text:
    Leonard Neyens, Appellant, v. Harry L. Hossack et al., Appellees.
    Gen. No. 5,011.
    1. Practice—section 18 of Practice Act of 1907 construed. This provision has no application to cases wherein the pleadings were settled prior to July 1, 1907.
    2. Negotiable instruments—what not promissory notes. Held, that the instruments, copies of which are set forth in the opinion, are not negotiable promissory notes, but that the same are mutual contracts.
    Assumpsit. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    Lester H. Straws and David G. Cairns, for appellant.
    Browne & Wiley and McDougall & Chapman, for appellees.
   Mr. Justice Willis

delivered the opinion of the court.

This was an action in assumpsit brought by appellant against appellees in the Circuit Court of La Salle county, upon two alleged promissory notes. Each was for the sum of $130. One was due 150 days after date, the other 180 days after date. Both were payable to the order of the Acme Food Company, and by it indorsed to appellant.

The declaration counted on each note or instrument and added the common counts. The first special count averred that, on February 21, 1903, appellees made their promissory note and delivered the same to the Acme Food Company, and by the style of Hossaek & Shanley promised to pay, 150 days after date to the Acme Food Company, $130 for value received, with interest after maturity; and that said Acme Food Company indorsed the said note to appellant. The second special count averred that appellees, on the said 21st day of February, 1903, made their promissory note and delivered the same to the Acme Food Company, and, by the style of Hossaek & Shanley, promised to pay, 180 days after date, $130 for value received, with interest after maturity, and that said Acme Food Company indorsed the same to appellant. A demurrer was interposed to the declaration and overruled. Appellees abided by the demurrer, the common counts were withdrawn, and judgment was entered for appellant. Afterwards, the judgment was opened, and on leave of court, appellees plead the general issue, and gave notice of special defenses. The common counts were refiled.

On the trial, appellant introduced two written instruments, and proof of the amount due thereon, with interest at the rate of 5% per annum, and rested. Thereupon, on motion of appellees, the court excluded the evidence, and directed the jury to return a verdict for appellees, and such a verdict was returned. A motion for a new trial was denied. Judgment was entered on the verdict, and plaintiff below appealed.

Appellant’s contention is, that the instruments introduced in evidence are promissory notes, and assignable, and therefore title passed to him by the assignment on the back thereof; and also, that if they were not assignable he could recover under section 18 of the Practice Act of 1907. This latter position is untenable, because this suit was begun in 190-1, and the pleadings were settled before July 1, 1907. Moreover, no attempt was made to make the pleadings conform to said section 18 of the Practice Act of 1907. Therefore we are clearly of the opinion that the controversy must be decided regardless of the act of 1907.

The writing’ declared on in the first special count, was in the words and figures following:

“Entered.
State, HI.
Town, Ottawa. 2-21-1903.
Acme Food Co., 161-167 South Canal Street, Chicago, HI. (448)
Please ship to Hossack & Shanley, Station, Ottawa, HI.
G-oods, as follows, F. O. B. Chicago, HI.
500 lbs. in 25 lb. Pails Acme Food........................
ft ft ft ft ft ft ft ft ft ft ft ft
Total..............................................................$130.00
Four per cent, discount if paid by May 1-03.
150 days after date, for value received, I, we, or either of us promise to pay to Acme Food Co., or order, One Hundred & Thirty Dollars, at Acme Food Co.’s office, Chicago, Ill. with interest after maturity until paid.
July 21-’03
Hossack & Shaklbt.

We, the undersigned, agree with Hossack & Shanley, of Ottawa, State of HI., executing above order, as follows :

You are expected and instructed to sell Acme Food strictly on its merits, as guarantee provided, and to warrant and guarantee said Food to each customer, if used and fed according to printed directions. And we agree in all cases, where your customers have fed to Food as aforesaid, and furnish us with their affidavit on the printed form furnished by us, to ship you, free of charge, F. O. B. on the cars at your station, as many pounds, not exceeding 500 lbs. to a single customer, as shall appear by such affidavit to have been used by such customer. It is understood that this warranty shall cover in each case only the first sale made to each individual customer. All blank spaces in said affidavit must be filled in ink before the same is executed, and the party executing same must clearly and explicitly state that he has fed said food in accordance with our instructions, detail the manner of feeding same, and that his stock has derived no benefit therefrom, otherwise this warranty is of no force or effect.

Acme Food Co.,

Sole Mfrs. Acme Food,

161-167 So. Canal St., Chicago, 111.

No Agreement Recognized Unless in

Writing on this Sheet.

Blayney, Salesman.

Form A.”

Indorsed on the back as follows:

“Pay to Leonard M. Neyens. Acme Food Co. By Geo. H. Simpson. Hang.”

The instrument declared on in the second count, and admitted in evidence, was like that in the first, except that the money was due in 180 instead of 150 days.

If the parts of these agreements providing for paying the Acme Food Company $130 in 150 days, and $130 in 180 days after date, could be severed from all that precedes, and all that follows them, they would constitute negotiable promissory notes. But they are not so severed or separated, and no authority to so sever them existed.

■ We are clear, first, that if any division of the papers can be made, it must include all the upper half, from the date down to and including the signature of appellees. If so considered, they are not unqualified promises to pay money, but are orders, addressed to the Acme Food Company, directing it to ship certain goods to appellees at Ottawa, Illinois, at certain prices, and th*e meaning of the promise to pay, embodied in the instruments, is that if shipped as ordered, appellees will pay the sum named in the schedules contained in the agreement. In legal effect, these orders or instruments are not different from letters of the same date, addressed to the Acme Food Company, saying, “Ship the subscribers or undersigned, free on board cars, addressed to the undersigned at Ottawa, Blinois, 500 lbs. Acme Food, in 25 lb. pails, at .06% amounting to $130 and another order of like kind and amount, and we will pay therefor $130 in 150 days, and $130 in 180 days after date.” Such would not be negotiable promissory notes. The price of goods so ordered could not be recovered upon the declaration in this case, for neither count thereof avers that the goods, in the instruments mentioned, were ever shipped, nor was there any proof that they were ever shipped.

We are of the opinion further that the entire document, both the parts signed by appellees, and the parts signed by the Acme Food Company, are entire contracts, and no different in legal effect from what they would have been if both parties had signed at the foot of the entire document. They are mutual contracts, containing mutual agreements, and the promise to pay a certain sum by one party on the performance of the other, and they cannot be severed and turned into negotiable promissory notes.

Our conclusion is that as the instruments set up in the special counts of the declaration were not, as appellant averred, negotiable promissory notes, and they being the only proof relied on by appellant to obtain a judgment, there was no evidence upon which a jury could find a verdict for appellant, and that there was no error in the trial court in directing a verdict for appellees.

The judgment is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Willis

license: Public Domain

text:
    Edward Guthrie, Appellee, v. The Empire Coal Company, Appellant.
    Gen. No. 5,015.
    Mines and Minees Act—what competent in defense to action for personal injuries. In an action for personal injuries, sustained by an employe while traveling along a haulingway in a mine, it is competent for the defendant to show that it had provided a man-way for a long distance, parallel with such haulingway, for the men to use in going to and from their work, that the plaintiff was forbidden to travel upon the haulingway, that there were conspicuous notices throughout the mine forbidding the men to travel upon the hauling or tripway and requiring them to take the manway, and that the plaintiff’s duties did not require him to travel along such haulingway.
    Action in case for personal injuries. ' Appeal from the Circuit Court of Mercer county; the Hon. William H. Gest, Judge, presiding.
    Heard in this court at the April term, 1908.
    Reversed and remanded.
    Opinion filed August 10, 1908.
    Church & Church, William T. Jackson and Cooke & Wilson, for appellant.
    W. J. Graham and O. E. Carlstrom, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

This was an action on the case brought by Edward Guthrie, appellee, against the Empire Coal Company, appellant, in the Circuit Court of Mercer county, to recover damages for injuries claimed to have been sustained by him on November 9, 1906, by reason of his being struck by a train of cars in appellant’s mine, in which he was employed.

Appellee’s declaration, as finally amended, contained three counts. Before appellee closed his proof, he dismissed the third count. The first count averred that in appellant’s mine, there was a single track hauling road, on which it moved by machinery its trains of pit cars; and that appellant wilfully violated the statute of the State of Illinois hy failing to place a conspicuous light on a train of pit cars; that while appellee was traveling on foot along said hauling road, said train of pit cars approached him. from behind, and that in consequence of appellant’s failing to have a conspicuous light on the train he was struck by the cars and injured. The second count charged appellant’s duty to cut in the side walls of the hauling road in said mine, places of refuge, not less than three feet in depth, and four feet in width, and not more than twenty yards apart, which should be kept clear of obstructions, and averred that no such places were cut in said side wahs, nor was there a clear space of at least three feet between the side of the pit cars, traveling on the hauling road and the side of the road, and that no other means whereby appellee might escape injury were provided; that while deceased was traveling on the hauling road a train of pit cars approached and struck him on the back, thereby injuring him. There was a plea of not guilty, a trial and a verdict of $4,200 for appellee. A motion for a new trial was denied, judgment was entered on the verdict, and the company prosecutes this appeal.

Paragraph (A) of section 21, chapter 93, of an act entitled “Mines and Miners,” Hurd’s R. S. 1905, contains three separate provisions. The first requires that on all single track hauling roads whenever hauling is done by machinery, and on all gravity or inclined planes, in mines, upon which the persons employed in the mine must travel on foot to and from their work, places of refuge must be cut in the side wall, not less than three feet in depth, and four feet wide, and not more than twenty yards apart, unless there is a clear space of at least three feet between the side of the car and the side of the road, sufficient for the safe passage of men. The third provision requires that a conspicuous light must be carried on the front car of every trip or train of pit cars moved by machinery, except when such trip is on an inclined plane.

The evidence shows that appellant operated a coal mine in which there was a main south entry or hauling way on an inclined plane, and that cars were operated by machinery thereon. Appellee was injured in said main hauling way by being struck by a train which did not have a light upon the front car, and there were no places of refuge in this main hauling way, nor was there such a clear space between the cars and the side of the road as the statute required. It further appeared from the evidence, that parallel with said main hauling way and but a short distance therefrom was a way provided for men to go to and from their work, variously called a road, traveling way, passageway and manway; that at every crossing, or wherever the entry way came to the manway signs were posted to the effect that no one was allowed on the trip road; and also a sign with a hand with a finger pointing to the manway, and reading, “This way to the manway.”

There was proof by two witnesses that appellee, prior to the accident, had at different times been found in the hauling way, and had been forbidden to walk therein and had promised not to do so any more. Appellee testified that the men were supposed to walk on the manway from their work to the shaft and that he understood it to be the place for him to leave the mine to go to the surface.

At the close of the evidence, the trial court excluded all portions of the evidence relative to the existence and condition of the way designated as “manway,” all evidence relative to the notices posted in the mine, and also all evidence of warnings or directions as to the way appellee should or should not take in the mine.

It will be seen that the statute requires such places of refuge in mines where the hauling is done by machinery on single track hauling roads, “upon which the persons employed in the mine must travel on foot to and from their work.” We are of the opinion that these words cannot be excluded from the statute, and make it a requirement that there shall be places of refuge in every hauling way, and we are further of the opinion that appellant was entitled to prove that it had provided a manway for a long distance parallel with the main hauling way, for the men to use in going to and from their work, and that appellee was forbidden to travel upon the hauling way, and that there were conspicuous notices throughout the mine forbidding the men to travel upon the hauling or tripway, and requiring them to take the manway. It is true that certain men who kept the main hauling way in repair or oiled the wheels over which the cable ran, had to go along the main hauling way to discharge their duties, but appellee did not belong to that class, and that work was done when the cars were not running. Again, there is proof that a part of the way along the man-way, there were rails and that sometimes cars were pulled along on these rails, upon which to load material which had fallen in the manway. These cars, however, were not operated by machinery and we do not see that the existence of the old track, a part of which had been taken up, is material.

It is urged that a man whose light had gone out as, appellee’s had, when coming to the track in the hauling way, would suppose it was the manway. Appellee testified that he knew he was in the hauling way. We are of opinion that if appellant furnished a reasonably safe and sufficient manway parallel with the hauling way, and had ordered and directed or warned its men working in the mine to walk to and from their work in the manway, and not walk upon the hauling way, then it was not required under the statute to build places of refuge in the hauling way. If our interpretation of the statute as applied to the evidence in this case is correct, it follows that the court erred in excluding this evidence. The evidence so excluded was not competent for the purpose of showing negligence on the part of appellee, as in actions under this statute for its wilful violation the negligence of the party injured is not a defense, but this excluded evidence tended to show that the hauling way was not the way in which the miners traveled in going to and from their work, and that they were excluded therefrom, and for this purpose it was competent.

Such instructions given by the court as assumed that there must be places of refuge in the hauling way, were erroneous. Appellee’s second and fourth instructions contained such assumption and were therefore defective.

In view of what we have already said, we deem it unnecessary to consider other questions raised by appellant.

We hold that under the third clause of said paragraph (A) of said section 21 of the Mines and Miners Act, a light was required on the front car of the train that struck appellee, but from this record we have no means of knowing under which count of the declaration the jury found for appellee. They may have found the verdict under the count relating to the absence of places of refuge; therefore the exclusion of this testimony was harmful error.

For the errors indicated, the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.


text:
    Paeda Farrenkoph et al., Appellants, v. Anna Holm, Appellee.
    Gen. No. 5,018.
    1. Fraternal benefit society—who entitled to proceeds of certificate. An affianced wife, named in the certificate of the deceased member as “eonsin,” is entitled to the proceeds of a certificate as against the heirs at law and next of kin, notwithstanding the rules of the order required the exact relationship of the beneficiary to be made known in writing before the issuance of the certificate, such an irregularity not being available to any one other than the society.

      2. Evidence—when party not incompetent by virtue of interest. A beneficiary named in the certificate of a fraternal benefit society is not incompetent as a witness in an action of interpleader involving the rights of conflicting claimants.
    3. Findings oe fact—when not disturbed. The findings of fact by a chancellor will not be set aside on review unless clearly and palpably erroneous.
    Bill of interpleader. Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    Fred E. Carpenter, for appellants.
    B. K. Welsh, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Anna Holm resided in the city of Bockford, Illinois, and John V. Smith (otherwise known as Valentine Trunk), boarded at her home for several years before and after the death of her husband, which occurred 'February 7,1902. On August 25,1906, Smith was accidentally killed. He left a beneficiary certificate dated August 29,1902, for $2,000 in the Order of the Columbian Knights payable to Anna Holm, designated therein as “cousin.” Anna Holm, appellee, claimed this fund, and later John Trunk, a brother, and Beatrix Trunk and Paeda Farrenkoph, sisters of deceased, appellants, also claimed the fund. On February 2,1907, the Order filed a bill of interpleader in the Circuit Court of Winnebago county, admitting its liability on the beneficiary certificate, and alleging its willingness to pay the full amount due thereon to the person legally entitled' thereto, and asking the court to determine to whom such payment should be made, and offering to pay said money into court, and there leave it subject to the order of the court. Appellee filed an answer in which she admitted that she was not a cousin to the said Smith, but claimed the insurance money in controversy as his affianced wife, and also as a dependent upon him.

Appellants, Paeda Farrenkoph, John Trunk and Beatrix Trunk Keller, filed a joint answer, claiming the insurance as heirs of said Smith, under the law of the Order, and denying that the said Anna Holm was either the affianced wife of, or dependent upon Smith. The court heard the proofs and held that the hill in interpleader was properly brought, and that upon payment of $2,000 into court, the complainant be discharged. The Order paid the $2,000 into court. The court found Anna Holm, appellee, to be the person named in the beneficiary certificate, and that she was the affianced wife of said Smith, and ordered the fund, less certain costs and $50 solicitor’s fees, paid to her. From that decree Paeda Farrenkoph, John Trunk and Beatrix Trunk Keller prosecute this appeal.

The Supreme Lodge of the Order of Columbian Knights was incorporated under an act of 1893, relating to benefit societies, as amended by an act of 1895. The certificate of incorporation provides that benefits shall be paid to the family, heirs, blood relations, affianced husband or wife, or to persons dependent upon the member. Section 250 of the by-laws of the Order reads as follows: “Each applicant shall enter upon his application the name or names, residence and relationship or dependence of the person or persons of the classes in the next section embraced, or of the charitable institution to whom or which he- desires his benefit paid, and the same shall be entered in the beneficiary certificate according to said direction.”

Section 251, among other things, provides that a benefit may be made payable to any one or more persons of any of the following classes, only :

í ¿ * * * * * * * * * # * *
11 Class Second.
To an affianced wife, or to any person who is dependent upon the member for maintenance (food, clothing, lodging or education); in either of which cases, written evidence of the affianced relation or nature of the dependency within the requirements of the laws of the Order must be furnished to the satisfaction of the Supreme Secretary before the beneficiary certificate can be issued.”

It is argued that the designation of Anna Holm as “cousin” was false and fraudulent, and therefore she was not entitled to take the fund. It will be observed that the statute under which the Order was organized, and its by-laws, recognize an affianced wife among the persons to whom such Order would pay benefits.

The proof shows that upon the agent asking Smith, at the time he applied for the certificate, the relationship of the beneficiary named, he said, “a sort of cousin,” then hesitated, and pledging the agent to secrecy, told him he was engaged to marry her. Thereafter, the agent of his own accord, said “we will put it down, 6cousin’ ” and did so. Information conveyed to an officer or agent of the order is information to the order. Boyal Neighbors of America v. Boman, 177 Ill. 27. Under such circumstances, the Order itself could not object to the validity of the certificate on the ground that the beneficiary was designated “cousin” instead of affianced wife. If it could, neither appellants nor appellee could recover on the certificate.

It is also argued, that the by-laws of the Order required such relationship to have been established in writing before the certificate was issued, and that there was no such proof. This, if true, was no concern of appellants, and would only redound to the benefit of the Order, to be used by it as a matter of defense, which it waived by issuing the policy and filing the inter-pleader, admitting its liability,' and by paying the money into court.

It is contended by appellants that the evidence did not warrant the finding of the court below that appellee was the affianced wife of Smith, and on this question it is claimed that the trial court erred in permitting appellee to testify, on the ground that she is made an incompetent witness by the law, and that by section 2, chapter 51, Hurd’s R. S. 1905, the incompetency is not removed. We are of the opinion that this contention cannot be sustained. Appellee is not a litigant in any way adverse to the estate of Smith. No one is suing or being sued as the representative of the estate of a deceased person. This litigation is between appellants and appellee in their own proper persons, and in relation to money which if they obtained they would acquire as their" own property. Therefore the reservation of the statute does not apply. McGrew v. McGrew, 93 Ill. App. 76; Firemen’s Insurance Co. v. Peck, 126 Ill. 493. The certificate was made payable to appellee, and the avails would not go to Smith’s estate. It would go directly to the beneficiary, and in no event was payable to the deceased or for his benefit, and was not subject to his debts. Stake v. Stake, 228 Ill. 630. If appellee could not take the fund as the affianced wife, or as a dependent upon Smith, appellants might, under class first, section 251 of the by-laws of the order. Their claim would arise by contract under the laws of the Order, which places them in the list of those who would take if the nomination of Mrs. Holm as beneficiary should fail. They would take nothing by descent or inheritance. Hence appellee was a competent witness in her own behalf.

It is contended that the court erred in refusing to allow appellants to show intimate and lover-like relations, not criminal in their nature, between Mrs. Holm and Smith previous to the death of Holm. The certificate was issued August 29, 1902, several months after Holm’s death, which occurred February 7, 1902, and after the engagement between Smith and appellee is alleged to have been entered into. It is therefore immaterial whether the relations between appellee and deceased were intimate and lover-like during the lifetime of Holm, or not, as long as they were not meretricious and criminal in their character.

The important question is whether appellee and Smith were engaged to he married at the time the certificate was issued, and whether that relation continued until Smith’s death. Smith told the agent of the Order when he obtained the certificate that he was engaged to Mrs. Holm. Mrs. Holm testified that they became engaged about four months after Holm’s death, and that- at the time of his death they were planning to go to Michigan and be married the coming fall. A short time before Smith’s death two young people were at the house, to whom they both said that they were going to be married soon. They also told a number of other people they were engaged to be married, while to various inquisitive persons they denied that they intended to be married.

It is argued that as Smith roomed and boarded with Mrs. Holm for nearly four years before her husband’s death, and that sometime before Smith’s death he ceased paying board and assumed the expenses of the household instead, and spent money freely upon Mrs. Holm’s little grandchild, the relation between them must have been immoral. No witness testified to any immoral act or conduct of either, and appellant’s argument on that subject has for its only foundation the fact that Smith continued to board with Mrs. Holm after her husband’s death.

It is contended that the evidence does not warrant the finding of the trial court and does not sustain the decree rendered. The evidence was heard by the chancellor in open court and was conflicting in some particulars. In such* cases, to authorize us to reverse as to a finding of fact, the error must be clear and palpable. Johnson v. Johnson, 125 Ill. 510; Rackley v. Rackley, 151 id. 332; Brown v. Stewart, 159 id. 212; Elmsted v. Nicholson, 186 id. 580; Fabrice v. Von der Brelie, 190 id. 460. We find no such error in this record. The facts found by the court that appellee was the party named in the beneficiary certificate, and the affianced wife of Smith, appear to us to be sustained by the evidence.

The decree is affirmed.

Affirmed.


text:
    John H. Savage, Administrator, Appellee, v. Chicago & Joliet Railway Company, Appellant.
    Gen. No. 5,022.
    1. Street crossings—degree of care required of traction companies at. It is incumbent upon those in control of a street ear to exercise a greater degree of care and watchfulness at street crossings than at other places along the route.
    2. Appeals and errors—when admission of particular evidence not subject to review. In the absence of an exception, the admission of evidence is not subject to review.
    3. Measure of damages—when instruction as to, in action for personal injuries, proper. An instruction given in an action for personal injuries conducted by the personal representative of the deceased injured party, held proper, which told the jury that in determining the amount of damages the plaintiff would be entitled to recover, if any, the jury might take into consideration all the facts, the nature and extent of the deceased’s physical injuries resulting from the injury, if any, his suffering in body and mind up to the time of his death, loss of health, if any, his loss of time and inability to work, if any, on account of such injuries, and find such sum as in the judgment of the jury, under the evidence, would be a fair compensation for the injury sustained, if any, less the sum paid him, if any, by the defendant for such injuries, etc.
    4. Release—when does not bar action for personal injuries. Held, that the release interposed as a defense in this action, did not bar a recovery in view of the manner in which it was obtained, namely, through an interpreter, under circumstances which justified the inference that its execution was made without full understanding of the effect.
    5. Verdict—when not excessive. Held, that a verdict for $3,000, after being reduced by remittitur to $1,500, in an action for personal injuries, was not excessive where it appeared that the person injured sustained as a result of the accident a fracture of the skull bone and clavicle, causing some mental disturbance and disability to work, etc.

      Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Albert O. Marshall, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    E. Meers, for appellant.
    Barr, Barr & Barr, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Bockdale is a village of about 950 inhabitants, three miles southwest of Joliet, Will county, Illinois. Moen avenue, its main street, runs east and west, and is intersected by Midland avenue. .Street cars operated by appellant, the Chicago & Joliet Bailway Company, from Bockdale to Joliet, run along Moen avenue, and the corner of Moen and Midland avenues is the most used street corner in Bockdale. About eleven o’clock p. m. on April 15,1907, Dominick Blasinouski came out of a saloon at the corner of Moen and Midland avenues, started to cross Moen avenue, and was struck by a car of appellant running east, and thereby sustained injuries, to recover for which he brought this suit in the Circuit Court of said county. On July 26, 1907, he filed a declaration containing two counts. The first count averred, that while he, in the exercise of due care, was in the act of crossing appellant’s street railway track at or near the intersection of ¡Midland avenue, appellant, by its servants, so negligently drove and managed the car that it struck and permanently injured him. The second count averred that the car was operated at a reckless and dangerous rate of speed in the night time, and that no gong or bell was sounded, and that on account of the dangerous and negligent rate of speed, the car struck him, fracturing his skull and clavicle. In January, 1908, Blasinouski died. On February 13, 1908, appellee, John H. Savage, was appointed administrator of his estate, and the same day Blasinouski’s death was suggested of record, and Savage was substituted as plaintiff. The title was amended and the ease afterwards proceeded to trial on the original declaration and appellant’s plea of not guilty. There was a verdict for appellee for $3,000. A motion for a new trial was made. The court required a remittitur of $1,500, which was made, and the motion for a new trial was denied. Judgment was entered on the verdict, and the company prosecutes this appeal.

Appellee’s proof was, that the car that struck deceased was running from twelve to fifteen miles per hour, while appellant’s motorman testified that its speed was from eight to twelve miles per hour, and the conductor, that it was twelve miles per hour. There was no light at the street crossing, and the evidence was conflicting as to whether a bell or gong was sounded as the car approached the crossing. The evidence is undisputed that one Joseph Lowery stood at the crossing, within three feet of the rails of the car line, and signaled the car to stop as it approached. While he was attempting to attract the attention of the motorman, deceased came out of a saloon on the corner, ran across the street, and was- struck by the car and thrown some distance. One witness for appellee testified that deceased was picked up fifty or sixty feet from the crossing; another that he was thrown over fifty feet east of the crossing, and twenty-three feet from the north rail. Appellant’s motorman testified that the man lay twenty or twenty-five feet from the east line of Midland avenue after he was struck, and seven or eight feet from the car track, and the conductor testified that he lay seven or eight feet from the car track. The evidence is conflicting as to the distance the car ran after it struck deceased. Two witnesses for appellee testified that it ran 200 feet, or half a block. Appellant’s motorman. testified that it ran a car length, and the conductor said two or three car lengths. Blasinouski died in January, 1908, of pneumonia, not a result of the accident.

It is incumbent upon those in control of a street caito exercise a greater degree of care and watchfulness at street crossings than at other places along the route. West Chicago Street Railroad Co. v. McCallum, 169 Ill. 240; Chicago Railway Co. v. Robinson, 127 id. 9. “Drivers, gripmen and motormen of street cars are obliged at all times to exercise a reasonable care in the conduct of their cars, but the requirement of reasonable care imposes upon them more exacting attention when they approach street crossings, where vehicles and pedestrians may always be expected in front of them. ^The failure under such circumstances to ring the bell, sound the gong, or give other proper warning * * * is undoubtedly evidence of negligence, to be submitted to a jury under all the circumstances/' whether there is an ordinance requiring such precautions or not. The increase of danger to the public at such crossings demands a corresponding increase of vigilance and energy on the part of such drivers, grip-men, and motormen. They ought to notice whether or not the track is clear when they approach such public crossings, and sound the gong as a warning." Chicago City Ry. Co. v. Tuohy, 196 Ill. 410.

It is true that the motorman and conductor contradicted appellee’s witnesses, and the motorman7s testimony tended to show that the car was not proceeding at an unusual rate of speed, and that the gong was sounded, and that there was a light on the head of the car, and that deceased jumped in front of the car. Whether the witnesses for appellee were more worthy of credit than those of appellant was a matter for the jury to decide. If the jury believed that the car which injured deceased was proceeding across Midland avenue at its intersection with Moen avenue, at an unreasonable and dangerous rate of speed, without giving any signal of warning to those crossing the street at that point, and if the jury further believed that under all the circumstances the motorman saw, or ought to have seen, the deceased approaching the track, and if he had kept a proper lookout could have avoided striking him, then their verdict was correct. We are of the opinion that the evidence fully supports the verdict.

Appellant complains that incompetent evidence was admitted. It appears that one witness testified that deceased was married, and had four children. There was no objection to this evidence, and it was after-wards excluded on motion of appellant with the consent of appellee. As no exception was taken, appellant’s argument does not raise the question for our consideration.

Complaint is made of the measure of recovery laid down by the court. On this question, the court told the jury, if they found for appellee, they would be required in determining the amount of damages appellee would be entitled to recover, if any, to take into consideration all the facts, the nature and extent of deceased’s physical injuries resulting from the injury if any, his suffering in body and mind up to the time of his death, loss of health, if any, his loss of time and inability to work, if any, on account of such injuries, and find for him such sum as in their judgment under the evidence would be a fair compensation for the injuries sustained, if any, less the sum paid him, if any, by appellant for such injuries, but that appellant could not recover in this suit for the death of deceased, but only damages up to the time of his death. The proof is clear that deceased did not die from the injuries resulting from the accident, and we think his pain and suffering, in mind and body, loss of health, loss of time, and inability to work were proper elements of appellee’s recovery, and the instruction laid down the true measure of recovery. In City of Joliet v. Conway, 119 Ill. 489, the court referring to a similar instruction said: “In this case there is no attempt to show that the family were dependent upon the plaintiff for support, care or maintenance, and the jury, we think, could not have so understood it, especially in Anew of the fact that the instruction expressly limits the right of recovery to such damages as resulted to the plaintiff alone.” We are of the opinion that in view of the foregoing instruction, the jury could not have been misled into assessing any damages except such as appellee’s intestate would have been entitled to recover had he survived.

Appellant complains that the court did not instruct the jury that there could be no recovery providing the death of BlasinousH was caused by the accident in question. The record does not show that appellant requested the court so to instruct the jury, but the fact is that this principle was properly presented to them in appellee’s instruction last considered.

If deceased had died from the injuries, then an amendment of the declaration alleging injury to the widow and next of kin would have been necessary before a recovery could have been had. Deceased dying from a cause not a result of the injuries, the action .survived to the administrator to recover what deceased might have recovered had he lived until the trial.

On May 16,1907, while Blasinouski was in the hospital to which he was taken when injured, appellant’s superintendent, William H. Huen, accompanied by the attending physician of deceased, who was in the employ of appellant, and an interpreter, visited him, paid him $50 and agreed to pay his doctor’s and hospital bill, and obtained from him a release from all damages resulting from the accident. This release was negotiated through an interpreter, and it is doubtful whether deceased was mentally capable at the time of understandingly entering into such an agreement. It is plain that the superintendent and the physician did not understand what was said by deceased and the interpreter, as the interpreter talked to deceased in the Russian language. There is the testimony of a number of witnesses who had known deceased for a long time, that he did not speak nor understand Russian, but only Lithuanian. The superintendent admitted that the release, aside from signing, was all written in his office before he went to the hospital. The jury doubted the bona fides of this transaction, and by their verdict practically condemned such conduct of appellant through its agents, and we think properly.

Deceased was injured on April 15, 1907, and died in January, 1908. He spent over four weeks in the hospital, and for nearly two weeks of that time he was in a semi-conscious condition. He had a fracture of the skull bone and clavicle, and showed some indications of mental disturbance, and during all the time he lived after the injury he was unable to work. The trial court deemed $1,500 not unreasonable compensation for his injuries, and we do not consider it excessive.

Finding no error in the record, the judgment of the trial court is affirmed.

Affirmed.


text:
    Charles L. Gardner, Appellee, v. Ben Steele Weigher Manufacturing Company, Appellant.
    Gen. No. 5,026.
    1. Verdicts—what does not fail to show preponderance of evidence. Where there are only two witnesses and they contradict each other directly as to vital facts, it does not 'necessarily follow that there is no preponderance of the evidence for the plaintiff.
    2. Instructions—how ambiguity may be cured. An ambiguous instruction may be cured by another instruction which makes the ambiguous element clear.
    3. Instructions'—when upon weighing of evidence properly refused. Held, that the following instruction, upon the subject of the weighing of the evidence by the jury, was properly refused:
    “The court instructs the jury that you are to look at the evidence in this case in a common sense light, and to judge it by that experience and observation of human affairs of which you are possessed as individual members of society, and will endeavor to arrive at the truth as the evidence shows it to be. If the claim made by either party is unusual, unreasonable and unnatural, out of the ordinary course of affairs, you are not required to take the same for granted upon slight evidence; nor should you so find, except upon proof of a reasonable character and which satisfies the mind.”
    4. Contracts—effect of clause “the receipt whereof is hereby acknowledged,” in sealed instrument. The words, “the receipt whereof is hereby acknowledged,” appearing in an instrument, though under seal and acknowledged, are, in effect, nothing more than a receipt and have no greater effect than a receipt not under seal.
    Assumpsit. Appeal from the Circuit Court of Peoria county; the Hon. Nicholas E. Worthington, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    Robert N. McCormick, for appellant.
    C. E. McNemar and A. Jacobson, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Early in February, 1906, appellee had perfected an improvement upon automatic grain weighing machines, and had taken some steps to obtain letters patent therefor, through Mr. La Porte, a patent solicitor of Peoria. About February 20, 1906, one Ashworth, then secretary and manager for the Ben Steele Weigher Manufacturing Company, appellant, and appellee entered into a contract for the sale of the invention to appellant. Later a misunderstanding arose relative to the amount of the consideration, and appellee brought this suit in assumpsit against appellant in the Circuit Court of Peoria county for what he claimed was due bim under the contract.

The declaration contained the consolidated common counts and three special counts. The first special count averred that on or about February 20, 1906, in consideration that appellee would transfer and assign to appellant all his right, title and interest in and to a certain new improvement in grain weighers which he had invented, and for which he was about to apply for letters patent, that appellant orally promised to pay appellee the sum of $1,000 in cash, and in further consideration for the transfer and assignment of said improvement, promised to manufacture or cause to he manufactured and sold, 500 of said grain weighers every year for the period of ten years, and to pay to appellee each year $2 for each grain weigher so manufactured and sold; and as a further consideration, appellant promised to transfer to appellee five shares of the capital stock of said appellant of the value of $500; and further averred that he did, on the same day, transfer and assign to appellant all his right, title and interest in and to said improvement, and that appellant disregarded its promises and undertakings in that behalf. The second • and third special counts were the same as the first, except that they omitted the averment relative to the shares of stock. Appellant filed a plea of the general issue.

That appellee invented the improvement to the grain weigher and sold it to appellant is admitted; but that he did not receive the contract price is contested.

Upon the trial, appellee, to support his contention, testified that in the early part of February, 1906, he had a conversation with one Ashworth, general manager for appellant, in which he asked Ashworth what he thought the invention ought to be worth; that Ash-worth said, “$1,000,” and offered him that amount for it, but that he said he would not take it at that time; that afterwards he had a second conversation with Ashworth while at work at the drop hammer in appellant’s .shop, at which a Mr. Lick was present; that later he had another conversation with Ashworth, who said that he would give $1,000 in cash, and have the machines built in Canada, with a royalty of $7 each, give him half the royalty, and bind appellant to make no less than 500 machines a year, and commence manufacturing the machine in 1907; that under such an agreement, he assigned all right and title to the invention over to the appellant; and that he and Ashworth went to La Porte’s office, a patent attorney for appellant, who had done some of the preliminary work in securing a patent for appellee’s invention; and that La Porte said: “This is the formal assignment we usually make, ’ ’ and read it over to him and he signed and acknowledged it; that he had no other talk with Ashworth after that time with reference to the contract until about a year before the trial, when he was discharged from appellant’s employ. At that time he told Ashworth he was ready to settle, and Ashworth said there was nothing to settle. Appellee further testified that he had never received one penny nor any other consideration for his invention. Lick testified that he heard in a conversation between appellee and Ashworth held at the drop hammer, that appellee was to receive $1,000. •

Ashworth testified for appellant and denied that he had any conversation with appellee, in which he agreed to pay him $1,000 if he would assign the invention, and denied that he said that appellant would obtain a royalty of $7 a machine in Canada, and pay appellee half of it. (This proof varies from the declaration as to the amount of the royalty.) He also testified that he did not remember that Lick was at their place on the day he had the conversation with appellee. He said that appellee stated that La Porte was making up the papers for the patent, and if appellant would agree to pay the expense of obtaining the patent, and give him his position back, he would agree to make the assignment to them; that appellee asked him to increase his wages, which he told him he would not do, and that he paid appellee one silver dollar for the assignment of the patent. On behalf of appellant, La Porte testified that he prepared appellee’s application for a patent, and made the assignment; that appellee said that he was unable to dispose of his invention to the Beeves people, and that he was going to re-enter the employ of the appellant, and in consideration of their giving him employment, and paying the expenses of obtaining a patent, he was going to assign it to them; that he made out and read over the assignment to appellee, and that appellant paid his expense in making application for the patent. On cross-examination, he said he had been acting as patent solicitor for appellant since they had been in business.

Appellant introduced in evidence an agreement dated February 20, 1906, under seal, .signed and duly acknowledged by appellee, reciting that appellee sold and assigned to appellant the full and exclusive right to an invention described in a specification prepared and executed on February 20, 1906, preparatory to obtaining letters patent to the improvement in grain weighers, which authorized the commissioner of patents to issue said letters to appellant as the assignee of appellee’s entire right, title and interest in and to the same; and that appellant covenanted therein to pay appellee the sum of one dollar and other valuable consideration, the receipt whereof was therein acknowledged.

In rebuttal, appellee denied that he was out of employment at the time and thought it the best thing to come back and assign the patent on condition of obtaining his position back, and that lie asked to have his wages increased or that anything was said about wages at that time. He denied that he told Ashworth at that time that La Porte was making the papers for the patent, and that, if appellant would agree to pay the expenses of the patent and give him his position back, he would assign the patent to it. He also testified that La Porte asked him what he was going to get for the patent, and that he did not tell him; but that he asked La Porte if he thought that the company would do as they agreed in the verbal contract; and he said they were honest and would do what they agreed..

The jury returned a verdict for appellee of $1,000. A motion for a new trial was denied, judgment was entered on the verdict and this appeal was taken by the company.

There was no evidence supporting the averment that appellee was to receive five shares of the capital stock of appellant as a part of the consideration for the assignment. The court instructed the jury that there could be no recovery for royalties, because for that purpose the suit was prematurely brought. Therefore, the only question is, should the verdict stand for the alleged cash consideration of $1,000.

It will be observed that the evidence was sharply conflicting on this question, it resting on the testimony of appellee, corroborated in a measure by Lick on the one hand, and the testimony of Ashworth, corroborated in some particulars by La Porte, and the assignment, on the other. This conflict necessarily involved the credibility of the witnesses. In some material particulars the testimony of appellee was directly contradicted by Ashworth, and from this appellant argued that appellee did not prove his case by a preponderance of the evidence, and that there can be no recovery. We do not understand the law to be that where there are only two witnesses, and they contradict each other directly as to vital facts, it necessarily follows that there is not a preponderance of the evidence for the plaintiff. On the contrary, we understand the law to be that while the plaintiff must prove his case by a preponderance of the evidence, the preponderance is not necessarily determined by the number of witnesses testifying. The jury are the judges of the credibility of the witnesses who testified in their presence and hearing and of the probability or the reverse of their testimony, and obviously may credit the testimony of one, and discredit that of the other. Therefore, the credibility of the evidence of appellee and Ashworth, and of the other witnesses, was for the jury to determine. This they did in favor of appellee, and their province in that particular should not be usurped by this court, and their finding should not be disturbed, unless they were in some material particular misled by the rulings of the trial court.

But two objections were urged to the action of the trial court in the admission of evidence. The first related to appellee’s knowledge of appellant’s patents on grain weighers. The second, to appellee’s idea of how many claims could be procured if a patent was granted. Neither of these questions was material to the issue, and there was no error in sustaining objections thereto.

For appellee, the court instructed the jury that they should find the issue for the plaintiff, if they believed from the greater weight of the evidence that defendant was indebted to the plaintiff as set out in the declaration, or some count thereof. This appellant urges as error because there was no evidence that appellee was to recover certain shares of the capital stock of appellant as a part consideration for the sale of the improvement ; and that the suit was instituted before royalties had accrued. But at appellant’s request the jury was instructed:

“That under the evidence in this case, even though you may believe therefrom that the defendant was to make five hundred machines a year, for which it was to pay the plaintiff three dollars and fifty cents a machine, the plaintiff cannot recover any part of that amount in this case for the reason that this suit was begun by the plaintiff before the time had expired at which it was to pay the yearly amount due on the basis above stated, and that at the time this suit was brought there was nothing due from the defendant to the plaintiff on such account, if you believe the defendant was to pay such amount, and upon that question you should find for the defendant. ’ ’

Appellant urges that appellee’s instruction was ambiguous. If so, we are of the .opinion that appellant’s instruction cured the ambiguity. It has been held in substance that an ambiguous instruction may be cured by another instruction which makes the ambiguous element clear. McCommon v. McCommon, 151 Ill. 428; City of Lanark v. Dougherty, 153 id. 163; Day v. Porter, 161 id. 235; Latham v. Roach, 72 id. 179; Village of Mansfield v. Moore, 124 id. 133; Hanrahan v. People, 91 id. 142.

In Chicago City Railway Co. v. Mead, 206 Ill. 174, the court held that instructions to the jury should be regarded as a connected series constituting a single charge, and that when so considered it must be clear that the jury have been misled or have drawn an improper inference from a single instruction, before the judgment will be reversed. How these instructions read together could have misled the jury or caused them to draw an improper inference from the evidence is not apparent.

Appellant’s argument directed toward appellee’s other instruction is substantially to the same effect and without merit.

Appellant urgently insisted that the court erred in refusing its offered instructions 1, 2, 3 and 4. The first instruction which sought to direct a verdict for appellant was properly refused for the reason that there was evidence in the record which, with all proper inferences to be drawn therefrom, fairly and reasonably tended to support the cause of action alleged in the declaration. Libby, McNeill & Libby v. Cook, 222 Ill. 206, and cases there cited; I. C. R. R. Co. v. Bailey, 222 Ill. 480.

The third read as follows:

“The court instructs the jury that you are to look at the evidence in this case in a common sense light, and to judge it by that experience and observation of human affairs of which you are possessed as individual members of society, and will endeavor to arrive at the truth as the evidence shows it to be. If the claim made by either party is unusual, unreasonable, and unnatural, out of the ordinary course of affairs, you are not required to take the same for granted upon slight evidence; nor should you so find, except upon proof of a reasonable character and which satisfies the mind.”

Appellant relies on People v. Geddis, 42 Ia. 264, to support this instruction. It was not for the jury to say whether appellee’s claim was an unusual one; or whether or not it was an unreasonable or unnatural claim; or whether or not it was out of the ordinary course of affairs. Contracts are not construed by such tests.. Courts of law do not make contracts for parties or decide whether or not a contract sued on is unusual or unnatural. In the absence of fraud, courts of law enforce contracts as made. The sole question for the jury to decide was whether the amount to be paid for the grain weighers was the amount claimed by the appellant. Moreover, to warrant a recovery in a suit of this character, the evidence need not satisfy the mind of the jury. It is sufficient if the evidence preponderates, although but slightly, in favor of the verdict. The Iowa case relied on was a suit to recover on a penal bond for a breach of its condition, the issue being that one of the obligors was non compos mentis at the time of the execution of the bond, and the question being whether or not certain acts of the defendant were unreasonable, unusual, or out of the ordinary, when tested by the light of the experience of other men under similar circumstances. In the case at bar the sanity of the parties was not in issue, 'and for that reason, if for no other, the principle announced in the Iowa case had no application to the facts in this case, and the instruction was properly refused.

We will not extend this opinion to consider in detail appellant’s second and fourth instructions, except to say that they were not applicable to the facts appearing in the record, and were argumentative and subject in some measure to the criticism that we made to instruction, three, refused.

No objection was made that extrinsic evidence was admitted to contradict, explain or vary the terms of the assignment relative to the consideration mentioned therein.

If the words, “the receipt whereof is hereby acknowledge!, ’ ’ appearing in the assignment, though under seal and acknowledged, be treated as a receipt, they have no greater effect than a receipt not under seal. As said in Elder v. Hood, 38 Ill. 533: “The rule is well recognized both by the courts of Great Britain and in this country, such an acknowledgment, in a deed of conveyance, is but a receipt for money, and, like any other receipt, is subject to be contradicted, explained, or varied in its terms by extrinsic evidence. Whilst the deed must speak for itself in all other respects, the acknowledgment of the payment of the money is only treated as a receipt, and is governed by the rules of evidence applicable to such instructions.” The question how much weight should be attached to the receipt should be left entirely with the jury. Herkimer v. Nigh, 10 Ill. App. 375. This principle was conceded by both parties and the jury were accurately instructed as to the effect of a receipt.

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

Affirmed.


text:
    Sarah Mohler, Appellee, v. Luther H. Grange, Appellant.
    Gen. No. 5,035.

      Estoppel—when arises to prevent assertion of title. Where the owner of property allows another to appear as the owner thereof, and innocent persons are thus led into dealing with such apparent owner, they will he protected. By such act a real owner is precluded from disputing, as against them, the existence of the title which he suffered to he vested in the party dealing with them.
    Action commenced before justice of the peace. Appeal from the County Court of Du Page county; the Hon. Mazziki Slusseb, Judge, presiding.
    Heard in this court at the April term, 1908.
    Reversed and remanded.
    Opinion filed August 10, 1908.

      Botsford, Wayne & Botsford, for appellant.
    Charles W. Hadley, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Appellee instituted suit against appellant before a justice of the peace of DuPage county to recover the price received by appellant from the sale of chickens, and obtained a judgment. Appellant appealed the case to the County Court of said county where a trial was had, resulting in a verdict for appellee for $29.65. A motion for a new trial was denied. Judgment was entered on the verdict, and appellant prosecutes this further appeal.

Bufus Mohler, appellee’s husband, was a tenant on a farm owned by one Dalton near Wheaton, Illinois. Dalton resided at Indianapolis, and appellant was his agent and attorney at Wheaton. Mohler got in arrears on his rent and had mortgaged his chattel property to some one else. Dalton came to Wheaton and insisted his rent should be paid. Dalton, Mohler and appellant had several interviews. On Mohler’s suggestion, it was arranged that he should advertise his chattel property on the farm for sale, and that appellant should attend the sale, act as clerk, receive the money, pay the chattel mortgage indebtedness, and apply the balance of the proceeds of the sale on the rent and other obligations of Mohler, which appellant represented. Mohler advertised the sale by posting sale bills signed Bufus Mohler, describing the property on the farm, including the poultry. Mohler requested that the sale be held in his own name because some of his Dunkard friends would be there, and he did not want them to know that he was obliged to sell out. Some of the chickens were sold and paid for, and the money received by appellant. With the money received from the sale, appellant paid the chattel mortgage indebtedness, surrendered the notes and mortgage to Mohler, and applied the balance on the rent and on Mohler’s other obligations. Mohler was to receive any money paid in after the sale and turn it over to appellant. Two or three days after the sale Mohler came to appellant’s office, paid him some money collected after the sale, received his notes and mortgage and stated he would bring in the rest of the money as soon as he collected it. He never paid appellant any more money. A week or two after the sale, and after appellant had paid out all the money received from it, which was insufficient to pay the rent and Mohler’s other obligations in appellant’s hands, appellee came to appellant, made a claim of ownership of the chickens sold and demanded the money received for them, which appellant refused to pay her. Appellee admitted she read the sale bills and that the poultry she claimed was mentioned therein, and that the bills were signed by her husband, and that she supposed the word “owner” was written under his name; and that appellant was clerk of the sale, received and carried away all the proceeds, and that appellant made the settlements with the purchasers, and that she made no inquiry of appellant who bought, or how much the chickens sold for, and that she was present at the sale, and heard the auctioneer state she wanted a choice of a dozen and a half chickens out of the flock.

Appellee bases her contention that appellant had notice that she owned the chickens upon a conversation had at dinner on the day of the sale. It appears that after the sale was partly completed and before the chickens were sold, dinner was served in a room about 12x14 feet, and twelve or fifteen men sat at the table. Five or six women were about the room and other persons were coming and going in the room. Appellant sat at one end of the table and the auctioneer at the other. Just as they rose from the table the auctioneer said, “Now we will sell the chickens.” Mohler said, “I have nothing to do with the chickens, they belong to the woman.” Appellee said she had not decided whether she would sell them that day or not; she thought she might get more on the market. To that, three men replied, “No, you will get more to-day.” She said “Let them go. ’ ’ No witness testified that appellant heard the conversation between the auctioneer, appellee and the other persons. A witness did testify that appellant was in the room. Some of the witnesses testified there was not much conversation going on, others that there was conversation all over the room. Appellant testified he did not hear the conversation. His brother, who sat next to him at the table, testified that he did not hear it. With appellant sitting at one end of the table, and appellee and parties engaged in conversation at the opposite end, with a number of people between, a general conversation going on in the room, and with people moving about and in and out of the room, appellant may not, as he says, have heard appellee’s talk relative to the chickens. In fact, counsel for appellee admits in his argument that there is no positive proof the appellant heard the conversation. Moreover, in support of appellant’s claim that he did not hear appellee talk about her ownership of the chickens, Mohler, as they were getting up-from the table came to appellant, and said, “My wife would like to reserve a dozen chickens from the sale, if you are willing.” Appellant said “All right.” Mohler then said, “Come to think of it, she would like to reserve a dozen and a half, if you are willing, ’ ’ to which appellant consented. This was not calculated to charge appellant with notice that the chickens were the property of appellee, but tended more to confirm his belief that they were subject to sale for the payment of her husband’s debts, as previously arranged.

The auctioneer stated when he sold the chickens that Mrs. Mohler would be permitted to select a dozen or a dozen and a half of chickens from the flock. Whether it was a dozen or a dozen and a half no witness states positively.

We do not think this evidence warranted a verdict for appellee even if she owned the chickens, which is exceedingly doubtful for lack of evidence on that subject, for the reason she allowed her husband to advertise them for sale, and stood by and saw them sold, without giving notice that she owned them. She knew appellant received the money, and let him carry it away without telling him the chickens were hers, and allowed appellant to pay it on her husband’s debts before she claimed it as her own.

In Anderson v. Armstead, 69 Ill. 452, the court sáid: "The law is familiar, that where the owner of property holds out another, or allows him to appear, as the owner of, or having full power of disposition over the property, and innocent parties are thus led into dealing with such apparent owner, or person having the apparent power of disposition, they will be protected. Their rights, in such cases, do not depend upon the actual title or authority of the party with whom they have directly dealt, but they are derived from the act of the real owner, which precludes him from disputing, as against them, the existence of the title or power he' caused or allowed to appear to be vested in the party upon the faith of whose title, or power, they dealt.” Higgins v. Ferguson, 14 Ill. 268; Donaldson v. Holmes, 23 id. 83; Schwartz v. Saunders, 46 id. 18.

In Springer v. Kroeschell, 161 Ill. 368, though the question under consideration was not personal property, the court states the general proposition as follows: 4 4 Where the owner of property allows another to appear as the owner thereof, and innocent persons are thus led into dealing with such apparent owner, they will be protected. By such act a real owner is precluded from disputing, as against them, the existence of the title which he suffered to be vested in the party dealing with them.” This authority was followed and approved in Bastrup v. Prendergast, 179 Ill. 553; Bank of Montreal v. Dewar, 6 Ill. App. 294; and in Prendergast v. McNally, 76 Ill. App. 335.

We are therefore of the opinion that, under the evidence as it appears in this record, it is clear that appellee is estopped from maintaining the present judgment.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    Peter C. Pell, Appellee, v. Joliet, Plainfield & Aurora Railway Company, Appellant.
    Gen. No. 5,038.
    1. Negligence—how question as to whether permitting arm to project from street car constitutes, to he determined. It is a question of fact whether a person riding in a street car who places his arm upon the window sill, even if it extends slightly outside, does so in a manner hazardous under the circumstances, or whether he exercises reasonable care for his own safety.
    2. Passenger and carrier—what not competent to affect rights of former. A passenger is not hound by a secret arrangement of which he has no notice.
    Action in case for. personal injuries. Appeal from the Circuit Court of Will county; the Hon Frank L. Hooper, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    John M. Raymond, John K. Newhall and Garnsey & Wood, for appellant.
    J. M. Downey, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Appellant, the Joliet, Plainfield and Aurora Railroad Company, operates an electric interurban railroad between the limits of Joliet and Aurora. In the city of Aurora, it used under contract, certain tracks of the Elgin, Aurora and Southern Traction Company. On July 22, 1906, appellee, Peter C. Pell, purchased a ticket of appellant in Joliet, entitling him to transportation over appellant’s road to Aurora and return. He went to Aurora in the forenoon, and about 5:30 p. m. boarded a car of appellant, bound for Joliet, at its terminal station in Aurora, and while riding south along Lincoln avenue in said city, with his left hand resting on the window sill of an open window of the car, and his fingers over its outside edge, a car going north on the other track passed and the skid for holding the bars on the outside of the windows of the passing car struck the back of his hand, cut a groove across it, dislocated the wrist and otherwise injured his hand and arm. On August 26, 1906, he brought this suit in the Circuit Court of Will county to recover damages for the injuries so sustained. The declaration contained four counts, and averred negligence on the part of appellant in operating its cars too closely together; negligence in failing to provide guards or screens on the car windows; negligence in failing to give warning to the passengers when cars were approaching each other; negligence generally in the operation and management of the cars and road. Each count averred that plaintiff was exercising due care when injured. Appellant filed a plea of not guilty, and notice therewith, that it would offer in evidence a contract between it and the Elgin, Aurora and Southern Traction Co. and proof that at the time of the alleged injuries to appellee, it neither owned the track nor had control of the cars in question in this case. There was a trial and a verdict for appellee for $1,200. A motion for a new trial was denied, judgment was entered on the verdict, and the company appeals.

The evidence shows that the car in which appellee was riding contained a smoking and a chair compartment. The chair compartment was provided with cane seats running crosswise, with an aisle in the center. The smoking compartment, which was located at the front end of the car as it proceeded towards Joliet, was provided with two cane seats which -extended across the rear. In front of the cane seats were two long seats on either side, facing the center of the car. These longitudinal seats were hinged and could be fastened against the side of the car to make room for baggage or freight. Outside the windows, which were opposite the cane seats in both compartments, were three iron bars, about three inches apart, which extended from nine to twelve inches above the windowsill. The windowsills opposite the cane seats in both compartments were seven inches wide, and those at the front window of the smoking compartment were seven and three-fourths inches wide. In the smoking compartment, just above the longitudinal seats was an iron grating which was pushed down to protect the window when the compartment was used for freight or express.

There is some conflict in the evidence relative to the seat occupied by appellee when injured. He testified that when he first entered the car, he sat in the cane or crosswise seat on the right of the smoking compartment, but afterwards moved to the front longitudinal seat on the left side, where there was a window open and the grating up. He put his knee on the seat, laid his arm on the window sill, extending it over the sill an inch or two. Four witnesses for appellee testified that he was sitting when injured in the longitudinal seat at the front end of the compartment, and one witness for appellee testified that he sat on the left side near the rear. Two witnesses for appellant testified that he sat on the cane or crosswise seat in the rear. Which seat he occupied when injured was a question of fact for the jury, and we are of the opinion that the evidence justified the finding that he was sitting when injured on the longitudinal seat at the front end of the smoking compartment.

At the close of appellee’s proof, and again at the close of all the testimony, appellant moved the court to exclude the evidence and instruct the jury to find appellant not guilty. The court denied the motions, and refused the instructions, which is urged as error on the ground that the evidence shows as a matter of law that appellee was guilty of contributory negligence, and therefore barred from recovery.

In our opinion, it is a question of fact whether a person riding in a street car who places his arm upon the windowsill, even if it extends slightly outside, does so in a manner hazardous under the circumstances, or whether he exercises reasonable care for his own safety. It is incumbent upon him so to conduct himself as not to expose his limbs to collisions from obstacles outside. He must be entirely free from negligence which contributes to the injury. It is for the jury to say, under all the circumstances, whether a person is wanting in due care or not. This must be so unless the court is authorized in saying as a mtter of law in every case, that one who extends his hand or arm in the slightest degree out of the window of a car while in motion, is chargeable with negligence and cannot recover, if injured by the negligence of the servants of the company operating the car, while in this position. When we consider the manner in which street or electric interurban cars are constructed, with windows that can be opened, and at such a height from the seat that passengers will unconsciously place their arms upon the sill for support, there being no bars before the window to prevent their doing so, then to say that if a passenger’s hand or arm extends the slightest degree beyond the outside edge or surface he is wanting in due care, and that if he is injured he cannot recover, appears to us to be laying down a very arbitrary and unreasonable rule of law. There should be more or less space between the outside of the car and any structure erected by the side of the track, or any passing car, to allow for the motion of the car. Passengers know this, and regulate their conduct accordingly. They do not suppose that managers of the road suffer structures to be so placed or tracks to be so laid as barely to miss structures or cars while passing. Of course a case might be supposed where negligence would be clearly apparent from the circumstances. If a passenger rode with his body half out of the window, or with his arms or feet so protruding as inevitably to expose him to danger, this would be negligence per se. In this case there was no proof that such was the conduct or position of appellee. There was proof that his fingers were on the outside surface of the car and possibly some portion of his arm may have extended beyond the outside surface of the car. Counsel for appellant has cited us to a number of authorities to support their contention that where the plaintiff had his arm on the windowsill and his fingers outside the window when injured, the question of whether his conduct was negligence became a matter of law for the court to decide, and not one of fact for the jury—none, however, from the courts of this state. They rely principally upon Interurban R. & T. Co. v. Hancock, 75 Ohio State 88,- which in some of the facts was much like the case at bar. It appears, however, that in that case there were four bars across all the windows of the car in which the plaintiff was riding, the top bars being approximately twelve inches above the windowsill. The plaintiff placed his arm on the top and over the bars, and it was struck by a passing car. The distance between the car on which he was riding and the handles of the car that struck him was three or four inches. There the court held as a matter of law that a person on an interurban car who permitted his arm or any part thereof to extend or project out beyond or over the rods barring an open window, and was injured by such act, was guilty of contributory negligence. The learned writer of the opinion in that case stated that the opposite doctrine was maintained in a number of decisions, referring directly to Spencer v. Milwaukee & St. P. du Ch. R. Co., 17 Wis. 503, and C. & A. R. R. Co. v. Pondrom, 51 Ill. 333, holding that the latter case was not authority in Ohio because the question there turned on the doctrine of comparative' negligence. The rule laid down in the Hancock case is not applicable to the facts in the case at bar; and that in the Pondrom case, though announced on the doctrine of comparative negligence, no longer recognized in this state, is not entirely inapplicable to the facts in this case.

In the case at bar, it is far from being clear that appellee was guilty of any negligence in putting or resting his arm upon the windowsill in the manner he did, and for the court to say he was guilty of negligence which contributed to the injury would be usurping the province of the jury.

On the trial, appellant offered in evidence an instrument in writing dated August 5, 1904, between the Elgin, Aurora & Southern Traction Company and appellant, for the purpose of showing the use, control and management of the cars on appellant’s line, and that the car in question was rented to, and under the exclusive control and management of the officials and agents of the Elgin, Aurora & Southern Traction Company on the day of the accident. The instrument provided that the Elgin, Aurora & Southern Traction Company should receive the cars of appellant at its point of connection with the Fifth street line of the Aurora Company, and convey all passengers of appellant from that point to the transfer station of the Aurora Company, and also to carry passengers destined to points on appellant’s line from said transfer station to said connecting point; and that the Aurora Company should convey so far as it was able under municipal and statutory ordinances and regulations, express, mail and other matter destined to and from points on the line of the railway of appellant; and that the cars of appellant necessary for such service were leased to the Aurora Company. It also provided that the employes while operating said cars for the Aurora Company over its lines should be considered the employes of the Aurora Company, subject to its rules and regulations, and paid by appellant. This contract the court excluded, which appellant now urges as error. In City of Aurora v. Elgin, Aurora & Southern Traction Co., 128 Ill. App. 77, it was held that this contract did not confer lawful authority on the Joliet Company, appellant here, to transport freight, express, baggage and mail in its cars along the street car tracks of the city of Aurora. On appeal to the Supreme Court this holding was approved. It was further held that the authority of the Aurora Company was not broad enough to confer upon appellant the right to transport its passenger cars over the line in question. City of Aurora v. Elgin, Aurora & Southern Traction Co., 227 Ill. 485. In view of these holdings, in our opinion, the contract was invalid. If valid, it was incompetent for the reason that a passenger is not bound by a secret arrangement, of which he has no notice. Moreover, the evidence is undisputed that the motorman and conductor in charge of the car in question at the time appellee was injured were employed and paid by appellant, and that the car in which he was riding and the car that injured him belonged to appellant. We conclude that there was no érror in not admitting the contract in evidence.

Appellant urges that the court erroneously struck from the files its notice filed with the general issue. The notice was for the purpose of admitting in evidence without a special plea, the contract between appellant and the Elgin, Aurora & Southern Traction Co. This contract not being admissible in evidence, there was no error in striking the notice from the files.

Appellant insists that the court erred in giving instructions 1, 2, 3, 4 and 5 for appellee, but argues only the second and fourth. We have carefully considered the objections to these instructions, and have reached the conclusion that they are not open to appellant’s criticism. Appellant also complains of the refusal of several of its instructions, but argues only the fifth. Upon an examination of this instruction we conclude that it was properly refused.

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

!Affirmed.


text:
    H. A. Brooks et al., Appellants, v. Sylvester Brierton, Appellee.
    Gen. No. 5,041.
    1. Verdicts-when not disturbed as against the evidence. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    2. Evidence-when unresponsive answer not ground for reversal. An answer not responsive to a question, however improper such answer may in fact be, cannot be successfully urged as error where no motion was made to strike it out.
    Assumpsit, Appeal from the County Court of Lee county; the Hon. Robert H. Scott, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    John P. Devine, for appellants.
    John E. Erwin and John S. Dornblaser, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

This was an action in assumpsit brought by H. A. and C. C. Brooks, lawyers and co-partners, in the County Court of Lee county, against Sylvester Brier-ton, to recover on the quantum meruit for legal services alleged to have been rendered Brierton. The declaration contained the common counts. The plea was non assumpsit. The trial was on the issue -tendered by the plea and the verdict was for appellee. A motion for a new trial was denied. Judgment was entered on the verdict, and for costs against the plaintiffs, and they appeal.

From the evidence, it appears that appellants were employed by appellee to adjust certain difficulties between himself and one Price, arising out of a purchase of land in Arkansas. In 1905, appellee bought a farm of Price, and paid for it $10,900. In the summer of 1906, he concluded he had been defrauded by Price and his agents. Later, a settlement was agreed upon through another party, which failed. Afterwards, appellant, H. A. Brooks, induced Albert Brierton, a son of appellee, to bring his father to appellants * office, where, as appellee and his son testified, Brooks offered to get the money back for $25. This Brooks denied, and testified that he was first employed by appellee to investigate the facts and determine whether or not Price and his agents could be prosecuted criminally, and for such services he was to be paid $25; that he investigated the case, and told appellee that the crime was committed in Arkansas and that the prosecution would have to be in that state, and that then appellee employed him to recover the money paid for the farm, which he undertook to do, with the understanding that his charge would be satisfactory. Appellee and his son denied that they sought to prosecute Price and his agents criminally. Appellant, H. A. Brooks, had some correspondence with Price, and some conference with his agent at Bixon, and a verbal offer was made by Price to settle with appellee. Later, the relation of the parties was severed, and the Brooks settlement was never consummated. Appellee employed other lawyers who partially carried through a settlement, somewhat more advantageous to appellee. Appellants contend that appellee abandoned the arrangement without cause or notice. Appellee claims that appellant, H. A. Brooks, became angry because appellee wanted a certain notary to take an affidavit he thought they might need, and threw up the case on that account. The evidence was sharply conflicting as to the terms of appellants’ employment, what compensation they were to receive, how the relation of client and attorney was terminated, and who was blamahle therefor. These were all questions of fact, upon which a verdict for appellee, approved by the trial court, who saw and heard the witnesses, must stand, unless it is clearly apparent that it is against the weight of the evidence or that there was some material error in the admission or exclusion of evidence, or in the instructions given to the jury.

It is not argued that the jury were erroneously instructed or that there was any error in the ruling’ of the court except in the admission of hearsay evidence contained in an unresponsive answer. The record discloses that appellee was asked to state what took place between him and appellant, H. A. Brooks, and he related over appellants’ objection a conversation between himself and his son Albert, concerning a conversation which Ms son Albert had had with said Brooks in the absence of appellants. This answer was not responsive and was hearsay, but appellants’ objection thereto was general and no motion was made to strike out such unresponsive answer. An answer not responsive to the question cannot be successfully urged as error, however improper such answer may in fact be, where no motion was made to strike it out. City of Chicago v. Didier, 131 Ill. App. 406. Moreover, in this same answer, appellee related a conversation he had with appellant, H. A. Brooks, in which Brooks told appellee the same thing which Ms son Albert had said that Brooks told him in the conversation related in the unresponsive part of the answer. As the conversation between appellee and appellant, H. A. Brooks, was in the same language as the one between appellee’s son Albert, and said Brooks, related by appellee in the first part of his answer, we think no serious harm was done thereby.

The judgment is therefore affirmed.

'Affirmed.


text:
    Matilda Walker, Appellant, v. Chicago & Joliet Electric Railway Company, Appellee.
    Gen. No. 5,043.

      Instkuctions—when, upon credibility of witnesses, erroneous. An instruction is erroneous which authorizes the jury to disregard the entire testimony of a witness merely because they may think he has either belittled or exaggerated some material fact to which he has testified.
    Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Aíbebt O. Mabshaxl, Judge, presiding.
    Heard in this court at the April term, 1908.
    Reversed and remanded.
    Opinion filed August 10, 1908.
    Edward Corlett and George J. Clare, for appellant.
    E. Meers, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Appellee, the Chicago & Joliet Electric Railway Company, operates a street car line on Hickory street in the city of Joliet. This street crosses Division street near St. Joseph’s hospital, and Moran street a few blocks farther north. On March 19, 1907, at about 8:30 p. m., appellant, Matilda Walker, with two children, four and six years of age, returning from St. Joseph’s hospital, where one of her children was ill, boarded appellee’s north-bound Hickory street car at Division street. It started before appellant was seated and she fell against some part of the car. That night she gave premature birth to a child, and the next morning was taken into a hospital. April 4, 1907, she brought this suit in the Circuit Court of Will county against appellee to recover damages for injuries claimed to have been sustained by reason of the accident, and filed a declaration containing three counts. Each count contained averments of due care on the part of appellant. The first count also alleged that while appellant was passing from the platform to the inside of the car, appellee, by its servants, negligently caused it to be suddenly started and violently jerked without warning to appellant, and before appellant was able to obtain a seat, and thereby she was thrown upon the platform and against the vestibule. The second count averred the duty of appellee to give appellant an opportunity of safely seating herself, and to stop the car a reasonable time to enable her to do so, and to then start it carefully, and that this appellee failed to do. The third count charged that appellee, without warning to appellant, negligently caused the car to be violently jerked and otherwise negligently managed, by reason of which appellant was thrown and permanently injured. Appellee filed a plea of not guilty. There was a trial, resulting in a verdict of not guilty. Motions for a new trial and in arrest of judgment were overruled, judgment was entered in the verdict, and this appeal was taken.

Appellant and appellee’s conductor were the only witnesses to what happened when appellant boarded the car. Appellant testified that she had not been on the platform more than one or two minutes when the car started with a jerk, and that she was thrown so that her back, hip, and side struck the back of the car; that the car jerked a second time just as she had stepped inside the door, and she was thrown against the frame of the door, striking her hip and back, bruising and discoloring them. The conductor testified that just as she was stepping inside, the car started, and she seemed to be unsteady and went against the side of the door, then fell back in his arms; that there was no jerk as the car started, and that appellant made no complaint that she was hurt. The motorman testified, after refreshing his memory from his time book, that at po time between eight and nine o’clock on the evening of the accident did the car he was operating start with a jerk. A Mrs. Ebner testified for appellee that she was at appellant’s house on the evening of the accident, that appellant was very sick and weak, and when asked the cause, told her that she carried her four-year-old boy upstairs at the hospital that evening; that about two weeks afterward she read in the paper that appellant had been hurt in a street car; that she went to see appellant at the hospital, and asked her why she had not told her before, and that appellant said she forgot to tell her that a car had dragged her up to Moran street. Appellant denied that she told Mrs. Ebner, on the evening of the accident, that she carried her boy upstairs at the hospital, but said that it was about three days before. Appellant after laying a proper foundation, sought to show that Mrs. Ebner had made the statement to the witness 0 ’Leary that if appellant’s case ever came to trial she would do all she could to beat her, but was not permitted to do so. Appellant excepted. It was error to refuse to admit this testimony. On cross-examination appellant testified that she had had four miscarriages before this, the last one being eight years before. The doctor called to attend appellant testified that she had a miscarriage on the night of the accident, and that he found no bruises, scratches or discolorations; that he treated her for the miscarriage up to May 1st. A doctor called by appellant, in answer to a hypothetical question, assuming as facts appellant’s theory of the case, testified that the miscarriage was probably due to the injury.

The court by the sixth instruction, given at the request of appellant, directed the jury that if they believed any witness had wilfully and knowingly exaggerated any material facts or circumstances for the purpose of deceiving, misleading, or imposing upon the jury, either as to the nature or extent of the injury in question, then the jury had the right to reject the entire testimony of such witness, except in so far as it may be corroborated by other evidence or facts and circumstances in evidence in the case. This instruction did not state the law, which has never sanctioned such a proposition as that a jury may disregard the entire testimony of a witness whom they think has either belittled or exaggerated some material fact to which he has testified. Chicago City Ry. v. Allen, 169 Ill. 287. The doctrine falsus in uno falsus in omnibus is only applied as a rule of law to a witness who has knowingly and wilfully sworn falsely to some fact material to the issue. C. & S. Co. v. Kline, 220 Ill. 334. If the jury concluded that appellant knowingly exaggerated the extent of her injury, however slightly, for the purpose of imposing on the jury, they were authorized by this instruction to disregard all her testimony, and the same would he true of any witness testifying in her behalf. The instruction was erroneous and harmful.

For the errors indicated, the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.