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by the removal. Perhaps the circumstances might have justified establishing an equitable lien upon the property, which had been enhanced in value by the addition of the house, or that equity could have afforded a remedy against the owner of the premises; but this appeal to a court of equity was made after the lapse of more than 22 years, when the title to the property had changed, and against a party who acquired it in good faith, without any notice of any secret lien upon it or claim against it. The defendant, Jane G. Patterson, had then bought the premises, so far as appears, in entire good faith, without any actual or constructive notice of any claim of either complainant, and it is conceded that she is to be treated as an innocent purchaser. The value of the premises was not increased while she owned them by the addition of the house, but she bought the premises with the house on them and paid for the whole. For aught that appears, her purchase was 21⁄2 years after the premises were improved and the house made a part of the new structure. Benjamin R. De Young had known from May, 1897, up to his purchase, April 10, 1898, that there was no house on the premises. According to the bill he was to have the house if it could be recovered, or the proceeds of this litigation; but he gave no notice of his claim to the house or a lien upon the property for a year and eight months after his purchase, and in the meantime the property passed to an innocent purchaser. Whatever right Eliza M. Fisher might have had in an action at law for stolen property in the hands of an innocent purchaser for value, or upon prompt appeal to a court of equity, we know of no principle of equity upon which an equitable lien in favor of complainants against the property of the defendant can be upheld or a personal liability be imposed on her, under the circumstances alleged in the bill.

The judgment of the appellate court is affirmed. Judgment affirmed.

(197 III. 330)

CITIZENS' INS. CO. v. STODDARD et al. (Supreme Court of Illinois. June 19, 1902.) INSURANCE-PROOFS OF LOSS-PRESENTMENT -WAIVER BY AGENT-AUTHORITY-EVI

DENCE-INSTRUCTIONS.

1. In an action on a fire policy it was shown that an alleged agent of the company had received the application and delivered the policy, and that, when he received notice of the loss and forwarded it to the insurer, the latter acknowledged its receipt to him, and asked him to investigate the case, but to do nothing by way of an adjustment. Subsequently, not hearing from the adjuster, insured called on the agent, and he wrote to the insurer, which replied again, asking that he look into the loss. Held, that the evidence showed that the alleged agent was the agent of the insurer in the matter of the loss, so that conduct on his part inconsistent with the provision of the policy as to proofs of loss would be binding on the in

surer.

2. Where, in an action on a fire policy, it was

in issue whether an alleged agent of the defendant was its agent, and, if so, whether his powers were such that he could waive a provision of the policy, an instruction assuming such facts was not prejudicial error; it appearing from the evidence that the alleged agent did have the authority to bind the insurer by a waiver.

3. A provision of a fire policy that no representative of the insurer shall waive any provision of the policy has reference only to conditions forming part of the contract of insurance, and does not apply to a requirement that proofs of loss shall be furnished within a specified time.

Appeal from appellate court, First district. Action by Thomas F. Stoddard and others against the Citizens' Insurance Company. From a judgment of the appellate court affirming a judgment for plaintiffs (99 Ill. App. 469), defendant appeals. Affirmed.

Charles H. Jackson, for appellant. Alden, Latham & Young, for appellees.

BOGGS, J. The appellees, in an action of assumpsit brought to recover on a fire insurance policy issued by the appellant company, on a hearing before a jury, were awarded a judgment in the sum of $1,261.25, and the appellate court for the First district affirmed the judgment.

The only defense sought to be made was that proofs of loss were not presented to the company within 30 days after the fire, as by a stipulation in the policy was required to be done. The appellees contended-and such was the theory on which the judgment was rendered-that one Charles H. Sisson was the agent of the appellant company, and that by his acts and representations the company had become estopped to demand the provision in question should be enforced. The appellant company urges that it was a question of fact whether said Sisson was its agent, and, if so, whether his powers were such as to make his acts and representations operate as a waiver of the provisions of the policy, and complains that instructions Nos. 1, 2, and 3 given on behalf of the appellees were so framed as to assume that said Sisson was in fact the agent of the company, and were likely to be understood to advise the jury that one having authority to act in any respect or for any purpose as an agent of the company might waive the provision of the policy as to proofs of loss, or estop the company from claiming the benefit thereof.

The instructions do not expressly declare that Sisson bore the relation of agent to the company, or that an agent of the company, having any power whatever to represent and act for it, may by his acts or representations waive or estop the company to insist upon the benefit of the condition of the policy in question. The instructions are, however, so drawn as not to be entirely free from the criticism that an implication of the existence of the relation of principal and agent might seem to be assumed, and also seem to

imply that the existence of such relation in any degree or character was sufficient to make the company responsible, by the way of a waiver or estoppel, for the acts or representations of such agent. In view, however, of the evidence, it is clear these inaccuracies in the instructions could not have operated to the prejudice of the appellant company. The only testimony bearing upon the question of agency was that produced on behalf of the appellees. It established, beyond controversy, that the said Sisson received the application of the appellees for the policy of insurance, transmitted the same to the appellant company, received the policy from the company, delivered it to the appellees, received the premium therefor, and accounted for the same to the company, and, further, that when the loss occurred said Sisson received notice thereof from the appellees, and forwarded the same to the appellant company, who acknowledged receipt thereof to him, and advised him that it had placed the matter in the hands of its adjuster, and that he (Sisson) must refrain from taking any action in the adjustment of the loss, but should "look into all points with extreme care, and find out, first and foremost, if it is a clean-cut loss, and if the assured in every way has been perfectly straight concerning it; and, as soon as possible, let us hear from you. * You must help us now, if you can, more than ever." In the same letter the company advised Sisson it had requested the adjuster to communicate at once with the appellees, and had no doubt he would do so, and that the appellees must follow the instructions of the adjuster. The adjuster of the company also wrote said Sisson that the appellees' claim had been placed in his hands, and that he had instructed them with respect to the proofs of loss. The letter from the adjuster to the appellees was misdirected, and did not reach them. They again called upon Sisson, and he again wrote the company; and the company replied to him, in substance, that the adjuster had written to the appellees, and expressed surprise that the letter had not been received. In this communication the company further wrote Sisson: "We wish, in strictest confidence, you would do a little quiet looking into this matter, without adjusting it at all. This we do not want you to do." Soon after the receipt of this letter by Sisson, and within 20 days after the fire, appellee P. K. Stoddard inquired of Sisson if he had heard from the company about the adjustment of their loss, and was told by Sisson that he had heard from it, and that the adjuster was sick; and, in response to a question asked by said appellee about the proofs of loss, Sisson responded, in substance, that the proofs might be filed at any time within 60 days after the fire. Sisson also told said appellee at the same time that he had received a letter from the adjuster, in which the adjuster said he had

sent instructions to the appellees as to the proofs of loss.

There being no countervailing proof, but one conclusion of fact was admissible; and that, that Sisson was fully authorized to act for the company generally in the matter, except in respect alone of the adjustment of the amount of the loss occasioned by the fire. It is not ground for reversal that an instruction assumes as proven a fact which is established without contradiction by the proofs. Railroad Co. v. King, 179 Ill. 91, 53 N. E. 552, 70 Am. St. Rep. 93. In receiving and transmitting notices from appellees to the company, and receiving communications from the company with respect thereto, and in investigating the alleged loss and looking into the justice of the claim, Sisson was transacting business for the company, and as its agent. While so engaged, his acts and representations with respect to the matters so in his charge were those of the company, and, if his acts and conduct while so engaged were inconsistent with an intention on the part of the company to insist upon a strict observance of the condition of the policy in regard to the presentation of the proofs of loss within the time specified, a waiver of such condition or provision might arise there from. May, Ins. 145; 16 Am. & Eng. Enc. Law, p. 643; Insurance Co. v. Dowdall, 159 Ill. 179, 42 N. E. 606; Insurance Co. v. Schallman, 188 Ill. 213, 59 N. E. 12.

The policy provided, in substance, that no officer, agent, or other representative of the company should have power to waive any of the conditions or provisions of the policy, except such waiver should be in writing indorsed upon or attached to the policy. There is nothing in this stipulation which takes it out of the general rule that the provision in a policy of insurance that no waiver shall arise, except out of an agreement indorsed in writing, has reference only to the conditions entering into and forming a part of the contract of insurance, and has no application to those conditions which are to be performed after a loss has occurred. Firemen's Fund Ins. Co. v. Western Refrigerating Co., 162 Ill. 322, 44 N. E. 746; 16 Am. & Eng. Enc. Law (2d Ed.) p. 952. The judgment must be, and is, affirmed. Judgment affirmed.

(197 Ill. 478)

HUNTER v. NATIONAL UNION. (Supreme Court of Illinois. June 19, 1902.) APPELLATE AND SUPREME COURT-FINDING OF FACTS.

Where, in an action on a benefit certificate, the issue was whether the insured was a member in good standing at the time of his death, and the appellate court, reversing the trial court, found that he was not, the finding of such ultimate fact was conclusive; and on appeal to the supreme court it could not consider the evidentiary questions whether a bylaw under which insured was alleged to have been suspended for nonpayment of dues was

self-acting, or whether notice of assessment was given, or whether there was a waiver of default in payment of dues, but only whether the law was properly applied to the fact so found.

Appeal from appellate court, First district.

Action by Margaret Hunter against the National Union. From a judgment of the uppellate court (99 Ill. App. 146) for defendant, plaintiff appeals. Affirmed.

James Maher, Thomas H. Cannon, and Wells M. Cook, for appellant. Charles J. Kavanagh, for appellee.

CARTWRIGHT, J. Appellee issued a benefit certificate to Joseph E. Hunter, by which it agreed to pay to appellant $2,000 at his death upon the conditions therein contained. Joseph E. Hunter died, and appellant brought this suit in the superior court of Cook county upon the certificate, a copy of which was set out in her declaration. By the certificate Joseph E. Hunter was admitted as a member of defendant's order and designated a "friend." The defendant agreed to pay said sum, pursuant to the laws of the order, upon the surrender of the certificate and sufficient proof of his death, with this condition: "Provided, always, that the said friend shall be in good standing in this order at the time of death." The application of Joseph E. Hunter was made a part of the certificate, and the declaration also contained a copy of such application. One of the conditions of the application was that the suspension of Joseph E. Hunter from the order should forfeit the rights of himself and his beneficiary to all benefits and privileges in the order. The declaration alleged the making of the application and certificate, and averred that Joseph E. Hunter died on March 25, 1896, while said certificate was in full force and effect; that he had performed all conditions and requirements by him to be performed; that he was a member in good standing at the time of his death; and that by reason thereof and by the terms and conditions of the certificate defendant became liable to pay said sum of $2,000 to plaintiff. To this declaration the defendant filed a plea, alleging that in accordance with its law an assessment numbered 176 was levied and notice issued for its collection December 10, 1895; that Joseph E. Hunter was notified of said assessment in pursuance of the laws, rules, and regulations of the order and failed to pay said assessment, which was due January 10, 1896, and by reason of such failure became suspended from the order under its laws; and that by reason of such suspension he was not a member in good standing at the time of his death. Plaintiff, by her replication, denied that Joseph E. Hunter was suspended from membership as alleged in the plea, but, on the contrary, averred that he was in good standing at the time of his death. The issue was submitted to a jury, which found it for plaintiff and assessed her damages at $2,383.66. The

court overruled defendant's motion for a new trial and entered judgment on the verdict. Defendant appealed to the appellate court for the First district, and that court found the fact in issue differently from the superior court, and reversed the judgment, reciting in its final judgment the following finding of fact: "The court finds that the insured, Joseph E. Hunter, had been suspended more than 30 days prior to his death, and was not at the time of his death a member in good standing of the National Union, appellant." The case is brought here by appeal from the judgment of the appellate court.

The only question in issue by the pleadings was the question of fact whether Joseph E. Hunter had been suspended from the defendant order, or whether he was in good standing in the order at the time of his death. That was the issue submitted to the jury, and they found the fact in favor of the plaintiff. The superior court approved the finding and entered judgment on the verdict; but the appellate court, upon a consideration of assignments of error that the verdict and judgment were against the evidence, found the fact differently and entered such finding in its judgment. The judgment of the appellate court is final and conclusive as to the ultimate fact, and all that we can do is to determine whether that court, in its judgment, properly applied the law to the fact as found. Hawk v. Railroad Co., 147 Ill. 399, 35 N. E. 139. A reversal of the judgment of the appellate court is asked only on the ground that the decision and finding of fact by that court were wrong, for the following reasons: First, because the laws of the order in respect to suspension were not self-executing, and there was no affirmative act of the order declaring a forfeiture or suspension; second, there was no competent evidence that notice of the assessment was given; third, that the defendant, by its conduct in permitting Joseph E. Hunter to default from time to time without suspending him, waived its right to a compliance with its laws providing for suspension. It will be seen at once that the decision of these questions depended upon the existence of facts, and that, at most, the question whether Hunter was suspended or was in good standing was a mixed question of law and fact, as to which the finding of the appellate court was final. Moerschbaecher v. Supreme Council Royal League, 188 Ill. 9, 59 N. E. 17, 52 L. R. A. 281. The fact found by the appellate court was the ultimate and controlling fact in the case, and that court was not required to recite in the finding evidentiary facts. Davis v. Chicago Edison Co.,195 Ill. 31, 62 N. E. 829. It was stipulated in the application and certificate that if Joseph E. Hunter should be suspended, and should not be at the time of his death a member in good standing of the National Union, there would be no liability under the certificate. The appellate court found that he had been suspended and was not in good standing, and the law was

properly applied to the fact SO found. Schwartz v. Supreme Court of Honor, 191 Ill. 344, 62 N. E. 777. The judgment of the appellate court is affirmed. Judgment affirmed.

(197 Ill. 304)

CHICAGO & A. R. CO. v. KUCKKUCK. (Supreme Court of Illinois. June 19, 1902.) ANIMALS-PERSONAL INJURIES-EVIDENCE

INSTRUCTIONS.

1. In an action for injuries received from vicious dogs, it was not error to exclude evidence calling for the conclusions of the witness as to the character of the dogs, and as to whether in his opinion he had any reason to suppose the dogs were of a ferocious nature.

2. Plaintiff was attacked by dogs kept on the premises used by defendant as a railroad office. The premises were open, and there was nothing to inform the public that they had no right to go there. Defendant proved the situation and uses of the property, and it was not claimed that plaintiff knew dogs were kept on the premises. Held not error to refuse to permit defendant's yardmaster to testify as to the rights of the public to go on the premises, resulting from their situation and use.

3. The omission of any material fact or requirement from a mandatory instruction purporting to state the rights of the parties and the facts authorizing a recovery cannot be cured by other instructions.

4. An instruction in an action for injuries received from dogs, authorizing a recovery for plaintiff on the finding of certain facts, was not erroneous in omitting the requirement that plaintiff was not guilty of contributory negligence, where there was no evidence that plaintiff was guilty of such negligence.

Appeal from appellate court, Second district.

Action by Fred Kuckkuck, a minor, suing by his next friend, against the Chicago & Alton Railroad Company. From a judgment of the appellate court (98 Ill. App. 252) affirming a judgment in favor of the plaintiff, the defendant appeals. Affirmed.

James R. Flanders, for appellant. Dona. hoe & McNaughton, for appellee.

CARTWRIGHT, J. Appellee, a minor, suing by his next friend, brought this suit in the circuit court of Will county against appellant to recover damages received from being attacked and bitten by two dogs kept by appellant on its premises. Upon a trial he obtained a verdict, on which judgment was entered, and the appellate court for the Second district affirmed the judgment. The yard office of the defendant in the city of Joliet stood on sloping ground facing east, and was even with the surface in front, while the back part rested on piers, leaving an open space under the building. Plaintiff went to the office with a telegraph operator, who was seeking employment, to show him the way. The telegraph operator went upstairs to the telegraph office, and plaintiff sat down on a bench in front of the building. It was in July, and after remaining there a short time he went around on the north side

of the building to get in the shade, as he testified, and squatted or sat down upon his heels against one of the piers. There were two bull dogs on the premises. One of them was running loose, and the other was tied under the office by a chain from his collar, with a ring at the other end running on a telegraph wire. One end of the wire was fastened at the center pier, where the doghouse was, and the other end to a telegraph pole about 50 feet away, so that the dog could run back and forth and the ring would slide on the wire. Employés were accustomed to leave their dinner pails, rain coats, and other clothing there, and the dog was kept there by authority of C. H. Haskell, the yardmaster and freight agent of defendant, to prevent pilfering and nuisances and to keep tramps away. The dogs were owned by James Corcoran, a yard clerk under Haskell, and had been kept there in that way about four months. Soon after plaintiff went around by the pier, he was attacked by the dogs, his clothes were torn from him, and he was badly bitten. He was rescued by the yardmaster and other employés of defendant, and his wounds were numerous and serious.

The first alleged error is the refusal of the court to admit testimony offered on the part of defendant to show that the dogs were not vicious or accustomed to attack persons. There was evidence on the part of plaintiff tending to prove that the dogs were vicious and dangerous, and that the servants of defendant knew that fact. Defendant was allowed to prove by the yardmaster that he had observed people around near the dogs, and never had any knowledge or notice that they, or either of them, were of a ferocious nature or accustomed to attack or bite mankind. Another witness for defendant, who had kept and fed the dogs, testified that she never saw them attempt to bite or attack any stranger, and, if spoken sharply to by any person, they paid no attention to it. The owner of the dogs testified that prior to the time plaintiff was bitten he never had any notice or knowledge that the dogs, or either of them, were accustomed to attack or bite mankind. Defendant was allowed to offer testimony of the habits of the dogs, and that they never manifested a vicious disposition, and most of the questions to which objections were sustained called for mere conclusions of the witnesses as to the character of the dogs, and as to whether, in the opinion of the witness, he had any reason to suppose the dogs were of a ferocious nature. find no error in the rulings.

We

It is further urged that the court erred in not allowing the yardmaster, Haskell, to testify whether the public had any right on the property where plaintiff was. Defendant proved the situation and uses of the property fully. The premises were open, and there was nothing to inform or indicate to the publie that they had no right to go there. There was no sign that dogs were kept there, and

there is no claim that plaintiff knew that dogs were there, or what sort of dogs they were. It was not error to refuse to admit Haskell's opinion as to the rights of the public resulting from the situation and uses of the property.

It is insisted that the court erred in giving to the jury, at the instance of the plaintiff, the following instruction: "In law, it is not necessary that the defendant should be proven to be the owner of the dog or dogs in question. If the jury believe, from the evidence, that said dogs were vicious, and accustomed to bite mankind, and that the defendant knowingly harbored them upon its premises, knowing them to be of a vicious nature, and used to attack and bite mankind, and if the jury further believe, from the evidence, that said dogs did lacerate and bite the plaintiff's legs and arms, as set forth in his declaration herein, then they should find a verdict in the plaintiff's favor." The objection made to the instruction is that it does not contain the requirement that plaintiff was in the exercise of ordinary care and caution for his own protection. At the request of the defendant, that requirement was placed before the jury in several instructions, and they were told that plaintiff must show that he was free from all negligence that contributed materially to the injury, that he must prove he was not guilty of any material negligence or carelessness that contributed to his injury, and that if he so conducted himself that he drew upon himself the attack of the dogs, and was thereby injured, he could not recover. The instruction objected to, however, was mandatory, and purported to state the rights of the parties and the facts which would authorize a recovery. Such an instruction must be complete in its statement of the facts which will justify a verdict, and, if any material fact or requirement is omitted, the instruction will be erroneous. An instruction of that kind is not cured by others, because, if the jury obey the instruction, they will render a verdict upon the finding of facts stated in it, regardless of the omitted fact or requirement. Railroad Co. v. Harwood, 80 Ill. 88; Mill Co. v. Morrissey, 111 Ill. 646. If it was necessary for the plaintiff to prove that he was in the exercise of ordinary care, in order to establish a liability against the defendant, that fact should have been included in the instruction which directed the jury to find a verdict in his favor. As a matter of fact there was no evidence fairly tending to show any negligence on his part. He did not know that the dogs were under the building, or that they were dangerous, and the jury could not have found him guilty of any negligence. In Keightlinger v. Egan, 65 Ill. 235, it was held error to refuse an instruction that, if the dog was irritated and aggravated to bite the plaintiff by being kicked by him, and not from being a dangerous and savage animal naturally, they should find for

the defendant, and that the plaintiff could not recover for an injury received as a result of his own carelessness and negligence. Judge Cooley says that the doctrine of contributory negligence applies to the case of injury by animals; and if a man heedlessly places himself on the premises of another, in the way of a bull which he knows to be vicious and dangerous, he has no lawful ground of complaint if he is gored. Cooley, Torts, 346. It is the rule, however, that the public are entitled to act upon the presumption that all dangerous animals are properly confined, and they need not exercise any especial care or caution for their protection. 1 Thomp. Neg. 934. In the case of domestic animals, which are not usually or naturally dangerous or ferocious, the public are not bound to exercise care or caution, without notice of the dangerous character of the particular animal. The keeper is not bound to exercise care with respect to them, in the absence of such notice, and we see no reason why the same rule should not apply to the public. The author of the article on "Animals," in the American and English Encyclopedia of Law (2d Ed., vol. 2, p. 372), says: "The better view is that contributory negligence, in its ordinary meaning, is not a good defense in an action to recover damages for injuries sustained from a vicious dog. But if a person, with knowledge of the evil propensities of a vicious dog, wantonly excites him, or voluntarily and unnecessarily puts himself in the way of such an animal, he will be adjudged to have brought the injury upon himself, and will not be entitled to recover." The author of the article on the same subject in the Cyclopedia of Law and Procedure (volume 2, p. 380) says: "In some cases it is held that plaintiff's contributory negligence will bar his right of recovery, while others hold that the owner will not be relieved from liability by a slight negligence or want of ordinary care on the part of the person injured, but that, to constitute a defense, acts must be proved, with notice of the character of the animal, which would establish that the injured person voluntarily brought the injury upon himself, or that amount to an unlawful act on plaintiff's part."

There seems to be a great diversity of opinion on this subject in the adjudged cases, depending upon the view of the court as to whether the keeper, with knowledge of the vicious nature of the animal, is liable, as an insurer, for all injuries it may inflict, or whether the liability depends upon negligence of the keeper, or whether permitting the vicious animal to be at large is such willful wrong that contributory negligence of the party injured is not a defense. In Stumps v. Kelley, 22 Ill. 140, it was said that "the principle of responsibility by an owner of an animal accustomed to commit injury to mankind, and knowing its vicious propensity, is imposed for all injuries it may inflict." But

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