text:
    City of Earlville, Appellee, v. James S. Radley, Appellant.
    Gen. No. 4,891.
    1. Definitions—“penalty.” While “penalty” may sometimes be used to mean punishment by personal confinement or suffering, yet it usually means the exaction by law of the payment of a sum of money as punishment.
    2. Ordinances—power of city council to enact ordinance fixing penalty for member of council absenting himself from meeting. Held, that a city council has power to pass an ordinance providing for a fine to be imposed upon a member who absents himself from any meeting of the council, and such a fine may be imposed pursuant to such an ordinance notwithstanding the member may not have been notified to attend the particular meeting in question; such an ordinance is valid and enforceable even though the attendance of the particular member was not required to make a quorum, as either a majority or a minority has power to compel the attendance of absentees.
    3. Ordinances—when proof of existence sufficient. A book published by authority of the city council which contains a particular ordinance is prima facie proof of the existence of such ordinance, and such ordinance is presumed to have continued in existence until the contrary is shown.
    Action commenced before justice of the peace. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge,

      presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed April 22, 1908.
    Statement by the Court. Appellee had judgment for $4 against appellant, an alderman, for failure to attend four meetings of the city council, being $1 for each meeting, and this is an appeal by said alderman from said judgment.
    Chapter one of the revised ordinances of the city of Earlville is entitled: “An ordinance regulating sessions of the city council.” Section 5 of said chapter reads as follows: “Any member absenting himself from any of the meetings of the same, may be fined the sum of one dollar, unless for some good reason he shall be excused by the city council, which fine, with the costs of the proceedings may be collected by suit, to be commenced before the police magistrate in the name of the city of Earlville.” On April 19, 1904, a city election was held in said city, and afterwards the returns were canvassed at a meeting of the city council and appellant was declared elected alderman from the second ward, which was in fact a re-election. Appellant participated in the canvass. The term of office was two years. (Section 3 of article 3 of the act for the incorporation of cities.) Section 1 of said chapter 1 of said revised ordinances fixes the first Monday of each month at 7:30 o’clock p. m, for the regular meetings of the city council, at such place within the city limits as the city council may from time to time direct. The city council met in regular session on July 3,1905, with all the members present. Appellant took part in the proceedings. The city council consisted of the mayor and six alderman. (Sections 1 and 2 of article 3 of said act for the incorporation of cities.) Upon roll calls upon the confirmation of appointments by the mayor to the offices of street superintendent, public engineer and fire marshal, the vote was a tie, appellant being one of those voting not to confirm. The city council then adjourned to Friday evening, July 7. At that adjourned meeting the three aldermen who had voted not to confirm were absent, including appellant. The city council then adjourned to Friday, July 14. At that adjourned meeting said three aldermen were again absent. At the next regular meeting on August 7, said three aldermen were again absent, and the city council adjourned till Wednesday evening, August 9. At that adjourned meeting the same three aldermen were again absent. There was no quorum present at any of said four meetings. At the meeting of August 9 a motion was made and unanimously adopted that said three aider-men, including appellant, be fined $1 each for each meeting from which they had been absent, specifying the adjourned meetings of July 7 and 14 and the regular meeting of August 7, and the adjourned meeting of August 9, the fines to be paid within three days from date. The city council then adjourned till Monday, August 14. At that meeting all the members were present and appellant took part in the proceedings. The facts above stated appear from the. records in evidence. On August 14, but whether before or after the meeting does not appear, a summons was issued by the police magistrate at the suit of the city against appellant and said summons was served the next day. Appellant did not appear at the return day, and the city had judgment for $4 and the costs. We find nothing in the record before us to show that appellant ever appealed from that judgment, but a transcript thereof was afterwards filed in the Circuit Court of LaSalle county, and each party appeared, a jury was .waived, the cause was tried in the Circuit Court and appellee had judgment for $4 and costs as above stated.
    James J. Conway, for appellant.
    George S. Wiley and Browne & Wiley, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

The validity of the ordinance is the main question involved. The act of 1872 to provide for the incorporation of cities and villages is the charter of the powers of the city of Earlville and of its city council. The 96th paragraph of section 1 of article 5 thereof gives the city council power “to pass all ordinances, rules, and make all regulations proper or necessary to carry into effect the powers granted to cities or villages, with such fines or penalties as the city council or board of trustees shall deem proper; provided, no fine or penalty shall exceed $200, and no imprisonment shall exceed six months for one offence. ’ ’ Section 9 of article 3 of said act authorizes the city council to prescribe by ordinance the times and places of the meeting thereof. Section 7 of said article 3 authorizes the city council to determine its own rules of procedure and to punish its members for disorderly conduct. Section 8 of article 3 is as follows: “A majority of the aldermen elect shall constitute a quorum to do business, but a smaller number may adjourn from time to time, and may compel the attendance of absentees, under such penalties as may be prescribed by ordinance.”

1. While it may well be that the city council could order the city marshal, if it had such an officer, to bring in the absentees, yet it is evident that said section 8 gives further power than that. The minority is authorized to compel the attendance of absentees “under such penalties as may be prescribed by ordinance.” While “penalty” may sometimes be used to mean punishment by personal confinement or suffering, yet it usually means the exaction by law of the payment of a sum of money as punishment. Anderson’s Law Dictionary, title ‘ ‘ Penalty. ’ ’ Webster says: “The term ‘penalty’ is mostly applied to a pecuniary punishment.” It is so used in paragraph 96 above quoted from said act, which enacts that no penalty shall exceed $200 and that no imprisonment shall exceed six months. It follows that when by said section 8 of article 3 authority was given to “compel attendance of absentees under such penalties as may be prescribed by ordinance,” authority was thereby given to inflict pecuniary penalties by ordinance upon -members of the city council who are absent from its meetings. Of course, a pecuniary penalty does not secure attendance, but its enforcement has a tendency to that result, and the statute intended to authorize the enforcement of a pecuniary penalty for that purpose. The ordinance above stated fixed the time and place of the regular meetings and provided a fine, which means a penalty, of $1 against a member of the city council absenting himself from any meeting thereof, to be collected by suit before the police magistrate of the city. This was such a penalty as the statute authorized. Appellant was mayor when that ordinance was adopted, and as mayor he approved it.

2. It is contended that there is no proof that this ordinance was still in force when its alleged violation took place. From the book of revised ordinances appellee offered in evidence the cover, the title page, the last page and the pages containing the sections of the chapter concerning the meetings of the city council relied upon. These show that the book was published in 1887 by authority of the city council, and that the ordinances were adopted in December, 1886. When a state of things or a fact is shown to exist, the presumption is that it continues till it is shown to have ceased. 1 Greenleaf on Evidence, sec. 41; Butler v. Chaplin, 28 Ill. 230, 234; Western Stone Co. v. Whalen, 151 Ill. 472, 482. This presumption was applied to a city ordinance in St. L., A. & T. H. R. R. Co. v. Eggmann, 60 Ill. App. 291, 161 Ill. 155; C., C., C. & St. L. Ry. Co. v. Bender, 69 Ill. App. 262.

3. It is argued that said section 8 of article 3 only relates to an attendance necessary to secure a quorum, while the ordinance authorizes a fine even if the absence did not break a quorum, and that therefore the ordinance is broader than the statute and is invalid. The statute does not say “may compel the attendance of absentees for the purpose of securing a quorum,” but it authorizes the city council in general terms to compel the attendance of absentees. If the minority may compel attendance, certainly the majority may also do so. The infliction of a pecuniary penalty has no tendency to bring in the member during that particular meeting, but it is the fact that such a penalty can be inflicted, or its infliction for a past offense, which tends to cause future attendance. The penalty is required to be fixed by ordinance, and the minority cannot pass an ordinance. Therefore the statute means to authorize the majority to pass an ordinance prescribing penalties for future absentees, and the words of the statute do not limit this authority to absence which breaks a quorum. But if the statute would not authorize such a penalty when such absence did not break a quorum, the absence here complained of did break a quorum, and the ordinance would be valid as applied to this case.

4. It is argued that said section 8 of article 3 is not intended to authorize punishment till the member refuses to attend after the minority has ordered him to attend that particular meeting. The statute does not require that a member shall be notified to attend a particular meeting before the penalty can be inflicted for his absence. Such a requirement would defeat the remedy, for a member, intending to remain absent, could easily place himself where an officer sent by the city council could not find him.

5. It is argued that appellant is not liable to this penalty because he received no notice of these meetings. He was present at the regular July meeting. He knew to what time it adjourned. It was his duty to be present at that adjourned meeting. If he had been present then, he would have learned the time fixed for the second adjourned meeting. The time for the regular August meeting was fixed by ordinance, and it was his duty to attend it without notice. If he had attended that meeting, he would have known the date of the next adjourned meeting. He did not offer to prove that he was ignorant of the time when these meetings were to be held. These were not special meetings. As to special meetings, section 3 of said chapter 1 of said revised ordinances required twenty-four hours’ notice to each member, but neither statute nor ordinance required notice to aldermen of regular meetings, the time for which is fixed by ordinance, nor of adjourned regular meetings. An adjourned regular meeting is but a continuance of the regular meeting, and members are presumed to have knowledge of the time for holding the regular stated meetings. 15 Am. & Eng. Encyc. of Law, 1034, 1035.

6. It is argued that the ordinance is unreasonable because it vests in the city council an unregulated discretion to excuse or not to excuse the absent member, without fixing what shall be a “good reason” for such excuse, and that to make the ordinance reasonable the conditions should have been prescribed which would constitute a sufficient excuse. Appellant was present and participated in the next meeting after these absences, and did not ask an excuse, and did not offer any excuse in the trial in either the justice court or the Circuit Court. It would therefore seem that this question is not raised upon this record. But if it were, it must be determined against appellant. A city council has .the power to settle all pending controversies affecting the city. It may compromise or abandon all doubtful controversies. Agnew v. Brall, 124 Ill. 312; City of Lewiston v. Hummell, 38 Ill. App. 326. It follows that the clause in the ordinance of which this complaint is made only re-enacted a power which the city council already possessed, and if it had been omitted the city council still had power to excuse the member for whatever it regarded as a sufficient cause. The power to hear the excuses of absent members, and to accept or refuse to accept the excuses, is believed to be common to all legislative bodies.

7. It is argued that this ordinance deprives the court of power to excuse appellant. This question we do not consider raised upon the record, as appellant did not offer any proof tending to show any reason for his absence. But we do not concede that under this ordinance the court was bound to impose a fine, regardless of any valid reason appellant might show for failing to be present. If, by way of illustration, he had shown that at the time of these meetings he was dangerously ill and physically unable to leave his bed or his home, we do not doubt that the court would have been authorized to hold that while the ordinance was reasonable, as generally applied, yet that it would be unreasonable to impose a fine under such circumstances, and that the law did not require the impossible.

8. Some oral proof of the contents of records was introduced, but it was afterwards excluded, and it was not harmful even if not excluded. Where a case is tried without a jury the admission of incompetent testimony is not reversible error, if the competent proof justifies the judgment. In such case the court is presumed to have based its judgment upon the competent testimony. Palmer v. Meriden Brittania Co., 188 Ill. 508; Grand Pacific Hotel Co. v. Pinkerton, 217 Ill. 61; Foltz v. People, 118 Ill. App. 557.

9. The statute and ordinance here involved' were enacted to compel the performance of a duty which the public has a right to require. Appellant was elected alderman, and he accepted that office. The public then became entitled to have him discharge the duties of that office. As was said in People v. Williams, 145 Ill. 573: “It is essential to the public welfare, necessary to the preservation of government, that public affairs be properly administered; and for this purpose civil officers are chosen, and their duties prescribed by law. A political organization must necessarily be defective, which provides no adequate means to compel the observance of the obvious duty of the citizen, chosen to office, to enter upon and discharge the public duty imposed by its laws, and necessary to the exercise of the functions of government.” In Nagle v. Wakey, 161 Ill. 387, spealdng of an office which, under our township organization law, subjects the person elected to a penalty if he shall refuse to serve, the court said: “the purpose of that penalty is to enforce the acceptance of the office, and its payment does not discharge one elected to a town office from the duty of acceptance and performance. He must yield to the public welfare, and the office is regarded as a burden, which he is bound, in the interest of the public, to bear, to the end that the government may be carried on.”

In People v. Election Comrs., 221 Ill. 9, the court, on page 21, said: “The voters have the right to choose any eligible person, and he owes a duty to the public to qualify and serve.” The statute and the ordinance here in question are therefore fitted to enforce the fixed public policy of this state to require one who has accepted a public office to serve the public in that capacity and to perform the duties of that office. If the ordinance had fixed an oppressive penalty the courts would declare it unreasonable, but the penalty here prescribed is very moderate. The court properly refused the propositions of law tendered by appellant. We find no reversible error in the record.

The judgment is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    Village of Walnut, Appellee, v. Julius Barnett, Appellant.
    Gen. No. 4,899.
    1. Ordinance—who itinerant merchant within meaning of license ordinance. When a man becomes an itinerant merchant, he is as much so at the first place to which he goes as the third, fifth or tenth, and one who rents a store building for one week, engages board for a like period of time and advertises to sell his wares for a period of four days, is an itinerant merchant within the meaning of an ordinance requiring that itinerant merchants take out licenses.
    2. Ordinances—who liable for penalty for failure to take out itinerant merchant license. One who acts for the owner of merchandise sought to be sold in the itinerant merchant way is liable to the payment of the penalty provided by an ordinance in the event of the failure to take out a license as provided for therein.
    3. Ordinances—when itinerant merchant license fee not unreal sonable. Held, that an ordinance which requires an itinerant merchant to pay a license fee of five dollars per day, is not unreasonable.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Bureau county; the Hon. Richard M. Skinner, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed April 22, 1908.
    W. 0. Graves, for appellant.
    M. A. Stiver, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

The act of June 16, 1887 (Hurd’s Revised Statutes, 1905, p. 303), gives the president and board of trustees of villages power “to license, tax, regulate, suppress or prohibit itinerant merchants and transient venders of merchandise.” The village of Walnut had in force section 25 of chapter 14 of its revised ordinances, which read as follows: “The license fee for an itinerant merchant who brings a stock of goods into this village temporarily to sell at auction or otherwise, or to sell a floating stock of merchandise at auction or otherwise, shall be five dollars per .day or part thereof.” Section 26 provided a fine of not less than ten dollars nor more than twenty-five dollars against' any person selling goods as provided in section 25, without first obtaining a license therefor. Appellant sold goods in said village on February 13, 14, 15 and 16, 1907, ■ without obtaining a license. This suit was instituted against him on the third of said days, before a justice of the peace. On an appeal to the Circuit Court a jury was waived, proofs were heard, and the village was awarded a judgment against appellant for fifteen dollars, from which he prosecutes this appeal. Ho propositions of law were presented to the trial court. The litigated questions are whether appellant was an itinerant merchant, whether he was liable to the fine when he was only acting as clerk, and whether the fine fixed by the ordinance was so unreasonable as to make the ordinance void.

Max Barnett conducted a store in Pontiac, Illinois. Appellant was his brother, and was in his employ as clerk, at fifty dollars per month. Max sent appellant to Walnut with a part of his stock of dry goods. Appellant rented a storeroom in Walnut for one week, and engaged board for himself and for another clerk for one week. Appellant got out colored handbills in the name of his brother Max, in size about fourteen inches by twenty inches, headed “Manufacturers’ Big Outlet Sale.” This handbill was circulated extensively throughout the village and the surrounding farming community, and copies thereof were posted, and it was printed in the local newspapers. It announced several times that the sale would begin on Wednesday, February 13, at 10 a. m., and would close Saturday February 16, at 10 p. m., and named the building where the sale would be held. It announced that the advertiser would sell a big line of men’s and ladies’ clothing, lace curtains, and ladies’ and gents’ furnishing goods, at fifty to sixty cents on the dollar. It enumerated between 135 and 140 different kinds of articles for sale, giving both the original price and the selling price of most of them, and in most cases showing a reduction of from 25 to 50 per cent., and in some cases a reduction decidedly greater than 50 per cent. This advertisement stated that the values would outdo anything offered before in Walnut. In fact, this was not a sale by manufacturers; nor was it a sale at a discount of from 25 to 50 per cent., and above that. On the contrary these were second rate goods, and they were sold at a profit of from 5 to 25 per cent., according to appellant’s own testimony. On the day the sale opened, he was notified by the village marshal that he must take out a license. He at once asked to see the ordinance, and upon seeing it, offered to pay one dollar per day as á license fee; but he said that five dollars per day was prohibitive, and he told the village marshal that there was a case in the 159th Illinois, at page 284, which exactly applied to his case. That case was in fact a prosecution of an itinerant merchant for failure to take out a license. Appellant conducted the sale to the end of the four days advertised, and then left town with the rest of his goods. It is contended that the proof does not show that he was an itinerant merchant, because it does not show that he had sold in this itinerant fashion at any other place except Walnut. There are some things in his testimony which indicate that he had sold for his brother in like manner at other places. He testified that he sometimes reported his sales to his brother Max twice a day, and sometimes he did not report for two or three days. That statement can hardly apply to this sale at Walnut, which only occupied four days. He testified that sometimes Max came around to see how he was conducting the business, but that Max did not come to Walnut. The implication is that Max did come around to see how he was conducting the business when he was selling at other places. His conduct in demanding to see the ordinance and offering to pay one dollar per day as a license fee, and in citing the case of the City of Carrollton v. Bazzette, 159 Ill. 284, as authority for the proposition that a license fee of five dollars per day was prohibitive, tends to indicate a knowledge on his part that he was an itinerant merchant within the meaning of the law, and shows that he was previously prepared to meet a demand of this kind. When a man becomes an itinerant merchant, he is as much so at the first place as at the third or fifth or tenth. As appellant rented this store building for only one week, and engaged board for only one week, and advertised to sell, expressly limiting the time to four days, and as his advertisement was calculated to deceive as to values, and as he immediately removed at the end of four days, and does not testify or claim that he intended to stay any longer, we hold that the court was warranted in finding that he came there for the purpose of a brief temporary stay, to dispose of a cheap lot of goods at fictitious prices. He expected that his handbills would draw a large trade for a short time, and that he would be gone before the people ascertained that, instead of buying goods at a discount of 50 per cent., they were paying the usual merchant’s profit. We think this is a proper case for the application of such an ordinance.

It is true that appellant did not own the goods, but was only acting as clerk for his brother. But he was the one actually conducting the sale and actually violating the ordinance. He was no doubt liable to its penalty therefor.

Was the license fee of five dollars per day unreasonable? It is true that if paid for a year, the fee would amount to over $1,500 per annum, and such a charge would be prohibitive, and therefore unreasonable. But this license fee was not charged to a merchant who stays or plans to stay a year. Such a one would not be an itinerant merchant, and would not be required to take out a license or pay a license fee. This license was required only of merchants who came to stay but a brief period, and who intended to then leave with their remaining goods. Appellant only planned to stay four days. He only sold goods four days. We think that five dollars per day as a license fee for so short a stay was not unreasonable, and that it would not be prohibitive; and that therefore the ordinance is not void as applied to this case. The judgment is therefore affirmed.

Affirmed.


text:
    H. B. Baumeister, Appellant, v. Edward G. Fink et al., Appellees.
    Gen. No. 4,911.
    1. Practice—effect of absence of exception to finding or judgment. Where the hill of exceptions contains no exception to the finding or judgment of the court, the sufficiency of the evidence to support the finding is not preserved for review; but if exceptions have been properly preserved to prior rulings of the court, those rulings are subject to review, notwithstanding the lack of the exception to the judgment.
    2. Appellate Court—what operates to oust jurisdiction. An assignment of error which presents a constitutional question to the Appellate Court for review, operates to oust its jurisdiction to determine the appeal.
    3. Bulk Sales Act—construed. The meaning of the Bulk Sales Act of 1905 is that proof that a stock of goods has been sold in violation of the provisions of that act establishes a prima facie case that the sale is fraudulent and void as to the creditor injured thereby, or, in other words, a presumption that the sale was fraudulent and void arises from such proof and thereby the burden is cast upon the purchaser to prove the good faith of the transaction; but the presumption arising from proof of the state of facts named in the statute is not a conclusive presumption, but may be overcome by proof offered by the purchaser.
    Garnishment. Appeal from the Circuit Court of Jo Daviess county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed May 7, 1908.
    Hudsou & Campbell and A. J. Byah, for appellant.
    Sheeah & Sheeau, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

In a suit by Breen & Kennedy against Baumeister, Edward Gf. Fink and Myron Gf. Brown were summoned as garnishees and the issue whether the garnishees were indebted to Baumeister was tried before the court without a jury, the garnishees were discharged, and the beneficial plaintiffs prosecute this appeal.

The bill of exceptions contains no exception to the finding or to the judgment of the court. It was decided by the Supreme Court in Climax Tag Co. v. American Tag Co., 234 Ill. 179, that in such case the sufficiency of the evidence to support the finding is not preserved for review, but that if exceptions have been properly preserved to prior rulings of the court those rulings are presented for review on appeal under section 60 of the Practice Act of 1872, notwithstanding the lack of an exception to the judgment. Section 82 of the Practice Act of 1907 is to the same effect as said section 60. The only exceptions preserved in this record are to the action of the court in refusing to hold propositions numbers one and two presented by appellants. Proposition number two presented a constitutional question and its refusal is not assigned for error, for the obvious reason that if it had been so assigned this court would not have jurisdiction of the appeal. The sole question presented for our consideration by this record is whether the court erred in refusing the first proposition. That proposition was framed to hold that under the Bulk Sales Act of 1905 (Hurd’s Stat. 1905, page 763) a sale in contravention of that act which results in hindering a judgment creditor in the collection of his debt is fraudulent and void as to such judgment creditor. We are of opinion that the meaning of said statute is that proof that a stock of goods has been sold in violation of the provisions of that act establishes a prima facie case that the sale is fraudulent and void as to the creditor injured thereby, or in other words that a presumption that the sale was fraudulent and void arises from such proof, and that thereby the burden is cast upon the purchaser to prove the good faith of the transaction; but that the presumption arising from proof of the state of facts named in the statute is not a conclusive presumption, but may be overcome by proof offered by the purchaser. We are therefore of the opinion that the court properly refused to hold said proposition of law.

The judgment is therefore affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Edward O. Fuller, Plaintiff in Error.
    Gen. No. 4,878.
    1. Slander and libel—how words to be taken. Words brought into question in an action for slander or libel are to be taken in the sense which persons of common and reasonable understanding would ascribe to them; that is, in their ordinary or common acceptation.
    2. Slander and libel—what words actionable per se. The word “filch” is actionable per se.

    3. Slander and libel—sufficiency of indictment charging criminal libel. Held, that the indictment in this case, which charged a criminal libel in the use, among other things, of the word “filch,” was sufficient to sustain the conviction.
    4. Criminal libel—what not defense to prosecution for. Held, that the defendant in this case did not show that the publication made was the truth; also that he did not show that the publication in question was made with good motives, and that, therefore, he was not entitled to the benefit of section 179 of the Criminal Code, which is as follows»:
    “In all prosecutions for libel, the truth, when published with good motives, and for justifiable ends, shall be a sufficient defense.”
    5. Counties—power of county board to change allowances during term of county officer. Where the compensation to a county officer is fixed at one sum and the clerk hire and other expenses are fixed separately therefrom, in such case, while the compensation cannot be changed during the term, the county board has power to change the allowance for clerk hire and other expenses during the term.
    6. Counties—when expenditure by county officer becomes lawful. An expenditure made by a county officer, though unauthorized at the time it is made, becomes lawful if it is subsequently approved by the county board, and such county hoard has power to make such approval.
    Prosecution for criminal libel. Error to the Circuit Court of Lee county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed May 20, 1908.
    Statement by the Court. Plaintiff in error was indicted for a criminal libel in the Circuit Court of Lee county, was tried and convicted, and was sentenced to pay a fine of two hundred dollars and costs, and to stand committed to the county jail till fine and costs were paid. He has sued out this writ of error to review said judgment.
    The first count of the indictment after the formal parts, charged that plaintiff in error “unlawfully and maliciously contriving and intending’ to villify and defame one Walter B. Merriman, and to expose him to public hatred and contempt, unlawfully and maliciously and wilfully did publish a certain false, malicious and defamatory libel of and concerning him the said Walter B. Merriman, and did cause and procure the said false, malicious and defamatory libel to be printed in a certain newspaper called ‘The Dixon Daily Sun’ in the town of Dixon, in the county of Lee and state aforesaid, with intent to publish and circulate, and then and there did publish and circulate the said false and defamatory libel of and concerning’ the said Walter B. Merriman, so printed as aforesaid in said county of Lee, which false, malicious and defamatory libel of and concerning the said Walter B. Merriman so published, printed and circulated in said county of Lee, is in the words and figures as follows.” The article is of such great length that it cannot be here reproduced. The heading read as follows: “Money Illegally Filched. Large Sums Found to Have Been Taken by Treasurers Merriman and Sterling:” with the innuendo that Merriman meant said Walter B. Merriman. The article stated that John M. Sterling was elected county treasurer in 1898, and was succeded by Walter B. Merriman; that Sterling was under Merriman for a time, and now was again a candidate to succeed btm in that office; that the system of alternation on this office had been an expensive one for the taxpayers; and it set out that the board of supervisors in September, 1898, fixed the salary of the county treasurer for the ensuing four years at $1,200 per year, and the deputy hire at $800 per year; and that the statutes of Illinois, besides these amounts, provide that the county treasurer shall receive $500 per year as supervisor of assessments, and that that act went into effect July 1, 1898. The article then contained a long account of action by Sterling while county treasurer whereby as was alleged he illegally drew certain sums for clerk hire and miscellaneous expenses. It then had another heading, as follows: “W. B. Merriman more greedy.” The article then declared that Merriman took the office under the same legal provisions and salary as Sterling did; that the board of supervisors fixed the salary and deputy hire at the same figure, and the salary of the supervisor of assessments was the same; yet that in the three years thus far reported to the county board by Merriman he had illegally drawn, over and above all the money he was legally entitled to, the sum of $802.30. It then gave an itemized statement of the sums which he had drawn in 1903, 1904 and 1905 respectively, and continued as follows: “According to the records, Mr. Merriman has illegally drawn the following amounts: •
    Dec. 1903 Mise. Exp..................................... $ 57.97
    Dec. 1903 Pub. Acct. and Ext. Clerk Hire. 656.43
    Dec. 1904 Mise. Exp..................................... 48.68
    Dec. 1905 Mise. Exp..................................... 39.22
    Total.................................................... $802.30”
    The article then contained other charges that Merriman and Sterling had overpaid the tax collectors of Dixbn township; that these tax collectors had been made to pay the money back into the treasury of the people, and as the tax collectors were compelled to return the money illegally taken by them, the article asked why it was not just and right that Sterling and Merriman should also return the funds drawn by them in excess of their legal compensation for their services; and that if they were not satisfied with this amount they should not have sought the office, and Sterling should not seek it again.
    The second count of the indictment, besides the more general charging language, set out as the article published only the heading contained in the first article, namely, “Money Illegally Filched. Large Sums Found to Have Been Taken by Treasurers Merriman and Sterling.” There were in each count innuendoes applying the article to said Walter B. Merriman.
    Wm. Barge, Brooks & Brooks, E. E. Wingert and J. W. Watts, for plaintiff in error.
    C. H. Wooster, State’s Attorney, A. C. Bardwell and E. H. Brewster, for defendant in error.
   Mr. Justice Dibell

delivered the opinion of the court.

1. It is argued that the publication set out in the indictment does not charge Merriman with a criminal offense; that “filch” does not necessarily import a crime, and therefore it is not libelous per se; that the indictment should have charged whether that word was used with an innocent or criminal meaning, and that in the absence of such an allegation the court must construe the language in the harmless sense, and should hold that the pleader only intended to charge that it was used in an innocent sense. It is the established rule in this state that words brought into question in an action for slander or libel are to be taken in the sense which persons of common and reasonable understanding would ascribe to them; that is, in their ordinary or common acceptation. Nelson v. Borchenius, 52 Ill. 236; Barnes v. Harmon, 71 Ill. 609; Ransom v. McCurley, 140 Ill. 626. This doctrine has been followed by the Appellate Courts frequently, as ‘ex-ampies of which we cite Prussing v. Jackson, 85 Ill. App. 324, 332, and Harkness v. Chicago Daily News Co., 102 Ill. App. 162. What then is the common and ordinary meaning attributed to the word “filch”? There is an old case in Croke’s Elizabeth which holds that the words “a common filcher” are not actionable per se, and that authority is noted in the text books. Nevertheless, the English dictionaries show that the primary and ordinary meaning of the word is to steal; especially in a small, sly, underhanded manner; to pilfer. Roget’s Thesaurus of English Words gives as the chief synonyms of filch: “steal, thieve, rob, purloin, pilfer. ’ ’ The Standard Dictionary defines ‘ filch, ’ ’ “to steal, especially slyly and in small amounts; to pilfer.” For synonyms, it refers to the word steal, and gives these synonyms of “steal:” “abstract, common larceny, common theft, embezzle, extort, filch, pilfer, pillage, plunder, purloin, rob, swindle.” In the same connection it says, “the word 'filch is ordinarily applied to things of little value, but may apply to the most precious.” The idea of theft, of stealing, is in the word as commonly used. It is true that one dictionary gives as an incidental or remote meaning, “to take from another by a violation of trust or good faith.” That however is not the direct or usual acceptation of the term. It is argued that if it could ever have such a meaning, not implying a crime, then it is not actionable per se, and the intent to charge larceny should have been averred. We do not admit the soundness of this position, as applied to a case where the meaning which does not include a crime is not the natural and obvious meaning of the word as used by persons of ordinary understanding. If such a principle were applied, few words would be held actionable per se. We suggest two common examples. The word “steal” is given in the dictionaries not only in its chief meaning, “to-take and carry away feloniously, as the personal goods of another,” but also in at least three other meanings which do not involve the idea of crime. “Thief” has a secondary or figurative meaning which has no relation to crime. Yet it is clear that to call a man a thief, or to accuse him of stealing, is to use language actionable per se. The reason is that the common and ordinary acceptation and use of those words is in a sense embodying crime. The same suggestions apply to the word “filch”. In common use and acceptation it includes the idea of stealing, adding thereto the sense of slyness, and sometimes by taking small things. We are of opinion that it is not deprived of its ordinary meaning of a crime by using it in connection with the word “illegal” or with “large sums”. Our statute defines libel as, “A malicious defamation, expressed either by printing or by signs or pictures or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation, or publish the natural defects of one who is alive, and thereby expose him to public hatred, contempt, ridicule or financial injury.” We are of opinion that the averments of this indictment are sufficient under said statute, and under Clay v. People, 86 Ill. 147, Crowe v. People, 92 Ill. 231, and People v. Seeley, 139 Calif. 118. The indictment shows the heading first above stated as given in large letters, but that does not fully show the appearance at the head of the article, originals of which are in the record before us. The word “money” and the word “taken” at the head of said article are in very heavy black type, each letter being about an inch and three-eighths in length and from half an inch to three quarters of an inch in width; and the words “illegally filched” and the other words in said heading are about half an inch in height and the letters of proportionate width. The heading, containing the charge that Merrima.n had “filched” large sums of money, was therefore made very prominent and was obviously intended to attract special attention.

2. Section 179 of the Criminal Code enacts: “In all prosecutions for libel, the truth, when published with good motives, and for justifiable ends, shall be a sufficient defense.” So also reads section 4 of article 2 of the Constitution. It is contended that the record establishes such a defense. On the contrary, the record shows nothing to justify the allegation that Merriman filched or stole any money. The part of the article containing the most serious libel was therefore untrue. An examination of the record also shows that as to the moneys referred to in that part of the article directed against Merriman, there was no warrant for saying that there was any illegality in connection therewith. This indictment does not involve the truth or falsity of the charges against Sterling, and we therefore do not discuss them. We have already set out in the statement preceding this opinion that part of the article which enumerated the sums which Merriman was therein charged with having illegally drawn from the public funds amounting in all to $802.30. The proof shows that nearly all of said sum of $656.43 said to have been illegally taken by Merriman in 1903 from the county treasury, was paid by him for the publication of the assessment roll for that year. Section 29 of the act of 1898 for the assessment of property requires the county treasurer as ex-officio supervisor of assessments to cause a full and complete list of the assessments by townships to be published in some public newspaper in the county, and that where there is published in a township one or more newspapers of general circulation, the list for such township shall be published in one of the newspapers published in said township; and further, that “the expense of such printing and publication shall be paid out of the county treasury.” There were a number of such newspapers published in the different townships of Lee county, and Merriman distributed the publication among them as the law required. As he was commanded by law to cause the publication to be made, and did cause it to be made, and as the expense therefor was by law directed to be paid out of the county treasury, it cannot be said that Merriman, the county treasurer and county assessor and supervisor of assessments, paid this money illegally, even though he might have laid the bills before the county board prior to paying them.

There was embraced in this total of $802.30 alleged to have been illegally drawn by Merriman a small sum each year for extra clerk hire. The proof showed that before Merriman was elected to the office of county treasurer the county board adopted the following recommendations by its fees and salaries committee, to wit: ‘ ‘ That the county treasurer be allowed to employ extra clerk hire, if necessary, on account of the work imposed on the office of the said treasurer by his being ex-officio supervisor of assessments.” That order was never afterwards rescinded. There was uncontradicted proof that with the force in Merriman’s office it was impossible to get out the assessment list for publication in the different pages in the different townships within the time required by law. It appears to be the established construction of the constitution and the law in this state that where the compensation of a county officer and his clerk hire and the expenses of his office have been fixed by the county board in one gross sum before he takes the office, that allowance cannot be in any respect changed during the term of office of such officer. Brissenden v. County of Clay, 161 Ill. 216; Coles County v. Messer, 195 Ill. 540. Where, however, the compensation is fixed at one sum, and the clerk hire, or the clerk hire and other expenses, are fixed separately therefrom, in such case, while the compensation cannot be changed during the term, the county board has power to change the 'allowance for clerk hire and for other expenses. The county board cannot be compelled to make a change, and if it has not made a change, and refused to approve further expense made by the officer, he cannot collect therefor from the county. If the officer conceives the expense to be necessary, and incurs it without authority, he does so in the first instance at his own risk and expense. But if the county board afterwards approves the expenditure, it then becomes a valid county charge. In County of LaSalle v. Milligan, 143 Ill. 321, 330, the court said: ‘ ‘ The amount allowed for deputy and clerk hire and expenses of the office is largely in the discretion of the county board, and might be changed at any time as in its judgment the exigency of the public service demanded.” In Coles County v. Messer, supra, the court on page 545, said: “If the amounts are fixed separately, the compensation, aside from the expenses, cannot be changed during the official term; but the expenses may be changed from time to time by the county board as the necessities of the office may change.” In Whitmore v. People, 227 Ill. 453, 469, the court said: ‘ The cases above cited hold that when an amount for clerk hire and expenses has been fixed by the county board, the officer is not entitled to receive from the county anything for money actually expended for clerk hire in excess of the amount-allowed him by the county board for that purpose.” The court then quotes at length from Daggett v. Ford County, 99 Ill. 334, including the following language: “The power of fixing the amount of necessary clerk hire, etc., is devolved by the constitution on the county board as a fair and impartial tribunal, and it is to be supposed that they will perform the duty in good faith as it rests upon them under the constitution. Should it be found at any time that the board had committed an error in judgment, and not allowed an amount sufficient for necessary clerk hire, etc., the construction which we have heretofore adopted that the amount once fixed for necessary clerk hire, etc., when it is fixed separate from the allowance for personal services, is subject to be changed from time to time during the term of office as the board may see fit, will enable the board to afford any suitable relief in this regard, and it may be expected that this will be sufficient for the avoidance of any serious injustice being done to officers in any underestimating by the county board of the necessary expenses of their offices.” This construction of the constitution is carried out in the statute. Section 51 of chapter 53 of the Revised Statutes, relating to fees and salaries, requires each county officer who shall be paid in whole or in part by fees “to keep an account of the expenditures made by him on account of clerk hire, stationery, fuel and other expenses;” and make report in June and December to the county board; and the county board is required to carefully audit and examine every such report and ascertain the balance, if any, held by such officer, “after such expenses as said board may approve or allow,” and his salary, etc., have been deducted from the gross amount, and shall order the balance paid into the county treasury, etc. It will thus be seen that the statute contemplates that the county officer will make these expenditures before they are presented to the board for approval; but that if the board fails to approve and allow any expense which he has made outside of the sum previously fixed by the county board, it will be at his own risk and expense. The county board approved of the sum expended by Merriman for clerk hire, and it was therefore a legal and valid county charge. There was also a charge for the rent of a typewriter, and all the rest of the items entering into said sum of $802.30, alleged to have been illegally drawn, were small expenditures during the years 1903, 1904 and 1905, which the board approved and allowed. It is obvious that there are expenses in such an office, such as fuel, lights, pens, penholders, ink, paper and the various instruments and blanks necessary or proper for the conduct of the public business, that cannot always be fully foreseen and properly estimated in advance by the county board. The authorities above cited and the statute above referred to, confer full authority upon the county board to approve and allow expenditures for such matters in excess of the amount originally fixed by the board. The board approved each of these items, and they were all therefore valid county charges; and the accusation made against Merriman in the publication complained of that he had illegally taken money belonging to the county is not sustained.

But again, not only was the charge of filching and the charge of paying county money illegally not sustained, but further the truth, to be a sufficient defense, under the constitutional provision and statute above referred to, must be published with good motives. There was proof of statements made by plaintiff in error, both before and after this publication, which strongly tended to show that his motives in making this publication against Merriman were malicious. Plaintiff in error denied making these statements; but we must assume here that the jury believed the testimony that he made them. The publication complained of stated that these alleged illegal expenditures would appear from the records of the county board, but it failed to state the important circumstances that the county board had approved and allowed all these expenditures; and this omission had a tendency to impeach the motives with which the publication was made.

3. It is contended that plaintiff in error is not responsible for this article as published, and especially that he is not responsible for the libelous heading. The newspaper in which this publication was made, named “T. W. and E. C. Fuller” as the publishers, and plaintiff in error is the E. C. Puller there named. There was proof that he was editor in chief and half owner. There was proof by plaintiff in error that the paper was published by the Dixon Sun Company, of which company plaintiff in error was president and a director. He wrote the editorial part of the paper, and assisted in directing its policy, and he wrote the body of the article. H. E. Ward was the managing editor, and wrote the head lines of this article. Plaintiff in error gave the article to Ward for the purpose of having him write the headlines. After the article was printed, on October 31, 1906, plaintiff in error saw it, with the headings, and he directed this and other articles to be kept in type and printed a few days later as an insert; and when the postmaster would not accept the newspaper with those inserts, plaintiff in error took part in mailing and distributing over the county a large number of sheets containing this article with this heading. He himself mailed a part of the sheets containing this article. Proof of the second publication was competent as tending to show malice; and indeed the people were not obliged to rely upon the first publication, but could prove and rely for conviction upon the publication of the article at either time. The responsibility of plaintiff in error for the publication of the entire article, including the headlines, is fully established.

4. It is argued that the court erred in refusing to allow plaintiff in error to prove that the county board allowed Merriman a salary of $500 per year for his services as supervisor of assessments, and that he received that salary. This allowance was illegal. Foote v. Lake Co., 206 Ill. 185; Parker v. County of Richland, 214 Ill. 165. But this was not the illegal action to which this publication related. The article did not charge that Merriman had illegally received this salary as supervisor of assessments, but on the contrary it stated that that allowance to Merriman was lawful. Plaintiff in error was indicted for publishing of Merriman that he had “filched” certain specific sums. It was not a defense to show that Merriman had illegally received other money. But it is argued that this proof was competent under the second count, which only set out the headlines of the article. The whole article was in evidence, and it showed to what the headlines referred, and showed that they did not refer to the salary of supervisor of assessments. The proof was properly rejected.

5. Complaint is made of the ruling of the court upon the instructions. The court modified the fourteentk instruction -requested by plaintiff in error, by inserting the word “material” before the word “allegation”. The use of the word “material” in this connection seems not to have been erroneous or harmful under the rule laid down in Harvey v. C. & A. Ry. Co., 221 Ill. 242. The jury was very fully instructed, and the instructions clearly showed what allegations were material; and the jury could not have been misled by the use of that word in that instruction. We have examined the other objections to the instructions, and conclude that they are not well founded. We find no reversible error in the record. The proof appears to establish the guilt of plaintiff in error and the punishment is mild.

The judgment is therefore affirmed.

Affirmed.


author: Mr. Justice Thompson

text:
    John C. Schwerdt, Appellant, v. John H. Schwerdt, Appellee.
    Gen. No. 4,896.
    1. Contracts—when undertaking to maintain and support will not he enforced. An undertaking to support and maintain, founded only upon considerations of affection and gratitude, will not be enforced.
    2. Contracts—when void. A contract is void which lacks the element of mutuality.
    3. Parent and child—statute imposing obligation to support construed. Under the statute requiring children to support their infirm and indigent parents, a right of action does not accrue to the parent himself to enforce the act.
    4. Pleading—what allegation essential in actions upon contracts. In the absence of statutory enactments, it is necessary, in actions upon contracts, to allege a consideration, except in the case of contracts under seal, bills of exchange and negotiable promissory notes, all of which, by intendment, import a consideration.
    5. Pleading—what may be availed of by demurrer. A failure to state a consideration or the statement of an insufficient consideration may be taken advantage of by demurrer.

      Assumpsit. Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.
    Statement by the Court. This is a suit in assumpsit begun by John C. Schwerdt in the Circuit Court of Lake county against John H. Schwerdt. The declaration consists of a single count and alleges that on April 4, 1892, in the city of Chicago the defendant for a valuable consideration executed and delivered to the plaintiff, in lieu of a former agreement dated November 18, 1889, of similar import, a writing as follows:

      “It is hereby agreed between J. C. Schwerdt and John H. Schwerdt that this agreement is to take the place of other agreements heretofore made.
    It is agreed by and between the above parties that the said John H. Schwerdt shall pay to the said J. C. Schwerdt, father of said John H. Schwerdt, one dollar and fifty cents ($1.50) per week as his share towards his father’s support.
    It is further agreed that the said John H. Schwerdt shall pay all doctor’s bills which may be incurred by the said J. C. Schwerdt in case the latter should need medical services.
    It is further agreed that the said John H. Schwerdt shall pay all the necessary funeral expenses of the said J. C. Schwerdt. .
    It is further agreed that the said John H. Schwerdt shall pay on the day and date of this agreement fifty-eight dollars ($58.50) and fifty cents,, that amount being one dollar and fifty cents per week for nine months past.
    Dated Chicago, April 4, 1892.
    Johist H. Schwerdt.”
    Plaintiff alleges that the defendant fully complied with the said agreement until. July 13, 1900, since which time he has wholly neglected to comply therewith, since which time said payments are due and unpaid and there is now due plaintiff a large sum to wit, one dollar and fifty cents per week from July 13, 1900, and medical attendance and necessaries of the value of seven hundred and sixty-five dollars which complainant was compelled to incur by reason of the neglect of the defendant. Plaintiff avers that he is the father of the defendant and that he is of the age of eighty-five years, feeble in health and utterly destitute of all property except said agreement; and that by reason of the failure of the defendant to comply with his agreement plaintiff has been provided for by his grandson, Henry Detleff of Chicago. Plaintiff alleges that the consideration for said agreement and the prior agreement therein referred to was a mutual agreement entered into about fifteen years prior to this action, that the defendant should take out a policy of life insurance on the life of the wife of plaintiff, she being the mother of defendant, in the sum of five thousand dollars, which sum when collected, if plaintiff should survive his said wife, should be used towards the support of plaintiff during the remainder of his life; that said agreement was carried out by the taking out of said policy, and the said wife died one year thereafter, and defendant received the proceeds of said policy, the exact amount thereof plaintiff is not advised but believes to have been about five thousand dollars, and defendant retained said insurance for his own use. “Plaintiff avers the sum of seven hundred and sixty-five dollars of said agreement and for reasonable expenses for necessaries as above stated is wholly due and unpaid to this plaintiff to the damage of the plaintiff in the sum of seven hundred and sixty-five dollars and therefore he brings this’ suit.” The defendant filed a general demurrer which was sustained by the court. Plaintiff electing to abide by his declaration, judgment was rendered against him and he brings the case to this court by appeal.
    Edmund H. Smalley, for appellant-.
    Lauder, King & G-age and Challes O. Laudel for appellee; Challes E. Laudel and Challes H. King, of counsel.
   Mr. Justice Thompson

delivered the opinion of the court.

The appellant assigns for error that the court erred in sustaining the demurrer to the declaration. The suit is brought on an agreement in writing which is set forth in the body of the declaration. It is alleged that the agreement was for a valuable consideration, in that there was a mutual agreement that the defendant should take out a policy of life insurance on the life of the wife of plaintiff, she being the mother of the defendant, in the sum of five thousand dollars, which insurance when collected should be used toward the support of the plaintiff during the remainder of his life, and that the insurance had been collected. It is insisted on the part of both the parties to this controversy that a son has no insurable interest in the life of a parent. Guardian M. L. Ins. Co. v. Hogan, 80 Ill. 35; Guaranty E. L. Society v. Dyon, 79 Ill. App. 100. The policy was not taken out by either the plaintiff or his wife, but by the defendant. No right accrued to the defendant, and no detriment, forbearance, labor or service was suffered or performed by either the plaintiff or his wife. There was no mutuality in the agreement and hence no consideration for it. It is a nudum pactum and cannot be enforced. A promise founded upon considerations of affection or gratitude is a beneficence and cannot be the foundation for a legal action. Kirkpatrick v. Taylor, 43 Ill. 207; Williams v. Forbes, 114 Ill. 167. The payment of the -policy was a question between the insurance company and the defendant with which the plaintiff had no concern. Johnson v. Van Epps, 110 Ill. 551.

It is also argued by appellant that the declaration is good because the statute of Illinois imposes upon a son who is of sufficient ability the duty of supporting indigent parents. The declaration is not drawn upon that theory but is based entirely upon a nudum pactum. A declaration consisting of a single count based upon a contract in writing and upon an independent statutory duty would be double. At the common law-there is no obligation which imposes upon a child’the legal duty of maintaining an infirm, aged and destitute parent. People v. Hill, 163 Ill. 189. Under the statute requiring children to support their infirm and indigent parents a right of action does not accrue to the parent himself to enforce the act. The purpose of the act is to indemnify the public against the maintenance of paupers, and the only remedy given is in favor of the county for the use of the poor of the county. Mercer v. Jackson, 54 Ill. 397.

It is insisted that the defense of no consideration cannot be raised by a demurrer but that it must be raised by a special plea. In the absence-of. statutory enactments to the contrary, it is necessary in actions upon contracts to allege a consideration, except in the case of contracts under seal, bills of exchange and negotiable promissory notes, all of which by intendment of law import a consideration, and a failure to state a consideration or a statement of an insufficient consideration may be taken advantage of by demurrer. 4 Ency. of Pl. & Pr. 928; 1 Chitty on Pl. 300; Stephens on Pl., 96; Hulme v. Renwick, 16 Ill. 371; Hite v. Wells, 17 Ill. 88. Appellant particularly set forth, what he claimed was the consideration, and from the allegation it clearly appears there was no consideration for the agreement. The demurrer was properly sustained, and the judgment is therefore affirmed.

-Affirmed.


text:
    Fred W. Fraser, Appellee, v. Harper House Company, Appellant.
    Gen. No. 4,904.
    1. Innkeepers—care required of, for personal safety of guests. A proprietor of a hotel, in which a passenger elevator is operated for the convenience of his guests, is held to the same care and diligence for the safety of his guests in the elevator, as a railway is required to use for the safety of its passengers.
    2. Contributory negligenoe—when elevator passenger not guilty of. A guest of a hotel, riding in an elevator therein, cannot he held guilty of negligence when he assumes an attitude while so riding which the construction of the elevator invites.
    3. Instructions—when not erroneous in permitting jury to consider “loss of time, if any." An instruction in an action for personal injuries which permits the jury to consider as an element of damage “loss of time, if any,” is not erroneous if based even upon slight evidence tending to show that the plaintiff suffered loss of time as a result of the injury complained of.
    4. Verdicts—when not disturbed as excessive. The Appellate Court will not set aside a verdict as excessive if the same opportunities enjoyed by the trial court in determining the propriety of such verdict are not afforded to it, as, for instance, the exhibition of the injured member, in an action for personal injuries.
    Action in case. Appeal from the Circuit Court of Rock Island county; the Hon. William H. Gest, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinon filed March 11, 1908.
    Seable & Marshall, for appellant.
    H. A. Weld and Hugh H. Hadley, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action on the case brought by Fred W. Fraser against the Harper House Company. The declaration contained three counts alleging in different wáys that the plaintiff was a guest for hire at a hotel conducted by the defendant, in which was a passenger elevator, and that while a passenger on said elevator he was injured by the negligence of the defendant, in that said elevator at a side other than that at which plaintiff entered was in an unsafe condition, unguarded and unprotected except by a narrow wooden bar; that said elevator was carelessly and negligently constructed and operated, and that it was the duty of defendant to provide a §afe means to guard passengers from injury from contact with the walls of the shaft, and to enclose the cage, but that the defendant negligently failed to provide suitable guards and to warn the plaintiff of the danger; whereby plaintiff, in the exercise of due care, was injured, etc. Plaintiff recovered a verdict and a judgment for $750, from which the defendant appeals.

The proof shows that the appellee is a commercial traveler; that on February 16, 1906, he engaged a room on the third floor at the hotel of the appellant, the Harper House Company, in Bock Island; that there is in the hotel a passenger elevator about six feet square, with two entrances the width of an ordinary door upon opposite sides of the cage; that one of the entrances is on the south side from the lobby of the hotel and is closed by a grill door, such as is ordinarily seen in elevators; that the other entrance from the north is the ladies’ entrance and connects with a passageway from Second avenue; this is not closed by a door, but there is a wooden bar five or six inches wide horizontally across the opening about three feet from the floor; the rest of the elevator is enclosed by an iron grill work and is lighted by an electric light in the dome of the cage; that building walls constitute the north and east sides of the shaft, and the other two walls are ordinary grill work; that the elevator is operated by the employes of the hotel; that the appellee had been at the hotel from three to five times before; that on the evening of February 16th appellee entered the elevator from the lobby of the hotel, walked to the opposite side of the elevator, and, leaning or standing against the bar with his hand on it, permitted his elbow to project some five or six inches beyond the cage into the shaft, and as the elevator went up his elbow came in contact with a slight projection on the wall of the shaft and thereby received a fracture of the end of the radius of the right arm at the wrist, known as a Colles fracture; that the appellee was incapacitated from his work seven or eight weeks because of the injury, but his salary was paid him during the time he was not at work; that he paid $48 for medical services, suffered intense pain several weeks, and still has pain during changes of the weather; that the arm is somewhat deformed, is weak" and its use is impaired.

The assigment of error most strenuously relied upon is that the court erroneously refused to instruct the jury to find for the defendant at the close of all the evidence. The basis for this contention is the claim that the appellee did not prove he was in the exercise of ordinary care, and that no negligence was proved on the part of appellant. A proprietor of a hotel in which a passenger elevator is operated for the convenience of his guests is held to the same care and diligence for the safety of his guests in the elevator as a railway is required to use for the safety of its passengers. In Hartford Dep. Co. v. Sollitt, 172 Ill. 225, it is said: “Persons operating elevators are carriers of passengers, and the same rules applicable to other carriers of passengers are applicable to those using elevators for raising and lowering persons from one floor to another in buildings. It is a duty of such carriers of passengers to use extraordinary care in and about the operation of such elevators, so as to prevent injury to persons therein. ’ ’ The law requires the highest degree of care to be exercised by the carrier that is consistent with the efficient use of the means and appliances adopted. Appellee was a comparative stranger in the elevator, having been at the hotel only a few times, and had not carefully inspected the elevator. He went into it, walked to the opposite side and leaned against the cross bar, with his right hand on this cross bar, and the next thing he knew, as is stated by counsel for appellant, “Appellee’s elbow came in contact with a slight projection on the wall of the shaft.” It cannot be imputed to a passenger as negligence that he assumes while riding an attitude to which the construction of the car invites or tempts him. C. & A. R. R. Co. v. Pondrom, 51 Ill. 334; Chicago City Ry. Co. v. Rood, 62 Ill. App. 550. Counsel for appellant argue that the case of Beidler v. Branshaw, 200 Ill. 425, and some other elevator cases cited by them, are parallel with this case and conclusive that appellee was not in the exercise of ordinary care. In each case cited by appellant the person injured was an employe in the building when he was injured and knew and was familiar with the elevator and its surroundings; and some o'f these cases were concerning combination freight and passenger elevators. Knowledge .of the surroundings is notice of the dangers which might naturally be anticipated therefrom. That element is entirely lacking in this case. That appellant was negligent in operating an elevator constructed as this was, we think clearly appears, and the question of the care of appellee was for the jury to decide from all the evidence and facts in proof. The trial court approved of the verdict, and we cannot say that the position assumed by appellee was under the circumstances negligence per se.

It is assigned for error that the court gave contradictory instructions, in that the jury were instructed for the appellee that “loss of time” was an element of damage, and that an instruction for appellant told the jury there could be no recovery for loss .of time when he drew his salary for that time. The instructions are entirely consistent with each other. Appellee’s instruction did not assume there had been loss of time, but told the jury, in awarding damages, to take into consideration “loss of time, if any,” thus leaving the question of fact to the jury. It may be there was but slight proof to base appellee’s instruction on, but appellee introduced some proof tending to show that he lost other time subsequent to the time he was under the doctor’s care, and testified it took longer to do his writing. There was no error in not giving appellant’s refused instructions. Numbers 28 and 29 were in the eighth given instruction and No. 26 was properly refused, because of the argument in it.

It is insisted the judgment is excessive. We have not the same information the trial court and jury had, to whom the arm was exhibited. The proof in the record is that the arm is crooked, weak and still painful at times. We find no reason for interfering with the judgment. It is therefore affirmed.

Affirmed.


text:
    Laban Hayward, Administrator, Appellee, v. S. S. Sencenbaugh, Appellant.
    Gen. No. 4,913.
    1. Corporations—what law governs stockholders’ liability. The liability of a stockholder is governed by the law of the domicile of the corporation.
    2. Corporations—when stockholders’ liability discharged. Under the law of Kansas, a stockholder, with respect to his statutory liability, stands in the relation of a surety, and is discharged with respect to such liability as to a demand from which the corporation is relieved by virtue of the Statute of Limitations.
    3. Comity—how statutes of sister state construed. Where the statutes of a sister state are a part of the contract involved in the litigation, the construction which will be given by the courts of this state to such statutes is the construction which has been given thereto by the Supreme Court of such sister state.
    4. Evidence—how laws of sister state established. The law of a sister state is a question of fact, to be proved the same as any other fact by the introduction of evidence, and the construction of such law may be proved by the printed reports of adjudged cases.
    Assumpsit. Appeal from the Circuit Court of Kane county; the Hon. Linus C. Ruth, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed April 14, 1908.
    S. N. Hoover and John A. Bussell, for appellant.
    Baymond & Newhall, for appellee; Aldrich & Worcester, of counsel.
   Mr. Justice Thompson

delivered the opinion of the court.

The Aurora Mining Company is a corporation organized under the laws of Kansas September 8, 1897, for the purpose of mining lead and zinc, with its place of business at Galena, Kansas. After the organization of the" corporation it purchased a mining lease in connection with a concentrating mill, and on September 27, 1897, issued in payment for the lease and mill $25,000 of bonds payable at the Galena National Bank at Galena, Kansas; $10,000 of the bonds became due in one year and $15,000 in two years.

The corporation paid the bonds maturing September 27, 1898. When the bonds due in two years matured it had practically exhausted the supply of ore on its leased land, and sometime thereafter, having no assets and being insolvent, it suspended business. Sencenbaugh, the appellant, contends that the corporation suspended business in April, 1900, while Hayward, the appellee, contends it did not suspend until July, 1901. William B. Bussell died in March, 1901, and the appellant was appointed administrator of his estate. Bussell and Sencenbaugh, from prior to the organization of the corporation up to the time of Bus-sell’s death, and Sencenbaugh since that time, were residents of Kane county, Illinois, where substantially all the stockholders and directors appear to have resided. At the time the corporation suspended William B. Bussell, appellee’s intestate, was the owner of $1,800 of the capital stock of the corporation and $3,000 of the bonds last maturing; Sencenbaugh, the appellant, was the owner of $5,000 of the capital stock of the corporation and $1,000 of said bonds. In 1903 the appellee began a suit in the Circuit Court of Kane, county, Illinois, against the corporation; that suit was by a change of venue transferred to DeKalb county, where plaintiff obtained a judgment on April 17, 1906, on the bonds of the corporation owned by the Bussell estate.

This suit was brought in assumpsit in the Circuit Court of Kane county April 24, 1906, against Sencenbaugh upon the same bonds that judgment was recovered against the corporation in DeKalb county. The declaration contains one count and avers the organization of the Aurora Mining Company in the County of Cherokee in the State of Kansas, under a statute entitled “An act concerning corporations,” in force October 31,1868, and all acts amendatory thereof; that it is not a railway, religious or charitable corporation; that at the time the liability was incurred there was in force in the State of Kansas a provision in the state constitution that “Dues from corporations shall be secured by individual liability of the stockholders to an additional amount equal to the stock owned by each stockholder”; that there was also in force a certain statute providing that a corporation is dissolved, first, by expiration of the time limited in its charter; second, by a judgment of dissolution by a court of competent jurisdiction, but any corporation shall be deemed to be dissolved for the purpose of enabling any creditor of such corporation to prosecute suits against the stockholders to enforce their individual liability, if it be shown that the corporation has suspended business for more than one year; and further that if any corporation created under this or any general statute be dissolved, leaving debts unpaid, suits may be brought against any person or persons who are stockholders at the time of such dissolution without joining the corporation in such suit, and if judgment be rendered and execution unsatisfied, the defendant or defendants may sue all who were stockholders at the time of such dissolution for the recovery of the portion of such debt for which they were liable; and further, if any stockholder pay more than his due proportion of any debt of the corporation, he may compel contribution from the other stockholders by action; and further, no stockholder shall be liable to pay the debts of the corporation beyond the amount due on his stock and an additional amount equal to the' stock owned by him'; that the Supreme Court of Kansas, being the court of last resort of said state, has construed the said provisions holding that each stockholder is severally and individually liable to such creditor of such corporation in an additional amount equal to the amount of his stock, to be recovered in an action brought by such creditor directly against such stockholders without joining said corporation or other stockholders as defendants; that the Aurora Mining Company on September 27, 1897, at the County of Kane, made its six bonds in the sum of $500 each and delivered them to William B. Bussell, and then and there became liable to pay said Bussell $3,000 at G-alena, Kansas, on September 27, 1899, with interest at 6 per cent., etc.; that Sencenbaugh was a stockholder in said corporation, and was the owner of fifty shares of the par value of $100 each, and had paid no money on his original subscription for said stock, and the full amount of the par value is now due and owing from said Sencenbaugh; that the Aurora Mining Company suspended business July 1, 1902, and was then insolvent and without assets, and has nob done any business since, by means whereof it became dissolved; that William B. Bussell at the time of his death and for ten years prior thereto was a resident of Aurora; that plaintiff is the administrator of said Bussell; that Sencenbaugh is and for ten years next prior to the beginning of this suit was a resident of Aurora and has not during any portion of said time been a resident of or owned property in the State of Kansas, and that the liability of said defendant as such stockholder, by the laws "of Kansas and the decisions of its court of last resort, exists as a transitory action.

The defendant filed a number of special pleas. Replications were filed traversing the pleas. The case was tried by the court without a jury. No proposition , of law was submitted by either party. The court rendered judgment in favor of the plaintiff for $1,610.30 and the defendant prosecutes this appeal.

The only question before this court is, can the judgment be sustained upon the evidence. The fifth plea avers that the Aurora Mining Company is a Kansas corporation; that the stock because of which the suit is brought was subscribed for and issued in Kansas, and the liability is subject to the laws of Kansas, and the bonds described in the declaration were issued and payable in Kansas, and at the time the stock and bonds were issued there was in force a statute of Kansas providing that.civil action, other than for the recovery of real property, can only be brought within .the following periods and not afterwards: “First: Within five years: An action upon an agreement, contract or promise in writing. Second: Within three years: An action upon a contract not in writing, express or implied: An action upon a liability created by statute, other than a forfeiture or penalty”; that there was and is in force a public statute of Illinois which provides that where a cause of action shall arise in a state out of this state, and by the laws thereof an action thereon cannot be maintained by reason of the lapse of time, an action thereon cannot be maintained in this state. It is averred that the liability sued for arose in Kansas and is a liability created by the statute of Kansas, and is other than a forfeiture or penalty, and did not accrue within three years prior to the beginning of this suit, and that the Supreme Court of Kansas, which is the court of last resort, has passed upon the foregoing provisions and holds that the liability of the stockholders is only such as the statute creates, and that a stockholder is only liable for debts of a corporation upon which at the time an action can be maintained against the corporation. It is averred that the cause of action did not accrue within five years, and the same is barred by the laws of Kansas and Illinois. The sixth plea is similar to the fifth, except that it sets up the Kansas limitation of three years upon a statutory liability. These pleas were simply traversed, there being no replication confessing and avoiding the averments of the pleas.

The Aurora Mining Company, a corporation organized under the laws of Kansas, with its principal office at Galena, Kansas, on September 27, 1897, issued the $3,000 of bonds sued on in this case at Galena, Kansas, where the bonds were due and payable on September 27, 1899. The liability of a stockholder is governed by the law of the domicile of the corporation. 26 Am. & Eng. Ency. of Law (2d ed.) 914. It is the province of the Supreme Court of a state to interpret its organic laws as well as its statutes. The statutes of Kansas being a part of the contract involved in this case, we must resort to the construction given to that statute by the Supreme Court of Kansas to determine its proper interpretation and effect. Fowler v. Lamson, 146 Ill. 472; Fairfield v. County of Gallatin, 100 U. S. 47. The Supreme Court of Kansas holds that: “The stockholder standing in the relation of surety to the corporation, his liability must cease when the liability of the corporation no longer exists. Manifestly, and in conformity to well-recognized legal principles, no action can be maintained against a surety unless the liability of the principal exists at the time the action is commenced.” Pacific Elevator Co. v. Whitbeck, 63 Kan. 102. Where a note is executed and made payable in a foreign state, the cause of action arises there, and a suit on the note brought in Illinois must be begun within the time limited by the laws of the foreign state for bringing suit. Section 20, chapter 83, Hurd’s Statutes of Illinois; Collins v. Manville, 170 Ill. 614. By the laws of Kansas which were pleaded and proved a suit must be brought upon a written instrument executed in that state within five years from the time the cause of action accrues. A suit against the Aurora Mining Company under the pleading and proofs could not be maintained on the bonds sued on in this case after September 27, 1904. Under the Kansas law the defendant stood in the relation of a surety for the corporation. A surety is discharged from liability when the right of action against the principal debtor is barred. Auchanpaugh v. Schmidt, 70 Iowa 642; Bridge v. Blake, 106 Ind. 332; Kimble v. Cummins, 3 Met. (Ky.) 327; State v. Blake, 2 Ohio St. 147; Pacific Elevator Co. v. Whitbeck, supra.

The fourth and seventh pleas aver in substance, but in different language, that the bonds set out in the declaration were issued by the Aurora Mining Company, a Kansas corporation, and that the stock mentioned in the declaration was subscribed for and issued in Kansas; that in 1903 the plaintiff began suit against the Aurora Mining Company in the Circuit Court of Kane county, Illinois; that that suit was by change of venue taken to DeKalb county, Illinois, where final judgment was rendered in favor of the plaintiff against the Aurora Mining Company on the identical bonds set out in the plaintiff’s declaration herein; that the said bonds and all liability thereon became merged in said judgment; that the Supreme Court of Kansas holds, in construing the statute of said state in relation to a stockholder’s liability, that when judgment is entered on a bond or note, such bond or obligation loses all force and vitality, and cannot be made the basis of any further action or suit, etc. These pleas were simply traversed by the replications.

The evidence for the appellee shows that the stockholder’s liability sought to be enforced is that of a stockholder in a Kansas corporation, and the indebtedness .sought to be collected is that incurred by the issuance of the identical bonds upon which a judgment had been rendered in the Circuit Court of DeKalb county against the Aurora Mining Company on April 17, 1906, and that this suit was begun April 24, 1906. The law of a sister state is' a question of fact to be proved, the same as any other fact, by the introduction of evidence (Chumasero v. Gilbert, 24 Ill. 293; Dearlove v. Edwards, 166 Ill. 619), and the construction of such law may be proved by the printed reports of adjudged cases (5 Ency. of Ev. 830; McDeed v. McDeed, 67 Ill. 545). The statute of Kansas concerning the liability of stockholders in a corporation and the decisions of the Supreme Court of Kansas in the cases of Price v. Bank, 62 Kan. 725, and Remington Paper Co. v. Hudson, 64 Kan. 43, were admitted in evidence without objection. These cases hold that where a judgment is rendered on the obligations of a corporation, the obligations are merged in the judgment and lose all force and vitality and cannot be made the basis of a recovery. The same rule is held to be the law in this state (Hart v. Seymour, 147 Ill. 620), and the fact that the bonds were in judgment against the sole maker, the Aurora Mining Company, before this suit was begun, was a defense to the cause of action stated in the declaration under the general issue which was also filed. It is not necessary to refer to the other questions argued. The pleas answering the declaration and being proved, the judgment cannot be sustained, and it is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    C. L. Aygarn, Appellee, v. Rogers Grain Company, Appellant.
    Gen. No. 4,900.
    1. Corporations—when liable for vindictive damages for wrongful act of agent. A corporation may be liable for vindictive damages for the wrongful act of its agent, perpetrated while ostensibly discharging duties within the scope of its corporate purposes.
    2. Practice—effect of written motion for new trial. Points not specified in a written motion for new trial, which sets out the specific grounds therefor, are waived and will not be considered on review.
    3. Instructions—must not give undue prominence to particular fact. An instruction is properly refused which is calculated to direct the attention of the jury to a particular circumstance and thereby give undue prominence to an inconclusive fact.

      4. Appeals and ebbors—when propriety of refusal of instruction will not he considered. Unless all the instructions given for the appellant are contained in the abstract, it will be presumed that the refused instructions were embodied in those given.
    Action on the case. Appeal from the Circuit Court of Livingston county; the Hon Geobge W. Patton, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.
    Rehearing denied April 15, 1908.
    W. C. Graves, for appellant.
    E. A. Simmons, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action on the case brought by C. L. Aygarn, appellee, against the Rogers Grain Company and John A. Blue, appellants, to recover damages claimed to have been sustained by appellants wilfully and wantonly appropriating a freight car which had been placed at the disposal of appellee by the Illinois Central Railroad on its sidetrack at Rooks Creek station. It was before this court in Aygarn v. Bine, 118 Ill. App. 393. Upon a second trial the jury returned a verdict finding both defendants guilty, and assessing plaintiff’s damages at $100. A motion for a new trial, with the reasons therefor in writing, was made and overruled, judgment rendered on the verdict, and the Rogers Grain Company appeals.

“Appellant contends that there is no evidence in this record of any bona fide actual damages to the plaintiff, and that even if the actual damages shown were bona fide, they were not large enough to warrant a verdict of $100, except upon the theory that vindictive damages were allowed.” The evidence discloses that the Rogers Grain Company has elevators at several railroad stations in Livingston comity, Rooks Creek being one of the stations at which it has an elevator. John A. Bine was the agent of the Rogers Grain Company at Rooks Creek. Aygarn was a grain dealer engaged in buying and shipping grain at Books Creek, but did not have an elevator at that place, the grain he bought being shoveled into the cars from wagons. He had bought from Gr. W. Potter 2,000 bushels of corn, to be delivered about noon on November 27, 1903, and had engaged two cars from the railroad for that day. The railroad company furnished only one car, and placed it on the sidetrack three to five rods east of appellant’s elevator. The proof is that Blue moved the car to the elevator and loaded it with grain belonging to the Bogers Crain Company, and that before he did that he had been told by a party delivering grain to appellant that “that car is for Mr. Aygarn,” and Blue thereupon asked if Potter had sold his corn to Aygarn. Blue claims he did not know Aygarn had any order in for cars, and. he thought it was a car set out for the grain company, yet he says about twelve o’clock C. L. Aygarn came and “wanted to know if I was loading that car. I said ‘I am,’ and he says ‘I demand that car.’ I don’t think I said anything, just kind of grinned a little.” The evidence reasonably supports the conclusion that Blue took the car knowing it was set out for appellee.

It is contended that appellee only proved that he sustained actual damages to the amount of $24.25, and that exemplary damages cannot be allowed against the grain company for the acts of its agent Blue. The evidence shows that Blue was its general agent in charge of its elevator at Books Creek, buying and shipping grain for appellant. The act of Blue in shipping appellant’s grain was within the scope of his agency, and the rule is that a corporation may be liable for vindictive damages for the wrongful act of its agent, perpetrated while ostensibly discharging duties within the scope of its corporate purposes. St. Louis, Alton & C. R. R. Co. v. Dalby, 19 Ill. 353; Singer Mfg. Co. v. Holdfodt, 86 Ill. 455; Franklin Life Ins. Co. v. People, 200 Ill. 619; 7 Am. & Eng. Ency. of L. (2d ed.) 834. The knowledge of the appellant’s agent that the car was set out for Aygarn, and the appropriation of the car to appellant’s use, were the knowledge and act of appellant. The evidence tends to show that the taking of the car was a wilful and wanton disregard of the rights of Aygarn, with the purpose of preventing him from shipping from that point, and to deprive that vicinity of a rival grain buyer. Aygarn was compelled, because of the loss of the car taken by appellant, to haul in wagons from Books Creek to Pontiac the grain he would have loaded into it. If such were the facts, the verdict and judgment are not excessive.

It is assigned for error and argued that the court erred in giving five instructions given at the request of appellee and in instructing the jury regarding punitive damages. The appellant in its written motion for a new trial gave the reasons in writing on which its motion was based. It does not amongst such reasons assign the giving of erroneous instructions for plaintiff. While it is true that errors in giving or refusing instructions, when exceptions have been properly taken, are saved without a motion for a new trial (Ill. Cent. R. R. Co. v. O’Keefe, 154 Ill. 508), still the rule is firmly established that when a motion for a new trial is made, and the points relied on stated therein, all other points are thereby waived. Chicago City Ry. Co. v. Smith, 226 Ill. 178; Kehl v. Abram, 210 Ill. 218; I. C. R. R. Co. v. Johnson, 191 Ill. 594; Hintz v. Graupner, 138 Ill. 158. The rule is applied in this court that appellant cannot raise any questions here that it did not raise in the trial court.

Appellant assigns for error the refusal of the court to give the twenty-fifth instruction asked by it. The instruction is, “that you must look alone to the evidence bearing upon the question as to where the Illinois Central Bailroad Company considered its team track on that date and the Bogers Grain Company, and not what C. L. Aygarn or the farmers may have considered the team track at that time.” The instruction was properly refused, as it was calculated to direct the attention of the jury to a particular circumstance, and thereby give undue prominence to an inconclusive fact. If the instruction had been proper, the abstract, under the rules of this court, is insufficient to present the error relied on. This is the only instruction asked on behalf of appellant that is printed in the abstract, while the record shows ten were given at its request. Unless all the instructions given for appellant are contained in the abstract, it will be presumed that the refused instructions were' embodied in those given. P., C., C. & St. L. Ry. Co. v. Smith, 207 Ill. 486; McGinnis v. Gale, 36 Ill. App. 317; Downey v. Hopkins, 43 Ill. App. 542. Finding no error, the judgment is affirmed.

Affirmed.