text:
    The Chicago, Rock Island and Pacific Railway Company et al. v. John Eininger.

      Filed at Ottawa May 15, 1885.

    1. Negligence—to whom a want of care may be imputed—as, in the case of a boy under age. Where there is no evidence of the want of capacity or discretion in a minor plaintiff suing a railway company for a personal injury from negligence, and he is present at the trial, and it appears that he was of such age and ability to care for himself as to be trusted by his parents to attend school in a large city, a considerable distance from home, and to go and return by himself, it was held error to instruct the jury that if they believed, from the evidence, that the plaintiff, at the time and place of the injury, was of such tender years, and was so immature, that the requisite capacity to exercise proper care was wanting, then the law would not impute negligence to him. While the same degree of care might not have been required of him as from a person of mature years, it can not be said that no negligence could be attributed to him.
    2. Same—duty of railway to keep a flagman at a street crossing—as to persons not crossing the railroad, but walking along the track. In a suit by a plaintiff, against a railway company, to recover for an injury received from a passing train at a public street crossing,—not in attempting to cross the track along the street, but while unlawfully walking along the track as a footway,—it was held error to instruct the jury that if the injury happened because of there being no flagman at the railroad crossing to give warning to those about to cross the street and railroad track of the approach of a train at the crossing, contrary to a city ordinance, then the plaintiff was entitled to recover.
    3. A requirement of a railway company to keep a flagman at a public street crossing in a large city, to give warning of the approach of trains, is intended for the protection of persons crossing the railroad tracks at such crossing, and not for the benefit"of persons walking along the railroad track, employing it as a foot-path. To the latter the company does not owe the duty in respect to a flagman.
    4. Same—attempting to board a train while in motion. In an action against a railway company to recover damages for a personal injury, on the ground of negligence, alleged to consist in not ringing a bell or sounding a whistle, in not having a flagman at the street crossing, and in running the train at a greater speed than six miles an hour, the company asked an instruction, based on evidence, as follows: “The jury are instructed, as a matter of law, that if, from the evidence, they believe that the injury to the plaintiff was caused hy his attempting to climb upon the train in question while the same was in motion, then he is not entitled to recover. ” The court refused to give the instruction as asked, but modified it by inserting after the word “motion,” the words, “and that he was injured in consequence of his own negligence, ” and gave it as modified: Held, that the court erred in refusing to give the instruction as asked, and' in modifying the same.
    5. Evidence—excluding part of a conversation. In a suit against a railway company to recover for an injury by a passing train at a street crossing,- the court admitted in evidence what a witness at the time said to the defendant’s flagman in giving him, as the witness said, “quite a little talking to,” and then excluded the flagman’s reply that “the boy was hitching,” it being contended that he was injured in attempting unlawfully to climb upon one of the cars while in motion: Held, that after admitting what the witness said to the flagman, it was error to exclude his reply.
    Appeal from the Appellate Court for the First District;— heard in the court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Mr. Thomas F. Withrow, and Mr. James C. Hutchins, for the appellant the Chicago, Rock Island and Pacific Railway Company, and Mr. Cyrus D. Boys, and Mr. Pliny B. Smith, for the appellant the Lake Shore and Michigan Southern Bailway Company:
    The rights of a lawful traveler and of a railroad company, at a public street, are mutual, and dependent upon each other. The traveler must exercise his right of crossing as expeditiously as possible, and in the proper manner. To such an one the railroad owes the duties imposed hy law, of bell, or whistle, or flagman, hut to no other. So a failure to observe these duties is not negligence as against any other than a lawful traveler upon the highway. It owes no such duty to one trespassing upon its property and violating the law. Blodgett v. City of Boston, 8 Allen, 327; Tigbe v. City of Lowell, 119 Mass. 472; Railroad Co. v. Backus, 55 Ill. 379; Chicago v. Starr, 42 id. 174; Railroad Co. v. Hall, 72 id. 222.
    In the case of a trespasser, the defendant is liable only for willful negligence. Railroad Co. v. Jacobs, 20 Ill. 478; Rail

      road Co. v. Godfrey, 17 id. 500; Railroad Co. v. Hetherington, 83 id. 510; Railroad Co. v. McKenna, 14 Bradw. 472.
    Age can not supply the negligence of the defendant. If the plaintiff was injured in attempting to climb upon the train while in motion, he can not recover, whether old or young, unless the company was willfully negligent. And if there is no negligence, there can be no liability, no matter how severe the injury, or whether the party injured was capable of exercising care for his safety or not. Railroad Co. v. Stumps, 53 Ill. 367.
    The declaration alleged that the plaintiff exercised ordinary care, and the .jury should have been instructed that it was his duty to have exercised such care. “Ordinary care” means the care and caution ordinarily exercised by persons of common prudence. Railroad Co. v. Miller, 25 Mich. 274; Railroad Co. v. Lee, 68 Ill. 576; Railroad Co. v. Johnson, 103 id. 512; Railroad Co. v. McKenna, 14 Bradw. 472; Railway Co. v. Wallace, 110 Ill. 114; Honeysberger v. Railroad Co. 40 N. Y. 574.
    As to what is negligence in a person attempting to cross a railroad, see Miller’s case, 76 Ill. 280; Gretzner’s case, 46 id. 86; Manly’s case, 58 id. 306; Damerell’s case, 81 id. 454; Hetherington’s case, 83 id. 515; Bell’s case, 70 id. 106; Lee’s case, 68 id. 585; Dimick’s case, 96 id. 45; Austin’s case, 91 id. 35; Sutherland's case, 2 Bradw. 313; Rudell’s case, 100 Ill. 610.
    The statements of the flagman after the injury, were improperly given in evidence. Railroad Co. v. Riddle, 60 Ill. 53; Railroad Co. v. Martin, 11 Bradw. 386; Railroad Co. v. Carrow, 73 Ill. 348; Railroad Co. v. Gougar, 55 id. 503.
    Mr. Edgar Terhune, for the appellee:
    What would be negligence on the part of an adult, would not be considered such in the plaintiff. Thurbar v. Railroad Co. 60 N. Y. 326; Dowley v. Railroad Co. 90 id. 670.

      It must- be remembered that the word “negligence” presupposes a mental capacity, and an ample opportunity to judge evil and danger, and reason from cause to effect.
    But counsel claim that the plaintiff did not exercise all of the care which could be charged to him, because the evidence does not show that he looked and listened. In every instance, in the cases cited in support of that view, the party guilty of negligence was an adult, or of mature intellect and experience, and the cases cited are so manifestly inapplicable as to render further comment unnecessary.
    The failure to keep a flagman, and to give notice of danger, as required by the ordinance, make out,.prima facie, a ease of negligence. Railroad Co. v. Payne, 59 Ill. 542.
   Mr. Justice Sheldon

delivered the opinion of the Court:

' This was an action in case, for an injury received upon what are alleged to be the tracks of the defendants, the Chicago, Bock Island and Pacific Bailway Company, and the Lake Shore and Michigan Southern Bailway Company, by an engine and train of the Chicago and Alton Bailway Company. The plaintiff recovered, the judgment was affirmed by the Appellate Court for the First District, and the present appeal taken to this court. The plaintiff sues as a minor, by his next friend.

The accident occurred at about four o’clock in the afternoon, in the city of Chicago. The train causing the injury was a freight train. The claim of the declaration is, that the plaintiff received his injury while, with all due care, he was walking along Twenty-fourth street, at a crossing of the same and the railroad track of the defendants. The defendants insist that the plaintiff was attempting, wrongfully, to climb upon the train, and slipped under one of the cars, thus receiving his injury, his leg being run over and broken. The tracks run north and south. Twenty-fourth street runs east and west. The train was running south. The undisputed evidence shows that the plaintiff went upon the private right of way of defendants at Polk street, a considerable distance north of Twenty-fourth street, and walked south from Polk street, along the track, to near Twenty-fourth street; that he lived still further south, and was walking in a southerly direction. '

The fourth instruction given for the plaintiff was:

“If the jury believe, from the evidence in this case, that the plaintiff was, at the time and place when the alleged injury is in the declaration alleged to have occurred, of such tender age, and was so immature, that the requisite capacity to exercise proper care was wanting, then the law will not impute negligence to him. ”

It was error to give this instruction. There was no evidence as to the age or capacity or discretion of the plaintiff introduced, more than that witnesses spoke of him as a little boy. He was, however, present in court at the trial. It appeared that he was of such age, and ability to care for himself, as to be intrusted by his parents to attend school in a large city, at a considerable distance from home, and to go and return by himself. He was, at the time, on his return from school. There was nothing in the case tending to show that negligence was not imputable to the plaintiff by reason of his incapacity to exercise care, and such a question should not have been submitted, by instruction, to the jury. The same degree of care might not have been required from the plaintiff as from a person of mature years, but the idea that no negligence at all could be imputable to him, was inadmissible.

The fifth instruction was to the effect that if the injury happened because of there being no flagman at the railroad crossing at Twenty-fourth street, to give warning to those about to cross the street and railroad track, of the approach of a train of cars to the crossing, contrary to the city ordinance, then the plaintiff was entitled to recover. Evidence on the part of the defendants showed that at the time plaintiff was struck, he was traveling laterally along and upon the railroad right of way, for his own convenience. Under such circumstances, plaintiff was not a lawful traveler upon the highway. To such an one the railroad company does not owe the duty in respect to a'flagman. Flagmen are for the protection of persons crossing railroad tracks, and are not for the benefit of persons walking along and upon a railroad track, employing it as a foot-path. This instruction was calculated to mislead in this respect, and should not have been given.

The defendants asked the court to give the following instruction to the jury:

“The jury are instructed, as a matter of law, that if, from the evidence, they believe that the injury to the plaintiff was caused by his attempting to climb upon the train in question while the same was in motion, then he is not entitled to recover, and your verdict should be for the defendants. ”

The court refused to do so, but modified the instruction as asked, by inserting in the line next to the last, after the word “motion, ” the words, “and that he was injured in consequence of his own negligence, ” and as thus modified, gave the instruction to the jury. The defendants were liable only for negligence. Negligence is the breach of a duty which one owes to another. The only acts of negligence charged against the defendants were, not ringing a bell or sounding a whistle, not ' having a flagman at the crossing, and running at a greater rate of speed than six miles an hour,—and there was no evidence tending to prove any other. The defendants owed no such duty as the breach of is here charged, to any trespasser attempting to climb upon their trains. There was nothing of a willful or wanton character on the part of the defendants in producing the injury pretended. The wrongful climbing upon the train was, further, in violation of the law of the State, punishable by fine or imprisonment. (Rev. Stat. 1874, chap. 114, secs. 50, 56, p. 810.) The instruction as asked was correct, and should have been given, pure and simple. (Illinois Central Railroad Co. v. Hetherington, 83 Ill. 510; Chicago and Northwestern Railroad Co. v. Scates, 90 id. 586.) There was evidence in the case which required the giving of the instruction, if it was correct. The modification of the instruction took from it all its point as an instruction, and rendered it confusing and misleading to the jury. The mischief of the modification becomes the more palpable when taken in connection with the fourth instruction for the plaintiff, which has been considered, suggesting that the jury might find that plaintiff, by reason of his immature years, could not be guilty of negligence of any kind.

We will rest with passing upon such instructions as we have, without considering others objected to; but this is not to be taken as an approval of the latter.

The court, against objection, permitted the witness Prussing to state what he said to the flagman in giving him “quite a little talking to, ” as the witness phrased it, and then the court excluded the reply the flagman" made, that “the boy was hitching. ” After admitting what the witness said to the flagman, it was error to exclude the latter’s reply.

The judgment will be reversed and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    Isaac P. Davis v. The People of the State of Illinois.

      Filed at Ottawa May 15, 1885.

    1. Cbiminal law—in cáse of homicide—proof of character of deceased as a peaceable man, and the contrary. Where a defendant on trial for the murder of his brother proved that the deceased was regarded as a “good man in a fight, ” and many other things that tended to show his character as a quick-tempered, violent and rash man, it was held, that there was no error in allowing the. prosecution, in rebuttal, to prove the character of the deceased as a peaceable man.
    2. Same—treatment of deceased by defendant. In the same case it was held that evidence of the manner in which the defendant had previously treated the deceased, being wholly immaterial, was properly excluded.
    3. Same—defining the various grades of the offence—instructions. On the trial of one for murder, where the evidence clearly showed the homicide was either murder or voluntary manslaughter, an instruction defining voluntary manslaughter need not also define involuntary manslaughter. To do so would be to call the attention of the jury to a principle of law not applicable to the facts, and would tend to confuse rather than enlighten them as to the real issue.
    4. An instruction in such case, telling the jury that they must believe, from the evidence, that the killing “was done in sudden heat of passion apparently sufficient to make the passion irresistible, ” to make it manslaughter, is not subject to the objection that it requires the defendant to show the existence of a passion absolutely irresistible, to reduce the killing to manslaughter; and it is not faulty in failing to state the law of self-defence, when that is stated in other instructions.
    5. Same—reasonable doubt. The law does not require that the jury shall believe that every fact in a criminal case has been proved beyond a reasonable doubt, before they can find the accused guilty. The reasonable doubt the jury is permitted to entertain must be as to the guilt of the accused on the whole evidence, and not as to any particular fact in the case.
    6. IrrsTBUCTioNS — degree of accuracy required. The correctness of instructions is to be tested by the evidence and facts in each particular case. They will be sufficient if they state the law with reasonable accuracy, in view of the evidence in the case. To require absolute technical accuracy in all cases, would be, under the administration of the criminal law, so difficult, as to make it almost impracticable to secure a conviction.

      7. Same—assuming a fact not disputed. Even if an instruction given on the trial of one for murder should assume the fact that the killing was shown by the evidence, where the fact of the killing is not a disputed fact, but is conceded, that would afford no ground of error.
    Writ of Error to the Circuit Court of Warren county; the Hon. Arthur A. Smith, Judge, presiding.
    Messrs. McKenzie & Calkins, and Messrs. Grier & Dryden, for the plaintiff in error.
    Mr. George Hunt, Attorney General, for the People.
    Mr. John W. Matthews, State’s Attorney, also for the People.
   Mr. Justice Scott

delivered the opinion of the Court:

At the January term, 1884, of the Warren county circuit court, an indictment was presented, in open court, by the grand jury, charging Isaac P. Davis with the murder of James K. Davis. In the first count of the indictment it is charged the murder was committed with a “single-tree,” in the second that it was done with a “false standard of a wagon, ” and in the third that it was done with a deadly weapon to the grand jury unknown. At a trial of the cause had at the September term, 1884, defendant was found guilty of manslaughter, in manner and form as charged in the indictment, and the jury, by the verdict, fixed the term of punishment defendant should suffer, at five years in the penitentiary. The motion made by defendant for a new trial was overruled, and the court pronounced judgment on the verdict. To reverse the judgment against him, defendant brings the case to this court, on error.

Much stress is laid on the point made the verdict is not warranted by the evidence, and therefore it was error in the court to overrule the motion made for a new trial. The earnestness with which this point in the case is pressed on the attention of the court, has induced a most careful examination of all the evidence contained in the record. It is seen that much of it is irrelevant, and illustrates no phase of the case. The killing took place in the field, where defendant and his hired hand and two little sons were gathering corn. These were all the persons that witnessed the affray. ■ Only a brief period elapsed from the time deceased came into the field until he was struck down with a single blow, that proved mortal. It would seem the details of the sad controversy between defendant and the deceased might be briefly told by the few persons present, and yet this record contains many hundred pages of testimony, closely written. Really what occurred in the field where the mortal combat took place was briefly told, for the facts were necessarily few, and could be readily stated, as was done by the witnesses. This immense volume of testimony consists mostly of contradictory statements of many of the witnesses, and of the details of matters occurring elsewhere. Voluminous as the record is, it has been patiently examined, with a view to see whether the verdict is warranted by the whole evidence, and the conclusion reached from such examination is, the verdict is fully sustained.

It would answer no good purpose to enter upon any close analysis of the entire testimony. Only those facts occurring in the field are important to be considered. It is proved deceased entered that field alone, and was carried home in an insensible state, from which he never recovered. No one in his interest was present to give his version of what' took place. The history of what occurred comes alone from defendant, his two little sons, and the hired-man. Counsel concede, as the truth is, there is a conflict in the evidence, not only as to which of the brothers began the affray, but also as to its cessation and renewal. No two of the witnesses state what occurred, precisely alike. This is not a matter that militates against the truthfulness of their respective statements. The events occurred rapidly, and were of the most exciting character. It is no wonder the persons that witnessed the affray may not have been able to describe all that took"place, exactly alike. It would have been singular if they had done so. As to the principal fact that defendant struck the fatal blow that caused the death of deceased, there is no controversy. It is an admitted fact. But with what instrument,—whether a false standard from the wagon, or a single-tree,—deceased was struck, or whether deceased was pursuing defendant, or defendant was pursuing deceased, at the time the blow was struck, are all matters about which the evidence is conflicting. Controversy as to what instrument was used to inflict the wound arose at the inquest that was held over the body of the dead man. The manner in which the witness McManus (defendant’s hired-man,) was examined, shows that in some way it had already become understood, or was suspected, the blow was given with a single-tree. This is evident from the fact the witness was examined concerning that matter, and he denied he had told any one defendant took the single-tree off the wagon, or that he told him to do it. How did it become so soon suspected the single-tree was used by defendant ? Some one must have told or suggested it. Witnesses say defendant himself told it the night on which his brother’s death occurred, but this defendant denies. It is clear the controversy as to the weapon used did arise at the time or before the inquest was held, and it is a most significant fact neither defendant nor McManus stated at the inquest what instrument was in fact used, nor did either of them say the singletree was not used. Both defendant and McManus stated more in detail what occurred in the field, in their examination at the trial, than at the inquest, or else their testimony is more fully reported on the latter occasion. An effort was made to break the force of the testimony of McManus, as given on the trial, by a most severe cross-examination, and by proving many contradictory statements made by him out of court concerning the case and as to what his testimony would be. It must be admitted the witness McManus made many conflicting statements concerning the facts of the ease, some, of them in regard to material matters, and others as to matters wholly immaterial. Some denunciation of this witness is indulged by counsel, and yet not one of his neighbors, in the midst of whom he lives, is found to say his character for truth and veracity is bad. That his testimony on the trial and at the inquest is different concerning some material facts, may be admitted; and yet, when his statements as to what did actually occur in the field are subjected to a close scrutiny, it will be seen there is very little that is variant. As reported, his first examination was very meagre, and it may be he omitted to state many things at the inquest that he afterwards stated on the trial. It is this omission to state all that occurred that makes his testimony seem to be so very different on his last examination. On the trial the testimony given by McManus at the coroner’s inquest was introduced in evidence by defendant himself, so the jury had an opportunity to see wherein it was variant, as to all material facts, from that given on the trial. The witness confesses, without reserve, his statements at the inquest were not all the-truth,— that he suppressed much that was material. At the time, he wras in the employ of defendant, and was induced, as he says, by the earnest entreaties of defendant and his family, to suppress many material facts before the coroner’s inquest, as he did. The reason assigned for his action in that respect is not without something in its support that palliates it, but of course not enough to justify it. It was an hour of intense excitement to all concerned, and defendant and his family were overcome by the distress that had come upon them. It is by no means unnatural the witness should feel inclined to favor defendant so far as he could, and in that way relieve defendant from the shock of a great sorrow that had so recently and so suddenly come upon him.

It will be seen that on the trial the witness McManus assumed to state all that occurred between the brothers in the field. According to his testimony, deceased had ceased the quarrel with defendant, and was standing still on ground he claimed to have in his rightful possession; that he warned defendant not to strike him; that he told him he was unarmed, and that while standing in that position defendant deliberately struck him a blow with a single-tree, that shortly produced death. This account of the manner of the killing was not given by the witness at the inquest, and for that reason it is said he is unworthy of belief. The force of the argument on this branch of the case may be admitted in a measure, but not to the extent insisted upon. It is quite certain the jury did not give full credence to the details of facts occurring in that fatal field as given by McManus on the trial, or else it is hardly probable this verdict would ever have been for manslaughter. As the facts are stated by McManus on the trial, the killing was deliberate, willful murder. But the jury no doubt took another view of the case,—that the killing was done in the midst of a heated quarrel between the brothers, and the crime was therefore manslaughter. This, indeed, is a most favorable view for defendant. Considering the testimony of McManus, both before the coroner and at the trial, and that given-by defendant himself at the inquest, in connection with the facts and circumstances proven about which there is and can be no controversy, this verdict is not only warranted, but one imposing a much severer punishment might be sustained. It appears that when deceased came into the field a heated controversy at once arose between the brothers concerning the corn. Angry words passed, and according to the testimony of McManus before the coroner, the first overt act of violence was committed by defendant. It is said defendant pulled a false standard out of the wagon and raised it over the head of deceased, and told him to go home, and then deceased took after the accused, and run him around the wagon. The witness was not positive that deceased had a knife in his hand,:—saw something he thought was a knife, hut was not positive it was not a husking-peg. The witness further says: . “They seemed to be dodging around wagons,—each dodging from the other. . Isaac was in front when they started. Do not know which was in front when they left the wagons. ” Again he says: “The fight lasted not more than ten minutes, and- they ran after each other, trying to strike each other. Saw James (deceased) try to get the wrench out of the wagon, but he did not get it out entirely, as he dodged from there, and seemed in a hurry. ” Witness thought the deceased was to blame for starting the trouble, but admits he told Mrs. Davis “one was as much to blame as the other, as they were both in a passion. ” In his examination before the coroner, McManus .does not state whether he saw the. blow struck or not. The parties were some distance from the wagons, and when he was called he went to them, and found deceased on the ground, unable to speak. The testimony of defendant taken by the coroner was introduced in evidence by the prosecution. As it was given so soon after the occurrence, and when every fact must have been vividly present to his mind, it can certainly be relied on as not unfavorable, at least, to defendant. It was given at an hour and in a presence when no man could well dissemble. Even his own account of what transpired, standing alone, if there were no-other evidence in the case, does not excuse -his conduct, when considered in connection with facts and circumstances proven past all doubt. It is here defendant testifies he ran around the wagons “as much as twice, and then turned and ran down the corn—down the row—and he (deceased) after me, for about fifty yards; then I stopped, turned around, and struck him with something,— don’t know what. He was advancing toward me when I struck him, and he fell.” And then it is added: “Can’t say I saw the knife, when I turned on him. Have not seen it since. Have not been there since. Had club, or whatever it was, in my right hand. Know I grabbed for false stake in wagon, but don’t know whether I got it or not. ” It is evident the account given by McManus.and defendant, at the inquest, does not contain all that transpired on that fatal field. Something more occurred than what either of them disclosed on their first examinations. Whether all that McManus related on the final trial took place, it is obvious the history of the affray was imperfectly givén at the inquest, or else what the witnesses stated is not preserved .in the record. So far as they undertook to state the facts, both witnesses may have been candid, and yet they may have omitted much that was material. Neither witness ventured to state with what instrument the blow was inflicted. This is a most singular omission. -Their testimony was taken in. less than twenty-four hours after the affray, and it seems incredible the witnesses did not know what weapon was used.. One or the other, or both, of these witnesses must have known. But a statement of defendant that challenges belief is, that he did not know with what instrument he struck the blow that killed his own brother. He knew and admitted he “grabbed for the false stake” in the wagon, but adds, “don’t know whether I got it or not. ’’ This exact statement was repeated on the trial, and when asked, “What did you strike him-with ?” he answered, “I will never tell you.” The reason.assigned why he did not tell was, because, he said, he did not know. The witness McManus, on the trial, said the fatal blow was given with a “single-tree. ” The only denial defendant makes of this statement of McManus is, that he “don’t know.” It may have seemed incredible to the jury a man who had just slain his brother could not, or would not, tell how and with what it was done, and for that reason they may have concluded it was done, as McManus said it was, with a “single-tree.” If so, it was one of the strong criminating circumstances in the case.

But there is another criminating fact, the force of which can not he avoided, that depends for its existence neither upon the testimony of defendant nor McManus, and concerning which all the evidence concurs. It is, that deceased was killed with a single blow, and that was on the back of the head, and whether the wound was inflicted with a “false stake” or a “single-tree, ” matters little. • The theory of the defence insisted upon by the evidence of defendant, and in the argument of counsel, is, that defendant was so hotly pursued by deceased through the corn, from the wagons, where the affray began, that danger to life, or great bodily harm, became imminent, and he “turned and struck” him. Is this theory consistent with the fact deceased was struck but a single blow, and that on the back part of the head ? No wounds appeared elsewhere on his person. Had it been true deceased was pursuing defendant, and was so close upon him as to place his life or limb in imminent peril, is it probable, or even possible, he could have turned and struck deceased on the back of the head, if he was advancing upon him as defendant says he was ? As before stated, defendant says he held the instrument, whatever it was, with which the blow was struck, in his right hand, and McManus, in his testimony on the trial, says defendant passed around deceased to the left,—and that would enable him to give the blow precisely as all the surgeons located the wound that was inflicted. Indeed, it seems improbable it could have been inflicted otherwise. If it shall be assumed, according to the theory of the defence, that deceased was pursuing defendant, and was pressing hard upon Tiim when he “turned and struck, ” in all probability the blow would have fallen on the front or side rather than on the back of the head. The instinct of self-preservation, in the immediate presence of imminent peril, would have caused deceased to throw up his arms, and in that way much of the force of the blow would in all probability have been received upon his arms, or at least upon the front part of the head. All the reasonable probabilities support the testimony of McManus that defendant passed around to the left of deceased, and from that position it was practicable to inflict the blow, as was done, on the back of the head. Any other theory seems inconsistent with the location of the mortal wound. Assuming, then, as may be done consistently with the weight of the evidence, that defendant passed around to the left of deceased, and struck him with an instrument which he held in his right hand, the guilt of defendant is established beyond all cavil. It rebuts the idea deceased was pursuing defendant, and was pressing so close upon him as to place his life or limbs in imminent peril, when he turned and struck, and that being so, the conviction was warranted both by the law and the facts.

Coming now to consider other questions made on the record, the first point made is, the court erred in admitting evidence for the People, and refusing to permit proper evidence to go to the jury, for defendant. It seems defendant had proved deceased was regarded as a “good man in a fight, ” and many other things that tended to show his character as a quick-tempered, violent and rash man. After such evidence had been admitted, the prosecution was permitted to prove the character of deceased as a peaceable man, and this is the evidence that is complained of as being incompetent and hurtful. What defendant proved concerning deceased was equivalent to proving his general character as a violent and fighting man, and there was certainly no serious error, if there was any at all, in permitting the prosecution to rebut such evidence of character by proving, as was done, his general character as a quiet and peaceable man. Indeed, it is not perceived how else it could be so well disproved. At all events there was nothing in the evidence that could prejudice the defence defendant was endeavoring to make, and there is no just ground for complaint on that score.

There was clearly no error in the ruling of the court in excluding evidence of the manner in which defendant had treated deceased. It was wholly immaterial whether defendant’s conduct in the respect indicated afforded deceased any reasonable ground for complaint or not, and the court was clearly right in not permitting that matter to be investigated.

Another ground of reversal insisted upon is, the court improperly instructed the jury, on behalf of the People, and particular attention is called to instructions numbered, respectively, 4J, 5, 7, 9 and 11, as manifestly misleading, erroneous, and prejudicial to defendant. On this branch of the case it might be sufficient to say the several instructions have been carefully considered, and it is not perceived they contain anything prejudicial to the defence sought to be made. It might be some of them, as now framed, would not be regarded as stating the law as fully and accurately as should be done if given in another case where the evidence was widely variant from what it is in the case being considered. In view of the evidence contained in this record, the instructions state the law applicable to the facts with sufficient accuracy, and that is all defendant has any right to insist upon. Many of the objections taken to the instructions are hypercritical, and if sustained in this and other cases, it would render the administration of the criminal law so difficult as to make it almost impracticable to secure a conviction of the wrongdoer, however clearly he may be proved to be guilty. Such strictness the law will not tolerate.

It is said instructions 4|- and 5 do not fully inform the jury as to the law of manslaughter. One of these instructions contains a definition of manslaughter, voluntary and involuntary, in the precise language of section 43 of the Criminal-Code, and although some objections are taken, it is apparent “voluntary manslaughter” is defined with sufficient accuracy. But the objection most strongly urged is, that neither by instruction 4-¡- nor instruction 5 did the court make even any attempt to inform the jury as to what constitutes “involuntary manslaughter. ” It was not necessary to define the latter crime. The case made by the evidence was either murder or voluntary manslaughter. It contained not a single element, other than the killing itself, of involuntary manslaughter, and had the court specifically defined involuntary manslaughter, it would have answered no good purpose. It would have directed the attention of the jury to a principle of law not applicable to the facts of the case, and the result would have been to confuse rather than to enlighten them on the issue they were to try. It is said, also, the fifth instruction requires defendant to show the existence of a passion absolutely irresistible, to reduce the killing from murder to manslaughter. It requires no such thing. It simply tells the jury they must believe the killing “was done in sudden heat of passion, apparently sufficient to make the passion irresistible, ” and nothing more, and in this there was no error. The law of self-defence was embodied in other instructions given,' and there was no necessity for embracing it in the fifth charge, as it is insisted should have been done.

It is said the seventh charge is erroneous, for the reason it assumes the fact the killing was shown' by the evidence. If it were conceded the criticism was just, it could do defendant no possible harm, for the fact of the killiiag is not a disputed fact in the case, and never was. Defendant himself testified he struck deceased a blow that felled him to the ground. He was taken up in an insensible condition, and died before the next morning. It is preposterous to even argue the wound inflicted by defendant did not cause the death of the deceased. That is a fact not in' dispute by any one, and if it had been, it was proved past all doubt. Nor is this instruction liable to the further criticism made upon it, that it conveys to the minds of the jury the idea defendant could not sustain his plea of justification unless the danger was not only apparently imminent, but was actual and positive. Fairly construed, it asserts no such principle.

The objections taken to the ninth instruction are too subtle to find any support, either in reason or in law. Whatever warrant there may be for any criticism upon this instruction, it is obvious it contains nothing hurtful to the defence.

Lastly, it is said the eleventh instruction given for the People was calculated to mislead, in that it gave the jury the privilege of deciding that any element in the case, the most material as well as the most trivial, has been established by proof less in quantity than the law requires. The objection taken is broader than is warranted by any fair reading of the instruction; but' 'if'it is intended tó say the jury should be required to believe every fact in the case had been proved, beyond a reasonable doubt, before they could find the accused guilty, such is not the law. In Mullins v. The People, 110 Ill. 43, this court said: “The reasonable doubt the jury is permitted to entertain must be as to the guilt of the accused, on' the whole evidence, and not as to any particular fact in the case.” The doctrine of the case cited has been restated and approved in the recent case of Leigh v. The People, 113 Ill. 373. The principle of these cases is conclusive of the same point in the case being considered.

The court refused certain instructions asked by defendant, but in doing so there-was no error. All they contained that was proper to go to the jury had been given in other instructions, and it was not error to refuse to give the same thing a second time.

Every argument and suggestion of counsel in behalf of defendant has been thoughtfully and patiently considered, and no tenable ground is perceived on which a reversal of the judgment could be based. It is said defendant is guiltless of any criminal intent. How that is, could only be ascertained from what he did, as shown by the evidence, and that leaves no doubt upon the mind, of his guilty conduct. The widest latitude was permitted to the defence, on thé trial, to introduce any and everything that w'ould tend in the slightest degree to extenuate the conduct of defendant. The principal witness for the prosecution was subjected to an unreasonably extended cross-examination, and every fact and circumstance that would tend in the remotest degree to impair the force of his testimony was permitted to go in evidence, and yet a jury coming from the vicinage'hdve found'defendant guilty; and this court, after the fullest examination, can not say the verdict is not warranted by the evidence. It is possible, and i.t may be true, some trivial errors have intervened at the trial. That may reasonably be expected in every protracted trial. When no error has intervened that affects the merits of the case in any substantial degree, the judgment will not and ought not .to be reversed. Defendant has had a full and fair trial, and that is all he has any right to demand. If he. is now to suffer punishment, it is on account of his own wrongful conduct, from the-effect of which he can not expect to escape.

The judgment will be affirmed.

Judgment affirmed,.


author: Mr. Justice Mulkey

text:
    The Sun Mutual Insurance Company v. The Saginaw Barrel Company.

      Filed at Ottawa May 15, 1885.

    1. Insurance — payment of premium to insurance broker—question of agency, and of evidence in respect thereto. A party desiring to insure certain property, applied to an insurance agent of his place to procure the insurance, leaving him to select the company. He forwarded the application to certain insurance brokers in Chicago, who procured the policy in a company with which they had considerable dealing, and sent the same to the assured through the first named agents, and he sent the premium to the agents in Chicago, who never forwarded the same to the insurance company. The policy contained the usual clause that it should not be binding until the actual payment of the premium. A loss occurred, and payment was refused, when suit was brought on the policy, and a • recovery had: Held, that the liability of the insurance company depended upon the fact whether the Chicago agents were its agents, or were authorized to receive payment in its behalf.
    2. Where insurance brokers procuring a policy of insurance received payment of the required premium, and failed to return the same to the insurance company, it was held, that the correspondence between the brokers and the company was proper evidence for the purpose of showing their previous relations and methods of business in respect to insurance effected through them, and as tending to show they were, in fact, agents of the company, and as such authorized to receive payment of the premium.
    3. Appeal—reviewing questions of fact. This court, in reviewing ordinary cases tit law coming to it through the Appellate Court, sits simply to correct errors of law committed in the lower court. If the trial court makes no improper ruling, and the judgment is affirmed in the Appellate Court upon mere issues of fact, this court will not reverse on the ground that the issues were improperly decided. And this is.equally so although there may be no conflict in the testimony on which the issues are found.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. W. H. Barnum, Judge, presiding.
    Messrs. Schuyler & Kremer, for the appellant:
    If the brokers in Chicago were agents of the insurance company, and the premium was paid to them, the company was liable, even if it never got the money from its agents. But if Beardsley & Circle were not defendant’s agents, but mere street brokers,, no recovery can be had. Fire Ins. Co. v. Swigert, 11 Bradw. 599; Insurance Co. v. Ward, 90 Ill. 548; Insurance Co. v. Weary, 4 Bradw. 78; Insurance Co. v. Rubin, 79 Ill. 402; Whiting v. Insurance Co. 129 Mass. 240.
    The correspondence of Beardsley & Circle with appellant, in respect to their prior dealings, was not admissible in evidence. Lund v. Tyngbourough, 9 Cush. 36.
    Messrs. Paddock & Aldis, for the appellee,
    reviewed appellant’s authorities, and discussed the propositions of law, generally.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Thé Saginaw Barrel Company, a manufacturing corporation of Saginaw, Michigan, being desirous of procuring $2000 additional insurance on its factory buildings and machinery, on the 19th of August, 1882, applied to Gaylord & Fowler, insurance agents of that place, and directed them to procure the amount of insurance mentioned, from some good and responsible company, leaving the selection of the company entirely to them. Gaylord & Fowler thereupon wrote to Beardsley & Circle, insurance brokers doing business at Chicago, requesting them to obtain the required insurance. On the 25th of August, 1882, Beardsley & Circle, the Chicago brokers, sent the application for the insurance in question to the Sun Mutual Insurance Company of New Orleans, with which they already had a business acquaintance and were then doing considerable business. The amount of premium not being deemed sufficient, the application was returned, with a statement to that effect. This being satisfactorily arranged, the insurance company, on the 2d of September following, issued to the barrel company a policy of insurance on its factory building and machinery, for the amount above mentioned. The policy, instead of being sent directly to the barrel company, at Saginaw, was forwarded to Beardsley & Circle, at Chicago, according to the usual course of business between them and the insurance company. They transmitted the policy to the barrel company through Gaylord & Fowler, and the premium was paid by the assured, through them, to Beardsley & Circle, at Chicago, but it was never paid by Beardsley & Circle to the insurance company. After the insurance had been thus effected, the assured, through Gay-lord & Fowler, sent the policy to the insurance company, with the request to indorse thereon, “loss, if any, payable to A. W. Weaver and A. A. Brockway, as their interests may appear, ” which was done, and the policy returned, but nothing was said about the premium not having been paid. On the 8th of December the property insured was destroyed by fire, after which some correspondence took place between the insurance company and Circle in respect to the premium, but no complaint was ever made to the assured, prior to the loss, that the premium had not been paid. The insurance company having declined to pay the loss on the sole ground that the premium had not been paid, the present action was brought by the assured, in the circuit court of Cook county, to recover the same. By agreement of parties, the cause was tried by the court, without a jury, resulting in a finding and judgment for the plaintiff for $1750.55, which was affirmed by the Appellate Court for the First District, and the defendant has appealed to this court.

The policy in question contains the usual provision that it is not to be binding until the actual payment of the premium. It follows, therefore, that if the payment by the assured to Beardsley & Circle was not, in law, a payment to appellant, the judgment of the circuit court is erroneous, and the Appellate court erred in not-reversing it. Whether it was such a payment or not, of course depends upon the further question whether Beardsley & Circle, in view of their previous course of dealing with the insurance company, and in the light of all the circumstances disclosed by the testimony, are to be regarded as its agents in accepting and receiving the premium, which is conceded to have been paid to them, for the company,—or, more shortly put, whether, as a matter of fact, they were authorized by the appellant to receive the premium in question. This was a question of fact for the court sitting as a jury, and whether properly or improperly decided, is not a matter for the consideration of this court. If an error in this respect was committed, as is claimed there was, its correction was committed by law to the Appellate Court, and not to this, and the decision of that court is consequently final. Nor can it avail appellant anything even if it be conceded there is no conflict in the testimony, as has often been decided by this court. This may well be, and yet1 the controverted facts to which the evidence relates may have been, very difficult of solution. This is often the case. Some of the evidence, for instance, may tend to prove a particular, hypothesis, while!other portions may tend to prove just the contrary. When this is the case, it is for the jury, or court sitting as a jury, to weigh the evidence, reconcile it, if it can be done, and endeavor to draw from it, as an inference of fact, the true conclusion. We must assume that has, been done in this case. This court, in reviewing cases at law coming before it through the Appellate Court, sits simply to correct errors of law committed by the lower courts. If the trial court makes no improper ruling, and the ease is affirmed upon mere issues of fact, this court will not reverse on the ground those issues were improperly decided.

The only question of law presented by this record arises on an exception taken to introducing in evidence the correspondence between appellant and Beardsley & Circle, for the purpose of showing their previous relations and methods of business in respect to insurance effected through their instrumentality. We think the evidence was proper for the purpose offered.

The court was not asked to hold any propositions of law as applicable to the case, or to otherwise make any ruling complained of, besides that just mentioned.

Perceiving no error in the record, the judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Lewis L. Coburn v. Almira Herrington.

      Filed at Ottawa May 15, 1885.

    1. Acknowledgment of deed—requisites—to release dower—under act of 1853. Under the act of 1853, relating to conveyances, the1 certificate of the acknowledgment must show that the wife of the grantor joining with him in a deed was personally known to the officer taking the acknowledgr ment, or proven by a credible witness, in order to release or bar her dower.
    2. Dower—effect of subsequent deed for other property. Where the certificate of the acknowledgment of a deed made by a husband and wife, of a tract of land, is invalid as to the wife, so that the deed fails to release her dower in the premises, a subsequent deed made by her to the same grantee, for other real estate, is not admissible in evidence against her in a suit by her for the assignment of her, dower in the first named tract.
    3. Same—as to land held in severalty—against whom the dowress may proceed. Where land in which a widow is entitled to dower, has been divided, by partition, between several different parties, she may properly bring a separate suit against the owner of each portion. She may, perhaps, proceed against all in bne suit, but she is not compelled to do so.
    Appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Mr. Lewis L. Coburn, pro se, contended that the certificate of the acknowledgment of the deed of Nathan P. Herrington, and Almira, his wife, was substantially good under the law of 1853, which declared that no deed, etc., should be held invalid, defective or insufficient by reason of any informality or omission in setting forth the particulars of the acknowledgment,—citing and reviewing the following cases: Lindley v. Smith, 46 Ill. 523; Gove v. Cather, 23 id. 634; Heinrich v. Simpson, 66 id. 57; Tully v. Davis, 30 id. 103.
    Also, that the tract of land was owned by several parties in severalty, and that all the owners should be made parties.

      Messrs. French & Halsey, and Mr. D. B. Sherwood; for the appellee:
    As to the sufficiency of an acknowledgment in the form of the one under discussion, we have only to refer to Brown v. Thompson, 46 Ill. 214, Lindley v. Smith, id. 523, Tally v. Davis, 30 id. 103, Heinrich v. Simpson, 66 id. 57, Ridgway v. Underwood, 67 id. 419, Murphy v. Williamson, 85 id. 149, and Hogan v. Hogan, 89 id. 431.
    Proceedings for dower may be against the owner of each separate tract of several; or the dowress may proceed against all jointly. Allen v. McCoy, 8 Ohio, 418; Barney v. Frowner, 9 Ala. 901; Boyden v. Lancaster, 2 P. & H. 198 ; Potter v. Wilson, 13 Mass. 504; Blossom v. Blossom, 9 Allen, 254.
    The deed to Moore did not embrace this land.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill brought by Almira Herrington, against appellant, for the assignment of dower in certain premises in Chicago. The case was before us at a' former term, and is reported in 108 Ill. 613. When the case was here before, the main question in dispute was as to the effect of a decree of partition upon appellee’s claim for dower, neither appellee nor her husband having been a party to the decree. We then held that appellee was not concluded by the decree of partition, and the decree dismissing the bill was reversed, and the cause remanded for another hearing. On the second hearing a decree was rendered in appellee’s favor, and Coburn, the defendant in the bill, appealed. ,

The appellee claimed dower in the premises as widow of Nathan P. Herrington, deceased, who during his lifetime was seized in fee of the premises, and conveyed the property to Luther Dearborn,' on May 31, 1857. Appellee joined in the deed, and her claim for dower rests upon a defect in the acknowledgment of the deed. The certificate of acknowledgment is as follows: ... . .

“State of Illinois, ") Whiteside County. ) SS"
“I, John M. Brown, a justice of the peace in and for said county, in the State aforesaid, do hereby certify that Nathan P. Herrington, personally known to me as the same person whose name is subscribed to the foregoing instrument of writing, appeared before me this day, in person, and acknowledged that he signed, sealed and delivered the said instrument of writing as his free and voluntary act, for the uses and .purposes therein set forth. And the said Almira Herrington, wife of the said -Nathan .P. .Herrington, having ,been by me examined, separate and apart and out of the hearing of her husband, and the contents and meaning of the said instrument of writing having been by me made' known to her, acknowledged that she had freely and voluntarily executed the same, and relinquished her dower to the lands and tenements therein mentioned without compulsion of her said husband, and that she does not wish to retract the same.
“Given under my hand and seal, this 18th day of April, A. D. 1857. ...... John M. Brown, J. P. [Seal.] ”

The act of 1853, regulating conveyances in this State, (Laws of 1853, p. 89,)-was in force at the time the deed in question was acknowledged. This act provides that no officer shall take, the acknowledgment of any person to any deed unless the grantor shall be personally known to the officer, or shall be proved by a credible witness; and the officer shall state in his certificate that such person was personally known, etc. It also provides that a married woman may release her dower in lands by joining with her husband in a deed of conveyance, and appearing before an officer and acknowledging such deed; and if such woman shall not be personally known to the officer to be the person who executed the deed, he shall ascertain the fact by the testimony of- a competent witness; and if the woman acknowledges, on an examination separate and apart from her husband, that she executed the deed and relinquished her dower, the officer shall annex a certificate to the debd, stating that such woman was personally known to him or was proven to be the person who subscribed the deed, etc. This act clearly and explicitly requires the certificate of the officer to show that the wife was personally known or proven by a credible witness, in order to release the dower, and as the certificate of acknowledgment does not comply with the statute in this regard, it was not sufficient to bar her dower in .the premises conveyed. This question has been decided by this court in a number of eases, in some of which dower, only, w'as involved,, while in others the question was whether the fee of a married woman would pass where the certificate of acknowledgment was defective. Lyon v. Kain, 36 Ill. 363; Lindley v. Smith, 46 id. 524; Heinrich v. Simpson, 66 id. 57.

After the partition proceedings, Almira Herrington made Luther Dearborn a quitclaim deed of the lots which had been assigned to him. This deed appellant offered in evidence, but the court excluded it, and the decision is claimed to be erroneous. If the deed, had embraced any of the property involved in this case, then it would have been proper evidence; but as it did not, the deed could have no bearing whatever on the- rights of the parties. The fact that appellee released her title and interest in certain lots owned by Dearborn, could not in any way affect the property in litigation between her and appellant.

It is also contended that others who own. a part of the same tract of land, are necessary parties to the proceeding. Where a widow has dower in a tract of land wdiich has been divided between several different parties, she may properly bring a separate action against each owner. (Allen v. McCoy, 8 Ohio, 418.) Perhaps she might, if she saw proper, bring an action against • all, but -she was under no. obligation to do so.

It is also said that under the evidence of Almira Herrington it does not appear that her husband had an interest in the premises after the deed he and his wife made-to Alexander B. Moore. It does not definitely appear from the evidence what property was conveyed to Moore,—or, at - least, there is an entire want of evidence to show that Almira joined in a deed conveying the property involved in this action, to' any .person.

Some.other questions have been raised, but they were.disposed of when .the case was before us at a former term, and it will not be necessary .to go over them again. -• ,

The' decree of the. circuit court will be affirmed.

Decree affirmed.


author: Mr. Justice Sheldon

text:
    The Covenant Mutual Benefit Association of Illinois v. Edward J. Sears et al.

      Filed at Ottawa May 15, 1885.

    1. Insurance — mutual benefit association—contract construed as to payee or beneficiary. A mutual benefit association, the charter and by-laws of which declared its object and business should be to afford financial aid and assistance to the widow, orphans, heirs or devisees of .deceased members, issued .a certificate of membership to a member, which provided that upon proof of his death, he having complied with its conditions, an assessment should be levied upon the surviving members to the amount of the certificate, ($5000,) which “sum so collected on such assessments (less expenses and collection costs) the association hereby agrees well and truly to pay, or cause to be paid, as a benefit to his devisees, as provided in last will and testament; or in the event of their prior death, to the legal heir or devisees of the certificate-holder:” Held, that the promise was, in substance, to pay to his devisees if there should be devisees to take, and if not, then to pay to his heirs, and that they might recover on the same.
    2. Chancery—jurisdiction to enforce payment of benefits promied. A mutual benefit association, a corporation not organized for pecuniary profit, having no surplus, and relying entirely upon mortuary assessments made upon each death of a member for the payment of benefits to the beneficiaries of decedent, gave a certificate of membership to a member, in the sum of $5000, whereby it promised, upon proof of his death, that an assessment should be levied upon the surviving members to the amount of the certificate, which sum, when collected, less the expenses and collection costs, it would pay to his devisees, in. case he left any, and if he left none, to his legal heirs. It was held, that a court of chancery might properly take jurisdiction of a bill brought by the heirs of the deceased member to enforce payment of the certificate, by compelling a specific performance of the contract.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Knox county; the Hon. Abthub A. Smith, Judge, presiding.
    Messrs. McKenzie & Calkins, for the appellant:
    Appellees claim that the amount named in the certificate is due and payable to them; that it is an executed contract; that they have fully performed the conditions, and that nothing remains but the payment of money. If so, their remedy is at law. Jones v. Newhall, 115 Mass. 97; Lane v. Adams, 19 Ill. 167; Thomas v. Caldwell, 50 id. 138; Long v. Barker, 85 id. 431; Puterbaugh v. Elliott, 22 id. 157.
    When the consideration on the part of the plaintiff is executed, and the thing to be done on defendant’s part is mere payment of a sum of money due immediately, this constitutes a debt, for which the plaintiff may declare in the general count of. an indebitatus assumpsit. Canal Co. v. Knapp, 9 Pet. 466 ; Thomas v. Caldwell, 50 Ill. 138 ; Throop v. Sherwood, 4 id. 98; Walier v. Brown, 28 id. 378; First National Bank v. Hart, 55 id. 62.
    Then, if appellees, under the allegations of their bill, were entitled to recover, they had a clear and' complete remedy at law, and could have filed a declaration in assumpsit, on the common counts, and obtained a judgment for the amount claimed, viz, $5000. Rev. Stat. 1874, chap. 10, sec. 10; Insurance Co. v. Nelson, 65 Ill. 417; Life Ins. Co. v. Palmer, 81 id. 91.
    • The fund in this case was made payable to “his devisees, as provided in last will and testament, or in the event'of their prior death, to -the legal heir. ” The contract must be held as expressing the entire and exact ■ meaning of the parties, and no evidence of extrinsic matters or usages can be received to vary its terms. Fire Ins. Co. v. Eddy, 49 Ill. 109; Sanford v. Rawlings, 43 id. 93.
    Messrs. Bennett & Green, for the appellees:
    The remedy is not at law, as the contract named in the certificate is still executory. After judgment at law the beneficiary would have to resort to mandamus, as the corporation has no property or surplus, and relies entirely upon mortuary assessments for payment of benefits. Mandamus will not lie to enforce executory contracts. People v. Delaney, 96 Ill. 511.
    A court of equity is the proper forum in which to enforce the certificate, "the appellant is in effect a trustee, having control of a fund distributed among its certificate-holders, from which, and from which only, benefits can be paid, and it is especially appropriate that-equity shall take jurisdiction over the same. Besides,- as held in many States, an association organized for the" purposes spfecified in the‘charter of the appellant, and one, especially, as stated in the by-laws, organized not for the pecuniary profit of its members, either is, or nearly approaches, the nature of a charity. League Association v. People, 90 Ill. 169; Indianapolis v. Grand Master, 25 Ind. 518; Duke v. Fuller, 9 N. H. 536; Burdine v. Grand Lodge, 37 Ala. 478.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a bill in chancery, brought by the heirs of Edward J. Sears, deceased; consisting of -his father, mother and two sisters, against the Covenant' Mutual Benefit Association of Illinois, to recover the benefit money of $5000 agreed to be paid by a certificate of membership in said association, issued to and held by said Sears at the time of his death. The circuit court decreed in favor of the complainants. The decree was affirmed by the Appellate Court for the Second District, and an appeal then taken to this court.

As declared by its charter and by-laws, “the object and business of this association shall be to afford financial aid and assistance to the widows, orphans, heirs or devisees of deceased members.” The certificate of membership which was issued to the deceased in consideration of a membership fee of $10 paid, and of the payment of such other accounts for mortuary assessments, expenses and collection costs as might be required, constituted him a member of the association, with all the rights and privileges of the same, and provided that upon proof of his death, he having complied with the conditions of the certificate, an assessment should be levied upon the surviving members to the amount of the certificate, ($5000,) which “sum so collected on such assessments (less expenses and collection costs) the association hereby agrees well and truly to pay, or cause to be paid, as a benefit, to his devisees, as -provided- in last, will and testament, or in the event of their prior death, to the legal heir or devisees of the certificate-holder.” The deceased died intestate, never having been married, and leaving the complainants his only heirs.

It is admitted that there had been compliance on the part of the deceased with all the conditions of the certificate, and no question is made that if devisees were here suing they would be entitled to recover. But it is denied that heirs have any rightful claim to the money agreed to be paid by the certificate. The object of this association,—the very end of its being,—was to afford financial aid and assistance to the widows, orphans, - heirs' or devisees of its deceased members. This was done by means of the benefit money promised in members’ certificates, which was paid over after their death. The deceased became a member for the sole purpose of securing the provision of this benefit money for one or more of said classes of persons which he might leave surviving him. The mortuary assessments, and other payments of money which he made, were for this purpose, and no other. It would be a very hard construction, and defeat of intention, to hold that the heirs, the only class of the beneficiary persons the deceased left surviving him, should not take any of the money promised by the certificate, and that all the payments of money made by the deceased should have been for no purpose, merely because he had never made a will and had devisees. Such a construction surely should not be adopted, unless it is compelled by language which clearly will not admit of any other interpretation. The certificate provides that upon proof of the certificate-holder’s death, an assessment shall be levied on the members for the full amount of the cértificate. This implies that the money so raised is to be paid over to some one. Then comes the promise of the certificate that the association will pay the sum so collected on such assessments1'as a benefit to the decedent’s “devisees, as provided in last will and testament, or in the event of their prior death, to the legal heir or devisees of the certificate-holder. ” It is true the letter is, that in the event of the prior death of the devisees, the money is to be paid to the heirs. But is it the meaning that the money was to be paid to the heir's Only in the event of the prior death of devisees ?. The clear intent is, that either devisees or the heirs,—one or the other of them,—should take. The certificate appears to assume that there was á will, and devisees under it, and so provides for payment to them, or in the event of their prior death, to the heir" of the certificate-holder. It would seem to be' great violence to intention" that the" money should not be paid over, but that it' should be held by and go to the association while there were heirs to take it. The meaning evidently was, that the money should go to devisees if there were devisees to take it, and that if there were not devisees to take it, then it should go to heirs. The circumstances of there having been a will, devisees under it, and their prior death, were' hot important. The essential thing was, there not being devisees to-take, and not there having been devisees and they having died. Non-existence, by the true meaning, was the same as prior death. The substantial promise was to pay to devisees if there were devisees to take, and if not, then to pay to heirs. We think this the fair and reasonable construction of the agreement, which, in view of the purpose of the association, may well- be adopted.

Objection is made that a will may hereafter appear, and the association be compelled to make re-payment of the certificate to devisees. There is a possibility of this, but no reasonable probability. The proof is quite satisfactory that there was no will. If there were reasonable ground of apprehension on this score, it might be proper to require indemnity against such a contingency. But we do not think it called for in this case.

Objection is taken to the jurisdiction of the court,—that there was an adequate remedy at law. The certificate of membership does not contain any contract to pay to the beneficiaries $5000, or any sum, absolutely, but to levy assessments, ratably, upon all members holding certificates in force at the death of decedent, for an amount not less than the limit of the certificate, and to pay over the sum so collected on such assessments, less the collection costs. As the corporation is not organized for “pecuniary profit, ” has no surplus, and relies entirely upon the mortuary assessments made upon each death for the payment of benefits to the beneficiaries of a decedent, it would be difficult to realize anything by execution. And the association stands ás a trustee of a fund in the hands of its numerous members, but belonging to the beneficiaries, which can be called in, by assessment, for their use. It would seem, then, that a court of equity might properly be resorted to as being papable of affording , a more adequate remedy, by directing a specific performance of the contract of the defendant by the levying of the proper assessments.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


text:
    Mary Cleaver v. Eleanor J. Smith et al.

      Filed at Ottawa May 15, 1885.

    1. Chancery—dismissal for want of equity—or for want of prosecution—which is proper. A bill in chancery was filed April 21, 1880, on which a summons issued, which was returned not found, and on June 10,' following, all the defendants except one answered. Replication was filed on June 28. No further steps were taken in the cause until December 3, 1880, when the following order was entered: “This cause being this day called for hearing, come the defendants, by their solicitors, and the complainant comes not, nor does any one for her, and on motion of defendants it is ordered that this cause be and is hereby dismissed at complainant’s costs, for want of equity:” Held, that the dismissal for want of equity was erroneous. The proper order would have been a dismissal for want of prosecution.
    2. Same—practice—where a case is improperly placed on trial docket. If 9 chancery cause is through inadvertence set upon the trial docket- before it is ready for hearing, it is the duty of the complainant to have the order placing the case on such docket, set aside; and if he does not, he. can not complain that the cause is dismissed for want of prosecution when reached, in his absence, on the call of the docket.
    3. Practice—how far parties chargeable with notice of all steps in a cause. Parties are bound, at their peril, to take notice of all orders regularly made in the progress of a cause. So if the cause is placed upon the trial docket, it is the duty of the parties to be present when it is reached on the call for final disposition; and if they are not, in the absence of a reasonable excuse, they must suffer the consequences.
    Writ of Error to the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Messrs. McCoy, Pope & McCoy, for the plaintiff in error:
    To render a final decree on the merits without any hearing or submission at all, is-clearly error. Blair v. Reading, 99 Ill. 610.
    All that could have been legally done was to dismiss the bill for want of prosecution, and without prejudice. Kempton v. Burgess, 136 Mass. 192; McKinney v. McKinney, 36 Mich. 37.

      The record shows that the case was not ripe for a hearing. Charles J. Smith, a necessary defendant, was not served with process, and had not entered his appearance. The court had-no jurisdiction so far as he was concerned.
    The entry that the defendants came by their solicitors, does not enter the appearance. ' Those words will refer to the defendants in court, only. Gardner v. Hall, 29 Ill. 277; Klemm v. Dewes, 28 id. 317.
    Where persons who are necessary parties refuse to appear, and the court has no power to reach them by process, the bill must be dismissed without prejudice. Town of Virden v. Needles, 98 Ill. 370; Piquet v. Swan, 5 Mason’s C. C. 561; Chiles v. Allen's Heirs, 2 Marsh. 351; Key v. Hord, 4 Munf. 485; Schwab v. Mabley, 47 Mich. 512; Frink v. Bentley, id. 512; Thompson v. Clay, 1 J. J. Marsh. 413.
    The proper course would have been to enter a rule nisi that unless in a given time the proper parties were made, the suit as to those parties should be dismissed. Thompson v. Clay, 1 J. J. Marsh. 413; Chiles v. Allen’s Heirs, 2 id. 351.
    Plaintiff in error is entitled to costs. Rev. Stat. chap. 33, sec. 22.
    Messrs. H. S. & F. S. Osborn, for the defendants in error:
    The bill was properly dismissed for the laches of the complainant in not preparing the case for an early hearing. The bill was a cloud on the defendants’ title.
    It is true the decree, as entered, can not well be sustained on this record. We ask to have the proper decree entered now, by this court,—that is, a dismissal without prejudice. Kempton v. Burgess, 136 Mass. 192.
    If a cause is remanded without specific instructions, it is suggested that the rights of intervening innocent purchasers should be protected in any decree rendered by this court. McJilton v. Love, 13 Ill. 494; McLagan v. Brown, 11 id. 519; Goudy v. Hall, 36 id. 319; Feaston v. Fleming, 56 id. 457;
      Wadhams v. Gay, 73 id. 415. And that the costs in this court should he taxed against the plaintiff in error, or abide the final result of the cause. McKinney v. McKinney, 36 Mich. 37; Schwab v. Mabley, 47 id. 512; Frink v. Bentley, id. 515; Kempton v. Burgess, 136 Mass. 192.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Mary Cleaver, plaintiff in error, on the 21st of April, 1880, filed a bill in the Superior Court of Cook county, against the heirs at law and personal representatives of William Sidney Smith, late of Suffolk county, New York, seeking to recover certain real estate in the city of Chicago. In the view taken of the case it is not necessary to discuss the particulars of the controversy. A summons was issued against the defendants on the same day the bill was filed, which was subsequently returned “not found. ” There were ten of the heirs, all of whom, except Charles F. Smith, on the 10th of June, 1880, filed a joint and'several answer, denying the equities of the bill, and showing that the said Charles F. had disposed of his interest in the property before the filing of the bill. On the 28th of the same month, a general replication was filed to the answer. .

The record fails to show that any steps after the issuing of the original summons were ever taken by complainant to procure service on the said Charles F. Indeed, no steps of any kind seem to have been taken in the case after the filing of the replication, until the third day of December, 1880, being a period of some five months, when the following final order was entered in the cause: “This cause being this day called for hearing, come the defendants, by their solicitors, and the complainant comes not, nor does any one for her, and on motion of defendants it is ordered that this cause be and is hereby dismissed at complainant’s costs, for want of equity.”

It is clear the decree as rendered can not be sustained. Indeed, this is conceded by solicitors for defendants in error. On the other hand, it is equally clear that in view of the apparent laches of0 plaintiff in error, wholly unexplained, the court, when the cause was reached upon the call of the docket, ■would have been fully warranted in dismissing the bill for want of prosecution. We must assume the case had been placed upon the trial docket, otherwise it would not have been called for a hearing, and if it had, through inadvertence or otherwise, been improperly placed there, it was the duty of plaintiff in error to have had the order placing it on the trial docket set aside, if the cause was not ready for a hearing.

Parties are bound, at their peril, to take notice of all orders regularly made in the progress of a cause. When, therefore, a cause is regularly placed upon the trial docket, it is the duty of the parties to be present when the cause is reached on the call for final disposition, and if they are not, in the absence of a reasonable excuse, they must suffer the eonsequences. So far as the merits of the controversy are indicated by the documentary proofs and exhibits in the cause, we see nothing favorable to complainant, and from this fact, taken in connection with the unexplained laches on her part, we are of opinion the ends of justice will be best subserved by entering the proper decree in this court.

As the decree of the court below is erroneous in dismissing the bill “for want of equity, ” instead of “for want of prosecution, ” as it should do, it is for that reason reversed, and the defendants in error are taxed with the costs in this court, and the plaintiff in error with all costs in the court below, and a decree will be entered here dismissing the bill without prejudice.

Decree reversed.