text:
    Allie T. Fairchild, Appellee, v. The Maccabees, Appellant.
    1. Insubance—when by-laws of other society govern as to benefit payable in case of suicide upon -merger of societies. Where an application for benefit insurance in a society organized under the laws of another State provides that the application and the laws of the society then in force or that thereafter shall be adopted, together with his certificate of membership, shall constitute the contract of insurance, and the society is merged with another society, pursuant to the laws of such State, under a written contract providing that the consolidated association shall be subject in all respects to the laws of such last society then in force or that thereafter might be adopted, the by-laws of the latter society relative to the amount of benefits to be paid in case of suicide govern, where a member of the first society commits suicide after the merger, even though they may materially reduce the amount of recovery.
    2. Insubance—what constitutes ratification of contract of merger of benefit societies. The acceptance of an office in a subordinate lodge of a benefit society, consisting of two merged benefit societies, by a member of one of the merging societies constitutes a ratification of the contract of merger.
    3. Insurance, § 747

      —when provision in application for benefit insurance that applicant bound by subsequently enacted by-laws valid. A provision in an application for benefit insurance that the applicant shall be bound by the by-laws of the society then in force or thereafter adopted is valid and binding, even though it may materially reduce the amount recoverable.
    Appeal from the Circuit Court of Bond county; the Hon. J„ F. Giixham, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded with directions.
    Opinion filed April 17, 1916.
    Busby, Weber, Miller & Robinson and Arthur J. Donovan, for appellant; D. D. Aitken, of counsel.
    Cook & Meyer, for appellee.

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

   Mr. Justice Boggs

delivered the opinion of the court.

This was an action in assumpsit brought by appellee as the beneficiary named in two benefit certificates issued by the Knights of the Modern Maccabees, a Michigan fraternal benefit society, to Homer L. Fair-child, her husband, since deceased.

The declaration consists of three special counts and the common counts. The first count is based on both benefit certificates, each providing for payment of $1,000 upon the death of said Homer L. Fairchild, the first one being dated April 22, 1908, and the second, June 9, 1911. Bach of these benefit certificates contained a provision that the laws of the association then .in force, or that might thereafter be adopted, should be a part of the contract, and also, that payment of the benefits would be made, “provided * * * he shall have in every particular complied with the laws of the association now in force or that may hereafter be adopted”; that after the issuing and delivery of said benefit certificates, and before the death of said Fairchild, the Knights of the Modern Maccabees consolidated with the Knights of the Maccabees of the World, a fraternal insurance company, the latter absorbing the former and assuming the certificate obligations thereof; that the Knights of the Maccabees of the World changed its name to “The Maccabees.”

The second and third counts differ from the first only in that the second proceeds on the first certificate and the third proceeds on the second certificate. Appellant filed the general issue.

The facts in the case were stipulated, a jury was waived and the cause submitted to the court. The stipulated facts may be briefly stated as follows: The Knights of the Modérn Maccabees prior to the merger and the Knights of the Maccabees of the World were both fraternal benefit societies, incorporated under the general laws of Michigan. The supreme legislative and governing body of the Knights of the Modem Maccabees was known as the “Great Camp,” while that of the Knights of the Maceahees was known as the “Supreme Tent.”

Homer L. Fairchild applied for membership in the Knights of the Modern Maccabees on April 6, 1908, and his application contained the following language: “I hereby agree and warrant that the above answers to the foregoing questions are true as written and that these statements together with those made to the examining physician in this application and the laws of the Knights of the Modern Maccabees, now in force, or that may hereafter be adopted, together with my certificate of membership, shall form the basis of this contract for beneficial membership. I also agree that should I commit suicide in contravention of the laws of the' order, whether sane or insane at the time, that this contract shall be null and void, and of no binding force upon the society. This application and the laws of the society now in force or that may hereafter be adopted, together with my certificate of membership, are made the contract between myself and the society, and I, for myself and my beneficiary, agree to conform thereto and be governed thereby.”

Prior to the merger there was in force in the Knights of the Modem Maccabees a by-law known as section No. 92, which provided, among other things, as follows: “Where death results from suicide within five years after admission to benefit membership whether the member was sane or insane at the time of death, the beneficiary or beneficiaries of the member shall only be paid the amount of money which the member has paid into the benefit fund, which amount shall be the full amount that shall be claimed in any such case. ’ At the time of the merger, there was in effect in the Knights of the Maccabees of the World, a by-law known as section 379, as follows: “No benefit shall be paid on account of the death of a member who shall die by his own hand, whether sane or insane: provided, however, that the beneficiary named in the life benefit certificate or the person legally entitled to the benefit, shall receive an amount equal to twice the amount contributed to the life benefit fund by the member during his lifetime, but not in excess of the face of the certificate.”

In the year 1913 the Legislature of Michigan enacted a general law entitled: “An act to define what shall constitute fraternal beneficiary societies, order or associations; to provide for their incorporation and the regulation of their business, and for the punishment for violations of this act, and to repeal all existing acts or parts of acts inconsistent therewith.” Section 14 of said act provides among other things that: “No domestic society shall merge with or accept the transfer of the membership or funds of any other society, unless such merger or transfer is evidenced by a contract in writing, setting out in full the terms and conditions of such merger or transfer, and filed with the Commissioner of Insurance of this State, together with a sworn statement * * * by its president and secretary, or corresponding officers, * * * of the contracting societies, that such merger or transfer has been approved by a vote of two-thirds of the members of the supreme legislative or governing body of each of said societies.

“Upon the submission of said contract, * * * the Commissioner of Insurance shall examine the same, and, if he shall find * * * said contract to be in conformity with the provisions of this section, and that such merger or transfer is just and equitable to the members of each of said societies, he shall approve said merger or transfer, issue his certificate to that effect, and thereupon the said contract of merger or transfer shall be of full force and effect.”

A contract of merger was entered into, which provided among other things: “The consolidated association shall be governed by, and the membership thereof shall be subject to, in all respects, the laws of the Knights of the Maccabees of the World, now in force or that may hereafter from time to time be adopted. * * * In consideration of all the foregoing, the Knights of the Maccabees of the World shall assume all the outstanding benefit certificate obligations of the party of the second part, subject, to a compliance with its laws now in force or that may be hereafter adopted, and shall be entitled to receive all assets of said Knights of the Modern Maccabees.”

Said contract of merger was duly ratified by both of said societies according to their constitutions and bylaws and in compliance with the laws of Michigan. Said merger agreement, together with the necessary statement, certificates, etc., required by the statute were submitted to the insurance commissioner of the State of Michigan and were by him approved on August 31, 1914. Both societies were licensed to do business in Illinois before the merger and appellant has continued to be so licensed from thence hitherto.

Homer L. Fairchild died at Greenville, Illinois, on March 19, 1915, by his own act or hand. Appellee was the wife and is now the widow of said Homer L. Fair-child. Prior to and at the time of the merger in question, Homer L. Fairchild was an officer of Bancroft Tent, whose duty it was to receive assessments from its members and to transmit the same to the Great Record Keeper of the Knights of the Modern Maccabees. After the merger he continued as an officer of said tent with the same general duties and transmitted the assessments collected to the Supreme Record Keeper of appellant, and he continued in the performance of the duties of that office until his death.

It was stipulated that if the court should hold that appellee was entitled to recover from appellant on the basis of the by-law of the Knights of the Modern Maccabees, No. 92, aforesaid, the amount due from appellant should be the sum of $1,051.23, but if the court should hold that appellee was entitled to recover on the basis of the by-law of The Maccabees No. 379, aforesaid, the amount due from appellant should be the sum of $265.42.

The facts being settled by stipulation, the only matter in issue was the' question of law as to whether this claim should be settled on the basis of the suicide by-law of the Modem Maccabees or the suicide by-law of appellant. The court held the propositions of law submitted by appellee and refused those submitted by appellant, and rendered judgment against appellant for $1,051.23, from which judgment this appeal has been perfected.

The only question to be determined in this case under the propositions of law submitted to the trial court and the stipulation of facts agreed on by the parties is whether the merger of the Knights of the Modern Maccabees with the Knights of the Maccabees of the World had the effect of changing the by-law of the Knights of the Modern Maccabees in reference to the right of recovery under a certificate of insurance issued by it prior to the merger in case of suicide by the party holding the certificate, so as to make the right of recovery under said certificate governed by the bylaws in force in the Knights of the Maccabees of the World, now known as ‘‘ The Maccabees. ” It is insisted by appellee that to so hold would be in effect to change the contract of insurance held by Fairchild in the original society, and that this cannot be done. In order to determine whether the contention of appellee is the correct one or not, it will be necessary to refer to the application, the by-laws of the Knights of the Modern Maccabees, the contract of merger and the laws of the State of Michigan, governing fraternal insurance societies, in force at the time of the merger, so far as applicable, as they would all enter into the construction of the certificate of insurance issued to the insured. The application signed by Fairchild for insurance in the Knights of the Modern Maccabees, provided among other things: “I hereby agree that this application and the laws of the society now in force, or that may hereafter be adopted, together with my certificate of membership are made the contract between myself and the society, and I for myself and my beneficiary agree to conform thereto, and be governed thereby.” The benefit certificate issued to said insured referred to said application and the matters and things therein contained and made it a part of the certificate.

The statute of Michigan, by authority of which said merger was brought about, provided that no domestic society shall merge with or accept the transfer of the membership or funds of any other society unless such merger or transfer is evidenced by a contract in writing setting out in full the terms and conditions of such merger or transfer and be filed with the commissioner of insurance. In keeping with this provision of the statute a contract was entered into between the Knights of the Modern Maccabees and the Knights of the Maccabees of the World, whose name was after-wards changed to “The Maccabees,” which said contract provided among other things that the consolidated association shall be governed by and the membership thereof shall be subject to, in all respects, the laws of the Knights of the Maccabees of the World, now in force or that may hereafter from time to time be adopted.

The merger of these two societies was reported to the proper State authorities and such merger was duly ratified by said authorities as provided by the laws,of Michigan.

Our Supreme Court has held repeatedly that in fraternal insurance, such as is now being considered, a provision in the application to the effect that the applicant will be bound by the by-laws of the fraternal society then in force, or that may thereafter be in force, is valid and binding, and that it will be enforced as against the insured, even though it may materially reduce the amount recoverable by the beneficiary in the insurance certificate. Supreme Lodge Knights of Pythias v. Kutscher, 179 Ill. 340; Scow v. Royal League, 223 Ill. 32.

We do not understand that appellee takes the position that if the by-laws in the appellant society in reference to the recovery on the certificate of insurance, in case of suicide, had been passed by the Knights of the Modern Maccabees, from whom her husband received his certificate of insurance, that he would not have been bound thereby.

But the insistence of appellee is that inasmuch as the Knights of the Modern Maccabees was merged with the Knights of the Maccabees of the World, after her husband’s certificates of insurance had been issued to him, to hold that the insured or his beneficiary would be bound by a by-law which was different from the by-law in the original society would be to violate his contract of insurance. We do not think appellee’s contention tenable, for the reason that the laws of Michigan, which made possible both of these fraternal societies, provided for mergers of this character. The law provided that the merger should be evidenced by a written contract, and that such merger should be referred to certain State authorities, and if ratified by such State authorities it should then become binding. The procedure laid down by the laws of said State was followed in this case, and the merger was ratified. This being true, to hold that the insured Fairchild was, and appellee, his beneficiary, shall be bound by the by-laws in force in appellant’s society is but to carry out the contract made by said insured when he received his certificate of insurance, and it can have no other effect.

Appellee in this case is driven to this position. She is seeking to recover against appellant on certificates of insurance that were issued to her husband by the society known as the Knights of the Modern Maccabees. No recovery can be had in this case unless the merger above set forth was valid and binding, and if valid and binding in one part it must be valid and binding in all. Appellee cannot insist upon her right of recovery against appellant on a certificate of insurance not issued by appellant, but by another society, unless she is willing to concede that the society that issued the certificate was merged into the appellant society, and that by such merger the appellant society became obligated to take care of said certificates.

Under the laws of Michigan the manner of the merger must be fixed by contract in writing, and in order to ascertain what the rights of appellee as beneficiary under the certificate held by her husband are, you must look to the contract, and when you look to the contract you find by its terms that the insured and the beneficiaries are to be bound by the by-laws then in force and thereafter to be enacted in the transferee’s society, and it would seem that this is a complete answer to appellee’s contention.

It is also insisted by appellee that the provision in the contract of merger that the holders of certificates of insurance in the Knights of Modern Maccabees shall be bound by the by-laws then in force and thereafter from time to time adopted by the Knights of the Maccabees of the World, must be so construed as to give them a prospective and not a retrospective effect. In other words, appellee insists that this provision with reference to the holders of certificates in the original society should not be given effect as to certificates in force at the time of the merger. The answer to this is that Fairchild was living at the time of the merger and that this by-law was not given effect so far as the certificates held by him were concerned until he committed the act of suicide—an act subsequent to the merger.

In the case of Scow v. Royal League, supra, at page 35, the court says: “Plaintiff in error contends that the by-law in force at the time of his death, with reference to a member dying by his own act, did not apply to his certificate because adopted after it had been issued to him upon his becoming a member of defendant in error,—first, because it does not purport to be retrospective in its application; and second, if it did, it would be unreasonable and therefore void. It will be observed the by-law reads, ‘If any member shall die by his own act or hand,’ etc. There are no words expressly saying it should apply to those who had become members before the by-law was adopted nor limiting it to those who might become members afterward. The words used in the by-law should be given their usual and ordinary meaning and sense. In the sense in which ‘any’ is used in the by-law it is broad enough to embrace all members, and this without regard to the time they became such.” This same doctrine is held in Seitzinger v. Modern Woodmen, 204 Ill. 58, and in Supreme Lodge Knights of Pythias v. Kutscher, supra.

In construing applications and certificates issued in compliance therewith, of the character of those in question, so as to hold that the insured and beneficiaries under the policy are bound by by-laws- thereafter enacted, is simply to carry out the contract made by the applicant at the time he received his certificate. A party cannot claim the right to have a contract remain unaltered when the contract itself provides that it may be changed. (Baldwin v. Begley, 185 Ill. 188; Supreme Lodge Knights of Pythias v. Trebbe, 179 Ill. 348.)

It may be further observed in regard to the case at bar that Fairchild, the insured, after the merger, paid his assessments to appellant in accordance with such contract of merger without protest, up to the time of his death. He was an officer of his subordinate tent, whose duty it was to collect assessments from the members and forward the same to the supreme tent of appellant. In this capacity he was acting as the agent of appellant, the office held by him was known as “Record Keeper.” His duties as record keeper were different in many respects from his duties as finance keeper. His acceptance of this office under the by-laws of appellant, we think, was a clear recognition of those laws as being binding upon himself, and in our opinion he would be held to have acquiesced in and ratified the contract of merger. However, we do not base our opinion on that ground, as we believe that without reference to his ratification, he and his beneficiary would be bound by the by-laws of appellant in question.

We are therefore of the opinion that the court erred' in rendering the judgment that it did, and that the judgment should be reversed and that the cause should be remanded with directions to the trial court to enter judgment against appellant for the sum of $265.42, in compliance with the stipulation filed by the parties hereto in the trial court.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Boggs

license: Public Domain

text:
    Ira Gibbons, Appellee, v. Southern Illinois Railway & Power Company, Appellant.
    1. Steeet baileoads, § 32

      —what is measure of damages for flooding of land of abutting property owner due to construction of street railroad. The measure oí damages for the flooding of land of an abutting property owner due to the construction of a street railroad is the difference in the market value of the property in question before the construction and operation of the railroad and its market value after the construction and operation of the railroad, irrespective of any improvement the owner may have placed on the same after the construction of the railroad.

      2. Street railroads, § 32

      —when evidence as to expense of filling in land after construction of street railroad inadmissible in action for damages for flooding land. In an action against a street railroad company by-an abutting property owner to recover damages for the flooding of his land due to the construction of the railroad, evidence as to expenditures in filling up the premises of the plaintiff to keep off the water incurred subsequent to the construction of the railroad is inadmissible.
    3. Street railroads, § 32*—when instruction on consideration by jury of view of flooded premises of abutting property owner erroneous. In an action by an abutting property owner against a street railroad company for damages for flooding his land, alleged to be due to the construction of the railroad, held that an instruction that the jury in making up their verdict had the right to take into consideration the evidence and their view of the premises was prejudicially erroneous.
    4. Trial, § 41*—when jury may not take into consideration view of premises in making up verdict. The rule in condemnation proceedings that the jury may view the premises and take into consideration such view in making up their verdict has no application in an ordinary action by an abutting property owner against a street railroad company to recover damages for the flooding of his land due to the construction of the railroad.
    5. Street railroads, § 32*—when instruction on measure of damages for flooding of land by construction of railroad erroneous. In an action by an abutting property owner against a street railroad company for damages for the flooding of his property due to the construction of the railroad, held that an instruction on damages, which, although authorizing the jury to take into consideration the construction of the railroad, did not authorize them to take into consideration the operation of the railroad, was erroneous.
    6. Street railroads, § 32*—when operation of to be considered in estimating damages for flooding of land of abutting property owner. In an action by an abutting property owner against a street railroad company for damages for flooding of plaintiS’s land due to the construction of the railroad, the operation of the railroad as well as the construction thereof must be considered in estimating the damages.
    7. Instructions, § 70*—when instruction on damages erroneous as assuming facts.. In an action by an abutting property owner against a street railroad company for damages for the flooding of his property due to the construction of the railroad, an instruction on the measure of damages held erroneous as assuming that the property of plaintiff was damaged and depreciated by the railroad embankment.
    8. Instructions, § 13

      —•when properly refused. Instructions which are lengthy, argumentative, and tend to confuse the jury are properly refused.
    9. Instructions, § 7*—when accuracy necessary. Where the evidence is conflicting it is necessary that the instructions be accurate.
    Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 17, 1916.
    Marsh, Stilwell & Finney, for appellant.
    A. E. Somers and George M. Miley, for appellee.

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

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

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

   Mr. Justice Boggs

delivered the opinion of the court.

An action on the case was brought by appellee against appellant in the Circuit Court of Saline county, charging that the appellant had constructed and put in operation a traction line in the Village of Carrier Mills, on Jackson street fronting his property. Appellee contends that in the construction of said line of railroad along said street, no opening of any kind was provided under its line of railroad for the passage of water, and that this condition prevailed for about a year and a half prior to the bringing of this suit. The damages sought to be recovered by appellee are for alleged injury resulting to his property from interference to his drainage caused by the construction of said railroad.

The declaration contans three counts, each charging that prior to the construction of said traction line the water naturally drained off his premises in an easterly direction.

The first count charges that appellant maintained a certain permanent embankment along the east side of his premises without openings to permit the passage of water, and that by reason thereof large quantities of water which naturally flowed off said premises were obstructed and prevented from flowing off in its natural course.

The second count charges that the appellee has been forced to spend a large sum of money in hauling and depositing earth on the premises for the purpose of raising the surface of the said premises so as to make the same habitable and of use to him.

The third count charges that the embankment impedes what was, prior to the construction of the railroad, the natural flow of the water which naturally comes upon the lands lying adjacent to and in a northwesterly direction from his premises, and that the water is thereby dammed up upon the premises of the appellee. The damages were laid at $1,500.

To this declaration the general issue was filed. A trial was had resulting in a verdict and judgment for $150, from which judgment this appeal is prosecuted.

Numerous errors were assigned on the record. We shall consider but three: First, that the court erred in admitting evidence on behalf of appellee over objection of appellant; second, in giving improper instructions offered on behalf of appellee; and third, in modifying and in the refusal of instructions offered by appellant.

The evidence tended to show that appellee’s property was quite low, and that during heavy rains it frequently flooded, both before and after the construction of appellant’s railroad. Appellee was permitted, over objection of appellant, to introduce testimony to the effect that he had done certain filling on his lot at an expense of something like $150. This, in our opinion, was not proper, as appellee would not be entitled to recover for moneys expended for said purpose, and the evidence would have a tendency to confuse the minds of the jury on the measure of damages appellee would be entitled to, if any, on account of said alleged injury. In other words, it submitted to the jury an improper element of damages. The true measure of damages being the difference in the market value of the property in question before the construction and operation of the railroad in question and its market value after the construction and operation of said railroad, without reference to any improvement the owner of the property may have placed on the same after the construction of the railroad. Eberhart v. Chicago, M. & St. P. Ry. Co., 70 Ill. 347; City of Elgin v. Eaton, 83 Ill. 535; Chicago, M. & St. P. R. Co. v. Hall, 90 Ill. 45; Springer v. City of Chicago, 135 Ill. 552; Beidler v. Sanitary District, 211 Ill. 628.

Second, it is contended by appellant that the court erred in giving instructions five, six, seven, eight, nine and ten of the instructions given on behalf of appellee. The court in each of the instructions named, in substance, informed the jury that in making up their verdict they had the right to take into consideration the evidence and their view of the premises in making up their verdict. It seems, by agreement of the parties, the jury were allowed to view the premises of appellee during the trial of said cause. While in condemnation proceedings the statute authorized the jury to view the premises and to take into consideration the view of the premises along with the evidence in the case in making up their verdict, this rule does not apply in. common suits of this character, and the giving of these instructions for that reason was erroneous. Vane v. City of Evanston, 150 Ill. 616; Rich v. City of Chicago, 187 Ill. 396; Geohegan v. Union El. R. Co., 258 Ill. 352.

In Geohegan v. Union El. R. Co., supra, at page 357, the court says: “In condemnation cases the statute provides for a view upon the request of either party, and in such cases it has been held many times that the information derived from such view is to be regarded as evidence in the case. But this is an ordinary common law action, in which the purpose of the view is only to enable the jury to understand the physical situation and apply the evidence to it. (Citing Rich v. City of Chicago, 187 Ill. 396.) ”

. We would not regard the error in these instructions so serious were it not for the fact that the court repeated the same in six out of the ten instructions given on behalf of appellee, thereby strongly emphasizing the same. • In this connection, it might be said that in four of the instructions given on behalf of appellant the court modified the same by inserting as a matter to be taken into consideration in fixing the damages, the words, “and your view of the premises.”

Appellant complains of the seventh instruction given on behalf of appellee. The court instructed the jury that if they believe from the evidence and their view of the premises that the effect of the construction of the railroad embankment, as shown by the evidence, was to damage and depreciate the premises of plaintiff, that they should find the defendant guilty and assess the plaintiff’s damages. The objection to this instruction is that the jury in fixing the damages, if any, are to take into consideration, not only the construction of the railroad, but also its operation. In other words, appellant contends that the construction of the railroad alone might be a damage to appellee’s property, whereas the construction and operation of the same, taken together, might wholly eliminate the damages or might lessen the same, and that the jury should be instructed to take into consideration, not only the construction, but the operation as well. We think this point is well taken and that the contention of appellant is supported by the authorities. Metropolitan West Side El. Ry. Co. v. Stickney, 150 Ill. 362; City of Chicago v. Lonergan, 196 Ill. 525; Geohegan v. Union El. R. Co., 266 Ill. 482.

In Geohegan v. Union El. R. Co., supra, at page 497, the court in discussing this question says: “Appellants complain of the fifth instruction given on behalf of appellees. It told the jury that the action was brought for damages to the plaintiffs’ property arising from the ‘construction’ of the structure in the street for elevated railroad purposes. The erection of the structure, alone, may have been injurious, but the question was what was the combined effect of the construction and operation. Appellants claim that it was beneficial. ■ The total effect of the construction and operation of the railroad was the injury appellees had the right to complain of, if there was an injury. The instruction should not have confined the claim to the ‘construction’ only.”

It is further urged by appellant that instruction No. 7 is erroneous in this, that the court assumes that the property of appellee is shown by the evidence to be damaged and depreciated by the railroad embankment on Jackson street. We are inclined to think that this point is also well taken and that said instruction is subject to criticism in that regard.

Appellee’s third and fourth instructions are also subject to the criticism above made in reference to instruction seven, in that said instruction directs the attention of the jury -to the- damages that follow the construction of the railroad, instead of the construction and operation of the road in question.

Appellant contends that the court erred in refusing its first and ninth refused instructions. We have examined these instructions and are of the opinion that the court did not err in refusing the same, as both of said instructions are long and are argumentative, in form and would rather tend to confuse the jury than to enlighten them on the issues.

The evidence in this ease on the question of whether or not the property of appellee was damaged was conflicting. Several of the witnesses on the part of appellant testified that appellee’s property was not only not damaged, but was in fact benefited by the construetion and operation of the road. We express no opinion on the weight of the evidence or on the merits of the case. Inasmuch as the evidence is conflicting it is necessary that the instructions of the court be accurate. Illinois Cent. R. Co. v. Maffit, 67 Ill. 431; Chicago, B. & Q. R. Co. v. Warner, 108 Ill. 538; Belleville Pump & Skein Works v. Bender, 69 Ill. App. 189.

For the errors assigned the judgment of the trial court will be reversed and the cause remanded.

Reversed and remanded.


text:
    Village of Ramsey, Appellant, v. L. H. Hayes et al., Appellees.
    1. Appeal and ebrob, § 613

      —when question not raised on motion for new trial may not he raised on appeal. Where the question of the right to a new trial, because of the action of the attorney of the adverse party in insisting in propounding improper questions to the jurors in their examination after objections to the questions were sustained by the trial court, was not raised on the motion for new trial it cannot be raised on appeal.
    2. Appeal and ebrob, § 1502*—when action of counsel in insisting upon propounding improper questions to jurors in their examination harmless error. The action of the attorney of the adverse party in insisting in propounding improper questions to the jurors in their examination after objections to the questions were sustained by the trial court is harmless error where objections to such additional questions were sustained by the trial court.
    3. Municipal cobpoeations, § 868*—when recovery for only one violation of penal ordinance in single count allowed. Recovery can be had for only one violation of a penal ordinance in a single count, especially where the question is raised in apt time in the trial court by special demurrer.
    4. Pleading, § 25*—when count had for duplicity. Different causes of action should not be joined in the same count, but they should be separately stated.

      5. Municipal corporations, § 863

      —when each violation of ordinance separate cause of action. Each violation of a penal ordinance constitutes q separate cause of action and should be separately stated.
    6. Municipal corporations, § 866*—when fixing of amount of penalty for violation of ordinance for jury. The fixing of the amount of the penalty for the violation of a penal ordinance is peculiarly for the jury, and their action in fixing the penalty at the minimum will not be disturbed where they have been properly instructed.
    Appeal from the Circuit Court of Fayette county; the Hon. William B. Wright, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    Rehearing denied May 25, 1916.
    F. M. Guinn, for appellant.
    Albert & Albert, for appellees.

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

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

   Mr. Justice Boggs

delivered the opinion of the court.

An action of debt was brought by the Village of Bamsey, appellant, against T. J. and L. H. Hayes, appellees, in the Circuit Court of Fayette county, to recover the penalty for the alleged violation of a city ordinance of said city against the sale of intoxicating liquors in quantities of less than one gallon, without having a license therefor.

The declaration consisted of three counts. The first count after setting out that appellant is a municipal corporation, duly incorporated, etc., and after reciting the ordinance above referred to, charges that on the first day of January^ 1913, and bn each and every day from that time to the bringing of this suit, the defendants, T. J. Hayes and L. H. Hayes, did sell and give away intoxicating liquors to various persons within the corporate limits of the Village of Bamsey, contrary to the provisions of said ordinance. The second count is substantially the same as the first count except that it charges that appellees acted and confederated together in making sales. The third count is substantially the same as the first. A general and special demurrer was filed to the declarations. The special demurrer sets forth that each of said counts were bad for duplicity for the reason that they each set forth more than one cause of action. The demurrer was overruled. Pleas were filed and issue joined. The trial resulted in a verdict in favor of the appellant for sixty dollars. A motion for a new trial was made and overruled and judgment was rendered on the verdict, from which judgment this appeal is prosecuted.

Appellant insists that the judgment should be reversed, first, because appellee propounded improper questions to the jurors on their examination, second, that the verdict is against the manifest weight of the evidence, and third, that the court erred in giving appellee’s third, fourth and fifth instructions.

This suit was originally brought against T. J. and L. H. Hayes, but on the trial of said cause the same was dismissed as to the defendant, T. J. Hayes, and was prosecuted as to L. H. Hayes alone. It is insisted by appellant that the trial court should have granted a new trial for the reason that appellee insisted in propounding improper questions to the jurors in their examination after the objection had been sustained to the questions by the trial court. Appellant is not in a position to raise this question for the reason that it did not raise it on the motion for a new trial, and not having so raised it, he cannot now raise it here. It may be added, however, in every instance when the questions that it is now insisting are improper were propounded to the jurors by appellees and objection was made, the trial court sustained the objection, so we do not believe, even though the question were properly presented, that the irregularity was of sufficient consequence to require a reversal of the case.

It is next contended by appellant that the court should have granted a new trial for the reason that the verdict of the jury is against the manifest weight of the evidence. The evidence on the part of appellant tended to show that appellee, who was a physician practicing in the Village of Eamsey, sold intoxicating liquors to various persons contrary to the provisions of the ordinance in question. The evidence on the part of appellee tended to show that in his practice as a physician he was prescribing medicines containing, as their basis, diluted alcohol, and that the medicines as prescribed and sold by him were proper medicines to be administered in each particular case. Appellee, however, admitted that on at least two different occasions he, took orders for certain persons in said village for liquors which he purchased for and delivered to them, they paying him for the same. The penalty provided by said ordinance had as its minimum amount twenty dollars, and as its maximum amount one hundred dollars for each offense. The verdict rendered by the jury was for sixty dollars. Appellant contends that under the declaration filed in said - cause, the village was entitled to recover under each of said counts for as many sales as may have been made by said appellee in violation of said ordinance.

The contention of appellant raises the question as to whether recovery could be had under a single count for more than one violation of a penal ordinance. No authority directly in point has been cited by counsel for either the appellant or appellee, and we have been unable from the examination we have been able to make to find any authority in this State squarely in point. It is our opinion, however, that following the reasoning of the common law and of the law as laid down by the Supreme Court and Appellate Courts, that recovery can be had for only one violation of a penal ordinance in a single count. Especially do we believe this to be true where the specific point is raised in apt time in the trial court by special demurrer. Village of Hampton v. Chicago, M. & St. P. Ry. Co., 118 Ill. App. 621; Town of Whitehall v. Meaux, 8 Ill. App. 182; 5 Encyc. Pldg. and Prac. 307-327; 16 Encyc. Pldg. and Prac. 282.

In the Town of Whitehall v. Meaux, supra, the court at page 183 says: “We understand the law to be that each violation of the ordinance constitutes a separate cause of action, for which the plaintiff is entitled to recover not less than twenty-five nor more than one hundred dollars.”

In 16 Encyc. of Pldg. and Prac. 282, the author says: “Different causes of action must not be joined in the same count, but should be separately stated.”

It is lastly contended by appellant that the court erred in giving the third, fourth and fifth instructions given on behalf of appellee, but in view of what we have said with reference to the question of the right of the appellant to recover for only three separate offenses under its declaration, we do not deem it necessary for us to consider the objection urged by appellant to these instructions

Appellant seems to think that the jury should have fixed more than the minimum penalty for each offense for which the jury found the defendant guilty. However, the fixing of the amount of the penalty is peculiarly for the jury, and unless the court has by improper instructions misdirected the jury in that regard, their finding should not be disturbed.

Finding no reversible, error in this record the judgment of the trial court will be affirmed.

Judgment affirmed.


author: Mr. Justice McBride

text:
    Charles A. Bonner, Appellee, v. Milwaukee Mechanics’ Insurance Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Union county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Action by Charles A. Bonner, plaintiff, against Milwaukee Mechanics’ Insurance Company, defendant, to recover on a contract of fire insurance. From a judgment for plaintiff, defendant appeals.
    On May 11, 1908, at noon, defendant issued a policy of insurance to plaintiff, indemnifying plaintiff from loss or damage by fire for a period of five years, “to an amount not exceeding $750 on the following described property, while located and contained as described herein, and not elsewhere, to wit: $400 upon the one-story roof building and its additioiis, to be occupied as a dwelling house, situated, etc.; $100 on frame kitchen; $200 upon household and kitchen furniture and utensils, piano, etc., all while contained in the above house; $50 on frame barn.” At the time plaintiff procured this insurance he was not the owner of any piano and none was in the house insured, but the word “piano” was printed in a general term in the policy. On about April 20, 1910, plaintiff contracted with Fred P. Watson for a piano for which he was to pay $200, the title to remain in Watson until the piano was paid for. Nothing was paid upon the piano. At the time of the contract Watson required plaintiff to procure an insurance policy upon this piano for $350, which he did, but the policy was made payable to plaintiff. The piano was placed in plaintiff’s house. On November 26, 1912, about two o’clock in the morning, a fire occurred and the building and property of plaintiff, including the piano above described, were destroyed. Proofs show the loss on the building to have been $400, two trunks full of clothing $40, four suits of boys’ clothes $12, one lot of women’s dresses, skirts, etc., $25, one lot of men’s clothing $30. After the fire plaintiff made proofs of loss by such fire, including the items above specified, and forwarded the same to defendant. At about the same time plaintiff made proof of loss of the piano to the American National Insurance Company. Plaintiff afterwards instituted suit against the American National Insurance Company for the loss of the piano and when it was ascertained that he was not the owner of it, that the title was in Watson, the Company refused to pay and a compromise of the claim was effected.
    It further appeared from the evidence that the plaintiff was a cripple, had only one leg, that his family consisted at that time of himself and two small children, and that at the time of the fire he took his children and went to the stable and was caring for them and failed to save any of the articles of furniture. The defendant refused to pay plaintiff his claim or any part of it, for the reason that he procured insurance upon this piano, as claimed, in violation of the terms of his policy, that he made false statements in the making of his proofs of loss, and set the building on fire.
    The policy contained the following provision:
    “This entire policy shall be void * * * in case of any fraud or false swearing by the insured relating to this insurance or the subject thereof, whether before or after a loss.” .
    “The entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy * * *.”
    Abstract of the Decision.
    1. Insurance, § 668

      —when evidence insufficient to sustain finding that insured destroyed property and neglected to care for it. In an action to recover on a fire insurance policy for the loss of a house and contents, where it appeared that the fire happened at two o’clock in the morning, that plaintiff was a one-legged man and was engaged in looking after his family during the fire, evidence held insufficient to sustain a finding that insured destroyed his property and neglected to care for it.
    2. Evidence, § 366*—when evidence inadmissible as calling for conclusion of witness. In an action on a fire insurance policy where the ownership of a piano covered by another policy which was placed in the house subsequent to the date of the policy, was in dispute, the sustaining of an objection to evidence as to how long plaintiff had owned the piano, held not erroneous.
    3. Appeal and error, § 1474*—when question calling for conclusion of witness harmless error. In an action to recover on a fire insurance policy, where the ownership of a piano covered by another policy and which was placed in the building owned by plaintiff after the execution of the policy sued on, was in dispute, any error in asking plaintiff on cross-examination whether or not at the time the piano was insured the title was in him or in the seller, held harmless where the entire examination of the witness disclosed the fact that the piano was sold under a conditional sale contract.

      “This company shall not be liable for loss, etc., * * * or by neglect of the insured to use all reasonable means to save and preserve the property at and after a fire.”
    There was also another provision in the policy requiring the insured to give notice of loss, make a complete inventory and the cost of each article and to render a statement upon information and belief as to the origin of the fire, and the interest of the insured in the property, and of other insurance.
    James Lingle, for appellant.
    Hileman & Crawford, for appellee.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

4. Insurance, § 120 —how contract of fire insurance construed. A contract of fire insurance should not he construed so as to nullify it, if avoidable.

5. Insurance, § 226*—-when fire policy not forfeited by talcing of additional insurance. A fire insurance policy on a house and contents, providing that it shall be void if the insured at the time of the issuance thereof has, or thereafter procures, additional insurance “on property covered in whole or in part” by the policy should not be declared forfeited simply because the insured two years after the issuance of the policy procured insurance on a piano bought under a conditional sale contract, and to which title had not been procured at the time of the fire, especially where the piano was worth nearly twice the amount of insurance on the personal property.

6. Insurance, § 245 —when forfeiture in contract not enforced. Forfeitures in insurance contracts are regarded with disfavor and will not be enforced unless clearly within the language and spirit of the contract.


text:
    Emma Horst, Appellee, v. St. Louis Electric Terminal Railway Company, Appellant.
    (Not to be reported in full.)
    Appeal from the City Court of Granite City; the Hon. M. R. Sullivan, Judge, presiding. Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Action by Emma Horst, plaintiff, against St. Louis Electric Terminal Railway Company, defendant, for damages for personal injuries sustained as a result of falling into an excavation made by defendant in a street. From a judgment for plaintiff for $6,000 upon a remittitur of $2,500, defendant appeals.
    At the time of the injury to plaintiff, October 10, 1913, defendant was operating an electric railway line and engaged in the carrying of passengers from St. Louis to Granite City. Plaintiff was a passenger on one of defendant’s cars on the day in question, and was riding from St. Louis to Granite City, where she resided. Defendant had a car shop in Granite City on G street between Sixteenth and Seventeenth streets, and when the car upon which plaintiff was a passenger reached the shop it went upon a side track for the purpose of making some repairs to the air brakes. The car had been delayed and at that time was about an hour late. It arrived at the shop soon after six o’clock p. m. After it had stood upon the repair track for several minutes plaintiff, together with other passengers, left the car and walked north on G street.
    G street was one of the public streets in Granite City, but had no walks upon it between Sixteenth and Seventeenth streets, and as plaintiff and other passengers walked north on G street to Seventeenth street they followed the tracks of defendant’s car line. Plaintiff testified that it was dark and raining and there were no lights of any kind to guide her, and after she had walked north about twenty steps she fell into the excavation in question. She was helped out of the hole and continued to Seventeenth street, where she boarded a car for her home.
    Plaintiff and two other witnesses testified that while the car was waiting a passenger asked one of the crew if the car was going any further and he said: 1 ‘ This car isn’t going any farther. Get off here and walk up to Seventeenth and catch the next car.” Then plaintiff and other passengers left the car and started for the place indicated.
    There was some dispute as to the size and depth of the excavation into which plaintiff fell. She testified that the hole was about four feet deep, that she stepped right into it and was unable to get out alone, that she was helped out and assisted to the corner and there put on a car going to her home. She further testified that she was covered with mud, that her hands and arms were scratched and that she was suffering with a sprained ankle on her left foot and had pains in her right side. When she reached home Dr. King was called and she continued to suffer with pains in her foot and right side, the lower portion of her back and hips. She testified that her foot remained in that condition for about two weeks. On Sunday following her injury, in company with her husband, she went from Granite City to visit her father at Alhambra, Illinois, returning Sunday evening, walking to and from the cars. Her condition as to pregnancy at the time of her injury was uncertain. Her period for menstruation had passed about fifteen days, and following the fall it commenced with rapidity and continued for several days. For the next two or three weeks she was under a physician’s- care and an examination five weeks after the fall disclosed a retroflected or retroverted uterus with some prolapse. At the time of the trial Dr. King testified that the uterus was tipped back and at the time for menstruation it was necessary to use a dilator to give her relief. He did not testify that she had a miscarriage, but said that it was possible. He also testified that in her present condition she could not become pregnant and that it would require an operation to relieve her. This was the extent of her injury.
    Complaint was made of the following instruction given in behalf of plaintiff:
    “The Court instructs the jury, that if you believe from a preponderance of the evidence that plaintiff became a passenger on a street car of the St. Louis Electric Terminal Railway Company, in St. Louis, Missouri, to be carried to a certain point in Granite City, Illinois, on October 10th, 1913; and if you further believe from the evidence, that the said street car came to a stop at Sixteenth and Gf streets, in Granite City, which was not the destination of plaintiff; and if you further believe from the evidence, that plaintiff was then directed, by a servant of the said company in charge of the said street -car, to leave said street car and walk up the track of the St. Louis Electric Terminal Bailway Company, and board another street car, which was waiting at Seventeenth street, to convey her on to her destination, then she was a passenger of the St. Louis Electric Terminal Bailway Company during the time that she was walking up the track from the street car on which she had been riding to the one which awaited her.”
    Abstract of the Decision.
    I. Carriers, § 483

      —when instruction on existence of relationship of passenger and carrier correct. In an action by a street car passenger to recover damages for personal injuries sustained as the result of falling into an excavation made by defendant in a street at a point between its car shops, at which the car stopped for repairs, where plaintiff alighted under the direction of defendant’s employees to take a waiting car at the next street corner, an instruction on the existence of the relationship of carrier and passenger held correct.

      The court further instructed the jury that “common carriers are required to do all that human care, vigilance and foresight can reasonably do, consistently with the character and mode of conveyance employed and with the practical operation of the road, to prevent injury to passengers.”
    Terry, Gueltig & Powell, for appellant; George W. Burton and Graham & Graham, of counsel.
    H. J. Bandy and B. W. Griffith, for appellee; J. M. Bandy, of counsel.

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

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

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

   Mr. Justice McBride

delivered the opinion of the court.

2. Cabbiebs, § 329 —when relation of carrier and passenger not terminated. The relation of passenger and carrier exists where a street car passenger, after the car in which he is riding reaches the car barns where repairs are to be made, alights from such car under direction of the street railroad employees for the purpose of taking a car at the next street corner and is injured while walking on the ear tracks, in the absence of sidewalks, to take such car, as the result of falling into an excavation in the street between the barns and such corner.

3. Cabbiebs, § 482*—when instruction not erroneous as assuming facts. In an action by a street car passenger to recover damages for personal injuries sustained as the result of falling into an excavation made by defendant in a street at a point between its car shops, at which the car stopped for repairs and where plaintiff alighted under direction of defendant’s employees to take a car at the next corner, an instruction held not erroneous as assuming that plaintiff was directed to leave the car, walk up defendant’s track and take a waiting car where, although there was no evidence to show that a car awaited plaintiff at such corner, yet there was evidence that plaintiff did take the next car at the corner.

4. Cabbiebs, § 484*—when instruction on the care required towards passengers correct. In an action by a street car passenger to recover damages for personal injuries sustained as the result of falling into an excavation made by defendant in the street at a point between its car shops, at which the car stopped for repairs and where plaintiff alighted under the direction of defendant’s employees to take a car at the next corner, and such corner, an instruction on the care required of common carriers to prevent injury to passengers held to be correct.

5. Cabbiebs—what degree of care required towards passenger alighting under direction of employee short of destination to take another car. Where a passenger, upon a street car reaching car shops at which it is necessary to make repairs to the car, alights under the direction of the company’s employees to take a car at the next corner and, owing to the absence of sidewalks, walks up the track and is injured by falling into an excavation made by the company in the street, the ordinary rule as to the degree of care required of a carrier towards a passenger on one of its cars applies, and the carrier is held to the highest degree of care and caution, consistent with the practical operation of the road for the safety and security of passengers.

6. Negligence, § 140 —when burden of proof on plaintiff. In an action for damages for injuries negligently inflicted, under a plea of not guilty, the burden of proof is on plaintiff.

7. Evidence, § 365*—when opinion evidence inadmissible. Where it is neither admitted nor denied in an action for damages for injuries negligently inflicted that plaintiff suffered his injuries as the result of a fall as alleged in the declaration, but defendant seeks to show that the injuries complained of are due to other causes than a fall, it is not proper for witnesses to give their opinions as to the cause of the injury.

8. Evidence, § 365*—when opinion evidence inadmissible. Where there is a conflict in the evidence as to whether the plaintiff was injured in the manner claimed, it is not competent for witnesses to give their opinions on that subject.

9. Damages, § 114*—when verdict for injuries to uterus, temporarily precluding pregnancy excessive. In an action for damages for personal injuries sustained by a woman street car passenger as the result of falling into an excavation in the street made by defendant, while on her way to the next street corner to catch another car, after the car on which she was riding had stopped at the car barns for repairs and she had been directed to take another car at such corner, a verdict for $8,500, upon which a remittitur of $2,500 had been required, for minor injuries and an injury to her uterus precluding pregnancy, unless an operation was performed, held excessive.


text:
    J. W. Morrison and Louis Schaffler, Appellees, v. Pickrell Walnut Company, Appellant.
    1. Logs and logging—when evidence insufficient to sustain finding that plaintiff had used “Boyle’s rule” in measuring logs. In an action to recover on a logging contract, where the correct method of measurement was in question and each party measured the diameter of the logs at the small end, and the length of the logs as a basis for calculation, evidence held insufficient to sustain a finding that plaintiff had used “Doyle’s rule,” as claimed.
    2. Logs and logging—what is “Boyle’s rule" for measurement of logs. Doyle’s rule for the measurement of logs is to deduct four inches from the diameter of the log, as an allowance for slab; square one-quarter of the remainder and multiply the result by the length of the log in feet.
    Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed April 17, 1916.
    H. B. Eaton, for appellant.
    Springer & Buckley, for appellees.
   Mr. Justice McBride

delivered the opinion of the court.

The controversy in this case grows out of the mode adopted in the measurement of some logs.

It appears from the evidence that the appellant employed the appellees to cut some walnut logs for which it agreed to pay them $2.50 per 1,000 feet. The appellees claim that the contract was to pay $2.50 per 1,000 round log measurement, and the appellant claims it was to be log measurement. After the logs had been cut they each measured them, and made their respective computations of the number of feet in the logs; they each measured the diameter of the logs at the small end, and the length of the logs as a basis of calculation, and, so far as the record discloses, there is no difference in their measurements; but in the making of the computations appellees found that they had cut 16,154 feet, while appellant found there was only 8,237 feet. They each claimed to have adopted Doyle’s rule for measuring timber, and the tables, prepared therefrom and published in Scribner’s tables. The appellees used the table as shown at page 83 and denominated “Log Tally Calculator”; and appellant used a card containing table the same as is found on pages 73 and 74 of Scribner’s book, which is entitled “Bound Logs Seduced to Inch Board Measure by Doyle’s Bule.” The contention of the appellees is that the table denominated “Log Tally Calculator” is for round logs, and the table used by appellant is for board measure and not the correct rule for measuring logs.

We cannot agree with the contention of appellees that the table used by them would produce the correct result. The table does not purport to be one of measurements, but simply a quick mode of ascertaining the total number of feet where you have the number of feet of several logs of the same size; in other words, it is nothing more than a multiplication table, and could not be used with accuracy in determining the number of feet in a particular log where you have the length and diameter as a basis. Doyle’s rule, as laid down by a work of good repute, with civil engineers, and edited by Mansfield Merriman, entitled “American Civil Engineers Pocket Book,” at page 1265 is as follows: “For logs, the Doyle rule is known in some sections as the Connecticut Biver rule, the St. Croix rule, the Thurber rule, the Moore & Beeman rule, and the Scribner rule, and is more generally employed than any other; deduct four inches from the diameter of the log, as an allowance for slab; square one-quarter of the remainder and multiply the result by the length of the log in feet. It is the usual custom to measure the diameter inside the bark at the small end.” This, we believe, is a correct rule for the measurement of logs. The table found at pages 73 and 74 of Scribner’s book and used by appellant is the correct table for ascertaining the number of feet in a log where you have the diameter and length of the log. It is true that Scribner says that in arriving at the diameter you should take measurements at both ends of the log and obtain the mean diameter and use that as a basis instead of the diameter at the small end, but as appellant and appellees made their measurements at the small end of the log; we adopt that measurement in the determination of this case. The correctness of the table as published in the Scribner book at pages 73 and 74 above referred to, can be verified by taking any diameter, say twelve inches in diameter and fourteen feet in length, and deduct four inches for slab, which leaves eight inches, take one-quarter of this and you have two inches, square this result and you have four, and then multiply it by fourteen, the •length of the log, and you have fifty-six feet in the log, which is the exact amount given in the log table above referred to. If the dimensions of the several logs had been given in the record, we could have ascertained the number of feet for which appellant was liable and probably have avoided another trial, but as the dimensions of the several logs were not given, the case will have to be remanded. We are of the opinion that this case was tried by appellees upon an erroneous theory, and that the court erred in denying appellant’s motion for a new trial. The judgment will be reversed and the cause remanded.

Reversed and remanded.

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


text:
    Ernst Montegard, Appellee, v. Donk Brothers Coal & Coke Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. Louis Beenbeuteb, Judge, presiding. Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Action by Ernst Montegard, plaintiff, against Donk Brothers Coal & Coke Company, defendant, to recover damages for personal injuries sustained while acting as a driver in defendant’s coal mine. From a judgment for plaintiff after a trial without a jury for $3,000, defendant 'appeals.
    Plaintiff had worked for defendant four days prior to the time he received the injury. For two days he had worked at day work, the third and fourth day he was driving, receiving the injuries complained of on the morning of the fifth day. Plaintiff was working in what was designated as the fifth west entry off the main south entry. The fifth west, at the time of the injury, was about 1,200 feet in length, and ran east and west. At the east end where it turned off from the main south entry was a “parting” where empty cars for this entry were placed, and where loaded cars from it were delivered by the drivers. Booms were turned off the fifth west entry, on either side, at regular intervals of 70 feet each, and were numbered in- consecutive order, beginning at the east end of the entry. At the west end of this entry were two stub entries in which coal was being mined.
    The entry in question was unlighted, and a single mine track was laid therein, from the “parting” at the east to the west and, upon which pit cars were hauled. Switches were laid from the entry track into the various rooms for the purpose of taking in empties and hauling out loaded cars, but no sidings or turn-outs were provided, so that cars not being moved could be kept off the main entry track. The manner of delivering cars to and from the miners and loaders was to leave the empty stand upon the entry track until the loaded car was pulled from the room and placed on the entry track in the clear of the switch, after which the empty was run onto the switch, and into the room. Cars thus handled were, from time to time, left unguarded and unattended, and no method was adopted by which any light or other signal was displayed so that an approaching driver could ascertain that the track was obstructed.
    It also appeared that the fifth west entry had a down grade most of the way to the “parting,” and room 14 was at the top of a “hill” which extended downward past room 10.
    At the time of the injury, plaintiff and another driver by the name of Godfrey were working in the fifth west, Godfrey working that part of the entry from the parting to room 12, and plaintiff working the remainder of the entry to the west, pulling from the face of the entry, and from the two stub entries. It appears from the evidence that plaintiff did no work of any kind in that part of the entry worked by Godfrey, nor did Godfrey go into the portion worked by plaintiff and pull coal from or deliver empties to that part of the mine.
    On the morning of the accident plaintiff went into the entry first, with a trip of three empties, followed by Godfrey who went to rooms 10 and 12. Plaintiff delivered his empties to the west end of the entry, got three loads and started out. At the top of the hill, at room 14, he spragged his cars, and at that point one of his cars was thrown off the track, which delayed him somewhat. He then started down the hill, riding on the front end of his trip, one foot on the bumper of the front car, the other resting on the tail chain. In front of room 11 his mule swerved to the side, and plaintiff saw an empty car on the entry track, immediately ahead of him, and being unable to stop his trip, he leaped into this car. The empty was struck about the same time by plaintiff’s trip of loaded cars, and plaintiff thrown over the front end of the empty, to which he clung until it in turn collided with a loaded car, standing on the entry track in front of room 10. When plaintiff saw the loaded car he attempted to spring clear of it, but did not succeed, and his limbs were caught between the cars, and both broken between the hips and knees.
    Abstract of the Decision.
    1. Master and servant, § 721

      —when relationship of fellow-servants question of fact. The question of the relation of fellow-servants is ordinarily one of fact and only becomes a question of law when there is no dispute with reference to the facts, and the evidence, with all legitimate inferences to he drawn therefrom, is such that all reasonable and intelligent men must reach the same conclusion.

      The evidence did not disclose by whom the cars with which plaintiff collided were placed upon the entry track. The cars were not guarded, and no light or other warning signal was displayed by which plaintiff could ascertain their presence in time to avoid injury before running into them with his trip.
    At the trial defendant offered no evidence except a plat of its mine which was not preserved in the record.
    Keeee & Sullivan, for appellant.
    D. H. Mudge and C. H. Burton, for appellee.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

2. Mines and minerals, § 183 —when existence of relationship of fellou>servam,ts between mine coal drivers question of fact. In an action by a mine coal driver for damages for personal injuries alleged to be due to the negligence of another coal driver, where it was undisputed that both coal drivers worked in the same west entry, plaintiff taking loaded cars from the western division of the entry east to the main south entry, and the other driver from the eastern division over the same track, each obtaining empty cars at the main south entry, held that the existence of the relationship of fellow-servants was one of fact.

3. Mines and minerals, § 80*—when mine owner has constructive notice of obstructions on track of entry in mine. A mine owner must be deemed to have constructive notice of the existence of an empty, unlighted and unguarded car on the track in the eastern division of a mine entry at the time of the injury to a car driver proceeding from the western division of an east and west entry to a main south entry with loaded cars, where the entry, which was unlighted, was divided into two divisions, the western one of which was in charge of the injured servant as car driver and the eastern in charge of another car driver, and it was the practice for each to take loaded cars to a “parting” at the mouth of the main south entry over the single track and obtain empty ones, and the only method of delivering empty cars to the rooms off the east and west entry where the other driver worked was to bring out the load to the entry track, push it clear of the switch, and then run the empty into the room, and, while these changes were being made, either the loaded car or the empty was obstructing the track of the entry.

4. Damages, § 123*—when judgment for fracture of both legs not excessive. A judgment for $3,000 in favor of a mine car driver for permanent injuries consisting of oblique fractures of both legs, still causing pain at the time of the trial four years after the injury, and decreasing plaintiff’s height one inch, held not excessive.


text:
    H. Albrecht & Company, Defendant in Error, v. P. Massing and John Beaird, Jr., trading as P. Massing & Company, Plaintiffs in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Partnership, § 274

      —when evidence insufficient to show a sale of interest of partner to other and release from liability on partnership indebtedness by creditor. In an action of assumpsit by a wholesaler against a partnership for liquor sold to defendants where the sale was admitted, but one of the defendants ■ claimed that he had sold out to his partner and that the plaintiff had agreed to look to the other partner for payment of the partnership indebtedness, and the testimony was conflicting and a greater number of witnesses testified for defendants than for plaintiff, but defendant failed to call his partner to the stand, evidence held insufficient to sustain a finding that a sale had been made and that plaintiff had released such defendant from liability on any part of the partnership indebtedness.

      Error to the City Court of East St. Louis; the Hon. W. M. Vandevbnter, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Action of assumpsit by.H. Albrecht and Company, a corporation, plaintiff, against P. Massing and John Beaird, Jr., partners, trading under the firm name and style of P. Massing & Company, defendants, upon an account for liquor alleged to have been sold to defendants as a partnership. From a judgment for plaintiff, defendants bring error.
    C. B. Thomas and E. J. Verlie, for plaintiffs in error; Keefe & Sullivan, of counsel.
    Dan McG-lynn, for defendant in error.

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

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

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

   Mr. Justice McBride

delivered the opinion of the court.

2. Evidence, § 480 —what is effect of failure to call witness in party’s control. The failure of partner in a suit for a partnership indebtedness, the defense of such partner being a sale to his copartner and a release from liability by the creditor, to call his copartner to the stand is evidence which may be considered in determining whether such partner was released from liability on such indebtedness.

3. Partnership, § 274*—when burden of proof on partner to show sale to copartner and notice by creditor. The burden of proof is upon a partner in a suit on a partnership indebtedness to establish a sale of the interest of such partner to the other and notice thereof by creditor.

4. Partnership, § 253*—when creditor without notice of change may recover for goods sold after change in partnership. A creditor who has no notice of change in a partnership by the sale of the interest of one partner to his copartner may treat it as a continuing partnership and recover for goods sold after the change in the partnership.

5. Appeal and error, § 447*—when error in admission of testimony not reviewable. Error in the admission of testimony is unavailable where no objection was made to the testimony in the trial court.

6. Evidence, § 73*—when evidence as to statements made to third persons competent to contradict witness. In an action on a partnership indebtedness, the defense of one of the partners being that he had sold out to his copartner and that plaintiff agreed to look to such copartner for payment, where defendant testified that he had told certain persons that he had sold out, held that the evidence of such persons was competent to contradict him upon the making of the sale.

7. Instructions, § 151*—when requested instruction covered by charge properly refused. A requested instruction embodied in instructions already given is properly refused.

8. Partnership, § 248*—when instruction on admission of liability of copartner misleading. In an action against a partnership which one of the partners defended on the ground that he had sold out to his copartner and the creditor had agreed to look to the copartner for payment, an instruction that the copartner had defaulted and admitted that he was liable for the debt, held properly refused as misleading.

9. Appeal and error, § 1560 —when refusal of instruction assuming facts not reversible error. In an action against a partnership on an alleged partnership indebtedness where the defense of one of the partners was that he had made a sale to his copartner and that the creditor had agreed to look to the copartner for payment, the refusal of an instruction for defendant which assumed' that the debt was that of the partner defending, held not reversible error.


text:
    Sherman Mason, Plaintiff in Error, v. Illinois Banker’s Life Association of Monmouth, Illinois, Defendant in Error.
    (Not to he reported in full.)
    Error to the Circuit Court of Alexander county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Action by Sherman Mason, plaintiff, against Illinois Banker’s Life Association of Monmouth, Illinois, defendant, on a life insurance policy. From a judgment for defendant, plaintiff brings error.
    Bennett Mason, father of plaintiff, procured an insurance policy in defendant company for $2,000. The policy provided for the payment of assessments and contained a clause of forfeiture in case of failure to pay any assessment. The agent through whom the insurance was procured was D. J. O’Connell of Cairo, who was the defendant’s agent at that place. The insured was of the age of forty-nine years, and under the by-laws was required to give guaranty notes for the amount of $24.50, and to pay what they called an admission fee of $24.50. This admission fee belonged to O’Connell as the agent. The insured had no money wherewith to pay O’Connell the admission fee and gave him his note therefor for $24.50. The first assessment was made in January, but the insured insisted that O’Connell had told him he would not have to pay the first assessment, and through the instrumentality of O’Connell the first assessment was abated. Between the first assessment made in January and the second one made in April, the insured made several payments to O’Connell in small amounts, ranging from $1 to $6, making a total of $24, the last payment of $6 having been made on the 11th of April, 1908. At about the time the last payment was made the insured received notice of an assessment for $6.13, designated as call No. 42. In a letter later he claimed that the payments made by him to O’Connell were upon his assessments, but O’Connell said they were paid to him upon his note given as admission fee and credited thereon. It was not claimed that there was any payment made of the April assessment except the money paid to O’Connell. Assessments were made by defendant upon policies in July and October and were designated as call No. 43 and No. 44, but no assessment was extended at these dates against this policy. Between the time of payment made to O’Connell in April and the month of October the insured moved to Missouri.
    The policy provided that: “Upon the failure of the member to pay the calls levied within the time allowed by the by-laws of this association, * * * such membership shall be forfeited and all rights to • any share or interest in the guarantee fund or other property of the association shall cease absolutely at the expiration of the time stipulated in which such payments are required to be made. ’ ’ It was also provided by the by-laws that: “Notice of assessment shall be mailed to each member by the secretary and thirty days shall be allowed from the date of mailing such notice, during which time such assessment shall be paid.”
    The letters of the deceased indicated that he was an illiterate man and the evidence tended to show it was difficult for him to understand the plan of insurance. After he went to Missouri and in October, 1908, he sent a money order to 0 ’Connell for $6.25, which would be the insurance due in October. O’Connell indorsed this money order to defendant and forwarded the same and then wrote the deceased to correspond in the future with the defendant company as he was no longer engaged at work with the company, Then on October 26, 1908, W. A. Sawyer, the'secretary of the company, wrote the deceased-a letter advising him of the receipt of the $6.25 from O’Connell and also advising him that his insurance lapsed on call No. 42, and that to place him in good standing he would have to forward $12.14 more, together with a health certificate. On November 2, 1908, the deceased wrote the defendant a letter advising it of the receipt of their letter of October 26th., in ’which he says:
    “I see in your letter you have relaps mi policy again, now when did you relaps it and why did you notify me. I can shoe my receipt for 24 dollars for the last year I know it not my fault only this lat payment I never had *.ny instruction your collector call on me and got your money and I thought it was all rite, "now mr I think you had out hold me responsible for what your agent does I have paid into the Illinois bankers $29.25 dollars and twenty-five cents and I will rite to your collector and see what he has to say about it and I want you to see about it. I never had any instruct to sen it to the home office, now mr have murce on the widow, son. ’ ’
    On November 5th, Mr. Sawyer, the secretary of defendant, replied to this letter and advised him that the money paid to the agent was undoubtedly upon the admission fees, and inclosed a health certificate showing the amount necessary to put his policy in force and then added: “I am writing to our agent for information regarding the amount of money you claim you paid to him and will notify you what he has to say regarding the matter.” On November 15th, the deceased wrote to defendant another letter asking the reason why his money was held back and the policy allowed to lapse, and stating that it was no fault of his, and that if he wanted the policy .to be reinstated he would have to do it, and accused the agent of having set out to beat him, and that he lied to him, etc. There was also offered in evidence a paper marked “Exhibit H. 2,” which purported to be a call for assessments Nos. 42, 43 and 44 of $6.13 each, with the credited money order of $6.25, and the balance of $12.14, and advising that this sum must be paid in thirty days, if not the policy will be forfeited. This exhibit had no date and it was not shown when it was received. On November 5, 1908, the defendant company forwarded to the deceased an assessment notice advising him that the amount of $6.13 for call No. 42, $6.13 for call No. 43, and $6.13 for call No. 44, total $18.39, was required to be paid in one month or policy would be forfeited. On November 18th, Mr. Sawyer, secretary of defendant, wrote deceased another letter in which he advised him that he supposed the money paid by him to O’Connell was upon the admission fee, and inclosing a marked folder for him to examine so as to understand the plan of the contract, then he said: “I am again taking- this matter up with D. J. O’Connell to see if I can get you straightened out correctly. I am very sorry that there seems to be an apparent misrepresentation of our plan but I certainly hope we can adjust the matter to the satisfaction of all concerned.” This was the end of the correspondence and on November 24th, Bennett Mason, the insured, died.
    Instruction No. 28 undertook to define a “waiver,” in which it said: A “waiver” consists of a “voluntary relinquishment of some known right, benefit or advantage, which the party would otherwise have enjoyed, it being essentially a matter of intent, and which, as in this case, the only proof of that intent rests in what a party does or forbears to do, his act should be so manifestly indicative of an intent to relinquish a then known particular right or benefit that no other reasonable explanation is possible.”
    Abstract of the Decision.
    1. Insurance, § 321

      —when provision in policy for forfeiture for nonpayment of premium may be waived. The provision in a life insurance policy for the forfeiture of the policy for nonpayment of a premium is for the benefit of the insurer and may be waived by it.
    2. Insurance, § 665*-—when evidence sufficient to establish waiver of provision in policy for forfeiture for nonpayment of assessments. In an action on a life insurance policy, evidence held sufficient to show a waiver of the provision in the policy for forfeiture for nonpayment of assessments by an extension of time.
    3. Instructions, § 114*—when instruction directing verdict and ignoring defense improper. An instruction which directs a verdict and ignores an essential element of the defense is erroneous.
    4. Insurance, § 693*—when instruction ignoring question of waiver vicious and misleading. In an action on an insurance policy where there is evidence fairly tending to prove a waiver, an instruction given for defendant- without containing the element of waiver is vicious and calculated to mislead the jury.
    5. Appeal and error, § 1646*—when error in giving incorrect instruction not cured. The giving of other correct instructions does not cure an error in giving an instruction ignoring an essential element of the defense and for which there is basis in the evidence.

      M. J. O’Shea and C. S. Miller, for plaintiff in error.
    Miles Frederick Gilbert and Samuel S. Hallam, for defendant in error.

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

   Mr. Justice McBride

delivered the opinion of the court.

6. Insurance, § 693 —when instruction on waiver erroneous. In an action on an insurance policy where the defense was waiver of forfeiture by extension of time for payment of assessments, a general instruction on what constitutes waiver held erroneous as being too narrow, and ignoring the waiver in the particular case.


text:
    Frank Virgin, Appellant, v. J. H. Hermanny, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Evidence, § 243

      —when hill in prior case admissible. Proof that a bill in a prior case, the judgment of which is claimed to he a bar to the second action, was the original bill filed in the first case or that it was part of the files in the first case is essential before it is admissible in evidence in the second case.
    Appeal from the Circuit Court of Perry county; the Hon. Louis E. Berneeuter, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Action by Frank Virgin, plaintiff, against J. H. Hermanny, defendant, for damages for the conversion of certain bonds. From a judgment for defendant, plaintiff appeals.
    George W. Dowell, for appellant.
    W. O. Edwards, for appellee.

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

   Mr. Justice McBride

delivered the opinion of the court.

2. Evidence, § 244*—when copy of decree in prior case admissible in evidence. In order that a paper purporting to he a decree in a pri- or case may become admissible in evidence as a copy of such decree, it is necessary that such copy be certified to under the seal of the clerk of the court, as provided by Rev. St. ch. 51, sec. 13 (J. & A. H 5530).

3. Appeal and ebbob, § 948*—when error in failure of clerk to certify to record in another case offered in evidence not cured. Where a bill of exceptions signed by the trial judge contains a purported decree in another case which is offered in evidence without the certificate of the clerk as provided by law, the clerk cannot cure the error by filing a supplemental record containing the same decree with the addition of such certificate.


text:
    O. F. Songer, Appellee, v. Anthony Pfeiffer, Appellant.
    1. Appeal and ebbob, § 943

      —how question of defective record raised. The better practice is to call the attention of the Appellate Court to a defective record by a proper motion, but where counsel calls its attention to such a vital defect as the absence of the signature of the trial judge to the bill of exceptions in his brief, the appeal will be dismissed.
    2. Appeal and ebbob, § 842*—when signature of trial judge to bill of exceptions necessary. The Appellate Court has no power to review anything contained in a purported bill of exceptions where it has not been signed by the trial judge.
    3. Appeal and ebbob, § 1120*—when case dismissed on appeal for insufficiency of record. A case may be dismissed on appeal where the purported bill of exceptions has not been signed by the trial judge.
    Appeal from the Circuit Court of St. Clair county; the Hon. Geobqe A. Cbow, Judge, presiding. Heard in this court at the October term, 1915.
    Appeal dismissed.
    Opinion filed April 17, 1916.
    Perrin & Kircher, for appellant.

      Schaumleffel & Johnson, for appellee.

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

   Mr. Justice McBride

delivered the opinion of the court.

It appears from the record in this case that the appellee brought a suit against appellant for slander, charging that appellant stated to him in the presence of other persons: “You are a thief. You stole my bill of lading and placed it in your drawer.” A trial was had and .judgment rendered against appellant for one hundred and fifty dollars, and costs of suit, and to reverse that judgment appellant prosecutes this appeal.

Counsel for appellee in his brief calls the attention of the court to the fact that no proper bill of exceptions has been filed in this case; that the purported bill of exceptions has not been signed by the trial judge. An examination of the record filed shows this to be true, and counsel insist for this reason the court has no power to consider the case upon its merits, and that the appeal should be dismissed. We think the better practice in cases of this kind is to call the attention of the court to the defective record by a proper motion, but as the signature of the trial judge is necessary and without it this court has no power to review anything contained in the purported bill of exceptions, we are of the opinion that the appeal should be dismissed.

Appeal dismissed.


text:
    Richard O’Neal for use of D. B. Yezner, Appellant, v. Saline County Coal Company, Appellee.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Assignments, § 3

      —when wages may he assigned. A power of attorney, authorizing an agent at any time that the maker thereof shall be indebted to a certain corporation to make an assignment of all wages due or thereafter becoming due to such corporation as collateral security for any indebtedness to such corporation, is limited to the time during which such maker is indebted to such corporation.
    2. Garnishment, § 76*—when duty of defendant to show that agent maTcing assignment of wages under power of attorney within terms thereof. In garnishment proceedings where the defendant sets up an assignment of wages due from wages made by an agent of the debtor under a power of attorney as a defense, it is the duty of the defendant to show that when the agent executed the assignment under such power of attorney he was within the terms thereof.
    Appeal from the City Court of Harrisburg; the Hon. William H. Parish, Jr., Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Garnishment proceedings by Richard O’Neal for the use of D. B. Yezner, plaintiff, against Saline County Coal Company, a corporation, defendant. From a judgment in favor of defendant, plaintiff appeals.
    Lewis, Ronalds & Lewis, for appellant.
    Whitley & Combe, for appellee.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

3. Principal and agent, § 122 —when principal bound by acts of agent in making assignment of wages. Where conditions exist in the authority of a special agent to make an assignment of wages and his authority is limited and- depends upon the existence of certain facts and conditions, then it devolves upon the agent exercising the power to show that the conditions upon which the right to exercise it were then in existence, or that the act was in some way ratified by tbe principal.

4. Principal and agent, § 189*—when act of special agent in making assignment of wages ratified. The act of a special agent in making an assignment of wages under a power of attorney, when the maker was not indebted at the time to the assignee, is ratified by the act of the maker in permitting the agent to draw all of his wages and pay only a portion thereof to him.

5. Assignments, § 3*—ivhen power of attorney authorising assignment of wages valid. A debtor may execute a power of attorney authorizing an agent to make an assignment of his wages as collateral security for an existing indebtedness where he is in the employ of the corporation against whom the assignment is drawn at the time of the execution of the power of attorney.

6. Assignments, § 15*—what constitutes equitable assignment of wages. Where a debtor making a power of attorney authorizing an assignment of his wages permits the agent to make such assignments from time to time and receives a portion of his wages from such agent, the assignment must be deemed to be at least an equitable assignment, although the maker was not indebted to the assignee at the time of the making of the assignment.

7. Garnishment, § 130*—when equitable assignment of wages protected. An equitable assignment of wages will be protected by courts of law even in garnishment proceedings.

8. Assignments, § 37*—when assignment of wages not presumed fraudulent. Where a debtor was actually indebted to a loan company at the time of the garnishment of his wages, an assignment of wages to the loan company under a power of attorney by the person owning the loan company will not be presumed fraudulent unless the acts are shown to be fraudulent or made for the purpose of hindering and delaying creditors.


text:
    Thomas Pearson for use of D. B. Yezner, Appellant, v. T. J. O’Gara et al., Trustees, Appellees.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Assignments, § 3

      —when assignment of wages invalid. An employee cannot himself assign wages to he earned in a future employment for which he has not contracted at the time of the assignment.
    Appeal from the City Court of Harrisburg; the Hon. William H. Parish, Jr., Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 17, 1916.
    Rehearing denied May 25, 1916.
    Statement of the Case.
    Garnishment proceedings by Thomas Pearson for the use of D. B. Yezner, plaintiff, against T. J. O’Gara, W. C. Niblock and William Weinand, trustees in bankruptcy of the O’Gara Coal Company, a corporation, bankrupt, defendants. .From a judgment for defendants, plaintiff appeals.
    At the time of the execution of the power of attorney and assignment Pearson was employed by the O’Gara Coal Company, but at the time of the serving of the garnishee process he was in the employ of the defendant trustees.
    Lewis, Ronalds & Lewis, for appellant.
    Whitley & Combe, for appellees.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

2. Assignments, § 3 —when assignment of wages by attorney in foot under power of attorney invalid. An employee cannot by an attorney in fact authorized by a power of attorney entered into before a contract of employment was made assign his wages to be earned under such contract of employment.

3. Pbincipai, and agent, § 122*—when acts of special agent valid. Where a principal authorizes a special agent to perform an act in the name of the principal upon certain conditions, it devolves upon the agent to show those conditions were in existence at the time of the performance of the act, or afterwards waived.

4. Assignments, § 3*—when assignment of wages invalid. Where a special agent is only authorized to execute an assignment of wages under a power of attorney at a time when the principal was indebted to the assignee and no indebtedness existed at the time of the assignment, such assignment is invalid.