text:
    Peter Eidem, Appellee, v. The Chicago, Rock Island & Pacific Railway Company, Appellant.
    Gen. No. 5374.
    1. Master and servant—duty of railroad company in carrying its servants. As between an employer and an employe, when the employe receives transportation as a part of his contract of em, ployment, the law requires no more than ordinary or reasonable care on the part of the employer.
    2. Negligence—effect of anti-speed ordinance. Ordinances regulating the speed of trains operate not only for the benefit- of the public generally but likewise for the benefit of servants of the railroad company.
    3. Contributory negligence-—what not as a matter of law. It is not negligence per se to get on or off a moving train; neither is it negligence per se to fail to stop, look and listen at an ordinary railroad crossing if the circumstances surrounding the accident are such as will excuse the person injured from the failure to look and listen; much less would it be negligence between a train and a depot.
    4. Verdicts—when excessive. Held, that a verdict for $23,000 rendered in an action on the case for personal injuries was under the evidence excessive.
    Action in case for personal injuries. Appeal from the Circuit Court of Rock Island county; the Hon. Emery C. Graves, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the April term, 1910.
    Affirmed on remittitur.

    Opinion filed October 18, 1910.
    Statement by the Court. This is an appeal by the Chicago, Bock Island and Pacific Railway Company from a judgment for the sum of $23,162.90 recovered by Peter Eidem, plaintiff, in the Circuit Court of Bock Island county for personal injuries averred to have been sustained by plaintiff because of the negligence of the defendant, while plaintiff was in the exercise of due care. There have been two trials in the Circuit Court. At the first trial in January, 1907, a verdict for $25,000 was returned in favor of plaintiff; he remitted $9,000 and judgment was rendered in his favor for $16,000 which on appeal was reversed in this court for error of law. Eidem v. Chicago, R. I. & P. Ry. Co., 144 Ill. App. 320. At the second trial in October, 1909, a verdict for $23,000 was returned on which, after a motion for a new trial had been overruled, judgment was rendered, and the defendant prosecutes this appeal.
    The pleadings are the same on this appeal as upon the former, except that plaintiff dismissed as to the first, third and fourth counts of the original declaration. The substance of the averment, of the second count of the declaration on which the trial was had is: that appellant operated a railroad through the cities of Bock Island and Moline and between said cities and the village of Silvis at which latter place appellant maintained a freight transfer warehouse; that appellee was at the time of the injury and for four months prior thereto in the employ of appellant at its transfer freight warehouse at Silvis as a handler of freight; that appellant in its contract of employment with appellee agreed to transport appellee to and from his said work to Moline, where he lived, and did transport him with other employes regularly; that the said railroad was a double track railroad; that appellant knowingly made it a practice not to stop its train at the respective places where appellee and his fellow employes were required to get off, but negligently slackened the speed of its train and required appellee and his fellow employes to leap therefrom, when said train was running at a speed of from two to ten miles an hour, and on the night of April 11, 1906, failed to stop its train, but required appellee to leap from the moving train in the darkness, and that appellee, in the exercise of due care, leaped from the train and unavoidably alighted upon another track of appellant between the track said train was running on and appellant’s depot, and that as appellee was crossing over said track without knowledge of the approach of another train appellant negligently and recklessly ran a locomotive engine in charge of its employes, not fellow employes of appellee, at a high and dangerous speed, to-wit, twenty-five miles an hour, striking appellee and injuring him so that he lost both legs above the knee, etc.
    The first additional count averred: that when the train stopped to enable appellee to alight he necessarily and unavoidably alighted upon another track of appellant between the train on which he was riding and the depot without knowledge of the approach of a locomotive, etc. The -second additional count averred an ordinance of'the city of Moline providing that no railroad company shall run a passenger train within the city at a greater speed than ten miles an hour, nor any other Tocomotive at. a greater speed than six miles an hour, and that the locomotive by which he was struck did not have a train attached and was running at an unlawful rate of speed. The third additional count resembles the second with the further averment of negligence in not complying with an ordinance requiring a bell to be rung. The remaining two counts are combinations of the preceding counts.
    Jackson, Hurst & Stafford and M. L. Bell, for appellant.
    Searle & Marshall, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court. .

The only contentions presented by appellant on this appeal are (1) that the verdict is against the weight of the evidence, (2) that there is no evidence that appellee was at the time of the accident in the exercise of due care, and (3) that the judgment is excessive. It is not claimed that there is any error of law on the last trial, except that it is insisted that a peremptory instruction to find for appellant should have been given.

It is contended on behalf of appellee that he, an employe, receiving as a part of his compensation transportation between his residence at Moline and his place of employment at Silvis, was a passenger and entitled to the same rights and high degree of care from appellant that are due to ordinary passengers. The rule is settled that, as between an employer and employe when the employe receives transportation as a part of his contract of employment, the law requires no more than ordinary or reasonable care on the part of the employer. Walsh v. Cullen, 235 Ill. 91; Chicago Terminal Transfer Co. v. O’Donnell, 213 Ill. 545. If the appellant was exercising ordinary care for the safety of appellee at the time he was injured, then the judgment cannot be sustained.

It is contended by appellant that as between it and its employes, it had the right to operate the road engine by which appellee was injured at any speed that it saw fit, and that the statute and municipal ordinances regulating the running of trains within the limits of the city of Moline are only for the protection of third parties. This court held otherwise in Cook v. C. R. I. & P. Ry. Co., 153 Ill. App. 596, and the Supreme Court refused to grant a certiorari in that case at the June term, 1910. Under the rule of law adopted in that case if the evidence shows that appellant ran its engine at a rate of speed prohibited by the city ordinance of the city of Moline, then a prima facie case of negligence on-the part of appellant was proved.

In the former opinion in this case in the review of the evidence it was said:

“The evidence shows that appellant operated a double track railroad running east and west through the city of Moline, the east bound track being next its depot. The space used for depot purposes consisted of a triangular strip of land extending from the east line of Thirteenth street to the west line of Fourteenth street in said city, a distance of 328.4 feet measured along the east bound track, which strip outside the building was paved with brick and used for station purposes. Standing thereon, with its west line 12.5 feet east of the east line of Thirteenth street, was the depot or station building 80.5 feet long and 26.77 feet wide and adjoining it on the east a baggage room, 24.2 feet long and 20.5 feet wide. Along the middle of the north side of the main part of the depot, extended- a wooden platform about 40 feet long with steps at each end leading to the pavement. In January, 1906, appellee who lived at Moline entered the service of appellant and worked from 1 p. m. to midnight daily as freight truckman at Silvis, some six miles east of Moline. A number of men who lived at Moline and other stations west worked at Silvis, and appellant ran a train consisting of a switch engine and one passenger car from some point west of Moline to Silvis and back, to carry these laborers to and from their homes. At one o ’clock a. m. on April 11,1906, appellee with fifteen or twenty other workmen left Silvis on this work train which proceeded to Moline on appellant’s west bound track. When it was between Fifteenth and Fourteenth streets, appellee went to the front platform, and between Fourteenth and Thirteenth street stepped or jumped from the lower step and was struck by a road engine running east on the east bound track.

“Appellee testified that he went out on the platform when the train was between Fourteenth and Fifteenth streets and stayed there until they were opposite the depot, when he got off. Just as he stepped on the track he saw the light of the approaching road engine about ten or fifteen feet away but did not hear the bell ring at any time. The head light was not bright but reddish or yellow and the place where he stepped off was directly in front of the steps which go into the depot. On cross examination, he stated that he was the first one out of the car and that he stood on the step and did not look. He did not know whether a train was coming or not. He thought if he had stuck his head out he could have seen. When he got off he did not look to see if, anything was coming. The work train was moving when he got off and he did not think of such a thing as a train coming in there and did not pay any special attention to anything but getting off. He had plenty of time to look if he had thought a train was coming. He never knew the train to stop when he got off. They always got off before it stopped. Henry Maudee, who' also worked at Silvis for appellant, and who was on the work train at the time of the accident standing directly behind appellee on the platform when he alighted from the car, testified that the custom was not to stop this work train when the men got off. At the time of the accident it was going at about two miles per hour. He did not hear a whistle sound or a hell ring on the road engine. Maudee said that appellee at the time he was struck was right opposite the steps on the east side of the depot. In his judgment the road engine was going at from ten to fifteen miles per hour and had a red or yellow head light, which in his judgment was an oil light. When appellee was struck he was opposite the main door of the depot and when he was picked up he was four or five feet east of the baggage room. John Peacock testified that he went to the scene of the accident, where his attention was called to one of appellee’s feet wedged in the rail about five or ten feet east of the baggage room. Swan Larson, a patrolman at Moline, testified that he went to the scene of the accident and saw appellee’s foot squeezed in between the rail and plank ten or fifteen feet east of the east end of the depot. Robert Carlson, employed by appellant at Silvis and on the work-train at the time of the accident, testified that sometimes the train would stop when it reached the station at Moline and sometimes it would not. He thought the train had stopped when appellee stepped off. The engine that struck him-was going at the rate of from ten to fifteen miles per hour. He did not think the whistle was blowing. The engine had a light which he knew was not an electric light. Dale Bird, employed at Silvis by appellant and on the work-train at the time of the accident, testified that sometimes the train would stop at the Moline depot and sometimes it would not. The engine that hit appellee was going at the rate of from fifteen to twenty miles per hour and the work-train stopped as it passed. Appellee was about opposite the northeast corner of the baggage room after he was struck. Witness did not hear the bell on either engine and did not know whether the whistle on either engine was blown. Richard Thomas, fireman on the road engine, testified that their engine was going about four miles per hour and that its bell was ringing when it passed through Moline. When it stopped the tender was opposite where appellee’s legs were cut off, just ninety-two feet from the west edge of Fourteenth street. The work train was going about as fast as their engine when appellee got off. On cross-examination he testified that the engine had an electric light and that he first saw the cár of the work train when the road engine was just east of Thirteenth street. The switch engine was crossing Fifteenth street when he first saw it. The whistle of the road engine was not blown then because there was no reason for it. He thought they had plenty of time to meet the switch engine before it reached the depot. They passed about 100 feet east of the depot and the road engine stopped in about sixty-eight feet. When it stopped it was ninety-two feet from the west line of Fourteenth street. Appellee was struck 117 feet east of the east end of the baggage room. Henry Gfeisenhagen, engineer on the road engine, testified that the engine had an electric headlight and that it was lighted that night. It also had an automatic bell ringer and the bell was ringing when they passed through Moline. He first saw the switch engine when it was near Fifteenth street. His engine was going four or five miles per hour and the switch engine about as fast. He stopped his engine about seventy or eighty feet from Fourteenth street after appellee was struck. The road engine did not come between the work-train and the depot, and the train was not at the depot at the same time as the road engine. The work-train stopped close to Thirteenth street. James Hughes, fireman on the switch engine, testified that the road engine had an electric headlight, and was going about five miles per hour. He did not remember any nights that they had not stopped at Moline depot. He heard the bell on the road engine ring and said that appellee was about eighty feet from the depot when he was struck. The switch engine stopped so that the pilot was even with the baggage room and as the cabs of the engines passed they were about thirty feet east of -the baggage room. Fred Shaw, engineer on the switch engine, testified that the engines passed about sixty feet east of the baggage room. The work train was going about four miles per hour. The bell on the road engine was ringing. He helped to take appellee’s foot from the track where it was wedged in, ninety-two feet from Fourteenth street. There was no night when they did not stop at Thirteenth street, and they always came to a full stop at the depot. August Sandberg, employed by appellant at Silvis and on the work train at the time of the accident, testified that the train always stopped at Moline. He judged it was going four or five miles' per hour at the time of the accident. Frank Strong, switchman in charge of the train crew on the work-train, testified that the road engine had an electric head light, and that he saw appellee’s legs wedged in next the rail about eighty-five feet from the east end of the baggage room. He did not hear the whistle or bell on the road engine. Oscar E. Samuels, employed by appellant at Silvis, and on the work-train at the time of .the accident, testified that it was the custom to come to a full stop at Moline. The road engine had a bright light and the work-train was going about three or four miles per hour. It always came to a full stop at the depot at Moline whether the men got off or not. He judged the road engine was going not over four miles per hour, and he did not hear the bell or the whistle. Henry Grlick, switchman of the train crew of the work-train" at the time of the accident, testified that the work-train stopped east of the depot. The road engine had an electric headlight and was not going more than four or five miles per hour. The work-train passed the road engine east of the depot seventy-five or eighty feet, and always came to a full stop at Mo-line. The men were in the habit of getting off before the train stopped every night and he had warned them not to do this. Appellee testified in rebuttal that he never was warned and never heard any such warning given. ’ ’

All the witnesses who testified at the former trial testified to substantially the same facts on the last trial, except Dale Baird and Henry Geisenhagen who did not testify at the last trial, and appellee had only one new witness—Paul A. Biggs. He testified that he was night ticket ag-ent for appellant, and was on duty at the Moline depot at the time of the accident; that he saw the road engine at Thirteenth street approaching from the west and at -the same time saw the engine and car from the east just pulling into the station; that the engine from the east was opposite the center of the depot when the engine was approaching from the west; that the engine attached to the car pulled ten or twelve feet west of the office; that he learned a man had been struck and saw the body lying about fifteen or twenty feet from the west end of the coach even with the east end of the baggage room; that a leg was nearly even with the end of the baggage room and that there was nothing to prevent the view of a person getting off the train from seeing the engine.

The evidence of Biggs tends to establish the fact that the work train was in front of the depot before the road engine passed between the train and the depot. The evidence is in sharp conflict as to whether the road engine was running slowly or rapidly, under or above the rate of speed prescribed by the ordinance, and whether the bell of the road engine was ringing or not as it approached and passed the work train. Five witnesses testify the road engine was not running-faster than from two to six miles an hour, when it passed the depot, while the appellee and one other witness testified it was running from fifteen to twenty miles an hour, and the greater number of witnesses give as a reason for the engine running very slowly the fact that there was a red light in the street at Thirteenth street and because of the curve in the track appeared to be a railroad danger signal to the road engine approaching from the west. The distance the road .engine went after striking appellee also tends to prove that it was going very slow at the time. A preponderance of the evidence seems to show that the engine was not exceeding the speed permitted by the ordinance.

There is a direct conflict in the evidence also as to where the accident occurred. Appellee and Maudee located the place as in front of the depot. Biggs puts it opposite the east end of the baggage room, and two other witnesses say one of appellee’s feet was wedged in the rail ten or fifteen feet east of the baggage room. Thomas, the fireman on the road engine, testified that he saw appellee leap from the train in' front of the engine and he notified the engineer to stop the engine and when it stopped appellee was right behind the tender and that his limbs were there and that the hind end of the tender was 92 feet west of Fourteenth street and 117 feet east of the baggage room door. Hughes, Strong, Shaw and (Hick testified to the same locality as Thomas. If it he the fact that appellee got off the train when it was in motion and when the front end of the car was midway between Fourteenth street and the depot, then it was not negligence for the road engine to pass the running train at that place, and appellee is not entitled to recover. A box car had been used at one time to carry the men back and forth, but for some time before the accident a passenger coach had been used. Appellee testified that the train was running when he got off and that the train only slowed down but never came to a stop after the coach was used to carry the men back and forth, yet the evidence fails to establish the averment that appellant compelled appellee to alight from the train before it stopped. The great preponderance of the evidence is that the train always stopped at the depot for the men to get off and that many of the men were in the habit of getting off the work-train before it came to a full stop. It is a question of fact upon which the evidence is conflicting whether appellee got off the car in front of the depot or before it reached the depot, although it was on depot ground that he alighted according to the contention of appellant. The proof showed that he lived west of the depot, from which an inference arises that he would no.t be apt to alight before he reached the depot. It is a question of fact upon which reasonable men may differ whether it was negligence in the appellant to run an engine between a depot and a work-train from which men were alighting from a slowly moving train, and we cannot say as a matter of law that such act was not negligence on the part of appellant.

It is insisted the proof shows that appellee was not in the exercise of due care, which was necessary to sustain the verdict. Appellee testifies that he stood on the lower step. “I looked just in the direction I was going. I stood there and looked southwest from that point.” “I was going to go that way.”" Q. “Now you didn’t look east to see if anything was coming?” Answer: “No, I don’t think I did.” Q. “And you didn’t look west to see if anything was coming?” Answer: “The way I stood there I could see partly west from the place where I was.” Q. “Now do you mean to say that you looked down the track to the west?” Answer: “No sir, I didn’t stretch out and look, I didn’t do that, hut I could see anyways, the way I was standing.” Q. “Can you see down that track from the car as far down as Thirteenth street?” Answer: “Yes sir, I saw that far that night. I could see that far from where I stood that night, I was looking that way.” He testified also that he was looking on the ground to see if it was safe and then took two steps without looking, then he saw the headlight and the engine was upon him.

It is not negligence per se to get on or off a moving train (C. & A. Ry. Co. v. Byrum, 153 Ill. 131; C. & E. I. Ry. Co. v. Storment, 190 Ill. 42), neither is it negligence per se to fail to stop, look and listen -at an ordinary railroad crossing if the circumstances surrounding the accident are such as will excuse the person injured from a failure to look and listen; much less would it be negligence between a train and a depot. Henry v. C. C. C. & St. L. R. R. Co., 236 Ill. 219.

On a consideration of all the evidence in the record we conclude that a jury might find either that appellee was or was not in the exercise of due care. Seasonable men might find either way, and with evidence in that situation we would not be justified in disturbing the conclusion of the jury.

It is also urged that the judgment is excessive. The appellee is an unskilled laborer earning $1.65 per day. He has lost both legs but has since the injury used artificial limbs at times and at others short wooden stumps and crutches. After the first judgment he remitted down to $16,000. He is entitled to compensation. The interest at five per cent on the amount of the judgment would produce an annuity of two and one-half times his earnings and give him the $23,000 besides. The judgment should be reduced to $17,000. He would then have an annuity much in excess of his earnings before he was injured, have the principal sum also and he still has some earning capacity. If he will remit to $17,000 the judgment will be affirmed at the costs of appellee; otherwise it will be reversed and remanded because of the excessive damages.

Affirmed on remittitur.

Appellee having filed a remittitur herein of that part of the judgment in excess of $17,000 the judgment is therefore affirmed in the sum of $17,000 at the cost of appellee.


source: Caselaw Access Project

author: Mr. Justice Thompson

license: Public Domain

text:
    Mrs. C. Lanser, Appellee, v. N. M. Fidler, Appellant.
    Gen. No. 5377.
    1. Pleading—when recovery can he had under common counts. Where all that remains to be done under a contract is that one party thereto shall pay money provided by such contract to be paid, a recovery - may be had under the common counts.
    2. Statute of Frauds—when defense of, comes too late. Where the common counts solely are filed no plea of the Statute of Frauds is required, but, in some manner, the defense of the Statute of Frauds must appear to have been interposed in the trial court; otherwise it will not be regarded on appeal.
    3. Appeals and errors—abandonment of theory. A trial cannot be conducted upon one theory and a claim for reversal predicated upon another.
    Assumpsit. Appeal from the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding.
    Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Frank G. Plain, for appellant.
    B. P. Alschuler, for appellee; C. H. Darling and R. C. Putnam, of counsel.
   Mr. Justice Thompson

delivered the opinion of the court.

Mrs. C. Lanser brought this suit in assumpsit against N. M. Fidler and filed a declaration containing only the common counts with a copy of the contract sued on, and a general form of account stated attached to the declaration. The defendant pleaded the general issue. There was a trial by jury, and verdict for plaintiff for $3,433.46 on which judgment was rendered. The defendant brings the case to this court by appeal.

The evidence shows that the appellee is an elderly, uneducated German, who can neither read nor speak English. She had bought a boarding house and some lots on a contract. There remained unpaid on the boarding house $1,300 and $400 on the lots. Appellee early in 1909, desired to sell the hoarding house, and spoke to appellant, who is a grocer, about it. He undertook to sell it for her but not finding a purchaser, he proposed a trade. She declined to trade but fixed a price on the boarding house, vacant lots and furniture, and appellant agreed to buy her interest. They went to the office of Janies Powell to have him draw up a memorandum of the agreement. He drew up and they signed the following agreement:

“Aurora, Illinois, March 22, 1909. Agreement between Johannon Lanser to N. M. Fidler. Price of boarding house $5500 with ten bedrooms, with furniture complete in the rooms. Downstairs; 9 chairs, a clock, stove, table * * *

Lots 27 and 28 in Block 8 Oak Park. N. M. Fidler is to assume $1,300 on building and $400 on lots 27 and 28; the difference is to be turned over in cash and mortgages and notes, to pay the balance in full.

Mrs. C. Lauses.

N. M. Fidler."

Appellee turned over to appellant the possession of the property April 17, 1909, with her contract, insurance policy and papers from Virg. Gray, and appellant has retained possession ever since. Appellant undertook to pay by turning over to appellee some worthless oil stock, an old judgment, a chattel mortgage made in 1905, which was past due, with a lot of accounts and small notes which appellant had taken from his customers and which he endorsed without recourse. These appellee refused to accept. Appellant tried in various ways to get these papers into appellee’s possession, and to get Powell, who was acting for appellee, to approve the so-called securities, but Powell refused to advise appellee to accept them. The evidence tends to show that appellant made an attempt to pay for the property he got from appellee by turning over to her apparently worthless papers.

It is insisted on behalf of appellant that there can be no recovery in this case on the contract of sale under the common counts; that there should have been a special count on the contract. The contract was fully performed on the part of appellee, and all that remained to be done was for appellant to pay; in such a case a recovery may be had under the common counts. McKinnie v. Lane, 230 Ill. 544.

It is also contended that the contract is within the statute of frauds and hence there could be no recovery. This question was not raised in the trial court. The appellant did not plead the statute neither did he ask any instructions except an instruction directing a verdict for him, which was refused, and an instruction which was given that if the jury believed that plaintiff accepted in payment of the property the notes, mortgages and stocks introduced in evidence, they must find in favor of the defendant. While it is -not necessary to plead the statute to a declaration consisting of the common counts, in order to set it up as a defense, yet it should appear somewhere in the record that the statute is relied on. The question not having-been raised in the trial court, it cannot be raised in the Appellate Court for the first time. Deniston v. Hoagland, 67 Ill. 265; Highley v. Metzger, 187 Ill. 237; Rozenski v. Dewes Brewery Co., 93 Ill. App. 370.

It is also contended that because the contract does not state how much was to be paid in money and how much in mortgages there can be no recovery for the sum to he paid. The contract states the consideration as $5,500 to be paid. The appellant’s theory was that he had paid by a tender of the so-called securities he offered in evidence. Appellant having tried the case on one theory may not abandon that theory now and try it here on some other theory. N. K. Fairbank Co. v. Nicholai, 167 Ill. 242; Miller’s Nat. Ins. Co. v. Jackson County Milling Co., 60 Ill. App. 224. Appellee was entitled to payment in good mortgages and cash. The jury found against appellant on his theory, and he cannot abandon the theory on which he tried the case and present a new one in this court.

It is also contended that the judgment is excessive to the amount of $83.21. After deducting the $1,700 which appellant was to assume from the $5,500 there would be a balance of $3,800 due appellee. Appellant testifies he paid a lumber bill of $127.06 for appellee to White and Todd; appellee testifies the bill was $110. Appellant testified that he also paid Komes a butcher bill of $100 for her, and that she got groceries on a due bill to the amount of $243.68. He also claims appellee owed him a grocery bill of $70 at the time of the trade; while she testifies she did not owe him anything. If the testimony of appellee be true he had paid $453.68 and the judgment should be for $3,346.32 besides allowing her interest from the time he got possession in April, 1909, to the date of the judgment, January 28, 1910; while if the evidence of appellant be true it is excessive to the amount claimed, if no interest is included, but interest at five per cent will exceed the amount claimed to be excessive. The jury passed on the credibility of the evidence and the trial court approved their verdict. We cannot say the verdict and judgment are not right. The judgment is affirmed.

Affirmed.


text:
    Roy Cady et al., Appellants, v. Mary S. Ridenour, Appellee.
    Gen. No. 5384.

      Accounting—between tenants in common. A bill in chancery may be maintained for an accounting for rents and profits by one tenant in common against his co-tenant who has taken and used more than his interest or proportion of the common property.
    Bill in chancery. Appeal from the Circuit Court of Henry county; the Hon. William H. Best, Judge, presiding.
    Heard in this court at the April term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.

      Statement Tby the Court. Henrietta Sherrill died May 3, 1904, intestate, seized of eighty acres of land in Henry county, leaving surviving her husband, William Sherrill, and Frances M. Bornes, Hester Frazier, Joseph McNay, Samuel McNay, McArthur McNay, Kearney McNay, her brothers and sisters, Boy Cady and Nellie Beimer, her nephew and niece, children of a deceased sister, and Mary S. Bidenour, her mother, but no children or descendants of any child surviving her. McArthur McNay died intestate seized of an adjoining eighty acres of land in February, 1907, unmarried, leaving no children or descendants of children, and the same heirs, his brothers, nephew, niece and mother, surviving him. Joseph McNay died in April, 1908, intestate and Annie McNay was appointed his executrix.
    On May 11, 1909, Boy Cady, Frances M. Bornes, Hester Frazier, Annie McNay, executrix, and Nellie Beimer filed a bill in chancery against Mary S. Biden-our setting up- the foregoing facts and alleging that the widower of Henrietta Sherrill, with the brothers and sisters of Henrietta Sherrill, became seized as tenants in common of the east half of the northwest quarter of section twenty in township fifteen north, range three east, Henry county, Illinois, and alleging the proportions they were respectively seized of, and that from February, 1907, until August 5, 1907, Mary S. Bidenour exercised control over said premises, a part or all of the time farming the same herself, and during all of said time she received all the rents, issues and profits from all said premises, and though often requested to account with the complainants, she refused and refuses to do so, and withholds from complainants their just proportion of the rents, issues and profits. The bill also makes similar allegations concerning the eighty acres of land of which McArthur McNay died seized and that Mary S. Bidenour took and had the exclusive management of such land from his death to May, 1908, and received all the rents, issues and profits, etc. The bill waives the oath to the answer and prays for an accounting concerning said rents and profits, etc.
    The defendant filed a general demurrer which was sustained, and complainants abiding by their bill; a decree was entered dismissing it at the costs of complainants. From that decree this appeal is prosecuted.
    Harry E. Brown, for appellants.
    Chester M. Turner, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

The only question presented by this appeal is whether a bill in chancery can be maintained for an accounting for rents and profits by one tenant in common against a tenant in common who has taken and used more than his interest or proportion of the common property.

Section 1 of chapter 2 of the Statute provides ‘ That where one or more joint tenants, tenants in common or co-parcener in real estate, or any interest therein, shall take and use the profits or benefits thereof, in greater proportion than his, her or their interest, such person or persons * * * shall acount therefor to his or their co-tenant, jointly or severally.” Section 18 of the same chapter provides: “In all cases commenced under the first, fourth and fifth enumerations of section 2 of this Act, the several courts of record in this state having chancery jurisdiction are empowered to hear, try and determine the same * * * and such as such courts sitting in chancery could lawfully make * * * and such courts shall render final judgment * * * and enforce such judgment or judgments by execution or in any other way in which courts sitting in chancery could enforce the same.”

Section 2 of the same chapter provides: “The action of account may be sustained: First by one joint tenant, tenant in common or co-parcener * * * against the other or others who receive as bailiffs more than his or their due proportion of the profits or benefits of such estate.”

The bill alleges that the defendant took control over all said premises, and received all the rents from said premises and a part or all the time farmed the premises herself. No question as to parties to this bill is presented by counsel for either party. The only points raised by appellees are that the bill does not allege either what the rental value of the land was, or that defendant refused to allow complainants to occupy the premises. The bill is very inartistically drawn and had the question now presented been raised by a special demurrer the defects would probably have been cured by amendment, but technical objections of that character cannot be raised by a general demurrer.

One tenant in common can maintain a bill in chancery against another for his proportion of the rents, when one tenant in common has either occupied or rented the entire premises. Statutes of Illinois, chapter, 2 secs. 1, 2 and 18; Crow v. Mark, 52 Ill. 332; Angelo v. Angelo, 146 Ill. 629; Wooley v. Schrader, 116 Ill. 29; McPharland v. Larkin, 155 Ill. 84; Dinsmoor v. Rowse, 211 Ill. 317.

The court erred in sustaining a general demurrer. The decree is reversed and the cause remanded with instructions to overrule "the demurrer.

Reversed and remanded with directions.


author: Mr. Justice Thompson Per Curiam.

text:
    Estate of Parker S. Kempton, deceased, Appellee, v. John Funk et al., Appellants.
    Gen. No. 5380.
    1. Administration of estates—when administrators properly removed. If administrators in obtaining their appointment have misrepresented or suppressed facts and have during their administration wasted the trust property, a removal predicated upon such grounds is proper and will Be sustained on review.

      2. Appeals astd errors—when assignments of error waived. Assignments of error urged but not argued are deemed to have been waived.
    Petition to revoke letters of administration. Appeal from the Circuit Court of Livingston county; the Hon. T. M. Harris, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Rehearing denied November 18, 1910.
    Chase Fowler, for appellant.
    White & Tuesburg, and Norton & Ortman, for appellee ; B. R. Thompson, guardian ad litem.

   Mr. Justice Thompson

delivered the opinion of the court.

Parker S. Kempton died February 27, 1899, intestate, in Livingston county, leaving a widow and two minor children. .On March 15, 1899, his widow, Lizzie Kempton, petitioned the County Court for letters of administration, and letters were granted to her. On April 11, 1899, the widow filed a petition showing to the court that she was unable to perform the duties of administrator alone and asking that her father, John Funk, be appointed co-administrator with her, and letters of administration were thereupon issued to John Funk. Thereafter much litigation resulted in the estate, the history of which may be found in Funk v. Kempton, 123 Ill. App. 100; Funk v. Kempton, 221 Ill. 436; Kempton v. Funk, 139 Ill. App. 387; Kempton v. People, 139 Ill. App. 563; Funk v. Kempton, 235 Ill. 280; Funk v. People, 157 Ill. App. 614, and the present case, which is an appeal from an order made by the Circuit Court removing said administrators, made on an appeal by the administrators from an order of the County Court removing them.

Kempton had been in the business of manufacturing-tile. After John Funk had been appointed co-administrator to assist his daughter, Mrs. Kempton, Funk disclosed to the court and to the creditors of Kempton that he claimed that he was a silent partner of Kemp-ton in the tile business and that the partnership was heavily indebted to him. His claims were such as would have absorbed the entire partnership estate leaving nothing from the business to pay the creditors of Kempton. The interest of Funic was adverse to the estate of Kempton, and the administrators have contended in the interest of Funk against paying anything to the creditors of the estate during the eleven years that have expired since the death of Kempton, as is evidenced by the cases cited above and the records in such cases. The administrators have persistently refused to defend against the claims of John Funk wherein he claimed that notes of Parker Kemp-ton signed by Funk with him given in the matter of the partnership, were the individual notes of Kempton and that he, Funk, was only a surety. Funk took possession of the books of the partnership which was conducted in the name of Parker Kempton and kept them from the knowledge and examination of the creditors of Kempton, who dealt with Kempton not knowing it was a partnership business. The administrators declined to plead the statute of limitations against the claims of Funk, but have endeavored to prefer Funk’s claims over the claims of creditors, by insisting that Funk could appropriate the partnership assets to pay his demands, and that the creditors of Funk must look to the individual assets of Kempton, although they had been wholly exhausted by the preferred claims; and nothing has yet been paid on any of the claims of seventh class creditors.

Section 26 of the administration act provides that the County Court shall revoke letters of administration, when the same are granted upon any false pretense whatever, and section 30 provides that the court may revoke letters of administration when the same were granted to persons who mismanage the estate and who conduct themselves in such manner as to endanger co-administrators or their sureties.

The trial court on the hearing found specifically that the administrators had concealed from the court the fact that Funk was a silent partner, and that he should not have been appointed for that reason (Howard v. Slagle, 52 Ill. 336), that the administrators have wasted and mismanaged the estate, reciting the specific facts wherein the estate was wasted and mismanaged; that the incapacity of Lizzie Kempton which existed when she petitioned for the appointment of a co-administrator still exists; that her acts have been subservient to the wishes of Funk, and that she was a party to all the acts of Funk. The findings comply with the requirements of the statute (Taylor v. Taylor, 154 Ill. App. 258), and are supported by the evidence.

We approve the order of removal, and the judgment is affirmed.

Affirmed.

Per Curiam.

On petition for a rehearing appellants complain that we failed to pass upon an assignment of error questioning the appointment of a guardian ad litem for certain minors and the allowance of a fee to such guardian. This assignment was not discussed nor even mentioned in the brief and argument filed by appellant. It was therefore waived.


author: Per Curiam.

text:
    Charles Ranney, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    1. Negligence—when acts constitute negligence. The alleged negligent act or omission must be the cause which produces the injury complained of, but it need not be the sole cause nor the last or nearest cause to constitute it the proximate cause of such injury.
    2. Negligence-—how question of proximate cause determined. Ordinarily, the question as to what is the proximate cause of the injury is one of fact to be determined by the jury.
    3. Master and servant—what not proximate cause of injury. Held, under the evidence that the intervening negligence of one whom the evidence tended to show was a vice principal was not the immediate and sole proximate cause of the injury.
    4. Master and servant—when doctrine of assumed risk does not apply. A servant cannot be held to have assumed the risk of injury from a danger not known to him which he is not shown to have had opportunity to observe and of which he was not informed by his master.
    5. Instructions—ignoring defenses. An instruction which directs a verdict for the plaintiff upon the finding of negligence is erroneous if it ignores affirmative defenses relied upon by the defendant which the evidence tends to establish.
    6. Instructions—argumentative in form. Instructions argumentative in form should not he given.
    Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the November term, 1909.
    Reversed and remanded.
    Opinion filed October 18, 1910.

      Patton & Patton, for appellant; Silas H. Strawn, of counsel.
    William St. J. Wines, for appellee.
   Per Curiam.

This is an action on the case by the plaintiff against the defendant to recover damages for personal injuries alleged to have been sustained through the negligence of the defendant as charged in the third amended and fifth counts of plaintiff’s declaration. A trial by jury in the Circuit Court of Sangamon county resulted in a verdict and judgment against the defendant for $3,500 from which judgment the defendant prosecutes this appeal.

The fifth count charges in substance that on December 6, 1908, the defendant was possessed of and was operating a certain coaling station on the line of its railroad, and that the plaintiff was in its employ in attending to the loading of certain elevators with coal, the filling of certain bins with coal after the same had been hoisted to said bins, and such other work and labor in and about said coaling station as he might be directed to perform; that in the discharge of his said duties it became necessary from time to time for the .plaintiff to ascend from the ground level to a certain landing a distance of about 60 feet, and that it was the custom of the defendant at such times to carry the plaintiff from the ground level to the said landing by means of certain cages or elevators; that it was the duty of the defendant to furnish the plaintiff a reasonably safe place in which to work, but the defendant not regarding such duty then and there negligently failed to furnish the plaintiff a reasonably safe place in which to work, in this, that it caused and permitted a certain timber to be erected and fastened across one of its elevator shafts during a temporary absence of the plaintiff from his said duties and.employment, whereby said elevator shaft was rendered a dangerous and unsafe place in which to work, which said condition was known or by the exercise of ordinary care on its part might have been known to the defendant, but was unknown and by the exercise of ordinary care on his part could. not have been known to the plaintiff; that the defendant then and there ordered the plaintiff to get upon one of its said cages for the purpose aforesaid; that while in the exercise of ordinary care for his own safety and without knowledge of the dangerous condition aforesaid the said cage was hoisted by the defendant past said landing without stopping thereat to give the plaintiff a chance to alight, and on up to within a few inches of said timber, whereby, by reason of the dangerous place provided by the defendant in which the plaintiff was required to perform a part of his work as aforesaid, he was caught between the said cage and said timber and thereby injured, etc. The third count as amended and filed at the close of plaintiff’s evidence alleges the same facts with greater particularity, and, in addition, charges, that it became and was the duty of the defendant to have disclosed to the plaintiff the extra and increased hazard created by it during plaintiff’s absence by reason of said timber erected and fastened across said shaft and to have informed the plaintiff of such extra and increased hazard before requiring him to perform the duties whereby he would be subjected to said extra and increased hazard; that the defendant not regarding its duty in that behalf, negligently and carelessly failed and neglected to disclose to the plaintiff the extra and increased hazard, but then and there ordered the plaintiff to get upon one of said cages at the ground level and ascend to the top level for the purpose of ascertaining whether one of said bins was filled with coal, and while the plaintiff was in the line of his duty and in the discharge of his said employment towards the defendant, and while acting in pursuance of said order, and in the exercise of ordinary care for his own safety,, the defendant hoisted said cage on which the plaintiff was riding up to and even with said coal chute, whereby, by reason of the erection of said timber across said shaft and' the failure of the defendant to disclose to or warn the plaintiff thereof, he was injured, etc.

In general the plant designated as a coal elevator consisted of coal bins located on the east and west sides of appellant’s railroad track connected by an enclosed platform or runway extending across said track and a tower on the west side of said track, in which tower cages carrying coal were operated in slides by motive power communicated by a gasoline engine to cables which ran from the engine room over sheave wheels located in the top of the tower, and to which cables said cages were attached. Upon the railroad track beneath the said runway and between the coal bins were placed loaded coal cars with drop bottoms, so that the coal might be discharged from said ears into an excavated hopper or sump below the level of the track. The cages which carried the coal from the sump to the coal bin or platform above ran alternately up and down the slides in the north and south sides of the tower, so that when one cage was drawn up to its -extreme height in the tower where the coal was automatically dumped by a trip into the coal bin or into cars in the runway to be thus conveyed to the coal bin on the east side of the track, the other cage was below ground level in the sump, where it received the coal from the hopper. There were two places designated as landings, one being at the ground level where the bucket could be stopped as it came up from the sump, and the other being at the platform in the tower on a level with the floor of the runway which extended across the track. The runway extending across defendant’s railroad track was equipped with a double track upon which small cars were operated by machinery located on the platform in the portion of the tower where the north cage came through the platform as it ascended to the trip above. The floor of said platform in the tower was 53 feet above the ground level and the extreme height of the tower above the ground was about 88 feet. It was occasionally necessary for employes of the defendant to go to the platform and thence into the runway to do such work as might be required, and a ladder extending from the ground to said platform was provided for the use of such employes, in ascending to and descending from said platform, but to avoid the labor of climbing such ladder said employes customarily ascended to and descended from said platform by means of the cages, and for this purpose the south cage was ordinarily used, because at the place where it passed through the said platform there was no obstruction such as existed at the place where the north cage passed through said platform. The plaintiff entered the employ of the defendant on November 27, ff908, and continued in such employment fonr days, when he was temporarily laid off by reason .of the necessity of making some repairs or changes in the plant by the original contractors, whereby said plant might be (Conformed in some particulars with the provisions of the contract therefor. During the time following plaintiff’s temporary laying off and December 5, 1908, when he resumed work, the original contractors, for some purpose not disclosed by the record, had placed two beams transversely across the shafts or slides in the tower in which the cages were operated, at a point in said tower about 13 feet above the platform, so that when the cages reached the tripping blocks there was only a space of approximately two feet between said beams and the top of the cages. On. the day plaintiff resumed work and during the forenoon of December 6, being the day following, he made several trips by means of the cage operated in the south slide or shaft, and during the forenoon of the last named day he claims that he was directed by the engineer in the employ of the defendant to ascend to the platform by means of the cage operating in the north slide or shaft, for the purpose of ascertaining whether or not one of the bins was filled with coal. When the said cage reached the first or ground landing plaintiff got into it for the purpose of ascending to the platform landing. The engineer failed to stop said cage at the platform landing so as to enable the plaintiff to alight there, and he was thereby carried up a distance of about 13 feet where he was brought into contact with the beams before mentioned, whereby he received the injuries complained of.

At the close of the evidence for the plaintiff and again at the close of all the evidence defendant offered its peremptory instructions which were refused by the court. The action of the court in refusing peremptorily to instruct the jury to find the defendant not guilty is urged as being erroneous, because it is said the evidence does not tend to prove that the presence of the beams in the tower was the proximate cause of the plaintiff’s injury. The alleged negligent act or omission must be the cause which produces the injury complained of, but it need not be the sole cause nor the last or nearest cause to constitute it the proximate cause of such injury. Seith v. Commonwealth Elec. Co., 241 Ill. 252. The qontention of the defendant, that the act of Allen, the engineer, in failing to stop the cage at the upper landing to enable the plaintiff to alight there, and in hoisting said cage to a point in the tower where the plaintiff was brought into contact with the beams, was the immediate and sole proximate cause of the injury, is not tenable. In Seith v. Commonwealth Elec. Co., supra, it is said: “When the act of a third person intervenes which is not a consequence of the first wrongful act or omission and which could not have been foreseen by the exercise of reasonable diligence and without which the injurious consequence could not have happened, the first act or omission is not the proximate cause of the injury. The test is whether the party guilty of the first act or omission might reasonably have anticipated the intervening cause as a natural and probable consequence of his own negligence and if so, the connection is not broken, but if the act of the third person which is the immediate cause of the injury is such as in the exercise of reasonable diligence would not be anticipated, and the third person is not under the control of the one guilty of the first act or omission, the connection is broken and the first act or omission is not the proximate cause of the injury.” The conduct of Allen in the respect mentioned cannot be availed of by the defendant as constituting a wholly independent act and the sole proximate cause of the injury to plaintiff, because Allen was in the employ and under the control of the defendant and as the evidence tends to show was a vice-principal having authority to direct the plaintiff in the performance of his work. The negligence alleged in the two counts of the declaration is the failure of the defendant to exercise reasonable care to furnish the plaintiff with a reasonably safe place in which to work, and the failure of the defendant to warn the plaintiff of the existence of an increased hazard in the place where he was required to perform his work. Whether or not the negligence of the defendant in either of the respects charged was the proximate cause of the injury to plaintiff, notwithstanding the negligent act of Allen may have concurred in producing the injury, was a question of fact for the jury, and the trial court did not err in refusing the peremptory instructions offered by the defendant. The case of Yunkes v. Latrobe Co., 131 Ill. App. 292, relied upon by counsel for defendant, is not in point, because the injury which resulted in that ease was occasioned by the wholly independent act of a stranger to the defendant.

It is insisted that the verdict of the jury upon the issue of an alleged warning or direction by Allen to the plaintiff not to use the cage as a means of ascent to the platform is so clearly against the great preponderance of the evidence as to demand a reversal of the judgment. If the question was determinable by a consideration solely of' the number of witnesses who testified upon that issue we should have little hesitancy in concluding that the plaintiff was warned or directed by Allen not to use the cage and that a verdict to the contrary upon that issue should not be sustained. Allen testified that during the forenoon of the day on which the plaintiff was injured, he climbed the ladder to the‘platform where the plaintiff, Niesen and Stevens were at work and advised or directed them not to use the cage in ascending to and descending from the platform, because the clutch blocks were not operating properly. Niesen corroborated Allen in this particular, and further testified that when they descended from the platform they did so by means of the ladder. Stevens testified that Allen notified the men on the platform not to ride on the cage, that it was dangerous to do so, and that if they did so it would be at their own risk. This witness fixed the time of said conversation as being in the afternoon of the day on which plaintiff was injured, and further testified that he had no recollection that Allen assigned as a reason for the danger to be apprehended from riding on the cage, that the clutch blocks were defective or out of order. The plaintiff denied that he was given any such instructions by Allen or that he heard any such instructions given. The plaintiff further testified that he made about 20 trips on the cage immediately preceding his injury and there is no denial of his testimony in that regard. He further testified that upon the occasion of his injury when the north cage was at the lower platform Allen said to him, “Buddy, get on that cage and go up and see how full this bin is, and see how many cars we can put into the east one,” and he said, “Let that one go on up and send the other one down and I will go up on the other one;” that Allen replied, “It looks awfully funny and I’m getting damned tired of running these cages up and down to accommodate you fellows. I can stop this one as easy as I can stop the other.” Allen denied that he told the plaintiff to ride up on the cage but admitted that he ordered the plaintiff to go up and see if the bin was full, and that he knew that plaintiff' went up on the cage in response to such order. It is not claimed that Allen then protested in any way against the nse by the plaintiff of the cage in ascending* to the platform. The conduct of Allen in impliedly acquiescing in the use by plaintiff,of the cage on the occasion in question is wholly inconsistent with the claim that previous to that time Allen had directed the plaintiff not to use the cage, except upon the theory that the danger to be apprehended in the use of the cage had been obviated in the meantime. No reason is apparent why Allen might not have warned the workmen upon the platform as to the danger of riding on the cage from his position on the ground 60 feet below, and that he should have climbed a 60 foot ladder upon a cold day for the mere purpose of communicating a warning which might as well have been communicated without such effort on his part, tends to discredit his testimony in that respect. We are not prepared to say after a careful consideration of all the evidence and the circumstances in evidence bearing upon that issue that the finding of the jury that no such warning was given to the plaintiff as is claimed is palpably wrong.

Upon the issue as to whether or not the plaintiff rode upon the north cage in obedience to an order from Allen the verdict of the jury must, upon the evidence in this record, be held to be conclusive.

The contention of defendant that the plaintiff must be held to have assumed the risk arising from the presence of the beams in the tower finds no substantial support in the evidence. After the placing of said beams in the tower, with knowledge of which the defendant was chargeable, it does not appear that the plaintiff had occasion or opportunity to observe the presence of the beams and it is not claimed that the defendant informed the plaintiff that the beams had been placed in the tower.

While the plaintiff was riding on the cage up to and within the enclosed tower for the purpose of performing the duty imposed upon him by the defendant, such cage and tower became and was Ms working place, and the duty was imposed upon the defendant to exercise reasonable care to make said cage and tower reasonably safe for Ms use, or if the danger arising from the presence of the beams in the tower could have been avoided by warning the plaintiff of the presence of such beams, it was the duty of the defendant to so warn the plaintiff. It is clear from the evidence that if the plaintiff had had notice of the presence of said beams in the tower he could have avoided the danger incident to the hoisting of the cage above the landing* by stepping to one side of the cage.

The accuracy of the 3rd, 4th, 5th, 6th and 8th instructions given at the instance of the plaintiff is challenged upon the ground that they each assume that the plaintiff was the servant of the defendant to whom as such servant the defendant owed certain duties notwithstanding a claim on the part of the défendant that the plaintiff at the time of his injury was loaned pro hac vice by the defendant to an independent contractor, who then had possession of the plant for the purpose of making certain alterations and testing its efficiency. Without discussing the evidence in detail it is sufficient to say that it wholly fails to support the claim of the defendant in the respect mentioned. It is conclusively established by the evidence that when the plaintiff resumed work at the elevator, after he had been laid off for several days in order to enable the independent contractor to make certain alterations and repairs, he did so solely at the instance of the defendant, and that the work he thereafter performed and which he was performing at the time of Ms injury was performed by the direction of the defendant and was identical in character with the work which he had performed prior to the time he was temporarily laid off. In this state of the record no harm resulted to defendant by ignoring the existence of a relation wholly unsupported by any substantive evidence in the case. It is farther urged against instructions 3, 6 and 8 that they ignore the evidence in the record of the alleged warning to the plaintiff not to ride in the cage. The 3rd instruction which directs a verdict negatives the assumption by the plaintiff of the risk involved and requires that the plaintiff on the occasion of Ms injury should have been in the exercise of ordinary care for his own safety. These elements in the instruction fully covered the defense interposed by the defendant of a warning to the plaintiff. The 6th instruction does not direct a verdict but by necessary implication the defense of a warning to the plaintiff not to ride in the cage was included in the reqmrement that he was ordered to ride in said cage and was so riding therein pursuant to such order. The instruction further requires that the plaintiff shall have been in the exercise of due care for his own safety on the occasion of his injury. The 8th instruction relates to the fellow-servant rule and directs a verdict. It was doubtless intended by the reference in the instruction to the fifth count of the declaration to require the jury to find all the essential allegations of that count in favor of the plaintiff by a preponderance of the evidence but the phraseology employed authorizes the jury to return a verdict for the plaintiff upon proof merely by a preponderance of the evidence, “that the plaintiff was injured by reason of the fact (if it is a fact) that the defendant failed to use ordinary care to furnish him a reasonably safe place to work, as charged in the fifth count of the declaration.” As the instruction directs a verdict for the plamtiff upon proof merely of the single fact that the defendant failed to use ordinary care to furnish the plaintiff with a reasonably safe place in which to work it necessarily excludes from the consideration of the jury all the other allegations of the declaration, proof of which was essential to a recovery. We are wholly unable to agree with the contention of counsel for plaintiff that the language employed in the instruction is equivalent to, or may reasonably be construed as requiring the plaintiff to prove his case as alleged in the fifth count of the declaration, or that plaintiff was injured as alleged in the fifth count of the declaration. The instruction as given was clearly prejudicial to defendant and was not cured, if indeed it could be, by any other instruction given in the case. Mooney v. City of Chicago, 239 Ill. 414.

The 1st instruction offered at the instance of defendant and refused by the court was properly refused as being argumentative and infringing upon the province of the jury. The 8th and 10th instructions given at the request of the defendant fully covered so much of the first refused instruction as was proper to be given to the jury.

For the error in giving the 8th instruction tendered on behalf of the plaintiff the judgment must be reversed and the cause remanded.

Reversed and remanded.


author: Per Curiam:.

text:
    Flossie Shepherd Blaine et al., Appellees, v. Vandalia Railroad Company, Appellant.
    1. Railroads—what evidence not required to establish that fire was communicated by locomotive. Positive evidence is not required in such a case; substantial evidence is sufficient.
    2. Railroads—when prima facie case of liability for fire communicated by locomotive rebutted. In the absence of evidence to show the equipment of the engine which the evidence tended to show caused the fire, a prima facie case made by the plaintiff is not rebutted.
    Action in case. Appeal from the Circuit Court of Moultrie county; the Holt. W. G. Cochran, Judge, presiding.
    Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed October 18, 1910.
    E. J. Miller, for appellant.
    John E. Jennings, for appellee.
   Per Curiam:.

This is an action by Flossie S. Blaine and W. H. Peavler against the Vandalia Railroad Company, for the recovery of damages occasioned to them through the loss of a stack of hay and a lot of clover seed in the field, which it is alleged was destroyed by fire by reason of the negligence of the defendant. The trial resulted in a verdict and judgment against the defendant for $60.

The evidence develops that the plaintiff, Mrs. Blaine, was the owner of a farm a short distance east of Lovington, Illinois, through which the right of way and track of the defendant railroad company passed, and which she had leased to the plaintiff Peavler, the rental reserved being one-half of the hay and clover seed. On December 5, 1907, a stack of clover hay and a quantity of seed crop hay in a field adjoining the defendant’s right of way were destroyed by a fire, which was first noticed about eleven o’clock.in the morning, and was still burning after four o’clock in the afternoon of that day. The fire caught in the field about one hundred feet from the railroad track. One of the defendant’s east-bound freight trains had passed the field about an hour before it was observed, but there is no proof that any sparks escaped from the engine.

It is urged as ground for reversal that the evidence was insufficient to warrant the jury in finding that the fire was caused by the engine in question. It was only necessary in the first instance for the plaintiff to establish a prima facie case of negligence against the defendant, by introducing evidence to show that the fire was caused by. sparks from its engine. Positive evidence is not required in cases of this character, to establish such fact. “The testimony of the plaintiff in a case like this, introduced for the purpose of making out a prima facie case, will ordinarily be circumstantial in its character. The circumstantial evidence may consist of proof -showing that it was possible for fire to reach the plaintiff’s property from the defendant’s engine or engines, and that the fire probably originated from that cause and from no other.” “It is always difficult in any case to prove that the fire was caused by a spark from a locomotive by a witness who actually saw the spark falling upon the property destroyed and who actually saw the fire arise from such falling spark.” First National Bank v. R. R. Co., 174 Ill. 36.

There is an entire absence of any evidence in the case at bar that would raise a presumption or probability that the fire caught from any other source than from a passing engine of the defendant. A majority of this court are of opinion that the facts and circumstances in evidence were sufficient to justify a submission to the jury of the question whether or not the fire was caused by a spark from an engine. T., St. L. & W. Ry. Co. v. Farris, 117 Ill. App. 108. The jury found this issue in favor of the plaintiff. To meet the prima facie case thus established, it was essential that the defendant should prove that the particular engine in question was equipped with the best and most approved spark arresting device in common use by railroads. While such proof was introduced as to the equipment of other engines which passed the field on the day of the fire, none was made as to the freight engine that went east on the morning of the fire, and which the evidence tends to show caused the fire. The defendant therefore failed to meet the prima facie case made by the plaintiff and a right of recovery was established.

We find no prejudicial error in the rulings of the court upon the instructions, and we do not think the damages awarded are so excessive as to warrant a reversal of the judgment.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Susan A. Sebree, Appellee, v. Henry Moran et al., Appellants.
    1. Appeals and errors—what objections cannot be, urged. Objections that a judgment is in excess of the ad damnum, and that its form is in damages rather than in debt cannot be first interposed on appeal.
    2. Remittitur—when cures error. An error in rendering judgment in excess of the ad damnum is cured by remittitur.

    3. Verdicts-—when not disturbed. A verdict not manifestly against the-weight of the evidence will not be set aside on review in the absence of errors of law.
    Action in debt. Appeal from the Circuit Court of Fulton county; the Hon. G. W. Thompson, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed Oct. 18, 1910.
    Chiperfield & Chiperfield, for appellants.
    Jesse Heylin and O. J. Boyer, for appellee.
   Per Curiam.

This is an action by appellee against appellants, on a promissory note dated January 9, 1899, for $567.79, due on demand, with seven per cent interest. A jury was waived, and trial had by the court without a jury. The court found the issues for the plaintiff and assessed her damages at $1,004.38, and entered judgment upon such finding. The declaration consists of a special count in debt and the common counts, the ad damnum being laid at $1,000. Appellants filed a plea of general issue, a verified plea denying the execution of the note, and a plea of the statute of limitations. No propositions of law were submitted to the court. No error is assigned upon the rulings of the court as to the admissibility of evidence.

It is first urged that the court erred in entering judgment against appellants for the amount in excess of the ad damnum spebified in the praecipe, summons and declaration, and. further that the judgment of the court is erroneous, and that it is in damages, whereas the action is in debt, and it is not in due form of law. The objections in question cannot be raised for the first time in this court. Had they been interposed at the time of the entering of the judgment, an opportunity would have been given the plaintiff to amend, and the trial judge to have entered a formal judgment. Grand Lodge v. Bagley, 164 Ill. 340. Furthermore, appellee has entered a remittitur in this court for the excess. The only other point relied upon for the reversal of the judgment was that the finding and judgment are contrary to the evidence, appellants denying that the signatures to the note in suit are genuine or that they were placed thereon by their authority.

The evidence discloses the following undisputed facts: On January 9, 1899, appellants were indebted to appellee for money expended in their behalf, to the extent of the amount named in the note sued upon. One Dean, president of the First National Bank of Canton, drafted the note in question, and advised appellee to have appellants execute the same. Upon the trial appellee testified that she saw appellants sign their names on the note, at her home on South Main street in the city of Canton, but was unable to state exactly how long the note was drawn before they signed it; that no one was present except appellants and herself; that it might have been signed two or three days after the note was delivered to her by Mr. Dean, or it might have been as long as two or three weeks; that the note was signed shortly after it was received by her from Mr. Dean, and that she then placed it in the bank, where it remained until suit was brought, during which time she did not see it again; that during the winter of 1899 she lived in Chicago with her daughter, but was in Canton at the time the note was delivered to her by Mr. Dean; that she was unable to say how long she was in Canton that winter; that during the time she was in Chicago, her building on South Main street was rented.

•Marcus Moran testified that appellant Henry Moran said to him at the time this suit was brought, that he would pay the note, but would see that his mother (meaning appellee Rosette Moran) would not get to handle the money; that he did not deny making the note in question; that Henry afterwards said he alluded to the White note, which the evidence shows was ten years previously converted into a judgment, and paid by appellee. He further testified that while he had not seen the signatures of appellants for a good many years, the signatures upon the note sued upon had the appearance of and similarity to the signatures of his brother and sister-in-law. W. D. Plattenburg, cashier of the First National Bank 'of Canton, testified that appellants had done business in that bank for twenty years; that he had seen them write and was acquainted with their handwriting sufficiently to know it when he saw it; that the signatures to the note sued upon were, in his opinion, the signatures of the appellants, and that he could no more be mistaken in such opinion than he could be mistaken in his own handwriting. E. A. Heald, cashier of the Canton National Bank for twenty-three years, testified that he knew appellants and had seen them write; that, while he was not familiar with their handwriting, he had frequently seen their names on checks passed through his bank, and that he could recognize their signatures; that, in his opinion, the signatures to the note sued upon were the signatures of the appellants. George Wilson, cashier of the First National Bank of Canton, also county treasurer of Fulton county,' testified that appellants had done business in his bank; that he had seen them write their names; that he had recognized their signatures on checks every day or two; that, in his opinion, the note sued upon contained the signatures of the appellants. J. G. Harmison testified that he was a teacher of penmanship and bookkeeping, and had had twenty-five years’ experience as such; that he had made a study of penmanship relative to spurious and genuine penmanship, and that he had examined the signatures on the note sued upon, and that, in his opinion, the signatures were genuine.

Appellants each specifically deny signing the note, or ever authorizing any one to sign it for them, and deny that they ever had any knowledge of the existence of such note until suit was brought thereon. They testified that from about October 1,1898, until March 10 to 17, 1899, appellant Henry Moran was in the state of Kansas, and that during said time appellant Rosette Moran resided in Canton; that she was in delicate health during the winter of 1898 and 1899; that she gave birth to a child on March 22, 1899, and that her husband did not return to Illinois until about one week before the birth of her child. Three other witnesses testify that Henry Moran was absent in Kansas from October, 1898, to the middle of March, 1899.

Counsel for appellants insist that the finding of the court was clearly and manifestly against the evidence, and that it is therefore our duty to reverse the judgment rendered thereon. If the testimony of appellee was true, the verdict was right. The trial judge doubtless credited the same and disbelieved that of appellants, and we cannot say that he was not warranted in so doing. The fact that appellee may have been because of the lapse of time, mistaken as to the date the note was signed, a matter not necessarily material, we do not regard as affecting her credibility upon the all-important question of the signing of the notes by appellants. It is obvious that the note was not prepared by Dean, a disinterested party, with a view to having the signatures of appellants forged thereto. The trial judge was doubtless loath to believe that appellee, or any one for her, wilfully and deliberately committed a felony for no other motive than the collection of a debt for which the record shows appellants were morally liable. He, like a jury, was the sole judge of the credibility of the respective witnesses and the weight to be given to their testimony. His finding upon the controverted questions of fact is entitled to the same - weight as the verdict of a jury. Podolski v. Stone, 186 Ill. 540.

In view of the fact that the evidence was close and conflicting, the questions of fact were peculiarly for the determination of the trial judge. We do not feel warranted in holding that his finding was so manifestly against the. evidence as to necessitate a reversal of the judgment, and it is accordingly affirmed.

Affirmed.


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    First National Bank of Mattoon, Appellee, v. S. L. Seass et al., Appellants.
    1. Judgments—construction of power to confess. A note and power of attorney to confess judgment are to be construed as one instrument.
    2. Agency'—when power to confess cannot he revolted. A pr -r to confess judgment upon a note cannot be revoked at the will of the makers.
    3. Negotiable instruments—what does not affect title of endorsee. Mere suspicion, the knowledge of circumstances calculated to excite suspicion, or even gross negligence of the endorsee of commercial paper taken before maturity for value and without knowledge of any defense thereto, will not defeat his title, but the title of such endorsee can only be defeated by bad faith on his part.
    Judgment by confession. Appeal from the City Court of Mattoon; the Hon. T. N. Coeer, Judge, presiding.
    Heard in this court at the November term, 1909.
    Reversed and remanded with directions.
    Opinion filed October 18, 1910.
    Andrew L. Chezem, for appellants.
    Craig & Kinzel, for appellee.
   Per Curiam.

This is an appeal from an order of the City Court of Mattoon denying the motion of defendants to open up a certain judgment by confession entered against them and in favor of plaintiff for $358.25, upon their note and warrant of attorney to confess judgment thereon, which said note was made payable to one H. B. Sinsabaugh and by him endorsed to plaintiff before maturity. The affidavit of the defendant, S. L. Seass, filed in support of said motion states in substance, that on March 14, 1908, he attended a public sale of horses conducted by said Sinsabaugh; that said Sinsabaugh then and there represented to him that a certain mare then to be sold was of the age of seven years and not older and that said mare was a regular breeder, had borne one colt the year previous, was a full blood English Shire, was regularly registered as such and that while he, Sinsabaugh, did not have a certificate of the registration and pedigree of said mare he would have the same within a few days and would deliver the same to the purchaser of said mare at said sale; that when said mare was subsequently put up for sale by said Sinsabaugh, acting as auctioneer, he made like representations as to the age, pedigree, registration and certificate thereof and the breeding qualities of said mare, and that relying on said representations and believing the same to be true affiant bid off the said mare at the sum of $325; that, thereafter, on the same day when the note in question was by the clerk of said sale being filled out and prepared for signature, affiant requested that there be written therein a clause to the effect that said mare was full blood and registered, and that a. certificate of registration would be furnished; that the First National Bank of Mattoon had agreed with the said Sinsabaugh to purchase of him all bankable notes which should be taken at such sale and that said bank then and there had its representative in the person of one George Richmond, its cashier, to pass upon the solvency of the makers and sureties on such notes; that said Richmond was present when said note was being written, and signified his willingness to accept the same when signed by affiant and his wife; that said Richmond heard the said Sinsabaugh make the representations before mentioned concerning said mare and heard affiant request the clerk of said sale to insert said representations in said note, but said Richmond refused said request, and then and there stated to affiant that the said representations made by Sinsabaugh concerning said mare were certainly correct and could be relied upon and that said Sinsabaugh would deliver to affiant the said certificate of registration of said mare as stated and that affiant and his wife could safely sign said note, and should sign the same without said representations and statements appearing therein; that solely by reason of the said statements and representations made by said Richmond, affiant and his wife signed said note. Said affiant further states in said affidavit that at the time of said sale the said mare was of the age of ten years, and was not a registered mare; that'said Sinsabaugh did not have and then well knew he could not have said mare registered, and could not and would not receive an^ certificate of such registration; that the said mare was not a regular breeder, and was not in foal for more than three years previous to said sale, and was not worth to exceed the sum of $150; that prior to the taking of said judgment the affiant and his wife notified the First National Bank of Mattoon, the said Richmond and the said Sinsabaugh, in writing, that they would resist payment of the said note, and demanded the surrender and cancellation of the same, because the said note was without consideration, and was procured by fraud and misrepresentations, which fraud and misrepresentation was known to the payee and to the holder of said note when the same was made and assigned, and was not known to the affiant and his wife when they signed the same.

It is first urged that the warrant of attorney, which forms a part of the note upon which judgment was entered by confession, does not upon its face identify the particular note in question. The note and warrant of attorney to confess judgment thereon are both partly written and partly printed over the signatures of the makers, which only appear under the warrant of attorney, and said note and warrant of attorney are for the purpose of construction to be regarded as one instrument. Packer v. Roberts, 140 Ill. 9; Holmes v. Parker, 125 Ill. 478; Heslip v. Anderson, 134 Ill. App. 8; Smith v. Dazey, 124 Ill. App. 399. Adopting the rule of construction applicable to entire contracts in writing the warrant of attorney in question must be held to refer to the note of which it forms a part, and by virtue of which the judgment by confession here involved was entered.

It is next urged that the notice which was served by the defendants upon the plaintiff forbidding plaintiff to take judgment upon said note operated as a revocation of the warrant of attorney to confess judgment thereon, and that in the absence of an averment in the declaration upon said note and warrant of attorney, that the warrant of attorney remained unrevoked, no judgment by confession could properly be entered upon said note. One of the exceptions to the rule, that a principal may at his pleasure revoke the authority of his agent under a power of attorney, is where such power is given as security to the creditor. Walker v. Denison, 86 Ill. 142; 30 Am. Eng. Enc. of Law, 2nd ed., 117. The warrant here involved having been given as security to the holder of the note was not revocable at the will of the makers.

It is finally insisted that the affidavit filed by the appellant S. L. Seass in support of the motion to set aside or open up the judgment, shows such a state of facts as should have moved the court to grant such motion.

It is well settled that mere suspicion, the knowledge of circumstances calculated to excite suspicion, or even gross negligence of the endorsee of commercial paper taken before maturity for value and without knowledge of any defense thereto will not defeat his title, but that the title of such endorsee can only be defeated by bad faith on his part. Bradwell v. Pryor, 221 Ill. 602; Kavanagh v. Bank of America, 239 Ill. 404. What amounts to such bad faith in a particular case is ordinarily a question of fact for a jury.

The discounting of commercial paper is commonly recognized as being a legitimate exercise by a bank of its corporate powers. The cashier of a bank is its general agent in the transaction of its legitimate business. Squires v. First Nat. Bank, 59 Ill. App. 134; Case v. Citizens’ Bank, 100 U. S. 446.

The affidavit filed in support of the motion here involved sufficiently discloses that the plaintiff bank had entered into an arrangement with Sinsabaugh whereby it would discount the sale notes which might be given by the purchasers at the sale; that Richmond was present at the sale in his official capacity as cashier and agent of the bank to pass upon the sufficiency of the sale notes which the bank had agreed to discount; that Richmond had actual notice of the statements and representations which are alleged to have been made by Sinsabaugh at said sale respecting the animal which was there purchased by Seass, and that Richmond then stated to Seass that said statements and representations were true and could be relied upon by him. The statements and representations so alleged to have been made by Sinsabaugh to Seass constituted a substantial element of the consideration which moved the latter to purchase the mare, and it is conceded that in an action by Seass against Sinsabaugh the latter would be liable to respond in damages for the falsity of such statements and representations. It appears from the affidavit that the plaintiff bank through Richmond its cashier and general agent had actual notice and knowledge of the alleged statements and representations and that Seass to whom the same were made relied upon the same as being true.

If the facts alleged in the affidavit are established by evidence adduced upon a trial before a jury, the defendants'will have interposed a substantial defense upon the merits.

Authorities cited by counsel for plaintiff announcing the rule that notice merely to the endorsee of a promissory note before maturity, that the consideration of said note is executory, will not prevent a recovery even though such consideration afterwards fails, are not controlling because the affidavit in question discloses that the consideration involved was executory only in part, viz., in so far as it related to the furnishing by Sinsabaugh to Seass of a certificate of registration.

The judgment of the Circuit Court will be reversed and the cause remanded with directions to open up the judgment and permit the defendants to plead to the merits.

Reversed and remanded with directions.