author: Mr. Justice McBride

text:
    Henry C. Wahlmann, Administrator, Plaintiff in Error, v. C. Becker Milling Company, Defendant in Error.
    1. Master and servant, § 98

      —persons entitled to protection of statute requiring machinery to he guarded. An employee who is the head miller in a mill and in charge of the machinery, held not
    .deprived of the protection of section 89, ch. 48, Hurd’s R. S„ J. & A. If 5386, requiring machinery to be guarded, for the reason he is a superintendent of the mill, where his care and management of the machinery was subject to the decision of the operators of the mill and besides looking after the machinery it was a part of his duties to work in the mill as a miller.
    2. Master and servant, § 98*—persons charged with statutory duty of guarding maehinery. Section 93, ch. 48, Hurd’s R. S., J. & A. 1 5390, was intended to require the owner, lessee or person in charge of a mill to reme-’ ".' ' ^ts by placing guards where needed, and it was not intended'0'" t-.e burden should be cast upon an employee, though a mr* ,UC. k> look after the improvements in the machinery, where iü<5 aa‘,IJr and operator of the plant was present and in charge e eration of the mill.
    3. Master and servan5"' statute requiring machiné'" on an employer who fail guarding of machinery r contributory negligence a'- ' ' -penalty imposed for violation of ' e guarded. The penalty imposed xply with the statute relating to .i away from him the defenses of led risk.
    4. Master and servan. proper. In an action to i; mill alleged to have beer place guards about a belt ch. 48, Hurd’s R. S., J. & defendant on the ground tithe mill as would deprive J 1 error where there was evic business it was to not only lo work which required him to ; )*—when direction of verdict im- .’or the death of an employee in a d by failure of the employer to pulley as required by section 89, )386, a direction of a verdict for used was such a superintendent of f the benefits of the statute, held that he was an employee whose Tier the machinery but to perform near the belt and pulley.

      Error to the Circuit Court of Randolph county; the Hon. Geobgb A. Grow, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded.
    Opinion filed July 28, 1914.
    A. D. Riess and A. E. Crisler, for plaintiff in error.
    A. C. Bollinger, J. M. Lashley and H. Clay Horner, for defendant in error.

      See IUinois Notes Digest, Vols. topic and section number. . to XV, and Cnmulatlye Quarterly, same

   Mr. Justice McBride

delivered the opinion of the court.

At the close of the trial in the court below the presiding judge directed a verdict for the defendant, and the plaintiff prosecutes this writ of error seeking a reversal of the order made by the lower court. A description of the machinery is not very fully set forth in the evidence as abstracted, but enough appears to show that there were two rolls, one known as the ‘ ‘ Nor-dyke roll” and the other “Allis roll.” Attached to these rolls were pulleys, one larger than the other, over which pulley belts passed and the whole machinery was operated by steam power. The belts upon these pulleys at times slipped, and upon such occasions it became necessary to apply upon the belt a dope to prevent it from slipping, which was done by spreading this dope on the belt near the pulleys and while the machine was in operation. These pulleys were not guarded and when the deceased, Victor Hahn, was attempting to apply some of this dope to the belt so as to prevent it from slipping, he in some manner was caught between the belt and the pulley and killed. The evidence tends to show that these pulleys should have been guarded by crossbars so as to at least create a less liability of being injured. No one saw the deceased at the time he was caught by the pulleys, and the exact manner in which it was done is not explained, but the evidence tends to show that he was a prudent, careful man about his work. It further appears that he was the head miller and had charge of the milling machinery, hut the stock of the defendant in error was owned entirely by Conrad and Herman Becker. Conrad was president and Herman, his son, was secretary and treasurer. The business of the defendant in error was transacted by Conrad and Herman Becker, who were present while the mill was in operation and looking after its business. It is said by some of the witnesses that Conrad Becker was manager of the mill and that Hahn was head miller and that: “We took orders from him in regard to the running or repairing of the machinery and Mr. Hahn took his orders from Mr. Becker. He worked for Mr. Becker but I don’t know anything about his taking orders from Mr. Becker as to how the machinery should be managed.”

The declaration, omitting the formal parts, alleges that the said machines were so located as to expose any employee of the defendant passing or working with the said machines and the said belts and pulleys to the danger of being caught and dragged in and injured by said belts and pulleys, and which said belts and pulleys could practically have been inclosed, fenced or otherwise guarded against such danger, and that it became the duty of the defendant under the statute to properly inclose, fence or otherwise guard the said shafts, pulleys and belts of said machines to protect its employees working with or about said machines from danger of being caught and injured thereby; that the defendant in utter disregard of its duty in this behalf wilfully, carelessly and negligently failed to inclose, fence or otherwise guard such shafting, pulleys or belts in any manner whatever, and that while the said Victor Hahn was in the discharge of his duty as miller was caught by his right arm by one of the said belts and pulleys and injured, from which injury he shortly thereafter died.

It is claimed that the court erred in directing a verdict for the defendant: First, because there was evidence tending to show that the deceased was an employee of defendant and as such was entitled to the benefit of the statute requiring appellant to guard its machinery and protect its employees; and secondly, that there was evidence tending to show that it was practical to have guarded the machinery in question.

It is contended by counsel for defendant that as deceased was head miller and superintendent of the machinery that it became his duty to place guards about this machinery, and having failed so to do he or his representative could not invoke the benefit of the statute, and this is the principal question to be determined, as the evidence fairly tends to show, and it is not disputed, that it was practical to place guards about this machinery.

In 1909, the Legislature passed an Act to provide for the health, safety and comfort of employees in factories, mercantile establishments, mills and workshops in this State, which became effective on January 1, 1910, the first section of which act provided, among other things: “All dangerous places in or about mercantile establishments, factories, mills or workshops, near to which any employe is obliged to pass, or to be employed shall, where practicable, be properly inclosed, fenced or otherwise guarded. No machine in any factory, mercantile establishment, mill or workshop, shall be used when the same is known to be dangerously defective, and no repairs shall be made to the active mechanism or operative part of any machine when the machine is in motion.” Hurd’s B. S., ch. 48, sec. 89, (J. & A. 5386.)

It appears from the evidence that the machinery was installed in this mill in the year 1905 by a Mr. Dorsey who placed the machinery in this mill under the direction of Mr. Becker, and he says: “I superintended the placing of the machinery there. Victor Hahn did not do it. Mr. Becker was the man I dealt with in a business way. He was the man who had to pass on everything as to the installation of the machinery. He was around there almost every day, both he and his son. I consulted with him about this machinery only in a business way. I employed my men myself. All the superintending that was done there while I was there I did myself. I said that Victor Hahn was superintendent while I was there because Mr. Becker introduced him to me as superintendent and head miller and after the mill started he was the man who instructed the mill hands.” The evidence of the other witnessess is to the effect that the Beckers managed and controlled the business and were the executive representatives of this corporation, and while the evidence tends to show that the deceased Victor Hahn was head miller and in charge of the machinery, his care for the machinery and management of it was, as we understand this evidence, at all times subject to the decision and determination of the Beckers. In other words, Hahn was at work for the Beckers at a salary of one hundred and twenty-five dollars per month; his business was to look after the machinery and if anything became out of repair would repair it, but there is nothing in this record to show that he was authorized to install any machinery except as he might obtain authority from the Beckers. His business was confined not only to the looking after the machinery but he worked in the mill as miller, and in fact at the time that he was killed he was engaged at work. It is provided by statute: “If any elevator, machine, electrical apparatus or system of wiring, or any part or parts thereof, in any factory, mercantile establishment, min or workshop, are in an unsafe condition, or are not properly guarded, where reasonable to guard the same, the owner or lessee, or his agent, superintendent or other person in charge thereof, shall, upon notice from the Chief State Factory Inspector, or the Assistant Chief State Factory Inspector, remedy such unsafe condition within a reasonable time after receiving such notice.” Section 93, ch. 48, Hurd’s R. S. (J. & A. if 5390.) The evident intention of this statute is to require the owner, lessee or person in charge of the mill to remedy the defect by placing guards where needed. It certainly was not intended that this burden should be cast upon one, though a machinist, to look after the improvements in the machinery when the owner and operator of the plant was present and in operation of the mill. Especially so in view of the language of the Supreme Court in the case of Streeter v. Western Wheeled Scraper Co., 254 Ill. 257, which says: “It imposes upon the master an absolute, specific duty,— one which he cannot delegate and against his neglect of which he ought not to be allowed to contract. If the employee must assume the risk of the employer’s violation of the statute the act is a delusion so far as the protection of the former is concerned.” In the same case the Court further says, in speaking of the effect of this statute that: “The effect of it is to create a new situation in the relation of master and servant, and to present the new question whether the doctrine of assumption of risk heretofore applied to that relation should apply in the same way to the new conditions. The duty of the master has been changed. He may no longer conduct his business in his own way. He may no longer use such machinery and appliances as he chooses. The measure of his duty is no longer reasonable care to furnish a safe place and safe machinery and tools, but in addition to such reasonable care he must use in his business the means and methods required by the statute. The law does not leave to his judgment the reasonableness of enclosing or protecting dangerous machinery, or permit him to expose to increased and unlawful dangers such of his employees as may be driven by force of circumstances to continue in his employ rather than leave it and take chances on securing employment elsewhere under lawful conditions. The guarding of the machinery mentioned in the statute is a duty required of the master for the protection of his workmen, and he owes the specific duty to each person in his employ. To omit it is a misdemeanor subjecting him to a criminal prosecution.”

It is said by counsel for defendant that the cost of repairing or placing of guards over these pulleys would be but a trifle and that the deceased could easily have placed such guards, and that by his failure so to do he became liable for a penalty. We do not believe that a person in charge of the machinery, taking care of it, as the deceased was, would incur a penalty for failure to install machinery that he had not been directed by the master to place therein when the master was actively participating in and managing the business of the going concern. This duty primarily rested upon Becker. The theory that the plaintiff cannot recover because of his failure or neglect to place the guards upon the machinery must be based upon the principle that although he may have been an employee, as he certainly was, he was guilty of negligence and assumed the risk of working with the machinery without guards. But, if this were true, it would not excuse the defendant from doing what the law requires of him, and the penalty imposed upon the defendant is to withdraw from it the defense of contributory negligence and assumed risk. The Supreme Court of this State seems to construe this act the same as the Mining Act, for it says, in the case of Streeter v. Western Wheeled Scraper Co., supra: “For many years we have held, in the. construction of the Mining Act, that neither assumed risk nor contributory negligence is available as a defense to a suit for damages caused by a wilful violation of the provisions of that act. Bartlett Coal & Mining Co. v. Roach, 68 Ill. 174. * * * This law was passed to protect employees, and in view of the construction given to the Mining Act in regard to the assumption of risk, the General Assembly must have supposed that the same construction would be given to this act in that regard.” Waiving the question as to the effect that the neglect of the deceased to place guards upon these pulleys would have upon the right of action for his injury, and the limiting of the right of defense of the defendant, yet the evidence shows he was receiving wages and not only looking after the machinery but was performing work, and performed such work as required him to pass near these pulleys, and there was at least evidence tending to show that he was an employee, and the evidence was not of that character that would warrant a court in saying that as a matter of law he was such a superintendent as would deprive him of the benefits of the statute. We think the case should have been submitted to the jury and that the trial court erred in directing a verdict, and the judgment of the lower court is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    F. W. Cook Brewing Company, Appellant, v. Hike Vaccaro, Appellee.
    1. Sales, § 199

      —when title to shipment passes. Where a contract of sale provides that a shipment shall be f.o.b. cars at the buyer’s place of business, a delivery does not take place so as to vest title in the buyer until the shipment is delivered at such place.
    2. Commerce, § 5*—when interstate shipments not prohibited. The citizens of any State have the right to sell and ship any article of commerce to a citizen of another State unless prohibited by Act of Congress.
    3. Commerce, § 6*—when importation of intoxicating liquors not prohibited. Where a person having his place of business in dry territory in this State orders shipments of beer f. o. b. cars at his place of business from a brewery in another State, held such sale and shipment was not prohibited by the Act of Congress passed August 8, 1890, nor in violation of the Local Option Act of this State, J. & A. 1f1f 4637 et seq.

    4. Intoxicating liquors, § 268

      —right to recover purchase price of imported liquors. Where intoxicating liquors are purchased and imported into dry territory in this State, the fact that the seller may have known that it was the intention of the buyer to sell them unlawfully will not bar a recovery by the seller of the purchase price where, there is no statute prohibiting a recovery under such conditions.
    Appeal from the Circuit Court of Williamson county; the Hon. W. W. Clemens, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded.
    Opinion filed July 28, 1914.
    Hartwell & White, for appellant.
    Sawyer & Otey, 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 McBride

delivered the opinion of the court.

The above entitled canses were consolidated and tried by the court without a jury, by consent, and at the conclusion of the trial the Circuit judge rendered judgment against the plaintiff for costs. The plaintiff appeals and the two cases are by agreement abstracted, argued and tried in this court together. In the abstract the former case is denominated as case No. 272 and the latter case as No. 273. See post, 397. The two cases grow out of an order based upon the same contract.

In No. 272, Mike Vaccaro is sued as principal and in No. 273 the appellees are sued as sureties upon the Mike Vaccaro contract. On the seventh day of May, 2909, Mike Vaccaro at Johnston City, Illinois, executed and forwarded to the appellant at Evansville, Indiana, the following agreement, the execution of which was completed on May 9, 1909, at Evansville, Indiana, by the appellant approving and signing the contract:

“This agreement, made and entered into this 7th day of May, 1909, by and between the F. W. Cook Brewing Company of Evansville, Indiana, and Mike Vaccaro, witnesseth: That the said Brewing Company hereby agrees to give the said Mike Vaccaro the exclusive privilge of selling its draught and bottled beers at wholesale in said town of Johnston City, Illinois, and agrees to sell and deliver to him its beers f. o. b. cars at Johnston City, Illinois, in carload lots at the following prices: * * * And the said Brewing Company further agrees to pay all freights on empty cooperage, cases and bottles returned to it by the said Mike Vaccaro; furnish ample ice for the preservation of the draught beer in transit; and make allowance and give credit for all bottle beer cases and bottles returned to it.# * #

It is also understood that the said Brewing Company shall not be expected to make any payments or allowances not herein specified. And the said Mike Vaccaro agrees to make settlements and payments whenever demanded by the said Brewing Company or its representatives ; take good care of all property of the said Brewing Company intrusted to his care; give special attention to the gathering up and return of all empty cooperage; and that during the continuance of this agreement he will neither sell nor-be directly or indirectly interested in the sale of any (beer) other than that of the said Brewing Company.

This agreement shall not be binding upon said Brewing Company until the same has been approved by its President, Vice-President or Secretary and Treasurer, and its corporate seal affixed at Evansville, Indiana. This agreement may be terminated by either party upon ten days notice to the other in writing. ’ ’

Upon the back of the foregoing instrument there was indorsed an agreement by Domeneco Bodasta and Antonio Vaccaro to stand as sureties: “In a sum not to exceed One Thousand Dollars for the faithful performance by the said Mike Vaccaro of all of the agreements and conditions contained in said agreement, hereby guaranteeing that the said Mike Vaccaro will pay said Brewing Company all sums which shall become due from him to it for beer sold to Mm, including cases and bottles, as well as for saloon fixtures and other merchandise. This shall remain a continuing security for the faithful performance by the said Mike Vaccaro of the conditions and agreement above referred to, and the failure of the said Brewing Company to notify the said sureties of any violation of said agreement by said Mike Vaccaro shall not release said sureties from liability for subsequent violations. Dated May 7, 1909.”

It is stipulated by the parties herein that as a result of an election under the Local Option Statute of the State of Illinois, Johnston City became dry territory in December, 1907, and remained “dry” until May, 1910. In a letter bearing date of May 7, 1909, Mike Vaccaro, after executing the above contract transmitted it to appellant and in such letter ordered one- car of beer to be sent at once, if the bond was satisfactory. Appellant forwarded the beer to Mike Vaccaro and paid the freight thereon to Johnston City, Illinois. Thereafter Mike Vaccaro made frequent orders of carloads of beer, some of which were shipped to him direct and others to the Circolo Popolara Club, as directed by Mike Vaccaro. This shipping of beer continued long after May, 1910, at which time Johnston City again became wet territory. The total shipments of beer made by appellant to Mike Vaccaro amount to $26,848.20, the last shipment having been made on March 4, 1911. Payments were made upon these shipments from time to time amounting to $25,287.18; there remained a balance of $1,560.52 due from Mike Vaccaro to appellant, to recover which these suits were instituted.

We will first dispose of the case against Mike Vaccaro, No. 272, wherein he is sued as principal. The declaration filed consisted of the common-law counts.

It is contended by appellee that as the contract provided that the beer should be furnished f. o. b. cars at Johnston City, Illinois, that the title remained in the appellant until its arrival at Johnston City, and that this was a delivery by appellant to appellee at Johnston City and constituted a sale at Johnston City in violation of the local option laws of Illinois, and rendered the contract void, and that no recovery could be had upon such contract for any of the beer so shipped.

We agree with the contention of counsel for appellee, that as the contract provided that the beer should be delivered f. o. b. cars at Johnston City that it contemplated a delivery at this place. There is no doubt but the general rule is that in the absence of an agreement as to the place of delivery that the delivery by the vendor to a common carrier is a delivery to the vendee at the place at which the common carrier received the goods, and that the title to the property vests in the purchaser immediately upon such delivery to the carrier. City of Carthage v. Duvall, 202 Ill. 234. If, however, the contract provides that the shipment shall be f. o. b. cars at the vendee’s home, or place of business, then the delivery to a common carrier will not be a delivery to the vendee, but it must be delivered to the vendee at his home or place of businss before the title is vested in the vendee. Olson v. Wabash Coal Co., 126 111. App. 253.

We are in accord with the contention of counsel for appellee that under the contract and payment of freight, etc., by appellant that appellant delivered the beer to the appellee in carload lots, on board the cars at Johnston City, Illinois, and that if such sale was in violation of and prohibited by law then there could be no recovery. It appears from the evidence that the contract was accepted and its execution completed at Evansville, Indiana, and provided for the delivery of the beer f. o. b. cars at Johnston City, Illinois, and the question here presented for our determination is: Does the sale and shipment in the manner herein provided violate the local option law of Illinois? As this beer was shipped from the State of Indiana into the State of Illinois, it was undoubtedly an interstate shipment, and for this reason counsel for appellant contends that such shipment and delivery is not in violation of the local option laws of this State, and that it is protected and exempted from the provisions of this statute by the Constitution of the United States, which provides: “The Congress shall have power * * * to regulate commerce with foreign nations and among the several States and with the Indian tribes.” It has been uniformly held by the Supreme Court of the United States that the citizens of any state have the right to sell and ship any article of commerce to a citizen of another State, unless prohibited from so doing by Act of Congress. “Another established doctrine of this court is, that where the power of Congress to regulate is exclusive the failure of Congress to make express regulations indicates its will that the subject shall be left free from any restrictions or impositions; and any regulation of the subject by the States, except in matters of local concern only, as hereafter mentioned, is repugnant to such freedom.” Bobbins v. Shelby County Taxing List., 120 U. S. 493.

It is quite clear, as we think, that until prohibited by Congress, any citizen may ship beer or other articles of commerce from one State into another.

The next question that arises is: What prohibition or regulation had Congress made, if any, prior to the making of this contract, and the shipping of this beer? The only regulation pointed out to us, or that we have in our research been able to find, is an act of Congress passed August 8,1890, which provides: “That all fermented, distilled or other intoxicating liquors or liquids transported into any State or Territory or remain therein for use, consumption, sale or storage therein, shall upon arrival in said State or Territory be subject, to the operation and effect of the law of such State or Territory, enacted in the exercise of its police powers to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise.” Prior to this enactment of Congress, it was held by the Supreme Court of the United States that in a shipment made by the citizen of one State into another, that so long as it remained in the original package the importer could sell it, notwithstanding such sale was prohibited by a statute of the State into which it was shipped. Leisy v. Hardin, 135 U. S, 100. After the passage of the Act of Congress above referred to, it was claimed that by such Act, as soon as the intoxicating liquors came within the borders of the State to which they were imported, that they were at once subject to the control of the State law prohibiting a delivery of them, and a construction of this Act was given by the Supreme Court of the United States in the case of Rhodes v. State of Iowa, 170 U. S. 412, in which it is said: “The Bowmcm case [125 U. S. 465] was decided in 1888, the opinion in Leisy v. Hardin was announced in April, 1890, the act under consideration was approved August 8, 1890. Considering these dates, it is reasonable to infer that the provisions of the act were intended by Congress to cause the legislative authority of the respective States to attach to intoxicating liquors coming into the States by interstate shipment, only after the consummation of the shipment, but before the sale of the merchandise, that is, that the one receiving merchandise of the character named should, whilst retaining the full right to use the same, no longer enjoy the right to sell free from the restrictions as to sale created by State legislation, a right which the decision in Leisy v. Hardin had just previously declared to exist,” And the Supreme Court, in giving its conclusions in this case further says: “We think that interpreting the statute by the light of all its provisions, it was not intended to and did not cause the power of the State to attach to an interstate commerce shipment, whilst the merchandise was in transit under such shipment, and until its arrival at the point of destination and' delivery there to the consignee, and of course this conclusion renders it entirely unnecessary to consider whether if the act of Congress had submitted the right to make interstate commerce shipments to State control it would be repugnant to the Constitution. ’ ’ Shortly after the adoption of our local option statute (J. & A. fifí 4637eí seq.) its constitutionality was attacked and many points were presented to the Supreme Court of the State of Illinois regarding its validity, and among them the point was made that the local option act was in violation of the interstate commerce clause of the Federal Constitution, and in passing upon that question the Supreme Court says: “Another point made by the counsel is, that the act violates the interstate commerce clause of the Federal constitution, and although that question is not involved in this case and any invalidity of the provision would not effect the act, the position of counsel is not tenable. In the section designed to prevent evasion of the act it is provided that the taking of orders or the making of agreements in anti-saloon territory for the sale or delivery of intoxicating liquors shall be held to be an unlawful selling. We are required to interpret the act in such a way as to uphold it rather than in a way which would invalidate it (People ex rel. Columbia, Const. Co. v. Hinrichsen, 161 Ill. 223), and it is always presumed that the legislature did not intend to exceed, and have not, in fact, exceeded, their jurisdiction. (Endlich on Interpretation of Statutes, sec. 171; Stanton v. City of Chicago, 154 Ill. 23). It is not necessary every time a law is passed that the legislature should specifically state that there is no intent to interfere with interstate commerce or some other subject of which they have no jurisdiction. The act does not purport to control ha any manner the importation of liquor from other States.” People v. McBride, 234 Ill. 176.

It is contended by counsel for appellee that: “A contract made in one State for the sale of liquor in another, such as would be valid at common law, and which is not shown to be invalid, where made, will enable the seller to obtain an action for the price in the State where delivery is made, notwithstanding, if made in the latter State the contract would have been void. But this rule is of no avail in the face of statutes, such as have been enacted in several States, providing that there shall be no recovery on a contract of this kind when the purchaser buys with a view to violating the laws of his own State, although the contract would have been good where made.” We do not regard this rule of law as applicable, as there is no statute in Illinois prohibiting a recovery under such circumstances. The Supreme Court of Illinois, in passing upon a kindred question with reference to the transportation of liquors from another State into this State, says, in classifying the different kinds of nuisances, enumerates three and says the second consists of: “Those which in their nature are not nuisances but may become so by reason of their locality, surroundings or the manner in which they may be conducted, managed, etc.” And later on in the opinion says: “As we view this case, under the stipulations in tlais record the transaction properly falls within the second class of nuisances as above classified, and could only become a nuisance from the manner in which it might be conducted, managed, etc. The right of the citizen to purchase goods for his own consumption from dealers in other States, and the right to have those goods carried and delivered to him, are to be classed among the highest rights of the citizen, and can only be curtailed when, in the manner of conducting the business, they may endanger the health, life or property of other citizens. There is nothing in intoxicating liquor inherently dangerous. It can only be said to be dangerous to those who use it. It is not like explosives or dangerous drugs, that may carry with them a menace to the persons and property of others, and there is nothing in the stipulation to disclose that the business as conducted was other than the ordinary course in relation to the carrying and delivering of other articles of trade and commerce that might be, and ordinarily are, carried by such companies. In other words, there is nothing to show that in the method of delivery or in the manner of conducting the business there was anything that could be said to be offensive to the public morals or good order, or could in any way tend to disturb anybody in his tranquility of mind, health or body, safety or right of property. In the absence of such showing it cannot be successfully contended that such business or transaction may be declared to be a nuisance.” City of Carthage v. Munsell, 203 Ill. 478.

From the views above expressed by'our Supreme Court, with reference to the business of selling intoxicating liquors, we are of the opinion that even though liquors are purchased and imported into this State that the fact that the vendor may have known that it was the intention of the purchaser to sell them unlawfully, that such knowledge would not bar a recovery by the vendor unless there was a statute prohibiting a recovery under such conditions.

We are of the opinion that the court erred in rendering judgment against the plaintiff for costs, and for the reasons above set forth the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    F. W. Cook Brewing Company, Appellant, v. Domeneco Rodasta and Antonio Vaccaro, Appellees.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Williamson county; the Hon. W. W. Clemens, 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 F. W. Cook Brewing Company against Domeneco Bodasta and Antonio Vaccaro to recover against the defendants as sureties on a contract between the plaintiff and one Mike Vaccaro, the principal. From a judgment against the plaintiff for costs, plaintiff appeals.
    This case and the case of F. W. Cook Brewing Company against the principal, Mike Vaccaro, were consolidated and tried by the lower court without a jury, and on appeal they were consolidated in the Appellate Court. For the reasons set forth in the opinion filed in the case of F. W. Cook Brewing Co. v. Vaccaro, ante, p. 387, in which the Appellate Court upheld the validity of the original contract, this case is reversed and remanded.
    Hartwell & White, for appellant.
    Sawyer & Otey, for appellees.
   Mr. Justice McBride

delivered the opinion of the court.


author: Mb. Justice McBride

text:
    Charles Feehrer and Anthony Feehrer, Plaintiffs in Error, v. The Fidelity & Casualty Company of New York, Defendant in Error.
    Insurance, § 397a

      —provision in plate glass policy limiting liability construed. A provision in a plate glass policy that the insurance company shall not be liable for any loss or damage resulting directly or indirectly from any inundation, held to exempt the company from liability for damages resulting to the glass by persons using row boats during an inundation.
    Error to the Circuit Court of Gallatin county; the Hon. Enoch E. Newlin, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed July 28, 1914.
    Bartley & Bartley, for plaintiffs in error.
    Roedel & Roedel, for defendant in error.

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

   Mb. Justice McBride

delivered the opinion of the court.

This was an action based upon a plate glass policy issued by the defendant to the plaintiffs on March 21, 1913, and was to continue in force until noon of the 21st day of March, 1914. The declaration alleges the issuing of the policy, which provided that in consideration of the sum of $22.81 the defendant agreed to indemnify plaintiffs, “Against loss or damage of the glass described in the schedule set forth hereon, by breakage and other causes beyond the assured’s control.”

The declaration further alleges that the foregoing agreement is subject to the following conditions: “Among them is one numbered seven, which provides any loss or damage resulting directly or indirectly from any earthquake or any inundation, insurrection or riot, or usurped power.”

The declaration further avers that the plaintiffs are the owners of the property and allege a loss in the breakage of glass to the amount of $197.60, then avers: “That on the first day of April, 1913, the city of Shawneetown was then and there inundated by the Ohio river by reason of said river overflowing its banks and the top of a certain levee or embankment theretofore erected about said city for the protection thereof and its citizens and property from such inundation; that subsequent to said date and prior to the fifth day of said month the said inundation had reached its crest, and had partially inundated the buildings in which said plate glass were then and there located and used as window lights in the windows of said buildings, and the said buildings had become, from the foundation thereof, inundated to a depth of, to-wit, from eight to ten feet, and said windows, in which were located the said plate glass, had likewise become inundated to a depth of, to wit, from five to seven feet, from the window sills in which they were respectively located towards the ceiling of the first story of said buildings, several feet, to wit, from four to six feet of said plate glass then and there extending above the surface of the water flowing through said buildings and about the same as the result of said inundation; that from the date of said inundation until the injury to said glass the plate glass was not injured from any cause whatever and the proportion thereof hereinafter mentioned as being above the surface of the water remained exposed to public view; that prior to and on said fifth day of April the waters overflowing said city, by reason of said inundation, had become quiet and in a condition that it was safe for individuals to go from place to place in said city by means of skiffs, rafts and water crafts of. a nature capable of being propelled and navigated by means of oars, paddles, * * * and on, to wit, on or about the fifth day of April aforesaid, divers and sundry individuals, whose names are unknown to said plaintiffs, took occasion to then and there ride upon the water then submerging said city as aforesaid in skiffs, boats, * * * under their care, control and' management, from place to place, and while thus navigating the said water occasioned by said inundation, said individuals in said boats * * * went from place to place within said city and in the vicinity of and to the place where said buildings were then located, and through the negligence and carelessness or recklessness or want of due care in the management of said boats and crafts then being * * * upon said water, ran upon, to and against said plate glass forming windows in said buildings and by means thereof crushed, broke and rendered worthless said plate glass; and divers other parties on or about said date, having in charge boats or water crafts which were dangerous and out of repair and unmanageable and known by said individuals in control thereof to be unmanageable in time to have averted the accident and resulted loss aforesaid, recklessly and carelessly ran to, upon and against said plate glass or some of them and broke, crushed and rendered useless and valueless the same.” The declaration then alleges that other individuals knowing that their boats and oars were out of repair, and in a condition that in the natural and proper result of the use of the same the accident to the said plate glass might result, and with knowledge of said fact, in time to have averted the injury and loss did knowingly and carelessly use the same and did negligently run against said plate glass and crush the same. The declaration then alleges that by reason of the premises and the intervention of the acts of said third agencies as aforesaid, breaking the casual connection between the inundation and the injury, the injury and consequential loss is the result of said responsible third agencies, and the plaintiffs aver that the inundation did not improve or immediately set in operation the new chain of causation which resulted as aforesaid. It then alleges the proofs of loss were made and refusal upon the part of the defendant to pay, upon the pretext that the loss was occasioned or resulted directly or indirectly from an inundation, and from no other cause.

To this declaration the defendant filed a demurrer which was sustained, and the plaintiffs having elected to abide by their declaration judgment was rendered against them for costs, to reverse which judgment the plaintiffs prosecute this writ of error.

The question presented and argued by counsel for plaintiffs in error and defendant in error, hereinafter called plaintiffs and defendant, is as to the liability of the defendant for the breakage of the plate glass by parties rowing in boats upon the streets that were inundated, and while so rowing ran into and destroyed the plate glass in the buildings described in the manner set forth in the declaration. The policy provides that the defendant agrees to indemnify the plaintiffs “Against loss or damage of the glass described in the schedule set forth hereon by breakage from causes beyond the assured’s control, etc.,” and then further provides that the foregoing agreement is subject to the following conditions, that: “Any loss or damage resulting directly or indirectly from any earthquake or any inundation, insurrection or riot or any military or usurped power.” It is argued by counsel for plaintiffs that the condition of the policy of insurance, “which provides that the Company shall not be responsible for any loss or damage resulting directly or indirectly from any- earthquake, etc., is not sufficient to bring the loss or damage in the case at bar within the exception therein provided for, before the loss or damage can be said to result directly or indirectly from the inundation described in the declaration, it must appear, as in cases where the loss is by the act of God, that the loss was the sole result of the inundation. ’ ’

It is further stated in plaintiff’s brief at page 13: ‘1 So, in this case, the inundation was not the sole cause nor a proximate cause, but the acts of the divers parties in running their boats against the plate glass windows was the proximate cause, acting independently of the inundation, the latter being a remote cause or mere condition. # * * The inundation could not in any event be considered the proximate cause of the injury and exculpate the Insurance Company from the performance of its contract.”

We cannot agree with the contention of counsel for plaintiff in their version of the meaning of the terms here employed, to wit: “Resulting directly or indirectly from inundation.” A result may indirectly follow from certain acts or conditions without being the proximate cause, yet they are or may be the indirect results. While the acts of the several individuals (third parties) in rowing their boats against the plate glass windows may have been the direct or proximate cause of the injury, this, however, is not sufficient to relieve from liability, for it must further appear that it did not result indirectly as well. Webster in defining “indirect,” says: “In resulting directly from an act or cause but more or less remotely connected with or growing out of it, as indirect results, damages or claims.” So it would appear that if the injury results indirectly or remotely from the inundation then no liability could attach. It appears to us that the conditions existing in the streets of Shawneetown, the water being several feet deep which permitted the unusual spectacle of people rowing boats in the streets, was a condition that contributed to the results produced by these parties. Were it not for this condition the boats could not have been rowing upon the water in the streets in such manner as to run into the windows, and we are forced to the conclusion that the injuries here sustained resulted, at least indirectly, from the inundation. It is said in the case of Frisbie v. Fidelity Casualty Co., 133 Mo. App. 30: “Where a plate glass policy provided for indemnity for breakage, bnt stipulated that the insurer would not be liable for damages caused as a result of fire, it was held that where a fire occurred in the building and it became necessary to dynamite the building, from which injury to the plate glass resulted, the Insurance Company was not liable as the fire and not the dynamiting was the proximate cause of the injury.” And this is also sustained by the case of Jones v. Metropolitan Casualty Ins. Co., 144 Wis. 66.

We do not believe that the language employed in this exception could be misunderstood; it is clear and provides that the defendant shall not be liable for any loss or damage resulting directly or indirectly from any inundation. It was not in the mind of either of the parties to this contract, as we think, to create a liability upon the part of the defendant, where it grew out of a flooding of the streets to the depth of several feet, as alleged in the declaration, and we do not think that the mere fact that the direct act of breaking the plate glass could create the liability in the face of this exception. We are of the opinion that the Circuit Court properly sustained the demurrer to the plaintiffs’ declaration, and the judgment is affirmed.

Judgment affirmed.


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    August Young, Appellee, v. East St. Louis & Suburban Railway 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.
    Reversed.
    Opinion filed July 28, 1914.

      Abstract of the Decision.
    Costs, § 14—when judgment against defendant on dismissal for want of prosecution erroneous. Where in a personal injury case the plaintiff failed to appear on the day set for trial and the defendant moved that the suit be dismissed for want of prosecution and for a judgment against plaintiff for costs, and in support of the motion presented a release from liability and an agreement executed by the plaintiff to dismiss the suit and pay the costs, held it was the duty of the court to enter judgment against plantiff for costs unless he had procured an order to prosecute as a poor person, and that the action of the court in entering on its own motion a judgment against defendant for costs, for the reason it appeared that plaintiff was insolvent and unable to pay costs, was improper.

      Statement of the Case.
    Action by August Young against Bast St. Louis & Suburban Bailway Company to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of the defendant.
    Between the time of the instituting of said suit and the date set for trial plaintiff settled his cause with defendant for the amount of two hundred and seventy-five dollars, and agreed to dismiss his suit and pay the costs. Defendant paid plaintiff the two hundred and seventy-five dollars and plaintiff signed an agreement releasing defendant from any further liability ; and it was further provided in said agreement that plaintiff was to dismiss the aforesaid suit at his cost. On the day set for trial the plaintiff failed to appear and a motion was interposed by defendant to dismiss the suit for want of prosecution, and for judgment against the plaintiff for costs, and in support of such motion presented a release and agreement containing the provision above set forth. The court refused to dismiss the suit at cost of plaintiff because it appeared that the plaintiff was insolvent and unable to pay costs, but of its own motion rendered judgment against the defendant for costs. To reverse the judgment, defendant prosecutes this appeal.
    Barthel, Farmer & Klingel, for appellant.
    L. P. Zerweck, for appellee.

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

   Mr. Justice McBride

delivered the opinion of the court.


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    Town of Canteen, Appellant, v. Fred Weber and Martha Weber, Appellees.
    (Not to be reported in full.)
    Appeal from the City Court of Bast St. Louis; the Hon. W. M. Vandeventee, 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 Town of Canteen against Fred Weber and Martha Weber to recover a penalty under section 71, ch. 121, Hurd’s B. S., J. & A. 9700, for the obstruction of a highway. The charge is that the defendants built a fence in the middle of the road covering one-half of the road and extending about three hundred feet parallel with the road, and that the defendants had been verbally notified, and the defendant Fred Weber notified in writing, to remove the obstruction. It further appeared that the defendants had promised to remove the obstruction in ten days, but that they had failed to do so.
    The case was tried before a jury and a verdict was returned finding the defendants not guilty. To reverse the judgment, plaintiff appeals.

      Abstract of the Decision.
    1. Roads and bbidges, § 15*—period of user to establish highway. A period of user for fifteen years is all that is required under section 1, eh. 121, Hurd’s R. S., J. & A. 1f 9628, to establish a public highway.
    2. Roads and bbidges, § 11*—sufficiency of instruction as to establishment of public highway. An instruction which tells the jury that if a road is used and traveled by the public as a highway and is recognized and kept in repair as such by the highway commissioners, proof of such facts furnish a presumption liable to be rebutted that such road is a public highway, held subject to the objection that it does not state the period for which the road must be used to constitute it a public highway.
    3. Costs, § 26*—when town not liable for costs. A judgment against a town for costs is improper in a suit by it to recover a penalty for the obstruction of a public highway.
    N. C. Lyrla, for appellant.
    W. E. Knowles, for appellees.
   Mr. Justice McBride

delivered the opinion of the court.


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    Thomas John et al., Appellees, v. Walter Worthen et al., Appellants.
    1. Indemnity, § 9

      —when bond not construed to cover past delinquencies. -An indemnity bond will not be construed retroactive’ in effect or to cover past delinquencies unless it in terms states it is to have such effect.
    2. Indemnity, § 9*—when language of bond insufficient to cover past defalcations. Where a bond given to indemnify sureties on a bond of a county clerk states that if the obligor will save and keep harmless the said county clerk and his sureties from all loss and damage and from payment of any sum of money on account of them or any of them being sureties upon the bond of said county clerk, held that the language of the bond did not make the obligor and his sureties liable for shortages of the county clerk which occurred before the bond was executed.
    3. Indemnity, § 24

      —evidence admissible to prove discharge of obligor in indemnity bond. In an action on a bond given by defendants to indemnify the plaintiffs as sureties on another bond against any loss resulting from defaults of their principal, evidence tending to show that the plaintiffs for a valuable consideration released and discharged their principal from any further liability so far as they were concerned and that they agreed to assume the liability themselves, held admissible on the ground that the effect of such an agreement would discharge the defendants.
    Appeal from the Circuit Court of Jackson county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded with directions.
    Opinion filed July 28, 1914.
    John M. Herbert, L. R. Stewart and H. Clay Horner, for appellants.
    Martin & Glenn, for appellees,

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

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

   Mr. Justice McBride

delivered the opinion of the court.

This was an action brought by the appellees against the appellants upon an indemnifying bond and at the conclusion of the evidence the court directed a verdict for the plaintiffs. The defendants prosecute this appeal.

It appears from the record in this case that Dan Bower was county clerk of Jackson county; that he was totally blind and had been in that condition for six or seven years, and for some time prior to July 1, 1910, one Zardia Crain had been acting as deputy county clerk for Mr. Bower; that Walter Worthen, who had been a clerk in the office for some time, was appointed deputy clerk, taking the place of Zardia Crain, and on August 13, 1910, the appellants executed and delivered to the appellees a bond in the penal sum of $5000, payable to the appellees, conditioned, that if the said Walter Worthen, who has been appointed deputy county clerk, shall save and keep harmless the said Thomas John and the other appellees, and each and all of them from all loss and damage and from the payment of any sum of money on account of them or any of them being sureties upon the bond of Dan M. Bower as county clerk, and if the said Walter Worthen shall well and truly perform the duties of said office of deputy county clerk, and shall turn over all moneys which may come into his hands by reason of his said office then this obligation to be void. A short time prior to the appointment of Worthen as deputy county clerk it had been ascertained that a shortage of about $325 existed in said office, which was known to Worthen, but it appears and is claimed by the appellants that the $325 was not the full amount of shortage at that time but there was then a shortage of over $1,400, and later on more was discovered and suit was instituted against Dan M. Bower and the appellees as sureties upon the bond of the county clerk, and judgment recovered against them for $2,843.99, which they claim to have paid. This suit is instituted upon the bond in question for the purpose of recovering the amount that appellees were compelled to pay by reason of having been sureties upon the bond of Dan Bower. It is claimed by appellees that the provision of the bond, to wit: “Shall save and keep harmless the said Thomas John et al., and each of them from all loss and damage and from the payment of any sum of money on account of them or any of them being sureties upon the bond of Dan M. Bower as County Clerk, etc.,” creates a liability upon the part of Walter Worthen and his sureties to refund to appellees the amount paid out by them, and the court having adopted this view of the law directed a verdict for the appellees for the full amount claimed. It was claimed by appellants upon the trial of the case that the said Dan M. Bower became a defaulter before they executed the bond in ques- ' tion, and that all or most of the shortage existed prior to the time of the making of said bond by appellants.

The declaration was in the usual form and the breach assigned was that on November 15, 1906, appellees with others became sureties of the said Dan M. Bower on his official bond as county clerk of the county of Jackson; that said Bower did not keep and observe the conditions of his said bond as county clerk but therein made default and neglected to account for and turn over large sums of money due from him to the county of Jackson, and that a suit was instituted upon the bond of the said Dan M. Bower and appellees as sureties and judgment recovered for $2,843.99. To this declaration appellants filed several pleas: First. That the writing obligatory sued upon was executed and delivered without any consideration. Second. That the supposed writing obligatory was procured by fraud on the part of the obligees and that the appellants were designedly and fraudulently induced to execute the bond sued upon. The third plea alleges that the obligees in the bond knew that the said Bower was a defaulter and that a fraudulent scheme and conspiracy was formed and appellants tricked into the signing of this bond. The fourth plea alleged that prior to the institution of the suit herein that a settlement was made by the appellees with Dan M. Bower, by which they assumed all further liability upon said bond and released the said Bower from all liability to them as such sureties. Thereafter an additional plea was filed averring that the shortages, defaults and failures of Dan M. Bower accrued prior to the making of the bond sued upon. The third and fourth additional pleas aver payments. The demurrer was sustained to the second additional plea. Upon these pleas issues were formed and the cause tried.

A number of errors have been assigned as having occurred during the trial of this case. The principal one, however, arises upon the admission of evidence and the striking of the first additional plea from the files. During the progress of the trial appellants offered to prove that the shortage sought to be recovered, at least a part of it, occurred prior to the execution of the bond sued upon, as averred in the first additional plea. This testimony was objected to, the objection sustained and the evidence excluded from the consideration of the jury. At the close of all of the evidence the court, upon motion of counsel for appellees, struck appellants’ first additional plea from the files upon the ground that it did not present a material issue. This plea, in effect, avers that the loss and damage sued for and set forth in plaintiffs’ declaration were incurred before the execution of the instrument sued upon. The ruling of the court upon its refusal to admit this evidence and in striking this plea from the files presents the question of the liability of the appellants upon this bond for any losses or defaults' that occurred prior to its execution. This is the principal question in this case and presents for our determination the extent of the liability of appellants upon this bond. The language of the bond is that: “If the said Walter Worthen, * * * shall save and keep harmless the said Thomas John et al., and each and all of them from all loss and damage, and from the payment of any: y(. -f money on account of them or any of them beingy^-yeties upon the bond of Dan M. Bower.” It is cla. . by counsel for appellees, and so held by the tri art, that this language made appellants liable, not - for any shortages that occurred after the making ( ,e bond in question and while he was acting as depu county clerk thereafter, but that it also made appe" ffs liable for all shortages that occurred before t execution of such bond as well. This bond taken as .vhole was not an official bond or one required by st ,te to be given. It was of a dual character, and so . as it undertook to indemnify the appellees agar any loss or default of the county clerk, Dan M. Be y was as to such appellees merely sureties. In the construction of bonds of this character the courts have repeatedly held that: “A surety is not to be held beyond the precise terms of his contract. His liability is strictissimi juris, and cannot be extended by construction.” People v. Toomey, 122 Ill. 315. “In such case the liability of the surety will not be extended by implication or construction beyond the precise terms of his undertaking, which is to be strictly construed.” Abrahams v. Jones, 20 Ill. App. 86; Waters v. Simpson, 7 Ill. (2 Gilm.) 570; Ovington v. Smith, 78 Ill. 250.

Another rule to be observed in the construction of instruments of this character is that the bond will not be retroactive in effect, and does not cover past delinquencies, unless it in terms says that it is to have such effect, so that before an obligation of this character shall be construed as being retroactive it is not sufficient that the language implies a liability but the language must be such as to expressly include such liability in its terms. It is said in the case of Bartlett v. Wheeler, 195 Ill. 451: “As a general rule, ‘sureties are only liable for the defaults of their principal during the term, for which their bond was given, and after it was given, unless it is retrospective in terms.’ (2 Sutherland on Damages,—2d Ed.—sec. 480, and cases referred to in note 1). It is said in Brandt on Surety-ship and Guaranty (2d Ed., vol. 2, sec. 526): ‘As a general rule, the bond of a public officer has no retroactive effect, and does not cover past delinquencies, unless it in terms says that it is to have such effect.’ ” See also Drake v. Sherman, 179 Ill. 362. The situation of the parties to this agreement or bond at the time it was entered into was that Dan M. Bower was county clerk, was a blind man, and that Walter Worthen had been or was about to be appointed deputy county clerk to take charge of the business. Nothing was said to Worthen or any of his cosureties about incurring any liability for the past conduct of Bower, and no indications given of any desire upon the part of the appellees to want indemnity for Bower’s past conduct, except such as is claimed is implied by the language of the bond. If any one of the parties to the obligation had any such an idea, as now claimed, it rested with appellees only, and they were by concealment endeavoring to secure themselves against loss which they knew had already occurred, but was not known to the appellants. Under such circumstances they certainly are not entitled to any greater rights against these appellees than the language of the bond by the most strict construction would give them. It is said by counsel for appellants that the words, “On account of them or any of them being sureties upon the bond of Dan M. Bower,” are broad enough to cover not only the liability that they were then incurring, or would in the future incur by being sureties, but also the liability that they had incurred by reason of having been sureties for him. The language, “Shall save and keep harmless appellees * * # on account of them being sureties upon the bond of Dan M. Bower,” should have the construction of saying, inasmuch as you are now on the bond of Dan M. Bower we will save and keep you harmless in the future, and indicated, as we think, an undertaking of liability against any defalcation that may occur in the future. If it had been intended, without concealment, to secure indemnity for retrospective defaults, then the natural and probable language would have been to have saved and kept appellees harmless on account of defaults that may have heretofore occurred or shall hereafter occur, or some such expression of this character to indicate an intention to bind not only for the future but for retrospective defaults as well. We think the fair import of the language of the bond is that appellees should be liable for transactions which should occur in the future, after the bond was executed, and nothing more. This contention is well sustained by the case of Drake v. Sherman, 179 Ill. 362.

It is also urged as error the action of the court in excluding the testimony tending to show a release, or rather accord and satisfaction, to the appellees made by Bower, whereby it is claimed that for a valuable consideration the appellees released and discharged Bower from any further liability, so far as they were concerned, and assumed the liability themselves. Evidence was offered tending to show such a state of affairs, and we think that this evidence should have gone to the jury under proper instructions, for if an agreement was entered into whereby the appellees discharged Bower, the effect of it would be to also discharge appellants, and we are of the opinion that the court erred in excluding this testimony from the jury.

It is also contended that the court erred in sustaining the demurrer to appellants’ second additional plea. We agree with the court that this plea was not sufficient, that it was indefinite and uncertain in its terms and did not by proper averments set up a sale of the office or continuing the office by Worthen under a contract of sale.

Other errors have been assigned, but we do not deem it necessary to consider them, as enough has been said to express our views upon this case, and in another trial we think that the errors heretofore made can be avoided. For the errors pointed out the judgment of the lower court will be reversed with directions to the trial court to set aside the order striking appellants’ first additional plea from the files and proceed with the trial in accordance with the views herein expressed.

Judgment reversed and canse remanded with directions.


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    Royal M. Hamman, Administrator, Appellee, v. Illinois Central Railroad Company, Appellant.
    (Not to The reported in full.)
    Appeal from the City Court of East St. Louis; the Hon. Robekt H. Flannigan, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded.
    Opinion filed July 28, 1914.
    Statement of the Case.
    Action Tby Boyal M. Hamman, administrator of the estate of Phillip Hamman, deceased, against Illinois Central Bailroad Company to recover damages for the death of the deceased caused by being struck by one of defendant’s trains at a highway crossing. To reverse a judgment entered on a verdict in favor of plaintiff for four thousand dollars, defendant appeals.
    The accident happened at a highway crossing known as the Chartrand Crossing, on what is called the Palling Springs road or avenue, near the southwest limits of the city of East St. Louis. At this place the defendant’s railroad consists of three tracks, extending nearly north and south, and are located about thirty feet apart. The east track is called the inbound track, the second the outbound track and the third the yard track. A pair of scales is located upon the yard track and at the distance of about three hundred fifty feet south of the Chartrand Crossing. The Palling Springs highway crosses these tracks at an angle of about thirty degrees, the highway extending nearly northeast and southwest. The tracks are elevated the distance of from four to six feet where this highway crosses them and the center of the highway at the place is graded in such a manner as to make an approach onto these tracks. On the day in question the deceased, Phillip Hamman, and a Mr. Abbot had been engaged at work in a field near this crossing, and it being the noon hour had ceased work and were preparing to eat their dinner and from some cause undertook to cross defendant’s tracks. A short time before the deceased and Abbot undertook to cross the tracks the defendant’s servants passed along this yard track with an engine, going up to the scales for the purpose of weighing the cars. The engine was on the south end of the cars and after weighing them the engine pushed the four cars back to the north and towards Chartrand Crossing, the engine being in the rear with the cars in front, and was running at the rate of from four to six miles an hour. At this time another train was passing along the inbound track going in the same direction, towards the north, at the rate of about fifteen miles per hour and consisted of quite a number of cars, making a train of considerable length. Just before the engine with the four cars reached Chartrand Crossing the deceased and Abbot walked upon the yard track, apparently engaged in watching the train that was passing on the inbound track, and while they were upon the yard track the front car of the train upon that track struck them and killed them.
    Abstract of the Decision.
    1. Ratt.koads, § 695

      —sufficiency of averments of negligence. A count in a declaration averring that while the deceased was walking across the railroad tracks at a public crossing the defendant by its servants so carelessly and improperly drove and managed its engine and train that by and through its negligence the engine was then and there attached to said train of cars backed in front of said engine, and did not have any flagman at said crossing nor any switchman or brakeman on the front car of said train, held not subject to the criticism that the negligence charged is not that of careless and improper driving and managing the engine and train, and held that it was sufficient to sustain a judgment, especially after verdict.

      Kramer, Kramer & Campbell, for appellant; John G. Drennan, of counsel.
    Silas Cook and Louis Beasley, 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 McBride

delivered the opinion, of the court.

2. Railboads, § 7B4*—when question whether failure to look and listen is negligence is for jury. In an action against a railroad company to recover for the death of a pedestrian at a highway crossing, held under the facts of the case it was a question for the jury to determine whether the deceased was negligent in failing to look and listen for the approaching train, it appearing that by looking he could have seen the train approaching, but it also appearing that a train on another track attracted his attention and that the highway ran diagonally across the tracks so that in crossing, his back was nearly towards the approaching train.

3. Railboads, § 770 —when giving of instruction inapplicable to pleadings and evidence reversible error. In an action against a railroad company to recover for the death of plaintiff’s intestate at a highway crossing, the giving of an instruction which directed a verdict and injected into the case the question whether the defendant was running its train over the crossing at a greater speed than usual and than was reasonably safe to persons about to cross the tracks, held reversible error where the declaration did not charge and there was no evidence tending to show that the train was running at an unusual or excessive rate of speed.


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    Gerret Wilkins, Appellee, v. Madison Coal Corporation, Appellant.
    (STot to Tbe reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. G-eobse A. Cbow, 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 Gierret Wilkins against Madison Coal Corporation to recover for personal injuries received by plaintiff on account of a fall of coal from the roof of a crosscut in which plaintiff and his buddy were engaged in running a machine used in undercutting coal in defendant’s mine. The declaration charged that the defendant wilfully failed to inspect the roof and to observe its dangerous condition and that the mine examiner within twelve hours previously inspected the place and observed the dangerous roof at said point, and wilfully failed to place a conspicuous mark or sign thereat, and wilfully failed to make a daily record of the conditions as required by statute. A jury was waived and trial had before the judge which resulted in a finding and judgment in favor of plaintiff for $2,999. To reverse the judgment, defendant appeals.
    Abstract of the Decision.
    1. Mines and minerals, § 176

      —when evidence insufficient to show wilful failure to marie dangerous condition of roof of mine. In an action by a miner to recover for personal injuries received by a fall of coal from the roof of a crosscut in defendant’s mine, where the injury was alleged to have been caused by the wilful failure of the mine examiner to observe the dangerous condition of the roof and place a conspicuous mark thereat, held that a judgment in favor of plaintiff was not sustained by the evidence, it appearing that the mine examiner had sounded the roof and found no loose condition existing in the roof and that thereafter other employees had sounded the roof and found it solid, and there was no evidence to show that the dangerous condition existed at the time the mine examiner inspected it.
    2. Mines and minerals, § 86*—liability for dangerous condition of roof of mine where examiner failed to discover defect. A mining company is not liable for injuries resulting from the dangerous condition of the roof of its mine merely because the defect existed at the time the mine examiner inspected and he failed to discover it, where there were no physical facts that were visible or that could be ascertained by the means required by statute and there was nothing to indicate a' dangerous condition. ■ ”

      C. H. Burton, for appellant; John G. Drennan, of counsel.
    Webb & Webb, for appellee.

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

   Mr. Justice McBride

delivered the opinion of the court.


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    The People of the State of Illinois for use of Betty Dunn, Appellee, v. Roy Moore, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 842

      —sufficiency of certificate that record contains alt the evidence. The making of a certificate that the record contains all the evidence is a judicial act which must be performed by the judge; a certificate of the reporter cannot be taken as a substitute for the certificate of the judge.

      Appeal from the County Court of Johnson county; the Hon. J. P. Hight, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed July 28, 1914.
    Statement of the Case.
    Bastardy proceeding by the People of the State of Illinois for the nse of Betty Dunn charging Roy Moore with being the father of her bastard child. The trial resulted in a verdict finding the defendant the father of the child and judgment was entered requiring him to pay $350 for its support. To reverse the judgment defendant appeals.
    O. R. Morgan, for appellant.
    H. A. Spann, for appellee.

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

      See Illinois Notes Digest, Vols. Xlto 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 McBride

delivered the opinion of the court.

2. Appeal and error, § 1269 —presumption in absence of certificate of trial judge. Where no certificate of the judge certifying that the record contains all the evidence is incorporated in the bill of exceptions, the Appellate Court must presume that the jury and the court were warranted in finding the verdict and judgment rendered and cannot interfere with such verdict on an appeal.

3. Bastards, § 32*—when presence of child in court room not error. In a bastardy proceeding it is not improper to have the child present in the court room, and the fact- that prosecutrix sat near the jury with the child held not prejudicial where the courts on objection of defendant’s counsel required her to remove with the child to another part of the room, it appearing there was no effort made to exhibit the child to the jury for their critical examination.

4. Bastards, § 25*—matters of which prosecutrix may not be cross-examined. Refusing to permit the prosecutrix in a bastardy proceeding to answer questions propounded to her on cross-examination with reference to whether she had ever before had intercourse with other men and with reference to whether she had not on former occasions claimed to be a virtuous woman, held not improper.

5. Instructions, § 88*—when may authorize jury to apply their knowledge and experience. An instruction authorizing the jury to apply whatever experience and knowledge they may have had in determining the facts of the case, held not objectionable.

6. Instructions, § 95*—when not improper as to credibility of witnesses. The giving of an instruction which tells the jury that they are not “bound" to believe a fact merely because a witness has testified to it and “should not do so’’ if from all the facts and circumstances proved the witness is mistaken or testified falsely, held not objectionable for the reason that the jury may be led to believe that they are not to consider other evidence.

7. Bastards, § 34*—when instruction proper. An instruction in a bastardy proceeding which tells the jury that even if the prosecuting witness had intercourse with other persons such fact would not warrant the jury in finding the defendant not guilty, if they believe from a preponderance of the evidence that defendant is the father of the child, held to properly state the law.

8. Appeal and error, § 1543*—when giving inaccurate instruction on credibility of witness harmless. An instruction which states: “You are instructed that the credibility of the witnesses is a question exclusively for the jury; and the law is that where a number of witnesses testify directly opposite to each other the jury are not bound to consider the weight of the evidence as evenly balanced. The jury have the right to determine from the appearance of the witnesses on the stand, their manner of testifying, their apparent candor and fairness and from all the other surrounding circumstances appearing on the trial which witness or witnesses are most worthy of credit and give credit accordingly," field subject to the criticism that omits the expression “ail the evidence in the case';” but the giving of the instruction held not reversible error in view of the other instructions given, and it could not be said that the jury were misled thereby or that a different result would have been reached had the instruction been strictly accurate.

9. Bastards, § 38 —sufficiency of judgment. A judgment rendered against the defendant for the support and maintenance of a bastard child, held not objectionable as attempting to bind the sureties to pay whatever judgment might be rendered against defendant, where the judgment was rendered against the defendant only.


text:
    Iva Dallas, Appellee, v. East St. Louis & Suburban Railway Company, Appellant.
    (Not to Tbe reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. William E. Hadlet, Judge, presiding. Heard in this court at the March term, 19Í4.
    Reversed and remanded.
    Opinion filed July 28, 1914.
    Statement of the Case.
    Action by Iva Dallas against East St. Louis & Suburban Railway Company to recover for personal injuries received by plaintiff by falling off one of defendant’s cars at a street intersection. The declaration alleged that plaintiff was a passenger on one of defendant’s cars, that she went to the rear platform of the car with the intention of alighting at a certain street intersection and that while she was waiting for the car to come to a stop the car was suddenly started forward with a jerk causing her to fall off the car. The plea of the general issue was filed. Upon the trial plaintiff obtained judgment for three thousand dollars. To reverse the judgment, defendant appeals.
    Abstract of the Decision.
    Carriers, § 476*—when evidence insufficient to sustain recovery for injury resulting from sudden jerk of car. In an action against a street railroad company to recover for personal injuries received by plaintiff by falling off one of defendant’s cars at a street intersection, where it was alleged that the plaintiff was standing on the rear platform waiting for the car to stop to enable her to alight ánd that the defendant negligently started its car forward with a jerk so that she fell off the car, held that a verdict for plaintiff was not sustained by the evidence, it not appearing from the evidence other than the testimony of plaintiff that the car was started with a jerk, and her testimony was contradicted by the testimony of the conductor, motorman and several passengers on the car, and several witnesses testified that the plaintiff did not stop on the rear platform but walked right off the car while it was in motion.
    Williamson, Burroughs & Ryder, for appellant.
    Geers & Geers, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.


text:
    W. C. Burk, Appellant, v. Matt Faber, Appellee.
    1. Chattel mortgages, § 203

      —when allowing property to remain in possession of mortgagor after maturity is fraudulent. Where a chattel mortgagee fails to take possession of the mortgaged chattels within a reasonable time after the maturity of the mortgage and allows them to remain in the possession of the mortgagor, such is a fraud as to creditors and purchasers and cannot be explained.
    2. Chattel mortgages, § 203*—when mortgagee’s delay in taking possession unreasonable. Where a chattel mortgagee did not attempt to take possession of the mortgaged property until the second day after the mortgage matured, held that the delay was unreasonable and that the rights of the mortgagee were thereby postponed to the rights and liens of execution creditors of the mortgagor, where it appeared that the mortgagee and mortgagor lived only three or four miles apart.
    3. Trial, § 298

      —right to refuse proposition of law embodied in others. A proposition of law may be properly refused when the same principal is embodied in others which were held to be the law.
    Appeal from the Circuit Court of Effingham county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed July 28, 1914.
    W. S. Holmes, for appellant.
    H. S. Parker, 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 McBride

delivered the opinion of the court.

The appellant brought an action of replevin in the Circuit Court of Effingham County to recover from appellee, the sheriff of said county, the goods and chattels described in the declaration. A jury was waived and trial had by the judge of the Circuit Court, who determined that plaintiff was not entitled to recover the goods and chattels mentioned, and from this judgment the plaintiff prosecutes his appeal.

It appears from the record in this case that on September 9, 1912, William Dunn was indebted to Jacob Todt in the amount of $1,000, and on that date made and delivered to said Todt his note, with appellant W. C. Burk and S. M. Dye as sureties thereon for the said William Dunn; said note by its terms was to mature one year after date thereof; that on September 11, 1912, the said Dunn executed and delivered to W. C. Burk and S." M. Dye a chattel mortgage upon the property in question to indemnify the said parties as sureties for the said Dunn upon said note. It was provided by said mortgage that until default be made by said mortgagor in the payment of .said note, it shall be lawful for him to retain possession of the said goods and chattels and enjoy the same; and said mortgage also contained the usual provision with reference to taking possession in the case of a levy or attempted levy of the property described therein.

It further appears from the evidence that on September 8, 1913, A. C. Grays and A. T. Collison obtained two judgments in the Circuit Court of Effing-ham county by confession against William Dunn et al., one for the sum of $122.76 and the other for the sum of $135.57 and costs, and that on September 9, 1913, executions were issued thereon and delivered to the sheriff; that on the ninth of September, 1913, A. C. Grays and A. T. Collison obtained another judgment against William Dunn et al. for the sum of $206.15 and costs, and caused an execution to be issued thereon and delivered to the sheriff on September 10, 1913.

It further appears from the evidence that the said William Dunn failed to pay the note upon which appellant and Dye were sureties, at its maturity, and that negotiations were going on between Dunn and the said sureties to renew said mortgage, but it was not renewed and the said Burk and Dye did not take possession of the property described in said mortgage until the morning of September 11, 1913; that on September 30,1913, the appellee, as sheriff of said county, levied upon the goods and chattels described in said mortgage, whereupon the appellant .instituted a suit of replevin to recover the possession of such goods and chattels.

The plaintiff filed the usual declaration in a suit of replevin. Defendant filed a plea justifying the taking of such property under the executions above referred to. The court found the issues for the defendant and adjudged the costs against the plaintiff. The appellant claimed that he was entitled to this property because he obtained possession thereof without unreasonable delay after the maturity of the mortgage, and that even if there was unreasonable delay that he obtained the possession before the sheriff made a levy under his executions, and that by reason thereof the mortgagee, appellant, was prior in his rights.

The evidence shows that the mortgage matured on September 9, 1913; that the judgments were rendered, some on the eighth and some on the ninth of September, and the executions issued and placed in the hands of the sheriff, some of them on the ninth and some on the tenth of September, 1913, and that levies were made on September 30, 1913.

It further appears that the appellant lived only about three or four miles from William Dunn, the mortgagor, and that appellant did not take or attempt to take possession of the mortgaged property until the second day after the mortgage matured. The Circuit Court held that the delay in taking possession of the property was unreasonable and that the rights of the appellant were thereby postponed to the rights and liens of the execution creditors aforesaid; that it was a fraud per se, and not to be explained, to permit the property to remain in the hands of the mortgagor until the second day when no valid reason is shown why possession should not have been taken at once after default. Counsel for appellant claims that as the mortgagee obtained possession of the property before the sheriff levied, that his rights were preserved, and contends that he is sustained in this position by the decision of the Supreme Court in the case of Pike v. Colvin, 67 Ill. 227; that appellee would be compelled to collect his debt by garnisheeing the balance that would remain in the hands of the mortgagee after the payment of such mortgage. We do not understand the case referred to as sustaining the contention of counsel. In that case the levy was made before the maturity of the last note and while the property was properly in the hands of the mortgagor, under the terms of the mortgage. It would be an entirely different proposition if the grantee permitted his mortgage to become void by reason of not taking possession upon the maturity of the mortgage, and in accordance with its terms. Where the mortgagor is allowed to retain possession of chattels after the maturity of such mortgage, such possession will be considered fraudulent as to creditors and purchasers of the mortgagor. Jones v. Noel, 139 Ill. 377.

“Where parties live in the same town or county, one day after default would be a reasonable time within which to take possession of the property so situated, and an agent should be at hand for such purpose.” Reed v. Eames, 19 Ill. 594.

A chattel mortgage ceases to be a lien as to third parties if the mortgagee upon default does not take possession. Slade v. Kurrus, 133 Ill. App. 99. It is clearly the law that if the mortgagee fails to take possession of the mortgaged property within a reasonable time after the maturity of the mortgage, and it is allowed to remain in the possession of the mortgagor, that such is a fraud as to creditors and purchasers, and such a fraud as cannot be explained. The Circuit Court determined that the time that the mortgagee permitted this property to remain in the hands of the mortgagor, after the maturity of the mortgage, and before attempting to take possession of it, was unreasonable and rendered the mortgage void as to the creditors in said executions, and we see no reason for disturbing this finding of the trial court.

It is contended by counsel for appellant that the court erred in refusing appellant’s second, fourth, fifth and sixth propositions of law asked by the plaintiff, and contends that the second proposition submitted, that the mortgagee had a reasonable time to take possession of the property after the maturity of the mortgage, was erroneously refused. In this counsel is mistaken, as that proposition was included in the third, which was held by the trial judge to be the law; but the second, fourth, fifth and sixth propositions of law embodied the princinples herein contended for by appellant to be the law, and we think the Circuit Court properly refused all of said propositions for the reasons hereinabove set forth. During the time that the sheriff, appellee, held the executions and before the mortgagee took possession of the property, the mortgage became void, being fraudulent as to creditors, and immediately upon its becoming void the rights of the creditors then took precedence over those of the mortgagee and it became the duty of the sheriff to levy the executions upon the property of William Dunn, and, if necessary, to take this property from any one who held it unlawfully as against the creditors.

We are of the opinion that the findings and holdings of the Circuit Court are in conformity with the decisions of the Supreme Court of this State and that no reversible error was committed in the trial of this case, and the judgment of the lower court is affirmed.

Judgment affirmed.


text:
    John T. Smith for use of L. F. Karle, Appellee, v. Vandalia Railroad Company, Appellant.
    1. Parties, § 13

      —effect of suit in the name of one for the use of another. Where a suit is brought in the name of one person “for the use” of another, the former is the plaintiff, and the words, “for the use, etc.,” are surplusage, having no effect upon the suit and are of no concern to the defendant.
    2. Appeal and error, § 1231*—■when splitting cause of action cannot he complained of. The fact that plaintiff split his demands by bringing suit for a less sum than was actually due cannot be complained of by the defendant on appeal from the judgment recovered against him, since he is entitled to set up the judgment in bar oí any subsequent suit to recover the balance of the demand.
    3. Pasties, § 43

      —when mistake in name of plaintiff may he amended. Where after a verdict has been rendered an error is discovered in the middle initial of plaintiff’s name, the court may, upon motion of plaintiff, before final judgment permit the amendment of the summons and pleadings so as to show that the suit was brought in his true name.
    Appeal from the City Court of Bast St. Louis; the Hon. Robert H. Flannigan, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed July 28, 1914.
    Whitnel & Browning, for appellant; Fordyce, Holliday & White, of counsel.
    Dah McGlynn, for appellee.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

This is an appeal from a judgment rendered by the City Court of East St. Louis. The record in this case discloses that John T. Smith was engag’ed at work for the appellant during the months of November and December, 1912, and that there was due him from the Company as wages $77 and a few cents. John T. Smith was indebted to L. F. Karle, who brought suit against J. T. Smith in the name of J. H. Smith before George A. Boyne, a justice of the peace in East St. Louis, and a garnishment was served upon appellant to subject the wages of J. T. Smith to the payment of Karle’s claim; that on December 10, 1912, John T. Smith signed an order drawn on the appellant, Vandalia Railroad Company, in favor of George A. Boyne, justice aforesaid, for $46.45, for the purpose of paying the claim of Karle against John T. Smith. Upon receiving this order Boyne mailed the same to the attorneys of the appellant, but the order was afterwards returned to Boyne and left upon his desk. Karle took the order and had a talk with John T. Smith about it and Smith told him to bring suit against the Company. He said he had done all he could do. Thereupon L. F. Karle brought suit in the name of J. H. Smith for the use of Louis F. Karle against the appellant for $56.45, being the amount of his claim. The only evidence introduced upon the trial of the case with reference to the claim was that of John T. Smith, who said that appellant was indebted to him in the amount of $77, and that at the time of the garnishment it was indebted to the amount of $67; that he gave the order to Justice of the Peace Boyne for the purpose of settling the claim of Karle. At the close of plaintiff’s evidence the defendant asked the court to direct a verdict in its favor, which the court refused to do, and thereupon the defendant refused to offer any further testimony and the trial court, upon the motion of the plaintiff, directed a verdict for the plaintiff for the amount of $56.45. After the verdict had been rendered it was discovered that the true name of the plaintiff was John T. Smith instead of John H. Smith, and thereupon the court, upon the motion of appellee, permitted an amendment of the summons and pleadings so as to show that the suit was in the name of John T. Smith instead of John H. Smith. Judgment was rendered upon this verdict, to reverse which this appeal is prosecuted. It is not denied by appellant in this case but that it was indebted to John T. Smith in the sum of more than $56.45, but contends that this is an effort upon the part of John T. Smith to transfer to Karle a part of the claim and retain a portion of it for himself, and that the effect of it is a splitting of the demand of John T. Smith against appellant, and for that reason this suit cannot be maintained. The idea of counsel for appellant seems to be that this is a suit of Karle, because it is brought in the name of John T. Smith for the use of Karle. As we view the law the fact that the suit is brought in the name of John T. Smith for the use of Karle does not make Karle the plaintiff, but John T. Smith the plaintiff, and the words, “for the use of Karle,” are surplusage and could only control the relations existing between Smith and Karle. The words, “for the use, etc.,” are unnecessary for any purpose other than to protect the interests of the usee against the nominal plaintiff.” Tedrick v. Wells, 152 Ill. 217.

Where a party brings a suit in his own name for the use of another party, the words, “for the use, etc,” are surplusage. He need not name any one as the usee, but if he does it has no effect upon the suit. Schiff v. Supreme Lodge Order Mut. Protection, 64 Ill. App. 341. Where a suit is brought by a plaintiff for the use of another the defendant has no concern with the use. Schiff v. Supreme Lodge Order Mut. Protection, supra.

Again it is insisted by appellant that this is a splitting of appellee’s demands and might result in a multiplicity of suits against the appellant, whereas it could all be recovered in one action. The position of counsel that it would result in a splitting of demands seems to us to be well taken, but we do not agree with them as to the effect of it. It is no concern of the appellant as to how much is included in appellee’s judgment so long as it does not undertake to recover more than is due to him. This action was commenced before a justice of the peace, and under the statute he would have to include all claims existing against appellant at the time the suit was brought. If, however, in a suit brought, less than the whole amount due was claimed or demanded, the fact that he had failed to sue for the whole amount and was taking judgment for less than was actually due could not be complained of by the appellant in that suit. If, however, the appellee should attempt to bring another action against appellant for the balance of his claim or demand, then appellant could very justly and properly invoke the doctrine here contended for and plead the former judgment in bar. Calverley v. Steckler, 126 Ill. App. 586. We do not think that appellant has any right to complain because suit is brought for a less amount than is actually due, and set such fact up as a bar to the action.

It is further contended by counsel for appellant in its reply brief that if appellee’s contention, that this is not a suit by Karle hut is a suit by John T. Smith, is true, then under thé fourth error assigned, this cause should be reversed as the suit was brought in the name of John H. Smith for the use of Karle, and counsel for appellee was permitted to amend the original summons so as to make John T. Smith plaintiff, after the verdict had been returned. We cannot see any objection or reason why the court should not have permitted this amendment under the statutes of this State, both un-der section 1 of chapter 7 (J. & A. ft 300), and section ' 42 of chapter 79. (J. & A. 6903.) The court may, at the request of either party, at any time before final judgment, amend the summons and other papers in the case so as to make the same conform to the true names of the plaintiff and the defendant. We cannot see how appellant is in any manner injured by this amendment or by this judgment. It appears from the evidence, and is not denied, that thé appellant is indebted to John T. Smith for even more than the judgment, and we believe the court ruled properly in directing a judgment against it for the amount sued for.

The judgment of the lower court is affirmed.

Judgment affirmed.