text:
    In the Matter of the Estate of Daniel J. Davis, Deceased. E. G. Tisdale and O. D. Tisdale, Appellants, v. Maud R. Davis, Administratrix of the Estate of Daniel J. Davis, Deceased, Appellee.
    Gen. No. 21,180.
    1. Cotjbts, § 105

      —when Probate Court equitable jurisdiction to reinstate and allow claim. Probate Court has equitable jurisdiction to enter order on oral motion reinstating and allowing a claim which was dismissed, and a formal bill in equity is not necessary for such purpose.
    2. Exeotjtobs and administbatobs, § 248*—what constitutes sufficient exhibition of claim to prevent bar of statute of limitations. Where claim in Probate Court is dismissed for want of prosecution, and after more than two years from the issuance of letters of administration, and a duplicate of such claim, the original having been lost, is filed by permission of the court, and although the administratrix was not served by summons but was otherwise notified a¿id appeared in court, there was a sufficient exhibition of the claim to the court under Rev. St., ch. 3, sec. 70 (J. & A. H 119), and it was not barred by the two years’ limitation prescribed in such statute.
    3. Appeal and ebbob, § 17'25*—when previous decision law of case. Previous holding of Appellate Court in same' subject-matter is law of the case on subsequent appeal.
    4. Appeal and ebbob, § 1802*—when case reversed without re-

      mantling. Judgment will be entered in Appellate Court on reversed case where all facts are before the court, a jury waived, and no reason exists for remanding the cause.
    Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and judgment here.
    Opinion Filed February 16, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Boyle & Mott, for appellants.
    Alden, Latham & Young, for appellee; Charles Martin, of counsel.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

This is an appeal from a judgment entered in the Circuit Court of Cook county, November 23, 1914, dismissing a claim of appellants against appellee, after a hearing on the merits. The facts are these: February 24, 1897, a judgment was entered in the Circuit Court of. Cook county in the following form:

“148704
E. D. Tisdale and O. D. Tisdale ) vs. ) Davis and Bankin Building and Manufactur- ) Case, ing Company and Daniel J. Davis and Wil- ) liam J. Davis. )
“Finding and assessment of damages on default heretofore entered against Daniel J. Davis and Davis and Bankin Building and Manufacturing Co. in sum of $10,750. Motion of defendant company for new trial overruled. Judgment on finding for $10,750 against Daniel J. Davis and Davis and Bankin Building and Mfg, Co. and order for sci fa vs. W. J. Davis. Lv. to defendant Davis & R. B. & M. Co. to file bill of exceptions in 60 days.”

Daniel J. Davis having subsequently died, his death was suggested of record, and it was ordered that the cause proceed against the appellee, and thereupon, November, 1911, appellants moved the court to direct the clerk of the court to correct the record made on February 24, 1897, and to enter in full and proper form, as of February 24, 1897, the judgment above mentioned. Appellee made a counter motion that the clerk be directed to correct the said judgment by striking out the name of Daniel J. Davis wherever it appeared and vacating the default theretofore entered against him. Both of these motions were denied. Appellants appealed to this court, and the administratrix assigned cross-errors. This court affirmed the orders of the Circuit Court (Tisdale v. Davis and Rankin Bldg. & Mfg. Co., 182 Ill. App. 31). It appears- that the judgment above mentioned was prepared by plaintiff’s attorney and signed by the court. The clerk entered the judgment of record in the usual expanded form, but this was afterwards stricken out.

Daniel J. Davis died intestate January 19, 1911. Letters of administration were issued to appellee January 25, 1911, and on October 6, 1911, appellants filed their claim against his estate based on the judgment above mentioned. On June 24, 1912, the claim was dismissed for want of prosecution. The parties having been notified, appellants on December 9, 1913, moved the court to reinstate the claim. The matter was continued from time to time. February 3, 1914, the Probate Court found that the claim had been lost or mislaid, and leave was given to file a duplicate which was done instanter. May 20, 1914, the matter came on for hearing, affidavits were submitted, and the court, after arguments of counsel, found that the claim had been “dismissed by this court through mistake;” that no hearing upon the merits was had; that the claim was meritorious and should be heard; that it had been lost from the files, and a duplicate filed. The order of dismissal was set aside and vacated, and the claim reinstated, heard upon its merits, and allowed for $20,005 as of the seventh class to be paid in due course of administration. Appellee appealed to the Circuit Court, where a jury was waived and the matter submitted to the court. Appellants submitted two propositions of law which they asked the court to hold: (1) That the Probate Court had jurisdiction of the subject-matter and of the parties when it allowed the claim; and (2) that the judgment entered February 24, 1897, in the Circuit Court was valid. The court held the first proposition but denied the second and disallowed the .claim. This appeal followed. Appellee has assigned cross-errors.

The two questions before this court are: (1) Did the Probate Court have jurisdiction of the parties and of the subject-matter on May 20, 1914, when the claim was allowed; and (2) is the judgment entered February 24, 1897, a valid judgment?

We will dispose of these in the order named.

First. County and Probate Courts are courts of general and unlimited jurisdiction in matters of administration, and exercise an equitable jurisdiction adapted to their organization and modes of procedure, and in the exercise of such equitable jurisdiction may, on motion at a subsequent term, set aside an order allowing or disallowing a claim against an estate, where fraud or mistake has intervened. Schlink v. Maxton, 153 Ill. 447; Sherman v. Whiteside, 190 Ill. 576; Heppe v. Szczepanski, 209 Ill. 88; Whittemore v. Coleman, 239 Ill. 430; Marshall v. Coleman, 187 Ill. 569; Domitski v. American Linseed Co., 221 Ill. 161; Ford v. First Nat. Bank, 201 Ill. 120. Appellee concedes that this is the law, but her position is as stated by her counsel: “It is not claimed that there was any fraud or mistake in the entry of the order of dismissal, such as' a court of equity could relieve against, but a mere oral motion was made to vacate, without any showing as to diligence or excuse for not appearing on the call of the docket. True, the draft order in the Probate Court states that the claim was dismissed by mistake, but no proof was made, and on the trial de novo in the Circuit Court no claim was even made that there was a mistake. Besides, proceedings similar to a bill in equity must be taken to set aside a judgment for mistake or fraud. ’ ’ The record shows that on the motion to reinstate the claim in the Probate Court, affidavits were filed and read. What these contained does not appear. The court, however, found that the claim was dismissed through mistake. In Schlink v. Maxton, supra, after the term had passed at which a claim was allowed against an estate, a motion was made to vacate and set aside the order of allowance. The motion was based upon affidavits. The court set aside the order. It was there also urged, as it is here, that after the term had passed at which an order was entered, allowing a claim, before the same could be vacated, a proceeding in the nature' of a bill in equity must be had. The court there said (p. 453): “It is urged that even if the county court, sitting as a court of probate, is invested with equitable jurisdiction, yet it has no power, at a subsequent term, to set aside its own order, judgment or decree .except upon a formal bill filed for that specific purpose. We do not so understand the practice in the probate courts.” Under the foregoing authorities, we are clearly of the opinion that the Probate Court had jurisdiction to enter the order allowing the claim.

In the case of Phoenix Ins. Co. v. Guderyahn, 20 Ill. App. 161, a claim was filed against an estate in the Probate Court of Cook county. After the expiration of more than two years from the issuance of letters, the claim was dismissed for want of prosecution. The claimant learned of the dismissal after the expiration of the term, refiled it and had a summons issued against the executor. On hearing, the claim was disallowed, and appeal taken to the Circuit Court, where the claim was allowed, to be paid out of property not inventoried by the executor, as a claim not exhibited within two years from the date of the issuance of the letters. The claimant appealed to this court, Mr. Justice Moran, in delivering the opinion of the court, said that the only question presented was: “Was the claim barred by the two years’ limitation prescribed in Sec. 70, Chap. 3, R. S.,’’ and continuing said: “It has been expressly decided by the Supreme Court that filing a claim against an estate, in the Probate Court, with the clerk thereof, within two years after the grant of letters of administration, is an exhibition of the claim to the court, so as to take the claim out of the limitation of two years in Sec. 70, * * * and that if the claim has been so filed the claimant may, after the expiration of two years, summon the administrator, and if the claim is allowed, have it paid in due course of administration. Wallace v. Gatchell, 106 Ill. 315.

“The presentation of the claim to the court and the filing thereof was, then, a sufficient exhibition of the claim to the court to take it out of the two years’ statute. We presume it would not be contended, that if the claim had been called and dismissed at any time within the two years from the issuing of letters, it might not be filed again before the expiration of the two years, and adjudicated and ordered paid in due course. A dismissal of a claim on call because the claimant does not appear, determines nothing as to the justice of the claim, and can not be a bar to an adjudication of the claim when newly presented, and the effect of the dismissal is precisely the same whether it occurs before or after the expiration of the two years.”

The only difference between that case and the case at bar is that there the claim was “newly presented” and a summons issued, while here a duplicate of the claim was filed but no summons issued. Appellee, however, was notified and appeared in court and contested the claim. We think the principle in the two cases is the same.

Second. Appellants contend that the validity of the judgment upon which the claim is based has been determined by this court in the case of Tisdale v. Davis and Rankin Bldg, & Mfg. Co., supra. On the other hand, appellee’s position is that the so-called judgment is in fact not a judgment, and that the opinion of this court wherein this question is mentioned is mere dictum. Mr. Justice McSurely, in delivering the opinion of the court, there said:- “The gist of appellants’ claim is that they are entitled to have the expanded form of the judgment entered of record. We are not referred to any authority for the proposition that litigants are entitled to any particular form of a judgment order other than that which sufficiently expresses the judgment of the court. If the judgment order herein is sufficient, there would be no reason for the trial court to grant the motion of appellants, and in the absence of anything to the contrary, we must assume that to be the reason for the refusal of the court to allow the motion. The appellants do not point out in what respect the judgment is insufficient, but in argument assume this is so, in which assumption appellee of course willingly joins. The sufficiency of the judgment is not questioned by any assignment of error. Inspection of the judgment order above set forth does not disclose to this court the omission of any element essential to its validity. * * * No convincing reason appearing for changing the form of the judgment as prayed for, the refusal of the trial court to allow the motion was proper/”

The language above quoted is clear and unambiguous. It holds the judgment valid and, under the decisions of this court, establishes the law of the case. (Union Nat. Bank of Chicago v. Post, 93 Ill. App. 339; Wilson v. Carlinville Nat. Bank, 87 Ill. App. 364.)

This case must, therefore, be reversed, but as all the facts are before this court, and as a jury was waived, no reason exists for remanding the cause. A judgment will, therefore, be entered in this court for the amount due, which is $20,005, to which should be added five per cent, interest from May 20, 1914, the date on which the claim was allowed in the Probate Court, to the date on which this judgment is entered.

Judgment reversed and judgment in this court.


source: Caselaw Access Project

author: Mr. Justice Goodwin

license: Public Domain

text:
    William Bolger, a minor, Appellee, v. City of Chicago, Appellant.
    Gen. No. 20,854.
    1. Municipal corporations, § 1098

      —when evidence sufficient to establish prima facie case of negligence in maintenance of sewer conduit. In an action by a pedestrian against a city for damages for personal injuries sustained as a result of an explosion of sewer gas in a sewer conduit which also contained an electric system, as he stepped on the cover of a manhole while crossing the street, evidence held sufficient to establish a prima facie case of negligence.
    2. Appeal and error, § 1466*—when admission of evidence harmless error. In an action by a pedestrian against a city for damages for personal injuries sustained as a result of an explosion of sewer gas in a sewer conduit, which also contained electric wires, when plaintiff stepped on the cover of the manhole, held that the admission of evidence, in behalf of plaintiff, as to facts and circumstances which might or could have given rise to the accident was not prejudicial where it was merely cumulative, and the defendant had not offered any evidence tending to explain the accident or the circumstances in which it occurred.
    3. Appeal and error, § 717*—when contention on matter not in record will not be considered. In the absence of evidence in the record tending to show a state of facts, a contention based on such state of facts will not be considered by the Appellate Court.
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed February 19, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    William H. Sexton and N. L. Piotrowski, for appellant.
    Gorman, Pollock, Sullivan & Livingston, for appellee.

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

   Mr. Justice Goodwin

delivered the opinion of the court.

This appeal was taken by the City of Chicago, hereinafter referred to as defendant, to reverse a judgment for $7,500 recovered against it by William Bolger, a minor, hereinafter referred to as plaintiff.

It appears from the evidence that as the plaintiff stepped on a square manhole cover while crossing Center street, an explosion underneath the manhole occurred; the cover was blown in the air, plaintiff fell in the opening with his hands on the edge of the manhole, and the cover came down on his hands, injuring the right hand to such an extent that it had to be amputated at the wrist, and leaving the left hand badly cut and lacerated. The manhole cover was solid, unventilated, about twenty-eight by thirty-two inches in size, and weighed one hundred and eighty pounds. The explosion was quite evidently caused by the ignition of gases contained in the chamber underneath the street which ran from manhole to manhole. There were electric wires placed in this chamber, and beneath the surface of the street there were also gas mains and sewer pipes. The testimony further showed that there had been an odor of gas in the street in the neighborhood of this manhole for some time prior to the accident; that after the accident there was an odor of sewer gas in the chamber where the accident occurred, and that sewer gas, when mixed with air, is explosive, and that this is true of illuminating gas also. From the evidence italicized in the defendant’s brief it would appear that there is usually some sewer gas in the chambers underneath the street”, and that its presence can be detected at the manholes. No evidence was offered on behalf of the city except that of an official from the United States weather office in Chicago, which was to the effect that on the afternoon in question it was raining from two minutes to three until five minutes after three o’clock p. m., about two hours before the accident. This evidence was received by agreement out of its order, but when, at the proper time, the city was called upon to proceed with the offer of its evidence, its counsel said: “I will state in the record that the city declines to put in any evidence.

The city contends that the evidence was not sufficient to sustain a verdict. The defendant pleaded only the general issue which admitted the allegations of the plaintiff in regard to defendant’s ownership and control of the street, the conduit underneath it, and the electric lighting system placed therein. The question, therefore, is, do the undisputed facts in the record establish a liability on the part of the defendant?

It is a very ancient and salutary principle of law, that where one has charge or management of a thing in connection with which an accident happens, which in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of proper care; that in case of such an accident the duty of explanation is thrown upon those having charge of the thing, particularly when information concerning the thing itself is within the particular or peculiar knowledge of the defendant. We realize that this statement of the rule is very general in its terms, and not applicable, perhaps, to every case coming within the letter of the language used. It therefore becomes our duty to consider whether it applies in the case at bar. A somewhat similar question arose in Illinois Cent. R. Co. v. Phillips, 49 Ill. 234. There the plaintiff had been injured through the explosion of a boiler, and it was urged that the court erred in giving the following instruction, which appears on page 239:

“The mere fact that the boiler of the engine in question exploded, causing injury to the plaintiff, is not, in this case, and under the relations existing at that time, between the plaintiff and the defendants, as set forth in the declaration, even prima facie evidence of negligence, or want of due and proper care on the part of the defendants, either in respect to the condition or management of said engine; and the jury are not authorized to find the existence of such negligence, or want of due and proper care, from the mere fact of such explosion and injury.”

The court held that it was improper to say that the explosion was not prima facie evidence of negligence which cast the burden of explanation upon the defendant. The question again came before the court in Illinois Cent. R. Co. v. Phillips, 55 Ill. 194, and the court adhered to its former opinion, saying at page 199: “This court held in this Case, in 49 Ill. supra, that the mere fact that the boiler exploded was prima facie evidence of negligence; and that the burden of disproving the negligence was thrown upon the company. ’ ’

The question, then, is, as to whether there is anything in reason which distinguishes, in principle, the case at bar from the cases cited, and whether there is any rule of public policy which forbids the application of the general doctrine stated above to the case of explosions occurring underneath the street. We know, as a matter of law, that the entire and complete control of the surface of the street and everything underneath it is vested in the City of Chicago. On the face of this record it is admitted that the manhole, the manhole cover, the conduit and the electric wires placed therein and the sewer mains were the property and under the management and control of the defendant. It further appears that explosive gases usually do collect in such conduits and had collected in the conduit in question at and for some time prior to the time of the accident, and that their ignition was its cause. Knowledge concerning the wires, conduits, sewers, gas mains, etc., beneath the surface of the street is, as between the city and any inhabitant, peculiarly within the knowledge of the former. As streets are, of necessity, constantly used by all of its inhabitants, and as the safety of the public is a matter which the law considers of paramount importance, the duty of the city to use ordinary care to see that the safety of the public is not endangered as the result of its arrangement and management of the instrumentalities beneath the street is, of course, indisputable. When, therefore, an accident happens through an explosion in one of the chambers beneath the surface of the street,—an accident which, admittedly, ordinarily would not happen if those who had charge exercised proper care—may the city, when this proof is made, say: “It is for you, who can have no definite knowledge in regard to the real cause of this accident, to demonstrate to the jury what its precise origin was, and in what definite particular those who had charge were negligent”? It is obvious that the adoption of such a principle would put in jeopardy the lives and safety of the inhabitants of a municipality, and leave them without practical means of redress. Upon a careful consideration of the question, therefore, we are firmly of the opinion that the principle which throws upon the owners of a boiler or an engine the burden, not necessarily of explaining the origin of an explosion, but of showing facts and circumstances which would rehut the inference of negligence, applies with even greater force to the case of explosions in conduits beneath the public streets. It follows from this that as the evidence disclosed by this record made out a prima facie case against the city, and the city expressly declined to offer any explanatory proof whatever, the plaintiff was entitled to judgment.

The plaintiff also offered evidence as to circumstances which might or could have given rise to the accident, and as to how it might have been prevented; the defendant contends that the admission of this evidence was not proper. Had the city offered any evidence tending to explain the accident or the circumstances in which it occurred, this objection might have some weight, but in view of its refusal to present any evidence at all, as the evidence complained of was, at best, merely cumulative, its admission would not in any way prejudice the defendant.

We notice also that on the question of the construction of the solid, unventilated manhole cover the defendant contends that it could not be considered as evidence of negligence, as the city is not liable where it exercised a quasi judicial discretion in the adoption of a plan of construction. Without discussing the merits of the principle contended for, as applied to this case, it is sufficient to say that there is not a particle of evidence in the record tending to show that the presence of the solid, unventilated cover was due to the adoption of a plan of construction.

For the reasons indicated, the judgment of the Superior Court will be affirmed.

Affirmed.


author: Mr. Presiding Justice Gridley

text:
    Minnie V. Connor, Defendant in Error, v. Louis Greenberg, Plaintiff in Error.
    Gen. No. 19,190.
    1. Sheriffs and constables, § 78

      —when replication to plea of authority sufficient. In action in trespass where defendant pleaded that he had a writ of fieri facias, that the outer door of plaintiff’s house was open at the time he entered, to which plaintiff replied, admitting defendant had the writ but that he nevertheless committed the trespass as alleged in the declaration held, that it was unnecessary for plaintiff to specifically charge in the replication that defendant broke the outer doors, but that by replying as to the abuse to defendant’s plea of authority she stated matter in confession and avoidance.
    2. Pleading, § 183*—when defendant may demur specially to replication. In action in trespass where a replication de injuria is insufficient, defendant may demur specially.
    3. Pleading, § 466*—when defect in replication aided by verdict. A defect in a replication de injuria in an action of trespass is aided by verdict.
    4. Sheriffs and constables, § 80*—when error in admission of evidence not prejudicial. Any error of the trial court in an action, in trespass, wherein it was alleged that a constable broke the outer doors of a residence to serve a writ, in allowing plaintiff to testify that she had no recollection of any service of a summons on her in the action wherein the writ was served, was not prejudicial, where the trial court gave instructions which were predicated upon the assumption that defendant had a valid writ of execution.
    5. Trespass, § 11*—what constitutes a dwelling house. In an action in trespass, a boarding house is a dwelling house where plaintiff resides therein.
    6. Sheriffs and constables, § 83*—when instruction as to right of officer breaking in door of dwelling to serve writ sufficient. In an action in trespass against a constable serving a writ and breaking into a dwelling house, inner doors in a vestibule leading into a house are outer doors of the house even though there may be outer doors to the vestibule, and an instruction with reference to breaking in the outer door need not designate which of such above doors were inner or outer.
    7. Sheriffs and constables, § 83*—when instruction as to measure of damages for injury to business because of unlawful entry by

      constable sufficient. Where in an action in trespass for unlawful entry of constable serving a writ, it appears that the officer unlawfully entered plaintiff’s house, it is proper to instruct the jury that if they find for’plaintiff and if they find that plaintiff had an established business which was injured or destroyed as a proximate result of the acts of defendant in taking plaintiff’s goods they may assess damages proximately accruing from such loss of business.
    8. ' Sheriffs and constables, § 83

      —when instruction in action against constable for breaking into a house to serve a writ not prejudicial. Where in action in trespass against a constable for breaking into a house to serve a writ, a portion of an instruction complained of is predicated upon the assumption that defendant made a peaceable entry into plaintiff’s house, whereas the jury found in one of their special findings that he broke the outer door thereof, defendant could not have been prejudiced by such instruction.
    9. Sheriffs and constables, § 80*—when evidence sufficient to sustain verdict. In an action against a constable for damages for breaking into a house to serve a writ on plaintiff, evidence held sufficient to sustain a verdict for plaintiff.
    Error to the Circuit Court of Cook county; the Hon. Henry V. Freeman, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed February 24, 1916.
    Statement by the Court. This action in trespass was commenced in the Circuit Court of Cook county on April 6, 1905. For various causes a trial was not had until March, 1909. At the conclusion of the trial at the request of the defendant four special interrogatories in writing were submitted to the jury to be answered, as follows:

      “A. Did Louis Greenberg commit an assault upon the plaintiff, Minnie Connor!
    ‘ ‘ B. Did Louis Greenberg have an execution against Minnie Connor, and in favor of Clark & Doran?

      ‘ ‘ C. Did Louis Greenberg imprison or arrest Minnie Connor ?
    “D. Was the outer door broken by Constable Louis Greenberg?”
    The jury, on March 25,1909, returned a general verdict finding the defendant guilty and assessing plaintiff’s damages at the sum of $3,000, and in their special findings answered all of said interrogatories in the affirmative. Defendant’s motion for a new trial was not finally passed upon until February 3, 1910, at which time that motion and his motion in arrest of judgment were overruled and the court entered judgment upon the verdict.
    From the judgment defendant prayed an appeal and perfected the same in this court, but on July 10, 1912, said appeal was dismissed by this court upon his motion. He having been arrested on a capias ad satisfaciendum issued on said judgment, and his petition for release from custody under the Insolvent Debtor’s Act having been dismissed by the County Court of Cook county, he prayed an appeal from that judgment of dismissal to this court, and on November 10,1914, said judgment of the County Court was affirmed. (Greenberg v. Connor, 189 Ill. App. 419.) In the meantime, on February 1, 1913, he sued out this present writ of error to review said judgment of the Circuit Court, and the cause was continued from term to term for want of service on plaintiff (defendant in error). On January 14,1915, on defendant’s motion the writ of error was made a supersedeas, defendant having filed a bond with surety in the sum of $5,000, and on May 11, 1915, publication having been made, plaintiff entered her appearance in this court.
    The declaration consists of four counts. The first count alleges, in substance, that defendant, on April 20, 1904, “with force and arms, etc., broke and entered a certain dwelling house of the plaintiff,” and stayed and continued therein, making a great noise and disturbance, for the space of three days; that defendant “forced and broke open and broke to pieces and damaged the outer doors” of said dwelling house, and “broke to pieces, damaged and spoiled divers locks, staples and hinges” belonging to said doors and wherewith the same were fastened; that defendant, also, during said time, with force and arms, “seized and took divers goods and chattels” (here are specifically mentioned more than 100 articles including one piano, several oriental rugs, household furniture and $52 in money) “being the goods of plaintiff then found and being in said dwelling house and being of the value of $2,500, and carried away the same and converted and disposed thereof to his own use;” by means whereof plaintiff and.her family were not only greatly disturbed in the peaceable possession of plaintiff’s dwelling house but plaintiff was “hindered and prevented from carrying on and transacting therein her necessary affairs and business and has * * * been thereby deprived of her said dwelling house from hence hitherto, and * * * the business of plaintiff, being that of a boarding house keeper, was completely broken up and destroyed. ’ ’
    The second count alleges that on the date aforesaid defendant made an assault upon plaintiff and beat and illtreated her, and imprisoned her without any reasonable cause for the space of seven hours. The third count charges, in substance, that defendant assaulted plaintiff, seized her and with great violence dragged her about and struck her, and also forced her to go out on the public streets then and there in custody, whereby she was not only bruised and wounded but was exposed to public disgrace and injured in her standing and reputation. The fourth count charges an assault and battery by defendant.
    The defendant filed a plea of the general issue to all four counts, and also a special plea “as to the first count of plaintiff’s declaration and as to the alleged wrongful taking of the property hereinafter named,” in which he alleged, in substance, that on February 16, 1904, Clark & Doran sued out of the justice court of W. D. Wilcox, a justice of the peace in said Cook county, a writ of fieri facias, commanding any constable of said county that of the goods and chattels of said plaintiff there should be made the sum of $133.20, and $4.50 costs, within seventy days; that defendant was then and thereafter a constable of said county and said writ was delivered to him, to execute; that after-wards and before the return day of said writ, on April 20, 1904, defendant as such constable “peaceably and quietly entered into the said dwelling house, 'in which, etc., the outer door thereof being then open,” and seized and took in execution the following goods and chattels of plaintiff, viz.: “1 piano, 1 piano stool, 2 rugs 9 x 12, two wardrobes, one hat rack and 2 small rugs,” the same being in said dwelling house and liable to be seized and taken by virtue of said writ; that in so doing he necessarily and unavoidably made a little noise in said dwelling house but did no unnecessary damage to plaintiff; and that afterwards, after due notice given according to law, he sold said goods and chattels, and satisfied said judgment and costs.
    To this special plea of justification plaintiff filed a replication in which she alleged that “although true it is that said writ of fieri facias was issued and delivered to the defendant as such constable * * * nevertheless * * * the plaintiff says that the defendant, at the time when, etc., of his own wrong and without the residue of the cause in that plea alleged, committed the trespasses in said declaration mentioned, in manner and form as the plaintiff has hereinabove complained against the defendant,” etc.
    The testimony of plaintiff and her witnesses disclosed, in substance, the following facts: On and prior to April 20, 1904, plaintiff conducted a boarding and lodging house on Ashland boulevard, between Jackson and Van Buren streets, Chicago. There were fifteen rooms in the house and ten boarders. Plaintiff’s net income from her boarders and roomers at the time was about $100 per month. At the front entrance to the house there were two permanent doors. They were both “double doors,” one set opening into a vestibule and the other set opening from the vestibule into the main hall of the house. Outside of the first mentioned double doors were temporary double “storm” doors which opened outwards. About 8:30 o’clock on the morning of April 20, 1904, plaintiff was standing on the front porch. The storm doors were open. Both sets of double doors were locked. Defendant, accompanied by William Snyder, another constable, came upon the porch where plaintiff was. Other men, assistants of defendant, were on the sidewalk. Defendant stated to plaintiff that he had an execution against her in favor of Clark & Doran for over $133, demanded that plaintiff open the doors and let him inside of the house, took hold of plaintiff’s arm and further stated that she was his prisoner. Upon plaintiff’s refusal to open the doors defendant directed Snyder and his other assistants to break in the doors, and they first broke open the double doors leading into the vestibule. In the meantime, at plaintiff’s request, her daughter, standing inside in the hall, had “put the chain on” the doors opening from the vestibule into said hall. Defendant’s assistants afterwards by pushing a ladder against said doors, succeeded in breaking open the same and in so doing broke off a portion of one of said doors and broke said chain. After gaining admission into the hall defendant again took hold of plaintiff’s arm and again stated that she was under arrest, and demanded that $200 be paid him, otherwise he would carry away the household effects and sell them. Subsequently plaintiff paid defendant $40 and received from him a written receipt therefor. Plaintiff then requested that she be allowed to go down town and see her attorney and endeavor to procure more money. Defendant refused to permit her to go except in the custody of Constable Snyder, who accompanied her in a buggy to said attorney’s office. In the interview there had Snyder told said attorney that plaintiff was under arrest, that both defendant and he had executions and that if money was not forthcoming they were going “to clean out that place,” and referred him to defendant for further information. Snyder accompanied plaintiff on the return to her home, where plaintiff again saw defendant and asked for additional time to procure more money. Defendant said he would put in a custodian at $10 per day, which he did for one day. Plaintiff paid $12 in all to the custodian. On the afternoon of the following day defendant, accompanied by Snyder and other men, again came to plaintiff’s home. Two large moving vans of the Livingston Express and Storage Company were drawn up in front of the house, and during the afternoon there were taken and carried away in said vans and in buggies 100 articles of household furniture belonging to plaintiff. As one witness stated, “they took almost everything.” Plaintiff, after enumerating various chattels taken, testified that the fair market value of the same at the time was $2,600. This testimony as to value was not contradicted. No part of the property was returned to plaintiff and she did not continue in her business as a hoarding house keeper.
    The defendant claimed the protection of the execution issued by W. D. Wilcox, a justice of the peace, on a judgment against plaintiff and in favor of Clark & Doran for $133.20 and costs. This paper was in the possession of the defendant and on the trial was offered in evidence by him. It does not appear to have ever been returned to said justice. On the back of the paper is a statement over defendant’s signature that on April 20,1904, he levied on certain specific personal property of plaintiff (mentioning the same 9 articles as stated in his plea of justification). Below is the further statement that the sale is set for May 3, 1904. Defendant testified that he advertised and sold the property levied upon and that he took no other property. The theory of the defense was that the other property of plaintiff which was carted away was taken by Constable Snyder, who claimed to have another execution for $193 issued by said justice of the peace against plaintiff and in favor of one Anderson. Snyder testified that he made a levy at the same time that defendant made his levy on the Clark & Doran execution. The Anderson execution was not produced. Snyder further testified that he returned it into court, but that he had not made a search to find it or ask the justice to do so. It appeared, however, from the original record of said justice in said Anderson case and from a transcript thereof, certified to by the justice nearly eight months after the alleged levy, that the Anderson execution was issued to defendant, as constable, on April 7, 1904, but it did not appear from said record or transcript that the execution had ever been returned.
    Both defendant and Snyder testified to the effect that they did not break open the doors which opened into the vestibule; that these doors they found open when they arrived; that they demanded of plaintiff that she open the two doors which opened into the hall from the vestibule; and that upon her refusal they broke open these doors and entered. Both denied that they, or any one for them, laid hands on plaintiff, or stated that she was under arrest, or that they at any time arrested her. Both testified that the property taken, away from plaintiff’s house was temporarily stored in the warehouse of the Livingston Company, and evidence was introduced on behalf of defendant tending to show that all the property taken, except the 9 articles alone claimed to have been levied upon and taken by defendant, were stored with said company in the name of Snyder. Plaintiff, however, testified that a day or two after her property was taken she called at the office of the Livingston Company and there saw an entry in a warehouse receipt book that her goods were there stored in the name of defendant. Plaintiff also introduced in evidence a sheet from a certain loose-leaf warehouse receipt hook of said Livingston Company, which purported to be a carbon copy of a warehouse receipt given by said company on April 22, 1904, for 78 articles of household furniture. Among the articles enumerated are: “1 piano, 1 piano stool, 2 wardrobes and 1 hat rack,” which articles defendant claimed he levied on. This sheet was identified by John L. Livingston of said company. He testified that all of said articles were taken directly from plaintiff’s house and stored in the company’s warehouse.' It clearly appears that the receipt as originally written was given to “Greenberg,” and that said name has been partially erased and the name “¥m. Snyder” written over the erasure.
    Martin C. Connor, for appellant.
    William J. Stapleton, for appellee.

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

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

First. It is contended by counsel for defendant that because plaintiff, in her replication to defendant’s plea of justification to the declaration, failed to “new assign, ’ ’ no recovery can be had by plaintiff. The statement as to defendant’s plea being filed to the declaration is not accurate. The declaration contained four counts to which defendant pleaded the general issue, and his special plea of justification was filed only to the first count. After due consideration we do not think that counsel’s point is well taken.

The first count of plaintiff’s declaration charged, in substance, that defendant, with force and arms, etc., broke and entered plaintiff’s dwelling house, forced and broke open the outer doors of said house, and therein seized and carried away over 100 articles of household furniture, the property of plaintiff, and converted the same to his own use, whereby she suffered damages as alleged. Defendant’s plea of justification to this count alleged, in substance, that, by virtue of an execution for $133.20, issued by a justice of the peace to him as a constable, he as such constable peaceably and quietly entered plaintiff’s dwelling house, “the outer door thereof being then open,” and seized and took away under said execution 9 articles of household furniture mentioned, belonging to plaintiff, and subsequently sold the same, etc. The fact that defendant as a constable was armed with a writ of fieri facias would not justify him, for the purpose of executing such a writ, in breaking the outer door of plaintiff’s dwelling house; if, however, he found such outer door open, and he gained a peacable entry into the house, and he found that an inner door was closed so that he could not seize any of plaintiff’s goods, then he could have demanded of plaintiff that said inner door be opened, and upon her refusal he could have opened that door and seized a sufficient amount of plaintiff’s goods to satisfy the amount of said writ and costs. (Snydacker v. Brosse, 51 Ill. 357, 361.) If he broke the outer door, and thereby gained an entrance into plaintiff’s house, he became a trespasser ab initio, and liable not only for the property taken by him but also for any damage to plaintiff which was the immediate result of his acts. (Snydacker v. Brosse, supra; Greenberg v. Connor, 189 Ill. App. 419.) The averment in defendant’s plea (viz., the outer door of plaintiff’s house being open at the time he entered) was a material one, as that fact, if it was a fact, was a condition precedent to his right to enter plaintiff’s house. (Kerbey v. Denby, 1 Meeson & W. Rep. 336.) To this plea the plaintiff filed a replication, in which she admitted that it was true as defendant had stated in his plea that he had the writ, but further alleged that nevertheless the defendant, at the time when, etc., “of his own wrong, and without the residue of the cause in that plea alleged, committed the trespasses in said declaration mentioned, in manner and form as the plaintiff has hereinabove complained against the defendant.” In other words, she alleged that notwithstanding defendant had the writ mentioned, nevertheless he committed the trespasses as alleged in her declaration, in the first count of which there was contained the distinct allegation that he forced and broke open the outer doors of her house. We think it was unnecessary for her to again specifically charge in the replication that defendant broke the outer doors. (Kerbey v. Denby, supra.) And we think that the issue of fact as to whether defendant broke the outer doors was sufficiently presented. “In trespass * * * the replication containing a general denial of the whole plea sometimes occurs, and is termed a replication de injuria sua propria absque tali causa, * * * or, if a part of the plea be admitted, then it is termed de injuria absque residuo causa, thereby denying all but the admitted fact or facts. This replication tenders issue upon and compels the defendant to prove every material allegation in his plea.” (1 Chitty on Pl., 16th Am. Ed., star p. 632-3.) “If in any case the defendant justified under the warrant of a justice of the peace, * * * or by his command, the replication must have been special, and admit or protest the warrant or commandment, and reply de injuria absque residuo causa, or take issue simply on the warrant or commandment.” (Id., star p. 636.) “There are some replications which rather partake of the nature of new assignments than are properly and strictly so. As where the defendant has abused an authority or license which the law gives him, by which he became a trespasser ab initio. In an action brought for a trespass thus committed, where the defendant pleads the license or authority, the plaintiff may reply the abuse. Such a replication it will be observed differs from a new assignment, because it does not operate in any manner as a waiver or abandonment of the trespass attempted to be justified, but states matter in confession and avoidance of the justification.” (Id. p. 665.) Furthermore, defendant did not demur to plaintiff’s replication. “Where de injuria is improperly replied, the defendant may demur specially, but the defect will be aided after verdict.” (Id. p. 639.)

Second. It is also contended that the trial court erred in allowing plaintiff to testify that she had no knowledge or recollection of any summons ever having been served upon her in the action brought against her by Clark & Doran in the justice court. We do not think, even if the court erred in his ruling, that defendant was so prejudiced thereby as to warrant a reversal, in view of the instructions subsequently given to the jury. Several of plaintiff’s instructions were predicated upon the assumption that defendant had a valid writ of execution. Of the instructions given on behalf of the defendant the second told the jury that the writ of execution introduced in evidence was valid and authorized defendant, as a constable, to levy upon and take goods of plaintiff to satisfy the writ; and the eighth, that if the jury believed from the evidence that the plaintiff was not served with a summons in the Clark & Doran case, still the writ of execution in defendant’s hands would be a protection to him in levying upon plaintiff’s property although as a matter of fact there was no service upon her.

Third. It is further contended that the trial court erred in giving three instructions offered by plaintiff and in modifying an instruction offered by defendant.

Plaintiff’s seventh given instruction is as follows:

“The court instructs the jury as a matter of law that an officer in levying an execution within a dwelling house must make a peaceable entry and has no right tó break open an outer door or other outside protection of such dwelling house, and if the jury believe from the evidence in this case that the defendant broke open or caused to be broken open the outer door or other outside protection of the plaintiff’s dwelling house in levying- the writ or writs of execution in question, then all acts thereafter done pursuant to said wrongful entry, if the jury believe from the evidence there was such wrongful entry under said writ or writs by the defendant or by his direction, were unlawful. What constituted the outer door or other outside protection of the plaintiff’s dwelling house is a question of fact for the jury. ’ ’

Counsel for defendant contend that this instruction was prejudicial because (1) it assumes that the boarding house kept by plaintiff was a “dwelling house,” and (2) because it left to the jury to decide, under the evidence, that an inner door might be an outer door, and therefore was misleading. The evidence clearly shows that the house in question was plaintiff’s dwelling house. She resided therein with her family. We do not think that the mere fact that she rented certain rooms to others and also kept boarders made it any less a dwelling house. (State v. Leedy, 95 Mo. 76, 78.) The term “dwelling house” is defined in Webster’s Dictionary as “a house intended to be occupied as a residence, in distinction from a store, office, or other building;” and in Bouvier’s Law Dictionary as “a house usually occupied by the person there residing, and his family; the apartment, building, or cluster of buildings in which a man with his family resides.” And it was not disputed on the trial that plaintiff occupied the house as her dwelling house, and defendant in his plea of justification stated that the articles which he seized and took in execution were in “said dwelling house.”

The second objection to the instruction evidently has reference to the last sentence thereof. As we understand it the argument is, inasmuch as the evidence was conflicting on the question whether defendant broke in the double doors entering into the vestibule, and as there was no dispute as to the breaking in of the double doors leading from the vestibule into the hall, that by the instruction the jury might have thought that said last mentioned doors were outer doors, and that the court should have told the jury by an appropriate instruction which of the two sets of doors were the outer and which the inner, instead of submitting this question to the jury to decide. We do not think that the defendant was prejudiced by the instruction. In Snydacker v. Brosse, 51 Ill. 357, 359, it is said: “It is a uniformly recognized rule of the common law, that no officer has the legal authority to break an outer door, or other outside protection, to an individual’s house, for the purpose of executing civil process.” In our opinion, under the facts shown, the double doors leading from the vestibule into the hall are to be considered in law as much the 1 ‘ outer door or other outside protection” to plaintiff’s house as the other outer doors leading into the vestibule. An entrance into the inside of plaintiff’s house could not be effected by reaching the vestibule which is outside of the doors opening into the main hall of the house. There is therefore no basis for counsel’s objection to the instruction.

Complaint is made of the giving qf the tenth instruction offered by plaintiff. By it the jury were told that if they found the issues for the plaintiff, and that if they further found from the evidence that plaintiff had an established business which was injured or destroyed as the proximate result of the acts of defendant in taking plaintiff’s goods, they might assess such damages, if any, proximately accruing to plaintiff from such loss of business. Counsel’s argument against the instruction is based on the assumption that he lawfully entered plaintiff’s house and made a lawful levy on plaintiff’s goods. Under the facts shown we do not think there was error in the giving of the instruction. (Snydacker v. Brosse, 51 Ill. 357, 361.)

It is also contended that the giving of the fifth instruction offered by plaintiff tended to mislead the jury. As the portion complained of is predicated upon the assumption that defendant made a peaceable entry into plaintiff’s house, and the jury found in one of their special findings that he broke the outer door thereof, we do not think that the defendant could have been prejudiced by the giving of the instruction. Furthermore, we think the jury were properly instructed as to the measure of damages for property unlawfully taken.

Complaint is also made of the fact that the court refused to give defendant’s thirteenth instruction, as offered, but modified it by inserting therein certain words and giving' it to the jury as modified. We do not think that the defendant was at all prejudiced by the' action of the court.

Fourth. It is further contended that the verdict is against the weight of the evidence. We do not think so.

The above are all the points urged and argued in the brief of defendant’s counsel as grounds for a reversal of the judgment. Finding mo reversible error in the record the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    The People of the State of Illinois, State Board of Examiners of Architects, Defendant in Error, v. Rodgers Company, Plaintiff in Error.
    Gen. No. 21,148.
    Architects and engineers,—when corporation not guilty of practicing architecture without a license. Under Hurd’s Rev. St. Ch. 10a, sec. 5 (J. & A. If 479), relative to the licensing of architects, a corporation does not incur the penalty provided in section 8 of such chapter (J. & A. f 482) for practicing architecture without a license, when it makes a contract for the doing of architectural work and the work is actually performed by and under the direction of a duly licensed architect, who is an employee of the corporation.
    Error to the Municipal Court of Chicago; the Hon. John Courtney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed.
    Opinion filed February 24, 1916.
    Ralph D. Stevenson and Adams, Follansbee, Hawlet & Shorey, for plaintiff in error; Calhoun, Lyford & Sheean, of counsel.
    John J. Falvey, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

On June 23,1914, the present action was commenced in the Municipal Court of Chicago against the Rodgers Company, an Illinois corporation. As stated in the statement of claim, plaintiff’s claim is for a penalty, not exceeding two hundred dollars, “for a violation by defendant of the statutes' of the State of Illinois, Section 5 of Chapter 10a [J. & A. 479] of an act to provide for the licensing of architects and regulating the practice of architecture as a profession,” in that defendant on June 16,1914, “was engaged in the practice of architecture, and, at Chicago, Illinois, did furnish plans and did enter into a contract to build and supervise the construction of a building at Niles, Illinois, all in violation of the aforesaid act.” The defendant denied in its affidavit of merits that at the time mentioned, or at any other time, it was engaged in the practice of architecture in violation of the statute. The case was tried before the court without a jury, resulting in the defendant being adjudged to pay a fine of fifty dollars, which judgment it is sought by this writ to reverse.

There is no dispute as to the material facts. The Rodgers Company, defendant, is a corporation, organized on April 10, 1908, under the general incorporation act of this State for the purpose of carrying on the business of consulting engineering building and construction work of all kinds. On May 6, 1914, it entered into a written contract with the Catholic Bishop of Chicago, a corporation sole, to perform, upon the terms and conditions therein stated, all the necessary and usual architectural services in connection with the construction of a building about to-be erected at Niles, Illinois, for said Catholic Bishop of Chicago, owner. Subsequently it furnished the owner with plans and specifications for the work to be done. The plans were all prepared by and under the direction and supervision of one K. M. Vitzthum, a duly licensed architect of the State of Illinois. Vitzthum was an employee of defendant and all of said plans and specifications were signed by him and sealed with his seal as a licensed architect.

In section 4 (J. & A. 478) of the act in question, the character of the examination to be taken by applicants for license to practice architecture is set forth, and it is provided that “any person over twenty-one years of age, ” ’ upon payment of a fee, shall be entitled to an examination for determining his or her qualifications, and it is further provided that if the result of the examination of any applicant be satisfactory to a majority of the State Board of Examiners of Architects, under its rules, the secretary upon order of the board shall issue to the applicant a certificate to that effect, and upon payment of a fee he shall thereupon issue to the person named therein a license to practice architecture in the State, in accordance with the provisions of the act, which license shall contain “the full name, birth place and age of the applicant,” etc.

In section 5 (which is the section mentioned in plaintiff’s statement of claim) provision is made for the licensing of persons who were engaged in the practice of the profession of'- architecture when the act was passed. Then it is provided: “In the case of a co-partnership of architects, each member whose name appears must be licensed to practice architecture.” Then it is provided: “No stock company or corporation shall be licensed to practice architecture, but the same may employ licensed architects.” (J. & A. ¶ 479.) Then follow provisions requiring each licensed architect to have his or her license recorded, and that the failure so to do shall be deemed sufficient cause for revocation of the license.

In section 7 (J. & A. jf 481) it is provided that every licensed architect shall have a seal, the impressions of which must contain the name of the architect, his or her place of business, and the words, “Licensed Architect, State of Illinois,” with which he shall stamp all drawings and specifications issued from his office for use in this State.

In section 8 (J. & A. ft 482) it is provided that after six months from the passage of the act it shall be unlawful, and it shall be a misdemeanor punishable by fine of not less, than ten dollars nor more than two hundred dollars for each and every offense, “for any person to practice architecture without a license in this State, or to advertise, or to put out any sign or card or other device which might indicate to the public that he or she is entitled to practice as an architect.”

In section 9 (J. & A. 483) it is stated that any person engaged in the planning or supervision of the erection, enlargement or alteration of buildings for others and to be constructed by other persons than himself shall be regarded as an architect within the provisions of the act; and it is provided that nothing contained in the act shall prevent draughtsmen, students, clerks of works or superintendents, and other employees of those lawfully practicing as architects under license, from acting under the instruction, control or supervision of their employers; or prevent the employment of superintendents of buildings paid by the owners from acting, if under the control and direction of a licensed architect who has prepared the drawings and specifications for the building; or prevent any person, mechanic or builder from making plans and specifications for, or supervising the erection, enlargement or alteration of any building that is to be constructed by himself or employees.

In section 10 (J. & A. ft 484) provision is made for the revocation and cancellation of licenses, and in section 11 (J. & A. If 485) for the renewal of licenses annually.

It is urged by counsel for the defendant that the trial court erred in entering the judgment for the reason that under the facts shown the defendant is not guilty of a violation of the act in question. The contention is, that while a corporation as such cannot be licensed to practice architecture any more than it could be licensed to practice dentistry or pharmacy, not only because of the provision contained in section 5 of the, act (J. & A. ft 479) but also because of its impersonal entity, yet a corporation may lawfully enter into a contract for the furnishing of architectural plans and specifications and perform such contract by employing a licensed architect to do the work, and in so doing is not practicing architecture in violation of the provisions of said act. Counsel for defendant direct particular attention to the clause in section 5 of the act (J. & A. ft 479) as follows: “No stock company or corporation shall be licensed to practice architecture, but the same may employ licensed architects.” And counsel argue that it was evidently not the intention of the Legislature to prohibit a corporation from doing architectural work for others, provided such work is done by licensed architects in the employ of the corporation, first, because the evident purpose of the act is the protecting of the public by preventing incompetent and unskilful men from engaging' in the practice of architecture, which purpose is accomplished where the architectural work is actually performed by a duly licensed architect; second, because the prohibition in said section 5 is only against a corporation being licensed to practice architecture, the purpose of which is obvious, as a corporation being an impersonal entity cannot appear before an examining board and answer questions and meet the other requirements mentioned in section 4 of the act; and third, because by the provision that a corporation “may employ licensed architects” the Legislature expressly recognized the right of a corporation to do architectural work for others by employing licensed architects. Counsel for plaintiff, in their endeavor to explain the purpose and meaning of the clause that a corporation “may employ licensed architects,” contend that this was intended merely to authorize corporations, such as railroads and large industrial corporations, to employ licensed architects in connection with their own business enterprises. But in our opinion the contention is without merit, because no such provision was necessary as corporations always had that right.

After due consideration we have reached the conclusibn that the defendant corporation was not guilty of any violation of the act and that the trial court erred in entering a judgment against it. The proof showed that while the corporation made the contract for the doing of the architectural work mentioned, the work was actually performed by and under the direction of a duly licensed architect, who was an employee of the corporation.

By other legislative enactments and judicial decisions it has been recognized that corporations may engage in callings of a similar nature to that of practicing architecture in which licenses to individuals are required. By statute of this State it is provided that dentists shall be examined and licensed before practicing, and although a corporation as such cannot receive such a license, yet it is recognized that corporations may engage in the practice of dentistry by employing licensed dentists to do the work. (Hurd’s St. 1913, ch. 91, secs. 37 and 44, pp. 1612, 1615, J. & A. 7435, 7450; Hubbard v. Martin, 184 Ill. App. 534.) So with pharmacists. (Hurd’s St. 1913, ch. 91, sec. 19, p. 1606, J. & A. jf 7413.) And by a recent act of the Legislature (Laws of Illinois, 1915, p. 432) provision is made for the licensing of structural engineers. In section 10 of that act it is provided that while no corporation shall be licensed to practice structural engineering, yet it may prepare drawings, plans, etc., for buildings and structures if its chief executive officer or managing agent in the State shall be a structural engineer, licensed under said act.

In the State of Nebraska it is provided by statute that “it shall be unlawful for any person to practice medicine, surgery or obstetrics or any of the branches thereof, in this State, without first .having applied for and obtained from the State Board of Health a license so to do.” In State Electro-Medical Institute v. State, 74 Neb. 40, it is decided (1) that while a corporation is in some sense a person and for many purposes is so considered, yet it is not such a person as can be licensed to practice medicine; and (2) that the making by a corporation of contracts to furnish the services of qualified physicians duly licensed under said statute, and the furnishing of snch services by the corporation, is not a violation of snch statute. The court says (p. 43): “The intention of the law is that one who undertakes to judge the nature of a disease, or to determine the proper remedy therefor, or to apply the remedy, must have certain personal qualifications, and if he does these things without having complied with the law he is subject to its penalties. Making contracts is not practicing medicine. Collecting the compensation therefor is not practicing medicine within the meaning of this statute.” In State Electro-Medical Institute v. Platner, 74 Neb. 23, it is also decided that the contracts of a corporation to furnish the services of qualified and licensed physicians, members of the corporation or its agents, for an agreed compensation, are not prohibited by the statutes of that State, nor are they against public policy. We think that these decisions, in principle, are pertinent to the question presented in the instant case. (See also, Crall & Ostrander v. Commonwealth, 103 Va. 855; Davidson v. State, 77 Md. 388.)

Counsel for plaintiff place considerable reliance on the case In re Co-operative Law Company, 198 N. Y. 479, but we do not think the case is much in point. By statute of the State of New York it was made unlawful for any corporation to practice law, to render or furnish legal services or advice, to furnish attorneys or counselors for that purpose, or to advertise for or solicit legal business, and it was held in the above case that, “a corporation can neither practice law nor hire lawyers to carry on the business of practicing law for it any more than it can practice medicine or dentistry by hiring doctors or dentists to act for it.” Apparently the public policy of the State of. New York as to corporations practicing dentistry, etc., is different from that of this State as evidenced by our statutes concerning the licensing of dentists, pharmacists and structural engineers, and the licensing of architects under the act in question.

The judgment of the Municipal Court is reversed.

Reversed.


text:
    Peter Cristofano and Vincent Di Cicco for use of Peter Christofano, Defendants in Error, v. William Anton and James Anton, Plaintiffs in Error.
    Gen. No. 21,227.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed February 24, 1916.
    Statement of the Case.
    Action on account stated and for goods sold and delivered by Peter Cristofano and Vincent Di Cicco for use of Peter Christofano, plaintiffs, against William Anton and James Anton, defendants. From a judgment against both defendants, James Anton brings error.
    A third codefendant, Nick Anton, was not served with process. While the statement of claim in the Municipal Court showed the plaintiffs to be “Peter Cristofano and Vincent Di Cicco for the use of Peter Christofano,” the summons merely called defendants to answer unto “Peter Christofano.” Defendant, who appeals, appeared and filed affidavits.
    W. A. Morrow, for plaintiff in error James Anton.

      Abstract of the Decision.
    1. Judgment, § 196

      —when judgment may he entered against defendants served. The trial court may enter judgment against two defendants, in action on account stated and for- goods sold and delivered, notwithstanding that a third codefendant was not served with process.
    2. Municipal Coubt of Chicago,—when question of variance between statement of claim and summons cannot be raised. Variance between a summons in an action in the Municipal' Court of Chicago, which directs defendants to answer unto “Peter Christofano” and a statement of claim which alleges plaintiffs to be Peter Cristofano and one other for the use of Peter Christofano, cannot be raised after defendants have filed affidavit of merits nor after the finding by motion in arrest of judgment.
    Laurence M. Fine and Edward Drobnis, for defendants in error.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Nate H. Ehrlich, Defendant in Error, v. Lakeside Fish & Oyster Company, Plaintiff in Error.
    Gen. No. 21,239.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in the Branch Appellate Court, at the March term, 1915.
    Affirmed.
    Opinion filed February 24, 1916.
    Statement of the Case.
    Action by Nate H. Ehrlich, plaintiff, against Lakeside Fish & Oyster Company, defendant, to recover $375.02 for two -consignments of fish sold and delivered to defendant. From a judgment for plaintiff, defendant seeks writ of error.

      Abstract of the Decision.
    1. Appeal and ebeob, § 1236

      —when defendant estopped to assert insufficiency of evidence to sustain verdict. Where counsel for defendant admits the amount claimed by plaintiff, he cannot be heard in the Appellate Court to contend that the evidence did not warrant a verdict or judgment for such sum.
    2. Evidence, § 255*—when entries in account books kept by purchaser of goods not admissible against seller in action. In an action to recover on an account for merchandise sold and delivered to defendant, entries in account books kept by the purchaser are not admissible in evidence against the seller.
    At the beginning of the trial the attorney for defendant admitted that defendant had received the fish and that the number of pounds charged for was correct, and stated in substance that the only question in tiie case was whether plaintiff was the vendor of the fish or plaintiff’s parents, M. Ehrlich and Fannie Ehrlich; in other words, whether immediately prior to the sale and delivery plaintiff was the owner thereof or plaintiff’s parents. Thereupon the court suggested that this issue had better be determined by a jury, and the trial proceeded before a jury. The jury returned a verdict in favor of plaintiff and assessed his damages at the sum of $375.02, upon which verdict the court entered judgment against the defendant.
    Harold J. Finder, for plaintiff in error.
    Tone & Challenger, for defendant in error.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.


author: Mr. Justice Barnes Mr. Justice Barnes

text:
    Donald A. Curran, Appellee, v. Chicago Short Line Railway Company, Appellant.
    Gen. No. 20,970.
    1. Commerce, § 4

      —when railroad engaged in interstate commerce. In an action brought under the Federal Employers’ Liability Act to recover for personal injuries alleged to have been sustained by reason of the fact that the car causing the injuries was not equipped with a coupler coupling automatically on impact, as required by such act, the fact that the evidence is conflicting as to what railroad was the owner of the car causing the injury is immaterial, as far as the application of such act is concerned, where it appears that such car is owned by one or the other of two railroads, both of which are engaged in interstate commerce.
    2. Commerce, § 4*—when railroad engaged in interstate commerce. Where freight cars from railroads engaged in interstate commerce are received by defendant, who participates in the transportation to destination, and where defendant moved a car to be weighed for the purpose of determining the net weight of an interstate load and where there was no proof that the car being weighed had been withdrawn from service in interstate commerce, held that the moving of such car is a part of the interstate commerce in which defendant is engaged, within the meaning of the Federal Employers’ Liability Act, requiring such cars to be equipped with couplers coupling automatically on impact.
    3. Master and servant, § 760*—when proximate cause of injury to braheman coupling cars question for jury. In an action brought under the Federal Employers’ Liability Act to recover for personal injuries sustained by plaintiff, a freight brakeman, while coupling a car alleged to be equipped with a coupler not coupling automatically on impact, as required by the statute, where the evidence was conflicting as to whether the proximate cause of the accident resulting in the injuries for which recovery is sought was the defective coupler, requiring plaintiff to go between the cars in order to make the coupling, or the fact that as plaintiff signaled the engineer to start the train he slipped on a piece of coal, causing his foot to slide under the wheel of the car as the wheel began to move, the question of proximate cause was one for the jury.
    4. Master and servant, § 689*—when evidence insufficient to establish defectiveness of coupling belonging to freight train. In an action brought under the Federal Employers’ Liability Act to recover for personal injuries sustained while plaintiff, a freight brakeman, was engaged in coupling a car alleged to be equipped with a coupler not coupling automatically on impact, as required by the statute, evidence held to preponderate against plaintiff’s contention that the coupler in question was a defective appliance.
    5. Master and servant, § 689

      —when evidence'sufficient to sustain finding of negligence in not providing suitable coupler. Under the Federal Employers’ Liability Act, proof of a failure of a coupler to couple automatically on impact makes prima facie case of negligence, but does not preclude defendant from rebutting same.
    6. Appeal and ebror, § 1034*—when judicial notice will not be taken of manner of construction of railroad couplings. The Appellate Court will not take judicial notice of the difference in construction or mechanism of couplers when the record is silent on the question.
    7. Witnesses, § 254*—when jury may not reject testimony of witnesses. The prerogative of the jury to determine the credibility of witnesses does not justify an arbitrary rejection of testimony of witnesses, who have not been discredited, and the logical inferences from such testimony, especially when reasonable, corroborated, uncontradicted, and opposed at points of difference only by the unsupported testimony of a solitary, interested witness.
    8. Master and servant, § 689*—when evidence insufficient to sustain finding that car coupler was defective. In an action brought under the Federal Employers’ Liability Act to recover for injuries sustained by plaintiff, a freight brakeman, while attempting to couple a car alleged to have been equipped with a coupler not coupling automatically on impact, as required by the statute, where plaintiff’s evidence as to the defect was limited to proof that at the time of the accident the coupler failed to couple automatically on impact, and defendant offered affirmative evidence tending to show that the coupler in question was not defective, a verdict for plaintiff held manifestly against the weight of the evidence.
    On Petition for Rehearing.
    Appeal and error, § 1740*—when Appellate Court will not depart from customary practice and follow Federal practice. The Appellate Court will not depart from practice that has always obtained in appellate tribunals in this State in respect to finding the facts and entering judgment in a case predicated on a Federal statute, where it is contended that such practice violates the right to trial by jury guarantied by the seventh amendment of the Federal Constitution, and that the Appellate Court should conform to the practice of the Federal courts in that regard.
    Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed with finding of fact.
    Opinion filed February 24, 1916.
    Rehearing denied March 4, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    West & Eckhart, for appellant.
    Morse Ives, for appellee.

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

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

   Mr. Justice Barnes

delivered the opinion of the court.

This appeal is from a judgment for $5,000 damages for personal injuries received by appellee (plaintiff), a brakeman in the employ of appellant (defendant). The count of the declaration relied on is predicated on the Federal Employers’ Liability Act and the Federal Safety Appliance Act. It charges, in substance, that defendant was a common carrier engaged in interstate commerce; that at the time of the accident both it and plaintiff, its brakeman, were engaged in interstate commerce; that defendant permitted one of the couplers on the car in question to be in a defective condition so that it would not couple automatically and could not be coupled without a brakeman going* between said car and the one next to it; that plaintiff was thus obliged to go between the cars and while in the act of opening a coupler stepped and slipped on a piece of coke or coal and was caught under a wheel of one of said cars and thereby injured.

There was conflicting evidence as to the identity of the car, plaintiff’s tending to show it belonged to the “Big Four” road, and defendant’s, that it belonged to the “B. & 0.” The weight of the evidence supports defendant’s contention. But as we view it, it is immaterial to the legal questions presented, to which of the two railroads so designated the car belonged, as both were engaged in interstate commerce and the car was received by defendant from one of them for delivery over its tracks to the consignee.

After the car was unloaded it was switched by defendant to the scale track in its yards to be weighed. At the north end of the scale track was a scale used for weighing cars. Standing on this track were three empty cars, the southernmost of which was a “coke” car. In a switching movement just before the accident by a crew to which plaintiff belonged, two empty flat cars were being pushed north on this track by an engine for the purpose of coupling to said coke car the north flat car on which plaintiff was riding. At the first impact the cars failed to couple. The engine came to a stop and plaintiff went between the flat ear and the coke car to adjust the knuckle on the latter, and after adjusting it gave a signal to the engineer to go ahead, and while walking out stepped on a piece of coke or coal causing his left foot to slide under the wheel of the car just about the time of the second impact when again there was a failure to couple.

Appellant contends that the evidence fails to show that defendant was engaged in interstate commerce or that the car with the alleged defective coupler was being hauled or used on defendant’s line in moving interstate traffic. There can be no question on this record as to the applicability of both Federal acts. As the car was used on a road engaged in interstate commerce, it was required by the Safety Appliance Act to be furnished with an automatic coupler (Southern Ry. Co. v. United States, 222 U. S. 20); and as defendant received loaded freight ears from roads engaged in interstate commerce and participated in the transportation to their place of destination, it was a common carrier engaged in interstate commerce. (Devine v. Chicago & C. River R. Co., 174 Ill. App. 324, and 259 Ill. 449; United States v. Colorado & N. W. R. Co., 157 Fed. 321.) Being so engaged, the additional test of the application of the Federal Employers’ Liability Act was whether the work engaged in at the time of the injury was a part of the interstate commerce in which the carrier was engaged. (Pedersen v. Delaware, L. & W. Ry. Co., 229 U. S. 146, 3 N. C. C. A. 779; Illinois Cent. R. Co. v. Behrens, 233 U. S. 473, 10 N. C. C. A. 153.) The work being done was the moving of an empty car to be weighed in order to determine the net weight of an interstate load. Upon a very similar state of facts in Wheeling Terminal Ry. Co. v. Russell, 209 Fed. 795, 799, it was held that it not having been shown that the cars being weighed had been withdrawn from service in interstate commerce, the' presumption was that they remained in it. There was no proof in the instant case tending to show any such withdrawal. Hence the same presumption must obtain.

Appellant also urges that defendant’s negligence, if any, to maintain a proper appliance was not the proximate cause of injury, and that the court should have so held- as a matter of law and have directed a verdict in its favor. The contention is that plaintiffs injury was due primarily to his negligently signaling the engineer to go ahead before he stepped out from between the cars; and secondarily, to his slipping on the piece of coal or coke. Both plaintiff’s signaling at the time and place and his slipping on the piece of coal might be regarded as mere links in the chain of causation connecting defendant’s alleged negligence to maintain properly its coupling appliance with plaintiff’s injury, and thus present a question of fact as to which different conclusions might be reached, and therefore a question for the jury. (Donegan v. Baltimore & N. Y. Ry. Co., 165 Fed. 869; Erie R. Co. v. Russell, 183 Fed. 722; Grand Trunk Western Ry. Co. v. Lindsay, 201 Fed. 836.)

But we agree with appellant that the preponderance of the evidence is manifestly against plaintiff’s claim that there was a defective appliance. There was no question but that the car was furnished with automatic couplers and other appliances that obviated the necessity of going between the cars to couple or uncouple them provided they were in working order. The question of fact was, was there any defect therein so that they would not work if properly handled. Plaintiff alleged the existence of a defective condition. The burden was on him to prove the allegation. He made no attempt to prove any specific defect, but relied on making out a prima facie case. .The unquestioned fact that the cars did not couple on impact was supplemented by plaintiff’s testimony that as his car approached the coke car he observed that the couplers on both were in position to couple; that after they failed to couple on the first impact he found the device on the flat ear operated properly but that the knuckle of the coke car was open, and the pin down; that he raised it, closed the knuckle and dropped the pin again, and that the cars failed to couple on the second impact, but that he “did not observe anything about the coupler as to why it opened.” The proof of a defect, therefore, consisted entirely of the" fact that the cars failed to couple automatically on impact, and plaintiff’s testimony that the couplers were in a proper position for automatic coupling. If, however, as the uncontradicted evidence shows, the couplers operated automatically immediately before and immediately after the occasion in question, the palpable inference would be that the couplers were not placed in a proper position for coupling, for no matter how perfect the mechanism unless the couplers are in a position for coupling it cannot be effected with even automatic couplers. The duty of seeing that they were in such position manifestly rested upon the brakeman. If they were not, then the failure to couple on impact cannot be said to be due to a defect in the appliances.

It was said in Chicago, R. I. & P. Ry. Co. v. Brown, 229 U. S. 317, 3 N. C. C. A. 826, where a violation of the Safety Appliance Act was charged,, that the Taylor case, 210 U. S. 281, and Chicago, B. & Q. R. Co. v. United States, 220 U. S. 559, settled “that the failure of a coupler to work at any time, sustains a charge of negligence in this respect.” Citing these cases as authority, counsel for appellee seems to regard the mere fáct of the failure of cars to couple on impact as conclusive of 'the question of negligence. It would be strange indeed, though it be the carrier’s absolute duty to maintain the appliances required by said act, as held in said cases, if the carrier were not permitted to show in defense that it had performed such duty and that such failure was in fact due not to a defective appliance but to something else. Such proof is quite different from reliance on want of knowledge or exercise of due diligence, neither of which is a defense where the duty alleged to be violated is absolute. But proof that cars properly equipped to couple automatically did not couple on impact, while prima facie evidence of a violation of the act, is not conclusive of the fact that the appliances were out of order when the contrary is susceptible of proof.

Appellant contends that the alleged position of the coupler and pin on the coke car after the first impact was physically improbable if not impossible. We need not discuss the contention, for whether so or not, defendant was not precluded from rebutting the inference of negligence that might be drawn from plaintiff’s proof, and we think it was completely refuted by affirmative and uncontradicted evidence that the appliances were in good working order.

Plaintiff himself testified that there was no difficulty in coupling or uncoupling this particular car on two occasions on the same day before the accident, one before and one after it was unloaded, and a fellow switchman testifying to the same thing said also that there was no difficulty in coupling or uncoupling said car immediately after the accident—once when it was placed on the scales to be weighed and once when it was placed and left on another track. The yard inspector and the yard manager each testified that immediately after the accident, before the coke car in question was moved or anything done thereon, he examined its coupling appliances and found them in good order. The manager also testified that he then identified the car as a B. & O. car and took its number. There was proof that a B. & O. freight car of that number was inspected on its arrival at S'outh Chicago by the ,B. & O. railroad inspector and again by another of its inspectors on January 3rd following, when it was delivered by defendant to the B. & O. railroad, and that the same car was inspected by defendant’s inspector on December 26th when it arrived in defendant’s yards as well as immediately after the accident, and that on each occasion the safety devices were found to be in good order.

Against the force of such evidence counsel for appellee argues that it was not inconsistent with an existing defect and that its credibility was for the jury to determine. In support of the first contention he calls attention to plaintiff’s testimony that the coupler in question was a “ Janney” coupler, and proceeds to argue that its construction is such that when certain parts are slightly worn the coupler will at times fail to operate on impact and on other occasions will operate without difficulty, but we find no evidence in the ■ record on which to base such argument. The difference in construction or mechanism between a “Janney” and any other type of coupler is a subject on which the record is silent and of which we have no knowledge and cannot take judicial notice.

The credibility of defendant’s witnesses was not directly assailed, there was nothing inherently improbable in their testimony and they were not impeached nor directly contradicted. The jury’s unquestioned prerogative of determining the credibility of witnesses does not justify an arbitrary rejection of testimony of witnesses who have in ‘ no way been discredited and the logical inferences therefrom, especially when it is reasonable, corroborated, uncontradicted, and opposed at the points of difference only by the unsupported testimony of a solitary, interested witness.

The failure of the cars to couple was attributable either to a specific defect not proven and which did not exist if defendant’s evidence was true, or to a mistake or misrepresentation as to the position of one or both of the couplers before or after the impact. In his routine plaintiff may not have been particularly observant and could have been mistaken, and such a conclusion is most probable in view of the unquestioned evidence that the appliances not only worked perfectly just before and after the accident, but were examined and found in perfect condition immediately after it. Hence, we can reach no other conclusion than that the verdict was manifestly against the weight of the evidence. There is nothing in the record to indicate that other evidence on this subject is obtainable. In accordance, therefore, with the duty of this court to weigh the evidence and its power to render final judgment in such a case (Borg v. Chicago, R. I. & P. Ry. Co., 162 Ill. 348; Donelson v. East St. Louis Ry. Co., 235 Ill. 625), we reverse the judgment and find as a fact that defendant did not permit the couplers to be in a defective condition as alleged in the declaration.

Reversed with finding of fact.

Finding of Fact. We find the issues for the appellant, the Chicago Short Line Railway Company, that it was not guilty of negligence as alleged in the declaration herein of Donald A. Curran, appellee; that it did not permit one of the couplers on its car, as therein alleged, to be in a defective condition so that it would not couple automatically without a brakeman going between said car and the one next to it.

Opinion on Petition for Rehearing.

Mr. Justice Barnes

delivered the opinion of the court.

A rehearing is asked herein based on the contention that in a case where the cause of action arises on a Federal statute the practice that obtains in Appellate tribunals of this State of finding the facts and entering final judgment thereon (Borg v. Chicago, R. I. & P. Ry. Co., 162 Ill. 348; Donelson v. East St. Louis Ry. Co., 235 Ill. 625) violates the right to trial by jury guarantied by the seventh amendment of the Federal Constitution, and that we should conform to the practice of the Federal courts in that regard. Without discussing the point, we do not deem it well taken or that we should depart from a practice that has always obtained in this State. A rehearing will be denied.


author: Mr. Justice Barnes

text:
    James Cline, trading as J. & D. Cline, Appellee, v. Chicago, Milwaukee & St. Paul Railway Company, Appellant.
    Gen. No. 21,189.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clinton F. Irwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed with finding of fact.
    Opinion filed February 24, 1916.

      Statement of the Case.
    Action by James Cline, trading as J. & D. Cline, plaintiff, against the Chicago, Milwaukee & St. Paul Railway Company, defendant, for damages done to plaintiff’s automobile truck and goods therein, resulting from collision with defendant’s locomotive at a public crossing. From a judgment for plaintiff, defendant appeals.
    The negligence charged in the declaration was the running of the engine across the highway without ringing a bell or whistling at a distance of eighty rods from crossing, and without ringing bell or blowing whistle until it had reached such highway. The railroad tracks were double, one hundred feet wide, and ran north and south at right angles to the highway. Plaintiff was going east on the highway and engine was going north. Plaintiff and his chauffeur testified that though they looked they did not see the locomotive until they were on the westerly track when they jumped from the track permitting it to continue under power and collide with the engine. The evidence showed that at a distance of thirty to forty feet west of the easterly track there was an unobstructed view of the tracks for at least a quarter of a mile from the crossing. While defendant testified that bushes in the southwest corner of intersection of highway and tracks prevented him from seeing down the tracks until he was within ten feet thereof, other witnesses placed the distance at from thirty to forty-five feet. The chauffeur said he could have stopped the truck within ten feet.
    As to the negligence charged in the declaration, three witnesses on each side testified directly on the subject. Those for plaintiff—himself, his chauffeur and Bleimehl’s brother—said they heard no whistle or bell and none was sounded. The muffler of the automobile was open. One witness a block and a half west while doing his chores was attracted to the truck’s passing by its “terrible noise.” Another whom it passed within a half block of the tracks described its noise as unusual, “like an old threshing machine.” He however heard the train and its whistle, though he could not see the train, while stopping for the truck to come up and pass him and was anticipating whether the truck would stop. The engineer testified that the fireman was continuously ringing the bell from eighty rods south where he blew the whistle and which he repeated within four hundred feet of the crossing. The fireman was not a witness, being at the time in the regular army in the east. But two other witnesses confirmed the engineer’s testimony as to the whistling. One was on the tracks four hundred feet north of the crossing going south, the other within one half block of the tracks on the highway going east. Both of them also heard the gong at the crossing sounding, but could not say whether the bell was ringing or not.
    Abstract of the Decision.
    1. Railroads, § 738

      —when driver of automobile truck attempting to cross tracks guilty of contributory negligence. In an action for damages for injury to an automobile truck and goods as a result of a collision at a railroad crossing, where plaintiff could have seen defendant’s truck when thirty feet away, and was driving the truck at such a speed that it could have been stopped a.t any time within ten feet, held that plaintiff was guilty of contributory negligence.
    O. W. Dynes, and C. S. Jefferson, for appellant; H. H. Field, of counsel.
    Rice, Lowes & O’Neil, for appellee.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same toyic and section number.

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

   Mr. Justice Barnes

delivered the opinion of the court.

2. Railroads, § 738 —when driver of automobile truck attempting to cross railroad track guilty of contributory negligence. In' an action for damages caused by collision of a railroad engine with an automobile truck, the law will not tolerate the absurdity of allowing plaintiff to testify that he looked but did not see the train, when the view was unobstructed and where if he had properly exercised his sight he must have seen it.

3. Railroads, § 729*—when negative testimony as to ringing of bell insufficient to overcome positive testimony. In a suit for damages caused by a locomotive colliding with an automobile truck at a highway crossing, and where plaintiff’s automobile truck, according to testimony, made a “terrible noise,” the situation of the occupants of the truck was less favorable for hearing, and their negative evidence is not entitled to more weight than positive evidence as to the fact that a whistle was blown by defendant’s locomotive.

4. Appeal and error, § 1802*—when judgment reversed with finding of fact. Where a verdict is against the weight of evidence on the question of negligence and contributory negligence, the judgment will be reversed with a finding of fact on such questions.

5. Railroads, § 735*—when evidence insufficient to sustain finding that defendant guilty of negligence in failing to ring bell or blow whistle of locomotive. In an action for damages for injury to an automobile truck and goods as a result of a collision at a railroad crossing, evidence held insufficient to sustain a finding that defendant was guilty of negligence in failing to blow the whistle and ring the bell of the locomotive.