text:
    Wilbert Roberts, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Edgar county; the Hon. John H. Maeshahl, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.
    Rehearing denied December 2, 1916.
    Statement of the Case.
    Action by Wilbert Roberts, plaintiff, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, defendant, under the Federal Employers’ Liability Act for personal injuries. From a judgment for plaintiff for $4,500, defendant appeals.
    Plaintiff, a boy under twenty years of age, was one of defendant’s employees, who, with fifty or more others, were conveyed by defendant daily between their homes at or near Evansville, Indiana, and the place where the work they were engaged in was being prosecuted. The conveyance employed on the day in question to transport these laborers was a locomotive, to the rear end of which was attached a tender and to the front end of which one coach was attached, the engine being run backward, pushing the tender and pulling the coach. It was being run by a man who was not a regular engineer and who had never run this engine over this track before. This the plaintiff did not know. There was some evidence tending to -show that when plaintiff and his colaborers boarded the conveyance on the day in question, the acting engineer invited plaintiff to get into the cab of the engine. He got into and was riding there when the accident occurred, and there was evidence tending to show he had ridden there several times before, and that others frequently rode there. There was also evidence tending to show that at a point about half a mile south of the town of Oynthiana, Indiana, there was a place in the roadbed where the ground was spongy and soft, the ties defective and rotten, and the joints of the rails uneven and out of alignment. This the plaintiff did not know. When the train reached this place the tender and locomotive left the track and turned over, injuring the plaintiff. There was also evidence tending to show that this engine was being run at an excessive rate of speed in view of the condition of the roadbed there.
    Defendant urged as reasons why the cause should be reversed that plaintiff had neither by his declaration nor his proof shown a right to be in the cab of the engine ; that both the declaration and proof showed that plaintiff was a trespasser; that he was guilty of contributory negligence; and that he assumed the risk incident to the place where he was riding.
    The first three counts of the declaration charged, in substance, that defendant was a common carrier corporation engaged in interstate commerce; that plaintiff was in its employ; that he was, on the day in question, being transported by defendant from his home to his work some twenty miles distant; that he was riding in the cab of the engine drawing the train with the consent of defendant; that it was the duty of defendant to use reasonable care to keep its roadbed in reasonably safe condition; that it failed in that duty; that the roadbed was not reasonably safe, specifying the defects; that defendant knew it or ought to have known it by the exercise of reasonable care; that plaintiff did not know it; that plaintiff was in the exercise of reasonable care for his own safety and that because of the negligence of defendant in failing to keep its roadbed in reasonably safe condition the engine left the track and turned over, injuring plaintiff. The fourth, fifth and sixth counts were substantially the same as the first three, except that it was therein charged that the coach provided for the workmen to ride in was insufficient in size to contain all the laborers being conveyed; that the train was being propelled at a high and dangerous rate of speed under the circumstances, and the condition of the track; and that the person in charge of the engine was not an engineer and did not have sufficient skill to run the engine properly.
    George B. Gillespie, for appellant; Gillespie & Fitzgerald, Shepherd, Trogdon & Dole and F. L. Littleton, of counsel.
    Dyas & Dyas and O’Hair & Rhoads, for appellee.
    Abstract of the Decision.
    1. Master and servant, § 550

      —when declaration is sufficient in action for injuries to employee. In an action under the Federal Employers’ Liability Act for personal injuries sustained by a laborer employed by the railroad company while riding tó his work on one of defendant’s locomotives, the declaration held sufficient, especially after verdict, in the absence of anything from which it could be inferred that there was any rule or order prohibiting such laborers as the plaintiff from riding on the defendant’s locomotive.
    2. Master and servant, § 420*—when laborer riding on locomotive is not a trespasser. A railroad laborer riding to and from his work in the cab of his employer’s locomotive cannot be considered a trespasser unless doing so was prohibited by some rule, order or law.

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

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

   Mr. Justice Graves

delivered the opinion of the court.

3. Master and servant, § 575 —when burden- of proving rules is on master. In an action under the Federal Employers’ Liability Act for injuries sustained by a railroad laborer while riding to his work in the cab of the defendant’s locomotive, held that if there was any rule or order of the company prohibiting the plaintiff from riding there it was for the defendant to show it.

4. Master and servant, § 430*-—what is effect of contributory negligence in action under Federal Employers’ Liability Act. Contributory negligence is no bar to an action for personal injuries brought under the Federal Employers’ Liability Act though the amount of damages to be recovered may be lessened thereby.

5. ' Master and servant, § 302*—how assumption of risk determined. In actions under the Federal Employers’ Liability Act, the question whether there was an assumption of risk on the part of the plaintiff is to be determined in accordance with the decisions of the Federal courts and not in accordance with those of the State courts.

6. Master and servant, § 337*—what risks not assumed by servant. Under the decisions of the Federal courts, an employee does not assume risks that are not necessarily, ordinarily or naturally incident to the occupation in which he is engaged until he becomes aware of the neglect or defect out of which the danger arises and the risk involved, unless both defect and risk are so obvious that an ordinarily prudent person would have observed and appreciated them.

7. Master and servant, § 284*—when railroad laborer and locomotive engineer are not fellow-servants. In an action under the Federal Employers’ Liability Act for injuries sustained by a railroad laborer while riding to his work in the cab of defendant’s locomotive at the invitation of the engineer in charge of the engine, held that the fellow-servant doctrine was not a defense under the facts alleged in the declaration.

8. Master and servant, § 689*—when evidence sustains verdict for injury to railroad laborer due to defective roadbed. In an action under the Federal Employers’ Liability Act for injuries sustained by a railroad laborer, alleged to have been due to a defective roadbed, while riding to his work in the cab of defendant’s locomotive at the invitation of the engineer, in which the defenses were that the plaintiff was a trespasser, was guilty of contributory negligence and had assumed the risk, evidence held to justify a verdict for the plaintiff.


source: Caselaw Access Project

author: Mr. Justice. Graves

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Earl Hardy, Plaintiff in Error.
    (Not to he reported in full.)
    Error to the County Court of Morgan county; the Hon. William E. Thomson, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.
    Statement of the Case.
    Prosecution by information by the People of the State of Illinois, plaintiff, against Earl Hardy, defendant, for selling liquor in anti-saloon territory. To review a judgment against him, defendant prosecutes a writ of error.
    The jury returned as their verdict a paper in the following language:
    “The Court instructs the Jury, if you find the defendant guilty the form of yóur verdict may be: ‘We, the Jury, find the defendant, Guilty Earl Hardy, guilty of selling intoxicating liquor in manner and form as charged in the First Count of the information,’ the Jury to fill the blank with the number of the Count or Counts you find the defendant guilty of.”
    William N. Hairgrove, for plaintiff in error.
    Egbert Tilton, for defendant in error.
    Abstract of the Decision.
    1. Appeal and ebbob, § 1522

      —when informality should not vitiate verdict. When a verdict does substantial justice, informality should not vitiate it.
    2. Intoxicating liquobs, § 160*—when informal verdict sufficient

      in criminal prosecution for selling liquor. A verdict in a criminal prosecution for illegally selling intoxicating liquor in anti-saloon territory, although defective in form, helct sufficient to sustain a judgment against the defendant.

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

   Mr. Justice. Graves

delivered the opinion of the court.


author: Mr. Justice Craves

text:
    John S. Carper, Appellant, v. A. M. Myers et al., Appellees.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Clark county; the Hon. Walter Brewer, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.
    Rehearing denied December 2, 1916.
    Statement of the Case.
    Action by John S. Carper, plaintiff, against A. M. Myers and others, defendants, to recover penalties for failure to drill oil wells in accordance with the terms of a lease, and for timber furnished by the plaintiff to the defendants. -From a judgment for plaintiff for $12.50, he appeals.
    Everett Connelly, for appellant.
    Arthur Poorman and Scholfield & Scholfield, for appellees.
    Abstract of the Decision.
    1. Appeal and error, § 1213

      —what errors successful party cannot complain of. A party in whose favor a judgment is rendered cannot be heard to complain of errors in the court that do not' relate to or tend in any way to affect the amount of the'verdict, but which relate solely to the right to recover.

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

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

   Mr. Justice Craves

delivered the opinion of the court.

2. Appeal and ebbor, § 365 —when judgment will not he reversed. A judgment will not be reversed on appeal for reasons Which the trial court had no opportunity to consider.

3. Appeal and ebbor, § 1035*—when rulings of trial court not considered. Rulings of the trial court not assigned as errors on the record on appeal will not be considered by the Appellate Court.


author: Mr. Justice Graves

text:
    The People of the State of Illinois, Defendant in Error, v. Owen L. Seed, Plaintiff in Error.
    (Not to be reported in full.)
    Error to the County Court of McLean county; the Hon. James C. Riley, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed.
    Opinion filed October 13, 1916.
    Statement of the Case. ,
    Prosecution by the People of the State of Illinois, plaintiff, against Owen L. Seed, defendant, for wife abandonment. To review a judgment against him., the defendant prosecutes a writ of error.
    Walker B. Flint and Sterling & Whitmore, for plaintiff in error.
    Miles K. Young and W. B. Leach, for defendant in error.
    Abstract of the Decision.
    1. Husband and wife, § 274

      —what proof necessary to warrant conviction of wife abandonment. In order to warrant a conviction for wife abandonment, the proof must show such a state of facts as would, if they continued for the period of two years, warrant the granting of a divorce to the wife on the ground of desertion.

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

   Mr. Justice Graves

delivered the opinion of the court.

2. Husband and wife, § 273 —what is a defense to prosecution for wife abandonment. If the separation of husband and wife is due to the desertion of the husband by the wife, or if it is by mutual agreement of the parties, the husband cannot be held amenable to the criminal law or be held guilty of desertion.

3. Husband and wife, § 274*—when evidence insufficient to justify conviction for wife abandonment. On a prosecution for wife abandonment, evidence showing, among other things, that the defendant, a traveling insurance solicitor, leased and maintained a house after his wife had gone to visit her relatives, and told her that when she was ready to come home he would come after her, that after several months, on the wife’s not returning, he surrendered the lease and the wife stated on the witness stand that if the defendant had done what was right she would have been willing to live with him, held not to justify a conviction.


text:
    E. E. Routson et al., Appellants, v. George E. Slater et al., Appellees.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Fulton county; the Hon. Habry M. Waggoner, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded with directions.
    Opinion filed October 13, 1916.
    Rehearing denied December 2, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Bill for an injunction filed by E. E. Routson and others, complainants, against George E. Slater and others, defendants, to restrain the construction of a schoolhouse. From a decree dismissing the bill, complainants appeal.
    Complainants as taxpayers in school district No. 158, in Township 4 North, Range 3 East of the Fourth Principal Meridian in Fulton county, filed their hill in chancery in the circuit clerk’s office of said county praying for an injunction restraining defendants, as the board of directors- of said school district, “from moving said schoolhouse site in said district from its present location and from building a new schoolhouse on said pretended new schoolhouse site, and from issuing bonds or levying a tax upon the property of said school district for the purpose of building such new schoolhouse.” Later, by proper amendment to the bill, one Henry Hughes was m-ade a defendant as a contractor interested in the construction of the proposed new schoolhouse. Defendants appeared and answered the bill. The important part of the answer was that a special election was legally called on July 23, 1914, and was legally held in said school district on August 6,1914, in which election about one-third of the legal voters of that district participated, and that a large majority of those who voted at that election cast their ballots for a new schoolhouse site, for building a new schoolhouse and for issuing bonds to raise money with which to build the same.
    Complainants, while admitting that a pretended election was held in said district on August 6, 1914, and that the result of the same was as stated by defendants, denied that such election was properly called or held, or that the result of it authorized or justified defendants in the doing of the things contemplated.
    A typewritten, purported record of a meeting of the directors supposed to have been held on July 23, 1914, which had been dictated by an attorney and by him pasted into the record book some three months after this suit was brought, was introduced in evidence to prove the calling of the special election in question. That writing was as follows:

      “State of Illinois, “County of Fulton, ‘1 Town of Isabel.
    “July 23, 1914, a special meeting of the school Directors of School District 158, Fulton County, State of Illinois, was held at the Penny Grocery Store in said district, said meeting called by the president, due notice having been given to all of the directors.
    “The directors present were Geo. Slater, Clyde Guiher and M. O’Malley. The object of said meeting was for acting upon the questions, of calling a special election to vote upon the questions of a new schoolhouse. After considerable discussion among the directors it was ordered by the directors all members voting ‘Aye’ that a special election be called for the said following purposes.
    “1. Voting for or against the proposition to change the site of the Schoolhouse in Dist. No. 158 from its present location to S. E. Comer of the George Dilworth farm.
    “2. Voting for or against the proposition to build a new schoolhouse in Dist. 158, the same to cost not to exceed $2,000.
    “3. Voting for or against the proposition to bond Dist. No. 158 in a sum not to exceed $2,250 to pay for new building and new site.
    Geo. C. Slater, President.
    M. O’Malley, Clerk.”
    Harvey H. Atherton, for appellants.
    M. P. Bice, for appellees.
    Abstract of the Decision.
    1. Schools and school distbicts, §" 65

      —what essential to validity of election to build schoolhouse. An election held for the purpose of choosing or changing a schoolhouse site, building a new schoolhouse or issuing bonds is a special election and must be called by the directors of the school district in which the election is to be held.

      See Illinois Notes Digest, Yds. 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 Graves

delivered the opinion of the court.

2. Schools and school districts, § 56 —when directors cannot act as a board. School directors cannot act as a board except at a general or special meeting.

3. Schools and school districts, § 56*—how proceedings at directors’ meetings must be established. The only way the facts can be established that a regular or special meeting of a board of school directors was held or what, if any, business was transacted at such meeting is by the record which the law requires shall be kept in such matters.

4. Schools and school districts, § 56*—when purported record of directors’ meeting insufficient to show election was duly called. On a bill for an injunction to restrain the building of a schoolhouse, on the ground that no election on the proposition had been properly called and held, a writing purporting to be a record of a meeting held by the school directors, drawn up by an attorney and pasted into the record book of the directors three months after the suit had been brought, reciting that a meeting of the directors had been held after due notice given them at a certain place and time, naming the directors who were present; that the object of the meeting was to act upon the question of calling a special election to vote upon the question whether a new schoolhouse should be built, etc.; that it was ordered that a special election be called for the purpose of voting upon the question whether a new schoolhouse should be built, etc., but not stating that an election wg,s called nor when or where it was intended that such election should be held, when it should be called, was not proper proof that such election had been properly called.

5. Schools and school districts, § 56*—when recitals in posted notices of election, insufficient to show that directors had called election. Recitals in posted notices of an election to be held on the question whether a new schoolhouse should he built, a site purchased and bonds issued in payment therefor, reading “by order of the board of directors of the said district, dated this 27th day of July, 1914,” held not- acceptable as proof that an election had been properly ordered by the board.

6. Schools and school districts, § 65*—when building of new schoolhouse should be enjoined. On a bill for an injunction to restrain a board of school directors and a building contractor from changing a school site, building a new schoolhouse, and issuing bonds in payment therefor, held 'that there being no proper proof that any special election was called submitting the proposition to the voters, the injunction should have been granted.

7. Schools and school districts, § 86 —when evidence insufficient to show holding of valid election to build schoolhouse. On a bill to enjoin school directors and a contractor from proceeding with the erection of a schoolhouse, on the ground that no election had been properly called for a vote on the question whether the schoolhouse should be built, a writing, dictated by an attorney after the suit had been commenced, purporting to be a record of the holding of an election on the proposition and posting of notices and the result of such election, which writing was pasted in the directors’ record book, labeled “Amended Records,” held not to constitute proper proof of the holding and result of a legal election, especially when the election was void for want of proper preliminary steps, there being no proper proof of authority in the attorney to amend the record or of what record the writing was supposed to be an amendment


text:
    Riley Reams, Appellee, v. Cora A. Reams, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Vermilion county; the Hon. Alt. gustos A. Partlow, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.
    Statement of the Case.
    Bill for divorce, charging desertion, filed by Biley Beams, complainant, against Cora A. Beams, defendant, to which the defendant filed a cross-bill for separate maintenance, charging cruelty on the part of the husband and a refusal by him to maintain a residence separate and apart from the house of his mother. From a decree for defendant on the cross-bill, complainant in that bill appeals.
    B. B. Holmes, for appellant.

      Tilton & Taylor, for appellee.
    Abstract of the Decision.
    1. Divorce, § 11

      —when desertion is a valid ground. Desertion, in order to be a valid ground for divorce, must not only be wilful and without reasonable cause in the beginning but must continue so for the period of at least two years.
    2. Divorce, § 9*—what does not constitute desertion. Living separate and apart by consent or by agreement will not constitute wilful desertion or entitle either party to a divorce on that ground.
    3. Divorce, § 48*—when evidence shows that desertion was not wilful. On a bill for divorce filed by a husband, based on desertion of the wife, the latter having filed a cross-bill for separate maintenance, where it appeared that five days after the wife left the husband, the parties entered into a contract in writing whereby the wife was to receive in lieu of all dower, homestead and other rights, arising from a marriage relation, all the household goods belonging to the parties and $3,000, held that the making of the contract, so soon after the separation, and in view of a recital therein that it was made because of such' separation and in contemplation of its continuance, amounted to such a consent to and an agreement for a separation as to deprive the living apart of the element of wilful desertion on the part of either of the parties.
    ' 4. Husband and wife, § 267*—when instructed verdict for defendant in cross-hill for separate maintenance is proper. On a bill for divorce filed by a husband against his wife, where the latter filed a cross-bill for separate maintenance, averring that a contract of settlement entered into by the parties, whereby the wife received certain property in lieu of homestead rights, etc., was procured by force, duress and fraud, without averring any facts from which such force, duress or fraud could be inferred, and no proof having been offered to substantiate such averment, held that the jury were properly instructed to return a verdict for the defendant on the cross-bill.
    5. Husband and we™, § 219*—what is not justification for wife in leaving husband in action for separate maintenance. On a cross-bill for separate maintenance, held that the cross complainant’s contention that she was justified in leaving her husband because he furnished her no home except with his parents was untenable where it was shown that she lived with her husband’s parents only.during the first year of her marriage, and thereafter and at the time of the separation she and her husband lived separately from the latter’s parents although on the same farm.

      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 Graves

delivered the opinion of the ' court.

6. Husband and wife, § 264 —when evidence does not show cruelty and misconduct of husband in action for separate maintenance. In a suit for a divorce by a husband, where the wife filed a cross-bill for separate maintenance, alleging cruelty and misconduct on the part of the husband, evidente held to justify a finding for the defendant on the cross-bill.


author: Mr. Justice G-ravbs

text:
    Alice V. Norton, Plaintiff in Error, v. United Commercial Travelers of America, Incorporated, Defendant in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of McLean county; the Hon. Thomas M. Habéis, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and judgment here.
    Opinion filed October 13, 1916.
    Statement of the Case.
    Action by Alice V. Norton, plaintiff, against United Commercial Travelers of America, incorporated, defendant, on a certificate of life insurance. To review a judgment for defendant, plaintiff prosecutes a writ of error.
    The plaintiff was the wife of the deceased insured, Samuel Lee Norton, and was named as-beneficiary in the certificate. Samuel Lee Norton, on the date of the issuance of the certificate, October 21,1910, was a commercial traveler. He was in the employ of the Cement, Tile & Machinery Company of Waterloo, Iowa, on a salary. After August, 1912, he continued in the employ of the same company but received his compensation by way of commissions instead of a salary. In the fall of 1912, he with others entered into a copartnership known as the Havana Concrete, Tile & Product Company of Havana,' Illinois. He was employed as manager of that company. .He still continued to be in the employ of the Cement, Tile & Machinery Company. While he was on a collecting trip as manager of the Havana Concrete, Tile & Product Company on June 27,1913, he was accidentally drowned. He was in good standing in the United Commercial Travelers of America at the time of his death. Proof of death was made in due time. Defendant admitted liability to the extent of $3,150, which it paid. Plaintiff contends that she should have received $5,000 within ninety days after the receipt of satisfactory proof of the accidental death of the insured, and $1,300 in weekly instalments of $25, amounting in all to $6,300. The contention of defendant was that the deceased changed his occupation and thereby it became liable to only one-half of the amount named in the certificate; that there had been an accord and satisfaction and that the suit was barred by the limitation stipulated in the contract.
    Sterling & Whitmore, for plaintiff in error.
    Barry & Morrissey, for defendant in error.
    Abstract of the Decision.
    1. Insurance, § 789

      —when occupation does not cause partial forfeiture. In an action on a certificate of insurance issued toy a fraternal insurance association, held that the insured did not come within a provision of the constitution of the association providing that, “should any member engage, temporarily or otherwise, in any other occupation than that of * * * traveling agent, * * * commercial traveler, * * * proprietor of a manufactory, performing office duties only, * * * his beneficiary should be entitled to but one-half the sum to which such beneficiary would have been entitled to had he been engaged as a commercial traveler at the time the injury was received on which the claim of payment is based," where at the time of the member’s death he was employed as a commercial traveler for a company and was also a partner in a firm and acting as manager thereof on a salary, and engaged at 'the time of his death on a collecting trip for the latter concern, it being stipulated that the duties of such manager were “office work in the ways of bookkeeping, employing help to run the factory, purchasing materials used in manufacturing the output, and making trips to various points in Illinois in the interest of the firm, selling its output and collecting its accounts, and generally superintending its business affairs and had no duties in the factory.”

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

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

   Mr. Justice G-ravbs

delivered the opinion of the court.

2. Insurance, § 862 —when settlement does not amount to accord and satisfaction. Where a beneficiary in a certificate of benefit insurance received from the insurer an amount which it admitted was due, and the receipt of which it claimed constituted an accord and satisfaction of the entire amount claimed by the beneficiary, held in an action by the latter on the certificate that even if such sum was paid and accepted in full of all liability upon the certificate sued on, the agreement that it should be in full, not having any consideration to support it, would be a mere nudum pactum and not constitute an accord and satisfaction.

3. Insurance, § 859*—when action on certificate is brought within prescribed time. In an action against a benefit insurance association on a certificate of insurance, a stipulated fact that the defendant, within six months before the bringing of the action, wrote to the plaintiff to the effect that it finally rejected the plaintiff’s claim and refused to allow her any amount further than that paid, held to show that the action had been brought within six months after the disallowance of a claim as required by the defendant’s constitution.


author: Hr. Justice Graves

text:
    Will H. Latta, Appellant, v. Granite Live Stock Insurance Company and Lillian Levy, Appellees.
    (Not to be reported in full.)
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers and Hon. Sain Welty, Judges, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Bill in chancery by Will H. Latta, complainant, against the Granite Live Stock Insurance Company and Lillian Levy, defendants, to require the defendant corporation to pay a note given by the complainant to the individual defendant. Both defendants answered the bill and the individual defendant filed a cross-bill praying that the complainant be required to pay the note. From a decree dismissing the bill and granting the relief prayed in the cross-bill, complainant appeals.
    Bays urn & Buck, for appellant.
    DeHange, Gillespie & DeMange and Fiper & Bohrer, for appellees.
    Abstract of the Decision.
    Bills and notes, § 50

      —when note is based upon sufficient consid-. eration. On a bill to compel a corporation to pay a note given by complainant, a stockholder of defendant corporation, to an individual defendant, the wife of an officer of the corporation, in alleged consideration that he resign and of settlement of a claim of the husband against the corporation, evidence held sufficient to sustain findings that the note was complainant’s own obligation and that it was based upon sufficient consideration.

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

   Hr. Justice Graves

delivered the opinion of the court.


text:
    Walter Hackl, Appellee, v. Tower Hill Coal Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Shelby county; the Hon. William B. Weight, Judge, presiding. Heard in this court at’the April term, 1916.
    Reversed and remanded.
    Opinion filed October 13, 1916.
    Rehearing denied December 2, 1916.
    Statement of. the Case.
    Action by Walter Hackl, plaintiff, against the Tower Hill Coal Company, defendant, for personal injuries sustained as a coal miner resulting from a mine blast. From a judgment for plaintiff for $1,500, defendant appeals.
    In part of the counts of the declaration, on which the case was tried, defendant was charged with a wilful violation of the “Shot Hirers’ Act,” and in others that it was the duty of the defendant to use reasonable care to furnish the plaintiff with a reasonably safe place to work and to warn him of the presence of latent dangers, and with a failure to perform that duty.
    William E. Wheeler, for appellant; A. L. Yartis, of counsel.
    Greer & Palmer, Arthur Fitzpatrick and Oris Barth, for appellee.
    Abstract of the Becision.
    1. Mines and minerals, § 102a

      —when failure of operator to era-ploy experienced shot firers is not a violation of Shot Mrers* Act. The use of more than two pounds of powder in any one blast by a miner in a coal mine without the knowledge "or consent of the operator of the mine, or in violation of express rules or orders of such operator, does not make the failure of the operator to employ experienced shot firers to fire such shot a violation of section 2 of the Shot Hirers’ Act (J. & A. H 7513).

      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 Graves

delivered the opinion of the court.

2. Mines and minerals, § 148 —when question as to amount of powder used and authority of employee to use is material. In an action under the Shot Hirers’ Act (J. & A. If 7512 et seq.), by a coal miner for injuries resulting from a blast, held that the facts being controverted it was a material question whether over two pounds of powder was used in the mine in any one blast and, if so, whether it was so used with the consent of the operator or against his rules and orders.

3. Mines and minerals, § 148*—when question Whether blasting without undermining coal was permissible is material. In an action for personal injuries sustained by a coal miner resulting from a blast, held that under the pleading it was a material question whether the blasting without undermining coal was permitted or prohibited by the rules or orders of the operator of the mine.

4. Mines and minerals, § 190*—when instruction on proof of mere negligence as warranting recovery under counts of declaration is erroneous. In an action for personal injuries sustained by a coal miner from a blast in which two of the counts of the declaration were based on a wilful neglect to comply with section 2 of the Shot Hirers’ Act (J. & A. If 7513), requiring blasts in which over two pounds of powder are used to be fired by experienced shot firers, an instruction that proof of mere negligence would be sufficient for a recovery under any of the counts of the declaration, some of which-alleged mere negligence at common law, held erroneous.

5. Neglioenoe, § 214*—when instruction directing a verdict is erroneous. An instruction directing a verdict for the plaintiff in an action for negligence must limit his right to recovery to acts of negligence declared on in the declaration.

6. Workmen’s Compensation Act, § 12*—when instruction directing verdict and not referring to fact that employer had rejected provisions of is erroneous. In an action for personal injuries by an employee against his employer, held that an instruction, peremptory in form, stating alleged acts of negligence and directing a verdict for the plaintiff, should' have called attention to the claimed fact that the employer had rejected the provisions of the Workmen’s Compensation Act.

7. Damages, § 186*—when evidence as to possible injury to eye by sympathetic affection is inadmissible. Hailure to exclude testimony of a doctor as to what might possibly happen to an uninjured eye by way of sympathetic affection from an injured eye, held error.


text:
    Frank L. Newman, Appellee, v. W. L. Ross, Receiver of Toledo, St. Louis & Western Railroad Company, Appellant.
    Payment, § 47

      —when carrier is not liable to shipper of refected quarantined live stock for freight paid thereon. Where hogs were shipped from quarantine without an Assistant State Veterinarian’s permit therefor, and permission to unload them at their destination was refused because of the lack of such permit, and they were ordered by the shipper to be shipped back to their place of origin, he was compelled to pay the freight charges both ways in order to get possession of them, held that he could not recover such payment from the carrier, since the shipping of the hogs from the quarantine territory was illegal and both parties were in pari delicto, and- the payment of the money was part of the illegal transaction.
    Appeal from the Circuit Court of Coles county; the Hon. Walteb Bbeweb, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed with finding of facts.
    Opinion filed October 13, 1916.
    Rehearing denied December 2, 1916.
    O. E. Pope, for appellant; Charles A. Schmiettau, of counsel.
    Thomas L. Marshall, for appellee.

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

   Mr. Justice Graves

delivered the opinion of the court.

The facts in this case are not controverted. Appellee on February 9, 1915, shipped over the Toledo, St. Louis & Western Railroad at Charleston, Illinois, two carloads of hogs to be transported to the City of Chicago. At that time the County of Coles was under quarantine regulations which prohibited the removal of hogs from that county except upon official permit issued by an Assistant State Veterinarian. No such official permit was issued for the shipment of these hogs at that time. When the hogs arrived at their desfiliation, the Chief of the Bureau of Animal Industry refused to permit them to be unloaded because no official permit for their shipment had been obtained. Thereupon appellee ordered them returned to Charleston, which was. done. At that point appellant demanded and received $115 from appellee for freight charges for the round trip before it would deliver the hogs to appellee. Whether appellee could have been compelled to pay the $115 or whether he could have obtained his hogs without paying the same is not now before us for determination. The fact remains he chose to pay it. This suit was commenced to recover back the $115 freight paid by appellee. He obtained judgment in the Circuit Court for the full amount.

It is not denied by either of the parties to this suit that it was unlawful for appellee to ship and for appellant to receive and transport the hogs from Charleston to Chicago without an inspection and certificate or permit from an authorized officer. It is not denied that both appellant and appellee knew of the fact that such shipment was prohibited by quarantine regulations. They were therefore in pari delicto

Where parties engage in an unlawful "undertaking, the law will not assist either, but will leave them in the situation in which they have placed themselves. Shaffner v. Pinchback, 133 Ill. 410.

In Holt v. Green, 73 Pa. St. 198, the court said: “If a plaintiff cannot open his case without showing that he has broken the law, a court will not assist him. It has been well said that the objection may often sound very ill in the mouth of a defendant, but it is not for his sake that the objection is allowed; it is founded on general principles of policy, which he shall have the advantage of, contrary to the real justice between the parties. The principle of public policy is that no court will lend its aid to a party who grounds his action upon an immoral or upon an illegal act. The principle to be extracted from all these cases is that the law will not lend its support to a claim founded on its own violation. ’ ’ '

In Coppell v. Hall, 7 Wall. (U. S.) 558, the court uses this language referring to this class of defenses: “The defense is allowed, not for the sake of the defendant, but of the law itself. * * * The maxim, ex dolo malo non oritur actio, is limited by no such qualification. * * * Whenever the illegality appears, whether the evidence comes from one side or the other, the disclosure is fatal to the case.”

The cases above quoted from were cited with approval and followed in the case of Devor v. Knauer, 84 Ill. App. 184.

The facts in this case clearly bring it within the rule above announced.

The judgment of the Circuit Court is reversed with a finding of facts to be incorporated in the record of this court that the transaction out of which the claimed right of action arose was illegal, and was known to be so by both parties at the time the hogs were shipped and when the money sued for was paid, and the money sued for was paid as a part of such illegal transaction.

Reversed with finding of facts.


text:
    A. E. Kuolt, Commissioner of Banking of the State of Wisconsin, etc., Appellee, v. C. E. Canright et al., Appellants.
    1. Pbocess, § 26

      —when issuance and service of are waived. A party who enters his general appearance in a case and makes a defense on the merits thereby waives the issuance and service of process and is in court for all purposes.
    2. Judgment, § 196*—when judgment against person not served with process is valid. A judgment awarded against the general property of all defendants and against the “separate property of the defendants served in this case, to wit * * *” naming them, held valid as against one of the main defendants, although the record showed that while he had' entered his appearance in the action he was never served with 'process, since the words “served in this case,” being wholly unnecessary to the validity of the judgment, could be treated as surplusage.
    3. Bills and notes, § 377*—when holder of negotiable instrument presumed to be holder in due course. Every holder of a negotiable instrument is presumed to be a holder in due course in" the absence of evidence to the contrary.
    4. Bills and notes, § 241*—when purchaser of negotiable instrument is deemed not to be holder in due course. In order that a purchaser of a negotiable instrument shall be deemed not to hold it “in due course,” it must appear that he had actual knowledge of the infirmity or defect complained of, or knowledge of such facts that his action in taking the instrument amounts to bad faith.
    5. Bills and notes, § 243*—when title of assignee is not affected by knowledge of suspicious circumstances or gross negligence. Neither knowledge of suspicious circumstances nor even gross negligence will affect the title of an assignee1 of a negotiable instrument, in the absence of bad faith.
    6. Bills and notes, § 247*—when bank is a bona fide holder in due course. Where it was agreed by signers of a promissory note that, on its being signed by seventeen persons altogether, each of whom should be financially responsible for at least $500, it should be delivered to the payee named therein, and, after it was signed by ten persons so responsible, the treasurer and manager of the payee procured the signatures of seven other persons not so responsible and it was accepted by a bank which credited the payee with its fpll face value, held under the evidence that the bank was a bona fide holder of the note in due course.

      Appeal from the Circuit Court of Sangamon county; the Hon. James A. Cbeightoit, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.
    Rehearing denied December 2, 1916.
    Alonzo Hoff, for appellants.
    H. L. Child and Simmons & Walker, for appellee; Wilson, Warren & Child, of counsel.

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

   Mr. Justice Craves

delivered the opinion of the court.

On April 3, 1914, a corporation known as the State Sales Corporation of Springfield, Illinois, was indebted to another corporation known as the Commercial National Advertising Agency of Chicago, in the sum of about $1,600 for advertising for sale, stock in the United Owners Funding Company. On that date, for the purpose of securing the payment of this obligation as well as to secure the advertising agency for future obligations that should accrue for a continuation of like advertising, a meeting was held at the office of the State Sales Corporation in Springfield, which meeting was attended by one Loomis, an employee of the advertising agency, and several persons interested in the sale of the stock of the United Owners Funding Company, at which meeting it was agreed between those present that a note for $8,500 due in six months, drawing seven per cent, interest per annum from date and payable to the Commercial National Advertising Agency, should be procured, signed by seventeen persons who should each be financially responsible for at least $500, and that such note when so signed should be delivered to the payee named therein. The note was thereupon made and the signature of ten persons representing a large amount of wealth was obtained by the morning of the next day and- was then taken by Clark H. Loomis, one of the signers of it, and at the time the treasurer and general manager of the payee therein named, to Chicago, with the understanding that it should not be used as a note until seven additional signatures of persons who were each financially responsible for the sum of $500 were obtained to it. The testimony of C. E. Canright, one of the signers of the note and at the time the president of the State Sales Corporation, tends to show that when the note was signed by all of the first ten signers, except Anderson, it was the understanding that, if the advertising did not produce the money to pay the note, those signers who were present at the Springfield meeting “would have to pay it.” The advertising agency did its banking with the Commercial and Savings Bank of Racine, Wisconsin. On April 24, 1914, Loomis wrote to C. R. Carpenter, cashier of that bank, telling him of this note and that it then had but ten signatures; that it must have seventeen before it could be negotiated; that those who had signed it were amply good for many times the amount of the note and that, for that reason, the seven remaining signers need not have any actual financial responsibility, but that he could not bank the note until the other seven signatures were obtained. Carpenter replied suggesting prompt action in getting the additional seven signatures in" order to hold those who had. signed, and to prevent any claim that the note was illegal, and requesting that the note, when completely signed, be sent to his bank as collateral security for a then existing overdraft. It seems evident, from the proof in this record, that Loomis hired seven men with no financial responsibility to sign the note-in question and that he then, on May 4, 1914, sent the same to Carpenter with the direction to use his own judgment about holding it as collateral or crediting the same to the account of the advertising agency. On May 5,1914, Carpenter returned the note for indorsement. On May 6th, Loomis returned it to Carpenter properly indorsed., On May 5, 1914, Carpenter wrote to the Illinois National Bank at Springfield, asking if a note signed by Harmon, Anderson, Booth, Bunn, Willett, Telfer and Baugher, among others, would be good, and on May 8, 1914, he wrote to the Williamsville Bank asking for the financial standing of Telfer. The answers to these letters disclosed’ no valuable information as to part of the persons named, but gave such rating as to part of them as to show the note to be amply good. Thereupon on May 20, 1914, the note was accepted Ny Carpenter and the ..account of the advertising agency was credited with its face value. On September 17, 1914, the Racine Bank, of which Carpenter was cashier, being in difficulty, appellee, as Commissioner of Banking of the State of Wisconsin, took charge of it, and finding the note in question among its assets later brought this suit and obtained the judgment appealed from.

The first error argued is as to the form of the judgment, because execution is therein awarded against the joint property of all the defendants and against the “separate property of the defendants served in this case, towit.: C. E. Canright,” et al., when the record shows that Canright entered his appearance and was never served with process.

A party who enters his general appearance in a case and makes a defense on the merits thereby waives the issuance and service of process and is in court for all purposes. He cannot thereafter complain of the exercise by the court of jurisdiction over his person. The judgment would have been a proper one in that respect, if execution had been awarded against the joint property of all the defendants and against the separate property of those defendants by name of whom the court had acquired jurisdiction by the services of process or the entry of appearance. The words “served in this case,” used in the record of this judgment, being wholly unnecessary to the validity of this judgment, may be treated as surplusage.

It is next urged that the Racine Bank was not the bona fide holder of the note in due course; that the letters that passed between Loomis and Carpenter are sufficient to charge the bank with knowledge of the infirmity in the note, and that the bank acted in bad faith in accepting the assignment of it.

Every holder of a negotiable instrument is presumed to be a holder in due course in the absence of evidence to the contrary. Section 59, art. IV, chap. 98, Rev. St. (J. & A. ¶ 7698); Clarke v. Newton, 235 Ill. 530.

In order that á purchaser of a negotiable instruments shall be deemed not to hold it in ‘ due course, ’ ’ it must appear that he had actual knowledge of .the infirmity or defect complained of, or knowledge of such fact that his action in taking the instrument amounts to bad faith. Section 56, chap. 98, div. IV (J. & A. ¶ 7695).

The defect in this note that it is claimed the Racine Bank had knowledge of was that the last seven persons who signed it were not such persons as it was understood by the first ten signers should sign it; that their signatures were purchased and that they were without financial responsibility. The only evidence which appellant claims shows that the bank had knowledge or notice of these defects is found in the correspondence between Loomis and Carpenter. We have carefully examined these letters and find nothing in them to show that Carpenter either knew of these supposed defects or knew of any facts that caused his action in taking the note to amount to bad faith. The curiosity of an inquisitive person might have been aroused by these letters, but it is certain that neither actual knowledge of the defect nor knowledge of such facts as to make the discounting of the note bad faith are shown, Neither knowledge of suspicious circumstances nor even gross negligence will affect the title of an assignee in the absence of bad faith. Kavanagh v. Bank of America, 239 Ill. 404; Bradwell v. Pryor, 221 Ill. 606.

Appellants have argued several claimed errors in the admission and exclusion of evidence and in giving and refusing of instructions, but they are without merit. A discussion of them all would unduly extend opinion and would serve no useful purpose. The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Isaac W. Nutt, Appellee, v. F. P. Vennum, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Ford county; the Hon. Thomas M. Habéis, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.
    Statement of the Case.
    Action for damages by Isaac W. Nutt, plaintiff, against F. P. Yennum, defendant. From a judgment for eight hundred dollars for plaintiff, defendant appeals.
    The plaintiff had for two years occupied the defendant’s premises as a tenant, and at the expiration of that time had been evicted therefrom in an action of forcible entry and detainer, his goods being placed in the highway by the evicting officer. He then brought this action against his former landlord for damages, including claims for work performed, materials furnished, cash advanced, grain taken, board of men and for breach of a verbal contract.
    A notice of set-off specified claims for failure of the plaintiff to deliver rent corn under the terms of the written lease; damages for allowing- cockleburs, this-ties and other weeds -to go to seed, and for failure to cut the same as provided by the lease; for failure to haul out the manure and failure to deliver up the premises at the termination of- the lease.
    M. L. McQuiston and Cloud & Thompson, for appellant.
    Schneider & Schneider, for appellee.
    Abstract of the Decision.
    1. Landlordi and tenant, § 530

      —when exclusion of record in forcible entry action not improper in action for breach of contract. Where a tenant claiming to hold under a written lease had been evicted from a farm under an execution in an action of forcible entry and detainer and his goods placed in a highway by the evicting officer, and later he brought an action against his former landlord for breach of a verbal contract for work performed, materials furnished, etc., held that the defendant’s contention in the latter action that the record in the forcible entry and detainer action should have been admitted in evidence for the reason that counsel for the plaintiff had used expressions which disclosed that the tenant had been put off the farm by a constable, was untenable, there being nothing in the expressions challenging the righteousness of the expulsion or to raise that question for the determination of the jury, and further because the court instructed the jury that the defendant had the right to evict the plaintiff and that the officer had the right to place his property in the public road.
    2. Evidence, § 365*—When answer of witness not misleading as assuming ownership of property. In an action by a former tenant of a farm against his former landlord for breach of an oral contract for work performed, materials furnished, etc., including a claim for grain taken, in which the notice of set-off specified claims for failure of tenant to deliver rent corn due according to the terms of the former lease, held that the answer of the tenant’s son who was interrogated as to what became of the grain, that they put the defendant’s corn on one side of a crib and their own on the other side and later hauled it to a certain place and hauled the defendant’s oats to town, was not misleading or prejudicial to the defendant as assuming the ownership of the oats, although both question and answer should have been clothed in different language.

      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 Graves

delivered the opinion of the court.

3. Landlord and tenant, § 530 -r-io7ven instruction in action by tenant for share of crops on liability of landlord to account is not erroneous. In an action by a former tenant of a farm against his former ^landlord for his share of corn alleged to have been left on the farm and appropriated by the landlord, held that an instruction to the effect that if the jury believed that the tenant had fairly divided the corn while he was tenant and turned over to the landlord his just, full and fair proportion thereof, and" that the landlord appropriated the tenant’s share, the landlord should be required to account for such a share in so far as it exceeded the amount of set-off which he established by proof even though the grain was not divided in the manner provided for by the lease, was not objectionable, though the grain was not averaged as provided for in the lease.

4. Set-oee and recoupment, § 43*—when instruction placing burden of proof on plaintiff properly refused. An instruction which placed the burden of disproving a defendant’s set-off on the plaintiff, held properly refused as erroneous.


text:
    Mary F. Parcher, Guardian, Appellee, v. J. E. Reese, Conservator, Appellant.
    1. Insane persons—what is the nature and purpose- of lunacy laws. Lunacy laws are enacted for the benefit of the unfortunate as well as for that of the public, and of necessity operate at the place and in the jurisdiction where the insane person is found, and are in their nature emergency laws, operating, if at all, when the emergency arises and should be construed liberally to the end that their purpose may be effected.
    2. Insane persons—what constitutes nonresidence of. “Non-residence,” as used in section 41 of the lunacy laws of this State (J. & A. If 7325), should be construed^to mean an insane person who is beyond the jurisdiction of the courts of this State and who has been taken before the courts of some other State and adjudged to be insane, and a guardian or conservator of his person and estate has been appointed by such court.

      3. Insane persons—when adjudication of insanity and appointment of conservator 0y foreign court should he recognised. Where an insane person, who was formerly a resident of this State, has been taken before the courts of some other State and adjudged to be insane and a guardian and conservator of his estate has been appointed by such courts, the courts of this State should recognize the acts of such foreign courts as valid, and the guardian or conservator appointed by them as the guardian or conservator of a nonresident lunatic.
    4. Insane persons—when foreign conservator is entitled to charge of estate of former resident of State. Where a conservator had been appointed in this State for an insane person, who, after being an inmate for a number of years in an institution in this State, was, on the advice of the superintendent of the institution and with the consent of the conservator and of the County Court which declared her sane, taken to another State by her sister, a resident of that State, who provided a home for her and who-was appointed by a competent court of that State as guardian of her person and estate after she had been declared of unsound mind, held that a petition filed in the County Court of this State which had jurisdiction of the insane person while she was a resident here by the foreign guardian, praying for an order directing the conservator to turn over to her the estate of her ward, was properly granted.
    Appeal from the Circuit Court of Christian county; the Hon. James C. McBride, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.
    J. H. Fornoff, for appellant.
    Taylor & Taylor, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.

Ella Tunison, now past sixty-two years of age, was on February 21, 1901, adjudged insane in the County Court of Christian county, Illinois, and was then committed to the State hospital for the insane located at Jacksonville, Illinois, and remained an inmate of that institution until June 4, 1907. In November, 1905, appellant was appointed her conservator in Christian county, Illinois. Neither her relatives in Illinois nor appellant, her conservator, ever visited her at Jacksonville, and her conservator has never seen her since she was adjudged insane and committed to the Jacksonville Insane Asylum. Neither the mental nor physical condition of the patient improved while she was in the Jacksonville asylum and in June, 1907, appellee, a sister of the patient, asked that she might be allowed to take her to her home in Missouri and care for her. The superintendent of the asylum advised that she be allowed to go with her sister. Appellant, consented that she should be allowed to do so and the County Court of Christian county also consented. It was the evident intent of all concerned that the arrangement thus consummated should be a permanent one and that from that time forward the home of appellee should be the home of the ward. She has been with her sister, the appellee, in Maryville, Nodaway county, Missouri, from that time to the present. She has a fine home there, is well cared for by her sister and is still insane and incapable of taking care of herself. In January, 1915, in the Probate Court of Nodaway county, Missouri, the ward, Ella Tunison, was adjudged to be of unsound mind and appellee was appointed and qualified as guardian of her person and estate. Thereafter, appellee as such guardian filed her petition in the County Court of. Christian county, Illinois, praying for an order directing appellant to turn over to her the estate of the ward, which consists of something over $9,000 in secured notes and cash. That court granted the prayer of the petition. Appellant appealed to the Circuit Court of Christian county and that court entered the same kind of an order.

It seems manifest that it is not only best for the ward to remain in Maryville, where she now is and where she has been well cared for for eight or nine years by her sister, who seems to be the only relative who shows any interest in her, but that her funds should likewise be placed in the hands of appellee, who knows her needs and can use the same intelligently for her benefit. By that means also there will be saved to the estate the most liberal annual allowance of $100, which appellant has received for loaning about $9,000 and collecting the interest on the loan.

It is not questioned that the guardian of a nonresident insane person appointed in any of the states or territories of the United States or any foreign country may commence and prosecute suits in his own name to recover property in this State under sections 41 and 42 of the Lunacy Act (J. & A. ¶¶ 7325, 7326), but it is insisted that Ella Tunison is not and has not been a nonresident of the State and that therefore the sections referred to confer on appellee no rights as the guardian of a nonresident insane person.

While an insane person is conclusively presumed to be incapable of determining for himself where he will abide or hold his domicile, yet it has been held that if he has a conservator or guardian, his domicile or residence may be changed by the direction or assent of such officer, either expressly or impliedly given. Holyoke v. Haskins, 5 Pick. (Mass.) 20; Anderson v. Anderson’s Estate, 42 Vt. 350; Inhabitants of Pittsfield v. Inhabitants of Detroit, 53 Me. 442; Hill v. Horton, 4 Dem. Surr. (N. Y.) 88; Culver’s Appeal, 48 Conn. 165; In re Jackson, 15 Mich. 417. There are authorities holding a contrary view, but we are satisfied that the weight of authority is in'accord with those cited.

We also feel that no sound reason can be found for holding that persons under disability because of want of mental capacity should be governed by any different rule as to fixing their place of residence than is applied to those under the disability of infancy or coverture. In the instance of both minor children and married women their place of residence is determined by the will of others. Certainly those having charge of insane persons, who are the most helpless of all dependent persons, should be clothed with as much authority over their wards.

While our courts of last resort have not expressly passed on this question, this court in 1903, in the case of Langmuir v. Landes, 113 Ill. App. 134, recognized as valid a change of residence from this State to Canada of a person who had been adjudged insane in this State and had gone to Canada and, after some years, had been adjudged insane there, and also recognized the right of the representatives of the insane person in the foreign country to recover from his conservator in this State the property of the ward in his hands.

The words “resident” and “nonresident” have different meanings according to the subject under consideration. When used with reference to elections or the service of legal process, they are often used as synonymous with £ £ domicile ” or “ citizenship. ’ ’ "When used with reference to nonresident debtors and the right of attachment, they have to do with the abiding place of the person as distinguished from his domicile, home or citizenship, and persons have been held to be nonresidents who abide in one State and retain their domicile, citizenship and voting place in another. Morgan v. Nunes, 54 Miss. 310; Haggart v. Morgan, 5 N. Y. (1 Seld.) 422-427; Chaine v. Wilson, 14 N. Y. Super. Ct. 673-686; Southern R. Co. v. McDonald (Tenn.), 59 S. W. 370. In Carden v. Carden, 107 N. C. 214,12 S. E. 197,198, the “cessation to dwell within a State for an uncertain period without a definite intention as to a time for returning, although a general intention to return may exist” was held to constitute nonresidence.

Lunacy laws are enacted for the benefit of the unfortunate as well as the public. Of necessity they operate at the place and in the jurisdiction where the insane person is found. They are in their nature emergency laws and must operate, if they operate at all, when the emergency arises. Such laws should he construed liberally to the end that their purpose may be effectuated. If courts stick in the bark on technical questions of construction of terms, the lunatic may destroy himself or others or waste or lose his property and the object of the law thereby be frustrated while hairs are split.

“Nonresident” as used in paragraph 41 of the lunacy laws of this State. (J. & A. ¶ 7325) should be construed to mean an insane person who is beyond the jurisdiction of the courts of this State and who has been taken before the courts of such other State and adjudged to be insane, and a guardian or conservator of his person and estate has been appointed by such court. In such cases the courts of this State should recognize the acts of such foreign courts as valid, and the guardian or conservator appointed by them as the guardian or conservator of a nonresident lunatic.

On a state of facts much the same as those in the case at bar, except that the ward was an infant and its removal from the State of Michigan to the Dominion of Canada amounted to criminal abduction, in which the respondent in the habeas corpus proceeding then before the court was at least implicated if not the chief offender, Mr. Justice Cooley, in the case entitled “In the Matter of Jackson,” reported in 15 Mich. 416 (432 to 442), after disposing of other questions in that case, said: “If the child is held in a foreign jurisdiction by one appointed his guardian there, the respondent has legally no such power as is claimed, even though the person having the custody may have been his agent, and, as such, procured the appointment. The agency does not enter into the guardianship. The law there will know nothing of such an agency, and will refuse to recognize it. The custody has ceased to be that of the individual, and has become that of the agent of the law. That law is the foreign law; and we must come directly in conflict with it, if we exercise jurisdiction on the facts here shown. The case, as it would stand in Canada, would be that of a guardian appointed by its courts over a minor within its jurisdiction, coerced indirectly by a foreign court to remove the child abroad, and there deliver it to custodians whose authority would not be recognized in Canada while the present appointment stands. It would be an indirect assumption of jurisdiction by the court in Michigan over the appointment made in Canada, even to the extent of reversing that action. I know of no precedent for such a course, and a due regard to interstate comity should incline us to forbear.

“It is quite probable that the appointment in Canada was made in ignorance of the real facts of the case. I cannot doubt if these were fully presented, the court there would revoke its action, and cause the child to be delivered to the testamentary guardians. In my opinion, that court is the tribunal to appeal to under the facts disclosed by the pleadings.”

It being disclosed by the record in this case that, before this proceeding was begun, appellee was duly appointed guardian in the State of Missouri of Ella Tunison, who had in the same proceeding been adjudged to be insane, that she was a resident of that State at that time, within the meaning of paragraph 41 of our lunacy laws, and that she became such a resident of Missouri by the consent and with the assistance of appellant, it follows that appellee was at the time this proceeding was begun the guardian of a nonresident insane person and as such was entitled to prosecute this proceeding.

The judgment of the Circuit Court being in accord with the views here expressed and no error appearing in the record of that court, the judgment appealed from is affirmed.

!Affirmed.


text:
    National Bank of Pawnee, Appellee, v. John L. Hamilton, Appellant.
    1. Evidence, § 260

      —when books of third person are inadmissible to show falsity of statements of defendant as to earnings of corporation. In an action for fraud and deceit based on alleged fraudulent statements of the defendant as to the earnings of a corporation not a party to the action, held that the books of the corporation are not admissible in evidence to show that such statements were false.
    2. Appeal and error, § 1469*—when admission of improper evidence is harmless error. The admission in evidence of certain book entries held harmless error, if error at all, where the party complaining testified to the same facts as were shown in the entries.
    3. Fraud, § 60*—when good faith is no defense to action for. Good faith is no defense in an action for fraud and deceit where the fraud and deceit practiced consist of making false statements of fact as of the knowledge of the one speaking, for if one asserts a thing to be true as of his own knowledge when it is not true, or when he does not in fact know whether it is true or not, his statement that he knows it to be true of his own knowledge is false whether the fact established is true or not.
    4. Fraud, § 93*—when evidence as to belief, understanding or good faith is inadmissible. In an action for fraud and deceit based on false statements of fact made as of’ the knowledge of the defendant, it is incompetent for him to prove what he believed, meant, intended or understood, in connection with the falsehood stated, or to prove his good faith in the matter.
    5. Fraud, § 20*—what does not constitute an expression of opinion. In an action for fraud and deceit based on alleged false statements of defendant, held that the statements as to the paid-up capital stock of a corporation and as to its profit for a certain year were, as a matter of law, statements of fact and not expressions of opinion.
    6. Fraud, § 127*—when alleged false statements are for jury and when for court. If alleged false statements are of such a nature as to admit of being construed either as statements of fact or as an expression of opinion, the question whether they are statements of fact or expressions of opinion is for the jury, but where such statements are positive written statements of fact, the meaning of which cannot be misunderstood, and are known to be false, the question is one of law for the courts.

      7. ¡Fraud, § 115

      —when evidence is sufficient to show falsity of statements as to amount of paid-up capital stock of corporation and as to earnings. In an action for fraud and deceit based on the defendant’s alleged false statements as to the amount of paid-up capital stock of a corporation and as to its earnings for a certain year, evidence held to show that such statements were false.
    Appeal from the Circuit Court of Vermilion county; the Hon. Augustus A. Pabtlow, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.
    Rehearing denied December 2, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Walter T. Gunn and Jay Briggs, for appellant.
    O. M. Jones and Acton & Acton, for appellee.

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

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

   Mr. Justice Graves

delivered the opinion of the court.

This is an action in trespass on the case brought by appellee against appellant based on claimed false representations made in a letter from appellant to appellee relative to the financial standing and ability of the Hoopeston Malleable Iron Works of Hoopeston, Illinois, for the purpose of inducing appellee to make a loan of $7,500 to said iron works, which false and fraudulent representations it is alleged appellee believed and relied upon and on the strength of which it made the loan, and also based on the claim that by later false and fraudulent representations, known by appellant, to be untrue but believed and relied on by appellee, it was induced to accept a renewal of the note given for the loan with even less security than the one given for the original loan. The loan was never collected and the evidence tends to show it is and was all the time uncollectible.

The declaration contains three counts: Two of them charge fraud and deceit and the other charges that appellant, as the agent of appellee, assumed to give it information as the basis of making a loan, and carelessly and negligently performed its duty by giving false information on which appellee relied, and was damaged in consequence of so doing. The jury .found appellant guilty and assessed appellee’s damages at $9,475.90. Judgment was entered on the verdict with interest.

It is undisputed that appellee received an application for a loan of from $2,500 to $5,000 to the Hoopeston Horse Nail Company and that it wrote a letter to appellant, who was a banker at Hoopeston, asking for information as to the financial responsibility of that company; that appellant replied in the following language:

“Hoopeston, Illinois,
Dec. 5, 1908.
“Mr. George W. Lemmon,
Pawnee, Illinois.
“Dear Cousin:—
“Tour letter of November 28th received during my absence in Washington. I just returned from there last evening.
“I note what you say concerning the Hoopeston Horsenail paper. In reply will state that this is the strongest and best paper put out in Hoopeston and has nearly all the men of means back of it. I have been unable as yet to see the manager of the company since my return and probably will not get to see him until the first of the week. I had a talk, however, with the manager of the Hoopeston Malleable Iron Works. This is a factory that started up here a little over a year ago. They could use $7,500.00 for four months at six per cent, interest. This company has a paid up capital stock of $75,000.00. Are employing from ninety to one hundred men and their business shows a profit for the last year of over $20,000.00
“This paper would be endorsed by S. D. Porter, who is worth $125,000.00, and Mr. P. A. Smith, who is estimated to be worth from ten to fifteen thousand dollars. This paper, I consider all right. If you can use it wire me on receipt of this and I will have them sign a note and I will send the same to you for discount. They do not like the idea of a demand loan. * * *”

The evidence fairly, tends to show that relying on this letter and believing the statements therein to be true, appellee authorized appellant to make the loan to the Hoopeston Malleable Iron Works, and that a draft payable to that company for $7,500 less the discount was sent to appellant or his bank by appellee; that this draft was indorsed on the back by appellant and the proceeds credited to the account of the Hoopeston Malleable Iron Works and that, on the same day and apparently as a part of the same transaction, appellant paid out of the funds the Malleable Iron Company two notes held by appellant’s bank against that company aggregating with interest $5,730.18; that the statements in the letter that the Hoopeston Malleable Iron Works had a paid-up capital stock of $75,000; that it employed ninety or one hundred men; that its business showed a profit for the previous year of over $20,000 and that S. D. Porter was worth $125,000, were each and all false and untrue to the knowledge of appellant. That the note was not paid when due but was renewed through the agency of appellant a few times and that later the cashier and vice president of appellee called on appellant and was taken out to the plant by appellant and valuable lands and buildings were shown to the officers of appellee by appellant as the property of the Hoopeston Malleable Iron Works, and that appellant told the said officers of appellee that the note was good even without the signature of Smith, and would be paid if renewed again, and that thereupon it was again renewed.

A careful study of the evidence in this record fails to support the contention that the verdict is not supported by the weight of the evidence.

It is contended that the court erred in admitting certain books of the Hoopeston Malleable Iron Works, which was not a party to the suit, to show that that company had lost upwards of $10,000 • instead of making a profit of more than $20,000, during the year previous to the writing of the letter in question. The point is well taken. The entries in the books of a stranger to the litigation cannot be held to be binding on a litigant who has never had anything to do with them, or the matters concerning which the entries are made. As to such entries the rule res inter alios acta, alios nee prodest nee nocet applies. Leiserowitz v. Fogarty, 135 Ill. App. 609. The error in the admission of this evidence was however harmless because the facts sought to be established by the books were shown by other competent evidence which is not contradicted.

Appellant next argues that it was error to admit the entries in the bank books of the firm of Hamilton & Cunningham, Bankers, of which firm appellant was a member, for the same reason urged against the admission of the books of the Malleable Iron Works. These entries were offered for the purpose of showing that a large part of the funds loaned by appellee to the Malleable Iron Works went immediately to appellant’s bank to pay a note which that bank held against that company, as tending to show that appellant had a personal interest in having the loan in question made. No objection to' this evidence was interposed at the trial. Mr. Gunn did say: “Now that is not admissible unless they promise to follow it up and show the balance of the transaction.” The attorney for appellee replied “We do,” and that closed the incident. There was no ruling by the court and no complaint is made that the whole transaction was not later shown. Even if the admission of these entries should be held to be error, it would be harmless, for appellant himself, while on the stand in his own behalf, testified to the same facts shown by these entries.

It is next urged by appellant that he was unduly restricted in introducing evidence of Ms good faith in the transaction. Good faith is no defense where the fraud and deceit practiced consist of making false statements of fact as of the knowledge of the one speaking, for if one asserts a thing to be true of his own knowledge when it is not true, or when he does not in fact know whether it is true or not, Ms statement thatjhe knows it to be true of his own knowledge is false whither the fact assented is true or not. And if a person makes a positive statement that a thing that is susceptible of knowledge is true, it is implied that he knows it to be true of Ms own knowledge, and, if he has no such knowledge, he is guilty of actual fraud. Borders v. Kattleman, 142 Ill. 96; Coolidge v. Rhodes, 199 Ill. 24. Under such a state of facts, it is incompetent for one charged with fraud to prove what he believed, meant, intended or understood, in connection with the falsehood stated. Flower v. Brumbach, 131 Ill. 646; Sutter v. Rose, 169 Ill. 66.

The letter of appellant already quoted is not a mere statement of an opinion or belief but contains at least two false statements of fact as of the knowledge of appellant: First, that the Malleable Iron Works had $75,000 paid-up capital stock; second, that its business the previous year showed a profit of more than $20,000. There is a third statement of fact that is apparently untrue, and that is that one of the proposed indorsers, S. D. Porter, was worth $125,00,0.

In Coolidge v. Rhodes, 199 Ill. 24, it was held that representations that the capital stock of a corporation is fully paid and that the stock was paying a dividend was a representation of a material fact.

In Booth v. Smith, 117 Ill. 370, it was held that a representation that a company was successfully operating its mine and paying current expenses and that there has been invested in the plant $3,500 was a statement of fact.

In O’Donnell & Duer Bavarian Brewing Co. v. Farrar, 163 Ill. 471, it was held that a representation that a saloon was taking in $20 per day and was doing profitable business was a statement of fact and not an opinion.

. In making the statements complained of in this case, appellant was volunteering information concerning the financial responsibility of the Hoopeston Malleable Iron Works, for the manifest purpose of inducing appellee to loan that company $7,500. The language employed was positive and unequivocal. He said: “This company has a paid-up capital stock of $75,000 * * * their business shows a profit for the last year of over $20,000. This paper would be endorsed by S. D. Porter, who is worth $125,000.” In contrast with these positive statements of fact, he speaks in qualified terms of other matters. He says: “Mr. F. A. Smith, * * * is estimated to be worth, ’ ’ etc. ‘ This paper, I consider all right.” These qualified expressions of opinion emphasize the positive character of the other statements referred to. There was no error committed by the court in refusing to admit evidence of appellant’s good faith in making these false statements.

It is lastly urged that the court erred in giving and refusing instructions. The basis óf this claim is mainly that the court was wrong in construing the statements contained in the letter, already referred to, to be statements of facts instead of opinion. What we have already said on that subject is sufficient.

Some of appellant’s refused instructions were framed on the theory that it was for the jury to say whether the false statements contained in the letter in question were statements of fact or mere opinion. If the statement had been of such a nature as to admit of being construed either a.s a statement of fact or the expression of an opinion, then, whether it was a statement of fact or of opinion would be a question of fact for a jury, but where, as in this case, the statements are positive written statements of fact; the meaning of which cannot be misunderstood and are shown to be false, it becomes a question of law for the court. These instructions were also properly refused.

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

Affirmed.


text:
    George W. Duley, Appellee, v. Illinois Central Railroad Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Vermilion county; the Hon. John H. Marshall, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed with finding of fact.
    Opinion filed October 13, 1916.
    Rehearing denied December 2, 1916.
    Statement of the Case.
    Action by George W. Duley, plaintiff, against the Illinois Central Railroad Company, defendant, for personal injuries sustained by the plaintiff while attempting to board defendant’s railway train. From a judgment for plaintiff for $5,000, defendant appeals.
    Rearick & Meeks, for appellant; Jora G. Drennan, of counsel.
    C. W. Fleming and Thomas A. Graham, for appellee; R. R. Rodman, of counsel.

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

   Mr. Justice Graves

delivered the opinion of the court.

Abstract of the Decision.

1. Negligence, § 90 -—when contributory negligence is a bar to recovery. Where one is injured because of his own negligent and unlawful act, he cannot recover damages of another who may also have been negligent.

2. Cabbiebs, § 476*—when evidence insufficient to sustain judgment for plaintiff in action for injuries received while attempting to board train. In an action by a prospective passenger on a railway train for damages for personal injuries alleged to have resulted from a trapdoor not properly equipped with latches over the steps of a vestibule door falling upon him as he was attempting to board the train, it being undisputed that the train was then in motion, where the preponderance of the evidence showed that the vestibule door was-open and the trapdoor was down and that the plaintiff lost his hold and was thus injured, held that a judgment for the plaintiff could not be sustained.


text:
    Louisa Killion, Appellee, v. Modern Woodmen of America, Appellant.
    (Not to The reported in full.)
    Appeal from the Circuit Court of Fulton county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Louisa Killion, plaintiff, against the Modem Woodmen of America, defendant, to recover as beneficiary under a certificate of membership issued by the defendant. From a judgment for plaintiff for $2,100, defendant appeals.
    Truman Plantz, George G. Perrin and Chipereield & Chipereield, for appellant.
    Harvey H. Atherton and M. P. Rice, for appellee.
    Abstraftt of the Decision.
    1. Appeal and error, § 1709

      —when consideration of error is waived by counsel in brief. Where the defendant’s attorney in his brief on appeal stated that the entire case depended upon a certain issue, held that another issue which it had been' given notice in -the trial court that it would rely on as a defense was eliminated from the case.
    2. Insurance—when burden of proving change of beneficiary in mutual benefit certificate is on defendant. In an action on a benefit certificate where the defense was that the plaintiff, who was originally named as beneficiary, was not entitled to recover because the member had changed the beneficiary before his death, held that the burden of proving such contention was on the defendant.

      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 Graves

delivered the opinion of the court.

3. Insurance, § 827 —when attempt to change beneficiary in mutual benefit certificate is ineffectual. Where a member in good standing in a fraternal benefit society wishing to change the beneficiary oF his certificate, instead of filling out a blank provided by the society for that purpose partially filled out a blank form to be used only in case a suspended member wished to be reinstated, so that the certificate, as filled out, stated that the membership had been terminated by a suspension, that his certificate had been lost or destroyed, that he could not find' it, that he had not transferred or assigned it and that it was not, to his knowledge, held by any person, but the blank to be signed by the clerk of his own camp was not signed by the clerk, nor was a blank form affidavit to be filled out and signed in case the former blank was not signed by any one, and such document was not honored by the head camp when sent to it, held that the member did not pursue the course pointed out by the society to effect a change of beneficiary, and that such attempt was ineffectual to - accomplish such purpose.

4. Insurance, § 894*—when evidence as to the usual course of business of insurance company in changing beneficiaries is inadmissible. In an action to recover on a benefit certificate issued by a fraternal benefit society, where the defense was that the member had substituted another than the plaintiff as beneficiary, held that it was not error for the court to refuse to allow the defendant to prove its usual course of business in changing beneficiaries which was contrary to its by-laws, rules and regulations, which, by its notice of special defense, it had formally asserted governed the manner of effecting such change.

5. Equity, § 60*—inapplicability of equitable maxim to actions at law. The equitable rule that looks upon that as done which should have been done cannot be employed in actions at law.

6. Insurance—when evidence as to why new certificate was not issued upon change of beneficiary in mutual benefit certificate is inadmissible. In ian action on a benefit certificate issued by a fraternal benefit society, where the defendant claimed that the plaintiff was not entitled to recover as another had been substituted as beneficiary; although a new certificate had not been issued, held that it was not error for the court to refuse to allow the defendant to show why the head clerk of the society had not issued the new certificate, as the material fact to be established was what was or was not done and not why the certificate was not issued.


text:
    James W. Gullett, Appellee, v. George W. Leaverton and Grace Leaverton, Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Sangamon county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.
    Statement of the Case.
    Action by James W. Gullett, plaintiff, against George W. Leaverton and Grace Leaverton, defendants, for fraud and deceit. From a judgment for plaintiff for four hundred dollars, defendants appeal.
    The sufficiency of the declaration in this case was determined on a former appeal, reported in 188 Ill. App. 66.
    Smith & Friedmeyer, for appellants.
    Noah Gullett and Gillespie & Fitzgerald, for ap- • pellee.
    Abstract of the Decision.
    1. Principal and agent, § 155

      —when principal is hound hy misrepresentations of agent. Misrepresentations of an agent made when he is acting within the scope of his authority, or when the principal has knowledge of the deceit, will bind the principal.
    2. Husband and wife, § 143*—when wife is hound hy fraud of husband. Where, in an action for fraud and deceit for the sale of a lot, against a man and his wife, it was shown that the husband was the agent of the wife, that the representations were false, that the husband knew them to be false, that they were material transactions and were made with the intent to deceive, that the plaintiff to whom they were made 'relied upon them, and was induced to act by reason thereof, and was misled and damaged thereby, held that the evidence was sufficient to justify a judgment against the wife as well as against the husband, it tending to show that she knew of the representations, since the husband testified 'as to conversations with her about the sale and that the representations were contained in an advertisement of the lot for sale, and the wife did not deny either the making of them or their falsity.

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

   Mr. Justice Graves

delivered the opinion of the court.


text:
    Rebecca Wortman, Appellee, v. E. C. Trott et al., Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of McLean county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.
    Statement qf the Case.
    Action by Rebecca Wortman, plaintiff, against E. C. Trott and another, defendants, for personal injuries sustained by being struck by the defendants’ automobile. From a judgment for plaintiff for five hundred dollars, defendants appeal.
    Habt, Fleming & Pbatt, for appellants.
    Steeling & Whitmobe, for appellee.
    Abstract of the Decision.
    1. Automobiles and garages, § 3

      —when evidence is sufficient to show negligence of owner of automoMle in striking pedestrian.
      Where, in an action for personal injuries sustained by the plaintiff by being struck by the defendants’ automobile, the evidence showed that as the plaintiff was crossing the street she was struck from behind by the side of the car while she was walking forward, held that the fault must have been that of defendants, that the car must have been driven at such an angle across the way of the plaintiff as to overtake her with the side of the car after the front end had passed her.

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

      See ininois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, game topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.

2. Automobiles and garages, § 3 —when evidence sufficient to show nonobservance of law of road by driver. Where, in an action for personal injuries sustained by the plaintiff by being struck by the defendants’ automobile, the evidence showed that as the plaintiff was crossing the street from the east to the west she was within four or five feet of the west curb when the car coming from the south struck her, evidence held to conclusively show that the driver of the car was not observing the law of the road and was traveling on the left instead of the right side of the street.

3. Roads and bridges, § 228*—what are comparative rights of foot passenger and vehicles at crossings. A foot passenger always has an equal right with vehicles to the use of all of that part of the street used by the public traveling on foot in crossing the street.

4. Instructions, § 120*—when properly refused as inapplicable to facts. It is not error to refuse to give an instruction as a rule of law applicable to facts if there is no evidence to show their existence in the case.

5. Instructions, § 151*—when refusal of instruction covered by main charge is proper. It is not error to refuse to give an instruction on a proposition already covered by another instruction.


text:
    The People of the State of Illinois, Appellee, v. Mrs. A. H. Brown, Appellant.
    (Not to he reported in full.)
    Appeal from the County Court of Macoupin county; the Hon. Andbew J. Duggan, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.
    Statement of the Case.
    Action by the People of the State of Illinois, plaintiff, against Mrs. A. H. Brown, defendant, to recover penalty for practicing medicine without a license. Prom a judgment against her for $100, defendant appeals.
    The proof in the record showed that defendant treated Miss Meta Smith for stomach trouble and nerves for a long while by rubbing her with her hands, and told her to eat fruit and to take deep breaths many times daily. She also told her she was getting along all right and collected $1 per treatment. One witness testified that defendant treated her for nervousness for three years by rubbing her all over; that before starting the treatment defendant asked witness questions about her trouble, “just about like a regular doctor would,” and told her what the trouble was; that it was nervousness and that witness paid her $1.40 per treatment. Another witness testified that defendant treated her by rubbing for constipation and charged her $1 per treatment. Another witness testified that defendant treated her by rubbing; that she had been ailing and had been to a doctor about it; that defendant told witness her trouble was constipation, and that she paid her $1.50 per treatment. Another witness testified that defendant treated her for nervousness three times a week for five months and occasionally for three months more, by rubbing; that she told her she could cure her; that she would guarantee that witness would get well; that witness went to her as an osteopath and told her so, and defendant took her as her patient as an osteopath; that she called the treatments osteopathic, said she was an osteopath, and gave directions as to what witness should eat; that defendant charged her $1.40 per treatment.
    Alfred A. Isaacs and Peebles & Peebles, for appellant.
    James H. Murphy and Victor Hemphill, for appellees.
    Abstract of the Decision.
    Physicians and surgeons, § 8

      —when evidence sufficient to sustain judgment for practicing medicine without license. In an action to recover for the penalty provided for by Rev. St. ch. 91, sec. 9 (J. & A. If 7390), for practicing medicine without a license, evidence showing that the defendant treated her patients by rubbing, giving advice as to diet and breathing, and collected fees therefor, held sufficient to sustain a judgment against her.

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

   Mr. Justice Graves

delivered the opinion of the court.