text:
    Royal Smith, Appellee, v. William E. Tappen, Appellant.
    Gen. No. 6,442.
    1. Pleading, § 409

      —what not put in issue hy plea of general issue. A plea of general issue in an action to recover damages for injuries sustained by plaintiff being run over by an automobile alleged to have been owned by defendant and operated by his minor son, held not to put in issue defendant’s ownership and operation of the car.
    2. Automobiles and garages, § 3*—when denial of motion for leave to file plea is proper. A motion at close of the evidence, in an action to recover damages for injuries sustained by plaintiff by being run over by an automobile alleged to have been owned by defendant and operated by his minor son, for leave to file a plea denying defendant’s ownership of an automobile of a certain make, held properly denied where the declaration did not allege that the automobile was of such make although some of plaintiff’s witnesses so spoke of it and defendant proved it was of another make, as such issue was immaterial.
    3. Appeal and error, § 1306

      —when presumed that court refused to permit filing of plea because not in proper form,. Where a plea presented with motion for leave to file same was not preserved in the bill of exceptions, held that it would be presumed that the court refused to permit it to be filed because it was not in proper form.
    4. Automobiles and garages, § 3*—when evidence shows negligent injury by automobile. Evidence held sufficient to warrant a finding of defendant’s negligence, in an action to recover damages for personal injuries by being run over by an automobile.
    5. Automobiles and garages, § 3*—when responsibility of father for negligent operation of automobile by son is shown. Evidence held sufficient to warrant the finding of defendant’s responsibility for his minor son’s negligence in operating defendant’s automobile, which he bought and kept for family use, where he permitted his son to have access to the place where it was kept and- knew his son often used it and took no steps to prevent it.
    6. Instructions, § 106*—when instruction that no inference can be drawn against defendant not producing toitness is properly refused. An instruction that no inference could be drawn against'defendant from his failure to call as a witness his minor son, whose alleged negligence in the operation of defendant’s automobile caused the injuries to plaintiff, because of which an action .to recover damages was brought, held properly refused.
    7. Damages, § 211*—when instruction as to lack of evidence of permanent disability is property refused. An instruction that there was no evidence of permanent disability of plaintiff and that the jury had no right to guess that there may be such disability in view of the lack of testimony on that point, in an action to recover damages for personal injuries, held properly refused where the evidence showed that plaintiff was run over by defendant’s automobile and the wheels on one side seemed to have passed over his head, and that he was afflicted up to the trial with a lack of memory, and there were several circumstances from which the jury might infer permanency of injury.
    Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed August 7, 1917.
    Garnsey, Wood & Lennon, for appellant.
    O’Donnell, Donovan & Bray, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

Plaintiff was run over by an automobile driven by defendant’s minor son on a public highway a short distance west of the City of Joliet, and brought this suit to recover damages for the injuries inflicted upon him thereby. The case was tried upon an amended declaration and additional counts and pleas of the general issue to each, and there was a verdict and a judgment for plaintiff for $700, from which defendant appeals. The sum awarded was very moderate compensation for the injuries received. Defendant contends that the proof does not show that the injuries were inflicted by his car; that if it was his car, the proof does not show that his son was negligent in its operation, and that he is not responsible for the negligence of his son.

Defendant is not in a position to question his ownership and control of the car which inflicted the injury. His only plea was the general issue. The declaration averred in many ways that defendant owned and possessed the car which inflicted the injury, and that it was being operated by his son, agent and servant, for the pleasure of a member of his family. The plea of the general issue did not put in issue his ownership and operation of the car. This is stated in Pell v. Joliet, P. & A. R. Co., 238 Ill. 510, and Brunhild v. Chicago Union Traction Co., 239 Ill. 621, and in cases there cited. This rule was qualified in Clark v. Wisconsin Cent. Ry. Co., 261 Ill. 407, but was reaffirmed in Carlson v. Johnson, 263 Ill. 556, where the first syllabus summarizes what is there held as follows:

“The occupation, ownership or operation of the property or instrumentalities which are set out as connected with or as the cause of the injury, or the character in which the parties appear in the litigation, are matters of inducement, which are not put in issue by a plea of the general issue.”

But defendant says that at the close of the evidence he asked leave to file a special plea to deny the ownership of the automobile and to deny that he had under control, either by self or family, on the day of the accident, such an automobile as is described in this case, and that the court denied that request, and erred in that ruling. This is not what he requested, nor what the court denied. The bill of exceptions shows that at the close of the evidence defendant’s counsel asked leave to file a special plea denying the ownership of a' Ford automobile, and this was what was denied, and all that was denied. This would have raised an immaterial issue, for the declaration did not charge that the machine in question was a Ford automobile. What was aimed at was this. Some of plaintiff’s witnesses called this a Ford car. Others did not. One witness said he afterwards heard it was a Ford car, but he would not swear to it. Defendant proved that his car was a Buiclc. At the time of the accident no one discussed the style or character of the car. All were concerned with the injured child and in getting him out of the street and getting defendant’s son to take him with another person to a hospital. The bill of exceptions shows that defendant’s son, who drove this automobile, was in the court room at the commencement of the hearing of proofs and he was not called as a witness. The bill of exceptions shows that the proposed plea was presented with the motion. It is not preserved in the bill of exceptions. We must presume that the court refused to permit it to be filed because it was not in proper form. It-is also clear from the evidence that defendant’s son was driving defendant’s car, and that those of plaintiff’s witnesses who undertook to name defendant’s car were simply mistaken in calling it a Ford.

Plaintiff was 5 years, 4 months and 13 days old at the time of the injury and therefore no negligence could be imputed to Mm. Defendant’s car was being driven east on a much traveled highway, called the Troy road. A short distance outside of the City of Joliet some telephone men were trimming trees on the south side of the Mghway and had a wagon in the highway. Defendant argues the case here as if plaintiff ran out from behind this wagon just in front of this car. There is proof from which this can be inferred, but there is other proof that there were several little boys around there and that plaintiff was 200 or 300 feet east of the wagon and was standing in the middle of the road, looking east for his father when he was struck, and for 2 or 3 minutes before that, and also that the driver of the car was not looking ahead but was watching the operation of trimming the trees. The jury were warranted from the evidence in finding him negligent.

Defendant bought and kept this ear for the use of himself and his family, which consisted of himself and wife and this son. The son often drove the car. The defendant testified that he had given the son orders not to use the car except by his express permission, and that he had not given his consent on this occasion; but there was evidence that the son often ran it alone, and also with Ms father and mother and others in the car, and we think it clear the father knew it and did not prevent it. The son had access, in his father’s absence and with his father’s permission, to the private garage where the father kept the car. There was proof .of a conversation some time after this accident between the father and a brother, of plaintiff and the defendant. It is argued that this was in an effort to obtain a settlement and therefore was inadmissible. Plaintiff’s father and brother did testify that they went to defendant’s house by appointment for the purpose of trying to get a settlement, but they were called upon to state what was there said and it did not appear that anything concerning a settlement was mentioned in the conversation. Apparently defendant said his son was not to blame and that it was an accident, and no effort for a settlement was made. The proof is that in that conversation defendant said that his son ran the car; that he was the family chauffeur and frequently took them out driving. Defendant did not deny that conversation. The question of the liability of a father for the negligence of a child while running the father’s automobile has been discussed in a number of recent cases. In Marshall v. Taylor, 153 S. W. 527 [168 Mo. App. 240, 6 N. C. C. A. 313], the Kansas City Court of Appeals held as follows, according to the third syllabus preceding the opinion: “Where an automobile was provided by a father for the use of members of his family, and an adult son was chauffeur for them, and was permitted to use the car for his own pleasure, the son was an agent of the father, though using the car for his own pleasure.” In Hays v. Hogan, 165 S. W. 1125 [180 Mo. App. 237], the Court of Appeals of Springfield, Missouri, held as follows, as stated in the fourth syllabus: “Where an adult son, living with his father as a member of the family, used the father’s automobile, purchased for general family use, with the father’s express or implied consent, on a trip purely for his own pleasure and in no way connected with any business of the father, the relation of master and servant existed, and the father was liable for the death of plaintiff’s husband, caused by the negligence of the son in so operating the car.” In Kayser v. Van Nest, 125 Minn. 277, 146 N. W. 1091, 51 L. R. A. (N. S.) 970, the Supreme Court of Minnesota said:

“Defendant’s daughter, while operating the car by his authority and upon his business, was defendant’s servant within the meaning of the rule, and he was responsible for her acts to the same extent that he would have been responsible for the acts of any other servant. Defendant might properly make it an element of his business to provide pleasures for his family; and, as the car was intended for the use of the members of the family for purposes of pleasure as well as for other purposes, and the daughter had authority to take it and operate it for such purposes, it was at least a question for the jury whether, at the time of the accident, she was not the servant of defendant and engaged upon the business of defendant.”

This was preceded by the statement that if the person operating an automobile was not the servant of its owner nor engaged in its owner’s business, the owner would not be responsible for the negligence of the person operating it. This subject has been discussed at large in McNeal v. McKain, 33 Okla. 449, 41 L. R. A. (N. S.) 775, in Birch v. Abercrombie, 74 Wash. 486, 50 L. R. A. (N. S.) 59, and in the notes to said cases. ' Under these authorities and the evidence in this case we are of opinion that the jury were warranted in holding defendant responsible for the negligence of his son in operating this car. This defendant owned a vehicle which could be driven on crowded streets and busy thoroughfares with great speed at great risk to the lives and property of others; he bought it and kept it, not merely for his own use, but also for the comfort and pleasure of his family; he permitted his minor son access to the place where it was kept, when he was absent; he knew his son often used it and took no steps to prevent it; and it was being used by the son for his own pleasure when the son’s negligent manner of running it caused the injury. A father is not liable for his minor son’s torts merely because of the relationship. But where he has furnished an agency of this kind for his minor son’s use and has permitted such use, and the son is negligent in such use, and inflicts an injury thereby, the father ought to lie held responsible. Any other rule would leave the injured party without a practical remedy. The father by furnishing his minor son with this agency and permitting its use has made himself responsible. There are cases not in harmony with the foregoing rule, but we conclude we ought not to follow them.

It is urged that the court erred in refusing two instructions requested by defendant. The first was to the effect that no inference could be drawn against defendant from his failure to call his son as a witness. Naturally the plaintiff should not be required to call the defendant’s son who was accused of having negligently caused the injury. He was a member of the family of the defendant and would be interested in sustaining defendant’s contention that the car was not negligently driven. The instruction was improper under 2 Chamberlayne on the Modern Law of Evidence, sec. 1075, where the rule is thus stated: “In proportion as it is to the interest of the party to submit the evidence of an available witness, the jury are entitled to infer from his neglecting to do so that his evidence, if produced, would not be favorable to the party.” To the same effect is Jones on Evidence (2nd Ed.) sec. 19. The second instruction referred to was to the effect that there was no evidence of a permanent disability, and the jury had no right to guess that there may be such disability in view of the lack of testimony on this point. The little boy was entirely run over by the automobile and the wheels on one side seem to have passed over his head, and up to the time of the trial he was afflicted with a lack of memory. There are several circumstances in evidence from which the jury might infer the permanency of the injury. The court properly left that question to the jury.

We find no reversible error in the record and the judgment is therefore affirmed.

'Jjffirmed.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    Frank C. Strickland et al., Appellees, v. Chester A. Sankiewicz, Appellant.
    Gen. No. 6,444.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1122

      -—when case dismissed because of defective abstract. Where an abstract fails to contain process, pleadings, interlocutory order, judgment, prayer or order of appeal, leave to file bill of exceptions, appeal bond, or the first part of bill of exceptions, the appeal should be dismissed.
    2. Debt, Action op, § 17*—when judgment is improper in form. A judgment, in an action of debt, for both debt and damages and costs and that plaintiff have execution therefor is erroneous, and should be that debt be satisfied upon payment of damages and that execution issue only for damages and costs..
    3. Costs, § 68*—when of appeal should be taxed against appellant. Costs of appeal should be taxed against appellant where the judgment is reversed on the record and pleadings and judgment are not abstracted.
    Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the' April term, 1917.
    Reversed and remanded with directions.
    Opinion filed August 7, 1917.
    Statement of the Case.
    Action by Frank C. Strickland and others, plaintiffs, against Chester A. Sankiewicz, defendant. From a judgment for plaintiffs for $766.66 debt and $416.66 damages, defendant appeals.
    P. L. Jorgenson, for appellant; Max Przyborski, of counsel.
    Stephen H. Kennedy, for appellees; Elam L. Clarke, of counsel.

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

   Mr. Justice Dibell

delivered the opinion of the court.


text:
    Susie McDonell, Appellee, v. Lake Erie & Western Railway Company, Appellant.
    Gen. No. 6,451.
    1. Railroads, § 733

      —when evidence shows negligence in setting fire obscuring view of train by one approaching crossing. Evidence held to warrant a finding that defendant’s servants set. fire to grass and weeds near defendant’s railway and that the smoke therefrom obscured the view of an oncoming train by a person approaching the crossing where plaintiff was injured, in an action to recover damages for injuries from being struck by defendant’s train.
    2. Railroads, § 735*—when evidence shows negligence in not giving signals on approach to crossing. Evidence held sufficient to warrant a finding that defendant was negligent in not giving the statutory signals in the approach of its train to the crossing in question where plaintiff, the driver of an automobile, was injured, in an action to recover damages for injuries from being struck by defendant’s train.
    3. Railroads, § 738*—when evidence shows driver of automobile injured-at crossing was not guilty of contributory negligence. Evidence held sufficient to warrant the finding that plaintiff, the driver of an automobile, was not contributorily negligent in approaching the crossing where she was injured by being struck by defendant’s train, in an action to recover damages for such injuries.
    4. Evidence, § 410*—when testimony of physician as to result of examination of injured person is proper. Testimony by a physician who had examined plaintiff, in reply to a question as to her physical condition upon his examination, that he found her suffering' from nervous shock was proper.
    5. Evidence, § 365*—what is proper testimony by nonexpert witness. A nonexpert witness may testify to such indications as are evident to common observation, as that plaintiff was very nervous.
    6. Automobiles and garages, § 6*—when verdict not excessive for injuries to person and to automobile. A judgment for $1,400 held not excessive for injuries to plaintiff and to her automobile, where her injuries were serious and permanent and the automobile, valued at $300 before the accident, was practically worthless thereafter.
    7. Railroads, § 766*—when instructions in action by driver of automobile for personal injuries are not misleading. Instructions reviewed and held that the jury could not have been misled therefrom into believing from them that no care was required of plaintiff except while she was upon the" railroad track, in an action to recover damages for injuries from being struck by defendant’s train while plaintiff was driving her automobile over a crossing of defendant’s tracks.
    8. Damages, § 207

      —when instruction on determination of is not erroneous. An instruction that to enable the jury to estimate the amount of damages to the plaintiff for injury to her person, if any, it is not necessary that a witness should express an opinion as to the amount of the damage, held to be proper in an action to recover damages for personal injuries.
    9. Automobiles and garages, § 6*—when instruction on measure of damages for negligent injury to automobile is correct. An instruction that the rule of damages for injuries to personal property from a defendant’s negligence is the difference between its fair cash market" value before it was injured and its fair cash market value after it was injured, held to be proper, where the declaration alleged total destruction of an automobile, and the evidence showed its value before being injured was $300 and after being injured, $25, and that it was practically a wreck, requiring rebuilding instead of repairing to restore its usefulness.
    Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed August 7, 1917.
    Stevens, Miller & Elliott, for appellant; John B. Cockrum, of counsel.
    Clarence W. Heyl and Harry C. Heyl, for appellee.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

Susie McDonell, a teacher, was driving from her home to her school in an automobile known as a Saxon runabout, and while driving in a southerly direction upon a public highway and crossing the line of the Lake Erie & Western Railway at a place known as Burrough’s Crossing, her automobile was struck by a freight train consisting of an engine, caboose and 6 freight cars running east on said railroad, and she and her automobile were injured. She brought this suit ag’ainst the company operating said road to recover damages for said injuries. There was a jury trial, a verdict and a judgment for $1,400, from which defendant below appeals. Each count alleged that plaintiff was exercising due care, and that the automobile was destroyed. The first count of the declaration charged the defendant with improperly driving and managing said locomotive and train; the second charged a failure to give the statutory signals; the third alleged that defendant permitted dry grass and dead vegetation on the right of way on both sides of the tracks near said crossing to burn and to cause great clouds of smoke to arise at or near said crossing on both sides of the right of way, and to extend in both directions from the crossing, and to thereby obstruct the view of the railroad and track in either direction, and to obstruct the view of persons approaching said crossing; and that defendant negligently and recklessly drove said locomotive and train upon said crossing without warning. Each count- averred the injuries to the plaintiff and to her car.

Appellant contends that the proof does not show that its servants were negligent. That there was much smoke at that crossing is clear from the evidence, and also that this smoke came from the burning of dead grass and dry weeds on the south side of the railway. It was a disputed question of fact whether defendant’s servants set these fires, and whether the smoke was sufficient upon the crossing to obstruct the view of approaching trains, but we are of opinion that the jury were warranted in finding from a preponderance of the evidence that the defendant’s servants did set the fire and that the smoke did obscure the view of a train approaching from the west, by a person crossing the railway from the north. There was testimony by several witnesses that no signal was heard from the advancing train. There was other proof that a signal was given by a whistle, or 4 whistles, 80 rods from the crossing. It is not contended that the whistling was continued from that place until the crossing was reached. It is contended by defendant that an automatic bell was rung the entire time while the engine was approaching the crossing from 80 rods away. This was denied by several witnesses for the plaintiff. We conclude from the evidence that the jury were warranted in finding that the bell was not rung while said train was traveling from the whistling post to the crossing. Therefore the jury were warranted in finding that the defendant was negligent in not giving the statutory signals.

It is contended that appellee was guilty of contributory negligence in driving upon the crossing. As she approached the crossing there were numerous obstacles to her view to the west, such as buildings and shrubbery, but when she had passed those the proof was clear that she stopped from 50 to 75 feet from the crossing and looked both ways and listened, and she testified that she did not hear any signal or see any sign of an approaching train, and that she then drove on. Certain section men standing south of the crossing testified that they signaled her to stop. She testified that she saw those men, but they gave her no signal. If the jury believed her, she was not guilty of any negligence. The smoke did not interfere with her hearing an engine bell or whistle, nor necessarily charge her with negligence (Chicago & N. W. Ry. Co. v. Hansen, 166 Ill. 623), and she had a right to assume that if a train were approaching, defendant’s servants in charge thereof would give the statutory signals. Rosenthal v. Chicago & A. R. Co., 255 Ill. 552, and cases there cited. We think it unnecessary to burden this opinion with a recital of the testimony of the different witnesses bearing on the question of defendant’s negligence and plaintiff’s exercise of due care.

A physician who examined plaintiff was asked as to her physical condition upon his examination, and he stated that he found her suffering from nervous shock. We are of opinion that this was proper testimony to be given by a physician qualified as an expert. A non-expert witness was permitted to testify that plaintiff after the accident was very nervous. We see no impropriety in permitting that testimony to go to the jury. A nonexpert witness may testify to such indications as are evident to common observation (Jones on Evidence, 2nd Ed., sec. 366). Besides, the fact was also proved by a physician, and it was not disputed.

It is urged that the damages are excessive. The question of the damages to the.automobile will be discussed in another connection. We are of opinion' that the sum awarded plaintiff for her personal injuries was moderate. They were serious, and a medical man testified that in his opinion they were permanent.

It is urged that the court erred in its action upon several instructions. Plaintiff’s instruction No. 2 refers the jury to the negligence charged in the declaration, and it is urged that this is improper, and that the court should not have referred the jury to the declaration, but should have instructed what the issues found therein were. Assuming that this criticism at some times would be valid, defendant asked and obtained from the court similar instructions. Defendant’s first given instruction told the jury that the plaintiff must prove that the defendant was negligent as charged in some one or more counts of her declaration, and by the defendant’s ninth instruction they were told that even though they believed defendant was guilty of negligence as charged in some one or more counts of plaintiff’s declaration, yet under certain other circumstances there could be no recovery; and to the same effect is the defendant’s first modified instruction.

It is urged that the declaration confined plaintiff’s due care to the instant when she was upon the crossing, and that therefore the instruction referring to the declaration was erroneous under Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544. In that case the averment was, “while the said plaintiff with all due care and caution was then riding across the said railroad”; and the instruction was that if the plaintiff had proven his case as laid in the declaration they should find for the plaintiff. That case cites many authorities on the question of referring the jury to the declaration, some approving and others disapproving of the practice according to the circumstances of the particular case. The first count here contained the following concerning the plaintiff’s care: “While the plaintiff, with all due care and caution for her own safety, was then and there riding in said automobile across the said railroad tracks at said crossing as aforesaid upon the said public highway.” The second count said: “The said plaintiff was then with all due care and diligence for her own safety driving upon said public highway at the said crossing.” The third count said: “The plaintiff was then with all due care and caution for her own safety driving upon the said public highway at the said crossing as aforesaid.” The instructions are to be considered as a series. The second count required the plaintiff to prove “that the plaintiff was at and immediately prior to the time and at the place in question in the exercise of due care and caution for her own safety and the safety of her automobile.” The fourth instruction for plaintiff required of the plaintiff “such a degree of care and caution before and at the time of the accident in question under the circumstances and in the situation in which plaintiff was placed, so far as the same may be shown by the evidence, as an ordinarily careful and prudent person would exercise under like circumstances.” Defendant’s first given instruction required proof by plaintiff that she was in the exercise of due care and caution for her own safety. The second required proof by plaintiff that she was in the exercise of due care and caution for her own safety at and immediately prior to the time of the accident. The fifth told the jury that there was no presumption that the plaintiff was in the exercise of due care and caution for her own safety at and immediately prior to the time of the accident, but that the burden of proof on that question was on the plaintiff, and if she failed to so prove, she could not recover. The sixth submitted to the jury the question whether plaintiff in approaching or driving on the crossing in question was in the exercise of due care, and whether her want of due care contributed to the injury. The seventh told the jury that a person approaching* a railroad crossing was bound to know it was a place of danger, and that it was the duty of a traveler upon a highway approaching a railroad crossing to exercise due care and caution in approaching and crossing the same, and that if plaintiff did not exercise that care and caution and she was injured thereby or contributed to the injury of herself or damage to her automobile, she could not recover. The eighth told the jury that if the plaintiff by the exercise of due care for her own safety would have seen the train approaching the crossing and failed to exercise such care in approaching and driving* on the crossing, and thereby contributed to her injury, she could not recover. The ninth referred to the care required of her in approaching and driving on the crossing. The twelfth related to the duty of a person traveling on the highway as he approached a railroad crossing. We think it obvious that the jury could not have been misled into believing from the instructions that no care was required of plaintiff except while she was on the railroad track. Plaintiff’s given instruction No. 6 is criticised because it tells the jury that it is not necessary for a witness to express an opinion as to the amount of plaintiff’s damages, and it is said this is not true as to her doctor’s bills, which must be proved by positive testimony. They were so proved in this case, but also the instruction is not worded exactly as the argument assumes. It tells the jury that “to enable the jury to estimate the amount of damages to the plaintiff for injury to her person, if any,” it is not necessary that the witness should express an opinion as to the amount of the damage, and this is well-settled law.

It is argued that modified instruction No. 4 for the defendant was so worded as to cause the jury to understand that in order to give the statutory signals the whistle must be sounded all the way from the whistling post, 80 rods distant, to the crossing, or that a bell of the required weight must be rung while the train is traveling that entire distance; whereas, the blowing of a whistle part of the way and the ringing of the bell the rest of the way would be a compliance with the statute. Possibly the modification was not as cautiously made as it might have been, but we are of opinion that this is too fine a distinction to have affected the jury in this case. There was nothing in the evidence from which the jury could reasonably find that the bell was rung a part of the way and the whistle was blown for another part. Obviously, from the evidence, if the whistle was blown at all, it was blown only at the whistling post, 80 rods distant from the crossing. Defendant sought to prove that the automatic bell was rung continuously the whole distance, and plaintiff’s evidence tended to show that it was not rung at all, and there was no claim by any one that the bell was rung a part only of that distance.

The seventh instruction given at the request of plaintiff stated the rule of damages as to the automobile, if the plaintiff recovered, as the difference between its fair cash market value before it was injured and its fair cash market value after it was injured. Defendant argues that this was erroneous, and that the true measure of damages is the cost of the necessary repairs.

This presents the question, What is the measure of damages recoverable by a plaintiff whose personal property has been injured by the negligence of the defendant, but not destroyed, and which can be and has been repaired? The textbooks state it as the general rale that the measure is the difference between the value of the property immediately before and immediately after the injury alleged, as stated in 13 Cyc. 149, and 8 Ruling Case Law 487, in which works cases are cited in support of that rule. It is, however, stated in each of them, with citation of authorities, that in some jurisdictions the rule of restoration is sanctioned by the courts. In this State the latter fule has been followed in numerous instances. In Travis v. Pierson, 43 Ill. App. 579 (1st Dist.), the rule is stated to be the reasonable cost of what' is necessary to repair the damage done, and a reasonable sum for the loss of the use of the property while the plaintiff is necessarily deprived of its use. To the same effect is City of Chicago v. Rust, 117 Ill. App. 427 (1st Dist.). In Peabody v. Lynch, 184 Ill. App. 78 (1st Dist.), the reasonable cost of the repairs was held to be the true measure of damages. In Lawndale Steam Dye Works v. Chicago Daily News Co., 189 Ill. App. 565 (1st Dist.), the true measure of damages was held to be the cost of the necessary repairs and the reasonable value of the loss of the use while the machine was being repaired. In Berry v. Campbell, 118 Ill. App. 646 (2nd Dist.), it was held that the correct measure of damages in such cases is the cost of making the repairs and the value of the use while the owner is necessarily deprived of it while it is undergoing repairs. In Crossen v. Chicago & J. Elec. Ry. Co., 158 Ill. App. 42 (2nd Dist.), the same rule of damages is laid down where the property can be repaired, and it is held that if the property cannot be repaired, the true measure is the difference between the market value of the property before the injury and the value of the wreckage; and that the loss of profits in conducting a business involving the labor of others is not recoverable. In Latham v. Cleveland, C., C. & St. L. Ry. Co., 164 Ill. App. 559 (2nd Dist.), the same rule was stated where the property is capable of repair, and the same rule as above where it is incapable of repair; and that in the latter case the plaintiff is not entitled to the loss of the use. To the same effect is Cooper v. Kankakee Elec. Light Co., 164 Ill. App. 581 (2nd Dist.). In Kuhn v. Eppstein, 145 Ill. App. 536 (3rd Dist,), the rule was recognized that if the injury to a building there complained of could be precisely remedied by repairs, the cost of repairing it and of restoring, it to its proper condition was the true measure of the damages; but it was held that in that case the premises were permanently inr jured and impossible of restoration, and that therefore the true measure of the damages was the difference between the market value of the property in its condition immediately before and immediately after the injury. This rule of the cost of the repairs was followed and applied in Donk Bros. Coal & Coke Co. v. Slata, 133 Ill. App. 280 (4th Dist.). In Donk Bros. Coal & Coke Co. v. Novero, 135 Ill. App. 633 (4th Dist.), a suit for injury to land and buildings, the trial court held as the rule of damages the difference between the market value of the property before and after it was injured. The Appellate Court held that as a fair measure of that depreciation would be the necessary cost of repairing the buildings and restoring them to their original condition, and as the damages awarded were within the estimate of the witnesses who testified on that subject, the judgment was affirmed. These decisions are largely based on Fitz Simons & Connell Co. v. Braun & Fitts, 199 Ill. 390, where, in the case of injury to a building damaged by an explosion of dynamite, it was denied that the proper measure of damages was the depreciation in value of the property caused by the injuries, but it was held that the cost of repairing the building and restoring it to its former condition was the true measure of damages. This was followed by City of Chicago v. Murdock, 212 Ill. 9, where the plaintiff’s building was injured by the negligence of a contractor, for whose negligence the city was responsible. The trial court instructed the jury that the proper measure of damages was the reasonable cost of repairs necessary to place the building in the condition it was in before the injury. It was held that this instruction correctly announced the law.

The difficulty presented by the instruction now under consideration arises from the fact that in the case of Peck v. Chicago Rys. Co., 270 Ill. 34, the Fitz Simons case, in 199 Ill. 390, is practically overruled, and the true measure of damages is declared to be the difference in the value of the property before and after the injury, although it is said that the loss of rental value and the cost of restoration are proper to be given in evidence as showing the damages. It seems to us, however, that there is a distinction between the class of cases decided in the several Appellate Courts above cited and the Peck case, supra, and the cases therein referred to by the Supreme Court. The Peck case related to a public improvement which was being constructed by the railways company under the authority of an ordinance of the City of Chicago, and there was no claim that there was any negligence which caused the injury, and the case was governed in principle by the rule prevailing in the condemnation of property for the benefit of a municipality. The Fits Simons case, supra, was of the same general character. In the Peck case the fact was emphasized that this was the making of a public improvement where there was no want of skill or unreasonable delay and the action of the City and appellant was not wrongful or illegal. The cases that are cited in that case are almost all of them cases of injury to real estatetiy the making of public improvements by a municipality where no negligence or improper work was alleged, and reference is there made to the cases cited in Beidler v. Sanitary District of Chicago, 211 Ill. 628. An examination of the cases cited in the Beidler case on this subject of the measure of damages will show that they are all of them either cases of injury to property by a public, improvement by or for a municipality, or they are cases where a railway company has injured property which it has not taken in the exercise of the right of eminent domain, or in doing that which it would have been permitted to do by virtue of a condemnation proceeding. We conceive that there is a marked difference between an injury by one individual to the personal property of another by negligence, and an injury to property by a municipality while making a public improvement. In, the latter class of cases there may be many things which do injure the owner of the property but which he is not permitted to recover for because it is of a kind that is suffered by all or many property owners in the vicinity similarly affected; or they are of such a character that they are of that class of damages for which the owner is not given the right of recovery. Where the matter is between individuals and grows out of negligence of the defendant, it is an invariable rule, we think, that the plaintiff shall receive actual compensation for all the injury he has suffered by the negligence of the defendant. Where the damages are fixed by the difference between the value of the property before and after the injury was inflicted, the depreciation in value must always be a mere matter of opinion, and opinion upon a subject where different witnesses must vary extremely in their views. There will be a tendency by the witnesses on one side to regard the property injured as having been worth but little before it was damaged, and by witnesses on' the other side to consider that it was worth but very little after the accident. One set of opinions will be that an automobile, for example, which has been in active use for 3 or 4 years is valuable because it can still render good. service, while experts will value it lightly because important new inventions have been added since it was made, and a person buying in the market will pay little for an old fashioned car. One side will see value in the injured part if it can be successfully repaired. The other side will see only a junk pile worth almost nothing. Where the repairs are honestly made and made only to' remédy the damage done, the cost of these repairs seems to us more likely to show what the real injury had been than to leave it to mere opinion. The cost of the repairs is an actual test, and if the property is as valuable after the repairs have been made as before the injury was inflicted, then they are a complete test of the injury which has been suffered. Sometimes, after the repairs, the property is still not as good as it was before, and then the difference between the value of the property after it has been repaired and the value of the property before the injury should be added to make up the loss. There is one other element recognized in some of the cases above cited, and that is the loss of the use.

As we have shown, each of the Appellate Courts of this State has held that the cost of the necessary repairs to personal property which has been injured by the negligence of a defendant, but can be restored to its former condition for less than the value of the property before it was injured, is the true measure of damages. We have several like cases before us at this term where that rule has been applied by the. trial courts. It would work great confusion to now change it. If the Supreme Court intended by its decision in the Peck case to fix the rule as to personal property damaged by the negligence of a defendant, it is our duty and pleasure to apply it. But the later case of Highways Com’rs Town of Burgess v. Hohmeyer, 279 Ill. 66, shows that even in a condemnation case the true measure of damages is sometimes the cost and not the difference in value before and after. We conclude that in the Peck case the court was discussing a different question, as above indicated. We are strengthened in that view by what has been said upon this subject in other jurisdictions.

In Williamson v. Barrett, 13 How. (U. S.) 101, the United States Supreme Court in a case of collision between two vessels at sea, held that the repairs were a part of the proper measure of damages, and also the loss of the use of the vessel while it was undergoing repairs. This latter question is much discussed, both in the original opinion and in a dissenting opinion by three of the nine justices. In The Granite State, 3 Wall. (U. S.) 310, it was held in a case of collision that where the injured vessel was not a total loss and was capable of being repaired and restored to her original situation, the cost necessary to such repair was not an incorrect rule of damages. In The Atlas, 93 U. S. 302, it was held that where repairs are practicable, the damages against the wrongdoer should be sufficient to restore the injured vessel to the condition in which she was at the time the injury was inflicted, citing several authorities.

In Wright v. Mulvaney, 9 L. R. A. 807 [78 Wis. 89], an action to recover damages alleged to have resulted from defendant’s vessel negligently running through plaintiff’s fish net, it was held as stated in the sixth syllabus: “The measure of damages in an action against a ship owner to_ recover damages for his running his vessel upon and partially destroying a fishing net, is the cost of repairing the net and the value of the labor required to reset it, together with the value of its use during the time it is necessarily idle,” prospective profits being excluded. In Hartshorn v. Chaddock, 135 N. Y. 116, 17 L. R. A. 426, a suit to recover for a wrongful obstruction by defendant of a watercourse, by which plaintiff’s land was flooded and personal property thereon destroyed, the court, in discussing the measure of damages, said: “Had the defendant broken a window of the plaintiff’s house, there is no doubt that the cost of completely repairing it would be the measure of damages. There are many eases of injury to real estate where the cost of repairing the injury may be the proper measure of damages. The owner is not in every case of injury to the soil, the trees or the fixtures driven to proof of the diminution in value of the estate by reason of the injury, in order to establish his damages. The rule seems to be that when the reasonable cost of repairing the injury, or, in this case, the cost of restoring the land to its. former condition, is less than what is shown to be the diminution in the market value of the whole property by reason of the injury, such cost of restoration is the proper measure of damages.” The court proceeded to state circumstances under which the diminution in value of the freehold would be the legal measure of damages, and that in many cases the rule most favorable to the defendant should be adopted. In the course of the discussion the court suggested that if the defendant had removed one yard only of land from the premises, it would be absurd to say that the diminution in value of the premises would be the measure of damages. In Anderson v. Miller, 96 Tenn. 35, 31 L. R. A. 604, the court held that the measure of damages for partial destruction of a building was the reasonable cost of restoring it so that it would be as valuable as before. In West v. Martin, 51 Wash. 85, 21 L. R. A. (N. S.) 324, an action to recover damages sustained by plaintiff because of a collision between defendant’s steamer and plaintiff’s bridge, the court held that the measure of damages for injury to a portion of the bridge was the cost of repairing it. The court held that to attempt to fix damages at the difference between the market values of the bridge before and after the injury would entail much uncertainty, and that it was not an article that could be readily procured in the market.

Whipple v. Wanskuck Co., 12 R. I. 321, was trespass for the destruction of a mill dam by the negligence of the defendant. It was held that the measure of damages was the cost of the restoration of the dam and the loss of the use of the dam and privilege, limited, however, to the time when the dam might with reasonable diligence have been rebuilt. In Marvin v. Pardee, 64 Barb. (N. Y.) 353, where plaintiff sought to recover damages for tearing down and removing his fences in the front of his lot, it was held that plaintiff was entitled to recover such sum as would, when properly expended, restore the premises to their condition before the interference therewith by defendant. In Berg v. Parsons, 90 Hun (N. Y.) 267, plaintiff sought to recover damages claimed to'have been sustained by reason of negligent blasting done in blasting out • a cellar upon premises adjacent to plaintiff. There was evidence of the amount which plaintiff paid in repairing the premises after the injury, and it was conceded that this was a reasonable and fair sum for such repairs, but it was claimed that such expenditure was not the true measure of damages. The court said that the ordinary rule was the difference between the value of the premises before and after the injury; yet defendant had suffered no injury by reason of the rule adopted in this case. In Robb v. Carnegie Bros. & Co., 145 Pa. St. 324, and in Lentz v. Carnegie Bros. & Co., 145 Pa. St. 612, it was held that the mode of estimating damages properly applicable to a case under the power of eminent domain is not ordinarily applicable to actions of trespass. In the latter case the court permitted proof of the value of the premises before and after the infliction of the injury, and this was held erroneous in that case. The court said that where nothing was taken, but an injury was inflicted, the question was what would be the cost of restoring the thing injured to its former condition, and if the cost of restoration would equal or exceed the value of the thing injured, then its value becomes the measure of the plaintiff’s damages. Zellmer v. McTaigue, 170 Iowa 534, was an action to recover damages to horse and wagon and harness due to the negligence of the defendant in carelessly driving his automobile so as to frighten the horse, who ran away. As to the injury to plaintiff’s wagon and harness, it was held that the measure of damages was the reasonable and proper charges for such repairs as were necessitated by reason of the injury to the property. In Harrison v. Kiser, 79 Ga. 588, suit was brought by the owner of a frame building for negligently making an excavation on property adjoining his and undermining his wall. The trial court charged that the measure of damages was the difference between the value of the property before and after the injury. It was held that the plaintiff, if entitled to recover, was entitled to recover whatever sum it would take to put the house in the condition it was before it was injured. In Waters v. Greenleaf-Johnson Lumber Co., 115 N. C. 648, it was claimed that the defendant had without authority cut timber off of plaintiff’s land, and had also negligently destroyed fences of plaintiff and filled up plaintiff’s ditches. It was held that as to the injury for unlawfully cutting the timber plaintiff could recover any reduction in the value of the land, and that for the unlawful obstruction of ditches he was entitled to recover the cost of removing the obstruction, and for destroying fences, the cost of replacing them. In Louisville & N. R. Co. v. Home Ins. Co. of New York, 146 Ky. 281, the suit pertained in part to a house destroyed by fire. The trial court admitted evidence of what it would cost to build a house like the one burned, and excluded evidence of the market value of the house at the time it was destroyed. It was held plaintiff was entitled to recover the loss sustained by the destruction of his house, and that it was proper to allow him to prove what it would cost to replace the house that was destroyed, and also to prove the value of the land where the house stood before it was destroyed, and its value afterwards, and that the trial court did not err; and the court cited a former case in the same court concerning the destruction of a house by fire where it was said the right of the owner as against any one tortiously destroying her house was to have her condition restored by giving her such a sum of money as would replace the destroyed tenement. In Jackel v. Reiman, 78 Tex. 588, where a fence of the plaintiff was torn down and the material removed, the court charged the jury that under certain circumstances they would find for the plaintiff in such sum as it would cost to replace the fence of like material and in the same manner as it was before it was torn down. This charge was approved. In Layton v. Sarpy County, 83 Neb. 628, a bridge for which defendant was responsible broke down and a traction engine owned by plaintiff and being driven over said bridge was precipitated into the bed of the stream and some of its parts broken and the suit was for that damage. On the trial the plaintiff was permitted to prove the cost of restoring the injured parts of the engine to their original condition so as to make it serviceable substantially as before the accident, and was not required to show the extent of the diminution in value of the property injured. It was held that if the property had been destroyed or so nearly so as to render its repair to the extent of restoring it to the use to which it was originally designed impossible or even unreasonable, the rule requiring proof of diminution of the value of the property would have been correct, but that this rule is not exclusive and is not proper under some circumstances. And it was held that the court did not err in admitting the testimony as to the cost of the restoration. McClure v. City of Broken Bow, 81 Neb. 384, was there cited as holding that it is permissible in such a case to prove the fair and reasonable cost of restoring the property to the same condition as it was in before the injury. In Harvey v. Sides Silver Min. Co., 1 Nev. 539, it was held that where the cost of repair does not exceed the value of the property such cost will usually be the measure of damages, but if the cost of restoring the property will exceed its actual value, then the value of the property and not the cost of removing the injury is the proper measure of damages for a wrongful injury. In Koch v. Sackman-Phillips Inv. Co., 9 Wash. 405, in an action for injury to plaintiff’s real estate by the wrongful act of the defendants, it was held that the general rule for damages to land, where the premises are considered as land only, is the difference in the values of the same immediately before and after the injury was done, but where the injury is slight and the cost of repair is less than the decrease in the permanent value, the cost of restoration is adopted; and that in that case, as a considerable part of the damages grew out of the destruction of fences, walks, outhouses, trees and shrubbery, the bare difference in the market value might not constitute a just measure of damages, and that it was proper in that case to charge that the amount of the recovery would be such a sum as would put the premises in as good condition as they were before the injury. In Weleetka Light & Power Co. v. Northrop, 42 Okla. 561, plaintiff owned and operated a telephone plant and defendant owned and operated a plant for the electric lighting in the town. Defendant’s wires, carrying a higher current of electricity than those of plaintiff, negligently came in contact with plaintiff’s wires and destroyed various telephones, boxes, wires, bells, etc. It was held that the case was properly tried upon the theory that plaintiff’s measure of damages was the cost of making repairs and the value of the use of her property while she was necessarily deprived thereof pending repairs.

These authorities from other States have been hastily examined and only briefly summarized, and there may be language in some of them not entirely in harmony with the rule for repairs. There are cases in several other jurisdictions which are cited as holding in conformity with the tenor of the above cases and which we have not had an opportunity to examine. It is therefore clear that there is much support outside of Illinois for the rule that the true measure of damages for injuries to personal property by the negligence or wrongful act of a defendant is the reasonable cost of the necessary repairs where the property is capable of being repaired to the advantage of the defendant. We are therefore of opinion that the question whether the court erred in giving said seventh instruction depends upon the condition in which this automobile was left by the accident. The declaration alleged in each count that it was destroyed. Proof by a man skilled in the business was that it was worth $300 before the accident and about $25 after the accident; and the description by that witness of the condition of the various parts of the car after the accident tends strongly to show that it was practically a wreck, and that it would have had to be rebuilt instead of repaired to restore its usefulness. Defendant could have introduced proof to show that it was capable of being repaired and restored to its former condition for less than the $275 indicated by the testimony for plaintiff. No such proof was introduced, and we think the court was warranted in treating the case as one where the property was totally destroyed and nothing but wreckage left. In that view of the case the court did not err in giving the seventh instruction. Upon the whole case, also, we think the damages not excessive. The judgment is therefore "affirmed.

Affirmed. *

Ms. Justice Niehaus took no part.


text:
    John J. Dillon, Appellant, v. Peoria Railway Company, Appellee.
    Gen. No. 6,457.
    (Not to be reported in full.)
    Abstract of the Decision.
    .Stbebt eailboads, § 131

      —when evidence shows contributory negligence of driver of buggy. Evidence of plaintiff alone or all the evidence held sufficient to show that he was negligent in driving his buggy directly in front of defendant’s approaching street car, which was running at lawful speed, or in not looking back before so driving, in an action to recover damages for injuries so caused.
    Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed August 7, 1917.
    Statement of the Case.
    Action by John J. Dillon, plaintiff, against Peoria Railway Company, defendant, to recover damages for personal injuries and injuries to plaintiff’s buggy from being struck by defendant’s street car. From a judgment for defendant, plaintiff appeals.
    John B. King and Leo G. Hana, for appellant.
    Page, Hunter & Page, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.


text:
    Fred Offner, Appellee, v. Fred Wilke, Appellant.
    Gen. No. 6,459.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Automobiles and garages, § 6

      —when negligence of son of defendant and lack of contributory negligence of plaintiff are shown. Evidence held sufficient to warrant a finding that defendant’s son driving defendant’s automobile was negligent in driving same so as to strike plaintiff’s automobile ■ after plaintiff had driven his automobile almost entirely out of the beaten or traveled track of the public road on which they were, so as to avoid defendant’s approaching car, and that plaintiff was not negligent in so driving his car.
    2. Automobiles and garages, § 2*—when father is liable for negligence of son in operation of automobile. Where defendant did not need an automobile in his business hut bought and used one for his family and allowed- it to be generally driven by his son, and at the time in question told his son "to take the machine to the garage but the son, without his father’s permission or knowledge, first went to another place as he was accustomed to do on such occasions, defendant was liable for his son’s negligence while so running the car.

      Appeal from the County Court of Will county; the Hon. George J. Cowing, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed with remittitur.
    Opinion filed August 7, 1917.
    Statement of the Case.
    Action by Fred Offner, plaintiff, against Fred Wilke, defendant, to recover damages to plaintiff’s automobile from a collision with defendant’s automobile. From a judgment for plaintiff for $325, defendant appeals.
    Albert H. Krusemark, for appellant.
    Hjalmar Rehn, for appellee.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

3. Automobiles and garages, § 6 —when evidence shows that repairs to plaintiff’s automobile were reasonable and necessary. Evidence held sufficient to show that certain repairs to plaintiff’s automobile after it was injured by a collision with defendant’s automobile were reasonable and necessary repairs at the reasonable and customary prices.

4. Automobiles and garages, § 6*-—when evidence shows non-necessity of sending automobile to distant city for repairs precluding recovery of expense therefor. Evidence held sufficient to show that it was not necessary for plaintiff to send his automobile, injured by a collision with defendant’s automobile, to a distant city for repairs when there was a nearer competent repair shop in plaintiff’s town, and he could not recover the expense of sending his car to such city, in an action to recover damages for such injuries.

5. Automobiles and garages, § 6*—when no recovery may be had under pleadings for loss of use of automobile while being repaired. Under a declaration claiming damages only for injuries to plaintiff’s automobile from a collision with defendant’s automobile, recovery cannot be had fo-r the loss of the use of the machine while it was being repaired, although such damage was referred to in the bill of particulars.

6. Pleading, § 328*—what is effect of bill of particulars. A bill of particulars may limit but not enlarge a claim set up in a declaration.

• 7. Pleading, § 242*—what does not constitute an amendment of declaration. Leave to amend a declaration is not an amendment.

8. Appeal and error, § 12.36*—when parties are on appeal bound by position tahen in briefs. Where both parties concede in their briefs that the rule of damages, in an action to recover damages for injuries to personal property, is the reasonable and necessary expense of repairing the property so as to restore it to its condition just before the injuries, they are bound by their position so taken.

9. Automobiles and garages, § 6*—when statement by defendant’s son is admissible as part of res gestee in action for negligent injuries. The statement by defendant’s son, about 10 minutes after the automobile driven by him had struck plaintiff’s automobile, to plaintiff a short distance from the place of the collision where defendant’s automobile had been stopped by running into a post, that he did not see plaintiff coming and that he was only going 30 miles an hour, held properly admitted as part of res gestee, in an action to recover damages for injuries to plaintiff’s automobile in the collision.


author: Mr. Justice Niehaus

text:
    The People of the State of Illinois, Defendant in Error, v. John E. Hartenbower et al., Plaintiffs in Error.
    Gen. No. 6,327.
    1. Indictment and information, § 54

      —discretion of court as to compelling election of counts and time of election. In the particular case it was held that it was entirely within the sound discretion of the trial court to compel the People, on motion of defendant, to elect under which counts of an indictment they would ask defendant’s conviction, as well as the time when such election should be required. ”
    2. Indictment and information, § 59*—what is not ground for quashing indictment. The presence in the grand jury room of a certain attorney not regularly appointed as assistant to the State’s Attorney but assisting the latter and under his direction and supervision questioning the witnesses as to certain facts of which he had special knowledge by reason of having been attorney for the receiver of the bank, the embezzlement of whose funds the grand jury were considering, but who was not present in the grand jury room at any time when the grand jury were deliberating upon the case or discussing questions pertaining to the finding of an indictment, or when any vote was taken, and who was not shown guilty of any improper conduct while so engaged or in the room, held to be insufficient legal basis for quashing the indictment.
    3. Indictment and information, § 59*—when indictment will not be quashed. That a grand jury may have heard or considered some incompetent evidence is not ground for quashing an indictment.
    4. Indictment and information, § 59*—when presence in grand jury room of abstract of testimony in bankruptcy proceedings is not ground for quashing indictment. Where there was in the grand jury room during their consideration of an indictment for embezzlement of the funds of a bankrupt bank a typewritten abstract of certain testimony which had been taken before a referee in bankruptcy, but no proof that the grand jury had any knowledge of its contents or that it was referred to or considered by them in any way, the indictment will not be quashed.
    5. Criminal law, § 194*—discretion of court as to employment of special counsel for State. The employment of special counsel to assist in prosecution of a criminal case is a matter resting in the sound discretion of the trial court.

      '6. Evidence, § 430

      —when witnesses are competent to testify as to value of assets of estate of bankrupt banking partnership. The testimony of the attorney' for a trustee and of a referee in bankruptcy and of an accountant expert, all • having special knowledge of the contents of the books, papers, accounts and assets of the bankrupt’s estate and of the" bankruptcy proceedings and able from such knowledge to give summaries from such records and proceedings concerning the transactions disclosed thereby, and to express opinions as to the value or lack of value of a large portion of the assets, held to be competent in a prosecution of the members of a banking, partnership for embezzlement from such estate.

      7. Embezzlement, § 18*—when schedules in bankruptcy proceedings are admissible in prosecution of members of bankrupt banking partnership. The schedules filed in ae bankruptcy proceeding and all it disclosed, held to be competent evidence in a prosecution of the members of a bankrupt banking partnership for embezzlement of the estate, although the proceeding was involuntary, where it was instituted and instigated by the bankrupt through the instrumentality of the petitioning creditors.
    8. Embezzlement, § 18*—what is competent evidence as to value of assets of bankrupt. Proof of what a trustee in bankruptcy realized in money from the assets within a comparatively short time after the failure, held to be competent evidence tending to show their value and their value at the time of the failure, in a prosecution of the bankrupts for embezzlement of the estate.
    9. Embezzlement, § 18*—what is competent evidence of loss of depositor in bankrupt bank at time of failure. Proof of what a trustee in bankruptcy for a bankrupt bank realized in money from the assets within a comparatively short time after the failure, held to be competent evidence tending to show the loss, if any, of a depositor on the day of the failure, in a prosecution for embezzlement . of such depositor’s money.
    10. Embezzlement, § 18*—what is evidence of value of assets of private bank at time of failure. Defendants’ acts and conduct for 2 years prior to their bankruptcy in repeatedly Resorting to questionable devices and practices to avert bankruptcy, held sufficient to throw light upon the question of the value of .their assets at the time of the failure, in a prosecution of the members of a banking partnership for embezzlement of funds of the bank.
    IT. Witnesses, § 243*—when constitutional rights of defendants in criminal prosecution are nof violated. The constitutional rights of defendants charged with embezzlement of bank funds are not violated by introduction in evidence of the bank books, papers and-documents, in the presence of the trustee in bankruptcy of the bank.

      Error to the Circuit Court of La Salle county; the Hon. S. C. Stotjgh, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed August 7, 1917.
    Rehearing denied October 10, 1917.
    A. E. Butters, Henry M. Kelly, Stead, Woodward & Hibbs and Ray E. Lane, for plaintiffs in error.
    George S. Wiley, for defendant in error; Lee O’Neil Browne, of counsel.

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

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

   Mr. Justice Niehaus

delivered the opinion of the court.

The plaintiffs in error, Jphn E. Hartenbower and George D. Hiltabrand, for a number of years conducted a bank at Tónica in LaSalle county, and transacted a regular banking business under the name of “Tónica Exchange Bank.” For about 5 years preceding its failure, the bank was in direct charge of George D. Hiltabrand. John E. Hartenbower during that time lived in Chicago, and had an office there, but kept in constant touch with the business of the bank, made frequent visits to Tónica, and at all times was a dominating factor in its management. W. J. Ebner and B. F. Hiltabrand • were employed in the bank as bookkeepers, and in the transaction of the business acted as assistants to George D. Hiltabrand, who was the cashier. The bank failed on November 14, 1913, and its liabilities at that time amounted to the total sum of $514,194.59. The proof shows that for at least 2 years prior to the actual failure of the bank it was in critical financial straights; that in order to obtain the necessary current funds, to keep the business going, plaintiffs in error had to arrange with the Continental & Commercial Bank of Chicago to have money advanced to them on their commercial paper, and other collateral which they had, to meet the drafts, which were issued by the bank in the regular course of business, and at times it became a closes question, as to whether or not they would he able to obtain in that way a sufficient supply of money to meet their current obligations; and it was because they were finally unable to raise the amount of money required that the failure was precipitated which had been impending for some time. On the day of the failure, when plaintiff in error Hartenbower realized that they were at their “wit’s end” to raise any more money, he called upon his partner, Hiltabrand, and the bookkeeper, Ebner, to come to Chicago, to talk the matter over; and that evening, according to the1 testimony of Ebner, he and Hiltabrand went to Chicago, and there met Hartenbower at his office, and the financial situation of the bank was talked over. During this conference the plaintiffs in error, together with a Mr. Lane, whom they met in Hartenbower’s office, left the office and were gone for about an hour. When they returned, Hartenbower immediately made a statement which characterized their financial condition. He said: “We cannot get any more money. We are broke, we have arranged to go into bankruptcy.” Three days afterwards, on November 17, 1913, a petition was filed by three creditors of the bank, W. E. Krieder, I. N. Bassett and J. J. Matern, to have the plaintiffs in error adjudged bankrupts. These bankruptcy proceedings were referred to Arthur H. Colwell as referee. Frank E. Ritchey became trustee and took charge of the books, papers, letters, documents and all property pertaining to the bankrupt estate. In the bankruptcy proceedings, the assets of the plaintiffs in error, which were scheduled by them in the bankruptcy proceedings at $551,648.57, were converted into money in the regular course of .the proceedings, in so far as they had any money value, but the bulk of the assets proved to be worthless; and the evidence shows that the total amount realized by the trustee was $42,751.39, and that at least 90 per cent, of the amounts on deposit in the bank was lost to the depositors.

At the June term, 1914, of the Circuit Court of LaSalle county, the plaintiffs in error were indicted. The indictment upon which they were tried contains six counts; and the offenses charged in the different counts arose out of and were parts of the same transaction. At the conclusion of the evidence for the People, the trial court, on motion of the plaintiffs in error, compelled the People to elect under which of the counts of the indictment they would ask a conviction, and the People thereupon restecj their case on the first and second counts; no error was committed by the denial of the motions previously made to compel such election. In this case, the compelling of an election was a matter entirely within the sound discretion of the trial court, as well as the time when such election should be required. Bishop on Criminal Procedure, sec. 461; Schintz v. People, 178 Ill. 324.

The charge in the first count is that plaintiffs in error, on the 14th day of November, 1913, were doing a banking business-, and received a deposit of money from Bert Phelps of the value of $64; and that at the time of receiving such deposit they were insolvent, and had knowledge of such insolvency, and that thereby the money deposited was lost to the depositor. And the second count charges that the plaintiffs in error, pursuant to a conspiracy entered into by them to cheat and defraud Bert Phelps, and to embezzle his money, while doing a banking business under the name of the Tónica Exchange Bank, received from said Phelps the sum of $64 lawful money of the value of $64 knowing at the time that they were insolvent; and that they then and there feloniously and fraudulently converted the same to their own use. Upon the trial of the case the plaintiffs in error were found guilty, and the punishment fixed by the jury was the payment of a fine of $128 and imprisonment in the penitentiary for a term of 3 years. Upon this verdict the court entered a judgment of conviction, and duly sentenced the plaintiffs in error in conformity therewith. And the case is broug'ht to this court for review by writ of error. A number of errors are assigned; only the more important ones however are discussed in the briefs and these will be considered. Much stress is laid by plaintiffs in error in their argument upon an alleged error of the trial court in overruling a motion to quash the indictment. The principal ground urged for this motion is that Lee O’Neil Browne, a practicing attorney of LaSalle county,, not officially connected with the State’s Attorney’s office, and who had been employed by certain creditors to assist in the prosecution, was permitted to be present in the grand jury room during the examination of some of the witnesses for the People, and was allowed to conduct such examination. It appears that previous to that time, Mr. Browne had been employed as attorney for the receiver of the insolvent bank involved,- to assist in the work of ascertaining and collecting the assets of the bank; and he made an investigation into the books, papers, securities and records, as well as generally of all the assets of the bank, and he had thereby become especially familiar with these matters. The State’s Attorney apparently deemed it advisable to avail himself of the special knowledge which Mr. Browne had acquired in the case to more completely and expeditiously elicit the facts from the witnesses called before the grand jury by having Mr. Browne examine them, as was done, in the presence of the State’s Attorney, and under his direction and supervision. It is not contended that Mr. Browne was present in the grand jury room at any time when the grand jury were deliberating upon the - case, or discussing questions pertaining to the finding of an indictment, nor when any vote was taken. Nor does the evidence disclose any improper conduct on the part of Mr. Browne, nor any attempt to influence the grand jury in any way concerning the performance of their duties. In the examination of the witnesses, in effect, he acted as assistant to the State’s Attorney, but without having been regularly appointed for the performance of such duties. While this service performed in the grand jury room was one not authorized by statute, and was to some extent in conflict with the strict rules of secrecy, which pertains to grand jury proceedings, yet in the absence of any proof of misconduct or of any acts which can be considered as prejudicial to the rights of the plaintiffs in error, Mr. Browne’s presence in the grand jury room, under the circumstances stated, does not furnish a sufficient legal basis for the quashing of the indictment. It is true, there is some conflict in the decisions of the courts of review o in the different states on this question, but the prevailing doctrine is correctly stated in 33 L. R. A. (N. S.) 568, by the author who in a note concisely sums up the result of a review of the authorities on this question with this statement: “The weight of authority seems to hold that the fact that a special attorney was present before the grand jury, and assisted in examining witnesses, will not avoid the indictment, if he was not present during the deliberations of the grand jury and was not guilty of any further miscondudt.” The statement is clearly borne out by the authorities. State v. Brewster, 70 Vt. 341; Bennett v. State, 62 Ark. 516; State v. Salmon, 216 Mo. 466, 115 S. W. 1107; State v. Bates, 148 Ind. 610; State v. Miller, 95 Iowa 368; Shattuck v. State, 11 Ind. 475; Courtney v. State, 5 Ind. App. 356; State v. Kimball, 29 Iowa 267; Wagner v. State, 119 Md. 559, 87 Atl. 407; Fooshee v. State, 3 Okla. Cr. 666, 108 Pac. 559; Cross v. State, 78 Ala. 430; Blevins v. State, 68 Ala. 92; State v. Whitney, 7 Ore. 386; State v. Bacon, 77 Miss. 366; Sadler v. State, 124 Tenn. 50, 136 S. W. 430; Mullins v. Commonwealth, 25 Ky. L. Rep. 2044, 79 S. W. 258; State v. Tyler, 122 Iowa 125; State v. Adam, 40 La. Ann. 745, 5 So. 30; Wilson v. State, 41 Tex. Cr. 115; McElroy v. State, 49 Tex. Cr. 604; People v. Bradner, 44 Hun (N. Y.) 233; State v. Justus, 11 Ore. 178; Higgins v. State, 157 Ind. 57, 60 N. E. 685; People v. Coco, 70 N. Y. Misc. 195, 128 N. Y. Supp. 409; United States v. Simmons, 46 Fed. 65; State v. Sullivan, 110 Mo. App. 75, 84 S. W. 105.

In our own State, so far as the matter has been passed upon, the decisions are directly in line with the authorities above cited. Thus the Supreme Court in the case of People v. Nall, 242 Ill. 284, in passing upon a similar situation, uses this language: “The contention is made that the court erred in refusing to quash the iqdictme'nt, because, it is argued, one of the special attorneys for the State appeared before the grand jury during its consideration of the indictment, and that the indictment was on that account tainted with malice, if not with corruption, and the court should have quashed it. It appeared from the testimony of the foreman of the grand jury and the special counsel in question that the latter was called before the grand jury which returned this indictment, ' but both these witnesses testified that said counsel was not asked any questions with reference to the indictment here in question. * * * We find nothing in the record indicating that there was any improper conduct on the part of the grand jury or this attorney.”

And in People v. Arnold, 248 Ill. 169, where the charge against the accused was rape, and the father of the prosecuting witness was allowed to remain in the grand jury room while she was giving her testimony, the court, in hólding that this was not a ground for quashing the indictment in that case, sums up the matter in this way: “That the father was in the grand jury room at the time when some cloths that had been used were identified, for the alleged reason that the girl was timid and unable to appear alone in respect to a matter of that kind. * * * There could have been no prejudice to the defendant from anything that occurred before the grand jury, and the court did not err in refusing to quash the indictment.”

It is also urged as a further ground for quashing the indictment that the grand jury had before them a typewritten transcript of testimony which had been taken before the referee in bankruptcy, and that this evidence was not competent to be considered by the grand jury, and that they may have considered it. There was such a transcript of evidence in the grand jury room, but there is no proof that the grand jury had any knowledge of its contents, or that it was referred to or considered by them in any way. - But even though the grand jury might have heard or considered some incompetent evidence, this fact would not be a ground for the quashing of an indictment. People v. Bladek, 259 Ill. 69. We are of opinion, therefore, that the motion to quash was properly denied by the court.

Another ground urged for a reversal of the judgment is that, over the objection of the plaintiffs in error, the special counsel employed was allowed to assist in the trial of the case. There is no merit in this contention. This was also a matter that rested in the sound discretion of the trial court, and the record does not disclose any proper basis for excluding the special counsel from participating in the trial. Hayner v. People, 213 Ill. 142; People v. Blevins, 251 Ill. 381; People v. Gray, 251 Ill. 431; People v. Donaldson, 255 Ill. 19; People v. Strosnider, 264 Ill. 434; People v. Spencer, 264 Ill. 124. The case cited by counsel for plaintiffs in error (People v. Gerold, 265 Ill. 448) is not in conflict with the cases above referred to, but it expressly reaffirms the doctrine announced therein in this language: ‘ ‘ This court has held that whether counsel should be employed to assist the State’s Attorney in the prosecution of a ease rests largely in the sound discretion of the court, to be decided according to the special facts and the situation in each case; that it is the duty of the court to prevent oppression of the accused and permit only such assistance as justice and fairness may require.” ' I

It is also contended, in reference to the special counsel, that in his opening statement at the trial he made assertions concerning facts which the evidence afterwards introduced did not justify, and which were therefore prejudicial to the plaintiffs in error. The record, however, does not bear out this contention. The proof made substantially sustains the counsel’s statements concerning the facts. j

It is contended that no proper proof of value of the assets of the bank in question was made, and that the proof which was made did not show the value of the assets at the time of the failure. Also that the evidence of the amounts realized from the assets in the settlement of the bankrupt’s estate, by the trustee in bankruptcy, was incompetent; and special exception is taken to the testimony of James E. Malone, who had acted as attorney for the trustee; and the testimony of Arthur Colwell, the referee in bankruptcy; and of Walter M. LeClear, an accountant expert. These witnesses because of their connection with the case had all gained special knowledge of the contents of the books, papers, accounts, and the assets generally of the bankrupt estate, and of the proceedings had with reference thereto, and were able' with this knowledge to give summaries from the books, papers and records of the bank and the proceedings in bankruptcy concerning the business transactions as disclosed by such books, papers and records and proceedings, and of the money realized from the different assets by the trustee in the usual and regular way of winding up the bankrupt estate. They were also able to express opinions as to the value or the lack of value of a large portion of the assets. Testimony of this character is competent. Chicago & W. I. R. Co. v. Heidenreich, 254 Ill. 231. And it has been repeatedly held that where the originals consist of numerous documents, books, papers or records which cannot be conveniently examined in court, and the fact to be proved is the general result of the whole collection, evidence may be given as to such result by any competent person who has made an examination. People v. Gerold, 265 Ill. 448; Reinke v. Sanitary Dist. of Chicago, 260 Ill. 380; Welsh v. Shumway, 232 Ill. 54.

i The point is also made that the schedules filed in the bankruptcy proceedings, as well as the other proceedings, are incompetent as evidence against the plaintiffs in error, because the proceedings were involuntary. The proceedings were involuntary in form only. As a matter of fact, as shown by the evidence, they were instigated and instituted by the plaintiffs in error themselves, through the instrumentality of the three creditors who filed the petition; in legal effect they were the same as if brought and carried on by the plaintiffs in error. The objection to the evidence therefore based upon the ground that the proceedings were involuntary is of no weight, and the evidence contained in the schedules, as well as in the other proceedings, must be regarded as in the same category as if the schedules had been filed in voluntary proceedings instituted by the plaintiffs in error.

Two inferences, at least, may be reasonably drawn from the instigation of the bankruptcy proceedings: First, that when the plaintiffs in error determined to have them instituted, they were conscious of insolvency; and secondly, that the purpose of the proceedings was to legally establish such insolvency, and the extent thereof. And all. the proceedings disclose concerning these elements in the case is competent evidence.

As to the evidence concerning the value of the assets, it consisted chiefly in a showing of a lack of value. The hulk of the assets had no market value and were shown to be practically without any value whatever. It was for this reason, as shown by the evidence, that the trustee was unable, in the usual and ordinary course of liquidation of the bankrupt estate, to realize anything from them; and the efforts of the trustee to convert the assets into money was in many instances a practical test, and the only one that could be applied to some of the assets under the circumstances, to ascertain whether or not such assets had any money value. We are of opinion that the proof of what was realized in money from the assets in the bankruptcy proceedings, which was within a comparatively short time after the failure, was competent evidence tending to show the value of the assets, and tending to show their value also at the time of the failure of the bank; and that it was proper for the jury to have this evidence to consider in connection with the other evidence in the case concerning values. But this evidence was also competent upon the question of what loss, if any, the depositor, involved in this case, sustained by mailing the deposit on the day of the failure. There is evidence in the record of certain acts and the conduct of the plaintiffs in error with reference to the assets of the bank which also throws, some light upon the question of the value, or rather the lack of value, of the assets at the time of the failure of the bank. The evidence discloses that for about 2 years prior to the failure the plaintiffs in error found it necessary repeatedly to resort to questionable devices and practices to avert the catastrophe which finally struck them. On-repeated occasions they were in desperate need of money and the means to raise the funds to keep their business going. It is a proper inference, and a matter within the common knowledge of men versed in business affairs, that if the assets from which the trustee was unable to realize any money had really had value, that there could have been no necessity for resorting to the devices which they employed and no occasion for their desperation. But the assets could have been relied upon to have furnished abundant collateral, from which their money needs could at all times have been legitimately and easily provided for, and no doubt they would have been used for that purpose if they had had the value later claimed for them. Nor is it at all probable that in that event at the time of the failure they would have regarded themselves as “broke” and ready for the bankruptcy court. Plaintiffs in error claim that their constitutional rights were violated by using the books, papers and documents of the bank in the presence of the trustee as evidence against them. It has been repeatedly held that no constitutional rights are violated by the introduction of evidence of this character. Wilson v. United States, 221 U. S. 361; Wheeler v. United States, 226 U. S. 478; Grant v. United States, 227 U. S. 74. And that evidence of this character is sometimes admissible and competent even though the letters, papers and documents may have been unlawfully obtained. Trask v. People, 151 Ill. 529; Gindrat v. People, 138 Ill. 103; Siebert v. People, 143 Ill. 583.

Most of the contentions made by the plaintiffs in error concerning the inadmissibility of the evidence of certain witnesses, and of the books and papers of the bank, and of the evidence concerning values, were passed upon by this court adversely to such contention-in the case of People v. Munday, 204 Ill. App. 24, and the same questions were also decided adversely to the contentions of the plaintiffs in error by the Supreme Court, in the same case. (280 Ill. 32.)

It is true that there is evidence in the record of questionable competency, but in our opinion it is not of such a character or importance that it could have affected the result of the trial, either upon the question of guilt or the measure of punishment. The proof of guilt established by the competent evidence in the case is so clear, convincing and complete, that the jury could not have had any reasonable doubt about it. The slight errors committed are therefore of no con- ^ sequence, and would not justify a reversal of the judgment. People v. McCann, 247 Ill. 130; People v. Cleminson, 250 Ill. 135; People v. Burger, 259 Ill. 284; People v. Strosnider, 264 Ill. 434. Judgment is affirmed.

Affirmed.