text:
    Norman A. Hoefeld and Helen Pfaelzer, Appellants, v. Sixty-third and Halsted Realty Company et al., Appellees.
    Gen. No. 39,019.
    Opinion filed March 24, 1937.
    Lbderer, Livingston, Kahn, Adler & Adsit, of Chicago, for appellants; Charles Lederer, Archie H. Siegel and Sigmund Livingston, of counsel.

      Clausen, Hirsh & Miller, of Chicago, for certain appellees.
    Pritzker & Pritzker, of Chicago, for certain other appellee; Nicholas J. Pritzker and Bichard Weinberger, of Chicago, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This was an action brought in the circuit court on a complaint filed by plaintiffs against defendants for an injunction and other equitable relief and a decree was entered in that court dismissing the complaint for want of equity.

In the bill of complaint filed herein plaintiffs, Norman A. Hoefeld and Helen Pfaelzer, allege that one Albert Hoefeld, their father, now deceased, on November 8, 1926, entered into a written contract with Gfeorge Lenz, Christopher H. Dehning and Peter W. Meyn to purchase a leasehold estate for the sum of $500,000 from the said Gfeorge Lenz, Christopher H. Dehning and Peter W. Meyn; that said leasehold estate was dated March 6, 1922 and was recorded March 10, 1922, running for a term of 99 years commencing May 1, 1934 and ending April 30, 2033; that the property which was the subject matter of the lease was located at 63rd and Halsted streets in the city of Chicago, Illinois; that the purchaser made a down payment of $125,000, and agreed to pay the balance to the Chicago Title and Trust Company, as trustee, as follows:

$30,000 on the first day of November, 1928;

$30,000 on the first day of November, 1929;

$30,000 on the first day of November, 1930;

$30,000 on the first day of November, 1931;

$30,000 on the first day of November, 1932;

$225,000 on or before the 30th day of April, 1934.

The bill of complaint further alleges that the sellers agreed to transfer by a complete instrument of assignment the leasehold estate created as aforesaid, and all of the sellers’ rights, title or interest in and to the building and improvements thereon, to the Chicago Title and Trust Company, as trustee, pursuant to the terms, covenants and conditions of a trust agreement to be executed coincidently with the execution of the agreement of sale; that the parties further agreed that the rights of said sellers and purchaser in and to said leasehold estate, until the full payment of said purchase price is completed, are truly set forth in said trust agreement and that the sellers shall deposit with the Chicago Title and Trust Company, as trustees, a guarantee policy guaranteeing the title in the sellers as of the date of November 8, 1927.

At the same time the contract to sell the leasehold was made, a tripartite agreement was entered into between the parties with the Chicago Title and Trust Company, by which George Lenz, Christopher H. Dehning* and Peter W. Meyn, were the parties of the first part; Chicago Title and Trust Company, trustee, party of the second part; and Albert Hoefeld, party of the third part. After reciting that the parties of the first part were the holders of a 99-year leasehold and had sold the same to the party of the third part, Hoefeld, this tripartite agreement sets forth that said third party had agreed to purchase the same for $500,000, the said Chicago Title and Trust Company, party of the second part, agreed to hold the title to the leasehold in trust for the others for the uses and purposes and subject to all of the terms, covenants, conditions, stipulations and provisions as contained in the trust agreement; that said trust company, party of the second part, was to receive from said third party, Hoefeld, the sum of $30,000 on the first day of November, 1928, and a like amount, each, on the first days of November, 1929, 1930, 1931 and 1932 and the sum of $225,000 on or before April 30, 1934, as the deferred payments agreed to be paid by third party as the complete purchase price of said leasehold estate, and when said sums of money are received by said second party it would pay over to each of the three said first parties one-third of the money so received by the second party. The said trustee, second party, further agreed upon receipt of the full purchase price to assign the said leasehold estate to said third party, the purchaser thereof, Hoefeld, subject to all the conditions and to assume all the promises and covenants in the lease to be kept and performed by the lessee and to be bound personally to comply with them.

The agreement of the trust company further provided that if the said third party, Hoefeld, shall fail to make the first five payments at the time required to be made by said contract and the terms thereof, and such default shall continue for a period of 60 days after the same shall become payable, then the second party shall assign to said first parties the said leasehold estate so acquired by it, and shall deliver to said first parties the original indenture of lease and this trust shall then end; that if the said third party shall fail to" pay the sum of $225,000, required to be paid on the 30th day of April, 1934, then the second party shall assign to said first parties the said leasehold estate so acquired by it, and shall deliver to said first parties the original indenture of lease and this trust shall then end. All instalments on the purchase price which shall not be paid when due shall bear interest at the rate of five per cent per annum from the date when same is payable until the same is paid.

The agreement further provided that until there shall be a default in the payments to be made by said second party, that said first parties shall have no interest in the leasehold estate, but only in the funds derived from its sale, and until the full and complete payment of the purchase price of the leasehold estate by said third party, Hoefeld, he too shall have no interest in said leasehold estate, and is limited to his right to acquire the full and complete ownership of such leasehold estate only upon his paying the purchase price as provided in the original contract at the time specified therein. In the event the third party shall default in the payment of the purchase price as required, the first party shall become repossessed of said leasehold estate by an instrument of assignment from the trustee. The first parties, sellers, may retain all payments which have been made by said third party as part of the purchase price, the same to be retained by said first parties as liquidated damages, it being agreed between the first and third parties that the amount of such payments made by the third party on account of purchase price is compensation to first parties for their refraining from an attempted sale of said leasehold estate and keeping the same off the market, and the said third party shall have no right, title, claim or demand to said fund so paid.

Then follows an agreement that in the event of a litigation involving the trustee, the said first parties will pay all costs and attorney’s fees incurred or imposed on the second party in connection with such litigation. Said third party, by joining in the execution of that .instrument agreed to pay the sums of money required by him to be paid, as payment of the deferred portion of the purchase price of said leasehold estate when same became due and declared that the terms thereof were in compliance with his contract of purchase of the leasehold estate, by and with the first parties and that the rights of both the first parties and himself are as stated in the agreement. The foregoing to be binding upon and inure to the heirs, personal representatives and assigns of the parties.

The admitted facts show that Hoefeld, the purchaser, paid to the defendants $125,000 in cash at the time said contract was executed and on November 1, 1928, he paid $30,000 in cash to the Chicago Title and Trust Company; that he died testate on August 24, 1929, and that all his rights and interests under said contracts were devised and bequeathed to his widow, Sadie Hoefeld; that said Sadie Hoefeld on November 1, 1929, paid $30,000 to the Chicago Title and Trust Company, trustee, and on November 1, 1930, she paid $30,000 to said Chicago Title and Trust Company, as trustee, and also on November 1,1931, she paid $30,000 to said trustee; that the total sum paid by Albert Hoefeld, now deceased, and his widow, Sadie Hoefeld, was $245,000; that on January 23, 1932, Sadie Hoefeld assigned all her right, title and interest in said contracts to her two children, Norman A. Hoefeld and Helen Pfaelzer, plaintiffs and appellants herein.

The bill further alleged that Albert Hoefeld during his lifetime did not enter into possession and that the property up to this time had been rented and that none of the rentals was paid to Hoefeld or his widow, or to the plaintiffs; that on January 13, 1934, plaintiffs received a communication from the Chicago Title and Trust Company, trustee, notifying them of the agreement that had been entered into by their father, Albert Hoefeld, with the said Lenz, Dehning and Meyn aiid stating that on January 20th, they proposed to.convey and assign all the trust’s right, title and interest in and to said leasehold estate and the buildings and improvements thereon to Sixty-third and Halsted Realty Company, a corporation, in accordance with the terms and provisions of the trust agreement, and in particular the provisions of Articles Third and Fifth thereof, as a result of the default existing in the payment of $30,000 which was due on November 1, 1932. The interest of Lenz, Dehning and Meyn had been assigned to the Sixty-third and Halsted Realty Company.

The bill further alleges that that part of the contract which provides that all payments which were made by the purchasers shall be retained by the parties of the first part of said contract as liquidated damages, is contrary to public policy; that the only sum due and not paid is $30,000 and prays that the Chicago Title and Trust Company be enjoined from assigning the leasehold estate unless it shall first pay to the plaintiffs the sum of $245,000 or such sum as the court may determine is due as may seem just and equitable. Sixty-third and Halsted Realty Company, a corporation, had become successor by assignment of all the rights, title and interest of Lenz, Defining and Meyn, the sellers of the lease to Hoefeld.

A motion was made before the trial court to dismiss the said bill of complaint, which motion was overruled, and the court ordered that an answer be filed herein.

Defendants’ answer set forth that on February 28, 1934, the Chicago Title and Trust Company, trustee, in pursuance of said trust agreement, sold, transferred, assigned and set over to Sixty-third and Halsted Realty Company, a corporation, that certain leasehold estate hereinbefore described.

The answer further set up that plaintiffs had failed to pay the sum of $30,000 to the Chicago Title and Trust Company on November 1,1932, and that because of such default for over a period of 60 days after same became due, the agreement under which the original indenture of lease was deposited with the Chicago Title and Trust Company, as trustee, was declared to be at an end and the original indenture of lease was thereafter surrendered to Sixty-third and Halsted Realty Company the successors in interest to the original lessors; that the plaintiffs have at no time offered to pay the sum of $30,000 which became due on November 1, 1932, nor have the plaintiffs offered to pay the sum of $225,000, which was due on or about April 30, 1934.

The answer further admits that no part of the $245,000 paid has been repaid to the plaintiffs and that the plaintiffs are not entitled to the return of any moneys paid pursuant to the terms of the contract.

The answer denies that any of the terms and provisions of said agreement are contrary to public policy and denies that it is inequitable or unconscionable for the defendants, Lenz, Dehning and Meyn to retain the $245,000; denies that the trustee has no right to convey and assign its right, title and interest to the defendant Sixty-third and Halsted Realty Company, without first reimbursing the plaintiffs with the sum of $245,000, and that the trustee acted in pursuance of the demand of the successors in interest of the original lessees and in all respects complied with the terms and provisions of the agreement.

The answer further denies that plaintiffs have an equitable interest to the extent of $245,000, or any equitable interest of any kind in said leasehold and denies that the leasehold at its fair market value today is largely in excess of the total yet due under the terms of the contract.

Thereafter plaintiffs amended their bill of complaint, alleging that it was the intention of the parties to said agreement and the legal effect thereof was the transfer of the equitable title to said leasehold to Albert Hoefeld, since deceased, with a mortgage taken back as part of the purchase price to be thereafter paid and that said transaction was and is in effect an equitable mortgage for part purchase price, and that the rights, titles and interest of the plaintiffs cannot be cut off or defeated by any conveyance made by said Chicago Title and Trust Company, trustee, to said defendants.

Thereafter the defendants were ruled to answer said amended bill and, after their motion to strike had been overruled, they denied all the allegations of said amended bill and adopted their answer heretofore filed to the complaint as their answer to the complaint as amended.

Defendants in their answer deny that the intent of the parties to said agreement and the legal effect thereof was the transfer of the equitable title to said leasehold to Albert Hoefeld; deny that said transaction was in effect an equitable mortgage for part purchase price; deny that the rights, titles and interest of plaintiffs cannot be cut off or defeated by any conveyance made by said Chicago Title and Trust Company, trustee, to said defendants; deny that any assignment or transfer of said leasehold by said Chicago Title and Trust Company would be in direct violation of the statutes of Illinois.

The bill of complaint as further amended alleged that the title to the real estate herein involved became incumbered by the lien for unpaid general taxes in the sum of $51,000; that Goldblatt Bros. Inc., claim to have an interest in said property by virtue of a lease entered into with Sixty-third and Halsted Realty Company, which purported lease was made after the filing of this cause of action.

The evidence shows that Goldblatt Bros. Inc., was made an additional party and filed an answer to the bill which, among other things, alleged that it had no information as to the assignment set forth in paragraph 5 of the complaint. The answer further denied that plaintiffs had an equitable interest in the leasehold estate to the extent of $245,000; admits that the Goldblatt Bros. Inc. was in possession under a lease and denies that the interest of the Sixty-third and Halsted Realty Company is subordinate or inferior to the plaintiff’s interest.

Most of the evidence introduced at the hearing was by stipulation. No testimony as to the intent of the parties was offered.

Witnesses testified that the value of the leasehold was between $400,000 and $500,000. Upon the hearing the bill was dismissed for want of equity at plaintiffs’ costs.

Plaintiffs contend that the bilateral contract for the purchase of the 99-year leasehold and the tripartite contract and the transfer of the leasehold estate to the trustees, created in the vendors an express vendors’ lien for the unpaid purchase price and that such vendors ’ lien is in fact an equitable mortgage and that the same is void under the statutes of Illinois and that the sellers of the equity should have commenced a suit for the foreclosure of the vendors’ lien; that even if the contract did not create an express vendors’ lien that the time essence clause in the contracts was waived by not taking action for nearly a year; that the notice of forfeiture by the trustee to plaintiffs was unreasonable and insufficient; that the payments made are agreed and liquidated damages and should be held in equity to be a penalty.

Defendants contend that this was an ordinary contract between vendor and purchaser and that upon default in the payment of any of the unpaid purchase price, the vendors had the right to declare the forfeiture and have the leasehold estate reconveyed to them; that the successors and assigns have the same rights; that the agreement concerning liquidated damages is not a penalty; that there was no waiver of the' time essence clause and that the notice given by the trustee of forfeiture was sufficient; that the 99-year leasehold was personal property and not real estate; that the statutory provisions prohibiting the sale or conveyance by mortgagee or trustee upon default in payment, does not apply in the instant case.

In this case the successors to the persons who violated the contract by its terms, filed a bill in a court of equity, asking that an injunction be issued to prevent the other parties to the contract from carrying out the balance of the contract. No charge of fraud, accident or mistake is made in the bill and the prayer contains a rather indefinite request that they should not only be assisted in refusing to carry out their contract, but that the other parties thereto should be compelled to return the money which they had already received, or as much thereof as the court shall deem proper.

Plaintiffs contend that the contract is not what the language says it is, but is something else. The main contention of plaintiffs is that the contract is an equitable mortgage and not what it purports to be. According to the terms of the contract the rights of the parties upon default were definitely fixed by the following language:

“ . . . and until the full and complete payment of the purchase price of the leasehold estate by the said third party, at the time in said contract and herein stated, he shall have no interest in said leasehold estate, but his interest is limited to the right to acquire the full and complete ownership of such leasehold estate, upon his paying the purchase price provided in said contract at the time specified therein.”

Every contingency that could possibly happen in the future evidently was in the minds of the parties at the time the contract was signed, and was covered by the language of the contract. This very question which plaintiff now raises was anticipated and disposed of by the language above quoted.

Paragraph 5 of the contract provides:

“Fifth : In the event, that the said third party shall default in the payments of purchase price, as hereinbefore required, then the first parties shall become repossessed of said leasehold estate, by an instrument of assignment from the second party. The said first parties may retain all payment which may have been made by said third party (as part purchase price) as first parties’ liquidated damages, it being hereby agreed between the first and third parties that the amount of such payments made by the third party on account of purchase price is compensation to first parties for their refraining from an attempted sale of said leasehold estate and keeping the same off the market, and the said third party shall have no right, title, claim or demand to said fund so paid.”

This language quite effectually disposes of the prayer for the return of the money.

The eighth paragraph of the contract provides:

"... The said third party, . . . does hereby declare that the terms hereof are in compliance with his contract of purchase of the leasehold estate, ...” This paragraph shows that plaintiff knew the contents and terms of the contracts and the legal effect of signing same.

Courts of equity have no power to substitute a different contract in the place of the one actually made, but will presume the interest of either party to the contract is expressed in the language thereof. Express words are not required to create an equitable mortgage where the intention to create such a lien is evident, but it must clearly appear from the instrument, or the surrounding circumstances at the time of the entering into the same, that the maker of the instrument intended the property therein described to be held, given or transferred as security for the obligation. Hibernian Banking Ass’n v. Davis, 295 Ill. 537, 538.

In the instant case no evidence was introduced showing that, at the time of the signing of these contracts, there was any intention to do otherwise than the language of the contract implied. It is a contract to purchase, a 99-year lease to be delivered under certain circumstances and to deliver same upon the completion of the payments, otherwise, the said lease of the property is to be returned to the seller. We do not believe that it has been shown that the elements of an equitable mortgage appear from these circumstances.

The contract further provides that if the purchaser should fail to complete his payments, the amount that he paid should be retained by the seller as liquidated damages, and reads as follows: “The said first parties may retain all payments which may have been made by the said third party (as part purchase price) as first parties’ liquidated damages, it being hereby agreed between the first and third parties that the amount of such payments made by the third party on account of purchase price' is compensation to first parties for their refraining from an attempted sale of said leasehold estate and keeping the same off the market, and the said third party shall have no right, title, claim or demand to said fund so paid. . . . ” There is nothing ambiguous or equivocal about this language. It is plain and fully states the rights of the parties as they understood them at the time the contract was entered into.

Counsel for appellant calls attention to the fact that the court should take judicial notice of the financial depression through which the country has just passed, intimating that because of that the contract should not be enforced as written, but that the money that has been paid should be returned. No evidence has been offered that plaintiffs were affected by the depression or were unable to pay the amount due.

In Keogh v. Peck, 316 Ill. 318, at page 325, the court said: “The object of courts of equity, as well as courts of law, is the enforcement of contracts rather than their evasion, and where a valid contract exists for a sale of land a court of equity will enforce it as a matter of right where it was fairly and understandingly entered' into and no circumstances of oppression and fraud appear. (Miedema v. Wormhoudt, 288 Ill. 537.) In considering the fairness or hardship of a contract the usual rule is to decide those questions with reference to the time when the contract was made, unless the delay in carrying it out is caused by the person seeking performance. The mere fact that the value of the property contracted for has increased or diminished since the contract was executed ordinarily will not warrant a refusal to carry out its terms, in the absence of circumstances indicating fraud or bad faith. Anderson v. Anderson, 251 Ill. 415.”

No evidence was introduced in this case to show that the purchaser was overreached or that he had in any way been deceived or that a mistake had been made as to the amount stipulated as liquidated damages.

In Weiss v. United States Fidelity & Guaranty Co., 300 Ill. 11, the court said:

‘ ‘ The burden of proof in such case is on the defendant to show that the contract provided for a penalty and not for liquidated damages, where there is nothing upon the face of the contract that requires the court to make the legal finding that the provision is for a penalty. Such a contract is prima facie evidence that the parties have stipulated and agreed on the actual amount of damages that ought to be recovered for a breach, and in the absence of evidence to the contrary the damages will be held to be liquidated damages. Selby v. Matson, 137 Iowa, 97; Harper v. Tidholm, 155 Ill. 370.”

In these contracts, time was the essence thereof and as was said in the case of Montana Wheat Land Co. v. Danaher, 225 Ill. App. 364, at pp. 372, 373 (affirmed in 308 Ill. 620): “The parties agreed that time was of. the essence of the contract, and under such circumstances a court of equity cannot relieve a purchaser who has forfeited his rights under the contract, where no fraud, accident or mistake has intervened.”

Nothing could be gained by answering in great detail the various questions raised by the counsel in this case. As we view the situation, this is a simple contract, a saleable leasehold which was to be delivered upon the completion of the purchase price. It was definitely agreed that neither party should have any interest in the subject matter excepting on behalf of one, the right to receive the money, and, on behalf of the other, the duty to pay and at the completion of such payments the contract would be consummated. The contract anticipated that a default could occur and made a provision as to what should be done in that event. The contract further anticipated the question of damages that might be suffered by the seller, especially concerning withholding the sale of same from the market, and provided therefor. There is no offer on the part of the plaintiffs to do equity, although confessedly they are in default according to the terms of the contract and still owe money on account of such default. Parties who seek the aid of a court of equity must allege and prove that they are not the cause of the situation of which they complain. It should be borne in mind that at no time did Hoefeld obtain any title in or right to possession of this property as this could not be accomplished until full payment was made. The various agreements which were entered into were more in the nature of conditional sales contracts with no right to possession, by the purchaser, or otherwise, until full payment had been made in compliance with the terms of the contract.

In order to grant the plaintiffs the relief which they ask, it would be necessary to make a new agreement between the parties which is not one of the functions of a court of equity.

We are of the opinion that the chancellor of the circuit court was right in his decision and the decree of that court is hereby affirmed.

Decree affirmed.

Hebel and Hall, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Denis E. Sullivan

license: Public Domain

text:
    Ruby R. Goodman, Administratrix of the Estate of Howard F. Goodman, Deceased, Appellee, v. Chicago, Burlington and Quincy Railroad Company, Appellant.
    Gen. No. 39,049.

      Opinion filed March 24, 1937.
    Rehearing denied April 12, 1937.
    Gardner, Foote, Morrow & Merrick, W. A. Morrow, Walter M. Fowler and C. W. Krohl, all of Chicago, for appellant; J. C. James, of Chicago, of counsel.
    Samuel Cohen, of Chicago, for appellee.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This suit was brought under the Federal Employers’ Liability Act, Ill. State Bar Stats. 1935, ch. 114, UU 321-329, in which the plaintiff, suing as administratrix of the estate of her deceased husband, claimed damages on account of his death, which, it is alleged, was caused by the negligence of the defendant. The verdict of the jury found the defendant guilty and assessed the damages at $30,000 in plaintiff’s favor. The jury also answered a special interrogatory as to the amount of damages they “deduct” caused by the contributory negligence of the deceased, as $20,000. The court entered judgment upon the verdict against defendant for $30,000.

Plaintiff contends that defendant’s negligence consisted in drawing coal cars out from a spur track onto the main line in front of the train driven by plaintiff’s intestate without first ascertaining that the train driven by decedent was approaching; that it was a custom for crews in charge of yard engines pulling coal cars from spur tracks onto the main line to first call up the operator at the next station and ascertain from him whether or not the main line might be occupied without delay to trains approaching thereon; that it was the duty of said crew in charge of said engine and coal cars, in the event they pulled out upon the main track, to give notice or warning to the decedent of such fact in time for him to have stopped his train and thus prevented the collision; that defendant was guilty of negligence in the respects mentioned and that decedent was free from contributory negligence.

Defendant contends that the place of the accident was within what was known and designated as “Yard Limits ’ ’; that the train driven by decedent was a second-class train; that a rule of the company, with which the decedent was familiar, permitted the main track within yard limits to be occupied by trains, engines and cars, including yard engines and cars drawn by them in their work within yard limits, without reference to the approach of second-class trains or any train other than first-class trains; that the rule also required second, inferior class and extra trains to move within yard limits prepared to stop unless the main track was seen or known to be clear; that the decedent violated this rule, and the accident resulted therefrom; that another rule of the company provided that a signal imperfectly displayed, or the absence of a .signal where a signal is usually shown, must be regarded as the most restrictive indication that can be given by that signal; that at the time of the accident there existed to the west of the main track immediately south of the point where the spur track in question connected with the same, a switch stand between seven and eight feet high, at the top of which were four lamps, two red and two green; that the two red lamps faced in either direction toward approaching trains on the main track when the switch was set for cars coming off of the spur track onto the main line; that the green lights were set in either direction toward approaching trains on the main track when the switch was set for traffic to proceed along the main line; that at the time of the accident the switch was thrown showing a red light facing north towards the train driven by decedent, indicating that the switch was open for traffic off the spur track onto the main line; that the decedent was familiar with this switch signal and knew its location; that he violated the above-mentioned rule in running his train against the red light, whether he saw the same or not; that the red light required decedent to stop his train; that the absence of such signal or the imperfect display thereof likewise required decedent to stop his train before reaching the point where the signal was located; that the violation of said rules, as aforesaid, was the sole proximate cause of the accident, resulting in the death of plaintiff’s intestate; that plaintiff’s intestate assumed the risk of a collision in driving his train through the yards on the occasion of the accident; that plaintiff’s intestate was, in any event, guilty of contributory negligence, requiring a reduction of the damages proportionately, on account of such contributory negligence, under the provisions of the Federal Employers’ Liability Act.

The evidence shows that plaintiff’s intestate was an engineer on one of defendant’s freight trains, which was being driven by him in a southerly direction over defendant’s tracks near Freeman, in Williamson county, Illinois; that defendant’s railroad operated through Illinois, and on its railroad from Centralia, Illinois, to Paducali, Kentucky, main line track, hauled freight trains from Chicago to Padncah; that decedent took charge of operating the engine at Centralia; that from Centralia to Herrin, a distance of 53 miles, its right of way which its main line traversed was in part by it designated as railroad yards, continuous with but a few intervals; that from Sesser south to Herrin, a distance of 20 miles, defendant characterized as railroad yards and railroad limits continuously excepting for a few crossings; that the accident happened at Freeman, a station two miles north of Herrin, on the main track of the railroad.

Rules and a time table were introduced to show that this train known as No. 70 was a second class train, which under the said rules, was not entitled to the same right of way as a first-class train; Other testimony showed that this train was a special train and was to run faster than the ordinary second class train.

The evidence further shows that at the time of the accident the deceased was 47 years of age and his family consisted of a wife and three children; that prior to the accident the deceased had worked at Freeman, Illinois, as an engineer operating an engine drawing cars from the adjacent coal mines; that the distance from Centralia to Herrin is about 53 miles; that plaintiff’s intestate was in charge of an engine drawing a freight train which ran over this division from Centralia south to • the Kentucky line. This train originated in Chicago, and deceased and his crew took charge of the train at Centralia for the run to the finish; that this train was known as the “Hot Shot”; that it was a second class train, inferior to passenger trains, but its time schedule required it to run faster than any train on that division, even faster than the two passenger trains; that the crew were required to operate this train all through the yards from Centralia to Herrin at a speed of approximately 40 miles an hour; that according to the time table, they were required to maintain an average speed of 34.4 miles per hour; that on the night of the accident the train was three hours late out of Centralia and plaintiff’s intestate and his crew were in charge up to the point where the accident occurred, near Freeman; that the accident occurred in the block between Christopher on the north, nine miles from Freeman and Herrin Junction two miles south of Freeman.

The evidence further shows that by the time plaintiff’s intestate reached Christopher his train had lost 10 minutes more and he was given a written order at Christopher by the block operator. That order reads as follows:

“No. 70 has rights over all trains North Zeigier Jet. to Neilson and will hold main line at Neilson.”

The evidence further shows that plaintiff’s intestate received another order or permit card which advised him to expect a light engine in the block known as Extra 803 going south between Zeigier and Herrin; that ordinarily the train which Goodman was on would stop at Christopher, but the operator gave Goodman the signal to continue and not stop, delivering the orders while the train was in motion by means of a hoop, a contrivance used for that purpose; that Goodman continued past Christopher until his train reached Freeman, where it crashed into part of a long train of loaded coal cars that were being drawn onto the main track by another crew; that at the time of the accident no notice or warning of any kind by light, signal or otherwise had been given or communicated to the crew of No. 70 of the movement of this other train on the track.

The evidence further shows that for a period of many years these coal trains came in on the main track at Freeman from these mines, but before coming upon the track it had been the custom or practice to telephone to the operator at the station for information as to traffic before proceeding on to the main track; that telephones had been installed for that purpose; that the foreman of the switch of this coal train crew had done this telephoning for 10 years, several times a day, and never failed to telephone until this one occasion, when he ordered and put this coal train in on the main track without telephoning to find out if there was any other train likely to come along; that there was a switch light at the point where this train was entering the track, but it was so low that the cars moving from the mines hid it from trains coming from the north; that the coal train consisted of 33 loaded cars, an engine and a caboose which was being moved from three to five miles an hour on to the main track; that Goodman’s train was supposed to have been moving along between 30 and 35 miles an hour; that the air brakes on the coal train had been connected up and the marker lights — the tail lights on the rear car— put up.

Waring, the conductor on the train on which Goodman was the engineer, testified in part as follows:

“I was up in. the cupola looking ahead. I was still looking ahead at the time of the impact or collision. There was no red light on my side. The switches are on the right-hand side. There are two switches which were involved in that movement. I did not see any red light. I did not see any sign of danger at all. I did not see anything unusual at all. If I had, I would have set about warning the crew and the engineer. I, as a conductor, have something to say to the engineer about the speed of the train. There was no occasion to say anything about it on that day. That was the usual and proper speed through, that piece of track. . . . The first signal is a distant tower; then the derail board, and then the operators’ board that we receive the orders on. In other words, the clearness that night, I could see those boards fully a good mile. I suppose the head end conld see it just as far as I could. Those boards are lighted. The distant board was green. That indicates you have a clear derail. It has two positions, green and yellow. Yellow is the caution. The derail board was green and the home board was red and yellow, that is the board we have to receive the clearance and the orders of before we can pass it. We did not stop at Christopher; we went through at the rate of thirty-five miles an hour. We had no occasion to stop. The operator was out on the platform with his lantern; and the orders were in the hoop and I gathered them. The lights were all in our favor.”

It further appears from the evidence that according to the Rule Book of the company, on page 6 thereof, under the heading of “Definitions” appears the following :

“Train. — An engine or motor car or more than one engine or motor car coupled, with or without cars, displaying markers.”

Rule S-71 reads as follows:

“S-71. A train is superior to another train by right, class or direction.

“Right is conferred by train order; class and direction by time table.

“Right is superior to class or direction.

“Direction is superior as between trains of the same class.”

“S-72 is as follows:

“D-72. Trains of the first class are superior to those of the second; trains of the second class are superior to those of the third; and so on.

“Trains in the direction specified by the time table are superior to trains of the same class in the opposite direction. ’ ’

Rule D-72 is as follows:

“D-72. Trains of the first class re superior to those of the second; trains of the second class are superior to those of the third; and so on.”

Buie 73 reads as follows:

“73. Extra trains are inferior to regular trains.”

Buie 82, which, has to do with the movement of trains, reads as follows:

“82. Time-table schedules, unless fulfilled, are in effect for twelve hours after their time at each station. Begular trains more than twelve hours behind either their schedule arriving or leaving time at any station lose both right and schedule, and can thereafter proceed only as authorized by train order. ’ ’

Defendant contends that the coal train was not a regular train, but merely a switch engine operating in what is known as “Yards.” We do not believe the evidence shows that the engine, cars and caboose, all connected together, moving from the side tracks at Freeman, constituted a switch movement as distinguished from a train movement. As was said in the case of United States v. Chicago, Burlington & Quincy R. Co., 237 U. S. 410:

“The work in which they were engaged was not shifting cars about in a yard or on isolated tracks devoted to switching operations, but moving traffic over a considerable stretch of main-line track, — one that was a busy thoroughfare for interstate passengers and freight traffic. . . . trains moving between them are not engaged merely in switching operations, but are engaged in transportation. ...”

According to the rules of the company, this train was fully equipped as shown by the evidence. United States v. Chicago, Burlington & Quincy R. Co., supra.

It is next contended that the intestate, being familiar with the yard, having worked there, should have been on the lookout for the possibility that the said coal train might come out onto the main track. There were no printed rules governing this movement. The custom or practice, however, had been to telephone to the operator at the next station to find out if there would be any danger if the train were to proceed on to the main track. Intestate would have a right to rely upon this known custom which had the force of rules.

It is the duty of the master to make, publish and enforce reasonable rules and regulations to promote the safety of servants, and as was said in Yeates v. Illinois Cent. R. Co., 241 Ill. 205: “It is the duty of a master conducting a business with different branches, to make, publish 'and enforce reasonable rules and regulations to promote the safety of servants, but in the absence of any rule governing a particular situation it is proper to consider the existence of an established custom with respect thereto.”

Counsel for the defense rely upon Rule 93, which provides as follows:

“93. Within yard limits, the main track may be used clearing first-class trains as prescribed by the rules.

“Second aiid inferior class and extra trains must move within yard limits prepared to stop unless the main track is seen or known to be clear. Trains carrying passengers must be protected as prescribed by Rule 99.”

At Christopher the engineer received an order heretofore set forth, telling him that the track was clear all the way through to Herrin and that he had the right of way. These orders, under the law, took precedence over the rules and it was his duty to obey them. He was far behind in the running time, according to the time table, and it appears they were arranging for him to make this time up by giving him a clear right of way. In order to obey the order he was required to run through the Freeman yard at the speed at which it is alleged he was traveling. Even though the orders which were received by plaintiff’s intestate were inconsistent with the rules, it was his duty to obey the specific order given to him rather than the general rule.

As was said in Bailey on Personal Injuries, Vol. 1 (2nd) p. 846:

“It was said if compliance with a general rule is rendered impossible by other and inconsistent orders given by the master to his employees, negligence cannot be imputed to the employee for not following the general rule. This was said and applied where it appeared that an engineer failed to comply with a rule requiring him to reduce the speed of his train, while running through a particular yard, so as to have it completely under control, and it also appeared that this could not be done if he conformed to the time table. It was held that the rule was modified by the time schedule. ’ ’

In Hall v. Chicago, B. & N. Ry. Co., 46 Minn. 439, the court at page 446 says:

‘13. The next point urged is that plaintiff was himself guilty of contributory negligence in' not reducing the speed of his train while running through the yard, so as to have it ‘completely under control,’ as required by the rule; which counsel claims means that the speed must not be greater than that at which the engineer can stop his train within the distance that he can see dang'er ahead. This rule, like many of the others, does not command the doing or not doing of a particular specific act, but is one calling for the exercise of judgment and diligence on part of the engineer, and must be construed in that view, and considered in connection with the other rules of the company, and the other duties and responsibilities imposed upon engineers. It would seem that the construction which plaintiff himself put upon this rule is a reasonable one; that is, that he should have his train so under control that he could stop it before reaching the danger point, if the proper signals were seasonably given him. But even if the rule, if standing by itself, might mean what defendant claims, yet, as to plaintiff, it was clearly modified by the schedule of time according to which these trains were required to be run, and were actually run, presumably with the knowledge and at the direction of the defendant’s governing officers. The plaintiff could not conform to the time-table, and at the same time keep his train ‘under complete control’ in the sense in which defendant claims that term is used in the rules. If compliance with a general rule is rendered impossible by other and'inconsistent orders given by the master to his employe, negligence cannot be imputed to the employe for not following the general rule. ’ ’

In the case of Rocco v. Lehigh Valley R. Co., 288 U. S. 275, 278, the court said:

“The Court of Appeals held, as a matter of law, that Boceo’s negligence was the primary cause of the accident, and therefore the petitioner could not maintain the action. This ruling was made in reliance upon the authorities of which Davis v. Kennedy, 266 U. S. 147, Unadilla Valley Ry. Co. v. Caldine, 278 U. S. 139, and Southern Ry. Co. v. Youngblood, 286 U. S. 313, are typical. These were cases where a member of a train crew was killed as a result of disregarding orders to wait at a given point until a train moving in the opposite direction had passed. In each of them the decedent’s negligence was the proximate and efficient cause of the accident; in each it was sought to show that the fatality was in part due to alleged negligence of some other employee in omitting to give the decedent an order which would have reminded him of the orders previously given and by which he was bound. In none was there any negligence on the part of employees operating the train moving in the opposite direction, with which the collision took place.”

In the case of Grand Trunk Western Ry. Co. v. Lindsay, 201 Fed. 836, at page 844, the court said:

“It is only when plaintiff’s act is the sole cause— when defendant’s act is no part of the causation — that defendant is free from liability under the act. ’ ’

It is next contended that plaintiff’s intestate violated Rule 27, which rule provides that the absence of a signal must be regarded as the most restrictive indication. The evidence shows that there were no signals of any kind indicating this coal train was being moved on to the track. The only signs or signals visible were the high signals or tower signals which indicated a clear track. Many of the coal cars making up this coal train from the mines were what is termed “high hoppers,” and, because of their height, the testimony shows that if there had been a red light displayed it would have been impossible for a person to see it from a train approaching* from the north. We can scarcely* believe that these switch lights were put there for the purpose of warning approaching main line road trains of danger. For, if they were to be used for that purpose, then they were placed in such a position that whenever danger was present, and they were needed most, that is when a train was using the switch to or from the coal mines, the lights could not be seen by a southbound train.

In the case of Fisher v. Chicago, R. I. & P. Ry. Co., 290 Ill. 49, it was said:

“Although the negligence of a locomotive engineer in failing to observe that there was no light at a closed switch leading to a turn-table may have been a proximate cause of the accident resulting in his death, such negligence is not the sole proximate cause where it is proved that the agents or employees of the railway company failed to perform their accustomed duties of opening* the switch and lighting* the signal lamp on the switch-stand. ’ ’

Had it been defendant’s intention to rely upon these switch lamps to give notice to an approaching train as to whether or not the track was being used, it was defendant’s duty to have the lamps placed at a sufficient height so that such light or lights could he readily seen by the engineer on an approaching* train under any and all circumstances.

Complaint is made that the court did not instruct the jury as a matter of law that the defendant was not guilty. In order to do that the court would have had to say that the actions of the plaintiff’s intestate alone were the sole proximate cause of the accident, which from the facts herein disclosed, he would not be justified in doing.

We do not believe the court committed any error in refusing to instruct the jury at the close of plaintiff’s case or at the close of all the evidence and we are of the opinion that this was a proper case to submit to the jury on all the facts.

Further complaint is made as to some of the other instructions given on behalf of plaintiff, but after carefully examining them and without discussing each one in detail, we believe the jury was fairly instructed as to the issues.

At the time of his death the deceased left surviving him Ruby R. Goodman, his widow, Janis M. Goodman, his daughter, and Howard E. Goodman, his son. When the jury returned their verdict they found that the defendant was guilty and assessed the plaintiff’s damages at $30,000 and of this total amount, they found that Ruby R. Goodman, the widow, sustained damages in the sum of $15,000; that Janis M. Goodman, the daughter, sustained damages in the sum of $5,000 and that Howard E. Goodman, the son, sustained damages in the sum of $10,000, making plaintiff’s total damages $30,000.

At the time the jury retired the court gave to the jury a special interrogatory at request of defendant to be answered by them, which reads as follows:

“The jury will, from the evidence and under the instructions of the Court, answer the following question by writing under the same, in the space provided therefor, your answer:

‘ ‘ Question: If from the evidence, and under the instructions of the court, you find that the plaintiff is entitled to recover, and further find that the deceased was guilty of negligence in the operation of his train, at and before the time of the happening of the collision resulting in his death, and that his negligence, if any, in this respect directly contributed to cause or bring* about the collision in question and his resultant death, then state what sum you deduct by way of damages on account of said decedent’s contributory negligence.

‘ ‘ Answer: Twenty Thousand Dollars. ’ ’

Plaintiff objected to the giving of the above interrogatory to the jury on behalf of defendant, and we think rightfully so. The purpose of giving a special interrogatory is to ask the jury.to decide some controlling question in the case which, if returned in the affirmative, would control the general verdict. In Chicago & A. R. Co. v. Harrington, 192 Ill. 9, at page 32 the court said:

“This interrogatory was properly refused, because an affirmative answer to it could not have controlled a general verdict had it been in favor of appellee.”

In addition to that the interrogatory asked the jury to state the amount they “deduct” by way of damages. As the Supreme Court of the United States said in the case of Seaboard Air Line Ry. v. Tilghman, 237 U. S. 499, at page 501:

“. . . where the causal negligence is attributable partly to the carrier and partly to the injured employe, he shall not recover full damages, but only a diminished sum bearing the same relation to the full damages that the negligence attributable to the carrier bears to the negligence attributable to both; the purpose being to exclude from the recovery a proportional part of the damages corresponding to the employee’s contribution to the total negligence.”

When the interrogatory asked the jury “how much they deduct” it was confusing* and misleading and should not have been given. In addition to that, if the jury had intended to find that plaintiff’s intestate was guilty of contributory negligence to the extent of $20,000, such finding* would have been against the manifest weight of the evidence.

As was said in the case of Norfolk & Western Ry. Co. v. Earnst, 229 U. S. 114, at page 120: “If the defendant relies upon the defense of contributory negligence, the burden is upon it to establish that defense by a preponderance of the evidence.”

In this case defendant failed to prove contributory negligence on the part of plaintiff’s intestate and any such finding, if it had been made by the jury, should have been set aside by the trial court as being against the manifest weight of the evidence.

It is contended that the verdict is excessive. The jury apportioned the damages as follows:

$15,000 to the widow;

5,000' to the 16-year-old. daughter, and

10,000 to the 4-year-old son.

The evidence presented here shows that during the last year of Goodman’s life he earned and was actually paid the sum of $2,331.25, and that he spent all his earnings on his family; that the expectation of life at 47 years of age is 22.83 years, and on that basis his future earning capacity was slightly more than $53,000. The jury had been instructed in effect by the court that as to the pecuniary contributions which the widow and children of the deceased might reasonably have expected from him, had he not been killed, the jury should allow the present cash value and in determining this present cash value, the jury should take into consideration “the highest rate of interest at which money presently paid to the plaintiff might be, with reasonable safety, invested.”

The amount the widow and children would have received, based on his annual earnings, as shown by the record, had he lived, would have been approximately $50,000.

In the case of Norfolk & Western Ry. Co. v. Holbrook, 235 U. S. 625, the court said:

“In the present case there was testimony concerning the personal qualities of the deceased and the interest which he took in his family. It was proper, therefore, to charge that the jury might take into consideration the care, attention, instruction, training, advice, and guidance which the evidence showed he reasonably might have been expected to give his children during their minority, and to include the pecuniary value thereof in the damages assessed. ’

We do not believe the damages fixed by the jury were excessive.

From a careful review of this record, we do not believe that the evidence does other than find for the plaintiff and the proof shows that the jury was'justified in arriving at its verdict and the court properly overruled the motions for a new trial and entered judgment on the verdict.

For the reasons herein given the judgment of the superior court is hereby affirmed.

Judgment affirmed.

Hebel and Hall, JJ., concur.


author: Mr. Justice Hall

text:
    Earl Schroeder, a minor by Florence Butler, his Mother and Next of Kin, Appellant, v. Fanny Campbell, Appellee.
    Gen. No. 38,793.
    Opinion filed March 24, 1937.
    Joseph Lustfield and William C. Greatman, all of Chicago, for appellant; Abraham W. Brussell, of Chicago, of counsel.
    Cassels, Potter & Bentley, of Chicago, for appellee ; Ralph F. Potter, George C. Bunge and Leslie H. Vogel, all of Chicago, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.

In this matter, a petition for leave to appeal from a judgment of the circuit court of Cook county, entered on February 8, 1935> was filed in this court under the provisions of sec. 76, Illinois State Bar Stats. 1935, ch. 110, if 204; Jones Ill. Stats. Ann. 104.076. Thereafter on February 19, 1936, an order was entered by this court allowing such appeal. Prior thereto, and on February 27,1935, a notice of appeal had been filed in the cause, in the circuit court of Cook county in the following words and figures: ,

“Please Take Notice that Plaintiff-Appellant in the above entitled cause hereby appeals to the Appellate Court of Illinois for the First District, from the judgment rendered in this cause in the Circuit Court of Cook County, Illinois, on the 8th day of February, A. D. 1935, whereby the Court entered a judgment in bar against the minor, finding him guilty of contributory negligence, and the finding and judgment entered on said 8th day of February, 1935, finding* the Defendant-Appellee not guilty.

“The Plaintiff-Appellant prays that the said judgment may be reversed and judgment entered in the Appellate Court in favor of the Plaintiff-Appellant, or, in the alternative, that said judgment be reversed and the cause remanded for new trial. ’ ’

On March 21, 1935, the following* was filed in the cause, in the circuit court of Cook county:

“You Are Hereby Notified that on the 20th day of March, A. D. 1935, there was filed in the office of the Clerk of the Circuit Court of Cook County, Illinois, in behalf of the Appellant (Plaintiff) in the above entitled cause, a Notice of Appeal, copy of which Notice of Appeal is hereto attached.

“Joseph Lustfield,

Wm. C. G-reatman,

McKenna, Harris & Schneider,

Attorneys for Appellant

(Plaintiff).

“Received a true copy of the foregoing notice, together with a true copy of the Notice of Appeal therein referred to, this 22nd day of March, A. D. 1935.

“Cassels, Potter & Bentley,

Attorneys for appellee

(Defendant).”

The notice here referred to does not appear in the abstract, but we will assume that it was filed, as stated. Each of the notices was filed in the circuit court within 90 days after the entry of the judgment.

On August 17, 1936, a motion was made by defendant, appellee, to dismiss the appeal heretofore allowed on petition for leave to appeal to this court, which motion was denied.

Since the aforesaid, the Supreme. Court of this State, in People ex rel. Bender v. Davis, 365 Ill. 389, No. 23,662 in the Supreme Court, has said:

“The right to appeal is absolute if exercised within ninety days from the rendition of the judgment, decree or determination of the trial court. Thereafter, and within the year, the appellant must show by affidavit that his appeal has merit and that the delay was not due to his culpable negligence. But if an appellant files notice of appeal in the trial court within ninety days he has taken his appeal and no delay exists. It follows that the appellant could not show by affidavit that the non-existent delay was not due to his culpable negligence. He has had the appeal the legislature intended him to have.

“The legislature also intended that judgments and decrees should become final within ninety days, but it provided against injustice by permitting a reviewing court to grant leave to appeal upon a proper showing within the remainder of the one year. This provision has no application to the case before us. There is nothing in the act authorizing a court of review to grant permission to an appellant to file its notice of appeal in the reviewing court after it had availed itself of the right, within ninety days, to file such notice of appeal in the trial court.”

In view of the holding of the Supreme Court, the order of this court denying the motion to dismiss the appeal, is vacated, and it is further ordered that the appeal be dismissed.

Appeal dismissed.

Demis E. Suhlivam, P. J., and Hebel, J., concur.


text:
    Thomas Horan and John Peterson, Appellants, v. The New Home Sewing Machine Company, Appellee.
    Gen. No. 38,881.
    Opinion filed March 24, 1937.
    Teller, Levit, Silvertrust & Levi, of Chicago, for appellants.
    B. S. Quigley and McKenna, Harris & Schneider, all of Chicago, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.

Suit was instituted in the superior court of Cook county by the plaintiffs against the defendant on August 6, 1935, for personal injuries said to have been sustained by plaintiffs through the alleged negligence of the defendant. It is further alleged that the act of defendant, upon which the suit is predicated, occurred in the City of New York, State of New-York, on August 31, 1932. To the complaint filed in the cause, the defendant filed a motion to dismiss upon the ground that the plaintiffs are nonresidents of the State of Illinois, and are residents of the State of New York, that the cause was commenced without filing a bond for costs, as provided by the statute, and that the action is barred by the statute of limitations of the State of Illinois. Upon the hearing, it was stipulated that the defendant’s motion to dismiss is based upon the failure of the plaintiffs to file a cost bond, and that the Illinois statute of limitations is a bar to plaintiffs ’ action. In the briefs filed by the parties, it is agreed that the limitation of time within which an action might be brought in the State of New York is three years, and in Illinois, two years. Upon the hearing, the court sustained the motion to dismiss and entered judgment against plaintiffs for costs. This appeal is from that judgment.

It is plaintiffs’ contention here that the action can be sustained because of the New York statute, which provides:

“Actions to be commenced within three years. The following action must be commenced within three years after the cause of action has accrued:

“An action to recover damages for a personal injury resulting from negligence.”

In the complaint filed in the cause, after reciting the facts upon which the cause of action is predicated, it is recited that prior to the running' of the statute of limitations of the State of New York, the defendant removed from that State s,o that service of process could not be had upon it.

In Warren v. Clemenger, 120 Ill. App. 435, an action was brought on promissory notes which were made and executed in Canada. Before certain of the notes became due, the defendant left Canada and resided in various parts of the United States, taking up his residence in the city of Chicago in 1891. The last of the notes sued on matured May 1, 1881, and the suit was commenced on these notes in Chicago in March, 1900. In holding that the 10-year period provided by the Illinois statute of limitations had run, and that the plaintiff could not recover, this court said:

“The statute affects the remedy merely and not the merits of the controversy. It is a statute of repose, and should be construed liberally so that the object for which it was enacted may be attained.” Citing 15 N. J. L. 171, and 93 Ill. 230.

There is no showing, whatever, as to why the action was not brought within the period allowed by the Illinois statute.

We are of the opinion that the Illinois statute of limitations is controlling, and that the trial court was not in error in dismissing the complaint. The judgment is affirmed.

Affirmed.

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


author: Mr. Justice Hail

text:
    Mary Ebbert, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 38,912.
    Opinion filed March 24, 1937.
    Rehearing denied April 12, 1937.

      Hoyne, O’Connor & Rubinkam, of Chicago, for appellant; Nathaniel Rubinkam and William S. Allen, of Chicago, of counsel.
    Haas & Leffmann of Chicago, for appellee; Harry L. Mitchell and Ferdinand J. Mann, both of Chicago, of counsel.
   Mr. Justice Hail

delivered the opinion of the court.

This is an appeal from a judgment of the superior court of Cook county against the defendant, the Metropolitan Life Insurance Company and in favor of Mary Ebbert, widow of Harry J. Ebbert, deceased, for the sum of $8,090.56 and costs of suit. The trial was before the court without a jury.

The action is predicated upon two life insurance policies issued to Harry J. Ebbert. Each contains what is referred to as a double indemnity clause which provides that in addition to the principal amount agreed to be paid to the beneficiary upon proof of death of the insured, an additional amount would be paid in case his death was the result “directly and independently of all other causes, of bodily injuries sustained through external, violent and accidental means,” and “that death shall not have been the result of self-destruction, whether sane or insane, or caused by, or contributed to, directly or indirectly, or wholly or partially, by disease, or bodily or mental infirmity.” In one policy, the amount of the additional indemnity agreed to be paid is $1,675, and in the other, $6,000. The principal death claims under both policies were paid.

Plaintiff’s contention is that the means or cause of the death of the insured was the administration to him of ether as an anesthetic in and about the performance of a surgical operation for the removal of the tonsils of the insured, and that as the direct result of the administration of the ether, the insured died. It is the claim of plaintiff that the means and methods employed by the physicians performing the operation were those usually and customarily adopted and used by physicians and surgeons in the administration of anesthetics; that the death was not the result of self-destruction, nor caused by or contributed, directly or independently, or wholly or partially, to disease, or to bodily or mental infirmity, but that an effect which is not the natural or probable consequence of the means which produced it, an effect which the actor did not intend to produce and which he cannot be charged with the design of producing, is produced by “accidental means.” We have quoted literally from the statement in plaintiff’s brief, and we presume the meaning is that plaintiff is entitled to recover under the terms of the policy upon the theory that the evidence adduced indicates that the insured’s death came about through “accidental means.”

Defendant admits the execution and delivery of the policies and the death of the insured, but denies that his death, directly and independently of all other causes, was the result of bodily injury sustained through “external, violent and accidental means,” insists that the death of the insured was the result of disease and bodily infirmity, and denies that the cause of the death of the insured was the administration of the ether to the insured as an anesthetic.

Harry J. Ebbert died on June 6, 1934, while undergoing an operation for the removal of his tonsils. It is in evidence that at that time, he was 52 years of age, weighed 188 pounds; that since the year 1924 he had played golf frequently, and that when playing golf, he walked several miles at a time; that he played golf two weeks before his death; that he was vigorous, that he had no shortness of breath, nor dizzy spells, and that he eould walk up several flights of stairs without evident fatigue, and that his breathing on such occasions was normal.

Dr. J. Gr. McNeil, a witness called by the plaintiff, testified that he had been practicing since 1921. After reviewing his experience and qualifications, this doctor testified that he specialized in surgery, and had performed a number of tonsillectomies, — somewhere between a thousand and fifteen hundred; that he examined the insured about June 3, 1934, for the purpose of determining his physical condition and in preparing for an operation for the removal of his tonsils, together with a submucous receptor in the nose of the insured; that at that time the witness gave the insured a physical examination and took a history of his past sicknesses and as to his general life; that at that time the insured stated to this witness that he had never had typhoid, pneumonia, scarlet fever, diphtheria or influenza, and that he had never had excessive diarrhea; that the insured then stated that he took exercise, and that he frequently played 18 to 36 holes of golf without being tired and without exhaustion. This doctor also testified in substance that the physical examination made of the insured by him consisted of taking the insured’s blood pressure, and that his blood pressure was “132 over 96”; that the examination of the insured’s throat showed a large pair of tonsils producing a sort of obstruction in the throat, and that he had a small deflected septum, and that this produced a lot of mucous, which dropped back into the throat and bothered him considerably, causing him to cough; that the chest and lungs of the insured were negative, and that the heart was negative; that when he examined the insured as to the condition of his heart, he had him run about the room for the purpose of determining whether the heart would shortly return to the normal beat, which it did; that the abdomen was negative; that, his reflexes were normal, and that the urinalysis and blood count were negative. This physician testified that by negative he meant that he did not find any positive findings of disease; that his heart tones were perfectly normal, and that the heart was not enlarged; that the examination of the insured’s abdomen indicated a negative history, and that the insured had no acute intestinal condition of any sort; that this examination occurred three or four days before the insured was operated upon. This physician then testified that he formed an opinion at that time that the tonsils should be removed, and that he could safely and perfectly perform such operation; that on June 6, 1934, he examined the insured before talcing him to the operating room, that he went over his chest and heart, and that at that time, the witness formed the opinion that the insured was physically all right to take the anesthetic and to be operated upon for the condition of his tonsils and septum; that he then removed the right tonsil and inserted a sponge or forceps to stop the hemorrhage, which usually occurs after such an operation; that the hemorrhage in the case of the insured was not severe, and that he removed the tonsil on the left side, and that the same conditions prevailed on the right side; that ether was administered to the insured by the drop method, and that during the time the patient was taking the ether, his respiration was normal, as well as his color; that he had given about two thousand anesthetics, and had observed it in several thousand cases and that he was able to determine whether the insured was being properly anesthetized, and that every patient is different under such circumstances, as to the amount of the anesthetic. He stated that he was present when they started to anesthetize the insured, and that the anesthetic was given to him by a Miss Kelly; that coagulation took place on the wound after about three and a half minutes; that the bleeding ceased, and that then the patient suddenly stopped breathing; that artificial respiration was given him, the rectum was dilated, that he was given stimulation by injection of sodium caffeine benzoate, that they gave him an injection of adrenalin into the heart, and that after possibly a half hour, they were unable to stimulate the respiration and that the patient was dead. This doctor testified that in his opinion, the insured died from a supersusceptibility or idiosyncrasy from ether that caused respiratory paralysis. Also, that he had an opinion that there was nothing in the man’s physical condition nor any “bodily infirmity of this man that would contribute to the cause of his death.”

Dr. Alfred D. Biggs, the coroner’s physician of Cook county, testified to the effect that he made a complete post mortem examination of the trunk of the body of the deceased, of the organs, chest and abdomen, and found that there were marked fatty changes in the liver; that there was a moderate hypertrophy of the myocardium, meaning the heart muscle; that there was passive congestion of the spleen and kidneys, and that the tonsils had been removed; that the liver showed about 90 per cent yellow, that is, that there were marked or extensive fatty changes; that the heart showed a moderate hypertrophy in the myocardium, which means that there was some enlargement of the heart; that after the examination, he formed an opinion as to what caused the death of the patient, which was that the patient succumbed to a complication of two factors; that one of them was a certain amount of degenerative changes of the heart muscle, and the other factor was surgical shock and anesthesia, the surgical shock and anesthesia grouped as one thing. He stated that these certain changes in the heart are referred to as myocarditis — chronic myocarditis. He testified further as follows: “I don’t think I can state how long it [the condition of the insured] has been. I think it was chronic but as to assigning a number of months or years that it might have existed, I don’t think Í could do that reasonably well.” Referring’ to other conditions found, he testified that “The body is obese. The neck is very short. The liver is down 3 finger breadths in the mid line. The cut surface of the liver is 95% yellow. The lobular markings are almost lost. The stomach is ballooned up with air. Its lining and that of the intestines are normal. The heart is distinctly larger than normal. The ventricular wall is thicker than normal. The myocardium is light brown. . . . The kidneys are dark red, the capsule strips easily leaving a pitted surface. The pancreas and adrenals appear normal. The spleen is large and soft, its cut surface chocolate brown,” and that “I thought that the death occurred because of two factors, one the heart changes and the other surgical shock and anesthesia.” On cross-examination, he testified that “I determined that there was a cloudy swelling of the myocardium by looking at it. A cloudy swelling, as I used the term . . . means a cooked appearance of the heart muscle, and that is determined by looking at it. . . . In my opinion this heart was bigger, the muscle walls of the heart were thicker than for an individual of that size.”

Dr. Overton Brooks, a witness called by the defendant, testified that he had practiced medicine and surgery for almost 30 years; that he was a graduate of the Northwestern University, and was connected with St. Joseph’s and the Henrotin Hospitals, and is surgeon for the Chicago Great Western Railroad and the Erie Railroad, and that he is in active practice as a surgeon. He further testified, in substance, that he was familiar with the organ of the body known as the liver, and that “Assuming that a man has a liver that is ninety-five per cent yellow, that liver would show a very distinct pathology. It might he that he has what we call a fatty infiltration or fatty degeneration of the liver; that is, the cells have turned to fat. It might be that he has a hardening of the liver, what we call cirrhosis of the liver, due to some chronic poisoning. It might be what we call an amyloid liver, which is usually brought on by some toxic, long drawn out, poisonous condition, like tuberculosis or syphilis or something like that. It might be due to bile getting into the liver through a cancerous condition there, or some inflammatory condition in the gall bladder which stops up the bile and it is thrown into the liver. It might indirectly come from diseased tonsils. The greatest function of the liver is the storage of the food product that gives heat and life to the body, and it also takes care of the poisons, a detoxifier. It takes care of the poisons that might be sent into the body and eliminates them through the bile into the intestines.” The abstract indicates that the witness was asked a hypothetical question, which is not there set forth, and that his answer was as follows: “I have an opinion based on these facts, assuming each and every fact which has been related to be true and basing an opinion on these facts, upon reasonable medical certainty as to the cause of the death of this hypothetical man. It is my opinion that this man died with this group of symptoms or signs that he had there, leaves the impression to me that he had a chronic condition for years that was brought about by some poisonous substance, or either bacterial poison, germ poison or chemical poison, that has been existing for a long time. And I am of the belief that this pathological condition as shown was the cause of this man’s death; and the anesthetic was a contributing cause of his death. If I might state my belief, I have my belief on this subject because asphyxial death in this time and day is really very rare through asphyxia because in a properly equipped hospital and people that are properly trained, asphyxia from any cause whatsoever, electrical things or carbon monoxide or automobile fumes or any of those things, if they are properly taken care of immediately rebreathing takes place. And I might say it is considered really a rare condition in the operating room or anywhere else, unless there is some other underlying condition, such as we find in this picture and such as we find in the enlarged thymus gland situated over the heart that has been carried on through years. Usually it subsides in childhood; in some cases it is carried on even up until this age, but that is rather rare. But I would say that there must be some obstruction or some deformity or something- like that that would really cause a man to die on the operating table and not just asphyxia alone. The fact that this man coughed just before he died would indicate that his reflexes were returning and he was coming out from under the anesthetic. I shouldn’t think men die from ether if they are coming out of the ether. I think that the heart condition with the liver condition, the tonsil condition, the fact that the tonsils were so large they interfered with his breathing at times, might even have caused his death.”

Another physician, Dr. Charles M. Fox, testified substantially as the witness just referred to.

Dr. Harry C. Harris, called by defendant, testified that he graduated from the University of Illinois in 1926, and from the University College of Medicine. After reciting his general experience, he testified that “During my experience as a physician and surgeon, I have had occasion to see the effect of ether on the human body. I have administered ether on many occasions. Ether has the property of producing anesthesia by paralyzing the higher nerve centers of the brain, known as the respiratory center and the circulatory center. When administered, it passes in the average through four normal phases. First is the stage of focal irritation, . . . where the ether irritates the throat and produces a cough. One accident in the use of ether at this time in which it may cause death is due to the fact that if an operation is performed about the head at this time it may cause a reflex action set up in one of . . . the five cranial nerves. . . . The second stage is that exemplified by a spell of anxiety, . . . because of the stimulation of the cerebrum of the brain. ... At this stage no deaths are reported from the use of ether. . . . The third stage of ether anesthesia is that exemplified by a tetanic spasm of all the muscles in the body. And in this stage there may result a tetanic convulsion of the muscles of respiration, and at this stage if in the administration of ether these tetanic convulsions take place and the respiratory muscles become so grasped and tetanic, then respiration may cease because of this action and the blood is dammed back on the right side of the heart and the heart dilates and the patient dies. ’ ’ This witness was asked a hypothetical question, which does not appear in the abstract. In answer, he said: “My opinion is that the deceased came to his death as a result of the combined effects of pre-existing pathology that contributed to the administration of ether. When I refer to pre-existing pathology, I refer to the tonsils, to the heart, and to the liver, to the blood vessels and to the kidneys and to the general status or make-up of the individual and his age.” His testimony is further to the effect that, considering the physical history of the insured, the opinion of the witness was that ether should not have been administered as an anesthetic in the removal of the tonsils of the insured.

In Wayne v. Travelers Insurance Co., 220 Ill. App. 493, suit was brought on an accident insurance policy by the beneficiary. The policy was issued to one John Beakley, and contained the provisions that he was insured “against loss resulting from bodily injuries, effected directly and independently of all other causes, through external, violent, and accidental means,” and that “this insurance shall not cover accident, injury, disability, death or other loss caused directly or indirectly, wholly or partly, by bodily or mental infirmity, ptomaines, bacterial infections (except pyogenic infections which shall occur simultaneously with and through an accidental cut or wound), or by any other kind of disease.” Prior to the death of the insured, on August 2,1917, the statement of the court indicates, he had been treated for syphilis, and on that date, the doctor injected 0.6 grams of arsenobenzol. In its opinion, the court refers to a description of the technic of this operation given by a witness, and concludes that the manner of the injection seems to have been entirely regular and that no question was raised in this respect. Within 30 minutes after the last injection the patient fainted and respiration was disturbed; a pulmotor was used under an experienced man, but in about two hours the patient died. The physician testified that no such result from the injection was expected. The post-mortem showed that the muscles of the throat were swollen, the membrane on the inside edematous, and the throat closed. The physician referred to made out the death certificate, wherein he stated that the cause of death was edema of the glottis following an injection of arsenobenzol, 0.6 grams, and “contributory syphilis, duration five years.” In its opinion, after referring to the fact that the evidence in that case showed that Beakley was suffering from syphilis which directly contributed to his death, and that he, therefore, could not recover, the court said:

“Another bar to recovery is found in the words, ‘ accidental means, ’ in the insuring clause. It is pointed out in many cases that these words are not the same as an accidental injury or accidental death. These cases hold, in substance, that where the means are voluntary and intelligent and the act performed without error, even though death should unexpectedly result, death is not effected by accidental means. Among such cases are Higgins v. Midland Casualty Co., 281 Ill. 431; United States Mut. Acc. Ass’n v. Barry, 131 U. S. 100; Smith v. Travelers’ Ins. Co., 219 Mass. 147, and cases there cited; Shanberg v. Fidelity & Casualty Co., 158 Fed. 1. Entirely applicable to the present case is the language in the opinion in Riley v. Interstate Business Men’s Acc. Ass’n (Iowa), 152 N. W. 617:

‘1 Thus it is apparent that to entitle one to recover, under a policy like the one in question, it is not sufficient to show that the death was accidental. Death is the result of some precedent act or condition. It is traceable to some cause. It is not sufficient, to make the cause accidental, that it appear that the resulting death was unanticipated, unforseen, and not expected as a result of the act done. It must appear that that which happened to produce the result happened through accident, in order that the proper foundation may be laid for the recovery. The policy provides recovery in the event of death, but only where death results from bodily injuries effected solely by external, violent, and accidental means. ’

“In Joyce on Insurance (2nd Ed.), vol. 5, sec. 2863, the author discusses at length the distinction between accidental death and accidental means, saying among other things:

“ ‘A person may do certain acts, the result of which acts may produce unforseen consequences and may produce what is commonly called accidental death, but the means are exactly what the man intended to use, and did use, and was prepared to use. The means were not accidental, but the result might be accidental. ’ ’ ’

Plaintiff cites the case of Christ v. Pacific Mut. Life Ins. Co., 312 Ill. 525. In that case, the insured, under a policy containing provisions exactly similar to those contained in the policy in issue here, contracted typhoid fever from drinking contaminated water and died as a result therefrom, and the same question was raised as to whether or not, under the facts stated, the beneficiary could recover upon the theory that the insured lost his life by ‘ ‘ external, violent and accidental means.” In holding that there was a right to recover, the Supreme Court said:

“The means by which disease is acquired being the entrance of the typhoid bacilli into the system, if the means of such entrance are accidental the resulting typhoid fever and its fatal effect may also be said to be accidental.

“We have had occasion in a number of cases to define the term ‘accident’ as used in accident insurance policies. In Hutton v. States Accident Ins. Co., 267 Ill. 267, we said that an effect which is the natural and probable consequence of an act or course of action cannot be said to be produced by accidental means. After citing several cases the rule announced in Prudential Casualty Co. v. Curry, 10 Ala. App. 642, was approved, that ‘an accident may be said to be an unforseen or unexpected event of which the party’s own misconduct is not the natural and proximate cause, and hence the result ordinarily and naturally flowing from the conduct of the party insured cannot be said to be accidental even when he may not have forseen the consequences. . . . The happening of an event, to be properly termed an accident, must not only be unforseen but without the design and aid of the person. ’

“In United States Mutual Accident Ass’n v. Barry, 131 U. S. 100, the complaint charged that the insured jumped from a platform four or five feet high to the ground, and in alighting unexpectedly received an accidental jar and sudden wrenching of his body which caused a stricture of the duodenum, from the effects of which he died a few days later. It was urged that there was no evidence to support the verdict because no accident was shown. The court did not concur in that view, but said: ‘The two companions of the deceased jumped from the same platform at the same time and place and alighted safely. It must be presumed not only that the deceased intended to alight safely but thought that he would. The jury were, on all the evidence, at liberty to say that it was an accident that he did not. The court properly instructed them that the jumping off the platform was the means by which the injury, if any sustained, was caused; that the question was whether there was anything accidental, unforeseen, involuntary, unexpected, in the act of jumping, from the time the deceased left the platform until he alighted on the ground; that the term “accidental” was used in the policy in its ordinary, popular sense, as meaning “happening by chance; unexpectedly taking place; not according to the usual course of things; or not as expected”; that if a result is such as follows from ordinary means voluntarily employed, in a not unusual or unexpected way, it cannot he called a result effected by accidental means; but that if, in the act which precedes the injury, something-unforeseen, unexpected, unusual occurs, which produces the injury, then the injury has resulted through accidental means. ’

“The Barry case is a leading case, which is usually cited in cases on accident policies involving the question of what constitutes an accident. The language quoted was approved in Higgins v. Midland Casualty Co., 281 Ill. 431, which quoted from Bryant v. Continental Casualty Co., 107 Tex. 582, as follows: ‘The proper and true test in all instances of voluntary action is that defined in the Barry case. If in the act which precedes the injury, though an intentional act, something unforeseen, unexpected and unusual occurs which produces the injury, it is accidentally caused.’ In the Higgins case it was held that sunstroke was a bodily injury sustained solely through accidental means within the meaning of the policy. It was held to be an accident under the Workmen’s Compensation Act in City of Joliet v. Industrial Com., 291 Ill. 555. Anthrax, thougfi a disease, is an accident under the Workmen’s Compensation Act if accidentally contracted in the course of -the employment. (Chicago Rawhide Manf. Co. v. Industrial Com., 291 Ill. 616; McCauley v. Imperial Woolen Co., 261 Pa. St. 312; Turvey v. Brinton, A. C. (1905) 230.) So is arsenical poisoning. (Matthiessen & Hegeler Zinc Co. v. Industrial Board, 284 Ill. 378.) In Stedman v. United States Mutual Accident Ass’n, 123 N. Y. 307, however, death resulting from anthrax caused by contact with putrid animal matter containing anthrax bacilli was held not to be accidental within the meaning of a policy insuring against death from external, violent and accidental means. The taking of poison; (Healey v. Mutual Accident Ass’n, 133 Ill. 556; Travelers’ Ins. Co. v. Dunlap, 160 id. 642; Metropolitan Accident Ass’n v. Froiland, 161 id. 30;) the inhaling of gas; (Travelers’ Ins. Co. v. Ayers, 217 Ill. 390; Paul v. Travelers’ Ins. Co., 112 N. Y. 472;) suffocation by drowning; (Mallory v. Travelers’ Ins. Co., 47 N. Y. 52; Clark v. Iowa State Traveling Men’s Ass’n, 156 Iowa, 201;) the eating of tainted food (Johnson v. Fidelity and Casualty Co., 184 Mich. 406,) or of poisonous mushrooms; (United States Casualty Co. v. Griffis, 186 Ind. 126;) the opening of a pimple; (Lewis v. Ocean Accident Corp., 224 N. Y. 18;) fright caused by insured’s horse running away while the insured was riding in a covered carriage and coming near colliding with other teams though no collision occurred; (McGlinchey v. Fidelity and Casualty Co., 80 Me. 251;) under ordinary circumstances are all accidental means by which bodily injuries are produced through which death sometimes results.”

We have quoted at length from this opinion for the reason that the Supreme Court has there so carefully reviewed the law applicable to the case at bar.

In the case at bar, as in the Wayne case, the evidence is clear that the “means” through which the insured lost his life, was not accidental. In Standard Dictionary, “means,” plural of mean, is defined as “the medium through which anything is done. The process adopted in order to attain an end; instrumentality. In this sense it is often construed as a singular noun, as, no other means is left; this will be a means to the desired end.” In the Christ case, in holding that, under the circumstances plaintiff might recover, the court concluded with the following:

“Violence causing a bodily injury is not necessarily limited to physical force, but the accidental introduction into the body of a foreign substance which causes death or extreme bodily injury.” (Italics ours.)

Standard Dictionary defines “violence” as follows: “The quality, character or state of being violent, . . . in a physical sense.” “Violent” is defined as follows: “Proceeding from or marked by great and intense physical force, ... as a violent attack; a violent blow.”

In the instant case, the insured voluntarily submitted to the administration of the anesthetic and the operation, and there is no claim but that the operation was skilfully performed. Further, there is no showing and no claim that the anesthetic was not properly and skilfully administered. The facts are exactly similar to those in the Wayne case. See also Travelers’ Protective Ass’n of America v. Davis, 67 F. (2d) 260.

In a supplemental brief, plaintiff cites the case of Burns v. Metropolitan Life Ins. Co., 283 Ill. App. 431. In that case, the insured was killed as a result of a fall to the sidewalk from a window of an apartment in which she lived, and this court held that under a policy containing the same provision as the policy in the case at bar, the beneficiary might recover. There is no similarity whatever between the facts in that case and the facts in the instant case.

The preponderating weight of the evidence here indicates that the insured was suffering from disease which directly contributed to his death. 'The evidence also shows that his death was not the result “ directly and independently of all other causes of bodily injuries sustained through external, violent and accidental means.” The judgment of the superior court is reversed, and it is ordered that judgment be entered here against plaintiff for costs of suit.

Reversed and judgment entered here for costs of suit.

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