text:
    H. P. Madrey, Appellee, v. Henry Meyers, Appellant.

      Instructions—effect of clerical mistake in. The omission of the word “if,” when clearly a clerical error not materially affecting the meaning of the instruction, is not ground for reversal.
    Action commenced before justice of the peace. Appeal from., the City Court of Alton; the Hon. James E. Dunnegan, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    Boynton & Meriwether, for appellant.
    J. A. Lynn and John J. Brenholt, for appellee.
   Mr. Justice Myers

delivered the opinion of the court.

Appellee brought suit against the appellant in a justice court to recover a bill of $13.46 for wall paper sold to appellant. The defendant filed a claim of set-off, $76, for two months’ rent of premises occupied by plaintiff under lease from defendant. The justice gave the defendant judgment for $62.54, from which the plaintiff appealed to the City Court, where the case was tried by a jury, resulting in a verdict and judgment for the plaintiff for the amount of his claim, $13.46. The defendant appealed to this court.

The evidence proves or tends to prove that appellee held certain premises under written lease from appellant. The lease was for a term of five years from December 1, 1904, at a rental of $38 a month. In July, 1905, appellee complained that the building needed repairs and threatened to leave the premises unless there was a reduction of rent. Appellant reduced the rent and thereafter collected $35 per month until the first of February, 1906, when appellee moved out, except as to a part of his goods, which, by permission of appellant, were left in the store. On or about February 8th appellant received the key to the building, which he thereafter retained. About the first of April appellee paid $3.75 as an agreed balance in full settlement of rent and removed his remaining goods from the building, which had prior thereto been leased and possession given by appellant to the Alton Furniture Company. In May appellant bought wall paper of appellee to the amount of $13.46, for which the verdict and judgment was rendered.

The appellee claimed and testified that there was an agreement, settlement and understanding that terminated his tenancy February 1, 1906; that he paid what was due; that he surrendered the premises, and that appellant took possession thereof. Appellant contradicts all this by his testimony, and in the circumstances shown by evidence we find corroboration of one or other party, according as we allow or withhold credit to the evidence introduced. In this conflict of evidence it was for the jury, and not the court, to determine the facts in issue, and the verdict is therefore conclusive, unless there was prejudicial error in the proceedings.

. We find no error in the court’s rulings in giving and refusing instructions that would justify a reversal of the judgment. The omission of the word “if” in the introductory part of appellee’s first given instruction does not materially affect the meaning, and was so palpably a mere clerical mistake that the jury could not have been misled by it. The- second instruction is subject to criticism, but as there was no dispute as to the amount of appellee’s claim for paper sold the appellant, the instruction worked no harm. The proposition of law contained in appellant’s third instruction, refused, had no application under the issues in this case, and the court did not err in refusing it. The instructions, considered as a whole, sufficiently and properly direct the jury as to the law applicable under the issues, and we find nothing-in form or substance calculated to prejudice appellant. There is no discussion of other errors assigned and no call for their consideration by this court. The judgment of the City Court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Myers

license: Public Domain

text:
    Matgalina Asher, Plaintiff in Error, v. East St. Louis & Suburban Railway Company, Defendant in Error.
    1. Passenger and gabbier—obligation of latter to former. A carrier owes to a passenger the duty to exercise the highest degree of care, skill and diligence consistent with the practical operation of its road.
    2. Passenger and carrier—what establishes prima facie case in action for negligence. In an action for personal injuries by a passenger against a carrier a prima facie case is made by proof of the relation of passenger and. carrier, the accident and the injury.
    3. Instructions—particularity required of. Instructions should not be given which are ambiguous and uncertain in their phraseology and calculated to mislead.
    Action in case for personal injuries. Error to the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the August term, 1907.
    Reversed and remanded.
    Opinion filed March 18, 1908.
    Keefe & Sullivan, for plaintiff m error.
    Schaefer, Farmer and Kruger, for defendant in error.
   Mr. Justice Myers

delivered the opinion of the court.

This is an action in case brought by the plaintiff in error against the defendant in error,-an interurban railway company, to recover damages sustained by the plaintiff while a passenger on one of defendant’s cars en route from Lansdowne to Bast St. Louis on March 8, 1906. The railway was owned and operated by the defendant and the car in question at the time of the injury was in charge of the defendant’s servants. The declaration charges that “the defendant, through its servants in charge of said car, so negligently managed said car that it was caused to be run against and struck by an engine of the St. Louis Terminal Railroad Association, which was crossing the defendant’s track at a point on defendant’s line of railway.

There is substantially no conflict of evidence upon material facts in the case. At a point north of the corporate limits of East St. Louis the defendant’s railway crosses at right angles three railroad tracks of the Terminal Railway Association. From the north the first track is called the inbound track, the second or middle is the outbound track and the third is a switching track. South of these tracks 150 feet the defendant’s road crosses at right angles the track of the Southern Railway Company. Approaching the Terminal Railway crossing from the north there is an ascending grade of forty-two inches in forty-five feet. When the car on which the. plaintiff was riding as a passenger coming from the north, neared the crossing, it stopped about twenty feet from the north inbound track of the Terminal Railway and the conductor, as was customary and his duty, left the car, went forward to inspect conditions and “flag” the crossing. He saw a train coming on the outbound track, running at the rate of six miles an hour, the • engine-head not more than five or six car lengths— probably 200 feet—distant. He signaled the motorman to move forward and take the crossing. Obeying the signal, the motorman started the car. When within a few feet of the nortbound track the trolley left the wire, but the momentum of the car moved it forward across the north track onto the middle track, where it was struck by the Terminal engine, shoved along the Terminal track for some distance and tilted at an angle of forty-five degrees. That the plaintiff was a passenger; that the car was under the management and operation of the defendant’s servants; that the collision and injury was caused by an attempt to move the car over the crossing in front of a moving train, and that at the time of the collision the plaintiff was in the exercise of due care for her own safety, are facts that may not be disputed by the evidence of record.

The general issue was filed and the case was tried by a jury, which rendered a verdict for the defendant. The plaintiff, by writ of error, brings the record to this court for review, and asks a reversal of the judgment, chiefly upon two grounds, (1) that the verdict is against the manifest weight of evidence, and (2) that the rulings of the court in giving instructions for the defendant were against the law and the manifest weight of the evidence. We are constrained to hold with the plaintiff upon both contentions, but as the questions of fact are again to be submitted to a jury, we refrain from a discussion of the evidence further than is necessary to make clear our opinion as to the law. At the time and place of the collision which caused the injury, the plaintiff was a passenger on the defendant’s road and the law required that the defendant should exercise the highest degree of care, skill and diligence consistent with the practical operation of the road for the protection and safety of the plaintiff and other passengers. Any less degree of care, skill and diligence by any of the defendant’s servants would amount to negligence, for which, if injury resulted, an action would lie. The declaration in this case charges negligence, and it was for the plaintiff to prove negligence as above defined in making out her case. In this, as in all other actions founded upon negligence, the burden to establish by evidence prima facie a right to recover was upon the plaintiff. The burden to establish and maintain the right to recover rests upon the plaintiff throughout the trial. Chicago Union Tract. Co. v. Mee, 218 Ill. 11. Under a rule of evidence applied in this kind of action, “when the accident proceeds from an act of such a character that when due care is taken in its performance no injury ordinarily ensues from it, or where it is caused by the mismanagement of a thing over which the defendant has immediate control, or for the management or construction for which it is responsible,” a prima facie case is made out by proof of the accident, the injury, reasonable care of the plaintiff, and the circumstances embraced by the rule. Chicago City Ry. Co. v. Rood, 163 Ill. 482. To that point the burden is upon the plaintiff, after which it will be presumed that the defendant was negligent, and the burden is then said to shift and rest upon the defendant to explain, overcome or rebut the presumption. The effect of the evidence in such case and under the rule mentioned is to prove the defendant’s negligence and establish prima facie the plaintiff’s right to recover. It is a salutary rule springing from necessity in the administration of justice, and the reason for it, in any case, justifies its application in this case. There is no dispute in argument that the rule mentioned obtains and may be applied in a proper case, the only contention being, on the one side, that the rule is applicable under the facts in this case, and on the other, that it is not. numerous authorities are cited and discussed and the argument is directed chiefly to the question whether or not the rule may be invoked in support of plaintiff’s cause before the jury, and in argument here for a reversal of the judgment. We do not deem it necessary to review at length the authorities cited, as we find therein no conflict in doctrine or principle. We quote above the rule under discussion as we find it formulated in Chicago City Ry. Co. v. Rood, supra, because it is there more amplified than in some of the other cases cited, and because of the fact that opposing counsel in their argument rely upon that case as supporting their several contentions. In discussing the rule in the Rood case, the court says: ‘‘ The presumption in question comes from the nature of the accident and the circumstances surrounding it, rather than from the mere fact of the accident itself. These circumstances must tend to connect the carrier with the cause of injury. If the circumstances surrounding the accident are such.as to indicate that it would not probably have occurred if the company had been in the use of suitable machinery or safe apparatus, or if it had employed proper and competent servants to manage such machinery or apparatus, then the burden of proof will be shifted to the carrier.” And again: “It is reasonable that a presumption of negligence should arise against the carrier in cases where the cause of the accident is under its control, because it has in its possession the almost exclusive means of knowing what occasioned the injury and of explaining how it occurred, while the injured party is generally ignorant of the facts.” Clearly the evidence in this case brings it within" the doctrine, and the reasons therefor as we find it in the opinion above quoted. The collision “would not probably have occurred,” the accident would not probably have happened, the plaintiff would not probably have been injured, had the defendant been in the use of safe apparatus or if it had employed proper and competent servants to manage the machinery and apparatus which it had in use. The moving of the car to and upon the crossing was entirely within control of the defendant’s servants. Whether the conditions for such crossing were safe or otherwise was for the conductor to ascertain and determine in advance of the attempt to cross, and all that was done or to be done in the movement of the car before and after the trolley left the wire was entirely under the control of the defendant’s servants, and the consequence of what they did, the collision, would not probably have occurred had they exercised that degree of care, skill and diligence required by the law for the safety of the helpless occupants of the car. It is wholly immaterial, in this action, which of the trains had the right of the crossing under the law applicable to contesting such right, nor does it affect the plaintiff’s right to recover that the servants of the Terminal Association were negligent, if the injury she sustained could have been prevented had the defendant’s employes exercised that degree of care which the law requires. The Terminal Association, no less than the defendant, may he held to the same degree of care respecting passengers endangered by collision at the crossing, but in an action against either it is no defense that the other is also liable.

Complaint is made of the defendant’s given instruction, which follows:

“The mere fact that an accident occurred, and that the plaintiff was injured, of itself, raises no presumption of negligence or liability on the part of the defendant for such injury. Negligence, like any other material fact, must be alleged and proved by the plaintiff as alleged, by a preponderance of the evidence, and even if you believe, from the evidence, that the plaintiff received the injuries complained of, yet if you further believe, from the evidence, that the plaintiff has not proved by a preponderance of the evidence that she was injured by the negligence of the defendant, as charged in her declaration, then the plaintiff cannot recover, and your verdict must be for the defendant.”

It is said that by this instruction the jury were told that no presumption obtained in favor of the plaintiff and that the court might have instructed the jury that there was a presumption of negligence and that the burden was on the defendant to rebut it. The suggestion of what might have been done furnishes an answer to the criticism made. No such instruction was asked or refused, and the plaintiff is not in position to complain that it was not given. The giving of this instruction was not error. It states correctly the law applicable in this case. As we have already stated, the burden was upon the plaintiff to prove the negligence alleged, in this case to prove the facts -<nd circumstances from which, under the rule res ipsa loquitur, a presumption of negligence would arise, calling for proof and explanation on the part of the defendant. It was for the jury to determine the facts which give rise to the presumption, and, under instructions by the court, to apply the rule and give effect to the presumption. It was not for the defendant or. the court, without request, so to instruct the jury. Instruction No. 12 is erroneous and misleading in that it tells the jury that if the collision “was caused by reason of the trolley wire or trolley pole being out of repair or for any other reason outside the negligence charged in plaintiff’s declaration,” they should find for the defendant. The defendant is charged with negligence in the management and operation of the car, and a defective condition of the trolley might reasonably be attributed to the management or to the acts of the servants after the defect was known, and are questions of fact within the allegation of the declaration to be considered by the jury. The instruction should have been refused. So, also, instruction No. 13 should have been refused. It does not state correctly the rule as to the degree of care required, and improperly invokes the doctrine of assumed risk. No. 14 is subject to the criticism made, though not of sufficient gravity to reverse the judgment, were the record otherwise free from error. No. 15 is ambiguous, uncertain and misleading. For reasons already given, in considering objections to instruction No. 8, it is held that it was not error to give instruction-No. 2. No. 16 is not subject to the objection made, though it may be criticised for improperly assuming that the collision was due to defects in the trolley or machinery.

For the errors indicated, the judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


text:
    Emma Jones et al., Appellees, v. Supreme Lodge Knights of Honor, Appellant.
    1. Res judicata—when judgment of sister state not. The voluntary dismissal before judgment by the plaintiff of an action instituted in another state, from whatever motive, is not a bar to another action in this state upon the same cause of action.
    2. Statute of limitations—tohen "benefit certificate within ten-year provision. Held, that the benefit certificate sued on in this case was not subject to the doctrine that where an agreement, in writing is so indefinite that parol testimony is required to make it complete it will be construed as an oral contract subject to the Statute of Limitations.
    3. Fraternal benefit society—when administrator of deceased beneficiary need not be joined in an action upon certificate. Upon the death of one of the beneficiaries named in an insurance certificate, the surviving beneficiary may bring an. action on the certificate without joining the administrator of the deceased beneficiary.
    4. Fraternal benefit society—who may waive forfeiture for non-payment of assessment. The condition of forfeiture and suspension upon failure to pay assessments and dues promptly may be waived by officers authorized to receive and forward the same.
    Assumpsit. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    Schaefer, Farmer & Krueger and Frederick H. Bacon, for appellant.
    Cullop & Shaw and Kramer, Kramer & Campbell, for appellees.
   Mr. Justice Myers

delivered the opinion of the court.

This is an action in assumpsit, brought in the Circuit Court of St. Clair county by appellees against appellant, to recover the amount alleged to be due upon a benefit certificate in the sum of $1,000, issued by appellant to Joseph L. Jones, December 20, 1888. Joseph L. Jones died March 10, 1901. Belle Jones, the beneficiary named in the certificate and wife of Joseph L. Jones, died prior to March 10, 1901. He had no children and left surviving him as his only heir his father and mother, a sister, and three brothers. The father and mother died before the commencement of this suit, which is prosecuted by the r sister and brothers, appellees herein. Appellant is a fraternal benefit society and its by-laws provide that if the beneficiary die before the insured, and the insured leaves neither widow nor children, the. amount of the certificate shall be paid to his heirs. In bar of the action the defendant pleaded: first, the general issue; second, that the deceased was not a member of the order in good standing and a contributor to the widow and orphan’s benefit fund, at the time of his death; third, that deceased in February, 1901, voluntarily severed his connection with the order; fourth, that the plaintiffs, together with the now deceased father and mother, instituted their action against defendant in the Circuit Court of Knox county, Indiana, on the same benefit certificate now sued on, that a trial was had and judgment rendered in favor of the plaintiff for the amount of the certificate, that the- defendant appealed to the Appellate Court of Indiana, which reversed the judgment of the Circuit Court and remanded the cause for further proceedings consistent with the opinion, wherein it was decided and the conclusions of the court announced, that the evidence was not sufficient to support the verdict and judgment in the Circuit Court; that the plaintiff applied to the Supreme Court for a review of the judgment, which was refused; that a mandate and opinion of the Appellate Court was duly certified to the Circuit Court of Knox county and that the judgment therein was set aside, that the plaintiffs afterwards voluntarily dismissed their suit, and that under the Federal constitution and statutes the judgment of the Indiana Appellate Court is a bar to the present action; and, fifth, the Statutes of Limitations. The defendant also filed an additional plea of former adjudication in substance the same as the fourth plea except that it concludes with the judgment and opinion of the Appellate Court, and contains no averment of the remanding order and proceedings in the Circuit Court subsequent thereto. The plaintiffs filed demurrer to the fourth plea, the additional plea, and the plea of the Statutes of Limitations, and the demurrer was sustained. The defendant excepted and elected to stand by the pleas. Further pleading culminated in a joinder of issues, which were submitted to a jury for determination. The jury returned a verdict for the plaintiffs for $998.25, the amount of the certificate less one assessment due and unpaid at the time of the death of the insured. A motion for a new trial was overruled and judgment on the verdict rendered from which the defendant appealed.

It is first contended by counsel for appellant, that the trial court erred in sustaining the demurrer to its pleas of former adjudication, and in support of this contention invokes the Federal constitution of the statutes, which require that “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” It is urged in argument that under the laws of Indiana and within the averments of the pleas, the rights of the parties in this case were fully determined and finally adjudicated by the Indiana Appellate Court. If that were the result and effect of the trial and proceedings under the law of Indiana and if it is made to so appear by the pleas, the demurrer should have been overruled. So that on this presentation we are to determine the result, the final outcome, the legal effect of what was done in Indiana. In giving full faith and credit to the proceedings we are held to the presumption that the courts, the Circuit no less than the Appellate, acted within and according to the laws of the state of Indiana. It appears from the averments in the fourth plea, that the Appellate Court reversed the judgment of the Circuit Court and remanded the cause for further proceedings and that upon the filing of the remanding order and the Appellate Court opinion, the Circuit Court entered an order setting-aside the judgment, and that afterwards the plaintiffs dismissed their suit. When the judgment was reversed and the cause remanded the rights of the parties had not been finally determined. The suit was pending in the Circuit Court upon the issues made by the pleadings. Whether the Circuit Court was so bound by the opinion of the Appellate Court that it could do nothing but enter a judgment for the defendant, that being the only proceeding consistent with the opinion, was determined so far as concerns Illinois courts, by what was done.' The plaintiffs asked leave to dismiss their suit, and it was so ordered by the court in which the action was pending, the effect of which was to leave the parties in their rights and remedies as though no suit had been commenced. However annoying to the defendant, and though apparently contrary to the spirit of the Federal law, yet by giving full faith and credit to the record and judicial proceedings of the state of Indiana, we are bound to hold that the plaintiffs are not thereby barred in the present action. We are not concerned with the motive which prompted the dismissal of the suit in one jurisdiction and its commencement in another, nor may we challenge the action of the Circuit Court of Knox county in allowing the plaintiffs to withdraw from that court without prejudice to their rights and to again bring- suit in another, and as may hereafter appear, a more favorable forum. If the Circuit Court of Knox county erred in dismissing the suit, as contended by counsel, the Circuit Court of St. Clair county could not so adjudge without transgressing the Federal law which requires the latter court to give full faith and credit to the record proceedings of the former. It is further to be observed that in all the decisions to which we have been referred, the rule giving effect to an Appellate Court opinion limits it to the same case as it is pending in the inferior court or in the higher court on second appeal. To he effective under the rule the opinion must control in the final judgment of that particular case, which judgment, thereafter, may be pleaded in bar of a suit between the same parties upon the same cause of action. If, before final judgment, the suit is dismissed and agqin commenced in the same or another court, it would seem that the opinion could have no binding effect other than as authority to be considered by the court in determining and applying the law generally to the facts in controversy. Gardner v. Michigan Central B. B. Co., 150 U. S. 349. Courts of the United States no less than state courts are bound by the full faith and credit provision of the Federal statutes. Cooper v. Newell, 173 U. S. 555. It follows, therefore, that neither the fourth plea nor the additional plea contains matter of defense available in this action. The court did not err in sustaining the demurrer to the plea of the Statute of Limitqtions. The certificate in this case is clearly a contract in writing and not within the proposition that where an agreement in writing is so indefinite that parol testimony is required to make it complete, it will be treated as an oral contract subject to the Statute of Limitations. Nor do the authorities cited sustain such construction. We find in the certificate and by-laws a complete contract in writing, in which appellant agrees to pay, upon conditions expressed, the sum of $1,000 to the heirs of Joseph L. Jones, the insured.

The third point in appellant’s argument is fully met by the opinion in Supreme Lodge v. Portingall, 167 Ill. 291, where it was held, that upon the death of one of the beneficiaries named in an insurance certificate the surviving beneficiary may bring an action on the certificate without joining the administrator of the deceased beneficiary.

It is further insisted by appellant, that the court should have given the peremptory instruction to the jury to find for the defendant, not because of any dispute in the facts, for there is none, but for the reason that under the law, when applied to the facts, the plaintiffs failed to make out a case. In considering this contention it will be necessary to refer briefly to the evidence upon which the argument is based. It was proved that Joseph L. Jones first became a member of the order in a subordinate lodge at Mt. Carmel, Illinois, in December, 1888, that he afterwards transferred to a lodge at Vincennes, Indiana, that he moved to Knobel, Arkansas, where he died March 10, 1901; that his wife died before his death; that appellees are his heirs at law; that all the monthly assessments to February 1,1901, were paid; that he was in good standing in the order up to the last day of February, 1901; that an assessment, $1.75, due and payable February 28,1901, was not paid or tendered until March 18, eight days after the death of the insured; that during the entire period of membership the assessments against Jones were paid. Sometimes at the end of the month, when due, and sometimes several days after due and always accepted and credited by the subordinate lodge official whose duty it was to receive, credit and forward the assessment, and that the custom, usage and practice in receiving and crediting the assessments were such as to warrant a finding by the jury that prompt payment and the right of forfeiture was waived by the defendant, if the defendant may be held to such waiver by the acts and indulgence of its agent, the subordinate lodge and its official. It further appears in evidence that in January or February Jones proposed or requested the substitution of one Sellmeyer, a creditor, as beneficiary in the certificate, and was informed that this could not be done under the laws, as Sellmeyer was not a relative. Sellmeyer was notified that he could not be made a beneficiary and that the certificate had not been changed. The January assessment was paid by Sellmeyer for Jones. On March 18, 1901, Sellmeyer wrote from Knobel, Ark., to Wagner, the reporter and secretary of the lodge, enclosing draft $1.75 for the February assessment against Jones. In reply Wagner wrote a letter and enclosed receipt for the amount, and also enclosed a letter from the secretary with a blank form for reinstatement, addressed to Joseph L. Jones, in the meantime retaining the draft received from Sellmeyer. Later on, learning that Jones died March 10th, Wagner returned to Sellmeyer the draft received from him, with letter of March 18th.

The constitution of the order provides that “a member failing to pay any assessment required by law, shall stand suspended and shall not thereafter be entitled to the benefit of the Widow and Orphans’ Fund, until he has been duly reinstated in his subordinate lodge in accordance with the laws of the order.” The question now to be decided is, whether or not there is evidence of appellant’s liability. It is insisted by counsel that the failure to pay the February assessment before the last day of the month operated as a complete suspension of Jones’ rights under the certificate, and that the financial reporter of the lodge had no authority to waive the positive requirements of the laws of the order. A strong argument and numerous authorities from other states are presented in support of this contention. But under the decisions of Illinois it seems to be settled (a) that in a fraternal benefit association the officers of a subordinate lodge are the agents of the Supreme Lodge, and (b) that the condition of forfeiture or suspension upon failure to pay assessments and dues promptly may be waived by the officers authorized to receive and forward the same. Grand Lodge A. O. U. W. v. Lachmann et al., 199 Ill. 140; Illinois Life Assn. v. Wells, 200 Ill. 445; Ind. Order of Foresters v. Schweitzer, 171 Ill. 325; Court of Honor v. Dinger, 221 Ill. 176; Conductors’ Benefit Assn. v. Tucker, 157 Ill. 194. A different rule prevails in Indiana under which it was held by the Appellate Court, upon substantially the same record as now under consideration, that the evidence would not support the verdict in this case. And so in a number of the states and in some of the Federal Courts it would probably be held that the failure to pay the assessment when due would effect a suspension of the member and bar the right or recovery, notwithstanding the acts of the subordinate officer, which is here held to constitute a waiver. Applying the law as we find it in this state to the evidence shown by this record, we conclude that it was not error to refuse the peremptory instruction. There was evidence to justify the jury in finding that appellant by frequent and repeated indulgence waived the necessity of prompt payment of assessments, and, in consequence, the default in payment of the February assessment, did not operate as a suspension of Jones’ membership and the right of his heirs to recover on the certificate. We do not think it can be seriously contended that Jones withdrew from the order or in any way severed his connection therewith. At any rate that was a question submitted to the jury, and we are not inclined to regard their finding as against the evidence.

The appellant requested and the court gave the following instruction:

“The court instructs the jury that the only issues in this case are whether or not Joseph L. Jones in his lifetime elected to sever his connections with the defendant order and abandoned the same, or whether or not the defendant waived the prompt payment of the assessment of $1.75 payable by said Jones on or before the last day of February, 1901.”

This instruction we think clearly and correctly presented the issues to be tried and as the undisputed evidence was sufficient to warrant a verdict for the plaintiff upon both issues, under our holding as to the law above indicated, the verdict was right and the judgment should be affirmed.

Affirmed.


text:
    The People, for use of Marion County, Plaintiff in Error, v. Mathew B. Wells et al., Defendants in Error.
    1. Municipal corporation—power of county to compromise with officer. A board of supervisors of a county may settle, adjust and compromise a claim against a sheriff thereof so long as it does not, by virtue of such compromise, appropriate or allow to such officer greater compensation than is allowed him by law.
    2. „ Municipal corporation—presumption in favor of legality of action of hoard of supervisors. A compromise or settlement by a board of supervisors apparently made within the scope of their authority will be taken as valid unless and until successfully questioned in an appropriate proceeding.
    3. Appeals and errors—when writ of error will he dismissed. A writ of error will be dismissed where upon the proceeding to review it appears that the matter in controversy has been fully adjusted, compromised and settled.
    4. Appeals and errors-—power of hoard of supervisors to order dismissal of writ of error. The board of supervisors of a county have authority to order the dismissal of a writ of error proceeding prosecuted at its instance.
    Action of debt. Error to the Circuit Court of Marion county; the Hon. Samuel L. Dwight, Judge, presiding.
    Heard in this court at the August term, 1907.
    Writ dismissed.
    Opinion filed March 18, 1908.
    J. J. Bundy and June C. Smith, for plaintiff in error.
    Frank F. Noleman and W. F. Bundy, for defendants in error.
   Mr. Justice Myers

delivered the opinion of the court.

By the direction of the Board of Supervisors of Marion county this suit was brought against M. B. Wells and sureties on his official bond. The declaration alleges numerous breaches in the conditions of the bond, and to the declaration the defendants filed a number of special pleas. The plaintiff demurred to the special pleas, which demurrer, upon argument and motion by defendants, was carried back- to the declaration and sustained by the court. The plaintiff elected to stand by its declaration, and prosecutes this writ of error to challenge the court’s ruling and judgment upon the demurrer.

At the opening of the August term of this court the defendants in error filed their motion to dismiss the writ of error herein and, for reason, stated that “since the judgment of the Circuit Court was entered carrying the demurrer back to the declaration and sustaining the same, and upon which this writ of error is sued out, the said cause of action has been settled and compromised between the said county of Marion and the defendant in error, Mathew B. Wells, principal in the bond sued upon, and that the said settlement is still in force and effect.” The following certified transcript of proceedings by the Board of Supervisors is attached:

“At a regular meeting of the County Board, or Board of Supervisors of the county of Marion, and State of Illinois, begun and held on the second Monday in June (June 10th) A. D. 1907, at the court-house in Salem, in said county, the same being the county seat of said county, the following amongst other proceedings were had and entered of record: ‘On motion the said Board adjourned until Tuesday, June 11th, 1907, at 10:00 o’clock a. m.’ At a regularly adjourned meeting of said Board of Supervisors held on the said 11th day of June, A. D. 1907, the following amongst other proceedings were had and entered of record: ‘A motion was made and carried that the Board appoint a committee of three to confer with Mr. M. B. Wells in reference to the settlement of difference between Mr. Wells and Marion County, and James, Eagan and Miller, were appointed on said committee. ’ ‘ On motion the Board adjourned until June 25, 1907.’ At a regularly adjourned meeting of the said Board of Supervisors held on the 25th day of June, 1907, at the courthouse in Salem aforesaid, the following amongst other proceedings were had and entered of record: ‘The committee which had been heretofore appointed to confer with Mr. M. B. Wells concerning the settlement of the differences between Mr. Wells and Marion County reported as follows:

“ ‘After a careful and thorough investigation of all the facts in the case, recommend that the county clerk be instructed to draw an order in favor of M. B. Wells for $49.77, the balance due him from the county, and that all litigation and suits now pending between M. B. Wells and Marion County be, and the same is hereby forever dismissed, and that the good name and reputation of Mr. Wells be, and the same is hereby restored, in so far as the county of Marion is able to restore the same; all of which is agreed to between the committee and Mr. Wells.

Committee: Gus James, Chairman.

John Miller,

A. L. Eagan,

M. B. Wells, Ex-Sheriff. ’

“The report was approved by a vote of eleven ayes and seven nays. ‘And on motion the said Board adjourned. J. B„ Quayle, County Clerk.’ ”

In further support of the motion, M. B. Wells, one of the defendants in error, makes affidavit of the settlement, the drawing of an order by the county clerk for $49.75, and the payment thereof by the county treasurer pursuant of the action of the Board. The plaintiff in error filed objections to the motion. Counsel for the parties respectively filed their written briefs and arguments, and the motion was taken with the case for consideration and subsequent determination by the court.

After full consideration of the argument of counsel, the statute bearing upon the question and authorities examined, we are of opinion that the motion should prevail and the writ of error be dismissed. Under the provisions of chapter 24, Revised Statutes, the county is a body “politic and corporate,” and may, by name, sue and be sued in law or equity. Its powers are exercised by a board of supervisors. It may make contracts and do all other acts in relation to the property and concerns of the county necessary to the exercise of its corporate powers. It has power to manage the county funds and county business, to settle all accounts against the county concerning the receipt and expenditure of money. “All notes, bonds, bills, contracts, covenants, agreements or writings, made or to be made, whereby any person is or shall be bound to the People of the State of Illinois, or to any county or the inhabitants thereof, * * * or to the use of any county, * * * shall vest in said county all the rights, interest and actions which would be vested in any individual, if such contract had been made directly with him. Suits may be commenced, sued and prosecuted thereon in the name of said county as is provided herein, or in the name, of the officer or person to whom they are made to the use of the county, as fully and effectually, to all intents and purposes, as any person may or can upon like notes, bills, bonds, contracts, agreements or writings made to him.” (Section 30.) The county is liable to judgment and costs, though execution may not issue against it. (Section 34.) It is the duty of the County Board of Supervisors to carefully audit and examine every report of every county official. (Chapter 53, section 51.) Within the powers and duties conferred by statute and above enumerated the Board of Supervisors was legally competent to audit, adjust and settle the accounts between Wells, the ex-sheriff, and the county, restricted only by the proposition that the county may not, by settlement or otherwise, appropriate of allow to an officer greater compensation than is allowed by law. In making a settlement, a power given by statute, it is to be presumed, until the contrary appears, that the Board has not transgressed the law, and until such settlement is questioned by appropriate proceedings and adjudicated otherwise, it is to be regarded as effective and binding on all parties concerned. In discussing a settlement made by the county board with an ex-sheriff, involving his reports, accounts and allowanees, the Supreme Court, in the People v. Foster et al., says: “They (the board) must be presumed, in the absence of averments to the contrary, to have known, as it was their duty to know, the state and condition of affairs, and to have acted in view of them. Where the county board, acting within the general scope of its authority, and with knowledge of the facts, settles with the officer who is guilty of no fraud, concealment or misrepresentation of fact inducing the action of the board, and pays from the county treasury the amount found due to him upon auditing and examining the officer’s reports, it is to be treated as a voluntary payment of money * * * and no action will lie against the sureties upon the officer’s bond to recover the same back.” In the same opinion it is stated that “the county board must, in the first instance, determine whether the conditions exist authorizing the payment from the county treasury—that is, they have jurisdiction to consider and pass upon the question.” Whatever the effect to be given the settlement shown by the transcript and affidavit attached to the motion, the writ should be dismissed for the reason that the beneficiary, plaintiff in error, authorizes and orders it to be done. We find in the report and recommendation of the committee formally and legally adopted by the board “that all litigation and suits now pending between M. B. Wells and Marion County be and the same is hereby forever dismissed. ’ ’ Though irregular in form, this is tantamount to an order to dismiss the suit, and though presented by the defendants in error, may properly be considered and credited by this court. We have it from the argument of plaintiff in error that the county board directed this suit to be brought, and we are of opinion that it rests with the county board alone to continue or discontinue this action whenever, in its judgment, the public interests so require. The state’s attorney could not of his own motion and without authority from, the board begin and carry forward this proceeding, which was instituted by direction and for the use of the county. Ottawa Gas Light Co. v. People, 138 Ill. 336.

In the case just cited suit was brought in the name of The People to recover unpaid taxes. An attorney other than the state’s attorney was employed by and acted for the county in bringing the suit. A motion was made to dismiss the suit because it was instituted without authority of law, and by an attorney not authorized by law to bring and prosecute the same. In discussing the question made by the motion to dismiss, the court says: “In the statute defining the duties of the state’s attorney it is, among other things, made his duty ‘to prosecute all actions and proceedings for the recovery of debts, revenues, moneys, fines, penalties and forfeitures accruing to the state or his county * • * * which may be prosecuted in the name of the People of the State of Illinois.’ * * * It would be perfectly competent for the county board to direct the state’s attorney to institute suits to recover delinquent and unpaid taxes and to prosecute the same, and in such case it would be the manifest duty of the state’s attorney to act. * * * Whether or not resort shall be had to proceedings at law to recover of property owners the overdue and unpaid taxes thereon, rests in the discretion of the county board; and we have no doubt that under the general power of the county board as the fiscal agent of the county it has the inherent right to direct the course of the proceeding and select the person and agencies through which it will act.” Though in that case the proceeding was based upon a provision of the Revenue Act, we think the principle or proposition found in that opinion is applicable-in tins case. The county board having the right and power not only to begin the suit, but to discontinue it, and having by formal resolution, legally adopted, ordered that the suit be dismissed, the motion will be allowed and the writ of error dismissed accordingly.

Writ of error dismissed.


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    H. R. Heimberger, Administrator of the Estate of Kola Phillips, deceased. Appellee, v. St. Louis, Iron Mountain & Southern Railway Company, Appellant.
    1. Master and servant—fellow-servant doctrine defined. The servants of a common master are to be regarded as fellow-servants when they are co-operating at the time of an injury in the particular business in hand or when their usual duties are of a nature to bring them into habitual association or into such relations that they can exercise an influence- upon each other promotive of proper caution.
    2. Master and servant—who fellow-servants as matter of law. Held, that servants who were in common members of a crew whose duty it was to clean, coal and water engines were fellow-servants, as a matter of law.
    Action in case for death caused by alleged wrongful act. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.
    Heard in this court at the August term, 1907.
    Reversed.
    Opinion filed March 18, 1908.
    Formar & Whitnel, for appellant.
    Millard & Smith, for appellee.
   Mr. Justice Myers

delivered the opinion of the court.

Appellee’s intestate, Kola Phillip, was in the employ of appellant as a fire-knocker in the company’s yards at Bixby, Illinois. He was one of a night shift or crew consisting of three fire-knockers and one hostler. The fire-knockers and hostler worked together in cleaning, coaling and watering engines as they came into the yards, under the direction of the night foreman of the roundhouse. Throughout the entire operation in doing the work required of the night crew the hostler’s place was in the cab of the engine, which he moved from place to place, stopped and started only on signal from the fire-knockers engaged with lfi-m in the work to be done. In usual routine, the engine would first be run in and stopped above the cinder-pit, when the fire-knockers cleaned it of fire and cinders. The engine would then be moved to the water tank, where the fire-knockers let in the water, and then to the coal tipple, where they lowered the chute and coaled the engine. In the night time the signals were made with lanterns carried by the fire-knockers. On the night of October 14, 1905, when Kola Phillip was killed, the crew consisted of himself, Mike George and Steve Eyan, fire-knockers, and Harry Douglas, the engineer or hostler. They were engaged in the work of cleaning, coaling and watering an engine in the usual and customary manner of operation. Douglas was on the engine and the others of the crew, having cleaned it of fire and cinders at the cinder-pit, gave signal to move the engine to the coal tipple. When the engine reached the tipple, it stopped on signal of the fire-knocker at chute No. 8. The deceased and one other fire-knocker, being on the tender, let down the apron of the chute and let in the coal, Phillip taking position between the apron and the engine cab. While there, and before the apron was raised to position, one of the fire-knockers signaled the hostler, the engine moved back and Phillip was caught and crushed between the cab and apron, sustaining injuries from which he died.

The declaration consists of two counts, in which it is alleged that the defendant negligently moved an-engine about which Kola Phillip, plaintiff’s intestate, was at work under circumstances found in the preceding statement, and caused his injury and death. The general issue was filed by the defendant and the case was tried by a jury, which returned a verdict for plaintiff for $1,999. The defendant made a motion for a new trial, which was overruled, and the court rendered judgment on the verdict, from which an appeal was perfected.

In the view we take of this record, it will not be necessary to consider other error than that found in the ninth assignment, viz., that the court erred in refusing the peremptory instruction to find for the defendant. Clearly and indisputably the hostler and fire-knockers with whom the deceased was engaged at the time of the injury were fellow-servants within the most restricted definition to be found in the opinions of our higher courts. It is the doctrine in this state that servants of a common master are to be regarded as fellow-servants when they are cooperating, at the time of an injury, in the particular business in hand or when their usual duties are of a nature to bring them into habitual association, or into such relations that they can exercise an influence upon each other promotive of proper caution. Chicago City Ry. Co. v. Leach, 208 Ill. 198. In this case, and at the time of the accident, the night foreman of the roundhouse had general supervision of the work in which the deceased was engaged, and the crew with which he worked and of which he was a member acted under the orders and direction of this foreman. It was the duty of the crew to clean and supply with coal and water engines that came into the yard for that purpose. The men were associated and worked together in the performance of the usual, ordinary and customary duty in the work for which they were employed, and to which they had been directed that evening. They received no specific orders as to the manner of doing the work, and required none. There is no dispute in the evidence that the crew was engaged in the usual and customary way, nor is there any evidence that the deceased was acting under direct or specific orders from anyone. The appellee endeavored to prove, and now contends, that. Douglas, the engineer, was a foreman, that the crew was under his charge and direction, and that appellant may be held liable for his negligence in causing or permitting the engine to be moved while the deceased was exposed to injury. In the direct examination of witnesses Byan and George, through an interpreter, these witnesses state that the hostler, Douglas, was in charge of the engine, but their cross-examination and the manner of operation as detailed by them, wholly discredit their conclusion that Douglas was in charge of the crew, if indeed they intended to convey that meaning and did not intend merely to say that he had charge of the engine, which was true in the sense that he operated it. George, appellee’s witness, testified: “When the engine came in he (Estep, the roundhouse foreman) gave directions that it be taken out and cleaned and coaled and watered. Then the hostler and me and Phillip and Ryan would take the engine and go out there on the engine and we cleaned the ash-pan. If in the night time, when we got the ash-pan cleaned we would signal to the hostler with the lantern. When we got up to where the coal chute was and wanted him to stop, would signal with lantern. We could all start and stop the engine with the lantern. The hostler who was on the engine did just as we wanted him to. The three fire-knockers and ash-pan cleaners and hostler worked together and the motion of the engine was controlled by our lanterns. * * * The hostler in the cab would obey the signal. We all worked there together. * * * In the night time we would signal with the lantern to start and stop the engine. This was done on the night in question. Ryan came up from behind and pulled the chute down, the fireman and I were on the engine between the engine and tender and the coal was back of us; the cabman or hostler was on the engine proper. I was on the little platform between the engine and tender getting coal out of the tender into the engine. Anybody would do that work. Sometimes the hostler did that work, the same work us boys were doing. We all four did the same work.” To the same purport is the testimony of appellee’s witness Ryan. Without regard to appellant’s evidence, which is direct and positive as to the duties of the men composing the crew and the manner of operation, we are constrained to hold, as matter of law, that the hostler and fire-knockers were fellow-servants of the deceased, and whether the injury complained of was due to the negligence of the hostler in managing the engine without signal or to the negligence of one of the fire-knockers in giving a premature signal, it follows, from what has been said, that the appellant was not liable. Ordinarily the question of fellow-servants is one of fact for the jury. This is always the case where there is dispute of evidence as to the facts out of which the relation of fellow-servants arises. As to whether certain facts will create the relation of fellow-servants is a question of law, but whether such facts exist is ordinarily a question of fact for the jury. But, as said by the Supreme Court in the Leach case, supra, “where there is no evidence fairly tending to prove that they are not fellow-servants, and the undisputed facts show that the relation exists, the question is one of law.” A case very similar in facts to the one at bar and one very much in point in the discussion and application of the fellow-servant doctrine will be found in C. & A. Ry. Co. v. Bell, 209 Ill. 25.

As already observed, other errors were assigned and discussed in argument, but in view of our holding, that the deceased and other members of the crew were fellow-servants, it will be unnecessary to prolong this opinion. The judgment of the City Court will be reversed with finding of facts.

Reversed.

We find as facts, to be incorporated with the judgment, that appellant was not guilty of the negligence charged in the declaration, and that the injury to Kola Phillip, appellee’s intestate, was due to the negligence of his fellow-servants.


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    Mary Greider, Appellee, v. Chicago & Eastern Illinois Railway Company, Appellant.

      Infancy—when minor without power to assign wages. In the absence of emancipation, a minor has no power to assign his wages.
    Assumpsit. Appeal from the Circuit Court of Marion county; the Hon. Samuel L. Dwight, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    David C. Harrington and Kagy & Vandervort, for appellant; E. H. Seueef, of counsel.
    T. E. Merritt, for appellee.
   Mr. Justice Myers

delivered the opinion of the court.

Ralph Greider, son of Mary Greider, appellee, was employed by the appellant railroad company in March, 1906. At that time he was a minor and would not have reached his majority until the following September. About the time that Ralph began work for the appellant he contracted with the International Text Book Company of Scranton, Pa., for a scholarship in the International Correspondence School, and agreed to pay for tuition and supplies the sum of $54.40, in monthly payments of five dollars each, and to effect compliance with contract signed a written order upon his employer, the appellant, to make the said monthly payments from his monthly earnings. He worked for appellant about two months, for which he was paid all, except $29.55, of his earnings or wages, for which this suit was brought by his mother, the appellee. Pursuant to the order mentioned, the appellant paid $20 to the International Text Book Company and deducted the same from Ralph’s wages, tendering him $9.55 as the balance due. Appellee brought suit in the justice court and recovered judgment, from which the defendant appealed to the Circuit Court, where the case was tried by the court without a jury and judgment for plaintiff for $29.55 was rendered, from which the defendant appealed.

The evidence supports the finding that Balph Greider was a minor during the time of his employment by appellant, and when he attempted to make the contract with the International Text Book Company. There was evidence tending to prove emancipation, but, on the other hand, there is evidence from Avhich it may reasonably be said that he had not been emancipated, and as an issue of fact the finding of the trial court is ■ conclusive.

Under the law it is therefore established that no contract was or could be made with Balph G-reider that would bar the appellee, his mother, in her right to his wages.

We find no error in the court’s refusal of any proposition of law that could affect the finding in this case, had the court held differently. The judgment will therefore be affirmed.

Affirmed.


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    Sandoval Zinc Company, Appellee, v. New Amsterdam Casualty Company, Appellant.

      Insurance—when provision of indemnity policy waived. Meld, that under the evidence, it was not error to hold that the provision of the contract of indemnity providing for delivery to the company of all summonses, etc., was waived.
    Assumpsit. Appeal from the Circuit Court of Marion county; the Hon. Samuel L. Dwight, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    Linn R. Brokaw and Kagy & Vandervort, for appellant; C. P. Elleebe, of counsel.

      June C. Smith, for appellee; Daniel M. Rothschild, of counsel.
   Mr. Justice Myers

delivered the opinion of the court.

This is an action by the Sandoval Zinc Company, appellee, against the New Amsterdam Casualty Company, appellant, to recover indemnity for loss sustained by reason of an accident causing injury to an employe of appellee. The appellant is a corporation engaged in what is known as “employers’ liability” insurance business. The action is based upon an insurance policy issued by appellant September 10,1905, to be effective and in force for the period of one year. By the terms of the policy, appellant agreed to indemnify appellee against loss from legal liability for damages on account of bodily injuries or death accidentally suffered by any employe of the appellee while engaged on the factory premises and in the business described. Appellant’s obligation is made subject to the following, among other conditions:

“Condition B. Upon the occurrence of an accident the assured shall give immediate written notice thereof with the fullest information obtainable at the time, to the home office of the Company in New York City or to its duly authorized agent. If a claim is made on account of such accident the assured shall give like notice thereof with full particulars. The assured shall at all times render to the company all co-operation and assistance in his power.

“Condition C. If thereafter any suit is brought against the assured to enforce a claim for damages by reason of an accident covered by this policy, and arising from a liability covered thereby, the assured shall immediately forward to the home office of the company every summons or other process as soon as the same shall have been served on him, and the company will, at its own cost, defend such suit in the name and on behalf of the assured. The company shall, however, have the right at any time to discharge its total liability hereunder by reason of any one accident by settling all suits and claims against the assured arising from the said accident and covered by this policy, or by payment to the assured of an amount equal to the liability provided for such an accident in Condition 0 hereof, but all sums theretofore paid by the company either to the assured or in settlement of any suit or claim, against the assured, by reason of the said accident, shall be in diminution of the liability of the company provided for said accident in said Condition C.

‘ ‘ Condition D. The assured shall not voluntarily assume any liability, nor shall the assured, without the written consent of the company previously given, incur any expense or settle any claim, except at his own cost, or interfere in any negotiations for settlement, or in any legal proceeding; except that the assured may provide at the time such immediate surgical relief as is imperative. Whenever requested by the company, the assured shall aid in securing information and evidence and attendance of witnesses and in affecting settlements and in prosecuting appeals.

“Condition E. No action shall lie against the company to recover for any loss covered by this policy, unless it shall be brought by the assured for loss actually sustained and paid in money by the assured in satisfaction of a final judgment after trial of the issue; nor unless such action is brought in ninety (90) days after such final judgment against the assured has been so paid and satisfied. The company does not prejudice by this condition any defenses to such action it may be entitled to make under this policy.”

On the eighth day of November, 1905, Henry Hale, an employe of appellee, was injured under circumstances which, if there was any legal liability on the part of appellee, such liability was covered by the policy. Appellee gave to the company due notice and information of the accident, and of the claim for damages afterwards made by Hale, as required by Condition B. Hale commenced suit against appellee December 21, 1905, for injuries sustained in the accident. The appellee, defendant in that suit, was duly served with summons December 26, 1905, returnable to the January term of the Circuit Court of Marion county, which convened January 8, 1906. The defendant, failing to appear, was on January 11th defaulted, the damages assessed by jury, and judgment by default rendered against the defendant (appellee) for $2,500. On January 16, 1906, appellant was notified that default had been taken, and on the seventeenth Bobert A. Crabb, L. B. Brokaw and John S. Stoneciplier, attorneys for appellant, appeared for and in behalf of appellee, and filed a motion supported by affidavit to set aside the default. The motion was overruled, an appeal to the Appellate Court was prayed and allowed upon filing bond within thirty days and bill of exceptions within sixty days. Thereupon appellant withdrew from the case and disclaimed liability under the policy, on the ground that the assured had failed to comply with Condition C, in not forwarding to the home office of the company the summons or process in the suit brought by Henry Hale, the injured employe. Appellee was advised of the disclaimer and of the appeal orders entered, and thereafter filed an appeal bond, which was approved, but failed to file a bill of exceptions within the time fixed by the court. In the Appellate Court the appeal was dismissed for want of a bill of exceptions, on motion by Hale’s attorneys. Upon writ of error afterwards sued out by appellee the judgment of the Circuit Court was affirmed by the Appellate Court. Hale brought suit upon the appeal bond and recovered judgment against appellee for $2,737.32, with interest amounting to $22.91 and costs amounting to $7.50. December 1, 1906, appellee paid this judgment, then amounting to $2,767.63, after which the present action was instituted against appellant. The policy is set out in full by the declaration. The .defendant filed the general issue and twelve special pleas, upon which issues were joined and the case tried by the court without a jury. The court found for the plaintiff and assessed damages at $2,500, the face of the policy, upon which judgment was rendered, and from which the defendant appealed to this court. Exceptions were taken and errors duly assigned, upon which may be considered the contentions and argument of appellant that the judgment should be reversed.

It appears from the evidence and is conceded in argument that appellee on its part acted in conformity with all the terms, conditions and requirements of the policy, except as to Condition C, wherein it was required that the assured should “immediately forward to the home office of the company every summons or other process as soon as the same shall have been served on it” (the assured), and as to that condition or requirement it is admitted that appellee did not comply therewith. To overcome this omission and. still maintain its action on the policy, appellee alleges that appellant waived the requirement in Condition C that the summons should be forwarded to the home office, and by its action and conduct relating to the suit by Hale, it was estopped and could not set up in defense that the summons was not forwarded to the home office.

It appeals in evidence that one C. J. Porter was manager for the appellant company for the State of Illinois, with office in Chicago. Shortly after Piale was injured, Porter was notified, as required by Condition B of the policy, and when a few days later Hale made claim for damages, Porter was again notified as required by the same condition. Hale commenced suit December 21st, and appellee was served December 26th. On December 29th Bobert A. Crabb, an adjuster and attorney sent by appellant to investigate the cause of accident and negotiate settlement with Hale, was shown the summons by assured’s superintendent at Sandoval, where the accident occurred. Crabb proceeded with his investigation, and the same day effected an agreement with Hale for settlement on payment of $250 and Ms attorney’s fees when ascertained. Unable to agree with Noleman & Bundy, Hale’s attorneys, who exacted $150, a sum greater than Crahb was authorized to pay without first communicating with the company, a settlement was not concluded. Crabb reported to the home office of the company in New York, and on January 8th he received a letter from the company authorizing settlement for the sum demanded by Hale and Ms attorneys. He wrote to the attorneys the same day, asking for an appointment with Hale for the purpose of settlement. Receiving no reply, he, on December 12th, again wrote to the attorneys, malting a like request. In the meantime, on December 11th, no appearance for or by the defendant having been entered, a default was taken, the damages assessed by a jury at $2,500, and judgment rendered on the verdict. On January 17th appellant, by its attorneys, for and in behalf of appellee, filed a motion to set aside the default. This motion was demed and the appeal taken and perfected as hereinbefore stated. The further proceedings culminating in the judgment in tMs case are set out by the prefatory statement herein.

As we understand the argument, it is contended by appellant that there was no liability under the policy until judgment for injuries suffered had first been obtained against the assured and not until the sum had been paid and satisfied, and therefore that the reqmrement of notice of accident, claim and suit are written conditions precedent which cannot be waived except by written indorsement signed by an officer at the home office, according to Condition M of the policy. The proposition is that the parties must be held to the contract as written and may not vary the conditions preceding liability by parol or otherwise than as provided by the contract itself. We do not so read and construe the policy in tMs case. The appellant agreed “to indemmfy the assured (appellee) * * * against loss from the liability imposed by law upon the assured for damages on account of bodily injuries * * * suffered by an employe,” etc. The liability of the insured for damages to an employe for injuries received under the circumstances of this case was imposed by law when the accident happened and the injury was inflicted. At the same time the right of appellee to indemnity and the obligation of the appellant to compensate for the loss in damages had so far matured and become fixed that it only remained to liquidate and ascertain the sum to be paid. Simultaneous with the accident accrued the obligation of the company to indemnify and the right of the insured to such indemnity. The provision, Condition B, that no action shall lie unless for loss sustained by the assured and paid in money in satisfaction of final judgment, is no more than an agreed limitation as to remedy and the means by which to determine whether the liability of the assured was imposed by law, and the measure in damages of such liability. The things required by the policy to be done by appellee after the accident, in order to maintain an action against appellant, were solely for the protection and benefit of the insurer, the appellant. For that purpose and to that end it is not contended that these conditions are unreasonable. At any rate, we are not required to so hold in this case. The condition that the insured shall forward to the home office the summons and other process is, in effect, that the insurer shall be notified of suit brought and prescribing the manner of giving such notice. This condition and the purpose of it is not unlike conditions usually found in fire or life insurance policies, wherein notice of death or fire and proof of loss within a time fixed is required, without which the remedy of the assured by action may be ineffectual, made so by his written agreement and failure to act in conformity therewith. By this construction of the contract, the doctrine of waiver and estoppel may be invoked and applied in this case, as it has often been applied under like contention by our courts in other insurance cases. Dwelling House Ins. Co. v. Dowdall, 159 Ill. 179; Citizens Ins. Co. v. Stoddard, 197 Ill. 330. We think the finding and judgment of the Circuit Court sustained by the evidence, which tends strongly to prove that the company was informed at the home office in New York of the commencement of the suit by Hale, and in time to have interposed a defense in the name of appellee, as it was permitted and required to do by the terms of the policy. Crabb, the adjuster sent by appellant to negotiate a settlement of the claim, was also an attorney for appellant. He was shown the summons and it is not reasonable to suppose that in his report of investigation to the home office a fact so pressingly important as the commencement of suit should have been omitted. Surely it was his duty to so inform the company, and that he did so may be inferred from subsequent proceedings by himself and other attorneys for and in behalf of appellant. There is conflict of evidence as to whether or not Porter, the general agent, was informed of the suit prior to the default. As we view the case, the finding one way or other upon that question is not decisive. By word and letter Porter repeatedly assured the appellee that it would be fully protected against Hale’s claim and would not be troubled with a suit, that appellant assumed all the expenses of suits or settlements and would pay the judgment up to the limit of the policy. Notwithstanding that Wiel, president of appellee company, was continually pressing for settlement and irritatingly impatient of delay, there was never a suggestion from Porter that there remained anything yet to be done by appellee to fix the liability of appellant. In effect, liability was admitted throughout the correspondence and negotiations, and from the time Porter was notified of Hale’s claim he appeared to assume entire charge and responsibility of the matter. What was said and done for and in behalf of the company operated as a waiver of Condition C, and appellant was thereby estopped to set up in defense that the summons was not forwarded in accordance therewith. Belying.upon the probability of settlement through negotiations by Crabb, the appellant by its own neglect failed to enter appearance and suffered default, by which, it is not improbable, the damages assessed exceeded what would have been allowed by trial. For this the appellee was not accountable. Under the'policy, by expressed condition, “the assured shall not voluntarily assume any liability, nor shall the assured, without the written consent of the company previously given, incur any expense or settle any claim, except at its own cost, or interfere in any negotiations for settlement or in any legal proceeding.” The only course consistent with appellant’s present contention and construction of the policy would have been to withdraw from the case and disclaim liability immediately it learned that suit was commenced. Had this been done, it may be assumed that appellee would have entered appearance and defended the suit. At any rate, appellant would have been in a much better position to complain of excessive damages. The court refused all the propositions of law, eight in number, offered by appellant, and the only one offered by appellee. Not one of the propositions sufficiently and correctly stated the law applicable under the facts in this case. Our reasons for this holding are found in the foregoing opinion.

We think the trial court properly ruled that appellee could not recover in excess of $2,500, the sum insured, and the limit fixed by the policy. Upon appellee’s contention that it was the privilege and duty of appellee to do what it could to reduce the damages, it may be said, from the record, that what it did and failed to do in litigating the Hale case was calculated to enhance rather than reduce damages, and in fact was effectual in that way. Appellee, no less than appellant, might have stood upon its rights under the policy at the time appellant disclaimed liability, and withdrew from the suit. Not to have done so and thereafter to have voluntarily assumed sole charge and responsibility in subsequent proceedings, the expense incurred was in no wise chargeable to appellant. The judgment will be affirmed.

Affirmed.


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    G. E. Vandergrift, Appellee, v. C. O. Clark Hotel Company, Appellant.

      Vebdiot—when set aside as against the evidence. A verdict clearly and manifestly against the weight of the evidence will be set aside on review.
    Assumpsit. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyebs, Judge, presiding.
    Heard in this court at the August term, 1907.
    Reversed and remanded.
    Opinion filed March 18, 1908.
    Louden & Crow, for appellant.
    Henry T. Kent and R. V. Gustin, for appellee.
   Mr. Justice Myers

delivered the opinion of the court.

Appellee brought suit in assumpsit against appellant to recover $250 claimed to have been deposited by appellee for safekeeping with the clerk of appellant’s hotel. The case was tried by jury and resulted in verdict and judgment for plaintiff for $250, from which the defendant appealed.

Between eleven and twelve o’clock at night, August 3, 1906, appellee went to the Royal Hotel, East St. Louis, registered as a guest and was assigned to a room by the night clerk, Floyd Calvert. He left -with the clerk $250 for safekeeping and was given a receipt for the money. His father came with him to the hotel, and together they went to his room and ordered supper, which was sent in from an outside restaurant. After supper he and his father had some controversy about private matters and the father left. Soon thereafter appellee went down to the office, paid his bill, fifty cents, and ordered a carriage to take him to Belleville, fourteen miles distant. On the ninth day of August appellant received the following telegram:

“Gadsden, Ala., Aug. 9th.

“To The Royal Hotel,

“Bast St. Louis, Ill.

“I stopped with you August 3d and left $250 in “charge of your clerk at your desk and at present “hold your receipt for same, but had misplaced for “several days. An answer to me here at my expense “would oblige me by telegram.”

G. E. Vandergrift.”

Upon his return to Bast St. Louis, a week later, appellee presented his receipt and demanded the $250 left with the clerk August 3d. Appellee testifies that he forgot to call for the deposit the night he paid his bill and left the hotel. The clerk, Calvert, testifies that he returned to appellee his money, but forgot to take up the receipt. Other circumstances corroborating Calvert appear in evidence, which we do not recite. Calvert is also corroborated by two other witnesses, apparently disinterested, who swear that they were present, that appellee was drunk and that they saw Calvert pay Mm his money, which he counted out and said was all right. After careful consideration of all the evidence shown by the abstract and record, we are clearly of opinion that it preponderates largely in favor of the appellant. The evidence tends strongly to prove that appellee was intoxicated and lacking in memory of what occurred at the hotel when he paid Ms bill and left. That he did not discover his loss for almost a week is a circumstance that should have weight, and Ms uncertainty, even then, as to what had become of Ms money may be inferred from the telegram of August 9th. As the case is to be remanded for another trial, we forbear further discussion of the evidence. The only instruction given in the trial is subject to the objection made by appellant, and the error is not likely to be repeated onhnother trial. We deem further comment unnecessary. The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    William Thomas, Appellee, v. Republic Iron & Steel Company, Appellant.
    Master and servant—what essential to recover for failure to furnish safe appliances. In order for a servant to recover of his master because of the latter’s failure to exercise reasonable care to furnish reasonably safe appliances, it must appear, first, that the machinery supplied was dangerous, defective and unsafe; second, that the master knew, or, by the exercise of ordinary care, should have known, that the machinery was dangerous, defective and unsafe; and, third, that the servant did not know and did not have equal opportunity with the master of knowing of the defective, dangerous and unsafe condition of the machinery.
    Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. J. B. Vaughn, Judge, presiding.
    Heard in this court at the August term, 1907.
    Reversed, with finding of facts.
    Opinion filed March 18, 1908.
    C. E. Pope, for appellant; Richard Jones, Jr., of counsel.
    Webb & Webb, for appellee.
   Mr. Justice Myers

delivered the opinion of the

court.

This is an action in case brought by William Thomas, appellee, against the Republic Iron and Steel Company, appellant, tried at the March term, 1907, of the City Court of East St. Louis, to recover for a personal injury received by appellee on the twenty-fourth day of February, 1906, while working for the appellant at its plant in the city of East St. Louis, Illinois. The case was tried on two additional counts, to which the defendant pleaded the general issue. The negligence charged and relied upon is that the defendant furnished, used and operated defective and unsafe machinery, causing the plaintiff’s injury. The case was tried by jury and a verdict returned for the plaintiff for $2,000 damages, upon which the court rendered judgment, from which the defendant appealed.

The Republic Iron and Steel Company, appellant, is a corporation and owns and operates a rolling mill in the city of East St. Louis. Appellee was injured while worldng at what is known as the nine inch mill. This mill is used for rolling hot iron into long bars. The mill consists of four sets of rolls, the roughing ■ rolls, stranding rolls, oval rolls and finishing rolls. There are three of the roughing rolls, set one above the other, and three of the strand rolls, set likewise, and two oval rolls and two finishing rolls. Iron is carried from the furnace by means of tongs and first taken to the roughing rolls, where it is worked back and forth through these rolls until it is of sufficient size to pass through the next set, or strand rolls. The operation is repeated through various passes on each of the rolls, until the iron is worked to the proper size. Men work on each side of the rolls and pass the iron back and forth, putting it through a different size hole each time it is passed. The roughing and stranding rolls were secured by an iron framework, the ends of each roll resting beneath iron girders, running north and south. Running in the same direction, above and across the ends of the girders, were iron casings or housings, in width and thickness about ten inches. On top of the rider and above the axle of each of the upper rolls is placed a piece of cast-iron, about four inches square and two inches thick, known as a breaker. This breaker was enclosed on the top and the north and south sides by the casing or housing, but open on the east and west sides. The space between the sides of the casing was about twelve inches. On top of the breaker rests a large set screw, which prevents the rolls from separating when the iron is put through. The breaker is arched underneath and so designed that when the pressure on the rolls becomes too great it will break and thus prevent the breaking of the rolls or other part of the mill. On the occasion in question, when Thomas was injured, a piece of iron had been brought from the furnace to. the roughers, and they failed to put it through the roughing rolls the required number of passes to make it of proper size for the strand rolls. Appellee took the bar of iron in that condition and started it in the strand rolls. It went through a short distance and “stuck”—the machinery kept revolving. The assistant roller and Thomas were loosening the set screw at one end of the roll, but before they had time to loosen it and the set screw at the other end and thus permit the rolls to separate sufficiently for the bar to pass through, one of the workmen at the mill struck the bar of iron with an axe or sledge, which started the bar through the rolls. It was too large to go through, and the force thus created caused so much pressure on the breaker that it broke. A piece of it flew and hit Thomas, who was standing near the rolls. The piece struck his left eye and so injured the ball that it afterwards had to be removed. The breaker sets between the housing of the mill, the housing coming up on each side of the axle or bearings of and over the top of the ends of the rolls.

A number of errors have been assigned and discussed by counsel in argument, but having reached the conclusion, after a careful examination of the record, that the peremptory instruction requested by appellant at the close of the evidence should have been given, it will not be necessary in this - opinion to consider other error or complaint. The negligence alleged, upon which the appellee relies as a cause of action, is that appellant, knowing the danger from flying particles of the breakers when the mill was in operation, failed to screen the side opening of the casing, or in other practical manner to safeguard the machine. To recover under this declaration it was incumbent upon the appellee to establish three propositions : First, that the machinery supplied was dangerous, defective and unsafe; second, that appellant knew, or by the exercise of ordinary care should have known, that the machinery was dangerous, defective and unsafe; and, third, that appellee did not know and did not have equal opportunity with appellant of knowing of the defective, dangerous and unsafe condition of the machinery. McCormick Machine Co. v. Zakzewski, 220 Ill. 522. There is evidence, a little, tending to prove the first proposition, but none whatever which by any reasonable inference can be held to establish the second and third. Appellee was twenty-three years old and had been working at the mill and about the rolls for seven years, two and a half years as a strander—his particular employment at the time of injury. It is undisputed that the breaker, in like adjustment, was a necessary device to relieve undue pressure upon the rolls while in operation. In purpose it was a safety appliance, a contrivance to prevent injury, not only to the machinery but to the employe as well, for it is reasonable to suppose that the consequence without its use would greatly endanger the operator. It was a mechanical device approved, adopted and used not only by this mill, but by other rolling mills throughout the country. It was the only device of the kind known or used during the entire period of appellee’s service for appellant, and there is no evidence of injury to employes caused or feared from the use of this breaker prior to the accident in this case. It is the testimony of many witnesses of long-experience that frequently, almost daily, often many times a day, the breakers were broken as designed, the pieces falling harmlessly to the ground. As was necessary on every such occasion the broken plate was replaced by a new one and this was the duty of appellee or other employes with whom he worked. The, breaking and replacing of breakers was of such frequent occurrence and a thing so open to view that surely it could not escape the observation of one whose duty it was to see and know the use of the breaker and the necessity of replacing it when broken. “The rule that the servant is under no primary obligation to investigate and test the fitness and safety of machinery, surroundings, etc., in the absence of notice of defects, is not applicable to the case of one who has been in the employment of his master for such length of time as to require him, in the exercise of ordinary prudence, to take notice of his surroundings.” I. C. R. R. Co. v. Sanders, 58 App. 117. Appellee says that in all the years of his experience he never before the time of his injury knew a breaker to fly in pieces in such manner as to endanger the men at work about the machine. And so testified all the witnesses, including those called by appellee and heard before the evidence was first closed. This was the first time that any of the witnesses ever knew a piece of breaker to fly with sufficient force likely to injure any one. Appellee’s witness Peters, working with appellee at the mill, testifies that he had seen the breakers break a dozen times, but never saw one fly. “They would always fall right down.” After the evidence was closed and the motion by appellant for a peremptory instruction had been argued and demed by the court, leave was given to appellee to introduce further testimony. Under tMs leave three witnesses were called and examined touching their knowledge and experience as to the flying of pieces when a breaker gave way. Beese Davis, at one time foreman in this mill said, that sometimes the pieces would fly out a little way, not very far. Other witnesses testified that in years of experience they remembered—some of one, others of two or three instances—when pieces flew out a distance of a few feet and with more or less violence. This is substantially all the evidence bearing upon the question of app ellant’s negligence as alleged. We find here no evidence that appellant knew or by the exercise of ordinary care conld have known that the breaker as adjusted and operated was dangerous, defective or unsafe. The appellee says that he did not know, or think of danger from flying pieces of breakers, and so, in effect, say all the witnesses who testify, all of whom were experienced in that Mnd of work and familiar with the machine and its operation. If they did not know or believe there was danger, nor at any time make complaint, how, in reason, was the appellant to know? If it could be contended that appellant, by the exercise of ordinary care should have known that pieces of the breaker would fly through the unenclosed sides of the casing, thereby endangering its servants, it is still impossible to escape the proposition, that appellee’s opportunity for knowing the condition and the danger was equal or greater than that of appellant. As was said by the court in C., R. I. & P. Ry. Co. v. Clark, 108 Ill. 113, discussing the proposition we are now considering, “reasonable care only could, when exercised by the company, reach the same results that would be attained by the use of the same care used by deceased. If his care and diligence could not learn that it was dangerous, it is unreasonable to hold appellant liable, when, by the use of the same care, it could not learn there was danger.” The language quoted may fairly be used in argument under the facts in this case. The judgment will be reversed and as it appears from the record that appellee has no cause of action, under the evidence, the case will not be remanded.

Reversed, with finding of facts.

We find as ultimate facts, to be incorporated with the judgment, that appellant was not guilty of the negligence alleged in" the declaration, and that the injury to appellee was not caused by the negligence of the appellant, and that Ms injury was the result of risk and hazard incident to Ms employment at the time of injury and wMch he assumed.