text:
    Mary A. Ward v. City of Chicago.
    1. Motions to instruct to find fob defendant.—Motions to exclude the evidence and motions to instruct the jury to find for the defendant are in the nature of demurrers to the evidence, and hence admit not only all that the evidence proves but all that it tends to prove.
    . 2. When ant evidence to prove plaintiff’s case.—Where there is any evidence tending to prove the plaintiff’s cause of action, and upon which the jury could reasonably find in favor of the plaintiff, it is the duty of the court to leave it to the jury to determine its weight and effect.
    Appeal from the Superior Court of Cook county; the Hon. Bollin S. Williamson, Judge, presiding.
    Opinion filed June 25, 1884.
    Mr. John W. Ela and Mr. W. B. Manlove, for appellant;
    that it was error for the court to take the question of negligence from the jury, cited Wabash R. R. Co. v. Elliott, 98 Ill. 481; Bateman v. Ruth, 3 Daly (N. Y.), 378; Penn. R. R. Co. v. McTiche, 46 Penn. 321; Bigelow v. Rutland, 4 Cush. 247; Williams v. Town of Clinton, 28 Conn. 264; Maloy v. N. Y. Cent. R. R. Co., 58 Barb. 183.
    Mr. Julius S. Gbinnell, for appellee;
    that it must first appear in proof that plaintiff was exercising due care before any recovery can be had, cited Kepperly v. Ramsden, 83 Ill. 354; I. & St. L. R. R. Co. v. Evans, 88 Ill. 63; Kewanee v. Depew, 80 Ill. 119; Quincy v. Barker, 81 Ill. 300; Lovinguth v. Bloomington, 71 Ill. 238.
   Bailey, J.

This was an action on the case brought by-Mary A. Ward against the city of Chicago, to recover damages for a personal injury caused, as is alleged, by the negligence of the city. At the time of the injury, West Jackson street was being macadamized, and at the place where it was crossed by Throop street it was then, and for a considerable time had been, in an unfinished condition. The evidence tends to show that at that place the surface of West Jackson street between the curb-stones was covered with small broken rock; that the ditch or gutter next to the curb-stone was about two or d two and one half feet in depth; that there was no bridge or apron from the curb-stone across the gutter, but that a plank or scantling was lying on the surface of the street on the other side of the gutter, about two or two and one half feet from the curb-stone; that there was no light at or near the place and no barricade to prevent people from crossing at that point; that on the evening of October 11, 1880, at half past six o’clock or later, it being then nearly or quite dark, the plaintiff, while on her way home from the place of business, was walking south on the east side of Throop street, and on reaching West Jackson street, attempted to step from the curb-stone across the gutter to said plank or scantling, and in doing so, fell and struck upon a pile of stones lying near and severely sprained her wrist. The evidence also tended to show that at the time of the injury she was in the exercise of reasonable and ordinary care.

At the close of the plaintiff’s evidence, the court, on motion of the defendant, instructed the jury that there was no evidence proving or tending to prove the material allegations of the plaintiff’s declaration, and directed them to find a verdict of not guilty. The jury thereupon gave their verdict in accordance with said instruction, and the court, after overruling the plaintiff’s motion for a new trial, gave judgment in favor of the defendant for costs. From this judgment the plaintiff has appealed to this court.

Motions to exclude the evidence and motions to instruct the jury to find for the defendant, are in the nature of demurrers to the evidence, and hence they admit not only all that the evidence proves, but all that it tends to prove. Where, therefore, there is any evidence tending to prove the plaintiff’s cause of action, and upon which the jury could reasonably ■find in favor of the plaintiff, it is the duty of the court to leave it to the jury to determine its weight and effect: Frazer v. Howe et al. 106 Ill. 563.

We think it clear that the evidence tended to charge the defendant with negligence contributing to the injury complained of, and also to show that the plaintiff was in the exercise of ordinary care. It should then have been submitted to the jury.

It is no answer to say that certain portions of the - evidence are susceptible of inferences unfavorable to the plaintiff. If so, it was for the jury to draw such inferences and not for the court. It was not within the province of the judge, on a motion to instruct for the defendant, to weigh the evidence and ascertain where the preponderance was. If upon any reasonable construction, it tended to prove the cause of action, that construction was the one he was bound to adopt.

For the error in the instruction the judgment will be reversed and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Wilson, J.

license: Public Domain

text:
    Chicago & Northwestern Railway Co. v. Elsa Bannerman.
    1. Common gabbier—Ticket evidence oe right to travel—Between the cqncluctor and a passenger, as to the right of the latter to travel, the ticket purchased must be conclusive evidence, and the passenger must produce it when called upon, as evidence of his right to the seat he claims,
    2. Same.—Where appellee's husband bought -a non-transferable 1,000 mile ticket and told the agent to issue it to “ E. Bannerman,” and the agent thinking it was intended for a man, inserted “ Mr.” before the name, and the ticket was presented by the husband to pay his wife's fare, he stating at the time to the conductor that it was bought for his wile, Elsa Bannerman, and the conductor refused to receive such ticket in payment of the wife’s fare, and upon a refusal to pay her fare, put her off at the next station, using no unnecessary force, Held, that appellee could not recover damages from the railroad company for such expulsion.

      Appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Opinion filed June 25, 1884.
    Hr. B. C. Cook, for appellant;
    cited C. B. & Q. R. R. Co. v. Griffin, 68 Ill. 504; Frederick v. M. H. & O. R. R. Co., 37 Mich. 346; H. & T. C. R. R. Co. v. Ford, 2 Am. & Eng. R. R. Cas. 514; 53 Tex. 364; Thompson on Carriers, 338; Pullman Car Co. v. Reed, 75 Ill. 130; Johnson v. Concord R. R. Co., 46 N. H. 213; Borie v. Hudson R. R. Co., 61 Borle, 611; Deetretch v. Penn. R. R. Co., 71 Penn. State, 432; Wakefield v. S. B. R. R. Co., 117 Mass. 544.
    Mr. Eli B. Felsenthal, for appellee.
   Wilson, J.

This was case, brought by appellee against the Chicago and Northwestern Bail way Company, to recover damages for expelling her from appellant’s train of cars. There was a jury trial, resulting in a verdict for the plaintiff for $500, of which the plaintiff remitted $250, and had judgment for the balance.

There is no material "dispute as to the facts. Appellee, in company with"her husband, Daniel Bannerman, took the train at Evanston for Crystal Falls, Michigan. Bannerman tendered to the conductor a special 1,000 mile commutation ticket, out of which to take appellee’s fare. The ticket on its face purported to be issued to “Mr. E. Bannerman.” The conductor told him it was not a lady’s ticket, and that under his instructions he could not receive it in payment of appellee’s fare; that she would have to pay her fare or leave the train. He offered to give her a receipt for the money, saying, if it was not all right, the money would be refunded at the office. She desired her husband to pay her fare, which he declined to do, and neither appellee nor her husband paying her fare, nor offering to pay, she was put off the train at Waukegan, a regular station on defendant’s road. No more force was used in expelling her than was necessary, and it is not claimed that she received any physical injury in consequence of her expulsion.

Attached to and constituting a part of the ticket, was a printed agreement (except the name of the person to whom it was issued, which was written), by the terms of which it was stipulated in substance that the company would carry the passenger at a reduced rate, in consideration of the purchase by the latter of a non-transferable ¡1,000 mile ticket, such ticket not to be good unless signed in ink by the person to whom it was issued. It appeared from the evidence that the ticket in question was purchased by appellee’s husband, but not in her presence; that at the time he purchased the same, he did not disclose to the company’s agent of whom he bought it that it was for a lady, but when asked by the agent to whom it was to he issued, he only replied, “ E. Banner-man,” and the ticket was thereupon filled up with the name, “ Mr. E. Bannerman.” The agent was not informed, nor had he any knowledge that the ticket was intended for a woman; neither had the conductor any knowledge or information on that subject other than what appeared on the face of the ticket, except that he was told by appellee’s husband at the time it was offered to the conductor, that it was bought for her. It was unsigned when presented, but appellee testified that she offered to then sign it.

The defendant requested the court to instruct the jury in substance that if at the time when the conductor asked the plaintiff for her fare, she, or some one acting for her, presented to him the 1,000 mile ticket introduced in evidence, and the conductor informed her that he could not take her fare out of such ticket, and that she would have to ’present a different ticket or pay her cash fare or leave the train, and that she or the person acting for her refused to pay any fare whatever unless the fare should be taken out of such 1,000 mile ticket, and that the conductor declined to take her fare out of such ticket, he had a right to expel her from the train, using no unnecessary force. The court refused to so instruct and the defendant. excepted.

The contract arising on a ticket like that under consideration is one which persons may lawfully enter into, and when made with a full knowledge of its conditions as expressed upon its face, is valid and binding upon the parties thereto. Commutation tickets of this nature have come into very general use, and are found to be of much practical benefit as well as convenience to commercial and other travelers by railway. They are based upon sufficient reciprocal considerations, the railroad companies agreeing to carry at reduced rates, and the purchaser agreeing that the ticket is not to be used by any one but himself, and further, that he will sign his name to the contract in ink before presenting it for passage, and will identify himself by his signature whenever so required by the conductor. These conditions are reasonable and just, both to the companies and to the traveling public.

Both appellee and her husband testified that they knew all the terms and conditions of the ticket at the time of presenting it to the conductor. There was nothing on its face to indicate that it was for a woman; on the contrary it affirmatively appeared to be a ticket for a man. The name was not simply E. Bannerman, but Mr. E. Bannerman, and the word “Mr.” indicated only a man. The conductor was therefore justified in assuming that appellee was not the person designated in the ticket.

Nor was he required to take the testimony of appellee’s husband that the ticket was purchased for his wife. As was said in Frederick v. M. H. & O. R. R. Co., 37 Mich. 342, “ How then is the conductor to ascertain the contract entered into between the passenger and the railroad company, where a ticket is purchased and presented to him? Practically there are but two ways: one, the evidence afforded by the ticket; the other, the statement of the passenger, contradicted by the ticket. Which should govern ? * * *' There is but one rule which can safely be tolerated with any decent regard to the rights of railroad companies and passengers generally. Between the conductor, and passenger, as to the right of the latter to travel, the ticket purchased must be conclusive evidence, and he must produce it when called upon, as evidence of his right to the seat he claims,” and see numerous cases there cited.

In C. B. & Q. R. R. Co. v. Griffin, 68 Ill. 504, the Supreme Court said : “ The evidence tends to prove the mistake occurred at Mendota through the inadvertence of the ticket agent in giving out the wrong ticket; if so, the conductor was right in demanding fare a second time. He was not bound to rely upon the statements of appellee that he had paid his fare to the station to which he had been carried. It .was the duty of appellee to pay the fare demanded, and if the company refused to make reparation for the indignity to which he had been exposed in being compelled .to repay his fare, he could maintain an appropriate action. The conduct- or must necessarily have the supervision and control of the train, otherwise there would be no protection to the lives and comfort of travelers.” See, also, Pullman Car Company v. Reed, 75 Ill. 125.

In Yorkton v. M. L. & W. Ry. Co., 54 Wis. 234, where a passenger failed to procure a stop-over ticket, through the fault of the conductor, and was expelled from the train by another conductor upon refusal to pay fare, it was held that no action would lie against the company for such expulsion. And see also cases cited in Thompson on Carriers of Passengers, 338.

In the recent case of Pennsylvania R. R. Co. v. Connell, reported in Legal Hews of June 14, 1884, the Supreme Court, reversing the judgment of this court, hold (if we do not misapprehend the scope of the decision), that even where a passenger presents to the conductor a ticket which has been duly issued to him by the company’s authorized agent, upon the payment of full fare, and which entitles.him to be carried over the company’s road, it is the duty of such passenger, when notified by the conductor that he will not receive the. ticket, to pay his fare under protest, or leave the train without compelling the conductor to resort to force to expel him, and that he can not recover for the force, which, by his resistance, it became necessary for the conductor to resort to, in order to expel him. In that case the passenger had bought a through ticket from Omaha to Hew York, over various connecting lines, including the Baltimore and Ohio and the Pennsylvania,companies. On reaching Philadelphia he took the cars of the Penn. B. B. Co. for Hew York. 'The conductor declined to receive his ticket, informing him that by reason of some difficulty between the Pennsylvania company and the Baltimore and Ohio, his orders were to no longer honor tickets reading via the latter road. It appears that Connell purchased the ticket at Omaha from a person authorized to sell tickets via the Baltimore and Ohio and the Pennsylvania roads; that he pi.i 1 full fare therefor, and that at the time of purchasing the ticket and presenting the same to the conductor, he had no knowledge of any change in the relations existing between the two companies. Befusing the conductor’s demand to pay fare, he was put off the train by force, receiving, in consequence of his resistance, serious physical injuries, for which he brought suit.

The Supreme Court held that he was not entitled to recover damages for the force which produced his injuries. Craig, J., iu delivering the opinion of the court said: “ Conceding that appellee, by virtue of his ticket, ivas entitled to be carried over appellant’s road, the question presented is whether he can recover damages for being forcibly expelled from the train, or was it his duty when notified by the conductor that he would not receive the ticket, to pay his fare under protest or leave the train, and hold the company responsible for the expulsion, without compelling the conductor to resort to force. Had appellee paid the fare demanded, he could have sued the company and recovered for a breach of the contract. Had he left the train wdien the conductor refused to receive the ticket and ordered him to leave, he might have sued and recovered for all damages sustained in consequence of the act of the conductor expelling him from the train; hut can he recover for the force used by the conductor which he by his own act induced the conductor to resort to in order to put him off the train?” While the writer of this opinion finds it difficult to yield his assent to the doctrine of the Connell case, it must nevertheless be accepted as of binding authority, coming as it does from the court of last resort.

In the light of the foregoing and other cases of like import, we are of opinion that the defendant’s refused instruction was substantially correct and should have been given, and we are further of opinion that under the facts shown, appellee was not entitled to recover. It was the duty of her husband "when purchasing the ticket, if it was intended to be used by his wife, to have so informed the agent of whom he bought it. Common fairness to the company’s conductors, who are placed, as it were, between two fires, required this to be done.

The judgment must be reversed and the cause remanded for a new trial.

Eeversed and remanded.


author: Davis, J.

text:
    Peoria, Decatur and Evansville Ry. Co. v. W. H. Purviance.
    Stock bniAlír» BY BAn,uoAD 'Tiíatn.—To entitle a party to recover for stock killed by a train, and for attorneys’ fees as given by statute, it must be shown that the railroad against which the suit is brought had been open for use six months before the injury complained of.
    AfcPEAL from the Circuit Court of Logan county; the Hon. G-. W. Herman, Judge, presiding.
    Opinion filed May 22, 1884.

      Messrs. Eliott & IIoblit, for appellant;
    cited C. & A. Ry Co. v. Taylor, 40 Ill. 280; 1 Redfield on Railways, § 32; B. & C. Ry. Co. v. McElroy, 35 Ohio, 147; O. & M. Ry. Co. v. Jones, 27 Ill. 41.
    Messrs. Beach & IIodnett, for appellee.
   Davis, J.

This action was' brought by appellee to recover the value of eight hogs alleged to have been killed by a train on the railroad of appellant, and also to recover attorney’s fees given by statute.

The jury found a verdict for appellee of $78.50, and a judgment was rendered against appellant for that amount by the court below, and to reverse the judgment this appeal was taken.

it is claimed by appellant that the evidence given on the trial failed to show that the railroad had been open for use six months before the hogs were killed. It has been frequently held by the courts of this State, that to entitle a party to a recovery in cases of this kind, it must be shown that the railroad against which the suit is brought had been open for use six months before the injury complained of. The O. & M. Railroad Company v. Levi H. Jones, 27 Ill. 41; Same v. Meisenheimer, 27 Ill. 30; Wabash, St. Louis & Pacific Railway Co. v. Neikirk, 13 Bradwell, 387.

This is a technical defense interposed, but while the statute remains as it is and the cases cited remain- unreversed, we must treat the defense as valid.

The record of the case now before us shows that no evidence whatever was offered of the time when the road of appellant was first opened for use, or that it had been opened for use six months before the hogs were injured or killed, for which a recovery is now sought. We are compelled, therefore, to reverse the judgment and remand the case.

Judgment reversed.


text:
    Abraham H. D. Butz v. Jacob Schwartz.
    Evidence.—Appellant brought an action on a promissory note. Appellee plead non-assumpsit and pleas of fraud and circumvention in obtaining the execution of the note. Appellant introduced evidence tending to prove the signature and assignment and read the note. Appellee then introduced evidence to show the facts and circumstances constituting the alleged fraud and circumvention. Held, that appellant had the right to introduce any competent rebutting testimony which tended t o disprove the truth of such charge and show the transaction to have been fair and honest.
    Appeal from the Circuit Court of Adams county; the Hon. J. H. Williams, Judge, presiding.
    Opinion filed May 22, 1884.
    Messrs. Emmons & Wells, for appellant;
    that all conversations occurring at the time the note was executed, plaintiff was entitled to introduce in rebuttal as a part of the res gestee, cited Phares v. Barber, 61 Ill. 274; Thorp v. Goewey, 85 Ill. 614; Jumpertz v. People, 21 Ill. 375.
    Messrs. Sibley, Carter & Covert, for appellee;
    that it is not error for the court to refuse to admit the plaintiff in his rebutting testimony to enter upon his original case, cited Morse v. Paller, 4 Gray, 292; Day v. Morse, 4 Gray, 522; York v. Pearse, 4 Gray, 382; Briggs v. Humphrey, 5 Allen, 314; Cushing v. Billings, 2 Cush. 158; Commonwealth v. Manlten, 2 Cush. 40; Un. W. Co. v. Crary, 25 Cal. 504.
   Davis, J.

This was an action brought by appellant to recover on a promissory note, alleged to have been executed by appellees to Beyburn, Hunter & Co., and by them assigned to F. C. Jennings, and by him to appellant.

Appellee plead non-assumpsit and filed several pleas verified by affidavit: one that he did not execute the note sued on, and the other that Beyburn, Hunter & Co., did not make and execute the supposed indorsement to Jennings. He also tiled three pleas that the making and execution of said note were obtained by fraud and circumvention. Similiter to first named pleas, and replication to pleas of fraud and circumvention, that the execution of the note sued upon was not obtained by fraud and circumvention, with proper similiter to same were filed, and the issues were submitted to the jury. The jury found the issues for appellee, and the court rendered judgment against appellant for costs, to reverse which he appeals.

Appellant first introduced testimony which tended to prove that appellee had signed the note in controversy, and also that Beyburn, Hunter & Co., had indorsed the note to Jennings. He then read the note in evidence, and on this testimony, it none had been offered by appellee, appellant would have been entitled to a verdict in his favor.

Appellee then, under his several pleas of fraud and circumvention, gave in evidence to the jury all the facts and circumstances connected with the making and execution of the note in controversy, on which he relied to sustain his pleas, and this evidence tended to prove that instead of making and executing the note sued on, he signed no note and was to give no note, and purchased no lightning rods, but only signed a paper which was represented to him as necessary to be sent to Beyburn, Hunter & Co., so that they would send the necessary papers to his son Daniel, which would authorize him to act as their local agent and sell a quantity of lightning rods which appellee had permitted them to store in his granary.

When appellee rested, appellant offered to give in evidence in rebuttal, the testimony of Miss Sallie Malone, by whom he expected to prove that appellee admitted he had bought the lightning rods in question. To this testimony appellee objected, and the court sustained the objection on the ground that appellant could not prove by her anything which he should have proved in chief, and that he could not prove anything in rebuttal about that.

Appellant then offered in rebuttal to read in evidence, to the jury, the depositions of Marion Hughes, David W. Jennings and Frank C. Jennings, who testified they were present when the note was signed by appellee, heard all that passed between the parties, and were acquainted with all the facts and circumstances connected with the transaction, and testified to all such facts and circumstances. Appellee objected to the reading of the depositions on the ground that the testimony was immaterial, irrelevant, incompetent and not in rebut'al. ' The court sustained the objection, and refused to permit the depositions to be read to the jury, except a few formal questions and answers of each deposition.

The action of the court in excluding the depositions and the testimony of Miss Malone is the principal error assigned by appellant for the reversal of the judgment.

We think with appellant, that the court erred in excluding such testimony.

Appellant was required in the first instance, to introduce all the testimony he intended to offer to sustain the affirmative issues, which were cast upon him by the pleadings. These were, that appellee had executed the note upon which the action was brought, and that the person to whom the note was made payable, had indorsed it as averred in the declaration. In this .respect he had complied with the rule and he did not subsequently seek to offer additional testimony to sustain such issues. That the testimony which was excluded from the jury by the court tended to prove the issue that the note was executed by appellee, did not render it incompetent when offered in rebuttal to disprove the affirmative issue of fraud and circumvention raised by appellee.

Under the latter issue, appellant was not required to anticipate the evidence which might be offered by appellee and disprove in advance the charge of fraud and circumvention. Until appellee had opened his 'side of the case and had introduced all his testimony to sustain his plea of fraud and circumvention, appellant .was not required to offer his rebutting testimony to sustain the honesty and fairness of the transaction.

Therefore, after appellee had testified, as a witness, to the facts and circumstances constituting the alleged fraud and circumvention, and had introduced his other testimony to sustain such affirmative issue, appellant had, we think, the undoubted right to introduce any competent rebutting testimony which tended to disprove the truth of such charge and show.the transaction to have been fair and honest. This he attempted to do, and we think the testimony he offered was competent for that purpose, and the court erred in excluding it from the jury. The judgment, therefore, must be reversed and the cause remanded.

Judgment reversed.


author: McCulloch, P. J.

text:
    Wabash, St. Louis & Pacific Ry. Co. v. Thomas Thompson.
    1. Negligence.—Before a person can recover on account of the neglect of a statutory duty, it must appear not only that the injury complained of was the result of such neglect, but it must also appear that the injured party was in the exercise of due care. If the negligence of the injured party contributed to the injury, before he can recover, it must appear that his negligence was “slight,” and that of the defendant “ gross.”
    2. Same.—If A is chargeable by a statute with negligence in constructing a pumping apparatus in a certain manner, and B, with a knowledge of the facts, undertakes to operate the same under a contract with A, B is chargeable by the same statute with negligence in operating the same and the doctrine of comparative negligence does not apply.
    3. Master and servant.—Where a servant, at the time of entering the service of a master, has full knowledge of all the perils of the particular service, he assumes the risk and must bear the consequences.
    Appeal from the Circuit Court of Morgan county; the Hon. C. Epler, Judge, presiding.
    Opinion filed May 22, 1884.
    Messrs. Brown, IZirby & Bussell, for appellant;
    cited W. St. L. & P. Ry. Co. v. Thompson, 10 Bradwell, 271; I. C. R. R. Co. v. Hetherington, 83 Ill. 510; L. & M. S. Ry. Co. v. Berlink, 2 Bradwell, 427; Reynolds v. Hindman, 32 Ia. 147.

      Mr. Gteobgke W. Smith and Mr. E. Gr. Wilson, for appellee;
    cited C. & A. R. R. Co. v. Platt, 89 Ill. 141; Lammert v. C. & A. R. R. Co., 9 Bradwell, 390; T. P. & W. R. R. Co. v. Wickey, 44 Ill. 76; T. P. & W. R. R. Co. v. Pence, 68 Ill. 524; Ewing v. C. & A. R. R. Co., 72 Ill. 25; Sangamon Distillery Co. v. Young, 77 Ill. 197.
   McCulloch, P. J.

This case was before this court on a former occasion, and will be found reported in 10 Bradwell, 271, where the principal facts of the case are stated. After it had been re-docketed in the circuit' court, appellee was granted leave to amend his declaration, which he did by averring due care on his own part, and by adding a count charging appellant with negligence in allowing steam to suddenly escape from an engine, whereby appellee’s horse was frightened into a running gait, in consequence of which the tumbling shaft was made to revolve rapidly, and appellee was thereby caught and injured. Some proof was introduced to sustain this charge, but we can not see that it has in any respect changed the legal aspect of the case. On the former occasion we held that, while the statute created a liability in case of a neglect to comply with its requirements, yet this liability was not absolute, and that the rule of contributory negligence prevailed, as in other cases. A further examination of the authorities satisfies us of the correctness of our ruling. It has been uniformly held by our Supreme Court that before a person can recover on account of the neglect of a statutory duty, it must appear not only that the injury complained of was the result of such neglect, but it must also appear that the injured party was in the exercise of due care. If the negligence of the injured party has contributed to the injury, then, before he can recover, it must appear that his negligence was no greater than that defined by the law as “ slight negligence,” and that the negligence of the defendant was such as the law denominates “gross negligence.” This rule was applied in C., B. & Q. R. R. Co. v. Johnson, Adm’r, 103 Ill. 512,"which was an action to recover damages caused by a neglect to observe a statutory duty. A failure to observe these statutory requirements is prima, facie negligence, but it does not excuse the injured party from the exercise of due care on his part.

It also appears that appellee took the contract to operate this pumping machinery with a full knowledge of its exposed condition, and that he continued to operate it for three days before the accident happened. After the making of his first contract, which appears to have been to furnish his own horse and work the pump one half of each day at twenty dollars per month, it was discovered that the water was about to fail, and the company began to draw water to that well from other points along its road, in tanks. It was then that appellee undertook the additional duty of discharging the water from the tanks into the well, in doing which he received the injury complained of. His duty called him under a car which stood on the track right above this tumbling shaft. Although he had full control of its operations, he did not stop the pump until he could empty the tank, but allowed it to continue in motion while his boy drove the horse. Under these circumstances, even if the relation of master and servant existed between appellant and appellee, so as to require the former to furnish safe machinery with which to operate, yet another and further rule also applies, that where the servant, at the time of entering the service of the master, has full knowledge of all the perils of the particular service, he assumes the risk and must bear the consequences. In the application of this rule it is held that where defects in the machinery or other appliances are as well known to the servant as to the master, tliQ servant must be regarded as voluntarily incurring the risk resulting from its use, unless the master, by urging on the servant or coercing him into danger, or in some other way, directly contributes to the injury. Pennsylvania Co. v. Lynch, 90 Ill. 333. There can be no question in this case that appellee was as well, if not better, acquainted with the dangers of the situation as were appellant’s agents in charge of the road, and if it was negligence on their part to construct this apparatus without boxing the tumbling rod, it was at least equal negligence on his part to expose himself to danger in the manner the evidence shows he did. We can, therefore, only repeat what we said before, that the evidence in this record fails to show that appellee was in the exercise of ordinary care.

Appellant asked the following instructions, which were refused.

5. The court also instructs the jury for the defendant, that “it is the established law that where a plaintiff’s own unlawful act concurs in causing the damage that he complains of, he can not recover compensation for such damages”; and if the jury find from the evidence that Thomas Thompson, the plaintiff, and his son, employed by himself, were running the machine by which he is said to have been injured, and that at the time he was so operating and running the machine he knew that the shafting was not boxed or covered, as required by law, then, under the law, he can not recover for injuries received by himself caused by his own running of such machine.

7. The court also instructs the jury for the defendant, that if they find from the evidence in this case that at the time of the injury complained of in the plaintiff’s declaration, the plaintiff was by himself, and agents employed by himself, running the horse-power by which the injury complained of was inflicted, he can not recover from the defendant for any damage resulting to himself by reason of running the machine in question.

8. The court instructs the jury for the defendant, that the statute of this State requiring the tumbling rods of horse-powers to be boxed, applies to persons running horse-powers with eqpal force as to the owners thereof; and in this case, if the jury believe from tire evidence that the plaintiff, at the time of receiving the injury complained of, was himself operating the horse-power spoken of in evidence, and knowing at the time that the tumbling rod was not boxed or secured, and using, for the purpose of driving said power, his own horse, and himself employing and paying the driver of the horse, and had at the time sole control 'of said horse-power and the right to start and stop and to regulate the motion of said power, then he was himself guilty of violating the said statute and can not recover for the injuries complained of.

9. The court further instructs the jury for the defendant, that if they believe from the evidence that the plaintiff, Thompson, was employed by the defendant on Friday to discharge and conduct water from the cars of the railroad company to its well, and that at that time said Thompson had already been engaged in running the horse-power mentioned in the evidence, and had full knowledge that the shafting connecting said horse-power with the pump and the knuckles thereof were not boxed, and that having such knowledge said Thompson, on Friday, entered into an agreement with the railroad company to discharge and conduct the water from the cars of the company to its well, at a point whipli he already knew to be near the line of said shafting, without making any objections to the unprotected condition of said shafting and knuckles thereof, then said Thompson took upon himself all the hazards and risks incident to the service which he so contracted to perform.

We are not prepared to say that the rule of law contained in the fifth instruction above quoted, that, where the plaintiff’s own unlawful act concurs in causing the damage that he complains of, he can not recover for such damages, applies to this case in as broad a sense as is contended for by counsel for appellant. But when that rule is applied to the hypothetical state of facts contained in the subsequent part of the instruction, it certainly stated the law of this case. If appellant is chargeable by the statute with negligence in constructing its pumping apparatus in the manner charged, then if appellee, with a knowledge of the facts, undertook to operate the same under a contract with appellant, he was certainly chargeable by the same statute with negligence in operating the same. We can see no room for the operation of the rule of comparative negligence in such case. Both were equally guilty, and in such case there can be no recovery. The seventh and eighth announce in another form the same proposition of law. Enough of these should have been given to the jury to have covered this aspect of the case. The ninth instruction covers a proposition already discussed, that if appellee continued in the employment of appellant with full knowledge of the danger and without making any objections he can not recover. This instruction should also have been given. For the reason that the evidence fails to sustain the verdict and that the court refused to give proper instructions asked by appellant the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.


text:
    A. J. Brall v. H. C. Agnew et al.
    1. Municipal corporations—Estoppel.—A municipality may be estopped by the acts of its officers, and a settlement of an existing controversy, if made in good faith, binds the corporation.
    2. Settlement of judgment by city council.—Appellant presented a petition to the city council setting forth mitigating circumstances, and asking that a judgment for $200 rendered against him for violation of municipal ordinances be satisfied upon the payment of $100. By a majority vote, the council determined to accept such proposition. Appellant then desisted from taking an appeal. After the time for an appeal had expired, the city attorney ordered out an execution, and placed it in the hands of a constable, with instructions to collect the whole of the judgment. Appellant then paid the $100 to the mayor, who turned it into the city treasury, and brought a bill in chancery to enjoin the collection of the balance of the judgment. Held, that a perpetual injunction to restrain such collection should be granted.
    Appeal from the Circuit Court of McDonough county; the lion. S. P. Shope, Judge, presiding.
    Opinion filed May 22, 1884.
    Messrs. Reece & Blazer, for appellant;
    that a municipal corporation has' authority, through its council or governing body, to settle suits, cited Dillon on Municipal Corporations, § 398, n. 4; Petersburg v. Mappin, 14 Ill. 193; Harms v. Fitzgerald, 1 Bradwell, 325.

      The doctrine of estoppel in pais applies to municipal corporations: Logan Co. v. City of Lincoln, 81 Ill. 156; Martel v. City of East St. Louis, 94 Ill. 67.

    Mr. Jas. H. Bacon and Mr. H. C. Agnew, for appellees;
    that neither the corporation nor its officers can do any act, make any contract or incur any liability not authorized by its organic act, cited Dillon on Municipal Corporations, § 55; Cook Co. v. McCrea, 93 Ill. 236; Zanone v. Mound City, 103 Ill. 552.
    The judgment was the private property of the corporation, and the council had no power to dispose of it without any consideration: Petersburg v. Mappin, 14 Ill. 193; Milhan v. Sharp, 15 Barb. 193; Allen v. Marion, 11 Allen (Mass.), 108; Sherlock v. Winnetka, 59 Ill. 389.
   McCulloch, P. J.

This was a hill in chancery brought by appellant against appellees, to enjoin the collection of a balance of a judgment of $200, rendered before a police magistrate, against appellant and in favor of the city of Macomb, for a violation of its municipal ordinances. The said judgment was rendered on the 20th day of March, 1883. Cn the 2d day of April ensuing, appellant presented a petition to the city council, then in session, setting out a series of mitigating circumstances under which the offense had been committed, and asking that the judgment be satisfied upon his paying $100, and costs of suit. At the same meeting the city council by a majority vote determined to accept the said $100 and costs in satisfaction of the judgment, and the mayor was instructed to receipt the justice’s docket upon payment of the money according to the vote of the council.

Prior to this action of the city council, appellant had taken some steps toward appealing the case, and had employed counsel for that purpose, but upon the city council taking the aforesaid action, he took no further steps in that direction. Matters remained in this situation until after the time for taking an appeal had expired. On the 13th day of April, Agnew, the city attorney, ordered out an execution, and placed the same in the hands of appellee Williams, as constable, with instructions to collect the whole of the judgment and costs. Almost simultaneously with this action of the city attorney, appellant paid to A. Blount, the mayor of the city, $112.95, and took his receipt therefor in full payment and satisfaction of said judgment and costs, in pursuance of the order made by the council at their meeting of the 2d day of April. Tho money so paid into the hands of the mayor was by him turned into the city treasury.

After this payment had been made, the city attorney still persisting in his determination to collect the whole of the judgment, the bill in this case was filed. Upon a hearing in the circuit court, the injunction therefor granted was dissolved and the bill dismissed. Appellant now brings the case to this court by appeal.

It is contended on the part of appellees that the city council had no power to dispose of the judgment in the manner it assumed to do, because it was the private property of the corporation, over which the council had no such control.

We think it is a sufficient answer to this proposition, to say that at the time the action of the council now in question was taken, the matter in litigation had not yet reached its termination, and so the judgment had not become absolutely a part of the assets of the city. The right of appeal was still open.

Counsel for appellee do not question the right of the city council to settle pending suits. If that be the law, then it seems reasonable that, in order to avoid an appeal where the way to an appeal is still open, the same body may order a prosecution to proceed no further if the defendant will pay a portion of the judgment rendered before the magistrate.

We do not deem it necessary to follow the argument of counsel for appellees as to whether or not the transaction between appellant and the city of Macomb constituted a valid contract. It sufficiently appears that the corporate authorities accepted the proposition of appellant; that relying upon their action, he desisted from taking his appeal; that he afterward paid the money as he had proposed; that the same was accepted and passed into the city treasury, where it remained until the commencement of this suit.

That a municipality may be estopped by the acts of its officers, is the settled law of this. State. Logan County v. City of Lincoln, 81 Ill. 156; Martel v. East St. Louis, 94 Ill. 67; Village of Genoa v. Van Alstyne, 108 Ill. 558; and a settlement of an existing controversy, if made in good faith, binds the corporation. Petersburg v. Mappin, 14 Ill. 193.

We are of the opinion, this case comes within the principles of the decisions just quoted. Although appellant did not pay the money until after the expiration of the time in which he could have perfected an appeal, yet it does appear that he lost his right of appeal in consequence of the action of the city council. He followed the light displayed for his guidance by the city authorities, and they can not now be heard to say it was an ignis fatuns. They are bound by their acts, and under the evidence contained in this record, the injunction should have been made perpetual. The decree of the circuit court will therefore be reversed and the cause remanded.

Reversed and remanded.


author: IIigbee, J.

text:
    Chicago & Alton R. R. Co. v. Benjamin C. Few.
    1. Evidence.—Where appellant was suing a railroad company in case to recover damages for an injury sustained by him through its alleged negligence, it Was error to permit him to testify that he had a wife, mother, brother and sister dependent on him for support.
    2. Duty on railroad in adopting appliances nor safety of servants.—It is the duty of a railroad company to adopt all such me.ms and appliances for the safety of its servants, as experience has demonstrated to be necessary and can be safely used. But the burden of proof is upon the plaintiff, who charges negligence for not adopting a certain device, to show from a survej- of the Whole field that the means of protection could be safely adopted, and that it afforded the desired protection in one direction without the introduction of new perils in another.

      Appeal from the Circuit Court of Morgan county; the Hon. C. Epler, Judge, presiding.
    Opinion filed May 22, 1884.
    Messrs. Brown, Kirby & Bussell, for appellant;
    cited McGinnis v. C. S. B. Co., 49 Mich. 466; L. S., etc., Ry. Co. v. McCormick, 74 Ind. 440.
    Mr. W. A. Crawley and Mr. George W. Smith, for appellee;
    cited C. & I. R. R. Co. v. Russell, 91 Ill. 298; I. & St. L. R. R. Co. v. Estes, 96 Ill. 470; Wabash Ry. Co. v. Elliott, 98 Ill. 481; C. & E. I. R. R. Co. v. Rung, 104 Ill. 641; Chicago v. Stearns, 105 Ill. 554.
   IIigbee, J.

Appellee, Few, sued the railroad company in case to recover damages for an injury alleged to have been sustained by him through the negligence of the company, while employed by it as a switchman in its yard at Boadhouse, on the first day of February, 1883. The first count of the declaration charges that it was the duty of the company to block or wedge the frogs in its tracks in the yard with blocks or wedges of wood; that it failed in the performance of this duty, whereby appellee, while engaged in switching cars in said yard, and in the exercise of due care, caught his foot in one of said frogs, and was in consequence thrown upon the track, and one wheel of a flat car passed over his left arm and crushed it so that amputation became necessary. The second count charges negligence in the use of a defective automatic brake whereby appellee was injured.

A trial resulted in a verdict and judgment against the company, from which it appeals to this court and assigns for error the admission of improper evidence, the giving improper instructions in behalf of appellee, and overruling appellant’s motion for a new trial.

Against the objections of appellant, appellee was allowed to testify that he had a wife, mother, brother and sister dependent on him for support. In The City of Chicago v. O’Brennan, 65 Ill. 160, Chicago & North Western Ry. Co. v. Moranda, 93 Ill. 302, and Pittsburg,Fort Wayne & Chicago Ry. Co. v. Powers, 74 Ill. 341, it was held error to admit this evidence. These cases are decisive of this question. In the Powers case it was said by the court, “Appellan t can in no case be required to support the family of one of its employes who may be injured, even by the negligence of the servants of the company. Such a rule would be carrying the liability of such bodies beyond the liability of other persons, and would not accord with the analogies or principles of the law. And to permit such evidence would be virtually to impose that duty upon the defendant. It is impossible for us to know what portion of the verdict, in this case, was allowed, because appellee had a family. The evidence was before the jury for the purpose of enhancing the damages, and we have no doubt it produced that result. This was manifest error.” This reasoning is so conclusive of the question that we can add nothing to it.

The company is charged with negligence in not beeping blocks or wedges of wood in the frogs. It appears by the evidence that such devices had occasionally been used in the yard where the accident occurred, but they had been broken and displaced by the wheels of the locomotives and cars, and there was no block in the frog in which appellee caught his foot when he fell and received the injury complained of. No doubt had the frog been blocked with wood it would have been impossible for appellee to have caught his foot in the same; but this fact did not make it the duty of the company to introduce this device for the protection of the switchmen, if by so doing it would have materially increased the perils of its passengers or a larger class of employes in another direction. There is no statute in this State requiring the frogs of railroads to be blocked, nor was there any evidence on the trial of the cause tending to show that such a device was safe and proper to be adopted. The evidence that it would have prevented the injury to appellee did not go far enough; for so far as the jury could know, the blocks used for this purpose might be impracticable, or cause new dangers far more serious than those intended to be guarded against. In view of the fact that the only defect complained of in the frog was that it was not blocked with wood, the instruction given by the court in behalf of appellee, to the effect that it was the duty of the railroad company to furnish suitable and safe frogs, and that it was liable for all injuries sustained by reason of the use of defective frogs, must have been understood by the jury as requiring the use of these blocks. There was no other defect alleged to exist to which the instruction could refer. In this the court erred. Whether it was the duty of the railroad company to block its frogs was not a question of law to be decided by the court, but a question of fact to be found by the jury from the evidence; and in this case there was an entire lack of evidence upon which to base the instruction or to justify the court in submitting the question to the jury.

It is the duty of a railroad company in all cases to adopt all such means and appliances for the safety of its servants as experience has demonstrated to be necessary, and can be safely used. If, however, the adoption of a new device, which would afford protection against a particular danger, would introduce new dangers more serious than those it would guard against, the company could not be charged with negligence in refusing to adopt it, and the burden of proof is upon the plaintiff who charges the negligence, to show from a survey of the whole field that the means of protection could be safely adopted and that it-afforded the desired protection in one direction without the introduction of new perils in another. McGinnis v. C. S. B. Co., 49 Mich. 466; L. S. Ry. Co. v. McCormick, 14 Ind. 440.

We are also of opinion that the court erred in overruling appellant’s motion for a new trial for the reason that the verdict was not sustained by the evidence. The evidence does not show that the injury was caused by the alleged defect in the automatic brake, nor does it show, as we have seen, sufficient facts to charge appellant with negligence in not having blocked the frogs in the yard.

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

Beversed and remanded.


author: Higbee, J.

text:
    William Campbell v. Keziah M. Moore et al.
    Assignment of dower.—It is not necessary to a valid assignment of dower that legal proceedings should be instituted by either party. The person on whom the right or duty is devolved of making the assignment, may at once proceed to set apart to the widow her proportion of the estate, and if this be fairly done, it is as effectual and binding as if performed under a judgment or decree of the court. Where a party purchasing, at different times, portions of an estate of the heirs, with the heir measured off the widow’s proportion, and the widow was aware of and acquiesced in such assignment, and the purchaser made lasting improvements upon his land, the widow could not afterward sustain a bill for partition and assignment of dower against the purchaser.
    Appeal from the Circuit Court of Cass county; the Hon. C. Epler, Judge, presiding.
    Opinion filed May 22, 1884.
    Messrs. Pollard & Phillips, for appellant;
    as to assignment of dower, cited Hyzer v. Stokes, 3 B. Monroe, 117; Rich v. Kent, 7 Bush, 53; Wallis v. Smith, 2 S. & M. (Miss.) 220; Dudding v. Hill, 15 Ill. 61; Smallwood v. Bilderback, 16 N. J. 497.
    Bower may be assigned by parol: Tyler on Infancy and' Coverture, p. 632, § 430; 4 Kent’s Com. 69.
    Messrs. Ketch am & Gridley, for appellees;
    cited Simpson v. Ham, 78 Ill. 203.
   Higbee, J.

This was a bill for partition and the assignment of dower by the widow and a part of the heirs at law of William Moore, deceased, against William Campbell, the owner by purchase, from the remaining heirs of eight twelfths of the title in fee to the premises in controversy.

The bill also claims rent in behalf of the widow against Campbell, for the use and occupation of a portion of the p veinises for several years. The cause was heard on bill, answer, replication and proofs, and the court, after finding a quarantine right in the widow to retain the possession of the whole of the premises until dower was assigned, and that Campbell had occupied a part of the premises for several years, subject to such right, without assigning dower, decreed the assignment of dowrnr, and that Campbell pay to the widow for the use and occupation of the premises, the sum of $865.43.

The assignment of errors questions the correctness of this decree. The right of a widow, to continue to reside in her husband’s house after his death until her dower was assigned, was of very early origin in England. This right, however, was limited by the great charter of King John to forty days, within which time the dower must be assigned. By the statute in this State, in force when the'rights of the parties in this case accrued, it was provided: “The widow may, in all cases, retain the full possession of the dwelling house in which her husband most usually dwelt next before his death, together with the outhouses and plantation thereto belonging, free from molestation and rent until her dower be assigned.”

Upon the death of her husband, Mrs. Moore was undoubtedly entitled to the possession of the whole of the premises in controversy, and had the right to retain the same until her dower should be assigned. This right could be terminated at any time by the heir or person having the next estate of freehold or inheritance assigning to the widow her dower, or, like any other property right, it could be abandoned or forfeited by the voluntary act of the widow.

The principal defense relied upon in this case was that dower had been assigned by Campbell before he occupied the premises, and this presents the main question we are to consider.

William Moore, the ancestor, died intestate, in Cass county, April 26,1865, seized in fee of the title to two hundred and three acres of land in cultivation, upon which he resided with his family at the time of his death, leaving him surviving his said widow, Keziah, and twelve children, who were his only heirs at law. After the death of her husband, the widow con-tinned, to reside on the premises and rented the land, all of which was in cultivation, to her sons John and Bruce, who resided with her and paid her rent annually. Appellant, Campbell, owned and occupied a farm adjoining, on the east side of the premises in controversy. In the spring of 1872 Campbell purchased the interests of two of the heirs and received from them conveyances therefor, and rented two thirds of the interests so purchased to John and Bruce Moore for two years, they paying cash rent therefor. In 1876 he purchased the interest of another heir, when John and Bruce, not being willing to pay cash rent any longer, agreed with Campbell to separate the part he was entitled to from the dower right of their mother. They agreed that Campbell should have eleven acres, and the widow the balance, or five acres and eleven twelfths for the share of each heir so purchased. They then took a rope one rod long and measured off to Campbell, for his interest in the three shares so purchased by him, thirty-three acres on the east side adjoining his home farm and left the balance for the widow, adjoining her other lands. Campbell at once entered into possession of the part assigned him, and Bruce and John continued in the possession of the part assigned to the widow, as her tenants. In like manner, two more shares were purchased by Campbell in 1877 and 1878, and eleven acres for each share set off to him adjoining his other land, and the balance assigned to Mrs. Moore, adjoining hers, in the spring of 1879, and in the fall of that year he unreliased John’s interest, when Bruce, being absent, Mrs. Moore sent her son Charles to set off to Campbell eleven acres more, which he did. At the August term, 1882, of the Cass Circuit Court, a part of the heirs filed a bill against Campbell and Mrs. Moore for partition and assignment of dower. Pending this bill, Campbell bought two more shares, making in all owned by him eight twelfths of the title. Before the hearing of the cause, Bruce and Campbell, for the purpose of saving costs, agreed to get a surveyor and divide the land according to the rights of the parties, provided Campbell would still take eleven acres for each share, and allow his mother the rails on the part that should be assigned to him. In this Bruce professed to act under the direction and advice of his mother. This arrangement was carried out, the surveyor set off to Campbell, including what had been previously' assigied him, ninety acres in all on the east side of the tract, and then at the request of Bruce, set off the shares of the other heirs next to him, and assigned to the widow one third on the west side, including the house and outbuildings. In the spring following the fence was moved by some of the Moore family, off from Campbell’s land onto the line between him and the Moore land west, according to the agreetne ,t made between Bruce and himself at the time of the division.

On February 21, 1883, the widow, who was a defendant to the original bill." tiled a cross-bill asking for the assignment of her dower and for rents and profits for use and occupation, against Campbell; and upon the hearing the decree appealed from was rendered.

As each division was made, Campbell immediately took possession of the part allotted to him, and Mrs. Moore, who resided on the place all the time, occupied the balance bjr her tenants. At first she received rent from her tenants, John and Bruce, for the whole of the land, but when they rented two thirds of two shares from Campbell, she collected rent from them for the remaining third only, and as assignments Avere made to Campbell for each share purchased from time to time, she abated her claim for rent on the portion assigned to him. She lived in sight of the premises, and saw Campbell and his son make lasting and valuable improvements thereon, Avhich the court found by the decree to be of the character and Aralue following: $150 for a hedge fence; $25 for resetting a fence; $95 for tiling and ditching on the land assigned to and occupied by him; and $123.02 for taxes paid on the same. The taxes were paid together and one receipt taken therefor and adjusted between the parties each year by the widow paying one third and the owners in fee two thirds, Campbell paying according to his interest in the land. It is idle to pretend that Mrs. Moore was ignorant of these proceedings, on the contrary, the evidence is overwhelming that she knew aly about the divisions made from time to time by her sons, and acquiesced in the same by receiving rent from them from year to year for the part assigned to her for her dower only, and making no claim for rent for the part set off to Campbell.

By accepting the part assigned her for dower and permitting Campbell to occupy the balance as owner, she abandoned all right to retain the possession of the part so surrendered to him, and was not entitled to rent therefor, and this follows whether the assignment of dower was legal in all respects or not. But as between the widow and Campbell, why was not the assignment of dower, made by the parties, valid and binding?

The statute makes it the duty of the heir or person having the next estate of inheritance or freehold, to lay off and assign dower as soon as practicable after the death of the husband, and in case of failure to do so for one month, the widow may petition the court to assign her dower.

In Scribner on Dower, Yol. 2, p. 65, it is said: “ It is not necessary to a valid assignment of dower that legal proceedings should be instituted by either party. The person on whom the right or duty is devolved of making the assignment may at once proceed to set apart to the widow her proportion of the estate; and if this be fairly done, it is as effectual and binding as if performed under a judgment or decree-of the court.” And on page 66: “ Dower may be assigned by parol. The widow being entitled by common right, nothing is required but to ascertain her share; and when that is accomplished by assignment, and she has entered, the freehold vests in her without livery of seizin or writing, and this is true, not only when the dower is assigned in the manner-prescribed by law, but also when a different mode of assignment is adopted by agreement, as when a rent issuing out of the lands, or an undivided third part is allotted to the widow.” The assignment of dower in this case, as between the widow and Campbell complies with all these requirements.

The amount assigned Mrs. Moore was her full proportion; it was fairly made, she accepted and occupied it for several years without objection, and permitted Campbell to occupy the part assigned to him, in the full belief that he had performed his whole duty in the assignment of her dower; and we can see no reason, either upon principle or authority, why this was not a valid assignment of dower as between the parties. How far it was binding upon the other heirs need not he considered, as they do not complain of it, and their rights are not involved in the question now.under consideration.

Upon the case made by the bill and proof, we are of opinion the court not only erred in decreeing the payment of rents and profits to the widow, but also in ordering a new assignment of dower as between her and Campbell.

If the assignment already made and acquiesced in by the parties is to be set aside and a new assignment of dower made, the grounds for such action should be set out in the bill and sustained by proof, neither of which is done in this case.

Other questions are discussed, which in the view we have taken of the case, it is not necessary to notice here.

Decree reversed and cause remanded.

¡Reversed and remanded.


author: Higbee, P. J.

text:
    Chicago & Alton Railroad Co. v. Bridget O’Bryan, Adm’x, etc.
    1. Fellow servants.—When servants am engaged in the same line of employment, if there is a rational and necessary connection between the different parts thereof, such as necessarily brings them into frequent contact with each other in the prosecution of their work, they are co-servants.
    2. Risk oe employment—Fellow servants.—Where the machine and car shops in the same yard were under the general supervision of one man, but each had a separate foreman, and the foreman of the machine shop, wishing material, ordered the foreman of the car shop to have certain cars, which were in the way, removed, and the latter’s gang of men went to work, deceased placing himself directly in front of the bumpers, to help push, and the gang of men of the former were moving other cars', and after pushing down one, another was sent with such force as to push the first against the car in front of which was deceased, by which he was fatally injured. Held, that the accident was without fault, and the injury one the risk of which deceased assumed when he accepted the service; that deceased and the persons who caused the injury were fellow servants.

      Appeal from the Circuit Court of McLean county; the Hon. O. T. Beeves, Judge, presiding.
    Opinion filed May 22, 1884.
    Messrs. Williams, Burr & Capest, for appellant;
    as to an employe assuming the usual or ordinary risks of employment) cited C. & N. W. Ry. Co. v. Donahue, 75 Ill. 106; I. C. R. R. Co. v. Welch, 52 Ill. 183; I., B. & W. Ry. Co. v. Flanigan, 77 Ill. 365; T., W. & W. Ry. Co. v. Durkin, 76 Ill. 395; Cooley on Torts, pp. 541, 551-2.
    Where the injury is caused by the negligence of a fellow servant in the same line of employment, the common master is not liable: T., W. & W. Ry. Co. v. Durkin, 76 Ill. 395; C. & A. R. R. Co v. Keefe, 47 Ill. 108; C. & A. R. R. Co. v. Rush, 84 Ill. 570; Valtez v. O. & M. Ry. Co., 85 Ill. 500; C. & N. W. Ry. Co. v. Moranda, 93 Ill. 302.
    As to who are fellow servants: Wood on Master and Servant, §§ 435, 427, 435; Kranz v. White, 8 Bradwell, 583; C. & A. R. R. Co. v. Murphy, 53 Ill. 336; C., C. & I. C. R. R. Co. v. Troesch, 68 Ill. 545; C. & N. W. Ry. Co. v. Scheuriug, 4 Bradwell, 533; Morgan v. Ry. Co., L. R. I. Q. B. 149; Wonder v. B. & O. R. R. Co., 32 Md. 411; Slater v. Jewett, 85 N. Y. 61; Farwell v. B. & W. R. R. Co. 4 Metc. 49; Priestly v. Fowler, 3 M. & W. 1; Coon v. S. & U. R. R. Co., 5 N. Y. 492; Boldt v. N. Y. C. R. R. Co, 18 N. Y. 432; Gilshannon v. S. B. R. R. Co., 10 Cush. 228; Wright v. N. Y. C. R. R. Co., 25 N. Y., 562; Hutchinson v. Railway Co., 5 Exch. 343; Wilson v. Merry, 1 L. R. H. L. Sc. App. Cas. 326; Lehigh Valley C. Co. v. Jones, 86 Pa. St. 432; Lovegrove v. L. B. & S. R. Ry. Co., 16 C. B. N. S. 669; Barton’s Hill R. R. v. Reid, 3 Macq. H. L. Cas. 266; Simmon v. N. Y. & H. R. R. Co., 62 N. Y. 251; Whaalan v. M. R. & L. E. R. R. Co., 8 Ohio St. 249; Brown v. Maxwell, 6 Hill, 592; Foster v. M. R. R. R. Co., 14 Minn. 360; Slattery v. T. & W. Ry. Co., 23 Ind. 81; Walker v. B. & M. R. R. Co., 128 Mass. 8; Holden v. P. R. R. Co., 129 Mass. 268; Speed v. A. & P. R. R. Co., 71 Mo. 303; N. C. & St. L. Ry. Co. v. Goster (Sup. Ct. Tenn.), XI Am. & Eng. Cas. 180.

      Hr. John T. Lillard and Messrs. Fiber & Phillips, fo appellee;
    that the question whether two employes in a given case are fellow servants, is one of fact for the jury, cited T., W. & W. Ry. Co. v. Moore, 77 Ill. 217; C., B. & Q. R. R. Co. v. Gregory, 58 Ill. 284; Ind. & St L. R. R. Co. v. Morgenstern, 106 Ill. 216; Mullen v. Steamship Co., 78 Pa. St. 25.
   Higbee, P. J.

This was an action on the case brought by appellee to recover damages sustained by the next of kin of James O’Bryan, deceased, resulting from his death, charged to have been caused by the negligence of appellant’s servants.

The construction and repair shops of the railroad company at the time of the accident causing his death, were located at Bloomington, and with the grounds used in connection with them, covered nearly fifty acres of land, and employed about nine hundred men, all of whom were under the general supervision and charge of William Wilson, divided into sub-departments, known as car shop, paint shop, blacksmith shop, machine shop, boiler shop, round house, foundry and lumber yard, each of which had one foreman and some of them two, all of whom were appointed by Wilson. There were three time keepers, one in the car shop, one in the blacksmith shop and one in the machine shop, all of whom reported to Wilson at the end of each month. The machine shop was near the south end of the yard, and the ear shop toward the north end; between them was a common storeroom under a sub-superintendent, where all materials and supplies needed by any of the shops were kept under cover.

The different shops were connected by tracks. The ear shops had a gang of sixteen or eighteen men to carry materials to and from the shops as required, under a foreman named Shields, and the machine shop had a like gang under White as foreman; both foremen were under the control of Wilson. Most of Shields’ orders came from the superintendent of the car shop and those of White from the superintendent of the machine shop. The supplies used in these shops were kept in the storehouse, and those needed in the car shop were taken from the storehouse to it by Shields’ men, and those needed at the machine shop by White’s men. There were many tracks in the yard over which these gangs of men were in the constant habit of passing and re-passing, their most usual place of meeting being at or near the common storehouse, where the materials used by the shops were loaded and unloaded, as stored or removed therefrom. The track upon which the accident occurred led from the car shop past the storehouse to the machine shop; its general direction being southeast and northwest, with a grade of about fifty feet to the mile.

On the day in Question, Wilson wanted a load of car wheels taken from immediately south of the storehouse to the foundry, which was almost directly west from the car house, and ordered Shields to have the car moved down to the place where it was to be unloaded and then unload it. Shields accordingly ordered seven of his- men to go and do the work, among whom was O’Bryan. They approached the car from the west. The first man who came up was Cunningham, who took his place upon the east side of the car; then two others came and took their positions to the right of the bumper; then O’Bryan exactly in front of the bumper; then three others behind the car and to the left of the bumper.

Just before this, White had sent some of his men, under one of his workmen named Kinealy—who was a common laborer, receiving the same pay as the rest—to get some wheels, fastened together by their axles, upon this same track, farther south than the car where O’Bryan was. Three empty cars were in the way and had to be moved north before these wheels could be put upon the track. One car had been sent down and a brake slightly set on it by Beady, one of White’s men, before O’Bryan and those with him had taken- their positions. This car stopped but a few feet, perhaps from three to five feet, from the car O’Bryan’s gang was to move. Those with Kinealy then pushed the second car down in like manner and had started for the third car. This second car going down, struck the first car with force sufficient to push it against the car O’Bryan was pushing, so that O’Bryan was caught between the bumpers and sustained injuries from which he died two days afterward. None of the other workmen with O’Bryan were hurt, and he would not have been hurt had he not been standing between the bumpers.

The trial of the cause resulted in a verdict and judgment against the railroad company from which it appeals to this court, and assigns numerous errors.

There was but little or no conflict in the evidence as to the principal facts of the case. Did they, in any reasonable view that can be taken of them, justify the verdict? Waiving all question as to the degree of negligence, if any, attributable to deceased in voluntarily placing himself directly between the bumpers of the cars where he received his injury, we are of opinion that the ease made by the proofs discloses no such omission of duty or wrongful act on the part of appellant’s servants as to render it liable for the death of deceased. When White’s men went between the cars, where deceased received his injury, they neither saw nor heard Kinealy’s men. The approaching car moved so slowly and noiselessly that the men did not hear it even when it struck the car just back of them, and within from three to six feet of the car they were working at.

Kinealy’s men were moving the cars in the usual manner of moving them on the tracks in the yard; they saw no one about the cars below, nor had they any reason to suspect there was any person on the track of near it when they started either of the cars. The distance the cars had to go before they would be stopped by striking the car below was probably not exceeding two hundred feet; the grade was slight; the cars moved slowly, giving ample time for any one who saw them to get out of their way; the track was in plain view between them-and the cars below, and no danger was apparent or could have been foreseen by a reasonably prudent person. The manner of moving the cars was not dangerous in itself, certainly not more so than if Kinealy’s men had been behind the car pushing it to the place where it was wanted.

The act of moving the cars was not necessarily or apparently dangerous to persons using ordinary care; the accident must therefore be regarded as without fault, and the injury resulting therefrom, as one the risk of which deceased assumed when he accepted the service, and for which the law affords no remedy. Addison on Torts, Sec. 3; Cooley on Torts, ps 530; T. W. & W. Ry. Co. v. Muthersbaugh, 71 Ill. 572.

It is next contended that the relation of the parties who caused the injury to O’Bryan was that of fellow servants in the service of a common master in the same line of employ ment, and that therefore no action lies for the injury.

The briefs of the parties contain a very full and elaborate review of the authorities upon the subject of who are fellow servants within the meaning of the law in this State, and much stress is placed upon certain expressions used in the opinion of the court in the case of C. & N. W. Ry. Co. v. Moranda, 93 Ill. 302. We have again carefully examined that case as •well as all the cases so ably reviewed by it, and will content ourselves with the announcement of our conclusions without any extended discussion of the question. If there is, as is claimed, a wrant of harmony in the numerous cases upon this subject, it should be corrected in the court of last resort, not here. It is not our province or pleasure to indulge in any discussions or criticisms upon that subject. Our only duty is to extract the true rule from the numerous decisions and apply it to the case in hand.

After a full and careful examination of the facts developed by the evidence in the case, and of all the authorities referred to, applying what is said by the learned judge in the Moranda case to the facts of the case under consideration, and in view of the full indorsement in that case of the doctrine of the case of C. & A. R. R. Co. v. Murphy, 53 Ill. 336, we are very clearly of opinion that the deceased and the persons who caused the injury resulting in his death were fellow servants of a common master, engaged in the same line of employment.

The question of who are fellow servants, as well as that of negligence, is held by the Supreme Court to be a question of fact to be determined by the jury from the evidence. I. & St. L. R. R. Co. v. Morgenstern, 106 Ill. 216.

And in this view the verdict of the jury ought not to be disturbed by this court unless it is so manifestly unsupported by the evidence as to show that injustice has been done; but in a case where the main facts are uncontroverted and we are fully convinced that in no view of the case made can the plaintiff rightfully recover, and so long as it is made our duty by law to review the facts, and more especially since that right has been taken from the Supreme Court, we must not hesitate to do our duty and reverse the judgment, notwithstanding the fact that the jury saw the witnesses on the stand and had better means of giving proper weight to their evidence than we have.

On the trial of the cause the court, on behalf of the plaintiffs below, gave to the jury the following instruction:

“Ton are instructed that even though two servants may be employed by the same master, yet if they are not by their usual duties brought into habitual association, and are not at the particular time in question co-operating with each other in any particular business or work, they are not fellow servants in the same line of employment.”

The terms “brought into habitual association” and “cooperating with each other in any particular business or work” are so general and vague that they would convey to the mind of a juror unlearned in the law a very indefinite idea of the law of fellow servants, and as applied to the facts of the case before the jury, could hardly have failed to mislead them.

To co-operate in a particular work would most likely be understood as requiring the parties to be engaged in doing exactly the same work at the same time and place and under the same foreman. In all such work there must necessarily be division of labor among servants; one does one thing and another a different thing. In performing different parts of the work it is not uncommon for the servants to work under different overseers or foremen, but all are alike the servants of a common master; and when engaged in the same line of employment, if there is a rational and necessary connection between the different parts thereof, such as ntecessarily brings the servants into frequent contact with each other in the prosecution of their work, they are co-servants. We do not understand this view of the law to be in conflict with the doctrine of the Moranda case. On the contrary it is fully supported "by the Murphy case there quoted and approved as unquestionable law. Again, long after the decision of this case the Supreme Court, in an opinion filed in the Morgenstern case, supra, held that a car inspector who was injured while in the discharge of his duties, and a baggageman who caused the injury while wheeling baggage, both working in the same yard, were fellow servants, notwithstanding their duties were essentially different and one was employed by and reported to the master mechanic and the other was employed by and reported to the superintendent. And the Moranda case was referred to as authority for so holding. Subsequently a rehearing was granted and the case finally de-cided on other grounds, but the opinion in this respect was not changed or modified, and may therefore be considered as correctly expressing the opinion of the court upon this question.

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

Reversed and remanded.


text:
    William H. Shinn et al. v. Horace B. Shinn et al.
    1. FORECLOSURE—PURCHASE BY MORTGAGOR—FRAUDULENT, HELD A Redemption.—When, for the purpose of defeating a junior mortgagee or creditor, a prior mortgage is foreclosed and the property is bought in at the foreclosure sale with money furnished by the mortgagor, a court of equity has the undoubted right to defeat the intended fraud by treating the holders of the legal title, who are mere volunteers having pa'd nothing for it, and those holding under them with notice of the mortgagees' rights, as trustees of the insolvent mortgagor, and subject the title in their hands to the rights of his mortgagee; or if necessary, to prole t the rights of the mortgagee against the title bought with the money of the mortgagor and held in trust for him, to liold the payment of his money for the certificate of purchase as a redemption from the foreclosure sale.

      2. Parties.—The purchasers of a deceased mortgagee’s interest, not his executor, are the representatives of the rights secured to the mortgagee, and are the proper persons to be made parties to a foreclosure proceeding- under an adverse mortgage.
    3. Title—Notice.—Title purchased with notice of adverse claims will not be rendered invalid thereby, if derived from a bona fide owner without notice.
    Error to the Circuit Court of Moultrie county; the Hon. J. W. Wilkin, Judge, presiding.
    Opinion filed May 22, 1884.
    Mr. S. M. Smyser and Messrs. Craig & Craig, for plaintiffs in error;
    as to res adjudieata, cited Kinney v. Knoeble, 51 Ill. 112.
    A purchaser in ignorance of any fraud will be protected: 1 Story on Equity Jurisprudence, §§ 381, 434; 3 Washburn on Real Property, 299; Dennis v. McCagg, 32 Ill. 429; Gavagan v. Bryant, 83 Ill. 380; Peck v. Arehart, 95 Ill. 117; Bradley v. Luce, 99 Ill. 234.
    As to purchase Us pendens: 2 Blackford R. 259; Stone v. Connelly, 1 Met. (Ky.) 654; Jones v. Lusk, 2 Met. (Ky.) 356; Clarkson v. Morgan, C. B. Mon. 441; Gates v. Franklin Savings Bk., 85 Ill. 256; Fergus v. Woodworth, 44 Ill. 385; Wade on Notice, § 336.
    It is not proper in a foreclosure suit to try a title paramount to that of the mortgagor. The only proper object of the suit is to bar the mortgagor and those claiming under him: Pelton v. Farmin, 18 Wis. 234; Summers v. Bromley, 28 Mich. 125; Rathbone v. Hooney, 58 N. Y. 463; Merchants Bank v. Thompson, 55 N. Y. 7; Brundage v. D. & F. (Miss.) 60; San Francisco v. Lawton, 18 Cal. 465; Helsey v. Abbott, 13 Cal. 609.
    Messrs. Eden, Clark & Houser, for defendant in error;
    cited Dunlap v. Wilson, 32 Ill. 523; Oliver v. Piatt, 3 How. (U. S.) 333.
   Higbee, J.

This was a bill filed in. the Moultrie Circuit Court by Horace B. Shinn against Clement L. Shinn, William II. Shinn, Mary A. Kenney, Hezekiah M. Aslmiare, Jacob Zimmerman, administrator of H. J. Ashmore, and Albert C. Burnham, as trustee of Austin M. Ward, defendants, to foreclose a mortgage executed to the said Horace B. by Clement L. on January 6, 1865, to secure the sum of $5,000.

Prior to the execution of this mortgage the parties thereto, Horace B. and Clement L. Shinn, had been joint owners of the mortgaged premises, having purchased the same from one Ebenezer Hoyes on the 13th day of September, 1864, on which day they executed to him a mortgage on said premises to secure the purchase money amounting to $3,000, which was duly recorded on the day of its execution.

At the Hovember term, 1869, of the Moultrie Circuit Court, a decree of foreclosure was rendered on the Hoyes mortgage in favor of one Thomas B. Trower, who had purchased the same, against the mortgagors, Clement L. and Horace B. Shinn, both of whom were parties and had been served with process. A sale of the mortgaged premises was made under this decree by the master in chancery, and Trower became the purchaser, and subsequently sold and assigned his certificate of purchase to William H. Shinn and Mary A. Kenney, in consideration of $5,140.91, to him paid; and on the 25th day of March, 1871, the time of redemption having expired, they received a deed from the master therefor, which was recorded on the same day.

The bill in the case now under consideration seeks to subject the title of William H. Shinn and Mary A. Kenney thus acquired, to the payment of a mortgage debt due from Clement L. to Horace B. upon the ground, as alleged in the bill, that they purchased the same with full knowledge of the rights of the complainant, Horace B., and paid for it with the money of the said Clement L. Shinn.

Answers were filed to this bill by the defendants, except Burnham, who was defaulted. Clement L. Shinn also filed a cross-bill asking that an account be taken of certain partnership accounts alleged to exist between him and the said Horace B. Shinn, and that the amount found to be due him be applied in satisfaction of his mortgage debt to Horace.

It further appears that on June 25, 1872, while the title of record stood in the names of William II. Shinn and .Mary A. ICenney, they borrowed from one Austin M. Ward the sum of $5,000, giving their note payable in five years with interest at the rate of ten per cent, per annum therefor, and to secure the same, executed to Albert C. Burnham a trust deed in the usual form upon the premises in controversy, which was then recorded.

On a former hearing of the cause the court found as to the rights of William H. Shinn, that the title conveyed to him was purchased and paid for with the money of Clement L. Shinn; that the conveyance was fraudulent as against the rights of complainant, and that he held the title by him so acquired in trust for Clement L., subject to his mortgage to Horace B., and as to such interest the mortgage was foreclosed by the decree. The cross-bill of Clement L. was dismissed; the court found that Mary A. Kenney was an innocent purchaser without notice; that her rights were superior to those of the complainant, and that as such purchaser she was entitled to 120 acres of the lands in controversy, and the said William H. Shinn to 280 acres, subject to the lien of complainant’s mortgage.

From this decree an appeal was prosecuted to the Supreme Court, where the same was reversed and the cause remanded at the January term, 1879, and reported as Shinn et al. v. Shinn et al., 91 Ill. 483.

That court held that the cross-bill of Clement L. was properly dismissed; that the decree of the trial court was erroneous and must be reversed for two reasons; First, because Austin M. Ward was not only a proper, but a necessary party to the bill. Second, because the conveyance to William H. Shinn and Mary A. Kenney, vested each with an undivided moiety of the whole, and not to separate and distinct interests in proportion to the money paid by them, and that the decree finding that Shinn owned and was entitled to 280 acres and Mrs. Kenney to onty 120, was not in accordance with the rights of the parties. In the opinion of the court, satisfaction was expressed with the finding of the trial court that Mrs. Kenney was a bona fide purchaser for a valuable consideration, and dissatisfaction with the finding that the money of Clement L. paid for the part of the premises conveyed to William EL. Shinn. It was said by the court that the. evidence did not sustain this conclusion. The decree was reversed and the cause remanded for further proceedings jn consonance with the opinion.

On a second hearing the decree was the same as the first, except as to the interests of William H. Shinn and his sister, Mrs. Kenney, which were made to conform to the view’s of the Supreme Court, by giving to each a moiety, and from this decree the present writ of error is prosecuted to this court.

It is now contended by counsel for plaintiffs in error, that the Supreme Court having found, as stated in the opinion, that the evidence did not sustain the allegation that the conveyance from the master to William H. wras paid for by the money of his father, Clement L. Shinn, that question was res adjudicata, and the circuit court erred in not so treating it, and in receiving additional evidence on that subject.

This contention is not well founded. Under the Practice Act., the Supreme Court has the power in case of partial reversal to give such judgment or decree as the case may require or to remand the same for further proceedings, either with or without instructions, for the guidance of the trial court, which are obligatory on the inferior court and must be obeyed by it in all further proceedings had in the cause; but when, as here, the cause is remanded for a new trial in consonance with the opinion of the appellate court, without any specific directions, what was said by that court in reference to the weight of evidence must be understood as applying only to the facts as disclosed in the record then being considered, and only the legal principles announced are binding on the inferior court, and are to be observed in the future trial of the cause. It is the duty of the trial court, when justice demands it, to permit amendments to the pleadings and the taking of additional evidence, and the case should be tried upon all the proof in the record at the hearing, the new as well as the old. As vras said in Chickering v. Failes, 29 Ill. 302, it by no means follows that other facts may not be proved, within the principle announced, which will obviate the objections to granting the relief sought, or to the allowance of the defense interposed. As sustaining the views here expressed, see also Rising v. Carr, 70 Ill. 597; Hugh v. Harvey, 84 Ill. 310; Blatchford v. Newberry, 100 Ill. 484.

The additional evidence admitted by the court on the new trial of the cause, so far as the purchase of William H. Shinn was concerned, tended most strongly to sustain the charge in the bill that it was paid for by the money of his father, and it was properly admitted and considered by the court.

It is next insisted by plaintiffs in error, that William H. Shinn and Mrs. Ivenney, and those holding under them, represent a prior adverse title which can not be litigated in this suit, and numerous authorities are referred to to sustain the doctrine that in a suit to foreclose a mortgage, one who holds adversely to the title of the mortgagor and prior to the mortgage can not be made a party defendant for the purpose of trying the validity of his adverse claim of title. The correctness of the rule contended for is not controverted, but it has no application to the case under consideration. It is true, as contended, that the deed from the master in chancery to William H. Shinn and his sister, relates back to the date of the Noyes mortgage, which was anterior to the date of the mortgage sought to be foreclosed, but the bill does not attack the validity of the title under the Noyes mortgage. Its scope and object is not to litigate the validity of that title but to postpone it to the rights of Horace B. Shinn, under his mortgage from Clement L. Shinn, for the reason, as alleged, that it was purchased and paid for with the money of Clement L., and the conveyance made to his children. If these allegations are true, a court of equity has the undoubted right to defeat the intended fraud by treating the holders of the legal title, who are mere volunteers having paid nothing for it, and those holding under them with notice of complainants’ rights, as trustees of the insolvent mortgagor and subject the title in their hands to the rights of his mortgagee; or if necessary to protect the rights of the mortgagee against a title bought with the money of the mortgagor and held in trust for him, we see no reason why the court should not hold the payment of his money for the certificate of purchase as a redemption from the foreclosure sale of the Noyes mortgage.

The bill is very defective and meager in its statement of facts, but it is not obnoxious to the objection under consideration.

It is also contended by plaintiffs in error that the decree must be reversed for want of proper parties to the suit.

As already stated, the Supreme Court held that Ward was not only a proper but a necessary party to the suit, and reversed the decree for the reason, among others, that he was not made such; and under this ruling, unless he or those holding his interest and representing his rights were made parties before the final trial of the cause, the decree must again be reversed.

While the case was pending in the Supreme Court, Austin M. Ward died, and after it was remanded, but before any steps were taken toward making new parties, Burnham, the trustee named in the deed of trust, by virtue of the power therein contained, at the request of the executor of Austin 1VI. Ward, default having been made in the payment of the money thereby secured, sold the premises to- Julian J. Beall for $4,100, cash, being more than sufficient to pay the amount remaining due said estate, and on September 53, 1879 (the day of the sale), the said trustee ¡executed and delivered to Beall, the purchaser, a deed, and thereupon Beall conveyed by deed to Isaac B. Craig. Both of said deeds were recorded on the day they were executed, September 2, 1879. On the 4th day of September, 1879, two days after said deeds had been recorded, the complainants, by leave granted by the judge, at chambers in vacation, filed an amendment to the bill, making Delia B. Ward executrix of Austin M. Ward, deceased, a party defendant to the suit. Before she was made a party she had received the money due the estate by the sale of the land under the deed of trust. She had no covenants to protect, neither she nor the estate she represented, had any interest in the subject-matter of the suit, and she was not a proper party to the bill.

The title held under the trustee’s sale related back to the date of the trust deed, and the owners thereof were possessed of all Ward’s former rights, and were the only persons interested in sustaining their validity. They, not Ward’s executrix, were the representatives of the rights secured to Ward, and as such, entitled to their day in court, and the court erred in proceeding to a final hearing without making them parties.

To enable the court to control the legal title, Burnham, the trustee, was a proper party to the bill; he had no interest in the trust property, nor was he bound to defend the interests of the cestui que trust/ his default therefore established nothing prejudicial to the rights of the real parties in interest. Fergus v. Woodworth, 44 Ill. 385; Bayard v. McGraw, 1 Bradwell, 143; Clark v. Manning, 4 Bradwell, 653; Perry on Trusts, Sec. 520; Gates v. Franklin Savings Bank, 85 Ill. 256; McGraw v. Bayard, 96 Ill. 146; Clark v. Manning, 95 Ill. 580.

* Before the trial of the cause, David K. Morrison and Cora Ik Shinn presented a petition to the court, stating that they were the owners by purchase of the title conveyed by Burn-ham to Beall and by him to Craig, and asking leave of the court to be permitted to appear and defend the same. This the court refused, and proceeded to decree that the lien of complainant to the one half of the premises held by William H. Shinn was prior and superior to the lien of the Ward deed of trust, under which petitioners claimed title. In this we think the court erred.

It is claimed by defendant in error that the holders of this title purchased pending the suit, and that they were chargeable with both actual and constructive notice of the rights of complainant. They claimed through Ward, who as a mortgagee must be treated as a purchaser. At the time he loaned his money to William H, Shinn and Mrs. Kenney, there Was no suit pending; the title of record stood in their names; their father professed to be in possession as their tenant, and we are unable to discover by the record before us- that Ward, when he parted with his money and took the deed of trust to secure it, had any notice that the land had been paid for by the money of their father, or that he had any rights adverse to their title. And even if the present owners of the title through the Ward trust deed purchased with notice, that would not render their title invalid if they derived it from a hona fide owner without notice. Bradley et al. v. Luce et al., 99 Ill. 234.

But whatever the rights of the complainant in the bill as against the holders of this title may be, no binding decree can be made until they are afforded an opportunity to be heard in defense of their rights.

Decree reversed and cause remanded.


author: Pee Curiam.

text:
    Wabash, St. Louis & Pacific Ry. Co. v. Maria Peterson.
    Bill oe exceptions.—As what purports to be a bill of exceptions in this case is neither signed nor sealed by the judge who tried the cause, and is otherwise irregular, it is fatally defective.
    Appeal from the Circuit Court of Mason county; the Hon. C. Epleb, Judge, presiding.
    Opinion filed July 3, 1884.
    Mr. William Brown and Mr. W. H. Campbell, for appellant.
    Mr. H. R. Northrup and Mr. John W. Pitman, for appellee.
   Pee Curiam.

In this case the clerk of the circuit court in making up the transcript of the record has copied into the same that which purports to be a bill of exceptions, but upon inspection of the same we find it so entirely defective in its material parts that we can not regard it as part of the record. It purports to contain all of the evidence introduced upon the trial, the instructions given on the part of both parties, and those asked by appellant but refused by the court. At this point it abruptly terminates without giving any history of the proceedings upon motion for a new trial or any exceptions to the ruling of the court in overruling the same or in rendering judgment. Neither is it signed nor sealed by the judge who tried the cause. The latter are fatal objections. James v. Sprague, 2 Scam. 55; Miller v. Jenkins, 44 Ill. 443; Hill v. Johnson, 12 Bradwell, 255; Ill. Cent. R. R. Co. v. Gilchrist, 9 Bradwell, 135; Gale v. Rector, 10 Bradwell, 262.

There being no bill of exceptions in the record we are precluded from examining the errors assigned by appellant. The judgment of the circuit court will therefore be affirmed.

Affirmed.


author: Per Curiam.

text:
    Ida B. Parker v. Tirzah Burnham.
    As the evidence objected to in this case was properly admitted, and no other exception has been taken and preserved, as required by section 61 of the Practice Act, this court can not inquire whether the finding of the court below is Sustained by the evidence oi not.
    Appeal fyom the Circuit Court of Mason county; the Hon. Lyman Laoey, Judge, presiding.
    Opinion filed July 3, 1884.
    Messrs. Harts & Cochran and Mr. I. B. Brown, for appellant.
    Mr. G. W. Ellsberry, for appellee.
   Per Curiam.

This cause was tried by the court without the intervention of a jury, and the only exception taken to the rulings of the court, as appears by the bill of exceptions, was to the admission of certain evidence in behalf of appellee.

The evidence objected to is set out in the bill of exceptions, and we perceive no reason why the same was not properly admitted, nor is any objection to the same pointed out in appellant’s brief. i

Ho other exception having been taken and preserved, as required by section 61 of the Practice Act, we can not inquire whether the finding of the court is sustained by the evidence or not. Brooks et al. v. The People, 11 Bradwell, 422.

Judgment affirmed.