text:
    William L. James, Appellee, v. Motor Transit Management Company, Appellant.
    Gen. No. 8,486.
    Heard in this- court at the October term, 1930.
    Opinion filed January 26, 1931.
    Covet & Woods, for appellant.
    Harold F. Trapp, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

This is an action on the case in which the declaration consists of three counts in each of which it is alleged that plaintiff was in the exercise of due care in driving his car along the state highway known as Route 4 between the Village of Elkhart and the City of Lincoln, said highway having a concrete surface 18 feet wide with earth shoulders on either side thereof 6 feet in width. The negligence charged in the first count in substance is that on the 19th day of September, 1929, about 2 hours after sunset and at the hour of 9 o’clock the defendant negligently permitted a large motor bus or coach to remain on and across the east lane being the west half of said concrete surfaced roadway whereby the motor vehicle of the plaintiff collided with said motor bus resulting in injuries to the plaintiff. In the second count the negligence charged is that defendant stopped one of its motor buses in violation of the statute and allowed it to stand in such position that there was not ample room for two vehicles to pass upon the concrete highway. In the third count the negligence alleged is that the defendant allowed its bus to stand upon the concrete surface without having a light upon the rear end thereof and without giving any warning or notice of the position of said bus. The jury returned a verdict assessing plaintiff’s damages at the sum of $5,000.

The defendant’s line of motor buses is known as the Greyhound line. On the evening in question, William E. Perkins was the driver of the particular bus in question. It was a passenger bus running from St. Louis to Chicago on a second run, taking care of the overflow from the first run. The bus arrived at Elk-hart between 8 and 9 o’clock and started on its .way toward Lincoln. About two miles north of Elkhart the driver discovered that he was running out of gasoline. He turned the bus off the side of the road so that the two front wheels were completely off the concrete and he testified that only the left rear wheel was setting on the pavement, and the right front wheel and the right rear wheels were on the edge of the ditch running parallel with the shoulder. There were two green lig’hts on the front of the car and also two headlights and the sign light. On the rear of the car there were three green marker lights and one red tail light. In the motor bus were three passengers. After the bus stopped for want of gas, the driver got out, stopped a passing car going towards Elkhart and rode in it to the Standard Oil station which was the first one he came to where he procured 15 gallons of gasoline. William Byrne who ran the gasoline station took him back to the bus with the gasoline in a motor car. When they arrived at the bus they put in the gasoline and the driver tried to start the bus but could not do so. The two men then got into Byrne’s car and attempted to push the bus back on to the concrete but could not move it. Another man came by in a motor car and they again attempted to push the bus back onto the concrete using Byrne’s car and the other car. The dirt on the shoulders was wet and slippery and the efforts of the two cars were unsuccessful. The driver concluded that it would be necessary to procure a wrecking car to haul the bus back onto the pavement. He consequently went back to Elkhart with Byrne and procured the witness Donnelson to proceed to the bus with a wrecking car. When the driver of the bus and Donnelson arrived at the bus they found that the plaintiff’s car had run into the rear end of the bus and had become entangled therewith to such an extent that they had to attach the wrecking car to plaintiff’s car to pull it away from the bus. After this was done the wrecking car hauled the bus back onto the pavement and the driver started on his way toward Chicago. There is no dispute as to the above facts. The disputed facts are as to whether there were any lights on the motor bus when the collision occurred, the portion of the rear end of the motor bus on the pavement and the condition of the weather at the time of the accident.

William L. James, plaintiff, was 66 years old and lived in Lincoln with his sister. He started from Lin-coin about noon on the day in question for Springfield for the purpose of getting a bucket of tobacco for a man by the name of Sexton. He took with him the witness Richard Wilson. These two men spent most of the afternoon in Springfield and started back to Lincoln about 7 o’clock. He testified that it was a foggy, drizzly night and that he kept his windshield wiper in operation; that as he approached the bus he was driving about 25 miles an hour; that on account of the rain and the fog he could not see more than 30 feet ahead of his car notwithstanding that he had the full force of the headlights burning; that he did not see the bus until he was within thirty feet of it when he attempted to avoid a collision by turning to the left to go around it, and that he did not see any red light on the rear of the bus nor any lights that attracted his attention; that the bus was of a gray color with the picture of a greyhound on the side; that it was standing quartering or angling on the pavement, the left hind wheel was about eighteen inches from the black line and the two front wheels were clear over on the dirt; that his pelvic bone and breast bone were broken as was also his left wrist and he also had a cut on his right hand an inch and a half long between the two middle fingers; that he was taken to a hospital in Lincoln and attended to by a physician.

Richard Wilson testified that he rode to Springfield with the plaintiff and that on the return just before the collision the latter was driving about 25 miles per hour and that when they got within 30 feet of the bus, he said, “Mr. James, look out there for that bus”; that he didn’t see any lights on the bus; that from the instant he saw the bus until the collision occurred was about as quick as you can snap your fingers. He stated that after leaving Springfield that night he kept no lookout ahead and paid no attention to the road ahead but was looking out of the side of the car on the slab or pavement.

The witness Homer Leftwich lived in Elkhart but had been in Lincoln that day on business and was returning to Elkhart right after the accident. He testified that on approaching the motor bus from the south he first noticed it about 100 yeards ahead of him but didn’t observe any lights on the bus, if there were any they were little lights up above — little blue lights up high; that he thought the head lights of the bus were burning in front but never paid any attention as to whether there were any lights on the top of the bus in front; that he didn’t observe any light on the back of the bus; observed the bus 100 yards before they got to it; that the first thing that attracted his attention were the lights on the bus that were dim; made no examination as to any lights on the rear end.

T. W. McEoberts also resided in Lincoln. He in company with the witness Mrs. Judd left Lincoln about 8:30 that evening in their car to drive to Elkhart. He testified that as they approached Elkhart from the north he observed the bus when he was about 50 yards from it; that he didn’t know whether there was a head light or a parking light on the front of it and didn’t pay much attention to it; that he saw a light on the back of the bus across the top; saw it as he was going-south and also saw it as he came north after the accident; that after passing the bus he went on south about a mile and a half and turned around north of Elkhart and came back; that when they got back he found plaintiff’s car had run into the bus and there were 8 or 10 people getting them out; couldn’t say what kind of lights there were on the back of the bus but there were back lights on it; that there was a blue light on the top; thought there were two kinds of lights on the bus, either blue and red or white and red; there were little lights on top of the bus; doesn’t remember whether there was any light at the back of the bus where the stop light is, he didn’t look. On cross-examination he testified that he didn’t recall that it was raining; the windshield wiper was not in use; that his vision through the windshield was not obstructed in any way; that coming back he was about 100 yards south of the bus when he first noticed it; recalled that there were lights of two different colors showing on the rear of the bus but didn’t remember the colors exactly, they were either white and blue or white and red but there were two colors; that he saw lights on the front end of the bus as he approached it going south.

Mrs. Judd, who was in the car with the last witness, stated that when she first saw the bus she was 100 yards from it; that while passing it going south the front lights were burning and also different colored lights around the bus near the top and saw the lights around the top on the rear of the bus as they came back. On cross-examination she testified that she believed the lights were red and green and there were several of them; that she noticed these colored lights both as they came down and as they went back; that as they drove toward Elkhart and came back from the south it wasn’t raining at all that she could recall; that they were not using the windshield wiper on the car didn’t notice that it was misty or foggy; that she could see 100 yards ahead as they were going toward Elkhart and as they came back from Elkhart.

Haden Leftwich started from Elkhart in his coupe with a rumble seat and had with him his brother William, Albert Hartley and Thomas Stellar. William rode in the front seat with him, the other two boys rode in the rumble seat in the rear; that they started to Lincoln to get Haden’s father. He could remember very little in regard to the matter. He testified that as he approached the grade north of the concrete bridge he noticed a bus on the road. (There is no evidence of the location of this bridge nor how far it was from the bus.) He testified that he did not observe any lights upon the back of the bus nor how close the bus was to the center of the road; that he remained in Lincoln half an hour and drove back in his father’s car; that on the way back he saw the bus but observed no light as they approached it going south; didn’t remember of observing any light on the front of the bus; didn’t remember how close the left-hand corner of the bus stood to the black line; didn’t notice any light of any kind on the rear of the bus as he paid no attention toward seeing whether there were any lights on the bus or not; that as he came back toward Elkhart he had no judgment how far away he was when he fiirst saw the bus and paid no attention to the lights; paid no attention to the position of the bus on the road; paid no attention to where the wheels were, never looked; paid most attention to the scene of the wreck and to the people that were hurt and didn’t know whether there were any lights on the back of the bus at that time; didn’t remember whether he used any windshield wiper on his car; didn’t remember whether it was raining or not.

William Leftwich, a brother of the preceding witness, testified that as they drove into Lincoln it was misting; that he didn’t notice that it was raining at all; saw the bus on the hard road as they came to Lincoln; didn’t remember how close they were to it before he saw it; wasn’t paying any attention to it but saw a light on the back of the bus as they went past it going to Lincoln; didn’t remember seeing any other lights on the bus; that going back from Lincoln he was riding with his father who was driving the car and didn’t remember seeing any light in the bus nor any light on the rear of the bus; didn’t notice how far plaintiff’s car was to the middle of the slab; didn’t know whether the front wheels of the bus were on the slab or not. On cross-examination he testified that when they passed the bus going from Elkhart to Lincoln he noticed there were lights on the bus then along the rim; that the windshield on his car that time was closed and he observed this bus looking through the windshield; that on returning from Lincoln he observed the bus something like 25 or 30 yards away and saw it through the windshield which was closed.

Albert Hartley, one of the boys who rode in the rumble seat in Haden Leftwich’s car, stated that he never noticed the bus north of Elkhart until they went around it and didn’t observe any light on the rear of the bus and didn’t notice any on the front of the bus as he didn’t look back; that it was a little foggy and it sprinkled a little bit; that on his return from Lincoln going b,ack to Elkhart he saw the bus about 50 yards before he got to it and thought there were some green lights on the rear of the bus at that time near the top. On cross-examination he testified that he saw the bus as he came north from Elkhart through the closed windshield about 50 yards before "they got to it but never paid any attention to the question of lights on the bus.

Thomas Stellar, who was also sitting in the rumble seat going from Elkhart to Lincoln, testified that he noticed the bus but didn’t observe it particularly; that he didn’t remember whether there were any lights in the bus or not as they passed it going to Lincoln; that on the way back from Lincoln he rode in Haden Leftwich’s car; that as they passed the bus going south he didn’t remember whether there was a light there or not. On cross-examination he testified that as they came from Lincoln he could see the bus all right through the windshield which was closed and didn’t pay any attention as to whether there were lights there or not.

All the above witnesses were produced and testified for the plaintiff and it will be observed that every one of them with the exception of the plaintiff and his companion Wilson testified that they saw the bus from 30 to 100 yards away as they approached it or in ample time to pass around it and none of them testified that their vision was in any way obscured by rain, fog or mist. •

On behalf of the defendant, William E. Perkins, the driver of the bus, testified that after he discovered that his gasoline tank was empty he turned his car toward the shoulder and let it coast as far as it would go; that at the time he hailed the passing car to take him to Elkhart to get gasoline the two front headlight were burning as were also the sign light and three green marker lights in the back and a red tail light, also there were two green lights on the front of the car; that at that time there were three passengers in the car; that when the bus stopped the left hind wheel was about a foot and a half on the pavement or slab and the right rear wheel was over on the edge of the ditch just as it starts to go down; the left front wheel was right on the edge of the pavement and the right front wheel was over near the edge of the ditch; that after returning with Donneison and the wrecking car he noticed that plaintiff’s car had run into the back end of the bus and had skidded or pushed it farther out into the highway and that the tail light on the bus had been broken off. He further testified that in approaching the bus after obtaining the gasoline in Elkhart he could see it half a mile away.

William Byrne, the man who sold the gasoline to Perkins and who took him and the gasoline back to the bus, testified that on approaching the bus he could see the lights probably half a mile ahead; that when he got there the green lights on the top were burning and saw the headlights burning in front and that there were dimmers on the headlights; that the left rear wheel of the bus when he got there was a foot or a foot and a half on the slab, the right front wheel was partly in the ditch and the rear right wheel was sitting on the bank of the ditch and it was very soft; that Perkins tried to start the bus but was unsuccessful; that they then took his car and tried to push the bus forward in order to get the right front wheel out of the hole it was in but couldn’t move the bus; that another fellow came along and pulled up along side of his car and they both tried to push the bus but couldn’t do it; that they tried to push the bus from each end but didn’t succeed in moving it any; that Perkins afterwards told him he would have to get a truck and he and Perkins went back to Elkhart and got Donnelson and his gasoline truck; that as they came back he saw other headlights around there and thought something had happened; that on arriving he found that the Dodge car had run into the rear end of the bus but didn’t notice whether it had struck the tail light or not; that both the car and the bus were locked together so firmly that it took the truck to pull the Dodge loose; that Donnelson hooked on the back end of the Dodge with a chain and pulled it down the road and put it on the other side of the pavement about 100 yards south and left it there for the time being; that after the accident he didn’t pay much attention to the lights as he was busy directing traffic.

E. A. Donnelson testified that Byrne and the bus driver came for him to get him to pull the bus so it could be started; that as they drove north towards the bus he. first saw it about a quarter of a mile ahead; that when they got there the Dodge car was driven into the back of the bus; that several of them tried to push the Dodge car back but could not push it by hand; that he then pulled it away with his truck and left it on the opposite side of the road 100 or 150 yards back of the bus; that when they first came up to the scene of the accident he noticed the wheels of the bus and the front wheels were just off the concrete and the back left wheel was about a foot on the slab; the right front wheel was not on level ground and had dropped into a hole about six or eight inches deep and just off the edge of the shoulder just starting down the bank; that he didn’t notice particularly about the lights on the bus; that he pulled the bus back on the road with his truck.

Jasper Bethany, one of the passengers on the bus, testified that after the bus had run out of gasoline he got out of the bus with the driver and they found there was no gas in the tank; that he noticed the position of the bus at that time and the rear end of the bus was on the pavement about a foot and a half to two feet; the front edge of the bus was just on the edge of the pavement ; that the driver then went away to get gasoline; that they tried to start the bus and couldn’t and another man came along and both cars tried pushing but didn’t succeed in starting the bus; that they then went back for a truck and while he was gone the accident happened; that while he was sitting in the bus he noticed many motor vehicles passing by; that the collision jarred the bus and moved it around about a foot towards the pavement; that after the collision he noticed three green lights burning on the back of the bus; it was blowing but it wasn’t raining; it wasn’t very foggy.

Beatrice Heiskell, another passenger on the bus, after detailing the events up to the time the driver went back to Elkhart to procure the wrecking car, testified that after he left she got out of the bus and went to the back end and saw the three green lights and the red tail light burning; that at the time of the collision it was misting a little bit; that she was able to-see cars up and down the road for a half a mile; that the collision caused a terrible jar and swung the car over on to the pavement in a westerly direction; that when she got out of the bus she noticed that the two wheels to the west were on the pavement and the rear left wheel was on the pavement about two feet.

It is clear that the manifest weight of the evidence shows that there were lights burning on this bus at the time of the accident. It is also clear that it shows that motor cars approaching it from either direction did discover the bus within distances of 30 yards to half a mile and in ample time to turn around it and pass it without a collision and that the plaintiff by the .exercise of ordinary care could have seen the bus in ample time to have avoided the collision. Under the circumstances shown by the evidence it becomes immaterial just to what extent the rear end of the motor bus extended ovér the west side of the pavement or whether the tail light was in fact lighted. The main fact is established by the manifest weight of the evidence that the bus was visible to anyone approaching from either direction at a sufficient distance so that it could be seen by the use of ordinary care in ample time to avoid colliding with it.

In the case of Powers v. Standard Oil Co., 98 N. J. L. 730, the court said: “In this situation the truck was an immobile, inactive instrumentality, incapable in its inactive condition of perpetrating harm or damage. The fact that its reversed situation made its position upon the street at that point a violation of the traffic law, did not confer upon the truck either activity or force, so as to constitute it an active, efficient instrumentality for harm. Its violation of the traffic law created simply a super-added visible condition upon the street, which was perfectly obvious to the wayfarer, and imposed upon him or her, as a consequence, the necessity for corresponding care or precaution in the use of the highway. For the patent violation of the traffic law the remedy rested with the constituted municipal authorities, but its actual existence as an obvious fact to be reckoned with could not be ignored by the traveling public, and did not exempt the wayfarer from the exercise of the legal duty of due care under the existing condition. . . .

“In the case at bar it was unimportant whether the defendant’s car rested legally or illegally upon the street, since its obstruction to the vision of the crossing pedestrian, or to the driver of a moving car upon the roadway, would under the testimony be equally effective. In either event its impotence for harm or damage, as an innocuous immobile instrumentality, must be manifest, since in both situations it simply presented a patent condition, and not an operating, efficient or proximate cause which can be said to contain by its activity, that potentiality for harm or damage, which furnishes the test upon which the rule of liability in this character of tort feasance is predicated. ’ ’

In the case of Frochter v. Arenholz, 242 Ill. App. 93, it was held: “An accidental break in machinery, or a defect in the mechanism or parts peculiar to the car, often gives the person operating it no choice about leaving a car standing in the road until a remedy for the mishap is found. ’ ’

This court held in Collins v. McMullin, 225 Ill. App. 430: ‘1 The mere act of leaving an automobile standing on the proper side of a public road, however, cannot be regarded as negligence; it is a matter of common knowledge that it is not an infrequent occurrence to see an automobile standing in the public road; sometimes this occurs on account of an accidental break in machinery, or a defect in the mechanism peculiar to the car or because of a puncture in a tire, or because the car has run out of gasoline. Persons operating cars often have no choice about leaving a car standing in the road, until a remedy for the mishap is found.”

The conclusions we have come to as above expressed make it unnecessary to discuss the other errors presented. The judgment of the circuit court is reversed . and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Niehaus

license: Public Domain

text:
    Grover W. Watson, Trustee for the Creditors of Smith Fuller and Kempton S. Fuller, Appellee, v. James S. Sullivan, Appellant.
    Gen. No. 8,433.
    Heard in this court at the April term, 1930.
    Opinion filed January 26, 1931.
    William E. Bach and Charles M. Peirce, for appellant.
    Herrick & Herrick, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

This is an appeal from the order of the circuit court of DeWitt county denying a motion by the appellant, James S. Sullivan, to vacate or set aside a judgment by confession in favor of the appellee, Grover W. Watson, Trustee, for the sum of $839.50; or open the judgment and for leave to plead in defense. A motion was made by the appellee preliminary to the taking of the case by the court for review, to affirm the order and judgment of the circuit court on the ground that the abstract filed herein by the appellant did not comply with the rules of this court and was therefore insufficient. We took this motion with the case. We find that the abstract filed by the appellant is incomplete; and that it does not comply with the requirements of Rule 4 of this court relating to abstracts filed in cases brought to this court for review. The first requirement of the rule is, that the abstract should be a complete abstract of the record. It is apparent from the abstract in question that it does not do so; that it is not sufficiently complete to enable this court to determine whether the errors assigned are well taken. The following errors are assigned: (2) “The trial court erred in not entering an order vacating and holding for naught the judgment by confession entered by the complainant, Grover Watson, trustee.”

(3) “The trial court erred in permitting complainant on a motion to vacate judgment, stay execution and leave to plead to offer incompetent evidence, and a counter affidavit over objections.”

(4) “The trial court erred in not permitting appellant the right to rebut the evidence erroneously admitted on behalf of appellant. ’ ’

The affidavit mentioned in the third assignment of error is not abstracted.

During the hearing before the court, in which both parties participated and offered evidence, the appellee offered in evidence the abstract, and in reference to this offer states: “A decree of the circuit court in cause No. 5243 Chancery. The offer of which was objected to by the defendant. Overruled, and is wholly immaterial except at page 47 to the middle of page 51.” The decree however which was admitted in evideuce is not abstracted. The abstract recites, that “defendants offer in evidence Exhibit 2”; but exhibit 2 is not set out in the abstract. The original bill in the case of Watson v. Willerton was offered and put in evidence; but the bill is not abstracted. The narr. and cognovit upon which the judgment was founded are not abstracted; nor is a copy of the two judgment notes which were involved in the judgment sought to be set aside, set out in the abstract. The abstract mentions in connection therewith merely “cognovit by the clerk December 7th, 1920”; and all that appears about the judgment in the abstract is “judgment in confession signed by the clerk for $839.50 and costs.”

A mere recital in the record what the judgment was, is not a judgment. O’Donnell v. Quinn, 100 Ill. App. 5; Brougher v. Lost Creek Drainage Dist., 274 Ill. 193. The notes and warrant of attorney may not be considered where they are not preserved in the bill of .exceptions although the clerk has copied them into the transcript. Davis v. Wirth, 249 Ill. App. 544; Davis v. Mosbacher, 252 Ill. App. 536. In this case they are neither in the bill of exceptions nor the abstract. Nor does the abstract upon its face purport to be a complete abstract of all the evidence before the court upon the hearing had in this case; nor the evidence pertaining to the rendition of the judgment.

It is proper to affirm the judgment on appeal, when a sufficient abstract is not filed. Chicago Record-Herald Co. v. Bender Store Fixture Co., 207 Ill. App. 152.

For the reasons stated the motion of the appellee is sustained, and the judgment is therefore affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Barry

text:
    Oscar C. Werner, Defendant in Error, v. The W. H. Shons Company, Plaintiff in Error.

      Heard in this court at the May term, 1929.
    Opinion filed September 20, 1929.
    James A. Watson, for plaintiff in error.
    B. F. Anderson, for defendant in error; John W. Browning, of counsel.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

In an action on the case in which plaintiff in error, a partnership, was sued as a legal entity, a judgment was rendered against it by default for $15,000. The suit was brought against it in its firm name by virtue of section 13 of the Practice Act, Cahill’s St. ch. 110, H13, which provides: “Any non-resident person or any co-partnership, the members of which are all nonresidents, but having a place or places of business in any county of this State in which suit may be instituted, may be sued by the usual and ordinary name which such person or co-partnership has assumed and under which such person or co-partnership is doing business and service of process may be had in such county upon such person or co-partnership by serving the same upon any agent of such person or co-partnership within this State. ’ ’

The purpose of that statute is to place such partnerships upon a basis similar to that of corporations with reference to bringing suits by service of process upon an agent; Watson v. Coon, 247 Ill. 414.

A summons was issued to the sheriff of Pope county and this was his return thereon: “I have duly served the within writ on the within named W. H. Shons Company, by reading the same to Ernest Basey, an agent of the within named W. H. Shons Company and at the same time delivering a true copy of this writ to the said Ernest Basey, agent as aforesaid, the said W. H. Shons Company or any member of said firm not being found in my county. Dated this 20th day of October, A. D. 1928. E. F. Peel, sheriff.”

The only ground relied upon for a reversal of the judgment is that the court did not obtain jurisdiction of plaintiff in error. It is argued that a lack of jurisdiction appears upon the face of the record because the declaration does not aver, and the sheriff’s return fails to show: (1) That plaintiff in error is a co-partnership; (2) that the persons designated as “The W. H. Shons Company” are non-residents of Pope county and residents of this State; (3) that plaintiff in error had a place of business in said county.

The contention is that even though all of the statutory facts existed which authorized defendant in error to sue the partnership in its firm name in Pope county, and to procure service upon its agent in that county, yet the court did not acquire jurisdiction of plaintiff in error because such facts were not affirmatively shown in the declaration or in the sheriff’s return.

As to the contention that it does not appear from the declaration or the sheriff’s return that the plaintiff in error is a co-partnership, we would say that the name by which plaintiff in error was sued and described in the declaration imports a co-partnership. Wahouma Drug Co. v. Clay, 193 Ala. 79, 69 So. 82.

Section two of the Practice Act provides that it shall be the duty of the sheriff or coroner to serve all process of summons or capias; when it shall be practicable, ten days before the return date thereof, and to make return of such process to the clerk who issued the same, by or on the return day, with an indorsement of his service, the time of serving it, and the amount of his fee, Cahill’s HI. St. ch. 110, 1f 2.

The sheriff’s return complies in all respects with the provisions of that statute. The statute does not require the sheriff to state anything more in his return than he has stated. The return shows a proper service upon the agent of plaintiff in error under section 13 of the Practice Act, Cahill’s St. ch. 110, ¶ 13. If the return were imperfect or insufficient that would not warrant us in reversing the judgment. Another statute provides that a judgment shall not be reversed for any imperfect or insufficient return by any sheriff, Cahill’s Ill. St. ch. 7, ¶ 16.

Section 13 of the Practice Act, Cahill’s St. ch. 110, If 13, under which this suit was brought, has been construed so as to apply to cases where the members of the firm are all residents of the State of Illinois but non-residents of the county in which the suit is brought; Watson v. Coon, 247 Ill. 414; Flexner v. Farson, 268 Ill. 435; Joel v. Bennett, 276 Ill. 537. In the case last cited, it was insisted that the judgment should be reversed because the sheriff’s return did not show that plaintiff in error was a resident of the State. In reply to that contention the court said: “If persons who are non-residents of the State are sought to be served under this section and that fact is not shown by the return of the sheriff, it can be shown in a proper way and the service quashed.”

If the sheriff is not required to show by his return that a defendant is a resident of this State, we are at a loss to understand why he should be required to show all of the other statutory facts which plaintiff in error insists should be shown by his return.

The next question to be determined is whether all of the statutory facts should be averred in the declaration. Statutes frequently prohibit partnerships from using an assumed or fictitious name that does not disclose the names of the partners, and deny the right of such firms to maintain suits unless they have filed in some public office a certificate disclosing the true names of the members of the firm; 47 C. J. 737. Non-compliance with such statutes, however, is held to be an affirmative defense which must be pleaded and proven by the defendant; 47 C. J. 745.

The statute of 1827 contained the following provisions : “It shall not be lawful for any plaintiff to sue any defendant out of the county where the latter resides or may be found, except in cases where the debt, contract, or cause of action accrued in the county of the plaintiff, or where the contract may have been specifically made payable; when it shall be lawful to sue in such county, and process may issue against the defendant' to the sheriff of the county where he resides.” Under that statute it was held for some time that it was necessary for a plaintiff to aver in his declaration the facts which made it lawful for him to sue the defendant in a county in which the latter did not reside. The following are some of the early decisions to that effect: Clark v. Harkness, 2 Ill. 56; Key v. Collins, 2 Ill. 403; Evans v. Crosier, 2 Ill. 548; Haddock v. Waterman, 11 Ill. 474.

As early as Beaubien v. Brinckerhoff, 3 Ill. 269, 274, a judgment by default was reviewed on a writ of error and the court held that even though it did not appear from the declaration that the defendant was lawfully sued out of the county in which he resided, it must be presumed that the facts existed which entitled the plaintiff to sue the defendant out of his county. All of the foregoing cases last mentioned were reviewed in Kenney v. Greer, 13 Ill. 432, and the conclusion was there reached that it was unnecessary for the declaration to aver the facts that would authorize the plaintiff to sue the defendant out of his county as it would be presumed that the suit was brought in the proper county in the absence of a showing to the contrary. In the case last cited the court held that unless ,a defendant, when sued in a foreign county, insists upon the privilege which the statute gives him, either by motion or plea in abatement, it will be presumed either that he has waived his right, or that the facts existed, which authorized a suit against him in a foreign county.

In later cases arising under the statute of 1827 aforesaid, it was held that where process issues to a foreign county, the declaration need not contain any averment as to the residence of the plaintiff, or the accruing of the cause of action; Gillilan v. Gray, 14 Ill. 416; Hardy v. Adams, 48 Ill. 532.

In the case at bar there is nothing in the record that in any way tends to show that the statutory facts which would authorize this suit to be brought as it was, did not exist. It clearly appears that it was possible under the statute for the court to acquire jurisdiction of plaintiff in error. It has been held that where it is possible for the court to have jurisdiction, it will be presumed the state of facts existed which authorized the court to assume to render judgment; Wallace v. Cox, 71 Ill. 548.

Under the foregoing authorities we would not be warranted in holding that the court did not acquire jurisdiction of plaintiff in error. The trial court is a court of general jurisdiction and nothing shall be intended to be out of its jurisdiction except that which specially appears to be so. If any of the statutory facts mentioned in section 13 of the Practice Act, Cahill’s St. ch. 110, ff 13, did not exist, plaintiff in error should have brought them to the attention of the court by a plea to the jurisdiction. This it failed to do. Where an objection to the jurisdiction of a court of general jurisdiction is founded upon extrinsic facts not apparent from an inspection of the record, the matter must be pleaded in abatement; Willard v. Zehr, 215 Ill. 148.

Section 6 of our present Practice Act, Cahill’s St. ch. 110, If 6, provides that it shall not be lawful for any plaintiff to sue any defendant out of the county where the latter resides or may be found with certain exceptions. The statute has been materially changed since 1827. There are now but few cases in which a defendant may be sued out of the county where he resides or may be found. Under the present statute the rule is firmly established that where a defendant seeks to raise the question of jurisdiction, in a case where he has been served with summons in another county, he must do so by plea in abatement. He cannot avail of it by demurrer, or by writ of error after default; Wallace v. Cox, 71 Ill. 548; Iles v. Heidenreich, 271 Ill. 480.

We are of the opinion that the trial court had jurisdiction of the plaintiff in error, and as that is the only question we have been asked to consider, the judgment must be affirmed.

Affirmed.


author: Mr. Justice Wolfe

text:
    M. D. Colp et al., Appellants, v. First Baptist Church of Murphysboro et al., Appellees.
    Heard in this court at the May term, 1929.
    Opinion filed October 31, 1929.
    Fletcher Lewis, Herbert A. Hats and L. A. Colp, for appellants.

      Fred Gf. Bierer, Isaac K. Levy, David B. Levy and Lawrence A. Glenn, for certain appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.

In March, 1925, the church building of the First Baptist Church of Murphysboro, Illinois, was partially destroyed by a tornado and fire. On or about May 11, 1926, the church through its trustees made a written contract with William Jolly to reconstruct a church building upon the old site. The contract was completed on or about June 15, 1927. A dispute arose between the contractor and the church as to the balance due the contractor and suit was filed by Jolly against the church for the amount he claimed was due. On September 30, 1927, the appellants filed their bill herein for a mechanic’s lien, in which it was alleged that there was a balance of $5,950.68 due to the appellants from the contractor William Jolly and from the church.

The bill alleges that the building material as set out in complainants’ Exhibit “A” and made a part of the bill was delivered to Jolly for the purpose of being used and was used in the erection and construction of said building. All of the defendants in the bill, except the contractor Jolly, filed joint and several answers in which practically all of the allegations of the bill were denied. The answers alleged that a great amount of the building material for which a lien was claimed was not used in the erection of the building.

The complainants offered proof tending to show that all of the lumber and material as set forth in their Exhibit “A,” were actually delivered on the premises for the purpose of being used in the construction and erection of the new church building. The defendants had Fred Armm and R. A. Gardner, each experienced contractors and builders, to testify that they had made measurements of the building; that they could from such measurements estimate the amount of material that had been used in the construction of the building; that there was not as much two-inch lumber, one-inch lumber, face brick, maple flooring, or pine flooring in the completed building as complainants claimed they had delivered for the erection of the building. The evidence was taken before a master in chancery who found in favor of the defendants, and deducted from the amount of the claim $1,691.53 on the face brick, $897.34 on the maple flooring, $188 on the pine flooring, but rejected the claim of the defendants on the two-inch lumber and one-inch lumber used in the construction of the building, as that was covered by other building material and could not be accurately estimated.

Objections to the master’s report as filed were overruled. The same were ordered to stand as exceptions, and the chancellor fully sustained the master’s findings and an appeal to this court was prayed by the appellants.

The contentions upon which the appellants rely for reversal are: (1) That they proved delivery of the materials to the contractor at the place where said building or improvement was being constructed for the purpose of being used or employed in the process of or in the construction of the building, and that any proof that some of it was not actually used in the building is incompetent because it constitutes no defense to a lien for the materials so delivered; (2) That defendants’ proof fails to establish by the necessary quantum of evidence, that all of the materials charged were not used in the construction of the buildings and (3) That the evidence conclusively established a right to the lien for the full amount claimed.

It is first contended by the appellants that the court erred in considering the testimony of the defendants’ witnesses to show that the building material delivered upon the premises for the purpose of being used in the construction of the church building was not all used for the reasons that the statute provides it was only necessary for the complainants to show that the mate-, rial was delivered to the owners of the building, or his agent for such building, to be used in such building or at such place where said building was being constructed for the purpose of being used in the construction of the building.

Section 7 of our Mechanic’s Lien Law, Cahill’s St. ch. 82, ft 7, provides that a lien for materials shall not be defeated because of lack of proof that the material after the delivery thereof, actually entered into the construction of the building, although it be shown that such material was not actually used in such building; providing it is shown that such material was delivered to said owner or his agent for such building, to be used in such building, or at the place where said building was being constructed, for the purpose of being used in the construction of the building.

Counsel for appellants have not cited a case in which our Supreme Court has held that a material man who shows he has furnished material for the erection of a building on premises on which he claims -a lien under such act, that on the trial of the case the owner of the property on which the lien is sought, could not show that some of the material claimed to be delivered to be used in the construction of the building, was not actually used, when that question is properly raised by the pleadings in the case.

The appellants cite the case of Keeley Brewing Co. v. Neubaner Decorating Co., 194 Ill. 580-594, as sustaining their contention.. It will be observed- in reading this case that no defense, was made -by the pleadings that the material was not used in the building, and we do not deem this case as being decisive upon the question involved in the case a/t bar. In Haas Electric & Mfg. Co. v. Springfield Amusement Park, 236 Ill. 452, 461, the same question was before the Supreme Court, and from the language used in that case on page 461 we are led to believe that the court did not intend to hold in Keeley Brewing Co. v. Neubauer Decorating Co., supra, as appellants contend is the law in this case — (Rittenhouse & Embree Co. v. Brown & Co., 254 Ill. 549.)

The Appellate Court of the First District in the case of Builders Material Co. v. Johnson, 158 Ill. App. 411, held that the delivery of the material as provided for in section 7, means that by proving such delivery the contractor has made out a prima facie case. If there is no proof that the material was not used in the erection of the building, the complainant can recover, but the burden of proof would be upon the owner of the building to show that the material was not used in the construction of the building. This case was cited and approved by the Appellate Court of the Fourth District in the case of Siemer Milling Co. v. Moritz, 227 Ill. App. 459. We think the evidence of contractors in regard to their measurements and estimates were properly admitted as it stands to reason that the contractor had to be able to estimate the amount of face brick and other materials which would be required before he could take the contract to build the church. If so, then he certainly could estimate the amount of such material which had been actually used in the erection of the building. We think the evidence was properly admitted and it was for the chancellor to weigh the evidence and decide the equities of the case.

The complainants in their bill allege that the various building materials as set forth in Exhibit “A” had been delivered to the contractor at the site of the building; and also allege that such material was used in the erection and construction of said building. The defendants by the answer deny these allegations. Therefore, it is a question of fact to be decided by the chancellor whether this material had been used in the erection of the building as set forth in the complainants’ bill.

It has been repeatedly held that the allegations of a bill and the proof must correspond. Complainants to recover at all must do so on the case made by the bill, and they will not be permitted to state one case in their bill and make a different one in the proof. They must stand or fall by the case they make in their bill. Rowan v. Bowles, 21 Ill. 17; Stearns v. Glos, 235 Ill. 290; Gage v. Curtis, 122 Ill. 520; Houlihan v. Morrissey, 270 Ill. 66.

The complainants having alleged that all of the material as furnished had gone into the erection of the building, the burden of proof is upon them to establish that fact. The master by his findings, which have been affirmed by the chancellor, has found that all of the material as claimed by appellants was not used in the erection of the building. We are of the opinion that the evidence sustains the findings of the master and the decree of the chancellor and the judgment of the circuit court of Jackson county is hereby affirmed.

Affirmed.


text:
    W. G. Scott, Defendant in Error, v. J. M. Simmons et al., Plaintiffs in Error.
    Heard in this court at the February term, 1930,
    Opinion filed January 19, 1931.

      Frank J. Burns and Jambs T. Burns, for plaintiffs in error.
    B. F. Anderson, for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

In an action of assumpsit defendant in error recovered a judgment against plaintiffs in error by default. The sheriff’s return on the summons shows that it was served by reading only.

Plaintiffs in error contend that the service in that regard was insufficient to give the court jurisdiction over them. The statute provides that service of summons, except when otherwise expressly provided by statute, shall be made by leaving a copy thereof with the defendant in person. Cahill’s Ill. St. ch. 110, ¶ 2. When a statute requires that the service of a summons shall be made by leaving a copy with the defendant, service by reading is not sufficient to give the court jurisdiction, where the defendant does not appear and plead. Sconce v. Whitney, 12 Ill. 150; Wilhite v. Pearce, 47 Ill. 413; Greenwood v. Murphy, 131 Ill. 604-607.

There is no escape from the conclusion that the court failed to acquire jurisdiction of the plaintiffs in error and for that reason the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Tibbitts-Hewitt Grocery Company, Plaintiff in Error, v. Sam Cohen et al., Defendants in Error.
    Heard in this court at the May term, 1930.
    Opinion filed January 19, 1931.
    Egbert F. White and John V. Lee, for plaintiff in error.
    Griffith & Lueders, for defendants in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Sam Cohen, a retail grocer at Venice, Illinois, made a common-law assignment to a trustee for the benefit of his creditors. The trustee sold the property to G. T. Chappee, who conducted the store, buying other goods and selling in the usual course of business, for 40 days, when plaintiff in error caused an attachment to be levied upon the entire stock. Chappee intervened and claimed the property and the trial of that issue resulted in a judgment in his favor. At the time the assignment was made the provisions of the Bulk Sales Act, Cahill’s St. eh. 121a, fí 1 et seq., were not complied with and for that reason plaintiff in error contends that the assignment was null and void.

The Bulk Sales law was enacted for the protection of creditors. We know of nothing that would more fully protect creditors than an assignment for their benefit. That being true, it was unnecessary to comply with the provisions of that act. Cardiff Gypsum Plaster Co. v. Hales Coal & Material Co., 239 Ill. App. 16. The assignment contained some provisions which would render it voidable so long as the property remained in the hands of the trustee, but when he sold it to Chappee, a bona fide purchaser, plaintiff in error lost its right to avoid the assignment. Ramsdell v. Sigerson, 7 Ill. 78; Conkling v. Carson, 11 Ill. 503.

The undisputed evidence shows that plaintiff in error wanted Cohen to make an assignment on the morning of the day it was made. After it was made the attorney for plaintiff in error, knowing of the fact, requested the trustee to do all he could to get Cohen’s relatives to waive their claims. The trustee made the effort but was unsuccessful. Two weeks before the trustee sold the property to Chappee, plaintiff in error was advised that the same was to be sold. The trustee sent plaintiff in error a check for its pro rata share of the proceeds on January 8, 1929, and while the check had not been cashed on May 28, 1929', the date of the trial, it had not been returned. Under the evidence in the record,, plaintiff in error is in no position to insist that the assignment was void. The judgment is affirmed.

Affirmed.


text:
    Charles Maples, Appellee, v. Newton Mutual County Fire Insurance Company, Appellant.
    Heard in this court at the October term, 1930.
    Opinion filed January 19, 1931.
    Smith & Smith and Milo D. Yelvington, for appellant.
    Albert E. Islet, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of .the court.

Appellee sued to recover on an insurance policy issued by appellant. Upon the trial of the case the court directed a verdict in favor of appellee for $1,200, and judgment was rendered thereon.

To the declaration appellant filed the general issue with notice of special defense to the effect that appellee had failed to pay a certain assessment and that by reason thereof the policy had been canceled prior to the date of the fire.

Appellant was incorporated as a County Fire Insurance Company under Cahill’s St. ch. 73, H187 et seq. Section 12 of the statute (Cahill’s St. ch. 73, If 198), provides that when the amount of a loss exceeds one-tenth of one per cent of all the property insured, the directors of the company shall make an assessment sufficient to pay all indebtedness of the company and may make an additional assessment for a sum not to exceed one-tenth of one per cent of all the insurance in force at the time of the making of said assessment. At a meeting of appellant’s board of directors on September 1, 1928, a motion was adopted that a levy of 20(, on the $100 insurance carried by the stockholders be made, said assessment to begin Saturday, October 6,1928, and to continue five consecutive Saturdays. There is nothing in the record of that meeting that even tends to show what the amount of the loss was for which the assessment was to be made. No evidence was offered on the trial of the case to show that there was a loss on or before September 1, 1928, to exceed one-tenth of one per cent of all the property insured. Appellant’s by-law, No. 26, states that the board of directors are not permitted to order an assessment unless the surplus fund shall be reduced to less than $1,000. No evidence was offered as to whether the surplus fund had been reduced to less than $1,000 on September 1,1928. An assessment which is to be made only in a certain contingency is invalid where such contingency is not shown. Chicago City Railway Employees’ Mut. Aid, Ass’n v. Hogan, 124 Ill. App. 447; Illinois Commercial Men’s Ass’n v. Perrin, 139 Ill. App. 543; Farmers’ Mut. Fire Ins. Co. v. Knight, 162 Ill. 470. It is quite apparent, therefore, that the assessment attempted to be made by appellant was invalid and void. Section 13 of the same statute, Cahill’s St. ch. 73, If 199, provides that it shall be the duty of the president, whenever such assessment shall have been made, to immediately notify every person composing such company, personally, by an agent or by letter sent to his usual post office address, of the amount of such loss, and the sum due from him as his share thereof, etc. Appellant claimed on the trial that notice had been given through the mail but there is no evidence in the record that notice was actually mailed to appellee. A copy of the purported notice does not state the amount of the loss as required by the statute. There is no escape from the conclusion that there was no valid assessment and that no notice was given of the attempted assessment. That being true, appellant had no power or authority to cancel appellee’s policy for a failure to pay the alleged assessment in question.

Appellant insists that it is immaterial whether the assessment was illegal and void because it says that appellee did not refuse to pay it on that account. It says that appellee knew an assessment had been made which he had not paid long before the fire and that because of his conduct he should be estopped from now claiming that the assessment was illegal and void. Appellant is seeking to escape liability on the ground that appellee had failed to pay a valid assessment. The burden was upon appellant to prove that there was such an assessment, that appellee was duly notified thereof as required by statute, that he failed to .make the payment and that, by reason thereof appellant had canceled the policy. We find none of the essential elements of estoppel in the record. Holcomb v. Boynton, 151 Ill. 294. Appellant did not in any way change its position because of anything that appellee said or did. The judgment is affirmed.

Affirmed.


text:
    Earl L. Zink, Appellant, v. Breese Grain Company, Appellee.
    Heard in this court at the October term, 1930.
    Opinion filed January 19, 1931.
    L. N. Nick Perrin, Jr., for appellant.
    Barnabas F. Sears and Murray & Niehoee, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellant, a minor between seven and eight years of age, sued to recover for personal injuries alleged to have been caused by the negligence of a servant of appellee. The trial resulted in a verdict and judgment in favor of appellee.

The declaration avers that while appellant was standing upon the public highway at the intersection of Cherry and Seventh Streets in the City of Breese, with all due care and caution for his own safety, appellee, by its servant, so carelessly, negligently and improperly drove and managed a certain automobile, that by reason of the carelessness, negligence and improper conduct of its said servant the said automobile ran into and struck appellant with great force and violence and broke his left leg, etc. Cherry Street runs north and south and is intersected at right angles by Seventh Street. There is a ditch along the east side of Cherry Street and there is a concrete sidewalk bridge over that ditch. There are iron railings on either side of the bridge, the railings being about 8 feet in length east and west and the sidewalk bridge is perhaps 10 feet in length. Cherry Street is about 25 feet in width. On the day in question appellee’s servant was driving a car south on Cherry Street and approached the intersection at a speed of from 12 to 15 miles per hour. When the car was a block north of the intersection appellant and two other boys were standing, or playing upon the sidewalk bridge between the railings and they saw the car coming when it was a block away. The driver of the car saw the boys in that position when he was a block away and watched them, and he testified that when his car was about 10 feet north of the sidewalk line the boys were still standing about the center of the.sidewalk bridge between the railings. He took his eyes off the boys at that point and was looking south and just as his car was passing over the sidewalk he felt a little jar when appellant was struck.

Appellant says that when the car was about a block away he was in the middle of the sidewalk bridge; that he didn’t watch the car from that time on hut that he walked west for about five steps facing the street and that when he was about three feet out in the street he stooped to pick up some pebbles and the side of the left front fender of the car struck him.

No one contradicts the testimony of the driver of the car to the effect that when his car was about 10 feet north of the sidewalk line the boys were all in the middle of the sidewalk bridge. It doesn’t seem possible that appellant could walk far enough out into the street to be struck by the fender while the car was moving 10 feet. There is testimony strongly tending to show that very shortly after the accident appellant stated that one of the other boys was shooting at him with a rubber gun and that he ran out into the street.

The record does not show that the car was being driven at an unlawful speed or that the driver was disobeying any requirement of the law. When a motor vehicle is proceeding along at a lawful speed and is obeying all the requirements of the law of the road and all the regulations for the operation of such machine, the driver is not, as a general proposition, liable for injuries received by a child who darts in front of the machine so suddenly that its driver cannot stop or otherwise avoid the injury. Morrison v. Flowers, 308 Ill. 189-197.

In our opinion it cannot be said that appellee was shown to have been guilty of any negligence. It is, of course, an unfortunate accident, and appellant received a serious injury, but in the absence of negligence on the part of appellee he was not entitled to recover. We cannot say that the verdict of the jury in that regard is contrary to the evidence. In our view of the law and the evidence it is unnecessary to consider the alleged errors relied upon by appellant for a reversal. The judgment is affirmed.

Affirmed.


text:
    Mobile & Ohio Railroad Company, Appellant, v. John H. Parrent, Appellee.
    Heard in this court at the October term, 1930.
    Opinion filed January 19, 1931.
    L. R. Stewart and Lansden & Lansden, for appellant; Carl Fox, of counsel.
    Willard F. Ellis, Mark D. Eagleton and Allen, Moser & Marsalek, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee received an injury while in the employ of appellant in Jackson county. He filed a suit in the circuit court of the City of St. Louis to recover under the Federal Employers’ Liability Act, Cahill’s St. ch. 114,1f 321 et seq. Appellant then filed a bill in chancery to enjoin the prosecution of that suit. It averred, in its bill, that it is a corporation under the laws of Alabama and is licensed to transact business in Illinois and that for many years it has operated a line of railroads from East St. Louis through the county of St. Clair and several other Illinois counties and through three or four States to Mobile, Alabama; that under the contracts with other railroad and terminal companies it also operates some of its trains between St. Louis, Missouri and East St. Louis, Illinois; that it is engaged in both interstate and intrastate commerce; that appellee was injured while in its employ in Jackson county where it has division headquarters, shops, roundhouses, etc., and where many of its division officers reside and transact their business.

The bill averred that appellee is, and has been for many years, a resident of said Jackson county and that he had been in the employ of appellant for 24 years prior to the time of his injury on October 6,1929; that his injuries were due solely to his own negligence; that on February 24, 1930, he brought suit in St. Louis, Missouri, to recover damages for his injuries.

The bill avers that appellee could have sued appellant in any one of several Illinois counties named, including St. Clair county, and that there were able lawyers in each of said counties whose services could have been secured by appellee; that there are from 12 to 15 persons who would be competent and necessary witnesses for appellant on the trial of the cause, all of whom are residents of Jackson county, and most of Avhom are in the employ of appellant and are engaged in the furtherance of interstate commerce; that among said witnesses are appellant’s division superintendent, its train master and road master; that the efficient operation of appellant’s railroad requires the constant supervision of said division officers whose duties cannot be efficiently performed by others; that other witnesses, in appellant’s employ, are engaged in work that could not be done by others Avithout great expense to appellant if such witnesses are required to attend court in St. Louis, Missouri.

It also avers that appellant will be unable to compel the attendance of witnesses in court in St. Louis and that even if such witnesses agreed to attend said court appellant could not safely rely upon such an agreement; that such witnesses would be taken from their regular work in the conduct of interstate business and that such business would be disrupted and an unreasonable and unnecessary burden placed upon interstate business; that it would be important for appellant to have its witnesses present in court instead of being required to depend upon depositions, etc.

It avers that it will be put to great inconvenience; that St. Louis, Missouri, is about 90 miles from the county seat of Jackson county and that the trial of the case in St. Louis will place an unwarranted and unnecessary burden upon the interstate commerce conducted by appellant. A demurrer was sustained to the bill and it was dismissed for want of equity.

Appellant calls attention to the fact that it has not averred any attempt on the part of appellee to evade the law of Illinois or to procure any advantage by resorting to the courts of Missouri. The decisions of the various courts bearing upon the question under consideration are anything but harmonious. Practically all of the courts agree .that a resident of a State may be enjoined, in a proper case, from prosecuting a suit in the courts of another State. The courts differ on the question as to what constitutes a proper case for the exercise of such jurisdiction. No general rule can. be laid down as to when the court ought to enjoin a party from prosecuting a suit in a foreign jurisdiction. Bach case must be ruled by its own facts. 14 B. C. L. 414; 32 O. J. 116. That is recognized by all the courts.

The only material difference between the bill in Illinois Life Ins. Co. v. Prentiss, 277 Ill. 383, and the bill in the case at bar, is the alleged unreasonable expense and burden placed upon interstate commerce, if appellee is permitted to litigate in St. Louis. In the Prentiss case, supra, it was held that it is only where it clearly appears that the bringing of a suit in a foreign State will result in a fraud, gross wrong or oppression that a court of equity will interfere with the general right of a person to begin his suit in any jurisdiction he sees fit and restrain him from the prosecution of such suit. And the court also said that it may be inconvenient to go to a foreign State to try the suit or that the maintenance of two suits will cause double litigation and added expense, is insufficient cause for an injunction against prosecuting the suit proposed to be brought in the State of Missouri and does not justify any interference by a court of equity.

In that case the court further said: “Appellant has the legal right to bring his action against appellee on this policy of insurance in the State of Missouri, and this right will not be interfered with unless a clear equity is presented requiring the interposition of the court to prevent a manifest wrong and injury.”

In the case at bar appellant concedes that appellee had the absolute right to begin his suit in St. Clair county, Illinois. The courthouse in that county is almost as far distant from the courthouse in Jackson county as will be the place of holding court in St. Louis. If appellee has the right to insist upon a trial in St. Clair county the alleged increased burden upon interstate commerce would be practically the same whether the case is tried in that county or across the river in St. Louis. We find nothing in the bill that would warrant us in reaching a conclusion different from that announced by the Supreme Court in the Prentiss case, supra. The court did not err in dismissing the bill for want of equity, and the decree is affirmed.

Affirmed.


text:
    Emmett E. Middleton, Appellant, v. North American Protective Association, Appellee.

      Heard in this court at the
    October term, 1930.
    Opinion filed January 19, 1931.
    William A. Mills, for appellant.
    John A. MacNeil, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellant, as beneficiary, sought to recover on an insurance certificate issued on the life of his sister. A demurrer to the declaration was sustained, and electing to abide by his declaration, the suit was dismissed at his costs. While the declaration is far from being a model to be recommended for general use, yet we are of the opinion that it states a cause of action. The certificate, issued May 19,1925, and the by-laws printed thereon, are set out in the declaration. One of the by-laws is to the effect that when a member is accepted the membership fee and one assessment are paid in advance, the association will issue a certificate but no liability shall arise thereunder against the association nor any benefit be due to the applicant until the issuance of the certificate and its delivery to and acceptance by the applicant while such applicant is in good health. Appellee contends that the said by-law creates a condition precedent and the declaration is fatally defective because it does not aver that insured was in good health at the time the certificate was delivered. Some decisions of the Appellate Court of the Third District support that contention, but they are based largely upon Ellis v. State Mutual Life Assur. Co., 206 Ill. App. 226; Hartsock v. Kaskaskia Livestock Ins. Co., 223 Ill. App. 433, and Weber v. Prudential Ins. Co., 284 Ill. 326, in all of which death occurred before the policy was delivered. Cases of that character are not applicable where there was a delivery of the policy and the insured has made payments thereon. If a policy, containing such a provision, is delivered and all payments are made by the insured for 40 years, and a suit is then brought by the beneficiary, it seems to us it would be highly unjust to hold that before he can recover he must aver and prove that insured was in good health when the policy was delivered. It might very well be that the insured was not in good health at the time of the delivery yet if he lived for 40 years and made all payments his beneficiary would not be entitled to recover under appellee’s contention, because it could not be proven that he was in good health when the policy was delivered.

In the case at bar the certificate was delivered and all payments made for almost three years before the death of the insured. In our opinion, in such a case, the true rule based upon reason and justice must be that the provision in question does not create a condition precedent hut is a matter of defense that must be pleaded and proven; Fairfield v. Union Life Ins. Co., 196 Ill. App. 7; Hamer v. Globe Mut. Life Ins. Co., 243 Ill. App. 109; Grier v. Mutual Life Ins. Co., 132 N. C. 542, 44 S. E. 28. The declaration avers that the certificate was issued May 19,1925, and that all assessments were paid until January 1, 1928, when appellee gave notice that it had canceled the certificate because of a change made in the law in 1927. The giving of that notice was an admission by appellee that there was a certificate which had been in force up to that time. Aetna Ins. Co. v. Maguire, 51 Ill. 342; Citizens Ins. Co. v. Helbig, 138 Ill. App. 115; McNellis v. Aetna Ins. Co., 176 Ill. App. 575. In the absence of a plea and proof to the contrary, we think it should be assumed that the insured was in good health at the time the certificate was delivered.

It is argued that the declaration fails to state a cause of action because it does not aver that the certificate was delivered to the insured, and the fact of a delivery to her is negatived by an averment that it was issued to appellant. We think this latter averment may be disregarded as surplusage because the certificate set out in the declaration shows it was issued to the insured. There is an averment that all assessments were paid to January 1, 1928, at which time appellee gave notice that it had canceled the certificate. We think it sufficiently appears that the certificate was delivered to and accepted by insured, and that appellee so considered it.

It is insisted that the declaration shows that the insured was not a member of the association at the time of her death because it avers that prior thereto appellee had given notice that the certificate was canceled for the reason that the law was changed in 1927, and she was too old to be a member under the new law, and that plaintiff considered the policy canceled. At the time the certificate was issued the by-laws permitted a person under 74 years of age to be insured. The insured was, at the time aforesaid, 73 years old. In 1927, the statute under which the insurer was organized was repealed and all associations in existence under the old law were allowed six months in which to reincorporate under the new law or go out of business [Cahill’s St. ch. 73,K435 (1) et seq.]. The declaration avers that the insurer, North America Mutual Union, reincorporated in August, 1927, under the name of ■ appellee. The statute of 1927 gave appellee no power or authority to cancel the certificate on the ground that the insured was more than 70 years of age when the certificate was issued. In Jones v. Loaleen Mut. Benefit Ass’n, 255 Ill. App. 170, we held that the statute of 1927 did not authorize a reincorporated association to reduce its liability to those who were members before that law went into effect. For the reasons stated in that opinion appellee had no power or authority to wipe out its liability under the certificate in' question by the attempted cancellation.

Where a cancellation is wrongful, the beneficiary may await the event on which the insurance becomes payable, and after the death of insured may sue for the amount payable under the policy. 32 C. J. 1264. The fact that appellant may have considered the cancellation valid because of the notice given by appellee is not sufficient to bar his action. Hatch v. Grand Lodge Brotherhood of Railroad Trainmen, 233 Ill. App. 495; New York Life Ins. Co. v. Norris, 206 Ala. 656, 91 So. 595.

Appellee claims the declaration does not state a cause of action because it does not aver that appellant furnished notice or proof of death. If an insurer wrongfully cancels an insurance contract and gives the insured notice thereof the latter is excused from further performance of the contract. American Ins. Union v. Woodard, 118 Okla. 248, 247 Pac. 398. Payment or tender of payment of assessments is not necessary if the insurer has already declared the policy canceled, or has done any act which is tantamount to a declaration of refusal to accept the same. 14 R. C. L. 987. In the case at bar the insured died on February 7, 1928, and the declaration avers that about January 1, 1928, appellant received notice from appellee that it had canceled the certificate. The giving of that notice was sufficient to inform appellant that it would be useless to furnish notice or proof of death. It was tantamount to a denial of liability in any event.

It is urged that the declaration shows a contract for wager insurance because it merely avers appellant was a brother of the insured, that the certificate was issued to him and that he paid all of the assessments. There is no showing that appellant was not a proper beneficiary. He could be named as such under the statute, Cahill’s St. ch. 73, f 435 (1) et seq. Delaney v. Delaney, 175 Ill. 187. If there is anything in the constitution or by-laws of the insurer to the contrary it should be pleaded. Assessments may be paid by the insured or the beneficiary or by someone for him, even though the one so paying has no insurable interest. 32 C. J. 1197. It is finally suggested that there is no showing that the insured made application for the certificate or that she had any knowledge that she was a member of the association. It is not necessary that a declaration should contain averments as to such matters, but the certificate does recite that the insured had made application.

For the reasons aforesaid the judgment is reversed and the cause remanded with direction to overrule the demurrer to the declaration.

Reversed and remanded ivith directions.


text:
    In re Estate of Herman Schmidt, Deceased. Samuel Dupuis, Appellant, v. Louis Schmidt, Appellee.
    Heard in this court at the October term, 1930.
    Opinion filed January 19, 1931.
    Rehearing denied February 24, 1931.
    L. N. Nick Perrin, Jr. and Leroy F. Perrin, for appellant.
    Jas. Gr. McHale and Ernest R. McHale, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Herman Schmidt was a soldier in the World War and carried war risk insurance. His mother was named as beneficiary. The insured died in 1918 and monthly payments were made under the insurance contract to his mother until she died in 1928. The balance then amounted to $5,887, which sum the United States paid to the administrator of the estate of the said Herman Schmidt. The administrator presented its final report to the prohate court in which it proposed to pay half of the fund to the father of the insured and the other half to his stepfather. Objections were presented by the father, but the same were overruled and he then appealed to the circuit court. That court held that the father of the insured was entitled to the whole amount and ordered the administrator to file a new report in accordance with such finding. From that order the stepfather, Samuel Dupuis, appealed to this court.

The sole question presented is whether appellant, the stepfather, is entitled to one-half of the insurance fund. Herman Schmidt was the only child of Louis Schmidt and Ellen Schmidt. They were divorced and Ellen Schmidt married appellant, who, at the time of her death in 1928, was- her only heir at law.

Appellee concedes that upon the death of the beneficiary the United States properly paid the balance of the insurance fund to the estate of the insured under United States Code Annotated, Title 38, Section 514. He contends, however, that a stepfather is not a permitted beneficiary under the act of congress, and for that reason he is not entitled to any portion of the fund. Section 511 of the United States Code, aforesaid, provides that the insurance shall be payable only to a spouse, child, grandchild, parent, brother, sister, uncle, aunt, nephew, niece, brother-in-law, or sister-in-law. Section 424 of the same United States Code provides that the word “parent” as used in said section 511, shall include a stepfather. We are not advised as to whether said section 424 was a part of the statute at the time the’ insurance certificate was issued to Herman Schmidt. The certificate, however, provided in terms that it should be subject to the provisions of the Act of 1917 and all amendments that might be thereafter made. Congress had the power and authority to enlarge the permitted class of beneficiaries. White v. United States, 270 U. S. 175,

The great weight of authority is to the effect that those entitled to the insurance fund as a part of the estate of the insured shall be determined as of the date of the death of the insured. 55 A. L. B. 596. At the time of the death of the insured, his only heirs at law were his father and mother. Each of them then became entitled to one-half of the insurance but subject to the right of the mother to receive the monthly instalments as beneficiary so long as she lived. When she died in 1928, the value of the remaining instalments became a part of the estate of the insured. At the death of the mother she left her second husband as her only heir at law. Under the act of congress he was a member of the permitted class of beneficiaries and he was also the only heir at law of the mother of the in- ' sured and became entitled to one-half of the insurance fund in the hands of the administrator.

The original War Bisk Insurance Act has been amended several times and by reason thereof there seems to be much confusion in the decisions pertaining to questions of this character. The original act provided that if no beneficiary within the permitted class be designated by the insured, either in his lifetime or by his last will and testament, or if the designated beneficiary does not survive the insured, the insurance shall be payable to such person or persons within the permitted class of beneficiaries as would under the laws of the State of the residence of the insured be entitled to his personal property in case of intestacy. That provision was changed in 1925, and in the contingency specified, the present value of the balance of the insurance fund is to be paid to the estate of the insured. Congress then omitted the provision, which previously existed, limiting the payment to such person or persons as were then within the permitted class of beneficiaries as would under the laws of the State of the residence of the insured, be entitled to his personal property in case of intestacy. The amendment of 1925, in that regard, is section 514 of the U. S. Code hereinabove mentioned. In some cases the courts overlooked the fact that congress had also enlarged the class of beneficiaries by section 424 of the Code aforesaid. In the case at bar appellant is not only within the permitted class of beneficiaries but he is also the sole heir at law of the mother of the insured and is entitled to one-half of the fund. The father of the insured is entitled to the other half. The judgment of the circuit court is reversed and the cause remanded with directions to enter a judgment in accordance with the views herein expressed.

Reversed and remanded with directions.


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    William Sharp, Appellee, v. National Bond & Investment Company, Appellant.

      Heard in, this court at the October term, 1930.
    Opinion filed January 19, 1931.
    John W. Creekmur, D. E. Hoopingarner and Harry F. Bussell, for appellant.
    T. A. O’Connor, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

In an action of trover appellee sued to recover the value of an automobile alleged to have been converted by appellant. In September, 1929, appellee purchased the car under a conditional sales contract and gave his note for $1,235, the balance of the purchase price. Appellant became the owner of the note and contract and took possession of the car on January 2,1930, at which time there was $1,030 of the note unpaid. A trial before the court, without a jury, resulted in a judgment for $915.83 in favor of appellee.

We find it unnecessary to discuss any question other than the measure of damages. Appellee testified that the sale price of the car, at the time of his purchase, was $1,675, and that shortly thereafter the sale price of such a car was increased to $1,775; that the car was in good condition at the time it was taken from him and was of the value of $1,775. He also testified that he had bought 15 cars, but had never sold any, and that if he had paid out on this car it would have cost him $1,910. He offered no other .evidence as to the value of the car on January 2, 1930.

Appellant called two witnesses who were doing a large business in the buying and selling of new and used cars. They testified that the value of the car in question was from $900 to $1,000 and that the sale price of such a car, when new, had been reduced $300.

Appellee’s testimony to the effect that the fair cash market value of the car, which had been used for more than three months and had been driven 2,700 or 2,800 miles, was the same as the original purchase price, is unreasonable. Under the evidence in this record we are of the opinion that the fair cash market value of this car, at the time appellant repossessed it under the conditional sales contract, did not exceed $1,000. At that time appellee still owed $1,030 on the note. He had no equity in the car and the judgment cannot be sustained.

Appellee was only entitled to recover the value of his interest in the car, whatever that might be. The value of such interest must be determined by ascertaining the reasonable cash value of the car and taking therefrom the balance due on the note. 26 E. C. L. 1153; 11 C. J. 598; Reinkey v. Findley Electric Co., 147 Minn. 161, 180 N. W. 236; Smith v. Goff & Darling, 29 R. I. 439, 72 Atl. 289; Thos. Goggan & Bros. v. Garner (Tex. Civ. App.), 119 S. W. 341.

In our view of the case, it is unnecessary to decide whether appellant had reasonable grounds for feeling unsafe or insecure, or whether it should have made a demand upon appellee before taking possession of the car. Even if appellant was not lawfully entitled to take possession at the time it did, yet under the evidence in the record appellee was not damaged. The judgment is reversed.

Reversed.

The clerk will insert in the judgment the following: ‘ ‘ The court finds the fair cash market value of the car at the time it was taken from appellee was less than the amount appellee owed appellant and that appellee sustained no damages.”


text:
    John Gianola, Appellee, v. United States Underwriters Company, Appellant.
    Heard in this court at the October term, 1930.
    Opinion filed January 19, 1931.
    Barnabas F. Sears, for appellant; Frank E. Trobaugh, of counsel.

      Pulverman & Cantrell, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

On March 20, 1928, appellant issued a policy of insurance to appellee on his Hupmobile sedan. A few months later he turned that car in as part payment on the purchase of a new Buick car. The latter car was to be delivered between August 15 and September 1, 1928. Before the Buick was delivered, appellee had to go to the hospital at Rochester, Minnesota and before leaving he instructed his wife and daughter to have the insurance transferred to the Buick in case it was delivered before his return. The car was delivered in his absence and the wife called appellant’s agent to her home and told him that they had a new car but she didn’t want to operate it until .they had insurance; that she wanted the same coverage they had under the policy issued on the Hupmobile. That conversation occurred on September,, 7, 1928, and appellee’s wife asked the agent if the insurance would be in force from that day and he assured her it would. At that time she had her daughter write a check to the agent for $20 to apply on appellee’s insurance account. These facts were proven by appellee’s wife and daughter and by appellant’s agent.

The agent neglected to write appellant until September 13, 1928. On that day he mailed a letter to appellant in which he referred to the policy on the Hupmobile and that appellee had purchased a new Buick, trading in the other car, and requested a transfer of the insurance to the new car, with the same coverage. He also informed appellant as to the model, horsepower, serial number, motor number, cost of car, etc. He also stated that the new policy should be dated September 7, 1928, as that was the date he was requested to write the same. It does not appear from, the evidence at what time in the day on September 13 that letter was mailed to appellant. On the evening of that day the Buick, while being driven by appellee’s daughter, was badly damaged in a collision with an embankment, she. having lost control of the car. On the trial it was stipulated that the damage to the car was $945. The trial resulted in a verdict and judgment for that amount.

The insurance policy on the Hupmobile contains the following provision: “The protection granted under this policy may be transferred to another car by giving written notice to the underwriters, accompanied by a description of the second car and an additional premium, if one is required by the rates then in force.” Under that provision appellee was not required to present a new application when he desired that the insurance he transferred from one car to another. All that he was required to do was to give written notice to appellant with a description of the second car and an additional premium if one should be required. In the case at bar there is no evidence that an additional premium was required by the rates then in force. On September 7, 1928, appellee, through his wife as his agent, requested appellant to transfer the existing insurance to the new Buick car.

Appellant insists that it is not liable for its agent’s acts in this matter because the contract between it and its agent contains the following provisions: “The said agent shall.not make, alter, or discharge any application, policy or form, nor contract any debts against the first party.- .- . . His duties and responsibilities are only to solicit applications for insurance and remit the premiums to the home office, and he agrees not to solicit business for any other auto insurance concern.” The contract also provides that the said agent shall receive 25 per cent of the premium hs his compensation. Under that part of the contract above quoted, the agent clearly had the right to receive an application, collect the premium, retain his portion thereof and remit the balance to appellant. In the case at bar we think no formal application was required of appellee to transfer the insurance from one car to another. In such a case an additional premium may be required and we are of the opinion that appellee and his agent were fully warranted in applying to appellant’s agent for the transfer of the insurance. The agent in accepting the request for a transfer and communicating the same to appellant was not attempting to make a new contract or to alter or discharge any existing contract.

Appellant’s agent testified that he had all of the necessary information for the transfer of the insurance in his office for at least four days before the accident. He mailed a formal notice to appellant on September 13. That notice contains all of the information which the appellant required appellee to furnish in order to effect a transfer from one car to another. Appellant did not see fit to inquire of its agent whether that notice was mailed before or after the accident. We think it is a fair inference that it was mailed before the accident. If so, the letter of the policy was complied with. Manufacturers & Merchants’ Mut. Ins. Co. v. Zeitinger, 168 Ill. 286.

Under the evidence the jury, acting as reasonable men, could not have reached a different verdict. It is therefore unnecessary to consider the alleged errors urged by appellant. Reason and justice demand that appellant should be held liable for appellee’s loss and damage. The judgment is affirmed.

Affirmed.


author: Mr. Justice Fulton

text:
    Reliance Agency Corporation, Appellant, v. Andrew J. Roberts et al., Trading as Roberts Insurance Company, Appellees.
    Heard in this court at the October term, 1930.
    Opinion filed January 19, 1931.
    White & Quindry, for appellant.
    Hosea Y. Ferrell, for appellees.
   Mr. Justice Fulton

delivered the opinion of the court.

Appellant filed its bill in the "city court of Marion for an accounting and for payment of balance claimed to be due from appellees on account for insurance premiums.

The bill alleges in substance that on January 1,1927, appellees entered into a contract with the Auto Owners Agency, Incorporated, a reciprocal insurance company at Bloomington, Illinois, by which appellees were to receive a commission of 35 per cent of gross premiums, on all business written for the company and that they continued to write business for the Auto Owners until the month of September, 1928; that they had written a large number of policies and collected in a large sum of money, the exact amount being unknown; that some of the policies had been canceled and return premiums paid; that no settlement of or premiums had ever been made between appellees and the Auto Owners Underwriters of Bloomington, Illinois; that the accounts were so intricate and complicated that it would be impossible for a jury to unravel them, and an accounting was necessary to determine the exact amount due; that on April 11, 1929, appellant and Auto Owners entered into a contract, whereby appellant reinsured the policies of Auto Owners Underwriters, assumed all unearned premiums and agreed to carry all policies then in force made by Auto Owners to their expiration, and also to pay all outstanding losses; that by said contract appellant received all of the assets of Auto Owners including the accounts of Auto Owners Underwriters against appellees; that appellant had made repeated demands on appellees for an accounting and for payment of amount due, but appellees had refused to account or pay any sum whatsoever.

Appellees filed a joint and several answer, denying the material allegations of the bill, and further set up an affirmative defense based on the following alleged facts: That, on December 1,1927, one H. P. Gardner of Bloomington, Illinois, who sometimes did business as H. P. Gardner & Company, was indebted to appellees in an amount in excess of $12,000; that on December 16, 1927, and for some time prior thereto, H. P. Gardner had charge of the affairs of Auto Owners Underwriters, and that he conducted the business of said company under his own name and sometimes under the name of Auto Owners Agency; that on December 16, 1927, H. P. Gardner requested appellees to write automobile insurance policies in Auto Owners Underwriters, agreeing that for all such insurance so written, appellees would receive 35 per cent of said business and that any amount which might be due from appellees for premiums on any and all policies so written would be assumed and paid or caused to be paid by the said H. P. Gardner, and he would be given credit for such amounts on his indebtedness to appellees; that the amount of said commissions and the agreement by H. P. Gardner to pay such premiums was the only condition upon which appellees would enter into such contract.

The answer further states that on February 6, 1929, the net amount due from appellees, by reason of policies written in said company, was the sum of $2,966.26, and that on that date Auto Owners Underwriters drew a draft on appellees for said amount through the First National Bank of the City of Marion; that on the same date said Auto Owners Underwriters deposited said draft in the American State Bank of Bloomington, and on said date were given credit by said American State Bank for said sum of $2,966.26; that Auto Owners Underwriters received full amount for said draft so drawn on appellees and used said sum in payment of debts and obligations of said company; that said draft was not paid by appellees but on April 22, 1929, was paid by said H. P. Gardner.

Appellant insists that H. P. Gardner was heavily indebted to them on April 22, 1929; that the payment to the American State Bank to take up drafts on said date was a voluntary payment in behalf of appellant, and there was no instruction or direction: by H. P. Gardner to pay the account of appellees and that therefore appellant had a right to apply the payment wherever it chose and to collect in full the account of appellees.

Appellees contend that appellant had a full, complete and adequate remedy at law; also that H. P. Gardner on April 22, 1929, specifically directed payment of this draft, which paid the account of appellees and that the entire proceeds therefrom, amounting to $2,966.26 was paid out in behalf of appellant.

We believe the testimony tends to support the contention of the defendant. It is clear that H. P. Gardner transacted all the business for Auto Owners Agency most of the time in his own name or that of H. P. Gardner & Company. On February 6, 1929, the Auto Owners were overdrawn at the American State Bank and on that day deposited $6,768.31, which included the draft of $2,966.26.

The Auto Owners were given credit for this amount and it was used in payment of its obligations. On April 11, 1929, the Auto Owners were taken over by appellant. On April 22, 1929, the draft was returned unpaid. Adolph Wochner, cashier of the American State Bank, notified Gardner of the situation; Gardner paid the draft out of his personal account and the receipted draft was delivered to him, and the account of the Auto Owners was closed in that bank.

At no time during the period appellees were doing business with Auto Owners were they called upon to make payment of the premiums upon policies written by them until the draft of February 6, 1929.

' Under this state of facts we do not believe that the transaction could be termed a voluntary payment made to a creditor, and controlled by the principles laid down in the case of Monson v. Meyer, 190 Ill. 105.

In Voltz v. National Bank of Illinois, 158 Ill. 532, where the bank paid a check which it was under moral obligations to pay, the court held that the bank was not a mere volunteer, and stated the rule as follows: “A person who, though not obliged to do an act, yet has an interest in doing it, is not to be regarded as necessarily and simply a volunteer.”

The decree of the city court of Marion, dismissing the bill of complaint for want of equity, will be affirmed.

Affirmed.