text:
    Howard Hudson, Appellee, v. Slack Furniture Company, Appellant.

      Opinion filed March 2, 1943.
    Whitnel, Browning, Listeman & Walker, of East St. Louis, for appellant.
    Virgil Jacoby, of Alton, and MacDonald, Meyer & Meyer, of East St. Louis, for appellee.
   Mr. Presiding Justice

Culbertson delivered the opinion of the court.

This is an appeal from a judgment of the city court of East St. Louis, in favor of Howard Hudson, appellee (hereinafter called plaintiff), as against the Slack Furniture Company, appellant (hereinafter called defendant), in the sum of $500. The action arose out of a libel suit brought by plaintiff against the Slack Furniture Company on a complaint in which plaintiff alleged, in substance, that he had purchased a stove from defendant on the instalment plan; that he was employed by the B. & 0. Railroad Company; that the defendant, with full knowledge, maliciously intending to injure plaintiff in his employment, maliciously wrote and published a malicious libel in the form of a wage assignment on which defendant forged plaintiff’s signature and which wage assignment was addressed to plaintiff’s employer, the Railroad Company; that plaintiff’s employer had a rule in force that wage assignments subjected employees to dismissal; that the exhibition of the forged wage assignment to plaintiff’s employer and the demand for plaintiff’s wages made on plaintiff’s employer by defendant “intended to, and did, charge plaintiff as being unfit and as a person of no worth in his business obligations and employment”; and that by means thereof plaintiff was injured in his good name, reputation, credit, and employment, and that his position with the Railroad Company was impaired, and that he fears the loss of his employment as the result thereof. By amendment during trial, plaintiff alleged specifically that he was required to expend certain sums of money in securing the release of the wage assignment, for meals, hotel, bills, and automobile expenses. Those were the only items of special damage alleged in the complaint. The defendant, in its answer, denied the averments of the complaint, separately.

The evidence discloses that the plaintiff had worked for the Railroad Company as a freight agent and telegrapher, and was employed chiefly as a telegraph operator. In October of 1939 plaintiff purchased a stove from defendant on a conditional sales contract. He paid three monthly $5 instalments on the stove when the door of the stove broke as the result of what plaintiff contends were defective materials. Plaintiff stated that he wrote defendant three times about the defects and refused to make further payments until an adjustment on the defect was made. At the time of making the contract plaintiff signed a number of papers, but was positive he did not sign a wage assignment.

In April of 1940, the credit manager of the defendant company, called the plaintiff by long-distance telephone, demanding $15, and plaintiff told him he would not pay it until the stove was fixed, and the credit manager then told the plaintiff he had a wage assignment in with the general solicitor of the Railroad, and that he would let the assignment go through. The plaintiff replied that if he did he would sue the defendant company. Thereafter, the credit manager did turn in a wage assignment (which the evidence indicates was never signed by plaintiff), with plaintiff’s signature apparently forged on it. The evidence shows that the Railroad Company notified the plaintiff thereof, and reprimanded him, and that plaintiff left his work to go to the defendant Company in Bast St. Louis'to get the assignment out of his employer’s record.

When the plaintiff went to the Slack Furniture Company’s store, the credit manager gave him a letter to the Eailroad Company (which was requested by plaintiff), in which he stated that the assignment was due to a gross misunderstanding on the part of both plaintiff and the defendant company, and that plaintiff had purchased a stove, which later proved defective, and of which defendant had no knowledge, and that plaintiff’s letters setting forth his complaint were either misfiled or lost in the mail, and that the defendant knew nothing about the fact that such complaint existed, and that the matter was all adjusted, and that it was hoped that the Eailroad Company would not hold it against the plaintiff’s record. Plaintiff was given a new stove door to replace the old one.

It was shown that plaintiff had made two trips to the defendant’s store in Bast St. Louis, one from Mitchell, Indiana, and one from Bedford, Indiana, in the process of having the matter adjusted.

The Eailroad- Company had a rule that an employee would be dismissed if his wage assignment was served on the company. The rule was to, the effect that upon the making of a first assignment of wages, an employee is to be warned, and if a second assignment is made, it will be sufficient cause for an employee’s dismissal, unless, in either case, there are extenuating circumstances.

After plaintiff had paid the balance on the stove, and after the defective part had been replaced, plaintiff demanded the wage assignment which the credit manager claimed he had signed, but defendant was unable to -produce any wage assignment which was signed by plaintiff, and it was shown that the wage assignment which was served on plaintiff’s employer was not one which was signed by plaintiff. A number of exhibits were introduced by plaintiff, some of which were communications between officials of the Railroad Company, which were identified solely by the plaintiff and introduced over objection of counsel for defendant. The only evidence of special damage, in accordance with the allegations of the complaint, was furnished by the testimony of plaintiff showing the expenses for himself to come to Bast St. Louis for the purpose of straightening out the matter, and the loss of one day’s work in the taking of his deposition in the case. Plaintiff’s wages were not at any time withheld by reason of the service of the wage assignment, and there was no showing in the record of any specific loss resulting to plaintiff on that account. Aside from the warning issued plaintiff from the officials of the Railroad Company, there is no specific showing of damage to plaintiff in his employment.

The defendant contends that the defendant’s motion for a directed verdict offered at the close of all the evidence, and motion for judgment notwithstanding the verdict, should have been granted by the court, or that the motion for a new trial should have been granted, and, specifically, contends that there were improper and incompetent exhibits and other incompetent evidence in the record; that there was error in the giving and refusing of instructions; and that the verdict was excessive.

It will be noted that under the allegations of the complaint, plaintiff’s action was a libel action and, on the basis of the evidence in the record, it was apparent that plaintiff proceeded in this cause on the assumption that the publication of the false wage assignment was libelous per se.

The wage assignment to which reference was made was in the regular form for such assignments, by the terms of which the plaintiff purportedly assigned to the defendant company 25 per cent of his earnings, by reason of his employment with the Railroad Company. None of the words of the wage assignment in and of themselves were libelous, and did not impeach the honesty, integrity, virtue, or reputation of the plaintiff, nor was there anything in the wage assignment which, as plaintiff avers, charged plaintiff as being “unfit and a person of no worth in his business obligations and employment.” The plaintiff was a telegrapher and it was not shown that the maintenance of good credit was essential or necessary to the performance of his duties as a telegrapher, in contrast to the situation, which obtains as to a merchant or trader, to •whom credit is most essential. Plaintiff had a legal right to secure his indebtedness with a wage assignment. To publish falsely that he had done so could not have imputed to him any dishonesty or reflected upon plaintiff in his position or skill as a telegrapher. We must > conclude that the publication of the false wage assignment could not be libelous per se, so as to make it unnecessary to allege and prove special damage.

As indicated by this court, in Wright v. F. W. Woolworth Co., 281 Ill. App. 495 (although the distinction between written words and spoken words is emphasized), the five classes of cases which, at common law, would give rise to a cause of action for their false utterance here, were (1) Words imputing to a party the commission of a criminal offense; (2) Words which impute that the party is infected with some contagious disease, where, if the accusation be true, it would exclude the party from society; (3) Defamatory words which impute to the party unfitness to perform the duties of an office or employment for profit, or want of integrity in the discharge of duties of such office or employment; (4) Defamatory words which prejudice such party in his or her profession or trade; and (5) Defamatory words which, though not in themselves actionable, occasion the parties special damage. As indicated in that case, the common-law rule has been thoroughly established, and as such, is the law of this State, except where it has been changed by statute (in the Slander and Libel Act which has included certain types of accusations which are not applicable to the facts in the case before us). In the instant case the alleged libel could only be included in the fourth or fifth categories referred to.

Before the publication of the wage assignment could be considered as libelous per se, such words must have prejudiced the party in his profession or trade. In Nowell’s Libel and Slander, Fourth Edition, at page 162, an illustration is set forth which clarifies this type of libel. It is stated, for example, “Mr. Brown says of Mr. Smith, a carpenter, that he is incapable of making up a physician’s prescription, and he also says of Mr. Jones, a chemist and a druggist, that he cannot construct a door or mend a table. Obviously, such assertions convey no injurious imputations to the parties of whom they are made. But, if they are employed inversely to the parties in question, the words may have the effect of seriously damaging each in his own particular trade or employment; that is, touch him in his trade, office, or profession.” It cannot be stated in the instant case that the pública^ tion of a wage assignment which implies the failure of plaintiff to pay his debts, affects or touches him in his capacity as a telegrapher.

In Holtz v. National Furniture Co., 57 F. (2d) 446, the court, in passing upon a libel action based upon a letter and telegram to a buyer, setting out the failure of the plaintiff in that case to pay a debt, it is stated (at page 447), “A writing concerning a person who is not a trader or a merchant, or engaged in an occupation where credit is essential to success, charging that he failed to pay a just debt, is not libelous per se, and a declaration in libel making such an allegation, without alleging special damages, is demurrable. As respects a charge of failure to pay debts, without any imputation of insolvency, it seems to be settled that a writing containing a mere statement that a person who is not a trader or merchant, or engaged in any vocation wherein credit is necessary for the proper and effectual conduct of his business, owes a debt and refuses to pay, or owes a debt which is long past due, is not libelous per se, and does not render the author or publisher of such statement liable, without proof of special damages. Such a statement does not, in a legal sense, necessarily expose the person of whom it is said to public hatred, contempt, or ridicule, nor does it degrade him in society, lessen him in public esteem, or lower him in the confidence of the community.” In that case, the case of Stannard v. Wilcox & Gibbs Sewing Mach. Co., 118 Md. 151, 84 Atl. 335, 42 L.R.A. (N. S.) 515, was cited with approval. In the Maryland case, the court held that a letter written to an employer of a plaintiff, referring to the failure to pay a debt owing the defendant, was not libelous per se, so as to entitle plaintiff to recover without proof of special damage. It was emphasized that the plaintiff in such case had no occasion for the use of credit, or that his credit was not in any way impaired or affected, and that the statement in no way related to the manner of his performance of his duties in his work, and that it was not shown that he lost his position as the result of the latter, “in which case he would have sustained special damage.”

It is, therefore, apparent that the publication of the wage assignment was not libelous per se, and that a recovery, under the facts, in a libel action, must be based upon proof of special damage.

We are unable to discover from the record, any proof of special damage to plaintiff, other than certain expenses sustained by plaintiff as the result of his trips to East St.. Louis, as hereinbefore referred to. As a consequence, we cannot conclude that plaintiff suffered damages in the sum of $500, which proximately resulted from defendant’s wrongful conduct. It therefore follows that the verdict of $500, based upon the allegations of the complaint and the evidence in this case, was excessive.

A number of other grounds for reversal are set forth by the defendant herein, but in view of what we have stated, it will not be necessary that we discuss such grounds in detail.

What we have said with reference to the matters before us is to be applied only to the facts of this case and to matters relating to a libel action. The defendant company in the use of a false wage assignment was guilty of tortious conduct toward plaintiff, which can form the basis of a cause of action in favor of plaintiff and against defendant, and would, if plaintiff is able to prove that such conduct occasioned damage to him or that the conduct was of such character as to justify punitive damages, entitle plaintiff to recover all damages resulting from such tortious conduct on the part of the defendant.

In accordance with the views which are herein expressed, and by reason of the fact that the verdict in this cause cannot be sustained under the complaint, and the evidence herein, this cause will be reversed and remanded for new trial, to the city court of East St. Louis.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice

license: Public Domain

text:
    J. J. Buttles, Appellant, v. B. T. Adkins, Appellee.

      Opinion filed March 2, 1943.
    Maxfield Weisbrod, of Chicago, and Kiger & Dilsaver, of Mattoon, for appellant.
    Isley & Wilson, of Newton, for appellee.
   Mr. Presiding Justice

Culbertson delivered the opinion of the court.

This is an appeal from a finding and judgment, of the circuit court of Jasper county, without intervention of a jury, in favor of B. T. Adkins, appellee (hereinafter called defendant) as against J. J. Buttles, appellant (hereinafter called plaintiff), in an action for real estate brokerage commissions.

The action was instituted by plaintiff, as against defendant, to recover the sum of $35,000, together with interest thereon at the statutory rate, from July 22, 1930, to the date and day of judgment, being for the approximate sum of $55,000. The action was based upon three instruments in writing, two of which were signed by the defendant and one W. W. Sterling, and the third instrument was signed by the same parties and by plaintiff. Defendant admitted the execution of all three instruments, but asserted that in the third instrument, which was signed by plaintiff, there was an alteration made after all of the. signatures had been affixed thereto, without the consent of either defendant or Sterling, The evidence of both defendant and Sterling supported this contention, although the evidence for the plaintiff was to the contrary and indicated that the interlineations on such exhibit were made before the instrument was signed. The first agreements referred to above resulted from a meeting of the defendant and Sterling with reference‘to certain property owned by the defendant and Sterling. The details of such agreements are not significant for the purposes of this opinion. It will suffice to state that it was contemplated that the properties owned by Sterling and Adkins were to be consolidated and a corporation was to be formed. The third instrument executed by the plaintiff, the defendant, and Sterling, and upon which the claim of plaintiff is primarily founded, was introduced in evidence and shown in the .amended complaint in the following form:

“J. J. Buttles
July 22nd, 1930

As per contract, dated and signed as of the above date, between W. W. Sterling and B. T. Adkins in which they agree to consolidate and form a Corporation known as the National Gardens Jersey Farms Corporation, of which B. T. Adkins is to be the President, J. J. Buttles to be Vice President and W. W. Sterling to be Chairman of the Board of Directors, it is understood by and between the three parties to this transaction that the Corporation is to be formed, and the amount is to be $500,000.00, and that J. J. Buttles is to be paid for his services in this transacThirty-five tion, which have been rendered, the sum of Fifty 35 cash or Thousand Dollars ($56-,000.00) A in stock in this Corporation. He is also to be the exclusive broker for this Corporation for the selling of the two buildings owned by the Corporation and also such lands in Florida as the Corporation agrees to sell, and is to be paid the regular Beal Estate Board Commission for his services in the sale of these properties. This exclusive sale contract is to be good for two years from signing this contract the date of A the closing of this transaction, and from then on unless otherwise notified to the contrary by the Corporation.

(Signed) B. T. Adkins
(Signed) W. W. Sterling
Accepted J J. Buttles (Signed) ”

In the original complaint filed by plaintiff such instrument was shown without any amendments being shown thereon. The evidence discloses that both Sterling and the defendant had stated that they did not have any money and offered the stock to the plaintiff Buttles so as to have him work with them to raise sufficient cash to operate and to organize the corporation. Buttles (it was testified) was unable to sell certain property, and as a result, no money was raised and the corporation was never formed. It was the testimony of both the defendant Adkins and of Sterling that Buttles was to receive stock in the corporation which was to be formed, and that the interlineations referring to “cash or” stock were made after the agreement had been signed. It was likewise testified by Sterling and the defendant that Buttles was to be vice president in the corporation and there was a distinct understanding that Buttles was to sell one of the properties before the corporation was organized, and that the corporation, was never organized for the reason that Buttles never produced a buyer for the property. The evidence also showed that neither the defendant Adkins nor Sterling had received any substantial benefits from any services which were rendered by Buttles in connection with the transaction involved in this proceeding.

A previous action had been instituted by Buttles, as against Sterling, but a nonsuit had been taken in such action, and after waiting nine years, the present action was instituted as against defendant by Buttles. After the introduction of evidence, both oral and written, on the part of both plaintiff and defendant, the trial judge found the issues in favor of the defendant and rendered judgment in bar of the action against the plaintiff. It is contended by the plaintiff that such conclusion of the court was erroneous for a number of reasons, but principally on the ground that judgment should have been entered in favor of plaintiff on the pleadings, that the written obligation entitled plaintiff to a recovery as against the defendant, and on the ground that the conclusion of the court below was against the manifest weight of the evidence.

Plaintiff made no effort to strike the answer of the defendant for lack of verification, and proceeded with the introduction of evidence in support of the agreement in its modified form. We feel there is, therefore, no issue on the pleadings for determination by this court. The failure to file a verified answer only dispenses with proof of execution of the instrument and its validity may still be questioned (Perry v. Western Motor Car Co., 279 Ill. App. 195). Prom a reading of the agreement executed by the parties hereto, and upon which this action is based, even as amended, its meaning is open to some doubt and it cannot be stated that it is unambiguous, or that it represents all of. the engagements of the parties relating thereto.

The contemporaneous instruments under consideration in this matter may be construed as a single instrument, but extrinsic evidence was properly admitted to show the meaning where the language was susceptible of more than one construction (Wolf v. Schwill, 289 Ill. 190). It has consistently been held that where any doubt exists as to the meaning of a contract, resort may be had to the circumstances surrounding its execution (Adams v. Gordon, 265 Ill. 87; Gould v. Lewis, 267 Ill. App. 569).

In the construction of such a contract as appears in the instant case it is proper to ascertain the circumstances surrounding the parties and the object they had in view, so as to give effect to their real intention, whenever that can be done without violence to the plain meaning of the language used (Wolf v. Schwill, supra; Hedrick v. Donovan, 248 Ill. 479). It is apparent from the testimony of both Sterling and Adkins that Buttles was to receive stock in the corporation which was to be formed, or cash in the alternative if Butties’ contention is sound and that he was to make sale of one of the properties for the purpose of raising money to make possible the formation of the corporation. His failure of performance in this regard precludes his recovery on .the executed contract (Lawrence v. Rhodes, 188 Ill. 96).

Upon a review of all of the evidence introduced in this cause and of the agreement which is made the basis of the action, there was apparently a joint undertaking by the defendant and Sterling and the agreement was not an unconditional promise to pay any fixed amount at any fixed time, or for any definite service previously rendered, but was contingent upon the carrying into fulfilment of its terms, that is, the organization of the corporation. It is also apparent that a condition to the organization of the corporation was the performance by Buttles of his undertaking to sell one of the properties to furnish the funds with which the corporation was to be organized. The fact that the large amount of compensation was to be paid is a sound indication of the improbability that the contention of plaintiff was correct, and was entirely consistent with the testimony of the defendant and Sterling as to the nature of the agreement and its object. As stated in the case of Allen v. Mosser, Willaman & Co., Inc., 336 Ill. 500, at page 504.

“The large amount of compensation offered might indicate that the possible uncertainty of á successful syndication . . . was in the minds of the parties when the proposal or agreement was made and accepted. It is unquestionably true that no such large payment of money as herein involved would be provided for in a contract for personal services where no time of employment is recited, or amount of services is particularly specified, without the clear implication and understanding between the parties that the payment of such compensation was dependent upon the successful result of the undertaking involved. . . . It might be said that the contract expressed the idea of a sort of co-operative relationship whereby the services and efforts of both parties thereto were required to be expended in obtaining the intended and desired result. However, an analysis of this entire agreement reasonably results in tlie conclusion that payment to Allen was not to be made, unless the undertaking for which his alleged skill and experience was sought, was carried to a successful conclusion. ’ ’

Similarly, in the instant case, the testimony of defendant and Sterling to the effect that the plaintiff was to make sale of one of the properties as a preliminary to the organization of the corporation, seems consistent with the agreement upon which the-claim of plaintiff is based. The successful organization of the corporation was apparently intended as a preliminary condition to payment of anything to Buttles.

We have not discussed in detail the very persuasive testimony of the defendant and Sterling that the agreement was modified to provide for payment in cash, after it had been signed by the parties and without their consent, for the reason that it is unnecessary to discuss such evidence further in view of our conclusion set forth herein.

This cause was tried by the court below, without a jury. This court, on review, is not authorized to substitute its findings of fact for those of the trial court, unless the conclusions of the court are clearly against the manifest weight of the' evidence (Mousette v. Monarch Life Ins. Co., 309 Ill. App. 224; Chamblin v. New York Life Ins. Co., 292 Ill. App. 532).

We cannot say that the trial judge who heard the evidence and saw the witnesses who testified in court, has come to a conclusion that is clearly erroneous. The judgment of the circuit court of Jasper county in favor of the defendant will, therefore, be affirmed.

Judgment affirmed.


author: Mr. Justice Bristow

text:
    Thomas W. Moore, Appellee, v. Monarch Distributing Company, Appellant.
    Opinion filed March 2, 1943.
    Karns & Bandy, of East St. Louis, for appellant.
    Philip G. Listeman and Robert Rutledge, both of East St. Louis, for appellee; Whitnel, Browning, Listeman & Walker, of East St. Louis, of counsel.
   Mr. Justice Bristow

delivered the opinion of the court.

Thomas W. Moore was the organizer of the defendant corporation known as the Monarch Distributing Company, which was created to engage in the wholesale liquor business in East St. Louis, Illinois. Moore was the owner of two hundred forty-eight shares of its stock. The only other two shares outstanding were in the names of Henry Keefe and Robert Spotz. Moore was the president of the corporation and Spotz was its secretary.

Lee Miller and Joseph S. Meyer of Springfield, Illinois, became interested in the purchase of this business. Meyer made an inventory of the corporation’s assets and on July 1, 1939, Moore resigned as director and president, and Lee Miller was elected as his successor, Meyer was elected vice president and Spotz continued as secretary until sometime in October of that year.

Moore then entered into an agreement with the corporation agreeing to dispose of his interest which was represented by the two hundred forty-eight shares of its capital stock for the sum of two thousand dollars. This was paid by the corporation executing and delivering four promissory notes in the sum of five hundred dollars each, one of which became due January 1st, the second February 1st, the third March 1st, and the fourth ■ April 1st of 1940. Whereupon, Moore turned his two hundred forty-eight shares of stock back into the treasury of the company.

About the 1st of January, 1940, Moore made an effort to collect his first note. He would call on the telephone. The answer usually was that Mr. Meyer was out of the city and could not be reached. When Moore would drive by the place of business and see Meyer’s car on the outside he would drop in and request payment, but he received only promises. This experience was repeated in his undertaking to collect the note which was dne on February 1st. Then on the night of February 19, 1940, Moore drove by the Monarch Distributing Company’s warehouse and observed a light on and considerable activity in the basement where some five to seven hundred cases of liquor had been stored. He returned early the following morning and discovered that they were loading a truck with gin and whiskey; a further investigation disclosed that practically the entire stock was loaded out. He then proceeded to the front office to interview Meyer who explained that he was transferring the stock of merchandise to a warehouse in St. Louis, Missouri, and being in another State he could settle more easily with his creditors. He assured Mr. Moore most faithfully, however, that he need not fear about the payment of his notes.

Moore, notwithstanding these solemn assurances, did have fear, so he proceeded to inquire about the status of the bank account of the corporation. He found a substantial balance there and immediately filed his affidavit for an attachment against the defendant and alleged that the defendant was indebted to him and that he was about to fraudulently conceal, assign or otherwise dispose of its property so as to hinder and delay its creditors. An attachment writ was issued and served on the bank, but in the interim Meyer had succeeded in withdrawing a substantial portion of the account. On March 9,1940, Moore, who we will now call plaintiff, filed his complaint predicated upon the four judgment notes in question. A judgment by confession was thereupon entered. On March 14, 1940, the defendant filed an answer together with certain affirmative defenses, also a traverse to the affidavit for attachment and demanded a jury trial. On July 11, 1940, defendant filed several verified motions to set aside the aforesaid default judgment. The motions were supported by the affidavit of the now president, Joseph S. Meyer. He stated therein that he could and would testify to all matters constituting those affirmative defenses. The trial court denied defendant’s motion and upon appeal to this court this order was reversed (Moore v. Monarch Distributing Co., 309 Ill. App. 339).

Thereupon the case was reinstated in the trial court and the plaintiff filed a reply denying the affirmative defenses. These defenses were two in number, namely, number one being for want of consideration, and number two, want of authority in Lee Miller, then president, to execute and deliver the notes in question. The jury trial resulted in a verdict for the plaintiff in all issues. After overruling defendant’s motion for new trial and judgment non obstante veredicto a judgment was rendered on the verdicts for the plaintiff and against the defendant. From this judgment this appeal developed.

To reverse the judgment defendant makes two contentions. The first is that the verdict is against the manifest weight of the evidence; the second, that the-verdict was induced by certain inflammatory arguments made by plaintiff’s attorney while addressing the jury.

That the corporation is not liable on the notes in question it is argued by the defendant that Lee Miller was actually the purchaser of the stock; that it was a transaction solely between Moore and Miller. In support of this contention the defendant produced as a witness Mr. Spotz who was then secretary, to attest the correctness of certain minutes of the corporation, where on July 1, 1940 a resolution was passed at a board meeting wherein it is stated that Moore sells his stock to Lee Miller. The record discloses that Spotz was regularly employed as a filling station attendant; that he was not a salaried secretary and spent no time in attending to the affairs of the corpo- . ration’s business, except as minutes were presented to him to be signed. He did not remember positively about anything but understood that such and such were true. He did not remember seeing the stock transferred to anyone. A careful reading of the transcript of his testimony reveals that he must have been a very unreliable and unconvincing witness. The defendant did not produce the stock records which would certainly have shown the true status of the transaction. The plaintiff on rebuttal denied the correctness of the minutes referred to herein.

Lee Miller was called as a witness on behalf of the defendant. He testified that on July 1, 1940 he acquired the two hundred forty-eight shares of stock in question, and quoting from his testimony — “I paid somebody for them; I did not pay the Monarch Distributing Company direct. I signed notes for Two Thousand Dollars to Thomas W. Moore. He has those notes. The notes he is suing on are the notes I had signed.” Q. “That’s the way you paid for your shares of stock, is it, you signed notes to Thomas W. Moore?” A. “I signed those notes.” Later he said on cross examination, “Moore assigned his full two hundred forty-eight shares of stock to the corporation. It was in payment of these two hundred forty-eight shares that these four notes were drawn.” It appears therein that Miller toqk nothing and surrendered nothing by virtue of this transaction. If there was a sale of stock from Moore to Miller no corporation meeting and resolution would have been necessary.

It is indeed strange and of more than passing significance that Meyer never appeared at the trial as a witness. His absence is not explained; it isn’t even mentioned. It was on the strength of his affidavits that the right to this trial was had. He was the guiding force of the corporation’s affairs. He, alone, could have explained when collection on the notes in question was sought from him, why he did not say in effect, “why, Mr. Moore, these are the obligations of Mr. Miller and not those of the corporation.” Further, it was he who could have explained when he was stealthily and in the darkness of night moving all of his assets to another state; why he said to Moore, “I will take care of you alright, I just want to be in a position to cheat my other creditors by having my merchandise transferred to another state. ’ ’

The story of the defense is somewhat involved and the jury is to be complimented for arriving at a correct result notwithstanding the confusion that must have prevailed during the trial. Plaintiff’s lawyer, in one of his arguments to the jury, made the remark that the defense in this case was “cooked up”, and defendant complains bitterly that such error must have been the cause of the jury reaching the result that they did. The characterization certainly was not meant as any reflection upon the honesty of eminent counsel for defendant, but it fairly accurately brands the conduct of Meyer. The defense interposed herein appears to be a child of the same brain that conceived the plan to flee from the State of Illinois with his property to escape paying what he was honestly obligated to pay. We do not believe that the argument' mentioned can be severely criticized. We Imow of no authority that condemns any argument that is based upon the evidence in the case, or that is based upon reasonable inferences that can be fairly deduced from the evidence.

We do not feel called upon in view of the foregoing facts to cite any authorities to justify our view that the judgment entered in this case is correct and should be affirmed.

Judgment affirmed. ■


text:
    T. E. Egner, Appellee, v. Fruit Belt Service Company, Appellant.
    Opinion filed March 2, 1943.
    Donald A. Miller, of Cairo, for appellant.
    J. Kelly Smith, of Mounds, and D. B. Reid, of Cairo, for appellee.
   Mr. Justice Bristow

delivered the opinion of the court.

This is an action for damage to the plaintiff’s real estate, consisting of a store building and residence situated in the village of Ullin, Pulaski county, Illinois, caused by the construction by the defendant of four large oil storage tanks diagonally across the street from and within a short distance of the plaintiff’s premises; an answer was filed by the defendant denying all the material allegations of the complaint. The case was tried before a jury, and it returned a verdict finding the defendant not guilty. Motions for a directed verdict were made by the defendant, both at the close of the plaintiff’s evidence and at the close of all the evidence. Thereupon, the trial judge entered a judgment non obstante veredicto for the plaintiff and against the defendant in the sum of $1,250. It may be explained that it was by agreement of the parties to this proceeding that the judge was permitted to assess whatever damages he thought the evidence introduced at the trial on this subject would sustain. The defendant appealed from the judgment.

It appears from the record that the only question presented to this court for decision is whether or not the trial court erred in setting aside the jury’s verdict and entering a judgment non obstante veredicto. It hardly requires the citation of authorities to support the well-established rule in this State that the trial judge is not authorized to weigh the evidence and can grant a motion for judgment non obstante veredicto only where there is no evidence, construed most favorably for the defendant, which reasonably tends to support his defense. Supporting the principle, the following authorities may be cited: In McNeill v. Harrison & Sons, Inc., 286 Ill. App. 120, the court said at pages 128, 129: “If it were permissible for a trial judge on a motion non obstante veredicto to weigh the evidence and enter a judgment according to his opinion as to wherein lies the greater weight of the evidence, then the right to a trial by a jury would be done away with and the judgment of the court substituted therefor. It is only where there is no evidence as a matter of law to sustain either a plaintiff’s or a defendant’s claim that a judgment may be rendered notwithstanding the verdict.” In Emge v. Illinois Cent. R. Co., 297 Ill. App. 344, this court said at page 347: “In ruling upon a motion for a judgment non obstante veredicto the trial court, and this court on appeal, have no authority to weigh and determine controverted questions of fact. In the consideration of such a motion the court is governed by the same rules applicable to a motion for a directed verdict.” In Larimore v. Larimore, 299 Ill. App. 547, this court said at pages 548, 549: “A motion for judgment notwithstanding the verdict is, in effect, the same as one to direct a verdict (Synwolt v. Klank, 296 Ill. App. 79), and as such is tested by the same rule, which is that the motion raises a question of law and all the trial court is empowered to do is determine whether there is, or is not, evidence which construed in its light most favorable to the party against whom the motion is directed, reasonably tends to prove the contention of such party. If there be such proof the court is bound to overrule the motion, even though of the opinion that the greater weight of the evidence may appear to be on the other side; Mirich v. Forschner Contracting Co., 312 Ill. 343; Capello v. Chicago & N. W. Ry. Co., 280 Ill. App. 471.” The most recent case is that of Hunt v. Vermilion County Children’s Home, 381 Ill. 29.

A careful study of the record in this case discloses that there was an abundance of evidence from which the jury could properly find for the defendant. The proof in this case is about as follows: The plaintiff testified that his property consisted of a store and dwelling and across the street was a supply house where grease and oils were kept. Adjoining this supply house the defendant erected in April 1936 four tanks, about 10 feet in diameter and between 25 and 30 feet high. The first tank was about 45 feet from the house and the others further along, lined up in a row. The Illinois Central Railroad was on the other side of the supply house and tanks. These tanks were'filled from railroad cars and the products dis.tributed by truck which came and went at all hours of the night. From these tanks came fumes and unpleasant odors. The plaintiff further testified that his view was obstructed by the tanks, and that before they were erected his property was- worth $2,500 and at the time of the suit, only $300.

The plaintiff produced a few other witnesses that testified that they noticed fumes at varying intervals. The tenant occupying the property in question said that he noticed the fumes occasionally, but that they did not bother him. ' These witnesses placed a value on the property at from $2,300 to $2,500 before the erection of the tanks and $400 at the time of the suit.

One witness called on behalf of the defendant testified that the first tank was 60 feet from the grease house and that the tanks were each 10 feet and 6 inches in diameter and 18 feet high with the capacity of 11,500 gallons each. He further testified that fumes could escape when the truck tanks were being filled. Several witnesses testifying for the defendant said that they did notice fumes at infrequent intervals, but that they were neither obnoxious nor unpleasant. One witness for the defendant valued the property at $500 before the tanks were built and the same when suit was filed. Other witnesses gave, values of $1,800 and $1,500 before the tanks were built and $1,600 and $1,300 respectively when the suit was filed. They testified further, in substance that the above diminution in value was not in any way attributable to the construction of the tanks, but the natural depreciation of values of real estate in small villages, such as the one in question.

It appears therefore, very clearly from the recital of the above facts, that there was some evidence upon which the jury could reasonably decide that the plaintiff had not been damaged, and was fully justified in returning its verdict of not guilty. Certainly the trial court cannot say as a matter of law there was no evidence to sustain the verdict of the jury. It therefore erred in entering the judgment notwithstanding the verdict.

The remaining question confronting this court is the proper remanding order that should now be entered: Section 68’ of the Civil Practice Act provides that either party may move for a judgment notwithstanding the verdict (Ill. Rev. Stat., ch. 110, par. 192 [Jones Ill. Stats. Ann. 104.068]). Rule 22 of the Supreme Court provides that the power of the court to enter judgment notwithstanding the verdict may be exercised in all cases where under the evidence in the case it would have been the duty of the court to direct a verdict without submitting the case to the jury. This rule was amended by the Supreme Court on November 25, 1941 (378 Ill. 11) to provide that court shall pass upon and decide the motion for new trial made by the party moving for judgment non obstante veredicto, but its ruling shall not become effective until the order granting the motion for judgment non obstante veredicto be reversed. The amendment states “Any party who fails to file a motion for new trial as herein provided, shall be deemed to have waived the right to apply for a new trial.”

In this case no motion for new trial was filed. The record shows the motion for judgment non obstante veredicto was presented to the court, and sustained on May 27, 1941, although the judgment was not entered until April 30,1942. At the time the motion was made and passed on by the court, rule 22 had not been amended which required the motion for new trial to be filed with the motion for judgment non obstante veredicto. The later motion having been granted, there was no occasion for a motion for a new trial. Applicable to the above situation, the Supreme Court said in the case of Herb v. Pitcairn, 377 Ill. 405 at page 407: “Had the trial court overruled the motion for a directed verdict, appellants had the right, under section 68 (1) of the Civil Practice Act, Ill. Eev. Stat. 1939, chap. 110, par. 192 (1) [Jones 111. Stats. Ann. 104.068]) to file a motion for a new trial and have the court pass on all questions which could properly be raised by such motion. By filing their motion for a directed verdict they did not waive their right to file a motion for a new trial, in the event the motion for a directed verdict was denied. Cockrum v. Keller, 258 Ill. 276; Quick v. Indianapolis and St. Louis Railway Co. 130 id. 344; Chicago and Northwestern Railway Co. v. Dimick, 96 id. 42. When the trial court sustained appellants’ motion for a directed verdict and entered judgment in their favor non obstante veredicto in accordance with the above provisions of the Civil Practice act, they had no occasion to make a motion for a new trial for the reason that judgment had been entered in their favor. The reversal of that judgment by the Appellate Court did not deprive appellants of the right to the judgment of the trial court upon all questions which could be properly raised by a motion for a new trial. Cockrum v. Keller, supra.” It said at page 408: “The Appellate Court having reversed the judgment of the trial court, and being without power to enter judgment on the verdict, should have remanded the cause to the trial court with directions to overrule the motion for a directed verdict and to entertain a motion for a new trial, if one should be made, and, if such motion should be overruled, to enter judgment on the verdict.”

In view of the state of this record and of the above authority, the order of this court is that the judgment non obstante veredicto entered below be reversed, and the cause is remanded to the circuit court of Pulaski county with directions to entertain a motion for a new trial; But, if such motion is not made, a judgment should be entered on the verdict for the defendant and against the plaintiff in bar of action and costs.

Reversed and remanded with directions.


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    Anna M. Klinke, Appellee, v. Great Northern Life Insurance Company, Appellant.

      Opinion filed March 2, 1943.
    Whitman, Holton & Tews, of Chicago, for appellant ; Herbert R., Tews, of Chicago, of counsel.
    Green & Hoagland, of Alton, for appellee; J. J. Middleton, of Alton, of counsel.
   Mr. Justice Bristow

delivered the opinion of the court.

Plaintiff Anna M. Klinke brought suit against the defendant, the Great Northern Life Insurance Company, a corporation, in an action at law, to recover as beneficiary the amount of insurance benefits claimed .under a written contract of accident and health insurance' issued to Lawrence A. Klinke, plaintiff's deceased husband. From a judgment for $3,370 entered by the circuit court of Madison county on May 8,1942, on" a verdict for the plaintiff, after overruling a motion by the defendant for judgment non obstante veredicto and a motion for a new trial, the defendant prosecutes this appeal. For the sake of simplicity, we will refer to the appellant as the defendant and the appellee as the plaintiff.

The complaint in this case consisted of two counts. The first alleges the issuance of an insurance contract by the Mutual Health and Accident Association of America on December 26, 1907; that under the contract the insurer promised to pay the plaintiff the sum of two thousand dollars ($2,000) for loss of life of the insured resulting directly and independently of all other causes and solely through external, violent and accidental means; that the death benefit by reason of the policy, having been continued in force for more than 11 years was increased by 50 per cent; that the defendant, the Great Northern Life Insurance Company, on June 1, 1933, assumed the insurer’s obligations under said contract; and that while the said contract was in full force and effect, insured sustained bodily injuries through accidental means by falling-six to eight feet over a banister railing of a stairway, and as a result thereof died on August 10, 1939; and that plaintiff thereafter had performed all conditions necessary to be performed to justify recovery on that section of the insurance contract.

The second count of the complaint sets forth the issuance of the same contract and claims liability of the insurer on the basis of a promise to pay to the plaintiff a funeral benefit of one hundred dollars ($100); and that defendant had refused to pay said sum except that on August 30,1939 the defendant company did issue to the plaintiff its check in the sum of one hundred dollars ($100), and later on August 29, 1940 did issue and deliver to the plaintiff another check for' fifty dollars ($50); and that both checks were delivered to the plaintiff in payment and in full discharge of all rights under said contract of insuranee; that plaintiff did receive said checks, but did not acquiesce in the conditions imposed upon her by the company, and did not cash said checks.

The defendant contends that the judgment of the court below should be reversed for the following reasons :

. First; that the evidence showed that the death of the insured resulted from disease and riot solely through external, violent, and accidental means.

Second; that the plaintiff did not institute her suit within the time limit expressed in the policy.

Third; that checks in the sum of one hundred dollars ($100) and fifty dollars ($50) were received by mail by the plaintiff; and. such constituted an accord and satisfaction of all liability.

Fourth; that the court committed reversible error in not permitting the defendant to amend the answer on the day when the trial began.

Fifth; that the court erred in improperly adiriitting ■evidence over the objection of the defendant concerning the happening of the accident in question.

It appears in the evidence that Lawrence A. Klinke, the insured, was a man almost 65 years of age, six feet tall, and weighing approximately two hundred twenty-five pounds. Throughout his lifetime, he had worked as a butcher and at other occupations involving considerable labor. During the last two years of his life, he was engaged by the mayor of the city of Alton as a license inspector. He did not own an automobile, and he did an endless amount of walking to perform the duties of this office. He went up and down stairs and never showed any evidence of exhaustion. Only once in his lifetime was he required to have the services of a doctor, and that was to treat him for a cold. His appearance of excellent health and his activity in life continued without any change right up until the night of his fatal accident.

On the night of July 31,1939, the insured’s wife was awakened from her sleep by a heavy thud occurring on the floor below. She immediately went to the foot of the stairs in the hallway and found her husband, Lawrence A. Klinke, lying parallel to the stairs, his head near the post at the foot of the stairs. Over defendant’s objection, plaintiff was allowed to tell what her husband said at that time with reference to the accident, namely; that he had tripped on the sixth or seventh step, and had tried to catch himself on the banister rail but his hand slipped off and he lost his balance and went over the rail to the floor below. As the result of this accident, the insured suffered two broken ribs and a large swollen place on his head, and complained of pain in his side. He was assisted to his bedroom by his wife and daughter that night, and taken to the doctor’s office the next morning. He returned with his left side taped above the waist line, and went to bed. From then, he grew steadily worse. On the following Monday he was taken to the hospital where he remained until Thursday, August 10, when he died.

Doctor W. W. Billings was called to testify on behalf of the plaintiff, wherein, he said he had known the insured for nine years, but that he had never treated him. He testified that he was present when an autopsy was performed on the insured’s body at the hospital immediately following his death; that this autopsy revealed that the insured was suffering from a dilatation of the heart, and that in his opinion that dilatation of the heart in this particular instance was the immediate cause of the death; that he had died a cardiac death. He further testified in answer to an hypothetiqal question that the fall herein before described might or could be the cause of the dilatation of the heart.

It further1 appeared from the evidence, both from the testimony of Dr. Billings and Dr. Hagerbusch, who was the pathologist called by Dr. Billings to perform the autopsy, that the insured was suffering from leukemia; and that leukemia is constitutionally a disease of the blood forming organs of the body; that some leukemia runs a short course of a few weeks or a few months or it may run for a number of years; that there was" a definite finding of lympho-sarcoma, it being impossible to say as to the exact duration of this disease except that it would of necessity be for a period of greater than two years; and that such disease is practically incurable. Both doctors agreed that there was no causal connection between the disease and the dilatation of the heart.

In other words the facts very plainly resolve themselves into these propositions, namely that the insured did suffer an accident that assumed violent and severe proportions. For a two hundred and twenty-five pound man to fall six to eight feet and land on a hard surface, cannot be viewed too lightly; next, that such a fall might or could cause a dilatation of the heart; and next, that this man did die a cardiac death; lastly, that the insured was suffering from a cancer which had no connection with the dilated heart.

As to whether or not recovery can be had under an accident policy, when death is claimed to have been the result of violent, external and accidental means, cases divide themselves into three categories. First, when there is a traumatic injury, and the insured dies from an idiopathic result produced thereby. A good example of this class is where trauma causes a laceration, from which blood poisoning ensues, which causes death. Second, there is that class of cases where accident causes the death of a person who might be afflicted with an incurable disease such as cancer, but which disease had no causal connection with the immediate cause of death. For instance, one may be in the throes of death with tuberculosis, yet if he is struck by a locomotive and instantly killed, one would hardly argue that he did not die an accidental death. Then, finally, there is that class of cases where one is suffering from a serious bodily infirmity and that condition is aggravated by an accident, resulting in death. For example, one may have a bad heart due to disease, and suffer an accident, which in conjunction with his heart condition causes his death, but which accident, alone and without the bad heart condition would not cause death.

The courts of Illinois uniformly hold that there can be recovery in the first two classes.

The plaintiff contends that the instant case falls within the second classification. With this contention, we agree. The only competent medical proof of the cause of death was that offered by the plaintiff in Dr. Billings’ answer to a hypothetical question. Doctor Hagerbusch was improperly permitted to give his opinion as to the cause of death over the objection of the plaintiff. This, in light of the highly controverted issue as to the cause of death — whether from the accidental injury or disease, was a distinct invasion of the province of the jury. (Davis v. East St. Louis & Suburban Ry. Co., 290 Ill. App. 540, and Fellows-Kimbrough v. Chicago City Ry. Co., 272 Ill. 71.) The question of whether insured died as a result of bodily injuries effected directly and independently of all other causes and solely through external, violent and accidental means, was one of the facts for the jury to decide. It obviously appears from what has been said heretofore that there is adequate proof in the record to support the jury’s findings that the insured did die solely from accidental means. There is no competent evidence to support any other conclusion. (Horrie v. Industrial Casualty Ins. Co. of Bloomington, 272 Ill. App. 252; Paoli v. Loyal Protection Ins. Co., 289 Ill. App. 87; Rowden v. Travelers Protective Ass’n of America, 201 Ill. App. 295.)

The appellant cites many cases in its brief in support of its contention that the plaintiff should be denied recovery under the policy in question in light of the factual situation hereinbefore outlined. All of these cases are clearly distinguishable from the case at bar. For instance, in the case of Welte v. Metropolitan Life Ins. Co., 305 Ill. App. 120, the court said, “The complaint alleges that the slipping and falling of the insured acted up oil this ulcer, causing it to rupture and bring about the necessity of an operation, which caused his death. Had there been no ulcer, there' would have been no injury, as an ulcer is not a part of the normal person’s anatomy.” The accident in the instant case caused a dilated heart, which produced death and which was not related in any manner to- the insured’s diseased condition.

The appellant also urges that this suit is barred by the limitation period of six months fixed in the policy of 1907. The plaintiff’s reply to that contention is that such- a limitation provision is void by reason of the Standard Provisions Statute adopted by the legislature of Illinois in 1915, which provided that no insurer may issue a contract of insurance providing for a shorter period for instituting a suit thereundér than two years. The defendant seeks to answer this reply with the contention that since the policy was originally issued in 1907, legislation enacted in 1915 would have no bearing upon that" provision of the policy. The plaintiff then seeks to answer this argument with this line of reasoning; namely, the defendant took over the original contract of insurance in 1933, and the terms and conditions upon which this was done were tantamount to a novation which ripened into a new contract, and, being after 1915, the two-year limitation must be made a part thereof. As a further contention, the plaintiff says that the original contract of insurance covered the deceased from December 1907 to March 1908, and provided the terms and conditions under which the insured could renew this contract. He contends that each time there was a payment on the premium, the payment amounted to the making of a new contract of insurance. Plaintiff is supported in this contention by the case of Dickinson v. Pacific Mut. Ins. Co., 319 Ill. 311.

In the Dickinson case is the identical question of whether or not a limitation period in a contract of insurance issued prior to 1915 would prevail as against the two-year period as provided in the law of 1915. The Supreme Court held that it would not prevail, and did so in the following language: “If the policy sued upon was issued in 1910, the Standard Provisions Statute cannot be held to apply, for the language of the amendment provision of the policy cannot be construed to refer to a statute that may be enacted in the future and the legislature has no power to change or vary the terms of a contract of this character. If, on the other hand, the policy expired at the end of each twelve months and was renewed by payment of the premium, then the policy was issued as of the date of the renewals, and the Standard Provisions Statute, making the period of limitation in which action is to be brought two years instead of six months, as provided in the policy, does apply.” It is true that in the Dickinson case there was a recital in the policy providing that should there be any claim in it in conflict with the State law, the policy should be considered as amended to conform thereto. We do not think that the absence of this provision from the instant policy is a basis for a distinction. Section 975 of chapter 73, 111. Eev. Stat. 1941 [Jones 111. Stats. Ann. 66.1038] supplies that element in this language, “A policy issued in violation of this article (having reference to the Standard Limitations Provisions) shall be held valid but shall be construed as provided in this article, and when any provision in such policy is in conflict with any provision of this article the rights, duties, and obligations of the insurer, the policyholder and beneficiary, shall be governed by the provisions of this article.” We, therefore, conclude that the defense urged by the defendant that this action was barred by the six months’ limitation period cannot be sustained.

Giving attention now to the third contention of the defendant as to why this cause should be reversed; namely, that two checks, the first one in the sum of one hundred dollars ($100) and the second in the .sum of fifty dollars ($50) were mailed to the plaintiff, and had written on the back thereof “Complete and unconditional release of the defendant from all liability under the insurance policy in question.” The plaintiff retained these checks, but did not cash them. However, she did say to the defendant that she was unwilling to accept them in full settlement of her claims.

In paragraph 5 of count 2 of the plaintiff’s complaint, it is alleged that under paragraph “L” of the policy, funeral benefits are payable in the amount of one hundred fifty dollars ($150). The defendant answering that paragraph admitted the funeral benefits in that amount were payable. There appeared, therefore, to be no dispute between plaintiff and the insurer in this regard. The plaintiff contends that the tendering by the defendant to the plaintiff a sum which they admit was due under the policy did not constitute a consideration for an accord and satisfaction of -any disputed liability on the claim that plaintiff makes under count 1, for benefits due her for accidental death. In support of this, they cite the case of Knights Templars & Masons Life Indemnity Co. v. Crayton, 209 Ill. 550, aff’g 110 Ill. App. 648, in which suit was brought upon an insurance policy and defended upon the theory of accord and satisfaction. There the policy provided for a payment of $5,000 together with all assessments paid by the insured upon the policy in the event of death, but that in the event that insured died as a result of self-destruction, the policy was null and void and no payments were to be made thereunder, except for the amount of the assessments paid by insured upon the policy. On the death of the insured the company repaid the assessments, but disputed any other liability upon the theory that the insured killed himself. On the back of the check for the assessments was expressly written “being payment in full of all demands under Policy No. 2174, on the life of John Crayton, deceased.” The Supreme Court, in holding that this payment did not constitute accord and satisfaction, said at page 558: ‘1 The policy in this case provides that appellant will pay to appellees, as beneficiaries, $5,000 if John Crayton dies from any other cause than suicide, and also pay all assessments that he paid under said policy. If, then, the assured did not die a suicide, as the trial and Appellate Courts have found he did not, appellant owed and should have paid to appellees, or their legal guardian, upon receipt of notice and proof of death, or within sixty days thereafter, both sums — that is, the $5,000 and the $179 paid in assessments. By its supposed settlement with the guardian it paid her one of the sums that it owed her. There was no question about that amount being due, and the payment of it could not, in any sense, be said to be a settlement of anything. It was simply payment of a sum of money due. At the time of that settlement, if John Crayton was not a suicide, $5,000 still remained due to appellees, and was not paid within sixty days from the receipt of notice and proof of death. By the payment of a portion of a whole debt, the appellant could not, by any stipulation made with the guardian, be released from its liability to pay the entire debt thus owing, and the release relied upon was ineffectual because there was no consideration for it.”

The case of Norton v. United Commercial Travelers of America, Inc., 202 Ill. App. 493, is further authority for the same proposition. We hold, therefore, that the payments made by the defendant of the funeral benefits did not constitute an accord and satisfaction of-the beneficiary’s claim for benefits under the policy for the accidental death of the insured where at the time of the payment the liability of the insurer for . such claim was in dispute. ' There are here two distinct claims, one of which is in dispute, and the other of which is undisputed, and there is a payment of' the undisputed claim, and no payment of the disputed claim or any portion thereof. It further appears that the defense of accord and satisfaction is without merit for it was never pleaded to the first count of the complaint. It was pleaded to the second count of the complaint. Section 43 of the Civil Practice Act [Jones 111. Stats. Ann. 104.043] reads as follows: “That the facts constituting any affirmative defense, such as . . . release, satisfaction, discharge . . . and any defense which by other affirmative matter seeks to avoid the legal effect of or benefit the cause of action set forth in the plaintiff’s complaint ... in whole or in part . . . must be plainly set forth in the answer or reply.”

The fourth contention of the appellant is that the trial court erred in not permitting the defendant to file an amended answer setting up an additional defense on the day this case was set for trial and was tried. The tendered amended answer presented the defense that the policy in question was automatically terminated because the insured was afflicted with an incurable disease. The pleadings in this case had apparently been settled for more than thirteen months and the facts constituting the new defense were well known to the defendant during all this time. No excuse of whatsoever character is offered by the defendant as to why it was thus delayed. An application for leave to amend an answer under such circumstances is addressed to the sound discretion of the trial court, and there being no reasonable explanation offered as to why this defense was not presented in an answer long before the calling of the case for trial, the court properly did not permit the same. (County of Winnebago v. Cannell, 376 Ill. 277, at page 282.)

Fifthly, the defendant also argues at great length that the trial court committed reversible error in permitting the plaintiff to testify as to the statements made by her husband a few seconds after she heard him fall with a thud upon the floor beneath the stairway. It is argued by the defendant that this was hearsay and not admissible as a part of the res gestae. It appears that the utterances of the decedent, namely, that he slipped and fell over the railing some seven steps above, was made within a very brief time after, the insured had fallen upon the floor, and while he was lying there suffering pain, and before he had time to fabricate or formulate any version of what had happened. Under such authorities as Morris v. Central West Casualty Co., 351 Ill. 40, and Travelers Ins. Co. v. Mosley, 8 Wall. (U. S.) 397, 19 L. Ed. 437; Zwierzycki v. Metropolitan Life Ins. Co., 316 Ill. App. 345, we are justified in holding that the foregoing testimony was clearly admissible as an exception to the hearsay rule.

We hold, therefore, that the jury was abundantly justified in reaching the verdict they did, and, finding no reversible error, the judgment entered on that verdict should be, and is affirmed.

Judgment affirmed.


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    Brauer Machine and Supply Company for use of Bituminous Casualty Corporation, Appellant, v. Parkhill Truck Company, Appellee.
    Opinion filed March 2, 1943.
    Smith, McCollum & Riggle, of Flora, for appellant.
    Harvey D. McCollum, of Louisville, and Kramer, Campbell, Costello & Wiechbrt, of East St. Louis, for appellee.
   Mr. Justice Bristow

delivered the opinion of the court.

On December 20, 1938, the Parkhill Trucking Co., an Oklahoma corporation engaged in general trucking business, transported a large steel derrick by one of its trucks driven by J. L. Caskie, from Tulsa, Oklahoma to the Brauer Machine and Supply Company, a corporation located at Clay City, Illinois. The machine shop to which this derrick was delivered is located just off State Bond Issue Road No. 12. The various employees of the trucldng company and the machine shop began unloading the derrick, whereupon one of the employees of the machine shop was injured. A claim for compensation under the Workmen’s Compensation Act was filed. Liability thereunder was established in the amount of $2,252.39. Settlement therefor was made through the machine shop’s carrier, the Bituminous Casualty Company.

A complaint was filed in the Clay county circuit court alleging that the injury suffered by the above-mentioned employee was due to the negligence of the trucking company, and that the Bituminous Casualty Company are subrogated to the right to recover the amount paid out by them. It is deemed unnecessary for the purpose of the decision to relate the various charges of negligence.

Process of summons against the nonresident corporate defendant was issued and returned not served by the sheriff of Clay county, Illinois. Thereupon, service of summons was had under the provisions of section 20a of “An Act in Relation to Motor Vehicles and to repeal a certain act therein named (approved June 20th, 1919).” The language of said act reads as follows: ‘ ‘ The use and operation by a nonresident of a motor vehicle over the highways of the State of Illinois, shall be deemed an appointment of such nonresident of the Secretary of State, to be true and lawful attorney upon whom may be served all legal process in any action or proceeding against him, growing out of such use or resulting in damage or loss to personal property, and said use or operation shall be a signification of his agreement that any such process against him which is so served, shall be of the same legal force and validity as though served upon-him personally. Service of such process shall be made by serving a copy upon the Secretary of State, or by filing such copy in his office, together with a bond conditioned on the failure of the plaintiff to prevail in the action in the sum of five hundred dollars ($500.00), with sureties to be approved by the Secretary of State, for the purpose of reimbursing the defendant for the expenses necessarily incurred by him in coming into this state to defend the action, and a fee of two dollars, and such service shall be sufficient service upon said nonresident, if notice of such service and copy of process are, within ten days thereafter, sent by registered mail by the plaintiff to the defendant, at the last known address of the defendant, and the plaintiff’s affidavit of compliance wherewith is appended to the summons.”

The defendant, limiting its appearance for the purpose of the motion only, filed its written motion, asking the trial court to quash the service of summons upon the grounds that the injuries complained of did not grow out of, or result from, the use and operation of defendant’s truck upon the public highway, but on the contrary occurred while said truck was off the highway and the defendant was engaged in the process of.unloading a derrick into the machine shop of the plaintiff. Supporting this motion is filed the affidavit of J. L. Caskie stating that he was present on the date that plaintiff’s employee was injured, and that he was the driver of the defendant’s truck; that at the time of the injuries the truck was not being-used or operated on any part of the highways of the State of Illinois.

The trial court sustained the motion of the defendant. This appeal by the plaintiff to this court resulted.

It is claimed by plaintiff-appellant on this appeal that service of process on the defendant-appellant was fully authorized and warranted under section 20a above quoted. A broad and liberal construction of this statute is urged in order that an obvious legislative intent to remedy certain evils may be accomplished. By quoting from the argument of the appellant as presented in his printed brief, we can best outline the contentions made in its behalf: “In this case the defendant-appellee is a nonresident corporation, unlicensed to do business -within this state under the Business Corporation Act, and is engaged in a general trucking business. It saw fit to accept a contract to transport from Tulsa, Oklahoma, to the place of business of plaintiff-appellant near Clay City, Illinois, a heavy steel derrick. It brought its truck to our state border, then used a public highway, continuing its objective over a public highway to a point where such highway passes the place of business of plaintiff-appellant. Then, and yet carrying out its. purpose and contractual obligation, drove its truck off of the highway and into plaintiff-appellant’s place of business, located immediately adjacent to such highway. Then, in furtherance of its intention and in carrying out its contractual obligation, its agent, in assisting and carrying out the final consummation of its object in bringing its truck within the boundaries of our state, namely, the unloading and delivering of the steel derrick to plaintiff-appellant, committed the negligent act alleged in the complaint "as the cause of the injuries sustained by plaintiff-appellant’s employee. The unloading of the steel derrick was an essential part of the project of defendant-appellee and in itself the reason for the use of our highways in transporting such derrick. If the derrick were not to be unloaded there would be no reason for the use of our highways in transporting the derrick to its point of destination. The unloading of such derrick at its place of destination was the object of its transportation and, as such, an integral part of the acts, conduct and objective of the defendant-appellee and such objective could only be attained by the final act of the driver of defendant-appellee’s truck and the act causing the injury complained of, namely, the driving of the truck from under the structure to permit - its being lowered to the foundation placed for the derrick. It was only by the unloading that the contráctual obligation of defendant-appellee could be completed and its truck released from such use to return to its point of origin or to such place as defend- ■ ant-appellee might determine in the conduct of its business, again using the public highways of the state.”

The only case in Illinois construing section 20a is that of Jones v. Pebler, 371 Ill. 309, in which the words “nonresident” were construed to apply to corporations as well as to persons. Quoting from this opinion, it is as follows: “A primary purpose of statutory construction is to ascertain the intention of the legislature. In determining this intent courts consider the language used, the evil to be remedied and the object to be attained (Burke v. Industrial Com., 368 Ill. 554; Schoellkopf v. DeVry, 366 id. 39; People v. Hughes, 357 id. 524). If the language employed admits of two constructions, one of which makes the enactment absurd, if not mischievous, while the other renders it reasonable and wholesome, the construction which leads to an absurd result should be avoided. Burke v. Industrial Com., supra; Patterson Pure Food Pie Co. v. Industrial Com., 335 Ill. 476.

“At least thirty-five states authorize the commencement of suit against nonresident motorists by substituted service on a public official of the state where the cause of action arises, the official- being made for this purpose the agent or attorney of the nonresident motorists. These statutes usually make the mere operation of a motor vehicle on the highway by a nonresident the equivalent of a formal appointment of a public officer as agent for receiving service of process (Maurice S. Culp, ‘Process in Actions against Nonresident Motorists,’ 32 Michigan L. R., p. 325). In Pawloski v. Hess, 250 Mass. 22, referring to statutory provisions corresponding to section 20a of our Motor Vehicle law, the Supreme Judicial Court of Massachusetts said: ‘The aim of the statute is to facilitate the enforcement of civil remedies by those injured in their person or property by the negligent or wanton operation of motor vehicles upon the highways of this Commonwealth. . . . The general court well may have thought that one effective means for curbing negligence or wanton misconduct in the operation of motor vehicles would be the existence of swift, inexpensive and adequate remedy for injuries flowing therefrom. When one sustaining damage within this Commonwealth from the negligence or wanton misconduct of a nonresident is compelled to seek relief in the courts of a jurisdiction where personal service of process may be made upon him, “in many instances the cost of the remedy would” largely exceed “the valúe of its fruits. . . . The result would be, to a large extent, immunity from all legal responsibility” on the part of such nonresident.’ ” It will appear that this case is not helpful in determining the question involved in the case at bar.

In the case of Hess v. Pawloski, 274 U. S. 352, which is referred to in the Jones v. Pebler case, there is an enlightening analysis of the principles underlying the necessity for and constitutionality of a provision for substituted service as provided for in the instant case. A careful reading of this case discloses the grave dangers encountered in giving such a section as 20a a too liberal construction. Quoting therefrom at page 355 as follows: “The process of a court of one state cannot run into another and summon a party there domiciled to respond to proceedings against him. Notice sent outside the state to a nonresident is unavailing to give jurisdiction in an action against him personally for money recovery. Pennoyer v. Neff, 95 U. S. 714. There must be actual service within the state of notice upon him or upon some one authorized to accept service for him. Goldey v. Morning News, 156 U. S. 518. A personal judgment rendered against a nonresident who has neither- been served with process nor appeared in the suit is without validity. McDonald v. Mabee, 243 U. S. 90. The mere transaction of business in a state by nonresident natural persons does not imply consent to be bound by the process of its courts. Flexner v. Farson, 248 U. S. 289. "The power of a state to exclude foreign corporations, although not absolute but qualified, is the ground on which such an implication is supported as to them. Pennsylvania Fire Insurance Co. v. Gold Issue Mining Co., 243 U. S. 93, 96. But a state may not withhold from nonresident individuals the right of doing business therein. The privileges and immunities clause of the Constitution, Sec. 2, Art. LY, safeguards to the citizens of one state.the right ‘to pass through, or to reside in any other state for purposes of trade, agriculture, professional pursuits, or otherwise.’ And it prohibits state legislation discriminating against citizens of other states. Corfield v. Coryell, 4 Wash. C. C. 371, 381; Ward v. Maryland, 12 Wall. 418, 430; Paul v. Virginia, 8 Wall. 168, 180.

“Motor vehicles are dangerous machines; and, even when skillfully and carefully operated, their use is attended by serious dangers to persons and property. In the public interest the state may make and enforce regulations reasonably calculated to promote care on the part of all, residents and nonresidents alike, who use its highways. The measure in question operates to require a nonresident to answer for his conduct in the state where arise causes of action alleged against him, as well as to provide for a claimant a convenient method by which he may sue to enforce his rights. Under the statute the implied consent is limited to proceedings growing out of accidents or collisions on a highway in which the nonresident may be involved. It is required that he shall actually receive and receipt for notice of the service and a copy of the process. And it contemplates such continuances as may be found necessary to give reasonable time and opportunity for defense. It makes no hostile discrimination against nonresidents hut tends to put them on the same footing as residents. Literal and precise equality in respect of this matter is not attainable; it is not required. Canadian Northern Ry. Co. v. Eggen, 252 U. S. 553, 561-562. The state’s power to regulate the use of its highways extends to their use by nonresidents as well as by residents. Hendrick v. Maryland, 235 U. S. 610, 622. And, in advance of the operation of a motor vehicle on its highway by a nonresident the state may require him to appoint one of its officials as his agent on whom process may be served in proceedings growing out of such use. Kane v. New Jersey, 242 U. S. 160, 167. That case recognizes power of the state to exclude a nonresident until the formal appointment is made. And, having the power so to exclude, the state may declare that use of the highway by the nonresident is the equivalent of the appointment of the registrar as agent on whom process may be served. Cf. Pennsylvania Fire Insurance Co. v. Gold Issue Mining Co., supra, 961; Lafayette Insurance Co. v. French, 18 How. 404, 407-408. The difference between the formal and implied appointment is not substantial so far as concerns the application of the due-process clause of the Fourteenth Amendment.”

Although it may seemingly prolong this opinion unduly to quote at length from another opinion, we deem it profitable to do so,-inasmuch as the issues involved therein are so similar to the ones in the case under consideration. In the case of Finn v. Schreiber, 35 F. Supp. 638, in the United States Court for the Western District of New York, the court said at page 639: “The defendants move for judgment under subdivision (b) of Rule 12 of the Rules of Civil Procedure, 28 U. S. C. A. following section 723c, on the ground that the court lacks jurisdiction of the persons of the defendants. The action is in negligence. Service of the summons and complaint was made upon the Secretary of State of New York, allegedly pursuant to the provisions of Section 52 of the Vehicle and Traffic Law of the State of New York, Consol. Laws N. Y. c. 71. Assuming for the purposes of this motion that the matters as alleged in the complaint are true, the facts are these. On or about April 9, 1940, the Schreiber Trucking Company, by its employee, defendant Good, was operating a truck in the Village of Webster, Monroe County, New York, and, when near the plaintiff’s Gas Service Station, one of the tires of said truck went flat. The truck was driven by defendant Good into plaintiff’s station /near the air pump tower. ’ While the spare tire was being inflated by the plaintiff, the lock rim was forced off the tire and propelled against plaintiff, causing the injuries alleged. It is the claim of. the plaintiff that the spare tire was knowingly defective and that plaintiff was directed to inflate it beyond its capacity.

“Section 52 aforesaid, so far as pertinent, provides that: ‘ The operation by a nonresident of a motor vehicle ... on a public highway in this state, or the operation on a public highway. ... of a motor vehicle . . . owned by a nonresident if so operated with his consent, . . . shall be deemed equivalent to an appointment by such nonresident of the Secretary of State to be his true and lawful attorney upon whom may be served the summons in any action against him, growing out of any accident or collision in which such nonresident may be involved while operating a motor vehicle on such a public highway . . . ’ The constitutionality of this statute is not here in question. There could be little question of such constitutionality in the light of the decision in Hess v. Pawloski, 274 U. S. 352, 47 S. Ct. 632, 71 L. Ed. 1091, which held constitutional the Massachusetts statute, Chapter 90, General Laws of Mass., as amended by Stat. 1923, Sec. 2, which statute is in material substance the same as that of section 52, supra.” And on page 640: “In Hess v. Pawloski, supra, the decision was based upon the right of the state under its police power to regulate the use of the public highways by nonresidents as well as by residents, and the distinction is made clear between such an act and one which would exclude a nonresident from doing business within the state. The court there points out that in such latter case actual service must be made upon the individual to give jurisdiction. Following this decision of the Supreme Court, it is obvious that, section 52 would be unconstitutional if it was intended to permit service on residents of other states as therein provided in actions not arising from a negligent use of the public highways. This section 52 specifically applies only to accidents or collisions where the vehicle was being operated on a public highway. Concededly the replacement of the tire was not made on 'any highway, road, street, avenue, alley.’” And on page 641: “Aside from the contention that the locale where this retiring was being done wás a public place, it is claimed that the blow-out, which occurred upon the public highway, is 'directly connected with or proximate to the accident or misadventure which caused the original flat tire on defendant’s truck. The injury is proximate to the original accident, since if it were not for that first flat tire, there would be no need of inflating the tire.’ It is claimed that it must be construed here that this accident must be considered to have ‘arisen from and grown out of defendant’s use of the public highway of the State of New York,’ by reason of these facts and that, therefore, it can be maintained. It does not seem that there can be any substance in this contention. The negligence is alleged to have been sustained by virtue of the act of defendant’s employee. It is true that the injuries would not have resulted if there had been no flat tire, but the negligent act itself was not a necessary cause of the injury. It was entirely disconnected with it in so far as the acts constituting negligence are concerned. As well it might be urged that where an individual had suffered personal injuries in a collision upon the highways and had subsequently gone into some gasoline station where, in an enfeebled condition, he sustained injuries caused by some person on such private premises but the latter injuries are necessarily connected with the former. There is nothing in the instant case to show that the flat resulted from any ‘accident or collision’ within the meaning of these words as used in section 52.” We are of the opinion that the reasoning in this case affords a complete and logical answer to all of appellant’s contentions.

Appellant insists that the Illinois Statute is broader than the above-quoted New York Statute in that it uses the words “use and operation” instead of simply the word “operation.” We do not believe that the legislature contemplated by the addition of the word “use” any different interpretation than that rendered in the State of New York. Had the legislature intended that every nonresident who used or operated a motor vehicle on the highways of Illinois could be sued in this state for any accident whether it occurred on or off the highway, they could have very easily employed terms of general liability. . This they did, not do.

We accede to appellant’s argument that if a truck were negligently operated upon the highway, and ran off the pavement onto private property and caused damage, that section 20a would be applicable. This obviously is a case that is contemplated by the statute. The object of the statute is to control and regulate use and operation of motor vehicles over the highways of Illinois, for' the safety and convenience of all persons enjoying the use of the highways. If appellants argument is tenable that the unloading of the derrick in question was a necessary part of his operations in carrying out his contract to deliver the derrick, and that this involved the “use” of the highway, we might carry the analogy one step further and say that it would be just as reasonable to say that had the truck driver needed equipment to affect such unloading and he had purchased the same, in default of payment therefor that suit' with implied consent to process would lie. We think not.

Appellant further argues that since the truck was still carrying out the purposes of its mission in unloading the derrick, that it involved the use of the highway as contemplated by the statute in question. Let us suppose that after the truck was unloaded, the one in charge was compelled to go to a bank to secure funds for his return trip, and enroute that he negligently injured someone while operating his truck in a private parking lot, he would certainly be carrying out the purposes of his general mission, but no one would contend that section 20a could be invoked to obtain service on such wrong doer.

Other errors are assigned by appellant, but in view of the conclusion reached herein, we deem it unnecessary to consider them.

The action of the circuit court in sustaining the motion to quash service of summons was correct, and therefore, the order and judgment appealed from by the appellant is affirmed.

Judgment affirmed.


author: Mr. Justice Stone

text:
    C. F. Barton, Appellant, v. Mary M. Barton, Appellee.
    Opinion filed March 2, 1943.
    Robert W. Tunnell and Henry B. Eaton, both of Edwardsville, for appellant.
    No appearance for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

C. F. Barton, appellant (hereinafter designated as plaintiff) filed suit for divorce, in the circuit court of Madison county, on June 3, 1941, against his wife, Mary M. Barton, appellee (hereinafter designated as defendant), charging her with desertion on September 10, 1937. Answer was filed by defendant, denying the allegations of the complaint, together with a counterclaim alleging that plaintiff had failed to furnish her with a home, and that he had absented himself from her for the space of one year and upward, and praying for separate maintenance.

On a trial of the cause, before the court, decree was entered finding that the plaintiff had failed to prove the allegations of his complaint and is without equity, and that the equities were with the defendant and that she was entitled to separate maintenance, and plaintiff was ordered to pay the sum of $70 a month as alimony, from which decree, this appeal is prosecuted.

The evidence showed that plaintiff was an erector and traveled all over the world erecting machinery for the company by whom he was employed, at an average wage of one hundred and fifty dollars ($150) a month, and expenses while traveling*. He was a resident of Highland, Illinois. In 1937, the company by whom he was employed proposed to send him to the jungles of Dutch Guiana, and suggested that he not take* his wife, on account of black water and malaria, which would endanger her health. She then left him, so plaintiff testified, because he would not take her with him and moved all of the furniture to the State of Minnesota, and never returned to Highland. Plaintiff continued to travel for his company and when off duty, returned to Highland. His company was instructed by him and did mail her a check for $70 every month, from 1937 until about the time of the institution of the suit. Plaintiff is corroborated, to some extent, by a filling station attendant, who testified that when Mrs. Barton had her car serviced, she stated, “she would never see Highland again.”

Defendant testified, in substance, that the separation was by agreement, that she understood plaintiff was going to South America, and it was agreed that he would give her $100 a month to live on, while in Minnesota, where she could make a home for her father.

The court permitted plaintiff to be cross-examined as to his relations with other women, over the objections of counsel, and seven exhibits were' offered by defendant and admitted in evidence by the court, which exhibits were letters from plaintiff to defendant, tending to show intimate relations with other women, all but exhibit No. 1, being dated after the separation of the parties. This evidence and the exhibits, were all incompetent, there being no charge of adultery in either defendant’s answer or her counterclaim. Evidence of adultery would have no bearing on the question of living separate and apart. Wasson v. Wasson, 236 Ill. App. 505.

Upon no theory of the law, would defendant be entitled to separate maintenance, under this evidence. A wife who voluntarily consents to a separation is not entitled to separate maintenance, since she is not without fault. Vock v. Vock, 365 Ill. 432.

In our judgment, the finding of the decree that this defendant was living separate and apart from plaintiff, without fault on her part, is manifestly against the weight of the evidence.

No brief was filed in this court by defendant, and we would be warranted in reversing and remanding said cause without consideration of merits, but an examination of the record discloses that the interests of justice Would be best served by reversing and remanding the cause, with directions to the trial court to dismiss the counterclaim of Mary M. Barton, for want of equity, and for further hearing on the complaint of C. F. Barton, for divorce.

Reversed and remanded with directions.