text:
    J. A. Brammell et al., Appellees, v. O. S. Wolf et al., Appellants.
    1. Limitations—new promise. Where a debt has been merged in a judgment, a new promise will not prevent the running of the statute of limitations.
    2. Appeals and errors—when a reversed canse will not he remanded. Where on appeal a judgment is reversed because the cause of action is.barred by the statute of limitations, it will not be remanded.
    Appeal from the County Court of Madison county; the Hon. J. E. Hillskotter, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed.
    Opinion filed June 5, 1912.
    J. B. Harris, for appellants.
    Edward L. Maher, for appellees.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This is an appeal from a judgment for $22.30 rendered by the County Court of Madison county, in favor of appellees and against appellants, in a suit commenced before a justice of the peace, and from thence taken to that court.

This suit was commenced May 9, 1910, on a judgment rendered against appellants and in favor of appellee J. A. Brammell for $52.60, by a justice of the peace of Madison county, on January 13, 1900.

Appellants relied for defense upon the claimed payment of the judgment and the statute of limitations. They also insisted below that the suit should be dismissed, because of a misjoinder of parties plaintiff. It is only necessary for us, however, to'consider the question whether the statute of limitations can be successfully invoked by appellants here, as a decision of that question, favorable to appellants, will fully dispose of the suit.

Section 16, art. 11 of the Act of 1895, in relation to Justices and Constables, which yet remains in force, provides, “An action may be brought upon a judgment of a justice of the peace at any time within ten years next after the rendition thereof and not after-wards.” More than ten years having elapsed after the original judgment Was rendered, and before this suit was commenced, appellants were entitled to rely upon the bar provided for by the statute. Appellees, however, relied upon a new promise to pay the debt which they sought to establish, by proof tending to show that in the years 1900, 1901 and 1902, one of appellants had performed certain services for appellees, for which the latter claimed they gave credit upon the judgment.

In the case of Ludwig v. Huck, 45 Ill. App. 651, which was decided before the statute of limitations above quoted was ena'eted, the question was under consideration as to whether certain provisions of the statute of limitations then existing and now contained in sections 15 and 16 of chapter 88 of the Revised Statutes, were applicable to judgments of justices of the peace, and if so whether a new promise would prevent the running of the statute. It was there said by the court: “The original indebtedness of appellants to appellee was merged in the two judgments sued on in this case; the original causes of action were discharged by these judgments and no contract or debt remained which could be made the subject-matter of a new promise to pay.” This language would apply with special force to a suit arising since the enactment of the statute contained in the act in reference to justices and constables above quoted, which expressly provides that such an action may be brought within ten years after the rendition of the judgment “and not afterwards.” The judgment of the justice of the peace against appellants, entered in 1900, was barred by the statute of limitations and appellees were not entitled to judgment thereon.

The judgment of the court below will accordingly be reversed, and as appellees cause of action is barred by the statute of limitations, so that no recovery can be had thereon, the cause will not be remanded.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Presiding Justice Higbee

license: Public Domain

text:
    Michael Ankenbrandt, Appellant, v. W. W. Joachim, Appellee.
    1. Druggists—failure to label drugs sold. The failure to perform the statutory duty of placing labels on drugs sold constitutes negligence per se.

      2. Druggists—failure to label drugs does not relieve purchaser from, exercise of reasonable care. The negligence of a druggist in' failing to label drugs sold, as required by statute, does not relieve the purchaser from the exercise of reasonable care and caution in their use.
    3. Appeals and errors—estoppel to assert error. A person cannot assign error on an erroneous principle in an instruction given for his opponent where he has himself recognized such principle in an instruction procured by him.
    Appeal from the Circuit Court of Wabash county; the Hon. J. R. Creighton, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed June 5, 1912.
    George P. Ramsey and Thomas H. Creightons, for appellant.
    E. B. Green and Theodore G. Risley, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This action grows out of the following facts, shown by the proofs: Appellant who is a farmer and at times practices veterinary surgery, went to appellee’s drug store, in Bellmont, Illinois, on February 28, 1911, and purchased from him a bottle of castor oil and some Rochelle salts, which he desired to take himself and also some sulphate of zinc to make a wash to be applied to a colt’s foot. The salts and sulphate of zinc were wrapped in separate packages and the latter was then attached to a bottle containing the oil by a rubber band. When appellant reached his home, he placed the bottle and the package containing the sulphate of zinc, the two being still attached to each other by the rubber band which was around them, on a shelf in his room, and the other package, containing the Rochelle salts, he placed on a shelf in a cupboard with medicine used by him in his veterinary work. A few days later, appellant wished to take a dose of the salts and his wife undertook to prepare the same for him. She took the package attached to the bottle, put a portion of its contents in water and gave the preparation to appellant to drink. Soon after taking it he became violently ill and, a physician having been called, it was discovered that appellee had taken the sulphate of zinc. He suffered severely from the effects of the poisoning and was confined to his bed some ten days.

Appellant brought suit to recover for his injuries, alleging that appellee had negligently and carelessly placed said sulphate of zinc, which was a poison, in the same package with castor oil without having labeled the former a poison and without placing labels of any kind upon any of said packages as required by Rev. Stat. chap. 91, sec. 30; that by reason of said negligence of appellee, the wife of appellant, while in the exercise of reasonable care for the life and safety of her husband, administered to him the poison, intending and believing that she was administering the Rochelle salts, whereby appellant was poisoned and made sick.

There was a verdict in favor of appellee and a judgment against appellant for costs.

On this appeal appellant questions the correctness of the third instruction given for appellee, and insists that the verdict was against the weight of the evidence. The instruction complained of, told the jury that even if they found that appellee had failed to label the drugs, as required by law, yet that fact would not relieve appellant from the exercise of reasonable care and caution in using the same to prevent injury to himself, and if they further believed from the evidence that appellant knew he had purchased sulphate of zinc with the Rochelle salts, and through his own negligence and want of reasonable care and caution, took the sulphate of zinc instead of the salts, and was thereby made sick and injured, he could not recover for such injury.

We are inclined to agree with appellant in the theory, that if appellee failed to perform his statutory duty to place labels upon the drugs sold, such omission on his part constituted negligence per se. C. & E. I. R. R. Co. v. Goyette, 133 Ill. 21.

But such act of negligence on the part of appellee would not relieve appellant from the exercise of reasonable care and caution on his part in using the drugs. It is a fixed rule of law in this state, that, “Where a party seeks to recover damages for a loss, which has been caused by negligence or misconduct, he must be able to show that his own negligence or misconduct has not concurred with that of the other party in producing the injury; and the burden of proof is upon the plaintiff to show, not only negligence on the part of the defendant, but also that he exercised proper care and circumspection, or, in other words, that he was not guilty of negligence.” West Chicago St. Ry. Co. v. Liderman, 187 Ill. 463, and cases there cited.

Statutes such as the one above referred to must be distinguished from a statute such as that providing for the health and safety of persons employed in coal mines, which itself creates a liability for any injury tion of it, or any wilful failure to comply with its to person or property, occasioned by any wilful viola-provisions, under which it becomes unnecessary for the plaintiff to prove, before he can recover, that he was in the exercise of ordinary care and caution for his own safety at the time an injury occurred to him. Browne v. Siegel, Cooper & Co., 191 Ill. 226.

Appellant himself recognizes the rule requiring ordinary care on his part to entitle Mm to a recovery in his instructions Nos. 3 and 4, so that even if the instruction complained of by him, was not correct he would be in no position to take advantage of the error.

Upon the question as to whether or not appellee placed labels upon the packages, there was a controversy in the evidence. Appellant testified that there were no labels or directions upon the packages and in this he was corroborated by his son. Two of appellant’s brothers testified that after appellant had taken the poison, they saw the package, out of which it was said to have been taken and there were no marks or labels upon it, and another witness swore that he saw the package and did not recollect seeing any mark or label upon it. The wrapper, however, in which the poison had been contained, was destroyed prior to the trial and proof was not introduced to show that the one to which the last three witnesses testified was the one out of which the poison was really taken. On the other hand appellee swore positively that he put labels on the packages and that the one containing the poison was marked “Poison. Sulphate of Zinc. W. W. Joachim, Bellmont, Ulinois.”

The question as to whether the packages were marked in the manner required by law, as well as the further question as to whether appellant was at the time he took the poison in the exercise of ordmary care for Ms own safety, were questions of fact for the jury, and the proofs upon these questions were such that we do not feel at liberty to disturb their verdict.

The judgment of the trial court will be affirmed.

Judgment affirmed,


text:
    John Davis, Appellee, v. Big Muddy Coal & Iron Company, Appellant.
    1. Mines and miners—failure of mine owner to comply with statute. Where the owner of a mine knowingly fails to comply with the provisions of the statute providing for the safety of miners, liability for an injury is established on showing that such failure was the proximate cause of the injury.
    2. Mines and miners—proximate cause. Where a mine owner fails to remedy a dangerous condition of a track as required by statute and it appears that as a result a car was derailed and as a consequence of which and the other conditions existing at the time in that locality, a collision occurred whereby the driver of a second car was injured, the question of proximate cause of the injury is for the jury, and their finding that the failure to comply with the duty imposed by statute was the proximate cause of the injury is supported by such evidence.
    3. Mines and miners—instructions. Where a mine owner permits a track to remain in a dangerous condition, in violation of a statute, and an injury results because of "a collision due to a derailed car, an instruction directing a verdict on proof of certain allegations is not erroneous, because it does not require it to be shown that the wilful violation of the statute caused the car to be off the track, where such instruction does however require that it be shown that such violation was the proximate cause of the injury.
    4. Mines and miners—instructions. Where an injury is charged in the declaration as due to certain unsafe conditions in a track, an instruction as to the unsafe conditions, existing at the place in question, is not erroneous as not confining them to the unsafe conditions mentioned in the declaration, where from the other instructions and the evidence it app.ears that “the place in question” was the place referred to in the declarations.
    5. Negligence—proximate cause. An instruction on the proximate cause of an injury need not require that it he shown that defendant should have foreseen that by his act the injury to the plaintiff might naturally follow, where it does require that it be shown that the act was one of the essential causes of the injury, and that without the same the injury would not have happened, that the injury must follow as an unbroken sequence from and on account of the act, and that the injury must have resulted from a combination of causes following in a natural and unbroken line from such act.
    6. Negligence—mines and miners. An instruction to the effect that if a certain derailed car was the proximate cause of an injury which could not have been foreseen by the defendant, as a result of his act there could be no recovery, is properly modified, so as to require that the derailed car must be found to be the sole and independent cause of the injury in order to find the defendant not guilty.
    7. Appeals and errors—harmless error. Reversible error cannot be assigned on the erroneous admission of evidence where the same does not materially affect the merits of the case.
    Appeal from the Circuit Court of Williamson county; the Hon. William W. Clemens, Judge, presiding. Heard'in this court at the March term, 1912.
    Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 5, 1912.
    Denisoh & Speller, for appellant; Master & Scherlock, of counsel.
    Hartwell & White, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee was severely and permanently injured while working in appellant’s mine and brings this suit to recover damages for the injuries so sustained.

The declaration, which consisted of five counts, charged that appellant operated a mine wherein appellee was employed; that on August 27, 1909, he was engaged in driving a mule in a certain entry in said mine; that the railroad tracks and frogs over a certain portion of this entry were uneven, out of line and in a dangerous and unsafe condition, by reason whereof cars driven over the same, were liable to be derailed and thrown from the track; that said entry was dangerous and unsafe for persons driving across and over said track; that appellant wilfully failed to have its mine inspected on said day and to cause a conspicuous mark to be placed at said place of danger; that appellant wilfully permitted appellee to enter the mine on said day to work therein, not under the direction of the mine manager, when the dangerous conditions had not been made safe, in violation of the statute; that defendant wilfully failed to cause all dangerous places above and below to be properly marked and wilfully failed to prevent appellee from entering said mine, not under the direction of the mine manager until all conditions had been made safe; that there was a wilful failure on the part of the mine manager to visit and examine the various working places for a long time prior to the injury, and to see that all dangerous places were properly marked, and a like failure to display danger signals wherever they were required; that there was a wilful failure on the part of appellant to cause said mine and said entry to be inspected on the day in question, by its mine examiner, and to make, through said mine examiner, a daily record of the conditions of the mine,. as he found it, in a book kept for that purpose.

There was a plea of the general issue, followed by a verdict and judgment in favor of appellee, for $2,000.00.

Appellant seeks a reversal of the judgment, alleging as grounds therefor that the evidence discloses the breaches of duty complained of did not constitute the proximate cause of appellee’s injuries; that there was reversible error committed in the rulings upon instructions, and that improper and incompetent evidence was admitted on the part of appellee.

Appellant, as shown by the proofs, was at the time in question operating a coal mine near Herrin, Illinois, in which appellee was employed. Sometimes he was engaged in working as a miner, in one of the rooms, mining coal and at other times he drove a mule attached to a car, hauling coal. From the bottom of the shaft, running west, was the main west entry and running south from the same, some distance from the shaft, was the first south entry, and a short distance further on, the second south entry off the main west entry; through all of which there were car tracks. In the second south entry was a parting of sidetrack 125 to 150 feet long. At each end of the parting was a frog connecting it with the main track. The parting was used for storing empty cars and it was the duty of the drivers to bring the loaded cars to the parting, leave them on the main track and return with empty ones from the sidetrack, an electric motor taking the loaded cars from thence to the shaft and returning them empty to the parting. In the vicinity of the parting there had been a squeeze sometime before the accident, whereby the bottom of the entry had been heaved up and for a distance of some 300 feet the tracks were uneven, out of shape and irregular; one track was higher than the other, the ends of the rails did not come together well, and the heel of the frog at the south end of the parting was from three to five inches higher than its point. On the morning of the day the injury occurred, Ira Meredith, a driver, was passing the place, driving a mule attached to a loaded car, when, by reason of the conditions above referred to, the hind wheel of his car left the track, thereby causing the car to be thrown around and partially across the track, at or a little north of the frog at the south end of the parting. Meredith left the car in this condition and started with his mule back down the entry, and as he went into the first south entry he found appellee with a loaded car, which had also left the track. Meredith helped him to get his car back and informed him he had left his own car off the track at the stub or parting. Appellee told Meredith to go get another car and he would put his car back on the track and for this purpose he put a “jack” on his car and started on towards the parting, riding on the front-end or bumper of his car. The second south entry inclined downward somewhat from its face to the parting and for some ten or fifteen feet before reaching the south end of the parting the decline was quite sharp. When the mule, which was pulling the car, reached the sharp decline it stepped to one side and the car which appellee was riding went suddenly against the other car and appellee, being caught between the two, suffered severe and permanent injuries, some of which were of a peculiarly distressing nature.

At the time of the trial, more than two years after he was injured, he was unable to walk and had to have an attendant.

A consideration of the evidence ' clearly leads directly to the conclusion that a dangerous condition existed in appellant’s mine, at the place in question, and that appellant, knowing the danger, had wholly failed to comply with the provisions of the. statute providing for the safety of miners, and set forth in the declaration. Under such conditions, it is only necessary, in order to fix liability upon the defendant, to determine whether or not such dangerous conditions constituted the proximate cause of appellee’s injuries. Appellant insists that the peremptory instructions offered by it should have been given and a verdict by virtue thereof, should have been rendered in its favor, for the reason that the injuries did not result naturally and reasonably from the failure of appellant to comply with the statute, but that they were brought about by the act of Meredith in leaving his car off the track at the place of danger without any light or other danger signals; that the act of Meredith intervened between the omission of statutory duty on the part of appellant and the injury to appellee, and that such act was itself the proximate cause of the injury.

Appellant relies upon the doctrine laid down in Seith v. Com. Elec. Co., 241 Ill. 252, that “If the negligence does nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent independent act of a third person, the two are not concurrent and the existence of the condition is not the proximate cause of the injury. Where the intervening cause is set in operation by the original negligence, such negligence is still the proximate cause, and where the circumstances are such that the injurious consequences might have been foreseen as likely to result from the first negligent act or omission, the act of the third person will not excuse the first wrongdoer. When the act of a third person intervenes which is not a consequence of the first wrongful act or omission and which could not have been foreseen by the exercise of reasonable diligence and without which the injurious consequence could not have happened, the first act or omission is not the proximate cause of the injury.”

Appellee, while insisting that the facts in this case show a right of recovery, under the above rule, also relies upon the rule as laid down in Waschow v. Kelly Coal Co., 245 Ill. 516, where it is said, “When an injury proceeds from two causes operating together, the party putting in motion one of them is liable the same as though it was the sole cause. The negligent act or omission must be one of the essential causes producing the injury but need not be the sole cause nor the last or nearest cause. ‘It is sufficient if it concurs with the other cause acting at the same time, which in combination with it canses the injury. ’ Furthermore, what is the proximate cause is ordinarily a question of fact, to be considered by the jury from all the attending circumstances.”

The briefs in this case on both sides are quite voluminous. Appellant quotes at length from numerous authorities to sustain his position and appellee, in like manner, quotes from a large number of authorities in support of his position. As a matter of fact, the authorities relied upon, a great majority of which are cases decided by the courts of appellate jurisdiction of this state, are not in the least conflicting, but are entirely harmonious. There is no substantial difference of opinion as to the rules for determining whether a negligent act or omission constituted the proximate cause of an injury, but the difficulty is to apply the law to the particular facts of the case. In this case defendant had allowed the dangerous condition to exist in its mine and had wilfully failed to do those things required by the statute for the protection of its employes. As one of the circumstances resulting from the negligent act of appellant, Meredith’s car was derailed and as a consequence of that derailment, and the other conditions existing at the.time in that locality, the collision between the cars occurred and appellee was injured.

Whether under the circumstances the wilful failure of appellant to comply with the statute was the proximate cause of appellee’s injuries .was evidently a question of fact for the jury, and the proofs indicate no reason why their decision of that question should be disturbed.

Sixteen instructions were given on the- part of appellee, and eighteen on the part of appellant as offered, while five more offered by appellant were given as modified by the court and four others refused. The first instruction given for appellees was very long, somewhat intricate and told the jury what it was necessary for appellee to prove by a preponderance of the evidence to entitle him to recover. Counsel for appellant complain of this instruction because, as they say, the physical thing that caused the injury was the fact, of the car being off the track, while the instruction directed a verdict on proof of certain allegations without requiring it to be shown that “the wilful violation charged caused the car to be off the track.” An examination of the instruction, however, shows that it required in set terms that the jury should find that “the wilful violation of the statute by the defendant company, if any, was the proximate cause of the plaintiff’s injury.” It was not necessary that the jury should be instructed that to entitle appellee to recover they should find' the existence of every one of the incidents which occurred in the course of the circumstances leading up to the injury, but it was sufficient that they should find that appellant wilfully violated the statute, and that such violation was the proximate cause of the injury, and the instruction was sufficiently broad to cover this requirement.

Appellee’s instruction No. 8 is said to be erroneous for the reason that it does not confine the dangerous and unsafe conditions, the existence of which were required to be found as a prerequisite to the right of recovery, to the dangerous and unsafe conditions charged in the declaration. It does however confine them to the dangerous conditions existing “at the place in question” and the place in question was plainly shown by all the instructions as well as the evidence in the case, to be the place referred to in the declaration, so that the jury could not have been misled as to the place or conditions which were the subject of the controversy.

Appellant further claims that appellee’s given instructions 3, 6, 12, 13 and 16 had one common error and were vitally wrong because each left out of consideration the essential proposition as to whether or not appellant should have foreseen that by its alleged wilful violation the injury to appellee might naturally follow. While these instructions did not directly contain the proposition claimed by appellant to be essential, yet they did state the rule to be that to entitle appellee to recover, it must be shown that the wilful act on the part of appellant was one of the essential causes of the appellee’s injury, and that without the same the injury would not have happened; that the injury must follow as an unbroken sequence from and on account of the wilful violation of the statute by appellant, and that the injury must have resulted from a combination of causes following in a natural .and unbroken line from such wilful violation.

In Heiting v. C. R. & P. Ry. Co., 252 Ill. 466, it is said: “It is not however essential to make a negligent act the proximate cause of an injury, that the particular injurious consequences and the precise manner of their infliction could reasonably have been foreseen. If the consequences follow in unbroken sequence from the wrong to the injury, without any intervening efficient cause, it is sufficient if at the time of the negligence the wrongdoer might by the exercise of ordinary care have foreseen that some injury might result from the negligence.” This statement of the law seems to us, under the circumstances shown to exist in this case, to dispose of appellant’s objection to the several instructions last named.

In appellant’s instructions, which were modified by the court, the jury were told that if they found that the leaving of the car in the entry by Meredith was the efficient or proximate cause of appellee’s injury, or if it was something extraordinary, which could not have reasonably been foreseen by appellant, then they should find it not guilty. These instructions were modified by the court so as to require them to find that this act of Meredith’s was the sole and independent cause of appellee’s injury before appellant would be entitled to a verdict of not guilty. In view of the law as above indicated, the modification made by the court was wholly proper and in accordance with the true rule of law.

The four instructions, which were offered by appellant and refused by the court, were either in conflict with the correct rules of law applicable to the case as above indicated, or were fully covered by instructions given for appellant. The instructions given on behalf of appellee were so unnecessarily numerous, and many of them so unreasonably lengthy and intricate, that it could not reasonably be expected they would be wholly free from inaccuracies, but while inaccuracies do appear in appellee’s instructions, yet they were not of sufficient importance to constitute material error and the instructions in the case, as a whole, appear to us to correctly inform the jury as to the rules of law governing the case.

Appellant further insists that the court erred, in admitting improper evidence on behalf of appellee over the objections of appellant. Some of this evidence, such as that which tended to show that appellee was guilty of no contributory negligence, was immaterial and might well have been excluded. But an examination of all the evidence complained of as having been wrongfully admitted shows that it was of no great importance and could not have materially affected the merits of the case.

The judgment of the court below will be affirmed.

Judgment affirmed.


text:
    Guy C. Meskimen, Appellee, v. Ambraw Gas Company, Appellant.
    1. Negligence—street obstruction left by gas company. In an action for injuries sustained, by being thrown out of a buggy, as a result of a T extending from a gas pipe and left bare as a result of street grading, catching a wheel, a verdict against defendant gas company, is justifiable where the evidence, although conflicting, tends to show that the company knew of the condition of such pipe and that although the plaintiff also knowing thereof, was driving at a rapid rate, he was driving in the track where others had driven.
    2. Damages—when not excessive for personal injuries. A judgment for $400 for personal injuries is not excessive, where it appears that plaintiff suffered severely from his injury, that his arm was in a sling, that he was kept from business for three or four weeks, that the injury might be a permanent one, that although two and one-half years had expired, he could not fully straighten his left arm, and that $35.00 had been expended for physicians’ services.
    Appeal from the Circuit Court of Lawrence county; the Hon. J. R. Creighton, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed June 5, 1912.
    McGaughey & Tohill, for appellant.
    Gee & Barnes, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This is a suit brought by appellee to recover damages for personal injuries received by him and alleged to have been caused by the negligence of appellant.

There was a verdict in favor of appellee for $750.00, a remittitur entered by him for $350.00 and a judgment for $400.00.

The only reasons presented by appellant for the reversal of this judgment are that appellee was shown by the evidence to have been guilty of contributory negligence, which would prevent a recovery and that the amount of the verdict is excessive.

Appellee, a veterinary surgeon, lived.on the south side of Locust street in Lawrenceville, Illinois. Appellant, a corporation, was engaged in supplying natural gas to consumers in said city for light and heating purposes and had one of its gas mains laid along the south side of Locust street. This street was thirty to forty feet wide with a sidewalk on each side and the gas pipe which was laid some ten or eleven feet from the center of the street, was at the time of the injury in what was then the traveled track. West of appellee ’s bam, some five hundred feet, was the barn of the DuPont Powder Company, and about half way between them was a T with a plug in it, extending out on the south side of the pipe, an inch and three quarters. This pipe had been laid in the ground in the fall or early winter of 1908, but sometime during the month of May, 1909, employes of the city, working the street with a grader, had cut down to it and left it bare. Appellant had been notified that the line was exposed at the point in question, but it was not shown what steps, if any, it took to relay or recover the pipe. It did appear, however, that at the time of the injury it was uncovered for from twenty-five to forty feet in the locality of the T above mentioned. At the T itself, the pipe extended 5y2 inches above the ground and it had been in this condition for several weeks.

On the morning of July 4, 1909, while appellee was engaged in driving his horse attached to a buggy, back and forth on said street, between his barn and that of the Du Pont Powder Company, and going at a somewhat rapid gait, the felloe of one of the hind wheels caught on the T, wrecking the wheel, breaking the shaft and injuring the horse and harness. At the same time appellee was thrown out of the buggy with such violence that his left arm and side were skinned and severely bruised and his shoulder blade seriously injured. Appellee suffered pain and a severe nervous shock, was lame for several weeks and expended $35.00 for physicians’ services.

Appellee testified that he did not know the T was liable to catch his wheel: that others had been driven in the same track and had not been caught.

On the other hand there was evidence on the part of appellant tending to show that appellee knew the T extending from the exposed pipe formed a dangerous obstacle to travel, and with such knowledge sought to drive by it at a very fast gait. The treasurer of appellant testified, that after the accident, appellee said to him, “I saw that thing sticking out there; I wondered if it would catch the wheel and sure enough it did.” Appellee’s explanation of this remark was, that at the time he referred to, he was so close to the T that he could not stop.

The jury were properly instructed, that appellee could not recover unless he established by a preponderance of the evidence, that at the time of the injury he was in the exercise of ordinary care and caution for his own safety, so it must be presumed that the subject was considered by them.' The evidence upon this matter was conflicting but the question was one for the jury. The instructions of the court properly defined the law applicable to it and the solution of the problem arrived at by the jury does not appear to us an unreasonable one.

In regard to the amount- of the judgment, it was shown by the proofs, that appellee suffered severely from his injury, that his arm was in a sling, and he was kept from his business three or four weeks; that there was some evidence tending to show the injury might be a permanent one; that at the time of the trial, some two and one-half years after the injury was received, appellee could not fully straighten his left arm.

When this evidence is considered together with the fact that he paid his physicians $35.00 for their services, our conclusion' is that the judgment of $400.00 entered in this cause is not excessive.

The judgment of the court below will be affirmed.

Judgment affirmed.


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    Charles Houchens, Administrator, Appellee, v. William Houchens et al., Appellants.
    1. Insane persons—conservator's report. The report of a conservator charging for personal services, filed after the death of his ward, made a part of his subsequent report as “conservator and administrator,” and approved by the court without notice to the heirs at law, is not a final adjudication of such claim, but is open to investigation on hearing of a petition to sell real estate for the payment of debts.
    2. Insane persons—compensation of conservator. A claim of a conservator, for personal services rendered his ward is improperly-allowed, where the evidence, though somewhat conflicting, shows with considerable clearness that the ward conveyed sixty acres of land to his daughter in consideration of her caring for and supporting him, that although the conservator did render such services he disclaimed any intention to charge therefor.
    Appeal from the County Court of Marion county; the Hon. Charles E. Jennings, Judge, presiding. Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed June 5, 1912.

      Charles H. Holt and W. G. Wilson, for appellants.
    D. D. Haynie, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee, as administrator of the estate of Charles Houchens, Sr., deceased, filed a petition in the County Court of Marion county, for the sale of real estate to pay debts. With the petition was filed an exhibit, verified by the petitioner, showing that the liabilities of the estate, including the sum of $100.00 for costs due and to accrue, exceeded the assets by $226.19. One of the defendants Maria Shanafelt, a daughter of the intestate and, sister of appellee, filed an answer, denying appellee’s right to a sale of the premises.

Upon the trial the County Court found in favor of appellee and ordered the premises to be sold, from which order Mrs. Shanafelt has appealed to this court.

On July 25, 1901, as shown by the proofs, appellee was appointed conservator of his father, Charles Houchens, Sr., then some 83 years of age, and took charge of the property of his ward. He filed reports from time to time in the County Court, in which, prior to the death of his ward, he took credit for ten dollars per annum for his fees as conservator. After the death of Charles Houchens, Sr., which occurred in November, 1908, appellee was appointed administrator of his estate and proceeded to settle the same.

On January 11, 1909, appellee as conservator, filed his report, showing a balance in his hands of receipts over credits, amounting to $440.65. In this report appellee took credit for a “conservator fee from May 31, 1907, to November 29, 1908’’ of $15, also credited himself with $262.50 for “taking constant care of Charles Houchens, Sr., from, April 29, 1908 to November 29,1908, day and night—210 days at $1.25 per day and night.” No notice was given to the heirs at law of the fifing of this report and the same was approved by the court without notice to them. Afterwards, on the 6th day of March, 1911, appellee as “conservator and administrator of the estate of Charles Houchens, Sr., deceased” filed a report from which it appeared that there was a balance “due the administrator "as deficit of $126.19.” On the same day and before the approval of the report, this petition for the sale of real estate was filed. In order to arrive at the deficiency above mentioned, it was necessary that appellee should have the credit of $262.50 for taking care of his father as above mentioned.

Appellant on the trial of this cause contested the allowance of that claim and contends here that the County Court erred in permitting the same to be charged against the estate. The report of the conservator made January 11, 1909, in which the conservator charges for his personal services in taking care of his father, having been filed after the death of the latter and approved without notice to the heirs at law, and being in effect made a part of the subsequent report of appellee as “conservator and administrator,” cannot in our opinion be treated as a final adjudication of appellee’s claim but must on the hearing of this petition to sell real estate be subjected to the same rules which would apply to the report of an administrator. It has long been a settled rule in this state that the allowance of a claim against an estate is only prima facie as against an heir at law and is open to investigation on the hearing of a petition for an order to sell real estate to pay the debts of the estate. Groeppner v. Leitzelmann, 98 Ill. 409; Stone v. Wood, 16 Ill. 177.

The only question, therefore, presented to us for consideration is, whether the court below erred in sustaining the claim of appellee for personal attention given to his father as a charge against the estate.

It appeared from the proofs that on April 6, 1893, the intestate Charles Houchens, Sr., and his wife Susanna, conveyed sixty acres of real estate to their daughter Mary Ellen Johnson, upon the consideration that she should support, board, clothe and care for them in a suitable manner during their natural lives. Mrs. Johnson was a witness on the trial and testified,' “I was willing to and did care for him and furnish all necessary nurse hire, board and clothing in accordance with the contract with him.” She further said that appellee did assist in caring for her father in his last illness; that she and her husband told him if he was going to make any charge for his services, they would pay it as they had contracted to support, maintain and care for him; that appellee said if we had to pay it he never would charge anything. In these statements she was corroborated by her husband.

Appellee was also a witness in his own behalf and permitted to testify over the objection of appellant. Waiving the question of the competency of appellee as a witness, there was nothing in his testimony which tended to show that he expected to charge for the services which he rendered his father.

In view of all these circumstances, we are of opinion there can be no presumption that appellee intended to charge and receive pay for his services to his father and that in the absence of express contract he cannot recover for them. Intestate’s mental condition was such that he could in fact have made no express contract for the services of appellee and the same is not claimed, and therefore the County Court erred in sustaining the claim of appellee for $262.50 for personal services.

The order of the court below will accordingly be reversed and the cause remanded.

Reversed and remanded.


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    C. B. Hudleson, Appellant, v. E. G. Hutson et al., Appellees.
    1. Justices op the peace—amendment of transcript. On forcible detainer by an execution purchaser, it is not error to refuse an amendment to the transcript of the justice to make it conform to the docket which shows the making of the oath required by statute, when execution issues prior to the expiration of twenty days after judgment, since the execution purchaser’s deed must rest on facts shown by the transcript when execution issued.
    2. Justices op the peace—execution. The clerk of the circuit court is authorized to issue execution on the filing of the justice’s transcript, and a sale thereunder is valid where the transcript contains copies of the summons, the execution and return, and a certified copy of the justice’s docket which show jurisdiction of the parties and subject-matter, since it is a fair inference from the transcript that the justice complied with the law and caused the proper oath to be made before issuing execution.
    3. Forcible entry and detainer—appeals and errors. On appeal in forcible detainer defendant cannot raise the question of want of demand for possession, where the record does not show that he raised the question in the trial court and no cross-errors are assigned.
    4. Mortgages—redemption. After redemption of premises by judgment creditor from foreclosure sale, c. 77 §§ 21, 22 apply, and if an amount not greater than the redemption money and interest is bid at the redemption • sale, no further redemption can be made though two months or more remain of the three months allowed a judgment, creditor to redeem, and if the redemption sale is for more than the redemption money, interest and costs, no redemption can be made after the expiration of sixty days, but redemptions may be made within that time though they are made after the expiration of fifteen months from the date of the original sale.
    Appeal from the Circuit Court of Franklin county; the Hon. William H. Green, Judge, presiding. Heard in this .court at the March term, 1912.
    Reversed and remanded.
    Opinion filed June 5, 1912.
    W. F. Dillon, for appellant.
    Mooneyham & Seeber, for appellees.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

The following facts disclosed by the record in this case are sufficient to show the essential matters involved in this appeal.

At the May term of the Circuit Court of Franklin county, Illinois, the First National Bank of Benton foreclosed a mortgage executed by appellees upon certain premises therein described, and on August 6,1910, following, the premises were sold by the Master in Chancery in pursuance of the decree entered in said cause and purchased by said bank. On November 14, 1908, W. F. Dillon and others joined with him, obtained a judgment before a justice of the peace of said county against E. G-. Hutson, who owned the premises, for the sum of $97.17 and costs. On November 18, 1908, an execution was issued in said case and delivered to a constable, who, on the following day, returned the same unsatisfied, for the reason, as stated by him, that the defendant had no personal property in said county out of which said judgment and costs or any part thereof could be made. Two days later, a transcript of the judgment was filed by the justice in the office of the clerk of the Circuit Court of said county. On August 8,1911, said premises were redeemed from the foreclosure sale by said judgment creditors and an execution was issued on the transcript. The sheriff of said county levied on the premises by virtue of said execution and on September 2, 1911, sold the same at public sale, C. B. Hudleson, the appellant here, becoming the purchaser. On November 3, 1911, the sheriff executed a deed to said premises to appellant, who ten days later, brought this suit in forcible detainer against appellees, who occupied the premises, to obtain possession thereof under his sheriff’s deed.

Upon the hearing of the case a jury was waived and the trial resulted in a' judgment in favor of appellees and against appellant for costs.

It appeared that the transcript of the proceedings before the justice of the peace, which was filed in the office of the circuit clerk and introduced in evidence on the trial of this cause, showed that execution was issued by the justice on the fourth day after the judgment was obtained before him but the transcript failed to show that the oath required by section 2, article 11 of the statute in reference to justices and constables, to authorize the justice to issue an execution prior to the expiration of twenty days from the date the judgment had been made. The docket of the justice, however, which was also in evidence, showed that the affidavit had, as a matter of fact, been filed. Appellant asked leave of court to cause the transcript of the justice to be amended so as to show the making of the oath required by law and to conform to the entries on the docket. The refusal of the court to allow this amendment to be made is assigned and argued by appellant as error. There was no error in this action of the court, as appellant was not deprived thereby of any rights which would have been of benefit to him on the trial, for the reason that the law appears to be well established in this state, that a deed issued under such circumstances must rest on facts shown by the transcript at the time the execution was issued.

In the case of Schmitt v. Weber, 239 Ill. 377, where this question was before the court, it is said in the opinion delivered by Mr. Justice Farmer, “We are of opinion that the authority of the clerk of the Circuit Court to issue executions upon the transcripts depended upon said transcripts reciting such facts as gave him such authority, and if they did not do so, the defects and irregularities could not be supplied after execution had been issued, real estate levied upon and sold, the time for redemption expired and a deed executed to the purchaser, ’ ’ and in support of that doctrine the cases of Wooters v. Joseph, 137 Ill. 113; and Hobson v. McCambridge, 130 Ill. 367, are cited.

It is further insisted by appellant that the court erred in rendering judgment in favor of appellees and against him for costs and the vital question is, whether the transcript of the justice’s docket, filed with the clerk of the Circuit Court, was sufficient to legally authorize the clerk to issue the execution thereon.

Section 2 of article 12 of the statute in reference to justices and constables provides that “every transcript desired to be used for the purposes aforesaid (that is to authorize a levy on real estate) shall be certified by the justice of the peace making the same, to be truly copied from the files and books of his office and shall contain a copy of the original and each subsequent summons or process, issued by the justice of the peace, the return of the officer or officers thereon, the judgment and the execution or executions issued thereon, with the return of the officer upon the same, and a copy of his docket in the case.”

The case of Subim v. Isador, 88 Ill. App. 96, was a suit in trespass for false arrest and imprisonment arising upon a judgment in tort, where an execution against the body was issued. It was the contention of appellant there that the justice of the peace had lost jurisdiction of the case because the transcript of the judgment showed the case was continued, but did not show that either party was present or asked for a continuance or that the case was continued for any legal cause provided by statute, the entry being merely “case called and continued,” etc. The court held that the omission was not fatal to the transcript and in the course of the opinion it is said, “The record of the proceedings before the justice including the summons and return as set forth in the plea, discloses that the justice had jurisdiction of the person of the defendant and of the subject matter of the suit and the intendment and presumption of law follows that he coírtinued the case for some legal cause in accordance with the statute.” To the same effect is the hold of the court in the case of Payne v. Taylor, 34 Ill. App. 491, where it was said by the court, speaking through Mr. Justice Phillips, in sustaining the sufficiency of a transcript of a justice of the peace, to show jurisdiction on the part of the justice that “technical accuracy in transcripts by justices of the peace, cannot be required.”

In the case of Outlaw v. Davis, 27 Ill. 467, the court had under consideration a statute in relation to justices of the peace, which provided that to entitle a plaintiff to a warrant against the defendant to hold him to bail, the plaintiff should make oath that there was danger his debt or claim would be lost unless the defendant was held to bail, and it was there claimed by one of the parties, that a capias had been issued without any affidavit being filed therefor; but the court said that an affidavit in writing was not required by the statute but simply an oath which the justice could administer and that the presumption must therefore obtain that the justice required all the necessary averments in the oath.

In the present case the transcript contains copies of the summons, the execution and return thereon, and what is certified by the justice to be a copy of his docket, and from these it can be seen he had jurisdiction of the parties and the subject matter of the suit. Under such circumstances, following the reasoning'of the authorities above referred to, we are of opinion it is a reasonable and fair inference from the transcript, that before issuing the execution the. justice complied with the law and caused the proper oath to be made. It follows that the clerk of the Circuit Court was authorized t.o issue execution upon the transcript filed with him and that the sale of the premises thereunder to appellant was a valid sale.

It is contended by appellees that the deed to appellant was void for the reason that it was issued three days .prior to the expiration of fifteen months from' the date of the sale. It is provided by sections 18 and 20 of chapter 77 of the Revised Statutes (Hurd 1909), that any defendant, his heirs, administrators, assigns or any person interested in the premises through of under the defendant, may within twelve months from the sale of the same, made by a sheriff or master in chancery, redeem the real estate so sold, and if such redemption is not so made, judgment creditors may redeem the same after the expiration of twelve months and within fifteen months after the sale. Section 21 of said Act provides that if no greater amount is bid at the redemption sale than the amount of the redemption money paid, with interest thereon from the date of the redemption, the premises shall be struck off to the person making the redemption, the officer shall forthwith execute a deed of the premises to the purchaser and no other redemption shall be allowed. Section 22 provides, that if the premises redeemed shall be sold for more than the amount of such redemption money, interest and costs, the excess shall be applied on the execution under which the redemption was made, and a deed of the premises sold, made to the new purchaser in sixty days from the date of such sale, unless, in the meantime, there is a further redemption of the same.

The theory of appellee is that if the sixty days come within the three months allowed to all judgment creditors to redeem after the expiration of twelve months from the original sale, that the deed cannot be made until the expiration of the full three months. With this contention we cannot agree. After redemption by a judgment creditor, sections 21 and 22 become operative, and if no greater amount than the redemption money and interest is bid at the redemption sale no further redemption can be made, even though two months or more may still remain of the three months allowed a judgment creditor to redeem, and it is equally true that if the sale is made for more than the amount of the redemption money, interest and costs, no further redemption can be made after the expiration of sixty days from the date of the last sale, although successive redemptions may be made from time to time within sixty days of the last sale at which they were sold for more than the amount of the redemption money, interest and costs, even though one or more of such redemptions should be made after the expiration of fifteen months from the date of the original sale. Such is plainly the law as laid down by the statute.

Appellee states as a further reason why the judgment in this case should be affirmed, that the demand for possession, required by the statute, is not shown by the evidence to have been given. The record contains what purports to be a demand for possession, which is in proper form, but is not included in that portion of the record devoted to the bill of exceptions.

It does not appear, however, from the record, that appellees raised the question of a want of demand for possession, in the court below, and no cross errors have been assigned by them, consequently they are not in position to raise the question on this appeal. The judgment of the trial court will, be reversed and the cause remanded.

Reversed and remanded.


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    The County of Jackson, Appellee, v. John M. Herbert, Appellant.
    1. Limitations—against municipal corporation. A plea of the statute of limitations cannot be successful against municipal corporations respecting public rights or property held for public use, or held in trust.
    2. Limitations—against county. The statute of limitations is not available as a defense on action by a county against one who received the money sought while acting as attorney and agent »f the county, no private rights or contractual relations existing, and where the money when received must be expended for public purposes.
    Appeal from the Circuit Court of Jackson county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed June 5, 1912.
    James H. Martin, for appellant.
    Isaac K. Levy, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This was a suit in assumpsit brought by Jackson County, appellee, against John M. Herbert, appellant, to recover $353.75, which was received by appellant while state’s attorney of said county.

The declaration consisted of the common counts and two special counts. The first special count alleged that appellant was state’s attorney of said county, from the first Monday in December, 1896, until the first Monday of December, 1900; that on August 1, 1898, appellant collected and received from the county of Union in this state, the sum of $353.75 that belonged to appellee; that said sum was owing appellee from said county of Union for costs, fees and other necessary charges, claims and expenses, which had theretofore been paid by appellee in the case of the State of Illinois v. John S. Jones, charged with the crime of murder, tried in the county of Jackson at the April term, 1896, of the Circuit Court, on a change of venue from said Union county; that the term of office of said appellant as state’s attorney had long since expired; that he had not paid over said moneys to appellee, but neglected and refused to do so. The second special count was similar to the first, but alleged further that the money was collected by appellant pursuant to a resolution of the board of supervisors of Jackson county, and was received by him in trust for appellee.

Appellant filed the general issue and as to the two special counts, also filed the plea of the statute of limitations which was demurred to by appellee. The trial court sustained the demurrer, appellant elected to abide by his plea of the statute of limitations, withdrew his other plea, and the court having’ heard the evidence, entered a judgment against him for $283.75 and costs.

The only question raised for our consideration on this appeal is, was the statute of limitations of defense properly available to appellant, more than five years having elasped between the time of the receipt of the money by him and the commencement of this suit.

The law seems well settled in this state that the statute of limitations cannot be successfully pleaded against municipal corporations as respects public rights or property held for public use or when the property is held in trust.

In the case of Logan County v. City of Lincoln, 81 Ill. 156, where the city sought to recover certain taxes collected by the county that according to law it should have paid to the city, the court held the statute of limitations would not apply and in its opinion stated, “As respects public rights or property held for a public use, upon trusts, municipal corporations are not within the operation of the statute of limitations, but in regard to contracts or mere private rights, the rule is different,” and further held that the funds involved were in the nature of trust funds and that the obligation created by the statute bore no analogy to a right springing out of a contract.

In School Directors v. School Directors, 105 Ill. 653, it was claimed the school treasurer paid certain taxes collected by him to the wrong district, and the court held the funds were trust funds while in the hands of the treasurer, but as between the contesting districts the statute would operate. This distinction is obvious as the school treasurer must have received the taxes for the benefit of the district while the district receiving them from the treasurer took them as its own, although it might not have been entitled to them.

In the case of County of Pike v. Cadwell, 78 Ill. App. 201, wherein the county sought to recover money that had come into Cadwell’s possession while county treasurer, the court in its opinion said, “the funds involved in this controversy are in the nature of trust funds held by the county to be disposed of according to law, hence the statute of limitations is not available as a defense to the action.”

In the present case appellant, acting as attorney and agent of the county, received the money here sought to be recovered. No private rights are involved nor is there any contractual relation between the parties in regard, to the money, and when it is received by the county it must be expended for public purposes.

We therefore conclude the money was held in trust by appellant for the use of the public and that the statute of limitations is not an available defense against its recovery.

The judgment of the court below will be affirmed.

Judgment affirmed.


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    Julia M. Miles, Appellee, v. Court of Honor, Appellant.
    1. Insurance—burden of proof of suicide. In an action by a proper beneficiary to recover on a life insurance policy, an instruction which does not require plaintiff to show that death was not the result of suicide, in making out a prima facie case, but places the burden of proof of suicide on the defendant, is proper.
    2. Appeals and errors—harmless error. Conflicting instructions do not constitute reversible error where the verdict shows that the jury followed the correct rule as laid down in one of the instructions.

      3. Evidence—depositions taken at coroner’s inquest. In an action on a life insurance policy, where the jury’s verdict at al coroner’s inquest as to the death of the insured is admitted in evidence, depositions of witnesses taken at such inquest are properly excluded unless they are offered merely for the purpose of contradiction.
    4. Insurance—definition of suicide. An instruction in an action on a life insurance policy that “suicide is the act of designedly destroying one’s own life by a person who has attained the years of discretion, and is of sound mind, is sound where the question of involuntary suicide is covered by other instructions.
    Appeal from the Circuit Court of Jackson county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed June 27, 1912.
    William B. Risse, R. J. McElvain and Otis F. Glenn, for appellant.
    A. L. Spiller and A. S. Caldwell, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This was an appeal from a judgment for $1,000.00 and interest, rendered in favor of appellee, as beneficiary in a certificate of membership, issued by appellant, Court of Honor, to her daughter Mabel L. Merritt, April 25, 1907. The application, which was made a part of the insurance contract and was set out in the declaration, contained the following provision, “I understand and agree that if I commit suicide, whether sane or insane, voluntary or involuntary, there shall be payable to the beneficiaries entitled thereto five (5) per cent of the face valne of the certificate for each year I shall have been continuously a member of the society, and after twenty (20) years of continuous membership, the certificate shall be payable in full.”

Appellant pleaded the general issue and also filed special pleas, setting up suicide of the insured and tender of five per cent of the face value of the policy, excessive use of liquors and narcotics on her part which forfeited the certificate of insurance under the application and that she had made a false answer to one of the questions in the application in regard to the use of narcotics.

Mahel Merritt, the insured, died on the morning of August 19, 1909. The proofs of death presented to appellant, contained the affidavit of appellee, the beneficiary, who swore that her daughter the insured, died from an “over dose of morphine” and the affidavits of two physicians and two officers of the lodge of which she was a member, who swore that she died from “morphine poison.” An inquest was held on her body on the day of her death, and the verdict of the coroner’s jury, which was also introduced in evidence on the trial of this cause, was that, “she came to her death by morphine poison taken by herself and by her own hand, on August 18, 1909, sometime between 6 and 9 p. m. of which she died at 12:18 a. m. August 19, 1909, as result of morphine poison.” The only evidence introduced on the trial of this cause, in addition to the proofs of death and coroner’s verdict above referred to, was the testimony of appellee, who stated, among other things, that she had heard that her daughter bought morphine on the afternoon before her death, but that she knew nothing about it; that if her daughter brought any morphine home with her from a trip she made down town, that afternoon, witness did not know anything about it. She also stated that while she signed the affidavit submitted by her in connection with the proofs of death, it was not read over to- her before she signed it. There was no proof tending to sustain any of appellant’s pleas except that which alleged the suicide of the insured.

All the instructions offered by both sides, appear to have been given and an examination of them shows that they were not at all harmonious. Instructions on the part of appellee, told the jury that if they found from a preponderance of the evidence the certificate in question was issued to said Mabel L. Merritt and that she had complied on her part with the requirements of the certificate and the constitution, rules and by-laws of appellant during her lifetime, that then proof of her death and a compliance on the part of appellee with the requirements of said Court of Honor as to such proofs, entitled appellee to recover, unless the jury found from a preponderance of the evidence that appellant had sustained one or more of the defenses set up in the several special pleas. On the other hand the jury were instructed on behalf of appellant, that before plaintiff was entitled to recover it must appear from the weight of the evidence that Mabel L. Merritt had complied with all the rules, laws and regulations and that she did not come to her death by the taking of morphine, “either voluntary or involuntary. ’ ’

In accordance with these instructions, it was insisted on the part of appellant, that the burden of proof was upon appellee in the first instance in making out her prima facie case, to show that the insured did not come to her death by the taking of morphine either voluntarily or involuntarily, while appellee insisted that this was not part of the prima facie case to be made out by her, but being a matter of defense set up by appellant in its special pleas, the burden of proving the same was upon appellant. We concur in the position taken by counsel for appellee, and in our opinion appellee’s instructions upon this question were correct. Continental Life Ins. Co. v. Rogers, 119 Ill. 474; Court of Honor v. Clark, 125 Ill. App. 490.

The fact that conflicting instructions upon this subject were given, cannot however avail appellant in this case, as the verdict of the jury shows they followed the correct rule which was laid down in appellee’s instructions.

Appellant also further complains that while the court admitted the verdict of the jury at the coroner’s inquest, it refused to admit the testimony of the witnesses taken at the inquest and made a part of the coroner’s report. The ruling of the court upon this question would seem to be correct upon the authority of Knights Templar’s Indem. Co. v. Crayton, 209 Ill. 550, where it was held that the verdict rendered at the coroner’s inquest was competent, but that the depositions being mere ex parte statements, would seem upon principle, to be incompetent for any purpose other than contradiction.

The depositions of the witnesses before the coroner were not offered in this case merely for the purposes of contradiction, and were therefore properly excluded.

Instruction No. 9 given for appellee, told the jury that “suicide is the act of designedly destroying one’s own life by a person who has attained the years of discretion, and is of sound mind.” Appellant claims that this instruction was erroneous for the reason that it ignored and failed to define involuntary suicide. The instruction correctly defined suicide, which was one of the defenses relied upon by appellant. The fact that it did not also make a distinction between voluntary and involuntary suicide, if indeed there is such a thing strictly speaking as involuntary suicide, did not constitute error or mislead the jury, as appellant’s instructions repeatedly defined involuntary suicide in terms most favorable to the defense. Two of appellant’s instructions went so far as to inform the jury that if they found the insured came to her death by the taking of morphine, then it made no difference whether she took the drug voluntarily with- the intention of killing herself or not, that it was sufficient to defeat a recovery if she took said drug and thereby killed herself involuntarily, except as to five per cent, of the face of the policy.

These instructions fully expressed appellant’s theory of the law and did so in a way more favorable to appellant than it was really entitled to have the same stated.

The jury upon a consideration of the facts and. the ■ instructions found the issues for appellee and the judgment of the court below, based on the verdict, should and will be aErmed.

.Judgment affirmed.


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    Edward O’Hare, Appellee, v. Commonwealth Steel Company, Appellant.
    Master and servant—assumption of risk. Where a switch-man reported the defective condition of the goose-neck and draw bar of an engine to the master mechanic, and continued work on a promise that the same would be repaired, he nevertheless assumed the risk of any attending dangers where it was shown that he did not make the report in apprehension of any danger to himself.
    Appeal from the City Court of Granite City; the Hon. J. M. Bandy, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed.
    Opinion filed October 7, 1912.
    Wise, Keefe & Wheeler, for appellant; R. B. Hendricks, of counsel.
    Thomas Stallings and Thomas F. Ferno, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This was a suit for personal injuries received by appellee while in the employ of appellant.

The declaration contained two counts, the first averred that on and prior to September 23, 1910, appellant was operating a steel foundry, and used a steam locomotive and certain small cars termed buggies for the-purpose of conveying iron, steel and other material over its premises; that the small buggy was coupled to the locomotive by means of a bar of iron, known as a goose-neck, which fitted on the draw bar of the locomotive, and was connected therewith by means of an iron pin; that on said date and prior thereto, appellee was employed as a switchman and it was his duty to couple and uncouple the said buggies and locomotive; that a few days prior to said date, while so employed, he noticed the goose-neck and draw bar were out of repair in this, that the goose-neck hung down to such an extent that it would be liable to cause injury to a person attempting to use it in making a coupling of said buggies to said engine; that appellee on said date reported the defective condition of said goose-neck and draw bar to the master mechanic of appellant and said master mechanic, then and there ordered appellee to continue his employment as switchman with said engine and buggies and said that he would have the defective condition repaired when said engine was turned in; that it was the custom of appellant to have its engines and cars turned into the machine shop on Saturday of each week, for overhauling and repairs; that relying upon the promise to repair as aforesaid, appellee continued in his employment, as switchman and on the date above mentioned, while in the performance of his duties and in the exercise of ordinary care and prudence for his own safety, his left hand was crushed and mangled, and he was otherwise permanently injured as he was in the act of coupling said car or buggy to said engine, by reason of the defective condition of said goose-neck and draw bar.

The second count was like the first, except that it states the notice of the defect was given by appellee to the yard master instead of the master mechanic and that the yard'master made the same promise in . regard to the repair of the same.

There was a plea of the general issue and the trial resulted in a verdict and judgment for appellee for $1800.00.

Appellee testified affirmatively to the facts alleged in the first count of the declaration and was corroborated by others as to the defective condition of the appliances mentioned and the injury received by him. Appellant offered no evidence whatever, but at the close of the evidence for appellee entered its motion to exclude the evidence and for an instruction to find the defendant not guilty, which was denied by the court.

Appellant on this appeal expressly waives all errors, except those that relate to the sufficiency of the evidence to sustain a verdict and judgment for appellee in this case, and ask that the judgment of the court below be reversed with a finding of facts and that the cause be not remanded.

The charge in the declaration was that appellee reported the defective condition of the goose-neck and draw bar to the proper officer of appellant, who ordered him to continue his work and he would have the defect repaired; and that he continued his work until he was injured, relying on said promise to repair.

The theory of the law presented and relied upon, by' appellant, is that before the promise of the master to repair defective appliances will relieve the servant from the assumption of risk, it must appear that the servant made complaint on account of some danger he apprehended to himself. Upon this subject the following questions were put to appellee and answers made by him:

“Q. At the time you saw this trouble there, did you make that complaint because you were afraid you would get hurt?
A. No, I made the complaint that it was out of order, there were dangerous curves in the yard and in switching, it might slip a knuckle on the buggies.
Q. Did you make the complaint because you realized that you might get hurt ?
A. I made the complaint because I thought a car might get away and run over some body and I would be held, responsible.
Q. You did not think then, that there was any danger to you?
A. I made the complaint merely that there was danger of slipping a knuckle.
Q. And hurt somebody else?
A. In switching and throwing the cars around, a car might get loose and run over somebody.
Q. Your complaint was not made with the idea that you might get hurt?
A. No.”

The proof, therefore, clearly established the fact the appellee did not apprehend any danger to himself from the defective condition of the goose-neck and draw bar.

In Althardt v. Con. Coal Co., 155 Ill. App. 364, this court said, “The purpose and legal effect of a promise by an employer to repair defective machinery, or to remedy or remove a dangerous condition or appliance, is to relieve the employe of the assumption of a risk that the law would otherwise cast upon the employe. In order, however, for the servant to relieve himself of the assumption of the risk by reason of such a promise it must appear not only that the master made such a promise, but that the promise was made and accepted with the view of removing a possible danger of injury to the employe by reason of the supposed defect. * * * The complaint of the employe to the employer in such case must be to the effect that the defect renders the work more dangerous, and accompanied with the statement, express or implied, that he cannot continue the work longer unless the danger is removed.”

Our Supreme Court, in the case of Morden Frog Works v. Fries, 228 Ill. 246, where a complaint of defective machinery and a promise to repair was under consideration, stated “Counsel are also right in the position that the complaint must be on account of some danger to himself, apprehended by the servant, but the evidence fairly tended to prove that the complaint of plaintiff was on account of an apprehension of danger to himself.” This court in reference to the same subject, held in Alton Roller Milling Co. v. Bender, 112 Ill. App. 484, that “in order to bring a case within that class, it must appear that the employe contemplated danger to himself from the defect, which he was no longer willing to incur and that he was induced to continue in the service, when he would not otherwise have done so, by the promise of his employer to remedy the defect. A request and promise with reference only to conditions effecting the work, where it does not appear that the parties had in mind either danger to, or the safety of the employe doing the work, will not suffice.”

The defects in the draw bar and goose-neck were easy to be seen and were known to appellee. When he continued his work with knowledge of the defects, he assumed the risk incident thereto, unless his report of the condition of the draw bar and goose-neck to the master mechanic and the instruction of the latter to him to continue working on until the engine was turned in, with a statement that he would then have his men make the repairs, were sufficient to relieve appellee from such assumption. But the report or complaint not having been made by appellee on account of any danger he feared to himself, from the defect in question, he, according to the rule of law stated in the above authorities, was not relieved from the assumption of the risk.

The judgment in this case must • therefore be reversed, and as the proofs in the case disclose no liability on the part of appellant the cause will not be remanded.

Reversed.

Statement of facts to be incorporated in the judgment: We find that the injuries of appellee were caused by a risk incident to his employment which he assumed.


text:
    George E. Quaite, Appellee, v. Swift & Company, Appellant.
    1. Master and servant—when servant does not assume risk. Conceding that generally a servant assumes the risks ordinarily incident to his employment and obvious and known dangers, yet the law does not imply that he has notice of dangers not obvious, or those arising solely out of extraordinary circumstances.
    2. Master and servant—right to assume that place and appliances are safe. In the absence of actual knowledge of danger a servant has a right to assume that the place and appliances furnished him are safe and suitable for the business engaged in.
    3. Master and servant—obligation on servant to inspect for defects. A servant is under no primary obligation to investigate for latent defects and to test the place and appliances and is not deemed to have notice or knowledge of defects ascertainable by inspection to discover danger.
    4. Master and servant—instructions. An instruction in an action for personal injuries does not exclude the defense of assumed risk, though it is not directly mentioned, where it submits to the jury the question whether or not the danger was known to the plaintiff or could have been discovered by him in the exercise of ordinary care.
    5. Instructions—when refusal of correct instruction not error. Refusal of a correct instruction is not error where the principle is fully covered by other instructions.
    6. Damages—excessive. Though a verdict for $2,750.00 is not entirely satisfactory it will not reverse where the plaintiff who was 38 years old and earning $2.50 a day was struck on the head by a falling weight, whereby he was confined for some time and his spine, side, and leg were so affected that he walked with a crutch and complete recovery would require a year.
    7. Master and servant—questions for the jury. In an action for personal injuries received when a weight fell on plaintiff’s head in a place where he was stationed by a foreman to pry the ends of a drawbridge loose, it is for the jury to say from the evidence, whether the danger was obvious or known to him, or whether it was an accident, or caused by the negligence of the foreman.
    8. Witnesses—cross-examination. In an action for personal injuries, by one injured by the falling of a weight from the gate of a drawbridge, it is no abuse of discretion to exclude cross-examination of defendant’s foreman by the defendant as to why he weighed one of the gates, though on direct examination he testified that he had weighed it.

      9. Evidence—when refusal to exclude not error. Where a rule is entered at plaintiff’s request excluding witnesses from the court room, it is not error to refuse to exclude the testimony of a witness for plaintiff who was in the room while other witnesses testified, where the facts testified to were few in number, fully covered by other testimony, and concerned matters not controverted.
    Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed October 7, 1912.
    C. E. Pope, for appellant.
    D. J. Sullivan, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

No evidence was introduced in this case by appellant, and there is no controversy as to the facts, which are in substance as follows:

Appellant owned and operated a packing plant in St. Clair county, Illinois, and among other buildings connected therewith, were two, known as the pork dock and hog house, in front of each of which was a platform about 4½ feet high, with a twenty-five foot roadway between them. Appellant desired to connect these two platforms by means of a double draw-bridge, so that when the bridges were down, trucks could pass over the roadway' on them at the same elevation as the platforms, and when it was raised teams and cars could go back and forth between the two buildings. Appellee, for about a week prior to July 31, 1911, had been engaged with his foreman, Meyers, and others, in making and erecting this draw-bridge, which was constructed in the following manner:

Two posts, ten inches square, were set in the middle of the roadway some eight feet apart. These were set in concrete six feet below the surface and were about sixteen feet high. A cap piece went across the tops of the posts to each end of which was attached a sheave wheel. Two steel shafts were attached by bearings to the opposite sides of the up-rights. These shafts were the axles on which the two sections of the draw-bridge were to run and were attached to the uprights on a level, with the platforms, so that when the sections were down, one end of each was held by the steel shaft and the other rested on the platform, and when raised the ends of the platforms extended towards the top of the uprights. Each section was a little over twelve feet long and six feet wide and was composed of oak timbers 3½ inches thick, and when the two were down they formed a continuous passageway from one platform to the other. As a means of raising these sections, cables were attached to the ends next to the platforms and then passed over the sheave wheels and down the sides, ending in iron rods, designed to hold weights to counterbalance the weight of the sections when being raised or lowered. The weights used thereon were large scale weights with a slot in one side, so that they slipped on and around the rod and were not intended to be used permanently on the structure, but were procured and used for the purpose of determining the amount necessary to counterbalance the weight of the gates, so that a permanent counterbalance could be made of the proper weight. On the date aforesaid, appellant’s foreman attempted, with appellee and other workmen, to test the draw-bridge, to see if it would work properly. One section was lowered and the other one started down, when it was found that the ends of the timbers of the one being lowered struck the ends of the timbers in the section already down, causing it to - stop. The foreman ordered appellee to get a pinch-bar and assist bim to pry the ends apart. While they were on the bridge, pulling on the bar, the foreman directed other men to pull the gate down, when the section suddenly came loose and descended with such force and so quickly as to jerk the cable up against the sheave wheel, and jar one of the weights, weighing 19½ pounds, off the rod. The falling weight struck appellee on the back of the head and neck, rendering him unconscious, so that he had to be taken to a hospital, where he remained four days, when he was removed to his home, where he was confined for sometime. He suffered great pain and his spine, right side and leg became affected so that he walked with a crutch at the time of the trial, some months later, and the evidence showed that his complete recovery would take a year or more.

Appellee at the time he was injured was 38 years of age, and could earn $2.50 a day.

The first count of the declaration charged appellant with negligence in ordering appellee to work in a dangerous place, which danger was known to appellant or should have been known to it, by the exercise of ordinary care, but was unknown to appellee and could not have been discovered by him by the exercise of ordinary care. The second count charged appellant with negligence in failing to use ordinary care to furnish appellee a reasonably safe place in which to work and to furnish him reasonably safe and suitable equipment on said draw-bridge, and in negligently and carelessly placing certain weights on the rod, at the end of the cable, which were not of sufficient weight to properly retard the descent of the gate, and in failing to use reasonable care to have said weights fastened to prevent their falling when suddenly jerked by an abrupt or rapid descent of the gate, due to the inefficiency of such counterweight.

There was a verdict followed by a judgment for appellee, for $2,750.00. Appellant has brought the case to this court for review, insisting that the verdict is not sustained by the evidence, that the court erred in its rulings in regard to the instructions and evidence and that the amount of the verdict was excessive.

In regard to the evidence and the insufficiency of the same, to support the verdict, the claim of appellant is that it shows a state of facts, under which appellee must be held to have assumed the risk and also that the injury was the result of an accident. While the employe, as a general rule, is held to have assumed the risks ordinarily incident to Ms employment, and also all obvious and known dangers, yet the law does not imply that he has notice of dangers or perils not obvious to the senses and arising solely out of extraordinary or exceptional circumstances. Pittsburg Bridge Co. v. Walker, 170 Ill. 550.

The employe also has a right, in the absence of actual knowledge of danger, on his part, to assume that the place and appliances furnished him, by Ms master, are safe and suitable for the business in which he is engaged. Whitney v. O’Rourke, 172 Ill. 177.

It is further the rule of law, that the servant is under no primary obligation, to investigate for latent defects, and test the fitness and safety of the place, fixtures and appliances, provided Mm by the master, and he is not deemed to have notice or knowledge of such defects and insufficiencies as can be ascertained by investigation and inspection, for the purpose of ascertaining there is no danger. Wrisley Co. v. Burke, 203 Ill. 250.

In this case, appellee was at the time he was injured told where to stand by his foreman, and was acting entirely under Ms direction. He is not charged with doing, nor does the evidence show that he did any act of negligence, contributing to cause Ms injury. It does not appear to us that the danger to which he was subjected, was either known to him, nor was it so open and obvious, that he should have known of it by the exercise of ordinary care. The evidence strongly tended to show that the fall of the weight, which injured appellee, was not the result of a mere accident, but was caused by lack of care and proper precaution on the part of appellee’s foreman, in charge of the work, but at any rate these questions were questions of fact for the jury and their verdict had no lack of evidence to support it.

Appellant complains of the second instruction given for appellee, because, while laying down correctly the rule of law governing appellee’s theory of his right of action, it neglects to mention appellant’s defense of assumed risk. While the instruction in question did not directly mention the question of assumed risk, yet it did submit to the jury the question whether or not the danger was known to appellee, or could have been discovered by him in the exercise of ordinary care. This instruction, therefore, does not exclude the defense of assumed risk, as a servant does not assume a peril of which he has no knowledge, and of which he cannot have knowledge by the exercise of ordinary care, and therefore, cannot be held to be erroneous, and especially is this so in view of the fact that appellant’s instructions covered the doctrine of assumed risk.

Appellee’s third instruction, which is criticised by appellant, undertakes to inform the jury as to what does and does not constitute an accident, in law, as applied to the facts in this case, and appears to us to state a correct rule.

Appellant’s fifteenth instruction related to the effect of knowledge of the danger on the part of appellee, upon his right of recovery and stated substantially a correct principle of law, but there was no error in refusing the same, for the reason that the same principle was stated and fully covered by other instructions given for appellant.

In regard to the evidence, appellant complains that while appellant’s foreman, Meyer, testified that he weighed one of the gates and the amount it weighed, yet he was not permitted, on cross-examination, to tell why he weighed it, and his statement that appellee was present at the time was excluded. The court did not abuse its discretion in its rulings in this regard, as the evidence sought to be elicited by appellant was not, strictly speaking, cross-examination, and could readily have been elicited by appellant by making the foreman its own witness. Objection was made by appellant, in the court below, to the admission of the testimony of the witness, McGee called for appellee, because, while, at the request of appellee a rule had been entered excluding all witnesses from the court room, yet it appeared that McGee had been in the court room while other witnesses for appellee had testified. The court might well have excluded the testimony of this witness, yet it was' not error to refuse to do so, as the facts to which he testified were few in number, fully covered by the testimony of the other witnesses, and concerned matters concerning which there was no controversy.

We think the most serious question raised by appellant is that which concerns the amount of the verdict. We have, however, considered this matter carefully, and while the amount allowed appellee is not wholly satisfactory to us, considering the extent of his injuries as shown by the proofs, yet we cannot say that the amount is so excessive as to demand a reversal of the judgment solely on that account. The judgment of the trial court will accordingly be affirmed.

Affirmed.