author: Mr. Justice Bakeb

text:
    Julia Ann Cruse v. Caroline Aden, Admx.

      Filed at Mt.Vernon January 26, 1889.

    1. Intoxicating liquobs—sale or gift thereof-^-mot actionable at common law. By the common law it is not a tort, for which an action lies, to either sell or give away intoxicating liquors, and such an act, at. the common law, is not culpable negligence that will impose a legal liability for damages upon the vendor or donor of such liquor. The right to recover damages for such an act is purely statutory.
    2. Same—injury to means of support, by sale or gift—right of action, against whom—under the. Dram-shop act. Section 9 of the Dram-shop act does not apply to persons who are not, directly or indirectly, or in any way or to any extent, engaged in the liquor traffic; and the right of áction therein given to one injured in her means of support is not intended to be given against one who, in his own house, or elsewhere, gives a glass of intoxicating liquor to a friend as a mere act of courtesy or hospitality, and without any purpose or expectation of pecuniary gain or xirofit.
    3. Under section 13, article 4, of the constitution of 1870, providing that no act shall embrace more than one subject, which shall be expressed in its title, and making void all provisions not so expressed, section 9 of the Dram-shop act, entitled “An act to provide for the licensing of and against the evils arising from the sale of intoxicating liquors,” if intended to render a person liable to an action for damages who is not engaged, either directly or indirectly, in selling intoxicating liquors, but who merely gives a drink or two of wine, beer or other liquor to a guest, friend or neighbor, as a mere act of courtesy or hospitality, would be void, as not being expressed in the title. But the matters contained in sections 6,9 and 13, if limited to those who are in some way connected with the liquor traffic, are apxiropriate and germane to the subject expressed in the title of the act.
    4. In determining the scope of the statute relating to dram-shops, and arriving at the true intent of its several provisions, not only the title of the act should be taken into consideration, but every other part of the same statute should be considered, for the real object and intention of the legislature are to be gathered from an examination and comparison of the context of the whole act, thereby ascertaining its spirit, import and meaning.

      5. The Dram-shop act is a statute of a highly penal character, and provides rights of action unknown to the common law, and should therefore receive a strict construction.
    6. Construction of statutes—enlarging or restricting the meaning-of words. In the construction of a statute, the courts are not confined to the literal meaning of the words of the statute, but the intention may be collected from the necessity or object of the act, and its words may be enlarged or restricted according to its true intent.
    . 7. Same—the title of an act—as aiding in its construction. The title of an act, especially when there is a constitutional provision that no act shall embrace more than one subject, and that shall be expressed in its title, and declaring void all provisions therein not so expressed, may very properly be regarded in seeking to ascertain the legislative intention and the real meaning of such act.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Union county; the Hon. Oliver A. Harker, Judge, presiding.
    On the 4th day of November, 1884, George A. Cruse, husband of appellant, Julia Ann Cruse, was, while intoxicated, thrown from his horse, and received injuries from which he shortly afterward died. Thereupon, said Julia Ann Cruse, his widow, prosecuted this suit in the circuit court of Union county, against Adde Aden, since deceased, and obtained against him judgment for $800 damages. The suit was brought to recover damages for injury to the plaintiff’s means of support, and the declaration concluded, “and by force of the statute in such case made and provided, an action has accrued to her against defendant for the recovery of her said damages in the premises, and therefore she brings her suit,” etc. Upon the appeal of the said Adde Aden to the Appellate Court for the Fourth District, the judgment of the circuit court was reversed, and the final order and judgment of said Appellate Court found and recited the facts of the case to be as follows:
    “Julia Ann Cruse, appellee, and plaintiff below, at the time of the commencement of her suit, was the widow of George A. Cruse, who died intestate; that during his life he furnished means of support to said appellee, and died intestate, leaving a farm and other property of which he died seized and possessed ; that in his lifetime he carried on his farm, and was a strong and able-bodied man, capable of working as a farmer up to the time of his death; that by his death his widow was injured in her means of support; that the proximate cause of the accident which resulted in his death was intoxication, and that two drinks given him by appellant contributed to cause such intoxication; that said two drinks of intoxicating liquor were given to said husband of appellee by appellant as an act of mere courtesy and politeness, and not for any pay, profit, benefit or advantage to appellant, or intended by appellant to gain for him any pay, profit, benefit or advantage, and that appellant and said husband of appellee, at the time said two drinks were so given, were friends and acquaintances, and appellant was not then engaged, directly or indirectly, in the sale or traffic in intoxicating liquors.”
    Upon application of said Julia Ann Cruse, appellee in the Appellate Court and appellant here, the Appellate Court certified that “the case involves questions of law of such importance, on account of principal and collateral interests, as that it should be passed upon by the Supreme Court, ” and granted to said Julia Ann Cruse an appeal to this court, which was duly perfected. Said Appellate Court further certified to this court the following grounds for granting said appeal, to-wit:
    “First—That said Supreme Court may pass upon and decide whether or not, under section 9 of the Dram-shop act of this State, a recovery can be had against a person other than a dram-shop keeper, or person who makes a business of dealing in intoxicating liquors, and whether, under said section 9, all persons, though not engaged in the liquor traffic, can be held liable for selling or giving intoxicating drinks to another, thereby, in whole or in part, causing intoxication and injury, etc.
    “Second—Whether or not, upon the facts found by this court in its judgment of reversal, a recovery can be had under said section 9, by appellee, against appellant.”

      Since the pendency of the appeal in the Supreme Court, the death of the said Adde Aden has been suggested, and Caroline Aden, his administratrix, has been substituted as appellee in his place and' stead.
    Mr. W. S. Day, for the appellant.
    Mr. Monboe C. Cbawfobd, and Mr. H. F. Bussey, for the appellee.
   Mr. Justice Bakeb

delivered the opinion of the Court:

If we rightly apprehend one of the claims made by counsel for apjiellant in his argument presented to this court, it is this: that it is not the character of the transaction or of the individual that controls the right of action involved in this suit; that such right of action existed before the statute ivas enacted; that every person is answerable, under the law, for an injury done to another, and that section 9 of the Dram-shop act simply saves all remedies, and even enlarges them, so that it can not be claimed that dram-shop keepers are exempt from damage suits of the character here in question, simply because they are operating under a license from public authority, for which they have paid large sums into the public treasury. This position is not tenable. It was not a tort, at common law, to either sell or give intoxicating liquor to “a strong and able-bodied man,” and it can be said safely, that it is not anywhere laid down in the books that such act was ever held, at common law, to be culpable negligence, that would impose legal liability for damages upon the vendor or donor of such liquor. The present suit can in no sense be regarded as an action of tort at common law. Meidel v. Anthis, 71 Ill. 241.

The cause of action, here, is necessarily purely statutory, and the question whether it is a valid cause of action must depend upon the proper construction of section 9 of the Dram-shop act.

It is admitted by counsel for appellant, that the various sections and provisions of the Dram-shop law, except sections 6 and 9, are directed exclusively against dram-shop keepers, and those engaged, lawfully or otherwise, in the liquor traffic; but it is insisted, in substance, that as the 6th section denounces a penalty against “whoever” “shall sell or give intoxicating liquor to any minor,” “or to any person intoxicated or who is in the habit of getting intoxicated,” and that as the 9th section provides, in express terms, that “every husband, wife, child, parent, guardian, employer, or other person who shall be injured in person or property or means of support by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving intoxicating liquors, have caused the intoxication, in whole or in part, of such person or persons,” and that as these sections, respectively, use the words “sell or give,” and the phrase “by selling or giving,” there is no occasion for construing such language,—it needing no construction; and that the plain intention of section 6 is to protect minors, intoxicated persons and habitual drunkards from either sales or gifts of intoxicating liquors,—not on the ground the giver is a dram-shop keeper, but for the protection of the minor, intoxicated person and drunkard, and family, and that section 9 is intended to provide a remedy for those who are injured in person, property or means of support by the conduct of others, be they dram-shop keepers or other persons.

Section 13 of article 4 of the constitution of 1870 provides: “No act hereafter passed shall embrace more than one subject, and that shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.” In the Revised Statutes of 1874 the title of the act under consideration is “Dram-Shops,” and the title of the act in full is, “An act to provide for the licensing of and against the evils arising from the sale of intoxicating liquors.” If the intent and scope of said sections 6 and 9 are as broad as the contention of appellant claims they are, and include the acts of a person who is not engaged, either directly or indirectly, in selling intoxicating liquor, but who merely gives at his private residence, or elsewhere, a drink or two of wine, beer or other liquor to a guest, friend or neighbor, as a mere courtesy or act of politeness, and without any consideration whatever, pecuniary or otherwise, then it would seem such sections would, to the extent they include such acts of such person, be in violation of the constitutional provision we have cited, and void. The matters contained in said sections 6 and 9, and in section 13, even including the provisions in respect to gifts of intoxicating liquors, if limited to those who are in some way connected with the sale of intoxicating liquor, legitimately appertain and are germane to the subject expressed in the title of the act; but in respect to mere gifts of liquor by persons not connected, directly or indirectly, with the liquor traffic or with any sale of liquor, it can not fairly be said such gifts by them are embraced or expressed in such title.

. But we do not think said sections, or either of them, when properly interpreted, are'in any respect whatever invalid. The title of an act, and especially where there is a constitutional provision such as we have above mentioned, may very properly be regarded in seeking to ascertain the legislative intention and the real meaning of such act. Both the general title, “Dram-Shops,” and the title of the act itself,-indicate that the various provisions of the statute are aimed at dram-shops, and at those who are engaged, either lawfully or unlawfully, directly or indirectly, in the liquor traffic. In determining the scope of the statute, and arriving at the true intent of its several provisions, not only should the title of the act be taken into consideration, but every other part of the same statute should he considered, for the real object and intention of the legislature are to be gathered from an examination and comparison of the context of the whole act, thereby ascertaining its spirit, import and meaning. People v. Canal Comrs. 3 Scam. 153; Perteet v. People, 65 Ill. 230; Biggs v. Clapp, 74 id. 335.

It is admitted, as we have seen, that all the other sections of the statute now in question, except the sixth and ninth, apply exclusively to dram-shops, and those who make a sale or sales of intoxicating liquor. It seems useless, therefore, to analyze and examine said several sections, for the purpose of demonstrating and showing the general scope of the statute. In three, only, of the sections of the act is any notice taken of “gifts” of liquor. The 13th section provides, that “the giving away of intoxicating liquors, or other shift or device to evade the provisions of this act, shall be held to be an unlawful selling.” If in this section the words, “the giving away of intoxicating liquors * * * shall be held to be an unlawful selling,” are construed as meaning that the mere act of giving away intoxicating liquor by any person is an unlawful selling, then it would not only leave the remaining clause, “or other shift or device to evade the provisions of this act,” without significance, but it would render any person who, at his own table at his private residence, gave a glass of wine to a guest as an act of hospitality, liable to the fines and penalties imposed by section 2 of the act, without such person had a license to keep a dram-shop. It is unreasonable to suppose such result was contemplated. Said section 13 does not, in express terms, say that it is applicable only to persons engaged in the liquor traffic; and yet it is plain, from the context, that only such persons are within its purview, and that in respect to them, and them only, a “giving away of intoxicating liquors” is regarded as a “shift or device to evade the provisions” of the act.

It is but reasonable to presume, since there is nothing in the context to rebut such presumption, and it is in conformity with the title and general scope of the act, that the legislature, in using these words “give” and “giving,” in these three sections of the same act, intended they should have one and the same meaning. Since the expression, “the giving away of intoxicating liquors,” found in section 13, has reference only to those who are engaged or participate in the liquor traffic, or make a sale or sales of liquor as a matter of business, we may conclude the expression, “sell or give intoxicating liquor,” found in section 6, and the expression, “against any person or persons who shall, by selling or giving intoxicating liquors,” found in section 9, have a like restricted sense and signification.

This court, some years ago, virtually decided the question here at issue, in respect to the construction to be given the words, “against any person or persons who shall, by selling or giving intoxicating liquors,” contained in section 9, by the construction it gave to the words, “whoever shall sell or give intoxicating liquor,” contained in section 6. The first mentioned set of words are no broader or more inclusive than the latter, and it is evident that both expressions stand upon the same footing. In Albrecht v. The People, 78 Ill. 510, it was held that the provisions of section 6 do not apply to a person who, at his private house, and as an act of hospitality, gives a glass of beer to a visitor or friend alleged to be intoxicated, and that such a case was not one contemplated by said section. The decision in the later case of Johnson v. The People, 83 Ill. 431, did not, as seems to be supposed, overrule the decision in the Albrecht case. In the Johnson case it was held, that whether a person is or is not the keeper of a dram-shop, he can not sell intoxicating liquors to minors without incurring the penalties prescribed by said section 6 of the statute, and further held, that a person employed in making change for parties engaged in unlawfully selling intoxicating liquors to minors may be convicted, on indictment, for selling the liquors, on the ground he aided, abetted and assisted in such sales. In the opinion filed in that case, it was said: “It is not necessary to now determine whether a person would incur the penalty of this section by giving liquors as an act of hospitality at his house, as that question is not before the court.” The decisions in the two cases above mentioned were both undoubtedly right, and entirely consistent with each other; but expressions were used in the opinions in each of the cases which were unnecessary, and probably not entirely accurate.

In the construction of a statute, “the courts are not confined to the literal meaning of the words in the statute, but the intention may be collected from the necessity or objects of the act, and its words may be enlarged or restricted according to its true intent. (Castner v. Walrod, 83 Ill. 171.) The Dram-shop act now under consideration is a statute of a highly penal character, and provides rights of action unknown to the common law, and should, according to well understood canons, receive a strict construction. Taylor v. Sprinkle, Breese, 1, *17; Pickering v. Misner, 11 Ill. 597; Freese v. Tripp, 70 id. 496; Meidel v. Anthis, 71 id. 241; Albrecht v. The People, 78 id. 510.

A very full and elaborate discussion and comparison of the several sections and provisions of the Dram-shop act, as hearing upon the question of the construction to be given section 9 of said act, will be found in the opinion of the Appellate Court, by Green, J., delivered in this cause, and reported in Aden v. Cruse, 21 Bradw. 401, and it is deemed unnecessary to repeat the reasoning of that opinion.

We concur in the conclusion reached by the Appellate Court, that section 9 of the Dram-shop act does not apply to persons who are not, either directly or indirectly, or in any way or to any extent, engaged in the liquor traffic, and that the right of action given by said section to one injured in her means of support is not intended to be given against a person who, in his own house, or elsewhere, gives a glass of intoxicating liquor to a friend as a mere act of courtesy and politeness, and without any purpose or expectation of pecuniary gain or profit.

The judgment of the Appellate Court was clearly right, and is affirmed.

Judgment affirmed'.


source: Caselaw Access Project

author: Mr. Justice Wilkin

license: Public Domain

text:
    Nicholas Boul v. The People ex rel. James D. Baker, Collector.

      Filed at Mt. Vernon January 26, 1889.

    1. Dbainage law—re-classification of lands—extension of tax on that basis. The new classification of lands specially benefited, as authorized by section 21 of the act of 1885, is intended to correct errors in the prior one; and when made, taxes levied for the payment of. prior-indebtedness of the district will be extended on the basis of the reclassification.
    2. On April 4, 1885, certain drainage commissioners made an assessment of $28,000, in addition to one previously made, payable, one-third October 1, 1886, one-third October 1, 1887, and one-third October 1, 1888, on which assessment the commissioners borrowed $26,000, issuing bonds dated October 30,1885, $8000 payable in two years, $8000 in three years, and $10,000 in three years and eleven months. Prior to April 25, 1887, lands in the district were not assessed for benefits, at which time a re-classification was made, by which they were made assessable. The tax levied to pay the principal and interest of the second installment of bonds, and the interest on the third installment, was extended on the basis of the re-classification: Held, that the tax was properly extended upon that basis. The owners acquired no rights under the first assessment of benefits, but enjoyed only the benefit of a mistake.
    Appeal from the County Court of St. Clair county; the Hon. John B. Hat, Judge, presiding.
    Mr. Fbaniclin A. McConatjghy, for the appellant:
    The improvements or work contemplated and executed under the first and second assessments were held by the commissioners not to be of benefit to this property, and doubtless this was the case; and now, when other work is about to be begun, and it is properly determined that this will benefit the property, the appellant is perfectly willing to bear his share of the burden. This is certainly what was intended by the General Assembly when it provided for these classifications. The language of section 21 of the act of 1885 (Bess. Laws of 1885, p. 85,) is: “In districts heretofore formed, which have made one or more levies of taxes, and a new levy is required, the classification of lands on the graduated scale shall be made to conform,” etc. It is perfectly clear from this language that no old levies are referred to. But, here, we are asked to pay old levies on the basis of a new classification.
    Now, when this assessment was made, and it was provided that it should be paid in three installments, the law stepped in, and said that these installments should “be a lien upon the lands assessed until paid.!’ Hence the effect of the course here pursued would be to raise these levies from the lands assessed, and put them upon lands not assessed, without a hearing, and without regard to the fact that the lands have been bought and sold in the district with reference to these liens. The mere statement or proposition carries with it every reason that, these liens can not be disturbed.
    The law provides that the commissioners shall report what lands are benefited at the time of tins assessment. (Starr & Curtis’ Stat. chap. 42, sec. 34, clause 5.)- And this court has held that when this report was confirmed, it became res judicata. Owners of Lands v. People ex rel. 113 Ill. 296.
    To thus shift and change about liens established on these lands, as this construction would require, seems to counsel to violate the provision of the constitution which inhibits the General Assembly from enacting a law “impairing the obligation of contracts.” Constitution of 1870, art. 2, sec. 14; Gunn v. Barry, 15 Wall. 610; Bruce v. Schuyler, 4 Gilm. 221; People v. Riggs, 56 Ill. 483; Ramsey v. Hoeger, 76 id. 432; Bruffett v. Railroad Co. 25 id. 353.
    There is no doubt that the effect of all this is to extend a tax for one year, made with reference to a certain assessment, upon the assessment of another year, and doubtless for a different purpose. This is clearly against the principles laid down by this court in a number, of eases. Town of Lebanon v. Railway Co. 77 Ill. 539; Graves v. Bowen, 11 id. 431; Bill

      ings v. Dilten, 15 id. 218; Thurston v. Little, 3 Mass. 429; Grangers v. Power, 2 Pick. 392.
    It is very clear that if the construction of section 21 of the act of 1885, which will be insisted upon by the opposing counsel, is to be adopted, then there is a clear conflict in the law itself. This second assessment was an additional assessment, and both the original act of 1879 (section 32) and the revisory act of 1885 provide that all additional assessments' shall be made on the original classification; and while we do not contend that this provision in the act of 1885 applies to this former assessment, the provision in the act of 1879 certainly does.
    Mr. Geobge Hunt, Attorney General, for the appellee:
    Under the original classification, some of the lands benefited were not taxed at all, and others less than their share. The new classification, under section 21 of the act of 1885, does class them properly. It is not claimed there is any injustice in this classification, but simply that lands not taxed in the first instance should not now pay any part of the cost of the improvement.
    It is argued that enforcing section 21 is impairing the obligation oj: contracts. But there had been no contract that the lands should not pay their just share of the cost of the improvement. All laws enacted after the contracting of a valid debt by a county, etc., which, if enforced, would deprive it of the means of payment, will be void, as impairing the obligation of contracts. Wolf v. New Orleans, 13 Otto, 358; Van Hoffman v. Quincy, 4 Wall. 535; Louisiana v. Pittsburg, 15 Otto, 278; Railway Co. v. People, 116 Ill. 408.
    But this does not seem to us to be the proper place to raise this objection. Following the other decisions of this court, we think it must be held that the assessment and classification . having been confirmed by the commissioners, under proper notice, their decision, not appealed from, is final.

      A judgment of confirmation of a special assessment is conclusive upon all lot owners whose property is assessed, as to all matters of defense that might have been interposed to prevent the confirmation, provided such owners are in court by the service of proper notice, or by voluntary appearance. Murphy v. People, 120 Ill. 234; Railway Co. v. Seip, id. 104.
    Mr. Chakles P. Knispel, also for the appellee.
   Mr. Justice Wilkin

delivered the opinion of the Court:

This was a proceeding by appellee, Baker, as collector of his county, to obtain judgment against delinquent lands and town lots for taxes, special assessments, etc. Objections were filed by appellant, but overruled, and judgment entered against his lands, and from that judgment he appeals to this court.

The facts in the case necessary to a fair consideration and decision of the question presented, are as follows: Drainage district No. 1, in the townships of Sugar Loaf and Centerville Station, St. Clair county, was organized under the act of the General Assembly approved May 29, 1879. On the 4th of April, 1885, the commissioners made an additional assessment of $28,000, payable, one-third October 1,1886, one-third October 1, 1887, and one-third October 1, 1888. On this assessment they borrowed $26,000, issuing bonds dated October 30, 1885,—$8000 payable in two years, $8000 in three years, and $10,000 in three years and eleven months. These bonds were duly registered in the office of the Auditor of Public Accounts. Prior to April 25, 1887, appellant’s lands were not assessed for benefits, but at that time a re-classification of the lands in the district'was made, under section 21 of the act in force July 1,1885, by which they were made assessable. Proper notice of this classification was given, and appellant appeared and made objections, but they were not sustained, and he took no appeal. In pursuance of the warrant of the Auditor of Public Accounts, certifying the amount needed for the year 1887 to pay principal and interest on bonds issued by the commissioners of said district, in which amount was included $8000 and interest, being the second installment of the bonds of October 30, 1885, and the interest on the third installment thereof, a tax was levied against the lands in said drainage district, based upon .the last named classification, thus causing a tax of $14.99 to be levied on appellant’s lands. This he refused to pay, and hence this proceeding.

The objections filed in the county court raise the question whether or not appellant’s lands can be taxed to pay any part of the bonds of October 30, 1885, the position of his counsel being, that inasmuch as his lands were not assessed for benefits at the time the assessment,, on the 4th of April, 1885, was made, and the bonds issued to pay the same, they can not, by a subsequent classification, be made liable to contribute to their payment. In support of this position it is argued, that in so far as section 21 of the act of 1885 authorizes the commissioners to disregard the proportions of former assessments, and make a new classification, its provisions should be applied only to future assessments. So much of that section as bears upon this question reads as follows

“In districts heretofore formed, which have made one or more levy of taxes, and a new levy is required, the classification of lands on the graduated scale shall be made to conform, as near as may be, to the former proportionate assessment; but if the commissioners believe, from experience and results, that the'former assessment was not fairly adjusted on the several tracts of land according to benefits, then the commissioners shall disregard the proportion of the former assessment, and make the new classification in accordance with such proportions as should have been made originally. When the classification is completed, it shall be properly tabulated, or shown by a map, or both, and filed in the clerk’s office for inspection.”

There is nothing in this language to- indicate an intention on the part of the legislature to so limit its application. It is the express purpose of the Drainage law of this State, that each tract of land in a district shall bear its equal burden, in proportion to benefits. Until the work is done and practically tested, the adjustment of benefits can only be made from judgment, based on theory and general experience. This statute of 1885 allows the commissioners to bring to their aid the experience and practical results of the system adopted and work done, and having done so, if convinced that the former assessment was not fairly adjusted on the several tracts of land according to benefits, then it is made their duty, by this act, to disregard the proportions of the former assessment, and make the new classification in accordance with such proportions as should have been made originally. It is not claimed that the classification made April 25,1887, is unfair or inequitable; therefore, in making it the commissioners have simply done that which should have been originally done. The language, "as should have been made originally,” is irreconcilable with the position of appellant that both classifications are correct,—the first applicable to improvements made under the first and second assessments, and the latter only intended to apply to work to be done in the future. If the present classification is correct, the original was necessarily wrong. The present one could only be made because the former one was not made as it should have been. Clearly, it was the intention of the legislature that the re-classification, correcting the errors in the original, should take the place of the original, and thereafter there should be but the corrected one upon which to' make assessments of taxes. This statute simply provides the means whereby commissioners may correct a mistake -made by them or their predecessors in estimating benefits, and so understood, we are unable to perceive wherein it violates the constitutional prohibition against the enactment of laws impairing the obligation of contracts, as contended by counsel for appellant. Appellant acquired no rights under the first assessment of benefits. He simply enjoyed the benefit of a mistake, which the law of 1885 afforded the means of correcting.

We find no substantial error in this record. The judgment of the county court in disallowing appellant’s objections is affirmed.

Judgment affirmed.


author: Per Cueiam:

text:
    The People’s Fire Insurance Company v. Emilie Pulver, for use, etc.

      Filed at Ottawa January 25, 1889.

    1. Insurance—proof of loss—whether sufficiently specific—waiver. "Where, owing to the destruction of books, bill of sale, invoices and other papers, the assured is unable to furnish a specific statement or inventory of the property destroyed, the law will hold the terms of the policy requiring proofs of loss as sufficiently complied with, by furnishing such as it is within the power of the assured to make. The law does not require the assured to do an impossible thing.
    2. In-this case, proofs of loss by fire were made February 17, 1885, seven days after the fire, stating therein the actual cash value of the property destroyed, and giving a full and accurate description of each kind of property, and the value thereof. Ho objection was made to this proof of loss until March 30, 1885. The assured replied on April 4, stating that a more complete and definite inventory could not be made, for the reason that all the books, invoices, etc., were destroyed in the fire, which letter was not answered until April 14, when the assured, was again informed that the proofs were insufficient, for the reasons stated in the letter of March 30: Held, that if there were defects in the proofs'of loss they were waived by the company, and that the delay in pointing out objections alone was a waiver.
    3. Pbactioe—directing what the verdict shall he. Where there is evidence given on the trial of an action on a policy of fire insurance,' tending to show a compliance with the requirement of the policy as to proofs of loss, or a waiver of defects in such proofs, there will be no error in the court refusing to instruct the jury to find for the defendant for want of sufficient proofs of the loss "being furnished.
    4. Ebbob will not always eevebse—inaccurate instructions. Although instructions given in behalf of the plaintiff state the defense broader than the issues and evidence, it will not work a reversal of a judgment for the plaintiff, unless this court can see that injury to the defendant has resulted from the error.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. John P. Altgeld, Judge, presiding.
    Messrs. Moses & Newman, for the appellant.
    Messrs. Kjraus, Mayeb & Stein, for the appellee.
   Per Cueiam:

This was an action of assumpsit on one of the three fire insurance policies mentioned in the case of Birmingham Fire Ins. Co. v. Pulver, for use, etc., in which an opinion has heretofore been filed. (126 Ill. 329.) The judgment in the Superior Court was for appellee, for $1112.13, from which an appeal was prosecuted to the Appellate Court, where it and the Birmingham case were, by agreement, submitted together, and both judgments affirmed. Both cases were again appealed to this court, but submitted separately.

It is first insisted, that the judgment in this case is erroneous, because the evidence fails to show that preliminary proofs of loss were made by the assured, as required by the terms of the policy, and that the trial court érred in refusing to instruct the jury to find for defendant for want of such proofs. It "is not claimed that there is an entire want of such evidence, but the contention is, that the proof of loss furnished, and which was admitted in evidence, is not a compliance with the condition in the policy as to such proofs, in that the assured “failed to furnish an inventory of the goods claimed to be totally destroyed, showing the quantity, quality and cost of each article claimed to be destroyed.” The proofs of loss in question were made February 17, 1885,—seven days after the 'fire. In it the actual cash value of the property destroyed is stated'to be $3929.45, as shown by an .annexed schedule, marked “Exhibit B, ” “giving a full and accurate description ■of each kind of property, and the value of the same, with the damage or loss on each, separately.” “Exhibit B” is a list of many articles, giving numbers and value, in the following form:

“8 imported dolmans, $17.50, - - - - $140.00

10 Russian- circulars, $8.00, - - - - 80.00

1 lot handkerchiefs,....... 5.00”

—The whole footing up $3929.45. Then follows a list of a few small articles, under the heading, “Present worth of damaged stock.”

Conceding that the inventory furnished was not a strict compliance with the requirements of the policy; it was an attempt to do so in apparent good faith, and we think, under the proof made as to the ability of the assured to furnish a more accurate one, should be held sufficient. The evidence shows that the preliminary proof of loss was delivered to the company about the date of ■ its execution. • No objection was made to it until March 30. Of the three objections then made, two are abandoned. The assured was also notified in this letter to procure her books, inventory,- and other vouchers and exhibits, for examination, and that then the company would require her to submit to an examination under oath, etc. To the objection now urged, the assured replied, on April 4th: “I beg -leave to enclose a certified copy of the bill of sale to me of the insured property, the original having beeh destroyed in the fire. The inventory was also destroyed, and I have already furnished you -with a copy of it, attached to and a part of the proofs of loss'. As you. are" aware, the fire occurred within a week after I opened the business, and I had no books of account at all, except, a sales book; also destroyed, and no bills or invoices except the above bill" of sale.” This letter was not answered until the 14th of the same month, when she was' again informed that the proofs were insufficient, for the reasons stated in the letter of March 30, and that the certified copy of the bill of sale in no way met the request of the company. In the same letter, however, she is again notified to appear for further examination.

If, from the destruction of books, bill of sale, invoices, and other papers, the assured was unable to furnish a more specific statement than that which she did furnish, the law would hold the terms of the policy sufficiently complied with. It would not require her to do an impossible thing. (Wood on Fire Insurance, 709.) That there is evidence in this record tending to show that she availed herself of all the means within her control to comply with the terms of the policy and the demands of the company, can not be denied. Nor can it be seriously contended that the conduct of the company did not amount to a waiver of defects in the proofs of loss. The delay in pointing out objections alone, must be so held, under the authority of Great Western Insurance Co. v. Staaden, 26 Ill. 365. At least it will be conceded that there is evidence in the record tending to prove such waiver. The court below therefore properly refused to take the case from the jury, both because the evidence tended to show compliance with the requirements of the policy in furnishing proofs of loss, and because it tended to prove a waiver of any defects therein.

In this case appellant asked twenty instructions, many of them quite lengthy, and nearly all literal copies of those asked in the' Birmingham case. As in that case, all were refused, and a series prepared and given by the judge. It is contended that it was error to refuse the instructions asked, and that those given by the court did not present the law of the case fairly to the jury.

By the fifteenth instruction asked by appellant, its defense was stated in two propositions: First, that the plaintiff was not the actual owner of the destroyed property at the time of the insurance 'and fire; second-, that the plaintiff committed fraud upon the company by making a fraudulent proof of loss, in overstating the amount and value of the property destroyed, and that she swore falsely in her examination taken under the provisions of the policy, with the intent to defraud the company. In the instructions given by the court, in addition to these defenses, it is stated that the defendant claimed that the fire was collusive, and that the assured made fraudulent statements as to the origin of the fire; and it is insisted that by stating to the jury that such claim was made by the defendant, its case was prejudiced. From the pleas remaining in the record, (especially the tenth,) and the scope of the evidence, we may well suppose such defences were insisted upon in the argument before the jury,—at least we have no means of determining that they were not. Even if the instructions given did state the defense broader than the issues and evidence made it, it would not work a reversal of the judgment, unless we could see that injury to appellant had resulted,— of which there is no evidence before us.

The instructions given, on the issues and evidence, presented the law of the case with reasonable accuracy, and, therefore, whether all the points sought to be covered by appellant’s instructions were met or not, is immaterial. Having examined the refused instructions with care, and compared them with those given, we are clearly of opinion that there was no error in giving and refusing instructions.

The other grounds of reversal insisted upon, of sufficient importance to be noticed, are disposed of in the Birmingham case¿ referred to, and need not be further noticed in this.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    Edward L. Gould v. Charles Howe.

      Filed at Ottawa January 25, 1889.

    1. Practice—trial by the court—preserving questions of Ig/u). Where an action of ejectment is tried by the court without a jury, and the bill of exceptions fails to show any exception to the judgment, or any motion for a new trial, or any propositions of law submitted, and no question is raised as to the ruling on questions of evidence, the record will present no question of law for this court to pass upon, and the judgment will be affirmed.
    2. Bill oe exceptions—when necessary. A recital by the clerk of the court that exception was taken to the judgment of the court and its rulings on propositions of law' submitted under section 42 of the Practice act, can not be considered in this court. These are matters that can only become a part of the record by being incorporated into the bill of exceptions.
    Appeal from the Circuit Court of Marshall county; the Hon. T. M. Shaw, Judge, presiding.
    Mr. J. H. Jackson, and Messrs. Barnes & Barnes, for the appellant.
    Messrs. Edwards & Evans, for the appellee':
    There is nothing in this record for the court to pass upon. The trial was before the court, without a jury. The bill of exceptions contains the evidence, but it fails to show that any exception was taken to the finding and decision of the court, or that a motion was made for a new trial, overruled, and the decision of the court excepted to, and hence no error can be assigned. Parsons v. Evans, 17 Ill. 238; James v. Dexter, 113 id. 654; Dickhut v. Durrell, 11 id. 72; Manufacturing Co. v. Horton, 74 id. 310; Law v. Fletcher, 84 id. 45; Snell v. Church, 58 id. 291.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was ejectment, tried, by agreement of parties, by the court, without the intérvention of a jury.

The bill of exceptions fails to show any exception taken to the judgment rendered, or any motion for a new trial. Nor are there recited in the bill of exceptions any propositions of law submitted under the 42d section of the.Practice act, and the rulings of the court thereon; and there is-no question of law discussed in argument, arising on rulings of the court in admitting or excluding evidence. There is, therefore, no question presented by the record upon which we can pass. It is immaterial that the recitals in the orders entered by the clerk may show exception to the judgment, and the submission and rulings thereon of propositions of law under the 42d section of the Practice act. These are matters that can only become a part of the record by being incorporated in the bill of exceptions, and the clerk’s recitals, in that respect, are, therefore, extra-official, and of no legal effect. Martin et al. v. Foulke et al. 114 Ill. 206; Graham et al. v. The People, 115 id. 566; Magill et al. v. Brown et al. 98 id. 235; Boyle v. Levings, 28 id. 314; Gill v. Shelton, 54 id. 158; Hahn v. St. Glair Savings and Insurance Co. 50 id. 456; McLaughlin v. Walsh, 3 Scam. 185; Petty v. Scott, 5 Gilm. 209; Magher v. Howe, 12 Ill. 379; Moss v. Flint et al. 13 id. 572; Dickhut v. Durrell, 11 id. 72.

The judgment is affirmed..

Judgment affirmed.


author: Mr. Justice Soholfield

text:
    Nat. Bank of Lawrence Co. et al. v. John V. Le Moyne et al. and George F. Harding v. H. M. Shepard, Admr. et al.

      Filed at Ottawa January 25, 1889.

      1. Appeal—from Appellate Oourt—what questions to be considered. No questions can be considered on appeal from or writ of error to the Appellate Court, except such as were, by the record before it, presented to that court.
    2. Same—effect of amended bill of exceptions, not before the Appellate Court. This court, on appeal from the Appellate Court, can only determine whether that court decided correctly, and the exact question submitted to that court must be before this court. It therefore follows, that an amended bill of exceptions not before the Appellate Court can not be considered by this court.
    3. Same—practice—time to object that the bill of exceptions is not complete. Where the appellee in the Appellate Court omits to make the objection there that the bill of exceptions fails to show any exceptions on the trial, on appeal to this court he 17111 be precluded from urging such objection.
    4. Any objection that may be obviated must be made in the lower courts in apt time, or it will be considered as waived.
    5. Tbial by the court—bill of exceptions—what it must show. Where the bill of exceptions fails to set out the findings and judgment of the court on a trial without a jury, and to show they were properly excepted to, no questions arising upon such findings and judgment can be considered by the Appellate Court.
    6. Same—no propositions of law presented—presumption. Where a case is tried before the court without a jury, and no propositions of law are submitted, it will be assumed that the court ruled the law correctly; and the affirmance of the judgment by the Appellate Court is conclusive.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Lobin C. Collins, Judge, presiding.
    Mr. William J. Ammen, and Mr. G-eoege B. G-eant, for the appellants.

      Mr. Melville W. Fuller, and Messrs. Wilson & Moore, for the appellees.
   Mr. Justice Soholfield

delivered the opinion of the Court:

These were proceedings in the probate court of Cook county, by certain creditors of the estate of Charles W. Becketson, deceased, against the administrator of that estate, for the collection of their debts. Appeals were prosecuted from the judgments of the probate court to the circuit court of that county, and that court affirming the judgment of the probate court, an appeal was taken from its judgment to the Appellate Court for the First District. The last named court affirmed the judgments of the circuit court, and, by a further appeal, the cases are brought here, and, by agreement of parties, they are consolidated, and to be considered as one case.

Since the cases have been pending in this court, an amended record, containing an amended bill of exceptions, has been filed. Motion was made to strike it from the files, and the decision on that motion has been reserved until now.

We have held that no questions can be considered, on appeal from or writ of error to the Appellate Court, except such as were, by the record before it, presented to that court. (Thayer v. Peck, 93 Ill. 357; Redlich v. Bauerlee, 98 id. 134; Hyslop v. Finch, 99 id. 171.) Necessarily, therefore, the record reviewed must be the same in this court that it was in the Appellate Court. The principle applying is obvious, and needs no elaboration. We can only decide whether the Appellate Court decided correctly, and to do that, the exact question submitted to it must be before us. It follows that the amended record can not be considered here, and must be stricken from the files.

The original bill of exceptions omitted to set out the findings and judgments of the circuit court, and to'show that they were properly excepted to at the time they were announced. No question arising upon such ruling could therefore have been considered by the Appellate Court, had that objection been there urged. Martin et al. v. Foulke et al. 114 Ill. 206; Graham et al. v. The People, 115 id. 566.

It is contended, however, that inasmuch as that objection was not urged in the Appellate Court, it can not be urged here. This is the general rule applicable to all objections that may be obviated if urged in apt time, and we think it is applicable here. Had the objection been urged in the Appellate Court, it might have been obviated, as it was here attempted to be, by an amended record_containing an amended bill of exceptions.

The causes were tried by the court, by agreement of parties, without the intervention of a jury. The questions presented for our consideration are thus stated by counsel for appellants:

“The appellants respectfully submit, that the only two questions made in this consolidated ease are, first, whether John V. LeMoyne should be allowed the judgment given upon the Tiernan contract; and second, whether he should be allowed dividends upon said claim, to be paid out of the proceeds of the sale of the lands made under the order of the circuit court, of June, 1870.”

It is obvious these include both questions of law and of fact. The court may have entirely agreed with counsel for appellants as to the construction of the law, but disagreed with them as to the effect of the evidence. It is provided by section 41 of our Practice act, (Rev. Stat. 1874, p. 780,) that in all cases, in any court of record of this State, if both parties shall agree, both matters of law and fact may be tried by the court; and upon such trial, either party may, within such time as the court may require, submit to the court written propositions to be held as law in the decision of the ease, upon which the court shall write “refused” or “held,” as he shall be of opinion is the law, or modify the same, and to which either party maj^ except, as to other opinions of the court. In construing the provisions of the Appellate Court act, limiting our right to review questions of law, only, in connection with this section, in Bridge Co. v. Commissioners of Highways, 101 Ill. 521, we said: “The ultimate propositions to be proven, the evidence submitted in support of them, the finding of the trial court on those propositions, and the judgment of the Appellate Court upon such findings, are matters which .this court is not permitted to review, where no exception has been taken or question of law has. otherwise been preserved upon the record.” And in Mutual Aid Association v. Hall, 118 Ill. 173, we said: “Where there is a trial before the court, without a jury, in order to present a question of law to this' court as having been passed upon by the court below, the party should submit propositions of law to the trial court.”

Where, in a case tried by the court without the intervention of a jury, no propositions of law are submitted to the court, the case stands in the same condition, in so far as affects this question, as if the trial had been by jury, and no instructions had been asked or given on either side. In such case it would be assumed the jury made no mistake of law, and if the verdict should be wrong, it would be an error of fact, which the Appellate Court alone can correct. (Hobbs v. Ferguson’s Estate, 100 Ill. 232.) So here, therefore, we must assume that the trial court ruled the law correctly, and the decision of the Appellate Court conclusively determines that it ruled the facts correctly. Kelderhouse v. Hall, 116 Ill. 147; Christy v. Stafford, 123 id. 465; Montgomery et al. v. Black et al. 124 id. 57; First National Bank of Michigan City v. Haskell et al. id. 576.

The judgment is affirmed.

Judgment affirmed.

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