text:
    Metropolitan Life Insurance Company, Plaintiff, v. Mattie Davis, Appellee, and Virtrue Davis, Appellant.

      Opinion filed June 6, 1938.
    Manuel M. Wiseman, of Alton, and Philip Gr. Listeman, East St. Louis, for appellant.
    Jacoby & Daly, of Alton, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of Madison county, awarding* the proceeds of a policy of g’roup life insurance upon the life of Thomas Davis, the husband of appellant, to appellee Mattie Davis, his sister. On June 19, 1934, the plaintiff, Metropolitan Life Insurance Company, issued its group insurance policy to Thomas Davis, who was then an employee of the International Shoe Company, and agreed to pay to the beneficiary designated in the said policy, upon the death of the said Thomas Davis, the sum of $1,000. Appellant was named beneficiary in said policy, and such designation as beneficiary remained until December 11, 1935. On that date the insured took the necessary steps to change the beneficiary to his sister Mattie Davis. On the 13th day of February, 1936, the insured died, and, after his death, claims for the whole amount of the insurance were made upon the plaintiff by both appellee and appellant; plaintiff filed its complaint of interpleader in the circuit court of Madison county, in which complaint both appellee and appellant were made parties defendant. Plaintiff deposited with the clerk of that court the sum of $1,100, which was the amount due under said policy of insurance, and by the decree of the circuit court it was discharged from further liability in the premises.

Appellant filed her answer to the bill of complaint and averred therein that she was the surviving widow of the insured and that said insured left him surviving three minor children, who were in her custody. She further averred that the purported change of beneficiary in said certificate of insurance was made while the insured was not of sound mind and memory and when his mind and memory were impaired and while he was wrongfully influenced by appellee. She also averred that at the time of the purported change of beneficiary the insured was wholly incapable of making any change of beneficiary or of carrying on any business transactions. With her answer she filed a demand for a jury trial.

Appellee filed her motion to strike from the records of this cause the demand for jury trial filed by appellant, and the court granted said motion and struck the demand for a jury trial from the records of this cause. To this ruling appellant duly excepted.

Appellee then filed her answer to the complaint and denied that the insured was of unsound mind and memory or that his mind and memory was in anywise impaired or that he was wrongfully influenced, or in any manner influenced, by the defendant, Mattie Davis, or anyone else, at the time that the beneficiary on the certificate of insurance involved was changed from the appellant, Yirtrue Davis, to appellee, Mattie Davis. She also denied that the insured was incapable of making such change of beneficiary or of carrying on his ordinary business transactions, and averred that at the time such change of beneficiary was made he was of sound mind and "memory and acted entirely of his own free will and accord and was free from any influence from anyone other than himself.

The issues were tried by the court without a jury and the court entered a decree in which the sum of $1,100 paid into the registry of the court by the plaintiff, less the plaintiff’s costs, was ordered to be paid to the appellee, Mattie Davis, and the appellant, Yirtrue Davis, was ordered to pay the costs of the suit. It is from that decree that this appeal is perfected.

The insured, Thomas Davis, at the time of his death, was about 42 years of age and for some years theretofore was employed at the International Shoe Company in Hartford, Illinois, as a laborer. He had been married twice prior to his marriage to appellant. About six years prior to his death, he married appellant who was then about 20 years of age, and to that marriage four children were born; three during the lifetime of the insured, and one child was born subsequent to his death. He and appellant had lived together continuously since their marriage and for some time prior to his death the insured and his wife and family had made their home with the Neal family in Alton. The original certificate of insurance issued by the plaintiff to the insured, in which appellant was named beneficiary, was in the possession of appellant from the time of its issuanee until after the death of the insured.

Appellant assigns as errors that the decree is against the law and the evidence; that the court erred in not finding that the insured was of unsound mind and subject to insane delusions at the time of changing his beneficiary. Claim is also made that the court erred in striking appellant’s demand for a jury trial.

Section 63 of ch. 110 [Ill. Rev. Stat. 1937, § 187; Jones Ill. Stats. Ann. 104.063], expressly vests in courts of equity discretion as to whether they shall call a jury on questions of fact in chancery cases. Trial by jury in such cases does not exist as a matter of right, except in certain enumerated cases, notably contests of wills. The policy of vesting such discretion is in our judgment a wise policy. Every contested chancery case contains certain questions of fact, and if the parties of either of them, were entitled to a jury as a matter of right on all contested questions of fact it would render a nullity the very old procedure in chaneery cases and thus defeat the express intention of the legislature. The right to a trial by'a jury which is guaranteed by the constitution applies only to actions known to common law and is not a matter of right in equity proceedings. (Weininger v. Metropolitan Fire Ins. Co., 359 Ill. 584, 195 N. E. 420.)

It is urged by appellant that the case of Pyott v. Pyott, 191 Ill. 280, is contrary to this rule. We do not so interpret that case. While it is true the court does say that in matters of insanity arising in proceedings the better practice is to try that particular question by jury, yet it goes on to say that the discretion to do so is in the trial court and that the verdict in any event is only advisory and that it is no error to hear such matters before the court.

The trial court did not abuse its discretion in striking the demand for jury and refusing to submit the issue of insanity to a jury.

Appellant urges that the insured was under the influence of an insane delusion which caused him to make the change in his beneficiary. In Snell v. Weldon, 243 Ill. 496, the court said, “If without evidence of any kind, a testator imagines or conceives something to exist which does not exist in fact and which no rational person would in the absence of evidence believe to exist, he is afflicted with an insane delusion. A person who believes supposed facts which have no existence except in his perverted imagination and which are ag*ainst all evidence and probability, and conducts himself, however logically, upon the assumption of their existence, is under an insane delusion.” In Nicewander v. Nicewander, 151 Ill. 156, the court said, “Insane delusion consists in the belief of facts which no rational person would have believed. In order that the testator may comprehend the relations which he holds to those having claims upon him, no insane delusion should influence his will; no disorder of the mind should poison his affections, pervert his sense of right or prevent the exercise of his natural faculties. Unreasonable prejudice against relatives is not ordinarily a ground for invalidating a will; but a will may be set aside where the testator’s aversion is the result of an insane delusion, and his conduct cannot be explained on any other ground.” In Snell v. Weldon, supra, the court further said, “A belief which results from a process of reasoning from evidence, however imperfect the process may be or illogical the conclusion, is not an insane delusion. . . . Where a testator has some actual grounds for the belief which he has, though regarded by others as wholly insufficient, the mere misapprehension of the facts or unreasonable and extravagant conclusions drawn therefrom do not establish the existence of such a delusion as will invalidate his will.”

In Owen v. Crumbaugh, 228 Ill. 380, our Supreme Court defined an insane delusion as “a spontaneous conception and acceptance as a fact of that which has no real existence except in imagination, and persistent adherence to it against all evidence.” Likéwise throughout the books there is little or no distinction in the definitions which our Supreme Court has adhered to in defining insane delusions. Without exception, however, they hold that that in the mind of a person which amounts to an insane delusion is a belief in something which did not or could not exist or in all human probability would not exist, and a condition of mind which has no evidence to support it and will not yield to reason. If, as said in Snell v. Weldon, supra, there is evidence or grounds to induce such a belief, then however wrong the judgment of the person may be, that judgment cannot and does not come within the definitions of an insane delusion.

Applying these principles to the case at bar, was there any evidence to induce in the mind of the insured the thought that his wife was not faithful to him? The ■ evidence shows that at the time the last child of insured and appellant was conceived the genital organs of insured, her husband, were so swollen as the result of heart disease that .sexual intercourse was impossible, and the man stated that he had not had connection with her since the prior April. This is not only evidence to induce a belief, but if those statements are true it is conclusive that the wife was unfaithful to him.

Similarly, with reference to the oft repeated statements of insured that his wife was poisoning him or attempting’ to poison him to get his insurance, the evidence shows (supplemental abstract 18), that whenever his wife cooked for him she would never eat anything she cooked for him; if she cooked it in a frying pan, they would never eat out of that frying pan; if they cooked a whole chicken, never eat any of that chicken; if he did not eat they would throw it out.

At this time the man was going from bad to worse with reference to his physical condition. He had in mind, probably, the evidence of the unfaithfulness of his wife; he probably believed that his wife was poisoning him for the purpose of getting* his insurance. Was that belief merely a product of his imagination, or was it based on some evidence? Some of the evidence is just recited above, together with the circumstances. It might not be proof to justify his belief, but it cannot be said, in view of those facts and circumstances, that he acted without any evidence in forming the belief which he apparently did form. In the cases above cited and many more, the principle runs that if the condition of the mind is based upon evidence, however slight, which might induce a belief in a reasonable mind, such a belief does not amount to an insane delusion. We cannot say that the chancellor was wrong in concluding that the apparent beliefs held by the insured did not amount to an insane delusion.

The evidence in the case offered as showing that the insured was overcome and that he was acting under undue influence at the time of changing Ms beneficiary is not sufficient, standing' alone, uncontradicted, upon which, to base a conclusion that the insured was unduly influenced. We shall not consume space in discussing that issue; the trial court ruled correctly on that issue of the case.

This leaves only the contention that the finding and judgment of the trial court were against the manifest weight of the evidence.

Much of the evidence offered had to do with the deceased’s physical condition, or related to incidents such as the deceased’s saying that his wife was trying to poison him, that his swollen body was the result of poisoning. One witness came to his house to take him to work one time and insured told him to wait until he got dressed; insured was already dressed. This witness took this incident as a foundation for the opinion that there was something wrong. One other witness, George Parker, testified that he did not believe insured knew what he was talking about; one other witness came to his house and saw a pistol on his table at breakfast. Other witnesses, notably Mr. and Mrs. Meal with whom insured with his wife lived for a time, testified he walked the floor at night and complained of agony.

Doctor Cousatz testified that insured talked rationally, another physician, Doctor Samuels, said that the insured seemed rational and that his mental condition was all right. Many lay witnesses were called who in varying language expressed opinion that insured “was close to his right mind,” that he “talked as good sense as he always talked”; that he “conversed in a rational manner,” or “had good judgment”; that he “talked as a man very sensible”; that he “without doubt knew what he was doing”; that he talked with “good common judgment.”

We are to add to this testimony the presumption of sanity which obtains; also the circumstance that insured attended to such business as he had to attend to up to the time he became very ill j that he personally and alone went through the necessary formalities of having the beneficiary changed in his policy.

If for the moment we leave out the circumstances of the insured transacting his business, and take the evidence of this record alone, reasonable men might disagree as to the mental condition of the insured at the time of change of beneficiary. Such being the case we are unable to say that the finding and judgment of the court was against the manifest weight of the evidence. Adding to the evidence the circumstances ref'erred to it seems to us that a jury might well conclude that insured was capable of knowingly and understandingly doing the act which he did when he changed his beneficiary. The chancellor in this case without a jury saw and heard the witnesses who testified, obviously applied the tests of credibility to the witnesses who did testify and found that the act of changing the beneficiary was the act and deed of insured. We are of the opinion that the trial court did not err in making such finding and entering such judgment.

The judgment of the circuit court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Edwards

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. W. T. Herrin, Plaintiff in Error.

      Opinion filed June 6, 1938.
    Scerial Thompson, of Harrisburg, for plaintiff in error.
    Lloyd H. Melton, State’s Attorney, and C. T. Flota, Assistant State’s Attorney, for defendant in error.
   Mr. Justice Edwards

delivered the opinion of the court.

Plaintiff in error was prosecuted by information in the county court of Saline county for the crime of petit larceny; the specific charge being that on March 13, 1937, he did steal, take and carry away one ham of the value of $1.40, the personal property of Charles V. Parker Company, a corporation. Trial by jury was waived and the cause submitted to the court, who, after hearing, found plaintiff in error guilty and sentenced him to imprisonment in the county jail for a term of 30 days and to pay a fine of $10 and costs, which, if not paid, was to be worked out at the rate of $1.50 per day.

Nine assignments of error are laid in the abstract; however, but two are argued, hence the remaining seven are regarded as having been waived; Lingle v. West Chicago Park Com’rs, 222 Ill. 384; Dumbeck v. Walsh, 179 Ill. App. 239.

It is contended that there is a failure to prove one of the material averments of the information, — that of ownership. The allegation is that the property was owned by Charles V. Parker Company, a corporation. The proof is that it belonged to C. V. Parker Company, a corporation, and it is argued that proof of ownership in C. Y. Parker Company, a corporation, does not sustain the averment that it was the property of Charles Y. Parker Company, a corporation.

In Little v. People, 157 Ill. 153, the court held that where the indictment alleged the Christian name of the owner of the stolen property and the proof showed only his initials, no question of identity being raised at the trial, the proof as made was sufficient; and to the same effect is People v. Ascey, 304 Ill. 404. We think there is nothing in this point. Moreover, in any event, it is not open to question upon this record for the sufficient reason that the question of variance was not raised in the trial court. To be available as ground for reversal, the matter of a variance between allegation and proof must be raised upon the original hearing, and cannot be set up for the first time upon review of the cause, People v. Ascey, supra; Dyer v. People, 84 Ill. 624.

Plaintiff in error insists that at the time of the theft he was so intoxicated as not to be conscious of what he was doing, and that he does not remember taking the ham. He contends that the gist of the offense of larceny is the intent to steal, and that he was, for the reason stated, unable to entertain such intent; hence not guilty of larceny, although, as a physical fact, he may have taken the ham.'

The law is as stated. People v. Brislane, 295 Ill. 241; Crosby v. People, 137 Ill. 325. If the proof shows that at the time of the taking plaintiff in error was so insane, whether from intoxication or other cause, as to be incapable of forming the criminal intent to steal, then he is not guilty. There is evidence that he had, shortly before the property was taken, been imbibing whisky and beer to excess, and that he showed the effects of such drinking. There are also other circumstances in the testimony which tend to show that he was more or less, at such time, conscious of his acts and conduct.

The trial judge, with the witnesses before him, had opportunity superior to ours to determine their credibility and to find the facts, and upon the record as made we cannot say he was not warranted in finding plaintiff in error guilty.

We think the judgment was right and should be affirmed.

Judgment affirmed.


text:
    Georgia Resh Billings, Appellant, v. The Mounds Building and Loan Association, Appellee.

      Opinion filed June 6, 1938.
    Wilbourn & Gillespie and C. S. Miller, both of Cairo, for appellant.
    Joe Crain, of Mound City, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

Prior to March 28, 1930, Georgia Besh Billings, plaintiff, was the owner of 25 shares of stock in the Mounds Building and Loan Association, defendant herein. Upon being notified of the maturity of such stock she presented the certificate to the secretary of defendant, who took same up and gave her in lieu thereof an instrument in the following words and figures: “This voucher draws 6% interest from March 1, 1930.

No. 4750.

Office of the Secretary of The Mounds Building and Loan Association of Mounds, Illinois.

“The Treasurer of The Mounds Building & Loan Association, of Mounds, Ill., will pay to the order of

Georgia Resh Billings, $1935.80 — Nineteen Hundred Thirty-five — 80/100 Dollars. On account of Maturing-Cert 497-20 SS 26.

“Dues $1260.00

Earnings 675.80

Total $1935.80

‘ ‘--President

J. E. Herman Secretary

Mounds, Illinois, 5/28, 1930.”

Indorsements, seven in number, appear upon the back of said instrument, the first two of which, dated September 13, 1930, and March 2, 1931, recite the payment of six months interest, one in the sum of $58.07 and the other in the sum of $57.07. In addition there are two others, dated June 16, 1931, and March 17, 1932, for $29.04 each, and three of date September 3, 1932, April 14, 1933, and October 14, 1933, each for the sum of $29.03 and signifying- the payment of six months interest.

It appears from the testimony that such instrument was received and accepted by plaintiff when she surrendered her stock certificate, and- that said indorsements were made by officers of defendant at the time of paying such interest, in the presence of plaintiff or her agent, without objection. It is further shown without contradiction that after the issuance of such voucher defendant sent notice to plaintiff of each stockholders ’ meeting, and that at the time of bringing this suit there were other outstanding orders of defendant, some prior in time to that of plaintiff, amounting to about $7,300.

The cause was heard by the court without a jury, judgment was rendered in favor óf defendant, and plaintiff seeks to reverse same by this appeal.

The one and only question argued is whether or not the relationship of the parties, at the time suit was instituted, was that of general debtor and creditor. Plaintiff contends that the instrument in question is in effect a promissory note evidencing the existence of a debt in her favor by defendant, and that when she surrendered her stock certificate and took the voucher upon which suit was brought, she thereby became, with the assent of defendant, its creditor, and as such is entitled to be preferred over the holders of matured certificates issued prior to the date of such instrument.

Defendant’s position is that plaintiff is merely the holder of a matured certificate, and as such is still a member of the association with the right to participate in its assets on a parity with other holders of matured certificates, as limited by statute.

Section 224, ch. 32, Smith-Hurd’s Rev. St. 1929 [Cahill’s Ill. St. 1929, ch. 32, ¶ 386], among other things provided that when any shares in a building' and loan association should reach the value of $100 each they should be held to be matured; that all payments of dues thereon should cease and the owner be paid their maturity value out of funds of the association in the manner provided for voluntary withdrawals, and that with the consent of the directors there might be issued in lieu of such shares, stock certificates upon which the interest to be paid should not exceed the actual net earnings of the association, payable at such times and in such manner as should be expressed in the certificate.

Section 225 stated the manner of voluntary withdrawals, which was that written applications therefor should be filed with the association in numerical order, and payments thereon made in the order in which same were filed.

Defendant contends that there was no authority for its secretary to issue, of his own volition, a written evidence of obligation which in legal effect was a promissory note. If the instrument was in reality such, and was issued and executed by the secretary, as provided by sec. 223, ch. 32, Smith-Hurd’s Rev. St. 1929 [Cahill’s Ill. St. 1929, ch. 32, ¶ 385], we think plaintiff was under no obligation to show, in the first instance, that same was done pursuant to an authorization by the board of directors, but that such was a matter of defense to be alleged and proven by defendant, St. Louis Loan & Inv. Co. v. Yantis, 173 Ill. 321. However, as we find the fact to be in the cause, we do not deem the point important.

It will be observed that the voucher on its face recites that it is “on account of maturing cert 497-20 SS 26.” Plaintiff’s original stock certificate was number 497, for 20 shares, and of series 26, just as evidenced by such written statement. This tends strongly to prove that it was issued as a matured certificate, and not as a promissory note.

The law is established that where parties to a written instrument have by their words or conduct given it a particular interpretation or regarded it as a document of a certain class, the court will accept the construction which they have so placed upon it, Lehmann v. Revell, 354 Ill. 262; Slack v. Knox, 213 Ill. 190.

By applying the rule we find that no time was fixed by the document for the payment of the amount stated to be due, and while such is not necessary to its validity as an obligation, yet it is the general custom in all written evidences of indebtedness to fix a due date therefor. Plaintiff was regularly sent notices- of the stockholders’ meetings. If her status was that of a general creditor it is hardly probable that such notice would have been mailed to her, thus showing that defendant did not regard the voucher as evidencing a change of relation to that of debtor and creditor. At seven different times the payment of interest was indorsed upon the document by officers of defendant, in the presence of plaintiff or her agent, each time it being recited that it paid the interest thereon for six months, twice at 6 per cent and five times at 3 per cent, all without protest on the part of plaintiff. Had the instrument been a promissory note it is unlikely that plaintiff would have accepted an arbitrary reduction of interest without objection. It rather shows that she understood that she was receiving her interest as a part of the earnings of the association after the manner of a matured certificate.

We think the proof in its entirety shows that the voucher sued upon was issued, not as a promissory note, but as a matured certificate, and that the parties did not contemplate that its issuance by the association, in exchange for the stock certificate of plaintiff, created the relation of debtor and creditor.

Decisions have been cited by defendant in instances where the facts have been held to alter the status of tiie parties upon surrender of a stock certificate, to create a relationship of debtor and creditor. These are clearly distinguishable from the proven circumstances in the instant case, and we do not regard them as being in point.

We think the judgment was right, and it will be affirmed.

Judgment affirmed.


author: Mr. Justice Murphy

text:
    Carolyn Shipley Jones, Appellee, v. Ed Keilbach and William Savitsky, Appellants.

      Opinion filed June 6, 1938.
    Kramer, Campbell, Costello & Wiechert, of East St. Louis, for appellants.
    Chas. L. Cray and Ralph D. Walker, both of East St. Louis, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

Carolyn Shipley Jones, plaintiff respondent, hereinafter referred to as plaintiff, brought this action against Ed Keilbaeh, a tavern keeper and William Savitsky, the owner of the building in which Keilbaeh operated the tavern, to recover damages to her means of support alleged to have been caused by the intoxication and consequent death of her son, Joe B. Shipley. The action was brought under the provision of sec. 135, ch. 43, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 68.042]. A trial with a jury resulted in a verdict for the defendants. The court allowed plaintiff’s motion for a new trial and defendants, by leave granted, have appealed from that order.

The evidence shows the deceased was first seen in defendant Keilbach’s tavern in Bast St. Louis between 9 and 9:30 of the evening of September 5, 1936, that he stayed there until about 1:30 the following morning, that he was drinking beer in the tavern; that there was 30 or more persons present, dancing and drinking and that at times during the night the deceased joined in the dancing. There is a conflict in the evidence as to whether he was intoxicated but some of plaintiff’s witnesses testified that he staggered when he walked and was noticeably under the influence of liquor. No account of his whereabouts is shown from the time he was last seen at the tavern at 1:30 until 4:20 of the same morning when two police officers removed him from a hole or depression in a vacant lot adjacent to the sidewalk. The place where he was found was a distance of three and a half blocks from defendant’s tavern and if he had started from the tavern to his home he had gone in the opposite direction. The place where Shipley was found is described as being 8 to 10 feet below the surface of the walk. A fence or guard rail extended along the walk as a protection to pedestrians on the walk. A board of this fence was loose at one end and down. Deceased was alive when found by the police officers but was paralyzed in body and limb. The undisputed medical testimony is that his neck was broken. There were no marks of any kind on his body. He died the same day that he received the injury.

The record does not disclose the ruling which the trial court deemed erroneous, but council in their respective briefs confine their argument to the giving of one of defendant’s instructions.

This instruction, numbered 7, was as follows, “The court instructs the jury that if you believe from the evidence in this case that the injuries which resulted in the death of Joe Shipley were occasioned to him through some intervening cause over which the defendant, Ed Keilbaeh, had no control, then the plaintiff would not be entitled to recover as against the defendants and your verdict should be one finding the defendants not guilty.”

The statute which gives the right of recovery to one who has been injured in person, property or means of support by any intoxicated person or in consequence of intoxication provides that the action shall be against the person or persons who by selling or giving alcoholic liquor caused the intoxication in whole or in part.

This section, enacted in 1933, is substantially the same as section 9 of the old Dram Shop Act, the only change being the words “alcoholic liquors” having been substituted for “intoxicating liquors.”

In Schroder v. Crawford, 94 Ill. 357 the facts showed that an intoxicated person in going to his home in the night had to cross a railroad and next morning was found on the track, killed by being run over by a train of cars. The court in sustaining a verdict against the one who sold the liquor said, “It was not the intention that the intoxicating liquor alone, of itself, exclusive of other agency, should do the whole injury. That would fall quite short of the measure of remedy intended to be given.” In further discussion the court said, “It is said there was here an intervening* ag’ency which caused the death, to-wit: the train of cars; that that was the proximate cause, and the intoxication but the remote cause and that the proximate cause only is to be looked to. So it might be said where one from intoxication lies down and becomes frozen to death, or falls into the fire and is burned to death, or is drowned by a freshet, as in Hackett v. Smelsley, 77 Ill. 109, that the intervening agency of frost, fire and the freshet occasioned the death and was the proximate cause, and thus no liability under this statute. This would be construing away the statute in defeat of its purpose.” This case was followed in Triggs v. McIntyre, 215 Ill. 369.

If the injury to Joe Shipley was directly attributable to his intoxicated condition and there was no other agency intervened sufficient of itself to stand as the cause of the injury, then the intoxicated condition would be considered the proximate cause of the injury, but if he received the injury while intoxicated, through the agency of an outside force but such intervening cause could not and would not have reasonably been brought into action except by reason of the intoxicated condition then in such case the intoxication would be a contributing factor and would be within the provisions of the statute. On the other hand if Joe Shipley while in an intoxicated condition suffered an injury by an intervening cause which intervening cause of itself broke the causal connection between the intoxication and the injury and the intoxicated condition was not either the proximate or remote cause of the injury then the defendants would not be liable even though Keilbach had sold the alcoholic liquors which caused the intoxication.

From this instruction the jury could well have concluded that the defendants were not liable if there was any intervening cause, over which Keilbach had no control, that occasioned the injury, even though the intoxication created a condition in Joe Shipley by reason of which the intervening agency was caused to operate. The intervention of an intervening cause would not exempt the defendants from liability only when the intervening cause severed all causal connection between the intoxication and the injury and the instruction given was not so limited.

Under the evidence in this case the giving of the instruction was prejudicial error and plaintiff should have the opportunity of submitting her case to another jury. The order granting a new trial is affirmed.

Order affirmed.


text:
    Bernice Wilson, Appellant, v. East St. Louis and Interurban Water Company, Appellee.

      Opinion filed June 6, 1938.
    MacDonald, Meyer & Meyer, of East St. Louis, for appellant.
    Pope & Driemeyer, of East St. Louis, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

This is an appeal from a judgment entered on a directed verdict for the defendant in a suit to recover damages for personal injuries.

The defendant, a public utility company, furnishing water to the inhabitants of the city of Belleville, installed a meter box in a dirt sidewalk in the public street in front of plaintiff’s home. A little after 8 p. m., June 10,1937, plaintiff when leaving her home to go to a nearby store, stepped on the covering of the manhole where the meter box was located. The lid to the covering tilted causing her to fall and resulted in the injuries for which she claims damages in this suit.

The court reserved its ruling on defendant’s motions for a directed verdict until after the jury had returned a verdict in favor of the plaintiff for $950. The only questions raised on this appeal are as to the correctness of the court’s ruling in allowing the motion and its refusal to grant plaintiff leave to amend her complaint after verdict and before judgment.

The negligence alleged in the complaint is that the defendant carelessly and negligently permitted the cover over the manhole to become deifective and loose so as to be hazardous to persons using said sidewalk.

The covering to the manhole is described by the evidence as being in two parts, the metal rim which fits around the end of the tile which stands perpendicular and in which the meter is located, and the metal lid which sits in the rim. "When in place the top of the cover was about flush with the surface of the ground. The total weight of the rim and lid was 51 pounds, the lid weighing 13 pounds. There were no fastenings holding the lid in the rim but when it was fully seated in the rim it fitted fairly snug. On the lower side of the lid there were eight lugs approximately an inch in length which were located near the outer edge of the rim. Defendant contends that when the lid was seated in the rim the lugs prevented it from tilting or rising when pressure was unevenly applied on the upper surface. When the lid was seated in the rim its upper surface was about even with the upper surface of the rim. To remove the lid from the rim it had to be raised upward at least even with the upper surface of the rim.

Plaintiff testified that at the time of the accident it was dark, that she started to cross the walk and stepped on the lid, that it gave way beneath her weight, permitting her left leg to go down into the meter box and causing her to fall. Witness Foal called by the plaintiff, stated that he heard plaintiff moaning and crying, that he went to the scene of the accident and assisted her from the hole and into her house, that at that time the lid was about 15 inches from the meter box.

It is conceded that defendant’s employee, John Schrand, read this meter about 11 ;30 the date of the accident, he testified that he lifted the lid by means of a special rod he carried for that purpose, that after reading the meter and making a record of the same he replaced the lid in the rim and stepped on it with one foot to make certain that it was secure.

Ralph Smith called by the plaintiff stated that he saw Schrand reading the meter, that Schrand lifted the lid, recorded the reading and then started a conversation with a passer-by giving the lid a push "with his foot. Smith also testified that he left the vicinity of the meter box before Schrand, that when he returned an hour later the lid over the meter box was up an inch and a half or two inches and that he pushed it down with his foot.

The lid and rim were exhibited to the jury and various demonstrations were made by both parties in explanation "as to the position the lid would have to be before it could be tilted by a person stepping on it.

Foal testified that after he assisted plaintiff into her home he returned to the meter box and placed the lid in the rim and tried without avail to tilt the lid by stepping on it. Witness Thompson testified that the day following the accident the lid was raised on one side about an inch, that he stepped on it and that it was dislodged and slid out of the rim. Defendant’s witness, Ridgeway, testified that he was supervisor of the meter department of the defendant, that several years prior to the accident he designed the coverings for defendant’s meter boxes and that the one in question was of such type, that when the lid was fully seated in the rim it would not tilt or move when a person stepped on it. He admitted that if the lid was raised on one side three-quarters of an inch or more it would be possible to tilt it.

There is no evidence tending* to prove any defect in the lid or rim or any fault in the construction or type of cover used, neither is there any evidence tending to prove that the lid was raised at the time of the accident by reason of accumulation of dirt or other foreign substance in the rim.

The evidence shows that plaintiff’s fall was caused by the lid tilting and the evidence is conclusive that the lid would not tilt or slip from the cover by a person stepping on it unless it was raised from the seat in the rim on at least one side. From these deductions it follows that the query is what caused the lid to raise permitting it to tilt when plaintiff stepped on it. Plaintiff’s witness Smith, first testified to a state of facts that would tend to prove that Schrand when reading the meter was negligent in the replacement of the lid but Smith also testified that after Schrand replaced the lid he (Smith) found it raised and pushed it down with his foot. Smith’s action in pushing the lid into place cut off all causal connection between Schrand’s negligent act and the injury so that Schrand’s negligence could not have been the proximate cause of the lid tilting. There is no other evidence that defendant or its employees did anything to the lid after Smith pushed it down and before plaintiff’s accident. Therefore there is no evidence which tends to prove plaintiff’s charge that defendant negligently and carelessly permitted the cover to become defective and loose.

Plaintiff urges in the alternative that even though it may be considered that there is no evidence tending to prove the negligence of the defendant that the doctrine of res ipsa loquitur applies and that the motion for a directed verdict should have been overruled on that theory.

The doctrine of res ipsa loquitur is grounded upon the principle that whenever a thing which produces an injury is shown to have been under the control and management of the defendant and the occurence is such as in the ordinary course of events does not happen if due care has been exercised, the fact of injury itself will be deemed to afford prima facie evidence to support a recovery in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care. The presumption or inference of negligence raised by the application of this doctrine is not absolute or conclusive but is rebuttable, and vanishes entirely when any evidence appears to the contrary. Bollenbach v. Bloomenthal, 341 Ill. 539.

As pointed out the direct cause of the lid tilting was the fact that it was raised out of its seat in the rim. The mere fact that plaintiff fell by stepping on the manhole covering does not make the doctrine of res ipsa loquitur applicable. The inference of negligence must arise not from the mere fact that plaintiff was injured but from the circumstances under which it occurred. Since the evidence shows that the lid would not have tilted unless it had been raised from its seat in the rim then we can only conjecture as to what caused it to be raised. Smith having pushed it down, it could only have been raised by force and there is nothing in the evidence or circumstances surrounding the injury that warrants the inference that that force was applied by defendant or its employees. It cannot be logically said that the fact that the defendant by its answer admitted that it owned and controlled the covering over the meter box, that therefore the inference arises that it negligently raised the lid making it possible for it to tilt. Neither can it be said that an inference of negligence arises from the fact that defendant did not make an examination of the lid between the time when Smith pushed it down and when the accident happened nine hours later.

One of the essential elements of the' doctrine of res ipsa loquitur is that it must appear that the one whose negligent act has caused the injury had such control and management over the instrumentalities causing the injury that the defendant would be in a better position to explain the cause of the act causing the injury than the person injured and the burden is cast on the defendant to explain it and to show it was not his negligence that caused the injury. Under the evidence in this case the defendant was in no better position to know what caused the lid to rise than was the plaintiff.

Furthermore if the facts and circumstances are sufficient to raise an inference of negligence then it must also show at least by inference that such negligence was the act of the defendant otherwise the negligence of the defendant does not become the proximate cause of the injury. In this case there may be an inference that some one was negligent in leaving the lid raised but no inference arises that the lid was raised by the defendant to the exclusion of an outside agency.

The motion for a directed verdict was properly allowed.

Plaintiff’s proposed amendment to her complaint was unnecessary in a consideration of the questions raised on the motion for a directed verdict. The application of the rule of res ipsa loquitur was a matter of evidence and not of pleading. Plaintiff’s original complaint contained the allegation that there was a duty resting on the defendant to use due care in the keeping of said covers in place on said manhole and it was followed by the allegation that by reason of the defective and loosened condition of the cover plaintiff was injured. The proposed amendment could not have aided plaintiff’s case on the questions raised on the motion of a directed verdict.

The judgment of the trial court is affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Friend

text:
    First District.
    Joseph Corsiglia et al., complainants below, v. Madelene M. Brown et al., defendants below. Charles L. McPartlin, appellant, v. Norman Asher, appellee.
    Gen. No. 39,416.
    Opinion filed December 31, 1937.
    Rehearing denied June 23, 1938.
    William S. Palmer, Jr., for appellant. McFarland, Morgan & Stearns, for appellee; James H. McFarland and Everett W. Hostetter, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


author: Mr. Justice McSurely

text:
    Minnie Hiatt, appellee, v. Cummings Savings and Loan Association and Alfred H. Moyer, appellants.
    Gen. No. 39,944.
    Opinion filed April 25, 1938.
    Samuel Berke, for appellants; Mayer Goldberg, of counsel. McDonald & Richmond, for appellee; Lyle L. Richmond, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Tillie Ambrose, appellee, v. Sophie Saweikis and Stanley Saweikis, appellants.
    Gen. No. 39,973.
    Opinion filed April 25, 1938.
    Sinon A. Murray and Louis A. Rosenthal, for appellants; Louis A. Rosenthal, of counsel. Gregory & MeGehee and Silvio E. Piacenti, for appellee; Francis E. Cash, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Justice Matchett

text:
    Rose Minx, appellant, v. Bernice Yenerich and Mrs. B. G. Yenerich, appellees.
    Gen. No. 39,923.
    Opinion filed April 25, 1938.
    Martin Rothman, for appellant. Robertson, Crowe & Spence, for appellees; Burt A. Crowe, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    In re Estate of Michael DeMarchi, deceased. Charles DeMarchi, administrator of estate of Michael DeMarchi, deceased, appellee, v. William J. Hannan, individually and as administrator of estate of Carrie DeMarchi, deceased, appellant.
    Gen. No. 38,891.
    Opinion filed May 3, 1938.
    Wheelock, Newey & Mackenzie and Elmer E. Abrahamson, for appellant. Otto Ade Arnston, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    Emily Brosseit, appellee, v. August W. Nimtz, appellant.
    Gen. No. 39,333.
    Opinion filed May 3, 1938.
    Barrett, Barrett, Costello & Barrett, for appellant; Chester D. Kern, of counsel. Mitgang & Baskin, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    Louis Deitch, appellant, v. Samuel Rubenstein, appellee.
    Gen. No. 39,632.
    Opinion filed May 3, 1938.
    James K. Miller and William A. Morrow, for appellant; Walter M. Fowler and Robert L. Elliott, Jr., of counsel. Miller, Gorham, Wescott & Adams, for appellee; Herbert C. De Young, Charles F. White and Robert E. English, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    John Mourin, appellee, v. Metropolitan Life Insurance Company, appellant.
    Gen. No. 39,737.
    Opinion filed May 3, 1938.
    Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and William S. Allen, of counsel. Julius H. Selinger and William J. Kriz, for appellee; Julius H. Selinger, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    Samuel G. Currey, appellee, v. Emmett B. Blackwell, Sr. et al., appellants.
    Gen. No. 39,749.
    Opinion filed May 3, 1938.
    Rehearing denied May 17, 1938.
    White, Gaines & Mosely and Macon H. Huggins, for appellants. Burke, Jackson & Burke, for appellee; Edmund W. Burke and William M. James, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    The Apple-Cole Company, appellee, v. Harry C. Maibohm, appellant.
    Gen. No. 39,787.
    Opinion filed May 3, 1938.
    England, O’Toole & Kays, for appellant. Walter F. Boye and Henry J. Hughes, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    John Shimmer and Violet Feldmann, trading as Thor Press, appellants, v. Henry Spero, trading as Type and Press of Illinois, and Bazner Press, Inc., appellees.
    Gen. 39,799.
    Opinion filed May 3, 1938.
    Gilbert, Rommel & Hutchins, for appellants; Evert O. Hutchins, of counsel. Lawrence J. West, for certain appellees. Leo Spira, for certain other appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    Charles H. Albers, appellee, v. Herman F. Redeker et al., defendants. Mina Redeker, appellant.
    Gen. No. 39,836.
    Opinion filed May 3, 1938.
    H. J. Thal, for appellant. Chetlain & Chetlain, for appellee; Philip W. Yager, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    August Fendrich and Reinhold Fendrich, appellants, v. Charles Koziol and Charles Koziol, Jr., appellees.
    Gen. No. 39,880.
    Opinion filed May 3, 1938.
    M. J. Myer, for appellants. John J. Flanagan, for appellees.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


author: Mr. Justice John J. Sullivan

text:
    Thelma Roberts Campbell, appellee, v. Horace Brand Building Corporation et al., defendants. Appeal of Horace Brand Building Corporation, appellant.
    Gen. No. 39,362.
    Opinion filed May 3, 1938.
    Schein & Beckwith, for appellant. George E. Wickens and Franklin D. Trueblood, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    People of the State of Illinois, appellee, v. Anna Wagman, appellant.
    Gen. No. 39,369.
    Opinion filed May 3, 1938.

      Thomas Marshall and F. L. Fairbank, for appellant. Thomas J. Courtney, State’s Attorney, for appellee; Jacob Shamberg, William P. Kearney, Manuel E. Corven and Meal J. McAuliffe, Assistant State’s Attorneys, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    Chicago Securities Corporation, appellant, v. Clarence J. Olsen et al., defendants below. Charles H. Albers, appellee.
    Gen. No. 39,421.
    Opinion filed May 3, 1938.
    Vernon R. Loucks and A. J. Hennings, for appellant; Richard W. Proctor, of counsel. Litsinger, Healy, Reid & Bye, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    Max Goldstein, appellee, v. Elick Phillips and Phillips Jewelry Store, Inc., appellants.
    Gen. No. 39,681.
    Opinion filed May 3, 1938.
    Dana R. Simpson, for appellants. Golan, Blumenthal & Golan, for appellee; Samuel L. Golan and Leo A. Miller, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    William H. Terrell, appellee, v. George H. Wilson, appellant.
    Gen. No. 39,701.
    Opinion filed May 3, 1938.
    Zedrick T. Braden, Houston H. Hall and George S. Barnes, for appellant. Henry C. Ferguson, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


author: Mr. Presiding Justice Hebel

text:
    Maria Laskowski, also known as Maria Balaban, appellant, v. Erwin E. Cowen, appellee.
    Gen. No. 39,359.

      Opinion filed May 11, 1938.
    L. A. Sherwin, for appellant; Earl C. McCarthy, of counsel. Erwin E. Cowen, pro se.

   Mr. Presiding Justice Hebel

delivered the opinion of the court.


text:
    Mary Flanagan et al., appellants, v. Madison Square State Bank et al., defendants below. Carl F. Kuehnle, Jr., appellee.
    Gen. No. 39,718.
    Opinion filed May 11, 1938.
    Aaron Soble, John C. DeWolfe and Robert E. Dowling, for appellants; Max Chill, of counsel. Lawrence J. West, for appellee.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.


text:
    Mary Flanagan et al., appellants, v. Madison Square State Bank et al., defendants below. Louis Steinbrecher, appellee.
    Gen. No. 39,720.
    Opinion filed May 11, 1938.
    Aaron Soble, John DeWolfe and Robert E. Dowling, for appellants; Max Chill, of counsel. Russell, Murphy & Pearson, for appellee.'
   Mr. Presiding Justice Hebel

delivered the opinion of the court.


text:
    Mary Flanagan et al., appellants, v. Madison Square State Bank et al., defendants below. John T. Kerwin, appellee.
    Gen. No. 39,721.
    Opinion filed May 11, 1938.
    Aaron Soble, John C. DeWolfe and Robert E. Dowling, for appellants; Max Chill, of counsel. Concannon, Dillon, Bostelman & Snook, for appellee John T. Kerwin.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.


text:
    People of State of Illinois ex rel. Oscar Nelson, v. Chicago Lawn State Bank. Charles H. Albers, appellee, v. Stiefel Furniture Company, appellant.
    Gen. No. 39,747.

      Opinion filed May 11, 1938.
    Kern, Stiefel & Stiefel, for appellant; Jacob J. Kern and Charles W. Stiefel, Jr., of counsel. Norman C. Barry, for appellee; Sylvester J. Cotter, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.


text:
    Paul Gauthier, appellee, v. Steve J. Maciejewski, appellant.
    Gen. No. 39,762.
    Opinion filed May 11, 1938.
    Martin H. Finneran, for • appellant. John Edward Pavlik and Arthur A. Sullivan, for appellee.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.


text:
    Norman Nicholson, appellee, v. Ernest T. Kurzdorfer and Rose Varga, defendants. Appeal of Ernest T. Kurzdorfer, appellant.
    Gen. No. 39,809.
    Opinion filed May 11, 1938.
    Rehearing denied May 26, 1938.
    Ernest A. Eklund, for appellant; John N. Thornburn, of counsel. Thompson, Chambers & Thompson, for appellee; Pereival E. and Lavem W. Thompson, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.


text:
    Jules Eichenbaum, appellant, v. State and Quincy Building Corporation et al., defendants. Isa W. Kahn et al., appellees.
    Gen. No. 39,829.
    Opinion filed May 11, 1938.
    Shulman, Shulman & Abrams, for appellant; Meyer Abrams, of counsel. D ’Ancona, Pflaum & Kohlsaat, for appellee Isa W. Kahn.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.


text:
    Harry J. O’Rourke, appellant, v. Mary C. O’Rourke, appellee.
    Gen. No. 39,852.

      Opinion filed May 11, 1938.
    Rehearing denied May 26, 1938.
    Winston, Strawn & Shaw, for appellant; John D. Black, Arthur D. Welton, Jr., and James H. Cartwright, of counsel. McKinney, Folonie & G-rear, for appellee; Hayes, McKinney and Thomas M. Kavanagh, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.


author: Mr. Justice Hall

text:
    Georgine Wheaton, minor by Kathryn Wheaton, her mother and next friend, appellee, v. Goldblatt Brothers, Inc., appellant.
    Gen. No. 39,729.
    Opinion filed May 11, 1938.
    Philip A. Weinstein, for appellant. Alexander Rothstein, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Clarence W. Edinger et al., plaintiffs below, and Clarence W. Edinger, appellee, v. Clarence F. Edinger et al. Appeal of Dorothy Realty and Investment Company, appellant.
    Gen. No. 39,750.
    Opinion filed May 11, 1938.
    Rehearing denied May 26, 1938.
    Fred J. Loyda, for appellant; Miles Wlodek, of counsel. Charles J. Trainor, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Mary C. Nolan, appellee, v. Robert J. Koeppe, appellant.
    Gen. No. 39,765.
    Opinion filed May 11, 1938.
    Townley, Campbell, Clark & Miller, for appellant; J. Arthur Miller and Glenn G. Paxton, of counsel. Stebbins, McKinley & Price, for appellee; Paul E. Price and Louis Dennen, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    In the Matter of the Estate of W. E. Rhodes, deceased. Alyce W. Schaefer, appellant, v. Martin J. O’Brien, administrator de bonis non of estate of W. E. Rhodes, deceased, appellee.
    Gen. No. 39,788.

      Opinion filed May 11, 1938.
    V. D. McConnell, for appellant. David Fisher and Max A. Kopstein, for appellee; Howard D. Moses, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    State Mutual Life Assurance Company, appellee and cross appellant, v. Jean S. Rath et al., defendants below, Norman A. Stilwell, appellee and cross appellee. Appeal of David P. Stearns and Alberta N. Stearns, appellants.
    Gen. No. 39,800.
    Opinion filed May 11, 1938.
    Rehearing denied May 26, 1938.
    Collins, Holloway & Kelly and S. E. Quindry, for appellants; S. E. Quindry and John Tone Kelly, of counsel. Brown, Fox & Blumberg, for certain appellee. Defries, Buckingham, Jones & Hoffman, for certain other appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    City of Chicago, appellee, v. John Sengstacke, appellant.
    Gen. No. 39,812.
    Opinion filed May 11, 1938.
    James B. Cashin, for appellant; Thomas P. Harris and Edward B. Toles, of counsel. Barnet Hodes, Corporation Counsel, for appellee; Alexander I. Resa and Arthur Chittick, Assistant Corporation Counsel, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


author: Mr. Justice Denis E. Sullivan

text:
    Charlotte Gadsky and Greta Gadsky, appellants, v. H. R. Bentley and Seneca Petroleum Company, appellees.
    Gen. No. 39,656.
    Opinion filed May 11, 1938.
    H. Kay George, for appellants; Clyde C. Fisher, of counsel. George C. Bliss, for appellees.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Sergeant, Mitchell and Mathis, Inc., appellant, v. Mavar Fish and Oyster Company, appellee.
    Gen. No. 39,753.

      Opinion filed May 11, 1938.
    William K. Tell and John W. Dorgan, for appellant. Rosenberg, Toomin & Stein, for appellee; Leonard P. Aries, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    City of Chicago, appellee, v. Scott Peterson Corporation, appellant.
    Gen. No. 39,838.
    Opinion filed May 11, 1938.
    Thomas H. Riley, for appellant. Barnet Hodes, Corporation Counsel, for appellee; David Lefkovits and J. Herzl Segal, Assistant Corporation Counsel, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Victoria Ellinger, by John Ellinger her father and next friend, appellee, v. Astrid M. Paulson, appellant, and Edward A. Holstein, defendant.
    Gen. No. 39,860.
    Opinion filed May 11, 1938.
    Rehearing denied May 26, 1938.
    Hinshaw & Culbertson, for appellant; Oswell G. Treadway, of counsel. Owens & Owens, for appellee; Thomas L. Owens and Vincent G. Rinn, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Benjamin G. Kilpatrick, appellee, v. Joseph Schmitt et al., defendants. Appeal of Florence M. Woolley and William P. Doerr, appellants.
    Gen. No. 39,907.
    Opinion filed May 11, 1938.
    Ela, Grover & March, for appellants. Kirkland, Fleming, Green, Martin & Ellis, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


author: Mr. Presiding Justice O’Connor

text:
    Robert P. Gust Company, Inc., appellant, v. Kip Corporation, appellee.
    Gen. No. 39,638.

      Opinion filed May 16, 1938.
    Edward H. S. Martin and John B. King, for appellant. Hagenah & Flynn, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Esther Fischer, appellee, v. Leonard E. Kluck, appellant.
    Gen. No. 39,654.
    Opinion filed May 16, 1938.
    Rehearing denied May 31, 1938.
    Beverly & Klaskin, for appellant; Samuel T. Klaskin, of counsel. Vetter & Jacobs, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Muriel Dupuis, appellee, v. Goldblatt Brothers, Inc. and Lustig Brothers Beauty Parlors, Inc., appellants.
    Gen. No. 39,919.
    Opinion filed May 16, 1938.
    Philip A. Weinstein, for appellants. Pattison & Vise, Philip Rosenthal and Thomas S. MaeKinlay, for appellee; Thomas S. MacKinlay and Herbert J. Greenberg, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    In the Matter of Estate of Edith Rockefeller McCormick, deceased. Appeal of Maurice B. Rissman et al., appellants, v. Chicago Title and Trust Company, executor under last will and testament of Edith Rockefeller McCormick, deceased, and McCormick Memorial Institute for Infectious Diseases, appellees.
    Gen. No. 39,516.
    Opinion filed May 16, 1938.
    Wilhartz & Hirseh and Poppenhusen, Johnston, Thompson & Raymond, for appellants; Edward R. Johnston, Samuel E. Hirseh, Albert E. Jenner, Jr., Julian H. Levi, J. S. Greenberg, Eugene H. Nirdlinger and Samuel W. Block, of counsel. Sidley, McPherson, Austin & Burgess, for certain appellee; Edwin C. Austin, Douglas F. Smith, Merritt C. Bragdon and James W. Goultrap, of counsel. Tenney, Harding, Sherman & Rogers, for certain other appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Alice Jean Halladay, appellee, v. Olympia Fields Country Club, appellant.
    Gen. No. 39,951.
    Opinion filed May 16, 1938.
    Hinshaw & Culbertson, for appellant; Oswell G. Treadway, of counsel. Gardner, Carton & Douglas, for appellee; Erwin W. Roemer and M. Morton, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Edward P. Hoff et al., appellants, v. L. H. Heymann et al., appellees.
    Gen. No. 39,455.
    Opinion filed May 16, 1938.
    Shulman, Shulman & Abrams and Rosenfeld & Bromberg, for appellants; Meyer Abrams, of counsel. John M. Lee and Carl M. Loos, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Justice Huffman

text:
    Second District.
    Frank Raduenz, appellee, v. J. F. Kelley, trading as J. F. Kelley Motor Sales, appellant.
    Gen. No. 9,236.
    Opinion filed February 15, 1938.
    Rehearing denied May 3, 1938.
    John K. Newhall and David B. Givler, for appellant. Alschuler, Putnam & Johnson, for appellee; Clarence J. Ruddy and Edward F. Streit, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.


author: Mr. Presiding Justice Dove

text:
    City of Sterling, appellee, v. Frank Berry, appellant.
    Gen. No. 9,279.
    Opinion filed March 31, 1938.
    Rehearing denied June 14, 1938.
    Sheldon & Brown, for appellant. W. J. Stevens and Ward, Ward & Scheineman, for appellee.
   Mr. Presiding Justice Dove

delivered the opinion of the court.


author: Mr. Justice Wolfe

text:
    Dixie Dairy Company, appellant, v. Henry Schultz, appellee.
    Gen. No. 9,237.
    Opinion filed March 31, 1938.
    Rehearing denied May 6, 1938.
    Elmer H. Bielfeldt and Savage & Holbrook, for appellant. Frank J. and James T. Burns, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    George Ahrens and Bertha Ahrens, appellees, v. Clay Hopper and Lena Hopper, appellants.
    Gen. No. 9,268.
    Opinion filed April 28, 1938.
    Albert H. Krusemark, for appellants. Sidney E. Baskin, for appellees.
   Mr. Presiding Justice Dove

delivered the opinion of the court.


text:
    C. K. Anderson, appellee, v. Hattie A. Chinn and Percy E. Chinn, appellants.
    Gen. No. 9,271.
    Opinion filed April 28, 1938.
    Rehearing denied June 2, 1938.
    Chancellor & Chancellor, for appellants; Okel S. Fuqua, of counsel. Runyard & Behanna, for appellee; William R. Behanna, of counsel.
   Mr. Presiding Justice Dove

delivered the opinion of the court.


text:
    Marvin John Prien, minor, by his father and next friend, Laurence Prien, appellant, v. C. J. Wieck, appellee.
    Gen. No. 9,281.
    Opinion filed April 28, 1938.
    B. Jay Knight and John E. Goembel, for appellants; Walker F. Hull, of counsel. Louis H. Burrell and David M. Burrell, for appellee.
   Mr. Presiding Justice Dove

delivered the opinion of the court.


text:
    Daniel Faust and Byrda Abbott, appellants, v. Bartholomaus S. Steidinger et al., appellees.
    Gen. No. 9,282.

      Opinion filed April 28, 1938.
    Rehearing denied June 2, 1938.
    Tuesburg & Armstrong and Adsit, Thompson & Herr, for appellants. H. G. Greenebaum, Ray Sesler and F. A. Ortman, for appellees.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    Fred Burren, appellant, v. Albert W. Koch, appellee.
    Gen. No. 9,278.
    Opinion filed April 28, 1938.
    Ranstead S. Lehmann, Geo. D. Carbary and Almore H. Tesehke, for appellant. Frank A. Oakley and Welsh & Welsh, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Marr, Green and Company, appellee, v. Village of Grays Lake, appellant.
    Gen. No. 9,292.
    Opinion filed April 28, 1938.
    R. W. Churchill, for appellant. Daniel S. Wentworth, George P. Novak and Leon Weiss, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Martin Verna, administrator of estate of Peter Verna, deceased, appellee, v. Irene Moffat, executrix of estate of George Moffatt, deceased, appellant.
    Gen. No. 9,233.
    Opinion filed May 10, 1938.
    Burke & Schenk, for appellant. Pence B. Orr, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


author: Mr. Presiding Justice Pulton

text:
    Third District.
    R. J. Shotwell and J. P. Shotwell, appellants, v. Robert P. Tate, appellee.
    Gen. No. 9,106.

      Opinion filed April 20, 1938.
    Hal M. Stone, for appellants. William. J. and William R. Bach, for appellee.
   Mr. Presiding Justice Pulton

delivered the opinion of the court.


text:
    People for use of U. G. Usher and Nick Kish, appellees, v. Erma Templeman and Fred A. Ebinger, appellants.
    Gen. No. 9,086.
    Opinion filed April 20, 1938.
    J. W. Templeman, for appellants. Gerald G. Ginnaven, for appellees.
   Mr. Presiding Justice Pulton

delivered the opinion of the court.


author: Mr. Justice Riess

text:
    Warner W. Hurst, appellee, v. Horatio C. Bent, appellant.
    Gen. No. 9,109.
    Opinion filed April 20, 1938.
    William R. and William J. Bach, for appellant. Wayne C. Townley and J. Oscar Hall, for appellee.
   Mr. Justice Riess

delivered the opinion of the court.


text:
    Fourth District.
    Leslie Stanton, appellee, v. David R. Komm et al., appellants.
    Opinion filed June 6, 1938.
    Farmer, Klingel & Baltz, for certain appellant. Louis Beasley and Edward C. Zulley, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.


text:
    Fidelity and Deposit Company of Maryland, Appellant, v. Kenneth J. Stanford, Appellee.
    Gen. No. 40,044.
    Opinion filed June 13, 1938.
    Kjggins & Jones, of Chicago, for appellant; Hiram T. Gilbert, J. T. Kiggins and R. D. J ones, of Chicago, of counsel.
    No appearance for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against the defendant to recover on a judgment for $1,285.42, entered by a New York court, which judgment plus interest and costs amounted to $1,812.44 at the time of the filing of the suit. Defendant was served with summons but failed to appear or answer, and was defaulted. Afterward, on June 3, 1937, judgment was entered against him for the amount of the claim. November 17, 1937, defendant filed his petition in which he alleged that the municipal court of Chicago was without jurisdiction to entertain the action because the suit was on a foreign judgment exceeding $1,000, and reference was made to section 2 of the Municipal Court Act (par. 357, ch. 37, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 108.028]). The next day plaintiff filed an answer to the petition and on the same day an order was entered which recites that the defendant’s motion to vacate the judgment came on to be heard and the matter was continued until November 22; an order was entered on that day sustaining defendant’s motion and dismissing plaintiff’s suit at its costs, and it prosecutes this appeal.

The defendant has not appeared in this court. The question for decision, as presented by counsel for plaintiff in their brief, is, Has the municipal court of Chicago jurisdiction in an action based on a foreign judgment exceeding $1,000?

Section 2 of the Municipal Court Act provides: “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 the plaintiff, exclusive of costs, exceeds one thousand dollars ($1,000).”

In Brown v. Gerson, 182 Ill. App. 177, it was held that section 2 of the Municipal Court Act, which at that time (1912) provided that the municipal court of Chicago should have jurisdiction of “all actions on contracts, express or implied,” did not confer jurisdiction to maintain an action based on a judgment entered by the circuit court of Cook county.

In People v. Dummer, 274 Ill. 637, two suits in debt, as cases of the first class, were brought in the municipal court of Chicago against the defendant for taxes alleged to be due on defendant’s personal property. There was a trial and judgment in plaintiff’s favor for more than $19,000, and the defendant appealed. One of the points urged for reversal was that the municipal court had no jurisdiction of the action. The contention was upheld and the judgment reversed. That case was decided in 1916, at which time the provision of section 2 of the Municipal Court Act was the same as it was when the Appellate Court decided Brown v. Gerson. Section 2 of the Municipal Court Act, which was in effect at the time of the decisions in the two cases mentioned, was amended by an act of the legislature in. 1931, which was adopted by the voters in 1932. That section, so far as pertinent here, as amended is: “ 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 the plaintiff, exclusive of costs, exceeds one thousand dollars ($1,000).” The words we have italicized were added by the amendment. The amendment to section 2 which changed the words “actions on contracts, express or implied,” to “actions on contracts, express or implied, whether implied in law or implied in fact,” must be given some effect. We must assume that when the amendment was passed by the legislature it knew the existing law and that its purpose in enacting the amendment was to make some change in the former law. Sylvester v. Buda Co., 281 Ill. App. 139.

By sec. 1, ch. 28, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 27.12], the common law of England was, with certain exceptions, declared the law of this State, and is the law at the present time except in so far as it has been repealed by legislative authority or changed or modified by custom as found in decisions of our courts. Sylvester v. Buda Co., 281 Ill. App. 139. Blackstone in his Commentaries says (vol. 3, pp. 159-60): “From these express contracts the transition is easy to those that are only implied by law. Which are such as reason and justice dictate, and which, therefore, the law presumes that every man has contracted to perform, and upon this presumption makes him answerable to such persons as suffer by his non-performance.

“Of this nature are, first, such as are necessarily implied by the fundamental constitution of government, to which every man is a contracting party. And thus it is that every person is bound, and hath virtually agreed to pay such particular sums of money as are charged on him by the sentence, or assessed by the interpretation of the law. . . . Whatever, therefore, the laws order any one to pay, that becomes instantly a debt which he hath beforehand contracted to discharge. And this implied agreement it is that gives the plaintiff a right to institute a second action, founded merely on the general contract, in order to recover such damages, or sum of money, as are assessed by the jury and adjudged by the court to be due from the defendant to the plaintiff in any former action. So that if he hath once obtained a judgment against another for a certain sum, and neglects to take out execution thereupon, he may afterward bring an action of debt upon this judgment, and shall not be put upon the proof of. the original cause of action; but upon showing the judgment once obtained, still in full force, and yet unsatisfied, the law immediately implies that, by the original contract of society, the defendant hath contracted a debt, and is bound to pay it.” We think adding the words, “whether implied in law” to section 2 of the.Municipal Court Act (that court prior to the amendment having had jurisdiction of 1‘ actions on contracts, express or implied”) invested the municipal court with jurisdiction to maintain an action based on a foreign judgment, because, as Blackstone says, where a judgment has been obtained and not satisfied, “the law immediately implies that, by the original contract of society the defendant hath contracted a debt, and is bound to pay it.”

We hold that the municipal court had jurisdiction of the action, and the judgment of that court dismissing the suit is reversed and the cause remanded with directions to reinstate the judgment in favor of plaintiff and against defendant.

Reversed and remanded with directions.

McSurely and Matchett, JJ., concur.


text:
    Frank A. Stateman, Appellee, v. Travelers Casualty Insurance Company, Appellant.
    Gen. No. 40,071.

      Opinion filed June 13, 1938.
    Meyer A. Ginsburg, of Chicago, for appellant.
    No appearance for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action on a policy of insurance issued to him by defendant to recover $80 — $20 a week for four weeks — claiming he had been permanently disabled by an accidental injury suffered while the policy was in effect. The case was tried before the court without a jury, there was a finding and judgment in plaintiff’s favor for the amount of his claim, and defendant appeals.

The record discloses that October 9, 1936, while the policy was in force and effect, plaintiff suffered an accident in which his right leg was injured, and as a result of the injury he was totally disabled from October 30,1936, to December 24, 1936. Plaintiff’s leg was put in a cast on October 27, and the cast was not removed until December 10, during all of which time he was actually and continuously confined to his home.

Plaintiff has not appeared in this court, apparently because of the expense and the small amount involved.

Defendant contends that the judgment should be reversed because “The material misrepresentations . . . as to a previous infirmity of varicose veins and which was by him denied in his application for an insurance policy with the defendant is such a material misrepresentation as to void the policy. At the trial of the cause it was stipulated and agreed between the parties that plaintiff had been suffering from varicose veins prior to his application for insurance with defendant. ’ ’ In his application plaintiff agreed “to pay a policy fee of $5 and $1 per month thereafter.” The application contained the following question and answer: ‘112. Have you ever had paralysis, fits of any kind, or brain disorder, diabetes, hernia, varicose veins, or any bodily or mental infirmity, injuries or wounds, or suffered the loss of a limb or eye? No.”

Plaintiff, 53 years old, was a truck driver for Swift & Co., for 32 years. The application was not signed by the applicant, but his name was signed by his wife. He was injured “Getting on truck when bumped leg against running board”; he was treated by Dr. Schallenberger, physician for Swift & Co.

We think the question whether plaintiff made a false answer as to his health was not presented to the trial court for decision. The record discloses that when counsel were stipulating the facts and introducing the policy and other documents in evidence, counsel for plaintiff said defendant contended “that on that one question and answer in the application the man said he did not have varicose veins and now they contend that he did have, and we admit he did have. He didn’t sign the application. Therefore, it is binding on the company.” Counsel for defendant replied, “The real contention in this matter I believe is overlooked by counsel for the plaintiff. You will notice that the policy attempts to define what shall constitute disability as to allow him to recover.” He then read from a provision of the policy, which will be hereinafter referred to, which he contended provides that total disability must immediately follow the injury; and the latter point was the one defense made. But even if we assume that the point was properly saved, we think defendant’s contention cannot be sustained for the reason that plaintiff did not sign the application. It was signed by his wife, and defendant saw fit to issue the policy and collect the premium without further information. Furthermore, there was no evidence that the varicose veins in any manner caused plaintiff to be totally disabled, as counsel for defendant contends. He bases his contention on the sworn statement made by the attending physician, Dr. Schallenberger in the blank of defendant Insurance Company submitted to him, in which he answered questions as to' his treatment of plaintiff and what he found.

The question and answer relied upon are as follows: “Is the claimant now, or has he ever been affected by, or subject to any previous injury, or any constitutional or local disease, deformity, infirmity or weakness, either acute or chronic? If so, to what extent did the same contribute to cause the accident or prolong or increase the disablement? Varicose veins in legs.” Counsel argues that this answer, made by the physician, “is a direct admission that the disability occasioned by the plaintiff was not independent and exclusive of all other causes.” A reading of the question and the answer made by the doctor, which we have quoted, shows that the answer is no answer at all. Two questions are included in question 20. One is, “has the applicant ever been affected or was he now affected by any previous injury or any constitutional or local disease,” etc.; the other is, “if so, to what extent did such injury or disease contribute to the accident?” The one answer was, “Varicose veins in legs,” which did not answer the questions at all. The alleged question 20 is so complicated that it could not be answered by any physician in the space of one line, provided for the purpose. Defendant having prepared the blank is in no position to urge the point made.

But defendant’s contention, as made on the trial, was that no recovery could be had because plaintiff was injured October 9, but did not become totally disabled until October 30, the policy providing that no recovery can be had unless plaintiff was totally disabled at the time of the injury.

Section 1 of the policy for “specific losses” provides: “If the Insured shall, through violent, external and accidental means, sustain bodily injuries as described in the Insuring Clause, which shall, independently and exclusively of sickness and all other causes, immediately, continuously and wholly disable the Insured from the date of the accident and result in any of the following specific losses within thirty days, the Company will pay, in lieu of all indemnity:” then follow the amounts to be paid for loss of life, both eyes, etc.

Section 3 provides, “If the Insured shall through violent, external and accidental means, independently and exclusively of all other causes, not sustain any specific losses as provided in Sections One and Two but shall become totally disabled and shall be actually, necessarily and continuously confined for not less than two successive weeks in the necessary charge of a legaily licensed physician who shall professionally attend the Insured at least once each seven days, the Company will pay indemnity at the rate of Twenty Dollars ($20.00) per week, beginning the eighth day after the commencement of such total disability and a like sum for each successive week during the continuance of such total disability.” Then follows sec. 4, where provision is made for “Confining Sickness Indemnity.” Following sec. 4 is the provision upon which defendant relies to relieve it of liability,- — - 61 Provided, however, that the only evidence of such total disability of the continuance thereof admissible in any action against the Company at law or in equity shall be proof of the actual, immediate, continuous and necessary confinement of the Insured.” From this provision counsel argues that since plaintiff was not immediately wholly disabled, having been injured October 9 and not totally disabled until October 30, there is no liability under the policy, and in support of this cites Merrill v. Travelers Ins. Co., 91 Wis. 329; Shambaugh v. Great Northern Life Ins. Co., 131 Neb. 415; Southern Surety Co. v. Penzel, 164 Ark. 365; Martin v. Travelers Ins. Co., 310 Mo. 411; Johnson v. Travelers Ins. Co., 269 N. Y. 401; Preferred Mut. Acc. Assoc. v. Jones, 60 Ill. App. 106, and Genna v. Continental Cas. Co., 167 Ill. App. 413. We think none of these cases is in point.

In the Merrill case, the accident happened August 18, 1893, and the insured became wholly disabled October 20, 1893. The policy insured plaintiff against loss of time resulting from bodily injury “which should independently of all other causes, immediately and wholly disable him from transacting any and every kind of business pertaining to his occupation.” It was held that plaintiff’s total disability having occurred after the injury, no recovery could be had.

In the Shambaugh case the policy provided that plaintiff would be paid insurance for bodily injuries if the insured was “continuously disabled . . . from the date of the accident,” and that since plaintiff sustained a scratch on the back of his neck on November 28 and did not become totally disabled until December 12, it was held there was no liability under the policy.

In the Penzel case, the Supreme court of Arkansas was called upon to construe an accident policy by which it was agreed to indemnify the insured if he was wholly disabled “from the date of the accident,” and it was held that since the insured did not become totally disabled until three days after he was injured, he could not recover.

In the Martin case, where the policy provided that, “If such injuries shall wholly and continuously disable the insured from date of accident, ’ ’ it was held that no recovery could be had where the insured became totally disabled three days after the accident.

In the Johnson case, the court of appeals of New York in construing an accident insurance policy, insuring plaintiff against loss of time resulting from accidental bodily injuries which shall “wholly and continuously disable the Insured from date of accident,” held plaintiff could not recover since the evidence showed that for five weeks after the accident he performed all the duties of his employment.

In the Jones case the Appellate Court of this State was called upon to construe an insurance policy providing for payment for accidental injuries “resulting from bodily injuries incurred . . . which shall, independently of all other causes, immediately, wholly and continuously disable him from transacting any and every kind of business pertaining to his occupation.” Plaintiff was accidentally injured by violently striking his head in passing through a cellar door, “but although suffering pain he continued to perform his duties as salesman for the space of five days,” when he became wholly disabled. It was held that no recovery could be had. „

In the Gevma case the insured was accidentally injured January 28, and the injury resulted in erysipelas from which the insured died February 7, following. The court held that since the policy provided that if the insured was accidentally injured and was totally disabled ‘ at once ’ ’ there was no liability.

It will be noted that each of the policies in the cases cited expressly provides that no recovery could be had unless the insured became totally disabled at the time of the injury, and that is the construction sought for by the defendant here. But we think the policy in question ought not to be so construed.

Section 1, from which we have above quoted, provides that if the insured was accidentally injured and became immediately wholly disabled, the company would pay, etc., while in section 3 of the policy, which we have quoted and which is the provision under which plaintiff seeks to recover here, it is provided that if the insured is accidentally injured and becomes totally disabled, etc., the insured will be indemnified at the rate of $20 a week. There is no provision that the total disability must occur at the time of the accident. Following section 3 is section 4, and following that is the provision on which defendant relies. That proviso is that “the only evidence of such total disability of the continuance thereof admissible in any action ... at law or in equity shall be proof of the actual, immediate, continuous and necessary confinement of the Insured. ’ ’ This provision attempts to control the admissibility of evidence in an action at law or suit in equity. Obviously a court cannot be controlled by any such provision. We have heretofore held that a policy of insurance should be short, plain, and not involved, (Kiefer Tanning Co. v. Alliance Ins. Co., 266 Ill. App. 362; Wisz v. Metropolitan Life Ins. Co., 277 Ill. App. 343; see also Kelley v. Boettcher, 85 Fed. 55); that insurance policies should be construed as other contracts if they are plain and unambiguous; but where ambiguous they are to be construed most strongly against the company which prepares and issues them. Jabara v. Equitable Life Ins. Co., 280 Ill. App. 147.

In the instant case there is no requirement in section 3 of the' policy that the insured must be totally disabled at the time of the accident before the company will be liable. Defendant seeks escape from liability by inserting a provision in this policy that attempts to control the admissibility of evidence in a court of justice. This cannot be done.

The judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

McSurely and Hatchett, JJ., concur.


text:
    N. Kenneth Hoffner and Anna Hoffner, Appellants, v. John Reinberg et al., Appellees.
    Gen. No. 40,073.

      Opinion filed June 13, 1938.
    Petition for rehearing stricken for impertinence June 27, 1938.
    Hershenson & Hershenson and James B. McKeon, both of Chicago, for appellants.
    Cummings & Wyman, of Chicago, for appellee John Reinberg; Austin L. Wyman, of counsel.

         See Callaghan’s Illinois Digest, same topic and section number.

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiffs brought an action for fraud and deceit against the three defendants who owned all the stock and who were the officers and directors of the Publix Realty Company, a corporation, charging that defendants falsely represented that the Publix Realty Co. was solvent and financially able to construct a home for plaintiffs and that it owned the necessary building material; that plaintiffs, relying upon the promises, entered into a written contract with the corporation whereby it was to construct a home for plaintiffs for $7,550, to be paid for by plaintiffs in instalments as the work progressed; that defendants fraudulently diverted, from time to time, moneys paid by plaintiffs and converted it to their own use and falsely and fraudulently represented that such moneys were being applied in payment of the building. Kreielsheimer was not served with process and did not enter his appearance. So far as the record discloses, defendant Rein-berg alone filed an answer, denying all charges of wrongdoing. December 16, 1937, the case was tried before the court without a jury; defendants were found “guilty of wilful and wanton conduct” and judgment was entered against them for $5,609.77. Afterward, on January 17,1938, defendant Reinberg alone filed a motion for a new trial, and on January 31 judgment was entered which recites that, “This cause coming on to be heard on motion of the defendants for a new trial . . . motion is allowed and a new trial awarded.

“It is therefore ordered that the judgment and special finding of malice heretofore entered herein on Dec. 16, 1937, be vacated and set aside and this cause transferred to the assignment judge for reassignment.” Afterward the petition of plaintiffs filed in this court for leave to appeal was allowed.

The record discloses that the Publix Realty Co. was incorporated under the laws of this State May 21,1936, with a capital stock of $1,200 divided into 12 shares of $100 each. The three defendants owned all the stock and were the officers of the corporation; Reinberg was president and treasurer, Keller vice-president, and Kreielsheimer secretary. The company maintained an office at 2445 Devon avenue, Chicago, and on the roof of the building there was a large sign, “Community Builders.”

Reinberg, called by plaintiffs under section 60 of the Civil Practice Act, testified: “I own the Publix Realty Company. I own eight shares of stock. Kreilsheimer had two and Keller had two. At the time the corporation was formed the assets consisted of furniture and some building materials. I put in $800; not all in cash, some office fixtures and equipment. The actual cash put into the corporation amounted to $800. I don’t remember whether it was $300. Keller didn’t put in any cash, but included his services. Kreielsheimer didn’t put any cash in.”

The evidence further shows that plaintiffs owned a lot in Chicago on which they desired to build a home, and after “shopping around” they on March 6, 1937, entered into a written contract with the Publix Realty Company, the contract being signed on behalf of the Realty Company by John Reinberg, president, whereby the Realty company agreed to build a 7-room brick residence for plaintiffs for $7,550, to furnish all material and complete the building free of liens by June 1,1937. The contract provided that plaintiffs make payments as follows: $250 upon the signing of the contract; $750 when concrete foundation is in; $800 when first floor joists are placed; $1,500 when ceiling joists are placed; $1,500 when “roof is boarded”; $1,000 when plastering is finished; $1,000 when the “bulk of trim” is erected; and the balance of the contract price — $750—when the work is completed; that the Realty Company proceeded to construct the building and plaintiffs made payments as specified; that when the payments were made the Realty Company gave plaintiffs waivers of liens; that plaintiffs had made payments aggregating $6,800; that shortly thereafter the Publix Realty Company was put into bankruptcy; the building was incomplete and a great many mechanic’s liens were presented and some filed; that subcontractors made claims amounting to more than $5,000; that plaintiffs were compelled to hire other persons to complete the building and settle with a number of claimants, so that the building cost them $5,609.77 more than the contract price. It was for this excess cost that the court entered judgment but which he afterward set aside. There is further evidence to the effect that during the time the Publix Realty Company was in business it constructed about 15 buildings ; that at the time it was put into bankruptcy the Realty Company was constructing buildings for three or four other persons, which were not completed, and claims for mechanic’s liens similar to the claims involved in the instant case were presented.

Reinberg further testified that the Mortar Supplies Company was a corporation, of which he was president; that the other officers were his wife and John Jarmuth, his father-in-law; that he served a notice of mechanic’s lien for materials furnished by the Mortar Company used in plaintiffs’ building, for $1,027.29; and the evidence shows he was threatening to foreclose this lien at about the time of the bankruptcy. He testified, “I knew that the demand was for $1,027.29 together with interest. I knew, as president of Publix Realty Company that Publix Realty Company had received the money and had not paid it to the Mortar Supplies Company.”

Four exhibits are in the record dated June 3, 1937, entitled, “Waiver of lien materials or labor,” addressed to “Whom it may concern,” in which it is recited, “Whereas, I, the undersigned, John Reinberg, doing business as Mortar Supplies Co., have been employed by the Publix Realty Co. to furnish cement for concrete walks, garage and basement” for plaintiffs’ building, and in consideration of one dollar he waived and released all claims of lien against the premises. The other three contain similar recitations but for different work on the same building.

Reinberg further testified that “the Mortar Supplies Company is at my residence. It is a yard”; that he never owned more than one share in the Mortar Company; that his wife owned one share and Jarmuth, his father-in-law, held the balance of the stock, $24,000.

On the trial of the case, and in Reinberg’s written motion for a new trial, he contended that plaintiffs were guilty of negligence because they did not require affidavits from the contractor as to the amounts due subcontractors, and therefore could not recover. This contention is now abandoned by counsel for Reinberg. Counsel now admits that Reinberg cannot set up the claimed negligence on the part of plaintiffs as a defense against any fraud that may have been committed by him. Obviously this is the law. Leonard v. Springer, 197 Ill. 532; Linington v. Strong, 107 Ill. 295.

Complaint is also made that the proof made by plaintiffs was insufficient to warrant the finding that defendants were liable for $5,609.77, as found by the court. The point was in no way saved. When the evidence was offered by plaintiffs on the trial, the only objection made by counsel who then represented Reinberg (but who does not represent him in this court) was that the exhibits offered by plaintiffs showed the several amounts of money paid, and that the claims for mechanic’s liens made by material men were self-serving and covered the same information contained in the documents already in evidence; and further, counsel for Reinberg said, “If it is for the purpose of showing amount of the claims and to assist counsel, I will withdraw my objection.” There was no objection on the trial that the several items were not correct. Plaintiffs were entitled, for $7,550, to a building complete and free from all claims, as the contract provided; since this was not done, defendants are liable for the amount plaintiffs were compelled to pay over and above the contract price.

Counsel for Eeinberg further contends that the court allowed a new trial probably because the evidence was wholly insufficient to show that Eeinberg or either of the other two defendants was guilty of any fraud or misrepresentation. Plaintiffs’ testimony is to the effect that at and prior to the execution of the contract for the construction of the building, defendants represented that the Publix Eealty Company had the necessary materials to construct the building, and upon payment of the contract price would turn it over to plaintiffs complete and free and clear of all liens. Counsel contend this evidence was contradicted by Eeinberg and by Keller. We think the evidence was clearly sufficient to warrant the trial judge in finding, as he did, in favor of plaintiffs on this question. There can be no doubt that Eeinberg controlled the Publix Eealty Company and owned and controlled, so far as this record is concerned, the Mortar Supplies Company. None of the defendants offered any evidence that the $6,800 paid by plaintiffs went toward the payment for the building. In fact some of the evidence shows that Eeinberg took part of this money to pay himself a salary. He, as the person who owned and controlled the Mortar Supplies Company, threatened to file suit to foreclose a lien of that concern for $1,027.29, all of which conduct throws light on the question of how much weight should be given to defendants ’ testimony that they did not represent that the Publix Eealty Co. was solvent and had the material on hand with which to construct plaintiffs’ building. Furthermore, the uncontradicted evidence is that Eeinberg fraudulently diverted the money as it was paid in instalments by plaintiffs and converted some of it to his own use, and that he falsely represented to plaintiffs at the time of such payments that the money was being applied toward the cost of the building, by issuing waivers of liens. It was only after the Publix Realty Company was in bankruptcy that the true state of affairs was disclosed. In these circumstances, we think it was a clear abuse of discretion for the trial judge to set aside his finding and judgment and award a new trial.

The judgment of the circuit court of Cook county awarding a new trial is reversed and the cause is remanded with directions to reinstate the judgment of December 16,1937. Mastin v. National Tea Co., 278 Ill. App. 60; Norton v. Tucker, 290 Ill. App. 606 (Abst.).

Reversed and remanded with directions.

McSurely and Hatchett, JJ., concur.