text:
    Minnie B. Henry et al. v. Trustees of Grand Lodge I. O. M. A.
    1. Benefit certificate—Burden of proof.—Where a benefit certifi■cate is made payable to a certain person, in its inception, the burden of proof is upon parties claiming an assignment of such certificate to them, to show a prima facie valid transfer of the benefit accruing from s dd certificate to themselves in pursuance of the constitution and by-laws of the order.
    2. Recoud.—As neither the certificate, the assignment nor the by-laws prescribing the form in which the assignment shall be made, nor the constitution of the order applicable thereto, although the same were given in evidence in the court below, have been copied into the record, this court must presume in. favor of the finding of the court below.
    Error to the Circuit Court of Fulton county; the Hon. S. P. Shore, Judge, presiding.
    Opinion filed July 3, 1884.
    Messrs. Whitney & Bautz, for plaintiffs in error.
    Mr. W. H. Barnes, for defendants in error.
   Per Curiam.

This suit originated in a bill of interpleader brought by the trustees of the Grand Lodge of Illinois Independent Order of Mutual Aid against Clara C. Henry, widow of John B. Henry, deceased, of the one part, and appellants, who are sisters of said John B. Henry, deceased, of the other part, to determine the ownership of a certain beneficiary certificate of membership issued by said trustees to said John B. Henry in his lifetime, and payable in ease of his death to the said Clara 0. Henry, his wife, which certificate appellants claim to have been duly assigned and transferred to them by the said John B. Henry, in his lifetime, in the manner provided for by the constitution and by-laws of said order. We have, in the record now before us, but one section of said constitution or by-laws of said order. That provides, in substance, that any member holding such certificate, desiring at any time to make a new direction as to its payment, may do po by authorizing such change in writing on the back of his certificate, in the form prescribed, attested by the secretary, with the seal of the lodge attached, and shall be forwarded to the Grand Secretary, who, on payment to the Grand Lodge of the sum of fifty cents shall make such change. Appellants allege that the assignment under which they claim, was executed in due form and in compliance with the constitution and by-laws of the order. This is denied by the widow, who also sets up that appellants could not, under the constitution and by-laws of the order, take an interest in said certificate by assignment. She also alleges that at the time of said alleged assignment, the said John B. Henry was mentally incompetent to make the same, and that it was procured by means of a conspiracy between appellants and one William Henry, their brother.

The certificate having been made payable to said Clara C. Henry, in its inception, the burden of proof is upon appellants to show a prima facie' valid transfer of the benefit accruing from said certificate to themselves, in pursuance of the constitution and by-laws of the order, and until this is done it is unnecessary for us to look into the evidence bearing upon the question of a want of mental capacity on the part of the deceased to make the trans’er.

But at the very threshold of the case we are confronted with the fact that neither the certificate, which lies at the foundation of the rights of all the parties claiming under it, nor the assignment of it, nor the by-laws prescribing the form in which the assignment shall be made, nor the constitution of the order applicable thereto, except as above recited, although the same were given in evidence in the court below, have been copied into this record. The court below found against the validity of the assignment, and we must presume in favor of that finding until it is shown, by the evidence then before the court, to have been erroneous.

The title of appellants to the fund in court depends upon their ability to show a'valid transfer of the certificate to them in pursuance of the constitution and by-laws of the order. In the absence of this documentary evidence, which the record shows to have been before the circuit court, we can not find that the judgment of that court in finding against the validity of that transfer was in any respect erroneous.

The decree of the circuit court will therefore be affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The People, etc., v. John D. Johnson et al.
    1. Failure to return execution—Breach op bond.—Unless the delay is occasioned by some act of the plaintiff in the execution, a failure to return it within the time fixed by law is a breach of official duty of the sheriff, for which an action will lie against his bondsmen. (4 Bradwell, 346.)
    2. Duty to levy and sell—Property subject to mortgage.— Where the defendant in the execution gave the deputy leave to levy upon certain property, and the deputy indorsed the levy but took no steps to take possession, and it was claimed that the property was subject to a chattel mortgage. Held, that so far as the record shows, it might have been seized and sold subject to the mortgage.
    Error to the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    Opinion filed July 3, 1884.
    Mr. E. L. Sweet, for plaintiff in error;
    that a conditional sale renders the property liable to execution against the vendee, cited Lucas v. Campbell, 88 Ill. 447; Murch v. Wright, 46 Ill. 487; Brandt v. Daniels, 45 Ill. 453; McCormick v. Hadden, 37 Ill. 370.
    . A refusal to return the writ within the time prescribed by law is a breach of the sheriff’s bond: People v. Johnson, 4 Bradwell, 346.
    Mr. Francis M. Wright, for defendants in error.
   Per Curiam.

This case was before this court on a former occasion and will be found reported iu 4 Bradwell, 346, where the principal tacts are stated. Ho attempt appears to have been made to levy the execution until the afternoon of the last day of its lifetime. The defendant in the execution then gave the deputy leave to levy the same upon two brown mules and two gray mares. The deputy indorsed the levy bnt took no steps to take possession of the property which was not then present. Mo satisfactory reason is given for his not doing so.

We held on the former occasion that the failure to return the execution within the time fixed by law was such a breach of official duty as to entitle the plaintiff to recover at least nominal damages. We see no reason to modify the conclusion at which we then arrived. The rule seems to be well established, that unless the delay is occasioned by some act of the plaintiff in the execution, a failure to return it within the time fixed by law is a breach of oificial duty for which an action will lie against the bondsmen. Freeman on Executions, Sec. 368.

The proof in this case shows that the defendant owned the two mules and the two gray mares. It is claimed that the mules were subject to a chattel mortgage, but so far as this record shows they might have been seized and sold subject to the same. Durfee v. Grinnell, 69 Ill. 371; Merritt v. Niles, 25 Ill. 282. It is now claimed that one Orton had possession of the mares under a pledge for certain moneys advanced by him to complete the purchase of them. It appears from the evidence that the mares were on the farm of the defendant in the execution; that he turned them out or attempted to do so, upon the execution, and that the deputy indorsed the levy. He does not afterward appear to have made any effort to get possession of them. Orton does not appear to have taken them away, and some time afterward the defendant in the execution paid off his claim. We do not think the property described in the levy has been sufficiently accounted for.

There were also some cattle on the place and some corn on the ground all of which belonged to the defendant in the execution. Mo claim was set up under the exemption law. We can not see why they were not levied on. Reed v. Johnson, 14 Ill. 257.

In fact, so far as this record shows, there was little if any attempt made to collect the money due the plaintiffs, in the execution, but the deputy in charge of it relied upon the fair promises of the debtor. For a similar neglect a surety has been discharged from the payment of a debt. Allison v. Waldham, 24 Ill. 132. If such consequences are likely to follow it is ot the greatest importance that officers of the law should be held to a strict performance of duty in the collection of executions. They can not be allowed to take upon themselves to say when they shall levy and when they shall not. If they would relieve themselves from the duty of making a levy upon property owned by and in possession of the defendant in the execution, they must be prepared to show a legal excuse for not doing so.

For these reasons the judgment of the circuit court will be reversed and the cause remanded.

Reversed and remanded.


author: Davis, J.

text:
    Peoria, Decatur & Evansville Ry. Co. v. Benjamin N. Berry, Adm'r, etc.
    Instruction—“ Sufficient warning-.”—An instruction “that it is the duty of railroad companies where engines and trains of cars are approaching public highways upon their roads, to give a sufficient warning of their approach, that a reasonably careful person, approaching their road upon such highways, using ordinary care, may be apprised of such approaching engine," is erroneous. The term “sufficient warning"might be understood by the jury to mean more than what the statute requires.
    Appeal from the Circuit Court of Coles county; the Hon. C. B. Smith, Judge, presiding.
    Opinion filed July 3, 1884.
    Messrs. Stevens, Lee & Horton, and Messrs. Wiley & Heal, for appellant;
    as to instructions, cited P. P. & J. R. R. Co. v. Siltman, 67 Ill. 72.

      Mr. Horace S. Clark, for appellee;
    as to instruction upon “sufficient warning” cited St. L., V. & T. H. R. R. Co. v. Dunn, 78 Ill. 197.
   Davis, J.

This was an action brought by appellee to recover damages for the death of Cora Berry, caused by the alleged negligence of appellant.

Cora Berry, who at the time of the accident ¡was about seven and a half years old, was traveling in a two-horse wagon toward a railroad crossing of the Peoria, Decatur & Evansville Bailway Company, over and upon Marion avenue, a highway in the city of Mattoon, accompanied by her mother and her brother-in-law, Edward Scott. Scott was driving the team and the party rode slowly along the southern part of the city and through Marion avenue, until the}' had reached within about nineteen feet of the railway track crossing the avenue, when a freight train on appellant’s road approaching the crossing at the usual rate of speed frightened the horses. Scott attempted to hold them, but in the effort the horses turned suddenly at the distance of nineteen feet from the track and cramped the wagon and threw the occupants out to the ground. In the fall Cora Berry broke her neck and died immediately.

The negligence charged upon appellant, and which, it is averred, caused the death of said Cora Berry, was the building and maintaining a tool house which was an obstruction, which obstructed the view of the railroad track from a portion of Marion avenue where it crossed said railroad; in driving a locomotive and train of cars along the railway past said tool house across the said highway at an unlawful and unusual rate of speed; and in failing to ring a bell or blow a whistle on the locomotive at a distance of eighty rods from the crossing and continuing such blowing or whistling until such crossing was reached as required by law.

Mo evidence was given on the trial below of the rate of speed at which appellant was permitted to run its trains through the city of Mattoon. The evidence which was given show's that the train at the time of the accident was not running at an unlawful or unusual rate of speed.

The evidence on the question of ringing a bell or blowing a whistle was conflicting, though we think it preponderated in favor of the claim of appellee, that no hell was rung or whistle blown as required by the statute. In the case of a conflict of testimony, the rule requires that the instructions given to the jury should be accurate. In this case the fourth instruction given for appellee was erroneous. It is “ The court instructs the jury that it is the duty of railroad companies when engines and trains of cars are approaching public highways upon their road, to give a sufficient warning of their approach that a reasonably careful person approaching their road upon such highways using ordinary care may be apprised of such approaching engine.”

A similar instruction was condemned in C. & A. R. R. Co. v. Robinson, 106 Ill. 142, on the ground that the warning the law requires the servants on the train to give, is to sound a whistle or ring a bell, and that “ due warning,” which was the term used in the Robinson case, might be understood yq the jury to mean more 'than what the. statute requires. “ Sufficient warning ” and “due warning” are open to the same objection. The judgment for appellee which was for $2,000, must therefore be reversed and the cause remanded.

Reversed and remanded.


text:
    Wabash, St. Louis & Pacific Ry. Co. v. Clinton L. Conkling, Adm’r, etc.
    1. Master AND servant.—Ail employe when he enters upon any service, assumes all the ordinary hazards aris.ng from the performance of the duties of his voluntary engagement.
    2. Hazards on ENrloVjíent.—Where a fireman employed hy appeh lant, was. while cleaning the ash pan of his locomotive, fatally injured through the negligence of appellant’s employes having charge of a work train) in not observing the rules of the road adopted by appellant to govern the running of trains and which were ample and sufficient to afford every protection to the deceased and the employes of the road, had they been strictly observed and obeyed. Held, that the negligence of the employes was one of the ordinary hazards arising from the performance of the duties of the voluntary engagement which the deceased entered into when he took service with appellant.
    Appeal from the Circuit Court of Pike county; the Hon. S. P. Shops, Judge, presiding.
    Opinion filed July 3, 1884.
    Mr. Geo. B. Burnett, for appellant;
    that when a'servant enters the service of another, he assumes all-the risks ordinarily incident to the business, cited Clark v. C. B. & Q. Ry. Co., 92 Ill. 43; C. B. & Q. R. R. Co. v. Clark, 2 Bradwell, 596; Wood on Master and Servant, § 326; C. & N. W. Ry. Co. v. Ward, 61 Ill. 131; Gunderson v. Peterson, 65 Ill. 193; I., B. & W. Ry. Co. v. Flanigan, 77 Ill. 365.
    Messrs. Ore & Crawford, and Mr. J. C. Sugg, for appelleé.
   Davis, J.

This was an action brought by the administrator of the estate of Felix L. Bogers, deceased, to recover damages for the death of said Bogers, caused by the alleged negligence of appellant.

It appears from the record that on the day of the accident which resulted in the deatlfof appellee’s intestate, Bogers was in the emploj’ment, and had been for some time previously, of the Wabash, St. Louis & Pacific Bailway Co. as a fireman, running between Hannibal and Springfield, and at the time he was killed was working in that capacity on an engine attached to a regular freight train. On May 6, 1883, while making his run from Hannibal to Springfield, his train stopped at Hew Salem, a station on appellant’s road, at which it had arrived a few minutes in advance of time, and was waiting until the time of the departure of the train eastward should arrive, which would be in about seven minutes. When the train stopped at Hew Salem, Bogers got down under the engine to clean his ash pan. It was his custom to clean it out whenever the train stopped, and it was his duty to clean it out whenever necessary.

While he was discharging this duty, a work train on the road of appellant, which was engaged every day in picking up bridge timbers along the road and distributing others where they expected to use them,- in utter violation and disregard of the rules of the road, came around a curve of the road, near the station, at a rapid, reckless rate, and ran at full speed, crushing into the train on which Rogers was under his engine cleaning out the ash pan. The collision of the two trains resulted in the immediate death of Rogers, and the collision was caused by the negligence of the employes of the work train in disobeying the rules of the road, which, if obeyed, would have prevented the accident.

At the time of the accident the rules governing the running of all trains over the road were printed on the time cards, and were distributed liberally to the employes of the road, to the train men, brakemen, engineers, firemen, station agents, bridge builders, and all others who had to be governed by the rules of the company. Rule Ro. 20 was in force on appellant’s road at the time of the accident, and a similar rule is generally in force on the leading railroads of the country, particularly the Chicago & Alton and Illinois Central. This rule is as follows: “ When one train follows another, it must keep, while running, at least two miles behind the preceding train, and must cautiously approach all stations, including those for fuel and water, expecting to find the leading train occupying the main track.”

It was shown in evidence that had this rule been observed it would have been impossible for the accident to have occurred, because the work train would have approached the station at Rew Salem with the train under perfect control, and seeing the freight train on the track would have stopped before coming inside the switches.

The following rule was also printed on the same time card, and was in force on appellant’s road at the time of the accident: “Conductors and engineers of freight trains, work trains and detached engines, must approach all stations slowly and with caution. They must know that the main track is clear and switches properly placed before passing through, and will in no case run at a higher rate of speed than six miles per hour while passing between the station switches.”

Tiie negligence of which appellee complains is, that appellant did not adopt proper and adequate rules and regulations for the running of trains on its road with safety to its employes and deceased, and negligence generally, and negligent conduct of its servants in charge of the work train.

The jury found a verdict for appellee of $550, and judgment against appellant for that amount ivas rendered, and an appeal taken to this court.

The evidence clearly establishes that the accident which resulted in the death of Rogers ivas caused by the negligence of the employes of appellant having charge of the work train, in not obeying the rules of the road, which had been adopted by appellant to govern the running of trains, and which were ample and sufficient to afford every protection to the deceased and the employes of the road, had thev been strictly observed and obejTed. But the negligence of the employes of the work train gives no right of action to appellee against the appellant. Their negligence ivas one of the ordinary hazards arising from the performance of the duties of the voluntary engagement which the deceased entered into when he took service with appellant as a fireman on one of the engines on its road. He knew when he commenced work, that as a fireman it would be bis duty to clean the ash pan of his locomotive whenever it became necessary. He knew that in discharging this part of his duty it would become necessary for him to get between the inside of the drive wheels in order to reach the ash pan under the furnace of the engine. He knew that when in this position he would be at the mercy of his fellow employes, and dependent on their faithfulness in observing and obeying the rules adopted to prevent trains from running into each other while at stations. He knew there was a work train on •the road every day picking np timbers, and that extra trains frequently followed regular trains, and he knew he was liable at any moment to serious injury or death from the negligence of his fellow employes.

The law has been established in this State by numerous decisions, that an employe, when he enters upon any service, assumes all the ordinary hazards arising from the performance of the duties of his voluntary engagement. Clark v. C. B. & Q. R. R. Co., 92 Ill. 44; C. B. & Q. R. R. Co. v. Clark, 2 Bradwell, 596.

The deceased was not injured by any cause outside of the ordinary perils of the service in which he was engaged. He was exposed to no new danger by any negligent conduct of appellant that he could not have anticipated before he entered upon the performance of his engagement.

The law, therefore, will afford no remedy to appellee, and the judgment of the court below must be reversed and cause remanded.

Judgment reversed.


text:
    City of Jerseyville v. Thomas A. Kingston.
    1. Want op ordinary care—Instruction.—An instruction in which the jury are told that “ slight negligence with want of ordinary care” will not defeat a recovery, is erroneous. In every case the want of ordinary care on the part of the injured party will preclude a recovery.
    2. Instruction—Assuming pacts.—An instruction which assumed that the sidewalk where the accident in question happened was in a defective condition was erroneous. The jury should be left free to determine whether certain facts exist without the court determining in advance that such facts do exist.
    Appeal from the Circuit Court of Jersey county; the Hon. G. W. Herdman, Judge, presiding.
    Opinion filed July 3, 1884.
    Mr. A. A. Goodrich and Messrs. Hamilton & Slaten, for appellant, as to instructions upon use of “ordinary care,”
    cited C. B. & Q. R. R. Co. v. Johnson, 103 Ill. 512; Village of Warren v. Wright, 3 Bradwell, 602; Baldwin v. Killian, 63 Ill. 650; C & A. R. R. Co. v. Murray, 62 Ill. 326; I. C. R. R. Co. v. Maffitt, 67 Ill. 431; C. B. & Q. R. R. Co. v. Payne, 49 Ill. 499; Quinn v. Donovan, 85 Ill. 194; Ill. Linen Co. v. Hough, 91 Ill. 63; Joliet v. Walker, 7 Bradwell, 267.
    Mr. G. E. Warrkn, Mr. James W. English, Mr. Wm. M. Jackson and Mr. Wm. H. Pogue, for appellee.
   Davis, J.

This suit was brought by appellee to recover damages for injuries he sustained by falling down a cellar-way, or entrance, leading from a sidewalk into the basement of a building situated on one of the principal streets of the city of Jerseyville.

In 1866 the building at which the accident occurred was erected, and in front was a sidewalk extending some forty feet. In the building was a basement, which since its erection has been occupied for business purposes. The entrance to this basement was by means of a stairway of seven or eight stone steps, about two feet wide, commencing at the sidewalk above, and descending along the side of the front of the building to the entrance of the basement door. The opening for the steps occupied three feet and nine inches, and took that much from the sidewalk, which was, including the opening for the stone steps, twelve feet wide. The opening for the stone steps descending to the basement, was surmounted by an iron railing on the outside which protected passers by from falling into the cellarway entrance from the side, and there remained of the sidewalk between the iron railing and the curbstone a space of seven feet for the unobstructed passage of pedestrians.

On the night of December 5,1882, appellee, in going from his office to his home, between ten and eleven o’clock, walking close to the building, on the inside of the sidewalk, fell or walked down the open cellarway or stone steps leading to the basement and was injured so that he was confined to his house about two months.

The negligence charged against the city was in permitting an open stairway without any guard at its opening or entrance to occupy more than one third of the sidewalk on the main and most traveled street in the city.

Appellant denies negligence on its part and insists that appellee at the time of the accident was intoxicated, and was guilty of want of ordinary care.

The jury found a verdict for appellee and assessed his damages at $650. A judgment was rendered against appellant for that amount and an appeal taken to this court.

Errors are assigned by appellant to many of the instructions given by the court below for appellee. We will notice some of them to which we think the errors are well assigned.

The thirteenth instruction reads as follows:

“The court instructs for the plaintiff that a traveler on a public street is held to the exercise of only ordinary care. Slight negligence with want of ordinary care will not defeat a recovery for an injury received in consequence of a defect in the sidewalk of a street, provided the evidence shows that the city authorities were guilty of negligence in permitting the defect to exist in the street, and that a traveler was injured and was using ordinary care to avoid the injury.”

By this instruction the jury are told that slight negligence with want of ordinary care will not defeat a recovery. This is not the law. In every case the want of ordinary care on the part of the injured party will preclude a recovery. C. B. & Q. R. R. Co. v. Johnson, Adm’r, 103 Ill. 513.

In the instructions given by the court generally, on this branch of the case, the court properly instructed the jury that if the plaintiff was guilty of negligence in not using ordinary care while passing along the sidewalk he could not recover. But the unfortunate use of the language “slight negligence with want of ordinary care ” in this instruction was so contradictory to the other utterances of the court, that the danger was that the jury might be confused or misled.

The sixteenth instruction was erroneous in assuming that the sidewalk where the accident happened was in a defective condition or was defective.

The jury should be left free to determine whether certain facts exist, without the court determining in advance that such facts do exist.

For these errors the judgment of the court must be reversed and the cause remanded.

Judgment reversed.


author: Davis, J,

text:
    Harry E. Holmes v. Ariel Nooe.
    1. Dram shop act—Damages.—In actions commenced "under the Divim Shop Act, exemplary damages are only properly given in cases where aggravating circumstances are shown, and are not awarded as punishment or as compensation over and above actual damages sustained, but operate as an example or a warning to deter the party or others from similar transactions.
    Appeal from the Circuit Court of Coles county; the Hon. C. B. Smith, Judge, presiding.
    Opinion filed July 3, 1884.
    Messrs. Craig & Craig, for appellant;
    as to exemplary damages, cited Kellerman v. Arnold, 71 Ill. 634.
    Mr. Horace S. Clark, for appellee.
   Davis, J,

This was a suit commenced by appellee under Cliapter 43 of the Devised Statutes, entitled “ Dram Shops,” to recover damages for alleged injuries to her property and her means of support, in consequence of the intoxication of her husband by the sale to him of intoxicating liquors by appellant which caused habitual intoxication.

The evidence did not very clearly prove habitual intoxication, nor by liquor procured by the husband from appellant,. nor that appellee was injured in her property or means of support, in consequence of intoxication caused by the sale of liquor to him by appellant, but it tended to prove such facts, and the jury had the right under it to find the issue for appellee, and to give her such actual damages as they believed the evidence showed she had sustained. But their finding should have been confined to actual damages. It is evident, however, from the amount of the verdict, which was for $754, and on which judgment was rendered in her faVor} that the jury allowed her exemplary damages.

This was not a ease which justified the jury in awarding exemplary damages. Such damages are only properly given in cases where aggravating circumstances are shown, and are not awarded as punishment, or as compensation, over and above actual damages sustained, but operate as an example or a warning to' deter the party or others from similar transactions. Kadgin v. Miller, 13 Bradwell, 474; Meidel v. Anthis, 76 Ill. 243; Kellerman v. Arnold, 71 Ill. 634.

In this case no aggravating circumstances whatever were shown.

It is an ordinary case where the injury to the little property possessed by the wife on her marriage, and to her means of support afterward derived from her husband, was apparently occasioned more by the indolence and indisposition of the husband to labor for the support of himself and wife than to the few instances of intoxication proved to have occurred after the marriage.

The court therefore erred in giving to the jury the following instructions for appellee. -x- * * u And that such wife is entitled to recover of such person so giving intoxicating liquor to the said husband as aforesaid, whatever actual damages she may have sustained by reason,thereof, and if the proof shows she has sustained actual damages, then she may also recover exemplary damages.”

“The court further instructs the jury, for the plaintiff, that they may give exemplary damages against the defendant in case the jury find from the evidence and the instructions of the court that the plaintiff is entitled to actual damages, such actual and exemplary damages not to exceed the amount claimed in the plaintiff’s declaration.”

The court also erred in refusing to give the' following instruction to the jury, as asked for by the defendant. “ The court further instructs the jury that, unless they find that the defendant acted wantonly and willfully in selling intoxicating liquor to the husband of the plaintiff, and the circumstances of the selling were not aggravating, then they should not find exemplary or vindictive damages against the defendant in this case.”

For these errors the judgment must be reversed and the cause remanded.

Judgment reversed.


author: IIigbee, P. J.

text:
    Samuel H. Black v. Fountain Bowman, use, etc.
    1. Alteration of note in material part.'—The fraudulent alteration of a note in a material part’ thereof, by the payee or holder, not only destroys the instrument, but it also extinguishes the debt for which it was given, and no recovery can be had upon either. But if the alteration, though material, be made without any fraudulent purpose, it is to be regarded as a mere spoliation of the instrument, and the holder may surrender it up and resort to the original indebtedness. The effect of the alteration depends upon its nature, the person by whom and the intention with which it was made.
    2. Evidence of fraudulent intention.—The law presumes that every sane man contemplates and intends the natural and probable consequences of his own acts, and when a note is knowingly and deliberately altered by the payee or holder so as to increase the liability of the maker, not only without his consent, but after such consent had been asked and refused, the natural tendency of the act would be to defraud the maker, and the only reasonable inference that can be drawn from such acts is that fraud was intended.
    Appeal from the Circuit Court of Vermilion county; the Hon. J. W. Wilkin, Judge, presiding.
    Opinion filed July 3, 1884.
    Mr. W. R. Lawrence and Mr. W. D. Lindsey, for appellant;
    as to instructions, cited Wheelock v. Freeman, 18 Pick. 168; Moshier v. Kitchell, 87 Ill. 22; Ferber v. Balenseifer,74 Ill. 183; Henderson v. Henderson, 88 Ill. 251; C. B. & Q. R. R. Co. v. Hale, 2 Bradwell, 159; 2 Parsons on Rotes and Bills, 583.
    Messrs. Mann, Calhoun & Frazier, for appellee;
    that if the alteration is material but not fraudulently done, a recovery may be had on the original consideration, cited Elliot v. Blair, 47 Ill. 342; 2 Parsons on Rotes and Bills, 571.
   IIigbee, P. J.

Bowman declared against Black in assumpsit on a promissory note, adding the common counts. Black denied the execution of the note by his plea verified by affidavit. On the trial, Bowman was permitted to surrender up the note to Black and recover upon the original consideration for which it was given.

At the instance of plaintiff below the court gave to the jury the following instructions:

1st. The court instructs the jury for the plaintiff, that if they believe from the evidence that the payee of the note in question altered .the same in a material part, but that such alteration was not fraudulently done, then the plaintiff is entitled to recover upon the original consideration for which the note was given.

2d. The court further instructs the jury for the plaintiff, that in passing on the question as to whether the alteration in the note was fraudulently made, they have a right to take into consideration all the facts and circumstances surrounding the alteration as the same appeared from the testimony ; and refused to give the following instruction in behalf of the defendant:

The court instructs the jury that if they believe from the evidence that Bowman, the plaintiff, materially altered the note in question, without the consent of the maker of the note, and without reason to believe such consent was had, then the jury should consider that such alteration was done with a fraudulent purpose.

The fraudulent alteration of a note in a material part •thereof by the payee or holder, not only destroys the instrument, but it also extinguishes the debt for which it was given, and no recovery can be had upon either. It is necessary that the forfeiture of the debt should be imposed upon the person who fraudulently tampers with the instrument which evidences or secures it, and it is done upon the well known principle that “no man shall be permitted to take the chances of gain by the commission of a fraud without running the risk of loss in the case of detection.”

On the other hand, we may concede that if the alteration, though material, be made without any fraudulent purpose, it is to be regarded as a mere spoliation of the instrument, and the holder may surrender it up and resort to the original indebtedness. 2 Daniell on Negotiable Instruments, p. 382.

The effect of the alteration depends upon its nature, the person by whom and the intention wdth which it was made. Vogle v. Ripper, 34 Ill. 100.

The note in controversy was directly between the parties to the suit. It bore date on the 23d day of December, 1882, was payable on the first day of June following, and was to draw interest at the rate of eight per cent., per annum from maturity until paid.

Bowman himself testified that he read the note when it -was signed by Black and handed to him; thought it ought to bear interest from date, but noticed before he left that it did not; some two weeks after he got the note be went to Black and asked him to change the note and make it bear interest from date, and inferred from what he said that he did not care whether it drew interest from date or not. On cross-examination, appellee says he will not say that Black said he could change the note, and does not remember that anything was said about the note drawing interest from date at the time the same was given. It was given for corn purchased of him by Black. Subsequently to the time he applied to Black to change the note, he altered it himself by scratching out the ■word maturity, thereby making it draw interest from date. Black testified that there was nothing said when the note was given about its drawing interest from date, and that when Bowman called on him afterward and asked him to change the note, he refused to do so, and told Bowman that he had not agreed to do so, and would not make any such change.

The question as to the proper inference to be drawn from the production by the payee of an instrument bearing an alteration on its face, is not here presented. It is admitted that this note was not only altered while in the possession of the payee, but that he made the alteration himself. He does not pretend that it was altered in conformity with any agreement made before the note was executed, nor by any subsequent authority conferred upon him by Black. The alteration increased the liability of the maker of the note, and was therefore material.

The law presumes that every sane man contemplates and intends the natural and probable consequences of his own acts, and when a note is knowingly and deliberately altered by the payee or holder so as to increase the liability of the maker, not only without his consent but after such consent had been asked and refused or withheld, the natural tendency of the act Avonld be to defraud the maker, and the only reasonable inference that can be drawn from such acts is that fraud was intended.

The instructions given for the plaintiff below were not based upon the evidence. They authorized an inference which was not supported by the proof. Had there been evidence before the jury tending to show that the alteration Avas innocently made, by accident, mistake or otherwise, the instructions would have been justified; but instructions not based upon the evidence usually mislead the jury, and ought never to be given.

We are also of the opinion that the instruction refused on the part of defendant correctly stated the law, and that it should have been given.

For these reasons the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Higbee, P. J.

text:
    William H. Sconce v. David A. F. Sconce.

      1. WheBE ACCOUNTS ABE COMPLICATED, EEFEBENCE TO MASTEB.— Where, as in this case, the accounts consist of many items covering a great length of time, it is error in the court to proceed to a final hearing until an account has been stated by the master, and exceptions thereto, if any, have been heard and settled by him.

      2. Tenants in common.—As between co-tenants, where there is no disseizin, it is error to charge a co-tenant not only with what he received or realized, but for what he could have realized by prudent management of .the property.
    3. Co-tenants, when liable eor rent.—To render one tenant in common liable to anoiher for rent, or for use and occupation, there must be something more than an occupancy of the estate by one, and forbearance to occupy by the other.
    4. Co-tenants—Occupation and cultivation op vacant and unoccupied lands.—Where one tenant in common enters upon vacant and unoccupied lands, and by his own labor and money reduces the same to cultivation, and without renting or ever having received rent therefor, occupies and cultivates the same without objection, if liable at all, it is only for a share of the actual profits made from the use of the premises after deducting taxes paid, the costs of improvements, and all other expenses.
    Appeal from the Circuit Court of Vermilion county; the Hon. J. W. Wilkin, Judge, presiding.
    Opinion filed July 3, 1884.
    Mr. W. R. Lawrence, for appellant;
    that appellant is not liable for rent, cited Chapin v. Foss, 75 Ill. 280; Sargent v. Parsons, 12 Mass. 149; Calhoun v. Curtis, 4 Met. 413; 1 Washburn on Real Property (3d Ed.), 570; Dixon v. Niccolls, 39 Ill. 372; Crosby v. Loop, 13 Ill. 625; Coke’s Littleton, 317a; Gilbert on Rents, 173.
    Messrs. Mann, Calhoun & Frazier, for appellees;
    cited Chambers v. Jones, 72 Ill. 275; Mahoney v. Mahoney, 65 Ill. 406; Roberts v. Beckwith, 79 Ill. 246.
   Higbee, P. J.

On a bill filed for partition of lands between tenants in common, it became necessary on the hearing to state an account of the rents, issues and profits received by one of the parties from the exclusive use of the premises for twenty-six years, and to ascertain and deduct therefrom taxes paid and the value of improvements made during his occupancy. The trial court found, that after deducting the amount of taxes paid by appellant and the value of the improvements made by him, he had received the sum of $2,222.98 more than his just proportion on account of rents and profits. The evidence upon which this finding was based is contained in the record, but we are wholly unable to see from it how the court reached its conclusions. The case was not referred to the master nor was any account stated by the court from which we can see what items were allowed and what rejected. Where, as in this case, the accounts con'sist of many items covering a great length of time, it is error in the court to proceed to a final hearing until an account has been stated by the master, and exceptions thereto, if any, have been heard and settled by him. Brockman v. Aulger, 12 Ill. 277; Sallee v. Morgan, 67 Ill. 376; Danforth v. McIntyre, 11 Bradwell, 417.

While we are unable to discover from the record just what rule was adopted by the court in reaching its conclusions, it seems probable that appellant was charged not only with what he received or realized, but for what he could have realized by prudent management of the property. This may be the correct rule in cases of wrong-doers, but as between tenants in common when there is no disseizin it is not. In tenancies of this character, each has an equal right to the possession of every part and parcel of the subject-matter of the tenancy, and one tenant, whether in possession or not, owes no duty to his co-tenant which requires him to improve, cultivate or rent the premises. The utmost that can be said is, that when he does receive rents or profits arising from use and occupation, he is required to account for them. To render one tenant in common liable to another for rent or for use and occupation, there must be something more than an occupancy of the estate by one, and forbearance to occupy by the other. Chapin et al. v. Foss, 75 Ill. 280. Neither can make improvements on vacant land at the expense of the other without his consent. But when one tenant in common does enter upon vacant and unoccupied lands, and by his own labor and money reduces the same to cultivation, and without renting or ever having received rent therefor, he occupies and cultivates the same without objection, if liable at all, it is only for a share of the actual profits inade from the use of the premises after deducting taxes paid, the costs of improvements, and all other expenses. And in this case, unless at the time the bill was filed there was a balanee due appellees which appellant had realized from the use of the joint property, after deducting all just charges, they were entitled to no decree, and this can only be ascertained when a propér account shall have been stated between them.

Freeman on Co-Tenancy, § 277.

Decree reversed and cause remanded.


author: Higbbe, P. J.

text:
    Wabash, St. Louis & Pacific Ry. Co. v. George W. Neikirk.
    1. Warning at public crossing.—Where appellee’s horses were killed while on the right of way of a railroad company at the farm crossing of appellee, and the latter claimed that if the employes of the railroad had rung the bell, or blown the whistle, on approaching a public crossing about a third of a mile distant from the place of accident, his attention would have been attracted to the approaching train, and the accident thereby avoided. Held, that the statute requiring such warnings on approaching a highway crossing was designed for the protection of persons crossing the track on the highway, and not for the safety of those crossing at a distance therefrom over,private crossings, constructed by the railroad for their convenience.
    2. Bate of speed.—-In this State there is no general law imposing any restraint as to the rate of speed a railroad company may run its trains, and when not prohibited by municipal regulation, it may adopt such rate as it shall deem advisable, provided the same is reasonably safe, and the company will not be subject to any liability for the rate adopted, if it is not otherwise at fault.
    3. Duty of person approaching railroad track.—It is the duty of a person about to cross a railroad track to look and listen for approaching trains, and the neglect of that duty is such gross negligence as precludes all right of recovery in case of collision.
    Appeal from the Circuit Court of Mason county; the Hon. C. Epler, Judge, presiding.
    Opinion filed July 3, 1884.
    Mr. W. H. Campbell, for appellant;
    cited C. B. & Q. R. R. Co. v. Lee, 68 Ill. 565; W. St. L. & P. Ry. Co. v. Neikirk, 13 Bradwell, 387; C. & A. R. R. Co. v. Robinson, 9 Bradwell, 89; C. B. & Q. R. R. Co. v. Harwood, 80 Ill. 88.

      As to duty of person crossing railroad track: C. B. & Q. R. R. Co. v. Van Patten, 64 Ill. 514; St. L. A. & T. H. R. R. Co. v. Manly, 58 Ill. 300; C. & R. I. R. R. Co. v. McKean, 40 Ill. 218; C. B. & Q. R. R. Co. v. Damerell, 81 Ill. 450; Magrath v. N. Y. C. & H. R. R. Co., 59 N. Y. 468; Penn. R. R. Co. v. Beall, 73 Penn. 504.
    Messrs. Conwell & Jackson, for appellee;
    that an omission to ring the bell or blow the whistle as required by statute is prima faoie negligence, cited I. C. R. R. Co. v. Gillis, 68 Ill. 317; T. H. & I. R. R. Co. v. Jones, 11 Bradwell, 322; I. & St. L. R. R. Co. v. Blackman, 63 Ill. 120; C. & A. R. R. Co. v. McDaniels, 63 Ill. 122; C. B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510.
   Higbbe, P. J.

This case was before us at the May term, 1883, when a judgment in favor of appellee was reversed and the cause remanded. (13 Brad well, 387). On a second trial a judgment was rendered against appellant from which it again appeals to this court.

The suit was brought to recover damages for killing stock and injuring harness by appellant’s locomotives and cars while being operated on its road. ' The alleged ground of recovery as to all the property, except three horses .and the harness, was that appellant’s road had been open for use more than six months prior to the injuries complained of, and that it had failed to erect and keep in repair fences, etc., in consequence whereof certain cattle and hogs of appellee got upon the track and Were killed by appellant’s locomotive and cars. There was no dispute that the cattle and hogs strayed upon the track of the road for want of a sufficient fence to keep them off and were killed as alleged; but appellant attempted to relieve itself from its statutory duty to fence, by showing that appellee had agreed to erect said fences and keep them in repair. The evidence failed to sustain this defense. The mere fact that appellee planted a hedge and built a part of the fence as a laborer for appellant, or in some other way Hot explained, does not justify the inference that appellee was responsible for the bad condition of the fence. The law has imposed upon the railroad company the duty of erecting and maintaining fences on the line of its road, and to shift this duty upon the owner of the adjacent land whose stock has been injured for want of sufficient fence, the burden of proof is upon the company to show the terms of the contract under which such duty is assumed. No such evidence is to be found in the record and the jury were justified in charging the responsibility for the loss of this stock upon the company.

As to the three horses killed and the harness injured upon the private crossing, a recovery was sought upon the grounds that appellant’s servants did not ring a bell or blow a whistle, and that the train was running at an unusual and dangerous rate of speed.

Appellee lived on the south side of, and near to the track of the railroad, which ran nearly northeast and southwest, where he had a farm crossing over the track almost directly in front of his house; and between his house and the railroad there was a fence with a gate just opposite the crossing and about twenty-five feet therefrom, opening toward the track of the road. Appellee had been plowing on the right of way of the company with his three horses and was preparing to move a log that was opposite to his crossing on the north side of the railroad and lying in the highway, when his wife called him to supper. There was no gate between the highway and the railroad track; appellee took hold of the lines and drove his horses toward the crossing to within about eight or ten feet of the track of the railroad, then stopped them, and left them in charge of his boy, twelve years old, and went across to the south side, some twenty-five or twenty-eight feet from the track, to the gate, for the purpose of opening it. In his evidence, appellee himself gave the following account of the accident: “As I crossed the railroad I looked up it; can’t say I looked down, to the best of my recollection. If I had looked down, I would have seen the locomotive approaching: for two miles.” On direct examination he swore “ I could have seen it for two miles where I crossed the track; did not look down while on the track; my attention was first attracted when all of a sudden it was right onto me. The horses lifted up their ears; that was the first I .noticed; the horses were frightened; that was the indication; they saw the engine before I did; the two outside horses attempted to run across the track; the other was holding them back, and I called to my boy to turn around; they ran on or backed onto the track; can’t say they got on through fright; throwing up their heads in fright was the first indication I saw; they were standing on the track; they got onto the track; they wanted to get into the yard; the boy was not able to control them; while on the track they were struck by the locomotive and killed, and the harness injured.”

When this case was before us at the May term, 1883, supra, we said: “ Here the horses were killed while on the right of way of the company, at the farm crossing of appellee. At such a crossing .a railroad company is not required by our statute to ring a bell or blow a whistle. It is only where a railroad crosses or intersects any public highway that such a duty is imposed by the statute.”

Appellee insists that if the employes of' the railroad had rung the bell or blown the whistle on approaching a public highway crossing about a third of a mile west of the place of the accident, his attention would have been attracted to the approaching train, and the accident thereby avoided. The statute requiring the ringing of the bell or the blowing of the whistle on approaching a highway crossing was designed for the protection of persons crossing the track on the highway, and not for the safety of those crossing at a distance therefrom, over private crossings constructed by the railroad ior their convenience.

It is also contended by appellee that the servants of appellant in charge of the locomotive that struck and killed the horses and injured the harness, were guilty of gross negligence in running the same at a high and dangerous rate of speed at the time of the accident. In this State there is no general law imposing any restraint as to the rate of speed a railroad company may run its trains, and when not prohibited by municipal regulation, it may adopt such rate as it shall deem advisable, provided the same is reasonably safe, and the company will not be subject to any liability for the rate adopted if it is not otherwise at fault. C. & A. R. R. Co. v. Robinson, 9 Bradwell, 89; C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576.

It is said that if the train had been running at a less rate of speed, it could have been stopped in time to have avoided the accident. On seeing the team near the track, in the possession and apparently under the control of the person in charge of it, the engine-driver would naturally suppose that the person in charge would keep it off from the track and out of danger until the train passed, and it was not his duty to have stopped his train to avoid a collision which he had no reason to suppose would occur. C. B. & Q. R. R. Co. v. Damerell, 81 Ill. 450, and authorities there cited.

But even if the servants of appellant were guilty of some degree of negligence, it was not wanton or willful, and was slight compared with the negligence of appellant. When he attempted to cross he knew he was approaching a place of danger, and it was his duty before attempting to cross, or driving so near as to endanger his team, to have looked in both directions. Had he done so, instead of relying upon hearing a bell or whistle at a distant crossing, he would have discovered a train rapidly approaching in time to have avoided the accident. That he failed to take this precaution for the safety of his property was his own fault, and he can not charge his loss upon others. If he was not in the exercise of ordinary care and diligence for the protection of his property when the same was injured, the law affords him no remedy.

The settled doctrine of the courts of this State, supported by a long line of unbroken authorities, is that it is the duty of a person about to cross a railroad track to look and listen for approaching trains, and the neglect of that duty is such gross negligence as precludes all right of recovery in case of collision. C. & R. I. R. R. Co. v. Still, 19 Ill. 499; G. & C. U. R. R. Co. v. Dill, 22 Id. 265; C. & A. R. R. Co. v. Gretztier, 46 Id. 83; T. P. & W. Ry. Co. v. Riley, 47 Id. 515; St. L. A. & T. H. Ry. Co. v. Manly, 68 Id. 300; C. & A. R. R. Co. v. Jacobs, 63 Id. 179; C. B. & Q. R. R. Co. v. Lee, 68 Id. 576; T. W. & W. Ry. Co. v. Jones, 76 Id. 312; C. R. I. & P. R. R. Co. v. Bell, 70 Id. 102; C. B. & Q. R. R. Co. v. Van Patten, 64 Id. 516; C. B. & Q. R. R. Co. v. Damerell, 81 Ill. 455; W. St. L. & P. Ry. Co. v. Hicks, 13 Bradwell, 407.

From appellee’s own showing the verdict of the jury as to the horses and harness was not authorized, and the court erred in not setting it aside and granting a new trial.

Judgment reversed and cause remanded.


text:
    Wabash, St. Louis & Pacific Ry. Co. v. Noah Pratt.
    1. Pleading.—Where a suit in case was brought against appellant by appellee for failing to furnish water to a car load of hogs shipped by appellee, and appellant pleaded the general issue, and two special pleas setting up a written contract under which the stock was shipped, and averring breaches of the terms thereof. Held, that appellant was not injured by the* court below sustaining a demurrer to one of the special pleas, as the same' matter of defense could be given in evidence under the general issue.
    2. Contract—Duty of railroad to furnish water.—Where there' is a written contract of shipment in which the shipper agrees that he will accompany the stock and feed and water at his own risk, it is the duty of the railroad to provide water to the shipper at suitable points on the line-of' its road for the use of the stock.
    3. Notice.—When the notice is not of that character that the mere mailing of it is sufficient to charge the party with notice, such mailing would, however, be a step in the direction of actual notice, and slight corroborative evidence would warrant the inference that such notice was received.
    4. Secondary evidence as to contents of letter.—The court is of opinion that the testimony of appellee in reference to the contents of the letter claimed to be lost was properly admitted, as sufficient foundation was laid to justify secondary evidence as to its contents.
    5. Evidence.—Where the question at issue was in regard to overloading a car load of hogs, and appellant introduced a witness who stated that he had been in the habit of shipping hogs in cars for many years, and appellant then, offered to prove by him that hogs of the number and weight of the hogs in controversy could not be safely shipp ;d in one car in hot weather. Held, that such evidence was proper. This was not expert evidence. It was the proof of a fact that could he testified to by any one wiio knew it.

      Appeal from the Circuit Court of Vermilion county; the Hon. J. W. Wilkin, Judge, presiding.
    Opinion filed July 3, 1884.
    Messrs. Mann, Calhoun & Frazier, for appellant;
    as to pleading, cited C. B. & Q. R. R. Co. v. Hale, 2 Bradwell, 159; Angell on Carriers, 440, 446.
    Mr. F. Bookwalter, for appellee;
    that letters duly mailed are presumed to reach their destination, cited 1 Greenleaf on Evidence,-§ 40.
   Higbee, P. J.

This suit is in case, to recover against appellant as a common carrier for failing and neglecting to furnish water for a car load of hogs while in the care of appellant, being carried from Gatlin, Illinois, to Indianapolis, for appellee, by reason whereof said hogs became heated and a portion of them died and others were greatly damaged.

The general issue was pleaded, and also two special pleas, setting up a written contract under which the stock was shipped, and averring breaches of the terms thereof. To the first special plea'the court sustained a demurrer and the ruling in this regard is assigned for error.

We think, notwithstanding the shipment w;as made under a written contract, that the suit was properly brought in case, and in this form of action the special plea to which the demurrer was sustained was not necessary, as the same matter of defense set up in it could be, and was given in evidence under the general issue, and therefore no injury resulted to appellant by sustaining the demurrer to said plea.

On May 17, 1830, appellee delivered to appellant atCatlin, seventy-two head of hogs, weighing in the aggregate, 15,840 pounds, to be shipped to Indianapolis. They were loaded about five o’clock p. ar. of that day; left Gatlin forty minutes later and arrived at Danville about six o’clock, where they were allowed to stand on a side track until between eight and nine o’clock, when they were delivered to the Indianapolis, Bloomington & Western Railway to be forwarded by it to the place of destination. When the hogs were loaded they were brought out of water in a ditch and they were cool; when they arrived at Danville, a distance of six miles, they were hot and panting, the day being very warm. On arriving at Danville, appellee went to the agent of the road and informed him that the hogs needed water; he was then directed to the yard-master, who refused to water them, and when applied to a second time by appellee and told that the hogs would die if not watered, he replied that he did not care if they all died. There was no water near, and appellee was unable to water them until after they had been transferred to the track of the I. B. & W. about nine o’clock, when they were watered; they were again watered at Covington and arrived at Indianapolis about nine o’clock the next morning; they were then cool; nine of them were dead and eight more badly injured.

The contract of the parties was read in evidence from which it appeared among other things, that in consideration of a reduced rate for carrying the stock, appellee agreed that he would accompany the same and feed and water them at his own risk. This agreement could only be performed by him upon the company’s furnishing him with proper facilities for so doing. It was as much the duty of the company to provide water at suitable points on the line of its road for the use of stock, as to carry it, and as it owned the trains, the tanks a'nd the water within them, and had entire and exclusive control of all the movements and stoppages of the trains, with which no shipper could interfere, appellee was at its mercy and could only water the stock when permitted to do so by the employes of the company. I. C. R. R. Co. v. Adams, 42 Ill. 487; T. W. & W. Ry. Co. v. Thompson, 71 Ill. 489.

The evidence tends to show that appellant had a tank at Danville, and when its employes were informed that the stock would die if not watered, it was their plain duty, instead of insulting appellee with taunting remarks, to have hauled the car containing his stock to the tank and afforded him an opportunity to have watered it, and for the neglect of this duty the company is liable if damage resulted therefrom.

It is next claimed by appellant’s attorneys that appellee failed to comply with a provision of the contract to the effect that “no claim for damages should be allowed or paid by the company, or sued for in any court, unless a claim for such loss in writing, verified by the affidavit of the claimant or his agent, and delivered to appellant’s general freight agent at his office in St. Louis, within five days from the time, said stock should be removed from the cars.” The stock was unloaded on May 18th, and on the 19th, appellee made a claim upon the company for his damages, and after verifying it by affidavit, forwarded it by mail addressed to A. C. Bird, General Freight Agent of W., St. L. & P. Ry. Co., at St. Louis, Mo. The mail left Danville at 12 o’clock m., on the 19th, and should have reached St. Louis the same evening. On the 25th or 26th, appellee received an answer to his letter from Mr. Bird, saying that the road was under no obligation to pay the claim. Appellee stated as a witness that the letter had been lost and that he did not remember its date. In See. 501 of Wade on the Law of Notice, it is stated, that when the notice is not of that character that the mere mailing of it is sufficient to charge the party with notice, such mailing would, however, be a step in the direction of actual notice, and slight corroborative evidence would warrant the inference that such notice was received. Take the whole of the evidence in this case, especially the fact that an answer was so promptly received, and we are inclined to think the finding of the jury upon this point was justified.

Appellant complains of the ruling of the trial court in permitting appellee to testify to the contents of the letter received from Bird, instead of producing the letter itself. We have carefully examined the evidence of appellee in reference to its loss, and think sufficient foundation was laid to justify secondary evidence of its contents. It was not necessary to produce all the persons who had merely handled the letter to testify as to their ability to produce it. It Was not shown to have been in their custody, nor did it belong there, and to attempt to trace it through all such sources would be endless.

The next error assigned, we regard as more substantial. By the contract for the shipment of the hogs signed by appellee, he agreed to load and unload the stock, and that the company should not lie liable for suffocation caused by crowding or overloading. One of the theories of the defense below was that the injury to the hogs was caused by appellee’s overloading the car, and to support this defense, appellant introduced as a witness William Sanduky, who stated that he had been in the habit of shipping hogs in cars for many years, and appellant then offered to prove by him, that hogs of the number and weight of the hogs in controversy could not be safely shipped in one car in hot weather, but an objection by appellee was sustained, and the court refused to receive the evidence, to which appellant at the time excepted. This was not expert evidence. It was the proof of a fact that could be testified to by any one who knew it. Alexander v. Town of Mt. Sterling, 71 Ill. 366. It was especially important to appellant in this case, in view of the evidence upon which appellee relied for a recovery. The first wo hear of a part of the hogs being dead and others permanently injured, was on their arrival at Indianapolis. The jury must have inferred in the absence of proof tending to show the contrary, that the injury was caused by the failure to water the hogs before they were transferred by appellant to the I., B. & W., at Danville. This evidence tended to show that the injury was caused by the fault of appellee in overloading, and was therefore important as tending to rebut the case made by plaintiff, and should have been admitted by the court.

Judgment reversed and cause remanded.

Reversed and remanded.


author: Htobee, P. J.

text:
    Lincoln Coal Mining Co. v. Bryant McNally et al., etc.
    1. Declarations op agent.—The declarations of an agent of a company, whether i> corpovated or not, are only admissible in evidence against the company when they foim part of the res gestae of some business transacted \ y him for his principal within the scope of his authority.

      2. Declarations.—Where it was claimed that the evidence failed to show that appellant was incorporated,as it appeared that the two parties whose declarations were received, were interested in the company as stockholders, that their evidence was against their interest, and therefore proferly ad" mitted. Held, that if admitted on that ground, the declarations should have been received only as evidence against the parties making them, and not permitted to affect the rights of the other parties in interest.
    3. Damnum absque injuria.—Where the death of a party is the result of a purely accidental occurrence, without the fault of those causing it, no action will lie, for though there is damage, the thing amiss, the injuria, is wanting.
    4. Master and servant.—Where a party voluntarily enters service and continues therein, with full knowledge of its dangerous character, he assumes all the risks incident to the service in which he is engaged.
    5. Fellow servants.—Where the parties causing the death of deceased were in the service of a common master, both actually co-operating at the time of the injury in the same thing—putting a pipe in a shaft, the deceased in the shaft, the others at the top, all in the presence and hearing of each other, their relations being such that they could have exercised an influence, one upon the other, promotive of proper caution in respect of their mutual safety, they were fellow servants within the rule which exempts the master for liability for an injury inflicted upon one by the carelessness of the other.
    6. Same.—Where at the time of the accident D. and deceased! with other employes, were performing the labor of common servants, neither exercising any authority over the other, but being co-servants as to the labor then being performed, the mere fact that D. may have had the power to employ and discharge other servants and to superintend them when at work, would not change his character from that of a co-servant to that of a repre - sentative of the company.
    Appeal from the Circuit Court of Logan county; the Hon. Gf. W. Hei’vOMan, Judge, presiding.
    Opinion filed July 3, 1884.
    Messrs. Beach & Hodnett and Mr. E. E. M. Cochean, for appellant;
    that for injury to the deceased through the negligence of the foreman, the company is not responsible, because they were fellow servants in the same line of employment, cited Honner v. I. C. R. R. Co., 15 Ill. 550; L. C. R. R. Co. v. Cox, 21 Ill. 20; Moss v. Johnson, 22 Ill. 633; C. & A. R. R. Co. v. Keefe, 47 Ill. 108; C. & A. R. R. Co. v. Murphy, 53 Ill. 336; C. C. & I. C. R. W. Co. v. Troesch, 68 Ill. 545; St. Louis & S. E. Ry. Co. v. Britz, 72 Ill. 257; I. C. R. R. Co. v. Keen, 72 Ill. 512; T. W. & W. R. R. Co. v. Durkin, etc., 76 Ill. 395; C. & A. R. R. Co. v. Rush, 84 Ill. 571; C. & N. W. Ry. Co. v. Moranda, 93 Ill. 302; C. & T. R. R. Co. et al. v. Simmons, 11 Bradwell, 147; C. & N. W. Ry. Co. v. Scheming, 4 Bradwell, 533.
    Declarations or admissions of the officers of a corporation of and concerning a past transaction are placed upon the same grounds as the declarations or admissions of an agent that are not a part of the res gestee and are not competent: 1 Phillipps on Evidence, p. 402, n. 134; 1 Cfreen leaf on Evidence, 113, 114; Abbott, Trial Evidence, 44; Cov. Mnt. Ben. Asso. v. Conway, 10 Bradwell, 348; G. & M. R. R. Co. v. Burns, 92 Ill. 302; County of La Salle v. Simmons, 5 Gilman, 513; School Directors v. Wallace, 9 Bradwell, 312; Thomas v. Rutledge, 67 Ill. 213; Jenks v. Burr, 56 Ill. 450; Mix v. Osby, 62 Ill. 193; Linblom v. Ramsey, 75 Ill. 246; Waggonseller v. Rexford, 2 Bradwell, 455; Angell & Ames on Corporations, 324.
    Messrs. Bunm & Hoblit and Messrs. Forrest & Humphrey, for appellees;
    as to admission of agent’s declarations, to prove Tcnowledge of the existence of the fact, cited Abbott’s Trial Evidence, p. 45, § 53; Chapman v. Erie Rv. Co., 55 N. Y. 582; Lanning v. N. Y. C. R. R. Co., 49 N. Y. 538; Wilson v. McCullough, 23 Pa. 440; Commercial Bk. v. Woods, 7 W. & S. 89.
    As to duty of master to furnish safe appliances: Tarrant v. Webb, 18 C. B. 797; Gilman v. Eastern R. R. Co., 10 Allen (Mass.), 238; Cayzer v. Taylor, 10 Gray (Masr.), 274; Keegan v. R. R. Co., 8 N. Y. 175.
    When the negligent act complained of arises out of and is the direct result of the exercise of the authority conferred' upon one by the master over his co-laborer, the master will be liable. In such case, he is not the fellow servant of those under his charge with respect to the exercise of such power: C. & A. R. R. Co. v. May, 108 Ill.; C. B. & Q. R. R. Co. v. Dougherty, Chicago Legal News, April 5, 1884, p. 240; Lanning v. R. R. Co., 49 N. Y. 521; Flick v. R. R. Co., 53 N. Y. 549.
   Htobee, P. J.

This suit was brought by appellees as administrators of Samuel Gambrel, deceased, against appellant, a coal mining company, to recover damages for wrongfully and negligently causing the death of deceased. The trial of the cause in the court below resulted in a verdict and judgment for appellees, and the company brings the case here for review.

The first reason urged for a reversal is that the trial court erred in admitting certain evidence in behalf of appellees against the objections of appellant. The suit was against the company as a corporation created under the laws of this State; and for the purpose of proving that deceased was wrongfully and negligently killed by the servants of the company while engaged in the service, as alleged in the declaration, appellees were permitted, against the objections of appellant, to read in evidence to the jury an affidavit of Frank Frorer, the superintendent of the company at the time deceased was killed, made before the coroner at the inquest held by him over the remains of deceased; and also to prove the verbal declarations of said Frorer and one Harts, one of the directors of the company, giving their account of what transpired at and before the time of the accident.

The declarations of an agent of a company, whether incorporated or not, are only' admissible in evidence against the company when they form a part of the res gestee of some business transacted by him for his principal within the scope of his authority.

1 Phillipps on Evidence, page 402, note 134; 1st Green-leaf’s Evidence, paragraphs 113, 114; Abbott's Trial Evidence, page 44, paragraph 51; The Covenant Mutual Benefit Association of Illinois v. Catherine Conway, 10 Bradwell, 348; The Grayville & Mattoon R. R. Co. v. Burns, 92 Ill. 302; County of LaSalle v. William Simmons, 5 Gilman, 513; School Directors, etc., v. Wallace, 9 Bradwell, 312; Thomas v. Rutledge, 67 Ill. 213; Jenks v. Burr, 56 Ill. 450; Mix v. Osby, 62 Ill. 193; Linblom v. Ramsey, 75 Ill 246; Waggonseller v. Rexford, 2 Bradwell, 455; Angell & Ames on Corporations, paragraph 309, page 324.

Both the verbal and written declarations received in evidence were made after the happening of the accident to which they referred and not in the course of any business then being transacted by the parties making them for the company. The persons making them were both competent witnesses, and instead of proving their declarations made out of court, in reference to the disputed facts of the case, they should have been produced as witnesses in open court and there examined on oath, subject to cross-examination.

But it is insisted by appellees’ counsel that the evidence | failed to show that appellant was incorporated, and as it ap- ' peared that both Frorer and Harts were interested in the com-1 pany as stockholders their evidence was against their interest/ and therefore properly admitted. If admitted upon that ground the declarations should have been received only as evidence f against the parties making them and not permitted to affect | the rights of the other parties in interest. Again, appellees | having declared against the company as a corporation, they were estopped from denying that fact on the trial. These witnesses were subsequently called and testified as witnesses in behalf of appellant and it is claimed by appellees that their evidence was in conflict with the declarations received in evidence and that the same was proper as impeaching evidence. Ho foundation had been laid for admitting it as impeaching evidence, nor was it offered or received for any such purpose, but as evidence in chief for which purpose it was improperly admitted by the court. But it is said by appellees that the affidavit and declarations admitted in evidence did not tend to prejudice the rights of appellant, and therefore the judgment should not be reversed for that reason. What effect this evidence had in producing a verdict which we think was not warranted by any evidence in the record we can not certainly know, but we are not prepared to say that appellant was not seriously prejudiced by it.

It is next contended by appellant that the court erred in overruling a motion for a new trial, for the reason, as alleged, that the evidence did not show that the death of appellees’ intestate was caused by the negligence of appellant’s servants.

At the time deceased received the injury which caused his death, he and one William Moore were working on a scaffold in an escapement shaft, putting up a water pipe. The shaft was 275 feet deep, and the scaffold on which these parties were working had been built up from the bottom about 100 feet, leaving them still below the surface 175 feet. The pipe was in joints or sections of sixteen feet, and had to be fastened together as it was put up, and then secured in its place by staples driven into the wood work; cleats were nailed to the timbers in the shaft, and oak boards six to eight feet long, ten to twelve inches wide and two inches thick, were laid thereon. This formed the scaffold upon which the men stood while putting up the pipe. Timothy .Downey, the shift boss, and William McFaden, a laborer, were letting the boards down, as they were needed, with a rope or hand line fastened around each one sent down by a loop or slip knot about three feet above the lower end and two half-hitches above the loop, the last one coming up within a foot of the top. While one of the boards was being lowered in this way it slipped out of the rope and fell upon deceased, inflicting the injury which caused his death. The accident was not the result of any defect in the line or rope used, nor of any want of skill on the part of those handling it. Downey, who had hold of it at the time, was a skillful and careful miner, thoroughly versed in his business, and accustomed to letting scaffolding boards down as this was done. The overwhelming weight of evidence, from a great number of experienced miners, very clearly shows that the manner in which the board was fastened, with a loop or slip knot and two half-hitclies, was in general use among miners, and was regarded as perfectly safe, and no accident was known ever to have happened from its use. Mo one knew this fact better than deceased. He had had considerable experience in mining, had frequently been employed as shift boss, and had been accustomed to letting down scaffolding boards with the hand line fastened as this was. When working below and untying some of the boards sent down by Downey, he remarked that there was no use in putting more than one half-hitch on them, it was so much bother to untie them; that they had tied them as if they expected them to stay tied always. For two days prior to the accident Downey had worked on the scaffold below with deceased, and went to the top to take the place of the person handling the line at the request of deceased, who had the greatest confidence in his skill and caution, and at the time expressed the belief that it would be safer to have Downey let the boards down. FTo witness seems to be able to give any satisfactory reason for the board slipping from the line; they do not attribute the accident to any defect in the line used, the manner of fastening it, or to the want of care or skill on the part of those holding it; and, so far as we can see, the verdict of the jury finding appellant guilty of negligence in causing the death of deceased finds no support in the evidence contained in the record before us. On the contrary, the proof leaves no doubt but that the death of deceased was the result of a purely accidental occurrence, without the fault of those causing it, for which no action will lie; for though there is damage, the thing amiss—the injuria—is wanting. Cooley on Torts, p. 80. It is suggested by some of the witnesses that the accident could have been avoided by a swinging scaffold or platform for the workmen to stand on while putting up the pipe. This was tried, and the workmen, including deceased, refused longer to work on it, and it was discarded. Again, the evidence of those best informed on the subject declares that scaffolding from the bottom is generally used and regarded as much safer. Other means have been suggested by which the accident could have been avoided, but they seenvnot to have been generally adopted or to have met the approval of those best informed upon the subject. But even if a less hazardous manner of scaffolding and letting down the boards could have been adopted, the deceased, in voluntarily entering the service and continuing therein with full knowledge of its dangerous character, assumed all the risks incident to the service in which he was engaged. I. B. & W. R. R. Co. v. Flanigan, 77 Ill. 865; W. St. L. & P. Ry. Co. v. Few, at the present term of this court; C. & E. R. R. Co. v. Geary, 109 Ill. —.

The relation of master and servant imposes no obligation on the master to take any more care of the servant than he may reasonably be expected to take of himself, and he can not justly complain of injuries received in the service if he continues therein with full knowledge of his danger. Wharton on Hegligence, Secs. 21á and 217.

It is also contended that the deceased and Downey, and the person assisting him at the top of the shaft, bore such relation to each other in the service of appellant, that one could not recover of the common employer damages caused_by the negligence of the other.

As we have already seen, the parties causing the death and the deceased were in the service of a common master, both actually co-operating at the time of the injury in the same thing, putting the pipe in the shaft, the deceased in the shaft and the others at the top, all in the presence and hearing of each other, their relations being such that they could have exercised an influence, one upon the other, promotive of proper caution in respect of their mutual safety, and they were fellow servants within the rule which exempts the master from liability for an injury inflicted upon one by the carelessness of the other. C. & N. W. Ry. Co. v. Moranda, 93 Ill. 302.

But it was claimed that Downey had the power to hire and discharge other employes of the company working at the shaft and to superintend them when at work, and therefore he was a representative of the master and not a fellow servant with deceased. It is not necessary to inquire how far, if at all, he represented the power of the common master. The mere fact that he may have had the power to employ and discharge other servants, if conceded, and to superintend them when at work, did not, as to the particular alleged act of negligence by which deceased was killed, change his character from that of a co-servant to that of a representative of the company. The death of deceased was not the result of the exercise of any authority conferred upon Downey, He exercised no power that placed deceased in a more exposed or dangerous position than he would otherwise have occupied, nor did any power exercised by him contribute to the accident. The authority possessed by Downey, whatever it may have been, liad no influence or bearing upon the accident which caused the injury, and at the time of the accident Downey and deceased were performing the labor of common servants, neither exorcising any authority over the other, and they were co-servants as to the labor then being performed by them.

For the reasons here given the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Highee, P. J.

text:
    The People, etc., v. A. E. Harmon et al.
    1. Action on penal bond—Assignment op breaches.—Under oar statute a plaintiff in an action on a penal bond is at liberty to assign in h s declaration in the original suit as many breaches as he miy think fit, and he may also assign from time to time such further breaches as occasion may require; and When assigned subsequently to the rendition of the original judgment the proceeding does not become a distinct action, but is regarded as a part of the original suit. The assessment of damages, however, must not exceed in the aggregate the amount of the judgment for the penalty of the bond.
    2. Demurrer.—Where, in the trial of the original cause under the stipulation of the parties, the plaintiff was entitled to recover damages for so many breaches of the conditions of the bond as he should prove, and breaches not litigated on that trial could be subsequently assigned and recovered for, and he afterward assigned an additional breach of the condition of the bond and to the defense of the previous judgment as a bar filed a replication that the damages demanded were not the same, etc. Held, that it was error for the court to sustain a demurrer to such replication. -
    Euros to the County Court of Champaign county,
    Opinion filed July 3, 1884.
    Mr, J, L, Ray, for plaintiff in error.

      Mr. J. S. Wolfe, for defendants in error.
   Highee, P. J.

The defendant, A. E. Harmon, was appointed guardian of William F. Gloltra, by the County Court of Champaign county, in 1866, and the other defendants in error were the sureties on his bond. Harmon was subsequently removed, and one A. G-. Paro appointed his successor, who brought suit in said court in the name of “The People of the State of Illinois,” for his use as guardian against defendants in error, in an action of debt upon the bond, and at the May term, 1879, of said court, recovered a judgment for $3,600 debt, the penalty of the bond, and $427.24 damages.

A number of breaches of the condition of the bond were assigned in the declaration, and several pleas filed by defendants, but the case was finally tried upon an agreement of the parties that all pleas should be withdrawn, that plaintiff might give in evidence under the declaration any matter that could properly be given under any breach well assigned, and that the defendants might give in evidence any matter that could be given if well pleaded.

At the May term, 1883, of said court, the said William F. G-oltra, having attained his majority, assigned in said canse as an additional breach of the condition of said bond, that Harmon received, while acting as such guardian, the sum of one thousand dollars belonging to his ward, which lie failed to account for and pay over.

To this breach the defendants, by their second amended plea, setup and relied upon the judgment of the May term, 1879, as a bar to the damages' claimed.

To this plea the plaintiff, by leave of the court, filed several replications. The first, second, third and fourth were, that the damages demanded in the present breach are not the same for which plaintiff recovered judgment on the former trial.

The court sustained a demurrer to each of these replications, and its action in so doing presents the principal question we are to consider.

Section 20 of chapter 110 of the Revised Statutes, provides: “ In all actions brought on penal bonds, conditioned for the performance of covenants, the plaintiff shall set out the conditions thereof, and may assign in his declaration as many breaches as he may think fit; and the jury, whether on trial of the issue or of inquiry, shall assess damages for as many breaches as the plaintiff shall prove, and the judgment for the penalty shall stand as security for such other breaches as may afterward happen, and the plaintiff may, at any time afterward, sue out a writ of inquiry, to assess damages for the breach of any covenant or covenants contained in such bond subsequent to the former trial of inquiry.”

The judgment in this class of cases is for the entire penalty of the bond, and stands as a security for such damages as may be assessed from time to time. The obligation is merged in the judgment, and no further proceedings can be had on it except in the manner indicated by the statute. Originally, at common law, but one breach of the obligation could be assigned, but this was long since changed by a British statute. Under our statute a plaintiff is at liberty to assign in his declaration, in the original suit, as many breaches as he may think fit, and he may also assign, from time to time, such further breaches as occasion may require; and when assigned subsequently to the rendition of the original judgment, the proceeding does not become a distinct action, but is regarded as a part of the original suit. The assessment of damages, however, must not exceed in the aggregate the amount of the judgment for the penalty of the bond.

In the trial of the original cause, under the stipulation of the parties, the plaintiff was entitled to recover damages for so many breaches of the conditions of the bond as he should prove, and breaches not litigated on that trial could be subsequently assigned and recovered for. In The People v. Compher, 14 Ill. 455, it was expressly held that “in order to authorize a further assignment of breaches, it is not necessary that the default should arise subsequent to the former assessment. It is sufficient that it is for another and different breach.” It follows from this view of the law that the matter set up in defendant’s first, second, third and fourth replications was a good answer to defendant’s second amended plea, and that the court erred in sustaining the demurrer to said replications.

After the demurrer was sustained the court proceeded to the trial of the cause on another replication to said plea, which we regard as presenting an immaterial issue, and finally dismissed the suit and rendered judgment against plaintiff for costs.

For the error above indicated the judgment is reversed and the cause remanded.

.Reversed and remanded.