author: Mr. Justice Stone

text:
    Rosa Lee Cox, Appellee, v. Louis Hrasky et al., Appellants.

      Opinion filed March 2, 1943.
    Beasley & Zulley, of East St. Louis, for appellants.
    Baker, Lesemann, Kagy & Wagner, of East St. Louis, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

Rosa Lee Cox, appellee, hereinafter referred to as plaintiff, brought this action against Louis Hrasky, Genofefa Hrasky, and Alvina Vlcek, appellants, hereinafter referred to as defendants, to recover damages to her means of support, under what is commonly known as the Dram Shop Act.

The suit arises out of the killing of Mose Cox, husband of plaintiff, by one E. C. Hill, which took place in a tavern located on the corner of Third and Winstanley Streets, in East St. Louis, Illinois, on the 30th of January, 1941. The building was owned by defendants Hrasky, and the tavern was being operated by their widowed daughter, Alvina Vlcek, the other defendant. The amended complaint charged that on the date aforesaid, the said E. C. Hill, as a result of then and there drinking alcoholic liquors in the tavern, becáme intoxicated, and while so intoxicated, and as a consequence of his intoxication shot and killed the husband of plaintiff; that the said assault, shooting and killing of the said Mose Cox was in consequence of the intoxication of the said E. C. Hill, whereby plaintiff was deprived of her means of support. Defendants in their answer denied the charges set forth, in the amended complaint, and in addition thereto filed affirmative defenses, which alleged in substance that Mose Cox had made an assault upon the said Hill and that Hill killed him because he was in a state of fright, and not while under the influence of any intoxicating liquors to which plaintiff filed her reply denying generally such affirmative facts. The case was tried by jury and a verdict of $4,500 was returned and judgment entered on the verdict, from which judgment, defendants prosecute this appeal.

From the facts it appears that on the evening in question Mose Cox and another man went to the Hrasky tavern shortly after E. C. Hill and a party of people had arrived there. It appears that Hill was drinking whiskey on his way there. Mose Cox sat with one group at a table and E. C. Hill with another group. At Hill’s table whiskey and soda was ordered, and drank by those there. Some of the witnesses testify to Hill drinking at this time. Hill started to get up from his chair, at the table and as he did so a gun dropped from his pocket to the floor, and as it did so, Mose Cox who was seated two tables away said in an ordinary tone of voice, in substance, ‘1 What did you drop there? You should be more careful or you will get in trouble.” With that Hill got up, picked up the gun, saying, “That’s none of your business” and started shooting. The first shot seems to have been fired into the floor, and other successive shots at Cox. At the time he was shot, Cox had a bottle of beer in his hand; there is some testimony to the effect that he was advancing toward Hill, at that time, but no one testifies as to any threats made by him nor that he held his bottle in any threatening attitude.

Cox was shot several times and fell to the floor. He died there in the tavern. After the shooting Hill backed out of the door with the revolver in his hand, and ran down the alley. He was later apprehended by the police, late that night, in St. Louis.

The statute under which this suit was brought provides in part as follows:

“Every husband, wife, child, parent, guardian, employer or other person, who shall be injured, in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person.” (Section 14, par. 135 of the Dram Shop Act, Ill. Rev. Stat. 1939, ch. 43, par. 135; Jones 111. Stats. Ann. 68.042.) It is contended by defendants that plaintiff cannot recover damages in this case because the complained of intoxication of Hill was as matter of law not the proximate cause. By the above statute a cause of action is given to anyone who may be injured in his person or property, or means of support, by any intoxicated person jointly or severally against such person or persons who have caused the intoxication, in whole or in part, of the person who commits the injury. An action is also given to anyone who may in the same manner be injured “in consequence” of the intoxication of anyone, whether habitual or otherwise, against the parties who may cause such intoxication. In the one case it is for the direct injury inflicted by “any intoxicated person” and in the other it is for such damages as may arise “in consequence” of such intoxication. Where an action is brought for an injury inflicted by the affirmative act of an intoxicated person, and is therefore based upon the clause “by any intoxicated person,” the courts have held that it is not necessary that the intoxication be the proximate cause of the injury. King v. Haley, 86 Ill. 106; Whitside v. O’Connors, 162 Ill. App. 108; Haw v. 1933 Grill, Inc., 297 Ill. App. 37; Martin v. Blackburn, 312 Ill. App. 549. For the purpose of applying this rule, the injury is regarded as having been inflicted by an intoxicated person, not only where the plaintiff himself was injured by the act of an intoxicated person, or such person killed the plaintiff’s means of support, that is, her husband, but also where the loss of support resulted from the suicide during intoxication of plaintiff’s husband or father. 15 R. C. L., par. 206, pages 435, 436. Such was the case in Jack v. Prosperity Globe, 147 Ill. App. 176, where plaintiff’s father had committed suicide, as a result of intoxication and the court there said, “The question of ‘proximate cause’ in a technical sense, in the sense in which counsel argue it, is not involved in this case. A correct statement of that proposition would be ‘That such intoxication caused the death.’ The statute provides that one who shall be injured in means of support, in consequence of the intoxication of any person, shall have the right of action provided therein. It is not necessary to a right of action in this class of cases, under the statute, that the intoxication should be the immediate, direct or proximate cause; it is sufficient if it be the cause, and it is ‘no matter whether the jury would consider it a proximate or remote cause. ’ Kennedy v. Whittaker, 81 Ill. App. 605 (608); Munz v. The People, 90 Ill. App. 647 (653).”

In the case at bar, whether the death of the husband of plaintiff at the hands of Hill was caused by Hill’s intoxication, was a question of fact for the jury, as was the question of whether the intoxication was the result of the serving of liquor by defendants. Martin v. Blackburn, supra; Jack v. Prosperity Globe, supra.

It is earnestly contended on behalf of defendants, that E. C. Hill was not intoxicated, at the time he fired the shots that resulted in the death of Hose Cox, and that in that regard the verdict of the jury was contrary to the manifest weight of the evidence. Larmon Cole, testifying on behalf of plaintiff testified that when Hill came into the tavern he was walking funny. “He was walking reeling and rocking” and-that when he came to the table, he stumbled over the foot of witness. That he was drinking and talking a lot of crazy talk. Witness smelled liquor on his breath. That Hill got up once before the shooting, that is tried to get up and sat back down. He testified categorically, that Hill was drunk. Walter Collins, called as a witness for defendant, testified that Hill had a half pint'of liquor with him in the car, on the way to the tavern and was drinking at that time. He further testified that in his judgment Hill was drinking “pretty heavy” and was drunk. Several other witnesses testified that Hill was drinking whiskey in the tavern. It was also testified to by one witness, that in leaving the tavern, Hill dropped the gun, and made three attempts to pick it up before he succeeded. The jury would have a right to take into consideration the fact that there appeared to be no reason or provocation for the shooting of Cox by Hill in determining whether Hill was intoxicated and whether or not that intoxication was the cause of the killing.

For defendant, Louis Hrasky, one of the owners of the building, and one of the defendants, who was waiting on the tables testified that Hill was sober. Edgar Sherrod and Sedell Mosley, police officers, both testified that Hill.was sober at the time they saw him, but this was about 11:30 or 12 o’clock that night, and the shooting took place a little after 6. John McKeta testified that he saw him about 9:30 that night, .and he was sober. Willie Wade testified that he did not seem to be drunk, but that he only saw him, as he came out of the tavern door and ran down the alley. Asaroe March testified that he did not know if Hill was drinking in the tavern, and that he “didn’t seem to me so much like he was drunk” but admitted that he had testified in another proceeding two months after the shooting when his'recollection was better than at this trial, that Hill was drunk. The evidence in the record being conflicting, these controverted questions of fact are settled by the verdict of the jury. Goad v. Obernagel, 302 Ill. App. 370; People v. Hanisch, 361 Ill. 465; Jones v. Esenberg, 299 Ill. App. 551; Carroll v. Krause, 295 Ill. App. 552. We are not inclined to hold that the verdict herein was against the manifest weight of the evidence.

It is complained of, and assigned as error that the court erred in permitting plaintiff’s witness, Larmon Cole to testify that Hill was drunk. We find no error herein, particularly, as the witness had already described the actions of Hill, as tending to show his intoxication at that time. Whether a person is drunk or sober) are facts patent to the observation of all. Dimick v. Downs, 82 Ill. 570. It is also urged that the court erred in permitting the witness George B. Smith to testify to the earnings of Mose Cox, as determined from an examination of voluminous records in the office of the Hunter Packing Company, by whom deceased was employed in his lifetime. Objection was made that this was not the best evidence. While it was assigned as error relied upon for re-1 versal, that the damages were excessive, this question was not argued in defendants’ brief. Where no argument is addressed to- an assignment of error, it will not be considered. Allen v. McGill, 311 Ill. 170; Goff v. Gerhart, 316 Ill. 513; People v. Cobb, 343 Ill. 78; People v. Rongetti, 344 Ill. 278. Inasmuch as this evidence went only to the matter of damages, and not to that of liability, this would not work a reversal, because, errors therein, if any, are harmless. Reisch v. People, 130 Ill. App. 164, aff’d 229 Ill. 574; Semrau v. Calumet & S. C. R. Co., 185 Ill. App. 203. We do not find it necessary therefore to discuss the above error relied upon for reversal.

Complaint is made of all three instructions requested by plaintiff and given by the court. Number one is in the language of the statute pertaining to ■ the Dram Shop Act, ending by stating the liability to be “for all damages sustained.” Criticism is made that it contains no reference to any evidence in the case, and did not require proof of any fact that would create a liability; However, considering the instructions as a series, defendants’ second instruction told the jury that the plaintiff must prove, by a preponderance or greater weight of the evidence that the intoxication of Hill resulted in whole or in part from drinking liquors which it is alleged he obtained from defendants. Plaintiff’s third instruction told the jury that the damages plaintiff would be entitled to recover were limited to the pecuniary loss, if any, to plaintiff, by reason of the death of her husband. Considering the instructions as a series, it would seem as if the jury were properly instructed. All of the instructions given by the trial court, those for plaintiff and those for defendant should be considered together and if, when so considered they fairly state the law of the case, they are sufficient and omissions of one party’s instructions may be cured by the instructions given by the other. Suehr v. Sanitary Dist. of Chicago, 242 Ill. 496; Moore v. Aurora, E. & C. R. Co., 246 Ill. 56; Bobalek v. Atlass, 315 Ill. App. 514; Shekerjian v. Shekerjian, 346 Ill. 101; Reivitz v. Chicago Rapid Transit Co., 327 Ill. 207; Hale v. Hale, 169 Ill. App. 272.

Plaintiff’s second instruction is criticized on the ground that it is a mere abstract definition of “alcoholic liquor” as set forth in the first sentence of the instruction, while the last sentence defined the word “spirits,” and further that the instruction had no place in the case as there was no evidence of which it was applicable. There is evidence to the effect that the party at the table, of which Hill was • one, drank highballs, of whiskey and soda, which would constitute a blending or mixture described in this instruction and contemplated by the statute. The instruction is in the language of the statute, and such instruction, when pertinent to the issues, is proper. Mt. Olive & Staunton Coal Co. v. Rademacher, 190 Ill. 538; Selman v. Midwest Haulers, Inc., 309 Ill. App. 154, 160; Deming v. City of Chicago, 321 Ill. 341; Minnis v. Friend, 360 Ill. 328.

Plaintiff’s third instruction is criticized as permitting the jury to make a finding in favor of plaintiff without any reference to the evidence. This, we believe, was cured by plaintiff’s instruction number three being considered as a series, with defendants’ instructions 1, 2, 3, and 4, which told the jury what it was necessary to prove in order for plaintiff to recover.

We do not find in the record any error warranting this court in reversing the judgment of the trial court, and the judgment of the city court of East St. Louis will'be affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Martha Holbeck, Appellee, v. Illinois Bankers Life Assurance Company, Appellant.
    Opinion filed March 2, 1943.

      Simpson, Reed & Burroughs, of Edwardsville, for appellant.
    Whitnel, Browning, Listeman & Walker, of East St. Louis, Manuel M. Wiseman, of Alton, and Philip G. Listeman, of East St. Louis, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

This suit is the equivalent of a suit on a life insurance policy, and the appeal is prosecuted from a judgment of $2,350, in favor of Martha Holbeck, appellee, hereinafter designated as plaintiff, and against the Illinois Bankers Life Assurance Company, appellant, hereinafter designated as defendant, when defendant elected to stand on its motion to dismiss or strike paragraphs 12 and 13 of plaintiff’s reply.

The complaint, in the usual form for suits on insurance policies alleged that the Court of Honor, a fraternal benefit society, in the year 1919 issued its certificate to one Sarah Easton; that the Court of Honor suspended business in 1924, but that its assets, including the certificate in question, were assumed chronologically by the Springfield Life Insurance Company, the Abraham Lincoln Life Insurance Company, and defendant; that Sarah Easton died on October 23, 1938, having theretofore kept and performed all the terms and provisions of the certificate, and since her death, plaintiff had likewise kept and performed all conditions precedent. An amendment to the complaint, set forth that the said Sarah Easton died intestate, and left surviving her, as her only heir, her sister, plaintiff herein.

Defendant by its pleading, presented and apparently relied upon one defense; that the original benefit certificate was issued in 1904; that in 1919, Sarah Easton requested a change of beneficiary, at which time a new certificate, differing only slightly from the original, was issued; that the application and the constitution or by-laws were .a part of the contract and that both provided for a forfeiture of membership and all rights thereunder if the member became engaged in the liquor business and that Sarah Easton did engage in the liquor business, to-wit, in March 1934, and did so remain until her death, by reason whereof her certificate became null and void.

Plaintiff filed a- reply embracing several distinct replications, only one of which, embodied in paragraphs 12 and 13 of plaintiff’s reply, is material upon this appeal. This replication, in the nature of a confession and avoidance, confessed the member’s engagement in the liquor business, but avoided by claiming, that because of certain provisions in the application the member had the privilege of keeping her • certificate alive by forwarding to the supreme recorder of the Court of Honor a written waiver, waiving any liability on the part of the society if her death was traceable to the liquor business. The replication further alleged that the Court of Honor was not in existence when Sarah Easton entered the liquor business, and claimed that since a waiver could not be filed with the Court of Honor, defendant was estopped from asserting that the certificate sued upon was void.

Defendant thereafter ■ filed motion to dismiss or strike the reply, particularly directed against paragraphs 12 and 13, on the ground that same were insufficient to constitute an estoppel or an avoidance of the matters set up in the answer. This motion to strike was denied. Defendant refused to plead to the replication in question, stood on its motion to strike, and the court entered judgment nil dicit against defendant in the sum of $2,350, which represents the face value of the policy of $2,000 and 5 per cent interest for three and one-half years.

After this issue of law was disposed of, an issue of fact was made up, to be tried by a jury, over the objection of defendant, said issue being based upon paragraph 14 of plaintiff’s reply to defendant’s amended answer, which in substance set forth that defendant through its duly authorized agents, knew that Sarah Easton was engaged in the sale of intoxicating liquors, and therefore was estopped from asserting that the certificate sued upon was null and void. This issue of waiver was tried before a jury, who returned a verdict in favor of plaintiff. Defendant moved for judgment notwithstanding verdict, which was allowed by the court, whereupon plaintiff prosecutes her cross-appeal, and assigns as cross-error relied upon, error of the court in allowing defendant’s motion for judgment notwithstanding verdict, and in refusing to enter judgment on the verdict of the jury.

In and by the application for membership of the said Sarah Easton in the court of honor, she warranted, as pleaded by defendant :

“I am not now engaged in any of the following occupations, “ ... the . . . sale of malt, vinous, spirituous, or other intoxicating liquors, as a beverage, either as proprietor, stockholder, or employee ....

“Provided that . . . should I engage in the occupation or business of the sale or manufacture of malt, vinous, spirituous or other intoxicating liquors as a beverage, either in the capacity of proprietor, stockholder or employee, that my certificate will thereupon become null and void.

“I agree to . . . conform in all respects to the Constitution, Laws and Rules of the Society, now in force, or which may hereafter be adopted; and that this application, including . . . the law of the Society shall form the sole basis of my admission into, and continued membership in the Court of Honor, and of the Benefit Certificate to be issued to me by said Court of Honor ....

At the time the original application was made and the original certificate of membership issued, there was in full force and effect, as pleaded by defendant, a provision in the constitution or by-laws of the Court of Honor, section 107 as' follows:

“Sec. 107. Persons engaged in the following occupations or who shall engage therein occasionally for hire or otherwise shall not be admitted to benefit membership in this Society (here follows list of many prohibited occupations) . . . persons engaged in the manufacture or sale of malt, vinous, spirituous, or - other intoxicating liquors as a beverage, either as proprietor, stockholder or employee; yardmen or switch-men ; conductor, engineer, firemen, or brakeman on any steam railway train; or any other hazardous business or occupation not herein specifically mentioned: Provided, that ip after having become a member of the Society he shall engage in any of the above named or like hazardous occupations his certificate shall by such fact become forfeited and void, unless before entering upon any of the foregoing occupations he shall file with the Supreme Recorder, upon form prescribed by the Board of Supreme Directors a written waiver of the Society’s liability upon his benefit certificate in ease of his death or disability, either as the result of accident occurring in, or of disease directly traceable to his employment in such prohibited occupation, the acceptance of such waiver to be subject to the approval of the Board of Supreme Directors. If such waiver be not filed prior to the entrance of the member into the prohibited occupation it shall have the same effect if filed at any time during his continuance in such employment, if accompanied by a certificate of present good health, except that the right to make a waiver as herein provided is expressly denied to members engaged in the occupation or business of the sale or manufacture of malt, vinous, spirituous, or other intoxicating liquors, as a beverage, either in the capacity of proprietor, stockholder, or employee.” In the year 1918 the constitution or by-laws were amended by the insertion of section 145, later reenacted as section 130 in the constitution of 1922 and pleaded by defendant, as follows:

“Any member who is now engaged, or shall hereafter engage in the manufacture or sale of malt, vinous, spirituous or fermented liquors to be used as a beverage, either in the capacity of proprietor, stockholder, agent or servant, shall, ipso facto, forfeit his membership in this Society and all rights thereunder and shall moreover forfeit all payments made by him and his certificate of membership shall become absolutely null and void without any action on the part of his local Court or this Society, or any officer thereof; and no payment of assessments, percapita tax or local Court dues thereafter made by him, nor the acceptance thereof by the officers of his local Court or of this Society, shall have the effect of waiving such forfeiture or of reinstating such member to any rights as a member of this Society: Provided that if the occupation so engaged in was not prohibited by the Bylaws at the. date of the issuance of such member’s certificate, nor at the time he engaged therein, the provisions of this section shall not apply: . . . Members engaging in the occupation or business of the sale or manufacture of malt, vinous, spirituous or other intoxicating liquors, as a beverage either in the capacity of proprietor, stockholder or employee forfeit all rights to membership and their certificates shall, ipso facto, become null and void except the members be within the proviso herein.”

The contract in this case is the application of the member, the constitution and by-laws of the society, and the benefit certificate issued by the society to the member, and all are to be construed together. Fullenwider v. Supreme Council Royal League, 180 Ill. 621; Steen v. Modern Woodmen of America, 296 Ill. 104. A person who enters such an association must acquaint himself with its laws, for they are the yardstick of his rights, his duties and his liabilities. By-laws providing for forfeiture of membership upon such member engaging in the liquor business, have been held valid and enforceable by our courts. Mutual Protective League v. Langsdorf, 126 Ill. App. 572; Royal Arcanum v. Cloverdale, 93 Ill. App. 373; Moerschbaecher v. Supreme Council Royal League, 188 Ill. 9. In the application, in this case, the liquor business is singled out as being forbidden, and placed in a class by itself:

“It being understood . . . that should I engage in the occupation or business of the sale ... of liquor . . . my certificate will thereupon become null and void. ’ ’

Again in the constitution of 1903, in full force and effect at the time of the application for membership of Sarah Easton, the liquor business is singled out from 31 other occupations, as being forbidden, as being the one occupation concerning which the member could under no circumstances keep his certificate alive by the filing of a waiver. The proviso, “Except that the right to make a waiver as herein provided is expressly denied to members engaging in the occupation or business of the sale . . . of . . . intoxicating liquors . . .,” limits and modifies the preceding sentence, wherein provision was made for filing a waiver in other prohibited occupations.

Under section 145 of the constitution of 1918, later re-enacted as section 130 of the constitution of 1922, there was still a provision to the effect that any member then or thereafter engaged in the sale of liquors shall forfeit his membership, and contains the proviso that if the occupation so engaged in was not prohibited by the by-laws at the date of the issuance of such member’s certificate, nor at the time he engaged therein, the provisions of this section should not apply. Plaintiff contends that this section would not work a forfeiture, as “nor at the time she engaged therein,” she was not (presumably so) prohibited from engaging therein. But at the time of the issuance of the original certificate in 1909, and the later one of 1919, she was prohibited from doing so. And by the later constitution of 1922, she was prohibited from thereafter engaging in the liquor business, which constitution was in full forcé and effect in 1934, when she did begin to engage in the prohibited occupation. So, unquestionably, Sarah Easton did not come within the proviso.

Counsel for plaintiff argue, that when the Court of Honor went out of business, there was no supreme • recorder, with whom plaintiff ■ could file a waiver. Inasmuch as we are constrained to hold that there is no ambiguity in this contract of insurance, and that plaintiff did not come within the proviso, with reference to waiver, that question is not material here. Under the contract in question there was nothing Sarah Easton could do to avoid a forfeiture, if she sold intoxicating liquors; that she did so is admitted by paragraphs 12 and 13, and the trial court erred in not allowing the motion to strike said paragraphs.

The issue of fact, based upon paragraph 14, of plaintiff’s reply, was predicated upon the theory that defendant knew of Sarah Easton’s engagement in the liquor business, yet continued to accept her premiums and became thus estopped from asserting nonliability. To support this contention," plaintiff offered one witness, as to the. controverted facts, Martha Holbeck, who testified in substance that between 1933 and before 1937, she assisted her sister, Sarah Easton, about her place of business in Bethalto, Illinois; that some man whose name seems to be unknown, came to their place in the winter of 1935, that he stated his business, and her sister got out her insurance policy and assumption certificate, and showed it to him, whereupon he checked with his book, which witness described as a “regular insurance book.” She further testified that he checked with records he had with him. He then gave her a card, . . . which was not produced upon the trial and told her that the Illinois Bankers . Life at Monmouth had taken this over and to thereafter send her premium payments to Monmouth. He told Sarah Easton, so witness testified, that he was a representative of the Illinois Bankers Life. Witness further testified that during the half an hour this man was there, beer was served to customers.

The law is well settled in Illinois that an agent cannot confer power on himself and his agency or authority cannot be established by showing what he said or did. Dodson v. Loaleen Mut. Benefit Ass’n, 247 Ill. App. 283; Standard Mut. Benefit Corp. v. State, 197 Ark. 333, 122 S. W. (2d) 459; Sommerio v. Prudential Ins. Co. of America, 289 Ill. App. 520, 523, 524; Chicago v. Jewish Consumptives Relief Society, 323 Ill. 389, 395, 396, King v. Chicago, B. & Q. R. Co., 235 Ill. App. 401, 407; Connecticut Fire Ins. Co. of Hartford, Conn. v. Baker, 278 Ky. 245, 128 S. W. (2d) 547, 3 C. J. S., sec. 322, page 276.

In the case of Dodson v. Loaleen Mut. Benefit Ass’n, supra, as in the case at bar, the disputed fact of agency was attempted to be proven by what the alleged agent said and did. There the court said at page 286, “The fact of agency or the authority of the agency cannot be established by showing what the agent said or did, and the power of the agent can only be proved by tracing it to the source of* authority — the principal— by some word or act of such principal. (Merchants Nat. Bank of Peoria v. Nichols & Shepard Co., 223 Ill. 41.) An agency cannot be proved by the mere declarations of the supposed agent, when the fact of the agency is in issue.” The testimony of plaintiff with reference to all things said and done by this supposed agent was clearly incompetent, and without any evidence of agency, there could not possibly be any notice to defendant, and without such evidence a directed verdict was mandatory.

The trial court did not err in allowing defendant’s motion for judgment notwithstanding the verdict in plaintiff’s favor on the issue of fact raised by paragraph 14 of plaintiff’s reply and defendant’s rejoinder thereto, as the verdict was clearly against the manifest weight of the evidence.

For the reasons above indicated the judgment of the trial court in entering judgment notwithstanding verdict in favor of defendant is affirmed. The judgment entered in favor of plaintiff and against defendant for its failure to plead to paragraphs 12 and 13 of plaintiff’s reply is reversed and remanded to the circuit court of Madison county with directions to strike paragraphs 12 and 13.

Reversed in part, with directions.