author: Mb. Justice Smith

text:
    Philo A. Orton and Henry G. Steinbrenner, trading as Orton & Steinbrenner, Appellants, v. Artesian Stone & Lime Works Company, Appellee.
    Gen. No. 17,916.
    1. Sales, § 153

      —When warranted goods are accepted. An ex-ecutory contract for the sale of two electric cranes provided that they should be erected by the seller, who was to furnish a man to instruct the buyer’s operators and who warranted, the work the cranes would perform. The cranes were constructed and operated alike, giving double opportunities for inspection and test, and were operated by the buyer during a period of over two months in the busy season and for its use and benefit. At the expiration of such time the buyer declined to accept the cranes on the ground of a breach of the warranty as to the work they would perform. Held, the buyer had accepted the cranes and was liable for the purchase price, and instructing the buyer’s employes was not retaining control and ownership of the cranes.
    2. Sales, § 276

      —time when rejection must he made. Where an executory contract for the sale of electric cranes to be erected by the seller does not provide for a test run, the buyer cannot reject the cranes for a breach of warranty after a reasonable time, under all the circumstances, necessary for testing them.
    3. Sales, § 390*—when buyer not paying is not in default. Where a contract of sale provides the buyer is to pay one-half the purchase price on presentation of bill of lading, payment when the goods were shipped, where the bill of lading was not presented until after the buyer attempted to reject the goods.
    Appeal from the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding. Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed November 24, 1913.
    Charles Center Case, Jr., for appellants.
    John Edward Waters, for appellee.

      See Illinois Notes Digest, Vols., XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mb. Justice Smith

delivered the opinion of the court.

This was a case of the first class in the Municipal Court of Chicago brought by the appellants to recover from the appellee the sum of $14,000, with interest thereon, the purchase price of two electric cranes, and also certain extras for materials and services amounting to about $1,000, duly itemized in appellants’ statement of claim. The appellee claimed that the two cranes failed to fulfil appellants’ guaranties and were thereupon rejected; and by reason of certain charges, expenses, etc., thereby caused it, amounting to about $1,100, the appellee filed a set-off to recover therefor. On a hearing- by the court, without a jury, the court found the issues for the appellee and entered a judgment on the findings against appellant for $710.54.

On December 20, 1909, the appellants wrote the following proposal to the appellee:

“In reply to your request, we are pleased to quote you upon 2 electric broad gauge revolving cranes, in accordance with attached specifications and blue print, erected complete upon your bins, with all wiring upon crane done and including the services of an Expert Superintendent to instruct your operators in the handling of the machines, the sum of Fourteen Thousand Dollars ($14,000). We can make delivery of complete equipment in 70 days from receipt of order. Terms to be 50% upon presentation of bill of lading and the remaining 50% 60 days thereafter. Trusting that we may be favored with your valued order, we are,
Tours very truly.”

With this proposal were a blue print and ‘‘ Specifications for Electric Revolving Cranes for Artesian Stone & Lime Works Co.,” the specifications covering nearly four closely printed pages of the abstract. The concluding paragraph thereof was as follows:

“We will guarantee that under reasonably favorable conditions and with a good operator and current of proper voltage supplied at the motor 75 trips of the bucket from the barge to the bins can be obtained per hour. We will also guarantee that under similar conditions, 150 to 200 tons of stone can be unloaded from the barge to the bins per hour. We will also guarantee material and workmanship and will agree to replace F. O. B. cars our shops any parts proving defective within six months from date of installation. ’ ’

The said proposition was accepted by the appellee in writing January 13, 1910. Work was not begun by the appellants on the said cranes until about April 1,1910, and they were not delivered to the appellee until June, 1910, beyond the time limit of seventy days for the delivery thereof.

The appellee was engaged in the business of quarrying and selling crushed stone, with a quarry and place of business at Summit, Illinois, near the Chicago drainage channel. It proposed to erect bins at its yards on the north branch of the Chicago river near the intersection of Barry and Campbell avenues, and hereinafter referred to as the North Side yard, and at its yards on the south branch of the Chicago river near the intersection of 37th and Iron streets, and hereinafter referred to as the South Side yard. By means of three boats or barges, owned by the appellee, stone was brought up the canal into the river to the yards in question and the said cranes were to be used to unload said boats and place the stone into the bins, from which it would be loaded into wagons by gravity.

The two cranes in question were made by a company with shops at Harvey, Illinois, of which the appellant Steinbrenner was superintendent, and both appellants were stockholders. One of the cranes was shipped from Harvey May 31st, June 2nd and 4th, to the North Side yard and there erected and started in operation about July 5th. The other crane was shipped June 9th and 14th to the South Side yard and there erected and started in operation about July 18th. It naturally took, time to adjust and get the said cranes in working order. There was some difficulty in operating the cranes because of certain parts of the machinery breaking. accidents, and other causes not clear, being the subjects of much testimony more or less conflicting. On September 21st the appellee wrote the appellants declining to accept either of the cranes on the ground that they “fail to and are incapable of doing the work for which they were made and purchased,” and requested appellants to take them away. The appellants failing to so do, the appellee took them down and cared for them at the respective yards.

The record is a voluminous one. The abstract consists of nearly four hundred pages. Both counsel have filed long and exhaustive briefs, in all more than five hundred pages. The testimony on many points is conflicting, and a great many legal propositions are advanced and argued in the briefs. To analyze the evidence and comment, even briefly, upon the legal points raised would require an opinion of unpardonable length. Suffice it to state that we have given the abstracts and briefs careful and patient study and shall only attempt to indicate the controlling features of the case and our opinion thereon.

That the time limit for delivery of the cranes within seventy days after the receipt of the order was waived, is, from all the evidence and circumstances in the case, too obvious to require any serious comment.

The principal and controlling question in the case is, were the cranes in question accepted by the appellee? If so, then the appellee was bound to pay the purchase price thereof, less, of course, the damages it might be able to establish by way of recoupment. Wolf Co. v. Monarch Refrigerating Co., 252 Ill. 491-508.

Mechera on Sales, in discussing an executory contract with a warranty, says, section 818: ‘ ‘ The buyer in these cases is not obliged to rescind; he may do so, or he may retain the chattel and have his action for the damages. If he would exercise his option, he must do so with promptness after his discovery of the breach of warranty. He has a reasonable time, considering all of the circumstances, within which to test the chattel to ascertain whether it conforms to the warranty; but if it does not, he must promptly return or offer to return the article to the seller in rescission of the contract.

Also section 1380: “The acceptance need not be express. It may be, and, in the cases coming before the courts, ordinarily is, implied or denied in reliance upon the circumstances of the case.

The fact most frequently relied upon as the ground of an implied acceptance is that the buyer, after receiving the goods, has retained them without objection for an unreasonable period. As has been seen, the buyer has the right to inspect the goods and is then bound to accept them if they conform to the contract, or to reject them if they do not. He is bound, however to do one thing or the other, and that within a reasonable time; and if he simply remains inactive, neither accepting or rejecting within a reasonable period, the law will deem his inaction to be acquiescence, and he will not afterwards be permitted to reject," and cites many authorities in support thereof. In Dorrance v. Dearborn Power Co., 233 Ill. 354, the Court says: “In determining what is a reasonable time in which to reject an article on account of a breach of warranty, all the circumstances, the conduct of the seller, and what he has said, are to be taken into consideration; but the buyer is bound to reject the article, if at all, within a reasonable time in view of all such circumstances, acts and statements, otherwise he is bound to keep the article and pay the price, less the damages occasioned by the failure of the warranty,” citing authorities.

In Underwood v. Wolf, 131 Ill. 425, the Court says: “In Benjamin on Sales, Vol. 2, sec. 1356 (4th Am. ed.) it is said: ‘The buyer will also lose his right of returning goods delivered to him under a warrant of quality, if he' has shown by his conduct an acceptance of them, or if he has retained them a longer time than was reasonable for a trial, or has consumed more than was necessary for testing them.’ * * *

In Doane v. Dunham, 65 Ill. 512, and same case, 79 id. 131, the distinction between executory and executed contracts was recognized, and it was held that, in the former, the law gives the buyer a reasonable time for mailing an examination of the chattels sold, that it is for the jury to determine under all the circumstances what is such reasonable time, that a failure to make the examination within a reasonable time may preclude the buyer from offering the property back, rescinding the contract and avoiding payment on that ground, but will not deprive him of the right to rely upon the breach of the warranty for damages. The only difference between that case and the one at bar is, that there the lato gives time for examination or test, while here the contract fixes the time. The same rule, however, will apply to both cases. (Estep v. Fenton, 66 Ill. 467.)”

In the contract in the case at bar there was no clause in the contract providing for a test run, and under the rules above quoted the appellee could not reject the cranes after a reasonable time under all the circumstances necessary for testing same. The crane at the North Side yard was operated over a period of more than eleven weeks, unloading during that time fifteen boat loads of stone and putting same into the bins. The crane at the South Side yard was operated over a period of nine weeks, unloading during that time eighteen boat loads of stone and placing same into the bins. The cranes were constructed and operated alike; thus the appellee had double opportunities for inspection and testing them. The appellee operated the cranes at different times by its own employes, and much of the time under the instruction of the appellants. Thus instructing appellee’s employes was by no means retaining the control and ownership of the cranes, but was in performance of a specific provision of the contract. The cranes were operated during the two months, or more, of the busy season of the appellee’s business and for its use and benefit. The conditions and operations thereof during all this time were plain and apparent to the appellee; and it seems clear to us that under all the facts and circumstances it had not the right at so late a date as September 21st to reject the cranes. Of course we appreciate the appellee’s contention that it never accepted the cranes by word or act and delayed the rejection thereof until September 21st for the purpose of giving the appellants every opportunity to perfect the operation of the cranes and fulfil their guaranties. We have given this position, with all the evidence bearing thereon, due and careful consideration and think the same cannot be maintained. There is much testimony, which we do not attempt to here detail, that indicates to us the contrary.

We conclude that under all the facts and circumstances in evidence the rules of law above mentioned are plainly applicable and the appellee must be held to have accepted said cranes and is therefore liable therefor.

We are of the further opinion that a clear preponderance of the evidence shows “that under reasonably favorable conditions and with a good operator and current of proper voltage supplied at the motor,” the guarantee of seventy-five trips of the bucket from the boats to the bins per hour was obtained. Whether that speed could be obtained with full buckets and thus fulfil the guarantee .of one hundred and fifty to two hundred tons of stone unloaded per hour from the boats to the bins, we have not been able to satisfactorily determine. The contract specifically provided the remedy for defective parts. From all the evidence pertaining to breakage of material and the quality of the workmanship, we are not prepared to hold that the appellee did not prove that the appellants failed in their guarantee in a few instances as to workmanship, and for which it may be entitled to some allowance.

The bills of lading were not delivered to the appellee until after September 21st; and therefore the appellee was not in default by reason of not paying the fifty per cent, of the contract price of the cranes when shipped.

There was much incompetent testimony introduced, but as there can be no reason why it should be again presented on another trial it needs no discussion, and especially as the case was tried by the court without a jury; and, of course, in our decision of the case we have not considered such testimony.

For the reasons indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    Fred Steele, Defendant in Error, v. Hathway Lumber Company, Plaintiff in Error.
    Gen. No. 18,178.
    . 1. Evidence, § 7

      —when judicial notice taken of foreign laws. In an action on a foreign judgment of a justice of the peace, judicial notice will be taken of the laws of the State as far as it may be necessary to ascertain the faith and credit to be given to the judgment.
    2. Judgment, § 669

      —what shows jurisdiction. Where in an action on a foreign judgment of a justice of the peace the record of the justice’s suit shows that the defendant’s attorneys entered an unqualified appearance, but that the defendant was not summoned, there being no evidence that the attorneys had no authority, their appearance gave the justice jurisdiction.
    3. Judgments, § 670

      —when continuance of jurisdiction presumed. Where in an action on a foreign judgment of a justice of the peace it appears that the justice had jurisdiction of the subject-matter and parties, he will be considered to have had such jurisdiction up to and at the time of entering judgment, unless it be shown that in some manner he lost jurisdiction before the entry of the judgment.
    Error to the Municipal Court of Chicago; the Hon. William C. De Wolf, Jk., Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed November 24, 1913.
    Adams, Bobb & Adams, for plaintiff in error.
    Winston, Payne, Strawn & Shaw, for defendant in error; George A. Kelly, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Smith

delivered the opinion of the court.

The plaintiff, the defendant in error, brought an action of the fourth class in the Municipal Court of Chicago against the defendant, here the plaintiff in error, on a judgment of a justice of the peace rendered in the State of Alabama. On a trial before the court a transcript of the said judgment before the justice of the peace was introduced in evidence and also certain statutes of Alabama; and the defendant offering no evidence the court entered judgment for the plaintiff for $47.80.

The transcript of the record introduced in evidence was properly authenticated, and we can see no good objection thereto. State v. Hinchman, 27 Pa. St. 479.

The defendant claims that it is not shown that the justice of the peace had jurisdiction. The suit before the justice of the peace, as shown by the record, was for $36 “for goods, wares and merchandise sold by the plaintiff to the defendant, on to-wit, the 12th day of July, 1910.” The defendant appeared by its attorneys entering therein “an unqualified appearance in the above cause.”

“In an action on a judgment rendered in a sister State, judicial notice will be taken of the laws of that State so far as it may be necessary to ascertain the faith and credit to be given to the judgment, ’ ’ applies to a court of inferior and limited jurisdiction as well as to a court of general jurisdiction. Kopperl v. Nagy, 37 Ill. App. 23.

That the defendant was not summoned is of no avail where its appearance was entered by its agents or attorneys. Where the authority of an attorney to represent a party in court is not questioned, the court may properly proceed on the assumption that the party is in court. And there being no evidence that such authority was questioned, and no evidence offered in the case at bar that the said attorneys had in fact no. authority to represent the said defendant before the said justice, it seems to us that the said appearance gave the court jurisdiction of the parties. It appearing that the court had jurisdiction of the subject-matter and the parties, it will be considered to have continued to have such jurisdiction up to and at the time of entering judgment, unless it be shown that in some manner it lost jurisdiction before the entry of the judgment; and nothing of such nature is shown by this record.

The judgment is affirmed,

Affirmed.


text:
    Rose Shea, Administratrix, Appellant, v. Chicago & Oak Park Elevated Railroad Company, Appellee.
    Gen. No. 18,193.
    Railroads, § 678

      —when policeman stationed at graded crossing guilty of contributory negligence as a matter of law. In an action against an elevated railroad company to recover for the death of a policeman stationed at a graded street crossing to warn the public of the approach of trains, the deceased having been struck by one of defendant’s trains while he was standing on one of the tracks, plaintiff’s evidence held to show that deceased voluntarily and unnecessarily assumed a dangerous position and was guilty of contributory negligence as a matter of law, though there was evidence tending to show that there was a custom to stop or reduce speed of trains on approaching the crossing.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed November 24, 1913.
    Morse Ives, for appellant.
    Addison L. Gardner, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Smith

delivered the opinion of the court.

The appellant began this action against the appellee to recover damages under the statute for the death of Edward Shea. After all the evidence was submitted to the jury on a trial thereof the court instructed the jury to find the appellee not guilty and on the verdict so returned entered judgment.

It appears from the evidence that the appellee operated electric trains east and west over a double track railroad across Austin avenue, a north and south avenue, the dividing line between Chicago and Oak Park. To the north and adjacent to appellee’s north track was a concrete wall sustaining the elevated tracks of the Chicago & Northwestern Bailway Company, the said tracks crossing over Austin avenue on a viaduct. On the east side of Austin avenue was a station of the appellee. About thirty-five feet west of Austin avenue, between the appellee’s tracks, was a flagman’s shanty. West of the shanty a switch track extended from the south track, near the shanty, about one hundred and sixty-five feet in a northwesterly direction to the north track. The crossing was obviously a dangerous one and the decedent, a police officer, had been stationed there for about a year to warn and protect the public in the use thereof. On the day of his death he was standing on the switch track when an eastbound train, running about twenty miles an hour, without warning, according to the plaintiff’s evidence, struck and killed him.

The question presented is, whether the decedent was, as a matter of law, guilty of contributory negligence. The evidence introduced by the plaintiff, to which the trial court was, and we are limited in considering the question, tended to show a custom to stop or reduce the speed of all eastbound trains before crossing Austin avenue. The plaintiff contends that this custom being known to the decedent, he had a right to rely thereon and act upon the assumption that no eastbound train would cross Austin avenue without first stopping or reducing its speed; and having a right to rely thereon, it was an element in the consideration of the question of contributory negligence that required a submission thereof to the jury as a question of fact.

The defendant invokes the rule it claims controlling, quoting from Loettker v. Chicago City Ry. Co., 150 Ill. App. 69: “It has been held that a flagman stationed at a crossing to look out for trains and give warning of their approach, if run over by a train, cannot recover,” and authorities there cited. Also that the decedent was guilty of contributory negligence as a matter of law in voluntarily and needlessly exposing himself to danger as announced in Austin v. Chicago, R. I. & P. Ry. Co., 91 Ill. 35; Wilson v. Illinois Cent. R. Co., 210 Ill. 603; Belt Ry. Co. v. Skszypczak, 225 Ill. 242; Illinois Cent. R. Co. v. Curran, 94 Ill. App. 182; Chicago, R. I. & P. Ry. Co. v. Miller, 135 Ill. App. 26, and quoting, inter alia, from the Wilson case, where the court held the plaintiff guilty of contributory negligence : ‘ ‘ There was nothing to obstruct the view, or to prevent his seeing the approaching engine in time to avoid the injury, whatever its speed, or the negligence of the engineer to sound the whistle or ring the bell. There was no apparent necessity for his being upon the track at the time. His duties could have been as well performed from a secure position between the tracks. * * * There was nothing in the situation or circumstances attending the accident to exonerate or excuse appellant’s manifest carelessness and indifference to the danger of his position on the track, when struck by the tender.”

There may be a distinction between the case at bar and the flagman cases, where the flagman is an employe of the company operating trains over a crossing he is employed to guard. Even if there be such a distinction, we are of the opinion that under the latter contention urged by the defendant, the judgment must be affirmed.

In the case at bar it was the duty of the decedent to observe the approach of all trains; he had ample opportunity to see and hear the approach of the train in question; his work at the said crossing was dangerous ; the ordinary care he was bound to exercise was commensurate with the danger; the position he had taken upon the track at the time of the accident was very dangerous, and, so far as the record shows, voluntary and not necessary in the performance of his duties. Had the custom been to stop all eastbound trains before crossing Austin avenue, it might have been the duty of the court to submit the case to the jury, for then the decedent would have reason to believe that an approaching train would stop before running over the crossing, and if then in a place of danger, he would have sufficient opportunity to take a position of safety. But it is clear that it was the duty of the decedent to observe the approach of the train in question, whatever its speed. It being his duty to observe the train, and not knowing, in view of the custom claimed, whether it would stop or only slow down before crossing Austin avenue, we fail to understand how he might voluntarily and apparently unnecessarily take a position on the track where he would be certain to be run over by an eastbound train, not stopping, whether it ran at the usual rate of speed or at a reduced rate of speed. We think it manifest that the decedent failed to exercise ordinary care under all the circumstances; and under the rules of law mentioned he was guilty of negligence that proximately contributed to his death.

The judgment is affirmed.

Affirmed.


text:
    Equitable Trust Company of New York, Plaintiff in Error, v. Louis M. Cohn, Defendant in Error.
    Gen. No. 18,239.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John D. Turnbaugh, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed November 24, 1913.
    Statement of the Case.
    Action by Equitable Trust Company of New York, a corporation, against Louis M. Cohn to recover on a written instrument executed by defendant in which defendant promised to pay the balance of first annual premiums on .a life insurance policy. From a judgment for defendant, plaintiff brings error.
    Abstract of the Decision.
    This case held to be controlled by the decision in the Equitable Trust Co. of New York v. Harger, 258 Ill. 615, in which it was held that the same party as plaintiff was not entitled to recover on a similar writing, under similar circumstances.
    Percival Steele, for plaintiff in error; Harvey L. Cavender, of counsel.
    Edward H. Morris and T. Webster Brown, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.


text:
    Columbian Three Color Company, Plaintiff in Error, v. Aetna Life Insurance Company, Defendant in Error.
    Gen. No. 18,276.
    1. Indemnity, § 11

      —when conditions in policy for indemnity insurance waived. Where a casualty company after being notified pursuant to the terms of the policy takes charge of and conducts the defense of the assured, when it knows, or in the exercise of ordinary diligence should have known that the case was not covered by the policy, it waives the condition of the policy.
    2. Limitation of actions, § 66

      —when amended declaration sets up no new cause of action.. The amended declaration in an action on an indemnity insurance policy does not set up a new and different cause of action than that stated in the original declaration where the difference is only as to the dates stated in describing the policy sued upon which dates are merely descriptive of the policy and are laid under a videlicet.

    3. Pleading, § 432

      —use of videlicet. The use of a videlicet is to avoid a variance and to avoid a positive averment which must be' strictly proved.

      4. Limitation of actions, § 66

      —amended declaration filed after statute has- run. An action on a policy of indemnity insurance which provides that action thereon shall be brought within ninety days after the payment of loss or expense by the insured is not barred where the original declaration is filed within the ninety day period, though an amended declaration is filed after the period has elapsed, where the two declarations set up the same cause of action.
    Error to the County Court of Cook county; the Hon. W. F. Slater, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed November 24, 1913.
    McEwen, Weissenbach, Shrimski & Meloan, for plaintiff in error; Wade W. Meloan, of counsel.
    Robert J. Slater, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Smith

delivered the opinion of the court.

In a suit brought by the plaintiff in error against the defendant in error in the County Court of Cook county, the plaintiff below filed an amended declaration in which it averred, in substance, that on Nov. 10, 1906, for and in consideration of the sum of seventy-two dollars the defendant issued to the plaintiff an ‘ ‘ Employes Liability Policy, ’ ’ covering a period of thirty-six months, from November 10,1906, to November 14, 1909; that thereafter during the life of said policy an employe of the plaintiff, Jennie Fisher, brought suit against the plaintiff for damages for personal injuries and the defendant appeared therein and represented the plaintiff, in that suit being the defendant, and conducted the defense therein; that a verdict and judgment was there obtained by the said Jennie Fisher for one thousand dollars against the plaintiff herein; that thereafter the defendant herein refused to further make a defense in the said suit and disclaimed any liability to the plaintiff herein under the said policy; that this plaintiff thereupon paid the said judgment of one thousand dollars, and to recover therefor under the terms of the said policy brings its suit, etc.

The policy in question provided that “No action shall lie against the Company to recover for any loss or expense under this policy unless it shall be brought by the assured for loss or expense actually sustained and paid in money by him after actual trial of the issue, nor unless such action is brought within ninety days after payment of such loss or expense.”

The suit was begun and the original declaration herein was filed within ninety days of the payment of the said judgment and the said declaration averred that the suit was brought on a policy executed and delivered November 14, 1907, covering a period of twelve months from November 14, 1907, to November 14, 1908. The amended declaration was filed subsequent to the said ninety days and is substantially the same as the original except an averment of a consideration and differ- ' ent dates stated in describing the policy sued upon, more particularly mentioned hereafter. To the said amended declaration the defendant filed certain pleas of the statute of limitations, setting up the said facts and averring that the said amended declaration set up a new and different cause of action. To these pleas the plaintiff demurred and the court overruled the demurrers. The plaintiff electing to abide by its demurrers, the court entered judgment of nil capiat, to reverse which this writ of error is prosecuted.

To sustain the said pleas of the statute of limitations the defendant contends that the first declaration set up no cause of action, because there was no averment of a consideration for the issuance of the said policy, and further, that it appeared from the declaration- that the cause set up in the amended declaration was upon another and different policy than that set up in the original declaration as shown by the dates thereof and the periods of time covered therein. It is well settled that if the original declaration fails to state any cause of action, that a cause of action set up by an amended declaration after the running of the statute of limitations is barred, and that a plea of the statute of limitations to such amended declaration is good. So also is such a plea good to an amended declaration setting up a new and different cause of action than that set up in the original declaration when filed after the running of the statute of limitations.

The objection that the original declaration failed to state a cause of action, because there was no averment of a consideration would be good on demurrer; but it seems to us that the declaration clearly stated a cause of action, but defectively. It appeared from the pleadings that only one policy was issued by the defendant to the plaintiff and in force at the time of the accident to the said Jennie Fisher. That the amended declaration set up a new and different cause of action than that stated in the original declaration, we would agree, were not the dates in both of the said documents merely descriptive of the said policy, not of the essence of the issue, and laid under a videlicet. Bouvier says: “The office of the videlicet is to mark that the party does not undertake to prove the precise circumstances alleged; and in such cases he is not required to prove them.” In Brown v. Berry, 47 Ill. 175, the Court says: “The use of the videlicet is to avoid a variance and to avoid a positive averment which must be strictly proved,” and is quoted in an interesting discussion on the use of a videlicet in Rose v. Mutual Life Ins. Co., 144 Ill. App. 434, to which we refer; City of St. Charles v. Stookey, 85 C. C. A. 494,154 Fed. 772, and reference there made to volume 39 Am. Dig. (Cent. Ed.), §§ 1306, 1311. Also see 19 Cyc. Pl. & Pr. 251.

The defendant assigns cross-errors and contends that if the court should hold that the pleas of the statute of limitations were not good, nevertheless the judgment should be affirmed for the reason a good and lawful defense was interposed by it by certain pleas that in substance set forth that the said policy expressly provided: “This policy does not cover loss or expense arising on account of or resulting from injuries or death to, or if caused by (1) any person employed in violation of law, or any child under the age of fourteen (14) years where there is no legal restriction as to age of employment;” that on a trial of the said cause of Jennie Fisher against the plaintiff the jury specially found that said Jennie Fisher was under sixteen years of age and was employed by the plaintiff at the time of her accident “at employment which may be considered dangerous to the life or limbs of a child under the age of sixteen years,” and that such employment was in violation of the law, contrary to the statutes, etc., and contrary to the conditions of the said policy, etc. To these pleas the plaintiff filed replications in substance averring that the plaintiff, as required by the provisions of the said policy, gave notice to the defendant of the said suit, and rendered it all assistance in its power, etc.; that the defendant elected to defend said suit and did so defend same in the name of and on behalf of this plaintiff, at its own cost, etc.; that it then knew the grounds relied upon by said Jennie Fisher were that she was under sixteen years of age and employed at employment that might be considered dangerous, etc., and conducted the defense therein, detailing same to some extent, until after judgment was entered therein, when it disclaimed all liability under the said policy, and thereupon this plaintiff entered into negotiations with the guardian of said Jennie Fisher, etc., and thereafter paid one thousand dollars, etc. To these replications the defendant demurred and the court overruled said demurrers, which ruling the defendant claims erroneous, and by its cross-errors seeks to maintain its said pleas and thereby sustain the judgment.

It is stated in volume 11 Am. & Eng. Encyc. of Law, p. 13: “But the objection that a liability is not within the terms of the policy may of course be waived, and where the insurer undertakes the defense of the action by the injured party against the insured, with full information as to the character of the injury, it will be deemed to have waived the point that such injury was not one which would have entitled the insured to recovery,” citing certain New York cases. In Fairbanks Canning Co. v. London Guaranty & Accident Co., 154 Mo: App. 327, substantially the same provision contained in the policy in the case at bar was in the policy there under consideration and relied upon by the insurance company as a defense after it had undertaken to defend the insured, but before trial withdrew therefrom and disclaimed liability; and it was there held that the election of the insurance company to assume the liability was binding on it. To the same effect are Employers’ Liability Assur. Corp. v. Chicago & Big Muddy Coal & Coke Co., 73 C. C. A. 278, 141 Fed. 962; Steven v. Fidelity & Casualty Co., 178 Ill. App. 54; Tozer v. Ocean Accident & Guarantee Corp., 94 Minn. 478; Sanders v. Frankfort Marine Ins. Co., 72 N. H. 485; Globe Nav. Co. v. Maryland Casualty Co., 39 Wash. 299.

We think the foregoing authorities establish a general rule that if a casualty company being notified pursuant to the terms of the policy takes charge of and conducts the defense of the assured, when it knows, or in the exercise of ordinary diligence should have known, that the case was not covered by the policy, it waives the condition of .the policy. To hold otherwise would be to place the insured within the tender mercies of the insurer whose real object might be to establish its own defense of nonliability under a pretended defense of the insured. We think the trial court did not err in overruling the defendant’s demurrers to the plaintiff’s said replications.

For the reasons indicated the judgment is reversed and the cause remanded.

Beversed and remanded,


text:
    John Nedved and Meri Nedved, Defendants in Error, v. Court of Honor, Plaintiff in Error.
    Gen. No. 18,280.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Insurance, § 329

      —when incomplete answer is not waived. The rule that where an application for a policy of insurance contains an incomplete answer to a material question and the company does not call for a further answer but issues its policy the imperfection is waived, cannot be indulged where there is no evidence that the answers were incomplete.
    2. Insurance, § 753

      —when false statements of family history are material. Answers to questions in an application for life insurance in a fraternal benefit society, made part of the certificate, as to the number of brothers and sisters who are dead and also whether’ death was from consumption, if not warranties, are material representations, and being intentionally and knowingly false will defeat a recovery on the certificate.
    Error to the Municipal Court of Chicago; the Hon. Oscar M. Torrtson, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed.
    Opinion filed November 24, 1913.
    Statement of the Case.
    Action by John Nedved and Meri Nedved against Court of Honor, a corporation, to recover as beneficiaries on a certificate of membership issued to their daughter. From a judgment for plaintiffs for one thousand dollars, defendant brings error.
    Francis J. Sullivan, for plaintiff in error; William B. Risse, of counsel.
    Sabath, Levinson & Stafford, for defendants in error.

      See Illinois Notes Digest, Vois. XI to XIV, samp topic and section number,

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Smith

delivered the opinion of the court.

3.. Insurance, § 761 —when false answers are not waived by investigation. Where answers to questions in an application to a fraternal benefit society for insurance were knowingly and intentionally false, the fact that the society had in its employ one whose duty it was to investigate the statements of applicants and make recommendations pertaining thereto cannot avail plaintiffs suing on the certificate, in absence of proof that the investigator obtained knowledge of the decedent’s false statements.


text:
    Edward Hines Lumber Company, Appellant, v. John J. O’Heron et al., Appellees.
    Gen. No. 18,287.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed November 24, 1913.
    Statement of the Case.
    Bill by Edward Hines Lumber Company, a corporation, against John O’Heron and others to enforce a mechanic’s lien against the owner for lumber furnished as a subcontractor to a contractor. From a decree dismissing the bill for want of equity, complainant appeals.
    Adams, Bobb & Adams, for appellant; James B. Wescott, of counsel.
    Tinsman, Rankin & Neltnor and O’Donnell & O’Donnell, for appellees; Einar C. Howard, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

Abstract of the Decision.

Mechanics’ men, §• 24*—necessity that material be retained in the building. A subcontractor furnishing lumber to a contractor who uses it exclusively in the construction of moulds and forms for the erection of concrete foundations, removing the lumber after the concrete hardens, and none of it becoming part of the building, is not entitled to a mechanic’s lien against the owner.

Following Rittenhouse & Embree Co. v. F. E. Brown & Co., 254 Ill. 549.


text:
    Consolidated Ribbon & Carbon Company, Defendant in Error, v. Crane Company, Plaintiff in Error.
    Gen. No. 18,295.
    1. Municipal court of Chicago, § 28

      —when propositions of law are not necessary to a review. In an action in the Municipal Court of Chicago, propositions of Jaw neéd not be submitted in order to save questions of law for review.
    2. Sales, § 331

      —when purchase price not recoverable on countermanded order. Where on an executory contract of the sale of standard goods having a market value, the title, not passing, the buyer countermands the order before anything was done thereunder by the seller, the seller electing to keep the contract alive cannot tender the goods at the time for delivery and upon their rejection recover the purchase price therefor.
    Error to the Municipal Court of Chicago; the Hon. Thomas F. Scully, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed November 24, 1913.
    Ashcraft & Ashcraft, for plaintiff in error; Charles F. Rathbun, of counsel.
    Sabath, Levinson & Stafford, for defendant in error; Leo W. Hoffman, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Smith

delivered the opinion of the court.

The defendant in error, hereinafter called plaintiff, brought suit in the Municipal Court of Chicago against the plaintiff in error, hereinafter called defendant, for $127.50. The cause was submitted to the court, who found for the plaintiff and entered judgment for the amount claimed.

The facts are undisputed. On November 12, 1910, the defendant ordered from the plaintiff certain merchandise to be shipped to San Francisco January 3, 1911. On November 18, 1910, the defendant cancelled the said order, but the plaintiff, without any recognition of the withdrawal of the order, on January 3, 1911, shipped said goods to the defendant at San Francisco. The defendant refused to accept the same and held the merchandise subject to the plaintiff’s order. The evidence further showed that the said merchandise was standard goods and had a market value.

The plaintiff insisted upon payment of the order, and ■ the defendant refusing,- brought suit to recover the purchase price of the said goods.

The plaintiff first urges that no question of law can be considered here because no proposition of law was submitted to the trial court. The rule invoked does not apply to a review here of this judgment in the Municipal Court. Siegmund v. Strackbein, 140 Ill. App. 454; City of Chicago v. Bartels, 146 Ill. App. 180; Lanski v. Chicago & N. W. Ry. Co., No. 17,620 (June 30, 1913), ante, 181 Ill. App. 565.

The plaintiff’s contention is that it has the right to recover the purchase price of the said goods under the rule of law announced in Bagley v. Findlay, 82 Ill. 524; Lake Shore & M. S. R. Co. v. Richards, 152 Ill. 59; Osgood v. Skinner, 211 Ill. 229; Comstock v. Price, 103 Ill. App. 19; Olson v. Wabash Coal Co., 126 Ill. App. 253; International Filter Co. v. Hartman, 141 Ill. App. 239, as laid down in Ames v. Moir, 130 Ill. 582, on pages 591 and 592 as follows: “What are the rights of a vendor of goods where the vendee refuses to pay upon delivery or an offer to deliver goods? This question arose in Bagley v. Findlay, 82 Ill. 525, and this court held that the vendor had three remedies: First, the vendor may store the goods for the vendee, give notice that he has done so, and then recover the full contract price; second, he may keep the goods, and recover the excess of the contract price over and .above the market price of the goods at the time and place of delivery; third, the vendor may sell the goods to the best advantage,'and recover of the vendee the loss, if the goods fail to bring the contract price. The same rule is laid down in Benjamin on Sales (2d ed.), sec. 788.”

This is a general rule of law in this State. It appears, however, that there are certain situations in the application of the rule that make the case at bar clearly distinguishable from the cases relied upon by the plaintiff. In the case at bar there was a countermand of the order by, the defendant before anything was done thereunder by the plaintiff; the plaintiff declined to accept the withdrawal of the order; the contract was an executory one and the title to the goods did not pass; and, further, they were standard with a market value. That the plaintiff can recover damages is obvious. But the question here presented is, where the buyer repudiates a contract for the purchase of standard goods with a market value, before anything is done in performance of the contract, and the seller elects to keep the contract alive, can the seller at the time appointed in the contract for delivery tender the goods and upon their rejection by the buyer maintain an action for the purchase price thereof.

On an examination of the cases relied upon by the plaintiff it will be found that none present a similar state of facts to the case at bar. Here the order was countermanded; the contract was an executory one; the title to the goods did not pass .nor was the attempted execution of the contract by the plaintiff against the defendant’s previous express renunciation thereof such as to pass the title; and further, the goods were standard with a market value.

In Kadish v. Young, 108 Ill. 170, there is an interesting and exhaustive discussion of the rule for the measure of damages, which we think applicable to the facts in the case at bar. In that case there was a purchase of barley for future delivery. The day after the purchase the buyer repudiated the contract. The court held that the seller had the right to wait until the day for the delivery of the barley under the terms of the contract, and upon the buyer’s failure to receive and pay for the same to resell it on the market and recover the difference between the contract price and the market value on the day it was to have been delivered. In Thorn v. Danzinger, 50 Ill. App. 306, suit was brought to recover the purchase price of goods delivered after a countermand of the order. The Court there held such an action could not be maintained and said: “Sending the goods to the appellant against his will was no delivery that bound him to accept them. Contracts can not be specifically performed vi et armis.” Mechem on Sales, vol. 2, sec. 1092, in reference to the point in question says: “The contract is not rescinded but broken. While the other party has the right to deem it in force for the purpose of recovery of his damages, he is under no obligation for that purpose to tender complete performance, nor has he the right to unnecessarily enhance the damages by proceeding, after the countermand, to finish his undertaking. His remedy will be an action for the breach of the contract and not for goods sold or for labor and materials; and he is entitled to pursue his remedy at once, the direction of the defendant not to proceed being equivalent for this purpose to an absolute physical prevention by the defendant.”

Also section 1689: “Where, however, before the title has passed or the goods have been delivered, and also where, though the title had passed, the law permits the vendor to treat the contract as rescinded and the title as revested in himself, the remedy of the seller for the buyer’s neglect or refusal to accept the goods and pay for them is, not an action for the price, but an action to recover damages for the breach of contract. ’ ’

Also section 1699: “As has been already seen, one party to an executory contract has always the right, subject to the obligation to pay damages to the other, to stop the performance of the contract whenever for any reason he deems it to his interest to terminate it, and the other party is not at liberty to proceed, thereafter, with the performance in order to enhance the damages to be paid.”

In Acme Food Co. v. Older (64 W. Va. 255), 17 L. E. A. (N. S.) 807, the Court held, in an exhaustive discussion of the question, that there could be no recovery of the purchase price of the goods under an executory contract. In a note on page 808, “Eight of seller, upon breach of an executory contract, to maintain an action for the contract price,” is an interesting collection of cases to which we especially refer. See also 24 Am. & Eng. Encyc. of Law (2nd Ed.) 1113.

In the ordinary course of business it may seem necessary to a party to refuse to carry out the terms of a contract in order to protect himself from unusual losses, with a liability, of course, to the other party for the damages by him sustained. To hold that under ordinary circumstances, such as in the ease at bar, the measure of damages is the purchase price of the goods, would be to sustain an action not for damages, but to enforce the specific performance of the contract, which the courts, under well established rules, repeatedly decline to do.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Louis Weber & Company, Defendant in Error, v. Jacob M. Levine, Plaintiff in Error.
    Gen. No. 18,559.
    1. Chattel mortgages, § 54

      —when power of attorney does not give authority to execute acknowledgment. A power of attorney given to a certain person to make, execute and acknowledge a chattel mortgage will not authorize such person to execute an acknowledgment of a chattel mortgage made by the principal.
    2. Chattel mortgages, § 48

      —necessity of acknowledgment. Chattel mortgage not acknowledged pursuant to law is invalid as against bona fide purchasers of the property.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed.
    Opinion filed November 24, 1913.
    Rehearing denied December 8, 1913.
    Louis Greenberg, for plaintiff in error.
    Blum & Blum, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number»

   Mr. Justice Smith

delivered the opinion of the court.

The plaintiff, here the defendant in error, brought an action of replevin against the defendant, here the plaintiff in error, in the Municipal Court of Chicago to recover a certain diamond. The officer not recovering the diamond, the plaintiff declared in trover. The cause was submitted to the Court, who found in favor of the plaintiff and entered judgment for seventy-five dollars on the finding.

The action was based on a chattel mortgage given to the plaintiff signed by one Arnold A. Hartman in person and acknowledged by “Arnold A. Hartman by M. W. Bernstein, Attorney in fact,” and duly- recorded. The power of attorney to said Bernstein authorized and empowered him as said attorney “for me and in my name, place and stead to sign, seal, execute and deliver to Lonis Weber & Co., mortgagee, a chattel mortgage upon the goods and chattels this day purchased by me of said mortgagee and in my name, place and stead to appear before Clerk of 1st Municipal Court of Chgo. and duly acknowledge said chattel mortgage and cause the entry of the same. ’ ’

The defendant contends that under the said power of attorney, Bernstein was not empowered to acknowledge a chattel mortgage signed by Hartman, and the only mortgage that Bernstein could acknowledge thereunder was a specific chattel mortgage therein described, that is, a chattel mortgage signed by Hartman by the said attorney on certain goods that day purchased by the principal, Hartman. The trial court held the following proposition of law: “The court holds as a proposition of law that a power of attorney given to a person to make and execute a chattel mortgage, will not authorize the said person to execute an acknowledgment of a mortgage made by the principal (mortgagor) and a chattel mortgage so executed is invalid against bona fide third persons.”

The power of attorney was special, that is, limited to' the particular act therein described. It is well settled that a power of attorney is strictly construed. We think it apparent that the acknowledgment of the instrument in question was not within the power of attorney; also that the proposition of law quoted was properly held by the court. The chattel mortgage, not being acknowledged pursuant to law, was invalid and therefore no notice to the defendant, a bona fide holder of the diamond for value, so far as this record shows. The action being based upon the chattel mortgage and there being no right of recovery thereon, the judgment is reversed without remanding the cause.

Reversed.


author: Mr. Presiding Justice Baker

text:
    Maria Keller, Plaintiff in Error, v. Chicago Railways Company, Defendant in Error.
    Gen. No. 18,238.
    1. Carriers, § 329

      —when person alighting is still a passenger. Where a passenger in attempting to alight from a street car has one foot on the step of the car and has hold of an iron attached to the car to assist in alighting, he is still a passenger.
    2. Carriers, § 480

      —when question of negligence in suddenly starting cars, is for jury. Where a street car suddenly starts forward before a passenger alights, the question whether street car company was guilty of negligence in so starting the car is a question for the. jury.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed November 29, 1913.
    John T. Byrnes and Daniel Byrnes, for plaintiff in error.
    Edward C. Stearns and William H. Symmes, for defendant in error; John R. Guilliams and Frank L. Kriete, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice Baker

delivered the opinion of the court.

This writ of error brings before us the record of a judgment of the Municipal Court for the defendant on a directed verdict at the close of plaintiff’s evidence in an action of tort brought by plaintiff Keller against the defendant Street Railway Company.

The charge of negligence set out in plaintiff’s statement of claim is that she was a passenger on a northbound Halsted street car and notified the conductor that she wished to leave the car at Clybourn avenue; that defendant stopped the car at that avenue in front of a pile of dirt and bricks without informing' her of the unsafe condition of the place of alighting; that the same was known to the defendant and unknown to the plaintiff; that while she was alighting she held an iron attached to the car in one hand and stood on the step of the car; that she placed one foot on the ground, which struck said pile of bricks, turned her ankle and the car started forward suddenly and she was thrown from the car on the ground and injured.

"We think that the evidence fairly tends to show that the plaintiff had not entirely left the car at the time it was started forward, but then had one foot on the step of the car and had hold of an iron attached to the car with one hand for the purpose of assisting her in alighting, and if so, she was still a passenger. Chicago Union Traction Co. v. Rosenthal, 217 Ill. 458; Chicago & A. R. Co. v. Winters, 175 Ill. 293; Macdonald v. St. Louis Transit Co., 108 Mo. App. 374; Shearman & R. Negligence (6th Ed.) sec. 490.

The contention of appellee that a verdict for the defendant was properly directed because the evidence failed to show that the car was suddenly started is without merit. If the car was started forward suddenly while plaintiff was still a passenger, the question whether the defendant was guilty of negligence in so starting the car was at least a question of fact for the jury and not a question of law for the court.

We think the Court erred in directing a verdict for the defendant, and the judgment will be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Brown

text:
    Joseph M. Laughlin, Defendant in Error, v. William M. Hopkinson, Plaintiff in Error.
    Gen. No. 17,251.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Frauds, § 100

      —when evidence of other transactions, inadmissible. In an action for fraud and deceit practiced by defendant in selling a part interest in a store, evidence of sale by defendant to another held inadmissible to show fraudulent intention.
    2. Damaqes, § 153

      —when verdict excessive in action for fraud and deceit. In an action for damages resulting from false and fraudulent representations, a verdict for $20,000 held palpably excessive.
    Error to the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed November 29, 1913.
    Statement of the Case.
    Action by Joseph M. Laughlin against William M. Hopkinson to recover damages resulting from false and fraudulent representations made to plaintiff by defendant whereby plaintiff was induced to pay defendant six thousand two hundred dollars for a one-half interest in a clothing store. From a judgment in favor of plaintiff for twenty thousand dollars, defendant brings error.
    Charles B. Stafford, for plaintiff in error; A. N. Waterman, Thurman, Stafford & Hume and C. B. Haffenberg, of counsel.
    Mayer, Meyer, Austrian & Platt, for defendant in error.

         See Illinois Notes Digest, Vols. XI to XIV, same topic and section number,

   Mr. Justice Brown

delivered the opinion of the court.


author: Mr. Justice Baume

text:
    Oak Park Trust and Savings Bank et al., Defendants in Error, v. John A. Murphey, Jr. et al., Plaintiffs in Error.
    Gen. No. 18,181.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 625

      —time when writ of error must de drought. A decree foreclosing a mortgage and decreeing a sale is final and under R. S. 1911, c. 110, § 117, J." & A., If 8654, a writ of error to review it cannot be brought after the expiration of three yedrs from the date of its entry.
    2. Appeal and error, § 1198

      —what not revieioadle dy writ of error. A writ of error to review a decree of foreclosure does not bring before the court for review a subsequent order denying a motion by a defendant served by publication to file an answer to the original bill of foreclosure. -

      Error to the Circuit Court of Cook county; the Hon. Lockwood Honore, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Modified opinion filed and rehearings denied December 8, 1913.
    Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Bill of Oak Park Trust and Savings Bank, a corporation, Hiram Coombs individually and Hiram Coombs, as trustee, against John A. Murphey, Jr., Emily C. Murphey and H. Faulconer Jell to foreclose a deed of trust. From a decree of foreclosure and an order confirming a master’s report of a sale made in pursuance thereto, defendants bring error.
    John A. Murphey, Jr., Rae M. Royce and Peter J. Hower, for plaintiffs in error.
    Henry R. Baldwin and Henry R. Pebbles, for defendants in error; Charles L. Bartlett, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Baume

delivered the opinion of the court.

3. Appeal and error, § 866 —when abstract of record is insufficient. An abstract of record which is merely an index ‘does not comply with Rule 19 of the Appellate Court, first district, and is insufficient.

4. Appeal and error, § 1712 —when error is waived. Errors assigned but not argued are waived.

5. Mortgages, § 575 —time when decree may be vacated. Under R. S. 1911, c. 22, § 19, J. & A., If 899, the right of a defendant in foreclosure served by publication to question the propriety of the decree by filing a motion- for leave to answer the original bill of foreclosure must be exercised within three years after the entry of the decree.


author: Mr. Presiding Justice McBride

text:
    Susan Wells, Appellee, v. Lumaghi Coal Company, Appellant.
    1. Mines and minerals, § 136

      —when action is saved by general saving statute. Where a cause of action accruing under the Mining Act of 1899 was commenced before the repealing Act of 1911 (J. & A., ¶¶ 7475 et seq., went into effect, and the provisions upon which the action was based is not contained in the Act of 1911, the action does not abate and is saved by the general saving statute.
    2. Mines and minerals, § 138

      —When widow is proper plaintiff. Where a right of' action accrued to a widow under the Mining Act of 1899 immediately upon the death of her husband and suit was commenced by her under such act before the repealing Act of 1911 (J. & A., ¶¶ 7475 et seq.), making the personal representative the proper party plaintiff, went into effect, the action is saved by the general saving statute and is brought by the proper party plaintiff.
    3. Mines and minerals, § 108

      —place made dangerous by injured person must be marKed. If a dangerous condition is proved to be at any working place in a mine regardless of the object or purpose in producing such condition, then it must be marked, even though the condition may have been produced by the injured miner.
    4. Mines and minerals, § 108

      —when good faith is no defense. When a mine owner or operator is advised of the conditions in the mine, he must place in the mine, if it is dangerous, the statutory marks, and if he fails to do so, he acts at his peril and cannot excuse himself because he or his examiner or manager may think the mine safe.
    5. Mines and minerals, § 153

      —when evidence of conditions at time of injury is inadmissible. In an action based upon the Mining Act of 1899 for a failure to mark a working place as dangerous, evidence is inadmissible to prove that the conditions at the time of the accident were the usual and ordinary conditions, and the very conditions that the deceased miner was attempting to produce.
    6. Mines and minerals, § 182

      —when question of dangerous place is for the jury. Where a wedge shaped piece of coal left hanging from the face of a room as the result of a shot falls the next day and kills a miner who loaded and fired the shot when he was loading up the loose coal, whether the place is a dangerous place that should have been so marked is a question of fact for the jury.
    7. Mines and minerals, § 191

      —when instruction as to examination is misleading. In an action under the Mining Act of 1899 defendant’s instruction that there is no liability if the mine examiner examined a room before a miner went to work and the block of coal causing death appeared safe, and further that if the death was caused by decedent loosening the support of the coal, is misleading where the question is not whether the coal was liable to fall that day, but whether a dangerous condition existed, without reference to the time the danger would be precipitated or the circumstances that would transpire to cause its fall; the instruction is also objectionable because it improperly injects contributory negligence into the case.
    Appeal from the Circuit Court of Madison county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed June 10, 1913.
    Rehearing denied October 28, 1913.
    Wise, Keefe & Wheeler, for appellant; Mastín & Sherlock, of counsel.
    Geers & Geers, for appellee.

      See Illinois Notes Qigest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.

The plaintiff obtained judgment in the Circuit Court for three thousand dollars, to reverse which the defendant prosecutes this appeal.

On November 2, 1910, Daniel Wells, husband of the plaintiff, while engaged at work in room 5 off the first stub of the ninth north entry of defendant’s mine was killed by a fall of coal from the face of his room. On the day previous Bernard Cova and Daniel Wells, who were loaders and shooters, had been at work in this room, had placed some shots in the top and bottom of the face and fired them and as a result a lot of loose coal was thrown to the ground and a wedge shaped piece of coal, wider at the top than at the bottom, was left hanging from the face. It was resting upon some loose coal on the bottom and was hanging by the top on the roof and was standing out from the face. About one o’clock in the morning on November 2nd, Henry Sharden, the mine examiner for said mine, made an examination of this room and saw this lump of coal hanging at the face and said that he could see behind it but that he did not place any mark at it and put no danger mark in the room, and says that at the time he examined it if the bottom coal had remained it would not have fallen over from the position it was in. On the morning of November 2nd, the deceased and Cova began work in this room at about seven o’clock and were engaged in loading up the loose coal that had fallen on each side of the track, and in front of the hanging coal, up to about 9:30 o’clock when this lump of coal fell from the face and struck and killed Daniel Wells. At the time that he was killed he was about four feet from the side of the car and was shoveling coal into the car and at that time there were about three boxes of loose coal down on the side on which Wells was engaged at work that had not been loaded, and Cova says he was unable to tell whether Wells was disturbing the loose coal upon which this lump rested or not.

The plaintiff began this suit on the 7th day of March, 1911; the case was submitted to the jury on May 4, 1912, and judgment rendered on July 18, 1912.

The first count of the declaration charges that defendant had in its employ as mine manager one William Skully whose duty it was to see that all dangerous places above and below were properly marked and that danger signals were displayed wherever necessary. That the face in room No. 5 was then and there loose, dangerous and apt to fall and by reason thereof the place became and was then and there dangerous, and the defendant then and there wilfully failed and neglected to see that said dangerous place in said room No. 5 was properly marked and that danger signals were there displayed, and that while Daniel Wells was engaged in the performance of his work and loading coal in said room a large quantity of coal and other substance fell from the place aforesaid and killed the said Daniel Wells.

The amended second count, after setting forth the dangerous conditions in said room substantially as in the former count, then alleges that the defendant wilfully failed to comply with the requirements of the Mining Act in this, that it failed to provide a mine examiner at its said mine who then and there on November 2,1910, visited the mine before the said Daniel Wells was permitted to enter it, and inspected the same and inscribed on the walls of the working place the month and the day of the month of his visit, and the mine examiner did not place a conspicuous mark as notice to all men to keep out of said room where dangerous places then and there existed, and did not report his findings to the mine manager and did not report the dangerous condition existing in said room to said mine manager, and did not make a daily record of said dangerous condition'before Daniel Wells was permitted to descend into said mine, and that while Daniel Wells was at work a great quantity of coal fell from the face of the room and killed him; that Daniel Wells left surviving him Susan Wells, the plaintiff herein, who was dependent upon him for her support. To this the defendant filed the plea of general issue.

Appellant contends that there should not have been any judgment in this case for the reason that the statute was repealed at the time judgment was entered. It will be observed that the accident occurred on November 2, 1910, the suit instituted on March 7, 1911, and appellant claims that as the revision of the Miner’s Act that went into effect on July 1, 1911, (J. & A. ¶¶ 7475 et seq.) contained no provision placing any such duty upon either the mine manager or the mine examiner, as that alleged in either of the counts of the declaration and that as section 31 of the Act of 1911, (J. & A. ¶ 7505) expressly repealed the Act of 1899, under which this suit was brought, the court was without power to enter judgment against the defendant for the alleged negligent acts. In his argument he concedes that where provisions of the old act have been incorporated into the new act that a right of action might exist for the injuries accruing under the old act but insists that as there is no provision of the new act requiring of the mine manager and mine examiner to perform the duties charged in the declaration to have been neglected, and that as the old act was expressly repealed, plaintiff’s right of action for the alleged injury abated upon the taking effect of the new act.

It is also insisted by counsel for appellant, as its second point for reversal in this case, that as the Act of 1911, (J. & A. ¶ 7503 (c)) provides that in case of the loss of life by reason of the wilful violation of the statute a right of action accrued to the personal representatives of the person so killed, for the exclusive benefit of the widow and next of kin of such person, and to any other person or persons who were before such loss of life dependent for support on the person or persons so killed,. that suit cannot be maintained in the name of the widow for an injury that happened prior to July 1, 1911. Many authorities have been cited by counsel for appellant and appellee upon the effect of the enactment of the statute of 1911, as to whether actions accruing under the old act were to be continued and enforced under the old act or to be controlled by the new act only, and while there appears to be a wide difference in opinion between counsel for appellant and appellee upon these questions there has been, since this case was argued and submitted to this court, a decision of the Supreme Court in the case of Merlo v. Johnston City Coal Co., 258 Ill. 328, which as we think, conclusively settles these questions; the Supreme Court, after a careful examination of the rincipal authorities upon this question, including many of the cases cited by counsel in this case, determined that the old law remained in effect as to actions accruing under it, and on page 344 of the opinion says: ‘*We have no doubt that under our general saving statute all undetermined claims arising under the old Mining law, whether suit had been commenced or not prior to July 1, 1911, are saved, and that "the provisions of the old statute, so far as they concern the cause of action, are to be regarded,, as continuing until such cause is finally disposed of. There is, however, a difference between section 29 (J. & A. 7503) of the new act and section 33 of the o]4 act. These two sections relate to the subject of penalties for the violation of the respective acts * * * Any question that may arise as to the rights of different beneficiaries under the new statute is not in this case and we express no opinion in regard thereto.

Had this suit been brought after the new act became effective, for a death occurring before, undoubtedly the personal representative should have been made plaintiff, and had it been erroneously commenced in any other name the defect could have been cured in the trial court by an amendment, upon the point being properly called to the court’s attention. This suit was, however, brought by the proper plaintiff under the law as it then existed, and final judgment had been rendered in the trial court before the new law took effect.” It will be noted that in this case the suit was commenced before "the new act took effect, and, as we think, in the name of the proper plaintiff. Under the old act a right of action accrued to this plaintiff for her own use and benefit immediately upon the decease of her husband, and an action was commenced before the new act took effect and we think that this right of action that accrued to her under the old law is fully protected by the general saving statute which provides: “No new law shall be construed to repeal a former law, whether such former law is expressly repealed or not, as to any offense committed against the former law, or as to any act done, any penalty, forfeiture or punishment incurred, or any right accrued, or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued, or claim arising before the new law takes effect, save only that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding. If any penalty, forfeiture or punishment be mitigated by any provisions of a new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect. This section shall extend to all repeals, either by express words or by implication, whether the repeal is in the act making any new provision upon the same subject or in any other act.” (J. & A. ¶1105).

We are of the opinion that under this statute and the construction placed thereon by the Supreme Court, that the right of action accrued to this plaintiff and that the suit was properly brought in her own name.

It is next contended that the statute had no application to the conditions existing at the time of the accident, and, it is said, with much force, that it was the duty of Wells to shoot down the face of the coal that he might load it into the boxes and that as this was along the line of the purpose sought to be accomplished by Wells that it ought not to be regarded as a dangerous condition under this statute. This statute, however, is mandatory and prescribes that if any dangerous conditions exist in the mine that it is the duty of the mine manager to see that they are marked as such and not to allow any one to enter the mine to work therein except under the direction of the mine manager until all conditions shall have been made safe. What constitutes a dangerous condition is to be determined by the jury -upon the proof in each particular case. Aetitus v. Spring Valley Coal Co., 246 Ill. 32.

It is also said that the court erred in excluding evidence to prove that the conditions at the time of the accident wore the usual and ordinary conditions, and the very conditions that -.the deceased Wells was attempting to produce. In addition to what has been before said upon this question, as we understand the decisions of the higher courts in the construction of the-mining law, that if a dangerous condition is proved to be at any working place in the mine regardless of the object or purpose in producing such condition, then it must be marked even though the condition may have been produced by the miner. If it is present at the time of the examination by the mine examiner he must mark it as dangerous. He must by this process point out and assist the miner in seeing the danger. The miner under the statute is entitled to the benefit of the superior knowledge and experience of the officers charged with the duty of discovering such conditions in the mine, and- if this be true, then the object sought to be attained by such proof was immaterial and the court did not err therein.

Again, it is contended that there was no wilful violation of the statute, and in support of this counsel says: “Where it has made a bona fide examination of a room and has there found a condition that is not dangerous, has found a condition that would remain there for months, if left undisturbed by the workmen, the Company would not even be guilty of negligence in failing to give its servant a reasonably safe place to work.” As we understand the decisions of the Supreme Court, it lias finally said that whether or not a dangerous condition exists is to he determined by the jury, and, “If the mine is in a dangerous condition, and the owner or operator has failed, with knowledge of its condition, to comply with the statute, he is liable, and he cannot excuse himself on the ground that he had the mine examined and in good faith thought it was not dangerous. His liability does not rest upon the ground that in good faith or bad faith he thought there was no danger in the mine, but upon the ground that he has, knowing the facts which made the mine dangerous, failed to have the statutory marks properly placed in the mine. When the mine owner or operator is advised of the conditions in the mine he must place in the mine, if it is dangerous, the statutory marks, and if he fails to do so he acts at his peril and cannot excuse himself because he or his examiner or manager may think the mine safe. To so hold would be to permit the mine holder or operator, or his examiner or manager, to usurp the functions of the court and jury, and to pass upon the question which, in every case like this, is a matter of proof and is to be determined as a fact by the jury.” Aetitus v. Spring Valley Coal Co., supra.

The next error complained of is the refusal of the court to give defendant’s fourth instruction, which is as follows: “If you find from the evidence in this case that on the morning of the accident the mine examiner examined room No. 5 before Wells went to work, and that at such time the chunk or block of coal was supported by the coal from the bottom of the shaft and was not liable to fall in that day while so supported, and if you further find that it was the duty of Wells and his buddy to load the coal so shot in room five, and that in doing their’work of loading on the day of the accident, either Wells or his buddy loosened the support of the said chunk or block of coal causing it to fall, and that thereby Wells was caught thereunder receiving the injuries causing his death then the Company would not be liable in this case and you should find the defendant not guilty.” This instruction is misleading. The question for determination by the jury was not whether it was liable to fall that day but did a dangerous condition exist, without reference to the time the danger would be precipitated or the circumstances that would transpire to cause the fall. It also has the tendency to advise the jury that if the deceased by his own acts brought about the fall of the chunk of coal that this would relieve the defendant from liability; in other words, it is sought to inject into the case acts of contributory negligence which cannot be considered by the jury in determining liabilities under this statute.

The error assigned as to the fifth instruction has been disposed of in the former parts of this opinion and it is not necessary to discuss it further.

We are of the opinion that no substantial errors have been made in this case. That it was the duty of the jury to determine whether or not the place complained of was a dangerous condition, and the jury having so determined we can see no reason why the judgment should be reversed, and the judgment is affirmed.

Judgment affirmed.


text:
    Anna Sauter, Appellee, v. T. T. Hinde and J. C. Hinde, Appellants.
    1. Negligence, § 90

      -—effect of contributory negligence. A plaintiff who could reasonably, by the exercise of some act or precaution, have avoided an injury and failed to do so, cannot recover.
    2. Negligence, § 93*—when contributorily negligent to advance in dark place. Where a mature woman, unacquainted with a building, in visiting the office of a tenant on the second floor, mistakes a dark entrance to the basement as the desired entrance recklessly puts her foot out without feeling if there was a riser in front of her or lighting a match or doing any of those things which a reasonably prudent person would do before proceeding too far, and falls down into the basement, she is, as a matter of law, guilty of such contributory negligence as will preclude a recovery against the owner of the building.
    3. Negligence, § 198

      —when contributory negligence is a matter of law. Where there is no dispute about the facts concerning the care and caution of a woman entering a dark entrance in a building and the case rests solely upon her statements and the surrounding circumstances, which are not in dispute as to whether she was exercising such care, it is the duty of the court to determine as a matter of law whether she was contributorily negligent.
    4. Appeal and error, § 1699

      —when negligence as matter of law is not waived. Where a motion of a defendant to direct- a verdict' has been denied, the defendant submitting to the jury the determination as a question of fact whether plaintiff was contributorily negligent does not waive his right to raise such question on appeal as a matter of law.
    Appeal from the Circuit Court of Madison county; the Hon. George A. Crow, Judge, presiding. Heard in' this court at the October term, 1912.
    Reversed with finding of fact.
    Opinion filed June 10, 1913.
    Webb & Webb and D. G. Williamson, for appellants.
    Geers & Geers, for appellee.

      See Illinois Notes Digest, Vqls. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Yols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.

Judgment was rendered in the Circuit Court against the defendants for twenty-five hundred dollars, to reverse which they prosecute this appeal.

The appellee, Anna Sauter, was a resident of Chicago and had been on a visit with her son in Madison, Illinois, for a few days when she was attacked with the toothache'and was directed by a neighbor to go to one Doctor Bárnfield, a dentist, who kept his office in the second story of the Hinde building, Madison, Illinois. She had ascertained from this neighbor that she reached the doctor’s office through a stairway and not by an elevator. The Hinde building was located on Madison avenue and to reach the building from where she was visiting she walked south on Madison avenue toward the Hinde building. Before reaching the building she passed an open lot and from this point observed the sign of Doctor Barnfield on the window of his office, his office being lighted at that time; she proceeded on her journey south until she reached the northeast corner of the Hinde building; she was wholly unfamiliar with this building or its entrances, and the building entrances, as she says, were all dark. There were storeroom entrances, basement entrances and stairway entrances to this building. She attempted to pass into the first entrance that she observed which proved to be a storeroom and was closed. She then proceeded south passing the basement entrance to another entrance or opening which also proved to be a storeroom and was closed. This second entrance was probably from thirty to thirty-five feet south of the northeast comer of the building and was an entrance into a storeroom, which she also found closed and dark. She then retraced her steps north the distance of about ten feet when she observed another entrance to the building which was also dark; she supposed this to be a stairway leading to the second floor. She says there were no lights at any of these entrances and that it was dark and she was unable to observe the conditions when she approached them, but upon reaching the basement entrance she fancied she could see a stairway leading up and she says: “I stepped to the edge of the stairway, as I thought the stairway, and I fancied I could see the stairs leading up and I put my foot out and overbalanced myself and went down. I could not see anything over the stairway, there was no barrier, there was nothing at all, no light, it was just dark.”

It further appears from the evidence that the entrance to the basement was upon a level with the sidewalk and about seventeen inches inside of the property line and was without any guard and had at one time been used as a barber shop.

It further appears from the evidence that the stairway leading to the second floor was several feet further south and was reached through a door and was several feet in from the sidewalk. There were no lights in this part of the building and the only lights that were testified about were at each of the street crossings and about one hundred fifty feet or more from this building. The appellee, so far as is disclosed by the evidence, never saw this building before, had no idea of its arrangements or its approaches, or of the stairway leading to the upper floor. In falling she broke both of her arms, two fingers and was otherwise injured.

The declaration, after the formal parts, alleges that the defendants carelessly, negligently and wrongfully permitted the said entrance and stairway leading down through said opening and excavation into said basement from said sidewalk to be and remain then and there in an unsafe condition, in this, that the same was then and there uncovered, unprotected, unguarded, exposed and open, by reason whereof and on account of the negligence of the defendants as aforesaid the plaintiff who was then and there ignorant of said dangerous condition, and who was then and there in the exercise of due care and caution for her own safety, went upon said premises for the purpose of entering said second or upper story to visit said tenant of said defendants, mistook said entrance to said basement for the entrance to said second or upper story, and necessarily, unavoidably and unexpectedly stepped into such stairway leading down through said opening and excavation into said basement and was thereby then and there caused to fall down said stairway into said opening with great force and violence which resulted in an injury to the plaintiff, etc.

It is contended by counsel for appellants that the court erred during the progress of this trial in the exclusion of evidence, in the giving of an improper instruction and in the overruling of appellants ’ motions to direct a verdict and for a new trial. It is also claimed that there was no evidence of negligence upon the part of the defendants proved in this case and that according to the testimony of the plaintiff herself she was, as a matter of law, not in the exercise of due care and caution for her own safety.

It is insisted by counsel for appellants with much force, that conceding the appellants rented the second story of its building to Doctor Barnfield for a dentist office, and that by reason thereof an invitation was extended to the public to visit his office, that it further appears appellants prepared a means or stairway through which such persons should visit this office and that because the plaintiff mistook the place of entrance and by such mistake undertook to pass into the basement that the appellants could not be held liable for such mistake; that she was only invited to the see-1 ond story by an ample stairway and that she was notil invited in any other manner; that this case is wholly' different from that class of cases where a person is directed to proceed in a particular mode, accidently steps off into an excavation, jostled or knocked off the sidewalk into an excavation or by sudden peril to seek escape inadvertently steps or falls into such excavation; that the real cause of the injury was the mistake of appellee in selecting the place for approaching the doctor’s office and not the negligence of appellants in the preparation of a safe approach. There is 'much force in this contention but it was as necessary for the appellee to prove that she was in the exercise of due care and caution for her own safety as to prove the negligence of the appellants, and waiving this contention as to such negligence, we are of the opinion that the appellee was not exercising reasonable care and caution for her own safety in attempting to reach Doctor Barnfield’s office. There is no dispute about the facts concerning her care and caution ancl the case rests solely upon her statements and the surrounding circumstances, that are not in dispute, as to whether she was exercising such care, and under such state of facts it becomes the duty of the court to determine as a matter of law as to whether she was in the exercise of such care. The appellee was wholly unacquainted with the building in question, the means provided for approaching that part of the building which she desired to visit and under such circumstances in the nighttime unaccompanied by any one acquainted with the premises approached the building, found it dark, unable to discover the entrance, first and secondly attempted an entrance through storeroom doors and found them closed and everything dark, then retraced her steps and without being able to see that it was a stairway, rushed, as we think, recklessly into danger without stopping and exploring the, place, either by reaching down and feeling to see if it was .a stairway, or carefully extending her foot tel feel if there was a riser just in advance of her, or lighting a match or doing any of those things which i a reasonably prudent person would do before proceeding too far, advanced to the opening without hesitating for more than one second, raised her foot as if to put it on the stairway, lost her balance and went down. If, owing to the darkness, she was unable to perceive that the place she was about to enter was a stairway then it seems to us only reasonable that she should have refused to proceed further until she determined with some degree of certainty the kind of a place she was about to enter. In her examination in chief she says: “In Chicago the first stairway would be the stairway to go up and I stepped to the edge of the stairway and there was a store on the comer that was closed by the Sheriff, there was no light in the store and no light in the basement, and I stepped one foot out, I was sure that I felt, I was sure I was going up stairs. I could not see the stairway because it was quite dark and I put my foot out and lost my balance and went down to the basement. I first discovered that there was a stairway leading to the basement instead of a stairway leading np when I went down. Well I stepped to the edge of the stairway, as I thought the stairway, and I fancied I could see the stairway leading up and I put my foot out and overbalanced myself and went down. I could not see anything over the stairway, there was no barrier, there was nothing at all, no light, it was just dark.” And then on cross-examination she further says: “I don’t think I stopped any time before I went to reach my foot up, I just went there, reached my foot out, I stopped long enough to reach my foot out to see if I was sure; it may have taken a second or two, just long enough to reach my foot out and lose my balance.” And in demonstrating it she further said: “I just reached my foot out this way (indicating) as though I was going to reach up, you know, I held my foot up this way about a second and went down forward. ’ ’ She was of mature years, forty-nine years old, and it seems to us ought to have had discretion enough not to have hastily plunged into a place in the dark that she knew nothing about. It is said in the case of Kammerer v. Gallagher, 58 Ill. App. 561: “From three o’clock in the afternoon until ten o’clock at night of the 8th day of September, 1891, the appellee spent the hours with a party of friends in the front room of the first story of one of the houses. He boarded there. He had never been up or down the steps, but had seen people going into, or coming out of the passage. At ten o’clock he wished to go to the rear of the premises without, for a sufficient reason, going through the house. Without any precaution he walked into the passage, which was dark, and by reason of some break in the steps, fell, and has recovered for the injuries alleged to have been sustained by the fall. The law of this State has, after a long deviation, returned and now holds ‘as a condition to recovery by the plaintiff that the person injured be found to be in the exercise of ordinary care for Ms own safety. L. S. & M. S. Ry. Co. v. Sessions, 150 Ill. 546. Ordinary care is that care which a reasonable prudent and cautious man would take to avoid rnjury, under like circumstances. C. & A. R. R. v. Adler, 129 Ill. 335. No prudent and cautious man, not escaping from danger, would in the night plunge into a dark passage way between dilapidated houses, either with knowledge that steps whose condition was unknown to him went down, or with no knowledge of what was there.” It is said in.Sherman & Redfield on Negligence, par. 188: “But no one is exempt from the obligation of observing where he is going, especially in the parts of the premises not intended to general use to which he is not invited. In entering or leaving the building the visitor is bound to use the ordinary customary place of ingress and egress and if he adopts some other way he becomes a mere licensee and cannot recover for defects outside of or not substantially adjacent to the ordinary way.” The case of Piper v. New York Cent. & H. R. R. Co., 156 N. Y. 224, the Court said (p. 230): “The plaintiff was guilty of contributory negligence, in utterly failing to use that prudence which was specially incumbent on him under the circumstances of the situation. The darkness called upon him to use it and had he done so, the accident could not, within any reasonable probability, have happened. A person, whose power of vision is temporarily obstructed 1 by some supervening condition, should take the' greater care and should, if it be possible, await its passing away. If he neglects to proceed cautiously, he must accept the consequences of his undue precipitation.”

The holding in the case last above cited was approved in the case of Bentley & Gerwig v. Loverock, 102 Ill. App. 166. It was also said in the case oí Be-dell v. Berkey, 76 Mich. 435: “He then went to the middle door and opened it, and when he closed it he found himself in what he called a darkish room, not altogether dark. He says: I saw a little light shining through here, ahead of me, just a dim light, and I walked up here, I saw this light, took it to be an opening between the door, between the two sections, the middle and the north sections. I turned to my right, and as I supposed, was going through into this department through a door, and I stepped into a hole.’ * * * It was his business if he found it obscure to wait until his eyes got accustomed to the light before moving around at haphazard. * * * He is himself responsible for his own misfortune, and made out no case for redress.”

It is also said in the case of Swift & Co. v. McInerny, 90 Ill. App. 294: “It thus appears from appellee’s own testimony that after dark, in a strange place, with a lantern in his hand unlighted, he took no notice of where he was going—did not look down to see whether there was a ladder or other means of safe egress—but walked directly out of a window which he knew was twenty feet or more from the ground, without taking any notice as to where he was going, and fell and was injured. That was certainly contributory negligence, and for that reason, if for no other, the law will not permit him to recover in this case.”

It is said by counsel for appellee that because appellant procured instructions submitting to the jury the determination as a question of fact whether or not appellee was in the exercise of due care and caution that they cannot on appeal raise the question of contributory negligence as a matter of law, and cites in support of that contention the case of Chicago Terminal Transfer R. Co. v. Schmelling, 197 Ill. 619. The doctrine laid down in this case has not been approved by the later decisions. In the case of Illinois Cent. R. Co. v. Swift, 213 Ill. 307, the Court says, that the procuring of instructions submitting to the jury the matter of due care and caution as a question of fact does not waive an exception that preserves this question as one of law to be considered by the Appellate tribunal, and holds that so far as views expressed in the case of Chicago Terminal Transfer R. Co. v. Schmelling, supra, are inconsistent with the views herein expressed, that they were not necessary to the disposition of the question then before the court. And in a later case of Wallner v. Chicago Consol. Traction Co., 245 Ill. 148, the Court holds that a defendant does not waive its right to question the sufficiency of the evidence to constitute due care as a matter of law by submitting instructions upon such to the jury where there has been an adverse ruling by the trial court in a motion to direct a verdict, which was made in this case. Numerous other authorities might be cited in support of the proposition herein announced, but it is sufficient to say that it is the universal rule that where a plaintiff could reasonably, by the exercise of some act or precaution, have avoided the injury and failed to do so that they cannot recover.

While we realize that it was an unfortunate mishap to the appellee and that she has by reason thereof been somewhat injured and has incurred considerable expense, yet we do feel that she could by the exercise of a reasonable degree of care have avoided the accident.

We are of the opinion that the plaintiff was not in the exercise of reasonable care and caution for her own safety at the time she was injured and for that reason she is not entitled to recover in this suit, and the judgment of the lower court is reversed.

Reversed with finding of fact.

The Court finds as a matter of fact that the plaintiff was not, at the time of her injury, in the exercise of due care and caution for her own safety.