text:
    Nicholas Rausa, Plaintiff in Error, v. Peter Bartzen et al., Defendants in Error.
    Gen. No. 13,917.
    1. Master and servant—what essential to recovery under charge of defective scaffold. To entitle a servant to recover of his master for an injury resulting to him from an alleged defective scaffold, he must prove, first, that the scaffold was defective; second, that his master had notice thereof or in the exercise of ordinary care would have had knowledge thereof; and, third, that he, the servant, did not know of the defect and had not the same means of knowing such defect as had his master.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Axel Chytbaus, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed April 17, 1908.
    Statement by the Court. The plaintiff in error brought in the Superior Court an action on the case against the defendants in error, his employers, to recover for injuries sustained by him in falling from -a scaffold provided for him to work on by the defendants. At the close of all the evidence the court directed a verdict for the defendants, and to reverse the judgment entered on that verdict this writ of error is prosecuted.
    The work in hand was putting siding on the north side of a two-story frame building forty feet long. For this purpose there was a scaffold about four feet below the frieze board and eighteen feet above the ground, made of planks supported by brackets. A bracket consisted of an upright 2x4 scantling four feet long which, when in position, rested against the side of the building; of a horizontal 2x4 scantling three feet long extending out from the building at right angles with the upright, the inner end of the horizontal arm nailed to the top of the upright, and of two braces five feet long made of inch boards six inches wide, running from the outer end of the arm to the lower end of the upright, one on each side. A hole was bored from the top of the horizontal arm at an angle down through that arm and through the upright near the junction of the two pieces. In this hole a pin sixteen inches long was placed with a head on the upper end, and the lower end extending some inches from the upright. To hang a bracket to the side of a building, a hole was bored in the sheathing, and the projecting end of the pin inserted into such hole. In this manner the brackets in question were hung to the building, through holes in the sheathing, which was seven-eighths of an inch thick. In the scaffold in question there were six brackets, and consequently five spaces between brackets. The east bracket was about a foot from the east end of the building, and the west about the same distance from the west end. The space between brackets was a little over seven feet. Beginning at the east end of the building, two 2x6 planks were laid on the first three brackets, the west end of the planks resting on the third bracket; then came a 2x10 plank, its east end resting upon the west end of the two six inch planks and its west on the fifth bracket; then came two more 2x6 planks, their east ends resting on the west end of the ten inch plank, and their west ends resting on and extending beyond the west bracket.
    But two men were on the scaffold on the day of the accident, plaintiff and Walz, a witness for the plaintiff. Plaintiff testified that he did not notice how the scaffold planks were laid. Walz testified that when he went on the scaffold to work that morning, some of the planks were out of place; that he placed them in place; that he laid the two west planks “together close, together straight east and west. Just close together, I mean so as to be tight. Maybe they was half an inch out of the way, but laid them like this, laid them solid.” He further testified that at that time he nailed the outside plank to the west bracket; that he put in a six or eight penny nail; that he went upon the scaffold immediately after the accident, “that the outside west plank was still in the same place, it was nailed on the west corner. The nail had not come out then.”
    Boeser, a witness called by plaintiff, testified that a week before the accident, he braced the west bracket by placing a 2x4, so that its upper end was under the horizontal arm of the bracket, at the angle between that arm and the upright, and its lower end was on the ground. Soon after Walz went on the scaffold, plaintiff went up to help him put on siding. They first were on the middle, or ten inch plank. When all the siding was put on above that plank, they went towards the west end of the building. Plaintiff sat down on the west planks, at a point four feet east from the west end of the building, and he and Walz resumed work. Walz soon afterwards went down from the scaffold for nails, and at the time plaintiff fell he was alone on the scaffold. He had put on all the boards he could reach while sitting down, and got upon his knees. His testimony, in chief, as to what occurred was as follows:
    “Walz went down to get some nails and I put up the last three pieces up to the last one. In putting up the last one I stood on my knees. On that part of the scaffold there were two planks. My knees were on the nearest one towards the building. My toes were on top of the outside plank. The board was pretty hard to get up in place and I shoved it pretty hard and I pounded it with the hammer and I drew back to hit it again with the hammer and the board tipped in the back, the outside one. When the board tipped I swung backwards and I tried to hold myself forward and the bracket gave a jerk. Then I grabbed the front board, I wanted to hold myself, and the board tipped over and I fell. The board next to the building tipped over. I wanted to hold myself and it tipped over. I caught it on the edge next to the building. The plank tipped over and caught my finger in between and I fell down.” By the fall plaintiff was seriously injured. He had not been on the scaffold before the day of the accident, and had been at work there half an hour or more before he fell.
    Walter A. Brendecke and Paul C. Schussman, for plaintiff in error.
    Winston, Paths, Strawn & Shaw, for defendants in error; John Barton Paths, Johh Black and Walter H. Jacobs, of counsel.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

The question presented on the motion by the defendants to direct a verdict was, whether, taking as true the testimony most favorable to the plaintiff, and drawing therefrom the inferences most favorable to the plaintiff which could reasonably be drawn therefrom, the jury might properly find a verdict for the plaintiff. If so, the trial court erred in directing a verdict for the defendants; if not, the direction was proper.

The defendants were bound to use reasonable care to furnish the plaintiff a reasonably safe scaffold to work on.

Plaintiff in error contends that the evidence shows the following defects in the scaffold:

"(a) That two rear planks on which the plaintiff was working at the time of his injury only had two points of support, i e., rested on the single plank at the east end and on a bracket at the west end, while all the other planks had three points of support in that an additional bracket was beneath their center.

“(b) That the combined width of the two rear planks was at least twelve inches when absolutely tight together and that they were about one-half inch apart, while the center plank, which they overlapped and on which they rested at their east end, was only ten inches in width.

“(c) That the rear planks were either not nailed at all or insufficiently nailed.

“ (d) That the pin-hole in the rear bracket was in such condition that the pin would slide up and down and that this was not a general or usual condition.

“(e) That the placing of a brace at the right angle' of the bracket would tend to lift the bracket out of its support in the wall and when the plank tipped cause the bracket to jerk and to fall and when the brace fell the bracket would again move.”

The distance between the west bracket and the bracket next east was the same as the distance between the other brackets. We are unable to perceive any sufficient ground for the contention that the scaffold was defective because the west planks were supported by only two brackets, while the other planks were supported by three brackets, or any causal connection between the fact that the west planks were supported by only two brackets, and the fall of plaintiff from the scaffold. The west end of the planks of that part of the scaffold from which plaintiff fell were laid on the west bracket, and the outside plank was nailed to that bracket. The east end of said planks rested on the ten inch plank, and the outer edge of the outside plank extended beyond the outer edge of the ten inch plank not more than two inches. Walz, plaintiff’s witness, testified that he went on the scaffold immediately after the accident and found the outside west plank still in place, still nailed to the bracket, that the nail had not come out. The only evidence tending to prove that the outside plank tipped was the testimony of the plaintiff that it “tipped.” His face was towards the building. He did not testify that he saw the plank tip, or in which direction or to what extent it tipped, but merely that “the board tipped in the back; the outside one.” Plaintiff, to save himself from falling, caught hold of the inner edge of the inside plank and turned that plank over on the outside plank, and the plank so turned over by him was the only plank found out of place by Walz when he went on the scaffold after the accident.

Whether the jury might properly find as a fact that the scaffold was defective and not reasonably safe, because while the outside plank was laid on and nailed to the west bracket its east end rested on the ten inch plank and its outer edge extended two inches beyond the outer edge of that plank, it is not necessary for us to decide. To entitle him to a verdict against the defendants, plaintiff was bound to offer evidence from which the jury could reasonably find, first, that the scaffold was defective; second, that the defendants had notice thereof, or in the exercise of ordinary care would have had knowledge thereof, and, third, that he did not know of the defect and had not the same means of knowing such defect with the defendants. McCormick Har. Co. v. Zakzewski, 220 Ill. 522; Montgomery Coal Co. v. Barringer, 218 id. 327; Republic Iron Co. v. Lee, 227 id. 246.

The defect, if any there was, lay in the fact that the outer edge of the east end of the outside six inch plank extended too far beyond the outer edge of the ten inch plank on which it rested. Plaintiff worked on the ten inch plank nearly half an hour. He then walked on that plank to its west end and on to the two west six inch planks. He had full opportunity to observe the widths of the planks and how they were laid in respect to each other. He must therefore, we think, be held to have assumed the risk arising from the fact that the outer edge of one plank extended too far beyond the outer edge of the plank on which it rested.

As to the contention that the scaffold was defective because the outside plank was not nailed or was insufficiently nailed to the west bracket, it is sufficient to say that the testimony of Walz, plaintiff’s witness, that he nailed that plank to the west bracket, and that when he went on the scaffold immediately after 'the accident, he found that plank still nailed to the bracket, that the nail had not come out, stands uncontradicted.

The office of the pin was to hold the bracket at its proper height against the side of the building. The brace which ran from the angle of the bracket to the ground served the same purpose. It was only necessary that the pin or brace should hold the bracket in place, for in place, the weight placed on the horizontal arm of the bracket was supported by the diagonal braces which ran from the outer end of the horizontal arm to the lower end of the upright. By such braces the strain or pressure of the load on the horizontal arm came upon the upright, and through the upright upon the side of the building against which it was placed, not upon the pin or the ground brace. The fact that the hole in which the pin was placed was larger than the pin, is immaterial. The office of the pin and that of the ground brace, as has been said, was only to keep the bracket in place. There is no evidence tending to show that the west bracket was not at all times in place, and Walz went upon the scaffold after the accident and, without making any change in the scaffold other than putting back in place the rear plank which plaintiff had turned over upon the outer plank, used the scaffold until he had put on the remainder of the siding.

In our opinion, on the evidence, the trial court properly directed a verdict for the 'defendants, and we find no error in procedure.

The judgment of the Superior Court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    Minnie Offner, Administratrix of the Estate of Jacob Offner, deceased, Plaintiff in Error, v. The Erie Railroad Company, The Chicago & Erie Railroad Company and The Chicago & Western Indiana Railroad Company, Defendants in Error.
    Gen. No. 13,816.
    1. Master and servant—-.what failure to furnish reasonably safe place to work. A master employing a servant upon extra hazardous duty is bound to the exercise of reasonable care to furnish to such servant a place reasonably safe considered with respect to the dangers involved.
    2. Railroads—when lessor liable for negligence of lessee. A railroad company which has leased to another railroad company the right to use its franchises or part of the privileges thereof is liable for the negligence of such lessee company to the same extent as it is liable for its own negligence.
    3. Instructions—when peremptory should not be given at instance of defendant. The issues in an action at law should be submitted to the jury where the evidence in favor of the plaintiff, standing alone and uncontradicted, is sufficient to authorize the verdict in his favor.
    4. Evidence—what competent with respect to ordinary methods .of performing worh. It is competent to show the usual and ordinary methods of performing work in a switch-yard in which the plaintiff received his injury.
    Action in case for death caused by alleged wrongful act. Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed and remanded.
    Opinion filed April 17, 1908.
    Statement by the Court. This writ of error is prosecuted to reverse a judgment for defendants in error, hereinafter called plaintiff, in an action brought by the plaintiff against the defendants to recover damages for the alleged wrongful killing of Jacob Offner, plaintiff’s intestate.
    The first count of the declaration, after alleging that the defendants were railroad corporations and owned and controlled certain railroad tracks and railroad yards, avers that the plaintiff’s intestate was on October 5, 1903, employed by the defendants, and was at work in the Taylor street yard of the defendants; and while so at work was in the exercise of all due and ordinary care for his own safety; that the defendant had notice he was so at work upon the car in said yard; and that they carelessly and negligently and without notice to the plaintiff’s intestate ran and propelled a locomotive and a car or cars thereto attached upon said track on which he was at work, and then and there, through the negligence of the defendants, the wheels of the said ear rolled upon and over his limbs, and he then and there and thereby was so injured that he died from the effects thereof.
    The second count is similar to the first, except that it alleges that the defendants carelessly and negligently failed to use reasonable care to see that the place in which plaintiff’s intestate was at work was reasonably safe, but on the contrary allowed and permitted an engine with cars attached to be run upon the same track on which the car was standing where the plaintiff’s intestate was at work, and to be run against the said cars with great force and violence, whereby, etc.
    The third count, after the general introductory paragraph, is more specific in its averments, but is substantially the same as the second count.
    The fourth count, in addition to the allegations of the third count, avers the failure on the part of the defendants to notify and warn plaintiff’s intestate that the engine and cars were to be run on the track where he was at work, and that the death of said Offner was not caused by any want of ordinary care on his part, but solely by the negligence of the defendants; and that deceased left him surviving his widow and daughter, to whom damages may be distributed, and that plaintiff was duly appointed administratrix of his estate.
    On the trial in the Circuit Court, at the close of the plaintiff’s evidence and on the motion of each of the defendants, the jury were instructed to find the defendants not guilty. After denying the plaintiff’s motions for a new trial and in arrest of judgment the court entered judgment against the plaintiff on the verdict so returned.
    Theodore Proulx and Cyrus J. Wood, for plaintiff in error; Adler & Lederer, of counsel.
    William L. Reed and E. P. H. West, for defendants in error; William J. Henley, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

The peremptory instruction of the court and the errors assigned thereon present the question whether there was any evidence before the court and jury tending to prove the declaration or any count thereof.

The conclusion we have reached in this case is that the judgment must be reversed and the cause remanded for a new trial. In view of this conclusion we refrain from any discussion of the evidence, and from a consideration of the evidence for any other purpose than to determine the question above stated.

In our opinion, the evidence tends to show that the injury and death of the plaintiff’s intestate was caused by an extraordinary danger not ordinarily incident to the business of his employer, the Chicago & Erie Railroad Company; that the plaintiff’s intestate, at the time of the accident, was exercising all the care and caution required of him, and that he in no way contributed to the injury by any negligence on his part; that he was employed by the Chicago & Erie Railroad Company, which was negligent in failing to furnish him with a reasonably safe place to work in, considering that the business it was conducting and the work he was doing was more hazardous than other lines of employment; that the locomotive was operated by men working for the Chicago & Western Indiana Railroad Company, the owner of the yards and track where the injury occurred; and that the locomotive and crew were the property and servants of the Chicago & Western Indiana Railroad Company or its lessee (Pennsylvania Co. v. Ellett, 132 Ill. 654; Chicago & Erie R. R. Co. v. Meech, 163 Ill. 305; Chicago & Western Ind. R. R. Co. v. Newell, 212 Ill. 332); and that the locomotive and crew ran upon the same track on which plaintiff’s intestate was working, repairing a freight car, without giving any warning or signal, and collided with said freight car, causing the injury; that the Hue flag put up hy the deceased was a signal used in the yard where deceased was working, and was provided for that purpose; and that deceased left him surviving his widow and daughter, and that plaintiff in error had been duly appointed administratrix of thé estate of the deceased.

The evidence in the record tended to prove, in our opinion, the case laid in the declaration, and should have been submitted to the jury. It was therefore error to give the peremptory instruction. The issues in án action at law should be submitted to the jury where the evidence in favor of the plaintiff, standing alone and uncontradicted, is sufficient to authorize a verdict in his favor. McCann v. Mayer, 232 Ill. 507.

The witness Heinz testified that the deceased obtained a blue flag from a shanty where the men kept their clothes in the yard, and put it in a knuckle on the south end of the south car on the track on which the car stood which he was repairing. He was then asked by plaintiff’s counsel: “Q. Did you ever see Mr. Offner use a blue flag before that ? ’ ’ Obj ection was made by defendants to this question, and plaintiff’s counsel stated that he wished to show who used it and what it was used for. The court sustained the objection. Plaintiff’s counsel then asked the witness: “Q. Did you ever see the men who worked about those yards use a blue flag in the yards there?” The court sustained an objection to this question. Counsel then asked the witness: “Q. Did you ever use a blue flag yourself? A. Tes, sir.” The court struck out the answer.

We think this evidence was competent and that it was material error to exclude it. The evidence sought to be introduced bore upon the usual and ordinary method of conducting the business in the yard and what notice the flag gave, if any, and upon what were the ordinary hazards in that business as conducted, upon the care of the deceased for his own safety, and what risks were not ordinarily incident to the employment in which the deceased was engaged, and the question as to whether the deceased assumed the risk of injury. These questions were in the case and were for the jury to determine. Colson v. Graver, 80 Ill. App. 99.

For the errors named the judgment is reversed and the cause is remanded.

Reversed and remanded.


text:
    George Colbeck, Appellant, v. Marshall E. Sampsell, Receiver of Chicago Union Traction Company.
    Gen. No. 13,938.
    1. Trespasser—instruction as to when person seeking to board traction car becomes, approved. An instruction upon this subject as follows is approved:
    “If you believe from the evidence that the plaintiff was guilty of improper conduct on said car and that he was ejected from said car, then the court instructs you, as a matter of law, that the plaintiff had no right to again board said car, and in attempting to do so, if he did so attempt, he would not be a passenger on said car but would be a trespasser.”
    2. Instructions—how to be considered. The instructions given by the court are to be regarded as a series, and the omissions of one may be cured by the contents of another.
    Action in trespass for assault. Appeal from the Superior Court of Cook county; the Hon. W. H. McSurely, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed April 17, 1908.

      Morse Ives and H. E. Wynekoop, for appellant.
    John A. Rose and Frank L. Kriete, for appellee; W. W. Gurley, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

On October 29,1905, appellee was operating an electric street car line on West Taylor street in the city of Chicago. Stephen Swan was motorman, and Peter Morris was conductor of the car in question. Appellant, George Colbeck, on the above date, accompanied by his son, a boy about eleven years old, boarded a west-bound electric car at Clinton street and West Taylor street, and stood upon the front platform. There were four or five other passengers on the front platform. Appellant stood at the right hand side of the platform, and his boy stood behind the motorman.

It is claimed and contended by appellant Colbeck that his boy accidentally bumped into Swan, the motorman, on two occasions when the car started up at street crossings, and that the motorman turned and slapped the boy. Appellant thereupon interfered and the motorman used offensive language toward him, and without any provocation struck appellant with his controller on the head three times. Thereupon appellant struck the motorman, knocking him against the glass in front of the car and breaking the glass. Appellant further claims that the conductor of the car, Morris, struck him in the face and on his head with a transfer punch, and that the motorman and conductor together put him off the car. Appellant then attempted to get back on the car to get his boy, who was still on the car, and the motorman and conductor refused to permit him to go back on the car and again assaulted him.

Appellee’s contention is that there were five other passengers on the front platfonti. of the car, and that appellant stood so close to Swan, the motorman, that in working the brake-staff he tubbed against Colbeck’s stomach; that this was entirely unintentional on the part of the motorman; that after this occurred the second time, appellant called Swan vile names and struck Swan on the head, knocking Turn over against the gate on the south side of the car. The conductor came out of the car and pulled Colbeck away, Swan then used the reverse to stop the car because appellant being in the way he could not use the brake. Morris, the conductor, then told appellant he would have to behave himself or leave the car. Appellant refused and threatened the motorman. The conductor ordered the car stopped, and appellant was then put off the car about twenty-five feet west of Pesplaines street while the car was standing still, and using no more force than was necessary.

At this time, appellee contends, the boy got off the car. Swan denies that he struck the boy. Both the conductor and Swan deny that either of them struck appellant in the first fracas. After being put off the car, it is claimed that Colbeck again jumped on the car and attacked the motorman the second time, striking him on the head and in his face, while he held him by the throat. In this attack the conductor struck appellant with his fist, and Swan struck him once with the controller handle, but he did not kick him in the stomach at any time.

The jury returned a verdict of not guilty and the court entered a judgment on the verdict after denying a motion for a new trial.

It is urged as grounds for reversal of the judgment that the court erred in giving instructions fifteen and sixteen.

Instruction fifteen is as follows:

“If you believe from the evidence that the plaintiff was guilty of improper conduct on said car and that he was ejected from said car, then the court instructs you, as a matter of law, that the plaintiff had no right to again board said car, and in attempting to do so, if he did so attempt, he would not be a passenger on said car but would be a trespasser.”

As applied to the facts of this case we do not think the giving of this instruction was error. It is a conceded fact that appellant was put off the car, and that thereafter he again hoarded the car, as the evidence shows, not for the purpose of riding on the car, but for the illegal purpose of assaulting the motorman. In so doing he was a trespasser and not a passenger.

Instruction sixteen is as follows:

“If you believe from the evidence, under the instructions of the court, that the plaintiff was a trespasser on said car and that the motorman struck and injured him, then he cannot recover in this case and you should find the defendant not guilty.”

The objection is made that this instruction does not distinguish between the occurrences when appellant was first upon the car and those when he was last on the car, and the jury were misled by the instruction and might apply it to what occurred the first time appellant was on the car.

We think this was not reasonable or probable, in view of instruction fifteen which, with the other instructions given, formed one entire charge to the jury. C. C. Ry. Co. v. Tuohy, 196 Ill. 410. The instruction was in reality a part of instruction fifteen, although numbered separately, and with that instruction embraced but one subject, and contained the entire charge of the court on that subject.

It is further urged that this instruction ignores the element of force used by the motorman and conductor in ejecting appellant from the car.

This instruction proceeds upon appellee’s theory of the case, which was that in assaulting the motorman after he had been ejected from the car for improper conduct, appellant was not a passenger, but a trespasser on the car, and if in the assault upon the motorman he was struck and injured by him, appellant had no cause of action for any injury received by him against appellee. Appellee had a right to have the jury instructed on his theory of the case, if that theory was based on the evidence, and was in law a good defense. The instruction submits to the jury the question whether appellant was a trespasser in fact, and also the question of fact, whether, while he was so a trespasser, he was struck by the motorman and injured, as the evidence tends to show, and then declares what the legal result is as to the liability of appellee.

The jury could not have understood these instructions to refer to the time when appellant was a passenger on the car before he was ejected from it, for no question or contention was made on the trial that he was not a passenger at that time. The rule of law announced in Chicago City Ry. Co. v. Pelletier, 134 Ill. 120, and other cases cited by appellant as to the use of unreasonable and excessive force in expelling a passenger from a car, has no application to the situation contemplated by the instruction, and it was not error to ignore the element of the degree of force used.

These are the only errors urged in argument. Finding no error in the record the judgment is affirmed.

Affirmed.


text:
    Alphonse Lefkow, Appellee, v. Oel B. Taylor, Elof Johnson and Robert M. Mitchell, Appellants.
    Gen. No. 13,946.
    Pleading—what non est factum does not put in issue. A non-verified plea of non est factum does not put the plaintiff upon proof of the execution of the bond declared upon.
    Action of debt. Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed April 17, 1908.
    John Stuart Egberts, for appellant.
    Ft,op Johnson and Farlin H. Ball, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

This action was brought in the Municipal Court of Chicago by the appellee Lefkow, as administrator, to collect of the estate of one Margaret Taylor, deceased, on an appeal bond executed by appellants in an appeal from the Probate Court of Cook county, Illinois, to the Circuit Court by said Taylor from an order of said Probate Court directing him to pay to appellee as such administrator the sum of $973.

The declaration sets out the execution of the bond and its terms and conditions, the order of the Probate Court, and that on March-2, 1907, said order was affirmed in said Circuit Court, and that Taylor has not paid the money.

A plea of non est factum, not verified, was filed by appellant Johnson, the only defendant served with process, and plaintiff below, appellee, took issue on the plea.

The cause was tried on the issue thus presented by the court without a jury. The court found that the defendant Johnson was indebted to the plaintiff in the sum of $1,946 for his debt, and assessed the plaintiff’s damages at the sum of $1,071.40 and entered judgment therefor and for $10.35 costs, the debt to be discharged on the payment of damages. From this judgment this appeal is prosecuted.

The only point made in appellant’s brief and argument is that the plaintiff did not make out his case by his evidence.

The record shows that on the trial appellee offered in evidence the original appeal bond, and a certified bill of costs in the Circuit Court of Cook county. This was all the evidence necessary to maintain the action under the issues joined. It was not incumbent upon appellee to prove the execution of the bond, for the plea was not sworn to. Sec. 34, chap. 110, Starr & Curtis’s Revised Statutes; Horner v. Boyden, 27 Ill. App. 573; Herrick v. Swartwout, 72 Ill. 340. All the other averments of the declaration “stood solemnly admitted upon the record.” Shunick v. Thompson, 25 Ill. App. 619, 626. The costs of the additional abstract of record will be taxed against appellant.

The judgment is affirmed.

Affirmed.


text:
    Mary Shaughnessy, Appellee, v. George H. Holt, Appellant.
    Gen. No. 13,954.
    1. Pleading—when count stricken from record stands for certain purposes. A count stricken from the record by order of court, nevertheless remains for purposes of reference or as the basis for allegations of additional counts.
    2. Evidence—what competent upon question of personal injuries. A plaintiff may properly testify to subjective symptoms, including sensations, resulting from a test applied by physicians not seeking to treat but to qualify as expert witnesses.
    3. Evidence—to what expert may testify with respect to personal injuries. An expert may properly be permitted to testify that such an accident as happened to the plaintiff could cause the condition found upon an examination of the plaintiff.
    4. Evidence—what appropriate subject of expert testimony. Expert testimony is competent upon the question as to the effect of an automatic- elevator stop.
    5. Vebdict—when not disturbed as excessive. A . verdict for $7,500, rendered in an action on the case for personal injuries, is not excessive, where it appears that the plaintiff suffered serious injuries of a permanent character which materially reduced her ability to work and to earn a livelihood.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. A. H. Fbost, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed April 17, 1908.
    Statement by the Court. This appeal is from a judgment of the Superior Court in favor of appellee and against appellant for the sum of $7,500 for personal injuries claimed to have been sustained while a passenger in appellant’s elevator, October 20, 1902.

      The evidence in the record tends to show that appellee was employed on the twelfth floor of the Manhattan building in Chicago, which is owned by appellant. Appellee claims she entered the elevator at the ground floor of the building to go to the twelfth floor. After appellee entered the car, as she claims, it went up to about the tenth floor of the building, and a passenger signaled to go up as the car passed. The elevator man attempted to return for the passenger, but the car went on down to the main floor and struck with a thud and rebounded.
    According to the claim of appellant, appellee entered the car at the twelfth floor, and when the car in decending was between the second and third floors, the elevator man, as was his custom, tried to pull the operating cable running through the elevator cage for the purpose of reducing the speed of the car before it came in contact with the automatic device for stopping the car gradually at the ground floor. He found it impossible to move the cable, which, at its lower end, ran over a sheave-and connected with a valve which opened and closed an aperture in the cylinder.
    The cable failing to respond to the efforts of the elevator man, as above stated, the car continued its descent at full speed, striking the automatic device, and rebounded about a foot.
    The fall and rebound were sufficient to loosen the safety dogs which, when the car came to a full stop and rebounded about a foot above the floor, were set against the wooden guides, and held the car a foot above the floor.
    The elevator was operated by hydraulic power, and as the water entered the cylinder at one end it forced the piston head along in the cylinder. Cables were attached on traveling sheaves which ran over sheaves at the top of the building, and the ends were attached to the elevator car, thus applying the power to the car.
    Eight inches below the main floor level in the elevator shaft was a floor made of inch boards. From beneath this floor the cable which the elevator man handled to control the elevator ran over the sheave and np through a hole in the floor and through a hole in the bottom of the car up through the car.
    The cause of the accident, as shown by the record, was a piece of common garden hose, used by the elevator man around the operating cable to prevent the cable from blistering his hands, which, falling down through the bottom of the car to the sheave around which the operating cable ran, became wedged in between the cable and the sheave just below the bottom of the elevator shaft.
    The plaintiff, appellee, claims to have suffered from the shock a split of the head of the tibia, which is the large bone of the lower part of the leg, nervous injuries and injuries to her internal organs.
    The jury returned a verdict for the above amount against appellant, and after overruling motions for a new trial, and in arrest of judgment, the court entered judgment on the verdict.
    John E. Kehoe, F. J. Canty and Robert J. Folonie, for appellant.
    Burtt & Kriete and Francis J. Woolley, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The denial of the motion in arrest of judgment is urged as error. The contentions are that there was no valid declaration of appellee upon which recovery could be had, and, secondly, the court erred in sustaining demurrers to the pleas of the Statute of Limitations filed to the first, second and third amended counts and the tenth additional count.

Each of the first three counts of appellee’s original declaration, after stating the negligence upon which appellee predicated her right to recovery con-eluded, “by means whereof plaintiff was then and there injured as hereinafter set forth.” The original fourth count, which contained allegations of injuries, was stricken out by order of court entered March 1, 1905, .and a motion of appellee for leave to file an amended fourth count was overruled, and by this action of the court appellee abided. This left the declaration consisting of three counts, none of which, it is claimed, contained any allegation that appellee suffered injury to her person, or of what such injuries consisted. The record so remained until February 3, 1906, when appellee by leave of court filed additional counts to the declaration. The new additional counts stated no new cause of action, but each count alleged the same damages which were averred in the original fourth count. Appellant filed pleas of the Statute of Limitations to the fifth, sixth and seventh and tenth of these additional counts and the court sustained demurrers to the pleas.

In our opinion the original fourth count, although stricken out by the court, remained in the record as a basis for amended counts. The effect of striking this count out of the declaration was the same as sustaining a demurrer to it. The count was thus withdrawn from the consideration of the jury, but it was not taken out of the declaration as a subject of reference, or as a basis for the allegations of the additional counts. N. C. St. R. R. Co. v. Aufmann, 221 Ill. 614; C. & G. T. Ry. Co. v. Kinnare, 115 Ill. App. 132. We do not think the court erred in sustaining the demurrers to the pleas. As to the tenth additional count, it is an exact replica of the original second count except that the words, “and construction,” are inserted, and it is claimed that this amounts to, and constitutes, an entirely new claim of negligence, which was not injected into the case until after the Statute of Limitations had run.

Inasmuch as this count was instructed out of the case by the court in the first instruction, any controversy over it seems to be idle for that reason, and for the further reason that no question of construction arose in the case. No claim was made of defective or negligent construction, or that appellant should have used a different kind of elevator or a different kind of automatic stop. We therefore do not consider it necessary to pass upon the question whether it was error to sustain a demurrer to the plea to this count, for if the ruling was erroneous it became immaterial and harmless when the count was withdrawn from the consideration of the jury.

Errors are assigned on the rulings of the court in the examination of appellee as to the tests used by Drs. Cox, Pettyjohn and Stubbs, the sensations produced thereby, and appellee’s declarations at the time as to such sensations or want of sensation. The fundamental objection made to the evidence is that a party cannot make evidence for himself by his own declarations when such declarations are not a part of the res gestae.

It is somewhat difficult to state within a narrow compass the questions of evidence presented by the record in the examinations of appellee and the physicians, who examined her for the sole -purpose of testifying as to her condition, and not in the course of treatment of appellee.

It appears from the evidence that appellee is suffering from a deterioration of the nervous system known as neurasthenia. The test which the physicians applied to various parts of appellee’s body is known to neurologists as the “Bérlinski test.” This consists in the application of a test tube containing hot water, a test tube containing cold water, a piece of metal which feels cold when applied to a person’s skin in its normal sensitiveness, a piece of wood and a piece of cloth.

It is clear from the evidence that the existence of the symptoms was of importance in the diagnosis of appellee’s condition. Appellee’s testimony as to her subjective symptoms was competent. We see no sound objection to appellee’s testimony as to her sensations, or the absence of sensations, when the physicians applied the tests to her body, which they deemed necessary in arriving at a correct diagnosis of her nervous condition. Her testimony as abstracted is as follows:

“They (the three physicians) made tests with hot and cold and metal and wood. When they made these tests I closed my eyes. I was asked whether I felt or not in various parts of my body, and answered. When I felt it hot I said so. When they used the cold test and (I) felt it cold I said so. When they used anything different and said anything about it, I said whether I could or could not feel. When I had my eyes closed and they did anything that I felt I said so. I was asked whether I felt or not in various parts of my body during that examination when my eyes were closed, by these physicians. In that examination I answered correctly as to whether I felt. I answered truthfully.”

In substance this testimony, in our opinion, was competent and relevant.

After appellee had given this testimony, the physicians testified to the making of the examination substantially as testified to by appellee. They bared appellee’s limbs and applied the tests. Dr. Stubbs was then asked this question: “Assuming that when you made that examination her answers as to whether she felt hot or cold or how it felt to her were truthful, that she answered truthfully as to how it felt to her, what was the fact as to her actual sensitiveness and power to determine heat and cold, from your examination?”

To this question the doctor answered that appellee did not answer correctly; that she was correct on the right side, and incorrect on the left side.

Substantially the same question was put to the other physicians. Dr. Cox testified that appellee’s sensitiveness on the left side was not as great as on the right side. Dr. Pettyjohn answered: “There was what I termed defective sensation; that is, she could not tell whether it was a piece of metal, a piece of wood or a piece of cloth, and that is what I call defective sensation. I found it on the left leg only.”

We are of the opinion that the admission of this testimony was not erroneous. Consolidated Traction Co. v. Lambertson, 60 N. J. Law, 452.

On the authority of City of Chicago v. Didier, 227 Ill. 571, we hold that physicians who had examined appellee could properly testify that such an accident as happened to appellee could cause the condition which they found, and that on the hypothesis put to them they could see the relation of cause and effect between the injury and the subsequent physical condition of appellee as they found it on examination.

Error is assigned upon the rulings of the court in admitting the testimony of elevator experts, as to what effect an automatic stop, of the kind described by appellant’s witnesses as being in the elevator in question at the time of the accident to appellee, would have under the circumstances shown by the evidence, and when it was set to commence to close the valve when the car was two and one-half to three feet from the bottom of the shaft. The testimony was objected to upon three grounds, first, that the witnesses had not qualified as experts; second, that it was not a matter of expert testimony; and, third, it invaded the province of the jury. We think the witnesses had qualified sufficiently to entitle their opinions to go before the jury. Lawson, Expert Evidence (2d Ed.), p. 74. We think also that it was a subject for expert testimony. McGregor v. Reid, Murdoch & Co., 178 Ill. 465, 467; Slack v. Harris, 200 id. 96, 107; Springer v. Schultz, 105 Ill. App. 544, affirmed in 205 Ill. 144.

The questions whether the particular automatic stop used at the time in the elevator in question could be set so as to produce a gradual stop, and how high above the floor the car must be when the automatic stop commences to act in such an elevator as the one in question in order to produce a gradual stop, were also the subjects for expert testimony. We find no reversible error in the rulings of the court in the examinations of the elevator experts.

With reference to the action of the automatic stop device, the question as to whether the witnesses assumed there was a rope buffer or a rubber buffer was and is immaterial, as it seems to us, for the evidence is that the automatic stop is designed to operate before the buffer acts, whether it be rope or rubber. The buffer is not a thing against which the car strikes. It is in the end of the cylinder, and merely prevents the piston from striking and breaking the cast iron cross-head of the cylinder when it comes against it. Furthermore, the question assumed the fact that there was a rubber buffer in use as appellant claimed; and the evidence of appellant’s witness Anderson tended to show that a rope buffer was as good, if not better, than a rubber. There was no reversible error, we think, in the examination of these witnesses on this subject.

The elevator expert witnesses called by appellee were not permitted to, and did not testify to or make any comparisons between the safety appliances in use in the elevator in question and other safety appliances. To prove that they had seen and worked with safety appliances of various kinds, and understood them, was proper to show their experience and knowledge. This was not in effect giving evidence of the customary manner of the construction of safety appliances, and therefore was not incompetent under the rule stated in Hansell v. Clark, 214 Ill. 399 (413).

Our attention is called to what is claimed to be improper conduct on the part of counsel for appellee in making certain remarks before the jury tending to create a prejudice in their minds, and in the cross-examination of Dr. Learning. We do not think the record shows any serious misconduct on the part of counsel, or that what counsel said in argument, or his cross-examination of the witness, was of such serious nature as to justify us in reversing the judgment on that ground.

According to the testimony in the record, appellee suffered serious injuries of a permanent character. Her injuries were of such character that not only her ability to work is seriously reduced and circumscribed, but her health is permanently impaired. The amount of the damages is in the first instance a question for the jury. Unless the amount awarded by the jury is so excessive as to indicate that it is the result of passion or prejudice, or some improper motive or influence, we ought not to interfere. The damages awarded are not so large as to shock the sense of right, or lead the judicial mind to think that they are the result of passion or prejudice. We cannot regard them as excessive.

We are of the opinion that there is no error in the record which would justify us in reversing the judgment below.

The judgment is affirmed.

Affirmed.


text:
    Peter Fortune, Appellee, v. James F. Cassidy and Lawrence Hickey, Appellants.
    Gen. No. 13,959.
    1. Creditors’ bills—when conveyance in fraud of creditors. Held, under the evidence in this case, that the conveyances attacked were fraudulent as against creditors existing at the time of the making thereof, and likewise as to creditors becoming subrogated to the rights of such existing creditors.
    2. Subrogation—when doctrine of, applies to sustain creditor’s MU. A complainant may maintain a creditor’s bill to set aside a conveyance as fraudulent and subject it to the payment of a debt due him by reason of his becoming surety upon a bond covering a contingent liability which existed at the time of the conveyance but which became absolute and was discharged by such complainant after the conveyance had been made.
    Creditor’s bill. Appeal from the Circuit Court of Cook county; the Hon. L. Honobe, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed April 17, 1908.
    Statement by the Court. On May 24, 1905, appellee, Peter Fortune, filed in the Circuit Court of Cook county his bill of complaint, in.which he alleged that on December 13, 1904, in the Circuit Court of Cook county, he recovered a judgment against one Cornelius Hickey, the principal defendant named in the bill, for the sum of $2,812.62 and costs; that execution had been issued upon said judgment and delivered to the sheriff of Cook county, and by him returned on March 16, 1905, “No part satisfied.”
    The bill further alleges that said judgment remains in full force, unreversed and unsatisfied; that the bill is not exhibited in collusion with any person or persons for the protection of Cornelius Hickey from other creditors, but for the sole purpose of compelling payment of said judgment.
    The bill further alleges that on April 26, 1893, Cornelius Hickey, with Katherine McGuire and Patrick O ’Toole, executed and delivered their replevin bond in the sum of five thousand dollars, payable to the sheriff of Cook county, Illinois, and that default having been made in the conditions of said bond, on April 22, 1896, suit was brought thereon in the Circuit Court of Cook county, by James H. Gilbert, sheriff, for the use of Kate McGuire, administratrix, against Cornelius Hickey, Katherine McGuire and Patrick O’Toole, and judgment rendered against them on February 23,1898, for the sum of $2,030; that an appeal was taken by said defendants to the Appellate Court in and for the First District of Illinois, and an appeal bond was executed by said defendants, with complainant, Peter • Fortune, as surety; that said bond was executed December 5, 1898, in the penal sum of $4,100, and approved on December 13, 1898; that subsequently said judgment was affirmed by the Appellate Court and that complainant as surety on said bond paid judgment, and brought suit and recovered judgment against said Cornelius Hickey; that at the time he signed the replevin bond above mentioned the said Cornelius Hickey was the owner of certain real estate, and that after said Hickey signed said replevin bond and after suit had been brought thereon, but long prior to the rendition of the judgment in favor of complainant against said Cornelius Hickey, the latter, on February 6, 1896, by warranty deed, made a pretended conveyance of lot 1 to Kate Hayes; that said Kate Hayes, by warranty deed, dated July 24,1899, and recorded March 30,1901, made a pretended conveyance of said lot to one Bridget Drislain; that on December 10, 1904, said Bridget Drislain, by warranty deed, recorded December 13, 1904, made a pretended conveyance to Thomas Carey.
    The bill further alleges that on February 1,1896, the said Cornelius Hickey, by deed recorded May 2, 1896, made a pretended conveyance of the north half of lot 17 to said Kate Hayes; that by deed dated July 24, 1899, and recorded October 16, 1901, the said Kate Hayes made a pretended conveyance of said north half of lot 17 to said Bridget Drislain; and on December 12, 1904, by deed recorded December' 16, 1904, the said Bridget Drislain made a pretended conveyance of said north half of lot 17 to James F. Cassidy.
    The bill further alleges that by warranty deed, dated February 1, 1896, and recorded May 2, 1896, the said Cornelius Hickey made a pretended conveyance of lot 25 to Kate Hayes.
    Excepting Bridget Drislain, the bill makes all of the above named parties defendants and alleges that the said Cornelius Hickey, realizing his liability on said replevin bond and that he would thereafter probably become indebted to other parties by virtue of having become liable on said replevin bond, immediately conveyed all his real estate aforesaid, with the intention of defrauding complainant or any other person to whom he was then or might thereafter become indebted by reason of his having executed said replevin bond.
    By amendment to the bill, filed March 13, 1906, one Lawrence Hickey is made party defendant, and it is alleged that he pretends to be in possession of an unrecorded deed by which the said Kate Hayes conveyed and transferred to said Lawrence Hickey lot 25 in block 1 of C. B. Orvis ’ subdivision of the northeast % of the southeast 14 of section 7, township 38 north, range 14 east of the 3rd principal meridian, which is the lot referred to as lot 25 in the original bill.
    The several defendants, Thomas Carey, Cornelius Hickey, Kate Hayes, James F. Cassidy, and Lawrence Hickey, by separate answers, put complainant to strict proof of the allegations of his bill.
    The bill, in connection with the allegations as to the real estate owned by Cornelius Hickey previous to the rendition of the judgment upon which the bill is founded and subsequent to the time when the said Hickey became liable upon the replevin bond, described three separate pieces of real estate as follows:
    1. Lot 1 in block 13 in Dr. Snowden’s subdivision of the west y2 of the northwest % of section 17, township 38 north, range 14 east of the 3rd principal meridian.
    2. The north y2 of lot 17 in block 13 in Dr. Snow-den’s subdivision of the west y2 of the northwest % of section 17, township 38 north, range 14 east of the 3rd principal meridian.
    3. Lot 25 in block 1, in C. B. Orvis’ subdivision of the northeast % of the southeast % of section 7, township 38 north, range 14 east of the 3rd principal meridian.
    The bill alleges that the various conveyances to Kate Hayes and the conveyances by her to Bridget Drislain and Lawrence Hickey and the conveyance by Bridget Drislain to Thomas Carey and to James F. Cassidy were without consideration and fraudulent and void.
    The issues presented by the bill and the several answers thereto were referred to a master in chancery, who heard the evidence, transcribed and returned the same to court, accompanied by findings of fact and conclusions of law.
    The master’s report found against the complainant as to all of the defendants except Lawrence Hickey, and as to all of the real estate except that part alleged to have been conveyed to him by Kate Hayes, namely: lot 25 above described.
    Complainant filed objections to the master’s report, questioning the finding and conclusion of the master as to James F. Cassidy and the north % of lot 17, but did not question the finding and conclusion of the master as to Thomas Carey and lot 1.
    Lawrence Hickey filed objections to the master’s report questioning the findings and conclusions as to him and lot 25. All of these objections were overruled before the master; and upon order of court stood as exceptions to said report before the chancellor.
    The court by its decree found all the material allegations of the bill as to Cornelius Hickey, Kate Hayes and Lawrence Hickey to be true; that Cornelius Hickey on April 26, 1893, with two other parties, executed a bond for $5,000 for the plaintiff in a replevin suit; that the plaintiff was defeated in said case, and an action was brought upon said replevin bond in the Circuit Court of Cook county against Cornelius Hickey and the other obligors, and judgment was entered February 23, 1898, on said bond for $2,030. An appeal was taken from said judgment to the Appellate Court and an appeal bond was executed by Cornelius Hickey and his co-obligors, with complainant, Peter Fortune, as surety. The judgment was affirmed by the Appellate Court and by the Supreme Court. Suit was brought upon said last mentioned bond against complainant -and Cornelius Hickey and judgment was recovered against them and was paid by the complainant, who thereupon brought suit against Cornelius Hickey to recover, and in that suit he did recover a judgment in the Circuit Court of Cook county November 13,1904, for the amount so paid by bim upon said judgment, namely, $2,812.62, and an execution was issued thereon to the sheriff and was returned by him nulla bona on March 16,1905. Said judgment was not appealed from or reversed, and has not been paid, and is in full force and effect.
    The decree further finds that long before the rendition of the judgment last mentioned, and before complainant signed the appeal bond with Cornelius Hickey, but subsequent to the time when said Cornelius Hickey became liable on said replevin bond, Cornelius Hickey was the owner in fee simple of the following described real estate, to-wit: The north half of lot 17 in block 13 in Dr. Snowden’s subdivision of the W. % of the N. W. % °f section 17, township 38 N., range 14 east of the third principal meridian; also lot 25 in block 1 in C. B. Orvis’ subdivision of the N. E. % of S. E. % of section 7, township 38 north, range 14 east of the third principal meridian.
    The decree finds that after said Hickey became liable on said replevin bond, but prior to the rendition of' the judgment last aforesaid, said Cornelius Hickey by warranty deed dated February 1, 1896, and recorded May 2, 1896, in the recorder’s office of Cook county, made a pretended conveyance in fee of the north half of lot 17 aforesaid to the defendant, Kate Hayes; and Kate Hayes, by warranty deed dated July 24, 1899, and recorded October 16, 1901, made a pretended conveyance thereof to Bridget Drislain who made a pretended conveyance thereof to defendant James F. Cassidy by warranty deed dated December 12,1904, and recorded December 16, 1904.
    The decree further finds that by a warranty deed dated February 1, 1896, and recorded May 2, 1896, Cornelius Hickey made a pretended conveyance in fee of said lot 25 to Kate Hayes, who made a pretended conveyance thereof to Lawrence Hickey by a deed which was not recorded at the time the bill was filed, bnt was subsequently recorded.
    The decree then finds that all said conveyances were without consideration, were colorable, and fraudulent, and were intended by said Cornelius Hickey, Bridget Drislain and Kate Hayes, Lawrence Hickey and James F. Cassidy, as a means of enabling Cornelius Hickey fraudulently to prevent said pieces of land from being taken in satisfaction of any debt which said Hickey might be owing at the time of the conveyances made by him, and especially to defraud any one to whom he might be liable by reason of his signature to said replevin bond; that Cassidy had knowledge of the fraudulent character of the said various conveyances, and whether or not he paid to Bridget Drislain a valuable consideration for the said property, he acquired no title thereto which he can assert against complainant; that while the legal title to said properties is in Lawrence Hickey and Cassidy, said properties are subject to the claim of the complainant.
    The decree then adjudges that all said conveyances be vacated and set aside as against the complainant and the lien of his said judgment and that the defendants pay all the costs. The exceptions of the defendants to the master’s report are overruled, and the exceptions of the complainant thereto are sustained and in all other respects the master’s report is confirmed. The bill is dismissed as to the defendant Thomas Carey without costs.
    C. A. Williams, for appellants.
    W. S. Johnson, M. H. Hoey and Zach Hoeheimer, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

It is contended on behalf of appellants that the evidence fails to support the essential findings of the decree, and does hot warrant the relief given by the decree.

It appears from the evidence that in the month of April, 1896, a suit was brought in the Circuit Court of Cook county, Illinois, by James H. Gilbert, sheriff, for the use of Kate McGuire, administratrix, etc., on a replevin bond against the principal defendant, Cornelius Hickey, and others who had signed the bond with him, and in that action a judgment was rendered against Cornelius Hickey and his co-obligors in February, 1898, for $2,030. The record does not show the exact date when the replevin bond was signed, but the evidence Warrants the inference that it was signed several years before the above action was brought upon it.

It appears that an appeal was taken from said judgment to this court, and that the bond for such appeal was signed by the principal defendant herein and his co-obligors as principals and by the complainant below as surety. The bond was dated December 5, 1898. The judgment of the Circuit Court was afterwards affirmed by this court, and Fortune, appellee, being liable as surety on the appeal bond to pay the judgment, did in fact pay it.

Having paid the judgment, appellee Fortune brought suit against Cornelius Hickey, the principal defendant, to recover the amount so paid by him, and on December 13, 1904, a judgment was entered in that suit against said Hickey for $2,812.62 and costs of suit. Execution was issued thereon and was in due time returned unsatisfied, and that said judgment remains in full force and effect and wholly unpaid.

The evidence shows, in our opinion, that Cornelius Hickey formed the intention prior to February, 1896, of putting his property in the name of other persons for the purpose of avoiding the payment of any judgment that might be recovered against him and others on the replevin bond; and later, after suit had been instituted on the bond as stated above, and in the month of April, Hickey expressed such intention. Unless the conveyances hereinafter referred to were made subsequently to such expression of his intention and dated hack, he had in February, 1896, when he was liable on the bond, executed a warranty deed of lot one, in block thirteen, in Dr. Snowden’s subdivision described in the bill to Kate Hayes, a sister of his wife. He had also on February 1, 1896, executed the deed conveying the north half of lot seventeen, in block thirteen in the same subdivision, to Kate Hayes; and on the same day he executed a third deed of lot twenty-five, in block one, in C. B. Orvis’ subdivision, described in the bill, to said Kate Hayes. All these transfers were made at the same time, and without any of the circumstances attending them which usually and necessarily accompany the bona fide sale and purchase of real estate in the ordinary course of business. The deeds of said lots were not recorded until May 2, 1896. On July 24, 1899, Kate Hayes executed separate deeds of said lot one, and the north half of lot 17, to one Bridget Drislain, a niece of Cornelius Hickey. The deed of lot 1 was not recorded until March 30, 1901, and the deed of a part of lot 17 was not recorded until October 16, 1901.

It appears, we think, from the evidence that neither Kate Hayes nor Bridget Drislain had any money with which to purchase the property so conveyed to them, and that they did not pay any consideration for the properties, and that the conveyances were all made without consideration and for the fraudulent purpose charged in the bill.

It further appears from the evidence that Bridget Drislain, on December 12, 1904, the day before the judgment against Cornelius Hickey was recorded by appellee Fortune, conveyed the said north half of lot seventeen to appellant James Cassidy, and the deed was recorded December 16, 1904, three days after the recovery of said judgment. While appellant Cassidy swears that he paid Bridget Drislain $2,000 in cash when she delivered him the deed, we think it is exceedingly doubtful that such payment was in fact made. But whether the payment was in fact made or not, the evidence as to Cassidy’s previous relations with the principal defendant in the bill, Hickey, and with Kate Hayes and Bridget Drislain, and that he acted for all of them in these transactions, shows that appellant Cassidy had notice, at the time of his purchase from Bridget Drislain, that the transfers from Hickey to defendant Hayes and from the latter to Bridget Drislain were fraudulent and made with the intent to prevent the property from being taken in execution for the debt of the defendant Hickey.

It appears that Kate Hayes some time after May 2, 1896, conveyed said lot twenty-five to Lawrence Hickey, a son of Cornelius Hickey. The master and the chancellor found from the evidence that this transfer was also fraudulent and was made as a part of the scheme or plan to prevent the lot from being-levied upon for the debt of the principal defendant, Hickey. In this conclusion we concur.

The decree dismissed the bill as to the defendant, Thomas Carey, and as no cross-errors are assigned on that part of the decree, the validity of the deed to Carey is not before us.

It is urged, however, that the judgment upon which the bill is based was rendered December 13, 1904, nearly nine years after the transfers of the real estate by Cornelius Hickey to Kate Hayes, and that the transfers were made nearly three years before appellee Fortune signed the appeal bond, under which he afterwards paid the judgment against Hickey; and appellee Fortune was not a creditor of Hickey at the time of the conveyances, and could not at the time he became surety on the appeal bond have relied upon the ownership of the property in question by Cornelius Hickey; and these facts show that it is impossible that Hickey could have intended to defraud Fortune by the conveyances or to obstruct him in the collection of any just debt, and therefore the decree should be reversed.

This contention is too narrow in its premises to be sound. It is to be observed that the debt for which the appellee Fortune recovered the judgment upon which his bill is based arose directly out of the original liability on the replevin bond which was executed before the original transfers of the real estate by Hickey to Hayes were made. By signing the appeal bond as surety, Fortune made himself responsible for the payment of this original liability in case the judgment therefor was affirmed. When the judgment was affirmed, he paid it, and by that fact became subrogated to all the rights and equities of the owner of the indebtedness, and stood in the shoes of the original creditor as regards the right to have the conveyances set aside, if fraudulent and colorable as to such original creditor. This right of subrogation is an established principle of equity, and is stated in Eddy v. Traver, 6 Paige 521, quoted in Lochenmeyer et al. v. Fogarty et al., 112 Ill. 572, at page 583, as follows: “It is an established principle of equity that sureties, or those who stand in the situation of sureties for those who pay a debt for them, are entitled to" stand in the place of the creditor, or to be subrogated to all bis rights as to any fund, lien or equity which he may have against any other person or property on account of the debt.” As said in 1 Leading Cases in Equity, page 144: “Moreover, as soon as the surety has paid the debt an equity arises in his favor to have all the securities, original and collateral, which the creditor holds against the person or property of the principal debtor, transferred to him, and to avail himself of them as fully as the creditor could have done. For the purpose of obtaining indemnity from the principal, he is considered as at once subrogated to all the rights, remedies and securities of the creditor—as substituted in the place of the creditor, and to enforce all Ms liens, priorities and means of payment, as against the principal, and to have the benefit even of securities that were given without his knowledge. ’ ’ This doctrine is held in numerous cases in the courts of this state.

In our opinion, the evidence in the record justifies the inference that Cornelius Hickey was the owner of the property described in the conveyances in question when he signed the replevin bond, and that he executed the conveyances of the property after he became liable on the bond as alleged in the bill of complaint ; and that the conveyances are all tarred with the brush of fraud, and appellee is entitled to the relief given him by the decree.

The decree is affirmed.

Affirmed.


author: Mr. Presiding Justice Holdom

text:
    Chicago Terminal Transfer Railroad Company v. City of Chicago.
    Gen. No. 13,770.
    1. Railboads—when liability to repair viaduct arises. A railroad by accepting an ordinance conferring upon it special privileges becomes obligated to perform the conditions of such ordinance which consist, among other things, of a requirement to keep viaducts in repair.
    2. Viaducts—upon whom duty rests to apportion cost of repair among railroads jointly obligated therefor. It is primarily the duty of the city council to apportion among several railroads the cost of repairing a viaduct, such railroads being jointly liable for such repairs.
    Trepass on the case. Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed April 20, 1908.
    Rehearing denied May 4, 1908.
    Jesse B. Barton, for plaintiff in error.

      George W. Miller, Emil O. Wetten and Charles M. Haft, for defendant in error; Edward J. Brundage, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The City of Chicago sued the Chicago Terminal Transfer Railroad Company in the Municipal Court of Chicago for the sum of $4,009.11, and recovered a judgment therefor.

The parties will be referred to in this opinion respectively as the city and the railroad company.

The railroad company own and operate under appropriate city ordinances certain railroad tracks in the city of Chicago, which at Taylor street parallel the Chicago river on both sides. Certain tracks of the Chicago, Burlington & Quincy Railroad Company and of the “Pennsylvania Lines” also at this point parallel the railroad company’s tracks for some distance north and south of Taylor street. Under certain other city ordinances a viaduct consisting of several spans was erected across all the railroad tracks above mentioned, which, with a bridge constructed by the city connecting with this viaduct at the east and west ends thereof, constitute an uninterrupted highway between those portions of Taylor street which lie east and west of the Chicago river.

On September 24, 1900, the city council passed an ordinance amending an ordinance passed July 16, 1900, granting certain rights to the railroad company, upon the further condition that it would keep in good condition and repair all viaducts then or thereafter erected spanning the tracks and right of way then or thereafter operated by it, which ordinance was accepted by the railroad company. While there is evidence that this amendatory ordinance was repealed December 8, 1902, there is no proof that it was not in force at the time the repairs in question were made.

A girder span composing part of the viaduct being in a condition of disrepair, and the railroad company upon being notified of such, fact by the city and requested by it to make the necessary repairs, refusing so to do, the city in the latter part of the year 1902, at an expense of $17,117.39 put the same in a proper condition of repair. The city procured reimbursement for this outlay to the extent of the whole amount, less the sum here in dispute, by the West Chicago Street Bailroad Company—who operated a double track street railroad over the bridge and viaduct— paying $5,090.05, and the Chicago, Burlington & Quincy Bailroad and the “Pennsylvania Lines” paying $4,009.11 each.

There is substantially no contest regarding the cost of the repairs to the viaduct or the liability of the railroad company to bear and pay a part of such cost. But the question here projected concerns the amount for which the railroad company is liable under the facts in evidence and the law applicable thereto.

The railroad company insist that because their interest is limited to one-half of one of the eleven tracks under the Beach street span, that it is only liable for the.sum of $1,631.18.

Having in mind the contention of the railroad company in the Municipal Court and the admission contained in its printed brief and in the oral argument of the case in this court, the question of primary liability is not before us for decision. On the admitted liability for a portion of the cost of such repair, the question remaining for determination is as to what portion of such cost is it liable. But were it otherwise, and the record was barren of any admission of liability, we think it clear that under the amended ordinance of September 24, 1900, supra, the railroad company assumed, by its acceptance of such amended ordinance, a liability for keeping the viaduct in repair. If it is to be held liable for an equitable part of such cost, the facts entering into the calculations necessary to be made in ascertaining such equitable proportion must be established by the proofs. We find no evidence in the record from which the court can make the calculation or fix the amount of such liability.

To apportion the cost of such repairs and determine whether or not such cost shall be apportioned among the companies whose tracks are laid under the viaduct, or whether such cost shall be paid by one of such companies, is primarily the duty of the city council. In illustration of this we cite C., B. & Q. R. R. v. Nebraska, 170 U. S. 57, and quote the following language of the Supreme Court of Connecticut, adopted by the court in N. Y. & N. E. R. R. v. Bristol, 151 U. S. 556:

“ ‘The legislature having determined that the intersection of two railways with a highway in the city of Hartford at grade is a nuisance, dangerous to life, in the absence of action on the part either of the city or of the railroads, may compel them severally to become the owners of the right to lay out new highways and new railways over such land and in such manner as will separate the grade of the railways from that of the highway at intersection; may compel them to use the right for the accomplishment of the desired end; may determine that the expense shall be paid by either corporation alone, or in part by both; and may enforce obedience to its judgment. ’ ” The court further say in the Nebraska case: “Another ground of complaint is that the Act in question delegated to the municipality authority, in cases where two or more railway companies owning or operating tracks across public streets, to impose the cost and expense of constructing and maintaining viaducts over the same upon either or any of such companies, and that the city ordinance, in execution of such authority, imposes upon two of the four companies named in the record the entire expense of the repairs in question, and this is said to deny the plaintiff in error the equal protection of the laws. But it is not easy to see why the plaintiff in error can complain that the city omitted to bring in those companies as parties. Again it is said that the apportionment made by the ordinance of the extent of the repairs, one-third to the plaintiff in error, and two-thirds to the Union Pacific Railway Company, was arbitrary, without notice, and contrary to plain principles of justice and equality. But if, as we have seen, it would have been competent for the legislature to put the burden of these repairs upon one of the parties, or to have apportioned them among the parties as it saw fit, so it may make a due apportionment through the instrumentality of the city council. The latter was not directed to proceed judicially, but to exercise a legally delegated discretion.”

The need for the erection and maintenance of the viaduct as an approach to the bridge crossing the Chicago river at Taylor street and the grade at which such viaduct should be erected and maintained, arose from there being railroad tracks running parallel to the river, and the consequent necessity of crossing them by such viaduct. Whether the tracks were few or many, the viaduct was essential for the protection of foot and vehicular traffic. The power to determine which of the track owners should pay for repairs and maintenance is not vested in the law department of the city, its counsel or attorney, or in the engineering department of the city, but the city council, as we have seen, has full and exclusive control of the matter of such apportionment and may make such order as to the payment of the cost of such repairs as in its judgment it may deem proper. It has not done so, so far as the record discloses. By failing so to do, the city has not laid the foundation of a case entitling it to recover the amount of its claim so informally presented for payment.

The judgment of the Municipal Court, not being sustained by the evidence, is reversed, and the cause remanded for a new trial consistent with the views here .expressed.

Reversed and remanded.


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    Smith Cochran v. The People, for the Use of Martha E. Hunt.
    Gen. No. 13,788.
    1. Ne exeat—character of proceeding. The writ of ne exeat is a civil proceeding and the bond required to be given to exempt a defendant from incarceration and detention in the county jail thereunder is bail in a civil case.
    2. Bail bond—when recovery upon, will not he sustained. In the absence of the issuance of a capias and a return thereon within ten days, as provided by section 20 of chapter 16 of the Revised Statutes, recovery upon a bail bond given in a proceeding by writ of ne exeat will not be sustained.
    Action of debt. Error to the Municipal Court of Chicago; the Hon. William N. Cottbell, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and judgment here.
    Opinion filed April 20, 1908.
    Francis M. Lowes and Thomas Marshall, for plaintiff in error.
    F. A. Bingham, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This writ of error is sued out to reverse a judgment for $327 and costs assessed as damages for the breach of the condition of a bond executed by plaintiff in error as surety for Hascall E. Hunt, the principal, and running to Thomas E. Barrett as sheriff of Cook county. This bond was given to release Hascall E. Hunt from further detention in the Cook county jail, where he was held under a writ of ne exeat issued at the instance of his wife, Martha E. Hunt.

Many questions are raised and argued under various assignments of error. But one question of those raised being of such controlling importance as to render a discussion of the remainder unnecessary, "we shall confine our decision to this one point.

At the conclusion of the evidence of defendant in error in the Municipal Court, counsel for plaintiff in error moved the trial judge for a finding in his favor upon the following among other grounds:

“5th. The statutes of Illinois regarding bail bonds have not been complied with in this: there has been no issue of capias and return thereon within ten days before any given term to fix the liability of bail. ’ ’

The whole matter rests upon the solution of the question whether or not the bond sued upon is a bail bond. Defendant in error contends that this bond is not a bail bond, and that section 20, chapter 16, R. S., title “Bail in Civil Cases, ’ ’ has no application. The section reads:

“Hereafter no suit shall be commenced upon any bail bond in any civil action, until a writ of capias ad satisfaciendum shall have issued against the defendant in the original action, directed to the sheriff of the county in which such defendant was arrested, and such sheriff shall have returned that the defendant was not found in his county. If any action shall hereafter be commenced upon such bond, and it shall not appear upon the trial thereof that the writ of ca. sa. was issued and returned in the manner hereinbefore mentioned, a verdict shall be found for the defendant. It shall also be necessary to charge bail that such writ of ca. sa. should be issued and delivered at least ten days before the return day; thereof to the sheriff of the county, or officer to whom it may be directed; such sheriff or other officer shall endeavor to serve such writ upon defendant, any directions which he may receive from the plaintiff or his attorney to the contrary notwithstanding.”-

The ne exeat statute, chapter 97, R. S., in and by section 8 provides: “The writ of ne exeat shall contain a summons for the defendant to appear in the proper court and answer the petition or bill, and upon the writ being served upon the said defendant he shall give bond with surety, * * * and in default of giving such security he may be committed to jail, as in other cases for want of bail.” Section 9 provides for a surrender of the defendant by the surety “in the same manner that bail may surrender their principal and obtain the same discharge.”

The writ of ne exeat is a civil proceeding, and the bond required to be given to exempt a defendant from incarceration and detention in the county jail thereunder is bail in a civil case. The provisions of the statute referred to admit of no other interpretation. Such is but the reasonable interpretation upon the words found in the statute. The bond given for release of a defendant from the pains of imprisonment imposed by the command of the writ, is denominated in the ne exeat statute, bail, and a surrender of the. principal by the surety is directed to be made in the same manner as in other cases where bail is given. A bail bond is “a specialty by which the defendant and other persons become bound to the sheriff in a penal sum proportioned to the damages claimed in the action, and which is conditioned for the due appearance of such defendant to answer to the legal process therein described, and by which the sheriff has been commanded to arrest him. ’ ’ Bouvier’s Law Dictionary, Yol. 1, p. 211. The bond in this record has the quality and requisites of a bail bond as defined by Bouvier, supra. It served the purpose of bail by releasing the defendant from the imprisonment which, but for it, he would have suffered. It is consequently a bail bond given in a civil case.

The statute, section 20, chapter 16, supra, makes it a condition precedent to the right of recovery upon a bail bond that a writ of capias ad satisfaciendum shall issue and be returned non est inventus. This statute is but an enactment of the rule at common law.

While it may not, under the Municipal Court Act, be necessary in the first instance to aver that the writ of capias ad. res. was issued and returned non est -inventus, proof of these essentials to a recovery cannot be dispensed with. Murphy v. Summerville, 2 Gilm. 360.

The judgment of the Municipal Court is reversed, and as the trial was before the court without a jury, we will do here what, in onr judgment, the Municipal Court should have done—enter a finding for plaintiff in error, the defendant below.

Reversed.


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    West Side Metal Refining Company v. City of Chicago.
    Gen. No. 13,791.

      Licenses—what not junto shop or secondhand store. Held, from the evidence in this case, that the defendant did not conduct either a junk shop or a second-hand store, within the meaning of municipal ordinances requiring the keepers of such establishments to take out licenses.
    Action to recover penalty for violation of ordinance. Error to the Municipal Court of Chicago; the Hon. John C. Scovee, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and judgment here.
    Opinion filed April 20, 1908.
    Benjamin E. Cohen, for plaintiff in error; H. J. ¡Rosenberg, of counsel.
    G-eorge H. White, for defendant in error; Henry M. Seligman, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Plaintiff in error was fined $100 for the violation of section 2040 of the Revised Municipal Code of Chicago, and has sued out this writ of error to reverse that judgment. The contention of the prosecution is that plaintiff in error, West Side Metal Refining Company, keeps a “junk shop” in Chicago, and at the time of the issuance of the summons against it was carrying on the business of a junk dealer without first having obtained a license so to do, pursuant to section 2040 supra of the Municipal Code. Said section 2040 is in these words.

“2040. (Doing business without a license prohibited.) Ho person shall exercise, carry on, or engage in the business of keeping a junk shop or what is commonly called a junk shop, for the purchase, sale, barter, exchange, or other dealing in or storage of rags or old rope, paper or bagging, old iron, brass, copper, tin, slush or lead, empty bottles or other junk, nor exercise, engage in, or carry on any such business at any other house or place than that designated in his license; or draw or drive, or cause to be drawn or driven, through the streets of this city, any handcart, wheelbarrow, or other car or vehicle, or use any boat or other kind of vessel, for the purpose of collecting or disposing of such articles; nor shall any person -be entitled to have a cart or carts, boat or boats, or other vehicle or vehicles, to be used for the aforesaid purpose, without being first licensed by the mayor for such purpose. Every person who shall violate any of the provisions of this section shall be subject to a fine of not less than twenty-five dollars, nor more than one hundred dollars, for each offense. ’ ’

The evidence develops that the West Side Metal Refining Company has its place of business at 169 Maxwell street, Chicago; that it is a dealer at wholesale in metals ; that it buys old and new metals in large lots of not less than 500 pounds to carload lots.; that it refines about one-fourth of all the metal it buys; that it sells its metals to foundries at wholesale; that it has no dealings with peddlers, and does not deal in old iron, old bottles, or any articles of a kindred character.

Counsel for the city of Chicago say in their brief that “a * junk shop’ is a place where junk is bought and sold.” The evidence found in the abstract, against the fairness of which no complaint is made, is silent as to plaintiff in error trafficing in any articles which can be fairly said to constitute junk. The uncontradicted proof is that plaintiff in error buys and sells old and new metals and refines one-fourth of the metals which it purchases. And furthermore, that it does not deal in old iron, bottles, or anything of that kind. Counsel further say “a retail dealer is one who sells in smaller quantities than the wholesale dealer, and who sells to the consumer,” but we find in the record evidence, uncontradicted, that plaintiff in error is a wholesale dealer in metals; that is sells to foundries and has no dealings with peddlers. Police officer Sullivan testified that “it does not buy any small quantities, ’ ’ and officer Seerey corroborates this statement in his evidence where he says, “It does not buy any metals in small quantities.”

If it were material for us to decide the question mooted by the counsel for the city in their brief as to whether or not plaintiff in error was a wholesale or retail dealer, we find nothing to overcome the testimony of its president that its business was that of a wholesale dealer; nor is such statement in the slightest degree in conflict with the testimony of police officers Sullivan and Seerey that plaintiff in error did not buy metals in small quantities.

In the City of Chicago v. Reinschreiber, 121 Ill. App. 114, it was held that one who bought and sold old and new bottles exclusively was not a dealer in junk. If one who deals exclusively in old and new bottles is not a “junk” dealer, by what process of reasoning does one who deals in old and new metals, refining one-fourth of such metals, become a junk dealer, or the keeper of a junk store? The proposition itself would be self-refuting if it did not partake somewhat of the nature of the ludicrous. The Century Dictionary’s definition of junk is: “Worn out and discarded material in general that may be turned to some use; especially old rope, chain, iron, copper, parts of machinery and bottles gathered or bought up by tradesmen called junk dealers ; hence rubbish of any kind; odds and ends.” Surely it cannot be said that the refining of metals comes within the definition of articles “bought up by tradesmen called junk dealers.”

In City of Duluth v. Bloom, 55 Minn. 97, the court say: “Every junk shop is a second-hand store, but not every second-hand store is a junk shop. ’ ’ To call a corporation which has no dealings with peddlers, but refines metal and sells its metal product to foundries a dealer in junk, does violence to logic and perverts the idiom of our vernacular.

Plaintiff in error has neither a junk shop nor a second-hand store.

The creating of ordinances such as the one under discussion is an exercise by the city council of the police power, and such ordinances are enacted because of the likelihood, grounded on experience, that junk may have been stolen or pilfered, and for protection against such larcenies the traffic is regulated by ordinance; and as said in City of New York v. Vanderwater, 113 N. Y. App. Div. 456, so we say: “It seems clear that the general character and scope of the business of the defendant does not fall within the description of a dealer in junk. There is a radical difference between the buyer of great masses of metal weighing tons at a time * * * and one who may buy old bottles, scraps or pieces of metal, slush, old rope and the like, which might readily be pilfered or stolen and carried away secretly to be sold by the culprit. It is the business of this character which is to be licensed. ’ ’

The proof does not establish that plaintiff in error is either a dealer in junk or the keeper of a junk store. In carrying on its business without a license from the municipality of Chicago it did not violate section 2040 'of its ordinance, supra. The fine imposed by the Municipal Court upon plaintiff in error is not warranted by the proofs, and its judgment is therefore reversed and a finding is entered here in favor of plaintiff in error, and it is discharged from the fine and prosecution.

Reversed.