text:
    Urie J. Hamilton, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    (Not 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, 1916.
    Reversed and remanded.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action by Urie J. Hamilton, plaintiff, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, defendant, to recover damages for the loss of certain goods shipped over defendant’s railroad. From a judgment for plaintiff for $193.43, defendant appeals.
    P. J. Kolb and W. F. Scott, for appellant; L. J. Hackney and Frank L. Littleton, of counsel.
    Lewis, Ronalds & Lewis, for appellee.

      Abstract of the Decision.
    1. Carriers, § 189

      —what is liability for loss where railroad is not initial carrier of interstate shipments. In an action against a railroad to recover for damage to goods shipped, where the amount of the verdict included twenty-five separate freight shipments, held that as to all interstate shipments wherein the defendant was not the initial carrier, plaintiff was not entitled to recover.
    2. Carriers, § 162*—what is effect of failure to make claim for loss within time limited. A shipper of interstate shipments who fails to make claim for loss within the time specified in the contract of shipment cannot recover for such loss.
    3. Carriers, § 185*—when evidence insufficient to show waiver of notice of claim. In an action by a shipper of interstate shipments to recover for loss, where the contract of shipment required the filing of claims for damages within four months, and where plaintiff failed to give such notice, but claimed that the giving of notice was waived by the defendant, held that the burden of proof as to such notice was on plaintiff, and that the record failed to show a waiver by the defendant.
    4. Carriers, § 162*—when requirement in contract as to time for filing claims for damages is reasonable. In an action by a shipper of interstate shipments to recover for loss, where the contract of shipment required the filing of claims for damages within four months, held that the requirement as to the giving of notice within four months was reasonable.

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

   Mr. Justice Boggs

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Boggs

license: Public Domain

text:
    Henry V. Hill, Appellee, v. Joseph L. Trapp, Appellant.
    1. Abatement and revival, § 99

      —what is proper judgment upon overruling demurrer to plea in abatement to jurisdiction. Where, in an action on a note, one of the defendants pleaded in abatement to the jurisdiction of the court, alleging that he resided in a county other than that in which service was had and was not served in his own county, and plaintiff’s demurrer to the plea was overruled, whereupon plaintiff filed a replication without leave of court and the court denied a motion to strike such replication, but no trial was had on the issue made by the plea and replication, or judgment entered thereon, and defendant thereafter without leave of court filed a second plea in abatement, to which plea the plaintiff demurred and the demurrer was sustained, whereupon defendant pleaded to the merits and filed special pleas, and subsequently issues were joined and the case was tried, resulting in a finding for plaintiff, and defendant assigned as error the failure to enter judgment on the first plea in abatement, and the overruling of the motion to strike, held that it was the duty of the trial court after having overruled the demurrer to the plea in abatement to have entered a judgment quashing the writ, and its failure to do so was error.
    2. Appeal and error, § 1673*—when error in granting leave to reply after overruling of demurrer to plea in abatement is not waived. After a demurrer to a plea in abatement has been overruled, it is not regular for the court to grant leave to reply, as a judgment for the defendant on such a plea, whether the issue be one of fact or of law, is that the writ be quashed, and the error is not waived by anything subsequently done by the defendant.
    3. Escrows, § 19*—when evidence sufficient to show that note was to be held in escrow until release or surrender of a lease. Where; in an action on a note, it appeared that the note was given in settlement of the differences in a real estate exchange transaction; that after the execution of the contract a gas and oil lease was executed on the land of the payee in the note, and, on the refusal of the maker of the note to go on with the contract until such lease was released, the note in question, with the deeds and the mortgage securing the note, were placed in escrow pending a release of the lease; that pursuant to subsequent agreements, the deeds and the mortgage were recorded, and the note was still permitted to remain in escrow; that after maturity the note and mortgage were assigned to the plaintiff, but the note remained in escrow and was never delivered to plaintiff; that a release 6f said lease was obtained as to only part of the land in question, and there was controversy as to whether the payee was entitled to the possession of the note and as to whether he had the right to assign it, held that the manifest weight of the evidence was that at the time suit was brought the lease had not been released, and that under the agreement for exchange, the bank was to hold the note in escrow until the lease had' been released or surrendered.
    Appeal from the Circuit Court of Jefferson county; the Hon. Julius C. Kekjst, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 13, 1917.
    P. J. Kolb, M. J. White and Conrad Schul, for appellant.
    Curtis Williams and Robert M. Farthing, for appellee.

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

   Mr. Justice Boggs

delivered the opinion, of the court.

An action in assumpsit was brought in the Circuit Court of Jefferson county by appellee as indorsee of a promissory note against appellant, Joseph L. Trapp and Verona Trapp, his wife, as makers, and one H. L. Cline, as indorser of said note. Summons was issued to Jefferson county and served on Cline, and another summons to Wabash county which was served on appellant and his wife, Verona Trapp. Appellant filed a plea in abatement to the jurisdiction of the court, alleging that he resided in Wabash county and not in Jefferson county and was not served in Jefferson county; said plea ended with a verification and with a prayer for judgment. Appellee filed a demurrer to said plea which on hearing was overruled. Appellee thereupon without leave of court filed a replication to said plea. Appellant moved the court to strike the replication from the files, which motion was overruled by the court and exception was taken thereto by appellant.

No trial was had on the issue made by said plea-and replication and no judgment was entered thereon by the court. Appellant, thereafter, without leave of court so far as the record discloses, filed his second plea in abatement, to which plea appellee demurred and the court sustained the demurrer. Appellant then filed a plea of the general issue and four special pleas which were afterwards amended. Appellee replied to said amended special pleas and issues being joined, a trial was'had by court, by agreement, resulting in a judgment in favor of appellee. To reverse said judgment this appeal is prosecuted.

The first error assigned by appellant is the failure of the trial court to enter judgment on overruling the demurrer to the first plea in abatement and in overruling the motion to strike the replication to said plea from the files.

In the case of Cushman v. Savage, 20 Ill. 330, the defendant pleaded in abatement to the jurisdiction of the court and the plaintiff demurred to the plea: The court overruled the demurrer and granted plaintiff leave to plead. In discussing the ruling of the trial court the Supreme Court said: “This was erroneous. After a demurrer to a plea in abatement has been overruled, it is not regular for the court to grant leave to reply; for a judgment for the defendant, on such a plea, whether it be on an issue of fact or of law, is, that the writ be quashed.” Citing, Tidd’s Practice, 642; 1 Ch. Pl. 501; Motherell v. Beaver, 7 Ill. (2 Gilm.) 69; McKinstry v. Pennoyer, 2 Ill. (1 Scam.) 319; Eddy v. Brady, 16 Ill, 306. ‘‘The case will be- remanded to the Circuit Court of LaSalle, with instructions to abate the writ.”

In the later case of Spaulding v. Lowe, 58 Ill. 96, where a similar condition in the pleadings occurred, the Supreme Court says: “It was error for the Circuit Court to give leave to reply, after overruling a demurrer to a plea in abatement, and this court has several times held this error to be cause of reversal.” Citing, McKinstry v. Pennoyer, supra; Motherell v. Beaver, supra; Eddy v. Brady, supra. The court further said: “The error was not waived by anything subsequently done by defendants. The judgment must be reversed, the verdict set aside, and judgment quashing the writ entered nunc, pro tunc upon the demurrer.”

So far as we have been able to ascertain, the rule laid down in the cases above cited has not been overruled or modified. The same rules of pleading are laid down in Lawson’s Pleading, Practice and Forms, vol. 1, sec. 563; Shinn’s Pleading & Practice, vol. 1, see. 681.

Appellee in his brief and argument wholly ignores the foregoing assignment of error, on the assumption, we presume, that appellant, by pleading over to the merits, waived his right to assign error on the failure of the court to enter judgment quashing the writ after overruling the demurrer to appellant’s plea in abatement. It was the duty of the trial court in this case, after having overruled the demurrer to the plea in abatement, to have entered a judgment quashing the writ, and its failure to do so was error.

We are also of the opinion that on the merits this case should be reversed. The record discloses that appellant had traded certain residence property in Mount Vernon, Illinois to Cline for one hundred and sixty acres of land in Wabash county and that the note in question was given by appellant and his said wife in settlement of the difference in said transaction. The evidence is that on'the day said parties met to close said deal-it developed that subsequent to the making of the contract for the exchange of the above properties Cline had executed a gas and oil lease to one W. J. Rogers on the land he was conveying to appellant, and that appellant upon ascertaining said fact refused to proceed with the closing of said transaction. After some controversy in regard to the matter it'was agreed that the note in question with the deeds and the mortgage securing said note should be deposited with the First National Bank of Mount Carmel until Cline should obtain a release of said oil lease.

Some time thereafter appellant proposed to Cline that the deed and mortgage should be placed on record but that the note be left in the bank until said release was obtained. Cline finally consented to this upon condition that appellant would go his security for $600 he was borrowing from the First National Bank of Mount Carmel, to fall due in thirty days. The note in question being for something, over $1,200 was, at the request of Mr. Goddard, the president of said bank, indorsed by Cline in blank, and the following memorandum was signed by him and attached to said note: “Note of Joseph L. and Verona Trapp attached is left as collateral security for $600.00 note of H. L. Cline. Said Trapp note is to be also held by the First National Bank until the said oil lease given to W. J. Rogers is returned cancelled.”

The record discloses that as to eighty acres of the land the release was finally obtained. As to the remaining eighty no release was ever procured, and so far as the record discloses, is still outstanding, except it is insisted by appellee that the lease, expired by limitation. Even if that be true, the evidence is to the effect that the expiration of the life of said lease was subsequent to the bringing of said suit. The record further discloses that after the maturity of the note sued on, Cline assigned said note by the following written assignment to appellee: “May 6, 1914. For value received I hereby assign, set over and transfer to Henry V. Hill the within mortgage and the note which it secures.” The note. itself.remained in the bank and was never delivered to appellee either at the time of said assignment or at any time thereafter.

It is insisted by appellant for a reversal of said judgment, first, that the lease never having been canceled or surrendered, Cline, the payee in' said note, was not entitled to the possession or control of the same, and that appellee could obtain no greater right therein than the payee in said noté, as the attempted assignment was subsequent to the maturity thereof; and, second, that the written assignment not being attached to said note would not have the effect of passing, the legal title thereto. On the other hand, appellee contends that after said note had been placed in said bank in escrow that appellant agreed if he would release said mortgage securing the note in question and allow appellant to place a mortgage of $4,000 on said premises, that he, appellant, would pay the note here sued on, and that, therefore, he was entitled to the possession of the note and had the right to assign it to appellee.

The case was tried without a jury and the court by its rulings on the propositions of law submitted to it held, in effect, that the legal title to said note was in Cline, and that it passed to appellee by virtue of said assignment. While we recognize that the findings of the trial court on controverted questions of fact, where a jury has been waived, are entitled to the same weight that, is given .to the findings of a jury, at the same time, we think the manifest weight of the evidence in this case is to the effect that the note here sued on was to b„e held by the First National Bank of Mount Carmel until the oil and gas lease in question had been released, and that at the time this suit was instituted said lease was still outstanding.

It is also contended by appellant that he was entitled to a return of the note in question if the lease was not released or surrendered within a certain time. We are not attempting to pass on this controverted question of fact. The only question that we are here deciding is that the manifest weight of the evidence is to the effect that at the time suit was brought the lease in question had not been released and that, under the agreement of Cline and appellant, the bank was to hold said note in escrow until said lease had been so released or- surrendered.

For the errors above set forth the judgment of the trial court will be reversed and remanded, so far as appellant’s rights are concerned.

Reversed and remanded.


text:
    Reinhardt Fischer, Appellee, v. Pearl Abernathy et al., Appellants.
    1. Vendor and purchaser, § 274

      —when decree awarding lien in favor of vendor to he discharged out of purchase price due vendee from contract purchaser is proper. In proceedings for a vendor’s lien, where certain premises were sold subject to a mortgage, the equity to be paid for partly in cash and the balance in monthly payments and the property to stand as security for the deferred payments, and the grantee, who was in fact acting for a third party, made a contract with the defendants for the purchase of the premises and defendants thereafter made, payments to such third party, who was also a party defendant but did not appeal, and it appeared that the defendants still owed on the purchase price a sum in excess of that due complainant, and a lien was decreed against the premises in favor of complainant, to be discharged out of the balance of the purchase price still due, held that defendants were not injured by the decree awarding a lien, even though they purchased without knowledge of the lien of complainant; and as defendants were relieved by the decree from making payment to said third party, who was bound as a party to the proceeding, of whatever amount they were compelled to pay under the decree, the decree should be affirmed.
    2. Vendor and purchaser, § 248*—what is nature of vendor’s lien. A vendor’s lien does not arise by virtue of a contract, but is a lien recognized in equity and arises in cases where the owner of land conveys the same by deed, thus devesting himself of the title, leaving all or part of the purchase money unpaid, and in such cases the grantor retains in equity a lien for such unpaid purchase money.
    3. Vendor and purchaser, § 255

      —when innocent purchaser without notice takes land free from vendor's lien. Where a vendee has purchased premises without having paid the purchase price, and where in equity the vendor would have a vendor’s lien, if the vendee should convey the premises to an innocent purchaser for value, and the consideration be fully paid by such purchaser without notice, the latter would take the premises free of the lien.
    Appeal from the City Court of East St. Louis; the Hon. H. L. Browning, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    N. W. Parlen, for appellants.
    Silas Cook, 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 Boggs

delivered the opinion of the court.

Appellee, being the owner of Lot 4 of Paul Abt’s Subdivision of Lots 1 to 9 inclusive, in Block 21 of Claremont Addition to the City of East St. Louis, conveyed the same, subject to a mortgage of $1,000, to one Fronza I. Stewart by warranty deed dated on or about February 1, 1915. The consideration for said conveyance, subject to said mortgage, was $600, payable $30 cash, and $10 per month until the full amount of the consideration had been paid. The notes of the said Fronza.I. Stewart were given for said deferred payments.

The evidence discloses that thereafter, on the first day of May, 1915, the said Fronza I. Stewart, being an unmarried woman, conveyed said premises subject to said mortgage by warranty deed to appellants Nora V. Pitts and Baalam Pitts. Thereafter, said grantees borrowed from one Henry T. Benshaw the sum of $1,100 on said premises and paid off the mortgage for $1,000.

The evidence also discloses that after payment of the first five instalments • of $10 each, to be paid by Fronza I. Stewart to appellee, no further payments were made and a bill was filed by appellee in the City Court of East St. Louis for a vendor’s lien on said premises for the unpaid balance owing on said deferred payments. To this bill Pearl Abernathy, Fronza I. Stewart and Henry T. Benshaw, trustee, were made parties defendant, as well as appellants Nora V. Pitts and Baalam Pitts. The bill charges that the sale made by appellee was in fact made to Pearl Abernathy and that appellee did not know Fronza I. Stewart in the transaction; that the cash payment of $30 and the five payments on the deferred instalments were all made by Abernathy, and that Fronza I. Stewart merely held the title for his, Abernathy’s, benefit.

The bill further charges that Abernathy sold said premises to appellants, and caused the conveyance to be made by Fronza I.' Stewart; prays for an accounting and that whatever sum shall appear to be due appellee, together with costs of said proceeding, be made a lien on said premises, and that in default of payment by appellants, said premises be sold to satisfy the balance owing to appellee.

Answers were filed by appellants alone, and the other defendants being defaulted, said cause was referred to the master to take the evidence and report the same together with his conclusions of law and fact. The master made his report finding that, at the time of the conveyance-' from appellee to Fronza I. Stewart, it was agreed between appellee and the said Abernathy that the premises conveyed should stand as security for the deferred payments, and also finding that the conveyance from Fronza I. Stewart to appellants Nora V. Pitts and Baalam Pitts was made on behalf of Abernathy, and that there was yet remaining due from appellants on the purchase price of said premises the sum of $630. The master further found that there was due to appellee on the purchase price of the premises conveyed by him to Fronza I. Stewart the sum of $550, and recommended that a vendor’s lien be decreed against said premises to be satisfied by payment to appellee of the sum of $550 out of the balance of $630 owing by appellants on the purchase price of said premises.

The record further discloses that at the time of the conveyance by Fronza I. Stewart to appellants Nora V. Pitts and Baalam Pitts that a contract was entered into between Abernathy and said appellants, in which contract Abernathy was styled agent for Fronza I. Stewart. Said contract provided that appellants should pay. the sum of $2,250 for said premises, $340 cash in hand and “$18.00 on the 15th day of July 1915, and a like sum on the 15th day of each and every month thereafter until all has been. well and truly paid.’.’ No objection was made by appellants to the finding of the master that there was $630 due from them on said purchase price at the time of making of said report.

The evidence further discloses that the $3.40 cash payment was made by appellants to said Abernathy at the time said contract was executed and that something like four or five of the $18 payments had been made to him. The payments to appellee, being in default, he notified appellants to make no further payments to Abernathy, and the evidence discloses that no further payments were made thereafter. The court approved the report of the master, except as to the finding that it was agreed at the time that appellee sold said premises he should have a vendor’s lien thereon. A decree was entered finding that there was a balance of $520 owing to appellee on the premises conveyed by him to Fronza I. Stewart, and that there was $630 owing by appellants on the contract entered into by them with Abernathy, and decreeing a lien against said premises in favor of appellee to be discharged by appellants out of the balance of $630 owing by them on the contract with Abernathy. From this decree appellants Nora V. Pitts and Baalam Pitts prosecute this appeal.

Appellants assign as error the decree establishing a lien for $520 in favor of appellee to be satisfied out of the balance of $630 owing by appellants on the contract made with Abernathy. So far as the record discloses, the deferred payments owing by appellants were evidenced only by the contract entered into between them and Abernathy as agent- for Fronza I. Stewart. Said contract is still held by Abernathy, and as no notes were executed in connection therewith, appellants are in nowise injured by said decree, as they make no question as to the finding that they still owe the sum of $630 on the purchase price of said premises, being an amount in excess of the lien established in favor of appellee. If the law warrants alien of this character, we see no reason why the decree of the trial court should not be affirmed.

A vendor’s lien does not arise by virtue of a contract, but is a lien recognized in equity and arises in cases where the owner of land conveys the same by deed, thus devesting himself of the legal title, and where some part or all of the purchase price remains unpaid. In such case the grantor retains, in equity, a lien for the unpaid purchase money. Robinson v. Appleton, 124 Ill. 276; Croft v. Perkins, 174 Ill. 637.

Appellants, as we understand, do not question this principle of law, nor its applicability to cases where the question arises as between the vendor and the vendee, but insist that they are innocent purchasers of appellee’s vendee without notice, and that therefore these cases do not apply. It is unquestionably the law that where a vendee has purchased premises ■without having paid the purchase price therefor, and where in equity the vendor of said premises would have a vendor’s lien, if said vendee should convey said premises to an innocent purchaser for value, and the consideration therefor be fully paid by such purchaser without notice of the vendor’s lien, he would take said premises free of said lien. Lewis v. Shearer, 189 Ill. 189; Moshier v. Meek, 80 Ill. 81.

The question here is, whether notwithstanding appellants may have purchased the premises in question and received a conveyance therefor without knowledge that a part of the consideration thereof was still owing to appellee, from their grantor, but the knowledge of which come to them before they have fully paid the consideration for the conveyance to them, the court may decree a lien to be paid out of said balance so owing by them. We think, under the holding of the Supreme Court in the case of Baldwin v. Sager, 70 Ill. 503, that a court of equity has the power to decree a lien in favor of appellee, the vendor of appellants’ grantor, for the unpaid consideration to the extent that appellants still owe on the consideration to be paid by them. In other words, as the record discloses that appellants owe the sum of $630 on the contract made by them with Abernathy, the court was correct in decreeing a lien against said premises for the amount of $520 found to be owing appellee, to be satisfied out of said balance so owing by appellants, together with the costs, as decreed by the trial court.

In the case of Baldwin v. Sager, supra, the court at page 505 in commenting on the case of Brown v. Welch, 18 Ill. 343, and Moshier v. Knox College, 32 Ill. 155, says: “In the former of these cases, it was said that a subsequent purchaser must have received a deed and paid the purchase money before he receives notice, to be entitled to protection as a bona fide purchaser. * * * In such a case, there can be no question as to the rule contended for, as, to postpone such a purchaser to a prior equity could not injure him in the slightest degree. The prior equity in such a case can be enforced without doing any wrong to the subsequent purchaser, as, if he removed the incumbrance, he may set up the amount paid against the payment of so much of the purchase money, or he may rescind the contract and avoid the payment.”

In this case, whatever amount appellants are compelled to pay under the decree of the trial court to appellee they are relieved from paying to Abernathy, as he was a party to this proceeding and was- bound by the decree of the trial court, from which he did not appeal. Inasmuch as the decree establishing a lien in favor of appellee provided that it should be satisfied out of the $630 owing by appellants, they cannot be injured, and as no one else is complaining said decree should be affirmed.

Decree affirmed.


text:
    John Meier, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 430

      —when question of contributory negligence immaterial except as bearing upon amount of damages. In an action for personal injuries by a .flagman against a railroad, where there were two counts to the declaration, the second jof which alleged that the defendant was engaged in interstate commerce and that plaintiff was employed in such commerce, and where it appeared that plaintiff was injured by being struck by a train which was being operated on a track upon which plaintiff was walking, and defendant contended that plaintiff was guilty of contributory negligence and therefore not entitled to recover, held that as plaintiff could recover only under the second count, if at all, the Federal Employers’ Liability Act applied, and therefore even if plaintiff had been guilty of contributory negligence, such fact would only be material as affecting the amount of damages.

      Appeal from the Circuit Court of Madison county; the Hon, J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by John Meier, plaintiff, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, defendant, to recover damages for personal injuries, sustained as a result of being struck by one of defendant’s trains, while employed as a flagman of trains running over tracks under repair. From a judgment for plaintiff'■ for $2,000, defendant appeals.
    D. E. Keefe, for appellant; L. J. Hackney and Frank L. Littleton, of counsel.
    Burton & Burton, 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 Boggs

delivered the opinion of the court..

2. Master and servant, § 98*—what proof must be made as to negligence in action under Federal Employers’ Liability Act. In an action for damages for personal injuries brought under the Federal Employers’ Liability Act, section 3 of which provides that contributory negligence shall not bar recovery, but shall diminish the damages in proportion to the amount of negligence attributable to the employee, it is only necessary to prove that the injury was the result, in whole or in part, of negligence on the part of the employer.

3. Master and servant, § 98*—when federal law governs. Where both master and servant are engaged in interstate commerce at the time of an injury to the servant, the rights and liabilities of the parties are to be governed exclusively by the Federal Employers’ Liability Act.

4. Master and servant, § 695*—when evidence sufficient to show that timely toarning of approach of train was not given. In an action under the Federal Employers’ Liability Act by a flagman to recover for personal injuries, received as the result of being struck by a train, evidence held sufficient to show that timely warning of the approach of. the train was not given.

5. Appeal and error, § 1413*—when verdict should not ordinarily be set aside. Where two juries have found the issues the same way on conflicting evidence, the trial or Appellate Courts should he slow to set aside the verdict of the jury.

6. Master and servant, § 98*—what must be proved in action wider Federal Employers’ Liability Act. In order to sustain an action to recover under the Federal Employers’ Liability Act, it is necessary for the plaintiff to prove that he was employed by the defendant.

7. Appeal and error, § 1523 —when instruction is not prejudicially erroneous. In a personal injury case based on the Federal Employers’ Liability Act, held that the giving of an instruction which was based on section 1 of the Act, which was abstract in form and did not set out the whole section, was not prejudicial error.


author: Mr. Justice Higbee

text:
    Benjamin F. Borrow, Plaintiff in Error, v. Chicago, Burlington & Quincy Railroad Company, Defendant in Error.
    1. Master and servant, § 98

      —when actions must be brought under Federal Employers’ Liability Act. The Federal Employers’ Liability Act has superseded the State statute wherever applicable, and all actions thereunder must be brought within two years from the date of the injury.
    2. Master and servant, § 532*—what constitutes new cause of action. In a personal injury case, where the original declaration contained two counts alleging that the injury was caused by a fellow-servant, and the only difference in the counts was that one alleged that the defendant had elected not to provide and pay compensation under the Workmen’s Compensation Act and the other set forth such election, and both counts alleged that plaintiff was not engaged in interstate commerce at the time of the injury, and more than two years after the accident said two counts were withdrawn and two new counts were filed which were the same as the original except that they alleged that plaintiff was engaged in interstate commerce at the time of the injury, and defendant pleaded the statute of limitations, held that the declaration filed after the expiration of two years from the time the injury occurred stated a new cause of action, warranting the overruling of plaintiff’s demurrer to the plea of the statute of limitations.
    3. Master and servant, § 98*—what must be averred and proved to bring case within Federal Employers’ Liability Act. In order to bring a case under the Federal Employers’ Liability Act, it is as necessary to allege and prove that the carrier is engaged in interstate commerce and that the person injured was engaged in such commerce as it is necessary to allege and prove any facts connected with the injury itself.
    Error to the Circuit Court of Bond county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    C. J. Lindly and Charles E. Davidson, for plaintiff in error.
    C. E. Hoiles and Albert & Albert, for defendant in error; J. A. Connell, of counsel.

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

   Mr. Justice Higbee

delivered the opinion of the court.

. This is an action on the case brought by plaintiff in error, Benjamin F. Borrow, to recover damages for an injury sustained by him on the loth day of February, 1913, while employed by defendant in error, Chicago, Burlington & Quincy Railroad Company. The original declaration was filed on December 26, 1914, and contained two counts. They charged that the injury was caused by the negligence of a fellow-servant. The only difference in the counts was that one alleged defendant in error had elected not to provide and pay compensation to its employees under the State Employees’ Compensation Act ánd the other count set forth such election in hcec verba. In both counts it is alleged that plaintiff in error was not engaged in interstate commerce at the time of the injury. To these counts the plea of general issue was filed. At the March term, 1915, of the Bond county Circuit Court a trial was had resulting in a verdict for plaintiff in error and assessing his damages at $1,500. At the September term, 1915, this verdict was set aside and a new trial granted. At the January term, 1916, plaintiff in error by leave of court, withdrew the two. original counts and filed two new or additional counts. These new or additional counts were the same as the original ones, except they both alleged that plaintiff in error was engaged in interstate commerce at the time of the injury. To these counts defendant in. error pleaded the statute of limitations. The court overruled plaintiff in error’s demurrer to these pleas, and he elected to abide his demurrer and has brought the cause to this court by writ of error.

As said by counsel for plaintiff in error in his statement: ‘ ‘ The original suit was brought under the State statute and common-law count of master and servant and not under the Federal Employers’ Liability Act. The last two counts are under the federal statute. They were filed January, 1916, more than two years after the accident occurred.” The question is, did the amended declaration or additional counts state a different cause of action from that stated in the original declaration or counts? It is well settled, and it is not controverted here, that the Federal Employers’ Liability Act has superseded the.State statute wherever applicable, and that all actions thereunder must be brought within two years from the date of the injury.

By the terms of the federal statute it is applicable in such a case as this, only when the railroad is engaged in interstate commerce and when the person injured suffers injury “while he is employed by such carrier in such commerce.” That the carrier is engaged in interstate commerce and that the person injured was engaged in such commerce are as necessary to be alleged and proved as any facts connected with the injury itself, in order to bring a case under the federal statute. They are a part of the cause of action necessary for the plaintiff to allege and prove to entitle him to recover under that statute. Neither one of these facts was alleged by plaintiff in error in his original declaration or counts, but in both such counts he expressly alleged that he was not engaged in interstate commerce at the time of the injury. He expressly stated the very conditions which would prevent a recovery under the federal statute. His original declaration or counts stated a cause of action for which he could recover only under the State statute. To recover under his additional counts or amended declaration, plaintiff in error would be required to prove a different state of facts from those required of him under his original counts or declaration. Again, the same defenses are not available to defendant in error under the facts alleged in the amended declaration as would have been available to him under the facts stated in the original declaration. Not only must different proof be made to sustain the additional counts from that required to support the original counts, but matters which the defendant in error might prove as defense to the one would not be a defense to the other.

Plaintiff in error, in his briefs relies to a large extent upon the case of Missouri, K. & T. R. Co. v. Wulf, 226 U. S. 570, as sustaining his position in this matter. It is to be observed, however, that the original petition in that case alleged that the railroad was operating between two States, while the original counts of the declaration in this case stated positively that the plaintiff in error was, at the time of the injury, not engaged in interstate commerce. The difference in the original pleadings in the two cases is therefore very marked. In the Wulf case, supra, the subsequent pleadings did not contain statements changing the allegations as to the business carried on by the railroad company, as in all pleadings it was treated as being engaged in interstate commerce, while in the case at bar, the business which was carried on by the railroad company was changed by the subsequent pleadings from intrastate to interstate commerce, to which different rules of law concerning the obligation of railroad companies to their employees apply. Since this case has been taken on call, counsel for appellant have submitted to us the case of Curtice v. Chicago & N. W. Ry. Co., 162 Wis. 421, 156 N. W. 484. This case is in many respects similar to the one we have under consideration. The suit was brought to recover for personal injuries and the original complaint alleged, among other things, that the defendant was a railway corporation organized under the laws of the State of Wisconsin; that at all the times mentioned in the complaint, defendant “owned and operated a line of railway in and through said State and between the Cities of Marinette and Green Bay, Wisconsin,” and setting forth the manner in which the injuries complained of occurred. The defendant, by his answer, set up facts showing that at the time of the injury plaintiff and defendant were engaged in interstate commerce and that the cause of action, if any, existed under the federal law and not under the laws of the State of Wisconsin. Subsequently, more than two years after the injury was alleged to have occurred, the plaintiff was allowed to amend his complaint by alleging facts showing that plaintiff and defendant were at the time of the injury engaged in interstate commerce. The court below sustained a demurrer to the amended complaint on the ground that the amendment set up a new cause of action which was barred by the Two-Year Statute of Limitations, but the Supreme Court of Wisconsin, by a divided court, reversed and remanded the cause. Mr. Justice Kerwin, who delivered the majority opinion, uses the following language: “The point involved upon this appeal, under the assignments of error, is whether the amended complaint set up a different cause of action than that stated in the original complaint. The contention of the appellant is that there is but one cause of action, and that under the federal act, while on the part of the respondent it is insisted that the original complaint set up a cause of action under the State law, and that the amendment changed it from a cause of action under the State law to one under the federal act. It is obvious that but one cause of action existed upon all the facts stated in the amended complaint. It is equally obvious that the original complaint was defective in failing to state certain facts going to show that at the time the injury was sustained, the parties were engaged in interstate commerce. Nothing stated in the amended complaint was in conflict or inconsistent with the allegations of the original complaint. The cause of action upon which the plaintiff sought to recover damages was defectively stated in the original complaint and the defects were cured by the amendment. * * There is another feature of this case which is worthy of notice. When the defendant answered the original complaint it set up the facts which were omitted in the plaintiff’s defective complaint and necessary to perfect the cause of action under the federal act, and which were afterwards set up by plaintiff in the amendment complained of. The defendant was therefore in no way surprised or prejudiced by the amendment. Doubtless the case could have gone to trial on the pleadings as originally framed and the complaint on the trial amended, or treated as amended, in accordance with the issues made by the pleadings as originally framed. * * * We are convinced that the amendment did not introduce a new cause of action, but cured the defective cause of action originally pleaded, hence the amendment was proper.”

We have quoted thus freely from the opinion filed in this case because the question raised is so similar to the one presented here, and for the further reason that the case is evidently relied on by counsel for appellant as decisive of the question presented to us. A close inspection of the opinion in that case, however, will demonstrate that the pleadings there were so dissimilar to the pleadings in this case that the decision based upon the former cannot be considered as controlling the question we have to decide. It is to be observed that in that case the answer of the defendant to the original complaint set up the fact that both plaintiff and defendant were at the time of the injury engaged in interstate commerce, and the court, in referring to that fact, states that the answer set up the facts which were necessary to perfect the cause of action under the federal act; also that the case could doubtless have gone to trial on the pleadings as originally framed and the complaint treated as amended in accordance with the issues made by such pleadings. In the case at bar, however, no such condition existed, as there was nothing in the original pleadings to indicate that plaintiff in error and defendant in error were or that either of them was engaged in interstate commerce. It is further said in that opinion that there was nothing stated in the amended complaint which was in conflict or inconsistent with the allegations of the original complaint. In this case the original counts of the declaration both stated directly that plaintiff in error was not at the time of the injury engaged in interstate commerce, while the new counts alleged with equal directness that plaintiff in error was engaged in interstate commerce at the time of the injury. There were no defects in the original counts which were cured by the statements made in the amended counts, but the two statements were diametrically opposed to each other, and based their respective rights of action upon different facts, and also upon different laws to be applied to those facts.

We conclude from our consideration of this case that the declaration, filed after the expiration of two years from the time the injury occurred, stated a new cause of action and that the trial court did not err in overruling the demurrer of plaintiff in error to the plea of the statute of limitations. The judgment is accordingly affirmed.

Affirmed.


text:
    Miles F. Bixler, trading as Miles F. Bixler Company, Appellant, v. W. S. Brim, Appellee.
    1. Sales, § 329

      —when evidence sufflcent to show that articles purchased did not correspond with sample and were inferior thereto. In an action to recover for a lot of jewelry which had been sold to defendant by a salesman of plaintiff, which was set forth in a printed inventory, and where the prospective purchaser was required to take the whole list of articles named in the inventory, if he took any, and the order was forwarded to and accepted by plaintiff, and, upon the jewelry being received by defendant, he opened the package, examined the contents and then repacked and shipped the goods back to plaintiff, who refused^ to receive them, and defendant produced testimony to show that the jewelry sent to him did not correspond with the samples shown him by the salesman, but was inferior thereto, and the salesman was not called as a witness, the evidence being uncontroverted, except by proof that the salesman was furnished with samples selected indiscriminately from plaintiff’s stock, held that the jury could not reasonably do otherwise than sustain the claim of defendant.
    2. Sales, § 326*—when parol evidence is admissible to explain written order. In an action to recover for a lot of jewelry which had been sold to the defendant by a salesman of the plaintiff, where there was a printed contract, and defendant produced testimony that the jewelry sent him did not correspond with the samples shown him by the salesman and was inferior thereto, and plaintiff contended that it- was error to admit the testimony as to what occurred when the order was given, as thus a written contract was attempted to be altered by parol, held that as the contract in question did not describe the articles purchased with sufficient clearness so that the purchaser could know what he was to receive in the absence of the samples, such evidence was properly admitted as only tending to make the written order clear.
    3. Evidence, § 338*—when extrinsic proof is admissible to identify subject-matter of' contract. Extrinsic proof is always competent to identify the subject-matter of a contract, if necessary, and to admit it, in no way violates t^ie rule that parol testimony is never admissible to contradict or vary the terms of a written contract.
    4. Costs, § 4*—when discretion of court not abused. Where in a case before a justice of the peace there was a judgment in favor of the defendant on his set-off for $1.20, and on appeal the judgment was again in favor of the defendant but no set-off was allowed, and plaintiff contended that it was therefore error to tax all costs against him, held that such matter was largely discretionary, and, considering the smallness of the set-off, there was no abuse of that discretion.
    Appeal from the Circuit Court of Williamson county; the Hon. W. O, Potter, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    R. E. Neuhlist, for appellant.
    Neely, Gallimore, Cook & Potter, 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.

On October 24, 1913, appellee, a merchant engaged in general retail business at Creal Springs, Illinois, gave an order to C. J. Aeree, a salesman of Miles F. Bixler, engaged in the wholesale jewelry business at Cleveland, Ohio, under the name of Miles F. Bixler Company, for an assorted lot of jewelry and a show case. The articles of jewelry were set forth in a printed inventory, which was on the same sheet of paper with and a part of the contract which was also printed. The order called for what is designated by appellant in his brief as “one full department of jewelry and one show case” and the only departure from the printed list was in regard to the show case, which an interlineation in writing indicated was to have a plate glass top. It was signed by appellee and the bill amounted to $200. The method adopted by appellant in making sales seems to have required the prospective purchaser to take the whole list of articles named in the printed inventory if he took any of them. The salesman forwarded the order to appellant who accepted the same October 27, 1913, and on the same day wrote appellee inclosing him a copy thereof. A few days later appellant shipped the jewelry by express and the show case by freight, as provided for in the contract, and they arrived at Creal Springs in due season. When appellee received the jewelry, which was about November 2, 1913, he opened the package, ¿xamined the contents and then repacked the same and shipped the goods back to appellant, who refused to. receive them. When the show case, shipped by freight, arrived at its destination, appellee also refused to receive it. Appellee claimed that the goods he contracted for were to correspond with samples shown him by the salesman and that they wholly failed to do so and, in returning them, he wrote to appellant giving that reason for his refusal to accept them. There was some correspondence between the parties and on May 6, 1914, appellant brought suit against appellee before a justice of the peace of Williamson county to recover the contract price.

Appellee filed a set-off for a small amount paid by him for express charges and drayage. The trial before the justice resulted in a judgment in favor of appellee for $1.20, the amount of his set-off. In the Circuit Court/to which the case was appealed, the jury found in favor of appellee, so far as appellant’s bill was concerned, but did not allow him his set-off, and judgment was entered against appellant for the costs before the justice of the peace and in the Circuit Court. The order signed by appellee contained this provision: ‘ Salesman has no authority to change or add to these terms, except in writing on original order, which is subject to our acceptance. Not subject to countermand. Delivery to carrier is delivery to purchaser who pays charges. Jewelry shipped by express, show cases by freight.” Upon the trial appellee and his brother, who was a salesman in his store, testified that the purchase of the jewelry was made from samples exhibited to them by Mr. Aeree, the salesman. In a letter written by appellant to appellee, after the controversy between them arose, on November 14, 1913, appellant said: “If the goods did not appear entirely satisfactory to you, you had no right to sign the order. The goods were sold you from samples displayed by the salesman. If you did not like their quality, design or pattern that was the time to decide.” In another letter written appellee November 8, 1913, appellant said: “The goods shipped you are exactly according to sample. Our salesman’s samples are selected from our regular stock and are exactly like our stock in style, design and quality.” Appellee and his brother further swore that the jewelry sent appellee failed to correspond with the samples and was inferior thereto. These witnesses went into details in explaining the inferiority of the goods shipped appellee to the samples shown them by the salesman. Mr. Aeree, the salesman, was not called as a witness and the testimony of appellee and his brother was uncontroverted, except by proof offered on the part of appellant that his salesman was furnished with samples selected indiscriminately from his stock.

In this state of the proofs the jury could not reasonably do otherwise than sustain the claim of the appellee as to the facts. It is contended, however, by appellant that appellee was bound by his contract and that the testimony of appellee and his brother as to what took place when the order was given was inadmissible. It is true, as claimed by appellee, that in the absence of fraud or mistake, parol or extrinsic evidence is not admissible to vary, add to, modify or contradict the terms or provisions of a written contract by showing the intentions of the parties or their real agreement to have been different from that expressed in the writing. (Ellis v. Conrad Seipp Brewing Co., 207 Ill. 291.) It is also true that where parties have deliberately put their engagements in writing in such terms as import a legal obligation, without any uncertainly as to the object or extent of their engagements, all previous negotiations and agreements with reference to the subject-matter are presumed to have been merged in the written contract, and where the contract is clear and unambiguous, parol evidence is hot admissible to explain or determine the construction of the writing. (17 Cyc. 596, and cases cited.) But the parol evidence admitted in this case, showing that the goods sent appellee did not correspond with the samples exhibited by the salesman, did not in the least tend to vary or change the terms of the written órder or contract. While the order enumerated the different articles purchased, it did not describe them with such clearness or certainty that the purchaser could know what he was to receive in the absence of the sample shown him by the salesman. For instance, among the articles enumerated in the order were: “Emblem Pins,” “Emblem Buttons” and “Emblem Charms.” These items of themselves would convey little idea of the exact articles purchased, but the parol proof showed that the salesman exhibited to appellee in that connection samples of certain emblematic pins, buttons and charms worn by members of several secret organizations which have a large membership and that the “Emblems” shipped to appellee did not correspond with the samples and did not include the emblem of any order whatever.

In Wilson v. Roots, 119 Ill. 379, our Supreme Court said: “Although it is not competent to contradict or enlarge the terms of a written agreement by parol evidence, it is competent to resort to parol evidence to ascertain the nature and qualities of the subject to which the instrument refers.” And in Bulkley v. Devine, 127 Ill. 406, the court laid down the rule that: “Extrinsic proof is always competent to identify' the subject-matter of a contract, if necessary, and to admit it, in no’way violates the rule that parol testimony is never admissible to contradict or vary the termg of a written contract;”

We conclude that the trial court did not err in admitting the parol evidence in regard to the samples and that such evidence only tended to make the written order clear. The written order and the parol evidence as to the samples were both necessary to show the real contract between the parties. Under the proofs it appears appellee had a right to rescind the contract and return the goods as he did. It is further contended by appellant that the trial court erred in giving judgment against him for all the costs in that court for the reason that the justice of the peace gave judgment against appellant for appellee’s set-off alone, while in the Circuit Court the claim of set-off on the part of appellee- was not allowed. This matter was largely in the discretion of the court, and it does not appear to us that, considering the small amount of the set-off, there has been any abuse of that discretion.

The judgment in this case will be affirmed.

Affirmed.


text:
    C. N. Tedrick, Plaintiff in Error, v. Vandalia Mutual County Fire Insurance Company, Defendant in Error.
    1. Insurance, § 164

      —when question of reasonableness of assessment is for jury. In an action against a mutual life insurance company to recover for fire loss, where the defense was that plaintiff was in default in the payment of an assessment at the time of the fire, and where plaintiff claimed that the assessment was illegal on the ground of being excessive, held that the question as to whether the amount of the assessment was reasonable was one of fact for the jury.
    2. Insurance, § 163*—when determination of amount of assessment by mutual fire insurance company is mthin discretion of

      directors. In an action against a mutual fire insurance company to recover for fire loss, where the defense was.that plaintiff was in default in the payment of an assessment at the time of the fire, and plaintiff claimed that the assessment was void on the ground of being excessive, section 12 of the Act in reference to county fire insurance companies (J. & A. If 6348), providing for the making of assessments^ considered, and held that the directors might exercise a°reasónable discretion in determining the amount necessary to be raised.
    3. Insurance, § 166

      —when evidence sufficient to show fire insurance assessment is reasonable. In an action against a mutual fire insurance company to recover for a fire loss, evidence held sufficient to show that an assessment, which it was claimed plaintiff had not paid, was reasonable.
    4. Insurance—what is nature and purpose of mutual fire insurance company assessment to pay loss. In an action against a mutual fire insurance company to recover for fire loss, where the defense was that plaintiff was in default in the payment of an assessment at the time of the fire, and plaintiff claimed that the assessment was void for the reason that the assessment was simply a call for the payment of a part of the premium note given by plaintiff, and was not an assessment upon all property to the amount for which the several pieces of property were insured, taken in connection with the rate of premium under which it might be classified, section 13 of the Act in reference to county fire insurance (J. & A. 1f 6349) providing that every member of the insurance company shall be notified of the sum due from him, and Section 14 (J. & A. 1f 6350) authorizing the bringing of an action in case of failure to pay, and section 9 (J. & A. If 6345) allowing the company to classify the property insured under different rates according to the hazard of the risk, considered, and held that the plaintiff’s contention was untenable, as it was evident from the statute that the assessment was not intended to be in rem or a lien on or collectible out of the insured property, but only as a personal liability of the policy holder.
    5. Insurance, § 162*—what is effect of failure to make payment of mutual fire insurance assessment in time. Where a member of a mutual fire insurance company fails to make payment oí an assessment within the time prescribed, if the action of the directors in making the assessment was authorized by law, such member cannot recover for any loss sustained by him.
    6. Insurance—when mutual fire insurance assessment is void. Where the managers of a'mutual fire insurance company in the making of an assessment go beyond all reasonable limits and make such assessment largely in excess of the amount required to pay the loss, the assessment will be void and may be disregarded by the members.
    7. Insurance—when mutual fire insurance assessment is in compliance with law. In an action against a mutual fire insurance company to recover for loss, where the defendant refused payment on the ground that an assessment had not been paid by plaintiff, and plaintiff contended that the assessment was not made according to the statute, and where it appeared that the premium note in the policy in question and in all others issued by the company was determined by the amount for which the particular property was insured, taken in connection with the rate of premium under which it was classified, heló, that such assessment was in compliance with the statute.
    Error to the Circuit Court of Fayette county; the Hon. James C. McBride, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Albert & Albert, for plaintiff in error.
    Brown & Burnside, for defendant in error.

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

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

   Mr. Justice Higbee

delivered the opinion of the court.

Defendant in error, the Vandalia Mutual County Fire Insurance Company, is organized under “An Act to Organize and Regulate County Fire Insurance Companies,” in force July 1, 1877 (J. & A. ¶ 6377 et seq.). On November 8, 1912, it insured plaintiff in error’s house, barn and other property against loss or damage by fire or lightning in the sum of $1,120, for a period of five years. At the time the policy was issued plaintiff in error executed to the company his premium note for $22.40 payable, “In such portions and at such times as the directors of said company may, agreeably to their Act of Incorporation, require.” The policy provides: “In case the assured fails to pay his assessments by the time specified, then this policy shall cease to he in force and remains null and void during the time such assessment remains due and unpaid.” August 21, 1914, a barn and some hay covered by the policy were destroyed by fire. Proof of the loss was made but the company refused 'to pay and suit was brought on the policy.

The defense relied upon was that before the fire the directors had made an assessment which became due August 15, 1914, and that, though plaintiff in error had been notified of this assessment, he had failed to pay it, and in consequence the policy had ceased to be in force and was null and void at the time of the fire. Plaintiff in error claims the assessment had been illegally made and was void, and that therefore he was not bound to pay it. The ease was tried in the Circuit Court of Fayette county before a jury and a verdict was returned finding the issues for the defendant. After overruling a motion for a new trial, the court entered judgment on the verdict and against plaintiff for costs and the case comes to this court on writ of error. Plaintiff in error assigns as reasons why the assessment was illegal that it was not made in the manner required by statute and was excessive.

As plaintiff in error failed to make payment of the assessment within the time prescribed, then, if the action of the directors in making the assessment was authorized by law, it is clear he could not recover. Farmers’ Mut. Fire Ins. Co. of Palmyra v. Knight, 162. Ill. 470. We will first consider the question whether the assessment was excessive. Section 12 of the Act in reference to county fire insurance companies above mentioned provides (J. & A. ¶ 6348):

“Whenever the amount of any loss shall have been ascertained which exceeds in amount the cash funds of the company, the president shall have the power to borrow money not to exceed one-tenth of one per cent of all the property insured with which to pay said loss, and when the amount of said loss shall exceed one-tenth of one per cent of all property insured, the president shall convene the directors of said company, who shall make an assessment upon all property to the amount for which the several pieces of property is insured, taken in connection with the rate of premium under which it may be classified: Provided, that if no quorum be present the secretary shall enter the fact upon his journal and the names of the directors present, whereupon the president, secretary and treasurer shall proceed to estimate the rate per cent necessary to cover the loss and expense thereby incurred, and assess the same upon all insured property of the several members of said company, which assessment shall be valid, and shall be collected in the same way as though it had been made by the board of directors: Provided, that at the time said assessment is made said assessment shall be made for an amount sufficient to pay all indebtedness of said company up to the time said assessment is made.”

On July 8, 1914, the directors of the company held their regular quarterly meeting, and the minutes of that meeting contain, among other things, the following: “The board finding the liabilities amounting to $3,611.94, and the cash funds on hand amounting to $27.70, on motion an assessment of ten per cent, was levied on all premium notes liable therefor, payable on or before August 15, 1914.” Such an assessment would produce about $4,700. Plaintiff in error was notified of this assessment and the proof shows he had not paid it at the time of the fire, which occurred six days after the last day for payment. Section 12, supra, provides that when an assessment is made it shall be for enough to pay all indebtedness of the company up to the time of the assessment. There was evidence tending to show the indebtedness of the company when this assessment was made was some $300 in excess of the amount of $3,611.94 mentioned in the record of the meeting. It is true that the Supreme Court of this State in Farmers’ Mut. Fire Ins. Co. of Palmyra v. Knight, supra, held that such a company as plaintiff in error has no “power to build up a surplus fund to pay future losses.” The opinion in that case, however, does not hold the diréctors can only levy an assessment exactly sufficient to pay the existing indebtedness and no more, but expressly states: “Where a loss occurs the managers may exercise a reasonable discretion in determining the amount necessary to be raised. There will always be more or less expense in the collection of an assessment, and there may be insolvent members from whom collections cannot be made. These and other like matters are proper to be considered by the managers in fixing the amount of an assessment. But where the managers go beyond all reasonable limits and make an assessment largely in excess of the amount required to pay the loss, as was done in this case, the assessment will be void and may be disregarded by the members. ’ ’ In that case the assessment was more than six times the amount of the indebtedness. To the same effect is the holding of the Appellate Court of this district in the ease of the Vandalia Mut. County Fire Ins. Co. v. Peasley, 84 Ill. App. 138. The Legislature evidently did not intend that such a company should never have any cash on hand, as the statute provides for the borrowing of money and making an assessment only when the amount of any loss shall exceed the cash funds on hand.

The question as to whether the amount of the assessment was reasonable was. one of fact to be determined by the jury, and there is proof to sustain the verdict. The instructions as given, when considered as a whole, fairly advised the jury of the law in the case and were free from material error. Counsel for plaintiff in error iiisists that the assessment was simply a call for the payment of a part of the premium note given by plaintiff in error and was not “an assessment upon all property to the amount for which the several pieces of property is insured, taken in connection with the rate , of premium under which it may be classified,” as provided by statute. We do not agree with counsel in this contention. It is evident from a reading of the statute, that the assessment was not intended to be in rem or a lien on or collectible out of the insured property, but only as a personal liability of the policy holder. Section 13 of the said Act (J. & A. ¶ 6349) provides that whenever an assessment is made every person composing the company shall be notified of “the sum due from him as his share thereof,” and section 14 (J. & A. ¶ 6350) authorizes the bringing of a suit against any member neglecting or refusing “to pay any assessment made upon him.” Section 9 (J. & A. ¶ 6345) allows any such company to classify the property insured under different rates according to the hazard of the risk. Such a difference in the rates of insurance would render an assessment-of a certain per cent, of the amount of insurance carried by each policy holder unequal and unjust. It is possible for one policy holder to have several pieces of property insured under different rates, and an assessment of a certain per cent, of the insurance carried by him would give him no benefit of the classification of the rates of insurance. The provision that an assessment shall be made “upon all property to the amount for which the several pieces is [are] insured, taken in connection with the rate of premium under which it may be classified,” obviates any injustice in an assessment and makes the same proportionate to the amount and rate of insurance. It is a means of providing that each policy holder shall pay his proportionate share of the losses and expenses according to the amount of insurance he carries and the rate of premium he pays on his several pieces of property insured. The amount of the premium note in this policy, and in all policies issued by the company, as shown by the evidence, was determined by the amount for which the particular property was insured, taken in connection with the rate of premium under which it was classified. Thus an assessment of ten per cent, of the premium notes would result in all property insured, or its owners, paying the assessment in proportionate shares according to the amount of insurance, taken in connection with the rate of premiums under which it was classified, and this is the result contemplated by the statute. It is not claimed plaintiff in error was assessed more than his proportionate share of the assessment. While this particular question does not appear to have been before the court at that time, yet it was stated by this court in Vandalia Mut. County Fire Ins. Co. v. Peasley, supra, that in the opinion of the court an assessment made by the same company and in the same manner as the one under consideration in this case was legally made. We are of the opinion the assessment was made in substantial compliance with the statute, and the judgment is accordingly affirmed.

Affirmed.

Mr.. Justice McBride having tried this case in the court below, took no part here.


text:
    William Kasten, Jr., Appellant, v. John Brinkman, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Instructions, § 126

      —when abstract instruction properly refused. An instruction which properly lays down an abstract proposition of law without applying it to the case is properly refused.
    2. Waters and water courses, § 32*—when instruction on damages in action by dominant tenement owner for damages due to obstruction of flow of water is erroneous. In an action by the dominant owner to recover damages from an adjoining owner of land for causing water to flow back on plaintiff’s land and injure his crops and land, due to the construction of an embankment, where plaintiff complained of the giving of an instruction which required of plaintiff, as a prerequisite to his right to recover, that he prove by a preponderance of the evidence that he had been damaged and that the damage had been occasioned by the unlawful act of the defendant, held that plaintiff did not have to prove actual damages to entitle him to a recovery, and that the court erred in giving such instruction.

      Appeal from the Circuit Court of Washington county; the Hon. J. F. Giixham, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action by William Hasten, Jr., plaintiff, against John Brinkman, defendant, to recover damages for the obstruction of the natural flow of water from plaintiff’s field over defendant’s field, due to the construction of an embankment. From a judgment for defendant, plaintiff appeals.
    O. G. Maxwell and J. A. Watts, for appellant.
    H. H. House and J. J. Bundy, 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.

3. Waters and water courses, § 31*—when instructions on rights of owner of dominant tenement are inapplicable to issues. In an action by the dominant owner to recover damages from the defendant, who was the servient owner, for causing water to flow back on plaintiff’s land, due to the construction of an embankment, where plaintiff complained of the giving of three instructions for the defendant which stated the law applicable to the owner of the dominant estate, held that, although such instructions in a measure stated the law applicable to the owner of the dominant estate correctly, they were misleading and not applicable to the issues, as the defendant, for whom they were given, was the owner of the servient estate; the rights of the servient owner being wholly different from those of the dominant estate.

4. Waters and water courses, § 8*—what are rights of owner of upper field as to discharge of water upon lower field. The owner of an upper field has a natural easement to have the water that falls upon his own land flow off the same upon the field below, which is charged with a corresponding servitude in the nature of dominant and servient tenements.

5. WIatehs and water coubses, § 32 —when nominal damages are recoverable for obstruction of natural flow of water. If the natural flow of water from the land of an owner is obstructed by the erection of an embankment by an adjoining owner, the owner whose land is obstructed may sue for damages and may recover at least nominal damages, even "though the embankment is constructed on the land of the wrongdoer, and although such owner whose land is obstructed may not have suffered actual damage.


text:
    S. L. James, Appellee, v. Illinois Central Railroad Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Railroads, § 889

      —when instructions on duty of railroad to avoid injuring animal on track are erroneous. In an action to recover for the death of a horse killed at a point on defendant’s railroad track within the' corporate limits of a village, where the defendant was under no duty' to fence its right of way, and the horse was upon the track in front of a freight engine which was running about twenty-five miles an hour, and an instruction was given that if the jury believed that by the exercise of reasonable care the horse could have been seen by an employee in charge of the train after the horse was on the track, in time to have stopped the train, or to have reduced its speed so as not to ■ have killed the horse, It was the duty of said employees to have done so, and three other instructions were given which imposed the duty upon the defendant to exercise reasonable care and caution to discover the presence of the horse, held that such instructions were erroneous, as the only duty which the defendant owed to the trespassing animal was to refrain from wantonly or wilfully; injuring it, and to use reasonable care and diligence to avoid injury to it after it was discovered to be in peril.

      Appeal from the Circuit Court of Effingham county; the Hon. William B. Wright, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action by S. L. James, plaintiff, against the Illinois Central Railroad Company, defendant, to recover the value of a horse killed by a freight train of defendant’s. From a judgment for plaintiff for $100, defendant appeals.
    Parker & Rickelman, for appellant.
    Lester Wright and Byron Piper, 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, saihe topic and section number.

   Mr. Justice Higbee

delivered the opinion of the court.

2. Appeal and error, § 1241*—when error in instructions cannot be complained of. A party cannot complain of an error in instructions where the same error is found' in the instructions offered by the complaining party.

3. Appeal and error, § 1522*—when omission of word in form of verdict submitted with instructions is not reversible error. In an action for damages against a railroad for killing a horse, where the court properly instructed the jury as to the form of the verdict, but two forms of verdict were, attached to the instructions, one being in the usual form for finding for the plaintiff, and the other was “We the jury find the defendant guilty,” held that the jury could not have been misled by the patent mistake of inadvertently omitting the word “not,” and, as the forms were properly stated to the jury, the mistake was not reversible error.

4. Railroads—when evidence insufficient to show wilfulness or negligence in injuring animal on track. In an action for damages against a railroad for killing a horse which got upon the track at a point where the defendant was not required to fence its right of way, where the freight train in question was going at the rate of about twenty-five miles an hour, and the evidence as to whether a curve in the track prevented the defendant’s engineer and fireman from seeing the horse in time was conflicting, and there was no evidence that the employees on the train saw the horse, save that of the fireman who testified that the horse was struck a few seconds after he saw it, held that if the testimony of the fireman was true there was no failure to exercise due care after discovering the horse, or even in discovering it, and that a finding that the employees were guilty of wilfulness or negligence in striking the horse would be against the manifest weight of ti^e evidence.

5. Railroads, § 789 —when duty to use care as to animal trespassing upon tracks arises. The duty on the part of railroad employees to exercise care as to an animal trespassing upon the tracks arises only after such employees have' discovered the animal to be on the track.


text:
    Corn Belt Building & Loan Association, Appellant, v. Citizens’ National Bank of Evansville, Indiana, et al., Appellees.
    (Not to be reported in full.)
    Abstract of the Decision.
    I. Mortgages—when correction of certificate of redemption 6y other than sheriff does not render it invalid. In a chancery proceeding by a mortgagee to set aside a deed obtained by a bank pursuant to its redemption in a foreclosure proceeding, as a judgment creditor, where the mortgagee bought in the premises at a sale, and complainant had obtained its judgment after the period of redemption by the mortgagor, but before the expiration of fifteen months, and had deposited the redemption money with the sheriff, who issued a certificate of redemption to the judgment creditor which did not contain a correct description of the property, but, before recording, such description was corrected in the presence of the sheriff by the attorney for complainant, held that such correction in the certificate did not render it invalid.

      Appeal from the Circuit Court of Edwards county; the Hon. J. C. Eagletoh, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Rehearing denied June 16, 1917.
    Statement of the Case.
    Bill by Com Belt Building & Loan Association, complainant, against the Citizens’ National Bank of Evansville, Indiana, and others, defendants, to set aside a deed obtained by defendant bank pursuant to its redemption as a judgment creditor in foreclosure proceedings. From a decree dismissing the bill for want of equity, complainant appeals.
    H. J. and J. H. Strawn, for appellant.
    Allen E. Walker and P. C. Walters, for appellees.

      See Illinois Notes Digest, Vols. XI to XT, and Cumulative Quarterly, same topic and sedMon number. ' .....

   Mr. Justice Higbee

delivered the opinion of the court.

2. Mortgages—when equities are with defendant on hill hy purchaser on foreclosure to set aside deed to redeeming creditor. On a bill filed by the purchaser' at a mortgage foreclosure sale to set aside a deed to the premises in question, issued by the sheriff to the defendant bank, where it appeared that the defendant bank, as a judgment creditor of the mortgagor, deposited an insufficient amount of redemption money with the sheriff, who issued a certificate of redemption to the defendant bank and advertised the premises for sale; that the amount deposited was $10 less than the full amount due complainant with interest, and did not include the year’s taxes which complainant had paid; that on the evening before the time of sale the attorney for defendant, upon discovering that complainant had paid taxes, informed the secretary for complainant that he would on the succeeding day pay to him a sufficient sum to cover the taxes and any other sum legally due complainant, and such secretary left town on the succeeding day so that the money could not be paid to him, and the $10 error was not discovered until after the filing of the bill, and defendant bank, when the case was called for hearing, made a tender of sufficient money to pay the amount due complainant, but such tender was refused, held that the equities were clearly with the defendant bank and that the decree dismissing the bill for want of equity was proper.

3; Mortgages, § 602 —what are rights of purchaser at mortgage foreclosure sale. A purchaser at a mortgage foreclosure sale does not by his purchase acquire title to the land, either legal or equitable, but he has only the right to receive the redemption money, or, in case no redemption is made by the owner of the equity of redemption or by a judgment creditor, to receive a master’s deed at the expiration of the period of redemption.

4. Mortgages—what construction given to redemption laws. A liberal construction is to be given to the mortgage redemption laws to the end that the property of the debtor may pay as many of his debts as possible.

5. Mortgages—what does not render redemption void. Technical errors, which do not go to the substantial merits of a case, should not render a redemption by a judgment creditor and the subsequent mortgage foreclosure sale void.

6. Mortgages, § 596*—when duty lies upon sheriff to execute deed to lower bidder forthioith. On a bill by the purchaser at a foreclosure sale to set aside a deed given by the sheriff to a purchaser at a sale made pursuant to redemption by £t judgment creditor of the mortgagor, where it appeared that a bid slightly higher than that made by the defendant bank was made by a party who, at the hearing of the bill, appeared as one of the attorneys for complainant; that such party was declared the purchaser; that the sheriff gave such party until a certain hour of the day of the sale to pay the money, but before that time delivered the deed to the defendant bank, and no tender of the amount paid by such party who made the higher bid was ever made, held that it was the sheriff’s mandatory duty to execute the deed to the defendant bank.

6


text:
    Jep Borah, Appellee, v. Southern Railway Company, Appellant.
    1. Railroads, § 889

      —when instruction on liability of railroad for injury to animal on track is erroneous. In an action against a railroad company to recover for the death of a cow as the result of being struck while trespassing on a track of the defendant, where an instruction was' given that if, by the use of ordinary care and diligence on the part of the servants of a railroad company, animals straying upon its tracks can be saved from injury, then it is the duty of such servants to exercise that degree of care, and a failure so to do if proved, where the injury results without negligence on the part of the owner of the stock, renders the company liable for any damages sustained thereby, held that such instruction did not state the law correctly as applicable to the case, in that it ignored the prerequisite, that before a railroad can be held liable in such a case for failure to exercise ordinary care and diligence it must be shown that the animal was seen or known to be upon the track, and that the giving of such instruction constituted reversible error.
    2. Railroads, § 784*—when company liable for injury to animal on track. A railroad company is not liable for an injury to an animal trespassing upon its tracks, occurring through the failure of the employees to exercise ordinary care and diligence, unless it is shown that the animal was discovered upon the track and that thereafter such employees could by the exercise of ordinary care and diligence have prevented the injury, or it is shown that said employees were guilty of wilfully and wantonly causing the injury.
    Appeal from the Circuit Court of Wayne county; the Hon. J. C. Eagleton, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 13, 1917.
    Creighton & Thomas and Kramer, Kramer & Campbell, for appellant; Edward P. Humphrey, of counsel.
    Boggs & Boggs, 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.

Appellee, Jep Borah, sued, before a justice of the peace, appellant, Southern Railway Company, to recover the value of his cow, tilled on appellant’s right of way by one of its trains, and obtained a judgment for $60. On appeal to the Circuit Court there was a verdict in favor of appellee for $50, for which amount and costs the judgment was entered against appellant, and the latter has brought the record 'by appeal to this court.

It appeared from the proofs that the cow had in some manner, through no fault of appellee, gotten out of his bam where he had placed her on the evening of December 20th, and strayed upon appellant’s right of way within the corporate limits of the Village of Sims in Wayne county. The next morning, between four and five o’clock, she was seen by a witness on the right of way a short distance west of a public highway, which crosses appellant’s railroad within said village, nearly at right angles, about half a mile east of the western limits of the village. Some twenty minutes after the cow was seen upon the right of way she was struck and injured, at a point about forty feet west of said public highway, by a freight train of appellant going in an easterly direction, .and running some thirty miles an hour. The land west of the highway at and near where the cow was struck is platted in town lots for a distance of half a mile and there are residences or .business houses on both sides of the railroad for some distance west of the crossing. The track west of the highway for a distance of about a quarter of a mile was straight and the view apparently Unobstructed. There was a controversy on the part of witnesses for the respective parties as to whether the bell of the engine was rung or the whistle blown at the time or just prior to the time the cow was injured. The engineer and fireman of the engine in question were not produced as witnesses on the trial, and whether or not one or both of them saw the cow before she was struck was not shown by the proofs, but appellee insists that the presumption arising from the evidence, together with the failure of the company to produce the engineer, warranted the jury in finding that the engineer saw the cow upon the track and thereafter failed to exercise ordinary care to avoid injuring her.

The deduction drawn by appellee from the proof seems to us to be somewhat strained and to call upon the imagination to some extent to bear it out. As, however, the case must go back for another trial for errors based upon instructions, we will not comment upon the proof further than to say that at best it shows a very doubtful right of recovery. Upon the trial the court gave the following instruction on the part of appellee: “The court instructs the jury, as a matter of law, that when, by the use of ordinary care and diligence, on the part of the servants of a railroad company, animals straying upon its tracks can be saved from injury, then it is the duty of such servants to exercise that degree of care, and a failure to do so, if proved, where the injury results without negligence on the part of the owner of the stock, renders the company liable for any damages sustained thereby.” This instruction did not state the law applicable to the facts in the case correctly. Under the decisions in this State the doctrine is well settled that a railroad company is not liable for an injury to an animal trespassing upon its tracks, occurring through the failure of its employees to exercise ordinary care and diligence, unless it is shown that the animal was discovered upon the track and that thereafter the employees of the railroad company could by the exercise of ordinary care and diligence have prevented the injury, or it is shown that said employees were guilty of wilfully and wantonly causing the injury. In Illinois Cent. R. Co. v. Noble, 142 Ill. 578, which was an action brought for Noble against the railroad company to recover the value of certain horses belonging to him and killed on the railroad company’s tracks by one of its engines, an instruction was asked stating that “unless the plaintiff has proved, by a preponderance of the evidence, that after the horses were seen approaching the track, the trainmen might, by the • exercise of ordinary care, have prevented the train from striking the horses, you should find the defendant not guilty.” This was modified by the court to read as follows: “Unless the plaintiff has proved, by a preponderance of the evidence, that after the horses were, or by the exercise of reasonable care could have been, seen approaching the track, or on the track, the trainmen might, by the exercise of ordinary care, have prevented the train from striking the horses, you should find the defendant not guilty.” The court in its opinion discusses the question of the care to be exercised towards animals trespassing upon railroad‘tracks by those operating the road, and it is said in the course of the opinion: “We are not prepared to hold that the duty of a railroad company to mere trespassers, or to the owners of trespassing animals, requires such company to run its trains with a view to the constant probability of trespassers upon its track. * * * We are of the opinion that the instruction in this case, so far as it imposed upon the servants of the defendant in charge of its train the duty of care and caution to discover the presence of trespassing animals of which they knew nothing upon the track, was errroneous, and for that error the judgment will be reversed and the cause will be remanded to the Circuit Court for a new trial.

In Delta Elec. Co. v. Whitcamp, 58 Ill. App. 141, this court said in a case involving the killing of stock by a railroad company: “We have examined the record and find the facts to be, the mule of appellee, which was injured in the collision, was trespassing on appellant’s track. Under this state of facts, the law is the defendant was not liable for the injury, unless, first, the act was wilful or wanton, or second, that after the animal was discovered to be on the track, the servants of the defendant were negligent.” In Leslie v. Wabash R. Co., 118 Ill. App. 606, Mr. Justice Vickers, who wrote the opinion, in speaking of the killing of trespassing animals upon the track of the railroad.company, stated that the only duty the company owed the owner of the stock under the circumstances of the case, “was to use all reasonable care to avoid injuring the cattle after they were discovered on the track.”

In the case before us, the cow in question was admittedly a trespasser upon the track of appellant at the time she was killed, and therefore, under the authorities above referred to, the instruction given by the court relative to the use of ordinary care and diligence on the part of the servants of the railroad company did not state the law correctly as applicable to the case, in that it ignores the prerequisite that before a railroad can be held liable in such a case, for failure to exercise- ordinary care and diligence, it must be shown that the animal was seen or known to be upon the track, and for this error the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Henry T. Witwer, Appellant, v. John H. Curry, Appellee.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Effingham county; the Hon. Wítlliam B. Weight, Judge; presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action by Henry T. Witwer, plaintiff, against John H. Curry, defendant, to recover for damages done to his automobile by employees of defendant. Defendant filed a set-off for materials furnished by him and labor performed in repairing the car. From a judgment for defendant for $37.50, plaintiff appeals.
    Walter E. Rinehart, for appellant.
    G. P. Denton, 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.

Abstract of the Decision.

1. Appeal and error, § 1401 —when verdict not disturbed. In an action to recover for damages to an automobile caused in the garage of the defendant, where on appeal from a justice of the peace the defendant filed a set-off for the value of materials and labor furnished by him, and the jury found in favor of defendant on his set-off, held that as the real question in controversy was one of fact, and as there was proof to sustain the’ verdict, such verdict should not be disturbed.

2. Appeal and error, § 1525*—when giving of inaccurate instruction is not reversible error. In an action to recover for damages to an automobile caused in the garage of the defendant, where the defendant filed a set-off and the jury found in favor of the defendant on such set-off, held that although an instruction which stated that in order to recover, plaintiff was required to show by a preponderance of the evidence that his property was damaged through the negligence of plaintiff, and that he exercised reasonable caution to prevent such damage, was inaccurate and did not appear to apply to the facts in the case, the instructions as a whole fairly and correctly advised the jury of the law applicable to the facts in proof, and fully stated plaintiff’s theory of the law, and therefore the inaccuracy could not have misled the jury, and the giving of it was not reversible error.

* 3. Instructions, § 159*—when sufficient upon consideration as a series. Instructions are to be considered as a single series, and when so considered it is sufficient, if, as a whole they state the law correctly, even though one or more of them standing alone may be erroneous.