text:
    Edward Mueth et al., Appellees, v. George Jaska, Appellant.

      Opinion filed November 8, 1939.
    Arthur W. Peth and A. B. Davis, both of Belleville, and A. H. Fridrichs, of Waterloo, for appellant.
    Harry E. Jackson, of Waterloo,, and Preston K. Johnson, of Belleville, for appellees.
   Mr. Justice Culbertson

delivered the opinion of the court.

Plaintiffs below obtained judgments in the circuit court of Monroe county, Illinois, against defendant below, in an action for personal injuries to each of plaintiffs, and for damages to an automobile owned by Edward Mueth, by reason of a collision between such automobile and an automobile owned and driven by the defendant, on February 6,1938, while the said Edward Mueth was driving his automobile in a northerly direction on Illinois State Highway No. 3 neah the junction of said highway with Illinois State Highway No. 158, in Monroe county, Illinois. Defendant had filed a counterclaim against plaintiffs, but dismissed such counterclaim as against all others but the plaintiff Edward Mueth. The case was tried before a jury and verdicts were returned in favor of the plaintiffs in the following amounts: To Edward Mueth, $2,000; to Josephine Mueth, $300; to Philip Mueth, $2,500; and to Bertha Mueth, $200. The jury found against the defendant in his counterclaim which was asserted against Edward Mueth, plaintiff. From the judgments entered upon such verdicts, the defendant appeals to this court.

The only eyewitnesses to the collision were the four plaintiffs, and the defendant, and the lady passenger in his car, Celia Benhoff. The evidence of the witnesses conflicts considerably. The plaintiffs’ witnesses testified in substance to the effect that the plaintiff Edwaxd Mueth was driving with the other plaintiffs in his two-door Plymouth coach automobile on February 6, 1938, at 1:20 p. m., in a northerly direction on route 3, en route to St. Louis, and that defendant, George Jaska, was driving his Plymouth coach in a westerly direction on route 158, which comes into route 3 from the east and terminates in a “Y” intersection. They further testified that when the car in which the plaintiffs were riding was about 30 feet south of the junction of the south lead of such “Y” intersection, and was traveling about 20 miles per hour, the defendant’s car was observed coming out of route 158, at which point" there is a State stop sign. They testified that defendant failed to make the stop, and two State officers who were not eyewitnesses to the accident, but to whom defendant talked later, likewise testified that defendant admitted that he failed to stop and said that he merely slowed down. It was stated that defendant’s car was coming around the lead and was about 30 feet from route 3 when the plaintiff Edward Mueth first saw it, and that defendant’s automobile was traveling about 35 miles per hour. The plaintiff Edward Mueth testified that he immediately applied his brakes and decreased his speed to about 10 miles per hour, although he did not succeed in stopping.

Plaintiffs testified that the cars came together on the east side of route 3; that defendant’s car was on the wrong side of the road; that the left corner of defendant’s car came in contact with the right front of the car in which plaintiffs were riding; and that the front part of both cars went to the west side of the road and came to rest in a Y-shaped position after the accident, with both front ends being on the west side of the black center line of route 3, and both back ends on the east side thereof.

Defendant, and his witness, both testified that defendant did stop at the stop sign, and contend that plaintiff swerved over to the west side of the black line at the time the accident occurred, and that plaintiff’s car was traveling between 30 and 35 miles per hour on the defendant’s side of the highway. Defendant likewise places considerable emphasis on the position of the automobiles after the accident, and the fact that the occupants of the car in which the plaintiffs were riding, were substantially injured, while the defendant and his passenger, Miss Benhoff, suffered slight, if any, injuries. Defendant contends that the physical facts show that the plaintiffs were proceeding more rapidly than the defendants, and that they were proceeding on the wrong side of the road.

Defendant relies for reversal upon the contentions: First: That all the verdicts are against the law and the evidence; and, Secondly: That the verdicts of the jury in favor of the plaintiffs, Edward Mueth and Philip Mueth, are so grossly excessive in amount as to clearly evince prejudice and passion on the part of the jury as against the defendant, and a misunderstanding on the part of the jury as to the measure and elements of damages properly warranted by the evideuce as reasonable compensation for the injuries shown by the evidence.

The evidence in this case conflicted as to the facts, and as to the basic question of whether or not plaintiff Edward Mueth was guilty of contributory negligence, and whether or not defendant George Jaska was guilty of negligence proximately causing the injuries. The evidence submitted by plaintiffs, if believed, was sufficient to justify verdicts in favor of plaintiffs. It has repeatedly been held that the verdict of a jury, when approved by a trial judge, should not be disturbed by a reviewing court unless the record clearly shows it is contrary to the weight of the evidence (Belz v. Piepenbrink, 318 Ill. 528, 535; Carney v. Sheedy, 295 Ill. 78). There is nothing in the record which in any manner indicates that the verdicts returned in the case under consideration are clearly contrary to the weight of the evidence. The evidence as to defendant’s negligence, as to plaintiff’s contributory negligence, and as to the proximate cause of the collision, was conflicting. It was the province of the jury, under those circumstances, to determine which witnesses were found to be worthy of belief, and under such circumstances the court is not warranted in substituting its judgment for that of the jury, nor in such circumstance will a reviewing court set aside the verdict (Gregory v. Merriam, 294 Ill. App. 483, 489).

Some emphasis was placed by defendant on the contention that plaintiff Edward Mueth was guilty of contributory negligence by virtue of the fact that the right front of plaintiff’s car and the left front of defendant’s car came together, and because of the physical facts of the position of the cars at the time of collision and after the automobiles came to rest, as well as the comparative injuries of the occupants of the respective cars. While it is true that courts take judicial notice of natural forces and laws of physics and matheruatics, and while a verdict against incontrovertible facts conld not be sustained, there is nothing in the record or in the existence of the physical facts referred to by defendant, which justifies this court in saying, as a matter of law, that plaintiff Edward Mueth was guilty of contributory negligence. Certainly comparative injuries suffered by the respective occupants of automobiles involved in collisions, cannot be the test of negligence, or responsibility for such injuries.

The plaintiff Edward Mueth testified to facts which, if true, showed or tended to show that he was put in a position of danger by defendant’s failure to stop. If he found it necessary to swerve his car to the left to avoid such danger resulting from the negligence of the defendant, it was a question for the jury whether such action constituted contributory negligence on the part of the plaintiff Edward Mueth, and it has been correctly stated that such action could not constitute negligence as a matter of law (Synwolt v. Klank, 296 Ill. App. 79, 85).

The evidence of the plaintiffs was of such character as to indicate that the negligence of defendant was the proximate cause of the injuries. There was ample evidence to support the verdicts. Under the evidence in the record this court would not be justified in saying, as a matter of law, that there was no negligence on the part of plaintiff Edward Mueth. The verdicts of the jury, and the judgments of the court below, cannot be disturbed by this court in the state of the evidence in the record.

Defendant, likewise, contends that the amounts awarded by the jury to Edward Mueth, of $2,000, and to Philip Mueth, of $2,500, are grossly excessive. Such contention is likewise not justified by the evidence.

Edward Mueth, who was awarded $2,000, had medical, hospital, and nursing bills of $156.75. In addition, his automobile was damaged to the extent of $175 to $200. His physician testified that he had lacerations on his chin, face, chest, hand, and finger, and a fracture of the fourth rib, which involved the pleura, and thereafter caused severe pleurisy and bronchitis; that he had contusions and bruises which later caused him to develop pain in his right side and a weakness in the right inguinal ring. Edward Mueth testified that he is, likewise, troubled with headaches, dizziness, and nervousness, which he, and his doctor, attribute to the accident.

Philip Mueth, in whose favor a judgment of $2,500 was entered, has a permanent injury to his jaw, and the use of the articular of the left side is decidedly impaired; that the effect is to limit his chewing. He suffered a cerebral concussion, which left him considerably confused for a few days. Philip Mueth’s bills were, likewise, substantial. He testified to loss of weight and inability to chew his food.

Under the circumstances there seems to be no adequate basis for the contention that the verdicts complained of were excessive. Verdicts of the jury in cases of the character before this court, will not be disturbed in absence of a showing that the verdicts are so palpably excessive as to indicate some improper motive on the part of the jury, such as passion or prejudice. The fixing of the amount of damages in an action for personal injuries is peculiarly within the province of the jury, there being no regular standard by which to measure the amounts to be awarded (Crane v. Railway Express Agency, Inc., 293 Ill. App. 328), and damages will not be considered excessive in absence of a showing of prejudice and passion (Owens v. Guerney, 241 Ill. App. 477, 480). This court does not feel that the verdicts complained of were excessive in any respect, or that this court would be justified in taking any action in reducing the amount thereof.

In connection with the amount of the verdicts defendant cites the fact that one of the witnesses called on behalf of the plaintiffs, a State police officer, referred to the fact that the defendant mentioned insurance. The question which was asked was not designed to bring out that fact, and the answer was not responsive. The trial court sustained defendant’s objection, and instructed the jury to disregard the statement of the witness. Defendant made no motion for mistrial, and everything was done which defendant requested be done in connection with such statement. It cannot now be said that defendant is entitled to further relief than was sought in the trial.

There being no reversible error in the record, the judgments on behalf of the plaintiffs-appellees, and against the defendant-appellant, are therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Culbertson

license: Public Domain

text:
    People of the State of Illinois, Defendant in Error, v. Delbert Browning, Plaintiff in Error.

      Opinion filed November 8, 1939.
    Matheney & Welker, of Vandalia, for plaintiff in error.
    Wm. Floyd Sonnemann, of Vandalia, for defendant in error.
   Mr. Justice Culbertson

delivered the opinion of the court.

Plaintiff in error, Delbert Browning, was found guilty of larceny of a dog in the circuit court of Fayette county on an indictment which charged him, in one count, with the crime of larceny of a bird dog and, in two.- succeeding counts, with knowingly receiving said stolen property and preventing the owner from repossessing his property of the value of $50, the same being the property of one William Beuthien. The jury found the value of the dog to be $14 and the age of the defendant to be 55 years. Motions for new trial and in arrest of judgment were overruled and the plaintiff in error was sentenced to the Illinois State Farm at Vandalia for a term of seven months and was fined $10 and costs.

From such conviction and sentence plaintiff in error prosecutes this writ of error. The evidence for the State was entirely circumstantial. It was shown that the plaintiff in error knew the owner of the stolen dog and also that the plaintiff in error had been a hunter for a period of 20 years and had frequently visited his father’s home near the home of the owner of the stolen dog. It. was shown that the owner kept the dog, which was trained, in a woven wire pen in Ms back yard and that he last saw the dog on a Tuesday and missed him the next day, but saw the dog again on the Thursday following, when the deputy sheriff and plaintiff in error returned such dog to the owner. It was, likewise, shown that on Tuesday night the plaintiff in error visited a dealer in dogs and attempted to make a sale of the dog in question, but that no sale was made. The deputy sheriff, to whom the theft of the dog was reported, made investigation and, upon hearing that the plaintiff in error had attempted to sell a dog, got in touch with him on the telephone. Plaintiff in error voluntarily met the deputy and stated to bim that he had purchased the dog on Tuesday night, but that if anyone claimed the dog he would surrender it. The deputy sheriff and plaintiff in error thereupon got the dog and returned it to the owner.

Defendant testified in hispwn behalf and stated that he is engaged in the general trucking business. He directly denied that he had taken the dog in question, but asserted he had purchased it from a man who said his name was Adams. He produced a witness who said he was present at the time the dog was purportedly purchased and he, likewise, told of Ms attempt to sell the dog, in which he was also corroborated.

The State’s case rested almost solely upon the fact that the plaintiff in error was in exclusive possession of the stolen dog soon after it was stolen. Plaintiff in error’s defense was founded ■ principally on Ms explanation of such possession, in which he contended that he purchased the dog and made the statement as to his movements referred to in the- facts herein recited.

Plaintiff in error relies for reversal principally upon the .giving of the following instructions on behalf of the prosecution, “The Court instructs the jury, as a matter of law, that the recent and unexplained possession of stolen property soon after the theft was committed tends to establish the guilt of the person in whose possession it was found. That fact, of itself, if you believe from the evidence beyond a reasonable doubt it is a fact, is sufficient to authorize a conviction unless the inference of guilt thereby raised is overcome by other facts and circumstances in evidence which create in the minds of the jury a reasonable doubt of such guilt.”

Complaint is made by plaintiff in error particularly of the words “unexplained possession” and the contention is persuasively made that the issue under the facts for the jury was whether or not the explanation of plaintiff in error was reasonable and believable and that the instruction in its form might cause the jury to assume that the possession was unexplained and that the possession in and of itself was sufficient to authorize a conviction.

In People v. Lehner, 326 Ill. 216, an instruction of similar nature was construed by our Supreme Court, where an explanation of possession of the stolen property had likewise been the basis of the defense. In considering such instruction, the court says (at page 225) :

“The foregoing instruction was likely to mislead the jury. It assumes, in the first place, that the possession of the recently stolen property was not explained by the defendant. His explanation, whether truthful or otherwise, was his real and only defense to the charge of larceny. It is true that the recent, exclusive and unexplained possession of stolen property soon after the theft was committed is sufficient to authorize a conviction. In a case where the defendant offers an explanation of his possession of the stolen property it is the province of the jury to consider that explanation together with all the other facts in the case, and if, after such consideration, the jury have a reasonable doubt of the defendant’s guilt it is their duty to return a verdict of not guilty. . . . The jury should have been so instructed without leaving them to believe or to assume that such possession was unexplained by the defendant. ’ ’

The observations of the court in People v. Lehner, supra, are equally applicable in the instant case. The defense of the plaintiff in error consisted of his explanation of how the dog had come into his possession, in which he was corroborated by one witness. Under the circumstances to instruct the jury with reference to “unexplained possession” was highly prejudicial. Instructions should not only state the law correctly, but should be applicable to the case and should not have a tendency to mislead the jury (People v. Lawson, 351 Ill. 457).

Other points are raised by the parties to this cause, but in view of the conclusion of this court in this matter, there is no need to dwell upon such points. It should, however, be observed that this court is cognizant of the contention of defendant in error, that it is well settled that unless, upon a new trial, a different result might reasonably be expected, a court of review will not reverse the judgment of the lower court for an error in giving of instructions. In the instant case, however, the court feels that such principle is not applicable. The plaintiff in error testified that he purchased the dog, and in this he was corroborated by another witness. In view of the propensity of the instruction which was given, to mislead the jury, as indicated in this opinion, this court cannot say that a different result might not be reached by another jury on a retrial in this matter.

The judgment of the circuit court of Fayette county will, therefore, be reversed, and the cause remanded.

Reversed and remanded.


text:
    People of the State of Illinois, Defendant in Error, v. William Arthur Stills, Plaintiff in Error.

      Opinion filed November 8, 1939.
    Kern, Pearce & Pearce, of Carmi, for plaintiff in error.
    Ivan A. Elliott, of Carmi, for defendant in error.
   Mr. Justice Culbertson

delivered the opinion of the court.

Plaintiff in error, William Arthur Stills, was prosecuted in the county court of White county under an information filed under paragraph 255 of chapter 38 of the Criminal Code (Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 37.148]), by the terms of which the said William Arthur. Stills, hereinafter called defendant, was charged with obtaining from Oscar Sto'cke, the prosecuting witness, certain corn of the value of $73.10, through the issuance of a check in said sum,of $73.10, under circumstances which constituted a violation of the section of the Criminal Code referred to, which provides in substance that the issuance of any check to obtain something of value from any person, with intent to defraud, when the maker of the check has not sufficient funds or credit in the depository for payment of such check, constitutes a misdemeanor. The act further provides, in substance, that the making of such check without having sufficient funds or credit in the depository upon which the check is drawn to pay the same in full at such time, shall be “prima facie evidence of intent to defraud.” Jury trial was waived and trial was had before the court.

The court, after hearing the evidence, found the defendant guilty “in manner and in form as charged in the Information.” The following orders were, likewise, thereupon entered by the court: “Whereupon it is ordered by the Court that said defendant pay a fine of $25.00 and all costs of this proceeding and that he make restitution to Oscar Stocke for the amount of the check in this proceeding, said check being in the amount of $73.10.

“It is further ordered by the Court that said defendant be committed to the County jail until fine and costs are fully paid, secured, worked out or until he is otherwise discharged by due process of law, and that execution issue therefor.”

The evidence in the case shows that defendant, and his father, J. W. Stills, were engaged in the grain business as partners, under the firm name of J. W. Stills & Son, at Carnii and Enfield in White county, Illinois. Each of the partners had authority to buy grain and to write checks on the account which was carried in the White County Bank at Carmi, Illinois. During the month of September, 1938, the partnership began to experience financial difficulties and some discussion was had with the president of the bank as to methods of financing, by the terms of which defendant testified that checks would be temporarily held by the bank and the defendant would bring in sight drafts, with bill of lading attached, at the end of the day and deposit to cover the checks. That arrangement terminated on October 29, 1938, and the bank president testified that prior to October 25th, the date upon which the check in question was drawn, defendant and his partner were told that no more checks would be honored by the bank against commissions.

The evidence further showed that it was the custom of the defendant to sign a number of blank checks so that when grain was delivered to the firm the weigh-man on duty would be able to fill in such check for the amount due the customer and immediately pay for the grain purchased. One of such checks was delivered to the prosecuting witness, Oscar Stocke, who had brought in two loads of corn on October the 20th and 25th, 1938. He was given a check for $73.10, which was signed “ J. W. Stills & Son, by W. A. Stills.” Such check was deposited on October 29th, but payment thereof was refused. The check came back marked “Not Sufficient Funds,” and was later turned down because of “No Funds.”

It was shown that the prosecuting witness made several attempts to collect the amount of the check from the defendant, or his partner, but said check was not paid. While the evidence is not very clear on the point as to the status of the balance in the bank in the partnership account, it was shown that there was not sufficient funds in, or credit with the bank, for payment of snch check in full upon its presentation. There was some evidence to the effect, however, that the bank was retaining a portion of the partnership balance, as shown by its account, for its own protection, to cover sight drafts on the basis of the arrangement as between the bank and the partnership heretofore referred to. The president of the bank testified that the balance in the partnership account available to the partnership at the close of business on October 24th, was $10.72, and at the close of business on October 25th, the partnership had an overdraft of 26 cents, and he further stated that there was no arrangement permitting such overdraft and that the overdraft resulted from an error. The check involved in the instant prosecution was refused payment because no funds were available in the partnership account with which to pay the same.

It is contended by the defendant that no violation of the section of the Criminal Code referred to is shown, on the theory that the arrangement of the defendant and his partner constituted “credit” with the bank. The arrangement considered by the defendant in this connection has been referred to in the statement of facts in this opinion. It was not shown, however, that there was any credit arrangement with the bank whereby this check would be paid, and the bank president testified that there was no understanding which would permit the partnership, or defendant, to draw checks on the partnership account, which would exceed the deposit in the bank at the time the check was drawn.

Particular emphasis is likewise placed by the defendant upon the contention that it was not shown that he had any “intent to defraud.” In this connection defendant complains that the court erred in sustaining an objection to the question which was directed to him, “Did you have any intention of defrauding anyone?” and also the question which was put to the bank president, “Tell the Court if this check, or any other, was issued with intent to defraud.” In view of the fact that this prosecution.was tried before the court, it is difficult to see how answers elicited by such questions, if most favorable to the defendant, could have changed the opinion of the court under the circumstances. The same observations are applicable with reference to the questions directed to the prosecuting witness as to whether he thought the partnership firm wanted to defraud him. The question of whether or not defendant had any intent to defraud was one for the court to determine upon consideration of all the evidence presented to him. The court’s conclusion on such point was obviously based on the circumstances in the case, and not alone on defendant’s declarations, or the statement of other persons, as to what was intended (Wohlford v. People, 148 Ill. 296).

It is, likewise, contended that error was committed in permitting the bank president to testify concerning other checks of the partnership, upon which payment had been refused prior to the refusal of payment of the check here in question. While as a general rule evidence of other like offenses is not admissible in such prosecution, in view of the fact that the testimony was interrelated as to the other checks which were issued, and that proof of the nonpayment of other checks would tend to show an intent, motive, or common design to violate the section of the Criminal Code involved in this prosecution, this court feels that no reversible error arises from such references (People v. Novotny, 371 Ill. 58; People v. Rooney, 355 Ill. 613; People v. Billburg, 314 Ill. 182).

Defendant likewise complains of the form of the information, and of the judgment of the court based on such information. The information is not abstracted. It has frequently been held that the court will not search the record where the matters complained of are simply indexed, but are not actually set forth in the abstract. While the court might search the record to find reason for afirmance, it will not do so to find grounds for reversal (Village of Glencoe v. Hurford, 317 Ill. 203; McGovern v. City of Chicago, 202 Ill. App. 139).

We are not required, however, to dispose of the contention of the defendant upon such narrow ground. The complaint of the defendant is made in connection with the entry of the judgment by the court, which in general terms found the defendant guilty in manner and form as charged in the information. The information, as shown by the record and the evidence presented, was sufficiently specific to advise the defendant of the nature of the charge which he was to meet, and the nature of such charge was easily understood by the court from the information. Under those circumstances, it has been held that such information is sufficient, and that the finding of the court that the defendant was guilty in the manner and form as charged in the information is likewise sufficient, as no particular form.is required by statute in cases of this character (People v. Westerdahl, 316 Ill. 86). The court in the Westerdahl case stated, “If from the whole record it is apparent that the court found the plaintiff in error guilty of the offense charged and sentenced him in accordance with the statute it is sufficient. Even if there were a technical error in the form of the judgment it would not be reversed for that reason, alone. ’ ’

While the information may have been subject to objection for want of particularity, where no attack on the form of such information is made in the trial court, as was true in the instant case, it cannot thereafter be raised.

It is, likewise, objected by the defendant that the judgment of the trial court was erroneous because of the fact that the check involved was not the individual check of the defendant, but was a check of the partnership. Disregarding such technical objections as might have been made to such information in apt time in the trial court, it is enough for this court to observe in this connection, that partnerships are not recognized in crime, and that in the event of action by a partner, or partners, in the course of partnership business, which may constitute a crime, the partners should be indicted or prosecuted as individuals, and not as a firm (People v. Paisley, 288 Ill. 310).

While it is true that in any criminal prosecution the court must be astute to require that defendant’s guilt must be proven beyond reasonable doubt, and that the defendant must be presumed to be innocent until proven guilty, the weight to be accorded the testimony of the several witnesses was within the province of the trial court, and unless the Appellate Court is convinced that the conclusion of the trial court is contrary to the weight of the evidence, it should not substitute its judgment for that of the trial court (People v. Bridgewater, 369 Ill. 633; People v. Deikelmann, 367 Ill. 372). In the state of the record before this court, it cannot be said that the trial court has made a finding which is palpably contrary to the weight of the evidence.

It is not contended by either party in this court, however, that the portion of the order of the court reading, “And that he make restitution to Oscar Stocke for the amount of the check in this proceeding, said check being in the amount of $73.10” is sanctioned in any manner. This court will treat such portion of the order as surplusage, and will modify the order of the court by striking such portion of the order as is quoted in this paragraph. Such portion of the order is accordingly stricken, and the finding and order of the county court, after being modified as herein indicated, is affirmed.

Modified and affirmed.


text:
    Emma E. Harris, Appellee, v. Sovereign Camp of the Woodmen of the World, Incorporated, Appellant.

      Opinion filed November 8, 1939.
    Leon A. Coup, of Marion, for appellant.
    R. W. Harris, R. T. Cook and E. E. Denison, all of Marion, for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court.

Plaintiff below, Emma E. Harris, recovered judgment for $1,489.40 under a benefit certificate issued by defendant fraternal association to James Harris, her son.

The action was commenced prior to the enactment of the Civil Practice Act in 1931. The declaration alleged the issuance on May 14, 1930, to the deceased, James Harris, of a benefit certificate or policy of insurance, by the defendant fraternal benefit association. It contained the essential allegations to set forth a cause of action. A plea of the general issue was filed by the defendant, and thereafter the defendant filed a special plea alleging in substance that the benefit certificate (through the constitution and by-laws of the association) provides that if any member fails to pay his dues, he shall become suspended, and all money paid on account of the membership shall be forfeited; and further provides that any person so suspended may, if in good health, be reinstated, but that such reinstatement shall not be effective unless such person be in fact in good health and continue in good health for 30 days thereafter, in addition to paying the defaulted assessments. The plea further alleges that the deceased, James Harris, became suspended because his assessment for the month of September, which became due on September 30,1930, was not paid until October 20, 1930. James Harris died on October 23, 1930. The plea further avers that the said JamesHarris did not become reinstated as a member of the association. Plaintiff, in her replication, specifically denied that James Harris was suspended from membership, and, in an additional count, specifically avers that it was the custom of the defendant to accept overdue monthly payments of assessments of members of the defendant association resident in Marion, Illinois, the home of the deceased, and that the deceased became a member and continued to be a member at the time of his death. Said additional count likewise avers that by reason of such custom and habit, the defendant association waived provisions as to suspension from membership and forfeiture of benefit certificates, and this benefit certificate, by virtue of failure to pay monthly instalments when they were due.

Thereafter defendant filed a second special plea to the additional count of plaintiff, in which it avers in substance that, the deceased was suspended from membership and his benefit certificate was forfeited; that lie did not become reinstated because he was not in good health, and did not remain in good health for 30 days after his payment of dues on October 20, 1930. Such plea further avers that the financial secretary of the local camp of the defendant association, when accepting payment of the dues of the deceased, did not know of his illness and could not waive the provisions of the constitution of the defendant association for suspension of members and forfeiture of benefit certificates through failure to pay assessments when due. To such second special plea, plaintiff filed a replication which repeated the averments of the additional count setting forth the custom of the defendant association in accepting payment of assessments after they became due, without suspension from membership, and without forfeiture of benefit certificates, and specifically alleged that the deceased, James Harris, was never suspended from the association, and that his benefit certificate was never forfeited, and that he was a member of said association, in good standing, at the time of his death.

The evidence in the case, which was tried in September of 1937, shows that the insured, James Harris, was a young man 19 years of age when he joined the local camp of defendant association at Marion, Illinois. He lived with his father, W. T. Harris, who paid all of the dues and assessments in the defendant association for his son, who was not employed from the time of the issuance of the certificate on May 14, 1930, until his death. The deceased was apparently a strong and robust young man prior to his last illness, but on the 18th of October, while he was in Indianapolis, he caught a cold. Late on the night of October 20, the doctor, who had first diagnosed his condition as that of a cold, found that he had pneumonia. He was sent to a hospital the next day, and remained in the hospital until October 23, when he died.

The insured’s father, who had made a practice of paying all of his son’s dues in the association, testified that on two or three occasions he had not paid the dues until 30 or more days after they were due and that the payments had always been accepted; that he did not pay the September, 1930, dues to the financial secretary of the defendant association until about 8 or 9 o’clock on the morning* of October 20th; at that time he had no knowledge of any kind that his son, the insured, was ill; he did not learn until late that evening of his son’s illness. Plaintiff also produced other testimony of witnesses, which tended to show that it was the custom of the defendant association to allow members to pay dues and assessments at any time after due date, up until two or three months thereafter, and that in accordance with that custom such payments were accepted by the local camp and that such members were not considered as suspended from membership, nor were their benefit certificates forfeited, and that during such periods of default they were treated in all respects as members in good standing, with all the privileges of the association.

The payment made by the father of the deceased, was accepted by the financial secretary, and the money was sent to the sovereign grand lodge of the defendant association, and no attempt was made to return such payment until after proofs of death, furnished by the plaintiff, were submitted to the defendant association. Defendant association thereupon transmitted a check in an attempt to refund the amount of the last assessment paid by the father of insured, but such check was never cashed by the plaintiff.

The evidence likewise shows that the deceased, James Harris, was buried by the local lodge of the defendant association in accordance with, the usual rituals and ceremonies of the burial of a'member of the lodge in good standing. A letter was also introduced, which was dated October 23, 1930, the date of the death of the deceased, and was addressed to the deceased insured as “Esteemed Sovereign,” and was apparently written before the secretary at the Sovereign camp at Omaha, Nebraska, had received the last assessment paid on behalf of the insured. The letter appeals to the insured to pay his dues for the month of September, and recites that it is possible that the failure to pay had been the result of some misunderstanding on the part of the insured, and requests that the insured write the secretary if there was any information which he desired. It likewise recites that the failure to pay may have been an oversight, and states that if such is the case, insured should immediately pay the amount due, to the financial secretary of his camp, or, in the event that he has already done so, to disregard the letter. At that time the dues had already been paid to the local camp since October the 20th. The letter was not, of course, delivered to the home of the deceased until after his death.

The evidence further shows that on November 4, 1930, after the burial of the deceased, the local camp of the defendant association which had conducted the funeral ceremony and rituals, passed a resolution for their records, and for the family of the deceased, which, with becoming dignity, expressed regret at the death of the deceased, who was referred to in such resolution as “Our Esteemed Sovereign,” and recites that he was a “loyal and enthusiastic Woodman and served faithfully as a member ...”

The cause was tried before a jury, and the jury found the issues for the plaintiff and assessed plaintiff’s damages at $1,489.40, upon which verdict the judgment of the court was based. Defendant filed motions for directed verdict at the close of plaintiff’s evidence, and at the close of all the evidence; and also filed motion for judgment non obstante veredicto, and for new trial, and in arrest of judgment. All motions were denied. Notice of appeal was filed with the clerk of the circuit court on May 14, 1938. Praecipe for record was not filed with the circuit clerk until May 25, 1938, 11 days after the filing of notice of appeal.

Plaintiff appellee filed motion to dismiss the appeal of defendant appellant for the reason that the praecipe for record was not filed within 10 days after notice of appeal had been filed. Such motion has been taken with the case for determination.

Appellees motion is based on provisions of Rule 36 (1) (a), which are substantially identical with Rule 1 of this court, and which provide in part, “. . . the appellant shall within ten days after the notice of appeal has been filed, prepare and file a praecipe with the clerk of the trial court, with proof of service, and serve a copy thereof on the appellee, or his attorney, in which appellant shall designate what parts of the trial court record are to be incorporated in the record on appeal. And the appellee, or co-appellant, prosecuting a separate appeal, shall, within five days after being so served, file a praecipe for such additional parts of the record as he may desire to have incorporated in the record on appeal, ...” It is accurately observed by appellee that there is no specific provision in the rules of either court for obtaining an extension of time to file a praecipe for record on appeal. Appellee therefore concludes that the filing of praecipe for record more than 10 days after the filing of notice of appeal is not sanctioned, and that as a result thereof appellant’s appeal should be dismissed. In this connection appellee likewise appropriately observes that if an appellant may disregard the time limit expressed in the rules, an appellee cannot know what parts of the record will be included in the record on appeal, and would not know whether it would be necessary for appellee to file a praecipe for additional parts of the record. As appellee expresses it, the parties to this suit, and other attorneys and litigants in this State, are entitled to know whether such rule is to be applied inflexibly or, if not, when and under what circumstances it will not be so applied.

The interpretation of the rule, under the facts and circumstances here before the court, seems to raise a problem not heretofore considered in either the Supreme or Appellate Courts of this State. Appellee points to the case of Lanquist v. Grossman, 282 Ill. App. 181, in which case the appellant had filed one notice of appeal and failed to file his praecipe for record on appeal within the 10-day period specified in the rules. Fearing that he had forfeited his rights under such appeal, and that the appeal would be dismissed for that reason, appellant became anxious and filed a second notice of appeal, with a praecipe for record on such second appeal. The record on appeal was not filed within the time required by the rules after the first notice of appeal, but was filed within the time required by the rules after the second notice of appeal. A motion was filed to dismiss the second appeal. The motion was at first denied, but upon reconsideration, the court dismissed the appeal and stated, as a basis for so doing, that there is no provision in the rules of court for allowing a second notice of appeal, and that the second notice of appeal was a nullity. The court in that case stated (át p. 190):

“If plaintiff had proceeded with his original perfected appeal and filed his record on appeal in this court within apt time, even though his praecipe for record did not comply with the rules as to the time of its filing, a different question would have been presented.” The question which would have been presented, to which the court refers, is one which now confronts this court.

It should be observed by this court in this connection that there is no provision of the Practice Act, or of the rules of court, which specifically directs the dismissal of an appeal if the praecipe for record is not filed within the 10-day period referred to in the rule above recited. It should also be understood that the filing of notice of appeal is the only jurisdictional step required by the Civil Practice Act (162 East Ohio Street Hotel Corp. v. Lindheimer, 368 Ill. 294).

The objectives of the Civil Practice Act and the rules of court are, “to facilitate the orderly disposition of the business of the court, and to expedite prompt administration of justice” (People v. Village of Wilmette, 294 Ill. App. 362). Section 4 of the act itself [Ill. Rev. Stat. 1937, ch. 110, .§128; Jones Ill. Stats. Ann. 104.004] provides that the act shall “be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties.” In the Wilmette case, supra, the court emphasizes that simplification of the procedure was the purpose of the act, and that the prime object-of the act was to enable parties to have the merits of controversies passed on by courts, and that the realities, rather than the technicalities, be decided.

Under section 81 of the Practice Act of 1907 [Cahill’s Ill. St. 1931, ch. 110, ¶81], which contained specific provisions as to filing of praecipe for record (including a five-day notice to be served on the opposite party, or his attorney), the Supreme Court of this State stated in People v. Union Gas & Electric Co., 258 Ill. 193 (at p. 195) :

“We agree with appellee that the statute imposes a duty on parties intending to take an appeal or prosecute a writ of error to give the required notice, but we do not agree that the giving of such notice is an indispensable prerequisite to the right to have the record reviewed. The object of the legislature is clearly expressed in the statute above quoted. It was intended to give the appellee or defendant in error information as to the particular portions of the record that the appellant or plaintiff in error intended to bring up, in order that appellee or defendant in error might, if he saw proper, .file an additional praecipe for any other portions of the record that he might deem necessary to a full presentation of the errors assigned by appellant or as a basis for any cross-errors that he might desire to assign. If appellant brings up the entire record the failure to give notice can work no injury to appellee, and this court has held that where the complete record is brought up, the failure to give the notice is a matter of no serious importance. Where the appellant or plaintiff in error fails to give the notice and files a praecipe for only certain parts of the record less than the whole, the statute should be complied with; but in such case appellee should show, by affidavit or otherwise, that the record as called for by the appellant’s praecipe is insufficient to properly present the error assigned, or that some additional portion of the record is necessary to enable the appellee to assign cross-errors. ’ ’ The emphasis in such case was placed on the fact that the entire record was before the court, and that thereby an appellee could not conceivably be prejudiced. In the case before this court, the entire record was, likewise, brought up by the appellant, and the record was filed on appeal within apt time after the filing of the notice of appeal. There is no showing that the appellee was prejudiced or inconvenienced in any respect.

It would be a strange commentary on our much heralded progress in matters of appellate procedure and the administration of justice if this court, and the courts of this State, were to adopt a rule of construction relating to the time of filing of the praecipe for record more technical than that adopted by the Supreme Court under the old Practice Act, or less liberal in its construction than was the case under the old act. This court feels that there is no necessary or desirable reason for so doing. At the same time we do not feel that the implication should be drawn from this opinion that the filing of the praecipe for record and the rules referred to in this opinion, can be disregarded with impunity. The guiding principle which moves this court to its conclusion in this connection, in the instant case, and which we feel will be pursued by courts of this State in the future, is that of attaining the objectives of the Practice Act in promoting the orderly administration of justice. "While adherence to the rule governing the time for the filing of the praecipe is desirable and should in all cases be pursued by appellants, unless it can be shown on appeal that an appellee is actually prejudiced through the failure to file such praecipe for record in apt time, this court feels that appeals should not be dismissed upon that ground alone. For the purposes of this decision, however, it is only necessary for this court to reiterate that where the whole record is brought before this court and where the record is filed in apt time on appeal following notice of appeal, the fact that the praecipe for the record has not been filed until 10 days after filing notice of appeal, where no prejudice to the appellee is shown, will not justify a dismissal of the appeal because of such delay in filing the praecipe. This court feels that under the present state of the rules, no mathematical formula relating to the filing of such praecipe for record can be devised, but that unless some showing is made of prejudice to an appellee, or to the prompt administration of justice in our courts of review, no dismissal of an appeal should be countenanced on the technical ground of delay in filing of the praecipe. The motion to dismiss the appeal will, therefore, not be allowed, and we shall proceed to a consideration of this case on its merits.

Defendant association relies for reversal upon the contentions that the court failed to sustain the various motions made by the defendant, and referred to in the statement of facts; and upon alleged error in the giving of an instruction, which will be considered later in this opinion; and, likewise, upon the ground that the judgment is contrary to the law and to the evidence by reason of the fact that James Harris was not shown to be a member of the defendant association, but was suspended therefrom and never became reinstated before his death; that no evidence of the waiver of the right to forfeit the membership of the deceased was shown; and that there is no evidence of the reinstatement of any member of the local camp who was in ill health at the time, or who had not remained in good health for 30 days thereafter; and that, therefore, there is no competent evidence upon which the jury could find a waiver or estoppel of the defendant association to claim a forfeiture of membership. The contentions of the defendant association are not, however, sustained by the evidence or the law of this State.

Courts are always reluctant to enforce forfeitures, which are not favored and will not be enforced when against equity and good conscience (Knights Templars & Masons Life Indemnity Co. v. Vail, 206 Ill. 404). As a matter of fact, it has been an established policy to give ready consideration to any circumstances showing a waiver of forfeitures (Railway Passenger & Freight Conductors’ Mut. Aid & Benefit Ass’n v. Tucker, 157 Ill. 194).

The uncontradicted evidence in this case shows a custom on part of the local lodge of receiving dues after due date, without declaring a forfeiture of membership. It has been established that the subordinate lodge of a benefit society is the agent of the principal lodge, and if the benefit association permits the subordinate lodge and officers to receive dues in such manner as to justify a member in believing that the reasons for forfeiture specified in the by-laws have been waived, the society cannot set up a forfeiture incurred by relying upon such action, as a defense to a suit on the certificate (Dromgold v. Royal Neighbors, 261 Ill. 60).

It has likewise been held that conduct on the part of a mutual benefit society which amounts to a recognition of a member’s claim of continuing rights of membership, will relieve him of the consequences of his default. The receipt of assessments after default of payment is a common form of waiver which in most cases is a question of fact for the jury (Railway Passenger & Freight Conductors’ Mut. Aid & Benefit Ass’n v. Tucker, supra; Olszewski v. Fitchie, 287 Ill. App. 452).

In connection with the letter addressed to the deceased in the instant case, it has also been held that the letter of an officer of a benefit association, having authority, addressed to a member of a local lodge of such association, requesting or demanding payment of an overdue premium, amounts to a waiver of any right of the association, under its by-laws, to claim a forfeiture and suspension of the member in default, and such letter has been held, without other evidence, to amount to a waiver of the right to forfeit the membership (Waerness v. Independent Order of Foresters, 244 Ill. App. 211).

A case of particular interest in connection with the evidence and the law involved in the instant case, is that of Routa v. Royal League, 274 Ill. App. 152. In that case the facts in many respects approximated those in the instant case, and the pleadings were practically the same. The same contentions were made by the defendant on the point of reinstatement of the insured, but the court pointed out in that case, as is clearly true in the instant case, that it was not a question of reinstatement of a suspended member which the court was called upon to decide, but that the question was whether or not the insured’s membership had been suspended; whether or not the insurance had become forfeited; or whether the default in payment of the premiums had been waived. In that case the payment of the' past due premiums was made to the association, and accepted, after the insured was dead. The court in that case says (at p. 173):

“A fraternal benefit society will not be permitted to treat a benefit certificate as alive and in full force, and accept the member’s money over a period of years in violation of suspension and forfeiture provisions of its contract until death occurs, and then for the first time seek to void the certificate and escape its liability. Neither will such an association be permitted to insist on the forfeiture of a benefit certificate issued by it for nonpayment of assessments when due, where its course of dealings with the member has led her to believe that the provisions for forfeiture would not be relied upon. ’ ’

The conclusions of the court in the Routa case, supra, are equally valid in this case. The court in that case determined that the insured continued as a member of the fraternal benefit association and that the certificate of the deceased had not been forfeited prior to death. In the instant case it is our conclusion that James Harris was never suspended from membership and that his certificate was never forfeited. The course of conduct of the defendant association in accepting payment of assessments after due date, without insistence on suspension or forfeiture provisions; the custom of the defendant association as to payment of dues of other members of the local camp to which the deceased belonged, permitting the payment of dues in arrears without suspension or forfeiture; the letter addressed to the deceased by the secretary of the home office of the defendant association, requesting payment of assessments (and obviously considering the deceased as still a member by virtue of reference to the deceased as “sovereign”); the activity of the local lodge in the burial ceremonies of the deceased, and the formal resolution passed by the local camp in connection with the death of the deceased, unequivocally indicate that any provision of the constitution or by-laws of the defendant association requiring automatic suspension of membership or forfeiture of the insurance, was waived by recognizing the insured’s membership as continuing and his insurance still in force.

A substantial portion of the brief submitted on behalf of defendant association refers to the question of reinstatement and the payment of the assessment at a time when the insured was not in good health, or did not remain in good health for a period of 30 days. There is apparently some unnecessary confusion as to the issues in the case. Under the pleadings no issne of reinstatement of insured was raised. The pleas of defendant setting up reinstatement were answered or replied to by plaintiff through the allegation that the deceased was never suspended and that the insurance was not forfeited. Plaintiff, on appeal, makes no contention that there was any reinstatement effected by insured, but insists that the membership was never suspended, and that the insurance was never forfeited. As indicated above, we agree with that conclusion, and accordingly do not find it pertinent to discuss the issue of reinstatement raised by defendant association.

Defendant association has likewise complained of an instruction given by the court, on the theory that such instruction is an incorrect statement of law in that there was not included in such instruction a recital to the effect that if the deceased was ill at the time payment of the last premium was made, or did not remain in good health (apparently for 30 days), there could be no waiver through acceptance of such payment. In view of the basis of this decision, we do not believe that the addition of such statements would be justified, and under the facts as shown of record, we do not believe that any instruction on the question of waiver and reinstatement through payment of the last assessment, would be material. The giving of such instruction, in any event, was not of such prejudicial character as to require reversal under the facts shown in the record. The evidence in the case clearly shows plaintiff’s right to recover on the benefit certificate.

For the reasons stated in this opinion, the judgment of the circuit court of Williamson county will be affirmed.

Affirmed.


text:
    Louis Starr, Personally and as Next Friend for George Starr, Minor, and Maryan Chepusovich, Appellees, v. Louis Rossin, Appellant.

      Opinion filed November 8, 1939.
    Pope & Driemeyer, of East St. Louis, for appellant.
    Beasley & Zulley and Curt C. Lindauer, all of East St. Louis, for appellees.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from three judgments against Louis Bossin, in favor of Louis Starr, individually, for $59.60; of George Starr, a minor, of $1,000 (through his father as next friend); and of Maryan Chepusovich, for $1,500.

Louis Starr was the owner and driver of an automobile in which his minor son, George Starr, 13 years of age, and his neighbor, Maryan Chepusovich, were riding with him as passengers. All three plaintiffs appellees (hereinafter called plaintiffs) were riding in the front seat of Louis Starr’s automobile. The defendant appellant (hereinafter called defendant), Louis Rossin, a grocer, was driving along U. S. Highway No. 40 at a point where such highway has four lanes. The plaintiffs were in the automobile of Louis Starr, and were riding behind the automobile of Louis Rossin at a distance of between 35 to 48 feet. Both automobiles were traveling at the rate of about 35 to 40 miles per hour when defendant stopped or slowed down suddenly preparatory to, or in the course of, making a left turn. The automobile of plaintiff Louis Starr thereupon collided with the automobile of the defendant, and as the result of such collision, damages for personal injuries, and to the automobile of plaintiff, were claimed as against defendant.

The complaint charges that the said defendant, while driving eastwardly on the four-lane U. S. Highway No. 40, and without giving an appropriate hand signal, or warning, and in violation of sections 60, 65, and 67 of the motor vehicle law of the State of Illinois, proceeded to make a left-hand turn, and to cut across the other three lanes of the highway; that in so doing he suddenly stopped, and that defendant thereby caused a collision between his automobile and that in which the plaintiffs were riding, resulting in the damages complained of. The case was tried before a jury, who returned verdicts upon which the judgments were based. Defendant’s motion for peremptory instruction, his motion for judgment non obstante veredicto, and his motion for new trial, were denied, and the defendant appealed from the three judgments entered in favor of the plaintiffs.

Defendant relies for reversal upon the contention that the court should have allowed his motion for a directed verdict, or for judgment notwithstanding the verdict, or for a new trial. Defendant also contends that the judgments are contrary to the law and the evidence, because each of the plaintiffs were guilty of contributory negligence, and because the defendant was not guilty of negligence. Defendant also complains of certain given and refused instructions which will be discussed later in the opinion, and additionally contends that the verdicts are excessive. The latter contention as to the amount of the verdicts, while assigned as error, is not discussed in the argument, and under the circumstances will be considered as waived and will not be further considered in this opinion (People v. Herrin, 295 Ill. App. 590, 592; Trust Co. of Chicago v. Iroquois Auto Ins. Underwriters, Inc., 285 Ill. App. 317).

There is some conflict in the evidence, but the evidence of the plaintiffs fairly tended to establish that the defendant failed to signal with his arm in any fashion that he was about to make a left turn, or about to stop in the process of making a left turn. The only other signal which was given was the automatic lighting of the rear lights when the defendant applied his brakes. The evidence showed that the brakes were applied suddenly, and that the stop which the defendant made was abrupt. Defendant attempted to establish that he had signaled his intention to make a left turn by holding out his arm for a distance of about 100 feet. On the basis of the record, however, there was sufficient evidence fairly tending to sustain the causes of action of each of the plaintiffs.

. In the state of the record the question of due care on the part of each of the plaintiffs was clearly a question of fact for the jury to determine, and it cannot be said, as a matter of law, that it is negligence for a driver of one motor vehicle to follow another motor vehicle ahead of him within 35 to 48 feet. Under the circumstances the question of due care on part of the plaintiffs, and proof of defendant’s negligence, also raised a question for the jury, and it was not the province of the trial court to direct a verdict, or to enter a judgment notwithstanding the verdict (Blumb v, Getz, 366 Ill. 273, 277; Ulbricht v. Western Coach Lines, 289 Ill. App. 164, 165; St. Clair Nat. Bank of Belleville v. Monaghan, 256 Ill. App. 471). This has been the conclusion of the courts in factual situations such as are involved in the instant case (Hanusik v. Hanlon, 258 Ill. App. 114,118; Greene v. Citro, 298 Ill. App. 25, 30).

It is earnestly contended by defendant that the complaint of plaintiffs which charged the defendant with failure to give a signal by hand and arm before coming to a stop, and in not charging that the defendant failed to give a signal by a signal lamp or signal device, failed to state a cause of action, on the theory that the defendant signaled his intention to stop, or slow down, by lighting two red lamps in the rear of his car when he applied his brakes, and thus complied with the statute. No objection was made in the trial court to this paragraph of the complaint. The defendant joined issue on the charges of negligence stated in the complaint by denial of such charges. The case was tried upon that theory, that is, upon the theory stated in the complaint that the negligence of the defendant consisted in his omission-to give the proper signals before mailing a left turn and without a proper hand and arm signal before stopping.

By his failure to make an objection before the trial court regarding the sufficiency of the complaint as to the specific charges of negligence, the defendant waived objection to form, or of substance (Farmer v. Alton Building & Loan Ass’n, 294 Ill. App. 206; Carson-Payson Co, v. Peoria Terrazzo Co., 288 Ill. App. 583; Chamblin v. New York Life Ins. Co., 292 Ill. App. 532). Section 42 (3) of the Civil Practice Act [Ill. Rev. Stat. 1937, ch. 110, par. 166; Jones Ill. Stats. Ann. 104.042], expressly provides that all defects in pleadings, either in form or in substance, not objected to in the trial court, shall be deemed to be waived. Under the circumstances, defendant cannot now insist that the portion of the complaint discussed here, is insufficient (Farmer v. Alton Building & Loan Ass’n, supra).

Defendant has likewise contended that the plaintiffs violated section 61 (a) of the Uniform Act Regulating Traffic on Highways [Ill. Rev. Stat. 1937, ch. 95½, par. 158; Jones Ill. Rev. Stats. 85.190] of the State of Illinois, in that the car in which plaintiffs were riding was following defendant’s car more closely than was reasonable and prudent having due regard for the speed of the vehicles. It should be readily apparent that (as has been indicated above in this opinion) this court cannot arbitrarily say that any of the plaintiffs were guilty of contributory negligence by virtue of the fact that the automobile in which they were riding, or driving, was within 35 or 48 feet of that of defendant. The question was one for the jury under all the facts and circumstances. No arbitrary rule, under such circumstances, can be fixed by the court, nor, under the circumstances, can the plaintiffs be charged with the duty to anticipate any violation of law by the defendant, which might cause such collision as occurred in the instant case (Trout Auto Livery Co. v. People’s Gas Light & Coke Co., 168 Ill. App. 56, 50; Kilroy v. Justrite Mfg. Co., 209 Ill. App. 499).

The second instruction given on behalf of plaintiffs, after advising the jury that if the plaintiff, George Starr, acted in a manner that any other boy of his “age, intelligence, and experience” would have acted, advised the jury that “you may consider such age” without specifying again the elements of “intelligence” and “experience.” Defendant complains of such instruction because of Such omissions. The instruction does not undertake to direct a verdict, but simply advises the jury that it may consider such age. Under the view this court takes of the case, any error in such instruction, at the most, was harmless, and certainly not prejudicial, nor a sufficient basis for reversal under the facts presented in the record.

Defendant likewise complains of the court’s refusal to give an instruction which purported to review the statutory provisions relating to signal lamps or signal devices. Given instructions numbered 4 and 5, insofar as was pertinent under the evidence and the issues before the jury, sufficiently instructed the jury as to signaling. It was, therefore, not reversible error to refuse to give the instruction tendered.

Instruction No. 17 tendered on behalf of defendant, consisted of a recital of the provisions of section 61(a) of the Uniform Act Eegulating Traffic on the Highways. Such instruction was merely a repetition of an instruction given on behalf of defendant which refers to the same statute, and the refusal to give such instruction, under such circumstances, was proper.

Defendant, likewise, complains that the court erred in refusing to give the following instruction: “Now, the Court further instructs you that if you believe from the evidence in this case that the plaintiff, Louis Starr, was driving his motor vehicle in the rear of defendant’s car, and that he drove it more closely to defendant’s car than was reasonable and prudent, having due regard for the speed of both cars and the traffic upon and the condition of the highway, and that his so driving of his car was in violation of the statutes above quoted and caused or contributed to cause the collision and resulting injuries, and that the defendant was not negligent, then the Court instructs you that none of the plaintiffs are entitled to recover any damages in this case, and you should find the defendant, Louis Eossin, not guilty.” Such instruction is obviously erroneous in that it attempts to tell the jury that if plaintiff, Louis Starr, was negligent in driving too close to the defendant’s car, in violation of the statute, that none of the plaintiffs would be entitled to recover, and directs the jury, under such circumstances, to find the defendant not guilty. Such instruction (even though it contains a recital as to defendant’s freedom from negligence) would obviously tend to confuse the jury in that it gives no consideration whatever to the question of due care and caution on the part of the two plaintiffs who were passengers of the automobile of' Louis Starr. The court’s refusal to give such instruction was, therefore, proper.

This court must, therefore, conclude that there is no prejudicial error in the record which justifies a reversal and that the evidence fairly tends to sustain the judgments appealed from. Such judgments are accordingly affirmed.

Affirmed.