text:
    Alfred Libre, Appellee, v. Brotherhood of American Yeomen, Appellant.
    Gen. No. 5571.
    1. Evidence — what competent upon question of age. Witnesses who have known a person long enough to form an opinion as to her age are competent to give that opinion and it is then for the jury to determine what weight said opinion is entitled to under all the surrounding facts and circumstances.
    2. Featernai, benefit societies — when proofs of death competent. Proofs of death are competent in an action on a benefit certificate where such certificate required that the beneficiary should make such proofs before recovery could be had.
    3. Featernai, beneeit societies — competency of statements of insured. There is a well marked distinction between what are known as “old line” policies and fraternal insurance policies; while in actions upon the former statements and admissions by the insured may be incompetent yet in actions upon the latter they are competent and should be received to bind the beneficiary.
    Assumpsit. Appeal from the Circuit Court of Lee county; the Hon. Richard S. Fareand, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed April 25, 1912.
    John D. Denison, Jr., and Truesdell, Smith & Leech, for appellant.
    Brooks & Brooks, for appellee.
   Mr. Justice Morton W. Thompson

delivered the opinion of the court.

On May 9, 1907, appellant issued to Marie C. Libre its benefit certificate for $2,000 payable to her son, the appellee, under proof of her death. She died May 27, 1909, and proof of death was made in due time, and upon refusal of the defendant to pay the amount, this suit was brought, which resulted in a judgment in favor of plaintiff and against defendant for $1,650.58 and costs, and the defendant appealed and assigns errors.

Plaintiff’s original declaration consisted of one special count on the benefit certificate, and the common counts. Defendant’s demurrer was overruled to the declaration and it filed nine pleas; and a demurrer was sustained to each of them except the first, on which issue was joined, and it elected to stand by its second, fourth and eighth, and amended each of the others, and filed two additional pleas. A demurrer was sustained to the first additional plea, and defendant elected to stand by it. Plaintiff replied to defendant’s first, third, fifth, sixth, seventh amended, and second additional pleas, making general denial, and defendant joined issue. The only errors complained of on the pleadings are in sustaining plaintiff’s demurrer'to the fourth original and first additional pleas. These were substantially alike, and alleged that the deceased understated her age ten years in her written application for said certificate. We think no harm was done appellant in sustaining the demurrers to these pleas, as other pleas upon which issue was joined, alleged the same matter.

The first amended plea was the general issue sworn to denying power of defendant to execute the benefit certificate sued on. The ninth amended plea set out the law of Iowa, under which the defendant was incorporated, and its charter, and alleged its want of power thereunder to accept persons over fifty years of age, and that deceased was at the time she made such application over fifty years of age. The second additional plea alleged decedent’s understatement of her age in her written application was a fraudulent misrepresentation.

The only evidence introduced or offered on the trial by the defendant was its charter and by-laws, and upon the question of decedent’s age.

It is undisputed that Marie C. Libre, or Lebre as it is sometimes spelled in the record, the assured, was born in France, and with her husband and their children then living, came to this country in 1882, and located in Dixon, Illinois, where she lived until her death on May 28, 1909. It is not denied that Marie C. Libre had paid all dues and assessments promptly, and was in good standing in said society at the time of her death.

Appellant insists that the trial court erred in permitting witnesses who had known the deceased for several years to testify as to their judgment of her age. We think this testimony was properly admitted. Witnesses who have known a person long enough to form an opinion as to her age, are competent to give that opinion; and it is then for the jury to determine what weight said opinion is entitled to under all the surrounding facts and circumstances. People v. Davidson, 240 Ill. 191; Wistrand v. People, 213 Ill. 72; Elsner v. Sup. Lodge K. L. H., 11 S. W. Reporter, 991.

It is also insisted that the trial court erred in admitting in evidence the proofs of death filed with the defendant. Under the terms of the certificate, plaintiff was required to make such proof before he would be entitled to recover the amount due thereon. His declaration alleged that he had made such proof, and it was therefore, incumbent upon him to prove that allegation. Benefit Ass’n v. Hoffman, 110 Ill. 603; Railway Cond. Ass’n. v. Robinson, 147 Ill. 138; Knickerbocker Ins. Co. v. Gould, 80 Ill. 388; Knights Templar & M. L. Ins. Co. v. Crayton, 110 Ill. App. 648.

The defendant offered in evidence written applications of the deceased for insurance upon her own life in two other companies. In one dated February 23, 1901, she stated that she was born in France, November 6, 1853; and in the other, dated May 9, 1907, that she was born in France November 6, 1859. The application for the certificate sued on in this case is dated May 1,1907, and in it she states she was born in France November 6, 1857.

We have been referred to numerous authorities by counsel, upon the question of the admissibility of statements and admissions of the insured. There is, however, a well marked distinction between what are known as old line policies, and what are known as fraternal insurance policies. Brown v. Mystic Workers, etc., 151 Ill. App. 517; Nat. Union v. Hunter, 99 Ill. App. 146; Van Frank v. U. S. Masonic B. Assn., 158 Ill. 560.

These applications were signed by her, and therefore presumably her statement. • We think they should have been admitted in evidence for the consideration of the jury in connection with all the facts and circumstances attending their execution. Counsel refers us to the rule announced in the case of Court of Honor v. Dinger, 123 Ill. App. 406, affirmed in 221 Ill. 176, to the effect that declarations and admissions of the insured are admissible in a suit by the beneficiary against an insurance company only when made at or near the time of making the application. That is no doubt true as to a condition of health, etc., which may be good at one time and very poor at another; but the applicant’s birthday does not change, and presumably she knew that date well, if not better at an earlier time than at a later one. It will be noticed that the first application was signed over six years before the one sued on, and the other eight days after. It will also be noticed that the date of her birth is given differently in each of the three applications.

Appellee testified that he was present when his mother signed the application for the certificate sued on, and that in answer to the questions as to her age, she told Price, the agent of appellant who wrote it, that she did not know her age, but that she was about forty-nine; that she did not read it and it was not read to her, but that Price after filling in the blanks, asked her to sign her name to it, which she did, and he took it away with him. Price was not called as a witness.

In view of the closely contested question as to the age of the deceased, we think it was reversible error to sustain appellee’s objection to the introduction of the applications offered in evidence; and for that error the judgment of the trial court will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Willis

license: Public Domain

text:
    Belle Kinkaid, Appellee, v. William L. Kinkaid, Appellant.
    Gen. No. 5497.

      Divobce — what essential to establish impotency. In order to establish. the right to a decree of divorce on the ground of impotency such impotency must be established by a preponderance of the evidence.
    Divorce. Appeal from the Circuit Court of Warren county; the Hon. R. J. Gbieb, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed.
    Opinion filed October 13, 1911.
    Rehearing denied April 11, 1912.
    Hanley & Cox, for appellant.
    D. C. Miller and R. C. Hunt, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

This was a suit for divorce, brought by Belle Kinkaid, the appellee here, against her husband, William L. Kinkaid, to the May term, 1910, of the Circuit Court of Warren county. The ground upon which a divorce was asked was impotency on the part of the said William L. Kinkaid, both at the time of the marriage and since then. The defendant, appellant here, filed an answer denying the impotency; a jury trial was had, in which a verdict was returned finding the issues for the complainant, and, after overruling appellant’s motion for a new trial, the court entered a decree granting appellee a divorce on the grounds alleged. After a further hearing, in which evidence was heard as to the financial condition of appellant, the court entered a further order allowing appellee the sum of $1,550 as alimony. Appellant thereupon prayed an appeal to this court, which the trial court granted, after allowing the appellee a further sum of $100 to be paid by appellant as attorney’s fees for appellee in case of an appeal.

Appellee testified that, since her marriage with appellant in 1900 he had never occupied the same hed with her, except on occasions when they were visiting, and that he had never had sexual intercourse with her on any occasion since said marriage. She was corroborated to some extent by her two daughters by a former marriage. Two physicians testified for appellee as experts that, judging from the conditions testified to by appellee, the appellant was impotent. On the other hand, appellant testified positively that he had occupied the same bed with his wife on many occasions and had often had intercourse with her and that he was not impotent and never had been. She testified that she was doctoring for female weaknesses, and he testified that she was very ardent and that he attributed her female troubles to excessive sexual intercourse and that he suggested to her that she exercise moderation till she got well, or that she have a child; and she refused to bear a child. Two physicians testified for appellant, after examining him, that his organs were normal in every respect, and that there was nothing revealed by such examination which tended to show that he was impotent or ever had been.

We are of the opinion that the preponderance of the evidence is in favor of appellant and that it would be unjust to allow this decree to stand. The evidence of the two experts who testified for appellant after having made a physical examination of him, with reference to this suit, is entitled to more weight here than that of appellee’s experts who made no examination but relied upon the evidence of appellee apd her daughters as a basis for their expert conclusions. So far as the question of impotency, raised here, is of a medical character, to be determined by medical experts, we consider that the evidence of that character offered by appellant is much more conclusive than that offered by appellee. The evidence of appellee herself, to the effect that her marriage with appellant had never been consummated, is positively contradicted by appellant, and, while appellee is corroborated to some extent by other evidence, we cannot say that the preponderance of evidence on that point is in her favor. In our judgment, there is no preponderance of evidence that appellant is or ever has been impotent, but the greater weight of the evidence on that subject is with appellant, and a decree of divorce on that ground should not have been granted. Appellee introduced evidence tending to show that appellant was insane, which evidence appellant contradicted, but insanity is not alleged in the bill and is not a ground for divorce. For the reasons above set forth, the decree is reversed.

Reversed.


text:
    Andrew Placek, Appellee, v. Marquette Third Vein Coal Mining Company, Appellant.
    Gen. No. 5523.
    1. Verdicts — when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    2. Verdicts — when excessive.' Held, in an action on the case for personal injuries, that a verdict for $2,000 was excessive where it appeared that the injuries were slight except as to the plaintiff’s wrist in which no bones were broken.
    3. Instructions — how to be construed. Instructions are to be construed as a series, and the omission of one may be supplied by the contents of another.
    Action in case for personal injuries. Appeal from the Circuit Court of Bureau county; the Hon. R. M. Skinner, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed on remittitur.
    Opinion filed March 13, 1912.
    Cía mo A. Trimble, for appellant.

      R.. L. Russell and Johnson & Belasco, for appellee; Joel Baker, of counsel.
   Mr. Justice Willis

delivered tie opinion of tie court.

TIis is an action brought by Andrew Placet against Marquette Third Vein Coal Mining Company to recover for damages for injuries received by him on July 13,1909, in tie mine of tie company at Marquette, in Bureau county. Tie declaration, as amended, contained six counts, each of which alleged that tie defendant owned and operated tie mine in question, that tie accident occurred on July 13, 1909, and that plaintiff was in tie exercise of due care at tie time of tie accident. Tie first count further alleged that defendant so negligently drove its certain cars in said mine as to collide .and jump tie track and injure tie plaintiff. Tie second count alleged that defendant ’negligently permitted certain cars on a side track in said mine to project over onto tie main track so that cars on said main track collided with such projecting cars, whereby certain cars jumped tie track and injured plaintiff. Tie third count alleged that defendant negligently drove a train attached to a motor on tie main track in said mine, while a car was projecting from a switch onto tie main track thereby causing a collision and injury to plaintiff complained of. Tie fourth, fifth and sixth counts were practically tie same as tie first, second and third, respectively, except that it was alleged in tie three latter counts that plaintiff was in tie mine by invitation of defendant, while in tie first three it was alleged that he was there as an employee. Defendant below filed a plea of not guilty and, upon a jury trial, there was a verdict in favor of plaintiff for $2,000. Motions for a new trial and in arrest of judgment were overruled and judgment was entered upon tie verdict, from which tie defendant below appeals.

Andrew Plaeek had been a coal miner for about nine years and had worked for appellant in the Marqnette mine' a number of years before the accident, although not employed by appellant just prior to that occurrence. On the morning of July 13, 1909, appellee who was a certified miner, with his son, who had no certificate, and several other men, went down the shaft of the Marquette mine to the bottom and then went north in one of the entries of the mine about half a mile to a point near the entrance of the tenth west entry. A railroad track had been laid through the bottom of this mine and at the tenth west entry, where these men stopped, there was a side track capable of holding about 22 cars. At this point the men placed themselves against the wall east of the side track, where there was a sufficient clearance so that they were in no danger of being struck by cars passing along the side track. At this date one O’Bierne was mine manager and one Flood was his assistant for the north part of the mine. A trolley wire had been strung in this part of the mine and a motor car was used for hauling in empty cars and for hauling out loaded ones. About the time the men referred to above, including appellee and his son, had located themselves alongside the wall of this entry, Flood ran a number of empty cars in on this switch with the motor, where he left them. He then passed out on to the main track, hitched onto some loaded cars standing there and hauled them out to the bottom of the shaft. Flood repeated this operation with another string of loaded cars and then turned the motor over to a substitute motorman, the regular motorman not being at work that day. Toner, the substitute motorman, then proceeded to haul another string of loaded cars out to the bottom of the shaft but in doing so, as the string of loaded cars was passing by the end of the switch track, it struck the empty car nearest the main track and threw it off the track and upon appellee, who was crushed between it and the wall and was injured thereby.

On numerous questions of fact the evidence is conflicting and the jury would have heen justified in finding for either party. Appellee claims that he called upon Flood the assistant mine manager, the night before the accident and asked for work and that Flood told him to come to the mine the next morning with his tools and he would be put to work. There is proof on the other hand that Flood did not hire appellee or offer to start him at work, but that Flood told him to see O’Bierne, whom the men called “the big boss”. Flood testified that O’Bierne alone had authority to hire men. There is other evidence to the effect that when appellee reached the bottom of the shaft, he inquired for “the big boss” and, upon being told that he had gone north in the entry, started off in that direction, which, if true, would indicate that appellee was hunting for O’Bierne and was waiting at this particular place to ask him for a job. There is other proof to the effect that Flood did, in fact, hire men and put them to work without sending such applicants to “the big boss” at all. There is proof that whenever a string of cars was being hauled into or out of this entry, an employe of the company, called a “trip rider” rode on the end of the train farthest from the motor; that on the first trip made by Flood with the motor and a string of cars past the place where appellee and other men were standing or sitting alongside the wall, the trip rider told these men they were in a dangerous place and that they should go into the tenth west entry, where they would be safe; and that thereupon all of these men, except appellee and his son, went into the tenth west entry as directed. There is other proof that this was not addressed to anybody in particular and that it was not heard by appellee or his son. There is proof that a dozen of the loaded cars had passed the south end of this switch before the empty car was struck and thrown over upon appellee, which would tend to show that it was an unaccountable accident, for which appellant would not be liable. There is other proof that it was the first loaded car which struck the empty car and caused appellee’s injuries and this, if true, would prove that when the empty cars had been placed on the switch, they had been allowed to stand too near the main track to permit a loaded car to go by them. If this situation really existed, it should have been seen by the switchman employed by the company, before he threw the mechanism which closed the switch and before he signaled the motorman to pull out this string of loaded cars, and his failure to notice such a condition of things would be negligence for which appellant would be liable.

Upon these and numerous other disputed questions of fact the verdict of the jury, approved by the trial judge, finds such a support in the evidence that we do not feel at liberty to set it aside. In our judgment, the jury were warranted in finding that appellee was a servant of appellant and was waiting at the place where he was hurt by direction of the assistant mine manager until such assistant was ready to set him ’to work and that said assistant left the motor at that point after his third trip for the purpose of finding work for the men waiting there, but, if there was not sufficient proof to establish that appellee was a servant of appellant, still he certainly was in the mine with the knowledge and by the direction of those in authority there and was not a trespasser. Appellant claims that appellee was not in the exercise of due care for his own safety at the time he was injured and that his injuries were caused by his own contributory negligence, but that position is not sustained by the evidence. The proof clearly shows that appellee would not have been struck by this car or injured in any way, if the loaded ear on the main track had not collided with the empty car and forced it from the track, as there was an ample clearance between appellee and the cars on the switch track. Appellee cannot be-blamed for the collision and, if the trip rider was fully satisfied that appellee was in a dangerous position, he should not have allowed the cars to be moved until appellee had been removed from such position.

Appellant complains of the action of the court upon the instructions in refusing some and modifying others requested by it and in giving instructions for appellee. We deem it unnecessary to set out the instructions and discuss each point made. We think it sufficient to say that, upon an examination of the entire charge, we find that every proposition to which appellant was entitled was given to the jury.

In one respect the judgment does not meet with our approval. We consider that the damages awarded are excessive, in view of the nature and extent of appellee’s injuries. Except as to his wrist, his injuries were slight and detained him from his work a comparatively short time. He was in the hospital but a very few days and was confined to his house thereafter a very short time. His wrist was injured but no bones were broken. There seems to have been some injury to the tendons of the wrist and appellee claims that he cannot use that wrist, the left one, as well as before the accident and that, as it is necessary to use both hands equally in mining coal, the amount of work he can do now has been much lessened and his means of livelihood much impaired. He claims that since returning to work after the accident, he has been able to earn only about half as much as before the injury, but the books of the company for which he was working before the accident and those of the company which has employed him since that time, introduced in evidence, show that he is now earning practically as much as he did before he was injured. In our judgment the injury to the wrist is altogether too light to justify so large a verdict,

This opinion will, therefore, be lodged with the clerk of this court and counsel notified thereof. If counsel for appellee shall file a remittitur of $1,000 within seven days thereafter, the judgment will be affirmed in the sum of $1,000 at the costs of appellee; otherwise, the judgment will be reversed and the cause remanded.

Affirmed on remittitur.

- Appellee having afterwards filed a remittitur herein in the sum of $1,000 the judgment will be affirmed in the sum of $1,000 at the costs of appellee.


text:
    Joseph Gebke, Appellee, v. R. L. Wilson et al., Appellants.
    Gen. No. 5545.
    1. Appeals and errors — effect of failure of justice to return summons etc. Whilé it is the duty of a justice of the peace to return the summons and other papers with the bond and transcript to the Circuit Court a failure to discharge that duty does not deprive that court of jurisdiction to hear and determine the case on its merits.
    2. Justices op the peace — function of transcript of justice on appeal. The justice’s transcript performs the office of the declaration in original suits in courts of record.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Peoria county; the Hon. L. D. Puterbaush, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    Sheen & Davdd, for appellants.
    Robert N. McCormick, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Appellee sued appellants before a justice of the peace of Peoria county, and on October 6, 1910, appellants obtained a judgment against Mm. The case was appealed to the Circuit Court of said county. On March 13,1911, the case was set for trial the following day. When reached on the call a jury was impaneled, the evidence heard in the absence of appellants and their counsel, and on the direction of the court, the jury returned a verdict for appellee. Judgment was entered thereon March 16, 1911. March 31, 1911, appellants made a motion supported by affidavits to vacate the judgment, set aside the verdict and grant a new trial. The court overruled the motion. Appellants excepted and perfected this appeal.

The only assignments of error based on the suggestions made in the affidavits that we deem necessary to consider are: that the court lacked jurisdiction to hear the case at the March term, 1911, because the justice summons and certain other papers were not filed with the clerk of the Circuit Court 10 days before the first day of that term; that neither appellants nor their counsel knew that the case was set for trial until after judgment was entered.

In the matter of such appeals the proceedings in the Circuit Court are based on the transcript. Reed v. Driscoll, 84 Ill. 96; Sheridan v. Beardsley, 89 Ill. 477.

The transcript of the proceedings before the justice filed with the clerk of the Circuit Court October 26, •1910, showed that the judgment was entered October 6, 1910, and contained the following: “Bond filed and case appealed to the Circuit Court Oct. 15,1910.” The justice’s certificate stated that the transcript was true and correct and that the papers accompanying it contained a full and perfect statement of all the proceedings before him. If any of the papers used on the trial before the justice were not filed in the Circuit Court, or if any in the possession of the clerk were not marked filed, appellants could, on motion, have obtained a rule on the justice to send up such papers or on the clerk to file them if in his possession. The only paper not filed in the Circuit Court that could possibly bear any importance on the question of its jurisdiction would be the summons issued by the justice and a return thereon, showing his original jurisdiction over appellants. The transcript shows that the justice issued a summons and that it was duly served on appellants and the affidavits show that they appeared before the justice and a trial was had on the merits. While it was the duty of the justice to return the summons and other papers with the bond and transcript to the Circuit Court, the failure to discharge that duty did not deprive the court of jurisdiction to hear and determine the case on its merits. Buettner v. Norton Mfg. Co., 90 Ill. 415; McNichols v. Hunt, 43 Ill. App. 451. It would be absurd to say that the appealing party should lose his rights and the Appellate Court be ousted of jurisdiction on account of the negligence or ignorance of a justice of the peace in failing to send up all the necessary papers, or the negligence of the clerk in failing to mark them filed, if they were sent up.

The justice’s transcript performs the office of the declaration in original suits in courts of record. Reed v. Driscoll, supra; McGillen v. Wolff, 83 Ill. App. 227. The requirement that it should be filed ten days before the first day of the term of court at which the case shall stand for trial is in strict analogy with the practice in courts of record which requires declarations to be filed 10 days before the first day of the term at which judgment may be applied for. As before stated, the transcript was filed on October 26, 1910, and the trial was had March 14,1911, at a term beginning more than 10 days after the filing of the transcript. It was the duty of appellants, and they were bound, in law, to take notice of the fact that appellee had filed his bond with the justice of the peace, and they were bound to follow the appeal to the Circuit Court. The law required no summons or notice to be served on them that an appeal bad been taken. Boyd v. Kocher, 31 Ill. 295; Allen v. City of Monmouth, 37 Ill. 373; Fink v. Disbrow, 69 Ill. 76.

Tbe order of tbe Circuit Court, overruling tbe motion, is approved and tbe judgment affirmed.

Affirmed,.


text:
    Larcena Kohler, Appellant, v. Amalgamated Association of Street and Electric Railway Employees of America, Appellee.
    Gen. No. 5556.
    1. Fraternal benefit societies — how by-laws construed. The laws and rules of a fraternal benefit society are to be construed liberally in favor of the beneficiary so as not to defeat the' object and purpose of the insurance or indemnity.
    2. Fraternal benefit societies — when rights to insurance benefits established. Held, under the terms of the contract in question in this case, that the deceased at the time of his death was a member in good standing and that fraternal benefits were due from the society.
    Action commenced before justice of the peace. Appeal from the County Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 13, 1912.
    Woleenbarger & May, for appellant.
    Mansfield, Cowan & Boulware, for appellee.
   Mr. Justice Willis

delivered tbe opinion of tbe court.

Appellant sued appellee before a justice of tbe peace of Peoria county to recover a funeral benefit on an insurance certificate. On an appeal to tbe County Court of said county appellant recovered a judgment. "A new trial was granted. On the second trial appellee obtained a judgment for costs, from which this appeal is prosecuted.

September 26, 1908, Leonard Kohler, appellant’s husband, became a member of the Amalgamated Association of Street and Electric Railway Employes of America, and received a certificate of membership. The certificate and the by-laws of the association constituted the contract. Sec. 80 of the by-laws provided that after membership for one year a $100 funeral benefit was payable in case of death. Sec. 84 provided that on the death of a beneficial member his wife or legal heirs should be entitled to funeral benefits. Sec. 83 provided that “A member to be in good standing and entitled to death and disability benefits shall not allow himself to become in arrears over one month’s dues and assessments.” Sec. 93 among other things, provided: “A member to be entitled to death or disability claim must be in good standing and have all dues and assessments paid up to and including the month in which such death or disability occurs, provided it is after the 10th day of the month.” Sec. 75 provides: 11 All dues and assessments are due and payable on or before the 10th day of each month.”

Kohler lost his life in a fire October 25, 1909. Appellant claimed the funeral benefit. His dues for October had not been paid. It was the contention of appellee that thereby the funeral benefit was forfeited, in support of which it relied upon Secs. 93 and 75.

It is obvious that the sections of its by-laws defining good standing are in irreconcilable conflict. The trial court adopted the construction most favorable to appellee and instructed the jury that a member to be in good standing, and his wife or heirs entitled to the funeral benefit, must have his dues and assessments paid up to and including the month in which death occurred, providing it occurred after the 10th day of the month, and also modified and gave to the jury an instruction asked by appellant which made the payment of the dues for October an absolute prerequisite to membership under any and all circumstances after the 10th day of the month.

The laws and rules of appellee are to be construed liberally in favor of appellant so as not to defeat the object and purpose of the insurance or indemnity. Healy v. Mutual Accident Ass’n., 133 Ill. 556. Where it is sought to narrow the range of liability by insurance companies or societies, equivocal expressions are to be interpreted most strongly against the company. Commercial Ins. Co. v. Robinson, 64 Ill. 265; Niagara Fire Ins. Co. v. Scammon, 100 Ill. 644. The language of the policy, particularly in determining whether the liability is limited, is always strictly construed against the insurer. Queen Ins. Co. v. Dearborn Assn., 175 Ill. 115; Switchmen’s Union v. Colehouse, 227 Ill. 561. In Forest City Ins. Co. v. Hardesty, 182 Ill. 39, it was held that where the contract of insurance was so framed as to leave room for construction, that construction should be adopted which will not impair the indemnity, and if a clause in a policy is susceptible of two interpretations, courts will adopt the one which is most favorable to the insured, in order to indemnify him for the loss sustained. That case was cited and quoted with approval in Terwilliger v. Masonic Accident Assn., 197 Ill. 9. These rules of construction1 are applied to provisions and conditions in policies of insurance, because such policies are prepared by the insurance companies themselves, and the language in which they express their obligations and limit their liabilities is selected by them and not by the insured parties. Commercial Ins. Co. v. Robinson, supra; Forest City Ins. Co. v. Hardesty, supra. The language and arrangement of the by-laws are the language and arrangement of appellee, and in such cases it was held in Union Mutual Accident Ass’n v. Frohard, 134 Ill. 228, that the interpretation must be most strongly against the insurer.

Adopting tlie construction of the by-laws most favorable to the insured, Kobler was a member of tbe association in good standing at tbe time of bis deatli, notwithstanding that be bad not paid tbe dues and assessments due on October 10, 1909. Proof that be was in good standing made a case for appellant, and she was entitled to judgment for tbe funeral benefit.

From tbe view we take of tbe evidence, we do not deem it necessary to consider tbe other questions argued by counsel.

For the error of tbe trial court in adopting tbe construction of tbe by-laws most favorable to appellee, and directing tbe jury accordingly, tbe judgment is reversed and tbe cause remanded.

Reversed and remanded.


text:
    Commercial Register Company, Appellee, v. W. D. Drew, Appellant.
    Gen. No. 5560.
    1. Contracts — when right of rescission does not exist. If no right of rescission is reserved and no breach is committed by the vendee the vendor has no right to rescind an order for merchandise.
    2. Contracts — what not essential to recovery of purchase price. Actual delivery of merchandise ordered is not essential to the recovery of "the purchase price.
    3. Vendor and vendee — remedies of vendor upon refusal of delivery tendered. The vendor may pursue any one of 3 courses: (1) The vendor may store the goods for the vendee, give notice that he has done so and then recover the full contract price. (2) He may keep the goods and recover the excess of the contract price over and above the market price at the time and place of delivery. (3) He may sell the goods to the best advantage and recover of the vendee the losses if the goods fail to bring the contract price.
    4. Saxes — when title passes without delivery. The sale of a specific chattel passes the-property in it to the vendee without delivery.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Lee county; the Hon. Richard S. Fabrand, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    Brooks & Brooks, for appellant.
    C. W. Brewster and William: H. Winn, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

On September 7, 1909, appellant gave appellee a written order for the manufacture and shipment to him at Dixon, Illinois,, of a commercial cash register, for which he paid $15 in cash and gave a note for $120 payable in installments of $10 per month. This order or contract provided that upon a failure to promptly pay any deferred payment, the full amount of the purchase price remaining unpaid should become due and payable immediately; that the title to said register should not pass from appellee until the note given for the same was paid in full; that the bringing of a suit for the price of the register should not operate to vest the title thereto in appellant; that said register should remain the property of appellee until any judgment recovered for its price was paid, and that the contract should not be countermanded. Twenty days after giving the order, when the register was about ready for shipment, appellant wrote appellee to cancel the order. Appellee received the letter at Buffalo, N. Y., two days later and immediately replied that the register was made up special and would be ready for shipment soon and would “go out as per special construction order,” and that it would not cancel the contract. Two days later the register was shipped to apjiellant at Dixon, Illinois, subject to his order. He refused to receive it, and though frequently requested, refused payment as the installments became due. September 19, 1910, appellee sued appellant before a justice of the peace of Lee county to recover on the note or the contract price of the register, where appellant obtained a judgment. On an appeal to the Circuit Court of said county the case was tried upon a stipulated state of facts without the intervention of a jury and appellee obtained a judgment for $124.88 the amount then due on the note, from which this appeal is prosecuted.

No question is raised that the giving of the note in any way changed the contract as between the parties, and the question here presented for our decision involves the rule of law governing the rights of the parties subsequent to its making. “The note and written agreement as to the mode in which it should be payable having been executed together, are to be construed as one agreement.” Bradley v. Marshall, 54 Ill. 173. We shall so treat the note and the contract contained in the record before us.

It is contended that the letter countermanding the order cancelled the contract. Appellant’s undertaking to pay the stipulated price was contingent only on the conditions that appellee would manufacture and ship the register to him at Dixon. He agreed absolutely that upon the happening of these conditions he would pay the installments on the note as they matured. There was no reservation of the right of rescission in the contract, but on the contrary it was expressly agreed that it should not be countermanded. The register was substantially completed when appellee received the letter countermanding the order. Appellant did not claim the right to terminate the contract because of any default on appellee’s part, but sought to do so because he had a chance to sell his business and would have no use for the register himself. Appellant had no right to rescind the contract unless appellee had failed in some substantial manner to observe his part of the contract. Weintz v. Hafner, 78 Ill. 27. There was no failure on appellee’s part to perform its undertaking. No contract can be rescinded by one of the parties unless both can be restored to the conditions in which they were before the contract was made. The register was “made up special” and the rescission of the contract would not restore the parties to their original condition.

The trial court held the measure of damages to be the contract price.

It is contended that there can be a recovery of the contract price only where the title has passed, and that the title to the register never passed to appellant by actual delivery to him, but that the title remained in appellee. We do not think an actual delivery of the register or an acceptance of it was necessary to the recovery. It was doubtless intended by the parties that the contract be performed by the shipment of the register, as ordered. One of the strong evidences that it was so intended is gathered from the agreement of the parties that the contract should not be countermanded. If, as appellant contends, the contract was executory, on the shipment of the register it became executed so far as appellant’s rights are concerned. If there has been no delivery of personal property the seller who has offered performance on his part may consider the property as the purchaser’s and may either sell it and sue for the unpaid balance of the price, or may hold it subject to the call or order of the purchaser and recover the whole price. 3 Parsons on Contracts, 9th Ed., p. 209. The difference between the contract price and the market value at the time and place of delivery is a proper measure of damages for a failure to receive personal property, and in very many cases suits have been brought for such damages. The vendor often chooses to retain the title to the property and recover the difference between the value and the contract price, but if the property remains in Ms hands, he is not obliged to consider it as Ms own. The rule in this state is that the vendor may elect to sue for damages or treat the property as the property of the vendee, notwithstanding a refusal to accept it, and sue upon the contract for the whole contract price. In Bagley v. Finlay, 82 Ill. 524, it was said that when a vendee of goods sold at a specific price refuses to take and pay for the goods, the vendor may store them and give notice that he has done so and then recover the full contract price, or 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. In a case like this the vendor may pursue any one of three courses: 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 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. Ames v. Moir, 130 Ill. 582; Trunkey v. Hedstrom, 131 Ill. 204; Osgood v. Skinner, 211 Ill. 229; Comstock v. Price, 103 Ill. App. 19. The authorities are not uniform on that subject, but the rule stated is the one adopted by the courts of this state. Appellee followed the first course, and on appellant’s refusal to accept the register, left it in the Illinois Central depot at Dixon and notified appellant thereof, and he could, at any time, have taken it. We are of the opinion that the fact that the title was not to pass until payment was completed does not change the rule. Appellant was entitled to the possession of the register at once and to use it and would have retained the possession and use if he had paid the installments as they became due. We conclude then, that the trial court did not err in holding that the contract price was the proper measure of damages.

There is another ground which we think supports the holding of the trial court that the contract price was a proper measure of recovery under the facts in this record. The register was the sale of a specific chattel. In 3 Sutherland on Damages, 3rd Ed., Sec. 644, it was said: “The sale of a specific chattel passes the property in it to the vendee without delivery, and the risk of property which is the subject of a sale attends the title. But where the sale is of goods generally, no property in them passes until there is a subsequent appropriation according to the contract of the goods to which it applies. Where by the contract itself the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take that chattel and to pay the stipulated price the parties are then in the same situation as they would be after a delivery of goods in pursuance of a general contract. The very appropriation is equivalent to delivery by the vendor, and the assent of the vendee to take the specific chattel and pay the price is equivalent to his accepting possession. The effect of the contract, therefore, is to vest the property in the bargainee.” The register was made especially for appellant and placed by appellee where he could obtain possession. The evidence brings the case at bar clearly within the rule laid down in Sutherland on Damages, supra.

There is still another reason which we thing justified the trial court in holding that appellee was entitled to recover the contract price of the register; that is, from the terms of the contract itself. The contract is carefully drawn so far as to make clear that the vendor intended to reserve unusual advantages and to impose unusual burdens. We are not to construe equities into the contract, but to carry it out as the parties were content to make it. If a man is willing .to contract that he shall be liable for the whole value of a chattel before the title passes, there is nothing to prevent his doing so and thereby binding himself to pay the whole sum. Mechem on Sales, Vol. 2, Sec. 415 p. 1225; White v. Solomon, 30 L. R. A. 537, 164 Mass. 516; National Cash Register Co. v. Hill, 68 L. R. A. 100, 136 N. C. 272; Natl. Cash Register Co. v. Dehn, 102 N. W. 965.

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

Affirmed.


text:
    David A. Middleton, Plaintiff in Error, v. De Kalb County Gas Company, Defendant in Error.
    Gen. No. 5461.
    1. Negligence — when gas company not guilty of. A gas company is under no obligation to inspect attachments upon the premises of a consumer where such attachments have been selected by the consumer.
    2. Instructions — when as to evidence to he considered improper. It is improper to tell the jury that the sufficiency of material used is to be determined by expert evidence only. Such a question is one to be decided from all the evidence hearing upon the subject.
    Error to the Circuit Court of DeKalb county; the Hon. Mazzini Seusser, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912,
    W. C. Kellum and H. S. Earley, for plaintiff in error.
    John Faissler and Alfred H. Gross, for defendant in error.
   Mr. Justice Willis

delivered the opinion of the court.

August 1, 1904, David A. Middleton, a merchant tailor occupying rooms in a building in Sycamore, applied to the De'Kalb County Gas Company to have gas piped to his rooms and attached to a tailor’s stove. The company piped one of the rooms, set a meter, and connected the stove with the pipe by slipping* a piece of rubber tubing about two /eet long over a rubber nipple at the end of the pipe and over a like end on the stove. The work was done under a written contract. Middleton paid for the connection. He used the stove eight or ten hours a day until January 28, 1908. On that day a fire occurred, from, as Middleton claimed, a gas explosion; as the company claims, from gasoline fumes becoming ignited by a flame from the stove. Middleton’s property was injured and he brought this suit against the company in the Circuit Court of DeKalb county to recover damages. The declaration contained three original and four additional counts. The first count charged that the connection was so negligently made that it became loose. The second count charged that the company carelessly connected the pipe with the stove by a rubber nipple which slipped off. The third count was like the first and second except that it charged that the heat disintegrated the rubber connections. The first additional count charged that the company carelessly and wilfully made the connection, and that if the company had inspected it the deterioration would have been discovered. The second additional count charged that the tubing was not a permanent connection, and alleged that the company negligently failed to perform its duty of inspecting the same. The third additional count was like the second, except that it charged the company with the duty to inform Middleton of the temporary character of the connection and that it neglected to do so. The fourth additional count charged the duty to make permanent connections, and that contrary thereto the connection was made as charged in the second count. Each count charged that by reason of the; alleged negligence gas escaped, took fire and caused the damage, and stated that Middleton was in the exercise of due care in the operation of the stove at the time of the fire. There was a plea of not guilty. A trial resulted in a verdict for Middleton. A new trial was granted. On the second trial the company had a verdict of not guilty. A motion for a new trial was denied and the company had judgment for costs. Middleton brings the record here on a writ of error.

The evidence was conflicting upon the question whether Middleton or the company selected the rubber tube as the means of making the connection. There was proof that it was the custom in gas fitting to use an iron pipe where the article to be connected was immovable and to use rubber tube where ■ it was movable. Middleton testified that the stove was nailed to a box and the box nailed to the building. A witness testified that it was not fastened to the box when the connection was made, and that it was not attached on the day after the fire. The servant of the company who made the connection testified that the stove was not fastened to the box then. Even if the stove was nailed to a box and the box nailed to the building, it would require the drawing of but a few nails if Middleton wished to move it to a different position and it would be easier to secure a longer tube, if necessary, than to change a stationary iron pipe, and it was entirely consistent with the uses to which such stove is put that he should prefer a portable connection. The jury were warranted in believing that Middleton requested that a rubber tube be used.

The proof is clear that the connection was reasonably safe when made and that it did satisfactory service for three years and a half. The contract provided that the delivery of the gas should be considered complete when it left the service pipe of the company and also “The company shall not be liable for any damages caused by the escape of gas.” Middleton having paid for the labor and material the connection became his property.

There is no theory upon which Middleton conld recover unless the company owed him the duty of inspecting his own property from time to time or of informing him that the constant presence of the rubber tube close to the stove would cause it to deteriorate, crack and allow gas to escape. When Middleton selected the rubber tube, paid for it and caused the connection to be made, the company had a right to assume that he had ordinary knowledge concerning the durability of rubber, and would know that it would deteriorate from continual proximity to the heat from the stove. We are unable to find anything which would justify us in holding that the company was bound to inspect Middleton’s property or to inform him of the destructibility of rubber. More will be said of the company’s duty of inspection in discussing Middleton’s objections to the company’s 9th and 13th instructions.

Complaint is made of the ruling of the court in giving’ instructions Nos. 1, 3, 5, 6, 9, 11 and 13, requested by the company, but nothing is urged in argument -against the 11th.

The 1st and 6th instructions were substantially the same, and told the jury that if they believed from the evidence that Middleton was asked to make a selection for the connection between the gas pipe and the rubber tubing and if they further believed that he selected the rubber tubing, then, as a matter of law, he assumed the risk from any loss or damage in the use of the same. If there had been a defect in the tube when put on and an explosion immediately followed, these instructions would have been erroneous, and to make them accurate, they should have contained the qualification “if the jury believe from the evidence that said tube was suitable and sufficient when furnished,” but as it is undisputed that it was sufficient and reasonably safe when pnt on and for three years and half thereafter, the omission of that element did not make the instructions bad in this case.

The 3rd instruction told the jury that the question of the sufficiency of the material used and the question as to the construction were to be determined by the evidence of persons skilled in the gas fitting business, and that the testimony of experts was entitled to the same weight and consideration as that of any other witness. It is apparent that this instruction was not strictly accurate, as these questions were not necessarily to be determined only by the evidence of persons skilled in the gas fitting business or experts, but upon all the evidence relating to that question. We do not think, however, that the instruction injured Middleton.

The 5th instruction told the jury that if they believed from the evidence that the fire was caused by other agencies than the escape of gas from the rubber tube, or if the evidence on the question was equally balanced, they should find for the company. The objection to the instruction is that there was no evidence upon which to base it. There was evidence that Middleton used gasoline in cleaning garments and when it was desired to get them out quickly they were hung up between curtains so as to direct the hot air from the stove up through the clothing, and Middleton testified that there was some clothing hanging there at the time of the fire. If gasoline was used, which made fumes in sufficient quantity to become ignited by the flame from the stove, the heat from these burning fumes may have been sufficient to have severed the rubber tube between the pipe and the stove, at the same time setting fire to the escaping gas. We think the .objection to this instruction is untenable, as it is entirely possible that the fire might have been caused by other agencies than the escape of gas from the rubber tube.

The 9th instruction told the jury that the company owed no duty of inspection to Middleton as charged in the 1st and 2nd additional counts of the declaration. The 13th instruction told the jury that the law did hot impose upon the company any obligation to inspect the pipes and connections in the .tailor shop, and the failure to do so would not be negligence, if they found from the evidence that such pipes and connections were owned and controlled by Middleton. Suppose he had hired some other gas fitter to make this connection, could it be contended that if such other gas fitter had put on a suitable rubber tube connecting the pipe with the stove and was paid for the material and labor that he owed a duty to thereafter inspect the same? We do not think so. The company owed a duty of inspecting the pipes and fixtures which it owned in the building, but that duty did not, in our opinion, extend beyond the property which it owned', and that was only to and through the gas meter, as we understand it.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

Affirmed.


text:
    Vernie Olson, Defendant in Error, v. Elsie Olson, Plaintiff in Error.
    Gen. No. 5563.
    1. Trover — when lies. Trover lies by a landlord for the wrongful conversion of crops agreed to be delivered to him as rent.
    2. Remedies — effect of election. Suing in assumpsit does not preclude a party from the right by amending to change his action to one in trover.
    Assumpsit. Error to the Circuit Court of Lee county; the Hon. Richard S. Farrand, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    J. W. Watts, for plaintiff in error.
    C. E. Gardner, Henry S. Dixon and George 0. Dixon, for defendant in error.
   Mr. Justice Willis

delivered the opinion of the court.

Elsie Olson leased a farm to her son, Vernie Olson, for the year 1909, for a share of the crops. He took possession, put in a crop and cultivated it. After-wards difficulties arose between them, and on August 6, 1909, they entered into a written agreement, whereby each party should select an appraiser, and the two appraisers should select a third, and on or about October 1, 1909, the three were to decide the value of the standing corn, and she was then to pay her son half the value thereof. He was to cut and have threshed the timothy, each party to have half the seed, and to pay half the machine hire for threshing the same. He cut and threshed the timothy and paid half the machine hire and also selected an appraiser. She did not, and no appraisement was had. She drove him from the premises at the point of a gun and appropriated his share of the corn, and also some hay and potatoes. He brought this suit in assumpsit in the Circuit Court of Lee county and afterwards, by leave of court, amended the praecipe, summons and declaration, changing the form of action from assumpsit to trover. The amended declaration averred that he was lawfully possessed of six tons of hay, 40 bushels of potatoes, and an undivided half interest in 40 acres of corn, and that she converted the said chattels to her own use. He obtained a verdict and a judgment of $400. She sued out this writ of error to review the judgment.

It is contended that trover will not lie for the .corn since by the contract it became the property of plaintiff in error, and her liability, if any, was' in assumpsit; that at most trover would only lie for the hay and potatoes. By the terms of the lease the parties had an undivided half interest in all of the crops, except the potatoes, which belonged to defendant in error. The written agreement in a measure ratified the lease, and provided a means whereby the rights of the parties in the crops might be ascertained. The corn would not become the property of plaintiff in error until it was appraised, and she had paid for it. By her refusal to have it appraised, it remained the property of the parties jointly. A contract to cultivate the land on shares is usually regarded as constituting the parties tenants in common of the crops so raised, but not joint tenants or tenants in common of the land. While an agreement to cultivate land oh shares may create a tenancy in common of the crops, it is not necessarily inconsistent with the relation of landlord and tenant. 24 Cyc. p. 1471. Such crops are divisible and the share of each easily ascertained and the refusal to recognize the right of the’ co-tenant amounts to a conversion. It is not like the case of tenants in common of a chattel where one has as good a right to the possession as the other. Fiquet v. Allison, 12 Mich. 328; Loomis v. O’Neal, 73 Mich. 582. “Trover is the form of action prescribed by the common law where damages are demanded for specific personal property which has been wrongfully appropriated, or, in more technical language, converted to the use of any other than its rightful owner. ’ ’ 2 Sedgwick on Damages, 8th Ed., Sec. 492.

Chapter 76, Sec. 2, Hurd’s B. S. provides:

“If any person shall assume and exercise exclusive ownership over, or take away, destroy * _ * _ * or otherwise injure or abuse any property held in * * * tenancy in common, the party aggrieved shall have his action of trespass or trover for the injury, in the same manner as he would have if such * * * tenancy in common did not exist.”

In our opinion plaintiff in error’s contention that trover did not lie for the conversion of the corn is not tenable.

Counsel for plaintiff in error says that if she was guilty of converting the hay and potatoes, that by bringing the suit originally in assumpsit, defendant in error elected to waive the tort, and he could not change the form of action to trover. “The circumstance of a party having elected one of several remedies by action will not in general preclude him from abandoning such suit, and after having discontinued it, he may adopt any other remedy.” 1 Chitty’s PL, 14th Ed., 212. Since the adoption of Sec. 1, Chap. 7, Hurd’s E. S. which provides, “The court in which an action is pending shall have power to permit amendments in any process, pleading or proceeding in such action, either in form or substance, ’ ’ it has not been necessary in order to change the form of the action, to dismiss the proceeding. See also Sec. 39 of the “Practice Act.” The trial court had the authority to grant the leave to amend, and defendant in error had the right to elect whether he would proceed in assumpsit or in trover. T. W. & W. R. W. Co. v. Chew, 67 Ill. 378; City of Elgin v. Joslyn, 136 Ill. 525. His first election to proceed in assumpsit did not, in our opinion, deprive him of the right to an amendment and the subsequent election to proceed in trover.

The evidence shows that defendant in error was repeatedly driven from the premises by his mother and that she converted to her own use his undivided interest in the corn and hay as well as the potatoes, wholly owned by him. The amount allowed by the jury for compensation therefor is amply supported by the proof. Her claims are utterly devoid of merit. She makes no denial of any essential element of defendant in error’s claim.

The judgment is therefore affirmed.

Affirmed.


text:
    Frances J. Shields, Administratrix, Appellee, v. J. H. Dole Company, Appellant.
    Gen. No. 5565.
    1. Landlord and tenant — when former liable for defective condition resulting in personal injury. A landlord who knows or who by the exercise of ordinary care ought to have known of a dangerous condition at the time either of a first or second letting to a tenant is liable to a person injured upon the premises demised by reason of such dangerous condition.
    2. Instructions — what estops theory of defense. A party cannot upon 'appeal seek to avoid liability upon a theory inconsistent with instructions which he caused to be given upon the trial.
    3. Instructions — when inaccuracy in death case ground for reversal. In such a ease the instructions should limit the damages to be awarded to the pecuniary loss, and a. failure so to do is ground for reversal.
    Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of Henry county; the Hon. Emery C. Graves, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 13, 1912.
    Leman & Rigby and Jay L. Spaulding, for appellant.
    John T. Cummings and Anderson & Andrews, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Wilbur Barrett, appellee’s intestate, was killed in a grain elevator at Kewanee, in Henry county, on September 12, 1907, and this suit was brought by Frances J. Shields, his administratrix, to recover the pecuniary loss suffered by his next of kin from.his death. The elevator in which the accident occurred was owned by J. H. Dole Company, appellant here, and operated under a lease by Samuel W. MeSpadden, a co-defendant. Barrett was an employe of MeSpadden at the time of his death, and was killed by the fall of a partition between bins No. 2 and 4 in the elevator. The Chicago, Burlington & Quincy Bail-road Company was originally a party defendant, but at a later stage of the proceedings the suit was dismissed as to it. The first trial was discontinued because of illness of counsel. At a second trial appellee had a verdict which the trial court set aside. At the close of plaintiffs evidence on the third trial plaintiff obtained leave to file two additional counts and did so, and thereupon defendant, J. H. Dole Company, pleaded the general issue and the Statute of Limitations to said additional counts, and a demurrer to the latter plea was sustained. There was other pleading which need not be stated here. At the third trial there was a verdict for plaintiff against both defendants in the sum of $6,000. Motions for a new trial and in arrest of judgment were made and denied, judgment was entered on the verdict, and. the defendant, J. H. Dole Company, appeals to this court.

The elevator in which this accident occurred was a frame building, in which were 21 bins, each about 10 by 10 by 10 feet arranged in pairs, running lengthwise of the building, one on each side of a central partition which also ran lengthwise of the building. This central partition was covered by a sidewalk from 31/2 to 4 feet wide, near the roof. Bins 2 and 4 were opposite each other, separated by the partition mentioned. The evidence seems to show that on the 12th of September, 1907, there was an extraordinary quantity of grain in the elevator and that these two bins were completely filled with shelled corn, which was piled up above the sides of the bins to the_ shingle roof and was about 3 feet deep over the sidewalk. Bin 4 was being unloaded into a railroad freight car, standing on a track alongside the elevator. After bin 4 was partly emptied,-James Close, foreman of the elevator, told Barrett to finish cleaning ont the bin, and, for that purpose, Barrett went down into the bin to shovel the com through a hole in the bottom thereof. While bin 4. was, thus emptied, bin 2 on the other side of the partition remained full of corn, and, the counter-balancing weight of corn having been removed from bin 4, the weight of the corn in bin 2 caused the partition between the two bins to be pushed over on Barrett' and he was killed. Appellee contends that the falling of the partition was due to some weakness in the construction of the elevator or because it was decayed and out of repair when leased, or that appellant should be held liable as the one actually operating the building, or so associated in its operation as to be responsible for this death, so that on some one or more of these grounds, appellant, the owner of the building and lessor of McSpadden, should be held liable. Just before Barrett’s death, the foreman had been engaged in shoveling out bin 4 but had been called away to attend to other matters about the elevator, and ordered Barrett to finish the work in that bin. Barrett had been employed a few months by McSpadden as a driver, and also did general work about the elevator, and had shoveled grain from various bins into cars, but whether from this particular bin was not clear from the evidence.

As before stated, this elevator was owned by J. H. Dole Company and was under lease to McSpadden at the time of the accident. The lease, which was in writing, required the lessee to keep the premises in repair, and also contained provisions that the lessor might enter at any time and inspect and make repairs. There was evidence that the president of appellant had occasionally visited the building and suggested repairs to the tenant. Appellant was in the grain business in Chicago, and the lease required the lessee to ship all his grain to appellant and gave appellant a commission on any grain he might ship to any other party or might sell locally in Kewanee. The commission appellant would thus obtain upon the grain was declared in the lease to be a part of the rent. It also gave the lessor the right to put out the lessee at any time for any reason satisfactory to itself. It is clear under numerous Illinois cases including West Chicago Masonic Ass’n v. Cohn, 192 Ill. 210, and Foley v. Everett, 132 Ill. App. 438; 142 Ill. App. 250, that in the case of an absolute lease, the liability of the lessor for damages occurring from the subsequent defective condition of the building depends upon whether the building was in a defective condition at the time the lease was executed and the premises surrendered to the tenant, and also upon whether or not the lessor knew thereof, or, by the exercise of due care at that time, would have known thereof. If the premises were then defective and the lessor knew of it or should have known it, he is liable for a subsequent injury, though not in possession. If the premises were not then dangerous, or if he did not know thereof, and, by the exercise of due care at the time the lease was made, would not have known thereof, then he is not liable, but the liability, if any, is that of the tenant. Appellant contends that its liability must be measured by the condition of things in the elevator at the time the building was first leased to McSpadden, which was more than a year before the accident. We think this incorrect, under the authority of Borman v. Sandgren, 37 Ill. App. 160; Donk Bros. v. Leavitt, 109 Ill. App. 385; and Ingwersen v. Rankin, 47 N. J. L. 18. Besides appellant is estopped from taking that position here- because of several instructions which were given at its request, in which the time when the liability was to be measured is fixed at the date of the •second lease, which was July, 1907. The evidence leaves it doubtful whether the defect which caused the partition to fall existed at the time of the execution of the second lease, and, if so, whether or not appellant ought to have known thereof, or whether, in fact, the falling of the partition was caused solely by the manner- in which the tenant handled the grain, leaving one side of the partition overloaded and the other side empty.

Appellee was the mother of the deceased and was living with a daughter in Kewanee at the time of his death. Her intestate was twenty-four years old, was unmarried and was not living with his mother and sister at the time of his death. The evidence tended to show that he was earning, at the time of his death, not to exceed $12 per week and that he contributed at times to the support of his mother and sister, but not to exceed $200 per year for the mother and not to exceed $100 per year for the sister. There is no evidence to show that either mother or sister were dependent upon Barrett, nor how many years he had been so contributing to their support. Under the evidence it is a serious question whether the mother and sister of decedent were so dependent upon Mm as to justify so large a verdict.

In this condition of the record, instruction No. 2 given at the request of appellee, was erroneous. It was as follows:

“If you believe from the evidence that the partition involved in this suit at the time of and just before the death of Wilbur Barrett was in a state of ill repair and was weak and liable to fall, it is not necessary in order for the plaintiff to recover in this case to show that the defendants or either _ of them actually knew of such condition of said partition, but the evidence is sufficient upon that subject if it shows that the defendants in the exercise of due care would have known of the condition of the said partition.

This instruction imposed upon appellant the duty of inspection up to the date of the injury. It reqmred that at the time of the injury appellant should have been in the exercise of dne care to know the condition of the partition. If the relation of appellant to these premises was only that of landlord, then as to it the question should have been whether, at the date of the last lease, the partition, was in need of repair and liable to fall, and whether appellant, in the exercise of due care, would have known of that condition at that time. By this instruction the court virtually decided that appellant was operating the elevator, or was responsible for it as if it were operating it. These were questions of fact which it was not within the province of the court to decide.

Instruction No. 5, given at the request of appellee was as follows:

“You are instructed that, where the joint negligence of two persons unites in causing an injury by which another is injured, it is no defense for one of such wrongdoers to show that the other is also guilty of the same negligence. ’ ’

We consider this instruction of doubtful propriety. It was a mere proposition of law, not applied to the case nor to the evidence. Its natural tendency would be to lead the jury to believe that the court was designating the defendants by the term “wrongdoers” and thereby to prejudice the jury against them. Instruction No. 7, given at the request of appellee, concerned the measure of damages, and allowed the jury to “determine what will .be a fair and reasonable compensation for the loss sustained by the next of kin of the deceased.” This language would include or might be thought by the .jury to include injury to the feelings of the next of kin and other matters for which the law does not allow recovery. It should have been limited to the pecuniary loss. It is true that other instructions did indicate as the true measure of damages the pecuniary benefits of which the next of kin had been deprived, but in view of the large verdict, we are not able to say that this instruction did not mislead the jury. Complaint is made by appellant of some other instructions, given at the request of appellee, but in onr opinion, the defects in those instructions, if any, have been cured by other given instructions.

The evidence leaves it so doubtful whether appellant is liable that we are of the opinion that the errors in instructions, above pointed out, require that this cause be tried anew.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    Abram Hammond, Appellee, v. Woodruff & Edwards Company, Appellant.
    Gen. No. 5568.
    1. Instructions — effect of motion to direct verdict. The motion to direct a verdict is in the nature of a demurrer to the evidence and admits the truth of all that the evidence proves or tends to prove.
    2. Instructions — what upon quantum of proof proper. An instruction is proper which tells the jury that the plaintiff is not hound to prove his case beyond a reasonable doubt but is merely hound to prove it by a preponderance of the evidence.
    3. Instructions — effect of refusal of cautionary. The refusal of a cautionary instruction is not ordinarily ground for reversal.
    4. Instructions- — effect of refusal of an instruction directing jury to disregard particular counts. If there is one good count in the declaration upon which the verdict rendered can be sustained it is harmless error for the court to refuse an instruction which directs the jury to disregard a particular count or counts.
    5. Master and servant — limits of application of doctrine of assumed risk. The rule is that the servant assumes the ordinary risks incident to his employment but the law pre-supposes that the master has performed the duties of care, caution and vigilance which the law has placed upon him.
    6. Master and servant — what risks not assumed. The employe does not take the risk of dangers known to the master and unknown to himself which could not have been known to him by the exercise of reasonable care and which could be avoided by the exercise of reasonable care on the part of the master.
    7. Evidence — what not proper cross-examination. Questions pertaining to matters not touched upon on direct are improper upon cross-examination.
    Action in case for personal injuries. Appeal from the Circuit Court of Kane county; the Hon. Mazzini Slusseb, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    Rehearing denied April 11, 1912.
    Frank M. Cox and R. J. Fellingham, for appellant; John K. Newhall, of counsel.
    Charles B. Hazlehurst, C. F. Irwin and Walter E. Healy, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

In March, 1908, and for some time prior thereto, the Woodruff & Edwards Company conducted a general foundry business at Elgin, where Abram Hammond was employed as a moulder. Through the center of the building in which he worked, extending north and south, was the main passageway. On the east side of the passageway, a little north of the center of the building, was a cupola used for melting ore. About the middle of the north end of this room was a door leading into an adjoining building. Just east of this door was a wooden water barrel which had a capacity of about sixty gallons. The floor of the shop was of clay and the barrel was set about three feet deep in a pit dug in the floor, the top of the barrel extending about seven or eight inches above the ground. About two or three inches from the top of the barrel holes were bored, opening into the pit, and to the side of the pit a two inch pipe was connected, forming an outlet into the race. Water was supplied by means of a pipe coming in over the top of the barrel. There was a plank platform about four or five feet square around the barrel, beneath which the outlet was located. The floor of the shop, on each side of the main passageway, was divided into moulding floors separated by gangways. The floor on which Hammond worked was located in the northeast corner of the shop and was about twelve feet wide and about eight feet east of the main passageway, and extended to the east wall of the building. Immediately south of his floor was a gangway about eight feet wide, separating his floor from Peterson’s floor. Each moulding floor was provided with a number of flasks in which moulding sand was placed to receive the metal for the castings. Every day, up to 3 o’clock in the afternoon, the moulders would put the necessary sand into the flasks, after which the molten metal would be carried from the cupola in ladles and poured into them. At night other men would dump the sand out upon the moulding floors, put away the castings, take water from the barrel and sprinkle the sand to render it suitable for moulding the following day. On March 25, 1908, Hammond performed his usual duties until 3 o’clock in the afternoon, when the work of taking the metal from the cupola was begun. He examined his ladle and skimmer, found them ready for use, took his ladle to the cupola and filled it with molten metal. A fellow moulder helped him carry the ladle. Arriving at the moulding floor, they set the ladle down. Hammond took his skimmer and skimmed the slag off, and set the skimmer down on some sand in the gangway so that it leaned against Peterson’s flasks. They poured the contents of the ladle into the mould and went back to the cupola for another ladle of metal. They carried the second ladle full to the moulding floor, and Hammond took his skimmer to shim the ladle. The moment the skimmer came in contact with the molten metal a violent explosion occurred, expelling the metal from the ladle and throwing it upon him. It struck him about the head and body and burned his left eye severely. He was taken to his home and the following day to a hospital, where he received treatment for thirty-eight days, during which time his left eyeball was removed. He was unable to work for three months after the accident. He brought this suit in the Circuit Court of Kane county to recover for the injuries sustained. The declaration, in several counts, charged, among other things, that appellant negligently permitted the barrel to remain in such a leaky and dangerous condition that the. water would flow down upon the moulding floor, rendering it wet, and permitted the floor to so remain, thereby rendering any skimmer used in skimming the molten metal in said foundry "wet and dangerous to use in case such skimmer should be placed upon said floor or should be rested thereon; that appellant knew of the wet and dangerous condition of said floor, or by the exercise of reasonable diligence ought to have known it, and that appellee did not know of the danger and did not have equal means with appellant of knowing of the dangerous condition of the floor and of the place where he was required to work. There was a plea of not guilty. At the close of Hammond’s evidence the company made a motion asking the óourt to direct the jury to find it not guilty, and with the motion tendered an instruction in writing to that effect. The court denied the motion and refused the instruction, whereupon the company elected to stand by its motion and offered no evidence. The jury returned a verdict of $2,500 for Hammond. Motions for a new trial and in arrest of judgment were denied, judgment was entered on the verdict and the company prosecutes this appeal.

Appellant first contends that the evidence does not show that the negligence charged was the proximate cause of appellee’s injury.

The theory of the declaration is that water was negligently permitted to escape from the pit and so dampen the sand as to make it extra hazardous for appellee to perform his ordinary duties as a moulder; that appellant knew, or by the exercise of ordinary care might have known, that this would happen, and that appellee did not know and did not have an equal opportunity with appellant to know that it would occur.

The evidence shows that one morning three or four months before the accident, appellee noticed that the pit in which the barrel was set was overflowing, and that the water was running down on his floor underneath the sand and also on Peterson’s floor; that he complained about this to appellant’s foreman; that the foreman later brought some men, who took up the platform, did something with reference to the barrel and replaced the platform; that in the afternoon the foreman told appellee that he had fixed it so that the water would run off into the race. Arnold Flinty, a moulder who had been in the employ of appellant for about two years before the accident, testified that about three or four weeks before the accident he saw the water standing underneath the planks of the platform; that he told the foreman that the water had been draining off there and that the condition was dangerous and thereupon the foreman replied that if he did not like it he could quit. The attention of the foreman was on at least two occasions called to the fact that water was overflowing from the barrel or pit, and on the last occasion he did nothing to stop the overflow, and as he stood in the place of appellant, it follows that it had notice of the said condition. Whatever knowledge the.foreman possessed in regard to the usage and dangerous condition of the water barrel, its appliances or the ground or floor of the foundry where .appellee worked, appellant is chargeable with. C. & A. R. R. Co. v. Scanlan, 170 Ill. 106. To allow the premises or machinery or appliances to be and remain ont of repair when sneh conditions were known, or by the exercise of reasonable diligence might have been known and prevented, is negligence on the part of the master. National Syrup Co. v. Carlson, 155 Ill. 210. Flinty further testified that immediately after appellee was injured he went up to the place where the skimmer had stood; that he felt of the sand there and found that it was damp; that he then traced it along the floor, noticed that it went toward the barrel and found that it was damp from the place'where the skimmer had stood up to the barrel; that in examining it he took some of the sand in his hand and squeezed it and it showed dampness; that upon looking through the cracks between the planks of the platform, he noticed that there was water standing around up close to the platform. The motion to direct a verdict, being in nature of a demurrer to the evidence, admitted the truth of Flinty’s testimony and all inferences that might be fairly and rationally drawn from it. Missouri Malleable Iron Co. v. Dillon, 206 Ill. 145. Moreover his testimony was not contradicted. The evidence also shows that a piece of wet or rusty iron coming in contact with molten metal will cause an explosion; that the skimmer which appellee was using at the time of the accident was the same one used by him on the two days immediately prior thereto, and that it was not rusty; that the slag which sometimes remained on the skimmer and clings to it after it has been used would not cause ah explosion, unless the skimmer were wet or rusty; that whatever sand lies on the floor, would, under ordinary and proper conditions, be dry at the time of the pouring off of the molten metal and would not stick to the skimmer. The jury were warranted in finding that the dampness which caused this explosion did not come from the sprinkling of the sand preparatory to moulding, but that water flowed out of the top of the pit because the pipe was insufficient in size or was clogged up, and flowed over the floor to the place where appellee set his skimmer after the first skimming and so moistened the sand that it dampened the skimmer sufficiently to cause the explosion when it was used for the second skimming. We think the evidence clearly established that the negligence charged in the declaration was the proximate cause of appellee’s injury.

Appellant also contends that wet sand is an ordinary incident to moulding and that appellee had a better opportunity or as good an opportunity-as appellant to know that the sand was wet, and that he was negligent in not examining the skimmer each time before he used it, to see that there was no moisture on it, and that he assumed the risk of the presence of the wet sand; that it was the duty of appellee to inspect the pit and to see that no water was overflowing. The proof shows that it was only necessary to inspect the skimmer the first time it was used for the pouring off in the afternoon and that appellee handled his skimmer in the same way and placed it in the same place as was customary; that the slight moisture necessary in moulding sand was not sufficient to cause an explosion, because when the flasks are filled for the day’s moulding, hot metal is poured into them, and if that amount of dampness would cause an explosion, then each flask would explode when the metal was poured into it, and there was no evidence that such an explosion had ever occurred. While appellee was bound to take notice of defects which were patent, he was not required to make an examination for hidden defects, and he might properly act upon the presumption that appellant had used reasonable care to keep the place and instruments in proper condition for moulding. Appellant knew that water had overflowed from the pit on at least two previous occasions. Appellee knew of only one of these occasions, and as to that he was informed by the foreman that it had been repaired, and he had a right to rely on that statement. The rule is that the servant assumes the ordinary risks incident to his employment, but the law presupposes that the master has performed the duties of care, caution and vigilance which the law has placed upon him. The employe does not take the risk of dangers known to the master and unknown to himself, which could not have been known to him by the exercise of reasonable care and which could be avoided by the exercise of reasonable care on the part of the master. Superior Coal Co. v. Kaiser, 229 Ill. 29; Swiercz v. Illinois Steel Co., 231 Ill. 456; Kenny v. Marquette Cement Co., 243 Ill. 396. We think, from the evidence in this record, that the question of assumed risk was one of fact for the jury. Appellant’s argument that it was the duty of appellee, under his master’s orders, to inspect the barrel and pit and keep it from overflowing is not warranted by the proof. When the defective condition had been repaired some months before, the foreman said to appellee that the company had to pay for all the water that came through that faucet and told him that if he saw the faucet open and the water running when the men were not using it he should close it so as to reduce the cost of the water to the company. There was no proof that water was running at this particular time, or that appellee saw it running, or that he did not obey the injunctions of appellant whenever he saw that condition. The foreman did not direct him to exercise any supervision over the barrel or pit. Appellee’s business was that of a moulder. He had no occasion to go upon the platform or to look underneath it to investigate conditions. Appellant found it necessary to take up the platform when it repaired the defective condition previously. There certainly was no duty devolving upon appellee that would require him to remove the platform and examine the pit and overflow pipe.

Appellant complains that the court erred in admitting and excluding evidence. The argument of counsel in support of this contention 'is directed mainly to the ruling of the court in refusing to permit it to ask certain questions on cross-examination of a number of appellee’s witnesses. In each case the witness had not been interrogated upon the subject which the cross-examiner sought to develop. These witnesses were servants of appellant, and all but one in its employ at the time of the trial. Appellee called them to describe the arrangement of the rooms in the foundry, the ladle, the water barrel and pit, but did not interrogate them concerning the circumstances relative to the happening of the accident. Appellant, if it desired to make these inquiries, should have called them as its own witnesses after appellee had rested his case. In Jones on Evidence, 2nd Ed., Sec. 820, that author, after stating the English rule on this subject, then says: “The rule which was long ago declared by the Supreme Court of the United States, called the American rule, and which prevails in most of the states, is quite different. The cross1examination can only relate to facts and circumstances connected with the matters stated in the direct examination of the witness. If a party wishes to examine a witness as to other matters, he must do so by making the witness his own.” Anheuser Busch Brewing Ass’n. v. Hutmacher, 127 Ill. 652; Hansen v. Miller, 145 Ill. 538; Schmidt v. Chicago City Ry. Co., 239 Ill. 494. In Hansen v. Miller, supra, the court said: “If the defendant desired to examine the plaintiff in relation to matters to which he had not testified in chief, he was at liberty, at the proper time, to make him his own witness and examine him as to such matters. But the plaintiff was entitled to have the rule of evidence so applied as to confine the cross-examination to the matters brought on the direct examination.” So in Schmidt v. Chicago City Ry. Co., supra, it was said: “A cross-examination must be limited to facts elicited by the examination in chief.” We find no harmful error in ruling upon the admission of evidence, and no infringement or curtailing of the rights of appellant in cross-examination.

Appellant complains of the giving of appellee’s instructions No. 4, 15, 17 and 23.

The 4th advised the jury as to the measure of damages in case they returned a verdict in favor of appellee. Appellant cites no authority and urges nothing in argument in support of its criticism of this instruction except that it was an improper statement of the law and should have been refused. This instruction is substantially in the same language as ah instruction given in the case of Cicero Street Ry. Co. v. Brown, 193 Ill. 274, which has since been approved in Chicago Terminal R. R. Co. v. Gruss, 200 Ill. 195; Chicago City Ry. Co. v. Gemmill, 209 Ill. 638; Chicago and Milwaukee Electric Ry. Co. v. Ullrich, 213 Ill. 170; National Enameling Co. v. McCorkle, 219 Ill. 557.

The 15th instruction told the jury that appellee was not bound to exercise an extraordinary degree of care; that all that was required of him was to exercise ordinary care, etc. An instruction identical in principle with this instruction was fully considered and approved in C. & A. R. R. Co. v. Pearson, 184 Ill. 386, and also approved and followed in Dickson v. Swift Co., 238 Ill. 62.

Appellee’s 17th instruction read that the plaintiff was not bound to prove his case beyond a reasonable doubt, but was merely bound to prove it by a preponderance of the evidence. This instruction was approved in Consolidated Traction Co. v. Schritter, 222 Ill. 364, and is also sustained in Taylor v. Felsing, 164 Ill. 331; Chicago City Ry. Co. v. Bundy, 210 Ill. 39; Chicago City Ry. Co. v. Nelson, 215 Ill. 436; Pier-son v. Lyon & Healy, 243 Ill. 370, and other cases that might be cited.

The 23rd instruction told the jury of the risks a servant assumed. An instruction similar to this instruction was held to state the law correctly in Mann v. Illinois Central Traction Co., 236 Ill. 30.

The court refused appellant’s instructions from 24 to 36 inclusive.

The 24th, 26th, 27th and 36th instructions related to the law of assumed risk and contained objectionable features in assuming various facts of negligence and charging appellee therewith, but so far as they contain correct statements of the law as applied to the facts in the case, they were fully covered by other instructions given on behalf of appellant. “The court is not required to give the jury more than one instruction upon a particular subject.” National Enameling Co. v. McCorkle, supra.

Appellant’s 25th and 28th instructions were cautionary. Instructions of this character may properly be given, but giving them is necessarily a matter very much within the discretion of the court, and their refusal cannot ordinarily be assigned for error. Birmingham Fire Ins. Co. v. Pulver, 126 Ill. 329; Chicago Union Traction Co. v. Goulding, 228 Ill. 164; Donk Bros. Coal Co. v. Thil, 228 Ill. 233. Moreover, appellant’s 2nd and 10th given instructions contained the same cautions as its 25th and 28th refused instructions.

The 29th, 30th, 31st, 32nd, 33rd, 34th and 35th were instructions directing the jury to disregard the several counts of the declaration. As each count of the declaration stated a cause of action, and as several of them were clearly supported by the evidence, there was no error in the refusal of any of these instructions, as it is a familiar doctrine that where any count of the declaration is sufficient and the negligence therein charged is established, a recovery may be had upon such count, and it is not reversible error to refuse to instruct the jury to disregard other counts in the declaration which are not supported by the proof. Chicago City Ry. Co. v. Foster, 226 Ill. 288; Scott v. Parlin & Orendorff Co., 245 Ill. 460.

Upon the whole record we are satisfied that substantial justice has been done, and there has been no reversible error in matters of procedure.

The judgment is affirmed.

Affirmed.