text:
    Frances L. Kidd, Defendant in Error, v. Herbert F. Kidd, Plaintiff in Error.
    Gen. No. 5459.
    1. Divorce—when extreme and repeated cruelty established. Held, that the evidence in this case established the charge made of extreme and repeated cruelty.

    2. Divorce—when decree in violation of statute. A decree of divorce which restores the parties to the rights and privileges of unmarried persons is in contravention of the statute which prohibits remarriage within certain pei’iods.
    Divorce. Error to the Circuit Court of DeKalb county; the Hon. Duane J. Carnes, Judge, presiding. Heard in this court at the April term, 1911.
    Decree modified in part and affirmed in part.
    Opinion filed October 13, 1911.
    C. I. McNett, for plaintiff in error.
    Cliffe & Cliffe, for defendant in error.
   Mr. Presiding Justice George W. Thompson

delivered the opinion of the court.

This was a suit for divorce brought by Frances L. Kidd against Herbert F. Kidd, in the circuit court of De Kalb county on the 29th day of April, 1909, on the-ground of extreme and repeated cruelty. The defendant resided at Lincoln, North Dakota, and service was had on him by publication. A default was entered and after an ex parte hearing the court rendered a decree of divorce and gave the complainant the sole custody of a minor child and provided that the parties be severally at liberty to marry again in like manner as if they never had been married. The defendant prosecutes this writ of error to review the decree and assigns for error (1) that it was not proven that the defendant in error was an actual resident of Illinois for more than a year immediately preceding the filing of her bill; (2) that the charge of extreme and repeated cruelty is not sustained by the evidence and (3) that it was error to decree that the parties be restored to the privileges of unmarried persons.

The cause was tried June 9, 1909. The complainant testified that she was living in Cortland township, in DeKalb county, and had been living there continuously for the year past. The court asked the question “When did you come to DeKalb county?” and the-defendant in error answered, “March 1908.” The bill also was verified by plaintiff in error when filed and states that “your oratrix, Frances L. Kidd, of the township of Cortland, county of DeKalb and state of Illinois, respectfully shows that she is and for more than a year last past, continuously immediately preceding the filing of this bill of complaint, has been an actual resident of the State of Illinois.” It also appeared from the evidence of her stepfather, a farmer living in Cortland township that she was living with him. From the answers of the defendant in error to the questions of her counsel and the court, and the sworn allegation of the bill, which was confessed, the defendant in error was an actual resident of Illinois for more than one year immediately prior to filing her bill of complaint.

The bill alleges specific acts of cruelty and cruelty generally. The decree finds that “all the material allegations of the bill of complaint have been proved # * and that the defendant, Herbert F. Kidd,' has been guilty of extreme and repeated cruelty towards the complainant as alleged in said bill.” The decree finds conclusions and not facts and Avould be insufficient standing alone. The evidence however was preserved by a certicate of evidence. The evidence shows that the parties were married in NoAmmber, 1906; that nine days thereafter the plaintiff in error threw her out of bed and choked her; that after that he choked her, leaving marks on her throat, and kicked her; that on the night of May 10, 1907, he threw her ont of bed and choked her, told her if she did not leave him he would kill her and called her vile names, among them a “bitch,” in her brother’s presence; on that occasion her brother went into the room, interfered and stopped plaintiff in error’s brutal treatment of defendant in error; she slept on the floor the remainder of that night and walked three and a half miles to her mother the next morning, who sent her back; he threatened several times to put her out of doors in the winter time and to'kill her and she was sick two or three days after the choking and had marks on her throat. Plaintiff in error insists the proof does not show that what he did was done in anger. The evidence of defendant in error is corroborated in part by two other witnesses- and proves the specific allegations of the bill. If the plaintiff in error was in a normal temper when he so treated defendant in error, what would he have done if he had been angry? If the acts of plaintiff in error do not constitute extreme and repeated cruelty we are at a loss to know what would in the opinion of plaintiff in error constitute such cruelty. The evidence clearly proves physical acts of violence amounting to bodily harm,, and shows a state of danger incompatible with the marriage status. The acts proven constitute extreme and repeated cruelty within the meaning of the statute. Trenchard v. Trenchard, 245 Ill. 313; Fizette v. Fizette, 146 Ill. 328; Henderson v. Henderson, 88 Ill. 248. The court properly found the plaintiff in error guilty of extreme and repeated cruelty, and the evidence being preserved by a certificate of evidence that part of the decree granting the divorce is valid under the rule laid down in Mallory v. Mallory, 160 Ill. App. 417, and eases cited. So much of the decree as grants the divorce is affirmed.

Section la of the Divorce Act provides: “That in every case in which a divorce has been granted for any of the several causes contained in section 1 of said act neither party shall marry again within one year from the time the decree was granted * * * Provided however that nothing in this section shall prevent the persons divorced from remarrying each other” * * * and then provides a penalty of imprisonment in the penitentiary for every person marrying contrary to the provisions of the act. This act was held valid and consititutional in Olsen v. People, 219 Ill. 40. That part of the decree which provides that “the said parties be severally at liberty to marry again in like manner as if they had not been married and that each be restored to all and singular the rights and privileges of an unmarried person,” is in direct violation of the statute and should have been omitted. The decree will be modified in this court by striking out the words last above quoted.

The decree gave the defendant in error the custody of their minor child without any provision for plaintiff in error seeing the child but there is no assignment of error or any question raised concerning this provision of the decree. The decree as modified in this court will be affirmed at the costs of plaintiff in error.

Decree modified in part and affirmed in part.


source: Caselaw Access Project

license: Public Domain

text:
    Charles M. Gale et al., Defendants in Error, v. F. A. Carter et al.; Selma L. Kohn, Plaintiff in Error.
    Gen. No. 5389.
    1. Appeals and errors—when terns of appeal not renewable. If the court imposed improper conditions upon the right to appeal such action is immaterial if the review of the decree complained of is obtained by writ of error without complying with such conditions.

      2. Foreclosure-—when allowance of fees proper. An allowance of fees is proper where an officer of the complainant bank has acted as solicitor if it appears from the resolutions of such bank that such officer was entitled to charge and collect from it for services rendered in such foreclosure.
    3. Foreclosure—when allowance of fees excessive. Held, in this case, that $200 w-as an excessive allowance.
    Foreclosure. Appeal from the Circuit Court of Ogle county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed in part and reversed in part.
    Opinion filed May 25, 1911.
    Norman P. Willard, for plaintiff in error; Horace Gr. Kaufman and Franc Bacon, of counsel.
    J. C. Seyster and S. W. Crowell, for defendants in error.
   Mr. Presiding Justice G-eorge W. Thompson

delivered the opinion of the court.

This writ of error is sued out to review a decree of foreclosure. A statement of the case may he found in Gale v. Carter, 154 Ill. App. 478, where this court reversed a former decree because of the want of a necessary party and for error in the allowance of solicitors’ fees. The case was thereafter reinstated in the trial court April 25, 1910, after proper notice, and on May 5, the bill was amended, making necessary parties. The new party answered disclaiming all- interest in the matter in controversy. The court after hearing the evidence entered a decree of foreclosure for $5452.08 due the Oregon State Savings Bank and for $200 solicitors’ fees. The defendant, Selma L. Kohn, prayed an appeal to this court, which was allowed, conditioned upon her filing a bond with a resident of Ogle county as surety to be approved by the clerk of the circuit court, the bond to be for the payment of $1000 of the amount found due and interest and costs in case the decree be affirmed. She did not appeal bnt prosecutes this writ of error.

It is contended that the trial court erred in requiring that the appeal bond should be conditioned for the payment of $1,000 of the amount found due if the decree should be affirmed. The defendant in error however prosecuted this writ of error and procured a supersedeas staying proceedings in the trial court until the writ of error is disposed of by this court. If the condition of the appeal bond as fixed by the trial court was erroneous, still it does not constitute reversible error inasmuch as the plaintiff in error has obtained a review without filing an appeal bond and is not damaged by the alleged improper condition.

It is also insisted that the allowance of solicitiors’ fees is erroneous and that if any solicitiors ’ fee should be allowed the sum of $200 is excessive. The former opinion of this court held that the record showing that both the solicitors for the defendant in error, the Oregon State Savings Bank, were officers and directors in that bank, that it would be presumed the duties they performed in the foreclosure suit were in the line of their duty as officers of the bank, and there being no evidence that they were to be paid by the bank for such services, solicitors’ fees could not be recovered. The defendants in error at the last hearing offered in evidence the record of the evidence at the first trial and a resolution of the Oregon State Savings Bank adopted May 4, 1910, that any officer of the bank who is a licensed attorney, who shall render legal services for the bank should receive therefor the usual and reasonable compensation usually allowed attorneys or solicitors in such court for like services the same as though the attorney was not an officer of the bank. There is evidence showing that $200 is the usual, customary and reasonable fee for foreclosing such a mortgage. There is also the testimony of one witness that the usual, customary and reasonable fee in Ogle county for amending the bill of foreclosure and attending to the proceedings thereafter would be $200. The record shows that the case was redocketed, leave taken to amend and the entry of appearance of the new party obtained before the resolution of May 4th was passed by the Bank. All that the solicitors did was to insert the name of the tenant of the property in the bill and make the proof concerning their fees. If $200 is the usual and reasonable fee for foreclosing such a mortgage then it must be conceded that the fee allowed for proving the solicitors’ fee and for drawing the decree is excessive. Under the showing that $200 is the usual fee for all the work in such a foreclosure, $75 would be a reasonable fee for conducting the proceedings subsequent to the passage of the resolution.

Plaintiff in error insists there was error in the appointing of the receiver; that question was disposed of in our former opinion and is now res adjudiaata.

It is also contended that there was error in proceeding to a decree at the term at which the case was ré~ instated. It is not pointed out wherein the alleged error consists, and the proceedings appear to have been strictly pursuant to the statute.

The decree is affirmed in all particulars except as to the allowance of solicitors’ fees which are reduced to $75. The costs of this writ of error are taxed to defendants in error.

Affirmed in part, reversed in part.


text:
    John Naughton, for use of William Reineke, Appellee, v. John Gordon, Appellant.
    Gen. No. 5372.
    •1. Appeals and ■errors—upon what right of appeal predicated. There is no inherent right to an appeal in any party to a suit at law; whei'ever a right to an appeal exists it is derived from some statute, and to perfect an appeal the statute must be complied with.
    2. Appeals and eebobs-—who not entitled to appeal. A beneficial plaintiff has no right to appeal in his own name from a judgment of a justice of the peace where no judgment for costs has been rendered against him.
    Action commenced before justice of the peace. Appeal from the County Court of La Salle county; the Hon. W. H. Hinebatjgh, Judge, presiding. Heard in this court at the April term, 1911.
    Reversed.
    Opinion filed October 13, 1911.
    Jambs J. Conway, for appellant.
    Arthur H. Shay, for appellee.
   Mr. Presiding Justice George W. Thompson

delivered the opinion of the court.

John Naughton was the owner of a stallion to which William Reineke bred a mare. Reineke sold the mare at auction and at the sale announced that the purchaser would have to pay the service fee. Gordon bought the mare, but refused to pay the service fee. Naughton threatened to sue Reineke, who then paid the stud service, and brought a suit before a justice of the peace, entitled John Naughton for the use of William Reineke against John Gordon, to recover such service fee. The justice decided the case in favor of Gordon, but did not render a judgment for costs against Reineke, the party for whose use the suit was brought, as he might have done under section 19 of chapter 33 of the Statute. What would have been the effect if a judgment had been rendered against Reineke, the beneficial plaintiff, for costs is not presented for review. Reineke filed in the office of the county clerk an appeal bond signed by himself and a surety. The record does not show that any summons was issued, but Gordon appears to have voluntarily entered his appearance and moved to dismiss the appeal because it was not taken by Naughton, the plaintiff. Reineke entered a cross motion for leave to amend the appeal bond. The court overruled the original motion- and allowed the cross motion. The form of the bond was changed to show that the appeal was taken by the beneficial plaintiff, but Naughton declined to sign it. Gordon again moved to dismiss the appeal for the reason it was not taken by Naughton, the plaintiff, and that the alleged bond is not such an appeal bond as is contemplated by statute. The court overruled the motion. The cause was tried by a jury and a verdict and judgment for fifteen dollars rendered against the defendant, who prosecutes this appeal.

The only question presented that we deem necessary to consider is whether the county court had any jurisdiction of the parties to this cause by virtue of the attempted appeal by Reineke. There is no inherent right to an appeal in any party to a suit at law; where-ever a right to an appeal exists it is derived from some statute, and to perfect an appeal the statute must be complied with. Steger v. Steger, 165 Ill. 579; Union National Bank v. Barth, 179 Ill. 83.

Naughton, the nominal plaintiff, has no interest in the matter in controversy and declined to take the part of either side; while Reineke, the beneficial plaintiff who began the suit in the name of Naughton for his use to recover the fifteen dollars from Gordon, has no right under any statute to appeal in his own name. McCormick v. Fulton, for use, 19 Ill. 570; Tedrick v. Wells, 152 Ill. 214; Union National Bank v. Barth, supra; Gilray for use v. Met. Nat. Bank, 113 Ill. App. 485; Gates v. Thede, 91 Ill. App. 603; Fay v. Seator, 88 Ill. App. 419.

Whatever may he the rule concerning appeals from courts of record, our attention has not been directed to and we have not found any provision of the statute which permits a beneficial plaintiff against whom no judgment has been rendered to appeal from a judgment of a justice of the peace in his own name. The appeal must he in the name of the nominal plaintiff. The judgment is reversed because the attempted appeal by the beneficial plaintiff, without the nominal plaintiff joining in it, was not an appeal, and did not give the county court any jurisdiction. The judgment is therefore reversed.

.iReversed.


text:
    William Dougherty, Appellee, v. Illinois Steel Company, Appellant.
    Gen. No. 5340.
    Master and servant—effect of equal knowledge. If a servant have equal knowledge with the master of the conditions prevailing at the place at which he is working, even if injured because of such conditions the burden is upon him to show that he did not know the danger which resulted from such conditions.
    Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the April term, 1911.
    Reversed.
    Opinion filed October 13, 1911.
    Garnsey, Wood & Lennon, for appellant; Knapp & Campbell and William Beye, of counsel.

      Barr, McNaughton & Barr, for appellee.
   Mr. Presiding Justice George W. Thompson

delivered the opinion of the court.

William Dougherty brought suit against the Illinois Steel Company to recover damages for personal injuries alleged to have been sustained because of the negligence of the defendant. A trial before a jury was had, a verdict for $15,000 returned upon which judgment was entered, and the defendant appeals.

The appellee when hurt was in the employ of the appellant as an oiler and in the course of his work was re-required to be upon an overhead platform, which ran alongside of the overhead shafting upon which were various gearings and belts. This platform was reached by means of stationary ladders about twenty feet high and eighteen inches wide, standing substantially perpendicular. One of these ladders was constructed of iron with round rungs three fourths of an inch in diameter and about a foot apart. Behind this particular ladder and in close proximity to it ran an inch steam pipe about ten feet from the ground floor and parallel with the rungs. It is claimed by appellee' that this steam pipe was negligently placed too close to the ladder and to one of the rungs and by reason thereof he was injured. Appellee had been employed as an oiler about eight months before the injury. The evidence is conflicting as to how long this ladder and steam pipe had been located as they- were at the time of the injury. Appellee testified this ladder had been there from two to four weeks before he was injured, and A. Parker, a witness for appellee, testified it had been placed there between three and four weeks before the accident, while at least four witnesses testified on behalf of appellant that the iron ladder was there from two to four months. There is also a conflict in the testimony as to the location of the .steam pipe with reference to the rung of the ladder next below it. Parker testified that the pipe was about an inch and a half east of or behind the ladder and two or three inches above the rung. On the other hand thirteen witnesses testified the steam pipe was from four to six inches behind the ladder and seven of them that the pipe was about half way between the rungs. It was the duty of the appellee regularly to oil the bearings upon the overhead shafting from the elevated platform, and at times to place rosin on the belts to prevent their slipping. On the day of the accident a belt had broken and slipped off one of the pulleys; and appellee with other men had replaced the belt. After the belt had been adjusted it slipped, and appellee went down a ladder and returned with a box of rosin. The belt was sprinkled with rosin by appellee and he oiled some bearings. He then threw to the ground a rope he had used in adjusting the belt, and some tools, and started down the ladder with the rosin box under one arm and when his feet had got to about the center of the ladder he tripped or slipped and fell to the floor and received the injuries complained of. The undisputed proof is that appellee had used the ladder daily at least two or three times for from two weeks to several months. There was nothing intricate about the ladder and pipe, and the conditions were obvious to every person using the ladder. Every time he used this ladder he had full opportunities for observing and must have seen the steam pipe and known its location in relation to the ladder. Appellee does not deny knowing all about the pipe and its proximity to the ladder, and if there was any danger because of its location he must be held to have assumed the risk. If the pipe was so close to the rung as to catch his foot then he had equal knowledge with his employer of that fact, and the burden was on appellee of showing he did not know the danger. Galloway v. C. R. I. & P. Ry. Co., 234 Ill. 474; Montgomery Coal Co. v. Barringer, 218 Ill. 327; Illinois Steel Co. v. Mann, 170 Ill. 200; McCormick Harvester Co. v. Zakzewski, 220 Ill. 522.

The clear preponderance of the evidence, however, is that the rung and pipe did not occupy'such a relation to each other that his foot could be caught under the pipe, since the pipe was from four to six inches back of the ladder and about midway between the rungs, and that appellee in coming down the ladder had one hand and arm occupied carrying the box and in passing his remaining hand from one rung to another on the perpendicular ladder he slipped or lost his balance, and was injured by an assumed risk of his employment. Ladders are appliances in common use and the weight of persons using them is carried first on one foot and then on the other in either ascending or descending, and at the same time the_party must use his hands to cling to the ladder and keep himself upright while going from rung to rung. It would be contributory negligence for a person descending a perpendicular ladder not to have hold of the ladder with one of his hands and one foot supporting himself all the time. If one foot was resting on the ladder and he had hold with one hand while moving the other hand and foot the appellant would not have fallen, even if the foot he was'moving got caught as he claims. The fact that he had the rosin box under his arm did not excuse him from using his hand to hold himself upright on the ladder. The appellee did not use ordinary care and by his own negligence contributed to his injury. There can be no recovery in this case upon the evidence of appellee and the judgment is reversed.

Reversed.

Finding of fact: We find that the position of the ladder from which the appellee fell and the location of the pipe behind the ladder were plainly visible and that the ladder had often been used by appellee preceding the time of the accident, and he is chargeable with knowledge of the condition and risk and if injured as claiméd by him it was a risk which he assumed and he was not in the exercise of ordinary care and contributed to his own injury.


text:
    A. L. Chivers, Appellee, v. John Sigmund, Appellant.
    Gen. No. 5473.
    1. Evidence—what not competent, to show condition of merchandise. Testimony that cheese was not paid for but was returned because of its condition is not competent to establish such condition.
    2. Interest—when unreasonable and vexatious delay established. Held, from the condition of the record in this case that the Appellate Court could not say that the jury were not justified in finding the plaintiff entitled to interest because of an unreasonable and vexatious delay of payment.
    3. Instruction's—when incompleteness of oral, cannot be urged. If the court by agreement has instructed the jury orally and after the conclusion of his instructions inquires, "Is there anything further that you want the jury instructed on?" to which the reply is made "I think that covers it," thereafter no complaint can be made that the court improperly failed to instruct the jury upon a particular issue.
    Assumpsit. Appeal from the Circuit Court of Du Page county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    John W. Leedle, for appellant.
    Charles W. Hadley, for appellee; J. J. Sutton, of counsel.
   Mr. Presiding Justice George W. Thompson

delivered the opinion of the court.

Plaintiff, who is a manufacturer of cheese at Columbus, Wisconsin, brought suit in.assumpsit against the defendant, who is a commission merchant in Chicago, to recover a balance of $522.25 and $51.60 interest claimed to be due on a shipment of cheese. Plaintiff received a circular letter in June, 1908, from the defendant soliciting shipments of cheese, to which he replied that he was making “American Cheese Twins” and would sell if the price was right. The defendant replied stating that he could use 300 boxes of the cheese named by plaintiff and would like to have plaintiff make a price and he thought eleven cents would be about right. There was then a conversation between the parties over the telephone as the result of which 300 cheese were shipped by plaintiff from Columbus to the defendant in Chicago on June 25th, the cheese arriving in Chicago on June 27th.

Plaintiff claims that the cheese were to be delivered f. o. b. cars at Columbus, while the defendant claims the cheese were to be delivered in Chicago and that the plaintiff guaranteed the cheese to be all number one. A cheese inspector of the defendant testified that, he inspected the cheese in Chicago the latter part of June; that he went through and graded the entire consignment of cheese; that he picked out what he thought was number one and what he thought was not number one, and made a memorandum and report in writing to his employer. The defendant subsequently on July 2nd, July 7th and July 20th wrote letters to the plaintiff asking him to consent to have the cheese graded, although he had had it graded in June but gave the plaintiff no information as to the grading or the report of his inspector. The defendant on July 2nd, after he had received and inspected the first purchase, also bought a second lot of 139 boxes of cheese from the defendant “at eleven cents straight,” and over which there is no controversy. The defendant failing to pay for the cheese plaintiff placed the claim with an attorney for collection. Afterwards the attorney with whom the claim had been placed for collection visited the defendant when the defendant claimed that the plaintiff was owing him. The attorney replied that if the defendant was owing him “Let us see how your account stands,” the defendant replied, “You can go to H—1, ’ ’ and on July 22nd the defendant wrote a letter to the attorney in which he used the phrase “Why in H—1 he should hesitate to have this first shipment of cheese graded we cannot understand.” On July 22nd defendant remitted $2,500 which paid for all of the last shipment and part of the first shipment. On September 15, defendant sent a statement to plaintiff claiming a balance due defendant of ninety-four cents. The case was tried before a jury and a verdict returned for the full amount claimed, on which judgment was rendered. The defendant appeals.

Appellant assigns for error that the court erred in permitting the plaintiff to prove that he had shipped 50 boxes of cheese a week to Tennessee for sixteen years. We do not see how this was in any way material to the issue tried. He had testified that he had been a manufacturer of cheese for 30 years. While the evidence objected to was not material its admission was harmless error.

Appellee offered to prove on the trial that, within a month from the receipt of the cheese, he had sold part of it to A. H. Webber and Go., South Water St., Chicago, and they refused to pay for it and returned it on account of its condition. This the court refused to admit, but stated to the appellee that it was competent to show by proper evidence what was the condition of the cheese or that it was unmerchantable. The evidence offered was not proper to show the condition of the cheese, but it was competent for parties who saw the cheese to testify to its condition, but such evidence was not offered; there was no error in the rnling of the court sustaining the objection.

The jury returned a verdict for the amount of the balance due on the shipment with interest. There can be no recovery for interest in this character of a case except for unreasonable and vexatious delay of payment. On the trial counsel for appellee asked counsel for appellant, “Is there any dispute about what we claim is due?” Counsel for appellant replied, “No, I think not.” "Whereupon counsel for appellee stated, ‘ ‘ Then it is stipulated that if there is any due us on this account, our claim is that there is due1 us the sum of $573.85.” While this, when carefully read, is not a stipulation, that if there is anything due on the account it is the sum of $573.85, yet the jury may have determined that to be the purport of the stipulation. There was much correspondence between the parties offered in evidence. We cannot say upon a careful consideration of all the evidence that the jury were not justified in finding the appellee entitled to.interest because of an unreasonable and vexatious delay of payment. Unless there is error of law requiring a reversal of the case, we would not be justified in disturbing the finding of the jury on a question of fact which has been' approved by the trial court.

It was agreed by both parties that the court might instruct the jury orally. After the court had instructed the jury orally the question was asked, “Is there anything further that you want the jury instructed on?” Counsel for appellant replied, “I think that covers it.” The appellant now assigns for error that the court failed to instruct relative to what the appellant claimed was a new agreement concerning the cheese after it arrived-in Chicago. There is no exception to the instructions given neither was there any request for any further instruction. The appellant is not in a position to question either the correctness of the instruction given or the omission now complained of. Appellant is -precluded from insisting upon this assignment of error. Bruen v. People, 206 Ill. 417; Williams v. People, 164 Ill. 481; Hefling v. Van Zandt, 162 Ill. 162; Malott v. Hood, 201 Ill. 202; Thode v. Schoenhofen Brewing Co., 69 Ill. App. 403.

There is no reversible error in the case and the judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice George W. Thompson Dibell, J.,

text:
    W. Arthur Latham, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    Gen. No. 5477.
    1. Measure op damages—in action for injury to personal property. When personal property has been injured by the negligence of another and can be repaired, the proper, measure of damages is the cost of the repairs and the value of the loss of the use of it while it is being repaired. If the property cannot be repaired then the measure of damages is the difference between the market value of the property before the injury and the value of the wreckage.
    2. Instructions—what not essential to authorize directing verdict for plaintiff on-proof of allegations of declaration. An instruction directing a verdict for the plaintiff on proof of the allegations of the declaration can only be justified when the declaration contains a complete statement of a cause of action.
    3. Instructions—when submits question of law. An instruction which leaves to the jury the determination of the question as to what is a proper and sufficient warning or signal is erroneous in submitting a question of law.
    4. Instructions—practice of submitting abstract propositions. Abstract propositions of law should not be given to a jury as the jury are liable to be misled thereby.
    5. Negligence—what does not preclude recovery for injury to auto-

      mobile. The fact that the badge of the chauffeur was not in sight as required by statute will not defeat a recovery for an injury to an automobile resulting from the negligence of the defendant.
    Dibell, J., dissenting.
    Action in case. Appeal from the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding. Heard in this court at the April term, 1911.
    Reversed and remanded.
    Opinion filed October 13, 1911.
    W. R. Hunter and Wayne T. Dyer, for appellant.
    Cooper & Hobbie, for appellee.
   Mr. Presiding Justice George W. Thompson

delivered the opinion of the court.

This is an action in case brought by W. Arthur Latham against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company to recover damages for injuries to an automobile which was struck by a ear of defendant while the automobile was crossing the railway tracks of defendant in the city of Kankakee. A trial was had before a jury, which returned a verdict for $1,350 in favor of plaintiff, upon which judgment was rendered, and the defendant appeals.

The declaration contains eight counts. The court held there could be no recovery on the second and third counts. The negligence alleged in the first count is that appellant so negligently drove and propelled a car and engine on its tracks across Hobbie avenue, etc.; in the fourth, failure to ring a bell Or blow a whistle; in the fifth, suffering cars to stand upon tracks adjacent to a street obstructing the view, and failure to give any “proper or sufficient warning of the approach of the engine;” in the sixth, negligently kicking a caboose without an engine attached over the highway withont giving any signals; in the seventh obstructing a' public highway by leaving oars standing thereon not for any purpose permitted by the’statute; and in the eighth, maintaining the highway crossing in snch a manner that vehicles conld not cross except at a slow speed. The plaintiff was not present at the time of the accident bnt the automobile was under the care of a chauffeur of plaintiff. Each count avers that the plaintiff and his agents, servants and employes then and there in the possession and control of the automobile, were at all times in the exercise of due care and caution for the safety and preservation of plaintiff’s automobile. The damages claimed are that the automobile was destroyed and rendered of no value whatever, the loss of rentals because he was unable to replace his machine, and loss of profits from failure to sell machines because he has not been able to replace his destroyed sample machine.

The evidence shows that Hobbie avenue in the city of Kankakee runs north and south and has a down grade towards the north. This avenue crosses the switch yards of the defendant company. There are eleven tracks of the defendant across this avenue, running diagonally from the northeast to the southwest of which the south track is the main track; the north track is known as track No. 22, the track south of that as No. 21, and that next south as No. 20. The evidence tends to show that cars were standing on tracks No. 21, 20 and the more southerly tracks on both sides of the avenue but track No. 22 was clear. The evidence is conflicting as to whether the standing cars encroached upon the street or came to the street line or were some distance back from the street line. The automobile is described as a five passenger thirty horsepower Mitchell, capable of running as slow as one and one-half miles and as fast as fifty miles per hour. About 5:15 p. m. on August 23, 1909, the automobile in charge of a chauffeur named Dole with four adult passengers and two children, while going north on Hobbie avenue, was struck by the front end of a caboose going southwest on track No. 22 and badly smashed. The evidence is conflicting as to the rate of speed the automobile was running when struck. The party were going to a six o’clock dinner near Manteno twelve miles from Kankakee. The chauffeur testified he had been running at the rate of twenty-five miles an hour on Hobbie avenue but had slowed down to eight miles an hour when he crossed the first railroad track and was running six miles an hour when struck, and there is evidence that the machine was running at the rate of fifteen miles an hour across the tracks. The chauffeur states he did not see the caboose until the front wheels of the automobile were on track No. 22.

The automobile was described by the chauffeur as a noisy four cylinder Mitchell. It has three different speed gears with an accelerator, a clutch and two kinds of brakes and was running on the high gear across the tracks when struck by the caboose. The chauffeur testified that while the machine could run safely one and a half miles an hour on low gear and be stopped at the distance of a couple of feet, it could not safely be run below four miles an hour on high gear because of the danger of “killing” the engine. It was not claimed the caboose was running over between four and six miles an hour; there is a conflict as to whether a locomotive was pushing the caboose or it was running by gravity, but a locomotive was behind the caboose close to it, if it was not pushing it. The evidence is also conflicting as to whether or not the bell was ringing on the locomotive; several witnesses testify they did not hear a bell while several other witnesses testify the bell was ringing. As the case must be reversed for errors of law and upon another trial there may be additional evidence, we express no opinion concerning the right of plaintiff to a recovery.

The accident occurred August 23, 1909. Appellee testified the wreck of the automobile was worth $10,0 and the value of the car before the accident was $1,450. Plaintiff was permitted to testify over the objection of the defendant that he was unable to get a car to replace the destroyed car until the middle of December and “that the earning power at the time of the accident and from then until December of a touring car of the capacity of this car for livery and renting purposes in the city of Kankakee” was “at least $100 per month. ’ ’

When personal property has been injured by the negligence of another and can be repaired, the proper measure of damages is the cost of the repairs and the value of the loss of the use of it while it is being repaired. If the property cannot be repaired then the measure of damages is the difference between the market value of the property before the injury and the value of the wreckage. Crossen v. C. J. & E. Ry. Co., 158 Ill. App. 42, and cases cited. Appellee testifies the machine could not be repaired to make it as good as it was before the injury, hence it was error to permit evidence of the rental value of the machine. All that appellee was entitled to recover, if he was entitled to recover, was the difference between the value of the machine before the accident and the value of the wrecked machine. However it would appear from the evidence that the jury only returned a verdict for the value of the machine before the accident less the value of the wreck, without adding anything for the loss of the use of the machine, and appellant does not appear to have been injured by the admission of the evidence of loss of rentals.

The fourth instruction given for appellee tells the jury that if appellee has proved the allegations contained in one or more counts of his declaration and the jury believe from the evidence plaintiff’s property was injured as alleged and that plaintiff’s employes were in the exercise of reasonable care for the safety of the automobile, then plaintiff is entitled to recover. The fifth count alleges negligence in obstructing the highway by standing cars and that defendant negligently failed to give any proper or sufficient warning of the approach of the caboose, etc. Neither the count nor the instruction undertakes to define or tell the jury what is a proper or sufficient warning and leave it to the jury to decide what is a proper or sufficient warning or signal. ' The jury were thereby given free scope to use their judgment as to what the law requires as to the signals and warning that a railway must give of, the approach of trains to travellers crossing the tracks of a railway. . This was reversible error, since an instruction directing a verdict for the plaintiff on proof of the allegations of the declaration can only be justified when the declaration contains a complete statement of a cause of action. Krieger v. Aurora, Elgin & C. Ry. Co., 242 Ill. 544; Illinois Terra Cotta Lumber Co. v. Hanley, 214 Ill. 243. The practice of referring the jury to the declaration for the issues is not a good one, but the court should state the issues to the jury in the instructions.

The second instruction was an abstract proposition of law, namely, that railways are required to use ordinary care to construct and maintain crossings that are reasonably safe for vehicles. Abstract propositions of law should not be given to a jury, as a jury are liable to be misled thereby.

The locomotive and caboose had been standing for some time about forty rods from the crossing before the accident. The eighth instruction tells the jury it was necessary for the defendant to have rung the bell for eighty rods before it reached the crossing; and under such circumstances the instruction should have required the bell to be rung from the time the engine and caboose started towards the highway to cross it.

Appellant insists that the appellee cannot recover because the badge of the chauffeur was not in sight as required by the statute. If it was not in sight as required by the statute still that fact would not give appellant any right to negligently run over the automobile. The location of the chauffeur’s badge in no way contributed to the accident. Crossen v. C. J. & E. Ry. Co., supra. For the errors indicated the judgment is reversed and the cause' remanded.

Reversed, and remanded.

Dibell, J.,

dissenting.

The verdict evidently was only for the value of the automobile just before the collision, less its value immediately after the collision. If plaintiff was entitled to recover at all, the proof warranted a verdict for the amount here found. As the jury did not allow for any other elements of damage, defendant was not harmed by the admission of evidence concerning such other elements. The court gave thirty instructions requested by defendant, most of them without modification, and thereby the jury was very fully instructed upon every question which defendant considered material. I conclude that the verdict for plaintiff was warranted by the proofs, and that there are no defects in the instructions given at the request of plaintiff which require a reversal of the judgment, in view of all the other instructions given. Therefore I am of opinion that the judgment should be affirmed.


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    Milford E. Streeter, Plaintiff in Error, v. Western Wheeled Scraper Company, Defendant in Error.
    Gen. No. 5480.
    1. Negligence—failure to guard dangerous machinery. It is actionable negligence to operate a dangerous power-driven machine, hot properly enclosed or otherwise guarded, and the only effect of the provisions of the statute requiring such a machine to be guarded is to render the owner or operator liable to the statutory penalties after failure to comply with a notice from 'the inspectors.
    2. Negligence—what defense to action under Injuries Act. If the injury to the plaintiff was caused by either an assumed risk, contributory negligence or the negligence of a fellow-servant, then he cannot recover.
    3. Master and servant—when doctrine of assumed rislc applies. A workman experienced in working with dangerous machinery and knowing the danger, must be held to have assumed the risk.
    Action in case for personal injuries. Error to the Circuit Court of Kane county; the I-Ion. Duane J. Carnes, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    John M. Raymond, John K. Newhall and R. S. Egan, for plaintiff in error. ■
    J. O. Muephy and E. L. Lyon, for defendant in error.
   Mb. Peesiding Justice G-eobge W. Thompson

delivered the opinion of the court.

This is an action in ease brought by Milford E. Streeter against the Western Wheeled Scraper Company to recover damages for the loss of three fingers. The first count of the declaration avers that defendant in error was operating a factory for the manufacture of plows and operated therein certain power driven machinery, including saws, planers, jointers, etc., and that plaintiff was an employe in said factory and that defendant negligently failed to furnish reasonably safe machinery, by reason whereof plaintiff, while in the exercise of due care, was injured. The second count avers that defendant negligently failed to furnish plaintiff a reasonably safe place to work by reason of the close proximity of a certain jointer and saw. Four other counts aver negligence of the defendant in that it permitted certain knives which formed a part of the jointer to be unprotected and dangerous to employes, contrary to the statute. At the close of the evidence for the plaintiff the court directed a verdict for the defendant, on which after overruling a motion for a new trial judgment was entered, and the plaintiff sues out this writ of error to review that judgment.

The evidence shows that the jointer, on which plaintiff in error was injured, is composed of an iron table five or six feet long and twelve inches wide. In the center of the table and sunk beneath the surface was a set of knives which revolved at the rate of 2,600 revolutions a minute. The knives are run by a belt to a counter shaft near the floor. There were no guards over the knives or protection around the counter shafting or belt. The floor was covered with rubber so that employes would not slip. There was an open space of ten feet between the jointer and the north side of the building, the windows in which were three feet apart and extended from within two feet of the floor to the ceiling. The nearest machine to the jointer was a band saw eleven feet distant. The material was first run through the band saw and then placed on the floor about three feet from the jointer to be within easy reach of the men operating the jointer. Plaintiff in error at the time of the injury was twenty-four years of age, of average intelligence and had considerable experience with machinery; he testified that he had worked in a garage five months; that he had operated a steam punch for defendant in error about a year but that he had only worked three days as a helper at the jointer machine; that he saw the knives on the machine; knew that they revolved rapidly and that the jointer was a dangerous machine; that the operator gave him instructions not to stand at the side of the machine and where to stand and what he should do. Just prior to the accident plaintiff in error was standing at the north side of the jointer facing south six to ten inches from it. The helper at the band saw either with a beam or his person bumped against plaintiff in error, knocking plaintiff in error from his feet. He grabbed at the side of the jointer to save hianself, and his hand being wet with perspiration it slipped and came in contact with the knives which cut off three fingers.

Plaintiff in error contends that because the jointer was a dangerous power driven machine having its knives unguarded and unprotected, the defendant in error under section. 89 of chapter 48 of Hurd’s Statutes (1909) was guilty of negligence; while defendant in error contends that a violation of section 89 was not actionable negligence until the factory inspector had notified the owner or operator to remedy the unsafe condition pursuant to section 93 of the same chapter. We cannot agree with the contention of defendant in error but hold that it is actionable negligence to operate a dangerous power driven machine, not properly enclosed or otherwise guarded, and that the only effect of section 93 is to render the owner or operator liable to the statutory penalty after failure to comply with a notice from the inspectors.

None of the counts charge wilful negligence on the part of the defendant in error. The act to provide for the health and safety of employes in factories and workshops only provides that a violation of the act shall render the parties violating it subject to a penalty. It does not make any violation wilful, or give ■ to the party injured by the violation of the act a right of action for the injury, freed from the defenses of assumed risk, contributory negligence and fellow servants, which could not be interposed if the negligence was wilful, as in the case in the Mines and Miners Act and the Railroad Safety Appliances Act. If the injury to defendant in error was caused by either an assumed risk, contributory negligence or the negligence of a fellow servant, then he cannot recover. Browne v. Seigel Cooper Co., 191 Ill. 226.

Counsel for plaintiff in error, on page 14 of their argument, admit the injury to plaintiff in error was caused by the act of a fellow servant. They say: ‘£ The first moving cause which produced the injury, was the interference with plaintiff in error by a fellow workman bumping into him either with his body or with a plow beam.” This would appear to be an admission that the plaintiff in error was injured by the negligent act of a fellow-servant.

The evidence of plaintiff in error shows that the risk of injury to plaintiff in error if he should touch the knives of the jointer was obvious, open and apparent, and that he knew the danger and risk. He was a workman experienced in working with dangerous machinery, and, knowing the danger, must be held to have assumed the risk. I. C. R. R. Co. v. Fitzpatrick, 227 Ill. 478; Browne v. Seigel Cooper Co., 191 Ill. 226; Harrington Mfg. Co. v. Arendell, 135 Ill. App. 406.

The evidence of plaintiff in error conclusively shows that he knew and understood the condition of the machine with which he was working, and that he knew and understood the danger of operating it in the condition it was with the knives unguarded. In such case there was no question of fact to be submitted to a jury; it was a question of law on undisputed facts, and it became the duty of the court to direct a verdict. Knox v. American Rolling Mills Co., 236 Ill. 437; C. & E. I. Ry. Co. v. Heerey, 203 Ill. 492; Harrington Mfg. Co. v. Arendell, 135 Ill. App. 406. There was no error in the court in instructing a verdict for defendant in error. The judgment is affirmed.

Affirmed.


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    Grand Union Tea Company, Appellee, v. John R. Hanna, Appellant.
    Gen. No. 5481.
    1. Landlord and tenant—when hold-over wilful. If a lease has been duly terminated a hold-over justified only by inability to obtain other premises is wilful.
    2. Landlord and tenant—who may recover double rental for holdover. If the hold-over be wilful the grantee of the landlord may recover double rent as provided by section 2 of the Landlord and Tenant Act.
    Action in debt. Appeal from the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October -13, 1911.
    John M. Raymond and John K. Newhall, for appellant.
    John S. Sears and Roy J. Solpisburg, for appellee.
   Mr. Presiding Justice George W. Thompson

delivered the opinion of the court.

This is an action in debt brought by the Grand Hnion Tea Company against John R. Hanna, to recover double rent for the detention of certain demised premises because of the withholding of possession of them after the termination of the lease. The case was tried without a jury upon a stipulation of facts substantially as follows: That on May 1, 1897, E. K. Is-bell leased to defendant the premises in question for a period of five years; that thereafter defendant held over from year to year under the terms and conditions in the lease with the exception that from time to time by agreement of the parties the amount of the rent was increased; that on February 6, 1905, the landlord served a written notice upon defendant terminating the tenancy on May 1, 1905; that on January 12, 1905, the landlord leased the premises in question to plaintiff for a period of five years beginning May 1, 1905, at a stipulated monthly rental of $100; that defendant continued in the occupancy of the premises in question from May 1, 1905, until September 10, 1905, on which date he vacated them; that immediately after May 1, 1905, the plaintiff began a suit in forcible detainer before a justice of the peace for possession of the demised premises; that judgment was rendered in favor of appellee; that the defendant appealed from that judgment to the county court of Kane county; that the defendant took a change of venue from that court to the city court of Elgin and before suit was prosecuted to final judgment it was stricken from the docket, September 10, 1905; that on May 19, 1905, plaintiff and the landlord each served separate written notices on defendant demanding possession of the premises. The leases and various notices served on the defendant are attached to the stipulation and admitted in evidence. It is also stipulated that the fair cash monthly rental of the premises after May 1,1905, was $100 per month. The defendant submitted propositions of law requesting the court to hold that under the agreed facts the plaintiff could only recover the stipulated rental value of the premises and that the plaintiff is not entitled to recover under the provisions of section 2 of chapter 80 of the Revised Statutes of Illinois. The court refused to hold the law as requested by the defendant and rendered judgment in favor of the plaintiff for $733, being double the rental value of the premises from May 19, until the defendant surrendered possession. The defendant appeals.

Appellant contends (1) that the holding over by appellant was not wilful; (2) that there was not such a wilful holding over by the appellant as would give the landlord the benefit of the provisions of the statute for double rent, and (3) that section 2 of chapter 80 does not give to a tenant the right to recover double the rental value from a former tenant who wilfully holds over, even if the landlord would have had that right if he had not released the premises.

The appellant had become a tenant from year to year, the year ending May first. The landlord gave a notice in writing under the provisions of section 5 of the Landlord and Tenant Act terminating the tenancy on May 1. The appellant not vacating the premises on May 1, as he was required by law to do, the new tenant brought suit in forcible detainer to recover possession. A judgment was rendered by the justice of the peace finding that the appellant unlawfully detained possession of the premises. The appellant appealed from that judgment to the county court, and apparently for the purpose of delay took a change of venue from the court he had appealed to, to the city court of Elgin, and then as soon as he had rented another building vacated the premises on September 10, when the forcible detainer suit was dismissed. The fact that he may have been unable to secure another building at an earlier time was no legal reason for his retaining possession of a building to which his lease had been terminated. It is very clear that the holding over by appellant was wilful and in defiance of law.

Appellant urges in support of his second contention that the statute does not embrace the case where a landlord terminates a tenancy from year to year by giving sixty days’ notice provided by tbe statute, and insists that the case of Stewart v. Hamilton, 66 Ill. 253, is conclusive of his contention. 'We do not so regard it, for the reason that in the Stewart case the lease did not expire at the end of a rental period or term but was forfeited by the landlord for the breach of a covenant not to assign, and it was sought to recover double rent in that case for the forfeited term which had not expired. The lease of appellant was not forfeited but was terminated at the expiration of the rental period by the notice provided by the statute. It was the expiration of a lease from year to year that ended the appellant’s right of possession, and no forfeiture is involved. The term ended by expiration of the time the lease was to run, and the notice of the landlord merely prevented the tenant from entering upon a new term. If the landlord had not granted his right of possession to appellee by the new lease he would have had the right to sue for and recover double rent.

The remaining question for our determination is whether or not appellant is liable to the new tenant for only the fair cash rental for the premises or for double the rental value.

Appellant contends that the provisions of section 2, chapter 80 Revised Statutes of Illinois (Landlord and Tenant Act), do not permit a recovery for double rental by a tenant from d former tenant who wilfully holds over. Section 2 provides that “if any tenant * * * shall wilfully hold over * * * after the expiration of such term or terms and after demand made, in writing, for the possession thereof, by his or their landlord or lessor or the person to whom the remainder or reversion of such lands, tenements or hereditaments shall belong, such person shall, for the time such landlord or rightful owner be so kept out of possession, pay to the person so kept out of possession, or his legal representatives at the rate. of double the yearly value of the lands * * * so detained.” This section is almost identical with the English statutes on that question, • and under the English statute it was held in Blatchford v. Cole, 94 Eng. Com. Law 514, that a suit for double the rental value could only be maintained by the lessor or the landlord of the person entitled to the reversion, and not by one to whom the landlord had granted a new lease to commence at the expiration of the former lease, because such new lessee had no right until he actually obtained possession.

The Illinois statute contains a further provision which does not appear to be in the English Statute. Section 14 of-the Landlord and Tenant Act provides:

“The grantees of any demised lands, tenements, rents or other hereditaments, or of the reversion thereof, the assignees of the lessor of any demise, and the heirs and personal representatives of the lessor, grantee or assignee, shall have the same remedies by entry, action or otherwise, for the nonperformance of any agreement in the lease, or for the recovery of any rent, or for the doing of any waste or other cause of forfeiture, as their grantor or lessor might have had if such reversion had remained in such lessor or grantor.”

When the landlord had made a new lease to the second tenant he had no right to prosecute a suit for the possession of the premises or for the recovery of rent to accrue after the expiration of the former lease from the first tenant; that right was only in the second tenant, the appellee here. Gazzolo v. Chambers, 73 Ill. 75; Thomasson v. Wilson, 146 Ill. 384; Walsh v. Taylor, 142 Ill. App. 46. If the lease from the landlord to appellee had provided that the landlord should put appellee into possession then the remedy would have been reserved to the landlord to prosecute the suit for possession and to recover for double rental. Alexander v. Loeb, 230 Ill. 454.

The landlord in the present case had no right of action against appellant for holding over into the new term, and under the terms of the new lease the appellee owed the landlord a monthly rental of $100 from May 1, 1905, although he could not obtain possession of the premises because of the wilful withholding of them by appellant. If the lease to appellee was a grant, and if the appellee is a grantee of the landlord, then by virtue of section 14, the right accrues to the appellee to maintain his action for double rent against the prior tenant who wilfully held over after demand made in writing. Bouvier’s Law Dictionary defines the word ‘ ‘ grantee ” as ‘ ‘ He to whom a grant is made, ’ ’ and “grant” as “A generic term applicable to all transfers of real property” * * * “This word is taken largely where anything is granted or passed from one (the grantor) to another (the grantee), and in this sense it doth comprehend feoffment, bargains and sales, gifts, leases, charges and the like; for he that doth give or sell doth grant also * * * and so some grants are of the land or soil itself; and some are of some profit to be taken out of, or from the soil, as rent, common, etc.; and some are of goods and chattels ; and some are of other things as authorities, elections, etc. Shepp. Touchst. 228. ”

The appellee was a grantee of the landlord and by section 14 ‘ ‘ The grantees of any demised lands, * * * shall have the same remedies by entry, action or otherwise * * * for the recovery of any rent as the grantor or lessor might have had.” Walsh v. Taylor, 142 Ill. App. 46. We are of the opinion that a reasonable construction of sections 2 and 14 gives the right to the second tenant to maintain a suit for double the rental value against a prior tenant wilfully holding over, and that the trial court correctly rendered judgment against appellant for double the rental value of the demised premises between the time of serving notice and of the surrender of the premises.

The judgment is affirmed.

Affirmed.


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    Frank T. Miller, Administrator, Appellant, v. I. C. Pinkney et al., Appellees.
    Gen. No. 5491.
    Administration of estates—when administrator may recover sum received in settlement of action for causing death of intestate. Attorneys who have prosecuted an action to recover for the death of an administrator’s intestate, upon compromising such action should not undertake to distribute the proceeds recovered but should turn the same over to the administrator for distribution by him. If such attorneys do make a distribution and it appears not to have been such a distribution as should have been made, the administrator may recover the full amount obtained in compromise, and such attorneys must seek their relief by appropriate order in the probate court.
    Assumpsit. Appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding. Heard in this court at the April term, 1911.
    Reversed with judgment here.
    Opinion filed October 13, 1911.
    John S. Stevens and John M. Elliott, for appellant.
    Winslow Evans, for appellees.
   Mr. Presiding Justice George W. Thompson

delivered the opinion of the court.

This suit was begun in September, 1909, by Prank T. Miller, administrator of the estate of Morris C. Keliher, deceased, against I. C. Pinkney and W. G. Mc-Eoberts, partners, to recover the sum of $1,000 received by them on the settlement of a suit against tbe Peoria Gas and Electric Company in which Frank T. Miller, administrator, etc., was plaintiff. The declaration alleges that the defendants were the attorneys for the plaintiff to recover damages from the Peoria Gas and Electric Company for negligently causing the death of plaintiff’s intestate, and that .the defendants settled and compromised said proceedings and received the sum of $1000 and so became indebted to the plaintiff; it also contains the common counts. The plea was the general issue. The case was tried by the court without a jury and judgment rendered in favor of plaintiff for $1 from which judgment the plaintiff appeals.

The record shows that Morris C. Keliher was killed by an electric wire of the Peoria Gas and Electric Company. The deceased was unmarried and left surviving him neither father nor mother but three brothers and five sisters all non-residents of Illinois. Prank T. Miller, public administrator, was in June, 1905, appointed administrator of the estate of the deceased and a suit was brought by S. C. Pinkney and W. G. McRoberts, a law firm doing business as Pinkney & McRoberts, in the name of the administrator of the deceased against the Peoria Gas and Electric Company to recover damages for'the benefit of the next of kin for the wrongful death of the decedent. The amended declaration in that case, filed in November, 1905, alleged the names of seven of the next of kin and that of them Elizabeth Keliher, Eugenia Keliher and Ida May Keliher have been and are by the death of Morris C. Keliher deprived of their means of support. Prank Keliher, one of the next of kin, died in April, 1906, un married. In January, 1908, a settlement was made out of court by Pinkney & McEoberts with the consent of Elizabeth Keliher, one of the next of kin. Pinkney & McEoberts received $1000 in the settlement and after deducting $100 for their services as attorneys and paying $1-9.28 costs, paid the balance in their hands to Elizabeth Keliher and dismissed the suit in June, 1908. The settlement with the Gas and Electric Company, the payment of the money and the dismissal of the suit were without the knowledge or consent of either the administrator or the prohate court. The public administrator is unable to secure his discharge as such administrator and has not received any of the proceeds of the settlement nor any receipts or vouchers or any accounting from the parties, except statements made by Pinkney that the proceeds had been turned over to the next of kin. The administrator as soon as he learned of the settlement offered to relinquish all claim for commissions and endeavored to secure through Pinkney & McEoberts final receipts from the next of kin with a waiver of notice and entry of appearance of the next of kin and made repeated efforts to have the defendants get the consent of the next of kin of the deceased that he might procure his discharge as such administrator. Pinkney & McEoberts took the position and still contend that they represented the heirs, and that they had the right to settle the suit and pay over the money without the consent or approval of the administrator or the probate court, and that such officials have no concern in the settlement of the suit or distribution of the proceeds of such suit.

A proceeding to recover compensation for causing death by a wrongful act, neglect or default can only be maintained by virtue of the statute. The act providing for such compensation for the next of kin was passed in 1853, and has remained without anv material change to the present time (Session Laws, 1853, p. 97; Stan- and Curtis's Statutes and Plurd’s Statutes, Chapter 70.) The act provides that the action shall be brought by the personal representatives “and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin, in the proportion provided by law in relation •to the distribution of personal property left by persons dying intestate.” This act was construed in City of Chicago v. Major, 18 Ill. 349. The evidence shows that the only next of kin of the deceased were his brothers and sisters. They are each entitled to an equal share of the amount recovered after the payment of the costs and expenses. If the brother who died subsequent to the bringing of the suit, died unmarried and intestate and left no children or debts then his share would descend to his brothers and sisters. The appellant as administrator gave a bond for the performance of his duty. He as such administrator was the only party in whose name the suit could be maintained and had the right to control the disposition of the suit, Washington v. L. & N. Ry. Co., 136 Ill. 49. Where pending the suit a settlement was made it is the duty of the administrator to see that the proceeds of such settlement are placed in the hands of the parties who are lawfully entitled to them. Perry v. Carmichael, 95 Ill. 519. It was the province of the Probate Court to apportion the amount recovered amongst the parties entitled thereto on proper notice to the parties interested. B. &. O. S. W. Ry. Co. v. Then, 159 Ill. 535.

On the trial of the case the defendants offered in evidence a receipt for $850.72 to Pinkney & McBoberts dated March 31, 1910, purporting to be signed at Los Angeles, California, by Ida Marv Keliher and Elizabeth Keliher but not by any of the other next of kin. The declaration against the Gas and Electric Co. alleged that the next of kin were his brothers, Prank Keliher and Sylvester Keliher, and his sisters, Mary E. Bow nee Keliher, Elizabeth Keliher, Alice Keliher, Eugenia Keliher and Ida Mary Keliher. In the deposition of Elizabeth Keliher taken in this cause it is shown that there is another brother, ■ George Keliher, that the defendants in this case did not know of when the settlement was made with the Gas and Electric Company. It is clear that a distribution should only be made by the administrator after an adjudication by the probate court.

The defendants in making the settlement without the consent of the administrator acted illegally. There appears to have been the consent of only two of the next of Mn to the settlement. What may be the effect if the others, next of Mn, object to the settlement is not before us. Although it is contended that the others have consented that the proceeds should be paid to three of the sisters, there is no competent proof on that question. If some of the next of kin and the attorneys in a ease may act as the defendants have in this case, and not be liable to the administrator who must render an account to the probate, court and pay the proceeds as ordered by that court, then grave abuses and illegal practices would result, and no responsible party would venture to act as an administrator or go on an administrator’s bond. It is clear that these defendants must pay the money received on the settlement to the administrator, and the defendants must obtain relief from the position in which they have placed themselves by some proper order in the probate court, so far, if at all, as it may appear that they are lawfully entitled to relief. The judgment will be reversed, and judgment will be entered in this court in favor of the appellant against the appellees for $1000 with costs.

Reversed with judgment in this court.

Finding of facts to be incorporated in the judgment: We find from the evidence that I. C. Pinkney and. W. Gr. McRoberts, partners as Pinkney & McRoberts, appellees herein, are justly indebted to Frank T. Miller, as administrator of the estate of Morris C. Keliher, deceased, appellant herein, in the sum of $1000 for moneys collected for appellant as his attorneys, and that appellees were so indebted to appellant when appellant began this suit against appellees in the court below.


text:
    Cora L. Cooper, Appellee, v. Kankakee Electric Light Company et al., Appellants.
    Gen. No. 5495.
    1. Measure of damages—in action for injury to real property. For injury to xwoperty, such as a house that may readily be repaired or reproduced, the measure of recovery has been held to be the cost of repairing together with the value of its use while that was being done.
    2. Instructions—propriety of reference to declaration. While the practice of referring the jury to the declaration has frequently been eriticked, yet it is not reversible error.
    3. Instructions—when not error to refuse to direct verdict upon particular count. Where there is one good count which there is evidence to sirpport, it is not reversible error to deny a motion to take from the jury counts which there is no evidence to support.
    4. Instructions—effect of modification' malcing instructions applicable to other defendant. An instruction asked by one defendant is not erroneously modified where the modification merely makes the instruction applicable to another defendant in the case.
    Action in case. Appeal from the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    Statement by the Court. Cora L. Cooper brought her action in case against the Kankakee Electric Light Company and the Eastern Illinois Independent Telephone Company to recover damages for the partial destruction of the residence and household goods of the plaintiff by fire. The first count of the declaration avers that the electric light company maintained a plant which produced a current of electricity capable of starting a fire and was in the possession and control of divers poles and other devices for the transportation and delivery of an electric current from its plant to the various portions of the city of Kankakee; that the. telephone company was in possession and control of a telephone exchange together with poles and appliances essential to a telephone service in the city of Kankakee; and that the defendants were in the joint possession of certain other poles and fixtures in a certain alley, which said poles carried and had connected therewith wires of each of the defendants; that the wires of the telephone company were connected with the residence of the plaintiff; that the defendants negligently permitted their wires to be without proper or sufficient insulation and thereby the electric current of the electric light company escaped to and was conveyed over the wires of the telephone company to the building of the plaintiff, setting fire to it, etc. The negligence averred in the other counts is: in the second, that the wires of both defendants were attached to the same poles; that the telephone wires were small and easily broken and the breaking thereof was a common . occurrence; that the telephone wires were immediately above the electric light wires and that the defendants were negligent in failing to provide guard wires or other devices to prevent the wires of the telephone company from coming in contact with the electric light wires, etc.; in the third count that the defendants were negligent in permitting their wires to be in close proximity; in the fourth, that the defendants were negligent in permitting the telephone wires, which easily and often were broken, to be suspended above the electric light wires, etc.; in the fifth that the defendants failed to provide circuit breakers or other devices; and in the seventh, that the defendants negligently failed to discover the escape of the electric current of the electric light company over the wires of the telephone company for more than an hour after the current had commenced to escape over said wires. The general issue was filed to the foregoing counts. Two trials were had before a jury. At the first trial a verdict was returned for $2600 in favor of the plaintiff; a new trial was granted and on a second trial a verdict for $2500 was returned on which judgment was rendered and both defendants appeal.

      Small & Merrill, Dyer & Whittemore and Hunter & Schneider, for appellants.
    Cooper & Hobbie, for appellee.
   Mr. Presiding Justice George W. Thompson

delivered the opinion of the court.

It is contended ,it was not established by a preponderance of the evidence that the origin of the fire by which appellee’s residence was destroyed was caused by electricity escaping from the electric light wires of the electric light company over the wires of the telephone company connected with appellee’s residence. It is conceded by appellants that they had joint poles, upon which their wires were supported in the alley in the rear of the appellee’s residence, and that some of the wires of the electric light company carried a current as high as three thousand volts; that the wires of the telephone company supported by the poles and cross arms were uncovered and uninsulated except where attached to the cross arms and the residence of appellee, and that the telephone wires were above the electric light wires. The evidence shows that the fire occurred in the early morning before daylight, and that after the fire a wire of the telephone company was found broken, with one end of the broken wire hanging across an electric light wire in the alley from four to seven hundred feet from appellee’s residence; that there were two wires of the telephone company connected with the appellee’s residence on the south side of the house near the southeast corner below the eaves, and that they ran down the side of the house about a foot apart to the base board, then west on the base board three or four feet to a basement window, then into the basement; and that there were ho other wires up and down on the south side of the house, and there was no lightning arrester connected with the telephone wires at appellee’s house.

There is evidence showing that shortly before the fire the electric current was escaping in the alley from the electric light wires, near where the telephone wire was broken, and that one end of the broken telephone wire was looped over other wires so that it could swing-back and forth and that there was a high wind that night; and that there was no fuse in the telephone wire between where the broken wire was looped over other wires and the appellee’s residence. The evidence also shows that about midnight there was some trouble with appellee’s telephone; that it was making a buzzing-noise so that it awoke appellee’s husband in an upper room, and that when he tried to answer over the telephone it was “dead”; that the wires of the electric light company were insulated by a covering, but three of them had been in use four or five years and subject to deterioration by the weather. The evidence of N. W. Grinnell, the witness who first discovered the fire, is that he was sleeping in a room in a house six feet from the Cooper residence on the side next to it, and that he was awakened by the light from the fire; that the fire was at the southeast corner of the Cooper home; that he “looked right down on the fire right over it,” “it was from the sill up and was very near to the roof but not quite and was about two feet wide;” “it was right along- the wires; the insulation on the wires was on fire and the siding was on fire;” the fire was not inside the house, “it was just on the outside.” Two other witnesses, George Sanford and George Cooper, testified substantially the same as to the location of the fire when it was discovered. George Cooper who is the husband of appellee also testified that he went through the house at that time and there was no fire inside the house. It was not necessary for the appellee to show the exact manner or point at which the electric current escaped from the electric light company wires to the wires of the telephone company or the precise place where the fire started. It is sufficient on that subject if the circumstances show that electricity did escape from the wires of the electric light company to the wires of the telephone company and that the fire was started by electricity conveyed to the house over the wires of the telephone company. That a very powerful current did so escape from the wires of the electric light company to the wires of the telephone company that night is proven by other facts in evidence. While appellants undertook to prove theoretically by experts that the fire could not have been started as alleged, yet theories must give way when uncontroverted facts show that the theories are at variance with the facts. The jury were justified in finding from the evidence that the fire was started by the electric current as charged and that there was joint negligence proved against both appellants, either in having light, easily broken wires, which often did break, suspended above the wires of the electric light company carrying such a high potential current, or because there were not proper guards to prevent the upper wires when broken from coming in contact with the lower wires, or in not having an automatic circuit breaker which would have cut off the electric light current the moment a wire was grounded, or for any of the other matters constituting negligence alleged in the declaration which the evidence tended to prove, and which it is unnecessary to review in detail.

Appellants insist “that the plaintiff should not have been permitted to testify as to the rental value of her property, as the true measure of damages in a suit for injuries for a building is the cost of repairing and restoring the building to the condition it was in before the damage,” and rely upon FitzSimons v Braun, 199 Ill. 390 (94 Ill. App. 533) as authority for their contention. In that case the measure of damages is said to be the cost of restoring the house to its previous condition. The loss of the use of the building while being repaired was not claimed or referred to. The question of a recovery' for loss of rental was not involved; the injury there sued for did not prevent the use of the building while it was being repaired. It cites section 1018 of Sutherland on Damages as authority for the recovery of the cost of repairs. In this case the house was only partially destroyed, and was not and could not be used, while it was being repaired. For the injury to property, such as a house that may readily be repaired or reproduced, the measure of recovery has been held to be the cost of repairing it together with the value of its use while that was being done. 3 Sutherland on Damages, sec. 1018; 3 Sedgwick on Damages, sec. 944; 28 Am. and Eng. Encyc. of Law 607; Marks v. Culmer, 6 Utah 419; Baker v. Drake, 53 N. Y. 211.

It is also suggested, that after appellee had shown the rental valne of the premises, appellants should have been permitted to show that the repairing of the building was delayed for the purpose of effecting a settlement with an insurance company. The appellee after testifying that the rental value was $30 a month and that the house stood four or five weeks before anything could be done to it on account of the weather, was asked on cross-examination if a part of that time was not consumed in waiting for a settlement with the insurance company. The witness answered: “No, sir.” Appellee then objected to the question as immaterial; the court sustained the objection. Appellee did not move to exclude the answer, and the answer stood as evidence so that appellant had the benefit of the question and answer. While the question was proper and the objection should have been overruled, appellants were not harmed by the ruling.

Appellants insist there was error in giving the first and sixth instructions requested by appellee. The first instruction is:

“The Court instructs the jury that the questions involved herein as alleged in the plaintiff’s declaration, of negligence, if any, on the part of the defendant or defendants, and the exercise of reasonable care, if any, on the part of the plaintiff are what are known as questions of fact which it is the duty and province of the jury to determine under the law and the evidence in the case.”

The objection made to the instruction is that it does not call the jury’s attention to the fact that the jury must take the law as given by the court and that it refers the jury to the declaration to determine what the charges of negligence are. While the practice of referring the jury to the declaration has frequently been criticised yet it is not reversible error and this instruction has been approved in C. & J. Electric Ry. Co. v. Patton, 219 Ill. 214.

Instruction number six tells the jury that if the plaintiff has proved the allegations contained in one or more counts of her declaration by a preponderance of the evidence and her property was injured or destroyed as alleged by or through the negligence of the two defendants as alleged in either count of the declaration and the plaintiff was at all times in the exercise of reasonable care for the preservation of her property then the plaintiff is entitled to recover. Appellants urge that it was error to give this instruction, and to refuse a peremptory instruction directing a verdict for the appellants as to the seventh count for the reason that the seventh count does not state a cause of action. While the seventh count might have been held insufficient on a special- demurrer because of defectively stated facts by way of inference from conclusions, yet after verdict the proof is sufficient to sustain a judgment for the reason that the issue joined required proof of the facts imperfectly stated. C. & A. R. R. v. Clausen, 173 Ill. 100; Chicago v. Lonergan, 196 Ill. 518; Steiskal v. Field, 238 Ill. 92. While section 71 of the Practice Act provides that “If one or more of the counts in a declaration be faulty the defendant may apply to the court to instruct the jury to disregard such faulty count or counts,” yet section 78 provides that “Whenever an entire verdict shall he given on several counts, the same shall not be set aside or reversed on the ground of any defective count if one or more of the counts in the declaration be sufficient to sustain the verdict.’.’ Where there is one good count which there is evidence to support, it is not reversible error to deny a motion to take from the jury counts which there is no evidence to support. Scott v. Parlin and Orendorff Co., 245 Ill. 460, and cases cited.

Appellant, electric light company, requested an instruction :

“The law does not permit you to base a verdict upon speculation or mere conjecture, and if the plaintiff’s cause of action has not been made out by facts duly proven by a preponderance of the evidence, you should find the 'defendant, electric light company,' not guilty. ’ ’

The court modified this instruction by adding to it the words “and the defendant, Eastern Illinois Independent Telephone Company, not guilty.” This the electric light company urges was error. We are unable to see how the addition could prejudice appellant, electric light company. The instructions are the instructions of the court and not of the parties litigant.

Appellant, electric light company, insists that the court erroneously refused its fifth refused instruction. It is:

“You are instructed that if you believe from the evidence that the fire was caused by a defect in the wires on the premises of the plaintiff, and that the defendant, electric light company, did not install said wires upon said premises, you should find said electric light company not guilty. ’ ’

The wires were the wires of the appellant telephone company and may have been negligently installed by such company, yet the negligence of the electric light company in its method of placing its high potential power wires beneath the easily and frequently broken wires of the telephone company nngnarded and in permitting its electric current to escape was negligence which this instruction would remove from the consideration of the jury. It was properly refused. Number six was properly refused for the same reason. The seventh refused instruction of the electric light company was properly refused because of the argument contained in it, and all the law in it proper to be given was contained in the electric light company’s tenth and seventeenth instructions. After considering the numerous questions raised by appellants we find no error requiring a reversal. The judgment is affirmed.

Affirmed.


text:
    Edna Cutler Brown, Appellee, v. Harry H. Brown, Appellant.
    Gen. No. 5498.
    1. Divorce—what not condonation. Occupancy of the .same room by the parties will not effect a condonation if the marital relation was not resumed and there was no intention upon the part of the defendant to return and live with the complainant.
    2. Divorce—right of wife to establish residence. If a husband deserts his wife, she may acquire and fix a residence other than that of her husband.
    Divorce. Appeal from the Circuit Court of Warren county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    Hanley & Cox, for appellant.
    L. H. Hanna, for appellee.
   Mb. Presiding Justice George W. Thompson

delivered the opinion of the court.

This is a proceeding for divorce begun in the circuit court of Warren county, by appellee against appellant. Two issues are made by the amended hill and answer: first, was appellee and had she, for a year prior to filing her bill, been a resident of Warren county, Illinois ; second, was the appellant guilty of the charge of wilful desertion without any reasonable cause for the space of two years.

The evidence shows that appellee prior to her marriage resided in Warren county. The parties were married at Streator in 1903, and went to Brookside, California, to live near where appellant was interested in a bank. In the spring of 1908, the bank failed, appellant was angry at the family of appellee who appear to have been interested in the hank, and told her he was done with her and her family and left her and California on July 6, 1908, without telling her where he was going, and refused to give her any information as to where he was going. Tie never afterwards gave her his postofhce address or returned to her and appears to have instructed his attorneys not to give her his address. In March, 1909, appellee learned that appellant was at the Brown Palace Hotel in Denver, and went there to see him. He told her “ there was no place for her to live” and that he was going to Portland, Oregon, or Honduras to live and “there was no place for her.” Prom the time appellee was abandoned by appellant, she supported herself getting no assistance from her husband. It is claimed on the part of appellant that because appellee was at the Brown Palace Hotel, at which appellant was staying, for two days that the marital relations must have been resumed and that the desertion only runs from that time. Appellee testified that the relation of husband and wife was not resumed, and appellant appears to have been in court at the time of the trial but did not testify. Even if they had occupied the same room and he had no intention of returning to live with her such a fraudulent act on his part would not bar her right to a divorce, since condonation is upon an agreement that the party who forgives the other does so only upon the condition that the party forgiven will not repeat the offense but will perform all marital, duties the relation imposes. Kennedy v. Kennedy, 87 Ill. 250. The proof is very clear that there was more than two years’ desertion by appellant before the bill was filed and that appellee had endeavored to follow appellant and was very anxious to live with him but his desertion was continuous, persistent and wilful.

It is contended appellee is not a resident of Warren county, because appellant does not live there, and that appellee’s residence is where appellant’s is. Her home in California burned down in October, 1908. Monmouth, Illinois, had been her residence prior to her marriage. Her father and relatives lived at Monmouth, where her father died in July, 1909. In July 1909, appellee moved to Monmouth, -Illinois, with all her personal effects and took up her residence there with some relatives. It was the most natural thing for her to do to return to the home of her childhood; she not only returned and lived there more than a year before the bill was filed, but declared her intention of making her home there. While the husband has the right to fix the matrimonial home, yet when he deserts the home and the wife, then the domicile of the wife does not follow the husband nor does it necessarily remain where the desertion occurred, but she may remove to another state and acquire a new residence. Hill v. Hill, 166 Ill. 54; Derby v. Derby, 14 Ill. App. 645. The proof sustains the allegation of appellant that she had been a resident of Warren county for more than a year prior to filing her bill. The decree is affirmed.

Affirmed.


text:
    John McDonald, Appellee, v. Joliet Bridge & Iron Company, Appellant.
    Gen. No. 5500.
    Master and servant—duty to furnish appliances. The master is only obligated to exercise ordinary care to furnifh reasonably safe appliances and he is not liable for an injury resulting from a hidden defect in an appliance which ordinary care and prudence would not have discovered.
    Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Drank L. Hooter, Judge, presiding. Heard in this court at the April term, 1911.
    Reversed and remanded.
    Opinion filed October 13, 1911.
    J. L. O’Donnell, T. F. Donovan and J. A. Brat, for appellant.
    John W. D’Arct, for appellee.
   Me. Pbesiding Justice Gteorge W. Thompson

delivered the opinión of the conrt.

This is an appeal by the Joliet Bridge & Iron Company from a judgment of the circuit conrt of Will county for $10,000 in favor of John McDonald for personal injuries received while in the employ of appellant.

Appellee was assisting in raising and placing in position what is called a “batter post” in the steel frame of a building. This post was twelve feet long and weighed about two tons and corresponds to the lower part of a rafter of a frame building. The lower part of this post when in place would rest on a post at the southwest corner of the building. The post it rests on is twenty-two feet high, is built up of iron and has on the top an iron plate about three feet square with attachments to support and hold the lower end of the batter post together with the plate or chord of the building. The batter post extends upwards at an angle of forty-five degrees to the top of another post nine feet above and east of the plate. There were iron extensions at each end of the batter post called lugs which fit into jaws or spaces for them, and holes were drilled in the lugs by which the batter post was to be securely riveted to the iron it was to be attached to. This batter post was the last piece of the iron framework of the building to be placed in position. Owing to the location of certain columns, this batter post could not be placed in position with the steam crane and a platform was built inside the building on which a hand derrick equipped with ropes and pulleys was set up to lift the batter post into place from the platform where it had been placed by the crane. The batter post was raised and suspended on the derrick by an inch rope but was not placed in position before dinner time; after dinner when the men were working to get it in place the post slipped off the corner post on which one end rested and falling with a jerk broke the rope and crashed to the ground. Appellee, before the post fell, was standing on a narrow ledge of the plate west of the post steadying himself with his left hand on the post, and using a pinch-bar with his right hand to pinch the post into place. "When the post fell, he lost his balance and fell upon the batter post on the ground, breaking an arm and a leg.

Appellee’s contention is that the rope was not strong enough and that it had been left exposed to the weather and had become wet and was partly rotted; while appellee contends that the batter post did not fall because of any defect in the rope but by the post slipping off the plate, and that it was the sudden jerk that broke the rope which was otherwise sufficient, and that appellee with his pinch-bar, or a fellow servant with a pinch-bar, who stood opposite to appellee, pinched the post off the plate, and therefore it was the negligence of appellee or his fellow servant that caused the injury. There is evidence tending to prove that what was done by the employes was by the direction of the foreman, but as the case must be reversed for error in instructions, we express no opinion concerning appellee’s right to recover or as to the amount of the judgment.

The third original count and the second additional count of the declaration each alleges that the defendant “negligently and wrongfully provided a hand windlass with rope attached thereto which was not reasonably safe for use in lifting the said structural iron into its position in the building” etc.

The sixth instruction told the jury that if they believed from the evidence that the plaintiff has proven the allegations contained in any of the counts by a preponderance of the evidence, and that plaintiff was in the exercise of reasonable care for his own safety and that such injury was caused by or through the negligence of defendant as alleged in any or either of said counts, and that such injury was not the result of an assumed risk or the negligence of a fellow-servant, then the plaintiff is entitled to recover.

This instruction states the duty of the master in regard to furnishing the employe with reasonably safe machinery, tools and appliances stronger than the law requires. “The master does not insure that the machinery, tools and appliances supplied by him to his servants shall be reasonably safe. The duty that he owes in this regard is personal, in the sense that it cannot be delegated to another so as to relieve the mas-1 ter from liability for negligence. All that the master is required to do is to exercise reasonable care and prudence in selecting and supplying what he requires in his business, such as every prudent man is expected to employ in providing himself with the conveniences of his occupation. (2 Cooley on Torts, 1141; Toledo, Wabash and Western Railway Co. v. Fredericks, 71 Ill. 294; Camp Point Mfg. Co. vs. Ballou, 71 id. 417; Chicago, Rock Island and Pacific Railroad Co. v. Lonergan, 118 id. 41; Weber Wagon Co. v. Kehl, 139 id. 644.) The rule well established by many decisions of this court is, that the law imposes upon the employer the obligation to use reasonable and ordinary care and diligence in providing suitable and safe machinery. The right to recover does not necessarily arise from the fact of an injury produced by some defect in the machinery or appliances employed in the master’s business, but it must also appear that the master has been guilty of negligence in respect to such machinery or appliances.” Orr v. Waterson, 228 Ill. 138. It may be that this rope was defective and that the appellant had no knowledge thereof, and would not have ascertained such defect by inspection and ordinary prudence. The appellant is not responsible for some hidden defect in the rope, which ordinary care and prudence would not have discovered, and yet under the instruction given the jury were authorized to find appellant responsible although it may have used ordinary care and prudence in selecting and using the rope. The instruction prescribing a higher degree-of liability than the law requires, the giving of it was reversible error. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.