author: Mr. Presiding Justice Jett

text:
    George Elliott, Administrator of the Estate of Elnora Elliott, Deceased, Appellee, v. Atchison, Topeka & Santa Fe Railway Company, Appellant.
    Gen. No. 8,267.

      Opinion filed October 5, 1931.
    Lawrence, Nelson & Neagle, Emmet Trainor and F. W. Miller, for appellant.
    Hardy, Hardy & Hardy, for appellee.
   Mr. Presiding Justice Jett

delivered the opinion of the court.

This suit was instituted by George Elliott, administrator of the estate of Elnora Elliott, deceased, appellee, in the circuit court of Knox county against the Atchison, Topeka & Santa Fe Railway Company, appellant, on account of the death of appellee’s intestate.

A jury trial was had with a finding in favor of appellee in the sum of $2,999, upon which judgment was rendered, and this appeal followed.

For convenience appellee will be referred to as plaintiff and appellant as defendant.

The declaration consists of seven counts charging various acts of negligence in the operation of the train of the defendant company.

To the declaration the defendant pleaded the general issue. More than a year later the defendant withdrew its plea and filed a demurrer to the declaration which was overruled and the plea of the general issue was again filed by the defendant. It appears that on the afternoon of November 27, 1928, a Mrs. Johnson, Blanche Smith and Elnora Elliott, plaintiff’s intestate, left Knoxville, Illinois, in a Pontiac sedan automobile for the village of Laura in Peoria county. The automobile was owned by the husband of Mrs. Johnson, and was driven by her when the parties left Knoxville. At the time of the accident Elnora Elliott and Blanche Smith were riding in the back seat, and at about the hour of 1:45 in the afternoon, as the automobile was undertaking to cross the defendant’s double tracks at a highway crossing on the west side of the village of Laura, the automobile was struck by a passenger train of the defendant and all three of the occupants were then and there instantly killed.

It is the contention of the plaintiff that the automobile was traveling north at a speed not to exceed 8 to 15 miles per hour at the time of the approach to the crossing. The collision occurred at an intersection of state road 78 with the railway tracks at Laura, in the said county of Peoria; that the train of the defendant, at the time of the collision, was traveling west at the rate of 60 to 62 miles per hour. It appears that in the construction of the paved road on which plaintiff’s intestate was traveling, the defendant built a temporary line approximately parallel with route 78 upon which it hauled its cars of road-building materials ; that after the pavement was complete the rails were taken up and piled along the east side of the road, and on the company’s right of way. The piles of rails obstructed the view from the highway towards the east for the entire length, and in addition to the rails there was a clam-shell excavator, a road building machine in close proximity. There were a number of witnesses testified in the case with the usual and customary divergence in their testimony, but in the main they substantially agreed upon the material facts.

A number of reasons are assignéd by the defendant for a reversal of the judgment.

It is urged that the trial court erred in holding the declaration sufficient; in refusing instructions asked by it; in giving instructions asked by plaintiff; in excluding evidence offered by defendant; and in refusing to direct a verdict for the defendant.

The first question discussed by the defendant is that the declaration does not state a cause of action for the reason it failed to aver the suit was commenced within one year after the death of plaintiff’s intestate.

It is the contention of the defendant that, notwithstanding the fact that the record may disclose that the suit was brought within .one year after the death of the deceased, yet unless it is specifically averred in the declaration that the suit was commenced within one year after the death, it fails to state a cause of action. With this contention we cannot agree. The declaration avers that on November 27, 1928, the defendant was operating a certain railroad and Elnora Elliott was then and there riding as a passenger in an automobile and that the defendant then and there by its servants negligently and carelessly operated its train and struck the automobile in which plaintiff’s intestate was riding, and she was then and there kjlled.

The record discloses that the praecipe for summons in this cause was filed on January 24, 1929; that the declaration was filed January 25, 1929, less than two months after the date of the collision in question that resulted in the death of plaintiff’s intestate.

The question is, will the court take judicial notice of the date of the commencement of the suit and the filing of the declaration?

Linehan v. Morton, 221 Ill. App. 70, was a suit brought to recover damages for the death of a boy as a result of a collision between a bicycle ridden by the boy, and an automobile driven by the defendant. On page 74 the court in its opinion said: . “It is also contended by appellant that the declaration does not state a cause of action in that it does not allege the date of death, or when the action was begun. The case of Hartray v. Chicago Rys. Co., 290 Ill. 85, is cited on that point. In that case the declaration gave the date of the injury but not the date of the death, and the suit was brought more than a year after the date of the injury. It was held that there was no cause of action, it not appearing that the action was begun within the statutory period of one year, which fact went to the existence of the right of action itself. In the case at bar, however, it appears from the declaration that the injury which resulted in decedent’s death occurred November 14,1917, and the record shows that summons was issued in the following May, that defendant entered his appearance to the suit in the following June, and that the declaration was filed in the following July, about eight months after the injury declared upon. The court takes judicial notice of the date of the institution of the suit as it appears on the record or from the mark on the papers. (17 Amer. & Eng. Encyc. of Law 926, and authorities cited.) And it is unnecessary to allege in a pleading facts of which the court will take judicial notice. (Goodman v. People, 228 Ill. 154; Gunning v. People, 189 Ill. 165.) In fact, such matters should not be pleaded. (12 Encyc. Pl. & Pr. 1.)” The Supreme Court denied a petition for certiorari in above case.

O’Connell v. Yellow Cab Co., 222 Ill. App. 118, involved the same question, beginning at page 127, where the court said: “Counsel for the defendant have called our attention to Hartray v. Chicago Rys. Co., 290 Ill. 85, and contend that as the declaration does not in specific terms state that the action was brought within one year, it is defective. But it must be observed that in the instant case the declaration alleges that the disaster occurred on May 30, 1918, and the record shows that the declaration was filed on October 25, 1918, being less than five months after the injury, and, therefore, it must follow that the defendant was informed when the declaration was filed that less than twelve months had elapsed since the occurrence of the events charged.”

Lindelsee v. Chicago, Ottawa and Peoria Ry. Co., 226 Ill. App. 20, was a case brought to recover for the accidental death of plaintiff’s intestate. The declaration averred that plaintiff’s intestate was employed by the Illinois Central Railroad Company, but failed to aver that the said railroad was engaged in interstate commerce. Demurrers to the declaration were sustained in the circuit court on the grounds that the declaration did not show the plaintiff’s intestate to have been engaged in interstate commerce, and that it was therefore conclusively presumed that deceased was working under the protection of the Illinois Workmen’s Compensation Act, Cahill’s St. ch. 48, ¶ 201 et seq. In its opinion at page 23, the court among other things said: “It is not averred that the Illinois Central Railroad Company is a railroad having tracks extending beyond 'the borders of the State of Illinois and engaged in interstate commerce. Nor do we think such an averment is necessary. Courts will take judicial notice of whatever is, or ought to be, generally known within the limits of their jurisdiction. It is a matter within the common knowledge of the people of this State that both the Congress of the United States and the General Assembly of the State of Illinois have enacted legislation in aid of the construction of this railroad for the purpose of making it a common carrier extending the length of the Mississippi Valley and connecting the Great Lakes with the Gulf of Mexico. . . . And matters of which courts take judicial notice need not be stated in the pleading. (Encyc. Pl. & Prac., vol. 12, p. 1.)”

Moreover, Wall v. Chesapeake & Ohio R. Co., 200 Ill. 66, was a death case under the Injuries Act, Cahill’s St. ch. 70, requiring suit to be brought within two years after the death. The declaration showed on its face that more than two years had elapsed between the death and the bringing of the suit. A general demurrer to the declaration was sustained, defendant arguing that the question of limitation could be raised by demurrer, and the court held that such pleading is contrary to the established rules and precedents ; that the question must be raised by plea.

The Goldstein case, 286 Ill. 297, was a death case brought under the Injuries Act, Cahill’s St. ch. 70. Judgment was had for the plaintiff. On appeal, the defendant urged, as a ground for reversal, that the court refused leave to file a plea averring that the cause of action did not accrue within one year before the suit was brought, and at page 301 the court said: “It was a right of defendant given by statute to interpose the defense sought to be availed of,” and on page 302 the court further said: “That the suit was not brought within a year after the death occurred was a legal defense, and it was an abuse of discretion to deny defendant the right to plead that defense.” The cause was reversed and remanded with directions to give defendant leave to file its additional plea.

Carlin v. Peerless Gas Light Co., 283 Ill. 143, was a death case brought under the Injuries Act, Cahill’s St. ch. 70, and the defendant filed a special plea that the suit had not been brought by the plaintiff within a year of the death of her intestate. A demurrer was sustained to the plea and the defendant elected to stand by it. There was also a plea of not guilty, trial and judgment for plaintiff. On appeal the full error considered was a sustaining of the demurrer to the special plea. The decision of the court was, “In our opinion the demurrer to the special plea should have been overruled, and for the error in sustaining it, the judgment will be reversed and the cause remanded.”

It seems from the three cases last above cited that the court has held a failure to sue in the time limited by the statute is a matter of defense that must be raised by. plea; whatever the rule may be in that respect we are of the opinion that the declaration states a cause of action and that the contention of the defendant is not well taken.

It is next urged as a ground for reversal of the judgment that the court erred in refusing to give instruction 4 offered by it. Said instruction is as follows : ‘1 The court instructs the jury that if you believe from the preponderance of the evidence in this case that the defendant is guilty of negligence as charged by plaintiff in his declaration or some count thereof, and if you further believe from the evidence that plaintiff’s intestate, just prior to and at the time of the accident in question, was also guilty of negligence although but" slight negligence, and that her negligence, if any is shown by the evidence, contributed in any way, although but slightly, to the injuries resulting in her death, then you should not compare such negligence, if any, of the defendant to, or with such negligence, if any, of Elnora Elliott, and you should find the defendant not guilty. ’ ’ It was not error to refuse this instruction. It is contrary to the holdings of the court in Chicago City Ry. Co. v. Dinsmore, 162 Ill. 568; Chicago, R. I. & P. Ry. Co. v. Hamler, 215 Ill. 525.

It is next insisted by the defendant that it was error for the court to give the fifth and eleventh instructions offered by the plaintiff. The criticism of the fifth instruction is, it does not advise the jury that when obstructions are charged to be one of the proximate causes of an injury the defendant must have a reasonable time in which to discover and remove the obstructions. The instruction requires the plaintiff to prove by a preponderance of the evidence “that defendant knew or by the exercise of reasonable care, should have known” of the obstructions and failed to remove them, and then tells the jury that if they believe from the greater weight of evidence the failure to remove them was negligence which contributed to the injury, they should find for the plaintiff, if as stated in a former part of the instruction, the plaintiff was in the exercise of due care. Instructions should be based upon the evidence in a case, and when this one is read in the light of the evidence in this cause, there is no reason to think the jury was or even could have been mislead by it. If it did not mislead the jury into a mistaken or improper finding, the defendant has no just cause of complaint. These obstructions were there for a number of days in full view of all the agents and servants of the defendant, and the self-evident fact that they constituted a hazard was entirely ignored, no move being made to eliminate it.

As to instruction number 11, it was given in Passwaters v. Lake Erie and W. R. Co., and was approved in 181 Ill. App. 44; this instruction, so far as we have been able to ascertain, has never been held to be bad and was justified under the issues and the evidence in this cause.

Defendant complains of the giving of instructions 6, 7, 8, and 12 submitted by the plaintiff. Instructions 6, 7, and 8 are not subject to the objections made. They relate to the negligence of both the plaintiff and defendant. No special reason is assigned except that they submitted a question “upon which there could be no reasonable difference of opinion either in fact or in law. ’ ’

The record discloses that the defendant presented a number of instructions submitting the same questions transversely thus recognizing there could be a reasonable difference of opinion.

As to instruction number 12, no reason is assigned for the objection. It relates to the measure of damages. Complaint is made by the defendant of the exclusion of certain evidence. Meham, a witness for the defendant, testified in chief that before the car plaintiff was in had reached the track which he had just crossed from the north, he opened the door of his car, waving his hand and “hollered that a train was coming.” On redirect examination he was asked this question: “You stated you gave a warning of the train coming. Will you state what you said? ” An objection to the question was promptly sustained. It is said that a plat was offered in evidence as an exhibit. It is not shown in the abstract and the court will not search the record nor refer to it to find an error on which to base a reversal. That the defendant was guilty of negligence and that its negligence contributed to the collision and consequent injury is so clearly shown by the evidence that we deem it unnecessary to discuss that phase of the case.

A more interesting question arises. That is, does the evidence show the plaintiff was in exercise of due care for her own safety, or does it show she was guilty of negligence which contributed to her injury? The burden was on the plaintiff to show ordinary care, or due care, that is, the absence of contributory negligence on the part of his intestate.

In Greenwald v. Baltimore & Ohio R. Co., 332 Ill. 627, at page 632, the rule for the guidance of the court in determining whether the question shall go to the jury is laid down in the following words: “The question of due care on the part of a plaintiff is a question for the jury when there is any evidence given on the trial which, with any legitimate inference that may be legally and justifiably drawn therefrom, tends to show the use of due care, but where the evidence, with all legitimate inferences that may be legally and justifiably drawn therefrom, does not tend to show due care on the part of the plaintiff, the trial court is justified in instructing the jury to find a verdict for defendant. ’ ’ This we understand to mean is a question of law for the court to determine whether there is any evidence of due care, if the court finds there is such evidence it will be given to the jury to weigh, and from it determine, as a question of fact, whether it shows due care or not.

The record discloses that the jury were instructed at the suggestion of the defendant defining ordinary care as “that degree of care which an ordinarily prudent person, situated as the deceased was, as shown by the evidence before and at the time of the injury, would usually exercise for her own safety.” The defendant also informed the jury that “contributory negligence is want of ordinary care on the part of a person, that is to say, the want of such care as an ordinarily prudent person would have exercised under the same or similar circumstances, which either by itself or concurring with the negligence of the defendant, if any, proximately caused the injury. ’ ’ Here we have a rule, which, when applied under the supervision of a court to the facts in a particular case, is rigid enough to protect the defendant and flexible enough not to injure the plaintiff by its application. By the use of this rule we obtain the standard of conduct with which the acts of plaintiff must conform. It is a standard obtained under the rule by comparing the acts of the plaintiff with what the average mind would expect the acts of the average human to be under the circumstances of the particular case; not what the average mind would expect the rash, reckless, or foolhardy to do or omit to do nor yet what it would expect the ultra timid or extremely cautious to do or omit doing in the same situation. Such a standard may be used to measure the conduct in any case. It takes into consideration all of the evidence — all the facts and circumstances and proof, and with equal facility measures the conduct of the plaintiff whether she is crossing a railroad where the view is obstructed or where it is clear; whether she is proceeding along a wide, straight and level highway or one that is narrow with many curves and hills; whether she is afoot, on horseback, in an ox cart, carriage or car, whether she is a driver or passenger. After viewing the whole picture and determining the exact situation, was the plaintiff at and just before the accident, acting as a reasonably prudent person would be expected to act under like circumstances! If, in the judgment of the court, there is nothing in the evidence from which the jury might rationally conclude the acts or omissions of the plaintiff conform with this standard, the court following its judgment will so say and direct a verdict for defendant as a matter of law. If, in the judgment of the court there are facts and circumstances shown by the evidence from which the jury might rationally conclude the plaintiff acted in conformity with the standard, the court will then submit the question to the jury as one of fact.

In the instant case the court viewing the situation as shown by the evidence found there was some evidence “given on the trial which with any legitimate inference that may be legally and justifiably drawn therefrom tend to show the use of due care ’ ’ and pursuant to such finding the court gave the case to the jury on that question. The jury weighed the evidence and said the defendant was guilty of actionable negligence, and plaintiff’s intestate was free from contributory negligence. The trial court declined to disturb the finding. The evidence on what happened is contradictory at several points but there is no dispute about the speed of the train and very little as to the speed of the automobile, nor as to the character of the obstructions. These facts should be taken into consideration in passing on the conduct of the plaintiff’s intestate. Other circumstances to be considered in determining whether she was guilty of contributory negligence may be noted:

1. She was not able to drive a car, and that when she rode in one she was always a passenger.

2. There was no clear view to the east until one reached the switch track, it being the most southerly of the three tracks there.

3. The car made a great deal of noise passing over the fresh loose gravel.

4. If it stopped at the stop sign the view to the east was obstructed from there.

5. Two cars crossed from the north side just as plaintiff’s car was approaching from the south.

All of these things are to be considered and must enter into the determination whether the deceased was required to do anything in the one or two seconds it took to drive from the switch track to the north main. Did she, or would any one so situated, have time to do anything that would have prevented the accident? Can it be said, as a matter of law, she had any reason to think she was not being properly transported up to within two or three seconds, at the very most, before the crash, or that her behavior during that time or up to that time, contributed in any degree to the collision? Then there is also the character of the testimony of each witness to be weighed, and its probative force to be determined before we can say whether or not the conduct of the plaintiff’s intestate was that of an ordinarily prudent person. We are not unmindful of the fact that some courts of high authority, notably the United States Supreme Court, have used language seeming to hold that the omission of one particular act would under any condition or set of circumstances be sufficient to convict the plaintiff of contributory negligence as a matter of law, but in nearly all the cases we have read there was found some qualifying language, as in the Goodman case, 275 U. S. 66, in which Mr. Justice Holmes says: “For it appears to us plain that nothing is suggested by the evidence to relieve Goodman from responsibility for his own death.” Of course, when a court arrives at that conclusion it can and should say there is no evidence of due care. Due care being a necessary element, the court is bound to hold as a matter of law, the plaintiff cannot recover. The learned justice however proceeds with great caution using qualifying words to argue the question a little further, hut he does not" speak with regard to any other set of facts, he does not purport to change any rule or modify in any way the standard definition of due care.

In Chicago & Northwestern Ry. Co. v. Hansen, 166 Ill. 623, 628, the late Justice Cartwright speaking for the court said: “It seems to us impossible that there should be a rule of law as to what particular thing a person is bound to do for his protection in the diversity of cases that constantly arise and the question what-a reasonably prudent person would do for his own safety under like circumstances must be left to the jury as one of fact.”

In Gills v. New York, C. & St. L. R. Co., 342 Ill. 455, the court speaking through the late Justice Farmer after referring to the holding in the Goodman case approves what was said in the Hansen case, and used the following language, “What particular thing a person is bound to do for his protection in the diversity of cases that may arise and what a reasonably prudent person would do for his own safety must be left to a jury as a question of fact.” The same rule is announced in Dee v. City of Peru, 343 Ill. 36, 42.

With the entire scene before us we think there is evidence in this record to show the conduct of the plaintiff’s intestate was what might be expected of a reasonably prudent person under like circumstances and we are unable to say the verdict of the jury is manifestly against the weight of the evidence. Having considered the various objections raised and urged by the defendant to the action of the court during the trial and in rendering judgment on the verdict of the jury, we conclude that no reversible error was committed by the trial court and that the judgment of the circuit court should be affirmed, which is accordingly done.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Barry

license: Public Domain

text:
    Kathryn Jacobs, Appellee, v. Illinois Terminal Company, Appellant.
    Opinion filed September 12, 1931.
    Terry, Gueltig & Powell, for appellant.
    Roscoe Forth and J. B. Harris, for appellee,
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee recovered a verdict and judgment for $1,500 for personal injuries received when an automobile in which she was riding as a guest collided with a street car of appellant. At the request of "appellant two special interrogatories were submitted to the jury and were answered as follows: “Do you find that the plaintiff, Kathryn Jacobs, was in the exercise of due care and caution for her own safety at the time of the collision in question? A. — Yes.” “Do you find that the collision, and the resulting injury to plaintiff was caused by reason of the speed at which the automobile was driven, and not by reason of any negligence on the part of plaintiff or the defendant? A; — No.”

No motion was made by appellant to set aside the special findings and no question as to them was raised in the motion for a new trial. In the state of the record appellant is conclusively bound by the special findings of fact. Brant v. Chicago & Alton R. Co., 294 Ill. 606. That being true, appellant is in no position to insist that appellee was not in the exercise of reasonable care for her own safety immediately before and at the time of the collision. The only reasonable inference to be drawn from the answer to the second interrogatory is. that appellant was guilty of negligence which caused the injury. There was evidence, however, fairly tending to prove that as the driver of the automobile approached the crossing the motorman on the street car signaled her to come ahead. It was a question of fact for the jury to determine whether such a signal was given. If it was given and the motorman started across the intersection and did not give the driver of the automobile sufficient time to clear the street car tracks the jury could very well say that appellant was guilty of negligence. Kalmowitz v. New York City Interborough R. Co., 162 N. Y. S. 606; Cuddy v. Boston Elevated R., 208 Mass. 134, 94 N. E. 251.

We have carefully considered the court’s rulings on the admission and exclusion of evidence and the giving and refusing of instructions. We find no reversible error in any of those rulings. The instruction given on behalf of appellee as to the question of damages may be a little too broad but the jury was instructed that they should allow only such damages as were proven by the evidence. The evidence as to what appellee paid her physician and the hospital and her loss of wages on account of the injury was admitted without objection and appellant is in no position to complain in that regard.

While we do not approve of the remarks made by counsel for appellee in the argument of the case, yet objections were sustained to the most objectionable and we do not feel that wTe would be warranted in reversing the judgment because of the remarks of counsel. In view of the injuries sustained by appellee we cannot say that the verdict is excessive. Finding no reversible error in the record the judgment is affirmed.

Affirmed.


text:
    Laura Townsend, Appellant, v. Postal Benefit Association of Illinois, Appellee.

      Opinion filed September 12, 1931.
    William A. Mills, for appellant.

      June C. Smith, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee is a reincorporation, under the Act of 1927, of an association of the same name organized under section 29 of the Corporations Act of 1872, and which, on January 5, 1927, issued two certificates of insurance to Naomi DuComb with appellant as the beneficiary. The insured was 70 years of age when the certificates were issued. By reason of the reincorporation appellee was liable on the insurance contracts. Jones v. Loaleen Mut. Benefit Ass’n, 255 Ill. App. 170. Appellee was of the opinion, however, that the Act of 1927 nullified all certificates of members who were then over 70 years of age. It undertook to get rid of such members and its liability on the certificates by turning them over to an Arizona Association. It advised the insured that this was necessary to keep her insurance contracts in force and that she should pay all assessments to that association after May 1, 1928, and sent her riders to be attached to the certificates by which the Arizona Association assumed the liability under the certificates, although that association was not licensed to transact business in Illinois.

At the urgent solicitation of the appellee, the insured paid all assessments from May 1, 1928 to August 8, 1928, the date of her death, to the Arizona Association. Appellant brought this suit on the certificates on April 8,1929. A jury was waived and the court found the issues in favor of appellee and rendered judgment accordingly.

Appellee states in its brief and argument that whatever may have been the effect of what was done in its efforts to transfer its liability on these certificates to the Arizona Association, is not material as it is not claiming that a novation was effected. The original declaration filed on April 8,1929, was in assumpsit and was based upon the insurance certificates and the defendants named were C. 0. Spurgeon, 0. W. Capps and appellee. Spurgeon was the manager of appellee and Capps was the manager of the Arizona Association. The declaration averred that Spurgeon and Capps by means of false and fraudulent statements induced the insured to accept riders to the certificates whereby the Arizona Association purported to assume liability on the certificates. The averments were wholly insufficient to state a cause of action against Spurgeon and Capps in an action of assumpsit based on the certificates. On October 1, 1929, the suit was dismissed as to Spurgeon.

On the same day Capps defaulted and the transcript of the record contains the following recital: “Judgment in favor of plaintiff and against the defendant O. W. Capps for $744.00 and costs of suit.” Appellee insists that this shows the entry of a judgment against Capps and that by reason thereof appellant cannot recover from appellee under Gould v. Sternburg, 69 Ill. 531, and similar cases. Where a jury found the issues in favor of the plaintiff and assessed his damages at a certain sum, a motion for a new trial was overruled, and the court made the following entry: “Whereupon the court enters judgment upon the verdict,” it was held that the entry did not amount to a judgment. Faulk v. Kellums, 54 Ill. 188. Such an entry is not a judgment but was evidently intended as a guide to the clerk in making up his record at some subsequent time. Metzger v. Morley, 184 Ill. 81; Metzger v. Wooldridge, 183 Ill. 174. At that stage of the proceedings no final judgment could be rendered against Capps. Russell v. Hogan, 2 Ill. 552; Frink v. Jones, 5 Ill. 170; Wight v. Meredith, 5 Ill. 360.

So far as the record shows, in the case at bar, the entry of October 1, 1929, was never expanded and no judgment was actually rendered against O. W. Capps. Later an amended declaration was filed by leave of court against appellee alone, and that amounted to a dismissal of the case against Capps. Black v. Womer, 100 Ill. 328; Malleable Iron Range Co. v. Pusey, 244 Ill. 184.

Appellee has a by-law which provides that no suit shall be instituted against it to recover benefits unless it is commenced within twelve months from the date of the death of the member. This suit was begun within the year but appellee insists that appellant did not attempt to state a cause of action against it until she filed her amended declaration on November 20, 1930 and that by reason thereof the limitation clause in the by-law is a bar to the suit. By her original declaration, appellant clearly sought to recover against appellee and others on the certificates, which were set out in full. The declaration was in assumpsit but the other defendants were not parties to the insurance contracts and no judgment could properly be rendered against them, tinder section 39 of the Practice Act, Cahill’s St. ch. 110, ¶ 39, as amended in 1929, the court allowed appellant to file an amended declaration and she filed the same against appellee as the sole defendant. A change in a party to a suit does not, of itself, change the cause of action or ground of recovery, and unless a new cause of action is thereby injected into the declaration it is not subject to a plea of the statute of limitations. Metropolitan Life Ins. Co. v. People, 209 Ill. 42; Beresh v. Supreme Lodge Knights of Honor, 255 Ill. 122. We are of the opinion that under the. said statute as amended and the cases cited, appellant is not barred by the limitation clause in the by-law.

Appellee insists that appellant was not entitled to recover because she failed to notify it of the death of the insured within 15 days after such death. Appellee induced the insured to pay all assessments to the Arizona Association from May 1, 1928, to the date of her death. Appellant would naturally think that under the1 circumstances notice of the death should be sent to that association. Such a notice was sent. On February 20, 1929, appellee sent blank proofs of death to appellant’s attorney and asked him to have them properly executed and returned. The attorney complied with that request. On March 5, 1929, appellee wrote the attorney stating that the proofs were received but were being returned because the insured was not a member of the association at the time of her death but made no objection because of delay in furnishing such notice and proofs. The statement that insured was not a member at the time of her death was equivalent to a denial of liability.

When appellee elected to place its defense on the ground that the insured was not a member at the time of her death it will not be permitted, after costs and expenses have been incurred in prosecuting the action, to mend its hold and set up other defenses, even though at the outset such other defenses- may have been available. Elliott v. Home Mut. Hail Ass’n of Cherokee, 160 Iowa 105, 140 N. W. 431.

Before this suit was begun appellee wrote a letter to appellant stating that it was informed that she was about to begin a suit on the certificates; that the records of the association showed the insured was a certificate holder but that her certificates were nullified by the passage of a new law and that she was not a member of the association at the time of her death. That amounted to a denial of liability in any event for the reasons stated. Appellee now concedes that the certificates were not nullified by the passage of the new law. It also says that it is not now claiming that what it did in attempting to transfer its liability to the Arizona Association amounted to a novation. That being true it practically concedes that the insured was a member of the appellee association at the time of her death.

Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground and put his conduct upon another and different consideration. He is not permitted thus to amend his hold. He is estopped from doing it by a settled principle of law. Gibson v. Brown, 214 Ill. 330; Schuyler County v. Missouri Bridge & Iron Co., 256 Ill. 348-353.

In our opinion appellee has no defense to the action and the court should have rendered judgment in favor of appellant. The judgment is reversed and judgment will be rendered here in favor of appellant and against appellee for $832.50, which sum includes interest after 180 days from the death of the insured.

Judgment reversed and judgment entered here.

“The clerk will insert in the judgment the following: 1 The court finds that appellee is indebted to appellant in the sum of $832.50.’ ”


text:
    John M. Tregoning, Appellee, v. Charles Tregoning, Appellant.

      Opinion filed September 12, 1931.
    Bueus Neely and Geo. T. Carter, for appellant.
    Hal G. Gallimore, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee sued to recover the balance of the purchase price alleged to be due him on the sale of his interest in a coal mining firm. The general issue and a plea of payment were filed and appellee recovered a verdict and judgment for $550.

Appellee offered evidence tending to show that he sold his interest in the firm for $650, and that he had been paid $100. Appellant offered evidence tending to show that while the purchase price was $650, yet the agreement was that if the firm debts exceeded the firm assets and he paid such excess, the price should be reduced by the amount of such excess. He also offered evidence tending to show that there was an excess which he paid and that it was greater than the purchase price.

The burden was on appellee, under the plea of the general issue, to prove the contract. This required him to prove that the payment of the purchase price was not conditional as claimed by appellant. McKenzie v. Stretch, 48 Ill. App. 4.10.

The court instructed the jury that appellant had filed a plea of payment; the filing of which was an admission on his part that he had made the agreement to purchase as alleged in the declaration but he sought to avoid payment because of misrepresentations made by appellee; that this is an affirmative defense and it is the duty of appellant to prove by the greater weight of the evidence that appellee made misrepresentations to appellant relative to the financial condition of the firm upon which appellant acted to his detriment; that if appellant failed to make such proof to your satisfaction by the greater weight of the evidence, you should find for appellee.

Under the general issue appellee was required to prove the contract relied upon. The fact that a plea of payment was filed did not relieve him from that burden. One plea cannot be taken advantage of to help or to vitiate another, and is not either an admission or evidence of a fact denied in another plea. West Chicago St. R. Co. v. Morrison, Adams & Allen Co., 160 Ill. 288, 295; Barker v. Barth, 88 Ill. App. 23. The burden was on appellant to prove payment. He offered no evidence in support of that plea. His real defense was that according to the terms of the purchase, the purchase price was to be reduced'by the amount of the excess of the debts over the assets of the firm, in case such excess was paid by appellant. The real controversy was in regard to the terms of the sale and the burden of proof as to that question was upon appellee. The court erred in advising the jury that this was an affirmative defense, which must be proved by appellant by a preponderance of the evidence.

The instruction was also erroneous in telling the jury that appellant was required to prove his defense to their satisfaction. Herrick v. Gary, 83 Ill. 85; Teter v. Spooner, 305 Ill. 198. Appellee’s ninth and eleventh instructions should not have been given.

Counsel for appellee concede that some of the instructions were erroneous but they insist that appellee made out such a clear case that the judgment should be affirmed. We cannot say that the giving of the instruction which we have set out in substance, was harmless error. The evidence as to the terms of the contract was conflicting. As the case may be again tried, we refrain from expressing any opinion as to the merits. We would call attention to the fact that appellant’s first and second instructions are erroneous because they refer the jury to the declaration and leave it to them to say what are the material allegations thereof. The fourth is erroneous because the jury may be. in doubt about a certain fact, yet if they believe from the evidence that such fact was proven, that is sufficient. The sixth refers specially to the testimony of appellant and should not have been given. The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Coudy Bros. Lumber Company, Appellant, v. Board of Education et al., Appellees.
    Opinion filed September 12, 1931.
    • M. ft. Sullivan and Warnock, Williamson & Burroughs, for appellant.
    Dent, Dobyns & Freeman and Wheeler & Oehmke, for appellees; Sidney K. Jackson,- of counsel.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Field Construction Company was awarded a contract for the erection of a school building, the contract price being $167,489. The contractor was required to furnish a surety bond for one-half of that amount within ten days. At that time the contractor had agreed that if it secured the contract it would purchase mill work and building material from appellant to be used in construction of the building to the amount of about $17,000. Albert II. Yeith was the vice president, treasurer and manager of appellant. The contractor applied to the agent of the Hartford Accident and Indemnity Company at St. Louis, Mo., for a bond and was informed that from the showing made, the contractor did not have sufficient assets to justify that company in executing the bond. The agent informed the contractor that the latter should have $20,000 in cash before he could execute a bond. Thereupon the contractor advised Mr. Yeith as to the situation. Appellant and the Granite City Supply Corporation then indorsed a note of $20,000 and enabled the contractor to procure a loan for that amount. The contractor then advised the agent of the Hartford Company that it had borrowed $20,000 and the agent declined to execute the bond because the assets of the contractor had not been increased.

Mr. Yeith was advised as to the aforesaid facts and he suggested that the contractor should make application to the agent of the Century Indemnity Company for 'a bond. He and Mr. Field, of the Field Construction Company, called upon the agent who informed them that he would communicate with the Chicago office of the company and would .have a man there the next morning. Mr.. Field testified that on the following morning he went to appellant’s office and met Mr. Yeith; that Yeith told him that in making a financial statement to the Century Indemnity Company he should put in $20,000 as cash assets but that he shouldn’t mention the $20,000 note upon which it had been procured. This is denied by Mr. Veith and also by Mr. Coudy who says he overheard the conversation. Mr. Veith admitted that he knew that the contractor would be required to furnish a financial statement before any surety company would execute a bond. He knew the experience that Mr. Field had with the Hartford Company when the agent of that company had been informed that the $20,000 had been borrowed from the bank. The time for furnishing the bond had almost expired at that time. In the state of the proof we would not be warranted in holding that the conversation between Mr. Veith and Mr. Field was not substantially as testified to by Mr. Field.

Mr. Field and Mr. Veith then went to the office of the agent of the Century Indemnity Company and met the man from Chicago who took a blank financial statement and questioned Mr. Field as to the assets and liabilities of the Field Construction Company. While Mr. Veith says that he was not present at the time the financial statement was prepared and signed by Mr. Field, yet the preponderance of the evidence is to the effect that Mr. Veith was present during all of the time while the financial statement was being prepared and signed. The financial statement was to the effect that the contractor had $20,000 in cash on deposit in the bank and that it had no liabilities. It was arranged at that time that checks drawn by the contractor should be countersigned by Mr. Veith before they were paid. The Century Indemnity Company then executed the bond in the sum of $83,744.50.

Thereafter, at the suggestion of Mr. Veith, the contractor drew a check for $10,000 which was countersigned by Mr. Veith, and was used in making payment of that amount upon the $20,000 note held by the bank. The contractor was also indebted to appellant on an old bill which was not contracted with reference to this school building and at Mr. Veith’s suggestion a check for $800 was drawn by the contractor, countersigned by Mr. Veith and made payable to appellant and was applied on that bill.

The contractor became financially involved and it became necessary for the Century Indemnity Company to complete the contract, which it did, and for which that company paid out $7,258.31. The board of education then had in its hands $14,329.95 which was the balance of the contract price then unpaid. Appellant and the Granite City Supply Corporation filed a bill for a mechanic’s lien under section 23 of the Mechanics’ Liens Act, Cahill’s St. ch. 82, Tf 23, to enforce a lien against that fund, appellant then claiming a balance due of $7,583.84 and the Granite City Supply Company claiming a balance due it of $6,775.83. The court found that the latter company was entitled to a lien for $6,775.83 and as to that matter there is no controversy.

The court found and decreed that appellant aided and assisted the contractor ip. the perpetration of a fraud upon the Century Indemnity Company and for that reason appellant was not entitled to a lien; that the balance of the fund in the hands of the board of education, in equity and good conscience, should be paid to the Century Indemnity Company. From a careful consideration of the evidence we find no error and the decree is affirmed.

Affirmed.


author: Mr. Justice Edwards

text:
    National Fire Insurance Company of Hartford, Connecticut, Appellant, v. Charles W. Selden and Lulu Selden, Appellees.

      Opinion filed September 12, 1931.
    North, Linsoott, Gibboney & North and W. C. Kane, for appellant.
    D. F. Bumsey, for appellees.
   Mr. Justice Edwards

delivered the opinion of the court.

On July 6, 1924, appellees placed a mortgage on certain lands, owned by them in Saline county, in favor of the First Trust and Savings Bank of Harrisburg, Illinois, to secure notes aggregating $3,600. Payments, amounting to $1,500, were subsequently made on the principal, and the interest paid in full to October 10, 1925.

On July 26, 1924, appellant issued its policy of insurance to appellees, upon the dwelling house and barn located upon the mortgaged premises, in the sum of $3,000, which policy was delivered to the said mortgagee, H. A. Murphy, vice president of the bank, having requested its issuance, and appellee, Charles W. Selden, having paid the premium. The premises insured were destroyed by fire on or about July 4, 1926.

The insurance policy provided the loss, if any, should be paid to the mortgagee, as its interest might appear, and also contained the following clauses:

“This policy, as to the interest therein of the said payee, as mortgagee (or trustee) only, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property, nor by the commencement of foreclosure proceedings, nor the giving of notice of sale relating to the property, nor by any change in' the interest, title or possession of the property, nor by any increase of hazard.”

“On payment to such- mortgagee (or trustee) of any sum for loss or damage hereunder, if, this Company shall claim that as to the mortgagor or owner, no liability existed, it shall, to the extent of such payment, be subrogated to the mortgagee’s debt, but without impairing the mortgagee’s (or trustee’s) right to sue; or it may pay the mortgage debt and require an assignment thereof and of the mortgage.”

On April 7, 1927, appellees began an action at law, upon the policy, to recover for the loss sustained by the fire.

On February 10, 1927, said mortgagee assigned the notes and mortgage to one Wilson Gray, a soliciting agent for appellant, and he in turn, on October 8,1927, duly assigned the same to his principal, who filed its bill to foreclose the mortgage on November 12, 1927.

By leave of court, the bill of complaint was amended; appellees answered the bill as amended, and filed a cross-bill which was answered by appellant. The cause was referred to the master in chancery to take and report proofs. Upon the filing of the master’s report, the cause was heard before the chancellor, who decreed that the original amended bill be dismissed for want of equity. Appellees dismissed their cross-bill before the entry of said decree.

Appellant urges three grounds for reversing the decree. That its payment of the notes and mortgage to the mortgagee, and taking an assignment therefor, gave it the right to foreclose the said mortgage; also, that the premises were not occupied at the time of the fire; and that suit thereon was not brought within six months of the loss; both of which last stated propositions were required by the terms of the policy.

The clause giving appellant the right (where it denied liability to the mortgagor), to pay the loss of the mortgagee, and be subrogated to its rights, to the extent of the payment, or to pay the mortgagor’s debt and require an assignment of same, together with the mortgage securing it, have been held to be valid and enforceable provisions of a policy of fire insurance. Clark v. Trainor, 237 Ill. App. 269.

The proof shows that appellant disputed its liability to appellees; recognized its obligations to the mortgagee; paid to it the mortgagor’s debt, and took an assignment of the notes and the mortgage securing same. This it had a right to do by the terms of the policy, and having done so, became the owner of such notes and mortgage, with a right to enforce the payment of the debt by any lawful means, the principal and most effective of which was a suit for foreclosure. Hence we are of opinion that appellant was entitled to file and prosecute its bill for foreclosure, subject, of course, to any just set-offs, deductions or counterclaims on the part of appellees, which were properly pleaded and proven.

Appellees did not sue at law, for the damage sustained, until about nine months after it occurred. They were required by the terms of the policy to do so within six months of the loss. They seek to avoid the effect of this condition by claiming that appellant’s conduct was such as to induce in them a belief that it had waived such requirement, and that it is now estopped to claim the benefit of said provision.

Appellee, Charles W. Selden, testified that D. E. Cavender, an agent of appellant, told him, at different times within the six months following the fire, that the loss would be adjusted. This is denied by Cavender. It appears from the proof that Cavender was what is known as a soliciting-agent. His only authority was to receive and transmit, to his principal, applications for insurance, together with money and notes received as premiums, and that he was not empowered to negotiate or make adjustments.

An agent of this character has no right to waive provisions and conditions of a policy of insurance, and cannot, by assuming such power, bind his company, unless he has been held out by his principal, as such agent, under circumstances that would warrant the insured in believing he had the authority assumed. Pardon v. Wasvary, 249 Ill. App. 327.

There is nothing in the evidence to indicate that the appellant had ever held Cavender out as possessing such power. Even if Cavender did make the statements as claimed, they were unauthorized and had no binding effect on appellant.

No adjuster or person with right to make settlement, ever talked or communicated with Selden, regarding his loss; in fact practically all, relative to a consideration of the fire and resultant loss, was between Murphy, vice president of the mortgagee bank, and the agents of appellant.

From a careful consideration of the testimony of Mr. Murphy, it appears that his negotiations with appellant were for the purpose of securing to the bank its loss, and not that it was in the interest of, or for, the mortgagors. True, he told Selden he thought he could make a collection in the matter. It does not appear when this occurred, whether before or after the expiration of the six months’ limitation for bringing suit. The fact that Murphy was trying to secure an adjustment of the bank’s loss, placed bim in a position antagonistic to that of appellant, and negatives any inference that he was acting for the insurance company.

The appellees, by setting up this matter of waiver or estoppel as an affirmative defense, assumed the burden of establishing same by the greater weight of the evidence. In our judgment they have failed to make such degree of proof.

The determination of the foregoing propositions decides the case, and it is not necessary to consider the remaining point urged, namely, whether the premises were occupied at the time they were destroyed.

The decree is reversed and the cause remanded to the circuit court, with directions to enter a decree of foreclosure in favor of appellant.

Reversed and remanded with directions.


text:
    Emma L. Scott, Executrix of the Estate of Ralph B. Scott, Deceased, Appellee, v. Venice State Bank, Appellant.
    Opinion filed September 12, 1931.
    Harry Faulkner and Geo. D. Burroughs, for appellant.
    M. R. Sullivan and Pope & Driemeyer, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

Emma L. Scott, as executrix of the estate of Doctor Ralph B. Scott, deceased, filed her bill in the circuit court of Madison county, averring that the said decedent in his lifetime, while president of the Venice State Bank, on December 1, 1927, gave his note for $1,000, without interest and due on demand, to said bank; and also, on January 9, 1928, gave to said bank his other note in the sum of $2,500, due in six months, with interest at seven per cent from maturity, the latter note being secured by certain stocks deposited as collateral therefor; that said notes were without consideration, and praying that they be surrendered and canceled, and with the collateral, turned over to her as such executrix.

Demurrer to the bill being overruled, defendant answered. Exceptions to the answer were sustained, and defendant filed an amended answer, setting forth that the defendant, at the times of the execution of the notes, was insolvent, which fact was known to the said Ralph B. Scott, and that he and other directors gave their notes to restore the impairment of the capital and surplus of defendant; that on November 8, 1929, the bank was closed by the State Banking Department; that during all of said time the bank was insolvent, and that the notes in question remained as assets of the bank, and later, in December, 1929, were sold with other assets to the Union Trust Company to raise funds to pay off the depository liability. Complainant filed replication to the amended answer, and the cause was referred to the master in chancery to take and report proofs and findings.

The master rendered his report recommending a decree for complainant. Exceptions to same were overruled and decree entered directing that the notes in question, together with said collateral, be surrendered.

This decree wTas based upon certain findings, the principal of which were that the notes were without consideration; were placed in the bank as aecommodation paper, and were to be returned to Scott when they had served their purpose; that they were given upon agreement with the bank that when it had made money enough to replenish the capital stock to the value required, it would return the notes to the makers and they would not be required to pay the same, and that no creditor had lost, nor would lose, anything by the surrender of the notes.

The bill of complaint averring, as a single ground for relief, lack of consideration for the notes, the court was without authority to make findings as to any other of the items just above mentioned, they not being in issue in the suit.

If the complainant had conceived that the evidence tended to prove such matters, and desired to rely upon them as grounds for relief, she should have, before final decree, moved the court for leave to amend her bill. Complainant, however, having elected to abide by her bill of complaint as originally drawn, is bound by the limitations of its allegations and is restricted to a single ground as a right of recovery, namely, that the notes in question were given without consideration. Dorn v. Gender, 171 Ill. 362; Commissioners of Highways v. Deboe, 43 Ill. App. 25, 31.

■ There is no real dispute as to the principal facts. It ■appears from the proof that Scott was president, director and stockholder in the Venice State Bank, capitalized at $25,000, represented by 250 shares. In November, 1927, the bank became financially embarrassed, and three of the directors, among them Scott, consulted the chief bank examiner at Springfield, who advised the giving of notes instead of making a stock assessment. This was done on December 1,1927, Scott giving his note for $1,000, due on demand and without interest, and certain of the other directors and stockholders also giving their notes, all of which were placed as bills receivable in the assets of the bank. Shortly thereafter the bank became further involved financially and the directors, including Scott, met and agreed to place other notes in the bank to the amount of $8,500, Scott giving his note on January 9,1928, for $2,500, due in six months, with interest at seven per cent from maturity, and other directors also giving their notes in varying amounts, all of which were likewise placed among the assets of the bank as bills receivable.

The bank’s condition grew worse, and in May, 1928, the directors, including Scott, borrowed from the National City Bank of St. Louis, $25,000, by giving their joint note therefor. The proceeds of this note were turned over by Scott to the State bank examiner, and by him placed in the Venice State Bank, he at the same time tailing out of the bank objectionable paper to the amount of $23,700, leaving, however, in the assets the notes of Scott and others, executed on December 1 and January 9 next preceding.

In June, 1928, a month after the giving of the $25,000 note, Scott died, and complainant was appointed executrix of his estate. She, in her representative capacity, paid a proportionate share of the loan to the National City Bank, and on October 5, 1928, filed this suit.

The bank’s financial condition having become seriously impaired, on November 7, 1928, the directors turned the institution over to the State Auditor to liquidate its affairs. The assets of the bank were sold, including the two Scott notes, some of the creditors being paid in full, while others compromised their claims.

Doctor Scott, as president, director and stockholder of the Venice State Bank, was vitally interested in its continuation as a going institution. It is apparent that he and his associates gave to the bank said notes, absolute on their face, to increase its credit, give to it stability, restore its solvency, and avoid liability arising from a possible assessment on their stock,

The courts have held that notes so executed are based upon a valid consideration. In State Bank of West Pullman v. Hovnanian, 250 Ill. App. 144, 156, where a note was given under similar circumstances, the court says: “It may be said, further, on the subject of consideration, that even if one were necessary, we think that bringing about the solvency of the bank and the consequent expected release from liability from an assessment on his stock was a valid consideration.” To the same effect are Liberty Trust Co. v. Price, 259 Mass. 596; Farmers’ Equity Co-op. Ass’n of Dresden v. Tice, 122 Kan. 127; Queensboro Nat. Bank of City of New York v. Kelly, 220 App. Div. 515, 221 N. Y. S. 703.

We are of opinion that the notes for $1,000 and $2,500 given by Ralph B. Scott to the Venice State Bank were based upon a sufficient consideration, and that the decree of the chancellor finding to the contrary was erroneous.

For the reasons stated the decree of the circuit court of Madison county is reversed, and the cause remanded with directions to dismiss the bill for want of equity.

Reversed and remanded with directions.


author: Mb. Justice Fulton

text:
    John C. Willis, Appellant, v. Township of Douglas, Effingham County, Illinois, Appellee.

      Opinion filed September 12, 1931.
    Mo Callen Brothers, and Parker & Bauer, for appellant.
    M. O’Donnell and R. M. Michaelree, for appellee.
   Mb. Justice Fulton

delivered the opinion of the court.

This is a suit in assumpsit brought by the appellant, John C. Willis, to recover a balance claimed to be due him for services as assessor of Douglas township. He was elected in April, 1928, for the years 1929 and 1930. He met with the board of town auditors on March 26, 1929, at which conference the board passed the following resolution: “Moved by Martin Jalde and seconded by Russell Miehaelree, that the Assessor’s salary be fixed at Ten Dollars ($10.00) per day, including all deputy hire and other expenses. Motion carried.”

Appellant filed a declaration containing the common counts and two special counts. A general demurrer was filed and sustained as to the special counts. Appellant filed an amendment to the declaration to which a demurrer was filed and sustained. Appellant filed another amendment to the declaration, to which appellee again demurred and the demurrer was sustained. The appellee then joined issue on the common counts and by agreement a jury was waived and the cause submitted to the court. After hearing proofs, the court entered judgment for the appellant for $155 and costs of suit. Appellant brings an appeal from said judgment to this court.

Appellant performed the duties of assessor for the years 1929 and 1930, and prepared and swore to statements covering his services, which were duly filed with the township clerk. The statement for 1929 claimed two days ’ work in March, 30 days in April, 31 days in May, 29 days in June, and one day in August, a total of 94 days at $10 per day. The board of town auditors met and allowed the claim at $800, or $140 less than the amount of appellant’s claim. Appellant’s statement for the year 1930 claims one day’s work in March, 30 days in April, 31 days in May, 26 days in June and one day in July, a total of 89 days at $10 per day. He was paid $280 as part payment and appellee concedes that it owes $155 more, the amount of the judgment, but $455 less than amount claimed by appellant.

It is the contention of appellant that a valid contract was entered into between himself and the board of town auditors on March 26, 1929, and that he is entitled to be paid for his services at the rate of $10 per day, for each day’s service as shown in his statements.

The appellee insists that the town board of auditors had no authority to make the contract for services in March, 1928, and that it was entirely within their discretion to pass upon the statement filed by appellant after the work was done and to then fix the compensation.

Paragraph 98, Cahill’s Statutes 1929, ch. 120, provides as follows: “The pay of assessors and deputy assessors shall, from time to time, in counties not under township organization, be determined and fixed by'the county board, and in counties under township organization, by the town board of auditors. Such pay shall be for the time necessarily employed in making the assessment, to be paid county assessors and their deputies out of the county treasury, and town assessors and their deputies out of the town treasury.”

Paragraph 313, Cahill’s St. ch. 120, provides that in townships of not less than 5,000 inhabitants the assessor shall receive not less than $5, nor more than $10 per day. The statute also provides that the work of the assessor shall be done between the first day of April and the first day of June, and paragraph 332 provides that he shall on or before the first day of June for the year for which the assessment is made, return the assessment books to the county supervisor of assessments.

We do not find any warrant in law for permitting a township assessor to work all through the month of June, or days in March or July and receive pay for the same. Including Sundays, there are 61 days in April and May during which an assessor should work. Counting 122 days for both the years, 1929 and 1930, the appellant would be entitled under his alleged contract to the sum of $1,220 for his entire term. He has been paid $1,080 by the board and has a judgment for $155, which will make a total payment of $1,235 for the two years, so that at the rate of $10 per day he has been paid in full for all the time the law provides.

Paragraph 99 of the above statute provides as follows: “An assessor or deputy assessor shall not be entitled to pay unless he has performed the labor and made return in strict compliance with law.” We do not believe appellant can complain of the amount of this judgment, and are of the opinion that there is no warrant in law for his recovering any additional amount from Douglas township.

Viewing this case as we do, it is not necessary to discuss the question of pleading raised in the briefs of appellant.

The judgment of the circuit court will be affirmed.

Affirmed.


author: Mr. .Justice Fulton

text:
    John Papista, Plaintiff in Error, v. Kuhnen & Siegrist Hardware Company, Defendant in Error.
    Opinion filed September 12, 1931.
    F. M. Guinn, for plaintiff in error.
    Glenn B. Wilson, for defendant in error.
   Mr. .Justice Fulton

delivered the opinion of the court.

On September 20,1929, defendant in error instituted a suit in replevin against plaintiff in error in the circuit court of Bond county, by which replevin, property alleged in affidavit to be of the value of $2,000, was seized. After case had been dismissed for want of prosecution and afterwards reinstated, the plaintiff in error filed two pleas. In one he pleaded property in plaintiff in error and in the other he denied wrongful detention, etc. There was no replication or issue joined on pleas. On July 15, 1930, the case was called for trial and upon motion of defendant in error suit was dismissed at its costs.

Plaintiff in error at once filed a motion that the court order a retorno habendo. The motion was denied and no order of return was entered. The plaintiff in error then entered a motion that the court impanel a jury to assess damages, -in which motion suggestion of the amount and character of such damages was set forth in the motion. This motion was also denied by the court and the plaintiff excepted to the ruling of the court in denying each of said motions. Plaintiff in error secured the usual orders for appeal and upon the refusal of the court to grant said motions, prosecutes this writ of error.

Paragraph 22, chapter 119, Cahill’s Ill. Rev. Statutes, provides as follows: “If the plaintiff in an action of replevin fails to prosecute his suit with effect, or suffers a nonsuit or discontinuance, or if the right of property is adjudged against him, judgment shall be given for a return of the property if such property has been delivered to the plaintiff, and damages for the use thereof from the time it was taken until a return thereof shall be made.”

Plaintiff in error argues that in a situation of this kind the trial court has no discretion, but upon dismissal of the suit must enter judgment for a return of the property.

We believe the proper procedure in suits of this character is suggested and outlined in the case of American Preservers’ Co. v. Bishop, 184 Ill. 68, and it would have been better for plaintiff in error to have made a motion for formal judgment before asking an order for a writ of retorno habendo. However, the statute plainly indicates that upon a dismissal by a plaintiff of an action of replevin the defendant is entitled to a judgment order of the court and while the motion of the plaintiff in error in this case was quite incomplete and informal, still we think it was error on the part of the court to deny the motion asking for a writ of retorno habendo, and in refusing to enter the proper judgment order.

Informalities and slight technical errors in procedure should not rob plaintiff in error of his substantial rights under the statute. Bledsoe v. Ziegenhein Bros. Furniture Co., 161 Ill. App. 146.

The judgment will be reversed and the case remanded to the circuit court of Bond county, with instructions to enter a judgment order in favor of plain-' tiff in error for the return of the property, and also for a writ of retorno habendo, together with such order as will provide for a hearing on assessment of damages.

Reversed and remanded with directions.


author: Mr. Justice Fulton

text:
    Lenka Liptak, Appellee, v. The Security Benefit Association, Appellant.
    Opinion filed September 12, 1931.

      Terry, Gueltig & Powell, A. W. Fulton and Jos. F. Sheen, for appellant.
    M. B. Sullivan, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

This is a suit in assumpsit on a benefit certificate issued by The Security Benefit Association, a fraternal benefit society, on the life of Julius Liptak, the appellee being Lenka Liptak, wife of the insured.

The declaration consisted of one count alleging the issuance of the certificate by appellant on the life of Julius Liptak for $1,000 on November 26, 1921; the death of the insured on November 15,1929; that proofs of death were made in apt time; that all the conditions of the policy were complied with prior to death and subsequent thereto, and that there was due to appellee the sum of $1,000 and interest at 5 per cent from the date proofs were furnished. No general issue was filed by the defendant, but it filed a special plea setting up that the contract of insurance consisted of the written application, the benefit certificate and the by-laws of the society.

The plea further sets up a by-law known as section 112 providing in substance that any member who failed to pay any monthly assessment before the last day of the month would stand suspended without further notice or action on the part of the association, its officers or local council; also section 114, which provided for reinstatement within 60 days if the member was in good health at the time of making payment for reinstatement.

Plea further alleged failure on the part of insured to, pay assessment due for the month of June; that payment later in July was made for the purpose of reinstatement and that Liptak at that date was not in good health, and the money paid to company during July was tendered back to the insured and that in any event amount due should not exceed $958.

Replication was filed by appellee denying the failure to pay June assessment during the month and alleging payment of same to one J. R. DeBow, agent of appellant.

At the beginning of the trial on the examination of the jury, after the jury was sworn and before opening statements were made and before the taking of any testimony, the appellant made a motion asking to take the lead in the examination of the jury and that it was entitled to open and close the case. Counsel for appellant stated that for the purpose of the motion he would admit that benefit certificate sued on was regularly issued to Julius Liptak; that he was the husband of the beneficiary; that he was a member up to the end of May, 1929; that Julius Liptak died on November 13, 1929; that notice and proofs of death were furnished appellant by the beneficiary, and that the by-laws referred to in the certificate were the by-laws he produced and tendered in court. .

At the close of the evidence and before argument the appellant renewed its motion to open and close the argument. Appellee’s attorney objected to each and all of said motions and in each case the objection was sustained. Both at the close of the plaintiff’s testimony and at the close of all the evidence the appellant moved for a directed verdict and each time the motion was denied.

The appellee offered no instructions and the court gave six instructions requested by the appellant. The jury returned a verdict for $1,000 in favor of the appellee. Motion for a new trial was overruled, judgment entered and appeal brought to this court.

The appellant contends that the failure to allow the appellant to open and close the case was prejudicial and reversible error; that the evidence failed to show payment to the proper officer of the June 1929 assessment, during the month of June, and that by reason thereof the insured was suspended and because he was in bad health he was not legally reinstated by payment-in July; that the court erred in not granting a motion for a directed verdict, and that the rulings of the court throughout the trial were erroneous and prejudicial to the appellant.

Appellant insists that the denial of its motions throughout the trial for the right to take the lead in the case and to open and close the testimony as well as in the argument to the jury, deprived it of a substantial right and was sufficient error to reverse the case.

While it is true that appellant did not file a general issue but relied on the defense set forth in its special plea, and while the facts which appellant offered to admit before any proofs were taken, would ordinarily constitute a prima facie case in suits of this character, still the special plea affirmatively alleged the nonpayment of the June, 1929, assessment during that month and also alleges that under no circumstances could the recovery be more than $958. With this situation confronting her, appellee insisted upon her right to put in testimony first and to open and close the case.

In the case of Atkinson v. National Council of Knights & Ladies of Security, 193 Ill. App. 215 on page 223, the court said: “At the close of all the evidence the defendant asked to open and close the argument to the jury, and assigns error that the court refused that request. It had admitted before the introduction of evidence ‘that the plaintiff has a prima facie case and all they need to do in the first instance is to introduce the contract of insurance and proof of loss.’ This left appellee to open the case in introduction of evid.enee, which she did; and whether under the pleadings she was compelled to do so or not, appellant cannot complain that the court at its suggestion treated the issues as requiring proof in the first instance by the plaintiff; and having conducted the trial on that theory to the close of the evidence it was not error to refuse the request.”

While in this case appellant made its motion to take the lead at the earliest opportunity and renewed its motion at every step during the trial, it is our opinion that the court had the right to exercise his discretion as to the conduct of the trial, and the denial of the motions of appellant was not reversible error.

The question of whether or not the June assessment was actually paid during that month and the question of agency and authority of J. R. DeBow to collect the assessments for appellant were pure questions of fact and the jury were fully empowered to pass upon those questions adversely to the appellant if they thought the evidence warranted it.

We believe the testimony is amply sufficient to sustain the verdict of the jury on the questions of fact.

We do not find any substantial error in the record and the judgment is affirmed.

Affirmed.


text:
    Gertie Silkwood, Appellant, v. Ennis Silkwood, Appellee.

      Opinion filed September 12, 1931.
    Rehearing denied and opinion modified October 27, 1931.
    Everett Lewis and W. Joe Hill, for appellant; Roy C. Martin-, of counsel.
    Walter W. Williams, Thurlow G. Lewis, R. E. Smith and Carter H. Harrison-, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

Appellant, Gertie Silkwood, filed her bill for divorce against her husband, Ennis Silkwood, in the circuit court of Franklin county, to the September, 1930, term of such court. The bill charges adultery and extreme and repeated cruelty; avers that the parties were and had been, for a considerable period of time, partners in the operation of several refreshment stands; that the business had proven profitable; that as a result the defendant had in his possession a large sum of money, the profits of the partnership, in which she had an undivided equal interest; that he was using such funds in speculating, and same were liable to be lost.

She prayed for a decree of divorce, an accounting of partnership funds, and a division of same; asked that the husband be enjoined from spending or using such funds, and that a receiver be appointed for the assets of the firm.

A temporary injunction was issued by the court, without notice and without bond.

Appellee filed his answer denying the allegations of the bill as to the adultery and cruelty charged therein, or the existence of the partnership, and also moved to dissolve the injunction. He then filed his cross-bill for divorce, charging his wife with adultery; to which she filed her answer denying all its allegations as to the offense charged.

The cause was heard by the chancellor. At the conclusion of appellant’s case, the appellee moved the court to dismiss the original bill for want of equity. The court sustained the motion, dismissed the bill, and dissolved the temporary injunction; whereupon appellee dismissed his cross-bill. The chancellor having entered decree in- accordance with such ruling, appellant has perfected this appeal.

Mrs. Silkwood concedes that the court rightly held that she had not proven facts sufficient to justify awarding her a divorce, but contends that the court, having jurisdiction of the subject matter and the parties, should have proceeded to adjust all equities between them, raised by the allegations of her bill; should have determined the rights of the partnership, which she argues were averred and proven, invoking the familiar rule that equity, having obtained jurisdiction of a cause for one purpose, will retain it to do complete justice between the litigants. .

As bearing upon this contention we find the Supreme Court, in discussing the powers of equity courts in divorce cases, has stated the following rule: “It is well settled that in this country the jurisdiction of courts of equity to hear and determine divorce cases is conferred only by statute. While courts of equity may exercise their powers as such within the limits of the jurisdiction conferred by the statute, such jurisdiction depends upon the grant of the statute and not upon general equity powers.” Smith v. Johnson, 321 Ill. 134, 140.

Section 6 of the Divorce Act, Cahill’s St. ch. 40, ¶ 7, provides: “The process, practice and proceedings under this Act shall be the same as in other cases in chancery, except as herein otherwise provided, and except that the answer of the defendant need not be on oath.”

Section 17 of the same act, Cahill’s St. ch. 40, ¶ 18, reads: “Whenever a divorce is granted, if it shall appear to the court that either party holds the title to property equitably belonging to the other, the court may compel conveyance thereof to be made to the party entitled to the same, upon such terms as it shall deem equitable. ’ ’

The action of divorce being governed by legislative enactment, courts have only such authority to adjudicate in such cases as the statute confers. Said section 7 states the proceedings shall be the same as in other chancery cases, except as the Act shall otherwise provide; and section 18, giving power to courts, in divorce cases, to adjust the property interests of the parties, “whenever a divorce is granted” restricts the right of the chancellor to decree a division or settlement of property, to those suits where one of the parties has been adjudged entitled to a divorce.

To the same effect is the general rule as given in 19 Corpus Juris, page 332, sec. 772: “Where a divorce is refused, the court is not authorized to decree a distribution of the property of the parties, unless such a course is expressly authorized by statute, which is the case in some states.”

It being conceded that the chancellor correctly denied the appellant a divorce, it follows that his power to further adjudicate in the cause concerning the property which was in appellee’s possession, and a portion of which appellant claimed belonged to her, was at an end, and his only authority was to dismiss her bill for want of equity and to dissolve the temporary injunction.

The decree properly dismissed the bill for want of equity in so far as it prayed for a divorce, but the court was without jurisdiction of the accounting feature of the bill, and the decree is modified so as to permit appellant to institute and maintain proceedings for the settlement of any partnership that may have existed between the parties. Bach of the parties will pay one-half of the costs in this court.

Affirmed m part; reversed in part.


author: Mr. Justice McSurely

text:
    Lemuel A. Edwards, Appellee, v. William Hale Thompson et al., Appellants.
    Gen. No. 35,227.

      Opinion filed October 6, 1931.
    Francis X. Busch, Corporation Counsel, for appellants ; William V. Daly and Boy S. Gaskill, Assistant Corporation Counsel, of counsel.
    John A. Cooke and Frank F. Trunk, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

The petitioner sought to procure hy mandamus ■ an order directed to the superintendent of police commanding him to grant a permit to petitioner to exhibit publicly a motion picture entitled “Sex Madness” in the City of Chicago. By city ordinance the superintendent of police may permit pictures to be shown but must refuse such permission if the picture is immoral or otherwise objectionable. The mandamus case was tried before the court and jury and a verdict was rendered finding the issues for the petitioner. From the judgment entered upon the verdict respondents appeal.

The issues presented by the pleadings were: (1) Whether the picture was immoral; and (2) Whether the refusal of the superintendent of police to issue a permit was arbitrary, capricious and unreasonable. The evidence presented to the jury consisted of the picture shown upon a screen and the testimony of the petitioner and of the chairman of the moving picture censor board. There is nothing in this testimony of any controlling importance. The picture has been viewed by this court upon the screen, so that both the . judgment of the lower court and of this court must rest upon the impression made by the picture itself.

A mandamus proceeding is an action at law, and the parties have the right to have the issues of fact tried by a jury. People v. Czaszewicz, 295 Ill. 11. The writ of mandamus is never granted when the right to the writ is doubtful. People v. Rose, 225 Ill. 496. Where a public officer is vested with discretion in the performance of an official action, mandamus will not ordinarily issue to compel him to act. People ex rel. City of Chicago v. Board of Review, 326 Ill. 124. The commissioner of police and the mayor are vested with discretion in the matter of issuing permits for moving pictures and the writ of mandamus will not issue to control such discretion, unless it is exercised corruptly or arbitrarily or capriciously. People v. Schuettler, 209 Ill. App. 588; People ex rel. Gary v. Thompson, 253 Ill. App. 621.

An abbreviated description of the instant picture is that it purports to show the evils of so-called companionate marriages. To support this thesis, it portrays scenes in a gambling house and in a free and easy night club and two attempts at rape, the second of which is an attack by a father upon his daughter. The relevancy of these episodes to the theme of the picture is not obvious.

In a case of this sort neither the judge nor the jury can set up its judgment as to the character of the picture over that of the superintendent of police and the board of,censors. Even though the court or the jury might be of the opinion that, acting as a board of censors, it would issue a permit, that is not the ultimate issue to be decided by them. The ultimate issue is whether the action of the superintendent or the board of censors in refusing to issue a permit was arbitrary or capricious. We are aware that frequently in cases of this sort the trial court has sat as if it were a board of censors and determined the matter solely upon its own opinion as to whether the picture was immoral. This is a misconception of the function of the court in such a proceeding. As said in People v. Schuettler, 209 Ill. App. 588: “The law does not contemplate a transfer of the censor’s function to a court and jury, or that they shall sit in judgment on the exercise of his (the commissioner’s) power unless it is arbitrarily or capriciously exercised. His duties are quasi judicial in their nature, requiring the exercise of a sound discretion, with which courts will not generally interfere except in a case of abuse.”

Doubtless in arriving at a judgment on the action of the municipal officers an opinion will be formed as to the character of the picture itself, but this opinion does not necessarily control the ultimate conclusion. The opinion on the picture is merely a factor to be considered in arriving at a judgment upon the action of the officers, namely, whether such action was arbitrary or capricious.

It is error in mandamus proceedings, like this, to submit the case to a jury without any instructions by the court defining the issues to be determined or as to the applicable law. No instructions were given in the instant case.

People differ widely upon the subject of what is immoral, varying from the overly prudish to those whom Mr. Justice Cartwright in Block v. City of Chicago, 239 Ill. 251, characterized as ‘ ‘ shameless and unclean, to whom nothing is defilement and from whose point of view no picture would be considered immoral or obscene.” Considering the picture before us, we have no hesitation in saying that, at least, there would be such a difference of opinion as to its character that it must be held, as a matter of law, that the municipal officers in refusing a permit did not abuse the discretion lodged in them. The motion of respondents at the close of all the evidence to instruct against the petitioner properly raised the point and the motion should have been allowed.

For the reasons indicated the judgment will be reversed.

Reversed.

O’Cohhor, P. J., and Matchett, J., concur.