text:
    Alexandra Gregoric, Administratrix, Appellee, v. Prudential Insurance Company, Appellant.
    1. Insurance—effect of acceptance of policy. When an applicant for insurance receives and accepts a policy such applicant takes it with all of its provisions and is hound hy the ternas of the policy without reference to the statements in the application. If such applicant or representative has a right of action this ¡right of action must be based upon the policy and they are bound hy the provisions of the policy the same as they would be hound hy the provisions of any other lawful contract.
    2. Insurance—what limitation of liability valid. An insurance company may lawfully limit its liability to recpvery of the premiums paid if it shall appear that the insured was not ih sound health on the date of the policy.
    3. Verdicts—when set aside as against the evidence. A! verdict will he set aside on review as against the evidence where in the opinion of the Appellate Court it is clearly and manifestly against the weight thereof.
    Action commenced before justice of the peace. Appeal from the City Court of East St. Louis; the Hon. Mobtimeb Miliabd, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 11, 1911.
    Kramer, Kramer & Campbell and C. H. G. Heinfelder, for appellant; Fordyce, Holliday & White, of counsel.
    G. C. Borders, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

This was an action commenced by appellant before a justice of the peace, appealed to the City Court of East St. Louis, and trial was there had before a jury, resulting in a verdict for the plaintiff in the amount of one hundred seventy-five dollars, upon which verdict, a judgment was rendered and an appeal taken to this court.

This suit was instituted upon an insurance policy issued by the appellant insuring the life of Mar janna Wienckienwicz and bearing date of January 17, 1910. The application for the insurance bears date of January 10,1910. Mar janna Wienckienwicz died intestate on February 10, 1910, of heart trouble. The policy issued to the deceased was for $350 and provided: “If an insured shall die within six months from the date hereof one-half the above benefit will be paid; after six months from which date the policy will be in force for the full benefit.” And the policy further provided: “1st. Preliminary Provision: The Company’s liability under this policy shall be limited to a return of the premiums paid hereon if the insured die before the date hereof or if on said date the insured be not in sound health.”

The defense of the appellant in this case was, first, that, at the time the policy was issued and delivered to the deceased Mar j anna Wienckienwicz, she was not in sound health and that the liability of the company was limited to a return of the premiums paid thereon; second, that the deceased was at the time of the making of her application afflicted with heart disease ; that she falsely represented that she was not so troubled, and that such representation was a material one and avoided the policy.

In the view we take of this case, we deem it necessary to discuss the former proposition only, as we think a determination of this question is decisive of the case. It is the settled law of this state that an insurance company may limit its liability upon an insurance policy as long as such limitation is not against public policy. In discussing the liability of insurance companies where the question of suicide by persons sane or insane was involved, our Supreme Court has said: “It can scarcely be doubted that an insurer of the life of a person may, by apt language, guard himself from liability for all disasters if the exemption does not contravene public policy. He may provide that if the assured shall die of the small-pox, or any other specified disease of the body, he would not be liable, and there appears to be no reason why he may not guard himself against liability if death results from any disease of the mind.” Seitzinger v. Modern Woodmen, 204 Ill. 58. And again, on page 67 of the same case, the court says: “It seems to be well settled that insurance companies may avoid altogether this class of risks, and that, being at liberty to stipulate against hazardous occupations, unhealthy climates or deaths from consumption or other excepted diseases, they may also contract not to assume a risk of a certain mode of death, and presumably the premiums are calculated on the elimination of that risk. If the assured is informed, in apt words, of the extent of the ' limitation, it is not perceived that there is any good reason why such contract should not be governed by the same rules of interpretation as control courts in all other cases of contract, and why plain and unambiguous words should be frittered away by causistry and refinement.” And in the same case, the court after discussing the many cases referred to upon the liability of insurance companies, where death by suicide was the result of a sane or insane person, concluded this branch of the subject by saying: “We prefer to base our decision upon the ground that the words of the proviso in the policy before us, by plain rules of interpretation exempt the insurer from liability.”

The Appellate Court, in the case of Prudential Insurance Company of America v. Fredericks, 41 Ill. App. 419, says: “And by accepting the policy and paying premiums upon it, whether that was done by the assured or by one acting for him, whether by his authority or as a volunteer, the assured and his administratrix, now representing him, have adopted the policy as it reads, with the same effect as if he had intelligently answered each question and signed his name to the application. He and his representative must adopt the whole or none of the complete transaction. It is only by adopting the policy that the appellee has any standing, and such adoption necessarily embraces all the terms of the policy.” The Appellate Court in support of this doctrine refers to many authorities which it is unnecessary for us to discuss here. We are satisfied that when Marjanna Wienckienwicz received and accepted the policy in question that she took it with all of its provisions and is bound by the terms of the policy without reference to the statements in the application. If she, or her administratrix has a right of action for her death, this right must be based upon the policy, and they would be bound by the provisions of this policy the same as they would by the provisions of any other lawful contract. This seems to be the plain settled law of this state. 1

The question then arises upon the construction of the contract or policy offered in evidence. The provision of it is that if on the date of the policy the insured was not in sound health then she would be limited to a recovery of the premiums paid, jit seems to us that this language is clear and unambiguous and that any person, in reading this policy, could not be misled as to its terms or provisions, and we think this provision was in force and that the casp should have been tried upon the theory that the provision was in force, and that the court erred in ndt giving the second and fifth refused instructions offered by the appellant. The second instruction so refused is:

“The court instructs the jury that the deceased was bound, and her administrator, the plaintiff! in this case, is bound by the conditions, privileges and provisions in the life insurance policy sued on, ¡whether the deceased knew them or not. The deceased is in law presumed to know all of such condition's, privileges and provisions.”

The.fifth instruction offered on behalf of Appellant and refused, is as follows:

“The court instructs the jury that if you believe from a preponderance of the evidence that the deceased at the time she took out the policy in ¡question was suffering from an incurable ailment and that she was not in sound health at said time, then the1 defendant’s liability cannot under the terms of the policy exceed the amount of the premium paid by1 the deceased, or for the deceased for the policy sued on.”

We think that it was reversible error in the court to refuse these instructions, under the evidence in the case.

We come now to the discussion of the facts in this case for the purpose of determining whether or not the verdict of the jury can be sustained upon the facts. It will .be borne in mind that the application in this case was made on January 10, 1910; the policy issued January 17th and the deceased died on February 10th of heart trouble. The testimony of Doctor Mesirow who says that he is a practicing physician and surgeon, and that the deceased Mar j anna Wienckienwicz came to his office on April 25, 1909, and at that time she had heart trouble and nephritis, kidney trouble, and was incurably sick, and that he told her so, and that he told her what her trouble was, her condition, and that it was incurable and that the deceased was liable to be taken off suddenly; that he treated her for a while and was called in on December 23rd and she had an acute attack and she knew then that it was her heart that was troubling her; that just prior to her death she had an acute attack when he was called in. “It was then a matter of but a few hours with her; the attack possibly started an hour or two before I was called in; it was an acute attack of the heart from which she died.” Joseph Gregorio, a cousin of the plaintiff by marriage, says that he knew Mar j anna Wienckienwicz and that she lived at her sister’s house about three or four months, and he remembers when she took out the policy of insurance and at that time she was worldng around the house; that she had not been working at any other place since she moved to her sister’s house; arid on cross-examination he says that he had known the deceased for about five years and that she had been sick several times since he knew her, but he didn’t know whether it was heart trouble or not, and that she was sick not very long before she took out the policy; that he saw her several times when she was sick. Her sister Alexandra Gregorio testified: “She used to work in a tobacco factory; she worked there all summer; she quit there just before Christmas and around about that time she used to help me wash the dishes and wash clothes around the house that way. She was not sick while she was staying with me only at the time she died.” This is substantially all the evidence upon the question as to her sickness. And while it is true that the plaintiff says her sister was not sick only at the time she died, she might not have regarded her as being sick as she was able to be around but the testimony of her cousin who was a witness for the plaintiff, and of Doctor Mesirow who was her physician, who appears fair in his testimony, both say that she was sick several times, and the doctor treated her at the house of plaintiff in December, 1909, and it is unreasonable to believe the sister did not know of her sickness. These two witnesses are disinterested and we are satisfied that they told the truth about the sickness of the deceased; that the deceased had from at least in April, 1909, been seriously afflicted with heart trouble; that her affliction was serious and dangerous and she was liable to die at any time from such affliction, and that she knew it, and we believe the verdict of the jury was manifestly against the weight of the evidence, and that the court erred in overruling appellant’s motion for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice McBride

license: Public Domain

text:
    Elizabeth Mendel et al., Plaintiffs in Error, v. Jacob Heintz et al., Defendants in Error.
    1. Wills—cardinal rule of construction. “The paramount rule in the exposition of wills, to which all others must bend, is, that the intention of the testator as expressed in the will must be ascertained and given effect if not prohibited by law.”
    2. Wills—when estates vest. "It has long been the settled rule of construction in the courts that estates, legal or equitable, given by will should be regarded as vesting immediately, unless the testator has by very clear words manifested an intention that they should be contingent on a future event.”
    3. Wills—when estates vest. If the postponement of time of payment is for the benefit of the estate, a gift will vest immediately upon the death of the testator.

      Bill in chancery. Error to the Circuit Court of Monroe county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 11, 1911.
    Joseph W. Rickert, for plaintiffs in error.
    A. C. Bollinger, for defendants in error.
   Mr. Justice McBride

delivered the opinion of the court.

This was a bill in chancery filed September 13, 1909, to enforce a testamentary lien, to which a demurrer was interposed and sustained; afterwards on February 14, 1910, an amended bill was filed in said cause introducing therein additional parties. The amended bill is presented by Elizabeth Mendel, nee Miller, wife of George Mendel, and Arthur Miller, a minor, by said Elizabeth Mendel, his next friend, children and heirs of Katherine Miller, nee Saathoff, and William Saathoff, and Mary Guebert, a widow of John Guebert, deceased, and heirs of John Saathoff, deceased, and represents that their grandfather, Henry Saathoff, late of Monroe county, Illinois, departed this life testate on February 4, 1865, leaving Anna Saathoff, his widow, and John Saathoff, Voelkers Saathoff, Katherine Saathoff, Margaret Saathoff and Rosine Saathoff, only children, heirs and legatees him surviving, and that the said Henry Saathoff was at the time of his death the owner and possessor of a large amount of personal property, together with notes, mortgages, moneys and effects, and was also then seized in fee of the west half of the southwest quarter of section 17, and the northeast quarter of the southeast quarter of section 18, and a strip of land thirty feet wide off of the west side of the east half of the northwest quarter of section 20, all in township 2, S. R. 9 W., Monroe county, Illinois. That the said Henry Saathoff in his lifetime on, to wit, November 30, 1864, executed his will which provides as follows:

‘‘ First. It is my will that my funeral expenses and all my just debts be fully paid. Second. After payment of all funeral expenses and just debts, I give, devise and bequeath unto my beloved wife Anna Saathoff, all my lands I own and possess described as follows: west half of the south east quarter Section 17 and north east quarter South east quarter Section 18 and a strip of land thirty feet wide off of the west side of the east half of the north west quarter of Section 20 all in Township 2 S. Range 9* West Monroe County Illinois. Said last described , thirty feet are for a road only leading from the said ’eighty South to the Belleville road in said County, and her heirs and assigns forever, also all my notes,! mortgages, moneys and effects in fact all my personal property I own and possess at my death in lieu of her dower with the following conditions, that is to say my said wife Anna Saathoff shall pay to my son John Saathoff two hundred dollars on the day of proving up this will and shall pay to my son Voelkei Saathoff one thousand dollars after, my death and when he- arrives at the age of twenty one years and shall pay to my daughters Katherina Saathoff, Margaret Saathoff and Rosina Saathoff each the sum of five hundred dollars and payable after my death and! when the said daughters arrive at the age of eighteen years should any more children be born to my wife by me begotten then each child so born shall receive five hundred dollars from my said wife who (when) such children shall arrive at maturity all of said claims shall bear six per cent interest after they or each of them become due until paid and to secure said claims and payments to my said several children I hereby charge the same on the said land in the nature of a mortgage and until the last claim is paid and mjr said wife shall not have any right to sell or dispose of the same until the last claim shall have been paid or secured to each of my said children afore named and those unborn if any and which shall be the full share out of my said estate real or personal my said children are to receive and no more my wife need not give any security before the County Court or the Court wherein this will is probated as I have but (no) debts and the legacies having been secured on the said land.”
“And lastly I hereby appoint my said wife to be my executrix of this my will revoking all former wills by me at any time heretofore made and I ratify and confirm this and no other and my wife aforesaid shall pay all my debts in fnll out of my personal estate.”

The bill further alleges that Anna Saathoff qualified as such executrix and that the total amount of the personal property was $1,600 and the indebtedness $295.15. That on September 27, 1865, the said Anna Saathoff intermarried with the defendant, Jacob Heintz; that on November 9, 1865, Eosina Maria Saathoff, one of the above legatees, departed this life in infancy, unmarried and intestate, and left her surviving her mother, Anna. Heintz, John Saathoff, Voelke Saathoff, Katherina Saathoff and Margaret Saathoff, her brothers and sisters and only heirs at law; that on May 3, 1872, the said Margaret Saathoff, legatee aforesaid, departed this life in infancy, unmarried and intestate and left her surviving her mother, Anna Heintz, and her brothers and sisters, John Saathoff, Voelke Saathoff, Katherina Saathoff and Minnie Heintz, a half sister, and Adam J. Heintz, a half brother; that Katherina Saathoff intermarried with one Jacob P. Miller and departed this life intestate on December 3, 1894, and left her surviving her husband, Jacob P. Miller, who afterwards on December 15, 1907, died intestate, both of whom, the father and mother, left them surviving as their only children and heirs at law, Elizabeth Mendel, nee Miller, and Arthur Miller; that on May 28, 1862, said John Saathoff' departed this life intestate and left him surviving, his widow and his children, William Saathoff and Mary Guebert, and on February 16,1905, the said Anna Heintz, former wife of Henry Saathoff, departed this life testate; that she executed her will on November 4, 1872, and by said will she devised all her real estate, iU'cluding the lands above described, to her husband, Jacob Heintz, in fee, subject to the payment of all the legacies which are made liens on said land until paid as provided in the last will of Henry Saathoff, her former husband; that on June 19, 1909, the said Jacob Heintz sold and conveyed all of the lands above described to Frank Einwich for an express consideration of $3,700, and that the complainants through the death of their several ancestors, and by reason of the death of Katherina Saathoff and Eosina Maria Saathoff became entitled to a portion of the money above devised by Henry Saathoff to Katherina Saathoff and Eosina Maria Saathoff.

The bill also alleges that the said legacies were not paid to the said Katherina or Eosina Maria Saathoff, or to any of their heirs or legal representatives, and prays that Jacob Heintz may be decreed to-pay complainants whatever sum shall appear to be due them upon taking such account, and that in default of such payment the above described land may be sold to satisfy the same. To this amended bill the defendant Jacob Heintz filed his demurrer and states therein “for cause of demurrer shows that the said complainants have not in and by their amended bill of complaint filed herein, shown that Eosina Maria Saathoff and Margaret Saathoff, or either of them, had at the time of their death any vested interest in and to the legacies of which the complainants seek to recover a part, and that as shown by said amended bill said Eosina Maria Saathoff and Margaret Saathoff did not at the time of their death have any interest in or to said legacies or any part thereof.” The demurrer was sustained to the bill. Plaintiffs in error excepted and elected to stand by the bill and prosecute this writ of error.

The decision of this case involves a construction of the will of Henry Saathoff; and the sole question under the pleadings herein is, did the legacies given by the will of Henry Saathoff to Katherine Saathoff and Eosina Maria Saathoff vest at the "time of the death of the testator or was the vesting thereof postponed until the said children respectively became of the age of eighteen years ?

It is disclosed by the bill that Henry Saathoff was possessed of only about $1,300 worth of personal property, in excess of his indebtedness, at the time of his death, and the one hundred twenty acres of land devised to his widow which many years afterwards sold for $3,700. That he left his widow and five children, four of whom were minors, and the above mentioned property was the only means, so far as appears from the bill or the will, that Anna Saathoff had of maintaining and educating these children, and the paying off of the legacies mentioned in the will. We agree with counsel, that we cannot be governed entirely in the construction of this will by the adjudged cases, as the construction of each will depends upon the context, and the whole of the will must be taken into consideration in each particular case; to the construction of which we must apply the fundamental principles and from these determine the intention of the testator. “The paramount rule in the exposition of wills, to which all others must bend, is, that the intention of the testator as expressed in the will must be ascertained and given effect if not prohibited by law.” Armstrong v. Barber, 239 Ill. 389.

It has also been held: “It is a cardinal rule in the construction of wills that the testator’s intention, as indicated by the words used, shall be ascertained from a consideration of the entire instrument, and each clause, sentence and word thereof be given meaning and effect if it can be done.” Vanatta v. Carr, 223 Ill. 160.

It has also been determined that a cardinal rule, in the construction of wills, is that estates should be regarded as vested immediately upon the testator’s death, and as has been well said, “It has long been the settled rule of construction in the courts that estates, legal or equitable, given by will should be regarded as vesting immediately, unless the testator has by very clear words manifested an intention that they should be contingent on a future event.” Armstrong v. Barber, supra; Grimmer v. Friederich, 164 Ill. 245.

It is also said by our Supreme Court: “The law favors the vesting of estates at the earliest possible moment, and estates devised will vest in interest at the death of the testator unless some later time for their vesting is clearly expressed by the words of the will or by necessary implication therefrom.” Carter v. Carter, 234 Ill. 507.

Jarmin on Wills, Vol. 2,406, says: “The law is said to favor the vesting of estates; the effect of which principle seems to be, that property which is the subject of any disposition, whether testamentary or otherwise, will belong to the object of gift immediately on the instrument taking effect, or so soon afterwards as such object comes into existence or the terms thereof will permit.- As, therefore, a will takes effect at the death of the testator it follows that any devises or bequests in favor of a person in esse (i e. without any intimation of a desire to suspend or postpone its operation) confers an immediately vested interest.”

We come now to the application of these principles to the terms of the will in question for the purpose of determining, as best we can, the intention of the testator. The language of the will is, “and shall pay to my daughters Katherina Saathoff, Margaret Saathoff and Bosina Saathoff each the sum of five hundred dollars and payable after my death when the said daughters arrive at the age of eighteen years.” It will be observed that this gift and the time of payment is fixed by two clauses; the first clause provides that the executrix “shall pay to my daughters Katherina Saathoff, Margaret Saathoff and Bosina Saathoff each the sum of five hundred dollars,” and if this was the whole of the sentence the gift would be complete and no one would question but what the five hundred dollars was payable immediately upon the testator’s death, but to prevent his widow from being required to pay these immediately upon his death he further provides, “and payable after my death and when the said daughters arrive at the age of eighteen years,” and we think that the testator evidently meant, first, to give this legacy to the daughters and then to provide that the mother should have ample time in which to pay it.

It is said by Underhill in his valuable treatise on Wills, page 668, sec. 508: “The following rule has been laid down by the authorities (but which it is admitted must vary according to the circumstances of the case, showing an intention by the testator that the estate shall or shall not vest); a bequest to a person ‘payable’ or ‘to be paid at’ or ‘when he shall attain’ twenty-one years of age creates a present vested interest, for the words ‘payable’ or ‘to be paid’ do not refer to the time of the vesting of the bequest but only to the time of its payment, and nothing shows that an immediate vesting is not intended. The gift vests as if no time was mentioned.” And we think the case of Ruffin, Admx., v. Farmer, Admr., 72 Ill. 615, is also in point on this question. It is said by Justice Boggs in the case of Kelly v. Gonce, 49 Ill. App. 82: “A distinction is to be drawn between a gift to such children as shall arrive at legal age, and a gift to children to be paid when or as they arrive at legal age. In the first instance the gift is contingent because it cannot be known at the death of the testator whether a donee will be found at the proper period of time to take, while in the latter instance the donee is known at the time of testator’s death, the gift settled upon him, and its payment only deferred. When the donee is known the gift is said to vest in interest at once, and though such donee does not survive to take possession of the subject-matter of the gift, his interest and right of possession passes upon his death to his legal representatives.” And we think that the use of the word “payable” indicates that the testator had fixed an amount to be paid and then proceeded after-wards by the use of this and «the following words to say when it should be paid.

Again he says “and to secure said claims and payments to my said several children I hereby charge the same on the said land in the nature of a mortgage,” indicates to our mind that the testator had in his mind a fixed fact that he had given something to the said children and he wanted to secure that to them so they would be certain to receive it, and made the same a charge on the land.

Another rule to be observed is that if the postponement of the time of payment is for the benefit of the estate that a gift will vest immediately upon the death of the testator.

Counsel for appellee insists in his brief that the postponement of the payment of the legacies herein referred to could not have been for the benefit of the estate. We cannot agree with counsel in this contention. The rule of law as he concedes is, that if the payment is deferred for the benefit of the estate, that this will be a strong reason for determining that the legacy vests immediately upon the death of the testator. Our Supreme Court has carried this rule to the extent that even though there be no other gift than in a direction to pay and distribute in futuro, yet if such payment or distribution appeared to be postponed for the convenience of the fund or property, the gift in remainder will not be deferred until the period fixed for payment but will vest at once. Scofield v. Olcott, 120 Ill. 362; Dee v. Dee, 212 Ill. 338.

This rule is admitted by counsel for appellee to be the law, but he argues that the facts in this case would not warrant the assumption that the payment was postponed for the benefit of the estate for he says there is a strong presumption that he had a surplus of personal property, and that because he had devised the land to his wife in fee no such presumption could arise, and claimed that the only ground for such contention is that the legacies were made a charge upon the land devised in fee to the wife. We think that having made the legacies a charge upon the land that the testator recognized that they were existing obligations from the time of his death that were to be paid; and we think even a stronger reason than this exists in the fact that it is disclosed, by this record, that the testator had at the time of his death in personal property, notes and credits only the amount $1,307.85 in excess of his debts and the one hundred twenty acres of land in question; that he left four minor children. This land was encumbered with legacies to the amount of twenty-seven hundred dollars. The testator certainly realized that the widow could not maintain and educate this family of children and pay the legacies that he had charged against the land unless she had time to make it out of the land, which would probably require many years, and that he no doubt thought that by making these payments, as the children would arrive at their age, that she would have the opportunity to produce it from the lands; and it was undoubtedly a benefit to the estate that he provided that the payments of these legacies be postponed to a future time.

It follows that the court erred in sustaining the demurrer to the complainants’ bill, and the decree of the Circuit Court is reversed and the cause remanded with directions to the Circuit Court to overrule the demurrer.

Reversed and remanded.


text:
    Robert S. Shook, Administrator, Plaintiff in Error, v. Majestic Coal & Coke Company, Defendant in Error.
    Master and servant—when doctrine of assumed rish applies. If an experienced servant, of mature years, knowing the |Conditions under which the work in which he was engaged was performed, continues in the service of his master, he is deemed to have -assumed the risk incident to such service. Held, in this 'case, that the colliding of cars which caused the injury was not an extraordinary risk but was one which had been assumed. i
    Shirley, J., dissenting.
    Action in case for death caused by alleged wrongful - act. Error to the Circuit Court of Perry county; the Hon. W. E. Hadley, Judge, presiding. Heard in this court at the March t^rm, 1911.
    Affirmed.
    Opinion filed November 11, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    H. E. Kimmel and William A. Schwartz, for plaintiff in error.
    Dan McGlynn, for defendant in error.
   Mr. Justice McBride

delivered the opinion; of the court.

This suit was commenced by the plaintiff in error against the defendant in error in the Circuit Court of Perry county, Illinois, and disposed of at the November term, 1910, of said court. A trial was had before a jury, evidence heard on behalf of plaintiff and at the close of plaintiff’s testimony the court directed the jury to find the defendant not guilty, and a verdict was rendered accordingly. Motion for a new trial made by plaintiff and overruled and the, cause is brought to this court upon a writ of error.

It appears from the record in this case that on January 22, 1909, and prior thereto, the defendant in error was engaged in the business of mining and shipping coal at Perry county, Illinois; that there were three tracks at this mine, the east track being used for loading the cars with lump coal, the west track for the loading of cars with screenings and the middle track with the loading of egg" coal; that the egg track extended north and from the point of intersection of the other two tracks north, was known as the middle track; that the lump track and screening track connected with the said egg track at the distance of about 60 yards from the plant. The cars were loaded by running them under a tipple, located over these tracks; there was also a shaker screen operated by an engine located west of the screening track. The egg track, north of the point where the other two tracks connected with it, was used as a place for storing empty cars, and as the cars were needed from time to time they were brought down upon such of the tracks, as they were required to be used. There was always a passageway left between the cars under the tipple and the empty one next to it so that Adams could go through this passageway from his work on the lump track to his work on the egg track and shaker engine. Jackson Adams’ work was on the egg and lump coal tracks, and caring for the engine, and as the cars would come down upon these tracks he would scotch them and hold them until they were ready to be used; he would then remove the scotch and let them down to the tipple to be loaded. In going from the lump track to the shaker engine he would pass the egg and screening tracks. On January 22, about three o’clock, the mine temporarily stopped hoisting but the shaker engine was still running, and Adams and the other men at work passed over to a point between the egg track and lump track and were there standing by a fire. At the time of the injury there was on the egg track a car under the chute being loaded and two empty cars just north of it. The egg track would hold three fifty-ton cars but not in the clear, unless one move had been made of the car under the chute being loaded. There were three fifty-ton cars standing on the egg track at the time of the injury; they didn’t clear the way for the car coming in from the north. It was the business of a workman by the name of Martin to bring the cars down from the empty track on to the other tracks as they were needed from time to time. Martin was called the car rider and generally stopped the cars when he brought them down but when there were no cars on the track sometimes Adams helped him. Adams and Kirkpatrick looked after the cars on the egg and lump track. One move under the tipple is about four or five feet. When standing by the fire Brown directed Purdy, Mann, and Kirkpatrick to load a car out of No. 4 bin; they left the fire and Adams remained there. About this time Brown the foreman directed Martin, the car rider, “go up and get two cars and put them on the screening track right away.” Martin went up to run the cars from the empty track on to the screening track. At ■the time that Brown gave this order he was standing about twelve feet from the north end of the cars on the egg track, facing Martin, with nothing between Brown and the cars. Martin usually determined whether the cars- coming down on the screening track would clear the car standing on the egg track by extending his arm; he did not do that on this occasion but, as he says, supposed - the cars would clear and started two cars down on the screening track and as they moved -south they struck the empty cars that were standing on the egg track. About this time Adams was passing from the fire across the egg track towards- the engine room with a pair of slickers or rain pants in his- hands ostensibly for the purpose of hanging them up in the engine room; as he passed over the egg* track the car that had been bumped by the cars passing on the screening track caught him between the coupling of that car and the one that was being loaded and killed him.

The witness Martin says:

“I had not been about the fire where Mr. Adams was; I had been getting cars down; I had just brought one car on the egg track; one was already standing there; there were three cars in all on the egg track; I brought the one under tipple; do not know whether it had been moved under the tipple or not; one move on a car under the tipple is about four or five feet; it had been probably an hour before the injury that I brought the car in that was under the tipple on the egg track; I had brought others in on the other tracks after I brought it in; I brought the one north of the one being loaded under the tipple in, then brought some on the lump track and then brought the second car on the egg track; that is the last one on the egg track; I was then standing on the end of the car by the brake; men had been passing between the cars, going back and forth across the track, ever since I had worked there; that was the custom; no one looks out for them that I know of when they go between these cars; as far as I know, there was no one there to look out for them as long as I worked there; when Brown told me to get the two cars for the screening track I was still on the car I had just brought down; I had stopped the car with the brake; I had let this car ease against the car ahead; I do not know how long he staid there after giving me the order; he was there when I left; I had to go about one hundred yards; the empty cars were about 112 to 125 yards north of the scale; it was about 115 yards from where I left the car to where the empty cars were; I brought down a forty and a fifty ton car; I thought the fifty ton car was farthest south but I don’t remember; I rode the fifty ton car; I controlled them by a brake; no one else had control of the cars; no one controlled these cars when I brought them down, as I did these, except myself; I had a right to stop them when I thought it necessary; I did not see whether the cars would clear or not when I was bringing them down; do not know whether first car was a forty ton and passed the clearing place or not; in determining whether the car was in the clear I stood upright with my right foot on the rail, standing sideways, and extending my right arm (indicating), and if your hand touched the car it wouldn’t clear; I did not determine it on this occasion; Mr. Brown was not there when the cars came down that I saw; I do not know how long he remained there after giving me order; cars did not lack much of clearing, about two inches I think; cars caught on the corners of frames; car on egg track was wooden bed and the others were1 steel bed.”

Adams had nothing to do with the cars brought down on the screening track; Adams had been engaged at work in this mine in caring for the engine and moving the cars under the chute for about two years and Martin says that he had worked as car rider about three months before Adams was injured, and during that time other cars collided as those did at the time Adams was injured; that occurred some two or three times a day and sometimes it didn’t occur at all. The witnesses all agreed that the business at this time was being conducted in the usual and customary way of conducting the business at that mine, and that the men in passing to and fro through this passageway looked out for themselves, and there is but little variance in the testimony of the several witnesses.

There were two counts in the declaration upon which a trial was had, and were called the first count ap.d the fifth count. The first count charges substantially, that the defendant negligently and carelessly ran an ¡empty car down the empty track to and on the screening track so as to cause the same to come into collision with an empty car standing on the middle or egg track, thereby putting it in motion and causing it to move down and against the car under the chutp with great force and violence and caught the said Jackson Adams between the said cars while he was passing between them in the exercise of due care.

’ The fifth count charges that the defendant by and through one Allen Brown, its foreman, ordered Adam Martin to go up the incline and turn loose some 'empty cars without first ascertaining whether the cars that were on the egg switch had so cleared the junction of the .third switch that the cars coming down on the screening track would not strike the cars standing on the egg track, whereby the said Jackson Adams was caught between the two cars as they came together and as a result of such collision was killed.

At the conclusion of plaintiff’s evidence a motion was made by the defendant to exclude the evidence and direct a verdict for the defendant, which motion was allowed, the evidence excluded and the jury directed to find the defendant not guilty, which it did and the verdict was accordingly returned.

It is claimed by counsel for plaintiff in error that the court, under the testimony, erred in directing a verdict for the defendant. It is contended by the defendant in error that the court was justified in directing a verdict, first, because under the evidence the deceased assumed the risk; and, second, that the act of negligence, if any, was that of a fellow servant, and for that reason the defendant was not liable for the injury to the deceased.

In discussing the question as to whether or not this was an assumed risk, it is well to review some of the authorities upon this question in order that we may arrive at the true principle, and correctly apply it to the facts in this case. Jackson Adams was a man of mature years; had been engaged at this same work for about two years and knew the manner of handling the ears, bringing them down upon the several tracks and loading them at the mine; at least whether he actually knew these things or not, he is presumed in law to have known them, and is presumed to have known that it was a frequent occurrence that in bringing cars from the empty track on to the screening track that they collided with cars standing upon the egg track; and we think, that as he knew the conditions under which the work was performed and continued in the service of the defendant, that he assumed the risk incident to the services and that the colliding of the cars was not an extraordinary risk or a special occurrence, hut having happened two or three times a day, frequently, as the witnesses testified, it certainly became one of the risks incident to the manner of conducting the business at this mine, and whether or not the mode adopted was the safer one could not be invoked by the deceased or his legal representatives to avoid the doctrine of the assumption of risk. “It is the settled law that the servant, when he engages in the employment does so in view of the risk .incident to it; that he will be presumed to have contracted with reference to such risks and assume tjhe same, and that if he receives an injury resulting from the incidental risks and hazards ordinarily connected with the employment he cannot hold the master responsible.” Cooley on Torts, 521; 20 Am. Enc. of Law (2nd Ed.), 109.

The rule also applies in any case where the servant during the course of his employment becomes aware of a defect but voluntarily continues in the' employment without objection. Following the universal rule, this court has stated this principle in numerous cases, among which are the following: It is said in Simmons v. Chicago & Tomah R. R. Co., 110 Ill. 340: “If a servant knowing the hazards of his employment as the business is conducted, is injured while engaged therein, he cannot maintain an action against the master' for the injury merely on the ground that there was a safer mode in which the business might have been conducted, the adoption of which would have prevented the injury.” In the case of Chicago & Eastern Ill. R. R. Co. v. Geary, 110 Ill. 383, the court said: “The rule is as contended by counsel for appellant, namely, when an employe after having the opportunity to become acquainted with the i risks of his situation, accepts the same, he cannot complain if he is subsequently injured by such exposure. One may, if he chooses, contract to take the risks of a known danger. Presumptively, lie charges in such case in proportion to the risk or rather for the risk.” In the case of Herdman-Harrison Milling Co. v. Spehr, 145 Ill. 329, it is said: “As between employer and employe the latter assumes all the usual known dangers incident to the employment or service; and that he also takes upon himself the hazards of the use of defective tools and machinery, if after his employment, he knows of the defect but voluntarily continues in the employment without objection.” These are familiar rules of law often recognized by the decisions of this and other courts.

In East St. Louis Ice & Cold Storage Co. v. Crow, 155 Ill. 74: “If the injury was the result of obvious defects in the barge where he was working, or from causes known to him, or which he might have known in the exercise of due care, he cannot recover.” * * * “It is also the general rule that an employe of sufficient age and experience is chargeable with knowledge of the ordinary conditions under which the business is conducted and its ordinary risks and hazards, and will be presumed to have notice of and to have assumed all such risks and hazards which to a person of his experience and understanding are, or ought to be, patent and obvious.” C. & E. I. R. R. Co. v. Heerey, 203 Ill. 492-6-7.

Counsel for plaintiff in error seek to avoid this principle by invoking the doctrine that it is the duty of the master to furnish the servant with a reasonably safe place to work, and that the servant does not assume the risk of the negligent acts of the master, and many of the authorities to which we have been referred by him are claimed to be in support of these propositions. It is probably true, as an abstract- proposition of law, that it is the duty of the master to furnish the servant with a reasonably safe place, and that a servant does not assume the risks of the negligent acts of the master, but these principles are limited by the authorities by the further doctrine that if the servant knows that the place furnished is not reasonably safe, or knows of the negligent acts of the master, then the' doctrine is not applicable, and the servant would not be relieved simply because of the master’s failure in such respects. The Supreme Court, in the case of C. & E. I. R. R. Co. v. Heerey, supra, says, on page 501: “The first part of the instruction was correct. As a matter of law the employe does not assume risks arising from the negligence of the master unless he is chargeable with knowledge of the fact of such negligence and of the defect or risk. ’ ’ In the case of Kath v. E. St. L. Suburban Ry. Co., 232 Ill. 126, it is said: “The court gave to the jury the following instruction upon the question of assumed risk, ‘The court instructs the jury that the servant only assumes the ordinary risks of the business, that is the risks which are so open and obvious that they may be discovered by the servant by the use of ordinary care, and the servant also assumes such risks as are known to him; but the servant does not assume extraordinary risks which are unknown to him and which could not be discovered by the exercise of ordinary care, and he does not assume risks due to the master’s own negligence.’ This instruction was clearly wrong in that it informed the jury that the deceased did not assume risks due to the master’s own negligence, as the authorities uniformly hold that an employe assumes all risks connected with the business in which he is employed, and of which he has notice, even though they are produced by the negligence of the master, if he continues in the employment.” Again, in the same case on page 132, thé court says: “The deceased had passed over said track while operating his car, at the point where he was injured, daily from April to December, 1904, and in the very nature of things must have known the ¡situation of said pole and the condition of said track at that point, and knowing said conditions he assumed the risk of being injured therefrom. In Camp Point Mnf. Co. v. Ballou, 71 Ill. 417, the doctrine was announced, which has been frequently reiterated by this court, that an employe cannot recover for an injury suffered in the course of the business in which he is engaged, from the defective condition of the machinery or appliances used therein, after he has knowledge of such defective condition, unless he continues his employment under a promise to repair, and it has repeatedly been held that an experienced adult employe is chargeable with knowledge of the ordinary conditions under which the business in which he is employed is conducted and assumes its ordinary risks and hazards, and will be presumed to have notice of and to have assumed all such risks and hazards which to a person of his experience and knowledge are or ought to be patent and obvious, (Chicago & Eastern Illinois Railroad Co. v. Heerey, 203 Ill. 492) and that an employe assumes all hazards which are obvious and apparent and which are known to him, although such conditions are produced as the result of the master’s negligence, if he continues in his employment without a promise to remedy such defects.” Browne v. Siegel, Cooper & Co., 191 Ill. 226; Elgin, Joliet & Eastern Ry. Co. v. Myers, 226 id. 358.”

Again, in the case of E. J. & E. Ry. v. Myers, 226 Ill. 358, the same doctrine announced in the case of C. & E. I. Ry. Co. v. Heerey, is quoted and approved.

We are of the opinion that the limitations upon the duties of a master as above set forth are fully sustained by the authorities herein above cited, and many more to which reference could be made.

Counsel for plaintiff in error have referred us to several cases showing where the servant has been injured and recovered because of the failure of the master to furnish him a reasonably safe place to work, but an examination of these cases will disclose that while the place was unsafe, the servant had no knowledge of its unsafety and was for that reason allowed to recover. In the case of Libby, McNeill & Libby v. Scherman, 146 Ill. 540, it was expressly held that the injury was caused by an extraordinary risk and the evidence tended to show that the head of the defective barrel had been knocked in and contents removed a few minutes before the workmen quit the work on the evening before, and that on next morning the accident happened, and that the plaintiff was injured, but the case recognizes all the way through that the servant assumed the ordinary perils. In the case of Donegan v. Hately et al., 152 Ill. App. 96, the plaintiff in that case had taken only two or three loads down the runway prior to his injury, and the court properly held that he could not say as a matter of law, under such circumstances, that it was an assumption of risk. In the case of Missouri Malleable Iron Co. v. Dillon, 206 Ill., the accident was caused by a hole in the floor, and the court says there on page 152: “The evidence is clear and conclusive that the appellee had no knowledge of this hole in the floor while he was so at work, or prior to his entering upon the work.” In the case of Kennedy v. Swift, 234 Ill. 606, “the hook used by the servant was defective and the servant was not familiar with the condition of the hook, and had no time after being sent upon the plank to examine the hook or plank and for that reason it was held that it was not an assumption of risk.”

We think an examination of all the cases will disclose that this distinction has been borne out by the courts.

Again, it is claimed by counsel that this was an act of the master, and that it was a negligent act and performed under a specific order of the master; but we do not agree with this contention. The servant Martin was regularly in the performance of driving the cars from the empty track down on to the other tracks, as they were needed, and bringing from time to time such cars as directed, and we regard the order here spoken of as simply a general direction to do work within Martin’s regular line of employment. There is no specific direction to Martin to work in a particular place or in a particular manner; he was left free to exercise his own discretion as to the manner in which he should do the work, and there was no peremptory direction about it, and for that reason does not fall within the rule invoked, even if the rule were applicable to this case. See cases of C. & A. Ry. Co. v. Landroth, 123 Ill. App. 656; Linderman Box & Veneer Co. v. Thompson, 127 Ill. App. 134.

We do not think that the direction given as shown by the evidence in this record in any manner relieves the deceased from the risk assumed by him in the performance of this work. We are also inclined to the opinion that the deceased and Martin were in law fellow-servants, but in the view that we take of this case, from what has already been said, it is not necessary to discuss the question of fellow-servant.

We are of the opinion that as the deceased, as a matter of fact and law, had knowledge of the conditions as they existed at that mine, and in the handling of that coal and the operation of the cars upon the different tracks, he assumed the risk of the work, and that the court was warranted in directing the jury to return a verdict for the defendant and in overruling plaintiff in error’s motion for a new trial, and the judgment of the Circuit Court is affirmed.

Judgment affirmed.

Me. Justice Shibley, dissenting.


text:
    Ivan Falconer, Appellant, v. May, Stern & Company, Appellee.
    1. Infants—when personally liable. An infant is liablé for the value of goods purchased by him if they are necessary for his proper support and maintenance.
    2. Infants—right of disaffirmance. “There is no difference between executed and executory contracts, so far as the right of disaffirmance is concerned.” I
    3. " Infants—effect of disaffirmance. When a minor disaffirms his contract recovery must be predicated upon the fact that the minor had incurred an obligation for necessaries of life. ®
    4. Infants—how extent as to what are necessaries determined. While it may be true that the court may determine as a matter of law whether or not goods of a particular class fall within the rule of necessaries of life, yet it is a question of fact.to be determined by the jury whether or not the particular goods furbished to the individual infant are necessaries and suitable to his estate and condition in life. ¡
    Action commenced before justice of the peace. Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 11, 1911.
    Miller, Hinde & Miller, for appellant; W. R. Weber, of counsel.
    H. A. Loevy and William P. Launtz, for appellee.
   Mr. Justice McBride

delivered the opinion bf the court.

A'judgment was rendered in favor of the plaintiff and against the defendant before a justice of peace of St. Clair county, for two hundred dollars, on January 26, 1910, from which judgment the appellee appealed to the Circuit Court of St. Clair county. On November 4, 1910, a trial of said cause was had in the Circuit Court and a verdict for the defendant was directed by the court, from which an appeal is prosecuted to this court, ,

The facts in the case are, that on about December 12, 1906, the plaintiff, Ivan Falconer, who was then a minor, purchased household goods from appellee for which he agreed to pay $326.90, in monthly installments of $17.50; the first installment being payable January 10, 1907, and the other installments on the 10th day of each succeeding month; and to secure the payment of this the appellant, Ivan S. Falconer, executed to appellee a chattel mortgage upon the goods purchased. Ivan S. Falconer became seventeen years of age.on September 25, 1906. He paid from time to time, in cash and other credits, $244.90 upon the said goods. He was married on December 13, 1906, and the goods so purchased were used by him and his wife in keeping house in East St. Louis. He made default in some of the payments, and, as the record discloses, was from ninety to one hundred dollars in arrears, and the appellee instituted a suit of replevin before W. J. Flanagan, a justice of the peace, and obtained a judgment before said justice for the' possession of said goods, and costs of suit. No defense was made and no appeal taken from this judgment. That after the goods had been replevied and judgment given for possession of them, the appellant instituted this suit by attachment against the appellee before a justice of the peace for two hundred dollars; judgment was rendered in favor of the appellant before said justice, from which the appellee took an appeal to the Circuit Court. The cause was tried twice in the Circuit Court, the second trial being on or about November 4, 1910. Upon this trial the court directed a verdict for the appellee, upon which judgment was rendered and the cause is brought to this court by appellant. Upon the trial of the case plaintiff proved the amount he had paid upon the household goods in question, and that at the time of the purchase he was a minor; that the goods had been replevied from him by appellee and had not been returned and that he disaffirmed the contract of purchase. The defendant offered in evidence the transcript of the docket of W. J. Flanagan, justice of the peace, showing that the goods had been replevied by appellee on about November 6, 1909; he also offered in evidence the note and mortgage given by appellant for the goods in question, to the introduction of which note and mortgage the appellant objected. This was all of the evidence offered in the case.

Complaint is made by the appellant: first, that the court erred in the admission of the chattel mortgage and note in evidence; second, in the granting of the motion directing the jury to find the issues for the defendant; and third, in entering judgment against the plaintiff in bar of the action upon said directed verdict.

We will first notice the question made as to whether or not the court erred in directing a verdict. It seems to be the settled law that an infant is liable for the value of goods purchased by him that are necessary for his proper maintenance and support. This liability arises not out of any particular contract that may have been made between the infant and the vendor of the goods, but out of the law which permits vendors to furnish necessaries to minors and to collect from them the reasonable value of the goods so furnished,, but the minor cannot bind himself by note or otherwise to pay a particular amount for such goods. It has been said by our Supreme Court, in the case of Bliss v. Perryman, 1 Scammon, page 484, 486, “An infant cannot bind himself by bond even for necessaries.”

It is said by Judge Higbee in the case of Morton v. Steward, 5 Ill. App. 533: “An infant is not capable of stating an account or binding himself by note- or agreement to pay a particular price or sum for necessaries. It has been repeatedly held that while the infant is responsible on a quantum valebant for the value of the necessaries, his pote for the amount wqs not binding, becanse this determined that amount, positively, and it was necessary for the infant’s effectual protection that this should be open to inquiry.” Also see Parsons on Notes and Bills, Vol. 1, p. 68.

In regard to the right of an infant to disaffirm his contract, our Supreme Court has said: “There is no distinction between executed and executory contracts, so far as the right of disaffirmance is concerned.” Wuller v. Chuse Grocery Co., 241 Ill. 398.

It seems to us, from the doctrine announced from these and other decisions, that when .a minor disaffirms his contract, that then, so far as the contract itself is concerned, the obligee cannot recover npon the contract, but must rely upon the. fact that the supplies purchased by the infant were necessaries of life and content himself with recovering the reasonable value thereof.

The next question arises is, Was it a question for the court or for the jury that was trying the case, to determine whether or not the articles furnished were necessaries of life? It has been said by our Supreme Court: ‘1 There is no positive rule by means of which it may be determined what are, and what are not necessaries. Whether articles are of a class or kind for which infants are liable, or whether certain subjects of expenditure are necessaries, are to be judged of by the court. Whether they come within the particular class, and are suitable to the condition and estate of the infant, is to be determined by the jury as matter of fact.” McKanna et al. v. Merry, 61 Ill. 177.

While it may be true that a court may- determine, as a matter of law, whether or not goods of a particular class fall within the rule of necessaries of life, yet it is a question of fact to be determined by the jury whether or not the particular goods furnished to the individual infant are necessaries and suitable to his estate and condition in life ; and we think in this case that the question as to whether or not the goods sold to the appellant were necessaries and suitable to his condition in life was a question of fact to be determined by the jury, and should have been submitted to the jury. If they were not necessaries of life and suitable to his condition and estate in life, then, although payments had been made, the appellant would be entitled to recover such payments, as it clearly appears that he was not in a position to restore such goods. Wuller v. Chuse Grocery Co., supra.

It follows from what we have said, that the court erred in directing a verdict for the appellee in this case. We do not see what effect, if any, the :suit of replevin and the judgment therein giving appellee possession of the goods could have upon the trial of the case, as it is immaterial how he obtained possession; the only question was, Did appellee have the possession?

As to the introduction of the note and mortgage in evidence, we think that was error, because whether they were, or were not given for necessaries, if executed by an infant, as the evidence clearly shows, then the infant had the right to disaffirm such note and mortgage, and upon such disaffirmance they .would be of no validity and of no binding effect. It seems to us, in this case, that when the appellant proved his minority, at the time of the execution of the note and mortgage, and disaffirmed the contract, that he was then entitled to recover the money that he had paid, unless it was made to appear from the evidence that the goods sold were necessaries and suitable to his condition in life, and were sold to him at a reasonable value; provided other circumstances have not arisen that would change the obligation of the parties, one to the other; and we think the burden of showing this fact was upon the appellee.

For the reasons above given the court erred in not submitting the case to the jury, and the ease is reversed and remanded.

Reversed and remanded.


text:
    Herman A. Yenne, Appellee, v. Centralia Coal Company, Appellant.
    1. Master and servant—duty to -furnish appliances. The master is bound to exercise reasonable care and diligence in providing safe machinery -and appliances for those who are employed in his service.
    2. Instructions—when refusal of correct will not reverse. The refusal of a correct instruction will not reverse where its contents are substantially contained in other instructions given.
    3. Trial—permitting jury to separate. In the absence of prejudice appearing the action of the trial court in permitting the jury after being instructed to separate before entering upon their deliberations, will not reverse.
    Action in case for personal injuries. Appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.
    W. F. Bundy and Noleman & Smith, for appellant.
    William G. Murphey and J. J. Bundy, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

This was an action brought by the appellee against the appellant for an injury received while appellee was engaged in the hoisting of a smoke-stack. The case was tried by a jury and a verdict rendered in favor of the appellee for five hundred dollars, on which judgment was rendered and appellant brought the ease to-this court by appeal.

The declaration in the case alleges that on the eighth day of March, 1909, in the County of Marion, State of Illinois, that the defendant was operating a mine and was then and there removing or taking down a smoke-stack and that the defendant in the removal' of said smoke-stack used a gin pole, held in place by three guy wires, and that said smoke-stack was being raised by means of a pulley fastened, on the upper end of said gin pole, with a rope or wire attached thereto; that defendant and its authorized agents knew or ought to have known that in the process of raising said smoke-stack great weight, force and strain would be brought to bear upon each and every one of the said guy wires, so that unless the said guy wires were sound and of good condition and properly fastened, were liable to break; that one of the said guy wires then and there was not properly fastened and secured and was not sound and in good condition but on the other hand was rusted, rotted, weak and insecure and easily broken and loosened, all of which facts the defendant then and there knew or ought to have known but were unknown to plaintiff.

The declaration further avers that the defendant then and there carelessly and negligently commanded, ordered, directed and permitted plaintiff to work in and about said place, under the direction of defendant’s authorized agent, while the guy wires were in an unsafe and dangerous condition, and that while plaintiff under direction of the defendant and its authorized agent was so working and laboring as aforesaid, one of the said guy wires broke and separated while the plaintiff in the exercise of ordinary care was engaged in taking down the said smoke-stack, and that by reason thereof the said gin pole fell upon plaintiff and then and there injured him; and he expended a large amount of money -in and about being cured, and lost much time and wages in consequence thereof.

The first additional count alleges substantially the same facts and avers that it was the duty of the defendant to use reasonable care to provide reasonably safe tools and appliances and guy wires with which to take down said smoke-stack; but that the defendant carelessly and negligently used a defective gin pole and pulley and carelessly and negligently furnished guy wires which were too small to stand the great strain necessarily placed upon them in and about handling the said smoke-stack, and which were rusted, rotten and easily broken, all of which facts were known to the defendant and unknown to the plaintiff.

The facts set forth in the second additional count are substantially as the first except that it avers that one James Hoy, who was then superintendent of the defendant, was directing the conduct of said work in the lowering of the said smoke-stack.

The facts in the case, as appear from the evidence, are that the appellant had been engaged in the sinking of a shaft and that appellee had been at work, as a laborer, at the mine for about four months, doing such work as was necessary to be done in and about the mine, and during a portion of this time had charge of a gang of men and directed them in their work; that on the morning of March 8, 1909, the appellee, with his men, had been engaged at work in digging a ditch, tearing down the building, etc., and that it became necessary to take down the smoke-stack from off of the engine that had been used in the sinking of the mine; that Mr. Hoy, the superintendent, directed appellee to get a certain wire that was upon some reels and use that in the construction of the gin pole, and as appellee testifies, that he was told by Hoy to cut off three pieces, and these were the three pieces that were used on the gin pole; and Mr. Hoy himself says: “I told him three wires, guy wires, would hold it in the different directions.”

It further appears from the evidence that the cable used consisted of six strands, and had been used as a signal wire by the defendant in the sinking of its mine; that the mine was wet and the cable liable to rust; that the gin pole was put in place'and supported by these three guy wires and that the rope attached to the gin pole was fastened to the smoke-stack and when they attempted to raise it one of the wires parted and let the gin pole fall and injured plaintiff. It further appears from the evidence that the superintendent, Hoy, was well acquainted with the operation of these gin poles, and that the appellee had no knowledge whatever of a gin pole or its construction or operation, and that he so told Hoy, the superintendent; that when the gin pole fell it struck appellee on the knee and injured his knee badly, on account of which he lost considerable time and expended considerable money in and about endeavoring to be cured.

It appears from the evidence of some of the witnesses that Hoy was giving the orders to the men while working around the gin pole, and in lowering the smoke-stack; this, however, was disputed by Hoy.

It is claimed, by counsel for appellant, that there was no proof of the negligence charged in the declaration, and that for that reason there could be no recovery in this case. The negligence charged in the several counts of the declaration is, that the appliances or wire furnished by the defendant for the construction of the gin pole was rotten, rusted, weak, easily broken and too small to withstand the strain. It may be true that no witness testified that the wire furnished was rotten or even rusted but the testimony does show that the wire had been used down in the mine in the sinking of it, as a signal wire, and that the mine was wet, and, as we think, the natural tendency of keeping the wire in the wet mine would be to rust, and we presume the jury came to the same conclusion; and, as stated by counsel for appellee, the physical fact that when the attempt was made to raise the smoke-stack and a steady strain placed upon the wire, that it broke, would be evidence that it was at least weak, and too weak for the purpose for which it was being used.

It is the well settled law of this state that the master is bound to exercise reasonable and ordinary care and diligence in providing safe machinery and appliances for those who are employed in his services. The Monmouth Mining & Mfg. Co. v. Erling, 148 Ill. 521; Leonard v. Kinnare, 174 Ill. 532.

The jury must have concluded, under the instructions given, that the appliance furnished was not reasonably safe, and this was a fact to be determined by them, and we are not able to say that they were not warranted in so finding.

It is again said by counsel for appellant that the proof is not sufficient on the question of furnishing defective appliances to warrant a recovery, and that three propositions are necessary to be established to recover on that ground: First, that the appliance was defective; second, that the master had knowledge or ought to have had; third, that the servant did not know of the defect and had not equal means of knowledge with the master.

We have before stated, that as to whether or not the appliance was defective was a question of fact. However, counsel for appellant in his brief says: “The whole trouble is, as we contend, that the plaintiff failed to use as many strands as was necessary to hold up the gin pole.” And again he says: “The only proof that the wire was too weak is because it broke, and it is quite apparent the reason it broke is because he did not use strands enough.” In this, perhaps, counsel is correct, but whose fault is it that strands enough were not used? The evidence discloses that the appellee knew nothing about the construction or operation of a gin pole but that Mr. Hoy did, and that he was there, present at the time it was in operation. Mr. Hoy was the vice-principal of the defendant and if he permitted a gin pole to be used by the men that was not supported by a sufficient number of wires, then we think the defective appliance would be the fault of the defendant, and the jury were fully warranted in so finding.

As to the second proposition: did the master have knowledge, or ought he to have had, of the defective appliance herein used? Mr. Hoy, the superintendent, was a man of experience, was a mine manager, knew about the erection of gin poles, about the amount of weight that the wire thereon would have to support in undertaking to raise a heavy object, he knew that this wire had been in use down in a wet mine for six months, and he ought to have known the strength of the wire that he was using for this purpose, and to have known that it was reasonably safe; yet as far as the evidence discloses he did not even examine the wire before directing its use. It seems, however, that in attempting to raise the smoke-stack the first strain that came upon the wire showed that it was too weak; a litle attention given to this matter by the superintendent would in all probability have convinced him that the wire was not sufficient. He did hot give it the attention he ought to have done and we think the jury were warranted in finding that the defendant ought to have known the condition; of the appliance. He at least assumed to know that it was sufficient because he directed the particular wire and the number of wires that were to be used in the construction of this gin-pole, and the jury were warranted in drawing the conclusion that he knew or ought to have known that the wire was unsafe. It is said by our Supreme Court in the case of Goldie et al. v. Werner, 151 Ill. 561: “If the jury gave credit to this witness, then they would be forced to believe that Schwartz himself selected this defective joist for the scaffold; and therefrom they might legitimately have drawn the conclusion that, in doing so, he, as the direct representative of the common master, and standing in the position of vice-principal, knew, or ought to have known that the joist was knotty, defective and unsafe.” As Hoy who was the vice-principal of the defendant selected the wire to be used as a guy wire the jury were warranted in finding that he knew or ought to have known that it was defective.

It is again contended, that it must appear that the appellee did not know of the defect and had not equal means of knowledge with the master. The evidence in this case tends to show that the appellee had, been engaged a greater part of his life as a glass blower; that in recent years he had been engaged in different kinds of common labor until he went to work for appellant, and while there he had been engaged around the mine in unloading cars, cement, brick and such kinds of work as from time to time arose for him to perform. It appears from the evidence that he did not know anything about the construction or operation of a gin pole, and that he so told the defendant; that he had never seen one, and we do not believe that under such circumstances he would have any knowledge or would be expected to have any knowledge as to whether the wire was too weak or not. He was directed to use the particular wire that was used and when the gin pole was erected and the appellee knew that the materials for the erection of it had been selected by Mr. Hoy, he and the other servants engaged in the hoisting of the smoke-stack were not bound to examine for defects but had a right to assume that the appliance furnished was reasonably safe. Our Supreme Court says in the case of Hines Lumber Co. v. Ligas, 172 Ill. 315: “Under the rule that the servant has a right to presume that the master has discharged his duty of exercising reasonable care to see that the appliances supplied are reasonably safe for the use to which they are to be put, the servant is not bound to look for defects which are-not patent to a man of his intelligence, knowledge and experience.” We are not able to say from this record that the jury were not -warranted in finding that the appliance furnished was defective, that the defendant ought by the exercise of reasonable care to have known this fact and that the plaintiff was not cognizant of the defect and did not have the same opportunity for knowing such defect as the master.

The court did not err in refusing defendant’s instructions to direct a verdict. Again it is claimed that the court erred in refusing instructions one to six of the defendant’s refused instructions, but no particular reason is pointed out why any one of the instructions should have been given. We have read the instructions and find that in some of them the same propositions are involved that have been given in other instructions, and that the giving of such would have been a> repetí-' tion; and as to the other instructions we see no error in refusing them. i

Again, it is contended that the court erred in permitting the jury to separate at the close of the trial and after the instructions had been read to them and before they had commenced a consideration of their verdict but nothing is shown that the appellant was injured by this, and, while it is not the usual practice to permit juries to so separate after having been instructed, in the- absence of any authority upon that question, and none has been cited by counsel, we would be unwilling to hold that it was reversible error,¡ unless it is shown that appellant was in some manner prejudiced thereby. " ¡

We have carefully considered all of the evidence and instructions of the court in this case and we believe that the court did not err in overruling defendant’s motion for a new trial and rendering judgment upon the verdict given in this case, and the judgment is affirmed. ;

Judgment affirmed.


text:
    Ralph Gordon, Appellee, v. P. H. Murphy, Appellant.
    1. Master and servant—what not obligation of former. The law does not require that the master should use all of the most approved attachments to his machinery.
    2. Master and servant—what essential to recovery by latter. “The servant, in order to recover for defects in the appliances of the business, is called upon to establish three propositions: First, that the appliance was defective; second, that the master had notice thereof, or knowledge, or ought to have had, and third, that the servant did not know of the defect and had not equal means of knowing with the master.”

      Appeal from the City Court of East St. Louis; the Hon. Mobtimeb Millabd, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed.
    Opinion filed November 11, 1911.
    Wise, Keefe & Wheeler, for appellant.
    F. C. Smith, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

In this case the appellee recovered a judgment against the appellant in the City Court of Bast St. Louis, Illinois, for two thousand dollars; from which judgment the appellant prosecutes this appeal. There was an appeal from a former trial of this case to this court, and disposed of at the August Term, 1910, to which opinion we now refer for a full and complete statement of the facts and the principles of law applicable to and controlling the rights of the parties herein. See Gordon v. Murphy, 157 Ill. App. 86.

Upon the former hearing of this cause the judgment was reversed and remanded, and upon remandment an additional count was filed by appellee. At the former trial the judge of the City Court excluded the evidence as to the first and second counts of the declaration, and there being no cross errors assigned the case was heard by this court upon the evidence and the third, fourth and fifth counts of the declaration.

The evidence in the record now before this' court is, so far as we can discover, substantially the same as the evidence in the former record. Indeed, counsel for appellant says, “as we have already said, there is no'difference between the case now, as it appears from the record, and the case as it was presented to this court at a former trial, except the additional count that the machine was defective and would repeat. The case was tried upon the same declaration and the same witnesses who testified at the former trial;” and this statement is not challenged by counsel for appellee in his brief or argument.

Upon this trial in the City Court the judge did not exclude the evidence as to the first and second counts of the declaration, so we now have to consider the evidence as applicable to the first, second and additional counts of the declaration.

The first count charges, “that the defendant negligently allowed a certain machine used for pressing’ caps to be in a defective, loose, improperly adjusted and unsuitable position for the use made of it, which the defendant knew and the plaintiff did not know.”

The second count charges, that the defendant negligently provided a certain machine used for pressing corner caps; that it was operated by a belt, wheel, cogs, pulley and pedal, and which should have been provided with an appliance to lift and push corner caps from under the die without the necessity of a person using his hands. That the plaintiff was unaware of this defective condition of the said machine, and the defendant knew the same. That plaintiff inexperienced and endeavoring to operate said machine, and not being instructed in the work, and ordered to hurry up his work and make the machine go faster, while attempting to obey the order, and exercising due care for his own safety, had his right hand crushed.

As to the former of these counts, there is no evidence disclosing the defects complained of in the machine, and certainly none that the defendant knew of, or could have known by reasonable diligence. The only defect in this machine, as appears from the evidence, if any, is that set out in the additional count which will be discussed hereafter.

As to the latter of the two counts there is no evidence that this machine should have been provided with an appliance to lift and push the comer caps from under the die, or that any such attachments were made or used in connection with machines of .this description.

The law, however, does not require that the master should use all of the most approved attachments to his machinery. Allen v. Western Electric Co., 131 Ill. App. 118; Pennsylvania Co. v. Backes, 133 Ill. 255.

The further questions, made by this count, of the plaintiff’s want of knowledge of the defective condition of the machinery and his inexperience, were disposed of by the former opinion rendered by this court in this case.

We do not think that it is seriously contended by counsel for appellee that there was in fact any proof of the negligence charged in these two counts, but after the case was reversed the appellee took leave to amend his declaration and did file an additional count upon which he now claims to base his right of recovery. The additional count charges, that the plaintiff “was required, in the discharge of his duties, to operate a certain machine by means of a pedal, and to press certain galvanized caps, the upper die moving only when the foot touched the pedal, but the defendant allowed the machine to be in a defective condition, and ordered the plaintiff to operate the same in such condition; that in that condition the upper, die would descend without a person placing his foot on the pedal, which rendered the machine dangerous and unsafe to operate, which the defendant knew and the plaintiff did not know.” Before entering upon the discussion of this count, we would refer the reader to the former decision of this court in this case where it is held that the manner of operating this machine was simple, that it did not require any particular knowledge but simply a knowledge of how to operate the pedal when the hand was not between the dies; that the appellee was fully cognizant of the dangers of operating the machine and was conversant with the manner of its operation, and that he did not need any instructions, and that the appellee assumed the risk, as disclosed by the evidence, and as applied to the counts of the declaration then under consideration.

The court in reversing the case says, “There is some evidence tending to show the upper, die would descend at times without pressing the pedal but there is no count in the declaration which such evidence supports;” and we presume that the additional count was filed by reason of such statement in the opinion. There is no charge in this count of the declaration of any particular defect in the machinery, but that it was defective in its operation from some unknown cause; that it would descend without a person placing his foot on the pedal. There is some evidence tending to show that the hammer had at three different times while being operated by witness Powel droppéd without placing the foot upon the pedal and had at one time on the morning of the day of the injury dropped while the plaintiff was operating it without placing his foot upon the pedal. The evidence, howevór, upon these occasions is not very satisfactory but in the view we take of the case we think it is wholly immaterial, for there is no claim made by either Powel: or the plaintiff that they ever gave the appellant any notice of this fact or that the attention of appellant’s superintendent was ever called to it. We think the evidence shows that the machine was a new one and operated well, except as to these four times that the hammer may have dropped without touching the pedal. The superintendent and the appellee both state that ¡he was frequently about the machine and saw it operated, and the superintendent claimed that so far as he coluld see it was operating all right, and there is no pretense upon the part of the plaintiff that the machine did not operate all right when the superintendent was present, and we think that the evidence fails to disclose that the appellant knew or by the exercise of reasonable diligence could have known of the hammer dropping without touching the pedal. Upon the contrary it appears from the former opinion of this court that the appellee had practical experience and knowledge of the1 working of this and kindred machines, and that he knew and appreciated the dangers liable to ensue from the dropping of the hammer without first placing the foot upon the pedal. And even if it be conceded that the hammer had dropped as claimed, it certainly cannot be said that the appellant was aware of it but the appellee himself admits that he knew it and continued to work with the machine after having knowledge of the fact that the hammer dropped without touching the pedal with the foot.

As we view the evidence in this case we do not think that the appellee has brought himself within the rule laid down in the case of Goldie v. Werner, 151 Ill. 551, where the court says:

“The servant, in order to recover for defects in the appliances of the business is called upon to establish three propositions: First—That the appliance was defective; Second—That the master had notice thereof, or knowledge, or ought to have had; Third—That the servant did not know of the defect and had not equal means of knowing with the master.”

We think appellee has failed to prove at least two of these propositions as above stated; that he is not entitled to recover in this case, and the judgment should be reversed with a special finding of facts; and we find that the appellee had knowledge of and appreciated the dangers of operating the machine in question; that the defective operation, if such there was, was known to the appellee and that it was not known to the appellant, and could not have been ascertained by reasonable diligence; and the judgment is reversed.

Judgment reversed.