text:
    Eliza A. Todd, Administratrix of the Estate of Jonathan N. Todd, Deceased, Appellee, v. Louisville & Nashville Railroad Company, Appellant.
    1. Trial, § 155

      —what is province of jury as to evidence. Where the evidence is conflicting it is for the jury to say what facts are proved.
    2. Appeal and error, § 1411

      —when verdict not disturbed on appeal. The finding of a jury as to what facts are proved by conflicting evidence will not be disturbed unless there was error in rulings on evidence or in instructions.
    3. Carriers, § 307

      —how relation of carrier and passenger may arise. The relation of passenger and carrier is contractual, and requires the assent of the carrier, express or implied, before it can arise.
    4. Carriers, § 306

      —when assent to receive person as passenger not implied. No assent of a carrier to receive a person as a passenger can be implied unless the passenger presents himself in a proper manner and condition, and at a proper time and place.
    5. Carriers, § 251

      —when duty arises to accept and transport persons desiring to become passengers. A railroad company owes to persons desiring to be transported the duty of accepting and transporting them, provided they present themselves at a proper time and place, and in a proper manner and condition, and tender or are willing to pay the necessary fare.
    6. Carriers, § 310

      —when person may become a passenger. A person may be a passenger on a railroad train without procuring a ticket.
    7. Carriers, § 310

      —when person without ticket becomes passenger. A person who boards a train and reaches a place of safety thereon is a passenger although the agent of the carrier refuses to sell such passenger a ticket, and, although defendant’s porter attempts to prevent such passenger from entering the train, provided the passenger is able and willing to pay fare, and provided he is in a proper condition to be received as such.
    8. Carriers, § 480

      —when question whether passenger in proper condition to be received for jury. Whether a passenger is in a proper condition to be received as such is a question of fact for the jury on the evidence.
    9. Carriers, § 476

      —when evidence sufficient to sustain finding that passenger not intoxicated. In an action to recover for the death of plaintiff’s intestate, where there was evidence that deceased attempted to board a moving train and had reached a place of safety thereon but was pushed off the steps of a car by defend- , ant’s porter, causing deceased to fall under the wheels and be killed, evidence of plaintiff held sufficient, if believed, to sustain plaintiff’s claim that at such time deceased was not intoxicated and was ready, able and willing to pay his fare, although there was also evidence that shortly prior to attempting to board the train deceased had been drinking.
    10. Carriers, § 278

      —what is duty of carrier to protect passenger from injury. A person who boards a train and is ready, able and willing to pay his fare is a passenger, if not intoxicated, although shortly prior to boarding the train such passenger may have been drinking, and as such is entitled to the use of reasonable care and diligence on the part of the carrier and its servants to protect him from injury.
    11. Carriers, § 535

      —when trespasser may not be forcibly ejected. A railroad company has no right while a train is in motion to forcibly eject a trespasser who has reached a place of safety on the train, and will be liable for any injury caused by such ejection before the train has been stopped so that ejection will not endanger such trespasser’s life.
    12. Railroads, § 517

      —what duty owed to trespasser. A railroad company owes no duty to a trespasser other than that owed to other strangers.
    13. Carriers, § 535

      —what is right of trespasser as to freedom from injury. A trespasser on a train does not, by being such, forfeit the right inhering in every person as against every other person to be free from wilful and intentional injury by such other person.
    14. Carriers, § 340

      —when liable for acts of servants. A railroad company is liable for the acts of a servant within the scope of the duty and authority of such servant.
    15. Carriers, § 340

      —when porter acts within scope of his authority. In an action to recover for the death of plaintiff’s intestate where there was evidence that deceased attempted to board a moving train and had reached a place of safety thereon but was pushed off the steps of a car by defendant’s porter, causing deceased to fall under the wheels and be killed, held that the act of the porter was within the scope of his authority.
    16. Carriers, § 480

      —when question whether passenger attempting to board train guilty of contributory negligence for jury. In an action to recover for the death of plaintiff’s intestate, where there was evidence that deceased attempted to board a moving-train and had reached a place of safety thereon, but was pushed off by defendant’s porter, causing deceased to fall under the wheels and he killed, but where the evidence was conflicting, the question whether deceased was guilty of negligence contributing to his death held a question of fact for the jury.
    17. Carriers, § 526

      —when evidence sufficient to sustain finding that porter forcibly pushed person from car. In an action to recover for the death of plaintiff’s intestate, where there was evidence that deceased attempted to hoard a moving train and reached a place of safety thereon, hut was pushed from the steps of a car by defendant’s porter, causing deceased to fall under the wheels and be killed, but where the evidence was conflicting, held that a finding of the jury that such porter forcibly'pushed deceased from the car should not he disturbed, it appearing that the question was fairly presented to the jury.
    18. Instructions, § 151

      —when requested instructions properly refused. Requested instructions containing correct principles of law applicable to a case are properly refused where they are covered by others already given.
    19. Instructions, § 20

      —when properly refused. Instructions calling the attention of the jury to their examination prior to being accepted and sworn are properly refused.
    20. Appeal and error, § 1490

      —when exclusion of evidence not reversible error. In an action to recover for the death of plaintiff’s intestate, where there was evidence that deceased attempted to board a moving train and reached a place of safety thereon, hut was pushed from the steps of a car by defendant’s porter, causing deceased to fall under the wheels and be killed, the refusal of the trial court to permit the examination by defendant of a witness called by it as to an alleged statement made by the witness, such examination being sought for the purpose of refreshing the recollection or of awakening the conscience of the witness, held not reversible error although the court might properly have allowed the examination, it not appearing that the ruling affected the case in any material way.
    Appeal from the Circuit Court of Hamilton county; the Hon. Jacob R. Creighton, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    James M. Hamill and Charles P. Hamill, for appellant.
    H. Anderson and T. H. Creighton, for appellee.

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

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

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

   Mr. Justice Boggs

delivered the opinion of the court.

This was an action on the case brought by appellee, against the Louisville & Nashville Bailroad Company, to recover damages for the death of her husband. The declaration as originally filed consisted of five counts. The trial court, however, instructed the jury to find for the defendant on the first two counts.

The third count avers that Todd was waiting to become a passenger, and was ready,- willing and able to pay his fare after he had entered the train; that while he was endeavoring to do so, the defendant negligently started its train and by its servants violently, carelessly, negligently and improperly pushed Todd off the train, while in motion, causing him to fall under the wheels.

The fourth count is practically the same as the third. ' The fifth count alleges that while Todd was endeavoring to enter the train, the defendant’s servants seized him with great force and violently pushed, pulled and struck him to prevent him from entering the train, and negligently and improperly caused him to fall under the wheels of the train.

The defendant filed the general issue, a trial was had and the jury returned a verdict for $3,000. A motion for a new trial was overruled, and judgment rendered, from which judgment this appeal is taken.

The facts as they appear from the evidence are that Todd, a man of about thirty-five years of age, living at Bell Prairie, Illinois, where he operated a telephone exchange and was engaged in the insurance business, on the day he was killed went to Carmi to transact some business with the agents of the Insurance Company for which he was working. Todd finished his business at Carmi with the insurance agents between 1:30 and 2 o’clock in the afternoon. The train from McLeansboro was due to leave about 3:20. It is claimed by appellant that Todd left the insurance office and went more or less directly to the L. & N. station, where he tried to buy a ticket about 2 o’clock p. m., but the agent refused to sell him one because, as the agent testified, he appeared to be under the influence of liquor. It is also claimed by appellant that Todd went to a saloon not far from the railroad station where he was seen to take two or three drinks. Todd returned to the station perhaps twenty minutes before train time, where he was seen by several persons to drop his overcoat, breaking a bottle of whisky he had in the pocket. After this he returned to the saloon and purchased one or two bottles of whisky and then came back to the station, where he was seen talking with an insurance man named Garrison at the time the train pulled in.

The evidence on the part of appellant is also to the effect that Todd at this time was more or less under the influence of liquor and was pronounced by several witnesses who testified on the trial to be intoxicated. On the part of appellee the evidence is to the effect that while Todd may have taken two or three drinks he was not intoxicated, but was apparently sober at the time he was seen at the railroad station just prior to the accident.

The undisputed evidence is also to the effect that Todd was having’ a more or less heated conversation with a man by the name of Garrison at the time the train pulled in. The train waited at the station some three or four minutes and the evidence of appellant tends to show that the bell rang and the train had begun to move before Todd attempted to get on, while the evidence of appellee’s witnesses is to the effect that Todd attempted to board the train before it started. The evidence of all the witnesses who saw the accident is that Todd attempted to get on the train at the front end of the smoker.' As to what happened after Todd attempted to board the train there is a conflict of evidence, the witnesses for appellant testilying to the effect that Todd was intoxicated and that the colored porter refused to let him get on the train on account of such intoxication. The evidence of appellant is further to the effect that the colored porter was between Todd and the train when the rear end of the smoker came along, and that he prevented Todd from getting on the train at this time, and that when the rear end of the ladies’ car came along the porter grabbed the hand rails and got on the car. The train at this time was running some six to ten miles per hour. The evidence of appellant is further to the effect that Todd again attempted to get on the train, and had apparently caught the rear hand rail of the vestibule coach next back of the ladies’ coach, the door of which was shut, making it impossible for him to get on there. Todd had his overcoat over his left arm, the train was moving rapidly, whereupon he was thrown upon the platform and rolled under the train. The evidence of appellant further tended to show that the porter did not touch Todd when he made his last attempt to get on the train. On the other hand, the witnesses on the part of appellee testified that the train had not started when Todd attempted to board the same at the front end of the smoker; that after he attempted to get on, the porter prevented him from doing so and raised his hand and pushed him back. Todd then tried to get on the rear end of the smoker where the porter again pushed him off. Todd then stepped back towards the rear end of the ladies’ coach and took hold of the handle bar and stepped on the lower step. At this time the porter took hold' of bim and shoved or pushed him away and threw him from the car on the edge of the platform, where he fell under the coach, was run over and killed.

As in most cases, the testimony was more or less conflicting, but the above statement substantially covers the same. There being a conflict in the evidence it was for the jury to say what facts were proved, and its finding cannot be disturbed, if the court did not err in its ruling on the evidence and in the giving of its instructions.

It is contended by appellant, first, that appellee’s intestate was not a passenger on appellant’s train; second, that the porter was acting beyond the scope of his authority in pulling him from the steps of the car; and third, that the plaintiff’s intestate was killed or mangled in endeavoring to board the car while the train was moving.

Appellant devotes a large part of its brief and argument in support of its first proposition that Todd was not a passenger at the time the accident occurred, the argument being that the relation of passenger and carrier is a contractual relation requiring an express or implied assent on the part of the carrier before it can arise; and that there can be no implied assent on the part of the carrier to receive one who does not present himself in a proper condition and manner and at a proper place and time.

In support' of this proposition counsel for appellant cites numerous authorities, all of which we think substantially support his proposition, but we do not think it follows, as a proposition of law from the authorities cited, that appellee’s intestate was not a passenger of appellant at the time of the accident. A railroad company owes a duty to persons desiring to be carried, to accept and carry" such persons, providing they present themselves at a proper time and place, and in a proper manner, and condition, and tender or be willing to pay the necessary fare. This proposition is so elementary and fundamental that it needs no citation of authorities for its support.

"We do not understand appellant to contend that a person must necessarily procure a ticket in order to become a passenger and we do not understand that to be the law. Chicago & E. I. R. Co. v. Jennings, 190 Ill. 486; Merrill v. Michigan Cent. R. Co., 158 Ill. App. 40; Elliott on Railroads, see. 1879; Pennsylvania Co. v. McCaffrey, 173 Ill. 169; Illinois Cent. R. Co. v. O’Keefe, 168 Ill. 115.

Appellant contends that Todd applied at the ticket office for a ticket and, that, because of his intoxication, the agent refused to sell him a ticket, that it necessarily followed that at the time he had not become a passenger, and that when he applied for admission to the train and the porter refused to permit or allow him to board the train, that he was still not a passenger. For the sake of the argument it can be admitted that appellant’s contention on these points is well taken, still we are of the opinion that notwithstanding the fact that the agent refused to sell Todd a ticket, and notwithstanding that the porter attempted to prevent Todd from boarding the train, if Todd did board the train, and did reach a place of safety, he would then become a passenger, providing he was able and willing to pay his fare, and providing also he was in a proper condition to be received as such. As to whether he was in proper condition and as to whether he was ready, able and willing to pay his fare were questions of fact for the jury under the evidence. The evidence on the part of appellee if taken by the jury was abundantly sufficient to sustain appellee’s claim that Todd at the time he boarded the train was not intoxicated and was ready, able and willing to pay his fare, and if this be true, -he was then a passenger, and it was the duty of' the defendant and its servants to use all reasonable care and diligence to protect him. as such. We go further and say that we believe the law in this State to be that, conceding Todd to have been a trespasser as claimed by the appellant, still if he had reached a place of safety on the train then even though he were a trespasser, the defendant company would have had no right to forcibly eject him while the train was in motion. Before the defendant could have removed Todd from its train after it had started, it must stop its train so as not to endanger his life, and to do otherwise would render the company liable.

Second, it is next contended that even though the colored porter did push, pull or remove Todd from the train, under the circumstances claimed by appellee whereby he lost his life, that the company would not be liable because the act would be beyond the scope of the duties and authority of the said porter.

A number of authorities are cited by appellant’s counsel which it insisted go in support of their contention that the act of the porter was without the scope of his authority. We have examined these cases and we find that in not one of them ;s the question of the liability of a railroad company for the act of its porter in ejecting a passenger from its train involved.

In the case of the Illinois Cent. R. Co. v. King, reported in 179 Ill. 93, being one of the cases- relied on by appellant, we find that the question involved in that case was whether the railroad company was liable for the act of its brakeman in ejecting a trespasser from one of its freight trains. At page 93 the court in its opinion says: “Plaintiff was a trespasser, and defendant owed him no duty other than such as it owed to any stranger. But although he was a trespasser he did not forfeit the right which inheres in every person as against every other person in all conditions, that defendant should not wilfully and intentionally inflict an injury upon him. * * * ■

“There was evidence tending to prove that the act of the brakeman was wilful. He pulled the plaintiff from under the cars when the train was running at a speed of six or eight miles an hour, and manifested his feeling and willingness to inflict a needless injury upon plaintiff by cursing him and throwing a stone at him.

“The liability of defendant rests upon the further question whether the act of the brakeman was in the course, of his employment and authority as a servant of the defendant. If he was acting within the scope of his duty and employment the defendant would be liable for his act,” citing Chicago City Ry. Co. v. McMahon, 103 Ill. 485. “There was no want of evidence to show that the brakeman did the act within the scope of his duty. He testified as follows: ‘ Our instructions are to stop and put them off if we find some one beating their way. ’ * * * This evidence shows conclusively that it was within the scope of his directions and duties to put trespassers off the train.” The court in this case held the railway company liable for the act of the brakeman.

In the case at bar the porter, we think, in view of the evidence disclosed by the record, was acting within the scope of his authority.

Again it was contended by appellant that plaintiff’s intestate was guilty of negligence as a matter of law in attempting to board a moving train. We think, however, that in view of the conflicting evidence as to what actually occurred at the time Todd attempted to board the train, and as to whether or not he did board the train and reach a place of safety, renders the question of whether he was guilty of negligence contributing to his injury, a question of fact for the jury. The question was fairly presented to the jury as to whether or not the porter did forcibly push Todd from the cars, and their finding in that matter we think should not be disturbed. Appellant also assigned error on the giving of instructions on the part of appellee and on the refusal of instruction offered by appellant.

Appellee only offered two instructions and those were such as have been frequently approved by this and the Supreme Court. Twenty-four instructions were given at the request of appellant, and an examination of these instructions demonstrates that the trial court fairly instructed the jury on every phase of appellant’s case.

We find that, as to the instructions that were refused, all of them so far as they embodied correct principles of law applicable to the case at bar were covered by other instructions given by the court on behalf of appellant. Instruction thirty-three asked by the appellant and refused by the court calling attention of the jury to their examination prior to their being* accepted and sworn, we think, was improper and the trial court was right in refusing the same.

Appellant also contended that the court erred in refusing to permit the witness Myrle Sefried, called by it, to be questioned in regard to an alleged statement he was claimed to have made for the purpose of refreshing his recollection or awakening his conscience.

We are inclined to the opinion that the court should have allowed these questions to have been asked, but we do not think that their refusal would constitute reversible error. In fact we do not see how this ruling could in any way materially affect the case.

Accordingly the judgment of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Boggs

license: Public Domain

text:
    William George, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Carriers, § 482

      —when instruction erroneous as not conforming to evidence. In an action of trespass by a passenger to recover for being wrongfully removed from a railroad train on the ground that plaintiff was intoxicated, an instruction that exemplary damages might he awarded if it was found that, in removing plaintiff, defendant’s servant threw plaintiff down, held erroneous, there being no evidence that such servant threw plaintiff down in removing him.
    2. Carriers, § 482

      —when instruction that carrier has no right to remove intoxicated passenger erroneous. In an action of trespass by a passenger to recover for being wrongfully removed from a railroad train on the ground that he was intoxicated, an instruction leaving to the jury the question of gross and slight intoxication, and telling the jury that if plaintiff was not so intoxicated as to be disgusting, disagreeable or annoying to other passengers, or likely to become so, defendant had no right to remove plaintiff from the train, held erroneous under section 1 of the Act of 1911 (J. & A. 1[ 8887), providing that it shall be a criminal offense to drink intoxicating liquor or to he intoxicated on any railroad car used for the transportation of passengers, or on or about any railroad station or platform.
    3. Trial, § 187

      —when question of authority of servant raised on motion for direction of verdict. In an action of trespass to recover for injury sustained by the wrongful act of one alleged to be a servant of defendant, a motion by defendant for a peremptory instruction in its favor raises the question of the authority of such alleged servant.
    „ 4. Carriers, § 526

      —when evidence sufficient to show that conductor acted within scope of authority in ejecting person. In an action of trespass to recover for being wrongfully removed from a railroad train, where it appeared that plaintiff was removed by order of the train conductor by one alleged to have been a servant of defendant, but where there was no direct evidence as to the scope of such person’s authority, a finding that such act was within the scope of such servant’s authority held warranted under the evidence, it appearing that the jury were properly instructed, and that there were facts and circumstances surrounding the case from which the jury might properly so find.

      5. Trespass, § 45

      —when evidence of justification competent under general issue. Evidence of justification is competent under a plea of the general issue, though the commencement and ending of the declaration describe the action as trespass, provided the body of the declaration describe an action in the nature of an action on the case.
    6. Trespass, § 45

      —when evidence in mitigation of damages admissible under general issue. Evidence in mitigation of damages is competent under a plea of the general issue although the commencement and ending of the declaration describe the action as trespass, provided the body of the declaration describe an action in the nature of an action on the case.
    7. Pleading, § 38

      —what part of declaration controls its character. The body of a declaration and not its commencement and ending will control its character.
    Appeal from the Circuit Court of St. Clair county; the Hon. Louis Berneeuter, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded.
    Opinion filed December 1, 1915.
    Kramer, Kramer & Campbell and R. H. Wiechert, for appellant; John G. Drennan, of counsel.
    James O. Miller, for appellee.

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

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

   Mr. Justice Boggs

delivered the opinion of the court.

This is an action brought by William George, appellee, against the Illinois Central Railroad Company, appellant, to recover damages for refusing to allow the appellee to board the appellant’s train and for otherwise injuring the appellee. Said cause was tried and a verdict for two hundred and fifty dollars was rendered for appellee. Motions' for new trial and in arrest of judgment were overruled by the court and judgment entered, from which judgment this appeal was taken.

The evidence shows that William George, the appellee, was a resident of Winkle, Illinois, a town about twenty or twenty-five miles south of Lenzburg; that on December 22, 1913, in company with his wife, he came to Lenzbnrg to visit his daughter; he spent the day with his daughter and son-in-law, and during the visit drank some whisky. The train from Lenzbnrg to Winkle was due about six o’clock p. m., and appellee and his wife walked from their daughter’s to Lenzburg and arrived there .about three quarters of an hour before the train was due. They immediately went to the depot and purchased tickets from Lenzburg to Winkle. At that time appellee was sober, or at least did not show any indications of drunkenness to the persons who saw him. He immediately went across the street to a saloon and remained there until the train whistled for the Lenzbnrg station, when his wife walked across the street to the saloon and called him. While in the saloon appellee drank two beers and a pony of whisky. On the train in question was a man by the name of Kerr, a watchman for appellant, but whose particular duties, powers and authority are not shown by the record. Appellee got on the second step of the coach when Kerr started to take him off the train. The conductor came up to the point where appellee and Kerr were and asked what was wrong. Kerr replied appellee was drunk, whereupon the conductor said to Kerr not to let him on the train; that he did not want any drunken men on the train. Kerr then lifted appellee off the steps onto the depot platform and led him back from the train ten or twelve feet to a place close to the depot building. •

Appellee makes no claim of any injury on account of being taken off the train, except that he claims he was humiliated and prevented from continuing his journey by reason thereof. After the train left Kerr went into the private office of the station ag.ent in the depot building, and appellee, it seems, went into the waiting room of the depot, and claims he did so in order to get a refund on his ticket, but the agent and his assistant both testified that he asked when the next train would arrive for Winkle. When appellee started towards the door, Kerr came out of the agent’s office, and, as he and certain of the witnesses for appellant testified, started to assist appellee to the depot platform, as he was having considerable trouble on account of his intoxicated condition. Certain of the witnesses for appellee testified that when Kerr and appellee reached the outside door of the building Kerr pushed appellee, and that he fell on the depot platform with his feet just inside the doorway.

On the other hand, certain of appellant’s witnesses testified that when he got to the doorway he let loose of appellee’s arms and that appellee in his intoxicated condition slipped upon the floor and fell. There is a conflict in the evidence at this point.

Kerr did not testify for the reason that between the time of the injury and the time of the trial he had left defendant’s employ and returned to the old country.

There was no evidence as to Kerr’s agency for the appellant, his authority or the scope of his duty, except that one witness testified that Kerr was a watchman of the appellant, and one witness referred to Kerr as a special agent of the appellant, and said that he had known of his being after some boys who stole from freight rooms at Lenzburg and Marissa. After the occurrence of the events herein stated, appellee returned to the saloon where he spent the night. The next morning he returned to his home in Winkle.

Appellant’s most serious contentions for a reversal of this case are, first, that the court erred in giving appellee’s fourth and sixth instructions.

The fourth instruction is as follows:

“If a railway conductor orders a special officer to prevent a person who has purchased a ticket, and who is not drunk, from riding as a passenger, upon the assigned reason that said person was drunk, and it should turn out to be untrue that he was drunk, and if the special officer in whose custody he was assigned throws this passenger down, using language intended to wound the feelings of the passenger and to bring him into contempt and disgrace, in a suit for trespass against the company the jury may allow exemplary damages.”

This instruction should not have been given, as there was no evidence that Kerr or any one else in ejecting appellee from the train threw him down. Appellee, himself, testified that when ejected from the train he was not hurt and other witnesses who saw the occurrence testified to the same effect.

Appellee’s sixth instruction is as follows:

“The court instructs the jury that common carriers are not required to receive for passage a drunken person, if such person is intoxicated to such an extent as to render it probable that he would be disgusting, disagreeable, or annoying to other passengers. But slight intoxication, such as would not seriously affect the conduct of the passenger, will not justify the company in refusing to receive and carry him, and if you believe from the evidence in this case that the plaintiff was not drunk, or if you believe from the evidence that he was only slightly intoxicated, then it is a question for you to determine from all of the evidence whether his intoxication, if you find that he was intoxicated, was to such an extent or degree that he likely would be an improper person to carry as a passenger. If you determine from the evidence that he was intoxicated to such a degree that his conduct would be disgusting to other passengers, disagreeable or annoying to them, then the conductor was justified in refusing him passage on the train; if you do not find from the evidence that he was intoxicated to such a degree then you may find for the plaintiff.
“Whether plaintiff was intoxicated at all is a question of fact for you to determine.
“Whether plaintiff was slightly intoxicated is also a question of fact for you to determine.”

This instruction should not have been given as it undertakes to submit to the jury the question of gross and slight intoxication. This instruction might have been good prior to the passage of the act (section 1 of Act of 1911, J. & A. 8887) which relates to persons being intoxicated upon a railway train or on a depot platform or in a depot building, but since the passage of the statute in question, there can be no doubt that this instruction does not state the law. The evidence in this case tended to show that appellee was staggering and reeling, and had to be assisted upon the train, but there is no evidence that he was disagreeable or annoying. If this instruction states the law correctly, then a railway company cannot refuse admission to a passenger, no matter how intoxicated he is, unless he is disgusting, disagreeable or annoying, or likely to become.so.

The second contention of appellant is that the court erred in refusing its peremptory instructions to the jury to find the issues for the appellant. By this assignment of error, appellant raises the question whether or not it is liable for the alleged injury claimed to have been suffered by him at the depot building, without further evidence showing the authority of the man Kerr. While there is no direct evidence as to the scope of Kerr’s authority, still we are unable to say that from all the facts and circumstances surrounding the case a jury would not be warranted in finding, under the guidance of proper instructions, the scope of Kerr’s authority to be sufficient to bind the defendant in this case. The court, therefore, did not err in refusing appellant’s peremptory instructions.

It is contended by appellee that the declaration is “in trespass,” and that, therefore, evidence in justification and mitigation of damages are not admissible under the plea of the general issue filed by appellant in this case. In reply to this contention, it may be said, that plaintiff’s declaration, except in its commencement and ending, is in the nature of an action on the case, and, under the authorities, the body of the declaration, being in case, would control its character. There was a conflict of evidence as to what took place in the depot, and as this case is to be submitted to another jury we will not express any opinion in regard to the weight of the evidence.

For the errors above indicated this cause will be reversed and remanded.

Reversed and remanded.


text:
    Peter Baker et al., Appellees, v. Charles I. Pierce, Appellant.
    1. Equity, § 285

      —when allegations and proof must correspond. In equity pleading, the allegations of the bill, the evidence and the decree must correspond.
    2. Reformation of instruments, § 47

      —when evidence sufficient to show award complies with intent of arbitrators. In a bill to reform ahd correct the award of arbitrators and alleging that owing to a mistake of the scrivener the award did not express the true intent of the arbitrators, evidence held to show that the award correctly expressed the intent of the arbitrators.
    3. Arbitration and award, § 75

      —when equity will not relieve against error of law. No relief can be granted in equity for a mistake of law by arbitrators in misunderstanding the legal scope and effect of an award made by such arbitrators.
    4. Reformation of instruments, § 11

      —what does not constitute mutual mistake. The execution of a written instrument representing the intention and understanding of the parties at the time of execution, with full knowledge of the facts, will negative a claim of mutual mistake and will operate to defeat a bill to reform on that ground, it being not a question of what parties would have intended had they been better informed, but of what they intended as they were informed.
    5. Reformation of instruments, § 12

      —-what necessary to reform instrument on ground of mistake. In order to justify the reformation of a written instrument on the ground of mistake it is necessary, first, that the mistake be of fact and not of law; second, that the mistake be proved by clear and convincing evidence; and third, that the mistake be mutual and common to both parties.
    6. Words and phrases, —mistake of law. A mistake of law is an erroneous conclusion as to the legal effect of known facts.

      7. Contracts, § 205

      —when construction of for court. The construction of words in an instrument is a matter of law.
    8. Equity, § 18

      —when parties not relieved because of mistake of law. If the words of an instrument are written as intended by the parties, or as they supposed the words were written, when executing the instrument, no relief can be had either at law or in equity, no matter how much the parties may have mistaken the legal effect of the words used.
    9. Contracts, § 205

      —when insertion of words for jury. The insertion of words in a written instrument is a question of fact.
    10. Reformation of instruments, § 11

      —when written instrument may be reformed. A written instrument can be reformed only for mistakes of fact.
    11. Reformation of instruments, § 2

      —applicability of rules to awards of arbitrators. The rules applicable to the reformation of written instruments apply- to the awards of arbitrators.
    12. Arbitration and award, § 52

      —what is nature of award. The awards of arbitrators partake of the character of the findings and judgment of a court, the parties to the arbitration in effect agreeing to submit their ease to the arbitrators both on the facts and on the law.
    13. Arbitration and award, § 53

      —when finding and award of arbitrators conclusive. There is no appeal from the finding and award of arbitrators if the proceedings before them are regular.
    14. Arbitration and award, § 50

      —when awards may not be corrected. Awards made by arbitrators cannot be corrected for errors of law.
    15. Arbitration and award, § 64

      —when party to arbitration agreement estopped to claim invalidity of agreement. In a bill to reform the award of arbitrators on the ground of mistake, where it appeared that some of the parties to the arbitration did not sign the agreement to submit the cause to the arbitrators, held that defendant was estopped to claim that the agreement was void on that ground, it appearing that defendant stipulated at the hearing that if such other parties were present they would testify that they had authorized complainant to enter into the agreement on their behalf.
    16. Arbitration and award, § 36

      —when award void. An award of arbitrators which is not as broad as the submission is void.
    17. Arbitration and award, § 51

      —when decree reforming award erroneous. In a bill to reform an award of arbitrators on the ground' of mistake, where the evidence showed that the award sought to be reformed was as intended by the arbitrators, a decree reforming the award held erroneous.

      Appeal from the Circuit Court of Saline county; the Hon. William N. Butler, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded with directions.
    Opinion filed December 1, 1915.
    Warren Nichols and Whitley & Combe, for appellant.
    Clark & Hutton and W. F. Scott, for appellees.

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

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

   Mr. Justice Boggs

delivered the opinion of the court.

This was an action brought by Peter Baker, Charles Baker and W. A. Grant, appellees, complainants below, against Charles I. Pierce, appellant, defendant below, by bill in chancery to reform an award of arbitration.

A difference had arisen, it seems, between appellees and appellant in relation to certain option contracts. On or about the 21st day of March, 1913,. a contract was entered into signed by W. A. Grant, one of said appellees, who purported to act also for said Peter Baker and Charles Baker, and by appellant for the submission of said differences to arbitration. The arbitrators were selected and on May 26, 1913, made their award, the terms of which are as follows: “We, the undersigned commissioners appointed by 0. I. Pierce and W. A. Grant, as a board of arbitration to adjust the differences set forth in the agreement hereto attached, after hearing all the evidence and examining the exhibits, is of the opinion that C. I. Pierce alone' is responsible, in that he did not carry out the provisions of the contract entered into with W. A. Grant, therefore, we do hereby award to W. A. Grant the sum of Five Thousand Five Hundred Dollars as a just and equitable sum in full settlement of all things submitted to the board under the said agreement.

“Said sum of Five Thousand Five Hundred Dollars to be paid to W. A. Grant by C. I. Pierce within ten days from the date hereof.

“Dated at Harrisburg, Illinois, this 26th day of May, 1913.
Wm. Johusoh,
J$ro. B. Lee,
A. W. Lewis.”

As will be seen, nothing was said in the award in relation to the Bakers, but the award ran in the name of appellee W. A. Grant alone. It is the contention of appellees that said award, while made in the name of appellee W. A. Grant, was intended as an award to all of appellees, and that such award should be so corrected as to carry out such intention. The bill filed by appellees set out said agreement for a submission to arbitration and the award of said arbitrators and alleged that said award so made by said arbitrators did not, on account of an error of the scrivener, correctly set forth their findings and prayed that the same be corrected and reformed.

The answer of appellant denied the right of appellees to have said award reformed and averred that said award correctly set forth the findings of said arbitrators. The evidence was taken by a special master and reported to the court and on hearing the trial court found the issues for appellees, complainants below, and a decree was entered reforming and correcting said award as prayed. From said decree this appeal is prosecuted.

Appellees in their bill of complaint base their right to relief on the ground that the scrivener who prepared the draft of said award, by mistake, failed to express the true intention of said arbitrators. The allegations of the bill are that the award “as prepared by the scrivener on account of said mistake did not express the true intention of the arbitrators,” and the bill prays “that said error or mistake may be corrected and the said writing reformed so as to truly express and describe the intention of said arbitrators.”

It is a fundamental rule of equity pleading that the allegations of a bill, the proof and decree must correspond. In other words, relief can only be granted on a sufficient bill supported by competent evidence. McKay v. Bissett, 10 Ill. (5 Gilm.) 499; Morgan v. Smith, 11 Ill. 194; Russell v. Conners, 140 Ill. 660; Leahy v. Nolan, 261 Ill. 219.

In the latter case the court in its opinion says: “It is the rule of courts of equity that allegations and proofs must correspond, and in order to grant the relief prayed for in a bill the court must be able to find that the facts alleged therein are true.”

Do the evidence, facts and circumstances in the.case support the allegations of appellees’ bill, and the decree of the trial court? The only witnesses who testify in regard to the award and its contents are the three arbitrators, and it is impossible for us after a careful reading and consideration of their testimony to see how it in any way goes in support of the allegations of appellees’ bill. Instead of the testimony of said arbitrators tending to show that the award did not contain the terms and conditions agreed on and determined by them, it shows exactly to the contrary, and that the arbitrators and each of them fully knew and understood its terms and conditions and carefully read and considered the same before signing. John B. Lee, the arbitrator selected by W. A. Grant, says, in answer to the question, “You may examine the paper I show you marked Complainants’ Exhibit ‘A’ (the award) and state whether or not that was the finding as reduced to writing? ‘Yes, sir, the agreed finding of the Board.’

“Q. In whose favor was it the intention of the Board to find? In favor of what individual? ‘A.’ It was the intention to find in favor of Mr. Grant, Mr. W. A. Grant.”
On cross-examination, the same witness said: “Q. Who prepared this document here marked Complainants’ exhibit ‘A.’ who prepared that? A. Judge Lewis, Will Johnson and myself.
“Q. Was it penciled ont before you signed it? A. Yes, sir.
“Q. And thoroughly discussed? A. Yes, sir, that is my understanding ?
“Q. Didn’t this writing express every intention you had in that regard? A. Every bit of it as far as I know.
“Q. And you agreed on every word and character and syllable in this exhibit? A. We changed it, one of us I think, possibly all of us had something to say about the change and afterward agreed on the drafted copy.
“Q. And you went in the front room and wrote it as you agreed on? A. Yes, sir.
“Q. And this expresses the intention of the three, of you don’t it? A. I think so.
“Q. There is no mistake about any part of it as far as your intention at the time is concerned? A. I don’t think there is any mistake about it, we wrote it just as we intended to write it.
‘'Q. Did you read it before you signed it ? A. Yes, sir.”
William Johnson, the arbitrator selected by appellant Charles I. Pierce, says, in answer to the question, “So far as this writing is concerned this Exhibit ‘A’ signed by you and Mr. Lee and Judge Lewis, is there any mistake about that in any way? A. No, no mistake.
“Q. Expressed it just exactly as you intended it? A. Yes, sir, the document is brief and that was one thing we had in mind, not to make our allotment too long and convey the meaning we wanted it to convey.
“Q. It does convey the meaning you intended it to convey does it not? A. Yes, sir.”

Judge Lewis testified, in answer to the question, “I will ask you if at the time you signed it (the award) you understood its contents? A. I understood the words. I can’t say I understood the legal construction of it, I thought I did.

“Q. You knew exactly what it said at the time you signed it? A. I knew the words in it.”

A great many more questions of a similar character were asked said witness to which similar answers were given. From this testimony it clearly appears that each and all of the said arbitrators knew and fully understood the terms and conditions of said award. The most that can be said is that they may not all have understood its legal scope and effect. In other words, there may have been an error of law made by said arbitrators, but certainly not an error or mistake of fact.

The bill charges an error or mistake of fact in the drafting of said award, but does not charge an error or mistake of law on the part of said arbitrators, but if it had, the allegation would not have been good, as no relief can be granted in equity therefor.

The rule as laid down in Cyc., vol. 34, at page 947, is as follows. “Where an instrument is executed according to the intention and understanding of the parties at the time of execution, and with full knowledge of the facts, such knowledge and execution will operate to defeat an action to reform in that it negatives mutual mistake. It is not what the parties would have intended if they had known better, but what did they intend at the time, informed as they were.”

The Supreme Court of the State in passing on this question in the case of Purvines v. Harrison, 151 Ill., page 223 says: “To justify the reformation of a written instrument upon the ground of mistake, it is necessary, first, that the mistake should be one of fact and not of law (Sibert v. McAvoy, 15 Ill. 106); second, that the mistake should be proved by clear and convincing evidence (2 Pom. Eq. Jur., sec. 682); third, that the mistake should he mutual and common to both parties to the instrument. (Sutherland v. Sutherland, 69 Ill. 481.) A mistake of law is an erroneous conclusion as to the legal effect of known facts. (Hurd v. Hall, 12 Wis. 113.) The construction of words is a matter of law. (Sibert v. McAvoy, supra.) Where parties instructed an officer to prepare a quitclaim deed for their execution, but he drew a deed containing language which amounted in law to a covenant of title in fee, and they signed the deed knowing that such language was in it, they were held to have been mistaken in the law, that is to say, in the legal effect of the language used and in the legal consequences of retaining such language in the deed. (Gordere v. Downing, 18 Ill. 492.)”

In Seymour v. Bowles, 172 Ill. 521, on page 524, the court uses this language: ‘ ‘ The allegation in the bill that in drafting the deed the word ‘heirs’ was mistakenly used for ‘children’ presents no case for the correction of a mistake on reformation of the deed. The alleged mistake is one of law, and cannot be corrected. ’ ’

In Sibert v. McAvoy, 15 Ill. 106, our Supreme Court says: “If the words are written as the'parties intended they should be written, or supposed they were written, when they signed the contract, no matter how much they may be mistaken as to the meaning of those words, no relief can be granted, either at law or in equity. The construction of words is a matter of law. The insertion of words is a matter of fact. It is for mistakes of fact, alone, that contracts may be reformed.” To the same effect is Wood v. Price, 46 Ill. 439, and Bonney v. Stoughton, 122 Ill. 536.

While these cases are cases where the Supreme Court had under consideration contracts, or instruments of that character, still we think the same rules as there laid down should apply to awards of arbitrators.

Awards of this kind partake of the character of the finding and judgment of a court. The parties in effect submit to the arbitrators their case both as to the facts and the law, and if the proceedings of the arbitrators are regular there is no appeal from their finding and award. This being true, it could hardly be contended that an award could any more be reformed and corrected for errors of law made by the arbitrators than that a decree of a court of equity could be reformed after the term had closed, because the chancellor who rendered the same did so under a misapprehension of its legal effect and meaning.

Appellant also urges as a reason why this cause should be reversed, that the agreement to submit to arbitrators is void because it was not signed by the Bakers, but we are inclined to hold that he is estopped from urging this objection on account of the stipulation made on the hearing, to the effect that if the Bakers were present they would testify that they authorized W. A. Grant to enter into said agreement on their behalf.

It is also urged by appellant that the award made by the arbitrators is void because it does not dispose of all matters of difference submitted to them by said agreement. In other words, that the award is not as broad as the submission. If this be true, then under the holdings of. the Supreme and Appellate Courts of this State it would be void. Taylor v. Scott, Foresman & Co., 178 Ill. App. 487; Alfred v. Kankakee & S. W. R. Co., 92 Ill. 609.

In view, however, of what we have said, it is not necessary for us to pass on this point, and inasmuch as the record discloses that suit was instituted on said award we do not think we should express any opinion touching its validity.

For the reasons assigned we think the trial court erred in rendering a decree reforming said award. The judgment must, therefore, be reversed and the cause remanded with direction to dismiss said bill for want of equity.

Reversed and remanded with directions.


text:
    John Henry, Appellee, v. Charles Britt, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Pulaski county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded with directions.
    Opinion filed December 1, 1915.
    Statement of the Case.
    Bill by John Henry, complainant, against Charles Britt, defendant, in the Circuit Court of Pulaski county, to compel defendant to convey to complainant certain premises pursuant to a verbal contract between one Grant Britt, deceased, father of defendant, and complainant. From a decree granting the relief prayed, defendant appeals.
    At the hearing’ defendant disputed only whether complainant had repaid the advances made to him by Grant Britt, and whether the verbal agreement between complainant and Grant Britt was within the Statute of Frauds.
    The bill alleged that on August 1,1904, J. B. Mathis, the owner of the Southwest Quarter of the Southeast Quarter of Section 29, in Township 14 South, Range 1 West of the Third Principal Meridian, in Pulaski County, made and delivered to the complainant a bond, also signed by his wife, Nellie I. Mathis, conditioned for the conveyance of the described tract of land to the complainant for the sum of $850, payable $175 cash in hand, and the remainder in annual payments of $135 cash, with interest at seven per cent. Complainant made the cash payment and took possession and has ever since been in possession. On May 1,1905, J. B. Mathis and wife executed a quitclaim deed of the premises to A. W. Brown, subject to the conditions of the bond, which were assumed by Brown. In the year 1906, the complainant made an agreement with Grant Britt, by which Britt agreed to pay to Brown the amount remaining due and unpaid by the terms of the bond, and upon complainant repaying the amount so paid, to convey the premises to the complainant. In pursuance of said agreement, the complainant assigned to Grant Britt the bond for a deed. On October 25, 1906, Brown died, and after-wards the defendant Margaret A. Brown was appointed executrix of his will. On December 14, 1906, Grant Britt died, leaving the defendant Charles Britt, a minor, his son and only heir at law. On October 15, 1907, Margaret A. Brown, as executrix, conveyed the premises to Charles Britt. On October 19, 1908, H. M. Britt was appointed guardian of Charles Britt. The complainant paid to H. M. Britt, as guardian, the remainder of the purchase money due. When the bill was filed the defendant Burton Bagby was guardian of Charles Britt, and the complainant had demanded the execution of a deed, which was refused. The defendant Margaret A. Brown, executrix, by her answer admitted the making of the conveyance to A. W. Brown, subject to the bond for a deed, his death, and the conveyance by her, as executrix, to Charles Britt. The defendants Charles Britt and Burton Bagby, his guardian, answered that they were not informed as to the alleged purchase by the complainant from J. B. Mathis, or the payment of $175, or of the deed from Mathis and wife to Brown. They did not deny the averments of the bill respecting the agreement between the complainant and Grant Britt, and made no answer to such averments, but denied that complainant had performed or had paid any sum to either of them, or on behalf of either of them, on the purchase price of the land, or that he had paid any taxes or assessments. They alleged that the only thing that the complainant ever gave them was a few loads of corn paid as rent, and they invoked the Statute of Frauds and Perjuries as against the agreement between the complainant and Grant Britt.
    Complainant testified:
    “I paid $300 to H. M. Britt. I paid him $300. Every dollar is here on this stick (presenting stick) every notch on this stick is $1.00.
    Q. "Where did you get that money?
    A. I raised strawberries, peas and beans and shipped them.
    Q. Did you pay him $300 at one time ?
    A. No, sir. Every time 1 paid him $10 I would cut ten notches on this stick. Every notch here is a dollar.
    Q. When did you put these notches there?
    A. Every time I made a payment.”
    It was sought to corroborate the testimony of complainant with reference to this payment by his sons, Fred Henry and John Henry, Jr., and his daughter Margaret Henry. Fred Henry testified that he gave his father $110, and that his sister Margaret gave her father $170, and that their father had $20, making in all $300, and that he took this $300 and paid it to H. M. Britt on the land. The testimony of Margaret was practically to the same effect. However, neither of them testified at being present and seeing the money paid to Britt, but simply that they gave their father the money and that he was going to make the payment to Britt, and that he brought back with him a slip of paper which they called a receipt. This paper was in words and figures as follows: “John Henry to H. M. Britt, $300.00.” John Henry, Jr., who was fourteen years old when he testified, said that he was with his father when his father delivered some money to H. M. Britt, and he saw them pour the money out on the table and count it, but he did not know how much there was, or for what purpose it was delivered to Britt. Witness was ten years of age at the time the money was alleged to have been paid.
    It also appeared that at the time of the death of Grant Britt, complainant was largely indebted to Britt for different sums of money secured by chattel mortgages, which mortgages came to the possession of H. M. Britt, as administrator of the Grant Britt estate; that they had various transactions with reference to these chattel mortgages, the same being from time to time renewed, and, in fact, the evidence showed that at least one of them was still unpaid.
    Complainant on his cross-examination with reference to these chattel mortgages was asked these questions: “Q. Was it after Grant Britt’s death you made this chattel mortgage ? Do you remember being before Mr. Curt to take the acknowledgment, do you remember that? A. He told me at that time that I did not owe but $300.00.”
    H. M. Britt, administrator of the estate of Grant Britt, deceased, and for a time guardian of Charles Britt, testified in effect that at no time, after the death of Grant Britt, did complainant make him any payments of any kind whatever on this bond for a deed. Charles Britt testified that at no time did complainant pay him anything on said land.
    The chancellor found the facts to be as alleged in the bill and that defendant had attained his majority. The chancellor then stated an account charging complainant with principal, interest and taxes in the sum of $1,099.90, and credits him as follows: Amount paid to Grant Britt $181; interest on same, seven per cent, from date of payment to date of decree, $76.02; and with $300 paid to H. M. Britt, guardian of Charles Britt, with interest on the same from the date of payment to wit: May 30, 1909, to the date of the decree, $93; and also credited him with forty-three loads of com at eighteen bushels per load, at fifty cents per bushel, $387; with interest on same, $27.09, making a total credit of $1,064.11, leaving a balance owing by appellee to appellant of $35.79.
    The chancellor then decreed that on payment of such balance defendant should execute and deliver a deed of the premises to complainant, or in default of such conveyance a special master in- chancery, appointed for the purpose, should execute the deed in defendant’s behalf.
    Abstract of the Decision.
    1. Mortgages, § 12

      —when assigned bond for deed constitutes mortgage. An assignment of a bond for a deed to land on the understanding that the assignee shall take the deed and hold the same as security for the repayment by assignor of advances of money to pay the amount due on the bond and the amount of taxes to be paid by the assignee amounts to a mortgage, and the deed so taken will stand as security for the money so advanced.
    2. Mortgages, § 716

      —when bill to compel conveyance of land bill to redeem. Where the evidence shows that defendant’s predecessor in title to land took title under a verbal agreement to convey to complainant on payment of certain sums of money, a bill to compel such a conveyance is a bill to redeem and not a bill for specific performance.
    3. Fraud, Statute of, § 28

      —when inapplicable to verbal agreement to convey land. The Statute of Frauds has no application to a case where one takes title to land under verbal agreement to convey to another on payment of certain sums of money, such transaction being a mortgage, and not an agreement for the sale of land.
    4. Mortgages, § 720

      —when oral testimony of agreement to reconvey land admissible. In a bill to compel conveyance of land, alleging that the predecessor of defendant in title to certain land took title on a verbal agreement to convey to complainant on payment of certain sums of money, oral testimony of the agreement to reconvey is competent.
    . 5. Mortgages, § 12

      —when evidence sufficient to sustain finding that bond for deed assigned as security for money advanced. In a bill to compel the conveyance of land alleging that complainant, having a bond for a deed of the land in question, assigned the bond to defendant’s predecessor in title thereto under a verbal agreement that such predecessor would advance the sums due on the bond, and the sums necessary to pay the taxes on the land, and would convey to complainant on payment of the sums so advanced, evidence held to sustain a finding that complainant assigned his bond to such predecessor as security for the money advanced.

      C. S. Muller, and L. M. Bradley, for appellant.
    Charles L. Rice, for appellee.

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

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

   Mr. Justice Boggs

delivered the opinion of the court.

6. Appeal and error, § 1410 —when finding set aside on appeal. A finding will be set aside on appeal where it is against the manifest weight of the evidence.

7. Mortgages, § 720 —when evidence insufficient, to sustain decree stating an account. In a bill to compel the conveyance of land, where it appeared that defendant’s predecessor in title to the land took title under an agreement to convey to complainant, on payment of certain sums of money, a decree stating an account showing the amount due from complainant and the amount paid by him, held sustained by the evidence except as to one item.

8. Payment, § 29 —when evidence insufficient to establish payment. In a bill to compel the conveyance of land, where it appeared that defendant’s predecessor in title to the land took title under an agreement to convey to complainant, on payment of certain sums, a decree allowing in its statement of account a payment of $300 by complainant, held manifestly against the weight of the evidence, such finding being made on the uncorroborated testimony of complainant, which was contradicted by defendant’s evidence and impeached by evidence tending to show that complainant’s reputation for truth and veracity was bad in the community where he resided.

9. Payment, § 29 —when •purported receipt entitled to little •weight as evidence of payment. In a bill to compel the conveyance of land, where it appeared that defendant’s predecessor in title to the land had taken title under an agreement to convey to complainant, on payment of certain sums of money, and where the payment of an item of $300 to the administrator of such predecessor was disputed, a paper reading: “John Henry to H. M. Britt, $300.00,” held not a receipt and entitled to little weight, the paper being not signed, and there being no evidence of handwriting, or to show how complainant came by the paper other than his own testimony, and there being evidence that complainant owed H. M. Britt $300 on another transaction at the time when the payment was alleged to have been made, to which the paper might have referred.

10. Payment, § 27 —who has burden of proving payment. One claiming to have made a payment has the burden of proving the payment by a preponderance of the evidence.

11. Mortgages, § 720*—when evidence sufficient to sustain finding that corn paid on indebtedness for land. In a bill to compel the conveyance of land, where it appeared that defendant’s predecessor in title to the land had taken title under an agreement to convey to complainant, on payment of certain sums of money, a finding that certain corn was paid on account of the sums due defendant’s predecessor and not as rent, held sustained by the evidence.


text:
    Mrs. Ida Keirsey, Appellant, v. Dr. George K. McNeemer, Appellee.
    1. Limitation oe actions, § 10

      —when declaration examined to determine which of two statutes applies. In an action against a physician to recover for injury sustained by alleged unskilful treatment of plaintiff by defendant, the question as to what statute of limitation applies, whether Hurd’s Rev. St., ch. 83, sec. 14 (J. & A. f 7209), providing that actions, inter alia, for an injury to the person shall be commenced within two years next after the cause of action accrues, or section 15 of the same chapter (J. & A. If 7210), providing that actions, inter alia, on unwritten contracts, expressed or implied, shall be commenced within five years of such time, is to be determined from an examination of the declaration, to see whether plaintiff sues.for breach of contract or in tort for injuries without reference to the contract.
    2. Physicians and surgeons, § 18b

      —when declaration states cause of action for negligent and unsMlful treatment. In an action •against a physician to recover for injury sustained by alleged unskilful treatment of plaintiff by defendant, a declaration alleging that defendant “so unskilfully and negligently conducted himself in that behalf, that by and through his want of skill and care and neglect” plaintiff’s sickness was aggravated, causing the injury sought to be recovered for, held to state a cause of action for negligent and unskilful treatment by defendant, without relying on contract other than that implied by the law obliging physicians to use reasonable care and skill in treatment without reference to contract of hiring.
    3. Physicians and surgeons, § 17

      —what is nature of action. Actions against physicians for malpractice and for negligent and unskilful treatment fall within the class of actions for personal injuries.
    4. Limitation of actions, § 4

      —how statute construed. The words “all other civil actions not otherwise provided for” in Hurd’s Rev. St., ch. 83, sec. 14 (J. & A. 7209), providing that certain actions be commenced within five years next after the cause of action accrues, include only actions ejusdem generis with “contracts expressed or implied, or on awards of arbitration, or for the recovery of damages done to property real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof,” being the actions specifically included within the operation of the section.
    5. ' Limitation of actions, § 4

      —how statute construed relative to action against physician for negligent injuries. An action against a physician to recover for injuries sustained as a result o'f unskilful and negligent treatment of plaintiff by defendant is not ejusdem, generis with actions on “contracts expressed or implied,” or on “awards of arbitration,” or “for the recovery of damages done to property, real or personal,” or "to recover the possession of personal property or damages for the detention or conversion thereof.”
    6. Physicians and surgeons, § 18b

      —when demurrer to plea of statute of limitations properly overruled. In an action against a physician to recover for injuries sustained as a result of alleged “want of skill and care and neglect” by defendant in treating plaintiff, a demurrer to a plea of Hurd’s Rev. St., ch. 83, sec. 15 (J. & A. K 7210), providing that actions, inter alia, for injury to the person shall be commenced within two years next after the cause Of action accrues, held correctly overruled, and judgment thereon correctly entered.
    McBride, J., dissenting.
    Appeal from the Circuit Court of Alexander county; the Hon. William N. Butler, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    Thomas H. Sheridan, for appellant.
    Reed Green, for appellee; Robert J. Folonie, of counsel.

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

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

   Mr. Justice Boggs

delivered the opinion of the court.

This is an action on the ease, brought by appellant, plaintiff below, against appellee, defendant below, a physician and surgeon, to recover damages for failure to exercise, ordinary skill and care as such in treating said plaintiff.

The only question involved in this case is whether or not actions of this character are barred by the Two-Tear, or the Five-Tear, Statute of Limitations.

The injury complained of occurred on or about the 20th day of May, 1910, more than two years prior to the bringing of said' suit, which was instituted on the 30th day of January, 1913.

The declaration, omitting the formal part, is as follows: “Whereas, the defendant, before and at the time of committing the grievances hereinafter mentioned in the county aforesaid, was exercising the profession of a physician and surgeon, and the plaintiff, on May 20,1910, and while the defendant was so exercising such profession, there retained and employed the defendant, as such physician and surgeon, for reward to attend and treat plaintiff for the cure of the plaintiff of a certain sickness and malady under which she was then and there suffering; and thereupon the defendant, as such physician and surgeon, then and there accepted such retainer and employment, and entered upon the treatment of the plaintiff in pursuance thereof, and continued such treatment for the space of four months. Tet, the defendant, not regarding his duty as such physician and surgeon, during that time there so unskilfully and negligently conducted himself in that behalf, that by and through his want of skill and care and neglect, the said sickness and malady of the plaintiff then and there became greatly increased and aggravated, and the plaintiff then and there underwent great and unnecessary anguish and distress, and became crippled for life and thereby permanently injured, and became and was greatly disordered, reduced and weakened in body and so remained for a long time, to-wit: hitherto, during all such time the plaintiff suffered great pain, and was hindered and prevented from transacting her affairs and business; and also by means of the premises, the plaintiff has been obliged to pay, and has paid to divers other physicians' and surgeons, divers sums of money amounting to $500.00, in and about endeavoring to be cured of her said sickness, malady and disorder; to the damage of the plaintiff of $5,000.00, etc.”

To which declaration the defendant entered a plea .of not guilty and a plea setting up the Two-Year Statute of Limitations. To this latter plea the plaintiff filed a general demurrer which was overruled by the trial court, and, the plaintiff having elected to stand by her said demurrer, judgment was entered in bar of action and for costs.

It is insisted by appellant that said cause of action does not come under section 14, chapter 83 of Hurd’s Revised Statutes (J. & A. 7209), but that it is governed by section 15 of said chapter (J. & A. 7210).

Said section 14 is as follows: “Actions for damages for an injury to the person, or for false imprisonment, or malicious prosecution, or for statutory penalty, or for abduction, or for seduction, or for criminal conversation, shall be commenced within two years next after the cause of action accrued.”

Section 15 provides that: “Actions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrued.”

In order to determine which of said sections are applicable, it will be necessary to examine the declaration and determine from it whether or not the plaintiff is suing for an alleged breach of the contract, or whether she is'suing in tort to recover for alleged injuries sustained by her without reference to contract.

An examination of the declaration discloses that the plaintiff is endeavoring to recover for injuries resulting from the alleged negligent and unskilful treatment accorded her, without relying on any contract, other than the contract which the law implies and which obliges a physician to use reasonable care and skill in the treatment of patients without reference to any contract of hiring.

The declaration charges that on account of the unskilful and negligent conduct and treatment, the malady of the plaintiff was greatly increased and aggravated and she became crippled for life and permanently injured, and was hindered and prevented thereby from transacting her affairs and business and was also obliged to pay out large sums of money to other physicians and surgeons in endeavoring to be treated and cured for said injuries'.

Our Supreme Court, it seems, has not passed on this question, but we find a case very similar to this in the Appellate Court for the First District, being the case of McKee v. Allen, reported in 94 Appellate, page 147. Quoting from page 155 the court says: “This suit was begun May 15, 1898. But the summons then taken out was not put in the hands of the sheriff, nor was the declaration filed until January 9, 1899. The operation complained of was performed December 15, 1896, and it is contended that the alias summons, which was served on defendant, was not issued, nor was the declaration filed until a month and seven days after the bar of the statute had arisen. The argument is that the mere filing of the precipe and issue of a summons not placed in the hands of the sheriff ‘is not such a commencement of the action as to arrest the bar of the statute. ’

“If the suit was not begun until the second summons was issued and the declaration filed, then more than two years had elapsed since the cause of action arose.”

This case by implication holds that this character of case is barred, if not brought within two years of the time the cause of action accrues. We think, too, that it will be found upon investigation that actions for malpractice and cases of this character have always been held to fall within the personal injury class as far back as Blackstone.

In volume 3, at page 122, Blackstone’s Commentaries, among the class of injuries designated as injuries to the person, we find the following: “Injuries affecting a man’s health or where by an unwholesome practice of another a man sustains an apparent damage in his vigor or constitution as * * * by neglect or unskilled management of his physician, surgeon or apothecary.”

Section 15 of our statute on limitations nowhere provides anything with reference to cases of this character, unless it be held that they fall under the provision, “all other civil actions not otherwise provided for.” However, we are of the opinion that under the doctrine of ejusdem generis that that provision would be held to apply only to contracts of the character particularly enumerated in said section, to wit: “Contracts, expressed or implied, or on awards of arbitration, or for the recovery of damages done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof,” none of which said causes of action are in any wise similar to the action at bar.

On the other hand, we think that this action, being a tort action, easily falls under the head of actions for injury to the person as set forth in section 14, the sole basis of the recovery sought in this case being for injuries to the plaintiff caused by the alleged negligent conduct and treatment of the defendant, and for the damage that has accrued to her on account of money she had to expend in endeavoring to be healed of the injury which she claims resulted to her by reason of such negligent treatment.

If we are correct in this conclusion, the action of the lower court in overruling the demurrer and entering judgment was correct, and the judgment should be and is hereby affirmed.

Affirmed.

Mr. Justice McBride dissents.


author: Mr. Justice McBride

text:
    George W. Moyers, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Carriers, § 247

      —when burden of proof on carrier attempting to avoid common-law liability. In order to relieve a carrier of its common-law liability’'for injury to live stock, it has the burden of showing that the shipper accepted the written contract of shipment imposing limitations on its liability, knew the contents thereof, and assented to its terms.
    2. Action on the case, § 12

      —when evidence in controversion of matters embodied in special pleas admisible. Since under the plea of not guilty in an action on the case, the defendant may not only put the plaintiff upon proof of the whole charge contained in the declaration but may also give in evidence any matter in justification or excuse, evidence in controversion of such matters embodied in special pleas is admissible, though no replication by way of confession and avoidance thereof be filed.
    3. Appeal and error, § 1456

      —when no reversal for irregular introduction of evidence under improper pleadings. Mere irregularity in the introduction of evidence under improper pleadings will not work a reversal of a case where no injustice has been done.
    4. Appeal and error, § 420

      —when objection raised on appeal not considered. An objection raised for the first time on appeal that no replication was filed to special pleas on file in the court below will not be considered.
    5. Carriers, § 239

      —when cannot limit liability for negligence. A common carrier cannot limit its liability for negligence in the transportation of live stock.
    6. Appeal and error, § 1410

      —when finding of jury reversed. It being the province of the jury to determine what acts do or do not constitute negligence, a court of appeal will be slow to reverse their finding unless so manifestly against the evidence as to require it.
    7. Appeal and error, § 1258

      —when defendant cannot complain that damages are inadequate. The defendant cannot complain that a judgment was for too small an amount.
    Appeal from the Circuit Court of Pope county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    Charles Durfee, for appellant; Blewett Lee and W. W. Barr, of counsel.
    John W. Browning, for appellee.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

The appellee recovered a judgment against the appellant in the Circuit Court of Pope county for three hundred dollars, which appellant seeks to reverse. Appellee, of Golconda, Illinois, purchased of A. F. Hayes of Marissa, Illinois, a jack, and Hayes was to load the jack and cause it to he shipped to appellee, and on April 1, 1913, he loaded the animal into a car on appellant’s road at Marissa for transportation. The jack was carried to Carbondale on the 1st day of April .and from there to Beevesville, on the 2nd day of April, arriving there in the afternoon but owing to the excessive floods at this time traffic was suspended between this place and Golconda,- and no trains were operated from April 2nd to April 10th, and owing to the condition of the floods the agent of appellant at Beevesville unloaded the 'jack and cared for him until the waters had receded so that trains could be run. On April 10th traffic was again resumed, and the agent caused the jack to be loaded upon the car and in doing so he was assisted by a man by the name of Estes. They led the jack into the stock pens and from there led tiim up into the stock chute, which is used for loading animals out of the pens into the cars, and there tied bim with a rope of the size of one-half to one inch, and wrapped the rope around a post which is described as being sharp on the edge, and at this time the car had not been set so that the jack could pass from the chute into the car, and as they were switching the engine and cars about for the purpose of getting a car in place the jack in some way became frightened, broke the rope and jumped out of the chute at the end next to the track, which is up a distance of three or four feet from the g'round, and in doing so the animal was injured, so much so that it afterwards died. There was nothing placed across the end of the chute to keep the jack from jumping out. The only thing, as witness says, was the rope that he was tied with, and the two men who attempted to keep him back. It was after-wards caught, the car put in position at the chute and the jack was led from the chute into the car and shipped to Grolconda." It was noticed at the time the jack was unloaded from the car that he was lame, and he gradually grew worse and died on the 10th day of July, 1913. His knee was much enlarged and he was feverish and out of condition until he died. It was testified that the jack was worth four hundred dollars. Shortly after the jack*was received at Grolconda, the appellee made application to the agent to put in a bill for damages but the agent on being advised that the jack was not well told appellee to let that matter alone until after they should see whether the jack got better or not. It further appears from the evidence that A. F. Hayes, the man from whom appellee purchased the jack, at the time of loading him in one of the cars was given a contract to sign, which he at first declined to do, but upon being assured by the agent at Marissa that it would have to be signed by him he signed it; and it further appears that this contract was a part of the bill of lading and that it contained a contract purporting to "be between appellant and A. F. Hayes, shipper, stating that the jack was of the value of one hundred dollars and limiting the liability of appellant to one hundred dollars; also that no claim for loss or damage to the stock shall be valid against appellant, unless made in writing, verified by affidavit, and delivered to the agent within ten days from the time the stock was removed from the cars. Said contract also contained a clause providing, that the railroad company should not be liable for any injury, however caused, not resulting from gross negligence of the appellant. That it also contained a further clause that the car containing said jack was to be in charge of the shipper, or its agents while in transit and the shipper assumes the duty of loading and unloading said jack. It appears, however, from the evidence,' that when Hayes signed said contract the contents of it was not explained to him and he knew nothing about the matters specified therein.

The declaration of appellee consists of one count and alleges the receipt of the jack by the defendant, to be safely and securely carried from Marissa to Grolconda, and there be delivered to plaintiff, and that the defendant did not safely and securely deliver the same but on the contrary so carelessly and negligently behaved itself in the said premises that the said jack became and was injured by the defendant, and on account of said injury became wholly lost to the plaintiff. To this a plea of general issue was filed, and five special 'pleas. Each of said pleas setting up the contract above mentioned, and the first plea denied liability in a greater amount than one hundred dollars. The second denied liability because appellee had not presented a claim in writing verified by affidavit to appellant or its agents within ten days from the time the stock was removed from the car. The third and fourth special pleas deny liability because the appellant was not guilty of gross negligence in and about the shipment of the jack. The fifth special plea denies liability because it says that under the terms of said contract the appellant in reloading the jack at Reeves-ville was acting as the agent of appellee. To these special pleas no replication was filed. Upon the trial of the case objection was made to the testimony of the witness A. F. Hayes concerning the signing of the con-, tract above mentioned, and denying’ the knowledge of the contents or that the instrument was read over to him or he was in any manner informed of its contents. Also to the admission of the testimony of appellee wherein he states that he had attempted to make a claim for damages and spoke to the agent at Golconda about making the claim. It is contended by counsel for appellant that as the appellant had filed special pleas setting forth the specific matters in said pleas mentioned, respectively, and that as the appellee filed no replication thereto, or did not attempt by replication to confess and avoid these pleas, that the effect of it was simply to deny the matters set forth in the respective pleas, and that he had no right to introduce evidence showing' that he did not read or know the contents of the writing, and other similar matters, for the reason that there was no replication and no pleading under which such testimony was admissible. In the argument counsel for appellant states that this evidence should have been stricken from the record, “For the reason that the contract in question was admitted in evidence, without objection, in support of the special pleas of the defendant, and was conclusive .proof of all the matters alleged in said several special pleas, and the only issue upon said several pleas was a simple denial of the facts therein charged. Had the plaintiff filed a special replication to these pleas confessing and avoiding the same, and charged that the plaintiff would not be bound by the matters therein alleged, unless the attention of the shipper had been called thereto, and his' assent obtained, such evidence might have been proper, etc.”

It is also insisted by the appellant, that even if the law required the appellant to prove the execution of the contract and that the shipper assented to its provisions, that such proof could not be required in this case because there was no issue made by the pleadings by which that question could be tried, and appellant claims that one case is made by the pleadings and another by the evidence, and that this could not be done. The criticism upon appellee’s first, second, third and fourth instructions is along the same line and based upon the fact that no issue is made by the pleadings to support the third and fourth instructions, and no legal evidence introduced to support the second. All of these matters will be considered under the question made by appellant about the effect of the special pleas filed without replications thereto.

As we understand counsel for appellant, they do not deny that under the law the burden is upon appellant to show that the contract referred to as having been signed by the shipper was understood by the shipper, and we understand the law to be that the liability of the carrier can only be defeated by showing that the shipper who delivers his goods to the carrier for transportation and accepts a written contract of such shipment imposes the restrictions of knowing the contents of the contract and assents to its terms. The onus of proving this contract and such knowledge upon the part of the shipper, is upon the carrier. Wabash R. Co. v. Curtis, 134 Ill. App. 409; Wabash R. Co. v. Thomas, 222 Ill. 337.

It is first insisted by appellant that before it could present the defense that was offered that it was required that it should be specially pleaded and proven, and refers the court to the cases of Gunton v. Hughes, 181 Ill. 132, and Wall v. Chesapeake & O. R. Co., 200 Ill. 66; but an examination of these cases will show that the question there arose upon the question of the plea of the statute of limitations, which is in a class to itself and is not governed by the pleading in the class of cases now under consideration by the court. He also refers and quotes from Chitty, which says: “In actions upon the case the plea of not guilty shall operate as a denial only of the breach of duty or wrongful act alleged to have been committed by the defendant, and not of the facts stated in the inducement, and no other defense than such denial shall be admissible under that plea and all matters in confession and avoidance shall be plead specially as in actions of assumpsit.” The Supreme Court of this State in passing upon this proposition and quotation from Chitty, says: “The rule at common law is that under the plea of not guilty, in an action on the case, the defendant may not only put the plaintiff upon proof of the whole charge contained in the declaration, but may also give in evidence any justification or excuse. 1 Chitty’s Pleading (7th Am. from the 6th London Ed.) 527. The English rule, that ‘in actions on the case, the plea of not guilty shall operate as a denial only of the breach of duty or wrongful act alleged to have been committed by the defendant, and not of the facts stated in the inducement, ’ etc., was adopted by the judges at Hilary term, 4th William IV, * * * 1 Chitty’s Pleadings, 737, and has never been adopted by statute in this State.” City of Champaign v. McMurray, 76 Ill. 353. We are of the opinion that all of the matters set forth in the special pleas were admissible under the plea of not guilty; and being admissible under that plea there could be no error in permitting the appellee to make his explanation of and concerning those special matters. It is said by counsel for appellant that some action should have been taken upon these special pleas, which is true, and a demurrer to these pleas would probably have resulted in the court holding that they were unnecessary. The record discloses that under the pleadings as it existed, both appellant and appellee were permitted to introduce all of their testimony and that no complaint can be had for that reason, and the most that can be said with reference to the trial, under the pleadings as they were, is that it is a mere irregularity, and we do not believe that where it appears that no injustice has occurred by reason of a mere irregularity of pleading that such irregularity should work a reversal of a case.

We are further of the opinion that the appellant is in no position to complain about the admissibility of this testimony on account of the status of the pleadings, for the reason that the only specific objection made by counsel during the trial was, “On the ground that the matter is embodied in the special contract here in evidence,” and nothing was,said by counsel to the court about the want of a replication to these special pleas. No objection was made upon that ground during the trial and this objection is made for the first time in this court and we think it comes too late. The court’s attention should have been called to the fact that special pleas were on" file and no replication filed to them, and given an opportunity to pass upon the question, which was not done. This disposes of the question of the admissibility of evidence and the objections to appellee’s instruction.

Appellant also contends that this case should be reversed upon the evidence. The facts as set forth in the statement herein are substantially all of the facts introduced in evidence, and there is no dispute as to the facts, and we think it was a question for the jury to determine whether or not under such facts the jury were warranted in finding that appellant was guilty of such negligence in and about the shipping of this jack as to make it liable for the value thereof. It was the duty of appellant to safely deliver such property at the place to which it was consigned, and it had no power to limit its liability in this respect but was bound by statute so to do.

It is the province of the jury to determine what acts do and do not constitute negligence, and where they have found that the acts proven do constitute negligence, a court of appeal would be slow to reverse such decision, unless it was so manifestly against the evidence and law as to require a reversal on that account.

Another objection urged, that the verdict of the jury as to the amount of damages is not sustained by the evidence. The evidence shows the value- of the jack to be four hundred dollars, while the verdict is only three hundred dollars. We do not believe that appellant can complain or be heard to say that the judgment was for too small an amount. Becker v. People, 164 Ill. 267; Florsheim v. Dullaghan, 58 Ill. App. 593.

Objection is also made to the refusal of appellant’s refused instructions Nos. 11,12,13 and 15, but what we have heretofore said with reference to the admissibility of the evidence under the pleadings answers the criticisms made upon these refused instructions. We see no reason why the appellant’s refused instruction 14 might not have been given upon the proposition herein contained that the shipper, A. F. Hayes, should be regarded as the agent of the plaintiff and that the plaintiff should be bound by his acts. We think this proposition was fully covered by appellee’s instructions 2 and 4, where the jury are advised that it is sufficient if the shipper knew that the conditions were in the bill of lading, and then afterwards referring to him as the agent of the plaintiff; and the jury were plainly advised that it is sufficient to bind the plaintiff if the shipper had knowledge of the restrictions contained in the contract, and this is the important thing sought by refused instruction No. 14 to be impressed upon the minds of the jury. The instructions as given and read to the jury, when taken as a whole, seem to present the law fairly.

After a careful reading of this record and fully considering the questions presented for our determination, we are of the opinion that appellant had a fair trial, and find no error of. such importance as to require a reversal\of the case, and the judgment of the lower court is affirmed.

Judgment affirmed.