author: Mr. Chief Justice Sheldon

text:
    George Hairston et al. v. Lorenzo C. Ward et al.

      Filed at Ottawa November 20, 1883.

    Deed of trust—setting sale aside for want of personal- notice. On bill filed to set aside a trustee’s sale and deed, made under a deed of trust, on the ground the sale was made in violation of a promise to give the debtor’s agent notice before taking steps to sell, in time to enable him to make payment, the evidence as to such promise was conflicting and about equally balanced, and the subsequent conduct of the debtor after the sale was inconsistent with the fact of there having been any such promise or of any reliance upon it, and there were subsequent occurrences that took place between the parties before the sale which did away with the effect of any such promise, if any was made, in which the debtor had time given him to make payment, and was notified that no further extension would be given: Held, that the bill was properly dismissed, the proof showing no sufficient ground to set aside the sale.
    Appeal from the Circuit Court of Cook county; the Hon. T. A. Moran, Judge, presiding.
    Messrs. Bisbee, Ahrens & Decker, for the appellants.
    Mr. John Woodbridge, foi"the appellees.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

On the 17th day of August, 187é, George Hairston and Nicholas E. Hairston executed a bond to Lorenzo C. Ward, for the payment to him of $11,000 on the 17th day of February, 1877, with interest at the rate of ten per cent per annum, payable semi-annually, the interest payments being evidenced by five interest coupons, to secure the payment of which the said Hairstons executed a trust deed, with power of sale to Pindar Ward, upon certain real estate in Chicago, being outside property, and consisting of 9T^30- acres of land. On the. 8th day of December, 1879, the trustee in the trust deed, for default in the payment of the principal and accrued interest of said indebtedness, offered the said premises for sale at public sale under the deed of trust, and struck off the same to Lorenzo C. Ward, who bid $7000 therefor, which amount, less expenses, was credited on the bond, and he received the usual trustee’s deed for the premises. On June 20, 1881, the Hairstons filed their bill in chancery in the circuit court of Cook county to set aside said trustee’s sale and trust deed, and to redeem the premises, on the sole ground that Lorenzo C. Ward, before the sale, had agreed with Edgar Loomis, the agent of the complainants in Chicago, that before he took any steps to foreclose the trust deed he would give Loomis personal notice, and ample time to get and pay Ward the money, and that the sale was made without such notice, and without the knowledge of- complainants or Loomis. Upon hearing, on proofs, the circuit court dismissed the bill, and the complainants appealed to this court.

The evidence is not satisfactory that there was the promise made which is relied upon as the ground for relief. It is testified to by Loomis, and denied’by Lorenzo C. Ward. Loomis’ testimony is, that he há'd a conversation with Ward upon the subject of the indebtedness, and that “finally Mr. Ward wouldn’t agree,—would not say that he would hold it any particular time; but that before he took any steps to foreclose the trust deed he would give me personal notice, and ample time to get and pay him the money.” ' Mr. Ward denies making this statement, or that he at any time talked with Loomis on the subject, and promised him that he would give him any notice whatever.

Subsequent to the sale there were two intervieVs between George Hairston and Lorenzo C. Ward,—one in June, 1880, and one in June, 1881,—when Hairston came to St. Charles, in this State, where Ward lived, to see him in regard to the sale and the property. There is uncontradieted testimony that at neither of these interviews did Hairston express any dissatisfaction at the making of the sale, or say anything whatever of such a promise having been made; and that at the first interview Hairston said, that in all this business and the transactions between them he had nothing to complain of,—no unfairness on the part of Lorenzo C. Ward. This is conduct inconsistent with there having been such a promise, or at least with there having been any reliance upon it.

But had there been the promise to Loomis as testified to, there were subsequent occurrences that took place between George Hairston and Ward, which, we think, do away with the effect of such promise, as affording any ground for relief in this case. Loomis is a little indefinite about the time of the supposed promise, but in the bill the time of the promise is stated as “at about the maturity .of the bond.” On October 10, 1877, some eight months after the maturity of the bond, (and so, ás we take' it, after the supposed promise to Loomis,) Ward writes this letter to one of the Hairstons:

“St. Charles, Oct. 10, 1877.
“N. E. Hairston, Esq., Crawfordsville, Miss.:
“Dear Sir—I have been hoping to hear from you since my last. I have bought in your property for taxes,—about $1800, for three passed years. * * * But now, my friend, how soon are you coming up, to square up interest and taxes ? You must get round. The principal can run. Write me. * * * Don’t you see I am getting a good deal of money in this ? It is crowding $15,000.
“Yours, truly, L. C. Ward.”

On February 27, 1878, George Hairston called upon Lorenzo C. Ward, at St. Charles, and paid him $500. At that time there was some $3500 due for interest, and taxes which Ward had paid. Ward testifies: “I remember the payment made by Hairston to me of $500, in 1878. * * * At that time had some conversation with Hairston about this matter. I said to him he need not ask for further favors unless he paid right up. That was before and after he paid the $500. He wanted that I should extend it a short tiíne, until he could go home, and that he would send the amount, at least of the taxes and interest behind and falling due, and I refused, but at last I said: ‘It will be the last chance unless you pay up; the $500 is no inducement; I will make no promise to give you further time.’ I had tried him a year, and it was useless. He replied he would pay me $500, and would show me by sending right up the balance. He sent not a dollar further. ” There does not appear to have been any further communication between the parties before the sale.

Now, it seems to us that these subsequent occurrences between Ward and the principals themselves should be taken as doing away with or as answering the supposed promise to Loomis, the agent, at some time before, if there had been such a promise made; that such promise could not thereafter be reasonably relied upon, and lull the complainants into security that no proceeding would be had under the trust deed until some further notice had been given, and ample time to get the money. Loomis says the promise to-him was to give him personal notice, and ample time to get and pay him (Ward) the money. Here was a substantial fulfillment of such a promise by personal notice to the principals themselves, and giving them ample time. They were distinctly notified that the interest and taxes must be paid immediately, —that no further time would be given unless they were so paid. It was virtually a notification that unless such payment of interest and taxes was made immediately, or at least upon Hairston’s return to Mississippi, that then, and without any further delay, the trust deed would be foreclosed,—and there could not reasonably be reliance upon anything different. After this, there was ample time allowed to raise and pay the money before making the sale, viz., from February 27, 1878, until December 8,1879. The trust deed itself was in tbe usual form, and the only notice it required was thirty days’ publication of notice of the sale in a daily Chicago newspaper, which was given; and besides, there was in the trust deed an express waiver of personal notice of the sale.

We are unable to say that the decree is unwarranted by the evidence, and it is affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Mulkey Mr. Justice Scott,

license: Public Domain

text:
    David J. Thomas v. The Fame Insurance Company

      Filed at Ottawa November 20, 1883.

    1. Peaotioe—when Appellate Court reverses, hut fails to find facts—■ preswmption. Where the Appellate Court reverses the judgment of a circuit court, but fails to recite in its final order the facts as found by it, it will be presumed that the Appellate Court found the facts the same way as did the trial court, and reversed for some error of law in the proceedings; and in such case, if the record of the trial court fails to show any error as to the law, the judgment of the Appellate Court must be reversed.
    2. Amendment—change of parties is not a change of the action. It was evidently the intention of the legislature in adopting the provision in section 24 of the Practice act, that no amendment after the commencement of the suit and before final judgment, resulting merely in a change or substitution of parties to the action, or in a change of the form of the action, should be deemed a change of the action itself. The identity of the cause of the action, in such case, is still preserved.
    3. Same—right of defendant to plead limitation after amendment. Where, after the time limited by contract for bringing an action on a policy of insurance, an amendment is allowed, not changing the original cause of action or ground on which a recovery is sought, but merely changing the parties plaintiff by substituting another person as plaintiff, a plea setting up the limitation presents no defence, the suit having originally been commenced within the time limited.

      4. But where some new cause of .action has been introduced into a suit by amendment, against which the Statute of Limitations had run before making such amendment, the defendant will be entitled to present the bar of the statute as to such new claim or cause of action. '
    5. iNStraANOE—breach of warranty a defence, without showing an increase of rislc. Where an application for insurance provided that the answers to the questions therein propounded should form a part of the contract of insurance, and a warranty on the part of the applicant, and the policy provided that for any misrepresentation or concealment touching the risk it should be void, the company may avail itself of the applicant’s breach of warranty in the description of the property insured, and the survey thereof, without showing, or its otherwise appearing, that the risk was thereby materially affected. If the description was false, it is unimportant whether this was material to the risk or not.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Mr. Philip Stein, for the appellant:
    The plea of limitation presented no defence. The amendment introduced no new cause of action. It was immaterial to whom the appellee might pay, if liable on the policy.
    A warranty in the law of insurance is never created by construction. It must appear in express terms, affirmatory or promissory, or must necessarily result from the nature of the contract. Jefferson Ins. Co. v. Cotheal, 7 Wend. 80; Mutual Benefit Life Ins. Co. v. Robertson, 59 Ill. 123.
    Warranties are construed strictly against those for whose benefit they are made, and so, if possible, as to avoid a forfeiture. Hyde v. Bruce, 3 Doug. 213; World Mutual Life D Ins. Co. v. Schultze, 73 Ill. 586; Saylor v. Insurance Co. 2 Curtis’ C. C. 613; Blood v. Howard Fire Ins. Co. 12 Cush. 472; Catlin v. Springfield Fire Ins. Co. 1 Sum. 434; Ripley v. Ætna Ins. Co. 29 Barb. 552; May on Insurance, secs. 162, 171; Flanders on Fire Insurance, (2d ed.) 292; Wood on Fire Insurance, sec. 167; Morse v. Insurance Co. 30 Wis. 540; Carter v. Himboldt Fire Ins. Co. 17 Iowa, 456.

      The fact that the application was submitted as a warranty does not make it one, unless the policy adopts the application, by apt and proper language, as a part of the contract, and not always even then. Boardman v. N. H. Mutual Ins. Co. 20 N. H. 551; Owens v. Holland Purchase Ins. Co. 56 N. Y. 565; Hartford Protection Ins. Co. v. Harmer, 2 Ohio St. 461; American Popular Life Ins. Co. v. Day, 39 N. J. 89; Howard Fire and Marine Ins. Co. v. Cornick, 24 Ill. 455 ; Trench v. Chenango Ins. Co. 7 Hill, 122; Farmers’ Ins. Co. v. Snyder, 16 Wend. 481; Wood on Fire Insurance, secs. 138, 144; May on Insurance, sec. 159, et seq.

    Although a policy refers to and makes the application a part of it, yet only statements made strictly in answer to the inquiries contained therein can be regarded as warranties. Flanders on Fire Insurance, (2d ed.) 236, 237; Wood on Fire Insurance, secs. 144, 160; Howard Fire and Marine Ins. Co. v. Cornick, 24 Ill. 455; Hartford Protection Ins. Co. v. Harmer, 2 Ohio St. 461.
    The description of the risk in the policy is not a warranty. It simply names and identifies the premises. Gerhauser v. North British Ins. Co. 7 Nev. 185 ; Schultz v. Merchants’ Ins. Co. 57 Mo. 331; Browning v. Home Ins. Co. 71 N. Y. 508; Maher v. Hibernian Ins. Co. 6 Hun, 353; Billings v. Tolland Ins. Co. 20.Conn. 139.
    Messrs. Geant, Swift & Beady, for the appellee:
    By the amendment a different plaintiff sued, but his suit was not brought within one year, and no recovery could be had by the present plaintiff. Dunphy v. Riddle, 86 Ill. 22; Crowl v. Nagle, id. 437; McGraw et al. v. Bayard et al. 96 id. 154; Miller v. McIntyre, 6 Pet. 61; Illinois Central R. R. Co. v. Cobb, 64 Ill. 140; King v. Avery, 37 Ala. (N. S.) 173; Woodward v. Ware, 37 Me. 564.
    There was a breach of warranty by the plaintiff, which renders the policy null and void. The answers did not disclose the fact that shingles were made upon the premises, and the diagram was incorrect, and failed to show that part of the building where the shingles were made,- etc. These omissions were fatal to the right of recovery, whether accidental or intentional. De Hahn v. Hartley, 1 Term Rep. 343; Fowler v. Ætna Fire Ins. Co. 6 Cow. *673; Ripley v. Ætna Fire Ins. Co. 30 N. Y. 136; Burritt v. Saratoga County Mutual Fire Ins. Co. 5 Hill, 188; Ætna Ins. Co. v. Grube, 6 Minn. 82; Blumer et al. v. Phoenix Ins. Co. 45 Wis. 622; Dewees v. Manhattan Ins. Co. 34 N. J. 244; Forbush v. Massachusetts Ins. Co. 4 Gray, 337.
    Where the application is referred to as forming a part of the contract, the statements therein are held to have the force and effect of warranties. May on Insurance, (2d ed.) sec. 159.
    Where parties by express agreement make certain matters inquired into material, it will not be open to question whether or not they were actually so. Williams v. N. E. Mutual Fire Ins. Co. 31 Me. 219; Ripley v. Ætna Ins. Co. 30 N. Y. 136; Gahagan v. Union Mutual Ins. Co. 43 N. H. 176; Commonwealth Ins. Co. v. Monninger, 18 Ind. 352; Abbott v. Shawmut Ins. Co. 3 Allen, 213; Wilson v. Conway Fire Ins. Co. 4 R. I. 141; Dewees v. Manhattan Ins. Co. 34 N. J. 247.
    Where the application' is prepared, signed and presented by the owner, the company have a right to rely upon its correctness, and if it is incorrect in any material part, it avoids the policy. Atlantic Ins. Co. v. Wright, 22 Ill. 474; Andes Ins. Co. v. Fish, 71 id. 622; Lycoming Ins. Co. v. Rubin, 79 id. 403; Burritt v. Saratoga County Mutual Fire Ins. Co. 5 Hill, 188; Marshall v. Insurance Co. 7 Foster, 157; Cumberland Valley Mutual Protection Co. v. Schell, 5 Casey, 31; Carpenter v. American Ins. Co. 1 Story, 57; Gould v. York County Mutual Fire Ins. Co. 47 Me. 409.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Some time in the month of June, 1875, one T. M. Taylor, a general insurance agent and broker, having an office at Minosha, Wisconsin, called upon David J. Thomas, the appellant, at his place of business in the town of Colby, same State, for the purpose of procuring Thomas’ insurance on his factory at that place, Taylor representing at the time that he was the agent of the Fame Insurance Company, the appellee, and other companies, naming them. The interview resulted in appellant giving to Taylor an application for $2000 insurance on the property, to be taken in such of the companies represented by him as he might select. The factory in question was used for the manufacture of clothes-pins, broom-handles and shingles, though there was nothing in the name of the establishment to indicate that shingles were made in it, it being simply called “Clothes-pin and Broom-handle Factory.” It appears, though, Taylor was well acquainted with the factory, and knew that one department of it was used for the manufacture of shingles. The application was made out by Taylor on one of the printed forms of the Planters’ Insurance Company, and was addressed to the Mercantile Insurance Company of Chicago, and the answers to some of the interrogatories were written down by him from his own knowledge of the business and premises, while the others were given by Thomas himself. The questions in the printed blank, which were answered partly by Taylor and partly by Thomas, as just stated, had the following caption: “The applicant will answer particularly the following questions, and sign the same as descriptive of the premises, and forming a part of the contract of insurance, and a warranty on his part.” The questions and answers following this caption, so far as deemed material to the controversy, are as follows:

“I. Name of property.
“A. Clothes-pin and broom-handle factory.
“Building. How long and how wide is it ?
“A. 54x40, two-story; engine-room, 24x36.
“Boiler-house. Where is it located?
“A. West side of building.
“ [Show on diagram.]
What is the precise kind of goods made, and of ivhat material?
“A. Clothes-pins and broom-handles.”

Whether the application was either read to or by the appellant previous to his signing or to the issuing of the policy, is a fact not clearly settled by the evidence. While on its face the application contemplates, and in express terms requires, a diagram to be made out as a part of the_ same, showing the size, form, etc., of the building, and its relation to the surrounding property within a hundred and fifty feet distance, yet no such diagram was made out previous to appellant’s signing the application, nor did he ever see one till after the policy was issued, though one was prepared and annexed to the application as a part of it, presumably by Taylor, before it was submitted to the company. The diagram, as made out and presented to the .company, fails to truly represent the character, shape or extent of the factory, particularly that part of it which is used for the manufacture of shingles.

The application, with the diagram annexed, being thus prepared, was forwarded to one Eastman, an insurance broker of Chicago, with directions to obtain the required insurance. Eastman submitted the application to Southwick & Berne, who were, respectively, the general insurance agents of appellee and the Empire Fire Insurance Company. Upon a conference between these agents the risk was agreed to be taken and equally divided between the two companies, and policies were issued accordingly. The one issued by appellee (being the same now in suit) was, at the time of its execution, to-wit, on the 26th of June, 1875, delivered by Southwick to Eastman, the former paying to him at the time the customary brokerage fee. Eastman forwarded the policy to Taylor, who subsequently delivered it to the assured. In August following, appellant paid the premium ($50) to Taylor, who forwarded it to Eastman, and the latter paid it to the company. On the 26th of May, 1876, the insured premises were totally destroyed by fire, and the loss was regularly adjusted by the two companies, through Berne, the general agent of the Empire Fire Insurance Company. By the terms of the policy the loss, if any, was made payable to the Mann Brothers, of Milwaukee, as their interest might appear. The appellee having declined to pay the loss, this suit was originally commenced on the 26th of September, 1876, in the name of. appellant, for the use of Joseph and Henry Mann, but appellant’s name as plaintiff was subsequently, on the 18th of November following, by permission of the court, stricken out, and the names of the Manns substituted as plaintiffs, and thereafter the suit was prosecuted in their names until the 4th of February, 1881, when, by leave of the court, the name of appellant was restored as plaintiff in the cause, and the records and files in the case were changed accordingly, since which time the cause has proceeded in the name of appellant, for the use of Joseph and Henry Mann, as- originally commenced.

There have been two trials of this case in the Superior Court of Cook county, where the action was commenced, in each of which the plaintiff recovered a judgment for the face of the policy, with legal interest. Both judgments, on appeal to the Appellate Court, were reversed for alleged errors in law, and the cause was remanded for further proceedings in conformity with the views of that court, as expressed in the several opinions filed therein. It appears, however, after the last appeal had been thus disposed of, by a stipulation between the parties it was agreed the remanding order should be stricken out, so that the case might be brought directly to this court for consideration, which was accordingly done, and the case is now here on appeal.

It is claimed by appellant this case is governed by the Peck case, 98 111. 139, and should therefore be reversed, for the reasons stated in that case. This is a. misapprehension. That case holds that where there is a reversal of the judgment of the trial court by the Appellate Court, and the latter court fails to recite the facts as found by it in its final order on appeal to this court, we must assume, by reason of such non-recital of facts, the Appellate Court found the facts the same way as the trial court, and that consequently its reversal, of the judgment of the trial court must háve b'een for some supposed error of law, and if, upon an examination of the record of the trial court, there is in the judgment of this court no such error of law warranting the reversal, as we' found in the Peck case, the judgment of the Appellate Court will be necessarily erroneous, on the ground it reversed for a supposed error of law which had no real existence. So in this case, we must assume, by reason of the non-recital of the facts in the final order of the Appellate Court, that court found the facts the same way as found by the trial court, and must therefore have reversed for some supposed error of law in the proceedings of the trial court. If, upon an examination of'the record by us, we should, as in the Peck case, find no error of law, we should, under the authority of that case, reverse the judgment in this ease. It remains, therefore, to inquire, whether any of the errors relied on for a reversal in the Appellate Court are well founded or not.

In the view we have taken of the case it will not be neces: sary to consider all the questions raised by the assignment of errors in the Appellate and this court. " It is sufficient for present purposes to determine whether, upon any of the errors assigned in that court, the judgment of the trial court was properly reversed.

The policy in this case, like most of policies, contains a clause requiring the action, in case of a loss, to be brought ■within twelve months after its occurrence. Upon the substitution of Thomas as'plaintiff for the Manns, after the first trial in the Superior Court, the company, proceeding upon the theory this change in the parties was in legal effect a discontinuance of the original suit, by leave of the court filed a special plea setting up the limitation in the policy in bar of the action, the substitution as to parties having been made more than one year after the loss. Whether the above facts relied on in support of the plea constituted a defence to the action, presents a.question which occupies a prominent position in appellee’s brief, and the ruling of the trial court upon it was one of the main errors - relied on by the company for a reversal in the Appellate Court, and it is equally relied on here as sustaining the reversal there. We do not think the facts shown in support of the plea sustain it,—or, in other words, we do not think the limitation contained in the policy, under the facts as shown by the record, affords any defence to the action. The 24th section of the Practice act provides: “At any time before final judgment in a civil suit amendments may be allowed on such terms as are just and reasonable, introducing any party necessary to be joined as plaintiff or defendant, changing the form of action, and in any manner, either of form or substance, in any process, pleading or proceeding, which may enable the plaintiff to sustain the action for the claim for which it was intended to be brought, or the defendant to make a legal defence. The adjudication of the court allowing an amendment shall be conclusive evidence of the identity of the action. ” In furtherance of the intention of the legislature a very broad and liberal construction has been given to this section. It was evidently the intention of the legislature in adopting this provision, that no amendment after the commencement of the suit and before final judgment, resulting in a change or substitution of parties to the action or in a change of the form of the action, should be deemed a change of the action itself. (Sidway v. Marshall, 83 Ill. 438 ; Teutonia Life Ins. Co. v. Mueller, 77 id. 22; Dickson v. Chicago, Burlington and Quincy R. R. Co. 81 id. 215; Challenor v. Niles, 78 id. 78.) The only limitation upon the right thus conferred is, that amendments are to be allowed “on such terms as are just and reasonable/’ and “to enable the plaintiff to sustain the action for the claim for which it was intended to be brought, or the defendant to make a legal defence. ”

There is no just ground for the claim that by reason of the amendment making new parties plaintiff there resulted any change in the cause of action. The object of the suit after the amendment was precisely the same as it was before, namely, to recover the amount of the policy on account of the destruction by fire of the insured premises, and so far as we can see, assuming there was a right of recovery at all, it was and is a matter of total indifference to the company whether the recovery is in the names of the Manns or in the name of Thomas for their use. Had some new claim or cause of action been introduced into the suit by the amendment, against which the Statute of Limitations had run, or before the making of such amendment, the position of appellee would-be clearly right; but such is not the ease. By the express terms of the statute the allowance of the amendment is made conclusive of the identity of the action. If, then, both the action and cause of action, before and after the amendment, were precisely the same, as they certainly were, then the limitation of one year in the policy clearly presented no defence to the action, as it is conceded the original action was commenced within the year.

As already appears from the caption of the application, appellant was required to answer, specifically, certain questions, “and sign the sanie as descriptive of the premises, and forming a part of the contract of insurance, and a warranty on his part. ” In addition to this the policy itself contained, among others, the following provisions:

“Applications for insurance on property must be in writing, and must specify the construction and materials of the building to be insured,- * * * by whom occupied, whether as a private dwelling, or how otherwise, its situation with respect to contiguous buildings, and their construction and materials, and whether any manufacturing is carried on within or about it; * '*' * and such survey and description shall be taken and deemed to be a part and portion of the policy issued thereon, and a warranty on the part of the insured.
“If any person effecting insurance in this company shall make any misrepresentation or concealment touching the risk to be assumed, * * * this policy shall be void. ”

In view of these provisions in the application and policy, and the additional fact that appellant, in answer to the question in the application, “What is the precise kind of goods made, and what material?” failed to make known that one part of the building was used for the manufacture, of shingles, the trial court was asked by the company to give to the jury the following instruction:

“If the jury believe, from the evidence,'that there was a shingle mill connected with the premises insured, and that this fact was not disclosed by the application upon which the policy in suit issued, and was not known to the defendant at the time the policy was issued, or - at any time before the fire, then the plaintiff can not recover. ”

—Which the court refused to do, but gave as a substitute for it the following modified instruction:

“If the jury believe, from the evidence, that there was a shingle mill connected with the premises insured at the time the application was signed by plaintiff, and that this fact was not disclosed by the application upon which the policy in suit issued, and was not known to the defendant or its agents at the time the policy was issued, or at any time before the fire, ancl that the existence and use of said shingle mill materially affected the risk under said policy, and if the jury further believe, from the testimony in this cause, that the plaintiff, ' Thomas, or his agent, intentionally suppressed from his xoritten application the fact of the existence and use of said shingle mill, knowing it to be material to said risk, then the plaintiff can not recover.”

<3

—To the giving of which, as modified, the company at the time excepted. The additions and modifications made by the court to the instruction as asked, are for convenience put in italics.

The instruction as modified we regard as-clearly erroneous. It ignores altogether the fact that the answers of the assured to the specific interrogatories contained in the application are therein declared to be made and signed %“as descriptive of the premises, and forming a part of the contract of insurance, and a warranty” on the part of the assured. It also leaves out of the question altogether the diagram or survey accompanying the application, which, as we have already seen, fails to truly represent the insured premises, especially the part of them used for the manufacture of shingles, although the policy in express terms declares “such survey and description shall be taken and deemed to be a part and portion of the policy issued thereony and a wairanty on the part of the assured.” The survey and description of .the property being thus made an express warranty by the assured, if false it was wholly unimportant whether they were material to the risk. Nevertheless, the jury were told by this instruction, before the company could avail itself of the defence afforded by the plaintiff’s breach of the warranty it was incumbent on the company to show, or for it to otherwise appear from the evidence, the risk was thereby materially affected. This view is certainly opposed to the general -current of authority on the subject, and it can not, therefore, receive our sanction. Columbia Ins. Co. v. Cooper, 50 Pa. St. 331; Denny v. Conway Ins. Co. 13 Gray, 492; Jefferson Ins. Co. v. Cotheal, 7 Wend. 72; Wall v. Howard Ins. Co. 14 Barb. 383; Sheldon v. Hartford Ins. Co. 22 Conn. 235; Commonwealth Ins. Co. v. Monninger, 18 Ind. 352; Barteau v. Phoenix Ins. Co. 67 N. Y. 595; Newcastle Ins. Co. v. McMorran, 3 Dowl. P. C. 225; Styles v. Northwestern Ins. Co. 2 Curt. 610; Wetherell v. Maine Ins. Co. 49 Maine, 200; Anderson v. Fitzgerald, 4 H. L. Cases, 484; Andes Ins. Co. v. Fish, 71 Ill. 620.

The giving of this instruction being a material error upon a vital point in the case, fully warranted the Appellate Court in reversing the judgment of the trial court as it did.

Judgment affirmed.

Mr. Justice Scott,

dissenting:

Originally this suit was brought by David J. Thomas, for the use of Joseph and Henry Mann, on a policy of insurance issued by the Fame Insurance Company, but subsequently, on leave given by the‘court for that purpose, Joseph and Henry Mann were substituted as plaintiffs, and from that time until the 4th day of February, 1881, the suit progressed in their names. On the day last mentioned leave was given to restore Thomas as plaintiff, for the use of Mann Bros., as the suit was originally commenced, which was done, and the declaration amended by adding a count in indebitatus assumpsit. To.the declaration .as thus amended defendant pleaded the general issue, and a special plea averring the identity of the causes of actions in both counts, and that it was expressly provided in the policy on which the suit was brought, that no action, of any kind, either at law or in equity, for the recovery of any claim on the policy, should be maintainable unless such suit should be commenced within twelve months next after such loss or damage under the policy had occurred. The replication filed traverses the identity of the causes of action as set forth in the several counts of the declaration, and avers the suit was commenced within twelve months next after the loss under .the policy was sustained. On the first trial in the Superior Court plaintiff recovered a judgment against the company for the amount due on the policy. That judgment, on the appeal of the company, was. reversed by the Appellate Court, and the cause remanded. A second trial resulted, as before, in a judgment for plaintiff, which was also reversed by the Appellate Court and the cause remanded, but afterwards, by consent of parties, the court vacated the order previously made remanding the cause, and thereupon plaintiff prayed and was allowed an appeal to this court.

It- can not be known, from anything appearing in this record, for what reason the Appellate Court reversed the judgment of the Superior Court,—whether it was on the merits of the case as made by the evidence, or on account of giving instructions for plaintiff or refusing instructions asked for defendant. If it were for the latter reason, it is obvious plaintiff can not be permitted to insist in this case it was error in the Superior Court to give instructions asked on his own behalf, nor that it was error to refuse instructions asked by defendant, as that is a matter that does not affect him injuriously, but favorably. On looking into the record of the rulings of the Superior Court.on questions of law, it is not seen that any of its decisions were prejudicial to plaintiff, and whether they were to defendant can make no difference, as it is not complaining, and can not complain in this court on the present appeal, no cross-errors having been assigned. The errors assigned in this court are, that the Appellate Court erred in reversing the judgment of the Superior Court and in awarding costs against plaintiff, and in not affirming the judgment of the Superior Court and awarding costs against defendant. As -has been seen, defendant on this appeal is not complaining of any decision made by the Appellate Court, and it must be understood as .acquiescing in that decision, .■whatever it was. (Fogarty v. Ream, 100 Ill. 366.) It is equally obvious the party appealing to this court can not complain of any ruling of the Appellate Court on the instructions given or refused at the trial, as they did not and could not affect Jhis interests in the trial court. As before remarked, the instructions of the trial court were all favorable to him.

The action of the Appellate Court in vacating the remanding order must be treated as in effect rendering a final judgment in that court against plaintiff on the merits of the case as made by the evidence, without regard to any action or ruling of the Superior Court, otherwise there could be no appeal to this court from its decision. (Harzfeld v. Converse, 105 Ill. 531.) If it were merely a judgment of reversal, and not a final judgment, it is plain no appeal would lie. By the Practice act the Appellate Court, in cases of appeal or writ of error, may render final judgment and cause execution to be issued. Unless that was done in this case no appeal would lie, and as the parties themselves have so treated the judgment of the Appellate Court, this court may also regard it as a final judgment, in the sense those terms are used in the statute. It is clear, then, that the only question that can be considered on the present appeal is, whether the Appellate Court erred in reversing the judgment of the Superior Court, and in rendering final judgment against plaintiff upon the merits of the case as made by .the evidence.

In eases of this kind no assignment of error is allowable that will call in question the finding of the inferior or Appellate Court on controverted questions of fact. The finding of the Appellate Court upon questions of fact in such eases is therefore conclusive upon this court. But on turning to the transcript of the record of the Appellate Court, it will be seen that court have embodied no findings of fact in their judgment or final order, and hence, according to the decision in-Coalfield Coal Co. v. Peck, 98 Ill. 139, it must be understood the Appellate Court did not find the facts of the case to be other or different than they were found by the trial court to he. In Lake Erie and Western R. R. Co. v. Zoffinger, 107 Ill. 199, it was held, where there is a conflict in the testimony as to the material facts, and the jury find the issues for plaintiff, that finding implies a finding of every fact the evidence tends to establish in favor of plaintiff, and that the affirmance of the judgment by the Appellate Court implies a finding of the facts in the same way, which latter finding is, of course, conclusive on the Supreme Court. In that case there was evidence tending to establish certain facts, and it was further held, that conceding the facts to be as ihey must have been found, a clear case was made,—that is, under the law,—in favor of plaintiff, where a recovery was justified. The question then recurs, was it error in the Appellate Court to render final judgment against plaintiff .on the facts as they must have been found by the trial court ? And that is the only question that can be considered on this appeal, as the case now comes to this court.

The logic of the opinion of the majority of the court, as I understand it, is, that because the trial court refused a proper instruction asked by defendant, that would justify the-Appellate Court in rendering final judgment against plaintiff, as was done, although on the facts, as the evidence tends to establish them in his favor, he might be entitled to a judgment under the law, if properly applied,—rat least this court will not consider whether on the facts, as they must have been found, the law was for plaintiff, and he should have judgment. If that is the decision of this court I most respectfully dissent from, the conclusion reached—a conclusion, with all due respect to the majority of the court, it seems to me, that has but little in its support, either in reason or authority. In the first place, the action of the court in refusing the instruction complained of at the trial, is a matter over w'hich plaintiff had no control, and it was certainly not his fault the -■court refused the instruction; and second, I understand the -conclusion reached is in conflict with the decisions of this court in Harzfeld y. Converse, supra, Lake Erie and Western R. R. Co. v. Zoffinger, supra, Schertz v. Indianapolis, Bloomington and Western R. R. Co. 107 Ill. 577, and Schroeder v. Trade Ins. Co. 109 id. 157. In all of these cases, assuming the facts to be as they must have been found by the tidal and Appellate courts, it was considered as a question of law whether the plaintiff was entitled to recover. In Harzfeld v. Converse, the facts as found by the Appellate Court were embodied in the final order, but it can make no difference whether they were found in that way or by a judgment of affirmance, which implies a finding of the facts the same as they were found by the trial court. In Lake Erie and Western R. R. Co. v. Zoffinger, the facts were understood to be .found by a judgment of affirmance in the Appellate Court, and it was held as a question of law that on the facts as they must have been iound the plaintiff was entitled to recover. I understand the case of Coalfield Coal Co. v. Peck, 105 Ill. 529, is in entire harmony with the cases cited.

. In the light of these decisions I propose to consider .whether the facts in this ease which the evidence tends' to establish in favor of plaintiff, and which, it must be understood, were found in his favor by the.trial and Appellate courts, show a cause of action in his favor. I am of opinion they do,, and will state some of the reasons on which my opinion is based-

As respects the limitation clause of the policy, as to the time in which suit should be commenced to recover any loss or damage under the policy, and which was pleaded as. a de-, fence in the trial court, .1 concur in the views expressed in the opinion of the majority of the court. Without discussing that question further, it is sufficient to say I concur with the court in holding it is no defence to the present action, as it was commenced in apt time. On this point in the case I understand all the members of the court agree.

It will be seen the policy provides applications for insurance must be in writing, and must specify the construction and materials of the building to be insured, or containing the property to be insured, by whom occupied, whether as a private dwelling or otherwise, and whether any manufacturing is carried on within or about it, and that such “survey and description” shall be taken and deemed to be a part and portion of the policy to he issued thereon, and a warranty on the part of the assured. Another clause of the policy declares if any person effecting insurance in the company shall make any misrepresentation or concealment touching the risk to be assumed, the policy shall be void. The application in this ease discloses the-fact the building insured was used for manufacturing “clothes-pins aiid broom-handles,” and the defence most insisted on is the alleged omission of the assured to disclose the fact that a portion .of the building was .used, at the time the insurance was effected, for the manufacturing of shingles. As before remarked, the Appellate Court, by their judgment or final order, did not find the facts to be different from what they were found .by the trial court, and as that court found the issues for plaintiff, this court must presume the jury found every fact material to the issue in favor of plaintiff, that the evidence tends to establish. It will therefore be necessary to look into the record to see what facts the evidence establishes, or tends to establish. It appears, from uncontradieted testimony, that one Taylor, an insurance agent residing at Minosha, came to plaintiff and wished to insure the property that was afterwards included in the policy; that he stated over a number of companies he had, and among others he mentioned the Fame Insurance Company of Philadelphia, defendant in this suit; that he (Taylor) examined the premises, and was familiar with all the kinds of manufacturing being done in the building; that the application for insurance was made out by Taylor on a blank of the Planters’ Insurance Company, and was addressed to the Mercantile Insurance Company of Chicago; that assured answered all the questions put to him by Taylor truthfully, so far as he knew, and noticed the answers when he signed the application; that Taylor did not ask plaintiff the question contained in the application, “Name the property,” to which the answer is written, “Clothes-pin and broom-handle factory; ” that he did ask, “How wide was it, ” (the building,) and plaintiff answered, “54x40that he did not ask, “What is the precise kind of goods made, and of what material; ” that he did not ask any question of that sort; that Taylor was around the premises before he took the application, and knew that plaintiff was manufacturing shinglés in the building'; that plaintiff looked over what Taylor asked, and looked over his own answers; that he looked over the written answers briefly, but he could not say he looked at every one of them; that when Taylor had filled it up “he turned the application over to him to sign it, and he did sign it; ” that at the time he signed it there was a kind of plat on the back of the application, but no diagram; that Taylor, when he took the application, represented that he was an agent of the defendant company; that plaintiff knew Taylor was in the insurance business at Minosha, and had an office there; that he received the policy from Taylor in about a week or ten days after the application was made, and paid him the premium ($50) about thirty days thereafter. It also appears that Taylor sent the application to Eastman, an insurance broker at Chicago; that Eastman gave it to the agent of defendant at Chicago ;■ that such agent issued the policy and delivered it to Eastman, and tha.t Eastman sent it to Taylor, who, as has been seen, delivered it to plaintiff.

Both parties disclaim the agency of Taylor in the premises. Without determining whether he should be regarded in law as the agent of defendant, it is quite certain he was not the agent of plaintiff, and plaintiff is in no way answerable for any misconduct on his part. His position was that of an insurance solicitor, and he acted iñ this transaction in that capacity. It was known to the agent acting, on behalf of defendant that Taylor was an insurance agent. It does not appeal’ the agent of defendant, when he issued the policy, knew the application for it. had been taken by Taylor, but he did know it came to him from Eastman, who was an insurance broker residing in Chicago. When insurance companies take applications for insurance from brokers in that business, they will not be permitted to treat such brokers as the agents of the assured, unless it clearly appears that relation existed. The better rule is, they shall be required to rely upon the integrity of such brokers, and if they practice any fraud upon the companies without the connivance of the assured, or any wrongful conduct on his part, the companies must bear the loss. All risk can be avoided by the companies refusing to take applications for insurance from any brokers except such as may be known to be entirely responsible. Any other rule ’* would make it possible to practice great frauds on parties wishing insurance. Applying this reasonable rule to the facts óf this case, if Taylor did anything that was wrong in taking the application upon which the policy was issued, his misconduct should not be imputed to plaintiff as wrongful conduct on his part.

ít is said the diagram on the back of the application for insurance was not accurate, and that defendant’s agent was deceived by it. That may be true, but whose fault was it ? It does not appear it was the fault of plaintiff, for he testified there was no diagram attached to it when he signed the application, and the jury must have so found, as no witness contradicts him in that respect. Nor does it appear who made the diagram; but as it was not made by or authorized by plaintiff, it is immaterial, so far as this case is concerned, who made it.

But a more material inquiry is, whether plaintiff is responsible for the omission to state in the application that shingles were also manufactured in the building to be insured. The application does show that “clothes-pins and broom-handles” were manufactured in the building. This answer was written, by Taylor himself, without any question having been put to plaintiff on that subject. But the answer-as written was true, and there was no breach of the warranty implied in every application for insurance in that respect. So far as plaintiff answered questions propounded to him by Taylor, it does not appear that he misrepresented anything, or made any false statements. Was he guilty of any concealment touching the risk to be assumed? The only complaint in this regard is the omission to state that shingles were also' manufactured in the building about to be insured. The assured was not asked to make any statement in that regard, and gave none. It was known to Taylor, who solicited the risk, that shingles were manufactured in the building, and plaintiff may have supposed it was not necessary to state that which was fully known to the party acting. There is not a single fact established by the evidence that tends to show the assured did not act 'in the utmost good faith in making the application on which the policy was issued. The-rule of law is, that when the assured makes a full and fair disclosure of all the facts that would materially affect the risk, so far as the company wish to interrogate him, and the agent, on behalf of the company, writes false answers to the questions propounded, without the knowledge of assured, and assured in good faith signs the application, he will not be responsible for any wrongful conduct of the agent. As before remarked, the broker taking the application in this case was in no sense the agent of the assured, and he was in no way responsible for any wrongful conduct of which he' may have been guilty, if he was guilty of any. Here the company relied on the'work done by the broker, and adopted it as-the basis of the insurance contract. In such eases there is much more reason for holding the broker was the agent of the company than of the assured, and if either party is to suffer from his misconduct, it should be the company that adopted his work. As has been seen, it appeared on the face of the application that “clothes-pins and broom-handles” were manufactured in the building on which the risk was to be taken. It will be noticed the application contained a question following the one under which was written, “Clothespins and broom-handles, ” “Is there any other business carried on in the building or buildings?” That question was not propounded to assured, and was not answered at all. It does not appear assured knew the application contained any such question. The agent of defendant says he read the application very carefully and thoroughly, and if so he must have known before he issued the policy that question was not answered. Below the signature of applicant there was a printed note, as follows: “Every question must be answered, or the application will be returned. ” Had the agent to whom the application was delivered observed the direction there given, it would have been his duty to return the application to applicant, that he might have an opportunity to answer the question, if it had been inadvertently overlooked. This would have been nothing more than fair dealing with applicant. . The provision as to the unanswered question at the bottom of the application distinctly notified the company if they did not wish to issue the policy without that question being answered, the application should be returned to the applicant. Omitting to return the application was equivalent to an express waiver of an answer to that question. Had it been returned, and the attention of the applicant called to it, no doubt his answer would have disclosed the fact shingles were also manufactured in the building. So far as the application disclosed the kind of goods manufactured in the building it was entirely accurate, and if the company desired fuller information, it should have returned the application for an answer to the question not answered, which would have given the necessary information. It may well be concluded the company was willing to take the risk without that question being answered. If so, it was their privilege, and if loss ensued on that account, it should he attributed to their want of due care in that regard.' A mere omission to answer a question is not a warranty that anything remains to he answered,' and so in case of a partial answer it has been held the warranty can not he extended past the answer. Cases sustaining this view of the law are Delleber v. Home Life Ins. Co. 69 N. Y. 256; Liberty v. Hall Ins. Co. 7 Gray, 261.

Assuming, as must he done, the jury found all the facts in favor of plaintiff the evidence tends to establish, I am of opinion the law is for plaintiff, and that the final judgment against him in the Appellate Court is erroneous, and .should be reversed. o


author: Mr. Justice Walker

text:
    Chicago, Rock Island and Pacific Railway Company v. Catharine Clark, Admx.

      Filed at Ottawa November 20, 1883.

    1. Evidence—habits of person to show he exercised due care. Where a brakeman was killed while attempting to couple cars, no one being present or knowing how the accident occurréd, in a suit by his personal representative to recover damages of the railway company, evidence of his prior habits a's to care, prudence and sobriety is admissible, as tending to prove that the deceased was prudent, cautious and sober at the time of the injury. But if there were witnesses who saw the transaction, and can describe how the accident took place, such evidence would not be admissible.
    2. Same—habits of-other persons on question of care. In an action by an administratrix to recover for causing the death of her intestate by negligence while engaged in coupling cars, evidence of the usual mode of coupling and uncoupling cars at the same place by others is inadmissible." What others did, or were in the habit of doing, does not tend to prove the issue as to due care by the deceased.

      3. Same—practice—when admissible for one purpose but not for others. If evidence is admissible for any purpose it must be received, and the party against whom it is admitted, if it tends to mislead on some other question, is entitled to have it limited by instruction to the purpose for which it is admissible.
    4. Master and servant—railroad not bound to inform servant of danger in the service. The law does not impose on a' master the duty of informing his servants of all dangers in and about the premises where they are required by his authority to perform labor. A railway employe is presumed to understand the nature and dangers of his employment when he engages in the service, and to assume all the ordinary hazards of the service.
    5. Same—master must know of danger before he is required to inform servant. In an action by a servant to recover damages from his master on the ground of negligence, the servant is not entitled to recover because the service required at a particular place was dangerous, and the master failed to inform the servant of that fact, in consequence of which he was injured, when it does not appear from the evidence that such place was, in fact, more dangerous than other places, or that the master knew that it was dangerous.
    6. Negligence—not learning that service at a place is dangerous. An instruction on a question of comparative negligence asserted, that if the defendant’s railroad track and platform are dangerous, and the defendant, by reasonable cax-e, could have learned the fact, and the person injui'ed could not, by reasonable care, have learned they were dangerous, and that the injury was caused thereby, the defendant was liable: Held, that the same was flatly contradictory, and calculated to confuse and mislead. If reasonable care would have disclosed the fact of danger to one party, it would have done so equally to the other.
    7. Same—comparative—instruction not stating rule accurately. Where an instruction speaks of negligence and also gross negligence of the defendant, and then refers to slight negligence of the person injured as compared with the defendant’s negligence, it is too loose and inaccurate in not stating definitely which degree of negligence of the defendant the jury should compare with the injured party’s negligence.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Peoria county; the Hon. N. M. Laws, Judge, presiding.
    Mr. J. G. Hutchins, Mr. Thomas F. Withrow, • and Mr. H. W. Wells, for the appellant:
    The court erred in allowing the witnesses to testify as to the habits of the deceased as to care, caution and sobriety. Plaintiff should only have been permitted to prove such facts as would justify” a reasonable inference that at the time deceased exercised ordinary care. Chicago, Burlington and Quincy R. R. Co. v. Lee, 60 Ill. 501; Tenny v. Tuttle, 1 Allen, 185; Davis v. Oregon and C. R. R. Co. id. 187.
    The court also erred in permitting the plaintiff to prove that there was „ a general custom among railroad men to couple and uncouple cars on the inside of curves. Berg v. Chicago, Milwaukee and St. Paul R. R. Co. 50 Wis. 419; Kroyes v. Chicago, Rock Island and Pacific R. R. Co. 32 Iowa, 363; Ferguson v. Central Ry. Co. 12 N. W. Rep. 293; Ormund v. Central Iowa Ry. Co. 13 id. 54; Hamilton v. Des Moines Valley R. R. Co. 36 Iowa, 38.
    The admission of this evidence was error, because it justified a man in performing an unsafe and dangerous duty where there was room enough to perform it elsewhere with safety. Chicago and Northwestern R. R. Co. v. Donahue, 75 Ill. 106; Fosters. Chicago and Alton R. R. Co. 84 id. 164; Pennsylvania Coal Co. v. Conlan, 101 id. 93.
    The plaintiff’s first instruction declares that the master is bound to advise his employés or servants of any and all danger in and about the premises where they are required to work, and that he is liable if he does not do so. This is not the law. The rule is, that an employé assumes, and is presumed to know, the ordinary hazards of his employment. Indianapolis, Bloomington and Western R. R. Co. v. Flanigan, 77 Ill. 370; Schadewald v. Milwaukee, L. S. and W. Ry. Co. 13 N. W. Rep. 460; Honner v. Illinois Central R. R. Co. 15 Ill. 550; Illinois Central R. R. Co. v. Cox, 21 id. 20; Toledo, Wabash and Western Ry. Co. v. Durkin, 76 id. 395; Lake Shore and Michigan Southern R. R. Co. v. McCormick, 74 Ind. 440; Toledo, Wabash and Western Ry. Co. v. Black, 88 Ill. 112; Richardson v. Cooper, id. 323; Baylor v. Del., Lack. and W. R. R. Co. 11 Vroom, 23.

      Mr. George A. Wilson, for the appellee: '
    The failure of appellant to either increase the distance between the cars and platform, so that its employés can dis- . charge their duties with reasonable’ safety, or to lessen the intervening space, so that its employés can stand upon the platform and discharge their duties, unquestionably convicts appellant of gross negligence. Besides, the curve there was so great that the employés were compelled to couple and uncouple ears on the inside of the curve. As to negligence in this respect, see Illinois Central R. R. Co. v. Walsh, 51 Ill. 183; Chicago and Alton R. R. Co. v. Wilson, 63 id. 167; Chicago, Burlington and Quincy R. R. Co. v. Gregory, 58 id. 272; Chicago and Iowa R. R. Co. v. Russell, 91 id. 298; Chicago and Alton R. R. Co. v. Pondrom, 51 id. 333.
    All the proof showed that the deceased was’ a temperate, steady, careful and prudent man. He discharged his duties well, and no complaint was ever made to the contrary.
   Mr. Justice Walker

delivered the opinion of the Court:

Appellee brought this action in the circuit court of Peoria county, against appellant, to recover for the death of her husband, J. H. Clark, averred to have been caused by negligence of the railroad company. It appears that deceased was a brakeman in the employment of appellant; that at Davidson’s quarry, near the city of Joliet, he was injured in attempting to couple cars at a side-track and platform for loading cars with stone; that in coupling them he got between the platform and*cars, and his lantern, from some cause, got’ between him and the cars, and it was so pressed against him that he received internal injuries, from which he died. The negligence averred is, that the track was constructed too near or close to the platform; that-the distance between the cars, when on the track, and the- platform, did not exceed ten anches; that on the second day of July, 1879, in the night, Clark, in the line of his duty,' exercising due care, was engaged in coupling a car loaded with stone, and the defendant’s servants in charge of the train handled it so negligently, together with the improper location and construction of the platform, that the train struck Clark with great force, and he was thereby killed. It is averred that deceased did not know of the dangerous character of the place, and was ignorant of the distance or space between the platform and cars, but the defendant knew it was dangerous, but failed to notify deceased of the fact. On a trial in the circuit court, plaintiff recovered a judgment. Defendant appealed to the Appellate Court for the Second District, where the judgment was affirmed, and defendant appeals to this court.

It is first insisted that the circuit court erred in admitting evidence of the habits of deceased as to care, prudence and sobriety. Appellee, in her declaration, averred, as she was required to do, that deceased was in the exercise of due care at the time he sustained the injury of which he died, and as no person was present, or knew how the accident occurred, we think this evidence tended to prove that averment. If he was habitually prudent, cautious and temperate, it tended to prove he was so at the time of the injury, which, with the instinct of self-preservation, would be evidence for the consideration of the jury in determining whether he was in the exercise of care. Had there been witnesses who saw the infliction of the injury, the -jury could then have determined from such evidence whether he was careful or negligent, and in such a case this evidence would not be admissible. When there are no witnesses to describe such an occurrence, the defendant would surely have the right to prove the person was habitually rash, imprudent and intemperate, to repel the presumption that he was in the exercise of proper care at the time he received the injury. If evidence is admissible for any purpose, it must be received, and the party against whom it is admitted, if it tends to mislead on. some other question, is entitled to have it limited, by instruction, -to the purpose for which it is admissible.

It is next urged that the trial court erred in admitting evidence as to the usual mode of coupling and uncoupling cars at that switch. One of the issues being tried was, whether deceased performed his duty with such negligence as to preclude a recovery. He was bound to use care, or no recovery can be had, and what others did or were in the habit of doing did not tend to prove that issue. Such a course may have been careless, or even reckless, and if so, it did not justify him in omitting the observance of care. We therefore think that such evidence did not tend to prove care on the part of deceased, and the court erred in its admission.

It is claimed the first instruction is erroneous. It, among other things, informs the jury that it is the duty of the master ■to inform his servants of all danger in and about the premises where they are required, by his authority, to perform labor. This was manifestly wrong. Railroad employés, as all the books lay down the doctrine, assume the ordinary risks and hazards of the employment. The presumption is that the employe understands the nature and dangers of the employment when he engages in the service, and if not, that he will inform himself. It would be wholly impracticable for railroads and manufacturers to employ men of experience to inform each of the hands that any particular act he is required to perform is dangerous. It would be ruinous to such bodies to hire a person to accompany every brakeman and other employés, to inform them of danger in the performance of every act of duty, or of the danger in the manner of its performance. It is impossible that the law can ever impose such requirements, — and that is what this instruction in substance asserts as a legal requirement.

The instruction further informs the jury, that if the employer knows of such danger, and the employés do not, and are unable to learn the danger by reasonable care and diligenee, and the employer fails to advise the employes of the danger, he is in such case liable for any injury they sustain ; and if the jury believe, in this case, that the stone platform was dangerous, and the defendant failed to advise deceased thereof, and the deceased did not know of such danger, and could not have learned it by the use of reasonable care, and he was thereby injured, from which he died, then the jury should find the defendant guilty. This branch of the instruction is erroneous, and misstates the law. Moreover, there is no evidence tending to prove the company had any notice that the platform was dangerous. On the contrary, it had been used for fourteen years in the same condition it was then in, and many thousand cars had been coupled and uncoupled at that place, and on the same side of the track where deceased was injured, and this was the first accident of the kind that had ever occurred on that switch. But the instruction announces that appellant was liable whether the company knew or not that it was dangerous. It informs the jury that if it w.as dangerous they should find appellant guilty. • This instruction was highly calculated to mislead the jury, and should not have been given.

The fourth of appellee’s instructions is flatly contradictory, and calculated to confuse and mislead. It asserts that if the track and platform were dangerous, and the company, by reasonable care, could have learned the fact, and deceased was without knowledge, and could not, by reasonable care, have learned it was dangerous, and deceased received his injury thereby, they.should find the defendant guilty. If deceased could not learn that the place was dangerous by reasonable care, how can appellant be held liable because it did not learn the fact? Reasonable care only could, when exercised by the company, reach the same results that would be attained by the use of the same care used by deceased. If his care and diligence could not learn that it was dangerous, it is unreasonable to hold appellant liable, when, by the use of the same care, it could not learn, there was danger.

The seventh of appellee’s instructions is loosely drawn, and is - not accurate in its statement of the law. It first asserts that if appellant was guilty of negligence, as averred in the declaration, and if deceased was guilty of negligence, (if they found from the evidence that appellant was guilty of gross negligence,) then it can not relieve itself from liability by showing that deceased was also guilty of negligence, if his negligence was slight as compared with that of appellant. The instruction speaks of negligence, and also of gross negligence, of appellant, and then refers to slight. negligence of deceased as compared with appellant’s negligence. Which degree of negligence of appellant are the jury to compare with negligence of deceased? But above and beyond this,there was no evidence tending to show, gross negligence of appellant. There was therefore.no evidence upon which to base the instruction. It was therefore error to give it.

For the errors indicated the judgment of the Appellate Court is reversed, and the cause remanded.

Jiidgment reversed.


author: Mr. Justice Mulkey

text:
    John P. Spitler v. Tamson E. Spitler.

      Filed at Ottawa November 20, 1883.
    1. kmiiO'mc—founded'on husband’s duty to support wife:' The right of a wife to permanent alimony under the general law, aside from tbe statute, is, founded on the duty of the husband to support her, so that wben the latter duty ceases the right to alimony also ceases. ' Hence it is generally held, in .the absence of statutory provision, that when the husband obtains a divorce • for-the wife’s misconduct, she will not be. entitled-to. alimony. ¿

      2. Same—duty of husband to support his wife. The common law duty of a husband to support his wife is not absolute. He is bound to support her at their common home, and not under another’s roof, unless his improper conduct has forced her to seek shelter elsewhere. If she abandons her home without just cause, the right to support from her husband at once ceases.
    3. Same—under the statute—extent of the wife’s right to alimony. A decree of divorce against a wife for her misconduct, under our statute does not necessarily deprive her of the right to alimony in all cases, as it would but for the statute. But on the other hand, it does not follow that the divorced wife would be entitled to alimony when her conduct has been grossly improper, and its allowance is not required for the support of their common offspring.
    4. It was not the object of the legislature in adopting the provision of the statute relating to alimony, (Rev. Stat. 1874, chap. 10, sec. 18,) to abrogate the general principles or policy of the law relating to such subject, but rather to clothe the court with power to mitigate occasional hardships that might otherwise occur.
    5. Same—in the particular case. Where a husband obtained a decree of divorce against his wife for desertion and adultery, and it appeared that on the marriage she 'brought no means with her; that her husband had always been a good provider, and reasonably kind and indulgent under the circumstances; that their children, living, were all grown and married, and that some four or five years before the filing of the bill, she, without any cause, excuse or justification whatever, deliberately abandoned her husband and home, for the sole purpose of improving her opportunities of carrying on criminal relations with her paramour, it was held, that the wife was not entitled to any allowance for alimony.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Stephenson county; the Hon. William Brown, Judge, presiding.
    Mr. James I. Here, and Mr. J. H. Stearns, for the appellant :
    By our statute the allowance of alimony on divorce is made discretionary with the court. (Rev. Stat. 1874, p. 421, sec. 18.) But this is a judicial discretion, subject to review in-an appellate court, so that justice may be done. Stillman v. Stillman, 99 Ill. 197.

      The conduct of the parties, including the degree of merit on the one side and censure on the other, may he considered independent of the pecuniary circumstances of the parties. Stewartson v. Stewartson, 15 Ill. 145.
    The subsequent marriage of a woman after divorce terminates her right to alimony, or its continuance. (Stillman v. Stillman, 99 Ill. 197.) And can it be said that a legitimate marriage should be visited with a penalty from which illicit concubinage is free ? A woman can not claim the advantages of a contract that she utterly repudiates.
    Formerly, one ground of alimony was the fact that the wife had brought property to her husband. By our present law the wife retains her separate property, but in this case there is no proof that appellee ever had any property or estate of her own.
    If she was never the meritorious cause of the accumulation of this property, but on the contrary has been the means of wasting and diminishing it, and has, by her misconduct, forfeited her claim upon appellant for support, she has no equitable ground upon which to claim alimony as a right. Shafer v. Shafer, 10 Neb. 468.
    Mr. John C. Kean, for the appellee:
    Under our statute, (Rev. Stat. 1874, p. 421, sec. 18,) as construed by the courts, a divorced wife may have alimony decreed her, although the divorce was for her misconduct. Reavis v. Reavis, 1 Scam. 242; Deenis v. Deenis, 79 Ill. 74; Coon v. Coon, 26 Ind. 189.
    The court below was vested with a sound judicial discretion, to enable it to do what to it seemed just and equitable, and the exercise of that discretion ought not to be interfered with except for some cogent reason. Besides, the verdict of the jury as to adultery was found entirely on circumstantial ' evidence. There is no proof of a single overt act of adultery.

      Taking into account the value of the property owned and enjoyed by appellant, and the age of appellee,—forty-eight years,—that she is now without any means of support except her daily labor, and, also, that her labor and frugality have largely contributed to the acquisition of the property now owned by appellant, I think, the order of the Appellate Court should be affirmed.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The appellee, Tamson E. Spitler, filed in the Stephenson circuit court a bill for divorce against her husband, the appellant, charging him with extreme and repeated cruelty. The latter answered, denying the charge, and also filed a cross-bill, charging her with adultery, and willful desertion for the space of two years. The issues were made up on the bill and cross-bill, and the cause was heard before the court and a jury, resulting in a verdict in favor of the appellant upon all the issues, and the court thereupon granted him a divorce upon the ground of appellee’s desertion and adultery, as found by the verdict,—and the decree to this extent is not questioned by either party on this appeal. Upon the entry of the decree appellee filed a petition for permanent alimony, the hearing of which was reserved to a subsequent day. On the hearing of the petition the court entered an order requiring the appellant to pay appellee, as alimony, $100 per annum until the further order of the court. The husband appealed from this order to the Appellate Court for the Second District, where the same was affirmed, and he brings the case here for review.

The appellee is now about forty-eight years of age, and the appellant fifty-seven. They were married the 31st of December, 1850, and have had altogether seven children, four of whom are dead, and the remaining three are grown and married. Appellee had neither money nor property at the time of their marriage, and appellant’s effects amounted to only some $300 or $400, and he is now worth about $12,000 or $13,000. The evidence shows he has always been an industrious, hard-working- man, a good and liberal provider in his family, and, under the circumstances, reasonably kind and indulgent to his wife and children. The weight of evidence also shows that until the rupture between her and her husband, occasioned by her indiscreet conduct and questionable relations with other men, appellee was a good housekeeper, and faithfully discharged her household duties. Some five years ago, however,'she left her home, without £iny sufficient cause or justification, and established her residence in the house of one Noah D. Peck; between whom and herself' there were good reasons to believe criminal relations had existed for a long time. This opinion was not confined to her husband, but seems to have been shared by their neighbors generally.

' As the right to permanent alimony, so far as it depends on general law, is founded upon the duty of the husband to support the wife, it therefore legally, as well as logically, follows, that when this duty ceases the right also ceases. Hence it is generally held, in the absence of statutory provisions controlling the question, when the husband obtains a divorce on account of the' misconduct of the wife, the latter will not be entitled to alimony. (2 Bishop on Marriage and Divorce, (4th ed.) secs. 376, 377.) Looking at the question on principle, the rule is certainly in harmony with other general rules governing the marital relation, as, for instance, the common laiv duty of the husband to support the wife is not absolute. He is bound to support her at their common home, and not undef another’s roof, unless his own improper conduct has forced her to seek shelter elsewhere. Hence if' she abandons her home without cause, the right to support from her husband at once ceases. If, then, while the marital relation still exists,' the husband is under no obligations to support -the wife when she is without cause living apart from him, and particularly when living in criminal relations with another, a fortiori he will not be liable for her support after he has obtained a divorce from her on account of her desertion and adultery.

But a number of States of the Union, including our own, have passed statutes somewhat modifying the common law doctrine on the subject of alimony. Our statute relating to this subject provides as follows: “'When a divorce shall be decreed, the court may make such order touching the alimony and maintenance of' the wife, the care, custody and support of the children, • or any of them, as from the circumstances of the parties and the nature of the case shall be fit, reasonable and just,” etc. (Rev. Stat. 1874, page 421.) This provision of the statute first came under consideration in Reavis v. Reavis, 1 Scam. 242, and the construction then given to it was followed in Deenis v. Deenis, 79 Ill. 75. These are the only cases to which our attention has been called, or that now recur to us, in which the construction of the statute has been directly presented for consideration. These cases, in their circumstances and legal aspects, are essentially alike. The husband in each case filed the bill against the wife, charging her with desertion, which was admitted by her answer, but sought to be justified on the ground of the husband’s misconduct. The alleged justification was not, in the judgment of the court, sustained by the proofs, and a decree granting the husband a divorce, the care and custody of the children, or a part'of'them, to the wife, and requiring him to pay her a certain amount of alimony for the support of herself and the children, was rendered in each case, and on appeal to this court both of these decrees were affirmed. The construction given to the statute in these cases establishes the proposition that the fact of granting the husband a divorce on account of the misconduct of the wife, will not of itself necessarily deprive the wife of alimony in all cases, as it would but for the operation of the statute. On the other hand, because alimony may, under special circumstances, be decreed to the wife where the divorce has been granted to the husband for her misconduct, it does not follow that such an order would be warranted where the conduct of the wife, as in the present case, has been grossly improper, and the allowance of alimony is not required for the support of their common offspring, as it was in those cases.

It was manifestly not the object of the legislature in adopting the provisions of the statute above cited, to abrogate the general principles or policy of the law relating to the subject of alimony, but rather to clothe the courts with power to mitigate occasional hardships that would otherwise occur on account of the inflexible rule that the wife is not entitled to alimony where the divorce is granted to the husband oh account of her own misconduct. This modification of the general rule on the subject was intended to meet cases of hardship, and afford relief to the erring wife when demanded by mitigating circumstances, or the interest of such of the children as might, for prudential reasons, be committed to her custody for sujiport or education. But we see nothing of the kind in this case. Some four or five years before the filing of the bill, without any cause, excuse or justification whatever, appellee deliberately abandoned husband, home, and all that home means, for the purpose—and sole purpose, so far as we can see,—of improving her opportunities to carry on criminal relations with her paramour.

To the suggestion appellee for many years faithfully discharged her duties as a wife, and thereby materially aided appellant in accumulating his present property, and should therefore have a part allowed to her, it is a sufficient answer, under the circumstances of this case, to say, that by the law as it existed at the time of their marriage, and as it continued to be many years thereafter, her time, services and accumulations after such marriage became absolutely his. As a compensation for this, the same law compelled him to furnish her with a home and provide for all her reasonable wants, according to his means and station in life, and if he neglected to do this, others were authorized to supply such wants and compel him to pay the bills. However great may have been his fortune, she was entitled to share it equally with him, so far as her present personal needs were concerned. If she survived him, she became entitled to her dower in his lands and her award as widow in his personal estate, and it was not in his power to deprive her of these rights without her consent. So far as this record shows, the appellant faithfully discharged the obligations he assumed, and if she is not now enjoying all the law secured to her, it is her own fault and folly,—not her husband’s,—and she must submit to the consequences thus voluntarily brought upon herself, however grievous they may be.

We are clearly of opinion that to award alimony to the wife where the cause of divorce shows such a degree of moral turpitude and, flagrant disregard of marital obligations on her part as is disclosed by the evidence in this case, is an abuse of the discretion with which the statute has clothed the courts in awarding alimony, and for this reason the judgment of the Appellate Court must be reversed, and the cause remanded to that court with directions to reverse the order of the circuit court awarding alimony, and dismiss the petition.

Judgment reversed.


text:
    Julius Rosenthal, Public Administrator, v. Eugene E. Prussing, Admr.

      Filed at Ottawa November 20, 1883.

      Administbation—of non-resident estates—creditor living in State preferred over public administrator. On the death of a non-resident intestate leaving real or personal property in this State, a creditor of the estate living in this State is entitled to preference over the public administrator in the grant of letters of administration upon such estate.
    - Appeal from the Appellate Court for the First District;—5 heard in that court on appeal from the Circuit Court of Cook county; the Hon. Mubeay F. Tuley, Judge, presiding.
    Mr. A. M. Pence, for the appellant.
    ' Mr. Eugene E. Peussing, pro se.

   Mr. Chief Justice Sheldon

delivered the opinion of the Court: ■

On June 5, 1883, Julius Rosenthal, public administrator for Cook county, made application for letters of administration upon the estate of Dorothea Grumme, deceased. ‘ On-June 8, 1883, Prussing, as creditor, made application for letters upon the same estate. Both petitions came on for hearing at the same time, and both allege that Dorothea Grumme died intestate in June, 1882; that she was a nonresident at the time of her decease, and left personal estate in Cook county of the value of $1000.82; that she left no husband, and that all her heirs and next of kin reside in Hanover, Germany, and that she left no heir or next of kin residing in the State of Illinois. In their petitions Rosenthal alleges that he was public administrator for Cook county, and Prussing alleges that he was a creditor of the estate, and resided in Cook county, Illinois. The probate court, in its order, found the facts to be as stated in both petitions, and dismissed Bosenthal’s petition, and granted ■ letters of administration to Prussing. On appeals to the circuit court of Cook county, and to the Appellate Court for the First District, the order of the probate court was affirmed, and Bosenthal appealed to this court.

The point in controversy is, whether, by virtue of his office, the public administrator is entitled to administer in all cases where the deceased was a non-resident. Appellee claims that if such'non-resident leaves a resident creditor, then the public administrator is not entitled to letters of administration.

Section 18 of the chapter on “Administration of Estates, ” (Rev. Stat. 1874, p. 107,) reads as follows: “Administration shall be granted to the husband upon the goods and chattels of his wife, and to the widow or next of kin to the intestate, or some of them, if they will accept the same and are not disqualified, but in all cases the widow shall have the preference; and if no widow or other relative of the intestate applies within sixty days from the death of the intestate, the county court may grant administration to any creditor who shall apply for the same.- If no creditor applies within fifteen days next after the lapse of sixty days, as aforesaid, administration may be granted to any person whom the county court may think will best manage the estate. In all cases where the intestate is a non-resident, or without a widow, next of kin, or creditors in this State, but leaves property within the State, administration shall be granted to the public administrators of the proper county, ” etc. The literal reading of the third sentence of this section is certainly with the appellant, that “in all cases where the intestate is a nonresident, ” administration shall be granted to the public administrator. Whether this be the true reading requires us to look further. The preceding portion of the section provides for a clear preference in administration: First, the husband or widow; second, the next of kin; third, creditors, and then, afterwards, such person as the county court' thinks best.

The 48th section of the chapter provides: '“'Whenever administration is granted to any public administrator, and it shall afterwards appear that there is a widow or next of kin, or creditor of the deceased entitled to the preference of administration by this act, it shall be the duty of the county court to revoke the letters granted to’ such public administrator, and to grant the same to such widow, next of kin,' or creditor, as is entitled thereto, ” etc. The idea of this section would seem to be that the next of kin and creditors are entitled to the preference of administration over the public administrator, although appellant’s counsel says it means only the limited preference which exists in cases of a resident intestate, and consists with there being no such preference in case of non-resident intestates.

The 46th section provides that whenever any person dies seized or possessed of any real estate within this State, and has no relative or creditor within the State who will administer, the administration, shall be committed to the public administrator. Here, certainly, there is the preference of the relative.and creditor over the public administrator, without any limitation whatever. To be sure it is in the case of real estate, but we see no reason for any difference between the two cases of real and personal estate,—why there should not be the same general preference of next, of kin and creditors in the case of personal estate as well as in the case of real estate,—and we think this section aids in support of the prevailing idea of the statute, as a whole, of an entire preference of the next of kin and creditors in the administration, without restriction to resident intestates. Section 50 provides for the public administrator taking steps to protect and secure the effects of one dying intestate, from waste or embezzlement; but it is limited to the case of the intestate not leaving a widow or next of kin, or a creditor, within the State.

We may derive some aid in the interpretation by looking at the statute as it stood at the time of the revision in 1874. Parts of the chapter on “Wills, ” in the Eevised Statutes of 1845, were used in making up the chapter on “Administration of Estates” in the Eevised Statutes of 1874, and section 18 of the latter, above quoted, was known as section 55 of the former, and was a part of the original act of 1829, and the two sections are the same. For the sake of comparison at this place we reproduce the clause in question as it was in said section 55:

“In all cases where the intestate is a non-resident, or without a widow, next of kin, or creditors in this State, but leaves property within the State, administration shall be granted to the public administrators of the proper county, ” etc.

Section 57 of that same chapter on “Wills” was as follows :

“Sec. 57. Whenever any person shall die intestate in any county in this State, or when any non-resident shall die intestate, leaving goods and chattels, rights and credits, or either, in this State, and no widow or next of kin, or creditor or creditors, shall be living within this State, administration of the goods and chattels, rights and credits of such intestate shall be granted to the public administrator, ” etc.

It will be seen that said sections 55 and 57 of the chapter on “Wills” were in direct conflict with each other upon the point in this case, because of the use of the word “or ” in the former, and the word “and” in the latter. The former says, where the intestate is a non-resident, or without a widow, next of kin, or creditors in this State,—that is, all non-resident intestates. The latter says, when any non-resident shall die intestate, and no widow or next of kin, or creditor or creditors, shall be living within this State,—that is, only such non-resident intestates as shall be without widow or next of kin, or creditors living within the State. Comparing these sections 55 and 57 in the chapter.of “Wills” together, it is plain that statute did not, in all cases where the intestate was a non-resident, give the administration to the public administrator, but in such cases only where the non-resident intestate was without a widow or next of kin, - or creditor or creditors living in this State. It thence appears that the word “or,” above, in said section 55, in the chapter on “Wills,’’was a mistake, and should have been “ancl.” In transcribing said section 55 into the Revised Statutes of 1874, and making it section 18 in the chapter on the “Administration of Estates,” the word “or” was retained, when, if the section had been copied, not in its literal reading, but in its true meaning, the word “and” would have been used in the place of the word “or,” and then this section 18 in the Revised Statutes would, in its literal reading, have preferred, in the administration, the next of kin or the creditor in this State of a non-resident intestate over the public administrator, as did section 55 of the former statute, according to its true meaning. We see no reason for making any change in the statutes in this particular respect, and can not think that any was intended. If the principle is to obtain. at all of giving to the next of kin and creditors living -in this State a preference over the public administrator in administering, we do not perceive why it should not be given to them as well in the case of a non-resident as of a resident intestate. Said section 57 of the old chapter of “Wills ” is dropped from the Revised Statutes of 1874, perhaps from its being considered but a repetition of what section 18 contains.

Sections 46 and 48, above referred to, of the present chapter on “Administration of Estates, ” relating to real estate, and providing for the revocation of the letters granted to 'public administrators, are reenactments of sections 58 and 59 of the old chapter on “Wills,” so that those sections were present in the former statute to strengthen its idea of preference of next of kin and creditors living in this State over the public administrator, in the granting of letters of administration.

We are of opinion that the probate court here, in granting letters of administration on the estate of the non-resident intestate, rightly gave the preference to the creditor living in this State over the public administrator; that it was the intention of the statute to allow such preference, as derived-from taking the whole statute together, and from a comparison of its provisions with those of the former statute upon the subject, and of which it is a revision.

The judgment of the Appellate Court must be affirmed.

Judgment affirmed.

Walker and Scott, JJ.: We do not concur in this opinion.