text:
    Eugenie Gambill, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 41,738.

      Heard in the third division of this court for the first district at the June term, 1941.
    Opinion filed January 7, 1942.
    Hoyne, O’Connor & Rubinkam, of Chicago, for appellant; Nathaniel Rubinkam and John C. Melaniphy, both of Chicago, of counsel.
    Henry M. Hilton and Meyer A. Ginsburg, both of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This action was instituted by Eugenie Gambill, as beneficiary under two industrial insurance policies issued by the Metropolitan Life Insurance Company, one on June 28, 1937 and the other on October 4, 1937, on the life of Rudolph Storch, her father. The cause was tried before the court, without a jury, who found the issues in favor of plaintiff and entered judgment against the defendant for $340.

The plaintiff in her statement of claim sets forth allegations concerning (1) the issuance of the policies, one for $342, and the other for $190; (2) the death of the insured on June 8, 1938; (3) that she is the named beneficiary in each of said policies; (4) that the policies were in full force and effect at the time of the death of the insured, and (5) the refusal of the defendant to pay. Defendant answered admitting the issuance of the policies, setting forth in defense the clause of the policy which provides that if within two years prior to the date of issue of the policy the insured has been a patient at or an inmate of, any institution for treatment of physical or mental disease, or has been attended by a physician, unless it shall be shown by the insured or any claimant that no such institutional or medical treatment or attention was for a serious disease, injury or physical or mental condition, the policy subject to the clause entitled incontestability, is voidable by the company, unless reference to such institutional or medical treatment or attention is endorsed on the policy by the company; that if the policy does not take effect, or is voided by the company, the company will return the premiums paid. Defendant further alleges that within two years prior to the date of issue of the policies sued upon, the insured had been a patient of an institution for treatment of physical or mental disease and had been attended by a physician; that it has not been shown by the plaintiff that such institutional and medical treatment and attention was not for a serious disease, injury or physical or mental condition; that by reason of the foregoing allegations the policies sued upon are void and the only liability of the defendant is the return of premiums paid which amount had already been tendered to the plaintiff and refused by her and which amount was also tendered in full satisfaction of defendant’s liability under the policies sued upon. The defendant then set up the applications made to the defendant company and signed by the insured; that the answers set forth therein were false and untrue and constituted material misrepresentations and if the defendant company had known that such answers were false and untrue, it would not have issued the policies sued upon. It denied it was liable to the plaintiff in any sum other than $30.10, which represented the premiums paid on the two policies. No reply was filed to this answer.

The facts as they appear from the evidence in this record are that on June 28, 1937, the defendant issued a policy of insurance in the sum of $342 to Rudolph Storch, effective upon payment of 45 cents weekly premium.' On October 4, 1937, the defendant issued another policy of insurance in the sum of $190 to Rudolph Storch, effective upon payment of 25 cehts weekly premium. The plaintiff, Eugenie Grambill, daughter of the insured, was the named beneficiary in both policies. The insured died June 8,1938, less than one year after the date of the respective policies. The policies were issued without medical examination of the insured, and each policy provided:

“When Policy is Voidable. If (1) within two years prior to the date of issue of this Policy the Insured has been a patient at, or an inmate of, any institution for the treatment of physical or mental disease, or has undergone any surgical operation, or has been attended by a physician, unless it shall be shown by the Insured or any claimant that no such institutional, surgical, or medical treatment or attention was for a serious disease, injury, or physical or mental condition; or if (2) prior to such date of issue the Insured has been rejected for life insurance by this or any other insurer; then in such case, this Policy shall, subject to the clause entitled Incontestability, be void by the Company, unless reference to such institutional, surgical, or medical treatment or attention, or such prior, rejection, is endorsed on this policy by the Company. If this'Policy does not take effect, or is voided by the Company, the Company will return the premiums paid.” The incontestable clause is as follows:
“This Policy shall be incontestable after it has been in force, during the lifetime of the Insured, for one year from its date of issue, except for nonpayment of premiums.” All premiums were paid on each of the policies from the time of issue until the death of the insured, and total $30.10. Insured was 50 years of age. On May 21, 1937 (about a month prior to the first application) Dr. Margaret M. Buck attended the insured at his home; he was in bed with severe pain. He gave the doctor a history of being in the County Hospital two months previous where X-rays indicated renal calculi and that he had been passing blood in the urine off and on since 1932. The doctor made an examination after which she diagnosed a renal calculi (kidney stone) and advised his family to send him to the hospital. He was taken to the Jackson Park Hospital that day where upon further examination by the doctor, the urine showed albumin, and innumerable pus and blood cells; his blood pressure was 175 over 112, which was not normal for his age. This indicated a renal condition, or stones in the kidneys. He had no finances to remain in the hospital and the doctor recommended that he go to the County' Hospital and continue to be hospitalized because of his serious condition.

On September 6,1937 (about one month prior to the second application) Dr. Charles L. Schmidt attended the insured at his home; the doctor made an examination and urinalysis and diagnosed inflammation of the kidney or nephritis, which was a serious condition. The insured died on June 8, 1938 of cerebral hemorrhage.

It is contended that defendant having proved that the insured had been an inmate of a hospital and had been attended by physicians for a disease within two years prior to the issuance1 of the policies, the burden of proving such hospitalization and medical attention was not for a “serious disease” rested on the plaintiff. Plaintiff, to establish a prima facie case, introduced the policies in evidence and rested her case, and on behalf of the defendant testified to identify her signature on the proof of death submitted to the company. Ethel Mahoney, record librarian of the Jackson Park Hospital, produced the hospital records pertaining to Rudolph Storeh, which records were received in evidence and disclose history given by the insured to Dr. Sexton, the interne, on May 21,1937, in which the insured stated that he had been troubled with dragging cramp-like pains in his right side since 1932, which pains would radiate to the back especially in the right lumbar regions; that he had passed stones and had had blood in his urine; that he had been in the County Hospital two months previous where X-rays disclosed shadows suggestive of stones. Also, Dr. Margaret M. Buck, a physician and surgeon practicing in Chicago since 1916, attended the insured on May 21,1937. She found the insured in bed suffering severe pain as hereinabove stated, and was given a history by insured of having been in the County Hospital two months previous; that he had X-ray work done which indicated he had renal calculi, or stones in the kidneys. The doctor made an examination of his abdomen and right lumbar region. She found severe pains were radiating down the thigh where he was extremely sensitive. She made a diagnosis of renal calculi and sent him to the Jackson Park Hospital, where she continued her examination. A urinalysis disclosed albumin and innumerable pus and blood cells. His blood pressure was 175 systolic over 112 diastolic. It was not normal for his age. Upon these findings the doctor made a diagnosis of renal calculi, which is a serious disease or condition. Insured had no finances to remain under the doctor’s care at the hospital and she recommended that he go to the County Hospital and continue to be hospitalized because he was in a serious condition. He left the Jackson Park Hospital on May 22, 1937.

Dr. Charles L. Schmidt, a physician and surgeon since 1908 testified, on behalf of the defendant, that he was called to insured’s home on September 6, 1937 and found the insured suffering from pain in the back. He made an examination of the insured and made a urinalysis which disclosed albumin. He made a diagnosis of inflammation of the kidneys or nephritis. This was a serious condition, and he gave him a diet and prescribed for him.

The defendant tendered in open court to plaintiff the sum of $32, being the amount of premiums paid with interest to date of trial, which tender was refused.

Reference to such institutional and medical treatment or attention so had by the insured was not endorsed on the policies, no endorsements of any kind being entered in the “space for endorsements.” The defendant proved that the insured had been a patient at, or- an inmate of, a hospital for treatment of a physical disease and had been attended by physicians within two years prior to the issuance of the policy.

Therefore, from the evidence introduced in the record by defendant it appears that: (1) on May 21,1937, about one month prior to the issuance of the first policy and four months prior to the issuance of the second policy, the insured was (a) attended by Dr. Buck and (b) was an inmate of the Jackson Park Hospital on May 21st and 22nd of that year; (2) the history given by the insured disclosed that the insured was an inmate of the County Hospital two months prior to May 1937 where X-rays were taken which revealed shadows suggestive of stones; (3) on September 7, 1937, which was less than a month prior to the issuance of the second policy, the insured was attended by Dr. Schmidt.

It is contended by the defendant that under the terms of the policy, the burden of proving that such hospitalization and medical attention were not for a “serious disease” rested upon the plaintiff. The plaintiff presented no evidence upon this issue. It is pointed out that no reply was filed to the affidavit of defense, and urged that under the rules of the municipal court (rule 26 (2) ) the matters therein alleged were confessed, and that it became the duty of the court, under the law, to find the issues for the defendant. Defendant cites Davis v. Metropolitan Life Ins. Co. (Ohio App.), 31 N. E. (2d) 98, where the court, in construing a policy similar to the one in question, said:

“Medical attendance within two years prior to the date of issue of the policy (June 4, 1937) having been shown by the defendant, it rested. In order to recover under the above-quoted terms of the contract, it then was incumbent upon the plaintiff to show that such medical treatment or attention was not for a serious disease.
"This plaintiff did not do. Instead, plaintiff moved for judgment and the trial court, erroneously refusing to consider and completely ignoring the terms of the contract, granted plaintiff’s motion . . . the judgment of the said Municipal Court is reversed, for the reason that the burden of showing that decedent was not treated for a ‘ serious disease ’ rests upon the plaintiff under the terms of the insurance contract, and the court erred in rendering judgment for plaintiff on motion”. Defendant further cites the case of McDermott v. Metropolitan Life Ins. Co. (Misc.), 8 N. Y. S. (2d) 896, where the court in reversing a judgment on a policy likewise similar to the one in question, said:
“In our opinion, under the new clause if the insurer shows attendance by a physician, or other breach of condition, and no reference to the condition by endorsement in the policy it establishes prima facie breach of the policy condition. The new agreement then requires the claimant to show that the treatment or attention rendered by the physician was not for a serious disease, injury, physical or mental condition.” This last mentioned case was unanimously affirmed by the Appellate Division of the Supreme Court of New York, First Department. In Grant v. Metropolitan Life Ins. Co., 194 S. C. 25, the trial court directed a verdict for the defendant upon a showing that the insured had been a patient in an institution for treatment for physical disease and attended by a physician within two years prior to the date of issuance of a policy similar to the one in the case at bar. Later the trial court granted a new trial on the ground that there was some evidence of waiver on the part of the defendant and that waiver was a question for the jury to pass upon. In reversing the trial court and remanding the cause for entry of judgment for the insurer, the Supreme Court held that failure to disclose the institutional and medical treatment, under this policy, amounted to a misrepresentation of facts material to the risk; that this form of contract is not ambiguous ; that the contract is not against public policy or invalid; and that where one applies for life insurance and has been treated for a serious ailment within a two year period such treatment is material to the risk. And other decisions have been called to the attention of this court upon like questions as presented in this case.

Upon the showing of the attendance of the insured by Dr. Buck and his hospitalization in the Jackson Park Hospital, as above set forth, counsel for defendant moved the court to rule and here contends that the burden then rested upon plaintiff to prove that such medical attendance and hospitalization was not for a serious disease. The court ruled against this motion. For the reason of the ruling of the trial court on this motion, the defendant proceeded to prove that such hospitalization and medical attention was for a serious disease, as appears from the facts as set forth.

The plaintiff, however, points to the fact that Dr. Buck, called as a witness by defendant, revealed on cross-examination that she only saw insured on May 21, 1937, that she asked him about a pain in his back, that as a result she diagnosed the insured’s ailment as renal calculi, that she never confirmed her diagnosis by X-ray or otherwise, that she did not have the insured under her care long enough (less than 24 hours) to confirm her diagnosis. Further, that at the Jackson Park Hospital Dr. Buck made a gastrointestinal examination and found nothing wrong with the insured. Dr. Buck also made various examinations and tests and found nothing wrong with the insured. Plaintiff calls attention that the witness, Dr. Charles L. Schmidt, testified that he made a cursory examination upon the insured September 6, 1937 and that he diagnosed the illness as renal calculi, and that Dr. Schmidt did not remember what he did or what he prescribed, if anything; that he only saw insured on September 6, 1937, which date was taken from a record that he looked at one year before the date of his appearance in court.

The plaintiff in reply says that defendant cites the two-year clause in the policies and further says that the burden of proof shifts to the plaintiff upon the presentation of the hospital report, and cites a number of cases to support its contention, and contends that in each case cited by defendant the insured was treated from five to thirty times by a physician and treatment prescribed. It is pointed out that in the case at bar the insured was seen by two physicians; that each physician saw the insured once; and that neither physician prescribed or proved his diagnoses. The plaintiff contends that when defendant rested its case and the court ruled against it, that defendant waived any right to stand on the two-year clause in the policies by continuing to offer further proof; that under the two-year clause in the policies, if plaintiff had put on proof, she would have had to use the same doctors, same hospitals, reports, etc., to show that the insured did not suffer from a serious disease; and points out that the trial judge commented on the shortness of the time the insured spent in the hospital (one day). Plaintiff further suggests that defendant made no effort to introduce records or X-rays from the County Hospital, since defendant knew none were ever taken or made, notwithstanding which defendant relied on the fact that in the history the insured received treatment and had X-rays taken at the County Hospital two months prior to May 1937. It is further suggested that the effort was made to prove that insured was suffering from a serious disease, but that nowhere or at any time have either Dr. Buck or Dr. Schmidt shown where any medicine was prescribed or treatment given; that Dr. Buck testified that she found nothing wrong with any of the organs of the insured, that pulse, temperature, respiration, etc. were all normal; that Dr. Schmidt was vague about all of his testimony and did not remember much, if anything, about any prescription or treatment. The case of Freise v. Metropolitan Life Ins. Co., 206 Ill. App. 404, is cited by plaintiff for the rule that forfeiture of life insurance policies are not favored and will never be enforced unless the evidence is clear that such was the intention.

It is apparent from the facts appearing in this record that insured was suffering from some ailment and that it was necessary that the doctors be called in to pass upon his condition. The question here is whether the conditions of the policy were violated. We find from an examination of the policies that if within two years prior to the issuance of the policies, the insured had been a patient or inmate of any institution for treatment of physical or mental disease or had been attended by a physician, the contract is voidable unless (1) reference to such institutional or medical treatment or attendance has been endorsed on the policies or (2) unless it be shown by insured or any claimant that such institutional or medical treatment or attention was not for a serious disease. The plaintiff cannot recover unless it appear that such medical treatment and attendance by physicians was not for a serious disease. The facts and evidence introduced established that insured was suffering from some ailment which required the attendance of two physicians who examined him, as we have already indicated, and advised hospitalization, as the result of which advice insured was taken to the Jackson Park Hospital. Then, insured being unable to pay the expense, he was advised to go to the County Hospital.

Under the circumstances, we are of the opinion that the court erred in finding for plaintiff and entering judgment on the finding. The judgment will be reversed and judgment entered in this court for defendant for the recovery of the costs.

Judgment reversed and judgment for costs.

Burke, P. J., and Kiley, J., concur.


source: Caselaw Access Project

author: Mr. Justice Hebel

license: Public Domain

text:
    Wilbur L. Martin, Appellee, v. John C. Blackburn et al., Defendants, Rodkin’s Inc., Appellant.
    Gen. No. 41,754.

      Heard in the third division of this court for the first district at the June term, 1941.
    Opinion filed January 7, 1942.
    Rehearing denied January 28, 1942.
    Lord, Bissell & Kadyk, of Chicago, for appellant; Bruce S. Parkhill, of Chicago, of counsel.
    Gardner, Carton & Douglas, of Chicago, for appellee; Erwin W. Roemer, Donald P. McFadyen and William L. Fay, all of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

The plaintiff instituted this action at law against defendants to recover damages for personal injuries alleged to have been sustained by plaintiff as a result of the alleged intoxication of the defendant, John C. Blackburn. Blackburn was sued for assault, he was together with the other defendants joined under the Illinois Dram Shop Act.

Defendants, Morris Rodkin and Bodkin’s Inc., were joined as parties defendant on the theory that intoxicants sold to Blackburn in a tavern cafe operated by them contributed to his alleged intoxication. Defendants, William M. Crest and John A. Moir, trustees, and John Moir, were joined as parties defendant as the owners of the premises operated by the defendants, Bodkin’s Inc., and Morris Bodkin as a tavern cafe. Defendants, Crest and Moir, trustees, and John Moir, were not served with process and were dismissed.

At the close of the plaintiff’s case and on motion of plaintiff the trial court dismissed the action as to Morris Bodkin, individually. The trial court also denied the motion of defendant, Bodkin’s Inc., made at the close of plaintiff’s case, to instruct the jury to find the defendant, Bodkin’s Inc., not guilty; and denied a similar motion by said defendant made at the close of all the evidence. The jury returned a verdict finding the defendant John C. Blackburn guilty and assessing the plaintiff’s damages at the sum of $1,250, and a separate verdict finding the defendant Bodkin’s Inc., guilty and assessing plaintiff’s damages in the sum of $5,250. The trial court entered judgments for such amounts and costs on the respective verdicts. Thereafter, by agreement of counsel for plaintiff and defendant Blackburn, the judgment entered on the verdict of the jury against Blackburn was vacated and set aside by the court and the case dismissed as to defendant Blackburn, to which the defendant Bodkins, Inc., duly excepted. Thereafter, the defendant Bodkin’s, Inc., filed its written motions for judgment notwithstanding the verdict, for a new trial and in arrest of judgment. These motions were denied by the court. It is from the rulings of the trial court entering judgment on the verdicts and denying said motions that defendant Bodkin’s, Inc., appeals.

From the pleadings in this case it appears that Count I, as amended, alleges in substance that on December 22, 1939, the defendants William M. Crest and John A. Moir, trustees, and John Moir, were the owners of the building and premises known as 333 N. Wells street, Chicago, Illinois; that sec. 135, ch. 43 of Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 68.042], was in full force and effect; that defendants Morris Bodkin and Bodkin’s Inc., a corporation, operated a tavern and restaurant therein known as the Morris Bodkin Restaurant, and on said date sold intoxicants to defendant John C. Blackburn, causing him to become intoxicated; that as a consequence of said intoxication he committed an assault uppn the plaintiff, Wilbur L. Martin, with a butcher knife, injuring the plaintiff’s hand, fingers and arm, for which he demands judgment against all said defendants in the amount of $25,000. Count II alleges that on December 22, 1939, the defendant John C. Blackburn committed an assault upon the plaintiff with a butcher knife, injuring plaintiff’s fingers, hand and arm, for which he demands damages from said defendant Blackburn in the sum of $25,000.

Defendants, Morris Bodkin and Bodkin’s, Inc., filed an answer to this amended complaint in which the defendant Bodkin’s, Inc., admitted the operation of the restaurant and tavern, but the defendant Morris Bodkin denied it; and admitted the existence of the statute in question, but denied all other material allegations.

From the facts it appears that the defendant Bodkin’s, Inc. is a corporation, and owns and operates the restaurant and tavern at 333 N. Wells street, Chicago, known as the Morris Bodkin Restaurant. The facts as they appear from the evidence of witnesses are that during the afternoon of December 22, 1939, the defendant, John C. Blackburn, attended a drinking, “preholiday” party at the plant of his employer, the Thomas J. Webb Company, 416 W. Ontario street, Chicago. The party was held by several employees of the company, it being a mutual affair — the persons attending furnishing the refreshments. Defendant Blackburn stayed there about an hour and forty-five minutes and consumed four or five bourbon whiskey highballs, to which he helped himself. Blackburn left this party in a car owned and driven by one Grant Emerson Blalock and went to the restaurant and tavern owned and operated by defendant, Bodkin’s, Inc., arriving there at about 7:30 or 7:45 in the evening There he met or was joined by Melvin Anderson and Blalock, and while these three men were together at Bodkin’s restaurant and tavern they each had four to six drinks of bourbon whiskey. After being in the tavern about 45 minutes, they left, Anderson and Blalock separating from Blackburn.

When Blackburn was leaving, the rear bumper of his automobile caught on the front bumper of an automobile owned by Beynold Koeppen. Blackburn was unaware of this, it appears, due undoubtedly to the fact that the street was down grade. The cars became disengaged when Blackburn had traveled about 75 feet and was making the turn on Kinzie street. Koeppen’s car, a Willys, had enough momentum to carry it into a parked Plymouth car owned by a Miss Peggy Thomas. The resultant damage to the Plymouth car amounted to a caved-in door and a slightly damaged running board and fender, for which damage Blackburn paid the sum of $35 in satisfaction.

After this accident Blackburn parked his car near the Plymouth and walked back to Bodkin’s restaurant, where he inquired in a loud voice “Who owns the Willys car?” Someone came up to Blackburn and made some inquiry as to what he was yelling about and struck him in the face. Morris Bodkin also .came up to Blackburn and took him by the shoulders. The attention Blackburn received was due solely to the loud voice used when he inquired as to the ownership of the Willys car.

The plaintiff Martin arrived at Bodkin’s, Inc. sometime between seven and eight o’clock. He knew Beynold Koeppen, who was sitting in a booth, so, while waiting for one Murray, he sat with Koeppen. Koeppen owned a Willys car, and when he and plaintiff heard Blackburn in the front of the restaurant inquiring about the Willys car they both looked up and saw Blackburn holding his jaw. Koeppen and plaintiff went to the front part of the restaurant, and there Blackburn, who was unknown to them both, explained about the accident. All three men went to the corner of Wells and Kinzie, Blackburn in the lead, to examine the cars. When they got to the corner they found Koeppen’s car against the Plymouth. Blackburn and Koeppen had some conversation, the two cars were disengaged, and Koeppen and plaintiff drove the Willys to Bodkin’s restaurant and parked it. They found Blackburn in the restaurant when they went inside. Koeppen stood next to Blackburn at the bar and plaintiff next to Koeppen. There was considerable argument about the damage to Koeppen’s car, Koeppen demanding payment of Blackburn, he refusing because he thought the damage was too slight to bother about. After a few minutes, Martin suggested that Koeppen call the police, and while he did so, Martin took up a position near the front door. When Koeppen returned from phoning, he stood near the front door and Martin took up a position out on the walk beside Blackburn’s car. Blackburn went to the kitchen in the rear and returned with his hand under his coat. As he started to go out the front door, Koeppen tried to stop him and Blackburn pulled out a knife and held it in front of him as he started to back out the door and across the sidewalk towards his car. Koeppen called to plaintiff “Look out, he has a knife.” As Blackburn backed out of the restaurant and across the walk, plaintiff grabbed Blackburn by the arms from behind and a scuffle ensued, during which the men fell down twice. During the melee, plaintiff’s hand was cut by the knife.

When Koeppen reached Blackburn and Martin, Blackburn was holding the knife and his hand and arm were free. He made no attempt to use the knife. Koeppen took the knife away from Blackburn, and some unknown man arrived and proceeded to administer a severe beating to Blackburn, knocking him down at least three times, injuring his face, eyes and clothing and necessitating his being taken to the hospital. The cut received by plaintiff extended across the palm of his right hand, the palm being cut to the bone. He was operated upon, spent ten days in the hospital, has suffered some permanent impairment of the use of the hand, due to the severing of certain nerves and tendons. His doctor hill amounted to $350, and the hospital bill was in excess of $100, which was the proof that appeared in this record.

The statute under which this suit was brought provides in part as follows:

“Every husband, wife, child, parent, guardian, employer or other person, who shall be injured, in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person.” (Section 14, paragraph 135 of the Dram Shop Act, Ill. Rev. Stat. 1939, ch. 43, par. 135 [Jones Ill. Stats. Ann. 68.042].) The defendant contends that the plaintiff cannot recover damages in this case because the complained of intoxication of Blackburn was, as a matter of law, not the proximate cause of plaintiff’s injuries. It is further suggested that the construction of the Dram Shop Act by the Supreme Court, is that a plaintiff may not recover in a case brought under that act unless the intoxication was the proximate cause of the injuries complained of, and that, in order for plaintiff to recover damages from the defendant Rodkin’s, Inc., he must not only prove that Rodkin’s, Inc., served alcoholic liquor to Blackburn and Blackburn thereby became intoxicated, but he must also prove that such intoxication proximately caused the injuries of which plaintiff complains. The case of Baker & Reddick v. Summers, 201 Ill. 52, is cited, where the Supreme Court in part said:
“The statutory liability does not rest alone upon the sale or gift of liquor, but also upon the intoxication resulting from such sale or gift, and the consequent injury. Defendants would not be liable because they sold liquor to Summers or because the jury might deem such sale the effective cause of the injury, but would be liable on account of the sale and intoxication resulting from such sale, if such intoxication was the effective cause of the injury. ’ ’ Further in this opinion, the court said:
“It was proved that Summers was the husband of plaintiff and that he was killed by Marcum,- and there was no controversy about these matters. The questions in dispute were, whether there.were sales of intoxicating liquor by defendants to Summers or Mar-cum, or both; whether Summers or Marcum, or both of them, became intoxicated as the result, in whole or in part, of the loquor so sold, and whether such intoxication was the effective cause of Summers’ death. It was necessary for plaintiff to prove the sale of liquor, consequent intoxication, and that such intoxication caused the death of her husband. (Brannan v. Adams, 76 Ill. 331; Shugart v. Egan, 83 id. 56; Flynn v. Fogarty, 106 id. 263; Meyer v. Butterbrodt, 146 id. 131.) ” Appellant points to the facts developed from the witnesses from which it appears that Blackburn backed out of the door of defendant Bodkin’s restaurant with a knife plainly visible in his hand. Plaintiff was standing on the sidewalk. Blackburn, whose back was toward plaintiff, showed no intention of assaulting plaintiff. Plaintiff seized Blackburn from behind, and a scuffle ensued in which plaintiff’s hand was cut.

The plaintiff’s theory is, as appears from his brief, that this is a case of direct injury inflicted by “an intoxicated person” and not an action for damages arising “in consequence of” intoxication; and urge that ever since the early case of King v. Haley, 86 Ill. 106, it has been settled that this section of the Dram Shop Act provides two separate and distinct causes of action — one for direct injury inflicted by an intoxicated person, and the other for such damages as may arise in consequence of intoxication. (Whiteside v. O’Connors, 162 Ill. App. 108; Haw v. 1933 Grill, Inc., 297 Ill. App. 37.) Plaintiff further urges that it has likewise long been established that in the first type of action, where injuries result from the direct, affirmative act of an intoxicated person, the doctrine of proximate cause has no application, and cite in support of this suggestion the cases last above cited.

It does appear from the facts as established by the evidence that the defendant Bodkin’s, Inc., sold liquor to Blackburn as the result of which he became intoxicated and while intoxicated cut the plaintiff’s hand. It does not appear from the argument of the defendant that Bodkin’s, Inc., did not sell intoxicating liquor to the plaintiff nor does defendant contend that such sales were not made in the presence of Mr. Bodkin. It appears from the authorities cited that the court could properly have refused to submit to the jury the issue of proximate cause, but it was submitted along with the issues of contributory negligence and provocation. Significantly, this was done at the request of all of the parties to this lawsuit.

The defendant has taken the position that Martin’s conduct at the time was the proximate cause for these injuries, not the intoxication of Blackburn, and that it could not have been foreseen that as the probable result of the serving of the liquor to Blackburn, Martin would engage in a scuffle with him without any act of Blackburn toward the aggressor Martin. For this reason, it is urged, the alleged intoxication of Blackburn cannot be held to be the proximate result of plaintiff’s injuries. However, all of these facts as suggested by the defendant are facts for a jury and it was for the jury to determine whether Blackburn was the aggressor or Martin. Also, the jury should determine whether or not Blackburn was intoxicated and whether the intoxication was the result of the serving of liquor by Bodkin’s, Inc. All these facts were to be passed upon by the jury and the jury has done so. The rather unusual suggestion is made by the defendant that defendant did not assault plaintiff, and that Blackburn, to whom defendant sold liquor, did not assault or attack plaintiff; that the plaintiff seized Blackburn and assaulted him. It appears that Blackburn didn’t know plaintiff was approaching him from the rear, and it is urged that the act of plaintiff in seizing Blackburn’s arms was the proximate cause. Of course, we have to consider all the facts and determine whether Blackburn was intoxicated and from the facts as they appear in this record there was liquor sold by the defendant Bodkin’s, Inc. The only thing that plaintiff did was to seize Blackburn from the rear to prevent the use of the knife which Blackburn had got from the kitchen of Bodkin’s, Inc., which he carried out covered up by his coat. What was the purpose of this act of Blackburn in going to the kitchen and obtaining the knife and attempting to cover it up from anyone? His purpose must have been to use this knife if the situation presented itself. Plaintiff being in back of him seized him to prevent him from doing any damage with what we might call the butcher knife. There was evidence in this record which would justify the jury in reaching the conclusion that there was no occasion for Martin to assault Blackburn and that his only purpose was to prevent him from using the knife, and that in so doing his hand was cut and the injuries sustained which were complained of.

The defendant Bodkin’s, Inc., contends that the plaintiff cannot recover damages because the intoxication of Blackburn was not the proximate cause of plaintiff’s injuries, and further that the evidence shows that plaintiff did not, at and immediately prior to the time he sustained the injuries complained of, exercise due care for his own safety; and that under the law, plaintiff was not entitled to recover because Ms injuries were provoked by him or were due to his own negligence in assaulting Blackburn. The plaintiff answers these suggestions by contending that whether Blackburn’s intoxication was the proximate cause of plaintiff’s injuries, whether the plaintiff was in the exercise of due care for Ms own safety, and whether the plaintiff provoked the assault upon him, were all questions of fact properly left to the jury’s determination, and cite a number of cases on the point. Under the facts as they appear in this opinion and as we have stated, it was for the jury to pass upon these questions and we believe that under all the circumstances the jury was justified in reaching the conclusion that it did. It appears from plaintiff’s brief that the judgment against defendant Bodkin’s, Inc., is supported by the law and the evidence, and it is contended that any alleged irregularity in the verdicts of the jury in this case has been cured and was without prejudice to the defendant BodMii’s, Inc.

In considering this question, we have been guided by an opinion of the Appellate Court in the case of Eimer v. Miller, 255 Ill. App. 465, where the court said:

“It is further contended that the court erred in receiving the two separate verdicts and afterwards setting aside the verdict as to the defendant, Schumacher, and permitting the plaintiff to dismiss as to him. We think the practice followed was proper. Bartolai v. Willett Co., 255 Ill. App. 630 (Abst.); Lasley v. Crawford, 228 Ill. App. 590; Nordhaus v. Vandalia R. Co., 242 Ill. 166.” This conclusion of the Appellate Court has a bearing upon the facts as they are detailed in this opinion. As hereinabove stated, the jury in this case returned a verdict finding the defendant Blackburn guilty and assessing plaintiff’s damages at the sum of $1,250, and a separate verdict finding the defendant Bodkin’s Inc., guilty and assessing plaintiff’s damages in the sum of $5,250. Upon receiving the verdicts from the jury, judgments were entered on the respective verdicts. Subsequently, the court on the following day, by agreement of counsel for plaintiff and defendant Blackburn, the judgment entered against Blackburn was vacated and set aside and the case dismissed as to Blackburn, to which the defendant Bodkin’s Inc., duly excepted.

The defendant Bodkin’s, Inc., contends that the court erred in rendering judgments on the separate verdicts of the jury against the two defendants in different amounts and that the court did not correct its error by vacating the verdict and the judgment against the defendant, Blackburn. One of the cases called to our attention is that of Lasley v. Crawford, 228 Ill. App. 590, where the court said:

“Counsel criticise the action of plaintiff’s attorney in calling the occupants of the Rolfe automobile as plaintiff’s witnesses to prove plaintiff’s case as alleged against both defendants and, after verdict, dismissing the suit against the defendant Rolfe. The suggestion is made that there was collusion, or an improper understanding or agreement, between plaintiff or plaintiff’s attorney and Rolfe. We fail to discover any evidence in the record warranting the suggestion. And, under the law of this State, plaintiff had the right, if she saw fit, to dismiss the suit against Rolfe after verdict and take judgment on the verdict against the remaining defendant, Crawford. (Illinois Cent. R. Co. v. Foulks, 191 Ill. 57, 69; Postal Tel.-Cable Co. v. Likes, 225 Ill. 249, 265; Humason v. Michigan Cent. R. Co., 259 Ill. 462, 470.) ” The defendant, however, in answer to the decisions we have quoted, contends that the amended complaint contain two counts; One against the defendant Blackburn alone for assault and the other, Count I, against both defendants charging Blackburn with an assault and charging Bodkin’s, Inc., with responsibility for that assault by reason of the sale of liquor to Blackburn causing in whole or in part his intoxication, and suggest that the separate verdicts separately assessed by the jury against Blackburn and against Bodkin’s, Inc., were clearly erroneous, and cite Wanner v. Winters, 33 Ill. App. 149; Pardridge v. Brady, 7 Ill. App. 639. Defendant states that, while it is true that in cases where the independent acts of two joint tortfeasors have combined to cause the plaintiff’s injury and the jury separately assesses damages against each, the error in the verdict or verdicts may be corrected by appropriate action taken before the entry of judgment, such action may not be taken after judgment, and contend that by reason of the authorities that the court erred in entering the judgment against Bodkin’s, Inc. The defendant finally contends that the dram shop operator cannot be liable for more actual damages than were created by the act of an intoxicated person unless it be on the theory that the dram shop operator is guilty of some act warranting punitive or exemplary damages. However, we have examined the question as presented to this court and are of the opinion that the court in entering the judgments was justified by the law as well as the facts appearing in this record.

Further, the defendant contends that the remarks of ' the trial judge were of such a nature as to be prejudicial to defendant and to influence the jury in finding for the plaintiff. We have examined the remarks as they were detailed in the brief, but are unable to agree with the defendant that they were prejudicial to the defendant, being guided by the case of Anderson v. Interstate Business Men’s Accident Ass’n, 354 Ill. 538, where the court said:

“Defendant complains that the trial judge improperly examined witnesses and made prejudicial remarks during the course of the trial. A considerable latitude must be allowed the trial court in conducting a trial, and it is only where his conduct or remarks are such as would ordinarily create prejudice in the minds of the jury that they constitute ground for reversal. (Featherstone v. People, 194 Ill. 325; Schaffner v. Massey Co., 270 id. 207.) There were a large number of witnesses and the testimony was voluminous. While the trial judge at times exhibited impatience, we do not think his conduct was prejudicial or detrimental to a fair trial.” Further, in the case of Department of Public Works & Buildings v. Diggins, 374 Ill. 11, the court in part said:
"The rule is that while remarks of court made to or in the presence of the jury and having the force of an instruction or opinion on the evidence, may be ground for reversal, the trial court may properly give his reasons for ruling upon evidence and he should be accorded reasonable latitude in so doing. Not every unguarded expression of a judge stating his reason for his ruling can be treated as ground for granting a new trial. South Park Comrs. v. Ayer, 245 Ill. 402; Spohr v. City of Chicago, 206 id. 441; Birmingham Fire Ins. Co. v. Pulver, 126 id. 329.” In examining the matters complained of, we have reached the conclusion that the trial judge was careful to avoid any expression of opinion concerning the evidence and made his ruling fairly and impartially with a view only toward the expedition of justice. Two instructions were also given to the jury, one at the request of the plaintiff and one at the request of the defendants, each of which told the jury that they should not understand by anything said during the progress of the trial by the court or by any instruction given that the court had any opinion or had expressed any opinion concerning the facts in this case. The jury were told that it was solely and exclusively for them to find and determine the facts and that they must do so from the evidence. It would appear from these instructions that the jury
were to be guided by the facts, and they must so be guided by the evidence in the record.

The plaintiff contends that the damages awarded by the jury were reasonable, considering plaintiff’s pain and suffering and the permanent impairment of his right hand — he being right handed — and suggests that amount awarded clearly was not the result of passion or prejudice. It does appear from the facts that the plaintiff had received a serious injury and suffered a permanent impairment of his right hand, an injury which Dr. Graham testified could not get better and might get worse. As the result of the vicious cut he received, plaintiff must be extremely limited in the use which he can make of his hand.

We believe, therefore, that the damages awarded were fair and that the verdict of the jury did not result from passion or prejudice but only from the facts as they appear in this record. Under the circumstances, we are of the opinion that the court did not err, and, therefore, the judgment against the defendant Bodkin’s, Inc. for $5,250 is affirmed.

Judgment affirmed.

Burke, P. J. and Kiley, J., concur.


author: Mr. Justioe Hebel

text:
    Dorothy Stalzer, Appellee, v. William T. Blue et al., Defendants. Appeal of Ella L. Stevens, Appellant.
    Gen. No. 41,809.

      Heard in the third division of this court for the first district at the October term, 1941.
    Opinion filed January 7, 1942.
    Stevens & Stevens, of Chicago, for appellant, George M. Stevens, of Chicago, of counsel.
    Marston, Friedlund & Friedlund, of Chicago, for appellee; Emil N. Levin, of Chicago of counsel.
   Mr. Justioe Hebel

delivered the opinion of the court.

Plaintiff, the legal holder and owner of certain promissory notes, filed her amended and supplemental complaint for the foreclosure of a certain trust deed executed by the defendants William T. Blue and Lydia L. Blue, his wife, on or about April 6, 1931, to the Chicago Title & Trust Company, as trustee, to secure five certain promissory notes, executed by said defendants on the same date, totaling $10,000 making the defendant appellant, Ella L. Stevens, a party defendant, as one having or claiming to have some right, title or interest in or to the premises involved. The defendants, Blues, defaulted, as did Katherine J. Figuly, the alleged record owner of said premises.

The defendant appellant, Ella L. Stevens, filed her amended answer denying the execution and delivery of said notes and trust deed, and denying that there was any consideration therefor, and setting up therein that said Blues were at the time indebted to her, on a judgment in an amount of upwards of $13,000; that they were insolvent and that the alleged execution of said notes was a colorable transaction, made for the purpose of hindering and delaying appellant in the collection of her said debt, and for the benefit and protection of said Blues.

Plaintiff filed her reply to appellant’s answer denying generally the allegations of said answer, and subsequently the cause was referred to a master in chancery to take testimony and report. It is called to our attention that the master struck all of the evidence introduced by appellant, Ella L. Stevens, in support of her contentions from the record; that the master prepared his report, finding among other things that all of the material allegations contained in plaintiff’s amended and supplemental complaint, except as otherwise found in his report, were true and are sustained by the proofs; that there was due to the plaintiff the sum of $12,751.81, for which together with interest and costs, she had a valid and subsisting lien upon the premises herein involved, prior and superior to the right, title, interest and lien of all other parties hereto. Objections to the master’s report were filed by appellant, all of which were overruled by the master, and said objections were ordered by the court to stand as exceptions, and by the decree of foreclosure entered on February 27, 1941, pursuant to the recommendations of the master, were overruled.

It appears from the evidence that on February 8, 1929, the defendants, William T. Blue and Lydia L. Blue, for valuable consideration, executed and delivered to appellant, their four principal promissory notes, three in the sum of $1,000 each and one in the sum of $10,000. On or about April 6, 1931, the said Blues executed the notes in question here, totaling $10,000, four in the sum of $500 each, maturing one, two, three and four years after date respectively and one in the sum of $8,000, maturing five years after date, with interest until maturity at 6 per cent per annum and with interest after maturity at 7 per cent per annum, and secured by the trust deed sought to be foreclosed. At the time of the execution of said notes and trust deed, taxes for the years 1929 and 1930 were unpaid and neither taxes for those years, nor subsequent years have since been paid and the premises have been allowed to go to forfeiture for nonpayment of special assessments levied against them, the total of said taxes and assessments, up to the time of the filing of the complaint herein, including interest, penalties and costs, being in excess of $5,000. It appears that no part of the principal of said notes due on the 6th day of April in the years 1932, 1933, 1934, 1935, 1936, respectively, nor any of the interest due thereon, was paid by the Blues; that they occupied a portion of the premises as their homestead, during the greater portion of said time, and at all times collected and used all of the rents, issues and profits accruing from said premises.

Shortly after the execution of said notes and trust deed, the Blues, who for some time prior thereto had been the owners in fee simple of various pieces of property described in defendant’s, Ella L. Stevens, answer, the last described being that conveyed by the trust deed in the complaint mentioned, conveyed by a deed in trust known as Phillip State Bank and Trust Company Trust No. 1511, to said company all their right, title and interest therein.

On the 6th day of April, 1940, Herbert H. Mitchell, the receiver appointed in the creditor’s suit instituted by appellant against the said Blues, served notice upon said Blues that on the 10th day of April, 1940, he would appear before his Honor, Judge William V. Brothers, and ask that an order be entered fixing the reasonable rental of the premises occupied by William T. Blue, and requiring him to pay such rent so fixed by the court, to such receiver and that in default thereof that a writ of assistance issue against him, and that a rule be entered upon said Blue to show cause, if any he might have, why he should not be held in contempt of court for the removal and disposition of certain fixtures from the premises, without notice to or consent of the receiver and for his refusal to turn over certain personal property to said receiver, as required by the order of the, court theretofore entered in said case. The Blues appeared in response to said notice and asked for and were granted a week within which to answer said motion; whereupon said William T. Blue contacted George M. Stevens, one of the attorneys for appellant, and proposed to him that he make payments to said Stevens each month, to be applied on this defendant’s judgment, on condition that the receiver be discharged and he and his wife be left in possession and control of the premises, which proposition was not accepted. Immediately thereafter a complaint for foreclosure of the trust deed in the amended and supplemental complaint mentioned, was filed by plaintiff in the superior court of Cook county on the 29th day of April, 1940, and on the same day notice was, mailed to William T. Blue and Lydia L. Blue and Katherine Figuly, for appearance on the following morning for the appointment of a receiver for said premises, and pursuant to said notice, one Ernst C. Nagel was appointed receiver of said premises, without any notice to appellant or to said Mitchell, receiver in the circuit court creditor’s suit.

The appellant, Ella L. Stevens, seeks to recover in this proceeding, stating that on February 8, 1929, the defendants, William T. and Lydia L. Blue, for valuable consideration, executed and delivered to appellant their four principal promissory notes totaling $13,000; that on May 22, 1931, William T. Blue, in response to a letter received from appellant stating that she was desirous of having the interest and principal on his notes paid, wrote that it was impossible under the present conditions, as he was financially embarrassed; that after repeated efforts by appellant to procure payments on account of said indebtedness, to no avail, she recovered a judgment at law against said Blues on November 29, 1933 for $15,188.00 and costs, upon which judgment execution was duly issued and returned by the sheriff of Cook county, wholly unsatisfied, which judgment is still in full force and effect, and is a valid and subsisting lien against the property herein involved.

It has been suggested by the defendant appellant, Ella L. Stevens, who is here on appeal, that the plaintiff in this action is not competent to institute this foreclosure because plaintiff is not the legal owner and holder of the notes. However, when we come to examine the trust deed we find its provisions to be that a foreclosure may be maintained by the legal holder of the notes, and the owner being a woman eighty-four years old, residing downstate, who is in ill health and unable to walk, it is proper to file the foreclosure suit by her nominee as the legal holder. This contention of plaintiff seems to answer the complaint of appellant as to plaintiff not being the proper person to institute the suit. Plaintiff cites Bourke v. Hefter, 202 Ill. 321, on this very question where the Supreme Court held that although plaintiff was a nominee for the actual owners, and testified that the notes were transferred to him for the purpose of commencing foreclosure proceedings, and that he had paid nothing for them, nevertheless the plaintiff was the legal holder of the notes and therefore was entitled to maintain foreclosure.

As we have indicated, the real owner of the mortgage, Anna Y. Swanson, was an aged woman in ill health and unable to get around, and a resident of Princeton, Illinois, and, therefore, if the notes and trust deed were placed in the hands of plaintiff for foreclosure, that is sufficient under the authorities. In Replogle v. Scott, 299 Ill. App. 270, the court quoted with approval the following language from Witting v. Claras, 274 Ill. App. 449, as follows:

“The notes and trust deed having been produced by complainant, and the defendants being entitled to interpose any defense they might have, and no defense having been interposed, they were in no wise injured. Plaintiff was the legal holder of the notes and entitled to maintain foreclosure.”

In this action, in the proceedings before the master in chancery, the trust deed and notes described in the complaint were introduced in evidence and made a prima facie case. If the defendant appellant had any evidence to offer on the question that would be a defense to the right to foreclose, such defense must have been alleged and proved by her. The trust deed and notes in this action are in the usual form of documents of that character, and the trust deed was duly acknowledged before a notary public and recorded in the office of the recorder of deeds. Both the trust deed and the notes bear the identification certificate of the Chicago Title & Trust Company, as trustee under its certification No. 79650. The trust deed and notes were duly executed and acknowledged, identified by the trustee named in the trust deed, the trust deed filed for record in the recorder’s office, and their introduction in evidence made a prima facie case as to consideration, execution and delivery of same. Attention is called to the case of Foreman Trust & Savings Bank v. Cohn, 342 Ill. 280, where the Supreme Court stated: “When defendant in error introduced in evidence before the master the trust deed, notes and the other preliminary proofs, such evidence made a prima facie case sufficient to entitle it to a decree of foreclosure. The burden of proof was then upon plaintiffs in error to prove the defense set up in their answer or to prove the allegations of their cross-bill by clear and convincing evidence.” The case of Boudinot v. Winter, 91 Ill. App. 106, pertains to the point involved, where the court held:

“When appellee introduced in evidence the notes and mortgage, as he did, the same being in his possession and assigned to McKee, a prima facie case for the foreclosure thereof was made against appellant, and the burden of proof was upon him to show the arrangement with McKee, set forth in his answer, was true, and that McKee had received rents belonging to him, or to show some other affirmative matter of defense, having the effect to discharge the obligation of the note and mortgage. ’ ’ In the instant case, plaintiff called Charles H. Coll, president of the First State Bank of Princeton, Illinois, who testified that he had known Anna Swanson, the owner of the mortgage, for many years; that she formerly owned the property described in the trust deed being foreclosed; that it was her former home; that when she sold it, she took back a mortgage as part payment; that she was old and in ill health and unable to get around; that his bank and he personally handled most of her business affairs. He testified to the lengths to which he had gone in attempting to collect principal and interest, and as to the interest which he had been successful in collecting, and that finally he forwarded the papers to Chicago attorneys with directions to them to foreclose. He brought with him numerous letters he had received, from Blue in connection with the mortgage, which were received in evidence. In considering the foregoing testimony, the master remarked that “It would all seem to me to be just about the right kind of evidence to bring into a case to show that the mortgage is a good mortgage and not what it is suspected to be.” The appellant, Ella L. Stevens, suggests that the testimony of plaintiff’s witness, Coll, was stricken by the master, but when we consider the abstracts on this question, while it is true that a part of his testimony was stricken, still the remainder, which we have quoted, was permitted to stand. The master in ruling upon appellant’s motion to strike all of the witness Coil’s testimony allowed the motion as to the conversation with Blue, but allowed his testimony to stand with regard to what Mr. Blue had actually done with regard to making payments and so forth, on the mortgage; and except, too, the motion was allowed as to his testimony regarding “these extension agreements, about which he knows nothing, and the conveyances, which he said was based on information that was given to him by Mrs. Swanson.” The further contention is made by plaintiff that the rulings by a master in chancery as to admissibility of evidence are final, and cannot be attacked on appeal, unless exceptions to the master’s ruling on the evidence are specifically preserved and submitted to the chancellor for consideration, and the fact is pointed out that the only evidence offered by defendant appellant consisted of pleadings and a decree in a suit to which plaintiff was not a party, and correspondence between two defendants, all of which it is contended the master properly excluded. It is further contended, however, that be the master right or wrong, in excluding defendant’s evidence, defendant cannot raise the question in this court, for the reason that she failed to take any objection or exception to the master’s ruling on the admissibility of the evidence and failed to submit the question to the trial court. In support of this contention, plaintiff cites Northern Trust Co. v. Sanford, 308 Ill. 381, wherein the Supreme Court, after stating that the master’s rulings on the admissibility of evidence were erroneous and improper, nevertheless held that even though the master erred, the question could not be raised on appeal, because specific objections to the master’s rulings on evidence had not been made and presented to the court below. The above case was cited with approval in the recent case of Dunlavy v. Lowrie, 372 Ill. 622, wherein the following language was used:
“Defendants’ claim that the chancellor erred in admitting improper evidence offered by plaintiff over their objection does not require consideration. The objections to the master’s report which stood as exceptions before the chancellor disclose that an objection was taken to the conclusions of the master from the testimony but not to the admission of the evidence itself. It is necessary to object to the ruling of the master and obtain the court’s ruling on the master’s action in order to take advantage of alleged errors in the admission of evidence. (Seeley v. Rowe, 370 Ill. 336; Northern Trust Co. v. Sanford, 308 id. 381.) If, as here, the point is not brought to the chancellor’s attention, it cannot be reviewed.”

The master ruled that all evidence offered by defendant be stricken from the record. Defendant must be held to have agreed that the master’s rulings on her evidence were correct, inasmuch as she did not file either objections or exceptions thereto, nor did she ask the chancellor to review the master’s rulings on questions of evidence. The defendant having made objections to the master’s report, which stood as exceptions before the chancellor, as to the conclusions of the master from the testimony but not to the admission of the evidence itself, we are of the opinion that under the circumstances the court did not err in overruling defendant’s objections to the master’s report.

The master in his report found ‘ ‘ That the defendant Ella L. Stevens sought to prove that the plaintiff Dorothy Stalzer held the notes for the benefit of William T. Blue as the genuine owner of the same. The Master, however, finds that the evidence offered by the defendant Ella L. Stevens, wholly failed to support this contention.”

There are other questions called to our attention but we are of the opinion that the evidence supports the plaintiff’s' amended complaint to foreclose, and that, there being no evidence in the record to support the allegations of the defendant appellant, Ella L. Stevens, in her answer, the master’s report and the court’s rulings on the objections thereto were proper, and that the court properly denied the exceptions of the defendant, Ella L. Stevens. Under the circumstances as we have them here, the decree is affirmed.

Decree affirmed.

Burke, P. J., and Kiley, J., concur.


text:
    Lamons and Company, Plaintiff. Frank G. Karg and William H. Regnery, Appellants, v. American Case Iron Pipe Company, Appellee.
    Gen. No. 41,815.

      Heard in the third division of this court for the first district at the October term, 1941.
    Opinion filed January 7, 1942.
    Rehearing denied January 22, 1942.
    Charles A. Phelps and Simon A. Zelden, both of Chicago, for appellants.
    Pam, Hurd & Reichmann, of Chicago, for appellee; George W. K. Snyder and J. Herbert Burke, both of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal from the denial of a motion, based on a verified petition, to vacate an order of dismissal by the court on a no progress call without notice to the parties while the case was pending before a master in chancery. Lamons and Company, plaintiff in this action, filed a bill in equity on August 22, 1927, charging that the defendant had sold to it for resale water fund certificates of the city of Sesser, Illinois, and had given to it a written prospectus containing statements which were false, and had made oral statements which were also false; that it had purchased the certificates relying on the false representations in the statements; that the certificates were worthless, and prayed for rescission of the contract and the repayment to it of the purchase price, together with interest thereon.

This bill was answered by defendant, and the cause referred to Ninian H. Welch, master in chancery. Testimony was taken, including depositions, and various exhibits offered, all on behalf of plaintiff. The master made a report which was amended on objections by defendant. At or about the time of the issuance of the master’s report, which was amended, Lamons & Co. having surrendered its charter, the interveners, Frank G. Karg and William H. Regnery (purchasers of bonds from Lamons & Co.), pursuant to leave of court, filed their intervening petitions. The defendant answered and the issues were referred to the same master. It is suggested that approximately 400 pages of testimony were taken and various exhibits offered in support of the intervening petitions. Objections were interposed by defendant to the use by intervenors of the depositions which had previously been taken, which objections were taken under advisement by the master and were retained by him and no decision made thereon. While the matter was so held by the master, on November 15, 1937, Judge Burke of the circuit court entered the following order:

"On motion of the Court, this cause being now regularly reached and called for trial on the No Progress Call and the Complainant now failing to prosecute the suit, it is ordered that this cause be, and the same is hereby dismissed for want of prosecution, without costs.”

On June 1, 1939, intervenors and another intervening petitioner, who has not appealed, filed a petition in the nature of a writ of error coram nobis, under section 72 of the Civil Practice Act [Jones Ill. Stats. Ann. 104.072], seeking to vacate said order of dismissal. On September 2, 1939, defendant filed, under section 45 of the Civil Practice Act, a motion to dismiss said petition on the ground that it was substantially insufficient in law, in failing to allege diligence on the part of intervenors. Thereafter, on December 4, 1939, intervenors amended their said petition, and on December 14, 1939, defendant filed a further motion to dismiss on the ground, inter alia, that said amended petition was substantially insufficient in law in failing to allege diligence, which motion was denied on November 7, 1940. Thereafter, on November 19, 1940, defendant filed its answer to said amended petition admitting certain allegations, denying others, and stating three affirmative defenses; first, gross - negligence and laches of intervenors; second, the prior determination of the matter in favor of defendant, which was binding upon intervenors; third, the change of position suffered by defendant because of delay. On December 20, 1940, defendant amended its answer specifying particularly wherein intervenors were guilty of gross negligence and laches and on December 23, 1940, defendant filed a further amendment alleging the death of the only officer of defendant who had any knowledge of the construction of the water works system at Sesser and the financial arrangements in connection therewith, to which amended answer there was no replication filed by intervenors.

The facts appearing in this record are that - on December 23, 1940, the amended petition seeking to vacate the order of November 15, 1937, dismissing the cause for want of prosecution, and the amended answer thereto came on for trial. Intervenors, in their opening statement, stated to the court that they were proceeding on a motion in the nature of a writ of error cor am nobis under section 72 of the Civil Practice Act, and offered in evidence the affidavit of Simon A. Zelden that he checked the record in the clerk’s office and found the cause had been dismissed for want of prosecution on November 15, 1937; that the record showed the cause was pending on that date before the master, awaiting a decision on objections made by attorneys for defendant to certain matters. Intervenors called Charles A. Phelps, one of their attorneys to testify as a witness on their behalf, who testified that hearings were had before the master; that on September 28, 1934 he was ready to close proofs, except that he desired to offer certain depositions previously taken on behalf of complainant, to which offer defendant objected; that in May of 1936, he made a trip to Sesser to obtain certain exhibits taken from the master’s office; that he was in-the master’s office several times after July 15, 1936, to ask when some decision might be expected. Intervenors offered no other evidence in support of their amended petition.

Defendant in support of its first affirmative defense, namely, gross negligence and laches by intervenors, introduced its exhibit 2, being the docket sheet kept by the master in this cause showing no proceedings before bim from October 30, 1934 to June 5, 1936, and no proceedings subsequent to July 15, 1936; also its exhibit 7, being a notice by the attorney for defendant that he would appear before the master on May 18, 1936 and ask for a rule to close proof, which bore the master’s notation of the entry of such a rule, effective June 5, 1936. Further, in support of said affirmative defense, defendant offered the testimony of Sol A. Hoffman, a former associate of the master, to the effect that no proceedings were had before the master from October 30, 1934 to June 5, 1936, and to the effect that the last entry on the docket sheet of the master was July 22, 1936. In further support of this defense, defendant obtained the admission of Mr. Phelps, attorney for intervenors, on cross-examination that he had not served any notice of a motion asking the master to make his report or for a court rule on the master to file his report.

In support of its second affirmative defense, namely, the prior determination of the matter in favor of defendant, the defendant introduced in evidence its exhibit 3, being the master’s preliminary report finding for defendant; its exhibit 4, being its objections to certain findings of fact in the preliminary report; its exhibit 5 disclosing marginal notations of the master on certain pages of his preliminary report, eliminating said findings of fact pursuant to said objections; and its exhibit 6, being the master’s final report finding in favor of defendant and recommending that the cause be dismissed for want of equity.

Then, in support of its third affirmative defense, namely, the adverse change of position suffered by reason of the delay in the prosecution of this cause, defendant introduced its exhibit 1, being the death certificate of Robert R. Banta; and the stipulation with respect to the death of Paul A. Ivy. The testimony of Earl N. Mattson, an employee of defendant, was offered as to the fact that Banta and Ivy were the only employees of defendant who would have had knowledge of the transaction.

On January 24, 1941, the court handed down a memorandum order finding in favor of defendant on its first affirmative defense and on its second affirmative defense, the court denying in said order the prayer of the amended petition to vacate the order of November 15, 1937, dismissing the cause for want of prosecution.

The first question presented is whether a court of chancery can vacate the order of dismissal entered herein. The case of Horner v. Horner, 37 Ill. App. 199, is cited, wherein the court said:

“It is well settled that the power of a court to amend the record at a subsequent term is confined strictly to cases where there is something in the record to amend by, and to cases where it is patent on the face of the record that there has been a misprision or error of the clerk.
“Where from the entire record it clearly appears that the judgment as entered is not the sentence which the law ought to have pronounced upon the facts established by the record, the court will act upon the presumption that the error is a clerical misprision rather than a judicial blunder, and the judgment will be set aside by an amendment nunc pro tunc. Ives v. Hulce, 17 Ill. App. 30, and authorities there cited.” The court’s power to amend is dependent upon the record. The question is largely dependent upon whether the trial court had jurisdiction after the term time had elapsed. It is apparent from the record that at the time of dismissal this cause had been referred to the master, first by Lamons and Company under the original bill, second on the intervening petitions filed by interveners, and a third time on the petition filed by Babcock, and that the matter had not been reported on by the master.

The defendant appellee points to the suggestion made by interveners under point I of their brief, namely, that where from the entire record it clearly appears that the judgment as entered is not the sentence which the law ought to have pronounced upon the facts established by the record, the court will act upon the presumption that the error is a clerical misprision rather than a judicial blunder and the judgment will be set aside by an amendment nunc pro tunc. While it is admitted by defendant appellee that intervener’s suggestion correctly states the law, yet it is contended that such suggestion is wholly inapplicable to the case at bar because intervenors do not seek an “amendment nunc pro tunc” but rather to have the order dismissing the case for want of prosecution set aside and held for naught. In the case of Ives v. Hulce, 17 Ill. App. 30, cited by intervenors, it appears that the jury had found the defendant guilty and assessed damages of $175. At the next term, after denying a motion for a new trial, judgment was entered that plaintiff recover damages of 1$. The clerical error in entering judgment for 1$ was subsequently discovered, and a motion made to amend the judgment, which motion was allowed. On appeal from the order allowing the amendment, the court held that a final judgment may be corrected at a subsequent term “in any matter of form where a clerical error has intervened . . . .” The court went on to say:

“There is, however, no authority to correct judicial errors under the pretense of correcting clerical errors, and to entitle a party to an order amending a judgment or decree, he must establish that the entry as made does not conform to what the court intended it should be when it was ordered.” On this question several cases have been cited by the intervenors hav-. ing to do with amendments to the court’s order after term time, but the question here is whether the court has power to set aside and hold for naught its order at the second term. In Ernst Tosetti Brewing Co. v. Koehler, 200 Ill. 369, the Supreme Court affirmed the decision of the Appellate Court in refusing to recognize an amendment to the decree by the superior court, after the term, where the amendment involved a change in the substance of the decree.

As a general rule a court has the inherent power to dismiss a cause for want of prosecution where plaintiff is guilty of negligence and laches in the prosecution of the cause. In the instant case the judge who examined the record in this cause on November 15, 1937 found that it had then been pending for over 10 years and that there had been no proceedings of record before the court subsequent to February 20, 1934, and was in our opinion justified in reaching the judicial determination that the case had been abandoned by complainant and intervenors and was properly the subject of an order dismissing the same for want of prosecution. The dismissal of the action was made under rule 22, section 5, of the rules of the circuit court of Cook county, which provides for a call on a regular calendar of all cases in which no action has been taken within one year and provides further that if plaintiff is not ready for trial the cause shall be dismissed for want of prosecution.

As is well suggested by defendant, when a cause is dismissed for want of prosecution, while there is usually no determination on its merits, nevertheless the court, in entering such an order, does make a judicial determination, namely; that the plaintiff has been guilty of negligence or laches in prosecuting the suit, which from the record in this case is apparent.

Intervenors raise the question and question the authority of the court to enter the order of dismissal for want of prosecution for the reason that it was entered without notice, but when we look to intervenor’s pleadings and evidence it does not appear that the order was entered without notice. The lack of notice is raised for the first time by intervenors in this court, no allegations appearing in intervenors ’ pleadings nor any evidence having been offered on that question, therefore, the point must be considered to have been waived under rule 7 of this court. Rule 25, section 2, of the rules of the circuit court of Cook county provides for publication of notice of all calls to be heard by the court.

The order, as a matter of fact, was proper because intervenors were guilty of negligence and laches in the prosecution of their intervening petitions. The trial court, in commenting on intervenors’ negligence and laches, said: “No sound excuse or reasonable explanation tending to absolve the intervenors from such negligence was offered to this court. Their delay was an affront to the dignity of this Court and disruptive of the orderly procedure and process of this Court and cannot, under the facts shown, and the circumstances existing in this cause, be sustained or have the approval of this Court.” The order, as a matter of law, was proper since the court had jurisdiction of the subject matter, the parties were properly before the court and the order was germane to the action.

Intervenors had the right to claim that the affirmative defense of gross negligence and laches set out in the amended answer of defendant to intervenors’ amended petition was not a good defense and was, therefore, defective in substance. Intervenors had the right to so claim by filing a motion to strike or to dismiss defendant’s amended answer under section 45 of the Civil Practice Act, Ill. Rev. Stat. 1941, ch. 110, par. 169 [Jones Ill. Stats. Ann. 104.045], specifying that such defense was substantially insufficient in law. This they failed to do and, by reason of this failure, intervenors are held to have waived any claim, which they might have had, that this defense was defective in substance by virtue of section 42(3) of the Civil Practice Act, Ill. Rev. Stat. 1941, ch. 110, par. 166(3) [Jones Ill. Stats. Ann. 104.042], .which provides that “all defects in pleadings, either in form or substance, not objected to in the trial court, shall be deemed to be waived.”

The question of negligence or diligence of intervenors was properly involved in the motion to reinstate, and, of course, the question is limited to the facts as they appear in the pleadings. On the question of negligence, the case of Francke v. Eadie, 301 Ill. App. 254, is cited by appellants. However, in that case there had been no reference to a master. The cause was dismissed while the court, itself, still had under consideration certain demurrers. In such a situation the parties have no control over the court and cannot be charged with its delay. In the case at bar, however, the parties had control over the situation and could have proceeded to procure a rule on the master to prepare and file his final report, which fact was pointed out by the trial court in its memorandum decision.

It is urged that intervenors have misconceived their remedy, and that, if the order dismissing the cause for want of prosecution was erroneous in fact, intervenors should have sought to correct same by a bill of review in equity. It is further contended that the only remedy in any equity cause open to intervenors to correct an error of fact in an order or decree of the court below, after the term, is to file an original bill in the nature of a bill to review, citing Pedersen v. Logan Square State & Savings Bank, 377 Ill. 408, Frank v. Salomon, 376 Ill. 439, Ernst Tosetti Brewing Co. v. Koehler, 200 Ill. 369. The intervenors in their opening statement to the court characterized their own amended petition to vacate the order dismissing the cause for want of prosecution by stating:

“The court is acquainted with the fact that we are proceeding under section 72 of the New Civil Practice Act .... The error of fact that, if the Court had been advised it was pending before a Master it would not have been dismissed on the No Progress Call.” In the case of Frank v. Salomon, 376 Ill. 439, a decree of foreclosure (entered upon appellees having been defaulted) was vacated within the term on appellant’s motion, certain allegations were added, and certain additional persons made parties. A new decree was then entered in favor of appellant and against appellees. While the vacated decree did not hold appellees liable, the second decree held them liable for a deficiency under certain conditions. Approximately a year and a half after the entry of the second decree, appellees filed a verified “motion in the nature of a writ of error coram nobis” to vacate all proceedings subsequent to the granting of leave to amend and asked leave to plead or answer, which motion was denied. On appeal, the Appellate Court held that section 72 of the Civil Practice Act applied to chancery proceedings, and reversed and remanded with directions to permit appellees to answer. The Supreme Court dismissed a petition for leave to appeal from the Appellate Court for want of a final judgment, and thereafter, the trial court vacated the second decree and granted appellees leave to plead. This was in turn appealed to the Appellate Court, and there dismissed on the ground that the order was not final. An appeal from the order of the Appellate Court dismissing the second appeal was prosecuted to the Supreme Court on leave granted. The Supreme Court held, after discussing the effect of the Civil Practice Act and its abolition of the distinctions between actions at law and in chancery, “Our conclusion is that section 72 of the Civil Practice Act is not applicable to chancery proceedings.” The Supreme Court reversed the cause with directions to deny the motion to vacate filed under section 72 of the Civil Practice Act, and this holding was followed by the Supreme Court in Pedersen v. Logan Square State & Savings Bank, 377 Ill. 408, is conclusive and applicable.

As we have stated before in this opinion, intervenors were guilty of gross negligence and laches in the prosecution of their intervening petitions, and we are of the opinion that the trial court justifiably refused to vacate the order of November 15, 1937, dismissing the cause for want of prosecution. Prom a consideration of the matters which are important in passing upon the questions before us, we are of the opinion that the order dismissing the cause for want of prosecution was fully justified, and that the trial court’s refusal to vacate said order of dismissal was proper.

Affirmed.

Kiley, J., concurs.

Burke, P. J., took no part.


author: Mr. Justice Kiley

text:
    George Zozaski, Minor, by Anthony T. Scolaro, His Next Friend, Appellee, v. Mather Stock Car Company and Alonzo C. Mather, Appellant.
    Gen. No. 41,613.

      Heard in the third division of this court for the first district at the February term, 1941.
    Opinion filed January 7, 1942.
    Rudnick & Wolfe, of Chicago, for appellant.
    Gallagher, Rosenberg & Richter, of Chicago, for appellee; C. A. Caplow, of Chicago, of counsel.
   Behearing Opinion.

Mr. Justice Kiley

delivered the opinion of the court.

This is an action for wages brought by the plaintiff, a minor, by his next friend, in the municipal court of Chicago. The defendant Alonzo C. Mather was not served with summons and did not appear. The trial court heard the case without a jury and entered a judgment against the Mather Stock Car Co., a corporation, for $647. The Corporation has appealed.

On February 17, 1936, Mather by his nephew Frank Watkins, leased a farm to plaintiff’s father on certain cash terms, but the lease also provided:

“It is also understood as part of this agreement that in event the party of the first part shall give employment at the Chicago Bidge plant of the Mather Stock Car Company at any time during the period of this lease, to the party of the second part, or any of his family, twenty-five per cent (25%) of the money paid for such employment shall accrue to the party of the first part as additional compensation hereunder.”

In October 1936, plaintiff was employed by the Corporation and continued as an employee until late in November 1938. During that period on each pay day, until October 10, 1938, the Corporation issued two checks drawn in plaintiff’s name, one for 75 per cent and one for 25 per cent of his wages, and thereafter until November 23, 1938, the 25 per cent check was drawn to order of Alonzo C. Mather & Co. The superintendent of the Corporation, Charles Andrus, gave the checks each pay day to the plaintiff who retained the 75 per cent check and endorsed and handed back the 25 per cent check. The latter check on each occasion was deposited in the personal account of Alonzo C. Mather. The Corporation used the same method in paying plaintiff’s father who was also an employee and who also, because of the terms of the lease, returned 25 per cent of his wages. The delivery, endorsement and return of plaintiff’s 25 per cent check generally took place in the presence of his father. There was no objection made to the Corporation of its action, either by the plaintiff or his father, until early in the Fall of 1938, although the plaintiff did complain' to his father. The father once asked that his son be given full wages but the request was denied and later the father having meanwhile moved off the farm objected to giving back any part of his own wages. Andrus informed him that neither the father nor the son could expect to remain unless each gave back 25 per cent of his wages. Shortly thereafter the employment of father and son was terminated and plaintiff commenced this suit.

Plaintiff contends in his pleading and proof that he was emancipated when employed by the Corporation; that his father had no right to his wages; that he knew Of the lease, hut not its provisions; that the Corporation wrongfully and unlawfully deducted and withheld part of his wages and that both the Corporation and Mather were liable for such wages.

The Corporation claims that it paid plaintiff his wages in full and that the wages sought here were paid by plaintiff’s father to Mather through the Corporation as Mather’s agent, pursuant to the provisions of the lease; that plaintiff’s father was entitled to the wages so paid because of his son’s minority; that the plaintiff was not emancipated because the father had impliedly agreed in the lease not to emancipate him, and Mather having acted on such implied, agreement it could not be revoked; that estoppel had operated by virtue of the lease to prevent the father from emancipating the plaintiff; and that in any event the Corporation was acting only as Mather’s agent and its principal being disclosed and it having paid over the money to its principal’s account, it cannot be held liable.

Plaintiff contends that the prior appeal in this case (Zozaski v. Mather Stock Car Co., 304 Ill. App. 459) decided several points cited by defendant and that they should not be considered again. The prior appeal was from a judgment dismissing plaintiff’s case after the trial court had sustained defendant’s motion to strike plaintiff’s second amended statement of claim. That appeal involved only the sufficiency of plaintiff’s pleading. This court reversed that judgment and remanded the cause with directions to vacate the order of dismissal and proceed to trial on the merits. The- decision of this court then was not a final judgment and it is not res judicata of the points presented by the defendant in this appeal. (Tribune Co. v. Emery Motor Livery Co., 338 Ill. 537).

Emancipation of children by their parents was entirely unknown at common law, but in the United States the doctrine has been applied with some liberality. Emancipation is never presumed, it must be proved and may be express or implied from the father’s conduct and the surrounding circumstances. 20 E. C. L. 609. The evidence shows that until October 10, 1938, the pay checks handed to plaintiff were drawn in his name; that, since 1935, prior to the execution of the lease, by virtue of an understanding with his father, and during all the period of his employment with the Corporation, plaintiff paid for his board and room at home and paid all his own bills; and that neither his father nor his mother contributed in any way to his support or maintenance. The plaintiff, therefore, under the rule in Illinois was not simply a licensee to work, as defendant contends, but was emancipated at the time the lease was executed and during his employment with the Corporation. Panther Creek Mines v. Industrial Commission, 296 Ill. 565; Auburn & A. Coal Co. v. Industrial Commission, 296 Ill. 568.

The points urged by defendant as to estoppel operating against the father’s right to emancipate and as to restrictions upon that right, need not be discussed since we have concluded that plaintiff was emancipated prior to the execution of the lease and while he worked for the Corporation. There is no evidence that the emancipation was revoked but, on the contrary, the evidence shows that both the Corporation and the father dealt with plaintiff as emancipated, the former paying him his wages in his own name and the latter permitting him to control those wages and support himself.

The right of a parent to the earnings of a child terminates when his duty to support that child has ceased, and accordingly, in this case the father had no right to plaintiff’s wages after the latter was emancipated. Magee v. Magee, 65 Ill. 255. It is unnecessary because of the conclusions hereinabove reached to consider the point raised by the defendant that the father may contract with reference to the future earnings of his unemancipated minor son. That point is interesting but is not involved here.

The defendant’s remaining contention is that the Corporation was acting as agent for Alonzo Mather and that after it received the money it deposited the same in Mather’s personal account and, therefore, the plaintiff in any event cannot recover against the Corporation. Under the circumstances here Mather had no right to plaintiff’s wages by virtue of the lease. If he accepted part of plaintiff’s wages under a purported implied agreement with him, Mather took the risk that the plaintiff might later repudiate such agreement as he had the right to do, despite his emancipation (Wuller v. Chuse Grocery Co., 241 Ill. 398), and as he did by filing this suit.

A study of the relationship between the Corporation and Mather shows that it is very close, for we find in the evidence that an officer of the Corporation negotiated the lease but Mather owned the land; that the Corporation employed the plaintiff, but that Mather had an influence upon its selection of employees; that the Corporation collected the money from plaintiff but deposited it in Mather’s personal account. The Corporation, as agent, had no greater right than, and took the same risk as, Mather with reference to plaintiff’s wages. Its officers knew plaintiff was a minor while he was its employee; knew he had a right then to rescind his contracts later and under the facts in this case even though the Corporation paid the money over to Mather, its disclosed principal, it cannot escape its liability through the defense of agency. (Restatement of Agency, ch. 11, sec. 339, par. f, subpar. 3.)

It is the policy of this State that courts should guard carefully the rights of minors. Waechter v. Industrial Commission, 367 Ill. 256.

For the reasons herein given the judgment of the municipal court is affirmed.

Judgment affirmed.

Burke, P. J., and Hebel, J., concur.