text:
    Dora Norlin et al. v. Gustav Becker.
    Gen. No. 18,598.
    1. Negotiable instruments—what establishes prima facie case in action upon. A prima facie case for a plaintiff claiming the amount of a promissory note against its signers is made by the production of the note endorsed in blank.
    2. Negotiable instruments—burden of. proof to shoto notice to assignee of defenses. If the defense is made that the note is, by the terms of a collateral agreement, only payable out of a contingent particular fund, which has not come into existence, the burden of proof is upon the defendant to show that notice of the agreement reached the plaintiff before he paid in full for the note the sum for which he bought it.
    3. Negotiable instruments—when assignee not chargeable with defenses. It is not the law that plaintiff, in order to recover, must have had no notice of any facts or circumstances which would put an ordinarily prudent man on inquiry. Not even suspicious circumstances of negligence on his part would be sufficient to impute notice to him unless they were of such a character as to indicate bad faith on his part.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. George A. Dbpuy, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed January 27, 1908.
    G. Bernhard Anderson and A. S. Robertson, for appellants.
    Atwood, Pease & Loucks, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

The appellee, Gustav Becker, on November 19, 1906, recovered judgment in the Superior Court of Cook county against the appellants, Dora Norlin and Fred Norlin, for $521.68 on a promissory note produced by him as holder, and which he swore he bought for value before maturity from the payee—one H. J. Samson. The note was signed by the appellants, and promised to pay to the order of said Samson $500 three months after the date thereof (September 16, 1905), at the office of A. S. Robertson in Chicago. It was indorsed in blank by Samson.

The judgment was rendered on the verdict of a jury and after a motion for a new trial had been overruled by the court. The appellants appealed from the judgment to this court, and argued here, under assignments of error proper in form: (A) That the verdict and judgment are clearly against the weight of the evidence; (B) that erroneous instructions were given on behalf of the appellee; and (C) that the court wrongfully modified one of appellants’ instructions.

The matter on which the appellants base their defense against the prima facie case which was made by the production in evidence by the plaintiff of the note sued on is this: Contemporaneously with the execution and delivery of the note in question by the Norlins to Samson, the following agreement was drawn and delivered by Samson to Norlin:

“Chicago, September 18, 1905.
This agreement made this 18th day of September, 1905, between Fred Norlin and H. J. Samson, witnesseth: that whereas the said Fred Norlin and Dora Norlin, his wife, have this day given to the said H. J. Samson their promissory note for the sum of Five Hundred Dollars due December 16,1905, and whereas, the consideration for which said note is given is services rendered by said Samson as attorney for August Schmalgemeier in his lifetime and in the matter of his estate, and it is understood that payment of said.note is to be made only out of the proceeds of said estate or out of the proceeds of the estate of Charlotte 'Schmalgemeier, now therefore it is hereby'agreed by and between the parties hereto, that if no funds of said estate are available when said note becomes due, the time of payment thereof shall be extended until such funds are available for the payment of said note.
H. J. Samson, Fred Norlin.”

This agreement was set up in a special plea filed by the defendants with the averments that there were as yet no funds of the estate of August Schmalgemeier or of Charlotte Schmalgemeier available for the purpose of paying said note; that in consequence said note was not due and payable, and that Gustav Becker, the plaintiff, when he acquired the said note, did so with the knowledge of the existence and terms of the agreement hereinabove set forth, and took said note subject to the terms and conditions of said agreement.

Other pleas set up the same agreement and an agreement that Samson would not transfer the note and would not ask for payment until he had used diligent means to secure the payment of the fees for which the note was given from the estate of the Schmalgemeiers, and alleged that said Samson had made no effort to get the fees from said estate and, in differing forms of words, that the plaintiff, Becker, was not a bona fide or innocent holder for value before maturity of the note in question.

On the trial the note was produced in evidence by the plaintiff, and after the interest as computed, was sworn to, the plaintiff rested.

The agreement between Samson and Norlin was then introduced in evidence by the defendant, and Mr. Robertson, a lawyer, at whose office the note was made payable, testified that in November, 1905, in a conversation between himself and Mr. Becker in the presence of Samson, he showed Mr. Becker the agreement. He testified also that at that time this conversation occurred between himself, Becker and Samson:

“I said, ‘Mr. Becker, have you bought that note?’ He said, ‘I paid some money on it.’ I said, ‘How much?’ He replied, ‘Fifty Dollars.’ I said to him, ‘If you have bought that note and paid any money on it, you had no business to do it. The note was not Mr. Samson’s to sell and he had no right to sell it. Now if you have paid any money, don’t pay any more; if you do, you will do it at your own risk. ’ Mr. 'Samson interrupted and said, ‘Mr. Becker has bought that note and he has paid all of it, he has paid for the note. ’ I think that is the language he used. Mr. Becker, upon asking further questions, refused to say anything more’ about it.” Mr. Bobertson also testified that he knew the condition of the Sehmalgemeier estates, and that there were no funds of the estates available to pay the note. He admitted, however, on cross-examination that Mr. and Mrs. Norlin, the appellants, had received from said estates a certain note and trust deed for $3,500, which the testimony tended to show were valuable, but not salable on account of pending litigation concerning the title to the property covered by the trust deed.

Fred Norlin, the only other witness for the defendants (except one who was called to impeach by general reputation the veracity of Samson), swore that Mr. Samson introduced Mr. Becker to him in the fall of 1905, as a man who had bought his note, and that afterward a conversation occurred between Becker and himself in which he said to Becker: “You don’t look foolish enough to pay $500 without knowing what you are going to get. I know that you have not, and that you have been to my lawyer, and he told you about this agreement and showed it to you,” whereupon' Mr. Becker said: “Well, I had already paid some money down that time,” to which Norlin replied: “You should not pay any more. ’ ’

Mr. Becker, being called in Ms own behalf, denied ever having said or implied that he had only paid a portion of the consideration given by him for the note before hearing of the agreement, and testified in effect that he bought and paid in full for the note without notice of the agreement or of any infirmity in Samson’s title to it. Samson corroborated him in these statements.

There was submitted to the jury for their special finding the question:

“At the time this suit was brought were there funds from the estates of the Schmalgemeiers, or either of them, available to the defendants?” With their general verdict in favor of the plaintiff they returned as their answer to this question the special finding, No.

The plaintiff asked the court for a peremptory instruction in his favor, which was denied, and in this and in instructing the jury the court proceeded on the defendants’ theory of the law in relation to notice to the plaintiff of a defense to the note before the payment for it by him was completed, giving to the jury at the request of the defendants the following instruction:

“The court instructs the jury that if they believe from the evidence that the collateral agreement in evidence was made at the time of the signing of the note in question, and that the plaintiff had notice of said agreement before he completed the purchase and payment for said note, then as to the amount of money unpaid at the time plaintiff received said notice, he is in the position of H. J. Samson, the original payee in said note, and cannot recover as to such money unless they also believe from the evidence that said Samson could recover if he were now the plaintiff in this case.”

In so ruling we have no doubt the court was right. Dresser v. Missouri etc. Construction Co., 93 U. S. 92.

The court also ruled in effect by its instructions that the agreement introduced in evidence made the note payable ont of a special fund, so far as Samson and the defendants were concerned, and as a corroí!ary that if the jury should find (as by their answer to the special interrogatory they did find) that the defendants had no such fund in their hands, Samson could not have recovered from them in this suit.

These rulings in favor of the defendants were correct, and went as far as they could properly ask. It was then for the jury to decide whether the' defendants did have such a fund in their hands, and whether, if they did not, the plaintiff, Becker, had received notice of the agreement before paying in full the consideration for which he asserted he bought the note.

We see no objections to the instructions under which. these questions were left to them. As to the first, their finding was of at least doubtful correctness under the evidence, but it was in favor of defendants’ contention, and cannot be complained of by them.

The answer to the second question was in the negative, and therefore disposed of the case adversely to the defendants. The burden of proof was undoubtedly on the defendants to show that notice of the agreement reached the plaintiff before he paid in full for the note the sum for which he bought it.

In default of the defendants sustaining that burden, the plaintiff was entitled to recover its full amount. Production of the note carries with it a prima facie presumption that the plaintiff was a bona fide holder for value before maturity. Counsel argue, in commenting on the instructions, that to entitle the plaintiff to recover, the jury must find that he had no notice of any facts or circumstances which would put an ordinarily prudent man on inquiry. This is not the law. Not even suspicious circumstances of negligence on his part would be sufficient to impute notice to him unless they were of such a character as to indicate bad faith on his part. Comstock v. Hannah, 76 Ill. 530; Shreeves v. Allen, 79 Ill. 553; Merritt v. Boyden, 191 Ill. 136; Gray v. Goode, 72 Ill. App. 504.

There was nothing unreasonable under the evidence in the verdict in this cause, and the judgment based thereon is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown

license: Public Domain

text:
    Louis Livingston v. Charles Blind, Administrator.
    Gen. No. 13,598.
    1. Negligence—what tends to show, in driving wagon. Held, that the evidence in this case tended to show that the driver of a wagon was guilty of negligence, and that such negligence was the proximate cause of the injury complained of.
    2. Negligence—lohen question of imputed, for jury. Held, that it was for the jury to determine whether the parents of the plaintiff’s intestate were guilty of contributory negligence in allowing such intestate, a child of five years, to cross a city street in the dark, accompanied by no person other than another child of the age of about nine years.
    3. Negligence—what evidence with respect to, competent. Held, that evidence which shows the surrounding circumstances is competent upon the question of negligence, notwithstanding the same might have been made the basis of an independent claim of right for recovery.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Axel Ciiytratjs, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed January 27, 1908.
    Statement by the Court. This is an appeal from a judgment of the Superior Court of Cook county for $2,500 in favor of appellee, plaintiff below, against the appellant, defendant below. The judgment was' rendered on the verdict of a jury in an action brought against the defendant for causing the death of the plaintiff’s intestate by negligence. The declaration was in two counts. The first alleged that on December 3,1903, the defendant owned and operated, by his servants, a wagon and horses; that said servant was driving the wagon on Canal street at or near the intersection of Twenty-fifth place on that date, while the •plaintiff’s intestate, a child five years old, was running across Canal street; that the defendant, by his servant, negligently operated said team in failing to control said horses with a tight rein, knowing that the child was in front of the team, or about to cross in front of said team, and that said driver carelessly ran into the plaintiff’s intestate, so that he was thrown to the ground, and the wagon ran over him, inflicting injuries from which he died on December 5, 1903.
    The second count says that the defendant failed in his duty to use, by his servant, care in the control and management of the wagon and team, and on the contrary negligently and carelessly operated said team by his said servant, to wit, failed to stop the said horses when he saw the peril of the plaintiff’s intestate, which he could have done had he been in the exercise of proper care and diligence, so that the wagon would not have run over the plaintiff’s intestate.”
    Both counts allege that the accident happened while the plaintiff’s intestate was “in the exercise of such care and caution for his own safety as could be reason? bly expected of a boy of his age and intelligence.”
    The defendant pleaded the general issue.
    At the trial, after the plaintiff’s evidence had been heard, a.motion was made by the defendant for a peremptory instruction, which was denied. Separate motions were also made for an instruction that the plaintiff had failed to make out a case under each of the counts of the declaration, which were also denied. At the conclusion of all the evidence these motions were all renewed and were all again denied. After the verdict a motion for a new trial and a motion in arrest of judgment were made by the defendant and were overruled, whereupon the judgment and this appeal followed.
    In this court the assignments of error and argument of the defendant attack the judgment on the ground that the verdict on which it is based is clearly against the weight of the evidence, in that the proof taken together shows no negligence on the part of the defendant or his servant, and that- it does show negligence on the part of the father of the appellee, who is the plaintiff and beneficiary under the judgment, which, if it was not the sole cause, was at least a materially contributing cause of the accident.
    Complaint is also made of the admission, over defendant’s objections and exceptions, of improper evidence offered on the part of the plaintiff.
    Horton, Brown & Miller, for appellant.
    J. A. Bloomingston, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

All human tribunals are fallible, and it may be that the jury in this case came to a wrong conclusion from the evidence heard by them. But we know of no reason why greater certainty would inhere in a different decision by us if we should make it.

Despite the argument of the appellant to the contrary, it seems as clear to us as it did to the jury, that the evidence shows the death of the five year old boy— who was plaintiff’s son—to have been the result of his being run down, knocked over and injured by the horses and wagon of the defendant, driven by his employe and agent, while he, the boy, with a companion nine and a half years old, was with the permission and indeed by the direction of his father crossing Canal street at its intersection with Twenty-fifth place, shortly after dark on a winter evening.

It is equally clear to us, and doubtless was to the jury, that the conduct of defendant’s servant if negligent or careless, was not wilfully or wantonly so, and that the accident was and is a cause of regret and grief on his part.

What is not clear from the evidence are the questions which, as best they might, under proper instructions from the court, the jury were left to solve.

First. Was there negligence on the part of the driver in managing his horses and heavy wagon?

Second. Was the act of the boy’s parents, or either of them, in allowing or sending him across a city street after dark, contributory negligence? It is practically conceded that the child himself was too young to be guilty of such negligence in his own person.

These questions were submitted to the jury under instructions which fairly stated the law on the defendant’s theory of the facts, and by their verdict they showed that they answered the first question in the affirmative and the second in the negative.

As to the first, there was evidence tending to prove that the wagon was driven at a trot and did not slacken its speed at this intersection until the boy was struck, that the driver did not call out until after that occurrence, and, more important perhaps than anything else, that the driver was looking backward and not forward just before and at the time of the accident. His attention, it is said, was given to boys on the back of the wagon, apparently stealing a ride,” whom he was ordering away. Between this testimony and that which contradicted it, the jury made a choice and have found the driver guilty of negligence. We do not feel justified in saying their finding was clearly and manifestly against the evidence.

As to the contributory negligence of the parents, that also was a question for the jury, unless we can, as we are called on by defendant’s counsel to do, assert that as a matter of law, permitting this very young child to go across a city street after dark, accompanied only by a companion between nine and ten years old, was negligence materially contributing to the injury. We might have more doubt about this were it a question of first impression with us. But apart from the general proposition that has been decided by the Supreme Court, that the question of contributory negligence of the parents of infants who are injured is for the jury (Chicago & Alton R. R. Co. v. Logue, 158 Ill. 621; True v. Woda, 201 Ill. 315), the Supreme Court has said that the fact that a child of very tender years had with him one not much older than the deceased’s companion in this case, relieves the parents from the imputation of negligence contributing to his being run down and killed on a railroad crossing. Chicago & Alton R. R. Co. v. Becker, 84 Ill. 483. We therefore must decline to interfere with the finding of the jury on this question also.

Complaint is made that evidence was improperly admitted that the wagon had no lights on it. This was not error. The pleadings did not allege that there were no lights on the wagon, it is true, hut, on the other hand, the absence of lights was not relied on as entitling the plaintiff to recover. The instructions were such as plainly to preclude the idea that the jury could find for the plaintiff on that ground. No ordinance requiring lights was offered or alluded to. The presence or absence of lights on the wagon was one of the surrounding circumstances and conditions which could not he more properly kept from the jury than could the size and shape of the wagon or the nature of the locality.

The judgment of the Superior Court is affirmed.

Affirmed.


text:
    Everett House et al. v. Louis Schnadig.
    Gen. No. 13,600.
    1. Bankruptcy—appropriate judgment upon sustaining plea of discharge. A plea of discharge in bankruptcy is a plea in bar, and generally, if sustained by the proof, entitles the defendant to a judgment nil capiat.

    2. Bankruptcy—Hill v. Harding, 116 III. 93, distinguished from the present case. It is only in exceptional cases that a judgment against the defendant, after a discharge in bankruptcy, should be entered with a perpetual stay of execution. The present case, which was a trial de novo before the Circuit Court, on. an appeal from a justice of the peace rendered less than four months before the defendant filed his petition in bankruptcy, is not such a case.
    3. Suretyship—when surety upon bond released by principal’s discharge in bankruptcy. Semble: That a surety upon a bond given upon an appeal from the judgment of a justice of the peace is not liable on the bond where the petition in bankruptcy has been filed within four months after the judgment by the justice and the trial de novo resulted in a judgment for the defendant on the ground of a discharge on said petition. The question, however, is not involved in this appeal.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. Geobge A. Carpenter, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed January 27, 1908.
    Statement by the Court. Everett House and William E. House, the appellants herein, on May 5, 1906, began a suit against Louis Schnadig, the appellee herein, before a justice of the peace in Chicago, for a demand not exceeding $200. The summons in said suit was served .on the said Schnadig on May 8, 1906. It was called for trial before the justice on May 11, 1906, and continued from time to time until May 21, 1906. On that day judgment was rendered against the defendant Schnadig for $81.50 and costs.
    May 28, 1906, an execution was issued by the justice and delivered to a constable, but on May 31st an appeal to the Circuit Court was taken by Schnadig, who filed with the justice an appeal bond with one Emma Leroux as surety thereon in the sum of $175, with this condition: ‘‘ Said Louis Schnadig shall prosecute his appeal with effect and pay whatever judgment may be rendered against him by the Circuit Court upon the trial of said appeal, or by consent, or in case the appeal is dismissed or in case the matter in controversy is settled between the parties to the suit without a trial by the court appealed to, will pay the judgment rendered against him by said justice and all costs occasioned by said appeal, then the above obligation to be void, otherwise to remain in full force and effect. ’ ’
    On the eighth day of June, 1906, Schnadig filed a voluntary petition in bankruptcy in the District Court of the United States for the Northern District of Illinois, Eastern Division. On October 5, 1906, he obtained an injunction or restraining order in the District Court jfobidding the plaintiffs from proceeding in any manner with the cause pending in the Circuit Court of Cook county. December 3, 1906, the defendant obtained a discharge in the bankruptcy proceedings before mentioned, discharging him from all his debts in accordance with the laws of the United States pertaining to bankruptcy, among which debts so discharged was that of the plaintiffs herein.
    December 24, 1906, the plaintiffs on petition filed by them in the said District Court of the United States obtained an order from said court modifying the restraining order of October 5, 1906, so as to allow the plaintiffs herein to proceed to judgment, but perpetually restraining the said plaintiffs from taking out execution against the defendant on said judgment “so that the plaintiffs herein might assert their rights against the surety on the appeal bond.”
    The plaintiffs then proceeded and proved their claim before the Circuit Court. The defendant offered in evidence a certified copy of his discharge in bankruptcy. The plaintiffs thereupon moved for a judgment against the defendant for the sum of $81.50 and costs, with a perpetual stay of execution. The defendant made a counter motion for a judgment against the plaintiffs. The court denied the motion of the plaintiffs and allowed that of the defendant, entering a judgment of nil capiat and for costs against the plaintiffs.
    The bill of exceptions recites that ‘ ‘ The court found that at the time the suit was started there was due to the plaintiffs from the defendant the sum of $81.50, but that the same has been discharged by bankruptcy.” A motion for a new trial was made by the plaintiffs and overruled by the court. The plaintiffs then appealed to this court, raising here by their assignments of error and argument the single question: Ought the court below to have complied with their request for a judgment in their favor, coupled with a perpetual stay of execution?
    Musgrave, Vroman & Lee, for appellants.
    Benjamin Samuels, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

If the question raised in this appeal as before stated, is to be answered on logical grounds, without reference to ulterior results or to the authority of cited cases, it would seem that there- cannot be much difficulty in its solution.

The National Bankruptcy Act in its first section expressly provides that the word “discharge” as used in the act “shall mean the release of a bankrupt from all of his debts which are provable in bankruptcy, except such as are excepted by this Act.” Section 17 of the act provides that “A discharge in bankruptcy shall release a bankrupt from all his provable debts,” with certain exceptions not relevant in this case. A discharge in bankruptcy must be pleaded, but where it is pleaded it is in bar, and a good plea in bar sustained by proof naturally entitles the defendant to -a judgment of nil capiat. It is true that “a debt discharged is not a debt paid,” and consistently with that idea it is the law that a moral consideration remains after the “discharge” or “release” that will support a new promise to pay. It has therefore sometimes been loosely said that “the discharge goes only to the remedy. ’ ’

But while it requires no precedent or argument to show that a discharged bankrupt ought in conscience to see to it that if he afterwards becomes able, his former creditors should be reimbursed for their losses by his bankruptcy, it cannot be called a precise use of words to say that a debt remains legally in existence from which the debtor is “discharged” and “released.” It would seem more proper to say “It is due in conscience, although discharged in law.” And it is not in the forum of conscience but of law that the question must be decided, whether, in the face of the discharge pleaded and without evidence of a new promise, a judgment at law can be rendered against the defendant. That logically it cannot,, would seem plain, and that this is the law in the absence of peculiar circumstances has certainly been stated in Illinois by this court and by the Supreme Court. Friedman v. Verchofsky, 105 Ill. App. 414; Leseure v. Weaver, 108 Ill. App. 616; Phelps v. Curts, 80 Ill. 109.

Counsel in effect say that the statements to this effect in these cases are obiter dieta, but they express at all events, very plainly, the thought of the judges writing the opinions. Indeed, there can be no serious denial of the proposition without declaring inconsistent with correct procedure the constant practice of the courts of Illinois. When a discharge is pleaded and sustained, the judgment is denied. If it is not sustained in the opinion of the lower court, and the reviewing court holds that it was so sustained, the latter tribunal reverses and wipes out the judgment that has been given. If the Supreme Court of the state is' adjudged by the Supreme Court of the United States mistaken in upholding lower courts in sustaining such a judgment, the judgment is finally reversed and vacated in accordance with the decision of the Federal Supreme Court. The objection of the defendant is not in these cases limited to the issuance of an execution, but to the judgment itself, and if the objection is sustained, his rights are in accordance therewith.

It is plain indeed from their argument that whatever plaintiffs may think of their general right to a judgment without execution against the defendant, they would not have insisted on it except for the ulterior purpose of bringing about a breach of the condition in the bond filed with the justice on the appeal to the Circuit Court, and thus holding the surety on that bond for the amount of the judgment. Why in reason should the court depart from what would otherwise be considered its plain duty in order to bring about this result?

The judgment before the justice was obtained within .four months and indeed within three weeks of the filing of the petition in bankruptcy by the defendant.

By the express terms of section 67f of the Bankruptcy Act (which has been held in this district and by the great weight of authority elsewhere to apply to both voluntary and involuntary bankruptcies) the judgment, as well as any execution and levy under it, was rendered null and void by the adjudication in bankruptcy.

The undertaking of Emma Leroux, the surety in the bond which was given on the appeal, was not to pay the debt, or see that the debt was paid; it was to pay whatever judgment should be rendered against the defendant in a trial de novo, or, if there were no such trial, to pay the judgment of the justice. A surety’s liability is not to be enlarged by construction; it is strictly limited to the express undertaking. There was a trial de novo; the defendant had come into a new defense since the plaintiffs’ judgment before the justice, and he presented that defense to the Circuit Court. Why should the Circuit Court depart from that which it must be conceded would be, except for the liability of this bondsman, its natural, proper and usual method of procedure, in order to fasten a liability on the bondsman?

Counsel for plaintiffs suggest, and counsel for defendant repudiate, the theory that the debtor took the appeal and the bondsman executed the bond for the purpose of tying up the creditor until a petition in bankruptcy could be filed. Assume, however, that this is true—where is the moral obliquity? The judgment would have been rendered void, and the execution and levy with it, by the bankruptcy proceedings. "Why should not the expense and annoyance of the execution and the levy be prevented, for the nonce, while the bankruptcy petition was being prepared?

For the reasons which we have indicated it seems to us that logically the action of the Circuit Court in refusing to render a judgment against the defendant is justified.

The appellants, however, insist that the Branch Appellate Court of this District and the Supreme Court of this state have spoken on this question and given a different answer, and cite and quote at length from Flack v. Moore, 117 Ill. App. 551, and Hill v. Harding, 116 Ill. 92, and 130 U. S. 699, to establish their contention.

The opinion in Flack v. Moore is, of course, only authority for us in the case in which it was rendered, and the same may be said of a dictum by Judge Windes of this court in Elder v. Prussing, 101 Ill. App. 655, which is quoted in the argument filed for appellants. However, this is not material, for the law as laid down in Hill v. Harding, 116 Ill. 92, is of course absolutely binding on us. If we could not, as we think, clearly distinguish the situation in that case from the one at bar, in a manner which shows the opinion in the former inapplicable to the latter, we should be obliged to reverse the judgment here complained of. We are not at liberty to heed the suggestion of counsel for appellee that the case of Hill v. Harding has not announced the law correctly. It is conclusive evidence of the law to us.

But if Hill v. Harding can be properly distinguished from the case at bar, it cannot be held applicable, and in that case the citations from the Appellate Court, even if they were binding on us, would fail of relevancy herein, for the same distinction can be found in them as in Hill v. Harding. In that case an attachment had been made of the defendant’s goods more than four months before the bankruptcy petition had been filed by him. The lien in favor of the attaching creditor would therefore have been valid as against the other creditors and the assignee in bankruptcy of the deféndant. A bond to release the attachment under the statute had been given. By this the security of the bond had been substituted for what would have been the valid lien of the attachment. By pleading the discharge in bankruptcy, the defendant sought to destroy the substituted security which had already superseded, by force'of the statute, the valid lien which was good against the bankruptcy proceedings. This the Supreme Court of Illinois refused him permission to do, directing the court below to enter a judgment against the bankrupt with a stay of execution, with the evident purpose "of protecting what were plain equities of the attaching creditor both under the state and the federal law. Hill v. Harding, 116 Ill. 92; 107 U. S. 631. The Supreme Court of the United States said, not that there was anything in the Bankrupt Law which compelled such a course, but that there was nothing in the law which forbade it, and therefore no right on its part to interfere with the judgment rendered by the Illinois Court, although in other jurisdictions the question had been decided differently. Hill v. Harding, 107 U. S. 631; 130 U. S. 699.

We do not think that this case justifies the claim of the appellants here; and if it is not applicable, neither are the cases cited from the Appellate Court.

The cases from other jurisdictions which are cited by the appellants as favoring their contention can be still more easily distinguished, we think, while there are many such, as is conceded by appellants’ counsel, which hold to the contrary view. Such also is the doctrine of a dictum of Chief Justice Waite in Wolf v. Stix, 99 U. S. 1.

Section 16a of the Bankrupt Act—that the liability of a surety for a bankrupt shall not be altered by the discharge of such bankrupt—does not seem to us to have any application here, because, so far as the liability of the surety isun question here, the dispute is upon what that liability was. It was not altered by the action of the court in rendering judgment against the plaintiffs. The contention of the appellee is, in the language of Chief Justice Waite in Wolf v. Stix (supra), “the act has not happened on which the liability of the surety was made to depend.”

The statement is made by the appellants’ counsel in their argument, that “When the defendant obtains a discharge in bankruptcy after filing an appeal bond, such as the one in this case, and pleads his discharge in bar of further proceedings in the State Court, he has not ‘prosecuted his appeal with effect. ’ ” It is not necessary for us to pass on the soundness of this position. It is manifest, however, that if it be sound, the liability of the sureties does not depend on the action of the court in this suit.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Edwin S. Hartwell Lumber Company v. John Bork, Jr.
    Gen. No. 13,605.
    ■ ’ErnxmscE.-^competency of offers of compromise. It is error to permit evidence which tends to show that one of the parties to the cause sought or may have sought to settle the litigation in question, and error in this respect is aggravated by the fact that argument is made to the jury predicated upon such supposed efforts at compromise.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Robert W. Weight, Judge, presiding.
    Heard in this court at the March term, 1907.
    Reversed and remanded.
    Opinion filed January 27, 1908.

      Lackner, Butz & Miller and W. G. Shockey, for appellant.
    Brandt & Hoffmann, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

It is with reluctance that we disturb the judgment in this cause, based as it is on the verdict of a jury on conflicting testimony. After a careful consideration and analysis of that testimony we are of the opinion that the jury" were the proper judges of the questions involved in it, and that we are not called on to set aside the verdict that was rendered on the ground urged by the appellant’s counsel, that it was clearly and manifestly against the weight of the evidence.

Consideration of the three offered instructions, the refusal of which is complained of in the argument, has convinced us that the first two (numbered sixth and seventh) were objectionable, and the third (numbered tenth), if not objectionable was fully covered by at least one other instruction, which was given.

It is an error of the trial judge in his rulings on the admission of evidence, connected with the argument and comments of counsel to the jury thereafter on the testimony admitted under that ruling, that places on us the obligation, as we think, to send back this close case, already twice tried, for another examination, from which this improper and, as we deem it, dangerous factor shall be eliminated. Other alleged errors in rulings on evidence are complained of by appellant, but we find nothing reversible or indeed objectionable in any rulings except in that to be hereinafter stated. Nor should we perhaps regard even that error (although we hold it to be apparent) sufficient by itself to reverse the judgment, were it not that it was accentuated and emphasized and its danger and possible effect in warping the judgment of the jury increased, by the argument founded on it which counsel in Ms zeal permitted himself improperly, as we think, to urge upon them.

The nature of these coupled errors in the conduct of the trial is such that it is not necessary for us, in this opinion, to state even the pleadings and the facts involved in the litigation. It is, moreover, our policy when sending back a cause like this for a new trial, to treat of the facts as lightly as possible.

It is sufficient to say that the cause was a suit for a personal injury suffered by the appellee, the plaintiff below, while he was in the employ of the appellant, the defendant below. A sharply and closely contested question, wMch was relevant and material in the controversy, was whether a certain order was given to the plaintiff by another employe of the defendant, who was foreman over the plaintiff. This foreman’s name was Nemode. He denied giving the order in question. The plaintiff asserted that he did give it. There was conflicting and contradictory testimony from others about it. The case was twice tried, as we have said. At the second trial, on cross-examination of Nemode, he was asked tMs question by plaintiff’s counsel:

“Q. Did you while the trial” (referring to the first trial of the cause two years or more before) “was in progress, call on Mr. Bork, this plaintiff here, at his house Saturday morning pending that trial, and try to talk the case over with him and* try and get Mm to settle the case with the company?”

An objection was interposed by the counsel for defendant, but overruled by the court.

The answer was, “Yes, sir, I did.”

The examination then proceeded thus:

“Q. Who sent you there?
Defendant’s Counsel: Same objection.
Objection overruled and exception.
A. No one sent me there.
Q. What did you go there for?
A. I went there out of sympathy for the boy.
Q. Out of sympathy for the hoy? A. Yes sir, I did.
Q. You sympathized with him so much that you went there and tried to get him to settle the case for a small sum with the Hartwell Company, did you?
Objection by defendant’s counsel; objection sustained.
Q. Weren’t you sent there by the Hartwell Lumber Company?
Objection by defendant’s counsel.
The Court: Objection sustained. He said he wasn’t sent there at all.
Plaintiff’s Counsel: Q. Did any one ask you to go there ? A. No, sir.
Defendant’s Counsel: I object to that.
The Court: Objection sustained. He says he wasn’t sent there.
The Witness: I said, no sir.
* * *
Q. Now, Mr. Nemode you have taken a great interest in this case, haven’t you, from the beginning?
A. Why—
Q. Answer yes or no. A. Yes.”

Counsel for plaintiff say in their argument in this court, as to this testimony: ‘ Any interest which a witness may have taken in a case such as hunting up witnesses for a party or in any way interesting himself on behalf of a party, is competent to be shown as bearing on his bias and feeling in the case. It is very important testimony bearing on the credibility of the witness. It is perfectly elementary that it was competent to ask Nemode the question complained of, or any other question showing that he had interested himself in the case. No sum was suggested as having been offered or mentioned by Nemode. It was confined to the fact that he had interested himself in that way in the case, and the evidence was on elementary principles clearly competent.”

It is quite obvious that this is not a complete statement of the purport or effect of the testimony admitted over objection.

It was not “hunting up witnesses” by Nemode which counsel thus got before the jury. It was a proposition of settlement made or suggested by a person who was accused of being, by his original interference, responsible for the defendant’s alleged liability. It was a proposition or suggestion not accepted but made by an employe of the defendant. It was implied in the subsequent questions that were ruled out, that the plaintiff’s counsel imputed the suggestion to the defendant itself. So viewed, it would serve in argument as an admission of liability on the part of the defendant and of a consciousness of responsibility for that liability on the part of the witness.

But for neither of these purposes should a suggestion of settlement not accepted, made by either witness or defendant, have been used.

Public policy is against allowing proofs of attempts to settle law suits out of court, because it discourages such attempts by raising the danger of their being used as admissions of liability.

Lord Mansfield is quoted in Bice on Evidence, sec. 243, as saying: “It must be permitted to all men to buy their peace without prejudice to them should the offer not succeed, such offers being made to stop litigation without regard to whether anything is due or not. That no advantage shall be taken of offers made by way of compromise, and that a party may with impunity attempt to buy his peace, are well established rules of law.” The quotation is not identified by citation. It, however, undoubtedly expresses the law, and Mr. Justice Dibell of the Appellate Court of the Second District, in Gehm v. The People, 87 Ill. App. 158, quotes it with this judicious remark: “A mere unaccepted offer to pay a sum in compromise of a suit or claim is not admissible in evidence against a party on grounds of public policy. An innocent person has a right to buy his peace and thus avoid suit. If such offer could afterwards be given in evidence against the party making it and used as a tacit admission of liability, no attempt to compromise a suit would ever be made.”

Judge Pleasants said in Rollins v. Duffy, 18 Ill. App. 398, of testimony of an offered settlement, which, in that case, however, was introduced by the person making it. “The door ought always to be closed so far as possible against such evidence.”

■ For all this, inasmuch as the witness in this case disclaimed having made overtures of settlement except on his own initiative, and, as counsel suggest, did not mention any sum as considered or spoken of, we might, as we have before indicated, have been able to overlook the error of admitting this evidence had the counsel for the plaintiff been content with it as given, and not insisted upon it or tried to use it otherwise than as showing that the witness felt an interest in the law suit.

But any possible doubt as to the intent with which the questions were asked, and the effect desired by the answers, was removed by the argument addressed by counsel, to the jury founded on them.

Counsel for plaintiff said to the jury: “We have Nemode sneaking over to Bo'rk’s house while the other trial was in progress, trying to get him to settlé that case without the intervention of his lawyers, and he says nobody sent him. He went of his own accord. Do you believe it? Who sent him? Of course, somebody sent him. Who sent him?

Counsel for Defendant: I object to that last statement.
Counsel for Plaintiff: I say that it is a perfectly fair statement. Mr. Nemode having no interest in this case, couldn’t go there unless somebody sent him.
Counsel for Defendant: The testimony is that he • wasn’t sent there.
Counsel for Plaintiff: He said so. He lied when he said it.
Counsel for Defendant: I object to that remark.
The Court: The objection is sustained to that remark.
Counsel for Plaintiff: I think Mr. Nemode never went there of his own accord.
Counsel for Defendant: I object to that as absolutely opposed to all the evidence.
The Court: He has a right to argue any reasonable inference to be drawn from the evidence. Whether that is reasonable or not is for the jury. ’ ’

To this ruling of the court counsel for defendant excepted.

In our opinion the inference suggested was not for the jury. The inference sought to be drawn was that defendant had sent the witness to suggest settlement. The only possible relevancy of this inference would be that it might lead to the farther one that the defendant admitted his liability. But this is precisely what such overtures for settlement are held not to do. They are excluded from proof because they would have a tendency in fact to lead the jury to believe them to indicate what in law they are not held to be evidence of.

Counsel for plaintiff then went on: “I have the right to say to you that a man who had no interest in this case never went up there to Bork’s place without somebody sending him and egging him into it.” And again—“This boy has been persecuted by this concern straight down from the time of the last trial, and you see the evidence of it.”

Counsel for defendant objected to this statement, and on the objection being overruled, excepted.

Again counsel for plaintiff said: “Then when the trial was on, in here comes this Nemode, working for the defendant in their employ as he testified, and he takes a whack at him. They did not succeed.”

We cannot tell what effect this testimony and this line of argument on that testimony, had upon the minds of the jury when they came to consider in this close case the sharply conflicting evidence which bore on the alleged liability of the defendant and the alleged responsibility of the plaintiff therefor.

For the errors indicated therefore, in admitting this testimony and in allowing the comments that were made thereon, we reverse the judgment and remand the cause for another trial.

Reversed and remanded.


author: Mr. Presiding Justice Baker

text:
    Chicago Crayon Company v. J. Warren Pease.
    Gen. No. 13,637.
    1. Garnishment&emdash;what cannot be reached by. Stock in a corporation, where the certificate has issued, cannot he reached hy garnishment.
    2. Corporations&emdash;what cannot affect stock purchase. The purchase of corporate stock in good faith consummated through an agent of the supposed and record owner is not affected by the fact that such agent upon learning of an adverse claim of ownership retained the proceeds of the check given in payment for such stock.
    Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Affirmed.
    Opinion filed January 28, 1908.
    Statement by the Court. The bill in this ease alleged that June 11, 1903, one Hamell was the owner of fifteen shares of the capital stock of the defendant corporation, and that on said day the defendant issued to him a certificate therefor; that November 8, 1904, Hamell assigned the same in blank and sold and delivered said shares and certificate to complainant; that defendant refused -to permit the transfer of said certificate to be registered or to issue to complainant a new certificate, and prayed that the defendant be decreed to permit the registry of such transfer and to issue to him a new certificate. The answer of the defendant admits that Hamell was the owner of said fifteen shares June 11, 1903, and alleges that March 1, 1904, four of said shares were levied on, “under and by virtue of a writ of attachment and execution order of sale,” issued by a justice of the peace in a suit pending before him, wherein A. D. Gash was plaintiff and said Hamell defendant; that the said four shares were sold at constable’s sale to Gash, to whom defendant issued a certificate; that May 1, 1904, the sheriff of Cook county, “by virtue of a writ of attachment, levied upon the other eleven shares of said capital stock,” which writ of attachment was issued out of the County Court in a suit in which the defendant company, for the use of one Lyon, was plaintiff and Hamell was defendant; that July 1, 1904, said sheriff, “under and by virtue of an execution and order of sale issued in said cause, levied upon arid sold said eleven shares,” to one Witherell, and the defendant issued to Witherell a new certificate for said shares. To the answer complainant filed a replication.
    The return of the constable on the attachment writ issued by the justice was that he ‘ summoned the Chicago Crayon Co. as Garnishee herein, by leaving a copy of the writ with Lee Skinner, Secretary of said Company, and tendered him $1.10 and mileage.”
    The justice’s transcript shows a judgment in favor of the plaintiff against the defendant for $100 and costs, “in rem,” and further states that “garnishee answers that it has four shares of stock on hand, the property of and belonging to defendant, and court renders judgment vs. garnishee on answer and court orders shares of stock in hands of Garnishee sold to satisfy above judgment in rem vs. defendant.” Upon an execution issued on this judgment, said four shares of stock were sold at constable’s sale.
    . The return of the sheriff on the writ of attachment issued out of the County Court is as follows: “The within named defendant not found and no property of within named defendant found in my county on which to levy this writ, served this writ on the within named Chicago Crayon Company, a corporation, as garnishee, by delivering a copy thereof to Lee Skinner, Secretary. ’ ’

      The plaintiff filed in said cause in the County Court to said Crayon Company, as garnishee, three interrogatories. The first, whether said garnishee had any goods, chattels, moneys, choses in action, credits, or effects of said Hamell in its possession; the second, whether said company was indebted to Hamell; the third, whether said Hamell had any stock in said corporation. To the first interrogatory the garnishee answered that defendant had eleven shares of the capital stock of said corporation; to the second, that it was not indebted to Hamell; to the third it made the same answer as to the first. No issue was taken on the answer of the garnishee.
    The court entered judgment in favor of the plaintiff against the defendant for $745, damages and costs, and also judgment against the garnishee as follows: “that the defendant for use of the plaintiff have and recover of and from the garnishee, Chicago Crayon Company, a corporation, the said sum of seven hundred and forty-five dollars, to be satisfied out of the sale of said eleven shares of the capital stock of garnishee owned by said A. L. Hamell.” The judgment order further directs the garnishee to make and deliver to the sheriff a certificate for said eleven shares of stock, “to the end that said sheriff may levy the special execution to be issued herein on said stock, that the same may be sold to satisfy said damages,” and further orders that plaintiff have execution against said eleven shares of stock. Upon an execution issued on this judgment said eleven shares of stock were sold at sheriff’s sale to With'erell.
    The decree orders that defendant issue a new certificate for said fifteen shares of stock to complainant, and the defendant appealed.
    A. D. Gash, for appellant.
    William E. Cloyes, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

The answer sets up as a defense to the bill that four of Hamell’s shares of the capital stock,of defendant were levied on by a constable under a writ of attachment and afterwards sold, and that the remaining eleven shares were levied on by the sheriff, under a writ of attachment, and sold. These allegations are not sustained by the proofs. There was no attempt in either case to levy on or seize any shares of stock under the writ of attachment.

The respective returns of the constable and the sheriff on the writ of attachment issued to each show that no attachment of the shares of Hamell was made or intended under either writ, for. each return states only that the Crayon Company was summoned as garnishee. In each case appellant here answered as garnishee; the subsequent proceedings in each case are based on the answer of the garnishee and are, in the main, such proceedings as may be had under section 20 of the Garnishment Act, and not such as are proper where property is seized on an attachment writ.

The proceeding in each case must be regarded as a garnishment proceeding, and the question presented is, whether the interest of a stockholder in an Illinois corporation, where a certificate for his stock has been issued and delivered to the stockholder, can be reached by that proceeding. By that proceeding a creditor may reach debts owing to his debtor from the garnishee, or lands, tenements, goods, chattels, moneys, choses in action, credits, effects or estate of the debtor in the possession, custody or charge of the garnishee. "We think that stock cannot, where the certificate has been issued, be reached by garnishment proceedings, and this view is supported by the great weight of authority.

“The process of garnishment is proper only where a debt is due from a third person to the defendant debtor. It is not a proper remedy for reaching shares of stock owned by the debtor. The corporation owes the stockholder no debt, and by no fiction of law can it be held to be a debtor of the defendant debtor. Consequently, where the sheriff levies an attachment, not according to procedure governing attachments, but ac-' cording to the procedure of garnishment, the whole proceeding is void, and a subsequent transfer of the stock by the defendant debtor is valid.” Cook on Corporations, 5th ed., 491. See, also, 14 Amer. & En. Encyc. of Law, 2nd ed., 796; Clark & Marshall on Corp’ns., 1149; 2 Wade on Attachment, sec. 408; Planters & Mer. Bank v. Leavens, 4 Ala. 753; Foster v. Potter, 37 Mo. 526; Ross v. Ross, 25 Ga. 297; Mooar v. Walker, 46 Iowa 164; Netter v. Board of Trade, 12 Ill. App. 607.

In Ill. Anglo-Amer. Storage Battery Co. v. Long, 41 Ill. App. 333, where no certificate for the stock had been issued, it was held that shares of stock might be reached by garnishment against the corporation. But in such case the stockholder has a right of action against the corporation, either in equity for specific performance, or in assumpsit to recover the value of the shares at the time their issue is demanded and refused. 1 Cook on Stockholders, sec. 74; Birmingham Bank v. Roden, 97 Ala. 404.

The proofs show that appellee purchased said shares from Scanlan, the agent of Hamell, at the price of $1,200, and paid for the same by his check to the order of Scanlan for said sum, dated November 28, 1904; that the same was paid through the clearing house November 30, 1904; that appellee purchased and paid for said shares in good faith, without any notice of any adverse claim to the same; that it was not until he had so paid for said shares that he learned from appellant of the claim that Hamell’s shares had been sold; that he then notified Scanlan of said claim and asked Scanlan to protect him. The sale was completed when the check was delivered, and the fact that Scanlan, on learning of the claim that Hamell was not the owner of. the shares when they were sold to appellee, retained the proceeds of the check, cannot affect appellee’s right as against appellant.

Finding no error in the record, the decree will be "affirmed.

'Affirmed.


text:
    Marshall E. Sampsell, Receiver, v. Edwin F. Wilkie.
    Gen. No. 13,645.
    Contbibutoey negligence—-what 'constitutes, as matter of law. It is contributory negligence, as a matter of law, for a teamster to drive upon a street car track between street intersections, knowing that a car is coming towards him on such track, and that a collision will occur unless the car is stopped.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Reversed with finding of facts.
    Opinion filed January 28, 1908.
    John A. Rose and Albert M. Cross, for appellant; W. W. Gurley, of counsel.
    James L. Bynum and Charles C. Spencer, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

This is an appeal by the defendant from a judgment for $1,000, recovered by the-plaintiff in an action on the case for personal injuries.

Appellant, as receiver, operated a double track electric street railway in Grand avenue, an east and west street, from which Ada street runs north but not south.

Plaintiff was the driver of a two-wheeled covered ma.il cart, and was driving west in Grand avenue with the wheels of his cart astride the north rail of the west-bound track. He turned out to the south to pass a loaded wagon or truck which had stopped in front of his cart, and his cart was struck by a car running east on the south track, and in such collision he sustained the injuries for which the recovery was had.

Plaintiff testified upon the trial that there was a pile of lumber in Grand avenue a short distance east of Ada street, extending from the north curb nearly to the north rail of the north track; that the south wheel of his cart was about midway between the rails of the north track, and that the wagon was directly in front of his cart; that the distance between the rails was four feet eight inches, and the clearance between the two tracks the same; that he turned out to the southwest to pass the wagon and the wheel of his cart had just about cleared the wagon when he first saw the car approaching; that he slapped the horse with the lines, but the horse went slowly because there were loose cobblestones between the rails, “he traveled slowly, carefully picking his way across these tracks”; that the cart was almost across the tracks when the car struck it; that the car was 100 to 125 feet away when he first saw it; that he was familiar- with the condition of the street and knew that electric ears ran every five or six minutes, and knew their ordinary rate of speed between street crossings; that he stood upon a platform or step at the rear of his cart which was about a foot above the ground; that “the front part of the wagon is glass, but there are doors that swing open, and that day it was open. Q. There was nothing to obstruct your view then? A. Nothing but the truck”; that the distance between the south wheel of the truck and the north rail of the south track was about seven feet; that he first saw the car just as his horse was about to go on the track on which the car was coming. “Q. It was just about to go on the track when you saw the car coming from the west, about a hundred feet from you? A. Tes, sir. Q. You knew then that if the motorman did not slow np that car, the probability was ijiat it would strike your wagon? A. Yes, sir. Q. Your wagon was on two wheels, was it not? A. Yes, sir. Q. That would turn around just like on a pivot? A. It was swung that way. Yes, sir. Q. Had the horse gotten on to the south track when yon' first saw the car, or just getting ready to go on? A. Just ready to go on.. Q. Just ready to go on, yes? A. I misunderstood your question. The wagon was just ready to g'o on, the horse was already on the track. Q. The wheels hadn’t yet gotten on the track? A. No, sir.”

We know of no case in which it has been held not to be contributory negligence for a teamster to drive upon a street car track between street intersections, knowing that a ear is coming towards him on such track and that a collision will occur unless the car is stopped. That such conduct amounts to and constitutes contributory negligence on the part of the teamster was held in Chicago Union Trac. Co. v. Jacobson, 217 Ill. 404, and C. C. Ry. Co. v. Strampel, 110 Ill. App. 482. When the plaintiff drove upon the track, he knew that a car, then a hundred feet or more away, was coming toward Mm, and testified that he knew that if the motorman did not slow np the car, the probability was that it would strike his cart, and yet he made no attempt to turn hack or turn away from the track.

The plaintiff was, according to his own testimony, clearly guilty of contributory negligence, and the judgment will therefore be reversed with a finding of facts.

Reversed.


text:
    Chicago Union Traction Company v. Bridget Fitzgerald, Administratrix.
    Gen. No. 13,656.
    1. Variance—wfiat does not constitute. In an action for personal injuries, an allegation in the declaration that the defendant traction company permitted a hole to remain “within the rails” of the south track, is not an averment that such hole was within or between the flanges, but is an averment that such hole was within or between the rails proper, and proof that a part of the flange of said south rail was broken off at its junction with the web of the rail proper, and was gone, leaving a hole where the flange was when in place, is proof of the averment of the declaration.
    2. Ordinary cabe—duty of traction company to exercise. Under the general principles of law, independent of any ordinance, it is the duty of a traction company to use reasonable care to keep the flanges of its rails reasonably safe for vehicles to pass along and over.
    Action in case for death caused by alleged wrongful act. Appeal from'the Circuit Court of Cook county; the Hon. P. W. Gallagher, Judge, presiding.'
    Heard in the Branch Appellate Court at the March term, 1907.
    Affirmed.
    Opinion filed January 28, 1908.
    John A. Rose and Albert M. Cross, for appellant; W. W. Gurley, of counsel.
    Coburn & Case and Joseph I. Sheridan, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

This is an appeal by the defendant from a judgment for $5,000 recovered by the administratrix of James Fitzgerald in an action for wrongfully causing the death of plaintiff’s intestate. The action was against appellant and the city of Chicago, but upon the trial the jury returned a verdict of not guilty as to the city, upon which judgment was rendered in its favor.

Appellant offered no evidence at the trial, and as to the evidentiary facts there is no controversy. Appellant operated a double track street railway in Madison street, and deceased was driving east in the south track. When about 100 feet east of the Madison street bridge, the south fore wheel of his wagon dropped into a hole, and thereby he was thrown from his wagon, run over by its wheels and killed. The evidence shows that at the place where the accident occurred the flange of the south rail of appellant’s track had been broken off at its junction with the web of the rail; that the part so broken off was gone and had been gone for months before the accident, leaving a hole into which wheels of other wagons had dropped; that alongside of the place where the flange was broken and gone, stone paving blocks were gone, making the hole caused by the absence of the missing portion of said flange and of said paving blocks a foot or more long, six inches deep 'and extending into the space between the rails six or seven inches from the web of the south rail. The first count of the amended declaration avers that the defendants negligently, etc., “suffered and permitted a certain hole to be and remain in the pavement of Madison street within the rails of the south track,” etc., and that the deceased, using due care, etc., drove into said hole and thereby came to his death.

The principal contention of appellant is, that no count of the declaration charged that the «rails or tracks were out of repair, but that each count charged that the deceased was injured by falling into a hole in the street or pavement between the tracks; that evidence that the flange of the rail was broken out and gone presents an entirely different case and theory of negligence from that charged in the declaration.

The rail in use at the place in question was a bar or beam of steel made in one piece, but consisting of the head, the web, the base and the flange. When in place as part of the street railway track, the web extends upward from the base which rests upon cross ties to the head and supports the head and the flange; the head extends outward from the inner face of the web; the flange is an inch or more below the head and extends inward from that face, is three or four inches wide and is five or six inches above the base of the rail. When a wagon runs in car tracks -the wheels run upon the flanges inside the heads of the rails. Some, perhaps most of the witnesses, call the heads of the rail, the rail, and speak of a wagon running between the heads of the rails, upon the flange, as running between the rails. In a proper sense, the base, the web and the head may be considered the rail. The object and purpose of the rail is to support and guide the wheels of the cars and motors. To this object and purpose the- flanges do not contribute. Their object and purpose is to cover the three or four inches of the surface of the street next tó the inside of the rail proper, and afford a support to the wheels of vehicles running on the tracks, that is, between the rails proper. In speaking of the distance between the rails of a street railway track, we mean the distance between the rails proper, not the distance between the inner edges of the flanges. The granite blocks cover the surface of the street between the inner edges of the flanges and such blocks, and the flanges cover the surface of that part of the street which is between the rails. The flanges as well as the granite blocks serve and are used as a pavement, and the flange may therefore be regarded as a part of the pavement.

We think that the averment that the defendant permitted a hole to remain within the rails” of the south track is not an averment that such hole was within or between the flanges, but is an averment that such hole was within or between the rails proper, and that proof that a part of the flange of said south rail was broken off at its junction with the web of the rail proper and was gone, leaving a hole where the flange was when in place, was proof of the averment of the declaration. Under the general principles of law, independent of any ordinance, appellant was bound to use reasonable care to keep the flanges reasonably safe for vehicles to pass along and over.

The evidence in this record shows that months before plaintiff’s intestate received the injuries' which caused his death, a portion of the flange of the south rail had been broken out, leaving a hole that imperiled the safety of drivers of wagons driving in defendant’s tracks. The evidence tends to show that appellant had actual notice that a portion of such flange was broken out and gone, but if not, it clearly shows that such condition had existed for such length of time that if appellant had exercised reasonable care it would have known of such condition. If the flange had been in repair, the wagon would have passed along in safety, although paving blocks were missing, and the jury were therefore warranted in finding that the defective condition of the flange directly contributed to the injury and death of plaintiff’s intestate.

We think that the evidence is sufficient to support the verdict, that the record is free from reversible error, and the judgment will therefore be affirmed.

Affirmed.