text:
    Peter Fromm, Appellee, v. New Staunton Coal Company, Appellant.
    1. Appeal and ebbob, § 1712* — when assignments of error deemed toaived. Assignments of error may be considered as waived, if not argued.
    2. Workmen’s Compensation Act, § 2* — what is effect of rejection of by employer. An employer who elects not to accept the provisions of the Workmen’s Compensation Act forfeits his right to interpose the common-law defense of assumed risk.
    3. Workmen’s Compensation Act, § 12* — when instruction on assumption of risk is properly refused. In an action against an employer, who had elected not to accept the Workmen’s Compensation Act, to recover for injuries to an employee received by the falling of the roof in defendant’s mine, it is not error to refuse to give instructions which, in substance, advise the jury that if plaintiff knew of the dangerous condition of the roof he could not recover.
    4. Master and servant, § 537* — what declaration in action for personal injuries should state as to duty of master. In an action to recover for personal injuries to an employee, it is not necessary or even sufficient for the declaration to allege that it was defendant’s duty to do certain things, but it must state a condition of things from which the law will raise the duty.
    5. Master and servant, § 123* — what is duty as to providing safe place to work. It is the duty of an employer to use reasonable care to provide his employees a reasonably safe place in which to work.
    6. Mines and minerals, § 141

       — when declaration sufficiently alleges facts from which duty to use reasonable care to furnish safe place to work will arise. In an action by an employee to recover for personal injuries received through the fall of the roof of a mine room in which he was working, a count in the declaration which alleges defendant’s ownership and operation in the mine, plaintiff’s employment as defendant’s employee in the room of the mine, that the roof of the room was in a dangerous condition, that defendant knew or, by the exercise of ordinary diligence, could have known of such condition, and that it knew that plaintiff was employed in such room, shows facts from which the law will impose upon defendant the duty to use reasonable care to furnish plaintiff a safe place to work, and further allegations that it was defendant’s duty to notify plaintiff of the dangerous condition of the roof and that it did not perform such duty may be disregarded as surplusage.
    7. Pleading, § 441

       — what averments of declaration must be proven. Plaintiff is required to prove only such of the material averments of his declaration as are sufficient to make a case.
    8. Masteb and sebvant, § 537* — what must be averred in action by employee for personal injuries. In an action by an employee to recover for personal injuries, it is necessary to aver three elements to state a cause of action: (1) The existence of a state of facts from which the law will raise a duty on defendant’s part to protect plaintiff; (2) defendant’s failure to perform such duty; (3) an injury to plaintiff resulting from the failure.
    9. Masteb and sebvant, § 538* — when declaration states cause of action for failure to furnish safe place to work. In an action by an employee to. recover for personal injuries, where the material facts alleged in the declaration show the existence of a duty on defendant’s part to use reasonable care to furnish plaintiff a safe place to work, defendant’s failure to do so and a resultant injury to plaintiff, a cause of action is stated, even though the statement of the facts is defective.
    10. Limitation oe actions, § 58* — when subsequent amendments to declaration not barred. If an original declaration is filed in apt time stating a cause of action, even though defectively or imperfectly, subsequent amendments, though filed after the statute of limitations has run, will not be barred thereby if they amount to no more than a restatement, in a different or better form, of the cause of action originally declared upon.
    11. Mines and minebals, § 185* — when peremptory instruction for defendant in action for personal injuries to miner through fall of roof in mine is properly refused. In an action by an employee to recover for personal injuries received through the falling of the roof of a room in the mine, where the only negligence charged and the only question for the jury is that defendant permitted plaintiff to work under a dangerous roof and defendant offers no evidence, while plaintiff and two others testify to the dangerous condition of the roof for one or two days before it fell and another witness as to its condition at and qfter the accident, it is not error to refuse a peremptory instruction for defendant.
    Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.

      William E. Wheeler, for appellant.
    Harold J. Bandy, 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 Higbee

delivered the opinion of the court.

Appellee filed suit against appellant in the Circuit Court of Madison county, to recover damages for personal injuries sustained by him on November 18, 1914, while working for appellant in its coal mine at Livingston, Illinois.

The original declaration consisting of two counts was filed September 16, 1916. The first count was based upon the Mining Act. The second count averred common-law negligence, and whether this count stated a cause of action is one of the questions presented for consideration. After averring the ownership and operation of the mine by appellant and the division of the mine into various rooms and entries, among which was a room known as room No. 46,' this count alleges that “on November 18, 1914, he (plaintiff) was engaged as a servant of the defendant in loading coal in said room No. 46 of defendant’s said coal mine”; that on said date “the roof of said room No. 46 of defendant’s said coal mine, in which said room plaintiff was loading coal as aforesaid, was in a dangerous condition, in that the coal in said roof was loose and likely to fall and injure persons working in said room No. 46; that defendant on said November 18, 1914, knew that the coal in the roof of said room No. 46 was loose and likely to fall and injure persons working in said room No. 46, or could have known of the same by the exercise of ordinary diligence; that the defendant also knew that plaintiff, as said servant of the defendant, was engaged on said November 18, 1914, as such servant of the defendant in loading coal in said room No. 46”; that “it therefore became and was the duty of defendant, on said November 18, 1914, to notify plaintiff that the coal in said roof of room No. 46 was loose and likely to fall and injure persons working in said room No. 46. But the defendant did not regard its duty in that behalf on said November 18, 1914, but did, on the contrary, negligently and carelessly permit plaintiff to load coal in said room No. 46, after knowledge on the part of defendant of said dangerous condition, without notifying plaintiff of the existence of said loose coal in said roof, by reason of which negligence, on the part of defendant, in failing to notify plaintiff of said dangerous condition, the plaintiff was struck by a piece of coal which fell from said roof of room No. 46, on said November 18, 1914,” and that plaintiff was thereby greatly injured. The. count further alleges that defendant had elected to operate under the Workmen’s Compensation Act. A general demurrer was sustained to both counts of this declaration. On February 16, 1917, appellee filed an amended declaration of eight counts. A demurrer was sustained to the first seven counts of.this declaration. The eighth count was afterwards abandoned and a second amended declaration consisting of five counts was filed March 28, 1917, more than two years after the date of the injury. A plea of the statute of limitations was filed to the first, second, third and fifth counts of this declaration. Appellee demurred to such pleas and the court overruled the' demurrer. Appellee elected to abide by his demurrer and judgment was rendered in bar of the action as to the first, second, third and fifth counts. Appellant’s demurrer to the fourth count of this second amended declaration was overruled and it thereafter filed as to such fourth count a plea of the general issue and a special plea of the statute of limitations. Appellee demurred to such special plea and the demurrer was sustained. Appellant elected to abide by such plea and the case was tried solely upon the fourth count of the second amended declaration, the material allegations of which are: “On November 18, 1914, defendant owned and operated a coal mine in Livingston, Illinois, which was divided into various rooms and entries, among which was room No. 46; that on and prior to November 18, 1914, plaintiff was a servant of the defendant, working in said mine as a loader, and on said day was engaged in loading coal in room No. 46 of said mine; that on said date the roof in said room No. 46 of defendant’s said coal mine, in which said room plaintiff was loading coal as aforesaid, was in a dangerous condition, in that the coal in said roof was loose and likely to fall and injure persons working therein; that defendant, on said November 18, 1914, knew that the coal in the roof of said room No. 46 was loose and likely to fall and injure persons working in said room, or could have known of the same by the exercise of ordinary diligence, but that defendant, although knowing of the dangerous condition of said roof, or although it could have known of the same by the exercise of ordinary care, negligently permitted plaintiff to load coal in said room No. 46, under said dangerous roof, whereby plaintiff was struck by a piece of coal which fell from said roof of said room.”

Plaintiff then avers injury to his person, the expenditure of money in endeavoring to be cured, the rejection of the Compensation Act by defendant, and lays his damages at $15,000. Appellant offered no evidence and the case was submitted to the jury solely upon evidence in behalf of appellee. The jury returned a verdict for appellee for $2,000, upon which verdict judgment was entered. At the close of the evidence, appellant requested a peremptory instruction, directing the jury to return a verdict in its favor, which the court refused to give.

The proofs showed that at the time of the injury appellant, who was an experienced miner, some 44 years of age, was engaged in driving a crosscut between rooms 45 and 46 off of an entry in appellant’s mine; that the coal had been shot down three days before said date and that the roof of his working place had been loose during said time and was growing worse; that the entry was being driven from room 46 towards room 45 and that the pillar or wall of coal separating appellant’s working place from room 45 had become so thin that it could not hold up the roof; that while appellee and his buddy were engaged in loading coal some three or four feet from the face of the crosscut at about 3 o’clock p. m. on November 18, 1914, appellee was injured by a fall of slate from the roof.

Counsel for appellant has argued and cited authorities in support of only three of the seven errors assigned, and as assignments of error on appeal may be considered waived if not argued (Coyle v. Castle, 201 Ill. App. 1), we will discuss only the three assignments so argued. The first assignment of error argued by counsel is the court’s refusal to give the three following instructions for appellant: “You are further instructed that the company had the right to have the coal in question cleaned up and loaded in cars, and it is not guilty of permitting Fromm to do said work, although the place was dangerous, if you find that Fromm- was a skilled and competent miner and had knowledge of the condition of the roof and the dangers, if any, of working thereunder.

“The court instructs the jury that if you find from the evidence that Peter Fromm was an experienced miner and that he knew of the condition of the roof in question, and was mentally able to and did understand the danger of working in said place, then the defendant was not guilty of the negligence charged to it in the declaration, and you should find the defendant not guilty.

“You are further instructed that if you find from the evidence that Fromm was a skilled and competent miner; that at the time of the accident and for several hours before such time he had full knowledge of the condition of the roof and of the danger of working thereunder; that it was necessary to open the crosscut in question for the purpose of supplying air to the workings of the mine; that in order to open said crosscut- it was necessary for Fromm to load the coal he was loading at the time of the accident; that by reason of the closeness of the slate in question to the face of the crosscut it was impossible to prop or secure said slate, and that while Fromm was engaged in his said work said slate fell, causing the injury in question, then the defendant was not guilty of the negligence charged in the declaration, and you should find the defendant not guilty.”

These instructions, in substance, advised the jury that if appellee knew of the dangerous condition of the roof he could not recover, and by them appellant was given the benefit of the doctrine of assumed risk as a defense in this case. The declaration averred, and it was expressly stipulated on the trial, that appellant had elected not to accept the provisions of the Workmen’s Compensation Act. Having elected not to accept the provisions of that act, appellant forfeited its right to interpose the common-law defense of assumed risk. Deibeikis v. Link-Belt Co., 261 Ill. 454 [5 N. C. C. A. 401]; Crooks v. Tazewell Coal Co., 263 Ill. 343 [5 N. C. C. A. 410]; Vaughan’s Seed Store v. Simonini, 275 Ill. 477 [14 N. C. C. A. 1075]; Bednar v. Mt. Olive & S. Coal Co., 197 Ill. App. 251. Under the authorities cited the instructions were improper and it was not error to refuse them.

The next assignment of error discussed by counsel is that the demurrer to the special plea of the statute of limitations was improperly sustained. This raises a question as to whether the fourth count of the second amended declaration, being the one count upon which the case was tried and which was filed more than two years after the date of the injury, states a cause of action different from that stated in the original declaration. The case is argued by counsel for both parties upon the theory that the cause of action set out in the fourth count of the second amended declaration, which for brevity will hereinafter be referred to as the fourth count, more nearly corresponds to the cause of action set out in the second count of the original declaration, hereinafter mentioned as the second count, than to that contained in any other count filed within two years after the injury. It appears to be conceded by appellant that if count two stated a cause of action, the fourth count, as insisted by appellee, is simply a restatement in proper form of the same cause of action stated in count two, and the demurrer was properly sustained. Counsel for appellant insists that the second count did not state any cause of action, in that it contained no averment showing any duty on the part of appellant to notify appellee of the existence of the loose roof, or that the dangerous condition consisted of a concealed defect, or that appellee was of immature years and could not appreciate the existing danger or that appellee did not have knowledge of the dangerous condition. It is further insisted that as the only negligence charged in the second count was that appellant “Negligently permitted plaintiff to load coal in said- room No. 46, after knowledge on the part of the defendant of said dangerous condition,” that said count should have showed a duty on the part of the defendant in such regard, which it failed to do. It is true that it was necessary that the count show some duty on the part of appellant to appellee. It was not necessary, however, nor even sufficient for the count to allege simply that it was the duty of appellant to do certain things, but it must state a condition of facts from which the law would raise the duty. (Mackey v. Northern Milling Co., 210 Ill. 115.) In the case of Bahr v. National Safe Deposit Co., 234 Ill. 101, the Supreme Court states the rule as follows: “It is not sufficient in the declaration to allege that it is the duty of the defendant to do certain things, as that would he hut the averment of a conclusion, but the declaration must state facts from which the law will raise the duty. ’ ’ Citing Ayers v. City of Chicago, Ill Ill. 406; Chicago & A. R. Co. v. Clausen, 173 Ill. 100; Schueler v. Mueller, 193 Ill. 402.

It is the duty of an employer to use reasonable care to provide an employee a reasonably safe place in which to work (John S. Metcalf Co. v. Mystedt, 203 Ill. 333; Hess v. Rosenthal, 160 Ill. 621). Count two alleges the ownership and operation of the mine by appellant; that appellee was employed and engaged as a servant of appellant in loading coal in room No. 46 of the mine; that the roof of said room was in a dangerous condition; that appellant knew or by the exercise of ordinary diligence could have known of this condition, and also knew appellee, as such servant, was engaged in loading coal in this room. These allegations showed facts from which the law would undoubtedly impose upon appellant the duty to use reasonable care to furnish appellee a safe place in which to work. The further allegations of count two, that it was the duty of appellant to notify appellee of the dangerous condition of the roof, and that it did not regard its duty in that behalf but negligently and carelessly permitted appellee to load coal in that room, may be treated as surplusage which appellee was not required to prove. A plaintiff is only required to prove such of the material averments of his declaration as are sufficient to make a case (Chicago West Division Ry. Co. v. Mills, 105 Ill. 63; Louisville, N. A. & C. Ry. Co. v. Shires, 108 Ill. 617). In cases of this character it is necessary to aver three elements to state a cause of action: (1) The existence of a state of facts from which the law will raise a duty on the part of defendant to protect plaintiff; (2) the failure of defendant to perforin that duty; and (3) an injury to the plaintiff resulting from such failure. After rejecting the surplusage in count two, all these elements are found therein though defectively stated. The material facts alleged in count two show the existence of a duty on the part of appellant to use reasonable care to furnish appellee a safe place in which to work, the failure to perform it and an injury to appellee in consequence of such failure, though it was a defective statement of such facts. The fourth count is a statement of the same condition of facts, but without any surplusage and in a better form. It is the well-settled doctrine of this State that if an original declaratidn is filed in apt time stating a cause of action, though imperfectly or defectively, subsequent amendments, though filed after the statute of limitations has run, will not be barred thereby if they amount to no more than a restatement, in a different or better form, of the cause of action originally declared upon. (George B. Swift Co. v. Gaylord, 229 Ill. 330; St. Louis Merchants’ Bridge Terminal Ry. Ass’n v. Schultz, 226 Ill. 409; Mclnerney v. Western Packing & Provision Co., 249 Ill. 240; Vogrin v. American Steel & Wire Co., 263 Ill. 474.)

The third and last assignment of error argued by counsel is that the peremptory instruction should have been given. The only negligence charged in the fourth count was that appellant negligently permitted appellee to work under a dangerous roof. This was the only question of fact to be determined by the jury. No evidence was offered by appellant. Appellee and two witnesses testified to the dangerous condition of the roof for one or two days prior to the accident and another witness testified to its condition at and after the accident. This evidence warranted the verdict on the question of negligence and it was no+ error v_ refuse the peremptory instruction. W<7 nna no sudstantial error in this record and the judgment of the trial court will be affirmed.

'Affirmed.


source: Caselaw Access Project

author: Mr. Justice Higbee

license: Public Domain

text:
    Charles Pauly and Edward C. Pauly, Appellees, v. County of Madison, Appellant.
    (Not to he reported in full.)
    Abstract of the Decision.
    Master and servant, § 75

       — when recovery for services on common counts proper. Where full performance of a contract of employment is prevented by one of the parties, the other may recover under the common counts for services rendered, even though in one of the counts of his declaration, he declares upon a special contract.
    Appeal from the Circuit Court of Madison county; the Hon. Louis Bebnbeuteb, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    Statement of the Case.
    Action by Charles Pauly and Edward C. Pauly, plaintiffs, against County of Madison, defendant, to recover for services rendered as architects in the preparation of plans and specifications for a courthouse. From a judgment for plaintiffs for $5,062.50, defendant appeals. The facts involved are stated in the abstract of the opinion on a former appeal, reported in 199 Ill. App. 225, which decision also disposes of the questions raised on this appeal.
    J. F. Eeck, for appellant.
    D. H. Mudge, for appellees.

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

   Mr. Justice Higbee

delivered the opinion of the court.


text:
    Marshal White, by W. E. Knowles, Appellee, v. East St. Louis Railway Company et al., Appellants.
    1. Workmen’s Compensation Act, § 12

       — when general demurrer to special plea in action for personal injuries is improperly sustained. In an action by an employee of an electrical contractor against a railway company to recover for injuries received through colliding with defendant’s car as plaintiff was driving his employer’s wagon back to the latter’s shop after making a delivery for him, it is error to sustain a general demurrer to a special plea setting up, in substance, that both defendant and plaintiff’s employer had, prior to the injury, elected to accept the provisions of the Workmen’s Compensation Act of 1918 [Callaghan’s 1916 St. Supp. If 5475(1) et seg.], that plaintiff’s injuries were accidental and arose out of and in the course of his employment and not through the negligence of his employer or coemployees but under circumstances creating a legal liability for damages in defendant, and that by virtue of the act the right of plaintiff to maintain an action has been subrogated to his employer.
    2. Workmen’s Compensation Act, § 11* — what constitutes accident arising out of and in course of employment of driver of wagon. An employee of one conducting a business falling within the Workmen’s Compensátion Act of 1913 [Callaghan’s 1916 St. Supp. If 5475(1) et seg.], is injured by an accident arising out of and in the course of his employment, where the injury was received as he was driving his employer’s wagon back to the place of employment after making a delivery for the employer.
    3. Workmen’s Compensation Act, § 11*- — when employee protected by. The Workmen’s Compensation Act of 1913 [Callaghan’s 1916 St. Supp. jf 5475(1) et seg.] applies to injuries received by the employee of an electrical contractor even though, at the time they were received, the employee was not actually doing electrical work, but was driving the employer’s wagon back to his shop after making a delivery for him.
    4. Appeal and error, § 1097* — when appellee allowed to file brief nunc pro tunc. The Appellate Court will, in its discretion, grant the motion of an appellee who has failed to file his brief in time to be allowed to file it nunc pro tunc.

    Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 5, 1918.
    Barthel, Farmer & Klingel, for appellants.
    T. M. Webb, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.

This was a suit instituted by appellee, Marshal White, a minor, by W. E. Knowles, his next friend, against East St. Louis Railway Company, St. Louis & East St. Louis Electric Railway Company and the East St. Louis & Suburban Railway Company, to recover damages for personal injuries sustained on the 18th day of March, 1914. The East St. Louis & Suburban Railway Company was dismissed out of the suit during the trial.

Appellee was employed by H. C. Windt, an electrical contractor doing business in East St. Louis under the name of the Acme Electric Company. On the occasion in question, he had gone to St. Louis in a one-horse wagon to make a delivery for his employer and was returning by way of the Eads bridge. There are two street railway tracks on this bridge, one on the north side and one on the south and between them is a space reserved for vehicle traffic. It seems that at the time in question eastbound traffic used the north side of the bridge and westbound the south. Appellee was nearing the Illinois end of the bridge when an eastbound car overtook him. The rear step of the car struck the wagon, throwing appellee out and under a transfer wagon going west. The rear wheel of this transfer wagon ran over appellee’s left leg, below the knee, breaking it. Appellants claim, appellee failed to turn far enough away from the track to permit the car step to pass the wagon. Appellee claimed he could turn no further away on account of the heavy transfer wagon approaching from the east.

There were two counts in the declaration. Appellants pleaded the general issue and a special plea subsequently amended, based upon sections 6 and 29 of the Workmen’s Compensation Act of 1913 [Callaghan’s 1916 St. Supp. 5475(6), (29)]. The allegations of the amended special plea so far as material here were “for a further plea in this behalf filed by leave of court first had and obtained, defendants say that the plaintiff ought not to have his aforesaid action against them, the defendants, or either of them, because they say that on and prior to the date when the plaintiff received his injuries, as. alleged in the plaintiff’s declaration and each count thereof, to wit, on the 18th day of March, A. D. 1914, H. C. Windt, who was then and there doing business in the name of the Acme Electric Company, was then and there engaged in the business of doing electrical work in the State of Illinois, and the said H. C. Windt, on and prior to the date when the plaintiff received his injuries described in his said declaration, as aforesaid, had elected to provide and pay compensation for accidental injuries sustained by his employees, arising out of and in the course of their employment, according to the provisions of the statute of the State of Illinois then in force, entitled, ‘An Act to promote the general welfare of the People of this State, by providing compensation for accidental injuries or death suffered in the course of employment within this State’; providing for the enforcement and administering thereof, and a penalty for its violation, and repealing an Act entitled ‘An Act to promote the general welfare of the People of this State, by providing compensation for accidental injuries or death suffered in the course of employment,’ approved June 10, 1911, in force May 1, 1912; that the plaintiff was then and there an employee of the said H. 0. Windt, doing business as the Acme Electric Company, and was engaged in the service of said H. O. Windt in and about his said business of doing electrical work, and was not then and there an employee or engaged in the service of these defendants, or either of them; that the injuries sustained by the plaintiff, as alleged in his said declaration, were accidental injuries, and then and there arose out of and in the course of his employment with said H. C. Windt, doing business as the Acme Electric Company; that the plaintiff’s said injuries were not proximately caused by the negligence of his employer, the said-H. C. Windt, or by the employees of said H. C. Windt, or any of them, and said injuries were caused under circumstances which create a legal liability for damages in these defendants; and these defendants further aver that they and each of them on and prior to the time when the plaintiff received his injuries, as alleged in his said declaration, to wit, on March 18, 1914, were corporations engaged in the business of carriage by land, and loading and unloading in connection therewith, in the State of Illinois, and that they and each of them on, to wit, the 18th day of March, 1914, and prior thereto, had also elected to be bound by the terms and provisions of the act aforesaid.

“Wherefore, these defendants, and each of them, say that by virtue of said statute, the right of the plaintiff to maintain his aforesaid action against these defendants and each of them has been subrogated to said H. C. Windt, and the plaintiff has no right of action in this behalf, and this these defendants, and each of them, is ready to verify; wherefore, they and each of them pray judgment whether the plaintiff ought to maintain his aforesaid action against them or either of them,” etc. A general demurrer to this plea was sustained and appellants elected to abide by their plea. The case was tried upon the declaration and the general issue, and a verdict returned for appellee for $1,750. This appeal is prosecuted to reverse the judgment rendered on that verdict.

The first question which confronts us upon an examination of this record is whether the court below properly sustained the general demurrer to appellants’ amended special plea. It is the contention of appellee that it was necessary for appellants, in order to avail themselves of the provisions of the Workmen’s Compensation Act, to state in their plea facts with regard to appellee’s occupation and the electrical work which constituted the extrahazardous business in which his employer was engaged, from which it would appear that appellee was, at the time of his injury, engaged in the carrying on óf the electrical work of his employer and not in some other work which, though connected with the employer’s business, was not its electrical work and not extrahazardous; that the ultimate fact which should have been pleaded was not the employment but the character of the employment in its relation to the extrahazardous enterprise. The doctrine contended for by appellee, while it includes in the main a correct theory of the law, appears to us to be carried somewhat to an extreme, not altogether justified by the decisions of our Supreme Court upon which he relies. In the case of Gibson v. Industrial Board of Illinois, 276 Ill. 73, relied upon by appellee, the employee for whose death damages were sought to be recovered, was engaged in delivering gasoline, an extrahazardous occupation within the meaning of the Workmen’s Compensation Act, and while returning with an empty gasoline wagon, after making a delivery, fell from his seat in attempting to raise a canopy top on the wagon and was killed. The court, in determining whether the deceased’s work was such as to bring him within the act, said: ‘1 Plaintiffs in error were engaged in a business that was extrahazardous under the act, and the deceased was working for them as a driver of one of their wagons. Such work was necessary in carrying on the principal business of the plaintiffs in error. We think the occupation of the deceased was sufficiently connected with the extrahazardous business of the plaintiffs in error, and such business being under the act, his widow was entitled to recover under its provisions.” Other cases relied upon by appellee are discussed by the Supreme Court in the case above referred to as follows: “In Armour & Co. v. Industrial Board of Illinois, 273 Ill. 590, while the exact point raised in this case was not raised or decided, we affirmed the judgment of the Circuit Court of Cook county affirming a finding and award of the Industrial Board awarding compensation to the widow of a teamster, an employee of the Armour Packing Company, who had died as a result of injuries received from falling from his wagon while delivering goods of his employer. In Parker-Washington Co. v. Industrial Board of Illinois, 274 Ill. 498, it was held where a teamster employed by a teaming company which had contracted to deliver a quantity of crushed stone to a contracting company engaged in street paving, while standing up and reaching over to whip the horses he was driving lost his balance and fell under the wheels of the wagon and was killed, that the employer was liable under the Workmen’s Compensation Act. In Suburban Ice Co. v. Industrial Board of Illinois, 274 Ill. 630, we held that where a teamster employed by an ice and fuel company, whose duty it was to deliver ice and fuel and work in and around the place and care for the horses of the company, was kicked by one of the horses and died from the effects thereof, his widow and administratrix could recover under the provisions of the Workmen’s Compensation Act.”

It is interesting to note in this connection that in Vaughan’s Seed Store v. Simonini, 275 Ill. 477 [14 N. C. C. A. 1075], our Supreme Court has held that section 3 of the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. [[ 5475(3)] refers to the business and not to the person of the employer and where, as in that case, an employer is engaged in two kinds of business, one of which is extrahazardous under the provisions of the act and the other does not come within the act at all, that the mere fact that the employer is conducting both, does not entitle an employee, who is engaged at work in that business not covered by the act, to avail himself in case of injury of the provisions of the Workmen’s Compensation Act. In the plea in question it is stated that the employer H. C. Windt was doing business in the name of Acme Electric Company and “was then and there engaged in the business of doing electrical work”; also that plaintiff was an employee of Windt and “was engaged in the service of said H. C. Windt in and about his said business of doing electrical work”; further, “that the injuries sustained by the plaintiff, as alleged in his said declaration, were accidental injuries, and then and there arose out of and in the course of his employment with said H. C. Windt.’-’ The declaration, which must be read in connection with the p-lea, stated the circumstances under which the injury occurred and the business in which appellee was engaged at the time. It clearly appears from the plea and the declaration that appellee’s employer as well as appellants were engaged in lines of business which brought them under the provisions of the Workmen’s Compensation Act; that appellee at the time of the injury was directly engaged in assisting his employer to carry on the business in which he was engaged. We therefore conclude that the court below erred in sustaining appellee’s demurrer to appellants’ special plea.

It is said by counsel for appellants that, upon the argument of the demurrer in the trial court, the point relied upon by appellee was that the Workmen’s Compensation Act does not, under any circumstances, deprive a person who is injured through the negligence of one not his employer from maintaining an action against the party who injured him and cannot be impleaded in bar to such a suit. However that may be, it appears that since that time an opinion has been filed in the case of Keeran v. Peoria, B. & C. Traction Co., 277 Ill. 413, which has disposed of this question in a manner contrary to appellee’s contention. For the error of the court below in sustaining the demurrer to appellants’ amended plea, the judgment will be reversed and the cause remanded.

Appellee failed to file his brief in the time required by the rules of this court, although the time was extended to give him further opportunity to do so. He subsequently filed a motion for leave to file his brief and argument nunc pro tunc, which motion was taken with the case. While we are averse to relaxing our rules in this regard, yet the circumstances were such that we concluded to permit appellee’s brief to be filed as requested, and we have considered the same fully in passing upon the case.

Reversed and remanded.


text:
    W. G. Nivins, Appellee, v. Illinois Terminal Railroad Company, Appellant.
    (Not to Tbe reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. Lotos Bernkbtjteb, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    Statement of the Case.
    Action by W. Gr. Nivins, plaintiff, against Illinois Terminal Railroad Company, defendant, to recover for damages caused by the alleged defective construction of a railroad embankment. From a judgment for plaintiff, defendant appeals. The decision in Dettmer v. Illinois Terminal R. Co., 210 Ill. App. 653, which involves substantially the same facts and issues, except that the land is differently located, controls herein. The decision in Drda v. Illinois Terminal R. Co,, 210 Ill. App. 640, also applies to the questions involved in the case at bar.
    H. S. Baker, A. M. Fitzgerald and Warnock, Williamson & Burroughs, for appellant.
    Burton & Burton, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.


text:
    C. W. Terry, Trustee, v. Banner Clay Works. In the Matter of C. A. Bartlett, Receiver, Appellee, v. Edwardsville Home Trade Coal Company, E. A. Keller Company and E. J. Jeffress & Company, Appellants.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    Statement of the Case.
    Bill by O. W. Terry, trustee, complainant, against Banner Clay Works, defendant, to foreclose a second mortgage. After appearance was entered for defendant a decree of foreclosure was rendered and defendant’s property was sold thereunder and, after the expiration of the period of foreclosure, a deed was made to the purchaser as trustee for the second mortgage bondholders. On petition of complainant, filed in the foreclosure suit, a receiver was appointed with power to conduct defendant’s business. By stipulation filed in court, the first mortgage bondholders waived their prior lien and consented to the appointment of the receiver. The order appointing the receiver authorized him, to issue receiver’s certificates not to exceed $15,000, and made them a first lien. From a decree confirming a master’s report overruling objections to allowing the receiver credit for certain items paid out by him, certain creditors appeal.
    Burton & Burton, for appellants.
    Terry, Gueltig & Powell, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

Abstract of the Decision.

Receivers, § 50* — when evidence sustains decree allowing credit for solicitor’s fees, expenses and repairs. On appeal from a decree confirming a master’s report overruling exceptions to allowing a receiver credit for certain sums paid out by him as solicitor’s fees and to meet current expenses and repairs, evidence examined and held sufficient to sustain the decree.


text:
    Commissioners of Highways of the Township of Edwardsville et al., Appellees, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company et al., Appellants.
    1. Contempt, § 61

       — when defendant entitled to discharge. In common-law proceedings, 'if defendant’s sworn answer is sufficient, standing alone, to purge him of the alleged contempt, he is entitled to be discharged.
    2. Contempt, § 61* — when by railroad company in failing to drain highway under crossing not purged by ansioer. Contempt of a railroad company in failing to comply with a writ of mandamus requiring it to drain the highway at a point where it passes under an overhead crossing, is not purged by an answer setting up that a temporary injunction was issued restraining it from draining the highway in such a manner as to injure the property of an adjoining owner, which injunction it had not sought to dissolve, and also setting up that the jurisdiction over the construction of a different type of crossing is in the Public Utilities Commission, whether or not it appears that any attempt was made to obtain the consent of the commission to the erection of a different type of crossing.
    3. Contempt, § 78* — -when fine not so excessive as to warrant reversal. A fine of $1,000 imposed upon each of two railroad companies for contempt in failing to drain the highway at a point where it passed under the track, held, while unnecessarily severe, not' so excessive as to call for a reversal on the ground that the trial court had abused its discretion.
    Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 5, 1918.
    Rehearing denied June 22, 1918.
    D. E. Keefe, for appellants; L. J. Hackney and Frank L. Littleton, of counsel.
    Terry, Gueltig & Powell, for appellees.

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

   Mr. Justice Higbee

delivered the opinion of the court.

The appellant, Cleveland, Cincinnati, Chicago & St. Louis Railway Company, operates a line of railroad from Lenox in Madison county, to Hillsboro, in Montgomery county, Illinois, constructed in about 1903, which it leases from appellant, Chicago, Indianapolis & St. Louis Short Line Railway Company.

There is a public highway on the line between the towns of Edwardsville and Chouteau. The grade of the railroad where it crosses this highway was some 20 feet above the grade of the highway. The railway companies and the highway commissioners of these two towns entered into an agreement at the time the railroad was constructed whereby the railway companies were permitted to cross the highway above grade and to construct a concrete arch across the highway for the public to pass under the railroad. The grade of the railroad was not elevated quite enough to permit the concrete arch to have an opening sufficiently high for vehicles to pass through, and it was agreed that the railway companies might excavate and depress the highway under the arch to the depth of about 4 feet, and it was further agreed that the companies should keep the place where the highway was excavated properly drained. After the excavation was made and the archway completed, water in times of heavy rainfall and during the winter season would accumulate under the archway and to a greater or less degree interfere with the use of the highway at that point.

It appears that various suits were instituted against appellants before justices of the peace under the statute with reference to obstructing highways. It also appears that after such suits were commenced, appellants made some preparations and took some steps to drain the highway by the laying of a tile drain upon their right of way to what was known as the “Diversion Canal,” but, before any considerable work was done, Mary Bender, who owned land adjoining the railroad right of way, applied for. and obtained a temporary injunction without notice to appellants, restraining them from laying the tile upon their own right of way, for the reason it would bring additional water upon her land. An answer was afterwards filed to the bill for injunction, and the matter has since stood upon the bill and the answer, without any further steps being taken. It is not clear from the record when this injunction was issued, but it must have been prior to October, 1912. On the 9th day of October, 1912, appellees applied to the Circuit Court for a writ of mandamus to compel appellants to carry out their agreement and properly drain the highway under the arch. Appellants filed a demurrer to the petition for mandamus which was overruled. On January 25, 1916, appellants filed an answer to the petition. Upon a hearing before the court, the issues were found in favor of appellees and on February 24, 1916, the court entered an order awarding the writ of mandamus as prayed for in the petition. In the order directing the issuance of the writ, the court found that the writ of injunction theretofore issued at the suit of Mary Bender against appellants should be so modified as to permit appellants to do any work in the way of building ditches or connecting borrow pits, provided said work was not done in any manner which would cause injury to or cause water to flow upon the lands of said Mary Bender, which would not naturally flow there. A writ of mandamus was issued on June 21, 1916, and served upon appellants June 25,1916, directing them forthwith to proceed to take steps to construct the necessary ditches or drains to drain the depression in the highway within 90 days, unless, for good cause shown, further time should be given by the court. On April 11,1917, appellees filed a petition for a citation against appellants to show cause why they should not be held in contempt of court for failure to obey such order and writ of mandamus. On May 1,1917, appellants filed their answer to such petition, reciting that after complaints had been made against them in the justice courts, their engineers determined that the only possible or feasible way of relieving the situation was by putting in the drainpipe hereinbefore mentioned; that after levels had been taken and the work of setting the pipe actually begun, the Mary Bender injunction was issued whereby the work undertaken was stopped and prevented by process of law; that after conference with Mary Bender and her attorneys it was agreed that the work might go forward in a certain manner, but appellants’ engineers reported that to carry on the work in the manner agreed upon, it was necessary to deepen a certain “cattle pass” which Mary Bender refused to permit. The answer further recites that appellants’ engineers then devised a plan to construct an approach up to and over the right of way and that land was purchased from an adjacent owner in such a quantity as to afford an easy approach up to and over the right of way of appellants constituting a grade crossing; that appellants were then advised by their attorneys that they had no authority to establish such a grade crossing without first having obtained the consent thereto of the Board of Public Utilities; that such board since its creation by the Act of June 26, 1913, has sole jurisdiction over the establishment of crossings and their grades and that any order made by the Circuit Court on February 24, 1916, or at any time since June 26, 1913, “with reference to affording or constructing a crossing that might relieve against the conditions complained of in this proceeding, would be null and void, and that the same might be challenged by any person interested”; and that because of these facts appellants had been unable to carry out and comply with the order of the Circuit Court of February 24, 1916. This answer was sworn to by counsel for appellants and was also supported by an affidavit of Hadley Baldwin, assistant chief engineer for one of the appellants, stating that he had visited the crossing in question, together with another civil engineer, W. C. Kegler, and counsel for appellants, and that it was then determined by them that the best solution of the conditions complained of was to leave the crossing beneath the railway and to construct an overhead crossing also, so that the public might have the advantage of both; that it was sought to have appellees consent to such an arrangement, but appellees refused to do so by reason of which refusal “the progress of bringing about the crossing has been retarded.” Upon consideration the court found appellants guilty of contempt of court for failure to obey the writ of mandamus issued by the court, imposed a fine of $1,000 on each of them and entered judgment in favor of the People of the State of Illinois against, appellants for $2,000 and the costs of the suit. From that judgment the railways appealed to this court.

It is insisted by counsel for appellants that the answer squarely met and denied the alleged contempt, and that this being a contempt proceeding at common law, they should have been discharged on their answer. It is the rule in common-law proceedings, that if the defendant’s sworn answer is sufficient, standing alone, to purge him of the alleged contempt, he is entitled to be discharged. (Oster v. People, 192 Ill. 473; Stull v. People, 173 Ill. App. 512.) Appellants also contend that the answer discloses their inability to comply with the order of the court, and that they did not wilfully disregard the order of the court, and are therefore not in contempt. These contentions are but an elaboration of the first contention and they may all be considered together. Counsel based their contention that the answer purges appellants of any contempt, upon two grounds, namely: First, that the writ of mandamus commanded them to do what the Bender writ of injunction, issued by the same court, restrained them from doing; and second, that the Board of Public Utilities had full jurisdiction over the matter of constructing a crossing over the railroad, and the court had no authority to award the writ. It appears that the writ of injunction had been issued before the hearing on the petition for the writ of mandamus, and that fact seems to have been urged as a matter of defense to the petition for the mandamus. In the writ of injunction they are restrained from draining the roadway in such a manner as will cause injury to or water to flow upon the lands of Mary Bender, which would not naturally flow there. The mandamus does not confine them to any one way of draining the land and the answer here does not disclose that any attempt was made to drain the highway in any manner except along the right of way and does not recite that it was impossible to construct a drain sufficient for the purpose without causing the injury to the Bender land or canse water to flow thereon which would not naturally flow there. The injunction was issued without notice to appellants and after answer was filed by appellants no effort was made by them to dissolve this temporary injunction, but they were satisfied to allow it to remain and now ask advantage of that situation.

It would appear that an attempt in good faith on the part of appellants to comply with the requirements of the order for mandamus would have required some effort on their part to cause the injunction to be dissolved. Neither does the answer show any effort on the part of appellants to obtain the consent of the Board of Public Utilities to construct an overhead crossing. But, if it had done so, this fact would have constituted no defense in this case as the writ of mandamus did not direct them to construct an overhead crossing but to drain the archway. The order was rendered February 24, 1916, the writ of mandamus was issued June 16, 1916, and the present petition filed April 11, 1917, and during all this time the answer discloses little, if any, effort on the part of appellants to comply with the true intent of the order or writ and no extension of time to permit such compliance was asked for by them. From the order awarding the writ of mandamus no appeal or writ of error was prosecuted and the judgment therefore cannot be questioned in this proceeding. Burdette v. Munger, 144 Ill. App. 164. The proofs do not appear to show an attempt in good faith on the part of appellants to comply with that order and therefore the order of the court below finding defendants guilty of contempt of court should be sustained.

While it appears to us that the fines inflicted upon appellants were unnecessarily severe, and that fines in lesser amounts would have as well subserved the ends of justice, yet this was a matter which must be left largely to the discretion of the trial court, and the amounts imposed are not so excessive as to call for a reversal of the judgment by this court for that reason alone.

Judgment affirmed.

Affirmed.


text:
    W. A. Metcalf, Appellee, v. Chicago Sandoval Coal Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Master- and servant, § 620* — when admission of evidence showing that safer method of work could have been employed is error. In an action to recover for personal injuries to an employee through failure to provide a safe place to work, the question for the jury is not whether the place could have been made safer by the adoption of a different kind of safeguard from that employed, but if it was reasonably safe with the safeguard which was employed, and the admission of evidence showing that a safer method could have been employed is reversible error.
    2. Master and servant, § 800

       — when instruction on safe place to work is erroneous. In an action by an employee to recover for personal injuries, an instruction, given at plaintiff’s request, which, in substance, states that plaintiff may recover if defendant failed to provide a suitable and reasonably safe place to work, is objectionable as omitting to state that such failure must have contributed to the injury and as requiring defendant to provide a suitable and reasonably safe place to work, instead of requiring that he use reasonable care to provide such a place.

      Appeal from the Circuit Court of Marion county; the Hon. James C. McBride, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 5, 1918.
    Statement of the Case.
    Action on the case hy W. A. Metcalf, plaintiff, against Chicago Sandoval Coal Company, defendant, to recover damages for personal injuries resulting in the loss of sight of an eye, alleged to have been received while working as dock boss in defendant’s mine. From a judgment for plaintiff for $2,000, defendant appeals.
    Noleman & Smith, for appellant.
    L. B. Skipper and G. F. Merion, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.

3. Damages, § 205* — when instruction is objectionable as failing to limit damages to those alleged in declaration. An instruction, in an action for personal injuries to an employee, which states that plaintiff may recover any damages which he is shown to have sustained, if defendant failed to provide him a safe place to work, is objectionable as failing to limit the damages recoverable to those alleged in the declaration.

McBride, J., took no part on the hearing of this case.


text:
    Joseph Connibol, Appellee, v. Mt. Olive & Staunton Coal Company, Appellant.
    1. Workmen’s Compensation Act, § 12

       — what employee suing at law for personal injuries must allege and prove. Before an employee of a mining company can maintain an action at law for damages on account of injuries sustained in the course of his employment, he must allege and prove that his employer is not under the Workmen’s Compensation Act.
    2. Pleading, § 441* — proof of allegations of declaration. Every material allegation of a declaration must be proved.
    3. Workmen’s Compensation Act, § 2* — how allegation that employer has rejected must be proved. In an action by an employee for personal injuries, the allegation that the employer has rejected the Workmen’s Compensation Act is not proved until it is shown by evidence that every step required by the act for rejecting it has been taken, which requires proof of the filing and posting or personal service by the employer of notice of his rejection of the act, and failure to prove that both of these steps have been taken is a failure to prove the ultimate fact alleged without which there can be no recovery.
    4. Workmen’s Compensation Act, § 2* — who has burden of proving rejection of by employer. In an action by an employee to recover for personal injuries, the burden is on plaintiff to show that defendant has rejected the Workmen’s Compensation Act and has not only filed but also has posted or personally served the statutory notice to that effect.
    5. Workmen’s Compensation Act, § 12

       — when verdict should he directed for employer in action hy employee for personal injuries. Where, at the close of plaintiff’s evidence, in an action by an employee to recover for personal injuries, defendant moves for a peremptory instruction on the ground that plaintiff has failed to show that defendant had posted or served notice of its election to reject the Workmen’s Compensation Act, plaintiff may supply the lacking proof, and, on his failure to do so, the instruction to find for defendant should be given.
    6. Workmen’s Compensation Act, § 2* — when amendments to may not he taken advantage of. Amendments to the Workmen’s Compensation Act changing the requirements as to proof of an employer’s rejection of the act cannot be taken advantage of in an action which had been tried before the act was amended.
    Appeal from the Circuit Court of Madison county; the Hon. J. F. Gielham, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 5, 1918.
    A. M. Fitzgerald and William E. Wheeler, for appellant.
    Burton & Burton and D. H. Mudge, for appellee.

      Se© 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 Higbee

delivered the opinion of the court.

On November 21, 1914, while appellee, who was employed by appellant in its mine in Madison county, Illinois, was loading coal, a portion of the coal fell from the face and roof of the crosscut of the mine where he was working and in his attempt to get away appellee claims he caught his foot on the track laid in the crosscut and fell and that the coal fell on and severely injured him.

This suit was brought to recover damages on account of such injury, the declaration consisting of three counts. The first count alleged that appellant failed to provide appellee with a safe place in which to work, in that the ties and track on which the cars were to be loaded were a foot and a half higher than the floor of the room. The second count charged appellant wilfully failed to have its mine inspected and the dangerous condition of the track marked and reported as provided by the Mining Act. The third that appellant’s mine examiner inspected the mine and observed the dangerous condition of the track but wilfully failed to mark and report the same as required by the Mining Act. Each count avers that appellant had rejected the Workmen’s Compensation Act. A plea of the general issue was filed and upon trial of the case before the court and a jury a verdict in the sum of $3,250 was returned in favor of appellee. This appeal was perfected to reverse the judgment entered upon that verdict.

At the close of appellee’s evidence appellant moved the court to give the jury a peremptory instruction to find it not guilty and in support of that motion counsel for appellant presented the argument that the evidence failed to show that appellant was not under the Compensation Act and that there was a failure of proof to show notice to the plaintiff personally or by posting. The motion to instruct the verdict in favor of appellant wlas overruled by the court and counsel then stated that appellant would proceed to the trial of the case “upon its other defense of not guilty of negligence.” At the close of all the evidence in the case, appellant again moved the court for a peremptory instruction in its favor and the motion was again denied. A number of errors are assigned and argued by appellant, but in our view of the case it is unnecessary for us here to consider any of them except those which relate to the claimed error of the court in refusing the peremptory instruction offered by appellant as above referred to. In the discussion whether the court erred in refusing to hold that appellee had failed to make out a case for the reason that the proof failed to show appellant had rejected the provisions of the Workmen’s Compensation Act, we have received but little assistance from briefs of counsel. No authorities are cited by either side and the arguments presented in support of the respective contentions are scant.

We find from an examination of the record that upon the trial appellee introduced in evidence a certificate of the secretary of the Industrial Board, stating that appellant had filed with such board its election not to provide and pay compensation according to the provisions of the Workmen’s Compensation Act. But no proof whatever appears to have been made or offered that appellant had served appellee with notice of such election or had posted such notice as required by section 2 of that Act [Callaghan’s 1916 St. Supp. ][ 5475(2)].

It is well established by the decisions of the courts of appeal of this State rendered since the enactment of this act that before an employee of a mining company can maintain an action at law for damages on account of injuries sustained in the course of his employment, he must allege and prove that his employer is not under the act. In the case of Means v. Terminal Railroad Ass’n of St. Louis, 202 Ill. App. 591, this court held that a declaration against a common carrier for damages for the death of an employee, which failed to show that such employee was not covered by the Workmen’s Compensation Act, failed to state any cause of action. To the same effect is the decision of this court in the case of Yeancey v. Taylor Coal Co., 399 Ill. App. 14. The latter case also held that such a declaration was not cured by verdict. These decisions are based upon the ground that by the Workmen’s Compensation Act all employers and employees (such as appellee and appellant in this case) come under the act automatically, unless they reject it in the manner provided by the statute, and that the fact the defendant is not operating under the act is essential to the injured person’s right of action. In Krisman v. Johnston City and Big Muddy Coal & Mining Co., 190 Ill. App. 612, this court has held that under the Workmen’s Compensation Act of 1911 (J. & A. 5449 et seg.), a judgment for plaintiff could not be sustained where there was no averment in the declaration that the parties w;ere not under the provisions of the act and no proof to show that they or either of them had filed an election not to come under the act. This court held in the ease of Kleet v. Southern Illinois Coal & Coke Co., 197 Ill. App. 243, that a declaration alleging the filing of the notice required by statute, but not alleging the posting of such notice, was good after verdict, where proof was made of the posting. In that case the court holds that the allegation that the employer had rejected the provisions of the act was an averment of an ultimate fact which was sufficient after verdict upon proof of facts, without which such ultimate fact could not have been sustained. If the averment of the ultimate fact of the rejection of the act is an essential allegation of the declaration, as there held by this court, then it necessarily follows that such essential allegation must be sustained by proof. It is a principle too well established to need the citation of authorities that every material allegation of the declaration must be proved. The allegation of the ultimate fact of the rejection of the act is not proved until it is shown by the evidence that every step has been taken, which the statute requires shall be taken before the provisions of the act can be rejected. The statute [Callaghan’s 1916 St. Supp. [[ 5475(2)] provides that the act is not rejected by the employer “unless and until notice in writing of his election to the contrary is filed with the Industrial Board and unless and until the employer shall either furnish to his employee personally or post at a conspicuous place in the plant, shop, office, room or place where such employee is to be employed, a copy of said notice of election not to provide and pay compensation according to the provisions of this Act.” The statute, in effect, provides that it is conclusively presumed that this ultimate fact of rejecting the provisions of the act has not been accomplished “unless and until” the notice has been both filed and posted or personally served. Failure to prove that both of these steps have been taken must be held to be failure to prove the ultimate fact alleged in this declaration, without which appellee has no right to maintain an action at law in this case. Any other holding would be inconsistent with the authorities above cited. The Workmen’s Compensation Act of 1911 (J. & A. 5449 et seq.) provided that every employer was presumed to have elected to provide and pay compensation according to the provisions of the act unless and until notice of his election to the contrary was filed with the State Bureau of Labor Statistics with the following proviso: “Provided, however, that before any such employee shall be bound by the provisions of this Act, his employer shall either furnish to such employee personally at the time of his hiring, or post in a conspicuous place at the plant or in the room or place where such employee is to be employed, a legible statement of the compensation provisions of this Act.”

The plaintiff in the case of Curran v. Wells Bros. Co., 281 Ill. 615, had sued the defendant for injuries sustained while employed by defendant in the construction of a building. The defense was that plaintiff was under the provisions of the Workmen’s Compensation Act of 1911 and could not maintain an action at law. The proof showed defendant had not posted the notice mentioned in above proviso in the building where plaintiff was injured but had posted it in buildings where plaintiff had worked for defendant a short time prior thereto. • In the opinion rendered in that case the court said: “The law provided that certain definite things should be done before he [plaintiff] should be bound by the provisions of the act,” and “In order to show that defendant in error [plaintiff] was bound by the Workmen’s Compensation Act it was necessary to show the posting of the notice required by clause (c).” The court held an action at law could be maintained in that case because no notice had been posted in the building where plaintiff was injured. According to the decisions under the Act of 1913, an action at law cannot be maintained against appellant in this case unless it has been relieved from the provisions of the 1913 law. That law provides that certain definite things shall be done before it can be so relieved. Those definite things are the filing with the Industrial Board and the posting or serving of the notice. The burden of showing appellant was not bound by the Workmen’s Compensation Act in this case was upon appellee, and in order to show that, as our Supreme Court has recently held in the case of Beveridge v. Illinois Fuel Co., 283 Ill. 31, it was necessary to prove the posting or service of the notice as well as the filing of it. This was not done and appellee therefore did not establish his right to maintain this action at law.

When appellant at the close of appellee’s evidence moved for a peremptory instruction in its favor for the reason that appellee had failed to prove that appellant had posted or served the required notice of its election not to come under the provisions of the Compensation Act, appellee was fully notified of the defect in its proof and could have had the opportunity of furnishing the lacking proof had it desired and was able to do so. In the absence of such proof the court should have given the peremptory instruction requested by appellant and directed the jury to find a verdict in its favor. We are not unmindful of the fact that since the trial of this ease in the court below, the Workmen’s Compensation Act has been amended so that the posting or serving of the notice above referred to by the employer is not now required; also that a section has been added providing that where the plaintiff alleges in his declaration or other pleading that the employer has filed notice of his election not to provide and pay compensation under the act, and such allegation is not denied by a verified pleading, the employer shall be presumed to have filed his notice of nonelection, but we are of opinion that the amendments to the law made since the trial of the case cannot be taken advantage of by appellee to sustain this judgment. The judgment will be reversed and the cause remanded.

Reversed cmd remanded.


text:
    Charles F. Brown, Appellant, v. Pearly Williams, Appellee.
    1. Justices of the peace, § 172— when appeal cannot he prosecuted. No appeal can be prosecuted from a verdict before a justice of the peace until the justice has rendered judgment on such verdict, and a court to which an appeal is taken before such entry of judgment acquires no jurisdiction.
    2. Justices of the peace, § 106* — necessity of judgment and requirements of. While the entry of a judgment by a justice of the peace on a verdict returned in his court is merely a clerical act and requires no formal words, a judgment of some description must be entered.
    3. Justices of the peace, § 218* — when appeal dismissed on motion. Where an appeal is taken to a Circuit Court from a verdict before a justice of the peace on which no judgment has been entered, it will be dismissed on motion.

      4. Justices of the peace — when objection to jurisdiction of Circuit Court on appeal cannot be raised after verdict. Where an appeal is taken from a verdict before a justice of the peace to the Circuit Court, in an action of the subject-matter of which the latter court has original jurisdiction and no objection is made that no judgment was entered by the justice, but both parties appear and proceed to trial, objection to the jurisdiction of the Circuit Court on the ground that no judgment was entered by the justice cannot be raised after verdict in the Circuit Court.
    Appeal from the Circuit Court of Clay county; the Hon. William B. Weight, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 5, 1918.
    James H. Smith and J. L. Boyles, for appellant.
    H. W. Shriner, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.

This suit was commenced by appellant before a justice of the peace to recover damages occasioned by the failure of appellee to deliver a horse which appellant claimed to have purchased of him. Appellee denied there was any contract of sale. The case was tried before a jury and resulted in a verdict for appellee but the justice rendered no judgment on the verdict, the entry of the verdict being the last entry upon his docket. Within 20 days from the date of the trial appellant filed an appeal bond with the justice, who' thereupon transmitted all papers and a transcript of his docket to the Circuit Court. At the next term of that court both parties appeared in person and by their attorneys and the case was tried before a jury, which returned a verdict for appellant and assessed his damages at $30.

Appellee made a motion for a new trial but later withdrew it and entered motions in arrest of judgment, and to dismiss the appeal on the ground that the Circuit Court had no jurisdiction of the subject-matter because no judgment had been entered in his docket by the justice. The court allowed the motion, arrested judgment, dismissed the appeal and rendered a judgment against appellant for costs, from which this appeal was prosecuted. The action of the Circuit Court in arresting judgment and dismissing the appeal is assigned as error. Whatever may be the rule in other jurisdictions it is well established by the decisions of this State that no appeal can be prosecuted from a verdict of a jury before a justice of the peace until the justice has rendered judgment on such verdict as required by statute. A court to which an appeal is prosecuted from the verdict before a justice upon which no judgment has been entered acquires by the appeal no jurisdiction of the cause. (Conant v. Watts, 196 Ill. App. 569; Church v. Stunkard, 101 Ill. App. 148.) It is true the entry of a judgment by a justice of the peace upon a verdict returned in his court is but a clerical act and no formal words are required, but it is necessary that some kind of a judgment be entered. (Church v. Stunkard, supra.) In this case no such judgment was entered and the appeal was not properly taken. Had a motion been made before the trial of the case in the Circuit Court to dismiss the appeal for want of jurisdiction, it would have been well founded. Both parties, however, consented or elected to go to trial without any objection whatsoever. The Circuit Court had original jurisdiction of the subject-matter and under the statute the trial was de novo.

In Randolph County v. Ralls, 18 Ill. 29, it was said in reference to the question of jurisdiction of the Circuit Court of an appeal from an order of the County Court disallowing a claim: “The Circuit Court, then, had original jurisdiction of the subject-matter, and the parties, by voluntarily appearing and consenting to a trial between them upon that subject-matter, waived all objection to jurisdiction of the parties. The suit stood, so far as the jurisdiction of the court is concerned, the same as if it had been originally commenced in the Circuit Court in the ordinary way, and the parties brought in by the service of process; or as if they had voluntarily entered their appearance without any previous proceedings, and without objection gone to trial. * * * The rule is that jurisdiction of the subject-matter cannot be conferred upon a court by consent of the parties, nor can want of it be waived; but where the law confers upon the court original jurisdiction of the subject-matter, full appearance, without objection, confers upon the court jurisdiction of the person, and it may then adjudicate.” In Hanchett v. Williams, 24 Ill. App. 56, where no transcript was filed on an appeal to the Circuit Court from a judgment of the justice of the peace, but where both parties went to trial and the cause was tried upon the merits without objection, the following language was used by the court in its opinion affirming the judgment: “As the appellant appeared and went to trial in the Circuit Court, he cannot be heard now to object to the insufficiency of the transcript. Where the parties appear and try the case in the Circuit Court upon its merits, without objection, the court will have jurisdiction without a transcript, and the evidence will be looked into to see what the demand was and what the defense.”

In the case at bar the court unquestionably had original jurisdiction of the subject-matter and the plaintiff and defendant both appeared and proceeded to trial without objection thereby giving jurisdiction of the person. The cases of Conant v. Watts and Church v. Stunkard, above referred to, which are relied upon by appellee to sustain the judgment in this case, are not in point, as in each of those cases a motion to dismiss the appeal for want of jurisdiction was made and overruled before the trial was entered into and the action of the court in overruling such motion was held to be error. In this case, however, appellee made no such motion but he, as well as appellant, voluntarily went into the trial and the case consequently occupied the same position as though the action had been originally commenced in the Circuit Court in the ordinary way and appellee had, without service of process, entered his appearance and gone to trial. Appellee cannot be permitted to test the strength of his case by appearing in court and trying the same without objection and, after the verdict has gone against him, trifle with the court by then entering a motion to dismiss the appeal for want of jurisdiction. The Circuit Court had original jurisdiction of the subject-matter, the parties to the suit gave jurisdiction of the person and the court proceeded in an orderly way to a verdict.

From what is above said it will appear that the court below erred in sustaining the motion of appellee to arrest the judgment and dismiss the appeal for want of jurisdiction, and for that reason the judgment will be reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

jReversed and remanded.


text:
    Frank Wadley, Appellee, v. Schwartz Brothers Express Company, Appellant.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Roads and bridges, § 239

       — when evidence supports verdict for plaintiff in action to recover for injuries to pedestrian struck by horse and wagon. In an action to recover for personal injuries leceived by plaintiff by being struck by a horse and wagon while he was crossing the street diagonally at a street intersection, proof that the wagon was being driven at a lively gait on the wrong side of the street and that plaintiff looked in the proper direction for 'approaching vehicles is sufficient to support a verdict for plaintiff.
    2. Roads and bridges, § 240* — negligence of driver of wagon and contributory negligence of pedestrian as questions for jury. In an action to-recover for personal injuries to a pedestrian in the street struck by a horse-drawn vehicle, the questions of negligence and contributory negligence held for the jury.
    Appeal from the City Court of East St. Louis; the Hon. H. L. Browning, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    Statement of the Case.
    Action by Frank Wadley, plaintiff, against Schwartz Brothers Express Company, defendant, to recover for personal injuries alleged to have been received through the negligence of defendant’s servant. From a judgment for plaintiff for $100, defendant appeals.
    P. K. Johnson and Connett & Currie, for appellant.
    Borders & Borders, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.


text:
    Joseph Dickson, Jr., Administrator, Appellant, v. Millie Ann Fisher et al., Appellees.
    1. Exectjtobs and administratobs, § 577

       — when funis remaining in hands of ancillary administrator should be paid to domiciliary administrator. Funds remaining in the hands of an ancillary administrator after the payment of all claims should be paid to the domiciliary administrator for distribution, especially where all of the heirs, devisees and legatees live in the State of the domicile, and it is no substantial objection to such transfer that the estate will be subjected thereby to the further, payment of costs and commissions.
    2. Executors and administrators, § 350* — when order of Circuit Court on appeal as to disposition and distribution of funds of estate is not void because not final. An order of the Circuit Court, entered on an appeal from the Probate Court, which directs the disposition of funds of an estate and that such funds be retained in another manner than the Probate Court had directed until further order of the latter court, and that the funds be distributed by a certain person when distribution should be ordered by the Probate Court, is not void as not being in effect a final order.
    Appeal from the Circuit Court of Madison county; the Hon. J. F. Ghxham, Judge, presiding. Heard in this court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Reversed and remanded with directions.
    Opinion filed April 5, 1918.
    Keefe, Hadley & Baxter and Walter N. Davis, for appellant.
    A. M. Frumberg and Warnock, Williamson & Burroughs, for appellee Millie Ann Fisher.

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

   Mr. Justice Higbee

delivered the opinion of the court..

This is an appeal from an'order or decree rendered by the Circuit Court of Madison county, on appeal from an order made by the Probate Court of that county, concerning the distribution of $9,538.53 in the hands of appellee, Henry C. Gierke, administrator with the will annexed of the estate of Guy K. Fisher, deceased.

There is no controversy as to the facts, the case having been heard principally upon a stipulation of the facts. The deceased, Guy K. Fisher, died testate on January 29, 1915, at St. Louis, Missouri, of which city he was a resident at and prior to the time of his death. He left no child nor descendants of a child surviving him, but left as his only heirs at law his widow, Millie Ann Fisher, his mother, Jane M. Fisher, his brother, James E. Fisher and his two sisters, Mary L. Fassett and Bose M. Fisher, appellees here and all residents of the City of St. Louis. His will was admitted to probate in the Probate Court of the City of St. Louis and one Louis M. Steinberg was named as executor and qualified as such. The inventory and appraisement bill filed by him in the Probate Court of St. Louis showed the estate amounted in the aggregate to $101,138.67, consisting of notes, accounts, stocks, bonds, cash, merchandise and chattels, all located in St. Louis. The deceased also left an estate of about $10,000 in the City of Alton, Madison county, Illinois, consisting chiefly of one-half interest in a jewelry store in that city. Henry C. Gerke was appointed administrator with will annexed of the estate in Illinois. By the terms of the will of deceased his widow, Millie Ann Fisher, was to receive all his estate, real, personal and mixed, save bequests of one dollar each to his mother, brother, sisters and $1,500 to his mother-in-law, Mary L. Bronenkamp. By orders entered by the Probate Court of St. Louis, the executor had distributed to the widow, assets of the estate appraised at $59,527.60, and she had given him a refunding bond in the sum of $10,000. In October, 1915, the mother, brother and sisters of the deceased filed in the Circuit Court of the City of St. Louis their bill to set aside the will. Upon the filing of this bill in accordance with the law of Missouri the authority of Louis M. Steinberg to serve as executor was suspended and the appellant, Joseph Dickson, Jr., was appointed administrator pendente lite of the estate and is now acting as such administrator. On the trial of the case to set aside the will, the Circuit Court of the City of St. Louis entered a decree sustaining the will and from that decree an appeal was taken to the Supreme Court of Missouri, where the cause is still pending.

Henry C. Gierke, administrator with the will annexed, fully administered the estate in Illinois, and, after the expiration of one year from his appointment, filed his final report showing a balance in his hands of $9,538.53 after payment of costs of administration and all debts owing by the estate in Illinois. In his report the administrator with the will annexed recited the history of the estate substantially as above stated, and asked the court to ascertain and direct to whom such balance should be paid. The widow of deceased appeared and requested that said balance be turned over to her as the principal legatee under the will. The administrator pendente lite asked that it be turned over to him as administrator of the domiciliary or principal administration. The Probate Court directed that one-half of the fund be paid to the widow, upon her executing and delivering to the administrator with the will annexed a refunding bond in the sum of $7,000, and that such administrator retain the other one-half of the fund until the further order of the court. Upon appeal to the Circuit Court that court directed the administrator with the will annexed to retain all the fund until the further order of the Probate Court, and that distribution, when finally ordered by the Probate Court, be made by the administrator with will annexed directly to the person or persons entitled to the fund. It was stipulated that in the event the will should be set aside by the courts of Missouri under the law of Missouri, the widow of the deceased would receive one-half of the estate, and the other half would descend to the mother, brother and sisters.

This appeal was taken from the order of the Circuit Court by Joseph Dickson, Jr., administrator pendente lite. It is conceded by the parties that the administrator pendente lite in the City Court of St. Louis is the domiciliary or principal administrator and that the administrator with will annexed in the Probate Court of Madison county, Illinois, is the ancillary administrator, and also that whether distribution of the fund to the distributees be made by such domiciliary administrator or by the ancillary administrator it must be made according to the laws of Missouri, that is, according to the laws of the domiciliary administration. It is contended by appellant, first, that under the law and the stipulated facts the Circuit Court should have entered a final order directing this fund to be transferred to the appellant, as administrator of the domiciliary or principal administration; and second, that the order entered by the Circuit Court is void, as it practically reversed the Probate Court and remanded the matter to the Probate Court with directions, and the Circuit Court should have entered a final order directing the distribution of this fund.

Appellees contend that funds remaining in the hands of an ancillary administrator may or may not be ordered transferred to the domiciliary administrator as the court may deem proper in the exercise of a sound judicial discretion, according to the circumstances of each particular case; and further that as the record in this case shows practically all the debts in Missouri have been paid, and a large sum still remains in the hands of the domiciliary administrator, the court should, in the exercise of such discretion, have ordered the fund paid to the widow as principal legatee, as a transfer of it to the domiciliary ad mini atrator would subject the fund to the payment of further costs and commissions. Errors were assigned by appellant and cross errors by appellees raising the various questions respectively contended for. In support of their position counsel for appellees cite a great number of textbook-authorities and decisions of foreign States, but no decisions of the courts of Illinois. Under those authorities it appears to be the rule that it rests in the discretion of the court, whether to direct the ancillary administrator to pay the funds remaining in his hands, after payment of all claims, directly to the distributees or to the domiciliary administrator. Whatever the rule may be in other jurisdictions the courts of Illinois appear to have held to the doctrine that such funds should be paid to the domiciliary administrator for distribution. One of the earliest cases holding to that doctrine is the case of Young v. Wittenmyre, 123 Ul. 303. In that case Wittenmyre, a resident of Cook county, Illinois, died there intestate, leaving a widow and two children by a former marriage. The widow was appointed administratrix by the Probate Court of that county. The inventory filed by her showed the deceased owned real estate in Illinois, but not personal property. The widow’s award as finally fixed and determined by the court was $1,030. The deceased owned considerable personal property in Appanoose county in the State of Iowa. Under the laws of that State the widow was also appointed administratrix of the estate by the Circuit Court of that county, and proceeded to settle up the estate in Iowa. After payment of all debts there remained in her hands the sum of $2,850, which she distributed between herself and the children and upon the final report was discharged by the court in Iowa. After her discharge in Iowa she filed in the Probate Court of Cook county, Illinois, her petition for an order to sell real estate to pay the widow’s award and costs of administration. The prayer of the petition was granted. On appeal -to the Supreme Court, Justice Craig, in rendering the opinion of the court reversing the action of the Probate Court, said: “Here, if the personal assets in Iowa are to be taken into consideration, personal property which passed into the hands of the administratrix was ample to fully pay all just claims against the estate, and no satisfactory reason was shown, on the trial in the Probate Court, why the personal assets were not appropriated to the payment of debts until the debts were satisfied, — before a distribution was made between the heirs. As Cook county, in this State, was the residence of William Wittenmyre at the time of his death, the administration granted 'here was the principal administration, and the letters granted in Iowa were but an ancillary administration. (Stevens v. Gaylord, 11 Mass. 262.) It was no doubt the duty of the administratrix in Iowa to collect all debts due the estate there, and convert all assets within that jurisdiction into money, and from the money pay all debts established against the estate in that jurisdiction; but after the debts in Iowa had all been paid, and a large balance was left in the hands of the administratrix, she had no right whatever to distribute such balance among the heirs in Iowa, but, on the other hand, it was her duty to bring the balance into this State, in order that it might be disposed of under the authority of the court within whose jurisdiction the deceased had his domicile. The balance, whatever it was, should have been returned to the principal administration.” This case is cited with approval in Smith v. Smith, 174 Ill. 52, but the doctrine is held to apply only to money or personalty or the proceeds of the sale of personalty, and not to apply to the proceeds resulting from the sale of real estate.

In Ramsay v. Ramsay, 196 Ill. 179, the facts briefly stated were, Rufus N. Ramsay, a resident of Clinton county, Illinois, died November 11, 1894. His son E. P. Ramsay was appointed administrator by the County Court of that county. Claims aggregating $183,854.70 were presented and allowed against the estate, among them being one in favor of the widow, Mrs. Ramsay for $18,931.72 and one in favor of Gf. VanHoorebeke for $2,020.42. Decedent also owned one lot in the City of St. Louis, Missouri. Am administrator w'as appointed by the Probate Court of St. Louis, and he proceeded to sell the city lot. Mrs. Ramsay and VanHoorebeke probated their claims in the court of St. Louis and received from the ancillary administrator there a payment equal to 12.44 per cent, of their claims. Later the domiciliary administrator presented a report to the County Court in Clinton county with a view of making a partial distribution of the estate among the claimants. Mrs. Ramsay and VanHoorebeke appeared and insisted they were entitled to receive full distributive shares of the assets reported by the administrator of Clinton county, without in any way being charged with the amounts received from the Missouri assets. On appeal the Circuit Court of Clinton county decided that the administrator should pay all claimants, except Mrs. Ramsay and VanHoorebeke, 12.44 per cent, on their claims, that being the amount already received by Mrs. Ramsay and VanHoorebeke on their claims from the ancillary administrator, and should then distribute the balance in his hands ratably among all claimants of the seventh class. The Supreme Court in affirming that decision said: “Upon the death of a person intestate, leaving assets in different States or countries, the administration in the domicile of the deceased is the principal administration through which, in contemplation of law, assets are to be distributed in payment of his debts. (Young v. Wittenmyre, 123 Ill. 303.) Administration in other States or jurisdictions must be held in order to collect the debts and reduce the assets into money, which are known as ancillary or auxiliary administrations. In the absence of statutory provision it is the duty of the auxiliary administrators to collect the assets, reduce them to money and transmit them to the principal administrator, or they may, under certain circumstances, pay claims probated there, transmitting only what remains in their hands to the principal administrator. ’ ’ The case of Young v. Wittenmyre, supra, is also cited with approval in other cases as late as Dickinson v. Belden, 268 Ill. 105 (113), in support of the doctrine that: “The place for final accounting and settlement is in the forum of the principal or original administration.” Under these authorities it appears that the courts of this State have clearly adopted the doctrine that funds remaining in the hands of an ancillary administrator after the payment of all debts must be transferred to the domiciliary administrator for final distribution.

Under the facts in this case, however, we are of opinion that even though it were a matter in the discretion of the court the funds in question should have been transmitted to the domiciliary administrator in Missouri. All the heirs, devisees and legatees lived in Missouri, all the creditors in Illinois had been paid, no resident of Illinois was longer interested in the estate and such action would have avoided any present or future complications. The fact that the transfer of the funds would have resulted in subjecting them to a further payment of costs and commissions is not to be considered as a substantial objection to such an order as costs of administration are but an incident to the right of succession to property by descent and the commissions can be regulated by the court of the principal administration so that they will be commensurate with the services rendered in the collection and distribution of the fund in that court and shall not prove to be an unjust burden upon the estate. We do not agree with the contention of appellant that the order of the Circuit Court was void because it was not in effect a final order, but we are in accord with his contention that, under the circumstances in this case, áuch court should have rendered an order directing the final disposition of the fund in question. For the reasons above stated the judgment will be reversed and the cause remanded with directions to the Circuit Court to enter an order against Henry C. G-erke, administrator with the will annexed, to pay over the funds of the administration in his hands to Joseph Dickson, Jr., administrator pendente lite by appointment of the Probate Court of St. Louis, Missouri.

Reversed and remanded with directions.


text:
    James Smith, Appellee, v. Saline County Coal Company, Appellant.
    (Fot to be reported in full.)
    Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 5, 1918.
    Statement of the Case.
    Action by James Smith, plaintiff, against Saline County Coal Company, defendant, to recover damages for personal injuries received while employed in defendant’s mine. From a judgment for plaintiff for $4,000, defendant appeals.
    Miley & Combe and A. E. Somers, for appellant; Warren Nichols, of counsel.
    Lewis, Ronalds & Lewis, for appellee.

      Abstract of the Decision.
    1. Mines and minerals — •when declaration sufficiently alleges that employee's leg was brolcen by being caught between car and motor. A declaration in an action by an employee to recover for personal injuries, alleged to have been caused by the derailment of a mine car, which alleges that because of the dangerous condition of the track the car was “derailed and the rear portion of the car was thrown up in the air and as a direct result thereof the front end of the motor upon which the plaintiff was riding and which he was then and there driving and propelling ran under and against the rear end of said car in such manner as to catch the right leg of plaintiff which was broken,” etc., while lacking in definiteness and precision, sufficiently alleges that plaintiff's leg was broken by being caught between the car and the motor, and not that it was already broken at that time.
    2. Mines and minerals, § 191

      - — when instruction on liability of owner for violation of duty to prevent miner entering unsafe mine is erroneous. In an action by a mine employee to recover for personal injuries, it is reversible error to give an instruction directing the jury to return a verdict for plaintiff if the preponderance of the evidence shows that defendant had violated its statutory duty to prevent plaintiff from entering its mine after it knew such place to be unsafe, without also instructing that plaintiff’s injury must have been the result of defendant’s neglect of its statutory duty.

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

   Mr. Justice Higbee

delivered the opinion of the court.