text:
    John M. Ewen v. Albert G. Wilbor, Jr.
    1. Guaranty— Measure of Proof — Prima Facie Case. — Where an action is brought on a guaranty indorsed upon a promissory note, the production of the note with the signature of the guarantor upon it, makes a prima facie case.
    2. Same — Legal Proceedings Not Necessary to Fix the Liability of the Guarantor. — Legal proceedings are not necessary to fix the liability of a guarantor, nor is it necessary to prove a demand upon the maker or notice to the guarantor of the non-payment, or to use diligence against the maker.
    3. Promissory Notes — Who is the Holder or Proper Person to Malee a Presentation for Payment. — The holder of a promissory note or his authorized agent, is the proper person to make the présentation for payment: and any person who is in possession of the note under a blank indorsement, or with an indorsement to himself, will be deemed the holder for this purpose although he may be in fact only the agent of the real owner, for under such circumstances, as between himself and the owner, he is at liberty to treat the possession of the note as being in him under a legal title, as trustee of the owner, and is entitled to receive the payment upon it.
    4. Same— Where the Demand for Payment is to be Made. — Where a promissory note is made payable at a particular place, it will be sufficient for the holder to present it at such place for payment, and in case of its dishonor at such place, he is under no obligation to present it fox-payment elsewhere, or to present it personally to the maker.

      5. Same — Effect of Making a Note Payable at a Particular Place.— By making a promissory note payable at a particular place, the maker impliedly dispenses with the necessity of making any demand upon the holder, either personally or elsewhere, and the indorsers, equally with him, in such a case, impliedly agree that a presentment at the place shall be sufficient to bind all the parties.
    6. Set-off — Must be Acquired Before the Commencement of the Suit. —The defendant in a suit can not set off a demand against the plaintiff's cause of action, acquired by him after the commencement of the suit.
    7. Surety — Construction of the Contract of. — While the contract of a surety is to be strictly construed, and will not be extended by implication, courts in endeavoring to ascertain the precise contract which a surety has made, may resort to the same aids and invoke the same canons of interpretation which apply to other contracts, and when the true intent and meaning of the contract entered into by the surety is ascertained, effect will be given to it.
    Assumpsit, on a contract of guaranty. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed December 24, 1901.
    This was an action brought upon a guaranty of a promissory note. On the trial it appeared that on the 15th dav of November, A. D. 1892, Warren Ewen, Jr., party of the first part, and Albert G. Wilbor, Jr., party of the second part thereto, entered into an agreement, under seal, containing, among other things, the following recitals and provisions :

      “ Second. The said party of the second part has, upon the ensealing and delivery of these presents, deposited with the said party of the first part, as a special deposit and earnest of good faith herein, the sum of twelve hundred and fifty ($1,250) dollars, the receipt of which is hereby acknowledged by said first party.
    “ Said sum of twelve hundred and fifty ($1,250) dollars shall be held by said party of the first part as a special deposit; but it shall immediately, upon the receipt by said second party of a duly executed agreement or contract between the United States Government and the parties hereto providing for the adoption for general use in government work of any of said processes, become the property of the said party of the first part to compensate him in full for his services and the sale to the said party of the second part of said one-half interest in said contract or agreement and in all such other contracts, agreements or arrangements as shall hereafter be made with the United States Government respecting the use of said processes or any of them, as above mentioned.
    “ Provided, however, that unless said contract or agreement with the said government is consummated on or before May 15, A. D. 1893, said sum of twelve hundred and fifty ($1,250) dollars shall, at the option of said party of the second part, be then returned by said first party to said second party, and then and in that case this agreement shall be ended and from thenceforth absolutely null and void. Should said second party, however, not elect to have said sum of twelve hundred and fifty ($1,250) dollars returned to him, as aforesaid, it .shall continue to be held by said first party as such special deposit, aforesaid, until said government contract or agreement shall be made or until demanded by said party of the second part, when it shall be at once due and payable to him.
    “ In order to better secure the repayment of said sum of twelve hundred and fifty ($1,250) dollars, in the event that repayment thereof should be demanded, the said party of the first part has made, executed and delivered his note of hand for said sum, of even date herewith, payable on demand after six months after date, to the order of said party of the second part, at the office of said first party, Chicago, Illinois, and has procured said obligation to be guaranteed by John H. Ewen, of Chicago, Illinois.

      “ Warren Ewen, Jr., ' [Seal.]
    “ Albert G. Wilbor, Jr. [Seal.] ”
    Whereupon, upon said date, a note in all respects, save the date, like the one upon the guaranty of which this suit was brought, was made, signed by Warren Ewen, Jr., and guaranteed by John M. Ewen, appellant. Warren Ewen, Jr., the party of the first part to this contract, not having succeeded in obtaining the agreement with the United States Government mentioned in the above contract, May 15, 1893, the note he had given and appellant had indorsed became due on demand, but not being paid, June 7, 1893, he gave in place thereof the note upon the guaranty of which this action was brought, which note is as follows:
    “ $1,250.00. Chicago, June 7, 1893.
    On demand after six months afterdate, I promise to pay to the order of Albert G. Wilbor, Jr., twelve hundred and fifty and 00-100 dollars, at my office, Chicago, Ills. Value received.
    Warren Ewen, Jr.”
    Appellant guaranteed above described note by signing his name in blank across the back. December 9, 1893, more than six months after the date of the note last mentioned, demand of payment of the same was made upon Warren Ewen, Jr., the maker, as set forth in the certificate of the notary who made the demand, which certificate is as follows:
    “ State of Illinois, County of Cook, City of Chicago, ss. Be it known' that on the ninth day of December, in the year of our Lord, 1893, Isaac W. Brown, a notary public, duly commissioned and sworn, and residing in the city of Chicago, in Cook county, and State of Illinois, at the request of the Merchants’ Loan & Trust Company, went wit!) the original note which is above attached, to the office of Warren Ewen, Jr., in the city of Chicago, during ordinary business hours, and demanded payment thereon, which was refused. Whereupon I, the said notary, at the request aforesaid, did protest, and by these presents do solemnly protest as well against the maker of said note, the indorsers thereof, as all others whom it may or doth concern, for exchange, re-exchange, and all costs, charges, damages and interest already incurred by reason of the non-payment of the said note. And I, the said notary, do hereby certify that within forty-eight hours from the time of such protest, due notice thereof was put in the post-office at Chicago, as follows: Notice for Warren Ewen, Jr., Chicago, Illinois, for John M. Ewen, Chicago, Ill., for A. G-. Wilbor, Jr., Brookline, Mass., each of-the ábove named places being the reputed places of residence of the person to whom'this notice was directed. In testimony whereof, I have hereunto set my hand and affixed my official seal, the day and year first above written.
    (Seal) - I. W. Brown, Notary Public.”
    March 9, 1894, the note not having been paid, appellee began this action against appellant as guarantor.
    Appellant urges that the obligation of the obligor or surety is strictissimi juris; that to the extent and in the manner and under the circumstances pointed out in his contract he is bound and no further; that his liability can not be extended by implication or construction; and further says that the rule controlling the obligation of the guarantor “ is the principle Shakespeare had in mind when he Avrote The Merchant of Venice, and put into the mouth of Portia the famous judgment that made waste paper of Shylock’s bond.”
    Henry M. Bacon and Henry Schofield, attorneys for appellant.
    Charles M. Walker and Charles M. Sherman, attorneys for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

While it is true that the obligation of the guarantor can not be extended by implication or construction, and is limited strictly to the contract he has made, we do not understand that the rule is, as appellant declares, “ ivhat Shakespeare had in mind Avhen he wrote The Merchant of Venice.” The judgment of Portia did anything but “ make waste paper of Shylock’s bond.” On the contrary it converted it into an instrument by Avhich the hapless Jew was robbed of all he had; nor have Ave understood that Portia’s judgment was or is law in this or any other country.

The action in the present case is upon the guaranty, and the production of the note Avith the signature of appellant upon its back made a prima facie case against him. Legal proceedings are not necessary to fix the liability of a guarantor, nor is it necessary to prove demand upon the maker, or notice to the guarantor of non-payment, or to use diligence against the maker. Heaton v. Hulbert, 3 Scammon, 489; Parkhurst v. Vail, Adm’r, 73 Ill. 343; Stowell v. Raymond, 83 Ill. 120; Everhardt v. Page, 89 Ill. 550-554; Wallace v. Goold, 91 Ill. 15-20.

The burden of proof thus being thrown upon appellant, he introduced the contract of November 13, 1892, and under it insists that an actual, by Avhich we understand is meant a personal demand upon Warren Ewen, Jr., the maker of the note, was necessary as condition precedent to a right of action against John M. Ewen, the guarantor. The notary’s certificate was evidence that the demand described therein was made by him. (Montelius v. Charles, 76 Ill. 303.) The note, it appears, had been placed in the hands of a bank for collection. This not only authorized, but perhaps required the bank to make demand of payment. The fact that the notary in his certificate states that he made the demand at the request of the bank is immaterial. It doubtless was true, as a matter of fact, the bank, in endeavoring to collect the note, was acting as agent of the owner thereof, and the notary was a servant of the bank. Appellee guaranteed the note by writing his name across the back, and when presented for payment it bore the blank indorsement of the payee. It is said in Story on Bills of Exchange (Sec. 360):

“The holder himself, or his authorized agent, is the proper person to make the presentment for payment; and any person who is in possession of the bill under a blank indorsement, or with an indorsement to himself, will be deemed a holder for this purpose, although he may, in fact, be only the agent of the real owner; for the agent, under such circumstances, is, between himself and the acceptor, at liberty to treat the possession of the bill as being in him, under a legal litle, as trustee of the owner, and therefore he is entitled to receive payment.”

In section 234 of Story on Promissory Motes the author says:

“From what has been already said, it may be inferred— and, indeed, it is a clearly established doctrine — that where a promissory note is made payable at a particular place, as, for example, at a bank or banker’s, in every such case it will be sufficient for the holder to present the same for payment at the specified place; and he is under no obligation whatever, in case of its dishonor at that place, to present it for payment elsewhere, or personally to the maker. The reason is, that by making it payable at that particular place the maker impliedly dispenses with the necessity of making any demand upon him, either personally or elsewhere. And this doctrine applies as well to the case of the indorsers as of the maker of such a promissory note, for the indorsers, equally with the maker in such a case, impliedly agree that presentment at the place shall be sufficient to bind all the parties.”

And in section 213 of the same work the author further says:

“ If the note is payable at a bank or banker’s, or at any other specified place, .to the holder, whether the bank or banker, or other person, has lodged it there, or has possession of it there, at the time of its maturity, it will be the duty of the maker to make payment thereof at that very place, and no special demand need be made upon the maker.”

Uor was any demand upon Warren Ewen, Jr., other than that made by the notary, necessary in order to fix the liability of the guarantor. The note in this case, by its terms, being payable on demand after six months after date, and the agreement contemporaneously entered into, even though apart of the contract, can not require a demand other and different than in accordance with the terms of the note itself. The note constitutes the evidence of the debt, and the return of the money alleged in the contract to have been received as a special deposit was not recoverable except upon the note itself, for the evidence of the indebtedness, by the terms of the contract, was expressed in the note and merged therein, so that the latter constituted the evidence authorizing a recovery. The evidence shows the note was presented to the maker thereof by a bank with which it was deposited for collection, and was duly protested for nonpayment. The demand and protest were after the note was due in accordance with its terms, and it can not be that the guarantor is entitled to any other or different demand and protest further than was made on the maker.

Appellant insists that the negotiation of the note by plaintiff was a wrongful diversion of it from the purpose for which it was given, and released the defendant from his liability as a guarantor thereon.

One great difficulty in regard to this contention is that there is no evidence that the note upon the guaranty of which this action is brought was ever negotiated by the plaintiff or wrongfully diverted from the purpose for which it was given. The previous note may have been negotiated by the plaintiff, and appellant may have been released from his liability thereon. As to this we express no opinion. Whether released from that note or not, appellant voluntarily guaranteed the payment of the present note, it being made payable six months subsequent to the time upon which payment of the first note was required upon demand.

The evidence so clearly showed that the special deposit, acknowledged in the contract on November 15, 1892, was made, that we do not feel called upon to discuss whether appellant is in a position as to the second note to dispute the truthfulness of the acknowledgment of the receipt of the special deposit of $1,250 in the contract of November 15, 1892, under which the first note was given. It appears that prior to the making of the contract, November 15, 1892, between Warren Ewen, Jr., and appellee, two other contracts had been made, and that on August 30, 1893, an agreement was entered into between them, mentioning the two agreements last spoken of, and also an agreement dated February 23, 1893, and that as the conclusion of the agreement of August 30th, the following release was therein:

“Second: It is also understood and mutually agreed that the party of the first part herein and hereby releases the party of the second part from all debt and financial obligation for material and supplies furnished the offices and business of the party of the second part in the cities of Boston, Mass., and New York, N, Y., up to and including date of August 31, 1893; it being the intention, and mutually understood, that the party of the first part herein and hereby waives and cancels all claims and accounts, open, or of whatever kind that may be outstanding in favor of said party of the first part against the party of the second part, up to and including August 31, 1893.”

To this agreement and release of August 30,1893, Warren Ewen, Jr., was party of the first part, and Albert G. Wilbor, Jr., was party of the second part. It is alleged by appellant that at this time Warren Ewen, Jr., was insolvent. As the release is to the plaintiff in this case and not from him it is difficult to understand in what way it affected the obligation of Warren Ewen, Jr., to pay the note under consideration or the guaranty of appellant.

Appellant having pleaded a set-off, urged upon the trial that plaintiff was indebted to Warren Ewen, Jr.,and that the latter had assigned his claim for such indebtedness to him, appellant, and end eavoredtointroduce a writing setting forth said assignment. The court refused to admit such writing, not, as appellant urges, “ because it was not made on the day it was dated,” but because by the testimony of the assignor it was made upon the date of the trial of the cause. Manifestly, appellant could not in this action at law have set off against the plaintiff claims which he had acquired, not only after suit was begun, and the issues made up, but when the trial was going on.

We see nothing in the phraseology of the note to take it out of the category of negotiable instruments, or to make its significance otherwise than clear.

While as before stated the contract of a surety is to be strictly construed, and will not be extended by implication, courts in endeavoring to ascertain the precise contract which a surety has made, may resort to the same aids and will invoke the canons of interpretation which apply to other contracts, and when the true intent and meaning of thecontract entered into by the surety is thus or otherwise ascertained, effect will be given to it. Indeed, in a proper case a bond given by a surety may be amended so as to give effect to and enforce his liability under the contract which a court of equity finds he actually made. Shreffler v. Nadelhoffer, 133 Ill. 536; Henkleman v. Peterson, 154 Ill. 419; Keith v. Henkleman, 173 Ill. 137.

Appellant urges that the jury rendered a verdict only for the principal of the note, not allowing interest. Appellant at the time made no objection to this feature of the verdict, nor did he ask to have the jury again retire that they might compute and add interest to the amount they had found. The omission by the jury and error of the court, if such there were in this regard, were favorable to appellant, and he can not now urge them as a ground for reversal.

We do not find any action of the court upon the trial in allowing or refusing the giving of evidence, or as to instructions, which we think warrants a reversal of the judgment.

It will therefore be affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Freeman

license: Public Domain

text:
    Village of Dolton et al. v. George A. Dolton.
    1. Freehold — Involved in a Litigation over an Easement. — Where the purpose and object of a litigation involve the establishment of an easement in a highway, a freehold is involved and the Appellate Court is without jurisdiction.
    Bill for Belief. — Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Appeal dismissed.
    Opinion filed December 24, 1901.
    I. T. Greenacre and Otto F. Reich, attorneys for appellants.
    John C. Trainor, attorney for appellee.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

This is an appeal from a decree which vacates a judgment of a justice of the peace imposing a fine for violating a village ordinance, and enjoins further proceedings under the said judgment.

It appears that appellee constructed a fence on premises to which he claims title derived from his father in 1892, and by right of peaceable possession and occupancy ever since.

The Village of Dolton claimed that such fence obstructed what it asserts is a public street existing by reason of an alleged ancient dedication by acts of Dolton’s ancestor, and user by the public for more than twenty years. The justice found appellee guilty of obstructing the street and he was fined. From this judgment an appeal was taken to the Criminal Court where the cause appears to be still pending. Appellee seeks further relief by bill in equity, and obtained a decree granting an injunction, from which the appeal before us is prosecuted.

In the view we take of the matter, it is unnecessary to consider the merits of the controversy. It is urged that appellee has an adequate remedy at law and that the bill should have been dismissed. Assuming that such contention may be well founded we are nevertheless of opinion that the appeal to this court was improperly taken. In Town of Brushy Mound v. McClintock, 146 Ill. 643, the suit was originally brought to recover a penalty for the obstruction of a highway in said town. An appeal ivas taken to the. Appellate Court which dismissed the appeal on the ground that a freehold was involved, it appearing that the appellee, who owned the fee of the land, disputed the existence of the highway, which the town claimed existed by prescription. The Supreme Court affirmed the dismissal, holding that a freehold is not only involved where the necessary result of the judgment or decree is that one party gains and the other loses a freehold estate, but also where the title is so put in issue by the pleadings that the decision of the case necessarily involves a decision of such issue. * * * So here, the right of the town to the recovery of the penalty depends upon the determination of the issue affirmed on one side by appellant and denied on the other by appellee, whether or not the public has the interest of a perpetual easement in the highway passing over appellee’s grounds.”

If the case before us was an appeal from a judgment of the Circuit Court in the action brought by the town of Dolton to recover a penalty, or from a judgment of the Criminal Court upon the appeal there taken from the judgment of the justice imposing afine on appellee for obstructing the alleged street, no doubt would exist that a freehold . was involved, and that this court would be compelled to dismiss the appeal. But it is urged by appellant that this is an appeal from a decree rendered in equity in a case wherein it plainly appears from the bill itself that appellee can obtain an adequate remedy at law and is not entitled to the relief granted. The bill is inartistically drawn; but while it seeks to set aside the judgment of the justice, and to restrain appellants “from in any manner incumbering or clouding the title to your orator’s personal or real estate by reason of said judgment,” it is also set forth in the bill that the purpose and object of the suit before the justice was “ to establish a perpetual easement in a high way over your orator’s grounds,” and that appellants “ now threaten to take and damage your orator’s real estate without compensation or due process of law.” The decree finds appellee to be the owner of the disputed property in express terms-. If, therefore, it be conceded that a part of the relief sought by the bill and granted by the decree is not such as a court of equity could properly take cognizance of, and that the Circuit Court erred in sustaining the demurrer of appellants to the bill of complaint, it nevertheless does appear that the bill states in substance, although inartificially and even imperfectly, some apparent grounds for equitable intervention, and that the decree expressly finds the ownership of the freehold in dispute to be in appellee. Under these circumstances it would be improper to dismiss the bill here, and as a freehold is directly involved, we have no jurisdiction to consider the errors assigned. It is our duty, therefore, to dismiss the appeal, and it will be so ordered. Appeal dismissed.


author: Mr. Justice Waterman

text:
    City of Chicago v. Annie Doolan.
    1. Personal Injuries — Of Insane Persons Unable to Testify — Exercise of Ordinary Care. — Where the plaintiff in an action for personal injuries is insane, confined in a hospital at the time of the trial, and unable to be present and testify in her own behalf, it is proper to introduce in her behalf evidence as to her habits tending to show that at the time of her injury she was probably exercising ordinary care for her personal safety. The rule applied in cases where injured persons have died since their injuries, is applicable to one whose mental condition has become such that testimony from him or her is not obtainable.

      2. Damages — WTtere $9,000 is Excessive. — Where a young woman sustained injuries by reason of a fall upon a sidewalk and was alleged to have sustained a permanent dislocation, and other injuries which rendered it impossible, or very improbable, that she would be able, at any time during her life, to bear children, a judgment for $9,000 is excessive.
    3. Remittitur — Of Excessive Damages — Suggestion of, in the Appellate Court. — In an action for personal injuries pending on appeal in the Appellate Court, where, under the circumstances developed by the evidence, the court regards the recovery as excessive, it may affirm the same on condition that the excess be remitted by a day named, otherwise reverse and remand it.
    Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed on remittitur.
    Opinion filed December 24, 1901.

    Statement. — This was a suit to recover damages alleged to have been sustained by appellee December 1, 1897, in consequence of alleged negligence in failing to maintain a sidewalk in proper condition on Boot street in the city of Chicago. A declaration was first filed February 23, 1898.
    The declaration avers that appellee fell upon this sidewalk, whereby she suffered a severe laceration of one of her kidneys and sustained a shock to her spine and nervous system, and other “ injuries, hurts and bruises, external and internal,” and is permanently injured, and has suffered great and constant pain since her injury.
    An amendment filed March 21, 1900, is as follows:
    “And plaintiff, Annie Doolan, then and there sustained severe and permanent dislocation and injuries to her uterus or womb, which made it impossible, or very improbable that she be able, at any time during her life, to bear children, and said injuries then and there sustained have caused her to become insane, which condition is permanent and incurable, and which has necessitated her confinement in a State asylum for the insane.”
    A plea of the general issue was filed to said declaration, and a trial had in the Superior Court, which resulted in a verdict and judgment for appellee for the sum of $9,000, to reverse which judgment this appeal is taken. On the trial appellee did not testify, being at that time confined in a State asylum for the insane.
    Andrew J. Ryan and George E. Gorman, attorneys for appellant; James J. Kelly, of counsel.
    Edward Maher and Charles W. Lamborn, attorneys for appellee.

       Remittitur© filed and cause affirmed December 28,1901.

   Mr. Justice Waterman

delivered the opinion of the court.

At the trial there was evidence tending to show that appellee was under the influence of liquor at the time she fell upon the sidewalk, but it was not such that we can say that therefore the jury should have found her guilty of contributory negligence which occasioned the fall.

Being at the time of the trial insane, and consequently unable to testify, it was proper upon the part of the plaintiff to introduce evidence as to her habits, tending to show that at the time of the injury she was probably exercising ordinary care.

We think that the rule applied in cases where injured persons have died since the accident is applicable to one whose mental condition is such that testimony from him or her is not obtainable.

She was adjudged insane on the 25th of January, 1900. The answers of the jury under the head of family history contains the following: “Previous attack. First time

she was ever affected. Assigned cause, womb trouble. Present attack started three weeks ago.” The verdict declares that her disease is of three weeks’ duration; that the cause is unknown. She was ordered to be confined at Kankakee and was there at the time of the trial.

Under the evidence there is a good deal of doubt as to whether the injury to her was permanent, or her insanity caused thereby.

The case was tried upon the part of the plaintiff upon the theory that her insanity is permanent. Under the circumstances developed by the evidence we regard the judgment of $9,000 as excessive. The action brought was not for a solatium to her husband or other kin, but for damage by her sustained.

If the husband has sustained damages by reason of the injury to his wife they can not be recovered in this action.

If the plaintiff shall within ten days remit from the judgment all in excess of $5,000 it will be affirmed for that sum, otherwise it will be reversed and the cause remanded. Affirmed on remittitur.


text:
    National Union v. Margaret Hunter.
    1. Beneficiary Associations — Prima Facie Evidence of the Service of Assessment Notices. — In an action upon a certificate of a beneficiary association the secretary testified that while he had.no recollection of putting a particular notice for an assessment into an envelope and addressing it to a particular member, he followed his usual custom of mailing a notice to each and every member, and that the one sent to each member showed him the amount of the assessment and was on the blanks of the secretary; held, prima facie evidence of the service of the notice upon the deceased member.
    2. Same — Vested Rights of Beneficiaries, — A beneficiary named in the certificate of a beneficiary association has, during the lifetime of the insured member, no vested rights in the insurance or against the association which can not be lost by action or non-action on the part of the insured.
    3. Evidence — Admissions of Deceased Members of Beneficiary Associations. — The admissions of a deceased member of a beneficiary association as to his acts of omission or commission, in relation to his certificate of membership, are admissible in evidence in suits by his beneficiary against the association.
    a. By-Laws — Of Beneficiary Associations — When Self-Executing,— A by-law of a beneficiary association providing that if a member fails to pay the amount due from him upon an assessment within one month from the date of the notice, as provided by law, he shall stand suspended, is self-executing, and no action, after giving such notice, on the part of the association or any of its officers, is required to effect a suspension.
    5. Forfeitures — Failure to Pay Assessments in Beneficiary Associations. — The failure of a member of a beneficiary association to pay an assessment legally made upon him, is, in itself, a forfeiture of his rights in the association.

      Assumpsit, on a beneficiary certificate. Appeal from, the Superior Court of Cook County; the Hon, Axel Chytraus, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed, and judgment in this court, with a finding of facts.
    Opinion filed December 24, 1901.
    Chas. J. Kavanagh, attorney for appellant.
    James Maher and Thomas H. Cannon, attorneys for appellee; Wells M. Cook, of counsel.
   Mr. Justice Waterman

delivered the opinion of the court.

Joseph E. Hunter having made application for membership in General Hancock Council, No. 501, National Union, on the 3d day of November, 1896, a benefit certificate was issued to him, by the terms of which appellant agreed to pay to appellee the sum of $2,000 upon the death of said Joseph E. Hunter, subject to certain conditions, one of which was that the said Joseph E. Hunter should be in good standing in the order at the time of his death.

Joseph E. Hunter died on the 25th day of November, 1898. Appellant refused to pay appellee, whereupon she brought suit and recovered in the court below a judgment for $2,383.66.

Appellant, in the court below, filed a plea setting up that Joseph E. Hunter having been duly notified to pay an assessment known as No. 176, failed to pay the same, and that by reason of his failure to so pay, he became and was suspended after the expiration of one month from date of notice, and that by reason of such suspension he was not a member in good standing at the time of his death.

Assessment No. 176 was levied in December, 1895. The secretary of the company testified that while he had no recollection of putting a particular notice for assessment No. 176 into the envelope, addressing and mailing it to Joseph E. Hunter, he did follow his usual custom in mailing a notice to each and every member, including Hunter, and that the notice sent to Hunter showed him the amount of the assessment and was on the blanks furnished by the secretary.

This was prima facie evidence of the reception of such notice by Mr. Hunter. National Union v. Shipley, 92 Ill. App. 355-361.

In addition to this it was shown that Hunter afterward talked with the secretary concerning such assessment and some time after his suspension for non-payment of the same had gone into effect, offered to pay the same to the secretary of appellant and made an application for reinstatement.

It is urged by appellee that she is not bound by any admissions made by Joseph E. Hunter, the insured, that he had received notice of assessment No. 176 or by anything he may have stated in his application for reinstatement. We can not agree to this contention.

Appellee had, during the lifetime of the insured, no vested right in the insurance or against appellant, which could not be lost by action or non-action on the part of the insured. His acts of commission and omission might at any time have rendered the benefit certificate of no value. What he said and did in respect to the same was therefore admissible. Hansen v. The Supreme Lodge of the Knights of Honor, 140 Ill. 301, 303-306.

Appellee contends that law 43 of the order as to the suspension of members is not self-executing. Section 1 of this law is as follows:

“ If any member shall fail to pay to the financial secretary of his council the amount due from him upon assessment within one month from the date of the notice, as provided by law, he shall stand suspended from the council.”

This provision is clearly self-executing. No action, after giving notice, on the part of the .council o,r" any of its officers, was required to effect a suspension. On the contrary, section 2 of law 43 distinctly provides that the failure of the financial secretary to notify the president of the council of the date of the suspension, or the failure of the president to announce the suspension,-shall in no wise effect the suspension of a member, but he shall stand suspended upon his failure to pay the assessment as provided in the last preceding section.

The suspension was, however, not a termination of membership. Law 44 provided that he might reinstate himself after suspension, at any time within one month, on payment of all amounts due, together with a fine of twenty-five cents. He had thus an absolute right to reinstate himself. Action alone was required to restore him to good standing.

After he had been suspended more than one month, he could not, under section 2 of law 44, be reinstated, except upon application on a blank provided by the senate secretary, a ballot taken and a majority vote for reinstatement, and as a beneficiary member he was, after the expiration of said month, also required to be re-examined by the medical examiner and approved by the medical director.

A member having remained suspended six months, section 3 of law 44 provides that his name shall be stricken from the books and his membership cease. So long as the insured was a member and had a right, either absolute or conditional, to reinstatement, it was proper to send him notice of subsequent assessments, and such notice was not a waiver of the suspension.

More than a month after the suspension had gone into effect he made an application for reinstatement and was examined by the medical examiner. In this application he stated as follows:

“ I am not now a member of this order. I have not been six months before rejected and not now under suspension and have never been expelled from any council of this order and am a believer in the Supreme Being.”

It seems to be conceded that the foregoing statements in the application were mistakenly made, a blank for "an original application having been used instead of a reinstatement blank. The statement therein that he was not now a member of the order and not now under suspension are not to be taken for or against either party. The application is of consequence only as showing that he did apply for reinstatement and therefore must be presumed to have received notice of assessment Ho. 176. More than thirty days prior to the making of said application, viz., on February 11, 1896, the secretary of the union wrote to him as follows :

“ Friend Hunter : If you pay this up right away you can be reinstated. Don’t let it run too long or you will have to be examined by doctor. Hoping to hear from you soon, I am,
Tours in L., P. & T.,
M. MlNAHAN,
Fin. Secty.”

And mailed to him an assessment notice of assessment No. 179, which was called February 10, 1896. This notice called for the payment of $5.63, thus including the amount of all unpaid assessments. Somewhere between the 8th and 11th of March, 1896, and at a time when he could be reinstated only under the terms of section 2 of law 45, requiring an application upon a prescribed blank, the consent by a majority vote of the council and examination by the medical examiner, approved by the medical director, he offered the sum of $5.63 to the financial secretary of the council. The financial secretary told him that he could not accept it on account of his being under suspension; then, after talking for some time, told him that he would take the money and keep it for him, but would give him no receipt for it, nor would he enter it upon the books, whereupon Hunter told him to take the money and keep it, and when he was reinstated to turn it over to the council. Under these circumstances the financial secretary took the money, but never made any entry of it on the books of the council and never turned it over to the council, and testified at the trial that he had it in his possession yet.

The financial secretary had at this time no authority or power to, by the reception of the money or otherwise, waive the suspension or restore to good standing the suspended member.

This court held in the case of National Union v. Sarah M. Shipley, 92 Ill. App. 355, that the failure of a member of this union to pay an assessment legally made upon him and of which he had notice, before the expiration of thirty days from the time of the reception of the notice, ipso facto operated as a suspension. The insured not being in good standing at the time of his death, appellee was not entitled to recover.

The judgment of the Superior Court is reversed and a judgment for appellant will be here entered upon the finding of facts.

Eeversed, and judgment here.

Finding of Facts. — The court finds that the insured, Joseph E. Hunter, had been suspended more than thirty days prior to bis death, and was not, at the time of his death, a member in good standing of the National Union, appellant.


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    Aaron B. Mead et al. v. Margaret Pollock.
    1. Trespass — To Household Goods — Removal from Rooms. — A housekeeper in the employ of a family occupying a rented house, by remaining in the house with her goods after the expiration of the lease and the removal of the family, becomes a trespasser, and her goods may be lawfully removed therefrom, provided such removal is effected without actual violence and doing no unnecessary harm to her or to any of her belongings.
    2. Practice — Evidence Under the General Issue in Trespass. — Under the general issue the burden of a trespass is upon the plaintiff.
    3. Punitive Damages— When Not Recoverable in Trespass. — Where an act complained of as a trespass is not done maliciously, wantonly or willfully, vindictive damages are not to be allowed.
    4. Master and Servant — WTtere the Occupation of Rented Premises by a Servant is the Occupation of the Master. — Where the occupation of a rented house by a servant is connected with the service, or is required by the employer for the necessary or better performance of such' service, the occupation is as a servant and not as a tenant, and the purpose is that of the master.
    5. Same — Right of a Servant When a Trespasser. — Where the servant of a master occupies leased premises and remains in possession of the premises after the termination of the lease, such tenant becomes a trespasser, but neither she nor her belongings can lawfully be treated with unreasonable violence.
    Trespass, to household goods. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed and remanded.
    Opinion filed December 24, 1901.

      Frank W. Wheeler and Fred D. Silber, attorneys for appellants.
    Seward S. Shirer and Albert E. Dennis, attorneys for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

April 28,1898, Mead and Coe, two of appellants, as agents, leased to one Eugh the first floor apartment in 6023 Ellis avenue, for one year from May 1, 1898, to be used and occupied solely as a dwelling.

The lease, was signed by Mead & Coe and by E. E. Eugh. Mr. Packard’s name was not mentioned therein, nor, so far as appears, in connection with the letting, or-anything that occurred thereafter. Indeed, the record is barren of anything showing that Mr. Packard had any connection with or anything to do with this case, save the admission that he was, and the mention of his name as owner in one of the pleas filed by defendants in this case and the declaration which proceeds against him as a tort feasor.

The lease contained a provision that the premises should not be underlet nor the lease assigned without the written consent of the lessor. No consent, either written or unwritten, was ever given, nor was the plaintiff ever recognized by Mead & Coe, or Packard, as a tenant. Nor does it appear that Packard had any knowledge that the plaintiff used or occupied or lived in the said premises or any portion thereof, until after all that is complained of in this case had been done. The rent was always paid by the lessee, Eugh.

The clear preponderance of the evidence is, that the plaintiff was employed by a number of persons, students, sometimes in the case spoken of as a club, to act as housekeeper for them, they taking their meals in the premises, she superintending the preparation of the same and receiving as her compensation, board for herself and daughters, and if anything was realized over and above the expense of running this boarding house, á small compensation. According to her testimony all that she received for her entire services over and above board for herself and daughters was $20.

Some time in August, 1898, an arrangement was made between Rugh, the lessee, and Head & Coe, that Hugh would surrender his lease and give up possession of said premises at the close of that month, so that Mead & Coe would have the place for another tenant on September 2d. The $20 was one month’s rent, namely, for the month of August, and that was allowed to Rugh. The plaintiff knew of and assented to this arrangement and in pursuance thereof rented another flat for her use, beginning on the first day of September.

Each student paid $2.50 a week for his board. Rugh collected this from them, bought provisions and paid the bills, including the rent. It does not appear that either Mead or Coe knew by whom the premises were occupied, although their agent, Hammond, saw the plaintiff a number of times during the tenancy.. There was no evidence tending to show that there had been sub-letting of the premises to the plaintiff or assignment of the lease to her. The written paper itself was handed to her by one Hurlbut about the 1st of August, but there is nothing tending to show that Rugh or the plaintiff, or any one interested in the lease, ever thought that the plaintiff had become liable for the payment of the rent or the performance of any of the conditions of the lease. Her right to occupy and remain in the premises was, under the evidence, like that of a lady employed by a family as housekeeper. The entire arrangement for the surrender of the lease and allowing $20 to the lessee as a consideration therefor was made with Rugh, and without, so far as appears, any thought upon the part of the plaintiff or any other person interested in the lease, that she had any right therein or thereunder, while, as before stated, she was very properly informed as to the contemplated and actual surrender, and in consequence thereof rented other premises.

In the absence of any evidence showing that conversations had by the plaintiff with Rugh, Hurlbut and others were known to any of the plaintiffs, evidence thereof should not have been admitted. Whatever right to be or remain in the premises the plaintiff had, she derived under and through Eugh.

Upon the 2d of September, at which time the acts complained of took place, the lease having been terminated by agreement, her remaining in the premises was a trespass, and the goods which she had therein, the defendants had a right to remove, if they could do so without actual violence, using no unnecessary force and doing no unnecessary harm to any of her belongings. Keegan v. Kinnare, 123 Ill. 286-288-289; Clinton Wire Cloth Co. v. Gardner, 99 Ill. 151; Ft. Dearborn Lodge v. Klein, 115 Ill. 189; Fabri v. Bryan, 80 Ill. 182; Page v. DePuy, 40 Ill. 506, Ambrose v. Root, 11 Ill. 497; Schaefer v. Silverstein, 46 Ill. App. 610; Mueller v. Kuhn, 46 Ill. App. 496.

Under the plea of the general issue filed by the defendants, the burden of proving a trespass was upon appellee. West Chicago St. Ry. Co. v. Morrison, 160 Ill. 288-295.

The evidence shows that in the removal of her furniture, but little damage was done. The verdict and judgment for $500 must have been based upon an intention to give punitive damages. The plaintiff herself was not put out of the premises, nor was any of the furniture, or her belongings in the room in which she was at the time Hammond and others of the defendants entered the flat and removed the greater portion of her furniture, interfered with in any way. About four o’clock in the afternoon she, of her own accord, went out of the flat, and having previously made arrangements for the carrying away of her furniture, it was at about said time taken away by a person whom she employed, and during the evening placed in the flat she had previously rented.

There was no evidence tending to show that Parker, Mead or Coe, in any way directed any one to put the plaintiff or any of her belongings out of the premises, or that they ratified the act after it had been done.

Upon the morning of September 2d, the lease having been terminated by agreement and it being understood by all parties that the plaintiff would be out of the place by the first of September, calciminers and decorators were sent to the flat to put it in condition for another tenant. They gained access to the house without opposition and proceeded with their work with the assent of the plaintiff, but the plaintiff’s furniture so interfered with what they desired to do that Hammond, the agent for Mead & Coe, without consultation with them, or information to them of the situation, decided to put the plaintiff’s furniture out, and proceeded so to do. He, and those acting with him, "testified that while the plaintiff objected to their doing so and stated that she had meant to have beeti out before and would go very shortly, she finally told Mr. Hammond that he could do as he thought best. So far as appears, before Parker, Mead or Coe knew anything of what had been done in the way of moving the plaintiff’s furniture, she had voluntarily taken out the furniture and her belongings in the room which was not disturbed by Hammond and moved it with herself to another flat. Under such circumstances, punitive damages can not be recovered from either Packard, Mead or Coe. Grund v. Van Vleck, 69 Ill. 478; Rosenkrans v. Barker, 115 Ill. 331; Becker v. Dupree, 75 Ill. 167; Douglas v. Hoffman, 72 Ill. App. 110; The Amiable Nancy, 3d Wheaton, 546.

The instructions of the court not only warranted the jury in giving punitive damages against all of the defendants, but in effect told the jury that if the lessor had knowledge of the arrangement she had with Rugh and others of the club, at whose instance he took the lease, she thereby became an assignee of the lease and entitled to the right of occupancy an assignee would have.

Even had Packard, Mead and Coe known of the arrangement which the plaintiff made with Rugh and thereafter continued to receive rent from Rugh, it would not have made her an assignee of the lease, liable to pay rent or perform any of its covenants, or entitled to any rights or to the premises, save such as she had by her agreement with Rugh to act as housekeeper.

Where the occupation of a house by a servant is connected with the service, or is required by the employer for the necessary or better performance of the service, the occupation is as servant, not as tenant, and the purpose is that of the master. Chatard Bishop v. O’Donovan, 80 Ind. 20; Kerrains v. People, 60 N. Y. 221; Woodfall on Landlord and Tenant, 246.

If Hammond, Spire, and those assisting in the removal of plaintiff’s goods did so with unreasonable violence and injury to her belongings they are liable to her for such injury. It is averred they threatened her with arrest and said they had a warrant; she does not seem to have been injured by such' threats, if any there were. She does not seem to have claimed to them or any one any right to remain in the premises after September 1st. nevertheless, as a trespasser, she had rights, and neither she nor her belongings could properly or lawfully be treated with unreasonable violence.

The judgment of the Superior Court is reversed and the cause remanded.


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    Theodore Juergens v. Ira M. Cobe.
    1. Building and Loan Associations — Security Taken by, on Incumbered Real Estate, Not Void for That Reason. — A trust deed given by a borrowing member of a building and loan association upon real estate, falsely represented by him to be unincumbered, is not necessarily void for the reason that under the statute the association had no authority to loan itá money upon incumbered real estate.
    3. Same — Construction of the Statute Relating to Loans. — Under the statute (R. S. Chap. 33, Sec. 85,) providing that good and ample real estate security, unincumbered except by prior liens of the association, shall be given by borrowers to secure the payment of their loans, is not a positive prohibition to the association, but is mandatory upon the borrowing members requiring them to give such unincumbered security.
    3. Same — Taking Security for Loans upon Incumbered Real Estate Not Ultra Vires. — The taking of a trust deed by a building and loan association from a borrowing member on incumbered real estate to secure a loan, is not, properly speaking, an act ultra vires on the part of the association.

      4. Effect of a Dissolution upon Borrowing Members. — The effect of a resolution by the directors of a building and loan association declaring the notes of a borrowing member due and payable, and directing a foreclosure, is to forfeit the stock, mature the debt and sever the relation of the borrower as a member of the association.
    5. Same — A Party Ceasing to be á Member of a Building and Loan Association is Not Entitled to Earnings Nor Liable for its Debts. — A party ceasing to be a member of a building and loan association is not entitled to share in its subsequent earnings, nor is he liable for its debts thereafter contracted.
    Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed and remanded.
    Opinion filed December 24, 1901.
    Statement. — Appellee is purchaser of the assets of the International Building, Loan and Investment Union, which was incorporated under the building and loan association act of 1879, and was dissolved in the spring' of 1898 by decree of court in a proceeding instituted by the state auditor. Among the assets acquired by appellee at the receiver’s sale were two trust deeds and the notes thereby secured, made by one Frederick Beitz. The first of said notes is for $1,500, and is dated April 1,1890. The second is for $1,500, and is dated June 2,1890. Both are by their terms payable six years from their respective dates. These loans were made subject to the by-laws of the association, and to be paid in monthly installments. In case of nonpayment of such installments for three months, the association might declare the debts due and payable, and treat the shares of stock held by the borrowing member as forfeited. It appears that Beitz paid his installments regularly for the six years, which expired in the spring of 1896, and then refused to continue, claiming that his debt was paid, and he was entitled to have the said trust deeds released. About eighteen months thereafter — September 27,1897— the directors of the association by resolution declared the whole amount of said notes to be due and payable, and directed that the trust deeds be foreclosed. Thereupon a bill to foreclose was filed by the association October 11, 1897, pending which proceedings were begun, finally resulting in April, 1898, in a decree dissolving the association, - and the sale of the assets to appellee. The latter filed his supplemental bill and obtained the decree from which this appeal is taken.
    Appellant Juergens had loaned said Frederick Beitz, December 17, 1894, the sum of $1,930, which was secured by trust deed upon the same premises. Juergens was made a party to the foreclosure proceedings by the association and filed a cross-bill seeking to foreclose under his own mortgage, to which cross-bill a demurrer was sustained.
    The Superior Court held appellant’s lien to be fourth and last, subsidiary to a first lien for taxes, a second lien to one John Plumer, as holder of a first incumbrance, and third, to the lien of the two trust deeds purchased by appellee from the defunct association.
    Paden & Gridley, attorneys for appellant.
    S. W. Swabey, attorney for appellee.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

It is contended on behalf of appellant that the two trust deeds given by Frederick Beitz to the International Building, Loan & Investment Union were absolutely void. The ground of this contention is that the property upon which they were given was at the time incumbered with a prior mortgage to one John Plumer, made to secure a note of said Frederick Beitz for $600, and interest, dated November 1, 1889, and payable five years after said date, which has never been satisfied or released. It is claimed that the Building and Loan Association had no authority to loan money upon incumbered real estate, and hence the taking by the union of trust deeds upon property already incumbered was ultra vires. The act under which said association or “union” was organized provides (It. S. Chap. 32, Sec. 85) that “ Good and ample real estate security unincumbered except by prior liens of such association shall be given by the borrowers to secure the repayment of the loan.” It appears that in his application to the association for the loans in question, Beitz, the applicant, stated under oath that no incumbrances existed on said property except one which apparently was taken up by the association with the money borrowed. Ho mention was made in said application of the Plumer incumbrance, and it does not appear that the officers of the association were advised of its existence at that time, although the abstract of title should have disclosed it. An elaborate argument is made by appellant’s counsel in support of the claim that it was beyond the power of the “ union” to make these loans subject to the Plumer incumbrance. We do not, however, regard them as beyond the association’s powers. If the statute be read strictly it is not a positive prohibition to the association, but is mandatory upon the borrowing member requiring him to give such unincumbered security. It would hardly be urged in a case where unincumbered security was given, and as additional security a mortgage was also given to cover property which was incumbered, that the statute was not complied with and that such second mortgage was null and void. Tet if the association has no power under any circumstances to take incumbered security, such would be the logical result of appellant’s argument. In the present case, the applicant made a misstatement as to the facts, by which for aught that appears the association may have been misled. It would scarcely be in accordance with equity to relieve Beitz’s property of an incumbrance of which he has had the benefit, and from a loan which was procured by his own wrong. It appears, moreover, that the property in question was in fact regarded and apparently is still, as constituting “good and ample real estate security” for the amount of the loans in question, else appellant, it may be presumed, would not have ventured to make a fourth loan subject to the three prior incumbrances. These trust deeds are-not, properly speaking, ultra vires. They were within the scope of the association’s charter powers, and any fraud or mistake by which they were made subject to a prior incumbrance on the property, did not and could not invalidate them, taken, as they appear to have been, in good faith. The contracts were recognized for six years as valid by the mortgagor and by the association. They were performed by the latter not only, but complied with by the borrower during that time. It may be conceded the security was not given in the manner prescribed by statute. But this was immaterial under the circumstances of the case. We regard the trust deeds as valid and binding. The views ' we have stated are sustained by principle and authorities, among which it is sufficient to cite Eckman v. C., B. & Q. Ry. Co., 169 Ill. 312; Lurton v. Jacksonville L. & B. Association, 187 Ill. 141.

We are obliged to concur, however, in appellant’s contention that there is error in the statement of the account. It seems to be conceded that the stock held by Beitz ivas forfeited by the resolution of the directors of the “ union” adopted September 22,1897. The “union” filed its bill to foreclose these trust deeds October 11,1897, some time prior to the proceedings which resulted in its dissolution. The effect of what was done was to forfeit the stock and mature the debt, and to sever the relation of the borrower as a member of the association. Armstrong v. Building Association, 176 Ill. 298, 301. Having ceased to be a member he was not entitled thereafter to share in the earnings. Vierling v. Mechanics’ Saving Association, 179 Ill. 524-532. It is claimed by appellant’s counsel that it must follow Beitz was not thereafter liable for the association’s losses. However this may be, it is, we think, clear that when his stock was forfeited September 22,1897, he thereafter ceased to be a member of the association. When subsequently the suit against the union was prosecuted by the state auditor, Beitz, not being a member of thó association, and not having been brought in by summons or otherwise, was not a party to that proceeding and not bound by orders therein entered. ■ By the decree in that cause it was ordered th°at each borrowing stockholder should be credited with an amount equivalent to twenty-five per cent of the payments he had made of installments upon his stock, in full settlement of his claims against the insolvent association. This decree did not apply to Beitz. His membership had ceased long before his debt had been declared matured and foreclosure proceedings begun. His relation to the association was that of a debtor, not of a stockholder. The account between himself and the association must be determined in accordance with the rules governing such foreclosures. These are stated, in part at least, in the case of Vierling v. Mechanics’ Saving Association, 179 Ill. 524-531. It is there held that the borrower is entitled to be credited with the actual payments made by him on account of his stock and by way of interest on the loans. In the present case the decree has allowed a credit of only twenty-five per cent of the dues paid in; the property is charged with interest and premium to the time of the dissolution of the association, and fines for the same period. Hpon no theory that we are aware of can fines be charged after the determination of the stockholder’s membership. Armstrong v. Building Association, supra.

For the errors indicated the decree of the Superior Court is reversed and the cause remanded. Reversed and remanded.


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    Geo. J. Stadler Brewing Co. et al. v. Charles E. Weadley.
    1. Chattel Mortgages — Statements Required When Sales Are Made Under. — Upon making a sale under a chattel mortgage the mortgagee making such sale is requ'red to make out and deliver to the mortgagor a statement showing the items of property sold, the names of each purchaser and the amount for which each article sold, and also an itemized statement of the necessary reasonable expenses incurred in taking, keeping and selling such property.
    3. Evidence — Of Lost Documents — Estoppel.—Where a statement is conceded by the party in whose hands it was last heard from to have been lost or destroyed, notice to him to produce it is unnecessary, as he-is estopped by his concession from setting up such a possession of the' pacer as would make a notice of it of any use.
    3. Same— Where a Notice is Unavailing. — In an action to recover a penalty for a failure to make out and deliver to the mortgagor a notice of a sale under a chattel mortgage, where the plaintiff testified that he never received any notice or statement from anybody representing the defendant after the sale, and his testimony tended to show that no such statement as the statute requires had been served upon him, it is error to refuse to permit the defendant to introduce evidence showing that he made out a notice and handed it to the plaintiff after the sale, on the ground that the original notice itself is the best evidence of what it contained.
    Debt, for a statutory penalty. Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed and remanded.
    Opinion filed December 24, 1901.
    Beach & Beach, attorneys for appellants.
    Joseph A. McInerney, attorney for appellee.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

This suit was originally brought before a justice of the peace to recover of appellant under section 26, Chap. 95, B. S., relating to the sale of property under chattel mortgages. The section provides that “ Upon the making of said sale the mortgagee shall make out a statement showing the items of personal property sold, the names of each purchaser and the amount for which each article sold, and also an itemized statement of the necessary reasonable expenses incurred in taking, keeping and selling said property, and shall deliver the same to the mortgagors, or some one of them, in person or by mail, and if he fails so to do within ten days after said sale, the owner of said property may sue for and recover one-third of the value of the property so sold from the mortgagee or person making said sale as assignee of said mortgagee.”

Appellant having foreclosed two chattel mortgages given to it by appellee, caused the personal property therein described to be sold, and appellee sued to recover a third of the value of the property thus sold, claiming that appellant had failed to make out and deliver the statement required by the statute as above quoted. Judgment was recovered before the justice, and upon appeal to the Circuit Court, where the cause was submitted without a jury, judgment was rendered in favor of appellee for §100.

The only question requiring consideration is whether the trial court ruled correctly in refusing to admit certain testimony offered for the defense. Appellee had testified that he never received any statement from anybody representing appellant after the sale, and his testimony tended to show that no such statement as the statute required had ever been delivered to him in person or sent by mail. For the defense a witness was introduced who testified that he made out a notice and handed it to appellee after the sale, and that it was “ a notice of what took place.” An objection to this answer was sustained by the trial court on the ground that the notice itself is the best evidence of what it contained, and to all questions seeking to have the witness state what was contained in the written notice which he claimed to have handed to appellee, objections were sustained upon the same ground. We agree with appellant’s attorneys that this ruling was erroneous. Appellee had testified that he had never received any statement from appellant. To serve notice on him, therefore, to produce a paper he had sworn he had never received would be unnecessary and useless, unless upon an assumption that his testimony was untrue. It appearing that appellee denied the receipt of any such notice, it was incumbent upon appellant-not only to prove its delivery but also to show the nature and contents of the paper. Appellant testified in effect that he did not have the statement, but had delivered it to appellee; and appellee swore that he never had it. Upon this testimony it should have been treated as a lost document, and secondary evidence of its contents was admissible without notice to appellee to produce the original. In Wharton on Evidence, Yol. 1, Sec. 161, it is said :

ik If a document is conceded by the party in whose hands it was last heard from to have been lost or destroyed, then notice to him to produce is unnecessary. He is estopped by his admission from setting up such possession of the paper as would make a notice to produce of use.”

Such is the effect of the testimony in the case at bar. Neally v Greenough, 23 N. H. 323-329; McCreary V. Heed, 5 Blackf. 316.

It was evident from the nature of the case that appellant, in order to defend, must prove the delivery to appellee of such a statement as the statute requires, and thus charge the latter with possession of the writing. In such case no notice to the appellee to produce the statement is required. The nature of the suit and the requirements for defense are all the notice demanded. 1 Greenleaf on Evidence, Sec. 561; Cummings v. McKinney, 4 Scam. 57-60; Chicago, C., C. & St. L. Ry. Co. v. Newlin, 74 Ill. App. 638-647; Con. Life Ins. Co. v. Rogers, 119 Ill. 474-489; Lawson v. Bachman, 81 N. Y. 616; State v. Mayberry, 48 Me. 218-239; Dewitt v. Prescott, 31 Mich. 398-301.

For the reasons indicated we regard the refusal to allow the witness to testify to the contents of the instrument as erroneous, and are of opinion that no notice to appellee’s attorney to produce the original was necessary. The judgment of the Circuit Court must be reversed and the cause remanded.


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    Chicago City Ry. Co. v. Simon Sandusky.
    !• Instbuctions— Should be Clear, Accurate and New in Number.— Instructions should always be clear, accurate and concise statements of the law as applicable to the facts of the case under consideration. A few concise statements of the law applicable to the facts are all that can serve any practical purpose in the determination of the questions at issue in the case.
    2. Same — Where an Unreasonable Number is Presented. — Where an attorney persists in handing up an unreasonable number of instructions, considering the nature of the case, the court is justified in refusing to examine them, and in requiring them to be consolidated, condensed or eliminated within such limits as may be reasonable.
    Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed December 24, 1901.

      Wm. J. Hynes and Watson J. Ferry, attorneys for appellant; Mason B. Starring, of counsel.
    William C. Snow arid Charles Hugh Stevenson, attorneys for appellee; William Prentiss, of counsel.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

This is an action to recover for personal injuries. Appellee was driving westward in a one-horse wagon along Thirtieth street, Chicago, and crossing State street, when his wagon was struck by a north-bound cable car running upon appellant’s tracks on the latter street. The declaration charges that appellant drove its car so rapidly and negligently, that appellee, although in the exercise of due and reasonable care, was thrown out of his wagon by the collision and thus injured. The jury in the trial court returned a verdict of $1,000 in favor of appellee, and judgment was rendered accordingly, from which this appeal comes.

It is first urged that the verdict is not justified by the evidence, which it is claimed shows that appellee failed to exercise ordinary care, and that appellant was guiltless of negligence. Testimony was given in behalf of appellee by a woman who states that she saw the accident and that when appellee’s horse stepped upon the track on which the cable car was approaching, the latter was a good length away,” or as she afterward puts it, I would say in the middle of the block, like.” She states the car was going about as fast as a man would run; that the gripman did nothing to prevent the collision; that no bell was rung and no warning given; that the grip car struck the back wheel of the wagon; that the latter was not overturned by the collision but tilted; that appellee was thrown out, striking on the back of his head, and that then the gripman stopped his car quickly, at a point about two car lengths north of Thirtieth street. The accident occurred between seven and eight o’clock the night of April 18, 1896, at a time when it was raining or drizzling. Appellee’s testimony is to the effect that he is a junk dealer, and was driving homeward; that his horse was walking or trotting, he doesn’t seem to be quite sure which; that when he approached the track the car appeared “ a good ways from the wagon vet;” that when he “ got down on -the track ” the car struck the wagon; that he fell and was rendered unconscious. He states that he was carrying a light on the left side of the seat from which direction the car was approaching.

There is considerable testimony in behalf of appellant tending to show that appellee was not looking out for approaching cars as he neared the tracks; that he drove upon the track just ahead of the train, although when he was ten or fifteen feet therefrom, the gripman was not much further away; that the gong was sounding continuously and that the gripman used every effort to stop the car and prevent the accident. That there is evidence tending to show due care on the part of appellee and negligence on the part of appellant is plain. This evidence was presented to the jury, who saw the witnesses and heard their testimony. We are not warranted in setting aside the verdict upon conflicting evidence merely because the conclusion is not what we ourselves, if sitting as jurors, might perhaps have reached.

While the trial was in progress and a number of witnesses for the defense were still to be examined, the court called up the attorneys on both sides, and the jury being present, read to them the following : “ It is ordered at this time,

while the witnesses on the part of the defendant are being examined, that the instructions to be tendered to, examined or given by the court to the jury, be limited to twenty-four, twelve on the part of the plaintiff and twelve on the part of the defendant, and that no instructions in excess of said numbers will be received or examined by the court or given to the jury.”

The court stated that the notice was given at that time so that counsel might not be taken by surprise and might have opportunity to prepare their instructions accordingly; and that the trial judge had become sufficiently familiar with the case to form an opinion as to what would constitute a reasonably sufficient number in view of the nature of the case. Pursuant to the purpose so indicated the court gave seven out of the twelve instructions first submitted by appellant, modified the eighth and refused four. Twenty-additional instructions were presented by appellant’s counsel, which the court declined to examine, and refused in a body. It is insisted that in this the court erred; that if among the instructions so offered there are any which declare the law applicable to the case, which are not argumentative or misleading, nor repetitions of others given, it was error not to give them. No complaint is made in appellant’s brief of the court’s action in refusing or modifying the instructions which were so disposed of, but it is urged that among the twenty refused without examination, there were several which correctly stated principles of law applicable to the case.

The Practice Act provides (E. S. Chap. 110, Sec. 51), “ The court in charging the jury shall only instruct as to the law of the case;” that (Sec. 52) “hereafter no judge shall instruct the petit jury in any case, civil or criminal, unless such instructions are reduced to writing;” and (Sec. 54), “When instructions■ are asked which the judge can not give, he shall on the margin thereof write the word ‘refused;’ and such as he approves he shall write on the margin thereof, the word ‘given;’ and he shall in no case after instructions are given, qualify, modify, or in any manner explain the same to the jury otherwise than in writing.” The necessity of reducing the charge of the court to writing, and the time which this would require while counsel, jurors and other causes are kept waiting, has led to the almost universal abandonment by trial courts in this State of any charge to the jury wherein the trial judge takes the initiative, stating in his own way the law applicable and endeavoring thus to aid the jury in a proper performance of their duty. Instead of such a charge, the trial court is now generally confined to an examination of instructions prepared by the attorneys on either side, and to giving or refusing such as the judge may conclude from such examination should be so given or refused. They are frequenrly presented after the evidence is in, and examined by the presiding judge during the time occupied by the attorneys in addressing the jury. As the giving or refusing of instructions so presented is a frequent ground of application to reviewing courts, it is not infrequently deemed not undesirable by attorneys in many cases that the trial court should be led to commit error in giving or refusing instructions, which in the event of a judgment against their clients may be urged as ground for reversal. Whether from such motive or because honestly believing that it is necessary for the protection of their clients’ interests, it has become altogether too common to submit a large number of instruc- . tions containing numerous propositions of law not always clearly stated nor clearly applicable to the particular case, and which it is very difficult for any judge to adequately consider in the time at his disposal for such purpose. This practice has been frequently condemned by reviewing courts in this State. In Adams v. Smith, 58 Ill. 417, the series of instructions given at the instance of the appellee were eighteen in number. The Supreme Court, by Mr. Justice Scott, said: “We do not understand why it is that counsel, where they have a good cause, will seek to incumber it with such a multitude of instructions, the almost invariable effect of which is, to introduce manifest error into the record. Such a practice does not enlighten the minds of the jury on the issues submitted to them, but rather tends to introduce confusion. Instructions should always be clear, accurate and concise statements of the law as applicable to the facts of the case. It was never contemplated, under the provisions of the practice act, that the court should be required to give a vast number of instructions, amounting in the aggregate to a lengthy address. It is a mischievous practice and ought to be discontinued. A few concise statements of the law applicable to the facts are all that can be required and are all that can serve any practical purpose in the elucidation of the case.” The court adds that although the Circuit Court may have refused proper and given improper instructions, the verdict will not always be disturbed for that reason alone, where substantial justice has been done, and the instructions were not such as would tend to mislead the jury on doubtful facts. In City of Chicago v. Moore, 139 Ill. 201, the trial court had refused all the instructions asked by the -plaintiffs, and embodied all the law thought to be applicable in one charge to the jury, and the Supreme Court commended the practice as it had several times done before, citing Hill v. Parsons, 110 Ill. 111; Hanchett v. Kimbark, 118 Ill. 132; Birmingham Fire Ins. Co. v. Pulver, 126 Ill. 329. The conclusion stated is that When the judge sees proper to do so, it is competent for him to prepare his own charge to the jury; but if he does so, he should embody in it, either literally or in substance, all proper instructions asked by counsel; ” but that “ it by no means follows, because an instruction contains a correct proposition of law that it must meet the approval of the judge, and must therefore be given. Each party to the litigation has a right to demand that the law applicable to his case shall be given with accuracy and clearness to the jury. But this is all he has a right to demand,” etc. The case of Chicago Athletic Association v. Eddy Electric Manufacturing Company, 77 Ill. App. 204-212, indicates the lengths to which attorneys sometimes go in bundling onto the trial court a great number of so-called instructions. .In that case the number tendered by the appellant was eighty-four and the Appellate Court says: This was an unfair and improper burden cast upon the trial court. That court would have been fully justified in refusing them all without examination upon the ground of the unreasonable number, and in preparing and giving of its own motion in lieu thereof, an instruction covering the theory of defense.” In I. & I. S. Ry. Co. v. Wilson & Son, 77 Ill. App. 603-607, appellant presented thirty-six separate instructions, and the Appellate Court says: “ Ho such number of instructions, nor the third of that number, are ever necessary to a proper statement of the law in such, a case as this. To present such a number of instructions in a case as simple as this one is to invite error and become a party to it.” In I. C. R. R. Co. v. Chicago Title & Trust Co., 79 Ill. App. 623-632, it is said: “ Appellant’s counsel asked thirty-nine instructions, thirteen of which, some of them modified, were given and the remaincler refused. Counsel now objects to the modification of the instructions modified and the refusal of those refused. We decline to pass on these objections. Such a large number of instructions in such a case as this is wholly unnecessary, tends to confuse rather than enlighten the jury, and also to increase the chances of error, which latter we are inclined to think is not infrequently the object sought to be attained by counsel.” In City of Salem v. Webster, 95 Ill. App. 120-131, the counsel for appellant had presented .thirty-one instructions. It is said by Presiding Justice Creighton: The practice of presenting to the court a large number of instructions, repeating over and over again the same propositions of law, has often been condemned by our courts. When a number of instructions are asked by the same counsel covering the same principle of law, if the court in selecting does not give the one stating the law most favorably to the party so asking, he has no cause of complaint against the court.” The above references indicate" how general is the evil complained of, and that it has been often and strongly condemned. It would seem to be time that attorneys began to heed these admonitions.

In the case at bar, the trial court gave the attorneys on both sides fair notice in ample time to adapt their instructions to the ruling announced. It is entirely justifiable to endeavor to prevent what has undoubtedly become an abuse, an impediment to the accurate and prompt administration of the law. It may be that it would not always be proper to limit the instructions presented to a fixed and definite number. Such a rule, however, means only that the number shall not exceed the limit, and if that number is reasonably sufficient no injustice is done. Any rule of the kind would doubtless be relaxed upon a showing in good faith that a fair and accurate presentation of the law applicable to a case reasonably required one or more additional instructions. In the present case thirty-two instructions in all were asked for appellant. Examination shows that these contain repetitions in some instances, and are otherwise subject to criticism; and we are quite convinced, that all which was relevant or important could have been readily embraced in the number limited by the court. If appellant’s attorneys thought otherwise, it was open to them to call the special attention of the trial judge to any particular additional instruction they deemed essential to properly advise the jury. No effort was made to do this. The extra twenty were handed up in a bunch without any showing whatever why the rule announced should be relaxed, and after counsel had been advised that more than twelve would not be examined. Under these circumstances we need not consider whether some of the instructions so presented might not with propriety have been given. If any error was committed in that regard appellant’s counsel were parties to and responsible for it. Where attorneys persist in handing up an unreasonable number of instructions considering the nature of the case, the court is justified in refusing to examine them, and in requiring them to be consolidated, condensed or eliminated within such limits as may be reasonable.

In the present case the court examined such as were selected by appellant’s attorneys, within the limit fixed, and gave such of them as were deemed applicable fairly covering the theory of the defense. Finding no reversible error, the judgment of the Superior Court must be affirmed.


author: Mr. Justice Shepard

text:
    John S. Level v. Alice B. Chadbourne.
    1. Questions of Fact — In Actions for Money Had and Received.— Where a party is doing business under different styles and is sued for money had and received, the question whether he is the real party back of the concern is a question of fact for the jury, under all the evidence in the case, and whether he is doing the business in his own nam#or in the name of a purported corporation, is immaterial, if he received the money he is liable.
    Action under section 132 of the Criminal Code. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Cart, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed December 24, 1901.

      D’Donnell & Brady, attorneys for appellant.
    D. M. Kirton, attorney for appellee.
   Mr. Justice Shepard

delivered the opinion of the court.

The declaration in this case consisted of a special count, under the provisions of section 132 of the criminal code, to recover money deposited as margins in a -gambling contract, and the common counts in assumpsit.

Judgment was recovered for $850 on a verdict for that amount, and this appeal has followed.

The evidence disclosed that appellant conducted a bucket-shop business in his own name, which was changed, about June, 1898, to the name of a corporation known as the North American Grain and Stock Exchange, and in December, 1898, again changed to the Northern Grain and Stock Exchange, not incorporated. It. was admittedly the same business down to the time of the last change of name-appellant owning it and conducting it. The defense is that appellant had nothing to do with the business after this last change of name, on December 6 or 7,1898; that he was not a party to the contract entered into with the appellee, and that he was not a “ winner ” within the meaning of section 132 aforesaid.

It appears in evidence that appellee commenced to do business with appellant in February, 1898, while he was engaged in business in his own name and continued to trade with him until after the last change of name. During all the time she so traded, the appellee received no notice from the appellant that he had retired from the business, and she had no notice of the change of name in which the business was carried on, except she observed the change on the windows and door of the office, from appellant’s individual name to that of the corporation and pseudo corporation.

Tlfere is no question but at the time of the alleged transaction, a bucket-shop business was carried on at the place where the transaction was made — that is, that no -actual stocks were intended to be bought or sold, and that settlement was intended to be on the basis of differences in price of the commodity dealt in; and the same understanding existed at the time this particular transaction was entered upon, on December 21,1898. It was then the same kind of business, the same office and fixtures and the same clerics.

Appellee gave her money at that time to one McGurk, who, it is claimed, became the owner of the business on December 7th. He had been in the employ of appellant all the time that appellee had done business with appellant, and she had paid to him money on former transactions. There was nothing in the presence of McGurk at the office, nor in the receipt of the money paid to him, to put appellee on inquiry as to a change in ownership of the business. The appellant was around the office after business hours looking over the accounts with McGurk, after the name had been changed to the Northern Grain and Stock Exchange, and the jury had the right to infer that the appellant was still interested in the business. The business continued to be appellant’s until it was shown that appellee had notice that he had withdrawn from it. Arnold v. Hart, 75 Ill. App. 165.

Only two witnesses testified at the trial — the appellee and the appellant — and the jury were entitled to say which of them they believed. McGurk was not called to testify. If they believed appellee and did not believe appellant, it was their right so to do, and the evidence was not evenly balanced.

The instructions fully and fairly presented this and the other questions in the case with entire clearness, and no point is made against them.

Whether appellant was the real party back of the concern was a question of fact for the jury under all the evidence. Whether he was doing the business in his own name or in the name of a purported corporation, if he received the money he is liable. Pearce v. Foote, 113 Ill. 228; Jamieson v. Wallace, 167 Ill. 388; Kruse v. Kennett, 181 Ill. 199.

We discover no ground for a reversal of the judgment, and it is therefore affirmed.


text:
    Chicago City Ry. Co. v. Jennie Fennimore.
    1. Ordinary Care — Measure of Proof on the Party Holding the Affirmative.- — In an action for personal injuries it is not incumbent upon the plaintiff to establish care and caution on his part by direct and ■ positive testimony, and in determining such question the instinctive promptings to the preservation of life and evidence of danger may be » taken into consideration.

      2. Same — Failure to Look and Listen. — It can not be said as a matter of law, that a person is in fault in failing to look and listen when about to cross the track of a railroad, if misled without his fault, or when the surroundings excuse such failure.
    Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed December 24, 1901.
    Wm. J. Hynes and W. J. Ferry, attorneys for appellant; Mason B. Starring, of counsel.
    James C. McShane, attorney for appellee.
   Mr. Justice Shepard

delivered the opinion of the court.

This is an appeal from a judgment for $2,250, entered upon a verdict for that sum, in a suit brought by appellee against appellant, to recover damages for an "alleged personal injury.

The principal questions presented are whether appellant was or was not negligent, as charged in the declaration, and whether appellee was or was not in the exercise of due care for her own safety at the time of sustaining the alleged injury.

The injury happened on the tracks of appellant on State ' street at Forty-eighth street. At that point there was a double track, the east one being used for north-bound cable trains and the west one for trains south-bound. Appellee lived on the east side of State street 'about midway between Forty-seventh and Forty-eighth streets. On the evening in question she left her home to go to Englewood, which lay southward, and she desired to take a south-bound train. Coming to the sidewalk she looked north for an approaching train, but seeing none she walked along on the sidewalk on the east side of the street, southward to Forty-eighth street. There she started to cross State street to reach the Avest side of the street, in order to get in the proper place to take a south-bound car. In doing so, she says she walked cat a cornered (presumably from the northeast corner of Forty-eighth and State streets). Just before reaching the east or north-bound track a north-bound train came along and she stopped to let it pass. It Avent by at the usual rate of speed Avithout stopping. Just before, or as it passed her, she looked again in the direction of Forty-seventh street for an approaching train, but saw none, and as soon as the north-bound train passed she stepped in behind it and crossed the track on Avhich it was running, and Avas about to step on to the south-bound track when she was struck by the grip car of a south-bound train and injured in the manner complained of.

There Avas evidence tending to show that the headlight on the south-bound grip car that struck her Avas, owing to an accident that had happened to the lamp, burning dimly and Avas not seen by appellee, and that no bell or gong was rung as the train approached.

The dimness of the headlight is not seriously controverted by the appellant, but it is insisted that the bell or gong Ayas ringing, and that the headlight, although defective, was burning Avith sufficient brightness to be visible at a considerable distance to persons who looked for it.

The speed at which the train that struck appellee was going, Avas conceded to be the usual speed at that point, viz., twelve miles an hour, and that no attempt to lessen the speed was made by the gripman until just before appellee was hit.

While running street cars at the rate of twelve miles an hour, when such rate of speed is not prohibited by ordinance, is not of itself negligence (Pack v. Chicago City RailAvay Company, 69 Ill. App. 656, same case 173 Ill. 289), such rate of speed may be properly considered by the jury in connection with other evidence, such as dimness or absence of headlight, or failure to otherwise give warning of the coming of a train when approaching a street crossing, or when passing another car moving with equal rapidity in an opposite direction for the purpose of showing a negligent operation of the train complained of.

The case was here on appeal by the present appellant once before (76 Ill. App. 478). The verdict at that trial was returned at $15,000, of which four-fifths, or $12,000, was remitted to obviate the granting of a new trial. We there held that the vice of so large a verdict could not be cured by a remittitur of four-fifths of it, and remanded the cause for another trial. It has been again tried with the result of a verdict, untainted by passion or prejudice, upon which judgment has been entered.

But it is still strongly insisted that the appellant’s servants in charge of the offending train were in the exercise of all the care and caution imposed upon them by the law, and that appellee herself did not exercise the care for her own safety that the law required of her as a condition of a recovery by her.

We have stated the facts and circumstances under which the accident happened. They are few and the issues presented were plain. Two juries have heard all the evidence and have found by their verdicts that the light was so dim, under evidence tending to show it, that it was not easily discernible, except when close to it, and did not constitute a warning to appellee of the approach of the train carrying it. They must also be held to have found that the rate of speed at which the train was running was excessive in view of the condition of the headlight, the passing of the north-bound train, and the surrounding darkness.

The main ground of contention that appellee was not in the exercise of due care for her own safety, is that appellee did not look northward after passing behind the northbound train. She had looked just before, and seeing no train approaching, it was not absolutely incumbent upon her to again look. The passing of the north-bound train, going at the rate of twelve miles an hour, occupied but a very short space of time. Before it had passed, her view to the northward was unobstructed, and seeing no headlight approaching, it was not necessai'ily incumbent upon her to look again while taking the few steps remaining for her to cross the street. She must necessarily also have watched to pick her steps when making the crossing over the tracks.

The passing of the north-bound train also arrested her attention. It was not incumbent upon appellee to establish care and caution on her part by direct and positive testimony, but such due care may be inferred from all the circumstances immediately prior to and at the time of the injury; and in determining such question the instinct prompting to the preservation of life and evidence of danger may be taken into consideration. C. & E. I. R. R. Co. v. Huston, 95 Ill. App. 350; C., C., C. & St. L. Ry. Co. v. Keenan, 190 Ill. 217.

It is the settled rule in this State that it can not be said, as a matter of law, that a person is in‘fault in failing to look and listen if misled without his fault, or when the surroundings may excuse such failure. Chicago and Alton R. R. Co. v. Pearson, 184 Ill. 387.

As we said when the case was here before (78 Ill. App. 478), reversing the proposition then stated, if she was in fact misled by the alleged dimness of the headlight, the conclusion that she was negligent under the circumstances would not result as a matter of law.

It was for the jury to decide whether, in view of all her surroundings, she was excused from looking again.

With reference to the claimed error in refusing one of the instructions asked by appellant, it was doubtless good as an abstract proposition of law. But in the respects applicable to the case in hand, it was sufficiently covered by other instructions that were given.

It is finally urged tha-t the verdict was excessive, but we think not. The extent of appellee’s injuries must be ascertained from a consideration of all the evidence and not from that on appellant’s side only. After a careful consideration of all the evidence we can not say there is any indication of partiality, prejudice or passion entering into the conclusion of the jury. The judgment will be affirmed and it is so ordered.