author: Mr. Presiding Justice Matchett

text:
    The People of the State of Illinois ex rel. James Todd, Appellee, v. Board of Education et al., Appellants.
    Gen. No. 34,461.
    Heard in the first division of this court for the first district at the June term, 1930.
    Opinion filed July 10, 1930.
    Charles S. Cutting, for appellants.
    Angus Roy Shannon, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This appeal is by defendants from a judgment entered in an action of mandamus. The action was brought against the board of education and its secretary upon the relation of James Todd, the attorney for said board.

The petition prays that the board may be required to expunge from its record an order adopted November 13, 1929, by which the board directed that Frank S. Righeimer should be placed in full charge of condemnation matters in its law department, including the trial of condemnation cases, and that Thomas Y. Sullivan should be placed in full charge of tax matters, including the trial of tax cases.

Respondents answered the petition; petitioner demurred to the answer. Respondents made an oral motion to carry back the demurrer. The court denied this motion and sustained the demurrer to the answer and entered judgment that the order adopted by the board on November 13, 1929, should be expunged from its record; “that said Board of Education shall recognize the full unrestricted authority and power of the Attorney of the Board of Education as the same is prescribed by statute, to have general charge and control (subject to the approval of the Board of Education of the City of Chicago) of the Law Department thereof and of all the litigation and legal questions of the public school system of the City of Chicago and such other matters as shall be referred to the Law Department by the said Board and to recognize and acknowledge said petitioner in his official capacity as the proper and legally constituted Attorney to attend to all matters without interference (except in the matters expressly otherwise set forth in section 130 of the statute) with the petitioner as the attorney of the public school system in the performance of said matters, and that the writ shall issue accordingly.”

The material facts disclosed by an examination of the pleadings are few and simple. On March 14, 1927, petitioner Todd was duly appointed attorney for the board of education. Since that time he has continuously acted as said attorney and he. is entitled to all the prerequisites and privileges and clothed with all the powers conferred and duties imposed upon the attorney for the school board by the statute of the State and the rules of the board of education enacted pursuant thereto.

On March 11, 1929, petitioner made certain recommendations in writing to the board, in which he stated that it was his judgment that the personnel of the law department could be reduced without interfering with its efficiency. He recommended the elimination of a number of positions of special assistants and assistant attorneys, including the position of Mr. Bigheimer, who was then acting as the assistant attorney in charge of condemnation proceedings. The board took no action on these recommendations other than to file the same, and on July 27, 1929, thereafter the petitioner again sent a formal communication to the board of education, in which he called the attention of the board to the fact that he had made recommendations providing for the elimination of four assistant attorneys. He also stated to the board that the term of employment of one of these assistants, Frank S. Bigheimer, expired on March 14, 1928, and that Mr. Bigheimer therefore stood in a different position from the other three. He stated:

“It is my duty, as the executive officer in control of the Law Department, to terminate his employment at once as being unnecessary and involving expense which should be avoided. I, therefore, am terminating his employment as of July 31, 1929, and reporting to you this action, so that you may be officially apprised thereof.
“My action in this regard terminates the matter and requires no action on your part, unless you desire to override it, which, under the Statutes, you are enabled to do by a two-thirds vote of all the members of the Board.”

On the same day petitioner wrote to Mr. Bigheimer:

“This is to notify you that your services as Special Assistant Attorney for the Board of Education, which position you have been occupying, first, under an employment of one year expiring on March 14, 1928, and since then by monthly service, are no longer necessary, and I hereby terminate them as of the date of July 31, 1929, after which period, you will no longer be in the employ of the Board, or entitled to perform the duties of the position.”

On August 6, 1929, petitioner by a communication in writing to Mr. Thomas V. Sullivan informed him that petitioner had assigned him to take care of condemnation matters of the office in co-operation with petitioner, and on the same day he reported this action to the board, as follows:

“Since the discontinuance of the services of Mr. Frank S. Bigheimer in this Department, as Special Attorney, as of July 31, 1929, I have assigned Mr. Thomas V. Sullivan, one of the assistants in this office, to take charge of the condemnation — the work formerly done by Mr. Bigheimer.
“Mr. Sullivan is an able trial lawyer and possesses every qualification necessary for taking over this branch of the legal work, and I respectfully recommend that his salary be increased from $7,500.00 to $10,000.00 a year, to begin September 1,1929.”

This communication was placed on file with others pertaining to the same subject. On November 13,1929, the board took the action which petitioner asks to have expunged. At that time James A. Hemingway, a member of the board, made two motions, as follows:

“I move that until this Board otherwise orders that special assistant attorney Frank S. Bigheimer shall continue to be in full charge of condemnation matters, including the trial of condemnation cases, and such other matters as are from time to time referred and committed to .him.”
And
“I move that until this Board otherwise orders that special assistant attorney Thomas Y. Sullivan shall continue to be in full charge of tax matters, including the trial of tax cases, and such other, matters as are from time to time referred and committed to him.”

Both these resolutions were adopted over the objection of petitioner. On the same date the board of education appointed and elected Frank S. Righeimer special assistant attorney for said board, for a period of two years at a salary of $10,000 per annum. This appointment and election were made against the recommendation of petitioner and was accomplished by a two-thirds vote of all the members of the board. On the same date the board appointed and elected Thomas V. Sullivan special assistant attorney for said board for a period of two years and likewise fixed his salary at the rate of $10,000 per annum. This appointment and election were also made without the recommendation of petitioner and was accomplished by a two-thirds vote of all the members of the board.

It is the contention of the board that it has full statutory authority not only to elect assistant attorneys over the objection of its own attorneys but also “to direct that such assistants continue to perform the work theretofore performed by them.” The question involves a construction of the so-called Otis law as amended, under which the board of education of the City of Chicago undertakes to operate and maintain a system of free schools (Cahill’s St. ch. 122, ¶ 152; Smith-Hurd’s Ill. Rev. Stat. 1929, chap. 122, p. 2589.)

Section 128 of said chapter provides:

“Each city having a population exceeding 100,000 inhabitants shall constitute one school district which shall maintain a thorough and efficient system of free schools, which shall be under the charge of a board of education, which shall be a body politic and corporate, by the name of ‘Board of Education of the City of........’ ”

Section 129 provides, in part, as follows:

‘ ‘ The hoard of education shall by a vote of a majority of the full membership of the board appoint, as executive officers, a superintendent of schools, who shall have general charge and control, subject to the approval of the board, of the education department and of the employees therein of the public schools; a business manager, who shall have general charge and control, subject to the approval of the board, of the business department and of the employees therein of the public schools; and an attorney, who shall have general charge and control, subject to the approval of the board, of the law department and the employees therein of the public school system. Each of said executive officers shall hold his office for a term of four years. The board also may appoint, or provide for the appointment, of such other officers and employees as it may deem necessary, pursuant to the provisions of the Civil Service Law, except as otherwise provided herein.
“The board shall, subject to the limitations contained in this act, prescribe the duties, compensation and terms of office of all officers. The board also shall, subject to the limitations contained in this act, prescribe the duties, compensation and terms of employment of all of its employees and determine which of its officers and employees shall give bond, on what conditions, and in what amount.
“The appointment and removal of the superintendent of schools, the business manager and of the attorney, and all assistant attorneys, shall not be subject to the civil service law. The superintendent of schools, the business manager and the attorney shall be removed during the term-of employment only for cause, by a vote of not less than a majority of all members of the board, upon written charges to be heard by the board after thirty days’ notice, with copy of the charges, is served upon the person against whom they are preferred, who shall have the privilege of being present, together with counsel, offering evidence, and making defense thereto; but pending the hearing of such charges the person charged may by a like majority vote be suspended by the board: Provided, however, that in the event of acquittal, such person shall not suffer any loss of salary by reason of the suspension. The action and decision of the board in the matter shall be final.”

Section 130, after providing with reference to the superintendent of schools and business managers, further declares:

“The attorney shall have charge and control, subject to the approval of the board of education of the law department, and of all litigation, legal questions, and such other matters as shall be referred to the department by the board. Appointments, promotions and discharge of assistant attorneys shall be made by the board of education only upon the recommendation of the attorney, unless it be by a two-thirds vote of all the members of the board.
“The superintendent of schools, the business manager and the attorney may be present at all meetings of the board of education, and shall have a right to take part in its discussions and deliberations, but shall have no vote.”
Section 131 provides that the board may, subject .to the limitations contained in the act, “establish bylaws, rules and regulations, which shall have the force of ordinances, for the proper maintenance of a uniform system of discipline for both employees and pupils, and for the entire management of the schools, and may fix the (school) age of pupils, the minimum of which in kindergartens shall not be under fouij years and in grade schools shall not be under six years. ’ ’

An examination of the statute discloses that it was the intention of the legislature to vest in the superintendent of schools, in the business manager and in the attorney for the board, when once elected, a status of dignity and independence exceeding that conferred upon ordinary employees of the board, and petitioner contends that the statute as amended has fundamentally changed the nature of the powers and duties of the school board of the City of Chicago; that it “now legally exists, only as an ‘approval’ body, and does not exist as a body having ‘general charge and control’ of the Education, or the Business, or the Law Department.”

On the other hand, the board contends that all the duties and powers of these officers are subordinate and subject to the control by it and that a two-thirds majority of the board has plenary and absolute control of these different departments. It follows as a matter of course on respondents’ theory that the hoard had the power not alone to appoint Mr. Righeimer and Mr. Sullivan assistant attorneys but to give specific directions as to the particular work which they should perform in the law department. The judgment of the court challenges this construction of the statute in only one respect. The right and power of the hoard by a two-thirds vote and over the objection of the attorney for the law department to fix their salaries, is not denied, but the power and right to direct and control the internal arrangements of the law department, even to the extent of directing as to the class of cases which should be assigned to a particular attorney are challenged by that judgment.

In People v. Faherty, 306 Ill. 119, the Supreme Court of this State had occasion to consider and construe a somewhat similar statute as applied to the hoard of local improvements of the City of Chicago. It appeared in that case that the legislature by statute abolished the office of city attorney which had theretofore existed, and directed that the duties theretofore imposed upon that office should be conferred upon the corporation counsel of the city. The board of local improvements of the City of Chicago by resolution proceeded to employ its own attorney to provide legal services in connection with special assessments originating with said board. A petition for mandamus by the corporation counsel of the City of Chicago was filed for the purpose of compelling a recognition of his alleged rights in that respect, and the court sustained a judgment in favor of the petitioner, stating:

“Our conclusion therefore is that the board of local improvements was unauthorized to appoint its own independent attorney, take from the corporation counsel duties imposed on him by law and confer them on an attorney of its own appointment, who is in no way connected with the law department of the city.”

In People v. Severinghaus, 224 Ill. App. 221, this court had before it a case in which the board of education by the adoption of certain rules undertook to take away from the superintendent of schools practically all the duties, responsibilities, prerogatives and authority conferred upon his office by the statute. This court held that these were as much a part of the office as were the title and salary and room which the superintendent occupied. We held that the board could not take away from the superintendent the substance of the office, leaving him merely an empty shell.

Here the controversy between the parties turns upon the construction which must be given to the phrase often recurring in the statute, “subject to the approval of the board of education.” Respondents contend that its effect is to give to the board unlimited and uncontrolled power. Petitioner contends that it takes from the board all initiatory power. It is not an easy matter to draw the exact line which marks the boundary between the authority of the attorney for the board on the one hand and the board itself on the other. It is unnecessary to do so further than to state that a consideration of the whole statute negatives the idea that either was to have unlimited and uncontrolled power and authority.

In People v. Faherty, supra, referring to a similar contention upon the part of the corporation counsel of the City of Chicago, the court said:

“While it is our view that the corporation counsel is charged with the duty of attending to law business of the board originating from a local improvement, that duty does not exempt him from control and direction by the board. The board has charge of the making of local improvements, and all legal proceedings and litigation connected therewith are to be conducted by the corporation counsel under the direction and control of the board. ’ ’

A similar rule, we hold, is applicable here, but there is no necessity that such a rule should be held to carry with it by implication the power and the authority to specifically direct the internal operations of the law department which is by virtue of the statute placed in the duly qualified and elected attorney for that department. To permit the rule to be extended thus far would be to grant to the board absolute and uncontrolled power, which clearly was never intended to be given to it. The law contemplates that the board when appointed should be independent of the power which chose and elected it. It also expresses the intention that the rights and powers of the attorney for the board in the transaction of legal business in line with the general policies of the board should be uncontrolled and undirected by the board in so far as the •internal organization of the office and control of assistants are concerned. The law contemplates and the public have a right to expect that the board and the attorney will co-operate, each recognizing the rights .of the other to the end that the public may have the ■benefits of an efficient administration of school affairs.

For the reasons indicated the judgment is affirmed.

Affirmed.

O’Connor and McSurely, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Barry

license: Public Domain

text:
    Edith Alexander, Appellee, v. Brewerton Coal Company, Appellant.

      Heard in this court at the October term, 1929.
    Opinion filed February 12, 1930.
    Angerstein & Angerstein and W. Joe Hill, for appellant.
    A. C. Lewis and Roy C. Martin, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellant operates a coal mine in the outskirts of West Frankfort immediately west of Taft Street. That street is 20 feet wide and, near the mine, is crossed by five railroad tracks. At times appellant sets railroad cars at the tipple by means of a steel cable which winds on a drum and crosses the street, twice, at different places. The drum is operated by steam from the engine boilers and-is controlled by a man in charge who operates a lever. The cable is only in the street when a car is to be moved. .

On December 15, 1927, appellee was walking south on Taft Street and was struck by the cable and thrown upon the ground with great force. She sued and recovered a verdict for $6,000 and on a motion for a new trial, remitted $2,000, and a judgment for $4,000 was entered in her favor.

Appellant contends that the court erred in overruling special demurrers to the amended additional counts. After the demurrers were overruled, appellant filed the general issue and the law is well settled that by pleading over it waived the ruling of» the court. If appellant thought the declaration was so defective that it would not support the judgment, that question could have been presented to this court by a proper assignment of error even though the demurrers were overruled. Chicago, R. I. & P. Ry. Co. v. People, 217 Ill. 164-172; Tykalowicz v. Metropolitan Life Ins. Co., 249 Ill. App. 280. No such error has been assigned. The legal sufficiency of a declaration is not raised by a motion for directed verdict. Swift & Co. v. Ruthowski, 182 Ill. 18; Klofski v. Railroad Supply Co., 235 Ill. 146.

It is argued that the court erred in refusing to direct a verdict of not guilty. Appellant had placed the cable across the street and was using it at a time when there was much steam and noise and when people were likely to be passing upon the street. The man in charge of the drum testified that there was a lot of steam escaping and although he was within 10 feet of the street he did not see the accident because of the steam. Other witnesses testified as to the steam, the noise from its escape and from the running of the engine. Appellant offered some evidence tending to show that an attempt was made to warn appellee, but it is quite apparent that if any warning was given it was not heard or seen. In the state of the proof, the questions of negligence and contributory negligence were questions of fact for the jury and we would not be warranted in setting aside the verdict.

It is argued that the court erred in its rulings upon the admission of the testimony of Dr. "Williams; that the doctor examined appellee more than a year after the accident solely for the purpose of testifying at the trial; that the hypothetical question did not embody material, undisputed facts and included subjective facts. The abstract shows that during the taking of the doctor’s testimony five objections were made and that the rulings and exceptions were as follows: "Objection overruled. Exceptions by defendant.” “Objection overruled,” “Objection overruled. Exception.” “Motion to strike overruled. Exception.” “Objection overruled. Exception.” In this state of the abstract the question as to whether the court erred in its rulings is not properly preserved and is not open for our consideration; Dickhut v. Durrell, 11 Ill. 72; Dufield v. Cross, 13 Ill. 699; Arcade Co. v. Allen, 51 Ill. App. 305; Baker v. Newbury, 63 Ill. App. 405; Schanzenbach v. Brough, 58 Ill. App. 526; Lewinsohn v. Stevens, 70 Ill. App. 307.

It is argued that the court erred in giving to the jury the following instruction: “The Court instructs the jury that in reading these instructions to you the Court does not intend to even intimate what in the judgment of the Court your verdict should be.” That was the only instruction given on behalf of appellee. It was a proper instruction and could not in any way mislead the jury. It is argued that the court erred in refusing appellant’s six refused instructions. The court gave the jury 23 instructions on behalf of appellant, which fully covered every phase of the case. On such a simple issue the court should not have been called' upon to pass upon 29 instructions. In so far as the refused instructions were correct statements of the law they were fully covered by the given instructions.

It is argued that there was a variance between the proof and the averments of the declaration. That point was not raised in the trial court and cannot be considered. Appellant assigned error to the effect that the judgment is excessive. The only statement found in appellant’s brief and argument in regard to that matter is as follows: “The judgment was excessive.” No argument is presented to the effect that appellee’s injuries were not of such a character as would warrant a verdict and judgment for $4,000. No reversible error having been pointed out, the judgment is affirmed.

Affirmed.


author: Mr. Justice Newhall

text:
    Anna Loan & Investment Company, Inc., Appellant, v. L. C. Dorris et al., Appellees.

      Heard in this court at the October term, 1929.
    Opinion filed February 12, 1930.
    A. J. Pickrell, Frank E. Trobaugh and Moses Pulverman, for appellant.
    D. F. Moore, for appellees.
   Mr. Justice Newhall

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of Franklin county dismissing appellant’s bill for want of equity.

Appellant’s suit was brought to foreclose a building and loan mortgage. To appellant’s amended bill all of the defendants in the court below made default except appellee Dorris, who appeared and filed special pleas and answer to the bill.

Appellant was organized as a building and loan association under the Act of 1879 on April 15, 1891, and has since been engaged in such business at Anna, Illinois.

On July 3, 1919, appellee' L. 0. Dorris signed an application addressed to the board of directors of appellant at Anna, Illinois, for a loan of $1,600, which was in substance as follows:

“Having bid on sixteen shares for a loan of $1,600, being the par value of 16 shares of series 57 of the capital stock of said company, at a premium of 1 per cent per month, I offer you the following described property as security for the same.”
(Description of real estate in question)
"Should the loan be granted I hereby agree to comply wdth all of the requirements of the company as defined by its charter and by-laws.
(Signed) L. C. Dorris.
“Anna, Ill., July 3, 1919.”

Subsequently, during the month of July, a building committee of appellant addressed a communication to the board of directors of appellant, advising them that they had examined the property offered by Dorris as security of an advanced loan of $1,600, and reported that they considered it ample security for the loan applied for. On July 3,1919, Dorris made, executed and delivered a bond for Jhe sum of $1,600 for money loaned to him under the constitution and by-laws of appellant on account of 16 shares of the capital stock owned by him and agreed to repay the same according to the by-laws of appellant; the monthly payments thereon being eight dollars for dues and $16 monthly premium until the capital stock should reach par value. On the same day Dorris signed and. delivered a mortgage to appellant on real estate situated in the City of West Frankfort, Illinois, as described in the loan application.

Dorris paid monthly payments for six and one-half years aggregating $1,860.70 on account of said loan and on December 29, 1927, being 28 months in arrears, the board of directors of appellant passed a resolution forfeiting the stock and directing foreclosure proceedings. The answer of Dorris denied all of the allegations of the bill as to the making of the loan, note and mortgage and issuance of the stock certificate and denied all indebtedness; then sets out usury as an affirmative defense; that appellant could only contract for premiums, fines and interest on loans by strict compliance with the building and loan law and its by-laws; that the premium was not fixed according to statute or by-laws; that the premium contracted for amounted to 12 per cent per annum; that the said loan was and is usurious and that the pretended premium was added interest and a shift and device to exact interest in excess of lawful interest.

The decree found that appellant had not by its bylaws dispensed with the loaning of its money for bids in open meeting; that the money loaned was not offered for bids in open meeting nor loaned to the member offering the highest premium for the preference or priority of the right to a loan of said money, and that said loan was usurious and the pretended premium was added interest and a shift and device to exact interest in excess of seven per cent per annum; that Dorris had paid on the loan the sum of $1,860.70 and found that there was nothing remaining due and unpaid on the loan and dismissed the bill for want of equity.

Appellant contends that the record shows that the premium in this case was fixed in strict accordance with the statute and by-laws of the association.

The exemption of homestead and loan associations from the operation of the interest laws applies only to the interests, fines and premiums accruing according to the provisions of the act providing for their organization. Cobe v. Guyer, 237 Ill. 568; Borrowers’ & Investors’ Building Ass’n v. Eklund, 190 Ill. 257.

Since the total amount to be paid for the use of the money by the mortgagor Dorris exceeded the legal rate of interest, the transaction in question must be held to be usurious under the general laws of the State unless the premium required to be paid was determined in the manner provided by the Homestead and Loan Association Act. The modes of determining such premiums are set forth in section 19 of the act, Cahill’s St. ch. 32, ¶ 393, and were either by bids for the preference or priority of loans in open meeting, or, if the association had by its by-laws dispensed with the offering of its money for bids in open meeting, by the priority of the application for loans to its stockholders. Cobe v. Guyer, supra.

Appellant had not by its by-laws dispensed with the offering of its money for bids in open meeting of the board of directors. Article 8 of appellant’s by-laws provides that the board of directors shall, on the fourth Wednesday of each month, offer the preference for the money that may be in the treasury for loan to the highest bidder for priority of right. Appellee Dorris testified that he did not appear before the board and make a bid for preference of the loan in question. On July 3, 1919, appellee signed an application addressed to the board of directors of appellant, for a loan in which it was recited that he had bid for a loan of $1,600 at a premium of one per cent per month, offered as security the real estate in question, and agreed that should the loan be granted by the board of directors, he would comply with the charter and bylaws of the association. On the day of the date of the application the bond and mortgage in question were signed and acknowledged. Sixteen shares of stock of appellant were issued to appellee and by him indorsed, which stock bears date July 15, 1919. Appellant’s home office was located at Anna, in Union county, Illinois, and the record shows that appellant had a representative at West Frankfort who supervised loans. The secretary of appellant testified that he did not know whether Dorris came to the office of appellant on July 3, 1919, and there made the application for loan; that the board did not meet at West Frankfort and that the application was not executed at the office of the company; that Dorris was not at the office of the association in Anna to make his bid and the secretary explained that this was done for the convenience of the borrower, in view of the fact that Dorris lived in West Frankfort; that Dorris wanted a loan and appellant sent a party to look at the property offered for security, the same being sufficient, the borrower was not required to wait until the third Tuesday of the month (being presumably the regular monthly meeting of the board of directors) in order to get his money, but the loan could be closed on that day; that the foregoing was the method of transacting business of appellant away from the home office; that the application, note and mortgage were executed at West Frankfort and not at a meeting of the board of directors of appellant. The by-laws provide that the board of directors shall hold regular monthly meetings on the fourth Wednesday of each month, to loan the money in the treasury, and transact all other business relating to the company.

No record or testimony was offered in evidence showing that the board, in open meeting, offered the money in the treasury for a loan to the highest bidder for a priority of right as provided for by the by-laws and statute. Where loans are not made upon bids made for the preference or priority of loan, in open meeting of the board of directors, and the association does not offer its money to be loaned for the highest premium which might be bid for it, and the association has not adopted by-laws dispensing with the offering of its money for bids in open meeting, then the premiums upon such loans do not become valid according to the provisions of the building and loan act. Cole v. Guyer, supra.

The decree found that appellant had not by its bylaws dispensed with the loaning of its money upon bids in open meeting of the board; that the money loaned to Dorris was not offered upon bids in open meeting, nor loaned to the member offering the highest premium for the preference or priority of the right to a loan of said money, and the evidence supports these findings of the decree.

Appellant contends that Dorris, having been benefited by receiving the loan from appellant, cannot defend against the premium fixed in the mortgage on the ground of legal informalities or that the powers of appellant were improperly exercised in making the loan. In Free Home Building, Loan & Homestead Ass’n v. Edwards, 223 Ill. 126, the method of making loans and charging premiums was prescribed by resolution adopted by the directors, instead of adopting a by-law dispensing with the offering of money for bids in open meeting of the directors, and the Supreme Court held:

“The board of directors had no more power under the statute to adopt such method of making loans than the attorney and secretary of the association would have had, and to hold that because the board of directors adopted and pursued that method for a number of years, during which time appellees negotiated a loan and paid the premiums and interest thereon, would legalize the transaction, would be to nullify the statute. The association is in no better position than it would have been if there had been no statute providing a method of making such loans. The authorities are clear that where a corporation has no power to contract, performance on either side will not give the unlawful contract validity. (National Home Building and Loan Ass’n v. Home Savings Bank, 181 Ill. 35.) Usury is prohibited by our statute, and while homestead and loan associations are authorized to charge more than the rate of interest allowed by our interest laws, they can only do so by a compliance with the act under which they are incorporated. (Borrowers’ and Investors’ Building Ass’n v. Eklund, 190 Ill. 257; Jamieson v. Jurgens, 195 id. 86.) It is just as illegal and contrary to public policy for associations like appellant to charge more for a loan than is allowed by our interest laws, without a compliance with the provisions of the statute authorizing them to do so, as it would be to charge a usurious rate in the absence of the statute.”

Appellant further contends that the defense of usury was not sufficiently pleaded by appellee. While the answer is somewhat indefinite in its charges of usury, yet we hold the allegations were sufficient to raise the question of usury and both parties offered evidence relating to the regularity and legality of the method adopted by appellant in the making of the loan in question which would determine whether or not appellant was entitled to lawfully collect the premium in question. No objection was made in the court below that the answer was not sufficiently definite in its charges of usury. The evidence was offered without the objection being made that is now raised for the first time. The only objection made in the trial court to the evidence was that Dorris was estopped in attempting to prove the business, relating to the loan, was transacted in West Frankfort and not at Anna, the home office of appellant. Appellant argues we should indulge in the presumption that Dorris’ application for a loan was acted upon in a regular meeting, that it is not necessary for a bidder to be personally present before the board, and it is sufficient if only one person bid for the loan. We cannot indulge in presumptions as to what transpired where the record shows what did occur. There is no competent evidence tending to show there was any attempted compliance by appellant with the statute or its by-laws with reference to the procedure required in order to enable it to lawfully charge appellee with premiums in excess of lawful interest.

It is finally contended that the court erred in not allowing the association interest at seven per cent on the loan. The proof is undisputed that appellee’s original loan was $1,600 and that he had repaid to appellant the sum of $1,860.70. So long as any part of the original debt remains unpaid the debtor may insist upon the deduction of the usury and only the balance of the principal, remaining after the application on the principal of all payments, whether of principal or interest, can be recovered. Cobe v. Guyer, supra.

We are of the opinion that the decree of the circuit court of Franklin county is in accordance with the law and evidence and that the same should be affirmed.

Affirmed.


text:
    Villa Taylor, Administratrix of the Estate of Albert Taylor, Deceased, Appellee, v. Alton & Eastern Railroad Company, Appellant.

      Heard in this court at the October term, 1929.
    Opinion filed February 12, 1930.
    Rehearing denied March 17, 1930.

      Keefe, Bandy & Listeman, for appellant.
    M. R. Sullivan, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

Appellant prosecutes this appeal from, a judgment rendered against it in the circuit court of Madison county for the alleged wrongful death of appellee’s intestate.

The first count of the declaration charged appellant with general negligence in the operation of its train; the second, that the trainmen failed to give warning of the approach of the train and that it had insufficient headlights; the third charged a statutory violation in that appellant’s train did not have a lighted headlight on its engine; the fourth charged failure to ring a bell or whistle as provided by statute, and the fifth or additional count charged failure to maintain a crossing watchman.

Plea of general issue was filed by appellant and the evidence on the part of appellee tended to show the following facts:

On September 22, 1928, the deceased and a number of other persons became passengers in a truck which was operated by one Mathews to carry persons from Granite City to Tri-City Park, where a religious meeting was being held. The truck had a cab in the front end where the driver sat. The truck was equipped with seats which extended lengthwise from the cab to the back end of the truck, and in the space between the seats a number of persons were standing at and prior to the accident.

Appellant’s railroad track extends in an easterly and westerly direction across what is known as the Edwardsville Road. The track west of the highway extends at a slight angle, making a curve as the railroad approaches from the west. There were five railroad tracks that intersected the highway, the third and fourth belonging to appellant and the remaining tracks being owned by other railroads. The accident happened about 7:30 in the evening, it being dark at the time. On the night in question appellant was operating one of its freight trains, consisting of an engine and 57 freight cars, in an easterly direction over the crossing. The position of the engine was reversed, the head of the engine facing west and pulling the freight cars. The tender was attached to the rear of the engine and reached the crossing first as it traveled east.

The Edwardsville Eoad was a concrete highway, being part of State Highway No. 4; traffic upon same was quite heavy both day and night, and at and prior to the collision there were a number of automobiles traveling in both directions over the crossing. Eight witnesses for appellee, who were riding in the truck, testified that there was no headlight on the front of the train as it approached the crossing and that they did not hear any bell or whistle until the train was within a few feet of the crossing, at which time the truck was about to cross the railroad track.

Twentieth Street intersects the Edwardsville Eoad a few hundred feet north of the railroad crossing and at this point the truck had made a stop. While the truck was at Twentieth Street, an automobile, driven by appellee’s witness Patton, drove south on the Edwardsville Eoad and the truck followed the Patton car towards the railroad crossing. Another car, driven by appellee’s witness Stark, passed the truck about 75 feet north of the railroad crossing. Patton and Stark testified that there was no light on the front end of the tender and that they heard no warning of any kind. The front end of the tender struck the truck on the right-hand side, demolishing the truck. The occupants were thrown to the ground and appellee’s intestate was run over by the wheels of the engine, causing his death. At, or just prior to the collision, the engineer applied the brakes and the train was stopped after running about two car lengths east of the crossing. Prior to the accident the deceased was seated on the east side of the truck about eight feet from the cab and was facing towards the west. The speed of the truck was estimated by the witnesses for the appellee at from 10 to 15 miles per hour on the highway as it neared the crossing and the speed of the train at from 12 to 15 miles per hour.

Testimony on behalf of appellant consisted mainly of its trainmen, being the engineer and fireman and two brakemen who were riding in the cab of the engine. These witnesses testified that a headlight was burning at and prior to the accident; that the bell had been ringing continuously for a considerable period of time and that a crossing whistle had been given some 500 or 600 feet prior to reaching the crossing. Three other witnesses testified for appellant, one of whom stated that he approached the crossing from a direction opposite that in which the truck was going, and that before the truck reached the crossing he heard the whistle and saw the headlight on the tender. The witness Weston testified that when he was at a point north of the railroad crossing, near Twentieth Street, he heard the train whistle and the bell rung and after-wards heard the crash between the truck and the train. The witness Thelma Wilkins testified that she was riding in the truck and that as the truck arrived at the crossing she looked around in the direction the train was coming from and saw a light.

At the conclusion of appellee’s testimony, and again at the conclusion of all of the testimony, appellant made a motion for a directed verdict, which was denied. The case was submitted to the jury and a verdict for $5,000 damages was returned, and after a motion for new trial was overruled judgment was entered upon the verdict.

The first alleged error' relied upon for reversal is that the persons riding in the truck were guilty of contributory negligence in failing to use the degree of care 'which one is required to use in approaching a railroad crossing and that the trial court erred in not directing a verdict for appellant because it' is claimed the proof shows that appellee’s intestate was not in the exercise of reasonable care for his own safety. It is urged that if appellee’s intestate had looked, at the time the truck approached the railroad crossing, he could have observed the train in time to have warned the driver of the truck. Whether or not that is the fact depends to some extent upon the degree of light at the time and whether as a matter of fact appellant’s train had such a headlight thereon as would be visible to one who did look before crossing the tracks. In any event a failure to look and listen cannot be said to be negligence as a matter of fact or law since there may be circumstances excusing such failure. Elgin, J. & E. R. Co. v. Lawlor, 229 Ill. 621.

The proof tends to show that several persons, riding in the truck, did not see or héar the approaching train until just before the impact, when it was apparently too late to avoid the accident. At least eight witnesses testified that there was no headlight on the approaching train and that they heard no bell or whistle which would give timely warning of the approach of the train. The deceased was sitting in the rear of the truck about 10 feet from the driver, facing the direction from which the train was approaching, and there is no direct evidence that the deceased was able to see or hear the train in time to have warned the driver. If the other persons riding in the truck, who testified that they saw no headlight on the train and that they did not see or hear the approaching train in the darkness until it was almost in contact with the truck, it would perhaps be a fair inference that the deceased could not. Under the conflicting evidence it was a question of fact for the jury to determine whether or not the deceased was exercising reasonable care for his own safety. The negligence of the driver of the truck could not be imputed to the deceased and the law imposes upon him the duty to exercise such care as a reasonably prudent person would exercise under the circumstances shown by the evidence. Opp v. Pryor, 294 Ill. 538. We are of the opinion that whether or not the deceased was exercising due care at and prior to the accident was a question of fact for the jury to determine under the conflicting evidence in the record, and we cannot say that their verdict in this respect was manifestly against the weight of the evidence.

Appellant also contends the driver of the truck was the agent of the deceased, in that it is to be presumed that the persons riding in the truck had hired the driver for the purpose of transporting these passengers. The evidence merely shows that deceased, with others, was riding in the truck being driven by one Mathews, without any facts being shown from which it could necessarily be inferred that the deceased, or the others riding in the truck, had hired the driver or that the driver was in any way subject to their control or direction. In this state of the record we cannot agree with appellant’s contention that the negligence of the driver, if any, should be imputed to appellee’s intestate. Even if the negligence of the driver caused or contributed to the accident it would not excuse appellant for an injury to one who was without fault or negligence. Nonn v. Chicago City R. Co., 232 Ill. 378.

It is further urged that the court erred in sustaining objections to questions propounded to the witness Taylor as to the contents and allegations of a petition alleged to have been filed by the witness’s attorney in a court in the City of St. Louis, which were supposed to be inconsistent in some respects with his testimony on the stand. The alleged matter of impeachment was not in any paper or writing signed by the witness, and did not come under any rule of evidence for the impeachment of a witness. The declaration was the product of the attorney for the witness and it was not even necessary that proof of the charges be made by the testimony of the witness. Wendzinski v. Madison Coal Corp., 282 Ill. 32.

In appellant’s statement of errors, relied on for reversal, no claim is made that the evidence does not tend to prove the charges of the negligent operation of appellant’s train. In the argument the contention is urged that the believable evidence supports appellant’s theory that the train had a headlight and that the bell and whistle were sounded as required by the statute. The record shows that several witnesses who were riding in the truck, as well as three others who were at the crossing just before the accident, took issue with the trainmen as to their version of the warning signals given and the condition of the headlight. We deem it unnecessary to further review and discuss the testimony of the various witnesses concerning the giving of these statutory signals, and we are of the opinion that the evidence amply supports the charges of negligence alleged in the declaration.

The proof shows that the Edwardsville Road was a concrete State highway, with considerable traffic both day and night. The engineer testified that as he approached the crossing he saw the truck coming close thereto; that another automobile passed ahead of the truck over the crossing and that the tender of the engine just missed striking it; that before he reached the crossing he had observed a lot of traffic going both ways on the highway. Aside from the requirements of the statute, persons handling trains approaching crossings are required to use reasonable care, and what is such a degree of care is a question of fact depending upon the local conditions. One of the numerous conditions which would be material for the consideration of the jury would be the extent to which the crossing is used. Elgin, J. & E. R. Co. v. Lawlor, supra.

Appellant also urges that'the instructions given on behalf of appellee were erroneous. Appellee’s first instruction was erroneous and should not have been given in view of the holding in the late case of Malloy v. Chicago Rapid Transit Co., 335 Ill. 164, but taking into consideration the wording of the first and second instructions offered by appellant to the effect that appellee was required to prove her case by a preponderance of the evidence, we are of the opinion that under all of the circumstances of the case the giving of this instruction was not in and of itself reversible error.

Appellee’s second instruction is criticised because it is claimed there was no evidence tending to show due care by the deceased, and that the instruction assumes there was some contractual relation between the deceased and the driver of the truck. This instruction was approved in Chicago City Ry. v. Nonn, 133 Ill. App. 365, and the law on. imputed negligence was stated at length in the same case reported in 232 Ill. 378.

Appellee’s third instruction is also questioned, but this instruction was held good in the case of Rautman v. Chicago Consolidated Traction Co., 156 Ill. App. 460, and we are of the opinion that there is no merit in counsels’ criticism of this instruction.

The fourth and final instruction offered on behalf of appellee is objected to by appellant because of reference to the limit of damages fixed by statute in death cases. The damages awarded were only one-half the amount fixed by the statutory limit and no assignment of error is argued which, raises the question that the damages assessed were excessive or not warranted by the proof in the case. In East St. Louis Connecting Ry. Co. v. O’Hara, 150 Ill. 580, it was held that a reference to the ad damnum in the declaration is not to be commended, but if the jury was not misled or unduly influenced by such reference, it was not reversible error. In Davis v. Michigan Cent. R. Co., 294 Ill. 355, it was held that an instruction referring to the ad damnum was faulty, without further explanation thereof, but where a party was not prejudiced thereby, it was not reversible error.

We are of the opinion that there was no reversible error in the record and accordingly the judgment of the circuit court of Madison county is affirmed.

Affirmed.


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    Illinois Bankers Life Association et al., Appellees, v. James T. Collins, Appellant.

      Heard in this court at the October term, 1929.
    Opinion filed February 28, 1930.
    White & Quindry, for appellant.
    H. E. Skinner and D. L. Duty, for appellees.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

The life of Maggie B. Collins was insured for $1,000 and her husband was the beneficiary. He murdered her and then committed suicide. The Insurance Company brought the money into court on a bill of inter-pleader and the court decreed that the fund be paid to appellees, other than the Insurance Company, who are the father, brother, sister and children of a deceased brother of the insured. Mrs. Collins left no child or descendant. The promise contained in the policy is as follows: — “Illinois Bankers Life Association, . . . hereby insures Maggie E. Collins . . . and agrees to pay Thomas C. Collins, husband of the insured (herein called the beneficiary) and in the event of the beneficiary’s prior death (no other beneficiary having been named) to the insured’s legal representatives, the sum of $1,000,” etc.

The beneficiary having murdered the insured, the right to recover the insurance was in the administrator of the insured; Kascoutas v. Federal Life Ins. Co., 193 Iowa 343, 185 N. W. 125; Slocum v. Metropolitan Life Ins. Co., 245 Mass. 565, 139 N. E. 816; Johnston v. Metropolitan Life Ins. Co., 85 W. Va. 70, 100 S. E. 865; Murchison v. Murchison (Texas), 203 S. W. 423. There are many other cases to the same effect.

In cases where the beneficiary of a life insurance policy is not named, or the policy is made payable to the estate of the insured, to his executor or administrator or to the insured, only the executor or administrator or personal representative of the insured is entitled to sue on the policy; McDaniels v. Western & Southern Life Ins. Co., 332 Ill. 603.

It is evident therefore, that upon the death of Mrs. Collins, under the circumstances of this case, the amount "of the policy in question was due her estate. Under section 1, clause 3, of the Statute of Descent, Cahill’s St. ch. 39, If 1, the whole of the personal estate of Maggie E. Collins passed to her husband. An insurance policy payable to the estate or personal representatives of the assured is a species of property. It is in the nature of a chose in action; Collins v. Metropolitan Life Ins. Co., 232 Ill. 37-44. The proceeds of the policy of insurance is a part of the estate of the insured and passed, under the Statute of Descent, to her heir; Miller v. Miller, 200 Iowa 1070, 205 N. W. 870. Money due a wife’s estate on a policy of insurance passes by descent to her husband when she has no descendant; Belleville Sav. Bank v. Aneshaensel, 298 Ill. 292.

The Statute of Descent in plain and unambiguous terms vested in the husband of Maggie E. Collins the whole of her personal estate, upon her death, and the fact that he was criminally responsible for her death did not deprive him of his inheritance, nor limit the same to a naked trust for the benefit of other persons; Wall v. Pfanschmidt, 265 Ill. 180.

The trial court held that the husband having murdered his wife, the fund in question could not pass by descent to him or his heirs because it would be against public policy. We think that question is fully answered by the Supreme Court of this State in the Wall case, supra. Some other courts have reached a different conclusion but we feel that that decision is conclusive in this State. There can be no public policy which contravenes the positive language of a statute; 9 R. C. L. 48. To hold that this insurance money is not subject to the same law of descent as other personal property, would be nothing less than judicial legislation by engrafting exceptions in a statute where none exist by the language therein contained.

In Slocum v. Metropolitan Life Ins. Co. (Mass.), 139 N. E. 816, it was said that a beneficiary who has feloniously taken the life of the insured and is thereby precluded by public policy from claiming the proceeds of an insurance policy is also precluded from claiming under the Statute of Descent. What is said upon that subject, however, appears to be purely obiter dicta as the court stated that question was not before it. The same conclusion was announced in Johnston v. Metropolitan Life Ins. Co., 85 W. Va. 70, 100 S. E. 865, but the reason therefor is not persuasive and is contrary to the decision of the Supreme Court of this State in the Wall case, supra.

In Murchison v. Murchison (Texas), 203 S. W. 423, the husband was insured and was murdered by his wife who was the beneficiary. The husband left no child or descendant and the court held that the insurance money passed to the wife under the Statute of Descent.

Appellees strenuously insist that this case is controlled by the decision in the case of Knights & Ladies of Honor v. Menkhausen, 209 Ill. 277. In that case the wife was insured in a fraternal beneficiary society and her husband was named as beneficiary. He murdered her and by reason thereof was not entitled to recover the insurance. Under the constitution, bylaws and statute, the next class of beneficiaries included the heirs at law of the insured. In that case, by the terms of the insurance contract, the society was obligated to pay the insurance to such heirs at law. The situation in the case at bar is entirely different. There is no showing that the. insurance company was obligated to pay anyone other than the estate of the insured. . It was money due the estate and was not materially different from a promissory note or other chose in action due the estate of the insured. Under the Statute of Descent it passed to the husband of the insured and he having committed suicide it should be paid to his heirs at law. Technically it should be paid to the administrator of the estate of the insured and then to the heirs of her husband. No point seems to have been made as, to that question and as no one is complaining, the decree is reversed and the cause remanded with directions to enter a decree directing that the fund in question be paid to the heirs of Thomas C. Collins.

B,eversed and remanded with directions.


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    Earl Bowman, Administrator of the Estate of Howard Eugene Bowman, Deceased, Appellee, v. Woodway Stores, Inc., Appellant.

      Heard in this court at the October term, 1929.
    Opinion filed February 28, 1930.
    E. M. Spiller and W. H. Hart, for appellant.
    D. L. Duty, Ray D. Henson and Geo. T. Carter, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

Appellee instituted suit against appellant to recover damages for the death of appellee’s intestate claimed to be caused by drinking impure condensed milk purchased by the father of the deceased from appellant at its store in Johnson City, Illinois.

From the evidence offered on behalf of appellee it appears that on June 18, 1927, Earl Bowman, father of the deceased, purchased a dozen cans of condensed milk from appellant at its place of business; that appellant was engaged in conducting a retail store where foodstuffs were kept for sale; that at the time of the purchase the father made known his wants at the store and there was delivered to him a dozen cans of condensed milk, in one package, for which he paid 60 cents; that appellee had been in the habit for a considerable period of time of purchasing similar cans of milk which were labeled and sold under a trade brand called “Pet Milk”; that on the two consecutive days following the purchase a can of milk was opened and used by the family of appellee, and no ill effects were suffered by the family from such use; that on June 22 a third can of milk was opened by punching two holes in the top of the can, the milk therefrom was placed in a pitcher to which was added water, and was served at the breakfast table by mixing the same with grapenuts. The family consisted of appellee and his wife, and their child Howard Bowman, who was about 18 months old.

About two hours after Howard Bowman partook of the milk and grapenuts the child was taken sick and died the next day. The father and mother drank of the milk, taken from the same can, at the breakfast meal and they were also stricken with what was diagnosed as ptomaine poisoning by the family physician. All three were sick at the same time, had prostrations, were cold with clammy sweats and were purging, but the symptoms of the boy were much worse. The doctor who was called to treat the family made a physical examination of the remaining grapenuts and milk on the morning he was called to treat these persons, and stated, in his opinion, that the ptomaine poisoning was caused by the drinking of the milk; that the death of the child was due to such poisoning. The milk prior to its use by the family of appellee appeared to be in good condition, there being no bad taste or smell which could be detected from casual examination.

The evidence for appellant shows that condensed milk, similar to that in question, had been manufactured for many'years at Greenville, Illinois, under the trade brand of “Pet Milk”; that the company in the preparation of the milk exercised care to sterilize the cans, the best known- methods of preparation were used by the company to prevent deterioration of the milk after being placed in sealed tin containers and careful inspection was made in the manufacture to determine any defective cans or any imperfections in the preparation of the milk.

At the close of appellee’s evidence and again at the close of all the evidence, appellant moved the court for a directed verdict,' which motions were denied and the trial resulted in a verdict in favor of appellee for $6,772, upon which judgment was entered.

•Appellant’s first contention is that the declaration is insufficient to support the judgment;'first, because it fails to charge in apt words that the “milk” was poisonous; second, failure to charge that the deceased exercised due care, or was of such immature age as would excuse such want of care; third, failure to charge that the parents of the deceased exercised due care; fourth, want of averment, either of negligence, or express warranty of the fitness of the milk for human consumption.

On demurrer a declaration is construed against the pleader, but after verdict all intendments and presumptions are in its favor. If a declaration contains terms sufficiently general to include, by fair and reasonable intendment, any matter necessary to be proved, and without proof of which the jury could not have given the verdict, the want of an express averment of such matter is cured by the verdict. Sargent Co. v. Baublis, 215 Ill. 428.

The declaration is not based upon, negligence on the part of appellant, but is grounded upon the theory that appellant was engaged in the business of retailing groceries to the general public for their immediate use and consumption as food, the legal relationship between the deceased, his father and appellant; that from this relationship the implied. warranty that the law supplies, the breach of that warranty and the damages resulting to the next of kin of the deceased from the breach. The declaration charged that the milk sold by appellant caused the death of appellee’s intestate, and while the trial court may have required, on demurrer, more explicit allegations as to the precise details of the alleged facts which caused the injury, nevertheless after verdict, in view of the principles of law enunciated at length in the Baublis case,. supra, and in Greenwood v. Thompson Co., 213 Ill. App. 371, we are of the opinion that the declaration is sufficient to support the judgment.

Prior to the passage of the Uniform Sales Act, Cahill’s St. ch. 121a, ¶ 4 et seq., in 1915, it was held by the Supreme Court in Wiedeman v. Keller, 171 Ill. 93, that the decided weight of authority in the United States was that in all sales of meats and provisions for immediate domestic .use by a retail dealer, there was an implied warranty of fitness and wholesomeness for consumption. The Wiedeman case involved the sale of meat that was open to inspection, while the sale in the instant case was in a sealed tin container. In the Wiedeman case it was said,

“In an ordinary sale of goods the rule of caveat emptor applies, unless the purchaser exacts of the vendor a warranty. Where, however, articles of food are purchased from a retail dealer for immediate consumption, the consequences resulting from the purchase of an unsound article may be so serious and may prove so disastrous to the health and life of the consumer that public safety demands that there should be an implied warranty on the part of the vendor that the article sold is sound and fit for the use for which it was purchased. It may be said that the rule is a harsh one; but, as a general rule, in the sale of provisions the vendor has so many more facilities for ascertaining the soundness or unsoundness of the article offered for sale than are-possessed by the purchaser, that it is much safer to hold the vendor liable than it would be to compel the purchaser to assume the risk. Moreover, we have a statute which makes it a crime for any person to sell or offer to sell, or keep for sale, flesh of any diseased animal. (Hurd’s Stat. 507.) ”

In Chapman v. Roggenkamp, 182 Ill. App. 117, the Appellate Court for the First District considered the question of liability where a person was poisoned by eating unwholesome canned peas purchased of a retail dealer, and held that there was a responsibility predicated on an implied warranty that the peas were fit for food.

In Sloan v. Woolworth Co., 193 Ill. App. 620, the Appellate Court for the Third District reached the same conclusion as to the liability of a retail dealer for damages in the sale of canned goods, and held under the doctrine announced in the Weideman case, supra, there was no distinction as to liability based upon the fact that the goods sold for consumption were in sealed packages or tin containers.

The Uniform Sales Act, Cahill’s St. ch. 121a, ¶ et seq., was adopted subsequently to the decisions in the foregoing cases, and it is contended by appellant that Clause 4 of section 15 precludes any implied warranty by reason of the sale of the milk in question under the trade name of “Pet Milk” in sealed tin containers.

Section 15 of the Uniform Sales Act, Cahill’s St. ch. 121a, ¶ 18, is as follows:—

“Subject to the provisions of this act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows:
“(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.
“(2) Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality.
“(3) If the buyer has examined the goods, there is no implied warranty as regards defects which such examination ought to have revealed.
“ (4) In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose.
“(5) An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usages of trade.
“(6) An express warranty or condition does not negative a warranty or condition implied under this act unless inconsistent therewith.”

In Ward v. Great Atlantic & Pacific Tea Co., 231 Mass. 90, 5 A. L. B. 242, the court considered at length, under the provisions of the Uniform Sales Act, the liability of a retail grocery dealer for damages resulting from the sale of beans in sealed tin containers, sold under a trade name, and held the dealer liable on the theory of a breach of implied warranty. In passing on the nature of the transaction the Massachusetts court held,

“The transaction between the plaintiff and the defendant as to the can of beans necessarily involved ,a purchase of food to be eaten. That need not be stated in precise words. It was an underlying and essential condition of the contract, implied without expression. It arose from the nature of the goods, the size of the purchase, and the terms of the label. It is provided by the Sales Act (Stat. 1908, ch. 237), § 15 (1): ‘Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the'seller’s skill or judgment, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for such purpose.’

“That provision governs the relations of the parties in the case at bar. In this respect, the statute is in substance, so far as concerns a dealer such as the defendant, simply a codification of the common law.”

The court in the opinion in the Ward case quoted from decisions of the English courts under the English Sale of Goods Act, which does not differ in any material respect from the particular provision in question of the Illinois Uniform Sales Act, and commenting on these decisions the court said, “It is manifest, therefore, that the English courts hold that under the Sale of Goods Act there is no distinction between canned goods and goods not canned and open to inspection,-so far as concerns the implied warranty of fitness in sales of food to the ultimate consumer. Decisions of this character, in view of the fact that the English Sale of Goods Act was enacted before our own, and of the close similarity of the pertinent section of each act, are entitled to consideration." To the same effect are the cases of Davis v. Van Camp Packing Co., 189 Iowa 775, 176 N. W. 382 (17 A. L. R. 649), and Hertzler v. Manshum, 228 Mich. 416, 200 N. W. 155.

The Wiedeman case, supra, predicated a liability upon the sale of foods for immediate consumption, upon the ground that the consequences resulting from the purchase of an unsound article may be so serious to the life and health of the consumer that public safety demanded there should be an implied warranty, on the part of the vendor, that the article sold is sound and fit for the use for which it was purchased. Since the Wiedeman case was decided the Pure Food Statute was passed in 1907 (Cahill’s St. ch. 56b). This statute fixes penalties for the sale of impure food and is a police regulation in the interest of the public health and does not make knowledge by the retailer a necessary element of the offense. Sloan v. Woolworth Co., supra.

A dealer in foodstuffs who sells injurious foods is not protected under the Pure Food Statute by the fact that the goods were manufactured by another and sold in the original package under a trade name. People v. Price, 257 Ill. 587.

We are in accord with the reasoning and holding of the Massachusetts court in the Ward case, supra, to the effect that clause 1 of section 15 of the Uniform Sales Act governs the relationship- of the parties in the case at bar and that appellant is not relieved from its implied warranty by the mere fact that the milk in question was sold in tin containers under a trade name or brand; that clause 4 of said section 15 of the Uniform Sales Act does not apply to the sale of foodstuffs by a retail dealer for immediate consumption, for, if this were so, the effect would be to relieve from liability a retailer who sold articles of food under a patent, trade name or brand, and thereby render nugatory the provisions of the pure food statute enacted for the purpose of protecting the life and health of the persons who purchase food supplies for immediate consumption.

Appellant further contends that the evidence discloses that appellee failed to establish that the milk in question was the cause of the death of the deceased, and that the only scientific way by which it could be determined whether or not the milk was poisonous would be to have a chemical examination of the milk and all food and drink which the deceased had partaken of for a period of three days prior to his sickness.

Doctor Green, the family physician, testified that he treated the deceased and other members of the family for what he diagnosed as ptomaine poisoning, and after an examination of the various articles of food which had been partaken of at the morning meal and from the history of the case, stated that, in his judgment, the death of deceased was caused by ptomaine poisoning originating from the milk.

The record shows that the father purchased a dozen can package of milk on Saturday, June 18, 1927; that on the Wednesday following, the can of milk in question was opened and poured into a pitcher with water added. When the can was opened, by punching holes in the cover, it was apparently in good condition on the outside, but subsequent examination showed a black spot or blemish on the inside of the can. The milk had been prepared and placed in tin containers in April, 1927. The proof on the part of appellee tends to show that the usual and customary methods of cleanliness were used by the family in the preparation of the meal at which the milk was consumed as had been used by the family in the past. That at prior meals milk from the last purchase made by appellee had been used with grapenuts from the same package without any ill effects.

Medical experts testified on behalf of appellant that from the examination and history of the case which had been detailed by appellee’s medical witness, that it would be impossible to exactly determine what was the cause of the death of the decedent.

The question of the cause of death and whether the same was due to drinking impure milk was a question of fact for the jury to determine under all the facts and circumstances in evidence and after examination of the record we are unable to say that the verdict in this respect is manifestly against the weight of the evidence.

It is argued that the trial court erred in the admission of incompetent evidence, in that Doctor Green was permitted to answer where, in his judgment, the ptomaine poisoning originated, from which resulted the sickness and death of the deceased. On the trial the objection then made to the opinion evidence of the doctor was that the witness was not qualified to give an opinion, not having made a chemical analysis of the food and drink partaken of by the deceased. The objection now made is that the doctor, by his answers to the questions, was by the court’s ruling permitted to usurp the function of the jury and to determine the ultimate question of fact, as to the cause of death, which it was the sole province of the jury to determine. Although the question now raised as to the competency of this evidence was not urged in the trial court, and, therefore, not subject to review, considering the form of the question, it is apparent that the doctor was only asked to express an opinion based upon his judgment. Accordingly, the jury were not precluded from considering his opinion and giving it such weight as in their judgment it was entitled to, thereby leaving the ultimate question of the cause of the death for the jury to decide after considering all of the evidence. We have considered this, and the other objections urged by appellant to the questions asked of appellee, and are of the opinion that the court did not err in its rulings on the admission of the evidence objected to by appellant.

Counsel urge that the court erred in giving appellee’s instructions which are in accordance with the principles of law applicable to the facts in the case, and we are of the opinion that the giving of these instructions on behalf of appellee were proper. It is further urged that there is a conflict between appellee’s fifth given instruction and appellant’s eighth given instruction, but we are of the opinion that appellant, haying requested the giving of this instruction, is not in a position to urge this objection, even though it be said there was a conflict.

It is finally contended that the verdict is excessive, but in view of the age of the decedent it was, under all the circumstances, peculiarly within the province of the jury to fix the amount of damages and we cannot say that the same was so excessive as to require a new trial, in view of the present purchasing power of money as compared with that of several years ago. Northern Trust Co. v. Grand Trunk Western R. Co., 207 Ill. App. 11.

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

Affirmed.


author: Mr. Justice Wolfe

text:
    Judson White, a Minor, by M. J. White, his Next Friend, Appellee, v. Winfield Seitz, Appellant.

      Heard in this court at the October term, 1929.
    Opinion filed February 28, 1930.
    W. Joe Hill and W. S. Willhite, for appellant.
    P. J. Kolb, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

The defendant, Winfield Seitz, lives with his wife and their 17-year-old son, J. D. Seitz, at Mt. Carmel, Illinois. Winfield Seitz, the father, was the,, owner of an Essex automobile that had been purchased and kept for the use and comfort of himself and family. The son, J. D. Seitz, with the permission of his father was in the habit of using this car for his pleasure and comfort, and frequently drove the same around Mt. Carmel and vicinity, and often had other boys and girls with him while so driving. On June 1, 1928, J. D. Seitz, the son, was driving said car on Main Street in the City of Mt. Carmel when the plaintiff, Judson White, called to him from the sidewalk. After a conversation between the two boys, Judson White got into the car and J. D. Seitz drove the car away. They drove about town for awhile and then started east on Fifth Street toward the dam across the Wabash River, which is a few miles above Mt. Carmel. The defendant, J. D. Seitz, was driving the car and was sitting in the front seat on the left side, the plaintiff sitting at his right on the same seat. As the road approaches the river there is a turn in the road. J. D. Seitz attempted to make this turn while driving at a high rate of speed. The car in some manner collided with some trees. The car was badly damaged and the plaintiff was injured.

Judson White, at the time of the injury, was 17 years of age. He started a suit in the circuit court in Wabash county, by his next friend, his father, H. M. White, against Winfield Seitz, the owner of the car, for damages which he claimed were caused by the negligence of J. D. Seitz, the son, while driving the car and thereby causing the injuries complained of. A declaration was filed to which the defendant filed a demurrer that was overruled by the court. The defendant then filed pleas. The case was tried by a jury which found in favor of the plaintiff and assessed his damages at $5,000. After a motion for a new trial and arrest of judgment were overruled, judgment was entered on the verdict in favor of the plaintiff for the sum of $5,000. The defendant excepted and has perfected an appeal to this court.

It is first contended by the defendant that the court erred in overruling the demurrer to the declaration. We are of the opinion that the defendant is in no position to raise this point at this time. After the demurrer had been overruled, instead of electing to stand by his demurrer he filed pleas, and by so doing waived any error, if any, that the trial court had made in overruling the demurrer, and he, by such procedure, abandoned the demurrer. (People v. Opie, 304 Ill. 521; Camp v. Small, 44 Ill. 37; and People v. Core, 85 Ill. 248.)

It is next contended that the evidence does not show in an affirmative way that the plaintiff was not guilty of contributory negligence. It is not contended in the argument of the appellant that the evidence does not fully sustain the charge of the plaintiff that the negligence of the driver of the car was the cause of the accident. It is the law that the plaintiff must show by affirmative proof that he was in the exercise of due care for his own safety just before and at the time the accident occurred. (Morgan v. Rockford, B. & J. Ry. Co., 251 Ill. App. 127; Walters v. City of Ottawa, 240 Ill. 259.) Numerous other cases might be cited that hold to this doctrine. However, it is not necessary that any one state or give his conclusions as to whether the plaintiff was in the exercise of due care or not, but this may be established the same as any fact by circumstantial evidence. (Devine v. Delano, 272 Ill. 166; Chicago & E. I. R. Co. v. Beaver, 199 Ill. 34; Cleveland, C., C. & St. L. Ry. Co. v. Keenan, 190 Ill. 217.)

The plaintiff gave his version of the accident and what he was doing just prior thereto. It is a question of fact for the jury to decide whether the injuries to the plaintiff were caused by the negligence of the driver of the car, and whether the plaintiff by his conduct was guilty of contributory negligence in causing the injury. The jury by their verdict have found in favor of the plaintiff on both of these issues, and we think the evidence fully sustains the jury’s findings, that is, that the injuries to the plaintiff were caused by the negligence of J. D. Seitz, the son of the defendant, while driving the car, and that the plaintiff was not guilty of any negligence that contributed to his injuries.

It is the contention of the defendant that he is not liable at all in this case for the reason that a father who has purchased an automobile for the convenience and pleasure of Ms family is not liable to one whom the child, while driving the automobile for Ms own pleasure, permits to ride in the car as his guest, when such guest is injured by the negligence of the cMld that is the driver of the. car. It is further contended that in this case the plaintiff asked the defendant’s son to ride and he therefore was merely a licensee or trespasser, and the defendant owed Mm no duty, except not to wilfully injure him. Defendant relies principally on the case of Arkin v. Page, 287 Ill. 420, as sustaining their contention.

This question has been the source .of much litigation and the courts of the several States are far from being in unison on the subject. Quite a number of the States hold that under such circumstances the father should not be liable; on the other hand quite a number of the States hold that under such circumstances the father and owner of the car should be held to answer in damages for the negligent act of the son.

One of the leading cases is King v. Smythe, 140 Tenn. 217, decided by the Supreme Court of Tennessee, and reported in 204 S. W. Reporter at page 296. In this case the father was a physician and surgeon in the City of Memphis, Tennessee. He had bought a car for his professional use, which was also used by members of his family and us.ed by the son whenever the son desired to drive it and the car was not needed by the father in his professional work. The son was 25 years of age and a student in a medical school. He was home on a vacation and while driving the car an accident occurred damaging plaintiff’s automobile in which the son by Ms negligence was the cause. The plaintiff brought suit against the father for injuries to the automobile. The court held that where a father allows his son to drive an automobile which he has furnished for the pleasure of his family, whereby the son injures the property of a third person, the father is liable. The son while so driving was acting in the furtherance of the father’s purpose.

In the case of Johnson v. Evans, 141 Minn. 356, 170 N. W. 221, the defendant’s family consisted of himself and wife and his two sons, the oldest son being about 17 years of age at the time of the accident which caused the suit. The father kept and maintained a 5-passenger automobile for both pleasure and business purposes. Prior to the accident the 17-year-old son had been permitted to use the car whenever he felt inclined so to do and take his' friends out riding. He picked up another young man and then invited two young ladies to go with them and they started out for a drive and finally decided to go to a dance. On the road to' the dance an accident occurred. The girl who was riding in the seat with the defendant’s son was injured. She started suit against the defendant for injuries which she had sustained in the accident, which she claimed was due to the negligent manner in which the son had driven the car. The court held in this case that, although the son was using the car for his own personal pleasure and that of his friends, the son was the servant of the father, the defendant, and within the meaning of the law that the father, the defendant, is liable for his misconduct in operating the same. In a later Minnesota case, Johnson v. Smith, 143 Minn. 350, 173 N. W. 675, the court says: “This court stands committed to the rule that where the head of the family makes it his business to provide recreation and pleasure for the family and its several members, and to that end furnishes an automobile, he is responsible for its negligent use by any one of the family having his permission to drive it”; and cites many cases from other jurisdictions that support this doctrine.

In Graham v. Page, 300 Ill. 40, our Supreme Court cites with approval King v. Smythe, supra, a Tennessee case, and says: “We agree with the Supreme Court of Tennessee that where a father provides his family with an automobile for their pleasure, comfort and entertainment, ‘the dictates of natural justice require that the owner should be responsible for its negligent operation, because by only so doing as a general rule can substantial justice be attained.’" In a later case of Gates v. Mader, 316 Ill. 313, the owner of an automobile which had been kept for the pleasure and convenience of his family and driven by his son with his consent, was held liable' for an injury to a pedestrian caused by the negligence of the son while driving the car. The court distinguished" this case from the case of Arkin v. Page, supra. The Gates case recognizes the “family purpose doctrine” in the operation of an automobile. Hinkle v. Gall, 238 Ill. App. 512; Beesley v. Goldstein, 239 Ill. App. 221. The court properly held that the injury to the plaintiff caused by the negligence of the defendant’s son was a proper subject for damage against the defendant who was the owner of the car.

At the close of the plaintiff’s testimony the defendant entered a motion for a directed verdict in favor of the defendant. This motion, after argument, was overruled.

After the motion for a directed verdict had been overruled the court permitted the plaintiff’s father to testify that the defendant Winfield Seitz was a man of family, and that on June 1, 1928, this family consisted of himself, his wife, and his son, J. B. Seitz, who was about 17 years old at the time of the accident; that the son lived at home with his family at and prior to the time of the accident. This testimony was admitted over the objection of the defendant and now is assigned as error in this court. The defendant introduced no evidence at the time of the trial.

The matter of admission of evidence is largely in the discretion of the trial judge, and anything that goes to the merits of the case is proper to be admitted. The defendant was not prejudiced by this evidence. He had the right to introduce evidence to show that it was not true. The defendant did not introduce any evidence, but elected to rely upon his motion for a directed verdict. We are of the opinion that the evidence was material, and it was proper for the trial judge to admit the same.

Over the objections of the defendant the trial judge admitted in evidence plaintiff’s Exhibits Nos. one to six, said exhibits being bills rendered to and paid by M. J. White, father of the plaintiff, for medical services and hospital care given the plaintiff following the accident. The bills* so paid by the father, M. J. White, totaled $557.50. The plaintiff’s instruction No. 5 informed the jury that they may include in their award of damages, if they find the issues for the plaintiff, the expenses incurred by the father for medical attention for the plaintiff. Error is assigned upon the admission of this evidence and giving of this instruction.

This suit is brought by Judson White, a minor, by M. J. White, his father and next friend. There is no question but what M. J. White actually paid the bills for the son to the amount of $557.50. M. J. White, the father, had the right to waive his right to recover the money expended for the son in paying hospital bills, nurses’ bills, and surgical fees, and to allow his son to recover the same. The father appeared as next friend in this suit and testified in his son’s behalf; he is now estopped from further claim against the appellant on account of such payment. (American Car & Foundry Co. v. Hill, 226 Ill. 227; Chicago Screw Co. v. Weiss, 203 Ill. 536; Boggs v. Iowa Cent. Ry. Co., 187 Ill. App. 621.) Instruction No. 5 of appellee’s correctly stated the law .and it was not error for' the trial judge to admit this evidence.

The defendant claims the trial court erred in giving plaintiff’s instructions Nos. one, two and three. ,We think it is a correct statement of the “family purpose doctrine” in the use of an automobile and a consequent liability to a guest riding in the car. In our opinion the jury was fully and properly instructed on behalf of the plaintiff and the defendant in the case, and there was no error in the giving or refusing instructions.

It is contended by the appellant that the judgment of $5,000 was excessive and not justified under the evidence in the case. We are not prepared to say that under the circumstances in this case the judgment of $5,000 is excessive. We find no reversible error in the case and the judgment of the circuit court of- Wabash county, Illinois, is hereby affirmed.

Affirmed.


text:
    East St. Louis Light & Power Company, Appellant, v. Swift & Company et al., Appellees.

      Heard in this court at the February term, 1930.
    Opinion filed May 21, 1930.
    Kramer, Kramer & Campbell, for appellant.
    Matthews & Koegel and Pope & Driemeyer, for appellees; J. R. Harmon and Kenneth L. Karr, of counsel.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellant filed a bill for injunction which was dismissed for want of equity. It avers that for several years appellant has conducted a public utility under a certificate of convenience and necessity issued by the commerce commission; that it has furnished electricity to Swift & Company for its meat-packing plant under a contract which may be terminated on 30 days’ notice; that said plant is within the territory covered by appellant’s certificate; that the St. Louis Has & Coke Corporation has a large manufacturing plant where it manufactures coke, iron and other products and for some time has been manufacturing gas as a by-product and that it now has electric generators in its plant where electric power is being generated with gas products as the fuel to generate the same.

The bill avers that the said St. Louis Gas & Coke Corporation is not, and does not claim to be a public utility; that it is not a public utility as defined by the laws of this State and is not subject in any way to the jurisdiction of the Illinois Commerce Commission; that said corporation has entered into an agreement with Swift & Company to furnish electric power and energy to Swift & Company in lieu of the electric power and energy now being and heretofore furnished by appellant to it; that for several years appellant has derived an income of about $50,000 per year from the electric power and energy which it has furnished to Swift & Company; that while the said corporation is not a public utility and has no authority to conduct such a utility, it is about to invade the territory of. appellant and if permitted to do so will reduce appellant’s income to the extent of about $50,000 per year. Upon the filing of the bill a temporary injunction was issued. Appellees filed an answer in which they admitted all of the substantial material averments of the bill. They denied, however, that the St. Louis Gas & Coke Corporation is attempting to enter the public utilities field. They deny that said corporation is holding itself out to serve the public with electric energy.

The undisputed evidence is that the St: Louis Gas & Coke Corporation is engaged in the manufacture of pig iron and coke; that those are' the major products but from which a number of by-products are produced. In the manufacture of iron and coke a large amount of coal is used and gases are removed from the coal. Until recently the gas was wasted in the air. In order to avoid that waste and to provide electric energy for its own use the corporation installed boilers and generators, the gas is burned under steam boilers and the steam is converted into electrical energy, the major portion of which is used by the corporation in its own plant. When the generators were installed the corporation had no means of knowing what it would be able to get in the way of electrical current so it provided sufficient generating equipment, not only to take care of its immediate needs, but to provide a substantial producing capacity to take care of future developments in its plant. After the generators were installed it was found that more electrical energy was produced than the corporation needed in its plant which is not yet fully electrically equipped. That the corporation has entered into a contract with Swift & Company to supply the latter company with a portion of such excess electrical power and energy.

Upon the hearing of the cause the court dissolved the temporary injunction and dismissed the bill for want of equity. Appellant does not contend that the St. Louis Gas & Coke Corporation is operating a public utility or that it intends to do so. The contention is that although said corporation is not operating a public utility, yet in the making of the contract with Swift & Company it has entered the field occupied by appellant as a public utility and is about to deprive appellant of one of its best customers, and that it should be enjoined from so doing. It is not claimed that the said corporation installed electric generators for the sole purpose of taking this valuable customer from appellant.

We do not understand that the public utility law controls the conduct of a corporation that is not operating a public utility. Before a corporation operating a public utility and having a certificate of convenience and necessity can procure an injunction against a corporation not engaged in operating a public utility it must be made to appear that the corporation sought to be enjoined is engaged in attempting to evade the force and effect of the Public Utility Act, Cahill’s St. ch. 111a, ¶ 16 et seq.

We are of the opinion that the St. Louis Gas & Coke Corporation in selling a portion of its surplus electrical energy to Swift & Company is not violating any law and that even though appellant’s income may be reduced thereby yet it has no cause of action. Where similar cases have arisen the courts have held against the contention now urged by appellant. Hissem v. Guran, 112 Ohio 59, 146 N. E. 808; Mooney v. Tuckerman (R. I.), 144 Atl. 891; Towers v. Wildason, 135 Md. 677, 109 Atl. 471.

The St. Louis Gas & Coke Corporation had the right to provide for the future growth of its business, to install electric generators of sufficient capacity to generate electricity for its own purposes that may be required by the future enlargement of its business, and it had the right to sell its excess power not needed for immediate use. Dickman v. Madison County Light Co., 304 Ill. 470.

Appellant contends that in selling electrical energy to Swift & Company the St. Louis Gas & Coke Corporation is exceeding its charter powers and that by reason thereof appellant is damaged and may maintain a suit for injunction. That corporation is licensed “to manufacture, produce, buy, sell and generally deal in iron, steel, copper, manganese, metals, metallic compounds, ores, coal, limestone, coke, charcoal, chemicals, paints, dyes, gas, tar, oils, lumber, and other materials, and any and all articles consisting or partly consisting thereof, and all products and by-products which are or may be produced, processed, or manufactured therefrom in whole or in part.” We cannot agree with appellant’s contention that the said corporation acted beyond its charter powers in making the contract with the Swift Company. The decree of the circuit court is affirmed.

Affirmed.