text:
    Henry Still et al., Executors, Appellees, v. Edward Still, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter', Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed July 28, 1914.
    Statement of the Case.
    Action by Henry, James and Charles Still, executors of the estate of Ann Still, deceased, against Edward Still in forcible detainer to recover the possession of certain lands occupied by the defendant under a lease from the deceased. The suit was originally brought before a justice of the peace, from whose judgment an appeal was taken to the Circuit Court where plaintiffs had judgment. To reverse the judgment, defendant appeals.
    The facts show that Thomas Still owned the premises in his lifetime and that on his death devised the same to his wife, Ann Still; that the defendant at the time of the death of Thomas Still was occupying the premises and had occupied them for twenty-five years prior thereto under some arrangement, and that after the probate of the will continued to occupy them; that Ann Still.brought a forcible detainer suit against him for possession and rent and recovered a judgment; that afterwards the defendant desiring to keep the farm agreed upon a settlement of the judgment and his mother, Ann Still, executed a lease to him for a year, which failed to properly describe the land; that defendant paid one-half the rent and refused to surrender possession at the end of the year, whereupon this suit was brought.
    Defendant urges as ground for reversal: First, that the lease was procured by threats and intimidation; second, that the description in the lease does not describe the land occupied by defendant; and third, that Ann Still never had possession or the right of possession to the premises in controversy.
    John J. Brehholt, for appellant.
    C. H. Burtoh, for appellees.
   Mr. Justice Harris

delivered the opinion of the court.

Abstract of the Decision.

1. Landlord and tenant, § 42*—when lease not avoided by threats or intimidation. To avoid a lease on the ground it was procured by threats or intimidations, the threats or intimidation must be present and operative at the time of signing the instrument and such as to destroy the complaining party’s free agency and make his act not his own but the act of another.

2. Forcible entry and detainer, § 24*—when misdescription in lease no defense. A misdescription of the premises in a lease is properly explained as a mistake and will not defeat recovery in an action of forcible detainer, where the tenant says the premises he occupied were the same as involved in the suit.

3. Landlord and tenant, § 132*—when tenant estopped to deny landlord’s title or right to possession. A tenant who has taken a lease and paid rent to the lessor as landlord is estopped from either questioning his title or right to possession so long as he remains his tenant.


source: Caselaw Access Project

author: Mr. Justice Harris

license: Public Domain

text:
    The Carson-Payson Company, Appellee, v. Lida Moore et al., Appellants.
    1. Mechanics’ liens, § 68

      —computation of time for giving subcontractor’s notice for lien. Where a company under a contract with the original contractor delivers materials to a common carrier to be shipped to the contractor, its contract with the contractor is completed on the date of the delivery to the carrier, and in order to entitle it to a mechanic’s lien it must give notice to the owner within sixty days from such date.
    2. Appeal and error, § 628*—when propositions of law unnecessary to preserve question of law for review. The rule that where the facts are not in dispute and only a question of law is to be determined, such question cannot be reviewed unless propositions of law have been presented to the trial judge, does not apply to a chancery case.
    Appeal from the Circuit Court of Wabash county; the Hon. William H. Green, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded with directions.
    Opinion filed July 28, 1914.

      E. B. Green and Theo. Gr. Risley, for appellants.
    Howard P. French, for appellee.

       See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

The appellee, a corporation of Danville, Illinois, filed its bill in chancery against appellant and others to enforce a mechanic’s lien against certain real estate described in the bill. The bill describes appellee as a sub-contractor, under a contract with the original contractors, Struby & Harris, to furnish radiators and a boiler put upon the premises of appellants, and avers notice to appellants.

To the bill appellants filed their answer, denying the furnishing of material due and denying that a sufficient notice was served to subject the premises to the lien sought or to make them liable as the owners of the premises. Replication filed by appellee, the taking of testimony before the master in chancery, report of evidence.

Upon the hearing before the court the issues were found with appellee, and the sum of $401.76 to be due, and if not paid within thirty days the master in chancery is directed to sell the premises of Benjamin F. Moore, one of appellants, to satisfy the amount due and costs. Benjamin F. Moore excepts and brings this appeal.

The facts, so far as they are material to a decision of this case, appear to be that Struby & Harris on the twenty-eighth day of July, 1910, entered into a contract with Benjamin F. Moore, appellant, to furnish all material and construct a heating plant on the premises in said bill described for the sum of $514; that on the fifth day of August, 1910, appellee entered into a contract with Struby & Harris to furnish of said material one steam boiler and thirty Kewanee steam radiators to be used in pursuance of said original contract in said building; that on the fifth day of August, 1910, at Kewanee, Illinois, and on the ninth day of August, 1910, at Geneva, New York, waybills were issued showing a delivery of all of said articles to a common carrier billed to Struby & Harris, Mt. Carmel, Illinois; that on the tenth day of October, 1910, notice was served by appellee upon appellants claiming and asserting a lien upon the premises described in the bill under the mechanic’s lien law of this State, the law referred to being that of Mechanics’ Liens Act, ch. 82, sec. 24, (J. & A., }[ 7162), which Teads, as follows: ‘1 Sub-contractors * * * may at any time after making their contracts * * * and shall, within sixty days after completion thereof * * * cause a written notice of the claims # * * to be personally served on the owner.”

The facts in this case are not in dispute, as the case was heard upon the evidence of complainant. The statute is derogatory to the common law, mandatory and must be strictly complied with or no lien exists. The statute was evidently passed for protection of the owner and all parties entitled to a lien so that the one could not be deprived of his money, and that the owner would not be compelled to pay twice. The statute wisely provided that the time in which the party who anticipated claiming a lien should act.

The delivery by appellee or their agents at Kewanee, Illinois, and Geneva, New York, upon the fifth and ninth days of August, 1910, respectively, under the contract between appellee and Struby & Harris to the common carriers billed to Struby & Harris, Mt. Carmel, Illinois, was a delivery to Struby & Harris, and completed the contract upon the part of appellee. City of Cartilage v. Duval, 202 Ill. 237.

The contract of appellee being complete on the ninth day. of August, 1910.; a notice to entitle appellee to a lien must be served within sixty days from that date. The notice served on the tenth day of October, 1910, did not come within the time fixed by law, and was insufficient.

The evidence in this case, considered for all purposes as it applies to the issues, leaves no question of fact to be determined.

It is urged by appellee that where the facts are not in dispute and only a question of law is to be determined, that if appellant failed to present to the trial judge propositions of law and secure a ruling thereon it bars its right to have it considered on appeal. This is true where the right to a jury' trial exists but not to a chancery case, where the parties have no such rights. People ex rel. James v. Chicago, B. & Q. R. Co., 231 Ill. 112.

There being no right to a lien established by the evidence, the decree will be reversed and the cause remanded with directions that the order entering a decree be vacated and set aside, and a decree entered dismissing the bill for want of equity.

Reversed and remanded with directions.


text:
    Nora Shinners, Administratrix, Plaintiff in Error, v. Royal Coal and Mining Company, Defendant in Error.
    1. Statutes, § 143

      —methods of repeal. A prior statute may be repealed by express declaration of the Legislature, by amendment, by a general revision and by implication.
    2. Statutes, § 148*—when provisions of former statute not repealed by revision. Where the law on a particular subject is revised and rewritten, only the provisions of the old law that are omitted from the revised act are repealed, and all provisions of the old law retained in the new act are regarded as having been continuously in force.
    3. Mines and minerals, § 41*—claims arising under Act of 1899 as affected by Act of 1911. All undetermined claims arising under the old Miner’s Act of 1899 before the Miner’s Act of 1911, J. & A. 1Í1T 7475 et seq., went into effect, held saved under the provisions of chapter 131, sec. 2, Hurd’s R. S., J. & A. V 11,103.
    4. Mines and minerals, § 41

      —effect of Act of 1911 as repealing former act. The Miner’s Act of 1911, J. & A. 7475 et seq., was a revision of the former Act of 1899 and did not operate to repeal the provisions of section 18 of the old Act, since the provisions of such section are substantially repealed in section 21 of the new Act, J. & A. IT 7495.
    5. Mines and minerals, § 86*—right to maintain action for violation of provisions of former statute. Where a miner was injured in a mine while the Miner’s Act of 1899 was in force and died after the Miner’s Act of 1911 (J. & A. jf 7475) became effective, held his administrator could maintain an action for the benefit of the widow and children based on the wilful violations of the provisions of section 18 of the old Act.
    Error to the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded with directions.
    Opinion filed July 28, 1914.
    F. J. Tecklenberg and D. J. Sullivan, for plaintiff in error.
    M. U. Hayden and Barthel, Farmer & Klingel, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number,

   Mr. Justice Harris

delivered the opinion of the court.

This is a suit brought under the Miner’s Act to recover damages resulting from the death of plaintiff in error’s intestate, who was a miner, and was injured while at work in the mine of defendant in error on the twenty-seventh day of June, 1911. He died on the fourteenth day of November, 1911. The declaration filed consisted of four statutory counts. Bach count of the declaration is predicated upon the provisions of the Miner’s Act of 1899 and section 29 of the Miner’s Act of 1911 (J. & A. ft 7503). The first count being predicated upon section 18d of the Act of 1899, alleges a dangerous condition and that defendant’s mine examiner willfully failed to make an examination and willfully failed to mark the dangerous place. The second is predicated upon section 18c, that the mine examiner willfully failed to make his daily record on the morning of the twenty-seventh day of June, 1911. The third is predicated on section 18b, that the mine manager willfully failed to prevent plaintiff in error’s intestate from entering the mine and crosscut on the twenty-seventh day of June, 1911, before the dangerous conditions were made safe or removed, and that he was not there under direction of the mine manager for the purpose of making said dangerous conditions safe. The fourth count is predicated upon section 16d, and charges the willful failure of the mine manager to see that the dangerous place was properly marked or that a danger signal was properly displayed.

Each count of the declaration charged that a large piece of slate or other substance fell from the roof above the place, where plaintiff in error’s intestate was working, upon him whereby his back was broken and he received other injuries from which he died November 14, 1911.

Each count of the declaration avers that plaintiff in error’s intestate left surviving him as his next of kin and only heirs at law, his widow, Nora Shinners and Marcella Shinners and Florence Shinners, his only children, and that the next of kin have sustained loss and damage by reason of the death of Edward Shinners in the sum of ten thousand dollars, and therefore she brings suit.

To this declaration defendant in error files a general and special demurrer which was by the court sustained, and plaintiff in error electing to stand by the declaration judgment was entered accordingly against plaintiff in error for costs, exceptions taken, and orders entered for appeal. The argument by plaintiff in error. upon the presentation of the case in this court proceeds upon the theory that the declaration states a cause of action when challenged by general demurrer; and no reasons are assigned or argued for sustaining special demurrer by defendant in error.

The defendant in error says the judgment of the trial court should be sustained for the following reasons: First. That the Miner’s Act of 1899 was repealed on the first day of July, 1911, by the Miner’s Act of 1911. (J. & A. fifí 7475 et seq.)

Second. That the cause of action did not accrue in the plaintiff in error until the death of plaintiff in error’s intestate November 14,1911.

Third. That because of the happening of reasons 1 and 2 in this case and the wrongful act, neglect or default charged as occurring on the twenty-seventh day of June, 1911, and death following on November 14,1911, leaves plaintiff in error without a good cause of action under either the Statute of 1899 or the Statute of 1911.

The first question to be answered is, was the Act of 1899 repealed by the Act of 1911, as the word repealed is commonly understood, that is, obliterated, done away with, without anything substituted for and in place of it, not literally or substantially like it. If upon investigation this be true, all causes of action that had not accrued to the. party bringing suit and ripened into vested rights would abate, and the authorities cited by defendant in error upon this proposition should prevail. Therefore the question of repeal or revision as to the law applicable to this declaration is the all important question. There are different methods of repealing a prior statute:

By express declaration of Legislature and nothing substituted for the act repealed.

By amendment, if the Legislature enacts an amendatory statute providing that a certain act or a certain section of an act shall be amended so as to read as the same is repeated in the amendatory act, all such portions of the old act or section as are not repeated in the new act are repealed without express words for that purpose, but such portions of the old law as are retained, either literally or substantially, are regarded as a continuation of the old law and not as a new enactment. Merlo v. Johnston City & B. M. Coal & Mining Co., 258 Ill. 328; Moore v. Mausert, 49 N. Y. 332; Hurd’s St. 1911, ch. 131, sec. 2, (J. & A. 11,103.)

Statutes may be repealed by a general revision. Where the law on a particular subject is revised and rewritten, only the provisions of the old law that are omitted from the revised act are repealed, and all provisions of the old law retained in the new act are regarded as haying been continuously in force. Merlo v. Johnston City & B. M. Coal & Mining Co., 258 Ill. 328; Mette v. Feltgen, 148 Ill. 357.

The rule in respect to repeals by revision is the same as repeals by amendment. There is nothing startling nor is there chaos between the death of the old and the coming of the new law. Both events take place at one and the same time, the power that destroys the old gives life and vitality to the new.

Bepeals by implication take place when a later act is so repugnant to a former one that both cannot stand together. The inconsistency established, the latter act in date or position has full force and displaces whatever in the precedent law is repugnant to it. Merlo v. Johnston City & B. M. Coal & Mining Co., 258 Ill. 328; Pavey v. Utter, 132 Ill. 489. A legislative declaration that an act is or is not repealed is only a declaration of the Legislature upon a judicial question, which is not binding on the courts. United States v. Claflin, 97 U. S. 546.

. Under the above rule of construction as laid down by our Supreme Court, a number of times the Miner’s Act of 1911, consisting of thirty-one sections, was a revision of the law applicable to coal mines and designed as a substitute for the Act of 1899. Substantially all the subjects found in the old act appear in the new, recast and rewritten. While differing in detail, both acts relate to the same general subject and are intended to accomplish the same general purpose.

It is not necessary to a decision of the question before us to point out all the differences between the old and the new acts. The legal question to be determined upon this record is whether the Act of 1911 so far repealed the former statute as to deprive plaintiff in error of all rights under a prior law. The first, second and third counts of the declaration predicated upon section 18 of the old law are substantially repeated in section 21 of the Eevisionary Act (J. & A., ft 7495); whatever conclusion might be reached in regard to other provisions of the old law, so far as the case at bar is concerned, the new act does not affect its legal status.

Under the second and third reasons assigned by defendant in error, an injury resulting from the wrongful act, neglect or default of another gives the injured party, if he survives, a right of action, and if he dies this right of action survives to his personal representative under the statute. Crane v. Chicago & W. I. R. Co., 233 Ill. 259.

Our attention is called to the difference between the Laws of 1899 and 1911 as to who may recover in case of death. This appears under section 33 of the Act of 1899 and section 29 of the Act of 1911. (J. & A. 7503.) These two sections relate to the subject of penalties for the violation of the respective acts. Under section 33 it was provided that in case of loss of life by reason of a wilful violation of the statute a right of action should accrue to the widow of the person so killed, his lineal heirs or adopted children, or any other person or persons who before such loss of life were dependent for support on the person so killed, for recovery of damages for injury sustained not to exceed ten thousand dollars. The corresponding provision of section 29 of the new act gives a right of action,.to the personal representative of the person killed, for the exclusive benefit of the widow and next of kin of such person, and to any other person or persons who before such loss of life were dependent for support on the person or persons so killed, for a like recovery for the injuries sustained not exceeding ten thousand dollars, to which is added a provision for distribution, the same as the law distributes personal property left by persons dying intestate.

It will be noted there are two differences in these two sections: First, as to the name of party in whose name suit is to be brought, á mere matter of procedure, and does not affect the substantial rights of the parties. Encyc. of PL & Pr. Sec. 15, p. 483.

Second, a recovery under the old law was for the exclusive benefit of widow, lineal heirs, adopted children and dependents, while under the new law it is for the benefit of widow, next of kin and dependent persons. In the case at bar deceased left a widow and two children who, under the law of distribution of personal property, would take it all as his widow and heirs at law, being the same under either statute to the entire amount of recovery.

It would hardly be necessary to add that we express no opinion in regard to the rights of beneficiaries under the new statute where they are not the same under the old law. We have no doubt under our saving statute (chapter 131, sec. 2, Hurd’s E. S., J. & A. ^ 11,103) all undetermined claims arising under the old mining law whether suit had been commenced or not prior to July 1,1911, are saved, and that the provisions of the old statutes, so far as they concern the cause of action, are to be regarded as continuing until such cause is disposed of. Therefore the demurrer in this case should have been overruled, and the judgment will be reversed and cause remanded with directions to set aside judgment and order sustaining demurrer and an order entered overruling demurrer.

Reversed and remanded with directions.


text:
    George D. Emery, Appellant, v. E. W. Hersh, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    Attorney and client, § 135

      —when finding as to terms of contrast of employment against weight of the evidence. In an action by an attorney for services rendered defendant in examining titles to land, giving advice regarding the titles and preparing forms for an issue of bonds, etc., where defendant claimed that he employed plaintiff after the bonds were issued to furnish a written opinion and that the agreement was that plaintiff should be paid out of a fund allowed by the owners of the land in case of a sale of the bonds, held that a finding of the trial court in favor of defendant was against the manifest weight of the evidence, there being no evidence that plaintiff had agreed to accept employment in the way claimed by defendant or any evidence to show that plaintiff knew of the arrangement or acquiesced in it.

      Appeal from the Circuit Court of Jasper county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded.
    Opinion filed July 28, 1914.
    Statement of the Case.
    Action by George D. Emery against E. W. Hersh in assumpsit to recover for services rendered by plaintiff for defendant in examining titles to certain real estate, advising as to said titles and in preparing forms for the issue of bonds- and representing defendant in a transaction then pending for the issue and sale of bonds as his attorney. From a judgment entered on a finding by the trial court in favor of defendant, plaintiff appeals.
    H. M. Kasserman and Duane Gaines, for appellant.
    Fithian & Kasserman, for appellee.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.


text:
    Joseph Salerno, Appellee, v. Missouri and Illinois Coal Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of St. Clair county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed July 28, 1914.
    Statement of the Case.
    Action by Joseph Salerno against Missouri and Illinois Coal Company to recover for personal injuries sustained by plaintiff while working in defendant’s mine. The declaration consisted of four counts, three statutory counts and one common-law count. The three statutory counts alleged that the mine examiner failed to furnish props when demanded, failed to inspect the roof of the mine and to make a record of the dangerous condition of the roof of the mine, and that he failed to mark the roof as dangerous. The common-law count alleged the same condition of the roof of the mine and that the mine manager after a demand for props inspected the roof, informed plaintiff that the roof was safe and directed plaintiff to proceed with his work. A plea of the general issue was filed. From a judgment entered on a verdict in favor of plaintiff for one thousand two hundred and fifty dollars, defendant appeals.
    Abstract of the Decision.
    1. Mines and minerals, § 173

      —when evidence sufficient to warrant recovery under declaration. In an action by a miner for personal injuries sustained by the fall of the roof of a mine, evidence held sufficient to sustain a recovery under the statutory counts in the declaration charging the mine examiner with failure to furnish props and to inspect and mark the dangerous condition of the roof.
    Í- ' 2. Negligence, § 48*—proximate cause. The proximate cause is not necessarily the beginning cause but the efficient cause, such a cause in the absence of proof which the court would say as a ^matter of law the injury would not have occurred.
    3. Mines and minerals, § 84*—what constitutes a wilful violation of the statute. A wilful violation of the Miner’s Act is nothing more than a conscious violation thereof, and such is to be determined from all the facts and circumstances in evidence.
    4. Mines and minerals, § 194*—when requested instruction properly refused. An instruction telling the jury "that if you believe from the evidence that the plaintiff knew the roof in his working place was loose and liable to fall and injure him, and that knowing this continued to work under such dangerous roof and was injured in consequence thereof, then you should find defendant not guilty as to the fourth count,” held properly refused as ignoring the alleged examination of the mine manager and his assurances of safety, and also as ignoring the principal of law that although plaintiff may have known there was some danger, yet if the danger was not such that an ordinary prudent person would refuse to work, then he might continue.
    5. Appeal and error, § 1560*—when refusal of requested instruction not error. The refusal of' a requested instruction applicable to only one count in the declaration is immaterial where the evidence is sufficient to support the verdict and judgment under other counts.
    Barthel, Farmer & Klingel, for appellant.
    Webb & Webb, for appellee.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

       See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

6. Appeal and eeroe, § 1561 —when refusal of requested instruction harmless. The refusal of a requested instruction is not reversible error where it was practically covered by other instructions given.


text:
    John Huback, Appellee, v. Wabash Railroad Company and Illinois Terminal Railroad Company, Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. Geobge A. Cbow, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed July 28, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by John Huback against the Wabash Railroad Company and Illinois Terminal Railroad Company, to recover for personal injuries received by plaintiff while in the employ of defendants as a brakeman. The facts showed that plaintiff was a brakeman on a train operated jointly by the defendants; that on a certain trip on the road defendants required the train to run backward with the coaches in front of the engine and that at such times it was the duty of plaintiff to ride on the foremost platform of the first coach and to sound an air whistle as a warning when the train approached a street crossing and to apply the air brakes when required; that on the occasion of the injury in question plaintiff was thus on the platform of the first coach of the train and when the train approached a street crossing plaintiff noticed a team and wagon being driven upon said crossing and attempted to stop the train by applying the air brake, but the brake failed to work properly and the train struck the team and wagon with great force causing plaintiff to be thrown to the ground and injured.
    Abstract of the Decision.
    1. Master and servant, § 687

      —when recovery by brakeman for injuries resulting from defective air brake sustained by the evidence. In an action by a brakeman to recover for personal injuries received by him in a collision between defendants’ train and a team and wagon at a street crossing alleged to have been caused by defendants’ negligence in permitting the air brake to remain out of repair so that plaintiff could not operate it to avert the collision, held under the evidence whether or- not the brakes were defective and whether such defect was the cause of the injury were questions for the jury and that verdict for plaintiff was sustained by the evidence.
    2. Master and servant, § 572*—burden of proof. In an action by a brakeman to recover for injuries resulting from a defective air brake, the burden is on the plaintiff to prove by a preponderance of the evidence the existence of some defect in the construction or operation of the air brake, and that the plaintiff did not know of such defect and did not have equal opportunities with defendants of knowing of it.

      The negligence averred is that defendant failed to provide a sufficient air brake and in allowing it to remain in defective condition, in that the piston in each of the brakes upon the coaches had too much travel, namely, ten inches of travel, when the piston should have not to exceed six inches of travel in order that the brakes could be set by meáns of a lever with sufficient quickness to stop the train in such emergencies.
    A plea of the general issue was filed. The jury returned a verdict in favor of plaintiff for seventy-five hundred dollars. To reverse a judgment entered on the verdict, defendants appeal.
    Warnock, Williamson & Burroughs, for appellants.
    Geers & Geers, for appellee.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number. ,

      See Illinois Notes Digest, Yols XI to XV, and Cumulative Quarterly, same topic and section number,

       See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

3. Negligence, § 125 —necessity of alleging and proving due care of plaintiff. In an action for personal injuries the plaintiff must allege and prove that he was free from contributory negligence.

4. Master and servant, § 452*—when servant chargeable with knowledge of defective appliance. To charge a servant with negligence he must not only know or have the means of knowing by the exercise of ordinary care of the defect, but must also know that the defect renders the appliance unsafe to use, and he is not bound to make an inspection for latent defects.

5. Master and servant, § 685*—proof of servant’s want of knowledge of defects in appliances. .Where a servant’s want of knowledge of defects in appliances is not susceptible of direct proof it may be inferred from circumstances and the servant may be aided by the presumption that a person does not voluntarily incur danger or the risk of death.

6. Master and servant, § 457*—duty of servant to discover defects. A servant is under no primary liability to investigate for latent defects to test the fitness and safety of the place, fixtures or appliances provided him by the master; he may assume that they are fit and safe, though the circumstances may be such that a servant is chargeable with knowledge of such defects as are patent and obvious and of such defects as in the exercise of ordinary care he ought to have knowledge of, and he is not deemed to have notice or knowledge of such defects and insufficiencies as can be ascertained only by investigation and. inspection for the purpose of ascertaining that there is no danger.

7. Master and servant, § 120*—duty of master to keep appliances in safe condition. While there is no absolute duty upon the master to keep appliances in safe condition there is a duty to use reasonable care to keep them fit,- and this duty may require inspection at reasonable intervals and the employment of such tests as will reveal the condition of the machinery or appliances.

8. Master and servant, § 161*—duty to inspct appliances. The master’s duty of inspection rests upon the employer and not upon the employee and depends upon the character of the machinery or appliances, since ordinary care may require an inspectiion oftener in one case than in another.

9. Master and servant, § 302*—risks assumed by servant. While an employee assumes such risk of his employment as is usually incident thereto and of the extraordinary hazards of which he has notice, or which in the usual exercise of his faculties he ought to have notice, he does not take the risk or dangers known to the master which can he avoided by him in the exercise of reasonable care; he assumes the risk more or less hazardous of the service of which he is engaged, but he has a right to presume that all proper attention shall be given to his safety and that he shall not be carelessly and needlessly exposed to risks not necessarily resulting from his occupation, and preventable by ordinary care and precaution on the part of his employer.

10. Masteb and seevant, § 685 —proof of notice to master of defective condition of appliances. Notice to the employer of a defective condition of appliances may not be capable of direct proof and is not required; such notice may be proven by facts and circumstances which the master has notice of or an opportunity to have knowledge of which is not open to the servant.

11. New tetad, § 125*—when denial of motion for not an atuse of discretion. Overruling of a motion for new trial on the ground of newly-discovered evidence, held not an abuse of discretion where there was no showing of proper diligence and the evidence would have been cumulative.


text:
    Samuel R. Montgomery et al., Appellees, v. O. Hickok et al., Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Crawford county; the Hon. Enoch E. Newun, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed July 28, 1914.
    Statement of the Case.
    Action by Samuel R. Montgomery, Alice Montgomery and Herman Montgomery against 0. Hickolc, W. C. Turner, Fred Zeigler, D. E. Jones, J. W. "White and W. E. Stathers to recover from the defendants the sum of one thousand dollars alleged to be due from defendants to plaintiffs upon an oil and gas lease executed by plaintiffs to Fred Zeigler on a forty acre tract of land.
    The declaration alleged that defendants by various assignments and conveyances became the owners of said lease as a copartnership under the name of the Bess Oil Company and that said company pursuant to the terms of the lease drilled a well on said lands which said well when completed was a paying oil well within the meaning of the terms of the lease, which provided that the lessee should pay to the lessor the sum of two thousand dollars in case the first should be a paying well. The declaration further alleged that by reason thereof defendants became indebted to plaintiffs in the sum two thousand dollars and that they had paid the sum of one thousand dollars on the debt.
    The defendants J. W. White, W. C. Turner and W. E. Stathers each for himself filed a plea of the general issue, a verified plea denying joint liability, and a plea of the statute of frauds. By agreement a jury was waived and the cause tried by the court. The suit at the conclusion of the evidence was dismissed as to Fred Zeigler. The court found the issues in favor of plaintiffs against 0. Hickok, W. C. Turner, D. E. Jones, J. W. White and W. E. Stathers for one thousand dollars, and upon the finding entered judgment against W. C. Turner, J. W. White and W. E. Stathers, the defendants of whom the court had jurisdiction, and on plaintiff’s motion ordered scire facias to issue against the defendants 0. Hickok and D. E. Jones to show cause why they should not be made parties to the judgment. To reverse the judgment Turner, White and Stathers appeal.
    By the terms of the lease all covenants and agreements between the parties were extended to their heirs, executors, administrators, successors and assigns.
    McCarty & Arnold, for appellants.
    Parker & Eagleton, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

Abstract of the Decision.

1. Landlord and tenant, § 415*—when covenant in lease binding on assignees. Where a covenant between lessor and lessee relates to a thing not in esse but which is yet to be done upon the land tending to enhance its value or to render its enjoyment more beneficial to the owner or occupant, the assignees if named are also bound.

2. Covenants, § 19*—when covenant in oil and gas lease runs with the land. A covenant in an oil and gas lease providing for the payment of a certain sum to the lessor in case the first oil well is a paying well, held to be a covenant running with the land and binding upon the assignees of the lessee where they proceeded under the lease, drilled the well and made a part payment to the lessor according to the terms of the lease.

3. Landlord and tenant, § 67*—what constitutes “paying well” within meaning of oil and gas lease. Under a covenant in an oil and gas lease to pay a certain sum in case a well drilled by the lessee is a paying well, held that the cost of equipment and drilling of the well was not to be taken into consideration in determining whether it was a paying well.

4. Partnership, § 30 —when persons liable as partners. Assignees taking an assignment of an oil and gas lease from the lessee and drilling an oil well pursuant to the terms of the lease under the name of an oil company, held, liable to the lessor on the covenants in the lease as partners regardless of any arrangement between them as a partnership.


text:
    Mary E. Bell, Administratrix, Appellee, v. East St. Louis & Suburban Railway Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded.
    Opinion filed July 28, 1914.

      Abstract of the Decision.
    Steeet bailboads, § 131

      —when recovery for death of driver of wagon in collision with car not sustained by the evidence. In an action against a suburban railway company to recover for the death of plaintiff’s intestate caused by one of defendant’s cars colliding with a team and wagon which the deceased was driving in a street occupied by the tracks of the defendant, held that a verdict for plaintiff could not be sustained, there being uncontradicted evidence showing that deceased was driving in the same direction the car was going and that he attempted "to cross the track within one hundred feet of the approaching car, and it also appearing that the team and front wheel of the wagon was struck instead of the rear of the wagon, and that the car was stopped within eight to fifteen feet after the accident.
    Statement of the Case.
    Action by Mary E. Bell, administratrix of the estate of John Bell, deceased, against East St. Louis & Suburban Railway Company to recover damages for the death of plaintiff’s intestate resulting from one of defendant’s cars colliding with a team and wagon which the deceased was driving on a street occupied by defendant’s tracks in Collinsville, Illinois.
    From a judgment entered on a verdict in favor of plaintiff for fifty-two hundred and fifty dollars defendant appeals.
    Williamson, Burroughs & Ryder, for appellant.
    Charles H. Burton and Trautmann, Flannigen, Baxter & Hamlin, for appellee.

      See Illinois Notes Digest, Vola. XI to XY, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.


text:
    Heller & Livingston, Appellant, v. American Car & Foundry Company, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Assignments, § 19

      —necessity of proof of notice of assignment of wages. In an action on an assignment of wages, where the defense was that defendant had not received notice of the assignment and that the wages had been paid to the employee, held that a direction of a verdict for defendant was proper where there was no competent evidence to show notice to the defendant of the assignment.

      Appeal from the Circuit Court of Madison county; the Hon. George. A. Crow, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed July 28, 1914.
    Statement of the Case.
    Action by Heller & Livingston against the American Car & Foundry Company to recover on an assignment of wages executed to the plaintiff by one Floyd Aiken of his wages earned while in the employ of defendant. The suit was originally commenced before a justice of the peace and an appeal was taken to the Circuit Court, where upon a trial by a jury the court at close of the evidence offered by plaintiff directed a verdict for defendant and rendered judgment on the verdict. To reverse the judgment, plaintiff appeals.
    The only ground relied on by appellant for a reversal is that the judgment was based on a finding that no sufficient notice of the assignment had been lawfully served on the defendant.
    Trautman, Flannigen, Baxter & Hamlin, for appellant; H. B. Eaton, of counsel.
    William E. Wheeler, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

       See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

2. Notice, § 51 —when foundation for reception in evidence of copy of mailed notice insufficient. In an action to recover on an assignment of wages, a copy of a notice of the assignment claimed to have been served on the defendant by mail held properly excluded, for the reason there was no proper foundation laid for its introduction, where there was no evidence offered to show that the copy of the notice was inclosed in an envelope directed to defendant with a proper amount of postage thereon and deposited in a place for the receiving of United States mail.

3. Notice, § 51*—when registry receipt for letter insufficient to prove mailed notice. A post office registry receipt for a letter in which it is claimed a notice to the sendee was inclosed, does not of itself prove what was received.


text:
    M. Weinstein, Appellant, v. Pete Garcinski, Appellee.
    (Not to foe reported in full.)
    Appeal from the City Court of Bast St. Lopis; the Hon. Robebt H. Flannigan, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed July 28, 1914.
    Statement of the Case.
    Action by M. Weinstein against Pete Garcinski, to recover the sum of $100 claimed to be due from defendant to plaintiff. The claim arose out of a transaction regarding checks received by plaintiff from defendant. It appeared that defendant brought a number of checks which he had cashed for other parties to plaintiff’s place of business and told the plaintiff that he needed more funds to cash checks and that the plaintiff took the checks, which he claims amounted to $452.45, and defendant claims amounted to $552.37; that plaintiff gave to defendant at that time $300 in cash; that later the wife of defendant called for the balance and plaintiff informed her that he had not obtained the cash on the checks and at her request gave her $245.12 in checks and $7.33 in cash. Plaintiff claims the understanding was that she was to return and pay him in cash the sum of $100, but this is denied by defendant.
    Abstract of the Decision.
    1. Evidence, § 390

      —when question ashed of party not objectionable as calling for conclusion. In. an action to recover a certain sum claimed to be due to plaintiff from defendant, where the defendant was permitted to be asked the question, “Do you owe plaintiff anything now?” and defendant answered, “I don’t owe one penny,” held that the question was' not objectionable as calling for a conclusion of the witness on the issue, since it is proper for defendant as a party to the suit to deny the claim of plaintiff in as broad terms as the plaintiff made his claim.
    2. Appeal and error, § 1523*—when error in instruction will not reverse. The giving of an instruction which is improper for the reason it calls upon the jury to determine what are the material issues in the case, held not reversible error where the issues were simple and it appeared that substantial justice had been done.
    3. Appeal and error, § 1401*—when verdict will not be disturbed. The Appellate Court will not set aside a verdict on the ground that the jury have reached a wrong conclusion as to the facts or a different conclusion than that entertained by the court, unless the record shows that the verdict is against the clear preponderance of the evidence.

      The suit was originally commenced before a justice of the peace and plaintiff had judgment. An appeal was taken to the City Court of East St. Louis where upon a trial before a jury a verdict was returned in favor of defendant and judgment was entered on the verdict and against the plaintiff for costs. To reverse the judgment, plaintiff appeals.
    Alexander Flannigen and Jesse M. Freels, for appellant.
    J. E. Grace, for appellee.

       See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.


text:
    James C. Kennedy, Administrator, Appellee, v. Chicago and Carterville Coal Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Williamson county; the Hon. William N. Butleb, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed with finding of fact.
    Opinion filed July 28, 1914.
    Statement of the Case.
    Action by James C. Kennedy, administrator of the estate of John S. Kennedy, deceased, against the Chicago and Carterville Coal Company to recover damages for the death of plaintiff’s intestate alleged to have resulted from the fall of slate and rock from the roof of the defendant’s mine while deceased was assisting other servants in taking down a certain low portion of the roof. The jury returned a verdict in favor of plaintiff for three thousand dollars. To reverse the "judgment entered on the verdict, defendant appeals.
    This case has been tried twice and submitted to two juries upon the same declaration, the jury on each trial returning a verdict in favor of plaintiff for three thousand dollars.
    This is the second appeal to the Appellate Court by the appellant. The opinion on the former appeal appears in 180 Ill. App. 42, and the statement of facts as appears in that opinion, and also the opinion is adopted by the Appellate Court on this appeal, the evidence contained in the record of both appeals being the same so far as the issues are concerned. As to the points decided in the opinion rendered on the former appeal, see that opinion.
    Abstract of the Decision.
    1. Mines and minees# § 122

      —when miner assumes risTc of dangerous condition of roof of mine. In an action against a mining company to recover for the death of plaintiffs intestate alleged to have been caused by the fall of slate and rock from defendant’s mine while he was obeying a negligent order of defendant’s foreman to assist in taking down a portion of the roof, held that a verdict for plaintiff was not sustained by the evidence, it appearing that the deceased was an experienced miner competent to perform any kind of dangerous work, that the condition of the roof was as well known to him as the defendant and that the order given was a general order and not a specific order to do the work in any particular manner.
    2. Appeal and ebbob, § 1810*—when judgment may he reversed. The Appellate Court will reverse a judgment based on a verdict of a jury, where it appears that the judgment is clearly against the manifest weight of the evidence, that the facts in the case will never appear different and that another trial would serve no good purpose.
    Denison & Spiller, for appellant; Mastin & Sherlock, of counsel.
    Neely, Gallimore, Cook & Potter, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.


author: Mb. Justice Harbis

text:
    Lucy Bateman, Administratrix, Appellee, v. Carterville & Big Muddy Coal Company, Appellant.
    1. Workmen’s Compensation Act, § 2

      —evidence competent to prove employees rejection of act. A certified copy of the notice filed hy the employer of his election not to come under the provisions of the Workmen’s Compensation Act of 1911, J. & A. ffff 5449 et seq., is admissible as the best evidence to prove that the employer had rejected the provisions of the act. The original notice without proof of its being filed in accordance with the provisions of the act would be insufficient.
    2. Workmen’s Compensation Act, § 2*—time election remains in force. Where an employer exercises his election not to come under the provisions of the Workmen’s Compensation Act of 1911, J. & A. HIT 5449 et seq., by filing notice as provided by the act, his election remains in force until the notice is withdrawn.
    3. Death, § 80*—when giving of erroneous instruction on measure of damages reversible error. In an action for wrongful death, the giving of an instruction directing the jury to allow plaintiff such damages as they may find from the greater weight of all the evidence that the widow and next of kin have suffered, not exceeding the sum claimed in the declaration, held reversible error, for the reason that the instruction did not limit the recovery to the pecuniary loss sustained and also because it directed attention to the amount claimed in the declaration.
    4. Mines and minerals, § 148*—when admission of evidence relating to negligence not charged in declaration reversible error. In an action to recover for the death of an employee in a mine alleged to have resulted from a willful violation of section 16 of the Mining Act, J. & A. jf 7490, in allowing mine cars to be provided with swinging hook couplings, permitting a witness to testify as to whether there were any lights on the motor, and whether there was anything between the cars to prevent them from getting loose if they became disconnected or uncoupled, held reversible error where there were no averments in the declaration charging negligence with reference to the lights or connections other than the coupling.
    5. Instructions, § 110*—when erroneous as inapplicable to the pleadings. An instruction referring to “plaintiff’s case” rather than to the averments of the declaration is erroneous as inapplicable to the pleadings.

      6. Masteb and servant, § 800

      —when instruction erroneous. In an action for the death of an employee, an instruction given for plaintiff held erroneous as allowing the jury to speculate what was a safe and an unsafe place to work.
    Appeal from the Circuit Court of Williamson county; the Hon. A. E. Somebs, Judge, presiding. Heard in this court at the March term, 1914.
    Beversed and remanded.
    Opinion filed July 28, 1914.
    Denison & Spiller, for appellant; Mastin & Sherlock, of counsel.
    Neely, Gallimore, Cook & Potter, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mb. Justice Harbis

delivered the opinion of the court.

This action in case was brought by appellee against appellant to recover damages for the death of appellee’s intestate, which occurred March 3, 1913. There was filed in the case a declaration consisting of thirteen counts. However, at the close of appellee’s evidence, appellee withdrew the fourth count and the court instructed the jury to find the appellant not guilty under the second, third, sixth, seventh, ninth, tenth and eleventh counts. Therefore we will consider only the first, fifth, eighth, twelfth and thirteenth counts as amended. The first count charges common-law negligence; that the deceased was employed in the main north entry as a trackman; that appellant furnished him an unsafe place to work, in this, it required him to work at a certain point in the entry while its agents were driving loaded cars of coal up a steep incline, while the cars were insufficiently attached to each other and to the motor by open and defective links and hooks of iron, so that they were reasonably certain when slackened to become detached from each other and from said motor and run back down said incline ; that appellant knew, or by the exercise of reasonable care could have known, of the open and defective links and couplings of the cars; that deceased did not know of the open and defective couplings nor have equal means with appellant of knowing thereof; that while deceased was in the exercise of due care for his own safety, the cars became detached by reason of the open and defective links and couplings of the cars; that deceased did not know of the open and defective couplings nor have equal means with appellant of knowing thereof; that while deceased was in the exercise of due care for his own safety, the cars became detached by reason of the open and defective links, hooks and couplings and ran back down the incline; that appellant had made an election and filed the same with the Secretary of the State Bureau of Labor Statistics not to provide and pay compensation to its employees arising out of and in the course of employment, and had not withdrawn said election on the date deceased was killed.

The fifth count as amended is practically the same as the first amended count, except that it does not aver due care on the part of deceased and does not negative knowledge on the part of deceased of defective couplings. The eighth count is practically the same as the first amended count. The twelfth amended count is practically the same as the first amended count. The thirteenth or statutory count as amended averred, in addition to the formal averment, that appellant wilfully violated the provisions of section 16 of the Mining Act (J. & A. 7490) in that it wilfully allowed the mine cars to be provided with swinging open hook couplings while the same were then and there provided with more than one link on the end thereof for coupling purposes; that while deceased was at work in' said entry a number of cars became detached because of there being more than one link on the end of said cars and the cars being provided with swinging open hook couplings, and ran to and against deceased, killing him; that appellant made an election in writing and filed the same with Secretary of the State Bureau of Labor Statistics not to provide and pay compensation to its employees arising out of and in the course of their employment and had not withdrawn said election on the date deceased was killed.

All of said counts averred that Thomas L. Bateman was killed on the third day of March, 1913, and left surviving appellee and three children as his heirs at law and averred damages in the sum of $10,000. Letters of administration were issued to appellee.

To the declaration as amended appellants filed a plea of not guilty, and upon trial of the issues so joined by a jury a verdict was returned finding appellant guilty and assessing damages at the sum of $5,000. Motion for new trial was overruled, judgment rendered on the verdict and this appeal taken.

The undisputed facts in this case are: That appellant on the third day of March, 1913, was operating a coal mine in Williamson county and that Thomas L. Bateman, a man thirty-five years of age, was employed by appellant as trackman, earning in that capacity the sum of $2.80 per day, and on that day was working on the track in the main north entry at a point about half a mile from the bottom of the shaft. The track in this entry was on a grade averaging about one per cent, but in some places the grade was steeper and in other places it was less than that. If cars were turned loose at a point some two or three hundred feet from the bottom where the incline began, they would run north and gain in speed until they reached the parting where the coal cars loaded with coal were assembled by the drivers from the various workings. The plan of operation was this: The pit cars were loaded in the various rooms by the miners, gathered up by drivers with mules and pulled out to the partings, where they were assembled and coupled together by a person employed for that purpose and known as the coupler. There they were taken by the motor and hauled in long trains to the bottom of the shaft where they were loaded on cages and hoisted to the surface. The motor was passing up and down the main north entry continuously during working hours, hauling train loads of cars to the bottom from the parting and trains of empties from the bottom to the parting. Mr. Bateman had been regularly employed as trackman on the track where the motor ran. It was his duty to keep the track in proper repair and condition. When a trip of cars would start from the parting it was under the control of two employees, the motorman, who handled the motor, and the trip rider, who rode on the motor and put sand on the track when needed and attended to the switching. In returning to the parting from the bottom with a load of empties, the trip rider would ride on the back end of the cars.

At the time of the accident the motor and a trip of twelve or thirteen loaded pit cars were going, from the parting to the bottom; the motorman noticed Mr. Bate-man standing beside the track as he passed him, and the trip went on until it reached the top of the incline; the motor and four cars had gotten to the top and was on level ground when the fifth car from the front end became uncoupled from the the fourth car, and the rear eight cars stopped and started to run back down the incline. The motorman discovered that the cars had become uncoupled by his engine speeding up and he at once stopped, jumped off the motor and ran back to the cars and tried to hold them with his hands, but they already had some momentum and he could not hold them and had to let them go; he returned to the motor and went on to the bottom about two or three hundred feet with the four cars, and informed the bottom man that the trip had come in two; the bottom man went to the telephone and telephoned back down to the parting that the trip of cars was coming back down the track. The boss driver was on the parting and received the telephone message; he at once informed the assistant manager, who was there, and he gave the warning to the other men at the parting and all got in the clear. Soon after-wards seven of the runaway cars reached the parting where they ran into other cars standing on the track and stopped. The motorman coupled onto another load of empties at the bottom and started to the parting at once; on reaching a certain part of the entry he found that the fifth car from the motor had become detached from the other seven that ran away and had jumped the track and stopped. From all the circumstances it appears that Mr. Bateman saw or heard the runaway trip coming down the entry and he got out of the way and allowed the first seven cars to pass, and they went on to the parting. As soon as they passed him, he evidently stepped on to the track behind them thinking they had all passed, and was struck by the other car that had become loose from the seven and was run over and killed; his body was found lying across the track within about eight feet of the car; he had been run over by the car causing it to leave the rails and run into the rib of the entry and stop; his head was crushed and his limbs were broken and he was dead when found.

The disputed facts, in so far as material to a proper consideration of this case, will be taken up and discussed in their proper order.

A reversal of this case being necessary under the law, the questions of law and facts will be divided into three parts or branches:

(1) Those questions that should be passed upon to assist in another trial of the case.

" (2) Those questions which in the opinion of the court constitute reversible error.

(3) Those questions while error would not, standing alone, be held to be reversible error and upon another hearing would not be likely to appear in the record.

The first and second of these divisions or branches will be discussed and disposed of accordingly. We regard it unnecessary to extend this opinion by either passing upon or referring to the errors coining under the third branch or division.

Appellant says that it was error for the court to deny its motion for peremptory instruction. This alleged error is predicated upon the assumption by appellant that it was operating its mine at the time of the accident under the Act approved June 10,1911, in force May 1,1912, known as the “Workmen’s Compensation Act.” (J. & A. 5449 el seq.)

If this assumption, from an examination of the law and facts, proves to be true, the peremptory instruction should have been given, as the facts so far as material are not in dispute.

The only notice that is claimed by appellee to have been given by appellant that it would not provide compensation and come under said Act is of date March 29, 1912, and filed with the Secretary of the Bureau of Labor Statistics of the State of Illinois, April 4, 1912.

It is argued by appellant that this notice of rejecting the provisions of this Act was for the remainder of the year 1912 only, find unless a further notice was given sixty days previous to the first day of January, 1913, appellant automatically on January 1, 1913, went under its provisions by operation of law.

It is further argued that the copy of the notice introduced in evidence was incompetent. If appellant went under provisions of the act automatically or if there was no competent evidence showing appellant had rejected the act, peremptory instruction should have been given and would bring to an end further discussion of the errors assigned.

The question whether or not appellant was after January 1,1913, and on the day of the accident under the provisions of the Compensation Act of 1911, is a matter of construction to be put upon the act.

The Statute reads as follows:

“Section 1. Any employer covered by the provisions of this act may elect to provide and pay compensation for injuries, * * * and thereby relieve himself from any liability for the recovery of damages except as herein provided. If, however, any such employer shall elect not to provide and pay compensation * * * he shall not escape liability because. * * *

(A) Every such employer is presumed to have elected to provide and pay compensation according to the provisions of this act, unless and until notice in writing of his election to the contrary is filed with the State Bureau of Labor Statistics.

(B) Every employer within the provisions of this act failing to file such notice shall be bound hereby as to all his employees who shall elect to come within the provisions of this Act until January 1st of the next succeeding year and for terms of each year thereafter.” (J. & A. 5449.)

It has become a part of this law, by decision of the Supreme Court, that at the outset and until notice was filed to the contrary, employer and employees within the act, by silence, accept it and automatically, by operation of law, come under its provisions and are bound by it until such times and in such manner as the law provides they could give notice to the contrary. This does not mean that it is necessary to "accept it at the beginning of each year, but, once accepted, that acceptance is good until the proper notice is given not to be bound by it.

Having elected to come under its provisions as long as such election remains in force, the act is effective as to parties making election, and in case both employer and employee elect to come under its provisions the act itself becomes a part of the contract of employment. Deibeikis v. Link-Belt Co., 261 Ill. 454. The statute does not provide how or when by an election made by employer rejecting the act he may again come under it. To hold that the notice he gives is good as a rejection for only a limited time is not authorized by the statute, and to so hold would be by reading into the statute something that does not appear, viz., this notice of rejection is to be binding until another or further notice is given January 1st, following.

This construction, unless made necessary by the statute, would not be in accord with the acts that bind a party making a statement or giving a notice. Where a notice or statement affects the contractual relations of parties made by one of the parties, he is held by such statement until it is withdrawn or otherwise disposed of. In this case the notice given stood as a negative election to be acted upon by all interested parties until withdrawn. The fact that the same Statute of 1913 makes this provision does not give to the Statute of 1911, a different meaning, but it would appear that the Legislature was intending to give it a construction that could not be misunderstood.

There is no provision in the act which confers upon the employee the right to elect to be governed by the act in his relations to an employer who had rejected it.

The notice that the employer had rejected the provisions, on file at the place provided by law, good until withdrawn, as fixing the status of the parties, is the most reasonable and logical construction, and the court did not commit error in holding that appellant was not operating its coal mine in question at the time of the accident under the provisions of the Compensation Act of 1911, it being the intention of the Legislature that there could be but two elections, one to come under the act, and the other to reject it, the first exercised by silence and the other by a negative election. The second or negative election can only be made in the manner and at the time provided by the act for the protection of the rights of thsoe under the act, but when such negative election is exercised it is for such a period of time as the parties so electing may desire; and until such an election is withdrawn, as an inducement to employers to operate under the act, those within its provisions who rejected it forfeited the right to the defenses enumerated therein, and these defenses are lost without regard to the status of the employee. Dietz v. Big Muddy Coal & Iron Co., 263 Ill. 480, 5 N. C. C. A. 419.

The provisions of the act with reference to the sixty days’ notice is for the benefit of those having rights which have accrued to them under the act, or which might accrue before, under the law, they could change their status under the act. The rights of all interested parties, where the employer is operating under a notice rejecting the act, are at all times fixed by the act and under the law, and it is immaterial in point of time when it withdraws its negative election.

Upon the question of directing a verdict as well as admitting improper evidence, the admissibility of the certified copy, filed with the Bureau of Labor Statistics April 4, 1912, offered in evidence by appellee and admitted by the court is to be disposed of. Under section 1 of the act, (A) “Every such employer is presumed to have elected to provide and pay compensation according to the provisions of this act, unless and until notice in writing of his election to the contrary is filed with State Bureau of Labor Statistics.’.’

Therefore, appellee, to have a right to maintain this suit, must prove that appellant had rejected the act, and to do this must first show appellant had filed such a notice with the Bureau named in the act. The original notice without proof of the filing in accordance with the act would not be sufficient. The objection to the notice, that the notice applied to 1912 and not to 1913, we dispose of with the reasons given for holding that at the time of the accident appellant was operating under the negative election made and not withdrawn.

The objection that the copy is not the best evidence is without merit because we may assume that the Legislature, by providing that the original was to be filed in one of the departments of State created by it, intended to make it a public document subject to the protection and respect such documents are to receive. That would preclude any argument that it is a document of interest only to employer and employee and ready to be produced by either in court at will or upon notice.

The rule is if this became a public document by law, whether judicial or nonjudicial, one which.the public has the right to inspect, and one which could not, without inconvenience to the public interests, be removed from its place of custody may be proved by copies exemplified or otherwise duly authenticated. Burr Jones Law of Evidence, vol. 2, sec. 534. This being the law, this copy was not secondary evidence but the best evidence and needed no foundation to support it. Under the common law, without statutory provision, was this notice properly authenticated and entitled to admission in evidence?

This act makes the filing of a notice with the Bureau of Labor Statistics prima facie evidence of its execution and by analogy would give like effect to a certified copy thereof, certified to by the person charged with the custody of the original. The notice in this case and its filing with the proper department of State the appellant does not by pleading deny the execution of the notice or filing of same thereby waiving proof either of execution or filing of same.

The notice and the certificate offered in evidence were the best evidence and admissible under the pleadings. Under the contention of appellant as to the admission of improper evidence, appellee, over the objection of appellant on redirect examination, asked witness Lloyd Murphy whether or not on this trip of cars there were any lights except what were on the motor. Answer. “There were no lights except those on the motor.” Again, with witness Sweet, appellee inquired what was between the cars on this trip to keep the cars from getting loose if they became disconnected or uncoupled. Answer. ‘ There wasn’t anything.”

The averments of the declaration is the notice to defendant of the charges he has to meet. He is not presumed to meet other or different charges, of statutory violations especially. Appellee concedes this evidence incompetent, but insists it is not reversible error. Our Supreme Court has said: “A plaintiff must recover, if at all,” upon the specific acts of negligence alleged in his declaration, “and in the application of this rule to actions for negligence plaintiff cannot allege a specific act of negligence and recover upon proof of negligence of a different character.” Chicago & E. I. R. Co. v. Driscoll, 176 Ill. 336.

This was not evidence adduced by a witness attempting to explain, but a deliberate attempt to bring forth before the jury evidence of other and further negligence upon which the jury might base a finding. It does not belong to that class of cases cited by appellee which hold although error not reversible error. The appellant complains and assigns as error the giving of appellee’s fourth, fifth and sixth instructions.

The fourth instruction is on the measure of damages and the only instruction of the series on that subject, and directs the jury to allow appellee such damages as the jury may find from the greater weight of all the evidence that said widow and next of kin have suffered, not exceeding sum claimed by plaintiff in her declaration.

This instruction is in violation of the statute which limits the recovery to the pecuniary loss of the widow and heirs at law, and is the only evidence to he considered on that subject. It is further subject to the objection of keeping before the jury the amount claimed in the declaration, $10,000, which is not evidence. Appellee concedes this instruction is not in line with authorities, but says it is not reversible error. It will not be necessary to extend this opinion upon this error, but we will adopt what has been said by the Supreme Court in the case of Illinois Cent. R. Co. v. Johnson, 221 Ill. 47 and in the case of Pate v. Gus Blair Big Muddy Coal Co., 158 Ill. App. 578, and although in a recent case the Supreme Court held this instruction was not reversible error, it was because it was accompanied by other instructions upon the same subject which correctly stated the law.

The fifth and sixth instructions did not correctly state the law applicable to the pleadings and should not have been given, the fifth referring to plaintiff’s case. The plaintiff’s case should be confined to the averments of the declaration, and where the declaration sets out in what particular the instrumentalities were unsafe, the jury should not be allowed to speculate what was a safe and what was an unsafe place to work, as was done in the sixth given. On the fifth, see City of Chicago v. Fields, 139 Ill. App. 250. On the sixth, see Nordhaus v. Vandalia R. Co., 242 Ill. 166.

The objection as to remarks of counsel is well taken, and while of itself might not reverse this case they materially assist. It is a matter of common knowledge that before the average jury the individual against a corporation is not required to make any sentimental appeal to secure a verdict upon the facts, if he has any facts, and why their representatives will persist in this kind of practice is beyond explanation to the average and distinterested mind. The corporation is entitled to no more but to as much consideration in court as any other party to a law suit. The rules of court and ethics of the profession require courteous treatment of parties and witnesses.

The remarks made by counsel for appellee in the argument of the case are in line with those frequently condemned by our courts, and if counsel wish to protect and sustain verdicts it is with them to prevent errors and complaints of this kind. Pate v. Gus Blair Big Muddy Coal Co., 158 Ill. App. 578; Parlin & Orendorff Co. v. Scott, 137 Ill. App. 454; Wabash R. Co. v. Billings, 212 Ill. 37.

Therefore, on account of the errors above referred to and sustained, judgment will be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Harris Mb. Justice MoBbide

text:
    Demalain Justice, Appellant, v. John S. Stonecipher et al., Appellees.
    1. Bills and notes, § 251

      —when person taking note after maturity not chargeable with notice of eguities of third person. A person taking past due paper is chargeable with notice of all equities existing between the original parties to the paper, the makers and payee, but he is not charged with notice of the equities of third persons.
    2. Bills and notes, § 147*—sections 52 and 59 of Negotiable Instrument Act construed,. Sections 52 and 59 of the Negotiable Instrument Act., J. & A. Hi 7691, 7698, do not take from nor add to the law as to what constitutes a valid and binding transfer of negotiable paper between indorser and indorsee so far as the rights of innocent purchasers are concerned.
    3. Bills and notes, § 247*—when person taking notes through unauthorized transfer takes free from claim of owner. Where an owner of notes indorsed them in blank and deposited them with a banker for safe-keeping and the banker without authority negotiated them to a third party as collateral security for his own indebtedness, held on bill for an accounting filed by the owner against the banker and such third party that though the evidence showed the relation of a trusteeship between the owner and the banker such third party took good title to the paper in the absence of evidence showing that he took with knowledge of the banker’s claim of ownership.
    McBride, J., took no part in the consideration and decision of this case.
    Appeal from the Circuit Court of Marion county; the Hon. James C. McBbide, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed July 28, 1914.

      Certiorari allowed by Supreme Court.
    Bundy & Wham and Holt & Wilson, for appellant.
    Kagy & Vandervort, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

The appellant filed in the Circiut Court his hill for accounting against appellee and other respondents. The allegations of the bill, in substance, were: That appellant on the thirteenth day of May, 1912, left with John S. Stonecipher, who was then doing and carrying, on a banking business under the name and style of Citizens’ Bank of Salem, Illinois, for safe-keeping and return on demand, nine promissory notes amounting to a total of $2,686, some of which were secured by real estate mortgages and some of which were not, all of which were past due, together with a school order for $52.50, one certificate of ten shares of stock in the State Bank of Iuka, Illinois, and also several deeds of conveyance to real estate and certain insurance policies, all standing in the name of Demalian Justice and belonging to him; that a demand in writing was made by appellant prior to the commencement of suit upon John S. Stonecipher and the said Citizens’ Bank of Salem, Illinois, and that they failed and refused to return to appellant any of the above mentioned papers and securities; that the said John S. Stonecipher, acting either for himself or on account of said Citizens’ Bank, without authority from appellant and in fraud of his rights, negotiated to the Bridgeport State Bank or to the defendant T. M. Mooney, the Joseph Stanford note and real estate mortgage $500, the Ed. Beck note unsecured $300, the W. A. Lowry note and real estate mortgage $150, the Gr. M. Abney note and real estate mortgage $250, the Francis D. Carter note and real estate mortgage $800, the Albert Jourdan note and bond for a deed in connection therewith $400, all as collateral security for certain indebtedness owing by said Stoneciphher to the Bridgeport State Bank and T. M. Mooney; that the same were all past due and that the said Bridgeport State Bank and T. M. Mooney took and received the said notes and mortgages and each of them subject to all the rights and equities of appellant.

The bill further alleges that said Stonecipher, without authority of appellant and in fraud of his rights, assigned ten shares of Iuka Bank Stock, and that the said Stonecipher collected certain notes and the interest thereon for which he failed to account, which is not involved in this appeal. The bill further alleges that said Stonecipher and the said Citizens’ Bank and each of them held the said property in trust for appellant, and should account and turn over to appellant all of said property in their respective hands. The bill alleges that the Bridgeport State Bank was threatening to collect the principal and interest of said notes in their hands and apply the same on the indebtedness of Stonecipher. The prayer was for an accounting with all of said defendants, and to enjoin them from disposing of all the property now in their possession and from collecting either principal or interest; that process was duly served on all parties defendant in said bill; that separate answers were filed to said bill by John S. Stonecipher, The Farmers’ and Merchants’ National Bank of' Nashville, Illinois, T. M. Mooney of Bridgeport, Hlinois, The Citizens’ Bank and William A. Mills, trustee in bankruptcy of the estate of John S. Stonecipher, the last named some time after the commencement of this proceeding having entered his appearance and filed answer; that the said defendants and makers of the notes and obligations hereinbefore mentioned, Joseph Stanford, Sarah Stanford, W. A. Lowry, Sallie Lowry, G-. M. Abney, Francis D. Carter, Albert Jourdan, State Bank of Iuka, Illinois, and Ed. Beck, were defaulted.

The rights of the several parties, except as between appellant and the Bridgeport State Bank of Bridgeport, Illinois, having been by the decree of the trial court settled, determined and not appealed from will not be in this opinion further discussed or referred to except as it becomes necessary to dispose of the question of right between appellant and the Bridgeport State Bank of Bridgeport, Illinois, appellee.

The Bridgeport State Bank answered the bill of appellant, averring that the notes, mortgages and securities held by it were formerly the property of Demalian Justice, appellant, were indorsed by Demalian Justice and transferred to Stonecipher for a valuable consideration, and that the same became its property in the regular course of its business by purchase for a valuable consideration made in good faith without any knowledge of any claim of Demalian Justice in and to the same. Upon the issue so joined, appellant and appellee offered evidence upon the hearing before the chancellor, and the chancellor found for appellee and entered decree accordingly.

The facts, as they appear from the record that are in dispute, more particularly concern a transaction between appellant and one of the defendants John S. Stonecipher. Appellant on the thirteenth day of May, 1912, went to the place of business of John S. Stone-cipher, who had been his personal friend and attorney for years, and left with him his valuable papers. The notes mentioned in the record he indorsed in blank and turned over and delivered all the papers to Stone-cipher, on that day, Stonecipher at the time delivering to appellant the following receipt:

“$5439.30. Salem, III., May 13, 1912.
Eeceived of Demalian Justice, Five Thousand Four Hundred Thirty-nine 30/100 Dollars. Deeds to all my real estate including insurance policies on same.
For Collection, Safe-keeping, etc.
No.- John S. Stonecipher. ”

From the evidence the word “Collection” was erased. Considerable space and time is devoted in the argument as to what was said between appellant and Stonecipher at the time of signing this receipt, and the day previous as to the object and purpose of this transaction, all of which tends to show that both of the parties were persons of considerable business experience and competent to take care of their interest in a business transaction, and which evidence was competent to etsablish the relation of trusteeship between appellant and Stonecipher, and might be competent in this proceeding against appellee if it was followed by evidence that on June 6, 1912, at the time Stonecipher pledged these notes to appellee as collateral for a loan to him of $3,000, appellee had knowledge, of the claim of appellant as to ownership of these notes, but no such contention appears from the argument nor from the record, and so the only part of the transaction between appellant and Stonecipher affecting the rights of appellee, as between appellee and appellant, is what was the effect of a blank indorsement by appellant, payee in these several notes, and delivery of them to Stonecipher, by him.

The argument of appellant as to consideration of this evidence and the citation of authorities is based upon his statement and quotation of the Statute (Section 59, Chap. 98, Negotiable Instrument Act, J. & A. 7698), as follows: “Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course.” And further quotation from section 52 of the same Act (J. & A. 7691) as to who is a holder in due course. The two sections of the statute quoted do not take away from nor add to the law as to what constitutes a valid and binding transfer of negotiable paper between indorser and indorsee, so far as the rights of innocent purchasers are concerned. The name of a payee upon the back of a negotiable instrument will transfer the legal title to the same. Kistner v. Peters, 223 Ill. 607; Keenan v. Blue, 240 Ill. 188. If appellant transferred by indorsement the legal title to these notes and by delivery of the possession of the same to Stonecipher, where in the evidence is there anything showing that the title of Stonecipher was defective? Even the receipt makes no reference to these notes or the indorsement. The fact that three of the notes on the dates of indorsement by Justice to Stonecipher were past due does not affect the validity of the indorsement nor make the title to the paper defective. A person taking past due paper is chargeable with notice of all equities existing between the original parties to the paper, makers and payee, but he is not charged with the equities of third persons. Y. M. C. A. Gym. Co. v. Rockford Nat. Bank, 179 Ill. 599; Schultz v. Saroelowitz, 191 Ill. 249. There being no evidence showing a defective title to this paper on the sixth day of June, 1912, no burden rested upon the holder, the Bridgeport State Bank, to prove that it or Stonecipher acquired the title in due course. Without a defective title and the burden imposed as a consequence thereof, the contention of appellant becomes a matter between appellant and Stonecipher of a misuse of the paper or the proceeds thereof without the restriction as to its use written into the indorsement and no notice brought to the knowledge of the appellee and independent of the rights and equities of the parties to the original undertaking.

The Bridgeport State Bank having a good title to this paper, without knowledge of what the transaction between appellant and Stonecipher was, it becomes immaterial in the determination of the issue here involved. The makers of these notes are making no defense, and as to what defenses they might interpose is likewise immaterial. The rights between appellant and Stonecipher have been by this decree determined: That appellant voluntarily put the power in the hands of his trusted friend, for some reason, by the indorsement and delivery of these notes to dispose of as he saw fit and proper; that he cannot now be heard to say that his own friend and trustee perpetrated a fraud upon him, appellant, which from the evidence was known only to appellant and the person he selected. The party to suffer by such a transaction is the party who puts the wheels in motion and makes such an end possible.

We are of the opinion this decree is right in law and equity. That the Bridgeport State Bank did not take the notes and securities subject to any rights or equities of appellant, but took them in the regular course of business in good faith and for a valuable consideration which has not been satisfied. The judgment and decree will therefore be affirmed.

Affirmed.

Mb. Justice MoBbide

took no part in the consideration and decision of this case.


text:
    Clay Frechett, Administrator, Appellee, v. Illinois Central Railroad Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Pulaski county; the Hon. William N. Butleb, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded.
    Opinion filed July 28, 1914.
    Statement of the Case.
    Action by Clay Frechett, administrator of the estate of Lewis W. Johnston, deceased, against the Illinois Central Railroad Company to recover for wrongfully causing the death of deceased.
    The declaration consisted of five counts which are distinguished as follows:
    The first count simply charges negligence in the handling of the train run at excessive rate of speed in the nighttime, without bell or whistle being sounded and without a headlight.
    The second count, and the count under which defendant was found guilty, charges that the railroad of defendant crossed a certain traveled way in said village used by the public as a crossing for pedestrians at a point a short distance north of the passenger station at Ullin and had been so used for fifteen years, and as deceased was traveling as heretofore mentioned, defendant, by its servants, as heretofore mentioned drove a certain train towards the traveled way and while deceased was rightfully traveling upon said traveled way defendant willfully, wantonly and negligently drove and managed said train in that the locomotive was without a headlight, although dark, and was run at a reckless and dangerous speed in Ullin, to wit, forty-five miles per hour, and no bell or whistle sounded, and that by and through the carelessness, wantonness and willful negligence Johnston was killed.
    The third count charges the traveled way. was used by the public by and with consent, acquiescence and invitation of defendant, in other respects similar to the first count.
    The fourth count charges a public highway to be at the place where Johnston was killed and negligent operation as in the first count.
    The fifth count also charges a public highway and failure to give statutory signals.
    Defendant to this declaration filed the plea of not guilty, and upon trial of the issues so joined by a jury a verdict was returned finding defendant guilty as charged in the second count of the declaration and fixing plaintiff’s damages at the sum of eight thousand dollars. A motion for new trial was overruled. Prom a judgment entered on the verdict, defendant appeals.
    The facts show that at the place where the deceased was struck by the train the defendant had constructed a cinder walk leading up to its tracks nearly opposite its depot, that the walk had been used by pedestrians and that the deceased on the morning of the accident, before daylight, left his residence to go to his place of business and proceeded along this walk until he came to defendant’s tracks and when he attempted to cross the tracks was struck by a through train. There was a controverted question of fact as to the time of the accident and as to what train struck deceased.
    L. M. Bradley, W. W. Barb and Charles E. Feirich, for appellant; Blewett Lee and W. S. Horton, of counsel.
    Wall & Martin and James Lingle, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

Abstract of the Decision.

1. Pleading, § 466 —when defective count in declaration sufficient after verdict. A count in a declaration which states a good cause of action in a defective way is good after verdict.

2. Railroads, § 583*—when evidence of wanton or toilful negligence sufficient to go to fury. In an action against a railroad company to recover for the death of a pedestrian alleged to have been struck by one of defendant’s through trains while the deceased was attempting to cross defendant’s tracks near its depot, evidence held sufficient to go to the jury on the question whether the defendant was guilty of wanton and willful negligence, it appearing that at the place where deceased attempted to cross the tracks the defendant had constructed a cinder path leading up to its tracks, and that the engine was running at a high and dangerous rate of speed, without a headlight or a hell being rung.

3. Railroads, § 577*—admissibility of evidence. In an action against a railroad company for wrongfully causing the death of plaintiff’s intestate alleged to have resulted through the negligent operation of defendant’s train so as to strike the deceased when he was attempting to cross defendant’s tracks at a point near defendant’s depot,, evidence as to the locality, streets and cross-streets, location of depot and acts of the defendant in the building of a cinder walk, tending to prove that the travel of such way was by the defendant’s invitation, held properly admitted.

4. Railroads, § 593*—when instruction as to wilful and wanton negligence erroneous. In an action against a railroad company to recover for the death of a pedestrian alleged to have been caused by being struck by one of defendant’s trains while deceased was attempting to cross defendant’s railroad tracks, an instruction directing the jury to find for plaintiff if they believed from the evidence that the defendant carelessly and negligently operated its train in the manner and form as charged in the declaration and that such negligence amounted to wanton and wilful negligence, held erroneous as not confining the jury to a count in the declaration in which wanton and wilful negligence was charged and also objectionable as not stating the facts that constitute wanton and wilful negligence.

5. Death, § 73*—when instruction on question of damages objectionable. In an action for death resulting from wrongful act, an instruction stating that the plaintiff is not required “to furnish, in the proofs, any definite or specific basis for the computation of, said damages, hut that such question is for the jury to determine as practical men according to the evidence and all the facts and circumstances proven in the case,” held objectionable as not limiting the pecuniary injuries resulting to the widow and next of kin, and the giving of the instruction held reversible error.