text:
    Paul Albert Kanter, Appellee, v. Continental Assurance Company, Appellant.
    Gen. No. 32,811.
    Heard in the third division of this court for the first district at the June term, 1928.
    Opinion filed January 30, 1929.
    Rehearing denied February 14, 1929.
    George C. Bliss, for appellant.
    Seymour J. Frank, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The questions brought by this appeal for our review are restricted to the pleadings and the effect of carrying the demurrer of plaintiff to certain of defendant’s pleas back to the declaration.

The order of the pleadings is the one count declaration of plaintiff, in which the policy of insurance declared upon is set forth in haec verba, and thereby became a part of such count. That being so the duty of the court is to pass upon its legal purport and effect. Binz v. Tyler, 79 Ill. 248.

Defendant on its part interposed a plea of the general issue, also a special plea averring that plaintiff was guilty of making fraudulent answers to certain questions put to him by the' medical examiners of defendant, and that but for such fraudulent answers defendant would not have issued to plaintiff its policy in suit. Accompanying these pleas was an affidavit of meritorious defense made by defendant’s attorney of record in the trial court and here. To that special plea plaintiff filed a general and special demurrer. The special causes of demurrer set forth are:

1. That the policy in suit is incontestable after one year from its date; and

2. That the matters set forth in that plea had been previously adjudicated by that court in a chancery proceeding.

Thereupon defendant obtained leave to and did file an additional special plea, in which inter alia defendant in effect contended that the policy sued upon had been obtained by plaintiff’s falsely answering material questions regarding his medical history, and that but for such false answers defendant would not have issued its policy to plaintiff, and that defendant tendered to plaintiff all premiums paid by him on such policy to defendant, which plaintiff refused to accept. To the foregoing two special pleas plaintiff filed a general and special demurrer. Plaintiff assigned as special causes of demurrer the same matters set forth in the special demurrer heretofore recited. Thereafter defendant moved the court to dismiss out of the cause its plea of the general issue and further to carry back such demurrers to the declaration. These motions were allowed. Upon a hearing had, the court sustained the demurrer of plaintiff to the foregoing recited special pleas of defendant and overruled the demurrer carried back to plaintiff’s declaration, and defendant electing to stand by its special pleas and demurrer to the declaration, on motion of plaintiff, the court ordered that defendant’s affidavit of meritorious defense be stricken from the files. Whereupon the court on motion of plaintiff entered a judgment against defendant in favor of plaintiff for the sum of $977.80. To all of the foregoing recited orders of the court culminating, in the above-named judgment, the defendant duly objected and excepted, and brings the record to this court for review by appeal, and assigns for error and argues for reversal the foregoing actions and orders of the court.

The whole controversy in this case is limited to the construction and applicability of the so-called non-contesting provision of the policy. This provision is found in the policy in the following words:

“This policy and the application therefor (Parts I and II) which is hereby made a part of this contract and a copy of which is hereto attached, constitute the entire contract between the parties hereto, and it shall be incontestable after one year from its date of issue, except for non-payment of premium and except for violation of its conditions relative to military or naval service in time of war. All statements made by the Insured shall, in the absence of fraud, be deemed' representations and not warranties and no such statement shall, avoid this policy unless it be contained in the copy of the application attached to this policy when issued.”

The policy in suit is dated November 19, 1923, and was delivered to plaintiff November 29th thereafter, and is both a life and indemnity policy. It provides for the payment upon the insured’s death (plaintiff) of the sum of $5,000 under certain conditions of proofs of death, etc., to the beneficiary named, and in case of permanent and total disability, plaintiff should be paid $50 a month during the continuance of such disability.

This disability clause in the policy is in the following words, viz.:

“To waive all premiums and also to pay to the Insured one per cent of the face amount of the policy each month during the continuance of his total and permanent disability if such disability occurs before the anniversary of the policy on which his age at nearest birthday is 60 years. ’ ’

This one per cent of the amount payable under the policy makes $50 a month.

Defendant seeks to avoid the effect of the incontestable clause of the policy on the contention that it has no application to the supplemental contract which provides for double indemnity in case of permanent injury.

It further contends that the declaration does not state a cause of action and is not proof against the demurrer interposed and also that the special pleas set forth a good defense.

Every essential element necessary to a recovery under the policy is aptly averred in the declaration, which, with the affidavit of claim supporting it, contains a full statement of plaintiff’s cause of action within the terms of the policy set forth in haec verba in the declaration. Stauber v. Stauber, 217 Ill. App. 365, holds as a matter of law, arising from the express terms of the policy, that it and the supplemental contract of indemnity constitute the contract of the parties, and that they must be construed as a unit and not as two separate documents, and further that the non-contestable clause after one year applies to the contract as a whole. With the incontestable clause of the policy in mind, neither of defendant’s pleas sets up matter which constituted a defense to the action. It is consequently apparent that the court did not err in sustaining the demurrer to such , pleas or in overruling the defendant’s demurrer to the declaration.

The incontestable clause in the policy is not only the contract of the parties from which their rights and obligations must be adjudged, but that such clause in the contract is made obligatory by the statutes of this State, and were such clause not in the policy, it would be supplied and read into it in force of such statute. That statute is found in Cahill’s St. 1927, ch. 73.

In construing the incontestable clause of the policy the court in Ramsey v. Old Colony Life Ins. Co., 297 Ill. 592, said:

“We have held that the provision in a policy of life insurance that it shall be incontestable after one year from the date of its issue, provided the premiums are duly paid, is a valid provision, which bars the insurer from making any defense against the policy, after the expiration of the contestable period, except for non-payment of premiums, and that after the lapse of that period even fraud in procuring the policy is not available to avoid it. (Royal Circle v. Achterrath, 204 Ill. 549; Flanigan v. Federal Life Ins. Co., 231 id. 399; Weil v. Federal Life Ins. Co., 264 id. 425; Monahan v. Metropolitan Life Ins. Co., 283 id. 136). This is in accord with the substantially unanimous decisions of the courts, which hold that the language admits of no reasonable construction other than that the company reserves to itself the right to ascertain all the matters and facts material to its risk and the validity of its contract for one year,' and that if within that time it does not ascertain all the facts and does not cancel and rescind the contract it may not do so afterward upon any ground then in existence. When the execution of a contract has been procured by the fraud of one of the parties, the innocent party, upon discovering the fraud, may still insist upon the contract or may rescind it. He must, however, if he desires to repudiate it, do so promptly upon discovering the fraud and consistently adhere to his intention. By delay or vacillation he waives his right to rescind. The effect of the stipulation in the policy is not to prevent the insurer from annulling the contract upon the ground of the fraudulent representations of the insured, but its practical and intended effect is to create a short statute of limitations in favor of the insured, within which limited period the insurer must, if ever, test the validity of the policy. Wright v. Mutual Benefit Life Ass’n, 43 Hun. 61, 118 N. Y. 237; Massachusetts Benefit Life Ass’n v. Robinson, 104 Ga. 256; Clement v. New York Life Ins. Co., 101 Tenn. 22; American Trust Co. v. Life Ins. Co. of Virginia, 173 N. C. 558; Murray v. State Mutual Life Assurance Co., 22 R. I. 524; Mutual Life Ins. Co. v. Buford, 61 Okla. 158; Metropolitan Life Ins. Co. v. Peeler, 176 Pac. 938.”

We think the foregoing by analogy is decisive of the instant cáse on that point.

Such an incontestable clause in a policy must be strictly construed against the insurance company issuing such a policy. In Fairfield v. Union Life Ins. Co., 196 Ill. App. 7, it is said:

“ ‘This Policy is Incontestable after one year, except for the nonpayment of premiums,’ and no doubt was incorporated in the policies as an inducement to secure business, as it could only have been intended to inure to the benefit of the holder of the policy. Such a provision has been held by our courts to be reasonable . . . and must be strictly construed against the defendant. . . .
“ ‘The term “incontestable” is of great breadth. It is the “policy” which is to be incontestable. We think the language broad enough to cover all grounds for contest not specially excepted in that clause. The word “policy” may well be taken to mean a formal document delivered by the company, and containing evidence of an obligation to pay. Such document so delivered is ordinarily contestable, with reference to questions arising in connection with its delivery and payment of the first premium, as well as with reference to statements contained in the application. . . .
“ ‘The argument that the policy was not in continuous force is predicated upon an extrinsic fact not appearing upon the face of the policy, to wit, the fact that the assured was not in good health at the date of the delivery of the policy. In setting up, or even in relying upon, this extrinsic fact, the company is contesting its policy as evidence of its obligation. If the company is at liberty to set up this fact after the lapse of more than five years, it is equally at liberty to set it up after the lapse of 40 years. Instead of. being an incontestable policy, if we adopt the defendant’s argument, the policy is always contestable. ’
“We unqualifiedly approve of the reasoning of the court in the aforesaid case. The language in the in: contestable clause in the case at bar is clear and explicit, and unquestionably provided that after one year, the policy having been delivered and the first premium paid, said policy could not be avoided save for the ground specially reserved, viz., the failure to pay the premiums. To hold otherwise would utterly destroy the value of any incontestable clause. ’ ’

The reasoning of the court in case, supra, is cogently in point in the instant case, covering, as it does, every material element of the effect of incontestable clauses written in defendant’s policy in suit.

Finding no reversible error in the record the judgment of the superior court is affirmed.

Judgment affirmed.

Wilson and Ryneb, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Holdom

license: Public Domain

text:
    United States Cold Storage Company, Appellant, v. Central Manufacturing District Bank, Appellee.
    Gen. No. 32,944.
    Heard in the third division of this court for the first district at the October term, 1928.
    Opinion filed January 30, 1929.
    Rehearing denied February 14, 1929.
    Eugene P. Kealy, for appellant.

      Litsinger, Healy & Reid, and Winston, Strawn & Shaw, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

In this case the circuit court, at the close of the case of the plaintiff, on the motion of defendant, instructed a verdict in defendant’s favor, upon which a judgment of nil capiat and for costs was entered, to which action of the court plaintiff preserved the customary exceptions and made the usual motions, which entitle plaintiff to our review of the record and actions of the trial court which culminated in the foregoing recited judgment. Plaintiff comes here by appeal asking a reversal of the judgment and an entry of a judgment in this court in its favor for the total amount of the 50 checks in suit, with interest.

The case is what plaintiff’s proofs make it, no questions being raised upon the pleadings. The circuit court instructed a verdict on the theory that the proofs of the plaintiff, when it rested its case, raised only questions of law for the conclusion of the court and not of fact for determination by the jury. With this attitude of the court we are in harmony, but for reasons hereinafter set forth in this opinion, we disagree with the legal conclusions at which the trial court arrived in its finding and judgment. The material facts developed by plaintiff’s proofs are not in controversy.

These facts, as culled from defendant’s statement of the case, found in its brief, are substantially as follows:

The check's involved in this suit are 50; in number, and were all drawn by the United States Cold Storage Company, the plaintiff, in favor of various individuals, who, according to the testimony hereinafter recited, were plaintiff’s customers, to whom checks were given during the course of business, with the exception of the James check, as to which James stated that he never knew of any checks coming to him and never had any credit with plaintiff. Notwithstanding this statement of James, Newman, the vice president of plaintiff, testified that in their business dealings with James about that time he signed many checks to him and at the time of signing the particular check in question there was attached to it “a memorandum or data or information,” and that no other checks were produced to corroborate Newman’s testimony as against that of James. (However in the decision to which we have arrived the dispute between James and Newman is not material as the check was drawn to the order of “Edwin Gr. James.”)

It is in evidence that one Arnold P. Meister was plaintiff’s chief clerk and had charge of its office; that beginning with June 3,1923, Meister caused the names of the payees to be placed in the checks, although they did not have any of the amounts specified in the checks coming to them as disclosed by their testimony. Fifty checks were introduced in evidence bearing dates from June 3, 1923, to October 25, 1924. The names of all of the payees of the checks were forged by indorsement thereon by Meister, which after going through the hands of various parties reached the defendant bank, who paid them in faith of the forged indorsements being genuine, and the bank at the end of each month thereafter made a statement of its account to the plaintiff. This procedure covered a period of about 15 months, during which Meister worked his forgery scheme.

The method of plaintiff in making up and issuing the checks was as follows: There were several sources of origin in the office where the checks started. Whoever was on duty as writer of the checks, or vouchers as they are sometimes named, made out the checks on a typing machine; instructions were given to the typists by the voucher writer with authority; this person was usually Meister, the chief clerk; a carbon of each check was made and initialled by the department head, and on this initialling or O. K. the check was signed by those who had authority to do so. The checks that went through the office department came under Meister, and on them his initials were signed. No further investigation was made by the other signers except that on the vouchers there would be a memo of some sort showing some sign of whoever 0. K.’d them, and this information was supposed to be taken from the books of the company. Meister’s duty was to supply the name of the payee with supporting information taken from the company’s books; those who were authorized to sign checks did so on receiving the 0. K. by Meister and supporting data without any further inquiry, so that for this corporate act of plaintiff three persons acted, Meister in making out the cheeks, and two others in signing them. Albert D. Viele was the general bookkeeper and one of those authorized to sign the checks. The others were Trask, Allman and Newman, and two signatures out of the four were sufficient, but there had to be two. Viele’s duties were handling the general accounts, and making up profit and loss statements. He testified that he had no payable accounts and had no books for accounts payable; that he had no memorandum of any kind for accounts payable, and got the memorandum as to whom the money was coming from the departments which would bring bills for payment. The loan department handled advances for products coming into the warehouse to be stored for the account of others, and what was thus owed shows in the loan-ledger. Viele further testified that that is not where they got the data from to make checks to pay people. This leaves the information as to where Meister got his supporting data undisclosed. Viele made a permanent record of every voucher in their order on the voucher book. The check that goes to the customer has a memo attached as to what the payment is for. It is a conceded fact that the names of the payees in all of the 50 checks were indorsed upon the checks by Meister, and that such indorsements were forgeries committed by Meister.

Defendant argues in its brief: “So for the performance of this one act by the corporation it was necessary that three persons act, Meister who designated the payee, the two others who affixed the signature. If these two affixed the signature to a check where Meister did not O. K. it, their act would be outside of their authority.”

By parity of reasoning, so was Meister’s act outside of his authority when he made checks payable to persons to whom the plaintiff was not indebted. Meister’s authority was limited to the drawing of checks payable to the order of creditors of plaintiff. There is no evidence which would warrant the inference that Meister was authorized to draw checks to the order of anyone but those to whom the plaintiff was indebted. That was the limitation of Meister’s authority as shown by the evidence. And counsel further argues: “It follows, therefore, that the act of Meister in thus designating the payee, was the act of the corporation. ” This is not a logical deduction from the proofs. Meister had no authority to make checks payable to anyone to whom the plaintiff was not indebted.

Defendant contends in an effort to sustain the judgment in its favor that “the checks in question were payable to living persons not intended to have any interest therein and were, therefore, payable to bearer,’ ’ and cites section 9, Cahill’s St. ch. 98, If 29; and further contends that “the plaintiff drew these checks not intending that the payee should ever have possession thereof or any interest therein. The payees, therefore, were in law, fictitious persons, and the checks, being in law, payable to bearer, were transferable by delivery. The bank, therefore, had the right to enforce them against the maker without having to claim title through a forged indorsement. ” In support of that doctrine they cite Bartlett v. First Nat. Bank, of Chicago, 247 Ill. 490, and quote from the Bartlett case the following:

“Where a grain company’s agent draws drafts'on the company payable to real persons or bearer, not intending that the payees should ever' have possession of the drafts or any interest therein, ór that they should indorse them, but intending to indorse such names himself, the payees are, in law, fictitious persons, and the drafts, being, in law, payable to bearer, are transferable by delivery, so that a bank which pays them may enforce them against the drawee without having to claim title through the agent’s forged indorsement.’ ’

The infirmity in this contention, we think, lies in the assumption that the checks on which the names of the payees were forged by Meister were the checks of plaintiff. It will readily be seen that the plaintiff had no intention that the checks should be payable to fictitious persons. That was the act of the criminal employee, the forger of the payees’ names, and done without any authority or direction of his employer, the plaintiff. The whole argument of counsel is based upon the assumption that the criminal act of Meister was that of the plaintiff corporation, and that the plaintiff intended that the payees should be treated as fictitious persons, whereas, the proofs demonstrate conclusively and undisputedly that they were real persons, all of whom at some time theretofore had business dealings with the plaintiff.

The contention is made that the payees of the checks were fictitious.persons, and therefore that they were payable to bearer, in force of section 9 of the Negotiable Instruments Act, supra, where it is provided that: “The instrument is payable to bearer . . ; when it is payable to the order of a person known by the drawer or maker to be fictitious or non-existent or of a living person not intended to have any interest in,it. . . The proofs show undisputedly, except as to one of the payees, that they all were going concerns and had business transactions with the plaintiff, and the books of the plaintiff in evidence so demonstrated. How can it in reason be contended that the payees of these checks were known by the plaintiff to be fictitious or nonexisting or living persons not intended to have any interest in the checks? It was not even the intention of Meister that the payees should be regarded as fictitious persons, because he forged their names as indorsers of the checks. Meister’s intention was to forge the names of the payees and this he did, and the payees were all persons not only doing business with the plaintiff and known to the officers of the plaintiff corporation, but all the payees of the checks in question had before the making of the checks in dispute received checks in a business way and through business dealings with the plaintiff. There was no intention on the part of the plaintiff that the payees should be regarded as fictitious persons. That was the criminal intention and action of Meister. Further the checks were not treated as being payable to fictitious persons or to bearer. The names of the several payees were indorsed upon the several checks by Meister, the forger, and for the payment by the. defendant bank of the checks with the forged indorse- - ment the bank is liable to plaintiff.

We think the reasoning of the case of Shipman v. Bank of the State of New York, 126 N. Y. 318, is more analogous to the case at bar than is that of the Bartlett case, supra. In the Shipman case the court said:

“We are of the opinion, upon examination of the authorities cited by counsel on both sides, that this rule applies only to paper put into circulation by the maker with knowledge that the name of the payee does not represent a real person. The maker’s intention is the controlling consideration which determines the character of such paper. It cannot be treated as payable to bearer, unless the maker knows the payee to be fictitious and actually intends to make the paper payable to a fictitious person.”

And then this dictum of the court follows:

“Bedell (the employee who signed the names of the payee) of course knew that the payees were fictitious, but he was not acting within the scope of his employment, but in carrying out a scheme of fraud upon the plaintiffs, and under such circumstances his knowledge cannot be imputed to his principals.” That reasoning applies with equal force to Meister, plaintiff’s dishonest employee. And in Seaboard Nat. Bank v. Bank of America, 193 N. Y. 26, the court said:
“The secret intention of a criminal, contrary to his express intention, and the avowed purpose for which he obtains possession of a draft, does not give the criminal ownership of the draft, or the legal right to change a draft, payable to a real payee to one, payable to bearer. There is no presumption arising from the facts proven that the name of ‘Carroll Brothers’ was intended as a fictitious or nonexisting payee. Such intention, to be effective, must necessarily arise from knowledge and exist as an affirmative fact in the mind of the drawer of a draft at the time of its delivery. ’ ’

And so in the case at bar there is no presumption arising from the disputed facts in the record that the names of the several payees in suit were intended as fictitious or nonexisting payees. Plaintiff had not even a suspicion that Meister was acting illegally, and had no knowledge of his forgeries until these forgeries were subsequently discovered and Meister had fled.

We think that the Bartlett case, supra, is readily distinguishable from the case in hand, because, as we read the opinion, the ultimate decision of the case went off on an entirely different ground, which was the negligence imputable to Bartlett in making it possible for his agent, Walsh, to commit the forgeries which he did. On this point the court said:

“We think, however, the undisputed evidence in this record shows that the negligence of the appellants was so gross that they ought not, as a matter of law, to be permitted to recover from the First National Bank of Chicago the amounts of the drafts upon which the names of the farmer payees were forged by R. L. Walsh, who was the agent of the appellants. The appellants knew their agent, R. L. Walsh, was drawing drafts against them with which to obtain money from the banks to pay for grain which he was buying upon their account, and that Walsh was wrongfully endorsing the names of the payees in whose favor said drafts were drawn, upon said drafts. They knew that Walsh was short upon grain which he had purchased for them, and they also knew that Walsh persisted in drawing drafts and endorsing them in the names of the payees after they had forbidden him to do so. While in possession of this information they retained him in their employ, and permitted him to continue drawing and endorsing said drafts without informing the banks who were handling such drafts of the fact that Walsh was wrongfully endorsing those drafts.
“When one of two innocent parties must suffer loss by reason of the wrongful acts of a third party, the rule is almost universal that the party who has made it possible, by reason of his negligence, for the third party to commit the wrong must stand the loss. In this case, if the appellants had notified the banks who were handling said drafts that R. L. Walsh was forging the names of the farmer payees in order to get the money on the said drafts from the banks, the loss which was sustained by the passing of said drafts would never have occurred. This they did not do, but remained quiet so long as they thought they were getting the benefit of the money that was paid on said drafts, and only complained when they learned that their agent, Walsh, was taking advantage of the position in which they had placed him by his appointment as their agent, with authority to draw drafts, by drawing drafts to farmers who had not delivered grain, and endorsing the names of such farmer payees upon the drafts and drawing .the money from the banks thereon and appropriating the same to his own use. We think it clear if the appellants enjoyed the benefits which accrued to them from the business done by Walsh so long as it was done honestly, that when Walsh became dishonest and appropriated the money which he drew by reason of forged endorsements they should suffer the loss which followed his rascality, and not be permitted to unload such loss upon the banks that innocently handled said drafts.”

Answering defendant’s insistence that the checks in suit were binding on plaintiff as its own, and that the knowledge of Meister of the irregularity in the checks was imputable to plaintiff, it is the law that the controlling factor is the knowledge of the maker of the checks, and that the further test is the intention of the maker of the checks. There is no evidence in the record charging plaintiff with knowledge that the checks were payable to a fictitious person, nor that it was the intention of the maker of the checks that they should be paid to persons other than the payees, nor is the intention of Meister imputable to plaintiff. .

In Daniel on Negotiable Instruments, vol. 1, p. 188, 6th Ed., it is said:

“A fictitious person is one who, though named as payee has no right to the instrument because the drawer of it so intended. . . . Under the statute, in order for such an instrument to be payable to bearer, the fact that the payee is a fictitious or nonexisting person must be coupled with the knowledge of the person mailing it.”

In Seaboard Nat. Bank v. Bank of America, supra, the court quotes from Selover on Negotiable Instruments Law as follows:

“The doctrine that a check or bill made payable to a fictitious person is payable to bearer, and negotiable without indorsement if the fictitious character of the payee was known to the parties, originated in England, and in each of the cases holding the doctrine the decision was based on the fact that the acceptor knew, at the time of his acceptance, that the instrument was payable to a fictitious person. If the drawer or maker of an instrument did not know that the payee was a fictitious or nonexistent person, and did not intend to make the paper payable to such person, paper payable to the order of such person cannot be treated as payable to bearer, for the intention of the maker or drawer is the test.”

And likewise cites Eaton & Gilbert on Commercial Paper, and quotes the following :

“Under the common law a bill payable to a fictitious person or his order was neither in effect payable to the order of the drawer nor to the bearer, unless it was shown that the circumstance of the payee being a fictitious person was known to the acceptor. To show that the acceptor was aware that the payee was a fictitious person, evidence is admissible of the circumstances under which he accepted other bills payable to fictitious persons.
“The fictitiousness of the maker’s direction to pay does not depend upon identification of the name of the payee with some existing person, but upon the intention underlying the act of the maker in inserting the name. The rule as to an instrument payable to the order of a fictitious or nonexisting person applies only to paper put in circulation by the maker with knowledge that the name of the payee does not represent a real person. The maker’s intention is the controlling’ consideration. It cannot be treated as payable to bearer unless the maker knows the payee to be fictitious, and actually intends to make the paper payable to the fictitious person.”

This court held in National Surety Co. v. Halsted Street State Bank, 246 Ill. App. 92, that forgery of the indorsement of the payee’s name in a draft, the payee being a real person, does not constitute the draft payable to a fictitious person and subject to the provision of Cahill’s St. ch. 98, 29, that instruments payable to fictitious persons are payable to bearer.

In American Exp. Co. v. Peoples’ Sav. Bank, 192 Iowa 366, in which the trial court directed a verdict in favor of the defendant on the theory that the drafts in suit were payable to fictitious or nonexisting persons, the court reversed that judgment saying, inter alia:

“The plaintiff company, as drawer, intended that these drafts should- be paid to the named payees, and not to the purchaser, Crozer, and it was not known by the drawer that these drafts were payable, to the order of fictitious . . . payees. This being true, the drafts were not payable to bearer.
“Were they payable to Crozer himself, so that his endorsements of them are valid? No doubt he intended them to be so payable, although he indorsed by writing the names of the payees. ... In other words, Crozer himself intended to be the payee, but the drawer did not intend to make him so. If, in fact, there was a genuine firm, it alone could indorse; if there was not a genuine firm, then nobody could endorse. The drafts would not be payable to bearer, because the drawer did not know that the payees were fictitious or non-existing. They would not be payable to Crozer, because the drawer did not intend that the drafts should be so payable. . . .
“The intent of the drawer is the test, and this intention must necessarily arise from knowledge, and exist as an affirmative fact in the mind of the drawer at the time of the delivery of the paper.”

In National Union Fire Ins. Co. v. Mellon Nat. Bank, 276 Pa. St. 212, the court said :

“In addition to this, the fictitious or nonexisting persons must have been known to the drawer of the drafts to be such, before the result contended for could operate on the instruments, but the drawer knew no such thing, but just the opposite, that each of the payees was a real, existing person named as the insured in the policy of insurance issued by the drawer of the draft. ’ ’

In Grand Lodge of Kansas A. O. U. W. v. Emporia Nat. Bank, 101 Kan. 369, it was said:

“The Grand Lodge did not know that Alice Evans was a fictitious person. It supposed ‘that she was an existing person, and issued the order to that person. When a negotiable instrument is knowingly issued to a fictitious person, it is payable to bearer because there is no one to endorse it; but when such an instrument is issued to a person supposed to be in existence, it is not knowingly issued to a fictitious person. When the instrument is not knowingly issued to a fictitious person, it must be endorsed by the person to whom it is issued. The order issued to ‘Alice Evans ’ was not payable to bearer.”

By parity of reasoning the checks in question were not payable to a fictitious person but to a person named, which checks must be indorsed by the persons named and to whom they were issued. This mode of procedure cannot be dispensed with.

In Harmon v. Old Detroit Nat. Bank, 153 Mich. 73, it was held that making checks, drawn in favor of fictitious persons, payable to bearer, has application only to cases in which the drawer knowingly draws the check to the order of a fictitious payee, and does not apply to a case where a trusted employee of a railroad company fraudulently erased the name of the proper payee to a valid warrant and substituted the name of a fictitious person. City of St. Paul v. Merchants’ Nat. Bank, 151 Minn. 485; National Surety Co. v. National City Bank of Brooklyn, 184 App. Div. 771, 172 N. Y. Supp. 413.

In Hamlin’s Wizard Oil Co. v. United States Exp. Co., 265 Ill. 156, the court said:

“If one permits another to clothe himself or to be clothed with apparent authority to act as his agent, any person who has been induced to rely and act upon the appearance of authority can invoke the estoppel. That was the basis of the decision of Bartlett v. First Nat. Bank of Chicago, 247 Ill. 490.”

The bank paying a check on a forged indorsement is liable to the maker of the check for the amount thereof. Robertson Banking Co. v. Brassfield, 202 Ala. 167, in which it is said:

“It is undisputed that the check in question was made payable to a fictitious person; but, in order for the defendant to. have treated it as payable to bearer, the burden was upon it to show that Brassfield, the drawer knew that Johnson, the payee, was a nonexisting person.” Citing Boles v. Harding, 201 Mass. 103.

In Jordan Marsh Co. v. National Shawmut Bank, 201 Mass. 397, the court said:

“The question arises whether the making of a check payable to a fictitious or nonexisting person, through negligent failure to discover the fraud by which the check is obtained, stands differently from making a check to an actual person, in reference to its effect upon payment by the defendant. We are of the opinion that there is no difference in law. In either case it is the duty of the bank to see that there is a genuine endorsement. ’ ’

And in Shipman v. Bank of the State of New York, supra, the court said:

“The law imposed no duty upon the plaintiffs to do more than they did to ascertain whether the endorsements on the checks were genuine. The defendants’ contract was to pay the checks only upon a genuine endorsement. The drawer is not presumed to know, and in fact seldom does know, the signature of the payee. The bank must, at its own peril, determine that question. It has the opportunity, by requiring identification when the check is presented, or a responsible guaranty from the party presenting it, of ascertaining whether the endorsement is genuine or not. When it returns the check to the depositor, as evidence of a payment made by his direction, the latter has the right to assume that the bank has ascertained the fact to be that the endorsement is genuine.”

The forgeries were discovered on October 28, 1924, and on that date the defendant bank was notified of the discovery. The plaintiff is therefore entitled to interest at the statutory rate of 5 per cent from the last-mentioned date to the time of payment. Cahill’s St. ch. 74, U2; Schwitters v. Springer, 236 Ill. 271.

The checks in suit were not payable to a fictitious person or to bearer, but to payees named, and the defendant bank having paid those checks on forged indorsements is liable to pay the same with interest to the plaintiff, and the plaintiff was not guilty of any negligence which affects its right of recovery.

For the errors indicated in this opinion the judgment of the circuit court is reversed and a judgment is entered here for plaintiff for the sum of $5,070.19, together with interest at 5 per cent from October 28, 1924, to the date of the filing of this opinion, January 30,1929, making the total sum for which judgment is here entered in favor of the plaintiff of $6,148.97.

Judgment reversed and judgment here for plaintiff for $6,148.97.

Wilson and Byner, JJ., concur.


author: Mr. Justice Ryner

text:
    Charles Durfee, by William Durfee, Appellee, v. City of Chicago, Appellant.
    Gen. No. 32,788.
    Heard in the third division of this court for the first district at the June term, 1928.
    Opinion filed January 30, 1929.
    Samuel A. Ettelson, Corporation Counsel, and William D. Saltiel, City Attorney, for appellant; Charles M. McDonnell, Assistant City Attorney, E. Marshall Amberg and Rot S. Gaskill, Assistant Corporation Counsel, of counsel.
    Frank T. McDermott and J. W. Hallam, for appellee.
   Mr. Justice Ryner

delivered the opinion of the court.

The plaintiff, a minor, obtained a judgment for $5,000 against the defendant in the superior court of Cook county. The action was in tort to recover damages for personal injuries sustained by the plaintiff, caused by his coining in contact with certain electric light wires of high voltage. The wires extended through a hollow iron pole and constituted part of the lighting system maintained by the defendant, City of Chicago. The judgment was based upon the verdict of a jury. The defendant brings this appeal and contends that the evidence discloses that it was not guilty of negligence.

The accident happened on October 1, 1926, at about 6:30 o’clock in the evening. The plaintiff, then of the age of eight years, was playing with two other boys on the public sidewalk on East Chestnut Street in the City of Chicago. The sidewalk was wet and the plaintiff slipped and fell so that parts of his body came in contact with the wires and were severely burned. The iron pole, containing the wires, was about 10 or 12 feet in length and at the time of the accident was not standing upright but was bent over so that the top was about 3 feet from the edge of the sidewalk.

On the afternoon of the day before the accident some one bácked a coal truck against the pole, bending it over so that it extended out into the street. The driver of the truck swung the pole around out of the street until it was parallel with the edge of the sidewalk and then went on his way. That evening at about six o’clock two employees in the electrical department of the defendant removed the globe and globe seat on the pole, which permitted the two wires inside to protrude from the end, and then bound the wires together with a brass screw connector and wound 8 or 10 layers of rubber tape around them. They testified that after they had taped the wires they put the globe seat back on so that the ends of the wires would not be exposed. It was an iron support for the globe and weighed about five pounds. One of them said that they attached it with three small thumb screws, provided for that purpose, which they turned as far as possible with thumb and finger, and then he thought it likely that they used a pair of pliers, but that he did not remember what he did that particular time. A witness for the plaintiff testified that the globe seat was not replaced but that he placed it, together with the globe, in a near-by shed. After the wires had been taped the pole was left in the same position in which the two employees of the city found it. No barricade was placed around it and no watchman was stationed at the place. Apparently the defendant paid no further attention to the pole and wires until 24 hours later, when the accident happened.

At the time the plaintiff was injured the ends of the wires were protruding beyond the end of the pole a distance of 10 to 12 inches and sparks were coming from them. The globe seat was missing. This permitted the wires to protrude. If the defendant’s employees, as they testified, replaced the seat at the time they taped the wires, then it must have been removed by some third person prior to the accident. There is no showing that the defendant had any knowledge of its removal prior to the time the plaintiff was injured. The two employees in the electrical department of the defendant testified that shortly after the accident they examined the wires, and found a “V” shaped cut in the tape just below the brass connector, which appeared to have been- made by a sharp instrument of some kind, and that there were several small white spots on the surface of the friction tape which appeared to be burns.

Several witnesses for the defendant testified that the tape used was sufficient to completely insulate a wire carrying a voltage in excess of the amount carried by the wires in question; that before the accident the pole was not charged with electricity and that the insulation inside the pole was not defective. There was no contradiction of this testimony. The plaintiff was the only witness who testified as to what part of the pole or wires he came in contact with. He said that as he fell his hand struck the wires. His testimony was corroborated by that of the witness who said he saw sparks coming from the exposed wires.

No complaint is made in the brief of the defendant in regard to any of the rulings or action's of the trial court in the reception or exclusion of evidence, or in the giving or refusing of instructions except that the court should have directed a verdict in favor of the defendant at the close of all of the evidence. In support of this contention it is urged that the proximate cause of the plaintiff’s injuries was the cutting of the tape by an agency not under its control and that it had no notice, actual or constructive, that the insulation had been cut or damaged.

In the case of Sausier v. Commonwealth Electric Co., 240 Ill. 201, the Supreme Court of this State said: “Electricity is a silent, deadly and instantaneous force, and a person or company handling it is bound to know the dangers incident to its use in a public street or alley, and is bound to guard against accident by a degree of care commensurate with the danger incident to its use.”

The same degree of care is required of a municipality. Deming v. City of Chicago, 321 Ill. 341. In the case of Slinois Cent. R. Co. v. Siler, 229 Ill. 390, the court said:

“In order to make a negligent act the proximate cause of an injury it is not necessary that the particular injury, and the particular manner of its occurrence, could reasonably have been foreseen.”

The court also quoted, with approval, from the opinion in the case of Atchison, T. & S. F. Ry. Co. v. Stanford, 12 Kan. 354, as follows:

“Any number of causes and effects may intervene between the first wrongful cause and the final injurious consequence, and if they are such as might with reasonable diligence have been foreseen, the last' result, as well as the first and every intermediate result, is to be considered, in law, as the proximate result.of the first wrong cause.”

Applying the foregoing principles of law, to the facts in the case we think that the questions whether the defendant was negligent and, if so, whether its negligence was the proximate cause of the plaintiff’s injuries, were properly submitted to the jury. The defendant could easily have avoided the accident by barricading the pole, as it did after the accident, or by stationing a watchman at the place or by removing the old pole and installing a new one. The pole, bent over until it almost touched the sidewalk, would naturally attract the attention of passersby and afford a temptation to children and even older persons, mischievously or malevolently inclined, to remove the globe seat, if one there was, and to tamper with the insulation. The case is not unlike that of Elgin, A. & S. Traction Co. v. Wilson, 217 Ill. 47, where the court held that a street car company was not exempted from liability because of the tortious act of a boy in moving the lever controlling a switch, during the temporary absence of the employee in charge of it, saying:

“Whether the failure to have the switch appliances provided with locks of some character, or, in the absence of such lock, to have a guard to watch and see that the switch was not improperly thrown or turned, constituted actionable negligence, was properly submitted by the court to the jury.”

For the foregoing reasons the judgment of the superior court of Cook county is affirmed.

Affirmed.

Holdom,‘P. J., and Wilson, J., concur.


text:
    James M. McConkey, Appellee, v. Pennsylvania Railroad Company, Appellant.
    Gen. No. 32,827.

      Heard in the third division of this court for the first district at the June term, 1928.
    Opinion filed January 30, 1929.
    Rehearing denied February 14, 1929.
    Loesch, Scofield, Loesch & Richards, for appellant.
    Alonzo H. Ranes and Corinne L. Rice, for appellee.
   Mr. Justice Ryner

delivered the opinion of the court.

The plaintiff, in an action in tort, obtained a verdict and judgment upon the verdict in the circuit court of Cook county, allowing him damages in the sum of $25,000. He was struck and run over by a car or cars operated by the defendant and, as a result, suffered the loss of an arm and sustained other serious injuries. The defendant brings' this appeal and says that the trial court, at the close of all the evidence, should have granted its request for a directed verdict; that there was error in the giving of plaintiff’s instruction numbered 1; that defendant’s instruction numbered 17 should have been given, but was refused; that the court abused its discretion in permitting counsel for the plaintiff, in his closing argument to the jury, to discuss the amount of damages to be assessed, when counsel for the defendant, in his argument, had wholly refrained from touching upon the subject; that counsel for the plaintiff made intemperate and prejudicial remarks before the jury, and that the damages assessed are excessive.

The defendant made a motion for a new trial, which was in writing and specified the points relied upon. It was denied. The assignment of errors upon the record is, with one or two unimportant exceptions, a duplicate of the motion. The motion for a new trial, together with the exception to the ruling of the court, is incorporated in the bill of exceptions and set out in haec verba in the abstract of record, but no error is assigned on the ruling of the trial court in denying* the motion.

At the outset it is insisted on behalf of the plaintiff that the record presents nothing for the consideration of this court but that the defendant, by failing to assign as error the ruling of the trial court in denying the motion for a new trial, has waived the right to challenge the sufficiency of the evidence to support the verdict and also the right to complain of the court’s action in the giving or refusing of instructions. Counsel for the defendant reply by saying that they are not barred from urging that there was error in the giving or refusing of instructions; that the trial court erred in permitting the counsel for plaintiff to indulge in improper and intemperate remarks and argument before the jury, or that the damages assessed by the jury are excessive. They further say that “the sufficiency of the evidence to support the verdict in the case at bar is neither an important nor a controlling question. ’ ’

The authorities sustain the contention made on behalf of the plaintiff that the right to question the sufficiency of the evidence to sustain the verdict has been waived. The defendant, in effect, concedes this. • The cases also hold that without a motion for a new trial, exceptions to the rulings of the trial court, in the giving or refusing of instructions, and in permitting the attorneys to make improper remarks before the jury, are properly preserved for review by a bill of exceptions. Under the language of these authorities the same rule should apply to the right to question the amount of the damages assessed.

In the much cited case of Yarber v. Chicago & A. R. Co., 235 Ill. 589, the Supreme Court of this State discussed at length the origin and history of the motion for a new trial. It was pointed out that the right to have the action of the trial court in overruling a motion for a new trial reviewed was statutory but that the statute did not have the effect of changing the practice with reference to questions brought into the record by bills of exceptions. The court held that the right to have reviewed rulings of the court during the progress of the trial, such as admitting or excluding evidence, giving and refusing instructions, was fully preserved by a bill of exceptions without the making of a motion for a new trial. On the question of the sufficiency of the evidence to support the verdict, however, it was held indispensable to the right of review that a motion for a new trial be made and the exception to the ruling of the court in denying the motion properly preserved in the bill of exceptions, the court saying:

“In order to bring the question of the sufficiency of the evidence to sustain the verdict before this court for review it is necessary for the losing party to make a motion for a new trial, and, upon its being overruled, to except to such ruling, and to include such motion, the order overruling the same, and his exception thereto, together with the evidence, in the bill of exceptions ; but the propriety of giving or refusing instructions or the admission or rejection of evidence where the rulings of the court thereon have been excepted to and incorporated in the bill of exceptions has always been subject to review, regardless of the fact that no motion for a new trial was made. (Illinois Central Railroad Co. v. O’Keefe, 154 Ill. 508.)”

The denial of.the motion must also be assigned as error. Louis K. Liggett Co. v. Strum, 243 Ill. App. 576; Drake Standard Machine Works v. Brossman, 135 Ill. App. 209. The judgment of the court in the latter case was reversed by the Supreme Court, but solely upon the ground that error had been committed in the admission of improper evidence.

In the case of Pate v. Blair-Big Muddy Coal Co., 252 Ill. 198, the court held that a motion to direct a verdict raises only the legal question whether there is any evidence tending to support a verdict. No motion for a new trial was made, but the court reversed the judgment of the trial court on the sole ground that it erred in refusing to give the peremptory instruction to the jury to find for- the defendant. The case of Yarber v. Chicago & A. R. Co., supra, was cited as authority for the ruling. Other cases holding that an exception to the ruling of the trial court in refusing to give a peremptory instruction to the jury at the close of all the evidence is properly preserved for review by a bill of exceptions, without making a motion for a new trial, are: Wolf v. Chicago Sign Printing Co., 233 Ill. 501; Clark v. Chicago, R. I. & P. R. Co., 231 Ill. 548; Metropolitan Discount Co. v. Pitsch, 208 Ill. App. 407; Knipping v. Chicago Telephone Co., 184 Ill. App. 48; Stanhaus v. Paradise Coal & Coke Co., 169 Ill. App. 75; Myers v. Buell, 142 Ill. App. 467.

Defendant’s written motion for a new trial specified the points relied upon. Included in the points were matters which are properly here for review upon a bill of exceptions without the making of a motion for a new trial. The question then arises whether the inclusion of such matters in the motion and the failure to assign as error the ruling' of the court in denying the motion constituted a waiver of the right to ask this court to review the same matters by a bill of exceptions. The language of the opinion in Yarber v. Chicago & A. R. Co., supra, indicates that, such is not the law. The court in that case, at least, went so far as to hold that the practice relating to the use of bills of exceptions to present matters for the consideration of a reviewing court was not changed by the statute conferring the right to have reviewed the action of the trial court in denying a motion for a new trial.

The defendant preserved its exceptions to the rulings of the trial court in the giving and refusing of certain instructions, and in permitting the attorney for the plaintiff to make improper and intemperate remarks in the presence of the jury, in the bill of exceptions. This unquestionably is the correct practice. We do not consider that these points were waived by specifying them in the motion for a new trial and then not assigning as error the denial of the motion. Certainly the defendant should not be held to have placed itself in a worse position than if it had made no motion for a new trial at all.

We shall consider the evidence only to the extent necessary to review the rulings of the trial court which are properly here for consideration. The place of the accident was in Effingham, Illinois, at or near Henrietta Street, a public highway running north and south. The defendant maintained 10 or 11 railroad tracks crossing this street, six of them being switch tracks. At this point there were no sidewalks on either side of Henrietta Street. Vehicles and pedestrians travelled over planks laid between the tracks and parallel with them. The planks were about 18 or 20 feet in length.

On June 4, 1925, at about 9 o’clock in the evening, a switching crew of the defendant was engaged in classifying freight pars, according to destination, in its switch yard west of Henrietta Street. This operation consisted in shoving cars, by means of a switch engine, eastward to a switching point where a switchman shifted the detached cars to the different tracks. The switching point was located about 800 feet west of Henrietta Street. From this point the detached cars travelled under their own momentum and without control by anybody. The cars were not provided with lights or other means of giving warning of their approach. Two cars were “shunted” or “kicked” onto track No. 3 and when the “lead” car came to a stop its easterly end projected over the west end of the crossing planks on Henrietta Street to the extent of one or two feet.

Counsel for the plaintiff contend that, at this stage of the events which led up to the accident, the plaintiff started walking south on Henrietta Street from the watchman’s shanty, which was located north of the tracks, and was in the act of passing in front of the two cars when they were struck by some more cars that had been “kicked” onto track 3, causing them to move forward and strike the plaintiff. Counsel for the defendant contend that before the plaintiff reached track 3 the two cars in question had been moved forward to the east by other cars kicked onto the track, so that the east end of the ear in front extended easterly beyond the east end of the plank crossing a distance of three or four feet and that the plaintiff at the time of the accident was not walking on the planks, but off and east of them. There is some conflict in the testimony on this point which presented a question of fact for the determination of the jury. If, in considering the question whether the plaintiff was in the exercise of ordinary care for his own safety, the jury found the facts to be as contended for by counsel for the plaintiff there is ample evidence in the record to warrant such a deduction.

It is first urged by counsel for the defendant that the trial court erred in not directing the jury to find it not guilty as to the first count of the declaration because it appeared, as a matter of law, that the plaintiff was guilty of contributory negligence. This conténtion is based upon the fact that it was a quiet night; that the crossing watchman testified that he heard the noise of approaching cars, but that the plaintiff and two witnesses for him testified that they looked and listened but saw nothing and heard nothing that indicated impending danger on account of the approach of cars. It is further contended that the watchman could do nothing to prevent the accident because he had the right to assume that the plaintiff heard the noise of approaching cars, and that the plaintiff would stop until the crossing was clear. Little stress is laid upon the fact that the witnesses for the plaintiff said they saw nothing. The reason for this is rather obvious. The accident happened at about 9 o’clock in the evening and there is no showing that there were sufficient lights to show the cars being “kicked” onto the various switch tracks. But it is said that the testimony of the plaintiff and his witnesses is highly improbable, and “that none are so deaf as those who will not hear.” We are not prepared to say that as a matter of law the plaintiff was guilty of contributory negligence simply because the watchman for the defendant contradicted the testimony of the plaintiff and that of two witnesses in his behalf. It was a question of fact for the jury. Pittsburgh, Ft. W. & C. Ry. Co. v. Callaghan, 157 Ill. 406. This is true even though thé person injured was, at the time of the accident, engaged, in violation of an ordinance or statute, in the act of climbing through a string of cars at a railroad crossing. Lerette v. Director General of Railroads, 306 Ill. 348. Failure to look or listen does not constitute negligence per se but ordinarily presents an issue of fact for the determination of the jury. Heidenreich v. Bremner, 260 Ill. 439. Even if we assume that the watchman and the field switchmen, as they testified, heard cars approaching Henrietta Street from the west and that the cars were making the usual noise of moving cars, it cannot be said as a matter of law that the plaintiff was guilty of contributory negligence. The plaintiff was not in a position to know onto what tracks cars were being “kicked” or how far they would travel before stopping. Certainly he was not obliged to wait until the defendant was through with all of its switching operations before attempting to pass along a public highway. None of the witnesses for the defendant attempted to characterize the kind or extent of the noise made by the cars after they had been “kicked” or “shunted” onto the different switch tracks. It may well be, as was said in Illinois Cent. R. Co. v. Baches, 55 Ill. 379, that these cars were “silent” in their approach and “dangerous” in their force.

It is next insisted as a ground for the reversal of the judgment of the trial court that the defendant was entitled to a directed verdict as to the third count of the declaration because the evidence does not support, the charge of wilful and wanton conduct on the part of the defendant. This point, literally taken, is wholly without merit, as there is no assignment of error sufficient to raise any question as to the sufficiency of the evidence to support the verdict. In the discussion of the point, however, counsel say that whether there is any evidence fairly tending to show that the negligence charged was the proximate cause of the injury is a question of law properly raised by a motion for a directed verdict and that there is a clear distinction between a negligent and a wilful tort. With these propositions of law there can be no quarrel. The legal question arises when it come to their application to the facts in the instant case. In this connection two other fundamental principles of law are to be considered. One is that it is not reversible error to deny a motion to take from the jury counts of a declaration where there is no evidence tending to support them if there is one good count with evidence tending to support it, as it will be presumed that the jury based its verdict on the count supported by the evidence. Scott v. Parlin & Orendorff Co., 245 Ill. 460. The other is that the question as to whether the evidence supports the charge of wilful and wanton conduct is ordinarily for the jury to determine. Heidenreich v. Bremner, 260 Ill. 439. In the latter case the court said:

“Whether a personal injury has been inflicted by gross or wanton negligence is a question of fact to be determined by the jury. (Illinois Central Railroad Co. v. Leiner, 202 Ill. 624; Chicago, Burlington and Quincy Railroad Co. v. Muroioski, 179 id. 77.) It is not always easy to state what degree of negligence the law considers equivalent to wanton or gross negligence. The character of an act as being wanton or gross is greatly dependent upon the circumstances of each case. To constitute willful and wanton negligence it is not always necessary to prove that the defendant was actuated by ill-will toward the plaintiff. An entire absence of care for the life, person or property of others, if such as exhibits indifference to consequences, makes a case of constructive or legal willfulness, such as charges a person whose duty it was to exercise care with the consequences of the legal injury. 1 Thompson on Negligence, sec. 22; Neice v. Chicago and Alton Railroad Co., 254 Ill. 595; Chicago Terminal Railroad Co. v. Kotoshi, 199 id. 383; Illinois Central Railroad Co. v. Leiner, supra.

This rule is peculiarly applicable to the present case when we consider the fact that the Supreme Court of this State has on several occasions said that the use of a “running” or “flying” switch or the “shunting” or “kicking” of cars is very dangerous and constitutes negligence. Chicago Junction Ry. Co. v. McGrath, 203 Ill. 511; Illinois Cent. R. Co. v. Hammer, 72 Ill. 347; Chicago & A. R. Co. v. Garvey, 58 Ill. 83; Rlinois Cent. R. Co. v. Baches, 55 Ill. 379. In the latter case the court said that such practice seemed to amount to a high degree of negligence.

It is further urged that there was an entire lack of evidence to support the first and third counts of the declaration. Originally the declaration consisted of three counts, but the second count was withdrawn during the trial of the case. Each one of the remaining counts in substance charged as the proximate cause of the accident the negligent operation by the defendant of one of its locomotive engines and car or cars. It is said that the proof fails because the undisputed evidence shows that there was no engine nearer than 500 feet from the scene of the accident. This point is devoid of merit. No matter where situated, the engine used in switching the cars was the force that put them in motion and permitted them to pass on in the night without human control and without light, bell or whistle, to stop only when the momentum had expended its force. Furthermore, each count expressly charged that the plaintiff was struck and injured by one of the defendant’s box cars. The second count charged that the defendant wilfully and wantonly “operated one of its locomotive engines and car or cars without blowing any whistle, or ringing any bell, at a high and dangerous rate of speed,” etc. We cannot adopt the narrow construction insisted upon by counsel that the charge of failure to blow a whistle or ring a bell applied only to the engine. It applied to the entire operation, commencing with the starting of the cars in motion and then releasing them by the “kicking” or “shunting” process to be shifted onto the various switch tracks down to their respective points of destination.

It is next contended on behalf of the defendant that the court committed reversible error in giving to the jury instruction No. 1 tendered by the plaintiff. It is said that the wording of the instruction was such that the giving of it was, in effect, to read to the jury the two counts of the declaration. It has been repeatedly held that the better practice is for the court in its instructions to define the issues for the jury rather than to refer them to the pleadings to ascertain what they are. While the practice of giving instructions like the one in question is to be condemned, it does not constitute reversible error. McFarlane v. Chicago City Ry. Co., 288 Ill. 476, and Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544. Particularly is this true where the instruction given is not peremptory in form.

Counsel for the’ defendant further insist that the trial court erred in refusing to give to the jury defendant’s instruction No. 17. This instruction reads:

“The court instructs you that it. was the duty of the plaintiff at said time and place in approaching and passing over said crossing -to exercise ordinary care to avoid being injured. If you believe that ordinary care required the plaintiff to look and listen before entering upon the railroad tracks crossing said intersection and while crossing over the same, and if you further believe that he did not so look and listen and that if he had so looked and listened he could have avoided the injury to himself at said time and place and that in consequence of the fact that he did not so look and listen he was injured, then he cannot recover in this case and you should find the defendant not guilty.”

Among the instructions given at the request of the defendant were numbers 11 and 15, which read, respectively, as follows:

“11. The court instructs you that a railroad highway crossing is a dangerous place and it is the duty of a person approaching such crossing to exercise ordinary care and caution to avoid collision with cars standing upon or approaching such crossing and to use ordinary care and caution before going upon such crossing to ascertain whether cars, trains or engines are upon such crossing or approaching in near proximity to the same.”
“15. The court instructs you that it was the duty of the plaintiff at said time and place in approaching and passing over said crossing to exercise ordinary care to avoid being injured. If you believe that ordinary care required the plaintiff to look and listen before entering upen the railroad tracks crossing said intersection and while crossing over the same, and if you further believe that he did not so look and listen and that if he had so looked and listened he could have avoided the injury to himself at said time and place and that in consequence of the fact that he did not so look and listen he was injured, then he cannot recover in this case and you should find the defendant not guilty, unless you further believe from the evidence that the injury was willfully and wantonly inflicted upon the plaintiff.”

It will be noted that instruction No. 11 states generally the duty of persons about to pass over a railroad crossing and that instructions numbered 15 and 17 are identical, except that number 15 concludes with the words, “unless you further believe from the evidence .that the injury was willfully and wantonly inflicted upon the plaintiff,” which are not contained in number 17. In one instruction the court was asked to tell the jury that if they believed that the plaintiff failed to use ordinary care for his own safety then they should find the defendant not guilty, unless they further believed that the defendant was guilty of wilful and wanton conduct. In the other instruction the court was requested to advise the jury to ignore the issue presented by the third count of the declaration and to find the defendant not guilty if they believed the plaintiff was guilty of contributory negligence. We have held, in this opinion, that there was sufficient evidence fairly tending to support the charge of wilful and wanton conduct on the part of the defendant to warrant submission of this issue to the jury. That being true, the court did not err in refusing to give to the. jury the instruction in question.

It is further argued that the judgment of the trial court should be reversed and a new trial granted because of prejudicial and improper arguments made before the jury by counsel for the plaintiff. In their brief counsel for the defendant quote at length, from the record, the arguments objected to. Five or six pages are devoted to this purpose. Less than a page of the argument, however, is set out in the abstract of record. Notwithstanding this failure to comply with the rules of this court, we have examined all of the argument quoted in the brief. A number of remarks made by counsel for the plaintiff should not have been made. We are not, however, inclined to think that they were of such a prejudicial character as to warrant a reversal of the judgment. The reviewing courts of this State have frequently censured attorneys for the making of intemperate and improper arguments to the jury, but have seldom reversed judgments for that reason alone.

It is finally said that the damages assessed by the jury are excessive. The amount allowed was $25,000. At the time of the accident the plaintiff was 43 years of age. As a result of the injury it was necessary to amputate his right arm at the shoulder. He testified that before the accident he weighed from 160 to 165 pounds and was in good health; that at the time of the trial he weighed 119 pounds; that he had practically lost control of his legs; that he constantly suffered severe pains in his back and hips and that he had difficulty in sleeping. Most of the arguments made here on this point were proper to be made to the jury. Much stress is laid upon the fact that the plaintiff only earned approximately $728 per year and that $25,000 will produce an annual income' of $1,500, and leave the principal intact at his death. As a matter of mathematics this is correct. But compensation for damages due to decreased earning power is not the only element to be considered by the jury in determining the amount of damages to be awarded. They were properly instructed as to all of the elements to be considered by them and, while we think the amount of damages assessed is large, we do not feel, in view of the character and extent of the injuries sustained by the plaintiff, that we would be justified in holding it to be excessive.

For the foregoing reasons the judgment of the circuit court of Oook county is affirmed.

Affirmed.

Holdom, P. J., and Wilson, J., concur.


text:
    The People of the State of Illinois, Defendant in Error, v. Sam O’Brien, Plaintiff in Error.
    Gen. No. 32,886.
    Heard in the third division of this court for the first district at the October term, 1928.
    Opinion filed January 30, 1929.
    Louis Greenberg and Frank G. Marshall, for plaintiff in error.
    Robert E. Crowe, State’s Attorney, for defendant in error; Edward E. Wilson, Assistant State’s Attorney, of counsel.
   Mr. Justice Ryner

delivered the opinion of the court.

The defendant was convicted in the county court of Cook county upon an information charging that in the City of Chicago, on a certain date, he “did unlawfully aid and abet a certain person, to-wit, Frank Perkins, not legally qualified to vote at a primary election, in attempting to vote at a primary election, contrary to the form of the statute,” etc. and was sentenced to one year’s imprisonment in the county jail. He has sued out this writ of error and says that the information wholly fails to charge any offense.

On behalf of the State it is contended that the information is sufficient because it is substantially in the language of the statute and reference is made to Ca-hill’s St. ch. 46, If 96; section 84, chaper 46, Smith-Hurd Statutes. The principle of law stated is sound but we cannot agree with the conclusion that the information states in substance the language of the statute. Neither can we agree that the provision of the statute referred to has any application, except whatever aid may be derived from it in construing the statute which does control. The reference is to the Election Act of 1872 relating to elections, as distinguished from primary elections, and, even as to elections, it is not applicable to the City of Chicago. The Act of 1885 governs the conduct of elections in Chicago.

The statute under which the primary election, referred to in the information, was held, is an act of the General Assembly of this State entitled, “An act to provide for the making of nominations by, and the organization of political parties. Approved July 6, 1927.” Section 65 of this act, Cahill’s St. ch. 46, ff460(65), reads as follows:

“(1) Whoever unlawfully votes more than once at any primary or offers to vote after having once voted at such primary, or knowing that he is not a qualified elector at a primary, wilfully votes at such primary, shall, on conviction thereof, be fined in a sum not exceeding one thousand (1,000) dollars, or imprisoned in the county jail not exceeding one (1) year, or both in the discretion of the court.
“(2) Whoever wilfully aids or abets any one not legally qualified to vote at a primary in voting or attempting to vote at such primary, or,
“(3) By unlawful means prevents or attempts to prevent any primary elector from attending or voting at a primary; or,
“(4) Gives or offers to give any valuable thing or bribe to any judge or clerk of a primary, as a consideration of some act to be done or omitted to be done contrary to his official duty in relation to such primary, shall, on conviction thereof, be fined in a sum not exceeding one thousand (1,000) dollars, or imprisoned in the county jail not exceeding one (1) year, or both, in the discretion of the court; any judge or clerk who shall receive, request or demand any bribe or reward, forbidden by this Act shall, on conviction, be liable to the same penalties as prescribed in this Act for giving or offering to give such bribe or reward.”

It will be seen that the information charges the defendant with having “unlawfully” aided and abetted a certain person in an attempt to illegally .vote at a primary election. The statute says that such aiding or abetting constitutes an offense only when it is “wilfully” done. The question then arises whether the omission of the word “wilfully” in the information is fatal.

It has been held that where a word, such as “knowingly,” is used in a statute as part of the description of the offense, the word must be used in any information based upon such statute. People v. Tait, 261 Ill. 197. An information charging the obtaining of property by false pretenses which omits the statutory words, “with intent to cheat and defraud,” is fatally defective. This was held to be so because the words omitted were used in the statute to describe an essen, tial element of the crime. People v. Cohen, 147 Ill. App. 393. In the case of State v. Langston, 45 La. Ann. 1182, it was held that the word “wilfully” has a significance, and where used in the statute as descriptive of the offence denounced, its employment in the indictment is essential. In the case of Peterson v. Pusey, 237 Ill. 204, the Supreme Court of this State held that the word “wilful,” when used in connection with a violation of the law, means that the act constituting the violation was done knowingly and deliberately.

The facts are not before us because there is no bill of exceptions in the record. But to test the significance of the word “wilful” as descriptive of part of the offense, let us assume that defendant was reliably informed that the person whom he aided in the attempt to vote illegally was a duly qualified voter. Can it be said that his act, under such circumstances, was done wilfully or knowingly? We think not. Certainly it cannot be said that he aided the voter in question knowing that he was not qualified to vote if he had reasonable grounds to believe the contrary. The information is fatally defective unless the defect is cured by the use of the word “unlawfully.”

The word “unlawfully” when used in an information or an indictment is a mere legal conclusion of the pleader, unless the word is used in the statute to describe one of the elements of the offense. It has no more efficacy than the concluding words of the pleading that the acts complained of were done contrary to the form of the statute in such case made and provided, and against the peace and dignity of the People of the State of Illinois. If the facts set out in the information do not show that an offense has been committed the word “unlawfully” adds nothing and apprises the defendant of nothing except that in some manner he .has unlawfully done certain acts, not, in themselves, constituting a violation of any law.

In the case of People v. Martin, 314 Ill. 110, the court, in considering the sufficiency of an information under the Prohibition Act, Cahill’s St. ch. 43, said:

“The use of the. word ‘unlawfully’ in connection' with the allegation of possession does not have any effeet, inasmuch as the use of this word represents merely the conclusion of the pleader and does not state any fact from which the inference of unlawfulness would arise.” See also People v. Minto, 318 Ill. 293, and United States v. Horton, 282 Fed. 731.

There are numerous authorities in other jurisdictions to the same effect.

In State v. Concord Railroad, 59 N. H. 85, the court said:

“The word ‘unlawfully,’ which is not used in describing the offence in the indictment, is not found in the statute description of the offence. When the word is not made a part of the statute description of the of-fence, if used in criminal pleading, the word asserts only a conclusion of law; and if the conclusion arises out of the facts set forth, its express averment is unnecessary; if not, its omission leaves the indictment insufficient. If the language of the indictment describes acts in themselves unlawful, it adds nothing to their unlawfulness to say they, were ‘unlawfully’ done. ’ ’

In State v. Hussey, 60 Me. 410, the language of the opinion on this point is:

“Unlawfully doing a thing is not synonymous with wilfully doing it. A man may do many things wilfully, which are not unlawful, and he may do things unlawfully which are not wilfully done. ’ ’

Likewise in State v. Massey, 97 N. C. 465, it was said:

“No offense is charged under the statute before it was amended, because the indictment charges the offense to have been committed subsequent to that time. None is sufficiently charged under the statute as amended, because the offense is not charged to have been done ‘wantonly and wilfully, ’ and these words are not supplied in substance by the words ‘unlawfully and maliciously, ’ which are employed in the indictment. The term ‘unlawfully’ implies that an act is done or not done as the law allows or requires; but the term ‘wantonly’ implies turpitude; that the act done is of wilful, wicked purpose. The term ‘wilfully’ implies that the act is done knowingly, and of stubborn purpose, but not of motive.”

In State v. Robinson, 104 La. 224, the court said: “The words ‘unlawfully’ and ‘feloniously,’ used in this court, were not necessary, and neither takes the place of ‘willfully,’ employed in the statute. Neither has the same meaning and import as ‘willfully’; neither is the equivalent of ‘willfully.’ ”

Counsel for the State finally urge that the sufficiency of the information cannot be questioned here because, in the trial court, the defendant made no motion to quash but went to trial without objection and asked for no bill of particulars. This is not the law. People v. Minto, 318 Ill. 293. There the court said:

“An indictment or information charging a crime is a necessary preliminary to a conviction by the court for that crime. No waiver or consent by defendant to a criminal prosecution can confer jurisdiction or authorize his conviction in the absence of an accusation charging him with a violation of the criminal law. (People v. Pilewski, 295 Ill. 58.) A verdict of guilty is of no more force than a plea of guilty, and neither establishes guilt if the indictment or information charges no criminal offense, but in either case the defendant may question the indictment or information by a motion in arrest of judgment or on writ of error. (Klawanski v. People, 218 Ill. 481; People v. Wallace, 316 id. 120.)”

In the case of People v. Sheldon, 322 Ill. 70, the court expounded the rulé applicable in testing the sufficiency of an information or indictment charging a statutory offense, saying:

“An indictment or information charging an offense defined by statute should be as descriptive of the offense as is the language.of the statute and should allege every substantial element of the offense as defined by the statute. People v. Martin, 314 Ill. 110; Cannady v. People, 17 id. 158; People v. Barnes, 314 id. 140; Sokel v. People, 212 id. 238.”

The information in question, put to this test, falls short of charging the defendant with any offense known to the law.

For the foregoing reasons, the judgment of the county court of Cook county is reversed.

Reversed.

Holdom, P. J., and Wilson, J., concur.