text:
    Frank P. Fox, Appellant, v. Phillip F. Simons et al., Appellees.

      Agency—good faith required. An agent will be held to the utmost good faith in dealing with the subject-matter of the agency. The relation of principal and agent is one of trust and confidence and the agent will not be permitted to betray such confidence to take advantage of the position to benefit himself to the disadvantage of his principal and where he deals with the subject-matter on his own account he will be compelled to transfer the benefit to the principal. Where the consent of the principal is given, however with full knowledge of the facts and there is no concealment or deception on the part of the agent and the principal has suffered no injury therefrom there is no violation of the agent’s obligation to his principal.
    Bill for accounting, etc. Appeal from the Circuit Court of Marion county; the Hon. Albert M. Rose, Judge, presiding.
    Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed August 5, 1910.
    Rehearing denied October 27, 1910.
    Charles H. Holt and Kagy & Vandervort, for appellant.
    Noleman & Smith and W. F. Bundy, for appellees; Leroy M. Wade, of counsel.
   Mr. Justice Shirley

delivered the opinion of the court.

Appellant Fox filed his bill against the appellee, Phillip F. Simons, to compel the assignment of certain leases and for an accounting.

It was averred in substance that appellant had employed Simons as agent to solicit and procure water, oil and gas leases upon various tracts of land upon a stipulated salary, and that by virtue of his employment it was his duty to procure leases in the name of appellant, and that in violation of the trust reposed in him and while he was so employed he secured certain leases to the number of thirteen to himself; that so taking said leases was a fraud upon appellant, and that Simons in equity acquired no right to said leases, bat held the same in trust for appellant.

The bill prayed that Simons be decreed to assign the leases to appellant and account for any money received by him by virtue of any of said leases having been made to him.

By an amendment to the bill Michael Wade, Charles B. McCamey, Nellie M. Simons, Charles E. Gribson, Carrol F. Veitch and John Miller as assignees of Simons to certain of said leases were made parties defendant.

All of the defendants answered, denying the material allegations of the bill, and further answering that appellant agreed Simons might take leases in his own name while taking leases for appellant, and that with knowledge of the taking of said leases by Simons he acquiesced in such action.

Upon a hearing, the court entered a decree finding appellant had no interest in said leases and dismissing the bill for want of equity.

Numerous errors are assigned, but the arguments of counsel are confined to the alleged errors of the court in refusing to grant the relief prayed in the bill, and in dismissing it for want of equity.

Appellant was engaged in what he called the business of an oil producer and had been operating in this state for several years. It was a part of the business to secure oil and gas leases in territory where it was supposed oil and gas might be found and produced. Among several persons employed by appellant for this purpose was appellee Simons, whom appellant employed in November, 1907. At that time Simons was employed at a salary of $150 per month and his traveling expenses, to secure leases for appellant. He worked in this line of employment in Indiana and Missouri until about September 1, 1908, when he went to Marion county, Illinois, to secure leases for appellant, still at the same salary. It was while Simons was thus engaged that he secured the leases to himself and the controverted question of fact is whether appellant agreed that while securing leases for him, Simons might also secure leases for himself.

When Simons went to Marion county he was directed by appellant to take a block of leases on land south of the B. & O. R. R. at or near Sandoval. At the same time appellant sent another agent to take leases in the same field or vicinity north of the railroad. There was no direction to secure leases on any particular tracts, but appellant testifies he told his agents to secure about 3,000 acres. After 2,370 acres had been secured and reported to appellant the agents as they testify told him they would return and get more for him but he said that would be enough. At this time oil had not been developed in the field, except a sign of oil in a coal mine which had attracted appellant to secure leases there. Appellee Simons and one Mc-Camey who also was an agent of appellant, and working with him, testify that appellant made this statement about the last of September or first of October.

Simons testifies that the second day they were in the field to get leases he said to appellant, “Frank, it looks good to me; I am going to take a little stuff for myself” and appellant replied “I don’t care.” Appellant testifies that not to his knowledge did he, in the month of September, give his consent that Simons might take some leases for himself, but does admit that about October 4th, when Simons asked him how it would be for him to go out and get a few leases for himself he said “all right.”

The leases taken by Simons to himself were on small tracts and amounted in the aggregate to 452 acres.

The evidence shows, we think, that appellant knew Simons had taken the leases to himself some time before oil and gas were struck in the territory in the latter part of March afterwards, and Simons testifies appellant never made any demand upon him to assign the leases to appellant before he brought this suit and after oil and gas were found.

Without unduly extending this opinion by a discussion of the evidence and of circumstances which add more or less weight to the contention of the parties by way of corroboration we are of opinion that upon the whole evidence the chancellor who heard the witnesses was warranted in finding that appellant was satisfied with securing leases on 2,370 acres and then wanted no more, and that before Simons acquired any leases be gave him permission to secure leases for himself. If such permission were given there is nothing in the evidence to show there was any abuse of it by Simons. At that time no oil or gas had been developed; the field was only a bare prospect, and one piece of land in the field was as good a prospect.as any other. No advantage was taken by Simons as to situation, and it also appears Simons’ leases were in small and scattered tracts; that he paid for the leases himself and that there was no secrecy about his transactions.

An agent will be held to the utmost good faith in dealing with the subject-matter of the agency. The relation of principal and agent is one of trust and confidence, and the agent will not be permitted to betray such confidence and take advantage of the position to benefit himself to the disadvantage of his principal, and where he deals with the subject-matter on his own account he will be compelled to transfer the benefit to the principal. These principles are elementary; they rest upon simple rules of common honesty, and need no citation from law books to support them.

Where the consent of the principal is given however with full knowledge of the facts and there is no concealment or deception on the part of the agent, and the principal has suffered no injury therefrom, there is no violation of the agent’s obligation to his principal.

We think the evidence fairly shows a full knowledge by appellant of all the facts material to be known concerning the field and its prospects, and there was no deception, or concealment of any material fact from appellant and the chancellor having found against appellant upon the question of his consent to Simons to secure his leases and believing such finding to be fairly supported by the evidence the decree will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Shirley

license: Public Domain

text:
    Frank Dunham, Executor, Appellant, v. A. P. Woodworth et. al., Appellees.
    1. Liens—question of priority. If the statute has been complied with a mechanic’s lien is prior to that of a mortgage if first in point of time.
    2. Liens—what compliance essential to sustain mechanic’s lien. The mechanic’s lien act is in derogation of the common law and is to be strictly construed and in order to endorse a lien under such act there must be a substantial compliance with its requirements.
    3. Liens—when mechanic’s not enforced to prejudice of mortgage. A mechanic’s lien will not be enforced to the prejudice of a mortgage in the absence of evidence that the bill was filed within four months after the completion of the work and in the absence of evidence of the filing of a claim for lien as provided by statute.
    Bill in equity. Appeal from the Circuit Court of Crawford county; the Hon. E. E. Newlin, Judge, presiding.
    Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed November 12, 1910.
    George E. McQueen and Parker Eagleton, for appellant.
    Callahan, Jones & Lowe, for appellees.
   Mr. Justice Shirley

delivered the opinion of the court.

Appellant, as executor of the estate of Schuyler H. Dunham, deceased, filed a bill in equity to enforce a mechanic’s lien and foreclose a mortgage against lot number 15 in Ellen K. Woodworth’s addition to the city of Robinson.

It was averred in the bill that appellee Woodworth was the holder of a mortgage on said premises, the lien of which was inferior to and subject to the mortgage and mechanic’s lien of appellant, and that the other defendants had or claimed to have claims for labor and material furnished against said premises. A cross-bill was filed by appellee Woodworth and answers having been filed to the bill and cross-bill, the cause was heard by the court who found the equities of the parties to be, that the mortgage of appellant was a first and prior lien, that the mortgage of appellee was next in priority, and that the claims for mechanic’s liens of appellant and John W. Kessler were inferior to the said mortgage liens. The court by its decree ordered a foreclosure and sale, and ordered a distribution of the proceeds accordingly, from which decree and order appellant prosecutes this appeal.

The only question submitted here for review arises upon that provision of the decree finding the mortgage of appellee Woodworth to be a prior lien to the claim for mechanic’s lien of appellant.

It appears that a firm named Brubaker and Son had .furnished to John H. Padgett, the owner of the premises described in said mortgages, the material for the erection of a dwelling thereon to the amount of $876.15. This sum was never paid and Brubaker and Son on October 28, 1907, filed a claim for lien against the premises. On October 30th, following, Brubaker and Son assigned the claim for lien to one Schuyler II. Dunham, since deceased, of whose estate appellant was the executor. Schuyler H. Dunham had made a loan to Padgett of $1,200 on October 4, 1907, taking a mortgage on the premises which was filed for record October 7,1907.

Prior to this on September 13, 1907, Padgett had executed a mortgage on the property for the sum of $450 to appellee Woodworth which was not filed for record until December 4, 1907.

If there was a compliance with the statute in the proceeding to perfect the mechanic’s lien, it had priority over appellee’s mortgage as it was first in time, and the court erred in giving the mortgage priority.

The decisions are uniform in this state that the statute is in derogation of the common law and is to be strictly construed, and in order to enforce the lien, there must be a substantial compliance with the requirements of the lien law.

Section 21 of the statute in relation to liens, provides that, “No contractor shall be allowed to enforce such lien against or to the prejudice of any other creditor or encumbrancer or purchaser unless within four months after completion—he shall either bring suit to enforce his lien therefor or shall file with the clerk of the Circuit Court—a claim for lien verified by the affidavit of himself or his agent or employee which shall consist of a brief statement of the contract, the balance due after allowing all credits, and a sufficiently correct description of the lot—to identify the same. Such claim for lien may-—-as to such owner be amended at any time before the final decree.”

Section 25 provides “the bill or petition shall contain a brief statement of the contract or contracts on which it is founded, the dates when made and when completed,—and it shall also set forth the amount due and unpaid, a description of the premises which are subject to the lien, and such other facts as may be necessary to a full understanding of the rights of the parties. ’ ’

Section 26 provides “the court shall permit amendments to any part of the pleadings—and the rules of practice and proceedings in such cases shall be the same as in other cases in chancery, except as is otherwise provided in this act.”

By section 21 of the statute the lien claimant may pursue either of two remedies to enforce his lien. Within four months after completion he may enforce it by either bringing suit, or he may file with the clerk of the Circuit Court a claim for a lien. These proceedings are in the nature of notice to encumbrancers and to be effective against them the provisions of the statute must be substantially complied with.

In this case appellant invoked both remedies to enforce his lien and if in the pursuit of either he complied with the statute, he was entitled to a lien prior to the mortgage of Woodworth, otherwise not. The bill was filed as appears from the file marks thereon on January 29, 1908.

We have carefully examined the certificate of evidence to find whether the bill was filed within four months after the completion of the delivery of the material but find no evidence as to when it was delivered. This lack of evidence is fatal to the bill so far as its effectiveness under section 21 of the statute is concerned. There is the same lack of any such evidence so far as the filing of the claim for lien is concerned. Before the lien could be enforced, it must be shown by competent evidence that the claim for lien was filed or the bill filed to enforce the lien within four months after the final delivery of the material. This was imperative and in the absence of such evidence no right to a lien as against Woodworth was shown, and the decree of the court giving the Woodworth mortgage priority was right.

It will be unnecessary to consider other errors assigned or other questions raised.

The decree of the Circuit Court will be aErmed.

Affirmed.


text:
    John B. Boyd, Appellee, v. Carterville Coal Company, Appellant.
    1. Negligence—ivhen doctrine res ipsa loquitur inapplicable. Meld, in an action by a servant against his master for injuries resulting from the unexpected revolving of a fan that mere proof of the revolving of the fan did not make out a prima faeie case of negligence against the master, but that the facts that the fan did revolve from the force of steam in the fan engine and that the valve was shut were circumstances and physical facts which the jury had a right to consider with other evidence in determining whether the valve was so defective that it leaked steam into the engine.
    2. Verdicts—when lack of evidence to support particular count cannot be urged. When some count of the declaration is sustained by the evidence, the defendant cannot for the first time on appeal complain of the lack of evidence to support some particular count,
    3. Instructions—predicated upon evidence. An instruction is properly refused which is not supported by any evidence in the record.
    Action in case for personal injuries. Appeal from the Circuit Court of Williamson county; the Hon. M. W. Thompson, Judge, presiding.
    Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed August 5, 1910.
    Rehearing denied October 27, 1910.
    William H. Warder, for appellant.
    Neely, Gallimore, Cook & Porter and Denison So Spiller, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

On Sunday, January 24,1909, appellee who was then and had been employed by appellant several years as a blacksmith and repair man was injured by the unexpected revolving of a fan then being repaired by him. He recovered a judgment for the sum of $1,750.

The declaration contained a number of counts all on the alleged negligence of appellant in failing to furnish appellee with a reasonably safe place to work, and. with reasonably safe appliances, except the second count in which was charged a wilful failure to examine the appliance alleged to have been defective, and to mark the same as required by statute.

Appellant was operating a coal mine. There was a main shaft through which coal and men were hoisted, and an air shaft for ventilation. The shafts were some 1,200 feet apart. The boiler plant was located near the main shaft. Near the top of the air shaft was located a large fan with blades twelve feet in length, and the fan was more than twenty feet in diameter. It was constructed to revolve rapidly to facilitate the circulation of air down the air shaft and into and through the mine. The fan was operated by a small engine called the ‘ fan engine ’ ’ located near the fan, which was supplied with steam conducted from the boilers by means of an iron pipe. The pipe was two inches in diameter and was used to carry steam both to the fan engine, and thence on down the air shaft to machinery below. Near the air shaft a branch pipe from the main pipe connected with the fan engine. There was a valve called the boiler valve in the main pipe near the boilers, by which steam could be turned on or off in this pipe and another valve in the pipe that led from the main pipe to the fan engine and near the fan engine, called the fan engine valve. By this means steam could be let into the main pipe by the boiler valve, and prevented by the fan engine valve from connecting with the fan engine, or by the latter valve steam could be admitted to the fan engine.

Appellee at the time of his injury was by order of the superintendent of appellant engaged in repairing the fan. It was on Sunday and the mine was not in operation, although steam was up in the boilers. He was assisted by Drummond, the top foreman-. To repair the fan it was necessary among other things to put in a brace between the blades and this required appellee to get inside the blades. When there was no steam on, the fan could be easily turned by hand; with steam on it would revolve fast or otherwise owing to the amount of steam pressure, and with the usual pressure it would revolve rapidly.

Before appellee and Drummond began to repair appellee went to the boiler room and told the engineer to shut the steam off the main pipe,' after which appellee repaired some hinges. Before going inside the blades of the fan to work appellee went back to the boiler house and told the engineer to turn the steam into the main pipe; he then returned to the fan house and before steam had been turned into the main pipe appellee told Drummond to close the fan engine valve as the steam would be turned on. Appellee and Drummond do not agree as to the time when appellee told Drummond to close the fan engine valve, but both agree it was closed or steam shut off by Drummond before appellee went inside the fan.

After appellee went inside the' fan Drummond was turning it for him, when the fan started to revolve and Drummond was unable to stop it. Doing to the valve he found it closed and he threw a board into the fan and stopped its revolutions. The revolving of the fan was caused by force of the steam getting into the fan engine, and resulted in appellee being thrown about inside the fan and down upon the concrete floor underneath, receiving painful injuries.

There is substantially no dispute about the facts above recited; the main contention arises upon the question whether there was any sufficient evidence of a defect in the valve. All the counts in the declaration charge this to have been the cause of the injury; the common law counts also alleging notice of the defect to appellant and no notice to appellee, and the exercise of reasonable care on his part.

Upon the question of a defective valve we have given the evidence a careful consideration and have reached the conclusion it was sufficient to support the charge in, the declaration and the verdict, and we have reached it in view of the rule of law that to hold the master liable for an injury, to his servant, some defect or insufficiency in the machinery must be- shown, of which the master had notice, or which in the exercise of reasonable care he might have known. While we are of opinion the rule res ipsa loquitur has no application under the pleading and evidence in this case so as to make a prima facie case of negligence against appellant by mere proof of the revolving of the fan, thereby casting the burden upon appellant to rebut it, yet the facts that the fan did revolve from the force of steam in the fan engine and that the valve was shut, were circumstances or physical facts which the jury had the right to consider with other evidence, in determining whether the valve was so defective it leaked steam into the engine. In addition to this, the testimony of Lockie, the engineer of appellant, was, that if the valve of the fan engine was in good repair it would not when closed, permit the fan to be propelled while steam was in the main pipe. This witness also testified that he was appellant’s inspector of the fan and he found that valve had a small leak in it three weeks before the injury occurred; that he had noticed this condition two or three times before the appellee was injured, and' that he did nothing to the valve, nothing but report about the condition of the valve. The witness stated it had escaped a little he thought, but wasn’t positively sure, but not enough to run the fan.

On behalf of appellant there was the testimony of witnesses that the valve worked properly before and after the injury but the weight of the testimony and the credibility of the witnesses were for the jury to determine, and we conclude - that there was sufficient evidence of a defective valve, of notice to appellant, and of reasonable care on the part of appellee to support the common law counts of the declaration.

It is insisted thére was no evidence to support the second count of the declaration alleging a wilful failure on the part of appellant to have its mine examiner inspect the valve, and observe whether there were unsafe conditions and mark the same, for the reason the statute does not require an examination when the mine is not in operation, as it was not on the day of appellee’s injury. There was no instruction asked by appellant to disregard for want of evidence the count; both parties treated it as properly before the jury and asked and received instructions based upon it, and no complaint is made of any instruction based upon it given for appellee.

As the other counts of the declaration were amply sustained by the evidence appellant cannot now complain in this state of the record of the lack of evidence to support the second count. One good count if proved in a declaration will sustain the verdict. Snyder v. Gaither, 3 Scam. 91; Shreffler v. Nadelhoffer, 133 Ill. 536.

Complaint is made of the refusal of an instruction that as matter of law Drummond and appellee were fellow servants. Waiving the question whether the court should have so held as matter of law there was nothing upon which to base it. There was no complaint and no evidence appellee was injured through any fault of Drummond. There was no dispute the valve at the fan engine was turned off, and "the complaint was the valve leaked and caused the injury, and there was no evidence of any other cause. Finding no error the judgment will be affirmed.

Affirmed.


text:
    Emily Cole, Appellee, v. City of East St. Louis, Appellant.
    1. Negligence—when question one of law. It the evidence and all reasonable inferences to be drawn therefrom are such that reasonable minds would say without hesitation, that the plaintiff was guilty of contributory negligence or that there was no negligence on the part of the defendant contributing to the injury, the question ceases to be one of fact and becomes one of law and it is the duty of the court to take the case from the jury, there being no issue of fact for it to try.
    2. Negligence—duty of city with respect to streets. It is the duty of a city to use reasonable care to keep its streets in a reasonably safe condition for public travel and this duty cannot be evaded or delegated to others.
    3. Negligence—who cannot avail of defense of independent contractor. If an injury occurs upon a public street of a city such city cannot successfully defend upon the ground that such injury was occasioned by the negligent manner in which a contractor did his work.
    4. Evidence—what conclusions competent. Witnesses are permitted to state without going into details whether the street is rough or smooth, whether the temper of animals is good or bad, whether the state of the weather is fair or not, whether a person is drunk or sober and many other like conclusions.
    5. Evidence—as to willingness to submit to physical examination. It is not error to sustain an objection to a question asked of the plaintiff as to whether or not she will submit to a physical examination by physicians of the defendant.
    6. Evidence—when testimony of physicians competent. Physiwho have treated the plaintiff in an action for personal injuries and who have not examined her simply for the purpose of testifying are competent to testify as to both objective and subjective symptoms.
    7. Notices—act in relation to giving notice, of personal injuries, to cities construed. In a notice given to a city of a personal injury sustained upon one of its streets it is only required that the names of the physicians who have attended the person injured up to that time be given. A physician subsequently called is competent upon the trial.
    8. Instructions—when motion for peremptory should he denied. If there is evidence fairly tending to prove the material averments of the declaration a motion to direct a verdict must be denied and the court cannot weigh the evidence.
    9. Instructions—as to immaterial facts. An instruction pertaining to an immaterial fact need not be given.
    10. Instructions—when refusal of correct will not reverse. The refusal of a correct instruction will not work a reversal if no harm resulted.
    11. Instructions—must not ignore issues. An instruction upon a particular subject is properly refused if it omits an essential element pertaining to the issue upon such subject.
    12. Verdicts—when not excessive. Held, in an action for personal injuries that a verdict for $7,000 while large, was- not so excessive as to be apparently the result of passion or prejudice, where the evidence tended to show that the plaintiff at the time of the injury was twenty-eight years of age, strong and in good health and where for some months after the injury she was confined to her bed and became a sufferer from paralysis and could only get about with the aid of crutches.
    13. Pleading—when motion in arrest not sustained. A motion in arrest is properly denied if the declaration was not challenged by demurrer and alleges the obligation of the defendant to observe a duty, the breach of that duty, the resulting injury to the plaintiff while exercising due care, and consequent damages to the plaintiff.
    Action in case for personal injuries. Appeal from the Circuit Court of St. Clair county; the Hon. William E. Hadley, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed November 12, 1910.
    Maurice V. Joyce and Charles P. Wise, for appellant; C. E. Pope, of counsel.
    W. M. Vandeventer, W. E. Knowles, C. B. Williams and D. J. Sullivan, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

This cause was before this court on appeal and was reversed and remanded at the February Term, 1909. The opinion will be found in Volume 147 of the reports of this court at page 234. Another trial has resulted in a verdict and judgment in favor of appellee.

Appellee’s declaration contained two counts both charging the appellant with the duty of exercising due care to keep its streets in a reasonably safe condition for public travel; that it was possessed of a public street in said city known as Ninth street in which the appellant negligently permitted to remain a dangerous obstruction and that while appellee in the exercise of reasonable care, and unaware of said obstruction, was driving along said street, she came in collision with said obstruction whereby she was thrown violently to the ground and injured.

The assigned errors urged here for a reversal of the judgment are: That the peremptory instruction asked by appellant should have been given; that the court erred in ruling upon the admissibility of evidence and in its ruling upon instructions; that the verdict is contrary to the evidence, excessive and the result of prejudice, passion and sympathy; and that the court erred in overruling appellant’s motion in arrest of judgment and for a new trial.

The alleged errors will be considered in their order.

It is claimed the evidence shows appellee to have been guilty of such contributory negligence as to bar a recovery and that appellant was guiltless of actionable negligence, wherefore appellant was entitled to have its peremptory instruction in either case.

To repeat an oft-announced rule, if. the evidence and all reasonable inferences to be drawn therefrom were such that reasonable minds would say without hesitation that appellee was guilty of contributory negligence or that there was no negligence on the part of appellant contributing to the injury, the question ceases to be one of fact and becomes one of law, and it is the duty of the court to take the case from the jury there being no issue of fact for it to try. Werk v. Illinois Steel Co., 154 Ill. 427; C. & N. W. Ry. Co. v. Hansen, 166 id. 623; Hewes v. C. & E. I. R. R. Co., 217 Ill. 500.

If there is any evidence however fairly tending to prove the material averments of the declaration, the motion to direct a verdict must be denied and the court cannot weigh the evidence. Boyce v. Tallerman, 183 Ill. 115; C. C. Ry. v. Martensen, 198 id. 511; C. C. Ry. v. Gemmill, 209 id. 638; Hewes v. C. & E. I. R. R. Co., supra; Libby, McNeill & Libby v. Cook, 222 id 206.

Appellee at about nine o ’clock on the night of August 28, 1907, was injured while driving a horse hitched to a buggy along a street in the city of East St. Louis, by her buggy coming in contact with a post standing in the street causing the horse to break loose from the buggy and appellee to be jerked over the dashboard and dragged some distance upon the ground.

It appears from the evidence that the point where appellee was injured was on Ninth street between Lake and Natalie avenues. In January, 1907, appellant had passed an ordinance for the improvement of this street for a distance of about one mile in which was included the place of the accident. Appellant in May after-wards let the contract for the improvement and the contractor began in the same month to plow and grade the street. The street had formerly been a rock road and the rock plowed up was piled along the sides of the street at the sidewalk line. The work of plowing and grading was finished by July 27th, and there appears to have been no further work done at the point where appellee was injured prior to the day of her injury. When the contractor began the work of improvement, barriers were placed at the ends of Ninth street and at the intersections of cross streets to keep off the travel. These barriers were frequently removed, probably by persons desiring to travel the street. To provide a further barrier, posts were set in the street at two points and planks nailed thereto. One of these posts or barriers, was at the point.of the accident to appellee, and one of the posts there was the one with which her buggy collided. Street closing notices had been put up at street intersections and there were arc lights at the intersections and officers had been detailed to watch the lights and barriers. Notwithstanding these precautions, the barriers were removed and the street travelled and there was evidence that from about the middle of August the street was continuously used and travelled by the public and that truck farmers hauling their produce to the city were passing over the street by day and by night. It was further shown that the street was one of the principal thoroughfares of East St. Louis and there was evidence that from the middle of August up to the time of the injury to appellee there was no sufficient barrier to keep the travel off the street from the south line of Exchange avenue to the city limits. There had been a barrier placed in the street about a half block north of Exchange avenue which had been removed from the center of the street early in August, but a portion of the barrier had been left on each side of the street near the curb upon which a red light was placed at night.) There was evidence that no light was placed on the posts left in the street at the place of the collision for some three weeks prior thereto.

Appellee resided about three blocks from the southerly limit of the street between the point where the improvement began and the business portion of the city. She had not been where the improvement was being made and did not know of it. She started to drive over it after dark in company with a Mrs. Carter on their way to a suburb beyond the end of the street. They travelled over the usual route driving on to Ninth street at Exchange avenue and driving along on Ninth street to the city limits. They followed a wagon on to Ninth street from Exchange avenue and along Ninth street all the way. It is the testimony of appellee and her companion that when they drove onto Ninth street there was no barrier there and nothing to indicate to them the street was not open to travel and that the way showed it had been travelled by vehicles, it being made smooth by travel. They testified they drove the full length of the street and found no obstacle or barrier in the way of travel; that they met and passed several wagons on the street; that they saw no barriers anywhere and no lights indicating danger except two red lights a half block from Exchange avenue outside of the travelled way; and that they did not see the posts in the street with one of which the buggy collided on the return trip. They further testify that on the return trip, about a half block from the posts, they met and turned ont for a buggy and that soon after their buggy collided with the post in the street, resulting in appellee who had the lines in her hands wrapped around her wrists, being pulled or jerked over the dashboard. The post was in the middle of the street and it was so dark there appellee could not see it.

Upon this testimony there was no error in refusing to hold appellee guilty of contributory negligence on the motion to direct a verdict.

It was the duty of appellant to use reasonable care to keep its streets in a reasonably safe condition for public travel and this duty cannot he evaded or delegated to others. Village of Jefferson v. Chapman, 127 Ill. 438.

The fact that the street is being improved by an independent contractor does not relieve the city from its duty to use reasonable care to keep the street in a reasonably safe condition. If the improvement is such it cannot he made with reasonable safety without closing the street, it is the duty of the city to close the street and to use reasonable care to keep it closed; and such duty cannot be delegated so as to absolve the city from liability. Nor can the city divest itself of its duty to supervise the improvements it .directs to be made by making a contract therefor and exonerate itself from liability for an injury occasioned by the negligent manner in which the contractor does the work. Village of Jefferson v. Chapman, supra; Dillon on Mun. Corp., sec. 1027; Pettingill v. City of Yonkers, 15 Am. St. Rep. 442.

“Where a municipal corporation causes work to be done which is in its nature dangerous to the public, it is bound to take notice of the character of the work and of the condition in which it is left whether safe or dangerous.” City of Chicago v. Johnson, 53 Ill. 91; Same v. Brophy, 79 id. 277.

There was ample proof that the street by reason of the posts left standing in it without lights to indicate their presence, was dangerous, and to suffer it to remain open to public travel and not to close it and keep it closed was evidence of negligence. There was no error in refusing to direct a verdict on the ground there was no evidence of actionable negligence on the part of appellant.

It is further urged that the court erred in its rulings upon the evidence.

Witnesses were asked the condition of the street with reference to being smooth and answered, “It was smooth.” There was no error in this.

It was not necessary to go into all the details to describe the condition of the street. The purpose was to inform the jury of its condition, whether rough, as indicating it was in process of improvement, and not travelled, or smooth as indicating it was travelled, and it could be described in no better way. Witnesses without going into details are always permitted to state the temper of animals, whether good or bad, the state of the weather whether fair or not, whether a person was drunk or sober, and many other conclusions, for the reason that such conclusions are better descriptions than the details would he which go to make up the condition.

The court refused to require appellee to answer the question whether she would submit to an examination by physicians to be selected by appellant. We.are of opinion there was no error in this. The question was asked in the presence of the jury to which she by her counsel objected. Appellee was not required to submit to an examination and as the objection by her counsel amounted to a refusal to submit to it, the jury had no less advantage of it than if she had been required to answer. City of Chicago v. McNally, 227 Ill. 14.

The court permitted physicians to testify to objective and subjective symptoms in stating the nature of appellee’s injuries. The physicians so testifying had been treating her and had not examined her simply for the purpose of testifying. In such case the testimony was proper and admissible. Greinke v. C. C. Ry., 234 Ill. 564. There was no error in permitting the witness Dr. McElwee to testify because his name did not appear as an attending physician in the notice served upon the city. The notice was served November 6, 1907, and this witness was not called as a physician until July, 1909. The statute only requires the notice to contain the name of the attending physician at the time the notice was served.

We have carefully examined the instructions complained of given on behalf of appellee and so far as we can see they correctly state the law applicable to the questions involved in the case and are based upon the evidence introduced in support of appellee’s contention. To enter into a detailed discussion of them would amount to no more than a reiteration that in our opinion no error appears and would unduly lengthen this opinion.

It is urged the trial court erred in refusing instructions offered by appellant. The first refused instruction stated that if there was a contract entered into by appellant with W. H. Hill whereby Hill was to do all the work and furnish the material in the improvement of the street, that Hill was an independent contractor. There was no dispute that Hill was such contractor but the fact was immaterial since appellee’s right of recovery rested upon the negligence of the city notwithstanding such fact.

We see no objection to the second refused instruction. After reciting the conditions there it states that if the jury believe from the evidence appellee by a reasonable use of her senses could have avoided the injury, it was her duty to do so, and failing so to do would prevent a recovery. This instruction in effect required appellee to exercise ordinary care under the circumstances but as this duty was announced in other instructions, the refusal of the instruction was harmless.

The third refused instruction was to the effect that if an ordinance had been passed to improve the street, the contract let, and the contractor had closed the street by order of the mayor and posted notices of warning, and had placed barricades in the street, and further believed from the evidence that appellee after-wards drove on said street in the night time while it was dark and drove against one of the posts she could not recover. This instruction directed a verdict without incorporating the material elements appearing from the testimony that the barricades were permitted to be and remain down and the street travelled by the public with posts remaining therein and other circumstances tending to show a want of reasonable care on the part of appellant in not keeping the street closed to travel. The instruction was properly refused.

The fifth refused instruction was not a correct statement of the legal duty of appellant and there was no error in refusing it.

It is urged that the verdict is excessive and the result of passion, sympathy and prejudice. The testimony shows appellee to have been twenty-eight years of age, strong and in good health. For some months after the injury she was confined to her bed and since then she has been a sufferer from paralysis which has affected the control of her bladder and bowels and she can only get about with the aid of crutches. There is ample evidence that her present condition is due to the injuries complained of and that they are permanent. While the verdict of $7,000 is large, yet in view of the injuries sustained it is not excessive, and we find nothing in the record to show it to have been the result of passion and prejudice.

It is further urged that neither count of the declaration is sufficient to sustain a cause of action, and that there was no averment of notice in the second count. The counts were not challenged by demurrer and upon examination of the declaration it appears to us the plaintiff’s right, the obligation of defendant to observe a duty, the breach of that duty, the resulting injury while the plaintiff was exercising reasonable care, and consequent damages are averred with sufficient certainty in both counts even upon demurrer. The action of the court in overruling appellant’s motion in arrest of judgment was proper and as the evidence is sufficient to support the verdict, the court properly overruled appellant’s motion for a new trial.

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

'Affirmed.


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    Benjamin W. Wilkins et al., Appellants, v. Demalian Justice, Appellee.
    1. Statutes—rule of construction. Words importing the singular number may extend and be applied to several persons or things, and words importing the plural number may include the singular.
    2. Administration of estates—section 8 of act construed. By virtue of section 8 of the Administration Act which pertains to the appointment of next of kin to administration, it is not required that the judge shall appoint the first of the next of kin claiming the right of administration or that he shall appoint' a competent person nominated by the majority of such next of kin, and while he may delay action a reasonable time after application by one next of kin until other next of kin claiming the right of administration make their claims, yet if he has exercised the power of appointment pursuant to the application of one of the next of kin the appointment is legal.
    3. Administration of estates—-what does not disqualify administrator. The fact of indebtedness from the administrator to the estate is not a disqualifying interest.
    Appeal from the Circuit Court of Marion county; the Hon. S. L. Dwight, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 9, 1910.
    Rehearing denied. October 27, 1910.
    Kagy & Vandervort, for appellants.
    C. H. Holt, E. T. Telford and W. F. Bundy, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

Sea Bird Wilkins died intestate in the county of Marion on June 4, 1908. He left surviving no wife, child or children or descendants of a child or children or father, mother, brother or sister, but leaving some sixteen nephews and nieces and more than one hundred grand-nephews and grand-nieces.

On the sixth day of June following, one S. Catherine Justice, one of the aforesaid nieces, went before the Probate Court of Marion county and filed her petition renouncing her right to administer upon the estate and nominating her son, the appellee, for administrator. The Probate Court granted the prayer of her petition and thereupon appointed the appellee administrator of the estate. Appellee duly qualified by filing the bond required and taking the oath of office and letters of administration were issued to him.

From this order of the Probate Court, the cause was appealed to the Circuit Court where the order of the Probate Court was approved and confirmed and the cause ordered certified back to the Probate Court. This order of the Circuit Court is assigned for error and as a disposal of this assignment will dispose of the several other alleged errors assigned, it will not be necessary to consider and dispose of the others.

It is argued that the order of the Circuit Court was erroneous, appellee not being entitled to the appointment for the reason that fourteen out of sixteen nephews and nieces entitled under the statute to nominate, petitioned for the appointment of one Eoy Wilkins. It appears that after the appointment of appellee and on the same day, the said nephews and nieces filed a petition in the Probate Court for the removal of appellee and for the appointment of said Wilkins, the prayer of which petition was not granted. If there was any order entered by the court upon the petition, it does not appear in this record and the only question on the appeal before the Circuit Court was whether appellee was legally appointed.

There was no next of kin surviving of a class prior to the class to whom preference to administer is given by clause 8 of section 18, of chapter 3, of the Revised Statutes.

Clause 8 reads as follows:

“8th. To the next of kin or any competent person nominated by them.”

It is further provided that “only such persons as are entitled to administer under this act shall have the right to nominate. When several are claiming and are equally entitled to administration the court may grant letters to one or more of them preferring relatives of the whole to those of the half blood.”

It is argued that the language “Any competent person nominated by them” means at least a majority of them and not one of several next of kin in the same class, and that Catherine Justice being only one of a class had no right to nominate appellee as against a majority.

We are unable to find anything in any other provision of the chapter on administration that would warrant the construction contended for. While the language of the eighth clause is “the next of kin or any person nominated by them, ’ ’ we think it does not mean all the next of kin nor a majority of them.

It is a rule of statutory interpretation that “words importing the singular number may extend and be applied to several persons or things and words importing the plural number may include the singular.” We are of opinion that this rule of interpretation should be applied to said clause 8, and if the Probate Court appoints one of a class entitled to be appointed or appoints some competent person nominated by one of such class the appointment if made within sixty days would be legal; but we also are of opinion the probate judge in the exercise of the power should not act hastily but give the next of kin an opportunity to claim their right to administer as seems to be the purpose of the proviso above quoted.

The power to appoint is conferred upon the probate judge and is a judicial power by which he may select one or more of a class entitled to administer and it should be assumed that in the exercise of the power in making a selection a reasonable opportunity should be given the next of kin entitled to do so to claim the right to administer. This would also afford the judge an opportunity to acquaint himself with the qualifications of those claiming the right and would better enable him to make a proper selection.

In this case while it was not required that the probate judge should appoint the first of the next of kin claiming the right or that he should appoint a competent person nominated by such next of kin, and while he might well have delayed action a reasonable time until the other next of kin claiming the right to administer could make their claims, yet having exercised the power by appointing appellee it was a legal appointment.

It is further pressed upon our attention that the appellee should have been removed for the reason he was not a competent person; that he had borne the relation of a co-partner to the deceased at the time of his death and also that of agent and that some transactions of appellee concerning the business of the estate after his appointment show .him an unfit person and therefore not a competent one.

We have examined all the evidence in respect to these claims and without setting forth the evidence we conclude that there was no copartnership existing at the time of the death of the intestate.

The power of attorney which appellee held from the deceased was revoked by his death and even assuming appellee was indebted to the estate, this furnishes no reason disqualifying him to act. .If he has assets of the estate, the law will compel him to account for them if necessary.

We have also examined the evidence as it relates to the other transactions with one Fields about sheep and the transaction with Mrs. Frazier about a note. And also whether appellee has accounted to the administrator to collect and we are unable to find from the evidence any good reason why appellee should be removed on the ground he is not a competent person to administer the estate.

The judgment and order of the Circuit Court are accordingly affirmed.

Affirmed.


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    Sarah E. Chiles, Appellee, v. Alton, Granite & St. Louis Traction Company, Appellant.
    1. Eminent domain—cause of action for injury. Since the constitution of 1870 private property cannot be taken or damaged for public use without just compensation. Physical invasion of the property is not necessary hut the damages sustained must be such as are not common to other property.
    2. Eminent domain—liability for damages resulting from com struction of viaduct. The obstruction of light, air, view and access to property abutting on a street whereby it is injured, is an element of damage not common to other property generally affected, and a street railway company so causing such injury by and through the construction of a viaduct is liable since the constitution of 1870 to compensate the owner.
    3. Eminent domain—when admission of evidence as to loss of rents not erroneous. Held, in an action for injury to real property by and through the construction of a permanent viaduct, where the correct measure of damages is the difference between the fair cash market value before and after the erection of such viaduct, that it was not error to receive evidence of loss of rents resulting from the erection of such viaduct notwithstanding such loss of rents could not be allowed in the award of damages; the instructions in the case, however, clearly restricted the jury in determining the award to the correct measure of damages.
    4. Eminent domain—when exclusion of evidence of general depression error. Where evidence had been received as to the depreciation in rents caused by the construction of a viaduct it was held error to exclude evidence of a general business depression in the city resulting in considerable vacant property and in the depreciation of rental values.
    5. Eminent domain—what proof of title sufficient. In an action to recover damages for injury to real property by and through the erection of a viaduct, in the absence of evidence of title, claim or possession in another, evidence upon the part of the plaintiff of possession which had continued for some time under claim of ownership based upon a deed is sufficient.
    6. Measure op damaoes—in action for injury to real property. If real property be injured by and through the construction of a viaduct permanent in character, the correct measure of damages is the difference between the "fair cash market value of the property injured before and after the erection of such viaduct.
    Action in case. Appeal from the City Court of East St. Louis; the Hon. Mortimer Millard, Judge, presiding.
    Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed November 12, 1910.
    Schaefer, Farmer & Kruger, for appellant.
    James G. McHale and D. J. Sullivan, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

The record brings here for review a judgment for the sum of $2,000 damages alleged to have been sustained to the property of appellee by the construction and operation of a viaduct or elevated railway by appellant.

The declaration as amended charged that appellee was the owner of a parcel of ground in the city of East St. Louis abutting on Lake and Collinsville (otherwise known as Ninth street) avenues; that the ground was improved with dwelling houses abutting on the avenues and by a business house on the corner of the property abutting on both avenues; that appellee resided in a portion of the property and that she let the remainder to divers tenants who paid rent therefor.

It was further charged that appellant constructed an elevated railway of iron, stone and wood with approaches of embankments in front of the said premises and across said avenues which elevated railway was high above the level of appellee’s premises and that certain supports were built near the premises in such way as to hinder access to the premises and to obstruct public travel along said avenues; that appellant operated over its tracks on said railway, electrical passenger and work cars with electrical power, thereby causing a jarring and shaking of the premises, producing noises and casting dust, dirt, cinders and filth thereon, and obstructing the light, air and view; that said obstruction was a permanent one, and that by reason of its construction and operation the buildings and premises were lessened in value and income and greatly damaged. The errors assigned will be considered in the order in which they are presented in appellant’s argument.

Many authorities are cited in support of appellant’s contention that the elements for which damages were claimed were damnum absque injuria and that therefore the court erred in refusing to direct a verdict for appellant.

The testimony of the witnesses introduced by appellee showed that the property alleged to have been injuriously affected was located on the northeast corner of Lake avenue and Ninth street. Lake avenue runs about east and west and Ninth street about northeast. The property had a frontage of about 183 feet on both streets. It was improved by five small cottages located on the eastern portion and by a business house on the western part near the corner and about twelve feet from the building line of Lake avenue, and twenty-five feet from the line of Ninth street.

The appellant is a street railway corporation operating in the city of East St. Louis, and on July 16, 1906, the city by- ordinance authorized it to construct a viaduct and operate an electric railway thereon, across Lake avenue and Ninth street, and to erect the necessary pillars and poles in the streets. By virtue of the power granted, appellant did construct its viaduct over said Lake avenue and Ninth street at their intersection. The viaduct at this point is twenty-five feet high and to support it, appellant erected three steel posts at the northeast corner of the said street intersection in the shape of a tripod, the posts being fifteen feet apart. One post was placed at the northeast corner of the streets made by the intersection; one east of the curb line on Ninth street and one in Lake avenue. The posts were of iron about one foot in diameter and were placed within the curb line of the streets leaving a sidewalk space on Lake avenue of about twenty feet and on Ninth street of about twelve feet.

The testimony produced on the part of appellee tended to show that the erection of the viaduct and the steel supports in close proximity to the property would obstruct the air, light, view and access to the property and thereby damage it; that the corner abutting on Lake avenue and Ninth street while not now improved by a building was suitable and adapted to a building for business purposes; that the supports were so placed as to prevent free access to the corner, or to a building on the corner, and would in a degree affect the light and view to such a building and if the building were of two stories the structure would affect the view O from the upper story. Upon a careful reading of all the evidence we are of opinion the structure would so affect access to the property, and the light and view, as materially to lessen its value.

It is further contended, that the structure having been erected by authority of the city council and there being no proof it was negligently constructed or operated, there can be no recovery.

Since the constitution of 1870 private property cannot be taken or damaged for public use without just compensation. Physical invasion of the property is not necessary but the damages sustained must be such as are not common to other property. Street railways are not only a convenience but a necessity in city transportation and their construction and operation in the public streets must be borne by abutting property owners without compensation unless consequences result in damage to their property which is not common to the public generally. City of Chicago v. Burcky, 158 Ill. 103.

The obstruction of light, air, view and access to property abutting on a street whereby it is injured, is an element of damage not common to other property generally affected, and they come within the protection of the constitutional provision that private property shall not be damaged for public use without just compensation. Kotz v. I. C. R. R. Co., 188 Ill. 578.

“While a city may (as in this case) lawfully grant to an elevated railroad by ordinance the right to construct its railroad in its streets, it is powerless to grant to such company the right to damage the property of the abutting owner, and when the property of an abutting owner is damaged, his right under the constitution to compensation is not confined to a recovery for the tortious acts of the railroad company, but he may recover for an injury to his property which is the result of an act which is perfectly legal.” Aldis v. Union El. R. R. Co., 203 Ill. 567; Calumet and Chicago Canal and Dock Co. v. Morawetz, 195 Ill. 398. And this is true whether the railroad is a street railroad or a commercial one. Aldis v. Union Elevated R. R. Co., supra.

The case of Aldrich v. Met. West Side El. Ry. Co., 195 Ill. 456, cited and relied on by appellant, involved entirely different principles. There the railway company had erected it's structure upon its own land and having been carefully constructed and operated, was in no sense a nuisance, and the same rules of law applied as would apply to an individual erecting a structure upon Ms own land. There could be no recovery for the presence and operation of the road; and as said in the Aldrich case supra, the court expressly declined to consider the question of the rights of an abutter where the road was constructed in the street in front of his property.

Without extending a consideration of this question, it is clear from the authorities cited, that an abutting owner on a public street may recover just compensation for damage to his property such as the testimony shows resulted to appellee by the construction and operation of appellant’s viaduct, and the court did not err in refusing to direct a verdict-for appellant.

Appellee was allowed to prove over the objection of appellant the rental value of the property before and after the erection of the structure. The viaduct was in the nature of a permanent structure and the correct measure of damages was the difference between the fair cash value of the property before and after its erection. It was not sought to recover any loss of rents and the evidence was admitted as a circumstance tending to show a depreciation in the cash value of the property. The jury were limited by. the court’s instruction to the proper measure of damages, and were told by instruction the only elements of damage they should consider was the obstruction of air, light, view and access. As an element of damage tending to show a reduction in the value of the premises, we think there was no error in admitting the evidence and in view of the instructions on the measure of damages, the jury could not in estimating damages have been misled into allowing any sum for loss of rents. City of Chicago v. Pulcyn, 129 Ill. App. 179.

Appellant offered to prove by cross examination and by its own witnesses a general business depression in the city resulting in considerable vacant property and resulting in a depreciation of rental values, to which the court sustained an objection. This offer was made to meet the testimony introduced by appellee as to the depreciation in rents caused by the viaduct.

This proposed testimony was proper and admissible and should not have been excluded. As an element of the damages, appellee had shown that the rental value of the property had depreciated after the construction of the viaduct and appellant had the right to show if it could that such depreciation was not wholly due to the structure and to what extent other causes had contributed to affect the rental value. C. B. & Q. R. R. Co. v. McGinnis, 79 Ill. 269. The verdict was for the sum of $2,500 of which $500 was required to be remitted and although appellee’s instruction as above stated limited the damages to the difference in the value of the property caused by an obstruction of access, view, light and air, the testimony of rental values was before the jury for consideration and was well calculated materially to enhance the damages. We are of opinion that to exclude the evidence was prejudicial error. R. R. Co. v. McGinnis, supra.

The only evidence of title in appellee was the oral testimony of the witness Nordhouse that appellee was in possession of the property when the viaduct was built and had been in possession since 1893 and that she claimed to own the property and to have a deed, and of the testimony of other witnesses that shé was in possession. Appellant offered a deed from appellee to Nordhouse conveying the property which was excluded by the court. The admission of the deed would have cured any lack of proof of ownership in appellee, but we are inclined to the opinion that evidence of exclusive possession since 1893 claiming ownership was sufficient to raise the presumption that appellee was the owner for the purpose of this case in the absence of evidence of title, claim or possession in another.

We have examined the instructions refused and given covered by the assignment of errors and as they may upon another trial conform to the views expressed in this opinion no consideration of them is necessary. The action of the court in permitting the jury to view the premises was not erroneous.

For the error indicated in the exclusion of the evidence offered by appellant upon the question of rental values, we feel the case, should be reversed and remanded for another trial.

Reversed and remanded.


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    Henry O. Tonsor et al., Appellees, v. Fidelity & Deposit Company of Maryland, Appellant.
    1. Pleading—when declaration upon bond insufficient. In an action upon an indemnity bond by which the only obligation assumed was to indemnify the plaintiffs against any loss that they might sustain by reason of any personal act of larceny or embezzlement committed by the incumbent of a public office, a .declaration is insufficient which contains no averment that such incumbent committed an act of larceny or embezzlement.
    2. Pleading—when plea after demurrer overruled does not cure declaration. A defendant by pleading over waives error in overruling a demurrer but does not waive substantial defects contained in the declaration.
    3. Assignments ox error—when sufficient to save question of sufficiency of declaration. The question whether a declaration is substantially insufficient may be considered under the assignments of error that the court erred in rendering judgment against the defendant.
    4. Practice-—when propositions of law inartificial. A proposition of law should state a rule of law only and in no case assume the existence of facts in dispute.
    5. Bonds—wh-at sufficient to establish liability under indemnity. An indemnity bond which insures against loss arising from embezzlement or larceny by the incumbent of a public office may be enforced by proof that such incumbent took money with felonious intent to convert it to his own use; it is not essential that there shall be proof of any malice, malignity, villainy or depraved heart; the burden, however, to establish the embezzlement or larceny is upon the obligees in the bond.
    Action of debt. Appeal from the City Court of East St. Louis; the Hon. M. Millard, Judge, presiding.
    Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed November 12, 1910.
    John J. Brenholt and E. W. Eggmann, for appellant.
    B. H. Canby, for appellees.
   Mr. Justice Shirley

delivered the opinion of the court.

This is an appeal from a judgment recovered against appellant in an action of debt by appellees, Henry O. Tonsor. et al.

On January 27, 1905, one Green Parker having been elected township collector for the town of Alton, and being required to furnish an official bond in the penal sum of $280,000, arranged with appellees to become his sureties, and to secure them against loss for any personal act of larceny or embezzlement by him during his term of office, he gave appellees an indemnity bond in the penal sum of $50,000, which bond was furnished by appellant as the surety of Green Parker.

There came into the hands of Parker as such collector the sum of $1,045.52 in excess of his commissions which sum he retained and did not pay according to the conditions of his official bond, whereupon suit was brought against him and the appellees as his sureties. A judgment was recovered and appellees were compelled as such sureties to pay the amount so retained and not paid over; also interest and costs.

It is alleged in the declaration that appellant by its bond obligated itself to secure appellees against any loss they might sustain by reason of any personal act of larceny or embezzlement by said Green Parker in the discharge of his duties as such collector; that said Parker collected moneys as such collector and retained the sum of $2,545.52 as his commission; that the town of Alton brought suit against him and appellees his sureties on said collector’s bond to recover the sum of $1,045.52 retained by Parker in excess of his lawful salary of $1,500. The declaration further averred appellees had no notice of the retention of said sum until served with summons when they immediately gave notice to appellant, and that they would hold it responsible ; that they defended said suit in which judgment was finally rendered against them for the amount and costs; that Parker did not pay said judgment and that appellees did pay it; that they paid out the sum of $1,500 in defending the suit, and praying for judgment.

A general and special demurrer was' interposed to the declaration, and for one of the causes of demurrer it was alleged there was no sufficient assignment of a breach of the writing obligatory declared on, which writing was made part of the declaration.

The demurrer was overruled and appellant pleaded over that there was a non-compliance with the terms of the bond on the part of appellees in failing to give notice with full particulars and in failing to file an itemized statement, and in failing to make claim of loss as required, and that appellees without consent of appellant entered into an agreement with Parker, whereby he withdrew from the bank the sum of $1,045.52 deposited there to secure appellees. The pleas further averred there was no waiver of any of the conditions of the bond. Replications were filled traversing the pleas. Upon the issues thus made, a jury was waived and the court upon hearing the evidence, found the issues for appellees assessing the damages at the sum of $1,820.39, upon which a judgment was rendered.

The action was debt on specialty, and without setting forth the several conditions of the bond, it is sufficient to say the only indemnity undertaken and assumed by appellant was to indemnify appellees against any loss they might sustain by reason of any personal act of larceny or embezzlement committed by Parker in the discharge of his duties as such collector. There was no averment in the declaration that Parker committed any act of larceny or embezzlement, and therefore no breach of the condition of the bond was assigned, and the court should have sustained the demurrer. That Parker was so guilty was not confessed by the pleas, and there was no issue before the court presenting the question of appellant’s liability arising upon the obligation of the. bond.

The declaration was insufficient to sustain a judgment, and while appellant by pleading over waived its demurrer and the right to assign error on the court’s ruling on the demurrer, it did not waive substantial defects in the declaration which would make the declaration insufficient to sustain the judgment. And the question whether it was so insufficient may be considered under the assignments of error upon the record that the court erred in rendering judgment against appellant. C. & A. R. R. Co. v. Clausen, 173 Ill. 100. The cause was tried by the court without a jury and there was an exception to the rendition of the judgment. Section 61 of the Practice Act provides that “Exceptions taken to the decisions of the court upon the trial of causes in which both parties agree that both matters of law and fact may be tried by the court * * * shall be deemed and held to have been properly taken, and allowed and the party excepting may assign for error * * * any decision so excepted to, whether such decision relates to receiving improper or rejecting proper testimony, or the final judgment of the court upon the law and the evidence. ’ ’

Error is assigned upon the court’s ruling on propositions of law. The court held for appellees that the evidence showed a waiver by appellant of the requirements of the bond as to notice by registered letter and as to filing an itemized claim sworn to. Whether there was a waiver was a fact in dispute and while we would not be disposed to regard the holding of the proposition error if supported by the facts, still a proposition of law should state a rule of law only and in no case assume the existence of facts in dispute. Lord v. The Board of Trade of Wichita, 163 Ill. 45. There was no error in refusing the 6th, 7th, 8th, 9th and 10th propositions asked. They were all immaterial except the 10th and that was defective in not having in it the element of waiver.

By proposition No. 11, the court was asked to hold that it was incumbent on appellees to prove that as collector he was guilty of personal acts of embezzlement or larceny of the funds of the town of Alton during the period from January 23, 1905, to May 1, 1905. It was incumbent on appellees to prove Parker was guilty of acts which in law constituted larceny or embezzlement of the funds coming into his hands as collector during such period. By the terms of the bond the indemnity was limited to such period and- the court should have held the proposition.

By the 13th proposition refused, the court was asked to hold that to constitute larceny or embezzlement in the meaning of that term as used in the bond in issue, there must be a felonious stealing, taking and carrying away of the personal goods of another, and that the act must be malignant, malicious, villainous or proceed from a depraved heart or evil purpose. The material question was whether Parker as collector had been guilty of larceny or embezzlement of the money and this was all the proposition needed to contain. It was not essential there should be any malice, malignity, villainy or depraved heart to constitute larceny. If he took the money with the felonious intent to convert it to his own use, it was larceny. The proposition was properly refused.

We think the 14th and 15th propositions state correct principles and should have been held. We are unable to find any sufficient evidence upon which to base the 16th proposition refused. The court should have held the 17th proposition and properly refused the 18th. There was evidence tending to show a waiver and this element should have been incorporated in the 18th.

.In view of the necessity of another trial of this case, we have given some consideration to the propositions of law held and refused. The case seems to us to involve only the question of the embezzlement or larceny by Parker (of the funds received by him as collector) between January 23, 1905, and May 1, 1905, and whether there was a failure to comply with the conditions of the bond as averred in the pleas, and if there was a failure whether there had been a waiver of such conditions. By the terms and conditions of the bond, the burden is upon appellees to show by a preponderance of the evidence that there was. an embezzlement or larceny by Parker of the funds received by bim as collector during the time aforesaid, and if there were any breaches of the conditions of the bond that they were waived, and that appellees have been compelled to make good the money so stolen or embezzled.

We express no opinion as to the evidence upon these questions and the judgment is reversed and remanded with directions to sustain the demurrer to the declaration.

Reversed and remanded.


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    G. H. Becker, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Comity—when judgment of court of sister state will he disregarded. The “public acts” of this state are of as much dignity as the judicial proceedings of any other state and if the laws of this state create obligations between its own citizens such obligations are supreme and will not in effect be nullified unless they are in contravention of the organic law. A judgment of a sister state will be disregarded if to enforce and recognize such judgment would in effect nullify the obligations imposed by law in this state between citizens thereof.
    2. Garnishment—when exemption enforced in favor of debtor. If an action in attachment has been instituted in another state and the employer served therein as garnishee, such employer, under the statute of this state, upon due demand made by the employe for his exempt wages, must recognize such demand and pay the exempt wages regardless of apprehension that judgment notwithstanding payment will be rendered against it in the sister state.
    3. Exemptions—when incident of debt. Where the creditor, debtor and garnishee, are all residents and doing business in the same state, and both debts are created and intended to be payable in that state, the exemption of wages is such an incident and condition of the debt from the employer, that it will follow the debt, if the debt follows the person of the garnishee into another state, and attach itself to every process of collection in any state unless jurisdiction is obtained over the person of the" debtor; that it becomes a vested right in rein which follows the debt into any jurisdiction where the debt may be considered as going.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Marion county; the Hon. J. C. McBride, Judge, presiding.
    Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed November 12, 1910.
    W. W. Barr and Charles E. Feirich, for appellant; W. S. Horton, of counsel.
    C. F. Dew and A. D. Rodenberg, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

This case originated before a justice of the peace. In the trial in the Circuit Court on appeal, a jury was waived and the court found the issues for appellee and rendered a judgment against appellant for the sum of $43.56.

No controversy arises upon the facts. Appellee was a citizen of and resided in Illinois and had been employed as a brakeman" by appellant on its line between Centralia and Mounds. He was the head of a family residing with the same. On July 17, 1909, he applied for payment of his wages then due, and payment was refused on the ground that a garnishment summons had been served on appellant Upon refusal of appellant to pay, appellee on the same day delivered to appellant his affidavit, that he was the head of a family residing with the same and demanding the payment of Ms wages exempt by law. The sum demanded by appellee was for the wages dne him for work during the months of June and July and was less than his legal exemptions.

The defense interposed by appellant and as disclosed by the evidence shows that a firm of the name of DeBower, Chaplin & Co., of Chicago, Illinois, had an account against appellee amounting to $32 which it had assigned to one Miller of Kansas City, Missouri. On July 9,1909, Miller began a suit in attachment against appellee before a justice of the peace in-Kansas City and summoned the appellant as garnishee. The service of the summons was had on appellant on July 10th and on July 22nd, appellant by sworn answer, answered that it was a railroad corporation organized under the laws of the State of Illinois; that at the time of the service of the summons it owed appellee $56.72; that by the laws of Missouri the court had no jurisdiction of the cause; that appellee was a resident of the State of Illinois, the- head of a family residmg with the same; claimed for him the benefit of the exemption laws of the State of Illinois, and prayed to be dismissed. On August 20th, the justice overruled the motion to dismiss, denied the claim for exemptions, and rendered a judgment against appellant in garnishment for the sum claimed and costs, which was paid by appellant.

Appellant, appellee and DeBower, Chaplin & -Co. were all residents of this state in which the wages were earned, and appellee was never in the State of Missouri, and there was no personal service upon him in the garnishment proceeding and no actual notice to him except, that when he went to get his wages, he was informed by appellant they had been garnisheed.

The transcript of the proceedings at Kansas City shows constructive service upon appellee there, by posting notices in conformity with the laws of Missouri, and upon an examination of the transcript we are of opinion that the steps taken in the garnishment proceeding substantially conform to the formalities of the Missouri Statutes.

Section 14, chapter 62, Revised Statutes of Illinois, provides: ‘ ‘ The wages for services of a wage earner who is the head of a family and residing with the same to the amount of fifteen dollars per week shall be exempt from garnishment. All above the sum of fifteen dollars per week shall be liable to garnishment. Every employer shall pay to such wage earner such exempt wages not to exceed the sum of fifteen dollars per week of each week’s wages earned by him when due upon such wage earner making and delivering to his employer his affidavit that he is such head of the family residing with the same, notwithstanding the service of any writ of garnishment upon such employer, and the surplus only above such exempt wages shall be held by such employer to abide the event of the garnishment suit. ’ ’

Many cases have arisen in which creditors and pretended creditors have sought to escape the provisions of the exemption laws of one state by process of attachment and garnishment of the.wage earners’ wages in another state, and where the courts of the other state generally of inferior jurisdiction, have refused to give any force or effect to the exemption laws of the state where the wages were earned and where the wage earner lived, and have sometimes ignorantly or corruptly refused to observe the plain provisions of the statutes of the state where the proceedings were instituted. The debtors subject to garnishment in such cases have as a rule been railroad companies operating-in two or more states. The attaching creditor in the foreign state secures his judgment in garnishment, and when the wage earner attempts the recovery of his wages it is sought to escape payment by invoking the clause of the Federal Constitution which provides, that “Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state;” and the question presented is, can this clause be interposed as a defense here.

At the time appellee demanded his wages and filed his affidavit required by the statute above quoted, there was no judgment against appellant, but there had been a summons served upon it. When appellee made the demand, the statute required appellant to pay the wages due and exempt notwithstanding the garnishment. The courts of this state will not abrogate its own laws out of consideration for the proceedings in courts of other states.

Its laws creating obligations between its own citizens are supreme within its jurisdiction and will not in effect be nullified unless they are in contravention of the organic law. The statute requiring appellant to pay notwithstanding the garnishment proceeding fixed its obligation to pay them, which was not and could not be changed by any subsequent judgment against it. If the plain provisions of the statute are to be regarded, it is the duty of the employer to pay when the proper demand is made for exempt wages, and to interpose its defense in the foreign state setting up all the facts of the exemption and its enforced obedience to the laws of this state, and it is not to be assumed the courts of the foreign state will refuse to give full faith and credit to the “public acts” of this state. The “public acts” of this state are of as much dignity as the judicial proceedings of any other state.

The mischief sought to be remedied by the statute was to protect the wage earners of this state whose employers operated in several states from having their exempt wages taken from them by garnishment process. The wage earner was helpless to protect himself in the proceeding in another state, He could not attend the trial far distant from his home to defend against dishonest and fraudulent claims against him or to claim his exemptions and the Legislature wisely enacted the statute requiring the employer to pay him his exempt wages on demand, and casting the burden upon the employer to make its defense in the state where by exercising its franchise it subjects itself to the process of garnishment, and where its employee does not reside and is unable to defend.

It is no answer to the obligation imposed by the statute on the employer when the wages are demanded, that by an apprehended judgment of a court- of a foreign state it may be compelled in garnishment proceedings to pay it again. The burden is upon it to pay at once on demand, and to make its defense in the foreign courts. It was no defense that at the time the exempt wages were demanded, garnishment proceedings were pending and that subsequently there was a judgment against appellant.

There is another reason why it was no defense. “Where the creditor, debtor and garnishee, are all residents and doing business in the same state, and both debts are created and intended to be payable in that state, the exemption of wages in such an incident and condition of the debt from the employer, that it will follow the debt, if the debt follows the person of the garnishee into another state, and attach itself to every process of collection in any state unless jurisdiction is obtained over the person of the debtor; that it becomes a vested right in rem which follows the debt into any jurisdiction where the debt may be considered as going.” Drake v. L. S. & M. S. Ry. Co., 69 Mich. 168; B. & O. S. W. R. R. Co. v. McDonald, 112 Ill. App. 391, and cases cited.

While the foregoing principle may be regarded as something of a refinement of reasoning, it is announced by very respectable authority and approved by this court in the McDonald case, supra.

‘‘ The exemption of wages by the law of the state in which is the residence of both debtor and creditor and the place where the wages are payable, cannot be defeated by garnishment pending in another state although the debtor is a railroad corporation which has a residence also in such other state.” Ill. Cent. R. R. Co. v. Smith, 70 Miss. 344.

We are aware there is an irreconcilable conflict of decisions in garnishment proceedings where the debtor is a non-resident, and not personally within the jurisdiction of the court, and it would be vain to attempt to reconcile them or to comment upon them, but in the light of our statute which is a beneficent one, and under the facts of this case, we believe the view expressed in this opinion is a correct interpretation of the statute, and that the clause of the federal constitution above quoted cannot be invoked to nullify a statute fixing the rights and obligations between citizens of this state.

The judgment of the Circuit Court will be affirmed.

Affirmed.


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    K. D. Horrall, Appellant, v. Thomas Brassie et al., Appellees.

      Garnishment—when execution insufficient to support. An affidavit in garnishment is insufficient to support a garnishment proceeding where predicated upon a return of execution made by order of the plaintiff’s attorney "no property found and no part satisfied.” An execution in order to support the proceedings should show that the legal remedy provided thereby has been exhausted.
    Garnishment. Appeal from the Circuit Court of Richland county; the Hon. E. E. Newlin, Judge, presiding.
    Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed November 12, 1910.
    John Lynch and J. C. Howard, for appellant.
    H. G. Morris and R. S. Rowland, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

Appellees were summoned as garnishees upon the affidavit of J. E. Howard, attorney for appellant, in which it was charged that appellant had obtained a judgment against J. C. Yon Almen and others hereinafter called the debtors, for the sum of $471.41 and costs; that an execution had been issued on December 8,1908, and returned on January 8,1909, “no property found.” The affidavit charged that appellees were indebted to said debtors. Upon this affidavit a summons was issued against appellees as trustees of St. Joseph’s Roman Catholic Church of Olney, Illinois, commanding them as garnishees to answer.

Appellees answered the interrogatories filed by appellant, setting forth they were not indebted to said debtors; that at the time of the service of the summons herein, they were impleaded in a cause in the County Court of Richland county as garnishees wherein the creditors of the debtors obtained a judgment against them and they were compelled to pay all the moneys in their possession claimed to be due the debtors to said other creditors; that at the time of the service of summons herein the claim of the debtors was unliquidated and uncertain and was not the subject of garnishment; that there was no valid judgment upon which a garnishment proceeding could be based, and that the return upon the execution of “no property found” was not sufficient to support the affidavit for summons or the garnishment proceedings in this case.

When the execution and return thereon was offered in evidence appellees objected to its introduction upon the ground of it’s insufficiency upon which to found an affidavit of garnishment. The objection was overruled at that time but the court found in its final order and judgment that the affidavit was insufficient and dismissed the proceedings at the cost of appellant. If the court committed no error in this, it will not be necessary ..to consider other questions raised by the answer and by the assignment of errors.

It appears from the evidence that the execution was issued against the debtors on December 8, 1908, and returned on January 8th following. The return endorsed by the sheriff upon the back of the execution was as follows: “I hereby return this execution by order of plaintiff’s attorney. No property found and in no part satisfied.”

While the execution was in the hands of the sheriff on December 16, 1908, each of the defendants therein, M. B. VonAlmen, J. C. VonAlmen and Bobert VonAlmen, made a debtor’s schedule of all his personal property of every kind and character including money on hand and debts due and owing to him and after making oath thereto, delivered the same to the sheriff. Each of said debtors was the head of a family residing with the same except one. It does not appear that any effort was made by the sheriff to find other property than that included in the schedules belonging to the debtors or either of them, nor were appraisers selected. Nor was there any evidence of the value of the property scheduled. Nor does it appear there was any demand made upon the debtors or either of them.

So far as appears from the evidence, there may have been other property than that scheduled subject to the execution, and so far as appears, the property scheduled may have been of greater value than could have been selected by the debtors under the exemption law. All the sheriff did was to receive the schedules without making any demand or any effort whatever to find property upon which to levy the execution. The return by order of plaintiff’s attorney, “No property found and no part satisfied” does not show the sheriff made any effort to collect the judgment.

The return of the sheriff in this case is nowise different in substance from the return in the case of Scheubert v. Honel, 152 Ill. 313. In that case the return on the back of the execution was as follows:

The sheriff will return this writ no property found and no part satisfied forthwith. Jas. E. Gross Atty. for. Plaintiff. ” •

“This execution returned no property found and no part satisfied. Canute B. Matson Sheriff.”

In that case it was held the return of the sheriff endorsed on the execution failed to show that the legal remedy had been exhausted but that on the contrary it appeared from the endorsement of the attorney and the return of the sheriff that the latter had made no effort whatever to collect the judgment but the return was in substance the act of the attorney, in doing which the sheriff exercised no responsibility.

It was further there held it must be shown the execution was returned unsatisfied by reason of the inability of the sheriff to find property on which to levy. The sheriff may make a return of a writ at an earlier day than that which limits the life of an execution “but in order for him to do so and create a basis for equitable remedies, his return must show on its face or by clear inferences that it is his own act in order that it may be made to appear or the presumption to arise that legal remedies have failed.” Pecos Irrigation & Imp. Co. v. Olson, 63 Ill. App. 313.

“The officer who does not obtain anything toward the satisfaction of the "writ must make a return in which it is directly stated or from which it must be necessarily implied that the defendant has not property subject to the writ. * * * The most usual obstacle met by officers is their inability after due search to discover property subject to the writ. Where this has been the case and it becomes necessary to return the writ wholly or partly unexecuted, the officer must exonerate himself by stating clearly and unequivocally that the writ is returned unsatisfied because the defendant has no property subject to its satisfaction.” Freeman on Executions, Sec. 356.

“These rules are in no adequate way met by a return made within the lifetime of an execution and without demand which shows on its face that it was made by direction of the plaintiff and from which nothing appears to indicate that any effort was ever made to find any property.” Pecos Irrigation & Imp. Co. v. Olson, supra.

In this case we have pointed out that there was no demand, and no effort to find property and the return showing upon its face that it was made within the lifetime of the execution by order of plaintiff’s attorney there was no basis for the equitable remedy of garnishment and the order and judgment of the Circuit Court was correct and will be accordingly affirmed.

Affirmed.