text:
    William Riemensnider, Appellee, v. Elmer Riemensnider, Trustee, et al., Appellants.
    Gen. No. 5,712.
    1. Appeals and errors—when no presumption that court heard evidence sufficient to sustain decree. Where a decree grants affirmative relief, if the successful party does not preserve the evidence that will sustain such decree and it does not find facts proven which will sustain it, no presumption will be entertained on appeal that the court heard evidence not appearing in the record sufficient to sustain it.
    2. Evidence—offer of proof containing both competent and incompetent matter. In a suit to declare a trust deed void, an offer to prove various facts is properly refused where competent and incompetent matters are offered together.
    3. Trusts—validity of. Persons who are beneficiaries under a trust deed are entitled to have it treated as valid until it is set aside after a hearing on the merits.
    4. Trusts—not set aside because grantor wishes to revolee it. If a trust deed was made under such circumstances that it was originally valid, the fact that the grantor afterwards changes his mind and wishes to revoke it, furnishes no reason for setting it aside.
    5. Trusts—creditors of beneficiaries. Property conveyed by a trust deed whereby the grantor provides that a certain portion of the net income shall be devoted to his support, is not subject to his after created debts, while such deed stands, other than for his suitable clothing and maintenance which are payable only out of the net income.
    6. Trusts—when trustee may appeal from order in suit to set

      aside trust deed. The trustee to whom certain property is conveyed has a right to appeal from an order entered in a suit by the grantor to declare the trust deed void where the order directs him to pay various sums regardless of the provisions of the deed, only one of the creditors provided for thereby is a party to the bill, and it does not appear that the court had jurisdiction of a minor who is a beneficiary.
    7. Infants—jurisdiction of minor defendant. When no process is served on a minor defendant, the court cannot acquire jurisdiction of his person and property by appointing a guardian ad litem ffor him.
    8. Infants—when minor not hound hy order. Where it does not appear that the court had jurisdiction of a minor defendant, though a guardian' ad litem was appointed who answered in a suit to declare a trust deed void under which such minor is a beneficiary, the minor is not bound by an order directing the trustee to pay out certain sums in a manner not prescribed by the deed.
    Appeal from the Circuit Court of La Salle county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed.
    Opinion filed March 12, 1913.
    L. B. Olmstead and Butters & Armstrong, for appellants.
    William M. Mercer and George M. Bagby, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

On October 11, 1911, William Riemensnider was the father of Elmer, Harvey and Eva Riemensnider and Anna Miller, and was the husband of Catherine Rmmensnider, whom he had married about one month before and against whom he either had filed or was about to file a bill for divorce, and he was the owner of a large amount of real estate, situated in the counties of DeKalb and La Salle, and of considerable personal property, and was some in debt. On that day he and his wife, Catherine, conveyed said real estate and his personal property by warranty deed to his son Elmer as trustee. The deed described the real estate specifically and described the personal property, part specifically and part in general terms, and it recited that William was indebted to sundry parties in the sum of $10,000 and that he wished by that conveyance to make a settlement of his estate in such a manner that said debts might be paid and a provision be made for his said wife and for his minor daughter, Eva, and that the remainder might be divided in accordance with the provisions of that instrument. It required the trustee to pay the debts of William Eiemensnider ; to educate, support and maintain his daughter, Eva, then ten years old, till she became eighteen years of age; and to pay his wife $1,250 within ten days, and to deliver to her the chattels and furniture in her possession in the City of Aurora and also a certain automobile; and for these purposes it authorized the trustee to sell and convey or incumber the real and personal estate, except the part to be delivered to his wife. It provided that after the payment of the debts and the provision for Eva and for his wife, the trustee should hold the residue of the property and pay so much of the net income thereof to said William Eiemensnider as might be necessary to properly and suitably clothe, keep and maintain him during the remainder of his life, less the necessary expenses for carrying out the provisions of that instrument. It then provided that after the death of William Eiemensnider, the property, real and personal, remaining in the hands of the trustee, should go to said four children in equal parts. This deed was duly recorded. On the same day that the deed was executed William Eiemensnider filed a bill for divorce against his wife in the city of Aurora, and three days later he obtained a decree of divorce in that court, the validity or collusive character of which divorce is not before us.

On January 9, 1912, William Eiemensnider filed a bill in equity in the Circuit Court of La Salle county against his said children and his said former wife, Catherine, to which bill the Farmers’ State Bank of Somonauk was afterwards made a defendant by supplemental bill; and by this suit the complainant sought to have said trust deed declared null and void, and to have the complainant restored to the custody, possession and control of the property which he had thereby conveyed. The grounds alleged for setting aside the deed were that he executed it through fraud, mistake, misunderstanding and imposition; that it was preceded by serious quarrels between himself and his wife and her sister; that when he signed it, he was enduring great mental stress and physical debility, caused by domestic quarrelling, the immoderate use of stimulants, and fear of bodily injury; that he did not read the instrument and did not comprehend its meaning and was assured by the grantee and others that the object was to protect his property and secure it to him and his children, and that when his family trouble was over the property would be reconveyed to him; and he also alleged that this instrument was without consideration and was against public policy and was contrary to the statutes of Illinois, and that the instrument was contradictory and meaningless. Catherine Riemensnider was defaulted, a guardian ad litem was appointed for Eva, the minor defendant, who filed a formal answer, and all the other defendants answered at length denying most of the material allegations of the bill. The cause was referred to a master to take and report proofs. Thereafter, on April 17, 1912, complainant filed a petition and afterwards an amended motion and, after a hearing -thereof, the court entered an order on May 9, 1912, that the trustee within thirty days pay to solicitors for petitioner $250 as fees and expenses, and pay to the complainant in person $50 on the first and fifteenth of each month thereafter till the further order of the court. From that order the trustee perfected an appeal to this court.

Appellee, William Riemensnider, contends that as there is no certificate of evidence in the record the order must be affirmed. There is language in Highley v. Deane, 168 Ill. 266, which, standing alone, would support that contention, hut an examination of the entire case seems to "show that there was a finding of facts in the decree; but if not, its authority must yield to later decisions. The rule at law is as contended for by said appellee; but in equity, where a decree grants affirmative relief, the party in whose favor it is rendered must preserve the evidence that will sustain the decree or the decree itself must find facts proven which will sustain it. If this is not done, no presumption will be entertained that the court heard evidence not appearing in the record sufficient to sustain the decree. Ryan v. Sanford, 133 Ill. 291; First Nat. Bank of Chicago v. Baker, 161 Ill. 281; Davis Paint Mfg. Co. v. Metzger Linseed Oil Co., 188 Ill. 295; Standish v. Musgrove, 223 Ill. 500; Patterson v. Northern Trust Co., 230 Ill. 334; Warden v. Glos, 236 Ill. 511, to which citations many other cases might be added. The order appealed from, signed by the trial judge, is preceded by a colloquy between court and counsel and by various offers by the solicitor for appellant to prove vari-' ous facts. While this offer contained some matters which, if offered alone, should have been received, it also contained many other matters not competent, and the competent and the incompetent being offered together, they were rightly refused. Jones on Evidence (2nd Ed.) sec. 864; Cressey v. Kimmel, 78 Ill. App. 27; Zinser v. Sanitary District, 175 Ill. App. 9. But this recital preceding the order signed by the judge, contains no evidence or finding of facts which will support this order, and, outside of it, there is no certificate of evidence showing any proof justifying the order, and the order does not find the facts.

Counsel for William Biemensnider argue the case as if the property described in the deed is his property, of the use of which he is being wrongfully deprived. It may be that when the case is tried upon the merits it will appear that the deed should be set aside for fraud or for the lack of mental capacity in the grantor to make it. At the present time, however, it stands as a valid instrument and, until it is set aside after a hearing upon the merits, all the persons who are beneficiaries thereunder are entitled to have it treated as valid. The fact that the grantor in a settlement of this kind afterwards changes his mind and wishes to revoke the instrument furnishes no reason for setting it aside, if it has been made under such circumstances that it was originally valid. By the language of the instrument, after certain other matters have been attended to, complainant is to have his suitable support out of the balance of the net income. It appears from the pleadings that the trustee has been paying complainant sums of money for his support, and it does not appear from the record that the trustee has paid him an insufficient sum or has failed to pay him all that is available for that purpose. The order did not find that these solicitors were creditors of complainant at the date of the deed, but the allowance was apparently intended to pay them for services, rendered and to be rendered after the execution of the deed. We are not called upon to decide what order should be made on a proper showing that the net income is not being devoted to the support of complainant as provided in the deed, or that at the date of the deed he was indebted to his solicitors in a given sum, and that there are sufficient funds available to pay them as well as the other creditors secured by the deed. But the seeking of such relief would be in affirmance of the deed, whereas the purpose of the bill of complaint is to set aside the deed. Obviously while this deed stands this property is not subject to debts afterwards created by the grantor, other than for his suitable clothing and maintenance; and such clothing and maintenance are payable only out of the net income. If the grantor is permitted to make his subsequent debts a charge upon this property he can entirely defeat the instrument and dissipate the estate by indirection, even though it shall afterwards turn out upon the final hearing to be a valid instrument and a valid settlement of his property for the benefit of his family.

Complainant contends that the trustee had no right to prosecute this appeal. The cases relied upon to support that contention are where a bill was filed to enforce a trust and the court had appointed the trustee or was giving him directions pursuant to the trust. Here complainant is seeking to defeat the trust entirely. Elmer Riemensnider, having accepted the trust, is now trustee, not only for his father but also for his brother and his sisters and himself and for the creditors, and the court was directing him to pay out various sums of money regardless of the order prescribed by the trust deed. Under that instrument, for instance, the father seems not to be entitled to anything for his support until the minor, Eva, is provided for, and this order did not find, nor does the record show, that the sums named could be withdrawn from the income without emperiling her prior right to support and education. We are of opinion that in a case of this kind, brought, not to enforce a trust but to destroy it, the trustee ought to be permitted to appeal. Moreover, only one of the creditors is a party to the bill. The trustee must protect those creditors who are not parties, and he has a right to appeal to protect the rights of the minor.

There is another reason why this order cannot stand. Eva, the minor, has an important interest in this trust estate and was named as a defendant to the bill and a guardian ad litem was appointed for her, who answered. But, though the record is certified to be complete, we do not find that any summons was ever issued for her or ever served upon her, nor is there any order of court finding service upon her. A court cannot acquire jurisdiction of the person and property of a minor defendant by appointing a guardian ad litem for such minor, when no process has been served úpon such minor defendant. Clark v. Thompson, 47 Ill. 25; Campbell v. Campbell, 63 Ill. 462; Campbell v. Campbell, 63 Ill. 502; Chambers v. Jones, 72 Ill. 275; Manternach v. Studt, 230 Ill. 356. No jurisdiction of this minor is shown by the record before us, and she is not bound by this order, and in another proceeding she could compel the trustee to provide for her support and education regardless of this order. This is another reason why the trustee could appeal, and why the order is erroneous.

The order is therefore reversed.

Reversed.


source: Caselaw Access Project

author: Mr. Presiding Justice Dibell

license: Public Domain

text:
    Arthur Lichter, Appellee, v. Aurora, Elgin & Chicago Railroad Company, Appellant.
    Gen. No. 5,716.
    1. Automobiles—Iinstructions as to care. An instruction in an action for damages growing out of a collision between a street car and an automobile which directs a verdict and fixes the time during which plaintiff was required to exercise due care as “at and just prior to the collision,” is apt to mislead when the evidence tends to show that plaintiff applied the brakes from 25 to 70 feet from the street car track but owing to the speed of the automobile he could not stop it, and that he knew the location of the track and should have seen the car before he did.
    2. Instbuctions—negligence. An instruction which begins properly by leaving the questions to the jury as to defendants’ negligence and whether it caused the accident in question, but contains in the body thereof a direct statement by the court that such negligence was the cause, is improper.
    Appeal from the City Court of Aurora; the Hon. Edwabd M. Mangan, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 12, 1913.
    Rehearing denied April 8, 1913.
    Hopkins, Peffbrs & Hopkins, for appellant.
    Mjghell, Gunsul & Allen, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Fox street, in the city of Aurora, runs east and west and Union street runs north and south. Appellant operates a street car line on Union street. On Saturday morning, August 20, 1911, appellee was driving an automobile owned by him east on Fox street and, as he crossed Union street, he came into collision with a street car going north on Union street. His automobile was damaged, and he was thrown over the front of his machine and was injured. He brought this suit against the street car company to recover damages for said injuries to his person and to the automobile, and alleged in the first count of his declaration general negligence of the company in operating the car, and, in the second count that it was run at a speed which violated an ordinance of the city. At the first trial the jury disagreed. On a second trial he had a verdict for $1,655. The court held the verdict excessive and appellee remitted $655 therefrom and a motion for a new trial was then denied and appellee had judgment for $1,000, from which the company appeals.

Appellee introduced evidence tending to show that appellant was running the street car at a speed which violated an ordinance of the city and that appellee was running the automobile at a very moderate speed and was exercising due care. Appellee himself testified that he saw the car coming when he was about 25 feet from the track and that he stopped his automobile and that after he stopped it, the street car arrived and the front part of the vestibule passed the automobile, but the part of the vestibule next to the street car struck the front part of the automobile and twisted it and broke it and left it facing west. His witness who was with him in the automobile, and a woman nearby who testified in his behalf, both stated that the automobile ran into the street car, and such was the evidence of all the witnesses called for appellant who saw the accident. Appellant introduced evidence tending to show that the street car was running at a speed much less than appellee claimed and that appellee was running his automobile at a speed of from 30 to 45 miles per hour, in violation of the statute then in force. Appellant’s proof tended to show that if appellee had been looking out he could have seen the approaching street car very much more than 25 feet from the crossing and, indeed that the marks on the street showed that his brakes had been set some 60 or 70 feet from the crossing and that, if the automobile had at that point been running within the speed authorized by statute in the residence portion of a city, as this was, it could have been stopped long before the street car track was reached. There is apparently so clear a preponderance of evidence that this accident was caused by the very excessive and unlawful rate of speed at which appellee was driving his automobile that we are of opinion the case should be submitted to another jury, and we deem it unnecessary to burden this opinion with a recital of the testimony of each witness on that subject.

The 8th instruction, given at the request of appellee and which directed a verdict for appellee, fixed the time during which appellee was required to exercise due care as “at and just prior to the time of the collision.” In view of the evidence that appellee set his brakes and tried to stop his automobile at a distance variously fixed by the witnesses at 25 feet or 60 or 70 feet from the street car track, we are disposed to hold that the expression above quoted was liable to mislead the jury. The jury might very readily conclude from the evidence that after appellee started to set his brakes he exercised due care to avoid a collision and they may have supposed that this answered the requirement set up in the 8th instruction. It was ..not the contention of appellant that appellee failed to exercise due care’after he started to set his brakes, but that, knowing as he did the location of the street car track and that street cars might be expected from either direction at any time, he negligently and unlawfully ran his automobile so swiftly as he approached that street and kept up that rapid and negligent and unlawful speed so long that when he finally discovered the car it was then too late to stop his automobile and also, that he could and should have seen the car when much further back from Union street; and that his negligence therefore was not “just prior to the time of the collision” in the strict meaning of those words, but was negligence in approaching the place of danger without due control of the automobile and without a due look out for danger. Said instruction No. 8 after submitting to the jury the question whether the defendant was negligent, also said: “which negligence was the direct cause of the collision.” It should have read “and if the jury further find from the evidence that said negligence was the direct cause of the collision.” The instruction began in proper form, leaving the questions to be determined by the jury from the evidence, and then in the body of the instruction it was changed to a direct statement by the court that such negligence was the cause of the collision. Such change in the form of a plaintiff’s instruction has sometimes been impliedly approved or treated as unimportant and perhaps it should not be a ground for reversal, standing alone, though we disapprove it, but we call attention to it in order that it may not be repeated upon another trial. Appellant contends that instructions 1 and 4 given at the request of appellee, as applied to the special facts of this case, come within the criticism of an instruction in North Chicago St. R. Co. v. Cossar, 203 Ill. 608. These instructions relate to the conduct of appellee before as well as at the time of the collision, and do not limit his exercise of due care to a time after he was in danger, and we think the case cited is not applicable, but that said instructions 1 and 4 conform to the rule stated in Chicago City R. Co. v. O’Donnell, 208 Ill. 267, and South Chicago City R. Co. v. Kinnare, 216 Ill. 451. Other parts of the record have been seriously criticised, but the same situation is not likely to arise again after the discussion had in this court, and we deem it unnecessary to consider them now. The judgment is reversed and the cause remanded.

Reversed cmd remanded.


text:
    Ollie T. White et al., Appellees, v. Miner T. Ames, Appellant.
    Gen. No. 5,726.
    1. Bbokers—compensation. A judgment for commissions in procuring a purchaser for a farm is reversed where it appears there was not sufficient evidence to justify the jury in finding the proposed .purchaser could raise sufficient money.
    2. Brokers—when judgment for commissions is not sustained. A judgment for commissions in procuring a purchaser for a farm is reversed where there is no evidence that the defendant and the proposed purchaser could have agreed on the terms of sale.
    Appeal from the County Court of Woodford county; the Hon. Arthur C. Poet, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 12, 1913.
    Thomas Kennedy and McDougall & Chapman, for appellant.
    Harry Thorn and Orman Bidgely, for appellees.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Ollie T. White and Wilfred Bogers, who do not aver that they were partners, brought this suit against Miner T. Ames to recover commissions which they claim they earned in procuring a proposed purchaser for a farm owned by Ames and which farm Ames did not sell to said purchaser, and on a trial without a jury they had a judgment for $600 from which Ames appeals.

Appellant was a student at the "University of Illinois. Under the date of July 27, 1911, he wrote a letter to White from Louisiana, in which he authorized White to sell either 200 or 300 acres of his farm, and stated that he would wish $25,000 cash and the balance at 6 per cent, with equal payments every year, and that he would give White $2 per acre for his services in selling. Ames did not set the price at which he would sell nor did he state in the letter over how many years the equal payments for the balance could be extended. It would seem that White undertook to associate Bogers with him in making a sale. Appellant returned to this state, and early in August, 1911, had conversations with appellees and they brought him Uphoff as a prospective purchaser. Uphoff told appellant that he understood that he was to pay $2,000 cash down and $25,000 the first of March, 1912. Appellant declared that he had never agreed to sell on any such terms, but must have $25,000 cash down. Appellant had fixed a price of $65,000 for 306 acres of his farm, near Minonk, but seems to have been willing to accept $64,000. The parties separated and no sale was made. Appellees testified that in an interview with appellant after he returned, they told him that Uphoff could not raise $25,000 at once, and that appellant then said that he only wanted $2,000 cash down - and $25,000 the first of March following. Appellant testified that he did not make any such statement. Appellees insist that they have the preponderance of the evidence on that subject, and that Uphoff was ready, willing and able to pay $2,000 cash down and $25,000 on the first of March following and the balance in easy payments at 6 per cent. We are of opinion that for two reasons the judgment should not be sustained.

1. We do not think the jury were justified in finding from this evidence that Uphoff was able to pay $25,000 on the first of March, 1912. He did not have any such money. He owned a farm and if he could sell that farm at such a price as he was willing to sell for and to a purchaser who could pay him $25,000 down, then he would be able to pay $25,000 on this proposed purchase, but if he was unable to sell that farm and get $25,000 out of it by the first of March, 1912, then he would not be able to pay appellant that sum at that time. It was proved that he had a father who had some property, but there was no proof that his father was either able or willing to help him raisé that $25,000. It is very evident that Uphoff in fact could not buy this farm and pay for it on the terms proposed, unless he could before March 1, 1912, sell his own farm and get a large cash payment down.

2. There had been no negotiations between appellant and Uphoff or appellees and Uphoff as to the number of years over which the remaining payments should be extended. It had been said that appellant would accept easy payments for the rest, but he and Uphoff might have entirely disagreed as to what would be easy payments. It was not known whether Uphoff was able or willing to make as large payments and as frequently as appellant might demand. Those terms had not yet been discussed and it cannot be known that the minds of the parties would have met or that Uphoff would have purchased on the terms which appellant would have fixed.

The judgment is therefore reversed and the cause is remanded for a new trial.

Reversed cmd remanded.


text:
    George M. Hem, Appellant, v. J. M. Allen et al., Appellees.
    Gen. No. 5,730.
    1. Appeals and ebbobs—bill of exceptions. A clerk has no authority to certify what propositions of law were presented to the trial judge nor what rulings he made thereon.
    2. Appeals and ebbobs—when propositions of law cannot be reviewed. Propositions of law certified to hy the clerk and not inserted in a hill of exceptions are not considered by a court of review.
    3. Bankruptcy—effect of composition. Where a creditor files his claim on a note in a bankruptcy court having jurisdiction of the debtor and joins in a composition agreement, the debtor’s discharge is a good defense to an action on the note.
    4. Evidence—hearsay. The testimony of an attorney that the clerk of court told him there were no funds to pay a certain claim is hearsay and incompetent to prove nonpayment.
    . 5. Bankruptcy—effect of order. An order of the district court confirming a composition in bankruptcy is prima facie evidence that the money was paid to creditors.
    6. Judgments—when defendants not jointly liable. Where a declaration against several charges a joint liability, and one defendant shows he was never liable, a recovery cannot be had against the other defendant without dismissing the defendant not liable and amending the declaration by omitting the charge of joint liability.
    7. Appeals and ebbobs—when error is waived. A point not argued on appeal is waived.
    8. Costs—failure to establish joint liability. Where a declaration against several charges a joint liability, and one defendant sets up a discharge in bankruptcy which has accrued to him since he signed the joint obligation, such defendant may recover his costs in a suit, against both defendants, and yet plaintiff may be entitled to judgment against the other defendant.
    9. Bankruptcy—discharge as affecting joint liability. While the release of one joint debtor usually discharges, the other this rule does not apply to a discharge by a composition in bankruptcy.
    Appeal from the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 12, 1913.

      Certiorari denied by Supreme Court (making opinion final).

      Charles I. McNett and Charles A. Love, for appellant.
    M. O. Southworth, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Appellant is the owner of a joint and several promissory note for $750, dated May 6, 1901, payable “six after date” .which the declaration averred was six months after date, signed by J. M. Allen and I. S. Stephens, with a power of attorney to confess judgment. On December 21, 1910, he recovered a judgment by confession against the signers thereof for $1,105 and costs. On February 4, 1911, at the same term, the court granted a motion by the defendant Stephens to stay the execution upon the judgment, with leave to said defendant to plead and with an order that the judgment stand as security. Defendant Stephens filed three pleas, (1) non assumpsit; (2) a bankruptcy proceeding against him in the District Court of the United States for the Northern District of Ulinois, wherein he was adjudged a bankrupt and this note was allowed in' favor of appellant; a composition agreement with his creditors; his deposit of the consideration and money required to be deposited as ordered by the judge'of said court; and the confirmation of said composition; of all which it was alleged appellant had notice; and there was an averment that this alleged debt was not exempted from the operation of a discharge .in bankruptcy; (3) an accord and satisfaction. To the second plea there was a replication, denying seriatim all the allegations of said plea and concluding to the country. To the third plea there was an amended replication, denying the accord and satisfaction. Issues were joined on these pleadings. A jury was waived and the cause was tried and the issues were found for the appellees and they had judgment against appellant for costs, and he appeals therefrom.

It is contended by appellant that the court erred in its rulings upon certain propositions of law. They are not contained in the bill of exceptions and are therefore not before us. The clerk has inserted certain alleged propositions of law, and certain marks thereon, assumed to have been made by the court. The clerk has no authority to certify what propositions of law were presented to the trial judge nor what rulings he made thereon. As said of another like matter in Boyle v. Levings, 28 Ill. 314 “the law requires the certificate of the judge and not of the clerk to that fact.” Gould v. Howe, 127 Ill. 251; Aden v. Road Dist. No. 3, 197 Ill. 220; Bruen v. People, 206 Ill. 417; People v. Stowers, 254 Ill. 588.

Sections 12, 13 and 14 of the Bankruptcy Act of 1898, relate, among other things, to the subject of compositions between the bankrupt and his creditors. Clause (b) of section 12 permits an application for the confirmation of a composition after, but not before, certain things have been done, among which is that the consideration to be paid by the bankrupt to his creditors, and the money necessary to pay all debts having priority, and the costs, shall have been deposited in such place as shall be designated by the judge and subject to the order of the judge. Clause (d) of said section requires the judge to confirm a composition if satisfied of certain things. Clause (e) requires that upon the confirmation of a composition, the consideration shall be distributed as the judge shall direct. Section 13 authorizes the judge, on application of parties in interest filed within six months after the composition has been confirmed, to set the same aside upon a certain showing. . Section 14 (c) provides that the confirmation of a composition shall discharge the bankrupt from his debts, other than those agreed to be paid by the terms of the composition and those not affected by a discharge.

The proof offered by appellees showed a bankruptcy proceeding pending in the District Court of the United States for the Northern District of Illinois against appellee Stephens and a petition for a composition filed in said cause, and the taking of the various steps provided by the Bankruptcy Act; that the offer of composition was accepted by the requisite number of creditors, and among them, by appellant; that the composition was recommended by the referee; an application to' the court to confirm said composition, and an order by the court finding that the consideration and the money required by law had been deposited in such place as was designated by the judge of said court and subject to the order of said judge, and confirming said composition. There was also introduced in evidence an order by said court that the distribution of the deposit be made by the clerk of the court. Appellees contend that those orders are binding upon appellant and conclusive that the composition money was paid and that appellee Stephens was thereby discharged. Appellant contends that the District Court had no jurisdiction to enter any such order and that, if it had, it is prima facie proof only, and he has proven that the composition money for appellant was not paid and therefore the discharge is not operative, and therefore he can recover his whole debt in this proceeding, which was begun long after the confirmation of said composition in the Federal Court. The District Court had jurisdiction of Stephens, the bankrupt, and of his estate, and of appellant, who both filed his claim upon this note and procured its allowance, and also signed the composition agreement and consented to the composition. That court had jurisdiction to determine whether the composition should be confirmed, and therefore necessarily had jurisdiction to determine whether those things which the law required to precede the confirmation of the composition had been performed by the bankrupt, one of which was that the consideration to be paid by the bankrupt to his creditors had been deposited in a place designated by the judge and subject to the order of the judge. Therefore this order was entered in a matter of which the court had jurisdiction, and no reason is seen why it should not be given full force and effect, unless it was procured by such a fraud as would authorize the setting aside of any other judgment, and no such fraud is alleged or proven.

Appellant contends that he has proven that the -25 per cent, which he was to receive by the composition was not paid to the clerk of the District Court. We find no such evidence in the record. He did prove that he had not received it, and an attorney testified' that he went to the office of the clerk of the District Court for appellant and the clerk told him that there were no funds there to pay the claim; that he had paid out all the funds that had been paid in. The witness did not state when this was. The answer of the clerk was hearsay and incompetent, as appellees were not present. We think that, under this statute, if pursuant to the order of the court the money was paid to the clerk subject to the order of the judge, and if it was not paid by the clerk to the proper party, the remedy of the creditor would be in that court or upon the bond of the clerk whom the court had made custodian and distributor of the fund. Moreover the fact of nonpayment could not be proved by the hearsay statement of the clerk. Again, the clerk did not say the money had not been paid in. He may have made a mistake when he said he did not then have it. His declaration that he did not then have it does not prove that fact. It may be that appellant’s attorney drew the money and has it. But if the order of the District Court is not treated as conclusive, it is at least prima facie proof that the money due to appellant under the composition was paid to the person required by the order of the court, and that upon the confirmation of the composition appellee, Stephens, was discharged by the terms of the statute from this debt; and that prima facie case has not been overcome by any competent proof.

The original judgment was against" appellee, Allen, also. He was declared in the note to be a principal. He did not plead or prove any defense. Where a declaration against several charges a joint liability, and one of the defendants shows that he was never liable, a recovery cannot be had against the other defendant without dismissing the defendant not liable and amending the declaration by omitting the charge of joint liability; but where one defendant sets up a defense like a discharge in bankruptcy, which has accrued to him since he signed the joint obligation, such defendant may recover his costs in a suit against both defendants, and yet the plaintiff may be entitled to a judgment against the other defendant. Byers v. First Nat. Bank of Vincennes, 85 Ill. 423; Felsenthal v. Durand, 86 Ill. 230; Seymour v. Richardson Fueling Co., 205 Ill. 77; Grand Pacific Hotel Co. v. Pinkerton, 217 Ill. 61. While the release of one joint debtor usually discharges the one bound with him (Clark v. Mallory, 185 Ill. 227) this rule seems not to apply to a discharge by a composition in bankruptcy. Moore v. Stanwood, 98 Ill. 605. The record does not show why appellant was not entitled to maintain his original judgment by confession against Allen, less the amount of the composition. But this point has not been argued by appellant and is therefore waived.

The judgment is therefore affirmed.

Affirmed.

Mr. Justice Carnes, having tried the case in the court below, took no part in this decision.


text:
    Robert Maggart, Appellee, v. Peoria Railway Company, Appellant.
    Gen. No. 5,733.
    1. Carriers—injury from starting car. Plaintiff alleged and testified that while alighting from defendant’s street car, he was thrown to the pavement and injured because of the car suddenly starting. The conductor and another passenger testified that plaintiff, after getting off from the car in safety, took several steps and then stumbled over an obstruction in the street. Held, that a verdict for plaintiff would be sustained.
    2. Evidence—weight not necessarily dependent on number of witnesses. Where the plaintiff is the sole witness on his side as to an accident, and his testimony is contradicted by two witnesses, it does not necessarily follow that the jury must believe the two in preference to the one, as the demeanor of the two may have inspired less confidence.
    3. Damages—verdict for $1,876 for broken leg not excessive. Plaintiff, an insurance solicitor, had earned on an average $275 per month. Owing to an accident, in which he broke his leg, he was wholly incapacitated for three and a half months, and unable to work more than one-fourth of the time for the next two months. He also incurred hospital and surgeon’s bills for $82.50 and endured pain and suffering. Held, that a verdict for $1,375 was not excessive.
    Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puteebaugh, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 12, 1913.
    Pinkney & McRoberts, for appellant.
    Woleenbarger & May, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Appellee was a passenger on a street car operated by appellant. He was to alight at a certain cross street to transfer to another street car operated by appellant. The car stopped a few feet from the intersection and he got off. He fell and broke his leg. He sued appellant to recover damages for the injuries which he received. He alleged in his declaration that as he was about to alight after the car had been stopped for that purpose, it was suddenly started without warning and he was thereby thrown to the pavement and injured. On a jury trial he had a verdict and a judgment for $1,375. Defendant below appeals therefrom.

The testimony of appellee sustained his declaration. The conductor testified for appellant that appellee got off the car in safety and took several steps and then stumbled over an obstruction in the street, due to its being repaired there, and fell. A passenger corroborated the conductor. There were some circumstances which appellant contends corroborate its witnesses. Appellee points out apparent contradictions between these witnesses, and there was evidence, both that the street was being repaired where appellee alighted and that it was not being repaired and was not obstructed at that particular place. Appellant contends that the jury should have believed its two witnesses and should not have believed appellee, and that the verdict is against the greater weight of the evidence and that, for that reason, a new trial should have been awarded. It does not necessarily follow that where there is one witness on one side and two on the other, the jury must believe the two in preference to the one. The jury may have seen that in the demeanor of the conductor and the passenger which caused it to put less confidence in their testimony than in that of appellee. The trial judge should have granted a new trial if in his opinion the evidence clearly preponderated against the appellee. By denying the motion for a new trial, the trial judge has approved the verdict. We find nothing in the record which would warrant us in holding that his decision on that motion was erroneous.

It is contended that the damages awarded are excessive. The proof is that appellee was an insurance solicitor for a company in Peoria and that he earned on an average $275 per month; that for three and a half months after the injury he was wholly incapacitated for this business, and that for the next two months he was unable to work more than one-fourth of the time; that he incurred a hospital bill of $57.50 and a physician and surgeon’s bill of $25, and that he also endured pain and suffering. The amount of his average earnings was susceptible of easy contradiction by calling the officers of the company for which he worked, if he misstated the amount. There was no contradiction as to this loss.

Other errors are assigned, but they are not argued and they are therefore waived.

The judgment is affirmed.

Affirmed.


text:
    Stephen H. Wilder et al., Appellants, v. Commissioners of Whiteside and Rock Island Special Drainage District, Appellees.
    Gen. No. 5,736.
    1. Drains—farm, drainage act does not authorize pumping station. A petition for mandamus to compel the commissioners of a drainage district to drain a thousand acres of land therein, which had not been reclaimed by the system installed, is properly dismissed where the evidence shows that the water in the district ditches is only1 from .3 to 1.44 feet above the surface of the outlet river at low water, and that substantial relief can be afforded only by constructing levees and gates and operating a pumping station, since the Farm Drainage Act does not suggest such methods, nor authorize the incurring of great expense for such purpose.
    2. Dbains—farm drainage act limited, to natural drain. The intention of the Farm Drainage Act is that the land is to be drained in artificial ditches or natural water courses by the natural flow of the water to lower level, and greater authority will not be read into it.
    3. Dbains—levee act authorizes pumping stations. The construction and maintenance of levees and a pumping station are authorized in drainage districts organized under the Levee Act of May 13, 1905; such authority not existing prior to, nor outside of, said act.
    Appeal from the Circuit Court of Whiteside county; the Hon. Emeby C. Gbaves, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 12, 1913.
    Rehearing denied April 3, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    A. A. Woleersperger and McCalmont & Ramsay, for appellants.
    William H. Allen and McMahon & Rogers, for appellees.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

The Whiteside and Rock Island Special Drainage District, in the counties of Whiteside and Rock Island, was organized under the Farm Drainage Act, approved May 29, 1879, and in force July 1, 1879 (Laws of 1879, p. 142). That and other acts were revised and consolidated in- the Farm Drainage Act, approved June 27, 1885, and in force July 1, 1885. Stephen H., Parker H., and Charles M. Wilder, the appellants, own about 1,000 acres of land in the lower part of said drainage district, which is practically unreclaimed by the drainage system installed and operated by the district. They filed an original and an amended petition against the commissioners of said district for a writ of mandamus to command the district to drain their lands and, if necessary, to levy and collect the taxes necessary therefor. The amended petition was answered and the cause was tried by the court without a jury, and thé petition was dismissed. Petitioners appeal from that judgment.

There were many rulings by the court upon propositions of law and questions of fact, of which complaint is made. There is much discussion upon many technical questions concerning the science of draining lands. The evidence is exceedingly voluminous and the discussion of the case by counsel is lengthy. We have concluded that the judgment of the court below should be sustained upon grounds which make it unnecessary to discuss the rulings of the court upon many questions.

It is clear that appellants are entitled to have their lands drained, if the Farm Drainage Act furnishes the means wherewith it can be done. Appellants claim that by deepening and widening the channel at a certain railroad bridge, and deepening and widening and perhaps straightening a certain bayou, which leads from said bridge to the Bock Biver a mile and a half distant by a winding way, or half a mile distant in a direct line, the lands of appellants can be substantially benefited. We are satisfied from the evidence that no such benefit can be given to appellants’ lands by work of that kind. At low water the surface of the water in Bock Biver is from .3 of a foot to 1.44 feet below the level of the surface of the water in the drainage ditches above the bridge. No amount of deepening or widening or straightening the waterway at the railroad bridge and thence to the river can afford any substantial relief to appellants’ lands, and an improvement of the kind described would enable the high water of Bock Biver to flow back in still greater volume over the lands of the district. We are of opinion from the evidence that the only method by which substantial relief can be afforded to the unreclaimed lands of appellants is either by obtaining the right to use the railroad grade for several miles east from the point in question as a levee, or building a levee for several miles, and either establishing gates at the various railroads or filling underneath said railroad bridges, and then establishing and operating a pumping station at the lower end of the district at or near said first mentioned railroad bridge, and thereby to pump all the waters of the district over said railroad embankment or said levee and discharge them into Bock Biver. We are unable to find any authority in the Farm Drainage Act which authorizes the construction and maintenance of levees and a pumping station." That authority is expressly conferred upon drainage districts organized under the Levee Act by the act approved and in force May 13, 1905 (Hurd’s Bevised Statutes, 1911, p. 938, being paragraph 210 of chapter 42.) And that act undertakes to ratify former action by drainage districts organized under the Levee Act in establishing and maintaining pumping plants. The course of legislation upon that subject appears to indicate that it was the view of the legislature that power to build and maintain levees and a pumping station did not exist prior to the passage of the act just" cited. The establishment and maintenance of levees and a pumping station would be very expensive, according to the evidence before us. In our opinion it was the intention of the Farm Drainage Act that the land should be drained in artificial ditches or natural watercourses, by the natural flow of the water to a lower' level. "We do not feel at liberty to read into the Farm Drainage Act authority to incur such great expense in doing things of which no suggestion is given in the act. Therefore, regardless of any minor error that may appear in the rulings of the court upon the propositions of law and questions of fact submitted to it, we are of opinion that the judgment of the court below is correct and should be affirmed.

The judgment is therefore affirmed.

Affirmed.


text:
    Dwight Orr, Appellant, v. Wahlfeld Manufacturing Company, Appellee.
    Gen. No. 5,738.
    1. Appeals and errors—harmless error. An alleged error in ruling of court on question of safely guarding a machine will not he considered on appeal when raised hy appellant who obtained judgment in his favor.
    2. Appeals and errors—harmless error. An alleged error in instructions as to degree of proof required of plaintiff is not considered when raised by plaintiff on appeal from a judgment in his favor.
    3. Parent and child—when parent relinquishes right to claim earnings. Where a mother entitled to the earnings of her minor son, permits him to sue in his own name by herself as next friend, and in the declaration claim his right to recover future earnings during his minority, she thereby relinquishes her right to claim such earnings.
    4. Damages—right of minor to recover for loss of future earnings. In a personal injury action an instruction permitting a minor son to recover for loss of wages during the rest of his minority is properly denied where there is no evidence that plaintiff’s father has lost his right to such earnings.
    5. Damages—instructions. In a personal injury action by a minor, an instruction to the effect that if the jury find for plaintiff, it is not necessary that any witness should have expressed an opinion as to the amount of damages, but the jury can make such estimate from the facts proven in connection with their experience in the affairs, of life, is improperly refused.
    6. Damages—inadequate. A judgment for $500 in favor of a young man for the loss of portions of three fingers of his right hand is inadequate.
    Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbaugh, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 12, 1913.
    Mansfield, Cowan & Boulware and William: M. Barnes, for appellant.
    Weil & Bartley, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Appellant, a minor, was in the employ of appellee and was working upon a power driven machine called a wood shaper. His right hand was caught in the machine and he lost Ms little finger at the second joint, Ms tMrd finger at or near the second joint, and Ms second finger at or near the first joint. This accident occurred on September 2, 1910, after the act to provide for the health, safety and comfort of employes, approved June 4, 1909, was in force. He brought this suit by his mother as his next friend to recover damages for the injuries so sustained. Each count of the declaration charged a violation of said statute in that said macMne was not properly guarded, and some counts charged a wilful violation of the statute. Each count charged that it was practicable to have guarded the knives of the said macMne. Several of the counts say that it was practicable for plaintiff to have guarded the macMne. No doubt it was meant to charge that it was practicable for defendant to have guarded the macMne, and these mistakes should be corrected before another trial. Some counts of the declaration alleged that plaintiff was in the exercise of due care, and appellant requested and obtained instructions wMch required of him due care. Appellant recovered a verdict and a judgment for $500, and appeals therefrom. He alleges error in the ruling of the court on the question of safely guarding the machine. The jury found for him and therefore he was not injured by that ruling. He argues that certain instructions, given for appellee, required of him too high a degree of proof, but the jury found he had the necessary proof. These questions are not raised by the record. Only two questions are raised. Appellant contends (1) that the court erred in refusing instructions 3 and'5, requested by appellant, and (2) that the damages awarded are inadequate.

Instructions given for appellant said that in the case stated in those instructions the jury should assess plaintiff’s damages as explained in other instructions. Instructions 3 and 5, requested by appellant, were the only ones upon the measure of damages and they were refused, so that the jury were left without any instruction' as to the measure of damages. Appellee argues that the court properly refused the third instruction, because it contained the element of future pain and suffering and loss of strength and inability to work in the future and that there is no allegation in the declaration seeking a recovery therefor. This is a misapprehension. The first count, after alleging what happened to appellant and his suffering up to the time of bringing the suit, also alleged that he is permanently maimed and injured and will always continue to suffer as above stated and will always be incapacitated for the performance of manual labor. The second count is very similar, and the remaining counts contain partial allegations on that subject. There is however one serious objection to this instruction. Appellee was eighteen years of age when the accident happened. This instruction would permit him to recover for the loss of his wages during the rest of his minority. There is no proof that he has no living father or that he has ever been emancipated. So far as we can find from the proofs, his father may be entitled to his wages during his minority. He testified that he received a certain sum per week, but he may be turning all this over to his father for aught that appears. If his mother is his only living parent or if for any reason his father has permanently lost the right to appellee’s wages, during his minority, then the mother, having permitted this suit to be brought in appellant’s name, by herself as his next friend, and having permitted him in his declaration to claim the right to recover his future earnings during liis minority, has thereby relinquished her right to claim such earnings. Chicago Screw Co. v. Weiss, 203 Ill. 536; American Car & Foundry Co. v. Hill, 226 Ill. 227. But for lack of proof that his father is dead or has in some way been deprived of the right to recover appellant’s future earnings, we are of opinion that instruction No. 3 was properly refused. Instruction No. 5 was to the effect that if the jury found for plaintiff, it was not necessary that any witness should have expressed an opinion as to the amount of his damages, but the jury could make such estimate from the facts proven in connection with their experience in the affairs of life. This instruction, which was fuller than we have stated, has often been approved. North Chicago St. R. Co. v. Fitzgibbons, 180 Ill. 466; Richardson v. Nelson, 221 Ill. 254; Keokuk & H. Bridge Co. v. Wetzel, 228 Ill. 253. In Bichardson v. Nelson, supra, plaintiff was a minor, and that objection was presented to another instruction, but it was not suggested that it could affect the instruction now before us. Said instruction No. 5 should have been given.

Appellant has lost portions of three fingers of his right hand, as above stated, and will be deprived of the perfect use of that hand for the rest of his life and has necessarily suffered pain. He had been working for appellee about two years. He began work there at $7 per week and his wages had been raised several times, and he had been notified that, beginning the day following the accident, he would receive $15 per week. His evidence shows him to be a bright young man. We are of opinion that the award of $500 was so inadequate, even excluding his future earnings during minority, that a new trial should have been awarded him on that ground. Appellee contends that he was not entitled to recover at all, but appellee did not assign cross errors and we must assume that the jury were warranted in finding a verdict that defendant was liable. The judgment is therefore reversed and the cause is remanded for a new trial.

Reversed and remanded.


text:
      Victor H. Dumbeck, Appellee, v. Mary Walsh, Appellant.
    Gen. No. 5,745.
    1. Appeals and ebbobs—when errors are waived. Errors not argued on appeal are waived.
    2. Appeals and ebbobs—variance. An alleged variance between the bill of particulars and the evidence is not reviewable where the bill of particulars is not contained in the bill of exceptions.
    3. Statute of fbauds—promise to pay written order. Where defendant orally accepts a written order to pay plaintiff, drawn on her by a firm to whom she is indebted, and promises orally to pay plaintiff the amount specified, such promise is not within the statute of frauds.
    . 4. Bill and notes—acceptance of hill of exchange. Under Sec. 131 of the Negotiable Instruments Law the acceptance of a bill of exchange must be in writing.
    5. Contbacts—promise to pay written order. Where defendant orally accepts a written order to pay plaintiff which specifies it is to serve as a receipt drawn on her by contractors to whom she is indebted for building, and retains the order under an oral promise to pay until it is too late to enforce a mechanic’s lien and refuses to return it, she is liable to plaintiff on her promise to pay.
    Appeal from the Circuit Court of Rock Island county; the Hon. Fbank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 12, 1913.
    Shallberg & Harper, for appellant.
    H. M. McCaskrin, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Appellee sued appellant and her husband before a justice of the peace in Bock Island county and had a judgment, from which the defendants appealed to the circuit court, where during a jury trial, the suit was dismissed as to the husband and there was a verdict and a judgment for appellee against appellant for $40, from which defendant below appeals. One ruling on the admission of evidence and one ruling on an instruction are questionable, but those rulings are not argued as incorrect in appellant’s brief and are therefore waived.

Appellant contends that the case alleged in the bill of particulars and the case appellee sought to prove are entirely different, and that for such variance the judgment must be reversed. The bill of particulars is not contained in the bill of exceptions and therefore it will not be considered. Star Brewery v. Farnsworth, 172 Ill. 247, and cases there cited. The supposed variance is therefore not shown by the record.

Appellee introduced in evidence a written instrument, dated “10-12-1907” addressed to appellant, and signed by H. S. Cox and Son, the body of which is as follows:

“Please pay Victor Dumbeck forty dollars ($40.00) for paint used on your house and this shall be your receipt.” Appellant contends, first, that she never accepted the order and therefore that she is not liable thereon. And, second, that if she accepted it, such acceptance was oral only and on that, account she is not liable thereon because (1) it is a promise to pay the debt of another and is void under the Statute of Frauds because not in writing, and (2) it is a bill of exchange and to make her liable thereon the acceptance must have been in writing, under Section 131 of “The Negotiable Instruments Law.”

Appellee was a druggist and sold paints. Appellant owned a lot and a dwelling house thereon and was building another house on the same lot. Cox & Son had the contract to build and paint the house. The house had been erected before this order was issued. Appellee had sold paint to Cox for this house, but he delivered it at the store and did not follow it afid does not know that it went to this house, as Cox had other like contracts for other buildings owned by other people. Appellant’s husband acted as her agent concerning this property. Appellee introduced proof showing promises by both appellant and her husband to pay this order, and that they retained the order nearly five months, and that appellee asked them to give it back so that he might obtain another order on some other person and that appellant and her agent refused to surrender it to appellee and said they wished to hold it till they had settled with the contractor. Appellant denied that she ever promised to pay it. Her husband did not deny that, acting as his wife’s agent, he promised to pay it, but denied that he kept it near so long as appellee claimed. Appellant admitted that when this order was presented, she was owing Cox & Son, but that she did not know how much she then owed them, but did not think it was $40. She testified that Cox told her the paint was on the premises but that she was unable to find it and that there was then no paint on the house or on the premises. Her husband testified that when the order was presented, the house was partly painted. There were other discrepancies in the testimony. There is therefore evidence that appellant and her husband as her agent each promised to pay the amount of this order to appellee at a time when she owed Cox & Son a sum of money, the amount of which she does not know, and that she and her husband held the order five months and refused to return it sooner and that before this suit was begun they had settled with the contractor without paying appellee the $40 as agreed.

This oral promise is not void under the Statute of Frauds, for the reason that when it was made appellant held a fund belonging to Cox & Son, the drawers of the order. That fact distinguishes this case from Chicago Heights Lumber Co. v. Miller, 219 Ill. 79, relied upon by appellant. If this order is a bill of exchange, its acceptance must be in writing, under the act above cited, to render appellant liable thereon. There is something more in this case than a mere presentation of the order and a verbal acceptance. It was retained under a promise to pay until it was too late to enforce a Mechanic’s Lien. "When its return was demanded by appellee, that return was refused.

There were promises to pay the money upon a settlement with the contractor. Appellant had the funds and settled with the contractor. There was more than a bare acceptance of the order. There was an express promise to pay appellee $40 when appellant settled with Cox. The case stands as if appellee had filed a declaration containing one count on the order and. its acceptance and another count which charged that appellant, being indebted to Cox & Son, promised to pay appellee $40 out of the money which she owed Cox and at the request of Cox, which $40 was to be paid upon the indebtedness of Cox to appellee. "We are of opinion that on the latter ground, at least, recovery should be sustained.

The judgment is therefore affirmed.

Affirmed.


author: Mr. Justice Carnes

text:
    Mary McDonald, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 5,643.
    1. Railroads—measure of damages for fire. In an action for damages from fire under section 1% of the Act of 1874, requiring railroad companies to keep their right of way clear from dead grass, dry weeds and other combustible materials, the measure of damages is not the difference in value of the land before and after the fire, but the extent of the damage done to timber, grasses and fences, etc., without reference to the soil, to the value of the use of the land in the condition it would have been but for the fire.
    2. Appeals and errors—weight of testimony not considered where new trial is granted. Where the trial court has properly refused to direct a verdict for the defendant because there is some testimony tending to support the declaration, but where a new trial must be granted because of error in the measure of damages, the appellate court will not consider the weight of the evidence.

      Appeal from the Circuit Court of Jo Daviess county; the Hon. Richabd S. Fabrand, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 12, 1913.
    Hodson & Campbell, for appellant; W. S. Horton, of counsel.
    Kebz & Dillon, for appellee.
   Mr. Justice Carnes

delivered the opinion of the court.

On March 30, 1910, a fire burned over appellee’s farm lands adjacent to appellant’s right of way in Jo Daviess county. This action was brought to recover damages for loss thereby occasioned. The case was tried on a declaration counting entirely on section 1% of the Act of 1874 (Fencing and Operating Eailroads), maldng it the duty of all railroad corporations to keep their right of way clear from all dead grass, dry weeds, or other dangerous combustible material. The issue presented and tried was whether appellant suffered quantities of combustible material to accumulate and remain on its right of way, by means whereof fire, emitted from an engine of appellant, or of a lessee of appellant, ignited said material and spread upon the farm of appellee, doing the damage complained of which was alleged to be the destruction of certain timber, meadow land, pasture land, fences, and other property of appellee. There was a verdict and judgment for appellee.

There is no question under the evidence but appellee suffered a loss from fire injuring several acres of growing oak timber, several acres of grass land and a fence upon the premises. There was great conflict in the evidence as to the extent of the injury and the amount of damage. There was some evidence tending to show that the fire originated as charged in the declaration. The court did not err in refusing to direct a verdict for the defendant. But as this case must be tried by another jury, we forbear any discussion of the weight of the evidence.

Appellee’s case was tried on the theory that the measure of damages was the difference in value of the land before and after the fire in question. Appellant objected to the evidence based on this theory of the law, and has duly preserved and presented the question for our consideration. Appellee should have proven the extent of the damage done to her timber, meadow land, pasture land and fences injured or destroyed. Although the timber and grasses were a part of the realty they had a value which can be ascertained without reference to the soil on which they stood and the recovery should be of their value and not for the difference in the value of the land before and after such injury or destruction. If, in fact, the growth of grass was prevented, either in the meadow or pasture, the damages were measured by the value of the use of the land in the condition it would have been but for the fire. Some fence posts were burned and the amount of the injury so occasioned can be readily determined by competent evidence directed to the value of the fence and the amount of injury it sustained. The law governing the question of the measure of damages as applied to this case is clearly stated in Jones v. Sanitary Dist. of Chicago, 252 Ill. 591. That decision was not reported until about the time, perhaps after, this case was tried and probably did not come to the attention of the trial judge. It will however, furnish a sufficient guide on the question of the measure of damages in another trial.

The judgment of the Circuit Court is reversed and the cause remanded.

Reversed and. remanded.


text:
    Joseph Vogrin, Appellant, v. American Steel & Wire Company, Appellee.
    Gen. No. 5,658.
    1. Master and servant—count failing to charge performance of duty at time of accident defective. Plaintiff alleged that he was in the employ of defendant as an oiler, that he was “then and there” required to and did, in the discharge of his duties, pass through and in and about defendant’s mills, that it was defendant’s duty to exercise ordinary care so as not to expose plaintiff to unnecessary danger, but that defendant so carelessly constructed and operated said mills that in consequence of such carelessness, plaintiff, while passing along one of said mills and across a runway, in the exercise of ordinary care for his own safety, was struck, etc. Held, that the declaration was fatally defective, since the words “then and there” refer to the time of employment generally, and the count fails to state, even defectively, that plaintiff was in the discharge of his duty on the runway at the particular time of his injury, or that defendant knew, or ought, or might have known, in the exercise of ordinary care, that plaintiff was on the runway in the performance of his duty at such time.
    2. Master and servant—discharge of duty at time of accident not presumed. The fact that plaintiff was in defendant’s employ raises no presumption that his employment required him to be in a place where he was injured, or that he was then in the discharge of his duty, as he might have gone there without permission or notice to defendant.
    3. Action on the case—what constitutes actionable negligence. In case for personal injuries, it is necessary to aver and prove three elements to make out a cause of action: '(1) The existence of a duty on the part of the defendant to protect plaintiff from the injuries of which he complains; (2) a failure of the defendant to perform that duty; and (3) an injury to the plaintiff, resulting from such failure.
    4. Action on the case—when declaration is not cured by verdict. The absence of any one of the three elements which unitedly constitute actionable negligence in the declaration, renders the declaration insufficient to sustain a judgment, even after verdict or sufficient proof.
    5. Pleading—charging duty, conclusion of law. The averment that it was defendant’s duty to exercise care in operating a runway, or doing certain things, states only a conclusion, and the pleader must state facts from which the law will raise a duty and show an omission of such duty and a resulting injury.

      6. Limitations—amended count, stating new cause of action. Counts filed within the statutory period failed to state in words or substance that plaintiff was in the discharge of his duty at the particular time and place of his injury, or that defendant knew or should have known of his being at such place of danger at the time. Held, that amended counts, filed after the running of the statute, charging that plaintiff was then “in the discharge of his duty as an oiler,” state a new cause of action and that recovery is barred.
    Appeal from the Circuit Court of Will county; the Hon. Dorrance Dibble, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 12, 1913.
    Babb, McNaughton & Babb, for appellant.
    Snapp & Heise and John B. Cochean, for appellee; Knapp & Campbell, of counsel.
   Mr. Justice Carnes

delivered the opinion of the court.

■ Appellant was injured while in the employ of appellee on March 18, 1909. This suit was brought to recover for such injury. Within two years there was filed first, a declaration consisting of one count and after-' wards five additional counts, demurrers were sustained to the declaration and additional counts; and after more than two years had elapsed appellant took leave to amend and filed what is called an amended declaration, but it consisted of the first three of said additional counts with the phrase hereinafter mentioned inserted. Appellee filed pleas of the General Issue and Statute of Limitations to each count so amended, the court overruled demurrers to the pleas of the statute. Appellant stood by his demurrers and final judgment was entered from which this appeal is prosecuted.

The only question argued is whether the original declaration or either of the five additional counts filed within the two years stated a cause of action; or as appellant says in his brief “The sole question presented by this record for review is: Does the amended declaration (the same having been filed more than two years after the cause of action accrued) state a new cause of action or is the same simply a re-statement of the cause of action defectively stated, in the original declaration and additional counts thereof. ’ If the amended declaration does state a new cause of action there is no question but the pleas of the Statute of Limitations were good- and the demurrers thereto properly overruled. This is well settled by oft repeated decisions .of our Supreme and Appellate courts so familiar to the profession that we need not stop to point out the cases.

The first count of the amended declaration is the first of the five additional counts filed within the two year period and its averments so far as material to the question here are, without the clauses enclosed in brackets, as follows: “Said defendant was engaged in the business of manufacturing nails, wire and other metallic products * * * and was possessed of and using and operating certain mills, shops, factories, machinery, runways and premises, wherein and about which said defendant manufactured and moved about said nails, etc.

* * * “Plaintiff-on the day aforesaid and for some time prior thereto.....was in the employ of said defendant as an oiler, and as such oiler, was required to and did in the discharge of his duty, pass through, along, in and about said mills, shops, factories, runways and premises of the said defendant; that it thereupon became and it was the duty of said defendant, in designing, planning, locating, constructing, using, managing and operating said mill, shops, factories and runways to exercise ordinary care and caution so as not to expose said plaintiff and other employes in and about said mills, shops, factories and runways to unnecessary hazard and danger. Tet the said defendant ............so carelessly planned, located, designed, constructed, used, managed and operated said mills, shops, factories, runways and premises that by, through and in consequence of the carelessness and negligence of the said defendant in that behalf said plaintiff while passing by and along one of said building, mills, factories and over and across one of said runways on said premises (in the discharge of his duty as an oiler) in the exercise of ordinary care and caution for his own safety was struck and hit with a large bundle of wire,” etc. (Then follows statement of injury, damages, etc.)

The clause in brackets is the only amendment of this count, and the other two counts of the amended declaration were changed only by the insertion of this same clause. The amendment added the statement that the plaintiff was at the time of his injury at the place in question in the discharge of his duty as the servant of the defendant; neither the original declaration nor any of the five additional counts differ materially from the count above quoted from, so far as the question under consideration is concerned. It appears in other counts that the injury was occasioned by plaintiff catching his foot between a plank and rail on said runway and while so caught, a large bundle of wire that was being rolled down said runway struck and injured him? In the original declaration after reciting the business of the defendant and plaintiff’s employment in the service of defendant on the day of the injury “and for a long time prior thereto as an oiler” it is averred that as such oiler said plaintiff in the discharge of his duty was then and there required to pass through, along and about said buildings, mills, runways, etc. This averment was substantially the same as would be the one in the count just quoted from with the words “then and there” inserted before the words “required to pass.” In each of the remaining four additional counts that same form as in the one first quoted is followed i. e., the words “then and there” were omitted. The state-' ment in substance is that the plaintiff was at the time of his injury and for some time prior thereto in the employ of the defendant and was required in the discharge of his duty to pass from place to place over the entire premises of the defendant. Appellant calls our attention especially to these words then and there used in the original declaration; if they mean or can be read as meaning the time and place of the injury the count was not defective in this respect, and no question could be raised but the amendment merely restates in different language the allegation of the declaration; but the word then plainly refers not to the time of the injury but to the whole time of plaintiff’s service and does not mean more than the allegation in each of the five amended counts, and amounts only to an averment that in the course of plaintiff’s duties as the servant of defendant during the entire time of his service he had occasion to pass over said runway. There is no averment direct or by inference that in the discharge of plaintiff’s duty he often passed over said runway. He may have passed over it once a day or once a month or even once in the entire period of his service and the averment still be true. If we indulge inferences in favor of the pleader, instead of against him, the most that can be said is that in the course of plaintiff’s employment he had occasion from time to time to pass over said runway which seems to us to fall short of even a defective statement that plaintiff was at the time of his injury upon the runway “in the discharge of his duty as an oiler.” If this be so then the amended declaration to which the Statute of Limitations was plead contained the first statement, either good or defective, that the plaintiff at the time of his injury was on the runway in question while in the performance of his duty to the defendant. As his case was stated before the amendment he may have been there of his own volition for some purpose personal to himself and entirely unconnected with any dirty he owed his employer. There is no averment in the original declaration and counts that defendant knew, or might or ought to have known that the plaintiff was on the runway at the time of the injury.

The decision of this case seems to us controlled by the cases of Mackey v. Northern Milling Co., 210 Ill. 115, and McAndrews v. Chicago, L. S. & E. R. Co., 222 Ill. 232. In the Mackey case, supra, which was one of master and servant and very similar in its facts to the one at bar, the count in the first declaration held bad, and not even a defective statement of a cause of action recites that the defendant was the owner of or using and operating a certain mill and in connection therewith used a side-track for the purpose of loading and unloading material, that Thomas Mackey, deceased, was employed there by the defendant and on the 5th day of March, A. D. 1905, was lawfully upon the said track of the defendants and while so lawfully there and in the exercise of due care the defendant pushed an unloaded car upon him without notice or warning and crushed him, etc. The court said “It is not stated that said Mackey’s duties necessarily required him to be on the side-track at the time of the accident, or that he was performing any duty he owed appellee, or that appellee had any reason to believe or suspect that said Mackey would be there in a position of danger. The fact that Mackey was in appellee’s employ raises no presumption that his employment required him to be in the place where he received his injury. For aught that appears he may have gone there of his own volition and not in the discharge of any duty, or even gone there without permission, and certainly without notice to appellee, or without any reasonable ground for appellee suspicioning that he might be there.” In the case at bar, there is the additional allegation that it was the duty of the defendant in operating said runways to exercise care not to injure plaintiff. But both the Mackey and McAndrews cases, supra, hold that it is not sufficient in the declaration to allege that it is the duty of the defendant to do certain things as that would be but the averment of a conclusion. The court in the McAndrews case supra, said, quoting from Schueler v. Mueller, 193 Ill. 402, “It is not sufficient in a declaration to allege generally the duty of the defendant, but the pleader must state facts from which the law will raise a duty, and show an omission of the duty and a resulting injury.” This is a familiar rule of pleading and does not need further citation. The only further distinction of the case at bar from the Mackey case is the averment in the declaration here that plaintiff as an oiler in the discharge of his duty was required to pass through, along and about said mills, runways and premises. It was held in the Mackey case, supra, that no presumption that Mackey was in the discharge of his duty at the time he was injured is to be indulged from the fact that he was in the employ of the defendant. Would the court have held there was such presumption had the declaration contained the added averment that Mackey sometimes in the course of his service, went on the track in the performance of his duty? It seems to us dear that this added averment is not sufficient to distinguish the case at bar from the Mackey case, and that the original declaration and five additional counts filed within two years of the date of the injury must be held not to state even defectively, that appellant was on the runway in question in the discharge of any duty he owed appellee. If there had been some averment that the defendant knew or might have known in the exercise of ordinary care that the plaintiff was at the time in question, in the performance of his duty at the place in question, the cases might be distinguished as was done in O’Rourke v. Sproul, 147 Ill. App. 609; but the declaration contains no such averment. In the McAndrews case, supra, the court said that in actions on the case for personal injuries “It is necessary to aver and prove three elements to make out a cause of action:

(1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) a failure of the defendant to perform that duty; and (3) an injury to the plaintiff resulting from such failure. When these three elements concur they unitedly constitute actionable negligence, and the absence of any one of these elements, either in the declaration or proof, renders the declaration insufficient to sustain a judgment for negligence, even after verdict or the proof to establish a cause of action involving actionable negligence.”

This definition of the essential elements, of a cause of action in negligence cases has been extensively quoted and approved in subsequent cases, among them Bahr v. National Safe Deposit Co., 234 Ill. 101, where many authorities in support of conclusions we have heretofore stated are cited and discussed. Appellant’s original declaration and five additional counts fail to state facts that show the existence of the duty mentioned in clause No. 1 of the rule, because it does not state in words or substance that the defendant knew or ought to have known that the plaintiff was in the place of danger at the time in question and if it is not charged with such knowledge it was under no duty to look out for or warn him.

Appellant argues that the original declaration and five additional counts filed within the two year period would have been good after verdict, and if that be so that they should be held, at least, to defectively state a cause of action and be capable of amendment without being open to the objection that a new cause of action is stated by the declaration so amended. Our attention is called to authorities tending to support this position that ought to be noticed and analyzed in this opinion but for the fact that the questions here involved seem to us to be so clearly settled by our Supreme Court, as before pointed out, that it is unnecessary to review the cases supporting the conclusion reached by that court.

We are of the opinion that this case in the question presented for review cannot be distinguished from the the case of Mackey v. Northern Milling Co., supra; that the amended declaration stated a new cause of action and therefore was well answered by the pleas of the Statute of Limitations. Therefore the court did not err in overruling demurrers to them and entering judgment for defendant, and its judgment is affirmed.

Affirmed.

Mr. Presiding Justice Dibble took no part in the decision of this case.