text:
    The Village of Carterville v. Samuel Cook, by Next Friend.

      Municipal Corporations—Negligence — Sidewalk — Evidence — Expert Testimony—Instructions.

    1. Although a municipal corporation docs not insure the safety of persons using its sidewalks, its officers are bound to keep such walks in reasonably safe condition and repair, and an action will lie on behalf of a person injured because of the negligent failure of such officers to perform their duty in this regard.
    2. In the absence of contributory negligence on the part of a person injured because of the defective or unsafe condition of a sidewalk, although the primary cause of the injury is a pure accident which of itself would not have resulted in harm, the corporation is liable for such injury.
    3. In an action against a municipal corporation to recover for an injury caused hy being accidentally pushed off an unprotected sidewalk, this court declines to interfere with the verdict for the plaintiff.
    [Opinion filed January 10, 1888.]
    Appeal from the Circuit Court of Williams County; the lion. David J. Bakeb, Judge, presiding.

      Appellee brought this suit in caso to recover damages for personal injury alleged to have resulted from the negligence of appellant in permitting its sidewalk to be and remain without banister, or railing, or guards, on the side thereof, at a place where said walk was elevated above the surface, thereby rendering it unsafe for school chi’dren and others using it. A trial was had,-the jury found defendant guilty and assessed plaintiff’s damages at $1,000. Defendant filed its motion for a new trial, which the court overruled, and rendered judgment on the verdict, to reverse which defendant took this appeal.
    The sidewalk in cpiestion was constructed over and across a low place or depression in the street of appellant, for a distance of about 300 feet, and its height above the surface, at the point where appellee claimed he fell, was about six feet, with a banister or railing on one side, the other side of the walk being provided with no banister or other guard. This sidewalk was on one of the main streets of the village, was much used by the public generally, was traveled over by persons going to and from a church in its vicinity, and was passed over daily by at least half the number (three to four hundred) of children attending a public school. At the time he was injured appellee was one of the scholars, and he testified, while on his way home from school at noon, in walking along this sidewalk at the highest point above the ground, two of the scholars, who did not notice him as he approached, were standing on the side next the banister, and as he was in the act of passing by them, one of them pushed the other against him, and he was thereby thrown off the side that was unprotected by a banister, fell a distance of about six feet upon the ground below and received the injury complained of.
    Messrs. James M. Washburn and Joseph W. Hartwell, for appellant.
    The duty to erect railings or barriers, even when they would give more complete protection, is not an absolute one. A municipal corporation may determine for itself to what extent it will guard against mere possible accidents. The judicial tribunals are not to say it shall suffer in damages for not giving more complete protection. That would practically take the administration of municipal affairs out of the hands to which it has been intrusted by law. 2 Dillon’s Municipal Corporations, Sec. 1005; Lansing v. Toolon, 37 Mich. 132; City of Freeport v. Isbell, 83 Ill. 440. Want of railings is not negligence per se. Staples v. Canton, 69 Mo. 592.
    Mor is it allowable to determine that four feet is not a sufficient width in a sidewalk to protect a municipality from the charge of negligence; and an assumption that a sidewalk only four feet wide, without railings, is of itself a circumstantial act of negligence, is unwarrantable. Town of Fairbury v. Rogers, 2 Ill. App. 96; Town of Grayville v. Whitaker, 85 Ill. 439.
    A village is not an insurer against accidents. It is not required to have its sidewalks so constructed as to secure absolute immunity from danger in using them. Mor is it bound to employ the utmost care and exertion to that end. It is not required to foresee and provide against every possible danger or accident that may occur; but is only required to keep its sidewalks in a reasonably safe condition. Centralia v. Krouse, 64 Ill. 19; Chicago v. McGiven, 78 Ill. 347; Chicago v. Bixby, 84 Ill. 84; Village of Gibson v. Johnson, 4 Ill. App. 288; City of Bloomington v. Read, 2 Ill. App. 542.
    The proof of negligence of appellant was upon appellee. The only evidence offered was the fact that one side of the sidewalk, which was six feet wide, and at one place five feet above the surface of the ground, and six feet above the bottom of a ditch by the side of the walk, was without banister or railing. That this is not even presumptive evidence of negligence, or that the sidewalk was no't reasonably safe for persons exercising reasonable care and caution, see Town of Fairbury v. Rogers, 2 Ill. App. 96.
    On the contrary, that the number of safe transits over this sidewalk (which an arithmetical calculation, based on the evidence, will show, amount to nearly 1,000,000 in the six years of its existence and use, with but- a single accident), is strong —nay, overwhelming, proof that this sidewalk was reasonably safe. See City of Chicago v. Bixby, 84 Ill. 84; City of El Paso v. Causey, 1 Ill. App. 531.
    Messrs. B. W. Pope and Geo. W. Young, for appellee.
    Towns are bound to erect fences or railings at places which would otherwise be unsafe or inconvenient for travelers exercising ordinary care. Collins v. Dorchester, 6 Cush. 396.
    The law requires highways to he made safe and convenient for travelers; and where, in traveling near the edge of the way, there is danger of being precipitated down an embankment, or into an excavation, or into water, a railing is necessary to render traveling on the highway safe. Without it there would be danger, and for this reason an action is given for the want of a sufficient railing, as well as for a defect or want of repair. Kimball v. Bath, 38 Me. 219; Norris v. Litchfield, 35 N. H. 271.
    Where there is a steep bank or other dangerous place so near the sidewalk as to make the walk itself dangerous as a way, or to expose travelers to injury through some accident or mischance that might be reasonably expected to follow therefrom as incident to the use of the walk in such condition, the city should be required to erect a railing to protect those thus using the walk from such apparent danger. City of Monmouth v. Sullivan, 8 Ill. App. 55.
    Where a rail or barrier is necessary for the proper security of travelers at places on the highway which, from their nature, would be otherwise unsafe, and the maintenance of which would have prevented the happening of injury, it is negligence not to construct and maintain such a barrier. Shearman and Redfield on Negligence, Sec. 591; Chicago v. Gallagher, 44 Ill. 295.
    One who passes along a sidewalk has a fight to presume it to be safe. He is not called upon to anticipate danger, and is not negligent for not being on bis gnard. McGuire v. Spence, 91 N. Y. 303; Morrill on City Negligence, 137.
    “ A person traveling on a public street, if he exercises ordinary care, has a right to be absolutely safe against all accidents arising from obstructions or imperfections in the streets.” Lincoln v. Walker (Neb.), 30 Alb. L. J. 406; Chicago v. Hickok, 16 Ill. App. 142.
    That the person injured knew of the defect before the injury, does not per se establish negligence on his part. Diveny v. Elmira, 51 N. Y. 506; Aurora v. Dale, 90 Ill. 46; Hubbard v. Concord, 35 N. H. 52.
    The mere fact that a traveler is familiar with the road, and knows of the existence of a defect therein, will not impose upon him the duty to use more than ordinary care in avoiding it. Reed v. Northfield, 13 Pick. 94; Shearman and Redfield on Negligence, 414.
    He is required to use only the ordinary care and prudence which the circumstances demand. Diveny v. Elmira, supra; Palmer v. Dearing, 93 N. Y. 7; Joliet v. Conway, 17 Ill. App. 577
    And recovery will not be prevented unless a person of ordinary prudence would not have walked there. McKenzie v. Northfield, 30 Minn. 456; Evans v. Utica, 69 N. Y. 166.
    And this is a question for the jury. Bullock v. New York, 99 N. Y. 654; Pomfrey v. Saratoga, 54 N. Y. 607; McGuire v. Spence, 99 N. Y. 654; Brusso v. Buffalo, 90 N. Y. 679.
    The plaintiff’s right to recover is not affected by his having contributed to his injury, unless he was in fault in so doing. If his share in the transaction was innocent, and not incautious, it furnishes no excuse for defendant. Shearman and Bedfield on Hegligence, Sec. 28.
    When two causes combine to produce an injury to a traveler upon a highway, both of which are in their nature proximate, the one being a culpable defect in a highway, and the other some occurrence for which neither party is responsible, the municipality is liable, provided the injury would not have been sustained but for such defect. Macauley v. New York, 67 N. Y. 602; Kennedy v. New York, 73 N. Y. 365; Clark v. Lebanon, 65 Me. 393; Galveston v. Posnainsky, 62 Tex. 118; Crawfordsville v. Smith, 79 Ind. 308; Hampton v. Taylor (R. I.), 29 Alb. L. J. 415; Morrill on City Negligence, 106.
    Hegligence may be the proximate cause of an injury of which it is not the sole or immediate cause. If the defendant’s negligence concurred with some other event (other than the plaintiff’s fault) to produce the plaintiff’s injury, so that i clearly appears that but for such negligence the injury would not have happened, a.nd both circumstances are closely connected with the injury.in the order of events, the defendant is responsible, even though his negligent act was not the nearest cause in the order of time. Shearman and Redfield on Negligence, Sec. 10.
    Where a town neglected to keep a highway reasonably safe, the fact that there was negligence of a third party in contributing to the injury is of no consequence. Burrell Township v. Uncapher, 117 Pa. 353; 10 Cent. Rep. 328.
    The fact that a large number of persons had passed over a footing without accident, is not competent evidence that the footing is not a nuisance. Temperance Hall Ass’n v. Giles, 4 Vroom, 260.
    A city can not excuse its negligence by showing that other persons had passed uninjured. Schoomaker v. Wilbraham, 110 Mass. 134; Bauer v. Indianapolis, 99 Ind. 56; Temperance Hall Ass’n v. Giles, supra; Hyatt v. Rondout, 44 Barb. 385; S. C., 41 N. Y. 619.
   Green, P. J.

We have been favored by counsel for appellant with an elaborate argument, fortified by quite an array of authorities, in support of its contention that a municipal corporation ought not to be held liable to respond in damages, in an action on the case, to one injured while in the exercise of reasonable care, in consequence of the officers of the corporation negligently permitting its sidewalk to be and remain in an unsafe condition. We regard this as no longer an open question in this State; by our statute municipal authorities are given entire control of the streets in the corporation, and thereby the duty is imposed upon it to keep its streets and sidewalks, which are a part thereof, in a reasonably safe condition and repair for the use of persons traveling on the same, and an action will lie against such corporation on behalf of one who, in the exercise of reasonable care, sustains injury by reason of the negligent failure to perform such duty, to recover his damages occasioned by the injury. This has been held to be the law in this State in repeated decisions of our Supreme Court, and, among other cases, in Bloomington v. Bay, 42 Ill. 503; Chicago v. Keefe, 114 Ill. 222. The rule so established is wise and salutary. Officers of municipal corporations organized and exercising corporate powers in this State, knowing this to be the law, will exercise greater vigilance in caring for and keeping in repair and safe condition streets and sidewalks, thereby decreasing the danger of accident and injury to persons using the same; and in this connection we deem it proper to dissipate an apprehension which the learned counsel for the appellant seem to entertain— that this court may so misunderstand the law as to hold a municipal corporation bound to construct and maintain its sidewalks in such condition as to insure the persons using them from accident. We do not understand or hold this to be the duty imposed upon appellant by the law. It is bound only to use reasonable care and diligence to keep its sidewalk in reasonably safe condition for the use of persons traveling thereon and our Supreme Court have held, in Chicago v. Keefe, supra, a child may be lawfully upon the sidewalk for pleasure—that is, for play—and the city owes the same duty to have the sidewalk in a reasonably safe state of repair in respect to it that it does in respect of those who are on the sidewalk passing to or returning from their places of business or abode. And while it is not the duty of the municipal corporation, in all cases where it raises its sidewalk above the adjacent ground, to guard each side with railing or other barriers to prevent pedestrians from accidentally falling off, and the omission to provide such protection is not always negligence per se creating liability, yet in cases analogous to the case at bar, where it is apparent that such protection is required to render the sidewalk reasonably safe for school children daily using the same, and to prevent the occurrence of an accident which is likely some time to happen if such protection is not furnished, it has been held to be gross negligence on the ¡Dart of the corporation to omit the duty to erect railings or other guards on the sides of the walk, adequate for the protection from the danger of falling therefrom, of persons traveling thereon and exercising ordinary care and caution. Joliet v. Verley, 35 Ill. 58; Chicago v. Gallagher, 44 Ill. 295; Springfield v. Le Claire, 49 Ill. 476; Sterling v. Thomas, 60 Ill. 264; Galesburg v. Higley, 61 Ill. 287; Chicago v. Langlass, 66 Ill. 361; City of Monmouth v. Sullivan, 8 Ill. App. 55.

On behalf of appellant, it is claimed the trial court erred in refusing to admit evidence offered on its behalf, thereby depriving it of the benefit of certain material facts necessary for the jury to know in order to fairly determine the question of appellant’s negligence. We find, upon a careful examination of the record, no error in this regard. It is further insisted the evidence does not establish the fact that the injury complained of was caused by a fall, but that bone erysipelas or scrofula brought about the injured, inflamed and diseased condition of the foot and ankle whereby appellee was disabled. On "this point two physicians who had examined the injury testified concerning it; one thought it was a scrofulous contusion; ” the other was quite as positive appellee exhibited no symptoms of erysipelas or scrofula, and that the injury was a contused wound, such as might be the result of a fall. The other testimony relied on to sustain this theory of appellant consisted of statements of appellee, his father and stepmother, touching the cause and character of the injury, as testified to by several witnesses. Appellee, his father and stepmother, denied having made some of these statements and explained others, but, as against the inference to be drawn from this testimony, a number of disinterested witnesses, as also appellee, his stepmother and father, testified that up to the time appellee claimed to have been pushed off the sidewalk he had not been injured in his foot or ankle, or complained of any injury to it, or of being lame. It was the province of the jury to determine from all the evidence the cause of the injury ? and in ascribing it to a fall they were sustained by the evidence. It is also insisted, inasmuch as no one but appellee testified to the fact that he was pushed off the sidewalk, and in this is not corroborated by the testimony of the two boys who were there at the time, one of whom, he says, was pushed against him, therefore the material fact that he was pushed off and fell from the sidewalk is not proven by a preponderance of the evidence. These witnesses were examined in the presence of the court and jury; their- manner of testifying, their conduct and demeanor while on the witness stand, was doubtless taken into consideration by the jury in determining the weight and credit to be given to the testimony of each witness; and upon examining the testimony of the two hoys we find it quite unsatisfactory; neither of them seems to have had a good memory, or to be able to recollect very distinctly any material fact; and we can not say the jury were not warranted in accepting and believing appellee’s version of the accident, and finding that he fell and was injured without fault or negligence on his part; that his injury was the combined result of an accident and the unsafe condition of appellant’s sidewalk caused by its negligence, and that the injury and consequent damage to appellee would not have been sustained but for the want of railing or other guards which, in the exercise of ordinary care and prudence, appellant ought to have provided for the protection and security of those using its sidewalk at the place of the accident In a case where it appears the injury is the combined result of accident and a defective or unsafe condition of the sidewalk, and the injury would not have been sustained but for the defect or unsafe condition, although the primary cause he a pure accident, yet, if the plaintiff is not guilty of fault or negligence, the corporation is liable and he can recover for the injury. Kelsey v. Glover, 15 Vermont, 708; Palmer v. Andover, 2 Cush. 600; Joliet v. Verlev, supra; City of Lacon v. Page, 48 Ill. 499; Bloomington v. Bay, 4, supra.

Applying the law to the facts as they appear in the record and as the jury evidently found them to be, plaintiff has established bis right to recover the judgment appealed from. We perceive no error in the refusal of the court to give the 2d and 8th instructions on behalf of appellant, or in modifying its 6th, 7th and 9th instructions before giving them to the jury, but are of opinion the jury were fully and fairly instructed as to the law. We find no reason to disturb the verdict of the jury, or for reversing the judgment, and affirm the same. Judgme?it affirmed.


source: Caselaw Access Project

author: Green, P. J.

license: Public Domain

text:
    The East St. Louis Packing and Provision Co. v. Barney McElroy.

      Master and Servant—Personal Injury—Contributory Negligence—Tools and Appliances—Sufficiency of—Special Finding.

    ). A master is bound to use reasonable care and prudence in providing suitable tools and appliances for the use of his servants.
    2. A master is not an insurer of the safely and security of his employes while engaged in the line of their duty.
    3. If a servant has knowledge of the defective and unsafe character of appliances which must be used in and about the work he is employed to perform, and persists in his work without objection, he is guilty of contributory negligence and can not recover for injuries sustained because of the use of such defective appliances.
    4. In an action brought by a servant to recover from his employer for injuries caused by ice jumping from an inclined slide, which is alleged to have been improperly constructed, this court holds, upon a review of the evidence, that the plaintiff was guilty of contributory negligence, and that the verdict for him should have been set aside.
    [Opinion filed January 10, 1889.]
    Appeal from the City Court of East St. Louis; the Hon. B. H. Oanby, Judge, presiding.
    Mr. M. Willaed, for appellant.
    It is held in this State that when an employe has an opportunity to make himself acquainted with the risks of the service and fails to do so, it is such negligence as will prevent a recovery, and consequently, in a ease where he has such knowledge, the reason for holding he can not maintain a suit is much stronger. The fact is, there were no dangers except such as the plaintiff was bound to see. He could not avoid knowing that the ice came down the skids with some degree of force, and that it was necessary to keep out of the way- and also that it did not come regularly. Hence, on cross-examination, the plaintiff was compelled to admit that he did not discover any new danger in the work, neither while engaged in the service nor after he got hurt. He knew every peril and risk before, and for the very good reason that all the dangers were obvious to an ordinary understanding. If he did not realize that he must have been stupid indeed; but he perceived the risks of the service, and the case is one where the employe, knowing every peril, carelessly exposes himself and is injured through his own fault. To sum it up, the situation was one without a lurking danger and where the servant says he knew all the risks, and that there can be no recovery in such a case is too well settled for legal discussion.
    Under this head the following cases will suffice: Simmon’s Adm’r v. C. & T. R., 110 Ill. 340; C. & E. R. v. Geary, 110 Ill. 383; Penn. Co. v. Lynch, 90 Ill. 333; St. L. & S. E. R. v. Britz, 72 Ill. 256.
    The rule here announced is, that if the servant has an opportunity to make himself acquainted with the risks of his service, but fails to do so, and is injured in consequence, or if he voluntarily assumes a peril known to him and is injured, he can not recover.
    Messrs. R. A. Halbert and Flauktgeh & Rafter, for appellee.
    It is a rule of law that the master, whether a natural person or a corporate body, is under obligation not to expose his servant, when conducting the master’s business, to perils or hazards against which he may be guarded by proper diligence upon the part of the master, and to that end the master is bound to observe all the care which prudence and the exigencies of the case or the situation require in providing the servant with machinery or other instrumentalities adequately safe for the use of the latter. And this, of course, includes a safe place in which the servant is to do the master’s work. Wharton on Negligence, Sec. 211 and others; Whitaker’s Smith on Neg., 125 et seq.; Wood, Master and Servant, Sec. 329 et seq.; 2 Thompson on Negligence, p. 972, and note.
    This rule is announced in the Swett case, 45 Ill. 197, and in every case in our State where the question has since arisen.

      We know of no case where the questions involved in the case at bar have been so fully discussed upon authority and principle as that of Indiana Car Co. v. Parker, 100 Ind. 181. The law is, that the servant may continue the service, even if he know of defects, unless they be such as necessarily and inevitably expose him to injury. Snow v. Housatonic R. R. Co., 8 Allen, 450.
   Green, P. J.

This suit was brought by appellee to recover damages for personal injuries alleged to have resulted from the negligence of appellant. The jury, by its verdict, found defendant guilty, and assessed plaintiff’s damages at §1,999.89, the full amount claimed, and also found, in response to questions asked by defendant in writing, as follows:

“1st. Was the skidway or slide safe and sufficient? Ans. It was'not.
“2d. Did the plaintiff know what kind of conveyor the skid was, and the condition it was in? Ans. He did not.”

Judgment was entered on the verdict, to reverse which defendant took this appeal.- It is averred-in the declaration that plaintiff, while employed as a laborer by defendant, and in the performance of his duty as such, by the direction of defendant’s officers and servants, in storing ice in the cooler of defendant’s ice house, was required to stand at the lower end of a conveyancer slide for the purpose of receiving and removing into the cooler the ice coming down said slide; avers duty of defendant to exercise care and prudence in providing good, safe and proper slides for conveying ice to the point where plaintiff should receive it, so that ice should not run off .said slide before reaching said point; avers defendant neglected this duty, and negligently and carelessly failed to provide a good, safe and proper slide sufficient to conduct said ice safely to said point, all which defendant knew or might have known by the exercise of reasonable care; and while plaintiff was standing alongside of said conveyor slide, and in the exercise of due care on his part, and without knowledge of ‘the insufficiency of said slide, a large piece of ice, on account of such insufficiency, ran off the slide, struck plaintiff, and thereby he received the injuries complained of. It appears, from the evidence, the cooling room in defendant’s packing house was supplied with ice from an upper story by means of an incline or skid twenty-four inches wide, with sides about three inches high, down which the ice slid with considerable velocity for a distance of about fifty feet to a door at the end of a hallway, from which point through the center of the hall on the floor extended an oak plank runway, or slide, with angle iron on each edge of the plank about an inch high, and along and on this structure the ice coming down the incline slid some distance, and was received and pushed along the hallway by men on the side of the runway to openings where other men received and dropped it through to the cooling room below. The ice did not come down the incline regularly and continuously, but sometimes a number of pieces would be slid down in rapid succession; then an interval of some minutes would elapse before any more came down, and when necessary to give men at the cooling room time to clear away the ice accumulating there, word was sent by men in the hallway to those above to suspend supplying ice for a time. Sometimes, when ice became blocked on the runway, a piece would jump off the slide, and under such circumstances if the piece did not fall entirely off, but a portion remained on the slide, sometimes another piece coming down and striking it would jump off.

Ice coming down the incline could be seen all the way down by those working in the hallway, and they could readily hear it coming as it descended. The negligence alleged and claimed to have caused the injury, was the failure to provide this runway with sides of sufficient height to prevent ice from jumping off -when sliding along with the speed acquired in its descent; but it also appears these same structures had been in use there, and had been operated in the same way by employes for a number of years; yet, until plaintiff was hurt, no accident had occurred and no one working there had been injured. At the time plaintiff was hurt this runway was in good condition and repair; all the witnesses testifying on this point, except plaintiff, concur in saying it was sufficient and safe and that there was no danger to one working in that hallway, pushing ice, if he used reasonable care to look or listen for the ice coming down; plaintiff had been at work in the packing house, off and on, as he expressed it, for about eight years. He admits he had seen the incline and men working there, and ice going down many times, and had passed by this runway in the hall, and had seen men at work there many times. By other testimony, also, it appears he was quite familiar with these structures and the manner of using them. On the Friday and Saturday next preceding the day he was hurt, plaintiff worked on the upper floor pushing ice, and worked on Sunday two hours in the hallway. On Monday morning he went there again, and about half past seven o’clock met Jones, who had charge of the cooling department, who asked him to go down in the cooling room and pull ice away from the' hole and keep it from getting blocked; but plaintiff said he would sooner go home than go down there; that he was subject to rheumatism. J ones replied, “ That is a better place for you; you are accustomed to work down there, and the other men are not acquainted with it; ” but plaintiff said he would go home sooner than go down there. Jones then said, “ Stay there then.” Plaintiff then voluntarily took his position near the foot of the incline in the hallway, and about an hour after a piece of ice jumped off the slide. He went across to start it along toward the opening, with his back to the incline, and while in this position and pushing this piece of ice with an ice hook, as he testifies, another piece of ice jumped off behind him, struck him and caused the injury complained of. He also testifies he did not discover anything about this ice slide while working there he had not known before.

In the view we take of this case it would be superfluous to comment upon the question of plaintiff’s contributory negligence, or the amount of damages allowed; and the contention on behalf of appellee is correct, that the master is required to use reasonable care and prudence in providing the servant with safe and suitable appliances and instrumentalities to use in the work he is employed to do. This is the primary duty of the master, imposed upon him by the law. The master is not, however, an insurer of the safety and security of the servant while performing the work, and the latter may, by his own acts, absolve the master from all liability to him for injury lesulting from the use of defective and unsafe instrumentalities provided by the master. If the servant has knowledge of the unsafe and defective character of appliances that must be used in and about the work he is employed to perforin, and with'this knowledge and without objection, persists in doing such work, and thus voluntarily exposes himself to extra peril, and is injured by reason of the use of such defective appliances, he can not recover for such injury. This rule, applied to the facts in the record, precludes plaintiff from the right to recover. By his admission and other testimony it appears he knew all about the work he was required to do, and the character, as to safety and sufficiency, óf the structure claimed to have been unsafe. He must have known by observation the ice came down the incline with velocity and force and at irregular intervals, and that men employed, as he was, in the hallway, were exposed to accident, if careless. In short, it is quite apparent he knew the peril and hazard incident to the work he was performing, and with this knowledge chose to do this work rather than other work which he was accustomed to, there offered him by Jones. Under this state of facts plaintiff had no right of action against defendant. Simmons v. C. & T. R., 110 Ill. 340; C. & E. R. v. Geary, 110 Ill. 383; Penn Co. v. Lynch, 90 Ill. 333; St. L. & S. E. R. v. Britz, 72 Ill. 250.

The special finding of the jury in answer to the second question was not supported by the evidence, and the general verdict also was wrong and should have been set aside.

The judgment is reversed, and we find no reason for remanding the cause.

Judgment reversed.


author: (trees', P. J.

text:
    Gena Lancaster v. Ida M. Lancaster.

      Divorce—Support of Child—Failure to pay Installments—Action of Debt—Pleading—Improper Defense.

    1. Where the diversion of installments for the support of a child, payable under a decree of divorce, can alone excuse further payment, the refusal of the mother to permit the father to see the child is no defense to an action of debt to recover unpaid installments.
    2. Non-assumpsit is an improper plea in an action of debt.
    [Opinion filed January 10, 1888.]
    Appeal from the City Court of Alton; the Hon. James E. Dunnegan, Judge, presiding.
    Messrs. J. J. Brenholt, W. H. Bennett and W. C. Marshall, for appellants.
    The third instruction is simply to the effect that plaintiff could not recover if she had prevented defendant from seeing his child. The instruction given was, that she could not recover unless she had complied with the decree, and this instruction only applies the general principle involved in the first instruction to the particular violation of the terms of the decree, especially pleaded in this case, and which was the sole defense. It can not be said that the giving of that instruction covered the point involved in the third instruction refused. If the third instruction had been given, and that given had been refused, there could have been no error complained of; but the converse is not true. We had the right to have the court instruct the jury specifically, one way or the other, on the issues joined, and an instruction which deals only in general principles of law, without applying those general principles to the particular facts in issue, is not sufficient. May v. Tallman, 20 Ill. 443; Roth v. Smith, 54 Ill. 431; G. & C. U. R. R. Co. v. Jacobs, 20 Ill. 478; Co. Court of Calhoun Co. v. Buck, 27 Ill. 440; Cummings v. McKinney, 4 Scam. 58.
    Mr. M. Millard, for appellee.
    The pleas really did not present a material issue, and there was nothing to try. The plea of non-assumpsit has no place in our action of debt, and the special plea alleged nothing that can be regarded as a defense. The reliance seemed to be on the fact that the defendant was denied the right to see his child by its grandmother. But the decree required the defendant to pay the money for the sole benefit of the child, and the plaintiff had nothing to do with it except to co'lect it and expend it for the child’s support. It was made payable to her, it is true, hut it was expressly decreed that the money should not he diverted from the child’s maintenance, and was entirely for its benefit.
    The decree was a judgment that the defendant pay the money, and there was only one condition that could relieve him from the oh'igation, viz.: in case the allowance was diverted the payment should cease. The right to recover the money, therefore, was not made to depend upon the condition that he should see the child, but upon the condition that the allowance should not he diverted from its support. And as the decree made this the only condition, and it was entered by agreement of the parties, it is now out of the power of the defendant to place his refusal to pay the money on some other ground. Besides, how can the child lose the benefit of this provision in the decree by reason of anything its mother or grandmother may do?
   (trees', P. J.

This was an action in debt brought by appellee to recover from appellant monthly installments which, by a decree in divorce proceedings between said parties, were ordered to be paid by appellant to appellee for the support of their infant child, the care and custody of which was decreed to appellee. The pleas interposed and relied on as a defense were non-assumpsit, and a special plea setting up the terms of the decree, and averring that about February 1, 1885, plaintiff refused to allow him to see his child, at her house, as provided by said decree, and has ever since persisted in such refusal, and has thereby violated the terms of the decree, and her right to demand said money has wholly failed and lapsed.

Neither of those pleas presented a material triable issue. JJon-assumpsit is not a proper plea in an action of debt. Harlow v. Boswell, 15 Ill. 56.

And nothing in the special plea averred amounted to a legal defense.

The only condition in the decree relieving the defendant from the payment of these monthly installments was, that if the said installment, or any part thereof, should thereafter at anytime be diverted from the maintenance of said child, the said allowance should cease. It was proven and not disputed, that defendant had refused to pay, or provide means for the payment of the monthly installments to plaintiff, for a period of thirty-three months, which, at §30 per month, the sum fixed by the decree, amounted to §990. ' The decree was also read in evidence, which, with the other proof, established appellee’s legal right to demand and recover of appellant said sum last above mentioned; and as we view the case, this legal right was not defeated by any sufficient defense, set up by plea or established by proof. Entertaining this view, we deem it unnecessary to comment upon the rulings of the trial court in admitting the evidence objected to by appellant, and refusing to give the instructions requested on his behalf. The jury returned a verdict for §990, in favor of plaintiff, and we think the verdict was warranted by the proof, and the court did not err in entering judgment for plaintiff thereon, or in striking the plea in abatement from the files; it was not filed inapt time. Mills v. Bland’s Ex., 76 Ill. 381.

The judgment is affirmed.

Judgment affirmed.


text:
    Rockford Insurance Company v. Andrew Seyferth.

      Fire Insurance—Application—Agent—Title—Proof of Loss—Failure to Make—Eo,deuce—Instructions—Pleading.

    1. An agent of an insurance company who fills out an application with knowledge of the condition of the title to the property in question, in the absence of collusion, binds the company in accordance with the contents thereof.
    2. The duty of a claimant under a fire insurance policy to make out and deliver a proof of loss, must be performed, unless waived by the company.
    3. In an ac’ion to recover for loss under a policy of fire insurance, this court holgls that the failure of the assured to make proof of loss, there having been no waiver by the defendant, requires a reversal of the judgment for the plaintiff.
    [Opinion filed January 10, 1889.]
    Appeal from the Circuit Court of Jackson County; the Hon. Biohard S. Tuthill, Judge, presiding.
    Messrs. Marshall & Taggart, for appellant.
    The insurance policy sued upon is set out in full in the declaration as well as given in the evidence. This policy requires proof of loss to he made. There is no evidence in the record tending to show that any such proof was made, or in any manner to show its waiver. For this cause the judgment should be reversed, there not being sufficient evidence to sustain the verdict. The making of proofs of loss is a condition precedent. Blakely v. Phœnix Ins. Co., 20 Wis. 217; 2 Wood on Fire Ins. (2d Ed.), 927.
    All the cases on waiver of proofs and waiver of defects therein are really to the same effect. The case at bar is one where the general issue alone, not only puts the plaintiff to the proof of his whole case, but also lets in many defenses. Western Assurance Co. v. Mason, 5 Ill. App. 141; Thomas v. Fame Ins. Co., 108 Ill. 91; Lycoming Fire Insurance Co. v. Rubens, 79 Ill. 403.
    In the second and last of these cases it appears that the general issue was the only plea; in the second, from the dissenting opinion, and in the last from the top of page 403. See, also, as to general doctrine, Warner v. Crane, 20 Ill. 148.
    A warranty must be strictly and literally true, whether material to risk or not. Ripley v. Ætna Ins. Co., 30 N. Y. 157; Miller v. Mut. Ben. Ins. Co., 31 Iowa, 226, 227; Planters’ Ins. Co. v. Myers, 55 Miss. 479.
    Mr. Geokge W. Smith, for appellee.
    Where insurance is procured to be taken by a person' who is in fact acting as the agent of the company, declarations and explanations made by the assured to such agent, concerning the character of the ownership of the property, will be notice to the company. Union Ins. Co. v. Cripps, 93 Ill. 96.
    Where a person, not versed in legal terms, when applied to by an agent of an insurance company to take a policy of insurance, states the facts relating- to the title to the property issued, and the agent writes in the application that the title is fee simple, when it is not, such misstatement of title in the application will not preclude a recovery. Rockford Ins. Co. v. Nelson, 75 Ill. 548.
    The nature and condition of the title of Seyferth was fully made known to appellant’s agent, who took the application, and a recovery on the policy can not be defeated on the ground that the character of the title was not correctly stated. Phœnix Ins. Co. v. Tucker, 92 Ill. 64; Germania Fire Ins. Co. v. McKee, 94 Ill. 494; Andes Ins. Co. v. Fish, 71 Ill. 620; Union Ins. Co. v. Cripps, 93 Ill. 96; Mass. M. L. Ins. Co. v. Robinson, 98 Ill. 324.
   Green, P. J.

This suit was brought by appellee to recover the value of property insured by appellant, which was destroyed by fire. The jury found for appellee and returned a verdict assessing his damages at $1,000. The court entered judgment for appellee on the verdict, to reverse which appellant took this appeal.

We think the evidence justified the jury in finding plaintiff below had an insurable interest in the property insured, and that the loss was not over-estimated by them. The point made by appellant, that in the answer to questions contained in the written application, appellee untruthfully stated he was the owner in fee. and no other person was in tere ted in the property insured or the real estate on which the same was situated, and hence there was a breach of warranty as to title which would avoid the policy, is not tenable under the evidence, which shows all the written parts of the application for insurance were filled in by the agent of appellant, who was at the time fully informed of the true character of appellee’s title and interest in the property insured, and the real estate on which the same stood. The agent, with this information, chose to describe the title of appellee as “ fee simple.” Notice to the agent was notice to the company, and it is bound by his acts, no fraudulent collusion between the agent and insured appearing. Where the agent makes out an application for insurance with knowledge of the facts, the conrpany will be bound. Rockford Ins. Co. v. Nelson, 65 Ill. 415; Eclectic Life Ins. Co. v. Fahrenkrug, 68 Ill. 463; Andes Ins. Co. v. Fish, 71 Ill. 623; Lycoming Ins. Co. v. Jackson, 83 Ill. 302; Union Ins. Co. v. Chipp, 93 Ill. 96.

The first instruction given on behalf of plaintiff is erroneous. It calls for a finding for plaintiff upon a state of fact not sufficient in and of itself to justify such finding. But the fatal error appearing, which necessitates the reversal of this judgment, is that no proof of loss is shown to have been made by the assured, as required by the terms of the policy, and no waiver of the performance of this condition by the company appears. The declaration avers the material fact that the proof of loss was so made by appellee, and the general issue pleaded to the declaration traverses this material averment. It is nowhere shown by the record that appellant refused to pay the loss for some other reason than the failure of appellant to make proof thereof, as required by the terms of the policy, and thereby waived the making of such proof, or that the defense was limited to some other ground; but, under the general issue, appellant lias the right to require all the material averments in the declaration to be proven before a verdict against it can be sustained, and a judgment thereon affirmed.

The duty to make out and deliver proof of loss must be performed unless waived. Winnesheik Ins. Co. v. Schueller, 60 Ill. 462. Even where proof of loss was not furnished the insurer in a reasonable time, such delay was held sufficient to bar the action. Scammon v. Germania Ins. Co., 101 Ill. 621. Appellant has also cited cases in his brief where courts of last resort in other States hold the rule in regard to proof of loss to be as in this opinion announced.

For the errors mentioned, the judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


author: Greer, P. J.

text:
    George Schwartz v. Lora A. Schwartz.

      Husband and Wife — Separate Maintenance—Seduction — Breach of Promise of Marriage — Duress■—Instructions—Ratification — Issues of fact.

    1. Upon a bill for separate maintenance and a cross-bill to have the alleged marriage declared fraudulent and void, it is held: that the evidence failed to establish duress of imprisonment; that after the marriage the defendant ratified and approved his act; and that the allowance to the complainant of $300 per year for the support of herself and child is not excessive.
    2. To sustain the defense of duress of imprisonment it must appear that the defendant’s action was influenced by the restraint. The question whether he was coerced or acted willingly is one of fact, and the conclusion of coercion from the fact of unlawful restraint is not a necessary and unavoidable one.
    3. The validity of a marriage entered into after the arrest, illegal or otherwise, of a person accused of seduction under promise of marriage, is not affected by such arrest so far as the wife is concerned, she being ignorant thereof.

      [Opinion filed January 10, 1889.]
    In error to the Circuit Court of Jackson County; the Hon. Eighabd S. Tuthill, Judge, presiding.
    Defendant in error filed her bill for separate maintenance and other relief against plaintiff in error, in the court below. An answer denying the material allegations in the bill was filed by him, and also a cross-bill against defendant in error, which she answrered, denying the material allegations therein. Issues were made up, among others an issue of fact, which was submitted to a jury. A hearing was had on the pleadings, proof and verdict of the jury, and the court entered a decree for defendant in error, on her bill against plaintiff in error, granting the relief prayed for, and dismissed his cross-bill, and this writ of error was sued out by him to reverse said decree. • In substance it is alleged in the bill of defendant in error that she was lawfully married to plaintiff in error on June 19, 1886, at Anaconda, Montana, in accordance with, and in consummation of an engagement contracted more than a year before between them; that upon the faith of his promise to marry her, he had before said marriage seduced her, and at that time she was pregnant, and he then and before the marriage knew that fact, and expressed himself as well satisfied with his marriage to complainant and freely and voluntarily returned with her and her father to their common residence in Carbondale, arriving there June 24, 1886, being both received and welcomed by the parents and relations of complainant, and on the day following their arrival she gave birth to a male child begotten by defendant, George Schwartz, previous to their marriage; that he, by the influence of his mother and brother, left and abandoned her in her travail, and departed from her, and left her without means of her own for the support of herself or their child, and she is living separate and apart from her said husband without her fault, and he has failed to provide or furnish her with any means; that he owns real estate in Jackson county, Illinois, and bonds and other securities in amount about $3,000. The bill prays for separate maintenance, etc. The answer of plaintiff in error denies that he was ever legally married to complainant, or was engaged to or agreed to marry her, or seduced her as alleged; alleges if she was with child, he is not the father; denies he expressed himself as well satisfied with her, or that he freely and voluntarily returned with them to their common residence; denies he was induced to leave her by the influence of his mother and brother; denies he is under any legal obligation to live with, or provide for complainant; admits he is possessed of the real estate as alleged, denies he owns $3,000 in bonds or other securities, etc. To this answer complainant filed general replication. After formal allegations the cross-bill alleges substantially, that Lora A. Schwartz is not the wife of complainant, nor was he legally married to her, but said marriage was procured by fraud and circumvention, compulsion and duress, and was entered into against his will and without his consent; that on the 19th of June, 1886, he was arrested by one Hatton, in Anaconda, Montana; that said officer said he would take him before another officer to give bail but instead took him to the hotel, and into the presence of defendant, her father, officer Fitzpatrick and one Melvin, and that, still being under arrest, the father of defendant demanded that he marry his daughter oi-go to jail; that being intimidated and under arrest he had to submit to said demand, and said Fitzpatrick pretended to or did perform the marriage ceremony. By amendment to said cross-bill, it is alleged said arrest was procured by complainant^ and her father acting as her agent, and upon void process, and for the express purposes of compelling complainant to marry defendant; that said writ was not a bastardy warrant, as he was informed by said officers,but a writ from Illinois to arrest him as a fugitive from justice; that after the pretended marriage ceremony the father compelled complainant to return with him and defendant to Illinois; that the next day after they returned he got away and went back to Montana; that at said time of pretended marriage complainant was deprived of his liberty, and was not in a condition to voluntarily assent to said marriage vow, but to keep out of prison and avoid the indignity and threats of imprisonment of said father, and officers in his employ, was forced to go through the forms of said ceremony, etc. Prays said supposed marriage be declared fraudulent and void, etc. To this cross-bill defendant filed answer denying the fraud or compulsion alleged, and alleging said marriage was voluntary, etc. .The complainant filed general replication. The following issues of fact at the request of plaintiff in error were submitted to the jury by the court:
    1st. Whether or not the complainant, Lora A. Schwartz, was at the commencement of this suit the wife of George Schwartz.
    2d. Whether or not there was duress in procuring the performance of the marriage ceremony alleged by complainant.
    The jury by their verdict found that Lora. A. Schwartz was at the commencement of the suit the wife of George Schwartz, and that there was no duress in procuring the performance of the marriage ceremony alleged by complainant.
    Messrs. Hill & Mártir and E. J. MoELVAiR,.for plaintiff in error.
    Messrs. Geo. W. Smith and Johh Herbert, for defendant in error.
   Greer, P. J.

The allegations in the original bill that there was an engagement to marry existing in 1885 between complainant and defendant, George Schwartz—that he had carnal intercourse with her, and that she had a child begotten by him—are sufficiently shown, we think, by the evidence. He denies the engagement to marry, but the testimony of complainant that he did promise to marry her and touching his conduct toward her, the testimony of her father, showing the conduct and apparent mutual affection existing between the parties for so long a time, and the letter of defendant to complainant dated Elkville, Illinois, December 2, 1885, beginning “ My dear little intended,” overcome his denial. He does not in his testimony deny having had sexual intercourse with complainant, but denies he seduced her under promise of marriage, and testified that from what she told him, and from what he knew, she was given to sexual intercourse many months before the time she said he seduced her under promise of marriage; that she kept company with other boys before the time he left, in April, 1886. He does not testify the child of which complainant was delivered was not his child, or was not begotten by him. She testified it was his child, that he was' the father of it, and that she had carnal intercourse with no person other than George Schwartz, and that he seduced her under a promise of marriage. Waiving the question whether her seduction was so accomplished, or resulted from the solicitation of her lover unaided by the inducement that if she yielded to his importunity he would marry her, we have no doubt, from the whole evidence, that on the 14th day of June, 1886, when complainant and her father left Garbondale in search of defendant, the latter was under engagement with her to marry her; that she was then pregnant with child begotten by defendant; that up to that time she believed he would return from his trip to California and marry her, as he had promised to do; but learning, through her father, that a companion of defendant, who accompanied him to California, had returned and reported defendant had stopped off and declined to return, she determined to go to Anaconda, at which place she had reason to believe defendant was visiting his cousin, and believing when she met defendant there he would fulfill his promise and marry her, and the father, learning from her this intention, offered to accompany her.

The defense of duress is supported solely by the testimony of the defendant, George Schwartz, whose deposition was read in evidence and who was not subjected to cross-examination. He testifies that on June 19, 1886, at Anaconda, Montana, an officer named Hatton came to his room where he was lying on a bed, near noon, shook him, asked if his name was Schwartz, being told it was, showed a picture, and asked: “ Is that your picture?” and being told it was, Hatton then arrested him, pretending to read from a paper purporting to be a wrarrant from Illinois for the arrest of Schwartz as a fugitive from justice from Illinois, for seduction; then took Schwartz through the public streets and to the hotel, saying: “The judge is upstairs; we will go up and see if he won’t give you bail;” that Hatton took him upstairs to a room where Lora, her father, Fitzpatrick, and Melvin were; that he was scared, fearing he would be put in jail; and Walker, taking him by the hand with fierceness, asked: “Are you ready to fulfill your promise to Lora?” He was overcome by the surprise, fright and fear, and being under arrest, presumes he said yes; could not help himself; was bound to do what he did. Something was done there—had no realization of marriage ceremony; did not willingly submit to any; all he submitted to was from scare and fear that Walker would do violence to him; that he did not know Lora and her father were in Anaconda until he met them there; that after the men left the room, Walker proposed to get ready and start home, but he said he did not want to go and did not have money to go. Walker told him to get his trunk and be at the depot for afternoon train; he had no way to escape and took his trunk to depot. Walker bought ticket, got trunk checked and kept check; that he went to Carbondale because he could see no way to get around what Walker ordered him to do, and as soon as he got to Carbondale and got his liberty he left on first chance, next day, and came back to Anaconda; that he did not tell Walker he would have married Lora before he left home if it had not been for his folks; that there was no arrangement made between him and Lora to be married on the day after he left Carbondale first time," and he did not tell Walker he was glad they were coming, and that he could have gotten away if he had wanted to.

Complainant and her father by their testimony contradict Schwartz in the most important and essential particulars. Her marriage certificate was properly admitted in evidence, and showed that M. J. Fitzpatrick, a justice of the peace of Deer Lodge county, Territory of Montana, did on June 19, 1886, join in lawful wedlock George Schwartz and Lora A. Walker with their mutual consent, in the presence of Frank Hatton and EL S. Melvin, witnesses, and on it is indorsed: “ Filed for record, June 21, 1886, at 2 o’clock p. m. W. F. Shanly, County Recorderalso recorder’s certificate of filing and recording same. The complainant, as to the marriage and circumstances connected with it, testified she was married to Schwartz at Anaconda on the date, by the justice, and in presence of the witnesses as shown by her marriage certificate; that after the marriage Schwartz returned to Carbondale with her and her father to her home, remained until next morning, then visited his mother and returned; then, at four o’clock p. m., again left and did not again return. That her husband after the marriage expressed himself perfectly satisfied and said he had intended to come home the last of the month and live with her, and while on their way home treated her as well as any one could, and did everything to make her comfortable.

On cross-examination she testified, she and her father arrived at Anaconda about 10 a. m. and left 4 p.m.; that defendant did not send for her to meet him there; went at her own instance; that her father employed Fitzpatrick to perform the ceremony before they had seen defendant there, and she knew defendant was at Anaconda, because he had told her he intended to visit- his cousin Jeff there, and knew he would marry her if he was there; were married in hotel parlor; met Frank Hatton at depot; came with herself and father to hotel; don’t know what official position Hatton had, if any; he stayed at hotel only a short time; don’t know where he went; he did not say; understood from father he was going to get defendant to come and see her; did not know he took any papers for defendant’s arrest; it was about half past 11 a. m. when first met Fitzpatrick; father introduced him because he wanted him to perform the ceremoney; did not know at that time, any ceremony would be performed. Knew if defendant was there he would marry her because he had told her so; he did not tell her to come out there and he would marry her; knew they could not be married without a magistrate; was not informed Hatton was a constable or marshal out there;, he was employed by self and father to see if defendant was in Anaconda; saw Judge Melvin at hotel about 11 a. h.; he was to be one of the witnesses; did not know for what purpose her father sent for him; Hatton went for him. “Knew if George was there he would marry me because he said he would, and I consider him a man of his. word.” That she and her father started for Anaconda, June 14th; did not tell any one where they were going. George told her before he started on his trip, he was going to California and intended to visit his cousin Jeff before he came back to Carbondale.

Simeon Walker, father of complainant, on same points as complainant, testified, she and defendant were married in the hotel parlor at Anaconda, June 19, 1886, by Fitzpatrick, in presence of Hatton, Judge Melvin and himself, and about four hours after the marriage he started with Lora an.d her husband for Carbondale and arrived at his home there June 25th; that after the marriage defendant said lie had always intended to marry Lora and was well satisfied, and would have married her before he left had it not been for his folks, and said many other things and apologized so and began to say he was sorry he went away, and witness stopped him and said: George? all this is past and gone; you are now husband and wife; better never refer to the matter any more;” that he told George it would be better for them to go back home, settle down and outlive the past. George thought it better for them to stay out there and asked Lora what she thought. She thought they had better go home and he said, all right. This occurred in the parlor about half an hour after their marriage; defendant made no other objection against going to Carbondale. On the way home expressed himself to witness as entirely satisfied and felt better than he had since he left home. On arriving at witness’ home, George and wife were received and treated kindly and cordially. On the way home, and until the next day after he had visited his mother, defendant treated his wife most affectionately. That after Avitness had been informed of Lora’s admission to her mother of her condition, he waited until he learned from Purdy, avIio went with defendant and had returned from California, that George had not returned, and upon consultation with friends, took Lora and went in search of him, and found him at Anaconda; did thisfor the purpose of having him redeem his pledge of marriage with her; had him brought in presence of Lora and asked him: George, are you ready to redeem yottr pledge of marriage with Lora?” He answered, “lam,” and the justice proceeded to solemnize the rite of matrimony between them.

On cross-examination testified: The party George went with returned Sunday; that evening made up my mind to go; started Tuesday; did this on the basis of the duty of a father to protect his daughter. Purdy told me George started home with him, and at Ogden said he would stop there; had intended to go on home, but had got in a scrape at Carbon-dale and made up his mind not to go; that then, being told he ought to go home and do as he had promised, said he knew he ought, but could not very well under the circumstances; had reason to believe George was in Anaconda because his cousin lived there and had written from there to Lora, and defendant had told her he was going there, and told Purdy also. Lora believed all the time George would come back, but the circumstances led me to believe he would not, although he told us, after they were married, he intended to come back before his ticket ran out; told me after we got to Anaconda he received telegram the day or day after we started, to look out, the old man and his daughter were coming, and had plenty of time to get away if he wanted to, but was glad we were coming. On arriving at Anaconda the conductor got us into ladies’ parlor, at depot, and sent Hatton in. I told him to get us into hotel without being seen, and then to get me the best lawyer there. He brought Judge Melvin, to whom I stated our case, and asked what course I should pursue; he advised me, and I acted on his advice; did not want to be seen because circumstances led me to believe defendant might possibly get away; did not believe he would; got officer on my arrival that I might do all I did legally; thought he would more readily know and find the best lawyer. Judge Melvin sent for Esquire Fitzpatrick. I made complaint charging defendant with breach of promise and seduction before Fitzpatrick; got out paper for defendant— warrant—about an hour after we came to hotel. Hatton left hotel; don’t know where he went; in half an hour returned with George; while Hatton was absent I requested Fitzpatrick to remain for the purpose of performing the marriage ceremony, and Melvin also as a witness to it; paid Fitzpatrick $10, Hatton $15, Melvin $25, for their services. About one o’clock the day after we got home George told me he had seen and conversed with his mother.

On re-direct, and afterward on rebuttal, witness testified: About half an hour after Purdy told me George didnotintend to return I told Lora; she declared her intention of going to him, and I then told her I would take her to him. On his arrival at the hotel George was received in the kindliest manner, first by myself and then by Lora. I met him at the door, took him by the hand and spoke very kindly to him, after which Lora met him, shook hands with him and spoke very kindly to him. I then said, George, are you ready to redeem your promise of marriage with Lora?” He answered, “ I am.” There were no threats, nor menaces, nor cross words passed there, or at any place; there was no demand made in any way or for anything; as a matter of fact, there was never a cross word or threat of any kind whatever made by me to George at any time or place. I asked George if he desired to go back; he said he had no money to go home on; asked him if he could not borrow money; he said he could not; I bought a ticket; myunderstandingwas, he would pay it back when he got home. On the way home he came and sat down by me, pulled out a telegram, put his finger over the signature, and said, “ look at that.” It said, “ George, look out, the old man is coming.” After the marriage he said he wanted to go out, bring his cousin in and introduce him to his wife. I said, “certainly.” He went out, brought his cousin in and introduced him to Lora as his wife, and me as her father, all on the very best of terms, and we sat there talking quite a while. On the way home George and Lora occupied the same berth in the sleeping car, and when they got home occupied the same room. I had his trunk checked with Lora’s, turned round and handed him the check and said, “you can take the trunk to our house when yon get home.”

It thus appears from the record that up to the time defendant "in error was informed by her father that George Schwartz did not intend to come back, and had not returned with his companion on the trip, she relied upon his promise to return and marry her, and had full faith in his sincerity. Then for the first time she announced her intention to go to him, and her father told her he would take her. This purpose to take her to George and protect her, was a legal and laudable purpose. She was in a condition to require a father’s aid and protection during a long, sad journey. She was going among strangers, into a region strange and unfamiliar to her, thousands of miles away from her home, in a condition that would awaken sympathy in the.heart of the merest stranger, and for a father to permit her to depart in this condition, alone and unattended, upon the search for her intended husband, would have been conduct almost brutal. She evidently had no purpose to coerce or force defendant into a marriage with her, and knew of no such purpose on the part of her father, either when they started or after they reached their destination, so far as this record discloses; but,as she repeatedly testified, she knew when she met George he would marry her; he had promised to do so, and she believed him.

The father, it seems, acted in good faith and under legal advice in all he did. And if the jury believed his testimony and that of his daughter in preference to Schwartz’s testimony, they had ample proof upon which to base their verdict. We think the evidence falls far short of establishing the facts relied on to defeat the original bill and to sustain the cross-bill, viz., that the marriage was procured by duress, and George Schwartz became a party to it against his will and without his free consent.

In 2 Greenl. Ev., Sec. 301, it is said: “ Duress, in its most enlarged sense, is defined as that degree of severity, either threatened and impending or actually inflicted, which is sufficient to overcome the mind and will of a person of ordinary firmness.” “ The plea of duress of imprisonment is supported by any evidence that the party was unlawfully restrained of his liberty until he would execute the instrument.”

In 6 Am. & Eng. Encyclopedia of Law, 57, duress is defined thus: “ Duress exists where one, by the unlawful act of another, is induced to make a contract or perform some act under circumstances which deprive him of his free will.”

The Supreme Court of Michigan, in Feller v. Green, 26 Mich. 69, have said: “ To make out the defense of duress of imprisonment, it must appear that the party’s action has been influenced by the restraint; if he has only paid or secured a just debt while held in custody, the transaction is not to be avoided unless he did so because of the custody. The question is one of fact, whether he was coerced or acted willingly, and the conclusion of coercion is not a necessary and unavoidable one from the fact of unlawful restraint.” Taylor v. Cottrell, 16 Ill. 93; Ford v. Cratty, 52 Ill. 313.

We reach the same conclusions as the jury did, that the evidence failed to establish duress of imprisonment as alleged, or that threats, intimidation or fear of violence or imprisonment compelled or coerced plaintiff in error to marry defendant in error. If it be conceded Schwartz was arrested by virtue of a writ issued upon the complaint of Walker and unauthorized by the statute of Montana, yet it also appears Walker was acting in good faith in doing what he did, and was pursuing a legal remedy which he was advised to pursue by one represented to be, and by him believed to be, a competent lawyer.

It appears,also by the testimony introduced on behalf of defendant in error, the only step taken under said writ was bringing Schwartz into the presence of Lora; that the father vhen asked him if he was ready to marry her as he had promised, and he replied, “ I am,” and then married her, not by reason of being under restraint or coerced thereby, but because (as the jury had the right to infer from the evidence) he saw the woman he had promised to marry, saw her condition and desired to fulfill his promise. It seems to us, even if the arrest was unlawful, but the restraint of Schwartz thereunder did not influence his action, duress of imprisonment that would suffice to invalidate the marriage, is not thereby established. It also appears by the same testimony that after the marriage Schwartz ratified and approved his act, and never challenged its validity or denied his consent to it until his wife had filed her bill. It is also undisputed by any evidence that defendant in error was ignorant of the fact that a writ for the arrest of Schwartz had been issued, or that he was under arrest when he consented to and did marry her. Hence, so far as she was concerned, the validity of the marriage was not affected by such arrest. Bates v. Ball, 72 Ill. 108.

It was not error, in view of all the evidence and the great number and very favorable instructions given for defendant, to give the jury the instructions complained of, for the complainant, and the amount awarded for the maintenance of. herself and child was not too large. The decree is affirmed.

Decree affirmed.


author: Grreeu, P. J.

text:
    James Wilderman et al. v. William Pitts.

      Special Contract — Recovery for Sinking Well — Failure to Finish— Pleading—Instructions.

    1. There can be no recovery under the common counts in assumpsit of the contract price for sinking a well under a special contract, until such contract has been fully performed.
    2. Under a special contract to dig a well, no time being fixed within which to complete the work, it is the duty of the contractor to finish it within a reasonable time.
    [Opinion filed January 10, 1889.]
    Appeal from the County Court of St. Clair County; the Hon. John B. Hat, Judge, presiding.
    Messrs. J. M. Hamill and William Winkelmann, for appellants.
    Where a special contract has been fully performed, so that nothing remains to be done but to pay the contract price, the
      indebitatus count will lie, otherwise the count must be special on the contract. 1 Chitty’s Pl., *347, *349; Burnham v. Roberts, 70 Ill. 24; Clause v. Bullock Printing Co., 118 Ill. 612; Brand v. Henderson, 107 Ill. 141; Hosmer v. Wilson, 7 Mich. 294; 74 Am. Dec. 716.
    Unless a party contracting to do a particular work for so much money, as to dig and finish a well which shall furnish a given quantity of water, or build and complete a house according to given plans and specifications, and the contracting party fails to do so, iie can not recover either the contract price for his work or materials, unless the other party takes possession of the subject of contract and applies it to the uses for which it 'was constructed. Martus v. Houck, 31 Mich. 439; 33 Am. Rep. 409; Jones v. Dermott, 2 Wall. 1; School Trustees v. Bennett, 3 Dutch. 515.
    The giving of appellee’s first instruction was error, because it was not based on any state of case made by the evidence on either side, nor on any claim made by either plaintiff or defendant, and wholly ignored the terms of the contract as testified to by all the parties and witnesses, and was therefore manifestly misleading. Frantz v. Rose, 89 Ill. 590; Herrick v. Gary, 83 Ill. 85; Bradley v. Parks, 83 Ill. 169; Cushmann v. Cogswell, 86 Ill. 62; King v. Haley, 86 Ill. 106; C. & A. R. R. Co. v. Bragonier, 119 Ill. 51; City of Chicago v. Scholten, 75 Ill. 468; Hassett v. Johnson, 48 Ill. 68.
    Appellee’s third instruction is manifestly erroneous in that it assumes and finds as a fact that appellants refused to test the capacity of the well, when that question was sharply contested by the evidence in the case. Small v. Brainard, 44 Ill. 355; American Ins. Co. v. Crawford, 89 Ill. 62; Russell v. Minteer, 83 Ill. 150; Bradley v. Coolbaugh, 91 Ill. 148; Coon v. The People, 99 Ill. 368.
    Messrs. Turner & Holder, for appellees.
    It was not a controverted fact that the well was ever tested. It was admitted by all the parties that the well was never tested. Defendant James Wilderman testifies positively that the defendants had not tested the well.

      “ In a case where there is no conflict in the testimony, and no room to doubt or hesitate as to a matter of fact in issue, an instruction ought not to assume that it is or may be doubtful. To call upon the jury to decide whether an undisputed fact is or is not proven, is to mislead them by inducing them to suppose that they may find the fact either way, where the evidence warrants but one conclusion.” Hauk v. Brownell, 120 Ill. 161.
    Should the court think the instructions are to some extent erroneous, yet if all the instructions, considered as a whole, substantially present the law of the case fairly to the jury, and it appears that justice has been done, the judgment will be affirmed. Ritzman v. People, 110 Ill. 362; Stallings v. Board of Trustees, 6 Ill. App. 165.
    It is argued that the suit should have been special for breach of contract. The evidence shows that plaintiff fully performed his part of the contract, and the jury so found by their verdict. The true rule, as found in all books of authority, is this: If a party plaintiff prove a special agreement, and the work done'and used, but not pursuant to such agreement, he may recover upon the quantum meruit. Eggleston v. Buck, 24 Ill. 262; Holmes v. Stummel, 24 Ill. 370; Taylor v. Renn, 79 Ill. 186.
    “ When suit is brought upon a general indebitatus assumpsit, for work and labor, the defendant may defend by showing a special contract, and the plaintiff can not recover unless he shows that though the work was not done as by the contract, that it has been appropriated and enjoyed by the defendant, and in that case the special contract affords the rule for damages, so far as it can be traced and followed, less any amount the defendant may justly recover for injury, for nonperformance of the contract.” Holmes v. Stummel, 24 Ill. 370; Fowler v. Deakman, 84 Ill. 130.
    It was a question for the jury to determine from the evidence, whether the well was such as the contract called for, and if not, whether the defendants were usmg it, whether they were damaged for its not being up to the contract, and how much.
   Grreeu, P. J.

Appellee brought suit against appellants in the court below, and filed his declaration in assumpsit, containing common counts only. A plea of non-assumpsit was interposed. On this issue the cause was tried by a jury who found a verdict for plaintiff for $250. Defendant’s motion for a new trial was overruled. Judgment was entered on the verdict and this appeal was taken.

Plaintiff below claimed the right to recover under a contract with defendants that they should pay him $250 to finish for them a well that would furnish eight barrels of water a day for two days, defendants to help test the well.

The proof shows that plaintiff did not finish a well of that capacity, nor, in fact, finish a well at all; but when he quit work upon it, in August, 1885, at which time he made the only test ever made, sand would rise in the casing of the well, choke it up and prevent the flow of water, and this sand had to be removed before water could be drawn. In this condition the well was left by plaintiff, who took away his tools in September, 1885, in the meantime never coming back to resume work or make any further test of the capacity of. the well. He testified that no time was fixed for the completion of the work, and that in October, 1885, he saw one of the defendants and asked about testing the well, and lie said there was no hurry, and that in March, 1886, he took his tools to the place of defendants, as he testifies, to test the well, and defendants refused him permission, because they claimed his time was out. It nowhere appears plaintiff offered to complete this well, which, by his own admission and the testimony of other witnesses, was not in a condition to furnish water, but offered merely to test an unfinished well; nor wag any sufficient reason given by plaintiff why he did not, within a reasonable time, finish the well. This was his first duty, and to be performed within a reasonable time, if no specific time was fixed by the contract. Until he performed this condition he could not rightfully demand that the capacity should be tested. Ho impediment preventing him from completing the well existed, from the early part of August, 1885, up to some time in September, when he took his tools away to bore a web at the school house, nor from the time he finished there until the latter part of October; in short, plaintiff evinced no willingness, nor made any effort, within a reasonable time after making the contract, to finish a well as he had agreed. We shall not enlarge upon the fact that the well, as shown- by the only test made, had not the capacity required by the terms of the special contract, inasmuch as what has already been said,' renders further comment on the facts unnecessary.

It is only in a case where a special contract has been fully performed so that nothing remains to be done but to pay the contract price that a recoveiy of such contract price can bo had under the common counts in assumpsit. The contract between appellee and appellants was special. The proof shows appellee did not fully perform it on his part, and that the unfinished well was not accepted or used by appellants; hence, plaintiff was not entitled to recover under the decoration in this case. It was error, also, to give the first and third instructions given to the jury on behalf of plaintiff. They were calculated to mislead the jury and should have been modified or refused. The judgment of the County Court is reversed and cause remanded.

Reversed and rema/nded.