author: Mr. Presiding Justice Taylor

text:
    Margaret E. Cooley, Appellee, v. Vernon P. Cooley, Appellant.
    Gen. No. 31,241.
    1. Divorce — subsequent acts as affecting right to alimony. A wife who obtains a divorce from her husband on the ground of his adultery does not lose her right to alimony by her subsequent moral derelictions.
    2. Appeal and error — appeal from order as not appeal from, later order fixing a condition to first appeal. An appeal from an order in a proceeding to modify alimony payments but not from the later order fixing as a condition of appeal the payment of the respondent’s costs, does not allow the petitioner to review in the Appellate Court the chancellor’s making such condition to an appeal.

      Appeal by defendant from the Superior Court of Cook county; the Hon. Oscar Hebel, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed June 13, 1927.
    Henry O. Nickel, for appellant; Daniel S. Wentworth, of counsel.
    Brown, Fox & Blumberg, for appellee; Jacob Logan Fox and Karl Edwin Seyfarth, of counsel.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

On June 28, 1923, in the superior court of Cook county, a decree of divorce was entered in favor of Margaret E. Cooley against Vernon P. Cooley, based on proof of his adultery. The decree provided, among other things, that he should pay to her, as and for permanent alimony and maintenance, the sum of $100 for each and every month thereafter, commencing on the 19th day of June, A. D. 1923, and payable monthly, in advance, until the further order of the court. About two years and seven months afterwards, on February 1, 1926, in the same cause, Vernon P. Cooley made a motion, supported by a verified petition, that an order be entered discontinuing the monthly payments of alimony, and that the decree of June 28, 1923, to that extent, be vacated and annulled.

Pursuant to an issue being made by the petition, an answer of Margaret E. Cooley as respondent, and the replication of the petitioner, and after the taking of testimony and a hearing before the chancellor, an order was entered on April 6,1926, which — after reciting, among other things, that the income of the defendant had been greatly reduced since the rendition of the decree of June 28, 1923 — provided that from and after February 1, 1926, the defendant should pay to the complainant, as permanent alimony and maintenance, the sum of $50 per month, payable on the first day of each month, in advance, in lieu of the sum of $100 per month, as directed in and by the decree of June 28, 1923, such payments to be made until the further order of the court. This appeal is from the order of April 6, 1926.

It is the theory of the petitioner, Vernon P. Cooley, that, on October 19,1924, and January 20 and April 7, 1925, the respondent, Margaret E. Cooley, was guilty of such acts of misconduct that she thereby forfeited all rights to any alimony granted under the decree of June 28, 1923.

It is the theory of the respondent (1) that the petitioner failed to prove, by a preponderance of the evidence, the allegations of the petition concerning the respondent’s misconduct, and (2) that even if she were guilty of the misconduct charged in the petition, it was not sufficient to deprive her of her rights to alimony.

(1) The respondent’s alleged misconduct. After the entry of the decree of divorce, the respondent lived in a cottage at Lake Wawasee, Kosciusko county, Indiana. The petitioner undertook to prove, by the testimony of five witnesses, three of them police officers, and two of them deputy sheriffs, that the respondent, on the three dates above mentioned, was guilty of certain misconduct.

The first date is that of October 19, 1924. On the evening of that day, the respondent and one Fisher, a caretaker employed by her and one of her neighbors, while returning from South Bend, Indiana, in an automobile which belonged to Fisher, were stopped and taken to the police station. Fisher was charged with intoxication, and with driving an automobile while in that condition. The respondent was detained at the police station for the rest of the night, and in the morning allowed to leave. One Quick, a police officer, who arrested both Fisher and the respondent, testified that her talk was incoherent, and that she smelt of liquor; that her clothes were in a disorderly condition; that she used profane language, and called him a vile name; that after he had questioned her at the station, she was booked and placed in a cell.

One Hummel, a police officer, who was night captain, testified that on the night in question, the respondent was brought in, for intoxication, by Quick; that she staggered and her breath smelt of liquor; that her clothes and hair were disarranged; that she said she had been drinking wine; that after talking with her, he ordered her and Fisher locked up; that just before she was locked up, she said that if she were arrested and locked up it would interfere with her drawing alimony, and that she would lose her $100 a month.

The evidence of the respondent is that on the occasion in question, she had not drunk any intoxicating liquor, was not intoxicated, and did not use any profane or vulgar language.

The second date is that of January 20, 1925. In the morning of that day, between one and two o’clock, Quick and one Snavely, a police officer, were detailed to make an investigation. They went out and found Fisher and the respondent, and a Mrs. Jackson, in an automobile, returning from South Bend, Indiana. It is the evidence of Quick that they stopped the automobile, and he took Fisher with him to the police station, and Snavely took the two women to the station; that at the station the respondent stated that all three of them had been drinking wine. It is the evidence of Hummel, a police patrolman, that he saw all three of them at the station, and that the respondent said they had been drinking wine, and that the automobile had been in a collision with a street car. It is the evidence of Snavely that he went out with Quick, and, after trailing the automobile in which the respondent, Fisher and a woman named Mrs. Jackson, were, that officer Quick took Fisher in the police car to the station, and he, Snavely, drove the two women back in Fisher’s automobile; that when the Fisher automobile was stopped, Fisher was on the front seat, driving, and the respondent and Mrs. Jackson were in the rear seat; that the women’s clothes and their hair were mussed up; that the respondent asked him and Quick if they were looking for “booze”; that to him, Snavely, it looked like a booze party.

The respondent testified that nothing was said about liquor; that they were not asked if they had drunk anything ; arid that nothing was said about liquor on their breath.

The third date is that of April 7, 1925. On April 7, 1925, towards midnight, one Drake, a Federal agent, Pittinger, a police officer, Maloy, sheriff of Kosciusko county, and one Banks, deputy sheriff, entered the cottage of the respondent, under authority of a search warrant. It is the evidence of Maloy, the sheriff, that they found Fisher and the respondent asleep in the same bed; that the other officers, upon searching, found some moonshine; that the respondent called them vile names; that he smelt liquor on the respondent’s breath; that she would try to get hold of them, and would dance and curse them, and would break into a laugh; that she was arrested and was tried in the circuit court of Kosciusko county, being charged, with William Fisher, with fornication. Banks, substantially, corroborated the evidence of Maloy. He also testified that he found two quarts of whisky that the respondent said one George had brought to her; that on the way from the cottage to the city, the respondent conducted herself in a very disorderly way.

On cross-examination, he testified that Pittinger found three pints of moonshine, in addition to what he, the witness, found.

On behalf of the respondent, it was shown that in the criminal case for fornication, based on evidence pertaining to this particular raid, a jury found her not guilty of the offense charged.

The respondent testified, as to her alleged misconduct on April 7, that there was no intoxicating liquor on the premises, and denied that she ever had illicit relations with Fisher.

Considering the evidence of Quick and Hummel as to the alleged misconduct on October 19, the evidence of Quick and Suavely as to the alleged misconduct on January 20, and the evidence of Maloy, the sheriff, and Banks, the deputy sheriff, as to the alleged misconduct on April 7, we are impelled to the conclusion, notwithstanding the categorical denials of the respondent, that it was proven, by a preponderance of the evidence, that the respondent was guilty of illicit relations with Fisher, and of drunkenness and disorderly conduct.

Although quite a volume of testimony was taken before the chancellor on the subject of her alleged misconduct, it is our opinion that he did not undertake definitely to pass upon whether it proved illicit relations, drunkenness and disorderly conduct, but held that whether such misconduct was proven or not, she was still entitled to alimony.

The question then arises, upon this review, whether proof of such misconduct extinguishes her right to alimony. We do not think it does. Just what quantity and quality of misconduct will do so, the decided cases do not scientifically set forth. In Durrell v. Durrell, 211 Ill. App. 282, the court said, “A decree for the payment of alimony is properly changed so as to discontinue further monthly instalments where it appears that the wife is leading a life of prostitution.” In Cole v. Cole, 142 Ill. 19, where it was admitted, by demurrer, that the wife, aftér the.divorce, had been guilty of adultery, it was held that that did not prevent her from being entitled to continuing alimony. The court in that case said that, under certain circumstances, which are there mentioned, it might he, “unconscionable to compel the husband, by his daily labor, to support his divorced wife in idleness and prostitution. Not only reasons of justice, but authority, would seem to justify the court, in such a case, in the exercise of its general chancery powers, to modify or revoke its former order.”

There seems to be no doubt but that it is the law in this state that a woman who obtains a divorce from her husband on the ground of adultery, thereafter owes to him no greater duty to lead a pure and virtuous life than she owes to society generally; and that a claim by her upon him, under an order for the payment of alimony, which is, in and of itself, merely a pecuniary matter, is not in any way affected by what may be called, the moral quality of her post-divorce conduct. Cole v. Cole, 35 Ill. App. 544, affirmed in Cole v. Cole, 142 Ill. 19; Rang v. Rang, 211 Ill. App. 385; Smith v. Johnson, 321 Ill. 134.

Counsel for the petitioner cite the following Illinois cases: Spitler v. Spitler, 108 Ill. 120; Balswic v. Balswic, 179 Ill. App. 118; Hickling v. Hickling, 40 Ill. App. 73; Zimmerman v. Zimmerman, 242 Ill. 552; Rybakowicz v. Rybakowics, 290 Ill. 550, and Dorian v. Dorian, 298 Ill. 24. Considering the facts in the present case, however, we do not find that any of those cases is in point.

In the instant case, where the evidence shows general social misconduct which bears no relation to, and affects the petitioner in no pecuniary way, it is not sufficient, in and of itself, to justify putting an end to the respondent’s right to alimony, and it may be added, by way of emphasis, especially is that true when, as here, the divorce was granted not on account of her fault, but on-account of her husband’s adultery.

It is urged for the petitioner that law and morals are coterminous; but though the tendency of the law is in that direction, it is not yet wholly true. Pound, in Law and Morals (1924), p. 41, says,

“Legal precepts sometimes are, and perhaps sometimes must be, at variance with the requirements of morals. Yet such a condition is not something of which the jurist is to be proud. It is not a virtue in the law to have it so. Nor are such conditions required, in a certain number, in order to demonstrate that law is one thing and morals another. So far as such things are more than historical anomalies that ought to be pruned away, they arise from inherent practical limitations upon effective legal action, which make it impossible or inexpedient in a wise social engineering to attempt to secure certain claims or enforce certain duties to the extent that might be desirable from a purely ethical standpoint.”

It is further contended that the chancellor erred in conditioning the appeal from the decree upon the payment, by the petitioner to the respondent, of the sum of $375, as and for her costs and expenses in the defense of this appeal.

The record shows that on April 6,1926, the chancellor entered an order that the petitioner pay $50 instead of $100 a month as alimony; that on April 12, 1926, upon a hearing, exceptions of the petitioner to the entry of the order of April 6, 1926, were overruled; that the petitioner then prayed an appeal to the Appellate Court; that that appeal was allowed, upon the petitioner “filing an appeal bond within thirty (30) days * * * in the sum of fifteen hundred dollars ($1500.00), to be approved by the court, and a certificate of evidence within sixty (60) days from the date hereof, and upon * * * Vernon P. Cooley paying within said 90 days from the date hereof to * * * Margaret E. Cooley, the sum of three hundred seventy-five ($375.00) dollars, as and for her costs and expenses in the defense of said appeal”; that on May 4, 1926, an appeal bond was approved by the chancellor and duly filed; that in the appeal bond the conditions are recited as follows:

“That whereas, the said Margaret E. Cooley did, on the 6th day of April, A. D. 1926, * * * recover an order against the above bounden Vernon P. Cooley for the sum of $50.00 * * * per month, as permanent alimony, besides costs of suit; from which said judgment * * * the said Vernon P. Cooley has prayed for, and obtained an appeal to the Appellate Court * * * .
“Now, therefore, if the said Vernon P. Cooley shall duly prosecute his said appeal with effect, and moreover pay the amount of the judgment, costs, interests and damages rendered, and to be rendered, against him in case the said judgment shall be affirmed in said Appellate Court, then the above obligation to be void, otherwise to remain in full force and effect.”

With the record in that condition, it is quite obvious that the appeal was taken from the order of April 6, and not from the order of April 12. A somewhat similar situation was recently considered by this court in the case of Rosenfeld v. Horwich, 221 Ill. App. 304. As the record stands, it does not appear that the respondent made any objection to the condition attached to the giving of the bond, that is, that the petitioner should pay the respondent in 90 days the sum of $375, as and for her costs and expenses in the defense of the appeal. The appeal was taken only from the order of April 6, and the bond so recites. Such being the situation, we are bound to infer that the failure to mention the order of April 12, 1926, clearly indicates that no objection or exception was taken by the petitioner to that order. We do not know, from what the record shows, but that the petitioner was entirely satisfied with the provision that was created as a prerequisite to an appeal. In our opinion, the failure of the petitioner to appeal from the order of April 12,1926, precludes him from raising any objection to that order on this appeal.

For the reasons stated, the order of the chancellor will he affirmed.

Affirmed.

O’Connor and Thomson, JJ., concur,


source: Caselaw Access Project

license: Public Domain

text:
    Christine T. Egan, Appellee, v. W. Bradshaw Egan, Appellant.
    Gen. No. 31,313.
    1. Appeal and error — when certificate of evidence is necessary. On appeal from an order awarding alimony pendente lite, the Appellate Court will not presume in the absence of a certificate of evidence, and in the absence of the evidence taken before the master, that the evidence taken before the chancellor warranted the findings of facts recited in the order.
    2. Masters and Commissioners — attaching evidence as requisite to report. Evidence taken before a master should be attached to his report and brought up with it so that the chancellor can determine exceptions made to the master’s findings.
    3. Equity — how chancellor should obtain evidence further than that taken before master. If the chancellor believes that further evidence should be heard than what was had before the master in a suit for separate maintenance, the matter should be re-referred therefor.
    4. Equity — chancellor’s considering master’s report with new evidence before himself as error. It is error for a chancellor to consider a master’s report, which means findings without evidence, in conjunction with new evidence before himself.
    Appeal by defendant from the Circuit Court of Cook county; the Hon. John R. Caverly, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Reversed and remanded.
    Opinion filed June 13, 1927.
    Charles E. Erbstein and Benjamin B. Davis, for appellant.

      Silber, Isaacs, Silber & Woley, for appellee; Martin J. Isaacs and Clarence J. Silber, of counsel.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

This is an appeal by the defendant, W. Bradshaw Egan, from, a decree of the circuit court, ordering him to pay to the complainant, Christine T. Egan, his wife, $1,000 a month, as temporary alimony.

On May 19,1926, the complainant filed a bill of complaint, in which she alleged, among other things, that she and the defendant were married on November 28, 1908, and lived together as husband and wife until December 27, 1924; that he abandoned her without fault on her part, and has since refused to live with her; that there was one child, a boy, who is now 13 years of age, born of their marriage, and who is now in her custody and under her care.

It is further alleged in the bill of complaint that the defendant owned $300,000 worth of real and personal property, and that his income was, at least, $50,000 a year.

The bill prayed that the defendant be compelled to make proper provision for the separate maintenance and support of the complainant and their child.

On the same day, the complainant filed a petition, asking for a reasonable sum for her support and maintenance, and that of her child, pending the final determination of the separate maintenance suit, and that she be awarded a reasonable sum for court costs and counsel fees. The petition further set forth that the defendant is the owner of property in excess of $300,000; that he is vice president of R. E. Wilsey & Company, engaged in the investment securities business ; that his income aggregates in excess of $50,000 a year; that the defendant is 45 years of age, and able to take care of and support his family in the condition in which they have been accustomed to live; that about the time the defendant abandoned the complainant, he represented to her that his income was only $20,000 a year; that he was willing to pay her, for the support of herself and child, one-half of his income; that believing those representations, “she agreed to accept such sum for the support of herself and child”; that he has discontinued paying even that amount, and since the first of March, 1926, has paid to her only the sum of $500; that in order to harass and annoy her, and force her to consent to a divorce, he notified all tradesmen with whom she had been accustomed to deal, disclaiming any responsibility for her indebtedness, even for necessities, and had so impaired her credit that it was difficult for her to secure credit for the usual necessities of life. The petition prayed that she be awarded a reasonable sum for the support and maintenance of herself and their child, pending the final determination of the separate maintenance cause, and that she be awarded a reasonable sum for cost of litigation and employment of counsel.

On June 15, 1926, the court referred the petition of the complainant “for an allowance pendente lite for maintenance and alimony, ’ ’ to Master in Chancery Bicek, “to hear such testimony as either party may produce * * *; that he investigate the income of the defendant from the date of the separation of the parties and that he report his recommendation as to alimony and solicitor’s fees as speedily as possible. And the defendant voluntarily agreeing to pay the complainant within five days $1,000, the motion for alimony is hereby continued until the Master reports.”

On June 23, 1926, the defendant filed an answer to the bill of complaint. By the answer, the defendant denied that he abandoned the complainant without fault on her part; denied that she faithfully discharged her duties as a wife; denied that he is possessed of real and personal property to the value of more than $300,000, or that his annual income is $50,000 and denied that the complainant is entitled to the relief she prays.

On July 28,1926, the report of the master dated July 19, 1926, was filed. The master found that the property and assets of the defendant, as disclosed by the evidence, amounted to, approximately, $173,405, and, the property and assets of the complainant, to $21,075;’ and that the income of the defendant, as disclosed by his income tax return for the years 1921 to 1925, both inclusive, amounted to $140,238.31. The master recommended that during pendency of the suit complainant be permitted to remain in possession of certain property in Highland Park, which was their homestead, and that pending final determination of the separate maintenance-suit, the defendant be ordered to pay to her on August 1, 1926, and each month thereafter, the sum of $1,000 for the support and maintenance of the child and herself, and that he pay to her the sum of $2,500 for temporary solicitor’s fees.

Attached to the master’s report are certain objections, both on behalf of the complainant and the defendant.

Attached to what purports to be the original report of the master, and following the objections, there appears a supplemental report dated July 26,1926. The supplemental report recites that certain objections, both on behalf of the complainant and the defendant, to the original report were allowed, and “that pending the final determination of this cause, the defendant be ordered to pay to the complainant the sum of $800.00 per month for the support and maintenance of the complainant and her child,” and that the defendant be ordered to pay $2,500 for her temporary solicitor’s fees in- the prosecution of her suit.

The record shows that on August 6, 1926, the complainant filed five exceptions of the master’s report, one of which charges that the amount allowed for ternporary alimony is less than is justified by the testimony; the others pertain to the defendant’s income and to the computation of the master being based upon the defendant’s income tax reports instead of the books of his company.

The record shows that on August 7,1926, the defendant filed four exceptions, one of which charges that the recommendation of $800 a month is unjust, excessive and contrary to the evidence; the other three pertaining to certain accounts and the allowance of solicitor’s fees.

On August 27, 1926, the order, from which this appeal is taken was entered. It recites, among other things, that the matter coming on again for hearing, “and the Master now having made his report and the court having considered said Master’s report and other evidence in said court,” and it appearing that the defendant was vice president and a director of B. E. Wilsey & Company, and that his compensation was based upon commissions; that for the year 1924 his earnings amounted to $39,003.13, and that he withdrew from the firm $42,139.50; that for the year 1925 his commissions amounted to $50,266.25; that his dividends amounted to $15,000, and total earnings for that year, $65,314.79; that for the first five months of the year 1926, his commissions amounted to $10,396.24, which, with dividends and other currency received, made his total earnings for that period $27,830.68; that during the same period of time, he withdrew from the firm $33,306.97.

And it appearing to the court that the defendant had been accustomed to pay to the complainant for her and her child’s maintenance, and the expenses of the household, between $1,000 and $1,500 each month, and it appearing to the court that the complainant was entitled to maintain her status in life as it existed prior to the separation of the litigants, and in order to do so, requires a monthly payment of $1,000, and the court finding that the defendant was able to pay that amount per month, “It is ordered that the defendant pay to the complainant, as alimony pendente lite, the sum of $1,000.00 per month.”

The order also provided that $2,500 be paid to the complainant for solicitor’s fees, and recited that there was no objection to that amount.

The order also provided that the complainant continue to occupy the homestead until the further order of the court.

The record shows that on August 28,1926, on motion, of the solicitor for the complainant, the exceptions of the complainant to the report of the master were sustained.

This _ appeal is taken by the defendant from the above mentioned order of August 27,1926, allowing the complainant $1,000 a month.

It is contended on behalf of the defendant that the order requiring the payment of $1,000 per month as temporary alimony is excessive, and that the order is erroneous “in not providing that the payments under it shall be conditioned upon the defendant’s failure to pay under the agreement of the parties and for the application of so much as was paid under the order, upon said agreement.”

It is contended by the complainant that as the testimony taken before the master, and certain exhibits were not preserved and retained with his report; that as there is" no certificate of the evidence taken before the court at the time of the entry of the order, although. the order itself recites that evidence was heard by the court; that as the court heard evidence in open court; that as findings of fact were recited in the order, it will be presumed that they were warranted; that if the defendant was dissatisfied with the findings of fact on which the decree was based, he should have brought the testimony and evidence to this court, and that, failing to do so, this court is bound to presume the evideuce warranted the findings of fact as recited in the decree.

As shown in the history of the proceedings set out above, the petition for allowance of temporary alimony was referred to a master in chancery. The order of reference was “to hear such testimony as either party may produce * * *, and that he report his recommendation as to alimony * * The record shows that, pursuant thereto, hearings were had before the master; that testimony was taken and exhibits introduced; that he made an original and a supplemental report and certain recommendations; that objections thereto were filed on behalf of the respective parties, and were overruled; and that the reports were finally filed, but contained none of the evidence which was taken before the master at the hearings which took place before him.

When, therefore, the matter came up before the chancellor on exceptions to the master’s reports, and he considered the master’s reports, and, as recited in the order of August 27,1926, “having considered said Master’s report and other evidence in said court,” he made specific findings of the earnings of the defendant for the years 1924 and 1925, and part of the year 1926, and findings in regard to the amount which the defendant had been accustomed to pay the complainant for her and her child’s maintenance, and the expenses of the household, and that she was entitled to maintain her status in life as it existed prior to their separation, and to do so it would require a monthly payment of $1,000, and that the defendant was able to pay that amount per month, and then ordered that the alimony pendente lite be fixed at $1,000 per month, are we entitled to presume, in the absence of a certificate of evidence, and in the absence of the evidence taken before the master, that the evidence taken before the chancellor warranted the finding of facts as recited in the order? We do not think so.

The master’s original report recommended $1,000 per month, and his supplemental report recommended $800 per month, but the order of the court fixed the amount at $1,000 per month. The record shows that, on motion of the solicitor for the complainant, the exceptions of the complainant to the report of the master were sustained, and that one of those exceptions was to the effect that the recommendation of the master that the sum of $800' a month be allowed for temporary alimony was less than was justified. The decree informs us that the chancellor, in changing the amount from $800 per month, as recommended by the master, to $1,000 per month, considered the master’s report and other evidence taken before himself. That was improper. The evidence taken before the master should have been attached to the report, and brought up with it, so that the chancellor might determine the exceptions made to the master’s findings, and if the chancellor were of the opinion that further evidence should be taken, the matter should have been re-referred for that purpose. It was error for the chancellor to consider the master’s replort, which means considering his findings without the evidence, in conjunction with new evidence taken before the chancellor, himself. Central Illinois Public Service Co. v. City of Sullivan, 294 Ill. 101; Central Illinois Public Service Co. v. Swartz, 284 Ill. 108.

Accordingly, the interlocutory decree of August 27, 1926, is reversed and the cause remanded.

Reversed and remanded.

O’Connor and Thomson, JJ., concur.


author: Mr. Presiding Justice Taylor Mr. Justice Thomson

text:
    Harry S. Holmberg, Administrator of the Estate of Roy H. Holmberg, Deceased, Appellee, v. City of Chicago and Harry Bairstow, Appellants.
    Gen. No. 31,320.
    1. Evidence — what a scintilla of evidence is. A scintilla of evidence, at its maximum, is that evidence which merely gives rise to a faint suspicion, which is not enough to take a question to the jury.
    2. Trial — facts closely contested in evidence, for jury. If the facts in a case are closely contested in the evidence the case should be given to the jury rather than be left to the judgment of the trial judge alone.
    3. Highways and streets — properly guarding sand pile in city street as jury question. In an action by a father for the death of Ms 11-year-old son by smothering in a sand pile into which he had dug and wMch defendant city had allowed the defendant contractor to pile some 8 feet high in the public street, the question whether the defendants were negligent in not properly guarding the pile as a dangerous and attractive nuisance to children of tender years, is for the jury to determine.
    4. Highways and streets — location of attractive nuisance in public street. That an 8-foot high sand pile in which a boy of tender years was suffocated was in a public street, is important in determining whether the evidence justified submitting to the jury the action of the boy’s father to recover damage for his son’s death from the city and the contractor whom it allowed to place the sand in the street.
    5. Highways and streets — instruction reciting ordinance against storage in public street. An instruction was not erroneous in reciting an ordinance which made it unlawful to occupy a street for storage, in an action for damages by the father of a 11-year-old boy suffocated in an 8-foot high pile of sand placed in the city street by an excavating contractor who allowed it to remain there five days before the accident.
    6. Negligence — rule as to contributory negligence of child. The true rule to determine whether a child of tender years was guilty of contributory negligence in being suffocated in a sand pile allowed to remain on the street by the city is that such a eMld is only required to exercise that degree of care for his own safety which a child of Ms age and intelligence, capacity, discretion and experience would naturally and ordinarily use in the same situation and under the same circumstances.
    7. Highways and Streets — instruction on city’s duty to leeep streets safe, in action for child’s injuries. In an action against a city and the contractor whom it had allowed to place an 8-foot high pile of sand in a public street, by the father of an 11-year-old boy who had been suffocated therein, an instruction on the duty of the city to keep the public streets in a reasonably safe condition is not objectionable.
    Thomson, J., dissents.
    Appeal by defendants from the Circuit Court of Cook county; the Hon. Walter Brewer, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed June 13, 1927.
    Cassels, Potter & Bentley, for Harry Bairstow, appellant; Ralph F. Potter and Kenneth B. Hawkins, of counsel.
    John J. Kelly, Samuel A. Ettelson, Corporation Counsel, and William D. Saltiel, City Attorney, for City of Chicago, appellant; Daniel V. Gallery, Assistant Corporation Counsel, of counsel.
    Charles C. Spencer and Arthur A. House, for appellee.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

This is an action for damages brought -by the plaintiff, Harry S. Holmberg, as the administrator of the estate of his son, Roy H. Holmberg. The action is based on the claim that the death of his son Roy was caused by the defendants’ negligence in creating and permitting a large pile of sand to be built up and remain in a public street. There was a trial before the court, with a jury, and a verdict and judgment for the plaintiff in the sum of $6,000. This appeal is from that judgment.

In the fall of 1922, one Anderson undertook the erection of a 15-apartment building on the southeast corner of Pinegrove and Oakdale Avenues, in Chicago. Bair stow, the defendant, had the contract to do the necessary excavating. He removed the top soil and carted it away. In doing that work, he used a steam shovel. On the Saturday morning before Thanksgiving Day, in 1922, he began the work of further excavation, using a teamster with a team of horses and a two-handle scoop. The scoop held from 5 to 7 cubic feet of sand. After getting the scoop full of sand, the teamster would drive the team out into the parkway, on the Pinegrove Avenue side, and near the south end of the building site, then turn north and dump the scoop, and then turn back to the excavation, and repeat the operation. The teamster continued to work until late Monday afternoon. The sand which he had removed and placed in the street made a pile extending north and south along the east side of Pinegrove Avenue, probably more than 50 feet in length. Its height was probably something over 8 feet (several witnesses placed the height from 6 to 7 feet, one from 9 to 10 feet, and one at “a good ten”). The top of the pile was somewhat crushed down, owing to the team of horses and the scoop passing over it from end to end. The sides of the pile sloped away to the east and to the west at the angle in which the sand normally, as a matter of gravity, came to rest, and on the east side, the bottom of the pile ran along the west side of the sidewalk. On the west side, the bottom of the pile extended west probably beyond the middle of the street, the street being about 32 feet from curb to curb.

Boy Holmberg, a boy 11 years of age, lived on Oak-dale Avenue, half a block west of Pinegrove Avenue. About 7.30 Wednesday evening, November 29, 1922, the day before Thanksgiving, being at home with his brothers and sisters, his parents having gone to see a friend, he put on his hat and went out, saying that he was going for some sand. About 9 o’clock, when his parents returned, he was still absent. They were alarmed, and began a search for him, which continued through the night. About six o ’clock the next morning, the boy’s father found his body on and partly in the sand pile. A milkman, who went to the father’s assistance, testified that when he first saw the father, the latter “was standing on top of the sand pile. * * * he had pulled the boy out of a little hole,— he was lying in it”; that the hole was “very near the top” of the sand pile, — “nearly the center from north to south,” and “about the center from east to west.” He further testified that the boy’s head was toward the east, and his body was on the west side of the sand pile, west of the street side of the sand pile.

In describing his discovery of his son’s body, the father testified, “There was a straight slope out possibly about two feet and a straight slope from the top, * * * I saw the shoes with his toes turned down. I saw his stockings, his trousers and part of his waist sticking out, and the rest of his body was in a sort of a hole that sloped up. The sand pile, where he was lying, was on the level, and this spot had a slight slope on this side. * * * it covered him to the bottom of his waist. * * * It was partially sticking out.”

No evidence was submitted as to just how the boy’s head and shoulders and the upper part of his trunk came to be covered with sand. However, it would seem to be a justifiable inference from the testimony quoted above that he dug a hole or . tunnel in the sand pile west of its north and south center line and very near the top, making, as his father described it, “a sort of a hole that curved up, — sloped up,” and that, as he was digging this hole or tunnel, and had the upper part of his body, including his arms, in the hole he had dug, the sand above and around caved in and suffocated him. The coroner’s physician gave it as his opinion that death was due to suffocation.

The declaration contained five counts. The plaintiff, to sustain the judgment, relies on the fourth count. That count charges that the defendants permitted this sand pile to remain in the street for a long space of time in such shape and formation “that divers parts thereof were likely to slip, cave in and fall”; that it was attractive to children and that many of them, with defendants’ knowledge and consent, played on it while it remained in this dangerous condition; that defendants, carelessly and negligently, failed to “guard or protect children in any manner from coming in contact with the pile of sand while in such dangerous shape and formation,” by means whereof the boy while using ordinary care for his own safety, and without fault or negligence on the part of his parents, was suffocated and lost his life, when “a large quantity of sand caved in, slipped, slid and fell upon” him.

There is no contention that the boy’s parents were guilty of negligence. The testimony is that he was of a careful disposition and that his mother had cautioned him about keeping away from the excavation being made at the place in question. In our opinion, the contention of defendants that the boy was guilty of contributory negligence as a matter of law is not tenable. At most, from the standpoint of the defendants, it was a question for the jury to pass upon, from all the evidence. As our Supreme Court has repeatedly said, “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 & W. I. R. Co., 318 Ill. 142.

The chief question in the case is whether the defendants were guilty of negligence. It may be assumed, as a matter of common knowledge, that a pile of sand, especially when located on a public street, would prove attractive to the children of the neighborhood. That it did so prove, in fact, is shown by the testimony of the witness Anderson, the owner of the property in question, who testified that several times he had seen children about the sand pile digging caves, and had chased them away. The question then arises, Did the sand pile, in the form in which it was permitted to remain in and along Pine Grove Avenue for some days, present a dangerous situation? And further, Should the defendants have been forewarned, when reasonably considering the matter, that if the sand pile were permitted to remain as it was,- injury was likely to occur to some child who might be there to play?

If the facts are such that reasonable minds would draw therefrom no other inference than that what was done was ordinary and permissible as a matter of conduct, the question presented is said to be one of law, and a verdict should be directed for the defendant, but if, in view of all the facts, reasonable men might differ as to whether there was negligence, an issue of fact is presented for the determination of the jury.

If the sand pile in the street had been 30 or 40 feet in height, few, if any, would be expected to conclude that it was not dangerous to children; on the other hand, if it had been only 1 or 2 feet high, none would be expected to hold that it was. Here, then, the question arises, Would the mind of the average man conclude, where the evidence shows the pile of sand was a little over 8 feet high, that it was a source of danger? Is it not a question of fact for the jury? Is it reasonable to say as to the physical situation — bearing in mind the known instincts of children, their love of digging and burrowing in sand, the deeper, the greater the pleasure — that the danger was so slight, seemed so nonexistent, or so highly improbable, the law would not justify submitting the evidence to the jury to determine the question of fact whether or not it was dangerous? In the necessary absence of some fairly definite and persuasive standard of measure, of course it is difficult to determine just when there is enough evidence to go to the jury, and when there is not. The' difference between a scintilla which, at the maximum, might be defined as evidence which merely gives rise to a faint suspicion — Libby, McNeill & Libby v. Cook, 222 Ill. 206 — and which is not enough, and on the other hand, that evidence which suggests quite seriously not only a possibility, but something not obviously unreasonably probable, and which is enough, is in reality a matter of weight and persuasion, and is, to a certain extent, dependent upon a determination of matters of fact by the trial judge, and, as our system of jurisprudence applies with special emphasis the principle that facts generally are to be found by the jury, and not by the judge, where a case is close, it would seem to be more reasonable to err, if at all, in favor of the submission of the evidence to the jury, than to be satisfied with the judgment of the trial judge alone.

In nearly every case where the question has arisen, the locus in quo was privately owned property, and the child, in the nature of a trespasser, a condition that would not be, in all probability, as alluring, and therefore not fraught with as much danger, as where the locus in quo was a public street, created for, and to be used freely by all, its very existence inviting and implying user.

The question arises whether Bair stow, or the City or both, did or failed to do something in a reasonably careful way, and as a result of the omission or commission, the boy, without negligence on his part, was killed. In the instant case, at first blush, knowing the instincts and the natural urge of children to play and make certain childish adventures, and particularly their natural liking, one might almost say passion, for a sand pile as a source of pleasure, one is inclined to conclude that just such a calamity as happened might have been expected, or anticipated, or thought of as not unreasonably probable. Certainly it must be considered as proper to charge Bair stow and the City with the knowledge that children would go there and would play about, on, and dig into the sand pile. Being chargeable with that knowledge, would they also be expected to realize that if children did go there and play and dig, that some one might, by so playing and digging, get in deep enough to be injured? What knowledge they had and what, considered as average reasonable persons, they were bound to expect, were matters of fact. Were they such that all reasonable minds would, as to the same circumstances, conclude that there was no fault or lack of care in maintaining the sand pile as it was? We do not think so. We might almost take judicial notice that such a sand pile in a public street is inviting to children. As to its danger, it may well be said that no average, thinking citizen would confidently expect it to do harm, but, on the other hand, he might well reason that it could very easily become, as the result of digging, even in play, a serious danger, and such being the situation, it would seem that, under the law, it was not only proper, but necessary to submit the matter, as a question of fact, to the jury. It was so submitted, and the jury found that the defendants were guilty of negligence. Are we now entitled to override that verdict? We do not think so.

In Stedwell v. City of Chicago, 297 Ill. 486, where a child climbed 13 feet up the latticework fastened to the side of a post in a street, and when he reached the top, came in contact with an arc light wire and was severely injured, the court said: “Where an attractive thing is so located that in yielding to its allurement a child is brought in direct contact with a danger placed there by someone else, the person responsible for creating the dangerous condition will be liable. (Seymour v. Union Stock Yards Co., 224 Ill. 579; Mc Dermott v. Burke, 256 id. 401; Commonwealth Electric Co. v. Melville, 210 id. 70; Electric Light Co. v. Healy, 65 Kan. 798.) Whether the pillar was so attractive to children in their sports as to suggest the probability of the accident was a question for the jury. (City of Pekin v. McMahon, 154 Ill. 141; Stollery v. Cicero Street Railway Co., 243 id. 290.) Plaintiff in error concedes there was testimony that children played ‘ around these pillars. ’ Under that state of the record the judgment of the Appellate Court is conclusive upon that question. The pillar and the cross-pieces on it, which gave it a ladder-like appearance, were not constructed by and did not belong to plaintiff in error. In using it in his play defendant in error was not a trespasser as to plaintiff in error. So far as it was concerned, defendant in error was rightfully on the pillar. Commonwealth Electric Co. v. Melville, supra; Nelson v. Bramford Lighting and Water Co., 75 Conn. 548; Union Pacific Railway Co. v. McDonald, 152 U. S. 262.”

In Deming v. City of Chicago, 321 Ill. 341, which was an action against the City of Chicago for the wrongful death of a child nine years of age, who was electrocuted while climbing a tree in a public street, the court said:

‘ ‘ This injury occurred in a tree in a public street and the deceased was, therefore, not a trespasser at the time he was killed. (Stedwell v. City of Chicago, 297 Ill. 486.) Plaintiff in error was bound, in placing in the street wires which carried a heavy load of electricity, to guard against accidents by the exercise of that degree of care commensurate with the danger incident to the use of such a dangerous agency. (Hausler v. Commonwealth Electric Co., 240 Ill. 201.) Whethr er the tree located in the public street was so attractive to children in their sports as to suggest the probability of such an accident as occurred, and whether the city was negligent in maintaining the wires as it did, were questions for the jury. (Stedwell v. City of Chicago, supra.) There was sufficient evidence of negligence to justify the court in submitting the case to the jury, and the motion to direct a verdict was properly overruled.”

Many physical conditions on a highway might exist which would be attractive and dangerous to children, and a ground for liability in case of injury, which would be looked upon as entirely innocuous if on private property. If, for example, the City, or anyone, created in a public highway a pond or well of water, deep enough to drown a child who could not swim, there would be no reasonable question or claim that it was not dangerous and a menace to life. The fact, therefore, that this sand pile in which the boy was suffocated was in a public highway becomes important in determining whether or not the evidence justified submitting the case to the jury, and distinguishes the instant case from all the cases cited where the locus in quo was on private property.

Some contention is made for the defendants that error was committed in admitting in evidence part of a city ordinance. The part admitted is as follows: “It shall be unlawful to occupy a street under authority of a permit, for the storage of articles not intended for' immediate use in connection with the operations for which the permit was issued.” And it is contended that error was committed in giving an instruction which recited that part of the ordinance. In our judgment, considering the pleadings and the evidence, the ordinance was not only properly pleaded, but was apt evidence, and the instruction thereon entirely proper.

It is contended further for the defendants that the trial judge erred in giving a certain instruction offered on behalf of the plaintiff, and refusing one on behalf of the defendants, which pertained to the subject of contributory negligence. There was no error in giving the one for the plaintiff. It contains a very exact statement of the rule as to what constitutes contributory negligence on the part of a child; whereas, the one offered on behalf of Bairstow and refused, defines contributory negligence, as applied to this case, as “a failure on the part of the person injured to exercise ordinary care and caution for his own safety, which proximately contributes in any degree to bring about the damages for which suit is brought,” which definition in no way suggests what is the true rule, that is, that the deceased was only required to exercise that degree of care which a child of his age and intelligence, capacity, discretion and experience would naturally and ordinarily use in the same situation and under the same circumstances. Deming v. City of Chicago, supra.

It is further contended that the court erred in giving for the plaintiff the following instruction:

“The defendant, the City of Chicago, was required by law to use reasonable care, to keep the public street at the place in question, in a reasonably safe condition, for persons using the streets, and who themselves were in the exercise of that degree of care for their own safety required by law.”

We see no objection to that instruction. It merely states the rule as to the duty of the City concerning its streets. Critically considered, it may have been superfluous, but it certainly could do no harm.

The contention is made on behalf of the City that instructions numbered 1, 3 and 4, which were given for the plaintiff, suggested to the jury that the court believed a verdict should be rendered in favor of the plaintiff. We do not find that they are objectionable on that score, nor do we consider that they are subject to the objection that they would permit a recovery without limiting the damages to those claimed in the declaration.

For the foregoing reasons, the judgment is affirmed.

Affirmed,

O’Connor, J., concurring.

Mr. Justice Thomson

dissenting: I do not concur in the decision of this case as announced in the foregoing opinion. No evidence was submitted as to -¡just how the head and shoulders of the deceased boy, and the upper part of his trunk, came to be covered with sand. It would seem to be a justifiable inference, from the testimony, that he had dug a hole or tunnel in the sand pile, west of the north and south center line and near its top, making, as his father described it, “a sort of a hole that curved up, — sloped up,” and that, as he was digging this hole or tunnel, and had the upper part of his body, including his arms, in the hole he had dug, the sand above caved in and he was suffocated.

It may be assumed, as a matter of common knowledge, that a nice clean pile of sand, as this was, especially when located along the side of a public street, would prove attractive to the boys of the neighborhood. That it did so prove, in fact, is shown by the testimony of witness Anderson, the owner of the property in question, who testified that he had seen children about the sand pile digging caves several times and had chased them away from there. The question remains, Did the sand pile, in the form in which it was permitted to remain in and along Pine G-rove Avenue for some days, present a dangerous situation? And further, Should the defendants, in the exercise of a reasonable degree of care, have foreseen that, if the sand pile was permitted so to remain, injury was likely to occur to children who might play about there ?

In McDermott v. Burke, 256 Ill. 401, a child was attracted into a building under construction, by a sand pile which had been hauled in by teams and deposited near the center of the building for use in making mortar. After playing on the sand pile for a time he went to some machinery near by and was there injured. In the course of its opinion the Supreme Court said that “the sand pile was tempting to children on account of their natural instincts, hut it was not dangerous in any sense and caused no injury,” and, further, that the defendant was under no obligation to keep the opening leading into the building barricaded ‘ ‘ on account of any attraction of the sand pile, for the reason that the sand pile was not dangerous to children.”

In Ramsay v. Tuthill Bldg. Material Co., 295 Ill. 395, the defendant maintained an elevated switch track on its premises beneath which there were several bins for the purpose of holding sand. The bottoms of the bins were about 8 feet from the ground, and in the bottoms were chutes by which the contents of the bins could be made to run in various directions. These chutes were opened or closed by doors controlled by levers. Sand was dumped into these bins from the tracks above them and then emptied into wagons below the bins, by means of the chutes. A ladder led from the ground up to the elevated tracks. The premises were accessible from the street and children frequented them to play in the sand they found about the premises. On the day of the accident involved in that case, a boy climbed the ladder, and walked along the elevated structure to a bin nearly full of sand. The chute was open. He jumped in to see if he would slide through the opening to the ground. He did so, but was followed by such a quantity of the sand as to cover him and he was smothered to death. In the course of its opinion in that case, the court said that “it was not negligence to maintain the sand pile on the ground or the sand bins or the ladder,” but whether it was negligence to have openings in the bins through which the sand could pass, which were not securely fastened, was a question of fact for the jury to consider and pass upon.

In my opinion there is a clear distinction between the situation presented in the case at bar and those involved in cases relied upon by the plaintiff in support of the judgment appealed from. The case of Rost v. The Parker Washington Co., 176 Ill. App. 245, involved the maintenance of a sand pile by the defendant, “as large as a small house,” and 20 or 30 feet wide, one end of which was close to a river bank which was composed of piling extending 4 feet above the water. The court said that even if it were conceded that there was nothing dangerous per se in the sand pile and that it was not an attractive nuisance, yet “when the sand pile is placed so near to the bank of a river that a fall from the sand pile would naturally cause a child to fall into the water, it must be regarded as dangerous, and that the danger therefrom is such that it should reasonably be anticipated and guarded against by the owner of premises located adjacent to a public street.”

The case of City of South Bend v. Turner, 156 Ind. 418, presented a situation where the defendant had permitted “large piles of sand” to be piled upon the street where a sewer was being constructed, near a manhole which led down to the sewer nearly 30 feet below. This manhole was negligently allowed to remain uncovered and open. Children were attracted to the spot for the purpose of playing in the sand piles. The plaintiff, who was a young child, while playing on one of these piles, fell down through the open manhole. Here again, we have a combination of objects which the party responsible, in the exercise of a proper degree of care, should have known would probably result in injury to those likely to be attracted there. That is not the situation presented in the case at bar.

In Stedwell v. City of Chicago, 297 Ill. 486, and Deming v. City of Chicago, 321 Ill. 341, the defendants were held liable for negligently causing the deaths of boys who came in contact with electric wires, charged with a high voltage of electricity. In the latter case the court held that the defendant, in placing such wires, was bound to guard against accidents “by the exercise of that degree of care commensurate with the danger incident to the use of such a dangerous agency. * * * Whether the tree located in the public street was so attractive to children in their sports as to suggest the probability of such an accident as occurred, and whether the city was negligent in maintaining the wires as it did, were questions for the jury.” Counsel for plaintiff urges that if we here substitute the words “pile of sand” for the words “tree” and “wires” in the language of the Supreme Court just quoted, “we have a statement very applicable to the case at bar.” We may not properly indulge in any such liberty with the language of the Supreme Court to be found in the Deming case, unless the agency involved in the case at bar, which caused the death of plaintiff’s intestate, possessed such a degree of apparent danger as to make it reasonably comparable to that involved in the Deming case. Such, in my opinion, is not true. There is a very great difference between an inert pile of sand and electric wires carrying 3150 volts of electricity. Because the question of whether a tree in a parkway was so attractive to children as to suggest the probability that a boy might climb into its branches, and if he did, might come into contact with wires carrying certain death to anyone who touched them and whether a city was negligent in permitting such a situation to exist, presented a question for a jury, it may not reasonably be argued that it follows that whether a sand pile lying in a parkway and partially in the roadway of a public street was so attractive to children as to suggest the probability that a boy might dig his way into it and be smothered, and whether these defendants were negligent in permitting such a sand pile to remain there, likewise presented a question for a jury. In my opinion, two such situations present probabilities which are in no way similar. In one there may be said to be all the elements of probability while in the other they are very remote.

In the recent case of Mindeman v. Sanitary Dist. of Chicago, 317 Ill. 529, our Supreme Court held that “a canal, a pond, or other open body of water on private property, is not of itself an attractive nuisance, as that term is used in describing an instrumentality which will render the owner liable for injuries to a child attracted to and injured by it,” citing many cases, and among them, Barnhart v. Chicago, M. & St. P. Ry. Co., 89 Wash. 304. There the question presented was whether the owner of property on which a pond was formed, to which the boys of the neighborhood resorted for play, was guilty of negligence in failing to fence his property against such intrusion. The court held that there was no liability, and in the course of its opinion said: ‘ ‘ That a pond of water is attractive to'boys for the purposes of play, swimming, and fishing no one will deny. But its being an attractive agency is not sufficient to subject the owner to liability. It must be an agency such as is likely, or will probably, result in injury to those attracted to it. That many boys every year lose their lives by drowning is a matter of common knowledge. But the number of deaths in comparison to the total number of boys that visit ponds, lakes, or streams for purposes of play, swimming and fishing is comparatively small. It would be extending the doctrine too far to hold that a pond of water is an attractive nuisance, and therefore comes within the turntable cases. * * * The turntable doctrine makes the owner liable because the dangerous agency was attractive to children of tender years, and in playing about or with such agency accident or injury would probably result.”

It is true that the doctrine of attractive nuisance was formulated to answer the defense that the child,in going upon private premises, was a trespasser. But if a pile of sand may be so maintained as to amount to an attracive nuisance, on private property, it would be no less so, if maintained in the same way, though temporarily, along a public highway or street. The sand is no less attractive and dangerous, if it be such at all, if piled in the street, and it remains the private property of the one who put it there.

But I am of the opinion that, though attractive, this sand pile could not be said to be a nuisance in the sense that it was a menace to children playing upon it. If it may be said that a pond or a canal is not a menace, so as to amount to a nuisance, although children are drowned in them now and then, it could certainly not be successfully contended that a pile of sand was a menace to playing children, because such an unfortunate accident as happened in this case was at least a possibility.

It may be that this pile of sand presented a menace to passing traffic, and that it was therefore negligent for defendants to permit it to remain as it was. But that fact may not affect this case, as any such negligence had no part in the events which are involved. It is, of course, not necessary that a person guilty of a negligent act or omission, might, in the exercise of reasonable care, have foreseen the precise form of injury which has occurred, but when it does occur, it must appear, if the defendant is to be held liable, “that it was a natural and probable consequence of his negligence.” Seith v. Commonwealth Electric Co., 241 Ill. 252.

But in my opinion that may not reasonably be held to be the case here. A pond furnishes a condition which will cause a child to drown if he gets into it over his depth and cannot swim, but that does not make it a menace to children, for thousands of them find pleasure playing about them and do not drown and the law does not charge one who maintains a pond with negligence if perchance a child does get into it and lose his life. So a pile of sand, in materially less measure, furnishes a condition which has at least possibilities of danger, but not such probabilities as to mean that one who permits one to exist and remain where children are, does so at his peril. Moreover, the accident involved in this case happened on the last day of November. The evidence shows that the night was cold. This boy did not go to this sand pile until after dark— 7.30 o’clock in the evening. I believe the law may not reasonably be carried to the extent of charging these defendants with negligence for failing to take such precautions as were calculated to keep children away from the sand pile, not only through the day, but into the night, especially at that season of the year.


author: Mr. Justice O’Connor

text:
    The Chicago, Rock Island & Pacific Railway Company, Appellant, v. North American Cold Storage Company, Appellee.
    Gen. No. 31,284.
    1. Sales — hill of lading as not passing title. The legal title to goods shipped over a common carrier is not evidenced by the bill of lading but by the contract of sale between buyer and seller.
    2. Carrier — what bill of lading represents on part of carrier. A non-negotiable bill of lading is a receipt given by the carrier for goods shipped and in addition an agreement that the carrier will transport the goods according to the' terms expressed in the bill of lading.
    3. Sales — seller’s transfer of bill of lading as affecting buyer’s title. Title to goods shipped passes to the buyer by the contract of sale and the carrier cannot obtain title thereto by paying to the seller, who was also consignee, the amount of the draft which the buyer had not paid and receiving therefor the bill of lading and assignment of the seller’s interest in the shipment.

      4. Carriers — delivery of goods to buyer without his presenting the bill of lading. A common carrier has no right to deliver to one who has bought a shipment of goods, said shipment without the buyer’s presenting the bill of lading according to instructions of the seller, who was also consignee, to the carrier, or without authority to do so from said consignee.
    5. Appeal and error — value of deposition evidence on appeal. The Appellate Court is in as good a position as trial judge or jury to determine the value of evidence which is presented on the trial in the form of a deposition.
    6. Replevin — right of carrier to replevin shipment delivered by mistake. A carrier that has delivered a shipment by mistake to the buyer thereof before the latter, has produced the bill of lading, contrary to the directions of the seller, who was also consignee, may maintain an action of replevin to recover the shipment.
    7. Replevin — demand. A common carrier, before starting suit for replevin of a shipment delivered by mistake without production of the bill of lading, need not demand the goods upon it appearing they are claimed by the one receiving them to be Ms and that he lays claim to possession.
    8. Replevin — demand. A common carrier, before starting suit for replevin of a shipment delivered by mistake without production of the bill of lading, need not demand the goods upon it appearing they were wrongfully obtained by the one that received them.
    9. Carriers — who is delivering carrier. A common carrier, treated by all the parties to its suit to replevin a shipment mistakenly delivered without a bill of lading being produced, as the delivering carrier, and which had actually delivered the shipment within a mile of the destination, is the delivering carrier rather than the railway which switched them the final mile distance to their destination.
    10. Replevin — when variance between proof and affidavit must appear on trial. To be heard on appeal, a variance between proof and affidavit in a replevin suit must be specifically pointed out in the trial in municipal court.
    11. Replevin — case made by evidence in municipal court. Under Cahill’s St. ch. 37, j| 428, providing no statement of claim is necessary to be made in writing in a municipal court fourth-class ease, in replevin, it is sufficient if the ease is made by the evidence.
    12. Replevin — necessity of motion for instructed verdict to secure entry of judgment on appeal. Unless the plaintiff in a replevin suit in municipal court moves for an instructed verdict in his favor at the close of the evidence, he can only have the judgment against him reversed but cannot have judgment in Ms favor entered in the Appellate Court.

      Appeal by plaintiff from the Municipal Court of Chicago; the Hon. John H. Lyle, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Reversed and remanded.
    Opinion filed June 13, 1927.
    Chas. T. Schwarz and Harry E. Boe, for appellant.
    Joseph M. Connery and J. J. Cooke, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action of replevin against the defendant to recover possession of 646 boxes of apples, and 606 of the boxes were taken on the writ and delivered to the plaintiff. Afterwards there was a trial and a verdict in favor of the defendant finding the right to the possession of the property was not in the plaintiff and defendant’s damages were fixed at the sum of $130.56, judgment was entered on the verdict and a writ of retorno habendo ordered and plaintiff appeals.

The record discloses that in December, 1925, H. R. Boomer and Otto Steinberg were doing business in Idaho and vicinity as the Boomer Produce Company, dealing in apples and other produce; that on December 19, 1925, the Boomer Produce Company purchased a carload of apples, being the apples in question, from the Northwestern Orchard Company at Apple Valley, Idaho. On that date the apples were in a railroad car at Apple Valley, Idaho, for transportation and the Oregon Short Line Railroad Company issued to the Boomer Produce Company its bill of lading. The bill shows that the apples were to be transported to Denver, Colorado, and the Boomer Produce Company was named as consignee. It further appears from the evidence that while the car was en route to Denver the Boomer Produce Company sold the car of apples to the Larson Produce Company of Chicago. On Decernher 19th when the apples were sold to the Larson Produce Company, the Boomer Produce Company ordered the transportation company to divert the car to the Boomer Produce Company at Chicago and to advise the Larson Produce Company. On the 26th of December the Boomer Produce Company wired the transportation Company showing the diversion order above mentioned, and further advised that the car be shipped in care of the North American Cold Storage Company, the defendant. In accordance with directions given, the car of apples was routed over plaintiff’s railroad from Omaha to Chicago. When the apples arrived in Chicago — in the late days of December, 1925 — the Pennsylvania Railroad Company which operated a switch track to the plant of the North American Cold Storage Company^ delivered the car to the defendant’s plant. Shortly prior to that time the Continental and Commercial National Bank of Chicago advised the defendant that it had received for collection from the Boomer Produce Company of Idaho a draft for $718.20, drawn on the Larson Produce Company for the car of apples, and that the bill of lading accompanied the draft. The defendant advised the bank to take up the matter of payment of the draft direct with the Larson Produce Company, and this was apparently done, but the draft was not paid and about the 28th of December, the apples were unloaded and placed in the defendant’s cold storage house by the defendant for the Larson Produce Company. The apples were delivered without the production of the bill of lading and without any order from the consignee.

The evidence further shows that shortly thereafter plaintiff demanded the return of the apples, but the demand was refused; that the Boomer Produce Company made a claim against the railroad company for delivering the apples to the defendant without any order from the Boomer Produce Company and without the bill of lading; that the railroad company thereupon paid the Boomer Produce Company the amount of the draft, $718.20, and took an assignment from the Boomer Produce Company of all its interest in the apples and was also given the bill of lading; that about this time the railroad company brought the present action of replevin and at the same time brought another action against the Larson Produce Company to recover 150 boxes of the apples which had theretofore been delivered to it by the storage company. The cases were consolidated for hearing and there was a verdict in the Larson Produce Company’s case in favor of the plaintiff and a verdict in the instant case, as above stated, against the plaintiff and we are further advised that the court granted a new trial in the Larson case, but that matter is not before us.

There is some argument between the parties as to whether the Boomer Produce Company or the Larson Produce Company was the consignee of the car of apples. We think there is no room for argument on this point. The consignee named in the bill of lading is the Boomer Produce Company and the fact that the bill of lading specified that the railroad company was to advise the Larson Produce Company did not in any manner change the consignee. But plaintiff further contends that the Boomer Produce Company was not only the consignee but that it was also the owner of the apples when they arrived in Chicago and that afterwards when plaintiff paid the Boomer Produce Company the $718.20 and took an assignment to it from the Boomer Produce Company, the legal title to the apples was in the plaintiff. This argument, seems to be based upon the contention that the ownership of the apples was evidenced by the bill of lading. We think this argument is unsound. The bill of lading did not represent the contract between the Boomer Produce Company and the Larson Produce Company. That contract, the evidence discloses, was an oral one entered into between the Boomer Produce Company and the Larson Company over the long distance telephone. The evidence shows that Steinberg from Idaho telephoned a representative of the Larson Produce Company at Chicago while the car of apples was en route between Idaho and Denver and that an agreement was entered into whereby the Larson Produce Company purchased the car of apples from the Boomer Produce Company. The bill of lading was a receipt given by the carrier for the apples and in addition it was an agreement that the carrier would transport the apples according to the terms expressed in the bill of lading. Rudin v. King-Richardson Co., 311 Ill. 513. The court there said (p. 521): “It (the bill of lading) does not represent the contract between the vendor and the vendee. It is, however, sometimes material to consider the bill in determining the contractual relation of the parties.” Holding as we do that the title to the apples passed from the Boomer Produce Company to the Larson Produce Company while the apples were moving from Idaho to Denver, plaintiff did not obtain the legal title to them when it paid the Boomer Produce Company some weeks later and secured the assignment of the Boomer Produce Company’s interest in the apples. But the fact that the Larson Produce Company was the owner of the apples when the car arrived in Chicago did not authorize the railroad company to deliver them to the Larson Produce Company or to the defendant, its representative, without an order from the consignee authorizing the railroad to do this or without the production by the Larson Produce Company of the bill of lading. The evidence shows that the bill of lading was not produced, but, on the contrary, was surrendered to the railroad company by the Boomer Produce Company when the latter was paid the $718.20'. And the evidence further shows that the consignee, the Boomer Produce Company, gave no order to the railroad company to deliver apples to the Larson Produce Company, or to its representative, the defendant, and it was its intention that this should not be done until and unless the draft was paid, so that the delivery of the apples was unauthorized. The bill of lading in question plainly states on its face that it is “not negotiable” and is, therefore, what is known as a straight bill of lading. (Section 6 of the Bill of Lading Act of August 29, 1916; 39 Stat. L. 538.) And by section 8 of that act, it is provided that a carrier, in the absence of some lawful excuse, is bound to deliver the goods upon demand to the consignee named in the bill, if, upon such demand, the bill of lading is produced. By section 9, it is provided that a carrier is justified in delivering the goods to the “consignee named in a straight bill of lading.” Section 10, a carrier who delivers goods to one who is not lawfully entitled to the possession of them is made liable to the party having the right to the possession of the goods. Substantially the same provisions are found in our Uniform Bills of Lading Act, chapter 27, sections 4, 8, 11, 12 and 13, Cahill’s St. ch. 27, ¶¶ 5, 9, 12, 13 and 14. And by section 40 of our Uniform Bills of Lading Act, Cahill’s St. ch. 27, ¶ 41, it is provided that “Where goods are shipped by the consignor in accordance with a contract or order for their purchase, the form in which the bill is taken by the consignor shall indicate the transfer or retention of the property or right to the possession of the goods as follows: * * *

“(b) Where by the bill the goods are deliverable to the seller or to his agent, or to the order of the seller or of his agent, the seller thereby reserved the property in the goods. But if, except for the form of the bill, the property would have passed to the buyer on shipment of the goods, the seller’s property in the goods shall be deemed to be only for the purpose of securing performance by the buyer of his obligations under the contract.” And section 20 of the Uniform Sales Law, Cahill’s St. ch. 121a, ¶ 23 is substantially the same. In the Rudin case, supra, the court held under section 40, above quoted, that where the title to the goods had passed to the purchaser and the bill of lading showed that the seller was the consignee, but that this was only for the purpose of seeing that the purchaser performed his obligations under the contract, the property could not be properly delivered by the carrier unless the purchaser met his obligation by paying for the goods before delivery. But counsel for the defendant say that it has been held by this court that goods may be delivered by the carrier to the consignee without producing the bill of lading and in support of this the cases of Scovern v. Chicago, M. & St. P. Ry. Co., 189 Ill. App. 126; Ensign v. Illinois Cent. R. Co., 180 Ill. App. 382; Hoops v. Wells Fargo & Co., 176 Ill. App. 620, and Schlesinger v. West Shore R. Co., 88 Ill. App. 273, are cited. An examination of these cases shows that it was only held that if the carrier delivers the goods to the consignees without the bill of lading the delivery will be valid where the bill of lading is a straight or non-negotiable bill of lading. But these cases are inapt here, where the apples in question were not delivered to the • consignee, which was the Boomer Produce Company but to the Larson Produce Company. The delivery in question by the carrier to the Larson Produce Company or its representative, the defendant, was unwarranted.

There is no merit in the contention made by the defendant that the Larson Produce Company purchased the apples from Steinberg and not from the Boomer Produce Company. It is true that Steinberg testified, by deposition, that he bought the apples from the Boomer Produce Company and sold them to the Larson Produce Company, but his testimony is at variance with the facts as disclosed by the evidence and, in our opinion, is worthy of little or no credence, because the evidence shows by documents in the record and by other evidence that Steinberg was engaging in dealing in apples with Boomer; that they were doing business as the Boomer Produce Company; that while the apples were en route to Denver they were sold to the Larson Produce Company and the Boomer Produce Company drew a draft on the Larson Produce Company for the price of the apples, $718.20, sending the draft together with the bill of lading to a Chicago bank for collection; that after the Larson Produce Company refused to pay the draft and after it had received the apples the Boomer Produce Company made a claim against the railroad company for the price of the apples and that the railroad company paid the $718.20 to the Boomer Produce Company and took an assignment from the Boomer Produce Company to itelf for the apples. In these circumstances, Steinberg ought not be permitted to stultify himself by saying that the apples were his and not the property of the Boomer Produce Company. We are in as good a position to determine this question as were the jury or the trial judge, because Steinberg’s testimony was in the form of a deposition and the documentary evidence is of such a character as to convince a reasonable" person that the apples were sold to the Larson Company by the Boomer Produce Company and not by Steinberg, and this is the testimony of Boomer.

The carrier, plaintiff, having delivered the apples through mistake to the defendant as the representative of the Larson Produce Company, it may maintain an action of replevin to recover them. 10 C. J. 269; American Merchants Union Exp. Co. v. Willsie, 79 Ill. 92; Milk Dealers Bottle Exch. v. Schaffer, 224 Ill. App. 411. In Corpus Juris it is said, “where through mistake, fraud or otherwise the carrier has been induced to deliver goods to a person not entitled thereto, and he refuses to return them, the carrier may maintain an action against him for the recovery of the goods or for their value.” In support of this the Willsie case, supra, is cited. In that case the goods were sent by express marked C.O.D. Upon arrival of the goods the party to whom they were sent was notified and through misrepresentation he obtained possession of the goods without paying for them and it was held that the express company could maintain an action of replevin for the goods. But the defendant contends that the evidence fails to show that plaintiff made a demand for the apples before suit was instituted and, therefore, the action will not lie. This contention is without merit. Plaintiff offered evidence tending to show that it had made a demand for the apples, but some of this evidence was erroneously excluded. Moreover, it appears from the evidence without dispute that the Larson Produce Company was maintaining that it owned the apples and was entitled to the possession of them by its agent, the defendant, and where this appears, it is obvious that a demand would be unavailing and in these circumstances no demand is necessary. National Bond & Investment Co. v. Zakos, 230 Ill. App. 608; Kee & Chapell Dairy Co. v. Pennsylvania Co., 291 Ill. 248; Rudin v. King-Richardson Co., supra. In discussing the question of the necessity of a demand before an action of replevin is instituted, we said m the Zakos case (p. 612), “no demand is necessary before bringing suit where the evidence discloses that such a demand would have been unavailing. The object of a demand is to afford the defendant an opportunity to restore the property to the one entitled to possession without being put to the expense and annoyance of litigation. But where it appears that the defendant either before the action was instituted or upon the trial contests the plaintiff’s rights upon the merits, or where it appears that a demand would have been of no avail, then none is required, for the law never requires the doing of a useless thing,” citing authorities. And in the Kee & Chapell Dairy Go. case, the court said (p. 255): “Even though this be considered not sufficient as a demand, it is sufficient' to show that a demand would have been unavailing and therefore unnecessary, as the effect of appellant’s statement was that it would not surrender the property without a writ being issued. While demand is usually necessary where the defendant comes into possession of the goods rightfully, yet where the circumstances show that demand would be unavailing such demand is not necessary. Cranz v. Kroger, 22 Ill. 74; Johnson v. Howe, 2 Gilm. 342.” In the Rudin case the court said (p. 526) “all the circumstances show that a demand would have been unavailing, and where that is the case a demand is not necessary. (Kee & Chapell Dairy Co. v. Pennsylvania Co., 291 Ill. 248.) ” Since the evidence discloses that a demand would have been unavailing, none was necessary. Moreover, none was necessary because the apples were not rightfully obtained by the Larson Produce Company through its agent, the defendant.

The defendant further contends that plaintiff was not the delivering carrier and, therefore, cannot maintain this action, and it is argued that the delivering carrier was the Pennsylvania Railroad Company which delivered the car on the switch track at the side of plaintiff’s cold storage building. The evidence shows that all of the parties treated the Rock Island Railroad, the plaintiff, as being the delivering carrier. It transported the car from Omaha to a point in Chicago, about a mile distant from defendant’s plant and the Pennsylvania Railroad Company, who operated the switehtrack running to defendant’s plant, delivered the car for plaintiff to the defendant. Under these circumstances plaintiff was the delivering carrier and the Pennsylvania Railroad Company was merely its agent. Missouri Pac. R. Co. v. Reynolds-Davis Grocery Co., 268 U. S. 366.

A further point is made that there is a variance between the proof and the affidavit for replevin. No such contention was made on the trial and it is elementary that a variance must be specifically pointed out on the trial. By section 40 of the Municipal Court Act, Cahill’s St. ch. 37, ¶ 428, no statement of claim is necessary in a replevin action. An affidavit is all that is required and this being a fourth-class case, in which no written pleadings are required, it is sufficient if a case is shown by the evidence. Edgerton v. Chicago, R. I. & P. R. Co., 240 Ill. 311.

We have considered other contentions made in the briefs, but are of the opinion that they are not tenable and further that it would serve no purpose to treat them in detail here. Since there was no motion made by the plaintiff at the close of the evidence for an instructed verdict in its favor, we are unable to enter judgment in this court in favor of the plaintiff.

For the reasons we have given the judgment of the municipal court of Chicago is reversed and the cause remanded.

Beversed and remanded.

Taylor, P.J., and Thomson, J., concur.


text:
    C. Abrams, Appellee, v. R. C. Traster and Helen Traster. R. C. Traster, Appellant.
    Gen. No. 31,487.
    1. Husband and wife — common-law obligation of husband for wife’s necessaries. At common law, a husband was liable for necessaries furnished his wife even though the marriage was invalid.
    2. Husband and wife — effect of marriage invalidity on husband’s liability for wife’s necessaries. Under Cahill’s St. eh. 68, U 15, providing husband and wife are liable for family necessaries, a man who has gone through a marriage ceremony, invalid because occurring before the woman had secured a divorce from her husband, but continues to live with her and to hold himself out as her husband, is liable as well as she for the value of clothes bought by her while the relation continued.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. T. H. Miller, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed June 13, 1927.
    Webster & Holmgren, for appellant; Daniel Webster and Elmer N. Holmgren, of counsel.
    No appearance for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against the defendants to recover $160 which he claimed as a balance due him for goods, wares and merchandise sold and delivered to the defendant Helen Traster. Both defendants were served and Helen Traster entered her appearance in writing but did not appear on the trial. The case was tried before the court without a jury and there was a finding and a judgment in plaintiff’s favor for the amount of his claim against both defendants and B. C. Traster prosecutes this appeal.

The record discloses that on the 31st of May, 1922, the defendants went through a marriage ceremony before a justice of the peace at Crown Point, Indiana; that on July 15, 1919, the defendant, Caroline H. Emminger, now Mrs. Traster, was lawfully 'joined in marriage to Frank A. Leitner and that they were divorced in Cook county, Illinois, June 4, 1922. The evidence further shows that on November 22, 1925, a decree was entered by the superior court of Cook county annulling the marriage that had been performed at Crown Point, Indiana, on the ground that at the time that marriage was entered into there was a legal marriage still in force and effect between Mr. and Mrs. Leitner. It further appears that after the marriage ceremony was performed at Crown Point, the defendants returned to Cook county and resided together as husband and wife and that during the time they lived together as husband and wife, plaintiff sold to Mrs. Traster certain wearing apparel and it is to recover the balance due for the wearing apparel that plaintiff sues. The evidence further shows that some of the purchases were made from plaintiff by Mrs. Traster when the defendant R. C. Traster was present, and that there was no intimation by the defendants at any time that would indicate that the marriage ceremony performed at Crown Point, Indiana, was not legal, and plaintiff had no notice of any kind or nature that there was any question about the validity of the defendants’ marriage, but on the contrary, it was assumed by all parties that such marriage was binding so far as the business transaction between the plaintiff and the defendants was concerned.

Plaintiff in his statement of claim alleged that the $160 was due him for goods, wares and merchandise sold and delivered to Mrs. Traster and further that there was an account stated between him and the defendants. There is a further paragraph in the statement of claim alleging that plaintiff’s claim was based upon section 15, chapter 68, Revised Statutes, Cahill’s St. ch. 68, 15, which is as follows: “The expenses of the family and of the education of the children shall be chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly or separately.” While plaintiff’s statement of claim was in the nature of three counts, yet an examination of the record discloses the fact that the case was tried upon the theory that plaintiff was entitled to judgment by virtue of section 15, above quoted, and we shall decide the case upon that theory.

The defendant, R C. Traster, contends that the judgment is wrong and should be reversed because the evidence fails to show that the merchandise alleged to have been sold and for which plaintiff sued was in fact delivered to Mrs. Traster and further that the evidence fails to show the fair and reasonable market price of the wearing apparel. We have examined the entire record in this case and are clearly of the opinion that each of these contentions is without merit. No such contention was interposed upon the trial, but on the contrary, the defense was that R C. Traster was not liable under section 15 above quoted, for the reason that before recovery could be had in that case a valid marriage must have been entered into between the defendants. Moreover, we think the evidence in the record is sufficient because it tends to show that goods were sold by the plaintiff to Mrs. Traster, — some of them in the presence of R 0. ‘Traster and payments made from time to time thereafter apparently by Mrs. Traster.

In support of the defendant’s contention that before a husband can be held liable under section 15, above quoted, it is a condition precedent that there be a legal marriage between the parties, the cases of Rand v. Bogle, 197 Ill. App. 476; Hess v. Slutsky, 224 Ill. App. 419; Schlesinger v. Keifer, 131 Ill. 104; Holnback v. Wilson, 159 Ill. 148, are cited.

In the Band case suit was brought by Rand, a dentist, against William L. Bogle and'Mrs. Cloe Barry to recover for professional services rendered by him to Mrs. Barry. Judgment was entered against .both defendants. Bogle sued out a writ of error from this court where the judgment was reversed. It appeared that Mrs. Barry was divorced October 8, 1912, and on November 4th following went through a marriage ceremony with Bogle and from that date the parties lived together in Chicago until September, 1913. In December, 1913, Mrs. Barry filed a bill praying that the marriage between her and Bogle be annulled and a decree was entered January 6, 1914, declaring the marriage void. The court there said (p. 477): “Under the statute it is a condition precedent to a recovery for family expenses that there be a legal relation of husband and wife. Schlesinger v. Keifer, 30 Ill. App. 253, affirmed in 131 Ill. 104; Houghteling v. Walker, 100 Fed. 253; Holnlack v. Wilson, 159 Ill. 148.” This quotation is all that was said on the subject. We presume that the statute mentioned in the paragraph quoted referred to section 15. An examination of the authorities cited in support of the proposition that there must be a legal marriage between husband and wife before a recovery can be had under section 15 discloses the fact that none of them is in point. In the Schlesinger case suit was brought against husband and wife and liability was predicated upon section 15. It there appeared that there was a valid marriage between the defendants, but that the parties were not living together as husband and wife at the time the dental services were performed for the wife but that the defendants were living separate and apart and the court held that before recovery could be had there must be a family in fact. Obviously that case is not in point. In the instant case there was no valid marriage between the parties, but they were living together as husband and wife. The question was not passed upon by the Supreme Court in the Schlesinger case (131 Ill. 104), but the judgment was affirmed on other grounds.

In the Houghteling case there was a valid marriage between the parties defendant and the question now before us was in no way involved or considered. And the Holnback case involved the question of a homestead. No question in regard to section 15 was in anyway involved or referred to.

In the Hess case cited by counsel for the defendant a husband and wife had been divorced. The mother was given custody of a minor child and $10 per week alimony was awarded to her. The wife afterwards re-married and the decree of divorce was so modified as to require her former husband to pay $5 per week for the support of the child. Medical services were rendered by plaintiff, a doctor, to the child and he brought suit against the former husband under section 15. It was held that there was no liability. The court there said (p. 421): “It has also been held that before a plaintiff may recover under the family expense statute, there must be a family in fact, and that the statute does not apply where the parents are divorced. Schlesinger v. Kiefer, 30 Ill. App. 253; Rand v. Bogle, 197 Ill. App. 476.” So that in that case the court construed the Band case as holding that before a recovery could be had under the family expense act, there must be a “family in fact” and not that a valid marriage was a condition precedent to a recovery under the statute.

Under the common law a husband was liable for necessaries furnished his wife, and this was so although the marriage was invalid. Frank v. Carter, 219 N. Y. 35, L. R. A. 1917 B 1288. In that case an action was brought to recover the purchase price of goods sold to defendant’s alleged wife. The court said: “The only remaining question for our consideration is whether the liability of the defendant was affected by the fact that his purported marriage with the woman was void. I think that it was n,ot. Inasmuch as he had gone through the form of a marriage with her and lived with her and held her out as his wife his status was no different for the purposes here involved than it would have been had the marriage been a legal one. (Johnstone v. Allen, 6 Abb. Pr. [N. S.] 306; Munro v. DeChemant, 4 Camb. 215; Blades v. Free, 9 B. & C. 167; Ryan v. Sams, 12 Q. B. [A. & E. N. S.] 460.)”

In the case of Hoyle v. Warfield, 28 111. App. 628, it was held that where two persons were living together as husband and wife and were recognized and treated as such, the reputed husband, by reason of the provision of section 15, supra, was liable for family supplies sold, although the credit was extended to the reputed wife. In that case groceries were sold to the reputed wife and suit was brought against the husband to recover for them. The court said (p. 628-629):

“The parties were living together as husband and wife and were recognized and treated as such in the community where they lived; and as to all who furnished them the necessaries of life which come under the head of family expenses, under the belief that such relation existed, when such belief is justified by the conduct of the parties, as it clearly was in this case, we think the provisions of Sec. 15 of Chap. 68, R. S., apply. * * *
“Under the provisions of this section we think it makes no difference to which of the parties the credit is originally given; they are both liable. ’ ’ To the same effect is Warrington v. Anable, 84 Ill. App. 593. See also 30 C. J. 594.

In the instant case the defendants went through a marriage ceremony a few days before she was granted a divorce and after the marriage ceremony was performed, they lived together as husband and wife in Chicago, during which time the goods in question were sold. In these circumstances, we think the defendant R. C. Traster is liable under the statute as was held in the Hoyle case.

Judgment of the municipal court of Chicago is affirmed.

Affirmed,

Thomson, P. J., and Taylor, J., concur.