text:
    Frank E. Furst, Appellee, v. W. T. Rawleigh, Appellant.
    Gen. No. 5280.

      Cobpobations—what does not justify refusal to permit examination of boohs by stoehholder. A refusal to permit a stockholder to examine the books of a corporation is not justified because of the fact that to permit such examination might result in business competition; the fact that such stockholder is interested in a rival competing company does not necessarily indicate an unlawful and improper purpose in seeking inspection of books of account and records.
    Mandamus. Appeal from the Circuit Court of Stephenson county; the Hon. James S. Batjme, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed May 18, 1910.
    Statement hy the Court. On April 16, 1908, Frank E. Furst. filed a petition in the Circuit Court of Stephenson county for a writ of mandamus to compel W. T. Rawleigh, president and treasurer of the W. T. Rawleigh Medical Company, an Illinois corporation, to permit him or his attorney to examine the books of account and records of the said company.
    The petition alleged that Furst was a stockholder in the company and that Rawleigh had control of its books and records; that Rawleigh informed him in December, 1907, while he was a stockholder and director of the company, that he would not be permitted to inspect the books and records; and that in March, 1908, he demanded permission to inspect them and was refused; that in April, 1908, he made a demand upon Rawleigh to see said books and records and was refused. The petition concludes with a prayer that a writ of mandamus issue, directed to W. T. Rawleigh as president and treasurer of said corporation, commanding him to permit the petitioner to inspect all the books of account and records of said corporation over which he had control.

      Bawleigk’s answer admitted that he was president and treasurer of the corporation and averred that its books and records were under the control of its secretary; that the company had an authorized capital stock of $1,000,000, of which $512,000 par value had been issued; that the petitioner owned thirty-five shares of the par value of $100 each; that the business of the company was making and selling medicines, extracts and essences through about eight hundred salesmen; that it had about fifty kinds of medicines and proprietary articles put up according to certain secret formulas invented by them and known only to its employes ; that it had spent a large amount of money in experimenting and perfecting the same; that for five years prior to the first day of January, 1908, the petitioner was in the employ of the said company and for the last three years of his employment was general manager and had access to the books of account and was familiar with its financial condition; that as director he participated in all the meetings of the directors and stockholders; that on January 1, 1908, he left the employ of said corporation, and with others organized a corporation known as the Furst-McNess Company for the purpose of manufacturing and selling articles in competition with the Bawleigh Company; that one of the motives of the petitioner was to procure a working knowledge of the new products put out by the company find of its new salesmen; that at the annuel meeting April 6, 1908, defendant as president, submitted his annual report showing a complete statement of the finances of the company for the year ending February 29, 1908; that petitioner was present and made no objection; that the business of the company amounted to about $750,000 per annum; that one of petitioner’s motives was to harass, annoy and to interfere with the proper conduct of the business and that such examination would result in great annoyance and interference with the conduct of the business of said company; that the knowledge so obtained by the petitioner would destroy the value of the formulas, and of the capital stock represented by them; that the motive of the petitioner was improper and illegitimate. The answer concluded with a prayer in the nature of a demurrer.
    The petition was amended stating the facts more in detail and alleging that the petitioner’s motives in seeking the inspection were proper and legitimate; that he had no desire to harass said company or to interfere with its business except so far as might be necessary to protect his rights as a stockholder; that at two different periods during the last year the sum of $20,000 had been set aside subject only to the personal cheek of W. T. Eawleigh; that if the petitioner were permitted to inspect the books and records of said corporation, he would be able to ascertain whether said sums had been converted to other uses than those of the corporation; that, notwithstanding the fact that the profits had increased and accumulated, there had been paid on its common stock since August, 1905, but two dividends of five per cent each; that one of these dividends was paid in July, 1907, at which time petitioner was a director of said corporation; but that the amount of said dividend was not determined nor said dividend declared by the board of directors at any meeting at which the petitioner was present; that said board of directors never voted on the amount of said dividend nor on its declaration or payment at any legal meeting, but that the amount and payment of said dividend was determined by W. T. Eawleigh; that said Eawleigh had stated that he would so manage said corporation that it would not pay larger dividends than five per cent so long as petitioner was a stockholder; that he had stated to the petitioner that said corporation would not pay larger dividends than five per cent for a great many years; that the petitioner believed that said corporation was earning not less than forty per cent per annum on the par value of the common stock and that there was on hand a large cash balance available for the purpose of paying dividends, but that the last annual statement of said corporation issued to its stockholders in April, 1908, was so devised as not to show the amount of cash on hand, and that said statement was intentionally so made in order to conceal from the petitioner the amount of cash on hand; that Rawleigh could and would compel the petitioner to sell his stock at a sacrifice; that Rawleigh dominated and controlled the board of directors; that their meetings were simply held to ratify his decisions; that he stated that he expected and intended the board of directors to carry out his wishes; that after a protest as to such management, petitioner was not notified of directors’ meetings except the annual meeting at which the officers were elected; that while petitioner was general manager he was not in charge of the business and never had complete and full access to all the records and books of account of said corporation, but depended for information upon the reports and statements which were furnished by the bookkeeper; that upon his tendering his resignation on December 1, 1907, to take effect January 1, 1908, defendant instructed the bookkeeper to cease furnishing the petitioner with reports and statements of the conditions of the business; that h.e wished to ascertain the true financial condition of the corporation and if there were not funds on hand which should be distributed to the stockholders as dividends and if there were any record of what became of the two sums of $20,000 and to find out whether the affairs of said corporation had been conducted in a legal manner. It excepted from the prayer of the petition for inspection, the report register of salesmen, the correspondence and contracts with them and the formulas and secret processes of manufacturing the preparations.
    Rawleigh’s answer was amended admitting that he owned seventy-five per cent of the capital stock of said company, and that he, with his near relatives, over ninety per cent, and denying that two sums of $20,000 each had been set aside subject only to his personal check; but averring that a cash fund had been created for the purpose of taking care of certain additions to the plant and purchasing property; that both five per cent dividends were declared by the board of directors at a regular meeting; that defendant had no more to do with declaring the amount and frequency of said dividends than any other stockholder; that while the petitioner might disclaim any improper motive, yet as an active competitor with a knowledge of the business of the company, even if the secret formulas and processes were not disclosed to him directly, his examination of the bookkeeper’s and treasurer’s accounts would disclose a large volume of information in regard to the formulas and processes, thus destroying to a great extent their value; that an examination of such books would also disclose names of the salesmen employed even without an examination of the report register of salesmen; that the petition was for the purpose of forcing defendant or some one largely interested in the company to purchase petitioner’s stock at an extortionate price.
    To the answer as amended, a demurrer was sustained. Thereafter, the answer was further amended by adding the averment that the petitioner had used* the information furnished him at the annual meeting in April, 1908, for the purpose of causing the assessment of the property of the company to be increased more than $30,000. A demurrer to the answer as finally amended was sustained and Eawleigh elected to stand by his answer. The court ordered a peremptory writ of mandamus to issue commanding W. T. Eawleigh forthwith to admit petitioner or his attorney to the office of the Eawleigh Company and give him or them full access to the books of account and records of the company (excepting the corporation records kept by the secretary, to wit: the stockholder’s minute book, the directors’ minute book, the stock certificate book, the stock certificate register, the transfer record of stock certificates, the dividend register, the ledger of stockholders’ accounts, the report register of salesmen, the correspondence and contracts with salesmen, and formulas and secret-processes of manufacturing preparations sold by the company), at all reasonable times from day to'day during business hours, until a complete examination of the financial condition of the corporation should be made by the petitioner or his attorney, and that the defendant pay the costs. Rawleigh excepted and prosecutes this appeal.
    W. N. Cronkrite, for appellant.
    Charles H. Green, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

The question whether or not appellee is entitled to a writ of mandamus to compel appellant as an officer of the W: T. Raleigh Medical Company to permit him to examine the books of account and records of that corporation, is presented by the demurrer to appellant’s answer to the petition. Appellee was a stockholder owning $3,500 at its face value of the capital stock. He had large interests to protect and the right to inform himself as to the affairs and conditions of the company, if necessary by the examination of the records and books of account of the company at any reasonable and proper time. The petition was amply sufficient, and unless it can be said that the 'answer showed sufficient reason for refusing the writ, the judgment of the Circuit Court must be affirmed.

The rights at common law of the stockholders of a corporation to examine its books and records, and the effect of section 13, chapter 32 of the Revised Statutes of this state upon the common law right, are fully considered in Stone v. Kellogg, 165 Ill. 192, a case similar to the one at bar. The court there quoted with approval from Foster v. White, 86 Ala. 467, where it was held that a provision of the Alabama statute similar to our own was not merely declaratory of the common law, but was enacted to protect small and minority stockholders against the power of the majority, by furnishing an opportunity and mode to ascertain, establish and maintain their rights, and intelligently to perform their corporate duties; that the only express limitation to the right of inspection of a stockholder under that statute was that the right should be exercised at reasonable and proper times; and that the implied limitation was that it should not be exercised from idle curiosity or for improper or unlawful purposes; that in all other respects the statutory right was absolute; that the statute was founded on the principle that the shareholder had a right to he fully informed as to the condition of the corporation, the manner in which its affairs were conducted and how the capital stock to which he had contributed was employed and managed. The court said in the Stone case: “This interpretation of the statute of Alabama made by the Supreme Court of that state is, we think, a correct one, and is as liberal to the officers and agents of the corporation having the custody of the books, or to the majority of the stockholders or directors under whose orders they may act, as would he permissible to give to our own statute.”

Appellant does not question the authority of Stone v. Kellogg, supra, but contends that the averments in the answer bring the case at bar within the implied limitation, that the right of inspection shall not be exercised for improper or unlawful purposes; and in support thereof argues that up to January 1, 1908, the petitioner, being in the active management of the company, was fully cognizant of its financial condition; that just prior to his filing the petition he was furnished with a statement of the financial condition of the company at its annual meeting; that he had started a competing company; that upon leaving the employ of the company, he carried away monthly and weekly statements that had come into his hands as manager, and that in so doing, his motive was sinister; that he had used the statements furnished him as a stockholder in procuring an increased assessment of the property of the company.

The petition alleged that appellee never had complete and full access to all the records and books of account of the company; that the annual statement did not show the amount of cash on hand; and this was not denied by the answer. The answer admitted that appellant borrowed $10,000 from the company, and averred that it was paid back with interest, but at what rate of interest the answer did not state. The petitioner had a right to know what use was being made of the money in which he had an interest and what the income from it was, and was not obliged to rely upon appellant’s report for the information when an inspection of the books and records would show the actual condition. The averment in the answer upon which appellant bases his charge that appellee’s motive was sinister in carrying away the weekly and monthly reports furnished him while manager, was, that in organizing the Furst-McNess Company, he “used the statements furnished him as an employe of the company for the purpose of showing to capitalists the wonderful money-making prospects of such a business.” The only way in which appellant could1 be thereby injured would be by the creation of competition. As competition is legitimate in business and in accord with public policy, the motive prompting it cannot be said to be sinister. The fact that appellee was interested in a rival and competing company does not necessarily indicate an improper and unlawful purpose in asking inspection of the books of account and records. In Cobb v. Lagarde, 129 Ala. 494, a case similar to the one at bar, an answer was filed charging bad faith, improper purpose, hostility, and that petitioners were owners of and engaged in a rival and competitive business; and the court there said: “The fact of the petitioners being stockholders in a rival concern, and that they may thereby gain some advantage by an inspection of the books of the defendant company, does not necessarily show an improper purpose in making demand for inspection, and will not deprive them, as stockholders, of their right of investigation into the management of the affairs of said company.” Appellee’s purpose in furnishing information from which the taxes of the company were raised cannot be said to be unlawful. His interest had to bear its proportion of the increased tax, and he is to be commended therefor rather than deprived of a legal right. There was no sufficient allegation in the answer from which it can be made to appear from the admission made by the deniurrer that the object and purpose of the petitioner were improper and unlawful or were to injure' the corporation. “It is no sufficient answer to such a petition to impugn the motives of the petitioner.” Stone v. Kellogg, supra. Appellee stated in his petition that he had no desire to see the formulas or become informed of the process by which said Rawleigh’s remedies were prepared; that in seeking said examination he had no intention or desire to see the list of the names of salesmen or any of them in the employ of said W. T. Rawleigh Medical Company, and that he so stated to said defendant, W. T. Rawleigh, said president and treasurer, when he demanded to see said books of account and records; that in these matters he was willing to submit to any reasonable restrictions consistent with due and adequate protection of his own interest, which the court had power to impose. We are of the opinion that the court below sufficiently protected appellant’s rights by the limitations placed upon appellée’s right of inspection; therefore there was no error in sustaining the demurrer to the answer.

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Willis

license: Public Domain

text:
    J. E. Salfisberg & Co., Appellant, v. City of St. Charles, Appellee.
    Gen. No. 5307.
    1. Abchitects—effect of final certificate. The final certificate of a supervising architect or engineer is conclusive evidence of the performance of a contract in the absence of fraud or mistake connected with so obtaining the same and when the contract provides that it shall be; but where the contract does not so provide, the contractor is placed upon his proof to show performance as a condition precedent to recovery.
    . 2. Contracts—when engineer not authorized to permit departure from specifications. The engineer of a municipal corporation is unauthorized to permit a departure from specifications providing for the manner in which public work shall be done; upon the other hand, it is his duty to see that the terms of such specifications are observed.
    Assumpsit. Appeal from the Circuit Court of Kane county; the Hon. Duane J. Cabnes, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed May 18, 1910.

      Certiorari denied by Supreme Court making opinion final.
    Statement by the Court. The city of St. Charles advertised for bids for the construction of a concrete reservoir in connection with a system of water-works which it was building. A proposal to build the reservoir for $5,600 was submitted by J. E. Salfisberg, doing business as J. E. Salfisberg & Co., and the contract was let to him. The reservoir was built on the side of a hill containing clay and limestone in which there were springs, and was about one hundred feet from the Fox river, the surface of which was about ten feet above the bottom of the reservoir. As the work progressed, Salfisberg received two certificates from the supervising engineer aggregating $3,000, which was paid, and upon its completion, a final certificate for $2,600. The contract provided that the final payment should be retained until the work was completed and accepted by the city. The city declined to accept the reservoir and refused to pay the final certificate on the ground that water seeped through the wall, thus rendering the reservoir unfit for use. Salfisberg brought suit in assumpsit in the Circuit Court of Kane county to recover the amount thereof. The declaration consisted of the common counts and a special count that set out the contract, specifications, instructions to bidders, plans and proposal, and alleged that plaintiff entered into a contract with defendant whereby he was to furnish all materials, tools and labor for building a concrete reservoir according to said plans and specifications; and that he performed the contract according to its terms and conditions and completed the reservoir. The city filed a notice of set-off under a plea of the general issue. A jury was waived and a trial was had before the court. The set-off was disallowed, the issues were found for defendant, and judgment was entered against plaintiff for costs, from which he appeals.
    The specifications required that the concrete be mixed by hand on a platform with sufficient water to make a quaking mass and immediately placed in the walls in layers not exceeding eight inches thick, each layer to be thoroughly rammed with iron rammers until the whole was a perfectly solid mass; and that no concrete that had set was to be used.
    Appellant testified that he performed the work in accordance with the specifications with the exceptions of a few minor changes that were made by the consulting engineer; that he told the engineer that it would be better to make the concrete light and slushy; that if so made it would not need tamping; and that this was agreed to and it was put in that way; that it was poured into a wooden form and then spaded; that a spade or shovel was used to make a smooth surface next the form, which was the only ramming done. A number of witnesses testified that after the concrete was poured into the frame and while it was soft, water from a hose was turned into it and that it ran through the frame into the bottom of the reservoir, carrying with it a whitish substance resembling cement; that there was little cement adhering to the gravel and that an excess of water was used; that the walls cracked and were porous and water came in through them. One witness testified that from the lime and magnesium he found in the wall he judged that the cement had either become air slacked or set from getting damp; that in a wall so constructed, the water would dry out of the cement and leave spaces through which water would percolate. Another witness testified that a poor quality of cement was used, and another that there was not enough used. A number testified that a wall so constructed would have no value for holding drinking water. There was proof that, owing to the pressure of the water from the springs and the river, had the reservoir been built in strict compliance with the terms of the specifications, it would not have answered the purpose for which it was intended.
    Baymond & Newhall, for appellant.
    H. GL Hempstead and Irwin & Egan, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

It is clear that the material requirements of the specifications were departed from in the construction of the reservoir and that it did not answer the purpose for which it was intended.

Appellant does not deny either of these facts but contends that the final certificate issued by the supervising engineer was conclusive evidence of the performance of the contract, and that it was not essential to his right of recovery upon such certificate that the work was done in accordance with the plans and specifications; that where a contract provides that work shall be carried on under the direction of an engineei employed by the city and the contractor conforms to changes in the specifications ordered by the engineer, the negligence in ordering snch changes, if any, rests solely upon the city; and the court erred in admitting evidence tending to show that the work was done in a defective manner since the contract provided that the engineer should be the judge of the quantity and quality of the work, and that the court erred in ruling on the propositions of law.

The final certificate of a supervising architect or engineer is conclusive evidence of the performance of. the contract, in the absence of fraud or mistake connected with issuing or obtaining the same, when the contract provides that it shall be. Barbee v. Findlay, 221 Ill. 251, and cases there cited. “To make such a certificate conclusive required plain language in the contract. It is not to be implied.” Mercantile Trust Company v. Hensey, 205 U. S. 298, and cases there cited. In the case at bar the contract contains no such provision. It provides that the contractor should be paid at the end of each month on the engineer’s certificate for all work performed and materials furnished during the preceding month, less fifteen per cent to be retained until the work was completed and accepted by the city; and that upon such acceptance all money due him would be paid by the city. From the provision that the final payment be retained, in our opinion, it is clear that the intention of the parties was that the final certificate should not be conclusive. Even though the instructions to bidders contains, as claimed by appellant, language which may be construed to mean that the final certificate should be conclusive, the language of the contract controls, as it is the later instrument and signed by both parties.

We conclude that the engineer’s final certificate was not conclusive; therefore appellant was not relieved from proving that he had performed the contract substantially in accordance with its terms and those of the plans and specifications, and there was no error in the admission of testimony on behalf of appellee that the work was done in a defective manner.

By the terms of the specifications, the engineer in connection with the board of local improvements, was authorized to dismiss incompetent employes, and given control of the work, which was to be done in strict accordance with the specifications. This did not mean that they might give any orders they might desire, but that they were in charge of the work under the plain terms and conditions of the contract, plans and specifications and were to give such orders as in their judgment would carry out the true intent of such plans and specifications. Sanitary District of Chicago v. McMahon & Montgomery Co. et al., 110 Ill. App. 510, and cases there cited. The engineer’s decision was to be final in case of a dispute in regard to the true meaning of the drawings and specifications. There was no dispute as to what the specifications directed or intended, but the contractor and engineer made up their minds to adopt an entirely different method of constructing the wall than was required by the specifications, and acted accordingly. The engineer testified that he told the mayor of the change and that the latter assented. The mayor, however, denied that he so assented, but testified that he always told the engineer to follow the specifications. Moreover, the mayor was neither the city nor the board of local improvements, but was only one of three members of the latter board. It is not claimed that either the board of local improvements or the city council authorized this deviation from the specific directions in the specifications. The engineer might give directions within the limits of the contract, but no further. If he could change its terms in one particular, he could in all. He not only lacked authority so to do, but it was his duty as agent of the city to see that the contract and specifications were not deviated from in any material particular except with the consent of the parties, and to see that they were faithfully carried out. Adlard v. Muldoon, 45 Ill. 193; Sanitary District of Chicago v. McMahon & Montgomery Company, supra.

Had the proof shown that the city of St. Charles had accepted the work or that it had been performed in substantial compliance with the contract, plans and specifications and tendered to the city, and that the city had unreasonably refused to accept the same, appellant could recover even though the reservoir did not fulfill the purpose for which it was constructed; but when appellant departed from the specifications, and constructed a wall materially different from that called for in the specifications, even though he did it under the direction of the engineer, he took the responsibility of a failure upon himself; and proof that the reservoir would not have fulfilled the purpose for which it was intended had the plans and specifications been complied with, does not relieve him from such responsibility.

As the record discloses sufficient competent evidence to sustain the judgment, we deem it unnecessary to consider appellant’s assignment of error on the ruling of the trial court on the propositions of law submitted.

The grounds urged by appellant for a reversal of this judgment are untenable, and therefore it must be affirmed.

Affirmed.


author: Mr. Presiding Justice Holdom

text:
    Mary Geraldine Neville, Appellee, v. City of Chicago, Appellant.
    Gen. No. 15,031.
    1. Statute of Limitations—tohen not retroactive. The Act which became operative July 1, 1905, providing for notice to cities of injuries sustained, etc., and the commencement of an action thereon within one year, is not retroactive in its effect.
    2. Damages—when award cannot he made for personal injuries. An award of damages for personal injuries will not be sustained if such injuries are not directly traceable to the accident resulting from the negligence charged against the defendant.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Theodobe Bbentano, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed April 18, 1910.
    John B. Caverly, for appellant; Madison B. Harris, David T. Alexander and Bobert B. Baldwin, of connsel.
    T. F. Laramie, for appellee; W. A. Levy, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The plaintiff, Mary Geraldine Neville, when about the age of nine years and on June 18, 1896, while on her way homeward from school, met with an accident through a defect in a plank sidewalk of the 'defendant municipality, over which she passed. In falling below the surface of the walk a sliver from a plank penetrated her sexual organ. She bled considerably and was attended by a physician, under whose care she soon made an apparent recovery from the injury and resumed attendance at school. At about the age of fourteen years she left school and worked in the establishment of a manufacturer of patent medicines, doing office work during a period of three years, with some interruptions. She attended a business college and learned stenography and was afterwards employed as a stenographer in several offices. At the age of- sixteen years she menstruated, as she says,, “with the regular periods, continuing for a couple of days, never longer than three”. On April 6, 1907, plaintiff underwent an operation known surgically as “ovariotomy”. Her fallopian tubes and ovaries were removed. On September 3, 1907, she was again operated upon for a “fissure of the anus”, from which she suffered. Both operations were successful and her recovery was as complete as is usual in successful operations of such a character. Subsequent to these operations plaintiff worked as a stenographer and was so engaged to within a short time of the trial in the Superior Court. It is claimed that the conditions making necessary these painful operations, followed with more or less distressing results, are attributable to the injuries received from the accident of June 18, 1896. Plaintiff was born May 6, 1887. She attained her majority on May 6,1905. This suit was commenced April 23,1907. Defendant pleaded the general issues and a special plea of the statute of limitations in force July 1, 1905. A demurrer to the limitation plea was sustained. A trial resulted in a verdict and judgment for $9,000. The customary objections and exceptions were made and preserved on the overruling of the motion for a new trial and the entry of judgment upon the verdict. By this appeal defendant asks a reversal of the judgment of the trial court and upon sufficient assignment of error argues that the- action is barred by the 1905 statute of limitations; that the injuries of plaintiff did not result from the accident; that defendant was not negligent; that the damages are excessive for the .injuries attributable to the accident, and that the verdict is the result of passion and prejudice of the jury, incited by the remarks of plaintiff’s counsel in his closing address to the jury.

We think the evidence sufficient to justify the jury in concluding that the city negligently maintained the plank sidewalk which injured plaintiff June 18, 1896, and that their verdict as to such negligence is sustained by the evidence. The verdict of the jury is excessive, as we shall hereafter demonstrate, although we fail to find anything in the record justifying the inference that there were improper remarks by counsel to the jury in the final summing up of the case, calculated to incite their passions or prejudice, or that the excessive assessment of damages is in any way attributable to such remarks.

At the time plaintiff attained her majority and was therefore able to commence this action, the limitation statute applicable to actions of this nature barred the right to sue after the lapse of two years from the accruing of the action, saving only the rights of parties resting under legal disabilities. Plaintiff’s disability of minority being removed in the then condition of the law, she had two years in which to begin this action. But thereafter the law making power of the state reduced the period of limitation from two years to one year. The new law became operative July 1, 1905, and this suit initiated April 23, 1907. If the new statute had retroactive effect, then the sustaining of the demurrer to the special plea setting up the one year limitation statute as a bar was error; but if the new law had no retroactive effect, then the ruling on the demurrer was correct, as also instruction 4, which told the jury as a matter of law plaintiff had two years from the attaining of her majority in which to bring her action. By the terms of the Act of 1905 all Acts inconsistent with it were repealed. This limitation Act had other provisions requiring certain notices to be given as conditions precedent to the right to prosecute an action for personal injuries against the City. It is insisted by defendant that the 1905 statute controlled plaintiff’s rights, and that it is a bar to her suit. We have examined the authorities on this subject with some care, and do not extract from them the doctrine that such statutes are retroactive. If defendant’s contention was well taken, plaintiff could not maintain her suit because the time for giving notices required by the Act expired years before the Act took effect, thus making the giving of the notices, essential to the right of recovery, impossible, and re- ' quiring the court, for lack of them, to dismiss the suit. Hathaway v. Merchants Trust Co., 218 Ill. 580, is the latest expression of the Supreme Court on this subject, and is, in our opinion, decisive of the question adversely to defendant’s contention. The Hathaway case is analogous to this. There, as here, the period to initiate litigation had been reduced from two years to one year. Here the action is case for personal injuries, while in the Hathaway case the right to file and have allowed a claim against a testate estate in the Probate Court was involved. There is no distinction in principle, a'nd the rule announced in the Hathaway case is of equal application here and is as controlling and decisive.

An analysis of the evidence in the record fails, in our opinion, to sustain the claim that the permanent and severe complaints suffered by plaintiff are traceable to the injuries sustained as a result of the accident or that such injuries were the proximate or inciting cause of such permanent ailments. So far as the verdict awarded damages for such serious and permanent injuries, it rested largely for its support in surmise and conjecture. From neither the testimony of the attending physician nor the history of the case from the happening of the accident to the time when plaintiff attained to the age of puberty and had her menstrual periods, can it be gathered as an affirmative fact that the diseased condition of plaintiff’s ovaries and fallopian tubes was traceable to the injuries inflicted at the time of the accident. There is nothing of any serious consequence to be gathered from the history of plaintiff’s case following her apparent recovery from the visible injuries resulting from the accident to the time of her maturity differentiating her condition from that of the ordinary normal girl in her sphere of life. She attended school and pursued her studies in the usual way and with satisfactory results for one of her age. She afterwards worked at various callings, including that of a stenographer, after leaving school, with about the same results which ordinarily occur to girls engaged in like or similar avocations. The ovarian difficulties from which she subsequently suffered frequently, it is not denied, afflict young women, both married and single, who have not met with accidents such as the one which occurred to plaintiff. That traumatism is not ordinarily the precursor of such maladies is inferable from the evidence. Stress is laid upon the contention that there was a penetration through the walls of the vagina and that to that fact the diseased ovarian condition of plaintiff is traceable. But the attending physician did not so testify, as we gather from his testimony. He was the only witness examined who had the opportunity of discovering such a condition, if it existed. He testified “that there was no penetration of the walls of the vagina” and further that on his examination he did hot discover any penetration of the walls of the vagina, although he added “but there might have been”. When an opportunity presents itself to ascertain a fact and that fact is not so ascertained, damages cannot be assessed on a presumption of what might have been the fact. Proof of the actual condition establishing the fact cannot be dispensed with. Again, the operating physician testified that in his opinion “an injury such as would likely occur from such violence might cause the conditions which I found at that operation”. This is altogether too indefinite to warrant an assessment of damages. The element of certainty is lacking. The seriousness of such indefinite evidence as to actual conditions is plainly apparent from the testimony of plaintiff’s physician answering, hypothetically on the assumption that the vaginal wall was penetrated as a result of the accident. Answering this question, “Assuming that there was no penetration of the vaginal walls” he said “that would change the history of the case entirely. I based my opinion on the history of the case, and if there was no penetration of the vaginal walls, then I would say that the probability was that there was no penetration of the rectal wall”. The evidence is lacking in affirmatively demonstrating that the ovarian, fallopian and fissure of the anus troubles for the relief of which plaintiff was surgically operated upon, are directly traceable to the accident resulting from the negligence charged against defendant and for which damages in compensation are assessable. When it is borne in mind that three medical men, testifying as experts for defendant, swore that they could not see any causal connection between the injuries described and the ovarian tumor discovered in plaintiff nine or ten years afterwards, the insufficient character of the testimony is apparent. There is no evidence of injury to plaintiff’s womb, ovaries or fallopian tubes at the time of the accident, or that there was any penetration of the vaginal wall at that occurrence. The most serious injury was to the vaginal canal. There is no causal connection between the injuries suffered and the diseased condition of the ovaries and other organs necessitating operations for their removal.

The verdict, in so far as it assessed damages for the maladies suffered by plaintiff for the relief of which she was operated upon surgically, is excessive and not supported by the evidence. The judgment of the Superior Court is therefore reversed and the cause is remanded.

Reversed and remanded.


author: Me. Pbesiding Justice Holdom

text:
    Thomas A. Ennis et al., Appellants, v. Maxwell Edgar, Appellee.
    Gen. No. 15,039.
    1. Chanceby—when estoppel to deny jurisdiction arises. If a party submits himself to the jurisdiction of the court by answering the bill, he will not thereafter be heard to question such jurisdiction.
    2. Mastebs in chanceby—ichen taxation of fees not sustained. The taxation of master’s and stenographer’s fees will not be sustained if the findings of the decree upon which such taxation is predicated are not supported by proof or by agreement of the parties shown in the record.
    3. Appeals and ebbobs—effect of insufficiency of abstract. On review the record will not be examined to ascertain grounds for the reversal of a decree or judgment if the matters found in the abstract do not warrant a reversal of the conclusion of the trial court.
    4. Gambling—what does not taint transaction with. Transactions in grain are not gambling in nature though so intended by one of the parties; if the other party was dealing in good faith along legitimate lines his rights cannot be prejudiced by the intentions of the other party and not acquiesced in by him.
    Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. Chables M. Walkeb, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and remanded with directions.
    Opinion filed April 18, 1910.
    Statement by the Court. Appellee is a lawyer practicing Ms profession in Chicago. Appellants are bankers and brokers under the firm name of Ennis & Stoppani, with offices in Chicago and New York, and are members of the New York Consolidated Stock Exchange and the New York Produce Exchange, the Chicago Board of Trade and the Milwaukee Chamber of Commerce. They do a general brokerage business. In April, 1906, appellee commenced to do business with appellants. Appellants made purchases and sales, upon some of the exchanges mentioned, of stocks and grain, upon the order of appellee and for him. Between April 20, 1906, and October 3rd of the same year, the total dealings amounted in money to $83,-713.65. Appellee paid appellants at various times sums of money aggregating $2,300, and during that time he received from appellants the sum of $1,535. On closing the account October 3, 1906, there was a balance due appellee of $499.64. It will appear from the foregoing financial statement that appellee had lost some money in the deals which appellants made for him. This result it would seem was not pleasing to appellee and he made that fact known to appellants. He demanded from them payment of $2,300 and threatened unless such payment was made to procure criminal proceedings to be instituted against them on a charge of violating the Illinois statute against gambling, and to have, in virtue of such criminal proceeding, the Chicago office of appellants “raided” as a “gambling institution”. In a further effort to enforce appellee’s demand for $2,300 he informed appellants that he possessed “political influence”, by the exercise of which he could make good his threats of “raid” and criminal prosecution. In an effort to avoid the putting into effect such threats, appellants filed their bill and asked for and obtained, without notice, an injunction restraining appellee from taking the criminal action threatened against them. The bill set out the transactions with appellee, averred they were all legitimate and not gambling transactions, and showing a balance of $499.64 in their hands to his credit, and tendered payment of the same. Appellee answered the bill, denying the legitimacy of his dealings with appellants, averring that they were all gambling transactions, charging that appellants had received from him $3,750, and claiming that they should be required to return all moneys which he had paid to them. Appellee also filed a cross-bill setting up facts substantially as averred in his answer and praying for affirmative relief, which cross-bill appellants • answered, denying that any of the transactions were gambling transactions as claimed by appellee. On motion of appellee the injunction was dissolved.
    After the dissolution of the injunction the whole case, as made by the bill and cross-bill and the issues joined on each, was referred to a master to take proofs and report his conclusions of law and fact and also to report oh an award of damages upon the dissolution of the injunction.
    Among other findings of the master are the following: That appellants tendered appellee 10,000 bushels of oats which he had bought through them, and that appellee refused to receive them; that there is no evidence that delivery was made or offered in any of the other transactions; that on appellants’ part every transaction was bona fide; that memorandum was put in evidence showing conclusively not only that each and every transaction was carried out as set forth in the statement, but the names of the persons to whom the sales were made or from whom the stock was bought, was given in evidence; that the transactions lacked only one feature of regularity, viz.: delivery of the commodities to appellee; and the report goes on to say “that it might be urged and cannot be denied, that all the deals in question could be enforced and if demanded the certificates of stock would be delivered in every instance”. The master infers that all of the transactions were gambling and so intended by all the parties. Further finds that there is due from appellants to appellee $764.10, the difference between the sum of $2,300 received by appellants from appellee, and $1,535.90 paid by them to him; assesses appellee’s damages on dissolution of injunction at $300, and recommends a decree in favor of appellee on Ms cross-bill, and that appellants’ bill be dismissed for want of equity. Appellants filed their objections to the master’s report, which he overruled, and they were refiled as exceptions thereto before the chancellor. The exceptions were overruled and a decree entered in' accordance with the findings and recommendations of the master, which also included costs taxed against appellants, including $251 for master’s fees and $40.50 for stenographer’s fees. The last two items of costs the decree recites are with the “consent of all the parties to this suit”.
    Appellants bring the record to this court for review and insist by many assignments (seventeen) of error and in argument that the decree should be reversed in toto, that the transactions involved are not tainted with gambling, but were legitimate dealings made in the usual course of business in accord with the rules and regulations of the various exchanges where the transactions occurred; that the master’s and stenographer’s fees were not taxed by agreement; that the damages for dissolution of the injunction should not have been assessed; that the decree should have been in accord with the prayer of the original bill, and that appellee’s cross-bill should have been dismissed for want of equity.
    F. A. Bingham, for appellants.
    Ossian Camebon and Chesteb Fieebaugh, for appellee.
   Me. Pbesiding Justice Holdom

delivered the opinion of the court.

We will first pass upon what may be regarded as the subsidiary questions arising for our decision. Appellee, submitting himself to the jurisdiction of the court by answering the bill, has eliminated the question of appellants’ right to maintain it. On the other hand, the correctness of the chancellor’s action in dissolving the injunction is not challenged and the evidence on which the master based appellee’s right to an award of damages for its having been improvidently granted is not abstracted. Therefore, notwithstanding the recitation in relation to such evidence in the master’s report found in the abstract, we will not look into the record to find whether the evidence on such assessment sustains the .master’s finding. It is a rule of procedure in this and the Supreme Court, that on review" the record will not be examined to reverse a judgment or decree of the trial court. If the evidence found in the abstract does not warrant a reversal, the conclusion of the trial court will not be disturbed. The taxation of master’s and stenographer’s fees being assigned for error, we look in vain for any evidence sustaining the finding of the decree that such order was “with the consent of all the parties to the suit”. Findings in a decree, unsupported by proof or the agreement of the parties, cannot be sustained.

That appellee in his dealings with appellants was gambling we have the assurance of his testimony which remains in the record uncontradicted. But this, standing alone, does not render the transactions gambling we have the assurance of his testimony fides of appellants in these transactions made doubtful by the testimony of appellee, still appellants have by irrefutable and unchallenged evidence removed such doubt and clearly established, even to the satisfaction of the master, it appears from the findings of his report, that all the dealings in dispute were made by appellants in the usual course of business, and that all the stocks and grain purchased for appellee were paid for and actually received by appellants. Every transaction made for appellee, as is shown by the evidence and found by the master, was a legitimate transaction, and the names of the sellers and purchasers and the prices paid or received and the commodities sold or bought, were all disclosed by the evidence of appellants, which remains unchallenged. But the decree proceeds upon the theory that appellee was gambling, and therefore it is assumed the taint of illegality enters into every transaction with appellants and avoids them under the statutes of this State. The courts in this jurisdiction have uniformly held the contrary to be the law. The transactions, so far as appellants were concerned, were complete, and appellee could have had delivery of any of the commodities at any time he desired them and was ready to pay for them. Because he did not desire delivery or was unable to pay in no wise affected the legitimacy of appellants’ connection with the deals or any of them. As said in Pixley v. Boynton, 79 Ill. 351: “The intent of the parties gives character to the transaction, and if either party contracted in good faith he is entitled to the benefit of his contract, no matter what may have been the secret purpose or. intent of the other party”. The fact that the transactions were for future delivery in no way affected their legality or made them of a gambling nature. Wolcott v. Heath, 78 Ill. 437; Barnett v. Baxter, 64 Ill. App. 546; Logan v. Musick, 81 Ill. 419.

The recent case of Johnson v. Milmine, 150 Ill. App. 208, is literally on all fours with this case. The gambler was a lawyer. The brokers were sought to be tainted with gambling in the deals involved, which were many, because of knowledge imputable to them that the lawyer was gambling, and because of his known limited means, making him unable financially to care for transactions of the magnitude involved. The opinion of Mr. Justice Smith is replete with citation of authority and discussion of legal principles which are controlling of the crucial questions here involved, and to it we refer for support of this opinion.

We think this case comes directly within the holding in Pelouze v. Slaughter, 241 Ill. 215, that the fact that purchases and sales of stock made by brokers for a customer were of great magnitude, in proportion to the wealth of the customer, does not justify an inference of an intention to settle on differences only, where there is no proof of such intention and where the stocks were actually sold and delivered or received and paid for by the brokers, and there was no time when the customer could not have paid the balance due if the value of the stocks were taken into account. Appellants filled all of appellee’s orders by buying or selling the actual commodities involved in each transaction, and there never was a time during their dealings when appellants would not have delivered upon payment. The financial inability of appellee to finance the deals or the fact of his intent to gamble in every order given, can in no wise taint the appellants with the evil intent and purpose of appellee when they have, by positive evidence, shown every transaction involved to have been legitimate and transacted in the usual course of business on the exchanges where the deals were entered into. Appellants made tender of $499.64 by their bill and kept it good by again tendering that sum before the master. They are not therefore liable for costs accruing subsequent to the filing of the bill. The costs of taking testimony before the master and of the taking of depositions, including master’s report and stenographer’s fees, will be taxed against appellee. The decree of the Circuit Court is reversed and the cause is remanded with directions to dismiss the cross-bill of appellee for want of equity at his costs, and to enter a decree on the original bill of appellants for $499.64 in favor of appellee, and that all costs in the Circuit Court subsequent to the filing of appellants’ bill be taxed against appellee.

Reversed and remanded with directions.


text:
    Frank J. Luken, Appellee, v. The Lake Shore & Michigan Southern Railway Company, Appellant.
    Gen. No. 15,047.
    1. Safety Appliance Act—how construed. The State statute providing for the use of automatic couplers being virtually an adoption of the Federal law then in force on that subject, it will be assumed that the law-making power in ingrafting such Federal statute into the law of the State had in mind the decision of the courts in construing the Federal statute, and in faith of such decisions adopted the statute with intent to make the same effective in the manner and to the extent of legal construction theretofore made by the courts, so far as applicable to intrastate railroad traffic.
    2. Safety Appliance Act—what violation of. The use of a car without a coupler which will couple by impact without the necessity of going between the end of the cars, is unlawful. “A car with an automatic coupler that will not work is, to all intents and purposes, a car without an automatic coupler.”
    3. Safety Appliance Act—gist of action predicated upon. The gist of such an action is the hauling of a car with couplers in such a condition that they cannot be coupled or uncoupled without the necessity of going between the cars to do such work.
    4. Safety Appliance Act—what not defenses in action predicated upon. In such an action neither the defense of assumed risk nor that of contributory negligence will preclude a recovery.
    5. Practice—when election between counts erroneously required. Held, that it was error to require the plaintiff to elect whether he would proceed to the jury under a count charging violation of the Federal Safety Appliance Act or under another count charging a violation of a like act existing in this State.
    6. Amendments and jeofails—when count may be reinstated after verdict. If the court at a trial has improperly required an election between several distinct counts, such error may be cured by permitting after verdict the reinstatement of the count as to which the case did not go to the jury by virtue of such enforced election.
    7. Appeals and errors—of what complaint cannot be made. If counsel has induced the court to commit error he cannot thereafter complain of the action of the court in correcting such error.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed April 18, 1910.

      Glenn on, Cary, Walker & Howe, for appellant.
    James C. McShake, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This action was brought to recover damages for personal injuries sustained by plaintiff while in the employ of defendant as a switchman, he having been injured while attempting to couple up two cars in the yards of defendant at Manor Park, Chicago, provided with automatic couplers, one of which was out of repair, and would not perform its function of coupling automatically by impact without the necessity of the switchman going between the ends of the cars. The declaration consisted of two counts, each stating in apt language sufficient facts, preceded by formal inducement, entitling plaintiff to recover, if supplemented by adequate proof. The first count rested the right of recovery in virtue of a certain State statute, and the second count in like manner under the provisions of a Federal statute. The general issue was pleaded to each count and the cause, upon issues thus joined, went to trial before court and jury, resulting in a verdict in favor of plaintiff with damages assessed at $10,000, upon which judgment was entered after denying motions of defendant for a new trial and in arrest of judgment. Defendant appeals and assigns error and argues as causes for reversal failure of the trial judge to instruct a verdict in its favor at the several times when moved so to do; refusal to give instructions 12 to 17 asked by defendant; in vacating an order requiring plaintiff to elect under which count of the declaration the cause should be submitted to the jury; in overruling defendant’s motions for a new trial and in arrest of judgment, and in entering judgment upon the verdict, and that the damages are excessive. There is but little appreciative difference and none on principle between the Federal and State statutes. The Federal statute was passed in 1893 and amended in 1896 and again in 1903; and the State statute was passed in 1905. The State statute being virtually an adoption of the Federal law then in force on that subject, it will be assumed that the law-making power in ingrafting such Federal statute into the law of the State had in mind the decisions of the courts in construing the Federal statute, and in faith of such decisions adopted the statute with intent to make the same effective in the manner and to the extent of legal construction theretofore made by the courts, so far as applicable to intrastate railroad traffic. We quote both sections of the respective Acts, which are more particularly involved in this cause.

Section 2 of the Federal Act of 1893 reads: 1 ‘ That on or after the first day of January, 1898, it shall be unlawful for any such common carrier to haul or" permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.” While section 2. of the Illinois Act provides “That from and after the pass^ ages of this Act it shall be unlawful for any common carrier to haul or permit to be hauled or used on its line any locomotive, tender, car or similar vehicle, used in moving State traffic, not equipped with couplers coupling automatically by impact, and which can be coupled without the necessity of men going between the ends of the cars.” Having in mind the construction put upon the Federal Act by the courts in construing the kind of rolling stock to which it applies, the two Acts are, in the effect to be given to them, virtually identical. Johnson v. So. Pacific Ry. Co., 196 U. S. 1.

Section 8 of the Federal Act provides that “any employe of any such common carrier who may be injured by any locomotive, car or train in use contrary to the provisions of this Act shall not be deemed thereby to have assumed the risk thereby occasioned, although continuing in the employ of such carrier after the unlawful use of such locomotive, car or train had been brought to his knowledge.” Corresponding to this is section 9 of the Illinois statute, which reads: “Any employe of any such common carrier who may be injured by any train, tender, car or similar vehicle in use contrary to the provisions of this Act, shall not be deemed to have assumed the risk thereby occasioned, nor to have been guilty of contributory negligence, because of continuing in the employment of such common carrier or in the performance of his duties as such employe after the unlawful use of such train, locomotive, tender, car or similar vehicle has been brought to his knowledge.”

The duty of defendant, whether imposed by the Federal or State statutes, was not to haul or permit to be hauled or used any locomotive, car, etc., not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of going between the ends of the cars. Plaintiff was a switchman in the employ of defendant. He was injured in consequence of the violation by defendant of either the Federal or State Act, whichever is applicable. The injury resulted from the coupler on the car, which plaintiff was endeavoring to “couple up” with another car, being out of repair, making it necessary for him to go between the cars in an effort to remedy the difficulty and make the coupling. That the coupler was out of repair is undisputed. We think a prima facie case was made when plaintiff had proven that the coupling was defective and that he could not therefore couple the cars without going between them because of such defect, and that he was injured as a result of the defendant’s hauling and using a car which would not couple automatically by impact. At least such proof was sufficient to require defendant to rebut it if it could. The use of a car without a coupler which would couple by impact without the necessity of going between the ends of the cars was unlawful. Whatever view may be taken of the condition of the coupler, we are inclined to hold to the rule laid down in Taggart v. Republic, 141 Fed. R. 910, that “A car with an automatic coupler that will not work is, to all intents and purposes, a car without an automatic coupler.” Such a car was the one causing the injury to plaintiff. C. & A. R. Co. v. Walters, 217 Ill. 91. We concur with the argument of counsel for plaintiff that the gist of the action is the hauling of the car with couplers in such a condition that they cannot be coupled and uncoupled without the necessity of going between the cars to do such work. The reason for the condition being immaterial. Johnson v. So. Pac. Ry. Co., 196 U. S. 1. As truly said in the Johnson case: “The risk in coupling and uncoupling was the evil sought to be remedied and that risk was to be obviated by the use of couplers actually coupling automatically. In the present case the couplings would not work together; Johnson was obliged to go between the cars; and the law was-not complied with.” If in the place of Johnson’s name Luken’s be used, we have a complete statement of plaintiff’s condition and defendant’s liability. These statutes make the risk that of the common carrier, and both statutes in effect abolish the common law doctrine of the assumption of risk and contributory negligence in cases where the statutes may be invoked. St. L. I. M. & S. Ry. Co. v. Taylor, 210 U. S. 281. In the Taylor case the court say: “The obvious purpose of the legislature was to supplant the qualified duty of the common law with an absolute duty deemed by it more just. If the railroad does in point of fact use cars which do not comply with the standard, it violates the plain prohibitions of the law, and there arises from that violation the liability to make that compensation to one who is injured by it. It is urged that this is a harsh construction. To this we reply that if it be the true construction its harshness is no concern of the courts.” The duty of the common carrier under the statutes supra is absolute as appears from U. S. v. A. T. & S. F. Ry. Co., 163 Fed. R. 517, reversing a judgment in favor of the railroad company, in which case the court say: “But as we read the opinion of the Supreme Court in the more recent case of St. Louis, Iron Mountain and Southern Ry. Co. v. Taylor, 210 U. S. 281, it is' now authoritatively settled that the duty of the railway company in circumstances where the Congressional law is applicable is not that of exercising reasonable care in maintaining the prescribed safety appliances in operative condition, but is absolute. In that case the common law rules in respect to the exercising of reasonable care by the master, and of the non-liability of the master for the negligence of a fellow servant were invoked by the railway company and were held by the court to be superseded by the statute.” In logic and sound reasoning the rule of the Taylor case is the law of this, whether it rests for its foundation upon the Federal or State statute supra. The beneficent purposes of the Acts are neither to be minimized nor nullified through judicial interpretation. Their spirit controls judicial interpretation, for, as said in U. S. v. So. Ry. Co., 135 Fed. R. 122, “The Act is so highly meritorious, so generous in its purpose, so in harmony with the best sentiment of a humane people and a progressive government, that it appeals strongly to the courts for its prompt and vigorous enforcement.” We are satisfied that the evidence is ample to sustain the verdict under either count of the declaration, provided the condition of the pleadings does not render that verdict abortive and necessitate a new trial.

Defendant moved the court at the conclusion of all the proofs for an order compelling plaintiff to elect under which count the case should go to the jury. Plaintiff protested that he had a right to have the cause submitted to the jury on both counts, but such protest was unavailing, the motion of defendant prevailed and under the ruling of the court and against the protest and exception of counsel for plaintiff he elected to proceed under the “State count”, being the first. On motion of plaintiff after verdict, the court vacated the order of election and gave judgment on the verdict. Plaintiff assigns cross errors on the action of the court in granting defendant’s motion and in instructing the jury to find for defendant under the second count. To solve the entanglements thus created, three questions seem to be presented for our decision : First: Did the court err in allowing defendant’s motion and requiring plaintiff to elect on which count he would submit the case to the jury? Second: The effect of vacating the order. Third: If the order of election was erroneous, can defendant avail of such error to its advantage?

If in the circumstances of the case counsel was of the opinion that there was some doubt as to whether the liability of defendant rested in virtue of the Federal or State statute, and he was uncertain under which statute the evidence would develop the liability rested, then the plaintiff had the right to file distinct counts charging the liability of defendant separately under both statutes. He had a right to have the case go to the jury under both counts, and he could not be compelled by the court to elect between the counts and to proceed under one of them. Utter v. Buck, 120 Ill. App. 120. The order requiring plaintiff to elect between the two counts was erroneous. Bright v. Kenefick, 69 ib. 43.

Second- As we read the record the second count, even after the forced election to proceed under the first, was never stricken out or nolled, but still remained in the record. Under our statute amendments may be made at any time before judgment, so that the pleadings and proofs may harmonize. While we are of the opinion that the case must be regarded as having gone to the jury with both counts in the declaration, still if it were not so, the election order being vacated after verdict and before judgment, reinstated the second count, which was effective to cure any variance which may have existed between the pleadings and proofs without such second count. Haley v. Kirkpatrick, 44 C. C. A. 104.

Third: It is a theory, sometimes lacking in practice, that the functions of counsel are to enlighten the court, so that justice in the trial of causes may be attained. While it may not be said that counsel in inducing the trial judge to fall into error in requiring an election between the two counts of the declaration was guilty of any “wrong doing”, still we do hot think he can be heard’to complain of the curing of the error brought about, innocently though it may have been, by counsel’s own action, where the merits of the cause are in no way affected to the disadvantage of defendant. As said in U. P. Ry. Co. v. Harris, 12 C. C. A. 602: “The defendant will not be allowed to thus take advantage of the errors of the court induced on his own motion and then compel the plaintiff to suffer the consequences. If the rule were otherwise it would encourage and reward unfounded and groundless objections.” Jobbins v. Cray, 34 Ill. App. 219; Stearns v. Reidy, 33 ib. 249. We think the case stands as if the order of election had not been made and the case had gone to the jury on both counts. Nowhere does defendant contend that the order of election was without error.

We think that, as the evidence stands, a verdict limited to a consideration of the first count can be sustained. The ear in question was within this State, being hauled by defendant in violation of the State statute as to couplings. There is no countervailing proof challenging its intrastate character. The proof uncontradicted made a prima facie case of intrastate use, sufficient at least to shift the burden to defendant to rebut by proof assumedly accessible to it. For the evidence in the record proves only one fact in relation to this car, and that is that it was hauled by defendant in this State, and if it was at any time beyond the limits of this State or being used in interstate traffic, there is no proof of that fact, nor that it was a part of any train engaged in interstate transportation. N. Y. ex rel. v. Knight, 192 U. S. 27, where it is said: “Where service is wholly within a State it is presumably subject to State control. The burden is on him who asserts that though actually within, it is legally outside, the State; and unless the inter State character is established, locality determines the question of jurisdiction. ’ ’ Gulf etc. v. State, 204 U. S. 403; I. C. R. R. Co. v. Bailey, 222 Ill. 484. It did not ipso facto follow that because defendant railroad operated lines in more than one State, the car in question at the time in question being hauled upon the line of defendant in this State was engaged in interstate commerce. The Federal Act in this respect has not been subject to any narrow construction by the courts. As an illustration of this fact the court held in Wabash R. Co. & Elgin, J. & E. Ry. Co. v. U. S., 168 Fed. R. 1, quoting from the syllabi, “If a car is set apart for carrying intrastate traffic exclusively, but if it is not confined to intrastate trains on an intrastate line, the fact that while it is laden with intrastate traffic it is hauled in connection with interstate cars on an interstate line requires it to be equipped with automatic couplers in compliance with the federal safety appliance Acts ’ ’.

The duty imposed by both the federal and State Acts is the same. The issues, aside from the question of whether the car was engaged in intra or interstate traffic were identical under each count. The verdict of the jury is maintainable under either or both, so that the ultimate merits nor the liability of defendant were injuriously affected by the court’s instructing a verdict on the second count. The doctrine of assumed risk and contributory negligence is eliminated as factors in any case coming within either statute. Schlemmer v. Ry. Co., 205 U. S. 1, in which the court say: “We are clearly of opinion that Schlemmer’s rights were in no way impaired by his getting between the rails and attempting to couple the cars. So far he was saved by the provision that he did not assume the risk.”

We think the jury were sufficiently instructed upon the law of the case in every essential particular by the instructions given them, and more favorably for defe'ndant than necessary; and that the refusal of the instructions complained about did not tend to impair any right which defendant could avail of. They were rightfully refused because they ignored the elimination of the doctrine of assumed risk and contributory negligence and assumed that these doctrines of the common law were invokable in defense of defendant’s liability.

The trial court erred in requiring plaintiff to elect under which count he would submit the cause to the jury, and in instructing the jury to find for defendant under the second count. These errors, however, are not prejudicial to defendant, but of its own creation. In all other respects we find no error justifying a reversal of the judgment of the Superior Court, and it is therefore affirmed.

Affirmed.


text:
    Thomas McInerney, Administrator, Appellee, v. Western Packing & Provision Company, Appellant.
    Gen. No. 15,060.
    1. Instructions—when peremptory properly refused. The refusal of a peremptory instruction, is proper if uncontradicted the Appellate Court cannot say that all reasonable minds would arrive at the conclusion that the duty and negligence charged against defendant were not sustained hy plaintiff’s proofs at the close of the evidence in chief.
    2. Verdicts—when not disturbed. A verdict will not he set aside on review as against the evidence unless clearly and manifestly so.

      3. Negligence—when declaration need not negative relation of fellow-servants. If it appears upon the face of the declaration that the relation of fellow-servants did not exist between the plaintiff and the defendant’s servants charged with negligence, the existence of such relationship need not be specifically negatived.
    4. Statute oe Limitations—when new cause of action not set up. If the amended or additional count merely consists of a restatement of the cause of action set up in the original count or counts, a new cause of action is not set up to which the Statute of Limitations will apply.
    5. Master and servant—who not fellow servants. Held, that a servant engaged in the business of wheeling ashes from beneath boilers was not a fellow-servant of employes in charge of said boiler.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. George W. Patton, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed April 18, 1910.
    Rehearing denied May 2, 1910.
    E. E. Gray, F. J. Canty and J. C. M. Clow, for appellant.
    Thomas J. Healy and John A. Bloomingston, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an appeal from a judgment entered upon the verdict of a jury for $7,500 in an action brought by plaintiff against defendant under the statute for the use of the next of kin, for defendant’s wrongfully causing the death of plaintiff’s intestate.

Plaintiff’s intestate, Lawler, was a laboring man in the employ of defendant, who was engaged in the business of slaughtering cattle. Lawler at and for some time previous to his death worked at “wheeling ashes” from underneath some boilers owned and operated night and day by defendant at its plant. Lawler worked with the “night shift”. When taking away ashes he worked in a pit, the boilers being above the pit. Early in the morning of 'September 6, 1906, a water tube in a boiler over him burst and before he could be extricated from the pit he was so injured by steam and hot water escaping from the boiler, the tubes of which had exploded, that he died the same day. The cause went to the jury on the first count of the original declaration and the first count of the two counts filed by leave of court December 16, 1907. The general issue was filed to both counts and a special plea of the statute of limitations to the latter count. Plaintiff demurred to the special plea, which demurrer the court sustained, and defendant elected to stand by the plea. By the first count of the original declaration the duty of defendant and its negligence in not discharging such duty is alleged in the following words: “And it then and there became and was the duty of the defendant to keep the said boiler and flues in a reasonably safe condition, to prevent the same from bursting, and thereby to injure or kill persons who might be near to or in the vicinity of the same, yet the defendant did not regard its duty in this behalf, but on the contrary, by and through certain of its servants, negligently, wrongfully and carelessly caused or permitted the said boiler and flues to become unsafe.” In the first count filed December 16, 1907, the like duty and negligence of defendant is charged by the following averments: “While the plaintiff’s intestate was in the exercise of due .care and caution for his own safety, was working in a certain then pit in front of the firebox of said boiler, the defendant negligently and carelessly suffered and permitted a certain then flue to be and become defective in this, to-wit, that the said flue at a certain portion thereof was negligently suffered and permitted to become thin and much thinner than other portions of the said flue, and much thinner than was usual and customary in such flues, all of which the defendant well Imew, or in the exercise of reasonable inspection could have known, and of which plaintiff’s intestate was ignorant and had no opportunity of knowing’, so that by reason of the negligence of the said defendant as aforesaid in furnishing said flue, which was then and there defective as aforementioned, said flue by reason of said defect aforementioned, then and there exploded, ruptured and blew out.”

Defendant argues for reversal that plaintiff did not make out a case which should have been submitted to the jury, but that its motions to instruct a verdict in its favor should have been allowed; that the demurrer to the plea of the statute of limitations was erroneously sustained; that the court erred in refusing to give certain instructions asked by defendant containing reference to the “fellow-servant” doctrine, and for prejudicial conduct of plaintiff’s counsel.

The liability of defendant is grounded on its duty to furnish Lawler a safe place in which to work, and its neglect so to do in negligently maintaining a boiler with a defective flue, which burst and resulted in Lawler’s death. To maintain these propositions by a preponderance of the evidence was the burden of plaintiff. The whole evidence considered reveals a sharp conflict on these crucial questions. Uncontradicted, we cannot say that all reasonable minds would arrive at the conclusion that the duty and negligence charged against defendant were not sustained by plaintiff’s proofs at the close of the evidence in chief. It therefore follows that a case had been made out calling for evidence from defendant to rebut. After defendant had introduced its evidence and rested its case, there was sufficient evidence calling for submission of the conflicts to the jury and to impose upon them the burden of solving the conflict and determining whether, all the evidence considered, plaintiff had sustained by a preponderance of the proof the material averments of either of the two counts forming the declaration on which the case was sent to the jury. The questions thus presented by the proofs were of fact for the jury and not of law for the court. We are unable to say that the verdict is contrary to the preponderance or greater weight of the evidence and consequently do not think we are called upon to disregard it. The trial judge has accorded his assent to the correctness of the jury’s conclusions by overruling defendant’s motion for a new trial and in giving judgment upon the verdict; and we see no legal reason why we should record our dissent to the result thus reached. The flue in the boiler of defendant exploded, causing the death of Lawler. For such explosion Lawler was in no way the cause, nor for it was he in any manner responsible. No negligent act of his was the procuring cause, and nothing that he was obligated to do was omitted which could have averted the disaster. True it is that the boiler was procured from a reputable dealer and that tests of approved efficiency were applied to the flues, yet the fact remains that there was a wealmess at the place in the flue which gave way, it being, of thinness, the' one thirty-second of an inch, while the remainder of the metal was one-eighth of an inch thick. Whether the hydraulic tests or the hammer test were applied to the flue which burst, as well as whether one test was more efficient than the other, or the neglect to apply either in a sufficiently thorough way to make apparent the defect in the flue which resulted in the explosion, were all questions of fact to be solved by the jury, and it was for them to say whether the tests were so negligently made as to constitute negligence in defendant. Then again, the boiler was worked continuously night and day, without cessation, for six months prior to the accident. It was for the jury to say, from the proofs, whether the tests and inspection of the tubes in the boiler were of that character, during the time of operation, sufficient to absolve defendant from the charge of negligent operation. The tube which exploded was offered in evidence by defendant and comes with the record to this court. The jury had the advantage furnished by the appearance of this tube and therefrom and the evidence in the record, coupled with their own experience, if any they had, could determine the fact as to what cause the explosion was attributable. We think the verdict is fairly supported by the proof, and that it is not contrary to its manifest weight. I. C. R. R. Co. v. Pricket, 109 Ill. App. 468, affirmed in 210 Ill. 140.

The first count of the declaration stated a cause of action, and the additional count did not state any new cause of action, but was simply a restatement in a different and more amplified form of the circumstances and the liability averred in the first count. It was not necessary to negative the fellow-servant doctrine by any averment of the declaration. It cannot be said that Lawler had necessarily any association with defendant’s servants in charge of the boiler in the duty of “wheeling ashes” as would make him their fellow-servant, nor that he had anything whatever to do with the boiler or the flues in it. This sufficiently appears from the declaration. Those in charge of the boiler, and Lawler, were in no legal sense fellow-servants—no more so than the engineer of the train and the baggage man were fellow-servants in C. & A. v. Swan, 176 Ill. 424, where the court say: “Proof that one was a baggage man and the other an engineer would of itself justify the inference that they were not directly co-operating with each other in the business of running the train, and hence not fellow-servants under our rule.” Railroad Co. v. Hawthorn, 147 Ill. 226.

The “fellow-servant” doctrine is not involved in this case, and the court properly refused all of defendant’s instructions referring to that doctrine and directing the jury to apply it to the facts in proof. Siegel v. Trcka, 218 Ill. 567. The law of the case was sufficiently stated to the jury in the instructions given them, and there is no instruction proffered and refused calling for a reversal of the judgment. While counsel for plaintiff was indiscreet in his cross-examination of defendant’s witness, Thomas Conroy, and should not have asked the questions objected to, and while we in no way intend to be understood as condoning or sanctioning such conduct, still we think that a sufficient corrective was applied in the rebuke of the trial judge and the sustaining of the objection made by defendant, which eliminated it from the record.

This conduct was not of such a prejudicial character as to justify a reversal of a judgment which, the whole case considered, does justice between the parties.

The record being free from reversible error, the judgment of the Superior Court is affirmed.

Affirmed.


author: Mr. Justice Baker

text:
    Ryan Car Company, Appellee, v. James T. Gardner, Appellant.
    Gen. No. 15,021.
    1. Evidence—lohen time hooks competent. Held, that time books received in evidence in this case were competent, such time books having been compiled from cards containing the original record of labor expended.
    2. Damages—when profits not recoverable. The loss of a sale and consequent loss of profits are not competent to be shown in connection with a breach of contract which it does not appear was made by the parties in contemplation of such a sale.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed March 31, 1910.
    Rehearing denied May 16, 1910.

      Certiorari denied by Supreme Court (making opinion final).
    Colson & Johnson, for appellant; O. N. Dynes, of counsel.
    Hoyne, O’Connor, Hoyne & Irwin, for appellee; Maclay Hoyne and Carl J. Appell, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal by the defendant from a judgment for $6,000 recovered against him by plaintiff in an action of assumpsit. Plaintiff performed labor and furnished materials in repairing for defendant three locomotive engines. As to one, known as the Block-Pollak engine, there was no agreement as to compensation. As to the other two, known as Nos. 531 and 366, there was an agreement that plaintiff should be paid sixty-five cents per hour for skilled labor, thirty-five cents per hour for common labor, and cost and fifteen per cent additional for materials furnished. Plaintiff contended and defendant denied that it was a part of said agreement that by skilled labor was to be understood all workmen using tools, and by common labor, all laborers who worked without tools. From the evidence we think the jury might properly find that the agreement of the parties was as contended by the plaintiff.

The declaration- contained the common counts. Plaintiff was ruled to file and filed a bill of particulars, and then, by leave of court, filed an amended bill of particulars, in which it was stated that there was due plaintiff for labor and materials in repairing engines Nos. 531 and 366 $8,127.04, for labor and materials in repairing the Block-Pollak engine $134.63, and for labor in moving said engine $34. The jury returned a verdict for the plaintiff for $6,805.91, plaintiff remitted $805.91, had judgment for $6,000, and the defendant appealed.

The Block-Pollak engine came to plaintiff’s shop in March, 1907. Little or no evidence appears to have been offered by plaintiff in support of its claim for $134.63 for labor and material- on that engine. Engines Nos. 531 and 366 came to plaintiff’s shop in May, 1907, and plaintiff claims to have worked in repairing the same in each month from that time up to and including the first half of November, 1907.

The trial court admitted in evidence, as tending to prove plaintiff’s claim for labor performed on, said engines, plaintiff’s time books from May 1 to November 15, 1907, and the principal contention of appellant is that the court erred in admitting said time books.

The evidence shows the following mode of keeping account of the time spent in work on said engines. On coming into the shop engine 366 was given shop order No. 140, and 531 shop order No. 141. Bach workman at the end of each day made out a time card or slip, stating the number of the order on which he had worked and the number of hours he had worked that day, signed the same and turned the slip in to his foreman. The following morning the foreman examined the cards and those that he found correct he signed after the printed word “correct”. If he thought a card was not correct, he took it to the workman who had signed it, and changed it if necessary to make it correct, and then signed it as he did the cards found correct when turned in. The cards were then taken to the time keeper. The time that each workman came to the shop and the time he left were entered in a book kept by the gate keeper, and the time keeper, before entering the time slip in the time book, checked the time slips with the gate book to see that the time stated by each workman in his time slip corresponded with the time of his attendance at the shop. If there was no reason to question the correctness of a card, the time keeper then entered in the time book the contents of the card. If there was reason to question the correctness of a card, the time keeper went to the workman and, if a mistake was found, corrected the card and entered its contents in the time book. The time book stated the time that each workman worked each day and the shop order on which he worked, and the workmen were paid for their time as stated in the time book. Davis was foreman of plaintiff’s shop from the time the engines were, brought there until September 5, 1907, but at the time of the trial was employed by defendant. He testified that it was his duty to pass on the time slips; that he could not say that some of the time slips he approved were absolutely correct, because he was not standing over the men all day; that he thought they were correct; that was Ms best knowledge at the time. Harder became foreman September 5 and was foreman until October 20. He testified that he could tell within a quarter or half an hour each morning how much time each workman worked o.n a particular order the day before; that he sometimes corrected a time slip, but always went to the workman, and if he agreed “with me I would correct the slip; otherwise it would not be made”. Jensen was foreman from October 21 to November 9, and his testimony was substantially the same as Harder’s. Colson was foreman of the blacksmith shop in October and November, and his testimony was in substance the same as Harder’s. Collins was time keeper for the plaintiff during all of 1907. Weber made entries in the time books during May and part of June. He died before the trial. Collins kept the time book during the. remainder of June and the first half of July; Stevenson during the remainder of July, August and September, and Alward during October and November. Collins, Stevenson and Alward each testified that he checked the cards with the gate book; that if corrections were made they were made after calling on the workman whose card was in question and ascertaining the facts, and that the cards were correctly entered in the time book. It appears from the evidence that it was not the custom to permanently keep the time slips, but after the dispute between the parties arose all the cards that could then be found were preserved. A large number of the cards in question were put in evidence, but two hundred or more were not produced at the trial. There is no evidence tending to show any mutilation or alteration of any time book. The evidence tends to show that all the alterations made in the time cards were honestly made for the sole purpose of correcting errors in the cards as turned in to the foreman, and that such corrections were made with the knowledge and consent of the workman whose card was altered, and that the cards as finally corrected were correctly copied into the time books in the due and usual course of the business of the plaintiff.

We think that the time books were properly admitted in evidence. Chisholm v. Beaman Machine Co., 160 Ill. 101.

The court did not err in permitting the witness Orme to testify as to the number of hours of labor the time books showed the plaintiff had performed on the engines of defendant.

The court did not err in refusing to permit defendant to show that he lost a sale of one of the engines because of plaintiff’s delay in making repairs thereon, because it was not shown that when the contract for the repair of said engines was made plaintiff was informed that such sale was contemplated by the defendant. Hadley v. Baxendale, 8 Exch. 341; Bradley v. C. M. & St. P. R. R. Co., 94 Wis. 44.

The evidence does not show that it was agreed by the parties in September that plaintiff should not, after that time, do any work on said engines, and the contention of appellant that plaintiff could not recover for work done after that time cannot be sustained.

We find no error in the rulings of the court on instructions.

The evidence is, we think, sufficient to warrant and support the judgment.

Finding no reversible error in the record, the judgment of the Municipal Court will be affirmed.

Affirmed.