text:
    The Commercial Company of Alton, Appellee, v. William H. Sturges et al., Appellants.
    1. Coepobations, § 344

      —when plea of ultra vires may he interposed in a collateral proceeding. Where a contract has been entered into by a corporation, a plea of ultra vires cannot be successfully interposed in a collateral proceeding based upon the same, where the corporation in such contract merely abused or exceeded the general powers conferred upon it by its charter; but where the law gives the corporation no authority whatever under its charter to do the acts sought to be done under the contract, then the doctrine of ultra vires may properly be raised in a collateral proceeding upon the contract.
    2. Cokpobations, § 406

      —when defense of ultra vires may he raised in a suit for rent. Where a corporation, organized for the purpose of conducting a business of a safe deposit or safe storage of valuable personal property, erected a large store and office building for the purpose of leasing the rooms and made no attempt to exercise the powers granted it, held in a suit by it against one of its tenants for rent that the defense of ultra vires could be raised.
    Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded with directions.
    Opinion filed May 1, 1914.
    Levi Davis, for appellants.
    John F. McGinnis, 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 conrt.

Appellee commenced this suit in the Circuit Court of Madison county on May 6, 1912, to recover two months ’ rent claimed to be due it from appellants, for the use of a storeroom. Appellee declared upon a written lease executed by it to appellants and attached a copy of the same to the declaration. The lease was dated July 2, 1907, was to commence August 1, 1907, and run for a term of five years. It provided for the payment of rent at the rate of $158.33% per month, payable on the first day of each and every month during the continuance of the lease.

Appellants filed two special pleas to the declaration, averring that appellee was incorporated under the general act concerning corporations, on September 13, 1906, for the single object of pursuing the business of a safe deposit or safe storage of valuable personal property; that appellee purchased a lot in Alton and erected thereon a building covering the whole of the lot and being five stories high, with a basement; that the first story was divided into two storerooms, one of which, with a basement under it, is and has been ever since the erection of the building occupied by a tenant of appellee as a restaurant and confectionery; that the other storeroom, with a basement under it, are the premises mentioned in the declaration as having been leased to appellants; that the second story of the building has been and is occupied by a tenant of appellee for the purpose of conducting a carpet store ; that the third, fourth and fifth stories of said building were each divided into twenty rooms for offices, many of which are rented and occupied by tenants of appellee for the purposes of their own business; that such of said offices as have not been rented by appellee are held by it for the purpose of renting or leasing the same for certain rates of rent fixed by it; that neither appellee nor any of said tenants have ever occupied or used in any way any part of said building for the business of a safe deposit or safe storage for valuable personal property, nor has appellee ever occupied any part of said building for any purpose whatever nor does it now occupy any part of the same; that appellee never owned or occupied any other real estate than said lot and building and has never, either in said building or elsewhere, engaged in any business for which it was incorporated; that the only business appellee has ever carried on is the business of dealing in real estate, to wit, the holding of said lot and building as an investment and the leasing of the same to tenants as aforesaid and the receipt and acknowledgment of the rentals derived therefrom; that appellants quit and surrendered unto appellee possession of the storeroom and basement mentioned in the declaration on March 31,1912, and have not had possession or use of the same since that date and that no portion of the rent sued for and mentioned in the declaration accrued prior to the date last above mentioned.

The second plea was substantially to the same effect as the first, though it was shorter in form and contained the additional statement that appellee acquired said lot and erected said building thereon not for the purposes for which appellee was incorporated but as an investment and for the purposes of leasing to tenants for the profits which could be realized therefrom. Appellee filed a general demurrer to said pleas which was sustained by the court and appellant elected to abide by their said pleas. The court thereupon entered judgment by default against appellants and proof was introduced by appellee showing that two months’ rent was due it under the lease, and judgment was entered against appellants for the sum of $316.66%.

Appellants take the position that appellee, as a corporation under the laws of this State, had no legal authority to execute the lease in question and that its act in so doing was ultra vires and that the lease is therefore void and cannot be enforced, while appellee asserts that the act of the appellee corporation cannot in this regard be attacked collaterally, but can only be questioned in a direct action by the State. Section 1 of the General Act of this State (J. & A. ¶ 2418) concerning corporations, prohibits the organization of corporations for the purpose of carrying on real estate brokerage. Section 5 of the same act (J. & A. ¶ 2422), however, authorizes corporations formed thereunder to “own, possess, and enjoy so much real and personal estate as shall be necessary for the transaction of their business and may sell and dispose of the same when not required for the uses of the corporation.”

In the case of People v. Shedd, 241 Ill. 155, it is said: “Under the general incorporation law this court has decided that the General Assembly has declared by its legislation that the public policy of the State will not allow corporations to hold real estate beyond what is necessary for the business or specific corporate purpose of such corporation;” and again “from the time of the enactment of our general incorporation law it has been uniformly held that the acquiring and holding of real estate are not purposes for which a corporation may be organized.”

The question is presented for our consideration whether a corporation organized for the purpose of carrying on the business of a safe deposit or safe storage for valuable personal property, which neglects for a period of nearly six years after its incorporation to enter upon the business for which it became incorporated, but on the contrary immediately after incorporation entered into a real estate business, that is purchased land and erected a large store and office building thereon and leased the same and collected rents therefrom, can enforce a contract of leasing against, former tenants for the unexpired portion of a written lease, where the tenants have given up the premises for that part of the unexpired term for which rent is sought to be collected. In the case of Rector v. Hartford Deposit Co., 190 Ill. 380, the company was organized for purposes similar to those for which appellee was organized. It proceeded to erect a fourteen-story building with eight stores on the ground floor and over one hundred suites of offices on the upper floors. The only safety deposit vaults operated by the company consisted of a small vault on the fourth floor of the building constructed in one end of one of the private offices used by the company for its officers and agents. The inside dimensions of the floor of the vault was five by six feet and it was eight feet high. It had within the vault two wooden boxes and fifty-two steel boxes but only twenty of them had ever been rented. The gross rent received from the building was $100,000 per year, while the earnings from the safety deposit vaults did not exceed $100 per year. It was held in that case that it was within the general scope of the express powers of the corporation to own and possess a building necessary for its proper and corporate purposes; that in planning and constructing such a building the company was not necessarily to be restricted to a building containing the precise number of rooms its then business might require and no more, but that the future probable growth and volume of its business might be considered and anticipated and a larger building might be erected than the immediate volume of business required, and the rooms not needed might be rented to others, provided such course should be taken in good faith and not as a mere evasion of the public law and policy of the State, relative to the ownership of real estate by corporations: that “in such state of case the question is whether the corporation has abused or excessively and unjustifiably used the power and authority granted it by the State to construct buildings and own real estate necessary for its corporate purposes.” It was further said in that case that: “It has never been held in this State, or understood to be the law, that the question whether such power has been abused, could be raised and availed of in a defense in a proceeding wholly col lateral to the question of the right and power of the corporation in the premises.”

Appellee contends that the case above referred to presents substantially every question involved in the present case, and that its decision which affirmed the judgment of the Appellate Court, reversing a judgment against the deposit company in the court below, is conclusive authority sustaining the judgment in favor of appellee in this case. A careful examination of that case, however, indicates that the decision in favor of the deposit company there does not lead to the conclusion that appellee was entitled to recover in this case. The opinion in that case was devoted largely to a proposition of law presented to the trial court by the deposit company but refused by that court, which was as follows: “The court holds as a proposition of law in the trial and decision of this case, that the plea of ultra vires may be successfully interposed in a collateral proceeding where the corporation is alleged to have performed an act which it was not, under any circumstances, authorized to perform, but that where the act is one which at most is but a mere abuse or excessive use of a general power conferred upon the corporation by its charter such plea cannot be successfully interposed, because the question of ultra vires can in such cases be raised only in a direct proceeding by the State to oust the corporation of its usurped powers.” The Supreme Court held that this proposition presented correct legal doctrine and should have been held as correct, and it was for a failure to do so the judgment of the trial court was reversed.

In the case of the People v. Pullman’s Palace Car Co., 175 Ill. 125, it was held that a corporation had a right to erect a building for its own purposes and that in so doing it had a right to take into consideration its probable prospective requirements and look after and prepare for the future, and that there was no reason why such parts of the building as were not required for present use for the accommodation of its business should remain vacant, but that the same might be lawfully rented to other persons. It was further held, however, that: “A corporation could not be permitted, under mere color and pretense of furnishing accommodations for the transaction of its own affairs, to construct houses or rooms for the purpose of renting the same, and .engage in renting such houses or rooms as a business, if such pursuit was, as it here clearly is, beyond and distinct from that it was created to pursue and accomplish.”

From the above authorities and other cases in our Supreme Court reports it would appear that where a contract has been entered into by a corporation, a plea of ultra vires cannot be successfully interposed in a collateral proceeding based upon the same, where the corporation in such contract merely abused or exceeded the general power conferred upon it by its charter, but that where the law gives the corporation no authority whatever under its charter to do the acts sought to be done under the contract, then the doctrine of ultra vires may properly be raised in a collateral proceeding upon the contract.

In the case of National Home Building & Loan Assn. v. Home Sav. Bank, 181 Ill. 35, it was held that the building association could not hold real estate except for the purpose of carrying on its legitimate business of collecting a debt, and the Court in its opinion stated: “The law on this subject is stated by the Supreme Court of the United States in Central Trans. Co. v. Pullman Palace Car Co., 139 U. S. 24, as follows: ‘The charter of a corporation, read in the light of any general laws which are applicable, is the measure of its powers, and the enumeration of these powers implies the exclusion of all others not fairly incidental. ’ * * * It is, and .always has been, against the policy of the State to permit corporations to accumulate landed estates or to own real estate beyond what is necessary for their corporate business or such as is acquired in the collection of debts. * * * In Central Trans. Co. v. Pullman Palace Car Co., supra, the result of the decisions as to the exercise of powers not granted is summed up, as follows: ‘All contracts made by a corporation beyond the scope of those powers are unlawful and void, and no action can be maintained upon them in the courts.’ ”

In Rector v. Hartford Deposit Co., siopra, the Court, in referring to the fact that the early decisions of the court were to the effect that the corporation having a general power to own real estate for corporate purposes may be required to answer to the State only for an alleged nsurpation of that power, further says: “In later cases, notably National Home Building & Loan Ass’n v. Savings Bank, 181 Ill. 35, and Best Brewing Co. v. Klassen, 185 id. 37, the defense of ultra vires has been allowed to be collaterally maintained in cases where the ultra vires act of the corporation was wholly beyond and outside the general scope of its corporate powers, express or implied, and entirely foreign to the objects and purposes of its creation,—something which, under any and all circumstances, was beyond its power, either as expressed in the grant or as possessed by necessary implication.”

In Imperial Bldg. Co. v. Board of Trade, 238 Ill. 100, where there is an extended and clear exposition of the authorities in reference to the subject, the statement is made: “It is not, and could not reasonably be, contended that under said general incorporation act a corporation can be organized for the purpose of purchasing and holding real estate. This act has often been before this court, and it has uniformly been held that acquiring and holding real estate are not purposes for which a corporation may be organized but that the organization of corporations for such purposes is forbidden by the statute. (Bixler v. Summerfield, 195 Ill. 147; People v. Pullman Palace Car Co., 175 id. 125; Carroll v. City of East St. Louis, 67 id. 568; First M. E. Church v. Dixon, 178 id. 260.) Authority is given corporations organized for legitimate purposes, not prohibited by law, to acquire and hold such real estate as may be necessary for the transaction of the business of the corporation, but beyond this, corporations, no matter for what purpose organized, are forbidden to hold real estate, but are required by the statute referred to, to sell the same within five years or be proceeded against by the State’s attorney by information. ’ ’ In that case the object for which the corporation was formed was to lease property for a term not to exceed ninety-nine years, for the purpose of erecting thereon a building for the accommodation of tenants, to make the leases, collect rents and do all things incident to the management of said property. A suit was brought by the building company to recover rent upon a lease and it was held by the court that the legal existence or right of the building company to organize for said purpose, under our general incorporation act, could be properly raised in that proceeding. It follows from what is above said that if the Commercial Company of Alton, appellee herein, had sought to organize for the purpose of erecting the building in question and renting the same and collecting and enjoying the rents therefrom, such charter would have been refused or, if granted, would have been void and the question of its corporate existence or right to make the contract in question could be properly raised in such case. It was, however, organized for a different purpose,— that of conducting the business of a safe deposit or safe storage of valuable personal property. It has never attempted to exercise the powers granted to it, but has sought to exercise powers which, under the law, could not be granted to it by a charter from the State. It likewise follows that it had no authority to carry on the business in which it was engaged or to execute the contract sued on here and that its right to do those things may be rightfully raised by proper pleas in this case. The pleas presented by appellant properly presented the question of appellee’s right to maintain this suit, and the court erred in sustaining the demurrer to them.

The judgment in this- case will be reversed and the cause remanded with directions to the court below to overrule the demurrers to the special pleas.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Higbee

license: Public Domain

text:
    Michael Schroeder, Appellee, v. East St. Louis and Suburban Railway Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed May 1, 1914.
    Statement of the Case.
    Action by Michael Schroeder against East St. Louis and Suburban Railway Company to recover damages for personal injuries sustained by plaintiff through the alleged negligence of defendant in operating one of its cars while plaintiff was riding as a passenger thereon.
    The declaration alleged that plaintiff rang the bell as a signal for the car to stop at a station where he desired to alight and walked out on the rear platform and stood there waiting for the car to stop, and instead of stopping the car, the employes in charge thereof suddenly started the car at a greater speed, thereby causing the car to make a sudden start or lunge and causing plaintiff to unavoidably lose his balance and fall off. The general issue was filed and the trial resulted in a verdict and judgment in favor of plaintiff for four hundred dollars. To reverse the judgment, defendant appeals,

      Williamson, Burroughs & Ryder, for appellant.
    J. V. E. Marsh, for appellee.
    Abstract of the Decision.
    1. Carriers, § 476

      —when Recovery for injury to passenger by falling off car not sustained by the evidence. In an action against a suburban railway company for personal injuries alleged to have resulted from the negligence of the defendant in suddenly starting its car so as to cause plaintiff to fall off after he had given a signal for the car to stop at a station and while he was standing on the rear platform waiting for the car to stop, held that a verdict for plaintiff was not sustained by the evidence, the preponderance of the evidence not showing that there was any sudden starting of the car as alleged.
    2. Carriers, § 491

      —when refusal of requested instruction improper. A requested instruction telling the jury “that, although you may believe from the evidence that the defendant did not stop its car for plaintiff to alight, yet that fact does not justify the plaintiff in going upon the platform and so near to the step as to be in a dangerous position while the car was running at a high rate of speed, and if you believe, from the evidence, that before the defendant’s car began to slacken its speed the plaintiff went upon said platform and near to the steps of said car while it was running at a high rate of speed, and that his action in so doing was negligent, and a lack of due care for his own safety, and that such action on his part helped to bring about the injury, then you should find the defendant not guilty,” held improperly refused.

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

   Mr. Justice Higbee

delivered the opinion of the court.


text:
    Taekley Baziules, Administratrix, Appellee, v. O’Gara Coal Company, Appellant.
    1. Mines and minerals, § 109

      —when statute requires trip of cars to carry lights. Under section 15, div. “A,” of the Miner’s Act (R. S. 1911, J. & A. ¶ 7489), a trip of cars is required to carry lights though not attached to a motor car, where they are put in motion by means of the motor car in making a flying switch from the single haulage track to a parting track.
    2. Mines and minerals, § 191

      —when instruction as to duty to maintain lights on trip cars proper. In an action for the death of a miner resulting from being run over by a trip of cars in a mine, an instruction as to the duty of the - coal company to have placed upon the front of the trip of cars a conspicuous white light, held to state the law applicable to the case.
    3. Mines and minerals, § 187

      —when instruction basing right to recovery on negligence not erroneous. In an action for the death of a miner resulting from being run over by a trip of cars, where there was a count in the declaration alleging a violation of statute and a common-law count averring negligence, the giving of an instruction basing plaintiff’s right to recover on negligence held not error because negligence was not averred in the statutory count.
    4. Limitation oe actions, § 62

      —when amendment of declaration does not state new cause of action. In an action for wrongful death, an amendment to a declaration changing the given name of one of the children of the deceased and adding the name of one that had been omitted, held not to state a new cause of action.
    5. Pleading, § 250

      —right to amend declaration. Permitting plaintiff to amend his declaration after the evidence was all in, by changing the given name of one of the parties and inserting the name of a person which had been omitted, held not error.
    Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1914.
    M. S. Whitley, for appellant.
    J. B. Lewis and Alpheus Gustin, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.

This was a suit brought by appellee as administratrix for the benefit of the next of kin of Joseph Baziules, who was killed while employed in one of appellant’s coal mines, by being struck and run over by certain pit cars. There were two counts in appellee’s declaration. The first charges that appellant wilfully propelled down an entry, through which appellee’s intestate was walking, a trip of pit cars, by machinery, without having on the front end of the pit cars a conspicuous white light as required by statute and that said cars struck, ran over and killed him. The second charged common-law negligence on the part of appellant in not furnishing appellee’s intestate a reasonably safe passageway through said entry, and that while he was passing along said passageway in the exercise of due care and caution for his own safety* appellant, in disregard of its duty, carelessly and negligently propelled a trip of cars along said passageway, which struck him and caused his death. The accident is alleged to have occurred September 22, 1911. During the trial in January, 1913, appellee amended his declaration by changing the given name of one of the children of deceased and adding the name of one that had been omitted. Appellant filed a plea of the statute of limitations to the declaration as amended, to which a demurrer was sustained. The jury returned a verdict for one thousand five hundred dollars. Motions for a new trial and in arrest of judgment were overruled and judgment entered for that amount.

The following facts appeared upon the trial of the cause: About one-half mile from the bottom of the shaft in one of the entries of appellant’s mine in question is a parting where the pit car tracks are double. On one track are hauled loaded cars that are pulled from the different rooms in the mine by mules. These cars are coupled together and hauled to the bottom of the shaft by an electric motor that is in charge of a motorman. When the loaded cars reach the shaft, the motorman picks up a trip of empty cars which he takes back to run on to the other track at the parting, that the drivers may hitch the mules to them and take them back into the mines to be reloaded. As the track approaches the parting it inclines slightly in that direction, and as the motorman returns with his trip of empty cars it is his custom to slack up as he approaches the switch. The cars are then uncoupled from the motor while in motion. The motor then increases speed and runs in on the loaded track, the switch is then thrown and the trip of empty cars, by reason of the momentum already given them and the decline in the track, run in on the empty track. These two tracks are located at a distance from a foot to eighteen inches from the coal along the sides of the entry and the distance between the tracks is from six to twelve feet. The latter space is used for the mules in going back and forth and in passing through the entry, and it was necessary for the miners in passing through, either to go along the tracks or in the space between them. About four o’clock in the afternoon of the day in question, deceased had finished his work and was going through the entry on his way to the bottom of the shaft. As he reached the parting there were eight or ten cars on the load track and some five mules in the space between the tracks. He therefore started up the empty track and by the time he reached the middle of the parting, opposite where there were some of the mules, the motorman and his assistant reached the switch with a trip of eight empty cars, which he ran over onto the empty track in the usual way, the motor running onto the load track and stopping within three or four feet of the loaded cars standing thereon. The mules between the tracks were at the time making considerable noise and the trip of cars, which had no light on it, came down over the empty track, striking and running over Baziules and killing him. The only lights besides those on the miners’ hats were one at the switch, some forty feet away, and the white light on the front of the motor, hut the latter, when the motor stopped, was next to the loaded cars which were several feet above it.

The first count of the declaration sets up a wilful violation of that portion of section 15, div. “A,” R. S. 1911 (J. & A. ¶ 7489), relating to coal mines, which provides: “A conspicuous white light must be carried on the front and a conspicuous red light or white signal board on the rear of every trip or train of pit cars, moved -by machinery.” It is insisted by appellant that the facts in this case as shown to exist at the time of the injury to Baziules did not constitute a breach of the statute, because, first, the trip of cars were not at the time they struck Baziules being moved by machinery; second, because as there was a conspicuous white light on the motor, the law was therefore complied with and it was not necessary to have such a light on the trip of cars after they left the motor. The section of the law in relation to coal mines, above referred to, provides in the beginning that; “On all single-track haulage roads, where hauling is done by machinery, which roads the persons employed in the mine must use while petforming their work or travel on foot to and from their work, there shall be places of refuge, etc.” Then comes a sentence providing for signalling on rope-haulage roads, which is followed by the provision in reference to the carrying of lights all ove set forth. Appellant argues that from a reading of the whole of division A, it appears that it is intended to apply only to “single track haulage roads” where hauling is done by machinery and that it does not apply to cases like this. It might be sufficient to say, strictly speaking, that the road in question was a single track haulage road, and the fact that there was a parting with two tracks or switches where loaded cars going to the bottom of the shaft and empty cars coming therefrom could pass each other would not change the character of the road. But apart from that consideration the provision requiring lights to be carried on the trip or train of pit cars is entirely separate and distinct from the first paragraph, which requires places of refuge on single-track haulage roads, where hauling is done by machinery, and is separated therefrom by a complete sentence referring to an entirely different matter, that is to signalling on rope-haulage roads; nor does it appear necessary that the motor should be attached to the trip of cars to require "a light to be carried thereon in case it or other machinery has furnished or is furnishing’ the motive power. That the cars which struck Baziules were moved by the motor, cannot be questioned. The motor had pulled them near to the parting where it was uncoupled from them and then moved rapidly on one track, while the cars, which had never lost their motion, were switched onto the other track, making a flying switch.

The principal object of the statute under consideration as indicated by its title and by the provisions thereunder is to provide for the health and safety of persons employed in coal mines. It is just as important for the protection of the coal miners, possibly more so, that a trip of cars which had been placed in motion by a motor and shunted down another track, should carry a light to warn the miners of its approach as that the motor itself should carry it. It would also appear that the danger of injury to a minor at the place where Baziules was killed would, by reason of the cars on both tracks and the mules running between and the consequent confusion, have been greater than in another place in the mine where there was but a single track. If full effect is to be given to the intention and the provisions of the statute, it must be held to apply to just such places and to such circumstances.

In the case of Guthrie v. Empire Coal Co., 150 Ill. App. 530, the charge was a wilful failure to carry a conspicuous light on the front end of every trip or train of pit cars moved by machinery as required by section 21a of the Miners’ Act then in force. In that case, empty and loaded cars were run back and forth between the bottom of the shaft and the parting by means of cables wound over drums, by power furnished by a stationary engine. A miner coming from his work in one of the rooms got on one of the tracks and was struck by a trip of cars going towards the shaft, not carrying the light required by the statute, and a recovery against the coal company was sustained by the court. The proofs concerning the facts relied upon to sustain the first or statutory count of the declaration in this case are not controverted, and the only question is whether under these facts appellee was entitled in law to recover. We are of opinion that the case presented was clearly one which brought it within the provisions of the statute and that appellee had a clear right of recovery under that count. Complaint is made that the court improperly admitted certain evidence and excluded other evidence bearing upon the question whether deceased was at the time he was killed in the exercise of due care for his own safety. We think it unnecessary to consider this question, however, as under the uncontroverted proofs appellee was entitled to recover under the first count, and it was therefore immaterial whether he was or was not in the exercise of ordinary care for his own safety at the time he was run over and killed.

Appellant also questions certain instructions given on behalf of appellee, particular attention being paid to instructions No. 2, 4 and 12. The second instruction was based entirely upon the second or common-law count of the declaration and need not be considered. The fourth instructed the jury as to the law governing the placing of a conspicuous white light upon the front of every trip or train of pit cars moved by machinery in its mine, as above set forth, and told them if they found from the preponderance of the evidence, that on the day in question said coal company was moving a certain train or trip of pit cars in said entry, by machinery, then it was the duty of said coal company to have placed upon the front of said trip or train of pit cars a conspicuous white light. This appears to us to correctly state the law applicable to this case upon this question. The particular objection to the instruction made by appellant was that, as a matter of fact, the cars were not being moved at the time in question by machinery, which position, as we have above seen, is not well founded.

The objection to the twelfth instruction is that it told the jury that if they believed from a preponderance of the evidence the defendant was guilty of the negligence charged in the plaintiff’s declaration or some count thereof, and that the death of Baziules was the natural consequence of such negligence, if such there was, and that such result might have been foreseen and reasonably anticipated, that then such negligence, if such there was, would be regarded in law as the proximate cause of such death. The claim of appellant is that this instruction is erroneous because no negligence was charged in the first count of the declaration at all. The cases relied upon by appellant to sustain this theory are all cases in which a violation of the statute is charged, and there was no common-law count in any of them. Here, however, there was a common-law count and the instruction refers to the negligence “charged in plaintiff’s declaration or some count thereof,” 'and while it might have been more carefully drawn it is not as a whole erroneous. Other objections are made in reference to the instructions given or refused, but no authorities are cited by appellant to support such objections and no reason appears to us why they should be sustained.

Appellant finally insists that the court erred in permitting appellee to amend his declaration, after the evidence in her behalf was all in, by changing the given name of one of decedent’s children and inserting the name of another which had been omitted. The objection is especially urged in view of the fact that the amendment was made after the One-Year Statute of Limitations had expired.

In Grace & Hyde Co. v. Strong, 224 Ill. 630, which is relied upon by both appellant and appellee upon this question, leave was given the plaintiff at the close of the evidence to amend his declaration by stating correctly the first or Christian names of four sisters of the deceased alleged to be his next of kin, which had not been properly stated in the declaration. Thereupon defendant filed a plea of the Two-Tear Statute of Limitations, to which the plaintiff demurred and the court sustained the demurrer. The Supreme Court held that the amendment was properly allowed; that it neither changed the cause of action nor stated a 'new one; that appellant was deprived of no legal right by allowing the amendment. In Chicago City Ry. Co. v. Hackendahl, 188 Ill. 300, more than two years after the cause of action had accrued, leave was given to file an amended declaration by inserting the names of the mother, brothers and sisters of the deceased. This was held by the Supreme Court to merely correct the imperfect statement of a good canse of action and that it did not state a new cause of action and was not susceptible to the plea of the statute of limitations. It would appear, therefore, that the trial court in this case did not err in permitting the amendment complained of and that appellant was deprived of no legal right by the action of the court in allowing the same.

The judgment of the court below in this case will be affirmed.

'Affirmed.


text:
    Martin Mattingly, Administrator, Appellee, v. O'Gara Coal Company, Appellant.
    (Not to he 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, 1913.
    Affirmed.
    Opinion filed May 1, 1914.
    Statement of the Case.
    Action by Martin Mattingly, administrator of the estate of James Mattingly, deceased, against 0 ’Clara Coal Company to recover damages resulting from the death of deceased while working in defendant’s coal mine. The declaration consisted of three counts. The first count alleged that defendant permitted the roof of the mine where deceased was working to remain in dangerous condition and that it failed to place, a conspicuous mark at the place of danger. The second count charged, in addition to the first, that defendant failed to withhold the entrance check of deceased, and the third count charged common-law negligence in not furnishing deceased a safe place to work. From a judgment entered on a verdict in favor of plaintiff for seven hundred and fifty dollars, defendant appeals.
    M. S. Whitley, for appellant.
    James B. Lewis and Robert E. Choisser, for appellee.
    Abstract of the Decision.
    1. Mines and minerals, § 176

      -—when recovery for death resulting from dangerous condition of roof of mine sustained by the evidence. In an action for the death of a miner resulting from a fall of a piece of slate from the roof of the mine, where the questions raised were whether the roof of the mine was in a dangerous condition and whether such dangerous condition could have been ascertained by a reasonable careful examination on the part of defendant made at the usual time required by law, held that a verdict for plaintiff was sustained by the evidence.
    2. Death, § 64

      —sufficiency of proof of pecuniary loss. In an action for wrongful death, proof that deceased contributed to the support of both his father and mother held sufficient to sustain a verdict for more than nominal damages.
    3. Death, § 80

      —when error in admission of evidence harmless. Admission of evidence relating to the pecuniary condition or ability of certain next of kin of deceased to perform labor, held not reversible error, where the evidence was afterwards withdrawn by plaintiff and the jury was instructed not to consider the same, and it appeared from the amount of the verdict that the jury obeyed the instruction.

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

   Mr. Justice Higbee

delivered the opinion of the court.


text:
    Laura Staley, Administratrix, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Master and servant, § 98a

      —mode of process under Workmen’s Compensation Act. Section 5% of the Workmen’s Compensation Act (J. & A. j[ 5454), in force May 1, 1912, giving a person entitled to compensation the right to file a petition to a court to have compensation paid in a lump sum, does not rely on the General Practice Act but is complete in itself in regard to the means to be employed to bring interested parties into court.
    2. Master and servant, § 98a

      —right to file petition for lump sum under Workmen’s Compensation Act. It is not necessary to proceed under section 10 of the Workmen’s Compensation Act, J. & A. If 5459, before filing a petition to have compensation awarded in a lump sum, where the amount of compensation to which petitioner is entitled under the law is not disputed.
    3. Master and servant, § 98a

      —Workmen’s Compensation Act as affected by Federal Act. Workmen’s Compensation Act of 1912 applies to employes injured while engaged in an act of interstate commerce; such act is not in conflict with the Federal Act and was not designed to cover the same field.
    4. Master and servant, § 98a

      —amount to be awarded on petition for a lump sum. On petition under the Workmen’s Compensation Act of 1912 for payment of compensation in a lump sum, where it would appear to be to the best interest of both parties, the amount to be awarded should be the present worth of the sum to which the petitioner would be entitled under the law and it would appear that the provision of the new Compensation Act of 1913 would afford a reasonable rule for ascertaining such value.
    Appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed May 1, 1914.
    W. W. Barr, C. E. Feirich and Kagy & Vandervort, for appellant; W. S. Honton, of counsel.
    Noleman & Smith, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.

This is a proceeding under the Workmen’s Compensation Law of this State, in force May 1, 1912 (J. & A. ¶¶ 5449 et seq.), brought by Laura Staley as administratrix of the estate of her deceased husband, Sylvester C. Staley, who was run over and killed by one of appellant’s switch engines in its terminal yards near Centralia, Illinois, where he was employed on March 28, 1913.

Appellee on May 19,1913, which was one of the days of the April term of the Circuit Court of Marion county, Illinois, presented her petition asking for an order on appellant to pay her the compensation due her on account of the death of her said husband in a lump sum, and also that an order be entered directing the character and time of notice to be given to appellant in said proceeding and requiring an answer to said petition. Thereupon, the court set May 28, 1913, one of the days of said term, for a hearing and ordered a copy of the petition and said order to be served upon appellant within three days. The petition set out the appointment of appellee as administratrix and alleged that deceased was on March 28, 1913, and for more than a year prior thereto, employed by appellant as a machinist at a compensation of $100 per month; that appellant was at the time operating a railroad line from the city of Chicago in the State of Illinois, through the city of Centralia in the county of Marion to the city of Cairo in said State and elsewhere, together with divers machine shops and roundhouses wherein its locomotive engines were from time to time repaired; that said business was comprehended within the scope and meaning of the act under which the suit was brought, and that at the time the said Sylvester C. Staley received the injury which caused his death he was engaged in work and labor under said act and subject to the provisions thereof. The petition set out the occurrences leading up to the accident in detail, and further stated that deceased left surviving him his said widow and two sons, aged five and seven years respectively, to the support of all of whom he contributed; that under the statute they are entitled to the sum of $3,500; that should said sum be paid to her in instalments, appellee would not be able to support herself and children; that she desires to return to her former home in Buffalo, New York, where her friends and acquaintances live, and that she feels confident if said sum of $3,500 should be paid to her in a lump sum, she can invest the same so that in connection with her own services she will be able to preserve said principal sum intact and provide a living for herself and two children out of the income therefrom, and she asked that it be so paid to her.

Appellant filed a limited appearance asking the court to cancel the setting of the cause and continue the same until the next term of court for the reason that the petition was filed during the term of court and no notice or summons was served upon appellant a.t any time prior to the first day of the term of court, but this motion was denied. Appellant then answered, admitting the employment of deceased but denying that he received wages to said amount. The answer further admitted that it was engaged in operating a railroad line and that it was comprehended within the scope and meaning of said act. It denied, that Staley’s death was caused by accident arising out of his employment or that he was in the discharge of his duties at that time, or that it was guilty of negligence in causing his injuries. It denied that appellee was entitled to said amount of $3,500, or that she had a right to maintain said proceeding, until the amount due as compensation should be determined, either by agreement or by arbitration as provided by said act. It further stated that even if appellee was entitled to said sum of $3,500, yet, under the act, said sum should be paid in monthly instalments over a period of eight years and that the lump sum payment contemplated in said statute could, in any event, amount only to such a sum as should be determined to be the present cash value of the deferred payments to he made, as provided, during the eight years; that in arriving* at said sum there should be taken into consideration the interest, not only of appellee but also of appellant; that there should also be taken into consideration the value to the appellant of the use of the money to be paid in the deferred payments extending over the period of eight years, the contingency of the death of the beneficiaries and all other contingencies which might arise to effect the value of the compensation, if any, which might be directed to be paid in a proper proceeding for that purpose. It denied that it would be for the best interest of appellant to be required to pay a lump sum to the appellee.

Appellee afterwards filed an amended petition placing the wages at $111 a month and alleging that appellant offered to pay the sum of $3,500 in instalments equal to one-half of deceased’s average wages at the same intervals at which his wages were paid while living, that is monthly; that she had opportunities for engaging in business at her former home, Buffalo, New York, and that in case said sum of $3,500 was paid to her in a lump sum she could invest a portion of it in connection with said business and thereby earn a livelihood for herself and children. Appellant further answering denied the amount of wages were stated correctly and averred that it was engaged in interstate commerce and that its business was not comprehended within the scope and meaning of the act in question. It denied it had proposed to pay said sum in the manner stated or had offered to pay appellee any sum except by way of compromise and averred that appellee had no right to proceed under her petition to have any amount paid to her in a lump sum until whatever amount she was entitled to should be determined in accordance with the provisions of section 10 of said act (J. & A. ¶ 5459), providing for arbitration.

The proofs for appellee, no evidence being offered for appellant, show deceased was working in appellant’s switch or terminal yard as a machinist and it was his duty to repair the switch engines used in the yards. On the day of the accident he was sent out in the yards to repair the whistle rod on an engine. As he went down the switch track he saw the engine coming towards him and stepped over on another track where he was struck by another engine and killed. The engine that struck him was a switch engine used for transferring both state and interstate freight cars. His average earnings were about $100 per month.

The insistence of appellant here is, among other things, that there was no agreement as to the amount due and whatever amount was offered appellee was by way of compromise, and not being accepted in no way binds appellant in this proceeding. Also that the case should not have proceeded to trial over the objection of appellant at the term at which the petition was presented, but that there should have been a summons issued and served ten days before the first day of the term of court at which the cause could be heard, and that before a proceeding would lie under the statute to compel appellant to pay any sum in a lump, the amount appellee is entitled to must be determined under section 10 of said act. Section 4 of the statute in question, in fixing the amount of compensation to be paid, provides: “If the employe leaves any widow, child or children or parents or other lineal heirs, to whose support he has contributed within five years previous to the time of his death, a sum equal to four times the average annual earnings of the employe, but not less in any event, than $1,500 and not more in any event, than $3,500” (J. & A. ¶ 54-52). In this case the proof was that a sum equal to four times the average annual earnings of deceased would amount to about $4,800, so there can be no question as to the right of appellee to recover the limit fixed at $3,500 in this ease, if anything.

Section 5½ of the act provides: “Any person entitled to compensation under this act or any employer who shall lie bound to pay compensation under this act, who shall desire to have such compensation or any part thereof paid in a lump sum, may petition any court of competent jurisdiction of the county in which the employe resided or worked at the time of disability or death, asking that such compensation be so paid and if upon proper notice to the interested parties and a proper showing made before such court, it appears to the best interest of the parties that such compensation be so paid, the court shall order paymenl of a lump sum.” (J. & A. ¶ 5454.) The filing of the petition under this act is a special statutory proceeding and provides therein the manner in which parties may come and be brought into court, and the court is thereby given jurisdiction to determine whether the payment due under the act shall be made in a lump sum or not. It is competent for every State to prescribe by statute the mode for bringing parties before its courts. Welch v. Sykes, 8 Ill. 197; Nelson v. Chicago, B. & Q. R. Co., 225 Ill. 197. Said section of the act in question does not rely on the General Practice Act, but is complete in itself in regard to the means to be employed to bring interested parties into court and is intended to afford a ready hearing with little formality and no unnecessary delay. To hold otherwise would be to unnecessarily hamper the administration of the law by unreasonable delay. The court rightfully proceeded to hear the case at the term at which the petition was presented upon compliance with its rule in regard to the giving of notice to appellant.

Section 10 of the act provides: “Any question of law or fact arising in regard to the application of this law in determining the compensation payable hereunder shall be determined either by agreement of the parties or by arbitration as herein provided. In case any such question arises which cannot be settled by agreement, the employe and the employer shall each select a disinterested party and the judge of the county court, or other court of competent jurisdiction, of the county where the injured employe resided or worked at the time of the injury, shall appoint a third disinterested party, such persons to constitute a board of arbitrators for the purpose of hearing and determining all such disputed questions of law or fact arising in regard to the application of this law in determining the compensation payable hereunder.” (J. & A. ¶ 5459.) Said section further provides that both the employe and employer shall submit their proofs to said board and that the report of the arbitrators shall be filed by them with the State Bureau of Labor Statistics, and shall be binding upon both parties to the proceeding, and also provides for an appeal from such award to the court which appointed the third arbitrator. In this case there could be no dispute between the parties concerning the amount of the compensation to be paid to appellee.

Under the uncontested facts, appellee was entitled to the maximum amount allowed by law, which was $3,500, and the proofs show that appellant recognized its liability to pay her that amount, the only question being as to whether or not it could be paid in a lump sum, and that was the question which was submitted to the court in this proceeding. Neither party sought an arbitration concerning the compensation to be paid and under the circumstances it was not necessary before commencing this proceeding.

It is further contended by appellant that the decedent was, just prior to his death, engaged in interstate commerce and that the said Employers’ Liability Act of Illinois is superseded by the enactment of Congress. Waiving the question whether decedent, just prior to his death, was really engaged in an act of interstate commerce, we are of opinion that the two acts are not in conflict nor do they seek to occupy the same fields. The Federal Act was one designed to operate upon and in a manner regulate commerce among the several States, and it was sustained by the Supreme Court of the United States because it tended to promote commerce and related to the instruments by which interstate commerce was carried on. Second employers’ Liability Cases, 223 U. S. 1. This Statute does not in any manner seek to affect commerce, nor does it affect the employe while he is engaged in the act of commerce, but it is designed to provide for him while he is incapacitated by reason of injuries received in the course of his employment, or, in case of his death under such circumstances, to provide for his immediate family or for collateral heirs dependent upon him, or, if he leaves none of these, to provide for his burial expenses. There is no good reason why each act should not operate in the field it is designed to cover.

The last question to be considered, and the one which appears really to be the object of this controversy, is whether the court below had power under the State act to order the whole of the sum of $3,500 to be paid to appellee in a lump sum. The statute, as above set forth, provides that any person entitled to compensation under the act, and any employer who shall be bound to pay that compensation, who desires to have the same or any part thereof paid in a lump sum, may petition the court for that purpose and if, upon proper notice to interested parties and a # proper showing made before the court, it appears to the best interest of the parties that such compensation be so paid, the court shall order payment of the same in a lump sum. This provision places the person entitled to compensation and the employer upon the same plane and apparently makes the same rule applicable to both. Appellee made proof tending to show that it was for her best interest to have the amount paid in a lump sum, and the finding of the court that such was the case can readily be acceded to, but appellant, while apparently not opposing the entry of an order which would require it to pay the whole of its indebtedness at once instead of making monthly payments, contends that it is against its best interests and unjust to require it to pay the full sum "of $3,500 at once instead of paying the same in instalments at the rate of about $50 per month, as it would otherwise be required to pay under the law. It urges in effect that the proper amount to be paid in a lump sum would be the present worth of $3,500 to be paid in instalments as aforesaid over a term of years, when all the circumstances and contingencies are taken in consideration. It requires no argument or citation of authorities to show that the payment of $3,500 distributed in monthly instalments over a number of years is less burdensome in a financial way upon appellant than the payment of the full amount in a lump sum at the beginning of that period. The mere matter of the use of the money required to make the deferred payments until such payments were made would be a material item regardless of other contingencies which might -occur to the benefit of appellant. The court should not arbitrarily order the full amount to be paid in a lump sum against the pecuniary interest of the employer when the statute plainly provides that before the order can be made it must appear to be to the best interest of the parties, the employer as well as the beneficiary. We are inclined to the belief, however, that the trial court might, within the limits of the law, order an amount paid to the beneficiary in a lump sum, which would be equal to the present value of the total amount distributed in instalments over the whole number of years when all the circumstances are considered. What this amount should be is probably not altogether easy of ascertainment, but in that connection it is of interest to consider a similar provision in the Employment Act of June 28, 1913, which repeals the act we have under consideration. Section 9 of the new act provides for a petition to the Industrial Board, established by the act, for the payment of compensation in a lump sum under conditions substantially the same as those providing for the presentation of the petition to the court under the act under consideration, but it also further provides that if “it appéars to the best interest of the parties that such compensation be so paid, the board shall order the commutation of the compensation to an equivalent lump sum, which commutation shall be an amount which will equal the total sum of the probable future payments capitalized at their present value, upon the basis of interest, calculated at three per centum per annum with annual rests. ’

This provision of the new law would seem to afford a reasonable rule for ascertaining the value of compensation to be paid in a lump sum, which might be properly applied in determining the' amount due under similar circumstances by the terms of the old law.

The judgment order in this case will be reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.


text:
    Jesse R. Smith, Appellee, v. C. W. Stilley, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Franklin county; the Hon. Jacob R. Creighton, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1914.
    Statement of the Case.
    Action by Jesse R. Smith against C. W. Stilley in assumpsit to recover $221.40 which plaintiff claims defendant agreed to pay him to reimburse him for money he had paid out in perfecting the title to certain lands. The jury returned a verdict against defendant for $110.70, just one-half the amount sued for, and the court entered judgment for that amount. To reverse the judgment, defendant appeals.

      Appellant urges as ground for reversal: (1) That the verdict was not sustained by the proofs; and (2) that the amount fixed by the jury shows that the verdict was a compromise for which there was no foundation in the facts.
    Hart & Williams, R. E. Hickman, Thomas J. Layman, and Moses Pulverman, for appellant.
    Mooheyham & Seeber, for appellee.
    Abstract of the Decision.
    1. Contracts, § 385

      —when evidence sufficient to prove agreement. In an action in assumpsit to recover a sum which plaintiff claimed the defendant agreed to pay him to reimburse him for money expended in perfecting title to certain lands, where the defense was that no such promise was made, a verdict for plaintiff held sustained by the evidence.
    2. Appeal and error, § 1258

      —right to complain of amount of verdict. A defendant cannot be heard to object to a verdict because the amount allowed the plaintiff was less than the evidence showed was due him; plaintiff alone in such case is entitled to complain of the smallness of the verdict.

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

   Mr. Justice Higbee

delivered the opinion of the court.


text:
    B. E. Buckley, trading as Colonial Mercantile Agency, Appellee, v. R. H. Robertson, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1914.

      Statement of the Case.
    Action by B. E. Buckley, trading as Colonial Mercantile Agency, against B. H. Bobertson, on a promissory note for fifty dollars, payable to the Colonial Mercantile Agency and signed by the defendant. The defense was, failure of consideration for the note. From a judgment entered in favor of plaintiff on a directed verdict at the conclusion of all the evidence, defendant appeals.
    Noleman & Smith, for appellant.
    Bundy & Wham, for appellee.
    Abstract of the Decision.
    1. Bills and notes, § 434

      —when rejection of testimony offered to prove failure of consideration not error. In an action on a promissory note given by defendant to plaintiff for the right to share the benefits of plaintiff’s Mercantile Agency, where the defense was failure of consideration, rejection of testimony offered to show that a representative of plaintiff at the time of making the contract stated that the Agency had ability to collect desperate claims and that it had facilities for collecting claims in every State and town, held not error where the offer contained no proposal to show that such representations were false.
    2. Bills and notes, § 434

      —when testimony to prove failure of consideration inadmissible. In an action on a promissory note given by defendant to plaintiff for the right to share the benefits of plaintiff’s Mercantile Agency, where the defense was failure of consideration, “sustaining an objection to a question asked of defendant as to whether the Agency had a representative in a city where defendant conducted his business, the proposal for the testimony being to show that an agent of the Agency had said that the Agency had facilities for collecting claims in every city and town, heh} not error since the representations of the agent could be true whether the Agency had a representative in such city at the time or not, and it further appearing that the list of defendant’s debtors sent to plaintiff did not contain the address of all the debtors, that the contract was still in force and that there was no time fixed for the making of collections.

      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. Trial, § 93 —necessity of specific objection to evidence. Objections on a trial to a paper or other evidence must be specifically pointed out so that it may be obviated if possible.

4. Bills and notes, § 479 —when party cannot complain of want of proof of ownership of note. Where defendant in an action on a note objected to plaintiff’s proof of his ownership of the note and the objection was sustained, he cannot complain of want of such proof.


text:
    Steve Knopp, Appellee, v. American Car and Foundry Company, Appellant.
    Master and servant, § 98a

      —when servant is injured in the course of employment under Workmen’s Compensation Act. Where a workman while engaged with others in operating a trip hammer attempted to remove a tin can placed on the lower die by a bystander and his hand was crushed, held that the injury sustained arose out of and in the course of his employment within the meaning of section 1 of the Workmen’s Compensation Act, in force May 1, 1912, J. & A. ¶ 5449, though the bystander placed the can on the die for fun, it appearing that the workman took no part in the fun but proceeded to clear the die of the obstruction so that he could continue the work.
    Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed as modified.
    Opinion filed May 1, 1914.
    D. E. Keefe, for appellant.
    W. L. Coley and A. K. Johnson, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.

This was an appeal from a proceeding arising- under the Employers’ Liability Act in force May 1, 1912. (J. & A. ¶¶ 5449 et seq.) Steve Knopp, appellee, while working for appellant Company had his right hand so badly mashed by a trip hammer that it had to be amputated. Appellee presented a petition for an arbitration and each party having selected an arbitrator, the County Court at their request selected a third, thus forming a board to arbitrate the matter in accordance with the provisions of said act. From their award an appeal was taken to the Circuit Court of Madison county, where the case was heard by the court without a jury and an order entered finding appellee was entitled to compensation to be paid by appellant at the rate of $5.25 a week for a period of eight years. It is conceded on this appeal that the court erred in the amount of the award allowed and it is agreed that the proper amount should be $2.85 a week instead of $5.25 and appellant consents that if this court finds appellant is liable to pay compensation under the facts in the case to appellee and that the finding of the court below in that respect be affirmed, judgment may be entered here for the correct amount.

Section 1 of the statute (J. & A. ¶ 5449), under which this proceeding was instituted, provides for the payment of compensation by an employer “for injuries sustained by an employe arising out of and in the course of the employment,” and the only question presented to us on this appeal is whether or not the injury to appellee arose out of and in the course of the employment in which he was engaged.

The circumstances surrounding and leading up to the injury appear from the proofs to be as follows: Four persons, Tom Dubish, who had charge of the work, an Italian whose name was not known, appellee and a boy, were on December 2, 1912, engaged in operating a trip hammer in appellant’s manufacturing works at Madison, Illinois, straightening rods. The rods which were ten to sixteen feet long were picked up by Dubish and the Italian and placed under the trip hammer in order that any bends or crooks there might be therein could be straightened out. The trip hammer had a lower stationary die about twelve to fourteen inches square, and above this was a movable die that came down on it with great force when tripped by a lever which was operated by the boy on a signal from Dubish. It was the duty of appellee when the }'od was placed under the lower die to steady the same with a piece of hoop iron about thirty inches in length which lie held in his hand, so that the part of the rod which was crooked or bent would be directly under the upper die and thus receive the blow or impact when it descended. If there was more than one crooked place in the rod it would be shifted from point to point on the lower die and appellee would continue to hold it in place while the upper die descended and the rod was straightened. While, on the date mentioned, the four were engaged in performing their duties as aforesaid, another workman, Mike Novak, who was employed at a drill some twenty or thirty feet away and was not working in connection with the party at the trip hammer, “Just to have some fun,” as he testified, stepped up and put a tin can on the lower die, where • it would be struck by the upper -one when it descended. Appellee was in reach of the can and knocked it off with his stick and shortly afterwards Novak put it back again and ran away. This time appellee attempted to knock off the can with his hand and while so doing the upper die descended, his hand was crushed and the injury resulted in the amputation of the same at the wrist.

The question is whether appellee was at the time he removed the can attending to duties arising out of and in the course of his employment. There are no precedents guiding us in the reported opinions of this State in the determination of this question, by reason of the fact that the law under which this proceeding is brought was so recently enacted. In England, however, where a law containing a similar provision to that in question here has been in force since 1897, an opportunity has been given for the construction of many of its provisions by the courts. Appellant refers to a number of these cases as sustaining his position that the injury to appellee was not received in the course of his employment. A consideration of the cases referred to, however, plainly shows that there can be no inflexible rule governing this question, but that each case must depend upon the circumstances attending it. In this case, appellee at the time he was injured was engaged in attending to his ordinary duties, the prosecution of which would necessarily require him to remove any obstacle which might at any time be upon the lower die, regardless of the manner in which it came there. Had appellee, on going to work in the morning, found something on the lower die which interfered with his work, it would no doubt have been his duty to remove it, and if injured in doing so he would properly be entitled to the protection of this law. How can his rights be effected by the fact that the man who placed the can on the die says he did so “just to have some fun.” So far as the proper continuance of the work was concerned, it was immaterial whether the obstruction was placed there by Novak for fun or was placed there by some one by mistake or came there through some accident. Had Knopp been engaged in joking with Novak or playing with Turn and in carrying on their pranks, Novak would put the can on the die and Knoop remove it, both entering into the spirit of the transaction in concert, it may be that appellee could not be held to have received his injury in the course of his employment. But in this case appellee took no part in the joking himself, but proceeded to clear the die of the obstruction upon it so that he could continue the work he was employed by appellant to do, and what he did was for the benefit of his employer.

The proofs appear to us to show plainly that the injury sustained by appellee arose out of and in the course of his employment and that he is entitled to the benefit of the law under which the proceedings were brought.

The judgment of the court below sustaining the claim of appellee is hereby affirmed, and by consent of the parties the same is modified here so as to provide for compensation at the rate of $2.85 a week instead of $5.25 a week as fixed in the court below. The judgment will further provide that appellant pay the costs of this suit.

Judgment affirmed as modified.


text:
    Illinoi W. Hess by B. F. Kagy, Conservator, Appellee, v. Marvin J. Griffith, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Fayette county; the Hon. Jambs C. McBride, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1914.
    Statement of the Case.
    Proceeding upon a hearing of objections filed to the final report of Marvin J. Griffith as conservator of Illinoi W. Hess, an insane person. The hearing was had in the Circuit Court of Fayette county where the case had been transferred from the County Court by agreement of the parties. It appeared that Griffith was appointed conservator of Mrs. Hess Aug. 8, 1904, when she was adjudged insane and that afterwards she was duly adjudged restored to reason and that Griffith filed his final report on July 1, 1912, having acted as conservator from his appointment to that date. The court found that a just and reasonable compensation to the conservator for his services was $750, an amount equal to $100 a month for the first seven and one-half months, and an amount equal to $200 a month for the balance of the time, making a total of $18,250 for his services for seven years and eleven months. The court also found that the conservator had received interest at the rate of six per cent, per annum on the funds of the estate during said period, and had only accounted for three per cent, in his annual reports, retaining the balance, amounting to $30,907 as compensation; that deducting the amount found to be due as reasonable compensation from the amount retained by him there was a balance of $12,-657.39 in the hands of the conservator not accounted for by him; that there was no evidence that the amount paid out by him for attorneys’ fees was unreasonable; that the objection to each report as to the compensation allowed or retained by the conservator for his compensation was sustained, and it was ordered that the conservator pay to Illinoi W. Hess said sum of $12,657.39, with five per cent, interest thereon. From the order so entered, the conservator appeals.
    Appellant urges as ground for reversal: (1) That as there was no fraud, concealment or mistake connected with the annual reports made by him, there can be no review of the same on a final hearing; (2) that Mrs. Hess being rational and having a true comprehension of her business affairs and knowing and agreeing to appellant’s charges cannot be heard to object notwithstanding he was acting as conservator; (3) that three per cent, per annum was a reasonable and just compensation for the services rendered by him and that he should be permitted to retain that amount.
    Brown & Burnside and Noleman & Smith, for appellant.
    Albert & Matheny and Will P. Welker, 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. Insane persons, § 29 —when failure of conservator to include interest in his report constitutes actual fraud. Where a conservator receives a large amount of interest and fails to include the same in his annual report and retains the omitted interest, such constitutes a legal fraud against the ward, though the court approved the report and though the conservator did not intend any actual fraud.

2. Insane persons, § 29 —conclusiveness of annual reports made by conservator. Annual report made by a conservator, while prima facie correct, do not prevent a full investigation of his accounts when he presents his final report and asks for a discharge, nor is the court prevented from causing the conservator’s accounts to be recast because of the fact that the ward signified her satisfaction with his conduct and her desire to have him continue in the transaction of her business.

3. Insane persons, § 30 —when compensation allowed conservator is reasonable. An allowance to a conservator of $18,250 for services during seven years and eleven months, held a reasonable compensation, in view of the evidence, such sum being more than one per cent, per annum on the estate managed by


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    Road District No. 3, County of Wabash and State of Illinois, Appellees, v. Drainage District No. 10, County of Wabash and State of Illinois, Appellant.
    1. Mandamus, § 136

      —sufficiency of petition to compel drainage district to replace bridges. A petition for a writ of mandamus to compel a drainage district to replace and rebuild three bridges made necessary by the prosecution of work of the district, held not defective on demurrer for the reason that it did not state the material of which the bridges should be constructed, nor because there was no allegation that the drainage district has the means with which to build said bridges.
    2. Mandamus, § 172

      —certainty of judgment. A judgment in a proceeding for mandamus to compel a drainage district to build bridges, commanding the district to forthwith build certain bridges and necessary approaches thereto, described in the petition, held sufficiently certain as to what bridges and approaches were referred to.

      Appeal from the Circuit Court of Wabash county; the Hon. Jacob R. Creighton, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1914.
    E. B. Green and Theo. G. Risley, for appellant.
    H. M. Phipps, for appellees.

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

   Mr. Justice Higbee

delivered the opinion of the court.

Appellees, Boad District No. 3 of the County of Wabash and State of Illinois and E. M. Dean and E. G. Case, taxpayers in said district, filed a petition for a writ of mandamus against Drainage District No. 10 of the same County and State, appellant, to compel said drainage district to construct three certain bridges in said road district.

The original petition filed by appellees was demurred to and the demurrer sustained, after which an amendment was filed. The petition as amended alleged that there were three bridges crossing three public highways in said road district which it was necessary to replace with new bridges and that the cost of building and replacing each of the same would cost one hundred dollars; that said drainage district was organized under an act of the General Assembly of the State of Illinois, entitled, “An act to provide for drainage for agricultural and sanitary purposes, etc.,” in force July 1, 1885, and amendatory enactments thereto, commonly known as the Farm Drainage Act; that appellant cut a certain drainage ditch across and through the public road of said Boad District No. 3 and thereby rendered said road impassable and impaired for public use; that it thereby became the duty of said drainage district to replace and rebuild said bridges and to keep and maintain the same in such condition that they might be serviceable to the public at the places over said drainage district where the drainage ditch crosses said public road; that said bridges were necessary by reason of said ditch having destroyed and impaired the use of the public highways at the places where it crosses the same; that said ditch was not cut by said drainage district in a natural water course. The petition then designates three places in said drainage district where the ditch crosses the highway, and where, by reason thereof, bridges and approaches are necessary to be constructed, specifying in each case the width of the ditch and the length of the bridge necessary at that point and further aver that they have demanded of appellant’s drainage commissioners that they construct and build said bridges and that said commissioners wholly neglect and refuse to build the same or either of them, claiming that it is not their legal duty to construct said bridges, but that it is the duty of the road commissioners to build and construct the same at the expense of said road district. Appellees therefore pray that a writ of mandamus may be issued directed to said drainage commissioners, commanding said drainage district forthwith to build and construct said bridges and each of them and that such further order may be made in the premises as justice may require. Appellant demurred to the amended petition and its demurrer having been overruled, it elected to stand by.the same, and after-wards a judgment order was entered by the court, directing a peremptory writ of mandamus to issue, commanding appellant to forthwith build the bridges and necessary approaches thereto described in the petition and that appellee have and recover of appellant its costs and charges in the case.

Appellant claims that the amended petition was insufficient for the reason that it does not appear therefrom whether it was its purpose to compel the drainage district to rebuild and restore the three bridges removed for the purpose of cutting the ditch across the three highways or to compel the construction of three bridges and approaches at points where there had been no bridges before the cutting of the ditch; and also because it did not state the particular kind or description of the bridges which it was the duty of the drainage district to build nor the material which should be used in their construction. It is a familiar rule, as properly claimed by appellant, that a writ of mandamus ought not to be awarded unless the petition shall show a clear legal right to have the thing sought by it performed, and that it should be done in the manner and by the person or body sought to be coerced. People ex rel. Rinard v. Town of Mt. Morris, 145 Ill. 427; Swigert v. County of Hamilton, 130 Ill. 538; Highway Com’rs of Yorktown v. People ex rel. Bonker, 66 Ill. 339.

Section 40 of the Farm Drainage Act (J. & A. ¶ 4516) provides that “commissioners shall have the right to use any part of the right of way of any public highway for the purposes of the work to be done provided such use will not permanently destroy or materially impair such public highway for public use,” and section 40% (J. & A. ¶ 4517) further provides: “The commissioners shall have the power and are required to make all necessary bridges and culverts along or across any public highway or railroad which may be deemed necessary for the use or protection of the work.”

In the case of Highway Com’rs Town of Bement v. Lake Fork Spec. Drain. Dist. Com’rs, 246 Ill. 388, it was held under the provisions of the statute above referred to that where drainage commissioners undertake to make a change in a highway where the drains of the district cross the highway by widening and deepening the drains of the district, it is the duty of the drainage commissioners when the repairs were completed to restore the bridge and highway to a condition which would make the highway fit for public use as a highway; and the fact that in restoring the bridge it would be necessary to lengthen it so that it would span the increased width of the drain would not relieve the drainage commissioners from the duty of rebuilding said bridge. The petition in the case before us stated that there were three bridges crossing public highways in the drainage district, which were necessary to be replaced and rebuilt by reason of the work prosecuted by the drainage district. This language of the petition seems plainly to show that the bridges which had been at the places named had been removed, and under the authority of the case above referred to it was the duty of the drainage commissioners to restore said bridges and mandamus would lie therefor. We do not think it necessary that the petition should state the material of which the bridges should be constructed nor that the order of the court should provide therefor, as that is a matter which must be largely left to the discretion of the drainage commissioners. The further contention of appellant that the amended petition is defective because there is no allegation in it that the drainage district has the means with which to build said bridges and approaches and no tax assessment is demanded does not appear to us well founded. The drainage statute provides that before a ditch shall be dug the drainage district shall make estimates of cost connected with the work, and as such district is required to pay the expense of replacing bridges removed by it, such as those in question here, the estimate of the cost must include such work. In Highway Com’rs Town of Bement v. Lake Fork Spec. Drain. Dist. Com’rs, supra, it is said in speaking upon this subject: “A method, therefore, is found in the Farm Drainage Act whereby the drainage commissioners of a district organized under that act can obtain a fund with which to pay for constructing bridges over the drains of the district when they cross public highways, and the commissioners are authorized to use the public highways for the purpose of the work to be done, provided they do not permanently destroy or materially injure the highways for public use, and it is made the duty of the drainage commissioners to erect all necessary bridges along or across any public highways which may be necessary for the protection of the .work and to keep the drains of the district in repair.”

The amended petition in this case presented sufficient facts to warrant the court below in overruling the demurrer and in ordering the writ to issue.

It is further claimed by appellant that the judgment of the court below is too uncertain and indefinite to justify its enforcement by the issuing of a peremptory writ of mandamus upon it. This objection is based upon the fact that the judgment order commands the drainage district to construct the bridges and approaches “as described in the petition” but that neither the bridges nór approaches are described in the petition. A reading of the petition, however, demonstrates that the location of the bridges and theii necessary length are described and the construction of proper approaches is demanded. The details, like the material to be used and the manner of constructing the bridges and approaches, must, as above indicated, be to a large extent left to the discretion of the drainage commissioners and need not be set out with particularity.

It is also contended by appellant that the judgment is insufficient because it is not complete in itself, but refers to the petition for a description of the act required to be done, and in support of this contention, appellant refers to the People ex rel. Village of Burnham v. City of Chicago, 146 Ill. App. 623, where it is said: “The judgment in mandamus is like the judgment in any other proceeding at law. It should be clear and complete in itself. ‘The respondent should not be required to look beyond the writ to ascertain the precise acts which he is required to perform. ’ ” This is undoubtedly the general rule, and the only question is as to its application. In the case last referred to, the judgment provided that the writ should issue when a certain notice was given by the relator, a village, that it was ready to receive water which it was demanded should be furnished to it. The court there held that this judgment was not complete and that it left the defendant at the mercy of the relator, which might serve the notice when it was not ready to receive the water and no practical or substantial bene-! fits would follow, and also left it to the judgment of the' clerk of the court to determine the sufficiency of the notice and the service thereof. In this case, however,! the judgment commands appellant to forthwith build the bridges and necessary approaches thereto, described in the petition. It may reasonably be supposed that the writ when issued would describe the bridges and approaches as set forth in the petition, but if they! did not, but used only the language of the judgment, we' think that sufficient in this case where the whole proceeding showed plainly what bridges and approaches, were referred to, and where there was no controversy' about what appellee was demanding in that regard. The judgment of the court below will accordingly be affirmed.

Judgment affirmed.


text:
    The People of the State of Illinois for use of Herman Fleishman, Appellee, v. Charles G. Sowell et al., Appellants.
    1. Official bonds, § 20

      —liability of sureties. Sureties on official bonds cannot be held liable for the acts or defalcations of their principal where such acts or defalcations do not come within the scope of the official duties of their principal, for the performance of which the bond was given.
    2. Official bonds, § 20

      —acts for which principal and sureties are not liable on bond. Where a defendant in attachment, in lieu of giving a forthcoming bond and in order to avoid a levy on his goods, gives to the constable his check payable to the police magistrate and the magistrate thereafter disposes of the proceeds of the check, the magistrate and his sureties are not liable on his official bond for the conversion, for the reason that the act of the magistrate in receiving the money was unofficial and for such acts the sureties on such bond cannot be held liable.
    3. Attachment, § 148

      —right of constable to take forthcoming bond. There is no provision in the Justices’ Act or in the act relating to attachments in courts of record authorizing a constable to take a delivery bond in an attachment proceeding.
    Appeal from the City Court of Granite City; the Hon. Robert H. Flaitntgan, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed May 1, 1914.
    J. B. Harris, for appellants.
    A. R. Johnson and W. L. Coley, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.

This is a suit brought upon the bond of appellant, Charles G. Sowell, a police magistrate of Granite City, Madison county, Illinois, against him and his sureties, W. P. Wilson, Edward Mercer and Edward Pauly, brought in the name of the People for the use of Herman Fleishman, the party in interest. A jury was waived and at the conclusion of the hearing the court rendered judgment against the principal and sureties on the bond for $2,000, to be satisfied by the payment of $84.30, and all of the defendants below have appealed from that judgment to this court.

The facts in the case as stated in the declaration and shown by the evidence introduced for appellee, and as substantially found in the special findings submitted by appellee, and held by the court, were in effect as follows: Charles G. Sowell, on April 1, 1913, was elected a police magistrate for Granite City, Illinois, and afterwards qualified as such, entering into bond in the sum of $2,000, with the other parties who are appellants herein as sureties. The bond was substantially in the usual form prescribed for justices of the peace and constables. Shortly afterwards, the Outcault Advertising Company of Chicago began a suit against appellee to recover $80 claimed to be due it and at the same time caused a writ of attachment to be issued, which was delivered to G. T. Cowgill, a constable of Madison county, to execute. The constable called upon the appellee and to avoid a levy on his stock of goods and ih lien of a delivery bond, appellee made his check upon a bank for $84.30, payable to Sowell, and gave it to the constable. Shortly afterwards, appellee had a conversation with Sowell in which he told him that the check was not given in payment or acknowledgment of the debt but in place of a bond and Sowell agreed that the check should be so held. The constable took the check to Sowell who indorsed it and turned it back to the constable who cashed the same and put the money to his own credit in a Granite City bank. On May 10, 1913, the day set for the trial of the case, appellee obtained a continuance until May 21st and the same was marked on the docket. On May 12th the constable drew the money from the bank and turned it over to Sowell, who applied $4.30 in payment of his own and the constable’s cost, marked the case dismissed upon the docket and paid the $80 to the Outcault Advertising Company. At the same time, Sowell took an indemnifying bond from said Outcault Advertising Company, to keep him harmless from all damages, judgments and costs which he might sustain by reason of disposing of said money as aforesaid. Appellee appeared for trial on May 21st, to which time the case had been continued as aforesaid, and then discovered that the case had been dismissed and the money paid out as aforesaid, and this suit followed.

Appellants claim that the check was given not as a forthcoming bond but in payment in full of the debt, and their position is sustained by the testimony of the constable who took the check and by the fact that the check was given for the exact amount of the debt and cost. This defense was presented by plea No. 5 filed by appellants, which is the plea upon which the case went to trial, a demurrer having been sustained to the other pleas.

Upon a consideration of this case, we find that the only question necessary for us to consider in disposing of this appeal is, did the receipt of the proceeds of the check and the conversion of the same render Sowell and his sureties liable on his bond? While the declaration appears to charge, as an element of damages, the dismissal of the suit against appellee by Sowell, appellee’s counsel in his brief states that appellee is not complaining because Sowell dismissed his suit but because, without according him a hearing on the merits of his case and without notice of any kind, Sowell paid over his money to the plaintiff in the suit, charged him the cost and dismissed the case, in other words took his money and converted it to his own use or the use of another without due process of law. It is provided under the Justices’ Act that “The constable to whom any attachment may be delivered, shall, without delay, execute the same by levying on the personal estate, goods, chattels, moneys, choses in action, credits and effects of the defendant, of value sufficient to satisfy the debt or damages claimed to be due, and all costs attending the collection of the same.” R. S. ch. 79, sec. 76. (J. & A. ¶ 6937.) There is no provision for the taking of a delivery bond under the Justices’ Act but under the “Act in regard to attachments in courts of record” it is provided by section 14 that, “The officer serving the writ shall take and retain the custody and possession of the property attached, to answer and abide by the. judgment of the court, unless the person in whose possession the same is found shall enter into bond and security to the officer, to be approved by him, in double the value of the property so attached, with condition that the said estate and property shall be forthcoming to answer the judgment of the court in said suit.” (J. & A. ¶ 505.)

There is nothing in the general attachment act last referred to which appears to permit the application of its provisions to attachments commenced before a justice of the peace, but even if there were, it would not assist us in the determination of the question presented here as the act does not in any way authorize the officer, to whom the delivery bond may be delivered, to take anything in lieu of such bond. It appears to be a well-settled rule of law in this, as in other States, that sureties on an official bond cannot be held liable for the acts or defalcations of their principal where such acts or defalcations do not come within the scope of the official duties of their principal, for the performance of which the bond was given.

The case of Henckler v. County Court of Monroe Co., 27 Ill. 39, was a suit upon a constable’s bond against the constable and his sureties, where the constable had collected money without suit and failed to pay it over to the party entitled thereto. At that time there was no statute authorizing a constable to make collections in such manner, and the court held that the sureties on the bond could not be held liable for the money so collected by him or for any other unofficial act, but that the creditor must look alone to the constable for the payment of the debt, as to any other agent.

In Orton v. City of Lincoln, 156 Ill. 499, which was a suit on the bond of a city clerk for his failure to account for money collected by him for dramshop license, which under the laws and ordinances he had no right to receive, but which should have been paid in directly to the city treasurer, it was held that the sureties were not liable. In the course of the opinion it is stated: “A surety is only to be held by the precise terms of his undertaking. His liability is strictissimi juris, and cannot be extended by construction or enlarged by the act of others. (People for use of Logan County v. Toomey, 122 Ill. 308.) The undertaking of the clerk was that he would discharge the duties of the office, and account for and pay over all moneys which come to his hands by virtue thereof. For the discharge of that duty the appellants became sureties. When they undertook that the principal should account and pay over all moneys that should come to his hands by virtue of his office, the intendment was that- such money as should be received by the clerk in pursuance of law and under ordinances of the city, in his official capacity, by virtue of his office, was referred to, and not such money as he might elect to accept without right.” The same rule applies in other jurisdictions. In Governor v. Perrine, 23 Ala. 807, it is said: “The scope of the contract of the sureties of a sheriff is, that they will become liable for his defaults in regard to moneys which he receives in his official character as sheriff, acting strictly in accordance with, and in obedience to the law.” The same rule as to the liability of sureties on official bonds is laid down in Cressey v. Gierman, 7 Minn. 398; State v. Long, 8 Ired. (N. C.) 415; State v. Woodman, 36 Ind. 511.

If in this case appellee paid the money in question to the constable in satisfaction of his debt to the Outcault Advertising Company and the same was received by said company from the justice of the peace and the debt was thus liquidated, then appellee has no just cause of complaint and cannot recover in this suit. If, on the other hand, said money was paid by appellee to the constable, to be held by him in lieu of a forthcoming bond for the property attached, then the proceeding was unauthorized as the constable had no authority to receive the money for such purpose, and when the constable paid the money over to the police magistrate Sowell, he could confer upon the latter no lawful right to receive the same. The act of Sowell in receiving the money was unofficial and for such acts the sureties on his official bond cannot be held liable. If there is any liability at all, appellee must look to the police magistrate Sowell alone for the recovery of the money paid by him to the constable and by the latter to Sowell. The judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.