text:
    Lottie Hughes, Administratrix, Appellee, v. Danville Brick Company, Appellant.
    1. Death—family of deceased. In an action for the death of plaintiff’s intestate, an employe of defendant, evidence as to the ages of surviving children, that plaintiff is the widow of deceased, and that deceased supported his family is not erroneous though it is not proper to show pecuniary condition of widow.
    2. Master and servant—when evidence sustains verdict. Where plaintiff’s intestate, an employe of defendant, is directed by a vice principal to go to the top of a boom and place a chain, used in operating a steam shovel, over the top of shive wheels and before intestate is out of the way the vice principal starts the engine, the chain is rapidly pulled over the wheels and the end strikes intestate on the head, resulting in his death, there is no error in refusing to direct a verdict for defendant and a judgment for $6,00.0 will be affirmed.
    Appeal from the Circuit Court of Vermilion county; the Hon. William B. Scholeield, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 18, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    B. J. Folonie and Charles Troup, for appellant; H. B. Bale, of counsel.
    Clark & Hutton and Keeslar & Gunn, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Lottie Hughes, administratrix of the estate of George L. Hughes, deceased, brought this action in case against the Danville Brick Company, a corporation, to recover damages suffered by reason of the death of her husband, George L. Hughes. The original declaration of two counts was dismissed at the close of the plaintiff’s evidence and the case was submitted to the jury on four additional counts. Each of these counts avers in substance and in different forms, that the defendant was operating a steam shovel in its shale pit; that on this shovel was an iron chain 150 feet long, weighing 3,000 pounds, which was operated over shive wheels on the end of a boom which extended about thirty feet into the air; that this chain was connected with an engine which moved the chain over the shive wheels and operated the shovel; that the chain broke and lay on the ground and that George L. Hughes and other servants were employed by the defendant in repairing and replacing the chain over the shive wheels; that J. S. Hofsas, was in charge of the operation of the steam shovel and the repair of said chain and had the direction and control of Hughes and was not his fellow servant, but a vice principal of the defendant and a superior of Hughes; that a cable had been attached to the drum of the engine, passed up the boom, over the shive wheels and down to the ground and attached to the end of the chain; that Hofsas ordered Hughes to the upper end of the boom to thread the cable over the shive wheels so that the engine would wind the cable around the drum and draw up the chain so that it might be repaired; that Hughes in obedience to the command mounted the boom to the shive wheels and while in the exercise of due care Hofsas, the vice-principal, negligently started the engine and caused the cable to be wound around the drum so swiftly that the chain was drawn over the shive wheels so rapidly that the free and broken end of the chain was drawn over the shive wheels with great violence and struck and killed Hughes. One of the counts further avers that Hughes did not know and had not equal opportunity with the defendant of knowing the danger, and that the defendant carelessly failed to give Hughes information of the danger incident to threading the cable over the wheels. Another count further avers negligence in failing to give Hughes notice that the engine was about to be started so that he might dismount from the boom. The other count also avers negligence of the defendant in not causing a tag line, or other means of control to be attached to the free end of the chain to prevent it from running over the shive wheels, and in starting the engine before such tag line was attached; and that Hughes was ordered by the vice-principal, Hofsas, to thread the chain over the shive wheels and that Hughes did not know a tag line was not attached to the chain to control it. Á verdict was returned in favor of plaintiff for $6,000, on which judgment was rendered and the defendant appeals.

It is contended that the court erred in permitting proof to be made by the appellee that Lottie Hughes was the widow of the deceased and that Leslie, Grace and Eva Hughes were the three children surviving him and that their ages were nineteen, sixteen and ten years respectively and that the deceased supported his family. It is not proper to show the pecuniary condition of the widow and family, but it is competent to show that they were dependent on the deceased for support at the time of his death. “It cannot well be said that proof that the wife and next of kin of the deceased were, at and before the time of his decease, dependent on him for support, or that he was her or their whole support, is wholly immaterial and irrelevant to any point at issue in the case.” Pennsylvania Co. v. Keane, 143 Ill. 173; Preble v. Wabash R. Co., 243 Ill. 340; Brennen v. Chicago & Carterville Coal Co., 241 Ill. 610. It has also been held that in fixing damages the jury may take into consideration the matter of the instruction and moral training of the minor children of the deceased so far as the same appears from the evidence. Illinois Cent. R. Co. v. Weldon, 52 Ill. 290; Goddard v. Engler, 222 Ill. 462. It was necessary to aver and prove who were the next kin. The error, if any, in proving the age of the children was therefore harmless.

The contention of appellant most strenuously argued is that under the evidence the appellee is not entitled to recover a judgment and that the court erred in refusing to instruct a verdict for the appellant. The evidence shows that the deceased for some time prior to his death, was employed with other men by appellant to operate a steam shovel. He was acting as craneman, and when the shovel was working his place was on a platform about ten feet from the lower end of the boom, which was about thirty feet long and extended into the air at an angle of about forty-five degrees so that the upper end was about, twenty-five feet from the ground. Hofsas had full power and authority to direct all the men worldng in the steam shovel gang, where to work and what to do. He was also engineer of the steam shovel, and it was his duty to direct all the actions both of the machinery and the men connected with the business of operating the shovel. On the date of the accident a long heavy chain made of inch and quarter iron with the links about six inches long, which was used as a belt , in operating the shovel, broke and a part of it was piled in a heap near the dipper, immediately under the shive wheels at the upper end of the boom over which the chain was operated. Hofsas took the men of his gang, with others from other departments of the business, and attempted to repair the chain. A wire cable an inch and a half thick was attached to the end of the chain and run up over one of the shive wheels and down the boom to the lower end, where it was attached to the drum of the engine so as to draw the chain up over the shive wheels. Hofsas ordered Hughes to go up on the boom to the upper end and thread the chain into the shive wheels when it should be drawn up by the cable. Along the side of the boom was a ladder up which Hughes climbed to reach the upper end of the boom where the shive wheels were located.

Hofsas then went to the engine and started it, pulling one end of the chain up to the upper end of the boom, where the engine was stopped until Hughes threaded it over the wheels by means of a short bar. Hughes and the end of the boom were in the view of Hofsas as he stood at the engine. Hofsas enquired of Hughes if he had the chain threaded and on his replying “yes, ’ ’ Hofsas again started the engine, without giving Hughes an opportunity to get away from the upper end of the boom, and rapidly pulled the chain over the shive wheels. The broken and loose end of the chain flew up over the shive wheels like a whip cracker and struck Hughes on the head, from the effect of which he died in a short time.

It cannot reasonably be contended that it was not negligence to start the engine and pull the chain up over the end of the boom and then down the boom towards the drum so that the part of the chain on the boom, with the action of the engine overbalanced the part of the chain that was suspended from the upper end of the boom, so that the loose end of the chain was flipped up over the end of the boom, either from the action of the engine or the weight of the longer end of the chain along the boom while Hughes was at the upper end of the boom. The ordering Hughes upon the boom to thread the chain and the starting of the engine after it was threaded are so closely connected that the consequences resulting therefrom cannot be separated and the master is liable therefor, Norton Bros. v. Nadebok, 190 Ill. 603; Roebling Const. Co. v. Thompson, 229 Ill. 42. The evidence showing that Hughes was subject to the order of Hofsas and that the acts of Hofsas were those of a vice-principal the court properly refused to direct a verdict for appellant.

It is also assigned for error that the court erred in the giving of one and the refusing of other instructions. The jury were fully instructed on the propositions of law involved and there is no error in appellee’s given instruction of which complaint is made. Finding no error requiring a reversal of the case the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Thompson

license: Public Domain

text:
    B. A. Stewart, Appellee, v. Bloomington, Champaign & Decatur Railway Company, Appellant.
    1. Railboads—what instruction erroneous as to sufficient cattle guards. In an action for the value of a horse killed by an electric car of defendant it is error to instruct that, if the jury believe from the evidence that the horse in question without negligence on plaintiff’s part got upon defendant’s railroad track over a cattle guard maintained by defendant, that the horse got on the railroad on account of the insufficiency of said cattle guard, and that the place where the animal was killed was not at the crossing of a public- highway, nor within the limits of a town, city or village and that said railroad had been open for use for six months or more before the time said animal was killed, then in such case they should find the issues for plaintiff.
    2. Railboads—when cattle guard complies with statute. If a railroad cattle guard is suitable and sufficient to prevent ordinary stock or stock to some extent unruly from getting on the railroad, it complies with the statute and the owner of a horse which passes over such guard on the railroad where it is killed by a car cannot recover.
    3. Railboads—when no recovery on ground that cattle guard is not suitable. If a horse passes over a railroad cattle guard because of its unruly character and not because the guard is not suitable and sufficient to turn stock and not because of the railroad company’s negligence in failing to maintain a suitable and sufficient guard, the owner is not entitled to recover if such horse is killed on the railroad hy a car.
    4. Railboads—what evidence proper as to whether a cattle guard is suitable and sufficient to turn stock. In an action for the value of a horse killed by defendant’s electric car on its right of way because of defendant’s alleged negligent failure to keep and maintain good and sufficient cattle guards, evidence by experienced railroad men that the guard in question is of a standard make and in general use on first class railroads is proper.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myebs, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 18, 1913.
    Livingston & Bach and H. C. White, for appellant.
    N. W. Brandican and Welty, Sterling & Whitmore, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an action in case brought by appellee against appellant to recover the value of a horse killed by one of appellee’s electric cars upon its right of way during the night of July 31, 1910. Appellee avers in his declaration that it was the duty of appellant to keep and maintain “good and sufficient” cattle guards to prevent animals from passing upon appellant’s right of way and that the appellant negligently failed to keep and maintain such good and sufficient cattle guards.

Appellee offered hearsay evidence which tended to show that the horse had been put in his barn lot the evening before it was killed and that it had broken out of the lot on the highway and wandered along the highway to the railroad crossing. There is evidence tending to show the horse passed over the cattle guard on to the railroad where it was killed by a train, but there was no competent evidence on the question as to where the horse was left that evening or how it escaped from appellee. The evidence offered by appellee however tended to show that the horse was not an ordinary animal, but unruly. Since the case must be reversed for the giving of an erroneous instruction we refrain from discussing the merits of the case.

The second instruction given for appellee is: “The court instructs the jury that if they believe from the evidence in this case that plaintiff’s horse in question without negligence on the part of plaintiff, got upon defendant’s railroad track over a cattle guard maintained by said defendant; that said horse got on the said railroad on account of the insufficiency of said cattle guard, and that said place where said animal was killed was not at the crossing of a public highway, nor within the limits of a town, city or village, and that said railroad had been open for use for six mouths or more before the time said animal was killed, then in such case you should find the issues for the plaintiff.” This instruction directs a verdict and tells the jury that if the horse got on the railroad track without negligence on the part of appellee then it got on the track on account of the insufficiency of the cattle, guard. It does not leave to the jury the question whether the cattle guard was suitable and sufficient to turn stock and whether the appellant was negligent in failing to provide a suitable and sufficient cattle guard.

If the cattle guard was suitable and sufficient to prevent ordinary stock or stock to some extent unruly, from getting on the railroad, then'it complied with the statute and there could be no recovery by appellee. If the horse got over the cattle guard not because the cattle guard was not suitable and sufficient to turn stock, and not because of negligence of appellant in failing to maintain a suitable and sufficient cattle guard, but because of its unruly character, then appellee was not entitled to recover. The instruction directing a verdict was erroneous in omitting a material element of the case and in assuming that the cattle guard was insufficient without requiring the jury to find such to be a fact from the evidence.

The appellant offered to prove by experienced railroad men that this particular cattle guard is of standard make and in general use on first class railways. An objection was sustained to this evidence. This evidence was proper as tending to support the contention that the cattle guard in question was suitable and sufficient to turn stock. Lake Erie & W. R. Co. v. Murray, 69 Ill. App. 274. Because of the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    John W. Kuhlman, Appellant, v. Harvey J. Adkins, Appellee.
    1. Insurance—agency. An insurance company by sending a policy to a party to deliver to the insured makes such party its agent to deliver the policy, and an offer by the insured to return the policy to said party is an offer to return it to the company.
    2. Insurance—cancellation of policy. Where the insured tenders the policy back to the agent of the company who delivered it to him, and tells such agent that it is not what he contracted for he does all that is required of him to cancel it.

      Appeal from the Circuit Court of Pike county; the Hon. Habby Higbee, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 18, 1913.
    L. T. Graham and Anderson & Matthews, for appellant.
    W. E. Williams and A. Clay Williams, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

John W. Kuhhnan, began this suit before a justice of the peace to recover the amount of a promisory note for $21.94, dated August 25, 1908, and due on or before May 1, 1909, executed by Harvey J. Adkins, payable tó the order of himself and endorsed by him. An appeal to the circuit court was taken from the judgment before the justice of the peace. A trial before a jury in the circuit court resulted in a verdict for defendant, on which judgment was rendered and plaintiff appeals.

The note was given to one Stevens for the premium on a life insurance policy. Stevens sold the note to appellant a day or two after it was executed. The defense urged against the note is failure of consideration in that it was procured by fraudulent representations of Stevens and that the maker of the note repudiated the policy as soon as he discovered the fraud and that appellant was interested with the insurance agent Stevens in the procuring appellee to take the insurance and give the note and was not an innocent purchaser. The proof shows that one Stevens, an agent of an insurance company, took the note to himself as the first payment on a policy of life insurance and endorsed it to appellant very soon after the note was executed; that Stevens had some previous acquaintance with appellant; that Stevens while soliciting insurance in that vicinity, although there were two hotels in the town, made his home at appellant’s eating and sleeping there without charge;that appellant drove Stevens to see various parties about taking out insurance and with Stevens talked insurance to them; that Stevens made his headquarters at appellant’s place of business and appellant there introduced appellee to Stevens and recommended Stevens and the insurance company that he represented and heard the representations that Stevens made to appellee as to the contract of insurance; that he said to appellee that he carried old line insurance and that the policy was a good one and no other company could give him as good a contract as the one offered by Stevens; the representations were that on a $1,000 policy at the end of twenty years the company would return the $1,000, with at least seven per cent, interest. Appellee by these representations was induced to take a $1,000 policy and gave the note sued on as the first premium. Stevens soon thereafter left the community and the policy was sent to appellant to deliver to appellee. Appellee soon thereafter on reading the policy discovered it was not what he had contracted for with Stevens. He thereupon repudiated it, and offered to return it to appellant at the same time telling him it was not what he contracted for, but appellant would not receive it.

Appellant was by the insurance company made its agent to deliver the policy to appellee and an offer to return it to him was an offer to return it to the company. There was evidence from which a jury might find that appellant was a party to the fraudulent transaction and was not a purchaser of the note in good faith. The appellee having tendered the policy back to the agent of the company who delivered it to him did all that was required of him to cancel it. The evidence sustains the judgment and it is affirmed.

Affirmed.


text:
    Joseph N. Loving, Appellee, v. Michael Kane et al., Appellants.
    1. Brokers—commissions. Where the evidence shows that plaintiff had a written contract with defendants to act as their agent, and induced the purchaser to sign a contract and afterwards another agent acting for defendants made the sale, a verdict for plaintiff for commissions may he sustained.
    2. Evidence—as to negotiations in securing a purchaser for a farm. In an action on a written contract to recover commissions for the sale of defendant’s farm, testimony of the purchaser as to negotiations with plaintiff concerning the purchase prior to the date of ’ the written contract is admissible to show what plaintiff did in securing a purchaser there being evidence that there was a verbal contract before the written one.
    3. Evidence—to show work done by plaintiff in securing purchaser for defendant’s farm. In an action to recover commissions for sale of defendant’s farm, a memorandum made by plaintiff and the purchaser, at the recorder’s office, showing the amounts of the mortgages is admissible in evidence, since it was part of the work done in attempting to make sale.
    4. New trial—nevfly discovered evidence. In an action to recover commissions for the sale of a farm, a new trial is properly denied where the newly discovered evidence only tends to impeach plaintiff and is merely cumulative of other evidence.
    5. New trials—where newly discovered evidence would not lead to different result. A new trial is not granted because of newly discovered evidence, unless it would probably lead to a different result.
    6. Trials—where it is contended trial judge was absent during final argument. In reviewing the question whether it was error to deny a motion for new trial on the ground that the trial judge was absent during the final argument, a statement made by the judge in disposing of the motion, to the effect that he was not absent, which is incorporated in the bill of exceptions controls and ex parte affidavits are not considered.
    Appeal from the Circuit Court of Macon county; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 18, 1913.
    Rehearing denied April 18, 1913.
    Jack, Deck & Whitfield, for appellants.
    Whitney & Fitzgerald and J. S. McLaughlin, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is a suit brought by Joseph N. Loving to recover a commission from Michael Kane and Nora Kane for the sale of a farm of the defendants. Plaintiff recovered a verdict and judgment for $363.10. The defendants appeal. ?

Appellants assign numerous errors. Among others it is insisted that the evidence does not show that appellee was the procuring cause of the sale and that the court should have instructed a verdict for the defendants. Appellants owned a farm of 363 and a fraction acres, close to Dalton City in Macon county. Appellee is a real estate agent residing in Decatur. The evidence of appellee is that Nora Kane had frequently, prior to July, 1911, talked to him about selling the farm and fixed a price but no other terms; that on July 19, 1911, he met Mrs. Kane in Decatur and she asked him if he had any prospective buyers for her farm; that he replied “that from what I learn you have been turning down so many people about the sale of it that if I work for you any further I want it in writing,” that she then signed a contract agreeing to take $200 net per acre; this contract was afterwards signed by Michael Kane; that it was agreed he should have all he could get above $200 an acre for his commission ; that he at that time mentioned to Mrs. Kane four parties, among them John Henneberry as prospective purchasers, who were wanting to buy farms and that he wrote to them concerning the sale of this farm as soon as he had the contract signed by her; that after that he talked to John Henneberry several times, in regard to the sale of the farm; that about September 1st, he priced the farm to Henneberry at $201, an acre and Henneberry said if he could sell his farm he would take the Kane farm. Appellee at that time told Henneberry tliat he could readily sell his farm as he had buyers close to it who would gladly buy it. He again talked with Henneberry on September 14th, about the mortgage on the Kane farm and they went to the recorder’s office and examined the records. The same day Henneberry signed a contract authorizing appellee to sell his farm of 194 acres for $40,000 “to be sold on condition that the owner can and does buy the 363 acre farm of Michael & Nora Kane in Sec. 25, in Mt. Zion Township and it is agreed by and between the parties that I will allow $100. com. in case of sale and agree to pay $201 per acre for the Kane farm.” Appellee testifies that on that day or the next day he wrote a letter to the Kanes notifying them that he had sold their farm to Henneberry for $201 an acre. Appellants deny receiving any such letter, although a letter from Mrs. Kane to appellee states that she has a letter from appellee concerning a trade of the farms, and that she met appellee the day of the receipt of the letter and told him she would not trade, but appellants did not produce the letter. Appellee also testified that two days after writing the letter to the Kanes notifying them he had sold the farm, he got a telephone message from the Kanes to meet them in a certain store; that he went to the store and Mrs Kane was not there, but he met her on the street during the day and told her he had sold the farm to Henneberry and asked her if she would take the Henneberry farm in part payment; she said she did not want to trade and appellee replied “If you don’t want to trade you don’t have to, but then he is going to take the farm just the same. He has bought the farm alright and I says we will be around all right in a little while to put up some money and close the deal. And she says she was glad I sold.”

On the 21st of September, appellants executed a contract for the sale of the farm to Henneberry, for $200 an acre, a real estate agent named Brock attending to the closing np of the deal. This contract provided that $3,000 should be paid cash and the balance March 1, 1912, with interest from January 1, 1912, tlie purchaser assuming as part of the purchase money, mortgages on the premises for $29,000, with interest from March 1, 1912, and the Kanes reserving a certain “hog wire fence.” Appellants claim the sale was made by Brock and not by appellee.

It is argued that if appellee had found a purchaser for the farm for appellants at $201 an acre, which would give appellants $200 an acre net, that they would not have sold it afterwards for $200 per acre to the same purchaser. Questions concerning the possession, the mortgages on the farm, interest on the purchase money to March 1st, the usual time of giving possession, the desire of the purchaser to get it as cheap as possible and other matters might overbalance the difference of $1 per acre or induce them to make the sale through Brock. The evidence of the appellee is contradicted by appellants. The contract of agency is in writing as is the contract signed by Henneberry that was delivered to appellee, and in the latter contract Henneberry agrees to take the land at $201 per acre. The jury could reasonably find that appellee found a purchaser who was able, ready and willing to take the land at the price fixed and that he was the efficient cause of the sale. Except for the written contract signed by Henneberry, the evidence would appear to preponderate on the side of appellants, as much of the evidence of appellee is contradicted by the evidence of the purchaser and the Kanes. The issue was one peculiarly within the province of the jury, who saw the witnesses, to decide and the trial court having approved the verdict this court cannot say the finding and the judgment are manifestly against the weight of the evidence.

Appellants contend that the court erred in admitting the evidence of Henneberry as to negotiations he had had with appellee concerning the purchase of the farm prior to July 19, the date of the written contract of agency. The evidence tends to show that he had the farm for sale before that time on a verbal agreement.

The evidence was proper as it tended to show what appellee had done in securing a purchaser and the negotiations were speaking acts leading up to the sale.

When appellee and Henneberry went to the recorder’s office to examine the record concerning mortgages against the Kane farm, figures were made concerning the amounts of the mortgages on the records, these figures which are headed “Kane Mtg.” were offered in evidence and admitted over objections of appellants. There was no error in admitting this memorandum as it was a part of the work done in attempting to make the sale.

There were eight instructions given at the request of appellee, the giving of each of which it is contended is error, we have carefully examined them and find no reversible error in them although there is some repetition. To review each instruction would needlessly prolong this opinion and serve no useful purpose.

It is also urged that the court should have granted a new trial because of newly discovered evidence. The newly discovered evidence only tended to impeach the appellee and was merely cumulative of other evidence ; it was not by any means conclusive of the issue in the case. New trials are not granted because of newly discovered evidence unless it would probably lead to a different result. Where it is merely impeaching in its character it is insufficient to warrant a new trial. Springer v. Schultz, 205 Ill. 144; City of Chicago v. McNally, 227 Ill. 14; Gregory v. Gregory’s Estate, 129 Ill. App. 96.

It is also contended a new trial should have been granted because the trial judge was absent from the court room during the final argument of the case. An affidavit of appellants was filed stating that during the argument of counsel for appellee to the jury the trial judge was absent from the court room. Counter affidavits made by bailiff and three jurors were filed stating that the judge was not absent from the court room during the argument of counsel. The statement of the trial judge made in disposing of the motion for a new trial is incorporated in and made a part of the bill of exceptions. In this it is stated that the judge was not absent from the court room during the argument. A motion was made by appellants to strike the counter affidavits from the files, which was overruled.

It was not proper to file affidavits on either side of the question concerning the action of the judge. “Such matters cannot be shown in that way, but can only be made a part of the record by a proper recital in the bill of exceptions. What is done by the judge or what occurs in his presence is within his knowledge and must be recited over his certificate and cannot be made a part of the record by ex parte affidavits.” Peyton v. Village of Morgan Park, 172 Ill. 102; Mayes v. People, 106 Ill. 306; Scott v. People, 141 Ill. 195; Greyer v. People, 188 Ill. 64; Gallagher v. People, 211 Ill. 171; Deel v. Heiligenstein, 244 Ill. 239. Such affidavits are only proper when the judge desires that his memory be aided. The bill of exceptions reciting that the judge was not absent must control as to the facts. The affidavits were not on a matter in issue before the jury, but on a matter incidental to the trial and while counter affidavits may not be filed concerning newly discovered evidence which goes to the issue to be tried by the jury, or on a motion for a continuance, it is the practice to file affidavits and counter affidavits concerning the conduct of a jury, or on matters to be decided by the court which do not involve the issues tried by the jury. Finding no reversible error in the case the judgment is affirmed.

Affirmed.


text:
    Josephine McAvoy, Appellee, v. St. Louis, Springfield & Peoria Railroad, Appellant.
    1. Carriers—duty to use highest degree of care. It is the duty of a carrier of passengers to use the highest degree of care, skill and diligence reasonably practicable, consistent with the operations of a railroad, in providing passengers an opportunity and the means necessary to a safe passage from its cars, and at the same time passengers must exercise ordinary care for their own safety.
    2. Negligence—when question of due care becomes one of law. In a personal injury action where the plaintiff’s own negligence on the question of her care is free from conflict and the facts are undisputed and conclusively proved, so that there is no chance of drawing different conclusions from them, the question becomes one of law for the court, and if the plaintiff did not use ordinary care for her own safety, it is the duty of the court to give a peremptory instruction on request.
    3. Negligence—where plaintiff does not use due care. Where plaintiff, who was three months pregnant, in getting off an interurban car which had run past the platform, jumped from a step three feet from the ground, she was not in the exercise of ordinary care for her own safety and is not entitled to recover for injuries sustained.
    Creighton, X, dissenting.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed with finding of fact.
    Opinion filed March 18, 1913.
    H. C. Dillon and Graham & Graham, for appellant; G. W. Burton, of counsel.
    Drennan & Lawler, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an action in case brought by appellee against appellant to recover damages for personal injuries sustained by appellee because of the alleged negligence of appellant, while alighting from its electric passenger car. There was a verdict and judgment in favor of appellee for $1,500.

The appellee, her husband and their three children were passengers on appellant’s car coming from the north from Chatham to West Auburn, and alighted at West Auburn about five o’clock in the afternoon of September 3, 1911. The station at that place consists of a small building and a wooden platform on the east side of the track which runs north and south. The platform was about ten or twelve feet long and six to eight feet wide and was about three inches higher than the rails of the track. The rear end of the car when it stopped was about eight feet south of the platform, the car having run past the platform. The road bed at the place of the accident was ballasted with fine shale, which extended from between the rails of the track to a few feet each way, outside of the rails. Beginning at the rail the road bed sloped away from the track, the slope being about seven inches in three feet and is the greatest near the rail. When the car stopped south of the platform, a Mrs. Cummings with a little boy got off, then appellee’s husband got off with their youngest child, then the conductor alighted and helped her two remaining children off, then appellee, who had been pregnant about three months, stepped down upon the bottom step and hesitated a moment, but having seen the other passengers jump off she did the same. When she jumped she came near falling and threw her arm back and caught hold of the car. The distance from the lower step to the ground was about three feet. Immediately after appellee jumped, she had pains and suffered a miscarriage about three o’clock next morning. Appellee testifies that she never had a miscarriage before, but there is evidence tending to prove that she had had two former miscarriages. The foetus of which she was delivered weighed about two ounces and was about three inches in length. About ten days after the miscarriage, her physician found a tear about an inch deep in the neck of the womb, and found her suffering with metritis and endometritis, from which in his judgment she had been suffering for some months. The conductor neither assisted her nor furnished a stool to aid her in alighting, but with her husband stood near and saw her jump. The appellee knew at the time she jumped from the car that she was pregnant.

It is the duty of a carrier of passengers to use the highest degree of care, skill and diligence reasonably practicable, consistent with the operations of a railroad in providing passengers an opportunity and the means necessary to a safe passage from its cars, and at the same time passengers must exercise ordinary care for their own safety. Pennsylvania Co. v. McCaffrey, 173 Ill. 169; Galena & C. U. R. Co. v. Fay, 16 Ill. 558; Chicago & A. R. Co. v. Noble, 132 Ill. App. 400; Hoylman v. Kanawha & M. R. Co., 22 L. R. A. (N. S.) 741 and note, 65 W. Va. 264.

While the question of ordinary care on the part of a plaintiff is a question for the jury, yet where the plaintiff’s own evidence on the question of her care is free from conflict and the facts are undisputed and conclusively proved, so that there is no chance of drawing different conclusions from them, then the. question of ordinary care becomes a question of law for the court, and if the plaintiff did not use ordinary care for her own safety, then it is the duty of the court to give a peremptory instruction in-request. Ackerstadt v. Chicago City Ry. Co., 94. Ill. App. 130, affirmed 194 Ill. 616; 23 Am. & Eng. Ency. of Law, 558.

The appellee was three months gone in the family way and knew her condition. She saw the distance from the step to the ground. It was her duty to use the degree of care that' any prudent adult person would have used commensurate with her condition and surroundings. From her own statement she did not use ordinary care and prudence for her own safety, the care that an ordinarily prudent person in her delicate condition would have used, but deliberately jumped from a step that she saw was three feet from the ground. Since the appellee’s own evidence shows-that she was not in the exercise of due care she was not entitled to recover. It is not necessary to review the other questions presented. The instruction directing a verdict for appellant should have been given. The judgment is reversed with a finding of fact.

Reversed with a finding of fact.

Finding of fact to be incorporated in the judgment of the court: We find that appellee was injured because of her own negligence and want of ordinary care for her own safety.

Mr. Justice Creightoh dissenting.


text:
    Ray Moore, Appellee, v. Springfield & Northeastern Traction Company, Appellant.
    1. Master and servant—contributory negligence. Where plaintiff twenty years of age after' working nineteen days for defendant electric railway company in learning the work of a substation attendant is directed to clean out a high tension room and while so doing is injured by an electric current, an instruction which limits the care of plaintiff to what he did while in the high tension room, is erroneous, there being evidence that he was guilty of negligence in going into the room without first opening the outside switches.
    2. Evidence—as to different construction of wires and switches in high tension room. Where plaintiff an employe of defendant electric railway was injured while cleaning a high tension room, evidence that a different construction of the wires and switches would have been safer for the employes is improperly admitted where the issue is whether defendants used reasonable and ordinary diligence to provide reasonably safe appliances.
    3. Argument oe counsel—improper remarles. It is error for plaintiff’s attorney to persist in making remarks which are objected to and sustained, to the effect that plaintiff was employed after a number of employes had gone on a strike.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding, Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 18, 1913.

      Statement by the Court. This is an appeal from a judgment for $10,000, recovered by appellee against appellant for personal injuries. Appellant operates an electric interurban railway from Springfield to Lincoln. It has three wires along its railway which carry an alternating current of about 33,000 volts. The railway cannot be operated by the alternating current and appellant has substations at different points along its line with machinery and apparatus therein for transforming the alternating current into a direct current of 650 volts, which is then transferred to the trolley line for operation of the cars. Variations in the current require in addition to the permanent stations, portable stations which are moved from place to place as required. The portable stations are in box cars, which are divided into two compartments, a high tension or alternating current compartment and a direct current compartment. There is no means of acces's from one room to the other, each opening to the outside of the car. In the high alternating compartment the current is transformed to a direct current.
    There are two sets of switches between the alternating current wires and the transforming apparatus in the high tension room. One set of three switches consists of metal blades about fifteen inches long, about ten feet from the ground on a pole outside the car. These switches are hinged at the lower end where they connect with a wire running to the substation, swing upwards into a metal groove at the other end, where they connect with the main high tension wires. These switches are operated by means of a pole with a hook on the end by which the switches are opened and closed. When these switches are open, the switch blades are dead and the current is entirely cut off from the car. The other set of three switches are eighteen inches apart inside the car with the hinged end below connecting with the wires running from the switches on the pole, and swing upwards to connect, when the switch is closed, with the wire running to the transformer. These switches are also opened and closed with a pole. When they are open the blades are alive unless the outside switches on the pole are open. In 1910, when appellee was over twenty years of age, he started to work for appellant at a substation at Dement to learn the work of a substation attendant. After eight days work at Dement appellee was given charge of a portable station at Elkhart during the night time. After being at work at this station eleven days appellee was on the afternoon of July 29, told to go the next morning into the high tension room and clean it out. He went into the high tension room without opening the outside switches, opened the inside switches, and while cleaning out the room appellee appears to have touched one of the blades of an inside switch and at the same time a holt in the floor of the car, making a ground connection, and was injured and brought this suit to recover damages.
    The case was tried on three counts of the declaration which are common law counts, none of which aver any statutory negligence. The first count avers that plaintiff did not know that when the blades of the switches were pulled down they were charged and that it was the duty of the defendant to have informed plaintiff of the danger of coming in contact with the blades of the switches when they were open and that defendant was negligent in ordering, through its superintendent, plaintiff to go into the high tension room without properly instructing the plaintiff. The second count avers the inexperience of plaintiff and the duty of defendant to inform plaintiff of the perils of the work and negligence in putting plaintiff to work in such a dangerous place without informing him of the danger. The third avers negligent construction of the apparatus in that the inside switches were charged with the electric current when open. The first two counts aver that the plaintiff was in the exercise of due care while at work in said substation; the third count avers that he was in the exercise of due care while at work, and does not aver that the risk was not assumed by plaintiff.
    H. C. Dillon and Graham & Graham, for appellant; George W. Burton, of counsel.
    William G. Cloyd and Thomas F. Ferns, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

The appellant testified that “Part of my duties were to keep the machine and car clean and the machines running best I could;” that L. A. White the superintendent, took him to Elkhart on July 18, for the purpose of putting him to work but did not examine him or ask him any questions as to his knowledge of electrical apparatus and gave him no instructions concerning the use of the dangerous apparatus; that at a subsequent visit on July 29, the superintendent told him to go the next morning into the high tension room, pull the blades there, and clean up the room; that he knew there were outside disconnecting switches but did not know whether they would break the current if pulled out, that he thought they were for lightning protection. The then superintendent of appellant not now in its employ, testified that he fully examined the appellee as to his electrical knowledge, explained the use and purpose of both sets of switches, saw him operate the apparatus and told appellee not to go into the high tension room until after he had opened the outside switches.

Two of the counts aver that appellee was in the exercise of due care while at work in the substation. With this conflict in the evidence the court, at the request of appellee gave an instruction “that if from the evidence and under the instructions of the court you shall find the plaintiff has proved his case as laid in his second amended declaration or any one of the first, second or third counts thereof by a preponderance of the evidence you should find the defendant guilty” and assess his damages, etc.

This instruction, read with the declaration, limits the care of the appellee to what he did while in the high tension room and authorizes a verdict notwithstanding the fact, if the facts were as testified to by White, that appellee was guilty of negligence in going into the• high tension room without first opening- the outside switches. Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544; Illinois Terra Cotta Lumber Co. v. Hanley, 214 Ill. 246; Gould v. Aurora E. & C. R. Co. 141 Ill. App. 348. This instruction should not have been given for the reason that while directing a verdict it ignored the defenses of assumed risk and contributory negligence in going into the high tension room without opening the outside switches, and unduly limited the time during which appellee was required to prove he was in the exercise of due care.

It is also insisted that there was error in the admission of evidence. An electrical engineer testified in behalf of appellee, over the objection of appellant, that it would have beeii practical to have had the high tension wires enter at the top of the substation and the inside switches so constructed that the blades would not be charged with electricity when the switches were open and that a device could be constructed so as to protect the switch when open, but that he did not know of any device that would be practical to prevent employes from touching the switch; that “the practical and safest way would be to connect the high tension wires to the top of the switch and leave the blade when open harmless.” There is no averment in any count that brings this action under the Act of June 4, 1909. Under the averments of the declaration so far as the construction of the apparatus was concerned, the question to be submitted to the jury is whether the appellant used reasonable and ordinary diligence to provide reasonably safe appliances for the safety of its employes in the construction of the devices and were the premises of appellant reasonably safe. It was error to overrule the objection to the testimony that a device could be constructed to protect the switch and that some different construction of the devices and some other method of construction would be safer for the employes. Chicago & E. I. R. Co. v. Driscoll, 176 Ill. 330; Chicago, R. I. & P. R. Co. v. Lonergan, 118 Ill. 41; Eckhart & Swan Milling Co. v. Schaefer, 101 Ill. App. 500; People’s Gaslight & Coke Co. v. Porter, 102 Ill. App. 461; Madison Coal Co. v. Caveglia, 122 Ill. App. 419; Kehler v. Schwenk, 13 L. R. A. 374, 144 Pa. St. 348.

It is also insisted that the judgment is excessive and "that counsel for appellee made inflammatory and prejudicial statements both in the opening statement and his closing argument to the jury. In the opening statement he stated there was a strike among the employes at the time appellant was employed, an objection to this statement was sustained. Counsel then continued, appellant had discharged seven or eight men, an objection to this was sustained. The rulings of the court had no effect on counsel for he continued his improper statements by again stating if it had not been for the discharge of these men this boy would not have been put to work, to which an objection was again sustained. The rulings of the court appear to have had no effect on counsel. The ruling of the court could not do away with the effect of such improper and inflammatory statements. In the cross-examination of "White and by volunteer statements of appellee, the facts that there had been a strike and trouble between appellant and its employes were improperly brought to the attention of the jury. There were also improper and prejudicial remarks made in the final argument. While we express no opinion concerning the amount of the judgment, yet no party should be permitted to try to profit by such unfair and unprofessional means. The statements of counsel with the repetition of the subject matter to which the court had sustained an objection show a deliberate intention to override thé law and defy the rulings of the court. They call for a more pointed rebuke and with the other errors require a reversal of the case. Wabash R. Co. v. Billings, 212 Ill. 41; Chicago City R. Co. v. Gregory, 221 Ill. 599.

The judgment is reversed and the cause remanded.

Reversed, and remanded.


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    William Gibson, Appellee, v. Isaac C. Lafferty, Appellant.
    1. Assumpsit—when verdict justified. In an action for the value of corn where plaintiff, who rented defendant’s farm and paid as rent one-half the corn, consented to have defendant sell his corn and defendant sold it with that of another tenant and the purchaser refuses to settle with plaintiff and defendant refuses to settle with the purchaser when requested by plaintiff, there is sufficient evidence, to sustain a verdict for plaintiff.
    2. Instbuctions—when based on evidence which is denied. An instruction based on evidence introduced by plaintiff is not erroneous because the evidence is denied by defendant.
    3. Instructions—directing verdict. An instruction directing a verdict which omits a material theory of the case upon which plaintiff is entitled to recover is properly refused.

      4. Instbuctions—properly refused when misleading. In an action to recover for the value of corn, where defendant, plaintiff’s landlord, commingled plaintiff’s corn with other corn and sold it, an instruction that before plaintiff can recover for the failure of defendant to settle for the corn he must prove that the purchaser after defendant was told to settle for the corn was ready, able and willing to pay for the corn, subject to a dock, is misleading and properly refused since it may refer to all of the corn defendant sold.
    Appeal from the Circuit Court of De Witt county; the Hon. William G. Cochean, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 18, 1913.
    Rehearing denied April 18, 1913.

      Ingham & Ingham and John Fuller, for appellant.
    Herrick & Herrick, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is a suit in assumpsit brought by William Gibson against Isaac C. Lafferty to recover the value of 1,342 bushels of corn. The pleadings are the common counts and the general issue. The plaintiff recovered a verdict and judgment for $708.56, and the defendant appeals.

The evidence discloses that appellee occupied a farm as tenant of appellant. The terms of the lease were that appellee was to pay as rent one half of the corn, raised on the farm, delivered in the market. In the fall of 1909, the com was husked by appellee and placed in a crib on the premises. In the latter part of November appellant-told appellee that he wanted to sell the com, that he could get fifty cents per bushel for it, and appellee told him if he thought fifty cents was a good price to go ahead and sell it as partnership corn.

Appellant had another tenant, his son W. I. Lafferty, who also had some corn for sale. Appellant sold the corn that was raised by appellee together with the corn of his son amounting to 6,000 bushels in his own name, to grain dealers named Pletsch. Appellee had no notice that his corn was commingled with that of W. I. Lafferty or that it was sold in the name of appellant. When the last two loads of com raised by appellee were being delivered, Pletsch objected to the quality of the com and told Gibson that the corn would have to be docked; appellee replied that the corn was not sold to stand grade and Pletsch said that appellee had nothing to do with it, that it was Lafferty’s corn. After the corn was delivered appellee went to the purchasers to get his money and was told he had nothing to do with it that the com had been sold in Lafferty’s name. Appellee and the two Lafferty’s within a day or two went to the purchasers to settle for the corn, the grain buyers wanted to dock the corn four cents a bushel, hut offered to settle at a dock of two cents. Appellant refused to accept the price offered by the grain buyers and no settlement was made. Three weeks after the delivery of the corn appellee went to appellant and told him he had lost his oats, and he could not afford to lose his corn and for appellant to go and settle for appellee’s part of the corn less the dock. Appellant refused to do that and brought suit in his own name against the grain buyers to recover the value of all the corn. Before the suit was tried appellee again asked appellant to settle with the grain buyers. Ten months after the delivery of the corn one of the grain buyers was adjudged bankrupt. The financial condition of the other is not disclosed by the evidence except as it may be inferred from the fact that appellant has not collected the money due for the corn.

The evidence shows that appellant did not sell the corn as he was directed to, but appropriated it to himself, and commingled it in the sale with other corn in which appellee was in no way interested. It also shows that the sale was made in such a way that appellee was deprived of all right to collect for his com from the purchaser, and that appellant refused to make a settlement on the terms suggested by appellee and offered by the grain buyers. The verdict and judgment are sustained by the evidence.

It is insisted that there was error in some of appellee’s given instructions because there was no evidence on which to base them. Counsel state that the evidence on which they were based was denied by appellant. The fact that the evidence of appellee was denied by appellant does not furnish a reason for refusing the instruction. Appellant’s statement furnishes the answer to his contention.

It is also insisted that the court erred in refusing appellant’s first and second refused instructions. The first refused directed a verdict and omitted a material theory of the case upon which appellee was entitled to recover. It also appears that the instruction printed in the abstract and brief is not in the record. The second refused instruction is to the effect that before appellee can recover for the failure of appellant to settle for the corn, he must prove that the purchaser, after appellant was told to settle for the com was ready, able and willing to pay for the corn subject to the dock. If the purchaser was able and ready to pay for the com in which appellee was interested that was sufficient without any reference to the corn of appellant’s son. The instruction was misleading and there was no error in refusing it. Finding no reversible error in the case the judgment is affirmed.

Affirmed.


text:
    Addison C. James, Appellant, v. Franklin Life Insurance Company, Appellee.
    1. Insurance—when loan certificate and policy constitute one contract. Where a twenty payment insurance policy is issued in 1899, on which the payment period expires in 1909 as if it had been issued. in 1889, and a loan certificate is executed by the insured and accepted by the company to make up for the first ten payments which are not made, the policy and the loan certificate constitute one contract when both are executed and delivered at the same time.
    2. Insurance—when company entitled to set off the amount of a loan certificate in an action for the surrender value of a policy. Where the insured under a twenty payment policy exercises his option to surrender the policy for the guarantied value and profits at the expiration of the payment period and brings action for such sum, the company is entitled to set off the amount of a loan certificate given to the company by the insured and interest thereon, which is a part of the contract of insurance, where the certificate provides that the loan and interest to the end of the distribution period shall he a lien on the policy until paid, and where certain correspondence introduced shows that the lien of the loan certificate with interest is to he deducted from the face value of the policy with its accumulated profits.
    Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 18, 1913.
    Statement Tby the Court. The Franklin Life Association, a corporation organized for the purpose of doing a life insurance business on the assessment plan, in November, 1886, issued a certificate of membership to Franklin O. James, which entitled his beneficiary to $1,000 at his death, if he remained in good standing and the assessments of one dollar each against the assured should be kept paid. In 1899, the association changed its organization from an assessment company to a life insurance company under the statute, and changed its name to the Franklin Life Insurance Company, and was authorized to issue policies for the payment of a fixed amount and to charge and collect fixed premiums. On October 16th, 1899, the Franklin Life Insurance Company issued its policy No. 26,071 on the life of James for $1,000, upon the twenty annual payment life plan, with guarantied additions shown on the face of the policy, the additions for the first ten years being $275.43 and increasing annually about $15 per year until the twentieth year when the total increase is $428.33. The policy is called a forty per cent return premium policy. At the date of the issuing of the policy October 16th, 1899, James was 46 years of age, but the policy was issued in 1899, as of October 16, 1889, and shows James to be 36 years of age and that the premium paying period on the twenty payment policy issued expired in 1909. The policy on its face shows that it was issued in consideration of the payments to be made and the surrender and cancellation of the assessment certificate.
    The policy grants to the insured certain rights to loans and several options at the expiration of the premium paying period with the distribution of profits “subject to any existing indebtedness,” the first option being “(1) Draw guaranteed cash value of five hundred and fifty one Dollars together with the profits apportioned hereto.” At the time the policy was issued in 1899, the insured gave to the company a certificate of loan signed by him in the following words: ‘ ‘ This certifies that the Franklin Life Insurance Co. of Springfield, Illinois, has loaned on policy No. 26,071 the sum of Two Hundred Seventy-five and 43-100 Dollars, which, with any additional loan, shall be a lien on said policy until paid; interest at the rate of six per cent per annum to be added thereto until the end of the distribution period of said policy at which time the profits accruing to it shall be used toward the payment of said loan, and any excess paid in cash or used as set forth in the policy, at the option of the insured. Should the profits not fully pay the loan, the amount remaining unpaid at that time may be continued as a loan, interest as aforesaid and the dividends accruing on the policy, to be thereafter payable annually. In event of my death or failure to make any payment when due to said Company before said loan is fully paid, the amount remaining unpaid shall become due and be deducted from the amount payable under said policy.
    Dated at Springfield, Ill., Oct. 16, 1899.
    A. C. James,
    Witness: John S. White. The Insured.”
    When the premium paying period expired in 1909, the insured accepted the first option and tendered the surrender of the policy and demanded the guarantied surrender cash value of $551.00 together with the profit apportioned to said policy. The statement of the insured shows that the profits apportioned to the policy were $89.62. The insurer claimed against the guarantied surrender value and profits amounting to $640.62 a set off of the certificate of loan and interest amounting to $440.69. The case was tried before the court without a jury. No propositions of law were presented by either side. The court allowed the set off and rendered judgment for the plaintiff for $227.67. The plaintiff appeals and contends that the judgment should have been for $640.69 and legal interest from December 9, 1909, when he exercised his option to receive the surrender value of the policy.
    Smith & Friedmeyer, for appellant.
    McAnulty & Allen, Logan Hay and James C. Jones, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

The policy issued by the appellee and the loan certificate executed by the appellant were executed and delivered at the same time and constitute one contract. The policy while a twenty payment policy makes the payment period expire in 1909, the same as if it had been issued in 1889, in consideration of the surrender of the association certificate and to make up for the ten payments that had not been made the loan certificate was executed by appellant, so that his policy would be on an equality both as to payments and age, with policies on which the full twenty payments are required to be made. The loan certificate was made by the insured and accepted by the company, so that there would be no discrimination in its policies and that the assets of the company would show to the insurance department of the state that the insurance company was solvent. The company accepted the new policy on the terms that “the loans, surrender values, options, privileges, and conditions stated on the second and third pages hereof form a part of this contract. ’ ’ On the second page is stated: “DISTRIBUTION OF PROFITS. The accumulation period of this policy ends on the 16th day of October, 1909, when its share of profits will be apportioned, provided the insured is then living and all premiums have been paid in full to that date, and this policy may then be continued or surrendered by the insured, or assigns (subject to any existing indebtedness) under one of the following OPTIONS. (1) Draw guaranteed cash value of Five hundred and fifty one Dollars ($551.00) together with the profits apportioned hereto; or,” The certificate signed by the insured recites that the company “has loaned on policy No. 26,071, the sum of two hundred seventy-five and 43-100 Dollars, which with any additional loan on said policy shall be a lien on said policy until paid; interest at the rate of six per cent, per annum to be added thereto until the end of the distribution period of said policy. * * * should the profits not fully pay the loan the amount remaining unpaid at the time may be continued as a loan, interest as aforesaid and the dividends accruing on the policy to be thereafter payable annually. In the event of my death or failure to make any payment when due to said Company before said loan is fully paid the amount remaining unpaid shall become due and be deducted from the amount payable under the said policy.” The amount of the certificate of loan being a lien on the policy until paid, the amount due under the certificate must be paid from the sum to be paid on the policy whether the policy is taken up by the company either on its- surrender under any of the options or because of the death of the insured. Appellant has offered in-evidence certain correspondence between himself and appellee in 1901, with reference to the conditions of the policy and this loan certificate, and insists that the company misled him as to the effect of the loan certificate on the policy. The .correspondence shows that the lien of this loan certificate with interest is to be deducted from the face value of the policy with its accumulated profits. Both the insured and the insurer are bound by the terms contained in the policy and the loan certificate contemporaneously executed and delivered. The evidence also shows that the state through its insurance officials placed the same construction on the contract as did the trial court, and that it would not have permitted the company to have done business under the construction contended for by appellant. The court correctly held that the appellee was entitled to offset the loan certificate, and the judgment is affirmed.

Affirmed.


author: Mr. Presidirg Justice Thompsor

text:
    Frank Smith, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.

      Railroads—contributory negligence. Evidence held, to show that the motorman of an electric interurban car was guilty of negligence preventing recovery for injuries sustained in a collision with a switching railroad train at a crossing.
    Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed with finding of fact.
    Opinion filed March 18, 1913.
    George B. Gillespie, for appellant; Robert J. Cart, Rearick & Meeks and Gillespie & Fitzgerald, of counsel.
    C. H. Beckwith and Actor & Actor, for appellee.
   Mr. Presidirg Justice Thompsor

delivered the opinion of the court.

Plaintiff was a motorneer on an electric car of the Danville Street Railway Company, an interurban railway. The defendant is a steam railroad; its main line runs east and west between Danville and Hillery. The railway of the electric line runs on the south side of the steam railroad, parallel and adjacent to it. The steam railroad runs in a cut about twelve feet deep while the electric railway runs on the surface of the ground. The steam railroad has two parallel tracks; the north one is the main track and the south one, known as the “old main” is used for passing and switching purposes. There is a space of about seventy feet betwen the old main track and the track of the electric railway. A switch track from the steam railroad to a brick yard leads off from the old main track of defendant in a curve toward the southwest and crosses the interurban nearly at right angles on the surface of the ground. The car on which plaintiff was engaged as a motorneer on the way from Hillery to Danville while attempting to cross this switch track of defendant collided with the head freight car of a train which was being backed over the switch into the brick yard. Plaintiff was injured and brought this suit to recover damages therefor. He recovered a verdict of $2,095. A remittitur of $95 was entered and judgment rendered in his favor for $2,000. The defendant appeals.

A reversal of the judgment is asked on the ground that the accident happened because of the negligence of the appellee and that the evidence does not show that the appellant was negligent. The gist of the negligence charged is that the appellant negligently backed its cars over the switch track toward the brick yard across the electric line and it is specifically averred that the appellant negligently failed to have a good and sufficient light on the end of the train pushed toward the brick yard and did not give reasonable warning that the train was being backed over the crossing. There is evidence which standing alone tends to show that the defendant was negligent. Upon the question of the care of appellee, the evidence shows that the accident happened shortly after nine o’clock at night on the evening of November 20, 1910; that the train on the steam road consisted of eight cars and a locomotive pushing them toward the brick yard; that the night was dark and drizzly, and smoke from the brick yard located near the crossing hung over the tracks. Five witnesses, Fowler the switchman, McGuire the engineer on the engine, Khecht the conductor, Allen a helper on the brick yard engine, and Bowling the fireman all testify that EZnecht and Allen were on the top of the first car with lanterns. The evidence also shows that Fowler, the switchman, had cut the cars off a train on the old main line about 100 feet west of the switch from the old main line, and that he then walked up the hill off the old main line to the interurban and along it about 200 feet to the interurban crossing ahead of the freight cars; that the freight train was not running over three or four miles an hour; that just across and south of the interurban track, Fowler threw a switch to put the cars on another track and was waiting for the train to come up the hill when he saw the electric car coming and stepped back from the switch about fifteen feet to the interurban crossing and gave a “washout stop signal,” a hurry up stop signal, to the electric car, which was near the stop board and to the freight train, and the electric car gave two short whistles in answer to his signal, but the car kept on coming pretty fast and that the men on the top of the freight train were also giving stop signals. Fowler’s evidence is corroborated by Knecht and Allen. The signal to the electric car motomeer could have been seen by him, if he had been on the look out as he should have been when approaching the crossing. The signal to the freight train had to be communicated to the engineer through the men on top of the car. The freight train was almost on the crossing and the slack of the train ran the end of the first freight car on the crossing. It cannot be doubted that Fowler was at the crossing to turn the switch, and appellee if he had been looking would have seen him. The freight train stopped with the front end of the first car just over the interurban track, where the interurban car struck it with such force that it knocked the freight car off the track, off its trucks, turned it partly over and badly wrecked it; the front end of the electric car was also badly wrecked and the plaintiff severely injured. The only persons on the electric car were the conductor and the appellee. 'The appellee, who had been a motomeer for fifteen months, and the conductor on the electric car both testify that the electric car stopped at the stop board about 160 feet west of the crossing. The appellee testifies that he looked both ways on the railroad track and saw nothing, and that he did not see the freight train until he was fifteen or twenty feet from the crossing and that he immediately reversed the power on his car. A public highway runs on the north side of the steam railroad and parallel with it. A man named Palmer, his wife and daughter were driving west on the highway with a horse and buggy near where the collision took place at the time although they disagree as to whether they were east or west of the place where the collision occurred at the time it happened. Palmer says they were a little east of the place of the accident while Mrs. Palmer and the daughter say they were west, and Mrs. Palmer states that after the crash she turned around and looked back. They testify that it was raining a little but they could see to drive along the road by the light from the electric car and that they saw no lights on the top of the freight car and that the electric car “was running fast” was “runing at full speed” just prior to the crash. They were driving west and if they were west of the accident they naturally would not see any lights on the freight car without turning and looking behind them. The effect of the collision on the freight car and the interurban car with the other evidence all demonstrate by a clear preponderance that the freight car was running very slow and that the electric car was running at a high and dangerous rate of speed and that it approached the railroad crossing in a reckless and negligent manner. The appellee was guilty of gross negligence in the manner he drove the electric car on the crossing and under the circumstances no judgment in his favor can be sustained. The judgment is therefore reversed with a finding of fact.

Reversed with finding of fact.

Finding of fact to be incorporated in the judgment: The appellee was not in the exercise of ordinary care and was injured because of his own negligence.


text:
    F. A. Holzman, Appellant, v. City of Canton, Appellee.
    1. Licenses—discrimination. An ordinance requiring licenses from peddlers and hawkers which is not applicable to “farmers and gardeners and peddlers of fruit and vegetables from a basket by the person raising the same or his servants nor to the peddling of newspapers,” does not discriminate against any person or class of persons but is applicable to all persons and only’ regulates voluntary action.
    2. Ordinance—may derive validity from different grants. An ordinance may derive its validity from different grants of powers and does not necessarily depend on any single clause or section of the statute.
    3. Licenses—right to require. A city has the right to license peddlers of particular articles without requiring in the same ordinance that every peddler of any or all other articles shall be licensed.
    4. Ordinances—must he general. Ordinances of municipal corporations must be general in their character and operate equally upon all persons within the municipality of the class to which the ordinance relates.
    5. Interstate commerce—what sales not. Where defendant required purchasers of rugs on time to sign printed forms headed with the name of a firm with general offices in a foreign state, and the rugs were shipped in packages of twenty-five rugs which were broken and the rugs carried by him about the city and sold separately to different purchasers on time, such sales are not within the Interstate Commerce Act.
    6. Interstate commerce—elements determining. It is the locality where the sale is made and the article is at the time of sale that determines whether it comes within the provisions of the Interstate Commere Act.
    7. Interstate commerce—sales. The Interstate Commerce Act only has reference to sales in original packages and goods to be shipped from other states after the order is taken.

      Appeal from the City Court of Canton; the Hon. Harby C. Moran, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 18, 1913.
    Elwood & Meek, for appellant.
    A. E. Taee, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Appellee brought this action against appellant to recover for violating section 1, of article II of the Revised Ordinances of the city of Canton, which is:

“Article II.
Licenses eor Certain Occupations.
Section 1. Hawkers and Peddlers: No person shall sell or attempt to sell or offer for sale any goods, wares or merchandise or any article or thing of value by peddling, hawking or public outcry, within the city of Canton without first having obtained a license therefor, under penalty of not less than five dollars nor more than one hundred dollars for each offense; Provided, that this section shall not apply to farmers or gardners bringing into the city and selling the produce of their farms and gardens, nor to the peddling of fruit or vegetables from a basket by the person raising the same or his servants, nor to the peddling of newspapers. ’ ’

The appellant came to Canton and was found going from house to house about the streets of the city, with an armful of rugs which he was selling, delivering the rugs as sold, collecting part of the purchase price in cash and taking back contracts in the form of leases for the payment in instalments of the balance of the purchase money. The contracts, which he required purchasers of rugs on time to sign, are on printed forms headed, “C. F. Adams Co., General Offices, Erie, Pa., Stores in All Principal Cities. (Store Address) 123 North Adams St., Peoria, Ill..” The rugs were shipped by the Crawson Carpet Company of New-burgh, N. T., in packages of twenty-five rugs. The packages were broken and the rugs carried by him about the city and sold separately to different purchasers, the form of the sale being a lease, under which the purchaser became the owner on full payment to a collector, who called to make collections from purchasers at regular intervals.

Two defenses are urged. The first is that a city has no right to pass any ordinance that will interfere with the Federal statute relating to Interstate Commerce. The Interstate Commerce Act only has reference to sales in original packages and goods to be shipped from other states after the order is taken. It is the locality, where the sale is made and the article is at the time of the sale, that determines whether it comes within the provisions of the Interstate Commerce Act. Brown v. Maryland, 12 Wheat. (U. S.) 419; Robbins v. Shelby Taxing District, 120 U. S. 489; Hopkins v. U. S. 171 U. S. 578. Appellant did not take orders for carpets to be delivered, but received the goods in the original packages, broke them and carried the carpets about the city from house to house selling them and at the same time delivering them, a part of a package to each purchaser as he could find them. The first contention of appellant cannot be sustained under the admitted facts.

It is next urged that the ordinance is invalid and void in that it makes an unjust discrimination between peddlers of one class and peddlers of other classes.

This contention is based on the exemption from its provisions, of farmers and gardners, who peddle produce raised by themselves, and peddlers of newspapers. Paragraph 45 of section 63, article Y, chapter 24 of the statutes gives cities the authority “To license, tax, regulate, suppress and prohibit” peddlers, etc. Section 23, chapter 5 of the statutes gives to every farmer and gardner the undisputed right to sell their products in any place or market where such articles are usually sold without paying any city tax or license although cities have the right to prohibit such peddlers from obstructing streets, but there is no provision concerning the exemption of the peddlers of newspapers.

An ordinance may derive its validity from different grants of powers and does not necessarily depend on any single clause or section of the statute. Goodrich v. Busse, 247 Ill. 366. “Municipal corporations are mere creatures of the legislative will, and can exercise no powers except such as the State has conferred upon them. * * * Their governmental and administrative powers (other than those conferred by statutory or constitutional enactments, which are self-executing), can only be exercised by appropriate ordinances. Such ordinances must be general in their character, and operate equally upon all persons within the municipality, of the class to which the ordinance relates.” Zanone v. Mound City, 103 Ill. 552; People Blocki, 203 Ill. 363. “Each person subject to the laws has a right that he shall be governed by general, public laws. Laws and regulations entirely arbitrary in their character, singling out particular persons not distinguished from others in the community by any reason applicable to such persons, are not of that class. Distinctions in rights and privileges must be based upon some distinction or reason not applicable to others.” Harding v. People, 160 Ill. 459; People v. Blocki, supra. The exemptions in the ordinance are not of persons or of any classes of persons, but rather of occupations. If appellant desires to raise and peddle farm products or newspapers in Canton, he may do so without a license the same as any other person. If a newsboy or a farmer desires to peddle rugs he is required to have a license the same as.is appellant. A city has the right to license peddlers of particular articles without requiring in the same ordinance that every peddler of any or all other articles shall be licensed. City of Chicago v. Bartee, 100 Ill. 57; Metropolis Theater Co. v. City of Chicago, 246 Ill. 20. An ordinance which prohibits any person from crying his wares or otherwise making or cansing a noise to be made by advertising snch wares ! £ except in amusement grounds,” etc., is not by reason of such exception void for unjust discrimination as the classification so made rests upon a reasonable and natural basis. Goodrich v. Busse, 247 Ill. 366.

We are of the opinion that the ordinance in question does not discriminate against any person or class of persons, but is applicable to all persons and only regulates voluntary action.

Any person may be required to take out a license if he desires to do a business that comes within its provisions and it is optional with every person whether he will do a business that the ordinance requires shall be licensed.

The judgment is affirmed.

Affirmed.


text:
    Austin J. Richey, Appellee, v. Fred Miller Brewing Company, Appellant.
    1. Agency—how proved. An agency cannot he proved by the statements of the person claimed to be an agent, but an alleged agent is a competent witness to prove the agency.
    2. Landlord and tenant—liability -for rent. It is error to refuse a peremptory instruction for defendant company in an action for rent for a building alleged to have been rented to the company where there is no evidence that such company rented the building or ratified the action of its agent merely authorized to sell its products in renting it.
    Appeal from the County Court of DeWitt county; the Hon. Feed C. Hill, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed with finding of fact.
    Opinion filed March 18, 1913.

      Herrick & Herrick, for appellant.
    A. F. Miller and John Fuller, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is a suit brought by appellee seeking to recover rent from appellant of a building which appellee claims to have rented to appellant. The declaration consists of the common counts and the plea is the general issue. Appellee recovered a verdict and judgment for $340.58.

The evidence shows that John A. Lasswell had a conversation with appellee relative to renting a building in Clinton for use as a saloon. No agreement was reached at that time; about three months thereafter a lease from appellee to one Max Barrett was signed by appellee and delivered to Lasswell who sent it to Chicago to Barrett. This lease provided for the payment of rent from May 17, 1910, at sixty dollars per month, and covers the time for which rent is sought to be recovered in this suit. There is a dispute as to whether Barrett ever returned the lease to appellee, but the appellant offered in evidence a letter from Barrett to appellee produced by appellee, dated August 5, 1910, notifying appellee that he would not take the lease because the city would not grant a license to run a saloon in the building to one Preston to whom Lasswell had subrented the building. Appellee also offers in evidence a letter from appellant to appellee in reply to a letter from appellee dated December 8, which states that agents of the appellant must act within the scope of their authority which is limited to the sale of its products and the collection of its debts. Evidence in the record shows that Lasswell was not the agent of appellant for any purpose except the sale of its products. Appellee was permitted over objection to testify to statements of Lasswell to him which are mere hearsay evidence before an agency had been proved by competent evidence. •

It is elementary law that an agency cannot be proved by the statements of the person claimed to be an agent, bnt an alleged agent is a competent witness to prove the agency. 10 Ency. of Evidence, 14, 15; Merchants’ Nat. Bank v. Nichols & Shepard Co., 223 Ill. 41; Thayer v. Meeker, 86 Ill. 470; Phillips v. Poulter, 111 Ill. App. 330. The fact that after this suit was begun appellant claimed fixtures in the building does not prove that it had rented the building. Lasswell testified that he was buying beer from appellant in car load lots; that he paid cash for the beer and sold it to other parties as an independent dealer, and that he also sold the goods of the Coca-Cola Company of Peoria, but was not permitted to testify concerning the agency because of the objection of appellee. Charles H. Hessler testified that he was the wholesale manager of appellant and was the only person authorized to make leases and then they had to be ratified by appellant; that Lasswell had no authority to make leases for appellant, and that the only connection Lasswell had with appellant was to buy its goods outright and sell them again to the trade.

The appellant at the close of the evidence requested a peremptory instruction to the jury to return a verdict for appellant. There being no evidence either that appellant rented the building of appellee, or ratified the action of Lasswell in renting the building, the court erred in refusing the peremptory instructions. Since there is no evidence on which a judgment in favor of appellee can be sustained it is reversed with a finding of fact.

Reversed with finding of fact.

Finding of fact to be incorporated in the judgment: The appellant neither rented nor authorized or ratified any action of Lasswell in renting appellee’s building.


author: Mr. Justice Philbrick

text:
    John H. McKinstry, Appellant, v. John N. Bras, Appellee.
    1. Attachment—who may recover on hond. Under the statute providing that the hond in attachment shall be conditioned to satisfy all costs which may be awarded to the defendant or to any others interested in the proceedings and all damages and costs which may be recovered against plaintiff for wrongfully suing out an attachment, recovery may be had for damages sustained not alone by the attachment debtor but by any person interested in the proceeding who may have been damaged by the wrongful suing out of the writ, and it is not necessary that all of the persons interested in the attachment proceedings shall have sustained damages.
    2. Pleading—attaching pager to declaration. A paper cannot be made a part of a declaration by attaching it as an exhibit or by referring to it.
    3. Pleading—general demurrer does not reach defect of form. A general demurrer is insufficient to reach any defects in the form of the declaration.
    Appeal from the County Court of Be Witt county; the Hon. Feed C. Hill, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed March 18, 1913.
    E. B. Mitchell and E. J. Sweeney, for appellant.
    Ingham & Ingham, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action on an attachment bond brought by appellant against appellee. The attachment proceeding in which the bond was given was commenced by appellee against the Panhandle and Pecos Valley Land Company, with John H. McKinstry, Carl C. Young and Dan McNeil named as garnishees. The action was originally brought by John H. McKinstry, appellant, as sole plaintiff. The declaration declared on the legal effect of the bond but the bond was not set out in the declaration. The action as finally amended is an action "by John H. McKinstry (appellant), the Panhandle "and Pecos Valley Land Company, Carl C. Young and Dan McNeil, plaintiffs, for the use of John H. McKinstry against John N. Bras.

The declaration counts upon a bond given by John N. Bras as principal to John H. McKinstry and alleges the suing out of the attachment writ, the failure to prosecute it with effect, and damages resulting to John H. McKinstry. A- general demurrer was filed to this declaration, sustained by the court, judgment rendered against appellant for costs and in bar of action, from which this appeal is prosecuted.

The declaration upon its face does not disclose why the suit was brought on behalf of these plaintiffs for the use of McKinstry, although a copy of the bond was filed with the declaration only the legal effect having been declared on, the court cannot look to the copy of the bond filed either to support the declaration or to find any defects therein, as it is the well-established practice in this state that a paper cannot be made a part of a declaration by attaching it as an exhibit or by referring to it. The demurrer being general, it is insufficient to reach any defects in the form of the declaration. The declaration states a good cause of action against the defendant on the legal effect of an attachment bond.

Appellee contends that the copy of the bond exhibited is the bond sued on and could not be introduced in evidence under this declaration. That question, however, is not before this court for determination at this time. It is also contended by appellee in his argument that the bond is an undertaking to pay damages jointly sustained by the plaintiffs who sue for the use of John H. McKinstry, and that because the declaration alleges damage to John H. McKinstry alone no recovery can be had. It is sufficient to say upon that contention that the declaration does not declare on any such bond. But as this question will undoubtedly arise upon another trial, we have deemed it advisable to determine whether or not this hond is such a joint obligation as requires damages to all of the obligees, and whether an action to recover damages sustained by only one can be maintained. The statute under which this bond is given provides that the bond shall be conditioned to satisfy all costs which may be awarded to the defendant or to any others interested in the proceedings, and all damages and costs which may be recovered against plaintiff for wrongfully suing out such attachment. In an attachment proceeding the only parties whom it is necessary to name as defendants are those who owe the debt, but any person may be named in the affidavit to be served as garnishees, but this does not make such parties defendant to the action, and while it is only necessary to name the defendants, the statute provides that it shall be conditioned to pay all damages that may be recovered against plaintiff, and does not limit the damages to those sustained alone by the defendants. A similar statute has been construed by the courts of Mississippi, in Bean v. Stevenson, 61 Miss. 175, and by the courts of Ohio, in Alexander v. Jacoby, 23 Ohio St. 358, and these courts have held, and we think correctly, that a recovery may be had for damages sustained not alone by the attachment debtor but by any person interested in the proceeding who may have been damaged by the wrongful suing out of the writ; and it is not necessary that all of the persons interested in the attachment proceeding shall have sustained damages.

The trial court erred in sustaining the demurrer to this declaration, and its judgment is reversed and the cause remanded.

Reversed and remanded.