text:
    Eva P. Igney, Appellant, v. Oscar C. Igney, Appellee.
    Gen. No. 40,832.

      Heard in the third division of this court for the first district at the December term, 1939.
    Opinion filed February 14, 1940.
    Rehearing denied March 12, 1940.
    Edward J. McCarthy, of Chicago, for appellant.

      Charles E. Schiller, of Chicago, for appellee; James E. McGrath, of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

On October 17, 1903, the parties were married. On January 29, 1929, plaintiff filed her bill for divorce in the superior court of Cook county. Among other things, she alleged that she was the sole owner of a business then being conducted by the defendant under the name and style of Estelle Dress Company. He filed an answer and a cross-bill. On January 9, 1936, the court entered a decree which found the defendant guilty of extreme and repeated cruelty, and dismissed his cross-bill. The decree also found that plaintiff had no interest whatsoever in the business being conducted by defendant. The decree ordered defendant to pay plaintiff $2,000 to enable her to pay her debts, $1,950 for her solicitors’ fees, $800 for expenses incurred by her in procuring an audit of his accounts, and $155 then due for temporary alimony, or a total sum of $4,905. These amounts were paid by defendant in the form of checks on the date the decree was entered. The first item of $2,000 was paid to plaintiff by two checks, one for $1,680, and the other for $320. The decree further directed defendant to pay to plaintiff as alimony, $100 per month, the first payment to be made as of January 1,1936. In compliance with the decree, the defendant paid plaintiff by check $100 on 'the date the decree was entered, which covered alimony for January, 1936. On February 3, 1936, he paid her, by check, $100, to cover that month. These checks were accepted by plaintiff. On March 3, 1936, and again on April 9, 1936, defendant tendered to plaintiff, through her attorney, a check for $100 for current alimony. The tender was refused. On May 5, 1936, plaintiff filed a notice of appeal from the decree, and on May 6, 1936, filed a “short record” in this court. No further record was filed, and on July 8,1936, the appeal was dismissed for want of prosecution. On motion of plaintiff, the order dismissing the appeal was vacated and the cause reinstated. Plaintiff was granted several extensions of time to file abstracts and briefs. On December 2, 1936, plaintiff filed a motion for further time to file abstracts and briefs, which was denied, and on January 6,1937, plaintiff moved the court to strike the cause from the docket, or to dismiss the appeal. No abstracts or briefs were filed and on January 8, 1937, the appeal was dismissed. On January 9, 1937, plaintiff filed in this court a petition for leave to appeal from the divorce decree. The petition was denied on February 16, 1937, On December 14, 1937, she filed in the superior court of Cook county a petition entitled, “Action to restore lost document and to review decree. ” On February 25, 1938, on motion of defendant the petition was stricken and dismissed for want of equity. From this order plaintiff perfected an appeal, which was later abandoned. In 1937 defendant was sued jointly with plaintiff for $200 owed by plaintiff for rent. The action was dismissed as to defendant, but judgment was entered against plaintiff and subsequently defendant was summoned as garnishee and judgment entered against him for $200, which he paid. On August 3, 1938, she filed a petition in the superior court of Cook county, which averred that there was then due as arrears in alimony the sum of $2,900; that although ‘ ‘ amply able to pay the same, ’ ’ he repeatedly refused and neglected to do so, and she prayed that a rule be entered against him to show cause why he should not be punished for contempt. A rule was entered against him. He filed a verified answer and also a cross-petition. In the cross-petition he asked that the alimony be reduced. She answered the cross-petition. The matter was referred to a master in chancery, who found that the certified check for $1,680 which was delivered to her on January 9, 1936, was not presented • for payment by her until about June 22,1938; that the two checks, each for $100, delivered to her in January and February, 1936, representing alimony for those months, were not presented for payment until about June 22, 1938; and that although she had accepted the benefits of the decree, she commenced a series of useless, harassing, embarrassing and vexatious actions against defendant. The master also found that the' amounts expended in defening the “harassing and frivolous actions” brought by the plaintiff subsequent to the decree were as follows:

First Appeal

Appearance fee $ 10.00

Attorneys’ fees 500.00

Petition for leave to appeal

Appearance fee $ 10.00

Attorneys’ fees 250.00

Bill of review

Appearance fee 5.00

Attorneys’ fees 300.00

Notice of Appeal

Attorneys’ fees 100.00

Gfarnishment judgment 200.00

Attorneys ’ fees 125.00

Total $1,500.00

In connection with the rule to show cause why defendant should not be held in contempt for failure to pay alimony, the master found that the bank checks were tendered to the attorneys for plaintiff by defendant’s attorneys in payment of alimony for the months of March and April, 1936; that the tender was refused in each instance because of her insistence on appealing; that defendant thereafter made no further tenders of monthly alimony checks; that the complainant held the check which she received for her own use and benefit under the decree, and the January and February 1936 checks, for a period of almost two and one-half years before she presented them for payment; that the fact that she held the checks in her possession without attempting to cash them, substantiates the testimony in behalf of defendant concerning her refusal to accept the checks for the March and April, 1936 alimony, and the testimony that no demands were made by complainant for her alimony payments. The master found that the actions of plaintiff estopped her from claiming that he was guilty of wilful contempt, and that the aggregate amount of alimony in arrears as of December 1,1938, was $3,400. He recommended, and the parties agreed, that defendant was entitled to a credit of $200 on account of the judgment which he paid. He also recommended that the sum of $1,500 which had been expended by him in defending what he termed the harassing and frivolous actions, be credited on the amount of past due alimony. The master found that at the time of his report plaintiff was 54 years of age and in poor health, and that defendant was 60 years of age; that since the date of the entry of the decree the financial situation of the defendant had materially changed; that he was operating the business of making burial gowns under the name and style of Estelle Dress Company; that the defendant testified that because of the time he spent in and about the actions taken against him by plaintiff, for the defense of which it frequently became necessary for him to come in off the road to counsel with his attorneys, and the worry caused him, his business suffered greatly; that he was able to draw only $120 per month; that at the time the decree was entered he was earning $350 per month; that he cannot withdraw a greater amount than $120 per month from the business; that in addition, he draws $20 per month in operating and maintaining his automobile, which he uses from coast to coast in selling his merchandise; that this amount is inadequate and that he was compelled to overdraw to the extent of $240 for the year 1938; that in order to save and keep his business in operation he frequently sleeps in his automobile at night instead of using hotels; that in addition to the business, defendant owns a farm in Indiana, which produces little, if any, income, the value of which farm is about $7,000; that he has no other property or assets, except a bank account of about $240; that plaintiff testified that she is in debt, and that with the exception of some stocks which she states are worthless, is destitute. The master recommended that the decree be modified so as to provide that the defendant pay the sum of $40 per month as permanent alimony, the first payment to commence as of December 1, 1938, and that he pay the further sum of $20 per month to apply on account of past due alimony, and that defendant paj^ the court reporter and the master for the fees and costs of the hearing on the petition and cross-petition. Plaintiff filed objections to the report, which were overruled by the master, and allowed to stand as exceptions. Defendant did not file any objections or exceptions. After the report was filed, plaintiff was permitted to file the depositions of Fred H. Bodgers and Harry A. Heavilon, taken on her behalf, at Clinton county, Indiana. Bodgers, who had been the sheriff and deputy sheriff of the county, deposed that he was acquainted with the farm known as the Igney farm, which consisted of 95 acres; that the fair and reasonable market value was $130 an acre, and that in his opinion the fair and reasonable market value as a whole was $12,350. Heavilon deposed that he resided two and one-half miles from Frankfort, Clinton county, Indiana; that he was in the farm management, mortgage loan and real estate business, with an office in Frankfort, Indiana; that he frequently made loans and appraised real estate; that he was acquainted with the land known as the Igney farm, located 7 miles south of Frankfort; that the fair and reasonable market value of the farm land was $130 an acre, and that the fair and reasonable market value of the farm as a whole was $12,350.

On January 25, 1939, the court sustained the exception of plaintiff as to that part of the report which recommended that defendant be credited with the sum of $1,500 which he expended defending the “harassing and frivolous actions” of plaintiff. In all other respects the report was approved and confirmed. The court found that the defendant did not wilfully fail to pay the alimony ordered to be paid under the decree entered January 9, 1936, and discharged the rule to show cause. The court further found that since the entry of the decree there remained unpaid the sum of $3,400; that defendant was entitled to a credit of $200 because of the judgment which he paid, leaving a balance of $3,200 owing by him up to and including November 30, 1938; that defendant was without means to pay the $3,200; and that since the entry of the decree defendant’s income had been reduced to approximately $120 per month. The court then directed that the decree of January 9, 1936, be modified so as to provide that defendant pay to the complainant the sum of $40 per month, in advance, commencing as of December 1, 1938, and that in addition he pay $20 per month to apply on the unpaid balance of $3,200, such instalments also to commence as of December 1, 1938, and continue until the sum of $3,200 is paid in full. From the decree entered on January 25, 1939, this appeal is prosecuted. Defendant served and filed notice of cross appeal, grounded on the action of the chancellor in sustaining the exception to the recommendation of the master that defendant be credited with $1,500 because of the actions of plaintiff in prosecuting a series of “useless, harassing and frivolous proceedings.”

The first criticism leveled at the decree is that the court committed error in discharging the rule to show cause. The court has the power to imprison a person for nonpayment of alimony where his failure to pay amounts to a wilful and contumacious refusal to obey the order. Where the chancellor, as in the instant case, discharges the rule to show cause, this court will not interfere, unless there was a clear abuse of the court’s discretion. An examination of the record convinces us that the court was right in deciding that the defendant was not guilty of a wilful and contumacious refusal to obey the decree. It is true that defendant did not file an exception to the finding of the master that defendant owned a farm in Indiana. The master found that the farm produced “little income, if any.” Plaintiff did not file an exception to the latter finding. She held checks for considerable sums of money for a long period of time without presenting them for payment. At the same time she did not prosecute her appeal with any show of diligence, and refused the tender of the monthly payments after the first two months. We agree with the chancellor that the evidence falls short of establishing a wilful and contumacious disobedience of the decree.

As a second point, plaintiff insists that the chancellor erred in decreeing that the unpaid balance of $3,200 be paid at the rate of $20 per month. The law is that past due alimony is a vested right and cannot be affected by subsequent modification of the decree. It is clear, therefore, that plaintiff had a right to a judgment for $3,200 up to and including November 30,1938. We are aware that it is a common practice to continue a rule to show cause from time to time and thereby give the respondent an opportunity to make up arrears in payments. However, in the instant case the court discharged the rule. Should plaintiff desire to have a judgment entered for the $3,200, she would then be in a position to take steps to enforce collection of the judgment. The order of the court seriously limits plaintiff’s right to a judgment in the usual form. We are of the opinion that the provision altering the decree so as to require defendant to pay the past due sum of $3,200 at the rate of $20 per month, is erroneous.

Finally, plaintiff argues that the record does not support the action of the court in modifying the decree so as to provide that commencing with December 1, 1938, the alimony payments be reduced to $40 per month. Section 19, ch. 40, Ill. Rev. Stat. 1939 (section 18 of the Divorce Act) [Jones Ill. Stats. Ann. 109.186] provides that the court may on application from time to time make such alterations in the allowance of alimony and maintenance as shall appear reasonable and proper. After a divorce is granted, the question of alimony is at all times open for adjustment by the court in accordance with the equities which may be made to appear upon the motion of either party, and alimony may, on proper showing, be increased or diminished. The court has the power, for causes accruing subsequent to the divorce, to modify the allowance of alimony to meet the changed conditions of the parties. It is not necessary to make a reservation in the decree and the power to modify may be exercised whether reserved in the decree or not. The modification of alimony lies in the sound discretion of the court. The basis for the modification in the instant case is that defendant’s earning power had decreased to a marked degree. The court found that his income at the time the decree was entered was $350 per month, and that his income at the time he filed his cross-petition was $120 per month. The court also found that there was little income, if any, from the farm, and there was no exception to that finding. We are of the opinion that the chancellor, in modifying the decree by reducing the payments of alimony commencing with December 1, 1938, from $100 to $40 per month, was supported by the record, and that there was no abuse of discretion.

In the cross appeal filed by defendant, he urges that the chancellor should have followed the recommendation of the master and allowed a credit of $1,500 because of the “harassing and frivolous proceeding's” plaintiff instituted and prosecuted against him after the decree of divorce was entered, and after she had accepted the benefits thereof. Generally, costs” and attorneys’ fees are not charged against the unsuccessful party unless there is statutory warrant therefor. Section 41 of the Civil Practice Act (sec. 41, ch. 110, par. 165, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.041]) provides that: “Allegations and denials, made without reasonable cause and not in good faith, and found to be untrue, shall subject the party pleading the same to the payment of such reasonable expenses, to be summarily taxed by the court at the trial, as may have been actually incurred by the other party, by reason of such untrue pleading.” The record before us does not show that the chancellor was asked to act under section 41. Section 87 of the Civil Practice Act (sec. 87, par. 211, ch. 110, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.087]) provides that: “When any appeal is dismissed or any judgment, decree or order is affirmed for want of prosecution, the reviewing court shall enter judgment against the appellant, for not less than fifty dollars damages and for not more than ten per cent of the amount recovered below when such percentage exceeds fifty dollars.” The appeal from the original divorce decree was ultimately dismissed on motion of the appellant. The record does not show that any judgment was entered against her, or that there was any request to enter such judgment based on section 87. We are of the opinion that the chancellor was right in sustaining the exception to that part of the master’s report which recommended that the defendant be credited with the sum of $1,500 as expenses which he incurred in defending the so-called “useless, harassing and frivolous proceedings” instituted and prosecuted against him after the decree was entered.

For the reasons stated, the decree of the superior court of Cook county is reversed in part and the cause remanded with directions to the chancellor to eliminate from the decree the clause which provides that the amount of $3,200 in arrears shall be paid in instalments of $20 per month. In all other respects, the decree is affirmed.

Reversed in part and remanded with directions.

Denis E. Sullivan, P. J., and Hebel, J., concur.


source: Caselaw Access Project

author: Mr. Justice Burke

license: Public Domain

text:
    Robert Paul O’Neal, Appellee, v. Michael A. Caffarello, Appellant.
    Gen. No. 40,886.

      Heard in the third division of this court for the first district at the October term, 1939.
    Opinion filed February 14, 1940.
    Rehearing denied March 12, 1940.
    Ekern & Meyers, of Chicago, for appellant; Donald L. Thompson and Vernon A. Forsberg, both of Chicago, of counsel.
    Augustine J. Bowe and William J. Bowe, both of Chicago, for appellee; John D. Casey, of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

In September, 1937, plaintiff was employed by the American Air Lines at the Chicago Municipal Airport. He was supervisor of engine, propeller and accessory overhauling on the large planes that fly from coast to coast, and approximately 56 men worked under him. He also possessed a transport pilot’s license, which was issued by the department of commerce in August, 1935. He had not been in an accident of any description, had good eyesight and did not wear glasses. Defendant was the owner of the controlling stock in an airplane corporation and in another corporation which operated airport cars. The parties occupied adjoining hangars at the airport. Plaintiff frequently performed motor work on airplanes for defendant. Defendant has been a licensed pilot for 15 years. The parties were friends. Defendant, accompanied by Ralph Caffarello, his brother, and plaintiff, as his guest, left Chicago between 3 and 4 o’clock on a Monday morning in September, 1937, in a new 1937 Packard, 8 cylinder, 5-passenger car, driven by defendant. The car was in good condition. They intended to go hunting in the vicinity of Kenora, Ontario, Canada, and wished to reach their destination, a distance of 750 miles, some time that night. They would have reached their destination as planned, except for an accident which caused the loss of gasoline, a distance of 40 miles from Kenora at about 9:30 p. m. Defendant did the driving. Ralph Caffarello and plaintiff alternated between the front and rear seats, and at times would sleep. They arrived at Kenora. On the journey they traveled through between 60 and 100 cities and towns, at which time the speed of the car was reduced and traffic regulations observed. The average rate of speed was between 45 and 60 miles per hour. Plaintiff states that the speed of the car never exceeded 60 miles per hour. The defendant and Ralph say that at times the speed reached 80 miles an hour; that there were no accidents and that Michael Caffarello drove carefully, cautiously and prudently; that no one had any cause to criticize as to the manner in which the car was operated; that on the route they encountered numerous curves and traveled in darkness with the headlights burning both on the morning of departure and the night of arrival at the point where they were stalled after losing their gasoline at 9:30 p. m., some 40 or 50 miles from Kenora, their destination. On the return trip on September 18, 1937, they left International Palls after having dinner. It was dark and required the use of the headlights of the car. Defendant drove the car. Plaintiff was seated in the front seat opposite him. Ralph was seated alone in the rear. They encountered many curves and hills after leaving International Falls. At about 11:30 p. m., while the automobile was being driven on route 53, about 1 mile north of the village of Orr, and about 45 or 50 miles from International Falls, in rounding a curve the right wheels got off the right side of the hard surfaced highway into some loose torpedo sand and started to skid. Finally the car was brought to a stop right side up. Because of the accident, plaintiff received a cut in his left eye that caused almost total blindness in that eye. A plat of the road shows that at the point where the accident occurred, it is 28 feet wide, with a 4 foot shoulder on each side. The road has a black top surface. On February 17,1938, plaintiff filed his two-count complaint in the circuit court of Cook county. The first count relied on charges of negligence and the second count on wilful and wanton acts. The trial resulted in a verdict finding the defendant guilty and assessing damages in the sum of $15,700. Defendant moved for a directed verdict in his favor, for a judgment notwithstanding the verdict and for a new trial, all of which motions were denied. Judgment was entered "on the verdict, to reverse which this appeal is prosecuted.

The first criticism leveled at the judgment is that the court erred in denying defendant’s motion to discharge the jury after counsel for plaintiff by his voir dire examination, had informed the jury that defendant was covered by insurance issued by the Underwriters at Lloyds of London. Prior to the voir dire examination of the jury, plaintiff’s counsel presented, and the court allowed to be filed, an affidavit sworn to by plaintiff, all of which was upon information and belief, in which he asked the court to be permitted to question prospective jurors as to their financial interest if any, in the Underwriters at Lloyds of London. The reasons advanced were that the cause was being defended by the Underwriters, who had agents in Chicago; that the defense attorneys were engaged by the Underwriters; that there were at least 50 persons employed as claim adjusters, agents and attorneys in Chicago who were financially dependent upon the Underwriters. A. counter-affidavit sworn to by an attorney who was a member of the firm representing the defendant was filed. The affidavit stated that he had charge of the preparation and defense of the suit; that the defendant does have certain insurance issued by certain individuals who are members of the Underwriters at Lloyds of London, which may insure the defendant’s liability to some extent in the instant case; that each of the persons so liable are individuals who have assumed the individual portion of the total liability which has been assumed by all; that no one of the individuals is liable for the obligation assumed by any other of the Underwriters; that the Underwriters on defendant’s insurance contracts are citizens and actual residents of the Kingdom of Great Britain; that none of them resides in Illinois; that none of them is on the jury panel; that all of the Underwriters do not go on every contract of insurance; that the contracts which the defendant holds are not signed by more than 5 or 6 per cent of the Underwriters at Lloyds; that the agent who wrote the contract of insurance was K. N. Crawford & Company; that the investigators who made the investigation were Toplis & Harding; that the attorneys employed to defend the claim were Ekern & Meyers; that no officer, agent or employee of either of these firms was on the jury panel; that no other agent, investigator or attorney for any of the other Underwriters had any interest whatever in the outcome of the litigation; that the maximum possible liability of the Underwriters on the policy was for $10,000 and costs. Thereafter, the court, over objection of defendant, allowed plaintiff to examine the jury as follows:

“I will ask you gentlemen individually whether or not any of you are employed by or interested in any way, either as policy-holders or otherwise, or have any members of your families or your immediate friends an interest in a concern known as the Underwriters at Lloyds of London. Now if any of you have such connection or know of the parties mentioned, if you so state, you will be excused.
“A juror: I write insurance for Lloyds.
“Mr. Bowe: All right, I think the juror may be excused by agreement. What is your name?
“The Juror: Anthony Mitus.
“The Court: You may ask these additional jurors who came in whether they are in any way connected.
“Mr. Bowe: Yes. Now, were you gentlemen sitting in the court room when these questions were put to the other jurors ?
“The Jurors: Yes, sir.
“Mr. Bowe: That is, as to your acquaintance with any of the parties or the concern which was mentioned to you, or any of the attorneys, I take it none of you have any such connection or acquaintance?
“A Juror: The question about insurance, is that automobile insurance or life insurance?
“Mr. Bowe: Automobile insurance, and it is the only one concern mentioned.” Plaintiff responds that in thus examining the jury, he was within his rights, and relies on the case of Smithers v. Henriquez, 368 Ill. 588. He calls attention to the fact that the record shows justification for the inquiry because a venireman named Mitus answered that he wrote insurance for Lloyds. Plaintiff states that the answer shows justification for his apprehension, as set forth in the affidavit. The S'withers case contains a thorough and able review of the cases in this and other States. The ruling on a motion for leave to examine veniremen as to their connections with an insurance company where the defendant is covered by insurance, rests largely in the discretion of the trial court. We do not believe that the record shows that the plaintiff, in asking the questions complained of, was acting in bad faith. We are of the opinion, therefore, that the point is not valid.

The second point urged is that wilful and wanton acts permit recovery of punitive damages, and it is not in accord with the public policy of this State to allow such damages where wilful and wanton acts were committed in another State.- Plaintiff states that no punitive damages were demanded or allowed in the case, and that the instruction on damages limited the jury to damages that would be a fair compensation for the injuries sustained by plaintiff. We have examined the authorities and conclude that the cases which hold that punitive damages will not be allowed for wilful and wanton acts committed in another State are not applicable to the case at bar, where no punitive damages were demanded. Under his second point, defendant also asserts that there was no wilful and wanton misconduct on the part of defendant. In connection with this point, defendant states that the decision as to whether or not a defendant is guilty of wilful and wanton misconduct is for the court where there is no evidence from which a jury could reasonably find that a defendant was guilty of such misconduct. Plaintiff insists that the evidence shows that the defendant was guilty of wilful and wanton misconduct. Hence, it is necessary for us to consider the evidence. In addition to what has heretofore been stated, the evidence shows that the night of the accident was clear, but very dark, and that the weather was dry. The accident occurred as the automobile was driven, with the bright lights turned on, between 50 and 60 miles per hour, around a curve in the highway. The automobile turned over several times, after which it came to a stop on its wheels, right side up, on a shoulder of the highway. No one criticized or complained about the manner in which the car was being driven until about 15 minutes before the accident. Plaintiff states that about 15 minutes before the accident, the defendant drove his car around a curve in the road, at which time the car skidded and made gravel fly up, and that he then warned defendant by saying, “Take it easy.” The defendant states that no skidding occurred at that time and that plaintiff did not make the remark. Ralph Caffarello was asleep in the hack of the car for some time before the accident. He testified that he was not listening or paying any attention to what conversation passed between plaintiff and defendant for an hour before the accident. Plaintiff testified that as the car approached the curve where the accident occurred, plaintiff again warned the defendant by saying, ‘ ‘ Curve ahead,” and that the defendant replied, “You are nervous.” Ralph Caffarello stated that he did not hear plaintiff say anything and does not remember any such occurrence. Plaintiff states they did not pass another automobile immediately prior to the time they came upon the curve; that at a point 200 yards before reaching the curve, plaintiff said to defendant, “Curve ahead,” but that defendant did not slacken his speed until the curve had been reached, when the defendant applied his brakes, skidded into the soft shoulder, ran to the left and then to the right of the road, where the car rolled over and came to a stop right side up on the left hand side of the road; that the highway at this point is constructed of gravel. Defendant denies that he heard the plaintiff say, “Curve ahead,” and states that the fights from another car which was traveling in the opposite direction blinded him for an instant, and that he did not see the curve until right upon it; that his right wheels got off the road into some loose torpedo sand and started to skid; that he attempted to adjust the forward progress of the car and control its operation, and in doing so pulled it abruptly to the left, then to the right, after which the car rolled over several times and came to a stop on its wheels on the right shoulder of the highway. Ralph Caffarello testified that he had been sleeping part of the time; that he neither heard or saw anything unusual until he sat upright in the car immediately prior to the accident; that he saw fights coming toward them; that the highway was of a black top hard Surface construction, about 30 feet wide; that after their car stopped rolling, it stopped upright on the shoulder of the highway. In addition to the injuries to plaintiff, the defendant received five broken ribs and his brother received a cut on his head and his back was hurt.

We must assume that the jury accepted the testimony that was favorable to the plaintiff, and the reasonable inferences to be drawn therefrom. Fifteen minutes before the accident, the defendant’s car, in going around a curve, skidded slightly and stones from the side were thrown up. At that time plaintiff warned defendant to be more careful by saying, “Take it easy.” The defendant was, therefore, made conscious of the danger of skidding on a curve by the fact that he had skidded, and by plaintiff’s warning. As the car approached the curve where the accident happened, plaintiff again warned him by saying, “Curve ahead.” The defendant said, “You are nervous,” and attempted to make the curve without slackening his speed of 60 miles an hour. The defendant testified on cross-examination that it is the better part of caution to bring the speed of a car down when approaching a curve so that the car will be under control. The defendant testified that an automobile going in the opposite direction, approached. The lights from the approaching automobile would illuminate the course and outline the curve. He was therefore, conscious of the curve ahead and conscious of the fact that he was going around that curve at 60 miles an hour. He deliberately disregarded his duty to slacken his speed to protect plaintiff from a known and impending danger and recklessly drove the car around the curve at such á high rate of speed that the right wheels went into the loose sand at the side of the pavement, and in consequence, the car skidded and turned over. We are of the opinion that competent evidence was presented to the jury, from which they had a right to decide that the defendant was guilty of wilful and wanton misconduct.

The third point asserted by defendant is that the court erred in denying his motion to instruct at the close of all the evidence and for a judgment notwithstanding the verdict. Under this point he makes the statement that the rights of the parties and trial procedure are determined by the common law of Illinois, even though the mishap occurred in Minnesota. We agree with the answering statement of plaintiff that the substantive rights of the parties are governed by the laws of Minnesota and the procedure by the laws of Illinois. The case was tried in the spring of 1939. Under sections 48a and 48b of ch. 51, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.122, 107.123], the trial court and this court take judicial notice of the laws of a public nature enacted by any State or territory of the United States. We agree with defendant that the act means that the court takes judicial notice of statutes. Plaintiff asserts that there is no statute in Minnesota similar to our “guest statute” (sec. 58a, ch. 95½, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 85.064(1)]). As the courts take judicial notice of the enactments, they necessarily take judicial notice of the possible fields of legislation where there are no enactments. We proceed, therefore, on the basis that there is no so-called “guest statute” in Minnesota. Sections 48g-48n, ch. 51, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.123 (1)-107.123 (8)], approved July, 1939, provide that every court of this State shall take judicial notice of the common law and statutes of every State, territory and other jurisdiction of the United States, and that the court may inform itself of such laws in such manner as it may deem proper and may call upon counsel to aid it in obtaining such information ; also that the determination of such laws shall be made by the court and not by the jury, and shall be reviewable. The latter statute is not applicable to the case at bar because it did not go into effect until after the trial of the case. We agree with the statement of defendant that in the absence of proof, it is presumed that the law of Minnesota is the common law as administered by the courts of this State. In this case, no proof was made as to the common law of Minnesota. We must, therefore, view the case from the standpoint of the common law of Illinois prior to the enactment of the “guest statute.” Under point three defendant also argues that plaintiff failed to prove negligence on the part of defendant and that the evidence, on the contrary, shows, as a matter of law, that plaintiff’s injuries were the result of accident, for which the defendant is not responsible. Defendant states that negligence cannot be presumed from the mere happening of the accident; that plaintiff, together with defendant and his brother, had traveled 750 miles from Chicago to Kenora, and about 200 miles on the return trip when the accident occurred ; that up to that time defendant had at all times operated the car with care, prudence and caution; that Ralph and plaintiff were so unconcerned with their personal safety and felt so secure in defendant’s care that they took turns sleeping while enroute, and argues that to conclude that defendant, after traveling almost 1,000 miles and after driving with the utmost care and caution, would suddenly disregard the most fundamental principles of safety and drive his car with its passengers into certain danger and possible death, is difficult to believe. It is undisputed that the defendant lost control of the automobile and that the injuries resulted therefrom. As in our discussion of the evidence in connection with the wilful and wanton count, we are of the opinion that competent evidence was submitted to the jury which warranted them in finding that the defendant was guilty of negligence, and that such negligence was the proximate cause of the injury to plaintiff.

A third proposition discussed by defendant under his third point is that inasmuch as plaintiff sat beside defendant and acquiesced in all of defendant’s acts in operating the automobile in question during all the trip up to and including the occurrence in question, plaintiff is estopped from claiming that defendant’s conduct was negligent, wilful or wanton, and that under the circumstances, plaintiff participated and was a party to such negligence, or wilful or wanton conduct, if any, and therefore, is not entitled to recover. Under this caption defendant points out that he had driven an automobile for 28 years and was considered a skilful and careful driver; that plaintiff had known him for about 4 years and had accompanied him on other occasions and knew him to be a careful and cautious driver; that the highway used going to Kenora and returning therefrom, near the village of Orr, Minnesota, where the accident happened, was as well known to plaintiff as to defendant; that the defendant was required to drive in darkness with headlights burning on the trip up, as well as on the return trip; that along the highway were numerous curves; that the mishap was caused because the car got out of control after the right wheels hit the loose sand on the right side of the highway on a curve, traveling at 50 or 60 miles an hour, and that under the circumstances, plaintiff, by his conduct, is estopped from complaining that defendant was negligent or wilful or wanton. Defendant insists that it was the duty of plaintiff to exercise due care for his own safety, and to warn the driver and even insist that the automobile be stopped so that he could get out, if defendant persisted in disregarding the warning. The evidence, viewed from plaintiff’s standpoint, shows that he did warn the defendant. It also shows that up to within 15 minutes of the time of the accident, defendant drove in a-careful manner, and that defendant was a skilled and experienced driver. The parties were well acquainted. There would be no reason for plaintiff to suppose that more than a word of caution was necessary. They were traveling at night in a wooded territory, and we believe it is unreasonable to argue that plaintiff should have insisted on leaving the car. Plaintiff points out that the dash lights were off; that most experienced drivers and chauffeurs drive that way at night to save their eyes from strain, and that under the circumstances, defendant had the feel of the car and knew how much gas he was feeding it and was the only one who knew the exact appropriateness of his speed. Defendant also comments on the fact that plaintiff sat still for seven or eight seconds after he warned defendant and until the crash. Defendant’s testimony was to the effect that the accident happened because of the blinding headlights. Plaintiff argues that if defendant’s statement about the headlights is true, then he (defendant) drove the car in the face of blinding headlights without •reducing the speed of the car, that the headlights themselves would constitute a warning of danger, and that his proceeding blindly along the road under the circumstances, was inexcusable. We cannot agree with the contention of defendant that plaintiff is estopped from claiming that defendant’s conduct was negligent, wilful or wanton, nor can we agree with defendant that plaintiff participated in and was a party to the negligent or wilful or wanton conduct of defendant. The last proposition urged under this point is that when the evidence is considered with all reasonable inferences drawn therefrom, taken' most favorable for the plaintiff, and there is a total failure to prove one or more necessary elements of the case, the motion to direct should be allowed. That statement is not challenged. We have found that there is competent evidence, which, taken with the reasonable inferences, warranted the jury in finding that plaintiff had proved the necessary elements of the case.

As a fourth point, defendant maintains that the court erred in denying his motion for a new trial. He insists that the verdict is contrary to the manifest weight of the evidence. Our view is that the case involved a decision on the facts, and that the verdict is supported by the evidence. Defendant also argues that the ver-diet is excessive and the result of passion and prejudice. He states that plaintiff’s actual damages were $300, and that although he was absent from his employment for 40 days, he sustained no loss in his earnings, inasmuch as none was shown by the evidence. He continued to work for the same company in the same capacity for one year after the accident. When he severed his connection with the American Air Lines, about a year after the accident, he did not do so because of the injury to his left eye. At the time of the trial he was gainfully employed with the Wright Aeronautical Corporation. At the time of the occurrence he was 32 years of age and was employed as an airplane mechanic. His occupation requires that he adjust delicate apparatus, and that he read micrometers, etc., where good eyesight is essential. An airplane mechanic’s usefulness and efficiency is increased if he can pilot the planes in flight in order to discover disturbances in the mechanism and make tests under actual working conditions. Before the accident he was a licensed pilot. After the accident his license was revoked, because a licensed pilot is required to have good vision in both eyes. There is no useful vision in his left eye. With that eye he has the ability to see at approximately 2 feet what he should see at 200 feet, and there is absolutely no ability whatever to read. A physician testified that at the time of the trial the lid of the left eye was not open. The condition was described as “ptosis,” which is defined as a drooping of the lid, plus a paralysis of the nerve. The physician also stated that a certain type of operation could be performed which would permit the lid to be lifted. The witness stated that it would be a “rather intricate operation,” and that after the operation it would not be a “normal lid” and that the operation would not add any to the vision, but would improve the appearance. A consideration of the testimony convinces us that the damages. awarded by the jury were not excessive and that the determination of the damages was not influenced by passion or prejudice. Defendant then argues that plaintiff relied upon a count charging negligence and a count charging wilful and wanton misconduct, and that inasmuch as defendant, by motion, which was denied, at the conclusion of all the evidence, asked the court to withdraw from the consideration of the jury the wilful and wanton count, the general verdict for the plaintiff cannot stand unless the injury was the result of defendant’s wilful and wanton misconduct-. Subsequent to the filing of the reply brief, the defendant was granted leave to file a supplemental brief. Therein he cited the recent case of Greene v. Noonan, 372 Ill. 286. The opinion decides that where a complaint consists of several counts, one or more of which state a cause of action the gist of which is malice, with others based upon negligence only, and the verdict is general, without specifying the count on which it is based, the presumption is that the verdict is based upon the cause of action of which malice is the gist. In the instant case, the complaint contained two counts, one of which charged negligence and the other wilful and wanton misconduct. The verdict was general and did not specify the count on which it was based. The case cited is not applicable to the situation presented to us because here there was competent evidence to sustain the action of the jury in finding the defendant guilty under the count charging negligence and under the count charging wilful and wanton misconduct.

Defendant criticizes the action of the court in instructing the jury that “if you believe from the preponderance of the evidence under the instructions of the court that the plaintiff was on or about September 18, 1937, riding as a passenger in an automobile being driven by the defendant on a public highway in the State of Minnesota, and that the plaintiff was then and there and prior thereto in the exercise of ordinary care for his own safety, and if you further believe from the preponderance of the evidence under the instructions of the court that the defendant negligently drove or controlled said automobile, and thereby caused said automobile to overturn and cause the plaintiff to sustain injuries, then you should find the defendant guilty.” He states that the instruction did not confine the jury to consideration of the evidence as to the negligence charged in the complaint, and that it left the jury free to muster their own idea of what negligence was proved. He also insists that the instruction made it mandatory upon the jury to find the defendant guilty of wilful and wanton misconduct upon proof of simple negligence. Paragraph 5 of count 1 of the- complaint charges that the defendant “then and there negligently and carelessly drove, operated, managed, controlled and maintained the said automobile, so that in consequence thereof the said automobile overturned as aforesaid. ’ ’ The instruction substantially followed the language of the complaint and was applicable to the facts. As to the criticism, that the instruction asks for a finding of “guilty” on proof of simple negligence and at the same time retains the wilful and wanton count in the complaint so as to preclude the defendant" from instructing the jury to the effect that the negligence of the plaintiff bars the plaintiff from recovery, plaintiff points out that defendant was not precluded from instructing the jury to the effect that contributory negligence would bar the plaintiff’s recovery, ,and that as a matter of- fact such an instruction on behalf of defendant was- given. We find that at the request of defendant the court gave instruction No. 9, which instructed the jury that “if you find from the evidence that the plaintiff, Robert Paul O’Neal, was a man of mature years, in the possession of all his faculties, and that at the time of the accident here in question he was riding in an automobile driven by the defendant, Michael Caffarello, in a careless, negligent and improper manner, and that the said plaintiff had been riding in said automobile for a sufficient time prior to the said accident for him, in the exercise of ordinary prudence, to become aware that said automobile was being driven in a careless, negligent and improper manner, and if you further find that the said plaintiff failed to protect or to warn the said Michael Oaffarello against the manner in which he, the said Michael Caf-farello, was driving and operating the said automobile, and that such failure on the part of the said plaintiff caused or proximately contributed to cause the said accident, then the plaintiff cannot recover in this case and you should find the defendant not guilty.” We agree with plaintiff that defendant was not harmed by the giving of plaintiff’s instruction No. 1. Defendant contends that the court should have instructed the jury that “The law did not impose upon the defendant, while operating his automobile upon the public highway here in question, the duty of protecting other persons riding with him in his automobile against remote, unusual or extraordinary perils which could not be .foreseen or guarded against or prevented by a degree of care consistent with the practical operation of his automobile. All that was required of him in that regard was the exercise of ordinary care in the operation of his machine and in looking out for and trying to avoid accidents and injury to other persons; and if you believe from the facts and circumstances proved and the evidence in this case that the accident in question was due to some remote, unusual or extraordinary circumstance or combination of circumstances which could not be foreseen or guarded against or prevented by an ordinary prudent man exercising ordinary and reasonable care for the safety of others, and if you believe from the evidence that the said defendant was at the time he approached the place in question and during all of said transaction in the exercise of ordinary care for the safety of others in the conduct and management of his automobile, there can be no recovery against him in this case. ’ ’ We find that the substance of the instruction was given to the jury in defendant’s given instructions Nos. 1, 6, 10 and 11. He also complains of the refusal of the court to give the following three instructions:

“You are instructed that if the plaintiff, Robert Paul O’Neal, appreciated or should have appreciated the dangers and risks of riding in the automobile driven by the defendant, Michael Caffarello, at the speed, in the nighttime here in question, and voluntarily continued to remain in the car without protest and without doing anything to caution or warn the driver, then he was negligent as a passenger, and if his negligence led to bringing about this accident; then he cannot recover in this case, even though the defendant was also negligent.

“You are instructed that the fact that the defendant, Michael Caffarello, was driving the autmobile and that the plaintiff herein had no control of the operation of the said automobile, did not relieve the said plaintiff from the necessity to use care for his own safety. By merely inviting him on the trip and ride here in question the defendant did not hereby guarantee the safety of the plaintiff, nor relieve the said plaintiff from all care for his own safety.

“It was the duty of the said plaintiff to observe the manner in which the car was being operated, including the rate of speed and the dangers incident thereto, and to keep a reasonably careful lookout. In case the said plaintiff did observe or ought to have observed that the car was not being operated with reasonable safety, it was his duty to protest, and if necessary, to have the car stopped.

. “The plaintiff was negligent if, under the circumstances, you find from the evidence he so acted or so omitted to take precaution for his own safety that he ought reasonably to have foreseen that some injury to himself might probably result from his conduct.

“If from the evidence and under the instructions of the court, you find that the plaintiff voluntarily consented to be a passenger in the defendant’s car after he knew or. ought to have known that the defendant persisted in driving the same, at the time . and place here in question, at a high and dangerous rate of speed, if any, after the plaintiff had asked the defendant to take it easy, if he did, and that such voluntary exposure, if any, resulted in the occurrence here in question, then the plaintiff is not entitled to recover.” Plaintiff calls our attention to the fact that these instructions ignore the wilful and wanton count. Refused instruction No. 3 is virtually a repetition of defendant’s given instruction No. 9 and refused instruction No. 4 is a repetition of defendant’s given instructions Nos,. 9 and 10. Instruction No. 9 has been heretofore quotéd. Instruction No. 10 told the jury that “In this case the defendant is not an insurer of the safety of the plaintiff while the plaintiff was riding in the autmobile here in question. The only duty that the defendant owed to the plaintiff was the duty to exercise that degree of care and caution in the operation and control of his automobile that an ordinary prudent person would have used under the same circumstances appearing in evidence in this case.” Defendant’s refused ins!ruction No. 5, in effect, told the jury that if they believed the testimony from the viewpoint of the plaintiff, that it was the duty of the plaintiff to leave the car before the accident. Under another point, we stated that we did not conceive it to be the duty of plaintiff to leave the car under the circumstances shown by the evidence. Furthermore, we are of the opinion .that the instruction invades the province of the jury by stating what acts or omissions on the part of plaintiff would constitute contributory negligence. Finally, defendant insists that it was the duty of the court to instruct.the jury that “if you believe from the evi-' dence that the plaintiff and the defendant, were both guilty of negligence which proximately contributed to the injury or damage complained of, then you are instructed that you have no right to compare the negligence of' the plaintiff with that of the defendant, and find a verdict according to which side you think was guilty of the greater degree of negligence, for in such case it is the law that it makes no difference which was guilty of the greater degree of negligence. Under such circumstances, the plaintiff cannot recover.” The instruction is not applicable to the facts in the instant case. Moreover, the substance of the instruction was covered in defendant’s given instruction No. 9, which directed the jury to find the defendant not guilty if the plaintiff was guilty of any negligence contributing to the injury.

A careful reading of all of the instructions convinces us that the jury was fully and fairly instructed as to the law applicable to the case.

For the reasons stated, the judgment of the circuit court of Cook county should be and it is affirmed.

Judgment affirmed.

Deris E. Sullivan, P. J., and Hebel, J., concur.


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    Fidelity and Casualty Company of New York, Appellant, v. Continental Illinois National Bank and Trust Company of Chicago, Appellee.
    Gen. No. 40,895.

      Heard in the third division of this court for the first district at the October term, 1939.
    Opinion filed February 14, 1940.
    Rehearing denied March 12, 1940.
    Rathje, Hinckley, Barnard & Kulp, of Chicago, for appellant; Joseph J. Sullivan, Jr., of Chicago, of counsel.
    Chapman & Cutler and Mayer, Meyer, Austrian & Platt, all of Chicago, for appellee.; Ralph F. Huck, of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

During the years 1929 and 1930 Hannah H. Blackwell (hereinafter referred to as Hannah) became the owner of 240 shares of the common stock of Pittsburgh Screw and Bolt Corporation and 2 shares of preferred and 9 shares of common stock of City Ice and Fuel Company. Since June 28, 1932, a joint checking account was maintained by Hannah Blackwell and C. W. Blackwell, her husband, in the Harris Trust and Savings Bank, Chicago, on which both had power to draw, and on which both from time to time did draw. Both Hannah and her husband agreed that funds deposited to the credit of that account could be drawn out by either. Prior to August, 1933, Hannah also opened a savings account at the same bank. The record does not show when the savings account was opened. On April 5, 1933, subsequent to the date of the opening of the savings account, she executed a power of attorney, which reads: “Mr. C. W. Blackwell, whose signature appears above is hereby authorized to check and draw money on my savings account No. 3434 with you, using and signing my name for the purpose in such style and manner as may be acceptable to you, also in my name to endorse checks and drafts for collection or for credit on my account or to obtain cash therefor and generally to transact business with you for me and in my name the same as I could do myself if I were personally present and acting therein; and I hereby ratify all he may do in the premises by virtue of this authority.

‘ ‘ This authority to remain good until revoked by me in writing. ’ ’ Above the quoted language appears the authorized signature of “Hannah H. Blackwell by C. W. Blackwell.” During the months of August and October, 1933, C. W. Blackwell, herein referred to as Blackwell, having secured possession of all the stock certificates, delivered the Pittsburgh Screw and Bolt Corporation’s certificates, bearing forged indorsements of her name, to Shields & Company for sale. Shields & Company guaranteed the indorsements, sold the certificates for $1,857.60, and delivered its checks for the sales price to Blackwell. The checks were payable to Hannah as the owner of the certificates, and were drawn on the defendant, Continental Illinois National Bank and Trust Company of Chicago, as drawee. After receiving the checks from Shields & Company, Blackwell immediately deposited them (bearing the forged indorsements of Hannah’s signature as payee, and his genuine indorsements), not in her savings account, but in the joint checking account in the Harris Trust and Savings Bank. The checks were presented by the Harris Bank to the defendant drawee, which honored them and charged the amounts thereof to the account of Shields & Company. During the month of July, 1934, Blackwell delivered Hannah’s City Ice and Fuel Company’s certificates, bearing forged indorse-ments of her name, to Shields & Company for sale. The latter guaranteed the indorsements and forwarded the certificates to Kneelarid & Company, which likewise guaranteed the indorsements, sold the certificates and delivered checks aggregating $337.62 to Blackwell for the sales price. These checks were likewise payable to Hannah as the owner of the certificates, and were also drawn on the defendant. Blackwell thereupon deposited the checks bearing the forged indorsements of Hannah, as payee, and his genuine indorsements, in the same checking account at the Harris Bank, and shortly thereafter withdrew the proceeds. The checks were presented by the Harris Bank to the defendant bank, the drawee, which honored the same and charged the amounts thereof to the account of Kneeland & Company, the drawer. Shortly after the conversion and sale of the certificates, they were delivered to the Pittsburgh Screw and Bolt Corporation and the City Ice and Fuel Company respectively, for cancellation and transfer. Prior to the issuance of the checks by the brokers, tlie plaintiff herein had agreed to indemnify the brokers and to save them harmless from any loss occasioned by forgeries of drafts, checks or securities and indorsements thereon, which indemnity agreements were in force at the time of the transactions. During 1933 and 1934, in which period the transactions complained of took place, Blackwell was unemployed. He had lost his position, but had not informed his spouse until some time in September or November, 1934, after all the transactions here involved had taken place. Hannah, during that period, was under the impression that he still had his job. During that period she and her husband continued to live as they had before, doing the things they had been accustomed to do, including spending substantial amounts of money at Flossmoor Country Club, living in an apartment for which the rent was over $100 a month, and maintaining a car. Blackwell deserted Hannah in the early Fall of 1934. It was not until after his desertion that she discovered the stock certificates had been stolen and sold by means of forged indorsements of her signature. She filed complaints in chancery in the circuit court of Cook county against the corporations which had issued the stock certificates, and therein prayed for a decree directing them to replace the certificates by the issuance and delivery to her of new certificates in lieu thereof, or in the alternative, for judgments equal to the market value of the stock. She also asked for an accounting and for judgments for the amount of dividends attributable to the shares of stock since the respective dates of transfer. The issuers requested the brokers to indemnify them against the asserted damage. As a result of the litigation the brokers procured shares of stock on the market which were turned over to Hannah, in lieu of the stock which bore the forged in-dorsements. Thereupon plaintiff indemnified the brokers in accordance with their contracts and procured assignments of their causes of action. It also appears that subsequent to filing her complaint for relief against the issuers of the stock, Hannah filed a complaint for and was granted a decree dissolving the bonds of matrimony between them. On June 18, 1938, plaintiff as the assignee of the drawers of the checks, filed its complaint in the circuit court of Cook county and asked for judgment in an amount equal to the aggregate of the checks issued by the brokers, with interest thereon from the respective dates of issuance; The defendant answered, and the case was tried before the court without a jury. Written stipulations were read. Hannah also testified briefly. The court found the issues against plaintiff and entered a judgment for costs, to reverse which this appeal is prosecuted.

The first point urged by plaintiff is that a drawee bank has an unqualified duty to the drawer to honor only such checks as bear the indorsement of the payee, the genuineness of which it must ascertain at its peril, and has no authority to charge the drawer’s account with the amount of checks honored by it bearing the forged indorsements of the payee. Its second point is that in a suit by the drawer of a check against the drawee bank, proof that the indorsement on the check is not in the handwriting of the payee is sufficient, prima facie, to establish the fact that the indorsement is a forgery and to justify a judgment based upon the fact of such forgery, and upon such proof being made the drawee has the burden of sustaining its contention that the indorsement was authorized by the payee. Defendant does not challenge the correctness of these propositions. Finally, plaintiff insists that powers of attorney and general expressions and language contained in powers of attorney, however broad they may appear to be, are, as a matter of law, strictly construed as limited to acts of the kind indicated by the appointment so as to effectuate the principal’s purpose and intention in creating the agency, and should not be construed so as to enlarge the powers specifically given. Defendant admits that the latter is a correct statement of the rule as to the construction of powers of attorney. Defendant argues, however, that this rule of construction in the instant case has application only to the last phrase, which reads: “and generally to transact business with you for me and in my name the same as I could do myself if I were personally present and acting therein.” Defendant admits that this phrase merely gives power to Blackwell to do all the things necessary to carry out the specific and express powers given, and that the general authority in that phrase serves merely to amplify' and emphasize that what was done was proper and binding upon Hannah, and within the express powers given. Defendant, however, maintains that Blackwell’s act of indorsing the checks and depositing them in the joint checking account, was within the actual authority expressly conferred on him by the power of attorney, and that hence the question of the liability of the defendant, as the drawee bank, for payment of checks upon a forged or unauthorized indorsement is not here involved. There is a dispute between the parties as to whether the record does show that C. W. Blackwell physically placed the indorsements of “Hannah H. Blackwell” on the checks in question. In its answer defendant alleged that the indorsement of the name of the payee was made by Blackwell. This was ‘‘ new matter” pleaded by the defendant. In its reply plaintiff does not deny that the indorsements were made by Blackwell, but states that the checks were deposited in the joint checking account, and that the account was really Blackwell’s account, and that Hannah did not know that the proceeds were in that account until long after. The record shows that at the time of the trial, counsel for defendant informed the court that Blackwell indorsed his wife’s name on the stock certificates. It was also admitted that Blackwell, after receiving the checks from the brokers, deposited them in the joint cheeking account at the Harris Bank. Plaintiff calls attention to paragraph 53 of the stipulation, which reads:

“53. Nothing herein contained shall be construed as an admission or stipulation by or on behalf of the Defendant or said Harris Bank that the endorsement ‘Hannah H. Blackwell’ appearing on said checks of Shields & Company and said checks of Kneeland & Co., Inc., was a forgery, or an admission or stipulation by said persons that the said endorsement was placed thereon without the authority of said Hannah H. Blackwell. Likewise nothing in this stipulation contained shall be construed as an admission or stipulation by the Plaintiff or by said Hannah H. Blackwell that the endorsement ‘Hannah H. Blackwell’ appearing on said checks of Shields & Company and said checks of Knee-land & Co,, Inc., is the actual signature of said Hannah H. Blackwell or that said endorsement was placed thereon by or with the approval, direction or authority of said Hannah H. Blackwell.” We agree with the defendant that the purpose of the stipulation was to make sure that plaintiff was not foreclosed from asserting that the power of attorney was not sufficient to authorize Blackwell to indorse and deposit. Nothing is mentioned therein as to whether Blackwell did or did not indorse his wife’s name. We find that the record clearly warranted the court in finding that Blackwell indorsed his wife’s name on the certificates and on the checks.

Plaintiff argues that it is apparent from a perusal of the power of attorney that it was given to the Harris Bank by Hannah for the sole purpose of enabling Blackwell, should the occasion arise, to transact, for her, business pertaining only to her savings account, that the document did not authorize defendant or the Harris Bank to honor drafts which might be presented to either bank bearing her simulated forged indorsement, but only permitted Blackwell “to check and draw money on my savings account No. 3434 with you, using my name for the purpose in such style and manner as may be acceptable to you, also in my name to endorse checks and drafts for collection or for credit on my account or to obtain cash therefor.” Plaintiff also asserts that if the deposits had been accepted by the Harris Bank in reliance on the power of attorney, the indorsement of Hannah’s name would have been made by Blackwell and would have appeared in the form of indorsement, which Blackwell was authorized to make, and would not have appeared as the simulated indorsement of Hannah, followed by the genuine in-dorsement of Blackwell. We have held that the record before us warranted the trial court in finding that the indorsements of Hannah on the stock certificates and checks were made by Blackwell. We are satisfied that where the agent is given power to indorse checks and collect money payable to the principal, he has the right to indorse the checks either in the name of the principal with her simulated indorsement, or in her name by himself as her attorney. In the instant case the agent had the express power to indorse checks for credit or collection, or to obtain cash therefor. Defendant maintains that the power of attorney authorized Blackwell to draw money from his wife’s savings account. There is no dispute as to that proposition. Defendant also states that Blackwell was given power to indorse checks and drafts for collection, that he was given the additional power to indorse checks and drafts for credit ‘ ‘ on my account, ’ ’ and that finally he was granted the specific power to indorse checks and drafts in order “to obtain cash therefor.” The last-mentioned power is the one upon which defendant places chief reliance. Defendant argues that since Blackwell had the power to indorse checks payable to Hannah, and upon such indorsement obtain the cash therefor, he also had the power to do the lesser thing of crediting the amount of the checks to the joint checking account, and urges that if instead of cashing the checks or depositing them to the credit of the joint account, he had deposited" them in the savings account itself, there could be no question but that the power of attorney permitted him to do that. Had he deposited the checks to the credit of the savings account, it argues that he could, under the express powers given him, have immediately withdrawn the funds from the savings account and used them as he saw fit, or put them in the joint checking-account and disposed of them just as he actually did. We have carefully analyzed the language of the power of attorney and find that it specifically authorized Blackwell to indorse Hannah’s name on the checks for the purpose of collection, or for the purpose of obtaining cash therefor, and that such authority was not restricted to the savings account.

Plaintiff contends that even though Hannah empowered Blackwell to indorse checks, nevertheless the defendant did not know about it at the time and, therefore, cannot now assert such a defense. It is a matter of common knowledge that when a check is deposited with a bank and the check is not drawn on that bank, such check is credited conditionally. The check is then collected from the drawee bank through the clearinghouse, or other banking channels. The- drawee bank, although primarily responsible to the drawer of the check, nevertheless in honoring- the check, also relies on the skill, care and responsibility of the forwardihg or collecting bank.. Defendant contends that it is not necessary to show that it had knowledge of, or that it relied upon the agency, if, in fact, the agent did: have the authority. It cites the case of Doan v. Duncan, 17 Ill. 272, 275; Moffet v. Moffet, 90 Iowa 442, 57 N. W. 954; Gallinger v. Lake Shore Traffic Co., 67 Wis. 529, 30 N. W. 790. On the other hand, plaintiff cites the case of Fay v. Slaughter, 194 Ill. 157. We have carefully considered this case and are of the opinion that the facts are not analogous to the facts in the case at bar. We are of the opinion that even though defendant did not know of the existence of the power of attorney at the time it honored the checks, nevertheless it has a right to rely thereon in establishing the authority of Blackwell to act for his wife.

As a second theory of defense the drawee bank advances the proposition that even if the indorsements and deposits constituted a wrongful act, no damage has been proven and therefore recovery must be denied. It argues that the evidence shows that the proceeds of the checks did reach Hannah just as effectively as if they had been paid to her and she had disbursed them in payment of expenses and bills which she was.in any event, obligated to pay. Under this point defendant traces the use made of the funds that were deposited in the joint checking account, and attempts to establish that Hannah received the benefit thereof, and that thereby, in effect, she suffered no loss. In view of our holding that defendant affirmatively established that Blackwell had the express authority to indorse the checks and to deposit them in the checking account, and thereafter draw out the funds, it is unnecessary for us to extend this opinion by discussing the second point.

For the reasons stated, the judgment of the circuit court is affirmed.

Judgment affirmed.

Denis E. Sullivan, P. J., and Hebel, J., concur.


text:
    Chas. Cohen et al., Copartners Trading as Cohen and Gordon, Appellees, v. Texas and New Orleans Railroad Company, Appellant.
    Gen. No. 40,936.

      Heard in the third division of this court for the first district at the October term, 1939.
    Opinion filed February 14, 1940.
    John A. Sheean, of Chicago, for appellant.
    Gíolbus & Gtolbus, of Chicago, for appellees.
   Mr. Justice Burke

delivered the opinion of the court.

Plaintiffs are copartners, engaged in the produce business in Chicago. Nathan Lerner, one of the partners, was in Sandia, Texas in May, 1934, where he purchased 396 bushel baskets of cucumbers. The cucumbers were delivered to the defendant at Sandia, Texas on May 16, 1934, and placed in PPE car 25578. The shipment was consigned to plaintiffs at Chicago. In May, 1935, he also purchased 465 bushel baskets of cucumbers from Tedford Brothers at Taft, Texas. These cucumbers were delivered to defendant at Ar-ansas Pass, Texas on May 9, 1935, and were placed in PFE car 1931, and consigned to plaintiffs at Chicago. Lerner personally supervised the packing and grading of the cucumbers at the points of origin. The shipments were reconsigned to Milwaukee, Wisconsin. Uniform bills of lading were issued as to each shipment. On the reverse side of each bill of lading, under “Contract Terms and Conditions,” appears a requirement that as a condition precedent to recovery, claims must be filed in writing with the receiving or delivering carrier, or the carrier issuing the bill of lading, or carrier on whose line the loss, damage, injury or delay, occurred, within nine months after delivery of the property, and that suits shall be instituted against any carrier only within two years and one day from the day when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim, or any part or parts thereof, specified in the notice. The bill of lading also provides that where claims are not filed or suits are not instituted thereon “in accordance with the foregoing provisions, no carrier hereunder shall be liable, and such claims will not be paid. ’ The cars proceeded from Chicago to Milwaukee via the Chicago, Milwaukee, St. Paul and Pacific Eailroad. The shipments arrived at Milwaukee in a somewhat damaged condition, obviously due to the shifting of the loads in transit. The railroad handling, exclusive of the shifting feature, was shown to have been good, the cars moving over great distances under proper service, as contemplated by the shipper’s instructions, and transported between the points of origin and destination without any delay. On June 8, 1934, a duly authorized representative of plaintiffs presented in writing to the delivering carrier, Chicago, Milwaukee, St. Paul and Pacific Railroad, a document, entitled, “Loss and Damage Claim,” addressed to the freight-claim agent of defendant at Houston, Texas, and to the freight-claim agent of the delivering carrier. The document bore file No. CG 7220, and read:

“You are hereby notified that car PFE 25578 shipped from Sandia, Tex. on or about 5-16-34 containing cukes arrived at Milwaukee, Wis. on or about 5-21-34 day of-19— in damaged condition, caused by negligence and improper service of the said St. P. R. R. Co. and connecting carriers. This car of . . . when delivered to us here was found to be damaged as follows :

“Delayed-poor condition-rough handling- “ decline in market-improper vents “allowance made a/c damaged condition.

“The total loss on the shipment is approximately $250.00, more or less for which we herewith file claim. Bill in detail, together with necessary documents, i. e. bill of "lading, paid freight bill, etc. will be filed with you or the initial carrier which issued the bill of lading. ’ ’ The claim apparently was presented in duplicate, one copy going to the claim-agent of the originating carrier, and one going to the claim agent of the delivering carrier. This claim was not accompanied by any papers, such as bill of lading, freight receipt or invoice. On June 17, 1934, plaintiffs ’ agent received a written notice from the claim agent of the delivering-carrier dated June 15, 1934. The claim agent stated that the claim was recorded in his office as No. 29976-2, and read:

“Your claim under file CG — 7220 relating to PFE 25578, moving in May, 1934.

“This account does not appear to be supported with any original documents or conclusive proof in support of your contention of carriers ’ liability, and under the circumstances we are forced to respectfully disallow the claim.” There was correspondence between the claim agent of the originating carrier and plaintiffs’ representative. On July 3, 1934, plaintiffs, by their agent, presented a claim against defendant, No. 17775. This claim was addressed to the freight-claim agent of defendant at Houston, Texas, and asked for $217.80. Attached to the claim was the original bill of lading, the original paid freight bill and the original invoice. On October 26, 1934, this claim agent returned the papers and offered the sum of $38.69 in settlement. The letter stated that the investigation conducted did not justify the payment of anything more than the amount proffered in settlement. On November 6,1934, the same claim agent wrote that defendant would be glad to hold the claim pending the next visit of an adjuster to Chicago. On March 11, 1935, the claim agent stated that defendant could not pay more than the $38.69 previously offered. On June 24, 1935, the claim agent repeated the same statement. On October 15, 1936, plaintiffs filed their two-count statement of claim in the municipal court of Chicago. Count 1 sought $250 for damages to the shipment of cucumbers in PFE car 25578 from Sandia, Texas, to Milwaukee, Wisconsin, and count 2 asked a like sum for damages on account of the shipment of cucumbers in PFE car 1931 from Aransas Pass, Texas to Milwaukee, Wisconsin. Defendant filed an amended affidavit of merits. The affidavit asserted that as to car PFE 25578, the delivering carrier disallowed the claim on June 16, 1934; that the instant action was begun on October 15, 1936; that more than two years and one day had expired from the time the claim was declined until the action was instituted, and-that, therefore, the action was barred under the applicable provisions of the Interstate Commerce Act and the bill of lading. The affidavit further denied that the carriers failed to promptly and safely transport the cucumbers, and denied the damage. The case was tried before the court without a jury, and resulted in a finding and judgment for the plaintiffs and against the defendant in the sum of $438.73. Apparently, the court allowed $217.80 on count 1, being PFE car 25578, and $220.93 on count 2, being PFE car 1931. At the close of plaintiffs’ case, and also at the close of all the evidence, the defendant moved for findings in its favor, and after the findings, defendant moved for a new trial. All of the motions were overruled and the court entered judgment on the findings, to reverse which this appeal is prosecuted.

The first criticism leveled at the judgment is that the cause of action embraced in the first count was barred by virtue of the clause of the bill of lading, which requires that suit shall be instituted against any carrier only within two years and one day from the date when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim of any part or parts thereof specified in the notice. Plaintiffs contend that the suit was not barred because (1) no claim which could be declined was filed with the delivering carrier, and (2) there was no disallowance as contemplated by the Interstate Commerce Act and the bill of lading. It is well settled that an interstate carrier cannot legally waive any bill of lading provisions. Paragraph 1, sec. 3 of the Interstate Commerce Act (U. S. C. A., title 49, sec. 3) provides that:

“It shall be unlawful for any common carrier subject to the provisions of this Act to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, association, locality, port, port district, gateway, transit point, or any particular description of traffic in any respect whatsoever or to subject any particular person, company, firm, corporation, association, locality, port, port district,, gateway, transit point, or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.” Paragraph 1, sec. 10 of the same act (U. S. C. A., title 49, sec. 10) imposes severe penalties for violation of the act. The penalties were made severe for the obvious purpose of putting a stop to the vicious practice of rebating, which had become quite universal throughout the country. The United States Supreme Court has consistently construed both sections of the act in a manner to preclude any possibility of an interstate carrier favoring one patron as against another. The carrier cannot by any device or subterfuge, or under any pretense, no matter how plausible, take any step which might eventually lead to favoring one shipper or passenger as against another. The act is aimed not only at violations of tariff provisions, but is applicable to any service to be performed by the carrier as well as to any benefit accruing to the carrier by virtue of the shipping contract. To permit a railroad company .to plead the statute of limitations as against some and to waive it as against others, would be to prefer some and discriminate against others. The prohibitions of the statute against unjust discrimination relate not only to inequality of charges, but also to giving of preferences by means of consent judgments, or the waiver of defenses open to the carrier. (A. J. Phillips Co. v. Grand Trunk W. Ry. Co., 236 U. S. 662; Southern Ry. Co. v. Prescott, 240 U. S. 632; Louisville & Nashville Ry. Co. v. Maxwell, 237 U. S. 94; Georgia, F. & A. R. Co. v. Blish Mill. Co., 241-U. S. 190; Hart v. Oregon Short Line R. Co., 207 Ill. App. 290.) Plaintiffs concede that the action must be brought within two years and one day from the time when notice in writing is given by the carrier to the claimant that the claim, or any part of it, has been disallowed. They assert, however, that the document sent to the claim agents of the initial carrier and delivering carrier on June 6, 1934, entitled, “Loss and Damage Claim, ’ ’ was not in fact intended to be a claim. The reason they give for such statement is that it was the custom of their representatives who had been handling such claims for the past 15 years, to forward a notice of claim on every car to the initial carrier and a copy to the delivering carrier; that no supporting papers were forwarded with the notice, and that although notice of claim was sent to the carriers on June 6, 1934, nevertheless, the claim was not filed until July 3, 1934, “when the claim base and supporting papers were forwarded to the freight claim agent of defendant, nothing further being sent to the C. M. & St. P.” We are unable to agree with the contention of plaintiffs. The document which they sent to the carriers on June 6, 1934, is entitled “Loss and Damage Claim.” It required the carriers to “kindly acknowledge receipt immediately inserting your claim number.” It noted the claim number of claimant as file No. CG 7220. The initials undoubtedly stand for the trade name of plaintiffs, ‘ ‘ Cohen & Gordon. ’ ’ The document gives the car number, the date and place of shipment, date and place of arrival, and concludes, “The total loss on the shipment is approximately $250.00 more or less for which we herewith file claim. Bill in detail, together with necessary documents, i. e. bill of lading, paid freight bill, etc. will be filed with you or the initial carrier which issued the bill of lading.” It is quite apparent that the document constituted a claim. Joseph Golbus, who was the traffic manager associated with the attorney who presented the claim in behalf of plaintiffs, testified that the document marked “Loss and Damage Claim” was “a notice to stay the Statute of Limitations.” He undoubtedly had in mind that part of the bill of lading which requires that as a condition precedent to recovery, claims must be filed in writing with the receiving or delivering carrier, or carrier issuing the bill of lading, or carrier on whose line the loss, damage, injury or delay occurred, within nine months after delivery of the property. The carrier had a right to act on the claim at any time after it was received.

On the question as to whether the action was filed within two years and one day following disallowance of the claim, the reasons which impelled the carrier to disallow are immaterial. It undoubtedly was the duty of the carrier to give due consideration to the claim. At the time of disallowance the delivering carrier had the opportunity to be acquainted with all the facts, and there is nothing in the record that such carrier acted in an arbitrary or unreasonable manner in declining the claim. Plaintiffs, however, would not be in a position to go into the motives that actuated the carrier in declining the claim. They had a complete remedy by bringing action within two years and one day from the time such claim was declined. It is interesting' to observe that the notice from the claim agent of the delivering carrier, dated June 15, 1934, concluded with the words, “we are forced to respectfully disallow the claim.” The claim agent’s notice declining the claim thus uses the same language as the bill of lading. Subsequent to the disallowance of the claim by the delivering' carrier, defendant was powerless under the authorities, to waive the provisions of the bill of lading which placed a limitation on the time when the action could be commenced. It is interesting to observe that defendant declined the claim on October 26,1934, on March 11,1935, and finally on June 24, 1935. We are of the opinion that the carrier mentioned in the statutory provisions, as well as in the bill of lading, as the party to give the notice of declination, is any one of the carriers, whether the receiving or the delivering road, or the line on which the damages occurred, and with which the notice of claim has been filed. As the claim was filed with the Chicago, Milwaukee, St. Paul & Pacific Railroad, the delivering line, the declination by that company was conclusive on the shipper. The delivering carrier in declining the claim, was acting within the scope of its authority as an agent of the other carriers, and was also acting by virtue of the provisions of the statutes and bills of lading. Mr. Joseph Grolbus, a witness for plaintiffs, testified that the nature of the business with which he was connected for 12 years, was the presentation of claims against carriers for loss and damage of perishables, and that it was “customary for the office when we get our files to send a notice to both the originating and destination carriers. The papers supporting a claim are not sent at the time of sending the notice. These papers include the original bill of lading and freight bill and possibly an inspection report and account sales. Usually when the claim papers are received by us they include the documents indicated. If not we write for them. When the papers are so received we file notice with both the destination and originating carrier.” It is patent that a custom in the office of the attorney for the plaintiffs could not bind the carriers or change the law applicable to the situation. As the notice that the claim involving the cucumbers in car PFE 25578 was given on July 17, 1934, and the instant action was not commenced until September 15, 1936, it follows that the cause of action pleaded in count 1 of the statement of claim is barred by the limitation provision in the bill of lading.

As a second point, defendant argues that testimony introduced by plaintiffs to the effect that they sold the contents of PFE car 25578 to Rubenstein & Company at Milwaukee for $1.60 a bushel, was irrelevant, because no special damages were alleged in the statement of claim, and that such testimony was also incompetent as there was no evidence of the notice of such sale having’ been given to the carriers prior to the delivery of the car at destination. The second point also involves the car for which damages are soug’ht in the first count of the statement of claim. As we have held that the cause of action set out in that count is barred by the limitation provision of the bill of lading, it is unnecessary to discuss the second point.

Finally, defendant urges that “testimony to the effect that the market value of the entire car in each instance was adversely affected by virtue of the fact that certain physical damage had been shown to some of the cucumbers contained in a limited number of the baskets in the cars, was incompetent under the facts in the case, and there was no competent evidence in the record at the close of plaintiffs’ case to justify the court in entering a judgment against the defendant as to either or both of the cars involved.” As heretofore stated, it will be unnecessary to further consider the testimony relative to PFE car 25578.

The parties stipulated that PFE car 1931 arrived at Milwaukee at 1:30 a. m., May 13, 1935, was placed for unloading at 5:40 a. m., and the Milwaukee consignee notified of arrival at 6:00 a. m. on the same day; that unloading by consignee began at 7:20 a. m., May 14. 1935; that the shipment consisted of 465 bushel baskets of cucumbers. Mr. Lerner testified that the eucumbers were grades Is, 2s and 3s; that he supervised the inspection and grading, and that the cucumbers were of a proper grade and in good condition when loaded. Charles Cohen, a member of plaintiffs’ firm, testified that the cucumbers in this car were sold to Gold, Hoffman & Post, Inc., at Milwaukee; that he saw the car at Milwaukee the day after its arrival' and before the cucumbers were unloaded; that he inspected the contents of the car; that “there were many covers upset and thrown all over the top; also many baskets squeezed on the north end of the car, the contents of the cucumbers bruised. The contents of the car was shifted about ten or fifteen inches.” The court admitted a copy of an invoice of the car to Gold, Hoffman & Post, Milwaukee. The invoice, dated May 11, 1935, showed 191 bushels at $1 a bushel, 212 bushels at 80 cents a bushel and 68 bushels at 60 cents a bushel, or a total of 471 bushels at $401.40. He further testified that Gold, Hoffman & Post refused to take the car, and that he then turned it over to them to sell “for our account.” Gold, Hoffman & Post rendered an account as to the car, which account was admitted in evidence. The account showed the sale of 465 bushels at $520.85, from which was deducted a commission of $36.46, cartage of $18.60 and freight charges of $285.32, leaving a balance owing to plaintiffs of $180.47. Presumably these figures represented the prices for which the various bushels were sold separately to retailers, or other purchasers, in small lots. The witness claimed a loss on the car of $220.93, representing the difference between $401.40, which they were to receive from the consignee, and $180.47, which they did receive. The witness testified that he inspected about 125 bushels; that he did not know the value of the 125 bushels in their then condition. He also testified as to the market value of cucumbers in 1934. He did not testify as to the market value of cucumbers in 1935> which is the shipment covered by the second count. Plaintiffs introduced a certificate of inspection by an inspector of the U. S. Department of Agriculture. He inspected the car at Milwaukee on May 13, 1935 at 3:25 p. m. He found that the load was shifted and that three bushels were tipped on the sides and showed about half of the cucumbers spilled on the floor, that 27 bushels were “slightly to badly crushed,” and also that “spilled cucumbers, also 5 to 15% contents of crushed baskets, noted above, are bruised or cut.” It is stipulated that on May 14,1935, the market quotations on cucumbers at Milwaukee showed “Texas bushels No. 1, $1.65, $1.75, Commercials $1.25 to $1.35.” It was also stipulated that the original seals were intact on arrival at Milwaukee. Clifford Derby, an inspector for the Western Weighing and Inspection Bureau, testified that he inspected the car and the contents on May 14, 1935, and made a record of the condition of the load. His record showed 44 baskets slightly crushed, 10 to 20 per cent damage; two baskets center bands broken, sides bulged out, 10 to 15 per cent damage; two baskets badly crushed, 45 to 55 per cent damage; six baskets half of contents spilled, 35 to 46 per cent damage, and that after the car was unloaded, one bushel was picked up and salvaged by employees. He testified that 465 baskets were unloaded from the car, and that 56 baskets showed some damage; that the balance of the baskets were in good shape; that he inspected about one-quarter of the undamaged baskets, and that he was able to say that the other three-quarters of the undamaged baskets were in good condition externally as they were going out of the car; that he inspected every basket that went out of the car. On cross-examination he testified that he looked inside of about 100 baskets, in addition to the 56 damaged baskets, and that he examined all of the baskets externally; that the damage to the baskets was scattered throughout the load, and that he did not know “what effect on market value physical damage would have.” William F. Schabarth, a fruit and vegetable inspector for the Western Weighing and Inspection Bureau, testified that he did not inspect the car but that he did receive the report, and that based on the market value of $1.70 per bushel, the money damage on the different packages was: 44 baskets, 15 per cent damage, loss $11.22, 2 baskets, 12% per cent, 42 cents ; 2 baskets, 50 per cent, $1.70, 6 baskets, 28 per cent, $3.84, making a total of $17.18, covering 54 baskets, and that if 56 baskets were damaged, as testified to by a witness, there would be a total damage of $18.88. On cross-examination, he stated that he had never sold cucumbers but was on the market every day. Samuel Egalnick, a witness for plaintiffs, testified in rebuttal that he was in the produce business for 20 years, and that when baskets of cucumbers were physically damaged, the market value would be decreased to even a greater extent. However, on cross-examination, he admitted that if some baskets of cucumbers arrived in a damaged car and neither the baskets nor the cucumbers were damaged, the fact that other baskets in the same car arrived in a damaged condition would not affect the market value of the baskets that were in good condition, providing the buyer did not know that the good baskets arrived in a car that had been damaged. We have summarized all of the evidence offered in support of the second count. The evidence in the record shows that 56 baskets were damaged. Plaintiffs apparently are claiming the sum of $220.93, based on damage to the contents of the entire car. If the cucumbers were sold at auction or in some other manner to indicate that they all came out of a damaged car, it is possible that a buyer would offer a lower price because they came out of a damaged car. Here, apparently, the cucumbers were sold by the consignee to various retailers and others who purchased in small lots. There is nothing in the record to show that these buyers knew that the cucumbers came out of a damaged car. The evidence is that the cucumbers that were not damaged were in good condition. In the absence of a showing to the contrary, there is no reason why the cucumbers that were not damaged and which came out of a damaged car should have a lower market value than cucumbers which came out of an undamaged car.

Plaintiffs ask us to consider the distinction between physical damage and commercial damage, and that in calculating the loss sustained, such loss must be based On market values, and that the damage should be based on the difference between the fair and reasonable market value of the commodity in good condition at the time and place of arrival, and the fair and reasonable market value of the commodity in the condition in which it did arrive. That statement is not challenged. However, in order to determine the condition in which the cucumbers arrived, it is necessary to determine the physical damage, as the market value of the damaged cucumbers is necessarily determined by the extent of the damage.

The cause of action set out in the first count is barred by the limitation provision in the bill of lading, and the only damage shown by the evidence supporting the second count is the sum of $18.88. For the reasons stated, the judgment of the municipal court of Chicago is reversed and judgment is entered here for the plaintiffs and against defendant in the sum of $18.88, with costs taxed against plaintiffs.

Judgment reversed and judgment here for plaintiffs for $18.88 with costs taxed against plaintiffs.

Denis E. Sullivan, P. J., and Hebel, J., concur.