text:
    Albert W. Godfrey, Appellee, v. Lazetta Godfrey, Appellant.
    Opinion filed March 6, 1936.
    E. W. Eggmann, of East St. Louis, and William T. Keil, of St. Louis, for appellant.
    Martha L. Connole, of East St. Louis, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

Appellee filed his complaint for divorce against appellant in the city court of East St. Louis. The complaint was thereafter amended to charge that the parties were, married on June 21, 1906; that four children were horn of the marriage, and that he had conducted himself toward his wife as a kind and affectionate husband, while she on the contrary, some years prior to the institution of the suit, commenced a course of inhuman treatment toward him consisting of criticism, fault finding, nagging and verbally abusing him; that when he came in late at night she scolded and upbraided him so loudly that it prevented the children from sleeping; that on June 10, 1920, she struck him in the presence of one of their children; that her conduct made his condition intolerable, and that as a consequence, on January 15, 1934, he was obliged to cease sleeping with her. That on April 20, 1935, upon the advice of counsel, he left the home and thereafter lived with his daughter, and that because of such conditions she forced him to leave her for a space of time upwards of one year; wherefore she was guilty of desertion.

Appellant filed her answer thereto, denying all of the misconduct charged in the amended complaint; averred that she had in all respects fully discharged her wifely duties, and that appellee left her against her urgent solicitation to live together and maintain the family relations for the benefit of themselves and their children.

. Appellee also filed her cross complaint for separate maintenance, which the chancellor, upon hearing, dismissed for want of equity. A decree of divorce was entered finding appellant guilty of desertion as charged in the complaint as amended, from which this appeal has been perfected.

There was a considerable volume of testimony taken, which, while in some particulars is conflicting, taken as an entirety establishes the truth of appellee’s charges.

The contention is that the amended complaint did not charge desertion within the meaning of the lilinois Divorce Act, Ill. State Bar Stats. 1935, ch. 40, and that the court could not properly decree appellant guilty thereof, even though all its allegations were proven.

A spouse who by misconduct brings the cohabitation to an end is guilty of a constructive desertion, even though the parties continue to reside in the same domicile. Albee v. Albee, 141 Ill. 550; Johnson v. Johnson, 125 Ill. 510; 19 Corpus Juris, p. 61, secs. 116, 117.

In order to charge such offending party with desertion, after the lapse of the statutory period of time, it is requisite that his or her misconduct be such as would, in itself, constitute a ground for divorce in favor of the innocent spouse. Carter v. Carter, 62 Ill. 439; Fritz v. Fritz, 138 Ill. 436, 442; Frank v. Frank, 178 Ill. App. 557; Van Dyke v. Van Dyke, 135 Pa. St. 459,19 Atl. 1061; Calichio v. Calichio, 85 N. J. Eq. 213, 96 Atl. 658; Summers v. Summers, 179 Ind. 8,100 N. E. 71; Lynch v. Lynch, 33 Md. 328.

It remains to be determined whether the conduct of appellant was such that it, of itself, would have warranted a divorce in favor of appellee, to justify his separation from his wife, and place her in default as guilty of a constructive desertion.

In Abbott v. Abbott, 192 Ill. 439, the rule is declared to be that the duty of parents to their children and to society demands that they shall only be divorced for statutory reasons.

The court held, in Johnson v. Johnson, supra, at page 519: “The husband and wife must mutually bear • with each other’s tempers and dispositions. Mere ebullitions of temper, trivial delinquencies of conduct, and the like, cannot be made ground for disrupting the family, nor a pretext for a course of conduct which necessarily produces that result.”

But one act of physical cruelty was charged and proven. This could not, under our statute, give rise to a ground for divorce for extreme and repeated cruelty. Fritz v. Fritz, supra; Fizette v. Fizette, 146 Ill. 328. Appellant’s conduct, which is complained of, consisted in arguing, harsh criticism, nagging and angry talk when appellee would return home at 3 o’clock or later in the morning, as he himself testified he frequently did, and when asked by appellant where he had been, would answer “just jollification around,” or perhaps reply evasively or not at all.

Appellee argues that his wife’s conduct was a mental cruelty which rendered his life unhappy and unbearable. Henderson v. Henderson, 88 Ill. 248, held that cruelty, to warrant a divorce under our statute, “must be bodily harm in contradistinction to mere harsh or even opprobrious language or mere mental suffering.” And to the same effect are Fizette v. Fizette, supra; Embree v. Embree, 53 Ill. 394; Shorediche v..Shorediche, 115 Ill. 102; Trenchard v. Tren chard, 245 Ill. 313.

In Coursey v. Coursey, 60 Ill. 186, it is stated: “Courts will never interfere and dissolve the marriage relation merely for indulgence in passion, for abusive language and threats of violence, where the safety of the person is not in peril, or the words are not likely to result in acts of serious injury.”

It is thus seen that appellee, to justify his separation from appellant, and give rise to a ground of divorce against her for desertion on her part, must have been subjected to conduct by her which, in and of itself, would have been a cause for divorce. All that is charged and proven against her is one act of physical violence; and demeanor of manner, accompanied by language, criticism and harangues which, while not to be commended, do not amount to extreme and repeated cruelty within the statute, even though causing mental anguish and suffering. No other reason for his separation is claimed nor perceived, and this, as we have seen, was not sufficient to constitute that ground for divorce which he was required to aver and prove in order to make her guilty of desertion, in forcing him to live apart from her.

For which reasons we are of opinion that the decree was not warranted, and it will accordingly be reversed.

Decree reversed.


source: Caselaw Access Project

author: Mr. Presiding Justice Edwards

license: Public Domain

text:
    Stix, Baer & Fuller Company et al., Appellees, v. Woesthaus Motor Company, Inc., Appellant.

      Opinion filed March 6, 1936.
    Wheeler, Oehmke & Dunham, of East St. Louis, and A. A. Alexander, of St. Louis, for appellant.
    McGlynn & McGlynn and R. E. Costello, all of East St. Louis, for appellees.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

Appellees, Stix, Baer & Fuller Company, New Amsterdam Casualty Company, and Robert Sandy, administrator of the estate of* Edward Sandy, deceased, sued for and recovered a verdict and judgment for $10,000 against the Woesthaus Motor Company, appellant.

The complaint alleges that Stix, Baer & Fuller Company, a Missouri corporation, was engaged in selling and transporting merchandise;' that Edward Sandy, now deceased, was in their employ as a wagon boy on one of their trucks; that both said appellee and said deceased were under and subject to the provisions of the Missouri Compensation Law; that the appellee, New Amsterdam Casualty Company, had underwritten the liability of Stix, Baer & Fuller Company for injuries to its employees tinder said Compensation Act. It further charges that deceased, while in the employ of Stix, Baer & Fuller Company, was killed by the negligence of a driver of the appellant in colliding the car, which he was driving, with the car in which deceased was riding; also, that Stix, Baer & Fuller Company and New Amsterdam Casualty Company entered into a settlement with Robert Sandy and Mary Sandy, parents of said Edward Sandy, for compensation in the sum of $2,707.24 on account of his death as aforesaid, and that such agreement was approved by the Workmen’s Compensation Commission of the State of Missouri, whereby they are subrogated to the rights of Robert Sandy, administrator of the estate of decedent, to the amount of their liability on account of said award; and that deceased left him surviving his said parents and three sisters, the parents being dependent upon him for support.

Appellant answered, generally denying all matters of agency, negligence or liability. It also filed a supplemental answer averring that the Stix, Baer & Fuller Company and its insurer, the New Amsterdam Casualty Company, were subrogated to whatever cause of action existed against appellant in the premises, and if any cause of action existed, it was in said companies, and not in the said administrator, and that they were limited in right of recovery to the amount so paid as compensation.

Appellees moved to strike the supplemental answer. The motion was sustained, and the ruling is assigned as error.

Section 3 of the Missouri Compensation Law provides : ‘ ‘ The rights and remedies herein granted to an employee, shall exclude all other rights and remedies of such employe, his wife, her husband, parents, personal representatives, dependents, heirs or next of kin, at common law or otherwise, on account of such accidental injury or death.”

Section 11 of the act provides: “Where a third person is liable to the employe or to the dependents for the injury or death, the employer shall be subrogated to the right of the employe or to the dependents against such third person, and the recovery by such employer shall not be limited to the amount payable as compensation to such employe or dependents, but such employer may recover any amount which such employe or Ms dependents would have been entitled to recover. ’ ’

Such statutory sections, being those of a foreign State, can only be recognized by the courts of Illinois upon the principle of comity, and the law of the forum determines the time, mode and extent of the remedy. Mineral Point R. Co. v. Barron, 83 Ill. 365; Sherman v. Gassett, 9 Ill. 521; Wooden v. Western N. Y. & P. R. Co., 126 N. Y. 10, 26 N. E. 1050.

While the Missouri .statute quoted conferred upon the employer who had i aade settlement for compensation the exclusive right of action, this could only apply to suits brought within that State, and has no control over such causes instituted in the courts of another commonwealth. 71 Corpus Juris, p. 1609, sec. 1652.

The only decision we have been able to find which seems to cover the point is the case of Saloshin v. Houle, 85 N. H. 126, 155 Atl. 47, where, in a situation very like the instant case, a death occurring in New Hampshire caused by an accident therein, to a resident of New York who at the time was subject to the compensation laws of the latter State, and whose widow made settlement in New York with the employer, and where the statute provided that such settlement should amount to an assignment of the cause of action to the insurance carrier, and where the widow later brought suit in New Hampshire against the third person causing the injury, it was held that notwithstanding such New York statute and the fact that the widow had accepted an award thereunder, she could maintain her further action in New Hampshire against the third person causing the injury. In view of this authority we do not think that the only right of action was in Stix, Baer & Fuller Company, but that the administrator of the deceased was privileged to sue under the Injuries Act of this State, Ill. State Bar Stats. 1935, ch. 70.

Appellant argues that the right of recovery should be limited by the Workmen’s Compensation Act of Illinois, Ill. State Bar Stats. 1935, ch. 48, ¶ 201 et seq. Appellees had no rights under such act, and even though appellant was under and subject to the same, there was no privity between it and the appellees because of such act, and their right of recovery was under and limited to the Injuries Act of this State. We think the court rightly struck the supplemental answer.

Appellant also complains that the court erred in certain rulings on evidence, the principal of which was that Statler, driver of its car, was first called as a witness for appellees, and appellant upon cross-examination had him identify his signature to a written instrument, the contents of which contained statements at variance with his testimony at the trial; that later appellant called Statler as its witness, then offered the document as tending to impeach him. The court rejected the offer, and we think did so correctly. Where a party calls a witness, who has also been called by the opposite side, he cannot impeach the credibility of the witness by proving that he has made statements out of court different from those given by him upon the witness stand. People v. Johnson, 314 Ill. 486.

It is earnestly contended that the weight of the evidence shows that Statler, while an employee of appellant and driving its car at the time of inflicting the fatal injury, was not then acting within the scope of his employment nor engaged in any business for the latter, and hence his actions cannot be charged to it. The complaint averred that Statler, at the time, was acting as the agent of appellant. Having so alleged, appellees had the burden of proving by the preponderance of the evidence that he was in fact, at the time, such agent. Nelson v. Stutz Chicago Factory Branch, 341 Ill. 387.

The law is established in this State that if an agent or servant steps aside from the business of his employer or master for even a. short interval, to accomplish some purpose of his own not connected with the business of his principal, the relation of master and servant or principal and agent, is thereby and for the time suspended, and whatever is done by the agent or servant during such period is not chargeable to the principal or master. Johanson v. Johnston Printing Co., 263 Ill. 236; Lohr v. Barkmann Cartage Co., 335 Ill. 335; Clark v. Wisconsin Central Ry. Co., 261 Ill. 407.

Statler was a salesman for appellant, engaged in selling used cars at their place of business; the evidence being in conflict as to whether he was authorized to take the car in question and go out, as he said, to contact some prospects. It appears that at the time in question he took an Oldsmobile sedan belonging to appellant and left his place of employment, accompanied by one Dan Thompson, a mechanic of appellant, whom he took to a barber shop some distance away. After letting Thompson out at the barber shop, Statler drove around the city, claiming that he was then looking up prospects, which, however, he did not find. He later called for Thompson, then drove to the latter’s residence, conversed with Thompson and wife, and afterwards, by mutual agreement, the three started in the sedan for the saloon of one Schwab for the purpose, as they say, of drinking beer, and while on the way to Schwab’s the accident occurred. ' It-Appeared that the arrangement was to return to Thompson’s home from Schwab’s, though Statler testified that he intended thereafter to go to the stockyards to interview a prospect for the sale of an automobile.

It would serve no useful purpose to discuss the testimony in detail. We are of opinion that there was sufficient to warrant the court in sending the case to the jury and in overruling the motions for a directed verdict.

Upon the question which arose upon the motion for a new trial, as to whether Statler at the time in question was engaged in the business of his employer, or, if he started out as such, had deviated therefrom to engage upon a pleasure expedition of his own, and thereby suspended the agency, if in fact one existed, and whether he had resumed the suspended employment at the time of the collision, it was incumbent upon appellees to establish such facts by the preponderance of the proof.

From a consideration of the evidence we are constrained to hold that appellees failed to prove same by the greater weight of the evidence, and when such is the case the trial court should have awarded a new trial. Belden v. Innis, 84 Ill. 78.

Reversed and remanded.


author: Mr. Justice Murphy

text:
    Robert Willett, Appellee, v. The Baltimore and Ohio Southwestern Railroad Company, Appellant.

      Opinion filed March 6, 1936.
    Kramer, Campbell, Costello & Wiechert and John C. Roberts, all of East St. Louis, for appellant; William A. Eggers, of counsel.
    Beasley & Zulley, of East St. Louis, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

Robert Willett brought suit against The Baltimore and Ohio Southwestern Railroad Company in the city court of East St. Louis to recover damages for personal injuries he sustained in a grade crossing accident at the intersection of defendant’s tracks and a public highway known as Kingshighway in St. Clair county.

The original declaration filed in January, 1932, contains two counts; the first charged general negligence in operating and driving the locomotive and the second, a failure to comply with the statute in ringing a bell and sounding a whistle before reaching the crossing.

In January, 1934, plaintiff amended his pleadings by filing a complaint under the Civil Practice Act. The specific acts of negligence relied upon are set forth in separate paragraphs. The second paragraph charges negligence in the failure of the defendant to ring a bell, sound a whistle or give warning of the approach of the train; the third, failure to have a headlight burning; fourth, neglect to have its locomotive under control so as to be able to stop and avoid the collision, knowing that the crossing is extensively used by the public; fifth, failure to give warning of the approach by having a watchman or mechanical device at the crossing, knowing the view of the public for approaching trains was obstructed; sixth, that the train was going at an unreasonable speed, knowing the crossing was unprotected, and seventh, that the defendant was negligent in maintaining a steep upgrade to the crossing making it impossible for plaintiff to stop his truck until he was upon the main track. Later the complaint was amended charging wilful and wanton negligence. At the conclusion of all the evidence the court directed a verdict as to the latter charge. Defendant’s answer denied each allegation and as to the seventh paragraph, also pleaded the two-year statute of limitations. On a trial by jury, plaintiff was awarded a judgment for $2,999.

On this appeal, defendant contends the court erred in its rulings on defendant’s motion for a directed verdict, in admission of evidence, the giving and refusal of instructions and in overruling its motion for a new trial.

The evidence shows that at the crossing where the accident occurred, the public road extends north and south. It is paved except about 300 feet immediately south of the tracks. This unpaved surface was of dirt, gravel and cinders and had previously been covered with oil. The tracks were double, the north track being used for west-bound trains. They were on a roadbed somewhat higher than the adjoining land to the south and somewhat higher than the paved part of the highway, thus making an upgrade approach to the crossings from the south. The approach was not a uniform incline but varied from four to 14 per, cent. About 5:30 a. m., November 9, 1931, plaintiff, driving a light delivery truck, drove onto the crossing from the south. Defendant’s freight train, an engine and about 50 cars, going west on the north track, collided with the plaintiff’s truck. The track extended in a straight line east and west from the crossing for a mile. The visibility was not good; some of the witnesses described it as being dense fog, others as smoky and hazy.

Plaintiff testified that he had oh previous occasions driven over the crossing in daylight but never when it was dark. He also knew that there were cross-arm warning signs for the crossing. His testimony is that when he was 30 feet south of the track, he stopped,looked and listened, but did not see or hear anything; that he drove onto the crossing; that the train was only 15 to 20 feet away when he first saw it; that no bell rang or whistle sounded and no headlights were burning on the engine and that it was dark. In this he is partly corroborated by one witness but several witnesses testified positively that the whistle sounded, the bell rang and that a headlight was burning.

The negligence that would arise from the breach of defendant’s duty to sound the horn, ring the bell and have a headlight burning was properly pleaded and there being evidence tending to support such charges, the court properly submitted those questions to the jury.

It is our opinion that there is error that requires a reversal of the judgment and remanding of the cause for a new trial. In our discussion, we will consider some points that would not be fatal to the judgment on this appeal but which may arise on another trial.

Defendant moved to strike paragraphs four, five, six and seven of the complaint, objected to the introduction of evidence under said paragraphs and made a motion for a directed verdict as to each paragraph.

In reference to the charge of negligence of not having the train under such control as to be able to stop and avoid' the collision, it has long been the settled law of this State that where a railroad train and a person traveling on the highway with a vehicle are each approaching a crossing at the same time, it is not the duty of the railroad company to have its trains under such control as to be able to stop and avoid a collision, but it is the duty of the traveler on the highway to stop and not to attempt to pass in front of the advancing train. Toledo, W. & W. Ry. Co. v. Jones, 76 Ill. 311; Chicago, B. & Q. R. Co. v. Damerell, 81 Ill. 450; Newell v. Cleveland, C., C. & St. L. Ry. Co., 261 Ill. 505; Williams v. Pennsylvania R. Co., 235 Ill. App. 49. The motion to strike the fourth paragraph on the grounds that it did not state a cause of action should have been sustained and it was error to submit it to the jury.

The fifth paragraph of the complaint charges the defendant to have neglected to have a watchman or mechanical device at the crossing to warn the plaintiff of the approach of the train. Defendant contends that the Illinois Commerce Commission is given sole power to determine the necessity of a watchman or signaling device at the crossing and since it does not appear that the commission has ordered a watchman or warning device for this crossing, it cannot be charged with negligence for failure to provide the same.

We cannot agree with that contention. In Wagner v. Toledo, P. & W. R. R., 352 Ill. 85, page 91, it was said, “A railroad company in the running of its trains is required to exercise ordinary care and prudence to guard against injury to those who may be traveling upon the public highway and crossing its tracks. The fact that the statute may provide one precaution does not relieve the company from adopting such others as public safety or common prudence may dictate. The ringing of a bell and the blowing of a whistle are not alone sufficient to excuse a railroad company from maintaining other means of warning the traveling public when conditions are such as shown in the case at bar. ■ (Chicago, Burlington and Quincy Railroad Co. v. Perkins, 125 Ill. 127; Indianapolis and St. Louis Railroad Co. v. Stables, 62 id. 313; 22 R. C. L. sec. 226; Eaton v. Fitchburg Railroad Co., 129 Mass. 364; Grand Trunk Railroad Co. v. Ives, 144 U. S. 408.) Even in the absence of statutory requirements it may be negligence not to provide a signboard, if the crossing is of unusually dangerous character. (Shaber v. St. Paul, etc., Railroad Co., 28 Minn. 103; Winstanley v. Chicago, etc., Railroad Co., 72 Wis. 375.) ”

In Opp v. Pryor, 294 Ill. 538, the court, in considering a grade crossing accident which occurred in the night, said, “There was therefore no statutory duty to maintain a watchman or gates at the crossing, and neither by custom nor judicial decision has it ever been held that it is the general duty of railroad companies to maintain watchmen or gates at public crossings. There is a common law duty to exercise such care and use such precautions as will enable the traveler on the highway, if he exercises ordinary care, to ascertain in the nighttime the approach of an engine backing cars over a street crossing. There may be special conditions creating special dangers that might require a watchman or gates at a street crossing, as in the case of such crossing in a populous city in constant use by the public, but there was neither allegation nor proof of any such condition at this crossing in a residence neighborhood, so that no cause of action was proved under the third count. ’ ’

Before plaintiff would be entitled to recover on the charge that defendant did not have a watchman or mechanical warning device at the crossing, it was incumbent upon him to plead and prove that the crossing was by reason of some conditions or circumstances more dangerous than the ordinary crossing and that it caused unusual peril to persons crossing it. The allegation that plaintiff knew it was obstructed is not an allegation of fact from which it can be determined whether the obstruction is such as to make it extra hazardous. The allegation the defendant knew it was obstructed did not aid the pleading for the defendant was charged with knowing the condition of the crossing.

The sixth paragraph, charging negligence in the speed of the train is likewise defective for want of sufficient allegation of fact. There is conflict in the evidence as to the speed of the train, varying from 25 to 50 miles per hour. It does not appear that the crossing was within the corporate limits of any city or village or that there was any statutory restriction as to speed. In the absence of statute or ordinance or other regulations imposed by authority of statute, a railroad company has the right to operate its trains at such speed as it may deem best, subject however, that it must be proper and consistent with the safety of travelers who are attempting to pass over the crossing and who are in the exercise of due care for their own safety and with the safety of its passengers and employees. Partlow v. Illinois Cent. R. Co., 150 Ill. 321; Passwaters v. Lake Erie & W. R. Co., 181 Ill. App. 44.

It is defendant’s contention that the cause of action set up in the seventh paragraph, viz., negligence in not maintaining a proper approach to the crossing is barred by the two-year statute of limitations. The accident happened November 9, 1931. The original declaration was filed in January, 1932, and the amended complaint in January, 1934.

Plaintiff contends that this question is controlled by section 46 of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, ¶ 174, and that under this section his amended pleading as set out in the seventh paragraph is permissible. Section 39 of chapter 110 of the. former Practice Act dealt with the same subject matter as is now found in section 46 of the present act. Section 94 of the Civil Practice Act, being the repeal section, expressly repeals said section 39 but the saving clause in said section 94 provides “nothing in this provision for repeal shall impair or affect any action or proceeding commenced before this act shall have taken effect.”

It is clear that under this saving clause and the rule announced in McGirr v. Pritchard, 258 Ill. App. 467; Kenfield-Leach Co. v. Industrial Publications, 320 Ill. 449, the pleading under consideration is to be construed under the provisions of section 39 of the former act.

Section 39 as amended in 1929 provides that any amendment to any pleading should be held to relate back to the date of the filing of the original pleading and that the cause of action or defense set up by the amendment should not be barred, if the original pleading had been filed within the time and “if it shall appear from the original and amended pleading that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence and is substantially the same as set up in the original pleading.” In Day v. Talcott, 361 Ill. 437, it was held that before section 39 had any application, the original pleading must have stated a cause of action.

The original declaration did state a cause of action, the negligence charged being the failure of the defendant to ring the bell and sound the whistle as the train approached the crossing, and. failure to have a headlight burning. The question is, Does the failure to have a proper approach to the crossing grow out of the same transaction or occurrence alleged in the original pleading and is it substantially the same?

As was pointed out in Zister v. Pollack, 262 Ill. App. 170, there was, prior to the enactment of the amendment, many “pitfalls” in pleading plaintiff’s cause of action and that by the amendment of 1929', the legislatnre intended to correct those in so far as it could be done without seriously prejudicing the rights of the defendant. In the use of the words “transaction” or “occurrence,” we believe the legislature intended that they should be given a broader meaning than cause of action and as applied to this case, it was meant to include every act of omission or commission by the defendant to the plaintiff and which affected the rights of the plaintiff as a traveler passing over the crossing and which gave him a cause of action. The charge of negligence in not ringing the bell or sounding the whistle for the crossing and the alleged failure to have and maintain a proper approach to the crossing, each transgressed a right of the plaintiff as a traveler passing over the crossing and are to be considered as rising out of the same transaction or occurrence.

The words “and are substantially the same” are words of limitation. The negligence alleged in the amendment must not only arise out of the same transaction as the action pleaded in the original pleading but must be substantially the same. The negligence charged in the original and amended pleading are substantially the same and require substantially the same defense.

Over the objection of the defendant, the plaintiff was permitted to introduce in evidence an order of the Illinois Commerce Commission directed against the defendant and Pennsylvania Railroad Company. As a finding by the commission it recited that Kings-highway crossed at grade, the double tracks of the defendant, the double tracks and nine switch tracks of the Pennsylvania Railroad Company, that there was a large amount of switching over the switch tracks, many trains on the tracks of each of the railroads, a large amount of travel on the highway and that to separate the grade, it would remove the hazardous conditions, aid in the moving of traffic on the highway and various other public benefits would flow from it and ordered a separation of the grade as to both railroads.

It was prejudicial error to admit the order in evidence. It brought before the jury the finding of the commission in reference to the crossing which was based upon acts or conditions created in part at least by the Pennsylvania Railroad Company and referred to its crossing. It also referred to many matters of public concern in the direction and regulation of traffic that were entirely foreign to the charges of' negligence that were properly pleaded.

Various objections have been urged by the defendant as to the giving and refusal of instructions. In the main the points of law upon which a jury should be instructed in a case of this character were given and while they might have been fuller upon some of the points, w'e do not find that defendant’s rights were seriously prejudiced in that regard.

Under the evidence, the question of due care was properly submitted to the jury.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Abe Chesnut, Appellant, v. Chicago, Burlington and Quincy Railroad Company, Appellee.

      Opinion filed March 6, 1936.
    J. G. Burnside, of Vandalia, and L. C. Combe, of Greenville, for appellant.
    C. E. Davidson, of Greenville, J. C. James and C. W. Krohl, Both of Chicago, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

Abe Chesnut, plaintiff, brought an action against the Chicago, Burlington and Quincy R. R. Co., the defendant, to recover damages for personal injuries claimed to have been sustained by him as a result of a sunstroke while he was employed by the defendant as a sectionhand in repair of the defendant’s railroad tracks.

Plaintiff’s second amended complaint was based upon a liability under the Federal Employer’s Liability Act and as negligence, the first count alleges that it was the duty of the defendant to use reasonable care not to injure him and to protect him from injury; that on August 7, 1934, in violation of that duty the defendant wrongfully and negligently caused the plaintiff to work in such extreme heat and for such a great length of time that he suffered injury. The second count is the same as the first except that it contains the additional allegation that while plaintiff was suffering pain from the extreme heat he informed defendant of such fact but that defendant ignored plaintiff’s complaint and ordered him to work past the regular quitting time and while so engaged he suffered injury. The third count is that the heat of the day was extraordinary and excessive; that in the place where he was working he was more exposed to danger from the heat of the sun than people generally were subjected to by the prevailing summer heat; that he informed defendant he was hot and suffering pain and that defendant ordered and directed him to continue work until after the regular time of quitting the day’s work and that while thus engaged, he suffered injury.

The fourth and fifth counts are the same as to the charge of negligence as the third count.

The sixth count alleges that the assistant roadmaster and the section foreman were representatives, of the defendant and were plaintiff’s immediate superiors and that while working under their direction in the intense heat of the day, they negligently failed to furnish plaintiff sufficient help to do the work. The court sustained defendant’s motion to strike the complaint on the grounds that none of the counts stated a cause of action and plaintiff appealed to this court.

In actions brought in the State courts under the provisions of the Federal Employer’s Liability Act, the decisions of the Supreme Court control. Brant v. Chicago & A. R. Co., 294 Ill. 606; Central Vermont Ry. Co. v. White, 238 U. S. 507; Huff v. Illinois Cent. R. Co., 362 Ill. 95.

“Any action which seeks to impose liability upon a common carrier under the provisions of the Federal Employers’ Liability Act must be founded upon negligence. (Barnes’ Fed. Code, sec. 8069.) The company is not a guarantor of the safety of the place of work or of the machinery and appliances used. The extent of its duty is to see that ordinary care and prudence are exercised, to the end that the place in which the work is to be performed and the tools and appliances of the work may be safe for the workmen. (Roberts’ Injuries to Interstate Employees, sec. 12; Seaboard Air Line Railway Co. v. Horton, 233 U. S. 492.) . . . In occupations involving no extraordinary hazard, in which an employee engages voluntarily, without compulsion or emergency he is conclusively presumed to have assumed such risks as are ordinarily incidentál thereto, not due to the employer’s negligence or violation of law. Chicago, Rock Island and Pacific Railway Co. v. Ward, 252 U. S. 18; Chicago and Northwestern Railway Co. v. Bauer, 241 id. 470.” Huff v. Illinois Cent. R. Co., supra. There is no allegation in any of the counts that charges the defendant with having furnished plaintiff defective tools or appliances with which to work. Neither is there an allegation in any of the counts that the place where plaintiff was to perform the work was not suitable and reasonably safe except as to such hazard as might arise from the extreme heat of the weather.

When plaintiff accepted employment from defendant as a section laborer, he knew that in the performance of his labors, he wonld be outdoors. Assuming as we must, that he was a person of ordinary intelligence, he well knew and understood that in this climate there would be times when the heat of the sun would be intense. He knew his own physical condition and ability to endure such heat. He might not have been able to definitely determine the amount of heat he could stand or the work he could perform under such weather conditions, yet as to that risk, he knew better than anyone else how much the heat affected him and the extent of his endurance and the point beyond which he ought not for his own safety continue at Avork. Louisville & N. R. Co. v. Williams, 165 Ky. 386, 116 S. W. 1186, L. R. A. 1915 E 613; Stockwell v. Chicago & N. W. Ry. Co., 106 Iowa 63, 75 N. W. 665.

Plaintiff contends that the intense heat of the sun as described in the third, fourth and fifth counts was so excessive that the plaintiff should not as a matter of law be held to have assumed the risk of suffering a sunstroke while working under such conditions.

Even if the condition created by the intense heat of the sun on this particular day did not frequently occur and was not reasonably to be anticipated by one engaged in such labor, this would not constitute a risk for which the defendant Avould be liable, if the conditions of the temperature Avere so obvious that an ordinarily prudent person under the same circumstances would have observed and appreciated the fact that there was danger of heat prostration if he continued in such employment. Seaboard Air Line Ry. v. Horton, 233 U. S. 492. We are of the opinion that plaintiff assumed the risk of heat prostration caused by the excessive and extraordinary heat described in the third, fourth and fifth counts.

The allegation that the defendant directed the plaintiff to work in the sun and to continue after the usual quitting hours does not contain an element of negligence. Huff v. Illinois Cent. R. Co., supra. It is not alleged that plaintiff was laboring under compulsion or in any emergency or was influenced by any promise of a better or cooler place to work.

The sixth count is based upon negligence in failure to furnish sufficient help. Since this case was submitted on brief and argument, the Supreme Court in Huff v. Illinois Cent. R. Co., supra, held that the failure to furnish sufficient help is a risk assumed by the employee. The facts in that case are so nearly analogous to the facts pleaded in the sixth count that the principles announced there are controlling here.

The judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    Ida Bell White, Appellee, v. City of Belleville, Appellant.

      Opinion filed March 6, 1936.
    L. N. Nick Perrin, Jr., of Belleville, for appellant; Louis Klingel, of Belleville, of counsel.
    Beasley & Zulley, of East St. Louis, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

The appellee, Ida Bell White, brought her action against the Illinois Power and Light Corporation, the Southwestern Bell Telephone Company and the City of Belleville, to recover damages for personal injuries alleged to have been sustained when she fell on a sidewalk in said city. At the conclusion of appellee’s evidence, the court sustained a. motion for a directed verdict as to the Illinois Power and Light Corporation and at the conclusion of all the evidence, a similar motion was sustained as to the Southwestern Bell Telephone Company. The jury returned a verdict in favor of appellee for $6,400. The court required a remittitur of $1,400 and after overruling the city’s motions for judgment notwithstanding the verdict, new trial and in arrest of judgment, judgment was entered against the city for $5,000 and this appeal followed.

Appellant urges three grounds for reversal: (1) The injury occurred November 19,1933. The original complaint was filed June 14, 1934, and the amended complaint February 1, 1935. It is appellant’s contention that the original complaint did not state a cause of action and that therefore the amended complaint was filed more than one year after the cause of action accrued and is therefore barred. (2) That the notice given pursuant to the requirements of section 7, chapter 70, Illinois State Bar Statutes was insufficient as to the description of the location of the defective condition of the sidewalk. (3) That the court erred in not sustaining appellant’s motion for a directed verdict.

The original complaint contained allegations to the effect that appellant was a municipal corporation and had possession and control of the public streets, alleys and sidewalks in said city and kept them in repair for the use and travel of the public; that prior to the accident, the defendant utility companies, in the management of their property, made an opening in the sidewalk near the intersection of West A street and North Illinois street in said city and so carelessly and negligently performed the same that they caused a broken, uneven, dangerous and unsafe condition to be and remain in said sidewalk. The fourth paragraph of the first count was that the city authorized or with its knowledge permitted the construction or making of said unsafe condition “and the same remained for such a length of time that the same would have been removed or repaired by said defendants in exercise of ordinary care prior to the occasion of the injury.” The amended complaint filed February 1, 1935, which was filed after the directed verdicts and judgments had been entered dismissing the utility companies from the suit, specifically charges that the city negligently and carelessly permitted the said sidewalk to be and remain out of repair, worn, broken, cracked and unsafe to travel thereon, all of which facts the defendant knew or in the exercise of ordinary care should have known in sufficient time to have repaired the same before the accident.

If the original declaration states a cause of action, however defectively stated, provided it is sufficient to sustain a judgment, an amendment is permissible amplifying the statement of the same cause of action, and will relate back to the filing of the original declaration so as not to be subject to the intermediate running of the statute of limitations. Walters v. City of Ottawa, 240 Ill. 259, 264.

The allegation in the original complaint which refers to the acts of appellant is in substance that the defective condition of the sidewalk was created by the utility companies with the knowledge and consent of the city and that after notice or lapse of time charging it with notice, it failed to exercise due care in repairing the defective condition. There is direct allegation that the city is a municipal corporation in possession and control of the public streets and sidewalks within the city. Under such averments of fact the law would impose the duty upon the city to maintain the sidewalks in safe condition for the public to travel upon and that duty could not be evaded or delegated to the utility companies. It is alleged that the opening was made by the utility companies with the permission and knowledge of the city and was not repaired or replaced in a safe condition by the utility companies and that the city had knowledge, direct or implied, of such defective conditions, then, under such state of facts, the city would be liable for damages arising out of its neglect to make repairs. City of Springfield v. Scheevers, 21 Ill. App. 203.

Appellant further contends that the original complaint failed to state a cause of action for the reason that it did not contain an allegation that it was the duty of the city to repair the streets. It is not proper pleading to allege in a complaint that it is the duty of the defendant to do certain things but facts should be pleaded from which the law will raise the duty. Ayers v. City of Chicago, 111 Ill. 406; Chicago & A. R. Co. v. Clausen, 173 Ill. 100.

We are of the opinion the first count of the original complaint stated a cause of action and that the amended complaint declared upon the same cause of action and was not barred by limitation.

Appellant contends that the notice given by appellee to appellant that she intended to institute suit did not comply with the provision of the statute as to giving the location of the accident. The statutory requirements in reference to location of the accident is that it shall give the place of location where such accident occurred. The notice that was given contained the statement that the accident occurred “at the southwest corner of the intersection of West A Street and Illinois Street, in the said City of Belleville.” The notice that was given in McComb v. City of Chicago, 263 Ill. 510, located the accident as having occurred “at or near the corner of Thirty-ninth Street and Campbell Avenue.” The court said, “It does not specifically state which corner, and appellant insists the notice is too uncertain and indefinite as to the place of the accident to be a substantial compliance with the statute. It must be admitted that in this respect the notice was crudely and carelessly prepared, but if, considering the whole notice together, it gives sufficient information to the city authorities to enable them, by the exercise of reasonable intelligence and diligence, to locate the place of the injury and ascertain the conditions alleged to have existed which caused it, it is sufficient, according to the weight of authorities, to serve the purpose for which it was' required by the statute to be given.” The notice given located the place of the accident with sufficient certainty.

Appellant further contends that the court erred in not allowing its motion for a directed verdict and urges in support thereof that the defect in the sidewalk where appellee fell was so slight that as a matter of law there "was no duty resting upon the city to repair it and that therefore no negligence was proven. That the place in the sidewalk -where appellee stepped and fell was lower than the general level of the sidewalk is not denied and it may also be considered as duly proven that the walk had been in this condition a sufficient length of time to charge appellant with notice of it.

There is little conflict in the evidence as to shape, area and depth of the depression in the walk, where appellee says she stepped causing her to fall, but for the consideration of this assignment of error, we are required' to take the evidence most favorable to appellee and adopt it as true and grant all reasonable inferences that may arise therefrom. Appellee’s witness, J. E. Weinel, civil engineer, who measured the defective walk as to area and depth of depression and made a drawing of the same which is in evidence is most favorable to appellee. He described the depression as being 16 by 19 inches the long way extending north and south, that the west side was flush with the telephone pole that was setting in the sidewalk back of the curb, that the north end of it extended to the curb, that the sidewalk all around this area is granitoid and practically level. The depressed part was lower than the general level of the walk surrounding it.

The described area next to the pole, which would be on the west side, was three and one-fourth inches lower than the general level outside the area, that at the curb or north end it was two and one-half inches below the level and at the southeast corner it was approximately flush with the adjoining walk. These measurements would describe a depression that would be approximately zero at the southeast corner dropping to three and one-fourth inches at the west side and to two and one-half inches at the north end. It appears that this described area was detached from the remainder of the walk leaving a crevice of one-fourth inch in width. It is evident that some years before (at least 10) an opening had been made in the walk, next to the pole,, and then refilled. This refill did not adhere to the edges of the walk and settled causing the depression described. It had been in this condition for several years.

Appellee testified that about 8 p. m., November 19, she was going north on the west side of Illinois street intending to cross A street and as she approached A street, she was watching the traffic at the intersection when she placed her left foot into this depression about seven or eight inches from the curb on the north end and near the east edge of the area; that she did not slip; that the slanting condition and depth caused her to fall forward onto the pavement on A street, injuring her left knee for which she claims damages. There is no evidence that the walk was wet or slippery. The evidence of appellant is that this corner was well lighted while appellee’s evidence is to the contrary. Appellee’s failure to see the defect was not because it was not sufficiently lighted but because she testified that she was watching the traffic and did not look at the sidewalk.

It is the settled law of this State that a city is not an insurer against accidents; that it is not required to foresee and provide against every possible danger or accident that may occur but is only required to keep its streets and sidewalks in a reasonably safe condition for the accommodation of the public who use them. Village of Mansfield v. Moore, 124 Ill. 133; City of Gibson v. Murray, 216 Ill. 589; City of Chicago v. Bixby, 84 Ill. 82. The mere happening of the accident raises no presumption that it "was caused by negligence. Huff v. Illinois Cent. R. Co., 362 Ill. 95; Spring Valley Coal Co. v. Buzis, 213 Ill. 341; City of Chicago v. Bixby, supra.

The courts of this State in the application of the foregoing principles have held that depressions of certain depths and.areas were so slight and inconsequential that the law did not impose a duty upon the city to repair such a minor defect.

In City of Chicago v. Bixby, supra, the action was to recover damages for an injury sustained by reason of faulty construction of a sidewalk. A part of the walk was at grade and a part 10 or 12 inches below the grade level a step was constructed at the intersection. Plaintiff was descending from the upper to the lower walk and fell. It was held there was no liability.

In Powers v. City of East St. Louis, 161 Ill. App. 163, a case of alleged negligence growing out of faulty construction, it was held that a difference of three inches in the level of the walk created no liability for injury sustained; in City of Chicago v. Norton, 116 Ill. App. 570, a depression in the sidewalk of a depth of two and one-half to three inches exempted the city from liability.

In some other jurisdictions the same rule prevails; in Beltz v. Yonkers, 148 N. Y. 67, 42 N. E. 401, the depression was two and one-half inches deep; in Terry v. Perry, 199 N. Y. 79, 92 N. E. 91, the depression was not more than three inches in depth; Jackson v. Lansing, 121 Mich. 279, 80 N. W. 8, one and one-half to three inches in depth; Hopson v. Detroit, 235 Mich. 248, 209 N. W. 161, and other cases cited in annotation, 20 Ann. Cas. 798.

There are cases in other jurisdictions holding that it was for the jury to say whether the defect was dangerous and that injury to. per sons passing over it might be reasonably anticipated but an examination of those cases discloses that the location and the amount of travel and surrounding conditions had an important bearing on the question.

The court in Puck v. City of Chicago, 281 Ill. App. 6, recognizes the general rule in this State to be as announced in the Bixby, Norton and Powers cases but pointed out that such a rule might not be applicable for a depression in the sidewalk in a crowded condk tion of travel.

There is evidence in this case to the effect that this depression was in a business section of the city, within a block of the public square but there is no evidence as to travel except what might be inferred from the fact that it was in a businéss street near the public square.

We do not regard the depression in the walk in this case to be of such a character as to impose a duty upon appellant to repair and unless there was a duty resting upon appellant to correct the depression and bring it to the same level as the remainder of the walk there ivas no negligence arising out of its failure to repair.

As pointed out in many of the cases, such conditions are to be found on the sidewalks of practically every city and village and to impose a duty to repair such slight defects would be to make the city an insurer against accidents. In Beltz v. Yonkers, supra, it was said, “The law does not prescribe a measure of duty so impossible of fulfillment or a rule of liability so unjust and severe.”

By reason of appellee’s failure to prove negligence the court erred in not directing a verdict for appellant.

Appellant contends that appellee was guilty of contributory negligence. If appellee had proven appellant negligent, as charged, then, under the evidence, the contributory negligence would have been a question for the jury.

For the reasons assigned the judgment of the lower court is reversed.

Judgment reversed.


text:
    Ora C. Baiar, Administrator of the Estate of John A. Baiar, Deceased, Appellee, v. William L. O’Connell, Appellant.

      Opinion filed March 6, 1936.
    William H. Warder, of Marion, for appellant.
    D. L. Duty and L. A. Colp, both of Marion, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

On April 11, 1930, the State auditor closed the Citizens State Bank of Johnston City, and thereafter instituted a liquidation suit and had a receiver appointed.

April 4, prior to the closing of said bank, John A. Baiar was the holder and owner of two certificates of deposit issued by said bank in the sum of $10,875 and $700 respectively. John A. Baiar died in April, 1931, and letters of administration were issued to appellee. As such administrator, he filed an intervening petition in the liquidation suit and sought to have the amounts of the two certificates of deposit decreed to be a preference. The lower court granted the preference and the present receiver appealed from that order.

The only evidence tending to shed any light upon the transaction between John A. Baiar and the bank, relative to the two certificates, is found in the testimony of L. D. Hobbs, the cashier, who testified for appellee. Hobbs testified that prior to April 4, 1930, John A. Baiar had been a depositor in the Citizens State Bank and that on said date Baiar came to the bank with the two certificates; that he gave them to Hobbs and thereupon Hobbs executed and delivered to Baiar a receipt as follows:

J. City 4-4-30
RCD J. H. Baiar
Cert for $10,875.00
700.00
$11,575.00
To Purchase Bonds
C. S. Bank
L. D. Hobbs,
Cashier

Hobbs said the certificates were given to him for the purchase of liberty bonds. The certificates were not introduced in evidence and their terms are not shown except as to the amount. Hobbs testified he did not remember as to'whether Baiar had indorsed the certificates and there is no other evidence upon that subject. There is no evidence giving the substance of any statements made by Baiar in reference to his wishes as to the purchase of bonds nor the substance of any conversations between Hobbs and him relative to when the bonds should be purchased, the place or terms of purchase, or price to be paid. The record is silent as to any entries made by the bank in reference to the account. Hobbs did testify that the bank was closed April'11, and that'the bonds were not purchased and as a reason he said, “We really closed before we had time to get them. Another reason, we were trying to conserve cash in order to keep the bank open.” After the bank was closed, Hobbs, at the suggestion of the examiner in charge, delivered the certificates to Ora C. Baiar for delivery to John A. Baiar.

The material question is whether or not the transaction as testified to by Hobbs created a trust of the fund evidenced by the two certificates of deposit. The Supreme Court has repeatedly held that deposits are of two kinds, general and special. G-eneral deposits are those where the bank merely becomes the debtor of the depositor while a special deposit is one where a deposit has been made by special agreement or under circumstances sufficient to create a trust. People v. Bates, 351 Ill. 439; People v. Farmers State & Savings Bank, 338 Ill. 134; Woodhouse v. Crandall, 197 Ill. 104. To make a deposit a special one the bank must be' made an agent or a trustee rather than a debtor and its agency or trusteeship cannot be created out of a mere external relationship of debtor and creditor unless the deposit is wrongful or the law forbids the bank becoming a debtor. People v. Farmers State & Savings Bank, supra; People v. People’s State Bank of Maywood, 354 Ill. 519; People v. Stony Island State Sav. Bank, 358 Ill. 118.

Prior to the transaction on April 4 between Baiar and Hobbs, Baiar was the creditor of the bank for the amounts of the two certificates and the certificates were the promise of the bank as a debtor to pay those amounts upon proper presentation. Under the rules announced in the foregoing cases the title to the money then belonged to the bank and if the bank was closed during the existence of that relationship, the money evidenced by the certificates would be treated as a part of the general assets of the bank and Baiar would pro rate in the assets as a common creditor. Appellee, by his petition, claims that the result of the trapsactioii between Hobbs and Baiar was a termination of the 'original relationship of debtor and creditor and the establishment of a new status, that of trustee and cestui que trust. The burden of proving that fact rested upon appellee and it is our conclusion that he has not made such proof. The mere delivery of the certificates to the cashier and the delivery of' the receipt by the bank to Baiar with the statement by Baiar that he wanted to buy bonds would not be 'inconsistent with the continued relationship of debtor and creditor, and since there was no evidence of any directions to the bank as agent or trustee relative to the purchase of bonds and no entries made by the bank on its books changing the account, shows that it was the intention of the parties that the relationship of debtor and creditor should continue. Corroborative of this conclusion is the fact that Hobbs testified that one of the reasons for not having purchased the bonds before the bank closed was that “we were trying to conserve cash in order to keep the bank open.” From this statement it would appear that the bank interpreted the transaction with Baiar as giving it the right to continue to hold the money evidenced by the certificates as a part of its general assets. Under the evidence, appellee was not entitled to a preference. The view as herein expressed is supported by principles announced in Blakey v. Brinson, 286 U. S. 254, 76 L. Ed. 1089, 52 S. Ct. 516, 82 A. L. R. 1288; Howland v. People, 229 Ill. App. 23; People ex rel. Nelson v. Chicago Bank of Commerce, 282 Ill. App. 155.

Appellant’s answer to the intervening petition alleged that the . claim had been filed by John A. Baiar in his lifetime and allowed as a common claim that appellee was estopped to have it established as a preferred claim. The evidence does not warrant a finding that the claim had been previously allowed as a common claim although there was testimony brought out in cross-examination of appellee that such was the' fact. If there was such an allowance then under the authority of People ex rel. Nelson v. Farmers & Merchants Bank, 281 Ill. App. 354, appellee could not recover under his intervening petition. His petition makes no reference to the formal allowance of the claim as a common claim and does not aver facts upon which such an allowance, if made, could be set aside. Appellee is entitled to participate as a common creditor and have his claim allowed as such and to the end, that his rights may be protected as a common creditor, the order of the circuit court allowing a preference is reversed and the cause remanded with directions to allow appellee’s claim as a common creditor, if there is not an order of allowance already of record and if there is such allowance, to dismiss the intervening petition for want of equity.

The decree of the lower court is reversed, the cause remanded with directions. .

Reversed and remanded with directions.


author: Mr. Justice Stone

text:
    Lulu M. Crawford, Appellant, v. Anna Wyant and John Hancock Mutual Life Insurance Company, Appellees.

      Opinion filed March 6, 1936.
    Kevin Kane, of East St. Louis, for appellant.
    Beasley & Zulley, of East St. Louis, for certain appellee.
   Mr. Justice Stone

delivered the opinion of the court.

This appeal is prosecuted to reverse a decree of the city court of East St. Louis, Illinois. Plaintiff appellant, Lulu M. Crawford, filed her complaint in equity, asking that one of the defendants, John Hancock Mutual Life Insurance Company, he enjoined from paying the proceeds of a certain life insurance policy on the life of Frank D. Wyant to the defendant Anna Wyant, widow of the said Frank D. Wyant, deceased, and that such proceeds, amounting to the sum of $1,047.20, be paid to her as the beneficiary under said policy.

The defendant Anna Wyant, in her answer, claimed the proceeds of said policy, asserting that she was the beneficiary under said policy.

At the beginning of the trial the parties entered into a stipulation which was to be and was taken in place of any evidence to be offered in the case by any of the parties. Said stipulation is in words and figures as follows:

“It is stipulated by Lulu M. Crawford, plaintiff, Anna Wyant, widow of Frank Wyant, deceased, and John Hancock Mutual Life Insurance Company, a corporation, of Boston, Massachusetts, and their respective solicitors that the following are the facts, to wit:
“That Frank D. Wyant, in his lifetime, on the 4th day of May, 1915, made written application for a policy of life insurance in the John Hancock Mutual Life Insurance Company, a corporation of Boston, Massachusetts, in the amount of $2,500.00;
“That subsequently, on the 10th day of May, 1915, the said defendant John Hancock Mutual Life Insurance Company, a corporation, of Boston, Massachusetts, issued their certain policy numbered 412351 in an amount of $2,500.00, that the numbered policy No. 412351 was issued in conformity with the application dated May 4, 1915;
“That in the original policy one Laura Wyant, the mother of Frank D. Wyant, was the beneficiary;
“That subsequently, on the 14th day of January, 1928, the said Frank D. Wyant applied for a change of beneficiary in the said policy numbered 412351, and the said change of beneficiary was effectuated to Lulu M. Crawford, the plaintiff and a sister of Frank D. Wyant;
‘‘ That on the 22nd day of January, A. D. 1935, the said Frank D. Wyant nominated a change of beneficiary to his wife, Anna Wyant;
“That said nomination was made upon a regular form that was furnished to the said Frank D. Wyant by the said defendant, John Hancock Mutual Life Insurance Company of Boston, Massachusetts, and that said nomination of beneficiary, dated January 22, 1935, was filled out and witnessed and dated and signed; that is, witnessed by O. W. Knewitz, and said Frank D. Wyant signed said nomination of beneficiary on said form so furnished on the 22nd day of January, 1935, in which he nominated Anna Wyant, his wife, to be the beneficiary;
“That on the 23rd day of January, 1935, the said nomination of beneficiary, bearing date of January 22, 1935, was delivered to Louis P. Flauaus, superintendent for the John Hancock Mutual Life Insurance Company at East St. Louis, Illinois, together with said policy No. 412351, and that on the same day the said Louis P. Flauaus made the endorsements on the reverse side of said nomination as is required by the defendant Insurance Company in the usual course of its business; and that on said day, January 23, 1935, the said Louis P. Flauaus, local superintendent of said Insurance Company, forwarded the said nomination of beneficiary and the said policy No. 412351 to the home office of the defendant John Hancock Mutual Life Insurance Company at Boston, Massachusetts; that by a stamp on the back of the nomination of beneficiary, the said stamp shows that said nomination of beneficiary, together with said policy, were received in the home office of the John Hancock Mutual Life Insurance Company at Boston, Massachusetts, at 3 o’clock p. m. on Friday, January 25, 1935;
‘1 That said nomination of beneficiary, together with said policy, remained in the home office of the John Hancock Mutual Life Insurance Company from said 25th day of January, 1935, until the 28th day of January, 1935, at which time the said defendant John Hancock Mutual Life Insurance Company of Boston, Massachusetts, endorsed on said policy the following language in words and figures:
“ ‘The insured, under date of January 22, 1935, nominates Anna Wyant, wife, to be the beneficiary under this policy, the insured still reserving the privilege of other changes, subject to all the provisions of the policy, and subject also to any existing pledge or assignment hereof.
“ ‘ (Signed) John Hancock Mutual Life Insurance Company,
by Chas. A. Dieman, Secy.,
Dated at Boston, Massachusetts,
January 28, 1935.’
“That in and by the application signed by Frank D. Wyant on the 4th day of May, 1915, the following provision was contained:
“ ‘I expressly reserve the right, however, to change the beneficiary from time to time, in accordance with the terms of any policy, hereunder, by filing with the Company a written notice in such form as it may require. ’
“But that under clause 3 of the said policy issued on that application, among other things, contains the following provisions:
“ 'That, referring to change of beneficiary, if all rights have been reserved in the application herefor, the insured may change the beneficiary from time to time, subject to the rights of any assignee, by written request upon the blanks of' the company, filed at its home office, but such change shall take effect only upon endorsement hereon.’
“That there is no provision in the policy by which the Company exercises any discretion in the matter, but when his nomination of beneficiary on the form provided by the Company comes in duly filled out and signed by the insured, together with his policy, that the only thing that remains to be done is merely to stamp on the back of the policy the words that have already been dictated; that is a ministerial act; the Company does not reserve any right by its application or policy to exercise any discretion, but when the nomination paper comes in together with the policy in due form, the only thing required to be done by the Company is the ministerial act of placing the stamp on the back of the policy, which in this case was done with a rubber stamp, except the date, January 22, 1935, which was written on a typewriter and the words 'Anna Wyant, wife,’ were written on a typewriter and the date, January 28, 1935, was written on a typewriter; all the others having been placed on by a rubber stamp, with the name of the secretary placed in by a rubber stamp.
“That the said Frank D. Wyant departed this life on the 27th day of January, 1935; that there is due and payable under said policy numbered 412351 the sum of $1,047.20, the difference being due to loans made by the said Company to the said Frank D. Wyant in his lifetime.
“It is further stipulated by the John Hancock Mutual Life Insurance Company of Boston, Massachusetts, that $1,047.20 is the correct amount that said Insurance Company owes to someone and that they are ready and willing to pay the same into court whenever the Court directs the same to be paid to some proper person.”

The trial court found the equities to be with the defendant, Anna Wyant, decreed the amount of money due on the policy to be paid to said defendant and dissolved the injunction.

Plaintiff appellant relies upon three cases which he claims decide all questions here involved. They are Equitable Life Assurance Society v. Stilley, 271 Ill. App. 283; Freund v. Freund, 218 Ill. 189, and McEldowney v. Metropolitan Life Ins. Co. of New York, 347 Ill. 66.

It remains to decide whether the facts as shown by the stipulation bring the present case within the rule which is settled by those cases.

In Equitable Life Assurance Society v. Stilley, 271 Ill. App. 283, we said:

“The right of the insured to change the beneficiary was dependent upon the terms of the policy. Here the requirement was that ‘such change shall take effect only upon its indorsement on this policy by the Society. ’ ■ By the terms of the contract, the change could only be accomplished by compliance with such provision, and until the indorsement was actually made, there was no change. The insured died before the insurer made the final indorsement of change of beneficiary on the policy; hence there was no change in the lifetime of the insured, and at his death the rights of Mary Elizabeth Stilley, the originally named ben'eficiary, became vested, and were not affected by the subsequent indorsement. Freund v. Freund, 218 Ill. 189; McEldowney v. Metropolitan Ins. Co., supra.

In the Freund case, supra, the whole question was thoroughly gone into and the rule announced as above. The McEldowney case, supra, refers with approval to the Freund case.

It will be observed, however, that the facts in the case at bar are quite different from the facts in either of the cases above cited, and are such we think as to distinguish this case.from those cases. In the Stilley case, supra, the application for change of beneficiary was not received at the home office as prescribed in the policy until January 11, 1932; Stilley, the insured, was killed on January 10th. Thus it shows that the company had no opportunity to do the acts requisite for a change of beneficiary in that policy whether it be an act of discretion or a ministerial act.

In the Freund case the policy with proper application for change of beneficiary did not arrive at the home office until several days after the death of the assured, so that the same rule would apply to that case. There was not sufficient in those cases to place the parties in position to apply the maxim of equity that “Equity regards that as done which should have been done.” There was never opportunity to do the acts that were necessary by the authority alone which had 'the lawful right to do those acts in the lifetime of the assured.

In this case the application for change of beneficiary together with the policy made out in pursuance of the right prescribed in the assured’s application and in accordance with the modus operandi prescribed in the policy for the change of beneficiary were duly made out and filed with the local agent of the John Hancock Mutual Life Insurance Company. On the 23rd of January, said papers were sent by said local agent to the home office of the John Hancock Mutual Life Insurance Company. They arrived at the home office on the 25th day of January, 1935, and remained there until January 28, 1935, — the assured having died on the 27th of January, at least two full days after the papers, policy and so forth necessary for the change of beneficiary had arrived at the home office. There was nothing further that the assured could have done, and he had done all things required of him in his lifetime, — had presented the papers to the authoritative body, — that is, the home office, — in his lifetime, and lived two days thereafter. Under the provisions of the policy and the application there was nothing for the John Hancock Mutual Life Insurance Company to do but indorse the change.

The parties have stipulated that all that was to be done was a mere ministerial act on the part of the John Hancock Mutual Life Insurance Company. This act they did not perform. This act they should ha,ve performed and had they done so promptly as was their duty in the premises, the beneficiary would have been changed in the manner prescribed. In this respect this case differs from the cases above cited. The failure to act on the part of the John Hancock Mutual Life Insurance Company was tantamount to a refusal to do what the assured had a right to have done. It was the same in effect as if they had refused to make the indorsement, which under the policy and the application of the assured they had no right to refuse.

“As a general rule it is probably true that if the assured has taken all the steps necessary and otherwise done all in his power to effect a change of beneficiary and all that remains to be done is some purely ministerial duty on the part of the officers of the society, then the change will be regarded as complete.” (Joyce on Insurance, Volume 2, section 751.)

To hold that the change was not completed under the circumstances in the case at bar is to say that the insurance company by mere neglect, or arbitrarily, may repudiate its policies and its applications at liberty. This we think they cannot do. If it could keep this policy two days without making the indorsements required, — a change it was lawfully bound to make, then it might keep the policy under the same conditions for 30 days, and thus utterly destroy substantial property rights both of the assured and the beneficiary.

We are of the opinion that the maxim of equity above referred to applies in this case, and that the change of beneficiary was in fact made; that the trial court did not err in entering the decree which it did enter, and that said decree should be and it is hereby affirmed.

Decree affirmed.


text:
    Dora Dorris, Appellee, v. V. H. Center, Appellant.

      Opinion filed March 6, 1936.
    Moses Pulverman, of Benton, for appellant.
    Thurlow G. Lewis, of Benton, and Catron & Hoffmann, of Springfield, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

This is an appeal by V. H. Center, defendant below, from a judgment entered by the circuit court of Franklin county in favor of Dora Dorris, plaintiff below, in a suit for rent due on a lease. The trial below was had before the court without a jury, upon a stipulation of facts.

Dora Dorris, appellee, under written lease, let certain premises in Harrisburg, Illinois, to V. H. Center, appellant, for a business storeroom, for a term of 43 months ending November 1, 1935, for a total sum of $6,450, payable in instalments of $150 in advance, on the first day of each month. There were provisions for remodeling the premises, part of the work to be done by each of the parties. There was a provision against assignment or sublease without the written consent of the lessor. The lease contained the following provision which has brought on this controversy: “And that upon the non-payment of said rent in the time and manner herein provided, the said Party of the First Part may at her election either distrain for said rent due or declare this lease at an end, and recover possession as if the same were held by forcible detainer. It is further hereby stipulated and agreed that any action on the part of the Party of the First Part in declaring this lease at an end or in recovering possession by forcible entry or detainer proceedings that said election or action shall not bar the rights of the said Party of the First Part in recovering the remainder due on said rent.”

Appellant quit business in July, 1933, and removed his stock and fixtures from the premises. He paid the rent in full to and including November, 1933. He then sublet the premises.to the Maytag Specialty Company for a rent of $30 per month. On December 27, 1933, appellant advised appellee by letter that he had terminated his lease, and that he had so advised the Maytag Company, advising it to pay rent to appellee. Appellee has made a written demand of appellant for each month’s rent and has refused to recognize the Maytag Company as her tenant.

Appellee has never distrained for rent, and has not determined the lease or taken possession. This suit was instituted before the end of the term for instalments of rent due at the time suit was instituted.

Appellant contends that the provision of the lease quoted gives the lessor two remedies for nonpayment of rent, that is: distraint; and termination of the lease with the right to sue for the complete balance due on termination of the lease. It is contended that in the absence of termination of the lease no suit lies to recover the rent.

Appellant relies upon the application of the maxim “Expressio unius est exclusio alterius.” The contention is that since the above remedies are mentioned, any other remedy is by implication excluded. We are referred by counsel for the parties to the following, authorities: Straus v. Yeager, 48 Ind. App. 448, 93 N. E. 877; Isman v. Hanscom, 217 Pa. 133, 66 Atl. 329; Argyle v. Plunkett, 226 N. Y. 306,124 N. E. 1; Wing v. Ansonia Clock Co., 102 N. Y. 531, 7 N. E. 621; Whitcomb v. Indianapolis Traction & Terminal Co., 64 Ind. App. 605,116 N. E. 444; Tate v. Neary, 65 N. Y. S. 40; Queens Park Gardens v. Spar, 234 N. Y. S. 404; Smith v. Mohn, 87 Cal. 489; Wandell v. Johnson, 71 Mont. 73; Hermitage Co. v. Levine, 248 N. Y. 333, 162 N. E. 97; McCready v. Lindenborn, 172 N. Y. 400, 65 N. E. 208; Mann v. Munch Brewery, 225 N. Y. 189, 121 N. E. 746; 13 Corpus Juris, 537; 25 Corpus Juris, 220; 35 Corpus Juris, 1174. Appellant has also cited a number of Illinois decisions holding that the court will not remake the contract of the parties where the intent is clearly expressed, even though the expressed intention creates a hardship. Appellant also points out that the reservation of the right to sue for the remainder due on the rent after termination of the lease is an unusual remedy, and not one given by law in the absence of contract for that particular remedy.

Without reviewing the above authorities in detail here, it is sufficient to say that they develop the following considerations with respect to the use of the maxim “Expressio unius est exelusio alterius”; that it is a formula of logic having its most frequent use in the construction of remedial statutes; that it means that it is proper to assume that when particular language has been devoted to the expression of an idea, other considerations than those expressed were intended to be excluded; that it cannot have the same force where persons are in the habit of taking particular ideas for granted without expression of their intent to do so,— for example, where the legislature adopts a remedy for a situation where remedies existed at common law, without providing that the common law remedies continue in force; that the maxim is not applicable where parties to a contract are likely to assume that it is unnecessary for them to state in the contract that they are entitled to the remedies which the law gives them; and finally, that it is simply a device for determining the intent of the parties, and subject, of course, to all of the other considerations that are necessarily involved in determining such intent, with the result that there are many situations in which its use will hinder rather than further the discovery of that intent. Where certain remedies are given to contracting parties by law, there has been a marked tendency to require a clear expression of an intent to forego such remedies before a party will be deprived of them.

The provision in question is that the lessor “may at her election either distrain” for rent due, or declare the lease at an end. We are asked to hold that, notwithstanding the fact that other remedies would ordinarily exist, the parties could not have had in mind that the lessor might not use either of the remedies there provided. We do not find it necessary to construe that language to mean that if the lessor is to have any remedy for the nonpayment of rent she “must elect” between the two remedies mentioned. The provision expressly reserves the right to sue for the remainder of the rent due, even if the lease is terminated. It is contended that this reservation is confined to a right to a single suit for the balance. It would seem a proper answer to this contention that the right to sue for the remainder is not so restricted by the language of the provision. It is further contended that any right to sue for the balance of the rent, prior to the end of the term, is conditioned upon a precedent termination of the lease. This would seem to be a strained construction. The provision is that, if the lessor should elect to recover possession, such election should not bar the right to sue for the remainder of the rent due. The normal inference from this provision is not that recovery of possession is a condition precedent to suit for the rent, but that it is understood that such recovery of possession shall not operate as a condition subsequent to cut off a right that is understood by the parties to exist. Now the right to' sue for' the remainder due on the rent is not defined in that clause. The ordinary interpretation would be that reference is being made to whatever right to rent there is under the lease. This assumption is further strengthened by the fact that the reference is to the ‘ ‘ rights ’ ’ of the lessor, suggesting more than one alternative. The rights given by law under a provision for monthly instalments of rent include the right to sue for the instalments as they come due, the right to sue for several instalments that have accrued, and the right to sue for the entire amount due at the end of the term. We find no language in the lease clearly restricting those rights.

The judgment of the circuit court of Franklin county will therefore be affirmed.

Judgment affirmed.


text:
    A. P. Poirot, Administrator Pro Tem of the Estate of John P. Gundlach, Deceased, Appellant, v. Aloys Gundlach, Appellee.

      Opinion filed March 6, 1936.
    Eugene W. Kreitner and Farmer, Klingel & Baltz, all of Belleville, for appellant.
    Kramer, Campbell, Costello & Wiechert and Norman J. Gundlach, all of East St. Louis, and Preston K. Johnson, of Belleville, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

On the fifteenth of June A. D. 1925, John P. Gundlach, Aloys Gundlach and Joseph E. Gundlach entered into a certain agreement in writing which is in words and figures as follows:

“This agreement made and entered into this fifteenth day of June, A. D. 1925, by and between John P. Gundlach, Aloys Gundlach and Joseph E. Gundlach, witnesseth:
‘1 That whereas Aloys Gundlach is this day indebted to John P. Gundlach for the sum of Fifty-six Thousand Eight Hundred and twenty-eight and 81/100 ($56,828.81) Dollars, which amount has been agreed upon by John P. Gundlach and Aloys Gundlach to be correct, and whereas John P. Gundlach is desirous to have additional assurance of the payment of the same and whereas Aloys Gundlach and Joseph E. Gundlach are about to negotiate a lease upon their coal mining-properties and the capital stock of the Caseyville Railway Co., with G. L. Tarleton and O. B. Schaefer with the option and privilege to buy said mining properties and said capital stock, now therefore it is agreed by the parties hereto that if the above option is exercised that all the monies received in excess of One Hundred Thousand ($100,000.00) Dollars shall be applied on the above amount of Fifty-six Thousand Eight Hundred and twenty-eight and 81/100 ($56,828.81) Dollars, due John P. Gundlach from Aloys Gundlaeh until the same has been fully paid plus six per cent interest from this date until paid.
“Aloys Gundlaeh hereby agrees that the above is his personal obligation and if paid as provided above that he will reimburse Joseph E. Gundlach to the extent of one-half of the amounts paid.
“This agreement shall be binding upon our heirs, administrators, executors, successors and assigns.
“In witness whereof we have hereunto set our hands and seals the day and year first above written.
“John P. Gundlach (Seal)
Aloys Gundlach (Seal)
Joseph E. Gundlach (Seal) ”

On November 11, 1929, John P. Gundlach suddenly died. On the fourth day of November, 1929, seven days before the death of John P. Gundlach he delivered to Miss Barbara Gerneth, his secretary, a package containing certificate of title to a piece of property, bonds, water stock and his executed copy of the above and foregoing instrument. There were three signed copies of this instrument. One was retained by John P. Gundlach, one by Aloys Gundlaeh and one by Joseph E. Gundlach. Joseph E. Gundlach was appointed administrator of the estate of John P. Gundlach and inventoried among the assets of said estate his copy of the foregoing instrument with the statement that he was unable to state what value if any it had and he therefore mentioned it without any statement as to its value.

On November 30, suit was brought in the circuit court of St. Clair county on the foregoing instrument which is. known in this record as plaintiff’s exhibit 2 by the Fidelity Trust Company as administrator pro tem of this estate. This company later resigned and was succeeded as plaintiff by A. P. Poirot as administrator pro tem. Many contentions arose as to the settlement of the pleadings in the case and it was finally brought to this court, 269 111. App. 665. We there held that the fourth count of the second amended declaration was a good count and made appropriate orders for the carrying out of that holding. The cause was reinstated in the circuit court and came to trial on said fourth count and a plea of the general issue. Before the issues, after reinstatement, were made up, defendant filed three special pleas, two of which raised the question of the statute of limitations. The fourth plea alleged that John P. Gundlach on, to wit, November 4, lawfully gave, surrendered and delivered to one Barbara Gerneth the chose in action mentioned in the fourth count of the second amended declaration and thereby all possession and ownership of said chose in action irrevocable passed to said Barbara Gerneth and that at the time of his death said John P. Gundlach was not, and the plaintiff as his administrator pro tem is not now and never was the owner of said chose in action. Said plea further alleges that the said Barbara Gerneth prior to this suit released and discharged the defendant of all claims or demands by reason of said chose in action. Demurrers were sustained to these special pleas.

Plaintiff appellant contends (1) that the non-negotiable instrument cannot be the subject of a gift, nor be assigned except in writing, and hence John P. Gundlach did not part with any interest in the instrument, but retained legal and equitable title thereto, and that said acknowledgment of indebtedness remained a part of his estate. (2) That the alleged donee, Barbara Gerneth, could not maintain suit on the instrument in her own name without complying with section 18 of the 1907 Practice Act,- by filing her affidavit alleging herself to be the actual bona fide owner, and that the provisions of said act should have been complied with in this case, which was not done. (3) That said Barbara Gerneth is an incompetent witness and her testimony is inadmissible to prove the gift to her from decedent. (4) That the defense that said instrument was given to Barbara Gerneth by decedent cannot be presented under the general issue. (5) That the question of the gift of the instrument to Barbara Gerneth is res adjudicata in this case. (6) That because there is not proof of a release to Aloys Gundlach by Barbara Gerneth, he is not released from his obligation to said estate, and (7) that the evidence if taken at its face value does not prove a gift or release.

Defendant-appellee contends :

1. That the instrument sued upon can be the subject of a gift without the necessity of a written assignment.

2. That the trial judge did not err in permitting testimony of the gift under the plea of nonassumpsit.

3. That the witnesses called on behalf of the appellee are competent to testify.

4. That there was clear, convincing, certain and nnequivocable proof to sustain the gift.

5. That the trial court did not err in considering the testimony of Barbara Gerneth and Joseph E. Gundlach.

6. That the judgment is not erroneous and is sustained by the proof.

7. That the court did not err in entering judgment on behalf of appellee and against appellant.

8. That the judgment should be affirmed on behalf of appellee and for costs.

The case was tried before the court without a jury. The court found the issues for the defendant and entered judgment against plaintiff for costs. From said judgment plaintiff has appealed to this court.

Two questions are presented by this record: 1. Can the instrument herein sued upon be transferred by gift without the necessity of a written assignment? 2. Is there competent evidence in this record to prove that a gift to Miss Gerneth of the instrument in question was in fact made?

On the first question the great weight of modern authority is to the effect that it may be done. In Thornton on Gifts and Advancements, ch. 2, page 242, sec. 273, the author discusses the English law that choses in action could not be made the subject of gift without assignment. He there describes the change in the English rule as it was made in tlie case of Veal v. Veal, 27 Beav. 303, where the Master of the Rolls said:

“I also think that it is a much more healthy state of law that the validity of a gift should not depend on whether the testator had written his name on the back of the bills or not, if it is clear that he intended to give them away.”

Many cases in Illinois and elsewhere hold that negotiable instruments may be the subject of a gift without indorsement, and by delivery with intent to pass title, such intention being manifested by words or conduct. Martin v. Martin, 174 Ill. 371; Rothwell v. Taylor, 303 Ill. 226.

If this may be said to be the settled rule, then it does not seem in reason to be a wide departure to say that a chose in action not negotiable may be transferred by gift by delivery and manifestation of intention without indorsement or assignment. The author in Corpus Juris indeed places them in the same class, citing a variety of authorities in the following language:

“The modern rule therefore is that a gift of a chose in action not negotiable and negotiable paper not endorsed may be consummated by delivery of the documentary evidence of it without a complete transfer of the legal title,”

To the same effect is the law on this subject as laid down in 28 C. J. page 644, which is as follows:

“Every species of property, real and personal, legal or equitable, in possession, reversion or remainder, vested or contingent, incorporeal as well as corporeal, and including dioses in action, may be the subject of a gift inter vivos.”

And again on pages 657 and 658 of the same volume it is said:

“Where, however, the chose in action is evidenced by a written instrument, the general rule is that a valid gift thereof may be made by' a mere delivery of the instrument, where the present intention of the donor to make such transfer is shown.”
“The modern rule is that a gift of a chose in action not negotiable, and negotiable paper not endorsed may be consummated by delivery of the documentary evidence of it without a complete transfer of the legal title. ” 12 R. C. L. page 938.

Numerous authorities from various jurisdictions are to be found which hold the above and foregoing principles. One of the best illustrative cases, however, and a case in which the facts are very similar to the facts in the case at bar, is the case of In re Huggins Estate, 204 Pa. 167. In that case, after reciting the facts, which as said before are very similar to those in the case at bar, the court said:

“It cannot, we think, be controverted that a chose in action, such as notes, bonds, written contracts, and the like, held by donor may be the subject of a gift, either inter vivos or mortis causa (Thornt. Gifts, page 232, sec. 267), nor can it be controverted that a gift of a written contract, which calls for the payment of money to the donor, can be made by parol, and that a written assignment is not necessary where there is a delivery of the written contract by the donor to the donee, with the intention to make a gift of it and the money it secures. To the objection that an unassigned written agreement calling for the payment of money to the donor cannot be made the subject of a valid gift inter vivos, it may be said: ‘As a good and effectual equitable assignment of a chose in action may be made by parol, and as courts of law take notice and give effect to such assignments, there seems to be no good foundation for this objection. It is true that the cases, which are numerous, in which such equitable assignments have been supported, are founded on assignments for a valuable consideration; but there is little, if any, distinction in this respect between contracts and gifts inter vivos. The latter, indeed, when made perfect by delivery of the thing given, are executed contracts. By delivery and acceptance the title passes; the gift becomes perfect and is irrevocable. There is, therefore, no good reason why property thus acquired should not be protected as fully and effectually as property acquired by purchase. And so we think that a gift of a chose in action, provided no claim of creditors interferes to affect its validity, ought to stand on the same footing as a sale.’ (Thornt. Gifts, p. 240, sec. 271.)” . . .

We have been presented with no authority which seems to us sufficient to overcome the rule laid down by the above cited decisions and many more which are available.

It follows from the above considerations that we are of the opinion that the instrument in question was such as could be transferred by gift completed by delivery together with manifestation of intention to give and to divest the donor of any title or interest therein. If the gift in the case at bar was so completed it follows that John P. Gundlach could not recover it back and certainly could not bring suit upon it. If he could not bring suit upon it in his lifetime because he had parted with all interest in it, it goes without saying that his administrator could not.

We are now to consider whether there is competent evidence to show that the gift was in fact made. It is urged that proof of transfer of title to the instrument sued on cannot be shown under the plea of nonassumpsit. With this contention we cannot agree nor can we agree with the argument that the sustaining of a demurrer to the special plea is res adjudicata of the defense sought to be made. In suits of this character the plaintiff must prove title, right and interest in the instrument sued upon. The attempted proof in this case consisted only of the introduction of a copy of the instrument sued upon which was held by a third party. The plea of nonassumpsit put the question of title, right and interest of appellant in question and denied that appellant had any title right or interest therein. In Benes v. Bankers Life Ins. Co., 282 Ill. 236, our Supreme Court said:

“It is well settled that nearly every defense is admissible, under the general issue or plea of nonassumpsit, which shows that there was not a subsisting cause of action in the plaintiff at the time the suit was brought. . . . Under such general issue the defendant may put in issue the plaintiff’s capacity to sue, the execution of the contract and the release and satisfaction and payment of the debt, if made previous to the commencement of the suit.”

That Miss Gerneth was an incompetent witness does not seem to us to be borne out at all by her status. She is not a party to the suit nor is she a person interested in the outcome thereof. Whatever interest she had had in the instrument sued on had been „ transferred before the suit and there is not evidence or circumstance tending to show that she had transferred her interest in the subject matter of the suit for the purpose of making herself competent as a witness. In our judgment she was a competent witness. She testified as to the circumstances surrounding the gift and as to the statement of the donor at the time the transfer of title was made and of her subsequent transfer to Joseph for the use of Aloys Gfundlach. The trial judge heard her evidence and obviously believed her story. We are unable to say that he erred in so believing and in acting upon her testimony in deciding the issue of the case.

The judgment of the circuit court is affirmed.

Judgment affirmed.