text:
    Robert D. Lay, Appellee, v. Gustave Myers and Pauline A. Myers, on Appeal of Pauline A. Myers, Appellant.
    Gen. No. 17,437.
    1. Creditor’s suit—when rights in mere ohoses in action are subject to. A mere contingent right in real property, chattels or choses in action, depending upon an -uncertain condition precedent, is not subject to a creditor’s bill; but a vested right or estate that is salable may be subjected to the creditor’s debts when assigned in fraud of creditors, although it be a right in a mere chose in action depending upon a .condition subsequent that may end or forfeit the right.
    2. Creditor’s suit—interest of insurance agent in renewal commissions is a debt of company to him. The interest of an insurance agent in an uncollected renewal premium, which the insurance company has undertaken to pay him on collection, is a debt of the company to him, and not merely a debt due the company.
    3. Creditor’s suit—creditor’s bill will lie to reach renewal commissions fraudulently conveyed. A creditor’s bill will lie to reach renewal commissions, payable by an insurance company to its agent as premiums whereon they are based are collected by the company, where the agent conveys the same in fraud of his creditors.
    4. Creditor’s suit—evidence held sufficient to show fraud and absence of consideration. On a suit to set aside a sale and assignments of renewal commissions by an insurance agent to his wife and for the appointment of a receiver, evidence held to warrant conclusion of court that the sale was not for a valid consideration and was made with intent to defeat the complainant in his attempt to collect his judgment.
    5. Fraudulent conveyances—gifts of money by husband to wife. A gift made by a man to his wife before a cause of action accrues against him, if made for the purpose of defeating subsequent creditors, will be considered fraudulent as to such creditors.
    6. Supplementary proceedings—not bar to creditor’s suit. Supplementary proceedings by citation, pending in municipal court, will not abate or bar a creditor’s suit to set aside a conveyance by the judgment debtor to a third person on the ground of fraud.
    Appeal from the Circuit Court of Cook county; on the Hon. Adelor J. Petit, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed June 30, 1913.
    Leon Hornstein, for appellants.
    L. A. Stebbins, for appellee; E. D. Brothers, of counsel.
   Mr. Presiding Justice Duncan

delivered the opinion

of the court.

A decree was entered in this case on a creditor’s bill in favor of Robert D. Lay, appellee, and against Gustave Myers and Pauline A. Myers, appellants, and the five insurance companies hereinafter named, that the sale and assignment of the renewal commissions by Gustave Myers to Pauline A. Myers, his wife, dated January 15, 1908, be set aside and declared null and void as fraudulent; that O. H. Rookhold be and is appointed receiver for said renewal commissions due and to become due on the contracts of said insurance companies with said Gustave Myers; and that the receiver with said proceeds pay the costs of this suit, the judgment at law of appellee against appellant, Gustave Myers, in the sum of $1,043.35, including costs, and that he bring the remainder into Court, if any, to abide the further order thereof.

The undisputed facts are these: Appellee began a suit for libel, published in October, 1907, against appellant, Gustave Myers, in the Municipal Court, January 8, 1908, and recovered said judgment at law March 31, 1908. An execution was issued on said judgment and returned wholly unsatisfied, whereupon said creditor’s bill was filed to set aside said sale of Gustave Myers to his wife as fraudulent and void as to his creditors. Appellant, Gustave Myers, is a life insurance agent and the renewal commissions due or to become due to him and which by his said contract he sold and assigned to his- wife, Pauline A. Myers, were provided for under contracts with him by said insurance companies, to wit: with Pacific Mutual Life Insurance Company of California, dated February 11, 1907; with Mutual Life Insurance Company of New York, dated February 23, 1907; with A. S. Bennie for Illinois Life Insurance Company, dated January 19, 1907; with J. L. Ferguson for the Prudential Insurance Company, dated February 25, 1907; and with F. L. Morrell for the Manhattan Life Insurance Company of New York, dated January 24, 1905. The contracts of Gustave Myers with the insurance companies were all similar as to the renewal commissions. His contracts with them provided that he should receive in cash commissions on the first year premiums collected by-him on policies secured by his own efforts about twenty per cent, to seventy per cent, thereof, the size of the commission depending on the character of insurance, and these sums again varying with different companies. In addition to said commissions Myers was to receive from every one of said insurance companies commissions on certain renewals or subsequent cash premiums paid by the assured to the companies amounting from two and one-half to five per cent, of every such renewal, the commission depending upon the character of the insurance and it also varying with different companies. These renewals were limited by some of the companies to the first nine renewals, while in others it was limited to the first eight renewals and all of said commissions were to be collected by "the companies and paid to Myers or to his representatives in case of his death. The interest sold in said renewal commissions by Myers to his wife was all his interest therein from and after June 1, 1908.

The first proposition that is urged as a ground for a reversal of the decree is that a creditor’s bill will not lie to recover commissions depending on a contingency, as did Myers’ commissions on the renewals in question. In the absence of statutory authority the courts of this country are in conflict as to whether choses in action of a debtor can be subjected in equity to the payment of his debts. Our Supreme Court has decided that question in favor of the creditors. Hitt v. Ormsbee, 14 Ill. 233.

It has also been held that a contingent remainder cannot be sold for the benefit of the creditors of a possible remainder-man, for the obvious reason that no one could know at the sale of such an interest whether or not any vested interest could ever come to the purchaser thereof. It is evident that it would be to the interest of both debtor and creditor to await the happening of the contingency that would vest an estate in the remainder-man, and that any other course would be ruinous to both. It is evident, too, that no lien could attach to property not yet in being, and which might never be. Howbert v. Cawthorn, 100 Va. 649.

It has also been decided that a debt due a debtor of the debtor cannot be reached at law or in equity by garnishment or attachment. Jones v. Huntington, 9 Mo. 249; Wolf v. Tappan S Co., 35 Ky. (5 Dana) 361; Drake on Attachment, see. 454; Illinois Cent. R. Co. v. Weaver, 54 Ill. 319.

Mere possibilities of a right are not subject to creditor’s bills; Browning v. Bettis & Garrow, 8 Paige (N. Y.) 568; Smith v. Kearney, 2 Barb. Ch. (N. Y.) 533.

The weight of authority in this country is to the effect that the interest of a debtor in a life insurance policy may be reached by a creditor’s bill, whether such interest arises by the terms of the policy or by reason of premiums paid in fraud of creditors. Fearn v. Ward, 80 Ala. 555; 12 Cyc. 29, and also pages 28 to 31 inclusive upon all the foregoing propositions.

Under an ordinary life policy an interest vests iu the person for whose benefit it is taken out, when it is delivered, subject to be divested or forfeited on nonpayment of the premium, as the policy may prescribe. Drake v. Stone, 58 Ala. 133.

From the foregoing citations we conclude that the law of this state is to the effect that no mere possibility of a right is subject to a creditor’s bill, whether that right be in reference to chattels, real property or choses in action, that is to say, a mere contingent right depending upon an uncertain condition precedent. If the property right, however, is a vested right or estate that has value and is salable, a creditor’s bill will lie to have it subjected to the creditor's debts when assigned in fraud of creditors, although it may be a right in a mere chose in action depending upon a condition subsequent that may end or forfeit the right, and upon which nothing is due on the filing of the bill. The interest of Gustave Myers in the renewals in question was an assignable chose in action. It was proved by appellants that Myers had sold $300,000 or more of insurance for said companies in which he was to receive commissions on renewals and upon which he had collected first premiums and commissions on first renewals, and that his anticipated commissions in the future renewals amounted to about $400 annually ; that these commissions were worth in cash money on the day of the trial $900 or more, and that his wife contracted to pay him therefor $1,000; that policies of insurance sold by him were usually kept in force by the assured paying their annual premiums, and that he had made cash sales of other similar interests in renewals. Myers’ interests in those renewals on policies already sold and first premiums and renewals paid thereon were as certainly vested interests as were the interests of the beneficiaries named in the policies in the insurance money that were to be paid on the death of the assured. His interests were subject to conditions subsequent in like manner as were the interests of the beneficiaries in the policies. His interests were to expire or be forfeited on conditions that the assured died or failed or refused to pay the renewal premiums, while the interests of the beneficiaries would expire or be forfeited upon failure to pay the premiums and to abide and perform the requirements of the policies, and both were to be paid by the insurance companies. The interests of Myers in the renewal premiums were debts of the insurance companies to him, and not merely debts due the insurance companies. The complainant therefore was not seeking by his bill to attach the debts of the debtors of his debtors. Anything into which money or property or labor has been turned, or in which it has been invested which can be traced or treated in equity as if it were money itself or property, possessing value, and is salable on the market, can be subjected by a creditor’s bill to the payment of the creditor’s judgment, when not exempt by statute. Ogden v. Wood, 51 How. Pr. (N. Y.) 375; Anthracite Ins. Co. v. Sears, 109 Mass. 383.

This bill and the decree in this case secured to the complainant a definite lien or right to Myers’ commissions to be paid by the insurance companies without creating any lien on the property or rights of the insurance companies, or any one claiming under the policies, and without disturbing any rights of any party to the insurance policies or claiming thereunder, and no one complains in this court except appellants. If it may be said that Boisseau v. Bass, 100 Va. 207, and the authorities therein cited, are in conflict with our conclusions, we do not think that they are in harmony with the weight of the authority in this country. Vested interests that have a market value, and from which the holder may and does have full confidence in enjoying yearly incomes, although subject to be defeated on conditions subsequent, ought to be subjected to the payment of his debts by a court of equity, if conveyed in fraud of his creditors.

It is also insisted by appellants that the sale of the renewal commissions by Myers to his wife was a bona fide sale for a valuable and adequate consideration and that the purchase money therefor was from the separate property of Mrs. Myers. We think that the evidence in this record sustains the finding of the court that the transaction was fraudulent and void as to the creditors of Mr. Myers. It was unquestionably shown that Mr. Myers had no other property in his own name at the time of said conveyance except seven suits of clothes, four or five overcoats, five hats, ten suits of underwear, six waist coats, two dozen collars, a dozen neckties, seven pairs of shoes, shirts in numbers unknown to him, a gold watch, platinum and gold chain, silver pencil, a number of cuff buttons, diamond ring, scarf pin, five gold shirt buttons, gold cigar cutter, two sets eye-glasses, trunk, two umbrellas, cane, and some photographs and frames. He was adjudged a bankrupt in December, 1905, and discharged in March, 1906. He testified that he had an income of $10,000 in 1907, and does not remember how much he made in 1906, but that he does remember that he gave his wife $2,000 in December, 1906, as a mere gift without any particular occasion therefor, and that he had large sums of money in his possession at that time and something less than $4,000 in currency on his person. Yet he further testified, in December, 1908, that he could not tell what he did with the balance of his money made in 1906 and 1907, using, in substance, this language : “I don’t think I made any investments since I was declared a bankrupt other than with brokers on the board of trade. I spent it in different ways. May have speculated with some of it. I have none left. Some of my speculations were successful, others not. I speculated with Mrs. Myers’ money for Mrs. Myers. I do not believe the speculations with Mrs. Myers’ money were successful. I cannot tell whether those with my own were successful. I know as a whole I probably lost out, but I have no data as to each individual transaction. During 1907 I might have profited through my speculative transactions. Don’t know whether I used any of my income to pay indebtedness. I used the money, but I couldn’t tell you what for. Don’t know what my living expenses were in 1907. My living expenses includes the money which I used in trying to procure life insurance, entertaining prospects and things like that. The large item was that I put money in my pocket in the morning and did not have it at night; where it went I don’t know. My rent was only $480 a year; my grocery bill and butchers ’ bills and candle stick man is no more than would be of a man who had an income of $1,200 or $1,500 a year. For many years I was making $15,000 and as high as $60,000 a year, and I haven’t a dollar of it to show now. My wife has been paying the living expenses for many months past,—all of 1908, excepting an item of $150 which I gave her. I made no substantial gifts to my wife since October, 1907. I sent her money for living expenses.” He also testified that his wife usually kept a bank account, but that he did not; that he generally carried his money in his pocket or in a safety deposit box in the First National Bank, in which he put money from time to time, but that there is none there now ;• that when he put money in that safety box, it was in large amounts, probably more than $500, but that he did not remember any time or amount or oceasion when he did so. He was also wholly unable to account, and did not account, for the $1,000 paid him by his wife for his interest in the renewal premiums when examined concerning same in December, 1908.

His wife also testified that Mr. Myers frequently gave her presents of money and other property and that she loaned him money frequently, and that he gave her money long before she was married, but that she is not clear whether or not she paid for the rénewals with that money; that she has never been engaged in any earning capacity and that Mr. Myers usually advised and transacted her business in the investments made with her money, and that he looked after former suits and paid the expenses thereof, that were instituted by other parties, his creditors, to have her property and investments declared as his property and investments and conveyed in fraud of their rights; that she had money before she was married, but she specified no amount whatever, and that she gave him money and that she most always treated the gifts as loans and when he paid it back he was very liberal with her and in many instances paid her more than she loaned him. We do not consider it necessary to go into the details of the various transactions between Mrs. Myers and her husband, or to characterize them. It is sufficient to say that the evidence warranted the conclusion of the court that the money or property held by Mrs. Myers was given her by her husband and that she simply held it in trust for him to be dealt with and used at his pleasure, and that it was placed in her name to prevent his creditors from reaching the same, and that the sale of the renewals to her was made with the intent to defeat the complainant in particular in his attempt to collect his judgment.

We have carefully considered the other contentions of appellants, and conclude that they-are untenable. Conceding that the gifts by Myers to his wife were made before this cause of action accrued to appellee, if the gifts were so made to defeat subsequent creditors, the gifts would be fraudulent as to such creditors. The conveyance of the renewals with intent on the part of Myers and his wife to defraud appellee, as the court. was warranted in concluding, is sufficient to sustain the decree of the court.

There is no evidence to warrant the conclusion that appellee was estopped from attacking Mrs. Myers’ title by reason of his recognizing her title, or by reason of any former suits brought by other creditors. He was not a party to the other suits, and the transaction sought to be set aside in this case is a new transaction which was never in question in the former suits.

The supplementary proceedings by citation, pending in the Municipal Court, were no abatement or bar to this suit. The remedy by citation in that court is a summary proceeding and not intended to try contested rights and titles to property, and a court of equity would not be warranted in declining to take jurisdiction in a case like this, where a conveyance by the debtor to a third person is asked to be set aside ¡on the ground of fraud, and the property subjected to the payment of the debtor’s debts. Moore v. Brandenburg, 248 Ill. 232.

The decree of the court is affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Duncan

license: Public Domain

text:
    Peter L. Miller, Appellant, v. American Light & Fixture Company, Appellee.
    Gen. No. 17,506.
    1. Receivers—expenses of receivership. The mere fact that the property in the hands of a receiver is insufficient to meet the expenses of the receivership, does not render the complainant, at whose instance the receiver was appointed, liable for such expenses.

      2. Receivers—where party securing appointment is liable to creditors of receiver. Where .it clearly appears that the intent of a party in securing the appointment of a receiver was fraudulent and for his personal ends and not with a view to pay the debts of the concern and conserve the interests of all concerned, including creditors, that such party has directed and controlled the receiver in the continuance of the business and has received a salary from the receiver as his clerk without direction of court, and that the court and creditors of the receiver have been kept in ignorance of the condition of the company’s business by failure to file an inventory, such party will be required to make good any losses resulting to the creditors of the receiver.
    3. Receivers—liability for fees of receiver and his solicitor. Where a receiver is shown to have been appointed and continued through the fraud or illegal conduct of the parties asking for such receiver, such parties will be held liable for the fees of the receiver and his solicitor.
    Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed June 30, 1913.
    Rehearing denied July 24, 1913.
    George B. Byron, for appellant.
    Vose & Page and Baker & Holder, for appellee; Hubert E. Page and Le Boy W. Holder, of counsel.
   Mr. Justice Duncan

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of Cook county by Peter L. Miller, complainant in the original bill for the appointment of a receiver, etc., entered against him for the unpaid balance due the creditors of the receiver and for the unpaid fees of the receiver and his solicitor upon an intervening petition of Manhattan Electrical Supply Company, one of the creditors of the receiver, on behalf of all of the creditors of the receiver, and upon the petition of the receiver in his own behalf. The court found the fees of the receiver to be $1,000, his solicitor’s fees $485, and that on said sums he had received $893.23, leaving a balance due him $591.77; that there remained due the creditors of the receiver $1,573.01, the total amount due as decreed being $2,164.78; and that the receiver had disposed of all the property of the insolvent corporation, American Light and Fixture Company.

The original bill was filed against the corporation as defendant, and the receiver, Roger S. Culver, was appointed January 20, 1908, by the consent of the corporation, by its attorney, with all rights and powers of a receiver in chancery and was specially empowered to “continue the business of said company until further order of this court,” and to employ necessary assistance for the continuance of said business and for completing the goods in process of manufacture, to fill all orders received, to carry out the contracts of the corporation, and to continue to occupy and pay rent for the premises theretofore occupied by the corporation, and the rent contracted by it. The receiver was also by the decree ordered to make and return with all reasonable haste an inventory of the assets of the corporation. The receiver operated the business of the company from his appointment to the following September 5th without filing any inventory or report and incurred the indebtedness to the several intervening creditors for supplies used in the conduct of the business, and then without notice to the court discontinued the business. The various creditors thereafter-' intervened and upon motion of one of them the receiver was ordered, December 9, 1908, to file his inventory and report within five days, but no inventory was filed until January 25, 1909, and no report was filed until the following May, although ordered by the court four other times previous thereto to report. On exceptions being sustained to the report an amended report was filed June 16, 1909, and thereafter on behalf of the other creditors the said petition of the Manhattan Electrical Supply Company was filed charging that said bill was filed collusively by Peter L. Miller, and that he had personally intermeddled in the affairs of the receiver and that the receiver had neglected his duties; that the receiver employed said Miller at a salary of $100 per month to attend to the books of said receiver, and continued him as such employe until September 15, 1908, and paid him for such services $750; that said Miller also became a creditor of the receiver for $1,250.74 for money borrowed and exercised an influence over the receiver and induced him to prefer him as a creditor and pay him without leave of court, and directed and controlled the receiver in the conduct of the business, and neglected to serve him faithfully and post the receiver as to the true condition of the business, well knowing it to be a losing business; and prayed that Miller be required to pay the creditors of the receiver the amounts found due them after all the assets in the receiver’s hands had been equitably distributed, including the .sums paid Miller by the receiver, etc. Miller filed an answer to the said petition of Manhattan Electrical Supply Company, and to the other intervening petitions, and on July 7, 1909, from the evidence and the admissions of said Miller in his answer the court found on a hearing the allegations in said petition substantially true, and ordered and decreed that said Miller should repay to the clerk of the court on or before July 13, 1909, said sum of $750 wrongfully paid him, and found that said Miller took active part in the conduct of the business of the receiver and is chargeable with full knowledge of the business during its continuance, and that he is liable for the deficit, if any, that should remain due the creditors of the receiver after they had received their equitable distribution of said proceeds. After all the assets had been liquidated, as ordered by the court, and the funds brought into court, the causes on the intervening petitions of the several creditors of the receiver, and the said petition of the receiver for allowances, and answers thereto by said Miller and the corporation, were referred to the master in chancery for proofs and findings, and the master reported his findings to the court July 14,1910, in substance, that the American Light and Fixture Company was organized June 5, 1907, with a capital stock of $5,000, owned in equal shares by Peter Miller and Adolph Rhein, with the latter as president and the former as secretary, at $100 per month, and Morton T. Culver was retained as attorney and legal adviser; that the capital stock was increased in September, 1907, to $10,000 and that on Saturday before the bill for a receiver was filed Rhein sold all his stock to Morton T. Culver, and at that time Roger S. Culver, the receiver, and J. Raymond Culver were holders of $175 and $225 worth of stock respectively, all the Culvers being brothers; that the company’s business had been a losing one, there having been strikes and labor troubles, and Miller and Rhein having had trouble and disagreements, but that it was thought that by getting rid of Rhein and reorganizing the corporation might succeed and its debts be arranged for; that said amounts for the receiver and for the attorney of the receiver, Henry 1ST. Culver, were reasonable and the services worth said sums, and also found the amounts due creditors of the receiver aggregating said sum; that the business of the receiver was conducted at a loss from the beginning and that Miller and the receiver realized it in April; that some of the creditors were paid in full or substantially so, including Miller, while others were paid nothing; that neither the court nor the creditors were advised of said things and conditions until long after the operations had proved a failure and the business had ceased to be operated; that there were no legal grounds for the appointment of a receiver and that that proceeding was not intended by its movers, including Miller, to operate for the benefit of creditors, but to gain time to effect a settlement with the original creditors of the corporation, and that their claims were settled shortly after said receiver was appointed by the paying of one-fifth thereof cash, and the remainder on time, as shown by the notes in evidence; that the court was kept in ignorance of the true state of affairs and the business was conducted without its orders or directions; and that the complainant in the original bill, Miller, is personally responsible for any deficiency in the jfund necessary to pay the compensation of the receiver and his solicitor’s fees, and the claims of the creditors of the receiver. Objections were filed to the master’s report by appellant, Miller, and were overruled and treated "as exceptions before the court. The court on argument entered a decree in accordance with the report of the master November 2, 1910, from which decree this appeal was taken. No appeal seems to have been taken and no certificate of evidence has been filed as to the order and decree of July 7, 1909, which was complied with by appellant as to the repayment of the $750 salary.

On tills appeal only the legal conclusions of the master and the court are challenged. It is in no way suggested that the evidence does not support the findings. The proposition set forth in appellant’s brief and argued is this: “The mere fact that the property in the hands of the receiver is insufficient to meet the expenses of the receivership, does not of itself render the plaintiff, at whose instance the receiver was appointed, liable for those expenses.”

The truth of that proposition is not questioned here, and must be regarded as sound and well supported by the case of Atlantic Trust Co. v. Chapman, 208 U. S. 360. The main doctrine of that case is that as soon as a receiver is qualified, he comes under the sole direction of the court, is the court’s officer, and his engagements are those of the court, and are performed under the order and directions of the court, and the liabilities he incurs are chargeable upon the property and not against the parties at whose instance he was appointed, and who have no authority or control over him and his actions. The court is supposed to look into the conditions of a party or concern for whom or over whom a receiver is appointed, and before ordering the business continued by a receiver to ascertain if the operation will likely continue at a loss, and to keep track of the receiver and the business and to order the work discontinued when continuance of it means loss to the parties and creditors concerned. Where the court is deceived and intentionally kept in ignorance of the real conditions of the company’s business and the intent of the parties in securing the appointment of a receiver is clearly shown to be fraudulent and for the personal ends of the complainant, and not with a view to pay the debts of the concern and to rightly conserve the interests of all concerned, including creditors, as is shown in this record, a very different case is presented. In such a case, when it further appears, as in this suit, that, after the old debts of the corporation were in part paid and the other parts settled for with time notes; that the original complainant has directed and controlled the receiver in the continuance of the business, has loaned him money to conduct the business and received a salary from the receiver as his clerk, without direction of the court, and without filing an inventory, as directed by the court; and that thereby both court and creditors of the receiver are kept in ignorance of the conditions of the business, and the creditors of the receiver are thereby injured and lose their accounts against the receiver, it is equitable and just that such complainant should make good those losses to the creditors of the receiver. The general rule is also that unless the court appoints a receiver on condition that the complainant in the bill shall pay his and his solicitor’s fees, that the receiver must make his charge simply against the property or the results accomplished by him in his work as a receiver, if those results are profitable to the parties asking for a receiver. There are exceptions, however, to this rule, as when the receiver is shown to be appointed and continued through the fraud or illegal conduct of the parties asking for such receiver. The Supreme Court of the United States recognizes such exceptions in the case above cited. As no objection is raised to the right of the receiver or his solicitor to an allowance of the fees, we think it was proper in this case to tax up such fees against appellant.

While we are unable to find any case exactly in point for our holding, we cite the following authorities that have led us to our conclusions here. Link Belt Machinery Co. v. Hughes, 195 Ill. 413; McAnrow v. Martin, 183 Ill. 467; McLean v. Gillespie, 130 Ill. App. 356.

The decree of the court is affirmed.

Decree affirmed.


author: Mr. Presiding Justice Graves

text:
    Oliver L. Moore, Appellee, v. The Industrial Construction Company, Appellant.
    Gen. No. 17,402.
    1. Appeals and ERRORS'—waiver of demurrer by pleading. The correctness of an order overruling a demurrer to a declaration is not presented for review, where defendant elects to plead rather than stand by the demurrer.
    2. Pleading—determination of sufficiency. It is the facts averred and not the conclusion of the pleader that must be looked to, to determine the sufficiency of a declaration.
    3. Master and servant;—sufficiency of declaration. A declaration averring in effect that plaintiff was a servant of defendant when he was injured; that dynamite is a dangerous explosive made more dangerous when heated; that dynamite was brought upon the premises and there overheated; that plaintiff did not know such fact; that plaintiff was working as a carpenter and the servants handling the dynamite were engaged in digging holes; and that the dynamite exploded and injured plaintiff by being heated unnecessarily hot, is sufficient after verdict and is not objectionable in not alleging that the risk was not assumed and that the coworkers were not fellow-servants.
    4. Master and servant—liability for dynamite explosion. Where a servant was injured by an explosion of dynamite rendered more dangerous by being overheated by a eoworker, the master is regarded as having done it and is charged with knowledge of the facts and with negligence in permitting it to be done, and is liable unless the coworker was a fellow-servant, or plaintiff assumed the risk or was guilty of contributory negligence, even if the master was not responsible for” the shock causing the explosion, providing the dynamite would not have exploded if it had not been overheated.
    Error from the Superior Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed June 30, 1913.
    Taylor & Lundahl and V. S. Lumley, for appellant.
    D. T. Smiley and Shurtlefe & Heizer, for appellee.
   Mr. Presiding Justice Graves

delivered the opinion of the court.

By the rulings and instructions of the trial court the right to recover in this case was limited to the second, third and fifth counts of the declaration. The fifth count contains averments, in substance, that appellee was at the time he was injured working as a carpenter on a building being constructed by appellant; that the same was to be constructed on piers to be set in the ground; that in the digging of the holes or trenches for these piers the servants of appellant were using dynamite, a highly dangerous explosive, which was brought on the premises by appellant to be heated and used without the knowledge of appellee; that while appellee with due care and caution for his own safety was attending to his work and labor, the dynamite exploded causing the injury complained of to appellee.

The second count is substantially like the fifth except that it is therein charged that the dynamite was negligently overheated and consequently exploded.

The third count is also similar to the fifth, except that it is therein charged that the servants of appellant so negligently handled the dynamite that the same was exploded.

Upon a demurrer to this declaration being overruled appellant filed a plea of general issue and the cause went to trial. The jury found appellant guilty and assessed appellee’s damages at $10,000. Judgment on the verdict was entered. Appellant having elected to plead, rather than to stand by its demurrer, the correctness of the order overruling the demurrer is not presented for review. The sufficiency of the declaration after the verdict to warrant a judgment thereon is questioned on the ground that it is not charged therein that the servants whose acts of negligence caused the injury were not fellow-servants with appellee, or that appellee did not assume the risk incident to the employment, all things considered.

Our Supreme Court has frequently said that a declaration in an action by a servant against his master that charges facts showing, “(1) the existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) a failure of the defendant to perform that duty; and (3) an injury to the plaintiff resulting from such failure,” states a cause of action. McAndrews v. Chicago, L. 8. & E. Ry. Co., 222 Ill. 232.

In Kelleher v. Chicago City Ry. Co., 256 Ill. 454, the court said: “The objection was not, however, taken by demurrer, but on motion in arrest of judgment, and on such motion, after verdict, the rule is different, and the allegations are to be construed so as to support the judgment. If the issue joined be such as necessarily required, on the trial, proof of facts omitted or so defectively or imperfectly stated as to have constituted a fatal objection upon demurrer, without which proof it is not to be presumed that either the judge would direct the jury to give or the jury would have given the verdict, such defect, imperfection or omission is cured by verdict.”

In Sargent Co. v. Baublis, 215 Ill. 428, where it was claimed the declaration was not sufficient after verdict to sustain the judgment, because it failed “to allege facts showing any relation between the parties from which the law would create any duty from the defendant to the plaintiff”; because no actionable negligence was alleged; and because it failed “to allege facts showing that the defendant knew or ought to have known of the defect and lack of knowledge” on the part of the plaintiff, the court said: “* * * On demurrer a declaration is construed against the pleader, but after verdict all intendments and presumptions are in its favor * * *. A verdict will aid a defective statement of a cause of action by supplying facts defectively or imperfectly stated or omitted which are within the general terms of the declaration * * *.” The court held the defects in that declaration cured by the verdict.

It is the facts averred and not the conclusions of the pleader from those facts that must be looked to, to determine the sufficiency of a declaration. The facts averred in this declaration show, (1) that appellee was a servant of appellant when he was injured. The relation of master and servant imposes on the master the duty to use reasonable care to cause the place where his servant is placed at work to be and remain reasonably safe; that the servant shall be subjected to no unusual, unknown and unexpected dangers. (2) That dynamite is a dangerous explosive made more dangerous by heating. (3) That dynamite was brought by appellant’s servants onto the premises where appellee was working and was there overheated, or, in other words, heated unnecessarily hot. By that averment appellant’s negligence is shown. (4) That appellee did not know it had been brought onto the premises or that it was being heated there. This averment negatives the assumption of . the risk of its presence there or of its being overheated. (5) That appellee was working on a building there as a carpenter and that the servants who brought the dynamite onto the premises and who there heated it unnecessarily hot were engaged in digging holes or trenches in which to erect piers. This shows that they were not carpenters, for it is common knowledge that excavating holes or trenches in the ground is not carpenter work, thereby negativing the close relation between those servants and appellee promotive of caution for his safety which would render them fellow-servants. (6) That by reason of the dynamite being heated unnecessarily hot it exploded and injured appellee. Whether these averments would stand the test of a demurrer we aré not called on to decide. Construing these averments with every intendment and presumption in favor of the sufficiency of the declaration, as we must do after a verdict, we are forced to the conclusion that they are amply sufficient to sustain a judgment.

The issue joined on this declaration put appellee to his proof of every fact necessary to his right to recover. The proof on every essential issue fairly tends to support the verdict rendered. It does not show what intervening cause produced the explosion, but a preponderance of it tends to show that, while overheating alone would not explode dynamite, it does render it unduly sensitive to shock and consequent explosion in proportion to the degree of heat it is subjected to, and at least one uncontradicted expert witness testified that in his opinion the dynamite was overheated and that the explosion was directly due to that fact. If overheating rendered the dynamite more dangerous, then to overheat it was negligence. If it was overheated by servants of appellant, then appellant did it and is charged with knowledge of the fact and with negligence in permitting it to be done, and unless the servant who did it was the fellow servant of appellee, or appellee assumed the risk there involved, or was guilty of contributory negligence, then appellant is liable to appellee for the damage received by him, even if the shock that actually exploded it was produced by some act for which appellant was in no way responsible, providing it would not have exploded if it had not been overheated. All these questions were for the jury to determine. They were determined adversely to appellant. After a painstaking consideration of all the evidence we are unable to justify a holding that the verdict is contrary to the weight of the evidence.

Complaint is made to the giving of one instruction at the request of appellee. The instruction has been condemned in several cases where the declaration did not negative the assumption of risk. We have already shown that the declaration in this case contains an averment that is equivalent to an express denial that appellee assumed the risk. There was no error in giving the instruction in view of the averments in the declaration in this case.

Finding no reversible error in the record, the judgment is affirmed.

Judgment affirmed.


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    Annette Proctor, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 17,426.
    1. Carriers—fall of alighting passenger not caused by negligence. In an action based on the alleged negligence of a street ear company in suddenly starting a car in motion while a passenger was attempting to alight therefrom, held that a verdict for plaintiff was against the manifest weight of the evidence which tended to show that something else than the sudden starting of the ear was the cause of plaintiff’s falL
    2. Carriers—when erroneous instruction is not prejudicial. The giving of an instruction announcing the right of a passenger to recover for the premature starting of a street car in terms broader than that claimed in the declaration, may not be prejudicial error where another unobjectionable instruction is given.
    Appeal from the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed June 30, 1913.
    Watson J. Ferry, for appellant; Leonard A. Busby, of counsel.
    Francis W. Walker, for appellee; Kenner S. Bore-man, of counsel.
   Mr. Presiding Justice Graves

delivered the opinion of the court.

■ This is an appeal from a judgment in the Superior Court in an action for personal injuries charged in the declaration to have been received by appellee in consequence of the negligence of appellant, through its servants, in suddenly and violently starting in motion a car on which appellee was a passenger for hire, while she was in the act of alighting therefrom, by means whereof she was thrown violently forward and caused to step and fall into a hole in the street there. The evidence was conflicting. There was some evidence tending to support the claim of appellee as alleged in her declaration; some tending to show that she was so thrown by the sudden and violent “stopping” of the car, and much and by far the greater amount of evidence tends to show that she fell while the car was standing still and while she was in the act of alighting therefrom or after she had safely alighted and had started to walk to the sidewalk. The jury, besides finding appellant guilty, found specially that appellee was thrown from the ear by the starting forward of the same while she was attempting to alight and before she had alighted therefrom, and that she was not thrown therefrom by the stopping of the same.

The first ground urged why the judgment should be reversed is that both the general and special verdicts of the jury are contrary to the manifest weight of the evidence. Appellee herself testified that she was on the platform ready to get off when the car stopped; that she took hold of the hand hold or railing on the car with her left hand, and as she was in the act of alighting, with one foot on the step and the other “in the air” ready to step down, the conductor rang the bell and the car started with a jerk; that she held on with her left hand in an attempt to recover her position on the car until it jerked a second time, whether in stopping or going forward she does not say, when something hurt her or struck her and the next thing she knew she was in a drug store with her shoe off and someone holding some water to her lips; that when the car stopped at the crossing before she attempted to alight, she saw one person and one only and that a lady there waiting to board the car, but that she did not know whether or not that lady actually boarded the car.

Hose Abraham, a witness called by appellee, testified that he saw appellee standing up inside the car; that as it- approached the place of the accident appellee was coming toward the car door and when she got on to the step of the car, “the car gave a sudden stop,” and he saw her fall off from the step of the car into a hole in the street; that he and one Devengood went to her assistance and carried her bodily into a nearby drug store; that she was unconscious until Devengood prbcured some water and struck her face with it; that another lady boarded the car after it stopped the first time and while it was standing there before appellee was thrown off; that no one else boarded the car there; that this lady who there boarded the car was thrown against the corner of the car by the sudden jerk of the car; that the car stopped twice in twelve feet; that when appellee was standing in the doorway of the car with her hand on the rail he saw the conductor pull the bell; that at the time he pulled the bell no one was trying to get off and no one did then get off; that the car started up and then stopped suddenly; that the hole in which appellee fell was two feet from the car track; that appellee remained standing on the platform all the time the car was standing there and while the other lady was getting on and until the car started up; that after the car started up appellee made a movement toward getting off; that when the car stopped the second time, it stopped with a sudden jerk and appellee then fell off.

Harry Levengood, a witness called by appellee, testified that he was with the witness, Abraham, when the accident happened; that he first saw appellee standing with one foot on the step and one foot on the platform of the car when it started up suddenly and stopped suddenly and threw her off, and she fell into a hole in the street about two or three feet from the car; that when the car was standing there after it stopped the first time a lady boarded it. Appellee, Abraham and Levengood were all the witnesses called by appellee to show how the accident happened. On that question appellant called as witnesses John Bernet, William Gr. Cogswell, Catherine T. Leonard, Bose Young, Harry B. Young, William Berg, and Jesse D. Miller.

Bernet testified that he was on the rear platform waiting for a transfer when the accident occurred; that the ear came to a full stop and while it was standing still appellee stepped off from it, took two or three steps in the street and sank down on the street; that several persons boarded the car while it was standing there; that the ear did not start up after it first stopped until after appellee had been taken to the drug store.

Cogswell, an investigator for appellant in its claim department, testified that after the accident he saw appellee and that she told him that appellant was in no way to blame; that the hole in the street was the sole and only cause of the accident; that she stepped from the car into the street, stepped into a hole and fell down.. Appellee denies. having said this to the witness.

Catherine T. Leonard testified that she saw an accident to a lady at the time and place in question; that the car stopped and witness stepped from the street to the first step; that she noticed a lady getting off; that the lady stepped down from the platform onto the step just as the witness stepped from the ground onto the step; that just behind witness a gentleman and lady with a baby in her arms boarded the car; that the lady with the baby remarked that the lady who was leaving the car ran into the baby and witness looked and saw the lady who had gotten off sort of sitting down in the street about four feet from "the car with her feet under her; that the conductor and another man assisted her in getting upon her feet; that there were no signs of her being unconscious; that the car was not started up after it first stopped until after appellee had been taken to the drug store.

Rose Young testified that she saw the accident; that as witness and her husband were boarding the car appellee was getting off and jostled against witness who was carrying her baby; that after witness had gained the platform of the car she looked around and saw appellee was down in the street four or five feet from the car in a sitting position; that the conductor and another man took appellee to drug store; that the car stood there five or ten minutes and did not start up and then stop again until after the conductor returned from the drug store where appellee was taken; that witness was in the act of boarding the car and had one foot on the first step and one on the ground as appellee fell; that appellee was one step down from the platform of the car and then fell from the step to the ground and was in a sitting position with her back to the car.

Harry B. Young, husband of Bose Young, testified that as the car approached the place of the accident he and his wife, with the baby, were on the left side of the track coming to take the car, but were too late to pass ahead of it; that when the car stopped they passed around behind it and boarded it; that as his wife was in the act of boarding the car someone hit the baby and fell in the street; that witness did not see the person actually on the ground, but saw the conductor and other persons assisting her from the ground; that the car did not start and stop again after it first stopped until after the accident, but stood still all the time.

William Berg, the motorman, testified that at the time of the accident the car stopped to receive passengers who were there waiting and did not start up again for four or five minutes and not until the conductor returned from the drug store, but that he did not see the accident.

Jesse D. Miller, who was the conductor of the car at the time of the accident, testified that after the car had stopped to receive and take on passengers appellee stepped off the car and walked a couple of steps; that as she took about the second step her ankle turned and she went down on the pavement; that she did not fall lengthwise on the ground, but sank or “kind of sat down”; that he assisted her to the drug store; that the car did not start after it first stopped until he had returned from the drug store, and was not in motion at any time when appellee was alighting therefrom.

With the fact in mind that the right of appellee to recover, as alleged in her declaration, the special finding of the jury and the general verdict, are all based on the negligence of appellant in suddenly starting the car in motion while appellee was attempting to alight therefrom it seems to us that fair minded and unprejudiced persons on a consideration of the evidence must agree that the verdict is manifestly wrong, and that the manifest weight of the evidence in this record tends to show that something else than the sudden starting of the car was the cause of appellee’s fall. While courts of review are and should he slow to interpose their judgment as to the facts against the finding of a jury, where such finding is as palpably wrong as it seems to be in this case, it becomes a duty that must be performed.

Some criticisms have been made of the rulings of the trial court on the admissions of evidence that are technically well taken, but we are unable to see how appellant could have been prejudiced thereby, and would not disturb the judgment on that account.

Two given instructions are complained of. The basis of appellee’s right to recover, as announced in one of these instructions, is broader than that claimed by the declaration. By this instruction the jury are told, in effect, that appellee had a right to recover if the car was suddenly and violently started while she was preparing or was about to alight from the car. While the negligence charged in the declaration is that it was so started while she was attempting to alight therefrom, in the light of the other instructions given we do not think the giving of this one was prejudicial error, although it should not have been given. The objections urged to the other instructions complained of can not be sustained.

Because the verdict of the jury was manifestly against the weight of the evidence, the judgment of the court below is reversed and the cause is remanded.

Reversed and remanded.


text:
    James J. Ryan, Appellee, v. City of Chicago, Appellant.
    Gen. No. 17,519.
    1. Trial—directed verdict. An instruction to direct a verdict should not be given if there is any evidence from which, considered by itself, the jury could, without acting unreasonably in the eyes of the law, find that the material assessments in the declaration have been proven; and the instruction must be denied even if the court is of the opinion that in case a verdict is based upon such evidence it must be set aside.
    2. Municipal corporations—evidence sufficient to show accident occurred on sidewalk. Plaintiff, in a city sidewalk accident case, testified that the accident occurred on a sidewalk not under a railroad subway, and he was corroborated by other witnesses. Witnesses for the city testified that he was found under the subway and admitted after he was carried into an adjoining office that he fell under the subway, which testimony was contradicted. Held, the proof supported a verdict for the plaintiff.
    3. Municipal' corporations—evidence of obstruction on sidewalk. A person fell on a city sidewalk and introduced evidence that the walk was composed of natural earth that sloped downward; that several roots pf a tree protruded six to eight inches above its surface; that heavy snowfalls had occurred in the preceding month; that the snow had been partly trodden down and concealed the uneven condition of the path, and that the condition had existed for two weeks. Other witnesses testified to the existence of a wooden sidewalk and the absence of any obstruction. Held, a verdict for the plaintiff should be sustained.
    4. Damages—sufficiency of declaration to sustain proof. Under an averment that plaintiff, by reason of an obstruction, fell upon a sidewalk, and sustained injuries “in and about the body, head and limbs, both internally and externally, and divers of the bones of his body were then and there broken,” it is immaterial whether his knee cap was broken by spasmodic muscular action or by coming in forcible contact with some hard substance.
    5. Evidence—when opinion evidence is not objectionable. Where under the averments of a declaration it is immaterial whether a broken knee cap was caused by direct or indirect violence, medical expert opinion evidence that the fracture was caused by indirect, as distinguished from direct violence, is not objectionable as being opinion evidence as to the cause of an injury.
    6. Appeal and errors—reversible error. Where the location where an accident happened was in dispute, permitting a question whether the witness had heard that a man was injured at a certain place, that was too specific as to the location, held, not to warrant a reversal.
    7. Evidence—preliminary proof before admitting photograph. Where a witness in a sidewalk accident case testified that a photograph was a correct picture of a certain condition of the sidewalk, the photograph was properly excluded, there being no proof of who made the photograph, the skill of the photographer, the kind of instrument used, where it was placed, that it was a picture of the locus in quo, when it was taken, and, further, it not appearing how the photograph would have been helpful in determining its issue involved.
    8. Instructions—care to be used by intoxicated person. Where there is some evidence that plaintiff was intoxicated when he fell on a sidewalk, an instruction, requested by plaintiff, as to the meaning of the terms ordinary care or reasonable care that omits the requirement that plaintiff should have used the same care that a sober person would have exercised, should be read in connection with an instruction, offered by defendant, as to intoxication that would be contributory negligence, and when so read, will not mislead the jury.
    9. Damages—when $6,000 is not excessive. $6,000 damages for a fall upon a street is not excessive where an injury to the knee cap resulted in plaintiff becoming an incurable cripple, putting him to great expense, greatly reducing his earning capacity, and causing him to suffer much pain.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed June 30, 1913.
    Rehearing denied July 24, 1913.
    Edward J. Brundage, William H. Sexton, Clyde L. Day and N. L. Piotrowski, for appellant; David K. Tone and David R. Levy, of counsel.
    McGoorty & Pollock, for appellee.
   Mr. Presiding Justice Graves

delivered the opinion of the court.

There are two counts in the declaration in this case. The negligence charged against appellant in the first count is, in substance and effect, that it suffered and allowed its sidewalk on Armitage avenue “a short distance east of the subway over which the tracks of the Chicago & North Western Railway Company extend” to be and remain obstructed and in bad and unsafe condition by reason of large accumulations of snow and ice thereon, which appellant allowed and permitted to there remain after the lapse of a reasonable length of time, in which the same might have been removed. The second count is substantially the same as the first, except that the obstructions are described as “ice, snow and other substances.” Both counts are in other respects formal. -The declaration states a cause of action. The-injury sustained and the manner in which it was inflicted are described in the first count of the declaration as.follows: “By means whereof the plaintiff, who was then and there passing along and upon the said sidewalk and was exercising ordinary and reasonable care, then and there necessarily and unavoidably slipped and stumbled upon and against one of the said icy rough obstructions of frozen snow and was thereby thrown and fell to and upon the said sidewalk, and the accumulation of snow and ice thereon, and thereby sustained serious injuries in and about the body, head and limbs, both internally and externally, and divers of the bones of his body were then and there broken, and the muscles and ligaments of his body were then and there torn, bruised and lacerated, and he did then and there receive a great nervous shock from which he will never fully recover.” In the second count almost the identical language is used. The jury found appellant guilty and assessed the damages of appellee at $7,000. After a remittitur of $1,000, judgment was entered for $6,000. This is the judgment appealed from. •

Appellant’s first contention is that the court erred in refusing to direct a verdict of not guilty. An in. struetion of that character should not be given if there is evidence in the record from which, considered by itself, the jury could, without acting unreasonably in the eyes of the law, find that the material averments in the declaration have been proven. If there is such evidence in the record, even if the trial court is of the opinion that in case a verdict is based thereon it must be set aside, still the motion must be denied. It is not for the trial court on such a motion to weigh the evidence or pass upon the credibility of the witnesses. Libby, McNeill S Libby v. Cook, 222 Ill. 206. There is evidence in this record fairly tending to prove all the material averments in the declaration and the motion was properly denied.

It is next urged that the verdict is manifestly contrary to the weight of the evidence in that the evidence shows that the accident occurred under the subway of the Chicago & North Western Railway, instead of east of it, as alleged in the declaration; that the sidewalk was not obstructed by ice, snow or other substances ; that the conditions there had not continued long enough to constitute constructive notice to appellant, or so that the same could have been remedied by it and that the main injury complained of, namely, the fracture of the patella or knee cap, was not caused in the manner or by the means testified to by the witnesses of appellee.

No one was present or saw the accident except appellee. He testified that it occurred just west of a tree that is shown to have been about forty feet east of the subway. He was corroborated by Cora Queen, who was the first person who saw appellee after he fell. She testified he was then about five feet west of the tree. He was also corroborated by Dr. Blair, who was the second person who saw him after he fell. Dr. Blair testified he was a few feet west of the tree, perhaps ten or fifteen feet. Appellee testified that, before Dr. Blair came he pushed himself with his hands, and slipped ten or twelve feet in the direction of the subway from the tree; that Dr. Blair and a passer-by by the name of Lunberg, since dead, then moved him to about the center of the subway, and then laid him down and went and procured more aid and carried him to a near-by coal office. Dr. Blair corroborates this except he is not certain as to the distance appellee was first carried before he went for assistance. To contradict this James Van Natta, one of the men whom the doctor procured to assist him in moving appellee to the coal office, says when he returned with the doctor to aid him in carrying appellee they found him near the middle of the subway. This is in accord with the testimony of appellee as to where the doctor and Lunberg left him to go for aid. James Van Natta and Ira Van Natta both testified that appellee after he was in the coal office said in their presence and in the presence of Dr. Blair and a Mr. Goebel that he fell under the subway. Thomas Brockwell testified to substantially the same sort of a statement by appellee. These statements are denied by both appellee and Dr. Blair. We are unable to say that in this respect the proof does not support the verdict.

On the question of the condition of the sidewalk or path where the accident occurred on and before the 3rd day of January, 1904, the time when it occurred Miss Queen, Aleck WosikowsM, James Cooney, Albert D. Schilvoek, Thomas Jordan, Samuel H. Queen and appellee all testified for appellee. Concretely stated, the testimony of these witnesses- shows that for years the walk or path from the subway east for some distance beyond the place where the accident occurred was composed of the natural earth on which, sometime before the accident, had been placed a “couple” of loads of cinders that by time and use had become so mixed with the earth as- to leave the path muddy in wet times; that near the center of where the sidewalk would be, if there had been one, and some thirty-five or forty feet east of the subway, a large tree some two and one-half feet in diameter stood; that several roots of this tree protruded above the surface of the path; that one of these roots extended entirely across the path used by pedestrians and was from six to eight inches above the general surface of the path there; that the path sloped downward for three or four feet from the tree westward at a rate variously described as three inches to the foot and as forty-five degrees; that this condition had existed for years; that during the winter none of the snows that had fallen had been cleaned from this path, but had been trodden down leaving the surface very uneven and icy; that that condition had existed for at least two weeks; that on the night before the accident there had been a considerable fall of snow that had not been cleared away, but had been partly trodden ddwn by pedestrians and served to hide the uneven condition of the path; that when snow fell and the wind blew, the snow drifted in the path around and near the tree; that it had so drifted during the last snow, at least one of the witnesses describing the drift as a “mountain.”

On this subject the following witnesses testified on behalf of appellant. Henry J. Cox, the official weather forecaster for the United States Grovernment at Chicago, testified to falls of snow on December 1st, 3rd, 4th, 5th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 16th, 20th, 24th, 27th, 28th, 29th, and 30th, in varying amounts from a mere trace to eleven inches on the various dates; that on January 2,1904, three and seven-tenths inches of snow fell and that on January 3, 1904, there was seven and five-tenths inches of snow on the ground. Thomas Brockwell testified he never noticed any roots there; that there was a wooden sidewalk east of the place of the accident, but none there at the time of the accident. Frank H. Lambmesser testified that there was a path there about 18 inches wide and that the snow in the path was 3 or 4 inches deep. J. J. Curley testified that there was and had been for sometime" before the accident a cinder walk at the place in question, but that he did not see any roots running across the walk; that there were the stumps of roots that looked as if they had been cut off that were 5 or 6 inches thick; that he did not know when they were cut, but thought they had not been cut after the accident. George Van Natta on his direct examination testified, positively that at the time of the accident there was a two inch plank walk at the place in question. On cross-examination he says, “My recollection is that I laid the two inch plank walk that extended from the driveway to the cement walk in 1900. I think it was taken up in 1904. * * * That is the way I recollect it. * * * It was removed in 1904, because we had to cut down and get down even with the railroad, cut down and get down even with the street. The street was paved before January, 1904, but I mean we cut down as soon as I got around to it, to comply with the street to get down on a level with it. * * * I had occasion to cut

»the roots when I put the cinders in.” James Van Natta testified that there was a wooden sidewalk at the place in question which he thought had not been removed at the time of the accident. Ira J. Van Natta testified that there was a plank sidewalk at the place in question at the time of the accident; that it had been there four or five years, and fitted snugly around the tree and that there was not at any time any roots or “hammocks” of ice projecting over the sidewalk there. Mrs. Nora Connors testified that she did not see anything wrong with the sidewalk. On this point, while the testimony of some of appellant’s witnesses conflicts in some respects with the testimony of appellee’s witnesses and in some respects with the testimony of other of appellant’s witnesses, we think the weight of it all, measured by both the number of the witnesses and their apparent credibility, strongly preponderates in favor of appellee’s theory of what the conditions in fact were, and shows a condition which the jury might well conclude constituted a dangerous obstruction. If the conditions there were as testified to by appellee’s witnesses, then it was for the jury to determine not only whether there was there a dangerous obstruction, but whether it had been there long enough to amount to constructive notice to appellant. The finding of the jury was not manifestly contrary to the weight of the evidence on either of these questions.

We are unable to see how the question whether the knee cap of appellee was broken by direct or indirect violence is material in this case. The declaration is broad enough to permit of a recovery, if it was broken in either way. The averment in this respect has already been adverted to. The substance of it is that appellee, by reason of the obstructions, unavoidably slipped, stumbled and fell upon the sidewalk, and sustained injuries “in and about the body, head ánd limbs, both internally and externally, and divers of the bones of his body were then and there broken * * *.”

There was no averment in the declaration as to whether the violence that resulted in the fracture was applied directly or indirectly, and appellee was under no obligation to prove how it was applied. The proof amply shows that it was broken in consequence of the fall. In fact, there is no contention that it was not so broken. That the street was obstructed, that appellant had notice of such obstruction, if there was any, that appellee fell where he averred and testified he fell, is controverted and the burden was on appellee to prove those things. Appellee also introduced medical expert opinion evidence for the purpose of showing that the immediate cause of the fracture was indirect, as distinguished from direct violence. Objection was made to this evidence on the ground that opinion evidence is inadmissible to prove what caused the injury, or, in other words, that in expressing an opinion on that subject the witness would be, as counsel expressed it, “usurping the province of the jury.” This objection the court overruled. It is insisted that this ruling was erroneous. The objection made assumed that the manner in which the force that broke the patella was applied, was the cause of the injury, and was an issue to be determined by the jury. As we have seen, this was an erroneous conception of the issues involved. We think the objection, as made, was properly overruled. The question for the jury to determine was not whether the patella was broken by spasmodic muscular action or by coming in forcible contact with some hard substance, but was whether it was broken 'in consequence of appellee’s stumbling, slipping and falling, as alleged in the declaration. We are unable to see how this evidence could have prejudiced the rights of appellant, for if it was otherwise liable, whether the force that broke the patella was direct or indirect would not affect that liability.

The case of Illinois Cent. R. Co. v. Smith, 208 Ill. 608, has no application to the case at bar. In that case the declaration charged the railroad company with negligence in allowing the platform on the car on which Smith was working to become and remain out of repair and in an unsafe and dangerous condition by reason of certain particularly described defects, among which was a hole or notch dug or ground therein, and certain parts of the bumpers, platform and coupling that were charged to be broken, splintered and gone. See Illinois Cent. R. Co. v. Smith, 111 Ill. App. 177. The controversy was as to whether these defects so described in the declaration existed. The Supreme Court held that opinion evidence, particularly that based on the character of the injuries received, was incompetent and a usurpation of the province of the jury. That case is reviewed and distinguished in City of Chicago v. Didier, 227 Ill. 571, where it is held that where opinion evidence is directed to what was the cause of the injury, it is inadmissible, and where it is directed to what was the result of the injury, it is admissible. The opinion evidence offered in this case was directed neither to the cause nor to the result of the injury.

When appellee’s witness, Samuel H. Queen, took the stand to testify, he was asked the usual preliminary questions as to his name, age, residence and acquaintance with appellee. The witness then stated that he knew appellee January 3,1904, and then the following occurred:

‘ ‘ Q. Did you hear on that day of any man having been injured on the north side of Armitage avenue east of the Chicago & Northwestern subway?

“Mr. Sullivan. That is objected to, as to what he heard. If he heard about the accident, I do not object to that, but I object to fixing any specific place.

“The Court. He may answer.

“Mr. Sullivan. Exception.

“A. Yes, sir.”

This is assigned for error. The question was not in good form, but it did not in terms refer to the accident to appellee, and while it was too specific as to location, in view of the fact that the place of the injury was in dispute, it was evidently intended to and must have been understood as directing the attention of the witness to the time when and place where appellee claimed the accident occurred, and not as proof that the accident did occur or of when or where it occurred. The objection should have been sustained, but the error of the court in failing to do so could, we think, have worked no such harm to appellant as would warrant a reversal of the judgment for that reason.

It is next urged that the court erred in excluding a photograph offered in evidence by appellant. The only preliminary proof concerning this photograph was made by the witness, J. J. Curley, who said:

“I am the same Mr. Curley that testified this morning. This photograph is a correct and substantial representation of the sidewalk as it was at the time that the cinders lay there between the subway; it is a correct picture of it.

“I never saw the photograph before to-day; I was shown it at noon to-day. I don’t know when it was taken.”

There was no proof made of who made the photograph or of his or her skill as a photographer, or of the kind of instrument used or of how it was used or where it was placed, when the picture was taken, or even that it was a picture of locus in quo, or when it was taken. Although from a colloquy between counsel at the time it was offered in evidence, it seems to be conceded that it was made in 1906, or between two and three years after the time the accident occurred. Neither does it appear in what way the picture, if admitted, would have been helpful to the jury in determining the issues involved. Neither is it preserved in the record for the inspection of this court. The picture was properly excluded. Other exceptions were taken to the rulings of the court on the admission of evidence, but they are too trivial to warrant the expenditure of time in discussing them. It is sufficient to say the court committed no error in the rulings so complained of.

The court gave to the jury at the request of appellee the following instruction: “The court instructs the jury that the terms ordinary care or reasonable care as used in these instructions and applied to the plaintiff do not mean necessarily extreme care or the highest degree of care, but only such care as a reasonably prudent person would exercise under circumstances such as surrounded the plaintiff before and at the time of the alleged injury. ’ ’

Appellant complains because the instruction does not inform the jury that appellee was required to exercise the same degree of care for his own safety as a sober person would in the possession of all his faculties have exercised under the same circumstances. While it is true that an instruction somewhat similar to this one was mildly criticised by the Supreme Court in Wilcke v. Henrotin, 241 Ill. 169, and while it is there suggested that in cases where there is evidence of the intoxication of the persons whose due care is under consideration such an instruction should inform the jury that such person is bound to exercise such care for his own safety as an ordinarily prudent person who was in the full possession of all of his powers and faculties, would exercise, still the court there expressly held that the giving of the instruction without the suggested language was not reversible error, because the defect was waived by the complaining party asking instructions of a similar import. There was in this case some testimony introduced to show that appellee was intoxicated at the time of the injuries. While it hardly reached the dignity of evidence, there is just enough of it to be made the basis of a complaint about this instruction. The instruction here complained of does not direct a verdict and must be considered in connection with all the other instructions in the case.

The second instruction given on behalf of appellant is as follows: “The court instructs the jury that if you believe from the evidence that at the time of the alleged injury the plaintiff was intoxicated, and through such intoxication, if such there was, his mental faculties were then impaired, or he had lost such control of his brain or muscles as an ordinarily prudent and cautious person in the full possession of all his faculties would exercise under similar circumstances, and if you further believe from the evidence that such intoxication, if such there was, contributed to the alleged injury, then the plaintiff cannot recover and you should find the defendant, the City of Chicago, not guilty.”

Reading these two instructions together, it is inconceivable that the jury could have failed to understand the correct rule.

The objections to the giving of another instruction at the instance of appellee and the refusal of one asked by appellant are based on a misconception of the averments of the declaration and are not well taken.

Appellee’s knee cap was broken, the broken parts were drawn apart and have not and cannot be united. It is undisputed that he is left a hopeless and incurable cripple. He has already been put to large expense, his earning capacity has been greatly reduced, he has suffered and still suffers much pain. The judgment in our opinion is, to say the least, no more than compensatory.

Finding no reversible error in the record, the judgment is affirmed.

Judgment affirmed.


text:
    Andrew Lang, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 17,556.
    1. Street railroads—care that driver should use. A person struck by a street car while driving a wagon across the track cannot recover unless he was at and just before the time of the injury in the exercise of such care for his own safety as an ordinarily prudent person would have exercised under the same circumstances.
    2. Street railroads—contributory negligence in driving across track. Where a person is struck by a street car while driving across the track, if the car was at such distance that an ordinarily prudent person knowing the usual speed at which cars were there operated would have undertaken to drive across the street in front of it, at the speed the car was going, he is not guilty of contributory negligence.
    3. Street railroads—negligence of motorman need not be anticipated. A person driving across a street car track is not chargeable with contributory negligence merely because he fails to anticipate the negligent, wilful or unlawful acts of a motorman.
    4. Street railroads—evidence of negligent rate of speed. A person driving across a street car track at a “fair” walk was struck by a street car. The conductor and driver could both see each other, and evidence was given concerning the relative distances apart, the speed of the car, when the brakes were applied, and the distance the car went after striking the wagon. Held, the street car was run at an unusual rate of speed not to be anticipated, and that plaintiff was using due care.

      9. Damages—when, $4,000 for injury to hip hone is not excessive. $4,000 damages for a person struck by a street car is not excessive, where he was considerably bruised all over, suffered an injury to the upper end of the femur that left it in an abnormal condition causing lameness to the time of the trial, suffered much pain in the hip, arm and heart, and became permanently lame.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed June 30, 1913.
    Weymouth Kirkland and Frank L. Krietb, for appellant; John K. Guilliams, of counsel.
    Francis X. Busch, Harry A. Daugherty and Adolph J. Borgmeier, for appellee.
   Mr. Presiding Justice Graves

delivered the opinion of the court.

Appellee was injured by reason of having the rear wheel of a wagon in which he was then riding struck by a street car of appellant, whereby he was thrown from the seat to the tongue or pole of the wagon. The accident occurred on Halsted street about midway between Clay street and Center street. Center street is north of Clay street. It is 781 feet from the center of Center street to the center of Clay street. There are on Halsted street two street car tracks on which appellant was at the time of the accident operating street cars. The west track was used for south bound cars and the east track was used for north bound cars. On the east side of Halsted street opposite the place of the accident, and approximately midway between Center and Clay streets, there is a gate leading from the street into the grounds of a nursery and asylum. Halsted street was there 66 feet wide. It was 38 feet between the curbs. The two street car tracks occupied fourteen feet and five inches. Appellee had driven into this gate with a wagon loaded with vegetables on an average of once in each week for three years. The accident happened between five and six o’clock in the evening of August 14, 1909. At that time appellee approached the place of the accident from the north driving a team of horses hitched to a wagon well loaded with vegetables. He drove down the west side of Halsted street until he reached a point nearly opposite the gate into which he intended driving, when his son, a lad at that time about fourteen years of age, alighted from the wagon where he was riding with his father and went to open the gate. Appellee then turned his horses’ heads to the east and drove them at a walk across the two street car tracks towards, and for the purpose of entering, the asylum gate that had then been opened by his son. When his horses and all of the wagon ahead of the rear wheels had cleared the east street car track, a north bound street car struck the hub of the rear wheel of the wagon with sufficient force to push the rear end of the wagon around to the north, draw the team back into the street with their heads to the south, scatter the vegetables about the street, throw appellee from his seat on the wagon, break and disable the street car, and make sufficient noise to attract the attention of persons in buildings near there. While there is a controversy as to how far the car was from the place of the accident when appellee started.to cross the street, it is admitted on all hands that the motorman saw appellee when he did so, and that from that time on until the collision occurred there was nothing to obstruct appellee’s view of the car or the motorman’s view of appellee and his rig. The jury found appellant guilty and assessed appellee’s damages at $4,000. Judgment was entered on this verdict and this appeal followed.

Appellant contends that the evidence shows appellee was guilty of such contributory negligence as to bar his right to recover. Unless appellee was at and just before the time of the injury in the exercise of such care for his own safety as an ordinarily prudent person would have exercised under the same circumstances, he can not recover. That was a question peculiarly for the jury, and unless their finding is manifestly against the weight of the evidence, their finding must be upheld by this court. Chicago Union Traction Co. v. Jacobson, 217 Ill. 404. Whether appellee was negligent in crossing the street when and in the manner he did depends very largely on how far the car was from him when he started across the street

o

and the speed at which he drove his horses, taken in connection with the ordinary speed at which cars were operated at that place. If the car was at such a distance that an ordinarily prudent person knowing the usual speed at which cars were there operated would have undertaken to drive across the street in front of it, at the speed appellee drove, then he was not guilty of contributory negligence. In determining whether it was safe to cross appellee had the right to assume that the motorman would not wilfully, knowingly or heedlessly run over him or run the car at a high and dangerous rate of speed or at such a speed as to place it beyond his control. While street cars have the paramount right of way on the part of the streets covered by the tracks on which they run, those operating them have no right to deliberately or negligently run down persons or teams that are momentarily infringing on that right. One is not chargeable with contributory negligence merely because he fails to anticipate another’s negligent, wilful or unlawful acts. Chicago City Ry. Co. v. Fennimore, 199 Ill. 9; Henry v. Cleveland, C., C. & St. L. Ry. Co., 236 Ill. 219; Dukeman v. Cleveland, C., C. & St. L. Ry. Co., 237 Ill. 104.

It was 26 feet and 2y2 inches from the west curb to the east side of the east or north-bound street car track there. When appellee started to cross the street, his rig stood north and south close to the west curb of the street. The rig was from the head of the horses to the extreme rear end of the wagon approximately 22 feet in length. The team must, therefore, travel not more than approximately 48 feet before the rear wheels of the wagon would clear the east street car track. They were driven across on a “fair’ ’ walk. The entire rig, except the hind wheels, had cleared the east street ear track when the collision occurred. According to the testimony of appellee and at least two witnesses, when appellee started his team across the street, the car was standing still at Clay street, a distance of about 450 feet south of appellee. After the car started°from Clay street until the motorman put on the brakes it was running, according to the testimony of the conductor and motorman, 10 or 11 miles an hour. The conductor testified that after the brakes had been applied he looked out on the east side of the car and saw the horses just crossing the east street car track; that then the car was 100 feet from the horses; that after the brake was applied the car slowed down until, when it struck the hind wheel of the wagon, it was not going more than three or four miles an hour. According to the conductor the horses when the brakes were applied were just about where the hind wheel of the wagon was when the car struck it. If the conductoras testimony is correct, the horses traveled after the motorman set the brakes on the car about 12 feet, while the car traveled 100 feet at the reduced speed. Again, if the conductor is correct, the horses had traveled more than 30 feet after they started to cross the street before the motorman set the brakes and while the car was traveling at 10 or 11 miles an hour. The car must, therefore, have gone more than three times as far before as it did after the brakes were set, or over 300 feet, making the total distance traveled by the car after appellee started to cross the street and before the collision over 400 feet. This corroborates appellee and his witnesses as to where the car was when appellee started to cross the street. The motorman testified that the car was within 75 or 100 feet of where appellee crossed the street when he first started to do so, but admits his judgment on distances is not reliable. He also testified that the car he was running was 18 to 20 feet long. The conductor says it was 30 to 35 feet long. The motorman also testified he could stop the car in 75 to 100 feet under the conditions existing at the time in question. According to his own testimony the motorman had time and room to stop the car and avoid the collision after he admits he saw appellee start to cross the street. Other witnesses place the distance between the car and appellee at the time in question variously, but we think the fair preponderance of' the evidence shows it to have been about as claimed by appellee, or from 400 to 450 feet.

The witnesses for appellee and some of the witnesses for appellant place the rate of speed of the car, as it approached, struck and passed the wagon of appellee, very much faster than the motorman and conductor, some of them placing it as high as 18 miles an hour, others of them describing it as ‘ ‘fast ’ ’ and ‘ ‘very fast. ’ ’ The distance the car went after hitting the wagon is placed by the several witnesses, except the motorman and conductor, all the way from 10 or 15 feet to as high as 125 to 130 feet. We think the evidence as a whole warranted the jury in believing that the car was run from Clay street north until it struck the wagon of appellee at a high, dangerous and unusual rate of speed, one that he was not required to anticipate, and also in finding that appellee was at the time in question in the exercise of due care for his own safety.

It is next urged that the damages are excessive. Appellee fell on the wagon tongue or pole. He was considerably bruised all over, but was particularly in-injured in the right hip. While there was no complete fracture of the bones, the evidence tends to show an injury to the upper end of the femur that left it in an abnormal condition and caused appellee to be lame up to the time of the trial. He was taken from the place of the accident to a hospital, placed in a plaster cast, and kept in one for three or four weeks. He suffered much pain in the hip, arm and breast. He staid in the hospital five weeks, was then taken home and was confined to his bed for two weeks more, then walked on two crutches for three months, then with one crutch and one cane, and finally with one cane, which he was still using at the time of the trial, about eighteen months after the injury. There, was a thickening of the head of the femur, and also of the innominate bone, and pain in the hip and chest and permanent lameness. While the damages may be ample, they are not so large as to indicate passion or prejudice on the part of the jury or to warrant a reversal of the judgment.

A number of complaints are made by appellant of the rulings of the court on the admission and exclusion of evidence, and the giving and refusal of instructions. We have examined them all carefully and find no reversible error in such rulings. A detailed discussion of all these questions would consume much time and space and could serve no useful purpose.

The judgment of the circuit court, is, therefore affirmed.

Judgment affirmed.


text:
    Nikola Balenovic, Defendant in Error, v. Mary Ansick, Plaintiff in Error.
    Gen. No. 17,575.
    1. Evidence—proceeding at different trial. In an action to recover money deposited with defendant for safe keeping, the records and files in another ease between different parties held inadmissible to rebut statements made by defendant on cross-examination.
    2. Instructions—preponderance of evidence. An instruction to the jury to determine on which side the preponderance of the evidence lies from the 1 ‘ facts shown by the evidence and from all other facts and circumstances ’ ’ held cause for reversal.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed June 30, 1913.
    John Curtin, for plaintiff in error; Stahl & LeWald, of counsel.
    R. F. Kompare, for defendant in error.
   Mr. Presiding Justice Graves

delivered the opinion of the court.

Defendant in error began suit in the Municipal Court to recover from plaintiff in error money which he claimed he deposited with her for safe keeping. He had no account or memoranda of any kind showing when or in what amounts deposits were made or moneys withdrawn. Neither did he pretend to have any recollection of those things. He testified that he delivered some of it to her in person, but that he delivered the most of it to his landlady and told her to deliver it to plaintiff in error, but that all he knew as to whether she did so deliver it was that his landlady told him she did so. Defendant in error is an ignorant person and is not able to do even the simplest problems in addition. When asked, “Now can you add figures?” he replied, “No, I cannot add. I can just imagine.” And again when he was asked, “Do you know what would be necessary to add to $140 to make $270,” he replied, “No, I can just imagine that much.” He also testified, “I don’t know if I took money over there more than once or twice, for I did not keep track. I just kept in my head the whole amount. The whole amount was $370. I did not figure how much I handed her above $140.” He then testified that he withdrew at different times $70, $25, $40, $30, $40, $20, and $20, and that plaintiff in error told him she still had $265 of his money in her hands.

The attorney for defendant in error took the stand and testified that he had two conversations with plaintiff in error about the money defendant in error claimed she had belonging* to him; that in one of these conversations plaintiff in error told him she had $265 and in another that she had none. Plaintiff in error testified that defendant in error had deposited with her at different times $40, $30, $20, $20, and $20, a total of $130, and that she had given that all back to him in items of $70, $40, and $20, and gave the conversation that took place at the times these withdrawals were made. She also positively denies having told defendant in error, his attorney, or any one else that she still had $265 of his money, and that in fact she did not have a cent of it. She also positively denies that the landlady of defendant in error ever gave her any money for him. The parties and substantially all, if not all, of their witnesses were foreigners and in their business transactions, and even in the giving* of their testimony, conversed in the Slavonian language.

The verdict and judgment were for defendant in error for $265.

Where the evidence is sharply conflicting, it is important that the jury should be accurately instructed. In the charge to the jury in this case there are several faulty instructions either of which might well have misled the jury. Plaintiff in error complains of the following:

“You are the sole judges of the facts and the credibility of the witnesses and the weight to be given their testimony. In determining upon which side the preponderance or greater weight of the evidence is, the jury should take into consideration the opportunities of the several witnesses- for seeing or ascertaining from their own personal knowledge the things about which they testify; their conduct and demeanor while testifying; their interest or lack of interest, if any, in the result of the case; the relation or connection, if any, between the witnesses and the parties; the apparent consistency, fairness and congruity of the evidence; the probability or improbability of the truth of their statements; and from all these facts as shown by the evidence, and from all other facts and circumstances, the jury must decide on which side is the preponderance. ’ ’

This instruction informs the jury they are to determine on which side the preponderance of the evidence lies from the “facts shown by the evidence and from all other facts and circumstances,” which left the jury to roam around among facts not in evidence in order to determine where the preponderance of the evidence was. While in this case such a course would undoubtedly appeal strongly to the jury, the law is and the jury should have been instructed that they could only consider facts in evidence. This instruction alone is sufficient to make a reversal of the judgment imperative.

During the cross-examination of plaintiff in error some statement was made by her as to payments of money by the landlady of defendant in error to the husband of plaintiff in error, and as to the amount of the account on which it was paid at the time of such payments. To rebut her statement defendant in error was allowed over the strenuous objection of plaintiff in error to introduce the records and files in a case that had been disposed of in which the husband of plaintiff in error had sued the husband of the landlady of defendant in error. It was not offered as impeaching evidence and what it tended to prove is hard to imagine. It was clearly inadmissible for any purpose in the case at bar.

We dislike very much to remand this case and would not do so, but would enter judgment here if from .the chaos of irrelevant and incompetent matter before us we could determine what judgment should be entered. Upon a retrial it may be possible to establish the truth, whatever it may be, and by means sufficiently within the rules of law to satisfy the demands of justice.

The judgment of the Municipal Court is, therefore, reversed and the cause is remanded to that court.

Reversed and remanded.