text:
    The Merchants National Bank of Chicago v. William J. Manning.
    Gen. No. 13,527.

      Contract—release construed. A release passing between attorney and client set forth in this opinion is made the subject of construction and is held, among other things, to contain no express or implied agreement for future employment.
    Assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in this court at the March term, 1907.
    Reversed.
    Opinion filed December 23, 1907.
    Statement Tby the Court. In the court below the appellee was defendant and the appellant plaintiff, and they will be so denominated in this opinion.
    The plaintiff sued the defendant in actions of assumpsit in the Circuit Court in two suits. The first was on two notes signed by defendant, each for $250, dated December 26, 1899, and payable to the order of the plaintiff in two and three years after date respectively, with interest at the rate of 4 per cent per annum. This suit was begun January 9, 1903. On February 14, 1903, the defendant paid $100 on one of the notes sued on. In this first suit a plea of set-off was filed by the defendant February 6, 1903, which set up that plaintiff was indebted to him in the sum of $8,861, for services as attorney and solicitor, the reasonable value of which was that sum. • There was also a second plea of set-off, which included certain of the consolidated money counts and averred that the defendant reasonably deserved to have of the plaintiff the sum of $8,541.48 for services as the attorney and solicitor of the plaintiff. To these pleas of set-off was appended, as an account sued on, the formal charge of $9,000 on each of the money counts included in the second plea and this specific item:
    “For services rendered, disbursements made and obligations incurred on behalf of said Bank as one of the prosecuting creditors whose claims aggregate $28,272.32 and were allowed by the Court in the suit of Swain P. Chick et al. v. Northwestern Shoe Co. et al., now pending in the Circuit Court of the United States for the Northern District of Illinois, Northern Division, $8,851.48.”
    To these pleas the plaintiff first filed four replications. The first one denied the indebtedness alleged in the pleas and concluded to the country. The third alleged in general terms a release by deed on December 26, 1899, of all demands which the defendant then had against the plaintiff; and the fourth alleged an accord and satisfaction as to said demands before the commencement of the suit. With the exception of the formal parts we give the second replication in full, as it contains the release, the construction of which forms the vital issue in this case:
    “All the several supposed causes of action or set-off mentioned in said pleas of defendant accrued and were owing to the defendant prior to the 26th day of December, 1899, and prior to the commencement of this suit, to-wit, on December 26th, 1899, the defendant executed under his hand and seal and delivered to the plaintiff his, defendant’s, release in writing in the words and figures as follows, to-wit:
    ‘Know all men by these Presents, that I, William J. Manning of Chicago, in consideration of one dollar to me in hand paid and for other valuable considerations do hereby forever release and discharge the Merchants National Bank of Chicago of and from all claims and demands of every nature and description I may have against it at law or in equity down to the date hereof.
    ‘But this release is without prejudice to the right of said Manning in case of a recovery by the complainants or intervening creditors in the suit of Chick et al. v. Northwestern Shoe Company et al., now pending in the Circuit Court of the United States for the Northern District of Illinois after payment of court costs to present and have allowed to him by said Court in said cause out of the proceeds recovered therein before any dividend is paid to creditors, such sums, if any, for his disbursements and solicitor’s fees as said Court shall determine have been paid out and rendered for and on behalf of the complainants, the co-complainants or intervenvening creditors in said cause.
    ‘Witness my hand and seal this 26th day of December, 1899.
    Wm. J. Manning, [Seal].’ ”
    A rejoinder was filed by the defendant to the fourth replication traversing the accord and satisfaction and concluding to the country.
    After rejoinders to the second and third replications had been successfully demurred to an amended rejoinder was filed by the defendant to them. This rejoinder (filed October 14, 1905) alleged that at the date of the said release, December 26, 1899, plaintiff was indebted to defendant in the sum of $7,441.28, which was the reasonable value of defendant’s services as attorney and solicitor in prosecuting in behalf of plaintiff certain actions at law and in equity against the Northwestern Shoe Company; that the cause was pending in the United States Circuit Court, and owing to a controversy which had arisen over a guaranty defendant had made to the plaintiff on account of the Columbia Harness Company, the plaintiff had at that time notified defendant that it did not wish him further to represent it in said cause, and thereupon defendant notified plaintiff of the amount of his hill, and that he should continue to represent it until the bill was paid; whereupon the plaintiff made no effort to obtain the substitution of another solicitor in the said cause, but advised the defendant that until some settlement of the Columbia Harness Co. matter was made, it did not wish the defendant to incur further expense in said cause or further represent it, and thereafter and not otherwise the parties got together to adjust the Columbia Harness Company matter, and the release set out in said replication was executed and delivered by the defendant, and it was understood and agreed as a part of said release, and evinced upon the face thereof, that the defendant should continue to represent the plaintiff bank in said cause therein referred to, which he did for several years thereafter. The said bank at the same time that said pretended release was executed, executed and delivered to the defendant a receipt for his five notes for two hundred and fifty dollars each, payable in one, two, three, four and five years after date, with interest at 4 per cent per annum in full of all demands to date, the receipt containing the agreement as to the settlement being without prejudice as to certain rights of the defendant in identically the same words in which it appears in the release recited in the replication. The defendant “in that behalf and with that understanding” perfected the appeal to the United States Circuit Court of Appeals, where the case was briefed at very great length on both sides, and argued and subsequently reargued, resulting in the affirmance of the decree of the Circuit Court sustaining the exceptions theretofore filed to the master’s report in said cause. Thereupon the defendant prosecuted a writ of certiorari seeking to take said cause thereby to the Supreme Court of the United States, which was denied. Thereupon E. A. Otis appeared in open court, and being duly authorized by the bank to do so, advised the judges thereof, and notified the defendant, in behalf of said bank, that the defendant was not 'authorized to use the name of said bank in said proceedings, or to take further steps therein to effect a recovery in said cause in behalf of said bank. The master in chancery in said Chick ease had recommended a decree in favor of the creditors against John Hannah and Jacob Graff for $66,856.01, and against Barnett Graff and Frank Harris for $130,605.10, and a decree was accordingly entered against said parties for said sums, which remained unreversed.
    While said proceedings were pending it came to the knowledge of the defendant that Moses Harris, the father of Frank Harris, had died intestate and Frank Harris had inherited property from him, and it had also come to the knowledge of the defendant that John Hannah had made a fraudulent conveyance of valuable farm property in Boone County, Illinois, which should be set aside to satisfy the demands of the said bank and other creditors of the Northwestern Shoe Co. Defendant being desirous of further prosecuting said suit fertile purpose of recovering the sums justly due said creditors in said cause and thereby reimbursing himself for the value of his services and disbursements under the contract of employment as aforesaid, which then amounted to $9,923.80, attempted to proceed in said cause as against Frank Harris, John Hannah, Barnett Graff and Jacob Graff, and was prevented by the plaintiff, who notified him and notified the courts that the defendant had no authority to proceed therein, and thereby defendant was rendered unable to carry said matters to a final conclusion, whereby plaintiff became liable to defendant to pay the fair and reasonable value of defendant’s services and disbursements in said cause under said contract of employment, amounting to $9,923.80.
    A demurrer filed by the plaintiff to this rejoinder was overruled, whereupon the plaintiff filed several surrejoinders, which were all successfully demurred to and are out of the case except one. This one (the third amended surrejoinder filed February 23, 1906) alleged that plaintiff ought not to be barred, etc., because “it was not understood and agreed as a part of said release nor v?as it. at any time agreed by the plaintiff with the defendant, that the said defendant after the execution of said release should continue to represent the plaintiff in said cause of Chick et al. v. The Northwestern Shoe Co. et al.,” and concluded to the country.
    By leave of court the plaintiff afterward filed an additional replication, which was subsequently amended and in its amended form was filed February 23, 1906. It set up that the services and disbursements in the defendant’s pleas of set-off mentioned were not rendered or made in behalf of the plaintiff separately, but in behalf of several other named parties as well, and were therefore not the separate obligations of the plaintiff, but the joint debts of the plaintiff and all the other parties mentioned, and could not be 'set off against the plaintiff’s demands.
    To this amended additional replication the defendant filed a rejoinder (March 19, 1906), which declared that the said services and disbursements were rendered and made in behalf of the plaintiff severally and were not rendered and made in behalf of the other parties named, and concluded to the country.
    It will thus be seen that by the pleadings in the first case four issues of fact were made. There was no plea denying the liability of the defendant on the notes, and these issues are entirely on the pleas of set-off. The first is made by plaintiff’s replication of non-assumpsit filed December 5, 1904; the second by plaintiff’s replication of December 5, 1904, alleging an accord and satisfaction, and the defendant’s rejoinder traversing the same filed December 24, 1904; the third by the assertion in the defendant’s amended rejoinder of October 14, 1905, and the denial in plaintiff’s third amended surrejoinder of February 23, 1906, that there was an understanding or agreement as a part of the release of December 26, 1899, or otherwise, that the defendant should after the execution of said release continue to represent the plaintiff in the case of Chick et al. v. The Northwestern Shoe Company et al.; and the fourth by the assertion in plaintiff’s amended additional replication filed February 23, 1906, and the denial in defendant’s rejoinder filed March 19, 1906, that the alleged claims in set-off were joint obligations of certain parties and not separate or several obligations of the plaintiff.
    After this first suit by the plaintiff against the defendant had been pending for about two years, another was brought (December 28, 1904) on two other notes of exactly the same tenor as those sued on in the first suit, except that one of them was payable four years after the date thereof and the other five years after said date. The pleadings so proceeded in this second suit, and such stipulation was made, that the same issues of fact were finally presented as in the prior suit and by the same final joinders.

      In the second suit, however, the defendant claimed in his pleas of set-off as due for services in the Chick case $10,872.14, and he filed with them an itemized account for the same, with items which began on April 30, 1893, and ended (except for an interest charge) on November 10, 1902.
    By stipulation the two suits were consolidated, a jury was waived, and the cause submitted to the court. It was tried by the court, the trial beginning on December 26, 1906. Of course there was no defense on the notes, but the court found the issues for the defendant on the pleadings in set-off and assessed his damages at $2,941.30. A motion to set aside this finding and for a new trial and a motion in arrest of judgment were overruled by the court, and judgment was, on January 24, 1907, given for the defendant for the amount of the finding. From that judgment the plaintiff appealed to this court, and has here assigned errors which challenge the finding of the court below on the facts put at issue by the pleadings, and also its ruling on the law of the case, as shown by its sustaining the defendant’s demurrers to the first and second amended surrejoinders of the plaintiff to the amended rejoinder of the defendant to the second and third replications of the plaintiff to the several pleas in set-off of the defendant. It is, however, only an objection to the ruling on the demurrer to the second of the amended surrejoinders that the plaintiff argues. This surrejoinder set up that as to so much of the services as were rendered by the defendant prior to the release of December 26, 1899, the release constitutes a full discharge, because as a consideration for the release and the promissory notes given to it by the defendant, the plaintiff cancelled and delivered to defendant a written contract of guaranty, which the defendant had before executed and given to plaintiff and on which defendant had become liable to plaintiff in the sum of eight thousand dollars, and because the plaintiff also can-celled said indebtedness and delivered to defendant a receipt in full of all demands to date, and also two hundred and forty-seven shares of the capital stock of the Columbia Harness Company, which the plaintiff had been given by the defendant as collateral security for his said indebtedness, all of which matters, the cancelled contract of guaranty and the said stock and receipt, the defendant still retained and had at no time returned or offered to return to the plaintiff, to whom the indebtedness of $8,000 still remained unpaid. These allegations the plaintiff offered to verify. As to so much of said services as the defendant alleged in his pleading were rendered and made subsequent to the execution of the release of December 26, 1899, the plaintiff in the same surrejoinder alleges it did not undertake or promise, etc., and puts itself upon the country.
    The demurrer to this surrejoinder, which was sustained, for special causes of demurrer says that the said surrejoinder concluded to the country, when it should have concluded with a verification, that it attempted to put in issue mere inferences and matters of law, and that “the plaintiff hath in and by its last mentioned plea supposed that the defendant has rescinded or sought to rescind the contract of December 26, 1899, when in truth and fact the defendant hath not rescinded or sought to rescind said contract.”
    The sustaining of this demurrer the plaintiff insists was erroneous.
    It also attacks the rulings of the court in holding and refusing certain propositions of law, and in its refusal to admit evidence offered to prove the amount due plaintiff from defendant at the time the release of December 26, 1899, was executed.
    Holland & Elliott and W. K. Otis, for appellant.
    Charles H. Aldrich, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

Although there is before us in this appeal a transcript of a thousand printed and typewritten pages, an abstract of 375 printed pages, and altogether about 200 printed pages of argument, which has been supplemented by able oral arguments before us, the questions at issue lie within a small compass.

There is no doubt that defendant is liable to plaintiff on the four promissory notes which are sued on, and which amount, taking into account a payment made since this suit began, to $900 with interest at 4 per cent per annum from December 26, 1899, to February 14, 1903, on $1,000, and on $900 since that date.

The dispute is whether the plaintiff is indebted to the defendant in a greater sum, as was found by the court below, and this largely at least depends on the meaning and construction to be put on a few words in a release of that same date, December 26, 1899, executed by the defendant to the plaintiff and repeated in the receipt given by plaintiff to defendant for his notes.

The great mass of testimony is principally devoted to putting«a construction on those words by the light of surrounding circumstances and previous and contemporaneous communications. We are unable to agree with the appellee or with the court below on this construction.

The entire basis for the claim of the defendant in set-off is that it was agreed as a part of the release of December 26, 1899, that the defendant should continue to represent the plaintiff bank ih a certain action then pending in the Circuit Court of the United States for the Northern District of Illinois, entitled Chick et al. v. The Northwestern Shoe Company et al. This was set up in the defendant’s amended rejoinder filed to the plaintiff’s second and third replications and was traversed by the defendant’s amended surrejoinder, as the statement prefixed. to this opinion shows in detail. This formed the third issue of fact joined by the pleadings, as is shown also by said statement, but if it should be found for the plaintiff, it must dispose of the others as well. There could then be no reasonable ground to uphold the plaintiff on the first or second of these issues, and the fourth would become immaterial.

The allegations that the plaintiff at the time of the release of December 26, 1899, agreed with the defendant for further employment on a contingent fee, or otherwise, and that this contract was afterward broken or interfered with by the plaintiff without the defendant’s fault, are the very gist of this cause. If the defendant cannot sustain them he cannot and should not recover either strictly on the pleadings or in the larger equitable view which the court below indicated that he took, for it is plain that without these elements the said release of December 26, 1899, must have discharged all indebtedness for previous services, and there is no claim of employment of the defendant by the plaintiff for services to be performed after December 26, 1899, except on that date and contemporaneously with the execution of the release.

The defendant in his amended rejoinder says that it was "evinced on the face of said release that the defendant should continue to represent the plaintiff in the Northwestern Shoe Company case. We cannot see where this agreement is found. The reservation clause in which alone, of course, it would exist, either expressly or impliedly, keeps for defendant the right to present and have allowed to him by the Circuit Court of the United States, out of the proceeds that might be recovered in that case “by the complainants or intervening creditors” such sums, if any, for liis disbursements and solicitor’s fees as said court shall determine have been paid out and rendered for and in behalf of “the complainants, the co-complainants or intervening creditors in said cause.”

We cannot see how, taken by itself, this provision contains any express or implied agreement for future employment of Mr. Manning. It is perfectly consistent with the claim made by the hank that it was entirely understood that the bank might not continue in the case, and if it did, that it was to be represented not by Mr. Manning, but by its usual counsel.

Viewed moreover in the light which the other evidence in the record throws upon it, the language seems to us quite plainly to indicate the purpose of its insertion in the release.

The case had passed from a prosperous and hopeful stage to the complainant and creditors on the master’s report, to a doubtful and discouraging one on the decree of the court dismissing the bill against several of the defendants. Mr. Manning was not convinced that he was wrong, and was determined to press the matter further in behalf of some of the interested parties at least. If he should go to the Court of Appeals and secure the reversal of Judge Jenkins’ decree and the virtual confirmation of the master’s conclusions, a considerable fund would be at hand for distribution. On that fund, according to the usual procedure of the court, there would be an equitable claim in favor of the lawyer’s fees and expenses which had been paid by the prosecuting parties at any previous stage of the proceedings, or for which they were liable either absolutely or contingently. An absolute release for consideration of a claim for several thousand dollars for such fees and disbursements from Manning to the bank on December 26, 1899, would certainly have furnished ground for the bank to claim payment to itself of whatever part of the fund that thus might be recovered, which should be set-off as compensation for the legal fees and expenses, incurred by the bank prior to December 26, 1899, and released to it by Manning on that date.

If anything more than a protection against such a claim of the bank and a reservation to himself of such an allowance, if made, was intended in favor of Mr. Manning by the clause in question, it is strange that it was not expressly stated in terms which could not be mistaken.

It is claimed by the appellant that the decision of the court below in this case was presumably made wholly on the construction of the reservation clause in the release and receipts of December 26, 1899, and this position finds color in the rulings of the court in the fourth proposition of law submitted by the plaintiff and rejected by the court, and the first proposition of law submitted by the defendant and held by' the court. These propositions are as follows:

Plaintiff’s fourth proposition, rejected by the court:

“If it appears from the evidence that at the time of the execution of the release of December 26, 1899, and prior thereto, the defendant represented certain of the complaining creditors in the suit of Chick v. The Northwestern Shoe Company in the Circuit Court of the United States for the Northern District of Illinois, and that the defendant had taken an active part in the prosecution of such suit such as might entitle him to an allowance of solicitor’s fees out of the fund recovered, if any, and if it further appears that the plaintiff was not a party complainant in said suit, and had not appeared in the same except to prove up its claim before the master in accordance with an order of court, in such case the Court holds that no obligation was imposed upon the plaintiff by the reservation in said release in regard to solicitor’s fees and disbursements to take any part in subsequent proceedings in said case or to allow the defendant to take any proceedings in its name or to incur financial obligations on its behalf, and the burden of proof is on the defendant to show by a preponderance of evidence that such an agreement was made.”

Defendant’s first proposition, held by the court:

“The agreement exchanged between the plaintiff and defendant on December 26, 1899, together with the stipulation withdrawing the plea of set-off in the case then pending between the parties in the Circuit Court of Cook county, were effective for two purposes:

First: To settle all matters of difference between the parties to that date, both with respect to the Columbia Harness Company and the claim of defendant for services in the Chick case on the part of the plaintiff.

Second: To establish the right of the defendant, Manning, to go forward in the Chick case and receive pay for his services from any fund realized. This right to go forward with the litigation is as much a part of the agreement as the settlement.”

We have made it clear that if the construction placed on the reservation by the court made that reservation by itself sufficient to prove the further employment of defendant by the plaintiff, we do not agree with that construction.

On the contrary we see no reason why the fourth proposition of the plaintiff above quoted does not state the law accurately. If the agreement in the release and receipts did not by themselves show the further employment of Manning, that employment becomes a question to be decided by parol evidence, and the burden must have been on the defendant who introduced it as new matter in his rejoinder to prove it.

There is a conflict of evidence, of parol evidence, on this point; but we cannot hold otherwise than that the defendant signally failed to establish by a preponderance of evidence his contention. The appellee himself testified concerning this matter as follows:

The question was asked him: “Mr. Manning, what was said, if anything, at the time these so-called releases were executed on December 26, 1899, about the further prosecution of the Chick case?”

lie answered: “It was said I should proceed with the prosecution of the suit in the same manner that I had been, prosecuting it for the creditors whose claims represented $28,272.32, of which the bank’s claim was $5,726, and the principal prosecuting creditor, and that the case was to be prosecuted; and the only question between Judge Otis and myself was, he told me at that time he hadn’t even read the record, that he was going to look the record over, and he might possibly want to come in to assist me, and I said I had no objection.”

In contradiction of this Mr. Otis testified: “My first interview with Mr. Manning leading up to the settlement of December 26, 1899, was on December 15, 1899. * * The next conversation took place December 23rd at my office. * * We met again on the 26th of December, 1899. * * In one of these three conferences, either December 15th, 23rd or 26th, the question came up as to what the bank was going to do. I was attorney for the bank at that time in the Chick case. Its claim had been proved up for about $5,600, and the question was asked by Mr. Manning, What does the bank propose to do with its claim?’ * """ I told Mr. Manning that this was the position of the bank, that I was acting as its attorney and would examine the record, and if in my judgment I thought there was a fair chance of success in the-case, and it was determined to appeal, I would advise the bank to join in that appeal” (Mr. Manning represented other parties in the case), “and would myself appear as the attorney of the bank and represent it and take part in the argument of the case. On that occasion Mr. Manning did not say literally or in substance that this settlement was not to prevent him from continuing in the Chick case as attorney for the Merchants’ National Bank. He made no such statement of that kind on that occasion. * * * Never on any occasion after I began our conferences about the settlement of December 26, 1899, did he say that he made it a condition of the settlement that he should continue to represent the bank in the Chick case after the settlement. I am not sure whether I met him once after the settlement in regard to the subject. He referred me to his associate, Mr. Bulkley, who was more familiar with the details, and I did see Mr. Bulkley. In the meantime I had looked over Mr. Aldrich’s brief and examined the record in the Chick case, and I told Mr. Manning that the bank had decided not to appeal. Mr. Manning did not state to me that he was going on to represent the bank in the appeal any way. He made no such statement to me. He never at any time said he was going to represent the bank, except as he says it in his letters after the maturity of the first note. * * * When I was proceeding to make the settlement with Mr. Manning in the Fall of 1899, the officers of the Merchants’ National Bank, Mr. Blair and Mr. Crosby, both told me to settle with Mr. Manning for all claims he had against them and they against him, and to get rid of him.” * * *

The Court: “ In this connection I would like to -ask, did you communicate to Mr. Manning your instructions from the bank officials in any way ?”

Answer: “Yes, sir. I said we were there to settle all claims lie had against the hank and all claims the bank had against him.”

Both these witnesses stand unimpeached before us, but the burden of proof is upon Hr. Hanning, as we hold. On our assumption that both witnesses are intending to be truthful, it is evident that there was a very serious misunderstanding of what the situation between the bank and Hanning, outside of the release of claims to that date, was to be. But such misunderstanding, if it existed, does not sustain or relieve the burden which falls on Hr. Hanning under his pleadings to prove his employment.

There is a question raised by the appellant as to the power of Hr. Otis, who was, it would appear from his testimony, the’ representative of the bank in this settlement for the purpose of finally severing its relations with Hr. Hanning, to re-employ him, but apart from this altogether we find that there is no sufficient proof in the written instruments involved or in these conflicting statements recited that any attempt was made to do so.

The defendant, however, claims justification for his construction of the instruments and corroboration of his version of the negotiations and contract between him and the bank in the surrounding circumstances shown by the documentary evidence put in evidence by him and by his testimony in connection therewith. It is not to be expected that we should go over in detail this testimony and this correspondence in this opinion. It is sufficient to say that we have conscientiously considered it and find no such inference to be derived from it.

Rather we should say that the plaintiff was justified in the contention it makes that “Mr. Manning was discharged as attorney for the bank on June 4, 1898 (which discharge was acquiesced in by his letter of June 4, 1898), and never afterwards re-employed, and that any claim he had for services was. settled December 26, 1899.”

As we thus interpret the record it is plain that we must hold that the first three of the four issues of fact raised by the pleadings must be decided by us for the plaintiff, and that this makes the fourth immaterial.

This in itself disposes of this case, for it is on the issues raised by the pleadings, and not on some other view of the case, that the cause must be decided by us. The cases cited by defendant are either on the proposition, not denied by the plaintiff, that evidence was properly received to throw light on what was included in the release, or upon the proposition, which becomes immaterial if our holding as to the re-employment of Mr. Manning be correct, that a lawyer employed on a contingent basis is entitled to carry on the litigation to a final conclusion, and if the client interfere by dismissing either the suit or the lawyer, he makes himself liable for services rendered on a quantum meruit basis. But the possible applicability of these cases rests on the point first set forth in appellee’s brief, which was the proposition on which the court below also founded his judgment, that the agreement of December 26, 1899, placed the appellee in the position of an attorney employed on a contingent basis. As we do not concur in this view of the matter, it is needless for us to discuss the cases.

But as the learned judge below, in his opinion on the motion to set aside his finding, which is inserted in the record, declared that while it might be true that “under the technicalities of the law the defendant’s pleadings might not be in proper shape,” he regarded the action as a purely equitable one, and had decided it on that basis, and as the suggestion was pressed in oral argument before us, that we should look at the matter here in the same light, unhampered by any narrow view of the pleadings and strict rules concerning the burden of proof thereunder, it seems to us proper to say that on an equitable view of the matter— such a view as a court of equity might take—the position of the defendant does not commend itself to us.

It is that, despite the fact that a settlement was made on December 26, 1899, which purported and is conceded was intended at least to release the plaintiff from any personal liability for services rendered before that date and for any unsuccessful services rendered after it, and despite the fact that, all the proceedings which the defendant could have taken in this case, had plaintiff given him the fullest leave to do so in its name, were taken by him (the appeal to the Circuit Court of Appeals not requiring, as Mr. Manning himself testifies, the use of its name, and the certiorari proceedings in the Supreme Court containing it), and despite the fact that these proceedings were all unsuccessful and futile, yet the release should be held for naught, because the bank wrongfully, but without actual damage to the defendant, refused its consent to the use of its name in the prosecution of the suit by appeal and certiorari proceedings, and that this practical cancellation of the release should be without the restoration of the status quo before it was given, and without any offer of the defendant to return in any form the considerable moving consideration for which it was given. This certainly is not “equitable”; it is rather the enforcement of a penalty in favor of the defendant for a wrongful action, which resulted in no damage to him.

Whether or not the ease of Swinnerton v. Monterey County, 76 Cal., 113, is correct in holding that in no case could a lawyer wrongfully discharged when serving under a contingent fee agreement recover damages if he could not have won the suit, we do not think that the application of “equitable” rules to mitigate “the technicalities” of the law can properly be made to effect such a result as the judgment below in this case.

It is true that this view of the matter does not take into account the alleged interference of the plaintiff with the desire of the defendant to file in the plaintiffs’ names a creditors’ or auxiliary bill against Frank Harris, John Hannah and the two Graffs, but the court below, although this is the only breach of the alleged contract of employment actually set up in the defendant’s amended rejoinder, expressly disavowed any holding that the filing of such a bill was within the authority which he considered Mr. Manning had given or left to him at the time of the release, saying that the matter of that proposed bill should be left out of the ease entirely.

He could not reasonably have held otherwise, for the release and the receipts speak only of the suit of “Chick et al. v. The Northwestern Shoe Company et al. now pending in the Circuit Court of the United States,” and the proceeds that might be recovered ie therein” and the amended rejoinder of the defendant says that it was a part .of the reléase that the defendant should continue to represent the said plaintiff in said cause therein referred to. A creditor’s bill upon a decree or judgment is a distinct suit, and an auxiliary bill does not substantially differ therefrom.

Moreover it appears from the appellee’s own testimony that the question of such a creditor’s bill was not mentioned at the time of the settlement of December 26, 1899.

Our conclusion is that the judgment of the Circuit Court must be reversed and judgment entered here in favor of -the appellant, against the appellee for $900, with interest on $1,000 at 4 per cent per annum from December 26, 1899, to February 14, 1903, when $100 wras paid on one of the notes, and interest on $900 at the same rate from February 14, 1903, and it. is so ordered.

Reversed and judgment here.


source: Caselaw Access Project

author: Mr. Justice Brown

license: Public Domain

text:
    Edward Oehler et al. v. Charles Levy.
    Gen. No. 13,520.
    1. Injunction—what essential to valid form of. An injunction should be as definite, clear and precise in terms as is possible, in order that there may be no excuse or reason for misunderstanding or disobeying it.
    2. Injunction—when lies to restrain nuisance. Equity will interfere to restrain the continuance of a nuisance before a jury has found that a nuisance exists where the evidence clearly discloses both the nuisance and the injury and the continuity thereof.
    3. Injunction—when does not lie to restrain maintenance of obstruction in public street. Held, under the evidence in this case, that an injunction should not be granted at the suit of an individual property owner showing no special damage in excess of that sustained by the public at large and showing no physical disturbance of his property rights, to restrain the obstruction of a public street.
    4. Nuisance—what constitutes. A stable may become a legal nuisance which should be enjoined, where so conducted that the odors are likely to result in injury to the health of persons occupying adjoining property and where the noise accompanying its conduct is such as to disturb the peace, comfort and sleep of those living in the neighborhood, even when the stable may have been the first building in time of construction and operation. Priority in location is not always controlling.
    Bill in chancery. Appeal from the Superior Court of Cook County; the Hon. Willard M. McEwex, Judge, presiding.
    Heard in this court at the March term, 1907.
    Reversed and remanded.
    Opinion filed December 23, 1907.
    Samuel B. Kiito and Jule F. Brower, for appellants.
    Zach Hoeheimer and T. H. Clieeord, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This appeal is by the appellants from a decree of the Superior Court on a bill in chancery brought by them against the appellee as defendant.

The material parts of the decree furnish in themselves a sufficient statement of the facts. The dispute is much less about them than about the proper application of the law to them.

The decree of the court finds that the equities of the cause are with the complainants (the appellants here) “as hereafter set out.” The subsequent findings of fact are those:

The complainants at the time of the filing of the bill of complaint in the cause were the owners and in possession of lots ninety-one to ninety-four of Potter Palmer’s resubdivision of block eleven and that part of block twelve lying south of Polk street of Codeweiss’ subdivision in the west half of the southeast quarter of section eighteen, township thirty-nine north, rango fourteen east of the third principal meridian, in Cook county, Illinois, improved with a three-story brick flat building containing ten flats designed for use and in fact used as living apartments. The complainant, Edward Oehler, then resided in one of said flats as his home. The defendant was at the time of the filing of the bill of complaint the owner of lots ninety-five and ninety-six in the same subdivision, which at the time of the filing of the bill of complaint were improved with a story and a half structure divided into a basement and an upper room, the floor of which is five feet or thereabouts above the level of Lincoln street, in Chicago, on which all of said property fronts and abuts. This property was used by the defendant at the time of the filing of the bill of complaint, and for a long time prior thereto, as a stable, wherein the defendant during said time kept twenty horses or thereabouts and several wagons, which horses and wagons were used by the defendant for the purpose of delivering newspapers, and were harnessed and unharnessed upon and about said premises.

At the time of the filing of. the bill of complaint, and for more than a year prior thereto, the defendant had suffered and permitted to accumulate on the premises so occupied by the defendant large quantities of manure, which emitted noxious and offensive odors to such an extent that such odors entered the flat building owned by the complainants as aforesaid, and permeated and rendered offensive the atmosphere in said building. The defendant in the conduct of his business caused to be harnessed and unharnessed a large number of horses during the middle hours of the night, which are usually given to sleeping. The servants of the defendant employed on said premises in harnessing and unharnessing and at different hours of the day used a great deal of loud, profane and obscene language, which was loud enough to be heard by the occupants of the building owned by complainants as aforesaid. The noise accompanying such harnessing and unharnessing and low language was such that it was customarily heard by occupants of the north rooms of the building owned by complainants aforesaid, so as to disturb their sleep. By reason of such odors and language and loud talking the stable conducted by defendant as aforesaid in the aforesaid manner in which it was conducted, constituted a nuisance, at the time of the filing of the bill of complaint. The rental value of the premises of complainants is materially lc-ss by reason of the maintenance of said stable.

The premises and the building occupied by the defendant as aforesaid were occupied for the purposes of a stable in which horses were kept at and prior to the time when the building owned by complainants was erected.

Applying the law to the facts thus found, the decree proceeds :

“Because of the fact that the premises occupied by the defendant as aforesaid were used for stable purposes at and before the time the building owned by complainants was erected and before the property upon which it was erected was used for dwelling purposes, the court finds that the complainants are not entitled to restrain the defendant from maintaining a stable for the purpose of keeping horses upon the premises occupied by the defendant, but are entitled to have the stable kept in the best and most sanitary manner possible, and the court doth find that the complainants are entitled to have an injunction restraining the defendant from permitting manure to accumulate upon said premises and said manure must be continually removed, at least once a week, and no manure kept without the building of the defendant, and to restrain the defendant from permitting obscene or profane language to be used upon said premises, and to restrain talking or shouting so loud that such talking will unnecessarily disturb the occupants of the building owned by the complainants as aforesaid.”

The ordering part of the decree is as follows:

“It is therefore ordered, adjudged and decreed, that the defendant, his servants and agents, be and they are hereby perpetually enjoined and restrained from permitting to accumulate upon the property of the defendant, being lots 95 to 96,” etc. (describing the premises as above), “manure, and shall continually remove the same as aforesaid,—and from conducting a stable upon the said premises of the defendant in any manner that Avill create unsanitary conditions in the property of complainants above described beyond what is absolutely necessary, and the defendants and his servants and agents are perpetually enjoined and restrained from using or permitting to be used upon said property of the defendant profane or obscene language or talking or shouting so loud as to disturb the peace and quiet of the occupants or any occupant of the building so owned by the complainants as aforesaid.” The defendant is then ordered to pay the costs of the proceedings.

The complainants—appellants—have assigned these errors in this decree:

First. That it Avas error to find and decree that because the premises occupied by defendant were used for stable purposes before complainants’ building was built or the property on which it stands Avas used for dAvelling purposes, complainants are not entitled to have defendant restrained from maintaining a stable for the purpose of keeing horses upon said premises occupied by defendant.

Second. That it was error not to enjoin and restrain the defendant from maintaining or permitting upon his property a stable for horses in such a way as to produce noise sufficient to disturb the sleép or comfort of the dwellers in the building owned by complainants, or so as to produce odors or gases deleterious to the health or comfort of the dwellers in complainants’ building.

Third. That it was error not to enjoin perpetually the defendant from maintaining a stable on property adjoining complainants’ building.

Fourth. That it was error not to enjoin the defendant from maintaining between his stable and the curb of the street in front thereof an obstruction to the sidewalk consisting of a driveway, the surface of Avhich is elevated above the level of the sidewalk to a height above said level of eight inches to one and one-half feet.

The defendant—the appellee—has assigned these cross-errors :

First, second and fourth. The court erred in entering any decree in favor of appellants and against appellee, and not dismissing the bill for want of equity.

Third. The court erred in decreeing costs against the appellee.

Fifth. The court erred in finding that by reason of odors and language and loud talking the stable conducted by apipellee in the manner it was conducted at the time of the filing of the bill, constituted a nuisance.

Sixth. The court erred in enjoining appellee from permitting manure to accumulate upon his property and from conducting a stable upon his premises in any manner that will create unsanitary conditions in appellants’ property beyond what is absolutely necessary, and from using or permitting to be used upon Ms property profane or obscene language or talking or shouting so loud as to disturb the peace and quiet of the occupants of the appellants’ building.

Seventh. The decree is too uncertain and indefinite.

We think that the seventh cross-error is well assigned, and that the decree would have to be reversed on it alone, were there no other reason for it. To provide that the defendant and Ms servants and agents shall be enjoined from talking or shouting on their own premises so loud as to disturb the peace and quiet of any occupant of the complainants’ adjoining building is in itself to make an injunction exceedingly provocative of further dispute; to couple that with a prohibition of the defendant’s conducting a stable upon his premises in any manner that will create unsanitary conditions in the complainants’ building beyond what is absolutely necessary, is to lay the foundation for inevitable future litigation, in which the issues will be likely to be tried on unsatisfactory ex parte affidavit testimony, in contempt proceedings.

Thus in this private dispute, that extraordinary power of the court will be invoked which Judge Breese well said, in Stuart v. People, 3 Scammon, 392, more than half a century ago, is “not a jewel of the court to be admired and prized, but a rod rather, most potent when rarely used.” Such a result ought not to be the effect of an injunction. An injunction should he as definite, clear and precise in terms as is possible, in order that there may be no excuse or reason for misunderstanding or disobeying’ it.

It must he admitted, however, that there was and is a serious difficulty in the present case in so framing a decree as to do justice between the parties and at the same time to secure this precision and definiteness which should be characteristic of an injunction. We have felt this difficulty, and without doubt the trial court felt it in the same manner.

After a full consideration of the evidence, we think the findings of the court purporting to embody the facts fully sustained.

We think it is proven that the accumulated manure on the defendant’s premises emitted not only offensive but “noxious” odors affecting the atmosphere in the complainants’ building. We do not, nor did the court below we think, use the term noxious as synonymous merely with “noisome,” but in its primary and etymological signification of injurious to health. We think it also proven that the' noise accompanying the transaction of the defendant’s business in this stable, as he conducted it, and necessarily accompanying indeed the mere keeping of so many horses as he did keep there, habitually disturbed the comfort and sleep of the occupants of complainants’ building; that the two things combined, and each of them separately indeed, constituted a nuisance, and that by reason of them the rental value of the complainants’ premises was materially reduced.

This, in our opinion, furnished a sufficient ground for the interference of a court of equity by injunction to abate the continuing nuisance.

Much has been said in the arguments of counsel as to whether or not equity will interfere by injunction until a jury at law has found the nuisance to exist, and many authorities cited and distinguished. But on this point the Supreme Court of Illinois has stated the law of Illinois with precision. In Nelson v. Milligan, 151 Ill., 462, p. 466, the court said: “All the authorities agree that the restraining power of courts of equity by injunction may be invoked by a private individual to prevent a special injury by the erection or continuance of a nuisance. But it is equally well settled that the jurisdiction is always reluctantly exercised until the nuisance has been found to exist by a jury, and never unless both the nuisance and the resulting injury are cleai'ly shown by the evidence." To these propositions many authorities are cited by the court. Minke v. Hopeman, 87 Ill., 450, lays down the same rule.

In this case, as we have indicated, we think the condition is fulfilled, and that both the nuisance and the injury and their continuity as well are proved by the evidence.

Our view that the law of Illinois has been definitely declared on this subject by the Supreme Court of Illinois, renders unnecessary a discussion of the cases in other jurisdictions and an attempt to distinguish and discriminate between them. There are many in point, and the whole subject, with copious citations, is discussed in the third division of chapter 13 of High on Injunctions.

It is urged, however, that even if a court of equity would have the right and duty to interfere by injunction in a case where the nuisance came to the dwelling, no such right or duty exist where the dwelling came to the nuisance.

This consideration is undoubtedly of great- force in cases like the present, where the nuisance arises from the exercise of a perfectly legitimate calling, which was no nuisance to anybody before the dwelling, whose occupants complain, was huilt.

The language of Judge Agnew in the Supreme Court of Pennsylvania, in a case where the nuisance came to the dwelling—“A court exercising the power of a chancellor, whose arm may fall with crushing force upon the every day business of men, destroying lawful means of support and diverting property from legitimate uses, cannot approach such cases as this with too much caution. Its aid is not of right, but of grace, and it must be sure that the exercise of this kingly power is just, wise and proper before it takes from a citizen his means of livelihood and destroys the value of his property for legitimate uses” (Huckenstine’s Appeal, 70 Pa. St., 102), is even more forceful as reminding a court of its responsibility, when applied to a case like the present, where the defendant was engaged in a lawful' business on his lot before the complainant so improved his lot as to make himself a person to whom that lawful business of his neighbor was a nuisance.

The appellants indeed claim that in the present case the appellants did not come to the nuisance, and call the defendant’s claim to the contrary a “subterfuge.” It is true that the appellee himself did not come into occupancy of the stable property until after the appellants had purchased their flat building, and that changes were made by him in the arrangement of the building and in the place and method of stabling horses after his first entrance into his lease. It is true also that for some time before he went into possession of the premises for the purpose of stabling his horses used in the newspaper carrying business, a part of them had been used for purposes other than those of a stable and the number of horses kept there had apparently been small; but the building was built for a stable for persons engaged in the teaming business, and was occupied by as large a number of horses at least when the complainants’ building was erected as when the bill in this case was filed. We think, therefore, that the court below was substantially right in treating the matter in its decree as one between a dwelling house owner and a stable owner who was in possession before the dwelling house was built. Levy was first a lessee, who stood practically in the shoes of the man who had built the place. He occupied it for substantially the same purpose, which was the very apparent purpose of its construction. Then he bought it before this bill was filed.

But when the nuisance is clearly proven to exist, as we think in this case it is, is the priority of occupation a controlling or, in the strict sense, a material circumstance ?

Undoubtedly, to judge from the authorities, it was formerly often, although not always, so considered. (Bispham’s Principles of Equity, section 442.) The question involved is an interesting and delicate one. Should pioneers in any direction on the outskirts of a growing city or in its purely manufacturing and business quarters, be entitled to hold in its place, against the changing conditions of the neighborhood, a business legitimate in itself, but injurious and hurtful to residences and their occupants? This question seems to be answered for Illinois, so far as a judicial dictum can answer it, by the language of Judge Magruder, speaking for the Supreme Court in Laflin & Rand Powder Co. v. Tearney, 131 Ill., 322, in the following words: “Carrying on an offensive trade for any number of years in a place remote from buildings and public roads does not entitle the owner to continue it in the same place after houses have been built and roads have been laid -out in the neighborhood, to the occupants of which and the travellers upon which it is a nuisance. As the city extends, such nuisances should be removed to the vacant ground beyond the immediate neighborhood of the residence of the citizens. This, public policy as well as the health and comfort of the population of the city demand.” This seems also to be the doctrine laid down in other jurisdictions in such cases as Campbell v. Seaman, 63 N. Y., 558; Van Fossen v. Clark, 113 Iowa, 86; Susquehanna Fertilizer Co. v. Malone, 73 Maryland, 268; King v. Morris & Essex Railroad Company, 18 N. J. Eq., 397, and many others, which cases are the probable justification for the assertions of text writers that “the doctrine of coming to a nuisance is now exploded,” and that the most recent authorities hold that the fact that complainant came to such a nuisance is immaterial and will not prevent the issuance of an injunction. Bispham’s Principles of Equity, section 442; Joyce on Nuisances, section 49.

It may easily be conceived that the rights of the parties carrying on a legitimate business, which would be nevertheless a nuisance in a residence district-, and of persons who wished to establish a residence in some particular locality, might under some circumstances be very different from the ones in the mind of writers who conceive of the residence use of property as always the higher use. Legally we take it, for the purposes of a discussion like this, the higher use must always be considered that which is economically the more profitable. The principle which would allow an injunction in favor of one who came with a residence to a nuisance of such a character in a locality where that highest and most profitable use of the land was for residences, would not justify such an injunction in favor of a person who undertook to build a residence and demand such an injunction in a locality where the highest and most profitable economic use for the land in that vicinity was for trades and callings which could not be made inoffensive or even harmless to resident householders. We are laying down, therefore, no universal rule that an injunction will always issue in favor of a householder either prior or subsequent in such holding to a neighbor in an offensive business.

To a certain extent the change in values of certain pieces of land works automatically the change in the characteristics of tire neighborhood, but cases, such as the one at bar seems to present to us, occur where the changes in a populous city make it clear, as the court in the Tearney case (supra) indicates, that public policy and individual health and comfort demand that the courts should so enforce the old maxim "Sic utere tuo ut alienum non laedas” as to require the removal of a business per se entirely legitimate from a neighborhood where it had been in entire good faith and legally established; and this notwithstanding the forceful warning of Judge Agnew in Huckenstine’s Appeal (supra), which we have before quoted.

In the present case it seems evident from the record that the neighborhood of the contending parties has become and is becoming more completely a thickly settled residence locality, especially used for apartment houses and small flats, often occupied by physicians and dentists and medical and dental students, attracted by the hospitals in the vicinity.

That the keeping of such a stable and transacting such a business as the defendant transacts must be noxious and offensive and a nuisance to such adjoining residences, reducing the value of the property, seems in this record to be proven not only by the complainants, but by the defendant’s witnesses; for example, the witness Jones (Rec. 225) and the witness Biggis (Rec. 233).

The deduction made by the appellants from this situation is, as shown in their assignment of errors, that defendant should be perpetually restrained from maintaining any stable on the premises occupied by him.

To this extent we are not prepared to go, although we find it very difficult" to determine where the exact line between the permissible and the prohibited should be drawn. This is undoubtedly the difficulty which the court below felt, and which the decree fails, as we think, satisfactorily to solve because of its vagueness and indefiniteness, and because, as we are convinced, it does not go so far as the law and justice require.

Although the injunction which we feel ourselves compelled to order may practically amount to a prohibition of the defendant’s continuing his business at his present stand, by enforcing conditions impossible of fulfilment in the conduct of that business, yet theoretically at least it must stop short of forbidding a stable altogether, for it is possible that a man might have a stable on said property and keep but one or two horses for business or pleasure, and although his neighbor might wish it away, he would have no ground to claim it to be a nuisance which should be abated. We do not desire to establish a precedent for neighborhood quarrels and capricious complaints to the court on slight causes.

As the Supreme Court of New York said in Filson v. Crawford, 5 New York Supplement, 882, “While a stable like a tenement house or factory, may be objectionable and seriously injure the value of other property, many stables are undoubtedly .kept in large cities in such a manner that they cannot be regarded in law as nuisances.”

The injunction, as that eminent Master of the Rolls, Sir George Jessel, pointed out in a similar case—Broder v. Saillard, The Law Reports, 2 Chancery Division, 692—should be directed against the defendant’s occasioning by his stable any nuisance to the complainants or the occupants of their house. This was undoubtedly the purpose of the chancellor in this case, but, as we have said, we do not think the injunction went far enough or was precise enough.

We shall therefore reverse the decree and remand the cause to the Superior Court/with directions to enter a decree perpetually enjoining the defendant from maintaining or permitting to be maintained on the property of the defendant described as lots 95 and 96 in Potter Palmer’s resubdivision of block eleven and that part of block twelve lying south of Polk street of Codweiss’s subdivision in the west half of the south quarter of section eighteen, township thirty-nine, north range fourteen east of the third principal meridian, in Cook County, Illinois, a stable for horses in such numbers or in such a manner as to produce noise sufficient habitually to disturb the sleep or comfort of the dwellers in the building owned by complainants on lots 91 to 94 in said resubdivision, or as to produce odors or gases deleterious to the health or comfort of the dwellers in said building, or so to conduct business on said premises as to cause by the noise and loud talking incident thereto habitual disturbance to the health, sleep or comfort of said dwellers.

It is urged by appellants that the injunction just granted in favor of complainants ought to include a prohibition of the maintenance by the defendant of the inclined driveway from the stable to the street, obstructing the sidewalk. This driveway is without doubt a public nuisance such as the Branch Appellate Court of this District in Chicago Cold Storage Warehouse Co. v. The People, 127 Ill. App., 179, and the Supreme Court in the same case, 224 Ill., 287, said should be abated at the suit of the People, even though the city council had undertaken to authorize it.

Appellants claim that they are directly and injuriously affected, and indeed specially and peculiarly injured beyond the general public by the obstruction on account of the proximity of their building to it, and cite such cases as Green v. Oakes, 17 Ill., 249; Craig v. People, 47 Ill., 487; Snell v. Buresch, 123 Ill., 151, and the late case of Nelson v. Randolph, 222 Ill., 531, to sustain the contention. In the last case the court seems to cite the former cases to the point that an obstruction of the public highway at the suit of an individual who is directly and injuriously affected, may be enjoined without the showing of a special and peculiar injury which is not common to all the public; but proceeds to decide the case on the ground that such a special and peculiar injury had been averred.

But there are cases which seem to hold that to give any individual an action against the maker of an obstruction in a public street, there must be a direct physical disturbance of a right enjoyed by the complainant in connection with his property, and a special damage with respect to his property in excess of that sustained by the public generally.

The principles enunciated in these cases make it seem doubtful to us whether an injunction in favor of complainants in this case against this obstruction would be proper. The appellants should take other means to secure its removal if they desire it. They have made no specific prayer for relief against it in their bill; they allowed it as an obstruction, before it was changed from wood to cement, to remain uncomplained of for five years after they bought their property. We do not think we should include an injunction against it in our directions.

The decree is reversed and the cause remanded with directions hereinbefore indicated.

Reversed and remanded with directions.


text:
    Illinois Commercial Men’s Association v. Florence Tinsman.
    Gen. No. 13,619.
    1. Life insurance—when “due diligence" clause not violated. Held, under the evidence in this case, that it was for the jury to determine whether the insured at the time of his death was “in the exercise of due diligence” for his self-protection, and that there appeared no reason for interfering with the jury’s verdict on that question.
    2. Life insurance—effect of “due diligence” clause. The following excerpt applied by a Massachusetts court to a clause similar to that involved in this case, is quoted with approval:
    “The phrase is very general and certainly it does not mean that the assured must guarantee himself against accidents; nor do we think it means that he shall not recover for any accident to which some want of care on his part may have contributed. He is not required to use all possible diligence, but only all due diligence. The due diligence or care is sometimes said to be the ordinary care of prudent persons. It is not a precise term, but a relative one. In an accident policy it would not be reasonable to hold that this clause requires of the assured a higher degree of diligence than prudent persons are accustomed habitually to use. Under such a construction few persons would care to have an accident policy. The due diligence required is not inconsistent with inadvertence nor with running such risks as prudent and cautious persons habitually run, and upon the evidence the act of the deceased was not necessarily to be deemed a violation of this provision.”
    3. Life insurance—test as to whether “due diligence” clause has been observed. Whether the insured has observed the “due diligence” clause of an accident life insurance policy is to be determined from a consideration of all the circumstances, surroundings and obvious conditions which go to show that he must in the exercise of ordinary prudence have appreciated or on the other hand might reasonably not have appreciated the danger which confronted him at the time of the accident which resulted in his death.
    Assumpsit. Appeal from the Superior Court of Cook County; the Hon. Robert W. Weight, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed March 9, 1908.
    Statement by the Court. This is an appeal from a judgment of the Superior Court of Cook county, in favor of the appellee, who was plaintiff below, against the appellant, who ivas defendant below, for $5,540.41.
    The judgment was in an action on an accident insurance policy issued by the defendant, the essential parts of which were as follows:
    “In consideration of, etc., * * * The Illinois Commercial Hen’s Association does hereby receive * * * Frederick W. Tinsman * * * as a member of said Association, and upon the further consideration and upon the condition of the payment, etc., * * * there shall be payable to said member in the case of an accidental injury not resulting in death and within ninety days after the receipt by said Association of satisfactory proof of the happening of such injury, the sum, etc. * * *; and in the case of the accidental death of said member there shall be payable to Miss Florence Tinsman, sister, of Chicago, Ill., if living at the time of such accidental death, otherwise to the legal representative of said member within ninety days after the receipt by said- Association of satisfactory proof of the happening of said accidental death the sum of $5,000. And any and all such payment or liability to pay shall be and is in accordance with and subject to each and all of the provisions of the by-laws of said Association and of the provisions of any and all amendments, alterations and new issues of said by-laws, which said by-laws are hereby referred to and made a part hereof as fully as if they were recited at length over the signatures hereto affixed, * * * and the said Frederick W. Tinsman hereby and by the acceptance hereof agrees to abide and be bound by said by-laws and each of them, and by any and all lawful amendments, alterations and new issues thereof, or of any of them * * * this 19th day of March, 1904.
    Geo. W. Smith,
    President.”
    Section eight of article 1 of the by-laws of the Association was partly as follows:
    “This Association shall not be liable to any person for any indemnity for injuries or death or loss of limb or of eye resulting from an accident to a member which happens wffiile said member was violating any law, was not in the exercise of due diligence for his self-protection; or was in any degree under the influence of intoxicating liquors. "x" * "x"”
    Frederick W. Tinsman lost his life by drowning May 15, 1904, while attempting with three other persons to cross the Truekee river in Nevada, on a trolley-cable ferry, as hereinafter in the opinion described.

      The defendant company refused to pay to the plaintiff, Florence Tinsman, the five thousand dollars stipulated in the policy as the death indemnity, and she brought suit. The company pleaded the general issue and two special pleas. These special pleas set up article 7 of section 8 of the bylaws of the company before quoted, and alleged that Frederick W. Tinsman was not in the exercise of due diligence for his self-protection at the time of the accident. The first special plea specified his default to be that he attempted “to cross a certain running stream of water by means of an unsafe and dangerous appliance or unsafe and dangerous appliances, and that the unsafe and dangerous condition of said appliance or appliances was known to said Tinsman, or might ■have been known to him by the exercise of ordinary care and caution for his safety and well being.”
    The specification of the second special plea was that “he attempted to cross a certain running stream of water known as the Truckee river, by means of a certain appliance or car attached to a cable, when the water was high and the current swift and it was dangerous and unsafe for any person to cross said stream in such manner at the time, and that the danger was known to Frederick W. Tinsman, or might have been known by the exercise of care and caution for his own safety.”
    The cause was submitted to a jury. All the material facts were stipulated except the details of the manner in which the insured met his death and the surrounding circumstances tending, in the opinion of the parties, to throw light on the question whether or not he was in the exercise of due diligence for his self-protection at the time of the accident. Testimony as to such details and circumstances was offered by both parties in the form of depositions by persons residing in the vicinity of the place where the accident happened, or who were there present on the occasion of it. Different but not materially differing depositions of the same persons were offered by the parties respectively.
    At the -close of the plaintiff’s testimony and again at the close of all the testimony, the defendant asked for a peremptory instruction, which was refused.
    The trial judge gave to the jury three instructions at the instance of the plaintiff and thirteen at the instance of the defendant, but refused to give five which were asked by the defendant. The jury returned a verdict for $5,540.41, which was the amount of the insurance indemnity contract with interest at 5 per cent from the date of the prcecipe to the date of the verdict.
    A motion for a new trial and a motion in arrest of judgment were overruled by the court and judgment was given on the verdict. This appeal followed, and the assignments of error argued in this court attack the rulings of the tidal judge in refusing the peremptory instruction asked for, in giving the second and third of the instructions tendered by the plaintiff, in refusing each of the five refused instructions tendered by the defendant, in refusing to grant a new trial, and in entering judgment on the verdict.
    James Maher, for appellant.
    Douglas 0. Gregg, for appellee; Duncombe & Evans, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

The sole question presented by this record for us to decide, is whether we can say as a matter of law that the evidence shows that Frederick W. Tinsman was not “in the exercise of due diligence for his self-protection” at the time he met his death. If we cannot so say—if under the evidence it was a question of fact whether or not Tinsman was in the exercise of due care—then it was properly left to the jury to answer, and with that answer we find no reason to interfere on account of the rulings on instructions or otherwise. In other words, under the evidence in this case, we deem it apparent that if there were no error in refusing by peremptory instruction to take the cause from the jury, there was none in refusing to allow, on the ground that the verdict was against the preponderance of the evidence, the motion for a new trial. Nor do we think that the instructions under which the question went to the jury wrere erroneous, if the question was one for the jury. We will briefly advert to them after we have stated the facts as shown by the evidence.

Tinsman on May 15, 1904, was about thirty years old, unmarried, president of a trading business corporation of Chicago, of at least average intelligence and judgment, not given to recklessness in conduct, temperate in his habits, and not under the influence of stimulants at the time of the action which resulted in his death. He was, with a friend two or three years older, traveling in the West in the interests of the Chicago Art Company, of which he was president. They had left Chicago, March 23, 1904, and on May 15th were camped at Laughton Springs, Washoe County, ¡¡Nevada, about thirty yards from the Truckee river, on the north side thereof. The place appears to be an “amusment resort.” It is about five miles west of the city of ¡Reno. There are three hot springs there, and just east of the springs a grove used for picnic parties chiefly by the people of Reno. A Mr. Laughton had a residence and a barroom there, and there were farm and outbuildings there.

Mr. Dunlap, Tinsman’s friend, had carried out from Reno a tent and some camping supplies, and had been there some days ivhen Tinsman joined him. ‘ This was on Friday, May 13th. Dunlap and Tinsman were planning for a business trip in northern California, and expected to make it also a camping trip. For this they were intending, at this Laugh-ton Spring camp, to overhaul the camping, hunting and fishing utensils and remodel a wagon which they were to purchase at Reno. The stream, Avhich varied in size according to the melting of the snow in the mountains, but was normally six or seven feet deep, was about 200 feet wide at the time of the accident. There was no bridge across the river nearer than a mile and a half by the road, but at low stages of the water there was a feasible wagon ford near the place, about 600 feet from the camping ground of Tinsman and Dunlap; and at about the same place, for use when the river was above this low stage of water, the trolley cable ferry on which Tinsman made his fatal attempt to cross the river. Mr. Laughton, who owned the land about there and managed the “resort,” had a farm which lay on both sides of the river, and, as we understand his testimony, had up to twelve or thirteen years before, when the river was too high to be forded, used for ferriage a boat' attached to a wire cable stretching across the river. At that time, however, some change in the river formed a bar, and he altered the method of transportation (which was, as he says, only for the purpose of carrying the produce of his farm and the people who worked for him across the river) to a car strung between two wire cables. These wire cables were about 210 feet long. One was a %-inch and one a %-ineh cable. On one side of the river they seem to have been fastened by bolts drilled into a rock on the bank, on the other attached to wooden structures on the bank loaded down with stone. Each of these cables passed through a pulley at each end of one side of a car, which consisted of a platform about ten feet long and four feet wide, with cross-pieces—four by fours—at each end. Thus each cable passed through two pulleys on the respective sides of the car, and the car swung between the cables, which were four feet apart. The bottom of the car was, according to the evidence, from four to eight inches below the cables. Different witnesses made different statements about this measurement. At the banks of the river, when the river was at its normal height, the car was about six feet above the river. The method of its operation was to loosen it from its fastenings to the shore, to allow it to run by its own weight on the naturally sagging cables to a point midway between the banks, and then to pull it hand over hand up the slightly inclined cables to the opposite bank. At the middle of the river the car would still, in a normal or average state of the water, be at least three or four feet above it. A windlass arrangement on the north bank was attached to the cables to tighten them when they had loosened and sagged too much through warm weather or otherwise.

' The car has been thus used for twelve or thirteen years without serious accident, or mishap, as many as four and sometimes more people often passing over in it. The proprietor, Mr. Laughton, said that 100 pounds had often been carried on it and was a fair load for it. He also said that it was a safe method of crossing the river unless the water was too high, when he regarded it as unsafe. It would appear that although not primarily intended for the use of the public, or of anybody but Mr. Laughton’s family or employees, it was often used by other people, people fishing in the river, picnic visitors to the Springs, and the like; locks on it being sometimes broken to allow its use, and notices put up forbidding its use frequently being unheeded.

On the 15th day of May the Truekee river had been rising for two or three days. Just how great was the rise it is impossible to tell from the evidence, but it was evidently very considerable, although impressing different witnesses differently. Those living near and familiar with the river considered the rise remarkable, it would seem. Thus the proprietor of the resort, S. L. Laughton, swore the river was “as high as he ever saw it”—“running wilder than he ever saw it before or since.” He said on the following day it fell from six to eight inches. Again he says, “The water was low on the day before (May 14th) as compared with the water” on the 15th. “The river raised very rapidly—from four to six inches an hour.” So the undertaker at Reno says the river was running very high, that it was “higher than he had ever seen it.” Mr. Walton, a witness residing at Reno, says, “The river was very high, running very fast.” James D. Andrews, another resident of Reno, says, “The river was the highest I ever saw it.” On the other hand, Mr. Dunlap says that he saw persons crossing on the car three or four days prior to the accident, and to the question, “At the time you saw persons cross over that river in this car, which you have just referred to, what was the difference, if any, between the height and volume of the water in the river and that of the 15th of May,” he answered: “They were practically the same, possibly a little difference one way or the other.” On cross-examination he was asked, “While you were there was the. water in the stream always the same, or was it less in the morning than at night, or otherwise,” and answered: “Well, it probably varies according to the melting of the snow.”

“Q. Exactly ? A. Sometimes a few inches higher or lower.

Q. Tes. A. I did not observe that so much prior to the accident as I did afterwards.

Q. Exactly. A. But I ascertained by marking the stream that it would raise and lower according to the amount of snow melting in the mountains. * * *

Q. What was the condition of the river at this particular point where the cable crosses ? A. It was running smoothly under this car, and for perhaps 150 or 200 yards below the car and probably a like distance above the car.

Q. The water was not rough? A. No, sir.

Q. And turbulent ? A. It was not at that point that the car crosses.

Q,. Was it above or below ? A. Both above and below.

Q. But at this particular point you say it was smooth? A. It was smooth there—comparatively so—as a river can be through a mountainous country.”

Mr. Walton, a witness for both parties, says: “The river at that time was running very fast and it was very high. I noticed it, because by throwing a sticlc into the river—the dog—I had my dog with me—went out, and I came near losing m.y dog at the time because if he had got down below, he couldn’t have got out.”

We think there is no reason to doubt the good faith of any of these witnesses. As the event proved, the river was so high that it was dangerous to cross it in this car; but the fact that it was unusually or dangerously high or running unusually rapidly might well not have been obvious to persons unfamiliar with its average and normal flow and depth. It seems to have required a peculiar incident to call it especially to Hr. Walton’s notice even, although he lived near it. This consideration we deem of some importance in the cause.

During the forenoon of Hay 15th two boys, and afterwards three, had crossed the river in the car. Mr. Walton, who saw them, thought the car touched the water in the passage, but no accident resulted, and it did not strike him as so dangerous but that the question of going over himself with his wife and friend in the car was mooted, and abandoned for other reasons, but apparently without consideration of its danger. Two hours later, between one and two o’clock in the afternoon, Tinsman met, near the bank where the car was fastened, a Hrs. Ede and a young man named Jacobs, and a young woman with him named McMillan, all of whom lived in Reno and were apparently visiting the Springs on a Sunday outing. What conversation occurred between them cannot be known, but a man named Morris, who was a ditch tender in the neighborhood and happened to be in the vicinity, saw them talking, and Tinsman untied the car and went on it with Mrs. Ede. The young man, Jacobs, followed, and, after some reluctance, Miss McMillan. The car ran down towards the middle of the river—the cables so sagged that in the then condition of the water the car struck the rapidly flowing current at some point between the shores (60 feet from the bank, the eyewitness Morris says at one place in his testimony, making it less in another; “midway” of the river, if S. L. Laughton’s deductions from the position of the broken car after the accident were correct), the car was broken, the people in it all swept out in the river, and despite frantic efforts by themselves to stem the current of the river, and attempts to save them made by people who saw them struggling, they were all drowned.

These facts were placed before the jury in the trial below, and it was left for them to say, under the instructions given to them by the court, whether Tinsman was “in the exercise of due diligence for his self-protection” when he lost his life. They were told that the mere fact that he lost his life in a manner which might have been avoided should not in itself be taken to prove that he was not in the exercise of due diligence for self-protection, but that “the exercise of due diligence for self-protection” meant such a degree of care for his self-protection, under the circumstances and in the situation in -which he was placed, as an ordinarily prudent man would exercise under like circumstances and in the same situation. They were also told that the burden of proof was on the plaintiff to establish the proposition that the insured was at the time of his death in the exercise of due diligence for his self-protection—a proposition of doubtful accuracy perhaps, but which certainly did not militate against the rights of the defendant.

Under these instructions the jury returned a verdict for the plaintiff. As we have before indicated, unless we are prepared to say that the peremptory instruction taking the case from the jury should have been allowed, we see no justification in the evidence for holding the verdict against its clear preponderance.

If it was for the jury to say whether the insured "was in the exercise of due diligence for his self-protection, we see nothing in an analysis of the evidence which forbade them to find that he was. That he -was not invited by the proprietor to use the trolley car, and that the proprietor did not ■wish strangers to unfasten or to use it, does not seem to us, in view of the circumstances of its frequent actual use, at all material. This is not an action against the proprietor. The question is simply whether a man of ordinary prudence would have necessarily deemed it dangerous to use the car that afternoon. With this question, we cannot see that the license or prohibition of the proprietor has anything to do.

The clause in question, “In the exercise of due diligence for self protection,” does not materially differ from the phrase which engaged the attention of the Supreme Judicial Court of Massachusetts in Keene, Admx., v. New England Mutual Accident Association, 161 Mass., 149. There the policy required the insured “to use due diligence for personal safety and protection,” and, reversing a decision by the Superior Court, which was that under the circumstances of that case it could be held as a matter of law that the condition had not been complied with, the Supreme Court of Massachusetts said the question was for a jury, and used these words—very applicable, we think, notwithstanding the very different facts involved, to the case at bar: “The phrase is very general and certainly it does not mean that the assured must guarantee himself against accidents; nor do we think it means that he shall not recover for any accident to which some want of care on his part may have contributed. He is not required to use all possible diligence, but only all due diligence. Due diligence or care is sometimes said to be the ordinary care of prudent persons. It is not a precise term, but a relative one. In an accident policy it would not be reasonable to hold that this clause requires of the assured a higher degree of diligence than prudent persons are accustomed habitually to use. Under such a construction few persons would care to have an accident policy. The due diligence required is not inconsistent with inadvertence nor with running such risks as prudent and cautious persons habitually run, and upon the evidence the act of the deceased was not necessarily to be deemed a violation of this provision.”

In a case involving a different provision in a policy, as well as a very different state of facts, the Supreme Court of Pennsylvania also used language which states a principle of general application to cases like the present, which well expresses our views: “A clear distinction exists between a voluntary act and a voluntary exposure to danger. Hidden dangers may exist, yet an exposure thereto, without any knowledge of the danger, does not constitute a voluntary exposure to it. * * * The result of the act does not necessarily determine the motive which prompted the action; the act may be voluntary, yet the exposure involuntary. The danger being unknown, the injury is accidental.” Burkhard v. Travellers Insurance Company, 102 Pa. St., 262.

In the present case the danger certainly existed—the event proved it—but that the insured “in the exercise of due diligence for his own protection”—that is, acting as any ordinarily prudent man would have acted under the same circumstances •—would have avoided it, is an entirely different proposition. Whether it is true depends on all the circumstances and surroundings and obvious conditions which go to show that he must, in the exercise of ordinary prudence, have appreciated, or, on the other hand, might reasonably not have appreciated, the danger. These circumstances, surroundings and conditions being placed before the jury by the evidence, it was for them to answer the question involved. No better criterion for such a determination than the common sense of the average man can be found.

Among these circumstances and conditions placed before the jury, and well illustrating the factors which might properly determine their verdict, was the alleged conversation between S. A. Laughton, Tinsman and Dunlap, on the morning of the accident, in "which Laughton says he “told them it Avas hardly safe for a person to cross, the water Avas so high.” Dunlap positively denied that such a remark Avas made. It Avas for the jury to decide Avhether or not such a remark was made in Tinsman’s hearing.

Appellant complains, hoAvever, that two of the instructions given Avere erroneous, and that the refusal to give seATeral tendered by it was unAvarranted. We haA'e carefully considered all the instructions tendered, and we think that the jury Avere instructed more favorably to the defendant than was entirely justifiable. Besides the doubtful accuracy of the instruction concerning the burden of proof, the third instruction given for the plaintiff, if taken by the letter, makes a verdict for the plaintiff dependent on the belief of the jury that any other reasonably prudent man under the same circumstances would have attempted to cross the river, etc.—manifestly, it seems to us, a less precise statement of the law, taking Avords in their common meaning, than if it had said that they must believe that other reasonably prudent men might have so attempted to cross the river, etc. It is the use of the word “might” in the first half of the instruction of AA’hich appellant complains; but this word is used only in the clause Avhich tells the jury Avhat they may consider, not in that Avhich states on what their verdict must depend. The instruction might have been better worded, but Ave do not thing it erroneous. It could not but be construed by the more precise language of instructions 6 and 10, given for the defendant, which fully and accurately state the law; and it could not, we think, have misled the jury.

There is nothing in the other objections to the rulings on instructions which needs discussion. The second instruction given for the plaintiff could not have been in reason understood by the jury, as counsel contends it might have been, to refer to Tinsman’s struggles in the water.

The first four of the five refused instructions are plainly covered by instructions which were given, and the fifth, as it appears in the record, plainly should not have been given. There was clearly some clerical error in drafting or transcribing it.

The judgment of the Superior Court is affirmed.

Affirmed.