text:
    Rosa Reeves, Appellee, v. Peoria Railway Company, Appellant.
    Gen. No. 6,082.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. Theodore N. Green, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 20, 1915.
    Statement of the Case.
    Action by Rosa Reeves, plaintiff, against the Peoria Railway Company, defendant, in the Circuit Court of Peoria county, to recover for personal injuries alleged to have been sustained as a result of defendant’s negligence as plaintiff was alighting from one of defendant’s street cars. From a judgment for plaintiff for $5,000, defendant appeals.

      Plaintiff was at the time of the accident a married woman about thirty-five years old. There is no question that she fell upon the sidewalk striking her back and head and was rendered unconscious, and continued in bed for several weeks, and afterwards a fistula formed which was removed. Two operations are said to have been undergone since the accident, one for fistula and one for removal of the womb. It is not claimed by plaintiff that the conditions necessitating those operations are proven to be attributable to the shock and injury received from the accident, and it is said that any opinion on the subject is purely speculative, but that the severe shock and serious injury she received must have had as much or more to do with bringing about these conditions as anything else. Plaintiff said an operation for fistula was performed by Dr. Hanna September 19,1910, two years after the accident, and she said another operation was performed by Dr. Meloy in January, 1914. As to the operation of September 19, 1910, Dr. Hanna testified that on that date he operated upon appellee, removing her appendix, both Fallopian tubes, the right ovary, amputated the neck of the womb, fixed up a bad vaginal outlet, and opened a fistula in connection with the anus; that in his opinion the condition which made the operation necessary was due to infection of the tubes and could not be produced by an accidental injury. He also testified that a fall from a car would not tend to produce prolapsus of the womb. Two other physicians testified to the effect that the conditions making necessary these operations could not have resulted from the injury received at the time of the accident. The medical testimony seems to agree that the cause of the condition which made the operation of September 19, 1910, necessary was an infection, perhaps, though not necessarily, of gonorrheal origin.
    The claim of each party was supported by clear and direct evidence, plaintiff’s evidence making a clear case of due care on her part and of negligence on the part of defendant, and defendant’s evidence making an equally clear case of due care on its part and of contributory negligence by plaintiff. There was evidence that after the accident plaintiff went to a hospital and received treatment there, and of a bill for the services of a physician which had been incurred by plaintiff, in connection with her injuries, to the amount of $200, but no competent evidence as to the amount paid for treatment at the hospital.
    Abstract of the Decision.
    1. Trial, § 155

      —when weight of conflicting evidence for jury. Where the evidence is conflicting, it is the province of the jury to ascertain the truth.
    2. Witnesses, § 259

      —when credibility of witnesses to accident determined by opportunity for observation. Conflicting testimony as to an accident may sometimes be reconciled by considering the fact that intelligent people usually make conflicting statements as to an accident involving confusion, and the variance between such statements may be accounted for by the fact that all the witnesses did not have the same opportunities for observing what happened.
    3. Appeal and error, § 1410

      —when verdict not against manifest weight of evidence. In an action to recover for personal injuries sustained- by plaintiff while alighting from defendant’s .street car, which injuries were alleged to be due to defendant’s negligence, where the evidence was conflicting, and in a previous trial the jury found for plaintiff, a verdict for plaintiff, hold not so manifestly against the weight of the evidence as to require a reversal, although the reviewing court might entertain another opinion were this the first trial of the cause.

      The case was twice tried, a former judgment for plaintiff for $600 having been reversed by this court (164 Ill. App. 611) because of errors of law found in the record. The court overruled a motion by defendant for a new trial.
    McRoberts, Morgan & Zimmerman, for appellant.
    Dailey & Miller and Robert N. McCormick, for appellee.

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

4. Street railroads, § 131 —when evidence sufficient to sustain finding as to serious injury. In an action to recover for personal injuries alleged to have been sustained by reason of defendant’s negligence while plaintiff was alighting from one of defendant’s street cars, evidence held fairly to prove that plaintiff sustained a serious injury by reason of the accident.

5. Damages, § 114 —when verdict for a woman excessive in action against street railroad for personal injuries. In an action to recover for personal injuries alleged to have been sustained by reason of defendant’s negligence while plaintiff, a woman, was alighting from one of defendant’s street cars, a verdict for plaintiff for $5,000 held excessive to the extent of $2,500, where it appeared that plaintiff suffered serious injury by reason of the accident, but where it also appeared that for the most part the disability resulting therefrom was due to causes other than the accident.

6. Street railroads, § 147 —when instruction as to lade of proof of expense due to accident properly refused. In an action to recover for personal injuries alleged to have been sustained by reason of the negligence of defendant while plaintiff was alighting from one of defendant’s street ears, an instruction that plaintiff had produced no competent evidence that she had paid bills for hospital, medical or surgical services, held properly refused, where there' was evidence tending to show liability and where there was evidence that plaintiff had received such services, although the evidence as to the amount paid therefor was unsatisfactory.


source: Caselaw Access Project

author: Mr. Justice Carnes

license: Public Domain

text:
    Richard A. Smith, Appellee, v. Fred Grabbe et al., Appellants.
    Gen. No. 6,088.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding.
    Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed October 20, 1915.

      Statement of the Case.
    Action by Richard A. Smith, plaintiff, against Fred Grabbe and others, defendants, to recover on a promissory note made by defendants, and indorsed to plaintiff. From a judgment for plaintiff for $981.17 against four defendants, such defendants appeal.
    It'was agreed by counsel that the evidence shows that these eight men gave Thompson their three promissory notes, in form joint and several, for $600 each, due October 1, 1903, 1904 and 1905 respectively; that each of the eight men signed each of the three notes, and none of them signed any other note of that description ; that soon after the notes were given, Thompson sold and assigned the two notes last maturing to plaintiff; that those two notes were paid, and there is no question about their genuineness; that afterwards Thompson sold and assigned to plaintiff what purported to be the other of said notes, which is the note sued on; that afterwards it became known to plaintiff and some of the makers of the notes that there were outstanding a dozen or more sets of skilfully forged duplicates of these three notes, and the makers refused to pay the note here in controversy, claiming it to be a forgery. But they have never paid the genuine note of this description.
    On September 11, 1913, a few days before the Ten-Year Statute of Limitations wotild run on this note, this suit was brought and summons issued against seven only of the eight makers of the note (omitting Towner). Afterwards a declaration was filed describing the note in question except the omission of any mention of Towner, and counting on the joint liability of the seven defendants thereon. A true copy of the note, including the signature of Towner, was filed with the declaration as a copy of the instrument sued on. Griffith is a nonresident and was not served with summons, The other six defendants appeared, filed a plea of the general issue, and affidavits of each of them denying his signature to the note. A jury was impaneled to try the issues so formed, but during the trial on motion of appellee, a juror was withdrawn and leave given to amend the declaration. (Plaintiff says here that this was done because he then believed that there was a variance between the note offered in evidence and the note described in the declaration.) An amendment to the declaration was filed more than ten years after the note was due, making Towner a codefendant, and describing the note as a joint note of the eight men instead of seven, and'counting on the joint liability of the eight men. The pleas on file were allowed to stand to the amendments. No summons was issued for Towner, and, there still being no service on Griffith, the other six defendants are shown by the record proper to have filed a plea of the Ten-Year Statute of Limitations, and it is there shown that the plea was stricken from the files on motion of plaintiff and over the objection of the defendants. No such motion or objection appears in the bill of exceptions. There was a jury trial and a verdict against the eight defendants (including the two not served with summons or appearing) for $987.75. The court granted a new trial on motion of the six defendants appearing.
    There was afterwards another jury trial, and a verdict against the six defendants appearing for $981.17. No witness testified to the genuineness of the signature of Grabbe and Eadke, and after verdict plaintiff dismissed as to them, but did not amend his pleadings. The court overruled the four defendants’ motions for a new trial and in arrest of judgment, and entered judgment against them for the amount named in the verdict.
    Cooke, Pope & Pope, for appellants.
    Heydecker & Heydecker and George W. Field, for appellee.

      Abstract of the Decision.
    1. Bills and notes, § 421

      —when evidence of adding of forged signatures immaterial. Where it is admitted that certain persons signed one note and that they signed’ no other note, evidence of the adding of forged. signatures by some of them to genuine signatures of others is immaterial.
    2. Bills and notes, § 372

      —when joint course of action at common law must be proved as alleged. At common law when a joint cause of action ex contractu on a note is alleged, it must be proven as alleged against all the defendants, unless a defense personal to some of them is interposed, or unless some of the obligors are dead, and a judgment in such a cause of action which was not so proven must be reversed unless a recovery in such case is made possible by some statute.
    3. Bills and notes, § 372

      —when variance between pleadings and proof in action in which joint judgment entered. In an action to recover on a promissory note where a joint judgment was entered against four of the makers of such note, it is immaterial that one of the defendants against whom plaintiff recovered is dead, where it appears that the other three against whom plaintiff recovered are alive at the time of the judgment, and it does not appear whether such deceased defendant was dead before the action was commenced.
    4. Bills and notes, § 335

      —when all persons severally liable on notes may be joined in one suit. Under the Negotiable Instruments Act (Hurd’s Rev. St., ch. 98, secs. 7a, 7b, J. & A. ¶¶ 7625, 7626), providing that persons severally liable on promissory notes payable in money in certain cases may all or severally be joined in one suit, a plaintiff in an action to recover on such a note may allege the several liability on such note of as many parties as he may choose, and, on joining such parties in one suit, may on proper evidence recover a judgment against the parties joined.
    5. Bills and notes, § 372

      —when proof of joint liability required where joint liability alleged. The Negotiable Instruments Act (Hurd’s Rev. St., ch. 98, secs. 7a, 7b, J. & A. ¶¶ 7625, 7626), providing for the joinder in one action in certain cases of parties severally liable on promissory notes, does not abrogate the rule of the common law requiring proof of a joint liability on such notes where such joint liability is alleged.
    6. Appeal and error, § 1802*—when cause may be remanded to permit, amendment of declaration. Where at the time of the reversal of a judgment the statute of limitations has run against the cause of action sued on, the Appellate Court will nevertheless remand the cause to permit ámendment of the declaration where such declaration can be amended so as to state a cause of action, notwithstanding the fact that the contemplated amendment may render the declaration liable to a plea of the statute of limitations as stating a new cause of action, as the Appellate Court cannot know that such a plea would be interposed.

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

7. Appeal and error, § 1802 —when cause remanded to permit amendment of declaration without considering effect of such amendment. Where a judgment is reversed because the declaration does not support the judgment, and the cause is remanded to permit an amendment of the declaration so as to state a cause of action, the Appellate Court will not consider whether the contemplated amendment will state a new cause of action and so render the declaration as amended liable to a plea of the statute of limitations where appellant’s counsel in argument insists on such question, and where appellee asserts the contrary and further urges that the point was not preserved for review, and where neither party cites authority sustaining his contentions.


text:
    Simmons Motor Company, Appellant, v. Ruby B. Dudley, Appellee.
    Gen. No. 6,095.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Whiteside county; the Hon. Robert W. Olmstead, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 20, 1915.
    Statement of the Case.
    Action of replevin by the Simmons Motor Company, plaintiff, against Ruby B. Dudley, defendant, in the Circuit Court of Whiteside county, to recover possession of an automobile. From a judgment for defendant, plaintiff appeals.
    There is practically no dispute as to the evidentiary facts. Plaintiff was the agent of the Lewis Motor Company, installing local agencies in Illinois and Indiana, and retailing cars in Chicago. A few weeks before the transaction in question it employed Clark as its agent to locate agencies in the State of Illinois, and to obtain orders from agents so procured for at least one car, for which he was directed to require a deposit of a certified check or draft, and send it, with the agency contract, to plaintiff who would ship a car to the local agent. The car in question was furnished Clark by plaintiff, with a chauffeur to drive and take care of it. The list price of the car was $1,600; dealer’s price $1,250. The car was somewhat worn, the speedometer was broken, but showed it had run 2,300 miles, and plaintiff authorized Clark to sell it to a dealer for $1,175. Clark was provided by plaintiff with circulars, literature, letter heads and cards used in its business. He went out into the State and after doing some business, reached Sterling, Illinois, where defendant was employed as a stenographer for one Burleigh, manager of the Novelty Iron Works, there located. Burleigh had previous to that time written to plaintiff and to the company they represented with a view to purchasing a car for his own use. Clark visited Burleigh at his office and in the presence of defendant presented the business card of plaintiff on which was printed in the lower left-hand corner, “ J. C. Clark, Territory Manager,” which words, it seems, were printed there without the knowledge or consent of plaintiff. He stated he had called in answer to Mr. Burleigh’s letters about the car, and produced a letter purporting to come from plaintiff and written on plaintiff’s stationery, congratulating him on the fine work he was doing and instructing him to sell the car for “I. E. H.” He named a price that he said those letters indicated, nine hundred and some odd dollars (the witnesses are not sure as to the exact amount), and said he would take the responsibility of shading' it down to $835. Clark had procured a public stenographer to write this letter on plaintiff’s letter head without plaintiff’s knowledge or consent. Defendant, being present at the time of this transaction with Burleigh, and knowing what there occurred, called on Clark later the same day.
    Abstract of the Decision.
    1. Principal and agent, § 113

      —when principal not hound by acts of agent having authority to sell personalty. The acts of an agent assuming to have authority to sell the personalty of the principal will not bind such principal unless he has actually given such authority, or held the agent out to the public as clothed with such authority, or has done acts which clothe such agent with apparent authority to sell such personalty.
    2. Principal and agent, § 113

      —when agent no authority to sell samples. A commercial traveler or other similar agent has Usually no authority to see his samples, such authority not being conferred simply by intrusting the possession of such samples to such agent.
    3. Principal and agent, § 102

      —what duty imposed on person dealing with agent to ascertain authority. A person dealing with an agent must use ordinary prudence and reasonable diligence where the character assumed by such agent is of a suspicious or unreasonable character, or if the authority sought to be exercised is of such an unusual or improbable character as to put an ordinarily prudent man on his guard, and such person dealing with such agent may not shut his eyes to the obvious facts, but should either refuse to deal with such agent or ascertain the real state of the ease from the principal.

      Defendant purchased and paid for the car, and Clark turned over the automobile to her. Plaintiff learned of the transaction when defendant wrote to it concerning defects and missing parts, on which a representative of plaintiff came to Sterling, and had conversation with defendant and Burleigh, after which this action was brought. There was a jury trial and a verdict for defendant.
    _ Philip H. Ward and Albert J. W. Appell, for appellant.
    J. J. Ludens, for appellee.

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

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

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

4. Principal agent, § 245 —when question whether defendant in buying from agent exercised prudence to ascertain authority for jury. In an action of replevin to recover possession of an automobile alleged to have been sold to defendant by an agent of plaintiff who had no authority to make such sale, the question whether defendant in dealing with such agent exercised ordinary prudence and reasonable diligence is a question of fact to be determined by the jury.

5. Principal and agent," § 245 —when question whether sale by agent was of such unusual character as to put prudent person on guard for jury. In an action of replevin to recover possession of an automobile alleged to have been sold to defendant by an agent of •'plaintiff, who had no authority to make such sale, the question whether the transaction between defendant and such agent was of such an unusual and improbable character as to put an ordinarily prudent man on his guard is a question of fact to be determined by the jury.

6. Principal and agent—when evidence sufficient to sustain finding that purchaser from agent acted with prudence. In an action of replevin to recover possession of an automobile alleged to have been sold to defendant by an agent of plaintiff who had no authority to make such sale, evidence held to show that defendant acted with ordinary prudence and reasonable diligence although she did not investigate to ascertain whether such agent had such authority, he having the automobile in his possession at the time of sale, and it appearing that such agent called on defendant’s employer in answer to a letter to plaintiff in regard to such automobile, and there being no facts of a suspicious, unreasonable unusual or improbable character in regard to the transaction which ought to have put defendant on inquiry.

7. Principal and agent, § 102 —when purchaser from agent not-negligent in failing to ascertain want of authority of agent. Where an agent who has no authority to sell an automobile which is in his possession offers it for sale to one who does not buy it, but the automobile is finally sold to one who acts on the information as to the authority of the agent which was possessed by the person to whom the automobile was first offered, such person cannot' be held negligent in not ascertaining the fact of such agent’s want of authority to make the sale if the person to whom it was first offered would not have been held negligent had he purchased the car without ascertaining such fact.

8. Principal and agent—when evidence sufficient to sustain finding that ordinarily prudent person would have made check for purchase payable to agent. In an action of replevin to recover possession of an automobile alleged to have been sold to defendant by an agent of plaintiff, who had no authority to make such sale, where defendant, a stenographer, paid such agent the purchase price thereof in money and drafts payable to the order of such agent, held that there was no reason for disturbing a verdict for defendant in so far as it rested on a finding that an ordinary prudent man would have paid for the automobile in the way in which defendant paid, instead of drawing a check payable to the order of the principal as a careful business man would have done.

9. Principal and agent, § 131 —when payment to agent talcing order invalid. Payment for goods ordered on future shipment is not valid as against the principal when made to a traveling salesman who takes orders for such goods.

10. Principal and agent, § 131 —when agent implied authority to receive payment. Generally an agent in possession of goods has an implied authority to receive payment therefor when sold by him.

11. Principal and agent, § 103 —when purchaser charged, with notice as to lack of authority of agent. One dealing with an agent selling goods by sample is charged with notice that samples are not generally placed in the hands of the agent for sale.

12. Principal and agent, § 165 —when principal estopped to deny lack of authority of agent to sell. Although .an agent cannot usually bind his principal beyond his authority, yet where the true owner of property holds out, or allows another to appear as being the owner or as having full power of disposition of the property whereby innocent third parties are led into dealing with such apparent owner, such third parties will be protected if they buy such property from such supposed owner, their rights in such case depending not on the actual title or authority of the person with whom they deal directly, but on the act of the owner which precludes him from disputing, as against such third parties, the existence of the title or power with which he has caused or allowed the party making the conveyance to appear to be invested.

13. Trial, § 150 —when question of fact arises for fury. Although in the trial of an action there is no dispute as to what the parties actually said and did in the transaction which gave rise to the action, yet where there are conclusions of fact to be drawn from the admitted facts there are still questions for the jury to determine, so that in such case it is not merely a question of applying the law to the facts.

14. Trial, § 191 —when evidence not sufficient to warrant direction of verdict. In an action of replevin to recover possession of an automobile alleged to have been sold to defendant by an agent of plaintiff, who had no authority to make the sale, evidence held not sufficiently clear to warrant the direction of a verdict, although' there was no dispute as to what the parties actually said and did in the transaction on which the action was founded.

15. Replevin, § 123 —when verdict not so clearly against tveight of evidence as to indicate bias. In an action of replevin by a nonresident corporation to recover possession of an automobile alleged to have been sold to defendant, a woman, by an agent of plaintiff who had no authority to make the sale, judgment for defendant held not so manifestly against the weight of the evidence as to indicate that the jury were biased because plaintiff was a nonresident corporation and defendant was a woman.

16. Appeal and error, § 866 —what abstract of record should contain. On appeal the appellant must present in his abstract of the record the matter relied on for reversal, as a reviewing court \yill not go into an examination of the record to see if errors have been committed in regard to matters not abstracted.

17. Replevin, § 147 —when instruction as to authority of, agent not misleading. In an action of replevin to recover possession of an automobile alleged to have been sold to defendant by an agent of plaintiff, who had no authority to make such sale, but where such agent had such automobile in his possession at the time the sale was made, and it appeared that defendant made no investigation as to such agent’s authority before purchasing, an instruction telling the jury to inquire whether plaintiff, by its actions, justified defendant in thinking that such agent had such authority, held not misleading open to- criticism, in that it did not direct the jury to inquire whether a “reasonably prudent man,” or person described by some similar expression, would have been, under the circumstances named, justified in thinking such agent had such authority.


text:
    George E. Edmondson for use of Warner’s Features, Inc., Appellant, v. Rudolph Pfeiffer, Appellee. George E. Edmondson for use of Kingan & Company, Ltd., Appellant, v. Rudolph Pfeiffer, Appellee.
    Gen. No. 6,098.
    (Not to be reported in full.)
    Abstract of the Decision.
    Contracts, § 349

      —when money due on contract can be recovered, only by persons for whose benefit contract made. In an action of garnishment where the funds sought to be garnished as belonging to defendant were paid to him under a written building contract whereby garnishee promised to pay to defendant the amount of his pay roll for the preceding week as shown by an itemized statement of the amount paid for all labor employed by Mm during the week on such buildings, and that on the following Monday defendant should furnish garnishee with a receipt in full payment for labor performed by each workman during such week, and which contract further provided that the clause referred to should be construed to mean that such amount was delivered to defendant for the express purpose of paying such pay roll, and not in any sense as a payment to defendant, who was forbidden thereby to use the amount for any other purpose, a ruling of the trial court construing such contract as creating a liability in favor of the workmen named in the pay roll held not erroneous, there being a direct promise to pay such amount for the benefit of such workmen, and it being probable that the clause was inserted in the contract to protect garnishee against liens which might have been preserved- but for such payment

      Appeal from the Circuit Court of Peoria county; the Hon. Theodore N. Green, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 20, 1915.
    Statement of the Case.
    Garnishment by George E. Edmondson, plaintiff, for use of Warner’s Features, Inc., and by George E. Edmondson for use of Kingan & Company, Ltd., a corporation, against Rudolph Pfeiffer, in the Circuit Court of Peoria county. From a judgment for garnishee, plaintiff appeals.
    Kirk & Shurtleff, for appellant.
    Evans & Evans, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.


text:
    W. J. Brennan v. William P. McEvoy & Company. F. J. Lewis Manufacturing Company, Appellant, v. Western Clock Company, Appellee.
    Gen. No. 6,101.
    1. Mechanics’ liens, §76

      —when material men protected by notice of claim, furnished to owner by contractor. Under section 5 of the Mechanics’ Liens Act of 1903 (J. & A, ¶ 7143), requiring an owner before making payment to a contractor to require of such contractor a verified statement in writing of the names of all parties furnishing material or labor, with the amounts due or to become due, a statement voluntarily furnished to the .owner by the contractor, if sufficient to comply with the statute, will protect a .material man named in such notice.
    2. Mechanics’ liens—when notice of claims furnished by contractor to owner insufficient. Under section 5 of the Mechanics’ Liens Act of 1903 (J. & A. ¶ 7143), requiring certain notice to be given to an owner before any payments are made to a contractor, a notice which fails to set out the amount due or to become due to any person furnishing labor or material named in such statement is insufficient to comply with the statute.
    3. Mechanics’ liens, § 73

      —what is effect of owner making payment to contractor without receiving statement of claims. An owner who makes payment to a contractor without requiring or receiving from such contractor a statement as required by section 5 of the Mechanics’ Liens Act of 1903 (J. & A. ¶ 7143), does so at his peril.
    4. Mechanics’ liens, § 6

      —necessity that statute he followed. One claiming a mechanic’s lien must rely wholly on the statute for his recovery, since such liens are not recognized either at common law or in equity in the absence of statute.

      5. Mechanics’ mens, § 5

      —statute strictly construed. Since mechanics’ liens are unknown at common law or in equity, a statute giving such right must be strictly construed, and one claiming such a lien must show a compliance with the provisions of such statute.
    6. Mechanics’ mens, § 73

      —when act of builder malting payment to contractor without requiring statement of claims of no avail against subcontractor. A builder who makes payment to a contractor without requiring the statement required in section 5 of the Mechanics’ Liens Act (J. & A. ¶ 7143) cannot claim credit for the amounts of such payments as against a subcontractor, where it affirmatively appears that the subcontractor gave the notice required by section 32 of the same act (J. & A. ¶ 7162).
    7. Mechanics’ mens—when owner may rely upon statement of claims furnished by contractor as against subcontractor. Under section 32 of the Mechanics’ Liens Act of 1903 (J. & A. ¶ 7162), a subcontractor may bind the owner by giving the notice provided by such statute notwithstanding that a notice has been given by the contractor under section 5 of the same act (J. & A. ¶ 7143), but in the absence of any such notice by such subcontractor the owner has the right to rely on such statement furnished by the contractor unless such owner knows from any source that the statements in such notice by the contractor are false, but in such case such subcontractor is protected to the extent, if any, to which an amount is named in such notice as due or to become due to such subcontractor.
    8. Mechanics’ mens—when duty of subcontractor to see that notice furnished by contractor to owner is complete. Under sections 5 and 32 of the Mechanics’ Liens Act of 1903 (J. & A. ¶¶ 7143, 7162), a subcontractor, if he fails to furnish to the owner a sufficient notice as required by such section 32, has the burden of seeing that a notice has been furnished by the contractor to such owner under such section 5, which is sufficient to protect such subcontractor.
    9. Mechanics’ mens, § 61

      —when subcontractor’s right to lien not defeated, by failure of owner to obtain from contractor statement of claims before paying contractor. Under sections 5 and 32 of the Mechanics’ Liens Act of 1903 (J. & A. ¶¶ 7143, 7162), the right of a subcontractor to a lien cannot, where both owner and subcontractor fail to comply with the statute, be made dependent on the omission of the owner to perform the duty of requiring from the contractor, before making payment to him, of a statement showing the claims of subcontractors and of those furnishing material or labor, together with the amounts due or to become due as required by such section 5, since the purpose of the statute was both to give notice to the owner of liens which might be established against Ms premises and to protect the claimants of such liens.
    Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 20, 1915.
    McEniry & McEniry, for appellant.
    Clarence Griggs and J. E. Coleman, for appellee.

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

Appellee, Western Clock Company, in the spring of 1912, contracted with Wm. P. McEvoy & Company, builders, for the erection of a building ón its premises in the City of Peru, Illinois, and an addition thereto, for the agreed price of $103,669.14. In the course of construction the builder became indebted to one Brennan for labor, and also to F. J. Lewis Manufacturing Company, the appellant, in a balan,ce of $1,043.68 for material furnished on and prior to December 27, 1912. Brennan on May 28, 1913, filed a petition for a mechanic’s lien upon the premises, making Wm. P. McEvoy & Company and the Western 'Clock Company parties defendant. Appellant filed an intervening petition setting up its claim, October 18, 1913, and filed an amendment thereto April 1, 1914. The cause was submitted to the master in chancery, who took proofs and reported the same to the court with his conclusion that appellant was not entitled to a lien on the premises because it did not comply with the statute requiring it to serve notice of its claim on the owner. The chancellor sustained the master’s report and entered a decree (which 'recites that it is based on the master’s report and on oral and documentary evidence) dismissing appellant’s petition, from which decree this appeal is taken.

There is no dispute about the facts. The controversy arises over the construction of three sections of our Mechanics’ Liens Act of 1903. Section 5 of that Act (J. & A. ¶ 7143) makes it the duty of the owner to require of the contractor, before making any payment to him, a verified statement in writing of the names of all parties furnishing material or labor, and of the amounts due or to become due, each.

Section 32 (J. & A. ¶ 7170) provides that no payments to the contractor shall be regarded as rightfully made as against the subcontractor, laborer or party furnishing labor or materials if made by the owner without exercising and enforcing the rights and powers conferred upon him in section 5 of the Act.

Section 24 (J. & A. ¶ 7162) provides that subcontractors, or party furnishing labor or material, may at any time after making his contract with the contractor, and shall within sixty days after the completion thereof, cause a written notice of his claim, and the amount due or to become due thereunder, to be personally served on the owner or his agent: Provided, such

notice shall not be necessary when the statement of the contractor provided for in section 5 shall serve to give the owner notice of the amount due and to whom due, but where that statement is incorrect as to the amount, the subcontractor or material man shall be protected to the éxtent of the amount there named as due or to become due to him.

Appellant did not serve any notice in compliance, or attempted compliance, with section 24. The owner did not demand of the builder a schedule under section '5, but the builder furnished him, the owner, two schedules in attempted compliance with the provisions of that section, the first of which is admittedly bad and to be disregarded. The second was furnished February 20, 1913, and purported to be a verified statement in writing of the names and addresses, not only of all parties furnishing material or labor and the amount due, but also the names of parties who had made bids or proposals for subcontracts or for material, and the amount of such bids or proposals where same have not been let or accepted. There were seventeen of those items set out in the statement, one of them being, F. J. Lewis Manufacturing Co., $1,150, tar, and nothing in the statement from which it could be ascertained whether F. J. Lewis Manufacturing Company was one of the parties that had a subcontract, or one of the parties who had made a bid that had not been accepted. It is suggested by appellant, though not much argued, that this statement should be construed as a compliance with said section 5, which not only makes it the duty of-the owner to require a statement, as before pointed out, but also makes it the duty of the contractor to give the owner a statement. It is true if a statement in compliance with the provisions of section 5 had been voluntarily furnished the owner by the builder, appellant would have been protected thereby, and it is therefore material whether this was such a statement. Appellee argues that it was not for several reasons, among them the reason above suggested that it cannot be construed as a notice that any amount was due or to become due the appellant. We think the point well taken, and without discussing other suggestions of appellee as to the sufficiency of the statement under the statute, we hold that it was not a compliance with the statute, and that the case must be considered as though no notice of appellant’s claim had been served by the builder on the owner.

The owner had, before the commencement of this suit, paid to the contractor, and on his account to various subcontractors and laborers, sums of money at various times amounting to its full indebtedness, and all was paid before the 20th of February, 1913, the date when the above statement that we have held bad was served on the owner, except one item of $900 paid March 25,1913, to a subcontractor.

As we have seen, the Mechanics’ Liens Act of the Legislature provides, in substance, that an owner making payments to the original contractor, without requiring or receiving from such contractor a statement of the claims of subcontractors, does so at his peril, ánd also provides that a subcontractor wishing to avail himself of the benefits of the act must serve a notice of his claim on the owner within a time and in a manner provided. What are the rights of the owner and the subcontractor if neither has complied with the above provisions of the statute is the question here presented. Appellant must rely entirely on the statute for his right of recovery. Mechanics’ liens are not in the absence of statute recognized by the common law or in equity. Therefore the statute must be strictly construed. Turnes v. Brenckle, 249 Ill. 394; Schmidt v. Anderson, 253 Ill. 29; LaCrosse Lumber Co. v. Grace M. E. Church, 180 Ill. App. 584. A party securing a lien under the Mechanic’s Lien Law must show compliance with its provisions. Cary-Lombard Lumber Co. v. Fullenwider, 150 Ill. 629. Our Supreme Court held, construing the Mechanics’ Liens Act as amended in 1887, which provided for statements to be made to the owner by both the contractor and the party desiring a lien, that while the owner had the right to refuse payment until the contractor furnished the statement required by law that the right of the subcontractor to a lien did not depend upon the omission of the owner to do or perform any act, but did depend upon something he, the subcontractor, must himself do unless the necessity was avoided by the act of the original contractor in furnishing the sworn statement. Butler & McCracken v. Gain, 128 Ill. 23. But that act was not, in these respects, identical with that of 1903. We are referred to no case, and know of none, directly determining the question here presented as to the construction of the Act of 1903. It is claimed by appellant’s counsel that the question was presented to the Supreme Court in Rittenhouse & Embree Co. v. Warren Const. Co., 264 Ill. 619, and was not passed on because the case was decided on other grounds. It appears on page 623 of the opinion that the builder made payments to the contractor without obtaining statements from the contractor, as provided in section 5, and the trial court held under the provisions of sections 21 and 32 (J. & A. ¶¶ 7159, 7162) that the builder could not claim credit against the subcontractor because of that fact, but it does not appear that the subcontractor had failed to make the statement provided in section 24. If it did so appear the case would be authority in support of appellant’s contention here, for the court said on page 620: ‘ ‘ There is no controversy * * * that appellee took all of the necessary steps to'perfect a mechanic’s lien under the Mechanic’s Lien Law of 1903.” In the case of the American Radiator Co. v. Blakie, 165 Ill. App. 404, sections 5 and 32 of the Act are quoted and commented upon, and it is said that the builder, not having required the statement provided in section 5, did not, by payment of the amount due the original contractor, relieve his property from a lien in favor of the subcontractor there under consideration. But it affirmatively appears in that case that the subcontractor had complied with section 24 in giving notice of his claim to the owner. It is held in Knickerbocker Ice Co. v. Halsey Bros., 262 Ill. 241, that where a subcontractor does not serve the notice required of him, the owner has a right to rely upon an original contractor’s statement furnished under section 5. In that case the owner had acted on such statements and they were false, and the court said on page 245: “If any subcontractor is not satisfied to rely upon the contractor in the making of these stateménts and to abide by the statements as made, it is his privilege, under the statute, to serve an independent notice upon the owner, of the amount due or to become due under his subcontract, which shall bind the owner notwithstanding any statement made by the contractor. In the absence of any such notice served by the subcontractor the owner has the right to rely and act upon the sworn statements made to him under said section 5 by the contractor, unless he knows, from any source, that' the same are false.”

It is therefore settled law that in case the subcontractor makes no statement under section 24, and the original contractor makes false statement under section 5, the owner is protected in acting on that false statement, but the subcontractor is protected to the extent of any amount named in such false statement as due or to become due to him.. To this extent the burden is placed on the subcontractor to see that a. correct statement is made by the original contractor to the owner, and, if so made, there is no necessity for him, the subcontractor, to protect himself by complying with the provisions of section 24. But if a false or incorrect statement is made under section 5, then the subcontractor must protect himself by making the statement required by section 24. It seems to us reasonably to follow that if the subcontractor makes the necessary investigation as to the statement furnished by the original contractor to the owner, and instead of learning that a false statement to his detriment has been made, he learns that no statement in compliance with the law has been made, that he should then be required to make the statement provided in section 24. That section does not, in terms, limit the requirement to cases where the original contractor’s statement is incorrect. It absolutely requires the subcontractor to make it as a condition precedent to establishing his lien. It is easily perceived why he should be relieved from making it if the owner was already furnished by the original contractor’s statement with the information required to be given him by the, subcontractor. The purpose of these enactments was to give the owner notice of claims that might be the foundation of liens against his premises, and also to protect such claimants, and it does not seem to us that a subcontractor, himself in default in observing the mandate of the statute, should be permitted to establish a lien against the owner on the ground that he, the owner, was also in default in observing a statutory requirement, which observance might have apprised him of the subcontractor’s claim and relieved the subcontractor of the statutory duty imposed upon him.

We are of the opinion that under the Act of 1903, as well as under the law in force in 1887, the right to a lien cannot be made to depend alone upon the omission of the owner to do or perform the duty imposed upon him by the statute.

Appellee suggests other reasons for affirming the decree which may have some force, but we are asked by both parties to construe this statute, and have concluded to let our decision rest on that ground. The decree is affirmed.

Affirmed.


text:
    Emma Kime, Appellee, v. Samuel Kime, Appellant.
    Gen. No. 6,104.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 20, 1915.
    Statement of the Case.
    Bill for separate maintenance by Emma Kime, complainant, against Samuel Kime, defendant, in the Gircuit Court of Grundy county, on the ground of cruel and abusive treatment and other misconduct. From a decree in favor of complainant, defendant appeals.
    Abstract of the Decision.
    1. Husband and wife, § 264

      —when evidence sufficient to sustain verdict on Mil for separate maintenance. In a bill for separate maintenance on the ground of cruel and abusive treatment, a verdict and finding for complainant held sustained by the evidence.
    2. Appeal and error, § 1401

      —when verdict will not be disturbed on appeal. In an action where the finding made depended largely on the opportunity which the court and jury had of judging of the credibility of the witness, such finding will not be disturbed on review in the absence of substantial error of law found in the record.
    3. Appeal and error, § 1491

      —when failure to exclude question not prejudicial error. Although a question is leading and suggestive, the failure of the court to- exclude the question will not be deemed to be substantial error, where an examination of the testimony shows that defendant was not prejudiced by the ruling of the trial court in permitting the question to be answered.
    4. Instructions, § 109

      —when instruction not improperly refused because not applying the pleadings. In a bill for separate maintenance, where defendant’s pleadings did not charge complainant with adultery, and where defendant as a witness expressly disclaimed such charge, an instruction informing the jury of the evidence necessary to establish such charge and the effect of a con-donation of the offense, held proper where the attention of the jury was directed to the question whether complainant had been guilty of adultery by defendant’s introduction of • evidence tending to show that he had grounds for being jealous of complainant

      The answer denied and explained the charges, and accused complainant of much wrongdoing. There was a jury trial and a verdict for the complainant and finding that at the time of filing her bill of complaint she was, and that she now is, living separate and apart from her husband without her fault.
    Cornelius Reardon and Frank L. Flood, for appellant.
    Clyde H. Thompson and Frank H. Hayes, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.

5. Husband and wife, § 267 —what is effect of errors on trial by jury in suit for separate maintenance. Since in a separate maintenance proceeding the verdict of a jury is merely advisory, which the court may disregard and enter such decree as in his judgment equity demands, questions of errors of law, in rulings on evidence, and in instructions are of less importance than in a common law or divorce proceeding, where a jury trial is a matter of right.


text:
    Ernest L. Erickson, Administrator, Appellee, v. American Well Works, Appellant.
    Gen. No. 6,107.
    1. Workmen’s Compensation Act—what is effect of lack of negligence or lack of due care upon 'right to recovery. Under the Workmen’s Compensation Act (J. & A. ¶ 6449 et seq.), it is not necessary to a recovery that the accident should have been caused by the negligence of the master or that the servant should have been in the exercise of due care when injured.
    2. Negligence, § 66

      —what constitutes contributory negligence. Where a person is injured as a result of his negligence or want of due care, such person is always carelessly doing something which a prudent man would not have done under similar circumstances, or omitting something which reasonable prudence requires of such person.
    3. Workmen’s Compensation Act—when employee right to recover although his negligence proximate cause of injuries. Under the Workmen’s Compensation Act (J. & A. ¶ 5449 et seq.), a recovery cannot be denied although it is possible or even probable that the proximate cause of the injuries for which compensation is sought was the negligence of the claimant.
    4. Workmen’s Compensation Act, § 11

      —what is effect upon right to recover compensation of performing act outside course of employment. Under the Workmen’s Compensation Act (J. & A. ¶ 5449 et seq.), compensation cannot be recovered for injuries resulting to, an employee while engaged in acts not in the course of his employment.
    5. Workmen’s Compensation Act, § 11

      —when employee putting head out of moving elevator engaged in usual course of employment. In an action under the Workmen’s Compensation Act (J. & A. ¶ 5449 et seq.), to recover compensation for the death of a plaintiff’s intestate as a result of being caught in an elevator shaft in a building where he was employed by defendant, which elevator decedent was operating at the time of the accident, being engaged in hoisting certain frames from one floor of the building to another by means of such elevator, held that at the time of the accident decedent was engaged in the usual course of his employment, although there was evidence that decedent put his head out of the door of the moving elevator and thereby contributed to the injury sustained, such evidence being construable merely as indicating a want of due care.
    6. Workmen’s Compensation Act—when yearly earning poiver properly computed. In an action under the Workmen’s Compensation Act (J. & A. ¶ 5449 et seq.), to recover for the death of plaintiff’s intestate as a result of injuries sustained in an accident occurring while decedent was in the employ of defendant, where it appeared that at the time of his death decedent was twenty-two years of age, of more than average education, and had been working for defendant at various times and in various capacities for five years prior to the accident, his last employment by defendant commencing two weeks before the accident and involving duties mainly of superintendence at a wage of $3 per day, a finding which computed the yearly earning power of decedent under clause d of section 6 of such act (J. & A. ¶ 5455), providing that in certain cases such earning power may be computed by taking three hundred times the average amount earned by decedent during the days preceding the accident, held not erroneous, and that the result attained was fair and reasonable.
    7. Workmen’s Compensation Act—when substantial damage presumed from relationship. The law will presume from relationship alone that a wife, child or parents of a decedent will suffer some substantial damage as a result of the death of such decedent.
    8. Statutes, § 203

      —what is effect of punctuation in construing statutes. The punctuation used in a statute is helpful in its construction although such punctuation does not control such construction.
    9. Workmen’s Compensation Act, § 102—when son contributes to support his parents. A son living with his parents and paying them for his board and lodging at a price ordinarily paid for such board and lodging at boarding houses is contributing to the support of such parents.
    10. Workmen’s Compensation Act, § 1

      —how construed relative to contribution to support of parents. In an action under the Workmen’s Compensation Act (J. & A. ¶ 5449 et seq.), to recover for the death of plaintiff’s intestate as a result of an accident occurring while decedent was in the employ of defendant, such action being brought for the benefit of decedent’s father, the words “to whose support he has contributed within five years previous to his death” in clause a of section 4 of the Act (J. & A. ¶ 15452), held to qualify the word “parents” as well as the words or other “lineal heirs,” also found in such clause of such section, there being no comma after the word “parents” and before the words “lineal heirs,” for which reason the section requires, as a prerequisite to a recovery in behalf of parents, evidence that decedent had contributed to the support of such parents within five years prior to his death, and such construction is not affected by the fact that similar language is used in clause 1 of section 5 of such Act (J. & A. ¶ 5453), relating to the payment of compensation accruing in the lifetime of the employee in case of his death before the total of the payments equals the amount of a death benefit, wherein the word “parents” is separated from the words “or other lineal heirs” by a comma.
    11. Workmen’s Compensation Act, § 10

      —when son contributing to support of parents. In an action under the Workmen’s Compensation Act (J. & A. ¶ 5449 et seq.), to recover compensation for the death of plaintiff’s intestate as a result of an accident happening while decedent was employed by defendant, held that decedent was contributing to the support of parents within the meaning of section 5 of such act (J. & A. ¶ 5452),- fixing the amount of compensation to be recovered in case of the death of an employee who “leaves * * * parents * * * to whose support he had contributed within five years previous to his death,” where it appeared that within the time named decedent had resided with his parents and paid to them an amount equal to that usually paid for board and lodging in boarding houses, and that decedent later increased the amount paid such parents in consideration of the necessities of such parents.
    12. Workmen’s Compensation Act, § 12

      —when evidence of habits of employee admissible. In an action under the Workmen’s Compensation Act (J. & A. ¶ 5449 et seq.), to recover for the death of plaintiff’s intestate as a result of injuries sustained by being caught in an elevator shaft in a building where decedent was employed by defendant, and was at the time of the accident operating such elevator, such action being tried by the court without a jury, evidence of the careful habits of deceased held competent, though there were eyewitnesses of the accident.
    Appeal from the Circuit Court of Kane comity; the Hon. Clinton F. Irwin, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 20, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    J. C. Murphy and E. L. Lyon, for appellant.
    John M. Raymond and John K. Newhall, for appellee.

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

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

John O. Erickson, appellee’s intestate, while in the employ of the American Well Works, the appellant, on July 16,1912, was caught in the shaft of an elevator that he was operating and received an injury that caused his instant death. These parties were subject to the provisions of the Workmen’s Compensation Act approved June 10, 1911, in force May 1, 1912 (Jones & Addington’s Annotated Statutes, vol. 3, page 2914, ¶ 5549 et seq.). It is not the act now in force. There was an arbitration under the provisions of the statute, and an appeal to the Circuit Court, where a jury was waived and the case tried by the court who entered a judgment against appellant for $3,500, to be paid in instalments as in the act provided, from which judgment this appeal is prosecuted.

Under this statute to warrant a recovery the injury sustained by the employee must be one “Arising out of and in the course of the employment.” The amount and manner of payment of compensation for an injury resulting in death is provided in section 4 of the Act (J. & A. ¶ 5452), and is as follows: “a. If the employé leaves any widow, child or children, or parents or other lineal heirs to whose support he had contributed within five years previous to the time of his death, a stun equal to four times the average annual earnings of the employe, but not less in any event than one thousand five hundred dollars, and not more in any event than three thousand five hundred dollars. Any weekly payments, other than necessary medical or surgical fees, shall be deducted in ascertaining such amount payable on death.

“b. If the employé leaves collateral heirs dependent upon his earnings, such a percentage of the sum provided in section “a” as the contributions which deceased made to the support of these dependents, bore to his earnings.

“c. If the employé leaves no widow or child or children, parents or lineal or collateral heirs dependent upon his earnings, a sum not to exceed one hundred and fifty dollars for burial expenses.

“d. All compensation provided for in this section to be paid in case injury results in death, shall be paid in installments equal to one-half the average earnings, at the same intervals at which the wages or earnings of the employé were paid while he was living; or if this shall not be feasible, then the installments shall be paid weekly.

‘ ‘ e. The compensation to be paid for injuries which result in death, as provided for in this section, shall be paid to the personal representative of the deceased employé and shall be distributed by such personal representative to the beneficiaries entitled thereto, in accordance with the laws of this State relating .to the descent and distribution of personal property. ’ ’ There follows a clause in section 5 (J. & A. ¶ 5453), to which our attention is called.as perhaps bearing on the construction of the above-quoted statute, which is as follows: “Death. (1) In case death occurs before the total of the payments made equals the amount payable as a death benefit, as provided in section 4, article a, then in case the employé leaves any widow, child or children, or parents, or other lineal heirs, they shall be paid the difference between the compensation for death and the sum of such payment, but in no case shall this sum be less than $500.00.”

The basis for computing compensation is given in section 6 of the Act (J. & A. ¶ 5455). The part of the section necessary to be considered here reads as follows: “a. The compensation shall be computed on the basis of the annual earnings which the injured person received as salary, wages or earnings in the employment of the same employer during the year next preceding the injury.

“b. Employment by the same employer shall be taken to mean employment by the same employer in the grade in which the employé was employed at the time of the accident, uninterrupted by the absence from work due to illness or any other unavoidable cause.

“c. The annual earnings if not otherwise determinable shall be regarded as 300 times the average daily earnings in such computation.

“d. If the injured person has not been engaged in the employment for a full year immediately preceding the accident, the compensation shall be computed according to the annual earnings which persons of the same class in the same or in neighboring employments of the same kind have earned during such period. And if this basis of computation is impossible, or should appear to be unreasonable, three hundred times the amount which the injured person earned on an average on those days when he was working during the year next preceding the accident, shall be used as a basis for the computation.”

There is no dispute about the material facts. John O. Erickson, the deceased, was, on the day of the fatal accident, an unmarried man twenty-two years old, and had then been working for appellant about two weeks in moving patterns from one building to another: There was a great number of these patterns of various sizes, from a few inches to several feet in diameter, and some of them were carried to the upper floor of the building to which they were moved by means of an elevator. He was furnished two men, who, under his direction, did most of the manual labor. His principal duty was to keep track of the patterns, check them up, and keep a record of where they were placed. He had theretofore used the elevator in which the accident happened, operating it himself, in the course of such employment, and was so using it at the time of the injury. In years past deceased had attended high school for two years but did not graduate. Worked for some time for a printing company and five or six years for appellant. Attended school at Rock Island a year immediately before going to work for the appellant the last time. He intended to enter the ministry, which would require three or four years more of schooling. At the time of his injury he was earning $3 a day. He had never earned higher wages. During the five years before his death his home had been in his father’s family, consisting of the father, and mother, himself and his two brothers, until November, 1910, when the mother died. The father and mother kept house and the three boys lived with them. The boys were all engaged in some kind of. employment. The father was sixty-one years old, a laborer, at wages ranging from $1.75 to $2.20 a day, and had no means of support other than his wages and what his children might aid him. After the mother died, a relative kept house for them about a year, and then the housekeeping was abandoned and the boys rented rooms elsewhere from September, 1911, to the time of the death. While the family lived together deceased paid his parents for a time $4 a week for his board, room and washing, but three or four years before the accident he began paying $5 a week for the same service because he thought it necessary that they have more support. This was the .only way that hé contributed to the expense of the family. The amount that he so paid was not in excess of the usual price in that community for what he received therefor.

There was no eyewitness to the accident, and uncontradicted evidence was introduced that deceased was a man of careful habits^ The elevator had, a short time before the accident, been installed in a four-story building and was operated by the party using it. There is some evidence that the operator might get an electric shock in using the elevator. The evidence does not show negligence of the appellant contributing to the accident, and there is some ground for the inference that deceased may have carelessly put his head out of the elevator door while it was moving, and himself have been guilty of contributory negligence in so doing that would preclude a recovery in the absence of this statute even had appellant been negligent.

It is not necessary to a recovery under the provisions of this statute that the injury be the fault or negligence of the master or that the injured party be in the exercise of ordinary care. Appellant admits this, but says that notwithstanding these provisions of the law, a servant, while in the employment of his master, may be injured by his own act that is so reckless and unnecessary that it cannot be said that the act was performed in the course of his employment and that this is such a case, and he cites authorities in support of that proposition of law and we presume it is good law. Among the authorities so cited is the case of Brown v. City of Decatur, 188 Ill. App. 147. The court there cited and discussed several authorities on that question, and said: “The criterion is, what was the deceased doing, and not what was the manner in which he was doing it,” and held under the circumstances of that case that the injury was received in the course of the servant’s employment. In case of an accident resulting from the want of due care, in other words negligence, of the injured party, he is always carelessly doing something that a prudent man would not do under the circumstances, or failing to do something that reasonable prudence requires of him. This statute, as we have seen, gives a right of recovery notwithstanding the negligence of the injured party, and. to give the statute any effect the right of recovery must not be denied because it is possible or even probable that the proximate cause of the injury was the negligence of the claimant. We presume, using an extreme illustration, had deceased deliberately attempted to descend from the fourth floor to the first floor of the building by jumping down the elevator shaft instead of using the elevator, that it would have been a reckless act that could not be said to be performed in the course of his employment, and that no doubt less marked acts of recklessness might be so considered; but we are of the opinion that the facts in this case, under the authorities cited, and particularly under the authority of Brown v. City of Decatur, supra, and the authorities there discussed and reviewed, do not bring the case within that class, but at most can only be construed as indicating a want of due care by the deceased.

Under the provisions of section 6, before quoted, as deceased had not been employed by appellant during the year next preceding the accident, it was necessary to make the computation under clause d of that section and base the finding on the annual earnings of persons of that class, or if that should appear .to be unreasonable, three hundred times the amount which the injured person earned on an average in those days when he was working during the year next preceding the accident. The court evidently used the last-suggested basis and found an annual earning of $900 a year on the basis of $3 a day, that deceased had been earning immediately before the accident. This action of the court is complained of, and appellant insists that under the facts the finding of earnings could only have been based on the annual earnings of persons of that class; that there was no evidence of such annual earnings, and therefore no basis in the testimony for a finding of $900 a year. We do not think the court erred in this respect. It would not have been easy, and perhaps not “reasonable,” to undertake to find what people in that class were earning. The work at which deceased was employed was not a common every-day work in which wages could be easily ascertained and proven, and while it is true that it would be unfair to base annual earnings on what an employee had been receiving for a short time before his injury at some unusual and perhaps high priced employment, it is a matter of common knowledge that the wages of 30 cents an hour, or $3 a day, were not above the range of wages that people like deceased are able to earn. The result reached is apparently fair and reasonable.

Finally appellant contends that deceased had not “contributed within five years previous to the time of his death” to the support of his father, and therefore appellee was not entitled to recover anything under clause a of section 4, but could only recover under clause c for burial expenses an amount not exceeding $150. Appellant contends that the words in clause a “to whose support,” etc., qualify not only the preceding words “lineal heirs,” but also the preceding word “parents,” and he says they also qualify the words “widow, child and children,” therefore that no party answering to any of those descriptions is entitled to anything under that statute unless there is proof that deceased had contributed to the support of such person within five, years previous to his death. Appellee answers this contention by saying that there is proof that deceased contributed to the support of his father within that period of five years, and he also insists that the words “to whose support he had contributed,” etc., only qualify the words “lineal heirs,” and says it is absurd to suppose that the Legislature intended that the widow or children should not be entitled to recover without proving that deceased had contributed to their support within five years, and calls our attention to decisions of the Supreme Court under the Injuries Act (J. & A. ¶ 5449), and particularly to Dukeman v. Cleveland, C., C. & St. L. Ry. Co., 237 Ill. 104, holding that the law presumes some substantial damage from the relationship alone in case of wife, child or parents of deceased, and says that the law was enacted in favor of those dependent upon the deceased; that the Legislature knew the construction of the former law in relation to the presumption of dependency of parents, and therefore must have intended the qualifying words to apply only to the immediately preceding words, “lineal heirs.” If there were a comma after the word “parents” the meaning contended for by appellee would quite likely be gathered from a first reading of the clause, but no comma is there found and we do not see that the fact that a comma is found'after the word “parents” in clause (1) of section 5 (J. & A. ¶ 5453) before quoted, helps appellee’s contention. While punctuation does not control, it is helpful in construing statutes. Appellant while admitting and arguing that these provisions were enacted for the benefit of dependents and that dependency must be proven as a basis of recovery, says that the statute must be literally construed and a recovery permitted only when some provision of the statute authorizing the recovery can be found; that it is an entire change from the theory of the recovery under the Injuries Act under which we are required to look forward and indulge in presumptions of what the deceased might have done for his dependent relatives in the future had he lived; that here we must look backward, and if he has not contributed to the support of any relative within five years immediately preceding his injury, it is immaterial what prospects there might be that he would have contributed had he lived, and there can be no recovery. However reasonable the construction placed on that clause by appellee may be, we doubt whether it can be properly so read. But we do not regard it necessary to determine that question in this case. Assuming that the right of recovery must rest on some proof that deceased contributed to the support of his father within a period of five years before his death, we think the record furnishes such proof. We think without doing violence to language as commonly spoken and understood, that a son living with his parents and paying the price for his board and lodging that is ordinarily paid at boarding houses may be said to be contributing to their support. Instances are very numerous where the parents, or the mother if she survive the father, are living in comfort relying entirely on what the children pay for their board and lodgings at the home. The home is in that way kept up and supported. In most such cases the parents have neither the inclination nor ability to keep a boarding house and in that way provide the support that their children so give them. We therefore hold that in this case the deceased was contributing to the support of his father within the five-year period, and that for that reason, even on appellant’s construction of the statute, the recovery was warranted. It also appears from the evidence that the price of $5 a week that he had paid for his board was not based on the calculation of how much that board was actually worth, but rather on the consideration of the parents’ necessities. As we have before said, the father was an old man with no means and small earning capacity. We are of the opinion that the judgment may well rest on appellant’s construction of the statute.

It is not argued that the judgment is excessive except for the reasons that we have above considered and discussed. There is some objection made that the court permitted proof of the careful habits of deceased because there was no eyewitness to the accident, and it is claimed that there was evidence other than that of eyewitnesses as to how the accident occurred, therefore such proof of deceased’s habits was not competent. This question of admission of proof is of little importance because the hearing was before the court without a jury. The inquiry is whether the court should have considered such evidence in arriving at his conclusion. We are of the opinion that the evidence was competent, though perhaps not very material, and could have been properly considered by the court. Finding no error in the record the judgment is affirmed.

Affirmed.


text:
    Burton A. Hitchcock, Executor, Appellee, v. Board of Home Missions et al., Appellants.
    Gen. No. 6,111.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. Theodore N. Green, Judge, Presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 20, 1915.
    Statement of the Case.
    Action by Burton A. Hitchcock, executor, plaintiff, against the Board of Home Missions, and the Troy Orphan Asylum, defendant, in the Circuit Court of Peoria county.
    This case has been before this court before (Hitchcock v. Board of Home Missions, 175 Ill. App. 87) and before the Supreme Court on appeal from this court (Hitchcock v. Board of Home Missions, 259 Ill. 288). The Circuit Court had refused to allow solicitor’s fees to the Troy Orphan Asylum, appellant here. This court held that it had erred in so doing, and the Supreme Court affirmed that part of the decision of the court and remanded the cause with directions “to allow the Troy Orphan Asylum a reasonable solicitor’s fee.”
    Abstract of the Decision.
    Costs, § 75

      —when attorney’s fees for services rendered on appeal properly denied by trial court upon remanding of cause. Where the Supreme Court reversed a decree In an action with mandate to allow a party “a reasonable solicitor’s fee,” the decree of the trial court sustaining a master’s report refusing to consider the value of services rendered on appeal, and allowing only a reasonable fee for services rendered prior to the decree originally appealed from, held not erroneous where nothing in the pleadings raised the question of the allowance of such fees for services rendered on appeal, for the reason that without such pleading such question could not be and was not decided in the decree appealed from by this appeal.
    After the cause was redocketed in the Circuit Court, proceedings were had before a master in chancery who refused to hear evidence or consider the value of attorney’s services rendered to the Troy Orphan Asylum, either in the appeal to the Supreme Court or to this court, and reported the sum of $1,000 as a reasonable fee for the services rendered prior to the original decree in the Circuit Court. On objection and exception by defendant Troy Orphan Asylum to that part of the master’s report which refused to consider the value of services rendered on the two appeals, the chancellor sustained the report.
    From a decree allowing defendant Troy Orphan Asylum an attorney’s fee of $1,000 for services rendered prior to the original decree in the Circuit Court and denying such fees for services rendered on appeal, defendant Troy Orphan Asylum appeals.
    Luther C. Hinkle, for appellants.
    No appearance for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.


text:
    Charles H. DeWolfe, Appellee, v. Harlan W. Pierce et al., Appellants.
    Gen. No. 6,114.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Stark county; the Hon. Theodore N. Green, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 20, 1915.
    Statement of the Case.
    Action by Charles H. DeWolfe, plaintiff, against Harlan W.- Pierce et al., defendants, in the Circuit Court of Stark county, to recover for personal injuries sustained by falling through a hole in the floor of defendants’ store building. From a judgment for plaintiff for two hundred and fifty dollars, defendants appeal.
    It appeared that defendants were conducting a hardware store and tin shop in the City of Toulon in a building (or two adjoining buildings) having two entrances from the street. One entrance was to the general store room where smaller articles were kept. That room was kept heated and was the usual place for customers to enter. The other was to a room that defendants call a warehouse, but in which was kept for sale stoves and heavier articles. This room was not kept heated, and the entrance was by means of a sliding door. Back of this room was a tin shop where one of the brothers worked. There was a door from each of the rooms into this tin shop. Before the time in question defendant’s customers, desiring to purchase some of the larger articles, or having business in the tin shop, sometimes used the doorway into the so-called warehouse.'
    A short time before the accident a drayman in unloading a stove had broken a hole in the floor just back of this sliding door, and defendants had placed a stove over the broken board so that customers entering in that way would not fall in the opening made. On the day of the accident the stove was removed and one of the defendants was engaged in repairing the floor. He had removed the stove and gone out of the room for a short time to get something needed in the repair, leaving the sliding door partly open, and while he was gone plaintiff, entering the store, stepped in the hole, receiving a quite serious injury. The defense was that plaintiff was a licensee on defendant’s premises when injured.
    Abstract of the Decision.
    1. Negligence, § 131

      —when no variance as to place where injury sustained. In an action to recover for personal injuries where the declaration alleged that plaintiff’s injuries were sustained by falling through a hole in defendants’ “store building,” and the evidence showed that the hole in question was in the floor of a warehouse used in connection with defendants’ store, held no variance, the warehouse under the evidence being properly denominated a store building.
    2. Negligence, § 24

      —when owner not liable for injuries to person entering premises by permission only. One entering premises by permission only, without enticement, allurement or inducement held out by the owner or occupant, cannot recover for injuries caused by obstructions or pitfalls existing in the premises.
    3. Negligence, § 23

      —when person entering premises not mere ' licensee without invitation. In an action to recover for personal injuries sustained as a result of defendants’ alleged negligence by falling through a hole in the floor of an entrance to a building where defendants conducted a tin and hardware business, it appearing that the entrance in question through which plaintiff sought to enter such store was not the entrance provided for the purpose, held that plaintiff was not a mere licensee without invitation so as to excuse defendants from the duty of exercising care to keep such entrance free from danger where it appeared that the entrance in question was so used by customers entering the store with sufficient frequency to charge defendants with knowledge that it was being so used, in which case an invitation so to use that entrance is to be implied.

      J. H. Rennick and T. W. Hoopes, for appellants.
    James H. Andrews and Charles W. Espey, for appellee.

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

4. Negligence, § 205 —when instruction ignoring issue not prejudicially erroneous. In an action to recover for personal injuries sustained as a result of defendants’ alleged negligence by falling through a hole in the floor of an entrance to a building wherein defendants conducted a tin and hardware business, where the defense was that at the time of the injury .plaintiff was a mere licensee without invitation, an instruction ignoring the question whether plaintiff at such time was an invitee of a licensee held not prejudicially erroneous, where a further instruction told the jury that plaintiff could not recover unless the evidence showed that the building in question was a store building into which the public was invited to enter, and where the proof was clear and convincing, and where the instructions, as a whole, were as favorable to defendants as they had a right to ask.

5. Negligence, § 198 —when question whether plaintiff exercised due care for jury. In an action to recover for personal injuries alleged to have been sustained by reason of defendants’ negligence, the question whether at the time of the injury plaintiff was in the exercise of due care for his own safety is for the jury.

6. Negligence, § 188 —when evidence sufficient to sustain finding as to exercise of due care Toy plaintiff. In an action to recover for personal injuries sustained by falling through a hole in the floor of an entrance to a building wherein defendants conducted a tin and hardware business, which defect in such floor was alleged to be due to defendants’ negligence, evidence held to justify the jury in finding that at the time of the injury plaintiff was in the exercise of due care for his own safety.

7. Damages, § 115 —when verdict for personal injuries not excessive. In an action to recover for personal injuries sustained as a result of defendants’ alleged negligence by falling through a hole in the floor of an entrance to a building wherein defendants conducted a tin and hardware business, where plaintiff in his testimony sought to magnify the injuries sustained by him as a result of the accident, a verdict of two hundred and fifty dollars for plaintiff held not excessive.