text:
    Frank Crawford, Appellant, v. Earl Turner and Betty Turner, Individually and as Partnership, Trading as Taystee Bar B Q, Appellees.
    Gen. No. 42,367.
    Opinion filed May 10, 1943.
    David F. Silverzweig, of Chicago, for appellant.
    Samuel H. Solomon, of Chicago, for appellees.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

The material facts in this case can hardly be said to be in dispute. Defendants conduct a business known as the Taystee Bar B Q at 4638 Broadway. Plaintiff conducts a tavern under the name of the Pink Poodle at 502 South State street. In the course of their business defendants purchased meat from a butcher named William Kastel, who employed a collector named Williamson. About June 15, 1941, Kastel handed to Williamson for collection defendants’ bill. He called at defendants’ place of business for payment. The defendants paid to the collector part of the bill in cash and for the remainder of it gave him eleven cheeks dated on various dates from June 16 to 28, 1941, and delivered by defendants in the first instance to divers employees in payment of their wages. Each employee indorsed the check which was payable to him or her and handed it back to defendants and from defendants received cash in payment. These checks, thus indorsed, amounted in the aggregate to $172.30. Williamson took the checks and cash and visited other customers. He took drinks from time to time and became intoxicated. He drove a truck and was involved in an accident, which damaged it. Ill luck seemed to follow him. He met a woman. They went together to a hotel for the evening. When he awoke in the morning his guest, his money and his pants had disappeared. He procured from a bell boy the necessary but ill-fitting garment and went to plaintiff’s tavern, where he arrived at about 2 o’clock in the afternoon. He recited his ill luck to plaintiff, who at his request cashed some of the checks which Williamson there indorsed. Some days thereafter Williamson returned, and the bartender, by direction of plaintiff, cashed the remainder. Plaintiff explains that he had known Williamson for some time and supposed him to be the owner of the checks and of the meat business. Williamson was not the owner of the checks. He had possession but not title. He did not have authority to indorse. When plaintiff presented the checks at the bank, payment was refused by direction of the defendant makers.

Plaintiff sued on the theory that he was a bona fide holder for value, in good faith. The defendants de-' nied this. Plaintiff questioned the right of defendants to interpose the defense of defective title, which he asserts could only be raised by a third party. A jury was waived; the issues tried by the court. There was a finding for defendants and plaintiff appeals.

Plaintiff’s brief expresses doubt whether the Negotiable Instruments Act is applicable. We hold several sections of it (namely, sections 52-59 [Jones Ill. Stats. Ann. 89.072-89.079]) are applicable and that section 59 is controlling and decisive. It is:

“Every holder is deemed prima facie to be a holder in due course; hut when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course. But the last mentioned rule does not apply in favor of a party who became bound on the instrument prior to the acquisition of such defective title.”

In Batch v. English, 261 Ill. App. 29, the makers of notes and bonds undertook to interpose the defense that the instruments were the property of a third party from whose possession the notes and bonds had been stolen. The court said that defense might be available in a suit to which the third person (a candy company) was a party, but “cannot be relied upon by the defendants in the instant case.”

In Woodlawn Trust & Savings Bank v. Donaho, 239 Ill. App. 158, the third division of this court, in a case where plaintiff had taken title through a forged indorsement, analyzing section 59, pointed out that the last sentence constitutes an exception to an exception and held that since the defendant was liable on the instrument prior to the acquisition of the defective title the defense could not be interposed. See also Sherman State Bank v. Smith, 244 Ill. App. 171.

Consistent with these cases is Clarke v. Newton, 235 Ill. 530. Defendants rely on Bell v. McDonald, 308 Ill. 329. That case is distinguishable by the fact that the fraud there was in obtaining the execution of the note sued on and the exception to the exception hr section 59 was therefore not applicable. As a matter of fact, this section was not there considered. More-. over, there was evidence of actual notice in that case.

Brannan’s Negotiable Instruments Law, 6th ed., section 59, page 717 points out that the last sentence of section 59 is omitted from the English Act, B. E. A. S. 30 (2) at page 741 the author says:

“In Parsons v. Utica Cement Co., 80 Conn. 58, 66 Atl. 1024, the court appears to have overlooked the last sentence to § 59 and held that where the plaintiff acquired the instrument from a prior holder, who had obtained it fraudulently, and without consideration from the rightful owner, the burden was on the plaintiff to prove that he was a holder in due course, although defendant, the maker, had no defense of its own to the instrument. The last clause of § 59 was intended to codify the contrary case of Kinney v. Kruse, 28 Wis. 183. See Crawford Negotiable Instruments Law, 3d Ed. 79 n. (c), 4th Ed. 117.

“After the second trial of Parsons v. Utica Cement Co., 82 Conn. 333, 73 Atl. 785, the court' discovered that the instrument had been made and delivered prior to the taking effect of the Negotiable Instruments Law, and deciding the case according to the preexisting law, the court declined to follow Kinney v. Kruse, saying that it is opposed to the strong current of authority. Sed quaere unless the rightful owner has notified the maker not to pay. See Prouty v. Roberts, 6 Cush. 19; Carrier v. Sears, 4 Allen. 336; Merchants Exch. Bank v. N. B. Savings Institution, 33 N. J. L. 170; Brown v. Penfield, 36 N. Y. 473; Houghton v. McAuliffe, 26 How. Pr. 270.”

Applying the last sentence of section 59 of the statute to the facts of this case, we hold the burden of proof is here cast on defendants to overcome the prima facie presumption in favor of the plaintiff. Furthermore, on the facts, we also hold there is no proof sufficient to overcome that presumption. Williamson testified for defendants. He did not deny he received cash from plaintiff for the face amount of the checks. His testimony is to the effect that he became so drunk he did not know what happened. His evidence on this point is obviously untrue in so far as the negotiation of these checks’,is concerned. The indorsements of the checks are in his own handwriting, and these indorsements do not indicate incompetency of the writer at the time he wrote. Indeed, on one of the checks Williamson also wrote his Chicago address. One of the checks was dated June 18, another June 28, 1941. The other checks were dated June 16, 1941. The evidence indicates it was on the latter date Williamson received the checks and began his drunken spree. There is no evidence that his incompetency continued up to June 28, 1941. On the contrary, the evidence all shows he had recovered before that time. On the other hand, the evidence shows that the checks were not all cashed at the same time. We hold as a matter of fact and law, under the evidence plaintiff is entitled to recover, and that under the facts, as a matter of law, defendants are without standing to question plaintiff’s title. Brannan on Negotiable Instruments, 6th ed., § 59, p. 471; Kinney v. Kruse, 28 Wis. 183; Parsons v. Utica Cement Co., 82 Conn. 333, 73 Atl. 785; Daniel on Negotiable Instruments, vol. 2, § 955, p. 1030; Farmers’ State Bank of Dickinson v. Koffler, 60 N. D. 11, 232 N. W. 307, and annotation thereof 70 A. L. R. 1228.

The judgment will be reversed with a finding of fact that plaintiff is the owner of these checks and that there is due to him the sum of $172.30. The judgment will be reversed and the cause remanded to the trial court with directions to enter judgment in favor of plaintiff for that amount.

Reversed and remanded with directions.

O’CoimoR and McSurelt, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Matchett

license: Public Domain

text:
    Mutual Life Insurance Company of New York, Appellee, v. Dora Wineberg, Appellant.
    Gen. No. 42,376.

      Opinion filed May 10, 1943.
    Rehearing denied May 24, 1943.
    Zeamore A. Ader and S. G. Lippman, both of Chicago, for appellant.
    Winston, Strawn & Shaw, of Chicago, for appellee; Louis W. Dawson, George B. Christensen, Edward J. Wendrow and Gerard E. Grashorn, all of Chicago, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

Dora, widow of Isidore Wineberg, is named beneficiary in two life insurance policies issued on the life of her husband by plaintiff, for the sum of $2,000 each. Application for one policy was made August 20, 1935, for the other January 16, 1936. The' policies issued August 23, 1935, and January 20, 1936, respectively. The insured died of coronary thrombosis February 29, 1936. Mrs. Wineberg demanded payment March 7, 1936. The suit in equity was brought by the insurance company April 27, 1936, to procure the cancellation of the policies on the ground that they were obtained by fraudulent representations of the insured as to his health and medical history. A motion of defendant to strike was denied. Defendant answered denying charges of fraud and pleading estoppel by reason of knowledge of plaintiff’s agent of the facts as to assured’s health and medical history at the times of the several applications. Defendant also filed a counterclaim at law on the policies, demanded trial by jury and moved the transfer of the counterclaim to the law side of the court. This motion was denied, the cause referred to a master, who took the evidence and reported in favor of plaintiff and overruled objections. The cause was heard on exceptions to the report. The exceptions were overruled and a decree entered, as prayed, and recommended on July 2, 1941, and defendant appeals.

First, it is said the insurance company had an adequate and complete remedy at law and equity, therefore, is without jurisdiction. In the absence of a valid incontestability clause in the policies this would be true. Des Moines Life Ins. Co. v. Seifert, 210 Ill. 157, 158; Powell v. Mutual Life Ins. Co. of New York, 313 Ill. 161; Ramsey v. Old Colony Life Ins. Co., 297 Ill. 592; Monahan v. Metropolitan Life Ins. Co., 283 Ill. 136; American Life Ins. Co. v. Stewart, 300 U. S. 203; Chicago Nat. Life Ins. Co. v. Carbaugh, 254 Ill. App. 82, aff’d 337 Ill. 483.

Bach of the policies here in question has an incontestable clause which provides in substance that except for nonpayment of premiums, etc., “this Policy shall be incontestable after one year from its date of issue unless the Insured dies in such year, in which event it shall be incontestable after two years from the date of issue.” Defendant says this clause, at least in part, is invalid and repugnant to the statute. (SmithHurd’s Ann. Stats., § 261 (3), ch. 73, p. 635.) Defendant argues the clause in the policies contravenes the requirement of the statute as amended and in force when the policies wore issued, and intentionally disregards and seeks to avoid the purpose of the amendment of 1921 (see Laws of 1921, p. 482) by which the phrase “during the life of the assured” was introduced into the statute. Defendant says that the death of the assured within the first year the policies were in force made it impossible for the policies to become incontestable within that year; that the two-year limitation is repugnant to the statute and, therefore, invalid. Therefore, says defendant, these policies will never become incontestable at law and plaintiff will forever have an adequate and complete defense for fraud at any time suit may be brought within the statute of limitations. Defendant urges the language of the statute is mandatory. It is. She argues that eliminating the two-year limitation of contestability the plaintiff has an adequate and complete remedy at law. It has. It was so held in the case of Chicago Nat. Life Ins. Co. v. Carbaugh, 254 Ill. App. 82, aff’d 337 Ill. 483.

The question, therefore, seems to be narrowed down to a determination of whether the two-year provision in the policies is invalid or repugnant to the statute. We hold it is not repugnant and that the incontestable clause is not invalid. A very literal and technical construction of the statute might lead to such interpretation. This becomes quite impossible when we reflect on the history, nature and purpose of incontestable clauses in insurance policies. The letter of the law kills. It is the spirit that gives life.

In the first place, it is manifest that the incontestable clauses in insurance policies is for the benefit of the assured, that his policy instead of being uncertain may become a certain and absolute promise to pay. The object of judicial construction of a statute is to ascertain the intention of the legislature. The construction for which defendant contends would require us to hold any limitation period of incontestability invalid after the death of the assured. This is impossible for the reason that such an interpretation would quite destroy the value of such a policy and also because such a construction would be absolutely inconsistent with the last clause of section 3 of the statute. The section with material portions of the enacting clause reads as follows:

. . That from and after January 1, 1908, no policy of life insurance shall be issued or delivered in this State or be issued by a life insurance company organized under the laws of this State, unless the same shall provide for the following: . . .

“(3) That the policy, together with the application therefor a copy of which application shall be endorsed upon or attached to the policy and made a part thereof, shall constitute the entire contract between the parties and shall be incontestable after it shall have been in force, during the lifetime of the insured, for two years from its date, except for non-payment of premiums and except for violations of the conditions of the policy relating to the naval or military service in time of war, . . . provided, that the application therefore need not be attached to or made a part of any policy containing a clause making the policy incontestable from date of issue.”

By clear implication the last clause of section 3 authorizes the issuance of insurance contracts incontestable from the date the policy is issued. The words show not only a legislative intent to permit the issuance of such policies but also show affirmatively it was the intention to favor such policies. It is perfectly apparent, we hold, the intention of the legislature was to prescribe that eaph policy issued should contain an incontestable clause and also direct the minimum requirements of such a clause as to the period of contestability. In that respect the statute is, as the language shows, clearly mandatory. However, the statute docs not forbid the issuance of any policy with an incontestable clause more favorable to the insured than that directed by the statute. As already stated, the section indicates that a policy incontestable from date of issue is permissible and favored.

The phrase “during the lifetime of the insured” was introduced into the statute by the amendment of 1921 (see Illinois Laws of 1921, p. 482). The amendment was clearly intended for the benefit of the insurance company rather than the assured. Its literal interpretation would result in the removal of the incontestable feature from every policy where it should happen that the assured died before the policy became incontestable. It is quite impossible to think it was the intention of the legislature not only to permit the insertion of a clause of this kind but to forbid an insurance company to write any other kind of a policy.

Defendant suggests two reasons for the enactment of the amendment of 1921. The first reason, she says, was to provide an adequate defense at law where actions were brought on policies after the expiration of the contestable clause, and second, to make it unnecessary for insurance companies to go into equity while widows were still in mourning and thus denying to them the sacred right of trial by jury.

We are not convinced the defendant has guessed aright the reasons for this amendment. On the contrary, a careful reading of Monahan v. Metropolitan Life Ins. Co., 283 Ill. 136, shows that although the policy there involved was issued prior to the enactment of the statute directing that certain provisions should be inserted in life insurance policies, and although the policy contained a voluntary provision that it should be incontestable after two years except for nonpayment of premiums or for fraud, the insurance company argued this should be construed to mean that the two-year period must have elapsed “in the lifetime of the insured.” The Supreme Court held otherwise. The rehearing in that case was denied April 9, 1918.

In Ramsey v. Old Colony Life Ins. Co., 297 Ill. 592, the policy contained a clause of incontestability after one year from the date of issue, if premiums were paid. The insured died within the year. No administrator was appointed until J uly 19, 1918. He brought an action in assumpsit on the policy on November 7, 1918. The insurance company interposed a plea of fraud not discovered until after the death of the insured. The Supreme Court held that the death of the insured neither enlarged or abridged the right of the insurance company, and that the incontestable clause continued in force after the death of the insured, even though the death occurred before the expiration of the limitation. The insurance company contended that the rights of the parties became fixed by the death of the insured; that a cause of action accrued, at that time, and that if the policy was then contestable it remained contestable no matter when suit might ■ be brought to enforce it. The court said in the Ramsey case that counsel for the appellant regarded the decision in the Monahan case “as fundamentally erroneous,” but at any rate distinguishable. The court, however, did not agree. The Ramsey ease, adhering to the rule laid down in the Monahan case, was decided April 21, 1921, and rehearing denied June 9, 1921. It is pretty clear the object of the enactment of 1921 was to introduce into the statute the construction for which the insurance company had contended in the Monahan and Ramsey cases. Neither the mourning of widows nor the right of trial by jury were persuasive with the legislature. However this may be, we do know there is no decision by any court of Appellate jurisdiction in this or in any other State, so far as we are advised, which holds a policy illegal and contrary to the statute because it omits this phrase. We do know, and this is important (see Chicago Title & Trust Co. v. Central Republic Trust Co., 299 Ill. App. 483, 496), that the insurance department of thig State has for more than 20 years regarded the phrase as directory rather than mandatory. We also know that the third division of this court, in Metropolitan Life Ins. Co. v. Consento, 297 Ill. App. 450, has held that a policy issued in this State, from which the phrase was omitted, was nevertheless valid and enforceable.

In the Consento case, the opinion, after stating the general rule that incontestable provisions as directed are valid, went on to say that accordingly it was also valid for the policy to contain an incontestable clause which is shorter and, therefore, more liberal than that required by the statute, although the insurance might not make the period of contestability longer or the provisions thereof more onerous than “required by statute.” This also has been the construction of a similar phrase found in the contestable clause of the statute in the courts of New York. Kocak v. Metropolitan Life Ins. Co., 237 App. Div. 780, 263 N. Y. S. 283.

In Insurance Law and Practice, vol. 1, see. 311, by . Appleman, 1941, the author says:

“It is often provided by statute that policies issued within that state shall contain clauses setting up a certain incontestable period. . . . Accordingly, it is also valid for the policy to contain an incontestable clause which is shorter, and therefore more liberal, than that required by statute, although the insurer may not make the period longer or more onerous that the period required by statute.”

In the Gonsento case, already cited, the third division of this court said:

“The time limit fixed by statute is controlling but, as we have indicated in our opinion, this may be waived or the time may be fixed at one year, or the time limit omitted, and the insurance company would be bound by the agreement made when it entered into ah insurance contract with the insured.”

In the case of Joseph v. New York Life Ins. Co., 308 Ill. 93, the policy contained a one-year limitation instead of the two provided by statute. The Supreme Court said:

“The language of the policies went further than the requirements of the statute by limiting the contestable period to one year instead of two.”

The history of the incontestable clause in this State will be found in two highly interesting articles, 19 Illinois Law Review 226", and a note by the same author in the same review, vol. 25, p. 88. In the note last named the author says:

“The Illinois insurance laws designating the terms and provisions of policies issued and delivered in the State are permissive, not restrictive, and so long as insurance companies frame their policies within the bounds set by the statutes their policies are enforced according to their term.”

We are not unaware nor have we left unconsidered the language used by the Appellate and Supreme Courts in the Carbaugh case, 254 Ill. App. 82, and 337 Ill. 483. The defendant quotes and relies upon this language. In our opinion it simply shows how far afield distinguished counsel may be led by relying upon particular language when the language has been wrested from its context. We hold that neither the incontestable clause nor any part of it here is invalid, and that plaintiff was without an adequate remedy at law and was justified in bringing its suit in equity to secure cancellation.

Having arrived at this conclusion it becomes unnecessary to consider the question raised by the plaintiff, namely, that defendant cannot urge her theory on this appeal because it was not presented in the trial court, and the contention of plaintiff that the decision on the motion to transfer to the law side of the court and for trial by jury was res adjudícala in so far as defendant wTas concerned, because decided on the prior motion to strike.

The further question in the case is whether plaintiff insurance company, through its agent, had knowledge at the time the policies were accepted that the answers of the assured as to health and medical history were false. While the burden of proof was on plaintiff to prove its case by a preponderance of the evidence (Arnhorst v. National Union, 179 Ill. 486; Continental Life Ins. Co. v. Rogers, 119 Ill. 474) we hold the plea of estoppel, an affirmative one, cast on the defendant the burden of proof in so far as that plea is concerned. Moreover, in the consideration of this question we are reminded that the findings of a master, who has seen and heard the witnesses testify, when approved by the chancellor is entitled to much weight. While there has been some conflict in the decisions as to the weight to be given such findings, the recent cases seem to'approve the rule that such findings of fact, when so approved, will not be reversed in an Appellate Court unless manifestly against the weight of the evidence. Pasedach v. Auw, 364 Ill. 491, 496; Litwin v. Litwin, 375 Ill. 90, 96; Phillips v. W. G. N., Inc., 307 Ill. App. 1, 4; Borovansky v. Para, 306 Ill. App. 60, 68; Metropolitan Life Ins. Co. v. Shattas, 298 Ill. App. 336.

The plaintiff urges the further point that Missner was only a soliciting agent and without any authority to receive or accept any representations or information not contained in the written application and therefore, even assuming he received knowledge of the assured’s condition and medical history,. plaintiff would not be bound thereby. There are some jurisdictions which so hold. The weight of authority in Illinois, however, is otherwise. We have recently given attention to the law in this respect in Nogulich v. Metropolitan Life Ins. Co., 317 Ill. App. 411, where we reviewed the cases applicable. It is suggested here, as it was there, that even assuming the evidence offered by the insured was true, it would tend to establish a conspiracy between the deceased and the insurance company’s agent to defraud the company. Neither of the parties in this case tried it on that theory, nor was any such issue presented by the pleadings. We hold here, as in the Nogulich case, the knowledge of facts concerning the health and medical history of the assured by the soliciting agent may operate as a waiver and create an estoppel. This being the law in Illinois, the question here is narroAved down to whether plaintiff’s agent, Missner, had IiiioavIedge of these facts when he took the application for the policies.

The evidence on this point was given by three witnesses, Mrs. Wineberg (financially interested) Morris Talmage, her brother, and Samuel Missner, the agent of the insurance company. The evidence shows without dispute that the assured and Missner had been good friends for about 17 years. Missner was in a branch office of the insurance company and has been associated with it, as an agent, since July 15, 1921. His home address was at 1623 South Clifton Park, about two blocks from the Wineberg home on Millard avenue. He moved from this home some time after these policies were written. The Missner and Wine-berg families attended the same synagogue. Wine-berg, when he died, was president of the synagogue, and Missner for several years was its secretary. Missner was accustomed to visit Wineberg’s home about twice a month and usually on Friday evening. They played cards together. Morris Talmage was often there and joined in the card playing. Wineberg conducted a wholesale clothing store at 847 Roosevelt Road in Chicago. The applications for these policies were taken by Missner at Wineberg’s store and are in Missner’s handwriting.

In 1935, Wineberg’s physician was Dr. Bishkow, who executed the death certificate which stated the cause of death was coronary thrombosis.- In March 1935, Dr. Bishkow was called to Wineberg’s home. The doctor suggested his patient be taken to the Michael Reese Hospital. He was taken there by taxicab, and while there was under the care of Dr. Bloch, who diagnosed his ailment as a coronary occlusion, which the doctor defines as “a closing of one of the blood vessels that supply the heart muscle with blood,” thus impairing its action. The doctor informed Mr. Wineberg of his condition. Wineberg remained at the hospital from March 22 to March 29, 1935. After Wineberg’s return from the hospital the playing of cards was not continued, although Missner’s visits to the home were. These occurred about twice a month.

Morris Talmage testifies that he was present at Wineberg’s home at about the end of April in 1935, when the bell rang and Missner came in. The witness and his brother suggested a pinochle game; Missner replied, “I have something more important. I am going to sell Mr. Wineberg an insurance policy”; Wineberg replied, “How, you know Mr. Missner, I have been ill and I could not possibly pass a medical examination and get another insurance policy”; that Missner replied, “Well, don’t let that worry you, because you are entitled to a non-medical application for additional insurance on your old policy.” Talmage says Wineberg said, “Let it wait a little while. See me at the store.” Talmage says that Missner, his brother and himself played the game but Mr. Wine-berg did not play. He further says that at one stage of the game Wineberg expressed an inclination to join, but Missner said, “Noyr, Izzy, you know you shouldn’t play pinochle, because that is strictly against the doctor’s orders.” He also says that Missner said, “You know, Isidore, you cannot play cards on account of your heart ailment.” This witness says that three weeks thereafter Missner came in and again suggested Wineberg take out additional insurance; that Wineberg again told him that he would not be able to pass an examination on account of his heart ailment, and that Missner again repeated what he had said before about the non-medical application for additional insurance, and Mr. Wineberg again said to see him at his store. These are all the conversations Mr. Talmage remembers.

Mrs. Wineberg testifies that Missner continued his visits to their home after the husband’s return from the hospital; that she was not around and does not remember the subjects discussed. She visited her husband regularly while he was in the hospital. On one occasion she saw Missner there; she would say about four days after he was taken to the hospital; she thinks it was on Tuesday. She says that Missner came in and saicj, “Why, Mr. Wineberg I am very sorry to see you here. What happened to you all of a sudden ? ’ ’ and that Wineberg replied, “Well, it happened just like a lightning. I have got a heart attack.” She says that Missner stayed for perhaps an hour; that Mr. Missner took her home to the door of her house; that they went home on a streetcar. Mr. Missner attended Mr. Wineberg’s funeral, came to the house while Mr. Wineberg was on his death bed, and after death came to pay his respects to the widow. He helped Mrs. Wineberg fill out the proofs and papers to get the insurance and brought these to her home. Since the signing of the papers he does not come around, and she has not seen him at the synagogue. In fact, since Mr. Wineberg’s death she does not attend any more. Mr. Missner, however, comes to her place of business and handles the fire insurance, plate glass, etc. She thinks since the husband’s death he has been in there about 20 or 30 times, but she never mentioned these two policies to him that are now in suit. Missner delivered the checks to her for the insurance. She did not know about the policies now being sued. When she found out the company would not pay the $4,000 she asked Missner about it but cannot remember what was said. This was when they talked at the home.

Missner on the contrary testifies he did not visit Mr. Wineberg at the hospital and did not see him there at any time. He denies the several conversations in the presence of Talmage, to which Talmage testified. He says he did not talk about Winebcrg’s health to his knowledge. He does not remember what he talked about or might have asked him. He is positive that at no time did Wineberg tell him about having a heart condition and says that he did not know that fact.

The master specifically found that Missner, the agent, did not know that Wineberg, the insured, had been in Michael Ecese Hospital, and that plaintiff, neither through its agent nor in any other manner, had knowledge prior to the execution of the application that the insured had suffered a heart attack. The proof shows that if the company had known of the medical history of the assured, the policies would not have issued. The master found that Missner did not have knowledge of the false answers made by Wine-berg in the application. The burden of proof was on Mrs. Wineberg as to this issue. The only evidence tending to establish knowledge was that of Talmage and the defendant. Each witness testified as to distinct facts of which the other did not have knowledge. Both were denied by Missner. The testimony of Talmage, in particular, does not appeal. It appears as the testimony of an eager witness. Apparently the master did not believe his testimony was true. Before the master and the chancellor the issue was whether this defense of estoppel had been established by a preponderance of the evidence. The chancellor, giving weight to the recommendation of the master, found that it was not established. The question for our decision is different. We are to determine whether the finding of the master and the chancellor that the facts constituting estoppel had not been proved is clearly and manifestly against the weight of the evidence. On the facts as stated we cannot hold that it is. The decree will be affirmed.

Affirmed.

O’Cohhor and McSurelt, JJ., concur.


text:
    John Demikis, Appellee, v. One Cent Club, Inc., et al., Defendants. Appeal of One Cent Club, Inc. and Northern Trust Company, Appellants.
    Gen. No. 42,391.

      Opinion filed May 10, 1943.
    Rehearing denied May 24, 1943.
    Lord, Bissell & Kadyk, of Chicago, for appellants.
    Richard Hill, Jr. and John O. Wagner, both of Chicago, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

In an action brought under section 14 of the Dram Shop Act (Ill. Rev. Stat. 1941, ch. 43, par. 135 [Jones Ill. Stats. Ann. 68.042.]) and on trial by jury plaintiff had a verdict in his favor for $8,870. At the conclusion of all the evidence a verdict was directed in favor of defendant William Oppenheim and motions for a directed verdict in favor of other defendants were reserved and the cause given to the jury with the result stated. Each defendant after return of the verdict, made a motion for judgment notwithstanding, which ivas denied, and a final judgment in favor of plaintiff for the amount of the verdict entered.

It is contended for reversal the verdict is clearly against the manifest weight of the evidence and that a neAv trial should have been granted for tliat reason; also, that the verdict is excessive, and further that instruction No. 6 requested by the plaintiff and given by the court was erroneous.

The question of whether the verdict is clearly and manifestly against the weight of the evidence is, the controlling question. We have given careful consideration to the testimony of the witnesses for both parties. While recognizing our duty in this respect, we cannot disregard the rules applicable in the determination of this question. A jury and a presiding judge, all of whom saw and heard the witnesses, have concluded plaintiff was entitled to the verdict and that judgment should be entered on it. We are slow to set aside a verdict thus approved unless for a compelling reason.

The evidence is sharply conflicting. Some of it on both sides is, we are satisfied, untruthful. The task of weighing evidence under such circumstances is beset with many difficulties. 1

Plaintiff is 29 years of age and lives Avith his parents at 3128 Warren avenue. He was not working at the time of this occurrence, which took place in the early morning of October 24, 1938, while he was in defendant’s tavefn the One Cent Club, at No. 3201 West Madison street in Chicago, operated by William Oppenheim. Oppenheim opened the tavern in 1937 and closed out business in 1940. In the business two bartenders were employed, A1 Sampson (also knoAvn by the name of Rosen) and Ted Galla. Sampson was about 5 feet 10 inches in height and weighed, he said, 190 pounds. Gertrude Raymond was employed in the place as a Avaitress. She testified she was present at the occurrence. This is corroborated by some and denied by other witnesses. She worked in this place from the time it opened in 1937 until it closed. Edna Prentiss was “dice girl.” She did not testify. Oppenheim says whenever there was any trouble in the tavern he always tried to stop it personally; “Once in a while somebody might stagger in and start a little disturbance and we would walk them out.” The one thing entirely certain from all the testimony is that plaintiff went to this resort on the early morning of October 24, 1938, and while there was struck by Rosen, alias Sampson, and his jaw broken. Plaintiff says (and a number of witnesses corroborate him) that a blackjack was used by Sampson. Sampson says he only used his fists. There is no doubt of the injury to plaintiff’s jaw by whichever method brought about. The complaint avers the specific facts to which plaintiff testified. The answer of the defendants was in the nature of a general denial.

Oppenheim says plaintiff entered the resort close to closing time 1:30 and 2:00 o’clock, on the morning of October 24. He did not remember more than two people who were sitting at the front end’ of the bar at that time, ‘1 a fellow and a girl. ’ ’ Sampson was there, but Oppenheim says he did not see Sampson take a drink with any customer and did not see Sampson take any drink at all. Oppenheim also says that plaintiff did not have anything to drink in his place. He says plaintiff was there about 5 or 10 minutes, had a fight with Rosen (or Sampson) and went outside. He says plaintiff afterward came in again. Oppenheim was standing near the entrance and after plaintiff was hit told him to see a doctor and that he (Oppenheim) would pay his bills. Oppenheim says he did not know at that time plaintiff’s jaw wás hurt but his nose was bleeding.

October 23, 1938, fell on Sunday. Plaintiff testified that on the afternoon of that day he went to Wauconda, Illinois, with his friend, Frank Crossin, Crossin’s brother and the brother’s wife; that they visited with friends, a group of six or seven, and had about 21/2 gallons of beer. Upon his return from Wauconda he went to this tavern, which was about a block and a half- from where he lived, to see if his friend, Tom Hickey, was there. When he entered he found his friend, Edward McNamara. Plaintiff says he went to the end of the bar where McNamara was; that a beer was ordered for each and they sat there talking. A fight started between some men at the center of the bar. They saw the bartender, Sampson, reach for a blackjack and decided to take their leave. Just as he was passing, Sampson (who plaintiff says was drunk) wheeled around and hit him with the blackjack.

This testimony of plaintiff is corroborated by the testimony of John Mosley, a window trimmer, who was working at 6316 Stony Island avenue, lived in Melrose Park, and had stopped at the tavern on his way home. Mosley says that Sampson was under the influence of liquor; that Oppenheim and others were drinking with him; that he and plaintiff started to get out when Sampson used the blackjack and struck plaintiff with it. The evidence shows Mosley was not before acquainted with the plaintiff.

McNamara, plaintiff’s friend, also corroborates his testimony as to the drinking by Oppenheim and Sampson, and the use of the blackjack. McNamara says Mosley helped him put plaintiff into his car and that he drove him home.

Frank Crossin corroborates plaintiff as to the trip to Wauconda, his return from there, and says he dropped him off in front of the tavern and that plaintiff was entirely sober.

On the other hand, Sampson testified plaintiff came into the tavern staggering and seemed intoxicated; that he went to a table, put his arms on the table and his head on his arms; that the waitress went over to him and shook him; that he raised his head up and she told him he couldn’t sleep there, and he then called her a very nasty name; that she went to Sampson and told him what had occurred, and Sampson went over to plaintiff and shook him. Sampson says plaintiff lifted up his head and said, “Who are you?” Sampson says he told him and also told him plaintiff had had enough to drink and that he couldn’t sleep there. Plaintiff braced himself up. Sampson took him by the right arm and walked him to the front door. Plaintiff walked out but in about two minutes walked back in. Then Sampson, with the help of Oppenheim, (each taking plaintiff by the arm) walked him to the front door again. Sampson walked out with him. By this time Sampson felt a swing on the back of his neck, turned around and found plaintiff had raised his hand to fight. Thereupon, Sampson says, he hit him and knocked him down. Fifteen or twenty minutes afterward, according to Sampson, plaintiff again walked in, and Sampson did not see him afterward. Sampson had been trained as a prize fighter but had never, he says, actually followed his profession.

Gertrude Raymond, the waitress, corroborates Sampson’s story as to the incident at the table. Plain- ' tiff on rebuttal said he had never seen her before, and that she was not at the tavern at the time of the occurrence.

William Woods, who keeps a tavern at 3208 Lake street, testified that with a “lady friend” he went into defendant’s tavern at about 1 o’clock on the morning in question and stayed until-2 o’clock. He corroborates to a certain extent the testimony of Sampson, Oppenheim and Gertrude Raymond, as to the details of the occurrence. Wood’s girl friend did not testify. Woods said he went to the One Cent Club at this time because Oppenheim was a friend.

After this suit was started, and on September 16, 1939, defendant caused the deposition of plaintiff to be taken. It was transcribed by Frederick Julian, a court reporter. Defendant argues that statements made by plaintiff at the time of the taking of his deposition were so contrary to and inconsistent with plaintiff’s evidence given at the trial as to compel the conclusion plaintiff is unworthy of belief. Julian testified he took plaintiff’s testimony and dictated it into a dictophone from which it was written up. His testimony tends to show plaintiff then said McNamara went to Wauconda with plaintiff; that plaintiff entered the tavern with him when he returned; that together they went up to the bar and had several drinks and bought a drink for the bartender; that plaintiff said he was not able to say the bartender was intoxicated, and that he admitted that at that time he, himself, had begun to feel the effects of the liquor he had taken.

We have not overlooked but endeavored to give due weight to the Julian testimony. It is not corroborated and material parts of it are denied by plaintiff. The .deposition was not read over to plaintiff nor by him after it was written up, and he never signed it. The testimony of plaintiff at the trial was certainly consistent with the allegations of his complaint filed prior to the taking of the deposition. The trial judge stated at some length reasons for denying the motion for a new trial and for his conclusion that the verdict was not against the weight of the evidence. His statement shows he did not overlook the Julian testimony nor the fact that on the plaintiff was cast the burden to prove his case by a preponderance of the evidence. We cannot find it to be our duty to hold he erred in entering judgment on the verdict of the jury. The kind of injury inflicted and the inferences to be drawn from the nature of it strongly persuades us the narration of the occurrence by plaintiff’s witnesses is more probable than that of .Sampson.

It is next contended the verdict is excessive. This contention is without merit. Giving due consideration to all the testimony on both sides it is impossible to consider the occurrence in any other light than that of an unjustified and brutal assault. The case is one where under the law punitive damages might be properly imposed by the jury. The trial judge said that if only actual damages had been allowed he would not have regarded the verdict as excessive. On the day following the assault plaintiff was taken to the hospital. He was treated until April 1939. An X-ray was taken; the maxillary bone and the mandible of the lower jaw were wired together; the last molar tooth in the right lower jaw was removed. The food given plaintiff was liquid, solid food being prohibited. Plaintiff swallowed his food through a tube. The jaw was shortened a quarter of an inch. The injury was permanent. He cannot yet open his mouth as formerly. He complains of pain when opening the mouth and of numbness of the jaw and of the chin. The bill of the doctor was $250. Plaintiff is a young man. As a result of this brutality he will go through life maimed. We cannot under these facts and in view of the right of the jury to impose punitive damages, hold the judgment excessive. On the contrary we agree with the statement of the trial judge that the amount of the judgment would be justified even if the jury had been limited to actual damages.

It is finally contended the court erred in giving the sixth instruction requested by the plaintiff. By this instruction the jurors were told that in determining the amount of damages in case they should find for the plaintiff on the issues, they would have a right to consider “the nature and extent of plaintiff’s physical injuries, if any, so far as they are shown by the evidence; his pain and suffering if any, resulting from such physical injuries, any permanent injury or disfigurement to his face or impairment and the loss of use of his jaws if any.” The defendants contend that this instruction is contrary to the law as stated in Chicago City Ry. Co. v. Anderson, 182 Ill. 298.

In the Anderson case the Supreme Court affirmed the judgment of this court, which affirmed the judgment of the trial court (80 Ill. App. 71). Reversal was urged for the reason, as argued, that an instruction given told the jury that in estimating damages, if any, plaintiff’s “pain and suffering” might be considered. The objection was not allowed but the opinion went on to state: ‘ ‘ The mental pain that may be considered and allowed for in this class of cases is such as is the direct result or concomitant of the physical pain suffered.” The opinion then went on to say that “mental pain” that comes from “the humiliation of going through life in a crippled condition, is too remote to be considered an element of damage.” The remark was merely obiter and not directed at any point actually raised in the case.

In Cullen v. Higgins, 216 Ill. 78, 84, plaintiff had judgment where an instruction had been given that the jury might take into consideration the question of whether plaintiff had been “marred physically.” The court said the instruction, “in the form in which it was framed,” should not have been given. It also pointed out that there was no evidence on which, to base the instruction.

In Chicago City Ry. Co. v. Smith, 226 Ill. 178, objection was made that an instruction told the jury that it might consider “to what extent, if any, he has been injured or marred in his personal appearance,” and to what extent he might have endured mental and physical suffering as a natural and inevitable result of such injury. The opinion of the Supreme Court (which was by the same justice who wrote the opinion in the Cullen case) said that the instruction was based on the evidence and was not subject to the objection raised in the Cullen case and affirmed the judgment of the Appellate Court.

In Fitzgerald v. Davis, 237 Ill. App. 488, the third division of this court considered a case where the court instructed the jury that plaintiff could not recover “any damages on account of the disfigurement or marring of her personal appearance.” The plaintiff had .received a cut on the face as a result of the injury for which she sued. This court said this instruction was more favorable to defendant “than he was entitled to under the law.” The opinion states:

“The law only prohibited the recovery of damages in such a case for mental suffering which results from embarrassment or chagrin and which suffering has no relation to physical pain. Chicago City Ry. Co. v. Anderson, 182 Ill. 298. She might recover for disfigurement which resulted from the accident.

“We think the argument of counsel taken in connection with the facts in the case was clearly insufficient to warrant us in disturbing the verdict and the judgment. ’ ’

In Nosko v. O’Donnell, 260 Ill. App. 544, 554, the same question was considered. We there said:

“Defendant also contends that the court erred in refusing to give as requested by defendant an instruction that the marring of personal appearance and humiliation resulting from the contemplation of bodily disfigurement are not elements entering into computation of pecuniary damages for personal injuries sustained by reason of alleged negligence, and it is asserted that the question of law raised by the refusal of the court to give the instruction ‘has never been put squarely to the Supreme Court.’ Defendant says the question was not before the court at all in Chicago City Ry. Co. v. Smith, 226 Ill. 178. We do not so construe that case. Moreover, the question was passed on in Fitzgerald v. Davis, 237 Ill. App. 488, and we adhere to that decision.”

In 15 Am. Jur., § 186, pp. 605, 606, that authority states:

“There is a conflict of authority as to whether a recovery may be had for mental suffering, mortification, and humiliation arising from the disfigurement of the plaintiff’s person. Some courts hold that such suffering is a proper component part of that mental suffering for which redress in monetary damages may be given. Under this rule, such suffering as is reasonably certain to be endured in the future on account of such disfigurement may be compensated for. Other courts take the view that mental suffering caused by disfigurement is too remote and indefinite to constitute a proper element of damages.

“In some jurisdictions there can be no recovery for mental suffering caused by disfigurement of the person where the injury causing the disfigurement was not caused maliciously, and the disfigurement is of such a character that it cannot possibly render the plaintiff’s presence objectionable to any person or result in making him an object of pity or ridicule.”

The authorities are collected in L. R. A. 1916 E, in a note to Patterson v. Blatti, p. 898. The ground of objections to the allowance of such damages is that they are too speculative and remote. The instruction here is not subject to that objection. The instruction limits the damages which may be recovered to “any permanent injury or disfigurement” resulting from physical injuries. We are unable to conceive of any reason why the consideration of such damages should be excluded, and this holding is in conformity with the ruling of the Supreme Court, as we understand the decisions.

There is no reversible error in the record, and the judgment will be affirmed.

Affirmed.

O’Cohhor and McSurely, JJ., concur.


text:
    Genevieve Clark, Appellee, v. Hoosier Casualty Company of Indianapolis, Appellant.
    Gen. No. 42,428.
    Opinion filed May 10, 1943.
    Rehearing denied May 24, 1943.
    Robert E. Dunne, of Chicago, for appellant; Edward McTiernan, of Chicago, of counsel.
    No appearance for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

In a suit to recover indemnities under a hospital and medical expense policy, there was a trial .by the court with a finding for plaintiff in the sum of $274 from which defendant appeals. There has been no appearance in this court for the plaintiff.

The statement of claim filed May 2,1941, alleged the execution and delivery of the policy on June 1, 1940, and a copy of the policy is attached. The illness and disability of plaintiff was also alleged and her hospitalization from January 1, 1941, to January 16, 1941, thereafter. A bill of particulars was filed June 24, 1941, itemizing the expenses incurred by plaintiff by reason of such hospitalization. The answer admitted the sickness, disability and hospitalization as alleged but denied liability under the policy because, as defendant said, the illness was the result of another illness “having its cause and beginning prior to said policy being in force fifteen days, ’ ’ as provided by section B of the policy. The answer denied that defendant was obligated to pay any one of the specific items stated in the bill of particulars but did not deny that any of these items had not been incurred or claim that any charge made was unreasonable.

Plaintiff testified on the hearing that she entered Mercy Hospital on January 1, 1941, and that while there underwent an operation by which the uterus was removed. She was at the hospital 17 days. She was given an anesthetic for the operation. She was attended there by Dr. Herbert Schmitz, who saw her every day she was there. After she was discharged from the hospital she went to his office and received treatment four times. The bill of Drs. Schmitz and Nelson for services rendered to her was produced and received in evidence over objection. The bill is for a balance of $190 after allowance of a credit of $5 paid thereon. The hospital bill was rendered to plaintiff under date of February 27, 1942, and discloses items covered by the bill of particulars to the amount of $115.90.

It is contended that it was reversible error to admit in evidence the unpaid doctor and hospital bills without proof of the reasonableness Of the charges. Wicks v. Cuneo-Henneberry Co., 319 Ill. 344, 349, and Byalos v. Matheson, 328 Ill. 269, 272, are cited. In Cloyes v. Plaatje, 231 Ill. App. 183, this' court held that the price paid by the plaintiff to a garage proprietor for repairing his automobile was presumptive evidence of the reasonable value of the repairs and there was nothing in the evidence to cast suspicion on the transaction. We do not doubt that the same rule would be applicable to a payment made by a patient to a physician or surgeon for his services, or to a hospital for hospitalization. In this case it appears from the bill itself that defendant had made a payment thereon. It also appears that there was attached to and a part of the policy a schedule of operations with a provision that the indemnities provided in the schedule should be payable for injuries and illness covered by the policy. The policy also contains a provision for hospital room and board at the rate of not more than $5 per hospital day for 30 days, thereafter at the rate of $2.50 per day for a period not to exceed 6 months provided that the aggregate number of days for which hospital benefits shall be payable in any one policy year shall not exceed the combined number of days specified therein; and hospital service charges for the use of the operating room, $10; for administration of anesthetic, $10; for medicines, bandages and dressings, $10; X-ray pictures, $10; laboratory fees, $10; and ambulance hire, $10. As to physician’s services the policy provides that the company will reimburse for the cost of not more than 30 treatments in an amount not to exceed $3 per treatment in the hospital, and for not more than 5 such treatments in an amount not to exceed $2 per treatment after the release of the insured from the hospital. As to surgical operation' the policy provides the company will pay the expenses actually incurred, not to exceed the amount specified in such schedule of operations. The items mentioned in the bill of particulars are in harmony with these schedules of the policy, and we think the court did not err in making allowances in conformity therewith. There is no denial in the pleadings that the services received were necessary or that the amounts mentioned in the bills and stated in the bill of particulars are unreasonable. We think the court did not err in this respect.

It is next contended the court erred in excluding the hospital records offered in evidence hy the defendant, and it is claimed that these were admissible under rule 70 of the municipal court. The abstract shows that in response to a subpoena duces tecum Collette Jurgensen, the records librarian at Mercy Hospital, appeared in court with the hospital records pertaining to the case on trial. These showed the admission of Miss Clark and her discharge and the notes of the nurses. The daily report sheet was offered in evidence and received. Miss Jurgensen was afterwards recalled as a witness and stated that the records she produced “refer to the record of Genevieve Clark and are a true and correct record of the history of her case and her hospitalization,” and that they were kept under her supervision and direction. The records were then offered, in evidence and received. These consisted of a number of exhibits, statement of the pathological laboratory signed by Dr. Henry, report of operation by Dr. Schmitz, the history and physical examination. We have examined these and find them unintelligible without translation by a medical expert. To these plaintiff objected. The objection was properly sustained.

It is contended by defendant that the finding of the court is against the manifest weight of the evidence. The statements made by the plaintiff upon her application for the policy are a part of it. She there states that she did not then have similar coverage; that applications by her for similar policies had not been denied. She said she was in a sound and healthy condition, mentally and physically; that her habits of life were temperate. In response to the question “Have you had medical or surgical advice or treatment or any departure from good health within the past seven years, if so, state when, cause and duration?”, she replied, “Appendectomy in 1930 by Dr. A. J. Shimak, Manitowoc, Wise., and also for Female trouble in 1938. In July by same Dr.” In response to the question as to whether she had ever been advised to have a surgical operation, if so, for what and when performed, her reply was, “See above, but completely recovered & in g’ood health now.” The question of whether the disability from which she suffered at the time she was hospitalized after taking the policy had its origin in a prior disability as defined in the policy, involved an issue of fact which could be determined if at all only by competent medical testimony. The finding of the court was for the plaintiff. We are not able, under well established rules, to say that the findings of the court on issues of fact are clearly and manifestly erroneous.

The judgment will be affirmed.

Affirmed.

O’Connor and McSurely, JJ., concur.


text:
    Standard, Inc., Appellant, v. Frank I. Kirby, Trading as Columbus Park Garage, Appellee.
    Gen. No. 42,453.

      Opinion filed May 10, 1943.
    Dwork & Epton, of Chicago, for appellant; Saul A. Epton and Arnold S. Kabaker, both of Chicago, of counsel.
    Eugene R. Ward, of Chicago, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

Plaintiff is the owner of an automobile, a Pontiac, 1937 make. Leo Seelig, who lives in Chicago, is president of plaintiff. Defendant owned and for 25 years operated a garage in Chicago, known as the Columbus Park Garage. Plaintiff was a tenant and for several years kept his car in defendant’s garage. There were two entrances. Defendant assigned to plaintiff a stall about 100 feet back from the officej which was between the two entrances. Defendant had three employees in the business. At least two persons were on duty at any particular time. A particular stall was assigned to plaintiff for storing its automobile and plaintiff kept it there at all times. Plaintiff paid $15 a month rent to defendant, and this included furnishing to plaintiff an attendant to drive the car home upon request. -It was not unusual for Mr. Seelig to drive the car to the garage, turn the motor off, leave the keys in the ignition, and walk out. He did this on October 6, 1940, when he took the car to this garage at about 3:00 p. m. He drove the car into the garage as usual. He says he left it “on the slab” and went home. He did not call the attendant at that time and, as a matter of fact, never called him on such an occasion. There was someone present, but Seelig did not know him. He was not, he says, the night man. The man was in the office. When Seelig brought the car into the garage he left it on the floor “toward the rear,” and on the side he usually left it. Mr. Seelig came back the next morning at 7 o’clock. The car was not there. He asked the night man what had become of it. The night man said he did not know and called defendant on the telephone. Defendant came over, and Mr. Seelig told him what had happened. Defendant said he did not know what had happened to the car “and that he couldn’t understand it.” Mr. Seelig then went to the Fillmore Street Police Station and reported the’loss. The automobile was found by the police at G-reen Bay, Wisconsin, in a damaged condition. The parties stipulate that the damage amounted to the sum of $195.10.

Defendant does not question the law as stated in Byalos v. Matheson, 243 Ill. App. 60, aff’d 328 Ill. 269; Scherb v. Randolph Wells Auto Park, Inc., 301 Ill. App. 298, and Clemenson v. Whitney, 238 Ill. App. 308. These cases follow the early case of Cumins v. Wood, 44 Ill. 416, where it was held that where the bailor shows he has stored goods in good condition with the bailee and the goods are returned to him damaged or not returned at all, the law presumes negligence of the bailee unless he shows the loss did not result from his negligence.

Defendant, however, contends that he was at no time the bailee of the automobile, for the reason that it was never in fact delivered to him. In making this contention defendant overlooks the admission of his own pleadings. Paragraph 1 of his answer admits the plaintiff stored its automobile in defendant’s garage, and in paragraph 3 “admits that any and all times when said automobile was in the possession of the defendant he was merely a bailee for the same.” Further, in paragraph 2 the defendant asserts the facts to he that ‘6 on the last day that said automobile was left in said garage for storage, said automobile was subsequently removed from said garage by the plaintiff. ’ ’ The evidence also shows the car was delivered to defendant.

Facts alleged and not denied are admitted and denials must be specific. The law in the cases cited is applicable to the facts here alleged, admitted and proved. There is no evidence tending to overcome the presumption of negligence arising from the proof of facts showing the delivery of the automobile at defendant’s place of business and the failure to deliver it the next morning when it was called for.

The judgment will be reversed and the cause remanded with directions to the trial court to enter judgment for plaintiff and against defendant for the sum of $195.10.

Reversed and remanded tvith directions to enter' judgment for plaintiff.

O’Connor and McSurely, JJ., concur.


text:
    Walter E. Heller and Company, Appellee, v. Johanna Martin, Appellant.
    Gen. No. 42,462.

      Opinion filed May 10, 1943.
    Rehearing denied May 24, 1943.
    Laurence M. Fine, of Chicago, for appellant.
    William H. Sloan and Theodore Sharf, both of Chicago, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

On a former appeal in this case we reversed a judgment for plaintiff and remanded the cause for trial. (Walter E. Heller & Co. v. Martin, 307 Ill. App. 240, 29 N. E. (2d) 870.) Upon remandment and on trial by jury, at the close of all the evidence the court, after excluding practically all the evidence offered by defendant, on motion of plaintiff, directed a verdict for the full amount of plaintiff’s claim with interest, amounting to $473.41. Again defendant appeals.

The suit is based on an instalment note dated May 13, 1937, for $391.30, payable in 17 installments to the order of Kol-Master Corporation, and by it indorsed May 17, 19.37, before any instalment was due. Plaintiff claimed the note is negotiable and that it is a holder in due course, for value and without any notice of any defense. (111. Rev. Stat. 1941, ch. 98, § 52, pp. 2182, 2183 [Jones Ill. Stats. Ann. 89.072]) SmithHurd’s Ann. Stats., par. 72, p. 165.

The defense interposed was that the consideration for the “note” given was merchandise; namely, a device known as a stoker; that the execution and delivery of the instalment note was obtained by Kol-Master through false representations of the quality and worth of the stoker; that it was in fact worthless; further, that plaintiff was not a holder in due course but took the “note” with notice of defenses.

On trial, plaintiff introduced the “note” in evidence and rested. Plaintiff offered no evidence tending to show the circumstances under which it became the owner. Defendant then called plaintiff’s manager as a witness. He said he represented plaintiff in the transaction in which the “note” was purchased from Kol-Master, and at the time he received the “note” for plaintiff he also received a conditional sales contract. He was asked if he detached the “note” from the contract. Plaintiff objected. The objection was sustained. Defendant offered the document in evidence, and the physical condition of the “note” and the contract indicates the “note” and contract were executed together on a form used by Kol-Master and that the “note” and the contract were detached from each other in plaintiff’s hands. This is evident not only from the physical condition of the papers but also from the contents of the “note” and the contract, bearing the same number.

The conditional sales contract describes the merchandise sold by Kol-Master and its price; also shows a “finance charge” of $31.30, making up the exact amount for which the “note” was given. The body of the contract of Kol-Master and defendant consists of a full page of closely printed matter in small type. It provides that title and ownership is to remain in Kol-Master, etc. On the back of the contract is a printed assignment and conveyance of the property therein described to plaintiff from Kol-Master. There is an appropriate blank for the insertion of the name of the assignee, the plaintiff, and by the instrument Kol-Master conveys the property to the assignee plaintiff under seal. Plaintiff therefore received not only the “note” but also an assignment to himself of the property which was the consideration for the “note.”

Plaintiff’s manager testified that at the time of the purchase of the “note” Kol-Master delivered to plaintiff an instrument called a “Schedule of Receivables.” This schedule is in evidence as defendant’s exhibit No. 4. It bears the same number as the “note” and the contract. On one side of it is written a description of the “note.” On the back of it is a printed page designated “Assignment and Guaranty Agreement.” This guaranty is a closely printed page in small type, addressed to plaintiff, signed by Kol-Master and dated May 14, 1937. It is under seal. It recites that any “receivable” not acceptable to plaintiff may be eliminated by it; guarantees payment; requires plaintiff to collect and Kol-Master agrees on demand to repurchase the “receivable” and to pay all expenses. It is also agreed the rights under the guaranty shall inure to the benefit of the assignees, successors, administrators, etc., and that these shall be bound.

Plaintiff’s manager testified that in about four years past plaintiff and Kol-Master had about 550 similar transactions. Defendant’s attorney asked the witness how the account between plaintiff and Kol-Master stood January 1, 1938; how it then stood; what was the total of the transactions for 1937 and 1938; whether plaintiff had any reserve cash in its hands in favor of Kol-Master at any time after the purchase of the note; if there was a surplus and what was done with it. Objections of plaintiff were sustained to these questions. Defendant then offered to prove by the witness that plaintiff and Kol-Master had an arrangement whereby “notes” attached to conditional sales contracts were taken by plaintiff upon condition that in the event of nonpayment plaintiff would be reimbursed from funds available upon other receivables scheduled. Defendant then offered in evidence the guaranty of Kol-Master Corporation. Plaintiff objected and the objection was sustained, the court remarking thát there was no foundation laid for its introduction. Defendant then offered in evidence the ‘‘Schedule of Receivables.” Plaintiff objected that there was an indorsement on the back of the “note” showing that plaintiff purchased it, and that any arrangement between Kol-Master and plaintiff was immaterial to the issues. The court sustained the objection.

Defendant then called Mrs. Olesen, a sister of defendant, who was asked questions with reference to the purchase of the stoker from Kol-Master. She was asked to give her conversation with the sales manager of Kol-Master. She identified exhibits she had received from him. She identified exhibits which disclosed the representations upon which the purchase of the stoker was made. All were objected to by plaintiff and its objections were sustained.

Mr. Prexl, who had been in occupation stoker service for 10 years, was called as a witness. He stated that he had examined the stoker installed; that he has had experience with such stokers. He was asked as to its condition, but on plaintiff’s objection was not permitted to answer. Defendant then offered to prove by these witnesses that the stoker was defective and useless, could not be used, could not be repaired, “that the defendant and Mrs. Olesen had various conversations with the various representatives of the KolMaster Corporation; that the stoker is useless and cannot be repaired; that an attempt was made by the Kol-Master people to repair the same but that they could not; and that the men who came out there, sent by the Kol-Master Corporation, said that the stoker could not be repaired and that it was worthless; that the stoker caused damage to the building; that the defendant detached the stoker and removed it to another place in the basement, and purchased another stoker.”

The plaintiff objected to the1 offer disclosing the theory upon which its case was tried. Plaintiff’s attorney said: “The plaintiff objects to all of that offer of proof on the ground that the same is immaterial, irrelevant, and incompetent, and no sufficient foundation has been laid therefor, particularly that the defendant must first lay the foundation by proving that at the time the plaintiff purchased the note sued on here, the plaintiff had notice or knowledge of those facts or part of those facts.” The court said: “Proof will be rejected. Is that all?” Mr. Fine: “That is all of my case.”

Section 59 of the Negotiable Instruments Act (which is section 79, Smith-IIurd’s Ann. Stats., ch. 98, p. 189 [Jones Ill. Stats. Ann. 89.079]) provides:

“Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course. . . .”

This case seems to have been tried by plaintiff on the theory that the presumption that a holder who as here has purchased before maturity holds in due course prevails throughout the case, and that until defendant by direct evidence disproved that presumption, it would not have a right to show the title of Kol-Master to the “note” was defective, or that In his hands it was subject to defenses at the time it was sold to plaintiff. We hold this an erroneous construction of the statute. As we understand it, while there is prima facie a presumption that a holder who takes before maturity holds in due course, that presumption may be overcome by evidence showing that at the time the instrument was purchased the maker of it had a good defense as against the original payee. We hold defendant had a right to show, as she offered to do, that the “note” was obtained through false representations of the payee; that the consideration for which it was given had wholly failed and the article she purchased was entirely worthless. When and if this showing was made, the presumption plaintiff was a holder in due course disappeared and the burden was cast upon it to show that the purchase of the “note” was made under such circumstances as to make it a holder in due course under the statute. Justice v. Stonecipher, 267 Ill. 448; Bell v. McDonald, 308 Ill. 329; Owens v. Nagel, 334 Ill. 96; Industrial Loan & Trust Co. v. Bell, 300 Ill. App. 502, 21 N. E. (2d) 638. There is no such evidence. The written documents show that, as a matter of fact, plaintiff at the time it received the “note” took title to the merchandise which was the consideration for which it was given. The jury might infer, as a matter of fact, that as the owner plaintiff would know the worthlessness of the property, its kind and quality.

Passing over the question of whether this “installment note ’ ’ was a negotiable instrument within the definition of the statute, we hold practically all the evidence excluded should have been admitted. This excluded evidence would have justified inferences that when plaintiff purchased the “installment note,” took the assignment, etc., the purchase- was made with knowledge of the defenses as between the payee and the maker; in brief, that plaintiff is not a holder in due course within the meaning of the statute. As we have seen, this was the presumption under section 59, and plaintiff did not offer any evidence to rebut it. The whole transaction would appear to be well designed to defraud defendant in case the stoker proved to be worthless, as the offered evidence tended to show.

For the errors pointed out the judgment will be reversed and the cause remanded.

Reversed and remanded.

O’Cohnor and McSurely, JJ., concur.


author: Mr. Justice McSurely

text:
    Selma Grikietis, Appellee, v. Pius Grikietis, Appellant.
    Gen. No. 42,339.
    Opinion filed May 10, 1943.
    Kal & Zaretsky, of Chicago, for appellant; Maurice L. Zaretsky and Robert Berg, both of Chicago, of counsel.
    Louis J. Leo, of Chicago, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff filed her complaint for divorce on the statutory ground that defendant had been guilty of habitual drunkenness for a space of two years. The cause was heard by the chancellor, who entered a decree granting, a divorce to plaintiff. Defendant appeals.

He introduced no evidence but argues in this court that plaintiff failed to prove that defendant was an habitual drunkard for a space of two years, as required by the statute.

Plaintiff was married to defendant October ,30,1937. A number of witnesses testified that commencing on November 6, 1937, to September 4, 1939, defendant was in the habit of getting drunk on an average of two or three times every week, and on three separate instances while drunk defendant threatened plaintiff, using vile and abusive language.

In Garrett v. Garrett, 252 Ill. 318, 326, the court defined habitual drunkenness' as a fixed habit of drinking to excess; “an involuntary tendency to become intoxicated, which is acquired by frequent repetition, — ■ such a frequent indulgence to excess as to show a formed habit and inability to control the appetite.” One may have the habit of getting drunk and yet be sober at times. Richards v. Richards, 19 Ill. App. 465. Habitual drunkenness does not mean constantly intoxicated, but that the party has acquired the habit of indulgence to excess, indicating inability to control the desire for intoxicating liquors. The proof that defendant was in the habit of becoming intoxicated one to three times a week for a period of about one year and ten months, without any evidence of reformation, is sufficient proof that defendant was guilty.

In September 1939, after it was clearly shown that defendant had become an habitual drunkard for nearly two years, he suffered a paralytic stroke and was taken to a hospital, later taken to a psychopathic hospital and from there to the Oak Forest Infirmary. Naturally, defendant was unable to get any liquor during the times he was in these hospitals, and he argues that he must be considered as reformed in his habits during this time. A somewhat similar situation was involved in Dorian v. Dorian, 298 Ill. 24, where the evidence showed the defendant had formed the habit of intoxication gradually, but during a part of the two years preceding the filing of the complaint for divorce was confined in an institution, during which time she was deprived of the use of intoxicating liquors. The court held that the fact that for a portion of the time defendant was not intoxicated, because she could not get intoxicating liquor, did not indicate that she was not guilty of habitual drunkenness, the court saying: “Intoxication without intermission is not necessary to habitual drunkenness, and the evidence is conclusive that the defendant’s habit of intoxication was never reformed.” In Fish v. Fish, 126 Me. 342, is an extended discussion of this point. The court quotes from McCraw v. McCraw, 171 Mass. 146, as follows: ‘ ‘ The ordinary experience of manldnd, however, justifies the inference that a confirmed habit will continue, and, especially when such a habit has a natural tendency to weaken the will and lessen the power of self-control, we should infer its continuance, if nothing were shown to the contrary, and the inference would be reasonable.”

In the present case it was shown that defendant was removed from the Oak Forest Infirmary, apparently by friends, to parts unknown to the plaintiff and which remained unknown to plaintiff until after the filing of her complaint. From this it is a reasonable inference that the habits of intoxication still continued. Certainly if defendant had reformed in this respect, this could have been proved by evidence. No attempt was made to do this.

We are of the opinion the chancellor properly entered the decree, and it is affirmed.

Affirmed.

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


text:
    Charles L. Kaley, Appellee, v. William Hulsman, Appellant.
    Gen. No. 42,370.
    Opinion filed May 10, 1943.
    Marcus Levy and Ode L. Rankin, both of Chicago, for appellant.
    Swanson & Dodge, of Chicago, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

This is a malicious prosecution case tried by the court without a jury in which plaintiff had judgment for $200, with a special finding that defendant had wilfully and wantonly committed the acts causing the injuries to plaintiff and that malice was the gist of the action. Defendant appeals.

The suit grew out of the following. Defendant Hulsman testified that on April 18, 1938 he purchased a peanut vending machine (which is the subject of the controversy) for $6 from Sam Teitelbaum. It was paid for by check and defendant received a bill of sale of the machine. Upon the trial of the instant case counsel for plaintiff conceded as a fact that defendant got the machine in good faith and paid for it.

In the fall of 1939 defendant took the machine to the store of Guidarelli, who dealt in such machines, and left his machine with Rose Musso, in charge of the store, with instructions to sell it for him. Attached to the machine was a gummed sticker on which was defendant’s name, address and phone number.

The following April plaintiff, Kaley, went into Guidarelli’s store and saw this machine. He told Miss Musso it belonged to him and showed her certain markings and numbers on it. She told him that the machine belonged to Mr. Hulsman, the defendant. Kaley insisting that the machine was his, Miss Musso permitted him to take it, as she did not think he would do anything to cause her trouble; she told Kaley that she would call Hulsman, and Kaley replied, “You can get him in touch with me.”

A day or two following, the defendant came to Guidarelli’s store, noticed the absence of the machine and was informed by Miss Musso that plaintiff, one of the store’s customers, had taken the machine over her protest. Defendant then went to plaintiff’s store and tried to get in touch with him but plaintiff was not in; defendant left his name and telephone number with the person in charge of Kaley’s store but heard nothing from him; he was unable to reach plaintiff by phone after calling at Kaley’s place of business and also at his residence.

Defendant testified that not knowing what else to do he went to the Shakespeare Avenue Police Station, where he was referred to Assistant State’s Attorney Samuel Rosenberg, with whom he talked, and Mr.

Rosenberg prepared the information, which was signed by Judge Hermes, and a capias was issued against Kaley. Shortly afterwards he received a telephone call from a man who said his name was Kaley; that he had learned there was a capias out for his arrest. Hulsman asked him why he had not called in order to get the ownership of the machine straightened out, and Kaley replied that he would be found not guilty and “would then sue me for damages and make a bum out of me.”

The case against Kaley was tried in May 1940 and he was found not guilty. The instant suit followed. At the conclusion of the morning session Mr. Levy, representing defendant, told the court that he had subpoenaed Mr. Rosenberg, Assistant State’s Attorney, who was then engaged in other duties but would be present at 2 o’clock to testify to the facts stated to him by defendant which led to his advising Hulsman and preparing the information upon which the warrant was issued. . The court denied the request to continue the case until 2 o’clock, for the reason, as stated, that it appeared from the testimony of Hulsman himself that he had not told Rosenberg all of the facts. Subsequently, after judgment was entered against defendant, he asked to have the case opened to permit the testimony of Rosenberg, who was then present in court and tendered as a witness, but the motion was denied.

Defendant argues that plaintiff did not prove either malice or want of probable cause on the part of the dewhen he instituted the criminal against plaintiff and that defendant’s motion to dismiss should have been allowed.

Plaintiff had-the burden of proving that defendant was actuated by malice at the time he started the prosecution. Farris v. Messimore, 219 Ill. App. 582; Harpham v. Whitney, 77 Ill. 32. Here was a case where a machine, admittedly purchased by defendant in good faith and paid for, is taken out of the custody of defendant’s agent by plaintiff on the mere assertion and claim that he owned it. Defendant did not know plaintiff at this time and was clearly engaged in a proper effort to recover the machine. He sought the advice of the State’s Attorney’s office and proceeded as advised.

Malice may sometimes be inferred from lack of probable cause (Treptow v. Montgomery Ward & Co., 153 Ill. App. 422) or where an arrest is instituted for the purpose of forcing the collection of a note. (McElroy v. Catholic Press Co., 254 Ill. 290.) Nothing of this nature, however, is present here. Defendant did not act hastily. He attempted to obtain an interview with plaintiff to settle the question as to which of the two owned the machine.

It is also the rule that to support a case of malicious prosecution there must be both malice and want of probable cause, and these must concur. Glenn v. Lawrence, 280 Ill. 581, 587. And malice may not be presumed from want of probable cause if all the evidence shows there was no malice. Hanneman v. Minneapolis, St. P. & S. S. M. Ry. Co., 248 Ill. App. 196.

As we have said, Kaley did not seek an interview with Hulsman so that their respective claims might b.e. examined and controversy avoided. Kaley acted arbitrarily and made himself the judge and jury, adjudicating that the machine belonged to him, and took possession of it. He did not attempt to show to the custodian that it had been stolen from him, or from whom he got title to it. He cannot be heard to claim there was no probable cause to charge him with larceny. He presented only a claim of ownership, and the fact that upon trial he was held to be not guilty of larceny does not remove the factor of probable cause. As aptly stated in the brief for the defendant, “Plaintiff created the background for the charge of larceny,' no one else did it for him.”

Plaintiff having failed to prove that defendant was moved by malice, and that there was want of probable cause to make the criminal complaint, the trial court should have found the issues for the defendant. The judgment is therefore reversed without remanding.

Reversed.

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


text:
    People of the State of Illinois, Appellee, v. Steve Wojdas, Appellant.
    Gen. No. 42,379.
    Opinion filed May 10, 1943.
    Smietanka, Conlon & Nowak, of Chicago, for appellant ; Joseph G. Smietanka and George H. Morton, both of Chicago, of counsel.

      Thomas J. Courtney, State’s Attorney, for appellee; Edward E. Wilson, John T. Gallagher and Melvin S. Rembe, Assistant State’s Attorneys, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This cause has already been before us, and the proceedings are stated in a prior opinion. (309 Ill. App. 382.)

The defendant was convicted of the crime of pandering ; he filed a motion praying that the conviction be set aside, asserting that the attorney who represented him at the trial was physically incapacitated at the time so that defendant did not have a fair trial. We held that the allegations of fact in the motion should have been traversed by the People and we remanded the cause for that purpose.

Pursuant to our opinion the People filed answer to defendant’s petition and the issue thus made was whether the attorney who represented him at the trial was physically and mentally incapacitated to do so at the time. There was some evidence in support of defendant’s petition, and convincing evidence to the contrary introduced by the People.

The trial judge held that the evidence did not sustain defendant’s petition that the lawyer who represented him at the trial was physically, mentally, or in any way incompetent to take care of his client’s interest, and denied the prayer of the petition.

It is unnecessary to detail all of the evidence, for the testimony of Judge Daly, the trial judge, is convincing. Judge Daly said he knew Wojdas’ attorney intimately; that in the trial of the case against defendant he did not notice anything peculiar about his conduct on the trial; that his mental condition was apparently good; that his demeanor was apparently the same as it had been during the 17 or 18 years that the judge had known him; that he properly represented his client, Wojdas, and that he cross-examined the complaining witness and the police officers ably and vigorously. In the light of this evidence the court, in passing on defendant’s motion, properly found that there was nothing in the conduct of defendant’s attorney at the trial that prejudiced his client in any way.

For the reasons indicated the judgment is affirmed.

Affirmed.

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


text:
    Flora Turner, Appellant, v. Walter J. Cummings and Daniel C. Green, Receivers, et al., Trading as Chicago Surface Lines, and Division Market, Inc., Appellees.
    Gen. No. 42,406.

      Opinion filed May 10, 1943.
    Supplemental opinion filed and rehearing denied May 24, 1943.
    Friedlund, Levin & Friedlund, of Chicago, for appellant; Emil N. Levin and D. M. Stalzer, both of Chicago, of counsel.
    Frank L. Kriete, Charles E. Green and Arthur J. Donovan, all of Chicago, for certain appellees; William J. Flaherty, of Chicago, of counsel.
    Samuel Levin and Stanley Watson, both of Chicago, for certain other appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit to recover for personal injuries sustained by her while she was a passenger in a streetcar operated by certain of the defendants, doing business as Chicago Surface Lines, caused by a collision between the streetcar and a truck owned and operated by defendant Division Market, Inc. At the close of plaintiff’s evidence the court directed a verdict for the defendants, and plaintiff appeals from the judgment which followed.

October 16, 1939, about 3 o’clock in the afternoon, plaintiff was a passenger on a westbound streetcar on Chicago avenue in Chicago; as it was passing about the middle of the 1400 block on Chicago avenue a heavily loaded meat truck of the Division Market, Inc., backed into it, the back end of the truck striking the streetcar at the window behind which plaintiff was riding; plaintiff was thrown to the floor and received injuries, requiring medical care. The force of the collision was such that the top of the truck was knocked loose from its moorings; the driver of the truck was injured and there were two other injured persons.

There was evidence that there was an unobstructed view between the motorman for approximately 450 feet to the point of the collision; that no bell or horn were sounded; after the collision the streetcar kept going about 20 feet when it stopped with a sudden jolt, throwing some of the passengers toward the front of the car. Plaintiff was free from any negligence.

Defendants admitted that the collision happened and that they owned and operated, respectively, the streetcar and truck at the time of the accident; no third person or outside agency participated in the accident. It was simply a question of the truck backing into a passing streetcar and whether this was negligence on the part of either or both of the defendants.

In Pearlman v. W. O. King Lumber Co., 302 Ill. App. 190, where a suit was commenced against two defendants, alleging that the damage to the plaintiffs’ automobiles was caused by the negligent operation of the defendants’ vehicles, we reversed and remanded a judgment entered on the verdict of a jury finding both defendants not guilty. We held that “Either one or both of the defendants are guilty.” The only question to be decided was, which one of the defendants was guilty, or both, and the amount of the damages. To the same effect is Aarseth v. Stein, 278 Ill. App. 16. In the latter case there was no contention that the death of Aarseth was caused in any way by his own negligence, but clearly by the negligent operation of one or both of colliding automobiles. We there said, “. . . plaintiff has a right to recover from someone.” Where an accident results from the operation of two vehicles, controlled and operated by defendants, in the absence of an explanation it will be presumed that the collision arose from the want of proper care.

Plaintiff argues that the evidence established that the truck backed into the oncoming streetcar without warning, and the motorman of the streetcar was not alert to observe vehicles which might interfere with traffic. The evidence presented questions of fact which the jury should have been permitted to pass upon.

Plaintiff complains that the court, when defendant’s motion to direct a verdict was presented at the close of plaintiff’s case, erred in acting upon the motion at once. He says the court should have reserved its decision and compelled defendants to introduce their evidence. There is no merit in this point. Such a motion cannot be reserved. Popadowski v. Bergaman, 304 Ill. App. 422; Kahler v. Marchi, 307 Ill. App. 23; Goldberg v. Capitol Freight Lines, Ltd., 314 Ill. App. 347, aff’d 382 Ill. 283.

We are of the opinion that the evidence should have been submitted to a jury and that the motion for a directed verdict should have been denied. The judgment is reversed and the cause is remanded.

Reversed and remanded.

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

Supplemental Opinion on Rehearing.

Each defendant has filed a petition for rehearing in each of which counsel, in quoting a few lines from the opinion infer that we held under the facts it must be presumed defendants were negligent and then counsel talk about the doctrine of res ipsa loquitur. This is a misapprehension. The negligence in this case is not presumed but is demonstrated. Plaintiff was a passenger in the streetcar; she was not negligent. There was a collision between the streetcar and the truck. Plaintiff was injured as a result of the collision. One or both of the defendants are guilty of negligence as we held. (Harrison v. Bingheim, 350 Ill. 269.) In these circumstances it is difficult for us to understand how a judgment in favor of the two defendants could be entered.

In the petition for rehearing filed by the receivers of the streetcar company, it is also said “It is fundamental that an inference cannot be drawn from a fact or state of facts when an inconsistent inference may as readily be drawn from the same facts or state of facts.” There are- some decisions of this court and probably others where this has been stated, but it is not the law. As we said in Plodzien v. Segool, 314 Ill. App. 40, the law is that where “uncertainty arises as to the inferences that may legitimately be drawn from the evidence so that fair-minded men may honestly draw different conclusions, the question is not one of law.but one of fact to be settled by the jury. Denny, v. Goldblatt, 298 Ill. App. 325; Chicago & N. W. Ry. Co. v. Hansen, 166 Ill. 623; Moore v. Rosenmond, 238 N. Y. 356; Kavale v. Morton Salt Co., 242 Ill. App. 205; Norris v. Illinois Central R. Co., 88 Ill. App. 614; Richmond & Danville R. Co. v. Powers, 149 U. S. 43; Cunning v. Cooley, 281 U. S. 90; Best v. District of Columbia, 291 U. S. 411.” See also Reilly v. Peterson Furniture Co., 314 Ill. App. 46. Note the language of Judge Pound in the Moore case and of Chief Justice Hughes in the Best case.

Rehearing denied.