text:
    Bernard Gause (Abendroth & Root Manufacturing Company, Defendant in Error), v. Venango Construction Company et al., Plaintiffs in Error.
    1. Mechanics’ liens, § 57

      —when owner liable to party furnishing materials as an original contractor. Where persons organized a water company and pursuant to a scheme to build a large water works system, without capital, let the contract to a construction company formed by one of their number, and the construction company was simply used as a receptacle in which to place all the indebtedness incurred in the construction of the plant so that the creditors of such construction company would have no recourse and the profits on the deal would be equally divided between the promoters of the scheme, held under the circumstances that the water company was liable to a party that had furnished materials to the construction company as an original contractor instead of a subcontractor.
    2. Mechanics’ liens, § 128*'—when contractor’s lien prior to subsequently recorded trust deed. An original contractor’s lien attaches from the date of the contract and takes priority over a trust deed recorded subsequent to the execution of the contract.
    Error to the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 5, 1914.
    Rehearing denied June 25, 1914.
    Worthington, Reeve & Green and Kirby, Wilson & Baldwin for plaintiffs in error.
    Bellatti, Barnes & Bellatti, for defendant in error.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

The original bill in this case was filed by Bernard Gause against the plaintiffs in error and also Abendroth & Root Manufacturing Company and Builders’ Iron Foundry Company to enforce a mechanic’s lien on the property of the Jacksonville Water Works Company. The claim of Gause was settled and is not involved. The Abendroth & Root Manufacturing Company filed its cross-bill against all the above mentioned parties to enforce a mechanic’s lien against said property, and a decree was entered in its favor on said cross-bill. The only errors assigned are such as relate to that part of the decree foreclosing the lien of the defendant in error, the Abendroth & Root Manufacturing Company.'

In 1904 Omar N. Gardner, a civil engineer, Charles W. Mackey, an attorney at law, and Orrin D. Bleakley, president of the Franklin Trust Company of Franklin, Pa., originated a scheme for constructing a water works for the city of Jacksonville, Illinois. Gardner and Mackey procured a franchise from the city of Jacksonville granting them the privilege of supplying the city with water. The ordinance granting the franchise was passed in September of that year and authorized them to assign it to a corporation to be organized by them and required that the water should be brought from the river bottom about eighteen miles away. They caused to be organized the Jacksonville Water Works Company, to which they assigned said franchise, with a capital stock of $350,-000. Of this capital stock Mackey subscribed for 3,494 shares, the par value of each share being $100. Mackey was elected president and was also a member of the executive committee, Gardner became a director, and Bleakley became a director, treasurer and member of the executive committee. The directors passed a resolution authorizing Mackey, the president, to enter into a contract with Gardner to construct the water works. Thereupon Gardner resigned as director, but instead of entering into a contract with Gardner for the construction of the works, the Venango Construction Company was organized under the laws of Pennsylvania with a capital stock of $50,-000, of which Gardner was made president, and he subscribed for substantially all of the stock of that Company, and the contract for the construction of the works was let by the Water Company to this Construction Company. No part of the capital stock of either the Water Company or the Construction Company was ever paid. After the meeting of the stockholders of the Water Company at which they elected the directors, which was in January, 1905, there never was another meeting of the stockholders for over two years. AJter the first preliminary meeting of the directors of said Company there never was another meeting of the directors for a like period of time. The stockholders of the Construction Company met and elected directors and never met again. The directors met. and elected Gardner president and never met again. All the future transactions involved in this litigation so far as the Water Company, the Construction Company and the Trust Company are concerned were carried on by the three individuals, Gardner, Mackey and Bleakley. The contract between the Construction Company and the Water Company provided that the Construction Company should obtain the land and right of way, furnish all materials and construct the wells, pumping station and pipe line, and that when the plant should be completed it should turn the same over to the Water Company complete and ready for use, and the Water Company agreed in consideration thereof to turn over to the Construction Company bonds to the amount of $350,000, which it had authorized to be issued, and all its capital stock with the exception of ten shares. Thereafter the Trust Company, by O. D. Bleakley, its president, entered into an agreement with the Construction Company by which the Trust Company agreed to loan the Construction Company $280,000, and received as security the Water Company’s bonds to the amount of $350,000, and to secure the payment of the bonds a trust deed was executed by the Water Company to the Trust Company as trustee and conveyed to the latter all property it then had, and all that it might after-wards acquire. At this time the Water Company owned no real estate. This trust deed was executed immediately upon the organization of the Water Company and was dated January 4, 1905, but was not recorded until January 28, 1905. On this same day, January 4, 1905, an agreement was entered into between the Construction Company, the Trust Company and certain underwriters, among whom were Mackey and Bleakley, which agreement referred to the organization of the Water Company and the Construction Company and recited that the Construction Company had entered into such contract with the Water Company and that the Water Company had issued its bonds for $350,000, and its stock to the amount of $350,000, and had delivered the bonds and stock to the Construction Company in full consideration of the work to be done under the contract between the two companies, and the underwriters agreed to underwrite the bonds. The bonds were underwritten at the rate of $800 per bond, the par value of each bond being $1,000. Shortly thereafter Mackey, Bleakley and Gardner personally entered into a written agreement to divide all the profits on the whole deal equally between them. Bleakley was then substituted as trustee in the trust deed in place of the Franklin Trust Company. In January, 1905, prior to the recording of the trust deed in question, the Construction Company entered into a contract with the defendant in error, the Abendroth & Boot Manufacturing Company, whereby the latter was to furnish steel pipe and forcing mains to be used in the construction of the plant and through which the water should be carried from the wells to the city, about eighteen miles away, for the agreed price of $1.50 per lineal foot. Other contracts were made with ' other persons and companies for other material and construction work and all the contracts were prepared ■by Mackey. The Manufacturing Company furnished the pipe and there was a balance due it of $22,445.36. The Construction Company proceeded to construct the plant and obtain the right of way and ten acres of land on which the pumping station was erected, but instead of taking the title to the land in its own name, as its contract with the Water Company contemplated, had the deed executed conveying it directly to the Water Company. Before the Manufacturing Company entered into the contract to furnish the pipe to the Construction Company, the latter had furnished it with a copy of this contract with the Water Company,'which provided that the Construction Company should obtain the necessary land and right of way and on the completion of the work should convey it to the Water Company. The Construction Company defaulted in its payments under its various contracts for the material and construction of the works, and it having no assets of any kind whatever and the deeds to all the property on which the improvements had been made having been taken in. the name of the Water Works Company, the various creditors, among which is the Manufacturing Company, filed bills or cross-bills to foreclose mechanics’ liens upon the property of the Water Company, on the theory that the Water Company and the Construction Company were substantially one and the same thing and that the Construction Company was simply used as a scheme by which the creditors who furnished the labor and material for the construction of the water works might be defrauded out of the just payment of their claims. The chancellor who heard the case found that the Construction Company and the Water Company had equal interests in the property, and decreed a foreclosure of the liens.

It is the contention of plaintiffs in error that the Manufacturing Company was a subcontractor of "the Water Company, and that as it had served no notice on the Water Company as required by the statute it cannot enforce a lien, and also that the trust deed is a prior lien and takes precedence over that of the Manufacturing Company. The evidence clearly shows that Mackey, Gardner and Bleakley attempted to promote a scheme to build a large and expensive water works system without capital and that the Construction Company was used simply as a receptacle in which to place all the indebtedness incurred by the construction, and that by taking the deeds to the property directly in the name of the Water Company the latter Company would be freed from all obligations except its bond issue, and the creditors would be left without recourse, and that the profits on the deal would be divided equally between them. Under such circumstances the Water Company is liable to the Manufacturing Company as an original contractor, and the contention that the latter is a subcontractor cannot be sustained.

The lien of the Manufacturing Company attached from the- date of its contract with the Construction Company. This contract was executed before the trust deed was recorded and it therefore takes precedence over the trust deed.

The other contentions of plaintiffs in error we consider to be without merit, and the decree will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Eldredge

license: Public Domain

text:
    Etta Boyd, Appellant, v. Rufus D. Boyd, Appellee.
    1. Husband and wife, § 213

      —when separation agreement becomes abrogated by resumption of marital relation. A separation agreement between husband and wife, whereby the wife in consideration of a certain sum released her husband from any claim or right to maintenance or support, becomes abrogated and void in so far as it attempts to relieve the husband of the maintenance and support of wife and child where the parties thereafter fully resume the marital relation.
    2. Husband and wife, § 211*—what postnuptial contracts not favored by law. Postnuptial contracts between husband and wife made in contemplation of the parties living separate and apart, or where the element of separation enters into them, or where the separation is an accomplished fact when the contract is made, and without it in all probability the contract would not have been made, are not looked upon with indulgence by the law.
    3. Contracts, § 142*—validity of postnuptial contracts. Postnuptial contracts between husband and wife adjusting their interest in the property of each other, not made in contemplation of living separate and apart, are not contrary to public policy and are valid when understandingly and voluntarily entered into.
    Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed May 5, 1914.
    Fred Hamilton and Whitley & Fitzgerald, for appellant.
    Redmon & Hogan, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Appellant filed her bill in the Circuit Court of Macon county against her husband, appellee, for separate maintenance. The bill alleges that appellant and appellee were married on the seventh day of March, 1903; one child, Lawrence Andrew Boyd, now about four years old, was born of said marriage; that appellee abandoned her without fault on her part about January 25, A. D. 1913; that appellee was guilty of many abuses to her so that her life was rendered miserable and unendurable, which conduct on his part continued until about the fifth day of January, 1911, at which time on account of his said conduct towards her she was compelled to leave him and remained away until about May 4,1912, at which time he agreed and promised to refrain from all misconduct, and she, relying upon said promises, agreed to and did live and cohabit with him again as his wife; that after she had returned and resumed her marital relations with him he continued his acts of misconduct and abuse towards her and on the twenty-third day of January, A. D. 1913, sold all his personal property and on the twenty-fifth day of January he abandoned appellant and their child without cause. A temporary injunction was issued restraining appellee from removing, incumbering or disposing of his moneys and personal property. Subsequently an amendment to the bill was filed alleging that on the fifth day of January, 1911, appellant, at the instance and request of appellee, signed a certain agreement in writing which recites that in consideration of the sum of $1,020, appellant released appellee from any claim or right to maintenance and support which existed between them on account of the marriage relations; that appellant about the fourth day of May, 1912, returned from the State of Tennessee, where certain property she had purchased with said sum of money is situated, and by agreement between herself and appellee they resumed their marital relations and continued to reside and cohabit with each other as husband and wife until the twenty-fifth day of January, A. D. 1913; that in consequence thereof the said agreement became null and void; that said agreement was to last only for a space of two years and that she stands ready and willing to deed back the land to appellee if, upon the hearing, that should seem just and equitable to the court; that she has no means but her own labor for her support and maintenance and has never received but $41.50 rent from said land in question. Answers were filed to the bill and the amended bill denying generally all allegations in regard to the misconduct of appellee, admitting that after said contract was made the parties resumed their marital relations, but denying that by reason thereof said contract became void.

When the cause came on for hearing and after the opening statements of counsel had been made, the court asked to have the contract produced, which was done. The court then decided that the contract was a complete bar to the relief prayed for in the amended bill, and over the objection of appellant refused to hear any evidence in support thereof, and dismissed the bill for want of equity. It was stipulated in open court that the parties to the contract had resumed marital relations after the contract had been executed as set forth in the amendment to the bill.

The only questions to be determined on this appeal are: First, did the resumption of the marital relations between the parties after said contract was executed render the contract void, or at least so much of it as released appellee from the maintenance and support of appellant and the child? Second, was the court warranted in dismissing the bill for want of equity without hearing any evidence offered in support thereof?

The bill and the amendment thereto are very inartificially drawn. The contract in question is not set out in haec verba, nor is the substance of the whole contract alleged, nor is it attached to or made a part of the amendment, and while the certificate of evidence shows that a contract was produced and examined by the court, it does not appear that it was introduced in evidence. But we think the bill as amended is sufficient to present the propositions above mentioned for determination.

Appellee contends that by virtue of chapter 68 of the Revised Statutes (J. & A. 6143), a wife has the right to contract with her husband in respect to all matters, including her property rights, and that all restrictions upon the power of husband and wife to contract with each other, excepting in so far as they are ^expressly retained by the statute, are removed; that the contract in question in this case was valid and was not abrogated or annulled by the resumption of the marital relations between the parties.

While it is unquestionably true that the statute has removed most of the restrictions upon the power of married women to make contracts, yet contracts, whether made by married women or other persons, are subservient to the doctrine of public policy of the State in which they are made. The public is interested in the adjustment of all questions growing out of marital relations involving divorce and separation. “The dissolution of the marriage tie is a subject in which not alone the parties to it are interested, but the public is interested also.” Trenchard v. Trenchard, 245 Ill. 313. To the same effect, Wilson v. Cook, 256 Ill. 460.

Postnuptial contracts between husband and wife adjusting their interests in the property of each other, not made in contemplation of living separate and apart, when understandingly and voluntarily entered into are not contrary to public policy and are valid. But such contracts made in contemplation of the parties living separate and apart from each other, or where the element of separation enters into them, or where the separation is an accomplished fact when the contract is made, and without it in all probability the contract would not have been made, are not looked upon with indulgence by the law, and while in some cases they will be enforced while the parties live in separation, yet in our opinion when the' parties effect a reconciliation and resume their marital relations fully and completely, such contract is abrogated by the action of the parties themselves and ceases to have any force or effect, at least in so far as it attempts to relieve the husband from the maintenance and support of his wife and children. While this question does not seem to have been passed upon by the Supreme Court of this State, the proposition above announced has been approved in similar or analogous cases in other jurisdictions. Shelthar v. Gregory, 2 Wend. (N. Y.) 422; Carson v. Murray, 3 Paige (N. Y.) 483; Zimmer v. Settle, 124 N. Y. 37; Wells v. Stout, 9 Cal. 479; Smith v. King, 107 N. C. 273; Archhell v. Archhell, 158 N. C. 408; Roberts v. Hardy, 89 Mo. App. 86; Gaster v. Gaster’s Estate, 90 Neb. 529; Knapp v. Knapp, 95 Mich. 474.

In 1 Bishop on Marriage, Divorce and Separation, sec. 1312, it is said: “Marriage is a public institution as well as private; the public is in effect a party to every marriage and to every divorce; and two persons who have united in matrimony cannot by their mutual consenting create a separation even from bed and board, for this is an act requiring also the sanction of the third party, the public. In circumstances pointed out by the laws, the courts will give this sanction in the form of a judicial decree. So that bargainings for a separation, made simply between the married parties, whether with or without the intervention of a trustee, are nugatory.” And the same author in discussing such a contract as is here involved, in the same work, sec. 1283, states the rule to be: “A renewal of cohabitation commonly terminates the agreement, since the usual consideration for it has ceased to operate.” In Tyler on Infancy and Coverture, sec. 343, it is stated: “Reconciliation and recohabitation will avoid a deed of separation. ’ ’ The same doctrine is also announced in Tiffany on Persons and Domestic Relations, page 168.

The law does not favor the living apart of husband and wife, and under all circumstances encourages reconciliation. This principle is based upon sound public policy. Story in his work on Equity Jurisprudence, see. 1427, states it as follows: “So earnest, indeed, are courts of equity to promote the reconciliation of parties living in a state of separation that they will on no occasion whatsoever enforce articles of separation by decreeing a continuance of the separation.” And again in section 1428: “In the next place, even in cases of a deed for an immediate separation, if the parties come together again there is an end to it with respect to any future, as well as to the past separation.”

Counsel "for appellee cites the case of Stokes v. Stokes, 240 Ill. 330, as holding contrary to the doctrine we have herein approved. We do not so construe the decision in that case. In that case it appeared that there was an antenuptial contract made between the parties in which the rights of the wife were fixed in the property of the husband; that afterwards the husband and wife separated and the husband being old and feeble-minded a conservator was appointed for him, and that the wife and the conservator executed a subsequent contract, or postnuptial contract, which, while made when the parties were living apart, yet was made for the purpose of substituting that contract for the . antenuptial contract. While the facts in that case show that during the last illness of the husband he lived with the wife, yet at that time he was feeble-minded, and the conservator paid the wife a certain amount per week to nurse him and take care of him until he died, and there was no evidence to show that any actual marital relations were resumed between the parties, in fact there could not have been under said 'circumstances. There is nothing in the opinion in that case expressing any views contrary to those held herein.

We are of opinion, therefore, that if the marital relations were fully resumed between the parties in this suit after said contract was made, such action of the parties themselves abrogated said agreement and it became null and void in so far, at least, as it attempts to relieve the husband of the maintenance and support of his wife and child. Whether such marital relations were resumed was a question of fact to be determined from the evidence upon the hearing, and it follows that the Circuit Court erred in refusing to hear any testimony and in dismissing the bill for want of equity.

The decree will be reversed and the cause remanded for further proceedings in conformity with, this opinion.

Reversed cmd remanded.


text:
    Henry Marriage, Appellee, v. Electric Coal Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Vermilion county; the Hon. B. R. E. Kimbrough, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 5, 1914.
    Rehearing denied June 25, 1914.

      Certiorari denied by Supreme Court (making opinion final).

      Statement of the Case.
    Action by Henry Marriage against Electric Coal Company, a corporation, to recdver for personal injuries received by plaintiff while working in defendant’s mines. A verdict was rendered finding defendant guilty and assessing plaintiff’s damages at $3,545. To reverse a judgment entered on the verdict, defendant appeals.
    The declaration consists of four counts. The first, third and fourth charge defendant with common-law negligence. The second count is predicated upon the wilful violation of section 21, paragraph “a” of the Mines and Miners’ Act of 1907 (corresponding section of Act of 1911, J. & A. 7489), which was in force at the time of the injury. The second count, in substance, charges that on February 4, 1911, the defendant was operating the coal mine in question and plaintiff was in the employ of defendant as a coal digger; that in the performance of his duties it was necessary for him in going to and from his work tó pass through the second southeast main entry in said mine, which was used as a single track haulage road on which the trains of pit cars were moved by machinery; that plaintiff and others traveled on foot to and from their work through said entry; that defendant wilfully failed to cut in the said walls of said haulage road places of refuge not less than three feet in depth, four feet wide and five feet high and not more than twenty yards apart, or to provide a clear place of at least three feet between the sides of the cars traveling on said haulage road and the side of the road; that while traveling on foot to his work in said entry a train of cars, or trip, struck him by reason of defendant’s wilful failure to comply with the statute and plaintiff was unable to escape from said cars or trip and was crushed between the same and the side of the entry and had his hip broken and was otherwise permanently injured. The defendant filed the plea of general issue to all the counts.

      Abstract of the Decision.
    1. Appeal and ebbob, § 1526

      —when giving of erroneous instruction harmless error. The giving of an erroneous instruction in relation to one count in the declaration, held harmless where the verdict may be sustained under a different count.
    2. Appeal and ebbob, § 1734*—when errors not assigned on first appeal cannot be urged on second appeal. Alleged errors in instructions cannot be urged where the same instructions were given but were not assigned for error on a prior appeal.
    3. Mines and minebals, § 106*—when rule of mine abandoned. Evidence held to show that a posted rule of the mining company prohibiting employees to travel on a haulage road of the mine had abandoned and was not in force at the time of an injury to an employee, where it was the habit of the employees to walk to and from work through the haulage way and the company itself had abandoned the rule.
    4. Mines and minebals, § 181*—when question whether violation of Miners Act was proximate cause of injury is for jury. In an action by a miner to recover for personal injuries alleged to have resulted from a wilful failure of defendant to provide places of refuge in compliance with paragraph “a” of section 21 of the Mines and Miners’ Act of 1907 (corresponding section of Act of 1911, J. & A. If 7489), heló under the facts of the case that the question whether the violation of the statute was the proximate cause of the injury was a question for the jury.

      It is conceded that at the time of the accident no places of refuge were constructed and maintained in this haulage way as required by section 21 of the statute, and that there was not a clear space of three feet wide on either side of the entry between the sides of the cars and the entry, but it is contended that the failure to provide said place of refuge was not the proximate cause of the injury.
    Charles Troup, for appellant; Mastin & Sherlock, of counsel.
    Thomas A. Graham, for appellee; Charles W. Fleming, of counsel.

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

   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Lawrence D. Benedict, Appellant, v. John H. Holmes et al., Appellees.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 5, 1914.
    Statement of the Case.
    Action by Lawrence D. Benedict against John H. Holmes and C. J. Keiser upon the following written instrument:
    “In consideration of the purchase price paid to us for the timber described in attached bill of sale, said timber standing on Sections 2, 3, 10 and 11, Township 31 North, of Range 9 West, we hereby agree to indemnify L. D. Benedict, his heirs or assigns, against any loss or damage which may be caused him by reason of the existence of any mortgage or incumbrance on the above described premises.
    (Signed) O. J. Keiser,
    J. H. Holmes.”
    Defendants sold by bill of sale to plaintiff the timber standing upon about three hundred acres of land for the purchase price of $2,250. These lands, together with others, were incumbered with mortgages. After the bill of sale was executed and delivered, the agreement above set out was executed. Plaintiff began to remove timber from the land and cut timber therefrom for nearly a year, when a bill was filed to foreclose the mortgage and plaintiff was enjoined from removing any timber from the premises. Plaintiff procured a modification of the injunction to the extent of permitting him to remove from the premises the timber remaining thereon which had been cut. The case was tried before the court, without a jury, who found the issues in favor of plaintiff and assessed his damages at $2,522.70. This amount includes the original purchase price together with interest thereon, the attorney’s fees and expenses paid by plaintiff in procuring the modification of the injunction in the foreclosure suit.
    Abstract of the Decision.
    1. Indemnity, § 3

      —when agreement without consideration. A written agreement by vendors reciting that in consideration of the purchase price paid to us for standing timber “described in attached bill of sale, * * * ” we agree to indemnify the purchaser against loss or damage which may be caused him by reason of the existence of any incumbrance on the premises, held to be without sufficient consideration since the only consideration for the agreement was the executed bill of sale.
    2. Appeal and ebbob, § 1078*—necessity of assignment of cross-errors. On appeal from a judgment allowing a recovery on an indemnity contract which has no sufficient consideration to support it, the Appellate Court must affirm the judgment where no cross-errors are assigned.
    Plaintiff not being satisfied with the amount of the judgment, appeals.
    Rinaker & Rinaker, for appellant.
    L. M. Harlan, L. S. Harvey and Peebles & Peebles, for appellees.

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

   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Mary Brown, Administratrix, Appellant, v. City of Decatur, Appellee.
    1. Workmen’s Compensation Act, § 3

      —when city engaged in maintenance of water plant is employer within the Compensation Act. A city engaged in the maintenance of water mains in connection with its water works plant, held to be an employer engaged in maintaining a structure within the meaning of section 2 of the Workmen’s Compensation Act of 1911, J. & A. f 5450, which provides that the act shall apply to an employer “engaged in building, maintaining or demolishing of any structure.”
    2. Workmen’s Compensation Act, § 1*—word “structure" in Compensation Act construed. The word “structure” in section 2 of the Workmen’s Compensation Act of 1911, J. & A. If 5450, means anything that is built or constructed.
    3. Workmen’s Compensation Act, § 11*—when workman is killed while performing act incidental to his employment. Where a workman.for a city water works department was ordered to bring his rubber boots and assist other employees in fixing a leak in the water mains located at a place between railroad tracks, and after his arrival when he was attempting to go to a hand car standing on the tracks, for the purpose of sitting on it to take off his shoes and put on the boots, he was struck by a train and killed, held that the deceased at the time of the injury was in the performance of an act incidental to his employment, and that the risk which caused his death was also incidental to his employment within the meaning of section 1 of the Workmen’s Compensation Act of 1911, J. &. A. If 5449.
    Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded with directions.
    Opinion filed May 5, 1914.
    Le Forges, Vail & Miller, for appellant.
    Baldwin & Carey and Frank M. Cox, for appellee.

       See Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Macon county on an appeal in that court from an award of arbitrators appointed under the provisions of the Act of June 10, 1911, commonly called the Illinois Workmen’s Compensation Act. (J. & A. fifí 5449 et seq.) The arbitrators awarded appellant compensation in the sum of $2,496. On an appeal from said award to the Circuit Court on a trial de novo the judgment of the court reversed the award of the arbitrators and dismissed appellant’s claim.

Appellant’s intestate was killed October 19, 1912, and subsequently appellant presented her petition to the County Court, as provided by said act, asking the court to appoint an arbitrator to act with the arbitrators appointed by herself and by her intestate’s employer. The court appointed an arbitrator and the three arbitrators proceeded to hear the matters in. dispute and filed its report with the Secretary of the State Bureau of Labor Statistics, which report awarded to appellant the said sum as the amount of compensation to be paid to her under said act for the death of her intestate. Both appellant’s intestate and appellee had accepted the provisions of the act in so far as they applied to the employment. It is admitted that the amount of compensation awarded by the arbitrators is correct, if compensation is recoverable at all. There is no apparent conflict as to the facts, but the principal contentions of appellee are that the employment of the deceased was not one of the employments covered by the act and that his death was not caused by the sort of injury for which the act allows compensation, that is, that it did not arise out of his employment. It is also suggested that appellee was not an employer maintaining a structure within the meaning of the act.

Appellee is a municipal corporation and operates its own filtration plant and water system, and as a part of this system operated and maintained a system of water mains for the supplying of water to the city. One of these water mains ran beneath the surface of a public highway lying a short distance east of the eastern boundary of the city, called Gedde’s Lane. Gedde’s Lane runs north and south across the right of way of the Wabash Bailróad Company. The tracks of the railroad consist of two main line tracks and a number of switch tracks lying on either side of the main tracks. Plaintiff’s intestate, Brown, on the day in question was, and had been for about a year prior thereto, an employee in the City Water Works Department. A leak had been discovered in the water main at the Gedde’s Lane crossing and had been located at a point between the south main track and the next switch track south of it. A. 0. Cochran, foreman and employee of the water department, had charge of the work of repairing this leak. Cochran ordered Brown and one Walmsley, another employee, to go out to the crossing and repair the leak. Cochran himself and Walmsley arrived at the crossing about half past one in the afternoon and Cochran set Walmsley to work immediately. Walmsley, at Cochran’s request, had brought with him a pair of rubber boots to wear while repairing the leak. A hand ear was standing a short distance, about ten steps, from the leak on one of the switch tracks. When Cochran and Walmsley arrived at the place Walmsley sat down on the hand car, took off his shoes and coat and put on the rubber boots. He left his shoes and coat on the hand car. Walmsley immediately began to dig out the dirt and mud around the leak, while Cochran kept watch for approaching trains. Brown had been doing some other work that day and before Cochran and Walmsley went out to repair the leak Cochran telephoned to Brown to come out there and assist Walmsley. Cochran told Brown to bring his rubber boots with him “so that he could use them if it was muddy and he needed them to get into the hole.” Brown arrived about two o’clock and brought some caulking tools in a bucket and a pair of rubber boots. He deposited the bucket with the caulking tools by the hole and Cochran gave him his instructions, which were that one man should watch for the trains while the other worked. Cochran did not intend to stay after Brown arrived, and testified that he gave these instructions to Brown and Walmsley because he recognized the danger of working there between the tracks on which the trains were constantly passing. After Brown received his instructions from Cochran he proceeded towards the hand car for the purpose of sitting on it while he took off his shoes and put on his rubber boots. It was the only place on which he could sit unless he sat on the ground. He had proceeded but a short distance towards the hand ear, carrying his rubber boots, when he was struck by an engine hauling a passenger train, and killed. There is no conflict over the material facts. The trial court found as a proposition of fact that it was an inference of fact that Brown in attempting to cross the railroad tracks was doing so for the purpose of going to the hand car in order to remove his shoes and put on his rubber boots for the purpose of his work. The trial was had before the court without a jury and as no cross-error has been assigned to this finding of fact it must be conceded to be true. However, the evidence fully sustains this inference of fact and it is correct. The trial court held that appellee was an employer engaged in maintaining a structure and that the injury was received in the course of the employment of deceased, but that it did not arise out of said employment, and that appellee was not liable to pay compensation, and dismissed the petition.

Section 2 of the act (J. & A. 5450) provides as follows: “The provisions of this Act shall apply to every employer in the State engaged in the building, maintaining or demolishing of any structure.” Municipalities are not excepted from the provisions of the act, and it is clear that appellee, the City of Decatur, is an employer within the intention of the act, provided it was engaged in the building, maintaining or demolishing of any structure.

It would require a most strained and unreasonable construction to hold that the maintenance of water mains in connection with a water works plant would not be the maintaining of a structure. The word “structure” commonly means anything that is built or constructed, and that it was the intention of the Legislature that such should be its definition in the construction of this act there can be no doubt.

It is conceded that the injury occurred in the course of the employment of plaintiff’s intestate, but it is insisted by appellee that it did not arise out of said employment. The Illinois Act is substantially adopted from the English Acts of 1897 and 1906 (Stat. 60, 61, Viet. ch. 37,- Stat. 6 Edw. 7, ch. 57), and it will be presumed that the construction given to them by the English courts is to be applied to the Illinois Act unless such construction is inconsistent with the spirit and policy of the laws of this State. Section 1 of the Illinois Act (J. & A. j[ 5449) provides as follows:

“Any employer covered by the provisions of this Act in this State may elect to provide and pay compensation for injuries sustained by any employee arising out of and in the course of the employment according to the provisions of this act, and thereby relieve himself from any liability, for the recovery of damages, except as herein provided. ’ ’

Section 1, subsec. 1 of the English Acts provides as follows:

“If in any employment, (to which this act applies) personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer * * * shall be liable to pay compensation.”

The title of the Illinois Act is: “Ax Act to promote the general welfare of the people of this State, by providing. compensation for accidental injuries or death suffered in the course of employmentThe generic classification of the injuries for which an employer is liable under the act is those that are received in the course of the employment, but these are limited and restricted to such as also arise out of the employment. It is conceivable that in many instances it might be difficult to determine the distinction between injuries received in the course of employment and those that arise out of such employment. The injury received in this ease was caused by an agency beyond the control of the employer.

The first question which naturally presents itself for consideration is, was the deceased at the time of the injury in the performance of an act incidental to his employment. He was proceeding to the hand ear for the purpose of putting on his rubber boots. He had been directed by the foreman, Cochran, to bring his rubber boots with him. If it should be of any importance that he should have received an express order from his employer to wear said rubber boots, such order will be implied from the fact that he was directed to bring them with him. However, it was natural, proper and incidental to the work which he was to perform to wear rubber boots regardless of any order or direction from the employer. An employee can more efficiently perform his duties to his employer if attired in apparel inuring to his comfort and health while in the performance thereof. Walmsley, with the acquiescence of the foreman at least, had used the hand car for a similar purpose. Deceased saw Walmsley’s shoes and coat on the hand car, which was about ten steps away, and as it was the only object on which he could sit while he put on his boots, unless he sat upon the ground between the tracks, he was not acting out of the sphere of his employment in attempting to go to the hand car for said purpose. The act he was doing at the time was incidental to and in the furtherance of his duties to his employer. Some of the English cases have given a very liberal construction to the question of what acts of employees are incidental to their employment. In the case of Keenan v. Flemington Goal Co., 5 Fraser 164, 4 N. C. C. A. 122, a miner quit work temporarily to get a drink at a boiler. There were two ways of reaching the boiler, one a safe and usual way and the other a dangerous way. He chose the dangerous way and in returning was killed. Compensation was allowed and it was held that a man does not cease to be in the course of his employment every time he, for some necessary reason, leaves his work, and that it was a necessary reason for stopping work to get a drink of water, because when a man feels thirsty it hinders him from working with vigor. In the case of Wilson v. M’LaugJilin, etc., Sess. Cas. 529, a workman was employed to load and unload trucks hauled by a traction engine. While riding on one of them, and when under the influence of liquor, he dropped his pipe, and in getting down to pick it up he was run over. Compensation was allowed, and it was held that he was doing a thing which a man while working may reasonably do. A workman of this sort may reasonably smoke, he may reasonably drop his pipe, and he may reasonably pick it up again,” and it was held that his attempt to get the pipe was merely an incident in the day’s work. It is urged that going to the hand car to put on his boots was a mere act of convenience for the personal benefit of the deceased. Counsel confuses the act itself with the manner of doing the act. The criterion is what was the deceased doing, and not what was the manner in which he was doing it. If he was attempting to perform an act incidental to the duties of his employment, it matters not that he took a more convenient way of doing it than was necessary, nor that he took a more dangerous way than was necessary. Keenan v. Flemington Goal Co., supra; Astley v. Evans, v K. B., 1036, 3 N. C. C. A. 239; Evans & Co. v. Astley, A. C. 674, 3 N. C. C. A. 239. Compensation has also been allowed when the employee has been injured while performing his duties in a manner in direct disobedience to his orders. In Harding v. Brynddu Colliery Co., 2 K. B. 747, 2 N. C. C. A., 864, 3 N. C. C. A. 276, a miner was directed to drill a hole, from a stall above into a stall below to allow gas to escape. The stall below was boarded up as dangerous. He was unable to drill the hole from the upper stall and asked permission to go into the lower stall to tap in order to expedite the work. Permission was refused him, and he deliberately disobeyed, went into the dangerous stall and was injured. Compensation was allowed. In Conway v. Pumpherston Oil Co., Sc. Sess. Cas. 660, 2 N. C. C. A. 865, 3 N. C. C. A. 276, a miner in direct disobedience to orders went into an entry filled with gas to get a pick which he had left there the previous day and was injured. Compensation was allowed and it was held that he was fetching a pick for the work in which he was engaged and was working within the general.sphere of his employment. In Whitehead v. Reader, 2 K. B. 48, the injured employee was a. carpenter, part of whose duty it was to sharpen tools at a grind stone operated by machinery. He had been forbidden to touch the machinery. The driving belt slipped and in trying to adjust it he received the injury complained of. Compensation was allowed and it was held that he was performing an act incidental to his master’s business and was not idling or doing something which was clearly beyond the scope of his employment.

It is further contended that being struck by the engine while crossing the tracks was a risk shared by all mankind and was not such a hazard as was incidental to his employment. Bisks incidental to the employment do not mean such as are peculiar to the employment in question as distinguished from other employments. In Warner v. Couchman, 1 K. B. 351, 1 N. C. C. A. 51, it was said: “The law does not say ‘arising out of his employment and out of that employment alone.’ Other employments have nothing whatever to do with the question.” If the risk was such that by reason of the work in which he was engaged, in the place where he was engaged and in the manner in which he was compelled to perform that work, he was more readily exposed to it than the public generally, then -it was abnormal and incidental to his employment. That a person digging a trench in the midst of railroad tracks over which trains are constantly passing is more exposed to the risk of being injured by trains than the public generally in passing over railroad tracks is self-evident, and while the deceased was not injured while actually digging the trench he was on the tracks for that purpose and pursuant to the duties of his employment and was engaged in an act incidental to- his employment. The English authorities have also given a liberal construction to this phase of the question. In the case of Pierce v. Provident Clothing Co., 1 K. B. 997, 3 N. 0. C. A. 279, a canvasser in a London district was killed on the streets by an electric car while riding a bicycle. He was permitted to ride a bicycle by his employer, but not required to do so. Compensation was allowed on the ground that his duties necessarily involved his spending a great part of the day in the streets, and he was, beyond all doubt, much more exposed to the risks of the streets than ordinary members of the pubic. Under a substantially similar state of facts, compensation was also allowed in the case of M’Neice v. Singer Sew. Mach. Co., Sc. Sess. Cas. 12, 3 N. C. C. A. 278 To the same effect is Millar v. Refuge Assurance Co., Ltd., Sc. Sess. Cas. 37, 3 N. C. C. A. 279. In Challis v. London & S. W. Ry. Co., 2 K. B. 154, 3 K C. C. A. 273, a locomotive engineer was injured by a stone thrown by a mischievous boy from a bridge below which the train was passing. Compensation was allowed, on the ground that it was a matter of common knowledge and experience that a train in motion has great attraction for mischievous boys, and that it was a risk incidental to the employment. In Anderson v. Balfour, 2 Ir. Rep. 497, 3 N. C. C. A. 275, a gamekeeper was attacked by a poacher. Compensation was allowed on the ground that it was a matter of common knowledge that hospitality exists between gamekeepers and poachers and that one of the risks attached to the occupation of gamekeeper was the risk of this sort of injury. In Nisbet v. Bayne & Burne, 2 K. B. 689, 3 N. C. C. A. 268, a cashier was murdered on a train while carrying money to a colliery to pay the men. Compensation was allowed on the ground that the man was exposed to the special risks assumed by cashiers, who are known to carry considerable sums of money on regular days by the same route to the same place, of being robbed. In Andrew v. Failsworth Industrial Society, 2 K. B. 32, 3 N. C. C. A. 276, a bricklayer on a scaffold thirty feet above the ground was struck by lightning during a thunderstorm. Compensation was allowed on the ground that the position of the bricklayer was a very exposed one and on account of the elevation from the ground the risk was appreciably greater than the normal risk. In Davies v. Gillespie, 105 L. T. 494, the first officer of a vessel in a West Indian Port received a sun stroke while superintending the loading of a cargo. He was compelled to stand on the steel deck of the vessel for a long time exposed to the full glare of the sun, and compensation was allowed on the ground that it was an abnormal risk. In Morgan v. Owners S. S. “Zenaida,” 2 B. W. C. C. 19, a common seaman on a vessel in a Mexican port was ordered over the side to paint the ship. He protested on account of the excessive heat, but was ordered to continue. Compensation was allowed because the risk was abnormal.

We have not attempted to comment upon or differentiate between all the cases that have been cited in the - briefs, but we are of the opinion that not only from the principles of construction enumerated from the cases mentioned, hut from á plain, common-sense view of the act and the facts in this case, that at the time of the injury appellant’s intestate was in the performance of an act incidental to the duties of his employment, and that the risk which caused his death was also incidental to his employment.

The judgment of the Circuit Court will therefore he reversed and the cause remanded with directions to enter judgment in favor of appellant on the award of the arbitrators as contained in said report.

Reversed and remanded ivith directions.


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    A. H. Cochran, Appellant, v. C. C. Bowersox, Appellee.
    1. Bills and notes, § 327

      —when defense of accommodation maker sufficient. In an action on a promissory note where the defense was that the defendant had signed the note merely for the accommodation of a hank, which was the payee in the note, to enable it to cover up an indebtedness of another party, the real principal, so that the bank could pass an inspection by the bank examiner, that the bank promised not to negotiate the note, but in violation of its promise transferred it to plaintiff after maturity, and that the plaintiff took the note with full knowledge of all the facts, held that such matters constituted a complete defense to the action and a verdict for defendant was sustained.
    2. Bills and notes, § 106*—when not negotiable. A note drawn payable to a bank without specifying_ it is payable to the order of the bank or to the bank or its order, held'not negotiable.
    3. Bills and notes, § 230*—rights of assignee of non-negotiable note. Assignee of a non-negotiable note takes it subject to all defenses that might be interposed by the maker against the payee.
    Appeal from the Circuit Court of Jersey county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the October ' term, 1913.
    Affirmed.
    Opinion filed May 5, 1914.
    Rehearing denied June 25, 1914.

      Hamilton & Hamilton, for appellant.
    Ferns & Sumner, and Abbott & Edwards, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

This is an action in assumpsit brought by appellant, A. H. Cochran, against C. C. Bowersox, appellee, E. M. Davis and Annie B. Cross, to recover, on a promissory note, dated April 15,1911, payable to the National Bank of Jerseyville, Illinois, bearing six per cent, interest, for the principal sum of $5,250, due sixty days after date and executed by appellee, Bowersox. Said note is a collateral form note and recites that fourteen bonds of $500 each of the A., J. & P. By. Co. were pledged as collateral security and contains power of sale of said bonds in case of default in the payment of said note. It is indorsed by Annie B. Cross, by E. M. Davis, her attorney in fact, and E. M. Davis, and is also indorsed by the bank to the order of A. H. Cochran, appellant. A credit of $700 from the sale of the collateral security January 15, 1912, also appears on the back of said note. The declaration consists of a special count declaring on said note and the common counts. The defendant, Annie B. Cross, defaulted. E. M. Davis had not been served when the case was tried. Appellee, Bowersox, appeared and filed a plea of general issue and several special pleas, which were subset quently amended, and the case was finally tried on the plea of general issue, the second amended plea, the fourth plea and the fifth amended plea. The second plea as amended, in substance, alleges that prior to the execution of the note defendant, E. M. Davis, was indebted to the bank in the sum of $15,000; that said bank feared said indebtedness would not pass the inspection of the National Bank Examiner; that appellee at the instance and request of said bank then and there became maker on some of the notes representing said indebtedness of Davis as an accommodation maker for the accommodation of said bank; that said bank agreed it would not negotiate said notes; that as said notes became due, renewal notes were executed as accommodation notes under said agreement until the last renewal note, which is the note sued on; that said bank accepted said note from defendant as such accommodation maker and not otherwise; that said defendant was not indebted to said bank, or to E. M. Davis, when said notes were executed, and received no valuable consideration therefor, of which appellant had full knowledge, and that the pretended assignment of said note was made after maturity. The ftiurth plea avers that said note was signed by appellee as accommodation maker for and at the instance and request of said bank and E. M. Davis, the real principal; that appellee received no consideration for so signing said note; that said bank promised that said note would not be negotiated, assigned or transferred by it; that said bank in procuring" said Bowersox to sign said note as accommodation - maker acted through its officers and agents, one of whomwas plaintiff, Cochran, who assisted and advised in that behalf, and had full kh'owledge that said Bowersox signed said note as an accommodation maker, and without consideration, and on said promises not tó negotiate, etc.; that after the maturity of said note the same was negotiated to Cochran and received by bfm with full knowledge of the foregoing facts. The fifth amended plea avers that said note was signed by Bowersox as accommodation-maker for and at the instance and request of said bank and E. M. Davis, the real principal; that Bowersox received no consideration ; that said bank in procuring Bowersox to sign said note acted through its officers, one of whom was Cochran, plaintiff, who assisted "and advised in that behalf and had full knowledge of said facts, and that said note was negotiated to Cochran after maturity and received by him with full knowledge of said facts, and that Cochran did not pay any valuable consideration for said note. An affidavit of amount due was filed with the declaration, and an affidavit of merits to the whole cause of action was filed with the pleas and the pleas were sworn to. Eeplications were filed to these pleas denying each allegation thereof. On. the trial of the case a verdict was rendered in favor of appellee.

The history of this controversy began in February, 1907. At that time defendant, E. M. Davis, had organized the St. Louis Fire Insurance Company and the evidence tends to show that he desired to procure some money for the benefit of said insurance company. He was a son-in-law of Andrew M. Cross, who was president and majority stock owner of the National Bank of Jerseyville. The total amount said bank could loan to any one person under the banking laws at that time was $6,600. Davis was already indebted to the bank on various notes aggregating $5,500.- The evidence for appellee tends to show that Mr. Cross, president of the bank, and Davis procured one C. C. Conner to sign a note for the principal sum of $6,600, payable to the bank. Thirty-five shares of stock of the insurance company were placed in the name of Conner and assigned as collateral security for the note. Thereupon the sum of $6,600 was deposited to the credit of the insurance company in the National Bank of Jerseyville. All the entries in the bank books concerning the transaction are in the handwriting of Mr. Cross, its then president. Conner owed the bank nothing at the time, and owed Davis nothing, and did not own any stock in the insurance company. There is no claim that any consideration ever passed to Conner for the execution of said note. Conner testified that, while he had forgotten the details of the transaction, yet it was executed at the request of Cross and Davis substantially for the reasons above stated. The note ran in the name of Conner for about a year and then was renewed in the name of Arthur J. Davis, a brother of defendant, E. M. Davis, and the collateral stock was shifted to the name of Arthur J. Davis. In December, 1908, defendant, E. M. Davis, paid $1,350 on the note, thereby reducing it to $5,250. At this time the note of A. J. Davis was taken up and cancelled, and it was substituted by two re.newal notes, one for $2,700 and the other for $2,550, both notes being executed by C. C. Bowersox, appellee, and one B. B. Sawyer, and the thirty-five shares of insurance stock deposited as collateral were again shifted, eighteen shares thereof being placed in the name of Bowersox, and assigned as collateral for the $2,700 note, and seventeen shares being placed in the name of Sawyer, and assigned as collateral for the $2,550 note. At this time neither Sawyer nor Bowersox was indebted to defendant Davis,' nor to the bank. The latter had never been in Jerseyville, did not know any of the officers of the bank, and the evidence tends to show that prior to the taking of said last two mentioned notes Davis had a conversation with Heller, assistant cashier of the bank, about arranging to have some person sign the two notes so Davis ’ name would not appear on the notes, and defendant Davis testifies that the agreement between him and the bank, through Heller, was that the obligation should remain the obligation of Davis, and that the "accommodation party should not be held liable and the notes would not be negotiated, and this arrangeinent was communicated to , Bowersox. On February 1,1909, Mr. Cross died. D. J. Murphy then became president of the bank and appellant, Cochran, who had been cashier up to this time, was made vice-president. After Mr. Cross ’ death, appellant Cochran, Heller and Murphy looked after this loan, and all of the transactions thereafter were consummated through one or the other of these officers of the bank. These two notes were renewed every ninety days by Sawyer and Bowersox signing new notes. All the renewal notes were sent to Davis and he paid the interest thereon, the cancelled notes were returned to him, the renewal notes to be signéd were mailed to him, and the correspondence introduced in evidence clearly shows that the bank and its officers knew that the debt was that of Davis. The renewal of these two notes was kept up until October, 1910, when D. J. Murphy, president of the bank, wrote to defendant, Davis, the following letter:

Exhibit 25.

“Granite City, 111., October 14th, 1910. “Mr. E. M. Davis,
“St. Louis, Mo.
“Dear Sir:
“I have been trying to see you for some time, but so far have failed to do so, and several times 1 have called on the ’phone only to find you out. The matter about which 1 wish to see you is the loan you have at Jersey-ville. The Sawyer and Bowersox notes are past due, and something must be done. At the last meeting of the Board of Directors it was decided that if these loans are to continue, either under the same name or under others, collateral form notes must be signed, and if St. Louis Fire Insurance stock is to be the collateral, the collateral must have a par value twice the amount of the loan. I do not see why two notes should be made under the conditions. It seems to me the Bowersox and Sawyer notes might just as well be combined, thus making one loan of $5,250, with collateral in the double amount. The examiner questioned us pretty closely the last time he was there, on those loans, and we are anxious to get the matter into such shape as will leave us open to the least criticism. Will you not attend to the matter at once if you have not already done so?
“Tours very truly,
“D. J. Murphy.”

From this letter it is clearly shown that this loan was, as a matter of fact, the debt of defendant Davis and was simply carried on in the name of these various makers of the different notes and that it was immaterial to the bank who signed the notes or note. Pursuant to this letter one note for the principal sum of $5,250 was drawn up in lieu, of the two former notes and appellee, Bowersox, was requested to sign it, which he did. The collateral stock which had heen in the name of Sawyer was then shifted to the name of Bowersox, and all of said stock held as collateral for the new note, which was thereafter renewed by malting new notes signed by Bowersox until the note sued on in this case was executed. After the note had been renewed in February, 1911, the bank at the request of defendant Davis turned over to him, Davis, the Fire Insurance Company stock which had been held as collateral and defendant Davis substituted therefor bonds of the A., J. & P. By. Co. of the face value of $7,000. Bowersox knew nothing of such substitution, and afterwards these bonds were sold for $700 and the note sued on in this case was credited with that amount. After the substitution of the railway bonds as collateral, at the request of the bank through Heller, cashier, defendant Davis indorsed said note on the back, also indorsed the name of Annie B. Cross by him as her attorney in fact. This note was again renewed April 15,1911, signed by Bowersox and indorsed on the back by the same parties. The name of Davis did not appear on any of these notes in any of these transactions until the renewal note was made in February, 1911. The note after its maturity was assigned by the bank to A. H. Cochran, who was then vice-president of said bank. Cochran himself wrote many letters to Davis in regard to the different renewals of these different notes, sending the renewal notes to him and took part in many of the transactions concerning them. Heller, the cashier, also wrote a number of letters in regard to the notes. Appellant, Cochran, in a letter to Davis of March 30, 1909, says, among other things: “We also have your favor of the same date regarding notes of Bowersox and Sawyer. These notes for $2,700 and $2,550. We notice that you have figured the interest on the $2,550 note at three per cent. This, we beHeve, represents the amount of the balance of the St. Louis Fire Insurance Company. We did not know just what your arrangement with Mr. Cross was regarding interest on this account, but if that was the arrangement between you and Mr. Cross, of course it is all right.” On December 28, 1909, Cochran wrote to Davis a letter stating, among other things: “Also find enclosed notes $2,550 and $2,700, Bowersox and Sawyer, in renewal for those expiring 30th inst., on which you had paid .the interest to 30th inst. Please have parties sign as indicated by pencil memorandum.” On October 24, 1910, Heller, the cashier, in acknowledging the execution of the $5,250 note of Bowersox in consolidation of the two notes signed by Sawyer and Bowersox, which was suggested by President Murphy’s letter heretofore mentioned, wrote to Davis as follows: ‘In lieu of the Bowersox note for $5,250, sent us in your letter yesterday, enclosed herewith find note of B. B. Sawyer and C. C. Bowersox, cancelled. The interest due on the said notes amounts to $14.88. Mr. Murphy called us up the other day and said that we could expect the examiner any day, so I was somewhat anxious to get the matter in proper shape. ’ ’ The fact is .established beyond any question that the indebtedness evidenced by the note sued on was that of defendant Davis and not of Bowersox. All the testimony in the case conclusively shows that all the officers of the bank, including Cochran, appellant, knew the real status of this indebtedness. The insurance company failed, as did also the railway company, and defendant Davis went to Colorado to reside. The evidence does not show that appellee, Bowersox, was a man of any financial means, and it is highly improbable that appellant, Cochran, gave any valuable consideration for the assignment of this note to him by the bank. Cochran, Murphy, Heller and Cross were all members of the board of directors of the bank and constituted a majority thereof and were conversant with all of these transactions during all these years, and their knowledge under such circumstances must be held to be knowledge of the bank, and whatever agreement was made between them and Davis, whether the particular officer who made the agreement had authority or not, has been ratified by the bank. Heller, Murphy and Cochran all testify that they had no knowledge that this note was accommodation paper and insist that the weight of the evidence shows that it was not. Assuming this to be true and that the note was given in the usual course of business, the assignment to appellant was made after maturity with full knowledge that there was no consideration for it. Moreover, the note itself does not contain any words of negotiability, as it is payable to the bank, and not to the order of the bank, nor to the bank or its order. Under section 8 of the Negotiable Instrument Act of 1907 (J. & A. ff 7647), it has been held that a note so drawn is not negotiable. Peterson v. Emery, 154 Ill. App. 294. This is strong corroborative evidence that the agreement was that the note was not to be negotiated. If this note was not accommodation paper, appellant took it subject to all the defenses that might be interposed by Bowersox in an action on the note if brought by the bank.

If it was accommodation paper and the bank was the accommodated party, the rule is universal that the accommodated party can never recover against the accommodating party, and the note being non-negotiable and merely being executed for the purposes of accommodating the bank in covering up the indebtedness of Davis, for the purpose of passing a bank examination, and Cochran having taken this note after maturity with full knowledge of these conditions, and also of the restriction that the note should not be negotiated, and the jury having found for appellee on these issues, we think that a complete defense to the note has been made. Keenan v. Blue, 240 Ill. 177.

Criticism has been made in regard to some of the instructions and to the admission of some of the evidence, but feeling convinced that the verdict is right on the merits, we do not think there was any harmful error n regard thereto, and the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Frances Van Wormer, Appellee, v. Metropolitan life Insurance Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Sangamon county; the Hon. Jambs A. Creighton, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 5, 1914.
    Statement of the Case.
    Action by Frances Van Wormer against the Metropolitan Life Insurance Company, a corporation, to recover on three policies of insurance issued by the defendant on the life of Clara E. Cake, the beneficiary being her husband. The policy was assigned by the insured and her husband to the plaintiff. The insured, Clara E. Cake, died of pneumonia.
    The only errors assigned relate to the cause of action charged in the second count of the declaration, which was based on a policy for one thousand dollars. To this count the defendant filed nine pleas setting up alleged false answers made by Clara E. Cake in her application for the policy. To these pleas replications were filed. The jury found the issues in favor of plaintiff and to reverse the judgment entered on the verdict, defendant appeals.
    The aplication and the policy constituted the contract of insurance, and by the terms thereof the alleged false answers are representations and not warranties.

      Abstract of the Decision.
    1. Insurance, § 904

      —when verdict on issue as to false answers in application sustained by the evidence. In an action for life insurance where the defense was that the insured made false representations in her answers to .questions asked in the application concerning her health, held that a verdict for plaintiff could not be disturbed as against the weight of the evidence, where the questions and answers were stricken out by a long cross mark drawn through them, and there was a conflict in the evidence whether the questions and answers were in fact made and given and the weight of the evidence did not show that the answers were wilfully false.
    2. Insurance, § 214*—construction of answer where question in application embraces more than one question. Answer “No” to a question asked in an application for life insurance: “Have you ever been an inmate of, or have you ever attended for treatment, an asylum, hospital or sanitarium? If yes, when, how long and for what?” construed as not constituting a false representation, since the question embraced at least three questions, and the answer so. far as the evidence showed was correct as to two of them and the fact that the words “sanitarium” and “asylum” were connected with “hospital” might have misled the applicant.
    3. Insurance, §214*—when answer in application not shown to be false. Answer “No” to a question asked in an application for insurance: “Have you had , any other illness than the above named?” held not shown to be a false representation where it did not appear that she had any other illness except trivial complaints.
    4. Insurance, § 214*—when answer to question in application not false. Answer “No” to a question asked in an application for insurance: “Have you consulted any other physician?” If so, when and for what?” held a proper answer where no physician had been named in answer to a previous question.
    5. Insurance, § 214*—when answer to question in application not false representation. Answer “None” to a question asked in an application for life insurance: "What is name and address of your usual medical attendant?” held not shown by the evidence to be a false representation, where it did not show which one of a number of physicians treating her for trivial ailments she considered aa her usual physician.

      Conkling & Irwin, for appellant.
    Smith & Friedmeter, and Sampson & Putting, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

6. Insurance, § 214*—when answer to question in application literally correct. Answer "No” to a question asked in an application for insurance: "Have you had any other medical attendant, or have you been prescribed for by any other physician than the above named?” held literally correct where no physician had been named in the application.

7. Insurance, § 329*—when insurance estopped from questioning the integrity of the answers in the application. The striking out of certain questions in an application for life insurance, held sufficient to put the insurance company upon notice if the application was unsatisfactory, and that the company by accepting the application in such condition and issuing the policy thereon was thereafter estopped to question the integrity of the answers.


text:
    George E. Hawkyard, Appellee, v. H. C. Suttle, Appellant.
    1. Reference, § 9

      —right of court to adopt chancery practice in hearing exceptions to referee’s report. Upon the hearing of objections to a referee’s report under section 68 of the Practice Act, J. & A. 8605, the court is not authorized to adopt the chancery practice of passing upon each exception wholly from the evidence taken before the referee.
    2. Account, § 44*—section 68 of Practice Act construed. The plain intention of section 68 of the Practice Act, J. & A. fl 8605, is to relieve the court and jury from the consideration of those items in an account over which there was no controversy, and as to the items that are excepted to contemplates that there shall be a trial de novo in the Circuit Court and that both parties shall have the right to introduce testimony in regard thereto the same as in other law cases.
    3. Reference, § 9*—when exceptions to referee’s report filed in apt time. Facts held to show that exceptions to a referee’s report were filed in apt time where they were among the files in the case when it was considered hy the court, were marked filed and there was nothing to show that they were not in fact filed.
    4. Reference, § 9

      —when exceptions to report deemed filed. Exceptions to a referee’s report are considered filed when they are delivered to the clerk for that purpose.
    Appeal from the Circuit Court of De Witt county; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the. October term, 1913.
    Reversed and remanded.
    Opinion filed May 5, 1914.
    Rehearing denied June 25, 1914.
    John Fuller and Lemon & Lemon, for appellant.
    Whitley, Fitzgerald & McLaughlin and Herrick & Herrick, for appellee.

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

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

   Mr. Justice Eldredge

delivered the opinion of the court.

In January, 1905, appellant being the owner of a bank at Kenney, Illinois, also at Warrensburg, Hlinois, sold to appellee the bank at Kenney for the consideration of $8,500. Appellee afterwards claimed that the assets of the bank at Kenney had been misrepresented to him by appellant and brought this .action in assumpsit against appellant to recover on numerous items of account. The trial court by virtue of section 68, chapter 110, B. S. (Practice Act, J. & A. jf 8605), referred the cause to a referee to take the evidence and state an account. The referee found a balance due appellant and so stated in his report to the Circuit Court. The cause came on for trial in said court, and a jury having been waived the court proceeded, over the objection of appellant, to hear the exceptions filed by appellee to the referee’s report. The court reversed the findings of the referee and entered judgment in favor of appellee and against appellant for $4,716.86. The court heard no testimony of witnesses, but adopted the chancery practice of passing upon each exception to the-referee’s report wholly from the evidence taken before the referee, and sustained certain exceptions, overruled others, and made a final accounting therefrom and entered judgment as above noted.

Section 68 of the Practice Act provides: “All actions in which matters of account are in controversy, may, by order of the Court, be referred to some competent person or persons as a referee or referees to state and report an account between the parties, and the amount that may be due from either party to the other, which report, when confirmed by the Court, shall be final and conclusive between the parties and judgment entered thereon and execution issued in the manner provided by law in cases of arbitration and award, but either party may, within ten days after notice of the filing of the report, file exceptions thereto and demand a trial, in which case the action shall be tried as other cases, and upon such trial the report of the referee or referees shall be prima facie evidence of all the facts therein found and reported; and no other exceptions shall be considered on the trial than those filed as above provided.”

The plain object of a reference of this character is to eliminate from the trial, where the accounts between the parties are numerous and varied and consist of a large number of items, all those items which are not controverted, and to have a trial only on those which are disputed and to which exceptions have been filed. The plain intention of the statute was to relieve the court and jury from the consideration of those items in an account over which there was no controversy. In many cases such a reference is of great assistance and aids in arriving at a satisfactory conclusion. Banschbach v. Gillen, 148 Ill. App. 222.

The statute does not contemplate, however, that upon the filing of such exceptions that the court or jury must consider the evidence taken before the referee, nor is there any authority in the statute for the court or jury to overrule or sustain exceptions to the referee’s report. The plain intention and meaning of the statute is that as to the items which are excepted to there shall be a trial de novo in the Circuit Court, and that as to those items a trial shall be had as in other cases at law, and both parties have a right to introduce testimony in regard thereto the same as in other law cases. The fact that in this particular case the jury was waived and the cause submitted to the court for trial does not change the rule of evidence. This section does not have the effect to change an action at law to one of chancery.

Appellant contends that the exceptions of appellee were not filed in the Circuit Court in apt time. These exceptions were first filed before the referee on December 9, 1912, and in addition thereto bear on their back the following file marks: ‘ ‘ Filed Dec. 9,1912, Clerk of the Circuit Court, by Deputy. ’ ’ The mere fact that the name of the clerk or his deputy is omitted from the file mark does not prove that the same were not in fact filed. A paper is considered filed when it is delivered to the clerk for that purpose. These exceptions were among the files in the case when it was considered by the court, and there is nothing to show that they were not in fact filed. We think the facts are sufficient to ..show that they were filed in apt time.

As there was no competent evidence considered by the court below, we do not feel called upon to pass upon the same, and the judgment is reversed and the cause remanded.

jReversed and remanded.


text:
    James Kendrick, Administrator, Appellee, v. Chicago & Eastern Illinois Railroad Company, Appellant.
    1. Master and servant, § 98

      —power of State courts to construe Federal Employers’ Liability Act. Since the Federal Employers’ Liability Act supersedes State laws covering the same field, the courts of this State must be governed by the construction placed on the Act by the Federal courts.
    2. Master and servant, § 302a*—Federal Employers’ Liability Act construed as to defense of assumption of risk. Section 4 of the Federal Employers’ Liability Act excludes the defense of assumed risk only when the employers’ violation of a statute enacted for the safety of employees eontribtued to the injury or death.
    3. Master and servant, § 430*—effect of provision as to defense of contributory negligence in Federal Employers' Liability Act. Though by virtue of section 3 of the Federal Employers’ Liability Act contributory negligence is no bar to an action for the death or injury to an employee, there can be no recovery under the act in cases where the employer was guilty of no negligence contributing to the injury or death within the meaning of such section or where the employee assumed the risk.
    4. Master and servant, § 689*—when recovery for death of engineer not warranted under Federal Employers’ Liability Act. In an action under the Federal Employer’s Liability Act to recover for the death of an engineer resulting from a derailment of his engine alleged to have been caused by negligence of the railroad company in permitting its track to become defective and dangerous at a certain point, where the facts showed he was given orders to slow down at such point to ten miles per hour and that he violated the order by running at forty-five miles per hour, held that a recovery for plaintiff could not be sustained for the reason that the deceased assumed the risk of the reckless violation of the order, it appearing that the track would have been reasonably safe had the deceased not violated the order.
    Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed with finding of facts.
    Opinion filed May 15, 1914.
    H. M. Steely and H. M. Steely, Jr., for appellant.
    Thomas A. Graham, for appellee; J. M. Boyle, of counsel.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Appellant appeals from the judgment of the Circuit Court rendered against it in favor of appellee in the sum of $8,000, in an action on the case for damages resulting from the death of appellee’s intestate. The action is based upon the Act of Congress of April 22, 1908, as amended April 25, 1910, entitled “An Act Belating to the Liability of Common Carriers by Bail-road to their Employees in Certain Cases,” commonly called Federal Employers’ Liability Act. The cause was tried upon three counts of the declaration, which are all practically the same, and aver, in substance, that appellant was a common carrier engaged in interstate commerce and set out certain sections of said Act, and further allege that the deceased, John Kendrick, was employed by the defendant in the capacity of a locomotive engineer running an engine and train known as the “Dixie Flyer” from Chicago to Danville, Illinois, and that he was then and there engaged in interstate traffic over the lines of railroad owned and leased by appellant ; that it was the duty of the defendant to use reasonable care and diligence to furnish deceased a reasonably safe track and roadbed over which to operate said engine and train; that appellant, not regarding its duty, negligently permitted the sduthbound track to become defective and dangerous at a point, to-wit, one mile north of Martinton over which deceased was compelled to pass with said train, in this, that said roadbed was insufficiently ballasted, the ties thereof became and were loose, insecure, rotten, worn and out of repair, and was then and there extra hazardous and dangerous for trains to pass over the same, all of which appellant then and there knew, and of which extra hazards and dangers deceased did not know, and could not have known by the exercise of reasonable diligence; that while running said train towards the south on said track the tender of the engine jumped the track and threw the ■ engine therefrom, causing the engine to turn over and upon deceased, by reason of which he was killed.

Appellant filed the general issue and also a special plea, the latter alleging that deceased was himself-guilty of such negligence as to preclude recovery in his personal representative; that he had been notified of the dangerous condition of the track where the accident occurred and notified that in running over it he must not exceed the speed of ten miles per hour, and that after such notice and warning and order limiting speed, and with knowledge of the condition of the track, and in violation of such warning, notice and order, deceased ran his engine over such dangerous and unsafe place in the track at a speed of fifty miles per lour; that the dangerous condition in the track was only discovered two hours before the accident and that the track in its then condition was safe for an engine and train to pass over it at a speed of not exceeding ten miles per hour, but was unsafe for an engine and train to pass over it at a speed exceeding ten or fifteen miles per hour, and it was the violation of said order to run slow by the deceased which caused the accident to the train and caused the death of the plaintiff’s intestate.

The sections of the Liability Act necessary to be considered are as follows:

“Section 1. That every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation, or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier,—or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.
“Sec. 3. That in all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this Act to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee; Provided, that no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.
“Sec. 4. That in any action brought against any common carrier under or by virtue of any of the provisions of this Act to recover damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.”

The evidence shows that this was a solid train running between Chicago and Jacksonville, Florida, and that it was the duty of deceased to act as engineer between Chicago and Danville, Illinois. The train left Chicago at 9:10 p. m., and was due in Danville at 12:26 a. m. At Yard Center, eighteen miles south of Chicago, the deceased, his fireman and conductor each received the following order:

“Train Order No. A 288.
“Danville, 6-26-12.
“To C. &E. No. 95 & 25:
“Form 19. Yard Center.
“Deduce speed to ten miles per hour, near Auto Block 67-3, just north of Martinton. Bough place in track.
“F. E. D.
“Made complete 8:05 p. m. 8:05 p. m.
“By F.E.D.
“Willis, operator.”

When the engine arrived at a point about half a mile north of auto signal 67-3 deceased asked the fireman if this was about where the rough place in the track was and the fireman answered that it was. At this time he was running the engine at a speed of between sixty and seventy miles per hour, and at this point he shut off the throttle and after proceeding about a quarter of a mile further he applied the air brakes. At this time the train was running about forty-five miles an hour. About ten seconds after he applied the air brakes the tender and engine left the tracks, rolled over on their sides, the whole train was wrecked and deceased lost his life.

The rough place in the track was noticed by Train-master Freese as he was riding over it on a local passenger train between seven and eight o’clock that evening; when the train on which he was riding reached Watseka he had said slow order sent out. A number of other engineers running both freight and passenger trains received the same order, and reduced the speed of their respective trains in compliance therewith to ten miles per hour and passed over said track in safety before the accident to the train in question. The manifest weight of the evidence is' that the track at the point in question was perfectly safe for the passing of trains running ten miles per hour. The contention of appellee is that the track being unsafe for trains passing over it at the speed of forty-five miles per hour, therefore its unsafe condition contributed to the death of deceased, and that by virtue of said Act the defense of contributory negligence and assumed risk are abrogated and appellee is entitled to recover.

It has been definitely settled that the laws of the several States, in so far as they cover the same field, are superseded by the said enactments of Congress regulating the liability of interstate railway carriers for the death or injury of their employees while engaged in interstate commerce. Mondou v. New York, N. H. & H. R. Co., 223 U. S. 1. It follows, therefore, that the courts of this State must be governed by the construction placed upon said Act by the Federal courts. Section 3 provides that in all actions brought under said Act the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished in proportion to the amount of negligence contributable to such employee, provided that no such employee shall be held to have been guilty of contributory negligence in any case where the violation of any statute enacted for the safety of employees contributed to the injury or death. This section is confined wholly to the subject of contributory negligence.

Section 4 provides that in any action brought under said Act such employee shall not be held to have assumed the risks of his employment where the violation of any statute enacted for the safety of employees contributed to the injury or death. This section is confined wholly to the subject of assumed risk.

It is contended by appellee that by virtue of section 3 contributory negligence is no defense in any case brought under said Act, and that it can only be considered on the question of mitigation of damages and not even on that question when the injury resulted from a violation of a statute enacted for the safety of employees ; that if appellant was guilty of any negligence contributing to the death of deceased, then appellee is not barred from recovering even if deceased’s contributory negligence was the proximate cause of the injury. This theory seems to be sustained by the case of Louisville & N. R. Co. v. Wene, 121 C. C. A. 245,202 Fed. 887. The facts in that case show that both the plaintiff and defendant were negligent, and the negligence of defendant was not the result of the violation of any statutory duty. The court holds in that case, on the authority of Grcmd Trunk Western By. Co. v. Lindsay, 120 C. C. A. 166, 201 Fed. 836, that contributory negligence in such a case is no defense even though it be the proximate cause of the injury, and that it is only when the plaintiff’s act is the sole cause that the defendant is freed from liability under the act; but an examination of the Lindsay ease, supra, shows that the negligence of the employer contributing to the injury to the employee was the violation of a statutory duty in using a defective coupler, and the reasoning in that case hardly seems to he applicable to the Wene case, supra. The construction placed thereon by the Supreme Court of this State is that even if the violation of a statutory duty contributes to the injury, yet if it was not the proximate cause thereof, there can be no recovery. Devine v. Chicago & C. River R. Co., 259 Ill. 449. However, assuming that the rule is as stated in the Wene case, was the appellant guilty of any negligence contributing to the death of deceased within the meaning and intention of section 3? The negligence charged against appellant was not the violation of any duty imposed by any statute for the safety of employees. It is unquestionably the duty of the master to furnish the servant a reasonably safe place in which to work and reasonably safe appliances with which to do that work, but the place need be only reasonably safe for the work that is to be carried on therein, and the appliances need be reasonably safe only for the purpose for which they are to be used. It was the duty of the deceased as engineer to operate his engine in such manner and at such speed as appellant might order and direct. It was the duty of appellant to furnish deceased with a reasonably safe track on which to operate his engine in accordance with its orders. Appellant furnished deceased with a track reasonably safe for the operation of trains thereover at a speed of ten miles an hour. Deceased was ordered to pass over it at a speed not to exceed ten miles an hour. The track was reasonably safe for the duty which the deceased was to perform. The fact that he wilfully and recklessly violated his orders and made the track unsafe for the performance of his duty cannot enlarge appellant’s original duty or increase its liability. The negligence of appellant, if there was any, did not contribute to the death of deceased within the meaning and intention of section 3 of said Act.

That Congress recognized the distinction between contributory negligence and assumed risk cannot be doubted, as each subject is treated by itself in a separate section. The Act was amended in 1910, but these sections were not changed.

Turning our attention now to section 4, which deals with the subject of assumed risk, the wording therein is radically different. This section provides that in any action brought under the provisions of said Act such employee shall not be held to have assumed the risks of his employment in any case where the violation of any statute enacted for the safety of employees contributed to the injury or death of such employee. This implies that in all other cases the doctrine of assumed risk shall prevail. Under the common law as applied in Federal jurisdictions, assumed risk has always been recognized as a defense in actions for personal injuries between master and servant (Tuttle v. Detroit, G. H. & M. Ry. Co., 122 U. S. 189), and it will be noted that the act only excludes such defense when the violation of a statute enacted for the safety of employees contributed to the injury or death. In the late decision in the case of Central Vermont Ry. Co. v. Bethune, 206 Fed. 868, where the consideration of this section was directly involved, the Circuit Court of Appeals of the First Circuit held that this section limited the abrogation of the doctrine of assumed risk to instances where the violation of an express statutory duty by the carrier was charged, and that such defense was applicable to an action under the statute for the death of a railroad employee engaged in interstate commerce resulting from the alleged negligence of the railroad company in constructing its tracks too close together. The opinion reviews many decisions of Federal courts, was filed in June, 1913, and is the latest expression of said courts on the construction of section 4 that has been called to our attention.

The deceased in the case at bar was warned that the track was rough at said point and was ordered to reduce the speed of his train to ten miles an hour. He knew of the danger arising from the roughness of the track and when he, in disobedience of his orders, negligently and recklessly approached said place at a speed of between sixty and seventy miles an hour and ran over it at a speed of forty-five miles an hour, he assumed the risk and hazard of so doing. Homersky v. Winkle Terra Cotta Co., 178 Ill. 562, affirming 77 Ill. App. 42; Illinois Cent. R. Co. v. Houck, 72 Ill. 285. The deceased assumed the risk of known dangers, and his knowledge of the defective condition of the track carried with it knowledge of its obvious danger. Ross v. Chicago, R. I. & P. Ry. Co., 243 Ill. 440; Elgin, J. & E. Ry. Co. v. Myers, 226 Ill. 358; McCormick Harvesting Mach. Co. v. Zakzewski, 220 Ill. 522; Chicago, B. & Q. R. Co. v. Camper, 199 Ill. 569.

By so wilfully and recklessly violating said order in the manner shown by the evidence, the deceased not only jeopardized his own safety and life, but the safety and life of every passenger upon the train, and of every other member of the train crew The whole train was wrecked. His action was inexcusable and from any construction of the statute involved we are unable to see how appellant can be held liable for his death.

The judgment will be reversed without remanding and with a finding of facts which the clerk is directed to embrace in the judgment herein.

Reversed with finding of facts.

Finding of facts. The court finds as matters of fact: First, that the negligence charged in the declaration was not the violation by appellant of any statute enacted for the safety of employees. Second, that appellant was not guilty of any negligence that contributed to the death of deceased. Third, that the cause of the death of deceased was a risk and hazard which he assumed.