author: Mr. Justice Denis E. Sullivan

text:
    Thomas H. McNeill et al., Appellees, v. Harrison and Sons, Inc., Appellant.
    Gen. No. 38,678.

      Opinion filed June 22, 1936.
    Rehearing denied July 6, 1936.
    Alexander Rothstein, of Chicago, for appellant.
    Defress, Buckingham, Jones & Hoffman, of Chicago, for appellees; Kenneth M. Fiske and Chas. O. Butler, both of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This cause comes to this court on an appeal by the defendant, Harrison & Sons, Inc., from a judgment non obstante veredicto entered in the municipal court in favor of the plaintiffs, Thomas II. McNeill et al.

On September 5,1935, a judgment by confession was entered against defendant under a lease entered into between plaintiffs and the defendant for rent for the months of August and September, 1935, at $107.50 per month, and also included $39.75 allowed as attorney’s fees, making a total of $254.75 and costs. The statement of claim and cognovit on the lease was filed September 4, 1935.

Plaintiffs’ statement of claim sets forth that the lease entered into with defendant was dated March 25, 1933, plaintiffs being the lessors and defendant the lessee for the premises therein described, for the term beginning May 1, 1933, and ending December 31, 1935, for a total rental of $3,440, payable in equal monthly instalments of $107.50 each; that the sum of $215 became due and payable for the months of August and September, 1935, and judgment by confession was entered for $254.75 and costs, including as part of the judgment the sum of $39.75 as attorney’s fees.

Thereafter on September 16, 1935, the defendant filed a petition to vacate the judgment by confession, stating that it had a good defense to the whole of plaintiffs ’ demand.

On the same day the court ordered that the judgment be opened and that the defendant be given leave to appear and defend and granting* a jury trial.

On October 2, 1935, the jury returned a verdict finding for the defendant and against the plaintiffs, upon which finding the court entered, a judgment and costs against the plaintiffs and that the judgment by confession of September 5, 1935, be set aside.

On October 7, 1935, plaintiffs ’ - motion was filed to vacate and set aside the verdict of the jury in favor of defendant and asked for a new trial, and on the same date plaintiffs filed a motion for judgment non ob-stante veredicto.

On October 11th, on the hearing of the petition of the plaintiffs a judgment order was entered by the court that the motion of the plaintiffs for judgment non ob-stante veredicto be sustained; that the judgment by confession of September 5,1935, against the defendant for $254.75 be confirmed.

Plaintiffs’ theory of the case is that the oral cancellation and surrender of the lease was never executed and that the evidence introduced by the defendant attempted to show an alteration or variation of the terms of the lease and was therefore inadmissible.

Defendant’s theory of the case is that there was an oral agreement between the plaintiffs and the defendant that the lease was to be canceled as of July 31,1935, provided the defendant procured a responsible and satisfactory tenant for the plaintiffs; that the defendant did procure responsible and satisfactory tenants in the persons of Stern and Harris and that they were responsible and satisfactory tenants is proven by the testimony of all witnesses, including that of the plaintiff, Thomas H. McNeill himself and by the further fact that plaintiffs executed leases with Stern and Harris; that by procuring these tenants and surrendering the premises on or before July 31,1935, the defendant fulfilled its part of the oral agreement for the cancellation and surrender of the lease.

Defendant further contends that the plaintiffs are estopped from denying the cancellation of the lease by the conduct of Thomas H. McNeill, who permitted the defendant to execute and become obligated under another lease in reliance upon McNeill’s statements that the lease between the plaintiffs and the defendant would be canceled.

The evidence in this case tends to show that the lease expired according to its terms in January, 1936. Harrison of the defendant corporation, appellant here, desiring larger space than the premises the corporation occupied, went to McNeill, representing the plaintiffs, and negotiations were had for the cancellation of the lease for the balance of the term provided the defendant would procure another tenant for the space occupied by the defendant corporation, who would be acceptable to the plaintiffs. Pursuant to this agreement Harrison procured Messrs. Stern and Harris as prospective tenants and took them to McNeill.

The evidence on behalf of defendant further shows that after an interview between Harrison, Stern, Harris and McNeill, the latter expressed himself as very well satisfied with the prospective tenants, Harris and Stern, whereupon the defendant Harrison stated that he would go out and look for another place for himself; that about July 22, 1935, Harrison saw McNeill and again asked him if he was accepting the boys, meaning Stern and Harris, and McNeill said, “Yes, come in Friday, I will have the leases ready and I will release you”; that on Friday, July 26th, Harrison again returned to McNeill’s office and Stern and Harris were there and Harrison asked if the leases were ready and if McNeill was satisfied “with the boys,” meaning Stern and Harris; that McNeill said the leases were not ready but to come back the following day and they would be ready; that Harrison asked for a release in writing, but that McNeill said, “Why should I give you in writing, isn’t my word good enough?”; that Harrison said, “All right, if you don’t want to give it to me in writing. All right”; that Harrison signed a lease for other quarters on Saturday; that on the same day he went to McNeill’s office, and that McNeill told him to wait for about a half hour while he talked with Stern and Harris again and that about a half hour later Mc-Neill came to his office and said that the deal was off.

The evidence further shows that Harrison moved on July 30th and left the key with McNeill’s brother in his office.

On behalf of plaintiffs, Thomas McNeill stated that he had a talk with Harrison about leasing the premises to Stern and Harris and releasing Harrison; that he told Harrison he would endeavor to negotiate a lease on his room with Stern and Harris; that he did not make a deal with Stern and Harris; that he told Harrison he would have to make a deal with Stern and Harris in regard to the machinery before he could talk with him definitely.

Both Stern and Harris testified that they were present at the time of the conversation between McNeill and Harris on and that McNeill had stated that he was satisfied with them as new tenants.

The evidence further shows that McNeill did make two leases with Stern and Harris, the tenants who were brought to him by Harrison, one lease was for a space known as Room 610, for the period from August 1, 1935, until December 31, 1935, at $107.50 per month. This lease was for the space for which he had refused $150 a month from Harrison. The other lease was for Room 616, which was the space which had been occupied by Harrison and it was dated to commence on January 1, 1936, at a rental of $107.50 per month.

The result of the transaction was that McNeill negotiated a lease with the tenants Stern and Harris for the larger space in his building at a reduced rental, keeping the room vacated by Harrison & Sons, Inc., ■vacant until the following January, when Stern and Harris took possession.

It is contended by plaintiffs that defendant could not vary the terms of a lease under seal by parol evidence; that the agreement between Harrison and McNeill, by which the lease was canceled before its expiration, was invalid. There is no doubt that the rule at common law is that a sealed executory contract cannot be altered, changed or modified by parol agreement, but that is not the position of the parties in this case. This rwas a surrender of the lease and a giving up of the premises and there is no question involved as to varying the terms of a contract under seal. As the Supreme Court said in the case of Alschuler v. Schiff, 164 Ill. 298, at page 302:

"There can no longer be any contention in this State over the general rule insisted upon by appellee, that a sealed executory contract cannot be altered, changed or modified by parol agreement. This rule of the common law has been adopted by this court and consistently followed in a long line of unbroken authorities. (Chapman v. McGrew, 20 Ill. 101; Hume Bros v. Taylor, 63 id. 43; Barnett v. Barnes, 73 id. 216; Loach v. Farnum, 90 id. 368; Goldsborough v. Gable, 140 id. 269.) ... A defendant might, by parol proof, show, in an action ag-ainst him on a contract or lease under seal, that he had made full payment of all amounts due, and thus was discharged. He might also, by parol testimony, show an eviction where there was no default by him in his lease, and thus a discharge. We know of no good reason why he may not also show, by parol proof, that by agreement between the landlord and. himself he has been released from the terms and obligations of the lease, a/nd has, in pursuance thereof, surrendered possession of the premises to the landlord. . . .

“We hold it to be the law of this State, that where it is not sought to alter or change the terms of a contract under seal, still leaving it in force, but where the object is to show that such instrument has been abrogated, canceled and surrendered, the question is one of fact for a jury, and evidence thereon is admissible. In the present case we do not pass upon or determine whether or not the evidence offered by defendant was sufficient to sustain his defense. That is not our province. We do hold, however, that such evidence tending to show a surrender and acceptance should have been submitted to the jury, and it was a question oL fact for the jury to determine if there was an executed agreement for the surrender of the lease. Williams v. Vanderbilt, 145 Ill. 238.”

The surrender of a lease need not be in writing nor by express terms. The parties to a lease without any express surrender may do some act which implies that they both have agreed to the surrender as made. Brewer v. National Union Bldg. Ass’n, 166 Ill. 221; 2 Taylor on Landlord and Tenant, secs. 507 and 515. It was sufficient if all the parties agreed that Stern and Harris should become the tenant of the plaintiffs and that they thereafter occupied the premises and were acknowledged by the plaintiffs to be their tenants. Jacob v. Mundell, 267 Ill. App. 160.

As to the motion for a judgment notwithstanding the verdict the statute and the rules of the municipal court provide that such motion must be entertained before judgment. Rule 175 of the municipal court reads as follows:

“In any civil action tried by jury, if either party shall, at the close of the testimony, and before the case is submitted to the jury, request the court for a directed verdict in his favor, the court shall reserve its decision thereon and submit the case to the jury under proper instructions as to the law applicable to the case. After the case is thus submitted to the jury, and after receiving and recording the verdict of the jury and before judgment is entered in the action, the court shall hear arguments of counsel for and against said request. If the court shall then decide, as a matter of law, that the party requesting the directed verdict was entitled thereto, the court shall enter its decision on the record and order judgment in accordance therewith notwithstanding the verdict entered, and the party against whom such judgment is entered shall have an exception to such action as a matter of course. If such request is denied an exception in favor of the party making such request shall follow as a matter of course. In either case such exception shall be presumed to have been taken unless the contrary expressly appears from the record.”

In the instant case, without vacating the first judgment in favor of the defendant and against the plaintiffs, the court entered another judgment in favor of the plaintiffs and against the defendant.

Under the common law, judgments of this kind were based upon the pleadings and were entered as matters of law and such motions could only be made by the plaintiff if the defense disclosed no reason why the plaintiff should not recover. Puterbaugh’s Common Law Pleading, section 1103.

The provision of the Civil Practice Act and the municipal court rule 175 changes the common law and permits either party to move the court for judgment notwithstanding the verdict, if done in compliance with the provisions thereof.

The court in passing upon the motion must decide whether, as a matter of law, the party requesting the directed verdict is entitled thereto. This provision of the Civil Practice Act and rule 175 of the municipal court must be taken in connection with rule 22 of the rules of practice of the Supreme Court which provides: “The power of the court to enter judgment notwithstanding the verdict may be exercised in all cases where, under the evidence in the case., it would have been the duty of the court to direct a verdict without submitting the case to the jury.” The statute and rules require the court to be governed by the same rules in passing upon a motion for a judgment notwithstanding the verdict as govern it in passing upon a motion for a directed verdict. The trial court in passing upon this motion has no more authority to weigh and determine controverted questions of fact under the Civil Practice Act than under the Practice Act of 1907. Illinois Tuberculosis Ass’n v. Springfield Marine Bank, 282 Ill. App. 14; Capelle v. Chicago & N. W. Ry. Co., 280 Ill. App. 471.

' If it were permissible for a trial judge on á motion non obstante veredicto to weigh the evidence and enter a judgment according to his opinion as to wherein lies the greater weight of the evidence, then the right to a trial by a jury would be done away with and the judgment of the court substituted therefor. It is only where there is no evidence as a matter of law to sustain either a plaintiff’s or a defendant’s claim that a judgment may be rendered notwithstanding the verdict.

In the instant case the evidence was conflicting and the court should not have substituted its judgment as to the weight of the evidence in place of the verdict of the jury.

It is next contended that the application of the doctrine of estoppel prevents the plaintiffs from recovery from the defendant. The evidence of the defendant that, relying upon the statement, of plaintiffs, he went out and leased other premises for the location of his factory is not denied.

The rule with relation to estoppel is well stated in the case of Bondy v. Samuels, 333 Ill. 535, on page 545, where the court said: ‘ ‘ The general rule is, that where a party by his statements and conduct leads another to do something* he would not have done but for such statements and conduct, the guilty party will not be allowed to deny his utterances or acts to the loss or damage of the other party. . . . Milligan v. Miller, 253 Ill. 511; Oliver v. Ross, 289 id. 624.”

At the conference on July 26th, when Stern and Harris were present and McNeill told Harrison they would execute the lease with Stern and Harris the following day and permitted Harrison to leave the conference believing that he would cancel the defendant’s lease, and so believing* Harrison executed a lease for other property, such acts on the part of McNeill would estop him from afterwards changing his position.

As the Supreme Court said in the case of Dodd v. Rotterman, 330 Ill. 362, at page 371: “Estoppel must be based upon some statement or conduct of the person claimed to be estopped by which the person claiming the estoppel has been misled and induced to do something which he would not have done but for the statement or conduct of the other and by which he has been damaged. ’ ’

We think the trial judge committed error in granting the motion non obstante veredicto and in substituting his judgment as to the weight of the evidence for that accorded to it by the verdict of the jury.

For the reasons herein given, the judgment of the municipal court entered upon the motion non obstante veredicto is hereby reversed and the judgment of October 2, 1935, in favor of defendant and against plaintiffs, which was entered upon the verdict of the jury, is hereby affirmed.

Judgment of October 2nd in favor of defendant affirmed; judgment non obstante veredicto reversed.

Hall, P. J., and Hebel, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Joseph P. Lewis et al., Appellees, v. West Side Trust and Savings Bank et al., Defendants. Frances S. Spoor, Appellant.
    Gen. No. 38,695.

      Opinion filed June 22, 1936.
    Allen G. Mills, of Chicago, for appellant.
    Gold & Liebman, of Chicago, for appellees.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This case comes to this court on an appeal from a judgment entered in the superior court for the sum of $12,400 against one of the defendants, Frances S. Spoor, and in favor of S. D. Tannebaum as receiver for the use and benefit of all creditors of the West Side Trust and Savings Bank of Chicago. The amount of the judgment was the full amount of the added constitutional liability of Frances S. Spoor as a stockholder in the West Side Trust and Savings Bank of Chicago.

A so-called special appearance of defendant was entered for the purpose of questioning the service of the summons by the process server. One Harold Cohen had by proper order been named to serve the summons on defendant. The return of said process server reads as follows:

“I have duly served the within summons upon each of the following within named defendants by leaving, on the date first set forth after his or her name, a true copy of the said summons at his or her usual place of abode with the person of his or her family of the age of ten years or upward whose name is set forth after the name of such defendant, at the same time informing said member of the family of the contents of the said summons; and I did also upon the date secondly set forth after each of said names when said summons was served send a copy of said summons, in a sealed envelope with postage fully prepaid, addressed to s.aid defendant at his or her usual place of abode:

Person with Date Date
Name Whom Left Served Mailed
Francis Spoor Jane Doe 10/5/34 10/11/34.”
(housemaid)

On November 3,1934, there was filed the appearance, motion and affidavit, of the said defendant, as follows:

“This defendant in her own proper person, appears especially and moves the court to quash service of process in this action as to herself upon the grounds that this defendant was not served with process in this action and that the return of the sheriff, or process server, upon the summons in this cause is false. - In support of said motion defendant attaches hereto her affidavit. ’ ’

“State of Illinois, } County of Cook, ^SS'

“Frances S. Spoor, being first duly sworn, says that she was not personally served with a summons in this cause, either by the sheriff of this county or by any other person authorized to serve process but states upon information and belief that the alleged service of summons was made in the following manner, viz.: by some unknown party calling at the residence of this defendant, in the absence of this defendant, and handing what purports to be a copy of a summons in this cause to a maid-servant who answered the door. This defendant further states,- of her own knowledge, that no service of the purported summons has been made at any time, upon this defendant, either by leaving a copy thereof with this defendant personally, or by leaving such copy at her usual place of abode, with some person of the family of the age of ten years or upwards, and informing such person of the contents thereof. This defendant states, of her own knowledge, that she has not been given an opportunity to examine the return of the summons by the sheriff, or the process server, due to-the sheriff’s or process server’s failure to return the summons within the time required by the Statutes of Illinois.

Frances S. Spoor.
‘1 Subscribed and sworn to before me, this 3rd day of November, A. D. 1934.
“ (Seal) Richard S. Bennett,
Notary Public.”

On November 14, 1934, the summons, having* indorsed on it the return of service upon the defendant Frances S. Spoor, was filed.

On April 18, 1935, a hearing was had on the motion to quash (which had been filed on November 3, 1934), and an order was entered denying the motion and ruling the defendant to plead within 20 days, from which an appeal was prayed to this court.

Oh October 4, 1935, the Appellate Court dismissed defendant’s appeal because the order appealed from was not final.

On October 16, 1935, a certified copy of the order of dismissal was filed by complainants in the office of the clerk of the superior court, and on the same day a notice was served by complainants upon the attorney for Frances S. Spoor, that complainants would appear on October 17, 1935, and ask for an order of default against her. Counsel for the defendant appeared in response to the notice and resisted the motion, stating that his client was out of town and that he wanted to confer with her. Thereafter the motion was withdrawn until service of the notice in writing was had upon defendant’s counsel that the certified copy of the Appellate Court order dismissing the appeal had been filed.

On October 18,1935, the motion was again presented and defendant represented by counsel resisted the motion for an order of default. At the request of counsel for the defense the court offered to give counsel for defendant 10 days within which he might plead. He then requested that the order read that “the ten days is on the order of the Court and not on my motion.” The court said the motion should not be written up as the court’s motion, and thereupon the court entered an order ruling the defendant to plead, answer or demur instanter.

On October 19, 1935,- complainants, by counsel, served notice on counsel for the defense that on October 21, 1935, they would appear and ask for an order of default against the defendant for failure to plead, answer or demur and on that date a decree was entered fixing defendant’s liability as a stockholder at $12,400, as heretofore stated.

The defendant has not stated its theory of the case, as is required by the rules of this court, nor is there any error assigned to the entry of the decree by the court below.

Plaintiff’s theory of the case is, first, that the service and return are good. Second, that if there were any deficiencies in the return they were cured by the affidavit filed in support of the motion to quash. Third, that the motion to quash was insufficient and improper. Fourth, that the failure of the defendant to assign the final decree as error requires the affirmance of the decree. Fifth, that the motion to quash, having actually been filed by an attorney, constituted a general appearance and amounted to a waiver of any objection to jurisdiction over the person; and sixth, that various acts of the defendant’s counsel in the court of the proceedings amounted to a general appearance on her part, precluding her from raising the question of jurisdiction over her person.

The return of the process server shows that the summons was served upon Jane Doe, a housemaid of the defendant, at her usual place of abode. The affidavit of the defendant here shows that the summons was served upon her housemaid at her usual place of residence. A maid servant is a member of the family. Race v. Oldridge, 90 Ill. 250. We do not think the particular name of the maid is of much importance except to identify her as the servant of the defendant, which fact is admitted here. Therefore, the service of the summons was in compliance with the statute. The special appearance of defendant by her counsel and the motion thereon were resisted and the defendant asked a continuance of the defense for 10 days in order to secure the presence of his client who was out of town. This motion, or objection, or request for a continuance against the entry of the judgment, was invoking the general jurisdiction of the court and, in doing this, defendant submitted herself by her counsel to the jurisdiction of the court, so that the special appearance became general. This was subsequently amplified by appearing before the court for a rule on plaintiff to file certified copies of exhibits, documentary evidence, etc.

As to the affidavit of denial of service, the Supreme Court in the case of Marnik v. Cusack, 317 Ill. 362, at page 363, said:

“Where a sheriff or other officer has made a false return, whether wrongfully and intentionally or innocently by mistake, relief may be granted by a court of equity or law, according to the circumstances, to the person injured by the false return, against the consequences, and this has frequently been done. (Owens v. Ranstead, 22 Ill. 161 . . . .) The stability of judicial proceeding's, however, requires that the return of an officer made in the due course of his official duty and under the sanction of his official oath should not be set aside merely upon the uncorroborated testimony of the person on whom the process has been served but only upon clear and satisfactory evidence. Davis v. Dresback, 81 Ill. 393; Kochman v. O’Neill, 202 Ill. 110.”

From the facts before us we are of the opinion that the defendant Frances S. Spoor has not proven by clear and satisfactory evidence that summons was not served upon her as provided by statute or that the court did not have jurisdiction of her person at the time of the entry of said judgment, and for the reasons given in this opinion the judgment of the superior court is affirmed.

Judgment affirmed.

Hall, P. J., and Hebel, J., concur.


text:
    Anastasios Touloupas, Appellant, v. The Equitable Life Assurance Society of the United States, Ap-pellee.
    Gen. No. 38,715.

      Opinion filed June 22, 1936.
    Rehearing denied July 6, 1936.
    Coco & Morse and Louis G. Davidson, both of Chicago, for appellant.
    Mayer, Meyer, Austrian & Platt, of Chicago, for appellee; Frank D. Mayer and Miles G. Seeley, of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from an order and judgment entered in the superior court after directing a verdict in favor of the defendant at the conclusion of plaintiff’s testimony. '

On June 7, 1933, plaintiff, Anastasios Touloupas, brought an action of trespass on the case on promises to recover payments allegedly due him under the total disability clause contained in a life insurance policy issued to him by defendant.

The declaration consisted of two counts, the first of which alleges the issuance of the policy on December 30, 1920, and the consideration paid therefor by plaintiff ; sets forth the policy in full, including the clause providing that if the insured becomes physically or mentally incapacitated so as to be wholly and presumably permanently unable to engage in any occupation or perform any work for compensation of financial value, the society will waive payment of any premiums and will pay the insured $1,200 a year in monthly in-stalments; that on August 20, 1932, while the policy was in full force and effect plaintiff became and continued to be totally and permanently disabled by. te-langiectasis of the veins; that he was unable to perform any work for compensation, gain or profit; that on September 28, 1932, due proof of plaintiff’s disability was furnished to the defendant; that plaintiff is entitled to the sum of $100 per month during the continuance of his disability; that $900 was due plaintiff at the time he brought suit; that defendant had refused to make any payments and that plaintiff is damaged in the sum of $900.

The second count of the declaration makes the same allegations as count one and further alleges that three quarterly premiums amounting to $77.20 each became due under the terms of said policy after the onset of said disability and prior to the date of bringing suit; that under the terms of the policy, payment of all premiums is to be waived by the defendant after receipt of proof thereof and during the continuance of the disability; that defendant after receiving said proof of disability, failed and refused to waive payment of said premiums and the plaintiff was wrongfully compelled to pay said premiums to defendant; that defendant has refused to return said premiums to the plaintiff, to the damage of plaintiff in the sum of $231.60.

Defendant filed an affidavit of merits to both counts stating that plaintiff did not become and was not totally and permanently disabled on and after August 20, 1932, or at any time subsequent to the issuance of the policy. By leave of court the defendant filed an additional affidavit of merits during the trial, in which it was alleged that plaintiff did not furnish to defendant due proof of disability within six months prior to the commencement of suit; that the premiums which were paid by plaintiff to defendant after the commencement of the alleged disability were paid voluntarily and cannot be recovered.

The evidence shows that plaintiff, a man 48 years of age at the time of the trial, was born in Greece; that he lived and worked on a farm until he was 18 years old, when he came to live in the United States; that he made Chicago Heights and Chicago his home until the date of the trial; that he received very little education while in Greece and could neither read nor write the English language very well; that he worked as a waiter all his life and was part owner and manager of a restaurant at one time; that his duties as a ivaiter required him to be on his feet and he performed such other duties as are required in a restaurant which also kept him on his feet; that on December 30, 1920, he took out a life insurance policy for $10,000 with the defendant which contained a disability clause upon which the present claim is based.

The evidence further shows that the disability clause contained in said policy provides :

“If the insured before attaining the age sixty, provided all premiums have been duly paid and this policy is then in full force and effect, becomes physically or mentally incapacitated to such an extent that he is and will be wholly and presumably permanently unable to engage in any occupation or perform any work for compensation of financial value, and furnishes due proof thereof and that such disability has then existed for sixty days, the Society, during the continuance of such disability, will waive payment of any premium payable upon this policy after receipt of such proof, and will pay to the Insured an income of Twelve Hundred Dollars a year payable in monthly instalments, (subject to the following conditions:)

“1. The income shall be payable six months after receipt of proof of disability and monthly thereafter during the continuance of such total and permanent disability. . . . The premiums so waived and the Disability Income so paid shall not be deducted from the amount payable at death; nor shall they impair the loan or surrender values, if any, under this policy.

“2. The Society, after the acceptance of proof of disability, shall have the right at any time, but not more frequently than once a year, to require proof of the continuance of such total disability. If the Insured shall fail to furnish satisfactory proof thereof, or if it appears at any time that the Insured has become able to engage in any occupation for remuneration or profit, no further premiums will be waived and no further income payments will be made hereunder on account of such disability.

“3. The entire and irrecoverable loss of sight of both eyes, or the severance of both hands at or above the wrists, or of both feet at or above the ankles, or of one entire hand and one entire foot, will of themselves be considered as total and permanent disability within the meaning of this provision. . . . ”

The evidence further shows that plaintiff worked steadily at his employment until 1931; that his right leg began to bother him about seven or eight years before the trial during which time it became more swollen and progressively painful; that during the last eight or ten months preceding January, 1932, he was able to do-hardly any work at all; that from January, 1932, until August 20, 1932, the date of the commencement of the disability for which compensation is claimed, he did very little work; that he worked two nights in a restaurant and the relief organization gave him work one week in every month from May until August, 1932; that during this period his leg grew steadily worse; that on August 20, 1932, the last day that he worked, his pain was quite severe and he fainted on the way home.

The evidence further shows that after plaintiff arrived home he was taken to Dr. Joannides, who directed him to stay at home, to rest and to stay off his feet; that a physical examination of Anastasios Tou-loupas on that date revealed a dilation of the veins of the right leg in the popliteal space behind the knee and extending down to the ankle; that the protuberances were equally dilated; that he did not work again at any time prior to the trial.

The evidence further shows that Dr. Schowalter who examined plaintiff on January 31,1933, and Dr. Green-spahn who examined him on February 23, 1933, both prescribed bed rest.

The evidence further shows that plaintiff was unable to be up and about without endangering his life; that after August 20, 1932, he spent practically all his time at home, either in bed or in a chair; that he uses a cane to get about and he cannot get around without it; that he makes only occasional trips to the grocery or drug store nearby; that he went down to see Dr. Joannides about once a month, from August 20, 1932, until November, 1934; that Dr. Joannides treated the plaintiff off and on but could do nothing for him; that the varicosities were steadily getting larger, more tense and expanded; that plaintiff'complained of constant pain and was unable to walk because of pain causing stiffness in his leg; that his leg swells when' he sits or stands for a while and the pain gets worse; that it relieves the pain somewhat when he lies down; that walking around makes the pain worse; that the pain is very sharp and he feels it all the time; that the doctors all agreed that the leg had become progressively worse since the onset of the disability up to the time of the trial.

The evidence further shows that on September 28, 1932, plaintiff notified the defendant in writing of his disability on a blank furnished by the company giving the nature of his disease, the date on which he became totally disabled, the nature of his employment and that he could not do any work. He also gave the name and address of the physician who was attending him and a history of previous attacks of his illness and stated that he carried no other insurance.

Subsequently, on December 22, 1932, another statement of the same general character relative to plaintiff’s condition ivas furnished to defendant, which also included a statement of the attending- physician.

The evidence further shows that on' January 14, 1933, the defendant notified the plaintiff by letter that it declined plaintiff’s claim for disability benefits on the ground that a condition of total and permanent disability was not proved; the evidence further shows that plaintiff paid the premiums that became due after August 20, 1932, until the date suit was brought which was on June 7,1933.

It is the contention of the defendant that plaintiff’s proof did not show that plaintiff ivas totally and permanently disabled according to the terms of the policy, and, secondly, that the commencement of the suit was premature because the six months had not expired from the date of the filing of the proof.

The plaintiff testified that his leg was very swollen and painful; that he last worked in January, 1932; that his leg first began to bother him about 7 or 8 years ago and that it gradually got worse; that on August 20, 1932, he attempted to work for the Lincoln Park Commissioners picking up papers; that the pains were very bad and he started to go home and fainted on the way; that, he was driven to Dr. Joannides ’ office and the doctor told him he should not do any work and that he should not stand on his feet; that from August 20, 1932 until June, 1933, his leg was getting a little worse and the pains were getting stronger.

Two doctors produced by the plaintiff stated that they had attended him and that plaintiff ivas unable to walk because of the pain causing a stiffness in the leg; that there was a progressive change in the varicosities and they were gradually getting larger. An objection by defendant prevented Dr. Joannides from telling whether or not an operation would free plaintiff from the pains and the disability which he now suffers.

The plaintiff alleges that proof of disability was furnished to defendant on September 28, 1932. The affidavit of defense does not deny this allegation, but simply denies that proof was furnished six months prior to the commencement of the suit. If the question were asked, as to what is meant by due proof, there would probably be as many different definitions submitted as there were persons attempting to define it. When, on September 28, 1932, plaintiff furnished defendant with the statement heretofore referred to, which was received by the defendant without objection, it was proof at least of the nature of plaintiff’s illness, the time when it commenced and that it was presumably a permanent disability, the name of the doctor, etc. Whether or not the proof of disability was satisfactory as furnished on September 28, 1932, or what the defendant considered as due proof, does not appear in this record.

As was said in the case of Sargent v. Prudential Ins. Co. of America, 283 Ill. App. 640 (Abst.), Mr. Presiding Justice McSurely, speaking for the court, said:

“The argument of the defendant assumes that plaintiff’s application for benefits must contain proofs to the satisfaction of the insurance company that he was permanently disabled, whereas it is more reasonable to hold that the fact of disability itself is the determining factor rather than the validity of the proof contained in the application. The same argument that is here advanced by defendant was made and considered in Forman v. New York Life Ins. Co., 267 Mich. 426, where the court very aptly said;

“ ‘Defendant’s principal contention is that “due proof” of total disability was not submitted to defendant. It is; argued that it is not the fact of disability but the showing to the company which brings the clause into operation.

“ ‘Of course the policy cannot fairly be construed to constitute defendant the sole judge of disability nor to mean that the fact of permanent disability is foreclosed in favor of or against either party by the proof made to the company by the insured. Actionable disability ultimately is a question of fact for trial. “Due proof” can mean no more than that reasonable evidence of disability within the terms of the policy shall be submitted to the company. Where such evidence is submitted in a good faith attempt to comply with the provisions of the policy the company should point out particularly any defects therein if it intends to rely upon them.’ ”

In the case at bar we think the statement furnished to the defendant on September 28, 1933, should have been considered a good faith attempt on the part of the plaintiff to furnish to the defendant all the information he possessed at that time as to the nature of his disability and as a claim, under the terms of the poliejr, because of such disability. When the letter of January 14, 1933, declined to point out wherein any of the proof furnished was insufficient, we think the six-months’ provision, as to the time required to elapse before suit could be commenced, should properly date from September 28, 1932, and, therefore, the commencement of the suit on June 7, 1933, was in compliance with the requirements of the policy.

We next come to the question as to whether or not, under the terms of the policy, plaintiff was permanently disabled. Plaintiff’s evidence and the evidence of the doctors who attended him show that it was impossible for him to do the work in which he had been engaged. But, whether he was permanently disabled or not, was a question which should have been submitted to a jury.

In the case of Zorger v. Prudential Ins. Co., 282 Ill. App. 444, which was a suit to recover on an insurance policy, because of permanent disability, Mr. Justice Hebei, speaking for this court, said:

“The question in this case is largely one of fact. From an examination of the record we find that a number of physicians were called as witnesses and testified as to the condition of the plaintiff, which testimony was based not only upon a physical examination, but also upon their answers to hypothetical questions. The evidence of the plaintiff clearly establishes the fact of his illness, and tends to show that he is suffering from exophthalmic goiter and a bad heart condition, and while there is some dispute as to plaintiff’s ability to engage in a gainful occupation, still it appears from all the evidence that the plaintiff is suffering from a physical disability. As to whether he is totally and permanently disabled was a question for the jury, and we are unable to say from this record that the verdict arrived at by the jury is against the manifest weight of the evidence.

On a motion for a directed verdict plaintiff is entitled to the benefit of all the facts that the evidence tends to prove. As the Supreme Court said in Pollard v. Broadway Cent. Hotel Corp., 353 Ill. 312, at page 319: “In the examination of the case she is entitled to the benefit of all the facts that the evidence tends to prove and all just inferences that can be drawn therefrom, and the evidence most favorable to her must be taken as true.”

And again in Brownlie v. Brownlie, 351 Ill. 72, at page 78, it was said: “The party resisting the motion is entitled to the benefit of all the evidence, considered in its aspect most favorable to him, together with all reasonable presumptions to be drawn therefrom. The motion raises the question whether there is any evidence fairly tending to prove the allegations of the bill. Where there is such evidence, although it may be opposed by the greater weight of the countervailing testimony, the case should be submitted to the jury.”

In the instant case from a review of the record we are satisfied that there was sufficient evidence which, if true, and in the absence of countervailing testimony, would entitle the plaintiff to have the cause submitted to a jury and the action of the trial court in granting the motion to instruct the jury at the close of plaintiff’s evidence was error.

For the reasons herein given the judgment of the superior court is hereby reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded.

Hall, P. J., and Hebel, J., concur.


text:
    The Liquid Carbonic Corporation, Appellant, v. Arthur Schalitt et al., Appellees.
    Gen. No. 38,739.

      Opinion filed June 22, 1936.
    Rehearing denied July 6, 1936.
    George A. Bosomburg, of Chicago, for appellant.
    Kabaker & Kabaker, of Chicago, for appellees; Julius L. Kabaker, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a judgment of the municipal court and an order of retorno habendo which were entered in a replevin suit in favor of the defendant Arthur Schalitt.

On November 7, 1935, the plaintiff The Liquid Carbonic Corporation filed a fourth class replevin suit against Arthur I. Schalitt and others. The bailiff served Schalitt, seized the goods and turned them over to plaintiff. On November 20, 1935, when the case was called for trial, Art Drug Co. filed its intervening petition, attacking the plaintiff’s title and claiming the right to possession for itself. The cause was heard by a judge without a jury. At the close of plaintiff’s case defendant’s counsel moved for judgment for defendant, Arthur I. Schalitt, and an order of retorno ba-beando. The court granted both motions of defendant. No point is raised on the pleadings in this appeal.

The theory of the plaintiff is that by producing the chattel mortgage from Thome Drugs, Inc., and the notes secured thereby, and further by showing there is a past due principal balance of $600, it made at least a prima facie case; that Arthur I. Schalitt having added his signature to the notes of Thome Drugs, Inc. about a year thereafter for the admitted purpose of assuming them, is bound by them to the same extent as if he had signed them simultaneously with Thome Drugs, Inc.

The theory of the defendant is that the addition of Schalitt’s signature on the promissory notes of Thome Drugs, Inc., without proof that Thome Drugs, Inc., knew about or consented to the alteration, rendered said notes void as against everybody, including defendant, Arthur I. Schalitt. Defendant further argues that plaintiff, by giving a written consent to Thome Drugs, Inc., to sell the drug store to Arthur I. Schalitt waived plaintiff’s chattel mortgage lien and destroyed Schalitt’s agreement to assume the chattel mortgage because the written consent superseded such agreement.

The evidence shows that in July, 1934, Thome Drugs, Inc., purchased from The Liquid Carbonic Corporation the soda fountain and appurtenances involved in this litigation; that at the time Thome Drug’s, Inc., signed a chattel mortgage securing the balance due which was evidenced by two instalment promissory notes executed by them. The mortgage was signed by the president and attested by the secretary and acknowledged before a notary public and recorded in the office of the recorder of Cook county on July 20, 1934.

The evidence further shows that on March 19, 1935, Arthur I. Schalitt, one of the defendants, went into the office of the plaintiff and told Arthur W. Grafer, the credit man, that he was buying the store and wanted to sign and assume the indebtedness on the fountain mortgage; that Mr. Grafer then permitted him to sign his name under the names then appearing on the notes, which were “Thome Drugs, L. B. Thome, and Joseph F. Thome”; that at that time Sehalitt also said that he had in mind forming a corporation and that when he did he would notify the plaintiff and plaintiff could arrange to foreclose the old chattel mortgage and have a new one executed by the corporation that he, Mr. Sehalitt, intended to form.

The evidence further shows that on or about March 25,1935, the plaintiff received a letter from The American Druggist Fire Insurance Company, showing that the interest of Thome Drugs, Inc., was transferred to Arthur I. Sehalitt, but that The Liquid Carbonic Corporation was still one of the mortgagees whose interests were protected under their policy; that on October 28, 1935, Emil A. Hirn went to the drug store where the soda fountain was located and told Sehalitt that he was from the office of the attorney for The Liquid Carbonic Corporation and that the chattel mortgage on the soda fountain was past due and asked him to pay it or to have the soda fountain refinanced; that Sehalitt told Hirn it was all right to refinance the soda fountain, but asked him to wait a few days because he wanted to have the landlord reduce the rent or he would move to another locality and if he moved the new address should appear on the new contract; that Hirn waited for a few days and on November 4th again called on Sehalitt and asked him if he was ready to sign the new contract, but that Sehalitt said he was not going’ to sign anything; that Hirn then demanded possession of the fountain, but that Sehalitt said he could not take it and that the matter would have to go through court.

It is the contention of the defendant Sehalitt that when he went to the plaintiff’s office and requested that permission be granted to the defendant Thome Drugs, Inc. to sell the mortgaged property to him and he wanted to assume the indebtedness on the fountain, that when they permitted him to sign the note and assume liability on the mortgage, without the original maker’s consent, by such action, under the law, the notes became void and the mortgage rendered invalid and, consequently, he should retain the soda fountain free and clear of all incumbrance. This, indeed, would be a strange doctrine of business morality if it were, as defendant claims, sanctioned by law.

Chapter 98, par. 145, section 143, Illinois State Bar Stats. 1935, provides as follows:

“Where a negotiable instrument is fraudulently or materially altered by the holder without the assent of all the parties liable thereon, it is avoided except as against a party who has himself made, authorized or assented to the alteration and subsequent indorsers.” This statute reflects nothing but common honesty and business decency as it is understood. In the instant case Schalitt went to plaintiff’s office and said he wanted to sign and assume the notes and mortgage, which he did. He certainly would be estopped from thereafter claiming that by so doing he had destroyed the notes and mortgage and, consequently, should be excused from paying them.

The defendant cites the case of Keller v. State Bank of Rock Island, 292 Ill. 553. This case does not apply.

It is quite evident that Schalitt, in signing the notes which was. done at his own request, was understood to be assuming the liability on the notes, and although this could have been done more formally, still Schalitt cannot now take advantage of his own act and change his position, to the injury of the plaintiff. The mortgage was valid on its face and authorized the taking of the soda fountain, which was done. No proof was offered on behalf of the intervening petitioner, the so-called Art Drug Co., Inc. In consenting to the sale from the Thome Drugs, Inc. to Schalitt, plaintiff did not destroy the validity of the mortgage and it was in full force and effect.

We are of the opinion that the trial court should have found the right of property in the plaintiff. The defendants in their brief say that all the evidence is in, so that there is no need of remanding the cause.

For the foregoing reasons we are of the opinion that the right of property is in the plaintiff and the judgment of the municipal court is reversed and a judgment order finding the right of property in the plaintiff The Liquid Carbonic Corporation, is entered here with costs against the defendants.

Jugment entered here for plaintiff with costs against defendants.

Hall, P. J., and Hebel, J., concur.


author: Mr. Presiding Justice Matchett

text:
    Rose Brandt, Appellant, v. Lee V. Brandt and I. Val Freedman, Defendants. I. Val Freedman, Appellee.
    Gen. No. 38,669.

      Opinion filed June 29, 1936.
    Owens & Owens, of Chicago, for appellant; Thomas L. Owens and Vincent G. Rinn, of Chicago, of counsel.
    Edward W. Rawlins and Eugene P. Kealy, both of Chicago, for appellee; Fay Warren Johnson, of Chicago, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

January 6, 1932, plaintiff filed a declaration in the superior court of Cook county in an action on the case. She named as defendants, thereto her former husband, Lee V. Brandt, and I. Val Freedman. The declaration was in two counts, the first of which charged that on December 20, 1927, defendants conspired to commit plaintiff to a hospital for the insane unlawfully and improperly; that within the dates of December 20, 1927, and May 14, 1928, they made preparations to carry the conspiracy into effect; that on May 14, 1928, in furtherance of the conspiracy, they caused a sworn petition to be filed in the county court of Cook county, alleging that plaintiff was insane and that her own welfare and that of others required her commitment to some hospital or asylum; that this petition was set for hearing on May 21, 1928, and on that day the county court entered an order quashing the petition; that defendants again, on October 16, 1931, further conspired and on October 20th caused another sworn petition to be filed in the county court, making the same allegations against plaintiff as in the first petition; that on that day, without reasonable or probable cause, she was arrested, taken into custody of an officer and confined in jail in the psychopathic hospital in the county, where she was detained until discharged ; that at the hearings which she was compelled to attend, defendants, in furtherance of the conspiracy, appeared and testified; that these hearings were continued until December 1, 1931, when an order was entered by the court quashing the writ and dismissing the petition.

The second count is in the usual form for malicious prosecution without probable cause by reason of the same proceedings set up on the first count. Plaintiff claimed damages in the sum of $100,000. Defendants filed the general issue with certain special pleas. The cause was tried before a jury, and at the close of plaintiff’s evidence the court granted a motion by defendant, I. Val Freedman, that the jury be instructed to return a verdict in his favor. The verdict was returned and judgment thereon entered for costs against plaintiff, to reverse which she has prosecuted this appeal to this court. A similar motion made at that time in behalf of defendant Brandt was denied, and evidence in his behalf was thereupon submitted. The jury returned a verdict for plaintiff but on motion of defendant a new trial was granted. As the motion for a directed verdict in behalf of Freedman was made at the close of plaintiff’s case and the ruling of the court made at that time, we may not properly consider subsequent evidence. Indeed, we may not properly consider all of that evidence received up to the close of plaintiff’s case for the reason that many objections of Freedman as to evidence offered were sustained as to him while overruled as to his codefendant Brandt, and plaintiff has not argued error as to any of the rulings of the trial court in this respect.

The rule of law to be applied upon the submission of a motion of this character is well settled. The ultimate question to be decided upon such motion is whether there is any evidence in the record from which a jury could, acting reasonably in the eye of the law, return a verdict for plaintiff. If there is such evidence, the motion should be denied; if not, then the motion should be granted. Libby, McNeill & Libby v. Cook, 222 Ill. 206; Allen v. United States Fidelity & Guaranty Co., 269 Ill. 234; Devine v. Delano, 272 Ill. 166; Ginsberg v. Ginsberg, 361 Ill. 499.

As the presumption is in favor of the action of the trial court, it is for plaintiff to point out evidence from which the jury could reasonably find in her favor under one of the counts of her declaration, and the ultimate question for our determination here is whether plaintiff has produced such quantum of evidence.

The evidence submitted in behalf of plaintiff tends to show that defendant Lee Y. Brandt was her husband; that on July 2, 1927, she obtained a decree of divorce from him in the superior court of Cook county for Ms fault and was awarded the custody of their two children. By the terms of the decree, Mr. Brandt was to pay plaintiff $9,500, making payments at stated intervals for the support of the children, and to return certain personal effects. Apparently, he did not make such payments. In November, 1927, a petition for rule on him to show cause was filed by plaintiff. The hearing thereon was continued from time to time until February 21, 1928, when an order was entered by the superior court sentencing him to the county jail for contempt of court for six months or until he should purge himself by payment of $6,000 due to plaintiff. This order of commitment was vacated on the same day.

Prior to the divorce proceedings, in 1926 defendant Brandt caused his wife, plaintiff, to be taken to the psychopathic hospital, where she remained about eight days, and following this she went to the North Shore Sanitarium. Again, in 1927, she went to the psychopathic hospital where she was examined and remained about eight days. As a result of the hearing held at that time she was paroled to her father and mother. Plaintiff’s testimony is to the effect that at the time she was at the psychopathic hospital in 1926 she saw defendant Freedman in the court room; that he was sitting back of a jury and the judge; she did not know who he was at that time. Her testimony is also to the effect that in 1926 she visited the Mayo Clinic at Rochester, Minnesota, and was examined there for goiter. December 23, 1927, while the proceedings on the petition for rule to show cause for nonpayment of alimony was pending, defendant Freedman went to the home of plaintiff, 3923 Clarendon avenue, Chicago; he told her he was a doctor and had come to see the children; she told him they were not sick and that if they had been she would have called her own doctor.

May 14, 1928, Brandt filed in the county court an application duly verified by him as true to his best knowledge, information and belief, in which he averred that he believed plaintiff was insane, suffering under mental derangement and unsafe to be at large, and that the welfare of herself and others required her restraint or commitment to some hospital or asylum for the insane. The petition averred that the facts of the case could be proved by Freedman, a regular practicing physician having personal knowledge of said case, by petitioner, and by Mark Sullivan, 4700 Lake Park avenue; that plaintiff had no property; that petitioner prayed that a warrant be issued for her to be and appear at the hearing in accordance with the statute, and that a subpoena be issued for the witnesses named. Attached to this petition is a written statement (Exhibit 1A) signed by Dr. I. Val Freedman, under date of March 28, '1928, in which he certifies that he has been in voluntary attendance on successive occasions upon the person of plaintiff; that about 3 o’clock p. m. December 21, 1927, he called at her address, rang the bell, and although he saw someone behind the curtain of the window, no one answered; that on December 23rd he called again about 9 o’clock a.’m. when plaintiff appeared “dressed in an unkempt house-apron, in a state of agitation,” and in response to his inquiries said she was Mrs. Brandt; that he told her he came to give medical service to the two little sick girls whom he saw through the door unclean and dirty; that with a series of agitated frowns, alternating pallor and flushing of the face, she said her children were not sick, that when she needed a doctor she would call on him, and in fact would call one that very day; that he persisted that she permit him to enter but she told him to get out, slamming the door in his face; that on January 26, 1928, in Judge Sullivan’s court he observed her for about an hour before her case was called, and that “she represented a very fidgety, restless and agitated mental type, glancing from one side of the court room to the other, paying but little attention to the conversation of a woman companion with whom she sat; her lips muttering' constantly as though she were talking to herself; that during the court hearing she insisted upon talking when not spoken to and out of turn; refused to heed the warnings of her attorney to keep quiet; refused to listen to the admonitions of the Judge; fought back suggestions, apparently in her favor, made by both the court and her attorney to do certain things to settle her case and expedite it”; that she seemed surrounded by an air of acute antagonism; that after the court hearing she rushed from the court room like a whirlwind, and after reaching the hall paced up and down with an attitude of defiance to everything and everybody until her own attorney was obliged to calm her and take her down the elevator.

Another statement signed by Dr. I. Val Freedman is to the effect that on February 28, 1928, he again saw plaintiff in Judge Sullivan’s court; that she sat against the wall with a short, stout gray-haired man of 50, going through a series of continuous, fidgety, chorea-like movements, smiling and frowning at intervals, apparently as thoughts of scenes and circumstances rushed through her mind, heedless of the desire of her companion to concentrate her attention upon what he might have to say to her; that as he entered the court room and stood at the door, where he remained until court convened, her attention became riveted on him with all the acute animosity, and bitterness which facial muscles could show; that during the hearing of her case her attitude was similar to that displayed January 26, 1928, as before described, with a greater display of systematized delusions that she was being deprived of her rights and liberty, especially evidenced when both her attorney and the court suggested that she sign a receipt for certain papers; that nearly forcible persuasion by her own attorney was required; that she again rushed out of the court; that she went into the hall, snarling defiance, muttering to herself, and spat on a young woman who stood in the hall and for a moment appeared ready to strike her, apparently without reason; that she paced up and down, stood in front of the elevator as though to go up or down, rushed back to one elevator, paced up and down the hall again, and about 30 minutes after the hearing was over she met a man in the hall who appeared to be a bodyguard and a “slugger.” A summary attached to the statement is as follows:

“Her entire attitude during these observations has been that of an apparently systematized series of delusions that the world is depriving her of her rights, her goods and peace of mind — denoting a functional mental disorder — who is very vehement in her attitude of discontent with constant complaint of imaginary slights — there seems to be loss of faculty of reasoning because of delusions of pseudo-persecution, brought on by rapid passing of inco-ordinated ideas.

“Considering the above mental state with her history and heredity, I would call her a typical case of paranoid form with a strain of persecutory (dementia) precox.”

May 21, 1928 (on motion of plaintiff’s attorney, as the record of the county court shows) both the petition and the writ were quashed in proceedings before I. L. Weaver, acting judge.

October 20, 1931, L. V. Brandt again filed a verified petition in the county court in the same form and making the same allegations that were made in the proceeding begun May 14, 1928. Attached to this petition was a certificate of Dr. I. Val Freedman, directed to whom it might concern and stating: ‘ ‘ This is to certify that I have examined Mrs. Bose Brandt, suffering from improper hallucinations, which I deem, in my opinion, to be of a persecutory dementia.”

This matter came up for hearing before Judge Keu-r'en, then acting as Judge of the county court, and an order that the writ of inquisition should be quashed was entered, and the petition, dismissed. Evidence was also offered and received tending to show that in March, 1928, after the proceedings for divorce in the superior court of Cook county had been terminated, Freedman visited a neighbor of plaintiff, Mrs. Neal Bay, who lived at 3931 Clarendon avenue, on three different occasions. Mrs. Bay testified that Freedman inquired as to the care plaintiff was giving her children, and that she informed him they were receiving the best of care.

Plaintiff testified that about October 15, 1931, a few days after she had made a visit to the office of defendant Brandt for the purpose of obtaining payments due to her, Freedman came to her home at about 8:30 a. m. and said he had received a call concerning the children; plaintiff asked him what he came there about, and he said, “Well, Mr. Lee V. Brandt wants the children”; that he then left and a few days later, about 3:30 in the afternoon, several police officers came to her home, served her with a warrant and took her into custody. The police permitted her to call Mr. George Peterson, who drove to a store where plaintiff was in the custody of several police officers. The police took her to the Gale station where she was detained until she was driven in a patrol wagon to the psychopathic hospital about 5:30 in the afternoon; that later, when she appeared in the county court, defendants Freedman and Brandt were present and testified.

Mrs. Anna W. Stuart, a witness for plaintiff and her neighbor, testified that she lived at 917 Cornelia street; that in October, 1931, Freedman came to her home and inquired whether she knew plaintiff and whether plaintiff was peculiar; that she (witness) answered that she was not; that she was asked whether plaintiff neglected her children, and witness answered, “No, she is a very good mother.” Freedman also asked whether the parents of plaintiff had her examined for insanity, and that she (witness) replied, “I know nothing about that, and I cannot think that Mrs. Brandt was insane.”

The petition filed October 20, 1931, named plaintiff’s father, George Gruehl (who is now deceased) as a witness. Upon examination by the court he stated that his daughter, plaintiff, was not insane.

This is, we believe, a summary of all the evidence submitted in plaintiff’s behalf. As already stated, the first count of the declaration charged a conspiracy between these two defendants, the object of which was to have plaintiff declared insane. Her evidence shows there had been two prior proceedings with which, so far as the evidence discloses, Dr. Freedman had nothing whatever to do with the exception that he sat in the court room while the testimony was being heard. It does not appear by whose request he was present or that he testified upon either occasion. The hearings were held in a public place, at which many physicians might naturally desire to be present, and there is certainly no evidence tending to show that Dr. Freedman up to that time conspired with Brandt, or any other person. The evidence indicates that Dr. Freedman became interested in the condition of plaintiff in December, 1927, and afterward in the spring of 1928; that he called at her home; that he visited Judge Sullivan’s court room when plaintiff was there for the purpose of making observations. The result of his examinations at plaintiff’s home and his observations and conclusions therefrom are set forth in the statements and certificates attached to each of the petitions, one filed May 14, 1928, and the other October 20, 1931, for the purpose of causing an inquiry to be made as to the sanity of plaintiff.

Section 3 of chapter 85 (Ill. State Bar Stats. 1935, p. 2030) provides, in substance, that when any person shall be, or is supposed to be insane, any reputable citizen of the county may file with the clerk of the county court a statement in writing under oath, setting forth that the person is insane and unsafe to be at large, or suffering under mental derangement, and that the welfare of himself and others requires his restraint or commitment to some hospital or asylum for the insane; “the said statement must be accompanied by the names of the witnesses (one of whom at least must be a physician having personal knowledge of the case), by whom the truth of the allegations therein contained may be substantiated and proved”; provided, that when it shall appear that the person alleged to be insane has not been examined by a physician, the judge may appoint a qualified physician of the county to make such examination and allow him compensation therefor.

The certificates attached to the petition seem to indicate a proceeding in conformity with the statute and a proceeding which was intended to, and in the natural order of things would, give protection to a person whose sanity was questioned. Dr. Freedman, so far as the evidence discloses, had no ulterior motive. He made statements which would seem to have been required by the statute, in the proper exercise of his professional obligations. He was not asked on this trial whether he was employed by his codefendant to make the examination and observations, concerning which he gave his opinion. The statements were in the nature of evidence required by the statute in a proceeding of this kind, and public policy would seem to require that statements of this kind, made in good faith and without ulterior motives, should be entitled to the same privilege as other statements made in connection with court proceedings.

Whatever the evidence thereafter may have disclosed, we think that up to the time plaintiff closed her evidence she had entirely failed to produce any facts from which a conspiracy to have plaintiff unjustly declared insane could be inferred. We do not forget that actual proof of conspiracy cannot in the nature of things usually be made, and that often it must be inferred from proof of the acts of the parties and circumstances in connection therewith. Ochs v. People, 124 Ill. 399. There is no proof here of such facts and circumstances. Plaintiff cites a number of cases, such as Smith v. Nippert, 76 Wis. 86, which hold that one who maliciously and falsely sues out an inquisition of lunacy may be liable to the party injured. There is no question of the law in that respect, which as a matter of fact in this State has been enacted into a statute (Ill. State Bar Stats. 1935, ch. 85, ¶ 28); but that is wholly beside the question. There is no proof here from which a conspiracy can be inferred.

Plaintiff’s cause of action under the second count is for malicious prosecution of this action. In order to recover under the second count it was necessary that plaintiff should prove all the elements of such prosecution, as stated in Glenn v. Lawrence, 280 Ill. 581. It was necessary to prove that a proceeding was begun; that it was against plaintiff and caused by defendant; that it terminated in favor of plaintiff; that it was begun without probable cause and with malice; and that damage resulted therefrom. The evidence for plaintiff showed the beginning of the proceeding, and that plaintiff here was defendant there, and that the proceeding had terminated in her favor; but the evidence does not disclose that this deféndant caused the proceeding to be begun, that there was an absence of probable cause, or that malice was present. In the absence of proof of these essential elements of the cause of action alleged in the second count, plaintiff could not recover, and defendant was entitled to an instruction as to that count also. Plaintiff had offered no medical testimony as to her actual mental condition up to the. time this order was entered.

The evidence having failed under one count to establish conspiracy, which was of the essence of the action, and under the second count to establish the elements of a cause of action already described, it follows that the court properly instructed the jury to return a verdict for defendants and did not err in ordering judgment to be entered thereon.

For these reasons the judgment of the trial court is affirmed.

Affirmed.

McSurely, P. J., and O’Connor, J., concur.


text:
    Morse-Hubbard Company, Appellant, v. Michigan Central Railroad Company and New York Central Railroad Company, Appellees.
    Gen. No. 38,800.

      Opinion filed June 29, 1936.
    Rehearing denied and opinion modified July 10, 1936.
    Lawrence E. Fleischman, of Chicago, for appellant.
    Sidney C. Murray, Frederick W. Flott and John B. Kneipple, all of Chicago, for appellees.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

Plaintiff appeals from a judgment in favor of defendants entered upon the finding of the court and asks that the same be reversed, with finding of fact and judgment in its favor and against defendants here. The facts stipulated, so far as material, are as follows:

On September 14, 1933, plaintiff, a corporation, doing business in Minneapolis, Minnesota, shipped two carloads of potatoes from Minneapolis to Detroit, Michigan, over the lines of the Michigan Central Railroad Co. The two cars were respectively defendants’ Nos. NP 90697 and NP 92852. Each of the cars contained 300 sacks of potatoes. The shipments were consigned to the order of plaintiff and were made on uniform order bills of lading. See U. S. Code Anno., title 49, ch. 4; Bills of Lading Act, secs. 88, 89, pp. 393-403. The original bill of lading for car NP 90697 is attached to the stipulation, and a photostatic copy of the bill of lading for car NP 92852 is also attached. Each bill of lading directed that the Baker Produce Co. of Detroit should be notified. On the following day, September 15th, plaintiff indorsed these bills of lading and delivered same to the First National Bank & Trust Co. of Minneapolis. Plaintiff also drew two drafts for the sum of $423 each upon the Baker Produce Co. and delivered these also to the Minneapolis bank, which then credited the drafts to plaintiff’s account.

The Minneapolis bank forwarded the drafts, with bills of lading attached, to the National Bank of Detroit, with instructions to deliver the bills of lading upon payment of the drafts. When the cars arrived in Detroit the New York Central Railroad Co., lessee of the Michigan Central Railroad Co., notified the Baker Produce Co. as required by the bills of lading. The Produce Co. requested the Detroit National Bank to send the bills of lading and the drafts to the Detroit Savings Bank for collection, and the National bank sent the drafts and bills of lading as requested. Plaintiff thereafter authorized the reduction of $45 on account of car NP 92852, and Baker Produce Co. paid $378 to the Detroit Savings Bank, purchasing from the Savings Bank a draft for that amount which it remitted to the Minneapolis bank. The Produce Co. also obtained from the Detroit Savings Bank the original order bill of lading for car NP 90697.

On September 22, 1933, the New York Central Railroad Co. delivered car NP 92852 to the Baker Produce Co. upon production of the paid draft without requiring the surrender of the original order bill of lading. On the same day the railroad company delivered to the Produce Co. car NP 90697 upon the surrender of the original order bill of lading. The draft drawn by plaintiff for $423 on account of car NP 90697 was not honored by the Produce Co., and October 18, 1933, the amount thereof was recharged by the Minneapolis bank to plaintiff. Plaintiff claims it is entitled to recover from defendant the sum of $423 with interest at five per cent from September 22, 1933.

It is not controverted that under the United States statute above cited a common carrier, who has issued an order bill of lading is liable to the holder of such bill for loss, which may be sustained as a result of its delivery of the goods represented by the- bill of lading to any person without the production of the order bill of lading. This is the law clearly stated in Pere Marquette Ry. Co. v. French & Co., 254 U. S. 538, 41 Sup. Ct. 195, 65 L. Ed. 391, a case on which both of the parties to this controversy rely. The construction put upon the statute by the United States courts is controlling, and the courts of. the various States are bound to follow this construction. The Supreme Court of Illinois has announced the same rule in Babbitt v. Grand Trunk Western Ry. Co., 285 Ill. 267, and no court, so far as we are aware, has held to the contrary.

Defendants in this case, however, present a defense somewhat ingenious. They say, in substance, that it is undisputed that plaintiff has sustained loss on the whole transaction, as set out in the stipulation of facts, but that plaintiff did not sustain loss on both cars involved and was therefore obligated to specify which one of the cars had not been paid for; that plaintiff’s amended statement of claim bases its action on alleged damage or loss to car NP 92852; but, say defendants, plaintiff’s action as to that car must fail because the facts stipulated show that plaintiff received full payment for that. car. It is true, defendants say, that Baker Produce Co. should have been given the bill of lading for car NP 92852, the car that was paid for, and not the bill of lading for car NP 96097, but this circumstance, it is said, did not arise from any act or omission of the carriers, and whether the Baker Produce Co. obtained the bill of lading surreptitiously, or by mistake of plaintiff’s agent, the bank, is not shown, nor is it any concern of defendants since there was no loss upon that car. Defendants cite many authorities to the proposition that mere failure on the part of the carrier to require production and surrender of an order bill of lading does not render the carrier liable for value of the shipment unless the lawful holder thereby sustained a loss and unless it is shown that such failure on the part of the carrier was the direct cause of the shipper’s loss. Pere Marquette Ry. Co. v. French S Co., 254 U. S. 538, already referred to, and other cases, so hold.

Plaintiff replies that defendants’ argument is based upon a misconstruction of the nature and character of the action; that it is not a suit to recover the value of a specific carload of potatoes, but an action for loss and damage occasioned by the negligent conduct of defendant carrier. Plaintiff says that defendants shift from an admission of loss and damage and denial of liability to an admission of liability and a denial of loss and damage, contending on the one hand that the loss was not occasioned by defendants’ negligence, and on the other, denying that plaintiff has suffered any loss. Plaintiff says that the payment of a draft attached to an invoice is not payment for specific merchandise but only has the effect of transferring the right to the one making payment to obtain the bill, of lading; that if the kind or value of the merchandise set forth in the bill of lading differed from that of the invoice to which the draft was attached, the carrier could deliver only what the bill of lading called for; that when the Baker Produce Co. paid the bank a certain amount of money, as shown by the paid draft and obtained from the bank the bill of lading for car NP 90697, it received exactly what it paid for, namely, the bill of lading for car NP 90697. Having received the bill of lading for which it paid, the Produce Co. was therefore not entitled to any other bill of lading, or any other potatoes, and that therefore when the Produce Co. presented to the carrier the paid draft as basis for a claim for another carload of potatoes, namely, car NP 92852, without presentation and surrender of the bill of lading for that car the defendant carrier had no right to turn over to the Produce Co. this carload of potatoes, and that when the carrier did so without the production and surrender of the bill of lading and without demanding indemnity as provided for in the rules of the Interstate Commerce Commission, the carrier became the direct cause of the loss of the shipper. Plaintiff points out that if some innocent holder other than the shipper had possession of the bill of lading and made a demand upon the carrier for the potatoes, the carrier would be required to deliver to such holder upon demand and would have no defense as against a claim made by such holder ; that the physical possession of the order bill of lading entitles the holder to the merchandise and that plaintiff herein, who now holds and has in his possession, this bill of lading, stands in the • same position as an innocent holder thereof.

Defendants admit plaintiff has suffered a loss, but defendants say that this loss did not occur by reason of any act or omission of duty on their part. The rules of the Interstate Commerce Commission, which are made a part of the stipulation, place upon the carrier the duty to obtain the production and surrender of the bill of lading before the delivery of the goods. These rules also provide what the carrier shall do when a bill of lading of this kind is not produced or surrendered. The provision in such case is that the carrier shall take an indemnity bond to the amount of 125 per cent of the value of the goods for its own protection and for the protection of the shipper. Defendants neglected to do this.

Defendants argue a variance under the pleadings, but this action was of the fourth class in the municipal court, and in such cases in that court, the form, or kind of action, is determined by the proof. Edgerton v. Chicago, R. I. & P. Ry. Co., 240 Ill. 311; Bruner v. Grand Trunk Western Ry. Co., 319 Ill. 421.

While there were two carloads of potatoes, the transaction was, in essence, one, and defendant carriers may not escape liability by splitting the one transaction into two and presenting special pleas as to particular parts. Plaintiff’s statement of claim is not based upon a part of the transaction as to one particular car, but rather upon defendants’ neglect of duty with reference to the whole transaction, which was intrusted to them. We hold the defendants liable on the facts as stipulated.

The judgment of the trial court is reversed and judgment entered in favor of plaintiff, Morse-Hubbard Co., a corporation, and against Michigan Central Railroad Co., a corporation, and New York Central Railroad Co., a corporation, for $423, with interest at 5 per cent from September 22, 1933, amounting to $58.57 and making a total sum of $481.57.

Reversed and judgment entered here.

O’Connor and McSurely, JJ., concur.