text:
    Clarence McDaniels, Appellee, v. Terminal Railroad Association of St. Louis, Appellant.

      Opinion filed November 8, 1939.
    Kramer, Campbell, Costello & Wiechert, of East St. Louis, for appellant.
    C. A. Geers and Mark D. Eagleton, both of St. Louis, for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court.

The appellee, Clarence McDaniels (hereinafter called plaintiff), recovered judgment in the circuit court of Madison county in the sum of $20,000, from which judgment appellant, Terminal Railroad Association of St. Louis (hereinafter called defendant) appeals to this court.

Plaintiff’s action was based upon personal injuries sustained by plaintiff on February 28, 1936 as the result of his being struck and injured by a large wooden girder which was thrown or dropped from, defendant’s overhead bridge by employees of the defendant. Plaintiff testified that, at that time, he was walking along a cinder path on the east side of the tracks of the Wabash Bailroad on the Wabash Bailroad right of way, over which the bridge of the defendant was maintained pursuant to contract between the defendant company and the Wabash Bailroad Company.

Plaintiff’s complaint charged that plaintiff was walking along a certain cinder path or roadway on the east side of the Wabash Bailroad Company track, which was much used by employees of “other railroad companies, and by pedestrians and vehicles of the general public, and that said use of said cinder path or roadway was well known to Defendant and its Agents. ’ ’ It was alleged in such complaint that the defendant maintained a railroad bridge, or viaduct, extending over and above the Wabash tracks and over and above the cinder path or roadway, near the city of Venice. It was further alleged that while the plaintiff was in the exercise of due care and caution, in walking in a southerly direction along the cinder path or roadway, and had reached a point on the cinder path under or near the defendant’s overhead viaduct or bridge, that defendant’s agents carelessly and negligently caused a large wooden girder to fall or be thrown from the viaduct, causing serious and permanent injuries to plaintiff. In another count the complaint charges the defendant and its agents with wantonly and willfully causing the wooden girder to be thrown from the viaduct and so causing plaintiff’s injuries.

Defendant, in its answer, in addition to denial of the allegations of plaintiff’s complaint, pleaded that, on May 14, 1936, plaintiff and defendant settled all controversies existing between them by the payment of $50 in cash, and the payment of certain hospital bills of plaintiff, and that plaintiff signed a release of his claim in consideration thereof. In his reply, after denying the allegations of defendant’s answer and reaffirming the allegations of the complaint, plaintiff, in substance, alleged facts tending to show that the execution of the release was obtained by fraud. A further plea by defendant, and a reply to such plea by plaintiff, asserted, on part of plaintiff, and denied, on behalf of defendant, that the release was obtained through fraud.

Witnesses who testified on behalf of plaintiff established, as do the photographs in evidence in the case, that there was a well-worn pathway along the easterly side of the Wabash tracks, that passed under the viaduct or bridge which was maintained by the defendant. Such witnesses further testified that such pathway had been there for many years, and had been in daily use by members of the public for as many as 20 years. Specific reference was made to the fact that school children regularly used the pathway, which, if followed, constituted a ‘ ‘ short-cut ’ ’ between certain populous centers, and also between residences which were ” near the viaduct of defendant. One of the two employees of the defendant company, who was called as a witness by plaintiff (and who had participated in throwing or dropping the girder which struck plaintiff), testified that he had worked on the bridge of the defendant for nearly a year and that he knew of the walkway east of the Wabash tracks, and that he had seen many people walking up and down there before the day upon which the plaintiff suffered his injuries.

The evidence shows that the plaintiff was a man 57 years of age, who had been employed as a machinist in various communities, but who was unemployed at the time of the accident on February 28,1936, and had been unemployed since the previous September. The evidence further shows that on the day upon which he was injured the plaintiff had come in from Springfield on an Illinois Central freight train and got off at Madison, Illinois; that he walked around the streets of Madison, and then down the railroad tracks, and that before he turned into the pathway, he was walking along the railroad tracks of the Wabash Railroad.

It was further shown that plaintiff was walking along the cinder path just before he was struck, and had walked under the viaduct and was about six feet east of the Wabash Railroad track when he was struck by the heavy timber which was thrown off the viaduct by the defendant’s employees. It was also shown by the evidence that just prior to that time, two of defendant’s employees who had worked for defendant company for a number of years and who were, at the time, engaged in making repairs on defendant’s bridge, had taken out a guard rail on the bridge which measured 6 inches by 8 inches, and was 18 feet long. Such guard rail was shown to have weighed about 250 pounds. The two employees of defendant then lifted such guard rail, which was taken about 200 feet from the east end of the bridge, and walked along the bridge nearly 200 feet to a point immediately above the pathway along which the plaintiff was walking, apparently looking through cracks in the flooring to see if anyone was underneath the bridge. Defendant’s employees testified that they rested the heavy timber on the bridge railing preparatory to pushing it off, and that they looked down on the south side of the bridge and shouted, “Look out,” or, “Look out below.” They were not sure whether they shouted once or twice, but they both testified and admitted that they did not look to the north, from which direction plaintiff was coming, and that they did not see plaintiff. The guard rail was pushed or thrown off the viaduct by the employees of the defendant company and struck the plaintiff. Plaintiff testified that he was thereby rendered unconscious, and that when he regained consciousness he was in a hospital, to which he was taken pursuant to a call made by defendant’s employees. Plaintiff was very severely injured as the result of being struck by the timber and suffered considerable pain. The doctors who testified, indicated that plaintiff suffered a fractured spine, and other injuries which are permanent in character, with the result that plaintiff will be required to wear a brace the remainder of his life, and will never again be able to do manual labor.

On behalf of defendant, the defendant’s claim agent testified that he had gone to the hospital on May 13, 1936, after having been advised of defendant’s condition from reports received from the hospital, including the information that plaintiff had suffered a fractured spine. He did not communicate such information to plaintiff, and plaintiff at the time did not know he had a fractured spine. The claim agent testified that he made an arrangement with plaintiff by the terms of which plaintiff was to execute the release, which was introduced in evidence, in consideration of the payment to him of $50 and of the payment of hospital bills incurred as the result of his injuries. He stated that he told plaintiff there was no liability to him because he was a trespasser, but that if plaintiff wanted some railroad fare he would pay him some. He returned the next day with the releases, which he testified plaintiff examined for a sufficient length of time to permit him to read the same, and then signed such releases (taken in triplicate), after which plaintiff was handed $50 in cash by defendant’s claim agent. In this connection, on his behalf, plaintiff testified that, he did not send for the defendant’s claim agent; that the claim agent advised him that the hospital bill must be paid and that plaintiff would be required to sign it; that the claim agent advised him that he would bring the papers relating to the hospital bill with him the next day and asked the plaintiff if he needed a little spending money, which plaintiff agreed to accept. Plaintiff testified that the defendant’s claim agent returned on the following day with the papers in his hand, and that the papers were clamped together with a hospital form on top; that he was told to sign on the next sheet, and on the other two sheets, which were indicated to him by the defendant’s claim agent, none of which were turned up far enough for him to read them. Plaintiff testified that the hospital form was over the top sheet, and that he did not know and was not told that he was signing a release of his claim against the defendant company. He, likewise, testified that he did not read the releases; that he was in considerable pain; and that he did not have his glasses available at the time. The doctor at the hospital, and a nurse who was in attendance, and who acted as witnesses, testified that they saw the plaintiff sign the documents, which the claim agent read to him, and which he apparently read, and observed the defendant’s claim agent give the $50 in cash to the plaintiff. The nurse likewise testified that defendant’s claim agent explained to plaintiff what the release was about. She also acted as a witness on the document. Plaintiff maintained, in rebuttal (in addition to a denial that he read the releases, or that the releases were read to him), that nothing was said with reference to settling his lawsuit, but that he was asked whether he could use a little spending money, to which he replied in the affirmative, and that he accepted the $50 with that understanding. He stated that all arrangements had been made by the claim agent as to the hospital bill and the spending money the previous day, and on this day he was told and understood that he was simply completing such transaction, and did not understand that he was signing a release. He used the $50 and never paid it back to the defendant company, nor did he reimburse the defendant company for the amount of the hospital bill, $595.95, which had been paid by the defendant to the hospital on his behalf.

On trial before a jury a verdict was returned in favor of plaintiff in the sum of $20,000, upon which verdict judgment was entered. Defendant company filed motions for directed verdict at the close of plaintiff’s evidence and at the close of defendant’s evidence, as to each count, and likewise filed a motion for new trial, all of which motions were denied by the court. The judgment was entered on February 14, 1939, and 18 days after the rendition of the judgment, on March 4, 1939, defendant filed its notice of appeal to this court in the office of the circuit clerk of Madison county. Plaintiff’s counsel were not served with notice of appeal until March 7, 1939, which was 21 days after the rendition of the judgment. As a result of the fact that such notice of appeal was served on attorneys for plaintiff 21 days after the entry of judgment, plaintiff appellee filed a motion in this court to dismiss the appeal, to assess damages in favor of appellee, or, in the alternative, to strike the cause from the docket on the ground that such failure to serve plaintiff appellee, or his attorneys, with notice of appeal within 20 days after the rendition of the judgment constitutes a violation of Rule 11 of this court, and of section 82 of the Civil Practice Act [Ill. Rev. Stat. 1937, ch. 110, § 206; Jones Ill. Stats. Ann. 104.082] of this State. Said motion has been taken with the case for consideration.

The position of the appellee in this connection, succinctly stated, is that if notice of appeal is filed in the office of the clerk of the trial court within 20 days after the rendition of the judgment it is also mandatory that service of such notice of appeal be had upon opposing counsel within such 20-day period, and that a failure to effect such service within such 20-day period authorizes a dismissal of the appeal. We believe that such contention arises from a misapprehension of the rules of this court, and of the Civil Practice Act of this State.

Under section 76 of the Civil Practice Act (Ill. Rev. Stat. 1937, sec. 200 [Jones Ill. Stats. Ann. 104.076]) it is provided that an appeal may be taken within 90 days after the rendition of judgment, without leave of court. The appeal in the instant case was taken within 18 days after the entry of judgment. There are additional provisions in such section which relate to super sedeas. Bule 34 of the Supreme Court provides that a copy of the notice, by which the appeal is perfected, shall be served upon other parties, or counsel, within 10 days after the notice of appeal is filed in the lower court. Such rule further provides that where the appeal is taken as of right, such service is to be made within 90 days from the entry of the judgment. In the instant case (the notice of appeal having been filed within 18 days after the entry of judgment), the copy of notice of appeal was served on plaintiff’s appellee’s counsel 21 days after the rendition of judgment, and 3 days after notice of appeal was filed in the circuit court.

The contention of counsel for plaintiff appellee to the effect that Bule 11 of this court (which is similar to Buie 37 of the Supreme Court) and section 82 of the Practice Act so limit an appellant that if he files notice of appeal within the 20 days he must likewise serve appellee, or his counsel, within such period, strikes us as being wholly untenable. A construction of such character would be tantamount to construing the provisions relating to appeal as necessarily providing that no notice of appeal in which a supersedeas is not sought should be filed within 20 days after the entry of judgment, but only after the expiration of 20 days and prior to the expiration of the 90-day period set forth in the Practice Act. The provisions of section 82 of the Practice Act, and of Bule 11 of this court, and Buie 37 of the Supreme Court, relate to the question of obtaining a supersedeas. Neither the rules nor the section of the Practice Act in any manner operate to limit the general provisions of the act as to the time within which an appeal may be taken as a matter of right.

In the instant case the motion of the plaintiff appellee is not directed to any relief relating to the question of whether or not the appeal here involved operated as a supersedeas. The only relief requested is dismissal of the appeal, or relief incident thereto. It is, therefore, unnecessary for us to pass on the question as to whether or not the service of notice of appeal after the expiration of the 20-day period prevented such notice of appeal from acting as a supersedeas. If that question were raised in some fashion in this court, an entirely different problem would have confronted us. It should be readily apparent, however, that there is no basis for dismissal of the appeal in the instant case by virtue of the service of notice of appeal after the 20-day period. It is our view that there has been a compliance with the rules of the court relating to appeal in this case, and we do not believe that any interpretation is either accurate or desirable, which would seek to rigidly require that an appeal once instituted within the 20-day period following the entry of judgment, must be completed, to be effective in any respect, in accordance with the specific provisions which relate to supersedeas. Those provisions manifestly govern the question of supersedeas alone. The fundamental question as to when notice of appeal and copies of notice of appeal must be filed and served, where supersedeas is not obtained, is controlled by provisions to which we have referred in this opinion. Such provisions have obviously been complied with and we must, therefore, deny the motion of plaintiff appellee to dismiss the appeal and for other relief as hereinabove stated, and proceed to a determination of this case upon the merits.

Defendant appellant relies for reversal in this cause upon a number of errors which were assigned, but which roughly fell into the following classifications:

(First) Defendant denies that it is liable to the plaintiff for the reason: (a) That the plaintiff was a trespasser, or, at most, a bare licensee, and that there is no evidence to show that the defendant was guilty of wilfulness or wantonness as charged in one of the counts of the complaint; (b) And that even if defendant owed the plaintiff a duty to exercise ordinary care, that there was not sufficient evidence to establish negligence on the part of defendant and that plaintiff, as a matter of law, was guilty of contributory negligence.

(Secondly) Defendant contends that, as a matter of law, plaintiff is fully bound by the release executed by him on May 14, 1936, which by its terms purportedly releases plaintiff’s cause of action.

(Thirdly) It is contended that the trial court erred in giving certain instructions on behalf of the plaintiff, and in refusing certain instructions offered by defendant; and,

(Lastly) It is contended that the judgment of $20,000 is excessive and is the product of erroneous instructions and passion and prejudice. Such errors relied upon by defendant are interrelated with the motions made on behalf of the defendant during the course of the trial, and other general assignments of error, but all alleged errors which were argued in this court in the brief of appellant, may be disposed of upon consideration of points'hereinabove outlined.

On the question of liability, defendant maintains that plaintiff was a trespasser to whom the defendant owed no duty other than not to wilfully or wantonly injure him. The railroad and trespasser cases referred to by defendant in this connection in the opinion of this court are not applicable under the facts and circumstances shown by the record. The evidence produced on behalf of the plaintiff demonstrated very clearly that plaintiff, at the time he was struck by the timber dropped by defendant’s employees, was walking along a well-worn pathway which had been used by the public for a number of years, and that such public use was known to the employees of the defendant. Under such circumstances the defendant company cannot contend that it did not owe a duty to plaintiff other than not to injure him in a wilful or wanton manner. It has been clearly indicated by the Supreme Court of this State that, even as relates to a track of a railroad company (where some courts have emphasized that public interest in cheap, safe, and rapid transit should be weighed in considering the rights of trespassers or licensees on the tracks), where the railroad company has permitted the public to travel over its track for a considerable period of time and a considerable number of people have availed themselves of such use, the railroad company must keep a lookout for persons on its track (Bernier v. Illinois Cent. R. Co., 296 Ill. 464, 471).

It has, likewise, been established that where a railroad runs through populous portions of a city where people frequently go upon or pass over a track with the knowledge of the railroad company, or for such a length of time that the railroad company is chargeable with knowledge, it is required to keep a lookout for persons under such circumstances and is chargeable with negligence by reason of its failure so to do (Joy v. Chicago, B. & Q. R. Co., 263 Ill. 465, 468).

In the instant case the plaintiff was not on any track, but was on a well-worn and much traveled pathway along the Wabash Railroad right of way, over which the defendant company maintained its viaduct pursuant to contract. The defendant company, as shown by the testimony of its employee, knew of the fact that such pathway was used by the general public, and under all such circumstances defendant company owed a duty to the plaintiff to watch out for him and for members of the public who might be using such pathway, before throwing objects on to such pathway. If, as the evidence tended to show, defendant company failed to keep a proper lookout for plaintiff, notably in the failure of its employees to look to the north, the negligent acts of defendant, through its employees, in failing to keep a proper lookout, coupled with evidence of negligence of the employees in dropping the timber on the pathway where persons might be walking, may furnish the proper basis for a recovery on part of plaintiff, and the issue of such negligence was properly submitted to the jury.

The substantial evidence of “contributory negligence” in the instant case, urged by defendant, arises from the fact that the defendant’s employees shouted, “Look out below,” which shouts, plaintiff testified, he did not hear. Under the facts thus presented the question of contributory negligence was one which was peculiarly for the jury, and this court cannot say, under such facts, that the conclusion of the jury that no contributory negligence was shown in this connection was contrary to the manifest weight of the evidence. It cannot, therefore, be said that plaintiff was guilty of contributory negligence as a matter of law.

As a matter of fact, this court feels that the evidence which shows that a heavy 250-pound timber was thrown from the viaduct onto a pathway, which defendant’s employees knew was used by members of the general public, is indicative of wilful and wanton conduct which would justify a recovery on behalf of the plaintiff even if he were considered a trespasser. Ill will is not a necessary element of a wanton act, but where the act complained of which causes the injury indicates a reckless disregard of the life or property of others, it is not essential that actual knowledge of the presence of specific persons or property is shown in fixing liability. It is only the knowledge of the probability of the presence of persons who might be injured, which becomes pertinent to characterize the act (Bremer v. Lake Erie & W. R. Co., 234 Ill. App. 105, aff’d 318 Ill. 11). In the instant case the conduct of defendant’s employees in casting the heavy timber from the bridge onto the pathway used by members of the public under circumstances which impress this court as being evidence of a reckless disregard of human life and safety, justifies a judgment based on wilful and wanton conduct on the part of the defendant. We are not, however, required to so conclude under the view which we take of this case, that defendant owed a duty to plaintiff, which, in the state of the evidence before it, the jury was justified in concluding was violated through the negligence of defendant’s servants, and that, therefore, plaintiff is entitled to recover by virtue of such negligent breach of duty.

It is next contended by the defendant that the release, which was sighed in triplicate by plaintiff, is binding on plaintiff in this action. In connection with such release it is pointed out that the only defense available to the plaintiff is evidence which tends to show that there was fraud in the execution (Turner v. Manufacturers’ Consumers’ Coal Co., 254 Ill.187,193), and that the sufficiency of the release is governed by the law of Missouri where such release was executed (Woodbury v. United States Casualty Co., 284 Ill. 227, 235, 236).

In defendant’s contention that the release was binding on plaintiff under the facts, particular emphasis is placed upon the case of Poe v. Illinois Cent. R. Co., 339 Mo. 1025, 99 S. W. (2d) 82, in which case the court emphasized that courts will not protect those who, with full opportunity to do so, will not protect themselves. There was no showing in that case, however, that any effort was made to cover up the release which, was taken (as plaintiff testified was done in the instant case), and the court in that case was apparently impressed by the fact that the person signing the release had every opportunity to ascertain what he was doing, and that his story that he thought he was signing a receipt for wages, when there was shown to be no legal obligation to pay wages to him, did not seem consistent with the action of the parties signing and taking the release. In the instant case the plaintiff stated that the understanding between himself and the claim agent had been concluded the day before, and that specific fraudulent representations had been made on that day; that all that remained to be done when the claim agent returned with his documents, which plaintiff understood to relate only to the hospital bill, was for plaintiff to sign. Under the circumstances the story of plaintiff appears credible in view of the facts in the record and of the direct admissions of the claim agent that he advised plaintiff that defendant was not liable to plaintiff because he was a trespasser and that he would pay him a little money for railroad fare. While others were present at the time of the signing of the release, the only persons present at the time of the conversation the previous day were plaintiff and defendant’s claim agent, whose stories of the transaction are contradictory in vital details. Under the circumstances,' being denied a view of the witnesses and their apparent candor, this court cannot say that the conclusion of the jury that there was fraud in obtaining the execution of the releases was against the weight of the evidence, and this court will not substitute its judgment for that of the jury and the court below in this connection.

There is nothing in the Missouri case cited by defendant, nor in the cases referred to in such case, which is inconsistent with this conclusion. Neither the Missouri nor the Illinois courts hold that where misrepresentations in prior conferences have established in the mind of the person who is to sign the document, an understanding that it is not a release, the fact that a release is later executed under circumstances where the person signing such release, by bold action, might have determined that it was a release, does not justify the conclusion that such release is binding “willynilly” and irrespective of preliminary fraudulent representations to obtain its execution. Under such circumstances the question of fraud in the execution, where the evidence is of the character as was presented in the instant case, is for the jury to determine under all the facts and circumstances.

Defendant likewise contends, in connection with the alleged release, that there was a duty on part of the plaintiff to tender back the $50 received by him before he was entitled to maintain his action. This contention is not sustained by the decisions in this State, but it has been expressly held that where fraud enters into the execution of a contract in a case of this character, a return of the consideration received in the fraudulent attempt to obtain the release, need not be made as a condition precedent to the commencing of the action (Chicago, R. I. & P. Ry. Co. v. Lewis, 109 Ill. 120). Defendant likewise contends that plaintiff is barred from alleging any fraud because of the fact that the action was not instituted until 11 months after the release was signed. The case of Kanter v. Ksander, 344 Ill. 408, 415, is cited as a precedent for such conclusion. In that case, which we do not believe to be applicable under the facts however, the emphasis is placed on promptness on the part of a plaintiff in taking action after the fraud is discovered. We take it, from an examination of the pleadings and the record in this cause, that the fraud was not discovered until after the defendant’s plea setting up the release was filed by the defendant. There can, therefore, be no complaint of delay in the assertion of the fraudulent character of such release on part of plaintiff.

Defendant next complains that the court erred in the giving of the two instructions offered by plaintiff, and in refusing three instructions which were refused after being tendered by defendant. No authorities are cited in support of defendant’s contentions in connection with instructions.

The first instruction to which objection is made is the plaintiff’s instruction which was given on the question of damages, which was in form as follows:

“The Court instructs the jury that if under all of the other instructions of the Court and evidence in the case, you find the issues in favor of the plaintiff, then you will assess plaintiff’s damages at a sum of money which you find and believe from the evidence will fairly and reasonably compensate him for the injuries sustained by him as a direct result of the occasion mentioned in evidence as occurring on February 28, 1936, as charged in the complaint, and in arriving at your verdict you may take into consideration:

“First, the extent of his said injuries so sustained, and those directly caused thereby;

“Second, the pain of body and anguish of mind, if any, that you find and believe from the evidence plaintiff has suffered and endured as a result of his said injuries so sustained, if any, and directly caused thereby;

“Third, the pain of body and anguish of mind, if any, that you find and believe from the evidence plaintiff is reasonably certain to suffer and endure in the future as a result of his said injuries so sustained, if any, and directly caused thereby;

“Fourth, the probable duration of plaintiff’s said injuries, if any, and the extent, if any, to which you find and believe from the evidence same are permanent;

“Fifth, the extent, if any, that you find and believe from the evidence that plaintiff has been disabled and rendered physically unfit to pursue any gainful occupation of which he was capable prior to receiving his said injuries, if any.” Defendant objects to the use of the word “endured” and that in its form the instruction tends to pyramid various elements of damage so as to create passion and prejudice in the minds of the jury, and also, to the statement of the “fifth” element of damages. The use of the word “endured” rather than the word “suffer” which is customarily used in instructions of such character, cannot, in the opinion of this court, have tended to mislead the jury, nor does this court feel that the instruction as a whole in specifying any details of damage, or in its form, was erroneous under the facts and circumstances in the record.

Another instruction objected to on behalf of defendant contained a recital which in effect left the question, as to whether or not plaintiff executed a release of claim, to the jury. The defendant contends that, since the undisputed evidence showed that the plaintiff signed the releases, there was no question on this point to submit to the jury, and that the instruction was further objectionable in that it left to the jury to determine whether plaintiff understood or realized that he was executing a release of his claim. Defendant contends that the question really was whether plaintiff was in a position to understand and realize whether or not he was executing a release of his claim. In answer to this contention it is asserted by plaintiff that where the signature to an instrument is secured by fraud, the instrument never in fact exists (Chicago, R. I. & P. Ry. Co. v. Lewis, supra), and that it was, therefore, not improper to employ the language used in the instruction in connection with the signature to the releases. This court is of the opinion that the jury could not have been mislead by the instruction, as a whole, in view of other instructions given and of the evidence in the record.

Defendant’s contention that the court erred in failing to give two instructions relating to the use of care on part of plaintiff to ascertain the nature of the document which was submitted to him, and as to his duty in that connection, does not constitute error principally because of the fact that other instructions tendered by defendant on the same points were given by the court and the jury was properly instructed as to such matters in such other instructions.

The third instruction which was offered by defendant purported to tell the jury that where there is negative testimony as to a certain proposition, and afterward, positive testimony is introduced on that proposition, then the negative testimony loses its probative value. Such instruction was properly refused. While negative testimony may not be of as much weight as positive testimony, the weight and credibility of both are for the determination of the jury (Noonan v. Maus, 197 Ill. App. 103).

Defendant finally contends that the verdict in this case is excessive and the product of prejudice and passion on the part of the jury.

The evidence showed that plaintiff was, before his injury, an able-bodied man who had followed the occupation of machinist in construction work for a period of 40 years, and had earned his living, even though he suffered periods of unemployment, until the time of his injuries, since which time he has been unable to work. All the medical evidence submitted showed definitely that plaintiff suffered serious and permanent injuries; that he has a compressed fracture of the spine which has converted him into a “humpback,” and that his condition is such that he must wear a brace or plaster cast the remainder of his life; that he will, therefore, never be able to work at manual labor again — the only kind of work plaintiff had ever pursued. Under the circumstances, this court does not feel that it is justified in substituting its judgment for that of the jury, and will not interfere with the verdict in this case.

There being no reversible error in the record, the judgment of the circuit court of Madison county is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Culbertson

license: Public Domain

text:
    F. Buckmaster et al. Trading as Effingham Clinic, Appellants, v. County of Effingham, Appellee, and Town of Mason, Coappellant.
    Opinion filed November 8, 1939.
    Parker, Bauer & Parker, of Effingham, for appellants.
    Paul Taylor, of Effingham, for coappellant.
    Lester Wright, of Effingham, for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court.

Plaintiff appellants, a group of physicians (hereinafter called plaintiffs) sued the county of Effingham (hereinafter called the county) and the town of Mason (hereinafter called the town) for the value of medical and surgical services which were rendered to various persons, residents of the town and county, who were not financially able to pay therefor. The complaint alleges that the services were rendered at the direction of and authorized by the township supervisor and exofficio overseer of the poor of said town. The complaint consists of six counts varying only as to the names of the patient and parent and amounts due. The plaintiffs bring this suit in the alternative against both the county of Effingham and the town of Mason under what is commonly known as the Pauper Act (Ill. Rev. Stat. 1937, ch. 107, § 1 et seq.; [Jones Ill. Stats. Ann. 98.01 et seq.]). The first count of the complaint alleges that on August 30, 1937, one Irene Buchholz was a minor child of John Buchholz and both were residents, of the town of Mason, Effingham county; that the said Irene Buchholz then and there fell violently and dangerously sick and ill, and as a result thereof it was necessary that she have immediate medical attention and that an emergency existed as to the physical condition of said patient; that the township supervisor of the town of Mason caused her to be brought to a hospital in the city of Effingham in said county and that services were rendered by plaintiffs at the request of the township supervisor, which services were of a reasonable value of $64; that the action is instituted under section 24 and section 15 of the Pauper Act hereinabove referred to. It is expressly alleged that neither the said Irene Buchholz nor her father had previously been on township or county relief and that neither the patient nor her father had any money or property with which to pay for such attention and services; that the father was a day laborer and was able to provide for his family and children, in health, with the necessities of life. In their material allegations, the other counts are identical with the first count.

The city of Effingham and town of Mason each filed separate motions to strike said complaint upon the ground that the complaint showed no cause of action against each of said defendants. Upon hearing, the trial court overruled the motion on the part of defendant town of Mason, and sustained the motion of the county of Effingham, on the theory that public relief or assistance to lawful residents must in all cases be given by the township under the provisions of section 15 of the Pauper Act, and that section 24 does not apply to such “lawful residents” as are involved in the proceedings here before the court.

Plaintiffs elected to stand by their complaint and judgment was entered in favor of defendant county of Effingham and against plaintiffs in bar of the action and for costs. Plaintiffs have appealed from this decision and judgment of the trial court, and the defendant town of Mason has joined therein as coappellant. The issue upon which all the parties seek the judgment of this court is stated by appellants as follows: “1. Appellee contends that in all cases, irrespective of the circumstances or emergency that may exist, the expense of medical aid given persons not able to pay therefor, and who are residents of the Township, must be borne by the Township (if any public authority is liable) under Sec. 15.1. This view was sustained by the trial Court.

“2. Appellants and Co-Appellant contend that one who may be a poor person, but who has not received public aid, and is ordinarily self-supporting, but who in an emergency, arising from sudden severe illness, accident, etc., requires immediate medical attention, for which he cannot pay, is not necessarily either a ‘pauper,’ or a ‘poor and indigent person;’ but that he may be a ‘person not coming within the definition of a pauper’ under Sec. 24, who, if he shall fall sick, not having money or property to pay for his medical aid, is entitled to said aid at the expense of the County.”

The issue raised, therefore, is whether or not, under the state of facts set forth in the complaint, the county of Effingham shall be liable for the expense involved in the giving of medical attention to a resident of the town and county under the provisions of section 24 of the Pauper Act. The sections involved in this proceeding provide as follows [Ill. Rev. Stat. 1937, ch. 107, §§ 15.1, 25; Jones Ill. Stats. Ann. 98.15, 98.27]:

“Section 24. When any non-resident, or any person not coining within the definition of a pauper, of any city, village or incorporated town having a population of more than 500,000 inhabitants, county or town, shall fall sick or die, not having money or property to pay his board, nursing and medical aid or burial expenses, the overseer or overseers of the poor of the city, village or incorporated town, town or precinct in which he may be shall give, or cause to be given to him, such assistance as they may deem necessary and proper, or cause him to be conveyed to his home, and if he shall die, cause him to be decently buried; and the county shall pay the reasonable expense thereof, which expenses of board, nursing, medical aid and burial expenses, may be recovered from the relatives of the said pauper, or from the county of which he is a resident, in an appropriate action.

“Section 15. In counties under township organization-(including any such counties in which the county affairs are managed by a Board of Commissioners) the various towns other than those towns lying entirely within the corporate limits of any city, village or incorporated town having a population of more than 500,000 inhabitants shall relieve and support all poor and indigent persons lawfully resident within their respective territories except as herein otherwise provided and except that no such town shall be required to relieve and support poor and indigent persons lawfully resident therein who are also lawful residents of any city, village or incorporated town having a population of more than 500,000 inhabitants and located within or partly within such town. ’ ’

In Cloyd v. County of Vermilion, 360 Ill. 610, the court was considering a complaint which closely paralleled the complaint involved in the instant case. In that case the complaint alleged that the boy and his parents resided in the town of Butler and that they had not previously been receiving township or county relief, but that they were unable to pay for the medical and surgical services. The court in confirming the judgment against the county for the value of medical and surgical services, after sustaining section 24 of the Pauper Act as constitutional, stated (at p. 614): “Webster’s International Dictionary defines a pauper as a very poor person; a person destitute of means except such as are derived from charity; one who receives aid from public poor funds. Those mentioned in section 24 who are unable to pay for nursing, medical expenses or their burial expenses if they die are certainly included in the commonly understood meaning of the word ‘pauper,’ even though they may not be paupers in the technical, legal definition of the word. In such emergency they must receive aid from the public poor funds or from charity.”

The court in disposing of the contention that the county was not liable also stated that section 24, as contrasted with section 15, deals explicitly with emergency cases arising among those persons not technically paupers, but who are nevertheless unable to pay the necessary expense incident to their illness or death. The court says (at p. 615): “as has been pointed out, the legislature has by express language designated such a person as a pauper, and it has also definitely placed the burden of such cases upon the county.” Many cases have similarly concluded that the county may be liable under such facts or under similar circumstances (Reason v. County of Williamson, 188 Ill. App. 316; County of Clinton v. Pace, 59 Ill. App. 576; Scobey v. Town of Manteno, 56 Ill. App. 336; City of Chester v. County of Randolph, 112 Ill. App. 510; City of Spring Valley v. County of Bureau, 115 Ill. App. 545).

It is contended by the county that section 24 has been upon the statute books in substantially its present form both when the burden of relief was on the townships and when it was on the counties, and it is suggested that with section 15 in force it cannot be held that section 24 creates an exception to section 15. In the same connection, it is sought to distinguish the case of Cloyd v. County of Vermilion, supra, on the ground that the court sustained the constitutionality of section 24, but concluded that the persons mentioned therein are paupers and that the section is contradictory in that in express terms it does not apply to persons coming within the definition of “paupers.” To round out the contention of the county in the same connection, it is stated that nothing in section 15 makes any distinction between paupers who become such by degrees or by a sudden calamity.

We are unable to agree with the contentions advanced on behalf of the county. If, as is implied from the contentions of the county, section 24 constitutes one of the vestigial remains of a legislative pattern which was devised at a time when the counties sustained the relief burden, then the problem of amputation or excision of such provision is one for the legislature and not for the courts. The function of the .courts is to construe and not to enact legislation. Nor can we sanction atrophy or nullification of legislative enactments under the guise of judicial interpretation in violation of express language of legislative enactments. Section 24 clearly establishes an obligation upon the county to pay for the medical and surgical expenses of those persons who are not technically paupers, but who are nevertheless unable to pay the. necessary expenses of their illness. In the instant case it was expressly alleged in the complaint that the father was able to provide the necessities of life for his family and children in health. Under the express provision of section 24, as consistently interpreted in the case of Cloyd v. County of Vermilion, supra, the burden of such expenses is imposed on the county.

We accordingly conclude that the action of the circuit court of Effingham county was erroneous in sustaining the motion of the county of Effingham to strike the complaint of the plaintiffs. This cause will, therefore, he reversed and remanded to the circuit court of Effingham county with directions to proceed in accordance with the views set forth in this opinion.

Reversed and remanded.


author: Mr. Justice Dady

text:
    In re Belleville Bank and Trust Company, Testamentary Trustee under Last Will and Testament of Anna S. White, Deceased. Federal Deposit Insurance Corporation, Appellant, v. Charles O. White et al., Appellees.

      Opinion filed November 8, 1939.
    Chester H. Farthing, of Belleville, for appellant.
    Farmer, Klingel & Baltz, of Belleville, for appellees.
   Mr. Justice Dady

delivered the opinion of the court.

On May 2, 1938, the appellant, Federal Deposit Insurance Company, a corporation, herein called the “petitioner,” filed its petition and motion in this suit before the circuit court of St. Clair county asking for leave to intervene as a party and praying that a certain order of April 2, 1938, be set aside. The appellees filed a motion to strike the petition, supported by their affidavit, and the court entered an order on November 23, 1938, striking the petition of the petitioner, from which order this appeal is taken.

The record in this case shows that the Belleville Bank & Trust Company, herein called the “trust company,” was appointed trustee of a trust under the will of Anna S. White, deceased. The trust company’s appointment as trustee was confirmed in this suit on October 2,1936. The trust company accepted the trust and acted as trustee. On March 16, 1938, the trust company was placed in the hands of a receiver by the auditor of public accounts because of insolvency.

On April 2, 1938, Charles 0. White, one of the beneficiaries under the trust and a party to this suit, filed a petition herein suggesting the receivership of the trust company, and praying that a successor trustee for the trust be appointed. Thereupon, on that day, the court entered an order appointing the First National Bank of Belleville as successor trustee. Thereafter, on the same day, the trust company filed its report as trustee under the trust. This report, after stating an account of the trust management, alleged that the beneficiaries claimed a mismanagement of the trust on the ground that the trust company contrary to the instructions of one of the beneficiaries failed to sell certain securities, which securities thereafter depreciated in value; that the liability of the trust company was close and doubtful but as a compromise settlement the sum of $3,000 was offered to the beneficiaries for a release of any claim for mismanagement of the trust, and the report concluded with a prayer that upon filing proper receipts and upon the payment of the $3,000 that the trust company be discharged and released as trustee.

A hearing was had on the report before the court on the same day it was filed. The parties to this hearing were the trust company and all of the beneficiaries, including two minors for whom a guardian ad litem was appointed. After the hearing and on the same day, the court entered its order, which is the same order sought to be set aside by the petitioner. By this order the court in substance approved the report, found the offer of $3,000 for the settlement of the trust company’s liability fair and equitable, ordered the payment thereof to the successor trustee, and provided that upon the delivery to the successor of the assets of the trust and the filing of proper receipts the report would be approved and the trust company discharged.

After the entry of the final decree and hearing on the merits of the report of the trust company as above mentioned, the petitioner, on May 2, 1938, filed its petition for leave to intervene and to have the order of April 2, 1938, set aside. This petition in substance stated two grounds upon which the petitioner claimed the right to intervene, first, that the court did not have jurisdiction of the subject matter and of the parties for the purpose of entering the order on April 2,1938, approving and settling the trust company’s account as trustee for the reason that the receiver for the trust company was not made a party thereto, and, secondly, that since the order of April 2, 1938, the petitioner arranged in behalf of the trust company a sale of its good assets to the First National Bank of Belleville and loaned to the trust company the sum of $1,349,-558.07, which loan was secured by an assignment to the petitioner of certain assets of the trust company not sold to the First National Bank of Belleville, and that after April 2,1938, the petitioner maintained a deposit of $110,000 in the First National Bank of Belleville as a guarantee contingent upon any losses of the trust company, including any losses which it might maintain on account of the handling of any and all trust accounts including the trust estate in question, and that under such arrangement the $3,000 settlement in this trust would be payable by the petitioner. The petition further alleged that it did not approve of the compromise made on April 2,1938, by the trust company, that petitioner is a party in interest, and that certain commissions due the trust company for services rendered for the trust in question now belongs to the petitioner, and the petition concluded with the prayer that the petitioner be allowed to intervene, that the order of April 2,1938, be set aside, that the account of the trust company be restated, and that a hearing be had on the reasonable fees for services rendered by the trust company for the trust estate.

The appellees, being the beneficiaries under the trust estate, the trust company as trustee, and the successor trustee, moved to strike the foregoing petition, which motion to strike was allowed by the court on November 23,1938.

It is clear from the facts shown that the petitioner seeks to intervene in a proceeding in which it was not an original party. The only question is, did the court abuse its discretion in denying the petitioner that right? The petitioner’s rights, if any, must be determined by the record as presented and from the allegations contained in its petitioti,

The right to intervene in a proceeding is not absolute, but the permission of the court must be secured. The party seeking to intervene must have a clear interest in the subject matter involved, and it must appear that a full and complete determination cannot be had in the case without such party being made a party. The intervenor takes the suit as he finds it; he is bound by the record of the case at the time of his intervention, and he cannot change the issues between the parties or raise new ones. Intervention, even when permissible, must be had during the pend-ency of an action before the issues between the original parties have been determined, and a final decree has been entered. (Groves v. Farmers State Bank, 368 Ill. 35; Hairgrove v. City of Jacksonville, 366 Ill. 163; First Nat. Bank v. Village of Dolton, 254 Ill. App. 521; Fisher v. Capesius, 369 Ill. 598.)

The failure to make the receiver of the trust company a party to the order entered on April 2, 1938, is immaterial on the question of the petitioner’s right to intervene. The receivership of the company was dismissed with prejudice on April 2, 1938, and it is admitted that the receivership did not automatically dissolve the trust company. Whether the receiver himself was discharged does not appear, but the record shows that the receiver’s attorney acquiesced in the order of April 2, 1938. We believe it significant that the receiver does not appear or join in this petition and he does not claim that any of his rights as receiver of the trust company were violated, nor does the petitioner claim that it has acquired any interest from the receiver which it is entitled to assert at this time. We see no merit to the petitioner’s claim to intervene on this ground.

From an examination of the other ground urged for intervention we find that the actual assignment and the guarantee referred to in the petition, which are relied upon to show the petitioner’s interest in the subject matter involved, have not been pleaded either in legal effect or by way of a copy attached to the petition. In the absence of any evidence as to the nature and effect of the assignment or of the guarantee, it is impossible to determine whether the petitioner acquired a sufficient interest to entitle it to intervene in this proceeding. It appears that the petitioner was active in the affairs of the trust company prior to April 1, 1938, that through its counsel the petitioner suggested and induced the action taken by the trust company in making the $3,000 settlement with the beneficiaries and securing the approval thereof by the court. We must presume whatever interest the petitioner acquired after April 2, 1938, was taken with notice of and subject to the settlement approved by the court. No fraud is alleged. The petitioner simply asks to relitigate the closed issues in this proceeding after final decree, and we are of the opinion that the court did not abuse its discretion in striking the petition.

The order of the trial court is affirmed.

Affirmed.


text:
    James E. Davis and Minnie Davis, Appellees, v. M. E. Robinson and Maud Robinson, Appellants.
    Opinion filed November 8, 1939.

      D. F. Moore, of Benton, for appellants.
    Everett Lewis and Roy C. Martin, both of Benton, for appellees.
   Mr. Justice Dady

delivered the opinion of the court.

The appellees, James E. Davis and Minnie Davis, (hereinafter called the “plaintiffs”), brought this suit for forcible entry and detainer against the appellants, M. E. Bobinson and Maud Bobinson (hereinafter called the “defendants”), for possession of a dwelling house and two adjoining lots located in the city of Sesser, Illinois. The suit was commenced on August 12, 1938, before a justice of the peace in Franklin county. On appeal from the justice court, the cause was tried by the circuit court of Franklin county without a jury on December 5,1938, and judgment was rendered in favor of the plaintiffs and against'the defendants for possession of the whole of the premises. The defendants appeal.

Prior to the commencement of the actual trial, the defendants filed their written motion for a rule on the plaintiffs to elect under which clause or clauses of section 2 of the Statute of Forcible Entry and Detainer [Ill. Rev. Stat. 1937, ch. 57, §2, p. 1700; Jones Ill. Stats. Ann. 109.264] they would proceed. We are not required to consider or decide whether said motion was proper. The plaintiffs did not contest or question this motion, but in response thereto, the plaintiffs voluntarily and without a court order filed their written election and stated they relied upon clause 1 and clause 3 of section 2 of said act. Section 2 of said Forcible Entry and Detainer Act provides, that the person entitled to the possession of lands or tenements may be restored thereto under clause 1 of said section when a forcible entry is made thereon, and under clause 3 of said section 2 when entry is made into vacant or unoccupied lands or tenements without right or title.

The main point relied upon by the defendants to reverse the judgment is that the evidence before the court was not sufficient to sustain the judgment under either clause 1 or clause 3 of said section 2 of said Forcible Entry and Detainer Act.

It appears from the evidence that the property in question was owned by Dr. J. H. Vetter “several years ’ ’ before the trial. ‘ ‘ Ten or twelve years ’ ’ before the trial Vetter, who at that time was in possession of the property, moved to Rockford, Illinois, where he has since resided. At the time Vetter moved he left the property in charge of J. R. Weatherington who lived on the property “so long as he remained in Sesser.” In June of 1934 one Otie, with the permission of J. R. Weatherington, was in possession of the property. On June 18th or 21st of 1934 Otie moved out of the property and turned over the keys to the defendants without any authority from the Vetters. At the time Otie was moving out the defendants were moving into the property and Otie removed the last of his effects after the defendants had moved in. The defendants have since occupied the property and are now in possession. On June 30, 1938, Vetter, his wife and daughter, conveyed all of their interest in the property to the plaintiffs by quitclaim deed of that date. None of the Vetters testified at the trial. The plaintiffs have never been in actual possession of the property.

In actions based on clause 1 of section 2 of the act, above mentioned, the plaintiff must charge and prove he was in actual possession of the premises and his possession was invaded by the defendant. An invasion of the plaintiff’s actual possession of the premises at the time of the alleged entry.is a prerequisite to recovery. (West Side Trust & Savings Bank v. Lopoten, 358 Ill. 631.) The plaintiffs, we find, never having been in actual possession, could not recover under clause 1. Assuming but not holding that the evidence shows the defendants invaded the possession of Vetters, and although the Vetters or some one of them may have had a cause of action, the plaintiffs, as assignees, cannot avail themselves of the Vetters’ right under said clause 1 for the reason that this right of action cannot be assigned. (Fitzgerald v. Quinn, 165 Ill. 354.)

The plaintiffs’ proof likewise fails to sustain the judgment under clause 3 of section 2 of the Forcible Entry and Detainer Act. It is essential under this clause to show an entry made into vacant and unoccupied lands or tenements without right or title. The proofs show and we find that the property was not vacant or unoccupied. The terms vacant or unoccupied lands and tenements have been construed to mean “not in the actual possession of any one.” (Wylie v. Fisher, 337 Ill. 488.) The evidence shows that the acts of Otie in moving from the property and the acts of the defendants in taking possession of the property were simultaneous and concurrent and that there was no time when the property was not in the actual possession of one or the other of such parties.

The plaintiffs do not urge or pretend to sustain the judgment on either clause 1 or clause 3 of said section 2 relied on by them in the trial court, but state in their brief and argument that a right of action exists under the second clause of section 2 which gives a right to relief when a peaceable entry is made and the possession unlawfully withheld. The plaintiffs have now shifted their deliberate position taken in the trial court and have assumed in this court a new theory. A party cannot try a case on one theory in the trial court and on another theory in a court of review. (Chicago Title & Trust Co. v. DeLasaux, 336 Ill. 522.) This rule is applicable and is enforced whether the result is in their favor or against them. (Pluard v. Gerrity, 146 Ill. App. 224.) It is the rule both in law and equity. (Jack sonville Hotel Bldg. Corp. v. Dunlap Hotel Co., 350 Ill. 451; Stevens v. Partridge, 109 Ill. App. 486.) Its enforcement promotes consistency of action before the courts, and prejudice need not first be shown before the courts will enforce such rule. This rule of practice is not considered arbitrary by the courts and is considered necessary for the administration of justice. (Kellner v. Schmidt, 328 Ill. 426.) The plaintiffs have violated this rule. Whether the evidence in this case does or does not sustain the judgment under clause 2 of said section 2 of the Forcible Entry and Detainer Act, we do not decide. The defendants prepared and tried the case on the grounds relied on by the plaintiffs in the trial court. The plaintiffs on their own motion adopted a definite theory for recovery, which we hold is not sustained by the evidence, and this court must review the case as presented to the trial court by the parties herein and does not sit to try issues presented for the first time in this court. (Wollenberger v. Hoover, 346 Ill. 511; Stevens v. Partridge, supra.)

For the reasons assigned the judgment of the trial court is reversed. The reversal in this case, however, will be without prejudice to the right, if any, of the plaintiffs to bring suit under clause 2 of section 2 of said Forcible Entry and Detainer Act, such cause of action, if any, not having been claimed by the plaintiffs in the trial court or adjudicated in this suit.

Reversed.


text:
    Chloe Goad, Appellee, v. George Obernagel and Peter Obernagel, Appellants, and Carrie Hitch, Defendant.
    Opinion filed November 8, 1939.
    Kramer, Campbell, Costello & Wiechert, of East St. Louis, and Lord, Bissell & Kadyk, of Chicago, for appellants.

      Walter Grossman, of Belleville, and Beasley & Zulley, of East St. Louis, for appellee.
   Mr. Justice Dady

delivered the opinion of the court.

The plaintiff, Chloe Goad, brought this suit in the circuit court of St. Clair county under the Dramshop Act to recover damages for personal injuries sustained by her. The tavern keeper, Carrie Hitch, who does not join in this appeal, and George Obernagel and Peter Obernagel, the owners of the premises on which the tavern was located, were made defendants. On a trial before the court with a jury, judgment was entered on the verdict in favor of the plaintiff for the sum of $1,000 against all of the defendants. The owners of the premises appeal.

The undisputed facts are that during the night of April 17 and the morning of April 18, 1937, while Carrie Hitch operated a tavern in a certain premises in the city of Belleville, she sold and gave intoxicating liquors to Charles Schmidt; that the property in question was then owned by the defendants, George Obernagel and Peter Obernagel, who as owners permitted the occupation of their property by Carrie Hitch with the knowledge that intoxicating liquors were to be sold therein; and that at the time and place in question Charles Schmidt, while in the premises and after intoxicating liquors had been sold to Turn by the defendant Carrie Hitch, struck the plaintiff and fractured her jaw. In addition to these undisputed facts, the plaintiff offered evidence proving or tending to prove that Charles Schmidt, the assailant, was intoxicated at the time he assaulted the plaintiff, while the defendants offered evidence tending to prove that Schmidt was not then intoxicated.

Only three alleged errors are argued.

Defendants’ first contention is that the verdict is contrary to the evidence on the ground that the plaintiff has not sustained the burden of proof as to Schmidt’s intoxication by credible evidence. Three witnesses testified for the plaintiff on this subject. They were the plaintiff, Chester Goad, her husband, and Lexie Cheek, her sister. Lexie Cheek and the plaintiff stated that at the time the plaintiff was struck Schmidt was “drunk.” Chester Goad said that at that time Schmidt was “intoxicated.” To meet this proof, four witnesses testified for the defendants. They were Schmidt and three police officers named Lincoln Luke, John West and Eugene Lepere. Luke and West went to the tavern in response to a call and arrived shortly after the plaintiff was injured and took Schmidt and Goad into custody and returned to the police station, where officer Lepere was on night duty. Luke testified that at that time Schmidt was not staggering, that Schmidt talked sensibly, and in his opinion he couldn’t say Schmidt was intoxicated or drunk. Lepere said in his opinion Schmidt wasn’t drunk. Schmidt testified that he obtained and drank five bottles of beer in the tavern before he struck the plaintiff but that he was sober and not drunk. Chester Goad assisted as bar tender and testified he served Schmidt six or eight bottles of beer. The plaintiff, Lexie Cheek and Carrie Hitch, the tavern keeper, were sisters. The tavern keeper did not defend but was defaulted and did not testify. Chester Goad is the husband of the plaintiff. The owners were the only ones who defended and brought this appeal. Counsel for the owners, in their argument, state that “a set-up such as this must be viewed with suspicion under any circumstances.” The relationships of the parties are unusual facts but the jury was advised of such facts. We cannot say, as a matter of law, that because of such unusual facts the witnesses for the plaintiff did not tell the truth or that the plaintiff cannot recover. The question whether Schmidt was intoxicated was one of fact. It is peculiarly within the province of the jury to determine the weight of the evidence and the credibility of the witnesses, and we cannot say from the record, as we must do if a reversal is made, that on such issue the verdict of the jury is palpably against and contrary to the manifest weight of the evidence. It is not contended that the verdict is at all excessive and it is not contended that the jury was influenced by passion or prejudice. The credibility of all and each one of the witnesses was a question which the jury had to decide. There was a conflict in the evidence and the question of the fact as to intoxication of Schmidt we hold was settled by the verdict. (People v. Hanisch, 361 Ill. 465; Jones v. Esenberg, 299 Ill. App. 551; Carroll v. Krause, 295 Ill. App. 552.)

The defendants next contend that the court erred in allowing the attorneys for the plaintiff to challenge peremptorily six jurors over the objection of the defendants. It is urged that under the provisions of section 66 of the Civil Practice Act (Ill. Rev. Stat. 1937, ch. 110, sec. 190 [Jones Ill. Stats. Ann. 104.066])'the plaintiff was only entitled to five challenges. This contention is untenable. On a similar contention made in the case of Schultz v. Gilbert, 300 Ill. App. 417, this court construed the foregoing section of the Practice Act and held' that insofar as the section provides the extra peremptory challenges for one set of parties, because of numbers, it also means that the other set, either singly or in numbers, are entitled to the same ratio of peremptory challenges. There being three defendants in this case the plaintiff, under 'the foregoing rule, was entitled to the sixth challenge. We adhere to this construction of the section in question.

Defendants next contend that the court erred in a ruling on the admission of evidence. Counsel for plaintiff asked the witness Chester Groad the following question: “Q. What was his (Schmidt’s) condition, Mr. Quad, would you say with reference to whether he was intoxicated in whole or in part!” Counsel for the defendant made the following objection: “I object to whether he was intoxicated in whole or in part. The statute presumes he has to be intoxicated,” which objection the court overruled. The witness answered, “I would say he was intoxicated.” It will be noted that the witness did not say that Schmidt was partly intoxicated. No harm was done plaintiff by the ruling for the reason that the witness replied Schmidt was intoxicated, not intoxicated in whole or in part. Furthermore, the court gave an instruction at the request of the defendants instructing the jury that the words “in whole or in part” in the statute are not used with reference to the intoxication of a person, that the person to whom the liquor is sold or given must, by the use of it, have become in fact intoxicated before the plaintiff can recover, that part intoxication will not meet the requirements of the law, that the statute bases the right of recovery on intoxication and not on part intoxication, and that unless the jury believed Schmidt was in fact intoxicated and that his intoxication was caused in whole or in part by alcoholic liquor sold by Carrie Hitch they should find the defendants not guilty. No instruction to the contrary was given. In view of the answer of the witness and of the giving of such instruction, we do not consider that the jury was misled by the ruling on the question.

There being no reversible error, the judgment of the circuit court is affirmed.

Affirmed.


text:
    John Robert Harrell, Minor, by Zetta Moore, Guardian, Appellant, v. Bankers Mutual Life Company of Freeport, Appellee.

      Opinion filed November 8, 1939.
    E. Harold Wineland, of Flora, for appellant.
    Smith, George & McCollum, of Flora, for appellee.
   Mr. Justice Dady

delivered the opinion of the court!

This is an appeal from a judgment of the circuit court of Clay county in favor of the defendant Bankers Mutual Life Company of Freeport, Illinois, in a suit brought upon a life insurance policy by plaintiff, John Robert Harrell, the beneficiary named therein. The case was submitted to the trial court without a jury upon a stipulation of facts.

On March 27, 1919, defendant issued to Jerome W. Harrell its life insurance policy. The only provisions of the policy material to a determination of this case are the following:

“Bankers Mutual Life Company.

“In consideration of . . . the payment in the manner specified of the premiums herein stated, . . .

Hereby Insures the life of the person herein designated as the Insured, for the amount named herein, payable as specified.

“Insured . . . Jerome W. Harrell . . .

“Amount of Insurance . . . Two Thousand Dollars, less any unpaid portion of the current year’s premium

“Premiums . . . Twenty-two and 40/100 Dollars as a first annual premium . . . and the further payment of a semi-annual renewal premium of Eleven and 42/ 100 Dollars dne on the 27th day of March & September of each year thereafter.

“Provisions, Conditions and Benefits

“Incontestability. . . .

“This Policy shall Be Incontestable After Two Years Prom Its Date, Except for Fraud or Non-payment of Premiums.

“Grace in Payment. Thirty days grace will be allowed in payment of any Premium after the first year, during which time the insurance shall continue in force.

“Reinstatement. In case this Policy is forfeited for nonpayment of premium, it may be reinstated within one year thereafter by the Insured furnishing evidence of insurability satisfactory to the Company and the payment of all premiums then due.”

The first and subsequent premiums were duly paid until September 27, 1936, when the insured failed to pay the semiannual renewal premium then due, and failed to pay the same within the grace period provided by the policy. On November 2, 1936, the insured executed a blank form furnished by the company, the material provisions of which are as follows:

‘ ‘ Certificate of Insurability and Application for Eeinstatement of Policy

“I hereby request the Bankers Mutual Life Company, Freeport, Illinois, to reinstate Policy No. 11296, . . . which has lapsed according to its terms on account of my failure to pay the premium past due, . . .

“I agree that if said payment of premium now past due is accepted, the Company waives no right to refuse nor incurs any obligation to accept any future past due premium on said Policy ...”

Natalia Harrell, the wife of the insured, sent this instrument, so executed, to the company on November 2, 1936, together with her individual check for $11.42, in payment of the premium due September 27, 1936, which check was cashed by the company. It is not denied that by such action the policy was reinstated.

On January 12,1937, Natalia Harrell, the wife of the insured, wrote to the company, asking to whom the policy was payable and when “the premium is due,” and stating that if at any time the payment of premium was not made on the policy when due to send her a notice of the amount and she would send a check by return mail. On January 15, 1937, the president of the company wrote her that the company was not “presumed” to give out information to any one except the policy holder unless the insured requested it to be done and that if she wanted the premium notice sent to her, it would be necessary for her to secure and send to the company a written request from the policy holder and the company would then be glad to comply with the insured’s wishes. Mrs. Harrell and the plaintiff then attempted to procure such request from the insured, which request the insured refused to give. Neither plaintiff nor his mother knew the due dates of any of •the premiums, including the premium due on March 27, 1937.

On March 7, 1937, the company sent the insured notice of the semiannual renewal premium due March 27, 1937, which notice stated that “payment must be made on or before date given below or within thirty-one days thereafter to continue this policy in force according to its terms. ’ ’ The date of payment specified in the notice was March 27,1937. On the back of this notice, among other things, appeared the following, “To avoid lapsing through neglect, pay today.” The premium due March 27,1937, was never paid. On April 17,1937, the company mailed to the insured a notice labeled “last notice ’ ’ which notice notified the insured that the premium had not been paid and that “it is of the utmost importance that settlement should be made promptly. If you have any questions to ask, address this office.” On April 28,1937, the company mailed to the insured a notice notifying him that the policy “has ceased to be in force on account of the premium due recently not having been paid,” which notice advised the insured in substance that it was to his interest to continue the policy and that he could do this by filling out the health certificate printed on the opposite side of such notice and sending it to the company with his remittance of the amount of the premium. The notice further stated that the company reserved the right to require additional evidence of insurability satisfactory to the company “before reinstating any policy.” The insured duly received each of these three notices and made no reply to any of them.

The insured died on June 2, 1937, leaving Natalia E. Harrell, his widow, and the plaintiff, his son, who is a minor. The policy was found among other papers belonging to the estate of the insured. The insured and his wife at the time of his death and for. 12 months prior thereto were living separate and apart and the son did not make his home with his father during this period.

It was stipulated that at the time of the death of the insured and for six months prior thereto he was suffering from chronic alcoholism, which affected Ms “mental and physical condition”; that the observable effects varied “from periods of apparent normalcy to periods of acuteness demonstrated by delirium tremens”; that during said period he remained in active control and management of his affairs and was on the day of his death at his place of business and in the conduct and management thereof. No proceedings for the appointment of a conservator of the estate of the insured were ever had.

The principal question presented stands out clearly: Was the policy of insurance in full force and effect on June 2, 1937, the date of the death of the insured, notwithstanding the failure to pay the March 27, 1937, premium, followed by a notice from the company to the insured that the policy had lapsed by reason of the insured’s failure to pay this premium?

We believe that after the nonpayment of the premium due March 27, 1937, the company had the right to bring its obligation under this policy to an end by taking affirmative and reasonable action to accomplish that purpose. The policy expressly provides that it shall be incontestable after two years from its date “except for fraud or non-payment of premiums,” and that 30 days grace is allowed in the payment of any premium after the first year, “during wMch time the insurance shall continue in force.” Under “reinstatement” it is provided: “In case this Policy is forfeited for non-payment of premium, it may be reinstated within one year thereafter by the Insured furmshing evidence of insurability satisfactory to the Company, and the payment of all premiums then due.” A policy of insurance is a contract and as such is to be interpreted and construed by the same rules as other mercantile contracts. (Aurora Fire Ins. Co. v. Eddy, 49 Ill. 106; Cottingham v. Nat. Mut. Church Ins. Co., 290 Ill. 26.) The language used in these provisions of the policy must be given some meaning and effect, and we believe that the company thereby intended to and did reserve the right to declare the policy lapsed or forfeited for the nonpayment of premiums. This is a reasonable construction, and was the construction evidently adopted by the company and the insured at the time he applied for reinstatement in November, 1936. In construing this language, this rule laid down by the court in Crosse v. Supreme Lodge Knights & Ladies of Honor, 254 Ill. 80, 86, is applicable: “The rule that ambiguous language is to be construed most strongly against the insurer does not authorize a perversion of language or the exercise of inventive powers for the purpose of creating an ambiguity where none exists.” To be sure, the policy did not specify the procedure to be taken by the company in order to declare the policy lapsed for nonpayment of the premiums, but we consider that the procedure taken by the company in giving the three notices was reasonable and sufficient to bring about a lapse of the policy.

The case of Haas v. Mutual Life Ins. Co., 84 Neb. 682,121 N. W. 996, cited by plaintiff as a leading case, is not in conflict with the principles which we have followed in the instant case. In the Haas case, the court was concerned solely with the question of whether nonpayment of a premium automatically worked a forfeiture of a policy and no question of the effect of a default followed by a notice of lapsing was involved.

The holding in the Haas case has been followed and approved in Ingersoll v. Mutual Life Ins. Co., 156 Ill. App. 568, in which last case the court, at p. 573, states, “We are therefore of the opinion that in this case as in the Nebraska case, mere nonpayment of a premium did not avoid the policy and forfeit the premiums paid; that the insurance continued in full force, subject to a lien for the unpaid premiums, and to a right on the part of the company to terminate the contract if after due notice the insured should fail to comply with the condition that is to pay the premium.” (Italics ours.)

We feel that in the instant case the company, by giving notice to the insured of the lapsing of his policy, has followed the procedure suggested in the Ingersoll case and has properly terminated its liability. Where an insured has failed to pay the premiums provided for by his policy, it is manifestly fair to give the company the right to terminate its liability by proper notice. In the case of Mutual Life Ins. Co. v. Hill, 193 U. S. 551, 48 L. Ed. 788, 24 Sup. Ct. 538, the insured, after receiving notice, failed to pay a premium provided for by his policy and continued such failure for a period of four years prior to his death. The policy did not contain any express forfeitures clause. Suit was brought for the full amount of the policy plus interest. After disposing of the contention that the policy was covered by New York law which required the giving of a statutory notice of forfeiture, the court, speaking through Mr. Justice Brewer, said: “Yet, notwithstanding his failure to perform his part of the contract— and performance by the insured underlies the obligation of the insurance company to perform on its part— this action was brought to compel the same performance by the company that would have been due if he had performed. It is simple justice between two parties to a contract containing depending stipulations that neither should be permitted to exact performance by the other without having himself first performed. It is true cases arise in which one party is enabled to take advantage of some statutory provision and exact compliance from the other without having himself first complied, and courts may not ignore the scope and efficacy of such statutory provision, but, nevertheless, a judgment for failure to perform against one party in favor of the other, when the latter was the first delinquent, is offensive to the sense of righteousness and fair dealing. . . . Courts have always set their faces against an insurance company which, having received its premiums, has sought by technical defenses to avoid payment, and in like manner should they set their faces against an effort to exact payment from an insurance company when the premiums have deliberately been left unpaid.” To the same effect, see Burke v. Prudential Ins. Co. of America, 221 Mass. 253, 108 N. E. 1069.

Plaintiff also contends that the conduct of the company in refusing to notify the plaintiff or his mother of the due dates of the premiums under this policy constitutes the basis of an estoppel which precludes the company from taking any action to forfeit its obligation under the policy, but cites no authority in support of this contention. The policy was a contract solely between the insured and the defendant company, and neither the wife of the insured nor the beneficiary had any interest under the policy during its continuance. (Davis v. Metropolitan Life Ins. Co., 285 Ill. App. 398.)

We do not regard the stipulated evidence as to the insured’s mental and physical condition during the 12 months period prior to his death as material to any of the issues before the court, nor are we able to find any course of dealing either between the insured and the defendant, or the defendant and the plaintiff and his mother, which would warrant us in holding that the defendant is precluded from relying upon its right to void the policy in question.

While the result of the insured’s careless or wilful failure to pay the premium due on his policy, after notice and ample opportunity had been given to him by the defendant company, is unfortunate and has deprived plaintiff of the benefits of this policy, we do not feel that this result is properly chargeable to the defendant or should be considered in reaching a decision in this case.

For the reasons indicated the judgment of the circuit court is affirmed.

Affirmed.


text:
    Irene Habenstreit, Appellee, v. City of Belleville, Appellant.

      Opinion filed November 8, 1939.
    L. N. Nick Perrin, Jr., of Belleville, for appellant.
    Lindauer & Lindauer, of Belleville, for appellee; Sam S. Pessin, of counsel.
   Mr. Justice Dady

delivered the opinion of the court.

Irene Habenstreit, herein referred to as plaintiff, brought this action in the circuit court of St. Clair county against the city of Belleville, herein referred to as defendant, for personal injuries. The trial court entered judgment in her favor for $1,500 on a verdict of the jury. The city brings this appeal.

The defendant does not contend it was not negligent but urges that under the evidence in this case the plaintiff was guilty of contributory negligence as a matter of law. We will state only the facts material to such issue. The accident occurred on December 29," 1937, about one o ’clock a. m., on South First street, hereinafter referred to as “First street,” in said city. First street runs in a northerly and southerly direction, and intersects Adams street which runs easterly and westerly. Just south of Adams street 11 tracks of the Illinois Central Railroad run in a northwesterly and southeasterly direction across First street, and occupy a space of about 350 feet. In 1926 that part of First street covered by the railroad right of way was vacated and abandoned. North of the railroad tracks First street was paved with brick, the south end of the pavement being 59 feet north of the most northerly rail of the railroad tracks. The space between such rail and the south end of the pavement was covered with a mixture of crushed stone, chat and cinders. Part of this 59 feet was used for traffic in that there was thereon a “Y” shaped drive, one branch of which led in an easterly direction to private property and the other branch in a westerly direction to private property. The northerly rail of the most northerly railroad track was about two feet higher than the southerly end of the brick pavement, the rails of such track being about six inches high. Dirt had been washed up against the most northerly rail flush with the top of the rail. There was no driveway across that part of First street so vacated and occupied by railroad tracks, and there was no fill between the rails of such tracks. There was no barricade of any kind and no sign indicating that First street north of the tracks ended where it did. South of the railroad tracks First street continued southerly in a straight line, on the same line as that part north of the tracks. There was a street light at the northwest corner of First and Adams streets, about 102 feet north of the northerly rail of the railroad tracks, and there was a street light on First street about 75 feet south of the railroad right of way, which last light was directly south of the first light.

The only eyewitnesses who testified were the plaintiff and her husband. They lived in another part of the city, and the husband testified he had “ never traveled .that roadway before. ’ ’ Plaintiff was not asked and did not testify concerning such subject. On the night in question, in an auto driven by the husband, plaintiff and her husband entered First street several blocks north of Adams street, drove south on First street, and paid a social visit at the Wolter home on the east side of First street. In doing so they parked their auto on the west side of First street, headed south, about a block north of Adams street. They arrived at the Wolter home about 10 o’clock p. m. and left there about 1 o ’clock a. m. The night was foggy, somewhat hazy. The husband testified that he saw a light on the north side of the track and another light immediately south of the track; that while so driving at a speed of about 20 or 25 miles an hour he drove straight south and struck a rail or rails. It was not disputed that plaintiff was injured by the jolting of the car. Plaintiff testified that the auto lights were “dim”; that she was watching the roadway and did not say anything to her husband about the way he was driving. On cross-examination she was asked, “Did you see those railroad tracks before you got to them?” and her only answer was, “I saw it was a crossing, yes. ’ ’

Ordinarily the question of whether or not a plaintiff was in the exercise of reasonable care for his or her own safety at and immediately prior to receiving an injury, is a question of fact for the jury. (Devine v. Pfaelzer, 277 Ill. 255.) The law does not charge one with anticipating dangers and negligent conditions, but he may assume that others have done their duty to give proper warning of hidden dangers. (Pollard v. Broadway Cent. Hotel Corp., 353 Ill. 312.) It is the duty of a passenger in a vehicle, where he has an opportunity to learn of danger and to avoid it, to warn the driver of such approaching danger, and he has no right, because some one else is driving, to omit reasonable and prudent efforts on his own part to avoid danger, but where there is any evidence before the jury which taken with its reasonable inferences in its aspect most favorable to plaintiff, tends to show the use of due care, the question of due care is one for the jury. (Dee v. City of Peru, 343 Ill. 36.)

We cannot say as a matter of law that the rate of speed was unreasonable. The night was somewhat foggy and there was no warning whatever of the danger. There was ample evidence to justify the jury in believing that the plaintiff and her husband could reasonably assume and reasonably believe that this was an ordinary crossing over railroad tracks in a city and that they could safely drive across such tracks. We cannot say that the jury was not justified in finding that the plaintiff was exercising reasonable care for her own safety.

The Dee case, supra, and other cases cited by the defendant do not state any rules of law in conflict with those already stated. In the Dee case the accident happened in broad daylight, the view was unobstructed and the driver drove through a closed gate that could be seen for a distance of at least 110 feet. The case of Greenwald v. Baltimore & O. R. Co., 332 Ill. 627, and other railroad cases are cited by the defendant. In each of those cases the injured party was struck by a train. The statement in those cases that railroad crossings are dangerous places and one crossing the same must approach the track with the amount of care commensurate with the known danger was not meant to be and was not an expression of opinion by the court that such a crossing is as a matter of law a dangerous place because of the physical condition of the crossing itself, but merely, as we view it, that such crossings are dangerous because of the possibility or probability of approaching trains.

The defendant contends ‘ ‘ there is no testimony in the record except a statement of the plaintiff that the hospital bill is reasonable,” and that there is “no proof in the record that the doctor who testified as to the reasonableness of the charges made by St. Louis physicians is qualified to testify as to these charges.” Neither the abstract nor the record shows that any objection was made to the hospital bill or to the doctor testifying on the ground that it was not shown he was not qualified to give an opinion as to the reasonableness of such charges. In the absence of such objection, the defendant cannot now complain.

No claim is made that the verdict was excessive.

The judgment of the circuit court is affirmed.

Affirmed.


text:
    Hattie Hickey, Appellant, v. Washington National Insurance Company, Appellee.
    Opinion filed November 8, 1939.
    Rehearing denied December 15, 1939.

      Eovaldi & Eovaldi, of Benton, for appellant.
    R. J. Wetterlund, of Evanston, and Hickman & Hickman, of Benton, for appellee.
   Mr. Justice Dady

delivered the opinion of the court.

This is an appeal from a judgment, in an action at law, of the circuit court of Franklin county in favor of appellee, Washington National Insurance Company, a corporation, herein referred to as the defendant, and against the appellant, Hattie Hickey, herein referred to as the plaintiff. The case was submitted to the trial court without a jury and on a stipulation of facts.

On November 15, 1935, the defendant issued to Harry Benjamin Hickey, as the insured, an accident insurance policy whereby, for the benefit of the plaintiff, who was the wife of the insured, the defendant insured the deceased against loss of life from injury in the sum of $1,500 if such injury should be sustained by the wrecking of an automobile while driven by him. The insured died on April 14, 1938, as the result of an accidental injury sustained by him on February 14, 1938, by the wrecking of an automobile while driven by him.

The defendant disclaims liability on the ground that the policy contained the following provision, “Indemnity for loss of life . . . shall be paid only when such loss occurs within thirty days after the date of the accident causing such loss,” and that the insured did not die within 30 days after the date of the accident as required by said provision.

To overcome this contention of the defendant the plaintiff contends that under the holding of this court in Mowery v. Washington Nat. Ins. Co., 289 Ill. App. 443, the defendant cannot take advantage of such quoted provision of the present policy. It was stipulated in the instant case that the present policy was the same form of policy as the form of policy in the Mow ery case. In the Mowery case the court held that the company could not disclaim liability because of such quoted provision in the policy for the reason that such provision was an exception from liability and was not printed in the policy with the same prominence as the benefits to which such exception applied as required by section 2 of an act of our legislature entitled “An Act concerning and to regulate policies, . . .” approved June 29, 1915. Section 2 of such act provided that no policy therein referred to “shall” be issued or delivered unless the exceptions of the policy be printed with the same prominence as the benefits to which they apply. In the instant case the defendant contends that the Act of 1915 does not apply to or in any way affect the policy in question for the reason that section 12 of such act expressly provided that nothing in said act should apply to or affect any policy of insurance on which the premiums “are payable weekly.” It does not appear from the opinion in the Mowery case that section 12 of the Act of 1915 was there called to the attention of the court. The court did not in that case refer to or discuss or pass upon the effect of section 12. Therefore the Mowery case is not applicable.

Section 12 of the Act of 1915 expressly provided that nothing in such act should apply to or affect any policy of insurance on which the premiums “are payable weekly. ’ ’ Our attention has not been called to any provision in said act inconsistent with said section 12. Therefore, if the policy in the instant case was a policy on which the premiums were payable weekly, such policy was not affected by the Act of 1915.

Plaintiff contends that the premiums under this policy were not “payable weekly” within the meaning of section 12 of the Act of 1915 for the reason that it was stipulated in this case that “premiums in advance by the month were paid on said policy from the time of its issuance, ’ ’ and that the insured continued to be a registered subscriber to the St. Louis Star-Times from the time the policy was issued up to the date of his death. The wording of the policy with reference to premiums was as follows: “The date of this policy is Nov. 15, 1935; its weekly premium is five cents (5c); it takes effect at twelve o’clock noon, Standard Time, at the residence of the Insured of the date hereof, . . . and . . . shall continue in force as long as the premium shall be paid in advance by the publication named herein, as agreed, and be accepted by the Company and the Insured shall continue to be a registered subscriber (vis., a home delivery or a mail subscriber, paying therefor on regular prescribed terms, without delinquency) to the St. Louis Star-Times.” In our opinion the present policy was a policy on which the premiums were payable weekly within the meaning of section 12 of the Act of 1915, notwithstanding the fact that the premiums were paid monthly in advance, and notwithstanding the fact that the policy was conditioned that the insured continue to be a subscriber to a certain newspaper, paying therefor on regular prescribed terms. The only premium was five cents per week, which premium was a weekly premium payable in advance, and could, as we view it, be paid in advance in any amount that might be accepted. The fact that premiums were paid monthly in advance did not change the contract represented by the policy so that premiums could be required to be paid monthly in advance. The requirement as to being a regular newspaper subscriber was no part of the premium, but was a condition qualifying the insured to continue the policy in force. Being a policy on which the premiums were payable weekly, such policy by the express provision of said section 12 was not in any way affected by the Act of 1915.

Plaintiff next contends that if the Act of 1915 does not apply, then the rights of the parties are to be determined under an act of our legislature entitled, “An Act to revise the law relating to insurance and to repeal certain Acts therein named, ’ ’ approved June 29, 1937-, inasmuch as the insured died April 14, 1938. We do not consider that the 1937 act in any way affected the policy in question or the rights of the parties under such policy. In Crawford v. Northwestern Traveling Men’s Ass’n, 226 Ill. 57, the court said: “It is insisted by counsel for appellant that the law writes into every contract the provisions of the statute that are applicable to the transaction. This is true only as to statutes existing at the time the contract was made. Statutes subsequently passed cannot constitutionally abrogate or impair the obligation of contracts already in existence.” See also Jones v. Loaleen Mut. Benefit Ass’n, 337 Ill. 431, and People v. Board of Education, 349 Ill. 390.

Our attention not having been called to any statute in force at the time this policy was issued mailing illegal or prohibiting the provision of the policy providing that indemnity for loss of life should be paid only when such loss occurred within 30 days after the date of the accident, and such provision not violating any rule of law, the defendant, by reason of such provision of the policy, is not liable under such policy.

There being no liability under the policy, the plaintiff is not entitled herein to any attorney fee.

The judgment of the circuit court is affirmed.

Affirmed.