author: Mr. Presiding Justice. Barry

text:
    The People of the State of Illinois, Defendant in Error, v. Otis Smith, Plaintiff in Error.

    1. Intoxicating liquors — sufficiency of information for illegal possession. An information charging that defendant’s possession of intoxicants was unlawful and in violation of the Prohibition Act is sufficient, without including negative defensive averments covering the exceptions of the act.
    2. Jury — waiver of illegality by failure to exhaust peremptory challenges. The defendant in a criminal proceeding will not be heard to object to the overruling of his motion to quash the venire and return on the ground the jury were not drawn or selected as the statute requires, where the jury was secured before he had exhausted his peremptory challenges.
    3. Appeal and error — what bill of exceptions must include to review evidence. Whether the verdict is supported by the evidence will not be decided by the Appellate Court unless the motion for new trial, ruling of the court thereon and exception thereto are included in the bill of exceptions.
    4. Constitutional, law — applicability of federal constitutional limitations on fine and punishment. The United States constitutional prohibition of excessive fines or cruel and unusual punishments does not apply to legislation by the States.

      5. Constitutional law — exclusiveness - of power to fix punishment. The provision of the Illinois bill of rights that all penalties shall be proportioned to the nature of the offense is directed to the law-making power which alone can determine what acts are criminal and how they shall be punished.
    6. Constitutional law — lohen punishment for crime not excessive. Any punishment for crime assessed by a court or jury within the limits fixed therefor by a statute not in violation of the State constitution will not be adjudged excessive.
    7. Constitutional law — disa-etion in fixing punishment. The Appellate Court will not say that a punishment fixed by the trial court within the bounds prescribed by a constitutional statute is excessive.
    Error by defendant to the County Court of Saline county; the Hon. A. G. Abney, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed November 9, 1923.
    M. W. Dawson, for plaintiff in error.
    Charles H. Thompson, for defendant in error.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Presiding Justice. Barry

delivered the opinion of the court.

Plaintiff in error was tried and convicted under an information which charged that on February 1, 1923, at and within the County of Saline in the State of Illinois, he “unlawfully did then and there possess intoxicating liquor in violation of the Illinois Prohibition Act, contrary to the statute,” etc.

It is insisted that the information does not charge the commission of a criminal offense and the court erred in overruling a motion to quash. It is contended that- inasmuch as the possession of liquor may be lawful it is incumbent on the prosecutor to aver, in his information, such a state of facts as will negative a lawful possession on the part of the defendant. That it is not sufficient to aver that the-defendant unlawfully possessed the liquor in violation of the- act. ■ ■ ■

Section 3 of the act, Cahill’s St. eh; 43, f| 3, provides that no person shall possess any intoxicating liquor except as authorized in the act. Section 39, Cahill’s St. ch. 43, 40, provides that it shall not be necessary in any information or indictment to include any defensive negative averments, but it shall be sufficient to state that the act complained of was then and there prohibited and unlawful. The act complained of in this case is the possession of liquor ih violation of the statute. Every possession of intoxicating liquor is prohibited except it be' authorized by the act. The information charges that the possession was unlawful and in violation of the act and meets the requirements of said section 39.

Sections 3 and 39 of the Illinois Prohibition Act are the same as sections 3 and 32 of the National Act. The Federal courts are almost unanimous in holding that it is not necessary to include defensive negative averments in an indictment or information. The following are some of the decisions of the circuit court of appeals: Cabiale v. United States, 276 Fed. 769; Herine v. United States, 276 Fed. 806; Massey v. United States, 281 Fed. 293; Millich v. United States, 282 Fed. 604; Rulovitch v. United States, 286 Fed. 315. In the Rulovitch case, supra, the Supreme Court denied a writ of certiorari. There are other cases both State and Federal to the same effect.

It is argued that the jury was not drawn or selected in the manner required by the statute and that the judgment should be reversed because the court overruled a motion to quash the venire and the return thereon. The record shows that a jury was secured to try the case before plaintiff in error had exhausted bis peremptory challenges. That being true, he has no ground for complaint in that regard. People v. Gray, 251 Ill. 431; People v. Brown, 150 Ill. App. 365. We would not be warranted in assuming that he was compelled to accept any juror who was not fair and impartial. The fair inference is that the jury were satisfactory or he would not have accepted them so long as he had not exhausted his challenges.

The fifth instruction given on behalf of the People is in language of section 40 of the act, Cahill’s St. ch. 43, U 41, and was approved in People v. Beck, 305 Ill. 593. It is argued that the verdict is not supported by the evidence. We cannot consider that question because the motion for new trial, the ruling of the court upon the motion and an exception to such ruling are not incorporated in the bill of exceptions. It is not sufficient that the clerk, in writing up the judgment, recites the denial of a motion for new trial and an exception thereto. People v. Faulkner, 248 Ill. 158. But if that question were open for review, we are not able to say, from a consideration of all the evidence, that there is clearly a reasonable and well-founded doubt of the guilt of the accused, and so we are not warranted to interfere with the verdict of the jury on the ground that the evidence does not support it. People v. McCabe, 306 Ill. 183-187.

The final assignment of error urged upon our attention is as follows: “The sentence of the court imposed on the plaintiff in error is excessive and constitutes cruel and inhuman punishment, and is the result of passion, hatred and prejudice on the part of the court for the defendant and is neither legal, just or conscionable. ’ ’ The constitution of the United States provides that excessive bail shall not be required nor excessive fines imposed, nor cruel nor unusual punishment inflicted. But that provision does .not apply to legislation by the States. It is restricted exclusively to the Federal government, its courts and officers. Our constitution does not contain that provision, but the provision of our bill of rights is: “All penalties shall be proportioned to the nature of the offense.” That provision is directed to the law-making power, which alone can determine what acts shall be regarded as criminal and how they shall be punished. People v. Elliott, 272 Ill. 592-598.

Some reviewing courts hold that they have the power to reduce the punishment to meet their views as to what would be right and proper. In some States there are statutes which give appellate courts that power. It has been stated as a general rule, in cases where the objection was to the particular sentence and not to the statute under which it was imposed, that a sentence which is within the limit fixed by the statute is not cruel and unusual and is therefore valid and it has been held that this is true no matter how harsh and severe it may appear to be in a particular case, because the constitutional prohibition has reference to the statute fixing the punishment and not to the punishment, assessed by the court within the limits fixed by the statute. If the statute is not in violation of the constitution, then any punishment assessed by a court or jury within the limits fixed thereby cannot be adjudged excessive, for the reason that the power to declare what punishment may be assessed against those convicted of crime is not a judicial power, but a legislative power, controlled only by the provisions of the constitution. 8 R. C. L. 264.

The courts of last resort in New York, Indiana, South Carolina and some other States hold that where the sentence imposes a punishment which is within the limits prescribed by the statute they have no power to modify it on the ground that it is excessive under the peculiar circumstances of the case. People v. McGonegal, 136 N. Y. 62, 32 N. E. 616; Murphy v. State, 97 Ind. 579; State v. Davis, 88 S. C. 229, 70 S. E. 811, 34 L. R. A. (N. S.) 295. So far as we are advised, our Supreme Court has never reduced nor has it directed a trial court to reduce a sentence already within the limits of the statute in order that it might conform to the views of that court as to what punishment should have been inflicted. In the absence of such a decision we do not feel warranted in interfering with the discretion conferred by the statute upon the trial court. State v. Gould, 26 W. Va. 258; State v. Mooney, 27 W. Va. 546. It seems to us that the correct rule is the one recognized by the authorities above cited. The judgment is affirmed.

Affirmed,.


source: Caselaw Access Project

author: Mr. Presiding Justice Barry

license: Public Domain

text:
    Vina West, Appellee, v. Franklin Fire Insurance Company, Appellant.

    1. Insurance — burden of showing failure to furnish proof of loss. The insurer’s filing special pleas that the insured could not recover from, failure to furnish proofs of loss acknowledged that it had the burden of showing that no proofs of loss had been made by the insured.
    2. Insurance — waiver of proof of loss as sustaining averment thereof. Proof that an insurer has waived proofs of loss by the insured will sustain the latter’s allegation in her declaration for loss under a fire insurance policy that she furnished such proofs in accordance with policy terms.
    3. Insurance — necessity of pleading waiver of proofs of loss. In an action to recover loss under a fire insurance policy it is unnecessary to specially plead waiver by the insurer of the policy requirements for proofs of loss.
    4. Insurance — when insurer waives compliance with policy terms. An insurer’s denial of all liability under a policy because of the insured’s alleged breach of -warranty amounts to a waiver of compliance with the conditions .of the policy.
    5. Insurance — waiver of proof of loss. Attempt of an insurance company to cancel, after a loss, a policy for a breach of warranty, which attempt amounted to a denial of all liability, held a waiver of proof of loss by the insured.
    6. Insurance — misrepresentation not affecting divisible contract. Even though insured misrepresented the facts as to her house, this breach of warranty did not relieve the insurer for liability for loss to her barn, covered by the same fire insurance policy as the house.

      7. Appeal and error — what required in hill of exceptions for review of ruling .on motion for new trial. The clerk’s recital of denial of motion for new trial in writing up judgment will not obviate the necessity of including such motion in the bill of exceptions to secure review of the ruling thereon by the Appellate Court.
    Appeal by defendant from the Circuit Court of Massac county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed November 15, 1923.
    Wham & Wham and E. L. Snider, for appellant.
    W. L. Keane, for appellee.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellant insists that the court erred in refusing to direct a verdict in its favor. It is argued that appellee failed to prove the averment of her declaration that she furnished proof of loss in accordance with the terms of the policy and that the peremptory instruction should have been given for that reason.

The record discloses that'appellant filed special pleas to the effect that appellee was not entitled to recover because she failed to furnish proof of loss. By so doing appellant recognized that it had the burden upon that question and cannot now blame the trial court for so treating it. Appellant offered no proof in support of its said special pleas and is not in a position to claim that the court erred in refusing to direct a verdict.

But even if it should be held that the burden was upon appellee to prove the averment that she furnished proof of loss, yet proof of waiver sustains such an allegation. Waiver need not be specially pleaded. Gray v. Merchants’ Ins. Co. of Newark, 125 Ill. App. 370; German Fire Ins. Co. of Peoria v. Grunert, 112 Ill. 68-76; Continental Life Ins. Co. v. Rogers, 119 Ill. 474. Appellant proved that when it learned of the loss an adjuster was sent out to investigate and that upon receipt of his report appellant did all in its power to cancel the policy for a breach of warranty. The record does not disclose the date of the attempted cancellation, but it is quite clear that appellant intended, thereby, to deny all liability. A denial of liability on other grounds is a waiver of proof of loss and of other conditions in the policy. American Central Ins. Co. v. J. B. Henninger & Co., 87 Ill. App. 440. In the state of the pleadings and proof we would not be warranted in assuming that the cancellation of the policy was attempted after the time for furnishing proof of loss had expired.

The policy in question insured appellee’s dwelling for $500 and her barn for the same amount for a period of five years. The rate on each was $5.50 per year, making a total premium of $55. The barn was destroyed but there was no damage to the house. Appellant filed special pleas setting up that appellee made false answers to certain questions in her application with reference to the condition and value of the house and that she warranted said answers to be true. Upon the trial appellant offered to prove those pleas but the court held that the contract was divisible and that even if there were such representations as to the house appellant was not relieved from liability for the loss of the barn.

Counsel contend that the court erred in refusing to allow appellant to make that proof and cite many decisions from the courts of other States, which seem to support them. The courts are in a hopeless conflict on the question. Apparently there are about as many cases on the one side as the other. Counsel for appellant admit that there are some early decisions in this State which hold that the contract of insurance is divisible and that a breach of warranty as to one piece of property covered by the policy would not. avoid the contract as to the other property. The following are some of the cases evidently reférred to: Commercial Ins. Co. v. Spankneble, 52 Ill. 53; Hartford Fire Ins. Co. v. Walsh, 54 Ill. 164; German Ins. Co. v. Miller, 39 Ill. App. 633; Dwelling House Ins. Co. v. Butterly, 33 Ill. App. 626.

In view of those decisions and the great conflict on the question in other courts, no useful purpose would he served by an extended discussion of the matter. We are of the opinion that the court did not err in its rulings on evidence in that regard. It is also urged that the court erred in overruling appellant’s motion for a new trial. The motion is not in the bill of exceptions and cannot be considered. It is not sufficient that the clerk, in writing up the judgment, recites the denial of a motion for new trial. People v. Faulkner, 248 Ill. 158.

There being no other errors complained of the judgment is affirmed.

Affirmed.


author: Mr. Justice Boggs

text:
    Joe Meyers et al., Appellants, v. Joe Veres et al., Appellees.

    1. Covenants — when that against incumbrances brohen. The covenant against incumbrances, being in praesenti that the premises are free of incumbrance, is broken, if at all, the moment it is made.
    2. Covenants — when those of seizin and right to convey brohen. Covenants of seizin and good right to convey, being in praesenti, are broken as soon as made if the covenantor has not title.
    ■ 3. Damages — breach of covenant against incumbrance. On breach of covenant against incumbrance, the grantee can recover the damages actually sustained and if he has removed the incumbrance the sum paid therefor.

      4. Covenants — when grantee may sue for breach of incumbrance covenant. A grantee need not wait until he is evicted under an outstanding incumbrance on the land but may satisfy it and then resort to an action of covenant against incumbrance to recover damages.
    5. Damages — burden of proof oh breach of covenant against incumbrance. The grantee has the burden of proof to show the amount he paid to remove an outstanding incumbrance and that such sum was the reasonable and fair value of the interest acquired, in his action for damages for breach of a covenant against incumbrance.
    6. Damages — what not recoverable for breach of incumbrance covenant. The amount allowed a grantee for damages for breach by the grantor of a covenant against incumbrances, in ease of payment by the grantee to remove the incumbrance, should not exceed the amount paid with interest thereon.
    7. Instructions — when error to refuse. It is error for the court to refuse propositions of law correctly stating the law of the case, where no other propositions are submitted.
    8. Damages — sufficient ascertainment for breach of covenant against incumbrance. Although in a grahtee’s action for damages for breach of a covenant against incumbrances no showing is made that the sum the grantee paid for costs and attorney fees to remove the incumbrance was reasonable, the court will incline to consider the damages sufficiently-ascertained in view of the stipulation of the parties that the grantee was required to pay such amount in order to remove the incumbrance.
    Appeal by plaintiffs from the Circuit Court of Madison county; the Hon. J. P. Gillham, Judge, presiding. Heard in this court at the October term, 1923.
    Reversed and remanded.

    Opinion filed November 15, 1923.
    M. B. Sullivan, for appellants.
    B. W. Griffith, for appellees.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Justice Boggs

delivered the opinion of the court.

An action was brought by appellants against appellees before a justice of the peace to recover damages for an alleged breach of covenant against, incumbrances. A trial was had in the justice court and an appeal was taken to the circuit court of said county. A jury being waived a trial was had before the court, resulting in a finding in favor of appellees and a judgment was entered against appellants in bar of action and for costs. To reverse said judgment this appeal is prosecuted.

It was stipulated by said parties in substance as follows: That on June 3, 1920, Ferdinand Kraus and wife being the owners of Lot 19, Block K, First Addition to the City of Granite City, a lien was filed against the same, with other property owned by said parties, by the Internal Revenue Collector; thereafter Kraus and wife conveyed said premises by warranty deed to appellees, and on September 18, 1920, appellees conveyed said premises to appellants.

After the filing of said lien the government proceeded to advertise and sell said premises and on the sale bid the same in* and a certificate of purchase was issued therefor. After the period of redemption had expired a deed was executed to the government and the same was filed for record.

It was further stipulated in effect that upon learning of said incumbrance plaintiffs employed counsel and a bill in equity was filed in the United States District court for the purpose of clearing said title of said incumbrance; that while said suit was pending a quitclaim deed was procured from the government.

It was further stipulated by said parties that plaintiffs “were required to pay out for costs and attorney’s fees to remove said incumbrance, the sum of $235.00, ’ ’ and that the lien of the government was for $2,099.35. It was also stipulated that upon receipt of the deed from appellees, appellants went into possession of said premises.

It is the theory of counsel for appellees, as argued in his brief, that in order for appellants to show a right of recovery they must have been evicted or “something equivalent thereto.” In other words, counsel insists that in order to recover appellants must prove a breach of the covenant of warranty and for the quiet and peaceable possession of said premises, while appellants’ counsel contends that this is a suit to recover for breach of the covenant against incumbrances.

A statutory warranty deed is a conveyance in fee simple “with covenants on the part of the grantor, (1) that at the time of the making and delivery of such deed he was lawfully seized of an indefeasible estate in fee simple; (2) that the same were then free from all incumbrances; and (3) that he warrants to the grantee, * * * the quiet and peaceable possession of such premises. * * * And such covenants shall be obligatory upon any grantor, his heirs and personal representatives, as fully and with like effect as if written at length in such deed.” Section 9 of the Conveyances Act, ch. 30, Rev. St. Ill., Cahill’s St. ch. 30,1Í 9.

The covenant against incumbrances is covenant in praesenti that the premises conveyed are free and clear of all incumbrances, and broken, if at all, the moment it is made. 2 Sutherland on Damages (3d. Ed.), sec. 621; Brady v. Spurck, 27 Ill. 478.

Covenants of seizin and of good right to convey are covenants in praesenti, and if the covenanter has no title, they are broken as soon as made. Baker v. Hunt, 40 Ill. 264; 2 Sutherland on Damages (3rd Ed.), secs. 591-592.

On a breach of covenant against incumbrances, the grantee can recover such damages as he has actually sustained; if he has removed the incumbrance, he may recover the sum paid. Willets v. Burgess, 34 Ill. 494; Claycomb v. Munger, 51 Ill. 373; 3 Washburn on Real Property, p. 402, secs. 21-22.

Where there is an outstanding incumbrance on the land, the purchaser need not wait until he is evicted but he may satisfy the incumbrance and then resort to an action of covenant against incumbrance to recover his damages. Willets v. Burgess, supra; McConnell v. Downs, 48 Ill. 271.

In McCord v. Massey, 155 Ill. 123, the court, in discussing a question of the character here involved at page 125, says:

“Appellee, by his written agreement, covenanted with appellants that he would convey .to them or their assigns, by a good and sufficient warranty deed, a good title to the land in the agreement described. A compliance with that covenant would require appellee to convey to appellants or their assigns a title free from incumbrances. (Thompson v. Shoemaker, 68 Ill. 256; Morgan v. Smith, 11 id. 194; Brown v. Cannon, 5 Gilm. 174; Carpenter v. Bailey, 17 Wend. 244.) A right of dower is an incumbrance, within the terms of that covenant, and it is immaterial whether that right of dower is inchoate or consummate. Russ v. Perry, 49 N. H. 547; Carter v. Denman’s Exrs., 3 Zabr. 260; Porter v. Moyer, 2 Greenl. 22; Jones v. Gardner, 10 Johns. 266; Prescott v. Trueman, 4 Mass. 627; Walker’s Admr. v. Deaver, 79 Mo. 664; Bigelow v. Hubbard, 97 Mass. 195; Shearer v. Ranger, 22 Pick. 447.

“A right exists in the covenantee to remove an incumbrance where it is certain in amount, and he may pay off and discharge the same, and where he does so, and his deed contains a covenant against incumbrances, he may set off such sum as it was fairly and reasonably necessary to pay for such purpose, against the amount due for the purchase money of the premises. Grant v. Tallman, 20 N. Y. 141; Willets v. Burgess, 34 Ill. 494; Sargeant v. Kellogg, 5 Gilm. 273; Edwards v. Todd, 1 Scam. 462 ; Kaskaskia Bridge Co. v. Shannon, 1 Gilm. 15; Nichols v. Ruckells, 3 Scam. 298.”

The burden of proof, however, is on the grantee not •only to show the amount paid, but that such amount was the reasonable and fair value of the interest acquired. McCord v. Massey, supra, page 126 and cases there cited.

The amount of recovery in such case is never allowed to exceed the amount of the purchase money, with interest thereon. Willets v. Burgess, supra; Brady v. Spurck, 27 Ill. 478; McCord v. Massey, supra.

Two propositions of law were submitted by appellants setting for the law of the case in substantial accord with the holding in the foregoing authorities. Both of said propositions were refused by the court. As no other propositions were submitted we hold the court erred in refusing the same.

The stipulation of the parties clearly discloses that the lien in question constituted a breach of the covenant against incumbrances, and as said covenant was a covenant in praesenti a right of action accrued in appellants’ favor for the reasonable and necessary amount they were required to pay to remove the same. While the stipulation does not specifically state that the sum of $235 was a reasonable amount, it does say appellants were required to pay that amount in order to remove said incumbrance. We are therefore inclined to the opinion that under said stipulation the damages were sufficiently ascertained.

For the reasons above set forth the judgment of the court is reversed and said cause is remanded.

Reversed and remanded.


text:
    Lester Mulligan, Plaintiff in Error, v. Ethel Andel, Defendant in Error.

    1. Appeal and error — signature of judge on bill of exceptions as direction to file. The signature of a judge to a bill of exceptions presented in time authenticates the bill in the manner required by law, and is a direction to the clerk to file the bill.
    2. Appeal and error — date of presenting bill of exceptions as date of signing and filing.' Presenting a bill of exceptions, showing on its face that it is within filing time, to the judge for signing makes it his duty to regard the day thereof as the day for signing and filing.
    3. Appeal and error — when bill of exceptions may be filed after time allowed. If the time for filing a bill of exceptions expires without the judge signing it after it was presented to him in time, he may enter an order for filing nunc pro tunc, and upon failure to do so the clerk should file it as of the day it was presented to the judge.
    4. Appeal and error — presumptions in favor of bill of exceptions. Where the record shows that a bill of exceptions was signed by the judge before time for filing had expired and was filed, on appeal the clerk will be presumed to have done his duty and filed it in time.
    5. Highways and streets — what malees prima facie case of negligence against automobile driver. Under the Motor Vehicles Act, Cahill’s St. eh. 95a, Ilf 23, 43, a prima facie case of negligence of an automobile driver is made by showing that she was driving in excess of ten miles an hour through closely built parts of a city and that plaintiff was injured by the automobile.
    6. Highways and streets — rule for motor vehicles coming towards street cars. The Motor Vehicles Act, Cahill’s St. eh. 95a, If 41, requiring motor vehicles to pass not closer than 10 feet to street cars stopping for passengers, applies to motor vehicles coming from the opposite direction as well as those overtaking the car.
    7. Highways and streets — negligence of automobile driver as fact question for jury. Evidence showing that an automobile driver was driving faster than ten miles an hour in a closely built part of a city and not over three feet from a street car discharging passengers, in violation of a statute, makes question of fact for the jury of whether the driver was guilty of negligence in driving over and injuring plaintiff as he came from behind the street car.
    8. Highways and streets — contributory negligence in automobile accident as jury question. Whether plaintiff in stepping from behind a street ear and being hit by a closely and overspeedily driven automobile in violation of statute was guilty of contributory negligence barring recovery for his injuries is a question for the jury.
    9. Highways and streets — acts in excitement as not contributory negligence in automobile accident. That plaintiff, in his excitement at suddenly meeting a too swiftly driven automobile, after stepping from behind a street ear put his hand on the fender is not such negligence as will bar recovery for injuries sustained thereby.
    Error by plaintiff to the Circuit Court of St. Clair county; the Hon. J. E. Cillham, Judge, presiding. Heard in this court at the October term, 1923.
    Reversed and remanded.
    Opinion filed March 10, 1924.

      P. K. Johnson, for plaintiff in error.
    M. U. Hayden, for defendant in error.

      Received from clerk of Appellate Court, August 8, 1927.

   Mr. Presiding Justice Barry

delivered the opinion of the court.

In an action on the case to recover for personal injuries sustained in a collision with defendant’s automobile, the court directed a verdict and entered judgment thereon. A motion to strike the bill of exceptions from the files was taken with the case. The record discloses that the judgment was entered on May 5, 1921, at which time the court entered an order allowing 90 days in which to file a bill of exceptions, and that the bill was signed by the trial judge on June 22,1921. The motion to strike is based on the alleged fact that no bill of exceptions was filed in this cause. The trans-script of the record filed in this court contains the following recital: “Be it remembered that the following is a true and correct copy of the bill of exceptions in said cause as the same appears on file in my office.” The clerk’s certificate to the transcript is to the effect that the above and foregoing is a true and correct copy of the pleadings, all court orders and the bill of exceptions in this cause.

It is apparent, therefore, that the suggestion that no bill of exceptions was filed is contrary to the record. It may be that counsel mean that as the record does not show the date of filing it must be presumed that it was not filed within the time allowed by the court. Where the signature of the judge is attached to a bill of exceptions, which has been presented in time, the signature must be regarded as authenticating the bill in the manner required by law and authorizing it to be filed, and the act of the judge in signing amounts to a direction to file the bill. City of East St. Louis v. Vogel, 276 Ill. 490. If the bill is presented to the judge within the time allowed for filing the same and the fact is shown on the face of the bill, it is the duty of the judge to regard the day the bill is presented to him as the date upon which it should be signed and filed. If the time for filing expires in such case before the bill is actually signed, it is proper practice for the judge to enter an order for filing nunc pro tunc but if he fails to do so it is the duty of the clerk to file it as of the date it was presented to the judge. Madden v. City of Chicago, 283 Ill. 165-172.

Where the bill bears an indorsement that it was presented to the judge on May 20 and time for settlement fixed at June 5 and the signing of the bill appears to be on June 5, the fact that the bill shows it was filed May 20 does not show that the bill was filed before it was signed, but it will be presumed the clerk filed the bill as of May 20 after it had been signed. City of Lake Forest v. Buckley, 276 Ill. 38. In the case at bar the bill was presented to the judge, and signed by him, long before the time for filing had expired. His signature to the bill was a direction to the clerk to file it, and it was the duty of the clerk to do so. He had no authority to file it after the time expired. It is a general rule that public officers are presumed to have done their duty. The record shows that the bill was filed and we must presume that the clerk did his duty and filed it in time in the absence of a showing to the contrary. In Hall v. Royal Neighbors of America, 231 Ill. 185, and other cases relied upon by counsel for defendant, the record showed, affirmatively, that the bill was filed after the time had expired, so they have no application. The motion to strike the bill of exceptions from the record is denied.

The declaration consists of four counts in all of which it is averred that plaintiff was in the exercise of due care and caution. The first charges that defendant so carelessly and negligently drove her car that it struck and injured plaintiff. The second, that the car was driven at a speed greater than was reasonable and proper, having regard to the traffic and use of the street and exceeding a speed of ten miles per hour in the business district of Belleville. The third, that she gave no signal of the approach of her car and drove the same by a street car without stopping or giving heed thereto while the street car was stopped for the purpose of receiving and discharging passengers; that plaintiff alighted from said street car and was proceeding to cross the street when struck by defendant’s car. The fourth charges negligence in failing to comply with a city ordinance which required the driver of a car to keep as near to the right-hand curb as possible. The general issue ivas pleaded and at the close of plaintiff’s evidence the court directed a verdict for defendant.

The accident occurred on May 30, 1920, at about 7 p. m., when plaintiff was about 16 years of age. He and another boy about his own age boarded a westbound street car at the public square in Belleville to go to Turner Hall at the corner of Main and Tenth streets in that city. The street car tracks are on Main street and when the car reached Tenth street it stopped to receive and discharge passengers. The boys alighted from the rear north door and went around the back end of the car to cross over to the south side of Main street. The evidence tends to show that, at that time, defendant was driving her automobile east along Main street quite close to the south side of the street car. The other boy was ahead and got around the street car first. He saw the automobile coming and ran across the street ahead of it. Plaintiff testified that when he came around the back end of the street car he was walking and just as he stepped out from behind the car defendant’s automobile was very close to the side of the street car and to himself. In his excitement he put his hand.on the fender of the automobile about even with the front wheel, when he was thrown on the pavement and his right leg was run over by defendant’s car. Both bones were fractured above the ankle joint.

The evidence tends to show that Main street, at the place in question, passes through a closely built-up business portion of the city of Belleville. Under section 22 of the Motor Vehicles Act, Cahill’s St. ch. 95a, If 23, to operate a motor vehicle at such a place at a speed in excess of ten miles per hour is prima facie evidence that the person operating the same was running at a rate of speed greater than was reasonable and proper. And, under section 42 of the same act, Cahill’s St. ch. 95a, If 43, when the plaintiff makes such proof and also proves that he was injured by such motor vehicle he has made out a prima facie case of negligence. At least two Avitnesses testified that defendant was driving her car at a speed of from ten to fifteen miles per hour at the time in question. An ordinance was offered in evidence, without objection, which requires the driver of vehicles to drive as near the right-hand curb as possible. A civil engineer testified that the distance from the south rail of the street car track to the south curb of Main street is fourteen feet and three inches. There is evidence tending to show that the automobile was about a foot or a foot and a half from the south side of the street car as defendant drove by the car. Section 40 of the Motor Vehicles Act, Cahill’s St. ch. 95a, jf 41, provides that in approaching or passing a street railway car, which has been stopped for the purpose of receiving or discharging passengers, the operator of every motor vehicle shall not drive the same within ten feet of the running board or lowest step at such car, except by direction of a traffic officer.

We are of the opinion that said section of the statute applies to all cases where an automobile meets or overtakes a street car which has stopped at a street intersection to receive or discharge passengers. It is a matter of common knowledge that many people, on leaving a street car, go around the end of the car and across the street. The statute was passed in the interest of public safety. The language, “In approaching or passing a street railway car,” is certainly broad enough to include motor vehicles coming from the opposite direction, as well as those overtaking or going in the same direction as the street car. The first paragraph of said section provides that the driver of a motor vehicle, upon approaching a person or animal upon a public highway, shall give reasonable warning of his approach. It has been construed as applying to a meeting, an approach from opposite directions. Smith v. Hersh, 161 Ill. App. 83; Fitzsimmons v. Snyder, 181 Ill. App. 70.

An automobile is “approaching” another vehicle when it is coming up behind it. Gifford v. Jennings, 190 Mass. 55, 76 N. E. 233. “It is, morever, immaterial whether the automobile is approaching the team from the rear, or coming from the opposite direction.” Trombley v. Stevens-Duryea Co., 206 Mass. 516, 92 N. E. 764, 2 N. C. C. A. 806. Under a statute intended to promote the public safety, it was held that one who had passed a place of danger was “approaching” and entitled to warning of an intended explosion. Wadsworth v. Marshall, 88 Me. 263, 32 L. E. A. 588. A statute required the driver of any motor vehicle to stop when a street car was receiving or discharging passengers. The court held it applied to a motor vehicle coming from the opposite direction. Gilmore v. Orchard, 177 Wis. 149, 187 N. W. 1005.

We are of the opinion that there was sufficient evidence tending to prove negligence on the part of defendant to make it a question of fact for the jury. While counsel for defendant assert that no negligence was proven, they have not discussed the evidence bearing thereon, or the law applicable thereto. Their sole contention seems to be that plaintiff was guilty of contributory negligence as a. matter of law which authorized the court to direct a verdict.

■ A police-officer alighted frpm a- westbound street car at a street intersection where the car had stopped to receive and discharge'passengers. - He walked around the back end .of ..the car and immediately on stepping from behind the car was struck by the corner of an pastbound car. . It was contended that he was guilty of contributory , negligence, because he-did not. stop, look or listen before going upon the track, - and that the court should. have. directed a' verdict for defendant. We -held that under the evidence it was a question of fact for the jury. Stack East Si. Louis & Suburban Ry. Co., 152 Ill. App .613, and the judgment was affirmed in 245 Ill. 308. In that, case the Supreme Court, on page 310, said: ‘ ‘ Courts can. lay down no precise rule of action to be observed .by a man who, passing behind a street car, finds.himself suddenly confronted, without warning, by a rapidly moving car or other vehicle.. If, momentarily paralyzed or confused by the imminent danger, he does nothing, or takes a step or two in the wrong direction and a.collision results, it cannot be said, as a matter of law, that he acted in a manner, different from . that which might have been expected from a man .of ordinary prudence. It is not an extremely unusual situation, and each case, as it arises, must .be determined upon its own facts. There was evidence in this case that the car which struck the deceased was running at a rate of speed greatly in excess of the ten miles an hour limited by the ordinance; that the gong was not sounded within fifty or sixty feet .of the crossing where the. deceased was struck, and that the. east-bound car was - within, two or three feet of him as he came from behind the west-bound car. It was possible for him,, by. the exercise of a sufficiently high degree "of care, to have discovered the. eastbound car and not have got in its way. He-had, however, a right to rely upon, his- sense , of hearing as weir as of sight, and to expect the appellant, in running its car past another car stopped for the discharge of passengers, to give warning and to observe the ordinance of the city in respect to speed. While the negligence of the appellant did not relieve the deceased from the necessity of exercising care for his own safety, it is to be considered in determining whether his conduct was such as an ordinarily prudent man might have adopted under the circumstances, and that question was properly submitted to the jury.”

Under a similar state of facts the Stack case, supra, was followed in Welch v. Chicago City Ry. Co., 195 Ill. App. 146, and Elliott v. Trandel, 227 Ill. App. 359. In the latter case the deceased alighted from a westbound street car, where it had stopped to receive and discharge passengers, and passed around the rear end of the car in a southerly direction. As he was about to step across the north rail of the eastbound track he was struck by defendant’s automobile, which was going east in the eastbound car tracks. There was evidence that the defendant drove his car at a high rate of speed without giving warning of its approach. The court, on page 368, said: “Certainly it could not be held that in failing to turn his head to the west, until just as he was stepping over the north rail of the eastbound track, the deceased was guilty of negligence, as a matter of law, and whether, under all the circumstances involved, he was guilty of negligence, as a matter of fact, was a question for the jury to determine.” The court held that the trial court did not err in refusing to direct a verdict in favor of the defendant and the Supreme Court denied a writ of certiorari. The denial of the writ was an approval of the conclusions of the Appellate Court. Soden v. Claney, 269 Ill. 98.

Counsel for defendant argue that plaintiff ran into the side of the automobile and that defendant was not bound to assume that he would do so and that under such circumstances he is not entitled to recover. Plaintiff testified he was not running, but admits that he put his hand on the fender about even with the front wheel of the automobile. The fact that he did so, in his excitement, is not a bar in his action. Perryman v. Chicago City Ry. Co., 145 Ill. App. 187, aff’d in 242 Ill. 269; South Chicago City Ry. Co. v. Kinnare, 216 Ill. 451. In the latter case the court, on page 454, said: “There was testimony tending to show that while between the train and the buggy the deceased put his hand on the side of the motor car, and that this caused his wheel to ‘wobble’ and to come in contact with the trailer, which struck him and threw him to the surface of the street. But this act of the deceased could not be deemed contributory negligence as matter of law.”

In the case at bar, there was evidence tending to show that defendant was driving her car at a rate of speed in excess of ten miles per hour, in violation of the statute; that her car was within two or three feet of the street car, in violation of the statute and the city ordinance. Plaintiff had a right to expect that defendant would obey the statute and the ordinance and under the authorities above cited the question of contributory negligence was a question of fact for the jury. The court erred in treating it as a question of law and directing a verdict. The judgment is reversed and the cause remanded.

Beversed and remanded.


author: Mb. Pbesiding Justice Babby

text:
    Ellen Wardlow, Appellee, v. The Grand Lodge Brotherhood of Railroad Trainmen, Appellant.

    . 1. Fraternal beneficiara associations — burden of proving breach of certificate. . The burden of proving' a breach of a' fraternal beneficiary certificate, as raised by the society by special pleas in defénsé to an action thereon b.y the beneficiary, is. upon-the-society.
    2. Fraternal beneficiara ASSOCiATroNb-r-me.f7i.pd of proving .expulsion of member. A corporate society, relying .upon, the expulsion of a member in his action upon -his certificate, mtist' prove the expulsion by its records and not by statements of officers' or members!
    3, Fraternal beneficiary ASSOCiATioNS^renocaiion. 'of- charter as defense to action on certificate. - In an.:action Upon a fraternal beneficiary certificate, the defense that the, insured .was not.a member of thq society because the charter óf his lódgé was revoked will not be heard on appeal after failure specially to plead revocation or to offer competent evidence thereof. .' ' !
    .4. 1 Fraternal beneficiara ASSOCiATioNs^ró'ece.ssift/ of paying‘du'es after tender is refused. The failure of a- member of a fraternal-association to make further tender of dues .after refusal of dues by the society under a belief that the member .has been expelled, will not preclude a recovery on his certificate; hio legal expulsion having been proven.
    5. Instructions — misleading ó'n b'úrdeii 'of proof. An instruction which may mislead the jury into believing the burden of proof is upon' the party who does not have it is properly refused,■ . ' "
    Appeal.,by defendant from - the City Ooui;t ..of East .Stz L.ouis; .the Hon. W. F. Borders, Judge, presiding. Heard., in this .court at the, October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    Wm. P. Latjntz, for appellant.
    Beasley & Zulley, for appellee.

       Beeeived from clerk of Appellate Court, August 8, 1927,

   Mb. Pbesiding Justice Babby

delivered the opinion of the court.

Appellee was the beneficiary in a certificate issued by appellant to her son, Otto Wardlow. The insured died October 7, 1920, and appellee sued to recover the amount of the insurance. Appellant pleaded the general issue and also two special pleas. The first special plea set out section 11 of the constitution and general rules of the order and averred that the insured engaged in a strike on April 8, 1920, in violation of the provisions of said section and on account thereof was expelled on April 20, 1920, from the defendant order ■and from Lodge No. 545 of which he was a member and has never been reinstated. The material part of said section 11 is as follows: “Any member or members inciting a strike or participating therein, except as provided in general rule No. 10, shall upon conviction thereof be expelled. ’ ’

The second special plea set out section 129 of the constitution and general rules and averred that the insured failed to comply with the provisions thereof in that he paid no dues or assessments on his certificate for a period of six months prior to his death and the certificate thereby became null and void. Issues were joined and upon a trial before a jury appellee recovered a verdict and judgment for $1,500.

As to the issues raised by the special pleas the burden of proof was upon appellant. Supreme Tent Knights of Maccabees of the World v. Stensland, 206 Ill. 124; Knights Templars’ & Masons’ Life Indemnity Co. v. Crayton, 209 Ill. 550. When a benevolent society relies upon an expulsion of a member as a defense to an action brought upon his certificate of membership in the nature of a policy of insurance, it must prove expulsion by its records. Supreme Lodge of A. O. U. W. v. Zuhlke, 129 Ill. 298. It must be shown by some official action on the part of the society. The order being a corporate body, its attitude toward a member can be known only through its action as such corporation. It must appear from the minutes, proceedings or records -of the order itself and not by the statements of officers or members. Independent Order of Forresters v. Zak, 136 Ill. 185.

Appellant wholly failed to prove, in the manner required by the law, that the insured was expelled from the order. It is argued, however, that the charter of his lodge was revoked and he, thereby, ceased to be a member and was never reinstated. It is sufficient to say that such a defense was not raised by the special pleas nor was any competent evidence offered to show that the charter was revoked.

C. 0. Tuttle testified on behalf of appellant to the effect that he was the treasurer of the lodge of which the insured was a member and that the insured paid his dues up to May 1, 1920, and that the lodge ceased to exist on April 20, 1920. He also says that he met the insured on the street about May 1, 1920,- and told him that he had fixed him up in another lodge and that insured replied: “To hell with them; I am not going to pay any more dues into it.” When asked whether he knew of his own knowledge whether the insured paid any more dues, he answered: “I would have to take his word for that. I am testifying to what he told me himself. I don’t know whether he paid any dues after that or not.” Appellant produced no other evidence in support of its second special plea.

Appellee testified, without objection, that the insured paid his dues to May 1, 1920, that he offered to pay other dues but the agent refused to accept the same, and that he then sent the money to the head office of appellant at Cleveland, Ohio, and it was re-. turned with a letter stating that they would not accept any more dues from him, because he was no longer a member of the order. In response to a letter asking for blank proofs of death appellant’s general secretary and treasurer wrote appellee’s attorney statirig that “Otto Wardlow has not been a member of our organization since April, 1920, therefore, I am not mailing you blanks for filing proofs of his death.”

It is apparent that appellant was of the opinion that the insured had been legally expelled in April, 1920, and that it had refused to accept further dues from the insured. No legal expulsion was proven. When appellant informed the insured that it would receive no more dues from him and returned the draft which he had sent he was under no obligation to make any further tender. Travelers’ Ins. Co. v. Pulling, 159 Ill. 603-609.

Appellant’s first and fourth refused instructions were properly refused because they ignored the evidence on the part of appellee to the effect that insured had tendered dues which were refused. Its third and sixth were properly refused because there was no competent evidence that the insured had been expelled. The first clause of the fifth was cautionary and the second clause would be very misleading as the jury might very well understand that the burden of proof was upon appellee as to the issues raised by the special pleas. The court did not err in refusing it. No reversible error having been pointed out the judgment is affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Otto Simpson, Plaintiff in Error.

    1. Intoxicating liquors — sufficiency of information for illegal possession and transportation. An averment in an information that defendant unlawfully possessed and transported intoxicants in violation of the Prohibition Act is sufficient without negative averments covering exceptions in the act.

      2. Appeal and error — how petition for change of. venue made part of record. A petition for change of venue and supporting1 affidavits can only be made part of the record by inclusion in a bill of exceptions.
    3. Appeal and error — effect of failure to include' Change of venue petition in hill of exceptions. Unless change of venue petitions and supporting affidavits are made part of the record by inclusion in a bill of exceptions, rulings thereon will not be considered by a court of review.
    4. Appeal, and error — when hill of exceptions must he taken. A bill of exceptions must be taken at the term when the rulings are made or within such time as the court may at that term grant for the purpose.
    5. Instructions — when one given justifies refusing another. An instruction covered by one already given is properly refused.
    6. Instructions — not supported hy evidence. ■ An instruction having no evidence as a basis is properly refused.
    7. Instructions — apt to cause jury disagreement. An instruction highly calculated to cause disagreement of ihe jury is properly refused.
    8. Constitutional law — excessive punishment. The Appellate Court has no authority to interfere with a punishment fixed by the trial court within the limits prescribed by statute.
    Error by defendant to the County Court of Saline county; the Hon. A. G. Abney, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    Lightfoot & G-ustin, for plaintiff in error.
    Charles H. Thompson, for defendant in error.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Presiding Justice Barry

delivered the opinion of the court.

Plaintiff in error was tried and convicted under an information in which it was charged in the first count that at and-within the county of Saline, on March 3, 1923, he “unlawfully did then and there possess intoxicating liquor in violation of the Illinois Prohibition Act, contrary to the Statute in such case made and provided,” etc. In the second count it was- charged that on March 3, 1923, he “unlawfully- did then and there transport upon the highway intoxicating liquor contrary to the Statute, ’ ’ etc. It is contended that the information does not charge a criminal offense; that inasmuch as the possession and transportation of intoxicating liquor may be lawful it was incumbent on the prosecutor to aver in his information such a state of facts as would negative a lawful possession on the part of the plaintiff in error. That it is not sufficient to aver that he unlawfully possessed and transported the liquor in violation of the act. In several cases decided at the present term of this court we have held that such an information meets the requirements of section 39 of the Prohibition Act, Cahill’s St. ch. 43, 1Í4Q. '

It is argued that the court erred in overruling a petition for change of venue at the February term of the trial court. The petition for a change of venue, and the affidavits in support thereof, are not a part of the record, and can only be made so by a bill of exceptions, and unless thus preserved they cannot be considered by this court, although the clerk may have copied them into the transcript. Bedee v. People, 73 Ill. 320; People v. Ellsivorth, 261 Ill. 275. A bill of exceptions must be taken at the term when the rulings are made, or within such time as the. court may at that term grant for the purpose. Finch & Co. v. Zenith Furnace Co., 245 Ill. 586. In the case at bar no bill of exceptions was taken at the February term nor was the court requested to fix a time for presentation of a bill. We are not permitted to review the ruling of the court on the petition.

It is argued that the court erred in refusing to grant a continuance, but from an examination of the affidavits filed in support thereof it is apparent that they were wholly insufficient. The court did not err in giving the People’s third instruction. People v. Murray, 307 Ill. 343-347. The first refused instruction was fully covered by the tenth, given on behalf of plaintiff in error. His third refused instruction was .properly refused because there was no evidence on which to base it. The fourth refused instruction was highly calculated to cause a disagreement of tile jury and was properly refused.

It is contended that plaintiff in error was not proven guilty beyond all reasonable doubt. Perhaps that would be true if there was no evidence other than that disclosed by his abstract, but from the additional abstract it appears there was ample, evidence to support the verdict. It is finally argued that the punishment is excessive. The court did not inflict a greater punishment than is fixed by the statute. Whatever we may think about that matter we are of the opinion that we have no authority to interfere for the reasons stated in our opinion in the case of People v. Smith, ante, p. 119, filed at the present term of this court.

As no reversible error has been pointed out the judgment is affirmed.

Affirmed.


text:
    Blake-Silkwood Motor Company et al., Appellees, v. James A. Spires, Appellant.

    1. Replevin — change m affidavit upon entry of nevo defendant. Upon the point being raised in the trial court that a new defendant had been made party to a replevin suit, a new or amended affidavit can be filed in replevin where an amended declaration brings in an additional defendant.
    2. Appeal and error — objection first raised on appeal. The objection that a new affidavit had not been filed in replevin after the appearance of an additional defendant cannot be first raised on appeal.
    3. Replevin — right of chattel mortgage assignee. The assignee of a. chattel mortgage may, upon condition broken, maintain an action of replevin for the recovery of the mortgaged property.
    4. Chattel mortgages — time when breach occurs. When several notes maturing at different times are secured by chattel mortgage, and conditions of the mortgage are broken on default in payment of any one of the notes, it is optional with the mortgagee to take possession on the first default or to await maturity of the last note; and the same rule applies where there is one note payable in instalments.
    5. Chattel mortgages — rights not lost■ by delay .in taking possession. The assignee of'mortgaged goods, taking them before the debt matures under a mortgage duly recorded, has constructive notice and cannot complain that the mortgagee has lost its rights by delay in taking the goods into possession upon the maturity ofi the debt.
    6. Saving questions tor review — objection to defective mortgage acknowledgment. The objection that nothing in the record showed that the justice of the peace before whom the acknowledgment of a chattel mortgage was taken resided in the mortgagor’s precinct or where the property was located, cannot be considered on appeal where the objection was not made at the trial in replevin.
    7. Chattel mortgages — sufficiency of note. The provision of a note, “This note covers deferred instalments under a chattel mortgage made this day between the payee and maker hereof,” sufficiently shows that the note was secured by a chattel mortgage.
    8. Chattel mortgages — effect on lien of failing to exercise rights for breach. If a clause in a chattel mortgage prohibiting a transfer by the mortgagor without the mortgagee’s written consent authorizes the latter to possession on the breach, that is only an option to the mortgagee and he does not lose his lien on failure to take possession upon such a default.
    Appeal by defendant from the City Court of West Frankfort; the Hon. William G. Mitchell,0 Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    J. E. Carr and George Sawyer, for appellant.
    Williamb, Lewis & Cofféy and H. R. Deal, for appellees.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Presiding Justice Barry

delivered the opinion of the court.

On August 30,1921, the Blake-Silkwood Motor Company sold a Buick car to' a Mr. Felcher who made a cash payment and gave a note and mortgage to secure the balance of the purchase price.. The nóte was payable in ten monthly payments, the last of which was due June 30,1922. Early in 1922, Mr. Felcher bought a new car from Bidwell & Crawford and turned in-the Buick car as part payment. Bidwell & Crawford knew there was a mortgage on the Buick car but relied upon Mr. Felcher’s promise that he would clear it. On April 29, 1922, Bidwell & Crawford sold the Buick car to appellant who was .not advised that there was a mortgage against it. On September 12, 1922, BlakeSilkwood Motor Company began this suit in replevin against Joseph Spires for the recovery of the Buick car. Later appellant was. made,.a defendant. The declaration consists of two counts, one that defendant unlawfully took and the other that they unlawfully detained the car. Appellant entered his appearance in writing and joined with the other defendant, who is his son, in pleas of non cepit, non detinet and property and right to possession in appellant. The trial resulted in a verdict and judgment in favor of the plaintiff.

When the suit was originally begun against Joseph Spires a proper affidavit for the writ was filed. An amended declaration was afterwards filed making appellant a defendant but no new or amended affidavit was filed. Appellant entered his appearance and pleaded to the amended declaration. At no time, in the trial court, did he raise any question as to the lack of a new or amended affidavit. He admits that the court had jurisdiction of- the parties and the subject matter, but insists that without a new affidavit it had no. authority to proceed with the trial of the case. If the question had been raised in the trial court a new or amended affidavit could have been filed and it is now too late to complain. Ryan v. Schutt, 135 Ill. App. 554.

The note and mortgage were assigned by the mortgagee to General Motors Acceptance Company,. and reassigned to the mortgagee. When suit was begun the entire debt was past due and the mortgagor and his assigns were in default. ' The assignee of a chattel mortgage may, upon condition broken, .maintain .an action .of replevin for the recovery of the mortgaged property. Barbour v. White, 37 Ill. 164. Appellant insists that the ortgagor was in default on some of the monthly payments, long before he purchased the car; that it was the duty of appellee to have taken possession promptly upon default and having failed to. do so it lost its'right of property and possession.. Appellant, however, became the purchaser before, some of the payments were. due. ¡When several notes, matur: ing at different times, are, secured by chattel mortgage, and the. conditions of the mortgage are broken on default in payment"-of any one of the notes, it; is nevertheless optional with the mortgagee to take possession on the first default or to await the maturity of the. last note. Barbour v. White, 37 Ill. 164. By. waiting until th§ last note is due he does not endanger or lose his lien. Southern Illinois Nat. Bank of East St. Louis, v. Thaxton, 224 Ill. App. 554. The same rule of law applies where there is but one note and it is payable in instalments. Keelin v. Postlewait Co. 259 Ill. 130. It is also insisted .that, in any event., when.the debt had fully matured on June 30, 1922, it became the duty of appellee tó promptly take possession of the mortgaged property and having failed "to do so it lost its rights. of. property and possession. Appellant overlooks the fact that the mortgage was duly recorded and that he became the purchaser .before the maturity of the debt. He had constructive notice and, under the circumstances stated, cannot be heard to say that the mortgagor has lost any right, because it was not diligent in taking the propérty into possession. Arnold v. Stock, 81 Ill. 408; Sondheimer v. Graeser, 172 Ill. 297.

It is insisted that there is nothing in the record to show that the justice of the peace, before whom the mortgage was acknowledged, resided- in the same precinct of the mortgagor or where the property was located. When the mortgage was offered in evidence appellant, interposed, numerous specific objections to its introduction, but not the one now urged. We cannot consider objections which were not made in the trial court.

It is argued that the mortgage was void as to third parties because the note, which it was intended to secure, does not state upon its face that it is secured by-chattel mortgage. The note contains the following provision: “This note covers deferred installments under a chattel mortgage made this day between the payee and maker thereof. ” We are of the opinion that the foregoing language meets the requirements of the statute. No one could fail to understand that the note was secured by chattel mortgage.

Appellant in his reply argues a point not raised in his original brief and argument. For that reason, alone, we might very well refuse to consider it as appellee has no chance to answer it. It is insisted that under the terms of the mortgage the possession of the property was only to remain with mortgagor so long as the conditions of the mortgage were fulfilled; that one of the conditions was that the mortgagor should not transfer any interest in the property without the written consent of the mortgagee; that as the mortgagor sold the ear to Bidwell & Crawford without such consent, there was a default which made it the duty of appellee to take possession of the car within a reasonable time thereafter and, having failed to do so, it lost its lien as against appellant who subsequently purchased the car.

Under the statute the mortgage was a valid lien from the time it was filed for record until the maturity of the entire debt or obligation. The clause in the mortgage which' prohibited a transfer or sale by the mortgagor without the written consent of the mortgagee did not authorize the mortgagee to take possession in the event there was a breach thereof. But if it had contained such a provision it would be an option on the part of the mortgagee and he would not lose his lien because he failed to take possession upon such a default. Wilson v. Rountree, 72 Ill. 570. If appellant’s contention is sound, a mortgagee would be required to watch the mortgagor and the mortgaged property so closely that he would know when a sale was made in order that he might act promptly in taking possession at the risk of losing his lien. The mortgage also contains a provision that the mortgagor shall not use the car for hire without the written consent of the mortgagee. Would any one contend that if he violated that provision without the knowledge or consent of the mortgagee the latter would lose his lien unless he took possession promptly following such breach? In the case at bar there is positive evidence that appellee did not know the car had been sold by the mortgagor until about the time this suit was begun. The law is not so unreasonable as to hold that it lost its lien for a failure to take possession because of a breach of which it had no knowledge.

As no reversible error has been pointed out the judgment is affirmed.

Affirmed.


author: Mr;- Presiding Justice Barry

text:
    William Carlyle, Appellee, v. Charles R. Bartels, Appellant.

    1. Landlord and tenant — mho must pay taxes and assessments. Without an agreement on the part of a lessee to pay taxes and special assessments that duty is upon the owner of the land.
    2. Landlord and tenant — what agreement to pay taxes includes. A lessee's agreement to pay taxes does not include special assessments for local improvements.

      3. ' Landlord .-and TENÁNiw--).:epm/roe;ií: to., tenant, paying.'special

      assessments. A tenant who is-not required by'-'the lease.-to,pay- special assessments against the land, but who pays them. to. protect I)is lease-, hold estate, may recover the payments from the landlord. ‘ •
    4. Saving- questions fob review — use of praecipé'to avoid trariscHpt expense. Under Cahill’s St.' eh: 110, f 81, a party is entitled to 'file a praecipe for record directing: the clerk to insert such portions of . the record of proceedings in dispute as he deems .'sufficient;- to. -present errors he intends to assign and thus avoid extra expense of transcripting the record wherein it includes, su.ch proceedings. ,as fully set out.
    5. Appeal and error — when costs riot taxed for needle■ss! transcript. If an appellant concedes the validity of' assessment proceedings involved in suit, he cannot have the cost "of ineluding-sanid' in ■ the' tfáíiscript taxed against appellee, even though the latter refused to reasonably stipulate as to their contents.
    Appeal by defendant from, the. Circuit Court of Randolph county; the Hon. Louis Bernreuter, judge, presiding. Heard in this court at the October term; 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    Andrews & Beal, for appellant.'
    E. H. Wegemyer and: J. Fred' Gilster, for appellee»

       Received from clerk of Appellate Court, August 8, 1927.

   Mr;- Presiding Justice Barry

delivered the opinion of the court.

Appellee, in 1889, procured leases on certain lands for 50 years from the president and trustees of the Commons of Kaskaskia. At that time the land could be leased for that length of time but not sold. The legislature, in -1909, ■ authorized - the sale , oí such .lands and the lands in question, were "sold on May 28, 1912, and by mesne conveyances the title, subject to the leases, passed to appellant.. In 1917, a .drainage district was organized which embraces the--leased lands.A drainage assessment was levied and confirmed against' the lands which Was due January 1, 1919. On Jiily 28, 1919, appellant ■ served a written notice upon appellee to the effect that he was required by-the terms of his lease to pay the said drainage- tax and -.that if he did not do so by July 31, 1919, the leases would be terminated. Appellee paid the instalment then due and brought this suit to recover the amount so paid. Upon a trial before the court without a jury appellee recovered a judgment for $73.75.

Appellant does not contend that it was appellee’s duty, without an agreement, to pay the whole or any part of the assessment. He insists that in the light of the history of the title to the land appellee’s covenants should be construed as an agreement on his part to pay all special assessments levied against the land during the term of the leases. He insists that appellee simply paid what it was his duty to pay and there was, therefore, no consideration to support a promise to reimburse him. He argues that appellee, voluntarily, paid the assessment and is not entitled to recover. Appellee contends that he did not agree to pay special assessments; that it was appellant’s duty to pay them and as he refused to do so appellee had the right to] pay the same to protect his leasehold and the law im-; plies a promise on the nart of appellant for reimburse-ment.

The leases provide that appellee shall pay “all assessments for taxes, for all purposes that may be assessed against said premises, according to law, during the continuance of said lease,” and any failure to pay “the rent and taxes aforesaid” shall be considered a forfeiture of the aforesaid premises. We find nothing in the history of the title that would warrant us in construing the language used otherwise than according to its natural legal effect. It is a general rule of law that, in the absence of an agreement upon the part of a lessee, it is the duty of the owner of the land to pay. all taxes and special assessments. 24 Cyc. 1074; 37 Cyc. 790.

Where a lessee covenanted to pay “All the water tax and one-half of all other taxes levied on said property during said term of this lease for five years” the court held that special assessments for local improvements were not included. DeClercq v. Barber Asphalt Paving Co., 167 Ill. 215. In that case the court said: “Indeed, the distinction between a tax and a special assessment is so well understood that the law may be regarded as well settled that an agreement on the part of a lessee to pay the taxes on the demised property would not include a special assessment. When, therefore, the parties, in making this lease, used the word ‘taxes,’ it will be presumed they intended it should have the same meaning which has been placed upon it by the courts.” The conclusion reached in that case was based upon previous decisions arising under statutes which exempted property from all taxation of every kind and which held that special assessments for local improvements are not within the statutes. That rule was announced in the Trustees of Illinois and Michigan Canal v. City of Chicago, 12 Ill. 403; County of McLean v. City of Bloomington, 106 Ill. 209; City of Chicago v. Baptist Theological Union, 115 Ill. 245; Illinois Cent. R. Co. v. City of Decatur, 126 Ill. 92; County of Adams v. City of Quincy, 130 Ill. 566.

Appellee agreed to pay the taxes but did not agree to pay the special assessments against the land. Appellant made no showing or claim that it was appellee’s duty, without an agreement, to pay the assessments, or any part thereof. That being true the general rule of law required appellant to pay the same. The assessment was against the land and every interest therein. It was necessary for appellee to pay the same in order to protect his leasehold estate and when he did the law implied a promise on the part of appellant to reimburse him. Appellant is in no position to claim 'that there was no consideration to support a promise, or that appellee made a voluntary payment which he may not recover.

Appellant filed a motion in this court to have a portion of the cost of the transcript of record taxed to appellee which was taken with the case. The ground of the motion is that appellant offered to stipulate on the trial that the drainage district was regularly organized and that the assessment was levied and confirmed in accordance with the law but that appellee declined to accept the stipulation and made it necessary to offer 84 pages of the proceedings which was wholly ■ unnecessary and for which appellant had to pay in order to get a transcript of the record for this court. It may be that appellee’s conduct, in that regard, was unreasonable, but under section 81 of the Practice Act, Cahill’s St. .ch. 110, ft 81, appellant could have filed a. praecipe for record directing the clerk to insert such portions of the record as he deemed sufficient to fairly present the errors he intended to assign. If he conceded the validity of the assessment proceedings there was no occasion to have the same included in the transcript and the motion to tax the cost thereof to appellee is denied.

Appellant suggests that the court erred in some of its rulings on the admission and exclusion of evidence, but we are of the opinion that no reversible error was committed. The trial was before the court without a jury and there is ample competent evidence to support the judgment. The evidence excluded by the court was not competent. Appellant does not question the amount of the judgment if appellee is entitled to recover anything. His claim that appellee agreed to pay any special assessment that might be levied against the land is without merit. The judgment is affirmed.

Affirmed.

The cases of Joseph DeRousse v. Charles R. Bartels, Term No. 35; Elizabeth Peerman v. Charles R. Bartels, Term No. 36; Ray Picou et al. v. Charles R. Bartels, Term No. 37; and Louis E. Buatte v. Charles R. Bartels, Term No. 38, were, at the October Term, 1923, on motion and without objection, consolidated with the foregoing case of William Carlyle v. Charles R. Bartels, Term No. 34, as the facts" in these cases were all of a similar character and raised the same question of law.

The judgments in these cases were Joseph DeRousse v. Charles B. Bartels, Term No. 35, for sum of $92.36; Elizabeth Peerman v. Charles R. Bartels, Term No. 36, for the sum of $242.27; Ray Picou et al. v. Charles R. Bartels, Term No. 37, for the sum of $141.63; and Louis E. Buatte v. Charles R. Bartels, Term No. 38, for the sum of $367.62.

For the reasons hereinabove set forth, the judgment in each of these cases is hereby affirmed.

Judgments affirmed. :


text:
    C. H. De Bow, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.

    1. Juey — right to peremptory challenge as affecting ruling on cause challenge. If a party still has peremptory challenges remaining when the jury is sworn, it cannot be said that there was compulsion to accept any juror because an objection to him for cause was wrongly overruled.
    2. Jury — improper questions showing insurance of automobile. In an action for negligent destruction of an automobile, it is improper to ask questions of the jury on the voir dire for the purpose of informing them that the owner was insured. . ■ . .
    3. Bailroads — limits on use of senses at crossing. Nonuse of sight or hearing by a motor vehicle operator at a railroad crossing may be excused where the view is obstructed by intervening objects, or smoke, dust or the darkness of night, or where other and louder noises may confuse the hearing, or where the movement of trains or other moving objects in the vicinity demand attention.
    4. Bailroads — opportunity to see danger at crossing as- requiring seeing it. If plaintiff in an action against a railroad for negligently destroying his automobile at a crossing had an unobstructed view of the crossing and had no reason not to see an approaching train, the court will disregard his testimony that he did not see it although there is no evidence to contradict him.
    Appeal by defendant from the City Court of Bast St. Louis; the Hqn. William F. Borders, Judge, presiding. Heard in this "court at the-October term, 1923.
    Reversed and remanded.
    Opinion filed March 10, 1924.
    Keefe, Baxter & Miller, for appellant.
    " Farthing & Farthing, for appellee.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Presiding Justice Barry

delivered1 the opinion of the court.

• Appellee sued to recover for the loss of his automobile alleged to have been caused by the negligence of appellant in a gráde crossing collision on 18th street in Granite City. The declaration charged general negligence in the operation of the train, the violation of a city ordinance which limited the speed of trains to ten miles per hour, and a failure to ring a bell or sound a whistle as required by statute. The general issue was pleaded and appellee recovered a verdict and judgment for $1,300.

It is urged, as a ground for reversal, that the court erred in sustaining objections to three questions asked each juror on the voir dire. So far as the record shows, appellant still had five peremptory challenges when the jury was sworn. That being true, we would not be" warranted in assuming that it was compelled to accept any juror who might not be fair and impartial. People v. Gray, 251 Ill. 431; People v. Brown, 150 Ill. App. 365. The fact that appellant did not usé any of its peremptory challenges would indicate that the'purpose in asking the questions was to inform the jury that appellee was insured and such an examination is improper. Mithen v. Jeffery, 259 Ill. 372, and cases cited. ...

All of the witnesses say that the speed of the train was more than ten miles per hour. There is the usual conflict as to whether the statutory signals were given. The evidence of negligence on the part of appellant was Sufficient to make it a question of fact for the jury. It is seriously contended that appellee was not in the exercise of due care and caution for his own safety and that of his property just before and at the time of the collision.

The accident occurred at about one o’clock on a bright, sunshiny day. A number of tracks cross 18th street in a northeasterly and southwesterly direction. At the crossing the first track on the westerly side is the Chicago & Alton main track, which is used by that company and appellant for trains going to St. Louis. The next track to the east is appellant’s main track and is used by both companies for trains leaving St. Louis. About 90 feet from the crossing a switch track called the Commonwealth Lead, connects with said C. & A. main track or the westerly track at the crossing. For some distance south of the crossing 18th street runs parallel to the tracks aforesaid and on the west side of said switch track. About 100 feet north of the office of the Commonwealth Steel Company, it turns and crosses the said main tracks almost due east and west.

On the day in question appellee drove to the office of the Steel Company, and in doing so crossed the main tracks aforesaid and others at 18th street from the east. A few minutes later he turned and started back over the same route. He had been familiar with this crossing and the surroundings for 18 years. He was 52 years old and so far as the evidence shows his sight and hearing; were good. He says that as he approached the crossing from the west on his return trip another car was coming across the tracks, and as the crossing is only about 14 feet wide he" stopped his car about 3 feet west of the west rail of the C. & A. main track and about 16 feet from appellant’s main track to let the other car pass before starting across.

Appellee says that while he was waiting for that auto to come over the crossing he observed his view down the track to the south was obstructed by one or more box cars that stood on the first track about a car length from the. crossing, but he could not tell whether there was one car or a hundred. He says he knew he could not see down the track until he passed the box cars and for that reason he lowered his windows, looked both ways for trains and listened, but he neither saw nor heard any train. He says that after the other auto came across he started but did not look for trains after he had cleared the box cars, because he was going 15 miles an hour at the time and that just as he was upon the second track he was struck by appellant’s train coming from the south.

Mr. LePartis was a witness for appellee and says the box cars were not on the first or C. & A. main track, but were on the side track.west of it and which joins the said main track about 90 feet south of the crossing. He says he was coming south along appellant’s main track and when about 50 feet north of the crossing he saw appellee pull over to the right to let another car pass; that he saw the train coming and thought appellee had stopped to let it go by, but that he drove onto the crossing just in time for the train to hit him. This witness says that 18th street runs almost parallel with the tracks from the office of the Steel Company, to the crossing, a distance of about 100 feet, and that the box cars and the office of said company would be between a man while driving along there and a train on appellant’s track. He then says that in going from said office to the crossing appellee would have to go 45 feet before he could see appellant’s main track, but from there on up to the crossing there was nothing at the time of the accident to prevent appellee from seeing the train. The plat and photographs in evidence show the office of the Steel Company is west of 18th street and the tracks. We cannot see how it could be an obstruction to appellee’s view of the approaching train at any time after he left the office.

Mr. Woods, another witness for appellee, says that he was at the stamping works 200 or 300 feet east of appellant’s main track. On direct examination he says that the box cars were on the track east of appellant’s main track, on the stamping works’ side, and that they were two or three car lengths from the crossing. He was then asked several questions by counsel for appellee and some of his answers were to the effect that the box cars were on the side track west of the C. & A. main track, while others indicate that he meant that they were east of appellant’s main track. On cross-examination he says they were on the C. & A. main track and about three or four car lengths from the crossing. He says there,were between one and three or four cars. He does not say he was closer than 200 or 300 feet of the crossing at any time and says that he did not see the train until it was coming to a stop and that when it stopped two cars of the train were south of the crossing. His testimony as to the location of the box cars is quite conflicting.

Appellee offered no further evidence as to the location of the box cars. Witnesses for appellant say that there were no box cars on the O. & A. main track. Mr. LePartis, the witness for appellee, was at the crossing at the time of the collision and he says the box cars were not on the 0. & A. main track, but on the side track west of it and 150 feet from the cross-, ing. There is undisputed evidence that the “D” rail for that side track is 259 feet south of the crossing and that if any cars were placed on that track nearer to the crossing than 259 feet the whole plant would be out of commission, and the tower would not throw the switches. There is no claim that such a condition existed at the time in question. There is no claim that an engine was attached to the box cars.

Under the evidence in this record the jury was not warranted in finding that the box cars were on '.the C. & A. main track. The only reasonable inference to be drawn from the evidence is that if there were box cars in the vicinity they were on the side track west of the C. & A. main track and at least. 259 feet south of the crossing. If they were at that point they were 25 or 30 feet west of appellant’s main track, and were still farther west of the point where appellee stopped at the crossing, because the tracks bore to the northeast and 18th street crosses them almost due east and west.

We are at a loss to understand how box cars so situated, with reference to this crossing and appellant’s main track, could have obscured appellee’s view of the approaching train. Mr. Bruchs was driving the car that came over the crossing from the east just before appellee started across. He says he saw and heard the train and the bell ringing. That when he passed appellee he (the witness) came, almost-to a'stop; that he saw the train at that time, and it was ■ about 150 feet from the crossing in plain view and that there was nothing to prevent appellee from seeing it, and that appellee started across and was struck.

In Lake Shore & M. S. R. Co. v. Hart, 87 Ill. 529, at page 534, the court said: “This court has, time and again, decided that it was the duty of every, person about to cross a railroad track, to approach.caiitiously, and endeavor to ascertain if there is present danger in crossing, as all persons are bound to know, that such an undertaking is dangerous,! and that they must take all proper precautions to avoid accidents in so doing, otherwise they could, not recover for Injury thereby received. ’ ’ The use of the senses of sight and hearing is the most obvious and practicable means of avoiding injury in such cases, but occasions may, and often do, arise where the use of those senses would be unavailing, or where their nonuse may be excused. The view may be obstructed by intervening objects, or by smoke, dust or the darkness of the night. Other and louder noises may confuse the senses. The movement of other trains, or other moving objects in the vicinity may demand attention. All of these matters have an important bearing in determining whether a plaintiff was in the exercise of due care and caution for his own safety.

In the case at bar, appellee’s excuse for not seeing the train is that there were box cars which obstructed his view. It seems entirely improbable from the record in this case that the cars were in a position to interfere with his view of the approaching train. If the cars did not obstruct his view then there was no reason why he should not have seen the train if he looked.

If a person looks he is supposed to look for the purpose of seeing, and if the object is in plain sight and he apparently looks but does not see it, it is manifest he does not do what he appears to do: The law will not tolerate the absurdity of allowing a person to testify that he looked and did not see the train when the view was unobstructed and where, if he had properly exercised his sight, he must have seen it. Such is the language of the courts in variant form in the following cases: Chicago, P. & St. L. Ry. Co. v. De-Freitas, 109 Ill. App. 104-106; Chicago & A. R. Co. v. Vremeister, 112 Ill. App. 346-351; Chicago, R. I. & P. Ry. Co. v. Jones, 135 Ill. App. 380-384; Toledo, St. L. & W. R. Co. v. Gallagher, 109 Ill. App. 67; Kennedy v. Alton, G. & St. L. Traction Co., 180 Ill. App. 146-149. There may be such inherent improbability in the testimony of a witness as to authorize a court or jury to disregard it, even though there is1 no contradictory evidence by other witnesses. Kuehne v. Malach, 286 Ill. 120; Stephens v. Hoffman, 275 Ill. 497; Kennedy v. Modern Woodmen of America, 243 Ill. 560.

The main defense relied upon by appellant is contributory negligence. In view of the foregoing rules of law, and the state of the evidence, the court erred in refusing appellant’s 16th and 17th refused instructions. The refusal of substantially the same instructions in Chicago City Ry. Co. v. O’Donnell, 208 Ill. 267, and Fowler v. Chicago & E. I. R. Co., 234 Ill. 619, was held to be reversible error.

The judgment is reversed and the cause remanded.

Reversed and remanded.