text:
    Mark Brackett, Administrator of the Estate of Cora Grace Brackett, Deceased, Appellee, v. The Builders Lumber Company of Decatur, Illinois, Appellant.
    Gen. No. 8,284.

      Opinion filed January 24, 1929.
    Mills Bros. & Armstrong, for appellant; Thos. H. Armstrong, of counsel.
    Lawrence O. Wheat, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

In this case the appellee, Mark' Brackett, as administrator of the estate of Cora Grace Brackett, deceased, brought suit for the benefit of the next of kin of the deceased, to recover damages claimed to have been sustained by them in the death of the deceased which is alleged to have occurred through the negligence of a servant of the appellant, The Builders Lumber Company of Decatur, Illinois. The declaration avers that on the 19th day of October, 1927, a truck, under the control and management of appellant’s driver, was negligently driven upon and along North Franklin street in the City of Decatur at or near the point of intersection of North Franklin street and East North street; and that it ran over the deceased, Cora Grace Brackett, when she was in the act of crossing North Franklin street, and she thereby received injuries from which she died. There are five counts in the declaration. The first count charges general negligence in the operation and management of the truck; the second count alleges, a failure on the part of the driver of the truck to give the warning required by the statute, of the approach of the truck in driving along the street; the third count alleges a failure on the part of the driver to take the reasonable precaution required by the statute for the safety of pedestrians and others using the highways; the fourth count alleges that the driver of the truck at the time of the fatal injury was driving the truck at a speed greater than was reasonable and proper having regard to the traffic and the use of the way; and the fifth count charges that the driver of the truck drove it at a greater rate of speed than 15 miles an hour at the place of the injury, which the declaration alleges was in a closely built-up- business district of the City of Decatur.

The general issue was filed to the declaration and issue joined thereon. The trial resulted in a verdict of $5,000 damages for the appellee, upon which the court rendered judgment, and this appeal is prosecuted from the judgment.

Various questions are presented on appeal for review. One of the principal grounds urged for reversal of the judgment is that the appellee made improper use of a coat which, it was claimed, the deceased had on at the time she was run over by the truck, and which bore the marks of the truck wheel that ran over her and crushed her body. The record discloses that appellee’s attorney displayed this coat to the jury and made comments in reference to the marks thereon before it was admitted in' evidence, and without first making the necessary preliminary proof under which it might be competent as a matter of evidence; and that though he made a promise to the court to lay a proper foundation for its introduction afterwards, he did not do so. The court, at the close of the evidence, merely excluded the testimony with reference to the coat given by one of the witnesses, and told the jury to dismiss it from their minds. In reference to this contention, it must be pointed out that the coat which the deceased wore at the time she was fatally injured could only he used as evidence for certain specific purposes, after laying a proper foundation by preliminary proof which would make it competent under the issues. It is apparent, that the use of the coat for the purpose of displaying the wheel marks of the truck which crushed out the life of the deceased would necessarily tend not only to arouse a strong feeling of sympathy in the jury, but improperly and intensely inflame the minds of the jury in the controversy. Merely striking out the evidence of the witness who testified to the identity of the coat, and telling the jury to dismiss this testimony from their minds would not cure the mischief wrought by the use and display of the coat under these circumstances. This feature of the trial of the case in and of itself involves reversible error.

There are also some errors in the instructions given for appellee to which attention should be directed. Instruction No. 5 is erroneous, because it does not limit the appellee’s right of recovery to the negligence alleged in the declaration or some count thereof. Peterson v. Sears, Roebuck & Co., 242 Ill. 38; Crane Co. v. Hogan, 228 Ill. 338; Chicago & A. R. Co. v. Mock, 72 Ill. 141; Illinois Cent. R. Co. v. Chicago Title & Trust Co., 79 Ill. App. 623; Zdinden v. DeMoulin, 245 Ill. App. 248.

Instruction No. 8 is a general proposition of law embodying the statement that there is no imperative duty resting on pedestrians to keep a continuous lookout for automobiles; and that if they fail to do so and are injured, contributory negligence will not be conclusively imputed to them. This is not a correct statement of the principle involved in the instruction; the lookout for automobiles, which pedestrians are required to make, depends upon the situation in which they are and the circumstances of each case. This instruction was misleading in this, that it had a tendency to confuse the jury in passing upon the question of contributory negligence here involved. What is said in reference to instruction No. 8 applies with equal force to instruction No. 9.

Instruction No. 15 also contains a general proposition of law, namely, that the creation of boulevard streets by the city council are police regulations only; and that such regulations apply only to vehicles, and have no application whatever to pedestrians. It is inaccurate to say that, because of the creation of boulevard streets by the city council, the provisions of the ordinance are police regulations only; and that therefore such regulations apply only to vehicles and have no application whatever to pedestrians. There are a number of police regulations concerning boulevarded streets applying to vehicles and to pedestrians as well; even those that are made specifically to apply only to vehicles must necessarily in the effect concern pedestrians who use the streets. This instruction was therefore misleading and confusing without stating the relative rights and duties of drivers of vehicles and pedestrians using the streets and street crossing.

Instruction No. 16 as modified and given is as follows:

“The court instructs the jury that under the law where a statute imposes a specific duty upon any person, and if he fails or neglects to perform such duty, such failure or neglect is ‘negligence per se’ that is such failure or neglect to perform such duty is of itself negligence, and he is liable to any person injured by such failure or neglect to perform such duty,- Provided such failure or neglect to perform such duty was the proximate cause of the alleged injury.
“And in this case if you find from the evidence herein that the defendant by its servant failed or neglected to perform the duties imposed upon him by statute in said declaration mentioned, and by reason thereof plaintiff’s intestate was injured as a result from said injuries died, she being then and there in the exercise of due caution for her own safety, then in such state of the proof you should find the issues for the plaintiff. ’ ’

The jury were told in this instruction that the failure, or neglect to perform a statutory duty is “negligence per se.” And if the jury find from the evidence that the appellant by its servant failed or neglected to perform the duties imposed upon him by the statute it was negligence per se; and if by reason of such negligence the plaintiff’s intestate was injured and died as a result of such injuries, “she being then and there in the exercise of due caution for her own safety,” the jury 'should find the issues for the appellee. The chief vice of this instruction is, that the jury are told that a failure to perform a statutory duty is negligence per se; the mere failure to perform a statutory duty would not necessarily be negligence; failure to perform a statutory duty may be negligence if the circumstances under which the failure to observe the statute indicate a neglect of the duty; but mere failure to perform a statutory duty may not be negligence. The instruction was also erroneous in not confining the negligence referred to therein to the failure to perform the particular statutory duties alleged in the declaration.

Instruction No. 17 which relates to the matter of damages is as follows:

“The court instructs the jury that if you find the issues for the plaintiff you will fix the amount of the plaintiff’s damages to be determined by a consideration of all the evidence herein and in fixing such damages you are entitled to take into consideration the pecuniary loss, if any, sustained by the next of kin; the earning capacity, if any, of deceased; the age and probable duration of life of the.deceased; the physical condition and habits of thrift and industry of deceased; the loss of support and education, if any, to the next of kin and from all such evidence you will determine the amount of a fair and just compensation to be awarded to the said plaintiff, if any. ’ ’

This instruction gave directions to the jury concerning the fair and just compensation to be awarded as damages. " The fair and just compensation which the jury may fix is limited by the Injuries Act, Cahill’s St. ch. 70, ¶ 2, to pecuniary loss suffered by the widow and next of kin of the deceased and necessarily excludes the idea of compensating for any other kind of loss suffered. Certain elements for awarding damages are mentioned in the instruction in addition to pecuniary loss. While the elements referred to, if proven, were proper to be taken into consideration by the jury in determining the amount of pecuniary loss, they could under the wording of the instruction be considered as additional elements for fixing damages, and in this respect the instruction was erroneous.

For the reasons stated, the judgment is reversed and the cause remanded.

Reversed cmd remanded.


source: Caselaw Access Project

author: Mr. Justice Eldredge delivered

license: Public Domain

text:
    The People of the State of Illinois, Appellee, v. Shirley Pierson, Appellant.
    Gen. No. 8,249.
    Opinion filed January 24, 1929.
    L. T. Graham, for appellant.
    Edwin Johnston, State’s Attorney, for appellee; Merrill H. Johnston, of counsel.
   Mr. Justice Eldredge delivered

the opinion of the court.

On May 3, 1926, appellant, having been convicted on two counts of an indictment charging him with the unlawful sale of intoxicating liquor, was sentenced in the circuit court of Pike county to serve 60 days at the State farm at Vandalia on each of said counts, the sentences to run concurrently, a fine of $300 on each count, and the costs of prosecution. From this judgment and sentence appellant sued out a writ of error from the Appellate Court, Third District, and a supersedeas was granted. The judgment and sentence of the circuit court of Pike county was affirmed by the Appellate Court in November, 1926. [243 Ill. App. 642.] Appellant thereupon petitioned the Supreme Court of Illinois for a writ of certiorari, which petition was denied and an affirming order of the Appellate Court was filed in the circuit court on May 3, 1927. The People then sued appellant and his bondsmen on the bond given by him to secure the order of supersedeas on his writ of error to recover the fine and costs. In this action the People were defeated at the August term, 1927, of the county court. On February 13, 1928, the People caused to be issued an execution to recover the fine and costs, as provided by section 15, division XIV of the Criminal Code, ¶ 764, Cahill’s St. ch. 38, ¶ 788; Smith-Hurd Ill. Rev. Stat. 1927. This section provides that the clerk of the court in which the conviction is had shall, at the end of the term, issue an execution for every fine that shall have been imposed during the term, and remains unpaid, and all costs of conviction remaining unpaid. It is claimed by appellant that this section of the statute is mandatory and that the clerk having failed to issue the execution at the end of the term at which appellant was convicted, the execution which was issued in February was void and the court had lost jurisdiction of the judgment. Appellant made a motion in the court below to stay and quash the execution, which was overruled by the circuit court; to reverse this ruling this appeal is prosecuted.

We cannot agree with the contention made by appellant, which, if true, would in many cases make it impossible to collect a fine by execution. The case at bar is a good example of such a situation. By suing out a writ of error from the Appellate Court and procuring a supersedeas all proceedings in the circuit court were stayed and the clerk of said court was powerless to issue the execution. It can readily be seen that if the construction sought by counsel for appellant is correct, then any defendant could evade the payment of any fine by suing out a writ of error from the Appellate Court and obtaining a supersedeas. After the Appellate Court entered its judgment on the writ of error the defendant again delayed the issuance of the execution by his petition for a certiorari in the Supreme Court.' It is true that the next delay was caused by the People in attempting to collect the judgment by suing on the supersedeas bond. While it is true that the law contemplates that means for the collection of fines should be promptly used, yet the facts in this case show that most of the delay was caused by appellant himself and there was no action on the part of the People tending to show any abandonment of the collection of the fine, or any unreasonable delay in having the execution issued. The facts in this case are far different than those which appeared in the cases of People v. Shattuck, 274 Ill. 491; People v. Windes, 283 Ill. 251, and People v. Leinecke, 290 Ill. 560, cited by counsel for appellant.

The judgment of the circuit court is affirmed.

Affirmed.


author: Mr. Justice Eldredge

text:
    Ora Williams, Plaintiff in Error, v. Charles E. Thady, Defendant in Error.
    Gen. No. 8,259.
    Opinion filed January 24, 1929.
    William N. Hairgrove, for plaintiff in error.

      John A. McKeene and R. M. Riggs, for defendant in error.
   Mr. Justice Eldredge

delivered the opinion of the court.

Ora Williams, plaintiff in error, brought his action in trespass in the circuit court of Scott county against defendant in error. On a trial of the case a verdict and judgment were rendered in favor of the defendant in error.

In the first count of the declaration it is charged that the defendant on the 16th day of July, 1927, with force and arms and by brandishing and flourishing certain firearms assaulted the plaintiff, laid hold of him and with great violence pulled and dragged him about in his dwelling, forced him out thereof, compelled him to go in and along the public streets of the village of Exeter and along a public highway leading from said village to the City of Winchester and along the public streets of Winchester to the county jail where he was imprisoned without any reasonable or probable cause or lawful process and so detained as a prisoner for 44 hours. In the second or additional count, after setting out the aforementioned averments, it is also alleged that the defendant committed the acts unlawfully and without warrant or process from any court and without reason to believe that the plaintiff had committed a felony and when the latter had committed no offense in defendant’s presence and that said acts were done by defendant wantonly and maliciously, etc. The defendant filed three pleas, the first being a plea of the general issue. The third is a special plea in which it is averred that plaintiff, before the day in question, unlawfully had in his possession in his residence in Exeter certain intoxicating liquor containing more than one-half of one per cent of alcohol by volume, in violation of the Illinois Prohibition Act, and shortly before said time had unlawfully sold said intoxicating liquor, in violation of said act, and on the 16th day of July, 1927, one George E. Mann informed the defendant that the plaintiff unlawfully had in his possession certain intoxicating liquor, in violation of said act, and that he had bought from the plaintiff, on the residence premises of the plaintiff in Exeter, four drinks of whisky and that said whisky was drunk in the house of the plaintiff on his said residence premises; by reason of which the defendant at the said time had good and probable cause to suspect, and did strongly suspect, the plaintiff to have been guilty of the said crimes above mentioned in this plea; wherefore the defendant, who was then sheriff of said county, on said day went to said residence of plaintiff and there gently laid his hands on the plaintiff and arrested him, there then being danger that he would otherwise escape, and conveyed him to Winchester, the county seat of said county, where the defendant arrived • with the plaintiff after nightfall on said day, the same being Saturday, wherefore the defendant, as such sheriff, did confine the plaintiff in the county jail until the morning of Monday, July 18,1927, at which time an information was filed in the county court against plaintiff charging him with the crime of unlawfully having in his possession said certain intoxicating liquor in violation of said act, and on the filing of „ said information the county judge fixed the bail of the plaintiff at $1,000, which was given about two o ’clock on said day, and he was released from custody; that afterwards on August 1, 1927, an amended information was filed in said county court against the plaintiff, charging him with the crime of unlawfully having in his possession certain intoxicating liquor containing more than one-half of one per cent of alcohol by volume, in violation of said act, and also charging him with the crime of unlawfully selling said intoxicating liquor, in violation of said act, and that said information and said amended information are now pending and undetermined in said county court.

The amended second plea alleges, in substance, that, shortly before the time of the arrest, the plaintiff unlawfully and wilfully did possess, for the purpose of sale, certain intoxicating liquor in violation of said act, and did unlawfully and wilfully sell said liquor in violation of said act, and that on" the 16th day of July, 1927, one George E. Mann informed the defendant that the plaintiff so unlawfully had in his possession, for the purpose of sale, certain intoxicating liquor in violation of said act and that said Mann had bought from the plaintiff, on said residence premises, four drinks of whisky, which were drunk in the house of the plaintiff on said premises, and that defendant, in good faith, believed the said statements of the said Mann to be true and had good and reasonable cause and ground to believe and did believe that plaintiff was guilty of and had committed the said crimes above mentioned, wherefore the defendant, as sheriff, arrested him, etc.

To the last plea mentioned the plaintiff filed ° a replication in which he avers that defendant did not arrest him because of information and belief that plaintiff had committed a criminal offense, as in said plea alleged, because the defendant at said time was then and there acting under the pretended authority of a certain search warrant issued out of the county court directing him, in the name of the People of the State of Illinois, to search certain property therein particularly described and seize and bring certain property therein described and all persons in whose possession it was found, which said real estate so described was not the real estate that said defendant searched at the said time, etc.

Exeter is a very small town, having about 100 inhabitants. The evidence shows that a search warrant was delivered to the defendant, as sheriff, authorizing him to search the home of Ora Williams in Exeter. The house is described as being on the west side of Center street in said town, when, as a matter of fact, the house was located on the east side of Center street. George E. Mann was an investigator acting under the direction of the sheriff and State’s attorney and had told defendant of the purchasing of whisky in the house of the plaintiff and on the day in question, the sheriff having the search warrant in his possession and taking three men with him, went to the home of plaintiff, which he found to be on the east side of Center street instead of on the west side thereof as set out in the search warrant. The plaintiff came to the door and while talking with the defendant his wife and son began breaking jugs containing intoxicating liquor in' the house. The house consisted of one room and this was done in plain view of the defendant. Defendant then arrested the plaintiff and told him to get into the automobile, in which he was brought to Winchester. The defendant also took from the house one of the jugs containing whisky. There is no evidence of any kind, that the plaintiff was in any way or manner physically abused, either at the time, on the way to the jail or after he arrived there. A number of witnesses testified that the general reputation of the plaintiff as a law-abiding citizen in the neighborhood where he resided was bad.

The theory of the defendant in error is that he had a right to make the arrest without a warrant where he had reasonable grounds for believing that plaintiff had committed a crime. He testified that he knew of the bad reputation of the plaintiff and had been informed by Mann of the violations of the Prohibition Act by him and claims that he had a right to make the arrest without any search warrant.

In the case of People v. Swift, 319 Ill. 359, it was said:

"Concerning the first objection, plaintiff in error Morgan contends that he was illegally searched by the officers without a search warrant, and that the court should therefore have ordered a return of the money. The evidence of the State is that the plaintiffs in error were arrested on suspicion that they were involved in the bank robbery and that the officers searched both men when they arrested them. It is the rule in this State, and generally, that where an arrest is made by an officer who has reasonable ground for believing that the person arrested is implicated in a crime, such officer has a right to arrest without a warrant and to search the person arrested without a search warrant. (Lynn v. People, 170 Ill. 527; North v. People, 139 id. 81; Gindrat v. People, 138 id. 103; 5 Corpus Juris, 434.) It was also contended that there was an illegal search of the premises of Grace Crosley. This is not borne out by the evidence, which is, as we have seen, that Grace Crosley called the police officers and stated that she had found money in the room into which Swift had disappeared when the officers entered her house. She also testified that neither Swift nor Morgan had rented that room but it was one of her own rooms. This does not constitute evidence of unwarranted search of the premises.”

In the case of People v. Scalisi, 324 Ill. 131, it is held:

‘“By paragraph 681 of the Criminal Code in this State an arrest may be made by an officer or by a private person without warrant for a criminal offense committed or attempted in his presence, and by an officer when a criminal offense has in fact been committed and he has reasonable ground for believing that the person to be arrested has committed it. . . . As in this State a criminal offense consists in a violation of public law, in the commission of which there shall be a union or joint operation of act and intention or criminal negligence and may be either a misdemeanor or a felony, the term ‘criminal offense’ in paragraph 681 must be held to include misdemeanors as well as felonies, and thereby the right of officers to make arrests is much greater than at common law.”

There was no plea attempting to justify the arrest by virtue of a search warrant and the declaration does not allege any cause of action based thereon. The question of the legality of the search warrant was not an issue in the case except as it might be raised by the replication of the plaintiff to defendant’s second amended plea, wherein it is averred that the defendant in error made the arrest by virtue of a defective search warrant instead of a reasonable belief that plaintiff in error had committed a crime. This question of fact was submitted to the jury upon proper instructions to which no exception has been taken.

Our attention has been called to the case of Pearson v. Zehr, 138 Ill. 48, but the principle involved in that case related to the power of the Live Stock Commissioners under the statute to perform certain acts with reference to live stock and it has no bearing on the' question here involved, which concerns the power of the sheriff to make arrests without a warrant where he has good reason to believe a criminal offense has been committed.

. No other errors have been presented to this court for review and the judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    B. L. Renfrow, Appellee, v. John M. Anthony, Appellant.
    Gen. No. 8,271.
    Opinion filed January 24, 1929.
    Robert H. Patton and B. L. Catron, for appellant.
    Carey E. Barnes and Ed. D. Henry, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the

court.

On July 9, 1927, a judgment by confession was entered in open court in favor of appellee against appellant for the sum of $790. On motion of appellant the judgment was opened up and leave granted to him to plead. The judgment was ordered to stand as security for the debt.

In the original declaration it was alleged that the defendant (appellant), on May 19, 1926, made his promissory note for the sum of $650, and delivered the same to P. B. Sullivan, doing business as The Standard Light Company, to whose order the same was payable, and that the latter indorsed said note, in writing, by which indorsement said Sullivan, doing business as The Standard Light Company, ordered the same to be paid to the plaintiff (appellee), and delivered the said note, so indorsed, to the plaintiff. After the judgment was opened up, plaintiff, by leave of court, amended the declaration by striking out the words “doing business as The Standard Light Company,” and inserting in lieu thereof the words, “under the name, style and description of Standard Light Company.”

The motion to open up the judgment and for leave to plead set out numerous reasons therefor and was sworn to. Subsequently, by leave of court, another affidavit was filed in support of said motion. The action of the court in granting the motion was excepted to by appellee and the exception preserved for review by a ■ bill of exceptions, and cross-errors have been assigned thereon. However, from our view of this case, it will be unnecessary to pass upon the cross-errors.

To the amended declaration appellant filed seven pleas, to which a demurrer was sustained to all except the first two. Appellant then, without leave, filed a notice of special defenses under the first plea. This notice was stricken from the files on motion of appellee. Appellant then filed, by leave of court, six more pleas, to which a demurrer was sustained as to all of them except the last or thirteenth plea. The case went to trial upon the amended declaration and the first, second and thirteenth pleas.

The action of the court in sustaining the demurrers to the pleas mentioned is assigned as error, but in our opinion the pleas were subject to demurrer for the reasons hereinafter stated and the court committed no error in sustaining the demurrers thereto. It is also an elementary rule of practice that questions raised by motions must be preserved for review by bills of exceptions and this includes motions in regard to pleadings. The filing of the notice of special defenses under the first plea without leave of court, after numerous other pleas had been filed, would seem to be a sufficient reason for striking the notice from the files. This question, however, was not preserved by a bill of exceptions and is not before us for review.

The first plea is that of the general issue verified. The second plea sets out that the promissory note was not indorsed or assigned by the payee therein named in manner and form as alleged in the amended declaration. This plea is also verified. The thirteenth plea avers that at the time when the said note was indorsed the title thereto of the indorser, P. B. Sullivan, if any he had, was defective under the statute, in this, that at the time of the execution of the note payable to the order of the Standard Light Company, one Surles, as agent for the Standard Light Company, took and received said note from the defendant for and in consideration of a certain agreement of the said company to install, in a good and workmanlike manner, an electric light plant in the residence and other buildings of the defendant, in accordance with the tenor and effect of a certain order therefor and of an agreement upon the back of said order executed by said Surles, as agent for said company, and that there was no other or further consideration for said note and that the payee -named therein, and in said order and agreement, thereafter wholly failed and neglected to install in a good and workmanlike manner and to complete the installation of said light plant so that the same became and was wholly useless for the purposes for which it was installed and of no value to the defendant and was left in such condition as to render it impossible for the defendant to co-operate with the seller in taking orders for light plants and earning commissions with which to discharge the cost of said plant as provided in said agreement, and that because thereof the entire consideration for said note wholly failed and the same could not be negotiated except in breach of faith, yet the defendant avers that wholly in bad faith and with the object and purpose of depriving the defendant of his defense thereto, the holder of said note, P. B. Sullivan, indorsed and delivered said note to the plaintiff, as alleged in the declaration, but the defendant denies that the plaintiff then and there became the holder in due course under the provisions of the statute of the State of Illinois and that he took the same free from the aforesaid defense of said note. Appellee joined issue on the first and second pleas and replied to the thirteenth plea: (1) that at the time he purchased the note the title thereto Was not defective; (2) that the consideration for said note had not wholly failed at the time he purchased it; (3) that he purchased said note and paid value therefor May 22, 1926, and that he had no knowledge of any defect in the title of said note or of any defense to the same and that he became the holder thereof in due course.

After the evidence was heard the trial court instructed the jury to find the issues in favor of appellee and a verdict was returned in conformity thereto.

It is first insisted that the note is void because it is made payable to a fictitious payee. That the said Standard Light Company is not a corporation, partnership or association, and that no authority is shown of P. B. Sullivan to indorse the same. The said note is indorsed as follows: ‘1 The Standard Light Co., By P. B. Sullivan. P. B. Sullivan.” The evidence shows that for over four years P. B. Sullivan had been engaged in the business of manufacturing and selling light plants at Decatur. Illinois, under the style and name of “The Standard Light Company” and under this trade name he had manufactured and sold many of said light plants. That a man may conduct his business under a trade name is well established, and in the transaction of his business he may execute and receive negotiable paper in the name under which he transacts such business. The fact that a person in the transaction of his business takes a note wherein the payee appears under the style and name by which he conducts his business does not have the effect of making such payee fictitious. The rule as stated in 8 C. J. 172, is as follows: “The real payee may be described by his business name, or by an assumed name such as that of a fictitious corporation.” To the same effect are the following: Bonner v. Gordon, 63 Ill. 443; People v. Rose, 219 Ill. 46; Graham v. Eiszner, 28 Ill. App. 269; First Nat. Bank of Litchfield v. Cox, 140 Ill. App. 98.

The evidence shows that appellee purchased the note from Sullivan before maturity at a discount of 10 per cent. The evidence further shows that appellee had purchased, at different times, a number of other notes from Sullivan, given in payment for other light plants at similar discounts. There is no evidence in the record tending to show that appellee had any knowledge that there was any failure of consideration for the note or of any fraud practiced upon appellant by Sullivan or his agent. There is no competent evidence in the record tending to show other than that appellee was a bona fide purchaser of the note for a valuable consideration, before maturity, and the trial court did not err in directing a verdict in his favor. The judgment of the circuit court is affirmed.

Affirmed.,


text:
    First National Bank of Ava, Illinois, Appellee, v. Jacob Yakey et al. A. C. Mautz, Appellant.
    Gen. No. 8,285.

      Opinion filed January 24, 1929.
    John J. Baker, for appellant.
    W. F. Ellis and George B. Rhoads, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

On May 26, 1928, the First National Bank of Ava, Illinois, appellee, procured a judgment in the sum of $1,310.76, by confession in vacation in the circuit court of Shelby county against Jacob Yakey, Rose Yakey and A. C. Mautz, the latter being the only appellant. On May 29, 1928, Mautz filed his special and limited appearance in the cause for the sole and only purpose of procuring the docketing thereof and the filing and presentation of a motion, “to open, vacate and set aside the judgment heretofore entered by the Clerk of this court in the above entitled cause, in vacation, as to this defendant, and quash the execution heretofore issued in this cause as to this defendant, and for cause of his said motion this defendant shows . . . that this defendant was not and is not a maker nor signer of said note; that this defendant did not and has not executed said note; that this defendant has not waived service of process in said cause, and has never been served with process and summons in said cause; that this defendant has not and did not execute any power of attorney authorizing any person to confess judgment on the note declared upon in this cause; . . . that the Clerk of this court was wholly without jurisdiction or authority to enter judgment against this defendant in said cause, and that said judgment as to this defendant is wholly null and void, . . . Wherefore, this defendant moves this court to open, vacate and set aside said judgment as to this defendant, and to quash the execution issue thereon as against this defendant.”

The note was an ordinary promissory nóte with the usual power of attorney to confess judgment. At the foot of the power of attorney the names Jacob Yakey and Rose Yakey were signed. On the back of the note the name of appellant, A. C. Mautz, .was signed. The declaration charges that appellant, Mautz, was one of the makers of the note. Upon a hearing of the above-mentioned motion the court entered the following order: “Upon consideration by the court that portion of defendant’s motion to vacate said judgment is denied, and that portion of said motion to open up said judgment is allowed as to defendant A. C. Mautz and said judgment against said defendant A. C. Mautz is opened up. Said judgment to stand as security and the 'execution heretofore issued herein is ordered stayed and defendant A. C. Mautz is ruled to plead by November 12, A. D. 1928.”

Prior to the adoption of the Negotiable Instrument Act in 1907, Cahill’s St. ch. 98, ¶ 21 et seq., the presumption of law was that in the absence of any words denoting a contrary intention, a name indorsed on the back of a promissory note was that of a guarantor, but this presumption, however, was not conclusive and parol evidence was admissible to prove that such signature was, in fact, signed in the capacity of a maker or indorser. In the case of Lincoln v. Hinzey, 51 Ill. 435, it was held: “It is contended, however, by appellant, that production of the note, of itself, showed Lincoln had not signed as a joint maker, and that he could not be held liable as such, his name appearing only on the back. We can not assent to this view. It is the settled law of this State, that the holder of a negotiable note, endorsed in blank, may fill up the blank with such undertaking as is consistent with the nature of the instrument and the agreement of the parties. If a note, in the hands of the payee, has upon its back the blank signature of a third person, the presumption, in the absence of proof, is, that such person endrosed as a guarantor. But the parties are at liberty to show what was their agreement, and what was the precise liability to be assumed. The mere fact that the name is upon the back of the note can not be received as conclusive proof that the person placing it there did not intend to assume the liability of a joint maker. One may become liable as joint maker without reference to the position of his signature, or whether it be found upon the face or back of the note, if it be shown, by satisfactory evidence, that the party signing did so as joint maker.” In the case of Kistner v. Peters, 223 Ill. 607, it is said: “It is undoubtedly true that one may become liable as a joint maker of a promissory note without reference to the position of his signature, whether it be found upon the face or back of the note, if it be shown by satisfactory evidence that the parties signing did so as joint makers. In other words, it is immaterial upon what part of the paper the signature of a party may appear, provided it be shown by satisfactory evidence that in signing it he did so intending to become a joint maker.” And also in the case of DeClerque v. Campbell, 231 Ill. 442, it was held: “The law of this State is well settled that the endorsement of a note in blank by a third party at the time of its execution creates a presumption that the endorser intended to assume the liability of a guarantor, though this presumption may be rebutted by parol evidence of the real agreement.”

It is the contention of appellant that the above rules of law have been abrogated by the adoption of the Negotiable Instrument Act. The sections of this statute, pertinent to this question, are:

“17. Where the language of the instrument is ambiguous, or there are omissions therein the following rules of construction apply: ... 6. Where a signature is so placed upon the instrument that it is not clear in what capacity the person making the same intended to sign, he is to be deemed an indorser.”
“63. A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is to be deemed an indorser, unless he clearly indicated by appropriate words his intention to be bound in some other capacity. ’ ’
“64. Where a person, not otherwise a party to an instrument, places thereon his signature in blank before delivery, he is liable as indorser, in accordance with the following rules: 1. If the instrument is a note or bill, payable to the order of a third person or an accepted bill, payable to the order of the drawer, he is liable to the payee and to all subsequent parties.”
“191. The person, ‘primarily’ liable on an instrument is the person who, by the terms of the instrument, is absolutely required to pay the same. All other parties are ‘secondarily’ liable.” Cahill’s St. ch. 98, ¶¶ 37, 83, 84, 214.

It is the contention of appellee that the above sections of the act have no effect other than to change the presumption of law previously existing, that the indorsement of a name in blank upon the back of a note created liability as guarantor, to that of indorser and that it may still be shown by parol evidence that a name so indorsed was intended to be, in fact, that of a maker. In so far as our research has disclosed the question here involved has never been directly passed upon by the Supreme Court of this State, however, in the case of Tucker v. Mueller, 287 Ill. 551, it was held: “It will be seen by an examination of these authorities that under similar provisions of the Negotiable Instrument act the conclusion is now settled, beyond question, by the express provisions of the act, that the person who indorses a note in blank under circumstances as here set forth is merely an indorser and is not bound in the absence of notice of dishonor. In our judgment the provisions of our Negotiable Instrument act, as enacted in 1907, must be held to have changed the rule announced in the previous decisions of this court that the liability of a person who indorsed a note in blank on the back, at or before the time of its delivery to the payee, was prima facie that of a guarantor, and we are of the opinion that in the light of these provisions of the act he must be held only to the liability of an indorser.” And the court further held: “It is generally held that inasmuch as the Negotiable Instrument act fixes the status of the signature as that of indorser, parol evidence is not admissible to show a contrary intention, although some authorities hold to the contrary. (8 Corpus Juris, 78, and cases cited.) It is, however, unnecessary to discuss the question whether or not parol evidence is admissible here, because no evidence was taken on the hearing, it being conceded in the briefs of defendant in error that if plaintiffs in error are not accomodation indorsers or guarantors they will not be bound if they were not given notice of the dishonor. ’ ’

The object of the adoption of the Negotiable Instrument Act by a number of the States of this country was not only to codify the law merchant but to establish a uniformity as to the rights and liabilities of parties to negotiable instruments. In our opinion, the intention of the legislature was to fix, by law, the status of an indorser in blank upon the back of a negotiable note as that of an indorser and that parol evidence is not admissible to change its character nor can such character be changed by alleging in the declaration that such an indorsement, was, in fact, made as a maker.

The court treated the motion made by appellant as a double or alternative motion. It is true that the motion was to open up, vacate and set aside the judgment. A motion to open up a judgment of necessity carries with it a request for leave to plead to the merits. A motion to vacate and set aside a judgment based upon the lack of jurisdiction of the court to enter the judgment does not embrace within it any such request. Both appellant and appellee in this court insist that the motion in effect was one to set aside and vacate the judgment and should be considered as such and that that was the only motion that was argued or presented to the court below. Appellant filed a limited appearance for the purpose of making the motion only, which is addressed solely to the jurisdiction of the court to which he has never submitted his person. We are disposed to adopt the same view as that of both appellant and appellee that the motion was or was intended to be to vacate and set ¿side the judgment only and that the words “open up” were inadvertently used and should be treated as mere surplusage.

Our conclusions as announced herein dispose of the cross-errors assigned by appellee. A judgment in assumpsit is an entity and where it is rendered against several persons it cannot be set aside as to one party without setting it aside as to all. The judgment of the circuit court is reversed and the cause remanded with directions to sustain the motion of appellant and to vacate and set aside the judgment entered in the circuit court.

Reversed and remanded with directions.


author: Mr. Justice Shurtleff

text:
    James J. Butler, Administrator of the Estate of Martha Parido, Deceased, Appellee, v. Illinois Traction, Inc., Appellant.
    Gen. No. 8,221.

      Opinion filed January 24, 1929.
    Sigmund Livingston, for appellant.
    Thomas S. Weldon and Costigan & Wollrab, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This suit is brought by appellee, administrator of the estate of Martha Parido, deceased, in behalf of her next of kin, to recover damages for injuries causing death.

Appellee’s intestate, on the evening of August 10, 1927, while riding as a guest in the car of her son, David Parido, in the outskirts of the City of Bloomington, was struck at the intersection of the right of way of appellant’s railway and Stillwell street by one of the electric passenger cars of appellant’s railway, and suffered injuries resulting in her death.

The declaration contained two counts, the first count charging that “by reason of the carelessness, negligence and improper conduct of the defendant by its servants, said electric car then and there ran into, struck and collided with said automobile,” etc. And the count further charges: “Said defendant, at that time and for a great length of time prior thereto, maintained at said intersection an electric signal or warning bell for the purpose of warning persons traveling along Stillwell street of the approach of cars along defendant’s tracks, and . . . defendant had negligently permitted said bell to become defective and failed to keep the same in good repair, but on the contrary, permitted it to become defective and out of repair so that it would not or did not then and there make a sufficient or reasonable alarm to warn the public traveling on said highway at or near said intersection of the approach of the defendant’s said car,” etc. And it was charged that, “through the negligence of the defendant in permitting said signal bell to be out of repair and in a defective'condition, plaintiff’s intestate did not have reasonable and proper warning of the approach of the defendant’s car and through said negligence plaintiff’s intestate was then struck by said interurban car and killed.” And it was further charged in said first count that “said defendant did not, prior to the approach of said cars, sound any warning, by whistle or otherwise, to sufficiently give said deceased a reasonable or proper warning of the approach of said car at said crossing, and that,” etc.

The second count bases negligence upon the charge that “defendant’s servants then and there drove said interurban car as it crossed Stillwell street and immediately prior thereto, at such high, dangerous and excessive rate of speed that by and through the negligence, carelessness and improper conduct of the defendant and its servants in that behalf, the said interurban car . . . struck with great force against said automobile, and the plaintiff was thereby . . . greatly bruised, crushed and wounded and as a result thereof . . . died.”

Appellant pleaded the general issué to both counts. There was a trial by jury, a verdict and judgment in behalf of appellee in the sum of $2,500 and appellant has brought the record to this court, by appeal, for review.

Stillwell street, near the western city limits of the City of Bloomington, runs north and south. At the intersection of Stillwell street and the crossing in question is the city dump. The Nickel Plate or Lake Brie and Western Railroad right of way intersects the right of way of appellant’s railroad a short distance east from the crossing where the injury occurred. The Lake Brie and Western tracks are elevated and appellant’s railroad runs through a viaduct under the Lake Erie and Western tracks.. Between 75 and 100 feet north of the interurban viaduct is another large viaduct, under the Lake Erie and Western tracks, under which Stillwell street passes. At this point, where Stillwell street goes under the viaduct, it enters Sheridan street and then Stillwell street proceeds in a northerly direction on the east side of the Lake Brie and Western right of way. The automobile in question came from the north, reached Sheridan street and made its turn, proceeding under the viaduct and then proceeding south about 100 feet to the crossing in question. At the intersection of Stillwell street and Sheridan street, where the automobile turned to proceed under the viaduct, is a large open space and in this vicinity appellant’s, tracks are in clear and unobstructed view for more than 600 feet. In fact, appellant’s track makes its turn and crosses Sheridan street between 500 and 600 feet east of the Stillwell and Sheridan street viaduct. There is not a house or-obstruction of any kind between Sheridan street and appellant’s right of way. When the embankment of the Lake Erie and Western right of way is reached, going south, there is an obstruction until one reaches 16 feet north of the crossing in question. From this point a car approaching may be seen through the viaduct. Both are very large viaducts, especially wide and afford unusual opportunity for sight through them. There is uncontradicted testimony in the record, showing from measurement that a person standing 6 or 7 feet north of appellant’s north rail can see the rails on appellant’s track through the viaduct, the direction from which appellant’s car was coming for a distance of 275 to 300 feet, and standing 12 feet north of said rail one can see the rails in the same direction for a distance of 125 to 150 feet.

There was testimony offered by appellee tending to show that the driver of the automobile stopped his car there 4 or 5 feet north of appellant’s north rail. Other witnesses testified that the ear stopped or nearly came to a stop 12 to 15 feet north of the rail and some of appellee’s witnesses testified that the occupants of the car were looking to the eastward along appellant’s track as they approached the crossing. David Parido and his wife sat in the front seat and appellee’s intestate sat alone in the rear seat. Some of the appellee’s witnesses testified that they did not hear the bell ring at the crossing at and before the injury, and other of appellee’s witnesses testified that it did not ring, while appellant produced numerous witnesses whose testimony tended to show that the bell was in good working order and that it did ring. Numerous witnesses for appellant and some of the witnesses for appellee testified that they heard the whistle of the car two blocks above, after the car left Market street, and that there were long blasts and short blasts. Some of appellee’s witnesses heard the whistle two and three blocks further away from the car than the automobile, and some of appellee’s witnesses testified that after they heard the whistle and saw the automobile start to cross the tracks they expected trouble.

Appellee produced witnesses, whom appellant claims were not competent to testify, who stated that the electric car was traveling at a speed from thirty to forty-five miles per hour. A larger number of witnesses— passengers and those disinterested — testified that the speed of the car did not exceed 18 to 25 miles per hour. There were no trains on the Lake Erie and Western railroad or other means of disturbance to interfere with sound. William Brown, a witness for appellee, was upon the dump. He heard a long whistle a few seconds before the automobile emerged from the viaduct. Brown says the automobile .was going 4, 5 or 6 miles an hour before it came to the crossing, and that it made a full stop at 4, 5 or 6 feet north of the north rail at the crossing. Other witnesses in behalf of appellant, living in the vicinity who saw the accident, testified that the automobile emerged from the viaduct and making no stop proceeded at its regular speed upon and over the crossing until it was struck. The motorman on the electric car saw the automobile when 84 feet from the crossing, reversed his power and set his brakes, but was unable to stop his car until after it had struck the automobile and traveled' about 200 feet beyond the crossing. There is no testimony in the record showing, or tending to show, within what distance such an electric car can be stopped, the weight of the car, the grade or anything upon those subjects. There were proofs offered tending to show that the rails were covered with oil and broken eggs below the point where the automobile was struck, which might have deter-red an earlier stoppage of the car. To give the proofs the most liberal and charitable intendment in behalf of appellee in this cause, it may be said that there was a sharp conflict between appellee and appellant as to all but one material issue in the case, the due care and caution on the part of appellee’s intestate at and before the time of the injury; the question whether tibe bell at the crossing was ringing and the speed of appellant’s electric car and the question of negligence on the part of appellant as to the second count. There is"' no conflict in the proofs as to the whistle of the electric car being sounded at different times during the last 600 feet it traveled before reaching the viaduct.

Appellant assigned numerous errors in its motion for a new trial, which were overruled, all of which have been assigned as error upon this appeal.

It is contended strenuously in this case that there are no proofs in the record showing that appellant was guilty of negligence. There was no law or ordinance in force at the time in question, requiring the maintenance of signal bells at the crossing. It is contended that if the electric car, by proper blasts of its whistle capable of being heard at the crossing, properly and sufficiently furnished a warning for drivers at the crossing, it is immaterial whether the signal bells were rung and whether the signaling device was in proper repair or not. The declaration charges that appellee’s intestate received no notice or warning of any kind whatever of the approach of the train, and that none was given. The testimony is overwhelming by witnesses both for appellant and appellee that the whistle of the electric car was repeatedly heard, after the car left Market street, two blocks north of the viaduct and near the viaduct, and that the blasts were heard for a distance of three blocks in a direction opposite from the crossing and the direction from which the car was coming. If the verdict and judgment in this case rested solely upon the first count in the declaration, we should have no hesitancy in holding that it was against the manifest weight of the testimony. There is no charge in the declaration of any special conditions creating special danger at the crossing in question, requiring the maintenance of signal bells, a watchman or 'gates. (Opp v. Pryor, 294 Ill. 538, 541.) Under the statute in force at the time of this injury, appellant was not required to ring the bell and sound the whistle. Chicago, B. & Q. Ry. Co. v. Sack, 129 Ill. App. 61. In Chicago, B. & Q. R. Co. v. Damerell, 81 Ill. 450, 452, the court said:

“But the statute only requires that the company shall ring the bell or sound the whistle. This is the precaution which the law has prescribed that the company shall make use of, on approaching the crossing and by ringing a bell, the company performs its statutory duty in this regard.”

As to the speed of the electric car, it is difficult to read this record and not come to the conclusion that the car was traveling at a speed not to. exceed twenty-five miles an hour. There were witnesses for appellee who testified that in their judgment the car was traveling at a speed of forty-five miles per hour. It may be that their appearance before the jury was more impressive than what they testified to in fact. There was sharp conflict in the testimony as to the speed of the car. We would not be warranted, under the second count in the declaration, in holding as a matter of law that appellant’s ear was traveling at a speed in excess of or under twenty-five miles an hour.

Appellant contends that appellee’s intestate was not in the exercise of due care for her own safety at and just before the time of the accident. As to the driver of the car the facts are more easily determined. Appellee’s testimony shows that the automobile approached the crossing at a speed of ten to twelve miles per hour and stopped, some of the witnesses state 5 to 7 feet north of the north rail, other witnesses for appellee stating 10 to 12 feet north of the rail. If the driver stopped 5 to 7 feet north of the rail he could see the rails up the track and a car coming 275 to 300 feet away. If the driver stopped his car 12 feet north of the rail his vision was clear and he could see a car and the rails 125 to 150 feet away. The testimony of appellee’s witnesses is that all of the occupants of the car were looking up the track towards the place from which the car was approaching. Both sides have amply supplied the court below and this court with photographs showing the entire situation. It is absurd to presume that the driver would start up his automobile at either distance from the north rail with an electric car in plain view 125 to 150 feet away' or 275 feet away, and yet he could have done 'so and traveled over the intersection at the rate of five miles per hour, as the witnesses testified he did do, and cleared the crossing if the electric car had been 135 feet away and traveling at the rate of forty miles per hour. It follows that the witnesses are simply mistaken or are not stating the truth. The driver, if he was looking up the track, must have seen the approaching car in ample time to .have stopped his automobile and avoided the injury. The physical situation, together with the uncontroverted testimony, demonstrates that the driver of the car was guilty of contributory negligence. The driver of the car, David Parido, was a son and-next of kin of the deceased, but it is not urged that the negligence of David Parido is a bar to recovery under the rule in Hazel v. Hoopeston-Danville Motor Bus Co., 310 Ill. 38, as David Parido was killed in the same accident. Neither is the negligence of the driver to be imputed to the deceased. But it is insisted that it was the duty of the deceased to use all reasonable and prudent means on her part to avoid the danger (Grifenhan v. Chicago Rys. Co., 299 Ill. 590; Opp v. Pryor, supra), and this she did not do.

The deceased sat in the rear seat of the automobile and her son with his wife occupied the front seat. There is some testimony tending to show that the view up the tracks was obstructed at a point 16 feet north of the north rail and the automobile or some part of it may have stopped 12 feet north of the rail. It is not clear that this court could hold on the proofs submitted, as a matter of law, that the deceased was guilty of contributory negligence.

The court gave four instructions for appellee and appellant assigns error upon the giving of each. It would prolong this opinion to too great length to take up all of the assignments of error, serve no useful purpose and is not necessary to a decision in the case.

The court gave appellee’s fourth instruction, which is as follows: “You are instructed that if you find from a preponderance of the evidence that the plaintiff’s intestate was struck and killed, by defendant’s interurban car, at a point on the defendant’s tracks where the defendant’s, servants or agents had reason to anticipate the appearance of vehicles upon the track; and if you further find from the evidence that the defendant at the time of the injury was running its cars at a rate of speed which, under the facts and cir-cumstances shown by the evidence, was careless, negligent and dangerous, and in consequence thereof struck and killed Martha Parido; and if you further find from the evidence that the said Martha Parido was -in the exercise of ordinary care for her own safety immediately before and at the time she was struck and killed, and that her death resulted in pecuniary loss to her husband and next of kin, then your verdict should be for the plaintiff.”

The giving of this instruction was error. (Chicago, B. & Q. R. Co. v. Lee, 68 Ill. 576, 582; Chicago, B. & Q. R. Co. v. Florens, 32 Ill. App. 365, 367; Wabash R. Co. v. Stewart, 87 Ill. App. 446, 453; Cox v. Chicago & N. W. Ry. Co., 92 Ill. App. 15, 20; Illinois Cent. R. Co. v. Johnson, 221 Ill. 48.)

The second count in the declaration charges negligence, based solely upon the speed of the electric car. The doctrine of the cases cited and the law upon that subject as settled by this court in Chicago, B. & Q. R. Co. v. Florens, supra, is fully set out on page 367, as follows:

“The whole case is thus narrowed down to the speed of the train and the measure of negligence that may be predicated thereon. According to the estimates of the various witnesses the speed was somewhere between eighteen and forty miles per hour. There was no legal provision regulating the rate of speed at that place.
“As was said by the Supreme Court in C., B. & Q. R. Co. v. Lee, 68 Ill. 582, ‘ There is nothing in the charter of the company nor in the general laws of the State, which imposes any restraint as to the speed its trains may run.
“ ‘Where not prohibited by municipal regulations it is apprehended the company may adopt such rate of speed as it shall deem advisable, provided always it is reasonably safe to the passengers being transported. It will be subject to no liability for the rate adopted if not otherwise at fault. ’
“To the same effect see W., St. L. & P. Ry. v. Neikirk, 13 Ill. App. 387; Same v. Same, 15 Ill. App. 172. If it be said if the train had been running at a lower rate of speed it could have been stopped in time to prevent the accident, we think the answer is that whether going at the highest or lowest estimated rate it would have been impossible to have stopped after the team was discovered to be in danger.
“In C., B. & Q. R. R. Co. v. Damerell, 81 Ill. 453, the Supreme Court remark: ‘This court has frequently asserted the doctrine that it is not the duty of the engine driver on nearing a road crossing to stop his train for the purpose of avoiding a collision with a wagon and team he may see approaching the crossing.’ Hence there would have been no duty to stop or attempt to stop until the team was seen to be going on the track and in danger, and if, when it so appeared, no possible effort would be sufficient to stop and avoid the collision, then there would be no negligence in that respect.
“We are unable to see how the rate of speed, if too great, can be regarded as the proximate cause of the accident.”

In the case at bar the conduct of the motorman in failing to stop his car is not charged as negligence, and nothing in the proofs indicates that it would have been possible for the motorman to stop the car to avoid injury. But it is contended by appellee that the instruction in question differs from the instruction in Wabash R. Co. v. Stewart, supra, by adding to the instruction in this case the language, “which, under the facts and circumstances shown by the evidence, was careless, negligent and dangerous.” To what .facts and circumstances does appellee’s counsel refer to be taken in connection with the rate of speed to constitute negligence? No such facts and circumstances are set out in the declaration and therein lies the vice of the instruction, that the jury are permitted to roam at will among the facts and circumstances in this case and determine at will what facts and circumstances in connection with speed constituted negligence and what facts and circumstances in connection with speed did not constitute negligence. The giving of the instruction by the court warranted the jury in believing that certain facts and circumstances proven, in connection with speed, would warrant a finding of negligence on the part of appellant, when the issues as to the existence of such facts have never been passed upon by the jury, but, by the giving of the instruction, are assumed by the court. As the court said in Illinois Cent. R. Co. v. Johnson, supra, page 48: “But it was the exclusive province of the jury to determine those facts, and they should have been submitted to the jury for determination without any intimation or assumption as to the proper conclusion. In the case of Chicago & Northwestern Railway Co. v. Moranda, 108 Ill. 576, the court said: ‘Where there is evidence before a jury upon which it is legally admissible, there may be difference of opinion, it is error to allow any opinion of judge or court to be obtruded upon, the jurors to influence their determination.’ Wliere the evidentiary facts will justify different conclusions, the question of negligence is one of fact, and instructions should always be drawn so as to state the law upon a supposed or hypothetical state of facts, leaving the jury to find the fact. Instructions assuming the existence of any material fact have always been condemned.”

The facts and circumstances upon which appellee expected to predicate negligence should have been set out in the declaration. (Illinois Cent. R. Co. v. Johnson, supra; Wabash R. Co. v. Stewart, supra; Chicago, B. & Q. R. Co. v. Lee, supra.) The instruction contained the further clause: “at a point on the defendant’s tracks where the defendant’s servants or agents had reason to anticipate the appearance of vehicles upon the track,” etc. Under the proofs the crossing in question was on the outskirts of the city where there were large open spaces, unoccupied by buildings of any kind, and the clause in question could as well be applied to any highway or street crossed by railroad tracks for the reason that the very existence of a highway or street warrants one in anticipating that vehicles and motor cars will appear thereon. . This part of the instruction could only tend to confuse the jury.

Appellee further urges that his instruction number four is based upon Order No. 123 of the Illinois Commerce Commission, dated June 22,1927. No such order is referred to in the pleadings or furnished in the proofs. Courts will not take judicial notice of orders entered by the Commerce Commission. (Pennsylvania Co. v. A. F. Cook & Co., 185 Ill. App. 257, 261; Warren v. Cleveland, C., C. & St. L. Ry. Co., 156 Ill. App. 111.)

A city ordinance concerning the operation of railroads, when relied upon as material to an action, must be specially pleaded and offered in evidence. The court will not take judicial notice thereof. (City of Chicago v. Municipal Engineering & Contracting Co., 292 Ill. 614.)

Appellant assigned error upon the modification and refusal by the court to give certain instructions for appellant." Some of the instructions should have been given. Other errors are assigned, but we presume upon another trial that any errors that occurred upon the former trial will be avoided.

The judgment of the circuit court of McLean county . is reversed and the cause remanded for another trial.

Reversed and remanded.


text:
    Illinois National Bank of Springfield, Appellee, v. United States Fidelity & Guaranty Company, Appellant.
    Gen. No. 8,254.

      Opinion filed January 24, 1929.

      Johnson & Pefferle, for appellant.
    Brown, Hay & Stephens and Walter T. Day, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is an action of assumpsit brought by the appellee against appellant to recover on two policies of burglary insurance, one in the amount of $12,500 and one in the amount of $1,000, issued by the appellant to William V. Sutton on a stock of jewelry, watches and diamonds, the major part of which, it was claimed, had been taken and carried away by burglars on the night of October 23, 1926.

Appellant filed a plea of the general issue, an affidavit of merits and a notice of special' defenses under the general issue. The notice of special defenses set out that Sutton did not file a proof of loss showing that he held any goods, wares or merchandise in trust or on commission, or which had been sold but not removed or for which said Sutton was liable to the owner thereof, and that Sutton was not the owner of the goods stolen; second, that Sutton did not keep a correct set of books to show the amount of the loss, if any, which he sustained; and third, that appellee was not a bona fide assignee of the account, but that the assignment was made as further security of a pre-existing debt.

. Issue was joined on the pleadings and the case was tried by a jury and there was a verdict and judgment for appellee in the sum of .$13,953.50, and appellant has appealed.

Appellant has assigned error on the court overruling its motion for a new trial. The motion for a new trial was based upon errors assigned as set out in appellant’s notice of defenses and upon further grounds which we shall notice. ’

The material provisions of the $12,500 policy are as follows:

“UNITED STATES FIDELITY AND GUARANTY COMPANY,
Baltimore, Maryland

herein called the Company, does hereby agree with the assured, named and described as such in Item I of the declaration forming part hereof, as respects any of the assured’s property as hereinafter defined and stated in Item VIII of the declaration, to be insured hereunder :

“Indemnity for loss. — I. To indemnify the assured for all loss by burglary of any of such property from within that part of any safe or vault to which the insurance under this policy applies.
“Definitions A. It is agreed that the assured’s property consisting of: (1) ‘Merchandise’ includes only the merchandise described in Item Five of the declarations owned by the assured or held by him in trust or on commission or sold but not removed, or for which the assured is liable to the owner thereof for such loss or damage as is covered hereby.”

Item 5 of the declaration referred to was as follows:

“Item 5. The merchandise covered hereby is jewelry, watches and diamonds.”

Item 8 referred to is as follows:

“Item 8. The insurance granted by this policy, including $12,500 for such damage to property as is covered hereby, shall apply specifically as follows:
“Amount of Insurance
“(b).In Safe No. 1 outside or inside of any chest on compartment therein, on money and securities, $500.00; on merchandise described in Item 5, $12,000.00: total $12,500.00,
“Exclusions
“ (e) The Company shall not be liable for loss or damage: . . . (3) unless books and accounts are kept by the assured and are kept in such manner that the company can accurately determine therefrom the amount of loss or damage.”

The smaller policy of $1,000 contained similar provisions :

The two policies of insurance were issued by appellant to Sutton in November of 1924, through the firm of Beisch, Morgan & Beisch, general agents of appellant.

As bearing on the meaning of this language of the policy, the proof showed that William N. Sutton, who was a diamond jeweler in room 302, Beisch Building, in Springfield, Illinois, had previously carried insurance on his stock through the firm of Beisch, Morgan & Beisch. One of the partners, Harry T. Morgan, suggested to Sutton that he change from the company in which he then carried burglary insurance to appellant. Mr. Sutton told him that he would have to see what Mrs. Sutton had to say about it. Later Mr. Morgan called again and Sutton advised him that it was all right. Morgan then sent an insurance solicitor, Larry Head, to complete the details. Sutton had been doing business under the trade name of William N. Sutton Company. Head inquired who was the company and Sutton told him that there was no company, but that it was just a trade name; that Mrs. Sutton and he had been associated together all through the business; and Sutton further said that he did not know whether “you would call it a company or what you would call it.” Head then inquired how Sutton wanted the policy made up, and Sutton replied that he did not know whether it made any difference. The policy was then made up in the office of Beisch, Morgan & Beisch, and brought down to Sutton complete. The declarations appearing in the policies, it was claimed, were never presented to Sutton, nor did he make the replies appearing therein to the questions therein set out, nor were the declarations ever presented to Sutton for his signature, according to his testimony.

On Saturday, October 23, 1926, Sutton left his place of business a little after 2 o’clock in the afternoon. Before leaving he placed all the merchandise of value in the safe and locked the door by means of the combination. There were a few articles of no great value left in a showcase. As Sutton left he locked the outer door leading into the corridor of the third floor of the Reisch building.

About 9 a. m. on the next day, Sunday, October 24, 1926, John Green, a fireman who was employed at the Reisch building, and Mary Reddich, discovered that the glass in the transom over the door into Sutton’s office had been broken and the transom bent down on the inside. They attempted to open the door but found that it could be moved but a little way. Upon looking into the room they saw that the safe had been blown and immediately called the police and Mr. Sutton.

On arriving at his place of business, Sutton found that the doors of the safe had been blown off by nitroglycerine and that all of the jewelry and merchandise which he had placed in his safe the afternoon before had been stolen. The explosion blew the dial of the combination off the safe, driving it through the showcase and against the steel door upon the opposite side of the room with such force that it made a dent in the door. Everything in the safe had been pulled out and strewn about the room. The trays in which Mr. Sutton kept his rings were piled in front of the safe and were empty. Papers and empty watch cases were scattered about in front of the safe. The explosion was of such force that it tore the outer door of the safe apart and scattered the cement packing about the room. A clock upon the showcase was stopped by the concussion at about 11 o’clock, indicating that the burglary had taken place at about that time the night before. Wires had been run from a light fixture in an adjoining room to the safe, and had apparently been used to detonate the nitroglycerine.

On the Sunday morning on which the loss was discovered, Wetzel, the adjuster of appellant, had some photographs made of the office. These photographs, properly identified, were received in evidence.

In the safe at the time Sutton left his office on October 23, according to the testimony, was a large stock of jewelry, consisting largely of mounted rings, diamond stickpins and brooches, loose diamonds, watches, cuff links and other articles. Sutton testified that the value of the. merchandise in his safe at this time was around ^40,000. , W. A, Grill and Maurice Singer, jewelry salesmen from St. Louis, who visited Sutton on the afternoon of October 23, 1928, in order to sell him merchandise, testified that Sutton, in order to convince them that he did not need any merchandise, showed them about three-fourths of his stock of goods, and that the wholesale value of the mounted rings and loose diamonds which they saw at that time was between $35,000 and $45,000.

All of the diamonds, mounted and loose, and the stickpins and brooches were taken, and on the morning after the burglary there remained only a few American watches, some cuff buttons and minor articles.

The burglars also took between $50 and $60 in cash, a check for $525; rare old coins of the face value of $100, upon which there was a premium in excess of ■their face value; jewelry belonging to Mrs. Sutton which had been placed there for safe-keeping, of the value of between $10,000 and $12,000; a four-carat diamond valued at $2,000, upon which Sutton had loaned $1,200; a ring valued at $100, upon which Sutton had loaned $50; a ruby ring valued at $125, upon which Sutton had loaned $40, and certain property consisting of two diamond rings, a watch and charm upon which Sutton had a claim for work in the amount of $42.50 and which he was keeping for the owner. With the exception of a small brooch or pin valued at $15, none of the property was ever recovered. It was claimed that the property stolen consisted of between seven or eight hundred different articles, at least three hundred of which had a value of $50 each.

Following the burglary, 'Sutton, at the request of Wetzel, adjuster for the appellant, delivered to the latter all of his books, papers and records. From these records Wetzel, assisted by Detective Graham of the Pinkerton Detective Agency, made up a proof of loss.

Thereafter Sutton was called to- Wetzel’s office and handed a loose piece of paper which was identified as page 2 of the proof of loss.' The white typewritten sheets now appearing in appellee’s Exhibit 4 were not attached to the outer green sheet at this time. Wetzel told Sutton that he had been called out of town and was leaving. He was in a hurry and said to Sutton, “There is the proof of loss. Just sign it here,” indicating the place for signature. Sutton did not have a chance to read what he had signed because Wetzel was in such a hurry. Sutton was told that Wetzel would send the proof of loss in to the company. The only part of the proof of loss that Sutton saw upon that occasion was the page upon which appeared his signature, according to Sutton’s testimony.

The evidence disclosed that Sutton kept the following books and records in his business:

1. An inventory book in which appeared a complete inventory of Sutton’s stock of goods, which inventory was completed on November 29, 1925.

This inventory showed Sutton’s stock at that time to consist of mounted rings, diamond brooches, stickpins, watches, loose diamonds, cuff links and other minor articles of the value of $37,931.48.

2. A number of invoices showing the purchases of merchandise made by Sutton between the date of the November inventory and the date of the burglary.

3. A mounted ring record containing a record of each of the mounted rings in Sutton’s stock, with the number of the ring, the weight and description of the mounting, the cost of the article and its selling price. "If the ring had been sold the book also showed the name of the buyer and the date of the sale.

4. A sales record, in which was kept a record of all sales of all merchandise made by Sutton, giving the names of the persons to whom articles were sold, the date of the sale and the selling price. This book was kept for two reasons, according to the testimony: (a) for Sutton’s own records and (b) for determining the excise taxes assessed against Sutton by the federal government.

5. A further record of the loose diamonds was contained on the outside of the original importer’s paper packages in which the loose diamonds were kept. The original papers were taken by the burglars, but similar papers, showing the manner of keeping such records, were introduced in evidence. This record, on the outside of the papers, disclosed the importer’s number and the number and total weight of the stones in each paper. After a stone was taken from a paper its weight was noted and that figure was subtracted from the weight appearing on the paper, which thereafter showed the weight of the stones remaining in the package. The notation of the number of stones in the paper was also changed according to the number of the stones removed.

Various assignments of error are made touching the weight of the evidence to which we shall give no consideration. The proofs amply established the burglary.

Appellant contends that the judgment should be reversed because the policy of insurance covered goods owned by Sutton and the declaration charged ownership of the merchandise by Sutton, while the proofs showed that Sutton was not the sole and unconditional owner of the property. It is shown by the undisputed testimony in this case that appellant’s agents, while carrying burglary insurance for Sutton in another company, and presumably a valid policy, solicited Sutton to transfer the insurance to appellant company, and” were fully ififormed by Sutton as to all the particulars and details of Mrs. Sutton’s interest in the property. It is not shown to be a joint interest. But whatever the interest was, it was left to appellant’s agents to write a policy for Sutton on the property he had in charge or as trustee to protect him from burglary. Such a policy was written. So far as the proofs go, it is not shown that Mr. Sutton was other than a trustee as to any interest his wife had in the property. The policy does specifically purport to insure Sutton from burglary of property held by him as trustee. Taking the testimony altogether, the only conclusion that we can reach is that Sutton was trustee of his wife’s property. The policy provided for just such a case: “property owned by the assured or held by him in trust or on commission,” and this construction is accentuated by another provision in the policy by which appellant “reserved the right to adjust such loss or damage with the owner or owners of such merchandise, and payment of such loss or damage to such owner or owners shall constitute a full satisfaction of any claim hereunder made by the assured for.snch loss or damage.”

We are satisfied that suit was properly brought in the name of Sutton’s assignee. If it were not so, in this case appellant would be estopped from claiming the policy void under the rule laid down in Lycoming Fire Ins. Co. v. Jackson, 83 Ill. 302; Mazeika v. Automobile Underwriters of America, 226 Ill. App. 239, and the facts proven in this case.

It is further contended that Sutton did not keep such a set of books as was contemplated by the policy of insurance, and that it could not be determined from his books what property and how much was burglarized. The books and all the records, together with all documents and papers, were submitted to the jury, under proper instructions, for them to determine whether, from an inventory showing purchases and sales, such a record had been kept that by checking the loss in articles and specific merchandise could be determined. We do not understand by the rule that the books must be perfect, free from any clerical or punctuation errors, but in any set of books submitted it might be found that a certain error in substance, the overlooking of an item, the disjointing of a balance or the slanting of a column had slipped in. The question would be, how substantial the error, the motive or lack of motive with which it was made, and to what extent the error had affected the parties’ rights. A set of books might be submitted containing one or more specific errors in addition or subtraction and bound in gold or tied with safety pins.and still be an honest set of books and determine a substantially correct result. There has been little in standardization as to the size and form and number of leaves in a volume and binding to the commercial form of books in the first 139 years of our history. The system has ranged from a few chalk marks on a beam to a large number of finely bound, large and small volumes playing hide and seek with each other and containing little but Arabic numer: ais and a few shorthand notes from which or by which large sums disappear or move quietly through long periods of time. All of this led the courts to say as the court said in Beaird v. New Jersey Plate Glass Co., 157 Ill. App. 1, in an identically similar case:

“It appears that appellee and his partner kept a little book showing the amount of money received from the gambling room . . . and also a sheet of paper, upon which was marked down the amount of the saloon receipts for each day, which was placed in an envelope, both of which appear to have been in the safe and were lost at the time the money was taken. While the manner of keeping the accounts was rather crude and informal, yet if the statements contained therein were accurate, they would show the amounts actually in the safe, and from them the loss might be correctly determined. We would not therefore feel justified in holding that there was such a failure to comply with that requirement of the policy as to justify us in setting aside the judgment on that account.”

In Liverpool & London & Globe Ins. Co. v. Kearney, 180 U. S. 132 (45 L. Ed. 460), in a similar case the court said:

“The assured under this policy hereby covenants and agrees to keep a set of books, showing a complete record of business transacted, including all purchases and sales, both for cash and credit, together with the last inventory of said business . . . and, in case of loss ... to produce such books and inventory; and in the event of failure to produce the same, this policy shall be deemed null and void. ’ ’
“The covenant and agreement ‘to keep a set of books showing a complete record of business transacted, including all purchases and sales, both for cash and credit, together with the last inventory of said business,’ should not be interpreted to mean such books as would be kept by an expert bookkeeper or accountant in a large business house in a great city. That provision is satisfied if the books kept were such as would fairly show, to a man of ordinary intelligence, ‘all purchases and sales, both for cash and credit.’ There is no reason to suppose that the books of the plaintiff did not meet such a requirement.”
“We are of opinion that the failure to produce the books and inventory, referred to in the policy, means the failure to produce them if they are in existence when called for, or if they have been lost or destroyed by the fault, negligence or design of the insured. Under any other interpretation of the policies, the assured could not recover if the books and inventory had been stolen, or if they had been destroyed in some other manner than by fire.”

There were some errors or an error in Sutton’s books. One ring sold to appellant’s agent had not been recorded on the ring book. But it was fully explained and shown that the failure to record made no change whatever in the figures of Sutton’s stock on hand. The record of the diamonds imported had been stolen with the goods and could not be furnished, but other proofs were submitted as to their existence and that they formed a part of Sutton’s stock. The opinion of this court is that the proofs submitted are sufficient to show that Sutton complied with the provisions of the policy and the proofs of value are ample to support the verdict.

There is an assignment of error that Sutton never made a proof of loss, that is, we take it to mean a correct proof of loss. Appellant complains that the proof of loss made shows that Sutton was the owner of the goods stolen except three certain rings, and does not show that Sutton held any goods in trust for his wife. Appellant, through Wetzel, its agent, and a detective undertook to prepare and did make Sutton’s proof of loss. At that time Mrs. Sutton’s diamonds and jewelry were talked over. Wetzel testified that he stated to Sutton then that Mrs. Sutton’s articles were not covered by the policy and could not be paid for. He further testified that Sutton, never told him that Mrs. Sutton owned any part of the merchandise. He did not testify, however, but that Sutton told him that his ivife was interested in the goods. If -appellant and its agents prepared the proofs of loss and had all of the facts before them, they cannot be heard to say that the proofs of loss are technically incorrect. Appellant cannot be prejudiced by this error, if it is such, as appellant has paid Mrs. Sutton nothing for her loss and appellee in this suit holds an assignment of all of her claim. Appellant does not argue the assignment that appellee was not a bona fide asignee of the claims.

Appellant complains because the court sustained an objection to counsel’s cross-question to Sutton: Why the firm of Whitney and Klaholt did not give him a report on his books? The court properly sustained the objection.

Appellant assigns error upon the giving of certain instructions for appellee. We- have examined these instructions and find no reversible error in the instructions as given. If Sutton was trustee for his wife, had her money in the business or was using her property (in just what manner is not made plain by the proofs in this case), then under the terms of the policy Sutton had the right to sue for and recover in this suit the value of his wife’s interest in said goods. Sutton then had an insurable interest in the goods.

The court refused certain instructions for appellant. We have examined these instructions and are of the opinion that the court’s refusal to give them would not warrant us in reversing the judgment in this case.

Appellant complains that the court refused to admit in evidence a certain debtor’s schedule.that Sutton had filed in court in 1922 and a tax schedule that Sutton’s wife filed with the county treasurer in 1926. Certainly there was no foundation laid for the offer of the latter instrument and no proofs in the record covering Sutton’s property in 1922. We are unable to find any index to these instruments in the abstract or the record and doubtless counsel considered them of so little value that they were not included in the record.

Finding no reversible error in the record of this cause, the judgment of the circuit court of Sangamon county is affirmed. ■

’Affirmed.