author: Mr, Presiding Justice Riess

text:
    Frank A. Bridge and Mary J. Bridge, Trading as Frank A. Bridge and Company, Appellants, v. Massachusetts Bonding and Insurance Company, Appellee.
    Gen. No. 9,181.

      Opinion filed October 19, 1939.
    ' Giffin, Lindner, Newkirk & Jones, of Springfield, for appellants.
    Gillespie, Burke & Gillespie, of Springfield, for appellee.
   Mr, Presiding Justice Riess

delivered the opinion of the court.

Plaintiffs appellants, Frank A. Bridge and Mary J. Bridge, partners doing business under the firm name of Frank A. Bridge and Company, filed suit in the circuit court of Sangamon county, Illinois, seeking recovery from the defendant appellee, Massachusetts Bonding and Insurance Company, under the provisions of a certain safe burglary policy No. BS 369442, for an alleged loss suffered by the plaintiffs on April 12,1935, in their retail jewelry store in Springfield, Illinois. Judgment in bar of the action was entered by the court upon trial of the cause without a jury, from which an appeal was taken to this court.

At the time of the loss in question, the plaintiffs conducted a retail jewelry store in said city having a frontage of approximately 16 feet and a depth of 65 feet. The rear or east one-fourth of the store was used for office quarters and the remaining part in the front for display of the stock of jewelry and merchandise, which was separated from the office portion by a counter. There were three safes in the store and all are described and covered by the policy in question and mentioned and identified therein and in the evidence as Safes Nos. 1, 2 and 3. Safe No. 1 was located in the northeast corner of the store proper or space available to customers, while Safes Nos. 2 and 3 were located in the rear office quarters; Safe No. 2 being in the extreme southeast corner and Safe No. 3 being nearby against the east or rear wall.

Safe No. 1 was equipped with three sets of doors. The outer double doors were designated as fire and burglarproof doors and were controlled by a combination lock. Inside the outer doors was a pair of thin inner doors opening in the center and controlled by a key-operated lock. Within the inner doors and occupying approximately the bottom one-third of the safe was another burglarproof door controlled by a combination lock. The space behind the inner burglarproof door occupying approximately the bottom one-third of the safe is described in the policy and mentioned in the record as the inner chest of the burglarproof chest. Safe No. 2 had two-piece outer doors controlled by a combination lock and was used for safekeeping of watches. Safe No. 3 was used for. storing the books and records of the business.

At the time of the loss on April 12, 1935, Safe No. 1 was used to retain and store the more precious articles. In the space above the lower burglarproof chest, trays were provided in which were placed all rings and solid gold jewelry, and in the lower burglarproof chest, cash, checks, diamonds, loose diamonds, customers’ diamond jobs, diamond wedding rings and the most expensive rings were placed.

Anthony Bose, who testified as a witness for the plaintiffs, was employed by the plaintiffs in the capacity of manager. His duties required him to take care of the store proper and of the customers, to be responsible for the help, to take care of merchandise and perform certain other duties including the opening and closing of the store.

Bose testified to the proper disposition of the merchandise at the close of business on April 11, 1935, as above outlined and that he personally tried the combinations on the doors of the safes before leaving. He opened the store on the morning of April 12, Í935, at about 7:45 a. m. and proceeded to the rear of the store for the purpose of turning on the lights. When almost to the counter separating the office from the customers’ portion of the store, he heard some one enter whom he greeted with a “Grood Morning.” Beceiving no answer, he turned around and discovered a person advancing toward him rapidly. Bose then hurried to the switch box in the rear of the store to turn on the lights, but after opening the door to the switch box he was commanded, “Don’t turn on a buzzer.”

His assailant then commanded Bose to “get busy and open those safes or I’ll kill you.” The fuse or switch box being adjacent to Safe No. 2, Bose started to manipulate the combination on that safe, temporizing in the hope that help would arrive. His assailant berated him and threatened to kill him if he did not open the safe and finally struck Bose across the head with a gun, cutting his scalp and causing it to bleed profusely. Blood flowed onto Bose’s hands and the safe and as a result was smeared on the combination. His assailant struck Bose on the head a second time with a gun, again cutting the scalp and causing the assailant’s gun to discharge and the bullet to strike said Safe No. 2, after which the robber called to a confederate who evidently was standing watch at the front of the store. Blood having obliterated the combination dial, Bose was unable to manipulate the lock, and the robber then forced Bose to go from the office to Safe No. 1 in the store proper and ordered him to open that safe.

Bose had little difficulty in opening the doors by manipulating the combinations which he possessed and by the use of the key on the set of thin inner doors. While so opening the safe, bloody finger marks were left by Bose on the exterior of all three sets of doors of Safe No. 1. After the doors were opened by Bose, the robbers wired his hands behind him, threw him behind the partition, abstracted money and merchandise from the open Safe No. 1, took the keys to the store out of Bose’s pocket and departed after locking the store doors behind them. Safes No. 2 and 3 in the rear office remained unopened.

A subsequent check-up disclosed that the men had taken the following from Safe No. 1: Cash from within the inner burglarproof chest, $103.45; loose and mounted diamonds from within the inner burglarproof chest, $8,223.54; watches, solid gold ring sets, neck pieces and customers’ jewelry from within the safe, but outside the inner burglarproof chest, $8,561.98.

The insuring clause of the burglary policy indemnifies the plaintiffs against loss through the felonious abstraction of property from within the insured part of the safe and vault by persons making felonious entry into such safe and vault when all doors thereof are duly closed and locked:

“Provided that such entry shall be made by actual force and violence of which there shall be visible marks made by tools, explosives, electricity, gas or other chemicals,, upon the exterior of (a) all of said doors of such safe and of the insured part thereof and of the vault, if any, containing such safe, if entry is made through such doors; or (b) the top, bottom or walls of such safe and of the insured part thereof and of the vault, through which entry is made, if not made through such doors.”

In addition thereto, the plaintiff carried a robbery policy at the time of the alleged loss under the terms of which plaintiff was indemnified by said company against loss by robbery through:

“ (1) violence inflicted upon a custodian; (2) by putting him in fear of violence; (3) by an overt felonious act committed in the presence of a custodian and of . which he was actually cognizant provided such action is not committed by an officer or employee of the assured.

The total coverage of the robbery policy was $2,500, and the total amount of the burglary policy in suit was $9,000. The plaintiffs had filed proof of loss and collected without suit under the combination robbery policy which covered both the stock and the contents of the safes and had characterized the assailants’ acts as robbery, which acts they now claim to have also created a liability under the provisions of the burglary policy. The defendant had admitted liability and made settlement in the sum of $2,353.45 under the former, but denied liability under the latter policy now in suit. The combination $2,500 robbery. policy covered all property “in the premises,” while the coverage under the safe burglary policy covered only certain property within the safes, viz.: “insured property from within the insured part of such safe. ’ ’

Appellant assigned as error the striking of the last sentence of paragraph 6 from the complaint; failure to hold that the plaintiffs’ loss is within the scope of the policy in suit; in not holding that the plaintiffs suffered loss by burglary within the meaning of said policy of said merchandise within the chest in Safe No. 1 of the value of more than $5,000 and of merchandise in said safe but outside the chest thereof of the value of $1,000, and in not entering judgment for $6,000 in favor of the plaintiffs plus accrued interest thereon.

In order to recover under the terms of the burglary policy, it must appear from the evidence, as therein provided and required, not only that “the felonious abstraction of any of such insured property from within the insured part of such safe or vault, by ahy person or persons making felonious entry into such safe and such insured part thereof, and also into the vault, if any, containing such safe, when all doors of such safe and vault are duly closed and locked by all combination and time locks thereon,” but it must further so appear “that such entry shall be made by actual force and violence of which there shall be visible marks made by tools, explosives, electricity, gas or other chemicals, upon the exterior of (a) all of said doors of such safe and of the insured part thereof and of the vault, if any, containing such safe, if entry is made through such doors.”

Appellant undertakes to meet these requirements by the contention that the marks of the bullet and blood stains on Safe No. 2, which was not opened, was evidence of force and violence and of marks of tools and explosives upon Safe No. 1 and that the presence of blood stains from the fingers of appellants’ employee Rose upon the doors of the latter safe, which was opened, constituted proof of the use of chemicals as provided in the policy and offered expert testimony to the effect that human blood is composed of chemical substances.

With neither of these contentions did the trial court agree, nor can this court concur in the forced construetion sought to be placed on the plain and unambiguous language of the insurance contract in relation thereto. The bullet mark on Safe No. 2 was not proof of marks of either a tool, explosive or chemical on the doors of Safe No. 1, nor were the blood stains from the fingers of the appellants’ employee any proof that such entry was made by “actual force and violence of which there shall be visible marks made by tools, explosives, electricity, gas or other chemicals” upon the doors of the safe into which felonious entry was made.

The policy was insurance of the sufficiency of the safe and vault contained therein against tools, explosives, electricity, gas or other chemicals used by. burglars, and, obviously, did not comprehend a chemical such as blood, which is generated through the organic mechanism of the human body. Komroff v. Maryland Casualty Co., 105 Conn. 402, 407; Maryland Casualty Co. v. Ballard County Bank, 134 Ky. 354, 360; Blank v. National Surety Co., 181 Iowa 648, 653.

“Tools, explosives, electricity, gas or other chemicals” means those tools, explosives, electricity, gas or other chemicals used by burglars. Maryland Casualty Co. v. Ballard County Bank, supra; Sturgis Nat. Bank v. Maryland Casualty Co., 252 Mich. 426, 430; Komroff v. Maryland Casualty Co., supra.

Felonious entry into a safe by actual force and violence has a well-defined meaning, and the very language employed in the policy herein excludes entry by manipulation through the agency of plaintiffs’ employee. Komroff v. Maryland Casualty Co., supra; United Sponging Co. v. Preferred Acc. Ins. Co. of N. Y., 161 N. Y. Supp. 309, 310; Newark Dance Palace v. Maryland Casualty Co., 125 Misc. 869, 212 N. Y. Supp. 286, 287; Brill v. Metropolitan Surety Co., 113 N. Y. Supp. 476, 477.

Appellant further contends that the terms of the policy were ambiguous and must therefore be construed most strongly against the company which wrote the policy. While ambiguous language is to be construed against the insurer, no ambiguity should be created where none exists. Crosse v. Supreme Lodge Knights & Ladies of Honor, 254 Ill. 80, 98 N. E. 261; Blume v. Pittsburgh Life & Trust Co., 183 Ill. App. 295, 298.

It is true that where the terms of a policy are of doubtful meaning, that construction most favorable to the insured will be adopted. This canon of construction is both reasonable and just, since the words of the policy are chosen by the insurance company; but it furnishes no warrant for avoiding hard consequences by importing into a contract an ambiguity which otherwise would not exist, or, under the guise of construction, by forcing from plain words unusual and unnatural meaning. Contracts of insurance, like other contracts, must be construed according* to the terms which the parties have used, to be taken and understood, in the absence of ambiguity, in their plain, ordinary and popular sense. Bergholm v. Peoria Life Ins. Co., 284 U. S. 489, 492, 76 L. Ed. 416, 52 Sup. Ct. 230; Capps v. National Union Fire Ins. Co., 318 Ill. 350, 354, 149 N. E. 247; Norwaysz v. Thuringia Ins. Co., 204 Ill. 334, 342, 68 N. E. 551.

The terms “robbery” and “burglary” each have different and well-defined meanings in law. The meaning of these respective terms, as used by the parties, was set forth in specific language in each of the two insurance contracts. Evidently the appellant recognized this distinction, since he took out policies protecting him to a greater or less extent against each contingency. We find no ambiguous language in the policy in question that would justify us in undertaking to modify or ignore its express provisions or in adopting a strained or forced construction thereof.

We do not deem the principles announced in the case of Bernard v. Employers Liability Assur. Corp., 233 Ill. App. 229, or other cases cited by appellant to be applicable to or controlling under the facts and decisive issues herein.

While we have not discussed all of the alleged errors set forth by the plaintiffs, we have fully considered them, and finding no reversible error in the record, the judgment of the circuit court of Sangamon county will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Riess

license: Public Domain

text:
    Continental Assurance Company, Appellee, v. William McCarty and Ruth Heaton, Administrator and Administratrix of Estate of Frances Andell, Deceased, Appellants.
    Gen. No. 9,189.
    Opinion filed October 19, 1939.

      R. M. Riggs, of Winchester, and A. W. Schimmel, of Pittsfield, for appellants.
    Bellatti, Samuell & Arnold, of Jacksonville, for appellee.
   Mr. Presiding Justice Riess

Defendants appellants, William McCarty and Ruth Heaton, as administrators of the estate of Frances Andell, deceased, have appealed from a decree in favor of the plaintiff appellee, Continental Assurance Company, a corporation, entered by the circuit court of Scott county, Illinois, canceling an insurance policy in the sum of $1,000 issued on July 1, 1936, to said Frances Andell, who departed this life on September 28, 1937, in which policy the estate of said assured was named as beneficiary. The policy in question contained the usual two years incontestable clause, but the death of the assured and suit on the policy occurred within the two-year period.

The complaint alleges the issuance of the policy in question in reliance upon certain false representations made by Frances Andell in a written application for the insurance policy known by the applicant to be false and which were material to the risk and were relied upon and believed by the company to be true and to have induced the issuance of the policy. The complaint specifically alleges that by question 15 of the application, the decedent was asked in writing the following questions: “Have you ever had any ailment, disease, injury or operation? Name ailments — dates—duration — results—doctors,” and that deceased answered the above question in writing as follows: ‘1 Common Colds — Appendectomy, 1925 — Normal duration — full recovery — Dr. J. W. Eckrnan.”

It was further alleged in the complaint that the decedent at the time of making application was suffering from chronic nephritis with hypertension, and' had been suffering from that ailment for three years, and that she had been treated by three physicians, viz.: Dr. J. W. Eckman and by Dr. F. Gr. Norbury and Dr. F. A. Norris of Jacksonville, Illinois, in October, 1935, and March, 1936, respectively; that said matters were material to the risk, which was greatly increased by reason of the fact that the said Frances Andell was suffering from said disease; that appellee would not have issued the policy if it had known that she was suffering from said disease or had been attended by said physicians, and that knowledge of the falsity of said representation and of the true state of facts did not come to appellee until after the death of assured.

Defendants appellants’ answer denied that she had an alleged ailment or that she had any knowledge thereof or that she was attended- by any other doctor than J. W. Eckman; averred that any examination by said physicians was for diagnostic purposes, and filed therewith a counterclaim asking affirmative relief in the way of judgment on the policy, to which counterclaim appellee filed its answer.

The cause was referred to the master in chancery, who found the issues for the plaintiff appellee; that the misrepresentations alleged in the complaint were made by the assured in her application; that they were material to and increased the risk by reason of the alleged disease from which she was found to be suffering; that said representations were false and known in part by applicant to be false and were relied upon by the company without knowledge of their falsity, and the decree was recommended and granted by the court canceling the above policy and enjoining defendants from suing thereon and finding the amount of $41.67, which had been paid in premiums by the assured and duly tendered to the administrators, to be due to the defendants appellants. The master’s report was duly approved by the court and a decree entered reciting proof of the various allegations of the complaint and granting the relief prayed, from which decree this appeal was taken.

In support of the allegations of the complaint, five witnesses were called, including the three physicians hereinabove named; the insurance agent, P. H. Huffstetler, who solicited and wrote the application for the insurance policy, and one C. E. Carlson, an underwriter who passed upon the application and approved the issuance of the policy by the company.

It appears from the evidence that Frances Andell was employed as an attendant at the Jacksonville State Hospital and was aged 37 years in June, 1936, when the application for the policy in question was signed by her; that prior thereto she had consulted Dr. J. W. Eckman of Winchester, Illinois, concerning her health and was taken by him to a hospital in Jacksonville, Illinois, on October 9, 1935, where she was examined by Drs. Norbury and Norris of that city. She then complained of having suffered head pains from four to six weeks, loss of weight during that time of eight or ten pounds and of constipation, frequent urination and nervousness. Examination by the physicians while she remained in the hospital resulted in their diagnosis that she was suffering from chronic nephritis with hypertension, which means a chronic kidney disorder associated with high blood pressure.

Dr. Norbury testified to finding a full thyroid, white deposits along the arteries of the eyes indicating change in nerve cells; evidence of albumen and casts in the urine, and her blood pressure, diastolic 130 and systolic 214, but did not recall whether he advised her of his findings, which were communicated to Dr. Eckman. He again saw her in April, 1937, and from diagnosis did not consider her chances good for recovery and was of the opinion that her condition would continue until the time of her death.

Dr. Norris testified that he saw her at the hospital on March 10, 1936, October 28, 1936, and April 18, 1937, in association with Dr. Eckman; that on March 10, 1936, she had told him of a previous attack of scarlet fever, of her employment at the State hospital and of her complaints of head pains, extreme nervousness and frequency of urination; that he found her blood pressure to be diastolic 110, systolic 230, hyalin and granular casts in the urine, kidney function 27 per cent, which was normally 65 to 100 per cent, indi eating kidney damage; prognosis bad, indicating the beginning of a terminal illness from which she could not recover, and other symptoms and conditions to which he testified, and that in October, 1936, and April, 1937, he examined her again and his findings were similar.

Dr. Eckman testified that he had attended her for an appendectomy operation in 1925 by Dr. Duncan and that no salpingectomy operation was performed at that time; that thereafter he attended her on some occasions for colds; that in March or April, 1936, she complained of headache and extreme nervousness, but did not stop her work at the State hospital; that he referred her to either Dr. Norbury or Dr. Norris, whom she consulted; that she went to the hospital and remained there for three days in the fall of 1935; that he treated her but did not tell her the nature of her illness; that her blood pressure appeared on the hospital records and that her ailments continued and gradually grew worse, and that it was chronic nephritis with hypertension that caused her death; that nobody treated her from March to April, 1936, and thence forward until the date of her death except Dr. Norbury, Dr. Norris and himself; that she did not disclose making application for insurance to him and that her general reputation for truth and honesty was good in that community.

The agent, Huffstetler of Springfield, Illinois, who took the application, stated that at the time he took the application, he and applicant sat in his car in the rear of the hospital buildings; that he questioned her and truthfully transcribed her answer to question 15 as she gave it to him; that he believed her answer to be true and had no knowledge of the fact that she had suffered from chronic nephritis with hypertension nor that Dr. Norbury or Dr. Norris of Jacksonville had diagnosed her case or treated her, nor that Dr. Eckman had attended her for high blood pressure or the ailments referred to; that so far as he knew she was in good health and he believed her to be in good health.

Witness C. E. Carlson testified that he was the underwriter and passed upon applications for insurance, selected risks and was familiar with the elements materially affecting insurance risks; that some applications were written by the company without medical examination, in which case the applications and answers therein largely determined whether the insurance should be granted; that he passed upon her application, relied upon the truth of the answers and the same was accepted and the policy issued on the basis of the answers; that therefrom it appeared that the only ailments from which she had suffered were those set forth in answer to question 15; that in passing upon the application, he had no knowledge that the applicant had suffered from chronic nephritis with hypertension, which would be material to the risk in issuing a policy according to underwriting practice and would cause its rejection; that if he had known of her suffering from chronic nephritis with hypertension during the previous year, the application would not have been approved and the company would not have issued the policy; that he relied upon the statement that she had consulted or been treated only by Dr. Eckman, and did not know that Drs. Norbury and Norris had examined or treated her, or that she had suffered from any disease except appendicitis and common colds in the past; that prior to her death, his department knew nothing of her previous and continuing illness and communicated with no physician in relation thereto prior to the time of her death.

From the evidence we are constrained to hold that the findings and conclusions of the master, as approved by the trial court and recited in the decree, fully justified the court in holding that the material allegations of the complaint had been proven and that the plaintiff was entitled to the relief which was granted in the decree.

It is certain that the deceased knew of being taken to the hospital and remaining there under care of Drs. Norbury and Norris for three days and on one subsequent occasion prior to making application for the insurance, which facts coupled with the recital of various symptoms to the physicians and their subsequent treatment and examinations by the three physicians were facts and circumstances tending to prove that she was not unaware of existing ailments undisclosed by her answers in the application. That she was suffering from chronic nephritis with hypertension for a period of three years prior to the time of her death clearly appears from the record, and it further appears that the company had no knowledge of the terminal illness, from which she was suffering at the time the application was written and which resulted in her death, nor of her treatment therefor by any physician.

The lower court properly found that the representations made in answer to question 15 were false and were material to the risk, upon which the company relied and was induced to issue the insurance policy. Aside from the evidence tending to prove that the material misrepresentations were made knowingly, that fact is not controlling under the evidence herein.

In an equitable action for cancellation of an insurance policy upon the ground that misrepresentations had been made as to facts material to the risk, it is not essential that the applicant should have wilfully made such misrepresentations knowing them to be false, but they will avoid the policy if they are, in fact, false and material to the risk and the company relied thereon, even though made through mistake or in good faith. Western & Southern Life Ins. Co. v. Tomasun, 358 Ill. 496, 193 N. E. 451; Tanner v. Prudential Ins. Co., 283 Ill. App. 210.

Where an accident and health insurance policy was issued without medical examination, reliance upon the truth of answers to questions in the application, the statements by insured in answer to questions that the applicant was not suffering from disease or bodily impairment or received medical or surgical advice or treatment when the applicant in fact had been treated by several physicians and suffered from an ailment resulting in subsequent death, it was held by this court to have been misrepresentations of facts material to the risk which resulted in rendering the policy void. Wasem v. Metropolitan Life Ins. Co., 269 Ill. App. 275. The same principle is adhered to in the recent case of Bronarczyk v. Prudential Ins. Co., 298 Ill. App. 621 (Abst.), 18 N. E. (2d) 398.

We deem the decree of the trial court to have been in accord with both the law and the facts in the instant case. Finding no reversible error in the record, the decree of the circuit court of Scott county will be affirmed.

Decree affirmed.


author: Justice Fulton.

text:
    Nellie J. Ryan, Appellant, v. O. N. Wilson and R. R. Hess, Appellees.
    Gen. No. 9,178.
    opinion filed October 19, 1939.
    J. L. Sullivan, for appellant; Van Sellar & Van Sellar and Cotton & Nichols, for appellees.
   Opinion by

Justice Fulton.

“Not to be published in full.’’


author: Mr. Justice Fulton

text:
    Lester K. Vandever, Administrator of Estate of Henry C. Hill, Deceased, Appellant, v. Harold F. Hill, Appellee.
    Gen. No. 9,182.

      Opinion filed October 19, 1939.
    Dryer, Brown & Poos, of Hillsboro, for appellant.
    J. D. Wilson, of Nokomis, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

On April 19, 1938, Lester K. Vandever, as administrator of the estate of Henry C. Hill, deceased, plaintiff-appellant, filed a sworn affidavit for attachment in the circuit court of Montgomery county, Illinois. After complaint was filed the defendant-appellee, Harold F. Hill, filed a motion to quash the attachment writ and to dismiss the complaint. Before the motion was passed upon the appellant filed an additional count and the appellee filed a new motion to quash the attachment writ and to dismiss the additional count. The court allowed the motion and quashed the attachment writ and the return thereon and dismissed the complaint and the additional count. The judgment ordered that the plaintiff take nothing by his suit, that the defendant go hence without day, and that the costs be paid in due course of administration. The plaintiff-appellant seeks to reverse the judgment of the trial court by this appeal.

The complaint alleged substantially that the plaintiff-appellant as administrator of the estate of Henry C. Hill, deceased, filed his petition in the county court of Montgomery county, praying for a sale of the real estate of Henry C. Hill for the purpose of paying debts of said estate; that a decree authorizing a sale was entered on December 17, 1937; that a sale was held on January 11, 1938, where the real estate was offered to the highest and best bidder; that at said sale the plaintiff-appellant as such administrator, struck off to Harold F. Hill the defendant-appellee, the said real estate for the sum of $2,310; that said real estate, as advertised, provided, as likewise did the decree of court, that the purchaser would pay 15 per cent of the purchase price on the day of the sale; that the appellant demanded payment of the 15 per cent from the purchaser but payment was refused; that the bid received under sale was reported to the court, and approved by said court on the 1st day of February, A. D. 1938; that the appellant administrator then demanded the purchase price from the appellee but the appellee refused to pay, and that therefore the appellant, because of said refusal, was unable to collect the purchase price; that later the appellant administrator applied to the county court for a resale of said real estate and on May 28, 1938, the said court ordered the said administrator to resell said real estate in accordance with the terms and provisions of the decree heretofore entered; that thereupon said administrator duly advertised a resale of said premises and held the same on June 30, 1938; that at said sale the premises were sold to one F. E. Gal-breath for the sum of $660; that by reason thereof there was a deficiency between the first sale and second sale amounting to the sum of $1,650; that in addition thereto by reason of the failure to complete the first bid, the said administrator was compelled to pay, on June 1, 1938, additional interest in the amount of $24 due on a mortgage covering a part of the land so purchased by the said appellee; that by reason of the failure to complete the bid other expenses were incurred because of readvertisement and resale, and the plaintiff-appellant sought to recover the total sum of $1,699.60 from the appellee.

The grounds relied upon by the appellee in support of his motion to quash the attachment writ and to dismiss the complaint and the additional count thereto, insofar as they were urged before the court were as follows: That attachment does not lie because the damages have not been liquidated and no motion was filed in said cause for a rule upon the purchaser to pay by a day fixed by the court, which is a condition precedent to suit, and no order of resale had been entered and no resale of the premises made before the attachment was sued out and therefore the attachment was void.

It is the contention of the plaintiff-appellant that it was not necessary to file a motion in the county court in probate for a rule upon the purchaser to pay by a day fixed by the court and that a rule upon the purchaser to pay by a day fixed is not a condition precedent to suit, and that no order of resale was necessary before a writ of attachment could be sued out as far as the cause of action stated in the complaint or in the additional count was concerned.

It seems to us that a disposal of the question of whether or not it was necessary to file a motion and secure a rule upon the purchaser to pay the amount of his bid on or before a day fixed by the court before an order of resale is entered is decisive of this case. It has long been the law of this State in chancery cases, that in order to charge a purchaser under a judicial sale who refuses to complete his purchase, with a deficiency arising on a resale, the first sale should be reported to the court, the report confirmed, and an order served on the purchaser to pay the purchase money within a given time or in default the premises would be resold at his risk. Hill v. Hill, 58 Ill. 239; Greenwalt v. McClure, 7 Ill. App. 152. In the case of Tilton v. Pearson, 67 Ill. App. 372, the court held that the bidder at a judicial sale bids the title conferred by decree of sale and if he refuses to comply with his bid he cannot, after sale of the property to another for less sum, be compelled to pay the difference between the amount bid by him and the amount for which the property was finally sold unless he was cited before the Court which rendered the decree for sale and in such Court be given an opportunity to show cause for refusing to complete his purchase.

The appellant, however, argues that while the above authorities control in judicial sales ordered by a chaneery court, that they do not apply in this case because the probate court has no general equity powers, and cites in support thereof the case of Hannah v. Meinshausen, 299 Ill. 525. In that case an attempt was made to compel specific performance of a bid by contempt proceedings and the court very properly held that a probate court was not a conrt of general jurisdiction and without power to compel specific performance of a bid made at a judicial sale. In the instant case the probate court is given express power to enter a decree providing for the sale of real estate to pay debts by an administrator. It therefore, seems clear to us that the court would have the right to enter an order for a resale at the cost and expense of the purchaser who failed to complete his bid but not before there had been a rule entered upon the purchaser to show cause why he refused to complete his purchase. In the case at hand it is quite clear why such a rule should be invoked because it appears from the pleadings that the land was incumbered while the inference from the pleadings is that the land was to be sold free and clear from all incumbrances. In any event, we can think of a number of reasons such as a controversy over the title, which might warrant a purchaser in refusing to complete his bid. To secure an order of resale, without any notice to such purchaser, or without affording him a day in court to show cause why he should not complete his purchase, is not only unfair and inequitable but is not in accord with the practice and procedure laid down by the reviewing courts of our State.

It is our judgment that some notice or some rule upon a purchaser to complete his purchase by a day fixed by the court is a condition precedent to an order of resale and to the institution of a suit for damages for failure to complete his bid.

For the reasons set forth the judgment of the lower court is hereby affirmed.

Affirmed.


text:
    Myrtle Geiselman, Appellant, v. Valentine Strubhar, Appellee.
    Gen. No. 9,186.

      Opinion filed October 19, 1939.
    Branson Wright, of Bloomington, for appellant.
    Whitmore & Whitmore and Hal M. Stone, all of Bloomington, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

In this case a complaint was filed by the appellant charging the appellee with assault. It alleged that the appelleee struck the appellant divers blows with his fist on her head, chest and other parts of her body knocking her down and causing her bodily harm for which she claimed damages. The case was tried before a jury and a verdict of guilty was returned awarding the appellant $50 damages. A motion was then made for judgment non obstante veredicto which was allowed by the court and judgment was entered against the appellant for the costs of suit. The appellant seeks to have the order and judgment non obstante veredicto set aside in this court and asks for judgment here in .accordance with the verdict of the jury.

The facts show that the appellant and the appellee are brother and sister. A sister of the appellant testified that she was present with appellant in her father’s home on September 18, 1935, where they were discussing some business matters; that the appellee entered the room while a conference was in progress and struck the appellant on the arm without any provocation; that when the blow landed it knocked appellant off the chair on which she was sitting to the floor. The appellant testified to a similar state of facts and also that her arm was bruised or discolored by the blow. Both the appellee and his father, who testified for him, denied that any blow was struck.

In ruling upon the motion of the appellee for judgment notwithstanding the verdict the trial court stated that counsel for the appellant in his opening statement said that it was the appellant’s duty to prove her case beyond all reasonable doubt and this theory with respect to the degree of proof required by the appellant was carried throughout the trial, similar statements being made in the closing argument as well as in the instructions tendered by the appellant and given on her behalf; that therefore the appellant having elected to proceed upon one theory could not after trial shift to another and different one, and insist thereon as a basis for her right to recover. The court held that the evidence was wholly insufficient to support the appellant’s claim under the theory adopted by her and that therefore, the motion should be allowed.

. An opening statement of counsel is for the purpose of stating to the jury what facts are relied upon and what a plaintiff expects to prove and is not for the purpose of discussing questions of law. The statement does not take the place of a complaint or other pleadings. Pietsch v. Pietsch, 245 Ill. 454.

The primal object in pleading is to produce an issue affirmed on one side and denied on the other, and the trial is had to determine the issue thus made. In this case the complaint contained the usual and ordinary charges of assault and claim for damages. The answer denied the allegations of the complaint. Such case is a civil action for damages .and it is only essential that the plaintiff establish her case by a preponderance of the evidence. Solomon v. Buechele, 119 Ill. App. 595; Branch v. Woulfe, 300 Ill. App. 472.

Instructions to the jury should be predicated on the evidence and also confined to the issues in the case. Illinois C. R. Co. v. Sanders, 166 Ill. 270. It is the duty of the court to harmonize instructions so that they will present the legal questions in a consistent and intelligible manner to the jury. Rock Island & P. Ry. Co. v. Krapp, 173 Ill. 219. The object of instructions is to clearly inform the jury in a concise and comprehensive manner, what the issues are, the principles of law to be observed and the facts material to be proved to justify their verdict. People v. Blumenberg, 271 Ill. 180. The purpose of instructions is to state and explain the law applicable to the case. Mengelkamp v. Consolidated Coal Co., 259 Ill. 305.

In passing on a motion for judgment notwithstanding the verdict the trial court has no authority to weigh and determine controverted questions of fact, and it is only where there is no evidence as a matter of law to sustain the claim of a litigant that a judgment may be rendered notwithstanding the verdict. McNeill v. Harrison & Sons, Inc., 286 Ill. App. 120, 2 N. E. (2d) 959. In passing upon such motions the trial court is governed by the same rules as govern it in passing upon a motion for. a directed verdict. It is limited to facts appearing in evidence, and must consider evidence in the light most favorable to plaintiff. Gardiner v. Richardson, 293 Ill. App. 40. In passing upon such motion the court must view evidence in the most favorable light for plaintiff. Feinberg v. Chicago, B. & Q. R. Co., 300 Ill. App. 278.

In the present case we think the question presented to the court on the motion for judgment notwithstanding the verdict was whether there was any evidence fairly tending to prove the plaintiff’s complaint. In passing upon such question, it was the duty of the court to consider the evidence in its most favorable aspect to the plaintiff, together with all reasonable inferences arising therefrom. Even if the issue had placed the burden on the plaintiff of proving her case beyond all reasonable doubt in this case we believe there was sufficient testimony to submit the case to the jury. The instructions given to the jury were most favorable to the defendant. It is our judgment that the court erred in interfering with the verdict of the jury. For the reasons stated herein the judgment of the circuit court is reversed and judgment in favor of the plaintiff for the sum of $50 against the defendant is entered here in accordance with the verdict of the jury.

Judgment reversed and judgment entered here.


text:
    Harry A. Bigelow, Trustee in Bankruptcy of Insull, Son & Co., Inc., Appellant, v. Augusta Oglesby, Executrix of the Last Will and Testament of John G. Oglesby, Deceased, Appellee.
    Gen. No, 9,190.
    Opinion filed October 19, 1939.

      Rosenthal, Hamill, Eldridge & King, of Chicago, for appellant; Willard L. King and Newell A. Clapp, of Chicago, of counsel.
    Le Forges, Samuels & Miller, of Decatur, and Trapp & Trapp, of Lincoln, for appellee; Wm. M. Rice, of Decatur, of counsel.
   Mr. Justice Fulton

delivered the opinion of the court.

Harry A. Bigelow, as trustee in bankruptcy of Insull, Son & Co., Inc., instituted this suit at law, based upon a syndicate subscription by John Gr. Oglesby. The action was originally commenced during the lifetime of Oglesby, and after his death, his executrix was substituted as defendant.

The complaint consists of:

1. A common count for money expended for defendants’ use and at his request by Insull, Son & Co., Inc.

2. A common count for money due' on an account stated.

3. Two special counts on a contract in writing signed by John Gf. Oglesby, a copy of which was attached to the complaint.

The contract was a syndicate subscription between (1) Insull, Son & Co., Inc., as syndicate manager (2) The subscribers (of whom John Gf. Oglesby was one) and (3) Insull Utility Investments, Inc.

It recites that Insull Utility Investments, Inc., is offering for subscription to the holders of its stock 6000,000 shares of its common stock at a price of $50 per share and has requested the syndicate manager to form a syndicate to purchase so many of said shares as shall not be subscribed for by the stockholders. .Then follows an agreement by the subscribers to form a syndicate for (1) purchasing so many of the 600,000 shares as shall not be subscribed for by the stockholders, and (2) purchasing in the market shares of the common stock of the investment company. Then follows the following sentence: 1 ‘ The subscribers hereto severally subscribe and agree to pay to the Syndicate Manager at its office . . . the amounts set opposite their respective names.” The amount set opposite John G-. Oglesby’s name is $50,000.

The agreement then provides that five per cent of each subscription shall be paid as soon as called for by the syndicate manager and the remainder of the subscription 6 ‘ shall be paid from time to time when and as called for by the Syndicate Manager but only after notice to the subscribers of not less than five days as to each call.”

The contract then provides that the several subscribers shall be called upon to pay their subscriptions only ratably according to the several amounts thereof and that “in the same proportion, except as otherwise herein provided, each subscriber shall be entitled to share in the benefits and shall bear- any loss resulting to the Syndicate under this agreement.”

The contract also provided:

‘ The Syndicate Manager shall, by notice to the Subscribers, declare this agreement in effect and operative when and not before subscriptions, approved by the Syndicate Manager, for a total of $30,000,000 shall have been made hereunder. Unless $30,000,000 shall have been subscribed for hereunder on or before August 25, 1930, this agreement on that date shall be and become void and of no effect. This agreement shall continue in force and operation until December 15, 1930, but the Syndicate Manager may in its discretion extend the same to a date not later than March 16, 1931, in which event this agreement shall continue in force until such extended date, provided that the Syndicate Manager may in its uncontrolled discretion terminate this agreement at any time before its termination under the foregoing provisions.”

In the tenth clause of the contract it was further provided that the investment company agreed to sell and the syndicate manager agreed to purchase at the price of $50 per share, such number of 600,000 shares of the common stock of the investment company as may not have been subscribed on or before September 15,1930, by the persons entitled to subscribe therefor.

Then follow the further provisions of the stock syndicate agreement, including the following:

£ ‘ The Syndicate Manager agrees to support the market for shares of the Common Stock of the Investments Company and the subscription rights with respect thereto, making use, to the extent required for the purpose, of all the means and resources available to it as Syndicate Manager hereunder, provided that no purchase need be made on the market on behalf of the Syndicate at a price in excess of $57.50 per share for shares of said Common Stock or in excess of $1.50 per right for rights issued to holders of Common Stock or in excess of $.68 per right for rights issued to holders of Preferred Stock, and provided further that the obligation to support the market, as herein expressed, shall terminate upon the termination of this agreement or whenever prior thereto a total of 120,000 shares or the equivalent thereof in rights, shall have been purchased in the market by the Syndicate Manager. ’ ’

John G-. Oglesby filed an answer denying the allegations of the complaint and each paragraph thereof. Later, by leave of court, the defendant withdrew his answer to the third and fourth counts of the complaint and filed a motion to dismiss on the ground that the contract attached to the complaint, “is by its terms contrary to public policy and contrary to the law of the land and is intended to create, foster and continue in force a monopoly and combination in restraint of trade, and is null, void and unenforceable.”

The motion was allowed by the court, the entire complaint dismissed and judgment rendered against the appellant. This appeal is from that judgment.

The plaintiff-appellant urges two primary points in seeking a reversal.

1. That the contract was not null, void or unenforceable.

2. It was error for the court, in any event, to dismiss the first two counts of the complaint.

As to the latter point the plaintiff-appellant contends that the two common counts were answered by the defendant-appellee and that the answer was never withdrawn; that, therefore, it was error for the trial court to dismiss the whole complaint, and render judgment against the appellant. However, the record shows that the order allowing appellee’s motion to dismiss was entered on September 20, 1938. On November 1, 1938, the appellee filed its motion for judgment and called up the motion for hearing on November 15,1938. Appellant failed to appear at the hearing and judgment was entered on that date in favor of the appellee, and against the appellant. It is apparent from the pleadings that the appellant in this cause is endeavoring to recover on a special contract, and that such recovery could not be obtained without declaring specifically upon the written agreement. While, the record might be deemed somewhat irregular, the appellant cannot be hurt by the dismissal of the complaint and we are not constrained to reverse this judgment on the technical objection offered in this case.

The appellee contends that the court was entirely warranted in dismissing the complaint because of the failure to allege that the $30,000,000 was subscribed under the syndicate agreement on or before August 25, 1930; that such provision was a condition precedent to the subscribers becoming bound by the agreement and that by failing to allege such fact specifically, the appellant failed to state a cause of action. The defendant’s motion to dismiss makes no mention of a failure to allege any condition precedent, but the record shows it was argued before the trial court and expressly ruled upon in favor of the appellant.

Paragraph 3 of Rule 13 of the Supreme Court provides, as follows:

“In pleading the performance of a condition precedent in a contract, it shall be sufficient to allege generally that the party performed all the conditions on his part; if the allegation be denied, the facts must be alleged in connection with such denial showing wherein there was a failure to perform.”

In both the third and fourth counts of the complaint it was alleged, ‘ ‘ That, on August 25, 1930, the Syndicate Manager duly declared the said Syndicate Agreement to be in effect,” and again, “That Insull, Son & Co., Inc., in all things and in all respects duly performed all its obligations and undertakings in the said contract contained to be by it performed.” The answer of the appellee does not specifically deny this general allegation.

The appellant also offers in its reply brief to amend the complaint to read, “That Insull, Son & Co., Inc., in all things and in all respects duly performed all its obligations and undertakings and all conditions in the said contract contained to be by it performed.” Under such circumstances and believing in the spirit and intention of the legislature as shown by section 4 of the Illinois Practice Act [Ill. Rev. Stat. 1937, ch. 110, par. 128; Jones Ill. Stats. Ann. 104.004] that, “This Act shall be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties, etc., we feel that the position of the appellee on this point is without merit.

It is our view that the main question in controversy, and the one that is controlling in the case is whether or not the syndicate agreement was a contract against public policy and therefore null, void and unenforceable.

The appellant insists that the syndicate agreement upon which this suit is based was the usual and ordinary form used by business men for more than a century where it appeared necessary to stabilize the market upon the issuance of new stock; that the form of such syndicate agreements has become almost as standardized as the form of an insurance policy or a trust deed, and that a decision by the courts which prohibits such feature of stock trading could not fail to cripple and handicap the trade and commerce of the State. On the other hand the appellee, urges that the provisions of the syndicate agreement show that it was executed for the purpose of artificially influencing prices; that its purpose was against the public interest ; that it was contrary to public policy and therefore void. While there are many authorities in this jurisdiction and others construing contracts in restraint of trade, and agreements tending to foster a monopoly, there does not seem to be any case which either approves or condemns the particular form of contract used in this case.

The appellee relies chiefly on the case of Scott v. Brown, 2 Q. B. D. 724, and on Harper v. Crenshaw, 82 F. (2d) 845, in support of its contention that the contract is void.

The appellant depends largely on the English case of Sanderson & Levi v. British Westralian Mines & Share Corp., Ltd., opinion printed in 5 F. Supp. 90, in support of the validity of the agreement.

In the case of Scott v. Brown, supra, it was held, that the action was based upon an illegal contract, and could not be maintained, because, the plaintiff brought an action against the defendants who were stockbrokers, through whom he had purchased shares in a projected company to obtain rescission of the contract for the purchase of such shares, and to recover back the purchase money which he had paid in respect of them to the defendants, on the ground that the defendants, while acting as the plaintiff’s brokers, had delivered their own shares to him instead of purchasing them upon the stock exchange. At the trial it appeared from the plaintiff’s own case that the money sought to be recovered had been paid by the plaintiff in pursuance of an agreement between him and one of the defendants by which such defendant was, with the money, to purchase upon the stock exchange a number of shares in the projected company at a premium, with the sole object of inducing the public to believe that there was a real market for the shares and that they were at a real premium, which, in fact, as the plaintiff and defendants well knew, they were not. The court further found that an agreement between two or more to purchase shares in a company in order to induce persons who might thereafter purchase shares in such company to believe, contrary to the fact, that there was a bona fide market for its shares, and that the shares were at a real premium is an illegal transaction, and no action can be maintained in respect to such agreement or purchase of shares.

In the case of Harper v. Crenshaw, supra, there was a joint undertaking as the basis of the plaintiff’s claim, which had as its object the fixing of a fictitious price on the Washington Stock Exchange for the shares of stock in the District National Bank, and to prevent the free and uncontrolled processes of the Stock Exchange whereby the stock might be quoted at a price reflecting the real judgment of the buyers and sellers thereof, as to its true market value. Thereby the public might be misled when dealing with the stock. The court held that a contract having such a purpose is against public policy and unenforceable.

However, the appellant contends that the case of Sanderson & Levi v. British Westralian Mines & Share Corp., Ltd., supra, distinguishes the case of Scott v. Brown, supra, and that the facts in the later case are more comparable to those of the instant one. In that case the defendants were the owners of a large block of stock of the North Star Company which they wished to sell to the public. The stock could not be sold upon the market without depressing the market price. The defendants entered into contract with the plaintiffs, who were stock jobbers, “to make a price” upon the stock exchange for the shares of said company. The defendants agreed that they would bear any loss resulting to the plaintiffs if it were necessary, in order to maintain the market price to purchase more stock than was sold. The plaintiffs purchased more stock than they sold in the course of the dealing and sued the defendants on their agreements to pay for the stock. The defendants pleaded the illegality of the contract. The court held that the defense interposed was not sufficient and in commenting said that the course adopted by the parties was one of every day occurrence. The object of the arrangement was to get all those persons interested in the shares to agree not to flood the market. Then a pooling agreement of the ordinary description was entered into and the plaintiffs and one Luning were employed to carry it through. An attempt was made to control the market in that the amount of shares placed upon the market at any one time could be regulated and the price at which they were to be so placed was also defined. Directors of the company agreed that the price fixed was a fair one and the court stated that it could find nothing illegal in the agreement and much less any evidence of a fraudulent conspiracy between the plaintiffs and the defendants to cheat and defraud the public. In distinguishing the case from Scott v. Brown, supra, it stated that the latter was a case of sham, deceit and fraud from beginning to end for the purpose of cheating the public.

It is difficult to harmonize all of the decisions and to know just the line of demarkation between a legal and an illegal pool. In the Sanderson & Levi case, the brokers were employed to sell the shares of the defendants at a definite figure. It was the method they adopted for disposing of their holdings without breaking the market. In the case under consideration, the syndicate agreement was entered into for the purpose of stabilizing the market and to fix a value upon the shares of stock which. perhaps did not exist. It may have been a method commonly used in the business world but it is hard to see how it can successfully be carried out without deceiving the public as to the actual value of the stock. The price fixed reflected their judgment as to values and might or might not be the true value.

The decisions of our Supreme Court and the courts of this country generally have condemned all contracts tending to corner the market, contracts in restraint of trade, and those which tend artificially to suppress competition and regulate prices to mislead strangers as to market values. We would be slow to approve any contract which tends in any manner to encourage a method of controlling the stock market against public interest. Neither do we wish to unreasonably discourage legitimate business transactions.

Finding, however, no support in the decisions of our courts for a contract such as the syndicate agreement discloses in this case, and believing the trend of American law designates similar contracts as against the public interest, we hold that the judgment of the trial court was correct and its judgment is therefore affirmed.

Affirmed.


author: Justice Hayes.

text:
    Christian Rau et al., Appellees, v. Village of Warrensburg, Appellant.
    Gen. No. 9,174.
    opinion filed October 19, 1939.
    Evans & Kuhle, for appellant; John R. Fitzgerald, Robert N. Patterson and Elbert S. Smith, for appellees.
   Opinion by

Justice Hayes.

“Not to be published, in full.”


text:
    Charles Beard, Appellee, v. Pearl Moore, Trading as Farm Power Machinery Company, Appellant,
    Gen. No. 9,183.
    opinion filed October 19, 1939.
    Thomas L. Jarrett and Alfred H. Greening, for appellant; Edward Pree, for appellee.
   Opinion by

Justice Hayes.

“Not to be published in full.”


author: Mr. Presiding Justice John J. Sullivan

text:
    Jack Germann, Minor, by Margaret Germann, His Next Friend, Appellant, v. Ward T. Huston, Appellee.
    Gen. No. 40,265.

      Opinion filed October 31, 1939.
    Harry W. Standidge, of Chicago, for appellant.
    John A. Bloomingston, of Chicago, for appellee.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.

This appeal seeks to reverse a judgment for defend-. ant, Ward T. Huston, entered upon a verdict directed by the court at the close of plaintiff’s evidence.

Plaintiff’s complaint as amended alleged that on April 18, 1933, defendant was in possession and control of a building at 820-826 Belmont avenue, Chicago, Illinois; that defendant “then and there and for several months prior thereto, knowingly, negligently, wrongfully and improperly had, kept, maintained and permitted to be at the rear of said building and extending from the top floor to the first floor thereof, a rope which was, and which defendant knew, or by the exercise of reasonable care would have known, to be an attractive nuisance and that such nuisance attracted children to play thereon”; that1 ‘said rope was situated in a public place near the home of plaintiff, and that said defendants [defendant] then and there unlawfully, negligently, wrongfully and improperly permitted said rope to remain unfastened and not properly fastened, protected, guarded or enclosed and in such condition of danger that one portion of it could be moved upward while another portion thereof was being moved downward, in violation of their [defendant’s] duty to properly lock or otherwise securely fasten and enclose, guard and prevent such dangerous condition of same; that said rope in such condition was a dangerous and attractive nuisance and attracted children to, and they did, play thereon and went upward and downward therewith, and said defendants [defendant] then and there knew, or by the exercise of proper care would have known, of such dangerous condition of said rope and that children daily played thereon”; that ‘ ‘ then and there said plaintiff, a boy of the age of to-wit, nine years, was attracted by said rope and while playing thereon fell therefrom to the ground or pavement below in the rear of -said building, which said ground or pavement consisted or was constructed of cement or other similar material, and by reason thereof said plaintiff then and there sustained” serious and permanent injuries; and that “said plaintiff at and before the time of so sustaining said injuries was in the exercise of ordinary care for a boy of his age, capacity, intelligence and experience.” Defendant’s answer admitted his possession and control of the premises in question, but denied all other material allegations of the complaint and the amendment thereto.

Plaintiff’s theory as stated in his brief is “that cases of this nature are divided into two distinguishable classes — one where a defendant has, and the other where he has not, either actual or constructive notice that an instrumentality on his premises attracts children to and that they do play thereon and that it is dangerous for them so to do, and that the case at bar is within the former class; that for a year or more before the accident the particular rope in question which ran over a pulley at the top of the fourth floor of the building described and extended therefrom to the pavement below, was so located that children could and did swing from one porch to another thereon . . . , and unlike three other similar ropes on said building . . . , it attracted numerous children and others, from 6 to 20 years of age, to, and they did, play thereon daily during most of the hours of the day and until late in the evening . . . , that said rope in its unfastened and unguarded condition was dangerous . . . ; that such facts were, or by the exercise of reasonable care would have been, known to defendant, and that at and before the time of the accident plaintiff, a boy 9 years old, was in the exercise of ordinary care for a boy of his age, capacity, intelligence and experience, and that it was contrary to law for the Court to direct a verdict on the evidence and that the Court should have allowed the jury to pass thereon.”

Defendant’s theory apparently is that the instrumentality involved, situated as it was, did not constitute an attractive nuisance; that plaintiff was guilty of contributory negligence; and that the trial court was justified as a matter of law in directing the jury to find the defendant not guilty.

The evidence disclosed that on April 18, 1933, the building in question was on the northeast corner of Belmont avenue and Clark street, and “faced, part of it on one and part of it on the other street”; that in the rear thereof, over an alley which was paved with cement, there were four ropes of the same kind running-over pulleys which were suspended from beams which extended a few feet beyond the roof of said building; that these ropes descended from the pulleys to the pavement of the alley below; that the rope involved in this case hung loosely over the particular pulley from which it descended and the two ends thereof extended downward to the pavement of the alley, both ends of said rope being always loose and untied except when the children playing with or on same tied one end of said rope to a “banister” or some other part of the porch, in the rear of which the rope “hung”; that plaintiff first saw the rope in question about the fourth day after he moved to Kraft street, nearly a year before the accident; that he was then eight years old; that the rope could be plainly seen a few doors from where he lived on Kraft street, which was one short block east of Clark street; that plaintiff’s sister eleven years old learned about the rope about a week after his family moved to Kraft street and that from that time until the time of the accident she and other children from six to fifteen years of age played on the rope; "that during vacation they played on it from about nine in the morning until nine at night; that from the time plaintiff first saw the rope until the time of the accident, he saw children “from 6 to about 17 of 18” playing on it “about from 8 o’clock to about 9 or 10 . . . then the big boys would come out and play on it . . . about every day”; that “there were not many places for a boy to play around there ’ ’; that he played on the rope as his sister and others did and that he had previously done what the ordinary boy would do in the way of “climbing around”; that when plaintiff and other children played on the rope, in order to fasten one end of same as it hung loose and untied so that they could use the other “strand” on which to slide “they would wrap one end of the rope which had a hook on it, around a 2x4 of the porch, back of which the rope hung, then hook the end of the rope so as to make it hold, and that they would slide down the other part of the rope, the end of which was untied”; that on the night of the accident plaintiff and another boy seven or eight years old, who liyed in the building in question and whose father conducted a bakery therein, went to play on the rope; that plaintiff from the second floor rear porch or on his way up to same called to his boy playmate and asked if the rope was tied; that the other boy answered “yes”; that then both of them slid down the rope from the second, third and fourth floor porches; and that as plaintiff was sliding down the last time the end of the rope, which was tied to the banráster, became loose, the hook on it suddenly went up to the pulley and plaintiff fell violently to the cement pavement below, sustaining the injuries of which he complains. The accident to plaintiff occurred sometime between 7:30 and 9 p. m.

"While one witness was permitted to testify that he reported to defendant’s janitor sometime prior to plaintiff’s injury that children had been playing with and on the rope and had been sliding down same, the court sustained defendant’s objections to other evidence offered by plaintiff as to previous accidents to children playing on the rope as well as to complaints made to and statements of the janitor concerning children playing with said rope. This evidence was clearly admissible and competent to show that defendant knew or by the exercise of ordinary care could have known of the attractive and dangerous character of the rope and pulley apparatus. “It has frequently been held that evidence of other accidents by the same agency in the same condition is competent, not for the purpose of showing independent acts of negligence but for the limited purpose of showing that the unsafe thing or condition causing the particular accident caused others, and that the occurrence of such other accidents tends to show notice to the owner of such dangerous agency. (Moore v. Bloomington, Decatur & Champaign Railroad Co., 295 Ill. 63; City of Chicago v. Jarvis, 226 id. 614; City of Bloomington v. Legg, 151 id. 9.) ” Wolczek v. Public Service Co. of Northern Illinois, 342 Ill. 482.

Defendant’s assertion that plaintiff, a boy nine years old, was guilty of contributory negligence as a matter of law under the facts and circumstances in evidence does not merit serious consideration. “The law is clearly established by great weight of authority, that between the ages of seven and fourteen the question of culpability of the child is an open question of fact and must be left to the jury to determine, taking into consideration the age, capacity, intelligence and experience of the child.” Maskaliunas v. Chicago & Western I. R. Co., 318 Ill. 142.

It is hardly necessary to state that defendant’s contention that “if the plaintiff depended on the Fernstrom hoy (his playmate) to firmly fasten the rope for their joint benefit, then the failure of the Fernstrom boy was imputed to him ’ ’ is without merit.

We then come to the principal question presented for our determination. Was the action of the trial court in directing the verdict for defendant in this cause warranted under the evidence ? In passing upon a similar question in the recent case of Thomason v. Chicago Motor Coach Co., 292 Ill. App. 104, this court quoted from Hunter v. Troup, 315 Ill. 293, at page 110 of our opinion:

“ ‘A motion to instruct the jury to find for the defendant is in the nature of a demurrer to the evidence, and the rule is that the evidence so demurred to, in its aspect most favorable to the plaintiff, together with all reasonable inferences arising therefrom, must be taken most strongly in favor of the plaintiff. The evidence is not weighed, and all contradictory evidence or explanatory circumstances must be rejected. The question presented on such motion is whether there is any evidence fairly tending to prove the plaintiff’s declaration. In reviewing the action of the court of which complaint is made we do not weigh the evidence, — we can look only at that which is favorable to appellant. Yess v. Yess, 255 Ill. 414; McCune v. Reynolds, 288 id. 188; Lloyd v. Rush, 273 id. 489.’ ”

Bearing in mind the rules thus set forth, it is necessary to determine whether plaintiff presented any evidence which fairly tended to prove the material allegations of his complaint. In other words, did the evidence in the record concerning the rope and pulley apparatus, situated,as it was, bring that instrumentality within the attractive nuisance rule. Although there were four rope and pulley arrangements at the rear of different portions of the premises, the rope upon which plaintiff was playing when he was injured appealed particularly to him and other children of the neighborhood because of its close proximity to the rear porches at the various levels from which it might be easily reached. For nearly a year before plaintiff’s accident he and other children ranging upward from six years of age played with the rope and pulley practically daily. Sometimes children would elevate one of their number high in the air by pulling one end of the rope through the pulley after securing the hook on its other end around the child’s belt. At other times, as was done here, the end of the rope with the hook on it was turned one or more times around the 1 bannister ’ ’ at the loAver floor and the hook then caught onto said bannister. After thus fastening the hook end of the rope, plaintiff and his playmate on this and other occasions and many other children repeatedly then Avent to the second, third and fourth floor porches and, after stretching out and securing the unfastened “strand” of rope, which extended down from the pulley, wrapped themselves around same and slid to the ground or pavement. There was evidence that the premises were not inclosed and that the rope and pulley arrangement was clearly Adsible from the street on which plaintiff lived only a short distance away.

To bring this cause within the attractive nuisance doctrine it Avas incumbent upon plaintiff to shoAv that defendant had either actual or constructive notice that the instrumentality on his premises, considered as part of its general environment, attracted children to play thereon, that they did so play and that it was dangerous for them to do so. Inasmuch as plaintiff presented competent evidence that defendant knew, or in the exercise of ordinary care could have knoAvn, that the rope and pulley, located as they were, would reasonably be expected to attract children and that there was a probability of the occurrence of such an accident as happened to plaintiff, in our opinion it was the duty of the trial" court to submit to the jury the question as to whether or not defendant was guilty of the negligence charged in the complaint. As heretofore shown, the question of plaintiff’s care or negligence was also clearly one of fact for the jury.

Although in Darsch v. Brown, 332 Ill. 592, the judgment was reversed and the cause remanded for a new trial because of an erroneous instruction, controlling-principles governing the application of the doctrine of attractive nuisance are enunciated thereinson pp. 596 and 597 as follows:

“ ‘Under our decisions, which are most liberal to children, if the conditions are such that the owner may reasonably anticipate that children of such tender age as to be incapable of exercising proper care for their own safety may by their own instincts be attracted to the dangerous thing and thereby exposed to danger, he will be liable for an injury to a child so attracted, resulting from leaving the machine or dangerous thing exposed. Under such circumstances he would have good reason to expect that children, from their well known habits and nature, would be attracted to the dangerous thing, and its maintenance would amount "to an implied invitation to them, so that they cannot be regarded as voluntary trespassers. (City of Pekin v. McMahon, 154 Ill. 141.) It is a necessary element of the liability that the thing which causes the injury is tempting to children and to constitute a means of attracting* them upon the premises, which the owner should anticipate. The dangerous thing must be so located as to attract them from the street or some public place where they may be expected to be.’

“In Ramsay v. Tuthill Material Co., 295 Ill. 395, it was held that if the owner knew that children came upon the premises and played around the structure, which was dangerous and attractive, it was not essential to his liability that the structure be visible from the street; that if one engaged in any operation dangerous to those coining in contact with it, permits children, who are incapable of appreciating the danger, to come upon the premises and expose themselves to danger, he must take such means to prevent injury to them as will be effective or must exclude them from the premises.”

In O’Donnell v. City of Chicago, 289 Ill. App. 41, where a boy nine years old came in contact with a wire charged with electricity on the top of a pole, 25 feet high, which he had climbed to watch boxing matches being held in a nearby open stadium, this court said at p. 43: “An instrumentality may come within the attractive nuisance rule if it is so placed as to be part of a general environment which is attractive to children. Here the location of the pole gave a vantage point from which to watch the events within the stadium. In Oglesby v. Metropolitan West Side El. Ry. Co., 219 Ill. App. 321, we held that the mere fact that an instrumentality is not in and of itself particularly attractive to children would not exclude it from the application of the attractive nuisance doctrine, and that the question in such cases was whether the owner maintained instrumentalities which, because of their location, could reasonably be expected to attract children. ’ ’

Defendant in his brief set forth the following testimony of plaintiff: “I had been sliding on this rope for sometime; no one invited me to come over and slide on it; the rope was used for raising and lowering garbage ; when I first saw it I did not know what it was for; as soon as I saw the janitor use it for letting down the garbage I knew what it was for. . . . When the janitor saw us sliding on that rope he told us to get away from it; then we would come back; when he told us to get away from it, I understood that to mean to get away from it, . . . it was such fun that we thought we would come back; whenever we would see the janitor coining we would run away; when the janitor was not there we would come back.” Then in support of his contention that even though the instrumentality here was both dangerous and attractive the warning to plaintiff to “go away” from the rope and his understanding of such warning nullified any implication of invitation that might otherwise have existed, defendant cites Wolczek v. Public Service Co. of Illinois, supra, and quotes what the court said therein at pp. 489 and 490:

“The rule recognized in this State as to implied invitation is, that where the owner of the premises maintains a dangerous condition or thing of such a character that he may reasonably anticipate that children, who by reason of tender years are incapable of exercising proper care for their own safety, are likely, because of their childish instincts, to be attracted to the dangerous thing and thereby exposed to dangers, he is required to use reasonable care to protect them from injury, provided it is shown that such dangerous condition or thing is so located as to attract children from the street, playground or place where they have a right to be. . . . The existence of such implied invitation may be disproved by evidence showing that the owner gave notice or warning which such child can understand to keep off the premises. Proof of such warning destroys the implication of the existence of an invitation, and if the child goes on the premises notwithstanding such warning he goes as a trespasser and the owner owes him no duty to protect him against danger.” In the Wolczek case the court also used the following language at pp. 488 and 489:

“The owner of land, however, who allows children to play on his premises must use ordinary care to keep the premises in a safe condition, for the children, being without judgment, are likely to be drawn by childish curiosity into places of danger. (Ramsay v. Tuthill Material Co., 295 Ill. 395.) This rule applies where the owner expressly or by implication invites children onto the premises. There being no evidence here that the plaintiff in error knew of or expressly consented to the presence of the children on its towers, the rule as to express invitation does not apply.”

It will be noted that in the Wolcseh case the court distinguished between an “express” and an “implied” invitation by the owner of premises to children to play thereon and stated that the rule as to express invitation is applicable where the owner of premises knew of or expressly consented to the presence of children playing on same. On the other hand where there was no evidence that the owner of premises knew of or expressly consented to the presence of children playing thereon, the rule of express invitation could not apply but, if an owner maintained on his premises a condition or thing that was inherently dangerous and of a nature that would allure and attract children thereto to play, such condition or thing would in and of itself constitute an implied invitation to engage in such play. Since the plaintiff in the Wolcseh case was injured on the only occasion when he was on the premises involved and there was no evidence that the owner thereof knew that children played on its property, there was no question of express invitation in that case, but the court there did hold that there was substantial evidence of an implied invitation. The Wolczek case cited with approval Ramsay v. Tuthill Bldg. Material Co., 295 Ill. 395, which involved an express invitation. The facts in the Ramsay case as to knowledge of the owner of the premises of the habit of children coming on such premises to play are practically identical with the facts in that regard in the instant ease. In holding that the rule as to express invitation was applicable to such facts, notwithstanding that employees of the owner of the premises or instrumentality “frequently told the children to stay away,” the court said in that case at pp. 401 and 402.

“In this case it appears that for some time children had been in the habit of coming on the premses of plaintiff in error, playing in the sand on the ground, going up the ladder to the top of the elevated structure, jumping into the sand-bins, playing in the sand there, and going down through the openings in the chutes. This was known to the employees of plaintiff in error, who testified that they frequently told the children to stay away, but no effective means were taken to prevent their coming there; so that here the defendant, by taking no effectual means to prevent it, permitted little children, too young to have judgment and exercise care to protect themselves from danger, to play constantly about its premises where it knew that they were habitually exposed to danger which they did not realize and which was likely to result in serious injury or death to some of them, and which actually has resulted so. Under such circumstances the owner of property is responsible for the injury which has occurred by reason of its negligence in failing to use adequate means to keep children away from the danger which it has created.

<6

“If a person engaged in any operation which is dangerous to others who come in contact with it, permits children who are incapable of appreciating the danger to come upon his premises where they are exposed to danger, there is certainly an obligation in humanity to take such means to prevent the injury, either by excluding* them from his premises or protecting them while they are on his premises, as will be effective, and this obligation imposes upon him the legal duty to do those things.”

We are impelled to hold that whether defendant knew or should have known that children were likely to be attracted to the rope and pulley apparatus involved here, situated as it was, whether said apparatus was inherently dangerous, whether defendant should have anticipated such an accident as occurred to plaintiff, whether the rope and pulley considered as part of its general environment was inherently attractive to children, whether plaintiff was in the exercise of ordinary care, and in short whether defendant was guilty of maintaining an attractive nuisance, were all questions of fact which should properly have been submitted to the jury.

For the reasons stated herein the judgment of the superior court is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Friend and Scanlan, JJ., concur.


text:
    William F. Pelham, Respondent, v. Charles B. Hopper, Petitioner.
    Gen. No. 40,757.

      Opinion filed October 31, 1939.
    Rehearing denied November 16, 1939.
    Cattell & Waldron, of Chicago, for appellant; W. Scott McDowell, of Chicago, of counsel.
    March & Rossiter, of Chicago, for appellee; Benjamin F. March, Lyle H. Rossiter and W. D. Sellers, all of Chicago, of counsel.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.

This action was brought by plaintiff, William F. Pelham, the payee of a promissory note in the sum of $3,750, dated October 1, 1929, against the maker thereof, Charles B. Hopper, defendant, to recover the unpaid balance of principal due thereon amounting to $2,750 and interest from October 31, 1930, when the last payment was made on account of said note. The jury having found the issues against plaintiff, a motion for a new trial was granted. Defendant’s petition for leave to appeal from the order of the trial court granting a new trial having been allowed by this court, that order is before us for review.

Plaintiff’s statement of claim is in the usual form with a copy of the note attached. Defendant’s sole defense of “no consideration” is set forth in his third amended affidavit of merits as follows:

“Charles B. Hopper makes oath and says that he is the Defendant in the above entitled cause and that he verily believes that he has a good defense to this suit upon the merits, to the whole of the Plaintiff’s demand.

“Affiant further states that the defense of the Defendant to said suit is as follows:

“(1) There was no consideration for the execution of the note sued upon.

“ (2) The Defendant was not at the time of the giving of said note, indebted to the Plaintiff upon any consideration whatsoever.

“(3) The promise of the Defendant was a mere, naked promise, without any good or valuable consideration therefor.

“ (4) There is a total and complete lack of consideration for the note sued upon.

“ (5) The Defendant is not indebted to the Plaintiff for the sum sued upon or for any other sum, whatsoever.”

The promissory note involved dated October 1, 1929, including the indorsements on the reverse side thereof showing payments by said defendant of $400 on January 2,1930, and $600 on October 31,1930, on account of the principal of the note, was offered and admitted in evidence. The execution of the note by Hopper is not contested. It appeared from the testimony of defendant that July 1, 1928, he purchased shares of capital stock of the William F. Pelham Co. for $5,000 from plaintiff, the president and a director of said corporation ; that certificates for such shares were duly issued and delivered to defendant; and that defendant paid $1,250 of said purchase price prior to October 1, 1929, leaving $3,750 due on same on said date, for which the note in question was given.

The evidence of defendant not only did not sustain his sole defense of want of consideration but clearly refuted such defense. “The defense of want of consideration for a note is not available where it appears that the payee sold stock in a certain business to the maker, even though the stock was not as valuable as the purchaser thought, or was worthless, there being no evidence of fraud.” Crowther v. Bell, 190 Ill. App. 48.

“ ‘It is no defense to an action on a note, that the article for which it was given proved to be worthless, where there is no fraud, or failure of title, and no express warranty. Where a party gets all the consideration he voluntarily and knowingly contracts for, he will not be allowed to say that he got no consideration.’ ” In re Estate of Berbecker, 277 Ill. App. 201.

But one issue was presented for trial in this cause and that was whether or not there was a total want or failure of consideration for the note. Such confusion and difficulty as have arisen have been caused by the erroneous admission in evidence by the court of matters entirely extraneous to the only issue raised by the pleadings. The purported violation of the Blue Sky Law by plaintiff in the sale of the Pelham Company stock to defendant had no place in the trial of this case. Neither did the bankruptcy of the Pelham Company in 1933 nor its liquidation in 1934, four and five years, respectively, after the execution of the note by defendant. The purpose of defendant in presenting the evidence as to the bankruptcy and liquidation of the Pelham Company was to show that the shares of capital stock of that company, which he had purchased and paid for with his note on October 1,1929, had become worthless. Such evidence was incompetent and prejudicial. Many business concerns which were sound and solvent on October 1,1929, were unable to weather the depression years up to 1933 and since. Obviously the subsequent failure of a company cannot constitute a defense to a claim on a note given in payment for the capital stock of such a company at a time when same was solvent. As was said in In re Estate of Berbecker, supra, “It is no defense to an action on a note, that the article for which it was given proved to be worthless, where there is no fraud, or failure of title, and no express warranty.” Neither fraud, failure of title nor express warranty in the sale of the stock was alleged or proven by defendant.

What defendant really relied upon at the trial and attempted to show by way of defense was that plaintiff violated the Blue Sky Law in that the corporate stock which he sold to defendant and for which the note in question was given in payment was not qualified under the act and was not exempt from qualification. If the provisions of the Blue Sky Law afforded defendant a defense to this action it was incumbent upon him to plead such a defense specially and in order to avail himself of any right of defense conferred by that statute it was necessary for him to allege such ultimate facts as would bring him within its terms. That evidence of failure to qualify stock under the Illinois Securities Act [Ill. Rev. Stat. 1937, ch. 121½, § 96 et seq.; Jones Ill. Stats. Ann. 13.01 et seq.] is not admissible when the sole defense interposed by the affidavit of merits is “no consideration” is elementary and requires no citation of authority. That defendant recognized the necessity of pleading specially his purported defense under the Blue Sky Law is apparent from the fact that in three successive affidavits of merits filed by him prior to that upon which the case went to trial, he alleged substantially that the common stock of the William F. Pelham Co. was not qualified under the Illinois Securities Act and was not exempt from qualification. All three of these affidavits of merits were stricken on plaintiff’s motion. Defendant apparently-abandoned his attempt to plead plaintiff’s violation of the Bine Sky Law as a defense because he found it impossible to allege or prove the facts necessary to bring himself within its essential terms. In his brief defendant sets forth par. 289, ch. 32, Cahill’s Ill. St. 1927 (sec. 36, Illinois Securities Act) as follows:

“It shall be unlawful for any officer, director, solicitor, broker or agent, to sell or offer for sale any securities in Class ‘D’, in any other manner or form than specifically set forth in the information required to be filed in section 9 of this Act, and any offer or sale upon any other terms or conditions other than set forth, shall be considered prima facie evidence that such officer, director, trustee, solicitor or agent offered or sold same for the purpose of defrauding the investor to whom such security was offered or sold. ’ ’

Defendant, however, neither quoted nor referred to subsection 1 of section 37 and section 40 of said act, which provide as follows :

“37. (1) Every sale and contract of sale made in violation of any of the provisions of this Act shall be void at the election of the purchaser, and the seller of the securities so sold, the officers and directors of the seller, and each and every solicitor, agent or broker of or for such seller, who shall have knowingly performed any act or in any way furthered such sale, shall be jointly and severally liable, in an action at law or in equity, upon tender to the seller or in court of the securities sold, to the purchaser for the amount paid, the consideration given or the value thereof, together with his reasonable attorney’s fees in any action brought for such recovery.

“40. No prosecution for violation of any provision of this Act shall bar or be barred- by any prosecution for the violation of any other provisions of this Act or of any other statute; but all prosecutions and all civil actions to recover money or for other purposes under this Act or based upon any provision of this Act must be commenced within five years after the commission of the act complained of.” (Italics ours.)

It will be noted that under the foregoing subsection 1 of section 37 sales of securities made in violation of the provisions of the act are not declared void but merely voidable. In other words they “shall be void at the election of the purchaser. ’ ’ It will also be noted that under section 40 the purchaser must so elect to declare the sale void within five years from the date of the transaction.

As heretofore shown the note in evidence was executed by defendant and delivered to plaintiff on October 1, 1929. This action was commenced November 2, 1937. It is undisputed that defendant did not within five years from the date he purchased the stock and gave his note in payment thereof elect to void the sale and tender to plaintiff the securities purchased. Sales made contrary to the provisions of the Illinois Securities Law are voidable only and the buyer’s right to recover from the seller is based upon rescission of sale. (Glen v. Dodson, 347 Ill. 473.) There was no rescission by defendant of the sale of the stock in this case. If a sale of securities made in violation of the securities law is not rescinded within five years under the Illinois statute it is valid and binding to all intents and purposes. Since it clearly appears that any right defendant may have had to rescind his purchase of the stock and recover from plaintiff such amount as he paid for same was barred by his failure to elect to do so within the five years’ limitation prescribed by the statute, it necessarily follows that defendant is precluded from urging any claimed violation of the Blue Sky Law as a defense to plaintiff’s claim on the note.

Even though it be assumed that all the evidence presented by defendant was competent, still no legal defense was shown under defendant’s affidavit of merits or otherwise. The evidence adduced by defendant discloses that the stock sold was that of a solvent corporation at the time of the transaction, that the sale was fair, that there was no fraud, that there was no false warranty, that the sale of the stock was not rescinded within five years from the date of the sale as provided in the Securities Act and that there was no tender of the stock purchased by defendant even upon the trial. The verdict for defendant in this cause must have resulted from prejudice and sympathy engendered'in the minds of the jurors by the admission of the totally incompetent evidence heretofore referred to.

For the reasons stated herein the order of the municipal court allowing plaintiff’s motion for a new trial is affirmed.

Order affirmed.

Friend and Scanlan, JJ., concur.