text:
    Walter H. Schwartz, Defendant in Error, v. E. Gustave Lindquist, Plaintiff in Error.
    Gen. No. 32,950.

      Heard in the third division of this court for the first district at the October term, 1928.
    Opinion filed January 30, 1929.

      Ode L. Rankin and Joseph H. Braun, for plaintiff in error.
    Joseph H. Hinshaw and Walter P. Murphy, for defendant in error.
   Mr. Justice Ryner

delivered the opinion of the court.

The plaintiff brought his action in tort in the superior court of Cook county to recover damages for personal injuries sustained by him as the result of a collision between his automobile and the automobile of the defendant. He obtained a verdict and a judgment upon the verdict. The damages were assessed at $7,000. A motion for a new trial was denied. The case is here on appeal of the defendant.

The accident happened on April 5, 1927, at about 8 o’clock in the morning in the Village of Oak Park. Each party was on his way to his place of employment and each was driving a Ford sedan. The plaintiff was going west on Washington Boulevard and the defendant was traveling south on Ridgeland Avenue, an intersecting highway. Both streets were paved with asphalt and, at the time of the accident, the surfaces were dry. It was a bright clear morning and apparently there was nothing to obstruct the view of either driver. The plaintiff saw and watched the defendant’s machine as it approached the intersection but the defendant testified that he did not see the plaintiff’s machine until it was directly in front of him and at a distance of something like a couple of feet away. The defendant further said that as he approached Washington Boulevard he looked both towards the east and the west but did not see anyone coming.

At the intersection in question Washington Boulevard is 38 feet wide and Ridgeland Avenue is 34 feet in width. The defendant testified that as he approached Washington Boulevard he was driving his car at a distance of about 6 feet west from the curb to his right. This accords with the testimony of the other witnesses. That being so, the point of contact was in the normal line of southbound traffic on Ridgeland Avenue. The defendant said that his “bumper kind of touched the side a little bit” and again that “My bumper caught on the right-hand side near the rear of the other car. ’ ’ The plaintiff also testified that the point of contact was about the center of the right rear fender of his car. The force of the impact turned the plaintiff’s car over on its side and broke most of the spokes in the left rear wheel. The plaintiff’s left arm was crushed, necessitating its immediate amputation at the elbow. The jury, in answer to a special interrogatory, found that the defendant wilfully caused the injury to the plaintiff.

There is a conflict in the testimony as to the rates of speed at which the two cars were being driven. The plaintiff said that he was moving at the rate of 15 miles per hour. His testimony was corroborated by that of two other witnesses. Two witnesses for the defendant testified that the plaintiff’s machine was moving at a rate of 25 miles per hour. The plaintiff and one .of his witnesses said that the defendant’s machine, as it approached the intersection, was going 30 miles per hour. The defendant and two of his witnesses said the speed of the car was about 15 miles per hour. There was a count in the declaration charging the defendant with operating his car at a dangerous rate of speed and an additional count charging him with wilful conduct in the same respect. Whether the evidence supported either count was a question for the jury.

It is insisted by counsel for the defendant, however, that if the testimony of the plaintiff’s witnesses, as to the respective rates of speed and distances from the intersection of the two cars, be accepted, then the collision could not have occurred. It is said that the figures given by them would place the defendant’s car across and beyond the intersection before the plaintiff’s car reached the point where the accident occurred. But the cars did collide and any estimates of rates of speed or distances calculated to produce a result to the contrary must yield to this salient fact. Whether the witnesses were testifying falsely or were merely mistaken in their estimates or opinions presented a question to be considered by the jury.

One of the principal grounds urged in support of the contention that the judgment should be reversed is that the trial court erred in admitting evidence of the existence and operation of so-called ‘‘stop and go” lights. Three witnesses testified that as the plaintiff’s machine was entering the intersection the light displayed was green. Two witnesses testified that the light had changed to red before the plaintiff’s machine had passed the light post. There was evidence introduced showing that the signal lights were of the usual type, showing alternately the three colors red, amber and green. There was also testimony showing that the plaintiff and defendant and other drivers of automobiles recognized that the green light was an invitation to proceed into the intersection in question. There is a direct conflict in the testimony as to whether there was a green or a red light showing on the east side of Ridgeland Avenue, as the plaintiff approached that highway. The defendant testified that when he was within 20 feet of the light post to his right on Ridgeland Avenue the light changed to green and that he then let the clutch of his machine in and started slowly forward.

It is contended first that it was error to admit this evidence because there was no proof that the lights in question were installed or operated pursuant to the provisions of any ordinance or statute. The point possesses little, if any, merit. The lights were there. The plaintiff said that he observed them and heeded the warning given by them. The defendant said that likewise he observed and obeyed the signals. The jurors must have known from common experience that careful drivers of automobiles recognize lights of this kind as a device for the regulation of traffic. They must also have known that prudent drivers do not take the risk of crossing streets or boulevards with the red lights against them upon the strength of the possibility that there might not be any valid ordinance requiring observance of the signals.

It is finally urged that the testimony as to the lights should have been excluded because the only count in the declaration, charging the defendant with tortious conduct in failing to observe the lights, was withdrawn prior to the time of the trial. The contention is untenable. The first count of the declaration charged negligence generally. The testimony was material and competent in support of this count. North Chicago St. Ry. Co. v. Cotton, 140 Ill. 486, and South Chicago City Ry. Co. v. Purvis, 193 Ill. 454. In the latter case the declaration consisted of one count which charged the defendant generally with negligence in the operation of one of its street cars. Evidence was admitted on the trial showing that the brake and controller on the ear were out of repair and not operating properly. The Supreme Court held that this evidence was properly admitted, as bearing upon the question as tq how the car should have been operated, saying:

“The evidence complained, of was inadmissible as tending to support an independent cause of action. It was, however, admissible as bearing upon the question of the manner in which the car should have been run and operated when approaching the avenue. The fact that the evidence tended to support a charge of negligence not made in the declaration did not render it improper, so long as it had a material bearing upon the charge of negligence made in the declaration. (North Chicago Street Railway Co. v. Cotton, 140 Ill. 486). Especially is that true in view of the fact that the court gave to the jury an instruction which limited the effect of such evidence, and informed them there could be no recovery based upon the fact that the brake and controller upon the car worked hard or were out of repair.”

In the instant case the court, at the request of counsel for the defendant, instructed the jury that the testimony relating to the “stop and go” lights was received for the purpose of showing all of the surrounding conditions under which the accident happened and that “The operation of these lights under the issues as formed in this case did not then and there create any duty on the part of either the plaintiff or defendant to observe their operation or to regulate their conduct thereby. ’ ’ This instruction restricted the use which the jury should make of the evidence to an extent quite favorable to the defendant.

Finally it is urged that no evidence was admissible in support of the count of the declaration charging negligence in general terms because other counts specified particular acts of negligence. It is said that the plaintiff was bound to rely upon the specific acts of negligence charged; In support of this contention 23 authorities are cited. Only three of them are Illinois cases. The cases from this jursidiction relied upon are Straight v. Odell, 13 Ill. App. 232; O’Connor v. Prendergast, 99 Ill. App. 531, and Elgin, Aurora & Southern Traction Co. v. Hench, 132 Ill. App. 535. The first of these cases holds that where the plaintiff, in his declaration, alleges a particular act of negligence, he cannot recover on proof of other acts of negligence. In the second case all of the counts in the declaration charged that the plaintiff sustained injuries to his back and it was held that he could not recover damages caused by an injury to one of his legs. The third case held that the trial court erred in admitting in evidence a resolution of the city council of St. Charles notifying the defendant company to operate its trains at a speed of two miles per hour over a certain bridge. There was no charge in the pleadings of negligence based on the speed of the car. Furthermore the court held that the evident purpose of the evidence was to show that the city council was of the opinion that a rate of speed in excess of that stated in the resolution was dangerous.

The settled rule in this State is that the plaintiff may charge different acts of negligence in different counts of his declaration and is entitled to recover if the evidence supports any one good count. This is true even though the court erroneously denies a motion to take from the jury counts of the declaration which are not supported by the evidence. Scott v. Parlin & Orendorff Co., 245 Ill. 460. It was there said that it would be presumed that the jury based their verdict on the count supported by the evidence. A count charging general negligence in the operation of a vehicle is not obnoxious to a general demurrer and, certainly, is sufficient after verdict. Chicago City Ry. Co. v. Jennings, 157 Ill. 274, and Chicago & A. R. Co. v. Redmond, 171 Ill. 347.

In the case of Hooper v. Adams Exp. Co., 289 Ill. 169, the declaration consisted of two counts. The first charged in general terms that the defendant negligently drove his horse and wagon. The second alleged driving at an unlawful and unreasonable rate of speed. The court withdrew the second count from the jury. The only evidence of negligence was the driving at an excessive rate of speed and this was held to be admissible under the first count notwithstanding the withdrawal of the count charging specifically negligence in this respect.

The trial court refused to give defendant’s instruction No. 5, which reads as follows:

“The Court instructs the jury that at the time and place in question the defendant had the right of way over the plaintiff and that it was then and there the duty of the plaintiff to permit the defendant to pass first over the intersection of said highways. ’ ’

But the court did, at the request of the defendant, instruct the jury as follows:

“If you find from the evidence, under the instructions of the Court, that the automobile of the defendant was proceeding in a Southerly direction along Ridgeland Avenue, and that the automobile of the plaintiff was proceeding in a Westerly direction along Washington Boulevard, and that as the defendant’s automobile was proceeding in a Southerly direction along Ridgeland Avenue and approaching said Washington Boulevard said automobile of the defendant was in full view of the plaintiff, and would reach Washington Boulevard at or before the time plaintiff’s automobile would reach said intersection, the court instructs you, as a matter of law, that, under the circumstances, it was then and there the duty of the plaintiff to cause his automobile to stop or slow down so as to permit the automobile of the defendant to proceed across said intersection.”

This instruction correctly stated the law applicable to the facts in the case and it was not error to refuse instruction No. 5. Heidler Hardwood Lumber Co. v. Wilson & Bennett Mfg. Co., 243 Ill. App. 89. There the court, in construing the section of the Motor Vehicles Law, Cahill’s St. ch. 95a, If 34, relating to the right of way of drivers, said:

“It would seem to be clear that the statute does not mean that the driver of a vehicle approaching an intersection must yield the right of way to one approaching the same intersection on his right, without regard to the distance that vehicle may be from the intersection when he reaches it or to the rates of speed at which the two vehicles are traveling. When the driver of a vehicle approaches an intersection and he sees another vehicle approaching from the right, at a greater distance from the intersection and at a speed such that, in the exercise of due care, he believes he will be across the intersection before the vehicle approaching from the right reaches it, then, in our opinion, the latter car is not one ‘approaching from the right’ within the meaning of the statute, and so as to require such driver to stop or yield the right of way. Whether, in exercising his judgment and going ahead, the driver exercised due care, is, we repeat, ordinarily a question for the jury to decide. Such would be the situation, in our opinion, where, as in the case at bar, the evidence showed that the collision occurred when the car approaching from the left had reached the area beyond the middle of the intersection and the one approaching from the right had not then reached the middle of the intersection and where the car coming in from the left, was struck in the rear by the front part of the car coming in from the right.”

Under a similar state of facts the court in the case of Salmon v. Wilson, 227 Ill. App. 286, held that the trial court did not err in refusing to instruct the jury that the defendant had the right of way at a street intersection simply because his car was approaching from the right and the plaintiff’s car coming from the left, regardless of speeds and distances.

The court was justified in refusing to give defendant ’s offered instruction No. 10 for the same reasons that it properly refused to give instruction No. 5.

The defendant in his tendered instruction No. 20, which was refused, asked the court to advise the jury that as to the first three counts of the declaration, charging negligence, contributory negligence on the part of the plaintiff would bar recovery but that as to the two counts which charged the defendant with wilful and wanton conduct, this defense was not available. It was not reversible error to refuse this instruction because instruction No. 1 given at the request of the plaintiff told the jury, in substance, the same thing, except that it omitted to tell them which counts charged negligence and which charged wilful and wanton conduct.

It is further argued that plaintiff’s instruction No. 1 should not have been given because it was mandatory and ignored an affirmative defense, i. e., wilful and wanton conduct on the part of the plaintiff. We have stated the substance of the instruction above. It did not, either by express terms or in effect, direct a verdict in favor of the plaintiff. It simply told the jury that contributory negligence was a defense to a case based upon negligence and that it was not a defense to an action charging wilful conduct. It also defined the elements of such conduct. It did not advise them that wilful and wanton conduct by the plaintiff would not prevent recovery. The case of Mooney v. City of Chicago, 239 Ill. 414, is cited in support of the contention. In that case the court held that an instruction, containing an hypothesis of facts which, if found to be true, would require a verdict for the plaintiff, should contain all the facts necessary to sustain the verdict and should not ignore an affirmative defense where there is evidence fairly tending to support it. The rule there stated is not applicable to the instruction complained of. The rule laid down in Mt. Olive & Staunton Coal Co. v. Rademacher, 190 Ill. 53S, that the plaintiff has the right to have the jury instructed as to the law applicable to his theory of the case, without anticipating and excluding every possible defense, does apply. See also Chicago & A. R. Co. v. Harrington, 192 Ill. 9.

It may be worthy of passing comment to note that if defendant’s refused instruction No. 20 had been given, it would have told the jury that the defense of contributory negligence did not apply to the counts charging wilful and wanton conduct, and without any reference to the effect on the issues of like conduct on the part of the plaintiff. The defendant asked the court to do the very thing that the court did, at the request of the plaintiff.

It is suggested, but not argued, that the court should have given defendant’s refused instruction No. 4, which reads:

“The Court instructs the jury that if they believe from the evidence and under the instructions of the Court that plaintiff at the time and place in question operated and drove his automobile with reckless disregard of defendant’s rights to the use of the highways in- question, then they should find the defendant not guilty under all counts of plaintiff’s declaration.”

The instruction is ambiguous and confusing. It is peremptory in form and would have informed the jury that it was their obligation to find the defendant not guilty if his rights to the use of the highways in question were recklessly disregarded by the plaintiff, regardless of whether such violation of rights had any causal connection with the. accident. The rights of the parties to the use of the highways were not in issue except incidentally as bearing upon the question as to which party was responsible for the collision. The jury were properly advised, by given instructions, as to the test for determining who had the right of way and as to what constitutes wilful and wanton conduct. It was not error to refuse the instruction.

The court properly refused to give defendant’s instruction No. 1. It was designed to tell the jury that the violation of an existing duty or law of the State would not of itself constitute wilful or wanton conduct. It was cautionary in nature and unnecessary in view of the fact that the jury were advised as to what did constitute wilful or wanton conduct. Counsel say in their brief:

“The second count in the declaration charged the defendant with negligence in that he drove his vehicle at a sped in excess of 15 miles an hour in violation of Section 22 of the Illinois Motor Vehicle Act. The first additional count charges a wilful and wanton neglect to perform that same duty. These two counts went to the jury over plaintiff in error’s objection. We have already shown that this was error in view of the evidence of the defendant. To stifle these charges still further the trial Court refused the above instructions.”

This statement is incorrect and misleading. We trust that it was not intended to be so. In the additional count charging excessive speed and wilful and wanton conduct in that respect, there is no reference whatever to any section of the Motor Vehicles Act or of any other statute.

Complaint is made of prejudicial remarks and rulings of the trial court. The principal point urged is that the court unduly restricted and limited the cross-examination of the plaintiff and one of his witnesses. The court did not abuse its discretion in preventing repetition of the same questions put in different form. It is also said that the trial judge indicated a friendly attitude toward the plaintiff and that on one occasion he aided the plaintiff in extricating himself from an embarrassing situation. The plaintiff had testified that going at the rate of 15 miles an hour'he could stop his car on a dime. The court sustained an objection and suggested that counsel should move to strike the answer because the question failed to include the condition of the pavement. The defect was cured in another question and the plaintiff said that he could stop his car within a distance of 5 feet. What was embarrassing about the situation we fail to observe. In common automobile parlance there is no difference between the diameter of a dime and 5 feet. The objections in this respect are not of substantial merit.

For the foregoing reasons the judgment of the superior court of Cook county is affirmed.

Affirmed.

Holdom, P. J., and Wilson, J., concur.


source: Caselaw Access Project

author: Mr. Justice Wilson

license: Public Domain

text:
    Carl A. Fick et al., Appellants, v. Bertha C. Burnham et al., Appellees.
    Gen. No. 32,837.

      Heard in the third division of this court for the first district at the June term, 1928.
    Opinion filed January 30, 1929.
    Bryant, Meneely, Irrmann & Lews, for appellants.
    Frank T. Murray and Elmer M. Leesman, for appellees.
   Mr. Justice Wilson

delivered the opinion of the court.

The complainants, Carl A. Fick and Vivienne Fick, as owners and joint tenants of lot 20, and Horace L. Howard and Olga E. Howard, owners and joint tenants of lot 21, both in Betts’ Second Addition to Lincolnwood, filed their bill of complaint charging that prior to the sale of any of the- lots in the subdivision, an agreement was entered into by the owners of said property establishing certain restrictions, which agreement was filed in the recorder’s office of Cook county, Illinois.

The bill further charges that the agreement of said subdivision contained, among other restrictive covenants, a provision that no building should be erected on any lot except a private dwelling house to be occupied by one family only, together with barns, garages and other outbuildings. The agreement further contained a restrictive covenant to the effect that no residence should be constructed unless the lot should have a frontage of 65 feet or more, and then only one residence for each 65 feet, the frontage being that on Colfax Street.

The bill charges that one Bertha C. Burnham, a defendant to said bill, purchased lot 19 in Betts’ Second Addition to Lincolnwood on" November 23, 1926, subject to the agreement hereinbefore referred to. It is further charged that, notwithstanding said restrictions, said defendant has caused to be prepared plans and specifications and has commenced the erection of two residences upon said lot 19, in violation of the restrictions contained in the deed; charges that one Tyson, a party defendant, is, in fact, the true owner of said property and that the buildings are being constructed for his use and occupancy; charges further that the defendants have been advised of the objections of other property owners in said subdivision and asks that defendants be restrained or enjoined from building or erecting more than one residence on said lot.

The answer, in effect, denies the allegations of the bill and charges further that the defendant Tyson commenced the erection of an expensive and attractive brick -residence for the benefit and use of himself and family; that the second structure is a two-story brick-cottage, intended for the use of his chauffeur, and is on the extreme end of his premises and about 35 feet back from the Ewing Avenue lot line. The answer further alleges that there are other lots in the subdivision containing more than one residence and that there has been a general practice of building more than one residence on lots without objection or protest on the part of the owners of other lots in said subdivision.

Upon a hearing upon the bill and answer, the chancellor found the issue in favor of the defendants and dismissed the bill for want of equity and it is from this decree that the appeal has been perfected to this court.

There appears to be very little, if any, dispute as to the material facts and most of these are contained in the stipulation agreed upon between the parties. Lots 20 and 21 owned by the complainants are a part of the subdivision known as Betts’ Second Addition to Lincolnwood and face south on Colfax Street. Lot 19, being the lot in question, owned by the-defendants, adjoins lot 20 on the east and also faces south on Colfax Street with its east side extending along Ewing Avenue. Lot 19 has a frontage of 70 feet on Colfax Street, extending along Ewing Avenue for a distance of 194.35 feet. Tyson purchased the lot in question and took title in the name of one B. C. Burnham, as a matter of convenience. On or about December 13, 1926, the defendant began the construction of two buildings on said lot, both facing upon Ewing Avenue and on or about December 22, 1926, permits were issued by the building commissioner of Evanston for the erection of said buildings. These notices were posted, as provided by ordinance, on that date on the tool shed of the contractor, located midway between Colfax Street and an alley in the rear of said lots. These permits provided for one 2-story brick veneer dwelling with garage attached, at 2801 Colfax Street and for another 2-story brick dwelling also at 2801 Colfax Street.

One of the complainants, Vivienne Fick, testified that she first learned that the vacant lot was to be improved during the latter part of December, 1926, or the first part of January, 1927; that she talked to the workmen and was told that the building in the rear was to be a garage with servants’ quarters above. She testified further that after suit was started, the work was hurried on the building on the rear of lot 19, and practically stopped on the main residence. She testified further that she tried to locate B. C. Burnham, but could not find her name in either the Chicago or the Suburban Telephone Directory. It appears that B. C. Burnham was listed in a book known as Polk’s Evans-ton & North Shore Directory. She also talked with the building commissioner, about the 5th of February, who, in turn, about that date, talked to Tyson concerning the restrictions. The bill was filed February 14, 1927. Tyson, the defendant, testified that prior to the beginning of the erection of said buildings, he consulted attorneys and examined other property in the subdivision and that there were two lots, known as 28 and 38, in the subdivision upon which were two residences, either built or under construction, and that this situation existed subsequent to the purchase of com-, plainant’s property and that said lots were corner lots. It appears from the evidence and from the plat in evidence that these lots are not in the block in which the lots of the complainants and the defendants are located. The fact that restrictive covenants in deeds to property in other subdivisions in the neighborhood have been violated does not" concern the defendants in this action.

Lot 28 has a dwelling facing upon Colfax Street and the other dwelling on said lot faces upon Forestview Road. Lot 38' is approximately a block and a half away from the residence of the complainants and the dwelling upon the rear of said lot 38 faces upon Grant Street.

The dwelling erected by the defendant Tyson upon the front of lot 19 appears to have cost approximately $42,000, and the dwelling in the rear, referred to as a cottage with a basement, appears to have cost approximately $12,000. The garage is attached to the main dwelling located on the front of said lot and there appears to be a distance of approximately 65 feet between the two dwellings. The fact that the garage is attached to the main dwelling; that the so-called chauffeur’s cottage with a basement, erected at a cost of approximately $12,000, is 65 feet from the residence on the front of the lot and that the application for a building permit was entitled, “dwelling,” would indicate that this second structure was intended for use and occupancy by a member of the family or a tenant, other than for the use and occupancy of a chauffeur and his family. It would be only natural to suppose that if it had been the intent of the owner of lot 19 to have intended it for the use of a chauffeur and his family that the garage would have been attached thereto, rather than to the main dwelling located hearer Colfax Street. The fact that the defendant Tyson investigated the surrounding neighborhood and consulted counsel, indicates an intention to violate the restrictive covenant, if possible. An earnest desire for information would have suggested consulting his neighbors upon the street for the purpose of finding out whether there was any objection to the contemplated improvement.

The plat of the subdivision, in which is contained lot 19, provided that it, as well as the other lots on Colfax Street, should front upon that particular thoroughfare. The agreement establishing the subdivision in question provided, among other things, as follows:

“(f) That no buildings of any kind or character shall be erected on any portion of said property except private dwelling houses designed to be occupied by one family only together with barns, garages and other outbuildings thereof.
(g) No residence shall be constructed on any portion of said real estate as now or hereafter platted, unless such portion shall have a frontage of 65 feet or more and then only one residence for each 65 feet and no residence shall be constructed on any lot adjoining Grant street and facing either east or west, unless such lot shall have a frontage of at least 75 feet.”

It was the evident purpose of the agreement to create a subdivision of wide-open spaces. The fact that one lot happened to be a corner lot did not entitle it to any advantage over the other lots by reason of that fact. The restrictive covenant, properly construed, provides that but one residence should be erected upon each lot. The building of two dwellings upon lot 19, owned by Tyson, was a direct violation of this covenant. While there is no evidence in the record as to the number of rooms contained in the dwelling, nevertheless, its cost indicates that it is more than a cottage and the photographic exhibit attached to the record discloses the fact that it is a 2-story building substantially built and with a commodious porch presenting the appearance of a modern dwelling of considerable size and evidently capable of housing a large family.

Counsel for the defendants in their brief argue that they do not rely solely upon the question of laches. No set rule can be applied to this particular question and, in the case at bar, we are of the opinion that the defendant Tyson was fully consonant of the fact that in placing two dwellings on the property he was approaching near, at least, the border line of his legal rights. The fact that the property was taken in the name of another rendered it difficult for the complainants to discover the real owner of the property. This may not have been done by Tyson for the purpose of confusing the complainants, but it had that effect. Moreover, the defendant Tyson was a real estate man and presumably fully versed in covenants and deeds and the rights of owners of property in restricted subdivisions.

The fact that the work on the dwelling facing upon Ewing Avenue was hurried after the neighbors began to make inquiries as to what it was intended to be indicates a disregard of their rights and an intention to push the work regardless of results.

The complainants communicated with the building commissioner who, in turn, saw the defendant Tyson, and there is evidence in the record that complainants were misled by the statements of the workmen to the effect that the basement was intended for the purpose of being utilized under a garage with servants’ quarters above, rather than for a dwelling which could be used by a family, other than servants of the defendant Tyson. Under the circumstances, we are of the opinion that the complainants are not estopped by reason of laches upon their part.

The violations by others were such that, in our opinion, they did not deprive the complainants of their rights to question the action of the defendant in violating the particular covenants in this action. There is no single violation of this covenant on Colfax Street on the side upon which lot 19 is located. The fact that there may have been one or two other violations in this particular subdivision does not create such a general breaking down of the covenant in question as to deprive the complainants of their rights to insist upon its enforcement. O’Gallagher v. Lockhart, 263 Ill. 489.

We are fully aware of the rule that covenants should be construed so as to resolve all natural rights against the restrictions but, in this case, the restriction requires no interpretation as its meaning is fairly expressed in the covenant. There appears to be a modern tendency to encroach upon the rights of others who have already purchased and built with full reliance on such covenants and this is not to be encouraged. Persons who have made investments in full reliance upon the fact that others would observe such covenants, should be protected. The Supreme Court of this State in the case of Turney v. Shriver, 269 Ill. 164, in its opinion says:

“Appellants knew, when they purchased the lot, of this restriction in the deed and the manner in which it might be used and the restrictions to which it was subject. These matters were all undoubtedly taken into consideration by the parties in fixing the price of the lot at the time it was sold, and if such restriction was a damage to the lot appellants received full advantage of the same at the time they purchased the lot. At any rate, they purchased the lot subject to those conditions and restrictions, and are now bound by them so long as the restrictions are reasonable and not contrary to the public policy or some positive rule of law. We find nothing in the restrictions in question of that character, and it is therefore but equitable to hold that they must abide by the terms of the contract they have made and by virtue of which the land was conveyed to them. Frye v. Partridge, 82 Ill. 267; VanSant v. Rose, 260 id. 401.”

As to the question of the increase in the value of property adjacent by reason of the improvement, we feel that the complainants should not be precluded from asserting their right to the enforcement of the covenant, as the particular object of said covenant appears to have been the preservation of the light and air, rather than any increase in values. Moreover, the building was continued after the filing of the bill and, while it is true that a mandatory injunction may create a hardship, the defendant was fully aware of the fact that by continuing the erection of the dwellings in question he was taking a chance and it apparently appears to have been his object so to do. We see no force in this argument. The principal or main dwelling facing upon Ewing Avenue and' extending along Colfax Street appears to have been provided with a very substantial open porch of iron and brick construction extending out beyond the building line. While this, to some extent, shuts off the light and air and is contrary to the spirit of the covenant, nevertheless, under the interpretation of the courts of this State it is not contrary to the letter of the covenant. Counsel for the complainants are not insisting upon the removal of this part of the main residence, and, therefore, so far as this particular dwelling is concerned, the prayer of the bill should be denied. So far as the dwelling upon the rear of lot 19 is concerned, it is our opinion that it is violative of the restrictive covenant contained in the deed to Burnham and should be removed.

For the reasons stated in this opinion the decree of the circuit court is reversed and the cause remanded with directions to grant a mandatory injunction in accordance with the views expressed in this opinion.

Decree reversed and cause remanded with directions.

Holdom, P. J., and Byner, J,, concur.


text:
    Minnie D. Kiewert, Appellee, v. Balaban & Katz Corporation, Appellant.
    Gen. No. 32,972.

      Heard in the third .division of this court for the first district at the October term, 1928.
    Opinion filed January 30, 1929.
    Cassels, Potter & Bentley, for appellant; Ralph P. Potter and Kenneth B. Hawkins, of counsel.
    John A. Bloomingston, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.

The plaintiff Minnie D. Kiewert brought her. action in trespass on the case in the superior court to recover damages for personal injuries sustained while attending a moving picture show at the Tivoli Theatre in Chicago, which was owned and operated by the defendant Balaban & Katz Corporation, a corporation. The trial resulted in a verdict in favor of the plaintiff and judgment was entered upon the verdict, from which this appeal was taken.

The testimony, practically. undisputed, shows that plaintiff at the time of the accident in question was 45 years of age and, with her husband, was attending a moving picture show at the Tivoli Theatre on November 21, 1925. She was occupying what is known as an aisle seat, about 10 rows from the front, and her husband was seated immediately upon her right. At the time of the accident the theater was dark, it being a moving* picture house, and while the plaintiff was seated, she was suddenly struck upon the head by either a flash light or a swagger stick belonging to an usher in the theater. At the trial the plaintiff and her husband testified that it was a flash light. The usher of the defendant testified that it was a swagger stick about 20 inches long and weighing about 4 ounces. The plaintiff after being struck fell over on her husband’s shoulder and the usher standing by said, “I am sorry, Madam, I struck you. ’ ’

Robert Jackson, the usher employed by the defendant, testified that on the ground floor, upon which the plaintiff was sitting, there were lights located at the end of the seats, about 12 inches from the floor, upon the aisles of the theater, so that a light was thrown upon the floor and that no flash lights were carried by the ushers in this part of the theater, but that flash lights were carried by the ushers in the balcony and upper floors. He testified that át the time of the accident he was holding a swagger stick and had stopped in the aisle, when some people in the rear came in contact with him and pushed the stick from under his arm and, in falling, it struck the plaintiff upon the head and then fell upon the floor; that he then stooped to pick up the stick and told Mrs. Kiewert that he was sorry. The plaintiff then asked for the manager and the witness then procured Mr. Potter, employed by the company, and, together with Mr. Kiewert, they escorted the plaintiff to the office of the manager. Dr. Otto Ludwig was summoned and treated the plaintiff and asked her to return to his office the following morning, which she did, and there he again treated the plaintiff and asked her to return again upon the following Monday, but she did not again return to his office nor did she receive any further treatments from him.

Dr. Ludwig testified that when he examined Mrs. Kiewert in the office of the theater there were no symptoms of anything which he considered serious. He stated there was a barely perceptible amount of swelling, but there was no bleeding or breaking of the skin.

The plaintiff testified that the night after the accident she was nervous and nauseated and vomited during the night; that she was confined to her bed until the latter part of February and during that time was treated by Dr. Leahy, who came every day; that she was compelled to have a nurse during that time; that she has a continuous pain in her head and there appears tp be an ever present pressure; that she has suffered continuously from headaches and roaring in both ears and cannot read; that if she takes physical exercise her condition gets worse.

Agnes Collins, a nurse, testified that she attended the plaintiff for the first two weeks after the accident and that plaintiff was in bed and unable to take any nourishment and appeared weak and had a blood discharge from her nose; that she appeared to suffer pain and when asleep would start up suddenly and put her hands to her .head.

May Thiers, a witness for the plaintiff testified that she was a nurse and was with the plaintiff for six weeks and that the plaintiff could not help herself nor sit up any length of time and appeared to be semiconscious and subject to dizzy spells.

Mr. Kiewert testified that, after the accident, there was a bump on his wife’s head and that he had to assist in nursing his wife for nearly three months and that she had vomiting spells and appeared to be in pain; that before the accident she was in good health and did her own housework and that since the accident she had lost a great deal of weight.

Dr. Leahy, the attending physician, testified that upon his examination, two days after the injury, he found a swelling on the left side of the head at the prominence of the occipital bone; that her eyes were dilated and reacted sluggishly and did not respond to the light test which indicated some disturbance of the brain or the nerve centers; that the plaintiff complained of vomiting and being nauseated; that plaintiff’s skull was fractured and that he found a well-marked separation of the frontal and parietal bone; that she suffered from headaches; that he saw her professionally twice a day for the first two months and after that about once a week and thereafter once every two or three weeks, and that she is still under his care.

Dr. Warren W. Fury testified that, from an examination of the X-ray pictures taken of the plaintiff’s skull, there were indicated three lines of fracture.

Dr. L. W. Pease, sworn as an expert witness on behalf of the plaintiff, after an examination of the X-ray pictures, testified to the same effect.

On behalf of the defendant, Dr. Edward S. Blaine testified that he was a physician engaged exclusively in X-ray work and that he had examined the X-ray pictures and could find no shadows representing fractures at the vault or base of the skull; that the usual symptom following a skull fracture is unconsciousness, and that such a fracture is usually accompanied by a tear of the scalp; that while it was possible for a patient with a fractured skull to go out to a doctor’s office the following day after such an accident, it was unusual; that a characteristic symptom of brain disturbance following a trauma was a drowsy stupid condition.

Dr. Maximillian John Hubeny testified on behalf of defendant that from the X-ray picture the skull appeared to be thick, but still within the maximum limit and that he could find no indication of trauma or fracture of the skull from the picture,

The verdict of the jury was for $15,000 and it was upon this verdict that judgment was entered.

It is insisted on behalf of the defendant that there was no evidence of any negligence on the part of the defendant or its agent which was shown to be the proximate cause of the injury; improper evidence was introduced by the plaintiff tending to show defendant was covered by liability insurance; remarks and conduct of plaintiff’s counsel were improper and prejudicial; the trial court erred in permitting plaintiff’s attending physician to answer a hypothetical question and give his opinion without confining it to the premises contained in the question; and, that the damages are excessive.

The court instructed the jury to the effect that the defendant was required to exercise ordinary care for the safety ‘of the plaintiff while a patron in its-establishment and the case appears to have been tried upon that theory of the law. The owner of a theater is not an insurer, but is liable only upon his failure to use reasonable care to make the premises reasonably safe for the purpose for which they were intended. Under the facts in this case it appears that plaintiff, at the time of the accident, was, herself, in the exercise of ordinary care. The theater at the time of the accident was dark; plaintiff, without any warning,' suddenly received a blow upon the head from either a swagger stick or a flash light in the hands of an usher, an employee of the defendant company. So far as we can see the question as to whether it was a flash light or a swagger stick is immaterial. It is admitted that she was struck. The plaintiff was unable to adduce any evidence, other than the facts stated.

When a thing which has caused an injury is shown to be under the management of the party charged with negligence, and the accident is such as in the ordinary course of things will not happen if those who have such management use proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the parties charged, that it arose from the want of proper care. Feldman v. Chicago Rys. Co., 289 Ill. 25; Sheets v. Star Cleaners & Dyers, Inc., 238 App. 323; Walsh v. Moore, 244 Ill. App. 458.

It is not necessary that a relationship of carrier and passenger exists in order to create such a presumption of negligence. Where a person is in the exercise of due care for his own safety and is injured by instrumentalities under the control of another, and the injury is inexplicable except on the hypothesis of negligence, a prima facie case is created and the law places the burden upon those in control of the instrumentalities to explain the cause of the accident and to show that they are free from negligence.

The court in the case of Sheets v. Star Cleaners & Dyers, Inc., hereinbefore referred to, in its opinion says:

“This being undisputed, it is self-evident that such accidents did not ordinarily occur and the rule of law in this State in such cases that proof of an injury to person or property occurring as the proximate result of an act, which under ordinary circumstances would not, if done with due care, have injured any person or property, is enough to make out a presumption of negligence. And this is held to be the rule, even where no special relationship like that of passenger and carrier exists.”

It is urged on behalf of the defendant that the accident was caused by some one coming in contact with or crowding or bumping against its employee, as a result of which he was thrown against the plaintiff. It is insisted that the accident, therefore, was caused by a third person, but this argument presupposes the fact that the defendant was not negligent in preventing-such a situation or occurrence, Negligence may consist in permitting an overcrowding of aisles in theaters or the rushing in of patrons so as to cause confusion and accidents.

The jury was clearly and fully instructed on behalf of the defendant on this theory of the case and, by their verdict, found that the defendant was not relieved from liability by reason of the facts adduced by the defendant in support of this contention and we see no reason for disturbing the judgment on this ground.

Dr. Otto Ludwig, who treated the plaintiff immediately after the accident, was asked on cross-examination as to who paid him for the services and answered, “the Zurich Insurance Company.” No objection appears to have been made at the time nor was an exception taken to the answer; nor can we see any reason why the witness might not be asked, as it might have a bearing on the credibility given his testimony if it should appear that he had been paid,by or on behalf of the defendant. It is insisted also that other remarks made by counsel for the plaintiff were prejudicial, but we have examined the record and find that the trial court ruled properly upon objection to such remarks and that they were stricken out and the jury was specifically instructed by the court that they should not take into account or be influenced by any statement, denunciation or insinuation of counsel, unless based upon the evidence, and that any evidence which had been stricken out, or any argument of counsel to which objection had been sustained by the court, should be totally disregarded and treated as if it had never been heard by the jury. We cannot say that the remarks and the attitude of counsel, under the circumstances, were such as to create a condition of prejudice in the minds of the jury as would result in reversible error.

Dr. J. E. Leahy was asked on direct examination if he had an opinion from a medical and surgical point of view as to whether or not there was sufficient in the accident, described in the hypothetical question, to bring about the symptoms and conditions stated therein to exist, to which he replied that he did. On further questioning he stated that in his opinion it would bring about the condition. Upon cross-examination he was asked whether or not he included in his answer to the hypothetical question his own observations from personal attendance upon the plaintiff, and he stated that he did. Counsel for the defendant then moved to have the answer stricken, which was overruled. The witness was the attending physician and a great many statements contained in the hypothetical question were based upon his testimony. When the hypothetical question was put to him it necessarily contained a large number of statements of fact concerning the condition of the plaintiff to which he, himself, had testified. It was not unreasonable nor illogical for the witness to answer that some of his own observations from personal attendance upon the plaintiff were included in his answer to the hypothetical question. To some extent his statements prior to the answer to the hypothetical question were based upon things that were told him by the plaintiff as to her condition, subjective in their nature.

It is well settled in this State that an attending physician may, in forming his opinion as to the cause of a patient’s bodily condition, consider and be guided by statements made to him by the patient, although these statements are purely subjective. The rule is otherwise as to statements made to an expert who examines merely for the purpose of testifying. Devine v. Rothschild, 178 Ill. App. 13.

The cross-examination developed the fact that Dr. Leahy’s answer to the hypothetical question was based, in part, upon his own observations while attending physician, and the jury had this fact before it in considering his answer to the hypothetical question. Under the circumstances we are of the opinion that the court did. not err in refusing to strike the answer to the hypothetical question, although it would have been advisable to have had the hypothetical question again stated to the witness under proper instructions that he was to consider only the facts related in the hypothetical question and to disregard any opinions he may have formed while treating the patient as attending physician.

The Supreme Court of this State in the case of Greinke v. Chicago City Ry. Co., 234 Ill. 564, in its opinion says:

“The testimony of Dr. Cox was therefore corroborative and cumulative of facts and conditions which had been clearly established by other competent evidence. In West Chicago Street Railroad Co. v. Maday, 188 Ill. 308, on page 310, it was said: ‘"When the court can see from the record that an error committed by the trial court in the progress of the case was a harmless one, or that its injurious effect or harmful character was obviated, so as not to affect injuriously, in the final judgment, the rights of the party against whom the error was committed, it should not be allowed to work a reversal. It is more important in the administration of justice that litigation should end in the attainment of substantial justice than that a record of the proceedings should be built up which is without flaw or blemish. ’

It is insisted that the damages in this case are excessive. The condition of the plaintiff resulting from the accident, as testified to by herself and the witnesses on her behalf, appears to be serious. It is, in fact, unusual that such a condition could arise by being struck on the head, either by a flash light or a swagger stick, but it is not improbable. The testimony on behalf of the plaintiff, standing alone, unquestionably shows a condition of serious impairment, both physically and mentally to the plaintiff. The jury and the trial court had an opportunity to see and hear the witnesses and to observe the plaintiff and her condition while upon the stand. This opportunity is denied a court of appeal, reviewing the case upon the record, abstract and briefs. .While the verdict may appear to be large, we are disinclined to hold that it is excessive and we are, moreover, disinclined to substitute our opinion as to the extent of the damages for that of the trial court and jury.

For the reasons stated in this opinion the judgment of the superior court is affirmed.

Judgment affirmed.

Holdom, P. J., and Ryner, J., concur.


author: Mr. Presiding Justice Jones

text:
    Edward Weisner, Appellee, v. Ebenezer W. Engstrom, Appellant.
    Gen. No. 7,898.

      Heard in this court at the February term, 1928.
    Opinion filed August 28, 1928.
    Rehearing denied February 12, 1929.
    C. S. Thomas, for appellant.
    Early & Early, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.

Edward Weisner, a creditor of the Montana State Bank of Fallon, Montana, brought an action of debt against Ebenezer W. Engstrom to recover $500, on account of an assessment against Engstrom as a stockholder of said bank.

The declaration charges that the bank had failed; that Engstrom was a stockholder in it, and owned five shares of the par value of $100 each; that the district court of the sixteenth judicial district of the State of Montana had determined that an assessment of $100 per share should be levied against all shareholders of the bank, and that, in addition to the available assets, the full amount of such levy was needed in the liquidation of the bank’s affairs; and that the said district court had appointed a receiver for the bank and authorized him to institute proper proceedings against the several stockholders for the recovery and collection of the par value of their respective holdings. This" suit was not brought by such receiver, but by a creditor for the use of all creditors of the bank.

A demurrer was sustained to the original declaration. An amended declaration, with the averments above set out, was filed and a demurrer to it was overruled. The amended declaration was accompanied by an affidavit of plaintiff’s claim, under section 55 of the Practice Act, Cahill’s St. ch. 110, fí 55. The defendant filed a plea of the general issue, and five special pleas, all accompanied by an affidavit of defense. The first special plea sets forth certain laws of Montana, and avers that by reason thereof the courts of that State have exclusive jurisdiction of the matter, and that the circuit court of Winnebago county is without jurisdiction. The second special plea avers that plaintiff is not the proper person to bring this suit. The third special plea avers that no court in Montana ever obtained jurisdiction of defendant’s person, and any order of court which may have been entered there, failed to impose any liability on him. The fourth special plea avers that there has been no determination by a Montana court of the just proportion of the corporate indebtedness to be borne by the defendant, and that until such determination, the courts of Illinois will not take jurisdiction. The fifth special plea is one of nul tiel record.

At the special July 1927 term of the circuit court of Winnebago county, a motion was made by plaintiff to strike the first four special pleas. The record does not disclose the grounds of the motion, but it was allowed and the pleas were stricken. No bill of exceptions, incorporating the four stricken pleas and the ruling of the court thereon, was preserved. In the absence of a bill of exceptions showing such motion and ruling, we cannot give consideration to the error assigned. (Finch & Co. v. Zenith Furnace Co., 245 Ill. 586; People for use of Gobin v. May, 276 Ill. 332; Illinois Surety Co. v. Munro, 209 Ill. App. 407.)

At the next succeeding term of the circuit court, plaintiff moved to strike the affidavit of defense and the fifth special plea. This motion was in writing and made no reference to the plea of the general issue. The grounds of the motion are that the affidavit presents the identical defense set forth in the first four special pleas which had been stricken, and also that the fifth special plea is a plea of nul tiel record and was not supported by the affidavit of defense. The motion was allowed and the fifth special plea and the affidavit of defense 'were stricken. The defendant thereupon elected to stand by his pleadings and judgment was entered against him as by default. From that judgment this appeal is prosecuted.

In cases of this kind, the plaintiff must both aver and prove that a court of foreign jurisdiction has determined the relations of the creditors, stockholders and the corporation to each other, and the proportionate share of the corporate indebtedness to be borne by the stockholders of the insolvent corporation, before any action will lie in Illinois against a stockholder. We are of the opinion that such a determination is necessary as a condition precedent to the maintaining of an action in this State against a stockholder of a foreign corporation. (Young v. Farwell, 139 Ill. 326; Tuttle v. National Bank of the Republic, 161 Ill. 497.)

The declaration expressly averred that such a determination had been made by a court of competent jurisdiction in the State of Montana. But the affidavit of defense denied that any such determination had been made. Such denial raised a triable issue and if it should be decided in favor of the defendant, then no recovery can.be had against the defendant in the present action. The plea of mil tiel record was a proper plea and the affidavit of defense was broad enough to include it. It therefore follows that the court erred in striking the fifth special plea and the affidavit of defense. However, no error was assigned as to the striking of the plea, but. error was assigned because of the striking of the affidavit and the entering of judgment as by default. The errors have been sufficiently presented and as they deprive appellant of the right to submit his case, this cause must be reversed and remanded.

The fact that the general issue was left on file is of no moment, because under section 55 of the Practice Act, Cahill’s St. ch. 110, If 55, when the affidavit of defense was stricken, the plaintiff had a right to move for judgment as in case of default. The plea without an affidavit could not prevent the allowance of the motion. Nothing can be shown under any plea in the absence of an affidavit of defense when the plaintiff has already filed an affidavit of claim under said section 55.

Reversed and remanded.


author: Mr. Justice Boggs

text:
    Robert Mitchell, Appellee, v. Howard W. Short, County Clerk of Winnebago County, Appellant.
    Gen. No. 7,962.

      Heard in this court at the October term, 1928.
    Opinion filed January 25, 1929.
    William D. Knight, State’s Attorney, and A. B. Louison, Assistant State’s Attorney, for appellant.
    Welsh & Welsh, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.

A petition for a writ of mandamus was filed by appellee in the circuit court of Winnebago county to compel the appellant county clerk of said county to deliver to appellee a certain county order for $12 in payment of a claim allowed by the county board of said county. Upon demurrer to said petition being overruled, and appellant having elected to abide said demurrer, judgment was entered granting said writ as prayed. To reverse said judgment this appeal is prosecuted.

Said order was countersigned, “Frank H. Carson Treasurer by Clara M. Savage Deputy,” and the.primary question for determination is as to whether said order was countersigned as contemplated by statute.

Cahill’s St. ch. 35, If 10, subd. 3, provides: “Before any such order is delivered to the person for whose benefit it is drawn, the county clerk shall present the same to the county treasurer, who shall personally countersign the same.”

Cahill’s St. ch. 36, Hlf7 and 8, provide: Section 7. “When any county order is presented to him to be countersigned, the county treasurer shall personally countersign the same, and shall also enter in a book, to be kept by him for that purpose, its number, date and amount, and the name of the person to whom the same is payable, and when any such order is paid, he shall cancel the same, and note the fact opposite such entry.” Section 8. “The county treasurer shall not countersign any county order before the same is filled up, nor until he shall have examined the records of the county board, and ascertained that the issuing of such order is warranted thereby.”

It is contended by counsel for appellant that the statute first above quoted required that county orders of the character of the one here in question must be countersigned by the county treasurer in person. On the other hand, counsel for appellee insist that, in contemplation of said statute, such county orders are personally countersigned when so signed by a regularly appointed deputy. An examination of said petition discloses that the appointment of said deputy was in every way regular, and that she took the oath of office as required by statute, in fact, this is not questioned. No case directly in point has been cited either by appellant or by appellee, and we have been unable to find that this specific point has ever been passed upon by either the Supreme or the Appellate Courts. If the act of the county treasurer in countersigning such orders involves a matter of discretion to be exercised by him, then unquestionably appellee would be right in his contention. The act of a county treasurer, or like public officer, in the performance of the duties of such office is not a judicial or discretionary act but a ministerial act and, unless specifically limited, is one which may be performed by deputy.

While section. 8 of the County Treasurer Act, Cahill’s St. ch. 36, jf 8, above quoted provides that the county treasurer shall not countersign any county order before the same is filled up, nor until he shall have examined the records of said county board, and ascertained that the issuing of such order is warranted thereby, it does not thereby clothe said treasurer with judicial or discretionary powers. It is his duty when such order is regularly presented and he has made the examination above required to countersign the same. If he refuses he may by writ of mandamus be compelled to so countersign the same. In other words, the act to be performed by him is not a judicial or discretionary act but is a ministerial one. See Hughes v. Streeter, 24 Ill. 647-649; Gardner v. Bunn, 132 Ill. 403-408; People v. May, 251 Ill. 54-57; 5 R. C. L. p. 626, §12; 18 R. C. L. p. 252, §172.

A deputy of a ministerial officer appointed under a statute which contains no limitations in that regard has all the powers of his principal officer, and an act performed by such deputy in the name of his principal is the act of the principal. Hope v. Sawyer, 14 Ill. 254; Schott v. Youree, 142 Ill. 233; Woodward v. Donovan, 167 Ill. App. 503; Albert Pick & Co. v. Spoor, 212 Ill. App. 612-614; 2 C. J. pp. 331-332; 11 C. J. p 913; 18 C. J. p. 785; 22 R. C. L. pp. 583-584.

Whatever the agent or deputy does lawfully in the transaction of business embraced within his agency is the act of the principal. Qui facit per alium facit per se.

In Schott v. Youree, supra, the court at page 244, in discussing a question of this character, says: “The record in evidence is certified in due form, under the seal of the court, but it is signed, ‘J. R. McG-ready, clerk, by L. Laurent, deputy, ’ and counsel contend this is not a certificate ‘under the hand of the clerk of the court,’ as required by section 13, chapter 51, of the Revised Statutes of 1874, entitled ‘Evidence and Depositions.’ But the statute authorizes the clerk of the circuit court to appoint a deputy, (sec. 9, chap, 25, Rev. Stat. 1874, entitled ‘Clerks of Courts,’) and at the common law a deputy has power to do every act which his principal might do. (5 Comyn’s Digest, title ‘Deputy,’ p. 195.) ‘The authority given by law to a ministerial officer is given to the incumbent of the office. Authority is not given to the deputy, but to the principal, and is executed by the principal, either by himself or his deputy. ’ (5 Am. and Eng! Eney. of Law, p. 624, and cases cited. ) The objection is destitute of merit.”

In Hope v. Sawyer, supra, the court at page 257 says: “It is insisted that the certificate of acknowledgment on this deed is defective; in other words, that the acknowledgment should have been made before and certified by the clerk in person. The objection is not well founded. The acknowledgment purports to have been taken by the clerk; and it is certified in his name, and under the seal of the court. Prima facie, this is sufficient. The seal of the court proves itself; and we must presume that it was affixed by the proper officer. The presumption is that the clerk was authorized by the laws of Missouri to act through a deputy, and that Baker was regularly appointed as such. The deputy had the power to use the name of the clerk, and attach the seal of the court. The act of an agent within the scope of his authority and in the name of his principal, is as binding on the principal and third persons, as if performed by the principal personally. It is the act of the principal, and not of the agent. The certificate in question was none the less the act of the clerk, because made by his authorized deputy.”

In Albert Pick & Co. v. Spoor, 212 Ill. App. 612, a similar question arose with reference to an acknowledgment taken before the clerk of the municipal court of Chicago. The court in passing on the question said: “We think there is no merit in this contention. The deputy clerk had the power to use the name of the clerk of the court. It was within the scope of his authority, and is binding on the principal and third parties the same as if performed by the clerk personally.”

In Abrams v. Ervin, 9 Iowa 87, the court in discussing'a question of this character says:

“Where the duties of a public officer are of a ministerial character, they may be discharged by deputy. Duties of a judicial character, cannot be so discharged. The clerk is a ministerial officer. When the law gives him power to appoint a deputy, such deputy, when created, may do any act that the principal might do. He cannot have less power than his principal. He has the right to subscribe the name of his principal; and the act of the deputy, in the name of the principal, within the scope of his authority is the act of his principal.”

There would be no semblance of ground for appellant’s position under the above-mentioned authorities were it not for the fact that the statute uses the word “personally.” The above-mentioned statute appears in the Revised Statutes of 1845. The statute as it then existed did not provide for the appointment of deputies by said county treasurers. However, in 1927, section 4 of the County Treasurer Act, Cahill’s St. ch. 36, U 4, was amended to provide:

“The county treasurer shall receive and safely keep the revenues and other public moneys of the county, and all money and funds authorized by law to be paid to him, and disburse the same pursuant to law. He may also appoint deputies, who shall take and subscribe the same oath,for the discharge of their duties as is required of him, which oath shall be entered of record in the office of the county clerk. The treasurer shall, in all cases, be responsible for the acts of his deputies.”

Whatever may have been contemplated by the legislature in the act as originally passed, certainly since said amendment, it is clearly disclosed that the legislature intends that county treasurers may appoint deputies, and when such deputies are appointed that they shall, in the name of their principal, transact the business of the office.

Counsel for appellant insist, under the doctrine, that a writ of mandamus will not issue where the right thereto is doubtful; that the court was not warranted in issuing said writ for the reason that the construction of said statute does not clearly disclose the authority of said deputy to so represent her principal. A doubt as to the law arising in connection with the construction of a statute does not justify a court in refusing to issue a writ of mandamus, where otherwise proper. It is the court’s duty to solve such doubt. 18 R. C. L. p. 117, § 30; 38 C. J. 584-587; People ex rel. German Ins. Co. v. Getzendaner, 137 Ill. 234-262.

While the validity of a statute is for the Supreme Court, the construction of a statute is for the Appellate Court as well as the Supreme Court, where it properly comes before the Appellate Court. It is therefore our duty to construe the above statute and when construed to enforce it. O’Brien v. Frasier, 299 Ill. 325-327; see also Watts v. Sangamon County, 212 Ill. 86-87.

Counsel for appellant contends that while appellee may be entitled to an order properly signed by said county treasurer, he is not entitled to the specific order here involved. The allegations of the petition set forth that the order was regularly issued; that it was delivered to the county treasurer and countersigned as above set forth; that it was returned to the county clerk and that said county clerk refused to deliver the same solely on the ground that said order was not properly countersigned. We have held that the same was properly countersigned. It was therefore the duty of said "clerk to deliver the same to appellee and a writ of mandamus will lie to compel such action.

. The demurrer purported to be special as well as general. However, the purported special grounds of demurrer were not well taken, and appellant, in his argument, treated his demurrer as a general demurrer, going only to the merits of the case.

For the reasons above set forth the judgment of the trial court will be affirmed.

Judgment affirmed.


text:
    Paul S. Mantonya, Appellant, v. Wilbur Lumber Company, Appellee.
    Gen. No. 7,930.

      Heard in this court at the May term, 1928.
    Opinion filed February 4, 1929.
    Paul MagGuffin, for appellant.
    Loucks, Eckert & Peterson, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.

Paul S. Mantonya, appellant, instituted an action on the case against Wilbur Lumber Company, appellee, to recover for damages growing out of a collision between the automobile which he was driving, and a truck owned by appellee and operated by one of its drivers. The respective parties will be hereinafter referred to as plaintiff and defendant.

State Highway No. 21 is a paved road, running in a northwesterly and southeasterly direction between Gray’s Lake and Antioch in Lake county. At a point north of Gray’s Lake, the State highway intersects a north and south road, which is graveled north of the intersection but not south of it. The collision occurred at the intersection of the two roads about 10 o’clock in the morning.

The declaration consists of four counts. The first count avers that the paved road was heavily traveled and used daily by a great many people and vehicles, with much less travel on the intersecting road; that defendant was operating a truck in a southerly direction upon the dirt or gravel road; that plaintiff was driving his automobile in a northwesterly direction upon the paved road, toward and over the road crossing, with ordinary care on his part; that it was the duty of defendant to exercise ordinary and reasonable care in the operation of said truck, with due regard for the rights and safety of persons and vehicles lawfully using route 21, but that defendant so unskilfully, negligently, carelessly, and improperly drove and-operated said motor truck that, as a direct and proximate result, the motor truck was brought into violent collision at said point of crossing, with plaintiff’s automobile, whereby plaintiff was injured and his automobile destroyed. The second count differs from the first in that it avers the defendant caused the collision by failure to restrict the speed of the motor truck to a reasonable rate in view of the heavy traffic at the intersection, and drove the truck at a high and unreasonable rate of speed across said route 21. The third count avers failure to bring the motor truck to a full stop before proceeding on or across said route 21 as required by law, resulting in the collision and consequent injuries. The fourth count charges wilful and wanton misconduct in the operation of the motor truck and that the same caused the collision and damage in question. This appeal is from a judgment rendered upon a verdict in favor of defendant.

According to the evidence on behalf of the plaintiff, he was driving in a northwesterly direction on State Highway No. 21 and was following a car about 100 feet ahead of him. Both ears were traveling about the rate of 30 miles an hour, and when plaintiff was approximately 300 feet southeast of the crossing, he observed defendant’s truck approaching the crossing from the north “at a pretty good clip”; that when the truck was about 125 feet north of the crossing, it started to slow up and plaintiff continued traveling around 30 miles an hour. Plaintiff turned his head to the left and looked down the north and south road, but observed nothing coming from that direction. He looked again at the car ahead of him, and discovered the truck approaching the crossing at a rate of speed greater than that of his own car, which was then only about 150 feet from the crossing. In attempting to avoid a collision he swung his car to the left, put his foot on the accelerator and went off the concrete to the left. Just as his car went off the slab and while it was about the middle of the north and south road, the truck ran into his car, striking it at the front door. Both cars were ditched, and the front end of the truck was imbedded in his car.

The operator of the truck testified that he did not stop at the crossing before going onto the concrete road, but reduced his speed to two miles per hour, and was traveling at that rate with the brakes set when the collision occurred; that the front wheel of plaintiff’s car ran into the front of his truck, tearing off the front bumper and radiator, and bending the frame to the right at an angle of 45 degrees.

Section 33 of the Motor Vehicles Act, Cahill’s St. ch. 95a, jf 34, provides: “Motor vehicles entering upon or crossing

“1. A highway which has been designated by law as one of Routes 1 to 46 inclusive, in the Act selecting such routes for improvement by the State and upon which has been constructed a durable hard-surfaced road; or . . . shall come to a full stop as near the right-of-way line as possible before driving on the paved portion and regardless of direction, shall give the right-of-way to vehicles upon said highway.” Under the provisions of this section, no one has a right to cross a hard road, until he has stopped and ascertained that the way is clear for him. Cars on any road designated by this section, no matter from which direction they are coming, have the right of way over cars on intersecting roads.

The driver of the truck not only failed to stop before attempting to cross the paved road, but the evidence strongly tends to show that he attempted to cross it at a high rate of speed, under circumstances which he should have known would likely cause a collision. The physical facts conflict with his testimony as to his speed. If the truck had been traveling at a rate of two miles an hour, he could have stopped it in a foot or two and he so testified.

Plaintiff complains of the court’s refusal to give" refused.instruction No. 1 on wilful and wanton misconduct. No instruction was given on that issue. When the case was submitted to the jury, the fourth count was in the declaration, and if there was any evidence fairly tending to support that count, the instruction should have been given. If there was no such evidence, then the fourth count should have been withdrawn from the consideration of the jury. The evidence shows that there was a clear view of the crossing from both north and south. The driver of the truck saw plaintiff approaching the crossing in ample time to have stopped his truck before attempting to cross the pavement. The law says he should stop, yet he failed to do it. The evidence indicates that the truck came onto the pavement at a high rate of speed and without regard to the plaintiff’s rights or safety. To constitute wilful and wanton misconduct, it is not always necessary to prove that the defendant was actuated by ill-will toward the plaintiff. An entire absence of care for the life, person, or property of others, if such as exhibits indifference to consequences, makes a case of constructive or legal wilfulness. (Heidenreich v. Bremner, 260 Ill. 439.) To the same effect are the cases of Neice v. Chicago & A. R. Co., 254 Ill. 595; East St. Louis Connecting Ry. Co. v. O’Hara, 150 Ill. 580; Giles v. Peoria Ry. Co., 153 Ill. App. 625; Lund v. Osborne, 200 Ill. App. 457; Brown v. Illinois Terminal Co., 319 Ill. 326; Bernier v. Illinois Cent. R. Co., 296 Ill. 464.

It is a matter of common knowledge that paved State routes are heavily traveled. The general use by the public of a highway, so as to create a probability of the presence of people, requires the exercise of a higher degree of care in approaching such places, than is required at places less frequently traveled (Heidenreich v. Bremner, supra), and might make an act which would otherwise be merely negligent so reckless as to indicate a disregard for life or a general disposition to do injury. (Neice v. Chicago & A. R. Co., supra; Wabash R. Co. v. Jones, 163 Ill. 167.)

Under the evidence in this case, it was a question for the jury to say whether or not the truck driver was guilty of wilful and wanton misconduct in driving onto the slab directly in the path of a rapidly approaching car which by statute had the right of way. Where there is any evidence in the record fairly tending to show such gross want of care as to indicate a wilful disregard of consequences or a willingness to inflict injury, then it is a question to be determined by the jury whether or not the negligent conduct of the defendant amounted to wantonness and wilfulness. (Walldren Express & Van Co. v. Krug, 291 Ill. 472; Bremer v. Lake Erie & W. R. Co., 318 Ill. 11.) A trial court should never take a case from the jury or direct a verdict for the defendant where to do so is to determine the weight of the plaintiff’s evidence. The court is limited strictly to determine whether or not there is any evidence fairly tending to prove the facts alleged. (Kinsey v. Zimmerman, 329 Ill. 75; Mirich v. T. J. Forschner Contracting Co., 312 Ill. 343.) In view of the state of the record, we think the question of whether or not the collision was the result of wilful and wanton misconduct should have been submitted to the jury under proper instructions, and we see no substantial defect in the refused instruction.

Defendant’s sixth, seventh, eighth, ninth, and tenth instructions ignored the issue of wilful misconduct. They told the jury that contributory negligence on the part of the plaintiff was a complete defense. Contributory negligence is no defense or excuse for wilful and wanton misconduct on the part of a defendant. (Heidenreich v. Bremner, supra; Lake Shore & M. S. Ry. Co. v. Bodemer, 139 Ill. 596; Wabash R. Co. v. Speer, 156 Ill. 244.) Although an instruction asked by a defendant may be proper under a particular count or counts, it should be refused if it is not good as to certain other counts and its scope is not limited to the counts as to which it is proper. (Dudley v. Peoria Ry. Co., 153 Ill. App. 619.) None of defendant’s instructions were so limited. Defendant’s ninth instruction is directly contradictory to the provisions of section 33 of the Motor Vehicles Act, Cahill’s St. ch. 95a, If 34, and directs a verdict. It told the jury that if they believe from the evidence that a reasonable man should have been able to see defendant’s truck "within time to stop and avoid the accident under the prevailing conditions, they will find the plaintiff guilty of contributory negligence and the defendant not guilty. Defendant’s instructions six to ten inclusive were erroneous.

■ The judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded'.


author: Mr. Presiding Justice Barry

text:
    The County of Clay, Appellant, v. G. W. Curtright, Appellee.
    Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.
    Clarence Smith, State’s Attorney, for appellant.
    H. D. McCollum, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee served The County of Clay as a special deputy sheriff from July 29 to September 17, 1922, at Flora, Illinois, during the railroad strike. His claim was not paid and on August 2, 1927, he sued Clay County and recovered a judgment by default for $150. The summons was served upon The County of Clay by leaving a copy thereof with the clerk of the county board as provided by section 9 of the Practice Act, Cahill’s St. ch. 110, Í 9. The judgment was rendered September 13, 1927, and payment was refused.

'Before the next term of court, counsel for appellee discovered that the suit should have been brought against The County of Clay instead of Clay County. He served notice upon the State’s attorney that he would ask the court, at its next term, for leave to amend the declaration, summons, etc., and move the court to amend the judgment so as to have it run against The County of Clay instead of Clay County. At the next term of court the motions were allowed and the amendments were made. Appellant does not question the right of appellee to recover, but insists that the court was without jurisdiction to amend the judgment, etc., at a subsequent term.

At common law a county could neither sue nor be sued. It is only by virtue of statutory or constitutional authority that an action may be maintained either by or against it. A suit by or against a county must be in its corporate name, that is, the name prescribed in the statute or constitution by which it may sue or be sued. 11 Cyc. Pl. & Prac. 607; 15 C. J. 665; County of Rock Island v. Steele, 31 Ill. 543; County of Schuyler v. County of Mercer, 9 Ill. 20; Board of Com’rs of Phillips County v. Churning (Colo. App.), 35 Pac. 918; Muskogee County v. Lanning S McRoterts, 51 Okla. 343, 151 Pac. 1054; Arnett v. Decatur, 75 Ga. 782.

In County of Rock Island v. Steele, 31 Ill. 543, the county was not sued in its corporate name and the court held that the proceedings were unauthorized by law; that a county has not the capacity to be sued except it is conferred by special statute; that when that capacity is so conferred, the mode pointed out by the statute must be strictly pursued; that if sued by any other than its corporate name as fixed by the statute the proceedings are unauthorized and there is no necessity for a plea of misnomer, as in ordinary cases.

Where a county was not sued by its corporate name, the judgment was reversed without remanding. County of Bock Island v. Steele, supra. In a similar case the judgment was held to be a nullity. Board of Com’rs of Phillips County v. Churning, supra.

It necessarily follows that the original judgment in the case at bar was not in any way binding upon The County of Clay. We are of the opinion that the court at a subsequent term had no power or authority to breathe into that judgment the breath of life. The amendment was not as to a matter of form, but if allowed to stand it would have the effect of making a valid judgment out of one that had no binding force or effect against The County of Clay. At the time the amendment was made the statute of limitations had run against appellee.

Our first impression was that it was simply a case of misnomer and that the action of the court could be sustained. In view of the authorities above cited, however, we are of the opinion that the judgment must be reversed. The same question is involved in Term No. 10, The County of Clay v. Jackson, and in Term No. 11, The County of Clay v. Landreth, and the judgment in each of the three cases is reversed.

Beversed.


text:
    Annie M. Peters, Administratrix of the Estate of Albert A. Sherman, Deceased, Appellant, v. Ella Woods, Appellee.
    Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.
    William A. Mills, for appellant.
    Holt & Holt, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellant filed her bill in chancery in which she averred that her intestate, in his lifetime and at the time of his death, was the owner of $450 in the First National Bank of Sandoval, Illinois, evidenced by two certificates of deposit; that on September 26, 1927, appellee obtained possession of the said certificates; that the said intestate was not of sound mind and body at that time and was easily influenced by appellee to deliver to her the said certificates; that she had the same transferred to her name in said bank; that in procuring possession of the said certificates appellee employed undue influence and fraud upon the intestate who was then of unsound mind and easily influenced and that he did not know what he was doing, etc.

She further averred that the said sum of money and the interest thereon are the assets of the estate of her intestate, etc. In her answer to the bill, appellee admitted that the deceased was possessed of the said certificates of deposit on September 26, 1927, and that he gave and transferred the same to her and that she is the lawful owner thereof. She also denied that the intestate was of unsound mind at the time of the said gift and transfer, and denied that there was any fraud or undue influence, etc. Upon the hearing before the chancellor the bill was dismissed for want of equity at appellant’s costs.

Appellee claims that the deceased made her a gift of the certificates in question. The law never presumes a gift, and the burden is on donee to prove by clear and convincing evidence the essential facts of a gift, which are the delivery of the property by the donor to the donee with intent to pass the title. Bolton, v. Bolton, 306 Ill. 473. To constitute a valid gift inter vivos of a chose in. action there must be a delivery of the paper with intent to transfer the title. The burden of proof of the gift is on the donee to prove all facts essential to a valid gift. The essential facts are the delivery of the property by the donor to the donee with intent to pass the title, and the great weight of authority is that the proof to sustain the gift must be clear and convincing. Rothwell v. Taylor, 303 Ill. 226.

While an equitable interest in negotiable instruments payable to order may be acquired by gift without indorsement by the payee, the mere possession of such paper is not alone evidence of title, either legal or equitable, in the possessor, but the burden of proof is on the possessor to prove his equitable title by showing a delivery to him with intent to pass, the title. Collins v. Ogden, 323 Ill. 594; Elvin v. Wuchetich, 326 Ill. 285.

The cashier of the said First National Bank testified that appellee brought the two certificates of deposit to his bank and that she wrote the name of the deceased and her own name on the back of each of them and that he then issued to her a new certificate for the amount of the two old ones. He also said, “As I recall, Miss Woods mentioned the fact that Albert Sherman gave her these certificates, and I exchanged it on her endorsement on the old certificates.” ■

A sister of the deceased testified that she asked appellee if she was using the deceased’s money in caring for him; that the witness told her that she had heard it said that she was not and the witness asked her if she was and she said, “No.” That witness told appellee she thought she ought to use the money of the deceased instead of her own and that appellee said she put the money in the bank for him to use when he got well. That was why she was not using it. She wanted him to use it when he got well. The deceased was living with appellee and was being cared for by her at the time the certificates of deposit were taken to the bank and exchanged for the new certificate. The deceased continued to live with appellee from August or September, 1927, until his death in January, 1928.

Appellee denied that she had the conversation with the sister of the deceased in the words as testified to by her. She admitted, however, that she said to the sister that she would not spend the money and if he got well she would give it back to him.

The foregoing was all of the evidence in any way bearing upon the making of the alleged gift. It seems to us that appellee has utterly failed to show by clear and convincing evidence that the certificates of deposit were delivered to her by the deceased with intent to transfer the title to the same to her.

Mere proof of delivery may tend to show intent to transfer title, but where the donee lives with the donor, proof of the delivery of unindorsed negotiable paper to the donee can be given but little consideration on the question of intent. Rothwell v. Taylor, supra. In that case the court said: “Must it be presumed such delivery was made with intent to pass title to plaintiff and for no other purpose? There is no proof whatever of the intent with which the delivery was made, and we find no case, under circumstances similar to those of this case, where the intent will be inferred frotn the fact, alone, of delivery.” The testimony of appellee to the effect that she said she would not spend the money and if the deceased got well she would give it back to him tends to negative the idea that the certificates were delivered to her with the intent to transfer the title to her.

We are of the opinion that appellee failed to prove that the deceased made her a gift of the certificates and the decree is reversed and the cause remanded with directions to enter a decree in accordance with the prayer of the bill.

Reversed and remanded with directions.


text:
    Servias Sondag, Jr., Appellant, v. David E. Keefe and Tillie Keefe, Appellees.
    Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.
    Maurice V. Joyce, for appellant.
    Pope & Driemeyer, for appellees.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellant sued to recover for a breach of a covenant against incumbrances. Appellees filed certain pleas to which demurrers were interposed. The court sustained demurrers to some of the pleas and overruled those to the second, sixth, seventh and additional pleas. Appellant elected to stand by his demurrer to those pleas and the court entered judgment in bar of the action and for costs.

The second, sixth and additional pleas present the same defense and are substantially as follows: They aver that appellant employed one D. L. Morgan as his agent to sell certain real estate in East St. Louis; that appellee, David E. Keefe, was the owner of the real estate described in the declaration; that said Morgan, on March 1, 1925, proposed to sell appellant’s property to the said David E. Keefe for $26,000, and to take as part payment therefor the real estate of the said Keefe at the sum of $6,000; that said Morgan further proposed that he would secure certificates of title from the St. Clair Guaranty & Title Company at Belleville to both parcels of real estate and that the deal should be completed within sixty days; that if the certificate of title showed a merchantable title to the respective parcels of land deeds should be made and delivered.

The pleas further averred that the said Morgan secured a certificate of title covering the property owned by the said Keefe from the said Guaranty & Title Company; that he told the said Keefe that he had examined the certificate and that it showed that Keefe’s property was free and clear of all liens, and that the title as shown by the said certificate was satisfactory to appellant; that the said Keefe examined the said certificate of title and that it showed that his property was free and clear of all liens; that appellees believed that the said certificate of title showed the true condition of the title of Keefe’s property and that appellees had no knowledge of any lien for unpaid taxes or special assessments and that relying upon the statement of the said Morgan and upon the certificate of title aforesaid, the said Keefe then and there agreed to purchase appellant’s property upon the terms and conditions above set forth and that on April 23, 1925, appellees executed the deed set out in the declaration and paid appellant the balance of the purchase price and received a deed for appellant’s property; that the said Keefe would not have closed the deal except for the certificate of title so furnished to him by Morgan, and the statement of said Morgan, as agent of appellant, that the title shown by the certificate would be satisfactory to appellant; that by reason of the premises aforesaid appellant is estopped and precluded from claiming damages, etc.

We are unable to discover anything in the pleas that would amount to an estoppel. They clearly show that appellant wanted a good merchantable title; that the certificate of title showed that the property of Mr. Keefe was free and clear of all incumbrances; that appellant would be satisfied with such a title and that Mr. Keefe was willing to give him a title free and clear of all incumbrances.

The obligation of a covenant does not depend upon the knowledge, or want of knowledge, of the parties to a deed. Lloyd v. Quimby, 5 Ohio St. 262. The fact that a purchaser may have actual knowledge of an incumbrance does not relieve the vendor of his liability upon the covenants contained in his deed. Such knowledge on the part of the purchaser does not operate as a release or discharge of a covenant. Beach v. Miller, 51 Ill. 206; Weiss v. Binnian, 178 Ill. 241.

The burden is on a grantor who seeks to escape from a liability on his covenant to show that his grantee accepted the title notwithstanding the defect, and Qwm onere. New York & Cleveland Gas Coal Co. v. Graham, 226 Pa. 348, 75 Atl. 657.

The pleas do not even attempt to show that appellant agreed to take the title subject to taxes and special assessments. On the contrary they show that appellant wanted, and appellee was willing to give him, a title free and clear of all incumbrances. The deed &s executed was in accordance with the agreement of the parties insofar as the same is disclosed by the pleas.

The seventh plea sets up that there was a universal custom prevailing in East St. Louis that where a person sold real estate with a condition that a certificate of title would be furnished the purchaser and such a certificate was furnished and it subsequently turned out that the certificate was incorrect, the purchaser must bear the burden of the error and look to the abstracter for redress, etc. The deed set out in the declaration is a statutory warranty deed. The statute provides that such a deed shall be deemed and held a conveyance in fee simple with certain covenants, including a covenant that the premises were then free from all incumbrances, and that such covenants shall be as obligatory upon the grantor as if they were written at length in such deed. The law is well settled that a usage or custom cannot be proven for the purpose of evading the express provisions of a contract or a statute. That proposition is so well settled that it is unnecessary to cite authorities.

While the sufficiency of the fourth plea is not presented on this appeal, yet we deem it best to refer to it. That plea is a separate plea by the wife of David E. Keefe and is to the effect that she never had any interest in the property conveyed to appellant except an inchoate right of dower, etc. A wife who joins in the conveyance of her husband’s property for the purpose of releasing her dower is not liable upon the covenants contained in the deed. Center v. Elgin City Banking Co., 185 Ill. 534; Warner v. Flack, 278 Ill. 303.

We are of the opinion that the second, sixth, seventh and additional pleas presented no defense to the action and the court erred in overruling the demurrers thereto. The judgment is reversed and the cause remanded with directions to sustain the demurrers.

Reversed and remanded with directions,