice that he relied solely for his cause of action upon the facts set forth in said additional replication and had no other claim against defendant. The jury was waived, the cause was set to be tried twelve days later, and on the day fixed was called for trial, plaintiff appeared but offered no evidence, the court found the issues in favor of defendant and that plaintiff had no cause of action, and entered judgment for costs against plaintiff. Plaintiff appeals.

Plaintiff’s special plea alleges that defendant was the acting treasurer of the village of Eansom; that an ordinance had been adopted by the corporate authorities of said village for laying a concrete sidewalk along certain streets in said village and for paying a portion of the cost thereof by special assessment against the real property abutting upon said sidewalk; that plaintiff owned real property abutting upon said sidewalk; that said sidewalk was constructed -and plaintiff received the benefit thereof and in consideration of the construction of said sidewalk and the benefit so received by him, plaintiff voluntarily paid defendant as such treasurer the money due from plaintiff to said village of Eansom on account of the construction of said sidewalk, which money defendant as village treasurer accounted for to said village and paid out long prior to the commencement of this suit upon vouchers duly drawn upon him as such village treasurer by the corporate authorities of said village, which is the identical money plaintiff seeks to recover from defendant in this action. The additional replication to said special plea avers that plaintiff ought not to be barred from having his said action by anything in that plea alleged, becanse defendant represented to plaintiff that a certain tax or special assessment was levied upon certain real estate of plaintiff situated in the village of Eansom and that, by reason of such representations, plaintiff paid to defendant as treasurer of said village the sum of money in said special plea mentioned; and the plaintiff averred that in fact there was no such special assessment or tax levied against any real estate of plaintiff in said village of Eansom, and that, having afterwards ascertained that there was no such special assessment or tax levied against any real estate of plaintiff in the village of Eansom, he, the plaintiff, while defendant had said money of plaintiff in his possession and before defendant had paid out the same or any part thereof upon vouchers, duly drawn upon defendant as said village treasurer by the corporate authorities of said village, demanded of defendant that he repay to plaintiff said money, being the same money in said special plea mentioned, but defendant refused and still refuses to repay the same to plaintiff or any part thereof.

It is fundamental that a special replication to a special plea must either deny the facts set up in the plea or must confess them and state other matter which will avoid the result claimed therefrom. This additional replication neither denied nor confessed the allegations of the plea that the corporate authorities of the village had adopted an ordinance for the laying of a concrete sidewalk along certain streets, and for paying part of the cost thereof by special assessment against the real property abutting on the sidewalk; that plaintiff owned real property abutting on said sidewalk; that the walk was constructed and plaintiff received the benefit thereof; that in consideration of the construction of the sidewalk and of the benefit which plaintiff received therefrom he voluntarily paid to defendant as such treasurer the money due from plaintiff to the village of Ransom on account of the construction of said sidewalk. Instead of confessing or denying these material allegations, plaintiff averred that defendant told him that a certain tax or special assessment had been levied on plaintiff’s real estate in said village, and relying on that representation, he paid the money mentioned in the plea, when, in fact, no such tax or special assessment had been levied against his real estate. Plaintiff does not deny that the walk had been built and his property had been benefited and that he voluntarily paid the money because of the building of such sidewalk and of the resulting benefit to him, but he alleges that defendant told him there was a special assessment, and he paid the money because defendant told him that, when in fact there was no special assessment. This was a clear departure from the plea. It was an attempt to re-state a cause of action without answering the plea. The court properly sustained the demurrer.

Though plaintiff elected to abide by his demurrer, and one plea to all that was left of the declaration was thereby confessed, and that confession entitled defendant to a judgment in bar, yet the court did not at once enter such judgment in liar, but proceeded to call the case for trial. The record shows that on the day set for the trial the parties appeared by their respective attorneys, and plaintiff made certain motions which the court granted, and then the court called the case for trial, and plaintiff offered no evidence, and the court found the issues for the defendant and entered judgment for defendant and against plaintiff for the costs. Plaintiff argues that the court should have entered an involuntary non-suit against him instead of a judgment in bar. There are early cases in the state holding that if plaintiff does not appear, or when he has given no evidence upon which a verdict may be based, an involuntary non-suit should be entered, and such seems to be the common law. Tidd’s Practice 868; Herring v. Poritz, 6 Ill. App. 208. We conclude, however, that the distinction laid down in Delano v. Bennett, 61 Ill. 83, must prevail here. The court there said: “If when a cause is regularly called upon the docket, the plaintiff do not appear, the court should dismiss the suit for want of prosecution and render judgment as in case of non-suit. But if he appears, and is present when the trial commences, then, though he object to the case being tried, yet, if he desire a non-suit, he must make his desire known, by asking for it. ’ ’ The later case of Holmes v. C. & A. R. R. Co., 94 Ill. 439, said there should be an involuntary non-suit if plaintiff had given no evidence upon which the jury could find a verdict. In Boyce v. Snow, 187 Ill. 181, both Delano v. Bennett and Holmes v. C. & A. R. R. Co., were quoted from, and the Delano case at length. In Boyce v. Snow, supra, there had been a judgment of non-suit, in a previous suit between the same parties for the same cause of action, when plaintiff declined to proceed with the trial. It was held that that non-suit was involuntary; but the court took pains to show that it did not decide whether such judgment of non-suit was or was not erroneous. In Sanitary District v. Chapin, 226 Ill. 499, the court treated Delano v. Bennett, supra, as an effective decision that if the parties appear and defendant insists upon a trial, the court cannot dismiss the case for want of prosecution (an involuntary non-suit), but the plaintiff must elect to take a non-suit (a voluntary non-suit), or let the case go to trial. So far as the language in the Holmes case seems inconsistent with that used in the Delano case, we conclude that the Delano case has the later approval of the Supreme Court. Therefore we hold that as the case was regularly called for trial and plaintiff was present and offered no evidence and did not ask for a voluntary non-suit, the court properly found the issues for defendant and entered judgment on. the finding. We so hold the more readily because defendant was also entitled to a judgment in bar under the special plea confessed by the defendant.

The judgment is therefore affirmed.

Affirmed.


author: Per Curiam.

text:
    Emil Seghetti, Plaintiff in Error, v. B. F. Berry Coal Company, Defendant in Error.
    Gen. No. 5551.
    Appeals and errors—wliat not final judgment. An election to abide by a declaration and a judgment for costs is not final and appealable; a judgment to be final must be that the plaintiff take nothing by his suit and that the defendant go hence without day.
    Action in case for personal injuries. Error to the Circuit Court- of Putnam county; the Hon. T. N. Green, Judge, presiding. Heard in this court at the April term, 1911.
    Dismissed.
    Opinion filed November 23, 1911.
    J. L. Murphy, for plaintiff in error.-
    McDougall, Chapman & Bayne, for defendant in error; Mastín & Sherlock, of counsel.
   Per Curiam.

The court below sustained a demurrer to an 'amended declaration filed by plaintiff in error and entered a judgment that defendant recover its costs from the plaintiff and have execution therefor. This is a writ of error sued out by plaintiff below to review that judgment.

The judgment is not final. It is not in bar of the action. The abstract states that plaintiff elected to abide by bis amended declaration. This is not sustained by tbe record. Tbe case is still pending in tbe court below and the plaintiff may still elect again to amend bis declaration or be may hereafter elect to abide by tbe amended declaration. Even if plaintiff bad elected to abide by bis amended declaration still there is no final judgment. Tbe judgment should have been that plaintiff take nothing by bis suit and that defendant go hence without day. No such judgment having been entered, tbe judgment for costs is interlocutory only and no appeal or writ of error lies therefrom. We so held in Wilkinson v. Olin, 136 Ill. App. 527; Hartzell v. Maryland Casualty Co., 139 Ill. App. 366, and Williams v. Connors, 149 Ill. App. 129. To tbe same effect is People v. Board of Education, 236 Ill. 154, and Chicago Portrait Co. v. Chicago Crayon Co., 217 Ill. 200. In the latter case, as here, neither party raised the question. There the Appellate Court took jurisdiction and the Supreme Court decided that the Appellate Court had no jurisdiction and dismissed the appeal. For the reasons there stated this writ of error must be dismissed with leave to plaintiff in error to withdraw his record, abstracts and briefs and to defendant in error to withdraw its briefs.

Dismissed.