text:
    In the Matter of the Estate of Camelo Purvechio, Deceased. H. Earnest Hutton, Administrator, Appellant, v. Calogera Giordona Porrovecchio, Appellee.
    1. Trial, § 293

      —when submission of propositions of law improper. Propositions of law cannot be submitted on the hearing of a petition to have an order granting second letters of administration on the same estate, since such propositions may be submitted only in a case where the right to a trial by jury exists and has been waived.
    2. Executors and administrators, § 52*—when admission of incompetent evidence harmless. On the hearing of a petition by the widow of the intestate to have an order granting second letters- of administration on the estate of her deceased husband vacated, the admission in evidence of pleas in a suit of the administrator and a power of attorney executed by the widow held improper, for the reason such evidence was incompetent for any purpose, but its admission held harmless error where it was admitted on the hearing that the names given to the decedent in the grant of letters stood for the same person.
    3. Executors and administrators, § 45*—effect of two separate grants of letters of administration. Two separate and valid grants of letters of administration on the same estate cannot exist at the same time in the same court.

      4. Executors and administrators, § 49*—authority to revolee invalid grant of second letters. The Probate Court has authority to revoke and set aside a void order granting second letters of administration on the same estate where the order was procured on a petition constructively fraudulent.
    5. Executors and administrators, § 51

      —sufficiency of order revolting invalid grant of letters. An order of the Probate Court revoking and setting aside an order granting second letters of administration need not make any order concerning the acts of the administrator done in pursuance of the appointment thereunder.
    Appeal from the Circuit Court of Vermilion county; the Hon. Morton W. Thompson, Judge presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 5, 1914.
    Rehearing denied June 25, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    Statement by the Court. On January 23, 1912, H. Earnest Hutton, public administrator, filed in the Probate Court of Vermilion county, a petition, sworn to by himself, stating that Peter Chermen died intestate in said county on January 22, 1912, leaving property of the value of three hundred dollars, and a widow and four children, whose names are unknown; that they are nonresidents of Illinois; that there is no person, a resident of Illinois, who is entitled to a distributive share of his estate, and asking that letters of administration upon said estate be granted to petitioner. An order was made appointing petitioner administrator of the estate of Peter Chermen, and letters were issued to him on February 10, 1912. On March 1, 1912, he, as such administrator, filed a verified petition in the Probate Court stating that the estate had little property, but had a cause of action against the Bunsen Coal Company for causing the death of Chermen and asking authority to employ an attorney to obtain a settlement or bring suit on a contingent fee, and an order was made granting the prayer of the petition. Thereafter the administrator employed S. M. Clark, an attorney, to begin a suit against the Brazil Block Coal Company to the May term of the Vermilion Circuit Court.
    On March 23d, H. Earnest Hutton as public administrator filed a petition in the Probate Court of Vermilion county, sworn to by himself, stating that Camelo Purvechio died on January 22, 1912, leaving personal property of the value of $900, and leaving surviving him Calogera Giordona Porrovecchio,. his widow, and three minor children giving their names, all residents of Villarosa, Italy, his only heirs at law, and praying to be appointed administrator of the estate of said Purvechio. An order was made appointing him administrator of said estate on his giving bond, and on March 27th said letters were duly issued to him. On April 27, 1912, as administrator of the estate of Purvechio, he presented to the Probate Court a verified petition stating that the estate had a cause of action for the death of Purvechio against the Brazil Block Coal Company and asking authority to make a contract with J. Ed. Thomas, an attorney familiar with the facts, to procure a settlement or bring a suit on a contingent fee. The court on the day the petition was filed made an order granting the request of the petition. The same day the administrator filed another petition stating that Purvechio was killed on January 22,1912, by a rock falling on bim in room 58, in a certain entry of mine 3, of the Brazil Block Coal Company; that there was a danger mark on the rock that the deceased had been working under, and that there was a serious question whether there was any liability; that the coal company had offered nine hundred dollars, in settlement, and asking the court to authorize such a settlement. The court thereupon made an order authorizing the administrator to settle with the coal company and execute a release, and the administrator on said April 27th received the nine hundred dollars and executed a release to the coal company.

      On May 29,1912, “Porrovecchio Giordona Calogera, surviving widow of Porrovecchio Carmelo, deceased,” filed a petition in the estate of “Camelo Purvechio” sworn to by Salvatore Balsamello, who is the attorney in fact of the widow. This petition states that petitioner is the widow of “Porrovecchio Carmelo, deceased;” that there are three minor children of the deceased, and gives their names and. ages: “that her said husband was known in Vermilion County, Illinois, as Peter Chermen, and received a certificate of competency as a coal miner issued by the Miners’ Examining Board of Vermilion County * * * wherein he was known as Pete Chermen of Westville (Town), Vermilion (County), Illinois (State).” That he died January 22, 1912, of injuries received through the negligence of the Brazil Block Coal Company; that an inquest was held over the remains of said deceased and that the verdict described him as Pete Chermen. It then sets up the issuing of the two sets of letters of administration and asks that the letters granted on the petition of March 23d, be declared void, for the reason the court had no jurisdiction to issue such letters when letters had already been issued on the estate of the deceased.
    The administrator answered the petition denying the statements therein except as to the issuing of letters to him and recites the settlement made in the name of the Purvechio estate.
    On the hearing upon the petition of the widow, the court found that the two administrations were on the estate of the same person and set aside and revoked the letters upon the estate of Purvechio, but made no order as to' the funds on hand received from the coal company. An appeal was taken to the Circuit Court where, on a hearing, an order was made finding the Probate Court had no authority to grant letters of administration to the public administrator upon the estate of Purvechio after having granted letters in the same estate under the name of the estate of Peter Chermen, deceased. Hutton as administrator of Purvechio appeals.
    H. M. Steely, J. Ed. Thomas and H. M. Steely, Jr., for appellant.
    Cruice & Langille, for appellee.

      Seo Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, game topic and section number.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

It is insisted the court erred in refusing to hold certain propositions of law presented by the appellant. This is not a case wherein the parties were entitled to a trial by jury. Propositions of law may be submitted only where the right to a trial by jury exists and has been waived. People ex rel. James v. Chicago, B. & Q. R. Co., 231 Ill. 112; Martin v. Martin, 170 Ill. 18; Schofield v. Thomas, 236 Ill. 417. There was no error in refusing to hold the propositions presented.

It is further argued that the court admitted improper evidence. The only issue before the court, was whether Chermen and Purvechio were one and the same party. The petition of the widow asserts that her husband, Purvechio, was known in Vermilion County as Peter Chermen, and that there are two grants of letters of administration in the same estate. The administrator was a witness and he was asked the question: “When did you find out that the name of Peter Chermen and the name of Purvechio stood for one and the same party, deceased, in the same estate?” Ans. “As near as I can remember now, it must have been sometime in May of the same year.” There was also other proof to the same effect that Chermen and Purvechio was the same person. The court over the objection of the administrator admitted in evidence the pleas in the suit of the administrator of the estate of Peter Chermen against the Brazil Block Coal Company and the power of attorney from the widow to Balsamello. These pleas and the power of attorney were all clearly incompetent for any purpose, but inasmuch as the administrator admitted that Chermen and Purvechio was one and the same person, the admission of the incompetent evidence was harmless error.

It is also insisted that the Probate Court had no authority to vacate the order appointing Hutton administrator of the estate of Purvechio. The contention of appellant is that the Probate Court can only revoke letters of administration for one of the reasons mentioned in sections 19, 26, 28, 29 or 30 of the Administration Act. (J. & A. fífí 67, 75, 77, 78, 79.) These sections provide for the revocation of original letters of administration, when they have been improperly granted to certain parties when other parties are by law entitled to administer, or when they are granted on some false pretense or for waste, etc., and with the exception of section 26 can have no application to the case under consideration.

Although Probate Courts have not general chancery jurisdiction, yet, in probate matters, they have jurisdiction of an equitable character and may adopt the forms of equitable proceedings and grant relief of an equitable nature, where justice and equity require such relief. Dixon v. Buell, 21 Ill. 203; Chicago Title & Trust Co. v. McGlew, 193 Ill. 457; Bliss v. Seaman, 165 Ill. 422; Thomson v. Blach, 200 Ill. 465; Carter v. Pierce, 114 Ill. App. 589. It is not contended that when the Probate Court had lawfully granted letters on an estate that the same court could legally grant a second set .of letters while the first were in full force. The rule'appears to be that two separate and valid grants of letters of administration cannot exist at the same time in the same court. Petigru v. Ferguson, 6 Bich. Eq. (S. C.) 378; Rambo v. Wyatt’s Adm’r, 32 Ala. 363; Holmes v. Oregon & C. Ry. Co., 5 Fed. 523; Bru baker’s Appeal, 98 Pa. St. 21; Razor v. Mehl, 25 Ind. App. 645. There is an inherent power in the Probate Court to correct an error which it had been led into by a mistake of facts as to its jurisdiction. The legal title to the estate of the deceased vested in the administrator of the estate of Peter Chermen in trust for the parties entitled thereto. Cross v. Carey, 25 Ill. 562.

Until a valid revocation of letters of administration already granted on an estate is made, the County Court has no power or jurisdiction to appoint another as administrator de bonis non of the same estate, and an order for such appointment under such circumstances “was absolutely void.” Munroe v. People, 102 Ill. 408. An order appointing a special administrator to collect without revoking the letters of a duly qualified and acting executor is void. Day v. Bullen, 226 Ill. 72. We are of the opinion that the Probate Court had full authority, in a direct proceeding for that purpose, to revoke and set aside a void order made by it on a petition constructively fraudulent.

It is also argued that the court should have consolidated the two administrations and made some order disposing of the nine hundred dollars paid by the coal company to Hutton as administrator of Purvechio. We fail to see any right of the court to consolidate a valid with an invalid grant of letters of administration or to make any order concerning the acts of the administrator done in pursuance of an invalid appointment. The order vacating the administration in the estate of Purvechio is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Thompson Mr. Justice Philbrick

license: Public Domain

text:
    Thomas J. Meadors, Plaintiff in Error, v. Illinois Central Railroad Company, Defendant in Error.
    1. Masteb and servant, § 485

      —when failure of conductor to observe rule of railroad company contributory negligence. In an action against a railroad company for personal injuries received by a conductor in a collision with a northbound train while he was in charge of an extra southbound train, where it was alleged that defendant was negligent in failing to warn plaintiff of the approach of the northbound train, held that a direction of a verdict for defendant was not error, it appearing that there was a rule of the company giving the northbound train the right of way, and that the plaintiff violated another rule of the company requiring conductors on southbound trains to register at stations and seek information.
    2. Master and servant, § 485*—when failure of employee to observe rules constitutes contributory negligence. Where a railroad employee has violated a rule of the railroad company designed for the protection of himself and the patrons of the company, which if he had observed be would not have been injured, such violation of itself is such contributory negligence as will preclude recovery.
    Philbrick, J., took no part in the decision of this case.
    Error to the Circuit Court of DeWitt county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 5, 1914.
    Herrick & Herrick, for plaintiff in error.
    John G. Brennan and Lemon & Lemon, for defendant in error.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an action brought by Thomas J. Meadors, the plaintiff in error, against the Illinois Central Railroad Company, defendant in error, to recover damages for personal injuries received by plaintiff, while an employee of defendant, in a railroad collision averred to have been occasioned by the negligence of the defendant. At the first trial in the Circuit Court a jury returned a verdict for the defendant, a motion for a new trial was allowed, and on the second trial, after the plaintiff had introduced his evidence, the defendant requested a peremptory instruction which was refused; at the close of the defendant’s evidence it again requested a peremptory instruction which was. given. The ruling of the court in thus withdrawing the case from the jury presents the ultimate question for determination.

The declaration contains five counts. The first count avers that the plaintiff at the time of the injury was in the employ of the defendant as a railroad conductor in charge of train “extra 913” running from Decatur to Centraba; that it was the duty of defendant to warn plaintiff of the approach of other trains running towards the train in charge of plaintiff, and that the defendant negligently failed to warn plaintiff of the approach of “extra 593” going north, so that the train of plaintiff would take a siding at Oconee and there permit said extra 593 to pass said extra 913 in safety, and that defendant negligently permitted extra 913 in charge of plaintiff to depart southward from Oconee, and by reason thereof said trains collided, etc.

The second and third counts aver negligence of the defendant in that the operator at Pana failed to deliver an order of the train dispatcher to hold extra 913 at Oconee. The fourth avers negligence in failing to signal extra 913 to stop at Pana, and the fifth avers that the defendant retained in its employ an incompetent switch tower operator at Pana and that by reason of his negligence the collision occurred. Bach count avers that plaintiff was in the exercise of due care for his own safety.

The undisputed evidence is that the plaintiff was a conductor, who had been in the employment of defondant about fifteen years, running trains between Clinton and Centralia. On March 2, 1910, plaintiff’s run ended at Decatur, where he stayed all night. The next morning he received an order to run extra 913, consisting of an engine and caboose, from Decatur to Bamsay, which is eighteen miles south of Pana.

Plaintiff testified that he was familiar with the rules and time tables of the Company. Bule B 2 is: “All northbound trains are superior to trains of the same class in the opposite direction.” Bule B 5 is: “Train registers are kept at Clinton, Marva, Decatur and Pana. See rule 613. Buie 613 is: “At points where train registers are kept, conductor must enter in the register all information required by its form and before proceeding must know whether all the trains due, which are superior or of the same class, have arrived or left.” At Pana the defendant’s railroad is crossed by the C. & E. I., the B. & 0. and the Big Pour; the Big Four crossing is between two hundred and three hundred feet south of the B. & 0. crossing, and is the most southerly of these crossings. A telegraph office and a tower for managing the interlocking system is at the Big Four intersection. The machinery for the tower plant is in the first story of this building, the telegraph office in which was the train register is in the second story and the tower man is in the third story. The interlocking plant has two signals which are controlled by the tower man; the telegraph operator has nothing to do with the signals. When plaintiff’s train arrived at the B. & 0. crossing, the home signal was set against train 913. The train stopped and plaintiff got off the caboose and had started towards the crossing and the telegraph office, when the engineer whistled and the plaintiff says that he looked at the signal and seeing it was clear got back on the train without going to the office to register and the train proceeded on south past Oconee and two miles south of there a collision occurred with an extra going north. Plaintiff was asked this question, “Didn’t you know it was your duty under the rules to go up in the second story and personally register?” He answered, “Yes, sir.” He was also asked, “Didn’t you know, when you went up there to register, that if there were any orders for you, it was the duty of the operator to give them to you? Didn’t you know that? ’’ His answer was “Yes, Sir.’’ The train passed the registering station at from ten to twenty miles an hour. The evidence also shows that there was a custom to allow superior trains, those going north, if the conductor had special permission from the train dispatcher, to register by a slip, that is to throw a slip of paper giving the necessary information, as the caboose went by the office, to the operator who copied it into the register, but that there was no authority for any conductor to so register without the direction of the train dispatcher. Plaintiff undertook to show an habitual violation of the rule to register, and at his request the register book used for three months prior to the accident was produced and used in evidence and it did show that on several occasions while going north he had registered by a slip, but he only attempted to testify to one occasion during that time that he went south without personally registering, and he was not sure but that he was “deadheading” south at that time. The register book and the evidence of the plaintiff show conclusively that trains going south were always registered by the conductors personally. These registering stations are the stations to which orders are telegraphed and where, when the conductor goes to register, he gets his orders.

It is also undisputed that there was, when plaintiff’s train passed Pana, an order there in the registering station, for the conductor of extra 913 south to meet and pass extra 593 north at Oconee. There is a conflict in the evidence as to whether the order board was or not set against the train, but that is not material. The rules in evidence and the custom as shown by plaintiff required the conductors of all southbound trains to personally register in the telegraph office, where they would get orders for their subsequent procedure. The conductors are in charge of the trains and the engineers are not required to register and are under the orders of the conductors; the engineer by whistling could not relieve the plaintiff of his duty of registering in the telegraph office and getting the order that was there for him.

Where in a personal injury case the plaintiff has violated a rule of the defendant designed for the protection of the employee and the patrons of defendant which, if the plaintiff had observed, he would not have been injured, this of itself is such contributory negligence as will preclude a recovery. Elgin, J. & E. Ry. Co. v. Herath, 230 Ill. 109; Abend v. Terre Haute & I. R. Co., 111 Ill. 202; Illinois Cent. R. Co. v. Winslow, 56 Ill. App. 462. If the plaintiff at the time of the accident had been running a regular train south, his failure to observe the rules would have been such want of ordinary care as would defeat a recovery, and his failure to observe such rules while in charge of an extra train was much more culpable.

No judgment could be sustained on the evidence of plaintiff in conection with the rule of the Company with which he was familiar, because of his contributory negligence, and there was no error in the court instructing a verdict for the defendant. The judgment is affirmed.

Affirmed.

Mr. Justice Philbrick

took no part in the decision of this case.


author: Mr. Presiding Justice Thompson

text:
    The People of the State of Illinois ex rel. Stella Chaney, Appellee, v. Otis Preston, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Bastards, § 21

      —when evidence of intercourse with other men competent. In a bastardy proceeding it is competent for the defendant to introduce evidence to show that the relatrix had intercourse with other men about the time she became pregnant, but such evidence must be limited to a period of time within which, in the course of nature, the child could have been begotten.
    2. Bastards, § 24*—what may he ashed of relatrix on cross-examination. The relatrix in a bastardy proceeding may be asked on cross-examination whether she had intercourse with other men within the period in which the child could have been been begotten.
    3. Witnesses, § 239*—when redirect examination improper. Where the relatrix in a prosecution for bastardy in the County Court was asked on cross-examination if she had not testified to certain things at the preliminary examination before a justice of the peace, permitting counsel for the People to ask her on re-examination if she had not testified to other things before the justice that were not connected with the questions asked on cross-examination, held improper, since a re-examination should have been confined to such answers, if any, as were connected with and modified or explained the answers inquired about on cross-examination.

      Appeal from the County Court of DeWitt county; the Hon. Feed C. Hile, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed May 5, 1914.
    Statement of the Case.
    Bastardy proceeding by the People of the State of Illinois, ex rel. Stella Chaney against Otis Preston charging defendant with being the father of a bastard child. To reverse a judgment entered on a finding in favor of plaintiff, defendant appeals.
    Lemon & Lemon and Herrick & Herrick, for appellant.
    A. F. Miller and L. O. Williams, for appellee.

      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 Thompson

delivered the opinion of the court.

4. Bastards, § 34*—when instruction as to effect of change of name of relatrix properly refused. In a prosecution for bastardy where it appeared the relatrix had procured a divorce under a different name, the refusal of a requested instruction telling the jury that if they believed such was her correct name they should find the defendant not guilty, held not error, where the evidence shows that she was known under the name in which she made the complaint, that she was known by such name and the proof corresponded with the complaint.

5. Bastards, § 22*—degree of proof to authorize verdict of guilty. A prosecution for bastardy is a civil proceeding and a preponderance of the evidence is all the law requires to authorize a verdict of guilty, and where an instruction requires a clear preponderance of the evidence the court may properly modify it by striking out the word “clear.”

6. Bastards, § 34*—when instruction as to effect of verdict of guilty improper. In a prosecution for bastardy, instructions given at the request of the People informing the jury that a judgment of conviction only meant that the defendant would be compelled to pay the mother for the use of the child one hundred dollars for the first year and fifty dollars, for nine succeeding years, if the child lived that long, held argumentative and improper.

7. Appeal and error, § 1514 —when remarks of counsel prejudicial. Statement made in final argument by counsel for the relatrix in a bastardy proceeding that “if a man would debauch a daughter of mine as this man debauched this woman, there wouldn’t be any jury to pass upon that question,” etc., held inflammatory and prejudicial.


text:
    William J. Hall, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    1. Masteb and sebvant, § 704

      —when recovery for injury to section hand caused by a kicked car sustained by the evidence. In an action by a section hand against a railroad to recover for personal injuries received, caused by a locomotive kicking a car on a switch track where he was employed in gathering up scrap iron, held that a verdict for plaintiff was not manifestly against the weight of the evidence.
    2. Masteb and servant, § 152*—when kicking cars constitutes negligence. Kicking cars and running switch engines and cars in railroad yards without giving adequate warning of their approach constitute negligence.
    3. Damages, § 115*—when verdict for personal injuries excessive. A verdict in a personal injury case for two thousand five hundred dollars held excessive where the only wounds found on plaintiff were a cut on the head about two inches long and a bruise on his leg, and it appeared that he was able to do some work a week after the injury and soon thereafter to do the work of a farm hand, and that many of the troubles from which he suffered at the time of the trial were existing before he received the injuries sued for.
    4. Appeal and error, § 1500*—when presence of family of plaintiff in court room prejudicial. The presence of the wife and children of plaintiff in the court and their attraction of the attention of the jury during arguments of counsel and while the court was reading instructions to the jury, held prejudicial.
    5. Appeal and ebbob, § 1514*—when statements of counsel in argument prejudicial. Conduct of counsel in his closing argument to the jury in making a reference to the defendant Railroad Company as a soulless corporation and stating that “this great corporation, with its power of driving machinery by steam, sends a car down that injures and maims this man,” held prejudicial error, and its effect not cured by the court sustaining an objection to the statements and warning counsel to keep within the record, nor by counsel immediately apologizing for making them.
    6. Appeal and ebbob, § 569*—when improper argument of counsel cannot be excepted to. Reference by counsel for plaintiff in his argument that plaintiff was a married man with two or three children, though irrelevant and improper, cannot be excepted to where there was evidence in the record as to plaintiff’s domestic relations, to which there was no objection made.

      Appeal from the Circuit Court of Tazewell county; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed May 5, 1914.
    W. B. Curran, for appellant; Winston, Payne, Strawn & Shaw, of counsel.
    Potts, Conaghan & Powers, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an action in case by which appellee seeks to recover from appellant damages for personal injuries sustained by him averred to have been caused through the negligence of its servants while he was in its employ. The jury returned a verdict finding appellant guilty and assessing appellee’s damages at two thousand five hundred dollars. From a judgment rendered on that verdict this appeal is prosecuted.

The declaration consists of several counts. One count avers, in substance,, that the appellee was an employee of appellant required to work under the direction of a section foreman among its railroad and switch tracks in the village of San Jose and to gather rubbish and iron on its right of way; that while at work removing a drawbar thrown from its cars on the right of way, and in the exercise of due care for his own safety, a locomotive and train of cars was driven upon the main track through said village until it reached the end of the switch track on which appellee was working, and that appellee’s servants, who were not fellow-servants of appellee, then detached a car from the train and negligently drove said car on said switch track striking and injuring appellee. Another count avers that the car detached from the train was negligently driven on the switch track without a brakeman thereon or any means of control, and another count avers that the detached car was negligently forced on the switch track without sounding an alarm or giving any signal.

It is contended by appellant that the judgment cannot be sustained for the reason that the evidence does not show that the appellee was in the exercise of due care when he was injured and that there was no negligence on the part of appellant. There have been three jury trials in this case, on the first the jury found the defendant not guilty, in the second the jury disagreed, and this appeal is from the judgment on the third trial. The evidence shows that the appellee was a section man of appellant working on its tracks at San Jose; that it is the duty of the section men to gather up scrap iron along the right of way and place it on a scrap iron stand at San Jose from which it is loaded into a car once a month. There are three tracks running from the northeast to the southwest through the village. The most northwesterly of these is known as the P. & N. track, the center track is called the High Line or main track and the southeasterly is the switch or house track. The tool house in which is kept the hand car with the tools used by the section men stands a few feet south of the switch track. The right of way has no obstructions on it north and east of the tool house. A short distance southwest of the tool house is the scrap iron stand, which is a platform about six by eight feet and four inches high. The freight house is about two hundred and fifty feet southwest of the scrap iron stand and on the same side of the switch track. May 5,1910, the date of the accident, was scrap iron day and early in the forenoon of that day the section foreman had directed that the car should be loaded that afternoon. The section men gathered scrap iron during the forenoon, and after dinner the foreman with appellee and one Lough went with the hand car about 1,200 feet to the southwest end of the yard to get a drawbar. The hand car with the drawbar on it was taken on the main line to opposite the scrap pile; the drawbar was carried by the three men over between the east rail of the switch track and the scrap iron pile and placed about four feet east of the east rail, and the hand car was put in the tool house. In the drawbar was a knuckle that was to be taken out so as to make the bar lighter to load. Appellee said to the foreman that the drawbar “is not in the clear it is not safe,” and the foreman replied, “do you want to throw it over the right of way fence?”

While the men were at work on the drawbar a freight train came in from the southwest. The locomotive was uncoupled and hacked on the switch track from the southwest to the freight house, past the men working on the drawbar, to get three cars, and then went back by the men with the three cars past the switch stand ' at the southwest end of the switch track. Appellee went to the tool house and got a spike maul to try and knock the knuckle loose, and after striking it a few times was standing in a stooping position near the track watching the other two men working with the drawbar, when the locomotive kicked two cars in from the northeast on the main line and the third car on the switch track. This car struck appellee and caught his clothing in such a way that he was dragged a short distance before it stopped, and by the striking and dragging injured him. The locomotive was between two and three hundred feet northeast from where the car struck appellee. There is a conflict in the evidence as to whether or not the bell was ringing on the engine or there was a brakeman on the car that struck appellee and as to the speed the car was running when it struck him.

While there may be a preponderance of evidence that there was a brakeman on the ear and that the bell was ringing and that the car was running very slowly when it struck appellee, we are not able to say as a matter of law that the servants of appellant were not guilty of negligence, or that it was not shown that appellee was in the exercise of due care at the time he was injured. “The practice of kicking or dropping cars and running switch engines and cars in railroad yards without giving adequate warning of their approach to employees engaged in the performance of their duties, clearly constitutes negligence.” Adams v. Cleveland, C., C. & St. L. Ry. Co., 243 Ill. 191, affirming 149 Ill. App. 574; Chicago Junct. Ry. Co. v. McGrath, 203 Ill. 511; Pittsburg, C., C. & St. L. Ry. Co. v. Bovard, 223 Ill. 176. The case is one/where it cannot he said that all reasonable minds would agree from the evidence in the record that the appellee was not in the exercise of ordinary care and the issues were therefore properly submitted to a jury for their determination; neither can it be said that their conclusions thereon are clearly and manifestly against the weight of the evidence, and therefore this court is bound by their findings on those questions.

The appellee was taken to a physician and the only wounds found on him were a cut an inch and a half or two inches long on his head and a bruise on his leg. The skull was not fractured nor any bones broken. He did not require any treatment after May 8th, although he visited the physician at his office until two weeks after the receipt of the injury. He however claimed at the time of the trial to be suffering from varicose veins, pain in the back and headache. The proof also shows that before the time of his injury he complained that he was suffering from pains in his side and the small of his back and that he exhibited his urine to his fellow-workmen to show that he was passing yellow matter, and that before the injury he had been treated by a physician for cystitis or inflammation of the bladder. The evidence also shows that in a week after the injury he was at work in his garden and he admitted that he worked on a farm at regular wages plowing corn in June and did the ordinary work of a farm hand substantially all that summer and the following spring and summer. Upon a review of all the evidence in the case we conclude that before the receipt of the injuries sued for, the appellee was suffering from many of the troubles of which he now . complains, and that the damages awarded are excessive and that the cause should be submitted to another jury.

It is also assigned for error and argued that counsel for the appellee in the closing argument to the jury made improper and inflammatory statements calculated to predudice the jury and inflame them against the appellant ; and that the wife of the appellee and two children, one of them an infant, were present in the court and attracted the attention of the jury during the arguments of counsel and while the court was reading the instructions to the jury to such an extent that the court requested the wife of appellee to take the children from the room.

Among other things said by counsel in his closing argument to the jury were: ‘ Charles Bright is a man, to whom the finger of scorn cannot be pointed at by the soulless corporation, the Chicago & Alton Railroad Company * * *. No gentlemen of the jury, but this great corporation, with its power of driving machinery by steam, sends a car down that injures and maims this man.” Counsel also referred to appellee as a married man with two or three children. Appellant had offered evidence that appellee was a man with a family, and appellee on cross-examination, without any objection thereto, showed that he had a wife and two children. There being evidence in the record as to appellee’s domestic relations, to which there was no objection, the argument of counsel while it was irrelevant and improper cannot be excepted to in that regard. Counsel for appellee do not contend that the statements complained of were not improper, but their only reply is that the trial court having ruled that the statements were improper, appellant has no reason to complain further. Although the court ruled that the statements of counsel hereinbefore referred to, with others to which objections were made, were improper and warned counsel to keep within the record, and counsel in most instances immediately apologized for making them, yet neither the ruling of the court nor the apologies of counsel can remedy the injurious and prejudicial effect of such improper appeals for sympathy and inflammatory statements. Chicago Union Traction Co. v. Lauth, 216 Ill. 183; Parlin & Orendorff Co. v. Scott, 137 Ill. App. 455. The improper argument to the jury and staging of the case probably influenced it in arriving at its verdict, not only as to the amount but possibly otherwise. For the reasons indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Frank K. Lemon, Defendant in Error, v. Richard Snell, Plaintiff in Error.
    (Not to Tbe reported in full.)
    Error to the Circuit Court of DeWitt county; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 5, 1914.
    Statement of the Case.
    Action by Richard A. Lemon and Frank K. Lemon, partners, against Richard Snell to recover attorneys’ fees for services performed for defendant in litigation concerning the estate of Thomas Snell, deceased. After the suit was begun, Richard A. Lemon died and the suit was prosecuted in the name of Frank K. Lemon, surviving partner.
    The claim of plaintiffs is for $15,000 for services rendered in the contest of the will of Thomas Snell, in which suit plaintiffs were attorneys for Richard Snell, contestant, and for $5,500 for services rendered in the estate for defendant as administrator after the suit to contest the will was terminated. A jury returned a verdict in favor of plaintiff for $1,750, on which judgment was rendered. To reverse the judgment, defendant prosecutes a writ of error.
    Abstract of the Decision.
    1. Attorney and client, § 134

      —admissibility of evidence. In an action to recover attorneys’ fees permitting plaintiff to testify as to the value of services which had been rendered and paid for under an express contract, and permitting him to testify that a claim was made for further compensation for the services and that defendant had made an offer to give $1,500, held error, for the reason that defendant had settled for such services and that the offer to pay a further sum was a promise to malte a gift for which there was no consideration.
    2. Attorney and client, § 127*—when amount of compensation not excessive. In an action for attorneys’ fees, a verdict for $1,750 held not excessive where the amount involved was large, and the questions in issue were bitterly contested and a clear preponderance of the evidence would have justified a larger verdict.
    3. Appeal and error, § 1489*—when admission of improper evidence afterwards excluded not prejudicial. In an action to recover attorneys’ fees, the admission of impropper evidence which was afterwards excluded, held not prejudicial as influencing the jury to allow an excessive verdict where it appears that the jury on a consideration of the proper evidence could not have returned a verdict for a less amount.
    Stone, Oglevee & Franklin, for plaintiff in error.
    Herrick & Herrick, for defendant in error.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.


author: Mr. Justice Eldredge

text:
    William B. McCoy, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    1. Master and servant, § 721

      —when existence of fellow-servant relation is question of law for the court. Whether the evidence establishes the relation of fellow-servants within the definition thereof is ordinarily a question of fact for the jury, and it is only when the facts are undisputed, or so conclusively shown that reasonable minds must reach the same conclusion therefrom, that the court is privileged to pass upon it as a question of law.
    2. Master and servant, § 577*—burden of proving relation of fellow-servants. The burden of proving the relation of fellow-servants existed is upon the master even though such relation is negatived in the declaration.
    3. Master and servant, § 350*—assumption of rislc. A servant does not assume, as an incident to his employment, the risk and hazard of the negligence of other employees not his fellow-servants.
    4. Master and servant, § 729*—when question whether members of switching crews are fellow-servants for jury. Whether members of different switching crews are fellow-servants, held under the evidence to be a question for the jury.
    5. Master and servant, § 759*—when position of switchman on car not contributory negligence as matter of law. Where a foreman of a switching crew was riding on the end of a steel hopper car and his legs were injured by coming in contact with a car, which was setting on a switch track and was not in the clear, held that the position in which he was riding and his failure to see the car on the switch track was not contributory negligence as a matter of law, but that such question was for the jury.
    6. Master and servant, § 611*—admissibility of evidence. Objections to questions which simply called for conclusions of a witness and his reasons for not warning plaintiff of his danger and an objection to an offer to prove what the witness assumed plaintiff would see and what the supposed plaintiff would do,' held not erroneously sustained.
    7. Master and servant, § 796*—when requested instruction properly refused as inapplicable to pleading. Requested instructions telling the jury, in substance, that all the members of the switching crew of which plaintiff was foreman were fellow-servants and that if the negligence of any member thereof was the proximate cause of the injury plaintiff could not recover, held properly refused, where the gravamen of a count in the declaration was the negligence of defendant in employing an incompetent servant as a member of the switching crew.
    8. Masteb and sebvant, § 796*—when requested instruction properly refused. Requested instructions stating that plaintiff cannot recover if his injuries were caused by the negligence of fellow-servants, held not improperly refused, where no instruction was given or offered attempting to define what constitutes the relation of fellow-servants.
    9. Damages, § 122*—when $15,000 for injury to both legs not excessive. A verdict of $15,000 for an injury to the legs of a foreman of a switching crew held not excessive, where the flesh of his left leg was more or less torn from above the knee to the ankle and both bones of right leg were broken below the knee, and necessitated amputation five inches below the knee.
    10. Appeai and ebbob, § 1633

      —when improper remarles of counsel not reversible error. Improper remarks of counsel in his argument held not to be of such a character as to be cause for reversal, where an objection to the remarks was sustained, the jury instructed to disregard them anil counsel disclaimed before the jury any intention to mislead them.
    Appeal from the Circuit Court of McLean county; the Hon. Coeostin D. Mybbs, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed May 5, 1914.
    Rehearing denied June 25, 1914.

      Certiorari allowed by Supreme Court.
    Bracken & Young, for appellant; Silas H. Strawn, of counsel.
    DeMange, Gillespie & DeMange, for appellee.

      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. Justice Eldredge

delivered the opinion of the court.

Appellant prosecutes this appeal to reverse the judgment of the Circuit Court entered against it in favor of appellee for $15,000, in an action on the case for personal injuries.

The declaration consists of four counts. The first alleges, with the usual and necessary averments, in substance, that appellant by its servants, not fellow-servants of appellee, negligently placed a flat car on a switch track in such close proximity to the intersection thereof with another track that cars passing over the latter could not clear said flat car, and by reason of which appellee, while riding on a car traveling over the latter track in the performance of his duties, using due care for his own safety, was crushed between the car on which he was riding and said flat car and injured. The second count alleges in substance that there was a rule or custom of the members of the switching crew operating in appellant’s yards to warn each other of such dangers, of which rule and custom appellant had notice, and that appellant negligently employed an incompetent switchman who did not know of such rule and custom, and who saw the danger but negligently failed to warn appellee thereof. The third and fourth counts are substantially the same as the first count. The plea of general issue was filed to the whole declaration.

The points most seriously urged by appellant are, that appellee was guilty of contributory negligence, that he assumed the risk and that the negligence in placing said flat car in such position was that of fellow-servants.

The questions of contributory negligence and assumed risk under the facts in this case are closely allied, and a proper disposition of them suggests first the consideration and determination of whether the evidence establishes as a matter of law that the negligence which caused the injury was that of fellow-servants.

The city of Bloomington is the junction point of the Chicago, Kansas City and St. Louis branches of appellant’s railroad system. Extensive switch yards are there located for the purpose of assembling and breaking up trains of cars which arrive from the west, northeast and southwest over these different branches. These switch yards extend from a point somewhat south of Bloomington north for a distance of about three and a half miles to a point near the town of Normal. They are located on either side of the main tracks •of appellant’s road and at some points are fifteen tracks in width. They are divided into what are designated as the east and west yards and are commonly called in the testimony train yards. From these train yards also extend switch tracks running to numerous private industries located in the vicinity thereof. The switching in the train yards is usually performed by two switch engines each manned with a switching crew, called a train yards crew. One engine and crew operate in the east train yard and one in the west train yard. A third, or extra train yards engine, spoken of as a tramp engine, and crew, at times assists the two regular train yards engines and crews in both the east and west yards, and is also used in hauling cars of merchandise to the private switch tracks of the various Bloomington industries located along appellant’s right of way. This latter work is commonly called outside work. All the train yards crews worked under the orders of the yardmaster, John Connors, and the superintendent of transportation, Patrick Mulhern.

North and west of the train yards at the western limits of Bloomington appellant maintains and operates the principal repair shops of its system. They consist of many large buildings and in connection therewith are independent switch yards, which are commonly called shop yards. The shops and shop yards cover approximately eighteen or twenty blocks in area. The switching in the shop yards is performed by a switch engine with a crew called the shop yards crew. This crew works under the orders of the superintendent of machinery, Patrick Maher. The shop yards are connected with the train yards by a single track or lead, which runs from the west train yards to the gate at the shop yards, at which point it connects with the tracks of the shop yards*

There is evidence tending to show that when cars were received in the train yards destined for the shop yards, a train crew would place such cars on the shop yards lead, near the entrance to the shop yards, from which place the shop yards crew would take them to the shops within the yards; that at such times it was unnecessary and unusual for the two crews to meet. The evidence further tended to show that when cars were to be delivered from the shops to the train yards, they were set out on the tracks by the shop yards crew, which acted independently of the train yards crews, and that this was usually done when the latter crews were in distant parts of the train yards; that occasionally when cars of material were needed in the shop yards, and their delivery by the train yards crews was delayed, the shop yards crew would take them from the train yards to the shops; that the shop yards crew spent almost all of its time within the shop yards; that the train yards crews performed no duties in the shop yards, nor with the shop yards crew, and vice versa; that there was no rule or regulation of appellant governing a mutual action of the crews of the two departments, and that these crews seldom met and when they did it was by mere chance. Occasionally in times of emergency, when the train yards crews were rushed with work, by special order, the shop yards crew assisted them, but at such times the shop yards crew became a train yards crew, and subject to the orders of the officers controlling the train yards, and did not act in its capacity as a shop yards crew.

One of the tracks in the train yards was called the McCarthy track. Another track therein, called old track No. 1, runs alongside of it for some distance and connects with it. The McCarthy track will hold but six average cars, and leave the cars in the clear.

On the morning of the accident six cars were standing on this track when the shop yards crew pushed a seventh car from the shop yards through the switch on to the south end of the McCarthy track. The north car of the six standing on the track was thereby moved north towards the junction of said tra,ck with old track No. 1 so that the northeast comer of said north car stood not more than eighteen inches from the west rail of old track No. 1. At this distance it would permit some cars to pass on the latter track, but would scrape the sides of others. The evidence further tended to show that it was the practice and custom to leave cars on the switch tracks so they would clear cars passing on adjoining tracks and that it was unusual not to do so. Of course, this must necessarily have been so or the business in the yards could not have been carried on.

Appellee generally was a member of the west train yards crew, but when it became necessary to use the extra or tramp engine he acted as foreman of the crew attached to that engine. On the morning in question he went to work at seven o’clock with the west train yards crew, and about nine o’clock, under orders, took charge of the extra train yards engine and crew, and while riding on the sill of a steel hopper car, which his engine was hauling on old track No. 1, with his back towards the car, his legs hanging over the sill and occupied in reading his written orders, as the hopper car passed the car on the McCarthy track his legs were caught and crushed between the comer thereof and the car on which he was riding.

It must be conceded that the leaving of the flat car on the McCarthy switch in the position mentioned by the shop yards crew was negligence, but appellant contends that the members of that crew and appellee were fellow-servants. Whether the evidence establishes the relation of fellow-servants within the definition thereof is ordinarily a question of fact for the jury to determine, and it is only when the facts are undisputed, or so conclusively shown that reasonable minds must reach the same conclusion therefrom, that the court is privileged to pass upon it as a question of law. The burden of proving that such relation existed was upon the defendant, even though such relation is negatived in the declaration. Chicago & A. R. Co. v. House, 172 Ill. 601; Hartley v. Chicago & A. R. Co., 197 Ill. 440. It has long been established as the law in this State that servants of a common master cannot be held to be fellow-servants, so as to absolve the master from liability for an injury to one caused by the negligence of another unless they directly co-operated with each other in a particular business as distinct from indirect co-operation of the general business of the master, or that their general duties must bring them into habitual association, so that they may exercise a mutual influence upon each other promotive of proper caution. Lyons v. Ryerson, 242 Ill. 409; Linguist v. Hodges, 248 Ill. 491.^ From the evidence in this case it cannot be said that all reasonable minds must come to the same conclusion that the relation of fellow-servants existed between said respective crews. Their duties were separate and distinct, they were operating under different departments and received their orders from different officers. The officers controlling the crews in one department had no control, authority or jurisdiction over the crews in the other department. The evidence also tended to show that in the performance of their respective duties they seldom met, and if they did it was by chance and not by reason of any direct co-operation in any particular business. At least it was not undisputed that there was a direct co-operation between them, nor that in the performance of their duties they were brought into habitual association. It was for the jury to determine from all the evidence, as a question of fact, whether such relation existed, and its verdict is conclusive on this question in this court. The facts in this case are substantially analogous to those in the case of Hartley v. Chicago & A. R. Co., supra.

The jury having found that the relation of fellow-servants between appellee and the members of the shop yards crew did not exist, the contention that appellee assumed the risk of the negligence of the latter crew in leaving the car in the place in question cannot be sustained. Appellee did not assume, as incident to his employment, the risk and hazard of the negligence of other employees of appellant, who were not his fellow-servants. Illinois Third Vein Coal Co. v. Cioni, 215 Ill. 583.

It is further insisted that appellee was guilty of contributory negligence, (1) in taking the position he did on the hopper car; (2) in failing to see the flat car on the McCarthy track; (3) in failing to hear the warnings given; (4) in examining his orders and failing to anticipate the danger and be on the lookout therefor.

When appellee was directed to take charge of the extra train yards crew as foreman he was ordered to place certain cars then in the train yards on the private switches of certain industries to which they were consigned. These orders were written on pieces of cardboard and informed him where the cars would be found in the yards and to whom consigned. At the same time he was verbally ordered by the yard-master, Connors, to first take five cars of coal to the coal chute to be used by the engines of the transportation department. Appellee proceeded with his engine to the place where he was to get the coal cars, and after he and his crew had done the switching necessary to separate the five coal cars wanted from the others "to which they were attached, his engine hauling said coal cars proceeded slowly south over old track No. 1 towards the McCarthy track. Appellee mounted the last car as it passed him. This was, a steel hopper car with a large open space under each end. Appellee sat underneath the hopper on the sill at the end of the car with his legs hanging down on the outside over the sill, and proceeded to examine the cards containing his orders as to the outside work he was to do immediately after leaving the coal cars at the chute. While thus occupied his train approached the McCarthy track, and when he reached the flat car standing on that track his legs were caught and injured.

There is evidence tending to show that appellee in the work of getting out the coal cars looked south in the direction of the McCarthy track, and that a man by the name of Marhl standing some distance away, also another man, one of his own crew, shouted to him as he approached the McCarthy track. Appellee testified that he at no time saw the position of the flat car on the McCarthy track, nor heard any warnings until he was almost to said car when he tried to throw up his legs, but the car caught them before he could avoid the danger.

The law did not require appellee to ride on any particular car, nor in any particular part of any car. All that he was bound to do was to use such ordinary care for his safety in the performance of his duties as a reasonably prudent person would use under the same circumstances. His position on the car did not unnecessarily expose him to any of the usual, ordinary or known risks or hazards of his employment. He had a right to assume that the shop yards- crew had not negligently left any cars too close to the track over which he .was traveling. It was not negligence per se for him to ride in said position, neither was it for him to fail to see the car, to hear the warnings nor to read his orders. Whether these facts in this particular case constituted negligence on his part which contributed to his injury was a question for the jury to determine by considering them in connection with all the other facts and circumstances shown by the evidence, and we cannot hold that he was guilty of contributory negligence as a matter of law.

The only criticism made to the court’s rulings on the admission of evidence is to the sustaining of objections to six questions propounded to the witness Eyan. All these questions simply called for conclusions of the witness, and his reasons for not warning appellee of his danger. Following these objections appellant made a long offer of proof to which an objection was sustained. By this appellant offered to prove what the witness assumed appellee could see, and what he supposed appellee would do. There was no error in sustaining the objections to said questions or to the offer of proof.

The assignment of error in regard to the instructions is confined to the refusal of the court to give the fifth, sixth, seventh and tenth offered by appellant. The fifth instructs the jury in substance that all the members of the switching crew, of which appellee was foreman, were fellow-servants, and that if the negligence of any member thereof was the proximate cause of the injury, appellee could not recover." The gravamen of the second count of the declaration was the negligence of appellant in employing an incompetent servant as a member of his switching crew. The instruction goes to the whole declaration, and was inapplicable to the second count. The sixth, seventh and tenth all state that appellee cannot recover if his injuries were caused by the negligence of fellow-servants. No instruction was given or offered attempting to define what constitutes the relation of fellow-servants. The definition of fellow-servants is for the court, and it is for the jury to find whether the relation exists within the definition, from the facts proven. Hartley v. Chicago & A. R. Co., supra. These instructions leave it for the jury to determine who, as a matter of law, might be fellow-servants. It is error to give such instructions without defining the meaning of fellow-servants. Chenoweth v. Burr, 242 Ill. 312. The court properly refused them.

The evidence tended to show that the flesh of the left leg was more or less torn from above the knee to the ankle, and that both bones of the right leg were broken below the knee. Several efforts were made to make the bones of the right leg unite by wiring them together, but these operations were unsuccessful. Effort was made to cause them to knit by irritation, with a similar result. Silver plates were then used to attach the broken ends together, and these did not succeed. Finally the leg was amputated five inches below the knee. During these various operations appellee was confined to the hospital from time to time about thirty weeks. The evidence further tends to show that the left leg also became weak, and that at the time of the trial, twenty-two months after the injury, it was necessary to wear braces thereon, and the use of a wheeled chair was the only means by which appellee could get about. He was thirty-five years of age, earning about $100 per month at the time of his injury, and up to the time of the trial had been unable to work. The verdict is large, but the injuries are severe, and we do not think under all the evidence the damages are excessive.

Criticism is made to some of the remarks of counsel for appellee in his argument to the jury. The remarks objected to were improper, but the court promptly sustained an objection thereto and the jury were instructed to disregard them, and counsel disclaimed before the jury any intention of attempting to mislead them thereby, and we do not think they were of such character that, under these circumstances, should cause a reversal of the judgment.

The judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Laura Clark et al., Appellants, v. Fraternal Tribunes and Northern Life Insurance Company of Illinois et al., Appellees.
    Insubance, § 24

      -—when evidence insufficient to show consolidation or conspiracy to defeat insurance claims. On a bill filed by members of a fraternal insurance company against such company and a life insurance company charging a conspiracy on the part of the officers of the two companies to defraud complainants of their insurance claims, evidence held insufficient to show a consolidation of the two companies or to show such fraudulent conspiracy, it appearing that the life insurance company received nothing from the fraternal insurance company except a small increase in policy holders from its members.
    Appeal from the Circuit Court of Sangamon county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed May 5, 1914.
    Rehearing denied June 25, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    George W. Kenney and A. G. Murray, for appellants ; Eugene E. Bone, Kaplan & Kaplan, Alonzo Hoff, Robert Matheny, Graham & Graham, Barber & Barber, Smith & Friedmeyer, Hamilton & Catron, C. F. Mortimer, Bellatti, Barnes & Bellatti, B. O. Sumner, Morphy, Ewing & Bradford, E. L. Chapin, Sampson & Putting, A. C. Edie, Charles Harris, William B. Risse, Wilson & Wall, Mathew J. Huss, A. W. Fulton, R. Wolfner, Safford & Graham, C. I. McNett, Thomas P. Reep, Charles H. Woodburn, Snow & Haight, B. O. Willard and Manley & Kramer, of counsel.
    Gillespie & FitzGerald and Barry & Morrissey, for appellees.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

This appeal seeks to reverse the decree entered in said cause in the court below dismissing the bill of appellants for want of equity. The American Home Circle was a fraternal beneficiary society organized under the laws of this State in 1897 and engaged in fraternal insurance business. The Fraternal Tribunes was also a fraternal beneficiary society organized in the same year under the laws of this State and engaged in fraternal insurance business. In November, 1908, the officers of the Circle sought a consolidation of that association with the Tribunes and furnished a statement to the latter showing that the Circle had assets on hand amounting to practically $19,000, and that its current death losses and other liabilities amounted to about $35,000. On November 19, 1908, a contract was entered into between the Circle and the Tribunes whereby the members of the Circle were reinsured in the Tribunes and the Tribunes assumed the obligations of the Circle. As a matter o'f fact at this time the Circle had no assets and had liabilities of about $125,000. The Tribunes at this time was solvent and had an accumulated surplus in an emergency fund of $57,000. After the merger of the two associations was consummated the old officers of the Tribunes resigned and the officers of the Circle were elected in their places, and certificates of membership in the Tribunes were issued to the members of the Circle. The $57,000 in the emergency fund of the Tribunes was drawn out by the new administration of that association and was fraudulently used in some manner unexplained. In July, 1909, an attempted dissolution of the Circle and Tribunes was made and the then officers of the Tribunes resigned and new officers were elected, and it was found that in addition to the loss of the $57,000 in the emergency fund there was a further shortage in the treasury of the Tribunes of over $12,000. The new officers attempted to collect the said amounts from the retiring officers of the Tribunes and succeeded in collecting $48,500 in cash, took a note for $8,500 from Dr. Craig, the former medical examiner, which proved to be of no value, and had to charge off the sum of $12,136 against the ex-treasurer. All of the appellants, with one exception, are beneficiaries under policies originally issued by the Circle and the total of their claims amounts to about $100,000. Many of these claims accrued prior to the merger of the two associations.

The Tribunes continued in business until about March 21,1910. Suits had been commenced against the Tribunes by the beneficiaries under the certificates issued by the Circle claiming an aggregate amount of over $80,000. In several of these suits judgments had been rendered against the Tribunes. By reason of these conditions and the exhaustion of the funds of the Tribunes it became impossible for the Tribunes to defend the suits so instituted against it, to furnish bonds to appeal from the judgments, or to meet its obligations, or continue in business, and in the opinion of its officers a receivership for the Tribunes was inevitable. An effort was made to provide the living members of the Tribunes with reinsurance, and negotiations were had with the appellee, the Northern Life Insurance Company of Illinois, which is an old line legal reserve insurance company, organized under the laws of this State. The officers of the Tribunes and the Northern Life sought the advice of the insurance superintendent of the State and were informed by him that there would be no objections to the Northern Life insuring the members of the Tribunes as individuals, but that under the laws of this State there could be no consolidation between the two corporations and also that the Northern Life would not be authorized to consolidate with an insolvent corporation and assume its liabilities.

At a meeting of the Supreme Tribunal of the Tribunes the president of the Northern Life, in an oral statement to that body, explained the different forms of policies offered by said Company and that the Northern Life would not require a medical examination of any of the members of the Tribunes if all, or nearly all, would insure in the Northern Life; that he would offer such members rates of insurance from $2 to $4 lower than the average because the Company would not be at the expense of paying commissions and that the members could pay their usual assessment for the month of April, and further stated that he had been advised by the insurance department that in order to protect the Company, if a member would not submit to an examination, it would be necessary ■ to retain a lien upon his policy. The Supreme Tribunal passed a resolution urging the members to accept the proposition of the Northern Life. Following this meeting the Northern Life sent a circular to the members of the Tribunes stating, among other things, as follows:

6. You are not compelled to take a medical examination but if you do not take it, or are not able to pass, your policy will be scaled for the first few years. The amount payable on a $1,000.00 policy, in case yon do not pass the medical examination will be $600.00 the first year, $650.00 the second year, $700.00 the third year, and so on up to $1,000.00. Understand that you can take a medical examination, at our expense, and have insurance for the full $1,000.00 right from the start.
7. The Northern Life offers to insure your entire membership whether" sick or well. But it cannot take care of your sick unless your well people come too. To take the sick without the well is unfair and impossible.
G-et examined at once, at the Company’s expense. If you fail to pass, we will accept you anyway as soon as two-thirds of the members of your Tribunal have accepted our proposition.
Your insurance takes effect as soon as it is approved in the Home Office of the Company, without waiting for the policy to reach you. You can pay monthly, quarterly, semi-annually or annually as you please. It costs you not a penny extra to have The Northern Life issue you this policy and carry your protection for the month of April. After that your rate will be such as is indicated in the table in this folder. * * *
15. If you have paid in advance, send in the card and The Northern will carry your insurance from April 1st to such date as your advance payments will carry you at the new rate.”

At this time a number of members of the Tribunes had made advance payménts on their policies to the amount of about $4,000. To protect these advance payments the Supreme Tribunal transferred to the Northern Life by bill of sale all its personal property consisting of office furniture, etc., of the value of about $1,000, and the Craig note for the nominal consideration of $4,000. The bill of sale provided that the same should apply and be credited on the insurance of those members of the Tribunes who had paid in advance of the month of March. Numerous circulars, postal cards and letters were mailed by the Northern Life and the Supreme Tribunal to the members of the Tribunes explaining the proposition of the Northern Life and urging said members to accept the same. About ten per cent, of the members of the Tribunes accepted policies in the Northern Life, all of whom submitted to and passed a medical examination.

The bill alleges many of the above facts and others, and charges a conspiracy on the part of the officers of the two corporations to defraud appellants of their claims, and that by reason of the facts alleged the Northern Life became liable to appellants for the amounts of their respective claims. The bill does not charge in words that the two corporations became consolidated, but the contentions of appellants are: First, that there was a consolidation by virtue of the statute; second, that if there was not a statutory consolidation there was a consolidation in fact and that the appellee, the Northern Life, having received the benefit of snch consolidation, is estopped from denying the consolidation; and third, if there was neither a statutory consolidation nor one in fact, still all the appellees are liable to appellants on the theory of the commission of a tort by appellees in fraudulently disrupting the Tribunes and thereby depriving appellants of their means of making their claims.

There is no basis for the contention that there was a statutory consolidation. Even if the Northern Life and Tribunes had the power to consolidate under the laws of this State, no attempt whatever was made to comply therewith and it is unnecessary to discuss this phase of the question.

We do not think the proof shows there was a consolidation in fact. No contract was entered into between the two corporations. While the Northern Life offered to issue policies to all the members of the Tribunes it was upon the condition that all, or nearly all, or at least two-thirds of the latter, would apply for policies in that Company. Only a small proportion of the Tribunes’ membership applied for policies in the Northern Life. It is earnestly insisted that the transfer of the personal property above mentioned is strong evidence of such a consolidation. This property, as above stated, was of small value and was given to protect the members of the Tribunes who had made advance payments on their assessments. The Craig note was worthless and the other property did not exceed the value of $1,000. After the bill in this case was filed, appellants, or some of them, filed another bill asking for the appointment of a receiver for the Tribunes and said receiver was appointed and said personal property reconveyed to the Tribunes, and by it turned over to the receiver, so, as a matter of fact, the Northern Life received nothing from the Tribunes except the value of the new business acquired by issuing policies to a small portion of its members. It would be an anomalous situation to hold that there was a consolidation between these two companies while there was a receiver administering the estate of one of them, who had possession of all of its assets.

We are of the opinion that proof is not sufficient to show that there was a fraudulent conspiracy on the part of the Northern Life and the Tribunes to deprive appellants of their claims. The Northern Life has received nothing from the Tribunes except a small increase in policy holders from its members. The proof does not show the loss of these members has to any extent jeopardized the rights of appellants in collecting their claims, and, even if it did, such fact would not be a basis for liability against defendants. Twiss v. Guaranty Life Ass’n, 87 Iowa 733.

The record in this case is very voluminous and we have not attempted to mention all the facts appearing therein, nor to discuss all the points raised in appellants ’ brief and argument, but have commented on only such as appear to be most material and controlling. After a careful consideration of all the evidence and the points raised in regard thereto, we are of opinion that the proofs do not sustain the allegations of the bill and that the decree entered in the court below dismissing the bill for want of equity is proper, and it will therefore be affirmed.

Affirmed.


text:
    Emma Passwaters, Administratrix, Appellee, v. Lake Erie & Western Railroad Company, Appellant.
    (Not to The reported in full.)
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed May 5, 1914.
    Statement of the Case.
    Action by Emma Passwaters, administratrix of the estate of Irma Passwaters, deceased, against the Lake Erie and Western Railroad Company to recover damages for the death of Irma Passwaters, a girl about eight and one-half years of age, who was killed at a highway crossing by one of defendant’s trains, while riding in a buggy with her father, Charles A. Pass-waters. The trial court entered judgment in favor of plaintiff on a verdict of the jury assessing the damages at three thousand three hundred dollars. To reverse the judgment, defendant appeals.
    An action was brought by the administratrix of the estate of the father to recover damages for his death, which occurred in the same accident. There was a verdict and judgment in favor of plaintiff in that case and the judgment was affirmed in the Appellate Court. See Passwaters v. Lake Erie & W. R. Co., 181 Ill. App. 44.
    John E. Pollock and W. B. Leach, for appellant; John B. Cockrum, of counsel.
    Barry & Morrissey and Schneider & Schneider, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Abstract of the Decision.

1. Railroads, § 696 —sufficiency of declaration, in action for death of child in care of father. In an action for the death of a child who was killed at a highway crossing hy one of defendant’s trains while riding in a buggy with her father, failure of the declaration to allege the age of the deceased child, how and with whom she was riding, and that the father was in the exercise of due care, held not to render the declaration insufficient to sustain a verdict on account of variance between its allegations and the proof, since the child’s age, how and with whom she was riding are simply evidentiary facts which need not he pleaded, and any negligence of the father which might he imputed to the child was sufficiently negatived by the averment of due care and caution on her part, as such averment would also necessarily imply due care and caution on the part of the father.

2. Negligence, § 250*—when giving of instruction requiring due care only on the part of child’s father harmless. In an action for the death of a child while in care of its father, where the case was tried on defendant’s theory of the law that the father was negligent and that his negligence was imputed to the child, the giving of a modified instruction requiring the exercise of due care on the part of the father and not requiring due care on the part of the deceased child, held harmless where all the evidence showed that the child was in the exercise of due care.

3. Appeal and error, § 1241*—when adversary’s instructions cannot he complained of. Appellant cannot complain that the court modified appellee’s instructions to conform to the theory of the law as presented by his own instructions.

4. Appeal and error, § 1238*—when appellant cannot complain of court’s adoption of his theory of case. Where appellant has induced the court to adopt a theory of the law most favorable to himself, he cannot on appeal insist that the court should have adopted some other theory.


text:
    Home State Bank of Lexington et al., Defendants in Error, v. James W. Vandolah et al., Plaintiffs in Error.
    1. Pabtnebship, § 80

      —interest of partner in firm property. The interest of partners in partnership property is not that of tenants in common, nor of joint tenancy, but is sui generis and peculiar to itself. Bach partner has a joint interest in the whole, hut not a separate interest in any particular part of the property.
    2 Pabtnebship, § 86*—right of partner to transfer his interest. A partner cannot transfer an undivided interest in any specific articles belonging to the firm; he may assign its interest in a partnership to a third person, but such person does not thereby become a partner in the firm without the consent of the other partners.
    3. Pabtnebship, § 201*—effect of assignment of partner’s interest. An assignment by a partner of his interest in the firm to a third person, either by voluntary act or legal process; simply entitles such person to receive such partner’s share of what may remain after a settlement of the partnership affairs and the payment of all debts. He takes nothing but a chose in action and the right to an accounting and simply becomes subrogated to the rights of the partner in the winding up and settlement of the partnership estate.
    4. Banks and banking, § 68*—powers of State hank. Laws of this State do not permit State banks to buy interests in partnership firms and become partners thereof, nor to indulge in the commercial business of an electric light company.
    5. Pledges, § 28*—when pledge of partner’s interest in firm gives lien prior to rights of judgment creditors. Where a partner prior to the entry of judgments against him executed to a bank for a valuable consideration a hill of sale of his interest in the firm as collateral security for an indebtedness, the bank has a lien on such partner’s interest paramount to the rights of the judgment creditors, whether they had notice of such pledge or not.
    6. Pabtnebship, § 425*-—when improper finding in decree harmless. Where a decree on a bill filed to settle and wind up a partnership contained a finding that a creditor of one of the partners was entitled to the whole of such partner’s distributive share on the theory that there had been an absolute sale of his interest to the creditor, held such finding was harmless where the value of the partner’s distributive share was insufficient to pay the creditor.

      Error to the Circuit Court of McLean county; the Hon. CoLosim D. Myebs, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 5, 1914.
    Shelton L. Smith and Welty, Sterling & Whit-more, for plaintiffs in error.
    Barry & Morrissey, for defendants in error.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

This cause is based upon a bill in equity filed by defendants in error to settle and wind up a partnership, doing business under the firm name of Lexington Electric Light Company. The bill, in substance, avers that for some time prior to February 16, 1910, the partners in said firm were Charles P. Scrogin, Ella E. Vandolah and Emily S. Vandolah; that James W. Vandolah, husband of Ella E. Vandolah, was indebted to said Bank for more than five thousand dollars, and complainants were demanding payment or security for same, and thereupon said Ella E. Vandolah executed a bill of sale of her interest in said firm as security for said notes; that said Charles P. Scrogin on and prior to said date was also indebteded to said Bank for more than five thousand dollars; that complainants were demanding payment or security for the same, and that thereupon said Charles P. Scrogin delivered to said Bank a note of Daisy F. Scrogin for five thousand dollars, together with a bill of sale for his interest in said Company in satisfaction of said indebtedness; that after the execution and delivery of said bills of sale complainants informed Emily S. Vandolah that they held such bills of sale and agreed with her thát the business of the firm might be continued until further arrangements; that prior to the execution and delivery of said bills of sale the business of said firm was in charge of James W. Vandolah as manager, that when said hills of sale were executed and delivered, complainants and said Emily S. Vandolah agreed to retain James W. Vandolah as manager; and he then agreed to act in such capacity and to furnish them monthly statements, etc.; that on August 3, 1910, Emily S. Vandolah died, leaving a last will and testament which was duly admitted to probate, and B. A. Franklin was appointed and qualified as administrator with the will annexed and is acting as such; that since the death of said Emily S. Vandolah said James W. Vandolah has continued to manage said business and that no steps have been taken to settle said partnership ; that on December 22, 1910, the sheriff made a levy of certain executions then in his hands in favor of certain judgment creditors of Charles P. Scrogin upon a supposed undivided interest of said Charles P. Scrogin in the property of said Company, and now claims said executions are a lien upon the former interest of said Charles P. Scrogin in said firm, and claims to have taken possession of all the property of said firm and is about to sell the same; that said execution creditors were fully advised before the executions were delivered to the sheriff of complainant’s rights under said bill of sale; that said Ella E. Vandolah is claiming that said bill of sale executed by her is of no force and effect; that the rights of complainants under said bill of sale from Charles P. Scrogin took precedence over said executions; that by reason of the death of Emily S. Vandolah the firm was dissolved by operation of law, wherefore complainants are entitled to the winding up of the business of said Lexington Electric Light Company and to have its assets turned into cash and distributed among the parties entitled thereto.

All the persons interested were made parties defendant except said Charles P. Scrogin. A temporary injunction was issued restraining the sheriff from making any sale of said property. All the defendants joined in the same answer. The answer admits the partnership as alleged and that James W. Vandolah was indebted to the Bank in the sum of five thousand dollars on said date; but states said indebtedness has since been paid; avers that said bill of sale executed by said Ella E. Vandolah was made in consideration that said indebtedness of said James W. Vandolah would be turned over to her and the notes representing the same delivered to her, and said Bank did not turn over or deliver up said notes to her and refused to do so; denies that Charles P. Scrogin gave to said Bank a note of Daisy F. Scrogin for the sum of five thousand dollars together with said bill of sale, in satisfaction of his indebtedness to said Bank; denies that complainants informed Emily S. Vandolah that they held such bills of sale and that they agreed with her that the business might be continued until further arrangements were made; denies that said Emily S. Vandolah agreed with complainants to retain James W. Vandolah as manager of said business; denies that said judgment creditors had knowledge of complainants’ rights under the aforesaid bill of sale; denies complainants took possession of said interest of said Charles P. Scrogin in said Electric Light Company; admits said Ella E. Vandolah is claiming that said bill of sale executed by her is without force.

The cause was referred to a special master, who found that by virtue of the bill of sale from Charles P. Scrogin to the Bank the latter obtained a prior lien over the judgment creditors on the interest of said Scrogin in said partnership business. He also found that James W. Vandola' , husband of Ella E. Vandolah, owed the Bank on bbruary 16, 1910, five thousand dollars, evidenced / a promissory note; that an arrangement was en red into between said Bank and said Ella E. Vandolah, through said James W. Vandolah as her agent, under which said Bank agreed to deliver said note to said Ella E. Vandolah in satisfaction of her turning over to it by said bill of sale her interest in said partnership; that she executed such bill of sale and delivered it to the Bank, but that the Bank never delivered to her the note in question, and therefore the consideration in the bill of sale of Ella E. Vandolah wholly failed. These findings were approved by the chancellor, and a decree entered appointing a receiver and ordering the property of the partnership to be sold, and after the payment of the debts should be divided equally between the said Bank of Lexington, B. A. Franklin, administrator of the estate of Emily S. Vandolah, and Ella E. Vandolah, and that the injunction prayed for against James Beeder, sheriff, should be made perpetual. The property sold for eight thousand dollars. Plaintiffs in error assign error to that part of the decree finding that the Bank took the interest of Charles P. Scrogin in the partnership business and in making the injunction perpetual against the sheriff and the judgment creditors. Defendants in error assign cross-errors to that part of the decree finding that there was no consideration for the bill of sale executed by Ella E. Vandolah and that the Bank did not acquire her interest in said partnership firm by virtue thereof.

It is the contention of plaintiffs in error that the bill of sale by Charles P. Scrogin attempted to convey the personal property without reducing the same to possession, and of which the judgment creditors had no notice and was therefore void as to them, and it appears to be the contention of defendants in error that said bill of sale conveyed an absolute one-third interest in rem in said partnership property. Neither of these contentions is correct. The principles of law involved in this controversy are so well established that an extended discussion of the same is unnecessary. Neither of these bills of sale are made to the Bank as grantee, they are each made to “A. J. Scrogin, President of Home State Bank.” The words “President of Home State Bank” are simply descriptio personal but as the answers admit that said bills of sale were in fact made to said Bank and as on the hearing in the court below and in this court the parties have proceeded on that theory, this court will adopt that construction which the parties themselves have assumed.

The interest that partners have in a partnership property is not that of tenants in common, nor of joint tenancy, but is sui generis and peculiar to itself. Bach partner has a joint interest in the whole, but not a separate interest in any particular part of the property. A partner cannot transfer an undivided interest in any specific article belonging to the firm. A partner may assign his interest in a partnership to a third person, but such person does not thereby, without the consent of the other partners, become a partner in the firm. Such a transfer of a partner’s interest, either by voluntary act or legal process, simply entitles such person to receive such partner’s share of what may remain after a settlement of the partnership affairs and the payment of all partnership debts. He takes nothing but a chose in action and the right to an accounting. He simply becomes subrogated to the rights of said partner in the winding up and settlement of the partnership estate. Morrison v. Austin State Bank, 213 Ill. 472; Sindelare v. Walker, 137 Ill. 43; Trowbridge v. Gross, 117 Ill. 109; Tafe v. Schwamb, 80 Ill. 289; Carter v. Bradley, 58 Ill. 101. The possession- of partnership property by one partner is the possession for all. Brown v. Graham, 24 Ill. 628. A bill of sale of a partner’s interest in a partnership being but a chose in action, possession of the property is presumed to have been delivered by the delivery of said bill of sale. Rice v. Gilbert, 173 Ill. 348. Under both the law and the facts in this case the bill of sale of said Scrogin was merely an assignment of his interest as a partner in said partnership to the Bank as collateral security for the payment of his notes and was a pledge of his interest in the partnership for that purpose, and while in this particular case the ultimate result, so far as the beneficial interests of the parties to this controversy are concerned, might not be effected by holding this transaction to be a pledge as collateral security rather than an actual sale of his interest in the partnership property, yet such was its end and effect. This bill of sale was taken by the Bank and placed with the notes evidencing the indebtedness. These evidences of indebtedness were not delivered or surrendered to the grantor, but were retained and have been retained by the Bank, and the bill makes no offer to surrender and cancel them. Moreover, the laws of this State did not permit State banks to buy interests in partnership firms and become partners thereof, nor to indulge in the commercial business of an electric light company. x""

But this bill of sale being a pledge of said Scrogin’s interest in said partnership firm as collateral security for his indebtedness, and having been executed for a valuable consideration and prior to the entry of the judgments in question, the Bank obtained a lien on said partnership interest paramount to the rights of the other creditors, whether they had notice of such pledge or not. Cooper v. Ray, 47 Ill. 53; 22 A. & E. Encyc. Law, 867. If the value of the partnership property had been more than sufficient to have satisfied Scrogin’s indebtedness out of his share, then the balance would have been subject to the claims of his other creditors and the decree would have been erroneous, as it finds that the Bank was entitled to the whole of Scrogin 5s distributive share on the theory that there was an absolute sale of his interest to the Bank, but as the partnership property sold for only eight thousand dollars, it is manifest that one-third of this would not satisfy his indebtedness to the Bank. Therefore no harm is done to the judgment creditors by the decree in this respect.

As to the bill of sale executed by Ella E. Yandolah to the Bank, the special master found, and the court approved his finding, that the consideration therefor failed and the Bank took no interest in the partnership property by virtue thereof. There was evidence tending to support this finding, and as it is not manifestly against the weight of the evidence, we are not disposed to disturb it.

The decree of the Circuit Court, therefore, is substantially correct and will be affirmed.

Affirmed.