author: Mr. Justice Bibell

text:
    Jacob Wordorski, Appellee, v. Illinois Steel Company, Appellant.
    Gen. No. 5439.
    1. Master and servant—who are fellow-servants. Members of a gang engaged in piling iron altbougb strangers to each other are fellow-servants.
    2. Master and servant—what not ordinary manual labor. Held, that the piling of bot steel plates might properly be found by the jury not ordinary manual labor where it was done in a mill at night, by artificial light, amidst a mass of steam, and if the injury sued for be the result of the master not having employed experienced and skillful labor a recovery will be sustained if the servant injured did not know or might not have known by the exercise or ordinary care of the inexperienced and unskillful character of the servants causing the injury.
    3. Evidence—when opinion competent upon question of danger.
      If the circumstances surrounding the doing of work are far beyond the experience of an ordinary juryman it is competent to inquire of one experienced in such work whether it was dangerous to have an inexperienced man doing such work.
    4. Evidence—when irresponsive and incompetent answer will not reverse. Such an answer will not reverse in the absence of a motion to strike.
    5. Veedicts—when not excessive. Held, in an action on the case for personal injuries, that a verdict for $7,250 after being reduced by remittitur to $5,250, was not excessive where it appeared that the plaintiff as a result of the injury suffered a hernia, varicose veins, a blood clot in the leg, and that a permanent injury affecting his ability to do heavy manual labor resulted.
    Action in case for personal injuries. Appeal, from the Circuit Court of Will county; the Hon. Charles B. Campbell, Judge, pre-
    siding. Heard in this court at the October term, 1910. Certiorari denied by Supreme Court (making opinion final).
    Affirmed on remittitur.

    Opinion filed April 25, 1911.
    Rehearing denied May 25, 1911.
    Garnsey, Wood & Lennon and John R. Cochran, for appellant; Knapp & Campbell, of counsel.
    Barr, McNaughton & Barr, for appellee.
   Mr. Justice Bibell

delivered the opinion of the court.

Appellee was injured on the night of September 4, 1908, while he was at work in the merchant mill of the Illinois Steel Company, appellant. He brought this suit to recover damages for said injuries. The first count of the declaration charged that appellant so carelessly and improperly maintained and operated a certain pile of iron and steel plates that, through the negligence of appellant in that behalf, a large plate of iron or steel fell upon appellee and he was thereby injured. The second count charged that appellee was ordered by appellant to pile up plates of iron and steel and that appellant through its servants, who were not fellow servants of appellee, permitted said plates to be handled in an unsafe manner and in such a dangerous manner as to render them liable to injure appellee while working about the plates, which conditions were known to appellant and not to appellee, and that appellant permitted one of said plates to move upon appellee and he was knocked down and injured. The third count charged that appellee and other workmen of appellant were engaged in moving certain steel plates in its mill; that appellant hired other and inexperienced and incompetent men to help in moving said plates, which inexperience and incompetency was known to appellant and not to appellee; that said inexperienced men were unskilled and awkward in handling said plates and this rendered it unsafe for appellee to perform said work; that it was the duty of appellant to warn appellee of the danger of working with said men, but that it negligently failed to do so and while appellee was piling said plates by order of appellant with due care for his own safety, one of said inexperienced and incompetent servants, not a fellow servant of appellee, so negligently handled said plates as to cause one of them to move upon the plaintiff, and by reason of the negligence of appellant and the inexperience and incompetency of said servant moving said plate, the same moved upon the appellee and struck him in the abdomen and other parts of the body and knocked him down and injured him severely and he suffered a double hernia. The fourth court alleged that said plates were so hot that it was necessary for each man to use tongs in taking hold of a plate; that appellant ordered appellee to work with other new, incompetent and inexperienced men, and, while appellee was piling plates and lifting a plate with due care for his own safety and not knowing the danger of working with said men, appellant through said new, inexperienced and incompetent servants, not fellow servants of appellee, allowed said plate to move, when appellant knew or by reasonable care might have known that said men were inexperienced and incompetent and that the piling of said plates by said inexperienced and incompetent servants was dangerous and liable to injure appellee and others; and that by reason of such negligence of appellant in causing appellee to work with said inexperienced and incompetent servants, not fellow servants of appellee, one of said plates slipped upon appellee and he was knocked down and injured. An additional count charged that it was the duty of appellant to afford appellee a reasonably safe place to perform the work of moving and piling steel plates in which he was engaged in the employ of appellant, and reasonably safe means for performing said work; that appellant caused other servants, who were inexperienced and incompetent, to help in moving and piling said plates, which inexperience and incompetency was, or by reasonable care might have been, known to appellant and was unknown to appellee ; that said inexperienced men were unskilled and awkward in handling said plates and incompetent to do the work in a reasonably safe manner, and that said work was dangerous for incompetent and inexperienced servants to perform, as appellant well knew and that the inexperience and incompetency of said servants rendered it unsafe for appellee to assist in piling said plates, as appellant knew or might have known by the exercise of due care and which appellee did not know; and that appellee in the exercise of due care for his own safety, while acting under the orders of appellant, was struck and knocked down by one of said plates through the negligent and incompetent handling of the same by one of said inexperienced and incompetent servants, and said incompetent and inexperienced servant threw or pushed said plate against appellee and struck him in the leg or foot, and appellee was knocked down upon a pair of tongs which he had in his hand, and was thereby injured by the inexperience and incompetency of said servants, and he suffered a double hernia and internal injuries and was rendered unable to work, etc. Appellee had a verdict and a judgment for $7,250 from which the defendant below appeals.

The evidence favorable to appellee tends to show the following facts. There were in the merchant mill three or four platforms made of iron rails placed close together. On one side of each of these platforms certain steel plates just from the furnace and at a white heat, were piled up. These plates were from twenty-five to thirty feet long, six inches wide, about three quarters of an inch thick and each weighed 350 to 400 pounds. After they had been so placed water was poured upon them till they were partially cooled. It was then the duty of a gang of six men to move each plate across to the other side of the platform and make a pile thereof. Afterwards other men took them from this pile to a machine near by where they were cut into short plates to be used in binding together railroad rails at their joints. The plates were still so hot when moved across the platform that they were required to be moved by the use of iron tongs about two feet long. The moving or sliding of these hot plates across the platform evidently made the whole platform hot, and it was called “the hot bed.” Much steam was engendered by the pouring of water upon said plates when at a white heat. The place was so hot that one gang of men could only keep at work a little while. When one gang of men had piled fifty plates on the second pile above mentioned, they quit work and stepped aside to rest and cool themselves while another gang of six men moved fifty plates across the hot bed. At the time appellee was injured the pile being made of plates so moved across the hot bed had reached the height of about three and one-half feet. The work of moving and piling the plates was divided among the six men in this way. One man stood at one end and another at the other end of a plate and each seized it with his tongs, and the two men moved the plate across the hot bed, and these men were known as the end men; the other four men stood in front of the pile which was being made and as the new rail was brought up to them they stepped over it and then each of the four men took hold of it with Ms tongs and they lifted the plate and placed it on the pile. Care was needed in doing tMs because the plates were so hot and long and tMn that they were liable to bend in the center and so might not readily lie in place upon the pile. Appellee bad at different times for years worked in appellant’s plant for appellant at different Mnds of employment, and about two years before be was hurt bad worked a month or two at piling plates. On the night in question appellee had not been in the employment of appellant, but was standMg outside of the gate, waiting for employment if he should be needed. TMs gang was short of men and was filled up, and appellee was called in by the “straw boss” and ordered to pile plates. He was placed as one of the four men in the center. The two men at the end were Sienko and a man named John Eula or Koval. Sienko had worked at piling plates some time. After he had worked in the center a year and a half, he was pla :ed on the end. The work on the end was considered more difficult and dangerous than in the center. Eula had worked at piling plates only one half day and one half night before that tune, but had worked elsewhere in the merchant mill. The other three men had not worked before at that particular work, though they might have worked elsewhere in the mill. An inexperienced man can work in the center, but not upon the end. The other three men in the center with appellee were small men and on that account had difficulty in putting the plates upon the pile. As the four placed a certain plate upon the pile it bent in the middle and was liable to fall off. Sienko and Eula brought another plate across the hot bed. The other three men stepped back and stepped over the approaching plate. Appellee who was at the end next to Eula, remained at his place trying with his tongs to straighten the last plate upon the pile, so that it would not fall off. Sienko stopped his end of the plate a safe distance back, but Eula brought his end against appellee and struck him with it in the back of the ankle or the heel and quite sériously hurt him. Appellee either fell down or fell over upon his tongs and the end of the tongs struck him in the right groin. He was taken away and taken home and the next morning examined by a surgeon in the employ of appellant, who found not only the injury to the heel or ankle, but also an inguinal hernia or rupture in the right groin. He caused appellee to be moved to a hospital where appellee remained about twenty days. The injuries to the ankle or heel were speedily healed and appellee found that it was proposed to perform an operation upon him for hernia, and he thereupon returned to his home, where he has ever since remained. The extent of his injuries will be described later.

It is obvious that the members of the gang were fellow servants of appellee. They were all strangers to him, except Sienko. According to appellee’s proof they were all inexperienced in this work, except Sienko and appellee. Appellant contends that this was the most common kind of manual labor, to be likened to the piling of wooden ties along a railroad, and, relying upon Timm v. M. C. R. R. Co., 98 Mich. 226, Roepcke v. M. C. R. R. Co., 100 Mich. 541, Nephew v. Whitehead, 123 Mich. 255, and other like cases, appellant contends that there can be no recovery for injuries received for performing such work. In view of the enclosed position within a mill at night with only artificial light, the mass of steam necessarily engendered, the great heat of the place and of the steel and of the bed or platform, and the weight of the hot and therefore still flexible plates, the jury might fairly find that this was not common labor, but that it was dangerous unless performed by men of experience and skill. The rule laid down in Western Stone Co. v. Whalen, 151 Ill. 472, is thus summarized by the reporter: “Where a master employs a servant to engage in a business known to be hazardous, and where the proper and safe discharge of the duty requires a high degree of care, skill and diligence, the master will be held, in the selection of the servant, to the exercise of care reasonably commensurate with the perils and hazards likely to be encountered in the performance of the duty. And the master impliedly contracts with each servant that he has and will discharge that duty, and the servant may, without sufficient appearing to put him upon notice to the contrary, rely upon the due and reasonable performance of it by the master.”

In Fraser & Chalmers v. Schroeder, 163 Ill. 459, the doctrine there held is thus stated in the headnote: “The master must assign the performance of a known dangerous duty to an experienced servant, and if he assigns such duty to an inexperienced servant, by whose unskillful performance another servant is injured, the master must be held to answer.” The court there said: “The description of the device by this and other witnesses makes it clear that the lever in the hands of an inexperienced man, during the lifting of heavy objects, renders it extremely dangerous to those turning the cranks. It is in proof that Buchin was wholly inexperienced in the performance of that duty, having never attempted it before. If Blae, the representative of the defendant, did not know these facts, he could have readily ascertained them by the use of even slight diligence before engaging in the work and before ordering him to do that which he knew might endanger plaintiff and others. The evidence showed that plaintiff had no previous knowledge of the competency or incompetency of Buchin, and he certainly had no opportunity to inquire into that fact after the order was given.”

In Klofski v. Railroad Supply Co., 235 Ill. 146, the court approved the following instruction:

“It was the duty of the defendant to use reasonable care to learn and know whether its servants were competent and fit for their work, so that it would be reasonably safe for the defendant’s other servants to work with them without being exposed to unnecessary danger to life or limb by reason of incompetency, if any; and if defendant’s servant known as ‘Scotty’ was incompetent for his work, and if by reason thereof other servants of defendants were exposed to unnecessary danger to life and limb, and if defendant by reasonable care would have known of such incompetency and danger, if any, before the alleged injury to plaintiff, in time by reasonable care to prevent such danger, then it was defendant’s duty to use reasonable care not to expose the plaintiff to the danger, if any, of working with such incompetent servant, if any.”

The court also there said: “If defendant negligently employed an incompetent servant and set him to work with appellée, thereby exposing appellee to danger from the incompetency of such servant, such a danger is not one of the ordinary and usual hazards of the employment which appellee assumed by his contract of hiring. If he assumed such danger at all, it would only be upon the supposition that he knew of such incompetency, and voluntarily without protest, continued in such employment. Whether he had such knowledge or ought to have had such knowledge was a question of fact for the jury.”

Applying these principles to this case, the evidence favorable to appellee would authorize the jury to find that it was negligence for appellant to employ and place at this work men who were inexperienced in its performance and that it was because of that inexperience, and therefore incompetency to perform this work, that the three men in the center with appellee released the plate from their tongs and stepped back when the plate was bent in the center and was liable to fall off, and that Eula swung his end of the next plate further than Sienko did and brought it against appellee’s heel or ankle while he was still at work trying to straighten the plate on the pile so that it would not fall off. Appellant contends that appellee was negligent in not removing his tongs from the bent plate on the pile and stepping back with the others. This also was a question for the jury.

Appellant contends that these were all experienced men. Rula testified for appellant that he had worked at piling plates before. His evidence all considered, however, did not show that he had been regularly at that work, but that he had sometimes been placed there for a half day or a day, when the old hands did not come. The night foreman testified that appellee was the only new man in that gang and that all the rest were old hands. He did not, however, name the other three men nor did he know their names. He only knew them by number and he did not give their numbers. They were strangers to appellee and appellant did not call them. Said night foreman testified that he did not remember who the other men were. It was a question for the jury whether he knew that they were experienced at that work or had worked there before, and it is strange that they were not called by appellant. His entire examination shows that he only knows of Rula having been placed there temporarily at some times when other men were sick. He testified that Rula never worked in the center but only on the ends, while Rula testified that he had worked in the center as well as on the ends.

Appellee asked of Sienko various questions on the subject whether it was dangerous to have an inexperienced man working on the end. The circumstances surrounding the doing of this work were so far beyond the experience of an ordinary juryman that, under Donk Bros. Coal Co. v. Stroff, 200 Ill. 483; Gundlack v. Schott, 192 Ill. 509, and 2 Elliott on Evidence, sec. 1031, opinion evidence was competent. During said inquiry the witness gave one improper and unresponsive answer to a question to which an objection by appellant had been overruled. No motion was then made to exclude that answer, but at the close of the entire direct examination appellant moved to strike out each and every answer to the questions to which objections had been made and overruled, and that motion was denied. As the general course of the inquiry had been competent, we do not think that the court was called upon by that general motion at the close of the direct examination to go back and consider all the testimony of the witness and recall this particular improper answer and exclude it, but appellant should have made a special motion as to this particular answer. While there were some other questions and answers where appellant’s objections might have been properly sustained, yet appellant was not harmed by the rulings. Appellant complains of the first instruction given at the request of appellee. This instruction was the one approved in Klofski v. Railroad Supply Co., supra, hereinbefore set out, save for a change in the name of the servant and other slight verbal alterations.

It is contended that the damages are excessive. The rupture or hernia was six inches in length in the right groin and two or three inches wide. The physician who testified for appellee pronounced it a large hernia and a serious injury. He also testified that he found upon appellee varicose veins in the right leg and a thrombus or blood clot on the right leg about five inches below the knee joint, and that the varicose veins, the thrombus and the hernia could have been caused by traumatism or by falling upon the end of iron tongs; that in his present condition appellee cannot do any heavy manual labor; that he must wear a truss and a bandage or elastic stocking; that he will never be able to do heavy manual labor again without a good deal of operating; that he would require an operation to cure the hernia and another to cure the varicose veins and that such operations would be attended with some danger and that even then the conditions might return. Appellee testified that none of these conditions existed prior to this accident, but that he was entirely well prior thereto. He was 49 years old, had served in the Austrian army, had worked for appellant off and on about seven years, and was earning from $1.90 to $2.10 per day and $1.90 when piling plates. He has to have his foot held up by a strap at night in order to sleep. Appellant’s surgeon testified that appellee did not complain of the hernia when he first visited appellee; and that upon an examination of the hernia he believed it to be an old rupture. Another surgeon for appellant who treated appellee a few days later testified to the same conclusion. They also testified that in their opinion he could be cured by an operation. Appellant’s surgeon who first treated appellee, testified that he examined appellee over a year later and found another hernia on the left side and therefrom concluded that he had a lax abdominal wall. Two surgeons examined appellee after that evidence was given and testified that they found no hernia on the left side and no indications that there had ever been a hernia on the left side. It must be assumed that the jury found that this was not an old hernia, but that it was caused by falling upon the tongs at the time in question. We conclude from the proof that the injury can be cured or greatly relieved by an operation, and that appellant offered and intended to have such an operation performed, and that appellee refused to permit it to be done. Upon a review of the entire proof we conclude that we ought not to permit the judgment to stand for the full amount. This opinion will be lodged with the clerk and counsel notified, and if within ten days appellee remits $2,000 of the judgment, the judgment will be affirmed in the sum of $5,250 at the costs of appellee; otherwise, it will be reversed and remanded for a new trial.

A remittitur having been filed herein in the sum of $2,000 the judgment is therefore affirmed in the sum of $5,250 at the costs of appellee.

Affirmed on remittitur.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    Mueller Lumber Company, Appellee, v. Paul M. Bollinger, Appellant.
    Gen. No. 5438.
    1. Mechanic’s liens—when prima facie proof of delivery made. Held, that the evidence recited in the opinion in this case was sufficient to establish prima facie that delivery of the lumber in question was made on the dates claimed.
    2. Mechanic’s liens—when notice served by subcontractor in apt time. Notice of lien is in apt time if served sixty days after the last delivery of the lumber claimed for.
    3. Mechanic’s liens—when payment of preferred claims cannot defeat subcontractor. Payments made to a contractor and laborers, etc., are not so made as to enable their successful interposition against the claim of a subcontractor if the owner had not required of the contractor the statement required by section 5 of the act.
    4. Mechanic’s liens—against whom decree may run. A decree in rem against an owner is proper without any decree being required against the contractor who was served by publication and did not appear.
    Mechanic’s lien. Appeal from the Circuit Court of Rock Island county; the Hon. Prank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    John Looney, for appellant.
    J. T. & S. R. Kenworthy, for appellee; Alfred Mueller and Clarence A. Ludolph, of counsel.
   Mr. Justice Dibell

delivered the opinion of the court.

On March 20, 1908, Paul M. Bollinger, the owner of certain premises in the city of Rock Island, entered into a contract with W. H. Mockabee, a contractor and builder, by which Mockabee agreed to build for Bollinger on said premises a store building according to certain plans and specifications and “to find, provide and furnish such materials of such kinds and qualities and descriptions as shall be fit, proper and sufficient for completing and finishing said building,” and to move a cottage on the lot and to improve a barn thereon, for $4,018.50. It was agreed that 85% of the material and labor put into said improvement should be paid for every two weeks and the balance upon completion of the contract. Mockabee began the work. The Mueller Lumber Company is a dealer in lumber and building materials, Having a branch establishment in Rock Island. Mockabee, after entering upon this contract, came to said company with one estimate for rough lumber and another for mill work, and the company agreed to furnish the material described in said estimates for certain stated sums. Afterwards certain items were taken off from the list for rough lumber, and the total of the two estimates was reduced to $678.48. Mockabee ordered said material from the company at these figures, and gave an order requesting Bollinger to pay the company that amount, and the order was presented to Bollinger by the company, and he said he would accept it when the material was delivered. The lumber company claims that it delivered all said lumber and various other items of lumber ordered by Mockabee during the progress of the building. About June 4, 1908, Mockabee abandoned the building and left the country. Bollinger then proceeded to complete the building himself under one F. A. Fredericks, whom he employed as his foreman and authorized to purchase the materials needed to complete the building. The company claims that thereafter Bollinger, through Fredericks,, ordered and it delivered certain additional materials for the completion of the building. Thereafter the company filed this bill for a mechanic’s lien. The bill was answered, the cause was tried and the company had a lien for $1,104.81, for the materials furnished Mockabee and interest thereon, and also for $113.74 for materials furnished Bollinger and interest thereon, making a total of $1,218.65 for which the lumber company was given a lien on the premises. This is an appeal by Bollinger from that decree. Appellant contends (1) that there is no sufficient proof that appellee delivered this lumber and material; (2) that notice of lien was not served within the time fixed by statute; (3) that appellant exhausted the contract price in paying preferred claims for labor and in completing the building, and therefore is not hound to appellee; and (4) that the decree is erroneous because it does not contain a judgment against Mockahee.

Appellee kept a record of its deliveries of lumber and material in this manner: It prepared in its office duplicate loading slips for a load of lumber, one a carbon copy of the other. Each slip described the various items to he put into a load of lumber. The slips were given to the yard man and he loaded a wagon with the material designated on the slip and handed the duplicate slip to the driver, who was to deliver it. The driver took the load to the building designated on the slip and there unloaded the lumber on the premises where the building was being erected. He then took the slip to the contractor who was erecting the building or to his foreman, and the contractor or foreman receipted for the load on the slip. The slip was then returned by the driver to appellee’s office. The-yard man had also returned the original slip. The two slips were preserved together and were used in making up the hooks of account of appellee. The slips for the delivery of all this lumber were produced in evidence. Most of them had thereon the receipt of Mockahee or his foreman. Most of the drivers who delivered the loads were produced as witnesses and testified in general to 'the delivery of numerous loads at this building. Some of the drivers identified the slips precisely. In certain cases the load was delivered at the end of the day or when there was no one at the building to receipt for the same, and where the slip was not receipted appellee sent two employes to the premises to check up the lumber so delivered, and these employes testified to their doing this. In one case where there was no one to receipt for the load it was not so checked up, but the driver testified positively to the delivery of the load described in the slip. The loads delivered after Moekabee abandoned the contract were receipted for by Fredericks. In certain cases the driver was dead or could not be found, and for most of these loads the receipt of Moekabee on the slip was identified as genuine. In various ways these loads of lumber were traced to this building, and we do not doubt that when all the proof is considered it was competent and sufficient to make a prima facie case that the lumber described on the slips was delivered on the dates stated. In addition to this, appellee caused a contractor and builder to go upon the premises and check up the lumber, and he found in the building the amount of lumber and the character of lumber which appellee claimed to have furnished. There was no proof that any other person, firm or corporation furnished any of this lumber or material. It would unduly extend this opinion to set out in full the evidence as to each separate load of lumber, but it is sufficient to say that there is proof that all the lumber allowed in the decree was delivered by appellee at the building.

The notices for lien were served on July 25, 1908. The last load delivered when Moekabee was in charge was delivered on May 29, 1908, and the last delivery to Fredericks for appellant was delivered on June 19, 1908. The notice was therefore in apt time; and we also hold that it was sufficient to serve the notice sixty days after the last delivery to Fredericks.

Section 21 of the act of 1903 in relation to mechanic’s liens contains the following: “In no case, except as hereinafter provided, shall the owner be compelled to pay a greater sum for or on account of the completion of such house, building or other improvements than the price or sum stipulated in said original contract or agreement, unless payment be made to the contractor or to his order in violation of the rights and interests of the persons intended to be benefited by this act.” Appellant contends that he paid for labor, which is preferred, and in finishing the work after Mockabee left, more than the contract price and therefore, under the language just quoted, he cannot be compelled to pay appellee.' This position ignores other sections of the act. Section 5 enacts that the owner before paying the contractor or his order any money shall require from the contractor a statement in writing under oath of the names of all parties furnishing materials and labor and of the amounts due or to become due to each. Section 32 provides that no payment to the contractor or his order shall be regarded as rightfully made as against the subcontractor, laborer, or other party furnishing labor or materials, if such payment was made by the owner without exercising and enforcing the rights and powers conferred upon him in sections 5 and 32 of the act. Appellant made these payments to Mockabee and to the laborers without requiring or obtaining such a statement from Mockabee. Therefore all moneys so paid by appellant were paid in violation of the rights of appellee, and are not to be considered as rightfully made. It may well be doubted whether in other respects appellant has made such proof as would entitle bim to be credited with the moneys so paid or with the moneys which he alleges he paid to complete the building. But, with the payments to Mockabee and to the laborers .rejected as not rightfully made because of the statute above referred to, the decree in this case is within the contract price.

Appellant contends that under section 28 of the lien law the judgment must be against both the owner and the contractor or against neither, and that, becanse there is no judgment here against Mockabee, the decree cannot stand. Mockabee was a defendant and was served by publication, and did not appear. Nq personal decree could be entered against him. No personal decree was entered against appellant. The decree was only in rem for the sale of the premises unless appellant should pay the amount found due within thirty days. We are of the opinion that the provision relied upon does not apply to this case.

The decree is therefore affirmed.

Affirmed.


text:
    First National Bank of Manlius, Appellee, v. John J. Garland, Appellant.
    Gen. No. 5445.
    1. Appeals and errors—what not considered on review. The contents of a plea not abstracted are not before the Appellate Court on review.
    2. Pleading—when plea of want of consideration will not avail. A plea of mere want of consideration is not good in a suit by an endorsee before maturity against the maker.
    3. Pleading—when charge of fraud insufficient. A general charge that a party acted fraudulently or was guilty of fraud is a statement of a conclusion and is not good pleading.
    4. Negotiable instruments—what fraud constitutes defense to action by endorsee before maturity. The fraud and circumvention which may be pleaded in bar to an action on a note does not mean fraud in the quality, quantity, value or character of the consideration, but such a trick or device as induces the giving of one character of instrument under the belief that it is of a different character, an example of which would be the giving of a note under the belief that it is a receipt. A misrepresentation of the legal effect of the instrument does not constitute such fraud and circumvention. If the maker can read he is bound to do so, and to judge of the legal import of the instrument.
    5. Negotiable instruments—what does not affect negotiability

      of promissory note. An option to declare the principal due upon default in payment of interest does not affect the negotiable character of the instrument.
    Assumpsit. Appeal from the Circuit Court of Lee county; the Hon. R. S. Farband, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    John E. Erwin, for appellant.
    Brooks & Brooks, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

In this action of assumpsit by the bank against Garland, plaintiff filed a special count and the common counts. The special count alleged that defendant on July 15, 1909, made his promissory note and delivered the same to D. Burkey, and thereby promised to pay to the order of said Burkey, ninety days after said date, $500 for value received with interest, etc., and that thereupon at said time and place Burkey assigned said note by endorsement thereof under his hand to the plaintiff, whereby defendant became liable to pay plaintiff the amount of said note, and being so liable promised to pay the same. Defendant filed pleas of non assumpsit, want of consideration, and that the execution of the note was obtained by fraud and circumvention. Plaintiff demurred to the second and third pleas and said demurrer was sustained and defendant elected to stand by said pleas. Thereafter there was a jury trial and a verdict and a judgment for plaintiff, from which defendant appeals.

The plea of want of consideration is not abstracted and therefore it is not before us for consideration; but obviously a plea of mere want of consideration would not be good in a suit by endorsee before maturity against maker. The plea of fraud and circumvention makes frequent use of the word “fraudulent” but a general charge that a party acted fraudulently or was guilty of fraud is a statement of a conclusion and is not good pleading. People v. Henry, 236 Ill. 124, and cases there cited. The fraud and circumvention which may be pleaded in bar to an action on a note does not mean fraud in the quality, quantity, value or character of the consideration, but such a trick or device as induces the giving of one character of instrument under the belief that it is of a different character, an example of which would be the giving of a note under the belief that it is a receipt. A misrepresentation of the legal effect of the instrument does not constitute such fraud and circumvention. If the maker can read he is bound to do so, and to judge of the legal import of the instrument. Latham v. Smith, 45 Ill. 25. The plea in question averred that this note was signed in connection with a contract for the exchange of certain lands owned or controlled by defendant for certain lands owned or controlled by Burkey and another; that Burkey was unable to read said instruments which he then executed, by reason of the condition of his eyes; that his wife was present and he had her read the contract to him; that the contract contained the words “when deal is closed five hundred dollar note is to be returned;” that defendant then called on Burkey to investigate the note and that Bur-key arranged the note and contract for investigation by defendant’s wife, and stated that he would hold the note in accordance with the terms thereof; that it contained said condition, and that by reason thereof it could not be negotiated or assigned, and would not be if it could; and that he signed believing that the note contained such a condition. Defendant had his wife present to read for him, and there is no averment that she did not read the note, and he is bound by her knowledge of what it contained. Moreover, the plea does not allege that the deal was closed; and, construing the plea most strongly against the pleader, the meaning is that defendant signed this note as a promise to pay the sum therein named as liquidated damages if defendant should fail to perform his contract, and that he did fail to perform his contract. Therefore the facts stated and the presumptions from the facts omitted show that defendant has no defense against the note, if Burkey had sued. We are of opinion the demurrer was properly sustained.

At the trial defendant offered the contract in evidence and the court sustained an objection thereto. The contract was not between plaintiff and defendant; and plaintiff, being presumed to be a purchaser before maturity without notice, is not subject to the contract, and there was no issue formed which made the contract material. Appellant contends that the instrument sued upon was not a promissory note, because, after the words which constitute the usual form of a promissory note, it also contains the following:

“If default shall be made in the payment of interest, or in any of the conditions or agreements of the mortgage collateral thereto, the whole amount of the principal sum shall, at the option of the mortgagee or his heirs or assigns, become due and payable without any notice whatever, (notice of such option being hereby waived.) Such option to be made at any time after default, before the principal falls due, according to the terms of this note. This note, secured by a real estate mortgage of even date herewith.”

These words do not affect the negotiability of the instrument under Zollman v. Jackson Savings Bank, 238 Ill. 290, and cases there cited. We find no reversible error in the record and the judgment is therefore affirmed.

Affirmed.


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    Charles Kastler, Appellee, v. William Logg, Appellant.
    Gen. No. 5446.
    1. Landlord and tenant—what tends to establish eviction. Acts by the landlord, to constitute eviction, must clearly indicate an intention on the part of the landlord that the tenant shall no longer continue to bold the premises.
    2. Landlord and tenant—what evidence tends to establish eviction. Evidence that the landlord ordered a tenant to keep off the premises and threatened to shoot him if be did not keep off, tends to establish an eviction.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Lee county; the Hon. R. S. Farband, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    John E. Erwin, for appellant.
    No appearance for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Kastler, a tenant, sued Logg, his landlord, before a justice and had a judgment for $99 and on an appeal to the Circuit Court had a verdict and judgment against Logg for $86.50 from which Logg appeals.

Appellee put in corn on a certain field owned by appellant for which appellant furnished the seed corn and each was to have one-half of the corn raised; and appellee put in certain oats on land of appellant for which appellant furnished the seed oats and appellant was to have three-fifths and appellee two-fifths of the oats raised; and appellee claims that he was to have one-half of the straw, while appellant claims that he was to have all the straw. Appellee did not harvest the corn nor receive the straw, and he claims this was because appellant ordered appellee off the premises before tbe time came for harvesting the corn and receiving the straw, and that appellant told appellee that he would shoot him if he came upon the premises again. Appellee offered proof tending to show that appellant harvested the corn and kept it. Appellant offered proof tending to show that he did not harvest any corn on this place, and that there was no corn there of any value because it was a wet season and wet land and it was not properly cultivated by appellee. Appellee also claimed that appellant requested bim to deliver milk daily to an imbecile sister of appellant, who lived in a small house near appellee, and that appellant promised appellee that he would pay him therefor, and that appellee delivered to said sister a quart of milk on each of 480 consecutive days, for which he had not been paid. There was proof of the value of the corn, straw and milk, and, at the figures proved by appellee, the claim, if valid, would considerably exceed the judgment.

Appellee testified that appellant, prior to corn-husking time, ordered him off the premises and told appellee that he would shoot him if he ever set foot on them again; that appellant had a gun and that appellee feared that apellant would shoot him, and that thereupon he went upon the premises no more. Appellant admitted a quarrel with appellee at the time mentioned, but denied that he ordered appellee to keep off or threatened to shoot him. It was for the jury to say which should be believed. Appellant contends that if he did so state, it could not justify the tenant in abandoning the premises. The rule is that acts by the landlord, to constitute eviction, must clearly indicate an intention on the part of the landlord that the tenant shall no longer continue to hold the premises. Morris v. Tillson, 81 Ill. 607. The jury were warranted in finding that appellee’s testimony, if believed by the jury, proved an eviction. The apparent preponderance of the evidence is that appellant did gather the corn. He retained all the straw. The testimony on these subjects, introduced by appellee, authorized a recovery. The contract for the milk was sworn to by appellee and denied by appellant. Its delivery was proved by several witnesses. Appellant proved that about a year after the last milk was delivered he paid appellee $1.50 and prepared a receipt that this was in full to date, and that appellee signed it. From this he argues that appellee at that time was making no claim for pay for the milk. It was shown that this $1.50 was for work appellee had done for appellant, and it was for the jury to say what was the effect of the receipt. The jury and the trial judge have found all the facts against appellant, and there is no state of the evidence presented which would warrant our disturbing that conclusion.

Appellee’s first instruction was as to the effect of the receipt as evidence of payment, and appellee’s second instruction was that on the plea of payment the burden was on the appellant to establish the payment by a preponderance of the evidence. The bill of exceptions contains the statement made by counsel for each party before the introduction of the testimony as to the cause of action and ground of defense, and appellant’s counsel then stated that it was not claimed that the receipt was given upon payment for the milk; and it is argued that therefore payment was not an issue, and these instructions should therefore not have been given. But this ignores the testimony of appellant that the receipt about a year after the delivery of the -millr covered all dealings up to that date in full, and that they settled in full up to that time. After that testimony had been introduced by appellant these instructions were proper. The first instruction for appellee improperly used the words “extra work,” but as both sides testified that all extra work had been paid for, we are of opinion that the use of these words did not harm appellant. Appellant asked an instruction that the burden of proof was on appellee and that it was for him to prove his case by a preponderance of the evidence, and that if the evidence was evenly balanced or preponderated in favor of appellant, then appellee could not recover and they should find for appellant. The court modified this by inserting the words “in the first instance” making it read that the burden of proof in the first instance was upon the appellee, etc. We do not think that appellant was prejudiced by this modification. The jury were not told that the burden shifted. In making the modification the court no doubt had in mind that while the plaintiff had the burden of proving his case, yet if appellant claimed as he testified that at the time of the receipt they settled in full and that that payment covered all dealings up to that date, the burden of proving that defense was upon him. We find no error of law in the record.

The judgment is therefore affirmed.

Affirmed.


text:
    A. K. Stearns et al., Appellees, v. City of Zion, Appellant.
    Gen. No. 5450.
    Muntcipaí corporations—when not liable for legal services. A city cannot lawfully contract to pay for legal services rendered in a suit to winch the city is not a party brought for the purpose of establishing the title to city offices.
    Assumpsit. Appeal from the Circuit Court of Lake county; the Hon. Robert W. Wright, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed March 16, 1911.
    Cooke, Pope & Pope, for appellant.
    Leslie A. Needham and E. V. Orvis, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

Steams and Field brought this suit against the city of Zion for legal services rendered by them, chiefly in two suits, one in the Circnit Court of Lake county and one in the Supreme Court of Illinois. They claimed $1,014.65 in an affidavit attached to the declaration, and on a jury trial had a verdict for the full amount claimed, from which they remitted $15, and a motion for a new trial was overruled and they had judgment for $999.65 from which the city appeals.

Many questions have been discussed. It is contended that there is no proper or sufficient or lawful record showing the employment of appellees. There is no proof that any appropriation was ever made to pay them, and it is disputed whether, under the pleadings, the appellees should have proved such an appropriation or the appellant should have proved that no such appropriation had been made. We deem it unwise to discuss these questions now, because as to them , the proof may be different upon another trial, which must follow.

Great confusion existed in the city of Zion after the municipal election of the spring of 1909. Two bodies organized as the city council after said election and sat as such in different rooms at the same time. One of these bodies had the mayor, and the other had the clerk and the record of the council proceedings. The body having the mayor, and claiming to be the true council, demanded the possession of the returns of the election in order that it might canvass and declare the vote. Stearns was present with the latter body, and claims to have been employed by it to take legal proceedings. The first of the suits in which the most of these fees were earned was a petition filed in the Circuit Court of Lake county by I. J. Thurston and five others, claiming to be residents, voters and taxpayers of said city for more than two years last prior thereto, and most of them candidates of the Republican party for the offices of aldermen, and to have been voted for and elected. The petition set up that the poll books and tally sheets were by the judges of election delivered to the city clerk; that the alleged council which had possession of the mayor convened and the clerk did not attend; that the mayor appointed a clerk pro tem; that said body appointed a committee of three to canvass the vote at the municipal election and directed the-clerk to turn over to said committee the tally sheets and poll books; that the committee demanded the tally sheets and poll books of the clerk and he refused to produce them, whereby the city council was prevented from canvassing the vote. The petition prayed a writ of mmidamus, commanding the city clerk to produce the poll books, tally sheets and ballots to said city council.

This was not a litigation instituted by the city through its city council, but a litigation instituted by individuals who claimed to have been elected to certain offices, and they sought the aid of the court to compel the production of the documents which would show the canvassing committee that they were so elected. Several of these men were holding over after an expired previous term. We are of opinion that the city could not lawfully contract to pay for legal services rendered in a suit to which the city was not a party, brought for the purpose of establishing the title of the petitioners to certain city offices to which they claimed to have been elected. If the city had power to have counsel to defend the city clerk in his official capacity, these attorneys were not hired for that purpose, but, on the contrary, to conduct a litigation against the city clerk in behalf of individuals. This lack of authority to make such a contract is announced in City of Chicago v. Williams, 182 Ill. 135. Whether these observations also apply to the suit in the Supreme Court, where a part of the fees here sued for are alleged to have been earned, will doubtless more fully appear upon another trial. More than one-half of the snm here recovered was for services rendered in the mandamus case in the Circuit Court of Lake county, and the record does not show a case authorizing the city to contract for these services.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    Lucy H. Mallory et al., Defendants in Error, v. Frank Mallory, Plaintiff in Error.
    Gen. No. 5390.
    1. Writ oe eeeob—practice as to suing out after death of one party. The practice pursued in this case is approved upon the authority of Chatterton v. Chatterton, 231 Ill. 449.
    2. Decrees—what essential to sustain. Where a decree in equity grants affirmative relief the decree will not he sustained on appeal or error unless the evidence justifying the decree is preserved by a certificate of evidence, or the decree is based upon a verdict of a jury (where the jury was a matter of right), or is based upon a report of sufficient facts by a master in chancery (where the master may hear and report proofs and findings), or the decree finds specific facts proved sufficient to support the decree.
    3. Appeais and ebeoes—how pleas filed on review tested. Assignments of error upon the record whether such record he at law or in equity is a declaration as at common law; therefore, pleas filed on review are to he tested for legal sufficiency by demurring thereto.
    4. Divorce—when consent decree based upon money consideration not set aside. If a consent decree of divorce has been entered in favor of a party subsequently dying, such decree will not he set aside at the instance of the party receiving the consideration in order merely to enable such party to obtain a share in the estate of the deceased divorcee.
    Error to the Circuit Court of Grundy county; the Hon. S. C. Stough, Judge, presiding. Heard in this court at the October term, 1910. Certiorari denied by Supreme Court (making opinion final).
    Affirmed
    Opinion filed April 6, 1911.

      Cornelius Reardon, for plaintiff in error; H. B. Smith, of counsel.
    Charles G. Sachse, Hiram T. Gilbert and B. F. Lincoln, for defendants in error.
   Mr. Justice Dibell

delivered the opinion of the court.

On August 7, 1906, Lucy Holtzman Mallory filed in the Circuit Court of Grundy county a bill for divorce against her husband, Frank Mallory, in which she alleged that they were married on January 19,1904, and that on August 3, 1904, her husband wilfully deserted her without any reasonable cause and continued said desertion more than two years and until the filing of the bill, and that, upon obtaining a decree of divorce, she wished to resume the name of her first husband, Holtzman. Summons was served upon the defendant in Vermilion county. He answered, denying the desertion and alleging that complainant drove him away from her home in Morris and deserted him on August 3, 1904. There was a jury trial on the demand of the defendant and there was a verdict that he was not guilty of the charge of wilful desertion for two years next prior to the filing of the bill. Complainant moved for a new trial and the court entered a decree finding that the verdict was sustained by the evidence and that defendant did not wilfully desert complainant on August 3, 1904, without reasonable cause and persist in said desertion for two years before the filing of the bill, and the court denied the motion for a new trial and dismissed the bill for want of equity, and complainant prayed and was allowed an appeal therefrom. This decree seems to have been entered on April 1, 1907, at the March term of court. On April 13, at the same term, the parties came by their solicitors and entered a joint motion to vacate the orders for an appeal, and said motion was granted. Said solicitors then entered a motion to vacate the decree and to set aside the verdict of the jury, and said motion was granted and the conrt awarded a new trial. Thereupon defendant by his solicitor withdrew his answer and his appearance, by leave of court. Defendant was then ruled to answer and was defaulted for want of answer, and the bill was taken as confessed by defendant. The court then heard the evidence and entered a decree which recited that the cause came on to be heard in open court upon the bill of complaint taken as confessed and upon evidence heard in open court, and that the court found that the matters set forth in the bill of complaint were substantially true as therein alleged and that the equities were with the complainant, and the court adjudged that the marriage be dissolved, that each party be barred from all claim of dower in the real estate of the other and from all right, title and interest in and to the property of the other as fully and completely as if the said parties had never been married, and that complainant be restored to the name of Lucy Holtzman, and that she pay the costs. On July 14, 1910, Cornelius Reardon filed an affidavit in this court that he had been engaged by said Frank Mallory to prosecute a writ of error from said decree. Affiant therein stated that Lucy Holtzman Mallory died on or about November 11, 1909, at Morris leaving a will which was admitted to probate in Grundy county on December 6, 1909; that Carl Robert Fox was named as executor in said will and qualified and is acting as such; that by said will said testatrix gave bequests to certain individuals named, amounting to $12,000, and devised and bequeathed the rest and residue of her estate to said Carl Robert Fox, and that the persons named are the only ones interested in said estate. Thereupon a writ of error was sued out, naming said interested parties as defendants in error. The right to such a writ of error and the correctness of this method of procedure are held in Chatterton v. Chatterton, 231 Ill. 449. The question whether the writ of error could be sued out after three years is not raised by plea, and therefore cannot be considered by us. Peterson v. Manhattan Life Ins. Co., 244 Ill. 329.

Although some earlier decisions did not closely adhere to the rule, it is now settled law in this state that where a decree in equity grants affirmative relief, the decree will not be sustained on appeal or error, unless the evidence justifying the decree is preserved by a certificate of evidence, or the decree is based upon a verdict of a jury (where the jury was a matter of right), or is based upon a report of sufficient facts by a master in chancery (where the master may hear and report proofs and findings), or the decree finds specific facts proved sufficient to support the decree. Village of Harlem v. Suburban R. R. Co., 202 Ill. 301; Torsell v. Eiffert, 207 Ill. 621; Berg v. Berg, 223 Ill. 209; Patterson v. Northern Trust Co., 230 Ill. 334; Ohman v. Ohman, 233 Ill. 632; Grays Lake M. E. Church v. Metcalf, 245 Ill. 54; Trenchard v. Trenchard, 245 Ill. 313. The facts upon which the decree in this case was based were not preserved in this record in any of the ways above indicated, and therefore the decree cannot be sustained, if plaintiff in error is entitled to prosecute this writ of error.

Carl Eobert Pox filed five pleas in his own right, numbered from one to five, respectively, and also five pleas in his right as executor, numbered from one to five, respectively. Each set of two pleas bearing the same number are substantially of the same tenor. Plaintiff in error demurred to these pleas and the cause has been submitted for decision upon demurrer to the pleas. The pleas are not, as plaintiff in error seems to suppose, pleas in chancery, for if so a demurrer would not lie to them. The assignment of errors upon the record, whether said record be at law or in equity, is a declaration as at common law. The pleas also are not pleas of a release of errors but pleas of matter in pais, in bar of tbe writ of error. Being pleas at law they are subject to be tested by demurrer. Austin v. Bainter, 40 Ill. 82; Corwin v. Shoup, 76 Ill. 246; Mahony v. Mahony, 139 Ill. 14; Beardsley v. Smith, 139 Ill. 290; Schaeffer v. Ardery, 238 Ill. 557; Peterson v. Manhattan Life Ins. Co., supra.

The third plea avers that before the entry of the decree upon which errors are here assigned, to wit: on April 13, 1907, it was agreed between Mrs. Mallory and plaintiff in error that plaintiff in error should consent that the court vacate the decree previously entered in said cause dismissing the bill of complaint for want of equity, and set aside the verdict of the jury theretofore rendered in said cause and grant Mrs. Mallory a new trial and that plaintiff in error shonld then withdraw his answer and appearance and should suffer a default and shonld permit an order to be entered taking the bill of complaint as confessed by him, and should not thereafter contest the entry by the conrt of a decree dissolving the marriage between Mrs. Mallory and plaintiff in error; and that, in case the court should enter in said cause a decree dissolving said marriage, said Lney Holtzman Mallory should pay to plaintiff in error and plaintiff in error shonld accept from her $8,000 as compensation to plaintiff in error for his share of the estate of said Lucy Holtzman Mallory; and the plea further averred that, after the entry of said decree and in pursuance of said agreement, said Lucy Holtzman Mallory paid to plaintiff in error and said plaintiff in error accepted from her said snm of $8,000 as agreed upon. The fifth plea averred that the decree upon which errors are assigned was entered with the consent of plaintiff in error, which consent he gave in pursuance of an agreement between said Lucy Holtzman Mallory and plaintiff in error that in consideration of plaintiff in error giving such consent, then upon the entry of a decree in said cause dissolving said marriage, Lucy Holtzman Mallory should pay to plaintiff in error and plaintiff in error should accept from her $8,000 in full payment of his right, title and interest in and to her estate, both real and personal. The plea further averred that after the entry of the decree upon which errors are assigned, and on, to wit: April 13, 1907, Lucy Holtzman Mallory paid to plaintiff in error and he accepted from her $8,000 so agreed to be paid as aforesaid, and he then executed and delivered to her the following instrument in writing:

“Deceived of Lucy Holtzman Mallory, in full payment of all my right, title and interest in and to her estate, both real and personal, and in consideration of granting her an absolute divorce, the sum of Eight Thousand ($8,000) Dollars.
Dated at Morris, Illinois, this 13th day of April A. D. 1907.
Frank Mallory, (Seal)
Attest: J. W. Bausch.
Luella M. Carlson.”
The plea further averred that on or about April 17, 1908, said Lucy Holtzman Mallory was legally married to the defendant in error, Carl Eobert Fox, and thereafter died testate on or about November 11, 1909,' and by her last will devised and bequeathed to said Carl Eobert Fox all the residue of her estate remaining after payment of her debts and expenses of administration and certain legacies amounting to $12,000 and appointed said Carl Eobert Fox the executor of said will, and that on December 6, 1909, said will was admitted to probate in Grundy county and letters testamentary thereunder were duly issued to said Carl Eobert Fox. The fourth plea was much like the fifth, except that it omitted the allegations concerning the will of Lucy Holtzman Mallory, and that it averred that shortly after the marriage of said Lucy Holtzman Mallory and said Carl Eobert Fox, said plaintiff in error acquired full knowledge of said marriage and for more, than one year prior to the death of said Lucy Holtzman Mallory and down to her death plaintiff in error acquiesced in said marriage.

If this were a mere matter of contract, the payment of a money consideration for a consent to a decree would be valid. The public, however, has an interest in the proper maintenance of the marriage relation, and public policy forbids that the parties shall agree to its dissolution or shall enter into any collusion to bring about that result. Danforth v. Danforth, 105 Ill. 603. But this writ of error is not sued out to restore the marriage relation. Death has prevented that. The sole reason for entertaining this writ of error after the death, of Mrs. Mallory is in order that plaintiff in error may be restored to his statutory rights in the property left by her. Danforth v. Danforth, 111 Ill. 236; Chatterton v. Chatterton, supra. These pleas show that after the entry of the decree of divorce here sought to be reviewed, Mrs. Mallory paid plaintiff in error and he received from her the sum of $8,000 in full payment for all his right, title and interest in her estate, both real and personal, and that plaintiff in error then executed and delivered to her an instrument under seal to that effect. We are of opinion that it would be inequitable and unjust to permit plaintiff in error to now prosecute this writ of error to a reversal of the decree for the sole .purpose of permitting him to procure a share of that estate. While he could not lawfully consent to a divorce he could lawfully contract to receive a sum of money in full satisfaction of all his right, title and interest in his wife’s property; and if there is any iniquity in his so agreeing to a division of his wife’s property, there is no public policy violated by holding him to the property bargain which he made and by which he so largely benefited. The principles which should now bar him from reversing this decree for the sole purpose of obtaining another portion of his former wife’s estate are stated and illustrated in Whittaker v. Whittaker, 151 Ill. 266; Loud v. Loud, 129 Mass. 14; In re Brigbam, 176 Mass. 223; Mohler v. Shank’s Estate, 93 la. 273; Marvin v. Foster, 61 Minn. 154; and in the text books on Divorce. The cases cited differ from this on the facts, but much of the reasoning’ there adopted is pertinent here. Plaintiff in error, pursuant to a contract of his own making, has had his share of his former wife’s estate since the decree was entered, and the court should not aid him to obtain another portion. The demurrer confesses the truth of the pleas. We are of opinion that those which we have detailed establish a bar to this writ of error, and it is not necessary to discuss the first and second pleas.

The decree is affirmed.

Affirmed.


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    The People, ex rel. Adam Theis, Appellee, v. Fred Michaels et al., Appellants.
    Gen. No. 5406.
    1. Elections—what does not justify refusal of officers to perform ministerial duties. Officers who have called and held an election may not refuse to perform their ministerial duties leading to the declaration of the result because of any irregularities which may have intervened, either as the result of their own errors or otherwise.
    2. Elections—what does not vitiate result. Irregularities in conducting an election and counting the votes, not proceeding from any wrongful intent and which deprive no legal voter of his vote and do not change the result, will not vitiate the election.
    3. Elections—effect of failure to keep polls open during legal hours. Held, that a failure to keep polls open during the legal hours did not vitiate the result.
    4. Mandamus—what not misjoinder. In mandamus to compel the declaration of the result of an election it is not a misjoinder to name as respondents officials willing and unwilling to act.
    Mandamus. Appeal from the Circuit Court of Kankakee county; the Hon. Chaeles B. Campbell, Judge presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    Opinion modified and rehearing denied April 21, 1911.

      Hunter & Schneider, for appellants.
    Eben B. Gower and J. Bert. Miller, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Adam Theis filed in the Circuit Court of Kankakee county a petition for a mandamus against the judges and clerk of a' school election held in township 30 North, range 14 east, on April 9,1910, and against the trustees of schools of said township. One defendant was defaulted and the others filed separate demurrers, which were overruled, and said demurrants elected to stand by their demurrers and a peremptory mandamus was awarded. The respondents who demurred have appealed.

The petition shows that said township was and for many years had been a township for school purposes under the school law; that at said time Frank Tanner, Fred Michaels and George Keller were trustees of schools of said township, duly elected, qualified and acting; that Samuel Devere was and for many years had been the treasurer of said township; that said treasurer gave notice of an election for the election of one trustee in said township by posting notices which announced that an election to elect one school trustee for the full term would he held at the school house in District 122 in said township on April 9,1910, and that the polls would open at 2 o’clock p. m. and close at 4 p. m. of said day; that pursuant to said notice, an election was held at the time and place designated, at which time and place Theis and Tanner were opposing candidates for the office of school trustees; and there were full averments that Theis had the qualifications which entitled him to hold the office if elected. The petition alleged that when the polls were open Keller and Michaels were present to act as judges; that Tanner refused to act as a judge of the election because he was a candidate to succeed himself; that Keller suggested the selection of another judge to act in the place of Tanner, but Michaels and the clerk of the élection, Devere, determined that it was unnecessary and the election proceeded with Kéíler and Michaels as judges and with Devere as clerk; that Theis and Tanner each received thirty-six votes; that Theis requested the judges to cast lots as provided by statute and determine the election; that Keller was willing to do so but Michaels refused, and the judges adjourned to the next Monday, April 11, to obtain legal advice, and afterwards Keller requested Michaels to meet with him and cast the lots and Michaels refused to do so; and that said judges of election have failed and refused to cast lots between Theis and Tanner; that Theis had a lawful right to have it determined by said judges of election by lot on the day of election whether he was entitled to the office of school trustee, and, if successful, to have a return of the result of the election made to the board of trustees of said township and to have said board canvass said return, and that this was not done. The petition further alleged that for more than thirty years the election of trustees in said township had been held each year in said school house in said district 122; that it had been the custom in said township for many years to hold the election for school trustees from 2 o’clock p. m. to 4 o’clock p. m. and for the town treasurer to post the notices; and that Tanner was present at that election and participated therein, as also did Theis. The prayer of the petition was that Michaels and Keller, the judges, forthwith adopt some method for drawing lots to determine whether Theis or Tanner should hold the office of school trustee of said township for the period of three years next ensuing, and, after that was done, commanding Michaels and Keller as judges and Devere as clerk of said election to return the ballots and poll books with a certificate of the result of the election to the township treasurer, and commanding Michaels, Keller and Tanner, trustee» of schools of said township, to then meet and canvass said returns, and to file the proper certificate with the county superintendent of schools. The judgment ordered Michaels and Keller, as judges of said election, to forthwith cast said lot, and adjudged that said judges and the clerk ought to return the ballots and poll books and certificate showing the result of the election to the township treasurer, and that thereupon Michaels, Keller and Tanner, trustees of schools of said township, ought to meet and canvass said returns and make out and file with the county superintendent of schools a proper certificate. Appellants contend that the election was void because not called for the proper hours, and because three judges did not participate therein; and that the judges and clerk of the election and the trustees of schools cannot be joined as defendants, but that (in effect) there should have been three successive suits in mandamus; first, one against the judges to compel them to cast the lot; then, if the judges and clerk did not make the proper returns, another mandamus to compel them to make such returns; and then another against the school trustees, if they failed to canvass the vote and make the proper certificate.

We are of opinion that officers who have called and held an election may not refuse to perform their ministerial duties leading to a declaration of the result because of any irregularities which may have intervened, either as the result of their own errors or otherwise. 26 Cyc. 275. It is the settled law of this state that irregularities in conducting an election and counting the votes, not proceeding from any wrongful intent and which deprive no legal voter of his vote and do not change the result, will not vitiate the election. Behrensmeyer v. Kreitz, 135 Ill. 591; Ackerman v. Haenck, 147 Ill. 514; Rexroth v. Schein, 206 Ill. 80, 98. Section 26 of the present school law enacts that the time and manner of opening and closing the election shall be the same as prescribed by the general election laws defining the manner of electing magistrates and constables. The Australian ballot law does not apply to school elections, unless they are held at the same time as the election of township officers. People v. Brown, 189 Ill. 619. Section 48 of the general election law provides that the polls shall be opened at 8 o ’clock a. m. and continue open till 7 o’clock p. m. but that if the judges do not attend at the hour of 8 o’clock a. m. the polls at 2 o’clock p. m. In Cleland v. Porter, 74 closing the same shall have arrived. Section 13 of Article 3 of the School Law, permits (if so specified in the notice) that the election may be opened at any hour between 8 o’clock a. m. and one o’clock p. m. and may be closed at four o’clock p. m. We are not required to decide which act is applicable but hold it was legal to open the polls at 2 o’clock p. m. In Clelland v. Porter, 74 Ill. 76, relying on other cases there cited, it was held that the closing of the polls more than an hour before the time fixed by law when they should be closed did not authorize the rejection of the vote, where it did not appear that any voter offered to vote after the polls were closed and before the lawful time for closing them, or was prevented from voting by reason thereof. A similar principle was applied in People v. Brown, supra. We are of opinion that petitioner was not required to allege that no person appeared and offered to vote after the polls were closed and before the time fixed by law for closing the same, but that that was0a matter to be set up in defense, if indeed these election officers could set up their own irregularity as an excuse for failing to complete the performance of their duties pertaining to the election.

Section 27 of the present school law requires the trustees to act as judges of the election, and provides that if any of them fail to attend, the qualified voters present shall fill the vacancy; and these officers were mistaken in holding that it was not necessary to fill the vacancy. But the two did act and did hold the election, and the voters ought not to be deprived of having th<* result declared because the judges present made a mistake. Moreover, the ninth paragraph of section one of the act concerning the construction of statutes makes the following provision: “Words purporting to give a joint authority to three or more public officers or other persons shall be construed as giving such authority to a majority of such officers or persons.” Mandamus is a proper remedy to compel the proper officer to cast lots in the case of a tie. People v. Crabb, 156 Ill. 155.


author: Mr. Justice Thompson

text:
    John J. Armstrong, Appellant, v. The School Directors of District No. 128, Lee County, Appellees.
    Gen. No. 5317.

      Schools—when district not hound. Casual conversations participated in by members of the board of education do not bind a school district; in order to bind the school district the directors must act either at a regular or special meeting.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Lee county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Rehearing denied April 6, 1911.
    John E. Erwin and Brooks & Brooks, for appellant.
    C. E. Gardner, Henry S. Dixon and George C. Dixon, for appellees.
   Mr. Justice Thompson

delivered the opinion of the court.

Appellant had been a teacher for School District No. 128, in Lee county, for the school year ending June 5, 1909, at $87.50 per month. On May 6, 1909, a regular meeting of the school board was held for the purpose of engaging teachers for the ensuing school year at which all the school directors were present. The school directors offered the teachers all of whom were present, positions for the following year at the same salaries they were then receiving. Appellant did not accept the proposition of the directors but ashed $90 per month. The directors refused to accede to the request of appellant but gave him until the following Saturday to accept the offer of $87.50. Appellant did not accept the offer by Saturday but went to the directors at their residences endeavoring to get them separately to agree to pay him $90. On May 22nd, appellant met one of the directors and said he had decided to accept the offer of the hoard, and went with that director to the residence of another director where the first director said to the other that appellant had accepted their proposition, and the second replied, “that settles it.” When the time to open school arrived, appellant offered his services, but the board had employed another teacher. After the expiration of the first month appellant brought suit to recover the salary for that month. Appellant called the secretary of the school board as a witness, and he testified that there was no meeting of the board of school directors on May 22nd. Appellant relies on his conversation with the two directors at the time he met one of them and went with him to the residence of another director to establish a contract of hiring. In the Circuit Court at the close of plaintiff’s evidence a verdict was directed in favor of the appellee.

Section 111 of the school law provides that “The directors shall hold regular meetings at such times as they may designate, and special meetings at the call of the president or any two members. No official business shall be transacted by the directors except at a regular or special meeting. Two directors shall constitute a quorum for the transaction of business.” The evidence shows that the conversation between the two directors on May 22nd was at a casual meeting; and that it was not a regular meeting and no special meeting had been called. The third director was temporarily out of the state at that time, but that did not dispense with the requirement that a meeting should be called. There having been no meeting called, whatever was done by the two directors at a casual interview without previous arrangement, was unofficial and not binding on the district. School Directors v. Jennings, 10 Ill. App. 643. The court properly directed a verdict for appellee; and the judgment is affirmed.

Affirmed.


text:
    Melchior Sniveley Stoner, Appellee, v. Yeomen of America, Appellant.
    Gen. No. 5320.
    Featebnal benefit societies—contract contraed, partial indemnity Toeing claimed. Partial indemnity being provided for in event of “tbe loss of a band at or above tbe wrist,” recovery will not be sustained where the injury consisted of only the partial loss of a hand notwithstanding the injury may be severe.
    Assumpsit. Appeal from the Circuit Court of Lee county; the Hon. Richaed S. Faeeand, Judge, presiding. Heard in this court at the April term, 1910.
    .Reversed.
    Opinion filed October 18, 1910.
    Rehearing denied April 6, 1911.
    Fred B. Silsbee, Henry S. Dixon and George C. Dixon, for appellant.
    Brooks & Brooks and John P. Devine, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an appeal from a judgment for $395.81 in favor of appellee in a suit brought by him against appellant on an accident insurance policy, to recover for the alleged loss of a hand.

Appellant is a fraternal benefit society. Appellee, the insured, sustained a personal injury while a member of appellant in good standing. The injury consisted in the loss of the third and little fingers and the forcing into the palm of the hand the knuckle joint of the middle finger, leaving the thumb uninjured and the first finger slightly stiffened so that it would only close about two thirds. Appellee was able to and did work at his trade, that of a carpenter, after the injury. It was stipulated that if appellee is entitled to recover, the sum he is entitled to is the amount of the judgment.

The application and certificate for membership were signed by appellee. Tbe application provides: “I hereby agree to make prompt payment * * * and to conform in all respects to the laws, rules and usages of the order now in force or which may hereafter be enacted by the same.” The certificate of membership contains a similar clause. The declaration avers “that under the law and under said certificate of insurance, the by-laws of said defendant company became and were a part of said certificate of insurance; that said company had, prior to the issuance of said certificate of insurance, section 105 of its constitution and by-laws in words and figures as follows, to-wit: “Sec. 105. Any member holding a benefit certificate who shall become partially disabled by the loss of a hand at or above the wrist # * * shall receive from the reserve fund one half of the certificate less the unpaid cost * * * ” Appellee offered in evidence the certificate and said by-law and proved his injuries as above stated. It was stipulated that appellant might under the general issue introduce any evidence or interpose any defense that would be proper under any plea. Appellant offered in evidence an amendment to section 105 of the by-laws passed and adopted November 4, 1907, after appellee became a member and before the date of the injury. The section as amended provides: “any member holding a benefit certificate who shall become partially disabled by the loss of a hand, by severance at or above the wrist * * * shall receive from the reserve fund one half of the certificate less the unpaid cost.” Appellee waived all preliminary proof of the passage of the amendment, but objected to the admission of the amendment for the reason it was passed after the certificate was issued, and that there was no provision showing that the amendment is retroactive in effect, but that it was prospective only. The court sustained the objection, and this ruling is assigned for error.

It is also assigned for error that the court should-have given a peremptory instruction requested at the close of appellee’s evidence and at the close of all the evidence. It is clear that if the amendment is applicable plaintiff has no case. But if it is not, yet Under the by-law in force when the certificate was issued appellee was only entitled to indemnity for the loss of a hand at or above the wrist. Appellee by his own showing has at least half the hand left. He was asked by his counsel whether or not he could perform the work necessary in his vocation, and his answer was, “Well, it interferes with anything I want to do.” He testified he could use the hand to drive nails but that he did not have much strength in it; that he had worked at the carpenter’s trade earning two dollars a day since the injury. It is clear that plaintiff’s hand was badly injured, but he has the use of more than half the hand, so that he- has not lost a hand at or above the wrist. The evidence of appellee does not prove the loss of a hand, and the court erred in refusing the peremptory instruction asked by appellant. The judgment is therefore reversed with a finding of fact.

Reversed.

Finding of Fact : The appellee did not lose a hand at or above the wrist.


text:
    George H. Fitzgerald, Defendant in Error, v. J. C. James, Plaintiff in Error.
    Gen. No. 5315.
    1. Appeals and errors—when exception must he preserved. An exception can only be preserved by a bill of exceptions. An entry by tbe clerk in the record that a party excepted has no effect and cannot supply the place of a bill of exceptions.
    2. Appeals and errors—when exceptions must he preserved. An exception must be taken at tbe term at wbicb tbe ruling is made to wbicb it is desired to preserve an exception, and tbe bill of exceptions must be filed at that term or witbin sucb further time as tbe court may at that time grant for tbe purpose.
    Action commenced before justice of tbe peace. Error to the County Court of Lake county; tbe Hon. De Witt L. Jones, Judge, presiding. Heard in this court at tbe October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    Cooke, Pope & Pope, for plaintiff in error.
    Ernest S. Gail, for defendant in error.
   Mr. Justice Thompson

delivered the opinion of the court.

George H. Fitzgerald brought suit before a justice of the peace against J. C. James, George H. Holt and the Manhattan Motor Car Company. Judgment for $200 was rendered on September 23, 1908, against all the defendants. The defendants appealed to the County Court. At the April term, 1909, of the County Court; after the case was partially tried before a jury, the plaintiff dismissed as to the Manhattan Motor Car Company, and on motion of the remaining defendants a juror was withdrawn and the case continued. At the October term, the case was again set for trial and upon being reached the plaintiff dismissed as to the defendant Holt, and on motion of plaintiff the appeal of James was dismissed with a procedendo to the justice. Afterwards, in September, 1910, James made a motion to have an exception entered nunc pro tunc as of the October term, 1909, and filed an affidavit made by his attorney setting forth that James was at the time of the dismissal represented by his attorney who orally excepted to the order of dismissal. The court overruled the motion, and James prosecutes this writ of error.

An exception can only be preserved by a bill of exceptions. Had the motion of James been allowed, still an entry by the clerk in the record, that a party excepted, has no effect, and cannot supply the place of a hill of exceptions. People v. C. & N. W. Ry. Co., 200 Ill. 289; Jones v. Village of Milford, 208 Ill. 621.

There is no hill of exceptions to the order dismissing the appeal entered at the October term, 1909, hut only a hill of exceptions to the order of the County Court overruling the motion to have an exception entered nunc pro tunc made several terms later. An exception must be taken at the term at which the ruling is made, to which it is desired to preserve an exception, and the hill of exceptions must he filed at that term or within such further time as the court may at that time grant for the purpose. Finch and Co. v. Zenith Furnace Co., 245 Ill. 586. On an appeal from the judgment of. a justice of the peace, properly perfected to the County Court, the matter stands for trial de novo and the court may not dismiss the appeal for want of prosecution. However, there is no exception to the order dismissing the appeal and the order itself does not show for what reason the appeal was dismissed. If plaintiff in error or his attorney was present in court at the time of the dismissal he should have taken a bill of exceptions at that time that would show wherein he claims the court erred in dismissing the appeal. The appeal may have been properly dismissed for some good and sufficient reason. This court will not assume that the dismissal was erroneous, in the absence of a hill of exceptions showing the proceedings. There is no other question raised by the record in this case for our consideration and the judgment is affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Louis Zoeller, Plaintiff in Error.
    Gen. No. 5391.
    1. Dram-shops—what evidence will not reverse in prosecution for selling liquor in anti-saloon territory. To sell liquor to a minor within- such territory is illegal. The absence of the parent’s consent is not material but to permit the lack of such consent to be shown is harmless error.
    2. Dram-shops—what evidence competent in prosecution for selling liquor in anti-saloon territory. A question put to the defendant when called in his own behalf, inquiring as to why he had taken out a government license, is proper, but the error in refusing to permit it to be answered is cured where the court afterwards has permitted such defendant to explain that he procured a government license “because some fellows brought liquor there and left it for an hour or two.”
    3. Deam-shops—when evidence convincing in prosecution for selling liquor in anti-saloon territory. In such a prosecution the evidence is clear and convincing when it appears that the liquor came in bottles the size of ordinary beer bottles; that it looked like beer, tasted like a poor quality of lager beer, foamed like beer and produced the same effect as beer on the drinker; that the liquor was intoxicating; that the place where the defendant sold the liquor was in anti-saloon territory, and that the defendant had an internal revenue special tax stamp from the United States for the retail sale of liquor at his place of business at the time the sales were made.
    4. Instructions—when upon demeanor of defendant in criminal case erroneous. An instruction relative to the demeanor of the defendant “upon the witness stand and during the trial” as to the italicized portion thereof is erroneous and ground for reversal unless the proof is so clear and convincing that the jury under the evidence could not reasonably have acquitted the defendant.
    Prosecution for unlawful sale of intoxicating liquor. Error to the County Court of Lee county; the Hon. R. H. Scott, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    John E. Erwin, for plaintiff in error.
    Harry Edwards, for defendant in error.
   Mr. Justice Thompson

delivered the opinion of the court.

An indictment containing thirty-five counts was returned by the grand jury of Lee county, charging Louis Zoeller with unlawfully selling intoxicating liquor in anti-saloon territory. The defendant pleaded not guilty. Upon a trial he was found guilty on three counts and fined thirty dollars on each count. The defendant prosecutes this writ of error to review that judgment.

The people were permitted to show by a minor that plaintiff in error sold liquor to him without the consent of his parents. It was immaterial whether he had the consent of the parents to sell to the minor, since if he sold intoxicating liquor to any person it was unlawful, but the error was harmless.

Plaintiff in error while a witness was asked to explain how he happened to take out a government license. An objection was sustained to this question. This ruling was erroneous. Afterwards, however, he was permitted to explain that he procured a government license “because some fellows brought liquor there and left it for an hour or two.” This answer remedied the error in the ruling on the objection.

On the trial ten witnesses testified to the purchase of liquors called local option fizz and tempo from the plaintiff in error. These witnesses testified that liquor came in bottles the size of ordinary beer bottles; that it looked like beer, tasted like a poor quality of lager beer, foamed like beer and produced the same effect as beer on the drinker. They also testified that the liquor was intoxicating and many of them that they became drunk from drinking this liquor. It was also proved that the place, where the plaintiff in error sold the liquor, was in anti-saloon territory and that the plaintiff in error had an internal revenue special tax stamp from the United States for the retail sale of liquors at his place of business at the time the sales were made. The only evidence presented by the plaintiff in error was his own testimony that the liqnor was not intoxicating and that he sold openly with the knowledge of the village officials and clergy.

The proof is clear and convincing that he was guilty of the offenses charged and the jury might have convicted him on each count of the indictment.

The court at the request of the people gave an instruction relative to the demeanor of the plaintiff in error “upon the witness stand and during the trial.” While that part of the instruction that concerns his demeanor during the trial should not have been given, and would cause a reversal of the case if there was any doubt of his guilt under the proof, yet when the proof is so clear and convincing as in this case, and the jury under the evidence could not reasonably have acquitted the defendant, the giving of this instruction is harmless error. People v. McGinnis, 234 Ill. 68; O’Donnell v. People, 224 Ill. 218; Rider v. People, 110 Ill. 11.

It is contended that the court erred in refusing two instructions requested by plaintiff in error. The first is in regard to the failure of the people to call witnesses subpoenaed on behalf of the state. There is no evidence on which to base the instruction and it was properly refused. The second refused instruction was given almost verbatim in number seven given. Finding no reversible error the judgment is affirmed.

Affirmed.