author: Mr. Presiding Justice Eldredge

text:
    Maton Bros., Inc., Appellee, v. Central Illinois Public Service Company, Appellant.
    Gen. No. 8,558.

      Opinion filed January 16, 1933.
    James Vause, Jr., Carl D. Kiger, John E. Hogan and E. E. Dowell, for appellant; Joseph E. G-oodbar on the brief; J. I. Dilsaver and John W. Coale, of counsel.
    Church, Haet, Robertson, Crowe & Spence and Carl H. Preihs, for appellee; John W. Fribley, of counsel.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Appellee recovered a judgment against appellant in the circuit court of Shelby county for the sum of $89,320.16. A jury was waived and the cause submitted to the court for trial.

The declaration consists of an amended count of trespass quare clausum fregit and three counts in case. In the amended trespass count it is alleged in substance that plaintiff is now and has been since October 3,1927, the owner of certain described real estate consisting of two tracts of land, one containing 4.7 acres and the other 12.86 acres which are contiguous and constitute a single parcel, and which have been continually used by the plaintiff for the purpose of maintaining greenhouses thereon for the production of roses for sale in the market and for the growing, grafting and propagation of rose plants; .that in the proper management of the greenhouses on said property it became necessary for the plaintiff to construct and maintain drain tile for the purpose of conducting from said greenhouses excess water accumulating therein and the surface water falling upon the roof and grounds surrounding said greenhouses; that there was constructed a system of tile drains leading from the most southerly of the greenhouses upon the land in a northeasterly direction in the ground and under and across said grounds and greenhouses thence to an outlet beyond the property of the plaintiff; that at the time it acquired the property aforesaid there was situated thereon greenhouses in which were many thousands of rose plants which were in an apparently healthy condition; that about the year 1917 the defendant became possessed of and was using and operating a gas plant including among other things gas mains through which it caused gas to be carried from that date until and after the 4th day of December, 1929; that on or about October 2, 1927, the defendant, with force and arms and without knowledge, consent or approval of the plaintiff, broke and entered into the close and parcel of land above described herein so owned and possessed by the plaintiff, and caused large quantities of gas to be carried through a certain gas main which had theretofore been laid in the ground there belonging to the plaintiff, in such manner that the plaintiff could not by ordinary observation see or become aware of the presence of said gas main; that since October 3, 1927, the defendant has maintained said gas main upon said property for transporting gas there-through, all without the knowledge, consent or approval of the plaintiff; that said gas is a commodity highly deleterious and injurious to both human and plant life, which was well known to the defendant; that on October 3, 1927, said gas pipe became and was in such a weak condition that the walls thereof gave way and permitted the gas therein to escape from said main thence continuously and until December 5, 1929, into and through the soil of the property of the plaintiff and into, along and through the tile drain of the plaintiff aforesaid, and thereby did escape into and permeate the greenhouses maintained by the plaintiff upon said -property, and thereby weakened and in some instances destroyed the rose plants of the plaintiff growing in the greenhouses and rendered them unproductive and incapable of producing any but a few roses of inferior quality; that when plaintiff discovered that the rose plants in said greenhouses were unhealthy and not bearing in a normal way, it exerted every reasonable means to discover the cause thereof, but owing to the fact that said gas main was concealed underneath the land of the plaintiff, the plaintiff had no knowledge of the existence thereof until about December 5, 1929, when plaintiff discovered that the gas from defendant’s main was escaping therefrom and entering into the greenhouses aforesaid and injuring the rose plants therein contained ; that by reason of the gas of the defendant and the injury to the rose plants by the gas escaping from the gas main as aforesaid, the quantity and quality of the roses produced by the plants in said greenhouses have been greatly diminished and many of the said rose plants were killed or rendered valueless, and the plaintiff has lost and been deprived of large gains and profits which it otherwise would have had had it not been for the wrongful acts of the defendant aforesaid and the gas escaping from the main maintained by the defendant ■ as aforesaid and injuring the said rose plants of the plaintiff, and other wrongs to the plaintiff then and there done, etc.

In the first count in case it is alleged that it was the duty of the defendant to use due care and caution to keep said gas main in a condition well calculated to prevent the gas therein contained from escaping therefrom into the surrounding soil and not permit it to escape from said main so as to injure the property of the plaintiff; that the defendant negligently and carelessly permitted said gas main to deteriorate and the walls thereof to become weakened and perforated with holes permitting the illuminating gas which was being transported through it to escape and enter the greenhouses and thereby come in contact with, affect, injure and destroy the rose plants therein and thereby prevent said rose plants from producing large quantities of roses which they otherwise would have produced, and depriving the plaintiff of large gains and profits. Also it is alleged in this count that in the use of said gas main it was the duty of the defendant to make periodical inspections thereof for the purpose of ascertaining whether it was in a condition that would not admit gas escaping therefrom into the adjoining soil, but the defendant, wholly disregarding its duty in that regard, carelessly and negligently failed to inspect said mains and thereby ascertain, as it well might have done, that the walls of said mains were in a weakened condition and so perforated as to permit the illuminating gas therein to escape therefrom, etc.

In the second count in case it is alleged that by reason of the premises it was the duty of the defendant to use due care to maintain said gas main so that gas might not escape therefrom, but that the defendant did not exercise due care and diligence in that behalf but negligently maintained said gas main so that it became in such a weakened condition that the walls gave way and permitted the gas therein to escape therefrom through the soil and property of plaintiff and through the tile drain into the greenhouses, etc.

In the third count in case it is again alleged that it was the duty of the defendant to make periodical inspections of said gas main for the purpose of ascertaining whether it was in a condition it would not admit of gas escaping therefrom into the adjoining soil, etc., and the breach of such duty.

To the amended trespass count there are three pleas, the first of which is not guilty. In the second it is alleged that at the time said gas main was laid in and across the 4.7-acre tract, said tract was then owned and possessed by Charles E. Myers and Clara M. Hayward, as trustees of William E. Hayward, who were at said time using said tract for agricultural purposes; that on April 17, 1915, said trustees conveyed the tract to Mary E. Dennon and on the same day and year Mary E. Dennon conveyed the same to Clara M. Hayward; that plaintiff acquired title to said tract from the Pana Floral Company by deed dated March 25, 1927, and that plaintiff acquired title to the 12.86-acre tract by deed from Walter A. Amling Company October 3, 1927; that said gas main was laid in and across said 4.7-acre tract with the knowledge, acquiescence and approval of the then owner thereof, and it so remained up to and including the 5th day of December, 1929, and no remonstrance or revocation was ever made or communicated to the People’s- Gas Company or any of its officers or agents or vendees against, or of, the continued use of said gas main notwithstanding the fact that said People’s Gas Company had used said main continuously from the time of its installation to the time when it sold and conveyed its property to the defendant; that said People’s Gas Company sold and conveyed all its tangible assets and assigned its rights and privileges to operate a gas plant and to distribute gas through its mains to the defendant on the 29th day of June, 1917, and said People’s Gas Company covenanted and guaranteed with and to the defendant that it was lawfully seized of the irrevocable right to maintain its gas mains and fixtures during the life of the license granted to said People’s Gas Company and all of the officers and stockholders of said People’s Gas Company as individuals signed and sealed said written guaranty; that after defendant purchased said gas plant from the People’s Gas Company it continued to manufacture and distribute gas through the gas mains laid and installed by said People’s Gas Company under a pressure of two pounds including the gas main so laid by the People’s Gas Company in 1913 or 1914 in and across said 4.7-acre tract; that the plaintiff acquired said tract on March 25, 1927, by warranty deed from the Pana Floral Company and has since owned and possessed the same and acquired the second tract (12.86 acres) by warranty deed from Walter A. Amling Company and has since owned and possessed the same; that neither defendant nor any of its officers, agents, servants or employees ever at any time invaded, intruded into or entered the second tract (12.86 acres) and that neither the defendant nor any of its officers, agents, servants or employees ever at any time or under any circumstances invaded, intruded into or entered upon the first tract (4.7 acres) and this the defendant is ready to verify. .

The third plea is one of the statute of limitations of five years.

To the second plea set out the plaintiff filed two replications, in the first of which it is alleged that plaintiff acquired possession and title to the property in question without any knowledge of the existence of the gas main aforesaid on any portion of said property until December 5, 1929; that it is true that after the defendant purchased the tangible assets of the People’s Gas Company it continued to manufacture and distribute gas through the main laid and installed by the People’s Gas Company including the gas main laid by that company in the year 1913 or 1914 in and across said property of which the 4.7 acres was and is a part; that defendant by its officers and agents, servants or employees did invade, intrude or enter upon any or all of said property of which the 12.86 acres was a part, and that said invasion, intrusion or entry continued from on or about October 1, 1927 until December 5, 1929 and that the defendant and its officers, agents, servants or employees did invade, intrude into or enter and trespass upon the property of which the 4.7 acres was and is a part in manner and form as plaintiff has above complained against it, etc. In the second replication it is alleged that said gas main was laid in and across said premises without the knowledge, acquiescence or approval of the then owner or owners thereof, and that at no time was said gas main either constructed or maintained upon said premises with the knowledge, acquiescence or approval of the owner or owners thereof; that said Myers and Hayward as trustees of William E. Hayward did not sell and convey said premises to Mary E. Dennon on April 17, 1915, or any other time and that neither said land nor any part thereof was ever conveyed to said Clara M. Hayward; that said gas main never remained as laid with the knowledge, acquiescence or approval of any person or persons who were at any time the owner or owners of the land and that plaintiff has at no time acquiesced in the maintenance of said gas main or approved of the maintenance or use thereof by defendant or any other person or corporation.

Plaintiff filed a general replication to the third plea, being that of the statute of limitations.

As to the three counts sounding in case the defendant filed a plea of the general issue.

This suit was instituted in the city court of the City of Pana. It is contended by appellant that a suit for trespass guare clausum fregit is a local action and must be prosecuted in the forum having jurisdiction where the lands are situated and that it is neither alleged in the declaration nor proven by the evidence that the lands in question are within the city limits of the City of Pana. The lands are described in the declaration by metes and bounds and also as being in the southwest quarter of section 15, Township 11 north, Range 1 east of the Third Principal Meridian in the county of Christian and State of Illinois. A city court has the same general jurisdiction as a circuit court though limited to causes of action arising within the limits of the city. A court will take judicial notice of the limits of a city, and, where the property is particularly described in the declaration and such description shows it to be within the limits of the city, it is not necessary to specifically allege such fact. The proofs included the deeds by which plaintiff received its title to the lands in controversy and as they contain the legal description thereof they are proof that said premises are located within the city limits of the City of Pana.

This case was not tried in the city court of Pana however, but in the circuit court of Shelby county pursuant to a stipulation between the parties, and the circuit court of Shelby county entered the following order:

“Now comes this day the parties to this cause by their respective attorneys, by agreement of the parties the venue of this cause having been changed from the Pana City Court to the Circuit Court of Shelby County, it is ordered that this cause be docketed for trial at this June Term of this court and the cause is so placed on the docket.”

It is contended by counsel for appellant that as trespass guare clausum fregit is purely a local action it must be brought in the county in which are located the lands involved, and that this rule is one of jurisdiction of the subject matter which cannot be waived by stipulation or otherwise and that the circuit court of Shelby county obtained no jurisdiction of the cause by the stipulation. In our opinion; however, the modern tendency of the law is to do away with such technical restrictions, and, in the absence of a mandatory statute to the contrary, to consider them as questions of venue or procedure and of personal privilege only which may be waived by agreement of the parties or by their acquiescence without objection. Under the common law a local cause of action was not necessarily to be tried in the county in which the land was situated, but, by consent of the parties, the trial might be had in any other county or place that was more convenient. (40 Cyc. 41b.)

“And, as part of this doctrine, it is held also that there may be an implied assent to this incipient jurisdiction, through defendant’s failure to object in the manner and within the time fixed by the statute. A similar view of the nature of local venue — that it is a personal privilege — has been reached in some states without this special aid. On general principles, and construing the statutes of venue as a whole, the courts have repeatedly held that enactments which fix the venue of a domestic cause in the county in which the subject of action is situated, although perhaps imperative in their terms, are neither jurisdictional nor mandatory, but give to the party, even when sued for real estate, the privilege of having the litigation con- ■ ducted in the county in which the land lies. The result is often in seeming conflict with the letter of the statute. Its ratio decidendi, however, is that statutes of venue regulate, not the jurisdiction of the courts, but only their procedure. As respects jurisdiction of the subject matter, the question is not whether a particular parcel of land lies within the territorial district assigned to the trial court, but whether this court is vested with the right to hear and determine the general subject involved in the action. If a court has the right to try title to land, the fact that the particular land in suit lies within another county of the state does indeed give defendant a right to object, but his objection is grounded in a personal privilege.” 40 Cyc. 41c.

The rule as announced in 25 R. C. L. 1102, sec. 10, is:

“The doctrine is recognized in many jurisdictions that the parties to an action in which the court has jurisdiction of the subject matter may make a valid and binding agreement or stipulation to fix the venue of the action in a particular county. There are also decisions to the effect that a stipulation for the removal of a cause from one county to another waives an objection that it was not brought in the proper county.”

It was held in People v. Fisher, 340 Ill. 250, that the constitutional provision for a jury trial of one accused of crime is not mandatory but merely confers upon the accused the right to a jury trial which privilege he may waive. The second clause, paragraph one of the Venue Act of this State (ch. 146, Cahill’s Ill. Rev. St. 1931) provides:

“Where either party shall fear that he will not receive a fair trial in the court in which the suit or proceeding is pending, because the inhabitants of the county are or the judge is prejudiced against him, or the adverse party has an undue influence over the minds of the inhabitants. In any such case the venue shall not be changed except upon application, as hereinafter provided, or by consent of the parties.”

Thus it will be seen that a change of venue may be. granted in either of one of two ways, by following the procedure thereinafter set out in the act or by consent of the parties to the suit. The rule of law that the action of trespass guare clausum fregit is local and must be tried in the county in which the land is situated confers upon the defendant to such an action the right and privilege to have the cause commenced and tried in such county, but only a privilege, which may be waived by the defendant by stipulation to have the venue changed to another county. (See also 27 R. C. L. 783, sec. 6.)

Counsel for appellant claim that no recovery can be had under the amended trespass count for the reason that trespass guare clausum fregit will not lie if the original entry was rightful and made in a lawful manner and that the original entry in this case was so made. This contention is based upon the following-facts. In 1911, one William E. Hayward owned the real estate in question. On the 28th day of December of that year he executed a deed of trust wherein he conveyed and assigned to Charles E. Myers and Clara M. Hayward, their heirs, successors and assigns, all his interest of every kind and description in and to any real estate wherever situated, etc., in trust with power to manage, care for, control, sell, mortgage or transfer the same during- his life and at the termination thereof to dispose of said property in accordance with the provisions set forth in the instrument. T. J. Vidler, a witness who testified on behalf of appellant, stated that he was president and general manager of the People’s Gras Company at Pana from 1911 to 1917; that he recalled the laying- of the gas main in question which according to his best recollection was in 1914. He stated that he wrote to Mrs. Hayward and asked permission to lay a main across a field to Hickory street but now has no copy of that letter and Mrs. Hayward has been dead for 10 or 12 years; that in said letter be explained to her that the main would be laid at least two or two and one-half feet below the surface of the ground and would not interfere in any way with the cultivation of the fields; that he received a reply from Mrs. Hayward but that said reply was destroyed; that he doesn’t remember the language she used therein but that she referred to the letter he had written to her and the substance of it was that she told him it would be all right to lay the main; that after receiving her letter the People’s Gras Company proceeded to lay the main across the Hayward field. On April 17, 1915, Myers and Clara M. Hayward as trustees conveyed said premises to Mary E. Dennon. On this same day and year Mary E. Dennon reconveyed by quitclaim deed the same to Clara M. Hayward. It will thus be seen that the title to the premises at the time the gas main was laid across them was in Meyers and Mrs. Hayward as cotrustees. It is a rule in the law of trusts that in the case of cotrustees the office is a joint one, and that where the administration of a trust is so vested all the trustees form but one collective trustee and therefore must execute the duties of the office in their joint capacity. If any co-trustee refuse or be incapable to join, it is not competent for the others to proceed without him, but the administration of the trust must in that case devolve upon the court. Warner v. Rogers, 255 Ill. App. 78, and cases cited therein. One of several trustees owning the title to real estate pursuant to the terms of a trust has no power alone to grant an easement in said lands either by parol or deed. In any event the lands involved in this case passed by several mesne conveyances before plaintiff acquired title thereto and any oral license or easement would cease upon the conveyance of the licensor or upon his death. Mrs. Hayward who it is claimed granted the license had been dead many years before plaintiff acquired title to the premises. The defendant company purchased the People’s Gras Company and all its rights and franchises in 1917. The evidence does not disclose that either the People’s Gas Company or the defendant company ever had any lawful right to lay its gas main across the premises in question unless it can be said that the manifest weight of the evidence showed that subsequently the plaintiff had knowledge of the existence of said main and acquiesced in the maintenance thereof. This last question is one of fact and the findings of the trial court must be given full credit on all questions' of fact unless they are against the manifest weight of the evidence. The trial court saw the witnesses and heard them testify and was in a better position to determine the credibility thereof than this court can possibly be. The evidence discloses that the officers of plaintiff company consisted of three brothers of which A. J. Matón is president, Paul Matón, vice president, and Arthur Matón, secretary. There is some evidence that this gas main was extended east in either 1926 or 1927 and that while the excavation was being made, these brothers saw the work being done and that one of them permitted the workmen to search for the main a few feet from plaintiff’s east property line. The evidence is conflicting as to when this work was done. Each of the brothers denies that he ever saw any extension work on this main or granted the permission claimed. Each of them testified that he never even knew of the existence of this main until the latter part of November, 1929. It was for the court to determine from the testimony on this point and from all the evidence in the case which witnesses were more worthy of credit. The manifest weight of the evidence does not show that the plaintiff company ever had any knowledge of the existence of the main across their property until after their plants began to deteriorate and die.

Counsel for appellant also maintain that as the gist of an action quare clausum fregit is the breaking and entering, by force and arms, of appellee’s close, the evidence will not support the amended trespass count because the entry was made in 1914 when appellee did not own the premises in question, and furthermore, that the ejection of gas upon the premises was not an act of trespass with force and arms, etc. The People’s Gas Company laid its main across these lands in 1914 without any lawful authority. When appellant purchased the plant from the People’s Gas Company in 1927 it acquired no more right in the maintenance of the main than the People’s Gas Company had. The maintenance of this main has been a continuing trespass notwithstanding that appellee had no knowledge thereof. The escape of gas therefrom was the result of the unlawful construction and maintenance of the main on the premises. The trespass need not be in person but may be by casting something on the land or projecting anything into, over, or upon the same. (38 Cyc. 996.) In Tobin v. French, 93 Ill. App. 18, it was held that the throwing of dirt, dust and lime by a landlord in.the course of making repairs to a portion of an apartment building was a trespass against the tenant of another portion of the building. The projection of any substance upon the lands of another without right is a trespass.

Under the negligence counts it is charged that it was the duty of appellant to use due care to keep its gas main in a condition calculated to prevent the gas therein contained from escaping and to make periodical inspections of its mains and the breach of these duties. The evidence shows that the original pipe laid across the premises had a diameter of two inches and was of ordinary black iron and had remained in the ground with no covering or protection, except the soil, for a period of 15 years, during which time appellant had made no inspection thereof. The evidence shows that when the pipe was uncovered gas yuls escaping in considerable quantity from a hole therein and sections of the pipe were introduced in evidence, have been certified to this court for our inspection and show that it was very much deteriorated by rust and corrosion and that it is a matter of common knowledge that an iron pipe buried in the ground for a long period of years will rust and corrode. In 12 R. C. L. 907, sec. 47, it is held: “A gas company not only must see that its pipes and fittings are of such material and workmanship and are laid in the ground with such skill and care that gas will not escape therefrom when new, but it must maintain such a system of inspection as will insure reasonable promptness in the detection of leaks that may occur from the deterioration of the material of the pipes, or from any other cause within the circumspection of men of ordinary skill in the business; and a failure to take such precaution is negligence.” In 28 C. J. 592, sec. 57, it is held: “The foregoing rule requires not only a careful laying of sound pipes, but also requires an efficient system of inspection, oversight, and superintendence. A gas company must use due and reasonable care in the inspection of its pipes, to insure reasonable promptness in the discovery of leaks that may occur from defects in or deterioration of pipes and valves, from careless or wrongful meddling with its works on the part of others, or from any other cause within the circumspection of men of ordinary skill in the business.” And in sec. 58, it is further stated: “If leaks or defects in the company’s pipes occur because of faulty construction or otherwise through the company’s fault, it is liable without notice for any resulting injury to person or property. The question of defendant’s liability in such a case is not dependent upon its knowledge of the pipe’s defective condition or the escaping gas, but upon the observance or neglect of care.”

The courts of this State have recognized the fact that illuminating gas, being lighter than air, has a tendency to rise and to seep through the soil following a line of least resistance. Baudler v. People’s Gas Light & Coke Co., 108 Ill. App. 187; Rockford Gas Light and Coke Co. v. Ernst, 68 Ill. App. 300. In the latter case it is held: “If injury is done to adjoining property by reason of defective material used in pipes employed to convey the gas along the streets of a city, because of the imperfect manner in which the pipes are laid, or because of failure to repair breaks, whether caused by its own fault or that of another, the injured property owner has a right of action to recover for all damage sustained by him. In case of a break, if it occurs through its own fault, the company is liable without notice. If it occurs through the fault of another, liability attaches as soon as the company has had notice and time to repair. If a reasonable inspection of the mains and pipes of a system would have discovered a leak, and such was not made, the company would be liable. If the damage occurs from a break which has existed for several days, and which could have been discovered by proper inspection, that is, of itself, evidence of negligence.” In the case of Aurora Gas Light Co. v. Bishop, 81 Ill. App. 493, gas escaped from a broken main through an abandoned sewer pipe into the home of the plaintiff. The employees of the gas company, in searching for the leak, lighted a torch to the escaping gas in the street, an explosion followed in the basement of the plaintiff’s building damaging the same and the defendant was held liable on the ground of negligence in not maintaining its pipe in a proper condition so that gas would not escape therefrom. There have been numerous cases where damages have been recovered for injuries done by gas escaping through the soil or sewers, among which are Butcher v. Providence Gas Co., 12 R. I. 149; Dow v. Winnipesaukee Gas & Electric Co., 69 N. H. 312; Grimes v. Minneapolis Gas Light Co., 133 Minn. 394.

It is strenuously insisted by counsel for appellant that there is no evidence that gas was ever present in the greenhouses of appellee or that there was any injury to appellee’s rose plants from gas prior to .December 4, 1929. The whole tract of land comprises 17.56 acres. There were seven different groups of greenhouses which were designated as ranges one to seven, inclusive. Range two lies immediately north of range 1. The gas main in question ran substantially east and west between ranges one and two. A tile drain ran north through range one, thence northeasterly through range two. From the main drain, lateral drains extended east and west in both ranges. The injuries to the plants were limited to the houses on ranges one and two and no plants were damaged except those contained in the houses on these two ranges, and the sewer in question did not extend to any of the ranges or houses therein where no damage was sustained. The sewer pipe crossed over the gas main at right angles and two or three inches above it and the hole in the main through which the gas escaped. The evidence further shows that the same varieties of roses which were grown in ranges one and two were grown in the other ranges which were unaffected; that all the roses were propagated under proper rules of cultivation and in the same manner, with the same soil, with the same temperatures and under the same supervision. The testimony does show that no gas was detected in the greenhouses by the sense of smell but it was further proven that the poisonous element in illuminating gas might be present in sufficient quantities to destroy roses or plant life without being susceptible of discovery by the sense of smell. During the process of deterioration the foliage on the plants began to curl and drop, some of the flowers became flat and ill-shaped, a few plants bloomed but the blossoms were brown around the edges and on others the buds fell off. A great many plants were killed and a great many produced no flowers at all. Expert rose growers of large experience, some of them being instructors in floriculture in universities and institutes, testified from examination of the plants that their .condition might have been caused by the ethylene, the active principle in illuminating gas, and some of them were positive that their condition was so caused. The fact that gas escaped from appellant’s main, that it would naturally follow the course of least resistance through the sewer pipe and enter the greenhouses, that it would naturally have a poisonous effect upon the plants in such greenhouses and produce the condition shown, the fact that there was evidence that there was no other discoverable cause for producing such condition and the further testimony of experts that the actual condition of the plants was caused by gas was sufficient proof to sustain the finding that the injuries to the plants were in fact .caused by the escape of gas from the defective main of the appellant company.

As to the defense of the statute of limitations, from what we have said herein, it will be recognized that under the facts in this case, this being a continuing trespass, that statute is inapplicable.

The question of the measure of damages in such a case as this is subject to much difficulty. From what we have been able to learn from the authorities submitted by counsel for both parties and from our own personal research, there has been no adjudication thereon applicable to the facts in this case. These rose plants were not attached to the soil but were propagated in greenhouses in benches or troughs raised above the soil, and were, therefore, personal property. In passing upon this question we have no rule of adjudication to guide us except the general one that in actions of this kind a plaintiff is entitled to all the damages which naturally follow from the commission of the tort. Neither party is satisfied with the method adopted in the assessment by the court. The appellee has filed cross errors claiming that the amount of damages as shown by the evidence should have been assessed at $311,098.15, while the appellant claims the damages assessed were erroneous because they claim the evidence discloses that appellee never produced the number of roses that the witnesses said would be a normal production; that they might have been injured by a great many other different things; and that the evidence shows there had been a steady decline in the production thereof when no gas injury was claimed. Both parties do agree, however, substantially on the average price of roses during the period of their deterioration and loss. An accountant for each side submitted a computation which, for all practical purposes are identical, the variations being within a one-hundredth of a cent. The court took the average normal production of roses for each variety in the different ranges and compared it with the production of such roses after they became affected with the gas and found that the loss of production in range 2 was 816,762 roses and the loss in range one amounted to 844,275. He applied the average market price as furnished him by the accountants of both parties and the total amounts to $79,029.86. In addition to this there was a loss of 156,700 grafted plants and the court found that the evidence showed that in grafted plants there is always a normal loss of 10 to 15 per cent, and an average of 12% per cent, and deducted this amount of loss. The evidence further disclosed that the manetti stock used in the grafting was used a second time and deducted $1,000 therefor, leaving the net loss of grafted plants at the sum of $10,290.30. We do not understand that there is any complaint against this item. The above amount added to the $79,029.86 makes up the judgment of $89,320.16. No absolute computation of damage of course can be made, but the contentions advanced by appellant that the finding of damages by the court was inaccurate and not in accordance with the true measure of damages for the reasons hereinabove stated do not appeal to us as having much merit. Nor are we impressed with the cross error of appellee that the damages should have been in fact $311,098.15. The principal item of this claim amounts to $153,487.97 for loss on the quality of roses sold which was disallowed by the court. The claim of appellee in this regard is that the sale of these roses had a tendency to reduce the price of all roses which it sold. An estimate upon such a loss could only be based largely upon conjecture and uncertainty. Appellee also claims that the court should have included damages to the amount of $51,800 for 56,000 plants which might have been affected to some extent by the gas, but which were removed from the range, on the ground that this variety were worth $1 per plant and were sold for 7%^ each. The proofs showed that these plants were 18 months old and were capable of producing normal quantities of marketable flowers if removed from the presence of the gas. The proofs further show that before the gas injury appellee had removed some 68,500 plants of this variety from their ranges and had appreciably reduced its stock of this particular variety. Whether they were sold on account of their depreciation by being exposed to the gas is not clear and we are not in a position to say that the court should have included any such amount in its assessment on the grounds urged. In regard to the other items which appellee claims should have been included as damages they consist mostly in disagreement with the trial court on his method of ascertaining the average number of plants which were injured or lost. The trial court went into the whole matter of damages with great care and thought and in our opinion his finding on that question, while possibly conservative, was on the whole just and supported by the evidence.

The record in this case consists of over 2,600 pages including a great many exhibits. These exhibits are indexed only by their numbers. Rule four of this court deals with the preparation of abstracts and among other things states: “The index must give not only the number of each exhibit and document in evidence, but must also describe it by its character, parties, date, etc. so as to distinguish it from every other exhibit or document in the record.” We have been put to much unnecessary labor and loss of time in searching the abstract and record for the exhibits. An index of this character is not only useless to a court of review but causes great inconvenience.

We find no reversible .error in the record and the judgment of the circuit court is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Earl Weakly, Appellee, v. C. C. Firebaugh, Appellant, and C. Walter Jones.
    Gen. No. 8,662.
    Opinion filed January 16, 1933.
    Bryan H. Tivnen, for appellant; Thomas R. Figenbaum and Carus S. Icenogle, of counsel.
    U. Gr. Ward, Robt. I. Pugh and Philip L. Turner, for appellee.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Earl Weakly, plaintiff in the court below and appellee here, brought an action of replevin against C. C. Firebaugh and C. Walter Jones to recover the possession of certain personal property and obtained a verdict and judgment not only for the possession of the property but also a money judgment in the sum of $325 under a count in trover. Firebaugh alone prosecutes this appeal.

Prior to October 15, 1930, the plaintiff, Weakly, had been operating a farm in Shelby county, part of which he owned and part of which he had leased from another party. On the above date Weakly ceased to personally operate the farm and took up his residence in the City of Shelbyville, leaving his live stock and farming implements upon the farm. Sometime in February, 1931, he entered into negotiations with the defendant Jones by which the latter was to move on the farm as a tenant. Jones moved onto the farm on March 1, 1931, bringing with him some live stock and equipment which he owned. Weakly testified that the original agreement was that Jones was to operate the farm under a “50-50” basis which was done for a few weeks. A new agreement was reached between the parties on or about March 28, 1931, when Jones offered to buy the personal property owned by Weakly then on the farm and to operate the farm on his own responsibility as a tenant. Weakly at this time was apparently operating a gasoline station in the City of Shelbyville and testified that his wife handled all the accounts pertaining to the farm for him. There were a number of cows on the farm and as Jones sold the milk from these cows Mrs. Weakly kept the accounts in regard thereto and paid Jones his portion of the receipts from the milk or cream so sold by him. This was while Jones was operating the farm upon the “50-50” plan. When the negotiations commenced between Jones and Weakly for the purchasing of the personal property of Weakly which was on the farm, Mrs. Weakly, with the approval of her husband, made out a list of such property together with the valuations thereof which were fixed by appellee showing the amount which Jones was to pay for the property. This list is as follows:

“Stock and Tools:

3 cultivators.............$ 25.00

Mower ................. 25.00

Corn Shelter ............ 2.00 C. Walter Jones

Wagon ................. 25.00

Gas Engine ............. 25.00 Earl Weakly

Harrow ................ 5.00

Plows .................. 30.00

Disc ................... 10.00

Planter ................ 75.00

Roller .................. 10.00

Oats seeder ............. 25.00

Harness ................ 25.00

Cows, 9................. 675.00

Horses, 3 ............... 200.00

Calves, 3 ............... 30.00

Sows, 3................. 150.00

Corn, 300 bu............. 180.00

Oats, 90 bu.............. 25.20

Hay, 6 ton @ $12.00 per.. 72.00

Seed Beans, 8 bu. @ $2.00 per .................. 16.00

$1630.20

Pasture rent............ 200.00

$1830.20

“1st half payable Sept. 1, 1931, 2nd half payable January 1, 1932.”

J ones agreed to purchase the property mentioned in the said list at the prices therein fixed by Weakly. Thereafter on April 14, 1931, Jones and Weakly went to a lawyer in Shelbyville for the purpose of having a lease drawn up and executed for the farm land. They went to the lawyer’s office.in the evening of that day. A written lease of the land was executed by Jones and Weakly. The subject of the purchase of the personal property was also discussed at that time. The total price of the personal property which had been agreed upon in accordance with the schedule heretofore mentioned was $1,630.20. The lawyer suggested that Jones give his note for this amount payable to the order of Weakly, due one' year after date with interest at seven per cent. This note was executed by Jones. It was then agreed that Jones should also execute a chattel mortgage on the property so purchased by him from Weakly to secure the note. The chattel mortgage was drawn up and signed by Jones. The chattel mortgage, however, was not acknowledged at that time because the justice of the peace before whom it had to be acknowledged was not obtainable on account of the lateness of the hour but it was tentatively agreed by the parties that Weakly and Jones would come to the office the following morning when Jones would acknowledge the chattel mortgage. The papers were left by the parties in the lawyer’s office at that time. Neither Jones nor Weakly appeared the following day nor at any other time and the chattel mortgage was never acknowledged by Jones, and the papers, including the lease, note and unacknowledged chattel mortgage remained in the office of the lawyer for a considerable length of time, though the note and lease were in some manner subsequently delivered to Weakly. The lawyer met Weakly several times and called his attention to the fact that the chattel mortgage had never been acknowledged nor recorded and advised him to have these things done, and on each occasion Weakly replied in substance that some day he would attend to the matter. Jones proceeded to operate the farm and the milk checks received for the sale of milk were turned over to Weakly as payments on the note and were so indorsed on the note by either Weakly or his wife. These indorsements were as follows: “March 31, 1931, milk checks 28.59; April 30, 1931, milk checks, 33.18, May 31, l'931, milk checks $32.16.” Thus it is evident that the parties considered that the sale of the property was effectuated at the time they made their oral agreement March 28, 1931, as Jones is given credit on the note for the milk checks turned over to Weakly on March 31, 1931. When the assessor went to Weakly to obtain his schedule of personal property for taxation, the latter told him that in regard to the personal property on the farm in the possession of Jones, “It is a little agreement between ourselves, kind of like 50-50.” Weakly thereupon filled out the tax schedule as the property of Jones and signed Jones’s name thereto. On June 29, 1931, Weakly had judgment entered against Jones on the note given by him in payment for the property and execution was issued on said judgment.

Appellant, Firebaugh, is president of the Commercial State Bank at Windsor, Illinois and it appears that Jones was indebted to said bank in the sum of $1,173.20. On May 27, 1931, Jones executed his promissory note for said amount payble to Firebaugh nine months after date with interest at seven per cent per annum and on the same day executed a chattel mortgage to secure the same which embraced the same chattel property in controversy. This chattel mortgage was acknowledged by Jones and recorded in the recorder’s office of Shelby county on the .same day. On June 24, 1931, Jones executed another note in the principal sum of $400 payable to the order of Firebaugh and on June 29, 1931, to secure said note he signed and acknowledged another chattel mortgage which embraced 16 head of Duroc hogs, an undivided one-half interest in 30 acres of growing corn, 20' acres of growing oats and an undivided three-fifths interest in 10 acres of growing soy beans, one Jersey heifer two and one-half months old and one Jersey heifer two weeks old. The property embraced in this mortgage was not included in the former mortgage to Firebaugh. The last mentioned note and mortgage it is claimed was given by Jones as an additional security or collateral security to the other debt. On September 7, 1931, Firebaugh foreclosed both of his chattel mortgages and at the foreclosure sale bid in the property. On September 25, 1931, Weakly brought this suit in replevin to recover said personal property from Firebaugh.

It is the theory of appellee that the contract for the sale of the personal property mentioned to Jones included the condition that Jones was to execute a chattel mortgage to secure the note evidencing the purchase price thereof, and that having failed to do so the contract was never completed and that the title to the personal property in question remained in himself. The first two instructions offered by appellee and given by the court in substance state that if the jury believe from the evidence that the contract of sale between Weakly and Jones provided that the latter was to secure the payment of the purchase price of the property by executing a chattel mortgage on the property sold and that Jones failed to complete his contract of purchase and did not execute and acknowledge the chattel mortgage on said property securing the purchase price thereof, then Jones would not have acquired title to said property under said contract of sale. A condition in any contract may be waived by the party thereto who is entitled to receive the benefit of the condition. There is evidence in the record tending to show that Weakly under the circumstances as shown did waive the condition that Jones was to secure and deliver a chattel mortgage to secure the note executed by him for the purchase price of the articles mentioned. Nowhere in the evidence does it appear that Jones refused to acknowledge the chattel mortgage. On the contrary, it shows that he was perfectly willing to do so and that the mortgage was not acknowledged was due to the negligence or indifference of Weakly. These instructions were erroneous in not embracing the question of waiver on the part of appellee.

The judgment is reversed and the cause remanded.

Reversed and remanded.


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    Billie Jean Franks, a Minor, by Louis Franks, his Father and Next Friend, Appellee, v. The Baltimore & Ohio Southwestern Railroad Company, Appellant.
    Gen. No. 8,683.

      Opinion filed January 16, 1933.

      Epler C. Mills and Graham & Graham, for appellant; William A. Eggers, of counsel.
    Barnabas F. Sears, for appellee.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Appellee recovered a judgment in an action on the case against appellant in the court below for $700.

The declaration consists of two counts, in the first of which it is charged that the plaintiff, a boy about four years old, was riding in a truck being driven by his father and, while in the exercise of due care, the defendant so negligently operated its engine and train of cars that it struck and injured the plaintiff. In the second count it is charged that on account of the close proximity of buildings to the tracks and of a large number of persons passing over it, the crossing was unusually dangerous; that in switching cars it was the duty of defendant to properly guard, watch and protect the crossing so the public would not be killed or injured, yet defendant allowed the crossing to remain unguarded, and negligently allowed freight cars to stand on the side track which obstructed the view of one approaching from the south, and while plaintiff, in the exercise of due care, rode in a northerly direction over said crossing, because of the negligence of defendant in failing to have a warning given by means of a flagman, gates, or signal device, plaintiff was not advised and did not know of the approaching train and defendant negligently struck the automobile in which plaintiff was riding. The accident happened on July 31, 1930 in the City of Virginia, Illinois. The tracks of appellant cross Main street at right angles and run in a southeasterly and northwesterly direction. The plaintiff, a child three years and three months old, was riding in a truck driven by his father going in a northerly direction on Main street and reached the crossing between 1 and 1:30 p. m. The day was clear and bright and there was nothing to obstruct the view of any train approaching the crossing from the west. The father of the child testified: < < There was a boulevard stop and I stopped and looked ahead to see if it was clear; there were two cars (automobiles) coming across south; when they started on across I started across; I lacked a little of getting across and the car hit me on the back end of the track and knocked me over; and threw the little boy out.” An engine of appellant was pushing several freight cars westwardly over the track at a speed of about four miles per hour when the end of the most westerly car struck the rear end of the truck. The evidence is very close arid conflicting* as to whether there was any negligence on the part of the railroad company. The evidence for the plaintiff tends to show that no bell was rung nor whistle blown, that there was no brakeman on the front end of the approaching freight car and that there was no one on the crossing to give warning of the approach of the train; while the evidence on behalf of appellant tends to show that there was a brakeman on the front end of the approaching train who called to the driver of the truck to warn him thereof; that the bell was constantly ringing on the engine, and that the conductor of the train stood on the crossing to give warning of its approach and waved his hands and attempted to call the attention of plaintiff’s father driving the truck. There were no obstructions to the view of the track and the approaching cars. If plaintiff’s father had glanced to the east he could not have failed to have seen the approaching railroad cars. Under these circumstances if this suit had been brought by the father he could not have recovered. Dee v. City of Peru, 343 Ill. 36; Greenwald v. Baltimore & O. R. Co., 332 Ill. 627; Graham v. Hagmann, 270 Ill. 252; Lake Shore & M. S. R. Co. v. Hart, 87 Ill. 529; Chicago, B. & Q. R. Co. v. Damerell, 81 Ill. 450; Toledo, W. & W. Ry. Co. v. Jones, 76 Ill. 311.

It is the settled law of this State, however, that in a suit by a child who is merely injured, to recover damages, the contributory negligence of the father will not defeat the action brought by the child as his negligence cannot be imputed to it. Ohnesorge v. Chicago City Ry. Co., 259 Ill. 424; Chicago City Ry. Co. v. Tuohy, 196 Ill. 410; Richardson v. Nelson, 221 Ill. 254; Perryman v. Chicago City Ry. Co., 242 Ill. 269; Chicago City Ry. Co. v. Wilcox, 138 Ill. 370.

The evidence is so close and conflicting as to whether the appellant was guilty of any negligence that if any errors were committed which might have operated to the prejudice of appellant the judgment must be reversed and the cause remanded. The court permitted appellee, over objection, to attempt to prove within what distance this train could have been stopped at the rate of speed at which it was going. It has been repeatedly held that where a railroad train and a person traveling on the highway are each approaching a crossing at the same time, it is not the duty of the servants of the railroad to stop the train, but, in keeping with the custom of the country, it is the duty of the traveler on the highway to stop and not attempt to pass in front of the advancing train. Newell v. Cleveland, C., C. & St. L. Ry. Co., 261 Ill. 505, 511; Chicago, B. & Q. R. Co. v. Damerell, supra; Toledo, W. & W. Ry. Co. v. Jones, supra; Williams v. Pennsylvania R. Co., 235 Ill. App. 49. Evidence was admitted that the conductor of the train told the witness Hare several days after the accident that he, the conductor, said if anyone asked if he was flagging the crossing to say that he was. This conversation, if any there was, occurred at a time too remote to make it a part of the res gestae. Chicago Union Traction Co. v. Daly, 129 Ill. App. 519. The court also permitted to be introduced oral testimony of the rules of the company in regard to operating its trains. This was error. St. Louis, A. & T. H. R. Co. v. Bauer, 156 Ill. 106. While this testimony was subsequently stricken out by the court, under the circumstances in this case such action will not cure the error. Counsel for plaintiff asked a witness the following question: “Q. Now, Mr. Stamp, if you had not been on the west end of that train in the manner in which you have testified at the time and place in question, you would be subject to reprimand by the company for which you are employed?” An objection was sustained to this question but the question propounded was improper and had but one tendency and that was to prejudice the jury against the appellant.

It is also urged that the damages are excessive. While there is nothing in the evidence to show that the injuries were permanent or even serious as no bones were broken or other physical injuries except some scratches on the head and bruises on the leg from which at times the plaintiff limps a little according to the testimony ■ of his mother, there is some evidence tending to show that at times the plaintiff is nervous and cannot sleep well as a result of the shock and we cannot say that under all the circumstances the judgment is excessive. There are other errors complained of which it is not necessary to discuss as they - will probably not appear on another trial. For the errors mentioned the judgment is reversed and the cause remanded.

Reversed and remanded.


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    Margaret C. Hanon, Appellee, v. Kansas City Life Insurance Company, Appellant.
    Gen. No. 8,686.

      Opinion filed January 16, 1933.
    Hogan & Coale and Jos. E. Stewart, for appellant; Frank W. McAllister, of counsel.

      Provine & Williams and Hershey & Vogelsang, for appellee.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Margaret C. Hanon, appellee, recovered a judgment of $5,297.22 against Kansas City Life Insurance Company, appellant, as the beneficiary of a life insurance policy issued upon the life of her husband, John E. Hanon.

Mrs. Hanon owned a farm in Christian county and resided thereon with her husband up to the time of his death. The policy sued on was issued June 18, 1926, and the amount thereof is $5,000. Among the provisions in the policy is the following: “After one full annual premium has been paid and before default in the payment of any subsequent premium, if the insured shall furnish satisfactory proof of total permanent disability caused by bodily injuries or disease and will be continuously and wholly prevented thereby, for life, from pursuing any and all gainful occupation, and if such proof of disability is received by the Company prior to the insured having; attained the age of sixty years, the Company by an indorsement in writing upon this policy, will agree to pay for the insured the premiums, if any, which shall thereafter become payable during the continuance of such total disability. In any such case the premium so paid shall not be a lien on this policy or charge against the insured, and the cash loans and values of this policy in the table on the second page hereof shall increase in the same amounts as if the premiums were being paid by the insured.

“The Company may from time to time require of the insured due proof of the continuance of total disability, and upon failure to furnish such proof, or if it appears that the insured has engaged or become able to engage in any occupation whatever for remuneration or profit, no further premiums shall be paid by the Company.”

Upon an inquest held in the county court of Christian county, John Hanon was found to be insane on December 22, 1927, and was sent to the State Hospital for the Insane at Jacksonville, Illinois, where he remained for about six months when he was discharged on parole and returned to his home on the farm where he died January 20, 1931. Appellant filed a plea of general issue with notice of the special defense that the policy had lapsed for the nonpayment of premiums before the death of John Hanon. Two questions of mixed law and fact are presented for determination : (1) Was there such a total permanent disability caused by bodily disease that continuously and wholly prevented him for life from pursuing any and all gainful occupations; (2) whether proof of such disability was received by the company?

Dr. W. W. Eichelberger was in charge of the receiving service of the State Hospital at Jacksonville when Hanon was admitted and testified that he was suffering from dementia praecox of,the paranoid type; that this is a mental condition that particularly leads to mental delusions — thinks people are talking about them, that their work is being interfered with, that they are being spied upon, that their wives are untrue to them and that they become homicidal; that Hanon’s idea was that his mother and his wife were always’ interfering with his work, his neighbors spied upon him and interfered with his work, and his violent temper became extraordinarily combative and destructive; that a person thus afflicted is considered to be of the most dangerous of insanity cases because he so frequently becomes homicidal; that it is not curable and is progressive ; such people lose all idea of judgment so far as everyday life is concerned; Hanon was disabled by his mental condition to such an extent that his delusions incapacitated Mm from applying himself as he should to his everyday work; his ability as to continuous effort would he very poor; he was paroled because the superintendent thought it was safe to let him out; the superintendent is now dead; he was paroled to give him a trial at home to see if his condition would remain satisfactory at home.

Dr. W. A. Monaghan testified that he was Hanon’s family physician and saw him frequently; his symptoms were retardation, slow thought, and very definite delusions of persecution, homicidal tendencies, destroyed furniture, not hardly a human being, had sort of tantrums sometimes inflicting very serious injuries on members of his family for which he afterwards treated them; he had dementia praecox of the paranoid type; it is one of the most serious cases of insanity and considered incurable and becomes progressively worse; he had very little capacity for continued and sustained effort; the symptoms were there practically all the time; afte.r his return from the hospital his symptoms were considerably accented, condition became worse; he was in my opinion not a single time without these delusions; they were always present.

Dr. E. E. Burton testified that he was assistant manager of the Jacksonville State Hospital but did not go there until after Hanon was discharged; from the fact stated in the hypothetical question he was afflicted with dementia praecox, paranoid type, the progress of which is toward mental delirium all the time and is not curable; delusions would prevent such a person from pursuing the active life of a farmer and performing work in an intelligent manner and would be a dangerous man to deal with; there is no treatment, only supervision; when confined to the institution the treatment is occupational, therapeutic, which would be an aid if you could keep them at regular work; the trouble is you cannot keep them at it, cannot keep them occupied because their minds are full of delusions.

Boy Tackett, a farmer and assistant supervisor of the township in which Hanon resided, knew the latter in his lifetime 10 or 12 years; lived part of the time less than a quarter of a mile east of him; frequently saw him; talked with him two or three times a week; noticed he had an unusual and abnormal condition and a difference in personality most any time you met him; talked pretty well at times, then drifted off to something else, changed to another subject with a kind of silly laugh; had a glassy stare in his eyes; told me his neighbors were working against him, and that they would go over and break tile in his fields causing water to stand thereupon and poison his cattle; this occurred nearly every time he talked to him; he never did anything on the farm line intelligently; at harvest time he would draw his binder through the field when water and mud were up to the axle, then unhitch from the binder and go to the house; he claimed that plowing corn once was better than three or four times and did not plow his corn regularly more than once and sometimes in parts he did not plow at all; saw him go out to plow his garden with a big tractor; he changed teams three or four times a day at different employment; he used a three-bottom plow with one board running six or seven inches deep and the other just simply turning the dirt; saw him-unhook from a tractor plow and hook up to a gang plow with four horses; he drilled wheat when part of the drills and flutes would not be running and the crops would be a failure; he started to cut oats with a binder when it was muddy and dragged the binder along the field for half a mile or more, left it on the far side of the field and drove back through the oats with the tractor; he would fire up his steam engine, run it around back and forth tooting the whistle sometimes for half a day in corn planting time; did not raise over half a crop 'on the land because of the way he farmed it; these instances occurred more than once; in my opinion he was insane and not capable of carrying on successful farm operations during the period of time after he came back from the insane asylum until he died; his mental delusion was somebody was trying to persecute him with particular reference to his wife’s family and his brother-in-law.

. Clarence Calloway, another farmer living on land adjoining Hanon’s, testified that he would see him-nearly every day and talk with him and that he complained that his neighbors were stealing his tools, digging holes down in his tile and tearing up his machinery ; he cut oats when it was too wet and the water was standing in the fields; he drove the tractor clear across the meadow cutting ditches clear along the field ; saw him drilling wheat with the holes stopped up; plowed his corn twice and sometimes only once, said he thought he could raise good corn without plowing it; fact was he. did not raise much corn and on the average did not raise more than half as much as the rest of us did; bought a threshing machine for $280 but never got it fixed so he could see it and would fire up the engine and run it around the lot and toot the whistle; he would laugh at you silly and would shut you off before you got half way through and start talking about something else; one day we were threshing at Beemer’s and left about four o’clock; when we got to his house he cussed his neighbors and called them names, his eyes bugged out like tea cups; in my opinion he was insane and was not capable of carrying on a farm.

"Charles McMillan, another farmer, who worked for Hanon in 1929, was employed to plow corn and help thresh and lived at the place; he testified that Hanon would sit down to the table, give a big laugh and look wild; never heard a person who was sane laugh like he did; was flighty in his conversation, first one thing and then another; he plowed every other row and I asked him why he did that and he said he wanted to get it over with, didn’t do any good to plow anyway; said the neighbors seemed to have it in for him and that they stole his tools; that he laughed part of the time and cursed part of the time; can’t say I ever saw him do a full day’s work; talked to him about the way he plowed his corn and he said he was going to let the corn goto hell; think he was insane and not competent to operate a farm.

Another neighbor, Frank Lamb, living within 40 rods of Hanon and seeing him every day, testified to similar facts.

Mrs. Kate Hanon, the mother of John Hanon, testified that he came to visit her on a number of occasions and would come to the back door and talk with her; on one occasion he asked her where he was born and when she told him that he was born in Christian county, he took hold of her and shook her until she thought he was going to kill her and if it had not been for her daughter, Margaret, he would have done so; he thought people were against him and asked her whether she was against him; thought she was against him, thought his wife was against him, thought his neighbors were against him; told her the people around there had poisoned his hogs; said they wanted to run him out of the country; every time he came to town to visit her he had these delusions; he would get to laughing and act like he did not know what he was doing; never was able to carry on a connected conversation with him; he was getting worse all the time; he would hit his wife ; she knew he was insane; he was killed by being shot by Joe O’Hara.

Hanon was shot by O’Hara, his brother-in-law, to prevent him from killing his wife, the appellee.

It is undisputed that Hanon, after his parole from the State Hospital, did some work about the farm in the manner described by the witnesses. There is also evidence that he exchanged work with a number of his neighbors at different times. There is further evidence that at intervals he and his wife borrowed money from the bank, also that he hauled some of his grain to an elevator and sold it but claimed that the grain dealer cheated him. He also at times paid his farm hand his wages. It must be remembered that appellee owned the farm and so far as we can ascertain from the evidence as abstracted, she always signed the notes with him when any money was borrowed from the bank, and the credit exténded by the bank was undoubtedly to her and not to him. That he was insane and violently so cannot be, and is not, disputed and there is no evidence to the contrary, but it is claimed by appellant that his condition was not such as to constitute a total permanent disability which wholly prevented him from pursuing any and all gainful occupations within the terms of the policy because he did in fact do some work and transact some business. The judgment of the county court finding him to be insane has never been vacated and his natural condition as a person sui juris had never been restored. The presumption is that after a person has been adjudicated to be insane, the insanity continues, and the burden is upon anyone who asserts the contrary to prove it. This court in the case of Missouri State Life Ins. Co. v. Copas, 265 Ill. App. 478, in construing substantially the same language contained in an insurance policy, held that it did not mean that appellee must be 100' per cent deficient before he is totally and permanently disabled. In order to carry on any kind of business there must be an ability to make contracts. Ho contract can be enforced against an insane person. The term “total disability” as used in insurance contracts has been construed in many cases and has been defined in various ways by different courts, but the great weight of authority, in our opinion, sustains our conclusions as announced in Missouri State Life Ins. Co. v. Copas, supra. We will not attempt to refer in detail to the holdings in these cases as it would extend this opinion to an undue length, but simply refer to them as follows: Metropolitan Life Ins. Co. v. Blue, 222 Ala. 665, 133 So. 707; Kurth v. Continental Life Ins. Co., 211 Iowa 736, 234 N. W. 201; Nelson v. Great Northern Life Ins. Co., 253 Mich. 351; Pacific Mut. Life Ins. Co. v. McCrary, 161 Tenn. 389; United States Casualty Co. v. Perryman, 203 Ala. 212; Clark v. Travelers’ Ins. Co., 94 Vt. 383; Jacobs v. Loyal Protective Ins. Co., 97 Vt. 516; Standard Accident Ins. Co. of Detroit v. Bittle, 36 F. (2d) 152; Aetna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S. W. (2d) 310; Fidelity & Casualty Co. of New York v. Getzendanner, 93 Tex. 487; Sherman v. Continental Casualty Co., 103 Cal. App. 518, 284 Pac. 946; Metropolitan Life Ins. Co. v. Lambert, 157 Miss. 759; Mid-Continent Life Ins. Co. v. Hubbard (Tex. Civ. App.), 32 S. W. (2d) 701; Fidelity & Casualty Co. v. Joiner (Tex. Civ. App.), 178 S. W. 806; Lobdill v. Laboring Men’s Mut. Aid Ass’n, 69 Minn. 14; Continental Casualty Co. v. Wynne, 36 Okla. 325; Great Eastern Casualty Co. v. Robins, 111 Ark. 607; Mutual Benefit Ass’n v. Nancarrow, 18 Colo. App. 274; James v. United States Casualty Co., 113 Mo. App. 622; Hohn v. Interstate Casualty Co., 115 Mich. 79; United States Casualty Co. v. Hanson, 20 Colo. App. 393; Turner v. Fidelity & Casualty Co., 112 Mich. 425; Thayer v. Standard Life & Accident Ins. Co., 68 N. H. 577.

Our conclusion is that John Hanon was, during his period of insanity, of total permanent disability caused by disease and was continuously and wholly prevented thereby for life from pursuing any and all gainful occupations under the proofs as established by the evidence in this case.

The second question of law and fact as to whether satisfactory proof of the disability was furnished to appellant remains to be considered. It is contended by appellant that the obligation of appellant rests not upon the disability of the insured but upon the receipt of the company of proof of the disability and that there was no such proof. There has been much diversity of opinion not only in the State courts but in the federal courts in the circuit courts of appeals as to the proper construction of disability waiver clauses in insurance policies of the general character as that appearing in the policy involved in the case at bar. In the case of Peoria Life Ins. Co. v. Bergholm, 50 F. (2d) 67, the circuit court of appeals, in construing the provision of a policy similar to the one appearing in this case,, held that such a. provision could not be enforced unless proof of disability was made and that the liability of the insurance company rested not upon the fact of the disability of the insured but upon proof thereof having been made to the company. In the case of Minnesota Mut. Life Ins. Co. v. Marshall, 29 F. (2d) 977, the policy provided that if the insured, while the policy was in full force and effect, and without default in the payment of the premiums “shall become totally and permanently disabled, as hereinafter provided, and shall furnish satisfactory proof thereof, the Company will waive the payment of premiums thereafter becoming due, etc.,” and the court held that the obligation of the insurance company rested upon the fact of disability and not upon the furnishing of the proofs thereof. In the Bergholm case the Supreme Court of the United States granted a certiorari because of a supposed conflict of the law held in that case with that held in the Marshall case. In the opinion of the United States Supreme Court (Bergholm v. Peoria Life Ins. Co., 284 U. S. 489), it was held there was no conflict in the opinions rendered by the circuit court of appeals in the Marshall and Bergholm cases, stating in regard thereto: ‘ ‘ The petitioners nevertheless, contend that this is enough to bring into effect the promise of the company to pay the premiums which became due after the disability began. In support of this contention, Minnesota Mut. Life Ins. Co. v. Marshall, supra, is cited. The pertinent provisions of the policy there, however, differ from those found in the policy here under consideration. There the policy that if the insured, while the policy is in force and before default in payment of premiums, ‘shall become totally and permanently disabled . . . and shall furnish satisfactory proof thereof, the Company will waive the payment of premiums thereafter becoming due/ and that ‘upon the receipt of due proof of total and permanent disabilities . . . the Company will waive the payment of all premiums thereafter becoming due. ’ The court held that the waiver took effect at the time of the disability, and did not depend upon the time when proof thereof was furnished.

“We do not need to controvert this construction of the words quoted, or question the soundness of the view of the court that the existence of the disability before the premium become in arrears, standing alone, was enough to create the waiver. In that view, the obligation to furnish proof was no part of the condition precedent to the waiver; but such proof might be furnished within a reasonable time thereafter. Here the obligation of the company does not rest upon the existence of the disability; but it is the receipt by the company of proof of the disability which is definitely made a condition precedent to an assumption by it of payment of the premiums becoming due after the receipt of such proof. The provision to that effect is wholly free from the ambiguity which the court thought existed in the Marshall policy.” The provision in the policy mentioned in the Bergholm case is substantially the same as in the case at bar and the obligation to furnish proof was a condition precedent to the waiver. This being true, it is necessary to determine whether such proofs of disability were made or whether there was a waiver by the company thereof. It is contended by appellant that no satisfactory proof of such disability was furnished. S. B. Bentley was the general agent of appellant at Taylorville. Appellee was placed upon the stand as a witness and testified that while her husband was in the ‘State Hospital at Jacksonville she called upon Bentley at Taylor-ville to inform him of the fact that her husband was insane and confined in the State Hospital at Jacksonville and that she informed him of that fact. She was then asked this question: “Q. I wish you would state what was said by you and what was said by Mr. Bentley in the several conversations about this matter?” To the above question appellant objected, which objection was sustained. Thereupon counsel for appellee made the following offer of proof: “We intend to show by this witness, that Mrs. Hanon went to the office of Mr. Bentley at Taylorville, Illinois, for the purpose of informing him that her husband was confined at the Jacksonville State Hospital for the Insane, at Jacksonville, Illinois. That she did in several conversations inform him of that fact; that Mr. Bentley told her that he would communicate with the Company in regard to this matter and let her know what was needed; that in substance he told her that he had not yet heard from the Company, and to call again, and when she did call again he told her that he would handle the matter for her and she need not worry any more about it. It referred to the disability of her husband and the proof. We submitted that proof to the Company. ’ ’

The court sustained an objection to the offer. We think the court erred in holding that appellee was an incompetent witness to establish the facts mentioned in the offer. When she testified, her husband was dead. Her testimony did not pertain to any communication or conversations with her husband or between him and third persons. The conversation with the agent was not in regard to any knowledge which she had obtained by reason of her marital relations. The insanity of her husband-was a matter of public record and that fact could have been proven by a large number of people. She went to the agent of appellant for the purpose of making the proof of her husband’s insanity which she had a right to do regardless of her marital relations. If appellant’s agent told her that he would look after the matter for her in accordance with the offer' of proof, then she had done everything that was necessary to be done by her in order to make the proofs of her husband’s condition. In the case of Mahlstedt v. Ideal Lighting Co., 271 Ill. 154, it was held that a wife may testify, after the death of her husband, to facts coming to her knowledge from other sources and not by means of her situation as a wife, notwithstanding they related to the transactions of her husband, and numerous cases are commented on in that opinion. In the case of Ingle v. Maloney, 234 Ill. App. 151, it was held that a wife after the death of her husband could testify as to the facts of an automobile accident as she saw it while riding in the automobile which her husband was driving and which resulted in an injury to the plaintiff. In Supreme Lodge Mystic Workers v. Jones, 113 Ill. App. 241, it was held that a wife is not precluded from testifying to facts which came to her knowledge by means equally accessible to any person not standing in the relation of husband. In Conner v. Conner, 145 Ill. App. 608, it was held that a wife was not incompetent to testify to transactions occurring during the marriage except where the husband or wife are called to testify as witnesses for or against each other. In Carlson v. Johnson, 184 Ill. App. 17, a wife was held competent to testify to transactions relating to an insurance certificate, such as the delivery of the certificate to her by her husband, the keeping of the certificate, the payment of dues and assessments by her, and the disappearance of the certificate while she was absent from home.

There is no rule under the common law nor any statuté of this State which would make appellee incompetent to testify to her transactions with appellant’s agent embraced in the offer of proof. Moreover, there was no other person in position to make such proof and request the abatement of the premiums. The proof offered having been excluded upon the objection of appellant, it cannot now complain of the lack thereof. Hahl v. Brooks, 213 Ill. 134; Owen v. Crumbaugh, 228 Ill. 380; Nebergall v. Prudential Ins. Co., 193 Ill. App. 189; Hepler v. People, 226 Ill. 275; Erickson v. Svete, 200 Ill. App. 151; Follett v. Illinois Cent. R. Co., 200 Ill. App. 289; Dandurand v. Hydrox Co., 222 Ill. App. 267.

The result of this conversation between appellee and Bentley led to the following correspondence between Bentley and appellant:

“J. B. Reynolds, President,

Kansas City Life Insurance Company

The S. B. Bentley, Agency, Central Illinois.

Taylorville, Ill., Jan. 19, 1928.

Kansas City Life Ins. Co. Kansas City, Mo.

Dear Sirs:

I have just been informed that Mr. John E. Hanon Insured under Policy No. 346225 was adjudged insane at the last term of court and if that is total disability under the meaning of his policy I presume he is entitled to the exercise of the total disability under his policy. Please let me hear what the Company’s attitude on a case of this character is.

Very truly yours,

S. B. Bentley.

(The Kansas Life Insurance Co.

Received Jan. 21, 1928) ”

“January 24, 1928

Mr. S. B. Bentley, Taylorville, Illinois

Dear Sir. Re: Policy No. 346225 — John E. Hanon.

We have your letter of January 19th advising us that the. above named insured has been adjudged insane.

In case the beneficiary desires to make claim for payment of the premium by the company under the disability clause of the above policy, kindly hand her the enclosed blanks upon which to submit evidence of disability. The wife may execute ‘Insured’s statement, ’ from him and sign her own name. We would also like to have a copy of the order adjudging Mr. Hanon insane.

Tours very truly,

Secretary’s Office.

P. S. The next premium will not be due until June 18, 1928.”

“J. B. Reynolds, President,

Kansas City Life Insurance Company

The S. B. Bentley, Agency,

Central Illinois,

Taylorville, Ill. May 30, 1931

Mr. C. N. Sears, Kansas City, Mo.

Dear Mr. Sears:

Enclosed find letter just received from Mr. Harold Williams of the law firm of Provine and Williams attorneys for Mrs. John Hanon widow of Mr. John E. Hanon.

Mr. John E. Hanon was insured in the Company under policy number 346225 and had carried this policy for quite a while previous to his death.

There are some circumstances in connection with Mr. Hanon’s death and his interest in this policy that may encourage a lawyer to feel he could make a case of it in court.

Mr. Hanon was adjudged insane in 1928 and January 11, 1928 I wrote to you for blanks on which Mrs. Hanon could file proof of disability under that clause of his policy. There was no premium due under his policy until June of that year and before time for this to fall due Mr. Hanon had been released from the asylum and no claim was ever filed. When Mr. Hanon was released from the asylum he returned and lived with his family. His condition was not entirely normal it seems and he had frequent and violent quarrels with his wife threatening to kill her. His death was caused by being shot at the hands of his brother-in-law who was released on the grounds he did the act in defense of his sister and to save her life. I imagine plenty of witnesses could be secured to prove the above. On the other side however he transacted his business and secured the cash from this policy and no question of his legal right to do so was ever raised. I hope you will review this case and furnish Mr. Williams with the information he wishes as I am sure he is not desirous of bringing any legal action if there are no reasonable grounds on which to base a suit.

Very truly yours,

S. B. Bentley. ’ ’

These letters strongly tend to sustain the truth of the facts offered to be proven.

Appellant denied any liability under the policy on the sole ground that the policy had lapsed at the time of the death of the insured. This made it unnecessary to furnish any proofs of death.

What we have said in the above opinion disposes of most of the criticisms made to the action of the court in the giving and refusing of instructions and we find no reversible error in regard thereto.

. The judgment of the circuit court is affirmed.

Affirmed.