text:
    City of Moline, Appellant, v. Barber Asphalt Paving Company and National Surety Company, Appellees.
    Gen. No. 6,391.
    1. Municipal corporations, § 400

      -—When declaration in action on contractor’s bond is sufficient. A declaration setting up a certain city ordinance for the paving of a street, a contract with the principal defendant for the work, and the specifications, breaches in failure to construct the paving and keep it in repair for 10 years in accordance with the contract, and the contractor’s bond in hcea verba, held good on demurrer, in an action on the contractor’s bond.
    2. Pleading, § 463*—when question whether declaration is bad is waived. The question whether a declaration is bad is waived where defendant files a plea to the merits after overruling of his demurrer to the declaration and does not move in arrest of judgment.
    3. Pleading, § 453*—when error in sustaining demurrer to pleas 'is waived. Error in sustaining a demurrer to pleas is waived by pleading over by other pleas the same matter in substance.
    4. Municipal corporations, § 400*—vShen action lies on construction bond. Where two bonds were given by a paving contractor to a city, one covering construction and the other covering both construction and maintenance of the improvement, held on demurrer to a plea that plaintiff should sue only on the latter bond, that the latter bond in no way impaired the covenant expressed in the former and that suit might he maintained on the former bond for the breach of any of its terms.
    5. Appeal and error, § 1455*—when improper sustaining of demurrer to plea is harmless error. The improper sustaining of a demurrer to a plea was not prejudicial error, where a plea over upon which the case was tried tendered the same issue.
    6. Bonds, § 41*—when judgment is erroneous. Judgment in an action to recover on a bond for damages, only, held bad in form and substance, and reversibly erroneous.
    7. Appeal and error, § 1807*—when case should be sent back for entry of proper judgment. If no error occurred before entry of a judgment which is bad in form and substance, the case should be sent back, not for new trial but for entry of proper judgment.
    8. Appeal and error, § 1410*—when verdict not disturbed as against weight of evidence. Evidence as to damages for breach of a paving contract held such as not to justify the holding that the amount found by the jury and confirmed by the court was not in accordance with the weight of evidence on the questions involved, where there were a large number of material questions resting on conflicting opinions and estimates from which no two juries would be likely to reach the same verdict.
    9. Municipal corporations, § 400

      —when evidence of repairs and improvements by city are admissible in action on contractor’s bond. Evidence of repairs and improvements were properly admitted and considered in estimating plaintiff’s damages, in an action by a city to recover on a paving contractor’s bond, where there was an issue whether' the contractor had kept the pavement in repair in accordance with the contract and whether a settlement had been agreed upon and repairs made under its terms and instructions given as to repairs by both parties.
    10. Appeal and error, § 1526*—when plaintiff is not harmed by improper rulings or instructions. Plaintiff is not harmed by improper rulings or instructions on an issue found for him.
    11. Appeal and err&r, § 1543*—when instruction on credibility of witnesses is not reversibly erroneous. An instruction that the jury is not obliged to accept as true the testimony of any witness merely because he has testified positively to a fact or state of facts if, in their opinion, judging from their own common observation, he is or may he mistaken concerning the matters and things about which he has testified, and that they have the right to believe all the testimony of a witness or to believe it in part and disbelieve it in part or reject it altogether as they may find the evidence to he when considered as a whole, held not prejudicially erroneous.
    Appeal from the Circuit Court of Rock Island county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded with directions.
    Opinion filed February 12, 1918.
    James M. Johnston and Shallberg & Harper, for appellant.
    Stafford, Schoede & Stafford and Morris M. Townley, for appellees.

      See Illinois Notes Digest, Vola, XI to XV, and Cumulative Quarterly, same topic and section jiuiuber.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, game topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

In April, 1902, appellant, City of Moline, contracted in writing with the Barber Asphalt Paving Company to pave a certain street in accordance with its city ordinance and specifications. The asphalt company furnished a bond in the penal sum of $40,000 with the National Surety Company as surety, for the faithful performance of the contract. April, 1910, this suit was brought against both of the companies (appellees) on that bond. The declaration set out the ordinance, contract, specifications and bond in hcec verba, and averred breaches in failure to construct the pavement and keep it in repair for 10 years in accordance with the provisions of the contract. The defendants demurred to the declaration on the ground that the ordinance was void because while providing for an improvement by special assessment, which was within the power of the city, it also provided for keeping a public street in repair for 10 years and for the payment in advance for such future repairs out of funds to be raised by special assessment, which it was not authorized to do. The court overruled this demurrer. The defendants did not stand by their demurrer but filed nine pleas in answer to the declaration. The court sustained a demurrer to all of these pleas. The defendants pleaded over, filing six pleas to the declaration. The court sustained the plaintiff’s demurrer to the second and third of those six pleas and overruled it as to each of the other four; that left the first plea, which averred a performance of the conditions imposed on the defendant asphalt company by the contract in the construction of the improvement, and the fourth plea averring the performance of its obligation under the contract to keep the pavement in repair, and the fifth and sixth pleas which were, in substance, of accord and satisfaction, each averring that after this suit was brought there was an agreement between the paving company and the City of Moline, acting therein by and through its board of local improvements, that in full and final settlement of the issues tendered by the plaintiff’s declaration said paving company should make certain repairs of the street without additional cost to the city, the fifth plea alleging that the repairs were made as agreed, and the sixth plea that they were made as agreed, and the pavement was placed in such good order and condition as was satisfactory to said board of local improvements. Each of the four pleas concluded with a verification. The plaintiff filed replications to these four pleas, denying the material facts, and concluding to the country. The defendants, by leave of court, filed an additional plea, which is called the seventh plea, averring in detail performance of various covenants counted on in the declaration, to which the plaintiff replied, concluding to the country. I

Both of the defendants (appellees) appeared on the trial and there was a verdict in favor of the plaintiff for $40,000 debt; $5,000 damages. The city moved for a new trial. The court overruled the motion and entered a judgment “that said plaintiff do have and recover of and from the said defendant, Barber Asphalt Paving Company, the said sum of $5,000, damages, as assessed by the jury, as aforesaid, together with its costs,” etc. The city prosecutes this appeal from that judgment. Its main contention here is that the verdict should have been much larger under the evidence submitted to the jury, and that the court erred in its rulings on the evidence and instructions. But it also assigns and argues as error that the judgment was entered against the Barber Asphalt Paving Company alone, while it should have been entered against both defendants, and also objects to the form of the judgment. We presume these are errors of the clerk in entering the judgment.

Appellees assign and argue cross errors on the overruling of their demurrer to the declaration, the sustaining of the demurrer to their first nine pleas filed, and the sustaining of the demurrer to the second and third of their last six pleas filed. They do not attempt to answer appellants’ argument that it was entitled to judgment in proper form against both defendants except to say that they will consent to an order directing a judgment conforming to the verdict.

The defendants waived their demurrer to the declaration by pleading to the merits after their demurrer was overruled. They did not move in arrest of judgment. The question whether the declaration was bad is not open to such consideration here as might have been demanded had they stood by their demurrer. We think the declaration was properly held good on demurrer, and conclude that whether it was or not, the question on that error, as presented here by appellees, should be determined against them.

Appellees’ also waived any error of the court in sustaining the demurrer to their first nine pleas, in so far as they were permitted to and did plead over the same matters, in substance, and so far as we can see their five pleas on which issues were joined and tried presented the same defenses tendered in said nine pleas except that in the second of said pleas it was alleged that upon the awarding of the contract it was agreed that the asphalt company should give two separate bonds, one, the construction bond (the one sued on), the other a maintenance bond, conditioned that the asphalt company should well and truly construct the improvement and thereafter keep and maintain the same for a period of 10 years, alleging the execution of both bonds and the proper construction and approval by the city, and that therefore the city should not be permitted to maintain its action on the construction bond but should be relegated to such remedy, if any, as it may have upon the maintenance bond. The court said in sustaining the demurrer to that plea that while it might be true that a second bond was taken for the purpose of covering the covenant as to the quality of the material and the labor to be used, still in his judgment it in no way impaired the cove- • nant expressed in the construction bond, and suit could be maintained on that bond for the breach of any of its terms. ' We think that ruling and reasoning of the court correct. The second and third of said six pleas filed by the defendants to which demurrers were sustained tendered issues of fact that were presented by the other five pleas upon which the case was tried, and therefore the defendants were not prejudiced by the ruling of the court in sustaining the plaintiff’s demurrer to those pleas, and we need not consider whether the pleas were bad for reasons assigned in the special demurrer to them.

The judgment is bad in form and substance and therefore must be reversed, but if no error occurred before its entry the practice requires that the case be sent back, not for a new trial, but to enter a proper judgment. (Gage v. People, 163 Ill. 39; People v. Chicago Title & Trust Co., 266 Ill. 224, 228.) Each defendant appears in this court on this appeal and expressly consents that such an order may be made.

Other errors assigned and argued may be better considered by first noting the issues submitted to the jury as stated in plaintiff’s first offered instruction, which the court gave with slight modifications of verbiag'e apparently intended only for greater accuracy of expression, and in no way affecting the substance of the instruction as it would be understood by a jury. As given it read as follows:

“The court instructs the jury that one of the issues involved in this case is whether or not the Barber Asphalt Paving Company constructed the pavement involved with such material and workmanship and of such character and quality in the original construction thereof as to comply with the guaranty set forth in Section 18 of the specifications, and if you find from the greater weight of the evidence in this case that the defendant, the Barber Asphalt Paving Company, did not construct said pavement in compliance with requirements of said contract and specifications for said work, and further find that no settlement was made between the parties, then you should find the issues for the plaintiff and assess its damages under the evidence at such sum as is the difference between the value of the pavement or improvement as constructed, and the value of the improvement or pavement if it had been constructed according to the requirements of the agreement and specifications for said work, less whatever amount has been shown by the evidence was reasonable value of the repairs made by the Barber Asphalt Paving Company in said street.”

The record filed here contains about 1,000 pages of testimony to which is devoted 320 pages of the abstract.

The original pavement was completed in October, 1902. The work was defective and the asphalt company made repairs in the years 1906, 1908, 1909, 1911 and 1912. The evidence was directed to the condition and value of the pavement as originally laid and the character and value of the improvements, and was voluminous and contradictory. The yardage of ref-pairs considerably exceeded the yardage of defective area because where there were several «holes in the pavement a large part would be cut out so as to make a large patch instead of a number of small ones. During the 10-year warranty period the contractor made about 7,000 square yards of repairs, which appellant’s evidence showed to .be of the reasonable value of $10,000 to $12,000.

Within a year after this suit was brought (April, 1910), there were repeated conferences looking to a settlement. It is agreed that definite terms were reached but not agreed what those terms were. It, however, appears without contradiction that work on the street was to be done in 1911 by the asphalt company in consideration of which the suit was to be dismissed. Work was then done, and there is a conflict in the testimony both as to whether it was well done or done in accordance with the agreement. It further appears that a year afterwards, in 19Í2, the asphalt company in response to a notice from the city made further repairs on the street, and a conflict of testimony as to the nature and value of those repairs.

It would unduly extend this opinion to discuss in detail the conflicting evidence. The jury found against appellees’ defense set up in their pleas of accord and satisfaction. The original work was not in accordance with the contract, and the asphalt company was in default in performing its undertaking to keep the pavement in repair for 10 years, but it expended large sums of money in attempted compliance with its undertaking, and under the evidence disclosed in this record or under any evidence that would probably be introduced on another trial no jury could estimate the damages with much certainty. There is such a large number of material questions resting on conflicting opinions and estimates that no two juries would be likely to reach the same verdict. We conclude that we are not justified in holding that the amount of damages found by the jury and confirmed by the trial court is not in accordance with the weight of evidence on the various questions involved and considered. Appellant argues that evidence of repairs and improvements was improperly admitted and that they should not have been taken into account in estimating the damages. The evidence could not have been excluded because .there was an issue whether the asphalt company had kept the pavement in repair during the 10-year period, and another issue whether a settlement had been agreed upon and repairs made under its terms; and appellant is itself responsible for the rule given the jury in -its instruction before quoted requiring them to estimate and deduct the value of the repairs. Appellees tendered an instruction on the measure of damages to substantially the same effect, and cites authorities here in support of that rule. It seems at least more equitable than the opposite rule that repairs and reconstruction should not be taken into account; but we will not enter into a discussion of a proposition that was conceded by both parties in the trial below.

Appellant complains of instructions on the issues arising under the appellees’ pleas of accord and satisfaction. It is sufficient answer that the jury found those issues for the appellant; therefore it was not harmed by improper rulings dr instructions touching only those issues. If they had been found for the defendants there could have been no judgment for the plaintiff.

Appellant argues that the board of local improvements had not the power to bind the city by a contract of settlement. The defendants in their pleadings averred and relied on various acts of the board of local improvements as a discharge of all liability under the bond. We think the court properly admitted evidence in support of those allegations in the pleas and that the evidence tended to show such acts and the authority of the hoard to perform them. But the verdict for the plaintiff means that the jury found that it was not estopped by any action of its board of local improvements from recovering substantial damages for breach of the covenants in the bond; therefore the city was not harmed by any ruling based on the assumption that the board of local improvements had the power to represent it in the matters alleged.

Appellant insists that defendants’ given instruction No. 14 is ground for reversal. It reads as follows:

“The Court further instructs the jury that you are not obliged to accept as true the testimony of any witness merely because he has testified positively to a fact, or state of facts, if in your opinion, judging from your own common observation, he is or may be mistaken concerning the matters and things about which he has testified. You have the right to believe all the testimony of a witness, or to believe it in part, and disbelieve it in part, or you may reject it altogether as you may find the evidence to be when considered as a whole.”

The jury had been directed in other instructions to find and determine the facts from the .evidence. The last clause of the instruction authorizing the acceptance or rejection of the testimony of a witness as the jury might find the evidence to be when considered as a whole is undoubtedly correct. The first clause authorizes the rejection of the testimony of a witness if in the opinion of the jury, judging from their own common observation, he is or may be mistaken. It is true that jurors do and should consider the evidence in the light of their common knowledge and experience in the affairs of life. The court in Bailey v. Robison, 149 Ill. App. 457, held an instruction good containing this language: “You are to believe as jurors what you believe as men, and there is no rule of law which requires you to believe as jurors what you would not believe as men,” on the authority of People v. Zajicek, 233 Ill. 198, 216, which is that the jury may properly be advised that they are not at liberty to disbelieve as jurors if from the evidence they believe as men; that their., oath imposes on them no obligation to doubt where no doubt would have existed if no oath had been administered. It is there said to be settled law that such instruction, is proper since the decision in Spies v. People, 122 Ill. 1, and Watt v. People, 126 Ill. 9. Bailey v. Robison, supra, was reversed on appeal (244 Ill. 16), but it was not suggested in the opinion that either the Circuit or Appellate Court erred in passing upon the instruction. In Goss Printing Press Co. v. Lempke, 191 Ill. 199, 201, the following instruction was given:

“The jury are not necessarily bound to believe anything to be a fact because a witness has stated it to be so, provided the jury believe, from the evidence, that such witness is mistaken or has sworn falsely as to such fact.”

And the court said:

“The point made against the instruction is, that it failed to state correctly the rule by which the jury should have been governed in determining the credit to be given to the different witnesses who testified in the case. We do not understand from this instruction that its object was to state the well known rule on this subject at all. The instruction could not have been of much importance in the case, for it would not be at all probable that jurors would believe any particular thing testified to by a witness as a fact to be a fact, which, from all the evidence before them, they believed was not a fact. It was limited to a particular fact in the case, and did not extend to or bear upon the rule by which the credibility of witnesses should be determined.”

The instruction in the present case directed to the whole testimony of a witness is not justified by Illinois authorities, and should have been refused, but we do not see how it could have affected the verdict. It might as well have been offered by one side as the other. Counsel do not point out and we cannot see how the defendants in the trial of the case could have made any favorable application of the principles announced, and if it had any influence on the jury it is very unlikely that it was other or different than if it had been correctly framed as indicated in authorities above cited. We cannot see that it was prejudicial error, and do not think it should be held reversible error.

We have not discussed errors in instructions and admission of evidence that affect only the questions involved in the issues of settlement of the case after suit brought because, as we have before said, those issues were found for the plaintiff. The court tried the case on a rule of measure of damages adopted by both parties. The rulings on evidence and instructions were in substantial accord with a proper inquiry under that rule. In the absence of the error in entering judgment on the verdict we would find no reversible error, but because of that error the judgment will be reversed and the cause remanded to the court below with directions to enter a judgment against both defendants for $40,000 debt to be satisfied on the payment of the $5,000 awarded as damages, together with interest on said damages at 5 per cent, per annum from the date of the receipt of the verdict to the date when such new judgment is entered, such interest to be computed by the court entering judgment.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Presiding Justice Carnes

license: Public Domain

text:
    W. C. Foster, Plaintiff in Error, v. C. M. Church and William Bowley, Defendants in Error.
    Gen. No. 6,405.
    (Not to be reported in full.)
    Error to the Circuit Court of Boone county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed February 12, 1918.
    Statement of the Case.
    Petition by W. 0. Poster for a writ of mandamus against C. M. Church, county treasurer, and William Bowley, county clerk, defendants, to compel the county clerk to make an entry opposite the description of certain property purchased by the petitioner at a tax sale on a judgment of the County Court, based on a certain special assessment for the improvement of certain streets in the City of Belvidere, Boone county, that the property was erroneously sold, and the county treasurer to refund on demand the amount paid for the certificate of sale. From a judgment for the defendants, on demurrer, dismissing the petition, plaintiff brings error.
    Abstract of the Decision.
    Municipal corporations—when description in delinquent tax list notice and in judgment on tax sale of railroad property is void for uncertainty. A description in a delinquent tax list notice published of “Belvidere City Railway Co. right of way, tracks, etc., $327.70,” and in the judgment on tax sale of “Right of way, tracks and franchise of Belvidere City Railway Company, its successors, assigns,” held void for uncertainty, under section 40 of the Local Improvement Act (J. & A. T 1430), providing that in levying special assessments each lot, block, tract or parcel of land shall be assessed separately in the same manner as upon assessment for general taxation except the property of railroad companies or the right of way and franchise of street railway companies, which may be described in any manner sufficient to reasonably identify the property intended to be assessed, in a petition for a writ of mandamus under section 213 of the Revenue Act (J. & A. jf 9432), providing for entry on the sale and redemption record of a tax sale that the property was erroneously sold and for refund of the amount paid.
    The property was described in the judgment as: “Eight of way, tracks and franchise of Belvidere City Railway Company, its successors, assigns,” and in the delinquent tax list notice published as: “Belvidere City Railway Co. right of way, tracks, etc., for $327.70.”
    Frank D. Fulton and Eugene L. Garey, for plaintiff in error; Earl James Garey, of counsel.
    William L. Pierce, for defendants in error.
   Mr. Presiding Justice Carnes

delivered the opinion of the court.


text:
    James C. Shreffler, Appellee, v. Cora Fuller, Appellant.
    Gen. No. 6,469.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and ebbob, § 864

      —what is duty of appellant as to filing abstract. It is the duty of an appellant to file an abstract showing the matters on which he relies for a reversal of the judgment.
    2. Appeal and ebbob, § 894*—what is right of appellee as to filing additional abstract. The appellee has the right to file an additional abstract, but is under no duty to make it full and complete.
    3. Appeal and ebbob, § 864*—when record will not be examined. A reviewing court will not examine the record to find grounds for reversing, but may do so to find reasons for affirming a judgment.
    4. Continúan ce, § 7*-—when denial of motion, for is proper. The denial of motion for a continuance in the middle of a trial solely on the ground of filing of additional counts which did not enlarge the bill of particulars and contained nothing to surprise the defendant or require continuance, was not erroneous.

      Appeal from the Circuit Court of Kankakee county; the Hon. Abthtjb W. Deselm, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed February 12, 1918.
    Statement of the Case.
    Action by James C. Shreffler, plaintiff, against Cora Fuller, defendant, to recover for labor in clearing some wood land and working the logs into lumber. From a judgment for plaintiff for $486.95, including interest after date of verdict for $475, defendant appeals.
    Frank J. Burns and James T. Burns, for appellant.
    C. M. Clay Buntain, for appellee.

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

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

5. Appeal and error, § 1489 —when error in admission of evidence is harmless. The testimony of a witness to the result of a measurement of lumber, that he evidently only knew as he was told by the party measuring it in his presence, was incompetent, but its admission not harmful where there was other competent uncontradicted evidence of the same measurement.

6. Appeal and error, § 1466*—when admission of hill of particulars in evidence is harmless error. The admission in evidence of plaintiff’s bill of particulars, over objection, was not reversible error where there was no reason to suppose it was„ considered or used by the jury as substantive evidence.

7. Trial, § 233*—when hill of particulars is properly sent to jury room. The bill of particulars was properly sent to the jury room as part of the pleadings to he used by them in considering and discussing the items of the plaintiff’s claim, although it had been erroneously admitted in evidence, in an action of assumpsit to recover for labor performed.

8. Trial, § 272*—when requested interrogatory is properly refused. An interrogatory to he answered by the jury, but not presented until after argument, is properly refused.

9. Trial, § 270*—when special interrogatories are properly refused as a whole. Special interrogatories submitted to be answered by the jury and returned with their general verdict, held properly refused, considered as a whole, where they were directed to the several different items of plaintiff’s claim, seeking a finding upon each, and not to a controlling fact in the case as a whole, under the second clause óf section 79 of the Practice Act (J. & A. f 8616), providing that the jury may find specially upon questions of fact along with their general verdict.


text:
    Nels P. Nelson, Administrator, Defendant in Error, v. Carolina Lofgren, Plaintiff in Error. J. Albert Lofgren et al., Defendants in Error.
    Gen. No. 6,476.
    (Not to be reported in full.)
    Abstract of the Decision.
    WIlls, § 413

      —when life tenant is entitled to portion of principal. Where a testator’s will bequeathed to his wife the use for life of all of his property and provided that if the income should be insufficient to maintain her in a comfortable manner the executors should sell a portion of the real estate for the purpose of giving her a good living, and bequeathed the residue of his estate after his wife’s death to his children, and directed the executors, should his wife not desire to live in the present homestead, to sell it and purchase or rent one to her liking, held that the wife was entitled not only to the life use of the estate but to a portion of the principal estate, sufficient to give her a good living.

      Error to the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed February 12, 1918.
    Statement of the Case.
    Bill by Neis P. Nelson, administrator with the will annexed of the estate of John Lofgren, deceased, complainant, against Carolina Lofgren, widow, and J. Albert, J. Raymond, Prank, Charles and Coronal Lofgren and Ida Lofgren Anderson, six children of the deceased by a former marriage, to construe ■ the will of the deceased. Prom a decree finding the will gives and bequeaths the widow the life use only of the estate, she brings error.
    Fisher & North, for plaintiff in error.
    Roy P. Hall and Bruce H. Garrett, for defendants in error.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.


text:
    John Funk, Defendant in Error, v. Chase Fowler, Plaintiff in Error.
    Gen. No. 6,479.
    (Not to he reported in full.)
    Error to the Circuit Court of La Salle county; the Hon. Edgab Ebdbedge and Hon. Joe A. Davis, Judges, presiding. Heard in this court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed February 12, 1918.
    Statement of the Case.
    Bill by John Funk, complainant, against Chase Fowler, defendant, for accounting. From a decree finding $15,118.10 due from defendant to complainant, defendant brings error.
    The history of the litigation appears in former opinions in the same case. See 179 Ill. App. 356, and 193 Ill. App. 180. The cause, being reinstated, was referred to a master in chancery who reported the amount due complainant from defendant was $14,-512.11, that the premises in controversy were of the value of $8,000, and that the defendant was insolvent. The report was approved, with small changes, and interest added to date of decree.
    McDougall & Chapman, for plaintiff in error.
    M. M. Armstrong and Lester H. Strawn, for defendant in error.

      Abstract of the Decision.
    1. Appeal and error, § 1733

      —when decision on former appeal ■ is binding. Former opinion held binding on the trial court and to foreclose the question of defendant’s attorney fees on reinstatement in that court, in a suit by a client against his attorney for an accounting.
    2. Attorney and client, § 89*—when evidence shows note is debt of attorney. Evidence held sufficient to warrant a finding of the master and chancellor that a certain note signed by both plaintiff and defendant was a debt of defendant and properly chargeable to him, in a suit for accounting hy a client against his attorney.
    3. Attorney and client, § 89*—when evidence warrants finding as to value of farm of client. Evidence held sufficient to warrant the master’s finding of rental value of the farm in question as the highest market valúe, notwithstanding plaintiff claimed a special value to him in a suit for accounting by a client against his attorney. '
    4. Appeal and error, § 1575*—when method of computation of interest is „ not prejudicial. Defendant was not prejudiced by a method of computation of interest adopted by the master in chancery in computing interest on an account where the method urged by appellant would result in only a slight increase in the amount found due him, in a suit for accounting, but if the amount found was substantially too large, it should he corrected.
    5. Account, § 1570*—when provision in decree prohibiting attempts to collect allowed account is not harmful. When a party td an accounting has a demand against his opponent allowed, and thus practically paid, he is not harmed hy a provision in the decree prohibiting him from further harassing his opponent with attempts to collect it.
    6. Injunction, § 1570*—when defendant is not harmed by decree making perpetual an injunction against prosecution of suit. Defendant was not harmed by a decree making perpetual an injunction against him from prosecuting a certain suit irrespective of the fact he had already dismissed the suit.
    7. Mortgages, § 551 *—rwhen period for redemption from foreclosure sale is proper. A decree fixing the period for redemption from a foreclosure sale at 4 months held proper, in a suit for accounting and cross-bill in the nature of a hill to redeem, where the Appellate Court in a former opinion directed a decree with the period ‘of redemption fixed therein.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.


text:
    Jed Giroux, Appellee, v. W. B. Fuller and Carl H. Yoder, Appellants.
    Gen. No. 6,481. (Not to be reported in full.)
    Appeal from the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed February 12, 1918.
    Statement of the Case.
    Action by Jed Giroux, plaintiff, against W. B. Fuller and Carl H. Yoder, defendants, to recover a balance due on certain promissory notes executed by the defendant Fuller as maker and the defendant Yoder as surety. From a judgment for plaintiff for $200.87, defendants appeal.
    The defendant Fuller, being heavily in debt, made a composition agreement with his creditors, at which time the plaintiff held an unsatisfied judgment against him and his wife and refused to join in the agreement unless Fuller would secure the part of the judgment debt that would not in that way be paid. Accordingly at the same time and practically as part of the same transaction, Fuller procured defendant Yoder to sign as surety the notes in question for the estimated amount of the part not in that way to be paid. The notes were delivered, the agreement was signed, and satisfaction in full of the judgment entered. Plaintiff received his percentage under the agreement and also payments from time to time on the notes and renewal signed by both defendants.
    Abstract of the Decision.
    1. Justices of the peace, § 39

      —when amount of judgment is within jurisdiction of justice. Where judgment was entered by a justice of the peace for an amount exceeding $200, the excess being interest accrued while the action was pending, held that the judgment as entered was within the jurisdiction of the magistrate.
    2. Peinctpal and sueety, § 2*—when no consideration moving to surety is required. Where a surety signed a promissory note given by the maker, who was a bankrupt, to a judgment creditor for an amount which it was estimated a composition agreement signed by the judgment creditor as part of the same transaction would leave unpaid on the judgment, for which the creditor thereupon entered satisfaction, held that the consideration of the note was a part of the debtor’s indebtedness to such creditor and that he would sign the composition agreement, and no consideration-moving to the surety was required.
    Roscos C. South, for appellants.
    Pallissard & Benjamin and Elmer A. Taylor, for appellee.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.


text:
    The People of the State of Illinois, Appellee, v. Fay Lewis and Sam Nick. Fay Lewis, Appellant.
    Gen. No. 6,484.
    1. Bail, § 72

      —what is nature of writ of scire facias. A scire facias writ in a proceeding on a recognizance is not a declaration, although considered in practice as, or as in lieu of a declaration.
    2. Bait,, § 91*—when defendant not entitled to judgment as in case of nonsuit. Section 32 of the Practice Act (J. & A. IF 8569), providing that if a declaration and copy of writing or account sued on shall not be filed ten days before the second term of the court a defendant is entitled to judgment as in case of nonsuit, has no application to a scire facias, in a proceeding on a recognizance.
    3. Bait., § 98*—when surety cannot question ruling denying leave to file copy of writ of scire facias. Where a writ of scire facias in a proceeding on a recognizance was lost, and, on motion of the State at whose instance it was issued, resisted by the defendant, the court refused leave to file a substantial copy of the writ and the return thereon, held that the defendant surety could not question on appeal the ruling of the court.
    4. Bail, § 80*—when alias writ of seire facias may issue. An alias writ of scire facias may issue when necessary, in a proceeding on a recognizance given in criminal proceedings.
    Appeal from the Circuit Court of Winnebago county; the Hon. James S. Batjmb, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed February 12, 1918.
    Fisher & North, for appellant Fay Lewis.
    William Johnson, for appellee.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

Fay Lewis, appellant, entered into a recognizance in the sum of $1,000 as surety for one Sam Nick, who had been held by a police magistrate to appear to the October term, 1915, of the Circuit Court of Winnebago county, to await the action of the grand jury on a charge of burglary and larceny. At said October term the grand jury returned an indictment against Sam Nick, and he failing to appear the recognizance was declared forfeited and a scire facias ordered returnable to the January term, 1916, of said court. The writ issued and was served on the appellant by reading and by copy, and the sheriff’s return indorsed thereon showing such service, and that said Nick was not found. At said January term, March 28, 1916, appellant appeared and moved for a continuance of the cause to the April term, 1916, which was allowed, and the cause continued. At said April term, May 1, 1916, it was discovered that the writ had been lost by a deputy in the sheriff’s office and could not be found and had never been in the circuit clerk’s office after it was first issued. The State’s Attorney set up the foregoing facts in a verified petition reciting the substance of said lost scire facias and the return thereon, and asking for an order permitting a substantial copy of the scire facias and the return to be filed and entered of record as of the date of the return day of said scire facias. Appellant resisted the motion. The court found that the original writ of scire facias had been lost, but denied the motion for leave to file a substantial copy; whereupon the people asked for an order for an alias writ of scire facias, which was granted, and the clerk of the court directed to issue the same returnable to the October term, 1916, of said court. The alias writ accordingly issued and was duly served on appellant Fay Lewis, and as to said Nick, not found. At the October term appellant filed a general demurrer to the alias writ, which was overruled. He then moved to quash, which motion was denied, and he took leave to plead by the first day of the January term, 1917. He then appeared and filed two pleas, in the first, setting up the issue, service and loss of the first writ, and averring that neither the original nor any copy thereof was filed in'the Circuit Court “at any time prior to ten days before the second term of said court after the term of said court to which said writ of scire facias was returnable.” In the second plea he averred that the writ was not issued returnable on the first day of the next term of the court after the term at which the judgment of forfeiture was declared. The people demurred to these pleas and the defendant asked that the demurrer be carried back to the scire facias. The court denied the motion to carry the demurrer back and sustained the demurrer to the pleas. Appellant elected to stand by his pleas, and the judgment of forfeiture theretofore entered was made absolute, and judgment for the amount of the bond, $1,000, entered against appellant.

The entire defense attempted is based on the assumption that the scire facias is a declaration in the case and therefore must not only be sufficient in its averments for the purposes of a declaration, but also falls within the provisions of section 32 of our Practice Act (J. & A. ¶ 8569), providing that if the declaration and copy of writing or account sued on shall not be filed 10 days before the second term of the court, a defendant is entitled to a judgment as in case of non-suit.

It was held in Wood v. People, 16 Ill. 171, that in scire facias upon a recognizance the writ is regarded as both process and pleading and contains the allegations essential to a valid declaration; that the defendant answers it as he would a declaration; that this might be a departure from the English practice but was convenient and could not operate to the prejudice of cognizors; that the merits of the case are not in the least affected by dispensing with a declaration; that a scire facias is a judicial writ based upon matter of record and is but a continuation of the previous proceedings in the case and “does not fall within the statutory provisions requiring declarations to be filed in original actions ”; therefore that a declaration is unnecessary in the proceeding by scire facias upon a forfeited recognizance. The court discussed the writ as a writ and not as a declaration, and expressly held that the statute requiring the declaration to be filed was not applicable and therefore a declaration is entirely dispensed with in the proceeding. The practice indicated is that no declaration be prepared under the rules governing drafting of that pleading, but that a writ be issued embodying the necessary averments of fact to show the defendant’s liability, and, that being done, a declaration is entirely dispensed with; that on subsequent pleadings rules applicable to issues of law or fact based on averment or lack of averment in a declaration be followed. Since that decision the courts have repeatedly said that the writ stands in the place of a declaration; serves a double purpose; performs the office of a declaration. We find no case indicating that the writ is a declaration subject to statutory rules applicable only to declarations. The court said in Lawrence v. People, 17 Ill. 172: “The scire facias stands in the place of a declaration, and, for the purposes of pleading, fills the same office.” We do not think that quoted statement has been changed in meaning in subsequent cases when expressions used are read in connection with what the court was considering. See Shadley v. People, 17 Ill. 252; Conner v. People, 20 Ill. 381; McFadden v. Fortier, 20 Ill. 513; Farris v. People, 58 Ill. 26; Rietzell v. People, 72 Ill. 416; Peacock v. People, 83 Ill. 331; Compton v. People, 86 Ill. 176; Smith v. Stevens, 133 Ill. 183; McNamara v. People, 183 Ill. 164.

We see no reason for applying the section in the Practice Act dealing only with declarations to a document that is held not to be one. Section 17 of division 3 of our Criminal Code (J. & A. ¶ 4005) requires the scire facias to be issued returnable on the first day of the next term of the court and to be served at least five days before the return day. In the present case the writ was issued and served in compliance with that statutory provision. It was lost before it was returned into the circuit clerk’s possession. Appellant is responsible for the court’s ruling that a substantial copy of the writ and the return could not be filed, and cannot here question that ruling; therefore we do not consider whether the court was then in error. But assuming he was not, there was nothing left but to issue an alias writ. If express authority is needed to show that an alias writ of scire facias may issue if it becomes necessary, it is found in Lane v. People, 76 Ill. 300. Finding no reversible error in the record, the judgment is affirmed.

Affirmed.


text:
    Margaret McDonald, by Patrick McDonald, Appellee, v. City of Spring Valley, Appellant.
    Gen. No. 6,488.
    1. Statutes, § 156

      —necessity of Legislature inserting saving clauses. Where saving clauses to statutes are omitted by the Legislature, the courts are 'powerless to supply them.
    2. .Municipal corporations, § 1224*—who required to file notice of injuries with city attorney and cleric. Section 2 of the Injuries Act'(J. & A. If 6190), providing that any person who is about to bring an action or suit in any court against a city, village or town for damages on account of any personal injury shall, either by himself, agent or attorney, within 6 months from the date of injury, or when the cause of action accrued, file a written statement of his accident and injuries with the city attorney and city clerk, is applicable to all persons regardless of age.
    Appeal from the Circuit Court of Bureau county; the Hon. Joe A. Davis, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed.
    Opinion filed February 12, 1918.

      M. P. Cornelius and J. E. Malone, Jr., for appellant; Mantón Maverick, of counsel.
    J. L. Spaulding and C. Ñ. Hollerich, for appellee.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

The appellee, Margaret McDonald, a child 7 years old, brought this action March 27, 1917, by her next friend against the City of Spring Valley, the appellant, to recover damages for an injury to her person alleged to have been caused June 24, 1916, by the negligence of appellant in the care of its streets. She alleged in her declaration service of notice to appellant on March 14, 1917, in attempted compliance with section 2 of our Injuries Act of 1905 (Hurd’s Rev. St. p. 1370, J. & A. ¶ 6190), and further alleged, in attempted avoidance of the provision that such notice must be served within 6 months from the date of the injury, that on account of her tender years she did not know and was not informed of the existence of the statute and because of her physical and mental incapacity it was impossible to give said notice.

Section 2 reads as follows:

“Any person who is about to bring any action or suit at law in any court against any incorporated city, village or town for damages on account of any personal injury shall, within six months from the date of injury, or when the cause of action accrued, either by himself, agent or attorney, file in the office of the city attorney (if there is a city attorney, and also in the office of the city clerk) a statement in writing, signed by such person, his ageiit or attorney, giving the name of the person to whom such cause of action has accrued, the name and residence of person injured, the date- and about the hour of the accident, the place or location where such accident occurred, and the name and address of the attending physician (if any).”

A demurrer was filed on the ground that the declaration showed the plaintiff had failed to comply with the act, and overruled. The defendant electing to abide by its demurrer, a jury was called to assess damages and returned a verdict of $1,000, on which the court, after overruling the defendant’s motions for a new trial and in arrest, entered judgment.

It is conceded by appellee’s counsel, as it must be under numerous decisions of our Supreme Court, that the declaration must show a compliance with the statutory requirement. But they insist no statute can be construed as requiring an impossibility, and cite a number of Illinois cases, including Condon v. City of Chicago, 249 Ill. 596, holding that a construction of a statute which leads to an absurd consequence should be avoided, and say that to require service of notice by a child 7 years old incapable of appointing an agent for that purpose is absurd and the statute if so construed is unconstitutional and void. The contention in the above cited case was' somewhat similar, and the court refused to read an exception into the statute and also held the act constitutional.

The only question presented here is whether the plaintiff was excused from complying with that requirement of the statute; whether the words “any person” used in the act are to be read as qualified by the phrase not under disability, not an infant, or not an infant of so tender years as to be entirely iácapáble of knowing or understanding and citing upon the requirements of law. Appellee argues that at least the last suggested phrase be inserted.

Many statutes prescribing the time within which some act must be performed, as for instance the statute of limitations, contain saving clauses in favor of persons under disability. The law has for a long time been settled that where saving clauses are omitted by the Legislature the courts are powerless to supply them. It was said in Bank of Alabama v. Dal ton, 9 How. (U. S.) 521, 528, the Legislature having made no exception, the courts of justice-can make none, as this would be legislation; that the Legislature had made exceptions wherever it was deemed expedient, and the rule is established beyond controversy that the courts cannot add exceptions, and that the court was not aware that the reverse is held in any state in the union. The Supreme Court of Ohio in Powell v. Koehler, 52 Ohio St. 103, 119, quoted from Chancellor Kent in the case of Demarest v. Wynkoop, 3 Johns. Ch. 129, that: “The doctrine of any inherent equity creating an exception as to any disability, where the statute of limitations creates none, has been long, and, I believe, uniformly exploded. General words in the statute must receive a general construction; and if there be no express exception, the court can create none.” Our Supreme Court in Stevenson v. Westfall, 18 Ill. 209, 217, treated the rule that a supposed disability not made an exception in the statute could not be made one by the court as so well established that it required only its statement without citation of authority. We find in the text of 25 Cyc. 1262, that no exception can be claimed in favor of minors in the statutory provision limiting the time for commencing actions given by such statute unless they are expressly mentioned by the statute as excepted. The author supports the text by reference to authorities of several states, as well as Schauble v. Schulz, 69 C. C. A. 581, 137 Fed. 389, holding that the exemptions usually accorded to infants do not rest upon any fundamental doctrine of the law but only upon expressed provisions therefor in the statute, and that it is competent for the Legislature to put infants and adults upon the same footing in this respect, and that such is the effect of a statute containing no saving clause exempting infants. In the late case of Atlanta & W. P. R. Co. v. Coleman, 142 Ga. 94, 82 S. E. 499, the- court cites authorities in support of the-above rule, and gathers from them the proposition that the question whether the statutory limitation applies to infants so that they would not be barred is “not .a matter of fundamental right, but of legislative intent.”

In 1 Corpus Juris 977, the text discusses notice required by statute as a condition precedent to an action, and a note is added as to personal injury cases, and it is there said on the authority of Hoffmann v. Milwaukee Elec. Railway & Light Co., 127 Wis. 76, 106 N. W. 808, that they apply to all persons, including minors.

■ We do not understand counsel to deny the rule as applied to the general statute of limitations, but they say the principle underlying the two statutes are different; that the statute of limitations affects the remedy only, while this statute denies a right. We see little force in this distinction. The statute of limitations is now generally regarded as one of repose for the object of suppressing fraudulent and stale claims from springing up at great distances of time and surprising the parties or their representatives when all the proper evidences and vouchers are lost, or the facts are become obscure from lapse of time or the defective memory or death or removal of witnesses. (25 Cyc. 983.) The theory of the law is not that the plaintiff has no right, but that he shall not be permitted to enforce his right unless he complies with the requirements of the statute to do certain things which the law requires to be done in a prescribed manner within a time limited by the statute. He must not only assert his right but he must observe the law that defines what is and what is not the beginning of an action, and failing to do so he is deprived of all remedy. It may be technically correct to say that he is still in possession of his right of property, but so far as the question has any bearing here it is a distinction without a difference. Our Supreme Court in Board of Education of Normal School Dist. v. Blod gett, 155 Ill. 441, 450, in discussing this distinction between rights and remedies, quoted with approval the language in the dissenting opinion' of Mr. Justice Bradley in Campbell v. Holt, 115 U. S. 620: ‘Remedies are the life of rights, and are equally protected by the constitution. Deprivation of a remedy is equivalent to a deprivation of the right which it is intended to vindicate, unless another remedy exists or is substituted for that which is taken away.” The object of the statute under consideration here is to furnish timely notice'to the municipality that the party claims to have sustained an injury and proposes to enforce his claim for damages and thereby enable the corporation to investigate the claim while the facts are fresh and the justice of the claim can be readily ascertained. (Donaldson v. Village of Dieterich, 247 Ill. 522, 526.) The purpose of each statute is to protect the defendant from an action brought under conditions where he would not have a fair opportunity to ascertain the facts and prove a legitimate defense. We do not see that they differ in purpose or principle. If the service of the required notice in compliance with the statute is a condition precedent to the right of recovery, and it be true, as we understand counsel' for appellee to contend, that this statute affects a right and not a remedy, then perhaps the rule should be applied that it is not an excuse for the nonperformance of a condition precedent that performance has become impossible if such performance has not been prevented by the act of the defendant, even though it was prevented by the act of God. (1 Corpus Juris 977.)

Counsel say, we think correctly, the question presented here has never been passed upon in this State. Similar statutes have been held applicable to cases of injuries to infants in other jurisdictions. In Morgan v. City of Des Moines, 54 Fed. 456, a child 4 years old was held barred of recovery by failure of service of the required statutory notice, the court saying: “The law-making power of the State is charged with the duty of legislating, which it has exercised in this instance; and, whether exercised wisely or not (which this court is not called upon to decide), such legislation is binding upon this court.” The case was affirmed by the Circuit Court of Appeals (60 Fed. 208), the court saying that it was entirely competent for the Legislature to enact a general statute putting minors and adults on the same footing as to all causes of action, and such would be the legal effect of a statute containing no saving clause exempting infants from its operation, and adding that this principle has never been questioned. In Vance v. Vance, 108 U. S. 514, the court said that the argument against the justice and wisdom of the statute which- contains no saving clause in favor of infants must be addressed to the Legislature and not to the courts. To the same effect is Davidson v. City of Muskegon, Ill Mich. 454, 69 N. W. 670; Peoples v. City of Valparaiso, 178 Ind. 673, 100 N. E. 70; Schmidt v. City of Fremont, 70 Neb. 577; and Ellis v. City of Kearney, 80 Neb. 51.

There are cases holding the plaintiff excused from giving the required notice within the required time if he was physically and mentally unable to do so, among them Born v. City of Spokane, 27 Wash. 719, 68 Pac. 386; Terrell v. City of Washington, 158 N. C. 281, 73 S. E. 888; and Murphy v. Village of Ft. Edward, 213 N. Y. 397 [9 N. C. C. A. 279]. In the latter case the rule was applied in favor of a child 5 years old, held as matter of law to be excused because of physical and mental inability; but the court said its conclusion was not in accord with the rule enforced in some jurisdictions that infants are not excepted from the operation of the statutory requirement. These cases hold a declaration good if it alleges mental and physical incapacity, and where there is a doubt about the fact treat that as a question for the jury, opening the door to much controversy and robbing the statute of a great part of its effect. They are based on supposed hardship in the application of the law as written by the Legislature. In some of them the time prescribed within which such notice must be given is so short that it might be well apprehended that a person seriously injured would not be able, and his friends might not be able in the exercise of ordinary diligence, to comply with the law. Our statute gives the plaintiff 6 months from the date of the injury, or when the cause of action accrued, to file the notice either by himself,' or agent, or attorney. In the present case the notice Was served by the plaintiff’s next friend. Ho question is raised, and we think there is no doubt that such service, if it had been in time, was sufficient. While plaintiff could not appoint an agent or employ an attorney to act for her in the ordinary affairs of life, she could bring this suit by her next friend, and we have no doubt that he could legally act for her in the service of the notice. It is true that hardship and injustice may sometimes be occasioned in the enforcement of this statute as written. It is also true of the statute of limitations; but it is regarded as a necessary, beneficent law beyond the province of courts to amend, even if they regard it in some repeats unwholesome and mischievous, much less to disregard in cases of individual hardship. In actual practice, judging from the numerous cases of injury to minors and small children constantly litigated in our courts, it would seem that their rights are quite as well and promptly asserted as are those of adults. But be that as it may, we are of the opinion that the Legislature in plain language made the statute applicable to all persons regardless of age, and that it is not the duty or privilege of a court to exclude from the operation of the act a large portion of mankind.

It follows that in our opinion the court erred in overruling the demurrer to the declaration, therefore the judgment is reversed. We assume no- notice was served on appellant other than as alleged in the declaration, therefore the cause is not remanded.

Reversed.


text:
    Valentine Sierzchula, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    Gen. No. 6,502.
    1. Master and servant, § 550

      —When declaration in action for negligence is good after verdict. A declaration charging as negligence that defendant “carelessly and negligently caused said train to strike the plaintiff,” in an action by a servant against a railroad company to recover damages for such negligence, held good after verdict.
    2. Master and servant, § 98*—what is subject of inquiry in action under Federal Employers’ Liability Act. In an action brought under the Federal Employers’ Liability Act, providing that contributory negligence shall diminish damages, the inquiry is whether or not the evidence shows that the defendant’s trainmen neglected a duty owed to plaintiff which either with or without negligence on his part was the proximate cause of the injury, where plaintiff was struck by defendant’s train.
    3. Master and servant, § 106*—what is duty of train crew to avoid injury to section man. In the absence of knowledge or notice of danger, a train crew owes no duty to a section man to warn him of the approach of the train or to keep the train under control to avoid injuring him, and may reasonably presume that the section man will act on the ordinary instincts of human nature in avoiding danger and injury.

      4. Master and servant, § 772*—when evidence is insufficient to warrant direction of verdict for defendant. Evidence that plaintiff, a section man, was seen by defendant’s train crew and timely warned of his danger in going upon the defendant’s tracks and disregarded the warning, held insufficient to warrant directing a verdict for defendant on that ground.
    5. Master and servant, § 683*—when evidence is insufficient to show negligence in operation of train. Evidence held insufficient to prove the charge that defendant carelessly and negligently caused its railroad train to strike plaintiff, a section man, whereby he was injured.
    Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed with finding of fact.
    Opinion filed February 12, 1918.
    0’Donnell, Donovan & Bray, for appellant; Winston, Payne, Strawn & Shaw, of counsel.
    James W. Faulkner and John W. Downey, for appellee.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

In September, 1913, appellee, Valentine Sierzchula, was in the employ of appellant as a section hand working on its double track roadbed between Borneo and Lemont, two stations on its Joliet and Chicago line. He was about 68 years old, an experienced section hand, and had been working for appellant on that line several months. On a Monday morning he, with 6 other members of his gang’, went on a hand car to a point near a small bridge to continue work ballasting the track. When last there they had left part of their tools in a box and hid part of them in the weeds. They removed their hand car and were getting their tools when appellee crossed the southbound track, and, without looking south, stepped over the west rail of the northbound track and was struck by the engine of a passenger train running north at a rate of 30 to 35 miles an hour until near the place of the accident, and slowing down to about 12 or 15 miles an hour at that place. The location was in the country away from highway crossings. There was no statutory duty to there ring a bell or sound a whistle. The train was running on time, appellee was familiar with the situation, knew when the train was due at the next station, and understood from instructions he had theretofore received that it was a section hand’s duty to look out for trains. The place in question was on a curve of 1 degree and 30 minutes to the northeast, 3,300 feet in length. The right of way was 100 feet wide. The roadbed or embankment on which the tracks were laid extended 7 or 8 feet from the outside rail of the track. In the absence of weeds at the side of the roadbed a train approaching from the south could be seen at a distance of about 1,500 feet. At this time there were tall weeds growing on the right of way. Appellee offered evidence tending to show that the view to the south was so obstructed that an approaching train could not be seen for more than 100 feet, and that there was no signal or warning of the approach of this passenger train. Appellant’s evidence indicated that there was a clear view from the point where appellee was struck several hundred feet to the south. The engineer of the train had died before the trial, but the fireman testified that he was 500 or 600 feet from appellee when he first saw him; that the engineer blew the whistle, and, after running 100 feet, applied the brakes and that the train stopped with its rear car at about the place where appellee was struck. Several witnesses, including one called by appellee, corroborated the fireman saying they heard the whistle. Appellee and other of his witnesses testified that they did not hear it and would have heard it if it had sounded. Appellant’s theory is that there was a clear view of the south for several hundred feet; that the trainmen saw appellee and gave him sufficient warning to enable any one "in the exercise of ordinary care to escape danger. Appellee’s theory is that the view was obstructed by weeds, and the train approached without signal or warning. It is not claimed that the trainmen had any notice that appellee was on the track except a general knowledge that section men might be engaged on any part of the right of way keeping the track in order.

Appellee’s injury was an oblique fracture of the left tibia. He was in the hospital about. 8 weeks under the care of a surgeon, his expenses there paid by appellant. He claimed at the time of the trial he was still unable to perform manual labor. He brought this action to recover for that injury and had a verdict for $4,000, on which the court, after overruling the defendant’s motions for a new trial and in arrest entered judgment.

The case was tried on one count of the declaration charging as negligence that the defendant ‘ ‘carelessly and negligently caused said train to strike the said appellee. ’ ’ The general issue was pleaded. It is argued that the allegation of negligence is insufficient and that the motion in arrest of judgment should have been granted, and claimed that the averment in Chicago City Ry. Co. v. Jennings, 157 Ill. 274, that the defendant’s servants “carelessly and improperly drove and managed the motor and train” is so substantially different from that in the present case that the Jennings case is not an authority sustaining this declaration. We are of the opinion that the declaration was at least good after verdict on the authority of City of Chicago v. Selz, Schwab & Co., 202 Ill. 545, 548; but it is to be remembered that the negligence charged is confined to the operation of the train, and no question is presented as to a safe place to work or the failure of the foreman of the section gang to warn appellee of the approach of the train.

If appellant’s theory of the facts is correct it is not guilty of the negligence charged. If appellee’s theory is correct, the question is presented whether the trainmen neglected any duty owed to appellee to give him warning or to approach with the engine under control to avoid injuring him. The action is brought under the Federal Employers’ Liability Act which provides that:

“The fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.”

Therefore the inquiry is whether or not the evidence shows the trainmen neglected a duty owed to appellee which either with or without negligence on his part was the proximate cause of the injury. (Hardwick v. Wabash R. Co., 181 Mo. App. 156.) Appellee’s negligence cannot bar a recovery if appellant was negligent, it being impossible that his negligence should equal the combined negligence of the two. (Pennsylvania Co. v. Cole, 214 Fed. 948.) It may be said in passing that if conceding appellant was negligent, appellee was also negligent, and the verdict was as large as the injury warranted in the absence of the statutory provision requiring it to be diminished.

The inquiry is whether, under the evidence most favorable to appellee, there is shown any failure of appellant’s servants, the trainmen, to perform any duty owed him; whether, under ordinary circumstances, a railroad company owes a duty to its section hands employed to keep- the roadbed in order and safe to warn them of the approach of trains that are running in the ordinary manner and on the usual time at points in the country where the trainmen have no other reason to anticipate their presence than the fact that they may be found working at various places.

Cases are numerous dealing with the duties of railway companies to persons rightfully on their tracks, as they may be under a variety of conditions other than that here presented; as for instance, at stations, approaches to stations, and places where workmen are engaged in bridge building or other construction work. Different considerations govern different situations. There is a class of cases dealing entirely with the duty of railroads to their section men, and some conflict of authority in other jurisdictions in part reconciled by the different facts under consideration when apparently conflicting rules were announced.

Our Supreme Court in Illinois Cent. R. Co. v. Modglin, 85 Ill. 481, held in case of an injury to an employee using a hand car on a track of the railroad company, that there was not the least ground on which to base a charge of negligence of the railroad company, because he knew perfectly well what he was required to do when he used the hand car, and that his hand ear was subservient to trains and had to give them the Road; that he knew perfectly well the movements of the train that injured him and knew what time it would pull over the track. It was there charged that no whistle was sounded and the court said the law did not require the train to sound a whistle at that spot, but suggested that it would be inclined to hold a railroad company knowing or having reasonable grounds to believe there was a person on the track, or in danger of a collision, guilty of negligence if sounding the whistle or slacking the speed of the train would prevent accident. We are cited to no later opinion of that court and have found none. This court in Chicago & N. W. Ry. Co. v. Thomson, 128 Ill. App. 594, 597, said that the proof showed section men were required to look out for all trains running on their section; they were required to look out for themselves and trains in all directions at all times, and added: “It is manifest that the commercial needs of the country would not be answered by a railroad on which trains were required to look out for all men working on and about the track and to run slowly enough and have trains under such control as to avoid injuring them if they get on the track in front of an advancing train. ’ ’ And in Dempsey v. Chicago, R. I. & P. Ry. Co., 168 Ill. App. 281—a case of injury to a section hand familiar with the tracks and the operation of trains there and the rules of the defendant that section men should look out for trains and keep out of their way—that the defendant was not liable to the plaintiff and there should have been an instructed verdict. The Appellate Court of the Third District (opinion by Mr. Justice Wright), Chicago & A. R. Co. v. Wild, 109 Ill. App. 38, reversing a judgment without remanding in a case of injury to a section man working on the track, said: “The master was not bound to run the train as if expecting the track to be occupied by the hand car, it being well known to all that it is the business of the section men to watch for and keep out of the way of all trains. * * * Neither was the master bound to foresee the occurrence of fog, and provide a special warning or signal.” The opinion discusses the case as one of assumed risk, but in the finding of fact it is recited “that appellant is not guilty of the negligence charged in the declaration.” In Fritz v. Wabash R. Co., 181 Ill. App. 18, 21 (Third District), dealing with a condition similar to the one in the present case, the court said: “Deceased was not killed at a place where the law required defendant to ring a bell or sound a whistle; and defendant is not required to ring a bell or sound a whistle while proceeding along its track for the purpose of informing employees who are engaged in the repair of its tracks of the approach of a train.”

There is a note in L. R. A. 1916 F 564, limited to the subject of the duty of a railroad company to maintain a lookout for employees of the class known as section men. The author says the rule seems to be as indicated in Leighton v. Wheeler, 106 Me. 450, that the engineer in charge of a railroad train does not owe to the section men of the road the duty to maintain a lookout for their presence on the track, but that the rule is limited to places where trainmen have a right to expect a clear track. That under ordinary circumstances no such duty exists is held in Chesapeake & O. R. Co. v. Lang’s Adm’x, 135 Ky. 76, 121 S. W. 993; and Degonia v. St. Louis, I. M. & S. R. Co., 224 Mo. 564, 123 S. W. 807. In Nivert v. Wabash R. Co., 232 Mo. 626, 135 S. W. 33, there is assumed an established rule in that State .that the agents and servants in charge of railway trains owe no duty to look out for the safety of trackmen and section hands. In the Begonia case, supra, it is held that the fact of section hands being scattered along the railroad tracks from one station to the other so that they might be found at any point does not deprive the railroad company of the right to rely upon a clear track, and this for the reason that such employees are bound to look out for their own protection. The same rule is recognized in Cincinnati, N. O. & T. P. R. Co. v. Swann’s Adm’x, 160 Ky. 458, L. R. A. 1915 C 27. Also O’Brien v. Erie R. Co., 210 N. Y. 96, 103 N. E. 895. In Blankenship’s Adm’r v. Norfolk & W. R. Co., 147 Ky. 260, 143 S. W. 995, the court said: “From the very nature of the case it would be unreasonable and impracticable, as well as unnecessary, to undertake such a duty.” In Land v. St. Louis & S. F. R. Co., 95 Kan. 441, 148 Pac. 612, it was said that to require a lookout for section men would interfere with the operation of trains and impede their progress. Aerkfetz v. Humphreys, 145 U. S. 418, is to the effect that no such duty exists. Also New York, N. H. & H. R. Co. v. Pontillo, 211 Fed. 331. The Supreme Court of Missouri in an early case had held that the trainmen were under a duty to notify section men of their approach, but in Ginnochio v. Illinois Cent. R. Co., 155 Mo. App. 163, the court says it seems that the more recent decisions of our Supreme Court adopt the view of the Supreme Court of the United States recited in Aerkfetz v. Humphreys, 145 U. S. 418, and the Supreme Court of Massachusetts in Riccio v. New York, N. H. & H. R. Co., 189 Mass. 358, to the effect that because of the peculiar nature of the employment the railroad owes no duty to the section hand other than to avert his injury after the engineer has actually seen his perilous situation. A great number of cases have arisen under facts similar to those in the present case, and, as before said, there is some conflict, but the great weight of authority outside of this State is to the effect that in the absence of knowledge or notice of danger the train crew owes no duty to the section man to warn him of its approach or to keep the train under control to avoid injuring him, and the decisions of our State above noted show our courts in accord with that doctrine. There is nothing extraordinary about the circumstances of this case. There was a curve of the road and perhaps a high growth of weeds obstructing the view. But railroads are often operated in places where there is no extended view of the track because of the lay of the land, obstacles thereon, or fog or steam. The court said in Land v. St. Louis & S. F. R. Co., supra: “Practically, if it were-incumbent upon the engineer to modify the speed of a train whenever passing through fog or steam in order to avoid collision with the section men, the service demanded and deserved by the public could no longer be assured. Trackmen are employed for the very object of enabling the road to furnish such service and cannot require the employer to impair its efficiency by acting as watchman for them. ’ ’ In such instances the condition is well known to the trackman, and in the exercise of ordinary prudence he may be presumed to exercise the required vigilance and keep out of the way of approaching trains. While in this case his care or want of care is not in and of itself controlling, still, in considering whether the train crew was negligent, it is fair to assume, as has been said in many cases, that they might reasonably presume the trackman would act on the ordinary instincts of human nature in avoiding danger and injury.

The evidence impresses us with the belief that the view was not so much obstructed as appellee claims, and that he was seen by the engineer and fireman and timely warned of his danger and disregarded the warning. But there was sufficient conflict of evidence on that question to forbid the trial court directing a verdict on that ground, and we .would hesitate to reverse without remanding if appellant’s defense rested entirely on that theory of the case. We have therefore considered and discussed the condition as presented by appellee’s testimony and conclude that even on that theory of the facts the negligence charged in the declaration was not proven. The judgment is reversed.

Reversed with finding of fact.

Finding of fact. We find that the defendant was not guilty of any negligence charged in the declaration.


text:
    New York Life Insurance Company v. M. Martha Hughes, Appellant. Samuel Hughes, Administrator, Appellee.
    Gen. No. 6,506. (Not to he reported in full.)
    Appeal from the Circuit Court of Lee county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed February 12, 1918.
    Statement of the Case.
    Bill of interpleader by New York Life Insurance Company, a corporation, complainant, against M. Martha Hughes and Samuel Hughes, administrator of the estate' of Elmer Hughes, deceased, defendants, over the proceeds of a policy issued by complainant to the deceased in his lifetime, payable originally to the executors and assigns of the deceased, the defendant M. Martha Hughes claiming as assignee. From a decree in favor of the administrator, the other defendant appeals.
    Abstract of the Decision.
    1. Evidence, § 442

      —necessity of foundation for opinion as to sanity. Nonexperts should state facts on which an opinion of a party’s sanity might reasonably be based before being allowed to express an opinion on that question.
    2. Insurance—when evidence shows insured to he of unsound mind at time of execution of assignment of life policy. Evidence held sufficient to warrant a finding that insured was of unsound mind at the time he executed the assignment of a life insurance policy, on a bill of interpleader by the insurer to determine the right to proceeds of the policy.
    3. Appear and error, § 1241*—when assignee of life insurance policy may not complain of improper instruction. The assignee of a life insurance policy was not in position to complain that the trial court instructed at the instance of an adverse claimant of the proceeds of the policy on the issue whether insured was under undue influence at the time he executed an assignment of the policy, on the ground that there was no evidence on that issue, where the assignee had asked instructions on the same issue, and there was in fact evidence requiring the submission of such issue to the jury, on a bill of interpleader by the insurer to determine the right to proceeds of a life insurance policy.
    Complainant paid the amount of the policy into court, and decree was entered discharging and releasing it from all liability on the policy. There was a written request for change of beneficiary signed by the deceased.
    H. A. Brooks and W. H. Winn, for appellant.
    Harry Edwards and Henry C. Warner, for appellee.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.


text:
    Margaret Johnson, Administratrix, Appellee, v. Chicago Surface Lines. Chicago Interurban Traction Company et al., Appellants.
    Gen. No. 6,508. (Not to be reported in full.)
    Appeal from the Circuit Court of Kankakee county; the Hon. Arthur W. Deselm, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed February 12, 1918.
    Statement of the Case.
    Action by Margaret Johnson, administratrix of the estate of Boy B. Johnson, deceased, plaintiff, against Chicago Surface Lines, Chicago Interurhan Traction Company and others, defendants, to recover damages for the death of the deceased due to an automobile in which he was riding being struck by defendants ’ interurban street car. From a judgment for plaintiff for $9,500, defendants appeal.
    The deceased, a resident of Dixon, Illinois, while visiting his brother-in-law in Chicago, was invited on the evening of November 25, 1915, by one Vernon C. Naugle, an undertaker, for-a ride with a friend in Naugle’s seven-passenger limousine, which he had owned for several years and operated himself, and he was an experienced driver, familiar with the part of the city in which they went.
    J. B. Guilliams and W. B. Hunter, for appellants.
    Novak & Novak and Dyer & Whittemoke, for appellee.

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

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 1712 —when assignment of error is abandoned. An assignment of error not covered in brief and argument is abandoned.

2. Street railroads, § 140*—when instruction not erroneous as referring jury to declaration and authorizing recovery on proof of one count. An instruction held not erroneous in referring the jury to the declaration and informing them that plaintiff was entitled to recover if she had proven any one count, where the count particularly objected to alleged due care on the part of plaintiff’s intestate while he was on a certain street, upon which he was when the automobile in which he was riding was struck by defendant’s interurban street car, which included the time before he rode upon defendant’s tracks as well as the time while he was there and injured, in an action to recover damages for intestate’s death.

3. Appeal and error, § 1540*—when instruction referring jury to declaration is harmless error. It is not reversible error by an instruction to refer the jury to the declaration to determine the issues where there is no had count in the declaration and there is proof tending to support the allegations in each count.

4. Street railroads, § 131*—when evidence shows due care on part of occupant of automobile hilled in collision with street car. In an action against an interurban railroad company to recover for the death of a passenger in an automobile struck by one of defendant’s cars, evidence held sufficient to warrant the finding that plaintiff’s intestate exercised due care while riding in the automobile at the invitation of the owner and driver thereof, where he was from the country, probably unfamiliar with the streets and location, and the owner and driver was a resident of the vicinity and had long experience as a driver and acquaintance with his surroundings, and there was nothing in the situation to prompt a prudent, sensible man to interfere with the operation of the car by its owner or attempt to control him in crossing intersecting streets or in other places of more or less danger.

5. Street railroads, § 131*—when negligence of street railroad in colliding with automobile and hilling occupant is shown. Evidence held sufficient to sustain finding of defendant’s negligence and plaintiff’s intestate’s due care, in an action to recover damages for the death of such intestate, in a collision between defendant’s interurban car and an automobile in which deceased was riding.

6. Appeal and error, § 1256*—when defendant may not complain of the refusal of instructions. The defendant street railroad was not entitled to he heard to complain, after securing the giving of an instruction in effect that a passenger in an automobile who was killed by the automobile being struck by defendant’s street car should have exercised that degree of care which the law required of the driver, that the court refused other instructions asked by defendant as to the degree of care required of a passenger which were correctly drafted and less helpful to defendant than "the one given.

7. Appeal and berob, § 1543 —when giving of erroneous instruction on credibility of witness is harmless error. An instruction that “one credible witness may be entitled to more weight than the testimony of many others, if, as to those other witnesses, you have reason to believe, and do believe from the evidence and all the facts before you, that such other' witnesses have knowingly testified untruthfully and are not corroborated by other credible witnesses or by circumstances proved in the case,” was bad, but giving of same was not reversible error where there was no contrariety of testimony on any controlling or material fact.

8. Appeal and ebbob, § 1491*—when exclusion of evidence as to reason why witness failed to appear is harmless error. The exclusion by the court of defendant’s offer, in the presence of the jury, to show that the motorman of defendant’s car, who failed to appear as a witness for defendant upon defendant’s subpoena and fees tendered, said when he refused to attend that his mother was dead and was to be buried that afternoon, was not prejudicial error.


text:
    James O’Meara, Appellee, v. Crane Company, Appellant.
    Gen. No. 6,528. (Not to be reported in full.)
    Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldbedge, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed February 12, 1918.
    Statement of the Case.
    Action by James O’Meara, plaintiff, against Crane Company, defendant, before a justice of the peace to recover damages for injuries to plaintiff’s two horses loaned to one Miss A. L. Preston, claimed to be conducting a sanitarium for defendant. From a judgment for the plaintiff for $200 on appeal from a like judgment, defendant appeals.
    Abstract of the Decision.
    Corporations, § 355

      —when evidence shows corporation to he bailee of horses. Evidence held sufficient to warrant the finding that the defendant company was bailee of plaintiff’s horses, in an action to recover damages for injuries to them while loaned to a person whom plaintiff claimed was engaged in conducting a sanitarium for defendant, as against the latter’s contention that the sanitarium was not conducted by it, hut by a third person who furnished all the funds and who employed the person upon whom process was served, similar transactions previously having been recognized as company business and no objection having been made that the person on whom process was served was not an officer of the company.
    Summons was returned served on the corporation by leaving a copy with A. L. Preston, superintendent, other officers, naming them, not found in the county. The corporation appeared and defended on the merits without objecting to the service on the ground that A. L. Preston, superintendent, was not an officer of the corporation, but offered evidence that A. L. Preston was employed by one E. T. Crane, Jr., and not by defendant.
    Cornelius Beardon, for appellant.
    Butters & Clark, for appellee.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.