author: Mr. Justice Soanlan

text:
    Steve Ziolkowski, Appellee, v. Continental Casualty Company, Appellant.
    Gen. No. 34,919.

      Opinion filed October 9, 1931.
    Rehearing denied October 21, 1931.
    George G. Bliss, for appellant.
    Peden, Kahn & Murphy, for appellee; John C. Melaniphy and Gerald Ryan, of counsel.
   Mr. Justice Soanlan

delivered the opinion of the court.

This is a suit in assumpsit brought by the plaintiff, Steve Ziolkowski, as beneficiary under an accident insurance policy issued by the defendant, Continental Casualty Company, a corporation, to one Joseph Sarnousld. The case was tried by the court, without a jury, and the issues were found for the plaintiff and damages were assessed in the sum of $2,470. Judgment was entered on the finding and the defendant has appealed.

The declaration, consisting of one count, contained a copy of the contract of insurance. The defendant filed a plea of the general issue and two special pleas, the first special plea alleging “that the injury causing the loss of life of insured resulted from an intentional act of insured or some other person”; and the second special plea alleging “that the injury causing the loss of life/of insured resulted from an intentional act of another person, to-wit, a stab wound, which assault was not committed upon the assured by such other person for the sole purpose of burglary or robbery and which assault was not incurred by insured while engaged in the proper performance of the duties of his occupation and provoked solely thereby,” etc. The plaintiff filed replications to the two special pleas.

The part of the policy upon which the defendant relies for its defense reads as follows: “Part V. Not Covered. This policy does not cover any loss . . . (3) if the injury causing it results from the intentional act of the Insured or of any other person excepting, however, assaults committed upon the Insured for the sole purpose of burglary or robbery and also excepting assaults incurred by the Insured while engaged in the proper performance of the duties of his occupation and provoked solely thereby; . . .”

Upon the trial the following stipulation of facts, signed by the parties, was offered in evidence:

“It is hereby stipulated by and between the parties hereto, . . .

“1. That Joseph Sarnowski was issued a policy of insurance (attached hereto and made a part hereof as Plaintiff’s Exhibit 1), wherein the defendant promised to pay to the beneficiary, the plaintiff herein, (who is a cousin of said assured) the sum of $2,400 for loss of life, as provided in said policy of insurance.

“2. That the said Joseph Sarnowski did, during his lifetime, keep, perform and comply with all the terms, provisions and conditions of said policy of insurance upon his part to be kept and performed by the terms thereof, including the payments of premiums as required by said policy.

“3. That on Sunday, February 23, 1930, at about 11:45 p. m., the insured, Joseph Sarnowski, and one Peter Kulik were walking north on Burley Avenue in Chicago, Illinois, on the east side of the street; that there were three Mexicans ahead of them; that as insured and Kulik were passing these Mexicans, they gave Kulik a shove off the sidewalk; that Kulik was stabbed in the stomach and Sarnowski was stabbed by one of the Mexicans by means of a knife or some sharp instrument on the left side of chest at point of the heart; that he fell to the street, was taken to the South Chicago Hospital, where he died three hours later from shock and hemorrhages resulting from said stab wound of the heart due to external violence inflicted by said knife or sharp instrument; that neither the insured, Sarnowski, nor Kulik knew the Mexicans who attacked them.

“4. That notice of and proofs of death were given the defendant, as provided by said policy of insurance.

‘ ‘ 5. That at about 9 p. m. on the same evening that insured was stabbed there had been an altercation between several Mexicans and white people of Polish extraction in the vicinity of 84th Street and Mackinaw Avenue, which is one block east of Burley Avenue; that Sarnowski and Kulik were of Polish extraction.

“6. That in the event plaintiff is entitled to recover, there is due him the sum of $2,400 with interest from April 23, 1930, at the rate of 5 per cent per annum.

“7. It is further stipulated and agreed that either party may offer additional evidence on the trial of said cause.”

The plaintiff also offered in evidence, without objection, the contract of insurance and the following letter, sent to plaintiff’s attorneys by the defendant company :

‘ ‘ Continental Casualty Company G-eneral Office 910 S. Michigan Ave.
Claim Department Chicago April 25, 1930
In replying refer to No. 1602436
Joseph Sarnouski,
deceased
-27- •
Messrs. Peden, Kahn & Murphy,
Attorneys at Law,
City Hall Square Bldg.,
Chicago, Ill.
G-entlemen:

This Company is in receipt of your letter of the 12th instant, in relation to claim of above name and number in which you advise you represent the beneficiary.

According to all the evidence submitted in the case claim is not within the policy coverage being excluded therefrom by Part Y, and it is our understanding the parties at interest have already been so advised by our agent.

Yours very truly,
R. I. Betty
rib.ek Chief Adjuster. ’ ’

The plaintiff then rested. .The defendant offered in evidence an affidavit of one Peter Kulik, which was part of the proof submitted to the defendant by the plaintiff in support of his claim. The court sustained the plaintiff’s objection to the admission of this affidavit. We will later refer to this offered evidence. The defendant then offered in evidence a certified copy of the death certificate, issued by the coroner of Cook county, in the matter of the death of Joseph Sarnowski. The certificate, save as to a certain portion of the same, was admitted. We will later refer to this ruling. The defendant then rested and no further proof was offered.

The defendant contends that “by filing the replica-, tion to the second plea after the demurrer was overruled, plaintiff admitted the plea to be good at law and raised an issue solely on the facts alleged.” In support of this contention the defendant has made a somewhat strained argument as to the effect of the filing of the replication, by the plaintiff, to the first special plea of the defendant. As to this contention, it is sufficient to say that in view of the manner in which the case was presented to the trial court the contention is without merit. By its letter of April 25, 1930, the defendant rejected the claim of the plaintiff upon the sole ground that the “claim is not within the policy coverage being excluded therefrom by Part V.” At the close of the evidence the trial court stated that it was his understanding that, the defendant was relying upon the provisions of Part V of the policy in defense of the claim, and the defendant not only did not challenge the correctness of this statement but its counsel conceded, by his attitude, that the court was correct in his understanding of the position of the defendant. The point now raised was not made, nor even suggested, during the trial. The agreed facts support the contention of the plaintiff that the case was to be determined by the trial court upon the sole question as to whether or not the claim was excluded by the provisions of Part V. The instant contention is plainly an afterthought, and the defendant will not be allowed to change its position in this court.

The defendant contends that “the court erred in refusing to admit in evidence Defendant’s Exhibit 1 for identification.” Defendant’s exhibit 1 for identification was the affidavit of Peter Kulik, which appears to have been part of the proofs of death submitted to the defendant by the beneficiary. The affidavit reads as follows:

“1602436 Joseph Sarnouski Affidavit of Eye Witness
In relation to death of Joseph Sarnowski
1. What is your name? Peter Kulik Occupation? Truck Driver
2. Were you an actual eye witness to the injury claimed to have been received by Deceased? Yes
4. Where were you at the time? With Joseph Sarnowski
5. What was Deceased doing when injured ? Going home
6. How far were you from him? Side by side
7.. Where did the accident happen? 8401 Burley Ave.
a. How c(id the accident happen ? Going in back of 3 Mexicans and trying to pass them up when they gave me a push off side walk and started trouble by using a knife on me first and then using it on Joseph Sarnowski which I did not see how Joseph got stabbed because I was stabbed first
8. On what date was the injury received? Feb. 23rd 1930, 12 P. M.
a. Who was at fault? The Mexicans
9. What was Deceased’s occupation? Handyman
13. Did Deceased quit work at once? Off duty . . .
14. To what extent, if any, was Deceased under the influence of intoxicants or drugs? No
16. By what Company, Corporation or person are you employed? None
State of Ill. I (Signed) Peter Kulik County of Cook j (Eye Witness sign here)
Address 8456 Buffalo Ave. Chicago Ill.
St. No. City State
Personally came before me Peter Kulik and subscribed and made oath to the foregoing statement. Witness my hand and seal, this 6 day of March, 1930
Frank X. Eydzewski, Jr. (Notarial)
Notary Public ( Seal )”

The defendant contends that “plaintiff, having submitted this proof voluntarily for the purpose of establishing his right to recover under the policy, the exhibit was admissible in evidence, being in the nature of an admission against interest,” and it further contends that the ruling of the court constituted prejudicial error for the reason that Kulik’s answers showed that he and the deceased were going home at the time of the injury and that the deceased was “off duty,” and that therefore the assault was not made while the insured was engaged in the proper performance of his duties and provoked solely thereby; that certain answers of Kulik were important as bearing upon the question as to whether the assault was made for the sole purpose of robbery, and that one of the answers tends to show that the stabbing was an intentional act within the meaning of Part V. The defendant cites the rule laid down in a number of sister states, that proofs of death are to be treated as prima facie evidence of the facts stated therein, being in the nature of admissions; that such statements are not conclusive against the beneficiary and that the latter has the right to contradict or explain the same. The following are a few of the cases cited: Metropolitan Life Ins. Co. v. Dabudka, 232 Mich. 36, 204 N. W. 771; Dickey v. Supreme Tribe of Ben Hur (Mo.), 269 S. W. 633; Rudolph v. John Hancock Mutual Life Ins. Co., 251 N. Y. 208. The plaintiff does not seriously question the fact that certain States have followed the above rule, but he contends that this rule is contrary to the one in this State, and he insists that the affidavit was not admissible under the decision in Knights Templars Indemnity Co. va. Crayton, 209 Ill. 550. The defendant also cites, in support of its contention, Modern Woodmen of America v. Davis, 184 Ill. 236. That case holds squarely that proofs of death are competent evidence for the defendant as evidence in the nature of admissions made by the plaintiff, but that a plaintiff, in the absence of estoppel, has the right to combat the truth of the statements contained in an affidavit which forms part of the proofs of death. In Supreme Tent K. O. M. W. v. Stensland, 206 Ill. 124, 129, the court quotes this rule with approval. In Knights Templars Indemnity Co. v. Crayton, supra, relied upon by the plaintiff, the court held that neither the plaintiff nor the defendant was bound by a certain statement made in the proof of death, as to the cause of the death, when the cause of death was a disputed question in the case, and that each had the right to show the contrary of the statement. That case follows the rule laid down in Modern Woodmen of America v. Davis, supra. That the affidavit of Kulik contains statements material to the defense is not questioned by the plaintiff. In fact, the plaintiff, in his brief, makes the following argument: “In the case at bar, under the foregoing authorities, and the contract of insurance in evidence, the defendant was required to prove, first, that the insured came to his death by the intentional act of another and that if he did so come to his death that the assault committed upon the insured was not for the sole purpose of burglary or robbery and/or that the assault committed on the insured was not while he was engaged in the proper performance of his duties of his occupation and provoked solely thereby. There is no evidence (1) that the assault on the insured was intentional within the meaning of the word as interpreted by the various courts; (2) that the assault was not for the purpose of robbery; (3) that the assault was not made upon insured in the proper performance of his duties or occupation and provoked solely thereby. As to the latter the record is silent as to what the insured’s occupation was; what hours he worked; what kind of work he performed; whether the assault was provoked solely thereby. The lack of proof on this element alone is sufficient to sustain the finding of the Court. ’ ’ The plaintiff thus concedes that certain statements made in the affidavit are relevant and material, if the affidavit is competent evidence, and his sole contention is that the affidavit was not competent evidence against him. Under the authorities, we must hold that the affidavit was competent evidence, and that the action of the court in sustaining the objection to the same constituted prejudicial error. Upon another trial, the plaintiff has a right to contradict or explain the statements in the affidavit.

The defendant contends that “the court erred in excluding part of the death certificate marked Defendant’s Exhibit 2.” The coroner’s certificate of death stated, inter alia:

“I Hereby Certify, That I took charge of the remains of the deceased herein described, held an inquest thereon and from the evidence obtained find that said deceased came to his death on the date stated above and that

The Cause of Death was as follows:

Shock and hemorrhage resulting from a stab wound of the heart due to external violence inflicted in fight with Mexicans at 84th St. and Burley Ave.

Contributory

(Secondary) Manslaughter.”

The court admitted in evidence the entire certificate save the following words, “inflicted in fight with Mexicans at 84th St. and Burley Ave.” The defendant calls attention to certain provisions of the statute relating to the registration of deaths: Ch. 65a, par. 23, sec. 7, Cahill’s 1931 Statutes, provides: “ . .' . The medical certificate shall be made and signed by the legally qualified physician, if any, last in attendance, or by the coroner. . . .” Par. 24, sec. 8, provides: “ . . . The coroner or other proper officer whose duty it is to hold an inquest on the body of any deceased person, and to make the certificate of death required for a burial permit, shall state in his certificate the name of the disease causing death, or if from external causes (1) the means of death; and (2), whether (probably) accidental, suicidal, or homicidal; and shall, in any case, furnish such information as may be required by the Department of Public Health in order to properly classify the death. ’ ’ Par. 36, sec. 20, provides: “The State Board of Health, any local registrar or any county clerk shall, on request, furnish a certified copy of the record of any . . . death . . . Any such copy of a . . . death, when properly certified to by the State Board of Health or the local registrar or the county clerk, shall be prima facie evidence in all courts and places of the facts therein stated. . . .” The defendant argues: The “insured died from a stab wound of the heart, which was necessarily due to external violence. It was the duty of the coroner to find out the cause and maimer of the death of the deceased and whether or not some crime had been committed. The statement of the coroner in the death certificate to the effect that the stab wound was ‘inflicted in a fight’ and that the contributory or secondary cause of death was ‘manslaughter’ was clearly part of the duties of the coroner. The fact that a coroner’s verdict is not admissible in evidence does not answer the point here made. The statement that the deceased was stabbed in a fight was part of the means of death and a basis for the contributory cause of manslaughter, which was required by the statute to be inserted by the coroner in the death certificate. It was a statement of a fact necessarily found by the coroner as part of his duties. It was, therefore, admissible under the statute as prima facie evidence only of the fact that the stab wound of the heart occurred. in a fight.....The legislature clearly has the power to change or qualify the common law rules of evidence and to make a certified copy of a death certificate prima facie evidence in all courts and places of the facts therein stated. The statement that the deceased was stabbed while in a fight was a statement of a fact which was clearly within the province of the coroner to find and related to the means of death and whether the death was accidental or homicidal, which was required to be inserted in the death certificate by the statute.” In support of the instant contention the defendant cites Hamer v. Globe Mut. Life Ins. Co., 243 Ill. App. 109, 116-7, and Guter v. Security Benefit Ass’n, 250 Ill. App. 635. In the first case it appears that the plaintiff objected to the offer of a certified copy of the certificate of death of the insured upon the ground that the defendant did not lay a proper foundation for the introduction of the certificate by showing that it met the statutory requirements as to form of certificate prepared by the board of health of the State of Illinois, and it was held that this objection to the offer was without merit and that therefore the trial court erred in his ruling. Guter v. Security Benefit Ass’n, supra, was decided by this branch of the court. From the opinion we filed therein it does not appear that there was any question raised in the lower court as to the admissibility of the certified copy of the death certificate. It is clear that the question now before us was not passed upon in either of these cases. In Henninger v. Inter-Ocean Casualty Co., 217 Ill. App. 542, it appears that the death certificate was made by a doctor. Part of it was as follows : “The cause of death was as follows: Septicemia (started in Bt. Leg from abrasion of skin) (made by garter buckle July 12).” Upon objection the words “made by garter buckle July 12” were not admitted in evidence. The court held that while the statute provided that such a certificate shall be prima facie evidence of the facts therein stated, it does not make such a certificate prima facie evidence of mere conclusions based upon hearsay; that “it will be readily perceived that such a construction of the statute would lead to most dangerous and hazardous consequences.” Par. 24, sec. 8, supra, provides that the coroner “shall state in his certificate the name of the disease causing death, or if from external causes (1) the means of death; and (2), whether (probably) accidental, suicidal, or homicidal.” From the wording of this provision it is evident that the legislature recognized the fact that par. 36, sec. 20, which provides that a certified copy of a certificate of death “shall be prima facie evidence in all courts and places of the facts therein stated,” standing alone, would work great injustices to litigants, and therefore the second paragraph of par. 24, sec. 8, was passed. This provision states in clear and certain language what the certificate shall contain. As applied to the instant case, it called upon the coroner to state that the cause of death was “shock and hemorrhage resulting from a stab wound of the heart due to external violence, ’ and that it was a homicidal case, or probably one. It was not intended, in our judgment, that the certificate of death should classify the nature of the homicide or contain a statement as to the facts surrounding the homicide. ' The certificate, it will be noted, states that the act of the Mexican constituted “manslaughter,” while the statute calls upon the coroner to merely state that it was probably a ‘ ‘ homicidal ’ ’ case. ‘ ‘ Homicide is a comprehensive word which means any killing of a human being, whether by his own act or by the act of another. It does not necessarily import a crime, but" includes also those cases in which the law justifies or excuses the taking of human life.” (21 Am. & Eng*. Enc. of Law, p. 91.) Under our statute, “murder is the unlawful killing of a human beiiig, in the peace of/the People, with malice aforethought, either expressed or implied.” Manslaughter “is the unlawful killing of a human being without malice, express or implied, and without any mixture of deliberation whatever. It must be voluntary, upon a sudden heat of passion caused by a provocation apparently sufficient to make the passion irresistible, or involuntary in the commission of an unlawful act, or a lawful act without due caution or circumspection.” In the instant case, the coroner, instead of merely stating that it was a homicidal case, or probably one, saw fit to state, in effect, that the killing’ was unlawful and of the grade of manslaughter. In Spiegel’s House Furnishing Co. v. Industrial, Commission, 288 Ill. 422, the court overruled many former decisions it had made and held “that it should be no longer the policy of this State and the holding of this court that a coroner’s verdict or inquest should be admissible as evidence in civil suits for the purpose of establishing personal liability against any individual in cases where the death of any person is charged or to establish a defense to such a suit, or for the purpose of establishing other issues between private litigants, ’ ’ and the court expressly stated that one of the reasons that caused it to overrule its former decisions was that “a review of the above cases clearly discloses that many of the cases, if not all of them, have been largely controlled by the admission in evidence of the verdicts of the coroner’s jury, and in many of them such verdicts have furnished the sole evidence to establish liability. As a consequence of such practice there has resulted in this State a race and scramble by litigants to secure a favorable coroner’s verdict that would influence or control in case a civil suit should be brought to establish a claim by reason of death. It is not intimated here that plaintiffs prosecuting such suits have offended more in this particular practice than defendants who are sued in such suits, and it is believed that the facts would disclose that both are alike guilty. It cannot be questioned that as a result of such practice the coroner’s verdict in many cases has been, and will continue to be, a mere trap or device for the purpose of catching the unwary in such suits and that public interests intended to be served by coroner’s inquests may not be so well guarded as they otherwise would be.” In the instant case the certificate of the coroner contains statements he was not called upon to make, under the statute, and which are harmful to the plaintiff and helpful to the defendant. Now that a coroner’s verdict is no longer admissible in evidence in a case like the present one it is the duty of the courts to guard the rights of litigants when certificates of death are offered in evidence, lest they become “a mere trap or device for the purpose of catching the unwary,” and when statements not authorized by the act are incorporated in a certificate, they must be treated as surplusage and excluded. We hold that the trial court did not err in excluding the words in question. Upon a new trial the word “manslaughter” should also be excluded.

What we have said as to what should be stated in a certificate of death, issued under the statute, does not, of course, apply to a verdict in the case of a coroner’s inquest. Our statute requires a coroner, as soon as he knows or is informed that a dead body is lying within his county, supposed to have come to his or her death by violence, casualty or any undue means, shall repair to the place where the dead body is, take charge of the same, and forthwith summon a jury and swear them to diligently make the inquiries required by the statute and to deliver to him a true inquest thereof. The jurors are required to inquire how, in what manner and by whom or what the body came to its death, and ascertain all the facts of and concerning the same, together with all material circumstances in anywise related to or connected with said death, and to make up and sign a verdict or true inquest, and the coroner is obliged to cause the testimony of the witnesses to be written out and signed by the witnesses, and the coroner has the further power to commit persons implicated in the killing. A coroner’s verdict is often necessarily broad. On the other hand, a certificate of death is merely the instrument which the undertaker must obtain from the attending physician, or the coroner in case of an inquest, and which he must file with the local or sub-registrar of the district in which the death occurred, in order to obtain a permit to bury or remove the body.

The defendant further contends that the admitted evidence clearly establishes that the act of the Mexican was intentional, and that Part V of the contract of insurance is not ambiguous and does not cover loss of life if the injury causing it results from the intentional act of some other person, and that therefore the finding should have been for the defendant. In arriving at its conclusion as to the effect of the evidence, the defendant indulges in presumptions and inferences not warranted by the evidence and assumes that all of the alleged facts stated in the certificate of death were competent evidence, and also assumes that the plaintiff, by his replication to defendant’s second special plea, admitted that the stabbing was an intentional act .within the meaning of Part V. We have referred to this question of pleading in disposing of the defendant’s first contention. We cannot agree with the contention that the trial court was bound to find for the defendant under the undisputed facts of the case, but as this case may be tried again we purposely refrain from commenting upon the facts and circumstances in the case and the law bearing upon the same.

The defendant has raised several other contentions but we do not deem it necessary to refer to them.

For the error of the trial court in refusing to admit the affidavit of Peter Kulik, the judgment of the superior court of Cook county is reversed. and the causé is remanded. ;

Reversed and remanded.

Q-ridley, P. J., and Keener, J., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice O’Connor

license: Public Domain

text:
    City of Chicago, Appellee, v. Leo Harrington, Appellant.
    Gen. No. 34,612.

      Opinion filed October 19, 1931.
    Slottow & Levitón, for appellant; Marvin J. Welfeld and David Paley," of counsel.
    Francis X. Busch, Corporation Counsel, and Michael L. Rosinia, Prosecuting Attorney, for appellee ; Carl J. Appel, Assistant Corporation Counsel, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal the defendant seeks to reverse a judgment of the municipal court of Chicago adjudging him guilty of the violation of an ordinance of the City of Chicago, and condemning him to pay a fine of $200, and for failure to pay the fine it was ordered that he be confined in the house of correction until the whole of the fine and costs should have been worked out by him at the rate of $2 a day.

The record discloses that on August 7, 1930, the defendant was placed under arrest and taken before the municipal court of Chicago. A complaint was thereupon prepared and presented to a judge of the court, who entered an order permitting it to be filed. The complaint charged that the defendant violated section 2655 of the Municipal.Code of 1922 of Chicago, in that he “did allow and permit certain persons on his premises to become loud and boisterous to the annoyance of the guests of the Edgewater Beach Apartments and to the annoyance of this affiant.” The order allowing the filing of the complaint recited that the defendant had been arrested without warrant and “The said defendant being duly advised by the Court as to his right to a trial by jury in this cause elects to waive a trial by jury, and this cause is, by agreement in open court between the parties hereto, submitted to the court for trial without a jury.” The court then heard the witnesses produced on behalf of the plaintiff City, and the cause was then continued and set for trial August 11, 1930, to permit defendant to have his attorney present and produce his evidence, and leave was given to plaintiff to amend the complaint. August 11, when the case was called for trial plaintiff filed an amended complaint in which it was alleged that on August 7, defendant “did then and there aid, assist or countenance an improper noise and disturbance and diversion tending to a breach of the peace within the limits of said City of Chicago by means of the operation of a certain ‘Tom Thumb’ or ‘Pee Wee’ Gfolf Course at unreasonable hours of the night in an unlawful manner at the city aforesaid, ’ ’ in violation of section 2655 of the Municipal Code. At that time defendant appeared in person and was represented by counsel and produced witnesses who testified in his behalf. Thereupon, the court found the defendant guilty and imposed the fine as above stated.

The defendant contends that the court erred in refusing his request for a jury trial and therefore the judgment should be reversed. Under the provisions of'section 30 of the Municipal Court Act, Cahill’s 1931 Statutes, page 958, ch. 37, if 418, the court was without power to hear the case without a jury unless the defendant waived his right to a jury trial. The case was quasi-criminal and therefore one of the 5th class. Par. 5, sec. 2, Municipal Court Act, Cahill’s St. ch. 37, H 390; City of Chicago v. Dickson, 221 Ill. App. 255. Paragraph 5 provides: “All quasi criminal cases” shall be designated as cases of the 5th class, and section 30 provides that ‘ ‘ Every suit at law in the municipal court other than ... a case of the 5th class . . . shall be tried by the court without a jury unless the plaintiff, at the time he commences his suit, or the defendant, at the time he enters his appearance, shall file with the clerk a demand in writing for a trial by jury.” This section means that cases of the 5th class are to be tried by a jury unless the defendant waives his right to such trial. Counsel for defendant say in their brief: “In the instant case defendant never waived trial by jury and therefore it was error for the Court to hear the case without a jury.” The, difficulty with this statement.is that it is contrary to the record, which discloses that when the defendant was brought into court arid leave was given to file the complaint against him, the defendant waived his right to a trial by jury, as appears from what we have heretofore quoted from the order of court. Moreover, the record further shows that four days later, August 11, to which time the case was continued, the case came on for trial without a jury, that the court found the defendant guilty of violating the ordinance and “it is considered by the Court that the plaintiff have judgment on the finding of the Court entered herein, it appearing to the Court that , said defendant has duly and regularly waived a jury trial in this cause.”

In the statement of the case, or bill of exceptions, it is recited that when the trial of the cause was resumed on August 11, the defendant asked for a trial by jury, which request was denied for the reason, as stated by the court, that the case had been disposed of except for the hearing of the defendant’s witnesses. The record imports verity and cannot be successfully" contradicted by statements in the brief. The defendant having waived his right to a jury trial cannot now be heard to complain that the court tried the case without a jury.

The defendant further contends that there is no evidence to warrant the finding that he was guilty of violating the ordinance; that the evidence fails to show that he was connected in any way with the golf course, and that all the evidence shows there was no misconduct on defendant’s part. The evidence in the record is in narrative form. It states that plaintiff produced four witnesses, all of whom testified that they lived in the Edgewater Beach Apartments, “and that they heard loud talking, saw parties in evening clothes hilarious apparently partially intoxicated after midnight at various times and as late as 4 a. m. in the morning and that a roller was used on the gravel of the miniature course at night, which roller made much noise, often as late as 4 a. m.. Witnesses testified that this took place every night over a period of weeks, that the defendant was present and permitted it, that .the golf course was a boisterous, rollicking gathering place for tipsy parties who frequented it in great numbers after midnight and that the noise prevented residents from sleeping. None of said ivitnesses testified that the defendant himself did the loud talking or the rolling.”

Two witnesses for the defendant then testified that they worked for M. B. Mervis, the owner of the golf course, and that he and his brother were the ones who operated the roller; that the patrons of the course were quiet and orderly and were not loud or boisterous; that the defendant was employed by-Mervis as manager and cashier of the golf course and that he always conducted himself in an orderly manner. The bill of exceptions then recites that at the conclusion of the testimony of these two witnesses the court stated no other testimony would be heard on the part of the plaintiff and asked if the two witnesses produced by the defendant were personal attendants of the golf course, and said he would hear argument of counsel which must be confined to the weight of the evidence only. This is all the evidence in the record.

The undisputed evidence is that the defendant was employed by the owner of the golf course as “manager and cashier.” There is no evidence as to what the duties of the defendant were. Whether he was authorized by the owner of the course to expel those patrons who were conducting themselves improperly, it is impossible to say under the evidence in the record. Furthermore, when the case was first called on August 7, the defendant was without counsel, and he requested the court that the matter be continued until he could obtain an attorney and his .witnesses. The court imposed a fine of $200, and for failure to pay it was ordered that the defendant be confined in the house of correction until the fine was paid or worked out at the rate of $2 a day. And when, at the close of plaintiff’s case the cause was continued so that the defendant might obtain his counsel and witnesses, the court stated that the only witnesses he would hear were those who were employed by the owner of the golf course or who were eyewitnesses to the specific acts testified to by the plaintiff’s witness. We think the defendant should not have been so limited.

The sentence imposed was severe. The defendant was convicted of the violation of a city ordinance, and unless he were able to pay $200 he would be confined at labor in the house of correction for 100 days.

In view of the unsatisfactory condition of the record as above stated, we think there should be a retrial where all of the facts may be developed.

The judgment of the municipal court of Chicago is reversed and the cause remanded.

Reversed and remanded.

McSurely and Hatchett, JJ., concur.


text:
    Frank Deloney, Appellee, v. Dependable Accident & Health Insurance Company, Appellant.
    Gen. No. 35,131.
    Opinion filed October 19, 1931.
    McKinney, Lynde & G-rear, for appellant; A. A. McKinley and O. W. Barnes, of counsel.
    Clayton & McCoy, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action on an accident and health insurance policy issued by the defendant, claiming $375 was due him under the policy. The defendant denied liability on the ground that the policy was not in effect at the time plaintiff was injured because of plaintiff’s failure to pay the monthly premium, and further that plaintiff had failed to furnish defendant with notice of the injury and make proof of loss as provided in the policy. There was a trial before the court without a jury and a finding and judgment in plaintiff’s favor for the amount of his claim. The defendant appeals.

The policy, which is not dated, on which plaintiff predicates his suit, recites the payment of $5 to the defendant by plaintiff and states that plaintiff is insured from September 4, 1929, until October 1, 1929, and that the policy may continue “for one or more consecutive periods of one month each by the payment of Two and No/100 Dollars for each period of one month, and the payment of all subsequent premiums required under this policy, such payment to be made at or before noon, Standard Time, of the day the preceding period expires.” The policy contains the ‘ ‘ Standard Provisions ’ ’ required by the statute of this State, sec. 3, chap. 73, Cahill’s 1931 Stats., Ü 469, paragraph 3 of these provisions is as follows: “If default be made in the payment of the agreed premium for this policy, the subsequent acceptance of the premium by the insurer or by any of its duly authorized agents shall reinstate the policy, but only to cover accidental injury thereafter sustained and such sickness as may begin more than ten days after the date of such acceptance.” Paragraph 4 provides that the assured in case of injury must give the company written notice of the injury on which he bases his claim within 20 days after the date of the accident causing the injury, or within 10 days after the commencement of disability from such sickness. Paragraph 7.requires the assured, in cáse he makes a claim, to furnish the company with affirmátivé .'proofs of loss within 90 'days after the termination of the period for which the company is liable; and by section 6 of the provisions the company, upon receipt of a notice of the injury of an assured, will furnish the claimant such forms as are usually furnished for the filing of proofs of loss, and that if such forms are not furnished by the company within 15 days after the receipt of notice, claimant shall be deemed to have complied with the requirements of the policy as to proof of loss.

On the trial the case turned on the question whether plaintiff had failed to pay the premiums as the policy provided, by reason whereof the policy was not in effect on March 6, 1930, the day plaintiff was injured.

The court expressly found that plaintiff had paid all the premiums required by the policy and that it was in force and effect on the day plaintiff was injured. We think the court finding was warranted by the evidence, and it is certain that we would not he warranted in setting aside the finding on the ground that it was against the manifest weight of the evidence.

There is no dispute as to the amount of money plaintiff paid defendant, and there is little dispute as to the dates on which payments were made, but the explanation made by defendant’s witnesses, and especially by the manager of the company, is in some respects confusing, uncertain and contradictory.

Defendant issued to plaintiff an.“Official Premium Receipt” on which defendant’s agent noted the several dates the premiums were paid by plaintiff. They are: September 13, $3; October 2, $3; November 1, $3; December 4, $3; February 4, $3; February 27, $3; March 10, $3, and the policy recites the payment of $5. Defendant, by witnesses, attempted to explain these payments, as it had a right to do, because a receipt is always explainable; but the explanation is unsatisfactory. Some of the testimony is to the effect that the $5 paid, as mentioned in the policy, went to the agent of the company who procured the insurance. Other testimony is to the effect that the $3 noted on the official premium receipt card on September 13 was a part of the $5. Obviously, it was immaterial to the plaintiff how the money was divided between the company and its agent. As stated, in view of the unsatisfactory testimony given by defendant’s witnesses, we are not authorized under the law to disturb the finding of the court. Moreover, there is another reason why the judgment cannot be disturbed — because in any view of the evidence we hold that the policy was in full force and effect on March 6, the date on which plaintiff was injured. Paragraph 3 of the Standard Provision above quoted provides that if there be a default in the payment of the premium, the subsequent payment of the premium “shall reinstate the policy but only to cover accidental injury thereafter sustained.” The policy provides for a monthly payment of $2, and it being undisputed that plaintiff paid the defendant $3 on February 27, this payment reinstated the policy for a period of one calendar month thereafter, or until March 27, and not, as defendant contends, that that payment merely paid for the balance of the calendar month of February. If that were the proper construction of the policy, then plaintiff would be paying $3 for one day’s insurance because February has 28 days. There is no provision in the policy that when a payment of the premium is made after the policy has lapsed after the first of the calendar month, that the premium is in payment of the balance of that calendar month.

There is no merit in the defendant’s contention that the judgment is wrong because plaintiff failed to give it notice of the injury and to make proof of loss. The evidence shows that shortly after the accident defendant was notified of the injury, and that it did not give plaintiff the blanks upon which he was to make proof of loss, as the policy provided, which provision we have above quoted. And this, for the reason as testified to by a witness for the defendant, that defendant denied liability because of plaintiff’s failure to pay the premium, the policy was not in effect on March 6. The defendant having placed its refusal to pay on that ground, and having failed to give plaintiff the blanks upon which to make his proof of loss, will not now be permitted to say that no recovery can be had because of the failure to make such proofs.

Although it is not important here, we might say that the evidence shows that the payments of $3 above mentioned were in payment of the $2 premium on the policy in question and $1 on another policy not involved here.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

McStjrely and Matchett, JJ., concur.


text:
    D. D. Davis, Appellee, v. Harry M. Englestein et al., Appellants.
    Gen. No. 35,230.

      Opinion filed October 19, 1931.
    Samuels, Lawton & Wittelle, for appellants; Samuel T. Lawton, of counsel.
    Newby, McDonald & Burditt, for appellee; Charles A. McDonald and Geo. M. Burditt, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

July 25,1929, plaintiff brought an action of assumpsit against the defendants to recover $3,621.25, $64.10 of which was claimed to be due for services performed and the balance for damages claimed to have been sustained by plaintiff by reason of a breach of his contract of employment, he having been wrongfully discharged by defendants. The defendants admitted that they owed plaintiff $64.10 for services performed by him but denied that they were guilty of any breach of contract and that they wrongfully discharged plaintiff. There was a jury trial and- a verdict and judgment for plaintiff for the amount of his claim, and the defendants appeal.

The record discloses that defendants were engaged in a number of business enterprises in Chicago and on February 29, 1928, they orally employed plaintiff at a salary of $5,000 per year; that plaintiff began his duties on that day and continued until the 13th of June, 1929, when he was discharged.

Plaintiff’s position is that his employment was for a year at a salary of $5,000; that at the end of the year and nothing having been said, and having continued in his employment, he was under the law, employed for another year at the same salary; that on June 13, he was discharged without cause and therefore, he was damaged to the extent of the salary he would have received had he not been wrongfully discharged, since he was unable to find any other employment during the remainder of the year.

Defendants ’ position is that the employment was not for a year but at will at an annual salary of $5,000; that at the time of the hiring it was orally agreed that plaintiff would be employed at an annual salary of $5,000 and that plaintiff could begin his work and continue for two or three months to see whether the work was satisfactory to both parties. Defendants take the further position that they discharged plaintiff for good cause — that he had been annoying the girls employed by the defendants and for this reason he was discharged. Plaintiff denied that he had annoyed the girl employees and further testified that the defendant who discharged him stated that he did so to cut down expenses.

Defendants contend that the verdict of the jury, to the effect that the hiring of plaintiff was for a year and that he was wrongfully discharged, is against the manifest weight of the evidence and they go further and say that there is no evidence of a hiring for a year. We think neither of these contentions can be sustained. The evidence shows that the parties had been negotiating for about three weeks before plaintiff was employed. Plaintiff testified that when asked by one of the defendants what salary he expected, he replied $6,500 but that on account of the unusual opportunities the position seemed to offer, he would be willing to start at $6,000. He further testified, “He asked me if that was my lowest figure. I told him it was and that he could rest assured I would not come along at the end of the year and try to hold him up for a large increase; that I had never found it necessary to ask for a salary advance, always feeling that my work would speak for itself ’ ’; that at a later conversation between the parties the question of salary was again brought up when one of the defendants stated they could not afford to offer more than $5,000 a year and that thereupon he agreed to accept that salary and defendants then asked for his references and that after the references were looked into by the defendants, plaintiff was employed. During his employment he was paid weekly at the rate of $5,000 per year.

One of the defendants testified and denied that plaintiff had said anything about not asking for an increase at the end of a year; that plaintiff did not ask for a salary of $6,000 a year but wanted $5,500 per year; that nothing was said as to the term except that they would try out the employment for two or three months and see how it worked.

Whether the hiring of a person is for a specific or for an indefinite period has been the subject of much consideration and diversity of opinion by the courts, some holding that the duration of a contract of hiring which fixes the compensation at a certain amount per day, week, month or year but which fixes no specific term, is a hiring at will, while other courts reach the opposite conclusion. See note, Warden v. Hinds, 25 L. R. A. (N. S.) 529. Obviously no set form of words or course of conduct is required to make the employment at will or for a specific period of time but each case must be determined on its own facts. All of the attendant conditions surrounding the agreement, as well as the terms of the contract itself, when the contract is not clear, the course of dealing and other acts, must be taken into consideration in determining the question whether the employment is at will or for a definite term. Maynard v. Royal Worcester Corset Co., 200 Mass. 1. In that case the court, after recognizing the diversity of opinion in the courts of different jurisdictions, said (p. 5): “Without reviewing the cases or analyzing the principles to determine which is the sounder view, it is enough to say that the use of the sum of money equivalent to a year’s pay, in describing the amount which the plaintiff was to receive, was proper for consideration in connection with other incidents. The length of the term of service reasonably inferable as the understanding of the parties, from their words, course of dealing and other acts, was a fact to be determined upon all the evidence.” So, in the instant case, the testimony of the plaintiff and one of the defendants as to the terms of the oral contract of hiring, as well as the conduct of the parties and other acts, were proper for the consideration by the jury in determining whether the hiring was for a specific or for an indefinite period of time. We hold that the question was one of fact for the jury and not a question of law to be determined by the court because we are of the opinion that all reasonable minds would not reach the conclusion that the period of hiring was definite or indefinite. The jury were specifically instructed that before they could find for the plaintiff they must find, from a preponderance of the evidence, that plaintiff was employed for a definite period of one year at a fixed salary of $5,000. This instruction is conceded by the defendants to be correct.. And the jury by their verdict having found for the plaintiff, we are unable to say that the finding is against the manifest weight of the evidence.

The defendants further contend that even if plaintiff was employed for the period of a year, he was rightfully discharged because of his conduct towards the women employed by the defendants. Five of the girls employed by the defendants testified that, covering a period of a few weeks after plaintiff began his employment until the day he .was discharged, he annoyed them with undue familiarities, and that defendants were informed of his conduct. Each of the girls went into considerable detail on this question. Plaintiff denied the accusations in toto. What view the jury took on this question, we are unable to determine, because it might be that although they believed the testimony of the five girls, yet they might also have been of the opinion that the discharge was not for the reason stated by the defendants but because the defendants wished to cut down expenses as testified to by the plaintiff. The testimony of plaintiff in this respect, was denied by one of the defendants and others, so that the question as to the reason for plaintiff’s discharge was for the jury. And upon a careful consideration of all of the evidence in the record, we are clearly of the opinion that we would not be warranted in disturbing the verdict of the jury on this question.

The defendants further contend that the court erred in submitting but one form of verdict to the jury. The form of the verdict given to the jury at the conclusion of the case was: “We, the jury, find the issues for the plaintiff and assess the plaintiff’s damages at the sum of . . . Dollars and . . . Cents.” And it is contended, as we understand the argument, that a form of verdict should have been given for the jury to return in case they found the issues for the defendants. It was admitted in the pleadings and on the trial, that in any view of the case, the defendants owed plaintiff $64.10 for services he had performed prior to his discharge, so that in no event could a verdict have been returned except one in which the jury fixed the amount plaintiff was entitled to recover, viz., $64.10, or this sum plus the damages plaintiff sustained in case he had been employed for a year and was wrongfully discharged. In support of their contention, the defendants argue that the court instructed the jury that in case they found for the plaintiff, he would be entitled to damages “in the amount of the differénce, if any, between the sum he was entitled to under his contract for the year, and such sums as he was paid by the defendants, less such sum or sums as he earned or might have earned by the exercise of reasonable diligence at the same or similar employment during the balance of the year.” And it is argued that by the form of verdict submitted to the jury, there was no way they could return a verdict for defendants and that the rule of damages laid down in the instructions told the jury in effect that the plaintiff was entitled to recover $64.10, plus the damages as mentioned in the instruction quoted, in case they found plaintiff was hired for a year and dismissed without cause. We think the jury were not at all misled by the form of the verdict submitted to them. At the close of the instructions, there was a colloquy between the court and counsel as to whether there should be one or two forms of verdict submitted but it was not suggested that any form should be submitted whereby the jury should find the issues for the defendants. Defendants’ counsel specifically stated that defendants admitted an indebtedness of $64.10 and suggested that the court submit, a verdict in the following words: “We find the issues for the plaintiff and assess the damages at $64.10.” We think the question was simple and easily understandable by the jury who are presumed to have the qualifications specified by statute. They knew that the defendants were admitting an indebtedness of $64.10 in any event and they further knew by the instructions of the court, that this would be the amount of their verdict unless the jury believed from a preponderance of the evidence plaintiff was hired originally for one year and was wrongfully discharged.

The judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

McSurely and Hatchett, JJ., concur.


author: Mr. Presiding Justice O’Connor HcSurely, J.,

text:
    Leonard F. Sbertoli, Appellant, v. John Clark, Appellee.
    Gen. No. 35,241.
    McSurely, J., dissenting.
    Opinion filed October 19, 1931.
    Rudolph & Arthur E. Frankenstein, for appellant; Rudolph Frankenstein, of counsel.
    Blanksten, Freeman & Freeman, for appellee; Harold S. Lansing, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action in the circuit court of Cook county to recover damages claimed to have been sustained by him on account of a malicious prosecution' instigated by the defendant. Defendant, after being served with process, entered his special and limited appearance for the sole and only purpose of contesting the jurisdiction of the court. He filed a plea in abatement in which he alleged that he was a resident of 'Franklin county, Illinois, and that he was in Cook county at the time service was sought to be made upon him by the sheriff of Cook county for the sole and only purpose of testifying in a civil suit then pending in the municipal court of Chicago, in which ease he was plaintiff. Plaintiff filed a replication to this plea in which it was averred that the defendant was properly served and plaintiff tendered issue. The question raised by the plea and replication was submitted to the court for trial, and after hearing the evidence the court quashed the service and in effect dismissed the suit, and plaintiff appeals.

Plaintiff contends that such plea is not available to the defendant because under the law, a plea in abatement must be filed at the earliest opportunity and the defendant did not file his plea in apt time because when he filed his special appearance, he demanded a trial by jury and later made another special demand for a jury trial; that he filed a motion to quash the service and writ which was stricken from the record, and he was then given leave to file his plea in abatement which he then filed. We think it clear that plaintiff is in no position to urge this contention because, after defendant filed his plea in abatement, plaintiff replied tendering issue, which raised questions of fact and a trial was had on this issue by the court without objection.

The question, therefore, for determination is: Under the undisputed facts disclosed, was the service of the summons sufficient for the court to obtain jurisdiction of the defendant? In most of the states of the union, and in the federal courts, where the question of service of process has arisen, where the facts were in substance similar to the facts in the case before us, it is held such service is bad and insufficient but the rule in Illinois is contrary to such holding. McNab v. Bennett, 66 Ill. 157; Greer v. Young, 120 Ill. 184; Cassem v. Galvin, 158 Ill. 30; Willard v. Zehr, 215 Ill. 148; Lewis v. Schwinn, 71 Ill. App. 265; Brya v. Thomas, 186 Ill. App. 281. There are, however, three cases decided in the Appellate Courts of this State which hold contrary to the cases just cited. They are: Greer v. Young, 17 Ill. App. 106; Gregg v. Sumner, 21 Ill. App. 110; and Beatty v. Monahan, 240 Ill. App. 240. The opinion in the case of Greer v. Young, was filed by the Appellate Court of the first district, October 22, 1885, and in Gregg v. Sumner, the opinion was filed by the Appellate Court of the third district, August 26,1886, and one of the authorities relied upon in the Gregg case was the opinion rendered in the Greer - case. After these two opinions were handed down, the Supreme Court on March 22, 1887, reversed the Appellate Court of the first district in the Greer case (Greer v. Young, 120 Ill. 184). The opinion in Beatty'v. Monahan, supra, rendered by the Appellate Court of the second district, seeks to distinguish the McNab, Gassem, Greer and Willard cases, supra, on the facts, but we think the distinction there sought to be made is not of controlling importance.

Paragraph 6, ch. 110, Cahill’s 1931 Statutes, so far as it is pertinent here, in regard to the service of process provides: “It shall not be lawful for any plaintiff to sue any defendant out of the county where the latter resides or may be found. ’ ’ And in McNab v. Bennett (66 Ill. 157, supra), it was held that if a defendant voluntarily leaves his residence in one county and goes to another county, or if he is seized when properly chargeable with a crime and taken to another county, he may be said to be found there within the meaning of the statute which we have above quoted, but that it would be a perversion of the object of the law to permit the arrest of a person upon false and fraudulent pretenses and taking him from the county in which he resides to another for the sole purpose of having him served with process in a civil' suit.

In Greer v. Young, 120 Ill. 184, suit was brought in. the superior court of Cook county. The summons was served on the defendant by the sheriff of Cook county. The defendant filed a special appearance and a motion to quash the summons alleging that he was a nonresident of Illinois, and at the time he was served he was in Cook county for the purpose of attending legal proceedings and for no other purpose. The motion was supported by defendant’s affidavit in which he set up that both plaintiff and defendant were residents of Missouri and that plaintiff had brought suit against the defendant in that State for the identical cause of action and that the same was still pending and that in defending the suit pending in the Missouri court, it was necessary to take depositions in Chicago and that defendant came to Chicago for that purpose only, and while engaged in that work, he was served with process by the sheriff of Cook county. The court quashed the service, dismissed the suit, and its judgment was affirmed in the Appellate Court. (Greer v. Young, 17 Ill. App. 106, supra.) The Supreme Court reversed the judgment of both courts. The court there said: (p. 187-188) “The most important question in the case, is whether the circumstances shown, even if properly pleaded in due time, warranted the court in setting aside the service of the process and dismissing the suit.' There is clearly no ground for the claim that the plaintiff or his counsel had any agency in inducing the defendant to leave Missouri and go to Chicago, for the purpose of having process served on him in the latter place, — in other words, it is not claimed, nor is there any ground for the claim, that service of process upon the defendant was obtained by any artifice, trick or fraud, on the part of the plaintiff, his counsel, or any one else acting in'his interest. The question then arises, can one who voluntarily leaves his own State, and comes to this, for the purpose of taking depositions before a notary, be lawfully served, by reading, with civil process, while here on such business'? . . . The right of the plaintiff, then, to sue the defendant here, was the same as that of any one else having a claim against him. The ruling of the court, therefore, must be rested entirely upon the privilege or immunity which the common law has, from a very early period, extended to parties and witnesses in a lawsuit while attending court, including going and coming. This rule is found in all the text books, and, in most of the cases we have examined, is expressly limited to cases of arrest on civil process. 1 Tidd, (1st Am. ed.) 174; 3 Blackstone, side page 289; 1 Greenleaf on Evidence, secs. 316, 317; 2 Bouvier’s Law Die. 284.

“The rule as laid down in the above works, is fully sustained by an almost unbroken current of authority, . . .

“While, as we have just seen, the exemption, by the general current of authority, applies only to arrests, yet in some of the States, notably New York, it has been extended to cases of service by summons, ... No sufficient reason is perceived for departing from the general current of authority on this subject, merely because some two or three of the States have, through perhaps a spirit of comity, more than anything else, seen proper to do so. The mere service of a summons upon a nonresident, when in another State for the purpose of taking depositions to be used in an action to which he is a party in his own State, imposes no greater hardship upon him than to be served with process out of his own State when attending to any other kind of business. In either case, he is usually afforded ample time to prepare his defense, if he has any.”

In the Cassem case, 158 Ill. 30, it was held that the attendance of a party acting as his own solicitor in taking depositions in a county other than his residence will not exempt him from service of process in such county where his presence is not induced by fraud, artifice or trick. In that case both parties were residents of Kane county, Illinois, and a chancery suit was there pending. One of the parties to that case went to LaSalle county to take depositions in that case and while in that county was served with process. The court held the service was good, saying (p. 33): “Appellant contends that under the facts stated in his plea of abatement he was not legally or lawfully found in the county of LaSalle, and that such service, and the bringing of suit in that county, violated his privilege as a suitor, where he was entitled to immunity from such service of process. Notwithstanding the authorities in some States support the doctrine that a party, under the state of facts set forth in this plea, is exempt from service of civil process, the rule is different in this State. (Italics ours.) It does not appear from this record that the presence of appellant in a foreign county was induced by any fraud, artifice or trick on the part of appellee or any one acting for bim. He was present in a county foreign to the one in which he resided, ... to take depositions before a notary public in a case in which he was interested, and the fact that he was served" with process while thus engaged imposed no greater hardship or difficulty in making a proper defense in his case than if he were served while there giving attention to any other business. The facts stated in this plea come clearly within the rule laid down in Greer v. Young, 120 Ill. 184, . . . and we see no good reason to depart from that rule. ’ ’

It will thus be seen that although the court recognizes the rule was different in other States, it adhered to the rule laid down in Greer v. Young, 120 Ill. 184. And we think the fact that in the Gassem case plaintiff was taking depositions before a notary public and not appearing in the trial of a case in court, is not sufficient to hold the rule inapplicable to the case at bar.

In the Willard case (215 Ill. 148), a resident of Missouri was brought into Tazewell county of this State under arrest on a criminal charge and a plea in abatement filed in that case was held bad because there was no allegation in the plea that the party was not guilty of the criminal charge made against him. The court there said (p. 155): “The defendant was found and duly served in Tazewell county, and we have held that unless he was there by reason of some fraud, artifice or trick on the part of the plaintiff, or some one acting for him, in order to obtain service upon him, he was properly found within that county, within the meaning of the statute. Cassem v. Galvin, 158 Ill. 30; Greer v. Young, supra (120 Ill. 184); McNab v. Bennett, 66 Ill. 157.” And the court there further said (p. 156): “Does the plea aver that the defendant was not found in Tazewell county within this rule of pleading? We think not. True, it states with certainty and definiteness that he was a resident of Jasper county. State of Missouri, and that he was not, at the time he was served, voluntarily in said Tazewell county but was there under arrest, and had been brought from his home in Missouri under arrest, upon a capias issued out of the county of Tazewell; but these facts, were not sufficient to exempt him from service of summons in the county in which he was in fact found.” (Citing cases.) “He was required to go farther, and show that he was not properly charged with the crime for which he was arrested and brought into the said county.”

In Brya v. Thomas, supra, 186 Ill. App. 281, decided by the Appellate Court of the second district, it was held that where a person in obedience to a subpoena issued in a suit goes to a county other than the one in which he resides and while there is served with summons in another case, the service is good unless there was fraud, artifice or trick on the part of the plaintiff or some one acting for him, which caused the party to go into a county where he did not reside. The court there said (p. 286): “Appellant was not a resident of Peoria county at the time of service of summons on him in this case but was only there in obedience to a subpoena issued in another case, with which appellee, the plaintiff here,, had no connection, and while so involuntarily there, he was served with summons in this case, and by proper plea he raised the question whether under those circumstances he was, as matter of law, found in Peoria county. . . .

“Whatever may be the holdings in other jurisdictions, it is settled law in this State that in the absence of fraud, artifice or trick on the part of appellee or some one acting for him, in order to obtain the service in question, appellant was properly found in Peoria county within the meaning of the statute. Willard v. Zehr, 215 Ill. 148, and authorities there cited.” See also 50 Corpus Juris p. 549, where it is said that the rule in Illinois is different from the rule in other States, and where comment is made on the case of Beatty v. Monahan, 240 Ill. App. 240.

The principle announced in the cases above mentioned, we think, is applicable to the facts in the case at bar. It affirmatively appears without dispute that defendant voluntarily came to Cook county to be present and take part in the trial of a cause brought by him in the municipal court of Chicago. He was not induced to come to Cook county by any fraud, artifice or trick on the part of plaintiff or any one acting for him. We hold that the service of process in this county was sufficient, and therefore the judgment of the circuit court of Cook county is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

Hatchett, J., concurs.

HcSurely, J.,

dissenting: I cannot agree that defendant voluntarily came into Cook county. Under section 6 of the Practice Act, Cahill’s St. eh. 110, 1J 6, he was compelled, to sue in this county or forego his right to prosecute his claim.

Neither can I agree that only, where the presence of the party in the foreign county is procured by trickery, can he claim immunity from service of process; although many of the cases cited in the majority opinion seem so to hold. Public policy should require that suitors may feel free and safe to attend within any county, outside of their own, upon- judicial proceedings in which their presence is required without incurring the liability of being summoned to answer in some other adverse judicial proceeding against them.


text:
    Lucia M. Hacker, Appellee, v. J. R. Goldberg and The U. S. Bond & Mortgage Company, Appellants.
    Gen. No. 35,254.

      Opinion filed October 19, 1931.
    Sissman & Sissman, for appellants.
    Cooney & Verhoeven, for appellee; John A. Verhoeven, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against the defendants to recover $500 which she claimed to have paid defendants for a membership in the Wandawega Country Club, which was then being organized in the State of Wisconsin. Apparently plaintiff’s claim was based under the provisions of section 37 of the Illinois Securities Law (par. 290, chap. 32, Cahill’s 1931 Stats.), it being plaintiff’s contention that the necessary docu-. ments provided for in that act had not been filed with the secretary of state of Illinois, prior to the time she paid the money, her contention being that the certificate given to her when she made her first payment of $100 was a “security” within the meaning of the Illinois Securities Law.

The defendants admitted the receipt of the $500 from the plaintiff but took the position that they received it in payment of membership in the Wandawega Country Club which was then being organized in Wiseonsin; that afterwards the club was incorporated under the laws of Wisconsin and that plaintiff was a member of the club. Defendants’ further position is that the certificate issued to plaintiff when she made her first payment was not a security within the meaning of the security law. The case was tried before the court without a jury and there was a finding and judgment in plaintiff’s favor and the defendants appeal.

The evidence tended to show that in December, 1929, plaintiff, who lived in Chicago, learned of the formation of the Wandawega Club by the defendants, and went to their office in Chicago and talked the matter over with the defendant, Goldberg, as a result of which she made and signed a written application dated December 31, 1929, to become a member in the Wandawega Country Club which was then being organized and for which she agreed to pay $500. $100 was paid in cash and she executed her instalment note for $400, payable in 20 instalments of $20 each. The evidence further shows that afterwards she made a number of monthly payments and in June or July, went to the club which was located near Elkhorn, Wisconsin, on two different occasions; that shortly after she returned after the last visit, she paid the balance of the $500 on July 10, 1930. The application signed by the plaintiff expressly stated that each member of the club when it should be formed “has a proportionate, and equal undivided interest in all of the property and assets of the Club be they real, personal or mixed.” Plaintiff testified that after she had made the last payment she called on the defendants and demanded the return of her money which was refused. The evidence further shows that it was agreed that when the country club was incorporated and plaintiff elected a member, she would be given a membership certificate and that plaintiff never received a certificate.

The defendants, in their amended affidavit of merits which was filed on the day of the trial, March 13, 1931, averred that “certificates of membership are in the process of preparation, and will be issued to the plaintiff and to other members as soon as they are prepared, which said membership certificates will set out fully all the rights and privileges of the various members of the Wandawega Country Club.” The defendants among other things, offered a certified copy of the charter of the country club but on objection it was excluded. This was error. Plaintiff had alleged that there was no country club organized and this was denied by the defendants. The defendants also said they would prove that plaintiff had regularly been elected and was a member of the country club but apparently, in view of the turn the case took as to whether the certificate given to plaintiff was a security within the meaning of the Blue Sky Law, no proof on that question was made. The certified copy of the country club’s charter which was excluded is in the record. Article 3 is as follows: “Nature of Organization. This corporation shall be a non-stock corporation. No dividends or pecuniary profits shall be declared or paid to the members thereof.” It is obvious that what plaintiff purchased was not a security within the meaning of the Illinois statute; that law is entitled “An Act relating to the sale or other disposition of securities and providing penalties for the violation thereof.” And section 2 of that Act, Cahill’s St. ch. 32, 255, provides “The word ‘securities’ shall mean and include stock, treasury stock, bonds, debentures, . . . participation certificates, certificates of shares or interest,” etc. We think the act intended to prohibit the sale unless its provisions were complied with, of securities from which income or profit was expected to be derived (Prohasha v. Hemmer-Miller Development Co., 256 Ill. App. 331), and not for an interest in a club from which no financial profit or income could be derived under the charter. Plaintiff has no right of action under the Illinois Securities Law but if she parted with her $500 and received nothing for it, an action would lie as for money had and received. Stewart v. Brady, 300 Ill. 425.

Plaintiff’s position was that she received nothing for her money but a copy of the application made by her for membership in the club. There is evidence in the record to the effect that plaintiff was to receive two lots of ground belonging to the golf club which was being organized. And there was evidence that two lots were offered to plaintiff which she refused to accept. Whether these lots or _ any property was owned by the club nowhere appears.

The defendants’ position was that plaintiff received what she paid the $500 for except that the certificate of membership had not been issued to her. Why the certificates of membership were not issued long* before, does not appear. The club was organized September 30,1930, but the certificate of membership had not been issued at the time of the trial, March 13, 1931. Whether the issuance of these membership certificates is of any moment we do not decide.

In view of the way in which the case was tried, and the evidence not being fully developed, and for the reasons stated, the judgment of the municipal court of Chicago is reversed and' the cause remanded.

Reversed and remanded.

McSurely and Matchett, JJ., concur.


text:
    Edward H. Morris, Receiver for Binga State Bank, Appellant, v. Fountain Thurman, Appellee.
    Gen. No. 35,283.

      Opinion filed October 19, 1931.

      James B. Cashin, for appellant; Thomas P. Harris, of counsel.
    Werner H. Sommers and Walter F. Sommers, for appellee.,
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

January 14, 1931, plaintiff caused judgment by confession to be entered on a promissory note against the defendant for $7,349.32, which included $428.53 attorneys’ fees. Afterwards the judgment was opened up and the defendant given leave to defend. There was a jury trial which resulted in a verdict and judgment in defendant’s favor, and plaintiff appeals.

Plaintiff’s suit is based on a judgment note made by the defendant, dated February 11, 1930, for $6,500 due six months after date, with interest at 7 per cent per annum. The note was payable to the Binga State Bank, of Chicago, of which plaintiff was receiver.

The theory of the defendant was that he was desirous of buying a farm and with that end in view, took the matter up with his brother-in-law, the president of the bank, who afterwards brought defendant’s attention to some farms in Michigan, which, after investigation, were found unsatisfactory to the defendant. That a short time thereafter, the president of the bank called the defendant to the bank and asked him what he had done about the farm. The defendant replied that nothing had been done and thereupon the president of the bank asked the defendant to sign an application for the purchase of a farm, and presented to the defendant a blank on which there was some printed' matter stating that it was such an application and requesting the defendant to sign it; that the defendant signed the paper believing it was such application; that at that time there were blank spaces in the document; that thereafter no farm was ever called to his attention by the president; that after-wards plaintiff was appointed receiver of the bank and produced the document which turned out to be a promissory note in which the date, the amount, the time of payment, as well as certain collateral mentioned in the note, appeared to have been written in ,by some one not authorized by the defendant; that the defendant received no consideration for the note and therefore was not liable.

Plaintiff offered in evidence the note and a cashier’s check of the Binga State Bank dated the same day as the note, viz., February 11, 1930, payable to the order of the defendant, and by him indorsed, the check showing that it had been paid by the bank. The defendant then put in his evidence as above stated, which was testified to by the defendant. In rebuttal the receiver and his assistant testified that after the receiver was appointed he endeavored to collect the note which he found among the assets of the bank; that the defendant stated he did not consider he owed the money because he received nothing for the note; that the defendant at that time further stated that he was called to the bank by the president, who told the defendant he was then ready to buy the farm for the defendant if defendant would sign the note; that the president would hold the money until the farm was bought, when he would pay for it and then give a deed to the defendant; that the defendant said nothing to the effect that he did not own the collateral mentioned in the note, the collateral mentioned being two $500 bonds, and two mortgages of $3,000 each.

The defendant’s theory was that he signed the note without reading it, upon the representation that it was an application to purchase a farm and that he received no consideration for it. If these were the facts and defendant was not guilty of negligence in. signing the note, he would have a good defense and the evidence tending to show these facts was properly admitted on the trial. If, on the other hand, the jury believed from the evidence that defendant knew he was signing a note and if the president of the bank obtained the $6,500 for him, obviously defendant would be liable. He would also be liable even if he did not receive the money, if he knew he was signing a note or was negligent in not knowing the nature of the instrument, because by doing so, he enabled some one to obtain $6,500 of the bank’s money.

The check for $6,500 on the bank is in the record and was signed by the cashier of the bank. It bears the purported indorsement of the defendant but he testified that it was not his signature but a witness testified for the plaintiff that he was familiar with defendant’s signature, and that the check bore the genuine indorsement of the defendant and the check was stamped “paid.” Neither the president of the bank, nor the cashier who signed the check, nor anyone connected with the bank was called as a witness nor were any records of the bank offered in evidence which might throw light on the transaction.

A great deal is said in the briefs as to whether plaintiff, the receiver, was the holder of the note in due course, and instructions were given to the jury on this question. We think none of such instructions should have been given. They would not enlighten the jury, but only confuse. The question for the jury was which version of the transaction they believed.

Considerable is said as to whether the receiver had a greater right to recover than the bank would have in case it had brought suit on the note. In Golden v. Cervenka, 278 Ill. 409, and other cases, the Supreme Court declared the law to be that where a representative of a bank induced a person to execute his note so as to make it appear as a part of the assets of the bank, although the bank would not be able to recover on the note, a receiver of the bank would be entitled to a judgment. But we think this law is inapt here because there is no evidence that the note was in any way used to swell the assets of the bank. Moreover, if the president of the bank, in obtaining the execution of the note, knew that the note was being executed not for the benefit of the bank, but on the contrary, to obtain $6,500 of the bank’s money, notice to the president Avould not be notice to the bank because their interests would be conflicting, and the bank or its receiver could bring suit on the note and recover unless the defendant without negligence on his part, executed what he thought was an application for a farm and not a promissory note.

What we have said disposes of plaintiff’s contention that the court erred in refusing to give three instructions which he requested, Nos. 1, 2 and 5, by which plaintiff sought to have the jury told, among other things, that the plaintiff was an innocent holder of the note in question. We think there was no error in refusing these offered instructions. Nor was there any error in the court refusing to give plaintiff’s requested instruction No. 3, which was to the effect that if the maker of the note has, by the careless execution of it “left room for an alteration to be made by insertion, without defacing the instrument or exciting the suspicion of a careful man, and the note by reason of the opportunity afforded is filled up with a larger amount than it bore when signed, the maker is liable thereon as altered, to any bona fide holder without notice.” The question sought to be covered by this instruction was not in the case. There was no evidence that a larger amount had been inserted in the note. The only evidence on this question was that defendant testified that it was in blank when he signed and delivered it to the president of the bank. The instruction only tended to confuse the jury and there was no evidence on which to base it.

Complaint is also made by the plaintiff to the refusal of the court to give his requested instructions 7 and 8. By No. 7, plaintiff sought to have the jury told, as a matter of law, that want or lack of consideration was no defense and that they should disregard whether the defendant received any money from the bank because the defendant was not permitted to make such defense. This was clearly erroneous under the facts which the evidence tended to show. Refused instruction 8 was also on the theory that plaintiff was an innocent person representing the depositors and creditors of the bank and that if they also believed that the defendant was an innocent person, the loss must fall upon the defendant. As we have aboye stated, if the defendant was not negligent in • executing the note believing that it was an application to buy a farm, he would not be liable even though the bank itself was without fault.

Plaintiff further contends that the court gave a number of instructions at the request of the defendant which are reversibly erroneous. We think this contention must be sustained, the complaint being to instructions numbers 1, 2, 3, 9, 10, 11 and 12. We think each of these instructions is wrong. The jury were told by instruction 1 that if a note or other instrument in writing for the payment of money was entered into without a good or valuable consideration, it was lawful for the defendant to plead the want of consideration and that “if it shall appear that such instrument was made or entered into without a good or valuable consideration, the verdict shall be for the defendant,” and that plaintiff was suing on a note for the payment of money and if the jury believed from the evidence the instrument was made without any good or valuable consideration the plaintiff could not recover. Under this instruction, if the jury found that the defendant received nothing for the note, their verdict must be for the defendant, which was clearly wrong. If the jury believed that he was negligent in executing the note or if they believed he was assisting some one to obtain $6,500 of the bank’s money, the plaintiff obviously could recover.

By instruction 2, the jury were told that if they believed from the evidence that at the time defendant signed the note, the date, the amount, the time of payment and the collateral mentioned in the body of the note were not in the note, then the instrument was incomplete at that time. And unless the jury believed from the evidence that the defendant' delivered the note to the bank for the purpose of giving effect to it as a promissory note, the plaintiff could not recover. The purport of this instruction is that if the defendant signed a blank note and the blanks were filled up after delivery, then there could be no recovery unless the defendant intended the document as a promissory note. This instruction ignored the lack of diligence, if any, on the part of the defendant in executing the document and it would in no way enlighten the jury as to the issues involved. Unless an instruction is intelligible and helpful it ought not to be given.

By instruction 3, the jury were told that “consideration, as applied to promissory notes, may consist either in some right, interest, profit or benefit accruing to the promisor or maker of the note, or some forbearance, detriment, loss or responsibility given, suffered or undertaken or agreed to be given, suffered or undertaken by the payee of the note at the request of the promisor, or maker.” It is obvious that this instruction was improper and apt to be misleading. The evidence of plaintiff was to the effect that defendant had received $6,500 of the bank’s money for the note, while that offered by the defendant was to the effect that he had received nothing. A long legal definition of consideration would manifestly tend to confuse and not enlighten the jury.

Instruction 9' told the jury that ‘ ‘ any alteration in a promissory note which changes the date, the sum payable, either for principal or interest, the time or place of payment, the number and the relations of the parties, the medium or currency in which payment is to be made, or which adds a place of payment where no place of payment is specified, or any other change or addition which alters the effect of the instrument in any respect, is a material alteration, and that when a negotiable instrument is fraudulently or materially altered by the holder without the assent of all the parties liable thereon, it is avoided except as against a party who has himself made, authorized, or assented to the alteration and subsequent endorsers.” This may be a good legal definition of alteration but there was no evidence of any alteration-in this case. There was no change of date, place, or time of payment, medium of currency in which payment was' to be made or any of the other matters mentioned. After the above definition was given, the instruction continued and was, in substance, that if the jury believed from the evidence that the blank note was filled up, specifying in detail the various words and figures written in the blank note, and that this was done without the knowledge or consent of the defendant, then the note was void. For the reasons above stated in reference to instruction 2, this instruction was clearly wrong and should have been refused.

Instruction 11 was similar to instruction 9 and should have been refused.

By instruction 10, the jury were told that if they believéd from the evidence that defendant did not receive any money from the bank or anything of value for it, and if they further believed from the evidence that the note was not given by the defendant to the bank “in satisfaction of or as security for, an antecedent or preexisting claim of any kind or nature” which the bank had or claimed to have against the defendant, etc.; there is considerably more to the instruction but what we have quoted is sufficient to show that it should have been refused. There was no claim that the note was given by the defendant to the bank in satisfaction of any claim it had against him or as security for any claim it might have against anyone.

Instruction 12. The court defined in the words of the statute a holder in due course of a promissory note and that the receiver in the instant case was not a holder in due course. This instruction obviously would not enlighten a jury and was wrong because all the evidence shows that the plaintiff as receiver, or the bank, could recover on this note unless the defendant was deceived in believing that he was executing an application for the purchase of a farm and that he was not guilty of such negligence in failing to read the document, as would bar him.

The question of fact to be determined by the jury in this case was not submitted to the jury but on the contrary if the jury followed the instructions of the court given at the request of the defendant they could return no verdict except for the defendant. For the reasons stated, the judgment of the municipal court of Chicago is reversed and the cause remanded for a new trial.

Reversed and remanded for a new trial.

McSurely and Hatchett, JJ., concur.