text:
    James T. Conrad, Appellee, v. Springfield Consolidated Railway Company, Appellant.
    1. Ordinances—when observance of, cannot be waived by municipality. An ordinance requiring a traction company to stretch and maintain suitable guard wires along and above its electric cables, represents the exercise by the municipality of its governmental or legislative powers, and in such an ordinance the public is invested with an interest, and the non-observance of such ordinance cannot be waived by such municipality; only legislative action can justify non-observance.

      2. Ordinances—when requiring protection of electric cables not unreasonable. All presumptions are in favor of the reasonableness of such an ordinance; the determination of its unreasonableness is a question of law for the court but a determination adverse to the ordinance would not be justified unless the want of necessity for the requirement in question was clearly made to appear.
    3. Ordinances—when violation of, absolute proof of negligence. If it appears that an injury proximately results from the violation of a valid ordinance, proof of such ordinance and the violation thereof is not only prima facie but absolute proof of negligence.
    4. Verdict—when not excessive. A verdict for $3000 rendered in an action on the case for personal injuries is not excessive where it appears that the plaintiff sustained severe and permanent injuries which have lessened his earning capacity and which are calculated to produce frequent attacks of pain and suffering.
    Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Wilson, Warren & Child, for appellant.
    A. Salzenstfin and T. J. Condon, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

The plaintiff, James T. Conrad, recovered a verdict against the Springfield Consolidated Railway Co., defendant and appellant here, for the sum of $5,000 as damages for personal injuries. Upon the motion for a new trial plaintiff was required to remit $2,000 from the verdict, and having entered such remittitur, the motion for a new trial was overruled and judgment was entered against defendant for $3,000.

The declaration consists of three counts. The first two counts allege that on August 21, 1906, the defendant was operating a street railway on Monroe and Sixth streets in the city of Springfield, by means of electricity conducted through overhead wires; that it had acquired the right to operate said railway from its certain predecessor companies subject to the duty imposed upon said companies by the ordinances of the city of Springfield, the terms and conditions of which ordinances the respective companies had expressly accepted and agreed to; that said ordinances provided that said companies should stretch and maintain suitable guard wires over and above the electric cables and overhead wires, at all points where said railway ran, where other wires belonging to other companies were suspended over and above such electric cables; that on the day aforesaid and for a long space of time prior thereto, the Central Union Telephone Company maintained wires at the intersection of said Sixth and Monroe streets, and thereby it became the duty of the defendant to maintain a suitable guard wire over its cables at said point; that defendant neglected and failed to do so, whereby plaintiff, in the course of his duty as an employe of the telephone company, in stretching and taking down wires of the telephone company crossing over the electric cables of the defendant at said point, while in the exercise of due care and caution for his own safety, by reason of one of the said telephone wires breaking and falling upon the electric cable of defendant, a current of electricity was conveyed into plaintiff and he was thereby injured.

The amended third count alleges that defendant was then operating an electric street railway in said city of Springfield, and that it thereby became and was the duty of defendant to exercise reasonable care to confine the electricity carried in its cables to its own cable and premises, and to prevent the same escaping or coming into contact with the wires of other companies suspended over its said cables at the place aforesaid; that defendant then well knew that the telephone company had for twenty years prior thereto, maintained wires over and above its cable and that thereby it became the duty of defendant to maintain a guard wire above its cable or take some other adequate means, by insulation or otherwise, to prevent its electric current coming in contact with the wires of the telephone company which might break, or in the handling by employes of the telephone company, might slip or fall, or otherwise come in contact with the electric current in its cable; that defendant not regarding its duty in that behalf, did not maintain any guard wires or take any other means to prevent its electric current from escaping and coming into contact with the wires of the telephone company, which might fall or break as aforesaid; that plaintiff, while in the performance of his duty as an employe of the telephone company, in handling and removing its wires crossing those of the defendant, and while in the exercise of due care and caution for his own safety, one of said wires broke and came in contact with the electric current in defendant’s cable and thence into the body of the plaintiff, etc.

On August 21, 1906, the plaintiff was employed as a lineman by the Central Union Telephone Company. He was 36 years of age and had had considerable experience as a lineman and electrician. On that day he was engaged in taking down and putting up telephone wires, and at the time of his injury was standing on a telephone pole at the corner of Sixth and Monroe streets in the city of Springfield, engaged in removing an old telephone wire, which broke while he was handling the same, and was thus caused to fall upon a wire carrying a high voltage of electricity which was thereby communicated to his person, causing the injury complained of. The evidence tends to show that the pole upon which plaintiff was then standing was about sixty-five feet in height and was equipped with eight cross arms upon which a large number of wires were fastened; that the lowest cross-arm near which plaintiff was then standing was about forty feet from the ground; that an uninsulated trolley wire of the defendant was suspended over its track about twenty feet above the ground and below the wires of the telephone company; that on the east and west sides of Sixth street about thirty-five feet from the ground and below the telephone wires, were suspended lines of insulated electric light and power wires. Plaintiff testified that in doing the work in hand it was necessary for him to he right among the telephone wires suspended upon the pole and the messenger wires upon which the cables were hung; that just before he was injured he got hold of an old telephone wire for the purpose of pulling it out, and as he did so it broke off and fell down and wrapped around the trolley wire and looped back up and charged the messenger wire which was grounded, thus communicating a current of electricity to and through his person.

There was introduced in evidence an ordinance of the city of Springfield, passed January 17, 1890, approved January 20, 1890, granting to the Citizens Street Railway Company, a predecessor of the defendant, the right to construct and operate an electric railway over certain streets in said city, including Sixth and Monroe streets. There was also introduced in evidence an acceptance of said ordinance by the Citizens Street Railway Co., under date of February 20, 1890. Section 7 of the ordinance in question provides, as follows:

‘ ‘ That it is the duty of said company to stretch and maintain a suitable guard wire along and above its electric cables and over wires at all points within the city where other wires belonging to other companies are suspended over or above said electric cables; the same may be extended along the whole line of said railway when required by the council. And in case of wilful violation of this section said company shall be subject to a fine of not exceeding two hundred dollars for every day.”

It is conceded by appellant that it had failed to comply with the provisions of said ordinance with respect to guard wires, and that no such guard wire was stretched and maintained by it over its trolley wire at the place in question.

It is first urged on behalf of appellant that a municipal corporation performs two distinct functions; one, legislative, whereby it may enact ordinances prescribing rules of conduct within its territorial limits, and the other proprietary, whereby it deals with the property rights and interests which it holds in trust for the public; that the ordinance in question, or the section of such ordinance here involved, is properly referable to the function of the municipal corporation in its proprietary capacity and not in its legislative capacity, and that the court, therefore, erred in excluding certain evidence offered by appellant, which it is claimed tended to show that when the ordinance was adopted as a contract between the parties it was supposed that guard wires would afford protection to the public using the streets, but that practical experience in the operation of electric railways had demonstrated that the presence of guard wires was a menace to the safety of the public, and for that reason the parties to the contract had waived the performance of the particular provision relating to guard wires. The record in this case with respect to the the question sought to be raised shows that upon the cross examination of assistant city electrician W. M. Childs, called as a witness on behalf of appellee, counsel for appellant asked the following question: “Now, during the time you were in the city electrician’s office or had anything to do with it, did you ever request the Springfield Railway Company to put up guard wires ? ’ ’ Upon objection thereto by counsel for appellee, counsel for appellant stated to the court: “We propose to show that this condition of this ordinance was waived by the city and that the city never required it to be enforced.”

The trial court held that the public had an interest in the ordinance and that the provisions of the ordinance in that respect could not be waived by mere non-action, and sustained the objection to the question. A like question propounded to the city electrician, J. B. Valentine, was objected to by counsel for appellee and the objection was sustained.

Without entering into an extended discussion of the well-recognized distinction suggested by counsel for appellant between the legislative and proprietary functions of a municipal corporation, we are of opinion that section 7 of the ordinance introduced in evidence should be held to be an act of the municipality, legislative in its character. In Dillon on Municipal Corporations, 4 Ed., Vol. 1, sec 66, cited by appellant, it is said with reference to such corporations: “These, as ordinarily constituted possess a double character; the one governmental, legislative or public; the other, in a sense, proprietary or private. * * * In its governmental or public character, the corporation is made, by the state, one of its instruments or the local depository of certain limited and prescribed political powers, to be exercised for the public good on behalf of the state rather than for itself. * * * But in its proprietary or private character the theory is that the powers are supposed not to be conferred, primarily or chiefly, from considerations connected with government or the state at large, but for the private advantage of the compact community which is incorporated as a distinct legal personality or corporate individual.”

It requires no argument to determine that the provision of the ordinance in question requiring the appellant to stretch and maintain suitable guard wires along and above its electric cables was adopted by the municipality in its governmental or legislative cap-city, and in the discharge of a duty imposed upon it for the benefit and safety of the public generally. An ordinance containing a similar provision, was held, in Commonwealth Electric Co. v. Rose, 214 Ill. 545, to have been adopted by the city of Chicago in its legislative or governmental capacity by virtue of the powers delegated by the state, and to have the force and power of a statute. Appellant and its predecessor accepted the ordinance without qualification, and having availed themselves of the benefits of the same, appellant is estopped from repudiating its condition. Commonwealth Electric Co. v. Rose, supra.

The ordinance having been adopted by the municipality in its legislative capacity may not be nullified, suspended or repealed by it otherwise than by like legislative action. City of Paxton v. Bogardus, 201 Ill. 628; B. & N. Ry. E. & H. Co. v. Bloomington, 123 Ill. App. 639. It would be nothing short of an absurdity to hold that in the absence of a request by an accredited official of the municipality to comply with the provisions of an ordinance, the party bound to comply therewith would be excused from so doing, or that a failure to make such request would operate as a waiver by the municipality of the provisions of the ordinance, or that the failure of a municipality to enforce an ordinance operated to nullify or repeal it. We conclude that the trial court did not err in sustaining the objections to the questions propounded to the witnesses Childs and Valentine.

Whether the ordinance in question was reasonable or unreasonable in respect to the provision with reference to guard wires, was a question of law for the court. All the presumptions are in favor of the reasonableness of the ordinance as a legitimate exercise of police power, and the court would not be justified in holding the ordinance unreasonable unless the want of necessity for the requirement in question as a measure for the public safety was clearly made to appear. The ordinance could not be held to be unreasonable unless it was manifest that the discretion reposed in the municipal authorities had been abused in an arbitrary manner. C., R. I. & P. Ry. Co. v. Steckman, 224 Ill. 500. No such showing was made to the trial court by appellant in the case at bar. The evidence of the witness Pierce as set forth in an affidavit in support of a motion for continuance was only offered by appellant in support of its contention that the ordinance was unreasonable. Upon that issue the evidence was properly excluded from the jury, and appellant is not in a position to urge that the evidence of such witness was competent to go to the jury under the third count of the declaration, which alleged common law negligence.

The fourth instruction given to the jury at the instance of appellee is as follows:

“The court instructs the jury that under the ordinance of the city of Springfield, offered and admitted in evidence in this case, it became and was the duty of the defendant to have guard wires over its trolley wire at all places where such trolley wire was crossed by the wires of other companies and if you believe from the evidence in this case that at Sixth and Monroe streets, where plaintiff was injured, other companies long previous to the day the plaintiff was injured, had wires over defendant’s trolley wire, then it was and became the duty of defendant to have and maintain guard wires at such place; and if you further believe from the evidence that the defendant failed so to do and plaintiff was injured in the manner charged in the first two counts of his declaration, or in either of them, by a wire of the Central Union Telephone Company, which he was then and there attempting to remove, breaking and falling on defendant’s unguarded trolley wire at said place, whereby the current from said trolley wire was transmitted against the person of plaintiff, and plaintiff at and before such injury was using ordinary care and caution for his own safety, then you will find a verdict for the plaintiff.”

It is urged that this instruction is erroneous, in that it states that the duty of the appellant to maintain guard wires is absolute by virtue of the ordinance, and that the jury were thereby advised that the violation of said ordinance constituted in the case at bar, negligence as a matter of law; that at most the court should have instructed the jury that the violation of said ordinance by appellant, constituted merely prima facie evidence of negligence. The duty of appellant to comply with the provisions of the ordinance was absolute and it was not error so to charge the jury. It is commonly said that the violation of a statute or of a city ordinance, where the ordinance is such a one as the city is authorized by its charter or by the statute to adopt, is prima facie evidence of negligence. U. S. Brewing Co. v. Stoltenberg, 211 Ill. 531. Prima facie evidence means evidence which is sufficient to establish the fact unless rebutted, the expression prima facie being used as an antonym of conclusive. The duty of the appellant under the ordinance being absolute proof of the violation of such duty in the case at bar became conclusive evidence of the negligence of appellant, if it appeared from a preponderance of the evidence that the violation of said ordinance was the proximate cause of the injury to appellee. The question of proximate cause was submitted to the jury by the instruction as a question of fact, and the jury were, thereby only authorized to return a verdict for appellee, if, upon the issue of proximate cause presented by the instruction, they found against the appellant.

In Shoninger Co. v. Mann, 219 Ill. 242, it was held that the doctrine of assumed risk rests upon and grows out of the contractual relation which exists between master and servant. The question of assumed risk is not, therefore, involved in this case, and appellant cannot avoid liability upon the ground that appellee assumed the risk.

Whether or not appellee was in the exercise of due care for his own safety immediately before and at the time of his injury was a question of fact for the jury, and we are not prepared to say upon the evidence in the record, that the finding of the jury upon that issue was clearly wrong. While appellant introduced evidence tending to show that a lineman of ordinary experience, before attempting to remove telephone or other wires suspended above a trolley wire should place himself in such a position on the pole upon which he was at work as that his body would not come in contact with other wires which were grounded, appellee testified that he could not avoid contact with such other wires in performing the work he was then engaged in, and that he did not notice the absence of a guard wire above the trolley wire. The evidence of appellee in this respect stands uncontradicted.

Appellant sought to show that the current of electricity which injured appellee was transmitted by an electric light and power wire, and not by appellant’s trolley wire. Appellee testified positively that he saw the broken wire which communicated the current of electricity into his person lying upon the trolley wire at the instant he received the shock. The evidence of the witness Frank Ryan tends to corroborate appellee in this particular. There is also evidence tending to show that the voltage in the electric light and power wire was so great, that if the telephone wire which appellee was handling had come in contact with an uninsulated portion of it, appellee would have been killed almost instantly. Furthermore, the evidence tends to show that the insulation on the electric light and power wire was intact.

It is lastly urged that the damages awarded to appellee are excessive. The evidence tends to show that appellee sustained severe permanent injuries which have lessened his earning capacity, and which are calculated to produce frequent attacks of pain and suffering. We are unable to say that the judgment for $3,000 is disproportionate to the injuries received.

There is no error in the record prejudicial to appellant and the judgment of the Circuit Court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Baume

license: Public Domain

text:
    Gates Strawn et al., Executors, Appellants, v. The Trustees of Jacksonville Female Academy et al., Appellees.
    Appeals and errors—when freehold involved. In a proceeding to construe a will a freehold is involved if the determination of the cause will result in the loss of a freehold by one of the parties in interest.

      Bill in equity. Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the May term, 1908.
    Transferred to Supreme Court.
    Opinion filed November 17, 1908.
    Dent & Jackson, for appellant.
    J. B. Lippincott, Bellatie & Banner and R. W. Mills, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a hill in equity by G-ates Strawn and Edward P. Kirby, executors and trustees under the last will and testament of Phebe G-. Strawn, deceased, appellants, against the legatees and devisees under the will of said deceased, appellees, to obtain a construction of the tenth and twelth clauses of said will and the fourth clause of the codicil to said will, which said several clauses are as follows:

“X

“I give and bequeath to the Trustees of the Jacksonville Female Academy the sum of ten thousand dollars ($10,000), the same to be kept by said trustees as a perpetual fund, and to be loaned upon good real estate security, and only the interest and income of said fund to be used and expended; said income to be used and expended in maintaining a high grade school for the education of young women.

“XII

“I give, devise and bequeath to my executors, hereinafter named as trustees, the north two-thirds (⅔) of the homestead property on which I now reside, and more particularly described as Lot one (1) in Block 17 (17) in the city Addition to the City of Jacksonville. To have and to hold the same upon the trusts following, that is to say:

“First, Upon Trust: To give to my three children, Julius E. Strawn, Gates Strawn and' David Strawn, the use and occupation of said premises as a home, for and during’ their joint lives, and the lives of the survivors or survivor of them, they, the survivors or survivor of them, during said occupation, well and duly paying all taxes and special assessments thereon, and keeping the buildings and other improvements thereon in good repair; and keeping all buildings thereon insured in their fair insurance value, for the benefit of all parties interested therein. In the event my said children or the survivors of them shall be unable to agree in a joint occupation of said premises, then the occupancy thereof shall be given and awarded by my executors to those or that one of my said children who will pay to the other or others the largest sum for the right of such occupancy.

“I expressly will and direct that the words occupation, occupancy and right of occupancy, hereinbefore mentioned shall not include the right to rent said premises except during temporary absence, my intention being only to provide for my said children a home in the house which I erected and have occupied as a home myself.

“Second, Upon Trust: Whenever said real estate shall no longer be occupied as a home by any of my three children above named, either because of the death of the survivor or because of their abandonment of right to the occupancy thereof, then to convey the said premises in fee simple, subject to the conditions and limitations hereinafter contained, to the Trustees of the Jacksonville Female Academy, in Jacksonville, Illinois, to be held, used and enjoyed by the said Trustees as a site for an art gallery and school of art, to be known and designated as “The Strawn Art School and Gallery;” such school and art gallery to be under the management and control of said Trustees as an annex, and to be used in connection with the school known as the Jacksonville Female Academy. The deed of conveyance to said Trustees shall contain a provision or condition that whenever the said premises shall cease, for a period of three (3) consecutive years, to be used as a site for such art school and art gallery, then all the rights of the said Trustees under and by virtue of said deed of conveyance shall cease and determine, and the title to said premises shall thereupon revert to my executors, or the survivor of them, and the said premises shall then he sold by them, or him at public auction, upon such terms as to them or him shall seem best, and the proceeds arising from said sale shall then be divided and distributed by my executors, or the survivor of them, equally, between the Trustees of Illinois College, the Trustees of the Jacksonville Female Academy, the Trustees of the State Street Presbyterian Church in Jacksonville, and the Association for Works of Mercy of the Evangelical Lutheran Church in Illinois; all moneys so paid over to said legatees to be kept and maintained as a perpetual fund, and the interest and income to be used as hereinbefore prescribed for the expenditure of the interest and income of the bequests to said legatees. If neither of my executors be living at the time of such abandonment or surrender of said premises, then the court shall appoint a Trustee to carry into effect this provision of my will.

“IV

“Whereas, in and by my said will and the Twelfth (12th) clause thereof, I did give, devise and bequeath to my executors as Trustees, the north two-thirds (⅔) of my homestead property on which I now reside known and described as Lot One (1) in Block Seventeen (17) in the City Addition to the City of Jacksonville, and I now believe that the whole of said property would be better adapted than a part thereof for the uses and trusts upon which said property was devised to said Trustees, I do now give, devise and bequeath to my executors in said will named, as Trustees, all of my said homestead property, being Lot One (1) in Block Seventeen (17) in the City Addition to the City of Jacksonville, in Morgan County, Illinois, to have and to hold the same upon the same trusts and conditions upon which the said Trustees were to have and to hold the north two-thirds (⅔) of said homestead property, as set forth in the Twelfth (12th) clause of my said will.”

The claim of appellant to the interposition of a court of equity is mainly predicated upon the provisions of a contract entered into between the Trustees of the Jacksonville Female Academy and the Trustees of Illinois College, and a conveyance by the former to the latter made in pursuance of such contract, whereby it is alleged that the said Trustees of the Jacksonville Female Academy had become permanently disabled from complying with the conditions attached by said will to the vesting of the legacy and devise here involved, and that said legacy and devise had lapsed and became a portion of the residuum of the estate of the testatrix. It is manifest that if the devise of the real estate known as the homestead property should be held to have lapsed, it would result in the loss to the Trustees of the Jacksonville Female Academy of a freehold estate. The devise is to appellants as executors and trustees of the will with directions to convey said real estate to the Trustees of the Jacksonville Female Academy, upon the termination of the right of certain children of the testatrix to use and occupy the same during their lives and the life of the survivor and not to sell the same and pay the proceeds to the trustees of said academy.

This court is without jurisdiction to consider and determine the question involved, and the clerk of this court is, therefore, directed to transmit the transcript of the record and files in the case to the clerk of the Supreme Court, to which court this cause is transferred.

Transferred to Supreme Court.


text:
    Willis W. Harmon, Appellee, v. F. W. Niergarth, Appellant.

      Arbitration—what essential to valid award. An award to be valid and binding as such must embrace all matters submitted, unless such matters are withdrawn by agreement of the parties, but this rule cannot be invoked to avoid an award where the finding of the arbitrator upon one of the issues submitted is such that it precludes the necessity of the finding upon another issue.

      Assumpsit. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Frank B. McKennan, for appellant; Welty, Sterling & Whitmore, of counsel.
    A. E. De Mange and R. C. De Mange, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit in assumpsit by appellee, Willis W. Harmon, against the appellant, F. W. Niergarth, which, upon a trial by the court, without a jury, resulted in a finding and judgment against appellant for $382.35.

In the year 1905, appellee, a contractor, constructed for appellant a dwelling house upon the completion of which, the surviving architect, George H. Miller, accepted the same under the contract, and on December 27, 1905, issued' to appellee a final certificate of acceptance and for the payment by appellant to appellee for $1393. Appellant moved into the dwelling house before making the final payment under the architect’s certificate and shortly thereafter discovered some defects therein in material or workmanship and made complaint in respect thereto to the architect Miller. On June 23,1906, Miller notified appellee in writing of the defects existing in the building and informed appellee that the balance of $593 still remaining unpaid on the original contract price, would be withheld until the defects were remedied. Appellee claiming that the defects alleged to exist in the building were due to defective materials furnished by his subcontractor, the Darlington Lumber Co., brought suit against said lumber company to recover the damages alleged to have resulted from the withholding by appellant of the balance of the contract price. The Darlington Lumber Co., being surety for appellee upon his bond to protect appellant under the original contract for construction, and being desirous of settling the suit instituted against it by appellee, and to secure the sum claimed to be due to it from appellee for materials furnished, and appellee desiring to effect a settlement of the matter in controversy, together with appellant, on April 1, 1907, executed a tri-partite agreement. This agreement provided in substance that the defects in the building as therein indicated should be remedied by the Darlington Lumber Co.; that thereafter said Lumber Company should receive out of the balance of the original contract price withheld by appellant, the amount due said Lumber Company from appellee for material furnished for the construction of the house together with reasonable compensation for any defects cured resulting from defective workmanship, the balance, if any, to be paid to appellee; that appellant should retain from said balance the sum of $121.95 as payment for groceries purchased from him by appellee; that a fulfillment of the agreement should stand as a settlement of the suit brought by appellee against the. Lumber Company which suit should be dismissed at the cost of said Lumber Company; that Miller, the architect, should be superintendent of the work of remedying the defects and should determine what defects were due to defective workmanship, the amount to be allowed to the Lumber Company for remedying the defects of workmanship, and whether the repairs made by the Lumber Company overcame the defects and rendered the building complete according to the terms of the original contract.

It was further thereby stipulated and agreed that the decision of Miller upon the matters submitted to his determination should be final and binding upon the respective parties thereto. Subsequent to the execution of this agreement the Lumber Company remedied the defects in the building to the satisfaction of appellant and the architect Miller. On October 15, 1907, Miller, as architect, acting under the tri-party submission to arbitration, made his award, wherein he found in substance that the defects complained of in the construction of the building had been remedied; that out of the balance ($593) due from appellant to appellee under the contract, there should be deducted $121.95 due from appellee to appellant for a grocery account and the remainder be paid by appellant to appellee upon the contract. Upon the refusal of appellant to pay to appellee the amount claimed to be due him under the contract, after deducting the amount due from appellee to the lumber company, for material, appellee brought this suit to recover the same.

It is not controverted in the record that the amount due from appellee to the Lumber Company for material furnished under the contract was $121.90.

It is urged that the court improperly permitted appellee to introduce evidence for the purpose of establishing the amount due him under the contract after deducting the amount due from him to the Lumber Company. If we understand the ground of appellant’s contention in this regard, it is that the amount in question should have been determined by the architect in his award, and that the failure of the architect to determine said amount rendered the award void.

It is undoubtedly the rule that an award to be valid and binding, as such, must embrace all matters submitted, unless such matters are withdrawn by agreement of the parties (Steere v. Brownwell, 113 Ill. 415), but this rule cannot be invoked to avoid an award where the finding of the arbitrator upon one of the issues submitted is such that it precludes the necessity of a finding upon another issue. The submission in the case at bar only required the arbitrator to fix the price to be allowed to and charged by the Lumber Company in and about correcting defects in the building in the event that such defects were due to defective workmanship. If the defects were due to defective materials furnished by the Lumber Company, it was bound to remedy such defects at its own cost and expense. A finding therefore that the defects were due to defective material and not to defective workmanship precluded the necessity of a finding fixing the price to be allowed to and charged by the Lumber Company for correcting such defects.

As the trial was before the court without a jury there was no impropriety in admitting in evidence the statement of the account designated as “Exhibit C,” supported as it was by the testimony of appellee as to its correctness. Appellee was entitled to a recovery upon the award and the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    U. A. Brady et al., Appellees, v. James H. Koontz, Appellant.

      Parties—when joinder improper. The joinder of several parties as plaintiffs is improper if they have no joint interest in the transaction with respect to which the action is brought.
    Action commenced before justice of the peace. Appeal from the County Court of Shelby county; the Hon. Calvin Green, Judge, presiding. Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed November 17, 1908.
    Chafee & Chew, for appellant.
    F. E. Latch, for appellee.
   Mr. Justice Baume

delivered the, opinion of the court.

The appellees, U. A. Brady and Dora Brady, his wife, recovered a verdict and judgment against the appellant, James H. Koontz, in the County Court of Shelby county, for $24.91 for goods, wares and merchandise sold and for labor performed by said appellees to and for appellant.

The judgment must be reversed and the cause remanded,. primarily, because there is no evidence in the case which authorizes a recovery by the appellees jointly. The evidence in the record discloses that appellee, U. A. Brady, at the time of the transactions in question, was engaged in the business of general merchandising, and sold to appellant flour, coffee, corn, knives, plow shares, horse collars and the like, and that appellee, Dora Brady, in addition to performing the ordinary duties of a housewife, did some work in the way of sewing and making women’s garments, and made skirts, waists and dresses for the children of appellant. It is not questioned but that a husband and wife may form a partnership and transact business as .partners, but such relation does not exist merely by virtue of the marriage of the parties, and can only be created by special contract.

No contract partnership relation is shown to have existed between appellees. It is merely claimed on their behalf that each was interested in the work and business of the other by virtue of their relation as husband and wife. In this state of the record it is clear that appellees had no joint interest or right respecting the transactions involved as authorized their joinder as plaintiffs in the action.

The judgment of the County Court wall be reversed and the cause remanded.

Reversed and remanded.


text:
    John Heffernan, Appellee, v. Sylvanus B. Lloyd, Appellant.
    1. Remittitur—when does not cure excessive verdict. A verdict clearly excessive will not always be cured by permitting a remittitur.
    2. Evidence—when threats competent; when not. Evidence of threats made by one party to an altercation against the other are only competent when the party alleged to have made the threats makes some hostile demonstration prior to being attacked by the other party.
    Action in case for personal injuries. Appeal from the Circuit Court of Montgomery county; the Hon, Samuel L. Dwight, Judge, presiding. Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed November 17, 1908.
    Lane & Cooper and Edward C. Knotts, for appellant.
    Jett & Kinder and Graham & Graham, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

Appellee, John Heffernan, recovered a verdict and judgment against appellant, Sylvanus B. Lloyd, in the Circuit Court of Montgomery county for $2000 for damages for personal injuries, alleged to have been sustained as the result of an assault by appellant upon appellee with a spade.

On September 3, 1907, and for some time prior thereto appellant was operating a bridle and tile factory in the village of Farmersville and appellee was employed by appellant in shoveling clay from a pit into the hopper of a machine which ground and moulded it into tile, and was receiving for his services $25 a month and board and lodging in appellant’s family, such board and lodging being estimated to be worth $3.50 per week. In detailing his version of the altercation with appellant, appellee testified that between nine and ten o’clock in the forenoon of September 3, 1907, while he was at work in the pit shoveling clay into the hopper of the tile machine, appellant came there and charged him with having annoyed and quarreled with the engineer and upon his denying the accusation appellant said he had been so informed by some of the boys; that he reiterated his denial and said to appellant “The best thing you can do is to give me my time,” and that he then dropped the spade or struck it in the ground; that appellant picked up the spade and ordered him to get out and then struck him on the side with the blade of the spade breaking the wooden handle; that when appellant struck him he threw up his left hand to protect his head; that after the spade was broken and while appellant was holding a portion of the handle he again ordered him to get out or he would kill him; that he then got out of the pit and started to go to the house to get his clothes when appellant called him back and said “I let my temper get away with me—come back and go to work;” that he told appellant he didn’t want anything to do with him and only wanted his time.

The testimony of appellee is substantially corroborated by the witnesses Irving Clowe and Charles McCarthy.

The evidence tends to show that while the pain which appellee suffered immediately following the assault was comparatively trifling he then consulted a physician who made an examination and discovered a slight red spot over the lateral aspect of the chest midway between the hip bone and the armpit and applied adhesive bandages from the breast-bone to the backbone and over the spot; that for three or four weeks thereafter appellee suffered increasing pain accompanied by sinking spells and hemorrhages from the nose and mouth and was then taken to a hospital and submitted to an operation for an injury to his spleen; that the operation disclosed that the spleen was ruptured on its anterior border and that there was considerable free blood in the abdominal cavity; that appellee was obliged to remain in the hospital eight weeks and a half and that after leaving the hospital he regained his strength very slowly and continued to suffer pain in his breast and stomach; that at the time of the trial of the case in January, 1908, about nine weeks after he was discharged from the hospital, he was very weak, had difficulty in breathing, was able to speak but little above a whisper, could not walk more than two blocks, was troubled with sleeplessness and was unable to do any work. Appellant testified that Peterson, his engineer, had complained to him of the treatment he had received from appellee; that he stepped down to where appellee was spading and said “I wish you would let Mr. Peterson alone, you are making a great deal of trouble with him and you must stop it; you do your work and let Mr. Peterson do his and you will get along better;” that after some further conversation with appellee as to the cause of the trouble between the latter and Peterson, appellee set his spade in the dirt and he reached over and took it; that he told appellee if the latter could not work agreeably he would have to get out and that he raised the spade and ordered appellee to get out; that appellee raised up his left arm in a striking attitude and he gave him a bat on the side; that appellee had made threats against him which had been communicated to him by Peterson.

Thompson, a witness called on behalf of appellant, testified that appellee had assumed an attitude as if to strike appellant just before the later hit appellee with the spade.

It is insisted on behalf of appellant that the verdict is against the manifest weight of the evidence upon three issues of fact involved in the case; first, whether appellant struck appellee in self-defense using no more force than was reasonably necessary; second, whether appellee’s spleen was ruptured by the blow; and third, in the amount of damages awarded to appellee. We are persuaded that the evidence does not warrant a finding that appellant struck appellee in self-defense. Much was made upon the trial of certain threats alleged to have been made by appellee against appellant, which, it is claimed, were communicated to appellant shortly before his altercation with appellee. The evidence does not disclose that such threats, if made and communicated to appellant, had any influence on the latter when he struck appellee. There is not a scintilla of evidence in the record tending to show that either of the parties made any reference whatever to such alleged threats upon the occasion in question. It is not claimed that appellee then said anything indicative of a purpose on his'part to assault appellant, and it is inconceivable that if the threats alleged to have been made prior to that time by appellee against appellant then influenced in any degree the conduct of the latter in striking appellee, appellant would have maintained a sphinxlike silence with reference thereto. That appellee’s spleen was in fact ruptured by the blow with the spade is the only conclusion reasonably deducible from the evidence in the case. The only evidence offered on behalf of appellant which tends to support his contention that appellee’s spleen was not ruptured by the blow is the opinion of two physicians who testified as experts that if appellee’s spleen had been ruptured by the blow death would have ensued almost immediately, and that the theory of appellee was contradicted by their experience and the literature of the profession upon the subject. That appellee’s spleen was ruptured and that that condition was produced by a traumatic injury does not, under the evidence, admit a doubt.

The evidence offered on behalf of appellee excludes any hypothesis upon which a finding might be predicated that his spleen was ruptured by some cause other than the blow inflicted by appellant.

The amount of damages awarded to appellee we regard as excessive under the evidence, even if it be conceded that the jury were warranted in assessing punitive damages. If there was evidence in the record tending to show that appellee’s physical condition at the time of the trial was, or was likely to be, permanent, or would so continue indefinitely, the verdict and judgment for $2000 might, with propriety, be sustained, but in the absence of any such evidence, it is clearly excessive and in this case, even if the record was otherwise free from error, we should hesitate to attempt a correction in that regard by requiring a remittitur.

It is urged that the court erred in not permitting appellant to state what threats against him were communicated to him as having been made by appellee a short time before the difficulty. Evidence of threats made by one party to an altercation against the other are only competent when the party alleged to have made the threats makes some hostile demonstration prior to being attacked by the other party. Cummins v. Crawford, 88 Ill. 312; Forbes v. Snyder, 94 Ill. 374. The only evidence in the case which offered any pretense to appellant to prove that appellee had threatened him with personal violence was the evidence of appellant and the witness Thompson tending to show that appellee assumed an attitude as if to strike appellant with his fist before appellant struck appellee with the spade. The court permitted appellant to testify that alleged threats against him by appellee had been communicated to him prior to the altercation, but refused to permit appellant to state the character of the alleged threats which had been communicated to him. The character of the alleged threats was fully shown by the testimony of other witnesses, but if evidence of alleged threats was competent it was proper for appellant to state what threats had been communicated to him. Where evidence of alleged threats is competent the character of such threats as communicated to the party acting with reference thereto should be permitted to be shown for the purpose of enabling the jury to determine the conduct of the party as influenced by such threats.

Appellant’s criticism on the rulings of the court upon the instructions are such as can be readily obviated upon another trial of the case and do not require consideration in detail.

The judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


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    Fred B. Patchin, Appellee, v. Lewis Crossland et al., Appellants.
    1. Chattel mortgages—when unrecorded, valid. An unrecorded chattel mortgage is valid as between the parties and likewise as between the mortgagee and one unlawfully taking possession from the mortgagor.
    2. Chattel mortgages—when parol evidence not competent to aid. In the absence of a latent ambiguity in the description of the property mentioned in a chattel mortgage, parol evidence is not admissible for the purpose of showing that other property not answering such description was intended to be included in such mortgage.
    3. Verdict—when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence unless clearly and manifestly so.
    4. Instructions—when containing abstract proposition of law will not reverse. An instruction which contains a correct abstract proposition of law will not reverse unless misleading.
    Replevin. Appeal from the Circuit Court of Hancock county; the Hon. George W. Thompson, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    S. L. McCrory and William H. Hartzell, for appellants.
    Edwin S. Coombs and Apollos W. O ’Harra, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit in replevin by Fred B. Patchin, appellee, against Lewis Crossland and Albert Naegelin, appellants, to recover possession of one sorrel horse, about eleven years of age, blind in one eye, having solid light sorrel color, and one chestnut sorrel mare about twelve years of age, having a white left hind foot, with gray strip in face. A trial in the circuit court of Hancock county resulted in a verdict and judgment in favor of appellee.

On April 9, 1906, one F. A. Bachman purchased of appellee two horses answering the description of the horses in controversy, and in payment therefor executed to appellee a note for $208, payable January 1, 1907, and to secure the payment of said note, also executed a chattel mortgage upon said horses by the same description. On April 13, 1906, the said Bachman and wife gave to the Basco Bank, conducted by appellants and others, as partners, their note for $640 payable January 1, 1907, and to secure the payment of said note executed their chattel mortgage covering certain horses, as follows: “One span of gray mares, eight and nine years old, respectively, in foal, weight about twenty-eight hundred pounds; one bay horse nine years old, weight about eleven hundred pounds, white streak in face; one black mare eight years old, weight about eleven hundred pounds, in foal; one bay team (one mare, one horse) four and five years old, respectively, weight about twenty-eight hundred pounds; one brown mare seven years old, in foal. ’’

On June 20, 1906, for some reason not disclosed by the evidence, the bank determined to foreclose its mortgage, and Bachman, in order to save the expense of such foreclosure, was induced to execute to the bank a hill of sale of the property therein described, and by the like description. Upon the same day appellants acting for the hank went to the home of Bachman for the purpose of taking possession of the property described in the bill of sale and there took possession of the two horses described in the chattel mortgage to appellee. On the day following, appellee filed his chattel mortgage for record and thereafter instituted this suit in replevin, claiming the horses in controversy under and by virtue of his said mortgage.

Appellants acting for the bank assert their right to the possession of the property upon two grounds: First, that Bachman in fact intended that the two horses in question should be included in the chattel mortgage and bill of sale to the bank, and were so included therein, although improperly described; and second, that Bachman voluntarily surrendered the said horses to appellants under the bill of sale in payment of his indebtedness to the bank secured by the chattel mortgage.

The chattel mortgage of appellee as between himself and the mortgagor, Bachman, constituted a valid lien upon the property therein described, although it was not filed for record, but it had no validity as against a third party asserting a rightful claim thereto through or under the mortgagor. The mortgage being valid as between appellee and Bachman it was likewise valid as between appellee and one taking the property from Bachman unlawfully.

There is no latent ambiguity in the description of the property mentioned in the chattel mortgage and bill of sale given by Bachman to the bank, and parol evidence was not admissible for the purpose of showing that other property not answering such description was intended to be included in said mortgage and bill of sale. Hutton v. Arnett, 51 Ill. 198.

Upon the issue as to whether or not Bachman voluntarily surrendered the property to appellants under the bill of sale in payment of his indebtedness to the bank, the evidence is sharply conflicting. While a consideration of such evidence as it appears in the record inclines us to the conclusion that it would better support a verdict in favor of appellants, we are not prepared to hold that the verdict as returned is so manifestly against the weight of the evidence as to justify us in setting it aside. Bachman and his wife both testified that they informed appellants that the horses in question were mortgaged to appellee, and that appellants could not take them, while several persons called as witnesses on behalf of appellants testified that Bach-man, in answer to inquiries as to whether the horses in question were to be taken with the other property described in the bill of sale, said that they were, and that he turned them over to appellants to be so taken.

The first, second and third instructions given at the instance of appellee informed the jury in varying phraseology that if the two horses in question were not included in the chattel mortgage and bill of sale given by Bachman to the bank, and were taken by appellants from the possession of Bachman without his consent and against his will, that then the failure of appellee to file his mortgage for record prior to the taking of said horses by appellants would not affect the right of appellee to take said horses under his mortgage.

It is urged in criticism of these instructions that they ignore the right of appellants to take said horses under the mortgage and bill of sale to the bank, if it was the intention of Bachman and the bank that said horses should be described and included therein. What we have heretofore said as to the admissibility of parol evidence offered for the purpose of showing that other property not answering the description of the property embraced in the chattel mortgage and bill of sale, was intended to be included therein, is a sufficient answer to the objection urged against said instructions. The fact that the fifth and sixth instructions given on behalf of appellee made reference to the intention of Bachman and the bank that said horses. should be included in the mortgage and bill of sale cannot avail appellants anything because said instructions stated the law more favorably for appellants in that respect than they were entitled to.

The reference in the second instruction to the undisputed fact that the chattel mortgage to appellee was given by Bachman to secure the payment of the purchase price of the horses in question did not in any way prejudice appellants. The instruction did not suggest that appellee acquired any superior right under his chattel mortgage by virtue of the fact that it was given to secure the payment of the purchase price of said horses.

The fact that the bill of sale from Bachman to the bank was a transaction intended to operate as a payment of the note to the bank secured by a chattel mortgage covering the same property was shown by the evidence offered on behalf of appellants, and a mere reference to such fact in the seventh instruction given at the instance of appellee cannot be complained of by appellants. The right which the bank asserted to the property was acquired by virtue of the bill of sale, and appellants were not authorized to take any property other than that described, in the bill of sale or voluntarily turned over to them by Bachman as being embraced within its terms. The property described in the bill of sale having been given by Bachman and accepted by the bank, in full payment of the indebtedness to the bank, it follows that any property other than that covered by the bill of sale turned over by Bachman to appellant, was so turned over without any consideration. "What we have here said answers the objections urged to the eighth and ninth instructions given at the instance of appellee.

It is conceded that the twelfth instruction given on behalf of appellee states a correct principle of law, but it is urged that because it is abstract in form and ignores the unexpressed intention of Bachman and the bank, as to what property should be described in the mortgage and bill of sale, it operated to mislead the jury. The unexpressed intention of said parties in the respect above indicated had no proper place in the case, and the instruction could not, therefore, have misled the jury.

The modification by the court of appellant’s fifth instruction was in consonance with the views heretofore expressed by us and was proper. The modification by the court of appellants’ eighth instruction is admitted by appellants to have made it conform to their theory of the case and they cannot, therefore, complain of such modification.

There is no error in the record prejudical to appellants and the judgment of the Circuit Court will be affirmed. Affirmed.


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    Joseph H. Ebbing, Appellee, v. Springfield Boiler & Manufacturing Company, Appellant.
    Master and servant—when latter cannot recover. A servant who having a discretion to adopt his own methods of doing work, wantonly, knowing and appreciating the relative dangers of both, elects to adopt the more dangerous method, does so at his peril and cannot recover for an injury resulting from his own conduct in that regard.
    Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1907.
    Reversed, with finding of fact.
    Opinion filed November 17, 1908.
    Patton & Patton, for appellant.
    William A. Northcott, Alonzo Hoff and Walter A. Orr, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

Joseph H. Ebbing brought his action on the case against the Springfield Boiler & Manufacturing Co., to recover damages for personal injuries alleged to have been sustained through the negligence of defendant and recovered a verdict and judgment in the Circuit Court of Sangamon county for $6,590. The defendant appealed.

The case was submitted to the jury upon the amended first count and the fourth and fifth counts of the declaration. The amended first count charges that appellee was employed by appellant as a boiler maker and that it was the duty of appellant to exercise reasonable care to provide appellee with a reasonably safe place in which to work; that appellant failed in the performance of said duty and subjected appellee to extraordinary risk and hazard, in this, that a foreman and vice principal of appellant ordered appellee to remove a certain wire cable from an iron girder, upon which said girder was an iron track, upon which track there was operated a certain iron crane;that appellee did not know the unsafe character of said place of work, which was known, or by the exercise of ordinary care could have been known to appellant; that while appellee was then and there so at work, by the direction aforesaid, and while exercising due care for his own safety, and not thereby assuming the risk, the said crane with great force and violence ran over and upon the leg of appellee, etc.

The fourth count alleges that appellee was directed by the foreman of appellant to go from his work of boiler making, to and upon said iron girder and track, and to remove said wire cable therefrom; that appellee was then and there unfamiliar with the state and condition of said girder and iron track over which said crane ran, and was unfamiliar with and had no knowledge of the manner in which said crane was used and operated by appellant and its servants, not fellow servants of appellee; that appellee was then and there carelessly and negligently directed by said foreman or superintendent to go to said place of work, which said place of work was extremely dangerous by reason of the operation of said crane upon and over said track upon the said iron girder, all of which the appellant well knew or could have known by the exercise of reasonable care in that behalf; that said iron crane was operated by a certain engine under the control of appellant, and it was then and there the duty of appellant, through or by its said foreman or superintendent, to have notified the engineer of said crane, that appellee was so at work upon said iron girder and track, and to have ordered said engineer to stop said crane from running over and upon said track upon said iron girder while appellee was so then and there at work; that in obedience to said order of the foreman appellee then and there climbed upon said iron girder and began to remove said cable, appellee not thereby assuming the risk thereof, and then and there exercising all due care and caution for his own safety in the performance of said work; that appellee while he was so at work then and there, and by reason of the negligence of the said foreman or superintendent in failing to notify said engineer to stop the running and operation of said crane, the said crane then and there, with great force and violence, ran against and over the leg of appellee, etc.

The fifth count alleges the same facts, and avers that it was then and there the duty of appellant’s foreman to have stopped the running of said crane upon said track while appellee was engaged in removing said wire cable therefrom, and further avers a breach of said duty.

The facts disclosed by the evidence are substantially as follows: The main boiler shop of appellant is divided into three sections or aisles by two rows of steel columns running east and west, making a wide central aisle and two narrower aisles, one to the north of the north row of posts and one to the south of the south row. The north aisle is about forty feet in width and from 150 to 200 feet in length. Supported on the row of steel columns, about twenty feet from the ground is a steel girder about two feet in height, consisting at the top and bottom of V shaped pieces riveted together and connected by steel slats running transversely from the opposite sides. Upon the top of this girder, which is about a foot in width, is a steel rail, and on the north wall of the shop is a similar girder and rail. The crane here involved is a steel structure about forty feet in length, spanning from one girder to the other and at each end of the span are wheels whereby the crane is moved east and west upon the track, consisting of the girders and rails as described. The crane is operated by electricity by a crane man who sits in a chair on the north end of the span and on the east side of it, and is used for lifting and carrying heavy boiler material from one part of the shop to another within the aisle where it operates. In the center aisle of the shop a crane similar in construction but much larger is operated upon girders and tracks fastened to the north and south row of columns, about twelve or fifteen feet above the girder supporting the crane in question.

On October 13, 1906, appellee was employed in packing machinery under the direction of Sprinkel as foreman, and continued at that work until October 15th, when he was directed by Sprinkel to take down a wire cable which was hung on blocks which were wedged beneath the top of the girder which supported the south rail of the crane track. For the purpose of doing this work appellee climbed upon the girder by means of a ladder fixed to one of the upright steel columns, which ladder was provided for the use of the employe operating the crane in reaching the same. Appellee then walked upon the girder toward the west end of the shop to the place where he was required to begin work, and there facing the east he put his right leg over the top of the girder and rail and standing with his left foot on the lower flange of the girder he stooped over and proceeded with his work. He had thus worked for about an hour, moving toward the east as he knocked out the several blocks which held the cable, when the crane was moved westward upon its track and the wheels ran over his right leg inflicting the injury complained of.

Appellee testified that when he was directed by Sprinkel to do the work he went in search of a ladder to use for that purpose; that the only ladder long-enough to reach the girder was then in use; that he reported to Sprinkel that he could not get a ladder and inquired how he should get up to do the work, and what tools he would require; that Sprinkel told him to use the crane man’s ladder and get up on the girder and do the work there; that the crane was then standing-on the track near the crane man’s ladder; that when Sprinkel told him to get up on the girder, he (Sprinkel) said to him: “As you go up look out for the crane,” or “You get up there, look out for the crane; it is standing right there by the ladder; ’ ’ that Sprinkel then walked away to talk with the men on the floor of the shop who were engaged in handling the tongs used for the purpose of grappling the material which was to be moved by the crane; that the crane was then moved to the east end of the shop where Sprinkel followed it; that while he was at work on the girder, as before stated, he looked toward the crane several times and on each occasion it was stationary at the east end of the shop, a distance of about 140 feet from where he was working; that in doing the work required he necessarily, had to keep his head down to see the wire cable; that there was considerable noise in the shop occasioned by the operation of pneumatic hammers, the riveting of boilers and the operation of the large crane in the center aisle of the shop, and there was some smoke rising from several coke stoves in which coal was then being burned; that by raising his head at any time while he was working he could have seen the crane if it was coming toward him; and that if he' had seen the crane coming he could have climbed down on to the braces of the girder and gotten out of the way of the crane.

Sprinkel testified that appellee had to go up on the girder in some shape to properly do the work; that he directed appellee to go up there, but did not remember whether he told him to go on top of the girder or to go up on the girder; that the way in which appellee did the work was the quickest way to do it, and the way which almost every one would have selected; that when he directed appellee to do the work he told him “If you get on top in the road of the crane where it is liable to run over you, look out for it;” that he did not see appellee after he directed him to do the work until the accident happened, and that he did not instruct the crane man not to operate the crane over the portion of the track where appellee was at work. The evidence discloses that the crane man, Heinen, had no notice or knowledge that appellee was working upon the girder.

In the view we are constrained to take of this case it will only he necessary to consider and determine the question whether or not appellee was, under the evidence in the record, in the exercise of due care for his own safety at the time he was injured. The averments in the several counts of the declaration that appellee did not know the unsafe character of the place of work, that he was unfamiliar with the state and condition of the girder, and that he had no knowledge of the manner in which the crane was used and operated, are wholly unsupported by any evidence in the record. On the contrary, it is conclusively established by the evidence that he was thoroughly familiar with the purposes for which the crane was used and with the manner of its operation upon the track, the south rail of which was supported by the girder in question.

At the time of his injury appellee was 23 years of age. Previous to his employment by appellant he had worked for two years and a half in a large boiler shop in Peoria, where a similiar crane was in use, and had frequently observed the manner in which it was used and operated. He was employed by appellant in October 1905, and worked in the shop while the machinery was being installed, and from May 1906, when the cranes were put in operation, until his injury in October following, appellee worked in the shop, saw the cranes in operation daily engaged in moving boilers which he had assisted in constructing.

It is not claimed on behalf of appellee that appellant’s foreman, Sprinkel, gave him directions to assume the precise position upon the girder, which appellee found it most convenient to assume while doing the work, or that Sprinkel said anything which would justify appellee in assuming that the crane would not be permitted to run while he was doing the work, or that any warning would be given him when the crane was about to be operated. Assuming that Sprinkel directed appellee to go upon the girder to do the work, the warning given by Sprinkel to appellee in the. Ianguage testified to by the latter, viz., “As you go up look out for the crane,” or “You get up there, look out for the crane, it is standing right there by the ladder, ’ ’ clearly shows that appellee had no reason to suppose that the crane would not be permitted to run while he was at work, or. that any further warning would be given him, but rather that appellee must look out for the crane while he was at work. The contention on behalf of appellee that the warning only related to the care to be exercised by appellee, with reference to the crane, while he was climbing the ladder, and while the crane was standing upon the track in close proximity to the ladder, is manifestly unreasonable. The position of the crane at that time was as patent to appellee as it was to Sprinkel, and appellee must have known that no danger was to be apprehended from the crane while it thus remained stationary upon the track.. That appellee understood that the warning applied to the danger to be apprehended from the movement of the crane, while he was at work, is obvious from the fact that he repeatedly looked at the crane, after it had moved to the east end of the shop, for the purpose of observing its location. The position he voluntarily assumed upon the girder required him to keep his head down while knocking out the wedges, but even in that position he was at liberty to raise his head at any time» and by his own admission, he could, by so doing, have seen the crane approaching and avoided injury by removing his right leg and getting down upon the lower portion of the girder. Furthermore, the position which he voluntarily assumed was manifestly dangerous and unnecessary in the performance of the work required of him. He could have done the work safely by sitting upon the lower portion of the girder. It is elementary that an employe, who, having the discretion to adopt his own methods of doing work, wantonly, Imowing and appreciating the relative dangers of both, elects to adopt the more dangerous method, does so at his peril, and cannot recover for an injury resulting from his conduct in that regard. Illinois Steel Co. v. McNulty, 105 Ill. App. 594. Leighton & Howard Steel Co. v. Snell, 217 Ill. 152, relied upon by appellee is clearly distinguishable from the case at bar. In the Snell case the evidence disclosed that the injured servant was inexperienced and that his superior was present while he was attempting to execute the order.

The judgment of the Circuit Court will be reversed, with a finding of fact to be incorporated in the judgment.

Reversed with finding of fact.

Finding of fact: We find as an ultimate fact that appellee was guilty of negligence which contributed ' to his injury.


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    Albert Rendahl, Appellee, v. Patrick Walsh, Appellant.
    1. Verdict—when not set aside as against the evidence. A verdict will Act be set aside on review as against the evidence unless clearly and manifestly so.
    2. Witness—when wife not incompetent. A wife who sues as next friend is not incompetent merely because her husband has given a bond for costs in the case.
    3. Imputable negligence—when does not bar recovery. A minor having established a right to recovery will not be barrred therefrom by reason of the negligence of its parents.
    4. Appeals and errors—when abstract justifies affirmance. An abstract which literally copies the evidence is not a compliance with the rule and justifies an affirmance.
    Action in case for personal injuries. Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Boyd & Clark and F. M. & H. I. Green, for appellant.

      Ray & Dobbins, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit hy appellee, Albert Eendahl, an infant of the age of four years, by Margaret Eendahl his next friend, to recover damages for a personal injury alleged to have been sustained through the negligence of appellant in permitting his mule to trespass upon the premises occupied by the father of appellee, as tenant of the appellant. The injury, which consisted of the breaking of appellee’s leg, is alleged to have resulted from a kick by said mule. Upon a trial by jury there was a verdict and judgment against appellant for $200.

The evidence tends to show that the barn yard in which appellee was playing at the time of his injury, and which his father had leased from appellant, was separated from appellant’s field by a fence and gate; that shortly before appellee was injured appellant drove in a buggy from his field to said barn yard through the gate and permitted his horse and mules to follow into the barn yard; that shortly thereafter the mother of appellee was attracted by his screams and found him in the barn yard with his leg broken, and saw the mule of appellant standing near appellee; that subsequently the mother of appellee and the physician who was called to attend appellee, observed a semi-circular mark on his leg, which bore an exact resemblance to the imprint -of the hind hoof of a mule. None of the witnesses called on behalf of appellee testified that they saw the mule kick appellee, and appellant testified that appellee was thrown down by a large dog with which he was playing. That appellant negligently permitted his horses and mules to enter the barn yard is established by his own evidence, and the case was tried in the court below by both parties upon the theory that if appellant was so negligent, and the injury resulted as alleged in the declaration, appellant was liable. Upon the question as to whether the injury was inflicted by the mule as claimed by appellee or by a dog *as claimed by appellant we are not prepared to say that the finding of the jury is against the manifest weight of the evidence. It is impossible to reconcile appellant’s evidence as to the cause of the injury with the mark which appeared upon appellee’s leg.

It is urged on behalf of appellant that Margaret Rendahl, who appeared as next friend for appellee, was an incompetent witness on his behalf because her husband had entered into a bond for costs and was, therefore, as it is claimed, directly interested in the result of the suit. This precise question has been determined against the contention of appellant in Belk v. Cooper, 34 Ill. App. 649, and I. C. R. R. Co. v. Becker, 119 Ill. App. 221. In the latter case the question is considered at length and we concur in the reasoning and conclusion there announced.

It is conceded by appellant that the contributory negligence, if any, of appellee would not bar a recovery, but it is urged that the sixth instruction given at the instance of appellee and which informed the jury that any want of due care or caution which might be shown upon the part of his parents would not be a defense to the suit if they believed from the evidence that appellee was otherwise entitled to recover, was erroneous. The negligence of appellant being established, contributory negligence, if any, of the parents of appellee was not imputable to appellee so as to bar a recovery by the latter. Chicago City Ry. Co. v. Wilcox, 138 Ill. 370; C. & A. R. R. Co. v. Vipond, 212 Ill. 199; Union Trac. Co. v. Leach, 215 Ill. 184. The instruction as framed is not a model, but taken together with all the other given instructions in the case the jury could not have understood therefrom that they were authorized to find a verdict in favor of appellee unless they believed from the evidence that appellant was negligent as alleged in the declaration. The judgment in this case might well have been affirmed for the failure of appellant to file such an abstract of the record as is contemplated and required by the rule of this court. The greater part of the evidence in the case is liter-' ally copied in the. so-called abstract, as it appears in the transcript by questions and answers, and an examination and consideration of the evidence as thus brought to our attention has involved an expenditure of much unnecessary time and labor.

There is no error in the record prejudicial to appellant and the judgment of the Circuit Court will be affirmed.

Affirmed.


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    Jesse M. Goodheart, Appellant, v. J. Whitney Hall, Appellee.
    1. Contracts—how to he construed. The construction of a contract is a question of law to be determined by the court.
    2. Appeals and errors—function of propositions of law. In order to save for review the question of the construction of a contract, it is necessary to present to the trial court propositions of law, where the cause has been tried by the court without the intervention of a jury.
    Assumpsit. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Ben L. Goodheart and Frank Y. Hamilton, for appellant.
    M. A. Brennan and Sigmund Livingston, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

Plaintiff brought this suit to recover the sum of $500 claimed to be due him from defendant, as a broker’s commission for procuring one Fishbeck to enter into a written contract with defendant for the purchase of certain real estate. A trial of the case by the court without a jury resulted in a finding in favor of the defendant and judgment against the plaintiff for costs.

There is no serious controversy as to the facts and the only question which the trial court was called upon to consider and determine was whether the written agreement entered into between defendant and Fish-beck became a valid, binding and enforceable contract for the purchase of the property by Fishbeck, or whether it merely constituted an option to purchase. The construction of the contract in this respect presented a question of law purely. Chickering v. Bastress, 130 Ill. 206; Fleet v. Hertz, 201 Ill. 594. If the agreement constituted merely an option contract plaintiff was not entitled to recover the commission sued for. Lawrence v. Rhodes, 188 Ill. 96. The only question involved being one of law, it was necessary in order to preserve such question for review in this court that plaintiff should have submitted to the trial court propositions to be held as the law of the case. As no such propositions were submitted to the trial court and no question is raised other than that relating to the proper construction of the written contract between defendant and Fishbeck, no question is properly presented for our consideration and determination upon this appeal. Mutual Protective League v. McKee, 223 Ill. 364; Jacobson v. Liverpool & London & Globe Ins. Co., 231 Ill. 61; Wight v. City of Chicago, 234 Ill. 83. The motion by plaintiff for a new trial in the court below did not supply the omission to submit written propositions of law. Jacobson v. Liverpool & London & Globe Ins. Co., supra.

The judgment of the Circuit Court will be affirmed.

Affirmed.


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    Hulda Smith, Appellee, v. Samuel T. Miller, Appellant.
    Measure of damages—in action for wrongful detention of property. The rule as to the measure of damages in an action to recover for the wrongful taking and detention of personal property is that the plaintiff is entitled to recover as damages the value of the use of the property while it was detained and any depreciation in such value during its detention, produced by abuse or want of reasonable care on the part of the defendant.
    Trespass. Appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Walter Eden and Eden & Martin, for appellant.
    R. M. Peadro and M. A. Mattox, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

Appellee, Hulda Smith, recovered a verdict and judgment against the appellant, Samuel T. Miller, for the sum of $307.41, in an action of trespass hy appellee against said appellant and others, to recover damages for wrongfully taking and detaining certain personal property, consisting of a team of horses, harness, wagon, buggy and farm machinery, the property of appellee. The property was taken by the sheriff of Moultrie county under and by virtue of an execution issued out of the County Court of said county upon a judgment in favor of appellant against the husband of appellee. Thereafter there was a trial of the right of property, resulting in a verdict and judgment in favor of- appellee, from which judgment an appeal was prosecuted to this court to the May term, 1907, and said judgment was there affirmed. Miller v. Smith, 137 Ill. App. 467. After the affirmance of said judgment by this court, the team of horses and harness were returned to the appellee on December 13,1907, and this snit was instituted by appellee, as before stated.

Appellee was deprived of the use of her property by its wrongful taking and detention for a period of 254 days, and the evidence tends to show that the reasonable value of the use of the team during that time was $1 per day; that by reason of a want of reasonable care of said property by the appellant, and those acting for him, the property depreciated in value, during its detention, to the extent of from $63 to $113, as variously estimated by the witnesses.

The main contention advanced on behalf of appellant for a reversal of the judgment, a determination of which is practically decisive of the case, is, that the true measure of appellee’s recovery is the interest upon the value of the property during its detention, and not the value of the use of the property during that time. This question is only involved in the case so far as it relates to the right of appellee to recover the value of the use of the team of horses.

The measure of damages in the case at bar is the same as in an action of replevin for the wrongful taking and detention of like property in Odell v. Hole, 25 Ill. 204, which involved the rule as to the measure of damages in an action to recover damages for the wrongful taking and detention of a mare, it was held that in an action of replevin, the plaintiff was entitled to recover as damages the value of the use of the property while it was detained, and any depreciation in the value of the property during its detention, produced by abuse or want of reasonable care on the part of the defendant. The same rule as to the true measure of damages in such cases is announced and applied in Alley v. McCabe, 147 Ill. 410.

The evidence in the record is ample to sustain the finding of the jury, based upon an application of the rule respecting the measure of damages as here announced, and as there is no error in the record which could have operated to the prejudice of appellant upon the merits of the case, the judgment of the Circuit Court will be affirmed.

Affirmed.


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    Anna M. Conner, Appellant, v. Charles F. Conner, Appellee.
    1. Witnesses—as to what wife competent; as to what not. A wife is incompetent to testify as a witness to any admission or conversation of her husband relative to transactions concerning a benefit certificate in suit wherein she is named as beneficiary, but' she is not incompetent to testify as a witness to such transactions relating to such benefit certificate, such as the delivery to her of said certificate, the keeping of the same by her, where she kept the same and the fact of the payment and advancement by her of money for the benefit and use of her husband.
    2. Assignments—of benefit certificate. While a benefit certificate is not assignable at law, a beneficial interest therein may be transferred in equity, and courts of equity will protect such equitable beneficial interest.
    Bill of interpleader. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed November 17, 1908.
    S. F. Schecter, for appellant.
    O. M. Jones and Arthur E. Hall, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

The Modern Woodmen of America, a fraternal beneficiary society, filed its bill of interpleader to determine the conflicting claims of the appellant, Anna M. Conner, and appellee, Charles F. Conner, to the sum of $2,000, being the amount of a benefit certificate issued to one James B. Conner. Upon the issues made by the several answers of appellant and appellee, and upon the payment into court by the said society of the money in controversy the society was dismissed out of the case, and the cause was referred to the master in chancery to take and report the proofs together with his findings thereon. The master found that appellee was entitled to receive the amount payable under the certificate, and recommended that a decree be entered in accordance with such findings.

Appellant filed objections to the master’s report, which objections were overruled, and thereafter filed exceptions to said report, which upon a hearing before the chancellor were also overruled and a decree entered in accordance with the report of the master.

The benefit certificate in question was issued July 12, 1904, to James B. Conner, and was made payable at his death to his wife, the appellant. Appellant and her husband lived together until July 5, 1905, when her husband was induced to go to the home of his brother, the appellee. At the time of his removal to the home of appellee James B. Conner was ill and appellant was temporarily absent from home. On July 7, 1905, James B. Conner made a written application to the beneficiary society for the cancellation of the certificate in which appellant was named as beneficiary, and for the issuance of a new certificate wherein appellee should be named as beneficiary. Upon receipt of such application and the surrender of the old certificate, the said society on July 13, 1905, issued a new certificate to James B. Conner payable at his death to appellee and delivered the same to said James B. Conner. James B. Conner died July 16, 1905.

Appellant asserts her right to the fund in question upon her claim that the original benefit certificate was delivered to her by her husband, with the statement by him that she should keep the same and upon his death should collect the proceeds and apply the same to the re-payment of money paid and advanced by her out of her individual funds for his use and benefit.; that she kept the certificate in her drawer in the house until the same was taken therefrom without her knowledge or consent by appellee and his mother; that she had paid nearly all of the assessments upon the certificate and had also paid all dues for her husband in a building association; that she had advanced for her husband various sums of money out of her individual funds aggregating $700; and that she had made all such payments and advances upon the faith and credit of said certificate. The claim of appellee to the fund in question is based solely upon the fact that the original certificate was surrendered and cancelled and a new certificate issued wherein he was named as beneficiary.

It appears from the report of the master that he wholly disregarded the testimony of appellant as to any and all transactions between herself and her husband in his lifetime, and that he held such testimony to be inadmissible. Specific objections and exceptions were made by appellant to the exclusion by the master of her testimony in the case, and such objections and exceptions were overruled. Appellant was incompetent to testify as a witness to any admission or conversation of her husband relative to transactions concerning the benefit certificate, wherein she was named as beneficiary, but she was not incompetent to testify as á witness to transactions relating to said benefit certificate, such as the delivery to her by her husband of said certificate, the keeping of said certificate by her, and where she kept the same, and the fact of the payment and advancement by her of money to and for the benefit and use of her husband. Section 5 of Chapter 51, entitled “Evidence and Depositions,” does not render the husband or wife incompetent to testify to transactions occurring during the marriage except where such husband or wife are called to testify as witnesses for or against each other. In the case at bar the husband is dead and appellant was not called as a witness to testify for or against her husband. The proviso, however, in the section referred to did not make appellant competent to testify to any admission or conversation of her husband.

The exclusion, in whole, of the testimony of appellant improperly deprived her of the only evidence at her command to establish the existence of certain transactions necessary to be established by her, in support of her claim. Exclusive of the evidence of appellee of admissions and conversations of her husband, which was properly excluded, the evidence of the witness George W. Conner, a brother of appellee, the witness Kelley, father of appellant, and the witness Lou Laird, as to admissions and conversations of the husband of appellant, tends to establish the existence of a contract between appellant her husband, whereby appellant acquired a beneficial interest in the benefit certificate which is enforcible in a court of equity.

While a benefit certificate is not assignable at law, a beneficial interest therein may be transferred in equity, and courts of equity will protect such equitable beneficial interest. Royal Arcanum v. Tracy, 169 Ill. 123; McGrew v. McGrew, 190 Ill. 604; Ptacek v. Pisa, 231 Ill. 522.

In the case of Gordon v. Gordon, 117 Ill. App. 91, relied upon by appellee, the party claiming a beneficial interest in the certificate, there involved, had not been named as beneficiary therein or in any other benefit certificate issued to the deceased in his lifetime, and that case is thus distinguishable from the case at bar.

The decree of the Circuit Court will be reversed and the cause remanded for further proceedings not inconsistent with the views here expressed.

Reversed and remanded.


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    Thomas L. Pierce, Appellant, v. James E. Shay et al., Appellees.

      Contracts—effect of partial illegality of consideration. If any part of an entire consideration for a promise or any part of an entire promise be illegal, the whole contract is void.
    Bill in equity. Appeal from the City Court of Mattoon; the Hon. T. N. Cofer, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    F. N. Henley, Clarence W. Hughes, and Voigt & Bennett, for appellant.
    Bryan H. Tivnen, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

The appellant, Thomas L. Pierce, filed his bill in equity to the January term, 1907, of the City Court of Mattoon, against William T. Layton, John H. Tivnen, trustee, and Edmund D. Jones, to foreclose a mortgage bearing date August 25, 1905, executed by said Layton to secure three principal notes bearing even date with said mortgage, for the sum of $100 each, payable to the order of said Layton in 1, 2 and 3 years, respectively, after date, with 5% interest, the said notes being endorsed by the said Layton in blank. Appellee, James E. Shay, was permitted to intervene in the suit and thereupon filed his answer to the bill denying appellant’s title to the notes and mortgage, and charging that the maker William T. Layton endorsed said notes to the said Shay and that the appellant won said notes from the said Shay in a game of chance at cards; and that appellant never paid any valuable consideration for the said notes and mortgage. Shay also then filed his cross bill wherein he set up the same matter alleged in his answer, and further alleged that he was the owner of said notes and mortgage; that Layton had made default in the payment thereof and prayed that the said notes and mortgage be decreed to be his property, and for a foreclosure of said mortgage. Layton filed his answers to the original and cross-bills, wherein he denied default and tendered the amount due upon the matured note, together with interest upon the three notes. Appellant answered the cross-bill denying that Shay was the owner of said notes and mortgage, and that he (appellant) had gained possession of the same as alleged in the cross-bill, and denied that he had not paid a valuable consideration for the same. The cause was heard by the chancellor in open court and a decree entered finding that the notes and mortgage were executed by Layton as alleged in the original and cross-bills; that appellant was not the lawful owner of said notes and mortgage but had obtained the same from Shay in consideration of the surrender by him to Shay of a note for $100 executed by Shay, and the further consideration of the delivery to Shay by appellant of his personal check for $192; that appellant, together with Shay and one Musgrove, had, before the delivery of the said notes and mortgage to appellant, gambled together for money and that in settlement of one of such gaming transactions Shay had given to appellant a note for $100, being the same note which appellant had surrendered to Shay; that the check for $192 given by appellant to Shay was knowingly so given at the time and place of a gambling transaction between Shay and Musgrove for the purpose of enabling Shay to bet in a game of chance with Musgrove; that Musgrove won the said check from Shay in said game of chance and secured the money thereon at the bank, and that appellant and Musgrove were confederates in said gambling transaction.

The decree directed that the bill of appellant be dismissed for want of equity; that appellant pay the costs of said proceeding to the filing of the decree and that the mortgage be foreclosed under the prayer of the cross-bill.

It is urged on behalf of appellant that the decree is contrary to the law and is not supported by the evidence in the record. Appellant is in error in assuming that the decree is predicated upon the theory that Shay was entitled to recover the amount of the check for $192 given to him by appellant, as for money lost by Shay to appellant in a game of chance. As we view the case the decree is primarily predicated upon the finding of the court that appellant and Musgrove collusively connived and confederated to induce Shay to transfer the said notes and mortgage to appellant, and that the transfer thereof so procured from Shay was without consideration.

The evidence tends to show that prior to the transaction here involved the appellant, Musgrove and Shay had played poker together and that Shay was generally the loser; that upon the day when the transfer of the notes and mortgage was made to appellant Musgrove and Shay had been engaged in playing poker and that the latter had lost as usual; that Shay desired to continue playing in the hope of retrieving his losses and to that end suggested to Musgrove that if he (Musgrove) could find some one to purchase the notes and mortgage he (Shay) would continue to play; that Musgrove suggested appellant as a probable purchaser of the notes and mortgage and interviewed appellant for that purpose; that through the efforts of Musgrove the appellant and Shay had an interview which resulted in the transfer of the papers by Shay to appellant; that appellant then knew, or had reason to believe, that Musgrove and Shay had been engaged in playing a game of poker in which Shay was the loser, and that the purpose of Shay in negotiating the notes and mortgage was to procure means to continue the game; that the transaction was closed about midnight; that in consideration for the transfer to him of said notes and mortgage appellant surrendered to Shay the latter’s note for $100 which Shay had given to appellant in settlement of a gambling debt, and also his check for $192 payable to his own order and indorsed in blank.

Appellant testified that no computation was made of the amount due upon the notes; that the notes were not worth their face value and that the surrender to Shay of the $100 note did not form any part of the consideration for the transfer, because said note was considered worthless. In addition to the testimony of Shay we think the fact that the amount of the check given by appellant to Shay together with the note for $100 surrendered to Shay, approximates the amount due upon the notes in question, authorizes a finding by the chancellor that said $100 note formed a part of the consideration for the transfer. So far as the transfer was made in consideration of the surrender of said $100 note it was void.

It is well established that if any part of an entire consideration for a promise or any part of an entire promise be illegal the whole contract is void. Douthart v. Congdon, 197 Ill. 349; First National Bank v. Miller, 235 Ill. 135.

A careful examination of the evidence in the record confirms the propriety of the decree in this case, and the same will be affirmed. One-half of the cost of the additional abstract filed by appellee will be taxed against the appellant.

Affirmed.