author: Mb. Presiding Justice Grow

text:
    Eaton State Bank, Appellee, v. Andrew Flesher and First National Bank of Moweaqua, Appellants.
    Gen. No. 8,028.
    1. Chattel mortgages — when not affected hy error in recording. After a mortgagee has complied with all the requirements of the Chattel Mortgage Law preliminary to filing and has left his mortgage with the recorder to file, even though the recorder fails to correctly record it, from that date it will be considered of record to protect mortgagee ’s lien under Cahill’s St. eh. 95, It 4.
    2. Chattel mortgages — when not invalidated hy erroneous record. The mistake of a recorder in writing in the date, instead of the due date of a note, when he recorded a chattel mortgage, will not prevent the chattel mortgage as thus recorded from being a valid lien against the claim of a judgment creditor of the mortgagor.
    Appeal by defendants from the Circuit Court of Christian county; the Hon. William B. Wright, Judge, presiding. Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed February 28, 1927.
    Hogan & Reese and S. S. Clapper, for appellants.
    W. B. McBride, for appellee.
   Mb. Presiding Justice Grow

delivered the opinion of the court.

Suit in replevin was begun by appellee to recover from Flesher as sheriff certain property seized by him under an execution upon a judgment against T. F. Curry. Declaration was in the cepit and detinet with a count in trover. Pleas were filed denying the taking and the detention. A special plea was filed averring that a judgment was rendered in favor of the First National Bank of Moweaqua and against T. F. Curry for the sum of $1,686.85, and for costs and that an execution was issued upon said judgment and delivered to the defendant Andrew Flesher as sheriff and that by virtue thereof he levied upon the property described in the affidavit and writ of replevin, and that it was the property of Curry and not of Baton State Bank. Upon a trial before the court without a jury, the court found the issues for the plaintiff in trover upon a stipulation of facts, and assessed the plaintiff’s damages at $1,486.47, and for costs against defendant First National Bank, and defendants appealed to this court.

Whatever interest plaintiff had in the property seized by the sheriff was derived through a chattel mortgage executed by Curry with due formality. It is not contended that fraud in fact or as a matter of law affects the rights of the parties. The chattel mortgage conveying to plaintiff the property in controversy was made to secure two notes payable to it. Both notes were for the sum of $1,366 and both dated February 28, 1925, the date of the mortgage. One of the notes was due and payable on August 28,1925, and the other was due and payable by its terms February 28, 1926. The chattel mortgage, duly executed and acknowledged, recited that the notes bore date and matured as above stated. The mortgage bore date February 28 and was acknowledged before a justice of the peace March 4. It was filed for record in the recorder’s office March 7,1925. As recorded, the second note is described as being due February 28, 1925.

The title of plaintiff (appellee) resting upon the chattel mortgage, the second note due under it being erroneously described of record as being due February 28, 1925, instead of 1926, shall it fail through the negligence or misprision of the recorder? That is the only question presented by the record in this case.

An examination of the Chattel Mortgage Act discloses that such mortgages require for validity and legal effect certain acts to be done by the parties to the transaction. By section 1 [Cahill’s St. ch. 95, ft 1] such mortgage shall be invalid as against the rights and interests of third persons unless possession shall be delivered to and remain with the grantee, or the instrument shall provide for the possession of the property to remain with the grantor and the instrument is recorded and acknowledged as in the act directed; “and every such instrument shall, for the purposes of this Act, be deemed a chattel mortgage.” Section 2 [Cahill’s St. ch. 95, U 2] requires such instrument to be acknowledged before a justice of the peace of the county in which the mortgagor resides, or before certain other officers specified; and that the acknowledgment may be made either by the mortgagor or a person duly authorized by the mortgagor to act as his attorney in fact. The form of certificate of acknowledgment is prescribed, and in this case was followed, and the proper entry of acknowledgment made in the justice’s docket. By section 4 [Cahill’s St. ch. 95, [f 4]: ‘ ‘ Such mortgage * * * or other conveyance of personal property acknowledged as provided in this Act shall be admitted to record by the recorder of the county in which the mortgagor shall reside at the time when the instrument is executed and recorded,” and shall,_ thereupon, if bona fide, be good and valid from the time it is filed for record until 90 days after the maturity of the entire debt or obligation, or the extension thereof.as provided by the act, with provisions for extending the maturity of the mortgage by compliance with the requirements by the mortgagor and mortgagee. Sections 8, 9, and 10 [Cahill’s St. ch. 95, H 9, 10 and 11] provide for release' of such mortgages by steps to be taken by the parties to the mortgage, with penalties for failure to comply with the requirements for release.

If the rights of the respective parties to this transaction are governed by their conduct, and if their conduct was in harmony with the law regulating it, there can be no basis for the contention that the recorder’s misconduct.affected their rights in any way. To render the mortgage valid as against third parties, the mortgagor was required to and did sign and acknowledge it before a justice of the peace. He complied with these requirements. The justice made the certificate of acknowledgment in due form and made the entry without error on his docket. It was delivered to the mortgagee who delivered it to the recorder for record. By that act it became and was filed and was from that time effectual as a chattel mortgage. That was the result of the conduct of the parties to the transaction because the statute so declares. The entire transaction is statutory and the mortgagee and mortgagor complied with it in every particular.

" While the statute declares the lien of the mortgage shall be effectual from the date of its filing, and the recorder is required to record it, yet when the mortgagee has complied with" the statute so far. as lies in his power, the mortgage is regarded as recorded from the time it was deposited for that purpose. The mortgage is not affected by the errors or misprisions of the recording officer. 11 C. J. 534, § 224. To the last proposition decisions from several States are cited, including Pease v. Fish Furniture Co., 176 Ill. 220; Jesse French Piano & Organ Co. v. Meehan, 84 Ill. App. 262; Hamilton v. Seegar, 75 Ill. App. 599; Wolf v. Hunter, 10 Ill. App. 32.

In the notes to the section supra are many illustrations of the application of the rule that the mortgagee is not to be prejudiced by the mistake of the recording officer. The cases cited so far as accessible have been examined and support appellee’s contention here. Pease v. Fish Furniture Co., 176 Ill. 223, decided in 1898, sufficiently illustrates the reason for the rule. In that case the error occurred in the action of the justice of the peace taking the acknowledgment and making the entry in his docket. The entry was erroneous as to the name of the mortgagee, the amount of the indebtedness, and the description of the property mortgaged. An execution creditor, as in this case, was attacking the title of the mortgagee. After discussing the object of the Chattel Mortgage Act and the purpose and effect of requiring the acknowledgment before an entry by the justice in his docket, it is said:

“The mortgages were drawn in proper form, duly acknowledged as required by statute and placed on record, and the mere fact that the justice failed to make a proper entry on his docket could not invalidate the mortgages. The mortgagee has no control over the justice in regard to the entry to be made on his docket, and should not be made to suffer on account of his incompetency or mistakes. This court has held in at least three cases, (Cook v. Hall, 1 Gilm. 575, Merrick v. Wallace, 19 Ill. 486, and Nattinger v. Ware, 41 id. 245) that the failure of the recorder of deeds properly to record a deed will not invadidate the title of the grantee who has done all that is required of him by law in leaving the deed for record. The principle decided in those cases applies here. The mortgagee did all that could be required on its part, and it should not be prejudiced by the mere failure of the justice of the peace to make a proper entry on his docket. ’’

Other cases cited by counsel for appellee, with that quoted, support the rule. A very pertinent statement of the reasons for the rule is contained in note 9 (a) 11 C. J. 535:

“The neglect of clerical duties by the recorder * * * does not affect the mortgagee. These are matters over which he has no control. * * * The clerk is not his agent or servant for whose negligence he is responsible, but he is the officer designated by law to perform the duties of receiving, filing and recording the instrument. It would be a harsh rule to punish an individual, who in the prosecution of a right, has done everything that the law required him to do, for omission by a public officer to comply with forms prescribed to him as his duty.” Case & Co. v. Hargadine, 43 Ark. 144, 148.

The propositions of law supporting the judgment as held by the circuit judge trying the case are in harmony with the principles we hold to be applicable to the facts and the judgment is therefore affirmed.

Affirmed. '


source: Caselaw Access Project

author: Mr. Presiding Justice Crow

license: Public Domain

text:
    Morris H. Beard, Appellee, v. Baltimore & Ohio Railroad Company, Appellant.
    Gen. No. 8,037.
    1. Master and servant — what appliances are not within the Safety Appliance Act. A telephone lineman’s spurs and belt are not within the Safety Appliance Act, and the defense of assumed risk is, therefore, available in an action, under the Federal Employers’ Liability Act, by a lineman to recover for injuries caused by the use of inadequate spurs and failure of the carrier to supply a belt.
    2. Master and servant — when .order to do hazardous worh does not relieve of assumed rislc. In a telephone lineman’s action for personal injury damages, the plaintiff is not relieved from the defense of assumed risk because his employer ordered him to do hazardous emergency work, where his employer was not present while the work was being done, did not order him to face a specific emergency but left all to his own experience.
    3. Master and servant — when lineman assumes rish of inadequate spurs. An experienced telephone lineman cannot recover damages for personal injuries incurred while carrying out his employer’s orders to repair ice broken wires without proper climbing spurs or belt, for he assumed the risk by doing the work under his own ‘direction without complaining beforehand of his equipment.

      Appeal by defendant from the Pana City Court of Christian county; the Hon. John W. Peeihs, Judge, presiding. Heard in this court at the October term, 1926.
    Reversed with a finding of fact.
    Opinion filed February 28, 1927.
    Graham & Graham and H. B. Hershey, for appellant.
    L. G. Griffith and McDavid & Monroe, for appellee.
   Mr. Presiding Justice Crow

delivered the opinion of the court.

Appellee and appellant will hereafter generally be designated as plaintiff and defendant respectively. Some fault is found by plaintiff with the defendant’s statement of the case in its brief and an additional statement is made in the brief of plaintiff. For the purpose of review we adopt substantially the statement made by plaintiff, it being less concise but including elements of the case proper to be noticed in determining questions presented for review.

The declaration consists of one count and alleges that on December 31, 1924, defendant was a common carrier engaged in interstate commerce, and that its road extended through Christian county, Illinois; that as an adjunct of said railroad it maintained and used a system of telegraph and telephone wires suspended from poles; that on the date and at the place aforesaid the plaintiff was in the employ of the defendant in its telephone maintenance department; that, as a result of a rain and sleet storm, the signal wires and poles upon which they were suspended became deeply encrusted with ice to such an extent that many wires were broken and had fallen to the ground; that plaintiff was ordered by an agent of the defendant to go out along the line of the railroad and repair wires and fasten them to the poles, which he, as an employee of defendant, undertook to do; that it became and was the duty of the defendant to furnish plaintiff an assistant and furnish him with spurs long and sharp enough to go through the coating of ice on said poles when the plaintiff should climb the same, in his work, so as to support the plaintiff and prevent him from falling; that it was the duty of the defendant to exercise due care for the safety of plaintiff, to provide him with a belt or sling with suitable buckles and attachments by which he could support himself at the top of the pole while engaged in work; that defendant failed to furnish spurs sufficiently long and sharp enough to penetrate the ice on the poles, and failed to furnish a suitable belt to uphold the plaintiff while he was working on the poles, and while plaintiff, in the exercise of due care for his own safety, was engaged in the business of the defendant at the top of a pole in repairing wires the spurs provided plaintiff, by reason of being too short to penetrate the ice on the pole, slipped and gave way, and the plaintiff, not having been provided with any suitable belt for a support, through the negligence of the defendant, then and there fell from said pole to the ground and was injured. The general issue only was filed and from this fact it is urged that some questions of law argued by defendant are not open for consideration.

Beginning December 18, 1924, a severe storm prevailed attended with rain, turning to coating of ice on trees, telephone and telegraph wires from Pana, Illinois, to points westward. The result was that wires and poles on which they were carried became covered with ice, and telephonic and telegraphic communications, as well as all railroad traffic, were seriously obstructed. Plaintiff was an experienced lineman and telephone maintainer. He was 37 years old and entered the employ of defendant January 5, 1918, and worked continuously for it until he received the injury complained of. His work on the line was from Flora to Beardstown, to repair all wires at the time affected by the sleet storm. He went out in obedience to the direction of Pritchard, a trip despatcher at Washington, Indiana. Pritchard told him the wires were out from Pana west, and to repair them. He told Pritchard he would go, and waited until the train came and went to work. He received no belt, though promised one, he says, by a division operator of defendant three years before. He asked only once. The answer to that request was he would try to get one. The equipment the defendant furnished was a pair of spurs, a pair of “posts” to pull wire, large pliers and conductors. The spurs were used for climbing poles. They fit on the bottom of the foot and leg and fasten with straps. The spur is on the side next to the bottom of the foot —“the inside of the foot.” As to his mode of work, he climbed the poles by sticking the spurs in them. To hold himself on the pole to work, he stuck the spur fastened on his left foot through the ice into the pole, putting his right leg around it to hold him. The injury occurred when he removed the leg from around the pole and the “left leg gave way right now, immediately.” He testified that he could not tell whether the spur went through the ice or not. The ice was about two inches thick on the poles he says, and the wires were “awfully heavy.” When he struck the ground he lit on his feet with the left leg folded under him. He “scooted” into the ditch at the side of the road and lay there five minutes before he got up. He continued to work until January 12, and had no treatment until then. In performance of his work he was alone and pursued his own course as to what to do and the maimer of doing it. He had worked at the same employment about seven years under the same immediate superior. The points urged for reversal are: Refusing to direct a verdict; assumption of risk; improper conduct of counsel for plaintiff at the trial; giving improper instructions for plaintiff; refusing proper instructions offered for defendant; admitting improper evidence by the physician testifying for plaintiff.

Counsel have assumed, as it seems to us, that the action is one grounded upon the Federal Employers’ Liability Act [Cahill’s St. ch. 124, If 321 el seq.]. The declaration avers that “defendant was a common carrier engaged in interstate commerce and as an adjunct of said railroad it maintained and used a system of telegraph and telephone wires suspended from poles,” followed by an averment that plaintiff was employed in the telephone maintenance department. G-ranting that the action is well laid upon that act, no advantage thereby accrues to plaintiff. It is not contended by defendant that plaintiff was guilty of contributory negligence. It is contended that he assumed the risk of danger attending his work under the circumstances shown by the evidence and those circumstances are not a matter of controversy. If the action is predicated on the Federal Employers ’ Liability Act, that defense is available because section 4 [Cahill’s St. ch 114, If 324] provides that such employee shall not be held to have assumed the risks of his employment in any case where the injury is occasioned by the violation by such common carrier of any statute enacted for the safety of employees. This provision is found in chapter 2, title 64, Common Carriers (Barnes’ Federal Code). The basis for the exception is found in chapter 1 of that title, which relates only to safety appliances upon engines, cars and other equipment of trains, boats and similar instruments of commerce. The facts of this case do not bring it under the Safety Appliance Act. The doctrine of assumed risk is not therefore affected by the congressional enactment. Seaboard Air Line Ry. v. Horton, 233 U. S. 492, 58 L. Ed. 1062.

In considering the question of' assumed risk, it is pertinent to notice that plaintiff was directed by.his superior to go out on the line and relieve the poles and wires of the ice condition then prevailing. He received no specific directions. Of mature years, with 20 years’ experience in that sort of work, he took the implements that were at the depot for that' purpose and went on the first train, getting off at the first place where there seemed to be ice trouble. Those implements he had used before and knew their condition as well if not better than his superior. He knew well the condition he was encountering in performing the work, and that the master had not created, nor contributed .to, the conditions. He now disclaims any contention that the attachments used for climbing the ice-covered poles were defective. His complaint of the master as averred in the declaration, and as contended at the trial, and in this court, is that the appliances were not sufficient to enable him to do safely the work he was assigned to, and which was in the line of his employment.

Before considering the question of assumption of the risk of injury, it is well to notice the oft repeated statement that plaintiff was directed or ordered by his superiors to do the work. That fact is admitted. But we think his case is not aided by it. The rule that where the master orders the servant to do something hazardous in the course of his employment, and while doing it he is protected by the order, applies only where the master orders the servant to do something confronted with an emergency attended with hazard, he is specifically ordered to do it, he is relieved of the consequences of any assumption of risk, unless the danger be so imminent that a reasonably prudent person would not undertake it. But the principle applies only where the master is present while work is being done and gives the order to do specific work attended with danger or to work in a specific manner. See Illinois Steel Co. v. Schymanowski, 162 Ill. 447, 459 et. seq., where the principle of responsibility is applied and reasons for it given.

But that salutary rule founded on the master’s presumed superior knowledge of conditions and of danger does not apply to plaintiff. He does not come within the reason of the rule, and therefore is not within the rule. If the pole he was required to climb to adjust the wires was covered with ice, and if to climb it was hazardous or extra-hazardous, he was the only one that knew it. No one was present urging him to it. He knew the ice conditions. It was that condition he was sent to correct. He was left to the exercise of his own judgment as to the manner in which he would accomplish it. As to that, he was the master. If the ice was so thick on the pole as to render the work dangerous, and if the spur which he used to climb it was inadequate, he knew it. If in doubt as to its being safe, he was bound to act with care and circumspection commensurate with the danger confronting him. Plaintiff disclaims any defect in the climbers. He insists they were insufficient to enable him to perform his work safely. He claims they were deficient. He makes a distinction where there is no material nor practical difference. The alleged deficiency was that the spurs were not long enough to penetrate the ice, but he knew that and uncomplainingly used them, though he could have ascertained before attempting to climb the pole whether they were adequate. There was nothing about the employment or the peril he did not actually know or could not readily ascertain.

The decided cases support the insistence of defendant that on account of the knowledge and situation of plaintiff he assumed the risk of the employment and for that reason cannot recover damages for his injuries. Ross v. Chicago, R. I. & P. Ry. Co., 243 Ill. 440; DeFrates v. Chicago U. Tel. Co., 243 Ill. 356;

McCormick Harvesting Mach. Co. v. Zakzewski, 220 Ill. 522; Armour v. Brazeau, 191 Ill. 117.

In the Ross case the court says (444-445):

“The rule of law in reference to assumed risk has been often stated by this court, and the doctrine applies as well to those risks which arise, and become known to the servant during the service as to those in contemplation at the time of the original hiring. (2 Cooley on Torts, —3rd ed. — 1044.) The usual and ordinary dangers incident to the service are assumed by the contract of hiring. One entering into an employment which is necessarily more or less dangerous is held to take those dangers into consideration in making his contract to work, and for an injury received from such dangers the servant cannot recover. ’ ’

In the DeFrates case it is held that a lineman of 3-years ’ experience was bound to know whether a rotten pole could safely be climbed, and reversed judgment for plaintiff, an injured workman, without remandment. In the Zakzewski case, the court held that the danger arising from lumber coated with ice in the wintertime is one of the ordinary risks of the employment of one experienced in the work in a lumberyard; that a servant assumed not only the ordinary risks incident to his employment, but also all dangers which are obvious and apparent; and if he voluntarily enters, or continues, in the service, knowing, or having means of knowing its dangers, he is deemed to have assumed the risks and to have waived all claims against the master for damages in case of personal injury resulting from such dangers. In the Armour case, an action to recover on account of a defective scaffold, the trial court refused an instruction telling the jury that before the plaintiff could recover he must prove by a preponderance of the evidence (1) that the plank was insufficient, weak, or defective and that the accident happened as a result; (2) that the defendants had knowledge or notice of such insufficiency, or that they might have had notice thereof by the exercise of ordinary care; (3) that the plaintiff did not know of such insufficiency and that he had no means of knowledge thereof equal to that of the defendants; (4) and that he was in his relation to the accident in the exercise of ordinary care. Citing authorities, the court says:

“If a defect in an appliance is open and obvious, so that by the exercise, of ordinary care in the use of the appliance the employee will have knowledge of the defect, he is bound to take notice of the defect. He cannot assume a fact against his own knowledge, and assume that a defect open to his observation does not exist.”

Plaintiff in this case was in no position under any view of the facts and the law applicable to them successfully to charge defendant with the breach of any duty owing to him by it. Upon the facts stated by plaintiff there was nothing about the employment, the particular work in hand, the condition of the climbers, whatever it may be called, rendering them inadequate, that he did not know and from his experience was bound to appreciate. If he undertook to work without a belt, and if it was necessary to his safety, no one in the employment knew it better than he. As to it he assumed the risk for he continued in the work after being told three years before, as he says, by the man in charge over him, that he would try to get him one. The court erred in not directing a verdict for defendant. Other errors intervened but it is not necessary upon the state of the record to notice them.

The judgment of the city court of Pana is reversed.

Reversed with a finding of fact.

Finding of fact. We find as a fact that the injury to the plaintiff was caused by dangers attending his employment which were well known to him and that he assumed the risk of those dangers.


text:
    William Toland, Appellee, v. Hartford Fire Insurance Company, Appellant.
    Gen. No. 8,050.
    1. Insurance — what title m insured sufficient under policy. An insured ’s action to recover loss under a fire insurance policy cannot be defeated by a policy provision, intended to prevent risks beyond the insured’s interest, that the insured must have fee title to the insured property, where plaintiff had received thereon sufficient title for this purpose in a warranty deed from the life tenant of an estate which conveyance was under authority of a will giving discretion therefor.
    2. Insurance — effect of immaterial misstatements in proof of loss. Immaterial misstatements in a sworn proof of loss will not defeat a recovery on a fire insurance policy under a clause in the policy invalidating it in the event of any false swearing by the insured in connection with any matter relating to the insurance or the subject thereof.
    Appeal by defendant from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed February 28, 1927.
    Capps & Weaver, for appellant.
    Williams & Williams, for appellee.
   Mr. Presiding Justice Crow

delivered the opinion of the court.

There was trial and judgment for appellee, herein designated plaintiff, against appellant, designated herein as defendant, upon a fire insurance policy. The declaration consists of two counts. The first count declares specially on a fire insurance policy issued to appellee by appellant on the 8th day of April, 1925, alleged to cover the house and barn of appellee and the contents thereof in the principal sum of $4,000. The second is the common counts consolidated. To this declaration appellant filed the general issue and three special pleas. The first special plea alleges that the policy sued upon among other things provides: “This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto shall be void if the object of insurance be a building on ground not owned by the insured in fee simple.” It further alleges that $2,500 of the insurance provided for in said policy was upon buildings not owned by the insured in fee simple, and that it was not otherwise provided by agreement indorsed on said policy or added thereto, and that by the terms óf the contract sued upon the policy of the insured became and was void before the commencement of the suit. The second special plea set forth a provision of the policy as follows: ‘ ‘ This entire policy shall be void in case of any fraud or false swearing by the insured, touching any matter relating to this insurance or the subject matter thereof, whether before or after a loss.” It further alleges that plaintiff executed and submitted to the defendant his written and sworn statement of the property which he claimed was destroyed or damaged by the fire, and in said statement or proof of loss so sworn to by plaintiff there was included certain property which was not destroyed or damaged by said fire, and that in said sworn statement or proof of loss plaintiff did swear falsely as to the property that was destroyed and damaged by said fire, and that therefore the policy of insurance became and was void before the commencement of the suit.

The third special plea sets forth the same clause or contract as the second and avers that after the fire, and before the commencement of this suit, plaintiff executed and submitted to defendant his written and sworn statement of the property which he claimed was lost and damaged by the fire and owned by him and that in the statement or proof of loss so sworn to there was included certain property not owned by Mm, and that in said sworn statement plaintiff falsely swore that he owned certain property destroyed and damaged by the said fire and that, by the terms of the contract sued on, said policy of insurance became and was void before the commencement of the suit.

Upon the issues made the cause was tried by a jury which returned a verdict in favor of plaintiff for the sum of $3,750. Defendant’s motion for a new trial being overruled, judgment was entered on the verdict for damages and costs.

The policy of insurance was issued on the 8th day of April, 1925. Plaintiff did not reside on the premises at the time but resided with his mother nearby. Plaintiff had lived in the house three or four weeks before the fire which occurred July 6, 1925. It is not denied that the policy was issued nor that the fire occurred and burned the property claimed to have been lost. Two questions only are raised by the brief as grounds for reversal of the judgment.

The first is that the land on which the' residence and barn were located was not owned by plaintiff in fee simple. The case of Capps v. National Union Fire Ins. Co., 318 Ill. 350, is relied on. That case, following others in this State, holds that the provision will defeat a recovery on the policy for loss if the subject of insurance be a building on ground not owned by the insured in fee simple, if the condition is in the contract of insurance. (Crikelair v. Citizens’ Ins. Co., 168 Ill. 309; Hebner v. Palatine Ins. Co., 157 Ill. 144; Reaper City Ins. Co. v. Brennan, 58 Ill. 158.) In the Capps case, the insured was in possession under a contract to purchase the land, paying instalments. He had not kept up the instalments and had no deed to the land on which the insured property was located.

In this case the land on which the buildings were located was conveyed to plaintiff by Anna J. White by a statutory warranty deed dated November 7, 1921, duly acknowledged and recorded. The consideration was $4,500. After the description and preceding the clause releasing and waiving all rights under the Homestead Exemption Act are the words: “This deed is given under the power of sale as shown by the will of Mark White, deceased; said will having been admitted to probate on the tenth day of June A. D. 1920.” The deed having been put in evidence by plaintiff, defendant offered and the court received, over the objection of plaintiff, the will of Mark White, the second clause of which follows:

“I devise and bequeath to my beloved wife, Anna J. White all the property, both real and personal, including choses in action, that I may die the owner of to have and to hold during her natural life, I hereby authorize and empower my wife, Anna J. White, to sell and dispose of any part or all of said personal property and real estate if it shall become necessary for her support and maintenance hereby authorizing my said wife Anna J. White to make and execute deeds conveying said real estate. I also authorize and empower my wife, Anna J. White in addition to the power herein given to sell real estate for her support to also, if she shall deem best to make a donation to any charitable or religious institution, full authority is hereby given to make such donation out of the proceeds of the sale of any property herein devised to her and full authority given to execute deeds to raise fund for such donation and full power and authority * * * is hereby given during her lifetime that she may designate in her last will and testament the amount of said donation and out of what property or funds the same shall be paid.”

The third clause, so far as now pertinent, provides:

“Whatever real or personal property shall remain at the death of my wife and after the payment of the donation herein provided for, if one should be made, shall vest in my father and mother, my brothers and sisters, and my wife’s father and mother, brothers and sisters in equal parts and if a brother or sister shall die leaving a child or children such child or children shall take the part of such deceased brother or sister.”

Viewing the clause now before us in the. light of its purpose in such contracts, plaintiff was not required to prove an indefeasible title deducible of record, or through possession protected by statutes of limitation as in ejectment cases. “The words ‘owned in fee simple,’ ‘title in fee simple,’ ‘absolute title,’ or ‘absolute title in fee simple,’ refer not to the nature of the title, whether legal or equitable, but to the nature of the ownership; they do not import that insured can show an indefeasible title, free from defects and good against all persons, or even a valid legal title at all, and an outstanding naked legal title, or defects in the title or title deeds of the insured, if he claims under a deed or other evidence of title purporting to invest him with an estate in fee simple, do not constitute a breach or avoid the insurance where the policy is conditioned on any of these statements.” 26 C. J. 173, § 209. Security Ins. Co. of New Haven v. Kuhn, 207 Ill. 166, is referred to. That ease is like this in many respects, containing the clause now under consideration. By the will Mrs. Kuhn and her son were appointed executors. He declining to act, she qualified and acted. Property committed by the will to her as executrix and trustee was insured in her name and was burned. In an action on the policy in her name, the objection now made to the right of recovery was interposed, and held without merit. Among other reasons for holding that for insurance purposes the fee was in her, it is said (171):

“The legal right and legal estate were in the plaintiff, and she would be the proper one to bring an action at law concerning such estate. * * * She could not sell and convey the fee unless she had the fee. She was not vested with a mere power over the fee, but took a fee simple title by the devise. * * * No one has a present vested estate or insurable interest except the plaintiff. In the action at law she must be regarded as the sole and unconditional owner in fee simple. ’ ’

The doctrine of that case is applicable to this. The devise was to Anna J. White for life with a power to “sell and dispose of any part or all” of the real estate with authority to make and execute deeds conveying it for any or all of the uses and purposes in the will specified. He contemplated conveyances in fee simple, for only by such conveyances could- his intention be carried out. She was not restricted in selling. Her discretion alone was to control her. When she executed the deed to plaintiff for valuable consideration she vested in him a fee simple title. Plaintiff had all the title the insurance company was interested in his having. The object of the stipulation in the policy was to procteet the defendant against taking risks beyond the value of the interest insured so that the insured would use all reasonable precautions to avoid the destruction of the property. Security Ins. Co. of New Haven v. Kuhn, supra, 169. The defense relied on is without merit.

The other point in the brief of appellant is that false statements in verified proof of loss were made and that the policy was thereby rendered void. There was no material variance so far as the record discloses between the affidavit and the facts.

Reversible error not appearing the judgment of the circuit court is affirmed.

Affirmed.


author: Mr. Justice Niehaus

text:
    Village of Dawson, Appellant, v. Mary Estrop, Appellee.
    Gen. No. 8,021.
    1. Municipal corporations — necessity for notice of personal injury. In an action against a village for personal injuries due to a defective sidewalk, the specific requirements of Cahill’s St. eh. 70, jfjf 7 and 8 as to notice of injury are mandatory, and the giving of the notice there required must be proved to avoid dismissal of the case.
    2. Municipal corporations — when notice of personal injuries indefinite in locating accident. A notice to the city of personal injury which locates the"accident as having occurred on a "sidewalk running along and at a point to the east of the property owned by one Fannie Myers” is too vague and indefinite.
    3. Municipal corporations — when notice of personal injuries insufficient. A notice to city of personal injury that fails to state the injured person’s address, the name and address of her physician, the approximate hour of the injury, and which does not definitely locate the place where the accident occurred as required by Cahill’s St. eh. 70, HIT 7 and 8, will not support an action to recover for such injuries.
    Appeal by plaintiff from the Circuit Court of Sangamon county; . the Hon. E. S. Smith, Judge, presiding. Heard in this court at the October term, 1926.
    Reversed with finding of facts.
    Opinion filed February 28, 1927.
    Gerald G. Ginnaven, for appellant.
    John G. Friedmeyer, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

This suit was commenced by the appellee, Mary Estrop, in the circuit court of Sangamon county, against the appellant, the Village of Dawson, to recover damages resulting to her from a personal injury alleged to have been suffered by her on the second day of May, 1924, on account of an alleged defective condition of a concrete sidewalk on one of the village streets. There was 'a trial by jury and a verdict finding the appellant guilty, and assessing the appellee’s damages at the sum of $900. The trial court rendered judgment on the verdict, and this appeal is prosecuted from the judgment. The appellee made a motion to affirm the judgment on the ground that the appellant’s abstracts do not comply with the rules of this court, which we took with the case. It appears, however, that the abstracts are sufficient to meet the specifications of Rule 22, and the motion is therefore denied.

The main question presented on appeal for our consideration and determination pertains to the appellee’s right to recover from the appellant for the alleged injuries, because she did not comply with the requirements of the “Act concerning suits* at law for personal injuries against cities, villages and towns,” which are as follows: “Any person who is about to bring any action or suit at law in any court against any incorporated city, village or town for damages on account of any personal injury shall, within six months from the date of injury, or when the cause of action accrued, either by himself, agent or attorney, file in the office of the city attorney (if there is a city attorney, and also in the office of the city clerk) a statement in writing, signed by such person, his agent or attorney, giving the name of the person to whom such cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where such accident occurred, and the name and address of the attending physician (if any).” Cahill’s St. ch. 70, H7. Paragraph 3 of the same act provides: “If the notice provided for by section two of this act shall not be filed as provided in said section two, then any such suit brought against any such city shall be dismissed and the person to whom any such cause of action accrued for any personal injury shall be forever barred from further suing.”

The record discloses the fact that no notice of any kind concerning the alleged personal injury of the appellee was filed in the office of the attorney of the village; or was brought to his attention in any way. There was a statement in writing however given to the clerk of the Village of Dawson, which is in words and figures as follows:

“To the Village Board of Dawson, Illinois:

Claim of Mary Estrop Injuries on the 2nd day of May, A. D. 1924.

“On the above date claimant, Mary Estrop, fell upon the side-walk in the Village of Dawson, by reason of the imperfect and dangerous condition of the said side-walk, running along and at a point to the east of the property owned by one Fannie Myers; that as a result of the fall claimant sustained a fracture of the left shoulder and other injuries.

‘ ‘ The claimant avers that the injury to her left arm is permanent in nature and cannot, she is informed, by physicians, be cured; that the use of the claimant’s left arm is lost to her by reason of said injury; that she has expended a large sum of money in and about endeavoring to be cured of the said injury and will in the future be forced to expend large sums of money for medical treatment of the same; that she has suffered great pain since the above date and continues to suffer great pain as the result of the said injury.

“For all of which things claimant herein avers that she is damaged and makes claim to the Village Board of the Village of Dawson, Illinois, in the sum of $2,500.00.

“Respectfully submitted,

“Signed) Mary Estrop,

Claimant.

“Dated this 27th day of August, A. D. 1924.

“J. Gr. Friedmeyer, Attorney for Claimant.”

It is apparent that the statement in writing given to the village clerk does not meet the requirements of the statute in several essential particulars. While the statement in writing is signed by the "appellee as the person about to' bring an action against the village, and gives the date of the accident, it does not give “about the hour when it occurred,” as the statute requires. It does not give the residence of the appellee, the person injured, nor does it give the name and address of the physician who attended her. And with reference to the place or location where the accident occurred, it designates it as having occurred on a “side-walk running along and at a point to the east of the property owned by one Fannie Myers.” There is nothing in the notice to indicate where, with reference to the sidewalk, the property of Fannie Myers is situated, nor how far east of her property the point is where the accident occurred. The appellee testified that the accident happened: “On the west side of Church street just south of the Methodist Church. There is a tree standing close by the walk, and a root of the tree runs under the walk, and it raised the cement block, and as near as I know, that is what caused me to fall.” It is obvious that the description of the place or location where the accident occurred in the notice is vague and indefinite. “To be legally sufficient, a notice of this kind must contain a sufficiently definite description of the place of the accident to enable the interested parties to identify it from the notice itself.” Benson v. City of Madison, 101 Wis. 312; Reichert v. City of Chicago, 169 Ill. App. 493; Swenson v. City of Aurora, 196 Ill. App. 83. All of the specific requirements of statutes of this character are mandatory, and the giving of the notice is a condition precedent to the right to bring suit, and to recover damages, and the giving of the notice must be averred and proved by plaintiff to avoid a dismissal of his suit. Erford v. City of Peoria, 229 Ill. 546; Walters v. City of Ottawa, 240 Ill. 259; Langguth v. Village of Glencoe, 253 Ill. 505; Ouimette v. City of Chicago, 242 Ill. 501.

It is evident from the facts referred to and the authorities cited that the appellee’s right to recover is barred, and therefore the motion of appellant made at the close of all the evidence, to dismiss appellee’s suit, should have been sustained. The judgment is therefore reversed.

Reversed with finding of facts.

Finding of facts to be incorporated in the judgment. The court finds from the evidence that the description in the statutory notice to appellant of the location where the accident occurred is not definite, but is vague and uncertain; that about the hour of the accident. is not stated; that the place of residence of the appellee (the person injured) is not stated; and that the name and address of the attending physician is not given.


text:
    A. B. Means, Appellee, v. George H. Meiner, Appellant.
    Gen. No. 8,022.
    1. Pleading — requisites of affidavit of merits. The affidavit of merits required of a defendant under Cahill’s St. eh. 110, fl 55, in response to plaintiff’s affidavit of claim, must state facts showing a legal defense under the plea made, with sufficient particularity to apprize plaintiff of the nature and character of the defense.
    2. Pleading — suffidenoy of affidavit of merits. An affidavit of merits in response to plaintiff’s affidavit of claim in a suit for balance due on money advanced, which states that plaintiff had agreed with defendant to give him half the net profits of a grain elevator business in return for Ms labor in running the same, but had failed to do so and concealed the amount of the profits and refused to pay for grain advanced by defendant, is sufficiently definite.
    3. Pleading — object of affidavit of merits. The purpose of Cahill’s St. ch. 110, 55, requiring affidavits of meritorious defense, is to prevent vexatious delay by a filing of pleas without real defense or no real defense being apparent.
    Appeal by defendant from the Circuit Court of McLean county; the Hon. Edward Barry, Judge, presiding. Heard in this court at the October term, 1926.
    Reversed and remanded with directions.
    Opinion filed February 28, 1927.
    O. M. Peirce, for appellant.
    Hall, Martin, Hoose & DePew, for appellee; Edward Barry, Jr., of counsel.
   Mr. Justice Niehaus

delivered the opinion of the court.

This suit was commenced by the appellee, A. B. Means, against the appellant, George H. Meiner, in the circuit court of McLean county, to recover damages in the sum of $3,000. The declaration in the case consists of the common counts. The appellee by leave of court filed an affidavit of claim, which states that his claim is for money advanced to the defendant; and that there is due from the appellant after allowing all just credits, deductions and set-offs, $2,684.23. And the appellee thereupon filed a bill of particulars purporting to show the items constituting his demand; and it appears from the bill of particulars that his demand is for various sums of money had and received by the appellant during the years 1922, 1923 and 1924, totaling the sum of $10,390.10; and it also appears from the bill of particulars that there are various credit items due the appellant covering the same period of time, which together amount to the sum of $7,705.87; and leaves a balance apparently due the appellee of $2,684.23. One of the credits allowed the appellant in the bill of particulars is as follows:

“Dec. 31, 1922. Profits on Grain prior to said date, $1603.18.” The appellant in defense filed the general issue, also a special plea of set-off, in which it is averred that the appellee is indebted to the appellant in the sum of $5,000; and that this sum is due for work and for materials furnished for the appellee at his request; and for money lent by the appellant to the appellee; and for money expended and paid by the appellant for the use of the appellee at his request ; and for money received by the appellee for the use of the appellant; and for money expended for machinery purchased for the appellee by the appellant at the appellee’s request; and for monqy received by the appellee out of the grain sold, rightfully belonging to the appellant, which is due and unpaid; and that all of such sums of money so due the appellant from the appellee exceed the amount claimed and sued for. The appellant also filed an affidavit of merits; but on motion of the appellee, the court struck appellant’s affidavit of merits from the files, on the ground that it was legally insufficient and gave the appellant leave to file an amended affidavit of merits. The appellant thereupon filed an amended affidavit of merits. The amended affidavit avers that the appellant’s defense arose out of an agreement between the appellee and the appellant by the terms of which the appellee was to furnish the money to pay for grain purchased, and to furnish the elevator, and all expense and material necessary to run the elevator; and that the appellant was to furnish the labor, and do the buying of the grain at the elevator at Holder, Illinois ; and that the appellant was to draw checks for the grain purchased on the private account of the appellee ; and that as compensation for the services of the appellant for the labor furnished by him in purchasing grain and grading, weighing and loading it on cars, he was to receive from the appellee one-half of the net profits derived ont of the grain over and above the cost paid for such grain to the farmers, less transportation charges, dockage as to grade, if any, and dock-age as to loss, if any, in weight; and that the appellant paid out money of his own for grain purposes, and for machinery purchased by direction of appellee; and that the appellant sold his own and his son’s grain for the elevator, which has not been paid for in full, and for which the appellee still owes;' that the appellee has never accounted to or paid the appellant for his one-half of the net profits, but has refused to show the appellant the amount he received from the various cars of grain shipped during the running of the elevator referred to, by the appellant. The appellant also alleges that after entering into the agreement the appellee adopted a course of practice to defeat appellant from getting his part of the rightful profits made by shipping the grain purchased by him at Holder under the agreement, by having returns for said shipments made, not to the appellee individually, but having them made in the name of A. B. Means Company, or A. B. Means Grain Company, and thereby taking all the profits in a two per cent commission or more, which the appellant under their contract was entitled to share; that the appellee, though often requested to make an itemized statement of the amounts of money received from the grain purchased by appellant for him under their contract, has failed, neglected and refused to do so; and that therefore the appellant is unable to state the exact dollars and cents that are honestly due him from the grain handled; that the appellant verily believes that he has a good defense on the merits and a good right to recover over in his plea of set-off. The appellee filed a motion to strike the amended affidavit from the files, and for judgment as in case of default, alleging that the matters of defense or set-off contained in the amended affidavit were “vague, indefinite and not sufficiently itemized.” The court sustained the motion of appellee, and struck the amended affidavit from the files, and thereupon also rendered a judgment on the affidavit of claim filed by the appellee as in case of default, for the sum of $2,684.23. This appeal is prosecuted from the judgment. A motion was afterwards made by the appellant to set aside the order of default and judgment, but the motion was denied by the court. The appellee made a motion in this court, which we took with the case, to strike certain pages from the transcript of the record. We are of opinion that this motion should be denied.

The question presented for determination on appeal is whether the amended affidavit of merits was legally sufficient under the present statute requiring an affidavit of merits which specifies the nature of a defendant’s defense where the plaintiff has filed an affidavit of claim with his declaration. In Harrison v. Rosehill Cemetery Co., 291 Ill. 416, this question was considered by the Supreme Court, and the court comments on the present statute which has the “requirement that the affidavit should specify the nature of the defense, * * * enacted in 1907,” and which provides, “that if the plaintiff in any suit upon a contract, expressed or implied, for the payment of money, shall file with his declaration an affidavit showing the nature of his demand and the amount due him from the defendant after allowing to the defendant all his just credits, deductions and set-offs, if any, he shall be entitled to judgment as in case of default, unless the defendant or his agent or attorney shall file with his plea an affidavit stating that he verily believes the defendant has a good defense to said suit upon the merits to the whole or a portion of the plaintiff’s demand and specifying the nature of such defense, and if a portion, specifying the amount. The only change made in the previous statute is by the addition of the words ‘and specifying the nature of such defense.’ That being the only change in the statute, the construction to be given to it is the same, except that the defendant must specify the nature of his defense. The defendant must not only file an affidavit stating that he verily believes he has a good defense to the suit upon the merits to the whole or a portion to the plaintiff’s demand, but he must state the kind or character of the defense, and it necessarily must be a legal defense which could be made under his plea. If the plea is non-assumpsit the affidavit must show a defense under that plea, and if there are special pleas, such as payment, release or accord and satisfaction, the affidavit must show facts of such a nature as will be a defense under those pleas, with sufficient particularity to apprize the plaintiff of the nature of the defense, but it is not necessary to state the evidence or the facts in detail.” It is necessary only to specify the amount involved in the defense, where, the defense is to be a portion of the plaintiff’s claim. Smith’s St. 1925, ch. 110, sec. 55, Cahill’s St. ch. 110, 55; Colby v. Wilson, 320 Ill. 416.

Viewing the amended affidavit in the light of the decisions referred to, we are of opinion that the matters therein contained set up and specify the nature of appellant’s defense, which was to the whole of appellee’s claim, with sufficient particularity to apprize the appellee of the nature and character of appellant’s defense. And it is evident, also, from the averments in the affidavit, that the facts stated are as specific as the appellant could be expected to make them under the circumstances and conditions alleged in the affidavits.

The purpose for which statutes of this character requiring affidavits showing a meritorious defense are passed is to prevent vexatious delays, occasioned by parties filing pleas in cases where they have no real defense or where a real defense is not apparent. Haggard v. Smith, 71 Ill. 226; Harrison v. Rosehill Cemetery Co., supra.

For the reasons stated, the judgment is reversed and the cause remanded with directions to overrule the motion to strike the amended affidavit of merits from the file.

Reversed and remanded with directions.


author: Mr. Justice Shurtleff

text:
    John Gerrard, Appellee, v. Joseph P. Porcheddu and Paul Porcheddu, partners, trading as The Illinois Fireworks Display Company, Appellants.
    Gen. No. 8,020.
    1. Explosives — liability independently of negligence. In an action for damages for setting fire to plaintiff’s house by shooting a bomb upon the roof, defendant cannot excuse such unlawful trespass by claiming he was not carelessly or unlawfully firing explosives.
    2. Evidence — judicial notice. Courts will take judicial notice that the handling or exploding of dynamite or gunpowder is dangerous.
    3. Evidence — right to show prior injury to another from same cause. In an action for damages for setting fire to plaintiff’s house, he may show prior injury to another from the same cause and notice thereof to the defendant.
    4. Evidence — use of models. In an action for damages for setting fire to plaintiff’s house, he may illustrate the alleged instrumentality of the fire by models.
    5. Evidence — prior injury to party from same cause. In plaintiff’s action for damages from setting fire to his house he may show that prior to that damage his house had caught fire under the same conditions.
    6. Examination op witnesses — cross-examination as to contents of writing. The court may properly refuse to allow a party to cross-examine his own witness as to the contents of a writing the signature to which the witness had admitted on cross-examination by the adverse party, but which the latter did not then introduce in evidence.

      7. Examination op witnesses — examination as to contents of writing. Upon a witness admitting his signature to a written statement, it is improper to inquire of him if it contains certain matter, since the paper must speak for itself.
    8. Witnesses — impeachment by contradictory statement. A written statement which the witness has identified on cross-examination, and which is inconsistent with his testimony, is admissible to impeach him.
    9. Saving questions por review — when objection insufficient. In an action for damages from setting fire to plaintiff’s house, the defendant’s objections to evidence tending to show the cost of repairing the house that the witness was not qualified, will not support an assignment of error on the ground that the evidence did not show a proper measure of damages.
    10. Damages — measure of, for damage to house by fire. In an action for damages for setting fire to a house, the measure thereof should be the cost of restoring the house to its previous and proper condition.
    11. Evidence — right to inquire as to insurance carried. In plaintiff’s action for damages for setting fire to his house, defendant will not be allowed to inquire the amount of insurance obtained by plaintiff on account of the fire.
    12. New trial — when newly-discovered evidence not ground for. Testimony which is merely cumulative, hearsay, or which could have been produced on the trial, will not justify a new trial.
    Appeal by defendant from the Circuit Court of Vermilion county; the Hon. Augustus A. Partlow, Judge, presiding. Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed February 28, 1927.
    Crayton & Twomey and Graham & Dysert, for appellants.
    H. M. Steely and H. M. Steely, Jr., for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is an action on the case of John Gerrard against Joseph P. Porcheddu and Paul Porcheddu, partners, doing business as The Illinois Fireworks Display Company, for the recovery of damages for the loss of his dwelling house by fire on or about July 28, 1925, about 5 o’clock in the afternoon. On a trial before a jury a verdict and judgment in favor of the plaintiff was rendered for $4,000,. which it is sought to reverse on this appeal.

The declaration consisted of one count and the general issue was pleaded, and at the close of the plaintiff’s testimony, and again at the close of all the evidence in the case, the court overruled defendants’ motion for a directed verdict and refused the peremptory instruction tendered therewith.

The appellants own about five acres of land lying on the west side of King Street, between King Street and Meitzler Street, and adjoining the Wherry property on the west, the southeast corner of appellants’ property cornering with the northwest corner of the appellee’s property. South of this tract owned by them and on which their fireworks buildings are located at intervals of 50 or 60 feet, they rent a small tract adjoining, lying on the west side of King Street and west of appellee’s property.

Appellants manufactured fireworks upon their premises and the evidence shows that they would test these fireworks, or exhibit the different kinds to purchasers, by shooting or. firing them. To do this they would cross King Street from the southeast corner of their property to the northwest corner of the Gerrard property and fire the same (either by attaching them to Gerrard’s west fence or to his north fence), by frequently setting pieces on the tops of posts or attaching the pieces to them, and in this way they had frequently split and slivered posts in his fence. Most of the time they would go east along the fence on Gerrard’s north line down to the southeast corner of the cornfield on the Wherry property, and just west of Wherry’s pasture and fire them from that place, and when firing aerial bombs they would set what they call mortars of steel, with a bottom in them four inches or a little more in inside diameter, on end, and the lower end five or six inches in the ground and then put the bombs in these mortars and fire them into the air. The mortars might set on an incline as they are not tested, and the paper may be ignited and set fire. The bombs were constructed with a powder charge in the bottom to which a fuse was attached, and this was exploded for the purpose of elevating the bombs into the air, and how high they would go depended upon the amount of powder they had put in this bottom charge.

The evidence shows that previous to this fire parts of these bombs, or remnants of the casing used in covering the fireworks, had exploded, had been thrown or carried over on to appellee’s property and had set fires. Pieces of exploded fireworks had alighted upon the barn back of appellee’s house and had alighted on the premises south of appellee’s and had set fires, and the fence had been damaged and destroyed by the explosion of fireworks and he had been compelled to rebuild the same. Appellee had made complaints to each of the appellants and had warned them to stop firing on or upon his fence, and not to fire anything that would fall upon his premises or endanger the same, and one of the appellants had gone over on the premises and looked at a place where fire had been communicated and offered to pay the damage.

On the day of the fire, the evidence shows Antonio Gferino had come down from Chicago to buy some fireworks and wanted an exhibition of some of the ones that he proposed to purchase. After 5 o’clock, which was quitting time in the fireworks plant, Wilson Halls, Paul Porcheddu and Tony Gferino went down to the southeast corner of the plant, crossed over to the east side of King Street upon the Wherry premises along appellee’s north line for the purpose of showing Mr. Gferino what the fireworks were like and what kind of an exhibition they made when exploded. The evidence on behalf of appellee is that several shots were fired down near the southeast corner of the little cornfield on the Wherry land; and that after the last explosion, which was a very loud one, the steel cap fell upon the roof of appellee’s house and rolled off on to the ground with some pieces of shingles which it had split off or knocked off in falling; that the distance from where the shot was fired to appellee’s house was about 300 feet, and in a very short time after the bomb cap struck the roof of the house and rolled off, fire was discovered on the roof and there was no one else who fired any fireworks in that vicinity and no firing of any blast of any other kind within a mile or more of the premises.

Appellee states that previous to firing his house they had set two fires in his orchard, and that he went over and got Joe Porcheddu and took him over and showed him where it had burned and where the remains of a skyrocket or some other fireworks piece had alighted in the grass in the orchard. The house burned to the ground and was a total loss.

It is contended by appellants that the proofs show no negligence on the part of appellants and that appellants were not engaged in the doing of an unlawful act.

The throwing of something over on to the land of another, which sets a fire or causes damage, is a trespass, and is unlawful, and the question of care, or want of care in setting out the fire, or firing the explosive, does not enter into the question. Fitz Simons & Connell Co. v. Braun & Fitts, 199 Ill. 390; Fitz Simons & Connell Co. v. Braun & Fitts, 94 Ill. App. 533; Joliet v. Harwood, 86 Ill. 110. The courts will take judicial notice of the fact that the handling or exploding of powder or dynamite is dangerous, as held in Fitz Simons & Connell Co. v. Braun & Fitts, supra, and also in the following cases: Fitz Simons & Connell Co. v. Braun & Fitts, 199 Ill. 390, 65 N. E. 249, 59 L. R. A. 421; Gossett v. Southern Ry. Co., 115 Term. 376, 89 S. W. 737, 112 Am. St. Rep. 846, 851; Weitzmann v. A. L. Barber Asphalt Co., 190 N. Y. 452, 83 N. E. 477, 123 Am. St. Rep. 560, 579; City of Chicago v. Murdock, 212 Ill. 9; City of Chicago v. Murdoch, 113 Ill. App. 656.

Appellants contend that it was reversible error to permit evidence of other fires at other places in the community to be introduced. Evidence of prior injury, or accidents, to another, from the same cause or appliances, and notice thereof to the party charged, is admissible. Franke v. Hanly, 215 Ill. 216. Models illustrating the use of the instrumentality which is claimed to have caused the injury are properly admitted in evidence. Pennsylvania Coal Co. v. Kelly, 156 Ill. 9. In action for damages to plaintiff’s personal property by fire which spread from that started by defendants’ servants, evidence that at another time plaintiff’s property had caught fire under the same conditions is competent as evidence of notice of the danger. McCracken v. Farmers’ Grain Co., 215 Ill. App. 551. We cannot agree with appellants’ contention.

Error is assigned upon the court’s refusal to permit appellants to cross-examine one of their witnesses as to the contents of a statement in writing, the signature to which the witness had admitted on cross-examination by appellee’s counsel and which appellee later offered in rebuttal by way of impeachment. The statement had not been offered in evidence by appellee. There was no error in this ruling.

Where a witness on cross-examination is shown a written statement signed by him and admits his signature thereto, it is proper for the court to refuse to allow the defendants to inquire of him as to the contents of the statement. Such inquiry, if proper, should have been asked of the witness in rebuttal, and be recalled for that purpose. Momence Stone Co. v. Groves, 197 Ill. 88, 92.

"Where a witness admits his signature to a signed statement, it is improper to ask him if the paper contained certain language, as the language in the paper must speak for itself, and further proof thereof is unnecessary and improper. Momence Stone Co. v. Groves, supra; Atchison, T. & S. F. R. Co. v. Feehan, 149 Ill. 202. A written statement made by a witness inconsistent with his testimony on the stand, when identified by him on cross-examination, is admissible to impeach him. Chicago City Ry. Co. v. Mauger, 128 Ill. App. 512; Edmunds Mfg. Co. v. McFarland, 118 Ill. App. 256; Dick v. Marble, 155 Ill. 137.

Appellants assign error upon the proofs offered and admitted in evidence, showing or tending to show the cost of repairing or rebuilding the house, and contend that it is not the proper measure of damages in this case. No such objection was made when the proofs were offered. Appellee while on the witness stand testified that he had built several houses but none since the fire; that he was familiar with the cost of building and material at the time the fire took place, and the question was asked (we quote from the record): “Q. Now, then, you may state what, in your judgment, it would cost to repair or rebuild this house and put it in the condition it was at the time this fire took place. Objection, no qualification, no experience. Overruled. Exception.” Similar questions were later put to other witnesses, to which appellants made merely the general “objections,” which were overruled, and neither party offered, nor was there given by the court, any instruction as to the measure of damages. On this state of the record, it is plain that the assignment of error was not raised in the court below and therefore cannot be raised in this court. However, appellants were in no manner prejudiced by the testimony or the measure of damages used.

The Supreme Court say in adopting the language of Sutherland on Damages, in reference to the injury or destruction of a building: “and that valuation should be adopted which will be most beneficial to the injured party, for he is entitled to the benefit of the premises intact and to the value of any part separated. The damages for injury done to a house are measured by the cost of restoring it to its previous condition.” Fitz Simons & Connell Co. v. Braun & Fitts, 199 Ill. 390, 398; 3 Sutherland on Damages, sec. 1018.

In an action for damages for injury to plaintiff’s building caused by the defendants’ use of explosives in excavating a tunnel, the true measure of damages is the cost of repairing the building and restoring it to its proper condition. Fitz Simons & Connell Co. v. Braun & Fitts, supra.

There was no error in refusing to permit appellants to show the amount of insurance recovered by appellee. In Dunleavy v. Stockwell, 45 Ill. App. 230, the court say on page 232: “If appellant was guilty of setting the fire that destroyed the property, as charged in the declaration, he was primarily liable to appellee no matter how much insurance he had on the property, and if the insurance had been paid, the insurance company could maintain suit in appellee’s name to recover over for the insurance so paid.”

Assignments of error are made by appellants as to statements made by counsel for appellee to the jury, none of which we deem of such importance as to reverse this judgment, and upon the court’s refusal to give certain instructions to the jury. We have examined all of the refused instructions and they are either subject to the criticism of being argumentative or are covered by other instructions given, neither are we able to sustain the assignment that the judgment and verdict are manifestly against the weight of the evidence. The testimony was conflicting, but the jury saw and heard the witnesses testify and were better qualified to pass upon the question of the preponderance of the evidence than this court from reading the proofs in the record.

In the motion for new trial presented by appellants, certain affidavits are incorporated, purporting to present newly-discovered evidence, upon which the motion for new trial is in part predicated. We have examined the affidavits. To quite an extent the testimony is cumulative, a portion of it is based upon hearsay and no sufficient reason is given why the other parts of it could not have been produced upon the trial. We find no reversible error in the record. The judgment, therefore, of the circuit court of Vermilion county is affirmed.

Affirmed.


text:
    James H. Wilson, Appellant, v. J. N. Rodman and G. M. Kincaid, Trustees, Appellees.
    Gen. No. 8,030.
    1. Landlord and tenant — when notice of new terms effective after termination of lease binding upon tenant. Upon termination of a lease, notice given by a landlord to his tenant of new terms for the ensuing year’s rental makes such terms binding upon the tenant even without his consent if he stays upon the place for the following term.
    2. Landlord and tenant — basis of elcwm to rent where tenant remains after term following oral notice of new. terms. The claim of a landlord for the rent of his property on oral notice to the tenant of terms differing from the preceding year’s does not rest on the tenant’s holding .over under the lease but upon an implied contract based upon occupancy.

      Appeal by plaintiff from the Circuit Court of McLean county; the Hon. Edward Barry, Judge, presiding. Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed February 28, 1927.
    Sigm:und Livingston and Pratt, Heffernan & Ramseyer, for appellant.
    Herrick & Herrick and Morrissey & Morrissey, for appellees.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This suit was commenced in distress for rent by appellees, executors and trustees under the last will of Sabina Moore, deceased, for the collection of the rent of a farm of 320 acres in McLean county, for the year beginning March 1,1925, from appellant who was the tenant in possession of said premises at the decease of testatrix. On the return of the distress warrant, appellant filed the general issue and the cause was tried by a jury. At the close of all the evidence the court directed a verdict in favor of appellees, overruled a motion for new trial and rendered judgment for appellees, from which this appeal was perfected.

Sabina Moore, owner of said premises, died June 16, 1919, leaving a last will and testament dated August 25, 1910, together with various codicils. By her last will testatrix directed appellees, as trustees, to rent all of her farm lands, including the premises in question, for the period of 10 years from date of her death until March 1st next following. She further directed a sale and conveyance of all said land at the end of such renting period, and not before. Hpon such sale she directed the distribution of the proceeds thereof to her surviving brothers and sisters and the children and descendants of deceased brothers or sisters, in equal parts or share, per stirpes. She further provided that all payments of rent should be divided in like manner and paid to the beneficiaries in person.

Appellant is one of the four sons of a brother of testatrix, and is thus entitled to one-fourth of the full share of a brother or sister in the net rents and also in the proceeds of the sale of the real estate of testatrix. There were several brothers and sisters and there are a large number of beneficiaries of the trust.

Appellant rented the premises in question under lease dated October 30, 1907, for a term of five years from March 1,1908. This lease, on December 28,1911, was extended for seven years from March 1, 1913, to 1920. On September 27, 1918, after making the will above mentioned, testatrix again extended said lease five years from March 1,1920, to March 1, 1925. This lease was on a cash rent" basis for $2,000 per year.

Testatrix was a resident of DeWitt county and her will was admitted to probate in that county. After her death appellees filed a bill in chancery in the circuit court of DeWitt county, at the September term, 1920, making all the beneficiaries under said will parties defendant thereto, praying for appointment as trustees under said will and for the advice and direction of the court. Appellant was made one of the defendants to said bill and entered his appearance in that cause. A decree was rendered October 25, 1920, finding the rights of all the parties, appointing appellees trustees and fixing their bond, directing the trustees to take the possession, management and control of testatrix’s land, including the premises in question, rent the same during the prescribed period, make sale of the same when the proper time arrived and to make reports of their acts and doings under the decree to said court, with liberty to the parties to apply at any time to the court for direction and guidance.

In her last will testatrix recited that all her farm lands were now rented to her brother, James Gr. Wilson, and three of his sons, in several tracts; that the present tenants in each case should have the refusal or first privilege of renting such lands during such 10-year period, at reasonable rental, without specifying the rent.

Appellant continued to occupy the premises in question in this cause after the death of said Sabina Moore until March 1, 1925, under the terms of said cash rent lease. Early in November, 1924, appellees submitted a lease to appellant for him to execute, demising said premises for the term of one year from March 1, 1925, to March 1, 1926. The-lease provided for the usual customary rent in the neighborhood of one-half the grain delivered and $8 per acre for all land not farmed in grain. The testimony is uncontradicted that appellees presented the lease to appellant with the terms as stated and notified appellant that he would be required to pay the rental set out in the new lease, if he remained upon the farm. Appellant did not sign the lease presented and at various times prior to March 1, 1925, stated to appellees that the rent demanded was too high and that he would not sign the lease. Nevertheless, appellant continued to occupy the premises and farmed the land during the season of 1925. The verdict is based upon the testimony of appellees and the statements of appellant as to the amount of the crop raised, its value and the use of the land. This testimony was not contradicted upon the trial- and it was shown to be a reasonable rental for the land. The new lease presented by appellees to appellant was in all substantial matters the same as the former leases, except as to the amount of rent to be paid, which is conceded to be a higher rate of rental for the year 1925.

Appellant contends that, having refused to accept the terms of the new lease, and appellees having elected to treat him as a tenant, he held over under the terms of the old lease. On the other hand, appellees contend, and seem to be supported by a long line of authority, that the rule is that where notice is given by the landlord to the tenant, before the term expires, that the terms of the original lease will be changed, and if the tenant remains it must be upon different terms, specifically stating them, if the tenant remains whether he signifies his assent thereto or not, he will be treated as subject to the original lease as amended by such notice, citing Sherriff v. Kromer, 232 Ill. App. 589; Griffin v. Knisely, 75 Ill. 411; Clinton Wire Cloth Co. v. Gardner, 99 Ill. 151; Kelly v. Armstrong, 139 Ill. App. 467; Higgins v. Halligan, 46 Ill. 173; Rand v. Purcell, 58 Ill. App. 228; Kelso v. Crilly, 85 Ill. App. 568; Rader v. Huffman, 125 Ill. App. 554.

In Sherriff v. Kromer, supra, on page 592, the court say:

“In Higgins v. Halligan, 46 Ill. 173, the landlord notified his tenant that if he continued to occupy the premises after the expiration of the existing lease, he would be required to pay an increased specified rental. The tenant continued in possession after the expiration of the original lease, and it was held that he was bound to pay the increased rental, the court saying:

“ ‘If a landlord duly notifies his tenant, who is holding by the year, and before the year is out, that if he occupies the premises another year, he must pay a certain increased rent, and the tenant does not surrender the possession, but continues to occupy them, can any one doubt his acquiescence in the new terms, and his liability on account thereof? This is the doctrine of the cases cited: Prickett v. Ritter, 16 Ill. 97, and McKinney v. Peck, 28 id. 178.’

“This rule is followed'in Griffin v. Knisely, 75 Ill. 411; Clinton Wire Cloth Co. v. Gardner, 99 Ill. 151; Kelly v. Armstrong, 139 Ill. App. 467; Doubet v. Doubet, 186 Ill. App. 316; Seaver Amusement Co. v. Saxe, 210 Ill. App. 289. In Wood on Landlord and Tenant (2nd ed., sec. 13), the rule is stated that where by notice, given by the landlord to the tenant before the term expires, that the terms of the original lease will be changed and if the tenant remains it must be upon different terms, specifically stating them, if the tenant remains ‘whether he signifies his assent thereto or not, he will be treated as subject to the original lease as amended by such notice. * * * The lease is not the contract under which he holds over, but only evidence to uphold the implied contract resulting from such holding over, except so far as it has been changed by notice or agreement.’ To the same effect are Taylor on Landlord and Tenant, 9th ed., secs. 22 and 650, also 24 Cyc. 1031.

“This rule is based on reason. The landlord has the right to state the terms of a prospective new leasing, and to allow the tenant to substitute different terms, by merely remaining in possession, is to deprive the landlord of control of his own property.”

It was further held in the same case that the statute of frauds did not apply to the parol agreement to be executed after the period of one year had expired, as plaintiff’s claim rested upon an implied contract, based upon occupancy. In Clinton Wire Cloth Co. v. Gardner, supra, the court on page 163 held:

“We perceive nothing in our own decisions cited by counsel for plaintiff in error inconsistent with the view we here adopt. One of the cases cited, Griffin v. Knisely, 75 Ill. 411, is certainly adverse to the position of plaintiff in error, that the legal implication resulting from the holding over of premises may be repelled by the intent on the part of the tenant. There was a written lease in that case, from May 1, 1871, to May 1, 1872, at a fixed rent. Before the expiration of the term the parties verbally agreed to execute a written lease for another year, at a price fixed, but the lessee refused to sign the lease when presented to him, and the landlord withdrew the proposition. The landlord then notified the tenant that if he held over he must pay an advanced rate named. The tenant then signed the written lease, and the question was, whether the holding over was under the old lease or the advanced price. It was held that it was at the advanced price, and the tenant was charged therefor as upon an agreement to pay it, although he did not assent to the payment of the advanced price, and it was most clearly his intention not to pay it.”

It is contended by appellant that some portions of the court’s opinion in Griffin v. Knisely, supra, were obiter dicta, and that view apparently was followed in Galloway v. Kerby, 9 Ill. App. 501, and Lasher v. Heist, 126 Ill. App. 82. The identical question was before this court in Rader v. Huffman, supra, and the same rule followed as laid down in Sherriff v. Kromer, supra, which we consider the better rule.

The judgment of the circuit court of McLean county is therefore affirmed.

Affirmed.


text:
    Louis K. Liggett Company, Appellee, v. Maurice Strum and Nathan Strum, copartners, trading as Strum Brothers, Appellants.
    Gen. No. 8,031.
    1. Saving questions fob review — failure to assign error upon denial of new trial as precluding attaelc upon sufficiency of evidence. If appellant fails to assign as error the denial of his motion for new trial, he cannot raise upon appeal the sufficiency of the evidence to support the verdict.
    2. Appeal and error — when record does not warrant imputation of passion or prejudice in verdict. Record on appeal from judgment for unpaid rent held to show nothing warranting the reviewing court to impute passion or prejudice in the jury’s verdict, notwithstanding uneontroverted evidence therein of damage to the tenants’ goods alleged as an offset against plaintiff’s claim.

      Appeal by defendants from the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding. Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed February 28, 1927.
    Johnson & Pefferle, for appellants.
    Brown, Hay & Stephens, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

On November 8, 1920, appellants entered into a contract with appellee whereby appellee leased to appellants a certain basement room in the city of Springfield, Illinois, reserving to the lessor (appellee) “Space for all pipes, wires, shaftways, stairways'and the like leading to or from the portions of the building not hereby leased — substantially as they now are.” Appellants agreed to pay therefor an annual rent of $2,400, payable in monthly instalments of $200 per month. One year later, appellee agreed to reduce the rent, the agreement being incorporated in a letter from appellee to appellants and accepted by the latter by which appellants agreed to pay $1,500 per year until January 1,1925, $1,800 per annum from January 1, 1925, until January 1, 1928, and $2,100 per annum from January 1, 1928, to the expiration of the lease.

Since the demised room was a basement under a drug store, and therefore liable to greater hazards from water and the incidents of tenancy under such a business, the terms of the lease were more definite and specific as to these hazards than the usual provisions of a store lease. For example, the leases provided :

(a) “The Lessee has hired the demised premises after examination in their present condition (unless otherwise specifically agreed upon in writing) and without any representations on the part of the Lessor or any of its agents.

(b) “The Lessee recognizes the liability of the premises to inflow of rain water, sub-soil percolation and sewage, and assumes all risks thereof and agrees to hold the Lessor harmless on account thereof.

(c) “It is further understood and agreed that the Lessor shall not be liable for any damages done or occasioned by or from plumbing, gas, water, steam or Other pipes or sewerage, or the bursting, leaking or running of any cistern, tank, washstand, water closet or waste pipe in, above, upon, or about the said building or premises or for damages occasioned by water, snow or ice being upon or coming through the roof, skylight, trap door or otherwise.

(d) “It is understood that Lessor is about to make certain alterations to the demised premises and that in so doing will take over a portion of the premises now or formerly occupied by the Lessee herein, and that the Lessor also reserves the right to make certain changes to the entrance to the demised premises. In event that the Lessee occupies the demised premises during the course of such alterations, the Lessee hereby agrees to assume all risk, liability and damage to persons or property in and about the demised premises during and on account of said alterations and will hold the Lessor harmless and indemnified on any account thereof.

(e) “That Lessee will insure and keep insured said Lessor, in insurance companies satisfactory to Lessor, against liability for accident in the demised premises including approaches or side-walks appurtenant thereto and will furnish duplicate policies to Lessor covering the interests of Lessor as they may appear to the amount of $10,000.00 liability for accident resulting in injuries to or death of one person and $20,000.00 liability for an accident resulting in injuries to or death of more than one person.”

Appellants paid the agreed rent of $1,500 in monthly instalments of $125 through the years of 1922, 1923 and 1924. Beginning with January 1, 1925, the date on which the rent increased to $1,800 a year, appellants refused to pay the increased rent but continued to send appellee $125 a month, which appellee credited on appellants’ account but not in full for rent due. No rent was paid for the months of January, February, March and April of 1926. No policy of liability insurance was furnished appellee as provided by the lease, and appellee carried insurance to cover these premises paying therefor the sum of $8.20.

The claim of the appellee on the trial therefore consisted of three items: (1) The arrears in rent for 1925 of $25 per month for 12 months, amounting to $300; (2) rent for January, February, March and April, 1926, at $150 per month, amounting to $600; and (3) the amount paid by appellee for liability insurance, amounting to $8.20, making a total due appellee of $908.20. None of this amount, with the exception of the item of $8.20, was disputed by appellants on the trial.

The trial court, over the objections of appellee that the evidence varied the terms of a written contract, permitted one of the appellants to testify that appellee verbally agreed, at the time of the makiug of the written lease, to make certain alterations which were not specified in the lease, and that these alterations consisted of the removal of all pipes in the basement. He further made general statements that water dripped from these pipes which were not removed, and caused some damage to shoes. Charles F. Kirwin and Theodore Richman, clerks employed by appellants, testified in their behalf. Kirwin said that he had seen water come in and run over the shoes (saying nothing about where it came from), and that some of these shoes had been sold at a reduction. Rich-man saw water leaking and sweating from the drain pipe and said that shoes were damaged thereby, but that he did not sell any of them at a reduced price. Appellants sought to justify the admission of evidence to prove a set-off for damages, caused by water dripping from these pipes, by paragraph (d) of the lease.

Appellants made no motion for a directed verdict and motions on the part of appellee to strike all of appellants’ testimony and to direct a verdict were denied. The cause was tried by a jury and there was a verdict and judgment for (plaintiff) appellee in the full amount of the rent claimed and appellants have appealed.

Appellants have not assigned as error the denial of their motion for a new trial and they cannot, therefore, urge that the verdict was against the weight of the evidence. In the absence of an assignment of error on the denial of a motion for a new trial, the sufficiency of the evidence to support the verdict cannot be raised. (Tarter v. Chicago & A. R. Co., 235 Ill. 589; Munger v. Supancicz, 64 Ill. App. 661; Chicago G. W. Ry. Co. v. Gitchell, 95 Ill. App. 1; City of Kankakee v. Phipps, 135 Ill. App. 585; Drake Standard Machine Works v. Brossman, 135 Ill. App. 209.)

In Drake Standard Machine Works v. Brossman, supra, the Supreme Court, 232 Ill. 412, reversed the judgment for improper admission of evidence. Appellants make no complaint on the admission or rejection of evidence, or the giving or refusing in instructions in the court below. Appellants’ only complaint of error in the record, to which this court should give any attention, is that appellants gave uncontradicted proof establishing damages which should have been off set against the rent, and that the verdict, therefore, is chargeable to passion and prejudice on the part of the jury. We have read the entire record and cannot say that anything in the record imputes passion or prejudice in the verdict of the jury. The court erred in the admission of testimony by appellants which contradicted the express provisions of clause (c) of the written lease, and in the instructions given for appellants based upon such testimony. However, after reading the record, it is not difficult to determine the theory, from the evidence, upon which the jury arrived at its verdict without any passion or prejudice, and the judgment of the circuit court of Sangamon county should be and is affirmed.

Affirmed.