author: Mr. Justice John J. Sullivan

text:
    Harriet Schmidt, Appellee, v. City of Chicago, Appellant.
    Gen. No. 38,197.
    Opinion filed April 7, 1936.
    William H. Sexton, Corporation Counsel, and Alexander M. Smietanka, City Attorney, for appellant; Lionel J. Berc, Assistant City Attorney, of counsel.
    Kahn & Kahn, of Chicago, for appellee; Harry A. Kahn and Irving K. Russ, of Chicago, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

This is an action brought by plaintiff, Harriet Schmidt, against defendant, City of Chicago, for injuries sustained through the alleged negligence of defendant’s employee in the operation of a truck hauling garbage-laden trailers to the city incinerator. Upon the jury’s verdict judgment was entered against defendant for $1,250. This appeal followed.

Plaintiff’s declaration consisted of eight counts, of which those numbered 2, 4, 6, 7 and 8 were dismissed at the close of her case. Count one alleges in substance that on June 29, 1933, plaintiff was a passenger in an automobile proceeding in a southeasterly direction on Elston avenue, a public highway, in Chicago, at or near its intersection with Division street, and was in the exercise at all times of due care, caution and diligence for her own safety; that, pursuant to its powers and duties, defendant, by its duly authorized agents, servants and employees, was possessed, had charge and control of and Avas operating in and about its private and corporate business, a certain motor vehicle, commonly knoAvn as an auto truck, with trailers attached thereto, for transporting and carrying away garbage and other refuse; that such truck with attached trailers was being driven in a northwesterly direction upon Elston avenue aforesaid at or near its intersection Avith said Division street; and that defendant, by and through its agents, employees and servants, in utter disregard of its duty, so carelessly, negligently, wrongfully and improperly drove said motor truck and trailers that same were caused to and did run into and collide with an automobile in which plaintiff was riding as a passenger, causing her to sustain severe injuries as a result thereof. This count also set forth in haec verba statutory notice and alleged service of same on the mayor, city attorney, corporation counsel and city clerk of the city of Chicago.

The third count is identical with the first except that the negligence charged Avas driving at a high, dangerous, excessive and unreasonable rate of speed.

The fifth count is also identical with the first except that the negligence charged was the violation of section 40 of the Motor Vehicle Act concerning the duty of the driver of a vehicle to keep to the right of the center line of the street.

The facts so far as they are essential to a consideration of the issues involved are that on June 29, 1933, plaintiff was a passenger sitting in the rear seat of a Cadillac sedan owned and driven by her brother, Leo Blockus; that seated in the rear seat with her was her brother-in-law, Walter Pallaeki, and Matthew Scar-buck sat in the front seat to the right of the driver; that it had commenced to rain about 10 minutes prior to the accident; that Blockus was driving the car in a southeasterly direction on the west side of Elston avenue, immediately to the west of the southbound street car tracks; that, as he approached within 300 feet of the intersection of Elston avenue and Division street, a truck coming from the east on Division street and drawing three trailers being used by the city of Chicago to remove garbage turned into Elston avenue to proceed in a northwesterly direction; that, as the truck and trailers completed the turn, the last trailer skidded west across the width of Elston avenue and struck the car in which plaintiff was riding just as the driver, Blockus, had swerved into a gasoline station driveway to avoid being struck by the slddding trailer; that the truck and' trailers continued northwesterly on Elston avenue to Blackhawk street; that the driver of a Ford truck, who had witnessed the accident, together with Pallaeki, followed the truck and trailers to the point where they stopped at Blackhawk street and informed the driver of the accident, whereupon he turned around and went back to the scene of the collision; that plaintiff, who was rendered unconscious by the collision, was removed from the car and taken to St. Mary’s Hospital; that the street was very slippery at the intersection of Elston avenue and Division street; that, as a result of the accident, plaintiff sustained injuries which compelled her to remain at the hospital one week and at home for two weeks; and that she has suffered headaches and dizzy spells ever since.

The contentions of defendant which are seriously urged and which are presented for our determination are (1) that in the removal and disposition of garbage by the operation of trucks and trailers, the city of Chicago was exercising its police power to protect the public health and suppress disease, which is a governmental function, and that therefore it could not be held liable for the negligence of the driver of its truck and attached trailers; and (2) that the statutory notice to the city of plaintiff’s claim was fatally defective in that it did not correctly state the attending physician’s address.

Plaintiff’s theory is that in removing and disposing of garbage the municipality was engaged in a corporate or quasi-private function and is liable for the negligence of its employees; and that the notice of her claim, which she served upon the city through its officers, was in substantial compliance with the statutory requirements.

As to defendant’s first contention, while our Supreme Court has not, in so far as we have been able to ascertain, passed upon the specific question of the liability of a municipality for the negligence of its servants and employees in the removal of garbage, we think that the rule established in this State imposing liability on municipalities for the negligence of their employees and servants in the exercise of analogous and kindred functions is applicable as well to the removal and disposition of garbage.

In the recent case of Wasilevitsky v. City of Chicago, 280 Ill. App. 531, where one of three garbage-laden trailers attached to a truck owned and operated by the .city of Chicago struck an automobile and injured Wasilevitsky, the precise question raised in the instant case was before the court and was determined adversely to the city in a well considered opinion written by Justice O’Connor. We are in full accord with the views expressed therein, and quote at length from that opinion:

“Whether the City was acting in a governmental capacity at the time in question, in which case there would be no liability, or whether it was acting in a ministerial capacity, in which case there would be liability, is a question not free from difficulty. Somewhat similar questions have been before the courts of this country on numerous occasions and the opinions and decisions are irreconcilable. And as pointed out by this court in Bedtke v. City of Chicago, 240 Ill. App. 493, we think the reason for such diversity of opinion has ‘arisen from a misconception of early law, the ordinary principles of the law pertaining to torts ought to apply to a municipal corporation; in other words, such a corporation, like any other principal, should be liable for the torts of its agents, and the distinction between governmental and ministerial functions, used in determining the liability of a municipal corporation for negligence in affirmative conduct, should be abandoned. 34 Yale Law Journal, 229; 4 Dillon, Mun. Corp., p. 3002.
“ ‘ “Injuries caused by negligence of municipal employees are proper items of expense to be borne by the community. For omission to perform public duties running to the community as a whole there should of course be no municipal liability to private individuals. But in the undertaking of an affirmative course of conduct it is immaterial that the duty being performed is a public one from which the municipality derives no profit. Liability should be based upon the exaction of the law that everyone, in the performance of an affirmative course of conduct, must at his peril measure up to a standard of due care.” 34 Harv. Law Rev., p. 66.’
“In the Bedtke case we held that the City of Chicago was liable for the negligence of its servants in the use of a portable incinerator in an alley back of plaintiff’s premises which caused the destruction by fire of certain personal property belonging to plaintiff. Certiorari was denied by the Supreme Court (241 Ill. App. XV). In that case we discussed, a number of authorities, among them Johnston v. City of Chicago, 258 Ill. 494, in which it was held that the City was liable for an injury sustained by Johnston through the negligence of the driver of an automobile used to deliver books from the public library. The court there said (p. 497): ‘ Counsel for appellant insist that the City of Chicago, in establishing and carrying on a public library, is simply exercising a public or governmental function as distinguished from a strictly municipal function, and therefore it is not liable for the negligent acts of its employees . . . (499, 500). The organization of this public library is for the exclusive benefit of the territory of the City of Chicago and not for the State at large. It has been organized by the people of that city, through their proper representatives, voluntarily, and the duties to be performed have not been thrust upon the people of said city nolens nolens. . When a city under no obligation to light its streets voluntarily undertakes to do so, it has been held liable for negligence in the management of its corporate property when used for such purpose.’ And continuing the court said (p. 501): ‘In most jurisdictions in this country, however, a municipality is liable for failure to keep its streets in safe condition for public use. . . . This is the rule, as we have seen, in this State. ’
“In Hanrahan n. City of Chicago, 289 Ill. 400, plaintiff was injured as a result of a wooden awning, which extended over the sidewalk, falling and striking him. It was held that the City was acting in its ministerial capacity in repairing* or removing obstructions from the street and for any negligence in this respect it was liable. In that case the court discussed a number of authorities and said (p. 405): ‘Where a municipal corporation is acting, within its authority, in a ministerial capacity in the management of its property or in the discharge of its duties in repairing or removing obstructions from streets, or is negligent in failing to discharge its duties of keeping its streets in repair and in safe condition for travel, it is liable for all injuries caused by such negligence when the party injured is exercising due care for his safety. Johnston v. City of Chicago, 258 Ill. 494.’
“ ‘A municipal corporation acts judicially when it selects and adopts a plan for the construction of a public improvement, but in carrying out such plan or in removing obstructions or dangers from its streets it acts ministerially and is bound to see that the work is done in a reasonably safe and skillful manner. (City of Chicago v. Seben, 165 Ill. 371.)’
“In Roumbos v. City of Chicago, 332 Ill. 70, the City was held liable for the death of a child which was caused by its clothing having* caught fire from a fire set by a street cleaner to a pile of rubbish he had negligently left burning without watching it. The court there said (p. 74): ‘The division of municipal functions into public and governmental on the one hand and private and corporate on the other is not well defined, but is vague and indefinite. No definition of the terms has been declared which is of much practical value or “which will precisely embrace torts for which a civil action will lie, in the absence of a statute declaring the liability against a municipal corporation. ” . . . It has been said that all that can be done with safety is to determine each case as it arises. ’ And continuing said (p. 75): ‘The reason and essence of this rule is clear and easily to be understood, but its application to the specific cases is often of great difficulty. . (p. 76.) The grounds upon which the liability of the municipal corporation proper is usually placed are, that the duty is voluntarily assumed and is clear, specific and complete, and that the powers and means furnished for its proper performance are ample and adequate ’; that if the work done was for the benefit of the ‘general public (the people of the State at large) ’ there was no liability ‘but so far as their acts concern merely the interest of the particular locality and its inhabitants they are responsible, the same as private corporations. . . . “ The rule of law is a general one that the superior or employer must himself respond civilly for the negligence or want of skill of his agent or servant in the course or line of Ms employment by which another who is free from contributory fault is injured.” (2 Dillon on Mun. Corp., sec. 968.) The application of this rule to municipal corporations in cases of torts by their employees and servants tends more to the securing of justice than the release of the corporations from the results which follow for private corporations or individuals. ’
“In Gebhardt v. Village of LaGrange Park, 268 Ill. App. 556, wé held that the Village was liable for injuries suffered by a child through the negligence of the servant of the Village in driving an automobile which was used to transport children from the Village to a swimming pool located about seven miles outside the Village, which pool was being operated privately by a man and his wife. The basis of our decision was that since what was done by the Village was for the benefit of the inhabitants of the Village and not for the people of the State at large, the Village, in transporting the children to and from the swimming pool, was not acting in its governmental capacity. This holding was wrong. Gebbardt v. Village of LaGrange Park, 354 Ill. 234, One of the reasons for the reversal by the Supreme Court seems to have been that transporting the children to and from the pool was not specifically limited to the children of the Village. The court there said (p. 239): Among the aims of government are those to foster and promote health, comfort, recreation and sanitary conditions for the public, and unless specifically limited to certain classes of persons or to citizens of the Village itself such benefit extends to the public generally.’ The court there discussed the case of Roumbos v. City of Chicago, 332 Ill. 70.
“Counsel for the City, in its brief, cite the case of Consumers Co. v. City of Chicago, 313 Ill. 408, and many other authorities and contend that the Consumers case is controlling here. In that case a bill was filed by a taxpayer against the City and its officials to restrain the purchase of a tract of land to be used by the City as a dumping ground for garbage and other waste matter; and it was contended that a city ordinance which authorized the purchase of the property was invalid and that the City was limited by certain acts of the legislature. The question of the liability of a city for the negligence of its employees in the street cleaning department was not considered.
“In a number of jurisdictions it has been held that the cleaning or sprinkling of streets or the removal of garbage is a corporate function to which the benefit to the public health is a mere incident, and that the municipality is liable for the torts of its employees engaged in such work. City of Denver v. Porter, 126 Fed. (C. C. A.) 288; City of Pass Christian v. Fernandez, 100 Miss. 76; Missano v. Mayor of New York, 160 N. Y. 123; Silverman v. City of New York, 114 N. Y. S. 59; Quill v. New York, 36 N. Y. App. Div. 476, 55 N. Y. S. 889; Flannagan v. Bloomington, 156 Ill. App. 162; Ostrom v. San Antonio, 94 Tex. 523, 62 S. W. 909; Denver v. Maurer, 47 Colo. 209, 168 Pac. 857.
“There are authorities holding to the contrary on the. theory that cleaning streets and the removal of garbage are health measures and are therefore governmental. But, so far as we are advised, the collection and removal of garbage even as a health measure has never been adopted as a function of the general government. If a State does not owe the duty to the public to remove garbage, it is not clear how a municipality can be its agent exercising the delegated powers of the State in its performance. In the cases just cited it is held that the removal of garbage is directly for the benefit of the city’s residents in which the State, if at all, has only an indirect interest — a secondary consideration. We think this latter view is in accordance with common sense and sound reasoning and in line with the authorities of our own State, some of which are Johnston v. City of Chicago, 258 Ill. 494; Bedtke v. City of Chicago, 240 Ill. App. 493 — certiorari denied by the Supreme Court, 241 Ill. App. XV — and Roumbos v. City of Chicago, 332 Ill. 70.”

In Roumbos v. City of Chicago, 332 Ill. 70, where it was urged by the city that the cleaning of its streets was a governmental function, but it was nevertheless held liable for the negligence of one of its street cleaners, the court, in addition to that portion of the opinion quoted in Wasilevitsky v. City of Chicago, supra, used the following pertinent language at pp. 82, 83-4:

“It is argued that the city was acting under the police power for the preservation of the public health by causing the streets to be cleaned. . . . The United States circuit court of appeals for the eighth circuit, in answer to the same argument, said: ‘In almost all affairs of purely local concern some indirect relation may be traced to a matter of health, safety, or other subject of governmental cognizance. The test is not that of casual or incidental connection. If the duty in question is substantially one of a local or corporate nature the city cannot escape responsibility for its careful performance because it may in some general way also relate to a function, of government. Thus, from very early times the maintenance of highways has been of general interest. Nevertheless the overwhelming weight of authority is to the effect that the. superintendence and care of the streets and alleys of a city, and all that directly pertains thereto, are peculiarly in the class of municipal duties for the neglect of which the city, in its corporate character, is liable. ’ (City of Denver v. Porter, 126 Fed. 288.) . . .
“It is argued that the great weight of authority in the decisions of the courts of final jurisdiction in other States is contrary to the conclusion we have reached. We have not overlooked or failed to consider those decisions. Those denying the liability of the city are more numerous than those to the contrary, but in our judgment the view which we have expressed is sustained not only by our own decisions but by the better reason and is more just in its operation than the other view.” (See, also, Hanrahan v. City of Chicago, 289 Ill. 400; Browning v. City of Springfield, 17 Ill. 143; City of Lacon v. Page, 48 Ill. 499; Bedtke v. City of Chicago, 240 Ill. App. 493.)

We are .not going to attempt within the confines of this opinion to discuss at length the authorities of the various jurisdictions pro and con on this question, but from our examination and consideration of them we find it invariably true that where it is held that a city acts in a corporate capacity in the cleaning of its streets, it is likewise held that garbage and ash removal and disposition is a corporate function as distinguished from a governmental duty. Our foremost authors and text writers in their classification of subjects for treatment couple the removal of garbage with the cleaning of streets. (14 A. L. R. 1473; 43 C. J. sec. 1750; McQuillan Mun. Corps. (2d ed.), vol. 1, sec. 339, subsec. 4; Dillon Mun. Corps. 5th ed. vol. 4, sec. 1662.)

We can perceive no distinction in principle or in the character of the work between services rendered by the city of Chicago in cleaning its streets and alleys and collecting and disposing of its garbage. While the protection of health has always been a governmental function, the removal and disposition of garbage has never been included within its sphere except as an incident thereto. In so far as we know, government as an attribute of its sovereignty never assumed the removal and disposition of garbage throughout the State at large. Such always has been and on farms and in the sparsely settled communities of the State still is essentially and primarily a work that is performed by private citizens. However, as more populous centers developed, it became impractical in most cases for private citizens to properly attend to this function and it became necessary for the municipalities to assume it on account of the complexity of life and conditions peculiar to such municipalities.

It is clear upon principle and authority that the city of Chicago in the collection and removal of the garbage of its citizens acts in the discharge of a special power granted it by the legislature, in the exercise of which it is a legal individual, as distinguished from its governmental function when it acts as a sovereign, and the fact that the discharge of this duty might incidentally benefit the public health does not make the removal of the garbage a public function. In considering this question in City of Denver v. Porter, 126 Fed. 288, the United States Circuit Court of Appeals said at p. 294:

“We are of the opinion that in the case before us the removal of the waste and refuse from the alleys of the city in the city carts, the deposit thereof upon the dumping grounds near Porter’s premises, and the supervision of such work and of the dump itself were of local or municipal concern, and that the officers and employees of the health department of the city, in the discharge of their duties in connection with such work and supervision, were acting as the representatives of the city, for whose negligent acts or omissions it would be liable. . . . The dump was under the exclusive control of those officers, and they represented the local or corporate interests of the city rather than the state in its sovereign capacity.”

In the City of Pass Christian v. Fernandez, 100 Miss. 76, where a four-year-old child was run over and injured by a city cart used for hauling trash and dirt, the court used this language at pp. 81 and 82:

“The idea that a driver of a city cart, engaged in hauling trash and dirt for the city, is engaged in a ‘governmental function’ in any sense in which the word is used in the law, requires a stretch of the imagination that is beyond our power to make. . . .
“The public or governmental duties of a city are" those given by the state to the city as a part of the state’s sovereignty, to be exercised by the city for the benefit of the whole public, living both in and out of the corporate limits. . . . The use of the cart in hauling dirt or trash for the city is for no governmental purpose, as connected in any way with the sovereign duty of the state. . . . But the hauling of dirt and trash is for the use and advantage of the city in its corporate capacity, is a corporate duty, and the city is liable for all damage done by any officer or agent so employed.”

The city of Chicago being in the exercise of a purely private or corporate function in collecting and removing garbage, and the negligence of the driver of its truck with the attached garbage laden trailers having been shown to be the sole cause of the accident, plaintiff is clearly entitled to recover, provided notice of her accident and her claim thereon given to the officers of the city was in substantial compliance with the statutory requirements.

The only defect claimed in the notice is that it gave the address of the attending physician as 6328 Sheridan road when his correct address was 6325 Sheridan road. The attending physician, Dr. George Mueller, was the surgeon in chief of St. Mary of Nazareth Hospital, and a man of considerable repute in the city of Chicago, having practiced medicine and surgery here for more than 40 years. The purpose of the notice is not only to enable the city to intelligently investigate the alleged claim, but that it may prepare its defense thereto. (Reichert v. City of Chicago, 169 Ill. App. 493.) While it has been repeatedly held that the notice is mandatory and a condition precedent to recovery and that it must specify “the name and address of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, and the name and address of the attending physician (if any),” it has also been held that it was not intended that such a notice should serve to entrap the plaintiff who had a meritorious cause of action if it was sufficiently definite.” (Reule v. City of Chicago, 268 Ill. App. 266.)

In McComb v. City of Chicago, 263 Ill. 510, where the question of substantial compliance was raised, the court said at pp. 512-514:

“It will be observed the notice stated the injury received by plaintiff was ‘ at or near the corner of Thirty-ninth street and Campbell avenue.’ It does not specifically state which corner, and appellant insists the notice is too uncertain and indefinite as to the place of the accident to be a substantial compliance with the statute. It must be admitted that in this respect the notice was crudely and carelessly prepared, but if, considering the whole notice together, it gives sufficient information to the city authorities to enable them, by the exercise of reasonable intelligence and diligence, to locate the place of the injury and ascertain the conditions alleged to have existed which caused it, it is sufficient, according to the weight of the authorities, to serve the purpose for which it was required by the statute to be given. No particular form of notice is required by the statute. Statutes similar to ours are in force in many States of the Union, and the sufficiency of notices given under such statutes as to the place of the injury has frequently been passed upon by the courts of other States. In Ellis v. City of Seattle, 92 Pac. Rep. 431, the notice stated the injury occurred by plaintiff driving in a hole on the west side of a street. The proof showed the hole was on the east side of the street. The street was forty-six feet wide, and the officials of the city testified they had no knowledge of any defective condition of the east side of the street at the time of the injury. The court held the requirements of the notice should receive a liberal construction; that the purpose of it was to enable the officers of the city to locate the place of the injury with a view of preparing a defense if it was thought a defense should be made, and that if the notice directed the attention of the officers with reasonable certainty to the place of the accident the requirements of the statute were met. The court said: ‘It was not intended that the terms of the notice should be used as a stumbling block or pitfall to prevent recovery by meritorious claimants.’ The notice was held sufficient. .
“We think the case comes within the rule announced in Carr v. Ashland, 62 N. H. 665. In that case the court said: ‘If the statement so designates the place that the officers of the town, being men of common understanding and intelligence, can by the exercise of reasonable diligence, and without other information from the plaintiff, find the exact place where it is claimed the damage was received, it is in this respect sufficient, because it fully answers the purpose of the statute.’ ”

In Isaacson v. City of Chicago, 240 Ill. App. 659 (abst.), where the notice gave the address of the attending physician as 1301 North Western avenue, and plaintiff testified that at the time she received her injuries his address was 1300 North Western avenue, it was held adequate. In Schweer v. City of Chicago Heights, 168 Ill. App. 52, where the notice read “the name of the attending physician is Dr. F. A. Walls, with offices above Bradley’s Drug Store on the corner of Illinois Street and West End Avenue in the City of Chicago Heights, Illinois, ’ ’ it was held sufficient. In McComb v. City of Chicago, supra, where the notice stated that the plaintiff was taken in charge by the police of the city of Chicago immediately after the accident and removed in a patrol wagon to the Cook County Hospital and that he was unable to give the name and address of the physician who treated him, the notice was held to be sufficient. In Pickens v. City of Kankakee, 200 Ill. App. 547 (abst.), it was held that the statutory notice filed with the city attorney and city clerk was sufficient (although it did not contain the address of the attending physician), where it appeared that such physician also held the position of city physician. The court said that it must be assumed that the residence of such physician was known to the city officers and that by the exercise of reasonable diligence they could ascertain any fact for which resort to the attending physician was necessary.

In all jurisdictions where similar statutes as to the notice to municipalities of claims on account of personal injuries are in force, they have been uniformly construed liberally, and substantial compliance has been held sufficient. The attending physician in this case was a well known practitioner in the city of Chicago, whose correct address was within three street numbers of the address stated in the notice and almost directly across the street from same. We think that the officers and investigators of the city of Chicago being men of common intelligence and understanding could have by the exercise of reasonable diligence and without further information from plaintiff ascertained the doctor’s correct address, and, this being so, the notice was sufficient in that it fully answered the purpose of the statute.

For the reasons stated herein the judgment of the circuit court is affirmed.

Affirmed.

Scanlan, P. J., and Friend, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Modern Equipment Corporation, Appellant, v. Northern Trust Company, Appellee.
    Gen. No. 38,223.

      Opinion filed April 7, 1936.
    John A. Brown, of Chicago, for appellant.
    Castle, Williams & McCarthy, of Chicago, for appellee; Franz W. Castle, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

By this appeal plaintiff, Modern Equipment Corporation, seeks to reverse a judgment for costs entered against it in favor of defendant, Northern Trust Company, in an action tried by the court without a jury. One C. E. Gordon was president and treasurer and the only active officer of plaintiff corporation during the period from April 4, 1931, to July 7, 1933, when the checks upon which this action was brought were drawn and paid.

Plaintiff’s statement of claim alleged substantially that it was a depositor in defendant bank; that it drew 55 checks to the order of C. E. Gordon; that said checks were charged against plaintiff’s account by said bank and returned to plaintiff without the indorsement of the payee thereon; that plaintiff demanded from defendant the aggregate amount of such checks; that the bank refused to repay said money; and that plaintiff was thereby damaged $4,833.90, the total amount of such checks, plus interest on the respective checks from the date each was charged to plaintiff’s account.

Defendant’s affidavit of merits, after admitting the allegations of fact in the statement of claim, averred that all the checks were in the possession of the payee after they were drawn; that they were all delivered by the payee to his wife, who deposited all but four of them in a joint account which she and her husband maintained at the Austin State Bank, and that two of them were cashed by her over the counter of that bank; that the other two checks were either cashed or used in the payment of bills or making purchases by Gordon’s wife; that his wife had full authority from him to deposit or cash the checks; that the payee received the proceeds of all the checks; and that plaintiff suffered no damage.

The salient facts as they appeared from the evidence are that plaintiff by C. E. Gordon, as president, during the period from April 4, 1931, to July 7, 1933, drew 55 checks, aggregating $4,833.90 on defendant bank, payable to the order of C. E. Gordon; that Gordon and Ms wife had a joint checking account in the Austin State Bank, payable to the order of either of them; that Gordon turned the 55 checks over to his wife without indorsing them as payee; that the checks were in Gordon’s possession from the time they were drawn until he turned them over to his wife; that he gave the checks to her and authorized her to deposit or cash them; that she indorsed all of them, either with her own or her husband’s name; that she deposited 51 of the checks in the joint account of herself and her husband at the Austin State Bank and cashed two of them over the counter of that bank; that one of the checks for $50 was given by her in payment of their rent and one for $25 was indorsed by her to the Atlantic & Pacific Store, either in payment for groceries or for cash; and that all the checks were paid by defendant bank without the payee’s indorsement and charged to plaintiff’s account.

Notwithstanding Buie 39 of the Supreme Court, which provides that in an appellant’s brief “the concluding subdivision of the statement of the case shall be a brief statement of the errors . . . relied upon for a reversal,” plaintiff devoted seven pages of its 100-page brief to a prolix assignment of 33 errors, the first 15 of which are directed to the alleged error of the trial court in denying plaintiff’s motion to strike defendant’s affidavit of merits, and many others which are general in their nature. Defendant’s affidavit of merits presented a meritorious legal defense and plaintiff’s motion to strike same was properly denied.

Plaintiff’s real contention is that, even though the payee named in the 55 checks received the proceeds of same, the defendant bank is liable to it as the drawer of the checks because the bank as drawee paid and charged them to plaintiff’s account without the payee having indorsed them.

Defendant’s theory is that it is not liable for paying the checks, although they did not bear the payee’s indorsement, since the payee, C. E. Cordon, actually received the proceeds or the benefit of the proceeds of the checks and no damage could have been suffered by plaintiff in so far as the defendant bank was concerned in the transactions..

Thus, stripped of verbiage, the material issue presented for our determination is the question of law raised by the pleadings. Where the payee is shown to have received the proceeds of checks drawn to his order, can the drawer of the checks complain that the checks when returned to it did not bear the payee’s indorsement and on that ground alone charge the drawee bank with the amount of the checks so paid?

No case in this State has been cited wherein this precise question has been decided, but reason and logic impel the conclusion that, if the person designated as payee in the checks and entitled to receive their proceeds actually does receive them or the benefit of them, the drawee bank has discharged its obligation to the drawer of the checks, which has suffered no loss, even though such checks were paid without the payee’s indorsement. If the drawee bank paid checks without the indorsement of the payee and the payee did not receive their proceeds, an entirely different question would arise.

The general principle applicable to the question involved here as stated in 7 C. J., p. 679, par. 401, is as follows:

“Notwithstanding the universal custom of banks to require a payee to indorse a check before payment, the rule as declared by the courts is that the payee need not indorse the check in blank as a voucher for the payment.”

In passing upon this question in Osborn v. Gheen, 16 D. C. Reports, p. 189 (5 Mackey), affirmed by the Supreme Court of the United States in 136 U. S. 646, the court said (p. 194):

“The Court was also entirely right in directing the allowance of check for $1,925, which was paid by the bank, although it was not endorsed by the payee. There is no necessity at all for the legal operation of the payment that the payee should endorse the paper. All that he has to do is to receive the money. The party to whom it is directed is ordered to pay so much money to him.
“All that the drawee has to do, therefore, is to satisfy himself that when the order is presented, the true and proper person is there at hand to receive the money and to receipt for it. It is true it is common for the payee to endorse in blank at the bank, or for the holder of the instrument to endorse in blank when he receives payment, as a voucher for the payment.
“But a voucher is not necessary nor is a receipt necessary to give validity to a payment. The bank makes the payment, of course, at its peril, if the payee shall afterwards challenge the payment and say the money ivas not paid to him but to someone else. Then it is a mere question of identity as between the payee and the bank; but it does not go to the legal integrity of the instrument.
“The bank upon which the note or bill of exchange is drawn is authorized and required to pay the money to the payee, knowing him to be the identical man indicated without any endorsement and without any receipt.” (Italics ours.)

There are many authorities to the effect that even though a drawee bank pays a check on the forged indorsement of the payee named therein, and it is shown that the proceeds of the check or the benefit of such proceeds are received by either the payee or the drawer, no recovery can be had against the drawee bank by the drawer of the check. (Federal Land Bank of Omaha v. Omaha National Bank, 118 Neb. 489; Andrews v. Northwestern Nat. Bank, 107 Minn. 196; Bayley v. Hamburg, 106 Wash. 177; Beeson-Moore Stave Co. v. Clark County Bank, 160 Ark. 385.)

It is true that all these checks were drawn by plaintiff corporation, by C. E. Gordon, as president, to his own order individually, but the defendant bank is not charged with any dereliction of duty because of that fact or because it honored the checks so drawn. In fact, plaintiff’s statement of claim averred that it “was the duty of said defendant, Northern Trust Company, to pay out the amounts of money specified in each of said checks to the payee in each of said checks named when said payee had properly endorsed each of said checks and surrendered the same to said defendant.”

In view of the fact that the only issue raised by the pleadings in this cause was whether or not plaintiff was entitled to recover from defendant the amount of the checks in question because the drawee bank honored them without the payee’s indorsement, the trial court properly excluded evidence offered by plaintiff to show that Gordon had dealt dishonestly with plaintiff’s funds and that a decree had been entered against him in the superior court in favor of plaintiff for wrongfully taking or appropriating money belonging to it, including that procured through some or all of these checks.

It is urged that the court erred in admitting in evidence records of the Austin State Bank showing the joint checking account of C. E. Gordon and his wife, the deposit therein of 51 of the checks, the payment in cash by that bank to Mrs. Gordon of two of the checks, Gordon’s testimony that he delivered all the checks to his wife and authorized her to deposit or cash them, and Mrs. Gordon’s testimony as to the delivery of them to her by her husband and her disposition of the checks. We think this evidence was competent and material to establish the drawee bank’s defense that, regardless of the lack of the payee’s indorsement, on the checks, Gordon actually received their proceeds or the benefit of their proceeds.

Complaint is further made that though this evidence showed conclusively that the payee received the proceeds of the checks, it can he of no avail to defendant since it bad no knowledge of such facts when it paid the checks without the payee’s indorsement. This contention is without merit. The actual receipt of the proceeds of the checks by the payee is controlling rather than when the defendant hank received notice or knowledge that he received same.

Eegardless of the equities that have existed or now exist in the relations between plaintiff, Modern Equipment Company, and C. E. Gordon, Gordon, in so far as the defendant, Northern Trust Company, is concerned, had authority to draw checks in the name and in behalf of plaintiff as its president, and the defendant bank as drawee was authorized to honor checks so drawn, even to the order of Gordon himself. Its primary duty and obligation was to see that the proceeds of the checks.were paid to the named payee or to his order. While the defendant paid the checks at its peril without the payee’s indorsement, its obligation to plaintiff was discharged when the payee designated and intended to receive the proceeds of the checks, actually did receive them. Whatever loss, if any, plaintiff may have suffered through the conduct of Gordon, no act of defendant has been shown to have contributed thereto.

It is idle to urge that the finding of the trial court was against the manifest weight of the evidence. The evidence as to the actual receipt of the proceeds of the 55 checks by Gordon, the payee, is not only uncontradicted, but is conclusive of the only issue in the case.

For the reasons indicated herein the judgment of the municipal court is affirmed.

Affirmed.

Scanlan, P. J., and Friend, J., concur.


text:
    Adelaide M. Thomason, Appellant, v. Chicago Motor Coach Company, Appellee.
    Gen. No. 38,373.
    Opinion filed April 7, 1936.

      Young, Pares & Peterson, of Chicago, for appellant; Thomas J. Young, of counsel.
    No appearance for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

On the face of her original statement of claim filed June 12, 1934, plaintiff designated her action “Tort-First Class . . . Claim for $2,000.” Defendant filed a special appearance and a motion and petition to dismiss the suit on the ground that under the statute the jurisdiction of the municipal court is limited in actions ex delicto for personal injuries to cases in which the damages claimed do not exceed $1,000. Defendant’s motion was denied and it thereafter filed an affidavit of merits. April 8, 1935, by leave of court, plaintiff filed an amended statement and affidavit of claim describing her action as “Legal Liability-First Class,” • the designation prescribed by the municipal court rules, and increased her claimed damages to $5,000. April 17, 1935, defendant again filed a motion and petition for the dismissal of the cause for want of jurisdiction on the same ground alleged in its prior petition to dismiss. This motion was sustained and judgment entered dismissing the cause at plaintiff’s costs. This appeal is brought to reverse the judgment. Defendant filed no brief in this court.

Plaintiff’s amended statement of claim alleged substantially that defendant at the time of the accident was operating divers lines of motor coaches on the streets of Chicago as a common carrier of passengers for hire, and that plaintiff at the special instance and request of defendant became a passenger on one of said coaches and paid her fare of 10 cents, whereupon it became the duty of defendant to carry and land her safely; and that defendant failed to use proper care, skill and diligence in that regard, by reason of which plaintiff was injured.

The sole question presented for our determination is whether the municipal court has jurisdiction of an action by a passenger against a common carrier for hire for breach of the implied contract of carriage where the amount claimed by the passenger for damages for personal injuries exceeds $1,000.

This action was ostensibly brought under sec. 2 of the Municipal Court Act of 1905, as amended in 1931 (par. 390, ch. 37, Cahill’s Ill. Rev. Stats, of 1933), which provides, in part, as follows:

“That said Municipal Court shall have jurisdiction in the following cases :
“First: Cases to be designated and hereinafter referred to as cases of the first class, which shall include (a) all actions on contracts, express or implied, whether implied in law or implied in fact, when the amount claimed by plaintiff, exclusive of costs, exceeds one thousand dollars ($1,000).” (Italics ours.) The italicized portion of subdiv. a, as above set forth, was added by an amendment in 1931, the language of this subdivision otherwise remaining unchanged.

In Chudnovski v. Eckels, 232 Ill. 312, decided in 1908, where the jurisdiction of the municipal court was questioned in an action brought by a passenger against a carrier for a breach of its implied contract of carriage, resulting in personal injuries to such passenger, and the amount of damages claimed exceeded $1,000, the Supreme Court declared that under subdiv. a, clause 1, sec. 2 of the Municipal Court Act “the Municipal court rightly held that the act conferred jurisdiction of this action.”

In Kellar v. Industrial Commission, 350 Ill. 390, in passing upon this question, the court said at p. 398:

“In Chudnovski v. Eckels, 232 Ill. 312, it was held that the law presumes or implies a contract from the fact of receiving as a common carrier a passenger to carry for hire, and cases were cited from many jurisdictions recognizing the existence of a contract between carrier and passenger from the mere fact of the relation. The Chudnovski case sustains the jurisdiction in the municipal court of an action by a passenger for personal injuries under clause 1 of section 2 of the Municipal Court act, giving that court jurisdiction of all actions on contracts, express or implied, when the amount claimed by plaintiff exceeds $1,000, against a street railway company for breach of the implied contract arising from the plaintiff having got on the street car and paid the sum of five cents, the fare demanded.”

Even though plaintiff designated her original statement of claim as being in tort, in our opinion, the allegations of fact contained therein were sufficient to support an action for breach of defendant’s implied contract of carriage with claimed damages in excess of $1,000. In the municipal court it is necessary to state only facts which will sustain the cause of action without alleging the fiction of a promise implied by law. To remove any possible doubt on this subject the municipal court incorporated in its rules of practice as Rule 1 of section 12, the following:

“Rule 1. An erroneous classification of an action shall not affect the validity of an order or judgment therein which is permissible under the facts alleged in the pleading.”

In conformity with subdivision a of clause 1 of section 2 of the Municipal Court Act and with the decisions of our Supreme Court construing same, the following note, which has the same force and effect as a rule, is appended to the aforesaid rule:

“Note to Rule 1. The provision in relation to erroneous classification is designed to cover not only cases where there is a plain misdescription of the character of the action, as, for instance, where it is classified as ‘Contract’ when it should have been classified as ‘Tort,’ or otherwise, but also cases where the facts are sufficient to support both a contract and a tort liability. Thus, for example, an action brought by a plaintiff against a common carrier for a personal injury through the carrier’s negligence while the plaintiff was being carried as a passenger for hire, may be sustained as either a contract or a toil action, and a judgment therein in excess of $1,000 may be sustained though the action is classified as a tort action. The same result would follow in any action for a personal injury where a contract relation existed between the parties.” (Italics ours.)

In the light, of the pertinent provisions of the Municipal Court Act and the rules of that court adopted in furtherance thereof, and in view of the fact that the Supreme Court has clearly and unequivocally held that subdiv. a of clause 1 of section 2 of the act confers jurisdiction on the municipal court of a first class action for personal injuries brought by a passenger against a common carrier for hire, the amount of damages claimed being in excess of $1,000, on the theory that an implied contract exists between the parties, it is difficult to understand why plaintiff’s right to bring this action or the court’s jurisdiction to try it was questioned.

Inasmuch as the trial court erred in dismissing this cause for want of jurisdiction, the judgment order dismissing same at plaintiff’s costs is reversed and the cause is remanded with directions to vacate and set aside such order of dismissal and judgment and for further proceedings not inconsistent with the views expressed herein.

Reversed and remanded with directions.

Scanlan, P. J., and Friend, J., concur.


text:
    Toni Nierodzinski, Appellant, v. City of Chicago, Appellee.
    Gen. No. 38,402.
    Opinion filed April 7, 1936.
    O’Connor & Conroy, of Chicago, for appellant; Vincent H. O’Connor, of counsel.
    Barnet Hodes, Corporation Counsel, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

Plaintiff brought an action of the first class in the municipal court on September 15, 1928, against the City of Chicago to recover damages of $3,000 alleged to have been caused to his motor truck on May 17, 1928, by reason of defendant’s negligence in failing to keep the West Chicago avenue bridge in proper repair.

April 16, 1935, defendant moved to strike plaintiff’s amended statement of claim and to dismiss his action on the ground that the municipal court was without jurisdiction because the claim was in tort for damage to personal property alleged to be in excess of $1,000. The court allowed defendant’s motion. This appeal followed.

The City of Chicago filed no brief in this cause and we can attribute its failure to do so to no other reason than its realization and recognition of the fact that the trial court erred in sustaining its motion. It would have been more in keeping with the proprieties of the situation for the city to have confessed the error and thus spared the time of this court.

The court entered the following draft order, sustaining defendant’s motion.

“This cause coming on to be heard upon the written motion of defendant, City of Chicago, a municipal corporation, heretofore filed herein and continued and set for hearing for today, May 10th, 1935, to dismiss the above entitled suit on the theory that said suit is in tort for damages to personal property in excess of One Thousand Dollars ($1,000.00) and that the court is therefore without jurisdiction because plaintiff’s claim as set forth in said suit does not come within any of the provisions of Paragraph One (1) of Section Two (2) of the Municipal Court Act of the City of Chicago, which is Section 390 of Chapter 37 of Cahill’s Illinois Revised Statutes, and in force and effect at the time of the filing of said suit.

“And the court having heard the arguments of counsel for the respective parties to said suit in support of and in opposition to said motion, the court finds that it is without jurisdiction of said suit for the reason that the claim set forth in said suit is in tort for damages to personal property in excess of One Thousand Dollars ($1,000.00) and does not come within any of the provisions of Paragraph One (1) of Section (2) of the Municipal Court Act of the City of Chicago, which is Section 390 of Chapter 37 of Cahill’s Illinois Revised Statutes, and in force and effect at the time of the filing of said suit; therefore said motion of defendant as to this point is hereby sustained and said suit is dismissed at plaintiff’s costs.”

The only question involved in this appeal is whether the municipal court of Chicago has jurisdiction of an action in tort for the recovery of damages to personal property when the amount of damages sought to be recovered, exclusive of costs, exceeds $1,000. Subsec. 1, sec. 2, par. 390, ch. 37, Cahill’s Illinois Revised Statutes, 1927, which was in force and effect when this suit was filed September 15, 1928, provides as follows:

“That said Municipal Court shall have jurisdiction in the following cases:

“First. Cases to be designated and hereinafter referred to as cases of the first class, which shall include (a) all actions on contracts, express or implied, when the amount claimed by the plaintiff, exclusive of costs, exceeds one thousand dollars ($1,000); (b) all actions for the recovery of personal property when the value of the property sought to be recovered as claimed by the plaintiff exceeds one thousand dollars ($1,000); and (c) all actions for the recovery of damages for the conversion of personal property, and actions for recovery of damages for injuries to personal property, when the amount of damages sought to he recovered, as claimed hy the plaintiff, exclusive of costs, exceeds one thousand dollars ($1,000).” (Italics ours.)

No case has been cited and a diligent search has failed to reveal one where our Supreme Court or this court has been called upon to pass directly upon the precise question presented for our determination. We fail, however, to note any ambiguity or uncertainty in the language of the italicized portion of the statute as above set forth that calls for judicial construction. The language used appears to be as clear and understandable as plain English words could make it. Reference to authorities could hardly make clearer that which on its face is perfectly clear. Subdiv. c, after placing within the classification of cases of the first class “all actions for the recovery of damages for the conversion of personal property . . . when the amount of damages sought to be recovered as claimed by the plaintiff, exclusive of costs, exceeds $1,000,” includes in the same category “all actions for the recovery of damages for injuries to personal property” where the amount of damages sought to be recovered, as claimed by the plaintiff, exclusive of costs, exceeds $1,000. Thus two separate and distinct classes of actions unrelated in character are covered by subdiv. c. It cannot be reasonably urged that “actions for the recovery of damages for injuries to personal property” in excess of $1,000, exclusive of costs, means anything other than what it plainly says or that such language was inserted in the act to qualify the language immediately preceding it, concerning actions for the conversion of personal property. Actions for the conversion of personal property and actions for injuries to personal property perform distinctly separate functions and we see no reason for confusing the two classes of actions.

In O’Shea v. Farrelly, 302 Ill. 126, plaintiff, O’Shea, who was a stockholder in an Illinois corporation, filed a statutory action in the municipal court against Farrelly, claiming damages of $2,800 because of Farrelly’s refusal to permit him to examine the corporate books. O’Shea contended that his stock was personal property; that the violation of the statutory duty to permit him to examine the corporate books constituted damages to his personal property; and that jurisdiction of the case by the municipal court should be sustained on the ground that it is a suit for damages to personal property as provided in subdiv. c., subsec. 1, of sec. 2, of the Municipal Court Act. In that case the court said at pp., 127, 129, 130:

“The action in this case is based on section 38 of the general Corporation act. (Laws of 1919, p. 325.) ...
“It is suggested by appellee that a share of stock is personal property, and that the violation of the statutory duty to permit him to examine the books was a damage to his personal property, and that jurisdiction of this case should be sustained on the ground that it is a suit for damage to personal property. The argument seems to be that this action falls within those designated as first-class in division (c) of section 2. We are unable to see how we could possibly view this action as an action for the recovery of damages for injuries to personal property. The phrase, ‘damages for injuries to personal property’ has a very definite and well settled meaning as used in our law, and it means just what it says. To recover such damages there must be an actual injury to personal property of some kind. The denial of the right to examine books of a corporation is not a damage to personal property of any kind. It is the mere denial of a legal right given by the statute, and the amount of recovery allowed under this statute is not a recovery for any damage that appellee is supposed to have sustained in the denial of his right, but is in the nature of a penalty to deter subsequent violations of the same right.”

It clearly appears from the O’Shea case that the Supreme Court recognized the right to bring a first class action in the municipal court for damages in excess of $1,000 for injuries to personal property in a proper case. The language of the court “the phrase, ‘damages for injuries to personal property’ has a very definite and well settled meaning as used in our law, and it means just what it says,” leaves no room for doubt.

In Seney v. Knight, 292 Ill. 206, while the precise question was not before it, the court recognized the right to bring a first class action in the municipal court for the recovery of damages for injuries to personal property in excess of $1,000, when, in enumerating the cases that came within the first class designation, it used this language at p. 209:

“The municipal court has jurisdiction in the following cases of the first class: (a) All actions on contracts, express or implied; (b) all actions for the recovery of personal property; and (c) all actions for the recovery of damages for the conversion of or injuries to personal property when the amount involved in said cases exceeds $1,000: (Hurd’s Stat. 1917, p. 890.) ” (Italics ours.)

In our opinion plaintiff had the right to bring this action in the municipal court as the statute vested that court with full jurisdiction of actions of this nature.

The order of the municipal court sustaining defendant’s motion to strike plaintiff’s amended statement of claim and to dismiss his suit is reversed and the cause is remanded with directions to deny said motion of defendant.

Reversed and remanded with directions.

Scanlan, P. J., and Friend, J., concur.


author: Mr. Justice Dove

text:
    J. A. Johnson, Appellee, v. Country Life Insurance Company, Appellant.
    Gen. No. 8,985.

      Opinion filed April 3, 1936.
    Frank E. Maynard, of Rockford, for appellant.
    Shultz & Reid and Hall & Dusher, all of Rockford, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

John A. Johnson, as assignee of Claire Peterson, widow of Alfred Peterson, deceased, who was the beneficiary under a life insurance policy issued by Country Life Insurance Company, instituted this suit to recover upon a policy written by the company upon the life of the said Alfred Peterson. The issues made by the pleadings were submitted to a jury, which returned a verdict for the plaintiff for $3,215 upon which judgment was rendered and the record is in this court for review.

It appears from the record that on the 26th day of September, 1932, appellant issued the policy which forms the basis of this suit in the amount of $3,000, and it was stipulated upon the hearing that when the policy was issued the first quarterly premium was paid but the insured failed to pay the second quarterly premium due December 26,1932; that on January 26, 1933, decedent paid, and appellant accepted, $5.25 for 30 days’ extension of the days of grace period but made no further payment until August 31, 1933; that on February 26, 1933, the policy lapsed for failure to pay the premium and so remained until on or about August 30, 1933; that on August 22, 1933, the insured made an application to appellant company for reinstatement and on August 31, 1933, paid the back premium for one year and until the expiration of the first policy year which was September 26, 1933; that the policy provided for a grace period of 31 days; that by the payment of August 31,1933, the policy became effective to October 27, 1933; that on October 25, 1933, insured paid and appellant accepted the sum of $5.25 for an extension of 30 days’ grace, which carried the policy to November 27, 1933. It further appears that on November 4, 1933, the insured died and subsequently the beneficiary assigned, for a valuable consideration, all her right, title and interest in the policy to appellee.

On behalf of appellant, Dr. Palmer testified that he made a post mortem examination of the body of the insured, found a duodenal ulcer which in his opinion had been forming for six, eight or ten months, that he had no opinion whether the insured would have some pains by which he would have known of its presence and that from the examination he made he could not tell with any degree of medical accuracy the date or . time when the ulcer started.

Dr. Carlstrom testified that on September 1, 1933, he examined the insured for appellant and that he inquired of him if he was in good health and that the insured answered in the affirmative; that the insured told him that he had not seen any doctor recently; that he, the physician, palpitated and felt the insured’s stomach, talcing hold of it from the anterior surface and ran his fingers and thumb down into the soft part of the abdomen, but did not elicit any pain from the insured; that he also made a urinary analysis and as his examination disclosed nothing unfavorable and as the insured appeared to be in good health and stated that he was, he recommended him to the company.

Dr. Tenney testified that eight or nine years previous to‘the time of the death of the insured, he had treated him and that the only time since then was on August 17, 1933, when he was called to the home of the insured and found him sitting in a chair rather pale and that he, the insured, then complained of pains in his abdomen; that he made an examination and found some gas in the intestines and concluded that he, his patient, had eaten something which disturbed the function of the gall bladder; that the condition was temporary and that he never suspected or told him that he had a stomach ulcer. Several lay witnesses testified that in the middle of the summer and in the latter part of August, 1933, the insured had stated to them that he did not feel good or that he felt weak or that he was not well. Other lay witnesses testified that they had seen the insured almost every day for years preceding his death, working in his restaurant or on his chicken farm, and that he never complained of ill health, was of a jovial disposition and always appeared to be in good health before and after the policy was reinstated. One of these witnesses was the special agent of appellant who secured the insured’s application for the policy sued on and who also secured from him the application for reinstatement and this witness was, at the time of the trial, employed by appellant as its agent.

Dr. Edward Weld testified that he examined microscopically a section of the ulcer taken from the body of the insured and that it appeared to him to have all the earmarks of a chronic ulcer; that as a general rule an ulcer of that character is of long standing and that in his opinion such an ulcer would cause distress and trouble and affect the general health from one month to ten years or perhaps longer; that in the opinion of this witness, the insured was suffering from a duodenal ulcer on August 17, 1933, and that the symptoms which Dr. Tenney found on that day were caused by the presence of such an ulcer and this physician was of the opinion that .the insured, on August 22, 1933, was not in good health. This witness further testified that chronic ulcer is of gradual development and that a patient suffering therefrom has periods of remission, getting better and then getting worse.

It further appears from the evidence that the application for reinstatement of the policy is dated August 22, 1933, and was signed by the insured. In addition to stating that it was such an application, it consisted of a series of questions such as the date of the insured’s birth, whether married or single, his present occupation, whether he had suffered any injury or disease since the date of his last examination for insurance, whether any of his immediate relatives or household had died or were then afflicted with tuberculosis, whether he used beer, wine or intoxicants, whether he had any impairment-of his sight or hearing, whether he was crippled, deformed or disabled and finally question number 11: “Are you at this date in good health ? ” To which the insured answered “ Yes. ” Following this and above the applicant’s signature is the following: “I hereby declare that all the statements and answers to the above questions are complete and true and I agree that they shall constitute an addition to and a part of the application . . . for insurance under the above numbered policy, that they shall be subject to all the conditions and agreements contained in said application . . . and that they shall be the basis for any action taken by the company on this application. ’ ’

The evidence further discloses that the policy sued on contains the following clauses: “Grace Period. Thirty-one days of grace without interest charges shall be allowed in the payment of any premium after the first, during which time this policy shall remain in force. Incontestability. This policy shall be incontestable after it shall have been in force, during the lifetime of the insured, for one year from date of issue, except for non-payment of premium. Reinstatement. Should this policy lapse, it may be reinstated at any time upon the insured furnishing evidence of insurability satisfactory to the company and paying all premium arrears with not exceeding six per cent (6%) interest per annum, and paying or reinstating any indebtedness which existed at the time of lapse, with interest. Entire Contract. This policy and the application therefor, a copy of which is attached hereto and made a part hereof, constitute the entire contract. In the absence of fraud, the statements made in the application shall be deemed representations and not warranties, and no such statement shall void this policy unless it is contained in the written application.”

It is first contended by counsel for appellant that the statement testified to by Dr. Carlstrom to the effect that the insured had stated to him at the time he examined him in August, 1933, upon his application for reinstatement that he, the insured, had not seen any physician recently and his further answer in the application for reinstatement that he was at that time in good health were untrue; that had the answers been otherwise, appellant would not have reinstated the policy and as they were material to the risk the policy is void. In this connection counsel calls our attention to that portion of the court’s instruction which told the jury that before a false statement would defeat a recovery, appellant was required to prove that the statements were untrue, that the insured knew them to be untrue and that he did so with intent to deceive the company.

An examination°of the application for reinstatement discloses that it does not contain any question as to whether the insured had consulted any physician since the examination, when the policy was issued so, under the provisions of the policy, no oral answer which the insured may have made to the physician to any questions propounded by him and not included in the written application for reinstatement can form any basis for a claim of misrepresentation. Joseph v. New York Life Ins. Co., 308 Ill. 93. The only portion of the application for reinstatement which refers to an examination by a physician is embraced in a question to be answered by a female applicant over 15 years of age, and these questions were left unanswered, as they obviously did not apply to the applicant for reinstatement of this policy. The only statement in the application for reinstatement which appellant can therefore rely upon as fraudulent and untrue is the answer of the insured to the eleventh question, wherein the applicant stated he was then in good health. The application for reinstatement also provided that all statements and answers should constitute an addition to and part of the original application for insurance and subject to all the conditions and agreements contained in said application, and the policy expressly provided that such statements were to be deemed representations and not warranties and no such statement would void the policy unless contained in the written application. In our opinion the application for reinstatement is not a contract separate and distinct from the policy itself, but by express agreement of appellant and insured it constituted an addition to and a part of the original application and became subject to the conditions and agreements contained therein and that original application, together with the application for reinstatement and the policy constitute the entire contract of the parties. Under the authorities and the pleadings in the instant case, the" burden was cast upon appellant to prove that the insured at the time he executed the application for reinstatement was not in good health, and that insured knew at that time he was not in good health. Crawford v. Lincoln Life Ins. Co., 278 Ill. App. 576, and cases there cited.

Counsel for appellant insist that the verdict of the jury is the result of passion and prejudice and that it is manifestly against the weight of the evidence. We have set forth in this opinion substantially all the evidence found in this record. When appellant’s physician examined the insured prior to the issuance of the policy, his physical condition was found acceptable to the company and when he again examined him on September 1, 1933, he made a urinary analysis, palpitated his stomach and the insured submitted to such tests as the company required and he again recommended him to the company. Less than two weeks before that date Dr. Tenney had been called, but he testified that he never suspected that the insured was suffering from anything more than a temporary abdominal distress and so far as the record discloses the insured never after that time was attended by a physician. In addition to the general verdict which was returned, a special interrogatory was, at the request of appellant, submitted to the jury. This special interrogatory was as follows: “Do the jury find, as a matter of fact, that Alfred Peterson, now deceased, was not in good health on August 22, 1933, and that he then answered question number eleven in the personal certificate of health, Defendant’s Exhibit 3, in this case, to-wit: ‘11. Are you at this date in good health? Answer: Yes,’ knowing the answer to be false, for the purpose of inducing the defendant Insurance Company to issue the policy sued upon?” The jury answered this interrogatory in the negative and from a consideration of all the evidence in this record, we are unable to say that these verdicts were the result of passion or prejudice nor do we think they are manifestly against the weight of the evidence.

The trial court sustained a motion of the plaintiff below and eliminated from appellant’s amended answer a portion thereof. The stricken portion alleged that the insured had made false and fraudulent statements in his original application for the policy. Appellant insisted in the lower court and contends here'that when the policy lapsed on February 26, 1933, and remained lapsed until August 30, 1933, for nonpayment of premiums, that the incontestable clause was tolled for that period and that when the insured paid up his premium and the policy was reinstated that in construing the incontestable clause, the time during which the policy lapsed should not be included. In support of this contention, appellant calls our attention to Pacific Mut. Life Ins. Co. v. Galbraith, 115 Tenn. 471, 91 S. W. 204; Teeter v. United Life Ins. Ass’n, 159 N. Y. 411, and McCormack v. Security Mut. Life Ins. Co., 220 N. Y. 447. In the Galbraith case, it was held that during the period when the policy had lapsed because of the failure of the insured to pay the premiums as provided in the policy, the former owner of the policy had no legal or equitable claim on the company ; that when it was reinstated, then the policy became a new contract “as if the policy then was for the first time issued” and it must operate in the future from the date of its reinstatement and the incontestable clause would begin its new life from the date of the new contract. The court further held that if the assured obtained the reinstatement by fraud or by false warranties material to the risk, during the period reserved for contest, that then the company should be allowed to protect itself against such unfair dealing. In Teeter v. United Life Ass’n, supra, a policy, containing a two-year limitation clause, lapsed and was reinstated. The death of the assured occurred more than four years after the policy was reinstated. The company resisted payment upon the ground that the statement contained in the reinstatement application was false. The court held that under the provisions of the policy the company had two years after the reinstatement within which to investigate the condition of Teeter’s health at the time of the making of the reinstatement certificate and that after that time the policy became indisputable. In McCormack v. Security Mut. Life Ins. Co., supra, it appeared that the policy was issued in 1901, lapsed on January 11, 1911, was rein: stated on or about February 23, 1911, and on January 1, 1912, the assured died. The policy contained a one-year incontestable clause. The court cited the Teeter case, supra, stating that there is authority for the proposition that a reinstated policy is to be viewed as a new contract and that it is incontestable for fraud or breach of warranty in the application for reinstatement after it has been in force as reinstated for a year. In the McCormack case the application for reinstatement warranted that the assured was in good health. The court of appeals approved the finding of the trial judge to the effect that the statement in the application for reinstatement that the assured was in good health was false, known by the assured to be false and was made for the purpose of deceiving the company and thereby procuring the reinstatement of the policy.

In Monahan v. Fidelity Mut. Life Ins. Co., 242 Ill. 488, it appeared that the policy sued on was dated September 30, 1903, and contained a clause providing that if the policy shall have been in continuous force after two years from its date, it should he incontestable except for nonpayment of premium. The insured died October 19, 1905. It was urged that the policy did not remain continuously in force but became forfeited by reason of the failure of the insured to pay the premium due September 30, 1904. It appeared, however, that the policy was reinstated on October 1, 1904, the premium due September 30, 1904, being paid on October 1, 1904. In overruling this contention, the court said: “We cannot accede to this proposition. While the payment was due on September 30, 1904, the company-could waive payment of a premium on that day and accept the premium on the next day if it saw fit, and if it did waive the payment on the 30th day of September and accepted it on October 1, 1904, there was no forfeiture and there was no new contract made between the parties, but the old policy remained in force, and whatever provisions were found in the policy, including the. incontestable clause, would control in determining the legal effect of the policy.” The court then cited with approval Lindsey v. Western Mut. Aid Society, 84 Iowa 734; Goodwin v. Provident Savings Life Assurance Ass’n, 97 Iowa 226, and Massachusetts Life Ass’n v. Robinson, 104 Ga. 256, and commented upon the fact that the cases of Pacific Mut. Life Ins. Co. v. Galbraith, supra, and Teeter v. United Life Ins. Ass’n, supra, announce a different rule. “We are of the opinion, however,” continued the court in the Monahan case, “that the true rule, and the one most in consonance with the decisions of this court, is announced in Lindsay v. Mutual Aid Society, Goodwin v. Provident Savings Life Assurance Ass’n and Massachusetts Life Ass’n v. Robinson, heretofore cited. We think therefore that the policy was in force continuously for two years from its date. ’ ’

In a note to the case of Gans v. Aetna Life Ins. Co., a New York case (214 N. Y. 326) reported in L. R. A. 1915 F 703, it is stated that the cases are not in harmony upon the question whether a new contract is created by the reinstatement of the original policy so that the incontestable period is computable from the date of the reinstatement or from the date of the policy and the cases of Pacific Mut. Life Ins. Co. v. Galbraith, supra; Teeter v. United Life Ins. Ass’n, supra; Ash v. Fidelity Mut. Life Ass’n, 26 Tex. Civ. App. 501; Monahan v. Fidelity Mut. Life Ins. Co., supra, and Goodwin v. Provident Savings Life Assurance Ass’n, supra, are all referred to.

In Mutual Life Ins. Co. v. Lovejoy, 201 Ala. 337, 78 So. 299, L. R. A. 1918 D 860, it appeared that the policy was issued March 2, 1912. Two years later the policy lapsed for nonpayment of premium. On March 14, 1914, the insured made application for reinstatement, was examined by a physician and paid the past due premiums with interest. The premiums were accepted, the application approved and the policy reinstated. On August 25, 1914, the insured died. The policy provided that it should be incontestable except for nonpayment of premiums provided two years shall have elapsed from its date of issue. It was contended by the company that upon being reinstated, the policy became a new contract and that the incontestable clause should read as if from the date of the reinstatement and not the date of the original policy. In declining to so hold, the court stated that their attention had been called to the case of Pacific Mut. Life Ins. Co. v. Galbraith, supra, which supports that view but that the authorities were in conflict and the Galbraith case was not in harmony with the proper rule for the construction of insurance contracts and refused to follow that case.

In Business Men’s Assur. Co. v. Scott, 17 F. (2d) 4, it appeared that the defendant had issued an accident policy on October 30, 1920, by the provisions of which it agreed to pay the beneficiary named therein a stated sum in the event the insured lost his life as a result of injuries caused exclusively by accidental means. Premiums were due August 1st in each year. The policy lapsed for failure to pay the premium due on August 1, 1923, but was reinstated on August 20, 1923, by the insured paying the premium and the company accepting it and this payment continued the policy in force and while the policy was in force the insured shot himself while insane, which the courts of Colorado had held was an accident within the meaning of the policy under the statutes of that State. The statute of Colorado also provided that suicide of a policyholder after the first policy year should not be a defense and the company contended that inasmuch as the insured’s death occurred within one year from the reinstatement of the policy, the company was not precluded from setting up the defense of suicide as the reinstatement was not a restoration of the old policy but a new contract. The Circuit Court of Appeals, however, held otherwise, stating that they were unable to agree with such contention; that the payment of the premium after the due date did not create a new contract of insurance, but had the effect simply of restoring the old contract. “The only condition,” said the court in its opinion, “was that the company would not be liable for any accident occurring between the due date of the premium and the time it was paid. The insurer was in no better position to defend than it would have been had the suicide occurred prior to the failure to pay the premium and after the lapse of the first policy year.”

In New York Life Ins. Co. v. Buchberg, 249 Mich. 317, 228 N. W. 770, the court said: “The reinstatement of a policy is not a new contract of insurance, nor is it the issuance of a policy of insurance: but rather it is a contract by virtue of which the policy already issued, under the conditions prescribed therein, is revived or restored after its lapse.”

“A reinstatement of the policy, after default in the payment of premiums, by performance of conditions specified in the policy continues in force the original policy and does not create a new one. ” 32 C. J. 1357. Of course the company may avoid the effect of a reinstatement by showing that it was procured by fraud or unfair means or by material false representations or warranties. 32 C. J. 1357. In Alper v. New York Life Ins. Co., 41 F. (2d) 956, it was said that the incontestable clause of the restored contract is no part of the contract for the restoration of the policy and the new contract for the reinstatement of the policy is subject to be attacked for fraud.

In 37 C. J. 495, sec. 237, it is said by the author of the text on Life Insurance that under provisions of the original contract of insurance the insurer may be entitled on such conditions as are imposed therein to the restoration of the policy, which after such restoration, continues to be the contract of the parties as before and on page 496, sec. 239, the same author states that the original contract of insurance frequently specifies the term or conditions on which reinstatement may be had, invariably requiring the payment of overdue premiums and usually requiring the insured to furnish evidence of present insurability or (as stated in sec. 240 at page 498) of good or sound health at the time the reinstatement is sought. The same author on page 501, sec. 243, states that the insurer may avoid the effect of a reinstatement obtained by fraud or false warranties or material false statements in the application for reinstatement. Thus false warranties or false or fraudulent statements as to the health of the insured may be a ground for avoiding the reinstatement. “While in general,” says the author on page 502, “statements in an application for reinstatement or a certificate of health furnished to procure reinstatement are regarded as warranties to the same extent as when made in connection with an original contract of insurance, .answers bearing on the health of the insured contained in an application for reinstatement have been construed as representations and not warranties where it appears that they are not necessarily to be taken as literally true notwithstanding such answers are in the form of warranties. . . . Ordinarily a statement in the application as to the health of the insured is not a warranty of absolute good health or freedom from any bodily ailment, but is construed as meaning only that the state of health is practically the same as when the policy was issued and the words ‘sound’ or ‘good’ health have been construed to mean that insured is free from any disease or illness of which he is conscious, that tends seriously or permanently to weaken or impair his constitution. . . . It is usually held that a reinstatement of the policy after default in the payment of premiums by performance of. conditions specified in the policy continues in force the original policy and does not create a new one, and the reinstatement of the policy does not revive and render operative as of the date of reinstatement a provision of the original policy for nonliability in the event of insured’s suicide within a specified period from the date of issue of the policy.” Citing New York Mutual Life Ins. Co. v. Lovejoy, supra. The same author, at page 541, sec. 278, says: “The incontestable clause has been held to be applicable to representations in a certificate for reinstatement. In some jurisdictions it has been held that a reinstated policy should be viewed as a new contract and that it is incontestable for fraud or breach of warranty in the application for reinstatement after it has been in force for the stipulated period, dating from the time of reinstatement. . . . But in other jurisdictions it has been held that the reinstatement is not the making of a new contract, but the continuation of the old, and that the period of incontestability runs from the date of the original contract, as in the case of a reinstatement after default in payment of premiums.” In support of the last statement, the author, cites cases from Alabama, Georgia, Texas and the Illinois case of Monahan v. Fidelity Mut. Life Ins. Co., supra.

While it is true, as contended by counsel for appellant, the Monahan case turned upon the question of waiver, yet we are inclined to the opinion that our Supreme Court is committed to the doctrine announced by those cases which it there cited with approval to the effect that the reinstatement of an insurance policy is not the making of a new contract, and that when reinstated the incontestable period runs from the date it was originally written. There was therefore no error committed by the trial court in striking from appellant’s amended answer those portions thereof which alleged that the insured had made false and fraudulent statements in his original application for the policy. In the instant case no new or different terms were agreed upon and no new or different policy was issued. The company continued to recognize that the original policy was the valid and existing contract between the parties. All that the company did was to cancel a forfeiture resulting from a failure of the insured to pay the premiums when due. The policy provided that it could be reinstated at any time after it lapsed upon the insured furnishing evidence of insurability satisfactory to the company and by paying all premiums in arrears with interest. When those premiums which were in arrears were paid and the insured furnished the company with evidence of insurability satisfactory to the company which consisted of a written application dated August 22, 1933, signed by the insured and witnessed by the soliciting agent of appellant, a medical report dated September 1, 1933, signed by the insured and witnessed by Dr. Carlstrom and the physical examination of the insured made by Dr. Carlstrom, then the policy was reinstated as of the date it was originally written and as the incontestable period had elapsed prior to the death of the insured, the company will not be permitted to defend on the ground that false or fraudulent statements were made in the original application for insurance. Appellant, however, was not precluded by the trial court from contesting the validity of the reinstatement application and in our opinion the issues with reference to the alleged false and fraudulent statements in that application were properly submitted to the jury under proper instructions of the court.

Whether or not the insured was in good health at the time he was reinstated was a question of fact for the jury. In Johnson v. Modern Woodmen of America, 160 Ill. App. 37, it appeared that the by-laws provided for the suspension of a member for nonpayment of assessments and for the reinstatement of a suspended member upon payment of all arrearages, provided he was then in good health. In its opinion the court cited Court of Honor v. Dinger, 221 Ill. 176, and said that the term “good health” is a comparative expression and that if a person enjoys such health and strength as to justify a reasonable belief, on the part of himself and others, that he is free from organic trouble or from symptoms calculated to cause a reasonable apprehension of such derangement, and if to ordinary observers and outward appearance- his health is reasonably such that he might, with ordinary safety, be insured, the requirement of good health is satisfied. In 40 A. L. R. 662, there is an annotation upon this question and a supplementary one in 100 A. L. R. 362, and it is there stated that the courts have made no distinction in respect to the meaning of the terms “good health” or “sound health” as used in connection with the reinstatement of a policy and their use with reference to the date of the policy; and that the term means that the applicant has no grave, important or serious disease, and is free from any ailment that seriously affects the good soundness or healthfulness of the system and that mere temporary indisposition which does not tend to weaken or undermine the constitution at the date of the policy does not render the policy void.

The annotation in 100 A. L. R. follows the report of the case of National Life & Accident Ins. Co. v. Wicker, 171 Okla. 241. In the course of its opinion, the Supreme Court of Oklahoma quoted from the case of Mid-Continent Life Ins. Co. v. House, 156 Okla. 285, where the court said: “The phrase ‘good health’ as used in its common and ordinary sense by a person speaking of his own condition undoubtedly implies a state of health unimpaired by any serious malady of which the person himself is conscious. He does not mean that he has no latent disease of which he is wholly unconscious” and “Good health means apparent good health without any ostensible or known or felt symptoms of disorder and does not exclude the existence of latent unknown defects. . . . If by the phrase good health an insurance company desires to exclude every disease, though latent and unknown, it must do so by distinct and unmistakable language.” In Priest v. Kansas City Life Ins. Co., 116 Kan. 421, the court said: “The policy contained the same provision that it should not take effect unless the applicant is in good health at the time of its delivery. We do not interpret this to mean that no contract of insurance results if the insured at the time he made his application suffered from an ailment of which he was not conscious and which still existed when he received the policy. Where, without misrepresentation on the part of the applicant, an insurance company after due investigation accepts the risk, and a post mortem examination reveals that the seeds of a fatal disease existed before the acceptance, the clause referred to will not avail to defeat the collection of the policy.” We are not unmindful that the courts are in conflict as to whether this term, good health, when used as a condition precedent or as a warranty means actual or apparent good health. In Sulski v. Metropolitan Life Ins. Co., 196 Ill. App. 76, affirmed in 274 Ill. 516, the court quoted with approval from the case of Murphy v. Metropolitan Life Ins. Co., 106 Minn. 112, as follows: The defense is based upon the express provision of the policy, that no obligation is assumed by the defendant company, unless on the date of the policy the assured is alive and in sound health. It is clear from the language of the policy, that the defendant’s promise of insurance was not absolute but conditional, and that the existence of life and sound health in the insured on the date of the policy is the condition upon which the promise is made. It is the fact of the sound health of the insured which determines the liability of the defendant, not his apparent health, or his or any one’s opinion or belief that he was in sound health. Therefore, if the insured was not in fact in sound health on the date of the policy, the defendant is not liable, unless it has waived the defense.” Funkhouser v. Illinois Bankers Life Ass’n, 237 Ill. App. 95, is to the same effect. In the instant case the question, “Are you at this date in good health?” and the answer, “Yes” appear in the application for reinstatement and by the express terms of the policy the answer is a representation and not a condition precedent nor a warranty and it is therefore unnecessary for this court to determine whether the actual sound health test rule or the apparent sound health test rule is the correct one to apply in this State.

Appellant further contends that the trial court erred in refusing to submit to the jury another special interrogatory, viz.: “Do the jury find, as a matter of fact, that Alfred Peterson, now deceased, was ill and suffering from ulcer of the stomach on August 22, 1933!” If this interrogatory had been given and the jury had answered it, their answer would not have been controlling and it was therefore not error to refuse it. It is further insisted that the trial court erred in refusing to admit in evidence a written statement prepared by an insurance investigator and signed by the beneficiary. Appellant called the beneficiary as a witness. She examined the statement, identified her signature and testified that she was in bed with a nervous breakdown when the statement was signed; that the portion of the statement which said that she stated that the insured had complained of stomach aches at different times for the past two or' three years was not true, and that she desired to repudiate that portion of the statement. Other matters contained in the statement were testified to by her and as the jury was fully informed of the contents of said statement, we do not think reversible error was committed by the court in refusing its admission.

The judgment of the circuit court is affirmed.

Judgment affirmed.