text:
    Bess A. Cousley, Administratrix, Appellant, v. Chicago & Alton Railroad Company, Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Bluford Wilson and William Cotter, Receivers of Chicago, Peoria & St. Louis Railroad Company, and Illinois Terminal Railroad Company, Appellees.
    1. Commerce, § 4

       — when engagement in interstate by railroads is question of fact. Where railroad companies do both an interstate and an intrastate business, it is a question of fact as to whether at a particular time said railroad companies are engaged in interstate or intrastate commerce.
    2. Master and servant, § 98* — when Federal Employers’ Liability Act applies. The Federal Liability Act only applies as between employer and employee.
    3. Workmen’s Compensation Act, § 2* — when carrier by land not required to file notice of election to be governed by act. A carrier by land is not required to affirmatively file a notice of election to be governed by the provisions of the Workmen’s Compensation Act and to pay compensation thereunder in order to be entitled to be subrogated under the provisions of section 29 of that Act [Callaghan’s 1916 St. Supp. If 5475(29)], as such carriers are conclusively presumed to have so elected under the provisions of section 2 of that Act, Laws of 1913 [Callaghan’s 1916 St. Supp. if 5475(2)], providing that such shall "be so presumed unless notice of election to the contrary is filed with the Industrial Board and given the employee.
    Appeal from the City Court of Alton; the Hon. Maurice R. Sullivan, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed October 24, 1917.
    Samuel A. Harper and William P. Boynton, for appellant.'
    J. J. Brenholt, H.. S. Baker, Keefe, Hadley & BAXTER-and C. E: Pope, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

This is an action on the case brought in the City Court of Alton by appellant as administratrix of the estate of Ben C. Cousley, deceased, to recover damages for the death of said deceased, alleged to have been occasioned by the negligence of appellees. The declaration as finally amended alleged, among other things, that appellees operated certain railroad switching tracks in said City of Alton-adjacent to the mill of the Standard-Tilton Milling Company, where appellant’s intestate was employed; that said tracks were negligently and carelessly built dangerously near said mill building; that it was impossible for appellant’s intes,tate to perform his duties' without occasionally going across and upon said tracks; that appellees knew of this practice and acquiesced therein, and that it became the duty’of appellees to warn appellant’s intestate of the operation of its cars on said track; and that while said intestate was rightly upon said track, and while in the exercise of due care for his own safety, appellees carelessly and improperly drove their switch engine, causing said car to strike said intestate, forcing him against a certain bumper post, crushing him and thereby causing his death.

The declaration further alleged that appellees had not elected to be bound by the provisions of the Workmen’s Compensation Act and had not filed notice of an election to provide and pay compensation thereunder to their employees, and that appellees were at the time of the accident engaged in interstate commerce. To this declaration a plea of the general issue was filed.

At the close of the evidence for appellant, on motion of appellees, the court directed a verdict in favor of appellees and against appellant in bar of action and for costs. To reverse said judgment this appeal is prosecuted.

The record discloses that appellees have a joint switching arrangement for the switching of cars along the levee at Alton where appellant’s intestate was working when injured. The record further discloses that a switch called the'“wheat track” extended along the south or levee side of said mill property and that south of this track were a number of other switches which were used for placing cars to be loaded; that at or near a doorway in the elevator owned by said Milling Company was a double pulley fastened to the floor through which a wire cable was run. This cable was used by said Milling Company in placing cars for loading and unloading on said tracks. On the morning in question, appellant’s intestate was working with certain men on the levee tracks placing cars. At that time there were three cars on the “wheat track” and in going to the elevator to adjust the cable, which had in some way become entangled, appellant’s intestate passed between the north car and the bumper post which stood at the end of the track and near said elevator door. After adjusting the cable, appellant’s intestate in returning was caught between said car and the bumper post. The switching crew of appellees had been directed by the foreman of the Milling Company to remove said three empty cars from said wheat track. In making the coupling to do so, they bumped or shoved said ears northward and caught-appellant’s intestaté between the rear car and the bumper post, crushing him so severely that he died the next day.

The record further discloses that appellant’s intestate and said Milling Company were operating under the Workmen’s Compensation Act at the time of said, injury and that said Milling Company had paid compensation under said act to appellant as such administratrix in accordance therewith.

It is contended by appellant that appellees were engaged in interstate commerce and that appellant’s right of action is in no way affected by the provisions of the Workmen’s Compelisation Act, and that the right of action against appellees, if any, has not been subrogated to the Standard-Tilton Milling Company, the employer of said deceased. In support of this contention appellant says that some of the cars which were being switched at the time of the injury to appellant’s intestate were cars in which wheat had been shipped from points in Missouri and Nebraska.

Where, as in this ease, railroad companies do both an interstate and intrastate business) it is a question of fact as to whether at a particular time said rail-' road companies are engaged in interstate or intrastate commerce. Illinois Cent. R. Co. v. Behrens, 233 U. S. 473 [10 N. C. C. A. 153]; Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556; Chicago, B. & Q. Ry. Co. v. Harrington, 241 U. S. 177 [11 N. C. C. A. 992], and Chicago, R. I. & P. Ry. Co. v. Industrial Board of Illinois, 273 Ill. 528.

In Chicago, B. & Q. Ry. Co. v. Harrington, supra, the court in discussing this question at page 179 says: “As the question is with respect to the employment of the decedent at the time of the injury (Illinois Cent. R. Co. v. Behrens, 233 U. S. 473, 478, 10 N. C. C. A. 153), it is not important whether he had previously been . engaged in interstate commerce, or that it was contemplated that he would soon he so engaged after his immediate duty had been performed.”

In this case the cars that were being moved were empty cars and they were being moved to other switch tracks at the instance of the Milling Company, and for its convenience. There is nothing in the record to disclose what was to be done with these cars later on. In other words, at the time of the injury, which is made the important time under the above authorities, there is nothing in the record to show that appellees were then engaged in interstate commerce. Appellant is apparently of the opinion that the Federal Employers ’ Liability Act in some way affects this case and her rights as such administratrix. We do not so understand said act. The Federal Employers’ Liability Act only applied as between employer and the employee, and it is not contended in this case that appellant’s intestate was an employee of appellees. The record discloses that he was solely in the employ of said Milling Company and was in the performance of his duties as such at the time he received his injuries.

In Shanks v. Delaware, L. & W. R. Co., supra, the court at page 557 says: “In so far as its words are material here the Employers’ Liability Act declares that ‘Every common carrier by railroad while engaging in commerce between any of the several States, * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce’ if the injury results in whole or in part from the negligence of the carrier or any of its officers, agents or employees. Thus it is essential to a right of recovery under the act not only that the carrier be engaged in interstate commerce at the time of the injury, but also that the person suffering the injury be then employed by the carrier in such commerce. And so it results where the carrier is also engaged in intrastate commerce, or in what is not commerce at all, that one who, while employed therein by the carrier, suffers injury through its negligence, or that of some of its officers, agents or employees, must look for redress to the laws of the State wherein the injury occurs, save where it results from the violation of some federal statute, such as the Safety Appliance Acts.”

•The next question which arises under the assignment of errors is as to whether appellant is entitled to maintain an action against appellees as intrastate carriers. Appellant concedes that if appellees were not engaged in interstate commerce and had filed a notice with the Industrial Board to the effect that they had elected to pay compensation under the Workmen’s Compensation Act and to be governed by it, that they would not then be liable to appellant for the reason that under the provision of section 29 of said Act [Callaghan’s 1916 St. Supp. Tf 5475(29)'], the Milling Company, having paid compensation to appellant under said act would be subrogated to the rights of appellant to the extent of the amount paid by said Milling Company on the death of said intestate. It is insisted, however, that before appellees would be entitled to be so subrogated they must affirmatively file a notice of election to be governed by the provisions of said act and to pay com-' pensation thereunder.

We do not so construe said act. Section 2 of the Compensation Act, Laws of 1913 [Callaghan’s 1916 St.' Supp. 5475(2)], provides as follows: “Every employer enumerated in section 3, paragraph (b), shall be conclusively presumed to have filed notice of his election as provided in section 1, paragraph (a), and to have elected to provide and pay compensation according to the provisions of this act, unless and until notice in writing of his election to the contrary is filed with the Industrial Board and unless and until the employer shall either furnish to his employee personally or post at a conspicuous place in the plant, shop, office, room or place where such employee is to be employed, a copy of said notice of election not to provide and pay compensation according to the provisions of this act; which notice of non-election, if filed and posted as herein provided, shall be effective until withdrawn; and such notice of non-election may be withdrawn as provided in this act.”

Paragraph “b” of section 3 [Callaghan’s 1916 St. Supp. j[ 5475(3)] above referred to includes “Carriers by land.” It therefore follows that appellees, being carriers by land so far as engaged in intrastate commerce, are conclusively presumed to have elected to be governed by the provisions of the Workmen’s Compensation Act, it being conceded that they have not filed notice of an election not to be governed by the provisions of said act.

In Diets v. Big Muddy Coal & Iron Co., 263 Ill. 480 [5 N. C. C. A. 419], the Supreme Court in discussing the provisions of this statute at page 486 says: “It was manifestly the intention of the Legislature to make the act applicable to all employers within the enumerated employments, unless and until notice in writing of their election to the contrary is filed with the State Bureau of Labor Statistics. All of the employees to whom the act applied were likewise automatically made subject to the law. Both the employer and the employee in the specified employments became subject to the act without any affirmative action upon their part. The elective feature of the act is to be exercised to avoid being governed thereby, and not to cause the act to be applied in any given case. Section 1 provides that if the employer shall elect not to provide and pay the compensation provided by the act he shall lose his common-law defenses. It will be noted that it is a negative election, and not an affirmative election, that is to be exercised both by the employer and the employee. When the entire scope of the legislation is considered, it is manifest that the Legislature intended that the act should be effective as to all employers in the specified employments, and their employees, unless the notice prescribed was given. ’ ’

It therefore follows that appellant is not entitled to maintain this action, as under the provisions of section 29 of the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. [[ 5475(29)] the Milling Company, if any one, would be entitled to maintain an action against appellees.

Finding no reversible error in the record the judgment of the trial court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Boggs

license: Public Domain

text:
    Anna Mary Radloff, Appellee, v. Edward F. Radloff, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Marion county; the Hon. .Thomas M. Jett, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed October 24, 1917.
    Statement of the Case.
    Action by Anna Mary Radloff, plaintiff, against Edward F. Radloff, defendant, to recover the proceeds of the sale of plaintiff’s undivided one-fourth interest in certain premises which she inherited from her brother and her distributive share in the latter’s personal estate collected by defendant pursuant to power of attorney from plaintiff. From a judgment for plaintiff for $806, defendant appeals.
    Charles H. Holt, for appellant.
    Jacob Zemmerman and Chaeee, Chew & Baker, for appellee.

      Abstract of the Decision.
    1. Pbincipal and agent, § 62

       — when certified copy of proceedings for appointment of a conservator of principal is admissible in action to recover collected money. Where plaintiff, in an action to recover money belonging to her and collected and held by defendant, offered in evidence without objection a certain certificate signed by defendant acknowledging possession of such money and agreeing to pay same to plaintiff when certain troubles between her and other heirs of her brother were settled and also, over defendant’s objection, a certified copy of certain proceedings for appointment of a conservator for plaintiff, which were the troubles referred to in said certificate, showing that the conservator appointed in such proceedings had been removed and that plaintiff’s rights in her property and to its possession and control were restored to her, held that the court properly admitted the record of the proceedings in connection with the certificate and limited its effect to showing the troubles mentioned in the certificate were ended.
    2. Evidence — when testimony as to evidence in behalf of defendant in other proceedings is admissible. Testimony by a court reporter with reference to evidence given by defendant at a trial of proceedings for the appointment of a conservator for plaintiff that defendant had collected plaintiff’s money and had not turned same over to her, held properly admitted, in an action by plaintiff to recover such money, notwithstanding the defendant had not yet testified in such action, as it was not offered for his impeachment hut as tending to show his indebtedness to plaintiff.
    3. Pbincipal and agent, § 63* — when evidence sustains verdict for plaintiff in action against agent for money collected. The verdict for plaintiff, in an action to recover plaintiff’s money collected and held by defendant, plaintiff’s son, held not against the manifest weight of the evidence, where defendant and four other witnesses, his sisters and brothers-in-law, testified to a certain conversation between plaintiff and defendant to the effect that plaintiff then told defendant she would give him the money and for him to take it, and plaintiff, alone, testified she had no such conversation and made no such promise, and where it appeared some of these witnesses testifying to such conversation had been petitioners in a petition to have a conservator for plaintiff appointed.
    4. Damages, § 207* — when instruction on determination of is

      not erroneous. An instruction stating that “if from the evidence and the instructions of the court you find, etc.," given with reference to the measure of damages in the event the jury should find for the plaintiff, held to be in the usual form and not erroneous.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

5. Appeal and ebbob, § 812 — how language used in argument of counsel must he preserved in hill of exceptions. Language claimed to have been used in opening and closing arguments of counsel and excepted to cannot be preserved in the record by inclusion in the argument of a motion for a new trial, but the bill of exceptions must set forth the language used in its proper place before such, exception can be considered.


author: Mr. Justice Higbee

text:
    Andrew Helman et al., Appellees, v. Royal Neighbors of America, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Williamson county; the Hon. Robert T. Cook, Judge, presiding. Heard in this court at the March, term, 1917.
    Reversed and remanded.
    Opinion filed October 24, 1917.
    Statement of the Case.
    Action by Andrew Helman, individually, and as guardian and next friend of Ada Marie Kupfer, a minor, plaintiffs, against the Royal Neighbors of America, a corporation, defendant, to recover the amount claimed to be due to plaintiffs as beneficiaries by the terms of a certain benefit certificate for $500, issued by defendant upon the life of Anna Helman, the wife and mother of plaintiffs. From a judgment for plaintiffs, upon general and special demurrer to defendant’s pleas, defendant appeals. Defendant’s special pleas alleged that certain answers to questions in the assured’s application upon which the certificate was issued were untrue and that such answers were by the terms of the contract made warranties.
    Abstract of the Decision.
    1. Insurance, § 210

       — when false warranties in application avoid life policy. If answers to questions in an application for mutual benefit insurance made a part of the contract were warranties and were false in any particular, such falsity would avoid the policy whether they were material to the risk or not and however innocently they may have been made, and it would not be necessary, in defense to an action on the policy, for the defendant to prove such answers were wilfully and intentionally false, or were relied upon by the defendant or were material to the issuance of the policy.
    2. Insurance, § 739* — what constitutes contract of life insurance. In an action to recover on a benefit certificate of life insurance, held that the certificate, application, medical examination and by-laws of defendant constituted, by express agreement of the parties, the contract of insurance and should be construed together.
    3. Insurance, § 209* — when answers in application for mutual benefit insurance constitute warranties. Where a certificate of mutual benefit insurance declared that the statements contained in the application were the basis upon which the contract was made and accepted and that the policy was issued upon the faith of such statements, and said statements were several times stated to be warranted to be literally true and, if not literally true, they would avoid the policy, held that' by the language employed it was agreed that such statements should be warranties and that their falsity should avoid the policy, and that there was nothing in the contract which would give any room for interpreting it differently from the language employed in it.
    U. A. Screechfield and T. B. F. Smith, for appellant.
    W. W. Skaggs and A. D. Morgan, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Higbee

delivered the opinion of the court.


author: Mr. Presiding Justice Graves

text:
    Charles E. McClelland, Defendant in Error, v. Charles A. Clayton and George McClelland. Charles A. Clayton, Plaintiff in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of Sangamon county; the Hon. James A. Ckeighton, Judge, presiding. Heard in this' court at the April term, 1917.
    Reversed and remanded.
    Opinion filed October 11, 1917.
    Statement of the Case.
    Action by Charles E. McClelland, plaintiff, against Charles A. Clayton and George McClelland, defendants, as partners. From a judgment in favor of plaintiff against defendants for $62.25, in the Circuit Court after appeal from the justice court, Charles A. Clayton brings error.
    S. H. Cummins, for plaintiff in error.
    William J. Lawler, for defendant in error.

      Abstract of the Decision.
    1. Appeal and ebkob, § 1787* — when judgment reversed pro forma. Where defendant in error files no brief or argument, the judgment may, under Rule 27 of the Appellate Court, be reversed pro forma.
    2. Pabtkebship, § 243* — when burden of proving joint liability is upon plaintiff. An affidavit denying joint liability as partners places the burden of proving such liability upon the plaintiff.
    3. Pabtnebship, § 52* — when evidence insufficient to show joint liability as partners. In an action against certain persons as partners, evidence held insufficient to sustain the burden of proof as to joint liability of defendants.
   Mr. Presiding Justice Graves

delivered the opinion of the eonrt.


text:
    J. R. Bean, Defendant in Error, v. William J. Jackson, Receiver of Chicago & Eastern Illinois Railroad Company, Plaintiff in Error.
    1. Cabbiebs, § 248

       — when evidence shows that agent signed contract of shipment under directions of shipper. In an action against an initial carrier for damages for the loss of part of a shipment of hogs, alleged to be due to delay in transportation and to failure to water or drench the hogs or take proper care of them, evidence held sufficient to show that an agent of the shipper, who signed the shipping contract in his own name, acted with the consent of and under the directions of the shipper.
    2. Cabbiebs, § 223* — when shipper and agent not asking for unconditional bill of lading bound by bill issued. Under the Uniform Bill of Lading Act, sec. 10 (J. & A. If 2176), providing that where a consignor receives a bill of lading and makes no objection in writing within the required time, neither the consignor nor any oerson who accepts delivery of the goods, nor any person who seeks to enforce any provision of the bill, shall be allowed to deny that he is bound by such terms and conditions, so far as they are not contrary to law or public policy, where neither a consignor nor his authorized agent makes any objection to a bill of lading issued in the name of the agent, nor asks for an unconditional bill of lading, they are bound by such contract irrespective of their lack of knowledge of its contents.
    3. Carriers, § 240

       — when contract of shipment of live stock limiting liability of initial carrier to its own line is valid. Under the Uniform Bill of Lading Act (J. & A. 2166 et seq.), a contract of- shipment of live stock, by which an initial carrier limits its liability to the time the stock is on its line, is valid where the shipper makes no objection to the bill of lading containing such stipulations and signs the same, since he is conclusively presumed to have known and assented to the same and is not allowed to deny that he is bound thereby.
    Error to the Circuit Court of Moultrie county; the Hon. George E. Sentee, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed with finding of fact.
    Opinion filed October 11, 1917.
    Homer T. Dick, J. K. Martin, Edward 0. Craig and Donald B. Craig, for plaintiff in error.
    C. B. Patterson and E. J. Miller, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Ííigest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

This is a writ of error to review a judgment for $382.32 against plaintiff in error in an action in case for the loss of hogs belonging to defendant in error, consigned to Baffety Commission Company at East St. Louis, Illinois, and shipped over the road of plaintiff in error from Sullivan, Illinois, as far as Madison Station, Illinois, and there turned over to another carrier to be transported-to the final destination. The basis of the claim of defendant in error of his right to recover is the charge that plaintiff in error failed to transport the hogs within a reasonable time after the same were delivered to the road for shipment, and failed to water or drench the same or to take proper care of the same from the time they were received at Sullivan for shipment on June 23,1914, until they were delivered to the consignee at East St. Louis on June 24,1914. The declaration fairly presents defendant in error’s theory of the case. Plaintiff in error filed the general issue and four special pleas. A demurrer to the special pleas was sustained on the ground that they amounted to no more than the general issue. The case was tried on the issues made by the declaration and remaining plea. So far as we can see, plaintiff in error lost no right or advantage because the demurrer to the special pleas was sustained. We will, therefore, not consider whether the demurrer was properly sustained or not.

The following facts are not seriously controverted and are established by a preponderance of the evidence, namely:

The hogs were loaded about twelve o’clock noon on June 23, 1914, into cars previously ordered by defendant in error. These cars after being loaded were picked up about one o’clock p. m., or a very few minutes before, and placed in the train that was to take them to Madison Station, and at one o’clock and eight minutes the train left Sullivan. These two carloads of hogs were shipped in the name of one Bay N. Bupp, but WychQff, the agent of plaintiff in error at Sullivan, Illinois, knew the hogs belonged to defendant in error. ■The hogs arrived at the freight terminal of plaintiff in error at about eight o’clock the same day, the schedule time, in good shape. They had been drenched by the train crew at Hall at one o’clock and thirty minutes p. m. and at Hillsboro at four o ’clock and thirty minutes p. m. The cars containing these hogs were picked up at the terminal yards of plaintiff in error and delivered to the Merchants Bridge Terminal Company at about twelve o ’clock and thirty minutes a. m. June 24, 1914. After the hogs were delivered to the Merchants Bridge Terminal Company, they were inspected and found to be in good condition and were again drenched. At five o’clock and ten minutes on the morning of June 24, 1914, after they reached their destination, some twenty-nine of the hogs were dead, two died later, and one was crippled.

After the hogs were loaded into cars and but a few minutes before the train started from Sullivan, Bay jST. Bupp went to the depot of plaintiff in error at Sullivan, where the agent presented to him a bill of lading or shipping contract which he signed in'his own name. The evidence tends to prove that Bupp did not read this contract or know the contents of it and that no one read it to him or told him its contents, but it is not denied that it was delivered to him and that he accepted it and that there was no other bill of lading or shipping contract covering this shipment of hogs.

Defendant in error testified, in substance, that he did not know what was in the shipping contract, had never read it or been told the contents of it; that some two or three years before the time in question he had had a talk with Wychoff, the agent of plaintiff in error at Sullivan, in which Wychoff said they had a new rule; that he, defendant in error, did not know whether it was a new rule of the railroad or a new law, and that he did not know that by signing one of these contracts the shipper got a better freight rate.

While Bupp, who signed the shipping contract in his own name, was not the owner or consignor of the hogs, we think the weight of the evidence clearly discloses that what he did was done not only with the knowledge and consent of defendant in error, who was the owner, but for him and pursuant to his express directions.

Section 10 of the Uniform Bill of Lading Apt (J. & A. 2175) is as follows1:

1 ‘ Except as otherwise provided in this act, where a consignor receives a bill and makes no objection as hereinafter provided to its terms or conditions, neither the consignor or any person who accepts delivery of the goods, or any person who seeks to enforce any provision of the bill, shall be allowed to deny that he is bound by such terms and conditions, so far as they are not contrary to law or public policy:
“Provided, that any objection to the lawful terms and conditions of said bill shall be made in writing, which only need state the mere fact of such objection, by the consignor within three hours after receiving said bill and all such bills shall have attached to the same a blank form for such objection. Thereupon it shall be the duty of the officer, agent or servant of the carrier to take up said bill of lading so objected to, and upon request of such officer, agent or servant, it shall be the duty of the consignor to surrender such bill of lading and thereupon such officer, agent or servant shall issue an unconditional bill under which consignor shall pay the lawful freight rate.” '

Neither defendant in error nor Bupp, his agent, made any objection to any of the terms or conditions of the shipping contract, and no demand or request was made by either of them for an unconditional bill of lading. It follows, that by the terms of the act quoted, defendant in error is not allowed to deny that he is bound by the terms and conditions of the shipping contract, whether he or his agent actually knew what was in it or not, “so far as they are not contrary to law or public policy. ’ ’

The shipping contract contains the following stipulations :

“1. The ¡Receivers shall transport the following cars of live stock, and the parties in charge thereof, viz., 2 cars, said to contain one hundred fifty-five head of hogs, consigned to Raffety Comm. Co., consignee, from Sullivan, Ill., station, to Madison, Ill., station, on the line of railroad operated by the Beceivers; and if the destination is beyond the line of the Beceivers, shall deliver the same at said station to the carrier whose line may form a part of the route to East St. Louis, the place of destination; at the reduced rate of 12% per one hundred pounds, or.............., which is less than the rate for shipments at carrier’s risk. *********
.“9. If the destination of the live stock be upon the line of the Receivers, they shall be delivered to the consignee at destination upon surrender of this contract and the payment of charges; but if the destination be beyond the line of the Receivers, then the delivery by the Receivers shall be complete when made to the next succeeding carrier in the route.
“Any carrier in the route may make a separate contract for the transportation of the live stock over its line, but if it does not, then this contract shall be deemed to be adopted severally by such carrier and the shipper, and shall apply in all its terms, severally and not jointly, to the transportation over the line of such carrier, and such carrier shall have the benefit of all the provisions and limitations hereof. Neither the Receivers," nor any other carrier in the route, shall have any obligation or liability beyond the amount of loss and damage, if any, occurring while upon its own line.”

By the express terms of this contract the liability of the carrier is limited to the time the hogs were on the line of such carrier. „

Such limitations are not contrary to law or the public policy of the State, and have been enforced in this State for years where there was proof that they were assented to by the shipper. Illinois Match Co. v. Chicago, R. I. & P. Ry. Co., 250 Ill. 396; Illinois Cent. R. Co. v. Carter, 165 Ill. 570; Chicago & N. W. Ry. Co. v. Simon, 160 Ill. 652.

The Uniform Bill of Lading Act has not changed the rule as to the effect of such limitation of liability stipulations, but has changed the rule in regard to the proof of the making of the contract, or, in other words, of the assent of the shipper to the limitation stipulations. Formerly the carrier was bound to prove the shipper’s knowledge of such stipulations limiting liability, and his assent thereto. Wabash R. Co. v. Thomas, 122 Ill. App. 569; Chicago & N. W. Ry. Co. v. Calumet Stock Farm, 194 Ill. 9; Cleveland, C., C. & St. L. Ry. Co. v. Patton, 203 Ill. 376. Now under the act referred to, when it is established that the shipper has received a bill of lading containing such stipulations and makes no objections thereto and particularly when he has signed the same, he is conclusively presumed to have known and assented to the same and is not allowed to deny that he is bound thereby. The judgment will therefore be reversed with a finding of fact to be incorporated in the record of this court.

Reversed ivith finding of fact.

Finding of fact. We find as ultimate facts that Bupp, who signed the shipping contract, was the authorized agent of defendant in error; that acting for defendant in error within the limits of his authority he signed and accepted the bill of lading issued for-transportation of the hogs in question and made no objections thereto, and that the said hogs were turned over by plaintiff in error to a connecting carrier undamaged and in good condition.


text:
    The People of the State of Illinois, Defendant in Error, v. Walter Haxton, alias Pete Haxton, Plaintiff in Error.
    1. Indictment and information, § 12

       — necessity of foreman of grand jury indorsing names of witnesses on back of indictment. The provisions of Rev. St. eh. 78, sec. 17 (J. & A. j[ 6847), requiring the names of the witnesses on whose evidence the indictment is found to be indorsed on the back of the indictment by the foreman of the grand jury, is mandatory.
    2. Indictment and information, § 12* — when omission of names of witnesses on back of indictment is fatal. While a failure to comply with the provisions of Rev. St. ch. 78, sec. 17 (J. & A. If 6847), requiring the names of witnesses on whose evidence the indictment is found to be indorsed on the back of the indictment by the foreman of the grand jury, is an irregularity that may be waived by the defendant, if a motion to quash, based upon such failure, is interposed in apt time, the omission is fatal to the indictment.
    Error to the County Court of Morgan county; the Hon. William E. Thomson, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded with directions.
    Opinion filed October 11, 1917.
    H. P. Samuell and John M. Butler, for plaintiff in error.
    Carl E. Robinson, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

The plaintiff in error, Walter Haxton, alias Pete Haxton, was indicted by the grand jury of Morgan county, Illinois, in May, 1916, for the violation of the1 statute against selling liquor in anti-saloon territory. The indictment was certified to the County Court for trial. There were no names of witnesses indorsed on the back of the indictment. Before the plaintiff in error was arraigned he made his motion to quash the indictment on the ground that the foreman of the grand jury had not indorsed on the back of the indictment the names of the witnesses upon whose testimony the indictment was found, as required by section 17 of chapter 78, Rev. St. (J. & A. 6847). The section referred to reads as follows:

“After the grand jury is impaneled, it shall be the duty of the court to appoint a foreman, who shall have power to swear or affirm witnesses to testify before them, and whose duty it shall be, when the grand jury, or any twelve of them, find a bill of indictment to be supported by good and sufficient evidence, to indorse thereon ‘A true bill; ’ where they do not find a bill to be supported by sufficient evidence, to indorse thereon ‘Not a true bill;’ and shall, in either case, sign his name as foreman, at the foot of said indorsement, and shall also, in each case in which a true bill shall be returned into court as aforesaid, note thereon the name or names of the witness or witnesses upon whose evidence the same shall have been found.”

The provision of this section requiring the names of witnesses on whose evidence the indictment is found to be indorsed on the back of the indictment by the foreman is mandatory. People v. Bladek, 259 Ill. 69; Andrews v. People, 117 Ill. 195. While a failure to comply with those requirements is an irregularity that may be waived by a defendant, if a motion to quash based on such failure is interposed in apt time, the omission is fatal to the indictment. McKinney v. People, 7 Ill. (2 Gilm.) 540-552.

The only authority cited by defendant in error in an attempt to justify the court in overruling the motion to quash is the case of McDonald v. People, 49 Ill. App. 357, in which it is said: “This was a misdemeanor, and the law does not require witnesses’ names to be placed on the back of the indictment as conceded by counsel for plaintiff in error.”

That case, however, is not in point here. The question in that case was whether the court erred in permitting witnesses to testify whose names are not indorsed on the indictment. So far as it appears from the opinion in that ease, the indictment had indorsed upon it the names of witnesses upon whose evidence it was returned, and there is nothing to indicate that the foreman had failed to indorse upon the back of the indictment the name of any witness who had testified before the grand jury.

If the language quoted was intended to be understood literally, and to be a holding that the law does not require the names of the witnesses on whose evidence the indictment is found to be indorsed on the indictment, it is not only obiter dicta but is in direct conflict with the holdings of the Supreme Court in the cases already cited. If, on the other hand, it was intended, to express the view that witnesses whose names are ■ not indorsed on the indictment may, in the discretion of the court, be called on the trial, then it is in accord with the weight of authority in this State. In view of the fact that it was this point that was involved in that case, we are inclined to presume that the language employed was intended to be used in the last-mentioned sense.

The motion to quash was made in apt time, and should have been sustained and the indictment quashed.

The judgment of the County Court is reversed and the cause is remanded to that court with directions to sustain the motion to quash and to quash the indictment.

Reversed and remanded with directions.


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    Nora Stump, Defendant in Error, v. G. B. Dudley, Executor, William E. Rennels, Albert Rennels, John Rennels, Martha Hodge, Dessie Hodge, Martin Hodge and Millie Deverick, Plaintiffs in Error.
    1. Bills and notes; § 50

       — when note is without consideration. A promissory note intended as a gift, or made in pursuance of a void unenforceable contract, is without consideration.
    2. Bills and notes, § 50* — when note from father to daughter is without consideration. A note given- by a father to his daughter in lieu of real estate he had failed to give her according to his promise is not based upon a consideration.
    Error to the Circuit Court of Coles county; the Hon. Walter Brewer, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed with finding of fact.
    Opinion filed October 11, 1917.
    Rehearing denied December 1, 1917.
    Albert 0. and Ben F. Anderson, for plaintiffs in error.
    Charles Wallace and C. C. Lee, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

This is a writ of error to reverse a judgment for $2,250 against the estate of J. Pennington Bennels, deceased, based on a promissory note signed by the said Bennels and payable to the defendant in error. Defendant in error is a daughter of the maker of the note.

The overwhelming proof in this record shows that there was' no valid consideration for the giving of the note. If it be true as defendant in error claims, that her father, the deceased, had promised to give her a certain piece of real estate and, having failed to do so, executed and delivered the note sued on in lieu of the real estate, it was merely a promise to give money based on a former unfulfilled promise to give real estate as a gratuity. It is well-settled law in Illinois that a promissory note intended as a gift, or made in pursuance of a void unenforceable contract, is without consideration. Williams v. Forbes, 114 Ill. 167; Richardson v. Richardson, 148 Ill. 568; Armstrong v. Armstrong, 142 Ill. App. 507; In re Sexton’s Estate, 162 Ill. App. 222. The promise of the father to give to defendant in error the real estate in question, if it be admitted that he made such a promise, furnished no consideration for the giving of the note sued on.

The judgment of the Circuit Court is therefore reversed with the finding of fact to be incorporated in the record of this court that the note sued on was a mere promise to make a gift and was without consideration.

Reversed with finding of fact.


text:
    The People of the State of Illinois, Defendant in Error, v. Carl Carpenter, Plaintiff in Error.
    1. Criminal law, § 88

       — when complaint charging disorderly conduct is insufficient. A complaint, on which a warrant was issued by a justice of the peace, which fails to either set forth the facts constituting the offense within Rev. St. 1915, ch. 38, sec. 55 (J. & A. j[ 3589), relating to lewdness, disorderly conduct, etc., tending, to debauch the public morals or that the acts with which defendant was charged tended to debauch the public morals, is subject to quashal upon motion.
    2. Criminal law, § 88* — when complaint may he amended. Amendments may be allowed to complaints upon which criminal prosecution begun before a justice of the peace are based.
    Error to the Circuit Court of Vermilion county; the Hon. Augustus A. Partlow, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded with directions.
    Opinion filed October 11, 1917.

      Walter T. Gunn, for plaintiff in error; Casper Platt, of counsel.
    John H. Lewman, for defendant in error; I. Bay Carter, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

Plaintiff in error was convicted in the Circuit Court on appeal from a justice of the peace for the violation of section 55 of chapter 38, Bev. St. 1915 (J. & A. jf 3589) which provides:

“Whoever shall be guilty of open lewdness, disorderly conduct, or other notorious act of public indecency, tending to debauch the public morals, shall he fined not exceeding $200.”

The complaint on which the warrant in this ease was issued, failed to state the facts constituting the offense or that the, acts charged tended “to debauch public morals.” A motion to quash this complaint was made in the Circuit Court and was overruled. This was error. An indictment for a mere statutory offense must be framed upon the statute, and this fact must distinctly appear upon the face of the indictment itself. That it may so appear, the pleader must either charge the offense in the language of the statute or specifically set forth the facts constituting the same. Johnson v. People, 113 Ill. 99; West v. People, 137 Ill. 189; People v. Brady, 272 Ill. 401. This rule applies to informations and criminal complaints.

For want of a sufficient complaint, the judgment is reversed and the cause is remanded to the Circuit Court with instructions to quash the complaint unless the attorney representing the People shall ask leave to amend it so as to properly charge a violation of section 55 of the Criminal Code (J. & A. ft 3589) above quoted, and to allow said complaint to be properly amended, if leave to do so is so asked. It is proper practice to allow amendments to complaints upon which criminal prosecutions begun before a justice of the peace are based. Truitt v. People, 88 Ill. 518; Maynard v. People, 135 Ill. 416-431; Giroux v. People, 132 Ill. App. 562; Bergstrasser v. People, 134 Ill. App. 609; People v. Manns, 146 Ill. App. 571; People v. Boyd, 170 Ill. App. 481; People v. Conboy, 178 Ill. App. 90; People v. Greenberg, 172 Ill. App. 360.

Reversed and remanded with directions.


text:
    Ayers National Bank of Jacksonville, Illinois, and Elmer J. Henderson, Defendants in Error, v. William Barber et al., Plaintiifs in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of Morgan county; the Hon. Fbank W. Btjbtoh, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed.
    Opinion filed October 11, 1917.
    Rehearing denied December 1, 1917.
    Statement of the Case.
    Bill in the nature of a creditor’s bill by the Ayers National Bank of Jacksonville, Illinois, a corporation, and Elmer J. Henderson, judgment creditors of William Barber, complainants, against William Barber, Anna Margaret Barber, his wife, Pearl Frost, James E. Barber, G-ráce W. Barber, Lizzie Heminghaus and Clara Heminghaus, defendants, to set aside a conveyanee of certain lands formerly owned by William Barber to one Pearl Frost, and by the grantee to Anna Margaret Barber, the consideration for which was the assumption of certain indebtedness of William Barber to defendants Heminghaus, and to require defendants James E. Barber and Grace W. Barber to turn over to complainants the sum of $1,000, secured by mortgage on premises, conveyed by defendant Anna Margaret Barber to James E. Barber, to satisfy an alleged indebtedness of William Barber to James E. Barber, the payment of such indebtedness constituting a part consideration for the deed from William Barber to Anna Margaret Barber. The case was later dismissed as to said James E. Barber, Grace W. Barber, and defendants Heminghaus, and defendant Frost filed a disclaimer. Later the bill was amended naming James E. Barber and Grace W. Barber as parties defendant. Prom a decree that the property conveyed to James E. and Grace W. Barber be subjected to the debts of William Barber and that James E. and Grace W. Barber pay to complainants such sum of $1,000, to be credited pro rata on the respective judgments, defendants bring error.
    Abstract of the Decision.
    1. Fraudulent conveyances, § 268

       — when evidence shows conveyance by husband to wife was for adequate consideration. On a bill in the nature of a creditor’s bill, evidence held sufficient to show that a conveyance by a husband of property to his wife was based upon a sufficient consideration and was not made with intent to hinder, delay or defraud creditors.
    2. Fraudulent conveyances, § 268* — when evidence shows that

      transfer of property is hosed on adequate consideration. On a bill in the nature of a creditor’s bill, evidence held sufficient to show that one of the defendants paid to the wife of the judgment debtor an adequate consideration for land of the wife conveyed to such defendant, in satisfaction of a debt owed by the judgment debtor to such defendant and in consideration for a transfer by the judgr ment debtor of property to the wife, and that such transfer to such defendant was bona fide.

      Masters & Masters, for plaintiffs in error.
    Bellatti, Bellatti & Moriarty, for defendants in error.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.


text:
    Samuel Bradley, Appellee, v. Vandalia Railroad Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Clark county; the Hon. Augustus A. Partlow, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed October 11, 1917.
    Statement of the Case.
    Action under the Federal Employers’ Liability Act by Samuel Bradley, a section foreman, plaintiff, against the Vandalia Railroad Company, defendant, to recover for personal injuries sustained due to a hand car owned by defendant jumping off the track. From a judgment for $1,500 for plaintiff, defendant appeals.
    Scholpield & Scholpield, for appellant.
    Arthur Poorman and Everett Connelly, for appellee.

      See Illinois Notes Digest, Veis. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

Abstract of the Decision.

1. Master and servant, § 302 — what is common-law doctrine of assumed risk. The common-law doctrine of assumed risk is that an employee assumes all hazard that arises from defects in appliances used by him in the course of his employment that are open, obvious and apparent, and are known to him, unless he continues to use such defective appliance under a promise of his employer to repair.

2. Master and servant, § 302a* — when common-law doctrine of assumed risk is applicable under Federal Employers’ Liability Act. The rule of the common law as to assumption of risk by a servant controls the rights of employees under the Federal Employers’ Liability Act, unless the injury complained of is caused or contributed to by the violation by the employer of some federal statute enacted for the safety of employees.

3. Master and servant, § 786* — Aohen instruction directing verdict is erroneous because ignoring assumption of risk. An instruction that directs a verdict in an action under the Federal Employers’ Liability Act is improper where it ignores the question of assumption of risk, since such an instruction must contain all the elements necessary to entitle the plaintiff to recover.

4. ' Appeal and error, § 1646* — when error in giving incorrect instruction directing verdict not cured. An error in giving an incorrect instruction directing a verdict in a negligence action which fails to include an element necessary to entitle the plaintiff to recover cannot be cured by other correct instructions.

5. Master and servant, § 806* — when instruction on assumed risk under Federal Employers’ Liability Act is erroneous. In an action under the Federal ’Employers’ Liability Act, an instruction on assumed risk that the doctrine applies only to perils or risks ordinarily incident to the service, and excluding from the operation of the rule other risks or perils, even though the employee knew about them and continued to work without complaint or promise to correct the evils, held to be erroneous.

6. Master and servant, § 822* — when instruction on damages under Federal Employers’ Liability Act is erroneous. In an action under the Federal Employers’ Liability Act, an instruction on the assessment of damages which ignores the provision of the act that, while contributory negligence shall not bar a recovery, the damages should be diminished by the jury in proportion to the amount of negligence attributable to the employee, is erroneous.

7. Master and servant, § 682* — when evidence shows that section hand was engaged in line of duty at time of accident. In an action by a railroad section hand under the Federal Employers’ Liability Act to recover for injuries received due to a hand car jumping off the track while he was using the car at noon to go after drinking water, according to custom, evidence held sufficient to show that plaintiff was engaged in the line of his employment at the time of his injury.

8. Master and servant, § 622 — when admission of evidence as to what was done to hand car after injury to section hand is erroneous. In an action by a section hand to recover for personal Injuries sustained as the result of the hand car on which he was riding jumping off the track, held that the admission of evidence as to what was done with the car after the accident was improper.

9. Appeal and error, § 450* — when error in admission of evidence cannot he complained of. Error in the admission of evidence cannot be complained of where no objection was made in the trial court


text:
    Alex Streathern, Plaintiff in Error, v. Superior Coal Company, Defendant in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of Macoupin county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed October 11, 1917.
    Statement of the Case.
    Action by Alex Streathern, plaintiff, against the Superior Coal Company, defendant, to recover damages for injuries sustained while employed in operating a machine to undercut coal in defendant’s mine, due to the fall of a stone in the slate strata above the coal in a room in the mine. From a judgment for defendant upon a directed verdict, plaintiff brings error.

      Abstract of the Decision.
    1. Trial, § 191

       — when direction of verdict is improper. In a personal injury action, it is proper to direct a verdict for defendant where there is no evidence from which, taken by itself, with all fair inference to be drawn from it, the jury could, without acting unreasonably, find that all the material allegations in the declaration had been proven, but if there is such quantum of proof the giving of such instruction is reversible error.
    2. Mines and minerals, § 84* — what constitutes wilful violation of Mine Employment Act. To constitute a wilful violation of the Mine Employment Act (J. & A. j[ 7475 et seq.), it is necessary that there should be a reckless disregard of its provisions, and the employer is liable not only when the dangerous conditions are known to him but also when, by the exercise of reasonable care, he could have discovered them.
    3. Mines and minerals, § 182* — when question for fury whether roof of mine was dangerous and mine examiner should have discovered condition. In an action by the operator of a coal undercutting machine to recover for damages for personal injuries sustained as the result of the falling of a “nigger-head” or rock from the slate strata projecting a short distance beyond and above the coal at which plaintiff was working, in the roof of the mine, held that it was a question for the jury whether the condition was actually dangerous and whether it should have been so marked, and also whether the mine examiner by the exercise of reasonable care could have discovered that the place was dangerous.
    A. W. Kerr and F. H. Kruger, for plaintiff in error.
    Edward 0. Kuotts, for defendant in error.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.


text:
    William R. Pine, Appellant, v. Central Life Insurance Company of Illinois, Appellee.
    Evidence, § 243

       — when authenticated copy of entire record of foreign judgment is necessary. Where an authenticated copy of the record of a foreign judgment is required, it must be the whole record so that the court may determine the legal effect of the whole, which may be quite different from a part.
    Appeal from the Circuit Court of Clark county; the Hon. Augustus A. Pabtlow, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed October 11, 1917.
    Soholeield & Scholpield, for appellant.
    W. H. Hinebaugh and B. M„ Davison, for appellee; Sidney S. Breese, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

Walter G. Pine, of South Dakota, a son of appellant, held a policy of insurance on his life for $1,000, issued by appellee in which appellant was named as beneficiary. He died in South Dakota on October 20, 1915. This suit was brought to recover the face of the policy. There is no controversy over the liability of appellee on the policy. The defense was that a judgment had been rendered in South Dakota against appellee as garnishee for $533.10, based on a judgment against appellant and in favor of the Whitbeck National Bank of Chamberlain, South Dakota, which judgment it had paid; that as to the amount so paid it should have credit, and that as to the balance of the $1,000 represented by the policy appellant should have judgment. The case was tried by the court without a jury. The fiudiug and judgment were for appellee as to the amount paid on the garnishee judgment and were for appellant for the balance of the face of the policy, which the court found to be $4G6.90, and rendered judgment against it for that amount.

Appellant claims that there is no proper evidence in this record of the existence of the South Dakota judgments, and that the so-called records of those judgments that were offered were incompetent and were improperly admitted.

The so-called records that were admitted in evidence to show these foreign judgments consisted of twelve separate exhibits, each being accompanied by separate certificates. They were offered and admitted separately. They do not even purport to be and they certainly are not complete records of any judgments.

Exhibit number 1 is a copy of a summons. It is entitled “Whitbeck National Bank, a Corporation, Plaintiff, vs. William B. Pine, Defendant.” The certificate of the clerk attached to this exhibit certifies that it is the summons “filed in the action of the Whitbeck National Bank, a corporation, plaintiff, vs. William B. Pine, defendant, and the Central Life Insurance Company of Illinois, a corporation, garnishee.”

Exhibit number 2 purports to be a copy of an affidavit of service in which affidavit it is recited that the annexed “summons, complaint, affidavit in garnishment and garnishee summons in the above-entitled action, came into my hands for service on the 8th day of December, 1915,” etc., but there is neither summons, complaint, affidavit in garnishment nor garnishee summons attached to such affidavit, or made a part of the exhibit.

Exhibit number 3 is entitled “Whitbeck National Bank, Plaintiff, vs. William B. Pine, Defendant,” and is certified to be a copy of a complaint “filed in the action of the Whitbeck National Bank, a corporation, plaintiff, vs. William B. Pine, defendant, and the Central Life Insurance Company of Illinois, a corporation, garnishee.”

Exhibit number 4 is certified to be a true copy of the return of service of summons and contains the following statement: 11 That the annexed garnishee summons and affidavit came into my hands for service on the 23rd day of November, 1915,” but there is no garnishee summons or affidavit annexed to such purported copy of such return of service.

Exhibit number 5 is certified to be a copy of the garnishee summons “filed in the action of the Whitbeck ■National Bank, a corporation, plaintiff, vs. William B. Pine, defendant, and the Central Life Insurance Company of Illinois, a corporation, garnishee,” but it is in no way identified as the garnishee summons referred to in exhibit number 4 and is not attached to it. The copy of this garnishee-summons recites: “You are hereby summoned pursuant to the annexed affidavit,” but no affidavit is annexed to the copy offered in evidence..

Exhibit number 6 is certified to be a correct copy of the affidavit in garnishment, but it is not identified as the affidavit referred to in exhibit number 5, and is not attached to it.

Exhibit number 7 is certified to be a true copy of the answer of the garnishee.

Exhibit number 8 is entitled “Affidavit of Default” and purports to be a copy of a file in the clerk’s office purporting to show that the defendant in the case was in default.

Exhibit number 9 is certified to be a correct copy of an instrument on file in the office of the clerk- of the court in which the judgment is supposed to have beem entered and is labeled “Judgment.”

Exhibit number 10 is labeled “Judgment against Garnishee,” and is certified to be a correct copy of an “instrument” on file in the office of the same clerk.

Exhibit number 11 is certified to be a “true and correct transcript and copy of and from the judgment docket of said court, in so far as it relates to a certain judgment rendered on the 12th day of January, 1916, in an action between Whitbeck National Bank, a corporation, plaintiff, vs. William R. Pine and Central Life Insurance Company of Illinois, a corporation, defendants, and that said docket is a full and sufficient material index to the judgment book wherein said judgment is recorded, and which is a record in my office.” The exhibit itself bears out the certificate, but does not purport to be a transcript of the judgment or any part thereof.,

Exhibit number 12 is identical in style and form with exhibit number 11. It purports to be an index to a garnishee judgment, but does not purport to be a copy of the judgment itself.

Nowhere in these exhibits or in the certificate attached to them is there anything from which a court can determine that the exhibits offered constitute the whole of the record of the judgment in question, or of any judgment. On the contrary, as has been pointed out, the exhibits on their face show that they are hot complete but that there are records of judgments in the office of the clerk making the certificate transcripts of which have not been offered.

The general rule, to which we know no exception, is that where the copy of the record of a judgment is required it must .be of the whole record so that the court may determine the legal effect of the whole, which may be quite different from a part. Vail v. Iglehart, 69 Ill. 332.

In Gadwood v. Kerr, 181 Ill. 162, the Supreme Court in construing the language of the Practice Act then in force, referring to “Authenticated copies of records and judgments appealed from,” held that those words meant a transcript or what purports to be a transcript of the entire record, and that filing a transcript of part of the record was not a compliance with the statute.

Counsel for appellee have cited no authority justifying a holding that the exhibits offered amount to proof of the existence of a foreign judgment or of what that judgment is, but have contented themselves with a discussion of what faith and credit shall be given by the court of one State to the judgments of the court of another State and what presumptions shall prevail upon proof of judgments in a foreign State. We find no fault with the propositions of law laid down by them on those questions; the trouble is, there is no proper proof in this record of the existence of a judgment made the basis of appellee’s defense. It follows that the finding of the Circuit Court that a judgment in garnishment against appellee had been entered in the court of South Dakota is not supported by competent evidence. The judgment is therefore reversed and the cause remanded to the Circuit Court.

Reversed and remanded.


text:
    Anton Padavic, Appellant, v. Maggie L. Vanderboom, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Adams county; the Hon. Axbert Akers, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 11, 1917.
    Statement of the Case.
    Action by Anton Padavic, plaintiff, against Maggie L. Vanderboom, defendant, to recover on a note which defendant signed as surety for her husband. Prom a judgment for defendant, plaintiff appeals.

      Abstract of the Decision.
    1. Bills and notes, § 451

       — when evidence shows payment of note signed by wife as surety for husband by latter. In an action on a promissory note signed by a wife as surety for her husband, evidence held sufficient to sustain a finding that the note was paid in a transaction in which defendant’s husband sold some property for plaintiff on commission.
    2. Alteration of instruments, § 21* — when evidence shows that receipt was not altered. In an action on a promissory note signed by a wife as surety for her husband, evidence held sufficient to sustain a finding that a receipt, signed by plaintiff reciting that it was in full for all claims and notes of defendant and her husband, was in such condition when signed and was not altered after signing, so as to so read.
    3. Evidence, § 221* — when evidence of conversation between malcer and payee relating to payment by sale of property on commission is admissible. In an action on a promissory note signed by a wife as surety for her husband, in which it was claimed that the note was paid in a transaction in which the husband sold some property on commission for plaintiff, held that evidence consisting of a recital of a conversation between plaintiff and the deceased husband concerning the sale of such property and the offer made by plaintiff to the husband of what he would give him if he accomplished the sale, was properly admitted on behalf of defendant.
    4. Evidence, § 223* — when inadmissible as hearsay. A statement made by the maker of a note to a collector for the payee out of the presence of the surety at the time of presentation of the note for payment, that he would fix the matter with the payee, is purely hearsay as to the surety.
    "C. H. Wood, for appellant.
    L. H. Berger, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.


text:
    People’s Bank, Conservator, Appellee, v. John H. Wood, Appellant.
    1. Equity — when withdrawn answer is competent evidence against defendant filing it. Even though the original answer is withdrawn by leave of court and an amended answer is filed, admissions in such original answer are competent evidence against the defendant filing it.
    2. Judgment, § 360

       — when right of judgment creditor to collect notes may not he questioned. On a bill by a judgment creditor to subject property conveyed by his judgment debtor to defendant, complainant’s right to recover in its suit on the notes on which the judgment was recovered cannot be questioned. '
    3. Guardian and ward — what is nature of duty of conservator to collect judgment. The duty of a conservator to collect a judgment in its favor is fixed by law, and cannot be controlled by the wishes of its ward.
    4. Fraudulent conveyances, § 264* — when evidence sufficient to sustain judgment. On a bill by a judgment creditor to subject property conveyed by his judgment debtor, evidence examined and held to support the findings of fact and to warrant the relief granted.
    5. Fraudulent conveyances, § 105* — when conveyance void as against creditors. A secret agreement between the grantor and grantee of property that the latter should care for and support the grantor during the rest of his life created a trust for the benefit of the grantor and rendered the conveyance void as against creditors, whether or not the debts existed or were due at the time of the conveyance and without regard to whether it was the grantor’s intention, at the time he made the conveyance, to defraud his creditors, and also without regard to the fact that there was a valid partial consideration for the conveyance.
    6. Fraudulent conveyances, § 272* — when evidence show's agreement for support of judgment debtor. On a bill by a creditor to subject property conveyed by his judgment debtor, evidence held to show the existence of an agreement between the debtor and his grantee that the latter would support the debtor during his lifetime.
    7. Equity,. § 156* — necessity of setting up facts relied upon in answer. In chancery a party cannot rely on facts not set up in any answer, even though the proof shows their existence.
    8. Deeds, § 196* — when real consideration for conveyance of property may he shown. On a bill by a judgment creditor to subject to the judgment property conveyed by the debtor to a third person, the real consideration for which the property was conveyed may be shown by complainant although the written contract under which it was conveyed sets forth a definite consideration.
    Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 11, 1917.
    Rehearing denied December 1, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Sterling, Livingston & Whitmore, for appellant; Sigmund Livingston, of counsel.
    Barry & Morrissey, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

Mary Gridley Bell and Edward B. Gridley were brother and sister. They were each possessed of very considerable property in their own rights. For years Edward B. Gridley managed and cared for the property of his sister, Mary Gridley Bell, and collected the income therefrom. On December 7, 1908, appellee was appointed conservator for Mary Gridley Bell and has since acted as such conservator. At the time appellee was appointed conservator, Edward B. Gridley was indebted to Mary Gridley Bell in the amount of $10,574.48 for money that had come into his hands belonging to her while acting as her agent and which he had retained. A little over two months after appellee was appointed conservator for Mrs. Bell, Edward B. Gridley executed and delivered to it his four promissory notes aggregating $10,574.48; one of these notes for $1,574.48 was due January 23, 1912; one for $3,000 was due January 23, 1913; one for $3,000 was due January 23,1914, and one for $3,000 was due January 23, 1915; and all with interest at the rate of five per cent, per annum. He was later found to be indebted to his sister Mrs. Bell in the further sum. of $1,046.24, for which he gave his note on February 6, 1909, due February 6, 1916. On January 23,1912, Gridley executed a note and delivered the same to appellee for $1,743.10 due January 23, 1916. On January 7, 1914, Gridley died and on May 25,1914, appellee recovered a judgment against his estate for the sum of $14,736.99, to be paid in due course of administration. John H. Wood, the appellant herein, was the executor of the last will and testament of Edward B. Gridley, although, at the time of his death, he had no real estate and practically no personal estate in his own name. In January and February, 1909, when he executed and delivered the first notes, aggregating $11,-620.22, that afterwards were merged in the judgment against his estate heretofore referred to, he was the owner of real estate worth more than $100,000. By deeds dated February 27, 1909, and March 6, 1909, Gridley conveyed all of his real estate to John H. Wood, the appellant herein, for “$1.00 and other valuable considerations,” but reserved to himself a life estate in the same. On May 10,1910, he executed another deed to appellant conveying his life estate in about $15,000 worth of property for “$10.00 and other valuable considerations.” That there was also a secret understanding and agreement between Gridley and Wood providing for the future maintenance and support by Wood of Gridley is admitted by the answer as at first filed. This answer was afterwards amended, but the admissions in the first answer filed are competent evidence against the defendant filing the same, even when the answer is withdrawn by leave of court. Allen v. United States Fidelity & Guaranty Co., 269 Ill. 234; Blakeslee v. Blakeslee, 265 Ill. 48; Bartlow v. Chicago, B. & Q. R. Co., 243 Ill. 332; Daub v. Englebach, 109 Ill. 267; Maher v. Bull, 39 Ill. 531. A close confidential relation existed between Gridley and Wood and had existed for years. Wood was trustee under the will of Gridley’s father of property in which Gridley had a half interest. On June 25, 1914, appellee filed its bill in chancery in the Circuit Court of McLean county, setting up substantially the foregoing facts and praying that the property conveyed to and in the hands of appellee might be subjected to the payment of its judgment. In due course, the cause was referred to a master in chancery who took the proof and reported his conclusions recommending that complainant be granted the relief prayed for in its bill. The court overruled exceptions to the master’s report and entered a decree in accord with the recommendations of the master. In this decree, among other things, the court finds that in the conveyance from Gridley to Wood of his real estate, Gridley reserved a life estate by the terms of the deed and that in that transaction he also reserved a secret beneficial interest which was, in substance, that the said Wood was to support and care for said Gridley and the premises so conveyed during the remainder of the life of said Gridley. Wood has appealed from this decree and appellee has assigned cross errors.

The question of the right of appellee to recover in the suit on the notes was settled when the court entered judgment thereon. The duty of the conservator to collect the judgment is fixed by law, and the desires of the ward cannot be considered either by the conservator or the court. The questions necessary to be determined in this case are whether the court was warranted by the evidence in its findings of fact made the basis of the decree, and whether its findings of fact warranted the relief granted.

There can be no doubt that the findings of the court that there was a reservation of a life interest in the deeds of conveyance from Gridley to Wood; that there was a secret understanding and agreement for care and support of Gridley during his life by Wood; that the debt for which the notes were given on which the judgment was entered was made before the executing of the deeds sought to be set aside and while Gridley was financially responsible for many times the amount of the debt; that at the death of Gridley nearly $9,000 of the indebtedness which was later the basis of the judgment in question was not due; that there was no estate in his name out of which the judgment could be made; that but for the conveyances attacked by the bill there would have been ample property to pay all of Gridley’s debts; that the consideration paid by Wood for the property was not within $100,000 of what the property was worth, are all established by the evidence.

The secret agreement between Wood and Gridley that Wood should care for and support Gridley during the balance of his life created a trust for the benefit of Gridley and rendered the conveyances by .Gridley to Wood void as against creditors, whether or not the debts existed or were due at the time the conveyances or any of them were made, and whether or not it was the intention of Gridley at the time he made the conveyances to prevent the creditors from collecting their claims. McKey v. Cockran, 262 Ill. 376; Davidson v. Burke, 143 Ill. 139; Lawson v. Funk, 108 Ill. 502. This is so even though there is a valid partial consideration for the conveyance. Moore v. Wood, 100 Ill. 451; Darting v. Jockers, 136 Ill. 627; Gordon v. Reynolds, 114 Ill. 118. The law under such circumstances does not stop to inquire what part of the consideration was in money or property and what part in future support with a view of adjusting the relative equities, but treats the conveyance as void in toto. Lawson v. Funk, 108 Ill. 502; Moore v. Wood, 100 Ill. 451. An attempt was made on the part of appellant to distinguish this case from the usual rule upon the theory that the secret agreement eventually committed to writing was only to give his personal service in the care of Gridley in sickness and distress, and that there is nothing to show that he was to furnish or provide anything for Gridley’s support. But the testimony of Wood himself is that he was to “look after him in sickness and in health,” and that under the agreement he did look after him in sickness and in health. He also said, “I was to see that he had support during his lifetime and that was precisely what the deeds were made to .me for.” It is therefore apparent that the construction of this secret trust by Wood himself when on the stand, as well as during the lifetime of G-ridley, was that he was to support G-ridley. The writing referred to does not state the facts exactly as the witness did upon the stand, but the answer does not set up or rest on a written contract, and in chancery a party cannot rely on facts not set up in any answer even though the proof shows their existence. Millard v. Millard, 221 Ill. 86, at 92. It is also well settled that even though the writing bets up a definite consideration for the contract in question, still it would be competent in suits of this character for the benefit of creditors to prove what the real contract was regardless of the language of the writing. Tyler v. Tyler, 126 Ill. 525, at 538. The reason for that rule is manifest. While possibly the parties to such contract might themselves be bound by the writing, a creditor’s rights are established by what the facts really are, regardless how the parties have expressed it in some writing signed by them.

We see no escape from the application of this rule to the facts in this case, particularly when it is manifest that, but for the conveyances made, appellee would have been able to collect his claim from the funds of the estate after the death of G-ridley, and the further fact that except by holding these conveyances to be in fraud of appellee’s rights, the claim is uncollectible. Various other phases of this controversy have been argued, but it would be useless to extend this opinion to discuss them all. Enough has been said to show that in so far as the court found and decreed the conveyanees to be in fraud of creditors and granted the relief prayed for in the bill, it was justified by both the law and the evidence. The decree is therefore affirmed.

Affirmed.


text:
    Eliza Ann Winchell, Appellee, v. M. P. Rice, Executor, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Evidence, § 204

       — when admissions of deceased in derogation of title to note are admissible. On a hearing on objections to an executor’s inventory in which the testator’s wife claims the ownership of a note inventoried by the executor as belonging to the estate, statements of the testator during his lifetime that the note was not his property but that it was his wife’s are competent evidence.

      Appeal from the Circuit Court of Pulton county; the Hon. Harry M. Waggoneb, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 11, 1917.
    Statement of the Case.
    Objections by Eliza Ann Winchell, plaintiff, to inventory filed by M. P. Bice, executor of the estate of John Winchell, defendant. From a judgment for plaintiff on certain objections, defendant appeals and plaintiff assigns cross errors as to the overruling of certain objections.
    J. D. Breckinridge and M. P. Bice, for appellant.
    Harvey H. Atherton, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

2. Husband and wife, § 116* — when evidence shows otonership of note by wife. Evidence that a note payable to a husband and wife had been given in payment of property sold by her after she and her husband had divided their property, that the husband had stated that the note was hers, that it had always remained in her possession and that she had always received the interest, except on one occasion when it was paid to a bank and credited by the bank to the husband without authority from any one, is sufficient to show her ownership of the note.

3. Executors and administrators, § 62* — what should be inventoried by executor as part of estate. Money belonging to a husband which is drawn from the bank by the wife shortly before his death and thereafter voluntarily paid out by her on account of his funeral expenses should be inventoried by his executor as part of his estate.


text:
    Mary Morrell, Appellee, v. City of Pana, Appellant.
    1. Municipal corporations — how acts of can be proved. The acts of municipal corporations can only be shown by their records.
    2. Municipal corporations, § 1118

       — when city not liable for injuries to property caused by discharge of sewage. A municipality cannot be held liable in an action for injuries to property alleged to have been caused by the discharge of sewage into a water course where there is no competent proof that any drain or sewer discharging into the water course was either built by the municipality or authorized by it.
    3. Municipal corporations, § 938*- — when city not liable for damages resulting from acts of others. A city cannot be held liable for damages resulting from acts done by persons or corporations which it did not authorize.
    4. Municipal corporations, § 938* — when city not liable for injuries resulting from nuisance created by others. Mere failure on the part of a city to prévent the creation of a nuisance by others does not render it liable for injuries resulting therefrom.
    5. Municipal corporations, § 938

       — when city is not liable for injuries caused by nuisance. A city is not liable for injuries caused by a nuisance created by private persons or corporations on private property.
    6. Municipal corporations, § 938* — when not liable for failure to abate nuisance. A city is not liable for failure to abate a nuisance created by private persons or corporations on private property.
    7. Municipal corporations, § 1112* — when not liable for injuries due to failure to construct sewers and drains. A city is not liable for injuries arising through its failure to exercise its charter powers in regard to constructing and maintaining sewers and drains.
    Appeal from the Circuit Court of Christian county; the Hon. William B. Wright, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed October 11, 1917.
    E. E. Dowell and L. G. Griffith, for appellant.
    Leslie J. Taylor and C. E. Springstun, for appellee; Jaimes M. Taylor, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

Appellee brought suit in case against appellant to recover damages on account of an alleged nuisance said to have been caused by the emptying of sewage into a natural water course.

The declaration consists of two counts. In each of these counts it is alleged to be the duty of appellant to control, manage and dispose of all the sewage and drainage of said corporation and to do so in such a manner as not to injure, prejudice or aggrieve appellee in the possession, use and enjoyment of her premises. The breach of duty alleged in the first count is that appellant has heretofore constructed and now maintains and controls five sewer drains extending from the business and residence portion of appellant city in a northeasterly direction and emptying into a natural water course or draw which passes near the residence of appellee. The damage is alleged to have arisen from the fact that from January 1, 1911, to the commencement of suit, large quantities of sewage, offal, excrement and accumulations from sewers, cesspools, toilets and street inlets of said city were carried from said city and deposited into said water course past the premises of plaintiff, causing foul and poisonous vapors, gases and odors to arise, rendering the premises of appellee unsanitary and unsafe for human habitation.

The second count is substantially the same as the first as to the allegation of duty on the part of the city, but the breach of the duty is alleged in this count to be that appellant permitted divers persons and corporations in said city to construct, control, maintain and operate the drains in question, describing them as in the other count, and in permitting said drains to be used by divers persons and corporations in said city from the 1st of January, 1911, to the present time. The result and effect of such use are the same as charged in the other count. There is no allegation of special damage in either count.

The evidence tends to show that the ravine in question, while outside of the city limits, runs past the premises of appellee and within approximately thirty feet of her residence, and from there crosses the premises of the Smith-Lohr Coal Mining Company; that the Smith-Lohr Coal Mining Company had erected a dam across this ravine and excavated a pond 50 to 100 feet from appellee’s residence in the ravine from which it obtains water for washing coal; it is claimed that the odors came from the pond in question and that the plaintiff had never been bothered by such odors until after the pond was made. Appellee insists that this last claim is not true or supported by the proof.

There is absolutely no competent proof in this record to show that there was any drain or sewer emptying into the ravine in question through which any sewage passed, that was either built or authorized by appellant city. The acts of municipal corporations can only be shown by the records of such corporation. City of Chicago v. McGraw, 75 Ill. 566. There is no competent proof of any official act by the city council of appellant at any time authorizing the building either of these drains or granting permission to others to build the same. There is proof of the construction of two drains or sewers through which offensive matter was emptied into the ravine referred to. One is spoken of as the Y. M. C. A. sewer, which has its origin and outlet on private property, the outlet being outside of the corporation limits of appellant. The other is spoken of as the North School sewer. Like the Y. M. C. A. sewer it has its origin and outlet on private property, the outlet being outside of the city limits. There is no proof in the record that we have had our attention called to or can find that the city had anything to do with the laying of these sewers, or their use, or in permitting sewage to be emptied into them. Clearly there can be no liability under the first count of the declaration, in which it is charged that the sewers creating the nuisance were constructed by the city, or under the second count in which it is charged that the city permitted the construction and use of the sewers in question. If by permission is meant “official consent,” no such consent of the city is shown; neither is any act of such city having any reference to the construction or use of these sewers or either of them established by the proof. If by the term “permitted” appellee means a failure to prevent, then the proof undoubtedly supports the averment in the declaration; but neither proof nor declaration shows any liability on the part of the city for a nuisance created by any private person, corporation or society. A city cannot be held liable for damages resulting from acts done by persons or corporations which it has not authorized. City of Chicago v. McGraw, 75 Ill. 566; City of East St. Louis v. O’Flynn, 119 Ill. 200; Thayer v. City of Boston, 124 Mass. 132; City of Chicago v. Ramsey, 90 Ill. App. 271; Dillon on Municipal Corporations, sec. 772.

Mere failure on the part of the city to prevent persons or corporations from creating a nuisance will not create a liability on the part of the city. A city is not liable for a nuisance created by private persons on private property. City of Dalton v. Wilson, 118 Ga. 100; City of Georgetown v. Commonwealth, 115 Ky. 382, 61 L. R. A. 673; Barger v. City of Hickory, 130 N. C. 550. Nor for a failure to abate a nuisance created by private persons or corporations upon private property. Davis v. Montgomery, 51 Ala. 139; James’ Adm’r v. Trustees of Harrodsburg, 85 Ky. 191; Butz v. Cavanaugh, 137 Mo. 503; Arnold v. City of St. Louis, 152 Mo. 173; Leonard v. City of Hornellsville, 41 N. Y. App. Div. 106, 58 N. Y. Supp. 266; Miller v. Newport News, 101 Va. 432; Munn v. City of Pittsburgh, 40 Pa. St. 364; Terry v. City of New York, 8 Bosw. 504. Appellee apparently brought this suit on the theory that appellant is liable for its failure to exercise its charter powers with reference to constructing and maintaining sewers and drains. That is not the law. City of Chicago v. Seben, 165 Ill. 371; City of Springfield v. Le Claire, 49 Ill. 476; Goodrich v. City of Chicago, 20 Ill. 445; City of Paris v. Cracraft, 85 Ill. 294; City of Chicago v. Rustin, 99 Ill. App. 47; Carr v. Northern Liberties, 35 Pa. St. 324.

The judgment of the Circuit Court is therefore reversed and the cause is remanded.

Reversed and remanded.


text:
    Henry S. Phelps and Elizabeth Phelps, Appellees, v. City of Pana, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    Municipal corporations, § 938

       — when city not liable for maintenance of nuisance by private individuals. Beld, following Morrell v. City of Pana, ante, p. 609, that defendant city was not liable for injuries caused by a nuisance maintained by private persons on land outside of the city limits.
    Appeal from the Circuit Court of Christian county; the Hon. William B. Weight, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed October 11, 1917.
    Statement of the Case.
    Trespass on the case by Henry S. Phelps and Elizabeth Phelps, plaintiffs, against the City of Pana, defendant, to recover damages alleged to have been caused by the maintenance of a nuisance on lands out-' side of the city limits. From a judgment for plaintiffs, defendant appeals. The facts involved were the same as those in Morrell v. City of Pana, ante, p. 609, except that there was evidence that defendant’s city engineer permitted uncontaminated water from the city waterworks and filter to pass through one of the sewers in question for a time, but there was no evidence that he did so with the knowledge, consent or acquiescence of defendant.
    E. E. Dowell and L. G. Griffith, for appellant; Carl Phillips, of counsel.
    Leslie J. Taylor and C. E. Springstun, for appellees ; James M. Taylor, of counsel.

      See Illinois Notes Digest, Yol». XI to XV, and Cnmnlative Quarterly, same tonic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.


text:
    Henry Noe, Appellee, v. Shoal Creek Coal Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Montgomery county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 11, 1917.
    Statement of the Case.
    Action by Henry Noe, plaintiff, against the Shoal Creek Coal Company, defendant, to recover for personal injuries received while employed in a mine of defendant who had declined to accept the provisions of the Workmen’s Compensation Act. [Callaghan’s 1916 St. Supp. Ü 5475 (1) et seq.~] From a verdict and judgment for plaintiff for $400, defendant appeals.
    At plaintiff’s request, the court instructed the jury:
    “ * * * that it was the duty of the defendant in this case to have used reasonable care and prudence in furnishing to the plaintiff, at and prior to the time of the accident complained of, a reasonably safe place in which to work, and reasonably safe appliances with which to work, and to have used reasonable precaution to keep and maintain the same in reasonably safe condition; and if the jury believe from the preponderance of the evidence, that the defendant failed to perform its duty in this respect, and if you further believe from the preponderance of the evidence, that the plaintiff was thereby injured, in the manner charged in the declaration, then the jury should-find the defendant guilty.”
    At defendant’s request, the court instructed as follows :
    “The court instructs the jury that unless you believe from a preponderance of the evidence, that the defendant was guilty of the negligence as charged in the declaration or some one count thereof, you should find the defendant not guilty.”

      Abstract of the Decision.
    1. Workmen's Compensation Act, § 12

       — when instruction relating to contributory negligence is properly refused. In an action for personal injuries brought by an employee against an employer who has refused to accept the provisions of the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. fl 5475(1) et seq.h, it is not error to refuse to instruct that if the jury “believe from the evidence that the plaintiff was injured by reason of his own negligence, and that the defendant was not negligent,” then they shall find the defendant not guilty, where the defenses of assumption of risk and contributory negligence are conceded to be inapplicable, and the court has told the jury, in substance, that before plaintiff can recover he must prove by a preponderance of the evidence that the injury was caused by defendant’s negligence.
    2. Workmen’s Compensation Act, § 12* — when instruction on contributory negligence is properly refused. In an action for personal injuries brought by an employee against an employer who has refused to accept the provisions of the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. If 5475(1) et seq.h, and in which the defenses of assumption of risk and contributory negligence are conceded to be inapplicable, it is not error to refuse to instruct as follows: “The court instructs the jury that if you believe from the evidence that the plaintiff was injured by reason of his own negligence, and that the defendant was not negligent, then you should find the defendant not guilty,” where the jury have been told, in substance that before plaintiff can recover he must prove by a preponderance of the evidence that the injury was-caused by defendant’s negligence.
    3. Instructions, § 151* — when refusal of correct instruction is not error. Even though an instruction is technically correct, a refusal to give it is not error where it has been covered in another instruction already given.
    Hill & Burlington, for appellant.
    P. McWilliams, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.