text:
    Frank Thoele, Plaintiff in Error, v. Illinois Traction Co. et al., Defendants in Error.
    1. Master and servant—due care. Where a foreman of a section gang, working with other laborers in removing dirt from flat cars under direct orders of the road master, is injured while riding on such car by reason of the shifting of a plank causing it to come in contact with a trolley pole, and where it further appears that the plaintiff had never before worked on flat cars with loose planks and that the road master had directed the placing of the planks, it is a question of fact for the jury to decide whether defendant company was guilty of negligence and plaintiff in the exercise of due care when injured.
    2. Master and servant—railroads. A railroad company owes a duty of using ordinary care and caution to furnish its employees, engaged in removing dirt from flat cars, a reasonably safe conveyance and surroundings while such cars are being moved about.
    3. Master and servant—assumed rislcs. It cannot be said, as a matter of law, that an employee engaged in removing dirt from flat cars assumed the risk of the shifting of a loose plank so as to come in contact with a trolley pole while the car was being moved, where such employee had never before worked on such cars.
    4. Master and servant—roadmaster as vice principal. A road-master having direct supervision over a gang of workmen is a vice principal of the railroad company.
    Action in case for personal injuries. Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed April 11, 1912.

      Jacob P. Lindley, John A. Fulwiler and DeMange, Gillespie & DeMange, for plaintiff in error.
    Sigmund Livingston and William R. Bach, for defendant in error.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action in case brought by Frank Thoele against the Illinois Traction Company, the Peoria, Lincoln and Springfield Railway Company and the Springfield and North Eastern Traction Company to recover damages for personal injuries sustained by plaintiff alleged to have been caused by the negligence of defendants. On a hearing, before a jury, the court at the close of plaintiff’s evidence instructed a verdict for the defendants upon which judgment was rendered. To review that judgment a writ of error has been sued out of this court by the plaintiff.

The declaration in the first count avers that plaintiff was employed as a section hand on defendant’s railway and was engaged in hauling dirt on a train of cars; that it was part of plaintiff’s duty at a'certain place to aid in shoveling dirt off the cars and to ride back on the cars from that place to the place where the cars were loaded to assist in reloading them; that the defendants negligently permitted certain loose boards used on said cars as side boards to remain on said cars loose and unsecured after the dirt was unloaded; that the end of one of said boards extending beyond the side of said cars struck a post standing five feet from the side of the cars whereby plaintiff was injured. The second count avers that the defendants were negligent in running cars with unsecured boards lying diagonally across the cars with the ends extending beyond the sides of the cars in such a manner as to strike the trolley poles, while the train was being run at a high rate of speed. The fifth count avers that plaintiff was required hy the Illinois Traction Company to work under its direction at labor, not in the line of his ordinary duty, and charges the defendants with negligence in requiring plaintiff to ride on cars with loose hoards thereon on a rainy day, while the train was run at a dangerous rate of speed liable to, and which did move said boards and cause them to extend beyond the sides of the cars and to be struck hy a trolley pole, and in negligently failing to warn plaintiff, an inexperienced man, of the danger from loose planks on such cars. The other counts are very similar in their averments of negligence and all aver due care on the part of the plaintiff.

The record discloses that the Illinois Traction Company operates electric cars over the Peoria, Lincoln and Springfield Railway Company’s tracks from Peoria to Lincoln and the Springfield and Northeastern Traction Company’s track from Lincoln to Springfield. Plaintiff was a section foreman of the Illinois Traction Company, in charge of a section of the Peoria, Lincoln and Springfield division. On May 29, Joe Connors, the roadmaster of the Illinois Traction Company, notified plaintiff to leave his regular section work and meet him with his section men at Lincoln to do some work there on May 31.. On arriving at Lincoln, plaintiff with his laborers and three other section gangs, about twenty-five men in all were set to work, under the immediate supervision of the road-master, at loading and unloading dirt and debris on and from flat cars on the Springfield and Northeastern division. From the evidence, the plaintiff while at this work was an ordinary laborer without any right to give orders, but all the men were working under the direction of Connors. The defendants were moving the dirt and debris with the flat cars and a motor ear from near Lincoln to a place about a mile and a half south of Lincoln. The cars were ordinary flat cars with stake sockets on the sides of the cars in which standards were driven and oak planks, about sixteen feet long, eight to twelve inches wide and three inches thick, were placed on edge inside the standards as side boards. Plaintiff had been engaged in section work, track work and working on gravel trains for many years, but testified that he never had worked on flat cars where loose side boards were used before the day of his injury. When the cars were loaded with the material the men got on the cars, the train was moved to where the cars were to be unloaded, the side boards were pried up and thrown on the middle of the cars or on the ground and the material unloaded. Plaintiff first assisted as a shoveler in unloading the south car next to the motor car, and that being first unloaded, he then went to help the men unloading the middle car which was unloaded before the men on the next car had finished unloading it. The conductor of the train had to keep it out of the way of the regular passenger train and told Connors, while the men were unloading the cars, that they had only eight minutes to get back to Lincoln and out of the way of a limited passenger train. Two of the side boards had been thrown on the ground; Connors directed some of the men to put them on the cars, but either because of . the hurry to get the train out of the way of the passenger train or for some other reason, only one of the two boards on the ground wa's replaced on the cars. The train started to Lincoln as soon as it was unloaded. Some of the men, among them plaintiff, started from the middle car toward the motor car to get a drink of water. The men crowded on the end of the car next the motor car so that plaintiff could not get into the motor car at once, but had to stop for those ahead of him to go through the door. It had been raining and the cars were muddy and slippery. While waiting to get into the motor car, plaintiff glanced behind him and saw that one of the planks had been jolted diagonally across the car and the end had slipped past a stake and was projecting beyond the edge of the car. The trolley poles stand about five feet from the west rail of the track. Plaintiff realizing the danger shouted and'turned toward the plank and the motorman applied the brakes. At the same instant the plank struck a trolley pole, pivoted on one of the standards, swung around and hit plaintiff seriously injuring him.

Immediately before starting on the return Connors, the foreman, was standing on the center car and gave orders about replacing the planks, directing how they should be placed. It does not appear from the evidence what part if any plaintiff took in placing the planks after the cars were unloaded. By the plank projecting over the edge of the car the plaintiff was suddenly confronted with a danger arising from a condition which did not exist when he entered on his work. It was a question for a jury to say whether he acted with such promptness and care in trying to get out of the danger as a reasonable man would have exercised under the circumstances. (Asmossen v. Swift & Co., 243 Ill. 93.) The plaintiff while at work on this train appears to have been an ordinary laborer having no control over any other men and subject to the immediate orders of the roadmaster, a vice principal of defendant.

The defendant owed to the plaintiff the duty of using ordinary care and caution to furnish the plaintiff a reasonably safe place to work and a reasonably safe conveyance and surroundings on the return trip to Lincoln, and the plaintiff had the right to presume and act upon the presumption that this had been done. (Missouri Malleable Iron Co. v. Dillon, 206 Ill. 145; McMasters v. Grand Trunk Ry., 155 Ill. App, 648.) What was done in the placing of the planks on the cars and the movement of the train appears to have been under the direct orders of the roadmaster or the conductor, over neither of whom plaintiff had any control. The plaintiff had never worked on flat cars with loose planks thereon before; the danger of loose planks on muddy and slippery cars shifting their position from the jolting of the train and being struck by trolley poles should, in the exercise of reasonable care, have been known to the master and cannot be said to be so obvious that a laborer assumed the risk of such dangers. We think it was a question of fact for the jury to decide from the evidence whether the defendants were guilty of negligence and the plaintiff was in the exercise of due care when injured. Beasonable men might disagree on these questions when the evidence in the present record is considered. The "evidence for the plaintiff being uncontradicted must be ■ assumed to be true, and fairly tending to disclose a cause of action, a peremptory instruction should not have been given. This court has heretofore sustained a judgment in favor of one of the men injured in this accident. (Galanas v. Springfield & N. E. Traction Co., 164 Ill. App. 17.) The court erred in giving the peremptory instruction, the judgment is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Thompson

license: Public Domain

text:
    William Checkley, Plaintiff in Error, v. Illinois Central R. R. Company, Defendant in Error.
    1. Agreement—when not against public policy. An agreement in a lease of part of a right of way upon which a warehouse is to he constructed, indemnifying the railroad company against damages by fire, is not illegal or invalid as against public policy.
    2. Railroads—fires. Where a lease of railroad premises releases the lessor from damages by fire, the lessor is not liable in trespass for the acts of its employees' in entering on the demised premises to remove combustible material from its right of way, as it was required by statute to do, and negligently causing a fire resulting in injury to the lessee.

      Error to the Circuit Court of'Coles county; the Hon William B. Scholfield, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed April 11, 1912.
    Statement Tby the Court. William Checkley sued the Illinois Central Railroad Company to recover damages for the destruction of a warehouse and contents by fire.. The original declaration contained six counts; an amended declaration was filed, the first eight counts of which are in case and the remaining two in trespass. Subsequently two additional counts in trespass were filed.
    The first count of the amended declaration avers that the plaintiff was seized and possessed of a certain warehouse situated on lot 11 and the south 30 feet of lot 10 in block 143 of Noyes’ addition to the city of Mattoon of the value of $1,000, in which building were stored seventy tons of broom corn, property of plaintiff, of the value of $16,000, all of which the defendant knew; yet the defendant knowingly, intentionally and wilfully caused to be set on fire certain grounds, and the dry grass and other combustible material thereon, near to and adjoining said building of the plaintiff, and so negligently and carelessly watched and attended said fire that the same was communicated to the building of the plaintiff on the aforesaid premises and consumed said building and contents to the damage, etc. The second count is similar to the first, except that it does not allege careless watching and attending said fire. The third and fourth are the same in substance as the first.
    The fifth count avers, in addition to what is in the first, that defendant negligently permitted grass and weeds to grow and to become highly combustible and dangerous on its premises within the city of Mattoon and adjoining the premises of plaintiff; that there was in force in said city an ordinance, providing a fine for any person who shall kindle any fire or burn any substance on any street or other open or public grounds except in a metal crematory; that it was the duty of defendant to refrain from kindling any fire except as permitted by the ordinance, but in disregard of said ordinance defendant wilfully and wantonly caused dry grass to be burned on open grounds, etc.
    The sixth count resembles the fifth, but contains the further averment that defendant negligently attended said fire. The seventh is the same in substance as the first. The eighth resembles the sixth except it avers that the defendant negligently kindled the fire, but does not allege that it was carelessly and wantonly kindled.
    The ninth avers trespass to real property in that the defendant with force and arms entered the close of plaintiff and then and there set fire to a certain building of the plaintiff thereon whereby it and its contents were consumed.
    The tenth avers trespass to real property of plaintiff similar to the ninth, except it is the dry grass, etc., thereon that it is averred was set on fire on said close, whereby fire was communicated to the building, etc.
    The first additional count avers trespass to property by setting plaintiff’s warehouse on fire whereby the same and its contents, the property of plaintiff, were destroyed.
    The second additional count avers trespass to property by setting fire to dry grass adjacent to plaintiff’s warehouse whereby the building was destroyed and the contents damaged.
    The twelfth and fourteenth pleas of the defendant plead matter, which confesses and avoids each count of the amended declaration and the fifth additional plea confesses and avoids the ninth and tenth counts of the amended declaration and the additional counts.
    The fourteenth plea is .to the first to eighth counts inclusive and avers that plaintiff ought not to have and maintain his action against the defendant because it says that before the causes of action mentioned, and before the commencement of this suit on, to-wit, etc., the plaintiff by his contract of that day and now to the count here shown released to the defendant his several causes of action and all demands, which the plaintiff should have against the defendant in words and figures as follows, to-wit:—the contract copied at length in the plea is a lease from defendant to plaintiff of the real estate described in the declaration, except that part of said lots now occupied by side, tracks thereon and eight feet from the center line of said side tracks, for a rental of one dollar per annum, the lessee agreeing to erect a frame building for a storage warehouse on the described premises, and “it is further agreed by the lessee that the ground herein leased shall be used for a storage warehouse, and for no other purpose.” The lessee further agrees “that at all times during the continuance of said tenancy he will exercise such care and cause such precautions to be taken as shall adequately protect buildings and structures on said demised premises and their contents and all property of whatever description situated on said premises, against all dangers to which they may be exposed from fire by reason of the proximity of said premises to the railroad operated by the lessor, and the movement or use of locomotive engines and cars upon its tracks the risk of all loss, injury and damage by fire, however caused, and whether or not caused by the negligence of the lessor, its agents or servants, being hereby assumed by the lessee, who, in consideration of the leasing of said premises on the terms aforesaid, hereby agrees to indemnify and save harmless the lessor from all liability for damage by fire, however the fire may originate the risk of which is assumed as aforesaid.”
    It avers that by subsequent agreements the said lease has been continued in force and was in force and effect at the time of the alleged loss, and the building thereon and property stored therein and described in the declaration were only on the premises by virtue of said agreement and lease and extensions thereof; that by the said lease and agreement the plaintiff agreed to assume and did assume the risk of all loss, injury and damage by fire and in consideration of the lease did agree by the terms of the lease to indemnify and save the defendant harmless from all liability for damages by fire however the same might originate,' or to whatever cause the same might be attributable; and therefore the defendant says that the plaintiff released the defendant and agreed to save and keep harmless the defendant from all demands and causes of action set forth in the said counts of said declaration, and this the defendant is ready to verify. The twelfth plea is substantially the same as the fourteenth.
    The fifth additional plea is to the ninth, the tenth and the first and second additional counts. It avers that the close of plaintiff, referred to in said counts, was. only held by plaintiff as a tenant of defendant by virtue of a lease, pleading the lease and extensions thereof in full as in the fourteenth plea. It then avers the agreement on the part of plaintiff to assume the risk of loss, and damage by fire, and the agreement to indemnify and save the defendant harmless from all liability for damage by fire; that the fire complained of was set out by the servants of defendant while burning the right of way and grounds of defendant and thereby freeing it from dry grass, weeds and other inflammable substances, and that the servants of defendant, when they set out said fire, did so under the belief that it was part of the right of way of defendant, and not knowing that the close had been leased to plaintiff, and that the servants of defendant after setting out said fire thought they had put it out and left said close with said fire entirely extinguished, but that the fire smouldered for to-wit, two days in sawdust that plaintiff had allowed to remain and be on said close, and after two days the fire broke out and was communicated to the buildings, etc., and therefore defendant says plaintiff ought not to recover for damages suffered as a result of said fire so communicated to the buildings on the close held by plaintiff under said lease; and this it is ready to verify, etc.
    The court overruled general demurrers to the twelfth, fourteenth and fifth additional pleas. The plaintiff abiding by his demurrers the court rendered judgment in favor of the defendant, and the plaintiff sued out a writ of error to review that judgment.
    Emery Andrews and James Vause, Jr., for plaintiff in error.
    James W. & Edward G. Craig, for defendants in error ; John G. Drennan, of counsel.
   Mr. Justice Thompson

delivered the opinion of the court.

The twelfth plea confesses and avoids all the counts in the amended declaration; the fourteenth plea confesses and avoids the first eight counts of the amended declaration, and the fifth additional plea confesses and avoids the last two counts of the amended declaration and the two additional counts—the counts in trespass. The demurrers to these three pleas are general demurrers and if the pleas in substance present a legal defense to the counts to which they are pleaded, then judgment was properly entered in favor of the defendant.

Negligence is the gist of the first eight counts of the declaration. They seek to recover from the defendant because of its negligence in starting a fire to clear the right of way of defendant of inflammable material or for the negligence of defendant in negligently failing to watch said fire after it was started so that it spread and burned the property of plaintiff.

The trespass counts charge the defendant with entering the premises of plaintiff and starting a fire thereon, which destroyed plaintiff’s building and contents. The plea to these counts avers that the servants of the defendant, when they entered the close and set out the fire, did so under the belief that it was a part of the right of way of defendant and without knowing it had been leased to plaintiff, and believing they were burning dry weeds, etc., on the right of way of the railroad as they had been directed to do by the defendant.

All the pleas admit the starting of the fire by the defendant and the destruction of plaintiff’s property as stated, but aver that the plaintiff was only in possession of the premises destroyed, by virtue of a lease from the defendant that contains an agreement that plaintiff will exercise the necessary care to protect his buildings and property from fire and indemnify and save defendant harmless from all liability for damages by fire however the fire may originate, the risk of which is assumed by plaintiff.

Plaintiff contends that such an agreement is illegal and void as against public policy. It is not alleged in the counts in case that the fire was started with the intent or purpose of burning the premises of plaintiff, but only that defendant was negligent in burning the dry grass and weeds, and the plea to the trespass counts avers the fire was started for the lawful and legitimate purpose of destroying’ the dry grass and weeds on the defendant’s right of way; hence what would be the effect of such a contract if a criminal intent had been present is not involved.

The courts of this state have held contracts of railroad companies to be legal and valid, where there was much more reason for holding them invalid and against public policy than there is in the present contract. In C. R. I. & P. Ry. Co. v. Hamler, 215 Ill. 525, it was held that a contract of employment as a porter for a sleeping car company, which releases the railroad company over whose lines the cars are hauled from liability for any injury to the porter when on such lines, is not against public policy, and such a contract is a good defense to an action for any negligence short of wilful or intentional negligence. The same rule is held with respect to a contract with an express company. Blank v. I. C. R. R. Co., 182 Ill. 332. Contracts similar to the contract in question have been held valid and not against public policy. Osgood v. Central Vermont R. R. Co., 70 L. R. A. (Vt.) 930; Mann v. Pere Marquette R. R. Co., 135 Mich. 210; Griswold v. I. C. R. R. Co., 90 Iowa 265; Northern Pacific R. R. Co. v. McClure, 47 L. R. A. (N. D.) 149; Thomas v. Hannibal & St. J. R. R., 82 Mo. 538; Russel v. Pittsburg R. R. Co., 157 Ind. 315; Quirk Milling Co. v. M. & St. P. Ry. Co., 98 Minn. 22; Stephens v. Southern R. R. Co., 109 Cal. 86; C. N. O. & T. P. Ry. Co. v. Saulsbury, 90 S. W. R. (Tenn.) 624; Mansfield M. Ins. Co. v. C. C. C. & St. L. Ry. Co., 74 Ohio St. 30; M. K. & T. Ry. Co. v. Carter, 68 S. W. R. (Tex.) 159; Hartford Fire Ins. Co. v. C. M. & St. P. Ry. Co., 70 Fed. R. 201. The contract was in the nature of an insurance against losses occasioned by the negligence of defendant or its servants. A common carrier may obtain insurance against such losses or may by stipulation with the owner of goods carried have the benefit of such insurance procured by the owner. Phoenix Ins. Co. v. Erie Transportation Co., 117 U. S. 312; Wager v. Providence Ins. Co., 150 U. S. 99.

Plaintiff was not under any obligation to erect the building on the premises leased by him from defendant until he secured from defendant the lease which gave him the right and obligated him to erect it'. He could not compel the defendant to permit him to erect the warehouse on its grounds (Missouri P. R. R. Co. v. Nebraska, 164 U. S. 403), and the defendant in giving a lease of part of its land had the right by contract to protect itself from liability and the indemnity to defendant against damages by fire is a part of the consideration for the granting of the lease. We see no good reason why the defendant might not protect itself by contract against damages by fire resulting from its negligence, since it was not contracting for anything prohibited by law or conflicting with its duty as a common carrier. What the defendant might have refused to permit to be done, it may permit to be done on such terms as it can make by contract without violating the law. The court properly overruled the demurrers to the twelfth and fourteenth pleas.

The plea to the trespass counts admits an entry by defendant upon the close of plaintiff, but denies any intentional trespass and avers plaintiff held said close only as tenant of defendant. It avers that the unintentional entry on the close occurred through the negligence of the employes of defendant, who were only authorized to clear the right of way of inflammable matter. That is an act which section sixty-three of the railroad and warehouse act required the defendant to perform. The plaintiff in the lease agreed to exercise such care and caution and take such precautions as shall adequately protect the building thereon with its contents against all danger by fire. The plea avers that the employes of defendant, after setting out said fire, thought they had put it out and left said close with the fire entirely extinguished, but that it smouldered for, to-wit, two days in sawdust and other inflammable material that plaintiff had allowed to be and remain on said close, and that the fire broke out and was communicated to the.building, etc. The plaintiff negligently permitted sawdust and dry weeds to be and remain on the close leased by it, which was part of the right of way of defendant, and the employees of defendant by mistake and without any breach of the peace entered and undertook to destroy the inflammable material dangerous to the safety of plaintiff’s property and negligently failed to entirely extinguish the fire. The act the defendant did was one plaintiff had obligated himself to defendant to perform, and that the statute requires shall be done by the defendant.

In 28 Am. & Eng. Encye. of Law, 557, the rule announced is: “The mere absence of wilfulness is so little material to the constitution of trespass that, in general, nothing short of unavoidable accident will excuse, and the want of intention to do the particular injury caused, or any injury whatever, will not avail the defendant if the act was an illegal or mischievous one, or a lawful act done in a careless or improper manner, from which injury to third persons may possibly result. But if there be negligence by both parties, there can be no recovery without showing that the damage was wholly caused by the act of the defendant.” And on page 558: “Parties engaged in the prosecution of a lawful act are not liable for an accidental injury occurring during the performance of the act, when due care and precaution have been exercised. * * * But although without the intention to injure, if there be want of ordinary care and skill, even in the performance of a lawful action liability follows. No amount of care will excuse where the act performed is illegal.” The demurrer admits the averments of the plea that plaintiff permitted inflammable matter to be on the part of the right of way leased to it, its failure to protect its buildings from the danger by fire resulting therefrom and the averments as to how the fire was started and the unintentional negligence of the defendant. By the averments of the plea there was negligence on the part of plaintiff in neglecting to perform his agreement to adequately protect his building on the leased premises from danger by fire. The law required the defendant to keep its right of way clear of combustible material. In burning the dry grass, etc., on plaintiff’s close, it appears to have done in a negligent manner what the law required it to do, and the plaintiff had obligated himself to defendant to do, and that by his failure to keep his contract he contributed to the injury for which he brings his action. The only damages claimed are those caused by fire; all such damages are released by the terms of the lease. The defendant as a landlord having unintentionally, although negligently, entered his own premises of which plaintiff was a tenant with a limited use, to do what the law required, we are of the opinion the plea of release from damages caused by negligence in starting the fire sets up a good defense to the counts in trespass and there was no error in overruling the demurrer to that plea. The judgment is therefore affirmed.

Affirmed.


text:
    Charles F. Bryant, Appellant, v. Mabel Palmer, Appellee.
    1. Brokers—when owner may himself sell property. Where a broker has not an exclusive right to make a sale of property, the owner may himself sell it, provided this is done before he is informed that the broker has a purchaser ready, able and willing to take the property.
    2. Brokers—when entitled to commission. A broker is only entitled to a commission in the event of his finding a purchaser ready, able and willing to take the property on the terms offered.
    3. Brokers—when no exclusive contract for sale of note. Where a broker has authority to sell a note knowing that the owner is also negotiating for its sale, he clearly has no exclusive contract for the sale of such note.
    Appeal from the Circuit Court of DeWitt county; the Hon. W. Gr. Cochran, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed April 11, 1912.
    Herrick & Herrick and Ingham & Ingham, for appellant.
    Rolofson & Westervelt and Welty, Sterling & Whitmore, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

Charles F. Bryant brought suit in attachment against Mabel Palmer to recover $700 claimed to be due plaintiff for commissions. The defendant appeared and filed the general issue. Thereafter the suit proceeded as in ordinary assumpsit. A jury having been waived, the cause was tried by the court, and a judgment entered against the plaintiff, who appeals.

The record shows that appellee formerly lived in Clinton, Illinois, but at the time the suit was brought was residing in Wenatchee, Washington, and that she owned a note for $14,500, due March 1, 1914, executed by Mathias D. Brown, secured by a first mortgage given for purchase money on a DeWitt county farm. Appellee being in need of money had been trying to sell the note and mortgage and had advertised it for sale since May 1910. On June 11, 1910, having been unable to sell the note on satisfactory terms, she through her attorney and cousin, E. B. Mitchell, neg-otiated a loan at the DeWitt County National Bank for $7,586.77, and gave her note therefor bearing seven per cent. interestj ’ .-edged the $14,500 note and mortgage as collate. ¿city for the loan.

Appellee continued he, , urged her attorney to get get a broker to sell it. loan broker, knew the m May, 1910. In July, 1910, ney to see the maker of he would do towards pa; September, 1910, she wro ■ that the note was still on x swer her letter. The make with Mitchell to take up t. the allowance of a discom cashier of the DeWitt C( ’;s to sell the note, and one to buy the note or Lant, a real estate and s for sale from about lee wrote to her attorite and find out what in March 1, 1911. In pellant reminding him .•ket but he did not an-e note, Brown, agreed ) March 1, 1911, upon ¡>700. Brown saw the Sank relative to raising the money to pay the note and the cashier of the bank sent Brown to appellant to make the loan. On March 16th appellant called at the bank, told the cashier he was making the loan for Brown, and got from the cashier the abstract of the farm on which the mortgage was that secured the note. Brown also testified that appellant promised to furnish him the money to take up the loan on a new mortgage. On March 17th Mitchell notified appellee that Brown had failed to get the money and that appellant had good prospects of getting the money within fifteen days and asking if she would allow appellant the $700 discount the same as she had offered Brown. On March 18th, appellant answered the letter from her attorney by a night message saying, “Yes, but must pay Snell interest for balance of time.” On March 21st, appellant notified the attorney for appellee that he had sold the note and mortgage'to the Franklin Insurance Company, “provided the farm will bear inspection by the company’s representative and the title pass.” On the same day appellee received a letter from Brown notifying her that he was ready to take np the note, enclosing a release of the mortgage and requesting that the release be executed and returned to the Snell bank, where the note was paid by Brown on March 28th. On March 27th, the attorney of the Franklin Insurance Company reported that there were some objections to the title. The company’s representative examined the farm on March 24th, but made no report of the result of his examination until after the note had been taken up by Brown.

It is clear that appellant had no exclusive contract for the sale of the note. The appellee had the right to sell it at any time to any person with whom appellant was not negotiating. Where a broker has not an exclusive right to make a sale of property, the owner may himself sell it. A broker is only entitled to a commission in the event of his finding a purchaser ready, able and willing to take the property on the terms offered. Where different brokers have property for sale, and none of them has an exclusive right to make a sale, the broker who first finds a purchaser ready, able and willing to buy and is the procuring cause of the sale, is the one entitled to a commission. (4 Am. & Eng. Ency. of Law, 983.) The evidence does not show that appellant ever did furnish a purchaser, able, ready and willing to take the note and mortgage on the terms offered. The terms offered by appellee were a discount of $700 and to “pay interest due Snell for balance of time.” The declaration does not aver, and the evidence does not show that the title to the land was not a good merchantable title, but it does appear that the purchaser with whom appellant was negotiating objected to the title and was not willing to take it, and that appellant’s prospective purchaser was not satisfied with the security until after Brown had taken up the note. Appellee had not given an exclusive contract to appellant. She had the right to'sell the note and mortgage to any person not a customer of appellant when an offer was made, provided the sale was made before she was informed that appellant had a purchaser ready, able and willing to take the securities on the terms offered. Appellant has no legal claim against appellee for the reason he was not able to find a purchaser able, ready and willing to buy the securities before Brown paid off the note, and he had no assurance that he ever would find such a purchaser on appellee’s terms.

The appellant tendered three propositions of law and fact which the court refused. The first two were properly refused because they omitted an essential element of fact shown by the evidence to have been in appellee’s night letter. The third was concerning a recovery on a quantum meruit, which was not involved in the case.

The appellee also tendered propositions of law and fact which the court marked held. The first was improperly held to be the law in that it required appellant to prove he held an exclusive contract for a fixed period of time before he conld recover. This was erroneous but it was harmless under the evidence in the case. There was no error in the others.

The judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Thompson

text:
    Virgia V. Barton, Appellee, v. George E. Southwick, Appellant.
    1. Physicians and subgeons—right to recover compensation. A physician can only recover for valuable services rendered and if he does not use such reasonable care and skill as is ordinarily exercised by physicians practicing in his community, then he is not entitled to recover for such services.
    2. Judgments—res adjudicata. After a praecipe and declaration for malpractice had been filed against a physician he sued the patient for compensation, before a justice of the peace, and obtained a judgment. The patient appeared before the justice and defended the suit. Seld, the judgment estopped the patient from claiming malpractice and was a bar to such suit and a peremptory instruction should have been granted.
    Action in case for malpractice. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Cbeighton, Judge, presiding. Heard in this court at the April term, 1911.
    Reversed.
    Opinion filed June 5, 1912.
    Graham & Graham and Stevens & Herndon, for appellant.
    W. St. J. Wines, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an action in case brought by Virgia V. Barton against George E. Southwick, a physician and surgeon, to recover for alleged malpractice. Plaintiff recovered a verdict and judgment for $2,300.00 from which the defendant prosecutes an appeal.

The declaration avers that the defendant so improperly and .negligently treated the plaintiff as to necessitate the removal of her uterus. The plaintiff, who is thirty-two years of age and had borne four children, only one of whom is living, testified that she first visited defendant at his office for treatment late in March, 1910, complaining of constipation and scanty menstruation; that the defendant gave her some medicine for her stomach and howels; that she nest saw him about the middle of June and asked for tablets for the bowels and the defendant told her she was pregnant, but that she insisted she was not and that the doctor gave her tablets for her bowels and a bottle of other medicine; that she took the medicine regularly through June, July, and up to August 18th, and that she had her monthly periods regularly, during all that time. The defendant testified that plaintiff visited him on April 7th, April 30th, and June 14th, and that, on April 30th, she said she was pregnant; that he gave her a preparation of bismuth and hydrastis at the April and June visits to regulate her bowels, but that he gave her nothing that would affect the generative organs.

Plaintiff further testified that her monthly period was due August 18th, but that she began to flow the 16th and it continued the two following days. She also testified that she and her husband went to a park on the afternoon of the 18th; that the flow began after they got home that evening and that she discharged a quart of blood, although she had had no accident and nothing unusual had happened to cause it. About ten o’clock on the night of the 18th the plaintiff’s husband went for the defendant and told him his wife was flowing badly and wanted him to go and see her at once; the defendant told him he had a call to the country and advised him to get another physician, but the plaintiff’s husband said the plaintiff did not want another physician and that defendant gave him some ergot with instructions to give her a dose every hour, and to call another physician if the flow was not checked by the third dose. The defendant visited the plaintiff the next morning and found a quart or more of blood in a vessel with blood on the floor and bedding. The evidence is conflicting as to what occurred thereafter, the defendant testifying that he only removed blood clots with a curette and took steps to prevent any further hemorrhage, while the plaintiff’s evidence tends to show he claimed he was trying to remove a child. The defendant visited the plaintiff the next day and the day after that, when she was taken to a hospital and her uterus removed by a surgeon called by the defendant.

It is insisted on behalf of the defendant that a clear preponderance of the evidence shows that the plaintiff was troubled with a chronic degeneration of the uterus; that it was in such condition it would not hold stitches; that she had a spontaneous rupture of the uterus; that the removal of the uterus was therefore necessary when the defendant was first called, and that such condition could not have been caused by any treatment given by the defendant during the time he treated her; however, it is not necessary to pass on that question because of a legal question in the ease.

The record contains a stipulation that the defendant in December, 1910, brought suit before a justice of the peace against the plaintiff and her husband “to recover compensation for services, including the visits on which it is claimed in the case on trial that the defendant was guilty of negligence; that Yirgia Barton was a defendant in that suit brought by Doctor South-wick and is the same Yirgia Barton who is plaintiff in this case; that counsel appeared on the hearing in the trial of that case before the said justice of the peace representing the defendants; that the defendant in this case and plaintiff in that case, Dr. Southwick, testified on that trial to the rendition of the services upon which this action is based; that counsel for defendants in that case inquired of Dr. Southwick on that trial concerning the duration of his visits, what instruments he used and what use he made of them, and that judgment for compensation for the plaintiff for the said services was given against the defendants, Wesley Barton and Virgia Barton, as claimed by the plaintiff in the suit,” and that the suit before the justice of the peace was commenced after the praecipe and declaration had been filed in the suit on trial.

An instruction was asked directing a verdict for the defendant, and another that if the jury believed from the evidence that the defendant brought suit against the plaintiff before a justice of the peace, to recover compensation for the services rendered at the time, when plaintiff claims that her cause of action in this case arose, and that plaintiff was represented by counsel in that suit brought by the defendant, and that defendant recovered judgment for compensation for the visits upon which it is claimed that a right of action in this case arose, they should find the defendant not guilty. These the court refused. The stipulation shows that the plaintiff appeared by her counsel and defended the suit brought by the physician to recover for his professional services; and that the physician did recover a judgment for his services against the plaintiff, who now claims damages against the physician for malpractice. A physician can only recover for valuable services rendered. If a physician does not use such reasonable care and skill as is ordinarily exercised by physicians practicing in his community, then he is not entitled to recover for such services, Yunker v. Marshall, 65 Ill. App. 667. In Howell v. Goodrich, 69 Ill. 556; it was held that in a suit against a physician to recover damages for malpractice, a former suit by the physician against the patient in which the right to recover on the ground of malpractice was determined against the latter and a recovery had for the amount charged was a bar to the suit to recover damages for malpractice. The plaintiff in the present case having appeared before the justice of the peace and defended the suit, it necessarily results that the question whether or not the defendant, as a physician, was guilty of malpractice has been adjudicated. The judgment in favor of the physician for the identical services, out of which it is claimed the malpractice arose, precludes the patient from claiming she was not properly and skilfully treated. The plaintiff is estopped by the judgment before the justice of the peace, where she appeared at the hearing and took part in the trial, from now claiming that the physician was guilty of malpractice. Howell v. Goodrich (supra); Sale v. Eichberg, 105 Tenn. 333; Bellinger v. Craigue, 31 Barber (N. Y.) 534; Blair v. Bartlett, 75 N. Y. 150; Lawson v. Conaway, 37 W. Va. 159; Goble v. Dillon, 86 Ind. 327; 1 Herman on Estoppel, 235. It follows from what has been said that the trial court erred in refusing to give the peremptory instruction.

The judgment before the justice of the peace in favor of the physician is a bar to a suit for damages; the judgment is reversed.

Reversed.


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    Martha Smith, Plaintiff in Error, v. Beulah Plew, Defendant in Error.
    1. Contracts—when grandparent cannot recover from grand-' child for support. Where a grandparent took a grandchild two years of age to live with her on the death of the child’s mother and it is apparent that the child lived as a member of the grandparent’s family without any expectation of making compensation, the fact that the child has received a small legacy will not permit the grandparent to recover pay from the child for the child’s support.
    2. Appeal and error—when proposition of law will not he reviewed. When a grandparent sues a grandchild to recover for support and, from the family relation, no other judgment than for defendant can be rendered, propositions of law submitted by the plaintiff will not be reviewed.
    Error to the Circuit Court of Edgar county; the Hon. William B. Scholfield, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed June 5, 1912.
    F. W. Dundas, for plaintiff in error.
    H. S. Tanner, for defendant in error.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Martha Smith, plaintiff in error, brought suit against Beulah Plew to recover for board, lodging and maintenance of the defendant for five years prior to the beginning of the suit. The cause was submitted to the court without a jury, and after hearing the evidence a judgment was rendered in favor of the defendant.

The evidence shows that Beulah Plew, defendant in error, was twelve years of age in 1911. When she was seventeen months old, her mother, a daughter of plaintiff in error, died and the defendant together with her little brother lived with Mrs. Plew, their grandmother, for a few months. About a year after the death of Beulah’s mother, her father married again and has children by his second wife. Plaintiff in error, the other grandmother, the mother of defendant’s mother, by an arrangement with Mrs. Blew took Beulah to live with her when Beulah was about two years of age and she has lived with plaintiff in error ever since that time, and the boy lived with Mrs. Blew until his death in 1910. Blaintiff in error testified, “I didn’t charge for nothing, I just took the little child, because she was put to the mercies of the world” and frequently expressed her- fear that Beulah’s father would take the child home and she would have to live with her stepmother. The fact that Beulah had recently received a small legacy- is no reason for the plaintiff in error recovering pay for Beulah’s support. The evidence is clear that Beulah has lived with her grandmother, plaintiff in error, all the time as a member of her grandmother’s family without any expectation on the part of the plaintiff in error that she would receive any compensation for Beulah’s support.

While some of the propositions of law submitted by plaintiff in error stated abstract propositions correctly, they were not applicable to the case. It is not necessary to review them, since under the evidence no other judgment than the one rendered could be sustained.

The judgment is affirmed.

Affirmed.


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    Sylvester Hall, Appellee, v. Gillespie Township Mutual Home Insurance Company, Appellant.
    1. Evidence—when veterinary surgeon qualified as expert. Where a mule insured against damage from lightning is found dead near a wire fence and there had been lightning during a shower on the preceding night, a veterinary surgeon, who testified to his experience of thirty-eight years as a veterinarian and to his professional knowledge and observation of animals killed by lightning, may be asked a hypothetical question.

      2. Witnesses—when cross-examination proper as to statements not admissible as original evidence. Mules were claimed to have been killed by lightning and the president of a defendant lightning insurance company undertook to detail what the owner said to him. On cross-examination he was asked to give the exact language and this developed what the owner told the witness that his wife had said about a shower. Held, although the wife’s statement was inadmissible as original evidence, the plaintiff could not be barred from cross-examining the witness as to such statements.
    Action on a policy of insurance. Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed June 5, 1912.
    Rinaker & Rinaker, for appellant.
    Edward C. Knotts, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Plaintiff brought suit before a justice of the peace on a policy of insurance issued by defendant insuring plaintiff’s horses and mules against damage by fire or lightning. From the judgment before the justice an appeal was taken to the Circuit Court, where a verdict was returned for $125 in favor of the plaintiff upon which judgment was rendered, and from which defendant appeals.

The record shows that one of the mules insured was found dead on the morning of April 21st, near a wire fence in plaintiff’s pasture, and that there had been a shower with lightning and thunder in that vicinity during the preceding night. Defendant contends that the court erred in admitting the testimony of Dr. Block-burger, a veterinary surgeon, who qualified as an expert by testifying to his experience of thirty-eight years as a veterinarian and Ms professional knowledge and observation of animals killed by lightning. The objection to the hypothetical question asked the witness was properly overruled.

It is also insisted that court erred in admitting evideuce of a statement made by plaintiff’s wife. Anderson, the president of defendant company, undertook to detail in his evidence in chief on behalf of defendant, what the plaintiff had said to him. On the cross-examination of Anderson, he was asked to give the exact language of the conversation and this developed what plaintiff told Anderson his wife has said about the shower. The defendant having first examined the witness about the conversation, the plaintiff was properly entitled to cross-examine about the same conversation. The statement' made by plaintiff’s wife to plaintiff was inadmissable as original evidence for plaintiff, yet plaintiff could not be barred from cross-examining the witness as to what Anderson testified plaintiff told him his wife had said. The defendant might have controlled the effect of such evidence by an instruction, but has no reason to complain of the admission of evidence that it introduced. Such cross-examination was a right not a privilege. Spohr v. City of Chicago, 206 Ill. 441.

The evidence presented on behalf of the respective parties was in direct conflict on the merits of the case. There is not a clear preponderance on either side, hence the finding of facts was peculiarly within the province of the jury. The verdict having been approved by the trial court, this court has no right to set it aside unless it is clearly and manifestly against the weight of the evidence.

Defendant also assigns as error the refusal of an instruction asked by it. All of that instruction, that was proper to be given to the jury, was given in defendant’s first and second instructions, but the instruction was otherwise properly refused because of its argumentative nature.

There being no error in the case, the judgment is affirmed.

Affirmed.


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    The People of the State of Illinois for use of Johnston Jeffries et al., Appellants, v. James K. Rardin et al., Appellees.
    1. Executors and administrators—sufficiency of declaration in action on bond. Where a husband as administrator of his wife’s estate gives bond to account for the proceeds of real estate sold to pay debts in a suit thereon by heirs, a declaration in substance averring such sale and that out of the proceeds the husband paid a certain sum of his personal debts on which his wife was surety, and that he has failed and refused to inventory and charge himself with that sum as due from himself to the estate, is not demurrable.
    2. Judgments—when approval of administrator’s report is not res adjudicata of his liability. Where a wife signs notes as surety for her husband and he as administrator allows them as claims against her estate, and the Probate Court approves his report without being informed of his primary liability on the notes, there is no adjudication which will preclude heirs suing on a bond given by the administrator to account for the proceeds on a sale of real estate.
    3. Executors and administrators—charges. A husband being financially able to pay notes that his wife had signed as surety for him, paying as administrator such debts out of the proceeds of his wife’s real estate, should charge himself with such sums.
    4. Executors and administrators—fraudulent payment of personal debts. Where a wife signs notes as surety for her husband, he cannot sell her real estate and pay the notes and then inherit as personal property the claim of the estate against him on the notes, but he must account to the heirs who would have inherited a portion of such real estate.
    5. Descent—when estate descends subject to debts. On the death of a wife her estate descends to her heirs subject to the payment of her debts, but not her husband’s debts, and after payment of her debts the division of the estate among the heirs should be made; and its descent is regulated by the nature of the estate at the time of her death.
    6. Executors and administrators—approval of report. An order of the County Court approving an executor’s report, declaring the estate settled and discharging the executor, has the effect only of closing the account up to the time the report is approved, and is void as to unsettled matters of the estate.
    7. Executors and administrators—discharge. The approval of the final report of an administrator does not operate to discharge him as administrator.

      Action in debt on bond. Appeal from the Circuit Court of Coles county; the Hon. William B. Scholfield, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed and remanded with directions.
    Opinion filed June 5, 1912.
    Statement by the Court. This is an action in debt against James K. Bardin, Samuel Bardin and Jacob M. Bardin on a bond executed by the defendants upon the condition that James K. Bardin, as administrator of the estate of his wife, Johanna J. Bardin, should properly account for the proceeds of certain real estate sold under an order of the County Court.
    The declaration avers that Johanna J Bardin died October 29, 1909, intestate, leaving no children or descendants surviving her but left surviving her as her only heirs at law, her husband, James K. Bardin, Johnston Jeffries, her brother, Kittie Walker and Martha Hackley, her sisters, and Nettie Newby, French Dornblaser and James Dornblaser her niece and nephews; that James K. Bardin was appointed administrator of the estate of the deceased; that the said administrator filed an inventory which included fifty acres of real estate, which was all the real estate owned by the deceased at the time of her death; that after-wards the administrator presented his petition to the County Court setting forth that the personal estate of the deceased only amounted to $169.60; that the debts allowed against the estate amounted to $2,979.73; that there was a deficiency of personal property to pay the debts and praying for a decree to sell the real estate to pay the debts, which was granted, and the bond of the administrator for the sale of the real estate was fixed at $8,000; that the defendants on February 10, 1910, executed such bond and that afterwards the administrator sold the real estate for $5,275, yet he has not accounted for the proceeds in the maimer provided by law.
    The breach of the condition of the bond assigned is that all of the debts of the deceased properly chargeable against the estate, including costs amount to $503.43; that the personal estate amounted to $169.60 leaving a balance of $333.83 to be paid out of the real estate; that the remainder of the debts were notes, describing them, which Johanna J. Bardin had signed as surety for her husband, James K. Bardin; that the money received on said notes was used by James K. Bardin in his individual business and he received credit for the same on his account at the bank, where he did business; that no part of said notes was for the individual use of the said Johanna; that at the time James K. Bardin was appointed administrator of said estate and up to the time of selling said real estate and the payment by him as administrator of said notes, he was solvent, but that instead of paying his own personal notes, as he should have done, he as administrator allowed the same as claims against said estate, and paid the amount of said notes out of the proceeds of the sale of real estate in addition to the balance due on the individual debts of the deceased; that he then deducted his dower fixed at $816.25 and then paid orie-half of the remainder, $597.03 to himself, as his distributive share as surviving husband of the deceased, and reported in his final report to the County Court the balance $597.03 as due the heirs and that he paid therefrom $156.42 to Martha Hackley, sister of the deceased, as her share, and reported'that there remained due to Kittie Walker $146.89, to Johnston Jeffries $146.89 and to James Dornblaser, French Dornblaser and Nettie Newby, each, the sum of $49.86; that the County Court approved said report without the said administrator having filed any supplemental inventory showing his said notes, so paid by him out of the proceeds of the said real estate, to be a debt due from him, and without requiring said administrator to charge himself with the amounts so paid on the said notes or to account for the same to the estate, and ordered the administrator discharged upon his filing-receipts for the respective amounts so found due the heirs; that the heirs, except Martha Hackley, refused to receipt for said amounts; that said administrator has not been discharged and that, if he will properly inventory and account for the real estate according to law, he should distribute amongst the heirs $2,096.96. It is also averred that although the time has long since elapsed for the inventorying of the amount due on said notes and the distribution of said funds, yet said administrator has not inventoried his said individual notes so paid by him as administrator or paid to said heirs their distributive shares of the proceeds of said real estate, but has wasted and disposed of the same to his own use. The defendants filed a general demurrer to the declaration which was sustained by the court, and a judgment rendered in favor of the defendants. The parties for whose use the suit was brought appeal.
    Emery Andrews, for appellants.
    J. H. Marshall, for appellees.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

The substance of the declaration is that James K. Bardin, as administrator of his wife’s estate under an order of the County Court, sold all the real estate of his deceased wife to pay the claims allowed against her estate, and that out of the proceeds of such real estate he paid $2,828.79 of his own personal debts on which his wife was surety, and that he has failed and refused to inventory and charge himself with that sum as due from himself to the estate.

The contentions of the administrator and his bondsmen are (1) that the estate had no claim against the administrator personally until the estate had paid the notes which Mrs. Bardin had signed as surety for him, and that on the payment of the claims by the estate such claims became personal estate and that he, as surviving husband, takes all her personal estate that remains after the payment of the debts and (2) that he, as administrator, has made a final report in the estate to the Probate Court, which has been approved, therefore the matter now in controversy has been adjudicated and the heirs are concluded by the order of the Probate Court.

There is nothing in the declaration which shows that it was ever brought to the attention of the Probate Court that of the claims amounting to $2,979.93 allowed against the estate of the deceased, and remaining unpaid after the personal estate had been exhausted, $2,828.79, were not debts of the deceased, but were the personal debts of the husband, who as administrator had them allowed against his wife’s estate. While the Probate Court in the settlement of estates and the adjustment of the accounts of executors exercises equitable jurisdiction, so far as may be necessary to adjust the same, (In re Corrington, 124 Ill. 363; Whittemore v. Coleman, 239 Ill. 450; Marshall v. Coleman, 187 Ill. 556;) yet, if the facts concerning the administrator’s primary liability for the $2,828.79 were not brought before the Probate Court, then there has been no adjudication as between the estate and the administrator. An order of the County Court approving an executor’s report, declaring the estate settled and discharging the executor, has the effect only of closing the account up to the time the report is approved, and is void as to unsettled matters of the estate. Starr v. Willoughby, 218 Ill. 485; Atherton v. Hughes, 249 Ill. 317; Diversey v. Johnson, 70 Ill. 647. The administrator has not been discharged although the report filed may have been approved.

The declaration avers that $2,828.79 of the claims allowed and paid by the administrator were his personal debts and that he has neither repaid the estate nor charged himself with any part of such sum. The demurrer admits this statement to be true. The estate descends to the heirs subject to the payment of the debts of the deceased, but not subject to the payment of the husband’s debts, and after the payment of the debts of the deceased the division of the estate among the heirs should be made, and its descent is regulated by the nature of the estate at the time of her death.

The declaration avers that the administrator was solvent. The administrator being financially able to pay his personal debts, upon which his wife was surety, and having paid such debts out of the proceeds of her real estate, should have charged himself with such sums. Wachsmith v. Penn. Mutual Life Ins. Co., 241 Ill. 409; In re Walker, 125 Cal. 242; Baucus v. Barr, 107 N. Y. 624; McCarthy v. Frazer, 62 Mo. 263; Parker v. Irick, 10 N. J. Eq. 269; Rader v. Yeargin, 85 Tenn. 486; McClamrock v. Gregory, 119 Ind. 509; 2 Woerner on Adm. Secs. 311 and 512.

At the time of the death of Johanna J. Bardin, her husband was not indebted to her. It was only by the fraudulent act of the husband in failing to pay his debts and causing them to be paid out of the real estate of his deceased wife, that a claim accrued to the estate against him. The argument of the appellees in effect is that the administrator by his fraudulent financiering has converted his deceased wife’s real estate into personal estate and that he now inherits, by reason of his fraud, what he would not have inherited if he had done what he was able to and ought to have done, and that the court should not compel him to account for property converted from real estate into personal estate in the manner alleged in the declaration, because he as surviving husband inherits all her personal estate. After the proper accounting has been had, the disposition of the property will be made either in the Probate Court or in some other court and is not involved in the decision of the demurrer. The court erred in sustaining the demurrer. The judgment is reversed and the cause remanded with instructions to overrule the demurrer.

Reversed and remanded with directions.


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    Ralph Shaw, by Mary E. Shaw his next friend, Appellee, v. Clifton Corrington, Appellant.
    1. Evidence—when prejudicial. In an action for injury to a boy struck by an automobile, it is improper to permit a person to testify that the driver stated it would teach the boys a lesson to stay out of the street, since such evidence may be used as a foundation for an argument to appeal to the prejudice and passions of the jury.
    2. Evidence—when prejudicial though excluded. It is error to permit a witness in a personal injury suit to relate in detail the condition of the boy injured on coming out from under an anaesthetic and the expression on the nurses’ faces, even though such testimony is finally excluded.
    3. Negligence—evidence of reputation. The reputation of a chauffeur involved in an accident, for carefulness, competency or skilfulness, is not admissible on the question of his negligence, unless in the absence of direct evidence on such question.
    4. Instructions—when erroneous. It is error to give an instruction enlarging the meaning of the statute requiring a reasonable warning to be given by the driver of an automobile, by stating that such warning must be given by some signal device on the machine where there is evidence in the case that the driver shouted.
    5. Negligence—care demanded of children. An instruction relative to the question of due care on the part of a child which leaves out the element of experience should be refused.
    Action in case for personal injuries. Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed June 5, 1912.
    Kirby, Wilson & Baldwin, for appellant.
    Bellatti, Barnes & Bellatti, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an action in case begun by Ralph Shaw, to recover for personal injuries sustained by him by being struck by an automobile driven by Clifton Corrington. The plaintiff recovered a verdict for $1,500 upon which judgment was rendered and the defendant appeals.

At the time of the accident the plaintiff, a boy nearly ten years of age, was a pupil in Lafayette school in the city of Jacksonville. Lafayette school is situated on the south side of Lafayette avenue, which is paved with brick and runs east and west. On the opposite side of the street from the school is a grocery store and west of the store, in the same block, are four dwelling houses. Sidewalks are laid from the east and west sides of the school building to Lafayette avenue and raised crossings run from these sidewalks across the street. On May 3rd, upon the dismissal of the school for the noon hour, the plaintiff as he was leaving the school ran, another boy chasing him, from the west side of the school diagonally in a northwesterly direction across Lafayette avenue to the sidewalk on the north side of the street, and upon reaching the sidewalk turned and immediately started back in a southeasterly direction, running looking back over his shoulder, when he collided with the automobile going-west driven by defendant a few feet south of the north curb, and was seriously injured.

On the trial, the mother of the plaintiff was permitted to testify to a conversation with the defendant, at the hospital—more than an hour after the accident in which she testified that the defendant said “that he was sorry that it happened, but he said it would teach the boys a lesson; they would stay out of the street.” This did not tend to prove any issue in the case but was merely a foundation for an argument appealing to the prejudice and passions of the jury. The Reverend O. J. Gary was permitted to detail on the witness stand the condition of the boy when coming out from under an anaesthetic; that the nurses “were there and had this thing, this little instrument, little tube going into his arm and three of them were there and the looks on their faces.” This the court properly ruled out but it had been heard by the jury and in this kind of a case the effect of such statements would not be overcome by their exclusion.

The defendant sought to prove by witnesses that he was a competent and careful chauffeur. The reputation of a person involved in an accident for carefulness, competency or skilfulness is not admissible on the question of his negligence, unless in the absence of direct evidence on the question. 8 Ency. of Ev. 943; City of Salem v. Webster, 192 Ill. 369. The court properly sustained the objection to that character of evidence.

It is contended that the court erred in giving each instruction given for the plaintiff. The first tells the jury that the statute “commands that every motor vehicle while in use upon a public highway shall be provided with a bell, horn or other signal device and that the statute means that such bell, horn or other signal device shall be sounded as an automobile approaches any portion of the street where persons are upon or crossing or apparently about to cross or go upon the street.” The third instructs the jury that the law “makes it the duty of a person driving an automobile along the street approaching a point where person or persons are- upon, on foot or walking upon or along such public highway, to sound his horn or give reasonable notice with some other signal device of his approach. And if you believe from the evidence that at the time in question and at the point in the public highway where the accident occurred there were a number of school children upon foot or walking upon and along the public highway, and if you further believe from the evidence that a reasonably prudent and cautious person under the circumstances then and there existing would have sounded his horn to give notice of the approach of his automobile to the school children, then and there upon and along such public highway, and if you further believe from the evidence that the defendant did not sound his horn, or give reasonable warning of Ms approach, then such neglect to sound his horn would be negligence.” These instructions are broader than the statute. The ninth section of the act provides that every motor veMcle shall be provided with a suitable bell, horn or other signal device. The seventeenth section provides that: “Upon approaching a person walking upon or along a public Mghway, or a horse or horses—the operator—shall give reasonable warning of his approach and use every reasonable precaution to avoid injuring such person or frightening such horse.”

The statute requires that reasonable warning shall be given of the approach, but does not say what the warning shall be, and that every precaution shall be taken to avoid frightening horses. In the present case the evidence tends to show that a horse was shying at the automobile and defendant testified that he immediately undertook to stop and shouted at the plaintiff. The meaning of the statute should not be extended and made to embrace more than the statute itself expresses, neither should the instructions be repeated. The concrete part of the third instruction gives the law substantially in the language of the seventeenth section of the Automobile act, and there was no necessity for giving the first instruction which attempts to tell the jury what the statute means and enlarges the meaning. The second instruction was an abstract proposition and should not have been given in the form presented. The fourth instruction is: “ The court further instructs the jury that the conduct of a' child of tender years is not to be judged by the same rule which governs that of adults. While it is the general rule in regard to an adult that would entitle him to recover damages for an injury resulting to bim from the fault or negligence of another, he must himself have been free from negligence and fault. This rule, however, when applied to a child of tender years will not prevent a recovery by it uMess it is possessed of that degree of intelligence, prudence and caution which will cause it to know and appreciate and to understand the dangers incident to itself from its wrongful acts and omissions.” This instruction in its direction of what is to be considered in determining the question of what is due care on the part of a child leaves out the element of experience, and minimizes the degree of care required of a child. (L. E. & W. R. R. Co. v. Klinkrath, 227 Ill. 439). It is so worded as to be liable to mislead the jury by giving them to understand that the burden is on the defendant of proving that the plaintiff did not have the intelligence, capacity and experience to appreciate danger. The instruction should have been refused also because of its argumentative nature. The fifth instruction omitted the element of experience in determining the question of due care. The sixth, seventh, eighth and ninth instructions given for the plaintiff were concerning the measure of damages and are substantially duplicates. There was no occasion for giving more than one instruction on that question.

Since the case must be reversed for errors of law we refrain from expressing any opinion concerning the merits of the case as there may be new or additional evidence on another trial.

For the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


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    The People of the State of Illinois, Defendant in Error, v. Cyrenus Spencer, Plaintiff in Error.
    1. Criminal law—instructions. It is reversible error to single out in an instruction in a criminal case and lay specific stress upon particular statements and acts of the defendant where the defendant denied such statements and acts.
    2. Criminal law—instructions. An instruction in a criminal case that the jury may disregard the statement of all' witnesses who had been successfully impeached, except in so far as such witnesses have been corroborated by other credible evidence, is improper where they' are no other instructions explaining the meaning of “successfully impeached,” and is also bad for the further reason that it would authorize the exclusion of evidence where the witness was only impeached on an immaterial question.
    3. Criminal law—instructions. It is reversible error to refuse a properly worded instruction on the presumption of innocence on the part of a person charged with a crime and as to the impartial consideration of his testimony.
    4. Criminal law—instructions. It is reversible error to refuse a properly worded instruction that the question of guilt or innocence of the defendant should be determined solely upon the evidence adduced upon the trial and the instructions of the court.
    Prosecution for wife abandonment. Error to County Court of De Witt county; the Hon. Fred C. Hill, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed June 5, 1912.
    Arthur F. Miller and John Fuller, for plaintiff in error.
    Vernelle F. Browne, for defendant in error; Stone & Gray, of counsel.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is a criminal prosecution begun in the County-Court of DeWitt county by an information, filed by the States Attorney, charging that Cyrenus Spencer “did without just cause abandon his wife, Frances Spencer, and neglect to maintain and provide for her.” On a trial the defendant was found guilty and sentenced to the county jail and to pay a fine.

The evidence is very repulsive and conflicting as to the actions of the defendant and the contradictions are such that the jury should have been accurately instructed.

The sixth instruction given for the people tells the jury that they “may take into consideration any declaration of the defendant concerning his intention to live with his wife, and also any declaration that he may have made, if any such declarations have been proved, together with all the other evidence admitted by the court as to whether he desired to live with her, or did not desire to. live with her in determining whether,” etc. The seventh is: “If you believe from the evidence that after his marriage the defendant had and exercised criminal relations with any other woman than his wife, you may take such fact, if the same has been proved, together with all the other evidence into consideration in determining,” etc. The ninth is: “If you believe from all the evidence in this case be-yo'nd a reasonable doubt that on or about November 5, 1911, the defendant stated to his sisters that he would rather go to the penitentiary for life than live with his wife—then you may take this evidence with all the other evidence admitted by the court into consideration in determining,” etc. The defendant denied the statements and the acts referred to in these instructions and was corroborated to some extent by other witnesses. It was reversible error to single out and lay special stress upon particular parts of the evidence. Sullivan v. Eddy, 164 Ill. 391; Coon v. People, 99 Ill. 368; Hellyer v. People, 186 Ill. 550.

The eighth instruction given for the people is: “You are instructed that in determining the question of fact in this case, you should consider the entire evidence admitted by the court, but you are at liberty to disregard the statement of all witnesses, if any there be, as have been successfully impeached except in so far as such witnesses have been corroborated by other credible evidence or by facts and circumstances proved on the trial.” While this instruction has been approved in Miller v. People, 39 Ill. 459; and Hill v. Montgomery, 184 Ill. 220; yet in Beedle v. People, 204 Ill. 197, the instruction is condemned and said to have been departed from in the more recent cases of Galliher v. People, 82 Ill. 145; Healy v. People, 163 Ill. 272; Matthews v. Granger, 196 Ill. 164; and in Chicago City Ry. Co. v. Ryan, 225 Ill. 287; where the only impeachment of a witness was by contradictory evidence, it was said the instruction should not have been given.

The usual instruction that if the jury believe any witness has willfully sworn falsely to any material fact in issue then they had the right to disregard his entire testimony except where corroborated, was properly given at the request of the people. If any witness had willfully sworn falsely on an immaterial question an instruction might not be given telling the jury they may disregard the entire evidence of such witness except as to such parts as the witness was corroborated by credible evidence. A witness might be impeached on an immaterial question, and the eighth instruction would authorize the jury to disregard the entire evidence of such witness, while if he had willfully sworn falsely on such immaterial matter the jury could not properly be authorized to disregard his evidence. Peak v. People 76 Ill. 289; Beedle v. People, 204 Ill. 200. It is now well settled that it is only willfully swearing falsely to a material matter that will authorize a jury to disregard the entire testimony of a witness. Even if the eighth instruction had been proper, there was no instruction telling the jury the meaning of “successfully impeached,” or how a witness may be impeached.

The court refused the following instructions asked by the defendant: “The jury have no right to disregard the testimony of the defendant on the ground alone that he is the defendant and charged with the commission of an offense. The law presumes the defendant to he innocent until he is proved guilty, and the law allows him to testify in his own behalf and the jury should fairly and impartially consider his testimony together with all the other evidence in the case,” and “You are instructed that in determining the question of guilt or innocence of the defendant you should do so solely upon the evidence adduced upon the trial and the instructions of the court, and none other, unaided and uninfluenced by any knowledge if any, you may have gained from any other source.” These are stock instructions in criminal cases and their refusal was reversible error. The judgment is reversed and the cause remanded.

Reversed and remanded.