text:
    A. H. Clark for use of Tuscola Benefit and Building Association, Appellee, v. National Union Fire Insurance Company of Pittsburg, Pennsylvania, Appellant.
    1. Res ad,judicata—when doctrine applicable. Where on a second appeal the facts as to the assignment of an insurance policy are substantially the same, the former opinion is res adjudícala as to such question.
    2. Instructions—when not misleading. Where alleged agents of an insurance company consent to an assignment of a policy on sale of the property insured, an instruction that the company is bound by the consent to the assignment unless the plaintiff had actual notice, of the revocation of the agency is not misleading where an instruction for the defendant fully explains what is meant by and what constitutes actual notice.
    Action on a policy of insurance. Appeal from the City Court of Mattoon; the Hon. John McNutt, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.
    James Vause, Jr., for appellant.
    F. N. Henley and Clarence W. Hughes, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought by plaintiff for the use of the Tuscola Benefit and Building Association, upon a policy of insurance issued by defendant to Charles E. Collins and Robert Goar, as Collins and Goar, on certain property located in Mattoon, Illinois; the policy was issued by and through McCulloch and Hampson, agents of defendant, on the eighteenth day of March, 1905, for a term of three years. After the issuance of this policy, Collins and Goar executed a mortgage on these premises to the usee, the Tuscola Benefit and Building Association, which will hereafter be designated as the plaintiff. McCulloch and Hampson. attached to this policy the following mortgagee clause:

“Mortgagee Clause.
“Loss, if any, payable to The Tuscola Benefit and Building Association of Tuscola, Illinois, Mortgagee as hereinafter provided:
“It being hereby understood and agreed, That this insurance as to the interest of the Mortgagee only therein, shall not be invalidated by any act or neglect of the Mortgagor or owner of the property insured, * # * Provided, also, that the Mortgagee shall notify this company of any change of ownership or increase of hazard which shall come to his or their knowledge, and shall have permission for such change of ownership or increase of hazard duly endorsed on this policy.' * * * It is Further Agreed, That in case of any other insurance upon the property hereby insured, then this Company, shall not be liable under this Policy for a greater proportion of any loss sustained than the sum hereby insured bears to the whole amount of insurance on said property, issued or held by any party or parties having an insurable interest therein. It Is Also Agreed, That whenever this Company shall pay the Mortgagee any sum for loss under this policy and shall claim that as to the Mortgagor or owner, no liability therefor existed, it shall at once and to the extent of such payment, be legally subrogated to all the rights of the party to whom such payment shall be made, under any and all securities held by such party for the payment of said debt. But subrogation shall be in subordination to the claim of said party for the balance of the debt so secured. Or said Company, at its option, may pay the said Mortgagee the Whole debt so secured, with all the interest which may have accrued thereon to the date of such payment, and shall thereupon receive from the party to whom such payment shall be made, an assignment and transfer of said debt, with all securities held by such parties for the payment therefor.
“McCulloch & Hampson, Agent.”

There is no date upon this mortgagee clause; the law, therefore, presumes it was attached at the time of the execution of the mortgage.

After the execution of this mortgage, Collins and Goar sold and conveyed the property to A. H. Clark, and on March 6,1907, after the execution of this deed, the interest of Collins and Goar in this policy was assigned to A. H. Clark by endorsement thereon, and on March 6,1907, McCulloch and Hampson, the agents who issued this policy for defendant, signed the following consent to such transfer:

“The National Union Fire Insurance Company hereby consents that the interest of Collins and Goar as owner of the property covered by this policy be assigned to A. H. Clark.
“McCulloch & Hampson.”

After the conveyance of the premises and the assignment of this policy to A. H. Clark, A. H. Clark executed a new mortgage to plaintiff for the same amount and upon the same premises, and the old mortgage was released of record. This new mortgage did not constitute payment or satisfaction of the old mortgage, but was a' renewal thereof. Some time after the transfer of this property to Clark and the execution of the mortgage by him to the plaintiff, the property was destroyed by fire. Plaintiff demanded payment of the loss under the mortgagee clause attached to its policy; all liability was denied and payment refused by defendant on the ground that there had been a violation of the terms of the policy of insurance by the transfer of the title to the property without notice to it or without its consent, denying that McCulloch and Hampson were its agents at the time of the transfer of the policy from Collins and Goar to Clark, denying that they had any authority to consent to the assignment of the policy or the transfer of the property, and insisting that any notice to or any knowledge of McCulloch and Hampson of the transfer of the insurance policy or conveyance of the premises was not a notice to defendants. The clause which it is insisted prohibited transfer of the property without the consent of the defendant is as follows:

“The policy shall be void if any change other than by death of the insured takes place in the interest, title or possession of the subject of insurance, whether by legal process or judgment or by voluntary act of the insured, or if this policy be assigned before a loss.”

This cause was before this court on a former hearing, on appeal from a judgment rendered in favor of defendant by the trial court without a jury, upon motion of defendant to exclude all the evidence and find the issues for the defendant. The opinion rendered at that time is reported in Volume 159, Ill. App. 256. The evidence of the defendant tends only to show that McCulloch and Hampson were not the agents of the defendant at the time of the consent to the transfer of the policy from Collins and Goar to Clark, and that defendant had no notice of the' assignment or transfer from Collins and Goar to Clark; and the evidence of the plaintiff being substantially the same as on the former hearing, what we have said in the former opinion is equally applicable to the facts in the case as now before us, and we see no reason to change our views as expressed in that opinion, and any further discussion thereof is unnecessary, even if we were so inclined, the doctrine of res adjudicaia is applicable to all questions determined by the former appeal. Wilson v. Carlinville National Bank, 87 Ill. App. 364; Davis v. Munie, 140 Ill. App. 172.

All questions of fact involved in the case have been found against the defendant by the verdict of the jury ; this court should not disturb those findings unless they are clearly and manifestly against the weight of the evidence, and we are of the opinion that the evidence fully supports and warrants the verdict.

The only question remaining for this court to determine is whether or not there has been any error of the trial court in the admission or rejection of evidence or in the giving or refusing of instructions. We find no error in the rulings on the evidence which would justify a reversal of this cause.

Defendant severely criticizes the fifth instruction given to the jury on behalf of plaintiff by which the jury were informed that unless plaintiff had actual notice or knowledge that McCulloch and Hampson were no longer agents of the defendant at the time that they consented to the assignment of the policy, defendant was bound by the acts of the former agents; and insist that this instruction required defendant to prove that plaintiff was given or had positive notice of the revocation of the agency of McCulloch and Hampson, and that under the law defendants were only bound to prove that plaintiff had such notice of that fact as would put them upon inquiry to ascertain whether or not at the time of the consent to these transfers Mc-Culloch and Hampson were agents of defendant.

By instruction No. 2 given on behalf of defendant, the jury were instructed that if they believed from the evidence, whether direct or circumstantial, that the officers of the plaintiff knew that McCulloch and Hampson were not agents of defendant at the time of the endorsement of such consent on the policy, and that plaintiff failed thereafter to give defendant any notice of such change in title, then plaintiff could not recover; and by instruction No. 6 given on behalf of defendant, the jury were instructed that where facts or circumstances are known to a person relating to matters in which he is interested sufficient to make it his duty as an honest and prudent man to inquire concerning the rights of other parties in the same matter, and that such course of inquiry if followed, would lead to a discovery of rights in conflict with his own, then he will be chargeable with notice of all that he might have discovered and he cannot be heard- to say that he did not actually know such facts, and that if the plaintiff had knowledge of facts and circumstances relating to the change of agents at Mattoon, it was the duty of its officers as honest and prudent persons to make inquiries thereof, and if such inquiry would have developed the fact that McCulloch and Hampson were no longer agents of defendant, and plaintiff failed to make such inquiry, then they are chargeable with notice of such change of agents.

While the instruction given on behalf of the plaintiff used the expression “actual notice,” the instruction given' on behalf of the defendant fully explains and informs the jury what was meant by and what constituted actual notice, and there can be no reasonable theory presented by which the jury may have been misled by these instructions.

Actual notice is not necessarily direct and positive notice. Mayor v. Whitington, 78 Md. 231.

We find no prejudicial error in the rulings of the court upon the giving or refusing of instructions. Substantial justice has been done. Beard v. Maxwell, 113 Ill. 440; W. Chicago St. R. R. Co. v. Maday, 188 Ill. 308-10.

The judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Phirbrick

license: Public Domain

text:
    American Surety Company of New York, Appellant, v. Eli S. Sperry, Guardian of Wilmer G. Chapman and Chester H. Chapman, minors, and J. F. Chapman, guardian of same minors, Appellees.
    1. Appeal—trial de novo. Where a prohate matter is appealed from the county court or probate court to the circuit court, the trial is de novo.

    2. Appeal—when remand is improper. Where a probate matter is appealed from the county court or probate court to the circuit court, a remand for hearing is improper, but the circuit court should retain the cause for a final hearing upon the questions raised by the appeal.

      3. Appeal—harmless error. Where a probate matter appealed from the county court to the circuit court is remanded but a second appeal is taken to the circuit court, and an appeal prosecuted to the appellate court, no harm is done by the irregular practice.
    4. Guardianship—appeal by surety on bond. A surety on a guardian’s bond may appeal from a judgment of the circuit court discharging him where such judgment also approves an illegal investment made by the guardian.
    5. Guardianship—rights of sureties. A surety on a guardian’s bond may through the medium of the county or probate court compel the guardian to make a proper and lawful investment of the ward’s money.
    6. Guardianship—investments. The county or probate court has no chancery jurisdiction or powers to ratify or confirm investments made by a guardian not authorized by statute.
    7. Guardianship—disaffirmance of investment. Minor wards on becoming of age may disaffirm land investments unauthorized by statute if such investments should become disadvantageous.
    8. Guardianship—rights of sureties. A surety on a guardian’s bond may compel the restoration of a fund expended in an illegal investment even though a subsequent guardian has ratified such investment.
    9. Guardianship—-removal of incumbrance. The probate or county court has power to direct a guardian to use funds in his hands to remove an incumbrance on land donated to his minor wards.
    10. Guardianship—when no power to invest in real estate. A guardian has no power to invest any funds not derived from the sale of real estate in other real estate.
    11. Guardianship—guardian cannot profit by illegal investment. Where a hill is brought to have a guardian restore a fund illegally invested, he cannot retain the profit there might he in such investment.
    Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the October term, 1911.
    Reversed and remanded with directions.
    Opinion filed March 15, 1912.
    R. R. Gilkey, O. M. Jones and W. J. Bookwalter, for appellant.
    Rearick & Meeks and Acton & Acton, for appellees.
   Mr. Justice Phirbrick

delivered the opinion of the court.

Appellee Eli S. Sperry was appointed guardian of Wilmer Gr. and Chester H. Chapman, minors, in September, 1899, by the County Court of Vermilion County, and duly qualified as such guardian. In December, 1909, a grandfather of these minors notified the guardian that he .would advance seven thousand dollars for them if a suitable tract of land could be found in which to invest it. Appellee ascertained that the West- half of the Southwest quarter of Section Twenty-one (21), Town Twenty-one (21) North, Range Twelve (12), West of the Second P. M. could be purchased for seven thousand six hundred and fifty-six and 25/100 dollars. He then filed a petition in the County Court, setting forth that the grandfather desired to invest seven thousand dollars in real estate for the minors, but that it would require the investment by the guardian of six hundred fifty-six and 25/100 dollars of the wards’ money which he then had in his hands. The grandfather paid to the vendor seven thousand dollars, and this left the balance due on the land, six hundred fifty-six and 25/100 dollars, and by the payment of this amount the land would be the property of the wards free of all encumbrances. Upon a hearing on this petition, the County Court authorized the guardian to use six hundred fifty-six and 25/100 dollars in payment of this balance, and he did so.

On the twenty-third day of March, 1907, appellant herein became surety for appellee as guardian of these minors, and entered into its bond as such surety.

On October 5, 1907, appellee filed a petition in the County Court of Vermilion County, setting forth that he then had in his hands, belonging to these minors, a further sum of seven thousand dollars which he desired to invest, and reported to that court that he could purchase for sixteen thousand seven hundred seventy-five and 30/100 dollars, one hundred and sixty-seven and 753/100 acres of land in Section Twenty-five (25), Town twenty-one (21) North, Range Thirteen (13) West of the Second P. M. in said county, but that the land was encumbered by a mortgage of eight thousand dollars. He asked permission to purchase this tract by investing the seven thousand dollars cash, giving his note as guardian for seventeen hundred seventy-five and 30/100 dollars, and assuming the encumbrance of eight thousand dollars. Upon a hearing the County Court granted this petition and entered an order authorizing and directing the guardian to purchase said tract of land, the guardian made this purchase, taking the title in the name of his wards.

On March 27, 1908, appellee filed a new bond as guardian in the County Court of Vermilion County, with L. C. Messner and W. H. Bice as sureties.

Wilmer Gr. Chapman became of the age of fourteen years on August 9, 1909, Chester H. Chapman became of the age of fourteen on January 17, 1911, and each of them, on becoming of the age of fourteen years, nominated and selected as his guardian, the father, J. F. Chapman, who qualified and assumed his duties as such, and as succeeding guardian ratified this investment of the funds.

On December 5, 1910, the Probate Court of Vermilion County succeeded the County Court on all probate matters.

At the January term, 1909, of the County Court, appellant filed its petition, setting forth the fact of its having been surety on the bond of appellee as such guardian, and the filing of the succeeding bond by other bondsmen, asking for an order requiring appellee to file an account of his acts from the time of his appointment as such guardian to the time of the filing of said petition, and that he be required to restore and replace the funds which had been so invested, and on such being done and then on approval of the report, appellant as surety be discharged from all liability as such surety. The County Court sustained a demurrer to this petition, appellant prosecuted an appeal to the Circuit Court, where a demurrer was again sustained; it prosecuted an appeal to this court where the judgment of the Circuit Court was reversed and the cause remanded to that court with directions to overrule the demurrer and require the account to be filed as prayed. American Surety Co. v. Sperry, 156 Ill. App. 19. The cause having been remanded to the Circuit Court and by it remanded to the County Court, where appellee filed his account, objections were filed to that account by appellant; the objections filed and urged were that the investment of the wards’ funds in real estate was voidable by the minors, that the County Court had no jurisdiction to direct these funds to be so invested. The objections were overruled by the County Court, appellant prosecuted an appeal to the Circuit Court, where the objections were again overruled, and the account of the guardian, showing this investment of the wards’ funds, approved, and an order entered discharging appellant from any further liability upon its bond as surety for appellee as such guardian. Appellant prosecutes its appeal from that judgment.

When the cause was first before this court and the judgment of the Circuit Court reversed and the cause remanded to that court, the Circuit Court should have entered its order overruling the demurrer in compliance with the direction of this court, and required appellee to file his report in that court, and should then have proceeded to a final hearing. Where a probate matter is appealed from the County Court or Probate Court to the Circuit Court, the trial is de novo, and that court having once obtained jurisdiction by such appeal should retain the cause for a final hearing upon the questions raised by the appeal; it is not proper practice for the Circuit Court to remand a cause to the County Court for a hearing in that court, but a second appeal having been prosecuted to the Circuit Court, and from that court to this, no harm has been done by the irregular practice adopted. Snell, Admr., v. Weldon, Executor, 162 Ill. App. 11.

It is conceded that all parties in this matter acted in good faith, but appellant insists that the judgment of the Circuit Court in approving the account of appellee as guardian and discharging appellant from liability on its bond as surety for such guardian is a judgment which may be avoided by the minors at any time prior to or upon their arriving at lawful age, should the minors at any time desire to disaffirm such investment; that neither the County Court nor the Circuit Court on appeal had power under the laws of this state to authorize or direct the guardian to invest in real estate any funds of the minors which were not derived from the sale of other real estate, and that the acceptance of such investment by the succeeding guardian was not binding upon the minors, and is no protection to appellant as surety on the guardian’s bond; and that neither the Probate Court nor the County Court had chancery powers to make an order giving the guardian credit for such investments of the wards ’ funds in real estate, upon the hearing of objections to that report, that will protect appellant against wrongful investment of the funds by the guardian although made under the direction or order of the County Court.

Appellant, as surety on the guardian’s bond, is affected by the judgment of the Circuit Court, and has a right to prosecute this appeal therefrom. It was its duty to see that the guardian complied with the law. Gillett v. Wiley, 126 Ill. 326-27.

The only question raised upon this record is whether or not the investment of these funds by appellee as such guardian were authorized by law. It must be conceded that appellant, as surety upon the guardian’s bond, had the right to compel the guardian, through the medium of the County or Probate Court, to make a proper and lawful investment of the wards’ money, and if any unlawful or illegal investment was made to compel the guardian to restore the fund.

Section 34, Chapter 64 of Hurd’s Revised Statutes, 1909, authorizes the investment of the wards’ money in real estate where the proceeds have been derived from the sale of other real estate, and Section 32 requires that the guardian shall invest the funds of his ward which are not derived from the sale of real estate in securities, secured by first mortgage upon real estate, or other securities, bonds, etc., as approved, etc., and requires that the real estate shall be equal to at least twice the value of the amount secured by the mortgage; and the lien of the minor must be a first lien, while here the seven thousand dollars of these wards was invested subject to a prior mortgage of eight thousand dollars.

There is no statute in this state authorizing the County Court or Probate Court to direct or empower the guardian to invest any funds which are not derived from the sale of real estate in other real estate; the County or Probate Court has no chancery jurisdiction or powers to ratify or confirm any such investment by the guardian.

Even though it be conceded that the investment in these lands when made was a profitable investment for the wards, yet any time before the minors arrive at lawful age, if the lands should so depreciate in value that it would be an advantage and benefit to the minors to disaffirm this purchase upon arriving at majority they may do so (Morgan v. Johnson, 68 Ill. 190), and if such circumstances should occur, appellant as surety would be liable for any loss to the wards by reason of such investments.

Appellant is entitled to be protected against such contingency by requiring the guardian to restore the funds, and neither the fact that the present guardian has accepted and ratified such investment by appellee, nor that the County Court has attempted to ratify and confirm such investment can deprive appellant of this right.

Where, however, the minor is the owner of or has an interest in real estate, the Probate or County Court has power to permit and direct the guardian to use the funds in his hands for the purpose of protecting and guarding the rights of the minor in such real estate, and for this purpose may direct and authorize the use of funds not derived from the sale of real estate, and the fact that the grandfather paid seven thousand dollars for the purchase of the west half of the southwest quarter of said Section twenty-one for the purpose of giving this land to his grandchildren and which left an encumbrance or balance due upon the land, the County Court was authorized to direct the guardian to protect the title' of the wards secured by the payment of seven thousand dollars by the grandfather and invest the six hundred fifty-six and 25/100 dollars (Cheney v. Boodhouse, 135 Ill. 257), and the approval of that payment in the report of the guardian was proper.

In the purchase of the other tract the guardian was compelled not only to use funds of his wards which had accumulated in his hands, but he was required to and did assume an indebtedness equal to more than the cash paid on such purchase, and in addition to the assuming of this mortgage of eight thousand dollars, the court authorized him to execute a guardian’s note for seventeen hundred seventy-five and 30/100 dollars.

If circumstances should afterwards arise that the guardian was not able to meet this encumbrance, the entire amount of the wards’ funds invested in this tract was liable to be lost to them. For the purpose of preventing such conditions, and to guard against loss of the ward’s funds by improper investments of the guardian the legislature has provided how funds of the ward may be invested. Section 22, chapter 64, G-uardian and Ward, Hurd’s Bevised Statutes, 1909.

The objections made by the appellant to the approval of the guardian’s report were well taken, and it was error for the Circuit Court to overrule such objection; appellant was entitled to an order of that court directing the guardian to restore the seven thousand dollars which had been wrongfully and unlawfully invested in this tract of land, the trial court should have sustained such objections and ordered that the funds be restored.

A guardian cannot be permitted to profit by the use or investment of his ward’s funds, if they are not kept at interest upon such securities as are provided by the state but are improperly invested, and the ward is entitled to any benefit that may be derived by reason of such investment, if any benefit may be derived therefrom. If this tract of land so purchased by the guardian will bring more than the amount invested therein by the guardian, then the wards are entitled to whatever profit or increase there may be, and if not more than the interest computed under the statute then the guardian should be required to account for such interest.

The Circuit Court should have directed the guardian to dispose of these lands and restore the funds and report his acts and doings therein to that court; and when such funds are so restored and turned over to the succeeding guardian, to discharge petitioner from further liability on its bond. The judgment of the Circuit Court is reversed and the cause remanded with directions to the Circuit Court to proceed in accordance with the views herein expressed.

Reversed and remanded with directions.


author: Mr. Presiding Justice Philbrick

text:
    John Wilson, Appellee, v. Danville Collieries Coal Company, Appellant.
    1. Mines—duty toward timber man. It is the duty of a mine owner toward a timber man to comply with the statute requiring dangerous conditions in a mine to be marked and entries thereof kept in a book at the top of such mine.
    2. Instructions—when erroneous. Instructions directing a verdict which assume that the roof of a mine was dangerous are erroneous.
    Action for damages for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 15, 1912.
    Charles Troup, for appellant; Mastin & Sherlock, of counsel.
    Clark & Hutton, Keeslar & Gunn and J. Ed. Thomas, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought to recover damages alleged to have been occasioned to the plaintiff, who was in the employ of the defendant, by reason of its alleged wilful failure to comply with the statute regarding mines and miners. Plaintiff recovered a judgment for five thousand dollars, from which defendant prosecutes this appeal.

The declaration contained four counts designated as the first original count, first, second and third additional counts. The first count charges defendant with being the owner of the mine and being such owner it was the duty of defendant to permit no servant to be or remain in any part of the mine until all conditions therein had been made safe, except such person be working under the direction of the mine manager; that in the east main entry of said mine there was a large, loose and dangerous rock, the condition of which was known to the defendant, and that defendant wilfully violated the statute and permitted plaintiff to enter said mine and work therein without then and there being under the direction of the mine manager, and while so working in the performance of his duties he passed near said rock which suddenly fell upon him without warning, and greatly bruised, wounded and hurt the plaintiff.

The first additional count charges defendant with being the owner of the same mine, operated by means of a perpendicular shaft in which there were certain entries and cross entries, that on the 21st day of April, 1910, and prior thereto, plaintiff was employed by the defendant as a timber man, and that by virtue of the statute it was the duty of the defendant to employ a licensed mine examiner whose duty it was to visit the mine each day before men were permitted to enter, and inspect all places where men were expected to pass or work, and discover all dangerous conditions therein and place conspicuous marks upon all such dangerous places found, as notice to all men to keep away; that on said days defendant wilfully failed to comply with these provisions of said statute and did not on the night or morning prior to the time of permitting the plaintiff to enter, on April 21, have the mine examined by a licensed mine examiner, and that on said day in the roof, of the east main entry near Boom Four, there was a large, loose and dangerous rock which could have been discovered by the mine examiner had he exercised the reasonable care required by the statute, and that by reason of the wilful failure of the defendant to use such care and examine its mine and place upon said dangerous rock a conspicuous mark, plaintiff while passing said rock, was injured by the rock suddenly falling on him, whereby the plaintiff was greatly bruised, wounded and injured.

During the time of the trial or after the evidence was. closed, plaintiff dismissed the second additional count of his declaration.

The third additional count charg’es the defendant with being the owner of the same mine operated in the same manner, that on the 21st day of April and prior thereto, plaintiff was employed as a timber man, that his duty required him to work in the. entries of said mine; that it was the duty of the defendant to employ a licensed mine examiner to inspect all places where men were expected to pass or work, and observe and mark with a conspicuous mark all dangerous and- unsafe places; that it was the duty of the defendant to keep a book and record all dangerous and unsafe, places in said book, to be kept at the top of the mine, for the purpose of permitting its inspection by all persons interested therein, and to give any person required to go into said mine, upon inspection of said book, knowledge of the unsafe and dangerous conditions found therein by the mine examiner; that the defendant wilfully failed to comply with this provision of the statute and did not have its mine examiner make a daily record of the condition of the mine in a book kept for the purpose of giving persons interested the information they were entitled to receive therefrom. That in the east main entry near Room Four, there existed a large, loose and dangerous rock which could have been observed by the mine examiner had he examined the same, that defendant wilfully failed to make any record of such condition in said book as aforesaid, and then and there permitted plaintiff to enter the mine in question without such record having been made in such book, that by reason of the wilful failure of the defendant to make such daily record of the condition of said mine before plaintiff was permitted to enter, plaintiff was not apprised and did not know the dangerous condition thereof; that plaintiff was permitted to go into said main entry and perform his work without information of the dangerous condition of said rock, by reason whereof said rock fell upon, injured and bruised the plaintiff.

Defendant filed its plea of general issue to all of these counts.

Defendant insists on a reversal of this judgment and as cause therefor insists there is not sufficient proof to support any count of the declaration; that the trial court erred in the admission and rejection of evidence; and in the giving and refusing of instructions.

The record discloses that the defendant owned this mine, that about the middle of March, 1910, a strike occurred and work was stopped from the first day of April until the 18th of April, 1910, when the defendant desiring to begin operations in the mine, employed a number of persons for the purpose of making all unsafe and dangerous conditions safe and secure for the operation of the mine and the working of the miners therein. That plaintiff had been employed by the defendant for a considerable time prior to this as timber man and that on the 18th' of April he again entered the services of the defendant as a timber man, that he, together with one John Henry, was taken into the mine by the mine manager and shown and directed where to commence their work of timbering, and to continue on east from that place, which was at or near Boom One in the east main entry.

On the 19th or 20th, plaintiff, with John Henry set numerous props and timbers for the purpose of supporting the roof of this entry in places where such were needed.

There is some conflict in the evidence, but the greater weight of the evidence is that the mine manager entered this mine on the morning of the 21st, about twenty-five minutes before seven, and soon after that plaintiff entered the mine and was met in the east main entry by the mine manager where he was informed that a prop or timber had fallen on the previous night and he was directed, with John Henry, to replace it, they worked for about twenty minutes opposite or near Room Three in the east main entry replacing this timber. Plaintiff went to work in this mine under the directions which had been given him on the morning of the 19th or 20th, and he was continuing in the work which he was directed to do by the mine manager, and was working under the direction of the mine manager. (Kellyville Coal Company v. Bruzas, 223 Ill. 595.)

The timber which was down on that morning was a short distance east of the new timbering which had been put in the day before, in order to replace this timber or prop it was necessary to dig a hole in the floor of the entry where the prop was to be set. While plaintiff was- digging this hole, John Henry cut a timber of the proper length, the timber was then placed one end in the hole and over the other end John Henry placed the timber which he had cut. This timber and prop were then secured in position and made tight by driving wedges between the timber and the roof or cap. After this timber had been replaced, plaintiff then proceeded eastward in the entry toward the point where the next timbering was required to be done, and it was while standing near this place or going to it from the timber which had just been placed that the rock fell upon plaintiff and he was crushed and. very severely injured. The rock which fell was just east of the timber which had just been replaced, and extended a few inches east past the next timber which was held in place by the next prop. There were no markings made upon this rock on the night of April 20 or the morning of April 21 or none of recent date in that vicinity.

It is insisted by defendant that plaintiff was at all times in the mine by and under the direction of the mine manager, who was also a licensed mine examiner, no separate examiner having been employed. No record of the condition of this mine was made or entered in the book required to be kept at the top of the mine on the 20th or 21st days of April, and there was no means of plaintiff deriving any information from this book on either of those days. Although plaintiff was employed as a timber man and it was his duty to make all dangerous places safe, and although he was working at the time of the injury under the direction of the mine manager and was not permitted to enter the mine except under the direction of the mine manager, it was, nevertheless, the duty of the defendant to comply with the other provisions of the statute which required it to make an examination of the roof of this mine and to mark thereon by a conspicuous mark all dangerous and unsafe conditions and to make entry thereof in the book at the top of the mine for the purpose of giving plaintiff and others who were working in the mine, information concerning such conditions. Kellyville Coal Company v. Bruzas, supra; Smith v. Ill. Collieries Co., 155 Ill. App. 148.

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

Upon the contention that the court erred in giving to the jury the first instruction given on behalf of the plaintiff for the reason that it directs a verdict by informing the jury that if the plaintiff has proven the facts which by this instruction he is required to prove then the plaintiff has proven the third additional count of his declaration, and does not require that plaintiff should prove by a preponderance of the evidence that the rock which fell upon plaintiff was loose at the time when the defendant made an examination of the mine or should have examined it, or that by the use of due and proper diligence on the part of the mine examiner it might have been discovered at that time, and also that the instruction assumes that this rock was loose. That the second instruction is bad because it assumes that the place from which the rock fell was in a dangerous condition and that the instruction did not require the plaintiff to prove its dangerous condition, but if the facts set forth in this instruction were proven by the preponderance of the evidence it informed the jury that plaintiff had proven the . charge in the first additional count of the declaration. These instructions both, in effect, direct a verdict and they each assume the rock was loose and the place dangerous, material facts necessary to be proven by the plaintiff by a preponderance of the evidence before a recovery could be had. These instructions are similar to and in effect identical with the instructions given in the case of Belskis v. Dering Coal Company, 146 Ill. App. 124.

It is insisted also that the eleventh instruction as modified by the court is erroneous for the reason that it assumes that the rock was loose. What has been said with reference to the first instruction is equally applicable to the eleventh instruction, as modified and given.

For the giving of these instructions, the judgment must be reversed and the cause remanded.

Reversed and remanded.


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    Henry S. Miller, et al., Plaintiffs in Error, v. Rowland J. Beatty, et al., Defendants in Error.
    1, Husband and wife—profits due to increase of value of the premises, not subject to husband’s debts. Where a wife furnishes funds which her husband uses in purchasing real estate, the profits accumulated from subsequent sales and purchases due to the increase in the value of the premises are not subject to the husband’s debts.
    Error to the Circuit Court of Tazewell county; the Hon. T. N. Green, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Henry Mansfield and W. B. Cooney (Pro Se), for plaintiffs in error.
    J. O. Jones and William A. Potts, for defendant in error.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This bill was originally filed by Jerry Hiett and Harry S. Miller against Rowland J. Beatty and Eleanor F. Beatty, his wife, and Edwin F. Nichols, setting forth a judgment recovered by Jerry Hiett against Rowland J. Beatty and the assignment of the judgment of Hiett to Harry S. Miller.

After alleging no property in the name of Rowland J. Beatty out of which the judgment could be recovered and alleging the return of the execution nulla bona, the bill then alleged that Rowland J. Beatty is the owner of and entitled to certain real estate the title to which is held in the name of Eleanor F. Beatty,, his wife, alleging that the same is fraudulently held and is. the property of Rowland J. Beatty, and object of the bill is to subject that property to the payment of the judgment recovered by Hiett and assigned to Miller. Edwin F. Nichols is made a party defendant although the title to this property is held by Eleanor F. Beatty, the bill averring that he owns some interest therein.

Answers were filed denying the averments of the bill, and Rowland J. Beatty filed a plea setting forth adjudication of his estate in a bankruptcy court, this plea was permitted to stand by the chancellor so far as protecting Rowland J. Beatty against any personal judgment.

■ Thereafter W. B. Cooney, trustee in bankruptcy for Beatty, was substituted as complainant. An amended and supplemental bill was filed setting forth other liabilities of Rowland J. Beatty, with reiterations of the same charges as were contained in the original bill. To this answers were filed denying the allegations of this amended and supplemental bill.

The bill admits that Eleanor F. Beatty inherited money from her father’s estate, which it is alleged did not exceed three thousand dollars at any one time, and avers fraud and conspiracy on the part of all defendants to defeat payment of the indebtedness of Rowland J. Beatty.

The cause was referred to the Master in Chancery to take evidence and report his conclusions. The report of the Master finds that Eleanor F. Beatty received from her father’s estate about four thousand dollars in 1891, that thirty-five hundred of this amount was used in purchasing a farm in Logan County, that this farm was the individual property of Eleanor F. Beatty. That this farm was afterwards sold at a profit and the proceeds invested in a farm in Champaign County, that this farm was also the individual property of Mrs. Beatty; and that Rowland J. Beatty, as the agent of his wife, afterwards sold this property for her at a profit and that these transactions were all made in good faith and that the funds invested therein were the sole and individual property of Eleanor F. Beatty; that after the sale of this Champaign County farm the proceeds were again invested in lands, in Pike and Lee Counties, and that at the time of the commencement of this suit the lands in Pike and Lee Counties were in the name of Eleanor F. Beatty, but that Edwin F. Nichols owned an undivided one-half interest therein in his own right, that the lands were encumbered by a mortgage and the equitable interest of Eleanor F. Beatty therein amounted to about twenty-two thousand dollars. ■

The Master finds that one-half of the value of these lands, over and above the amount of the proceeds from the sale of the Champaign County land invested therein, is subject to the payment of the claims against Rowland J. Beatty and that the same should be subjected to the payment of this judgment. The Master finds that the amount received from the Champaign County land was sixty-two hundred and forty dollars, that this was the property of Eleanor J. Beatty, but this fund was afterwards invested by Rowland J. Beatty in the purchase and transfer of real estate in the name of his wife, and that the profits and increase in value of this real estate as produced from the same was, at the time of the investment in the land in Pike and Lee Counties, twenty-two thousand dollars, that the balance of the money for the purchase of these farms was furnished by Edwin F. Nichols. The Master reported that these investments were made in good faith and that no actual fraud on the part of Eleanor J. Beatty was committed or that there was any attempt to defeat the creditors of Rowland J. Beatty, but that by virtue of the ruling of the Supreme Court in Wilson v. Loomis, 55 Ill. 352, this property must be held liable to pay debts of Rowland J. Beatty, that while his personal opinion did not conform to the law as laid down in that ease, he was compelled to rule in accordance with the holding of the Supreme Court.

Objections were filed to the Master’s report by both complainants and defendants, and overruled by him, objections were refiled in the Circuit Court and ordered to stand as exceptions in that court; the exceptions of Eleanor F. Beatty were sustained, and complainants’ bill was dismissed for want of equity; from that decree appellees prosecute their appeal.

There is not much conflict in the evidence. The record discloses that Rowland J. Beatty had no funds or property to invest in any of these lands, the entire accumulation of this property resulted from the funds provided by Edwin F. Nichols and Eleanor F. Beatty and the increase in value of the lands in which the property was so invested, that every business venture that Rowland J. Beatty entered into, aside from the investing of his wife’s funds in real estate, were total financial failures, and that he was wholly insolvent.

The indebtedness for which these judgments were recovered accrued more than forty years ag’o, they have been kept alive, however, as against Rowland J. Beatty and seem to have been invested in by Miller, assignee, as a speculation on his part, with a final attempt to force their collection from the wife of Rowland J. Beatty because she was financially able to pay them. While the rule laid down in Wilson v. Loomis, supra, which governed the Master in his findings, justly holds that,, under the act of 1861, a married woman who engaged in general trading, with her husband as managing agent contributing his time, skill and labor to the management of the business, cannot enjoy the capital and proceeds derived from this business and keep the same free from payment of her husband’s debts, in the case at bar the evidence does not disclose that there was any skill or labor employed or used by Rowland J. Beatty in creating an increase in the funds which belonged to his wife, but the accumulation was due entirely to the increase in value of the real estate so purchased with her funds, and the rule laid down in Wilson v. Loomis has no application. The controversy here involved is determined in Alsdurf v. Williams, 196 Ill. 244, where it is held that where a wife furnishes funds with which to purchase real estate and profit is made therein and invested in other real estate and so continued, the accumulations and profits of the investment of such funds become her sole and separate property and are not liable for the payment of her husband’s debts.

The allegations of fraud and conspiracy in this bill are not supported by any evidence in the record and the chancellor correctly entered a decree sustaining the exceptions of Eleanor F. Beatty, finding the issues for her, and dismissing the bill for want of equity, at the cost of the trustee in bankruptcy, to be paid in due course; and the decree is affirmed.

Decree affirmed.


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    Nancy T. Hoxsey by John Hoxsey her next friend, Appellee, v. St. Louis & Springfield Railway Company, Appellant.
    1. Evidence—when prejudicial even though excluded. On the trial of a personal Injury suit it is prejudicial error to permit an eye specialist to testify as to certain tests used to ascertain the condition of the plaintiffs eyes where his conclusions are arrived at almost wholly from statements of the plaintiff, though such evidence is afterwards excluded.
    2. ' Evidence—when expert may testify as to cause of injury. It is competent for a physician to express his opinion in a personal injury suit as to whether or not the plaintiff’s eyes were injured by an electric shock, where the evidence as to such shock is uncontradicted.
    3. Electricity—pleading. Complaint in action for shock received from telephone wire in contact with trolley wire held to state cause of action.
    4. Evidence—preliminary proof. Admission of evidence on promise to supply necessary preliminary proof is prejudicial error when such evidence is not supplied.
    Action in case for personal injuries. Appeal from the Circuit Court of Macoupin county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed April 11, 1912.
    Rinaker & Rinaker and H. C. Dillon, for appellant; George W. Burton and George W. Black, of counsel.
    Edward C. Knotts, for appellee; Peebles & Peebles, of counsel.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

Nancy V. Hoxsey, by her next friend, sued defendant to recover for injuries alleged to have been received by coining in contact with a telephone wire which it is alleged by and through the negligence of the defendant came in contact with its trolley wire in the city of Girard, Illinois. Plaintiff recovered a judgment for eighteen hundred and fifty dollars, from which this appeal is prosecuted.

Defendant was the owner of and using and operating an electric line of interurban railroad through the city of Girard. The railroad was on First street in Girard, and passed by the property upon which plaintiff resided with her father. Telephone wires were strung upon a street which crossed First street, and were attached to poles of the defendant company on either side of its track on First street, they were hung about three feet above the trolley wire; after crossing First street, they extended along the property upon which plaintiff resided and angled across the rear of this property. The evidence of the plaintiff tends to show that on the day in question while a car operated by the defendant was passing- along this street, that at about the time it reached the point where telephone wires crossed the railroad the trolley pole came off from the trolley wire, struck the telephone wires, loosening or breaking one of them so that it fell upon the trolley wire, that it immediately became charged with a current of electricity, that plaintiff was upon the rear portion of the lot where her father resided, that at this place the wire sagged to a point within two or three feet of the ground, and came in contact with her arm and forehead whereby she received the injury complained of. .The suit was brought almost a year after the accident, defendant was not notified of the accident and had no knowledge thereof until the commencement of this suit. The servants of defendant who testified in this case, the motorman and conductor, testified that they recalled one time in going through the city of Girard when the trolley pole came off and that it struck the telephone wires, but on that day no wire came in contact with the trolley wire, and they had no knowledge of any one being-injured, and they are unable to. ascertain or know whether that is the day on which this accident is alleged to have occurred or not.

The accident is alleged to have happened on the 18th day of October, 1908, this action was commenced to the September term, 1909. At that time the declaration consisted of but one count, now designated as the original count; in September, 1910, three additional counts were filed.

John Hoxsey, father of plaintiff, claims to have been injured by the same wire while attempting to rescue plaintiff. He brought an action against the defendant and recovered a judgment, from which defendant prosecuted an appeal to this court. The declaration in that case consisted of but one count, the material averments of which are set forth in the opinion in Hoxsey v. St. L. & S. R. R. Co. filed April, 1912 (post, p. 109).

The declaration in that case is identical with the original count in this action, the three additional counts in the case at bar were filed for the purpose of supplying averments not made in the original count.

The first additional count charges the ownership and operation of the electric railroad by the defendant, the use of certain poles and a trolley wire hanging therefrom which carried a highly dangerous and deadly current of electricity for the purpose of propelling its cars; that defendant knew, or by the exercise of due care should have known, that divers telephone wires were attached to defendant’s poles above the trolley wire and which were liable to be struck and broken by the trolley pole by means of which the current from said trolley wire was conducted to the machinery operating defendant’s cars, and by reason of which the telephone wires were liable to fall and come in contact with the trolley wire and thereby transmit the dangerous current; and that while on said October 18th one of the cars of defendant was approaching and passing under said telephone wires, the servants of defendant negligently permitted the trolley pole to 'be and remain off from the trolley wire in consequence of which it did strike and cause certain of the telephone wires to fall upon the trolley wire and become charged with the said dangerous voltage of electricity, and that the plaintiff, while exercising due care and caution, came in contact therewith.

The second additional count, after making similar averments as contained in the first additional count, alleges that defendant did not provide or erect any trolley guard or device or means of preventing the telephone wires from falling* upon the trolley wire, and that while one of defendant’s cars was passing along its right of way on said 18th of October, 1909, the trolley pole came off from the trolley wire and struck said telephone wires and caused them to fall upon the trolley wire, whereby they became charged with said electric current, by means whereof the same was transmitted by said telephone wire, and plaintiff, while in the exercise of due caution, came in. contact therewith and was injured.

The third additional count, after the usual allegations of the owning and operation of the railroad and the existence of the telephone and trolley wires, al~ leges that defendant knew, or by the exercise of due caution should have known the telephone wires were there and were liable to become detached ór broken and fall upon said trolley wire and thereupon become charged with said dangerous voltage, and that defendant did not use due care and caution to prevent said telephone wires from falling against and upon said trolley wire, but permitted the trolley wire to be and remain under and near said telephone wire without any guard or device to hold or keep the same from falling upon said 'trolley wire, and that said telephone wires did become detached on said day and fell upon and against said trolley wire whereby and by means whereof plaintiff was injured, etc., by reason of coming in contact with said telephone wire.

Defendant insists that the original count does not sustain a cause of action and will not support a judgment. What we have said in the case of John C. Hoxsey against this defendant, in the opinion filed as stated above, is decisive of the sufficiency of that count, and it is unnecessary here to further discuss it.

Appellant also insists that the first, second ahd third additional counts do not state a cause of action. No demurrer was interposed .to the declaration or either count and we are satisfied the additional counts state a cause of action and are sufficient after verdict.

As a further cause of reversal, the defendant insists that the court erred in the admission and rejection of evidence, that the court admitted improper evidence over objections of the defendant which was afterwards excluded from the jury, but that its exclusion by the court did not cure the error of its admission; that the court erred in the giving and refusing of instructions; and that the damages are excessive.

Hpon the contention that the court erred in the admission and rejection of evidence prejudicial to the defendant over its objections we find from an examination of this record that almost the entire evidence upon which to base the amount of the verdict was given by one Dr. West, a specialist on the eye, ear and throat, from Decatur, Illinois, and consulted long after suit was begun. The court permitted this doctor to testify regarding certain tests which he used for the purpose of ascertaining the condition of plaintiff’s eyes—objection was made to this testimony on the ground that the doctor’s evidence was derived from objective instead of subjective symptoms, and that the conclusions he arrived at therefrom were almost wholly dependent upon statements made by plaintiff in these tests.

The court permitted the doctor to testify fully in regard to these tests and to testify as to the results found from four tests known as (1) the Snellen’s test, (2) the ophthalmoscope test, (3) the perimeter tests and (4) the shadow test. After the doctor had testified to the results of these tests the court excluded all of his evidence relative to all except the shadow test. At that time the jury had all the effect of the doctor’s testimony and it afterwards having been held improper and excluded this court cannot say that the impressions made by this testimony upon the minds of the jury could be eradicated from their minds by the court instructing the jury not to consider it, this evidence was highly prejudicial to defendant and to whatever extent the jury might have been influenced by it the damage had been done. It is evident from the record the doctor was consulted for the purpose of testifying in this case. The court also permitted the doctor to answer certain hypothetical questions which included the supposition that prior to the time of .this injury the plaintiff’s eyes were in a normal condition. Objection was made to these questions for the reason that plaintiff’s eyes had not been shown to have been in a normal condition, but on a promise that this evidence would be supplied, the objection was overruled. No attempt was ever made to supply this evidence, and it was only through the promise to furnish it that the court permitted the doctor to answer; although the court afterwards excluded this evidence plaintiff got all of its effect to the jury.

It would have been better practice to have required this proof prior to permitting the doctor to answer these questions; had the court sustained the objection until such proof was made, no damage could have been done. It is also insisted the court erred in permitting the doctor to testify, over objection, that plaintiff’s eyes were damaged by reason of an electric shock; the Supreme Court held, in I. C. R. R. v. Smith, 208 Ill. 608, that where the evidence is conflicting as to the manner in which an injury is inflicted, it is not competent for a physician to express his opinion as to the manner or method by which the injury occurred, but in City of Chicago v. Didier, 227 Ill. 571, and Chicago Traction Company v. Eoberts, 229 Ill. 481, it holds, where there is no conflict in the evidence as to the manner of receiving the injury, or the means by which the injury is inflicted, then it is competent for the physician to testify whether in his opinion the damage which he finds was caused by reason of the injury received, and the distinction drawn between these cases is clearly defined. The evidence that plaintiff received an electric shock is not contradicted and we do not think the court erred in permitting the doctor to express his opinion that plaintiff’s eyes were damaged by the electric shock, this opinion was not conclusive on this question but was proper to be considered by the jury.

Defendant further urges that the court erred in giving an instruction on behalf of plaintiff known and designated as Instruction Number One. This instruction is in substance, the same as the one given in the case of John Hoxsey, supra, and as applied to the original connt of the declaration what has there been said is applicable here. The instruction permitted plaintiff to recover upon proof of the allegations of that count which does not state a cause of action, and which is insufficient to support a judgment even after verdict; for this reason the giving of this instruction was error.

It is unnecessary to discuss the other questions raised, owing to the fact that another trial must be had.

For the reasons above indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.


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    Felt Haynes, Appellee, v. Century Coal Company, Appellant.
    1. Mines—duty to instruct in regard to use of sprags. Where a driver in a mine knows how to operate the cars and how to use sprags in checking their speed upon a grade, there is no duty on the part of the mine manager to instruct him in regard thereto.
    2. Mines-—duty to instruct with regard to grades. Where a person in charge of cars in a mine is familiar with grades, there is no duty on the part of the mine manager to instruct with regard thereto where the grade in question was not unusual.
    3. Mines—evidence. In a suit by a miner for personal injuries, a verdict based on conflicting evidence as to the sufficiency of places of refuge in the entry will not be disturbed unless clearly and manifestly against the weight of the evidence.
    4. Mines—questions for jury. Where a count in an action by a miner charges negligence because of the insufficiency of places of refuge in the entry and because of a steep grade causing cars to run at a dangerous rate of speed, and that these conditions together were the proximate cause of injury, the questions as to such negligence and as to what was the proximate cause of the injury are properly submitted to the jury.
    5. Appeal and ebbob—waiver. Defendant cannot raise the question of the absence of evidence to establish negligence complained of, where hy an Instruction he has submitted the question to the jury on the evidence.
    Action in case for personal injuries. Appeal from the Circuit Court of Shelby county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed April 11, 1912.
    W. B. McBride, for appellant; Mastin & Sherlock and E. A. Richardson, of counsel.
    Hogan & Wallace, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought "by plaintiff against defendant to recover for injury received in defendant’s mine at Tower Hill, Shelby county, which injury plaintiff alleges was occasioned by reason of the wilful neglect of defendant to comply with the statute on mines and mining.

Trial resulted in a verdict and judgment against defendant for seven hundred dollars.

The declaration originally consisted of five counts, the first two charging common law negligence were withdrawn before the cause was submitted to the jury. The third, fourth and fifth counts charged wilful neglect. The third count alleges the possession and operation of a mine at Tower Hill by defendant, that plaintiff was in its employ as a mule driver, that under section 16 of the Miner’s Act, defendant was required to instruct plaintiff with reference to his duties as a mule driver, but wilfully failed to perform that duty; and directed plaintiff to haul cars along the second right entry off from the.east main entry, which entry was constructed with a steep down grade, so that loaded cars acquired a dangerous rate of speed, that appellee proceeded with this work without having been given any instructions as to the grade and without having been instructed on the method or manner of checking the speed of the cars, and by reason thereof the cars which he was hauling acquired such a dangerous rate of speed that when they reached the turn connecting the second right entry with the east main entry plaintiff was thrown from the car and severely injured.

The fourth count charges that the defendant did not have rooms driven at regular intervals of not exceeding twenty yards along the second right entry off from the east main entry, that there was not a space of two and one-half feet between the cars and the rib, and that under section 21 (D) of the Miner’s Act, in force at the time, 1907, it became and was the duty of the defendant. to cut out places of refuge in the walls of said entry, at least two and one-half feet deep, four feet wide and five feet high, at not to exceed twenty yards apart, and that defendant failed to perform this duty, and that such failure was a wilful violation of the statute, that the plaintiff in performanee of his duties hauled cars in said entry in which 'there was a pronounced grade which permitted the cars to acquire a dangerous rate of speed and that by reason thereof the car which plaintiff was then hauling in said entry acquired a dangerous rate of speed, and that by reason of the failure to provide places of refuge along said entry plaintiff was unable to escape from the car which he was driving in his regular employment, and that by reason thereof at the turn where the said entry joins the main east entry he was thrown from the car and severely injured.

The fifth count charges the operation of a coal mine and the employment of plaintiff and that it became plaintiff’s duty to pass along the second right entry off from the east main entry, which said second right entry was used for hauling coal cars on tracks lain therein, that it became the duty of the mine manager to instruct employes in their respective duties, that it was the further duty of the mine manager to visit and inspect the various working places, and that he was required to be in charge of the general direction of the underground work; it was his duty to see that the conditions therein where plaintiff was required to pass while in such employment were reasonably safe for plaintiff to perform his duty, that it was the mine manager’s duty to see that the track was laid in proper condition, that the cars were of the proper construction and repair, yet, notwithstanding its duties, defendant wilfully failed to perform the same and to make the conditions along said entry reasonably safe, but suffered a dangerous grade to exist, suffered the cars to be improperly constructed without any reasonably safe device for stopping them, permitted the entry to be without sufficient places of refuge as required by the statute, that by reason thereof plaintiff in the performance of his work driving mules hitched to a train of cars upon the grade acquired a dangerous speed and the cars not being adjusted and equipped for stopping, when they reached the turn from the second right entry on the east main entry plaintiff was thrown from his car and injured.

The evidence discloses that at the time plaintiff was injured he had been for a number of years engaged in the occupation of mining coal, that he had performed all of the duties in the mine, driving mules, mining coal and laying track and was familiar with all other duties of a miner, that he was a man of common understanding and not ignorant of the conditions which surrounded him, that he did make several trips in. this entry and over this grade upon the day in question, prior to the accident, that he knew there was a grade on this track in this entry, that he knew that cars going down this grade obtained considerable momentum and speed, that he knew also that the usual and customary method, not only in this mine but in other mines in the State of Illinois, for stopping or checldng the speed of cars, was by the use of sprags; that he was provided with sprags for this purpose.

The record further discloses defendant did make examination of the mines as required by the statute; the mine contained two veins of coal, one about five feet thick, one lying above the other, that the track was originally laid by ties sunk in the ground and the track laid upon the level of the mine, that after one of these veins was exhausted the track was raised for the purpose of mining the other vein; that this was the customary and usual method of conducting such work, and by reason of this elevation of the track the grade was made which caused the momentum of these cars.

In regard to the duty of the mine manager to instruct plaintiff in regard to use of sprags in the checking of speed upon the cars when used upon this grade, plaintiff knew of the use of sprags and knew how to operate the cars and check this speed by their use, and it was unnecessary for defendant to instruct him in this regard. As to the charge that the grade was • not in proper condition, the evidence discloses that it was the usual grade for this character of mine, that the cars were constructed in the same manner as those ordinarily used in mines, and plaintiff was familiar with their construction and use; any instruction that might have been given by defendant would have given plaintiff no information he did not already possess.

This cause was originally heard in this court at the May term, 1910; opinion was filed October 14, 1911, and this court there held there was not sufficient evidence to sustain a recovery under the third and fifth counts of the declaration, but that the evidence in the record was sufficient to warrant a verdict and judgment upon the fourth count of the declaration, which charges that in the second right entry off from the east main entry where plaintiff was required to do his work, and which was used for the purpose of hauling coal with a mule, rooms were not driven at regular intervals as required by the statute, that there was not a space of two and one-half feet between the cars and the rib, and that defendant did not cnt places of refuge in said wall of said entry at least two and one-half feet deep, four feet wide and five feet high, not less than twenty yards apart, as required by the statute, and defendant violated the statute regarding these requirements wilfully. The evidence discloses that rooms had been cut upon one side of the entry but that as soon as these rooms ceased to be worked the entrance to these rooms was closed by bricking up the opening, and that when this was done no places were cut in the wall of the entry and no place of refuge left where employes might go to escape the passage of the cars; on the other side of the entry there had been no rooms or places of refuge cut. There is also evidence tending to show that this second right entry was so narrow that at certain portions thereof the cars struck the rib, at other places the distance between the rib and the car did not exceed one foot, that the entry was so narrow that plaintiff could not have dismounted from the car while the same was going at a high rate of speed, and if he had dismounted there was no place wherein he might have taken refuge.

In the petition for rehearing it is strenuously insisted by appellant that the holding of the court in this respect was erroneous, and that there is no evidence upon which to sustain a judgment upon the fourth count, and in support of this contention singles out portions of the record wherein the evidence of its witnesses was contrary to and conflicting with that of the plaintiff’s witnesses, that upon cross examination of plaintiff’s witnesses some of them made statements which it is contended were inconsistent with the statements made upon direct examination, and that this court should adopt the statements made upon cross examination and find in accordance therewith.

The evidence in this record is conflicting upon the question as to whether or not places of refuge were cut in the walls of the second right entry; if the jury believed the evidence of the plaintiff, then the verdict is warranted; if the evidence of defendant’s witnesses is true, then the judgment is not warranted by the evir deuce. Where evidence is conflicting, as in this record, it is not the province of this court to disturb the verdict unless it is clearly and manifestly contrary to the evidence. Although, as an original proposition, this court might not be inclined to have decided the case in accordance with the verdict of the jury yet we are not satisfied that the verdict is so clearly and manifestly against the evidence as to warrant its reversal for that reason.

The fourth count not only charges failure to. construct places of refuge along the side of the entry but also that the entry was narrow, that the grade therein was so steep as to cause the cars to run at a high and dangerous rate, and the count charges that these together constituted the negligence complained of in this count, and that these combined conditions were the proximate cause of the injury. We think the question as to what was the proximate cause of the injury and whether the defendant was negligent as alleged in this count was properly submitted to the jury, and they having determined this question against the contention of appellant, we do not feel justified in disturbing their verdict.

Appellant insists that there is no evidence in this record tending to show any negligence as complained of against it, yet by its instruction No. 10, which was given as follows:

“The court further instructs the jury that even though you may believe from the evidence that places of refuge of the depth of two and one-half feet, of the width of four feet and of the height of five feet or more were not made as explained in these instructions, still if you further believe from the evidence that the want of such places was not the proximate cause of the injury, then in law the plaintiff could not recover, and as to the charge of failing to furnish places of refuge you will find the defendant not guilty.”

It submitted this question to the jury upon the evidence, and it cannot now say that there was no evidence upon that question.

We find no error in the record upon the question of the admission and rejection of evidence by the trial court, or any prejudicial errors in the giving or refusing of instructions; while there are some inaccuracies in both admission of evidence and the giving of instructions, they are not such as would be prejudicial to the defendant or such as would require a reversal of this judgment.

The judgment is affirmed.


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    Delia O’Connor Griffith, Appellee, v. Samantha J. Prather, et al., Appellants.
    1. Partition—solicitor’s fees. Solicitor’s fees should not be taxed as costs in a partition proceeding where the rights of the complainants and defendants are not properly set forth in the bill of complaint and when the complainant had joined herself as administrator of her husband’s estate claiming a right to have the entire premises sold, thus necessitating the hiring of counsel by the defendants to protect their interests, and where it further appears that the proceedings were not amicable.
    Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the October term, 1911,
    Reversed and remanded with directions.
    Opinion filed April 11, 1912.
    Hamilton & Catron, for appellants.
    Timothy McGrath, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

James L. Griffith died January 28,1890, leaving surviving him six children. Through conveyances made by several of his children and by reason of the death of others, complainant and defendants became the owners of all of his real estate. Complainant, in her own right and as administrator of the estate of Clifton J. Griffith, her deceased husband, filed this bill for partition of the estate. Her husband owned an undivided interest in the real estate of his father, and having died intestate, without lineal descendants, complainant inherited one-half of his interest in James L. Griffith’s estate with dower in the other half of his interest in that estate. Under a decree for partition the land was divided. On complainant’s motion, the court afterwards ordered a solicitor’s fee of one thousand dollars taxed as costs, to he paid with the other costs by the parties interested, in proportion to their interest in the estate.

No question is raised by this appeal as to the rights or interests of the parties as found by the partition decree and no appeal was taken therefrom; this appeal is only from the decree directing a solicitor’s fee to be taxed as costs and ordering it he paid by the parties, in proportion to their interests.

James L. Griffith died seized of lands in Sangamon County and with an interest in contracts for the purchase of real estate in Washington. Clifton J. Griffith, the husband of complainant, died January 26, 1910, without leaving sufficient personal estate to pay his indebtedness.

Complainant’s hill was filed both for the purpose of a partition of the estate of James L. Griffith and to obtain sufficient funds with which to pay the indebtedness against her husband’s estate.

Among the conveyances made by and between the heirs of James L. Griffith was one of date July 18, 1896, made by Fannie Griffith Hunter to Clifton J. Griffith, Lillie Griffith Fawcett and Josephine B. Griffith, this deed was in form a warranty deed, and while purporting to convey all interest of Fannie Griffith .Hunter at that time in the estate of James L. Griffith, was given to secure a debt owing by Fannie Griffith Hunter to the grantees.

This indebtedness was afterwards paid, and thereupon Fannie Griffith Hunter was entitled to a release of this conveyance. Prior to the time of the filing of this bill, complainant’s solicitor was advised of the circumstances, conditions and purpose of this conveyance, that it was intended as a mortgage, and that the indebtedness had been paid and that deeds had been made by Lillie Griffith Fawcett and Clifton J. Griffith attempting to release the indebtedness and reinvest Fannie Griffith Hunter with the interest she had so conveyed, Josephine B. Griffith having died intestate, but that an error had been made in these deeds and they did not reinvest her with her proper interest in the estate. Complainant’s solicitor, although informed of these circumstances, did not mention them in the bill or seek a proper adjustment thereof.

The bill set forth that complainant, Delia O’Connor Griffith, was the owner of and entitled to receive as her share in the estate one hundred thirty-three seven hundred twentieths (133/720) in fee, and a dower interest in one hundred thirty-three seven hundred twentieths (133/720); that Fannie Griffith Hunter was seized in fee of fifty-nine one hundred ninety-seconds (59/192), of which one hundred thirty-two seven hundred fifty-seconds (132/752) was subject to the dower interest of complainant.

The decree does not find the interests of the parties as set forth in the bill, but finds that complainant, instead of having dower in one hundred thirty-three seven hundred twentieths (133/720) is entitled to dower in one hundred thirty-three three hundred sixtieths (133/360); and that instead of one hundred thirty-two seven hundred fifty-seconds (132/752) of the interest of Fannie G. Hunter being subject to dower interest of complainant only one hundred thirty-three twenty-eight hundred eightieths (133/2880) is subject to her dower. The court also found the deed from Fannie Griffith Hunter to Clifton J. Griffith and others to have been a mortgage and held the conveyances from Lillie Griffith Fawcett and Clifton J. Griffith to be but releases of this mortgage, and that Fannie Griffith Hunter should be reinvested with her interest in the estate the same as though the deed from her and the conveyances back had not been made.

Complainant began this partition proceeding and joined herself as administrator of her husband’s estate as party complainant upon the theory that it was necessary that the property belonging to the estate of James L. Griffith in which the defendant held undivided interests should be sold in order to make a final settlement of her husband’s estate, and her solicitor so informed defendants in conversations had with them. Defendants did not desire to have their interests in the estate sold, but desired to keep the same in kind, and so informed complainant’s solicitor, and for the purpose of protecting their interest therein and preventing a sale of their interests they employed counsel at their own expense and filed their answers setting forth the facts, and complainant thereafter amended her bill.

An examination of the record discloses that throughout the entire proceeding, complainant’s counsel represented her alone, and that he not only did not properly set out their rights in the bill but that he was at all times actively engaged in furthering complainant’s interests regardless of the rights and desires of the defendants.

It was the intention of complainant to secure a sale of the premises in the partition proceeding, and it was only through the advice of their counsel that defendants were informed that they could prevent a sale of their interests in the premises and have their interests set off to them jointly, and after ascertaining that this could be done, a written agreement was entered into by them requesting that their interest be not divided but be set off to them jointly; and their request was granted in the decree.

After the decree of partition had been entered, on motion of complainant’s solicitor, the cause was referred to the Master in Chancery for the purpose of taking evidence concerning* the question of a solicitor’s fee; the Master reported to the court that complainant was entitled to a solicitor’s fee and found that one thousand dollars would be a reasonable fee for the services performed. Objections were filed to this finding of the Master and urged in the court as exceptions to his report. They were overruled and complainant’s solicitor’s fee fixed at one thousand dollars. The Master also found that the rights and interests of the complainant and defendants were properly set forth in the bill of complaint; this finding is contrary to the decree of partition rendered by the Chancellor, and the exceptions to this finding should have been sustained.

While the Supreme Court hold in Stollard v. Nycum, 240 Ill. 472, that where the rights and interests of the parties are properly set forth in the bill of complaint, and defendants are not required or compelled to employ counsel and file an answer to protect their interests, and the proceedings are amicable, so that the rights of all parties will be taken care of without the employment of counsel to protect their interests, complainant is entitled to have a solicitor’s fee fixed to be taxed as costs to be paid by the parties in proportion to their interests in the estate, it has also held in McMullen v. Reynolds, 209 Ill. 504, that where the proceedings are not amicable, the igiits of the parties not properly set forth in the bill o* complaint and defendants are required to employ counsel to protect their rights and present a substantial defense, then the court should not allow a solicitor’s fee to be taxed as costs.

Upon examination of this record, we are forced to the conclusion that the attitude of complainant and her counsel has been, from the inception of this cause, hostile to the interests and rights of the defendants in these premises, and that had defendants not employed counsel to represent them, that their interests would not have been protected; and under such conditions it is error for the court to decree that a solicitor’s fee be taxed as costs.

This cause was argued orally in this court, and the attitude taken by complainant’s counsel here and his remarks and references concerning opposing counsel were not such as to impress this court with the idea that he was acting fairly and impartially and for the interests of all parties in this proceeding.

For the reasons (1) that the rights of complainant and defendants were not properly set forth in the bill of complaint, (2) that the attitude of complainant and her solicitor have been hostile to the rights and interests of the defendants to such an extent that they were required to employ counsel to defend their rights and did present a substantial defense to this bill, and (3) the fact that the proceedings have not been amicable, we are of the opinion that no solicitor’s fee should have been taxed as costs in this proceeding, and that the Chancellor erred in ordering such fee to be taxed, and directing defendants should contribute to its payment.

The decree ordering and directing that a solicitor’s fee be taxed as costs is reversed and the cause remanded with directions to the Chancellor to deny complainant’s motion to tax a solicitor’s fee as part of the costs.

Reversed and remanded with directions.


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    H. Sallee, Plaintiff in Error, v. Charles Werner and Fred W. Long, Defendants in Error.
    1. Payment—recovery back. A. person entering into a recognizance for the appearance of certain defendants may recover hack money paid by him to a sheriff for the return of such defendants from another state where such sheriff returned the defendants by virtue of a requisition obtained from the governor and received the compensation therefor allowed by law, it appearing that the whole transaction was a fraudulent scheme to procure double compensation.
    2. Bail—arrest by surety. A person entering into a recognizance for the appearance of certain defendants has power to arrest and return such parties wherever they may be found even though they be in another state.
    3. Bail—arrest in foreign state. Where a sheriff has a certified copy of a recognizance for the appearance of certain defendants, no requisition is necessary for the arrest and return of such defendants who have gone to another state.
    4. Bail—authority to arrest. A person who has entered into a recognizance for the appearance of certain defendants may authorize any person to arrest and return such defendants who have gone to another state on furnishing a certified copy of such recognizance together with the authority to act in that capacity.
    Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed April 11, 1912.
    S. H. Cummins, for plaintiff in error.
    A. M. Fitzgerald, for defendant in error; Gillespie & Fitzgerald, of counsel.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

Plaintiff in error brings this action against Charles Werner, sheriff of Sangamon County, and one Fred W. Long, his deputy, to recover money which it is claimed the sheriff has illegal’ v collected, as such sheriff, from the plaintiff. The c "laration consists of the common counts, to which defendants filed pleas of general issue and of tender. At the close of plaintiff’s evidence, on its own motion, the court instructed the jury to find the issues for the plaintiff and assess his damages at thirty dollars and eighty cents, the amount of the tender, and rendered judgment on this verdict, from which plaintiff prosecutes this writ of error.

The only evidence heard by the court was that of the plaintiff, and it must be taken as true with all the inferences and intendments that may properly be drawn therefrom.

The evidence discloses that plaintiff entered into recognizance in the Circuit Court of Sangamon County for the appearance of two defendants, E. C. Greiss and W. H. Holford, who had been indicted for burglary and larceny. After these parties had been released on this recognizance and before their case had been set for trial, they entered into an arrangement with their attorney, Bierman, with the consent of plaintiff, whereby they were permitted to go to Flora, Illinois, fqr the purpose of securing employment, with the promise that they were to return to Sangamon County for trial when requested by their attorney. After the parties had gone to Flora, the defendant Fred W. Long went to the plaintiff and informed him that the sheriff had sent him and requested plaintiff to call on the sheriff. In this conversation it developed that the sheriff had ascertained that plaintiff had entered into recognizance for the appearance of these two men, and Long then informed plaintiff that he had inside information, the source of which he would not disclose, that Greiss and Holford had gone to Huntington, Indiana; that they were intending to go to the State of Texas, and informed plaintiff that if they went to the State of Texas he would lose the one thousand dollars for which he had entered into recognizance for their appearance. Long also informed plaintiff that Huntington was eight hundred miles from Springfield, that the necessary expense for returning these parties to Sangamon County and placing them in jail would be one hundred and fifty dollars, that if plaintiff would furnish the sheriff with this amount he would send to Huntington and bring back the men and save plaintiff any further loss by reason of his having become security for Geiss and Holford. Plaintiff replied that he did not think the parties were intending to go away, he had confidence in them, and did not care to expend one hundred and fifty dollars to bring them back, that he did not have the money for that purpose, that the case against the parties had not yet been set for trial and he believed when it was they would return, and declined to furnish the one hundred and fifty dollars. Long informed plaintiff that if the money was not furnished he would see that the case was set down for trial. Defendant Long and plaintiff had a subsequent conversation in which Long repeated, in substance, his conversation previously had. Plaintiff finally yielded and furnished the sheriff of Sangamon County, through Long, with one hundred and fifty dollars for the purpose of paying the expense of returning these parties to Springfield. After securing one hundred and fifty dollars from the plaintiff, defendants without the knowledge of plaintiff secured from the governor of Illinois a requisition upon the governor of Indiana, requesting the return of these parties as fugitives from justice.

Paragraphs 305-308, Ch. 38, Hurd’s Revised Statutes, 1909, provided how and in what manner persons who are under bonds for their appearance in court may be apprehended in this state and surrendered to the proper authorities, but until the parties entering into such security had forfeited their recognizance they were entitled to retain their liberty, unless sooner surrendered by their principal.

Sections 9, 10 and 11, Ch. 60, Hurd’s Revised Statutes, 1909, provided the method and manner by which fugitives from, justice may be returned from another state.

Q-ciss and Holford, having secured plaintiff to enter into recognizance for their appearance in the Sangamon County Court, thereby placed themselves in his custody and by this act gave him authority to seize or arrest them at any time thereafter and return them to the authorities of Sangamon County, and all that was necessary to authorize them to so return these parties, whether they were in the State of Indiana or elsewhere, was a certified copy of the recognizance, or plaintiff could furnish to any agent he might select such copy of this recognizance, together with authority ■to act for him and thus secure the return of these parties to the authorities of Sangamon County. No requisition or other papers were necessary therefor. Taylor v. Taintor, 16 Wallace 366; 3 Am. & Eng. Enc. Law 708.

So far as this record discloses, however, defendants did not proceed to Indiana with a copy of this recognizance and written authority from the plaintiff authorizing them to return these parties, but instead thereof secured from the governor of Illinois a requisition on the governor of Indiana requesting the authority to return these parties to Sangamon County as fugitives from justice, and it was under and by virtue of this requisition that these parties were so returned, and after having returned them defendants presented a claim to the State of Illinois for such services, and collected the statutory fees and expenses therefor. When plaintiff ascertained that the sheriff had been paid by the state for this service, he demanded the return of his one hundred and fifty dollars. Replying to this demand, the sheriff informed him he did not know whether the state had paid for this Service or not, that he would investigate, and if it had he would return plaintiff’s money, that this was not the first instance of the kind with which Long had been connected.

If the defendants acted as officers of the law or as agent of the State of Illinois, under and by virtue of the authority of the requisition obtained from the governor of the State of Illinois in the return of these parties to Sangamon County, they were entitled to receive the compensation allowed by law therefor, and having collected that compensation from the State of Illinois they are estopped to deny that they acted in that capacity and having received the compensation allowed by law for such service, they will not be permitted to collect extra compensation therefor from private parties. Hogan v. Stophlet, 179 Ill. 150.

We are compelled, from this record, to arrive at the conclusion that the defendants entered into an unlawful and fraudulent scheme to secure from the plaintiff one hundred and fifty dollars paid to them by him, and that the payment was not made voluntarily by plaintiff but was paid to defendants as a fee colore ojfici, and that plaintiff is entitled to recover the money so paid to defendants.

The defense was made in the court below and the court directed a verdict on the theory that defendants acted as. officers of the law and were entitled to the fees allowed by statute, and that plaintiff in error was liable therefor, but in this court the defense is shifted to the theory that defendants were acting as the agent of plaintiff in error, but, on this record, the judgment cannot be sustained on either theory.

The trial court erred in directing a judgment against the defendants for thirty dollars and eighty cents, and the judgment of that court is reversed and the cause remanded.

Reversed and remanded.