text:
    Christ Krieger, Appellee, v. Aurora, Elgin & Chicago Railroad Company, Appellant.
    Gen. No. 5,067.
    1. Instructions—when peremptory properly denied. A peremptory instruction is properly denied if the evidence is conflicting and there is no clear preponderance either way.
    2. Instructions—when inaccuracy as to exercise of ordinary care cured. An instruction if subject to the criticism that it limits the exercise of ordinary care to the precise time of the accident, may be cured by other instructions contained in the series which require the exercise of ordinary care both before and at the time of the injury.
    3. Instructions—when upon question of negligence properly refused. An instruction which directs attention to particular acts as showing or tending to show the exercise of care, is properly refused.
    Action in case for personal injuries. Appeal from the Circuit Court of Kane county; the Hon. Linus C. Ruth, Judge, presiding.
    Heard in this court at the October term, 1908.
    Rehearing denied April 21, 1909.
    Affirmed.
    Opinion filed March 24, 1909.
    Hopkins, Peppers & Hopkins, for appellant.
    Botsford, Wayne & Botsford and Fisher & Mann, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is a suit in case brought by Christ Krieger, appellee, against the Aurora, Elgin & Chicago R. R. Co., appellant, to recover for personal injuries sustained by appellee on November 21,1904. There was a verdict and a judgment for $3,500 and the defendant appeals.

The appellant operates a third rail electric railroad in Kane county. The declaration charges the appellant with carelessly and improperly managing a motor car and alleges due care on the part of appellee. The appellant assigns for and contends there was error in the refusal of the trial court to direct a verdict of not guilty and in the giving of the first instruction given at the request of the plaintiff and in the refusal to give an instruction asked by the defendant. The evidence shows that the accident occurred at the Clintonville sub-station of appellant. At that place the trade of appellant runs north and south. A public highway sixty-six feet wide running east and west crosses the track. On the west side of the main track and .loutli of the public highway is the power house and substation of appellant which is a building thirty-six feet east and west by fifty-seven feet north and south. This building is located fifteen feet west of the track and sixty-three feet south of the public highway.

The evidence also shows that there was a high 'embankment of gravel on the right of way south of the highway and on the west side of the track, extending from the highway south in the neighborhood of between six hundred to one thousand feet. This bank with the power house prevents travellers coming from the west on the highway seeing trains coming from the south except for a space of about twenty feet just south of the power house where there is a break in the gravel bank. The evidence is conflicting as to whether the top of a car could be seen over this embankment or not but a car could be seen passing this open space of twenty feet south of the power house. On the day of the accident and for two days prior thereto the appellee, whose occupation was that of a teamster, with two other teamsters was hauling stone from a quarry in South Elgin over this crossing to the city of Elgin. The accident occurred about twelve o’clock, noon, and he had a load of over 4,000 pounds of stone on his wagon.

Andrew Anderson, one of his fellow teamsters, was driving a team with a load coming from the west. The appellee with his team and wagon was driving behind Anderson. The evidence is conflicting as to the distance between the Anderson wagon and the appellee’s horses; some of the witnesses say there was a space of eight feet and others fifteen to thirty feet between the Anderson wagon and appellee’s horses. The other teamster was behind appellee. As Anderson was crossing the tracks he saw a car coming. Appellee testified that as they came to the crossing he looked both ways and did not see anything or hear anything whistle. The proof is that a train approaching from the south cannot be seen by a person driving a team from the west until the person gets within fifteen feet of the west rail of the track. Appellee also testified that he had to get so close to the track that the horses’ forefeet would be on the track before he could see down the track south; while appellant’s testimony is that a teamster could see down the track eighteen feet from the rails.

Appellee testified that he looked and listened after he got to the gravel bank before he got on the track, and that he did not see or hear anything, and just as his horses were on the trank he saw the car coming down grade; that he whipped his horses, but the car came so fast that it hit his hind wheel; that Anderson, the forward teamster, held his whip up and made a signal to him, but appellee was on the track then; that appellant gave no warning of any kind; that the car was running “just like lightning”, “sixty miles an hour”. The other teamsters testified to the great speed of the car and that they heard no whistle or gong, and the forward teamster said he did not see the car until he was on the track and appellee was ten or twelve feet behind him. On the other hand there was proof on behalf of appellant that the whistle was blown, and that the first teamster and appellee whipped their horses to get across. The motorneer of appellant testified that he blew the whistle for a road crossing half a mile south of the Clintonville crossing, and then he blew a station whistle and blew for the Clintonville crossing; that when he was half way between the two crossings he saw the first stone wagon crossing the track and as he saw the first team drive on the track he blew the danger whistle and applied the air; and when he saw that it was going to get over he released the air; and then he saw the other team and he again blew the danger whistle and applied the air and reversed the current, and about that time he struck the wagon, after which the car ran about three hundred feet and then jumped the track and stopped.

It is apparent from the evidence of the motorneer that this is a very dangerous crossing for travelers coming from the west, with trains approaching from the south, because of the power house and the gravel bank which are close to the track and the bank extends to the public highway. The motorneer did not see the second team until the first team was across or he would not have released the air, and the teams were close together. If this car, in a place where it was concealed from the sight of appellee, was run at between sixty and seventy miles an hour as some of the evidence tends to show, the question of whether it was carelessly and improperly driven and managed was a proper question to be submitted to the jury. The proof is that these teamsters all looked and listened as they approached the track and none of them heard or saw anything to advise them of the approach of the car, and we cannot say that they were not in the exercise of ordinary care. With the heavy loads they had, their teams would move very slowly and there apparently was no way when the horses got close to the track that they could turn out. The team being close to or on the track before a car could be seen, we cannot say that the appellee did not use ordinary care. The evidence is conflicting, with no clear preponderance either way, and we think the questions of fact were properly left to the jury and that there was no error in refusing the peremptory instruction.

The instruction given for appellee which appellant insists is erroneous, is: “The court instructs the jury that if you believe from a preponderance of the evidence that plaintiff has proved his case, as laid in his declaration, then you will find the issues for the plaintiff.” The contention of appellant is that in order to sustain a recovery the appellee must aver and prove that he was in the exercise of ordinary care at and before the time of the injury. The averment of the declaration is that while the “plaintiff with all due care and caution was then riding across the said railroad” etc. It is insisted that riding across the railroad limits the time to the particular moment when he was on the track.

Several instructions given both on the part of appellant and appellee specifically told the jury that before they could find appellant guilty they must believe from a preponderance of the evidence that the appellee at and before the time of the injury was in the exercise of ordinary care. There was also an instruction given to the jury that the instructions “constitute one connected body and series and should be so regarded and treated by the jury,” and that they should not detach or separate any instruction from the others. This latter instruction, in telling the jury that the first instruction should be considered together with the others, overcomes the criticism of appellant, if it was liable to such criticism. This instruction complained of, however, has been approved in a number of cases. Mt. Olive Goal Co. v. Radmacher, 190 Ill. 538; Chicago & Joliet Ry. Co. v. Patton, 219 Ill. 214; Fraternal Army v. Evans, 215 Ill. 629. There was no error in giving the instruction. The only other instruction concerning which any question is made is an instruction offered by appellant which was refused. The instruction told the jury that if they believed that the plaintiff suddenly and unexpectedly drove upon the track before the moving car, and that the servants of the defendant in charge of such car did all that could be done in the exercise of ordinary care at and before the time of the injury to avoid the collision, then the plaintiff could not recover.

This instruction was properly refused, as it pretended to recite the facts which the jury might find, and made no reference to the unusual and dangerous rate of speed on a down grade, or to the question of warning signals which were matters in controversy. The instruction was objectionable in that it particularly directed the attention of the jury to particular acts of the employes of appellant. The proposition of law in the refused instruction was equivalent to saying that if the appellant was not guilty of negligence the appellee cannot recover, and that proposition was given in no less than four other instructions given at the request of appellant. There was no error in refusing this instruction. These are the only errors assigned which have been presented for our consideration. There is no error and the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Thompson

license: Public Domain

text:
    Jacob Hamblock, Appellee, v. Clipper Lawn Mower Company, Appellant.
    Gen. No. 5,088.
    1. Corporations—status of preferred stock. Preferred stockholders are not creditors of the corporation and are entitled to no dividends except as declared by the directors from profits earned by the corporation.
    2. Corporations—by whom, dividends declared. The directors, and not the stockholders are empowered to declare dividends.
    3. Corporations—what essential to recovery of dividends. A preferred stockholder cannot recover a dividend from a corporation unless he establishes the fact that the directors have duly declared such dividend.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Lee county; the Hon. R. S. Farrand, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed March 24, 1909.
    E. L. Sharer and E. E. Wingert, for appellant.
    Brooks & Brooks, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Jacob Hamblock, appellee, brought suit against the Clipper Lawn Mower Company, a corporation, December 10, 1907, before a justice of the peace of Lee county to recover money claimed to be due on a 6r/. dividend on twenty shares of preferred stock of the company. An appeal from the judgment before the justice was taken .to the Circuit Court, where the case was heard without a jury and judgment rendered in favor of plaintiff for $120. The defendant corporation appeals to this court.

No proposition of law was submitted to the court, and the only question before us is the sufficiency of the evidence to support the judgment.

The evidence shows that the Clipper Lawn Mower Company is a corporation organized under the laws of the state of Illinois. Appellee is the owner of $2,000 par value of the preferred stock of the appellant which he received in exchange for some tools and machinery. The certificate of stock which was offered in evidence certifies that Jacob W. Hamblock is the owner of forty shares of $50 each of the preferred stock of the Clipper Lawn Mower Company, fully paid and non-assessable ; that the preferred stock represented by this certificate is entitled to annual dividends of 6%, payable out of the net profits of the company before any dividends are paid out of common stock, and if the net profits in any year be insufficient to pay dividends on said preferred stock, either in whole or part, any unpaid portion thereof shall be paid out of the net profits before any dividends are paid upon the common stock; that said preferred stock is subject to redemption in its numerical order at the option of the company at any time after ten years from September 1, 1905, upon payment of $50 per share and any am cumulated dividends, upon the company first giving-thirty days’ notice to the respective owners of record. This certificate is dated February 9, 1906, and is No. 37. Appellee testified that he had been paid no dividend, and that the president of the company wanted him to take his dividend in stock, and that another director said they would like to pay appellee if they could sell some stock. It was shown by the evidence that 6% had been paid upon some shares of .stock which had been sold for cash. There is neither record nor oral evidence showing that there ever had been a meeting of the directors at which a dividend had been declared. The president of the company testified that they had paid interest at 6% to parties who had bought stock for cash. The records of the company fail to show that a dividend was ever declared and there is no evidence there were any profits from which dividends could be declared. Appellee’s evidence proved that whatever was paid, whether it be called dividend or interest, was paid out of the sale of stock and not out of profits. No question is raised by counsel but that appellee is the owner of preferred stock in appellant company.

The so-called certificate by its terms is only entitled to receive a dividend or interest, which ever it may be, from the net profits of the company. A dividend is not a debt until it is declared and set apart for that purpose. 2 Thompson on Corp., sec. 2127; Lockhart v. Van Alstyne, 31 Mich. 76. It is a rule that dividends can be declared and paid only from profits, except where no rights of creditors intervene and all the stockholders assent. The payment of dividends out of capital is reducing the capital to the detriment of the creditors, and it is illegal for a company to pay dividends to shareholders out of the capital before an income is earned. Statutes of Illinois, sec. 19, chapter 32; Purdy’s Beach on Corporations, sections 451 to 454. Corporate officers make themselves liable to be called upon to repay to the company dividends paid out of the capital stock. Even if it be a fact that the company did pay 6% interest to some holders of preferred stock who had paid cash for their stock on the promise of some of the officers that a dividend or interest should be paid annually, still if it was paid out of the capital and from the sale of stock and not from profits, that would not justify a recovery by other holders of preferred stock unless a dividend had been earned and declared by the company. Dividends upon preferred stock are hot a debt that is guaranteed. The right to a dividend is not a debt. There is no debt until the dividend is declared, and the right to declare it does not exist until there is a fund from which it can properly be made. Therefore preferred shareholders are not creditors of the company, by virtue of their stock certificates. Purdy’s Beach on Corp., sec. 476.

At the annual meeting of the stockholders of appellant company held September 18, 1906, the record of the stockholders’ meeting, after recording the election of directors, contains this sentence: “Those present expressed themselves as satisfied with the year’s work, and also well pleased that the clipper had paid their first dividend on September 15th of six per cent.” This is the only reference anywhere in the records of the company to a dividend. Dividends are declared by directors instead of stockholders unless it is otherwise provided. Purdy’s Beach on Corp., sec. 434; McNab v. McNab, 62 Hun 18. In England there is a statute requiring the directors to report the condition to stockholders and leave it to the stockholders to determine what dividends shall be declared. In King v. Paterson & Hudson River R. R. Co., 29 N. J. (Law) 88, it is expressly held that directors alone have the power to declare a dividend. There is no authority shown here for the stockholders declaring a dividend. The evidence introduced by appellee not only failed to show by record or otherwise that any dividend was ever declared by appellant but did show that “there never was any meeting for any dividends, we didn’t declare any.” A recital by stockholders that a dividend had been paid, while it might be proof tending to show that a dividend had been declared, yet it can-mot overcome positive proof that one had not been declared. If stockholders by such action can compel the payment of dividends, and directors are bound thereby, then the stockholders can force the directors to do illegal acts and assume a personal liability, against their will. The certificate of stock held by the appellee provided that the dividend was payable out of the net profits of the company. There being no dividend declared the appellee was not entitled to recover, and this judgment cannot be sustained. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    Alfred Borrett, Appellant, v. John C. Petry, Appellee.
    Gen. No. 5,093.
    1. Res judicata—when judgment sufficient to establish. The same formality and technical accuracy is not required of a judgment of a justice of the peace as is re piired of the judgments of courts of record; in determining the effect of such a judgment as supporting the defense of res judicata, the substance should be regarded rather than its form.
    2. Evidence—question calling for speculation upon future contingencies. A question which asks for the result of a contingency which may or may not happen, is improper.
    3. Evidence—right to re-examine witness. It is within the sound discretion of the court to permit or to refuse to permit the reexamination of a witness.
    4. Evidence—when admission of opinion harmless error. Eeld,
      that even though the admission of an opinion might have been erroneous, yet such error was harmless in view of the fact that the facts upon which such opinion was based had previously been stated, and likewise in view of the further fact that both sides had examined their witnesses in the same manner.
    5. Instbuctions—must not submit questions of law. An instruction which permits a jury to determine what covenants if any are “implied by law,” is erroneous.
    Forcible detainer. Appeal from the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 24, 1909.
    D. R. Anderson, for appellant.
    J. W. Rausch, for appellee.'
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an action in forcible detainer commenced October 15, 1907, by Albert Borrett, before a justice of the peace, against John C. Petry. An appeal was taken from the justice of the peace to the Circuit Court of Grundy county where it was tried before a jury. A verdict was returned in favor of the defendant; judgment was rendered on the verdict and the plaintiff appeals and assigns several errors.

It appears from the record that Alfred Borrett, the appellant, is the owner of a farm of 103 acres in Grundy county, and on July 14, 1903, he leased the farm to John C. Petry, the appellee, for a term of five years beginning March 1, 1904. The lease provided among other things that at the expiration of the term the party would surrender the premises in as good a state and condition as reasonable use and wear thereof would permit. There are also agreements in the lease that the lessee shall not allow stock to run over said premises when the premises are wet and muddy; that the lessee shall trim all hedges and burn the brush; that the lessee ‘1 shall endeavor to keep all cockle burrs subdued and all other obnoxious weeds in a like manner.”

On February 7, 1907, the landlord served notice on the tenant demanding immediate possession of the farm, and on February 9th he began a suit in forcible detainer before a justice of the peace against Petry, the tenant, to regain such possession. The notice, summons and docket entry of the justice in the case begun February 9th were introduced in evidence on the trial of this case.

The docket entry is as follows: “State of Illinois, Grundy County SS. Alfred Borrett v. John Petry, in Justice Court before F. H. Clapp, J. P. Complaint is for possession. Complaint of Alfred Borrett for forcible entry and detainer dated February 9, 1907 ’ ’; here follows a description of the same premises as those in controversy in this suit. The docket further shows the issuing of summons, service and a trial before a jury, that the jury returned a verdict finding “the defendant not guilty, whereupon- it was adjudged by the court, defendant not guilty,” signed by the justice. Proof was made by the plaintiff in the present case that he was the party who brought the suit February 9th and that no appeal was taken in that case.

Appellant testified that the farm was in first class condition when the tenant took possession, and that he, the landlord, had farmed it himself up to that time and that he had kept the weeds cut with the exception of a few; that there were no high cockleburrs. Appellant seeks to cancel the lease for the reasons that: (1) the tenant had allowed stock to run on the premises when the ground was wet and muddy; (2) that he had failed to keep the cockleburrs and other weeds subdued; (3) that he had failed to maintain the premises in as good condition as reasonable use would permit; (4) that he had committed waste; (5) that he had failed to trim hedges and burn the brush; (6) that he had failed to farm the premises in a husbandman-like manner.

The only proof with reference to stock running on the farm when the premises were wet and muddy was that on the 8th of January, 1907, when the tenant was from, home attending a funeral, stock was on the ground when it was soft. There was proof on the part of the landlord by himself and others that weeds of various kinds, including cockeburrs and burdock, were growing on the roadside and in the fence rows, and that no weeds had been mowed on the farm that season; while on the other hand, the proof on the part of the tenant was that he had pulled all the cockle-burrs and mowed all the weeds; that he went through the corn three times, and after corn plowing went through it again, taking three or four rows at a time, for the purpose of subduing cockleburrs and other weeds, and pulled the noxious weeds; that he mowed all the weeds along the highway and along the fence rows the first of July, and again about a month later, and that there were no noxious weeds that had seed when this suit was begun. The landlord testified to finding weeds maturing, before the trial was had before the justice, and other witnesses testified to tb,e same thing, and that subsequently to that time they found noxious weeds going to seed. Appellant testified to what he saw on the farm as late as November 14th and produced in court and introduced in evidence a sack containing burdock and cockleburrs that he claimed to have gathered on the farm a few days after the trial of this case before the justice. A number of witnesses testified that the land was farmed in a good and husbandmanlike manner. There was also proof on the part of appellant that the hedge had been trimmed and the brush piled up, but that prior to the beginning of the last suit before the justice some of the brush had not been burned and that some boards had been taken from the bottom of a corn crib for some reason.

It is urged that the court erred in admitting in evidence the record of the justice court of the case begun February 9th and disposed of February 15th on the ground that the docket does not show a judgment. The docket shows that the case was between the same parties and concerning the possession of the land in controversy in this case, and that the defendant was adjudged not guilty of a forcible detainer. While the judgment is somewhat informal it shows that the right of the landlord to oust his tenant from possession was adjudicated against the landlord in that suit. It is true there is no judgment for costs but there is an informal judgment upon the matter in controversy. “The sufficiency of the writing claimed to be a judgment should always be tested by its substance rather than by its form. ’ ’ Black on Judgments, sec. 115. The docket of the justice shows in substance, and not by inference, that the rights of the parties as to the possession of the farm were determined and adjudicated by the judgment of February 15th. When the entire record of the justice in that case is read together we think it is a sufficient judgment to bar a subsequent proceeding for the same cause of action. The same,, technicality and formality is not required in proceed-" ings before a justice of the peace as in suits before courts of record. C. & R. I. R. R. Co. v. Whipple, 22 Ill 105; Hall v. Lance, 25 Ill. 277; Arnold v. Mangan, 89 Ill. App. 327. There was no error in admitting in evidence the record of the suit begun February 9th and the judgment in that case was a bar to everything that was tried or might have been tried therein, and to any right to cancel the lease for anything that happened prior to the beginning of that suit. Bailey v. Bailey, 115 Ill. 551; In re Assessment of the Northwestern University, 206 Ill. 66; Keeley Brewing Co. v. Mason, 116 Ill. App. 604.

It is claimed that error was made in sustaining an objection to a question asked of appellant’s witness, Wrenny, as to what would have been the result to the farm if the weeds were allowed to develop in the same way as they had developed during that year from the time the witness visited the farm from about the first of September or October, until the termination of the lease in 1909. The question asked for the result of a contingency which might or might not happen. The question for the jury to try was the condition of the farm at the commencement of this suit—was there cause for the cancellation of this lease? The question was asked upon a re-examination of the witness. The right to re-examine a witness is a matter within the sound discretion of the court and he had been asked and had answered upon his original examination as to whether in the condition he saw the place in the fall of 1907 it was being farmed in a husbandmanlike manner. There was no error in the ruling of the court upon this question.

The appellant complains that several witnesses were permitted over the objection of appellant to be asked the question whether in their opinion the farm was worked in a good and husbandmanlike manner during the farming season of 1907. The witnesses were first asked to state what facts they saw. Error in permitting a witness to state his opinion may be harmless when he has stated the facts. City of Joliet v. Johnson, 177 Ill. 178. The record also shows that appellant had asked the same question of his witness, Wrenny, and that witness had answered that the farming he saw there was not considered good farming. We think the appellant should not complain of a question asked by his adversary, when the appellant first asked and had the same question answered by his own witness. We are of the opinion however that the witnesses should have described what they saw, and then a hypothetical question might have been asked as to what constitutes proper farming in order to subdue noxious weeds. It is argued that farming is not a subject of expert testimony. The opinions of farmers are admissible on matters peculiarly within their knowledge. Lawson on Expert Ev. 15; Ency. of Ev. 553. Mechanics, clerks and other jurymen having no experience in farming, might be enlightened by the opinions of practical farmers. The evidence showed these witnesses were practical farmers, but for them to say what they saw was good farming was permitting the witnesses to pass upon the question that was submitted to the jury. However as both sides proved by the witnesses what they saw, and introduced the same character of evidence, the error was harmless.

It is also claimed that the appellant had the right to cancel the lease because two or three piles of hedge brush had not been burned. The lease contains no provision as to the time when the hedge shall be cut and the brush burned. It was not claimed that the hedges were not cut and the brush piled in proper season; the only claim is that some few brush piles had not been burned when the suit was begun. That could be done at any time before the termination of the lease provided the farm could be surrendered to the landlord in as good condition as when the tenant took possession.

The provision of the lease regarding weeds is that “the party of the second part shall endeavor to keep all cockleburrs subdued and all other obnoxious weeds in a like manner.” The appellee was required by this clause to use all reasonable effort to comply therewith. It was a question for the jury to say whether they believed the testimony of appellee concerning his efforts to subdue the weeds and whether he had used reasonable efforts to endeavor to keep the weeds subdued.

It is also insisted there was error in refusing instructions asked by appellant. The first instruction was properly refused for the reason it told the jury that if they believed the defendant had violated any of his covenants either expressly in the lease or implied by law then the plaintiff had the right to terminate the lease. The instruction was erroneous in that it left the jury to say what covenants were implied by law. The second instruction was properly refused because it told the jury that if they believed the defendant did not keep the buildings and premises in as good condition as they were at the time of taking possession then the plaintiff had the right to terminate the lease. The covenant in the lease is to return the premises at the termination of the lease in as good condition as when received, reasonable wear excepted. This does not require that they should be so maintained at all times. The third instruction was concerning stock running on the premises when the premises were wet and muddy. There was no proof concerning stock being on the premises when the land was wet subsequent to the beginning of the suit of February 9th. There was no reversible error in refusing that instruction. The fourth was properly refused for the same reason as the second. The fifth was given in number one of appellant’s given instructions. The sixth was given in other instructions. The court modified some instructions and gave them as modified. No complaint however is made of the modification of the instructions asked by appellant nor any criticism made upon such modification. The court by the modification however did erroneously make the suit begun February 9th a bar to everything prior to February 15th, the date of the trial, when it should only have been a bar to matters before its commencement.. The error was harmless as there was no proof whatever as to any facts that occurred between January 8, 1907, and corn plowing time, and appellant has raised no question upon this improper modification. Finding no reversible error in the case the judgment is affirmed.

Affirmed.


text:
    Lillian B. Hall, Plaintiff in Error, v. Nigle B. Hall, Defendant in Error.
    Gen. No. 4,963.

      Divorce—what does not bar, for extreme and repeated cruelty. No matter how many times the parties may have been married and divorced upon the ground of extreme and repeated cruelty, the right to a divorce arises upon a recurrence of extreme and repeated cruelty following a new ceremony.
    Divorce. Error to the Circuit Court 'of Rock Island county; the Hon. William H. Gest, Judge, presiding.
    Heard in this court at the April term, 1908.
    Reversed and remanded with directions.
    Opinion filed March 24, 1909.
    George W. Wood, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Lillian B. Hall, plaintiff in error, filed a bill in chancery against Nigle B. Hall, defendant in error, for a divorce on the ground of extreme and repeated cruelty.

The defendant’s default having been entered, the bill was taken pro confesso and upon an ex parte hearing, except that an attorney at law was appointed by the court to cross-examine the witnesses, a decree was entered dismissing the bill for want of equity at complainant’s costs. The complainant has sued out a writ of error to this court to reverse that decree.

Prom an examination of the record it appears the complainant had in 1898 secured a decree of divorce from the defendant in the state of Iowa on the ground of cruelty; that the complainant had two children, the fruit of that marriage; that in 1902 one of the children, aged about seven years, in the custody of complainant, was very sick, and the defendant came to visit this child at Rock Island, Illinois, which was then and has been since that time the . residence of complainant, and helped to take care of the child; that while the child was sick the defendant made the complainant believe he was a different man, and persuaded her to remarry him. After the last marriage the defendant again treated the complainant with great cruelty by lighting matches and holding the burning matches against her face until the skin peeled off, throwing her down, throwing things at her viciously, and using the most vile and opprobrious epithets towards her in the presence of the children, without any provocation or misconduct on the part of the complainant. The proof of extreme and repeated cruelty since the last marriage was sufficient to authorize the granting of a divorce. Counsel state that the court denied the relief asked on the ground that the complainant having obtained a former divorce from the defendant for a similar cause, she knew and assumed the risk of his proclivities, and therefore was not entitled to relief in this suit. The questions put to the complainant on the examination by the court would lead to that conclusion. Neither the doctrine of estoppel nor "assumed risk applies in such a case, and we know of no equitable doctrine that will deny relief to a wife from extreme and repeated cruelty inflicted by her husband when the same is not provoked by her own misconduct. Such cruelty is a cause for divorce under the statute. The conditions of the marriage contract are the same, without regard to the previous conduct of the parties, no matter how often the ceremony may be repeated. The decree is reversed, with directions to the Circuit Court to enter a decree of divorce according to the prayer of the bill.

Reversed and remanded with directions.


text:
    W. E. Ludwick, Appellee, v. Root & Vandervoort Engineering Company, Appellant.
    Gen. No. 5,084.
    1. Employee and employe—6urden to show ground for discharge. The burden of showing good and sufficient grounds for discharge rests upon the employer invoking such a defense when the servant has proven the contract, its performance up to the time of his discharge and his readiness to perform at the time of the discharge.
    2. Evidence—when cross-examination as to document improper. Held, that to ask a witness as to the customary manner of making reports without first showing him the reports which had been previously made by him, was improper.
    Assumpsit. Appeal from the County Court of Rock Island county; the Hon. R. W. Olmsted, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 24, 1909.
    George W. Wood, for appellant.
    G. H. McKinley, Jr., for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an action in assumpsit begun by W. E. Ludwick, appellee, against the Boot & Vandervoort Engineering Company, appellant, to recover for services performed on a verbal contract for hiring, and for damages for an alleged wrongful discharge of appellee. The declaration contains the common counts for services rendered, and a special count for damages resulting from a breach of contract, because of a wrongful discharge before the termination of the contract by its terms. The only plea is the general issue.

The proof shows that the appellant company is a manufacturer of gasoline engines in East Moline; that, the appellee for a number of years had been foreman of the machine department under a verbal annual employment. In the first week in January, 1907, he was re-employed for the year beginning January 1, by H. A. Soverhill, the appellant’s superintendent. Appellee worked for appellant, as appellee claims, until September 5, and as appellant claims until August 29, 1907, when he was discharged. The jury returned a verdict in favor of appellee for $20.80 on the common counts and $406.12 on the special count. Judgment was rendered on the verdict for $426.92 in favor of appellee and the company appeals.

The parties disagree as to what was the contract of hiring. Appellee testified that the terms of the contract were that he was to have $125 per month and a commission of twelve cents an engine, provided that if the salary of $125 per month plus twelve cents for each engine manufactured did not amount to $1,800 at the end of the year he was to receive the difference between $1,800 and the amount received as salary and commission; that he was to receive at least $1,800 for the year. Soverhill testified that appellee was to receive $125 per month and twelve cents royalty on each engine manufactured. Soverhill admits that he said to appellee, when appellee was insisting on $1,800: “I said in view of our factory was going to be changed that would be about 2,500 engines, we would pay him a twelve cent royalty and that would make the $1,800 a year, and I will take my chances. I think we will make 2,500 engines, we will pay you twelve cents per engine, and you take your chances of putting out 2,500 engines or more.”

The court at the request of the appellant submitted to the jury an interrogatory, “Did the defendant by its superintendent guarantee the plaintiff for the year 1907, a salary of $1,800?” This the jury answered in the affirmative. In view of the conflict in the testimony the finding of the jury is conclusive on this court that the contract was as stated by appellee.

It is next insisted that the appellee was discharged for good cause and that he was not entitled to recover any damages for his discharge, to wit, the difference between the $1,800 he would have received, had he completed Ms contract, and the amount he was actually paid by the appellant, and three hundred dollars he received from another employer during the remainder of the year after he was discharged. Appellant claims to have discharged appellee because of his failure to make certain' reports. Appellant claims justification for the discharge of appellee, because on July 1st, it had installed what is known as a “cost system” of accounting for each item of material and work, although it had been preparing to adopt tMs system for some time before July; that under the “cost system” it was the duty of the foreman to make certain reports in connection with that system, and that appellee, as such foreman, failed and neglected to make such reports after havmg been repeatedly requested to do so. The evidence was in direct conflict. The appellee testified that he was not requested to make the reports, and that nothing was ever said to him about his work not being satisfactory; that when he was discharged the only reason given was that there was going to be a change in the company, and nothing was said about his services not being satisfactory. It is shown by evidence offered in impeachment of Soverhill, that he wrote a letter of recommendation, stating appellee’s services were satisfactory. The record tends to show that the justification relied upon for the discharge is an afterthought on the part of appellant’s superintendent. The evidence being conflicting, and the jury having believed appellee, we cannot say it was not justified in its finding under the evidence.

The burden of showing good and sufficient grounds for discharge rests upon the employer invoking such a defense when the servant has proven the contract, its performance up to the time of his discharge, and his readiness to perform at the time of the discharge. School Directors v. Reddick, 77 Ill. 629; Campbell v. Fierlein, 134 Ill. App. 207; Morris v. Taliaferro, 44 Ill. App. 359.

Appellant argues that the cross-examination of appellee was unduly limited. Appellant produced some blanks and in cross-examination undertook to ask appellee as to the contents, without showing them to the witness. The question was also asked on cross-examination whether it was customary to fill in after the word “defective” the number of such castings. An objection was sustained to this question. The papers themselves or reports appellee had made to appellant, if any, were the best evidence of their contents. The system had only been in operation a month, and the reports, if any were made, were in the custody of appellant. The proper method of cross-examination was to show the reports made by appellee, if any, and ask if they were in his writing. 3 Encyc. of Ev. 876; 1 Greenleaf on Ev. sec. 463. Then if it were claimed other reports were not made by appellee which should have been made, he might have been asked why they were not made. The ruling of the court was correct. Finding no reversible error in the case the judgment is affirmed.

Affirmed.


text:
    George B. Stitzel, Appellee, v. Elizabeth Farley, Conservator, Appellant.
    Gen. No. 5,062.
    1. Insanity—section H of chapter 86 construed. Notwithstanding the provision of this statute which makes void the contract of a person made after his adjudication as insane, a contract made by him during a lucid interval is binding without an adjudication of restoration to reason.
    2. Insanity—presumption as to continuance. If a person has been adjudged insane the presumption of insanity continues until the adjudication of restoration to reason has been made, and where the issue is as to whether reason has been restored, the burden is upon the party who alleges such restoration to reason, to establish it by a preponderance of the evidence.
    Judgment by confession. Appeal from the Circuit Court of Lee county; the Hon. Richard S. Farrand, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed March 24, 1909.
    Henry C. Warner, George C. Dixon and Henry ¡S. Dixon, for appellant.
    Brooks & Brooks, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

On December 31, 1907, judgment by confession was entered in vacation in the office of the circuit clerk of Lee county in two cases, one entitled George B. Stitzel v. George W. Parley and James Sherry for $1,020.75, the other George B. Stitzel v. George W. Parley for the sum of $60.87. The notes upon which the judgments were entered were all dated December 30, 1907. On January 16, 1908, Elizabeth Parley, conservator of George W. Parley, entered a motion in each case in the Circuit Court, that the causes be re-docketed and for an order setting aside the judgments against George W. Parley and to recall the execution and substitute the conservator as a party defendant and for leave to plead. An order was entered substituting the conservator as a party defendant, granting leave to defendant to plead and that the judgments stand as security for the debts until the further order of the court.

A plea of the general issue was filed, and a stipulation was made that upon the trial the defendant might interpose any defense and evidence that would be proper under any special pleas and replications thereto. By agreement the cases were tried together before a jury. The jury found in favor of plaintiff, and the motions of the conservator to vacate and set aside the judgments were overruled, and the judgments were rendered for costs against the defendant. The conservator appeals.

The evidence shows that on June 13, 1902, George W. Parley was by the County Court of Lee county adjudged insane pursuant to the finding of a commission, and was committed to the insane asylum at Elgin; that in October, 1903, Michael Farley was appointed conservator of George W. Farley; that on April 10, 1904, George W. Farley was released from the asylum as im-. proved; that the conservator made a report to the County Court of Lee county, at the April term, 1907,. showing that he had received $263.37, as such conservator, and that he had paid that amount to George W. Farley on April 25,1905. Michael Farley died August 15, 1907. On January 15, 1908, Elizabeth Farley was appointed conservator. There was no adjudication of court reinstating Farley after he had been adjudged insane.

Two defenses were interposed, (1) that George W. Farley had been adjudged insane and never had been reinstated, and was under the statute incapable of contracting, and that his notes were therefore void; (2) that he was insane at the time of the execution of the notes sued on. The notes were given for the purchase of a saloon. Fifteen witnesses testified that George W. Farley at the time of giving the notes sued on was of sound mind and capable of transacting ordinary business; five witnesses, mostly members of the family of Farley, testified that he was not of sound mind. At the close of the evidence the defendant requested a peremptory instruction, which was refused. Appellant contends that this should have been given because of the provisions of sections 14, 37 and 39 of chapter 86 of the Statutes of Illinois. Section 14 provides:

“Every note, bill, bond or other contract by an idiot, lunatic, distracted person or spendthrift, made after the finding of the jury, as provided in section 1 of this act, shall be void as against the idiot, lunatic, distracted person, drunkard or spendthrift, and his estate; but the person making any contract with such idiot, lunatic, distracted person or spendthrift shall be bound thereby.”

Sections 37 and 39 provide for the restoration of an insane person for whom 'a conservator has been appointed by making an application to the County Court and entering an order in that regard. Section 14 of the statute now in force was passed in 1893 and is almost identical in language with the provisions of the statutes passed in 1874 and 1869, and very similar to that of the statute of 1845 concerning lunatics. The courts of last resort in this state hold that notwithstanding the statute, a contract made with a person after an adjudication of insanity, but made during a lucid interval is binding, and may be enforced against him, and that where a person has been adjudged insane and afterwards released from the asylum as improved, with a recovery of his reason, contracts made by such party are valid without an adjudication of restoration to reason. McCormick v. Littler, 85 Ill. 62; Lilly v. Waggoner, 27 Ill. 395; Clay v. Hammond, 199 Ill. 377; Langdon v. People, 133 Ill. 382; Searle v. Galbraith, 73 Ill. 269; Speck v. Pullman Car Co., 121 Ill. 33; Titcomb v. Vantyle, 84 Ill. 371; Am. Bible Soc. v. Price, 115 Ill. 623; Martin v. Jamison, 39 Ill. App. 240. The court therefore did not err in refusing the peremptory instruction requested by appellant.

It was a question of fact to be passed upon by the jury to be found from all the evidence whether George W. Farley was or was not of sound mind at the time of giving the notes sued on; but having once been adjudged insane and not adjudged sane thereafter by a court, the presumption of insanity continued, and the burden was upon appellee to establish his sanity at the time the notes were executed. The appellant requested such an instruction and it was refused. Appellee concedes the propriety of that instruction, but insists that the proposition of law was given in other instructions. There is no instruction in the record telling the jury upon whom the burden rested. For the error in refusing that instruction the case must be reversed and remanded. As the case must be retried by a jury we express no opinion on the merits of the case.

Reversed and remanded.


text:
    Bonnie H. Derges, Administrator, Appellee, v. The Chicago, Burlington & Quincy Railroad Company, Appellant.
    Gen. No. 5,124.
    1. Obdinances—when unreasonable in restricting use of railroad right of way. Held, that an ordinance offered in this case was unreasonable and void in that it unreasonably restricted the use by the railway company defendant of its own right of way.
    2. Contbibutoby negligence—when person hilled at railroad crossing guilty of. Held, under the evidence, that the plaintiff’s intestate was guilty of contributory negligence which barred his recovery in that he either disregarded or negligently failed to see the flagman’s signal to stop.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Peoria county; the Hon. T. N. Gbeen, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed.
    Opinion filed April 28, 1909.
    Jack, Irwin, Jack & Miles, for appellant; C. M. Dawes, of counsel.
    James A. Cameron and Joseph A. Weil, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an action in case brought by Bonnie H. Derges, administrator of the estate of Henry Julius Derges, deceased, appellee, against the Chicago, Burlington and Quincy Bailroad Company, appellant, to recover damages for the loss of support by the widow and next of kin of the deceased, who was killed by a train of appellant, while attempting to cross its tracks in a buggy within the limits of Peoria.

The declaration contains three counts: the first alleges careless and negligent operation of a locomotive and train of cars by the appellant on its railroad, by backing the train towards and over a certain public highway known as Cedar street whereby the deceased was killed; the second alleges that there is an ordinance of the city of Peoria providing that it shall not be lawful to permit any locomotive or car to stand on any railroad track across the view of any street running towards the Illinois river, and that the appellant operates a railroad and backed a locomotive and train thereon toward a crossing of the railroad by a public highway within the city of Peoria known as Cedar street, or an extension thereof toward the river from the easterly end of Cedar street; that the appellant obstructed said highway contrary to the ordinances of the city of Peoria, so that said street was impassable except sixteen feet in width which was planked over and to which the travel was confined, and that the appellant left standing on said highway contrary to the ordinances of the city of Peoria and on its track a certain freight car, which obstructed the view so that Derges was unable to see cars approaching and backing toward the crossing on the next track toward the river; and the third count alleges negligence on the part of the appellant in failing to ring a bell or blow a whistle and in failing to keep a look out on top of the car nearest the crossing while backing its train toward said crossing, which was a public thoroughfare. Bach count avers that the deceased was in the exercise of due care while driving across appellant’s tracks. There was a verdict and a judgment in favor of appellee for $4,000, and the railroad company appeals to this court.

The parties stipulated that Cedar street in the city of Peoria extends at right angles with Adams street, and towards the Illinois river, of a width of seventy feet to the northwest line of defendant’s right of way; that said street was never dedicated or laid out beyond the northwest line of said right of way; that for more than twenty years prior to the date of the accident' the defendant has maintained a plank crossing over its tracks sixteen feet wide for the convenience of persons and industries on the southeast side of its railroad; that the center of the railroad crossing is opposite to and continuous with the center of Cedar street; that foot passengers and vehicles use said driveway in crossing said track to said industries; that the city of Peoria for many years has maintained a crossing-flagman at that crossing- and the railroad company has no power of appointment or discharge over said flag-man and said flagman and other flagmen are all paid out of a general fund assessed by the city against all railroads in the city; that it is not practicable to drive across said track on either side of said sixteen-foot crossing; that the northwesterly line of defendant’s right of way and the southeasterly end of Cedar street are on a line with the southeasterly end of the Peoria Cooperage Company’s building; that the plank crossing in question crossed nine separate tracks belonging to the defendant, the first of which is five feet from the lower end of Cedar street and it is thirteen feet from the center of the first track to the center of the second track.

In addition to the stipulation the evidence shows that the Peoria Cooperage Company has a building situated in the angle southwest of the end of Cedar street and northwest of the right of way of the railroad, the building- covering the lot to the line of the street and the line of the right of way; that the Cooperage Company has an ash bin extending into the street across the end of the sidewalk almost to the curb on the southwest side of the street, and apparently extending out to the right of way so as to be close to cars standing on the first track; that at the time of the accident a coal car loaded with ashes stood by the ash bin, the north end of the car projecting on the right of way beyond the southeast end of the street as far north as the northwest side of the ash bin and to within a very few feet of the plank crossing; that on September 11, 1907, about eleven- o’clock in the forenoon, the deceased, a man of about sixty-five years, in the possession of all his faculties, riding in an open buggy drawn by one horse, drove southeast down Cedar street and undertook to drive across the railroad tracks on the plank crossing; that three switchmen, a fireman and an engineer were making up a train on the second track from the end of Cedar street southwest from Cedar street; that the train consisted of a locomotive at the west end and about twenty cars northeast from the engine, so that the train was over six hundred feet long and would have about fifteen feet of slack between the cars; that the train stopped to couple a car to the train when the next easterly car was about four car lengths from the plank crossing; that the tracks curve southwest from the crossing so that a switchman at the end of a train of the length of this one cannot see the engineer, and must communicate his signals through a brakeman or switchman nearer the engineer; that the switchman was on the east end of the second car from the east end of the train when the signal was given to move the train northeast. There is some conflict in the testimony whether, when the train moved east, the switchman remained on the second car from the end or was on the east end car when the train moved toward and upon the crossing; but the preponderance of the evidence is that he was on the end car. The train in moving east struck the buggy in which Derges was driving, crushing it down and killing him, after pushing him past the crossing.

Appellee offered in evidence the title page and section 1919 of the ordinance of the city of Peoria, as follows:

“Sec. 1919. It shall not be lawful for !any locomotive, engine, tender, passenger car, freight car, or any other railroad car whatever, to stand upon any railroad track, in said city, opposite to or across the foot of any street running to or towards the Illinois river or Lake Peoria, except while used in repairing any such track.”

The appellant objected to the ordinance as incompetent and immaterial under the stipulation, but the court overruled the objection and appellant excepted. Error is assigned on this ruling of the trial court. The same question was raised by an instruction requested by appellant concerning this ordinance, which the court refused to give. Under the stipulation Cedar street is seventy feet wide and terminates at the northwest side of the right of way of appellant. The sixteen-foot plank crossing is opposite to and continuous with the center of Cedar street northwest of it. The second count of the declaration alleges that appellant obstructed the public highway, except the sixteen feet that was planked, by placing and leaving a car standing upon said highway contrary to the ordinances. The ground opposite and contiguous to the southeast end of Cedar street is the private property of appellant, and the public under the stipulation have no rights thereon except upon the planked strip sixteen feet wide. The railroad owned the right of way and the street was laid out up to it but not across it. The railroad maintains the sixteen-foot crossing, but the public have no other or greater rights in the right of way not covered by the crossing than if the crossing was not there. The ordinance admitted in evidence forbids the railroad from permitting a car to stand on its own property “opposite to or across the foot of any street running to or towards the Illinois river.” The appellee argues that this is a valid ordinance under subdivision 27, of paragraph 63, of chapter 24, —the city and village act—which provides that the city council shall have the power to pass ordinances “to require railroad companies to keep flagmen at railroad crossings of streets, and to provide protection against injury to persons and property in the use of such railroads.” There is no reason apparent why the railroad might not permit cars to stand on its own right of way. Cities and villages have authority to control speed of trains within their limits, but that power is expressly given to them by the 21st section of the same paragraph and is limited to not below a certain rate by section 87, of chapter 114, of the statute. The fact that the Illinois river is on the other side of the railroad from the end of the street cannot add to the powers of the city. The ordinance has no reference to railroads maintaining narrow crossings or crossings of less width than the streets approaching the crossing. Had there been no crossing maintained by the railroad from the end of Cedar street we can see no reason why the railroad might not have fenced its right of way if it saw fit and permitted cars to stand on the right of way, shutting off the view of the river from the street. There is no more reason why persons and property need protection opposite the ends of streets abutting on a railroad than there is for requiring protection elsewhere on the right of way. If persons would be trespassers on the right of way where private property abuts on both sides they would equally be trespassers opposite the end of a street. The ordinance in question appears to be an unreasonable limitation on the use of the railroad right of way by its owner and in effect is an appropriation of property or property rights without compensation and is therefore void. The court erred in overruling the objection to the ordinance, and there is no evidence upon which a judgment can be sustained on the second count.

Appellant insists that the judgment cannot be sustained because the proof not only fails to show that the deceased at the time of and prior to the accident was in the exercise of ordinary care for his own safety but does show that by his own negligence he contributed to his death. All the proof shows that the train was not moving faster than between three and four miles an hour and about the same rate that Derges was driving. The flagman testifies that he was on the plank crossing and gave a signal to Derges to stop before he got on the tracks and that he “kept signal-ling and hollering to him but he did not pay any attention to him.” A young lady, whom Derges passed sixty feet from the tracks going in the same direction as Derges, testified that the flagman was signalling to Derges and she screamed at the top of her voice. The switchman at the east end of the train testifies he was on the end car and first saw Derges about twelve feet from the first track when the car was twenty-five or thirty feet from the crossing, and that he called to bim in a loud voice and immediately gave stop signals, which because of a curve in the track had to be communicated to the engineman through a switchman nearer the locomotive. The engineer of the Cooperage Company, who was on Cedar street in front of the building, testifies he saw the flagman signal Derges to stop, but Derges continued on his way on a slow trot. Michael Eeardon, a witness for appellee, testifies that the plank crossing is thirty to forty feet wide and seventy-five feet long, and that the flagman signalled Derges to come ahead; this witness says he was working about a block away, up about thirty feet from the ground; that the car that killed Derges was standing still about five feet over the crossing until bumped against Derges as he drove on the cross-sing, and that if the car was moving it was so slow he could not see it move. This witness testified at the coroner’s inquest, and there testified that his attention was called to the collision just as it occurred, and made no mention of the flagman at the inquest. A careful examination of all the testimony neither reveals any proof of care or caution on the part of Derges nor any excuse for his driving on the track, except the testimony of Eeardon that the flagman signalled him to cross. This witness is impeached by his former testimony and by the direct testimony of one of appellee’s witnesses and of three of appellant’s witnesses, who from their location had a much better opportunity to see what occurred, and who say the flagman signalled the deceased to stop. The flagman it is also to be noted, was not employed by or under the control of appellant. The moving freight cars were plainly visible over the coal car to pedestrians and to people driving in the street. This crossing was a very dangerous one. The train was moving very slowly. The city flagman was at his post of duty, and a very great preponderance of the evidence is that he signalled the deceased not to cross. It is the duty of a person about to cross a railroad track to do whatever a reasonably prudent person would do under the same circumstances. C., R. I. & P. Ry. Co. v. Jones, 135 Ill. App. 380, and cases there cited. It is a firmly established doctrine that for the plaintiff to recover, in this kind of a case, it must appear from the evidence that he was in the exercise of due care, and although it may appear that the defendant was guilty of negligence, if it appears that plaintiff’s negligence concurred in producing the injury, there can be no recovery. L. S. & M. S. Ry. Co. v Hessions, 150 Ill. 546; N. C. S. R. R. Co. v. Eldridge, 151 Ill. 542; Chicago City Ry. Co. v. Dinsmore, 162 Ill. 658; C., B. & Q. Ry. Co. v. Sack, 136 Ill. App. 425; C., R. I. & P. Ry. Co. v. Jones, 135 Ill. App. 380. The appellee not only failed to prove due care by a preponderance of the evidence but it affirmatively appears that the deceased was guilty of negligence either in disregarding or failing to see the flagman’s signal to stop. The evidence given in behalf of the appellee considered by itself, however, would sustain a verdict for appellee.

“If there is in the record any evidence from which if it stood alone, the jury could without acting unreasonably in the eye of the law, find that all the material averments of the declaration have been proven, the case should go to the jury.” “If the court is of the opinion that there is evidence in the record, which, standing alone, is sufficient to sustain such a verdict, but that such verdict, if returned must be set aside because against the manifest weight of the evidence, then- the motion (to direct a verdict) should be denied.” Libby, McNeil & Libby v. Cook, 222 Ill. 206; Barley v. Robison, 223 Ill. 616; Simmons v. Chicago & Tomah R. R. Co., 110 Ill. 340. The court did not err in refusing to direct a verdict for appellant, but did err in refusing to grant a new trial because the verdict was so manifestly against the weight of the evidence. A judgment cannot be sustained on the evidence; the case is reversed with a finding of fact. It is unnecessary to discuss the other questions argued.

Reversed.

Finding of facts, to be incorporated in the judgment: We find the deceased came to his death because of his own negligence and want of care in driving across the tracks of appellant in disregard of the signals of the crossing flagman, and that appellee has no cause of action against appellant.


author: Me. Peesiding Justice Thompson

text:
    Leslie P. Voorhees, Appellant, v. Truman A. Mason et al., Appellees.
    Gen. No. 5,058.
    1. Corporations—when compensation voted By directors to themselves illegal. The voting of stock by directors to themselves as compensation for services in promoting the company after the work was done, is voting back pay to themselves and is illegal.
    2. Corporations—when ratification By stockholders does not bind dissenter. The acts of directors in illegally voting stock to themselves cannot be ratified by a majority of the stockholders as against a dissenting stockholder or as against one who had no knowledge of such fraudulent action.
    3. Corporations—when action of board, providing for compensar tion to directors, voidable. When a director by his own vote and the votes of others representing his interests in the board, votes himself an exorbitant compensation for services to be performed, such action is voidable.
    4. Laches—when not chargeable against right to question corporate irregularities. A stockholder is not to be charged with having ratified the illegal acts of directors or with laches in bringing his action to correct the same when he has sought to have the illegal acts corrected continuously from the time he learned of them.
    Bill in equity. Appeal from the Circuit Court of Will county; the Hon. Fbank L. Hoopeb, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed an'cl remanded with directions.
    Opinion filed June 10, 1909.
    Statement by the Court. This is a bill in equity filed May 21, 1906, by Leslie P. Voorhees in behalf of himself and other stockholders of the Joliet Tropical Plantation Company who may choose to avail themselves of the benefits of this suit, except the individual defendants hereinafter named. The bill alleges that complainant now and since November 10, 1902, has been a stockholder of the defendant company and the owner on the books of said corporation of five shares of the capital stock of said corporation and five income certificates of said corporation; that he purchased said stock and income certificates of said corporation on November 10, 1902, in good faith and for a valuable consideration; that the defendant, Joliet Tropical Plantation Company, is a corporation duly organized and incorporated, in July, 1902, under the laws of Delaware providing for the formation of private corporations with a total authorized capital stock of 150,-000 dollars, divided into 15,000 shares with a par value of ten dollars each, having the principal office in the city of Wilmington, state of Delaware; that among the purposes of said corporation are the purchasing and acquisition of landed property in Mexico and the development and improvement of the same by clearing, planting, building, farming and otherwise improving, and to grow, cultivate, buy and sell, etc., coffee, rubber and other agricultural products. A copy of the certificate of incorporation is attached. The bill alleges that only 1264 shares of capital stock of said corporation have been subscribed for or issued; that in the month of July, 1902, at a meeting of the subscribers to the stock, Truman A. Mason, John O. Barrett, George- B. Carey, John F. Skeel, John J. Allison, and Caleb E. Antram of the said city of Joliet in Will county, Illinois, defendants, and Gardner W. Kimball of the city of Wilmington, Delaware, were elected as the first board of directors of said company and said parties then and there accepted the office of directors of said corporation and still are and have ever since acted as the only directors of said corporation and have ever since said election exercised exclusive control and management of said corporation; that in July, 1902, after the election of said directors, at a meeting of said board they adopted certain by-laws for the government of said corporation and its officers, a copy of which is attached; that in August, 1902, the directors adopted resolutions which are still in force for the sale for said corporation to its stockholders of income certificates of said corporation entitling the owner thereof to a share of the net proceeds of said corporation in the proportion such income certificates shall bear to the whole number of income certificates issued; that said resolution provided that no share of capital stock should be issued or sold (except three shares of capital stock donated to the Delaware director) for less than par value of ten dollars, and without a corresponding number of income certificates being also purchased by the same stock subscriber, and that no income certificates should be issued or sold for a less price than $290 for each certificate, making a total for each share of stock and income certificate of $300; said resolution further provided that the purchaser of stock and income certificates might pay for the same either in cash or instalments, the certificates being retained by the corporation as collateral security until full payment had been made to the corporation; that the purpose of issuing said income certificates was to increase the par value of the shares of capital stock from $10 to $300; that in February, 1903, the board of directors by a resolution increased the price of each share of stock with its accompanying income certiicate to $350; that the total number of income certificates issued or sold prior to the filing of this bill was 1261; that the said corporation has received $300 or more for each of said shares of stock with its accompanying certificate except for three shares donated to said Delaware director and except such shares of stock and income certificates as have been sold on the instalment payments where all of said instalments have not matured, and also except for 180 shares of stock and 180 income certificates accompanying same which said directors of said corporation have fraudulently sold to themselves at one-half the minimum price fixed by said resolution of said directors; that each share of capital stock of said corporation which has been subscribed then had and now has an actual market value of $10 and each income certificate sold or issued had and has an actual value of $290 and upwards. The bill further alleges that in August, 1902, before complainant became a stockholder said corporation purchased 1200 acres of land in the Republic of Mexico at $10 per acre and acquired an option to purchase 1,200 acres additional at $10 per acre, which option has been consummated, and the land sold and delivered to said corporation, which land, with buildings, fences and stock are all the property the corporation now owns. The bill further alleges that before complainant became a stockholder the six directors resident in Joliet entered into a fraudulent conspiracy with one another to appropriate to themselves thirty shares of the capital stock and thirty of said income certificates then of the actual value of $9000 without paying to said corporation anything therefor, and in pursuance of such conspiracy said board of directors adopted certain resolutions granting to each of said individual defendants and to no one else the right to subscribe for and purchase ten shares of the capital stock with ten income certificates at one-half the established price therefor, or at $150 for each share of stock and certificate, and each of said individual defendants did purchase and subscribe for said ten shares of capital stock and income certificates at said half price, and that no consideration was received by said corporation for said privilege so taken by said directors, although they now claim that said privilege was taken as compensation for services for promoting and financing said corporation; that the action of said directors in selling said stock and income certificates at one-half the face price was fraudulently kept secret among themselves and from complainant when complainant purchased his stock and income certificate and from other stockholders ; that complainant was assured by John J. Allison, through whom complainant made the purchase of his stock, that the directors of said corporation were not receiving any compensation for services in promoting and financing the same and that no stock or income certificates had been issued or sold for less than $300 and the complainant relied on such representation; that shortly after the incorporation of said company the board of directors adopted a resolution providing that each director should be paid out of the funds of said corporation a commission of ten per cent of the par value of all stock and income certificates sold by each director; that said directors have paid to themselves as compensation and on fees in selling stock and income certificates upwards of $40,000 and that said commissions are grossly excessive.
    The bill further alleges that in December, 1902, after complainant purchased his stock and income certificates the said directors resident in Joliet, without the knowledge or consent of complainant, fraudulently donated to each of themselves ten additional shares of stock and ten additional income certificates by a resolution similar to the one hereinbefore set forth donating five shares to each of themselves under which they each subscribed for and received twenty shares of stock and income certificates at half price claiming they were for services rendered in promoting, the same being aptly pleaded.
    The bill further alleges that a dividend of five per cent, amounting to fifteen dollars on each fully paid share of stock and income certificate, and a proportionate sum upon all shares of stock and income certificates not fully paid, was declared and paid in the month of May, in each of the years 1904 and 1905; that on each of said 180 shares of half priced stock and income certificates, held by said defendant directors, there was paid out of the funds of said corporation a five per cent dividend on double the actual amount paid by the said directors, and double the amount paid to any other stockholder and income certificate holder upon which the same amount had been paid; that the dividend so fraudulently paid to said defendant directors amounts to upwards of $3000; that said directors kept their said actions concerning the sale of stock and income certificates to themselves and the said commissions received by them secret and complainant had no knowledge thereof until the month of January, 1905, and that immediately upon receiving notice of such action of such directors, he made protest to said directors and the said protest of complainant was taken under advisement by said directors in January, 1905, and held until September, 1905; that in September, 1905, complainant at a stockholders’ meeting, made a demand in writing on the stockholders and the directors that the defendant corporation take action and institute proceedings to recover from each of said directors the sum of $4500 and interest thereon, being one-half the price of the shares of capital stock and income certificates so taken by said directors to themselves; that after the service of said demand on the directors, the directors made various efforts to compromise the matters in controversy and offered to submit said matters to any judge of n court of record in Cook county, which offer complainant accepted, but complainant and said directors were unable to agree upon a judge; that the delay in beginning this suit was caused by the action and dilatoriness of said defendants.

      The bill sets forth the statute and laws of Delaware regarding the rights, powers and duties of directors of private corporations, and that the remedies to compel directors to account are similar to those of Illinois ; that there is no provision in the laws of Delaware or statute thereof permitting any director to receive or retain compensation for services as director; that ever since the incorporation of said company, John 0. Barrett has been president, J. J. Allison has been first vice-president, George B. Carey has been second vice-president, Truman A. Mason has been treasurer, John A. Steel has been secretary and Caleb E. Antram has been general counsel; that all the meetings of the board of directors and stockholders have been held in the city of Joliet, in Will county; that said company ever since its incorporation has had an office in the city of Joliet where the company’s books, papers, etc., are kept; that all its stock has been issued there; that the office in the city of Wilmington, Delaware, is only a nominal office for the purpose of complying with the laws of that state.
    It is alleged that complainant at no time consented to the action of the directors, giving themselves the right to purchase stock and income certificates at less than the established price, that he never ratified or approved the action of the directors in that respect; that there is no'provision in the by-laws of said corporation for payment to its directors for any services; and the bill prays for an accounting to determine how much is due the corporation from the defendant directors and that they may be compelled to pay said corporation what may be found due, and for general relief.
    The defendants answered, substantially admitting the allegations of the bill, except those concerning fraud and concealment, which are denied. The answer states that the stockholders by the by-laws authorized transfers of stock to be under the charge of sales agents, and that the only compensation received by such sales agent was the difference between the ten per cent allowed such ag’ent for making the sale and the price at which he obtained sub-agents to work for him, and denies that the directors received any compensation for the sale of stock except as sub-agents; denies that the aggregate amount of commissions was $40,000, but admits it was approximately $24,700; states that there was a large amount of labor done by the directors in organizing and planning the corporation; states that the resolution giving defendants the right to subscribe for stock at half price were adopted in pursuance of an original understanding, and admits the payment of dividends on each of the 180 shares of half price stock and income certificates; denies that the actions of the directors were secret in regard to issuing stock; states that the books of the company were open to the stockholders; that all their resolutions were upon the records; admits many conferences with complainant since 1905, and states that in July, 1903, the stockholders by a resolution elected a committee to examine the books and that that committee reported in December, 1903; that the directors have been honest in their actions; that such report was printed and sent to the stockholders, and that in July, 1905, the report of said committee was accepted by the stockholders without any dissenting vote; states that afterwards a committee was chosen to audit the books and it was directed to inquire into the acts of the directors regarding the selling of stock and other services; that this committee made a report which was unanimously adopted in December, 1905, and states that complainant was at that meeting. A replication was filed. The court heard the case on the pleadings and evidence, and dismissed the bill for want of equity. The complainant appeals to this court.
    Bobman & McGbath, for appellant.
    O. E. Antbam: and J. L. O’Donnell, for appellees.
   Me. Peesiding Justice Thompson

delivered the opinion of the court.

The theory of appellant is that the directors of the corporation have wrongfully appropriated the funds of the corporation by voting themselves stock and income certificates at half price as pay for work done by them in promoting the company and for responsibility claimed to have been assumed by them in buying the lands now owned by the company, and in paying commissions to themselves for the sale of the stock and income certificates when neither the laws under which the corporation is organized, nor the laws of this state, nor the by-laws of the company, provide for any compensation to the directors or officers. The proof clearly shows, without any claim contra, that the appellant bought his five stock and income certificates through one of the directors on his statement that no one made anything out of it but the stockholders.

Officers of a corporation occupy the position of trustees for the stockholders with respect to the business and property of the corporation, and cannot have or acquire any pecuniary interest in conflict with their duties as such trustees. Hooker v. Midland Steel Co., 215 Ill. 444. The voting of the stock by the directors to themselves as compensation for services in promoting the company after the work was done, was voting back pay to themselves and is illegal. “It is the same as giving away the assets of the company.” Cook on 'Stock and Stockholders, sec. 657; Brown v. DeYoung, 167 Ill. 549. The acts of the directors in illegally voting stock to themselves could not be ratified by a majority of the stockholders as against a dissenting stockholder or one who had no knowledge of such fraudulent action.

It is urged that this suit cannot be maintained because of the time that elapsed between the acts complained of and the beginning of the suit. The record shows that the directors, while they reported other matters to the stockholders, never made any report of their actions concerning the stock issued to themselves, and the appellant had no reason to suspect such irregularities. The first notice that appellant had of the directors each having secured thirty shares of stock and income certificates at half the price that other investors paid was in October, 1904; this he obtained from the report of an auditing committee appointed by the stockholders. Immediately thereafter a correspondence between appellant and the secretary of the company was begun, and as early as January 3, 1905, the secretary wrote to appellant giving a variety of excuses for his delay in answering appellant’s letter. From that time to the beginning of the suit there was a controversy between appellant and the directors, the appellant insisting that the directors should either pay for their special stock the same amount as other parties paid or that they should cancel such stock. The directors from the time appellant questioned the propriety of their actions endeavored to find some way of compromising or arbitrating the matter. The appellant is not to be charged with having ratified the acts of the directors or with laches in bringing this suit, when he has sought to have the irregularities corrected continuously from the time he learned of them. Cratty v. Peoria Law Library, 219 Ill. 516.

The proof clearly shows that the directors who are defendants each received thirty shares of stock and accompanying income certificates at $150 per share while other parties paid $300 or more. The directors voted this to themselves as they claim for responsibility assumed in buying 3200 acres of land at ten dollars per acre. The notes for the purchase of the land were neither signed nor endorsed by any director, but executed by the company alone. If their theory be correct then they subscribed for and voted to themselves $27,000 for verbally guaranteeing the payment for the land for which the total purchase price was $32,000, when over $190,000 of certificates had been sold, not including the directors’ special stock. These facts are convincing that the claim of the defendant directors that this special stock was for guaranteeing the payment of the notes for the land, is a mere subterfuge. The claim that the directors’ special stock was for promoting the company does not appear to have been made in good faith, for the reason that at the first meeting of the directors in Illinois they pretended to pay themselves for their work and responsibility by the issuing of the first ten shares to each, and six months later they again pay themselves for the same work and responsibility by voting twenty additional shares to each of themselves on the same terms. The law will not permit such action by directors with the property they are in control of as directors.

The only remaining question is, should the directors account with complainant for the commissions received by them? Section 14 of the by-laws provides that “The secretary shall be secretary of the board of directors and of the standing committees. He shall be general sales agent of stock and income certificates.” At the first meeting of the directors in Joliet, Illinois, they elected themselves each to some office, and passed a resolution, “That commission on sales of income certificates be limited to ten per cent of such sales,” and that of this commission $5 be paid to the secretary and $25 “to general agent or director making sale.” The total commissions paid by the company prior to June 1, 1903, was $2244.56 of which the secretary received $756.40 and the remainder was all paid to the Joliet directors. From June, 1903, to June, 1904, the company paid $5304.21, in commissions for sales of stock, etc., of which the secretary received $1103.60 and $4200.61 was paid to the remaining Joliet directors. The answer admits the payment of $24,700 commissions to the secretary and other directors on the sale of 1261 shares of stock and income certificates. On 180 of these directors’ special stock and certificates, no commission was paid. The resolution fixing the commissions to be paid was passed by the directors before any of the income certificates were sold.

When a director by his own vote and the votes of others representing his interests in the board votes himself an exorbitant compensation for services to be performed such action is voidable. Harris v. Lemming, Harris Agr. Works, 43 S. W. Rep. 869, Tenn. The resolution allowing a commission to the secretary and other directors passed by themselves was voidable. Fritze v. Equitable B. & L. Soc., 186 Ill. 183; Adams v. Burke, 201 Ill. 395. However, the record shows that appellant was present at the annual stockholders’ meeting in 1903 and 1904 at which reports of the payment, of commissions on the sale of income certificates were made, and appears to have taken no exception thereto. Appellant claims not to have remained during the entire meetings, but from the evidence he had an opportunity to know what was being done in paying commissions on sales of stock and he must be held to have ratified the action of the directors in paying commissions so far as the same were reasonable. The secretary was clerk of the Joliet School Board and assistant superintendent of schools, and only devoted such time to the duties of the office as was not taken up with his school duties. Another of the directors was a principal in one of the Joliet public schools. The others were business men in Joliet. They would appear to have been quite liberal in the payments of each other from the funds of the Joliet Tropical Plantation Company, but appellant has not offered any proof that such payments were excessive or not earned, and we are not permitted to guess they were such, notwithstanding their appearances. We therefore hold the appellant is not entitled to an accounting regarding the commissions.

This suit was begun in behalf of the appellant and all other stockholders who might choose to come in and avail themselves of the benefits of this suit. No other stockholders have taken advantage of their right to be made parties to this suit and the appellant can only maintain it in his own behalf. Brown v. DeYoung, supra. This cause will be reversed and remanded to the Circuit Court, with instructions to that court to take an account between the individual defendant directors and the company, and to charge each of the said directors with the full price of each share of stock and income certificate taken by him at half price, and with the dividends on said certificate received by him on said stock and income certificate and half the dividends paid to him, and the court will decree that each defendant director pay to the appellant such proportion of the amount found due from such director as the number of shares and income certificates owned by appellant shall bear to the total number of shares and income certificates sold, decreeing the balance to such director under the rule announced in Brown v. DeYoung, supra.

Reversed and remanded with directions..

Mr. Justice Dibell took no part in the consideration of this case.