author: Mr. Justice Wilkin

text:
    The Commercial Union Assurance Company v. J. Young Scammon.

      Filed at Ottawa November 15, 1888.

      1. Insurance—subsequent insurance by another, without right—effect as to rights under a prior policy. The owner of premises, after having given a mortgage thereon, procured a policy of insurance on the property. Subsequently a sale was made under a power in the mortgage, and thereupon the purchaser at such sale, without the consent of the mortgagor, insured the premises in his own name, and on the destruction of the building by fire, collected the insurance money under his policy. On bill by the mortgagor, the sale was set aside, and an accounting had in respect to the money so received: Held, that this was no bar to a suit by the mortgagor to recover on his prior policy, for the loss.
    2. Same—condition against alienation—construed—and herein, what constitutes an alienation. A policy of insurance upon a house, including no personal property, provided that if the property be sold or transferred, or any change in title or possession should take place, either by judicial sale or voluntary conveyance, the same should be void. Another clause provided, that where property has been sold or delivered,, or otherwise disposed of, so that all interest or liability on the part of the assured has ceased, the insurance should immediately terminate:' Held, that taking' these clauses together, it was apparent that an alienation, to avoid the policy, must be such that all interest or liability of the assured has ceased.
    3. In such a case, a sale of the property insured under a power in a deed of trust, which is voidable, and is afterward set aside, is not such an alienation of the property, within the meaning of the policy, as will avoid it.
    4. A trustee under a mortgage containing a power of sale can not become a purchaser at his own sale, either directly, or indirectly, by procuring another to buy for his benefit, and if he does so become the piuchaser, the right of the mortgagor will not be affected, and such a sale and conveyance will not constitute an alienation or disposition of the property, within the meaning of a clause in á policy of insurance declaring that a sale shall render the policy void.
    5. The owner of premises gave a trust deed thereon, to secure a debt, after which he took a policy of insurance on the same, in which was a clause prohibiting the alienation of the property. The trustee, without the owner’s consent, sold the property to another for his own benefit, the owner remaining in possession until after its loss by fire. The latter instituted suit to have the sale set aside, and for redemption: Held, that the existence of the trustee’s deed at the time of the loss was not such an alienation as avoided the policy, within the meaning of such clause.
    6. Same—proofs of loss—waiver. Where an insurance company, after notice of a loss, and with full knowledge of the facts, and before the expiration of the time for furnishing proofs of loss, resolves not to pay the loss, basing its refusal on a ground not well founded, and which is no defense, and informs the insured of its determination not to pay, this will amount to a waiver of-the proofs of the loss.
    7. Appeal—;final judgment in Appellate Court. Where there is no evidence tending to prove the issues tendered by the defendant, so that the trial court would have been justified in directing the jury to find for the plaintiff, the Appellate Gourt may render final judgment for the plaintiff. Whether the record contains any evidence tending to establish'a fact, is a question of law, for the court to decide.
    8. Same—presumption in support of judgment below. This court will not presume anything in favor of a judgment of the trial court which has been reversed by the Appellate Court, but will presume, until the contrary is made to appear, that the action of the Appellate Court was right.

      9. Where the Appellate Court reverses the judgment of the trial court, and certifies the facts found by it, we are to assume that it did so because it found the facts differently from the trial court. Whether such finding is correct, this court can not inquire.
    . Appeal from the Appellate Court for the First District;—. heard in that court on appeal from the Circuit Court of Cook county; the Hon. Kibk Hawes, Judge, presiding.
    Messrs. Millee, Lewis & Judson, for the appellant:
    The new evidence was known to the appellee at the time of the first trial, and having failed then to put it in, he should be held estopped from using it on the second trial. Hamilton v. Quimby, 46 Ill. 90; Rogers v. Higgins, 57 id. 244; Stockton v. Ford, 1 Blackf. 360; 18 How. 418.
    The purchase of property by a mortgagee at his own sale is not void, but voidable at the election of the mortgagor. Gibbons v. Hoag, 95 Ill. 45; Harper v. Ely, 56 id. 181; Jenkins v. Pierce, 98 id. 646; McHany v. Schenk, 88 id. 357; Hewitt v. Clark, 91 id. 605.
    It is also well'settled, that a sale which is merely voidable is such a change of title as defeats a recovery for a loss before the sale has been set aside. Wood on Fire Insurance, secs. 312, 315, 317; Flanders on Fire Insurance, p. 449; Power v. Insurance Co. 19 La. 28; Worthington v. Bearse, 12 Allen, 382; Savage v. Insurance Co. 52 N. Y. 502; Langdon v. Farmers’ Association, 22 Minn. 193; Foote v. Insurance Co. 119 Mass. 259; Insurance Co. v. Riker, 10 Mich. 279; Manufacturing Co. v. Insurance Co. 10 Ohio St. 347.
    The decision of this court reported in 102 Ill. 48, is conclusive on the parties everywhere. Newberry v. Blatchford, 106 Ill. 591; Hollowbush v. McConnel, 12 id. 203; Reed v. West, 70 id. 479; Smith v. Brittenham, 94 id. 624; Rising v. Carr, 70 id. 596; Cook v. Norton, 61 id. 285 ; Ogden v. Larrabee, 70 id. 510; Moshier v. Norton, 100 id. 74.

      The appellee’s failure to make proof of the loss was not waived, and is fatal to a recovery. Scammon v. Insurance Co. 101. Ill. 627; Gould v. Insurance Co. 80 id. 389; Frank v. Insurance Co. 29 Pa. St. 198; Killips v. Insurance Co. 28 Wis. 482.
    Mr. Wm. Allen Butler, also for the appellant.
    Mr. Charles F. White, and Mr. Martin L. Wheeler, for the appellee:
    Special clauses against alienation or change of title in insurance policies are to be construed strictly. Insurance Co. v. Spankneble, 52 Ill. 53; Insurance Co. v. Eddy, 55 id. 213; Lazarus v. Insurance Co. 5 Pick. 76; Strong v. Insurance Co. 10 id. 43 ; Stetson v. Insurance Co. 4 Mass. 330; Hoffman v. Insurance Co. 32 N. Y. 405; North Berwick Co. v. Insurance Co. 52 Me. 336; 3 Kent’s Com. 261.
    Provisions in policies prohibiting alienation or change of title to the property insured, are construed strictly, and nothing but an absolute transfer of the entire interest of the insured will avoid the policy. Courtney v. Insurance Co. 28 Barb. 116; Folsom v. Insurance co. 30 N. H. 231; Onell v. Insurance Co. 13 Gray, 431; Insurance Co. v. Hayes, 17 Ohio St. 432; Norcross v. Insurance Co. 17 id. 432; Ayers v. Insurance Co. 21 Iowa, 185 ; Gridley v. Insurance Co. 100 N. Y. 421; Insurance Co. v. Halfenstein, 48 Pa. St. 289.
    Under a clause in a policy of insurance, that it shall become void upon an alienation of the property, or upon any sale, transfer ór change of title, the giving of a mortgage, although the legal title is conveyed, is not an alienation or change of title. Jones on Mortgages, sec. 422; Insurance Co. v. Spankneble, 52 Ill. 53; Jackson v. Insurance Co. 23 Pick. 418; Insurance Co. v. Eddy, 55 Ill. 214; Price v. Tower, 1 Gray, 426; Pelland v. Insurance Co. 42 Me. 221; Smith v. Insurance Co. 50 id. 96; Masters v. Insurance Co. 11 Barb. 224; Shepherd v. Insurance Co. 88 N. H. 232; Dutton v. In

      surance Co. 9 Ford, (N. H.) 153; Rollins v. Insurance Co. 5 Fost. 200; Folsom v. Insurance Co. 10 id. 231; Insurance Co. v. Bruner, 23 Pa. St. 50; Conover v. Insurance Co. 3 Denio, 251.
    So, also, it is held, generally, that a conveyance which equity will treat as a mortgage, does not terminate the interest of the insured, or render the policy void, under the alienation clause. Holbrook v. Insurance Co. 1 Curtis C. Ct. 199; Hodges v. Insurance Co. 8 N. Y. 416; Titmore v. Insurance Co. 20 Vt. 546; Smith v. Insurance Co. 50 Me. 96.
    In accordance with this general rule of construction, the courts have uniformly held that a sale, transfer or change of title which does not cut off the right of redemption of the insured, does not avoid the policy, but that so long as he has the right to redeem, the policy will protect that right. Loy v. Insurance Co. 24 Minn. 315; Stephens v. Insurance Co. 43 Ill. 327; Brogg v. Insurance Co. 5 Fost. 289; Cone v. Insurance Co. 60 N. Y. 619; Insurance Co. v. Graybill, 74 Pa. St. 17; Strong v. Insurance Co. 10 Pick. 40.
    The rule is well settled, that an insurance company may waive the right to object to a want of formal proofs of loss, or to imperfect proofs. Insurance Co. v. Lewis, 18 Ill. 553; Transportation Co. v. Insurance Co. 34 Conn. 561; Insurance Co. v. Cary, 83 Ill. 453; McComas v. Insurance Co. 56 Mo. 573.
    So it is held, that where, by the policy, formal proofs are required, and the insurance company, after examination of the property, denies any liability, the company thereby waives the right to formal proofs of loss. Transportation Co. v. Insurance Co. 34 Conn. 561; Insurance Co. v. Taylor, 5 Minn. 492; Warren v. Insurance Co. 14 Wis. 318.
    Such waiver may be inferred from acts evincing a recognition of liability, or a denial of obligation exclusively for other reasons. (Insurance Co. v. Dougherty, 102 Pa. St. 570.) And where notice of loss is given, and proofs are furnished, and the company makes objection to making payment, all grounds of objection that might be taken and are not, are considered as waived, and the company can afterward insist only upon objections there taken. Insurance Co. v. Lewis, 18 Ill. 553, and cases there cited.
   Mr. Justice Wilkin

delivered the opinion of the Court:

At our March term, 1887, this case was before us on appeal from the Appellate Court for the First District. Two points were then made and urged as grounds of reversal, viz., change of title in .violation of the conditions of the policy sued on, and failure to furnish proofs of loss. These were considered, and, under the facts found and certified by the Appellate Court, held insufficient to authorize a reversal, and the judgment of the Appellate Court was affirmed. A petition for rehearing being presented by appellant, it was then urged that the Appellate ' Court had no jurisdiction to render final judgment in the case, and also that a third point of controversy was in issue before the circuit and Appellate courts, viz., whether or not a certain other policy issued by appellant on the same property, to one Babcock, was issued in lieu of the one in suit, by consent of appellee. It being found that this last question was fairly in issue, and the Appellate Court having failed to find and certify the facts thereon, a rehearing was granted, and the case reconsidered. The jurisdiction of the Appellate Court to render final judgment was sustained, but the cause was remanded to that court with directions. (See 123 Ill. 601.) In pursuance of that decision, the Appellate Court, on the 3d of July, 1888, entered judgment de novo in favor of appellee, for $8910 and costs, and in conformity with directions, a full statement of the facts, on all the issues, was certified to, and made part of the record. Appellant again appeals.

The record is precisely the same as on .the former hearing in this court, except that it now contains a finding of facts on the issue as to the substitution of the Babcock policy.

We have again considered all the questions involved in the case, and reconsidered the argument of counsel for appellant on the first two issues, and find no reason to change the conclusion heretofore announced thereon and. fully set forth in the opinion by Justice Scholfield filed prior to the rehearing, and on these questions that opinion is herewith re-filed and adopted.

It is again insisted that the Appellate Court erred in rendering final judgment, and it is argued that notwithstanding the power of that court to render such a judgment, as held in our former opinion,—123 Ill. 601,—it can only do so in cases where there is such a want of evidence on behalf of the defendant, as to justify a trial court in taking the case from a jury or direct a finding for the plaintiff. Here it is said there •is evidence tending to sustain the defense of failure to furnish proofs of loss, and also that of the substitution of the Babcock policy for the one sued on. It is assumed that on this last issue we have already held that there is a conflict of evidence. If that assumption is based upon anything heretofore said, there is a misconception of our meaning, for in the opinion remanding the case to the Appellate Court, we expressly stated that we were not allowed to look into the record and find what the facts were.

While under sections" 87 and 89 of the Practice act we have no authority to look beyond the finding of the Appellate Court to ascertain the facts, yet, as in case of the trial court having instructed the jury to return a verdict for the defendant, we may examine the bill of exceptions for the purpose of determining whether there is any evidence tending to prove the issue. What facts are established by the evidence the Appellate Court must find and certify, and its finding is conclusive. Whether or not the record contains any evidence tending to establish a fact, is a question of law, and which we must decide. In this view of the law, we have examined all the evidence bearing upon the questions involved, and given due consideration to the construction sought to be placed upon it by counsel in order to make it appear that there is such a conflict of testimony as to entitle the appellant to have the issues submitted ' to a jury, and we are satisfied that by no fair and impartial consideration of all the evidence can it be held that such conflict exists.

The only remaining question to which our attention need be directed is, did the Appellate Court, decide correctly on the facts found by it on the third point of contention above mentioned. On that defense the position of appellant is, that after the policy in suit was issued to appellee, and at a time when Babcock claimed to be the owner of the insured property, appellant issued its policy to him on the same property for the same amount, which last insurance was to be in lieu of that previously issued to appellee, and that such substitution was with the consent of appellee; that after the destruction of the insured property it paid the Babcock policy in full, and is therefore discharged fropa all liability on the one here sued on. On that issue the Appellate Court finds that such a policy was issued to Babcock, and on the assumption by appellant that the title to the insured premises was in Babcock, and that appellee, Scammon, had no title or interest therein; that on proofs of loss appellant paid said policy in full before this suit was brought; that said policy was not issued with the consent of appellee, Scammon, in lieu of the policy involved in this suit,'but without his consent, upon the assumption by appellant that he had lost all title to the insured premises, which assumption w'as never, in any way, acquiesced in by appellee. Besting the decision of the Appellate Court upon this state of facts, there could be no pretense that it was erroneous. No one would seriously contend that on such a state of facts the rights of appellee could be defeated.

The Appellate Court further finds, that in a chancery proceeding in which a sale of the insured property to Babcock was set aside, said Babcock was required to account to appellee for the said amount of insurance received by him under his policy, and thereby appellee had the benefit of said sum, but that it was not “claimed or received by Scammon as in lieu of or in satisfaction of the claim on the policy noiv in suit.” Various theories are attempted to be advanced by counsel for appellant upon this finding, under which it is claimed that the payment of the Babcock policy should be held to discharge all liability on the one issued to appellee. None of them can be maintained. Appellee had nothing to do with the issuing of that policy. He made no claim of rights under it. He could have done nothing to enforce it. He was in no way bound by anything done by Babcock or the mortgage company. He in no legal sense ratified anything done by him or it in procuring the policy. All that he had a right to do, and all that he did do, was to ask a court of equity to require Babcock to account to him for any money actually received by him under his false claim of ownership. This, a court of chancery had full power to grant, without any reference to the facts and circumstances under which the policy had been issued, and wholly independent of the fact as to whether appellee consented thereto or not. As between the parties, it was sufficient for the chancellor to know that Babcock had actually received money, as rent, insurance money or otherwise, under a claim of ownership which was fraudulent and invalid, to authorize a decree requiring him to pay it over to the rightful owner. Had the Babcock policy been issued and paid by an entirely distinct company, appellee’s right to demand, and the power of a court of chancery to require, the payment to appellee, would have been no more complete. Under the finding of facts by the Appellate Court, the two contracts of insurance are as distinct as though they had been issued by different companies, and as between appellee and appellant, the Babcock policy is no more available as a defense to this suit than if they had been so issued.

The decision of the Appellate Court, on the facts, is clearly right, and its judgment will be affirmed.

Judgment affirmed.

The following is so much of the opinion heretofore filed in this case, upon which a rehearing was granted, as is readopted by the foregoing opinion:

Mr. Justice Scholfield : ***** *

Counsel for appellant contend, that it appears upon this record, as it did when the case was here before, that there was a breach of the clause against alienation. The Appellate Court, in its opinion per Mr. Justice McAllister, 20 Bradw. 505, says on this question:

“First, then, as 'to the alleged breach of the condition of the policy against alienation. What is to be taken as .the true meaning, when the different clauses are construed together? All the authorities agree that such conditions must receive a strict construction, the court having in view the object of the insurance company in inserting them. The language in which the condition in question is expressed, is as follows: ‘If the property be sold or transferred, or any change takes place in title or possession, whether by legal process or judicial decree, or voluntary transfer or conveyance, * * * in every such case this policy shall be void. When property has been sold and delivered, or otherwise disposed of, so that all interest or liability on the part of the assured herein named has ceased, this insurance on said property shall immediately terminate.’ When both the above clauses are considered together, in the light of the rules to which we have adverted, it appears to us that the last clause was intended to explain and qualify the meaning of the words of the former, and define what sort or nature of transfer or conveyance of the property and change of title was contemplated and provided against. The character so given and intended was such a sale or disposition of the property as caused all interest of the assured in or control over the property to cease. That was the construction given to clauses in the same language, by the Court of Appeals of New York, in Browning v. Home Ins. Co. 71 N. Y. 513.
“In Ayres v. Hartford Ins. Co. 17 Iowa, 176, the court, in discussing what transfer or change of title would avoid the policy, held to the following sensible views: ‘The object of the insurance company by this clause is, that the interest shall not change so that the assured shall have a greater temptation or motive to burn the property, or less interest and watchfulness in guarding and preserving it from destruction by fire. Any change in or transfer of the interest in the property, of a nature calculated to have this effect, is in violation of the policy. But if the real ownership remain the same,—if there is no change in the fact of a title, but only in the evidence of it, and this latter change is merely nominal, and not of a nature calculated to increase the motive to burn or diminish the motive to guard the property from loss by fire,—the policy is not violated.’
“Loy v. Home Ins. Co. 24 Minn. 315, supports the same doctrine, and many other cases of the same import might be cited. The case of Orrell v. Hampden Fire Ins. Co. 13 Gray, 431, is in harmony with the same principles, for it holds that to constitute a breach of the condition of insurance relating to the conveyance of the property, there must have been an actual sale or transfer of the property, valid as between the parties. There is a 'vein of the same doctrine in Daily v. Westchester Fire Ins. Co. 131 Mass. 113. May on Insurance, sec. 273.”

But counsel for appellant say, that the two clauses of the policy thus brought together by the Appellate Court have no connection with each other,—that the latter clause relates exclusively to personal property. But it does not appear, here, that there is any specific insurance on personal property. The insurance is, “Five thousand dollars on the four-story and basement brick building, with metal roof, including steam heating and hoisting apparatus, if any.” The fixtures included appear to be such, only, as savor of the realty, and would therefore pass with a conveyance of the building. There is, it will be observed; no mention made of personal property, and although the words, “sold and delivered,” would seem to be more applicable to personal than to real property, yet when they are used with reference to real property, we have no difficulty in knowing what was intended. Beading the two clauses together, the conclusion is inevitable that it was intended that an alienation of the property, to avoid the policy, must be such that all interest or liability on the part of the assured therein named has ceased.

Bearing in mind that the manifest purpose of the clause is, as said by the Supreme Court of Iowa in the clause quoted from the opinion of the Appellate Court, supra, “that the interest shall not change so that the assured shall have a greater temptation or motive to burn the property, or less interest and watchfulness in guarding and preserving it from destruction by fire,” it is difficult to perceive how the insured whose property has been illegally sold, and who is entitled to have the sale declared void, occupies a different position than that occupied by him who owns a mere equity of redemption. This court held, in Roberts v. Fleming et al. 53 Ill. 196, a trustee under a mortgage containing a power of sale can not become a purchaser at his own sale, either directly or indirectly, by procuring another to purchase for his benefit; and if he does so become the purchaser, the rights of the mortgagor will remain precisely the same as though no sale had been made. The Appellate Court finds that such were the facts here, and so the interest of the insured remained, notwithstanding the sale, precisely as it was before.

In Stephens v. Illinois Mutual Fire Ins. Co. 43 Ill. 327, there was insurance obtained by a mortgagor. The mortgage was foreclosed under an agreement that the mortgagor should have two years from the date of sale in which to make redemption, the decfee itself, however, only providing for the statutory redemption. The property was destroyed by fire fourteen months and eight days after the sale. It was held the mortgagor had an insurable interest. The court said: “Notwithstanding, then, the decree directed a deed to be made at the end of fifteen months, it was the undoubted intention of the parties that the defendant should have two years for redeeming, and notwithstanding the commissioner’s deed, if the defendants in that suit had tendered the redemption money to the complainants within the two years, and in case of refusal had filed their bill, there can be no question, on the proof in this record, but that they would have been entitled to a decree for redemption. * * * The legal title passed by the commissioner’s deed, which was not made known till after the fire, but that legal title was held by the complainants subject to a right of redemption within two years from the sale. * * * It is objected for the defendant in error that the insurance company was no party to the agreement to extend the redemption for two years, and can not, therefore, be affected by it. The objection, however, is not tenable. The insurance company is sued on a policy. It defends by saying that the plaintiff, though he once had an insurable interest, has lost it through the foreclosure of a certain mortgage older than the plaintiff’s title. Now, whether the plaintiff has lost his title must depend on the proceedings in the foreclosure and sale. To determine this question these proceedings are put in evidence, and on examining them we find this agreement as a very material portion of that transaction, which the company has itself introduced to show a divestiture of title. The company seeks to show that the right of redemption was lost under a judicial sale, but the evidence offered by it shows it was not lost.” And in Aurora Fire Ins. Co. v. Eddy, 55 Ill. 219, when the property was insured, Eddy was only the owner of the equity of redemption, (Town then holding a mortgage on the premises,) and the loss, if any, was payable to Town, as his interest might show. Subsequently, the insured (Eddy) conveyed the premises, with other property, to Brown, and he, at the same time and as a part of the same transaction, gave back to Eddy a defeasance. This arrangement was made to enable Eddy to take np his mortgage to Town, which was done. It was held that this conveyance and defeasance only constituted a mortgage, and did not constitute an alienation of the property.

It is, however, contended that a sale which is merely voidable is such a change of title as defeats a recovery for a loss before the sale has been set aside, and this is claimed to be sustained by Flanders on Fire Insurance, 406, and Wood on Fire Insurance', see. 513. The language of Flanders is: “And where property was sold under a decree of the court, and after a loss had occurred the sale was set aside,' it was held that the insured could not recover.” He refers to Mt. Vernon Manf. Co. v. Summit Mutual Fire Ins. Co. 10 Ohio St. 347, Power v. Ocean Ins. Co. 19 La. 28, and Dadmun Manf. Co. v. Worcester Mutual Fire Ins. Co. 11 Metc. 429. In the first of these cases, the point decided is thus stated in the syllabus: “ Where personal property insured against loss by fire in a mutual insurance company, is sold by a master in chancery, in pursuance of a decree upon a mortgage given by the assured, and the proceeds of such sale are, by order of the court, applied to the satisfaction, pro tanto, of such decree, and the property insured is afterwards burned, the assured can not recover for the loss, although subsequently to such loss, and before the commencement of the action on the policy, the sale was, by consent of all parties thereto, set aside by order of the court under whose decree the sale was made. ” This is the reasoning of the court in its opinion, on page 364: “But two reasons are stated in the order for setting aside the sale: First, that the purchase money has not been paid; and second, that all parties consented thereto. The first reason could have no application to the sale of the personal property, for, there being no occasion for the payment of the purchase money as to it, its non-payment could afford no reason for setting it aside. The consent of all parties may have been a good reason to justify the action of the court in setting aside the sale as to those parties, but we can not rid ourselves of the impression that such action of the court, based upon and obedient to the will of parties, ■ought not to be permitted to affect the righis, previously fixed, of persons who were not parties, and whose interests were not consulted in the matter. It ought not to be in the power of the plaintiff, or of parties similarly situated, to escape the burden of assessments in case the injured property remained unscathed, and to insist on compensation in case of its destruction, at their mere will and pleasure.”

In Power v. Ocean Life Ins. Co. it was merely decided that ■where the assured sells property covered by the policy, and ■afterwards takes it back on account of the non-payment of her vendee, and is in possession at the happening of the loss, ■she will recover, although a clause in the policy provides that it shall be void in case of transfer or assignment without the consent of the insurers. The court, speaking of the clause against alienation, says, on page 31: “The nullity mentioned in the clause relied on by defendants was, in our opinion, intended and understood by the parties for the case, where, by sale or otherwise, an absolute transfer or termination of the interest of the insured should take place so as to leave him without interest at the time of the loss.”

In Dadmun Manf. Co. v. Worcester Mutual Fire Ins. Co. the ■only point decided having any relevancy is, that a corporation having made a conveyance in violation of a clause in an in■surance policy against alienation, can not be heard to say that such conveyance is void because fraudulent as to creditors.

Wood says: “A sale of premises or other property that is void from any cause, is not an alienation, within the meaning ■of the term as employed in the prohibitory clause of a policy, but a sale that is merely voidable is an alienation that defeats ■a recovery for a loss occurring .before _the sale has been set aside.” And he refers to Worthington v. Bearse, 12 Allen, (Mass.) 382; Lane v. Maine Ins. Co. 13 Maine, 44; Power v. Ocean Ins. Co. supra; Hooker v. Hudson River Ins. Co. 17 N. Y. 424; West Branch Ins. Co. v. Halfenstein, 40 Pa. St. 289.

This is the syllabus in Worthington v. Bearse: “If a mortgagor of a vessel sells his remaining interest therein, with a stipulation that he will pay off the mortgage, and fails to comply with this stipulation, and the bargain is accordingly given up and the title reconveyed to him, a policy of insurance issued to him before his agreement of sale will be valid to cover a loss of the vessel after the reconveyance of the title to him.”

In Lane v. Maine Mutual Fire Ins. Co., which is reported in 3 Fairfield, 44, the point pertinent here is thus stated in the syllabus: “In a policy of insurance against firé, it was stipulated that ‘when the property insured should be alienated, by sale or otherwise, the policy should thereupon be void.’ The insurance was on a store, and $200 on the stock of goods therein, for six years. During the existence of the policy, the assured sold all the goods and leased the store by parol to the purchaser, who continued to occupy the same, selling the goods, for about six months, when the assured took back both the store and the remaining stock of goods: Held, that this was not an alienation of the store within the meaning of the policy.”

What is decided in Power v. Ocean Ins. Co. has been already shown. Hooper v. Hudson River Ins. Co. has no bearing on the question. It decides, only, that application to an insurer for his consent to the assignment of a policy, is notice that the applicant has acquired, or is about to acquire, some-interest in the subject of insurance, since without such interest an assignment would b'e valueless to him.

The only point decided in West Branch Ins. Co. v. Halfenstein, that has any pertinency to the text in support of which it is cited, is: “In a policy obtained by a merchant upon his storehouse, and upon his stock of goods therein, each for a certain sum, there was a condition that in case of any transfer, partial transfer or change of title in the property insured, such insurance shall be void and of no effect, etc. He afterwards sold a part of his stock, without notice to or consent of the company, and leased the lower story of his store to the purchasers, occupying himself the second story and the cellar with the balance of his stock, which, at the time of the fire-, exceeded in value the insurance obtained on his goods: Held, that he had not forfeited his right to indemnity by failing to give notice of the partial sale, but was entitled to recover the amount of his insurance, it being upon merchandise, which is to be used for traffic and commerce, and not as property to be kept unchanged. The admission, under lease, of the purchasers of part of the stock, to the joint possession of the store building, was not a breach of the covenant, for the condition forbidding the transfer or change of title in the property insured, without the assent of the company, does not include a lease which changes only the possession.”

Counsel for appellant cite, on the same point, in addition to the foregoing, Savage v. Howard Ins. Co. 52 N. Y. 502; Langdon et al. v. Minnesota Farmers’ Association, 22 Minn. 193; Foote v. Hartford Fire Ins. Co. et al. 119 Mass. 259.

In Savage v. Howard Ins. Co. it was held, where a policy of insurance contains a condition that if the property be sold or transferred, or any change takes place in the title or possession, then the policy shall be void, a conveyance of the property avoids the policy, although simultaneously therewith a mortgage be taken back for the purchase money. This is directly in opposition to our ruling in Aurora Fire Ins. Co. v. Eddy, supra.

In Langdon v. Minnesota Farmers’ Association, where, by the terms of a fire policy, the sale or transfer of the insured premises, or a change in the title thereof by voluntary transfer or conveyance, cuts off all right of recovery upon the policy, a conveyance of the premises by the insured and his wife'to S., who reconveys to the wife, it was held operates to cut off such right of recovery, notwithstanding it appears that the convey-: anees were made as a substitute for a will devising the property to the wife, and that it was not the intention to divest the insured of the entire title, but that he was to retain, and did retain, possession and control of the property after the conveyances as before.

The ruling in Foote v. Hartford Fire Ins. Co., so far as affects the present question, is analogous to that in Savage v. Howard Fire Ins. Co., and is not more pertinent to the present question.

Not one of these cases, it will thus be seen, is analogous to the present case. In none of them is it held that a voidable deed, made by direction of a court or by a master in chancery, where the assured still has possession and the same interest in the property that he had before such deed was made, constituted an alienation of the property, within the meaning of the clause under consideration.

It may be conceded that there is strong reason in favor of holding, where a party has himself made a deed which he may avoid or not, as he shall elect, and a loss has occurred after he has made such deed and before he has elected to avoid it, that such an alienation, under a clause like that under consideration, avoids the policy, and especially so where there are interests urging against its avoidance on the one side, as well as in favor of its avoidance on the other. But these reasons have no application here. Under the facts found' by the Appellate Court, the case here, in brief, is simply this: A trust deed is made of property to secure a debt. Afterw-ards, the maker of the deed takes out a policy of insurance upon the same property, in which there is a clause prohibiting its alienation. The trustee, without his consent, and against his protest, sells the property to the cestui que trust. The maker of the trust deed is in possession when the deed is made, and remains in possession until after the sale, and until the property is destroyed by fire. He denies the validity of the sale, and asserts his right of possession and of ownership, and, within a reasonable time, institutes legal proceedings to set the sale aside. As to Mm, the sale is void, and he is entitled to redeem, notwithstanding the sale, and his interest since the sale is therefore just as great as it was before. The same motives which can be presumed to have urged him to protect the property and preserve it from destruction before the sale, urge him to protect and preserve it from destruction after the sale. The facts found place the value of the' property at four times the amount bid for the property at the sale, and there is no question of over-valuation for the purpose of the insurance. In our opinion, it must follow that the deed of the trustee was not such an alienation as is within the reasonable contemplation of the clause under consideration.

The judgment is affirmed.

Mr. Justice Bailey, having heard this case in the Appellate Court, took no part in this decision.


source: Caselaw Access Project

author: Mr. Chief Justice Craig

license: Public Domain

text:
    Dankmar Adler et al. v. The World’s Pastime Exposition Company et al.

      Filed at Ottawa November 15, 1888.

    1. Mechanic's lien—/or what services allowed. The statute gives no lien to an architect for keeping books, auditing accounts and making settlements with contractors employed in the erection of buildings, nor when a party performs labor as a supervising architect in the improvement of grounds and accessories.
    2. Same—contract as cm entirety—mcluMng matter not within statute. Where the contract is for the payment of a gross sum for the entire labor agreed to be performed,—that for which the statute gives a lien as well as for that labor for which no lien is given,—the lien can not be enforced as to any part of the price to be paid. The contract, in such case, being entire, can not be apportioned, and the performance of it enforced in fragments..

      3. Same—requisites of contract, as to time of performance. Where it does not appear by the contract, where there is an express one, that the labor was to be performed within three years from the commencement thereof, there will be no lien. Where the contract is express, it must show that the services are to be performed within that time, or there will be no lien.
    Appeal from the Appellate Court for .the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    . Messrs, Moses & Newman, for the appellants.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was a petition brought by the appellants, against the World’s Pastime Exposition Company, and others, to enforce a mechanic’s lien. The contract under which the services were performed for which a recovery is sought, was in writing, and is as follows:

“Chicago, April 27, 1886.
“To the World’s Pastime Exposition Co., for a compensation of five thousand (5000) dollars, we propose to furnish preliminary sketches, complete working drawings and specifications, and general superintendence of building operations, and also to audit and make settlements of all accounts for an exposition building, pavilion and grand stand, and other small buildings, to be erected for the World’s Pastime Exposition on the grounds of the Cheltenham Improvement Co., Hyde Park, Illinois, and also to act as supervising architects of the general arrangement and improvement of grounds and accessories during the ' summer of 1886,—terms of payments to be as follows: Fifteen hundred (1500) dollars cash June 1, 1886, and fifteen hundred (1500) dollars cash upon the completion of the buildings and the settlement of all contracts.'
“In all transactions between yourself and contractors we are to act.as your agents; and our duties and liabilities in this connection are to be those of agents, only.
“We guarantee the correctness of our drawings and accounts, and our'calculations of strength of material and stability of structure, but our pecuniary liability in connection with this building is not to exceed, in its total, the' gross amount of our ■compensation.
“A representative of our firm will make visits to the building, for the purpose of general superintendence, of such frequency and duration as in our judgment will suffice or may be necessary to fully instruct contractors, pass upon the merits of material and workmanship, and maintain an effective working organization of the several contractors engaged upon the •structure.
“We will keep upon our books a full and complete record ■of all matters connected with this building, and ledger accounts ■of all contracts and payments. Drawings and specifications .are instruments of service, and as such are to remain our property.
“It is part of this proposal, that of the total compensation ■of five thousand (5000) dollars, three thousand (3000) dollars .are payable in cash, as above stipulated, and the remaining two thousand (2000) dollars are payable in full-paid shares ■of the capital stock of the World’s Pastime Exposition, certificate for same to be delivered to us, at our option, on or after July 1, 1886.
Adler & Sullivan, Architects.

The petition, among others, contains the following averment: ■“That after the making of said contract, on and after the 29th •of April, 1886, and in compliance with the terms and provisions of the same, complainants commenced the work under •said contract, and furnished to said company the sketches, ■drawings and specifications therein mentioned and described, and proceeded to, and did, superintend the erection and completion of said buildings and structures, and did make settlements of all accounts, and did all other things requisite of them, by the terms of said contract, in reference to said buildings, and so continued their duties, under such contracts, until all of such buildings and structures were completed and finished, and all contracts relating to the same settled, according to the terms and provisions of said contract.”

To the petition the defendants interposed a general demurrer, which the court sustained, and entered an order dismissing the petition at the cost of complainants. The judgment of the circuit court, on appeal, was affirmed in the Appellate Court, and to reverse that judgment this appeal was prosecuted.

Section 1 of chapter 82 of the statute entitled “Liens,” provides, “that any person who shall, by contract, express or implied, or partly expressed and partly implied, with the owner of any lot or piece of land, furnish labor or materials, or services as an architect or superintendent, in building, altering, repairing or ornamenting any house or other building, or appurtenance thereto, on such lot, or upon any street or alley,, and connected with such building or appurtenance, shall have a lien,” etc. Section 3 of the act provides, that “when the contract is expressed, no lien shall be created if the time stipulated for the completion of the wprk or furnishing materials-is beyond three years from the commencement thereof.”

This case may be disposed of in a few words. Upon an-examination of the contract set out in the petition, it will be found that the statute provides no lien whatever for a portion of the labor agreed to be performed. In this regard the contract reads: “We will keep upon our books a.full and complete record of all matters connected with this building, and ledger accounts of all contracts and payments.” Again, in-the first part of the contract they agreed “to audit and make-' settlements of all accounts for an exposition building, pavilion' and grand stand, and other small buildings, to be erected for' the World’s Pastime Exposition on the grounds of the Cheltenham Improvement Co., Hyde Park, Illinois, and also to act as supervising architects of the general arrangement and improvement of grounds and accessories during the summer of 1886.” The statute confers no lien for keeping books, auditing accounts, and making settlements with the various contractors who might have contracts in the erection of a building. Nolis any lien conferred where a party performs labor as a supervising architect in the improvement “of grounds and accessories.” This labor is but the work of a landscape gardener, for which the legislature has not seen proper to confer a lien.

In connection with what has just been said, it will be observed that under the contract the petitioners were to be paid for the entire labor agreed to be performed,—that for which the statute confers a lien, as well as that for which no lien is given,—the sum of $5000. The contract is entire. There is no way in which it can be determined what portion of the $5000 shall be paid for a part of the services rendered, and what part shall be paid for another part of such labor. The entire sum named,—the $5000,—is to be paid for the entire amount of labor to be performed under the contract. The result is, as an entire contract it can not be. enforced in this proceeding, for the reason that no lien is given for a part of the labor to be performed under the contract. On the other hand, the contract can not be enforced as to that part of the labor performed for which a lien is conferred by the statute, because the contract is entire, and an entire contract can not be apportioned, and the performance of it enforced in fragments. Crosby v. Loop, 14 Ill. 330; 2 Parsons on Contracts, 519, and note.

There is another fatal-objection to the contract set out in the petition. It does not appear, by the contract, as we understand it, that the labor was to be performed, for which a lien is claimed, within three years from the commencement thereof. Where the contract relied upon is express, this is, an essential element, which the contract must contain in order to obtain the lien provided in the statute, as held by the" court in a number of cases. Cook v. Heald, 21 Ill. 425 ; Belanger v. Hersey, 90 id. 71.

From what has been said, it follows that the decision of the court in sustaining the demurrer to the petition was right, and the judgment of the Appellate Court will be affirmed.

Judgment affirmed.

Mr. Justice Bailey, having heard this case in the Appellate Court, took no part in this decision.


text:
    William H. Kellogg v. Noel B. Boyden.

      Filed at Ottawa November 15, 1888.

    1. Allegations and bbooes—in suit on replevin bond. The breach laid in a declaration on a replevin bond need not be broader than the condition in the bond, nor the proof more extensive than the breach. The judgment ordering the return of the goods is proof that the goods mentioned in the bond and the writ were taken, even though the description of the goods in the bond, and in the officer’s return, to the writ, are not identical, being more complete in the return than in the bond and writ.
    2. In such a case, the surety, who alone was served with process, pleaded that the goods alleged to have been taken -under the writ were not the goods mentioned and described in the bond, but were other and different goods. The plaintiff gave in evidence the replevin bond, the replevin writ, with the officer’s return, the judgment dismissing the replevin suit and ordering a return of the property, and made proof of the value of the goods: Held, that this proof, under the issues, made a prima facie case entitling the plaintiff to recover the value of the goods not returned.
    3. Instbuction—■not based on evidence. Where no proof is offered in support of an issue tendered by a plea, the court, in instructing the jury, may properly ignore the defense stated in such plea.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Mr. B. M. Saunders, for the appellant.
    Messrs. Flower, Remy & Holstein, for the appellee.
   Mr. Justice Wilkin

delivered the opinion of the Court:

Action of debt on replevin bond. The declaration is in the usual form, averring a condition of the bond to be, that the plaintiffs in the replevin suit should prosecute that suit with effect, and without delay, and make return of the replevied property, if return thereof should be awarded, and assigning ás a breach thereof, that although the plaintiff herein took and delivered the same to the said plaintiffs .in execution of said writ, yet they did not prosecute their suit with effect and without delay, but therein wholly failed, and that judgment was rendered therein, dismissing the same at their costs, and a writ of retorno habendo awarded, yet they have not returned the property so replevied, or any part thereof.

. Among other pleas, appellant, who alone was served with process, filed the fourth, in which he avers “that the said goods and chattels in said declaration alleged to have been taken by virtue of the writ of replevin therein mentioned, were not the goods and chattels mentioned and described in the said writing obligatory in the said declaration alleged to have been given by this defendant, nor were any part thereof, but the said goods and chattels mentioned as having been taken by virtue of said writ of replevin were other and different from those mentioned in said declaration.” Appellee joined issue on this plea, and on it arises the principal controversy in this court, appellant claiming that the proof fails to establish the identity of the property, and that the instructions given on behalf of appellee are erroneous, because they ignore the defense therein set up.

The plea should have been disposed of by demurrer. . There is, however, no evidence in the record to support it. Appellee introduced the bond sued on; the replevin writ, with the coroner’s return; the judgment of the circuit court dismissing the replevin suit and ordering a return of the property; and proof of the value of the goods taken. This, under the issues, ma’de a prima facie case, entitling him to judgment for the value of the goods replevied and not returned. The breach in a declaration on a replevin bond need not be broader than the condition in the bond, nor the proof more extensive than the breach. (Peck et al. v. Wilson, use, etc. 22 Ill. 206.) Proof that the goods mentioned in the bond and writ were taken, was made by the introduction of the judgment of the circuit court ordering their return to the defendants.

Appellee seems to base his argument upon the assumption that the coroner’s return to the replevin writ proves that the goods taken were not the same as those described in the bond, and that therefore appellee overcame, his piima facie case by offering that return in evidence. This position is not tenable. The goods described in the bond and writ were cloths. The goods taken by the coroner, as shown by his return, were qlsocloths. In the bond and writ they are described by numbers, - only. In the return, the number of yards in each piece is given, with numbers. The description of the goods in the bond and return is not identical, but there is nothing whatever in the return tending to show that the goods themselves are not. There is no proof furnished by appellant on this issue, therefore there is an entire absence of all evidence to support the plea, and the court below properly ignored it in giving instructions to the jury.

The decision of the Appellate Court has settled all controverted questions of fact against appellant. The instructions fairly present the law of the case as made by the proofs.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.

Mr. Justice Bailey, having heard this case in the Appellate Court, took no part in this decision.


text:
    Charles P. Willard v. Adolph Swansen.

      Filed at Ottawa November 15, 1888.

    1. - Negligence—ordinary care by the plaintiff—an essential element. In an action to recover for injuries resulting from the alleged negligence of the defendant, the plaintiff can not recover unless it appears, from the evidence, that he exercised ordinary care,—such as a reasonably prudent person will always adopt for his own safety. The fact that the defendant may have been guilty of gross negligence, does not, of itself, authorize a recovery. A duty always rests on the injured party to exercise ordinary care ; and unless that duty has been observed, a recovery can not be had,—in other words, ordinary care is an essential •element on the part of the injured party to authorize a recovery.
    2. Same—the rule as to comparative negligence—whether correctly stated. An instruction, in substance, that the plaintiff, although guilty of some negligence, may recover, if the negligence of the defendant was gross, and the negligence of the plaintiff was slight in comparison' with that of the defendant, is not a correct statement of the doctrine of •comparative negligence. In order to state the rule correctly, the element of ordinary care required of the plaintiff should be given.
    3. Instruction—error obviated by others in the series. In an action to recover for an injury resulting from negligence, the court instructed the jury, that although they might find, from the evidence, that the plaintiff was guilty of some negligence contributing to the injury, and was not free from negligence on his part, this would not prevent a recovery, provided the defendant was guilty of gross negligence, so that plaintiff’s negligence was slight in comparison with defendant’s, which was gross. This was held erroneous, but as the plaintiff’s first instruction required the jury to find, as a condition to a recovery, that the plaintiff exercised ordinary care, and the same doctrine was distinctly .announced in four of the defendant’s instructions stating the rule correctly, it was held, that the jury could not have been misled by the -erroneous instruction.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Rollin S. Williamson, Judge, presiding.

      Messrs. Ewing, Collins & Ewing, for the appellant:
    The doctrine of contributory negligence is not correctly stated in appellee’s second instruction. Before a recovery for personal injury can be had in a case of contributory negligence, where the act of the defendant is not willful, it must appear that the negligence of the plaintiff is slight and the negligence of the defendant is gross, and that the negligence of the parties, respectively, appears to be slight and gross, when compared with each other. Railroad Co. v. Jacobs, 20 Ill. 478; Railroad Co. v. Grimes, 13 id. 585; Railroad Co. v. Johnson, 103 id. 512; Railroad Co. v. Avery, 109 id. 314; City of Rockford v. Russell, 9 Bradw. 229; Bank v. Eitemiller, 14 id. 22; Moody v. Peterson, 11 .id. 180; Railroad Co. v. Jones, 5 id. 607; Iron and Steel Co. v. Martin, 115 Ill. 358; Railroad Co. v. Goddard, 72 id. 567.
    Appellant’s ninth instruction as asked, is a correct statement of the law, and should have been given. If the plaintiff’s negligence was not slight, although defendant was guilty of extreme and gross negligence, there could be no recovery.
    The appellee was not in the exercise of ordinary care at the time of his injury, and consequently can not sustain his judgment, even if appellant’s negligence was gross. Pennsylvania Co. v. Lynch, 90 Ill. 335; Myers v. Railroad Co. 113 id. 386; Sinclair v. Berndt, 87 id. 176; Railway Co. v. Britz, 72 id. 256; Bolt and Iron Co. v. Burke, 12 Bradw. 372; Railroad Co. v. Hetherington, 83 Ill. 510; Railway Co. v. Hatch, 79 id. 137; Bloomington v. Read, 2 Bradw. 542.
    Mr. I. K. Boyesen, for the appellee:
    It is not claimed that plaintiff could recover if he was not in the exercise of ordinary care, but it is not necessary to set forth that principle in each and every instruction. Railroad Co. v. Ingraham, 77 Ill. 313; Walker v. Collier, 37 id. 362; Yundt v. Hartrunft, 41 id. 9.

      That principle being so fully stated in the other instructions, its omission in plaintiff’s second instruction could not have misled. Railroad Co. v. Johnson, 116 Ill. 210.
    That instruction is', however, in exact conformity with the rulings of this court. Chicago v. Stearns, 105 Ill. 557; Railway Co. v. Dimick, 96 id. 47; Railway Co. v. Clark, 70 id. 278; Railroad Co. v. O’Conner, 13 Bradw. 64; Railroad Co. v. Johnson, 116 Ill. 209.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

The appellant, Charles P. Willard, in the month of May, 1885, occupied the sixth floor of a building on Michigan street, Chicago, and was engaged in the manufacture of steam engines, bridge materials, and various implements and iron articles. Adolph Swansen, appellee, was a machinist, and as such was employed in appellant’s shop. His duty was to work in the shop from six o’clock in the evening until six in the morning. The appellant’s shop contained many pieces of machinery, among others a buzz saw. On the seventh night of appellee’s service in the shop, while in the act of getting some loose paper that was near to or under the buzz saw, which he intended to use in making a fire in another part of the shop, his left hand came in contact with the saw, which was in motion, resulting in the loss of a part of one finger, and a slight injury to two others. This action was brought to recover damages sustained on account of the injury.

The declaration contains two counts, substantially alike, averring that the defendant negligently permitted the buzz saw upon which appellee was hurt, to be revolving and in operation at night, in an insufficient light, without any guard around the same, without any person actually using the same, and without providing a loose pulley on the saw-shaft; that while he was so in the pursuit of his employment in said shop or factory of the defendant, and was in the exercise of ordinary care on his part, he accidentally came in contact with said saw, ■and had one finger of his left hand cut off, and two others so seriously maimed, cut and injured, as to make them stiff and useless for life, by reason of which, etc. To the declaration the defendant pleaded the general issue. A trial was had before a jury, which resulted in a verdict and judgment in favor ■of the plaintiff. On appeal, the judgment was affirmed in the Appellate Court. To reverse that judgment the defendant has .appealed to this court.

Two alleged errors are relied upon to reverse the judgment: Hirst, the court erred in giving plaintiff’s second instruction; and second, the court erred in modifying defendant’s ninth instruction.

The second instruction given on behalf of plaintiff, which is complained of, is as follows:

“You are further instructed, that even though you find, from the evidence, that the plaintiff was guilty of some negligence contributing to the injury testified about, and was not free from negligence on his part, this will not prevent him from • recovering in this action if he is otherwise entitled to recover, provided that you believe, from the evidence, that the defendant was guilty of gross negligence contributing to the injury testified about, so that the negligence of the plaintiff, if any, was slight in comparison with that of the defendant, if any, and the negligence of the defendant, if any, was gross in comparison with that of the plaintiff, if any, and that such negligence, of the defendant, if any, produced the injury complained of.”

It is contended that the instruction docs not correctly state the doctrine of comparative negligence; that, in a case of this character, before a plaintiff can recover, it must appear that his negligence was in fact slight,—not merely slight as compared with defendant’s negligence, but slight in and of itself, • in view of and as related to and affected by surrounding circumstances. Where the injury is not willful, the law is well settled that a party can not recover for an injury received, unless it appears, from the evidence, that he exercised ordinary care,—such care as a reasonably prudent person will always adopt for the security of his person. This doctrine was announced at an early day in this court, in Galena and Chicago Union Railroad Co. v. Jacobs, 20 Ill. 488, and it has been reiterated in numerous cases since. (Chicago, Burlington and Quincy Railroad Co. v. Johnson, 103 Ill. 517.) The fact that the defendant may have been guilty of- gross negligence, does not, of itself, authorize a recovery. A duty always rests on the injured party to exercise ordinary care, and unless that duty has been observed, a recovery can not be had,—in other words, ordinary care is. an essential element on the part of the injured party, to authorize a recovery. But that element was omitted from the instruction, and the jury were, in substance, told, that the plaintiff, although guilty of some negligence, might recover, if the negligence of the defendant was gross, and the negligence of the plaintiff was slight in comparison with the negligence of the defendant. We do not regard this as a correct proposition of law, or as a correct annunciation of the doctrine of comparative negligence. The plaintiff may have failed to exercise ordinary care when his acts and conduct are considered in the light of all the evidence, and yet, under the terms of the instruction, he might recover if his negligence was only slight when compared alone with that of defendant.

In considering the doctrine of comparative negligence, expressions may be found in several cases which might seem to sustain the instruction, where it has been said, in a general way, that an injured party guilty of slight negligence may recover, where the negligence of the defendant was gross, and the negligence of the plaintiff slight in comparison with the negligence of the defendant; but it has always been understood, and the declaration has always been made with the understanding, that in no case can a recovery he had unless the person injured has exercised ordinary care for his safety.

We think the instruction, as proposed, was incorrect, and it should not have been given. We also think defendants ninth instruction was correct, and it ought not to have been modified.

But conceding that ‘the court erred in the two instructions, if it is apparent that the jury were not misledj the judgment-ought not to be reversed. Upon an examination of the record it will be found that plaintiff’s first instruction required the jury to find, from the evidence, as a condition to a recovery, that plaintiff, when injured, was in the exercise of ordinary care. In the defendant’s first charge the jury were told, that-before the plaintiff can recover, it must appear, from the evidence, that there was no want of ordinary care and prudence on the part of the plaintiff, contributing to his injury. In the second charge the jury were told that the law will not allow the plaintiff to recover for an injury occasioned by his own negligence, or failure to exercise ordinary care and prudence for his own safety. The same principle, in different language, is announced in defendant’s third and fourth charge to the jury. Indeed, the doctrine that the plaintiff could not recover unless it appeared, from the evidence, that he was in the exercise of ordinary care, was so clearly and directly stated to the jury, both in the one instruction of plaintiff, and in at least four given in behalf of defendant, that it is incredible to believe the jury were misled on this branch of the law. If we are correct in this, no ground exists for a reversal of the judgment.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.