text:
    Marcella M. Rives by Lillie C. Rives, Appellee, v. The Hanover Fire Insurance Company, Appellant.
    1. Insurance, § 621

      —parol evidence. Parol evidence cannot be received in a court of law to vary or change the terms of a written contract for insurance, though a different rule may prevail in equity..
    2. Insurance, § 571

      —when declaration in action on fire policy demurrable. In an action at law to recover fire insurance where the declaration sets out the policy showing that the same was issued to plaintiff’s father, with an indorsement- thereon, “It is agreed and understood that the interest of insured is a life estate only,” there being no mention of plaintiff’s name .in the policy, held that the declaration is demurrable for the reason that parol evidence would be inadmissible to show that plaintiff’s interest as owner of the fee was understood to be included in insurance.
    Appeal from the Circuit Court of Greene county; the Hon. Owen P. Thompson, Judge, presiding.
    Heard in this court at the April term, 1913.
    Reversed and remanded with directions.
    Opinion filed October 16, 1913.
    Barger & Hicks, for appellant; C. O. Carlson, of counsel.
    Rainey & Jones, for appellee.

      See Illinois Notes Digest, Vols. XI to XV same topic und. section number.

   Mr. Justice Creighton

delivered the opinion of the court.

This is an action of assumpsit brought by the appellee, by next friend, against the appellant Company, in the Circuit Court of Greene county, to recover upon an insurance policy.

The declaration, in substance, is as follows: that on the 16th day of September, 1908, James W. Rives, then being the owner of a life estate in the real estate mentioned in the policy,, and desiring to insure the buildings thereon against loss or damage by fire for a period of three years from said date, to the end that he and the plaintiff, who was and is his infant child and was seized with an estate in fee simple in said real estate, subject to said life estate, should be reimbursed in case of loss or damage to the buildings thereon by fire, to the extent of their respective interests in said buildings, obtained from the appellant Company its policy of' insurance upon the two story dwelling house situated on said real estate; and that the appellant thereby promised, in the terms of the said policy and the conditions thereto annexed, a copy of which policy and conditions are attached to the declaration; that the policy is in the standard form nsed by the, appellant at that time and contains a provision that the entire policy, unless otherwise provided by agreement indorsed thereon or added thereto, should be void if the interest of the insured be other than unconditional and sole ownership; that said James W. Rives informed the defendant, .appellant, of the title of said James W. Rives and the appellee, and that the appellant at such time well knew that the interest of said James W. Rives and the appellee were the same as herein averred and as represented to appellant by said James W. Rives; that in order said policy might not be rendered void on account of its provisions hereinbefore set forth, and in order that said James W. Rives and the appellee might obtain the benefits of said insurance in case of loss or damage by fire, and in order to comply with the provisions requiring an agreement to be indorsed or added to said policy that the interest of the insured was other than unconditional and sole ownership, and to the end that said policy should not be void the following agreement was indorsed and added to said policy by the appellant, to wit: “It is agreed and understood that the interest of insured is a life estate only;” that at the time of making the policy and from thence to the time of the happening of the loss and damage hereinafter mentioned, the appellee had an interest in said policy to the amount of $1,600, by the appellant insured on said dwelling and additions; that said James W. Rives died on March 9, 1909, and that afterwards, on August 17, 1911, the said farm dwelling and additions were consumed and destroyed by fire, whereby the plaintiff then and there sustained loss and damage to the said property to the amount of $1,600, which said loss was not occasioned by any means excepted by the policy; that notice of loss was given the appellant and that appellant denied any liability, etc.

The policy of insurance is set out in haec verba and made a part of the declaration, and, so far as is here necessary to be considered, is as follows: “This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be endorsed hereon or added hereto, and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy except as by the terms of this policy may be the subject of agreement endorsed hereon or added hereto, and as to such provisions and conditions, no officer, agent, or other representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or other permission affecting the insurance under this policy exist or be claimed by the insured, unless so written or attached.”

A general demurrer was filed by appellant to the declaration. The court overruled the demurrer and appellant excepted to such ruling and elected to stand by its demurrer, and judgment was rendered in favor of appellee and against appellant in the sum of $1,600 and costs of suit. Exception was taken to this action of the court, and this appeal was thereupon perfected.

The chief question presented for our determination in this case is, whether or not parol evidence can be received to change or vary the terms of a written contract, in this, a court of law!

It is contended by appellant that the declaration, when taken as true, does not set out facts sufficient to show that there was an agreement by which the appellee, the owner of the fee title to the lands, was intended to be included in the policy. It contends that all averments relating to that subject are and were conclusions of the pleader.

Whether this be true or not, in our opinion does not enter into the legal question involved for our consideration. The only legal question here presented is, whether or not parol evidence can be received in a court of law to vary or change the terms of a written contract?

We do not think it can. In the case of Mercantile Ins. Co. v. Jaynes, 87 Ill. 199, it is said a court of law will not receive parol evidence to contradict or enlarge the terms of a written contract, but that the written instrument must be considered as furnishing the true agreement between the parties, and as furnishing better evidence than any which can be supplied by parol. But, in equity, such evidence is admissible to show the real intention of the parties. The same doctrine is announced in Commercial Mutual Acc. Co. v. Bates, 176 Ill. 194, in the following language: “Where a written application is required to be signed by the assured, and is so signed, and a policy of insurance is issued upon the application, as was the case here, the application and the policy constitute a written contract by and between the assured and the insurance company, and where a controversy arises in regard to what the contract is between the parties, that controversy must be determined by the application and the policy. * * * A contract of that character cannot rest partly in writing and partly in parol. It cannot be varied, explained or added to by parol evidence. ‘Parol evidence of what passed at the time of making a policy is not admissible to restrain the effect of the same. ’ ’ ’

A different rule may, and undoubtedly does, prevail in courts of equity, but not, in our State, in courts at law.

In the policy under consideration there is no reference to the appellee or his interest in the property. Neither are there words or language used in the policy that could be construed to mean that he, or anyone for him, had ever claimed an interest in the policy or had the property insured for his benefit.

For the reasons given above, the judgment herein is reversed, and the cause is remanded with directions to the trial court to sustain the demurrer filed to the declaration.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Creighton

license: Public Domain

text:
    Springfield Light, Heat and Power Company, Appellee, v. Philadelphia Casualty Company, Appellant.
    1. Indemnity, § 23

      —sufficiency of declaration in action on indemnity policy. In an action on an employer’s indemnity policy, declaration alleging that plaintiff, the employer, sustained loss by being required to pay a judgment recovered against him in an action for the death of an employe, and that the death of such employe was caused by a certain coal bunker, then being installed in plaintiff’s plant, falling upon him, held sufficient on general demurrer.
    2. Indemnity, § 23

      —when special pleas in action on indemnity policy demurrable. In an action on an employer’s indemnity policy to recover loss sustained by plaintiff on account of being compelled to pay for the death of an employe, a demurrer to defendant’s special pleas setting up that such employe was killed by the falling of coal hunkers then being installed in plaintiff’s plant, which bunkers were not repairs or renewals of bunkers theretofore existing in said plant, held properly sustained.
    Thompson, X, dissenting.
    3. Indemnity. § 8

      —indemnity policy construed. Where the employment specified in an indemnity policy is “manual classification of work operating and maintenance of electric plant and distributing system, including ordinary repairs and renewals, etc.,” the words “ordinary repairs and renewals” may be construed to allow employer to attach labor saving machinery to his plant to assist in getting coal to its furnaces.
    4. Indemnity, § 24

      —admissibility of evidence. In an action on an employer’s indemnity policy, evidence offered by defendant tending to the kind and character of coal bunkers being installed in plaintiff’s plant at the time of the accident to an employe, held properly refused.
    5. Indemnity, § 26

      —computation of interest. In an action on a policy of indemnity against loss under the Employer’s Liability Act, a judgment entered against the indemnity company allowing interest to be computed on the time intervening between the time verdict was returned and the judgment was entered against the employer in an action against him for the death of his employe, held error, but not reversible error, and the judgment was affirmed on condition of remittitur as to such amount.
    6. Interest, § 33

      —when attaches to judgments. Under R. S. c. 74, § 3, relating to interest, J. & A. ¶ 6692, interest cannot attach until the judgment is rendered.

      Appeal from the Circuit Court of Sangamon county; the Hon. James A. Ceeighton, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed after remittitur filed, otherwise reversed and remanded.
    Opinion filed October 16, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Graham & Graham, for appellant.
    Wilson, Warren & Child, for appellee.

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

   Mr. Justice Creighton

delivered the opinion of the court.

The appellee Company, which employed at the time a large force of men in the management and operation of its plant located in the city of Springfield, applied to the appellant Company and obtained a policy of indemnity against loss by reason of accident or death of certain men employed in said plant, by reason of the Employer’s Liability Act.

Subsequently suit was brought by the appellee to recover for alleged loss sustained under the said policy.

The declaration averred, in substance, that at the time of the issuance of the policy one George Whitehead, an employe, was in the class and one of the persons included in said indemnity policy, and that on the 9th day of December, 1909, while the said George Whitehead was so employed and while appellee was so operating said plant, a certain coal bunker, then being placed in the said plant and to become a part, of the heating apparatus of said plant, -fell over and against the said George Whitehead and instantly killed him; that notice was duly served upon the appellant Company of the accident and death of said deceased; that the administratrix of the estate of the said George Whitehead, deceased, commenced suit against appellee and recovered a judgment against appellee in the sum of $6,000 and costs of suit; that appellant was notified of the commencement of the said suit and appeared and defended it in the name of appellee ; that in consequence of said judgment appellee was required to pay to the administratrix of the estate of the said George Whitehead, deceased, the sum of $6,533, in satisfaction of said judgment, by reason whereof appellant became liable to pay to the appellee the said sum of money under and by virtue of said policy of indemnity so issued as aforesaid.

General demurrer was filed to the declaration, and same was, by the court, overruled.

Thereupon appellant filed a plea of the general issue and two special pleas.

The substance of the two special pleas was, to wit: That the deceased, George Whitehead, was killed by the falling of one of the coal bunkers which plaintiff was then installing on its plant, and that said bunkers were not repairs or renewals of the bunkers theretofore existing in said plant but were a new addition to said plant.

Demurrer was interposed to the said two special pleas, and same were sustained by the court, to which action by the court appellant excepted.

The cause was tried by the court and a jury, and a verdict was returned in favor of the appellee in the sum of $6,122. After overruling a motion for new trial, the court entered judgment in the sum of the verdict. Exception was taken by appellant, and this appeal perfected.

Appellant assigns as for error the action of the court in overruling the demurrer to the declaration.

We are inclined to the view the declaration was sufficient, and that the action of the court in overruling the demurrer was correct.

It is next complained that the court erred in sustaining the demurrers interposed to the two special pleas.

The question raised by these pleas is, whether the employment of the deceased at the time he met with his death was of the character and kind specified in said policy. The following clauses of the application and policy are relied upon by appellant:

‘ ‘ Manual classification of work operating and maintenance of electric plant and distributing system, including ordinary repairs and renewals, extension of lines in territory covered by present ordinance, and the making of service connections;’’ also, “The place or places where work is to be carried on, the kind of work at each such places, the number of employes and the estimated pay roll including over time and all allowances at each such place, are stated in schedule on opposite page. The operations carried on are those usual to the trade or kind described therein.” •

The record in this case shows that the deceased, at the time of his, injury and death, was what was called a “coal passer,”, his duties being to assist in getting the coal from the window, where it was unloaded from cars, to the furnaces, and he was so employed at that time.

We do not think it can be said to be a strained construction of the language above quoted, to say that the words “ordinary repairs and renewals” may be construed to allow appellee to attach labor saving machinery to the plant to assist in getting coal to its furnaces.

Even the language of the plea averring that appellee was in the act of making extensive additions to its plant, when describing the additions, the pleader says they were sheet iron coal bunkers, a coal bunker being a device used to assist the coal shovelers in keeping the furnaces provided with coal. This was really an improved method of handling the coal. It cannot be said it was an addition to the business. It was only a different method or mode of getting the coal to the furnaces.

Can it be said that a bunker, when used as the one in question, was “unusual to the trade” or business engaged in by appellee? If it was usual, or if it was a repair or an improvement upon the method of handling coal used in said furnaces, it could not reasonably be said it was an addition to the plant, and not' being an addition, the appellant conld not be relieved from liability by reason thereof.

We think the demurrers to the said pleas were properly sustained.

The further objection is urged by appellant, that the court excluded evidence offered in its behalf, tending to show the kind and character of the bunkers that were, at the time of the accident, being installed, to wit; that they were seven feet high, ten feet long and four feet wide, each weighing twelve hundred pounds.

Under our view of this case the evidence offered was not important to the decision of the issues involved, and was, therefore, properly refused.

It is further contended that the amount of the judgment was not warranted by the evidence introduced. After a careful examination of the evidence contained in this record, we find that the case of Cornelia Whitehead, administratrix of the estate of George Whitehead, deceased, v. Appellee, was tried in the Circuit Court of Sangamon county on the 7th day of May, 1910, and a verdict was then and there returned in favor of the plaintiff; that on July 19, 1910, the motion for new trial in said cause was overruled and judgment then and there entered in favor of the plaintiff and against the defendant, appellee here. In computing the amount of expense, costs and interest in the case at bar, the court permitted interest to be computed on the time intervening between May 7, 1910, and the rendition of the judgment.

We do not understand that interest can attach until judgment has been rendered. Section 3 of chapter 74, E. S. (J. & A. ¶ 6692) provides: “Judgments recovered before any court or magistrate shall draw interest at the rate of five per centum per annum from the date of the same until ■ satisfied. ” It was therefore error to include in the judgment the interest from May 7, 1910, to July 19, 1910, which amount is estimated to be $49.99. But this error is not necessarily reversible.

If the appellee shall remit the said amount from its judgment, the judgment will be aErmed in the sum of the remainder, otherwise the judgment will be reversed and the cause remanded.

Affirmed after remittitur filed; otherwise reversed and remanded.

Mr. Justice Thompson dissents on the ground that the demurrer should have been overruled to the second plea.


text:
    John Wilson, Appellee, v. Danville Collieries Coal Company, Appellant.
    1. Mines and minerals, § 108

      —duty to timber-man. The fact that the mine manager, who was a licensed mine examiner, informed a timber-man of the dangerous places in the mine and directed him to make them safe does not relieve the operator of mine from complying with the statute in making an examination of the roof of the mine, marking dangerous places and making entry thereof in a book.
    2. Damages, § 120

      —when not excessive for personal injuries. A verdict for four thousand five hundred dollars for injury to a timber-man in a mine, held not excessive where he was confined to his house for six weeks and was severely injured about the hips, abdomen and kidneys, and unable to perform manual labor.
    3. Mines and minerals, § 176

      —when evidence sufficient to shoio failure to malee inspection caused the injury. In an action by a. timber-man employed in a mine for injuries resulting from a fall of rock from roof of the mine, on account of failure of mine operator to comply with statute in inspecting the mine, evidence held sufficient to show that the rock which caused the injury was loose at the time inspection should have been made, and might have been discovered by a careful examination.
    Appeal from the Circuit Court of Vermilion county; the Hon. William B. Scholeield, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.
    Rehearing denied November 6, 1913.

      Certiorari granted by Supreme Court.

      Charles Troup, for appellant; Mastin & Sherlock, of counsel.
    Clark & Hutton and J. Ed Thomas, for appellee.

      See Illinois Motes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Creighton

delivered the opinion of the court.

This cause was before this court at the October term, 1911 (171 Ill. App. 65.) The opinion there filed contains a full statement of the pleadings and the facts, as they appeared in that record. The facts presented here for our consideration do not differ materially from the facts stated in the former opinion, and the pleadings are identical.

This cause was again tried before the court and a jury, and verdict was rendered in favor of appellee in the sum of four thousand five hundred dollars. Motions for new trial and in arrest of the judgment were' filed and overruled, and thereupon judgment was entered in the sum of the verdict. Exceptions were duly taken to the action of the court, and this appeal was prayed, granted and perfected, bringing the record before us.

Many of the errors assigned upon this record are formal, and it will not be necessary to give special attention to them in order to determine the rights of the parties hereto.

It is insisted by appellant that the fact that the mine manager, who was .also a licensed mine examiner, informed appellee of the dangerous places and directed him to make them safe, obviated the legal necessity of the mine inspector’s personal examination, marking such places as dangerous places, and recording same in a book to be kept for that purpose at the entry to the mine.

This same question was presented to this court on the former appeal, and in the opinion then filed, it was said: “It is insisted by defendant that plaintiff was at all times in the mine by and under the direction of the mine manager, who was also a licensed mine examiner, no separate examiner having been employed. No record of the condition of this mine was made or entered in the book required to be kept at the top of the mine on the 20th or 21st days of April, and there was no means of plaintiff deriving any information from this book on either of those days. Although plaintiff was employed as a timber man and it was his duty to make all dangerous places safe, and although he was working at the time of the injury under the direction of the mine manager and was not permitted to enter the mine except under the direction of the mine manager, it was, nevertheless, the duty of the defendant to comply with the other provisions of the statute which required it to ihake an examination of the roof of this mine and to mark thereon by a conspicuous mark all dangerous and unsafe conditions and to make entry thereof in the book at the top of the mine for the purpose of giving plaintiff and others who were working in the mine, information concerning such conditions.”

The proposition of law here involved is thus clearly announced, and disposes of the question so far as this court is concerned.

It is further urged by appellant, as a ground for the reversal of the judgment, that such judgment is excessive in amount.

In the former opinion rendered in this case, it was said: “The jury was warranted on the record in this case in finding that the defendant wilfully failed to comply with the provisions of the statute in that regard. Plaintiff was very severely injured and is unable to perform any manual labor and can only move around or get about by the use of crutches. He was confined to his house for six weeks or more, and was severely injured in and about the hips, abdomen and kidneys. The judgment rendered in this case is not excessive.”

The judgment from which this appeal is taken is for a smaller sum by five hundred dollars than the former judgment, and the condition of the appellee is substantially the same as then.

It is contended that the proof is not sufficient to show that the rock which caused the injury to appellee was loose and dangerous when he entered the mine.

The circumstances connected with this case lead us to conclude that the overhanging rock was loose at the time the inspection should have been made, and might have been discovered by a careful examination. Otherwise, it would not have been likely to have fallen in such a short time after appellee entered the mine. There was evidence and circumstances tending to prove the overhanging rock was lo.ose and dangerous when appellee entered the mine. There being facts and circumstances in proof tending to establish this fact, and it being a question of fact for the determination of the jury, we must conclude the jury were justified in their finding upon this question.

Under the view we here take as to the duty of the appellant to cause an examination of its mine to be made, and to mark the dangerous places, and record such dangerous places in the book to be kept at the top of the mine where the employes could inspect the same before allowing them to enter the mine, the instructions complained of are not subject to the objections urged against them.

• Finding no reversible error in this record, the judgment must be, and is, affirmed.

Affirmed.


text:
    Mike Polonious, Appellee, v. The National Bank of Benld, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    Negligence, § 19

      —when owner not liable for injury to child resulting from, leaving a radiator on sidewalk. In an action by a minor, fourteen years of age, to recover for personal injuries resulting from the fall of a radiator left standing on a sidewalk by defendant outside of its building, a verdict for plaintiff held not sustained by evidence sufficient to show that plaintiff was of such tender years as to render him incapable of knowing or realizing the danger arising from his act in pushing the radiator so that it fell upon him.
    Appeal from the Circuit Court of Macoupin county; the Hon. Jambs A. Creighton, Judge, presiding.
    Heard in this court at the April term, 1913.
    Reversed with finding of fact.
    Opinion filed October 16, 1913.
    Rehearing denied November 5, 1913.
    Statement of the Case.
    Action by Mike Polonious, a miner, who sues by his next friend, against The National Bank of Benld to recover damages sustained by plaintiff alleged to have resulted from the fall of a radiator which defendant left standing on the sidewalk outside of its building. Prom a judgment in favor of plaintiff for three thousand dollars defendant appeals.
    Edward C. Knotts and Peebles & Peebles, for appellant.
    Rinaker & Rinaker, for appellee.

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

   Mr. Justice Creighton

delivered the opinion of the court.


text:
    James Burbridge, Appellant, v. John A. Howard et al., Appellees.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Attachment, § 351

      —when action ties on attachment bond. Action lies on an attachment bond to recover at least nominal damages, where the attachment suit was dismissed at the plaintiff’s cost, the bond providing that if attachment plaintiffs shall prosecute their suit with effect or in case of failure therein to pay costs and such damages as shall be awarded against them in any suit thereafter brought for wrongfully suing out the attachment, then the bond shall be mill and void.
    2. Pleading, § 230

      —statute permitting amendments construed. Practice Act, ch. 110, § 39, J. & A. ¶ 8576, permitting amendments to be made on such terms as may be just and reasonable, does not permit the trial court in its discretion to deprive a party of a substantial right through defects or omissions in pleadings.
    Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.
    Heard in this court at the April term, 1913.
    Reversed and remanded.
    Opinion filed October 16, 1913.
    Statement of the Case.
    Action by James Burbridge against John A. Howard and others to recover on an attachment bond. From a judgment in favor of the defendants entered upon a directed verdict, plaintiff appeals.
    Williams & Williams and Buckingham & McDavid, for appellant.
    Baldwin & Carey, Whitley & Fitzgerald and J. L. McLaughlin, for appellee’s.

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

   Mr. Justice Creighton

delivered the opinion of the court.

3. Pleading, § 232 —discretion as to allowance of amendments. Though the power to grant leave to amend pleadings is within the discretion of the court, such discretion must in all cases he reasonably exercised.

4. Appeal and error, § 1362 —lohen refusal to permit amendment of declaration reversible error. In an action on an attachment bond, refusal of court to permit plaintiff to amend his declaration at the time of trial, held reversible error.


text:
    Mike Metas, Appellee, v. Peter Sanichas, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    • Compromise and settlement, § 4

      —authority to compromise suit. In an action to recover damages resulting from defendant compromising, without authority, a suit instituted by plaintiff against a third party and receipting for the money in the name of plaintiff, a verdict in favor of plaintiff held to be manifestly against the weight of the evidence, the defendant’s evidence showing that defendant was authorized to take care of the case and to apply the amount collected on an account due him from plaintiff.

      Appeal from the Circuit Court of Vermilion county; the Hon. William B. Scholeield, Judge, presiding.
    Heard in this court at the April term, 1913.
    Reversed with finding of fact.
    Opinion filed October 16, 1913.
    Statement of the Case.
    Action by Mike Metas against Peter Sanichas to recover damages alleged to have been occasioned by the defendant compromising, without authority, a certain suit instituted by plaintiff against a third party. From a judgment in favor of plaintiff, defendant appeals.
    Clark & Hutton, for appellant.
    Oliver D. Mann, for appellee.

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

   Mr. Justice Creighton

delivered the opinion of the court.


author: Mr. Justice Creightor

text:
    David F. Turney, Appellee, v. John W. Coventry, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Principal and agent, § 179

      —rights of third persons under a contract with an agent of an undisclosed principal. Where a third person who has entered into a contract with an agent in ignorance of the fact that he was not the real principal as he assumed to be is sued upon the contract by the real principal, he may avail himself, as against such principal, of every defense which existed in his favor against the agent at the time the principal first interposed and demanded performance of the contract to himself, and the rule is the same though a credit is sought to be made upon an old account with the agent.

      Appeal from the Circuit Court of Shelby county; the Hon. Jambs C. McBride, Judge, presiding.
    Heard in this court at the April term, 1913.
    Reversed with finding of fact.
    Opinion filed October 16, 1913.
    Statement of the Case.
    Action by David F. Turney against John W. Coventry to recover for coal furnished to defendant from plaintiff’s coal mine. Prom a judgment in favor of plaintiff for $113.26, defendant appeals.
    Tom Header and Richardson & Whitaker, for appellant.
    Steidley & Crockett, for appellee.

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

   Mr. Justice Creightor

delivered the opinion of the court.

2. Principal and agent, § 179 —when undisclosed principal not entitled to benefit of contract with agents. Where a third person contracted with former owners of a coal mine for coal to apply on an account owing to him from such owners, such owners being apparently in charge of the mine at the time and such third person having no knowledge that such former owners had leased the mine to another, held in an action by the lessee against such third person for the coal furnished that a judgment in favor of plaintiff was not sustained by the evidence, the evidence clearly showing that defendant had no notice of plaintiff’s interest in the mine, and that the former owners were apparently in charge thereof in the same capacity as they were previous to the lease.


text:
    Ada Nieukirk Taylor, Appellee, v. Peoria, Bloomington and Champaign Traction Company et al., Appellants.
    1. Damages, § 203

      —when instruction calling special attention to disfigurement of plaintiff erroneous. In an action for personal injuries, an instruction given for plaintiff calling special attention to the disfigurement of plaintiff in consequence as a basis for estimating damages, held erroneous.
    2. Damages, § 115

      —when verdict for personal injuries excessive. Verdict for four thousand dollars for personal injuries sustained by plaintiff by being thrown from her seat due to collision while a passenger in a street car, held excessive, it not appearing that the injury was dangerous or serious.
    Appeal from the Circuit Court of Tazewell county; the Hon. Theodore N. Green, Judge, presiding.
    Heard in this court at the April term, 1913.
    Reversed and remanded.
    Opinion filed October 16, 1913.

      Prettyman, Velde & Prettyman, for appellants; George W. Burton, of counsel.
    Jesse Black, Jr., and James P. St. Cerny, for appellee.

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

   Mr. Justice Creighton

delivered the opinion of the court.

This was an action of trespass on the case brought by the appellee against the appellants to recover damages because of personal injury complained of. The declaration contained two counts which were substantially the same, and avers that the Peoria Railway Company and the Peoria, Bloomington & Champaign Traction Company, appellants herein, were using the same track from Peoria and thence across the bridge over the Illinois river, and thence eastward for about one-fourth of a mile across Farm creek bridge, to a switch where a junction was formed, where the cars of the Railway Company turn to the right, up Washington street, while the cars of the Traction Company keep to the left; that on the 4th day of September, 1911, at the city of Peoria the appellee boarded the car of the Railway Company for the purpose of being conveyed to East Peoria; that when the car she was riding on reached the said junction a certain passenger car of the Traction Company approached the said junction on its way to Peoria; that the appellants then and there so negligently, carelessly and recklessly drove and managed their said cars that the car of the said Traction Company ran into the car of the Railway Company on which appellee was riding as a passenger, and because of said collision between the said cars, appellee was thrown from her seat with great force and violence and was cut, bruised, wounded and disfigured.

Each of the appellants filed the plea of the general issue.

The cause was tried by the court and a jury and a verdict was rendered against both appellants jointly, in the sum of four thousand dollars. After overruling motion for a new trial, the court entered judgment upon the verdict. Each of the appellants joined in perfecting this appeal.

It is assigned as ground of error that instruction number 12, given on behalf of the appellee, was erroneous and should not have been given. Said instruction is as follows:

* “You are further instructed that in determining the amount of damages the plaintiff is entitled to recover, if any, the jury have a right to, and should take into consideration all the facts and circumstances in evidence before them, the nature and extent of the plaintiff’s physical injuries, if any, concerning which there is any evidence in the ease, her suffering in body and mind, if any, resulting from such injuries, her physical disfigurement, if any is shown, resulting from such injuries, and also her prospective suffering and loss of health, if any, as the jury may believe from the evidence before them in this case the plaintiff has sustained or will sustain by reason of such injuries, and it will be proper for the jury to consider the effect of the injuries, if any, in the future upon the plaintiff and her ability to attend to her affairs generally in pursuing her ordinary occupation, if the evidence shows that it will be affected in the future, and all damages, if any, present and future, which from the evidence can be treated as the necessary and direct result of the injuries complained of.”

We are inclined to the opinion that this instruction is erroneous. It called special attention to the disfigurement of the appellee in consequence of the injury as a basis for estimating her damages. Instructions of this character have frequently been condemned. Chicago City Ry. Co. v. Schaefer, 121 Ill. App. 334.

In Lake Street El. R. Co. v. Gormley, 108 Ill. App. 59, it was said: “The marring of personal appearance and humiliation resulting from contemplation of bodily disfigurement are not elements entering into the computation of pecuniary damages for personal injuries.”

It is also insisted by appellant that the damages are excessive, and that, therefore, the judgment should be reversed. The injury complained of does not appear to be dangerous or serious. We are of the opinion the judgment, under all of the circumstances, is very excessive, but as the judgment is to be reversed for other reasons, we do not desire to discuss the evidence bearing upon the permanent character and extent of the injury.

For the reasons herein set forth, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Arthur G. Haines, Appellant, v. State Board of Agriculture, Appellee.
    1. Municipal corporations, § 948

      —liability for acts of officers and employes. Quasi corporations, such as counties, towns, school districts, hospitals and other institutions of like character, cannot be held responsible in damages for the negligence of their officers or employes, unless by statutory enactment.
    2. Agriculture, § ,3

      —when State Board of Agriculture not liable for personal injuries sustained by guest at State fair. In an action against the State Board of Agriculture to recover for injuries sustained by plaintiff on account of the collapse of certain bleachers at the State fair conducted by defendant, a general demurrer to the declaration held properly sustained, the defendant not being liable for the negligence of its officers and employes.
    3. Agriculture, § 3

      —Liability of State Board of Agriculture for negligence of officers and employes. State Board of Agriculture is one branch or arm of the State government, and though the statute creating it provides it may sue and be sued, it is not liable for the negligence of its officers and employes.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.

      Smith & Friedmeyer, for appellant.
    Sidney S. Breese and Seddon & Holland, for appellee.

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

   Mr. Justice Creighton

delivered the opinion of the court.

This was an action on the case brought by the appellant against the appellee, in the Circuit Court of Sangamon county, to recover for a personal injury alleged to have been sustained by the appellant through the collapse of certain bleachers at the State fair held in Springfield, in the year 1911, and which bleachers were alleged to have been negligently constructed.

The declaration alleges that the Illinois State Board of Agriculture is an association authorized by the laws of the State of Illinois to act in a corporate capacity for the purpose of holding an annual State fair at Springfield, and authorized to hold and acquire property and make improvements thereon, and arrange for exhibits at such State fair, and which was carried on by annual appropriations made by the legislature of the State, in addition to profits derived from the holding of said fair by way of admission fees and the sale of concessions; that the said Board of Agriculture held a State fair at Springfield from September 28 to October 7, 1911, and charged and collected admission fees of fifty cents for each person admitted, and was then and there, in its corporate capacity, in possession and control of the State fair grounds, and erected certain seats, commonly called bleachers, along and near the race tracks located upon said land, for the use and accommodation of the public; that the plaintiff, on the 4th day of October, 1911, attended the said fair, so held, as a visitor and paid an admission fee of fifty cents; that certain races were scheduled to take place on said tracks, and persons desirous of seeing the races were invited to take seats on said bleachers; that the plaintiff got upon said bleachers, together with a large number of other people, to watch the said races, not knowing the said bleachers were unsafe, and while in the exercise of reasonable care for his own safety, the section upon which he was seated suddenly fell to the ground and injured the back and spine of the plaintiff, etc.

A general demurrer was filed to the declaration, and was, by the court, sustained. Plaintiff elected to stand by the declaration, whereupon judgment was entered in favor of the defendant and against the plaintiff for the costs of the proceeding. Thereupon this appeal was prayed, granted and perfected, bringing the record before us for review.

Section 1 of the act of the legislature creating the Agricultural Department is, in part, as follows: There is hereby created and established a department in the State, to be known and styled the “Department of Agriculture,” the object of which shall be to promote agriculture, horticulture, manufacturing and domestic arts. The business of such department shall be conducted by a board, to be styled the “State Board of Agriculture. ’ ’

The second section of the act provides that said State Board of Agriculture shall have the sole control of the affairs of the Department of Agriculture of the State fairs, etc., and may make such by-laws and rules for the management of the department as shall be deemed necessary.

Section 4 of the act provides that whatever money shall from time to time be appropriated to the Department of Agriculture shall be paid to the State Board of Agriculture, and may be expended by them as in the opinion of said board will best advance the interests of agriculture, horticulture, manufactures and domestic arts in this State.

Section 8 provides for annual reports to the Governor of the transactions of the Department of Agriculture.

From the statute above referred to we may reasonably conclude that the Department of Agriculture was created and has been continued as a department of the government of the State, possessing certain powers granted by the legislature and owing certain duties, defined by the legislature, to the public at large, and particularly those branches of industry specified as agriculture, horticulture, manufacturing and domestic arts. These four branches are to receive special consideration, and any moneys remaining after the necessary expenses of administering the affairs of the department have been met must be devoted to the advancement of those four industries. Thus it will be seen there was no profit contemplated by the legislature of the State, to the State or to the officers of the department.

But it is contended by the appellant that the act creating the Department of Agriculture provides in terms that it may sue and be sued in any court of competent jurisdiction, and that hereby it places the department in the class of corporations organized for profit.

We conclude the legislature meant to grant the usual and ordinary power to transact the necessary business incidental to the administration of the department. It, in the course of administering the affairs of the department, has power to contract debts, and when contracted to enforce them in courts of competent jurisdiction, and if it failed to meet its obligations, it might be sued and recovery had, but this does not necessarily imply that it shall be held liable for the negligence of its officers and employes.

A county or a town may contract debts and may be sued in any court of competent jurisdiction, and yet the authorities are abundant holding that they are not liable for personal injuries by reason of the negligence of their employes.

The true rule controlling the question at issue in this case is clearly stated in the case of Kinnare v. City of Chicago, 171 Ill. 332, as follows: “It therefore appears the appellee board is a corporation or quasi corporation created, nolens volens, by the general law of the State to aid in the administration of the State government, and charged, as such, with duties purely governmental in character. It owns no property, has no private corporate interests, and derives no special benefits from its corporate acts. It is simply an agency of the State, having existence for the sole purpose of performing certain duties, deemed necessary to the maintenance of an ‘efficient system of free schools’ within the particular locality of its jurisdiction. The State acts in its sovereign capacity, and does not submit its action to the judgment of courts and is not liable for the torts or negligence of its agents, and a corporation created by the State as a mere agency for the more efficient exercise of governmental functions is likewise exempted from the obligation to respond in damages, as master, for negligent acts of its servants to the same extent as is the State itself, unless such liability is expressly provided by the statute creating such agency.”

In discussing this same subject, the same rule was clearly announced in the case of Elmore v. Drainage Commissioners, 135 Ill. 269, in the following language: “In regard to public involuntary quasi corporations the rule is otherwise, and there is no such implied liability imposed upon them. These latter—such as counties, townships, school districts, road districts, and other similar quasi corporations—exist under general laws of the State, which apportion its territory into local subdivisions, for the purposes of civil and governmental administration, and impose upon the people residing in said several subdivisions, precise and limited public duties, and clothe them with restricted corporate functions, co-extensive with the duties devolving upon them. In such organizations the duties, and their correlative powers, are assumed in invitum, and there is no responsibility to respond in damages, in a civil action, for neglect in the performance of duties, unless such action is given by statute.”

The doctrine announced in the above authorities is in perfect accord with the earlier decisions of our Supreme Court, with one exception, which is fully explained in later decisions. See also 15 Am. & Eng. Encyc. of Law, p. 1164, and 2 Dillon on Mun. Corp. p. 1193.

From the above cited authorities it is apparent that quasi corporations, such as counties, towns, school districts, hospitals and other such institutions of like character, cannot be held responsible in damages for the negligence of their officers or employes, unless by statutory enactment. They have long been held as involuntary organizations and as agencies of the State for the performance of duties for which they are organized.

In our view, the same principle of law will apply to the appellee, Department of Agriculture. It is not a corporation for profit or special benefit to any particular individuals. The Board of Agriculture, in theory of law, has no individual interest in the appropriations or profits of the department. They are simply the agents of the State, charged with the responsibility of administering the affairs of the Department of Agriculture.

While it is true they receive appropriations made for the benefit of the said department, and it is equally true that there is a sum of money arising from the admission fees and concessions at the annual State fair, yet these various sums are accounted for, and are used for the sole and only purpose of defraying the expenses of the Agricultural Department and advancing the interests of agriculture, horticulture, manufacturing and domestic arts. Every dollar received must be accounted for and reported to the Governor of the State.

This department, therefore, is one branch or arm of the State government. It was brought into existence "by the legislature of the State, it is supported by the provisions of the laws of the State, its servants and agents are but representing a department of the State ip. the discharge of their duties under the statute, and the State has power to abolish this department, while the Board of Agriculture has no power to either create or destroy. They can only serve the public in the way pointed out by statute.

Appellant has submitted a long list of authorities from sister States, which are not in accord with the view here announced, neither are they in accord with the holdings of our Supreme Court.

For the reasons above given the judgment appealed from is affirmed.

'Affirmed.


text:
    John Maxon, Appellee, v. George W. Farley, Appellant.
    (Not to be reported in full.)
    Appeal from the County Court of Logan county; the Hon. Charles J. Gehlbach, Judge, presiding.
    Heard in this court at the April term, 1913.
    Reversed and remanded with directions.
    Opinion filed October 16, 1913.
    Rehearing denied November 12, 1913.
    Statement of the Case.
    Action commenced by John Maxon against George W. Farley before a justice of the peace, where a trial was had and judgment rendered against the defendant for $82.85 and costs of suit. Defendant then perfected an appeal to the County Court. From an order of the County Court dismissing the appeal, defendant appeals.
    George H. Cox and Beach & Trapp, for appellant.
    McCormick & Murphy, for appellee.

      Abstract of the Decision.
    1. Justices of the peace, § 203

      —sufficiency of transcript to give court jurisdiction on appeal. In order to give a court to which an appeal is perfected jurisdiction of the subject-matter, the transcript from the justice must be in substantial compliance with the statute.
    2. Justices of the peace, § 203

      —when transcript on appeal from justice insufficient. Transcript does not comply with R. S. c. 79, § 15, J. & A. f 6976, so as to give County Court jurisdiction of subject-matter of an appeal from a justice, where there is no certificate or pretended certificate of the justice attached to or accompanying the transcript.
    3. Justices of the peace, § 209

      —jurisdiction to dismiss appeal. On appeal from a justice of the peace where no certificate of the justice is attached to or accompanying the transcript, the court to which such appeal is taken has no jurisdiction to dismiss the appeal for failure of appellant to comply with a rule to pay the docket fee, and for want of prosecution.
    4. Justices of the peace, § 162

      —jurisdiction on appeal when insufficient transcript filed. Where insufficient transcript is filed on appeal from a justice of the peace, the court to which the appeal is taken has no jurisdiction of the subject-matter, and is without power to make any order affecting the rights of the parties as to the merits of the cause. In such case the court would have power to order a perfect transcript to be filed, and enter any other order necessary to the preparation of the case for trial, but its power is limited to preliminary -orders.
    5. Justices of the peace, § 202

      —when appearance of appellant insufficient to confer jurisdiction on appeal in absence of sufficient transcript. Fact that appellant appeared in court and entered a motion to set aside an order of the court, held not to give the court jurisdiction of the subject-matter, where no sufficient transcript is on file.

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

   Mr. Justice Creighton

delivered the opinion of the court.


text:
    Kate Brown Wyzard, Administratrix, Appellee, v. Vivian Collieries Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Mines and minerals, § 74

      —proximate cause. In order to recover for the death of an employe in a mine alleged to have been caused by the wilful failure of defendant to comply with the Miners’ Act, the plaintiff must prove by a preponderance of the evidence that such failure was the proximate cause of the accident.
    2. Mines and minerals, § 185

      —when error to refuse to direct verdict for defendant in action for death of a switchman. In an action to recover for the death of plaintiff’s intestate while deceased was employed as a trapper and a switchman in defendant’s mine, the declaration alleging that death resulted from large quantities of gob on either side of the track, where deceased met with the accident, which created a dangerous condition and that defendant was guilty of negligence in failing to have said dangerous condition examined and marked, as the statute requires, held that court’s refusal to exclude all of plaintiff’s evidence and to direct a verdict for defendant was error, there being no evidence to prove that the place was made dangerous by the accumulation of gob or that the absence of gob at such place would have prevented the accident, nor any evidence in the record to show that deceased could not have secured his safety by stepping off the track.

      Appeal from the Circuit Court of Macoupin county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the April term, 1913.
    Reversed with finding of fact.
    Opinion filed October 16, 1913.
    Statement of the Case.
    Action by Kate Brown Wyzard, administratrix of the estate of George Brown, deceased, against Vivian Collieries Company to recover for the death of deceased by being run over by a motor car and a train of coal cars while he was working in defendant’s mine as a trapper and switchman. From a judgment in favor of plaintiff for two thousand five hundred dollars, defendant appeals.
    C. C. Terry and Rinaker & Rinaker, for appellant.
    Jesse Peebles and Hill & Burlington, for appellee.

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

   Mr. Justice Creighton

delivered the opinion of the court.


text:
    R. C. Cox et al., Trustees, Appellants, v. K. A. Flagg, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.
    Statement of the Case.
    Action by R. O. Cox and others, trustees of the American Lodge, I. O. O. F., 920, against K. A. Flagg, to recover thirty dollars claimed to be due to plaintiff from defendant for rents collected by plaintiff from subtenants of defendant. From a judgment in favor of plaintiff for ten dollars, plaintiff appeals.
    Robert H. Patton, for appellants.
    M. U. Woodruff, for appellee.

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

   Mr. Justice Creighton

delivered the opinion of the court.

Abstract of the Decision.

Set-off and recoupment, § 6 —when officer of a lodge entitled to set-off for amount paid for rent of huilding. Where an officer of a lodge leased a building and paid the rent as it became due, sometimes out of money belonging to the lodge and at other times out of his own money, in which case he had presented bills therefor which were approved and allowed, and such arrangement continued for some time without objection by the lodge, and later such officer leased the building from the owner in his own name, notifying the lodge that it could use the building as it always had and that he was to receive the same rent as formerly, held in an action against him by the lodge for certain money collected from subtenants that he was entitled to a set-off for the amount he had paid for rent from his own money, it appearing that he had acted in good faith in paying the rent and fully expected to be reimbursed as he previously had and that there was an implied obligation on the part of the lodge to give him credit for such amount for the reason that the lodge had received the use of the building and the services of the officer in like capacity for years without objection.


text:
    Joseph E. Helfrich, Appellee, v. John F. Scott, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Hancock county; the Hon. Harry M. Waggoner, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.
    Statement of the Case.
    Action by Joseph E. Helfrich against John F. Scott to recover upon a promissory note given by defendant to plaintiff. From a judgment in favor of plaintiff for $217.82, defendant appeals.
    Hartzell, Cavanagh & Babcock, for appellant.
    George V. Helfrich, for appellee.

      Abstract of the Decision.
    Gaming, § 18

      —when note given to take up check lost at gambling not given for gambling debt. In an action on a promissory note, a plea setting up that the note was given for a gambling debt held no defense, it appearing that the note was given to plaintiff by defendant after plaintiff had been requested to take up a check lost by defendant at gambling with a third person, and the amount of the note included the face value of check and a meat bill'owing. to plaintiff by defendant.

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

   Mr. Justice Creighton

delivered the opinion of the court.


text:
    L. A. Clingan, Appellee, v. Cleveland, Cincinnati, Chicago and St. Louis Railway Company, Appellant.
    1. Carriers, § 30

      —Carmack amendment to Interstate Commerce Act as affecting liability of carriers in interstate shipments. Under the Carmack Amendment to Interstate Commerce Act it became the duty of interstate carriers to fix, publish and file with the Interstate Commerce Commission all rates for interstate shipment, and it would seem that it was the manifest intention of congress to take possession of the subject of liability of a carrier under contracts of interstate shipments and to supersede all State regulations in reference to that subject.
    2. Carriers, § 158

      —contract limiting liability as affected by the Carmack Amendment to Interstate Commerce Act. Under the provisions of the Carmack Amendment of the Interstate Commerce Act the limited liability contract agreeing to a valuation of the property in transportation is valid, and the shipper is conclusively presumed to know the terms of the bill of lading and the published rate filed with the Interstate Commerce Commission.
    3. Carriers, § 239

      —when limitation of liability in contract for interstate shipment of live stock governs. In an action against a railroad company to recover for the loss of a race horse shipped over defendant’s road from a point in another State to a point in this State under a contract of shipment limiting defendant’s liability to one hundred dollars, held that a judgment in favor of plaintiff for one thousand two hundred dollars could not be sustained for such amount, and judgment was affirmed in the sum of one hundred dollars on condition of remittitur.
    4. Carriers, § 241

      —when indorsement on receipted freight hill extends time for filing claim for loss. Where a contract for shipment of live stock provides that notice of loss shall be filed with railroad’s claim agent within five days after removal of stock from the car, and was signed by the shipper’s agent, who could neither read nor write, and the shipper had no knowledge of such limitation until after he had received the property and paid the freight bill, held that an indorsement by the company’s agent on the receipted freight bill delivered to shipper, granting four months within which to file claim extended the time within which to file claim.
    5. Carriers, § 31

      —when extension of time for filing claim for loss not a violation of Interstate Commerce rules. The power of a railroad company to extend the time of presenting claim for loss by making an indorsement on a receipted freight bill delivered to shipper, held not a violation of the Interstate Commerce Commission rules and regulations.
    Appeal from the Circuit Court of Vermilion county; the Hon. Win liam B. Scholeield, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed if remittitur filed; otherwise reversed and remanded.
    Opinion filed October 16, 1913.
    George B. Gillespie, for appellant; R. J. Carey and Rearick & Meeks, of counsel.
    Clark & Hutton and William L. Cundiff, for appellee.

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

   Mr. Justice Creighton

delivered the opinion of the court.

This was an action brought by the appellee ag’ainst the appellant in the Circuit Court of Vermilion county, to recover for loss of a race horse shipped over appellant’s road from Indianapolis, Indiana, to Danville, Illinois.

1 This cause was before this court at a former term, where a full statement of the cause will be found (Clingan v. Cleveland C., C. & St. L. Ry. Co., 163 Ill. App. 568.)

The facts disclosed by this record are, in all substantial respects, the same as those stated in said former opinion, save and except the pleadings in this case are made to conform to the view of the court as announced in the opinion filed on the former appeal.

A trial was had before the court and a jury and verdict and judgment in the sum of one thousand two hundred dollars and costs were rendered, and the record is again before us for review by an appeal perfected by the appellant Company.

Since the rendition of the former opinion by this court, the Federal Courts have passed upon and construed what is known as the Carmack Amendment to the Interstate Commerce Act. Chicago & A. Ry. Co. v. Kirby, 225 U. S. 155; Chicago, St. P., M. & O. Ry. Co. v. Latta, 226 U. S. 519.

Under the said act it became the duty of interstate carriers to fix, publish and file with the Interstate Commerce Commission all rates for interstate shipments, and it would seem from the authorities above cited that it was the manifest intent of Congress to take pos-, session of the subject of liability of a carrier under contracts of interstate shipment, and to supersede all State regulations in reference to that subject; that under the provisions of the Federal law the limited liability contract agreeing to a valuation of the property in transportation is valid and that the shipper is conclusively presumed to know the terms of the bill of lading and the published rate filed with the Interstate Commerce Commission.

The contract in question, entered into between the appellee and appellant, provided for the shipment of one race horse from Indianapolis, Indiana, to Danville, Illinois, and limits the liability of appellant to one hundred dollars. It would seem, therefore, that recovery cannot be had, under this contract, for more than the liability stated therein.

A further objection is made to the judgment of the lower court that the terms of the contract provided that notice of loss should be filed with the claim agent of appellant at Cincinnati, Ohio, by the shipper within five days after the stock was removed from the car. This section of the contract reads as follows: “That no claim for damages which may accrue to the said shipper under this contract, shall be allowed or paid by the said carrier or sued for in any court by the shipper, unless a claim shall be made in writing, verified by an affidavit of the said shipper or his agent, and delivered to the freight claim agent of the said carrier at his office in the city of Cincinnati, Ohio, within five days from the time said stock is removed from said car or cars, and that if any loss or damage occur upon the line of a connecting carrier, then such carrier shall not be liable unless a claim shall be made in like manner and delivered in like time to some officer or agent of the carrier on whose line or lines the injury occurred. ’ ’

It further appeared from the evidence in this case that the contract of shipment was made and the bill of lading was signed by the mark of an agent of the appellee who could neither read or write, and that the appellee did not sign the contract, and had no knowledge of the provision as to the time of filing claim for loss or damage, until after he had received his property at Danville and paid the freight bill. The agent of the appellant who received the payment of the freight bill indorsed, at the foot of the receipt given to appellee, the following: “Claim for loss, damage or delay must be made in writing to the carrier at the point of delivery or at the point of origin, within four months after delivery of the property; or in case of failure to make delivery, then within four months after reasonable time for delivery has elapsed. Unless claims are so made the carrier shall not be liable.”

We are inclined to the opinion that the extension granted to appellee to file his claim for damage under the limitation attached to the bottom of the receipted freight bill and signed by appellant’s agent, granting four months time in which to so file, was binding upon appellant. This power to extend the time of presenting a claim for damage is not a violation of the Interstate Commerce Commission rules and regulations, and, therefore, we conclude that appellant is bound by said extension.

From the record we find the freight receipt was signed September 13, 1909, and that a demand was filed with the agent of the appellant at Danville, Illinois, for damages to his horse, on the 20th day of September, 1909, and that this suit was begun long before the expiration of the four months period. We think the demand was sufficient and that appellee has a right of recovery under the contract, in the sum.of one hundred dollars. The circumstances under which the property was injured and the evidence as to-the value of the property was abundant to warrant the court in rendering judgment for a much larger sum, aside from the liability limitation clause in the contract.

The judgment will be affirmed in the sum of one hundred dollars at the cost of appellee on condition the appellee will remit his judgment to that sum within ten days, otherwise the judgment will be reversed and the cause remanded.

Affirmed if remittitur filed; otherwise reversed and remanded.


text:
    Clarence Swango, Appellee, v. Cleveland, Cincinnati, Chicago and St. Louis Railway Company, Appellant.
    (Not to he reported in full.)
    Abstract of the Decision.
    Rah.roads, § 874

      —when evidence insufficient to show a defective gate at farm crossing. In an action against a railroad company for damages occasioned by the killing of plaintiff’s stock alleged to have escaped upon defendant’s right of way by reason of a defective gate constructed by defendant at a farm crossing, evidence held insufficient to sustain a verdict for plaintiff, it appearing that the gate was open when the stock escaped, that the gate was of the usual pattern of sliding gates, made of good material and of sufficient height, and that the only objection to the gate was that it was lower at the “hinge” end than the other so that it could easily slide back and might be opened on account of wind or by horses rubbing against it, there being no evidence to show that the gate was thus opened but there was evidence to show that it had not been thus opened for a period of five years.

      Appeal from the Circuit Court of Edgar county; the Hon. E. R. E. Kimbrough, Judge, presiding.
    Heard in this court at the April term, 1913.
    Reversed with finding of fact.
    Opinion filed October 16, 1913.
    Statement of the Case.
    Action by Clarence Swango against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company to recover damages for the injury to plaintiff’s horses which had escaped through a gate at a farm crossing upon defendant’s right of way and were struck by defendant’s locomotive and train. From a judgment in favor of plaintiff for six hundred and ninety dollars, defendant appeals.
    George B. Gillespie, for appellant; R. J. Carey, Shepherd & Trogdon and Gillespie & Fitzgerald, of counsel.
    F. E. Shopp, for appellee; F. C. Van Sellar, of counsel.

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

   Mr. Justice Creighton

delivered the opinion of the court.


author: Mr. Presiding Justice Philbrick

text:
    Fannie Coulter, Administratrix, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Railroads, § 641

      —when liable for death of street car conductor resulting from, backing trains at crossing. In an action against a railroad company to recover damages for the death of a street car conductor at a railroad crossing caused by a street car being struck by an approaching train of cars being switched by defendant while the conductor had gone upon the railroad, tracks to flag the crossing, the declaration alleging that defendant was negligent in backing a string of cars without lights on the hindmost car, in not providing s-uch car with sufficient brakes in the care of a brakeman and in backing such train at a dangerous rate of speed, held that a verdict in favor of plaintiff would be sustained upon remittitur.
    2. Railroads, § 752

      —when due care on part of street car cortr ductor in leaving street car to flag railroad crossing question for jury. In an action against a railroad company for the death of a street car conductor caused by a street car being, struck by an approaching train of cars being switched by defendant at a railroad crossing, when street car conductor had gone upon the tracks to flag the crossing, held that the question of due care upon the part of the conductor was a question for the jury.
    3. Death, § 71

      —when due care on the part of deceased becomes a question of law. In an action for death, the question of due care on the part of the deceased becomes a question of law only where there is no conflict in the evidence, and the evidence is such that the minds of all reasonable men must arrive at but one conclusion.
    ' 4. Railroads, § 651

      —when failure of street car conductor to discover approaching train at railroad crossing not negligencd

      per se. Failure of street car conductor to discover the approach of a string of railroad cars at a railroad crossing, when he goes upon the railroad tracks to flag the crossing in compliance with the rules of the street car company and a city ordinance, held not contributory negligence per se.

    5. Death, § 67

      —when recovery for death excessive. Verdict, for ten thousand dollars for death of a street railway conductor held excessive, and judgment affirmed on condition of remittitur of three thousand dollars.
    Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed on remittitur; otherwise reversed and remanded.
    Opinion filed October 16, 1913.

      Certiorari granted by Supreme Court.
    Hugh Crea and Hugh W. Housum, for appellant; John Q. Drennan, of counsel.
    Whitley & Fitzgerald and J. L. McLaughlin, for appellee.

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

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

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

Plaintiff’s intestate was in the employ of the Decatur Railway and Light Company as a conductor. The defendant owned and operated a line of railway into and through the city of Decatur, with five tracks running north and south across Wood street, and one track extending south from Wood street, these tracks are designated as number one, two, three, four, five and six, numbering from the west. The width of the right of way of defendant at Wood street is two hundred feet. Commencing in Wood street was a spur leading north, off from the west side of track number two, to the Decatur Gras Light and Railway Company’s gas plant. Track number six, or the east track, was the northbound main, track number five was the southbound main, the other tracks, two, three and four, which crossed Wood street were used for switching and other purposes. Broadway street intersected Wood street in a northeasterly direction at a point a short distance east of where the tracks of the defendant Company crossed Wood street.

On the evening of November 4, 1910, at about eight o’clock, plaintiff’s intestate had charge of a street car running west on Wood street. This car arrived at the crossing of the defendant Company, was stopped a short distance east of track number six. There was an electric arc lamp at the intersection of Wood street, Broadway and the defendant’s tracks; this lamp was suspended above the streets, but the evidence is conflicting as to whether it was burning at the 'time of this accident. There were no buildings located on the west side of Broadway; there was nothing to obstruct the view of defendant’s tracks south of Wood street from a point about eighty-five feet east of the east rail of track number six. There was a switch connecting track number three with track number five crossing track number four.

On approaching this railroad crossing when the street car stopped, the deceased conductor alighted and went ahead of the car upon the tracks of the defendant Company for the purpose of ascertaining whether it was safe for the car to proceed; he went as far as track number three, and while either between tracks three and four or between the rails of track four, the record does not disclose just where, he hallooed and motioned to the motorman upon the street car lo cross the tracks, indicating that the way was clear. The motorman proceeded with the car in accordance with the directions given him by plaintiff’s intestate who was in the meantime standing either between tracks three and four or between the rails of track number four, awaiting the coming of the street car; as the street car approached track number four, the motorman discovered a string of cars on track number three being pushed across Wood street it was then too late to stop the street car and avoid a collision, and the motorman threw on all his power in the hope of crossing ahead of the approaching cars. The string of cars hit the street car about the third window from its front end; the street car contained five passengers, the impact threw it from the track and pushed it north from twenty-five to thirty feet, it fell upon its side, caught plaintiff’s intestate under it and injured him so that he died in a short time; the passengers in the car were not injured. The string of cars, the front one of which hit the street car, consisted of sixteen coal cars being pushed by an engine on track number five. This cut of cars extended from track number five, on which the engine was, across track number four, to and upon track number three, the car that hit the street car was on track number three.

On the east side of Broadway, at the corner of Broadway and Wood street, was a saloon, the next room south of that was a barber shop, next to that was a cigar factory. The south line of Wood street and the east line of the right of way of the defendant Company intersected at the corner of Broadway and Wood streets.

On the west side of the Illinois Central tracks, on the north side of Wood street, about one hundred feet from the place of the accident, was located a gas house where a gas light was burning, and about twenty feet north of Wood street just west of track number one was a retort house where a 16-candle power electric light was burning.

The engine which was pushing the string of sixteen cars had a headlight both upon the front and rear of the engine; this headlight could be seen from Wood street over the tops of the string of cars, there being no cars in the string except coal cars. There was no man and no light upon the front car which hit the street car.

Track number two was located twenty feet west of track number three. From the west rail of track number three to the line of the right of way on the east side is about one hundred and thirty feet; after the street car reached the right of way on the east it would travel one hundred and thirty feet before reaching track number three. Track number one is twenty feet west of track number two, it is eighty-four feet from the east line of the right of way to the east rail of track number six.

It was about thirty feet from the south rail of the street car track crossing the railroad to the south line of the sidewalk on the south side of Wood street. There was a cut of four or five cars standing on track number four south of Wood street. The string of sixteen cars which were attached to the engine on track number five crossed track four with its foremost car on track number three, was in charge of a switching crew composed of a fireman, engineer and three brakemen. One of the men in charge of this string of cars was located near the sidewalk on the south side of Wood street; he had a lantern and was directing the movement of these cars by signals which were communicated from him by another of the crew located about half way between Wood street and the engine, and then to another member of the crew located near the engine and by him to the engineer. On account of the cars on track number four south of Wood street the brakeman nearest Wood street could not see the street car after it stopped east of the tracks, until it passed track four. There is no evidence in the record that plaintiff’s intestate proceeded farther west than track number three in his attempt to ascertain whether the tracks were clear. He did not cross all of the tracks, but while on track four or between tracks three and four, signaled the motorman to cross, he remained standing at this point and awaited the "approach of the car. The night was dark, misty and foggy.

The declaration contains various counts charging that the defendant negligently backed the string of cars over and across Wood street without having and maintaining a light on the front end of the car; also without having a man stationed on that car; that no bell of the weight required by the statute was rung or whistle blown on approaching this crossing; that an ordinance of the city of Decatur required that a headlight should be carried upon the front car; that the train was backed at a high and dangerous rate of speed; that the string of cars so being backed upon the tracks of the defendant was not then provided with a sufficient brake attached to the rear or hindmost car. in care of a trusted and skilful brakeman; that the brakes were not operated from the locomotive by power applied there.

Plaintiff recovered a judgment for ten thousand dollars.

Defendant insists upon a reversal of the judgment, and insists that plaintiff was not in the exercise of due care for his own safety; that the failure to observe the approach of the cars from the south was such an act of contributory negligence as will defeat a recovery ; that the street car company by which plaintiff’s intestate was employed had a rule which required him to observe in flagging this crossing; that he failed to comply with this rule; that in permitting the car to proceed at the time it did he violated an ordinance of the city of Decatur, and that this was negligence per se; that the court erred in the admission and rejection of evidence; that the court erred in the giving and refusing of instructions; and that the judgment is excessive.

The question of due care is one of fact which must ordinarily be determined by the jury from all the evidence and circumstances in the case; the court submitted to the jury all the evidence tending to prove or disprove the question of due care and the jury had before it all of the circumstances leading up to and the surrounding condition which brought about this accident, the manner in which plaintiff’s intestate went upon the tracks for the purpose of flagging the crossing and all the detail of his actions from the time he left the street car standing on the east side of the tracks up to and including the time when the car was hit by the string of cars on defendant’s road, pushed by defendant and until plaintiff’s intestate was taken from the track, as well as all the conditions surrounding the hacking of the string of cars by defendant, and upon this question of due care the jury has found against the contention of the defendant; but it is insisted by the defendant that there is no material conflict in his evidence and that where such is the case it becomes a question of law for the court and not one of fact for the jury. This rule of law is applicable only where there is no conflict in the evidence, and the evidence is such that the minds of all reasonable men must arrive at but one conclusion; and from a review of the evidence, we are not able to say that the minds of all reasonable men must arrive at the same conclusions from these facts, nor are we able to say that the jury was not warranted in arriving at the conclusion which it did upon this question.

Appellant further contends that it was an absolute requirement on the part of plaintiff’s intestate that he discover the approach of these cars before permitting the street car to pass, and that the failure so to do constituted contributory negligence, this was also a question of fact for the jury. The defendant bases its contention upon a rule of the street car company for which plaintiff’s intestate was working, and also an ordinance of the city of Decatur, both of which required him to so ascertain; while it will be conceded a failure to have obeyed this rule would be such negligence as would create a liability against "the company for which plaintiff’s intestate was working in favor of passengers carried by it, but so far as the rule related to the defendant Company and his duty in flagging this crossing, he was only required to use ordinary care, and he must be considered as any other traveler of the public highway, and the fact that he had in his charge the lives and persons of passengers upon the car of the company for which he worked created no greater obligation for his own protection so far as this defendant is concerned.

The rule of the street car company which it is contended plaintiff’s intestate violated is as follows:

“Steam railway crossings. Except at crossings provided with interlocking towers and at such track crossings as may be by bulletin excluded before steam railway tracks motormen must bring car to a full stop not nearer than 25 feet from the steam track. The motorman must not proceed with his car until the conductor has gone ahead on to the steam railway tracks and looked both ways and given him the signal to start. Before starting the motorman will look back and see that no one is getting on or off the car. After the car has crossed the railroad tracks the conductor will get on the rear platform of the car and give the motorman the signal to go ahead. If the motorman does not receive the signal to go ahead he will immediately bring his car to a full stop after passing the railroad tracks. All steam railroad crossings must be flagged.”

The ordinance of the city of Decatur which it is insisted was violated is as follows:

“At all railway crossings where watchmen are not located or other sufficient and proper signals operated to designate the approach of trains or cars, all cars used by said company shall stop at least 10 feet before passing over the railway crossing, and the person or persons in charge of said car shall go upon said railway crossing and ascertain that no train or car is approaching and that there is no visible danger in running said car over said railway crossing.”

We have been cited to no authority in this State determining this question of want of due care raised by reason of the failure of deceased to ascertain that no car was approaching, but we find upon examination of the various authorities submitted from other States, and which seem to be of equal weight, that the authorities are in conflict, part of them holding that a violation of a rule of this character is such negligence as will defeat a recovery, others holding that the duty imposed upon plaintiff’s intestate by this rule created no additional duty to the defendant railroad company. The Court of Appeals of the State of Texas, in Texas Traction Co. v. Bogue, 139 S. W. 1042, and the same court in the case of Clark v. St. Joseph Terminal Ry. Co., 148 S. W. 473, sustained the contention of appellant ; and the contrary doctrine has been adopted by the courts of Iowa in Grace v. Minneapolis & St. L. R. Co., 153 Iowa, 418, and numerous other cases; and we are rather inclined to hold that the rule did not create an imperative duty on deceased, that a violation of the rule as between the deceased and the defendant railway Company was not negligence per se.

But the question of the failure to ascertain that no car was approaching as required by the ordinance of the city of Decatur presents a more difficult question. "While it is true that where a railroad company violates an ordinance and any person is injured by reason thereof that is held to be prima facie proof of the negligence of the railroad company, and proof of the violation of an ordinance alone creates a presumption of negligence, this presumption is not conclusive but may he rebutted by a showing that the violation of the ordinance was not the proximate cause of the injury, or upon showing that the injury was produced by reason of other causes. While this ordinance required plaintiff’s intestate to proceed upon the tracks and ascertain whether or not any cars were approaching, the evidence shows an attempt to comply with the ordinance, we are not inclined to hold that a failure to positively ascertain this fact is such negligence per se as will defeat a recovery, but that where it is shown that plaintiff’s intestate went upon the tracks for the purpose of ascertaining the approach of trains, the fact that he did not positively discover its approach, the question whether by failing to actually discover the cars he violated the ordinance was a question of fact, is for the determination of the jury and not one of law for the court.

We do not find that' the trial court committed any serious error on the question of receiving or the rejection of evidence.

Defendant complains of the giving of instruction number eleven on behalf of plaintiff. While this instruction is subject to criticism and while it would have been better had it not been given, we are not inclined to hold that the giving of it was reversible error. We do not find the other instructions subject to the criticisms made, and after a careful consideration thereof, we are satisfied that the jury was fairly well instructed concerning the law applicable to this case, and that there is no reversible error in the giving or refusing of any of the instructions.

It is insisted by defendant that the judgment is excessive and should be reversed. While the judgment is large, we are not inclined to hold that it is so excessive as to require the judgment to be reversed upon that ground alone.

If the plaintiff will remit from this judgment the sum of three thousand dollars, within ten days after the filing of this opinion, upon such remittitur being made the judgment will be affirmed, otherwise the judgment will be reversed and the cause remanded.

Judgment affirmed upon remittitur; otherwise reversed and remanded.