source: Caselaw Access Project

license: Public Domain

text:
    Homer K. Galpin, Complainant, v. City of Chicago et al., Defendants. Separate Appeals of State Board of Pharmacy, Illinois State Board of Dental Examiners and The Anti-Cruelty Society.
    Gen. Nos. 16,015, 16,016, 16,017.
    1. Statutory law—when repeal by implication arises. A repeal by implication arises where the law infers a repeal because of absolute necessity, owing to such conflict between an earlier and a later statute that both cannot stand together. The repugnancy of the two statutes compels the court to infer from the enactment of the later statute a legislative intent to repeal the earlier act.
    2. Statutory law—when repeal by implication does not arise. An implied repeal on the ground of conflict or repugnancy will not occur in any instance, unless both the object and the subject of both the earlier and the later statute are the same. If their objects are different both must stand. In such case the conflict is merely apparent, although both relate to the same subject, and when the language of each statute is restricted to its own object the two will run in parallel lines without meeting. It is necessary to the implication of a repeal that the objects of the two statutes are the same; if they are not, both will stand, though they may refer to the same subject.
    3. Statutory law—effect where conflicting statutes are passed upon the same day. Statutes passed on the same day and to take effect at the same time will all be assumed to have been enacted at the same time and are to be construed as one act. Such construction should be given, if possible, as shall leave all to stand. If this cannot be done, only so much is to be disregarded as cannot stand.
    4. Municipal Court—section 57 of act of 1907 construed. Section 57 of the act of 1907 insofar as it appropriates fines, penalties and forfeitures to the city to satisfy “uncollected costs,” does not affect the appropriations previously made by statute in favor of the State Board of Pharmacy, the State Board of Dental Examiners and the Anti-Cruelty Society; the appropriations in favor of these several organizations out of fines, penalties and forfeitures remain intact and wholly unaffected by said section 57 of the act of 1907.
    Bill in equity. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honors, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed December 2, 1910.

      E. J. Frankhauser, for Illinois State Board of Pharmacy, appellant.
    V. A. Wright, for The Illinois State Board of Dental Examiners, appellant.
    Johns & Wood (Bowen W. Schumacher, of counsel), for The Anti-Cruelty Society, appellant.
    Tolman, Redfield and Sexton, for South Park Commissioners, appellant.
    Edward J. Brundage, for appellee, City of Chicago; Edwin H. Cassels, of counsel.
   Mr. Justice Chytraus

delivered the opinion of the court.

These appeals are prosecuted from the same decree and upon the same record as was the appeal of John J. Healy in the above entitled cause, which appeal has already been disposed of at this term of court. It is unnecessary now to make any statement of the facts and the controversy involved, because the statement, which precedes the opinion in the appeal of Healy, covers the facts sufficiently for a full understanding of the questions in these appeals. Beference is therefore made to that statement. Ante p. 135.

At the time of the passage of the Municipal Court Act in 1905 and of the Act amendatory thereof in 1907, the State Board of Pharmacy existed as a state governmental agency under an enactment by the legislature upon a special, subject, entitled “An Act to regulate the practice of pharmacy in the State of Illinois, to make an appropriation therefor, and to repeal certain acts therein named,” approved May 11, 1901, and in force July 1, 1901. This act is part of chapter 91 of the revised statutes, entitled Medicine and Surgery. Among other things the act provides for the registration of pharmacists and assistant pharmacists and prohibits any person not registered from conducting a pharmacy or drug store and from serving as clerk or salesman in the sale of drugs or medicines. It forbids, also, the adulteration or alteration of drugs, chemicals, medicines or pharmaceutical preparations. The act provides for the prosecution and punishment of offenders against the various provisions thereof by the imposition of fines and makes it the duty of the state’s attorney of the county, wherein offenses are committed, to prosecute upon proper complaints being made. Section 15 thereof provides that “All penalties collected under the provisions of this act shall inure to the Board of Pharmacy.” The existence of the board and the enforcement of the provisions of the act involve sundry expenses. Section 11 provides that the secretary of the board shall receive his expenses and a salary, not exceeding $2,500 per year, to be fixed by the board; that the members shall receive their necessary expenses and five dollars per day for actual service; and that these “expenses shall be paid from the fees, penalties and appropriations received by the board under the provisions of this act.” No appropriation except the fees for examinations and registrations and the penalties for offenses against its provisions is provided for by the act. The amount of the fines for prosecutions under the Pharmacy Act found by the decree to have been collected and to be held by complainant is $1,431.50.

The Illinois Board of Dental Examiners exists as a state governmental agency under an act entitled “An Act to regulate the practice of Dental Surgery and Dentistry in the State of Illinois, and to repeal an act therein named,” found in chapter 91 of the Revised Statutes. It was approved on the same day, namely, May 18, 1905, and went into effect on the same day, namely, July 1, 1905, as the Municipal Court Act of 1905. In a general way it may be said the act regulates the practice of dentistry in the State of Illinois, as the pharmacy act regulates the practice of pharmacy. Section 9 of this act provides that all expenses for carrying out and enforcing the provisions of the act “shall be paid from the fees, fines and penalties received and recovered by the board nnder the provisions of this act, provided, that no part of said expense shall be paid out of the state treasury.” In section 11 it is provided that: “All fines imposed and collected under this act shall be paid to the Illinois Board of Dental Examiners for its use. ’ ’ The amount of fines in prosecutions under the Dental Surgery act, found by the decree to have been collected and to be held by complainant, is $880.

The defendant Anti-Cruelty Society, incorporated and existing under and by virtue of the laws of the State of Illinois, is a society for the prevention of cruelty to animals and to children. In chapter 38, being the Criminal Code, of the Revised Statutes of this state is to be found an act entitled “Am Act to provide for the payment of fines paid in money upon all prosecutions for cruelty to animals and children, to the support of societies for prevention of cruelty to animals and children or humane societies,” approvéd June 23, 1885, and in force July 1, 1885. This act is as follows:

“Section 1. That all fines, paid in money, imposed through the agency of any humane society or society for the prevention of cruelty to animals and children under the laws of the State of Illinois, shall when collected, be paid into the treasury of such society, to be applied towards its support.
“Section 2. That all the fines paid in money imposed through the agency of any humane society (or society for the prevention of cruelty to animals and children) under the laws or ordinances of any city, town or village, within the State of Illinois, may, when collected, be paid into the treasury of such society: Provided, such society named in this act shall be incorporated under and by virtue of the laws of the State of Illinois.”

By the decree it appears that the complainant, as part of the fund in question, has in his hands $678, collected by him for fines imposed through the agency of the Anti-Cruelty Society.

As shown in the case of Healy’s appeal aforesaid, the amount of the fund arising from fines collected, in criminal and quasi-criminal cases prosecuted in the name of the people, in the hands of complainant was $102,285.25 and was insufficient to pay the total of the claims made by the several defendants, including the state’s attorney and the city.

The • decree directs, in effect, that $2,374 be first taken out of the fund arising from the collection of fines and in the complainant’s hands and paid to the three boards of park commissioners. This amount is in total of the one-half of the fines imposed and collected for violations of park ordinances and of the whole of all the fines imposed and collected for violations, within park territorial jurisdictions, of the Motor Vehicle Law of the State. The one-half of the fines for violations of park ordinances' was evidently decreed to be paid to the park commissioners in accordance with the provisions of section 58 of the Municipal Court Act. The fines for violations of the Motor Vehicle Law were decreed to be paid to the park commissioners in accordance with the provisions of section 19 of the Motor Vehicle Law, part of chapter 121 of the Revised Statutes, in force July 1, 1907, and evidently upon the theory that the Motor Vehicle Law was passed later than or simultaneously with the passage of the Municipal Court Act. Allowing a priority in right to the park commissioners and taking this amount of $2,374 out of the fund, leaves a remainder of principal of $99,911.25. As to these pri-. orities no dispute is made.

The city’s claim is made under section 57 of the Municipal Court act and is for $38,185.20 for unpaid costs in criminal and quasi-criminal cases, wherein convictions were had, prosecuted in the name of the people or some state or county officer in his official capacity, and for. $64,088 for unpaid costs certified to the criminal court in preliminary examinations where the defendants were held to the criminal court. While the record, as held in the Healy appeal, justifies a decree that the city is entitled to be paid the $38,185.20, it does not justify a decree that the city had a right to be paid the $64,088. Whether the city is entitled to be paid the whole or any part of the latter amount and, if it be entitled to be paid a part thereof, then how much, remains open to question, so far as this case is concerned.

Healy’s claim for services as state’s attorney for Cook county is $51,103.79. This amount he is entitled to "be paid and, as held in the Healy appeal, prior to the payment to the city of Chicago of any money out of such fines and forfeitures collected. According to the pleadings and the decree, sufficient money remains in the hands of complainant to pay the three appellants herein all that they claim, after the payment to the park commissioners and to Healy of all they are entitled to. It is therefore unnecessary now to inquire whether money collected for fines in prosecutions under the-pharmacy law, the dental law or the anti-cruelty law may be used toward paying the Healy claim. Furthermore, in People v. Nedrow, 122 Ill. 363, it was held that the state’s attorney’s lien extended to fines imposed under the pharmacy law and gave him an interest in those fines which, at least to the extent of his fee in each particular case, was superior to the right of the State Board of Pharmacy.

The remainder of the fund in complainant’s hands, after the payments to the park commissioners and Healy, may or may not be sufficient to pay in full these three appellants and the city. The possibility of the remainder being insufficient requires a determination as to the relative rights of these latter parties.

Regarding the claims of these appellants the decree finds and decrees “that the defendant herein would be entitled to receive from complainant, in case the funds in his hands were sufficient, the sums which they and each of them respectively claim” if there were any remainder, after the payment of the claims of the city, the park commissioners and Healy, bnt that, as the money in the hands of complainant is insufficient to pay the claims of the city and the park commissioners, therefore nothing shall be paid to any of the other defendants.

It is the theory of the city, and of the decree, that as section 57 makes no distinction between fines imposed in the ordinary criminal or quasi-criminal cases and those imposed under the enactments whereunder appellants claim, therefore no distinction is to be observed but all fines are to be regarded as equally subject to be used to satisfy the claim of the city, and, further, that because section 57 was enacted later than the enactments upon which the appellants respectively predicate their claims, therefore a legislative intent to give priority is to be inferred in favor of the purposes provided for by said section 57.

As stated in the opinion in the appeal of Healy, fines, penalties and forfeitures collected are primarily the state’s money. By various enactments, always general in their nature and of uniform operation throughout the entire state though changed in verbiage from time to time, the legislature has, since early in the history of the state, in anticipation, appropriated the receipts from fines, penalties and forfeitures to the common school funds of the various counties wherein the same have been imposed. The law in force, in this respect, at the time of the first enactment of section 57 of the Municipal Court act is to be found in section one of article XIV, chapter 122, of the Revised Statutes of 1905 and as revised in 1909 it is to be found in section 238 of the School Law in the session laws of that year.

From time to time new statutory regulations have been enacted prohibiting acts not before prohibited by statute and imposing fines and penalties for violations of these statutory prohibitions. When enacting these new laws, the legislature has seen fit sometimes specifically to appropriate, in whole or in part, the fines and penalties which would result from infractions of these laws to be used for or toward the maintenance of a state agency created to enforce the new statutory regulation, as, for instance, in the enactment of the state board of health law, the law regulating employment offices and agencies, and the law for the protection of game, etc. Fines and penalties have also been appropriated in anticipation to be used for the purpose of aiding in bringing about the apprehension and punishment of offenders, for instance, in the enactment of laws providing for the payment of some part of the fines to informers, as in qui tarn actions and actions on penal statutes. The dental act, the pharmacy act and the act to prevent cruelty to children and animals, under which appellants claim, are enactments whereby the legislature has established new statutory regulations and, at the same time, appropriated the fines imposed thereunder toward the enforcement of these enactments. We have given this consideration to the nature of the laws under which appellants claim, because we consider their nature to be material in determining upon the city’s claim of the legislative intent to give priority.

The position of the city herein is somewhat anomalous. On its behalf, it is urged that it has the right to be paid first and it is also conceded that, whenever sufficient money is collected of fines, penalties and forfeitures to pay both the city’s claim on account of uncollected costs and appellants’ claims for fines imposed under the acts whereupon they predicate their claims, then appellants are entitled to be paid. Such condition of the law cannot arise by implication from the fact of the latter passage of the act under which the city claims. The later enactment of section 57 either repealed the earlier acts, or it did not affect them at all.

A repeal sometimes occurs by implication, where there is no express repeal. A repeal by implication arises where the law infers a repeal because of absolute necessity, owing to such conflict between an earlier and a later statute that both cannot stand together. The repugnancy of the two statutes compels the court to infer from the enactment of the later statute a legislative intent to repeal the earlier act. Where it is possible to reconcile the two acts, courts cannot infer an intent to repeal the former.

“It is a maxim in the construction of statutes that ■ the law does not favor a repeal by implication. The earliest statute continues in force unless the two are clearly inconsistent with and repugnant to each other, or unless in the later statute some express notice is taken of the former, plainly indicating an intention to repeal it; and where two acts are seemingly repugnant, they should, if possible, be so construed that the latter may not operate as a repeal of the former by implication.” People v. Raymond, 186 Ill. 407, 416.

An implied repeal on the ground of conflict or repugnancy will not occur in any instance, unless both the object and the subject of both the earlier and the later statute are the same. If their objects are different, both must stand. In such case the conflict is merely apparent, although both relate to the same subject, and when the language of each statute is restricted to its own object the two will run in parallel lines without meeting. It is necessary to the implication of a repeal that the objects of the two statutes are the same; if they are not, both will stand, though they may refer to the same subject. United States v. Claflin, 97 U. S. (7 Otto) 546. The object of section 57, under which the city claims, is entirely different from the object of either of the statutes under which the appellants severally claim. We cannot apply here the doctrine of repeal by implication. We are unable to deduce from the language of section 57 any such radical legislative purpose as would be an intention to hamper or destroy several of the state’s governmental agencies in Chicago, which agencies have been and are exercising the police power of the state for certain purposes in a portion of the state where the necessity is greatest for the exercise of the power for those purposes. The state has made no. appropriation for the maintenance of these agencies other than the fines and penalties which are collected for violations of the laws which these agencies exist to enforce. We cannot assume a legislative intent to cripple these agencies. The seeming inconsistency between section 57 and the acts under which appellants claim is obviated by applying section 57 to that part only of the state’s fines, penalties and forfeitures which were not already specifically appropriated at the time of the enactment of section 57, that is, by applying the later enactment to the residuum not previously disposed of.

Furthermore, the dental act was not passed before the Municipal Court act. The dental act was approved on the same day, and went,into effect on the same day, as the first enactment of section 57 in 1905. So far as the questions now before us are concerned, the section was not changed by the new enactment of that section in 1907. “Statutes passed on the same day, and to take effect at the same time, will all be assumed to have been enacted at the same time and are to be construed as one act. Such construction should be given, if possible, as shall leave all to stand. If this cannot be done, . only so much is to be disregarded as cannot stand. * * * The courts are continually called upon to revise the results of careless and sometimes reckless legislation; to try to make consistent that which is inconsistent; to harmonize that which is full of discord. This they must do the best they can by known rules of construction.” Territory v. Wingfield, 15 Pac. Rep. 139. When statutes are passed at the same session to take effect the same day, that is strong evidence that they were intended to stand together. Commonwealth v. Huntley, 156 Mass. 236.

For the reasons herein set forth, the decree of the Circuit Court is reversed and the cause is remanded for further proceedings not inconsistent herewith.

Reversed and remanded.


author: Per Curiam.

text:
    Fred C. Ballweg et al., Appellants, v. Board of Election Commissioners et al., Appellees.
    Appeals and errors—failure to file proper abstract. A mere index of the record is not an abstract within the requirements of the rules of the third district, and for failure to comply with such rules by the filing of a sufficient abstract an affirmance will be ordered.

      Mandamus. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed December 7, 1910.
    W. H. Nelms and Alfred Adams, for. appellants; Rufus M. Potts, of counsel.
    H. L. Sheldon, for appellees.
   Per Curiam.

Buie 22 of this court requires that a party bringing a cause into this court shall furnish a complete abstract or abridgment of the record. The purported abstract furnished by appellants in this cause is a mere index of the record and wholly fails to meet the requirements of the rule. For the failure of appellants to comply with said rule of this court the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    V. H. Parke & Son Company, Appellant, v. Almon D. Thompson, Appellee.

      Contracts—“estimated” construed. Held, that the word “estimated” in the connection used, was the equivalent of “about” or “approximately,” which words when applied to number or quantity mean the specific number or quantity named less slight or immaterial deviation.
    Assumpsit. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.
    Heard in this court at the November term, 1909.
    Reversed and remanded.
    Opinion filed December 1, 1910.
    Le Forgee & Vail, for appellant.
    Jack, Irwin, Jack & Miles, for appellee.
   Per Curiam.

This is an action in assumpsit by the appellant corporation, a wholesale dealer in cement, doing business in Decatur, Illinois, against appellee, a contractor in Peoria, Illinois. The cause was tried by the court without a jury, and at the close of the plaintiff’s evidence the court, upon motion of the defendant, rendered judgment in his favor and against the plaintiff for costs. This appeal is prosecuted to review such judgment. The special counts of the declaration are predicated upon the contract between the parties which it is agreed is embodied in the three following writings:

(Exhibit 8).

“Memoranda of Prices, Subject to Conditions on Reverse Side of this Sheet, and cancelling all Previous Quotations.
V. H. Parke & Son Co.
Decatur, Ill. Mar. 30th, ’07.
At.mon D. Thompson, Esq.,
Peoria, Illinois.
Terms Net 10th month following delivery.
Authority Q-. J. P. What Job Concrete sewer.
Quantity Estimate 5,000 bbls.
To be Shipped on or About In total prior to J any. 1st 1908.
For immediate acceptance, we quote ATLAS Portland Cement as follows
F. O. B. Cars Decatur, Illinois
In barrels, including barrels at......$......per bbl.
In cloth bags, including bags at $2.03 per bbl. xxx
We will purchase Atlas cloth bags as shipped by us, 7% c. each, subject to conditions named in Clause Ten on the reverse side of this sheet, xxx.
A Carbon Copy of this Sheet is filed in our office.
Y. H. Parke & Son Company Pee Gr. J. Parke.
Terms and Conditions of Sale and Shipment.
1st All prices subject to change without notice. Quotations and contracts shall not be binding until orders have been accepted by us in writing, xxx
2nd xxx
3rd xxx
4th xxx
5th xxx Shipments will be made on or as near the date as named for shipment in the contract as possible, and the purchaser hereunder agrees to accept shipment so made, after cars have been billed out of the mill, unless we are notified in writing by the purchaser hereunder to cancel shipments in ample time prior to cars being billed' out of the mill.
6th xxx
7th xxx
8th all sales are made subject to advance in freight rates until cars are receipted for by Railroad Companies. Any increase in cost of freight from mills to points of delivery to be added to the price quoted or billed.
9th xxx
10th Cloth bags are returnable to Decatur, Illinois, for credit, when shipments are made in local lots out of stock Decatur. Cloth bags are returnable to mill for credit, when shipped as car lot from mill. Freight must be prepaid on returned sacks and are subject to our mill recount. All cloth bags must be paid for at time invoice is paid.
11th Bill lading for all sacks returned to us or the mill, must be mailed to us as soon as shipment of bags is made.”

(Exhibit 9).

“Decatur, Ill., Apr. 10, 07.
“Agmon D. Thompson, Peoria, Illinois.
We beg to acknowledge receipt of your order by..... personally... .date... .Apr. 10- 07- ... .for Approximately 5000 barrels—Atlas Portland Cement in cloth .....Shipment will be made as per our letter of this date. Upon conditions of our quotation to you Dated Mar. 30- 1907-
In making inquiry refer to our Number 1037.
Thanking you for this valued order and awaiting your further favors we remain,
V. H. Parke & Son Company, per G. J. Parke.
Accepted Almon D. Thompson.”

(Exhibit 10.)

“Decatur, Ill., April 10, 1907.
“Mr. A. D. Thompson, Peoria, Ill.
Confirming our conversation to you to-day, at which time you placed an order with us for some 5,000 barrels of Atlas Portland Cement, same registered under our No. 1037, would say that in shipping this cement to you we will request that you advise us at least ten days prior to your needing cement for your work here, and at that time state to us how many barrels per week we shall list at the mill to be shipped regularly. You understand that shipments thus listed at the mill will be shipped according to the amount named per week, and in case that work is stopped and cement not needed you are to give us ample notice of such stoppage of work and we will have the mill hold up the shipments. When you wish to resume work requiring cement on this contract you are to advise us as noted in the first part of this letter, for resumption of shipments.
Y. H. Parke & Son Co.”

The declaration consists of the common counts and three special counts. The first count, after the formal parts, avers that on April 9, 1907, the plaintiff sold to the defendant approximately 5,000 barrels of Atlas Portland cement at the price of $2.03 per barrel, according to the terms and conditions of the contract hereinbefore set forth; that the time for delivery of the cement had long since elapsed, and that the plaintiff had always been ready and willing to furnish and deliver the same in accordance with the terms of the contract, of which the defendant had notice; that the defendant would not receive the cement so purchased, except 2896 barrels thereof, and had refused to comply with his agreement; whereby the plaintiff had been deprived of great gains and profits, etc.

The second count avers the sale of the cement at the price of $2.03 per barrel, in accordance with the terms of the contract in question; that from the time of the making of the contract up to and including January 1, 1908, and afterwards, the plaintiff was ready and willing and tendered and offered the cement to the defendant, but that the defendant had refused to accept the same.

The third count avers that on April 10,1907, the defendant bought of the plaintiff approximately 5,000 barrels of Atlas Portland cement, at $2.03 per barrel, according to the contract in question; that from April 10,1907, up to January 1,1908, the plaintiff was ready and willing at all times to perform its part of the agreement in accordance with the terms and conditions aforesaid and often requested the defendant to accept and pay for the cement, and that although the defendant should have accepted and paid for the cement within the period ending on January 1, 1908, yet he did not receive and pay for any of it except 2896 barrels thereof; wherefore the plaintiff on March 1, 1908, sold the residue of said lot of cement remaining unaccepted, to the highest and best purchaser, at a loss of 46 cents per barrel on every barrel thereof.

The defendant pleaded the general issue and gave .-otice in writing of the following special defenses thereunder: That said contract was entered into with reference to the construction of a certain sewer which the defendant had then and there agreed to construct for the city of Decatur, and in the construction of which it was then and there contemplated that defendant should require approximately 5,000 barrels of cement during the year 1907, to be delivered to him by plaintiff from time to time during’ said year 1907 and prior to January 1, 1908, as the necessities of defendant in said construction should require, of all of which plaintiff then and there had notice; also, that in the construction of said sewer during the year 1907, the defendant did not require, and could not use, in and about the said work, the amount of 5,000 barrels of cement estimated in said contract, but only required and could only use the quantity from time to time during said year directed by the defendant to be shipped by plaintiff, and which was, in pursuance of such directions, shipped and delivered to defendant, to wit: 2,896 barrels; for all of which cement so required and used by defendant in such work during the year 1907, he at the time when the several deliveries thereof became due and payable in accordance with said contract, paid the said plaintiff at the prices stipulated in said contract.

The evidence shows that during February or March, 1907, the defendant entered into a contract with the city of Decatur, for the construction of a sewer, and that Mr. Parke, secretary and treasurer of the plaintiff company, entered into negotiations with the defendant with the view to selling him cement to be used in the construction of such sewer, which finally resulted in the execution of three instruments, Exhibits “8,” “9” and “10,” hereinbefore set forth. The evidence further shows, that the amount of cement actually delivered to Thompson under the contract was 2,896 barrels, the last shipment having been made about November 27, 1907; that the amount of profit per barrel on the contract between the plaintiff and the defendant, and the contract between the plaintiff and the Atlas Portland Cement ■ Company, was 11 cents per barrel, and that by reason of the alleged breach of the contract by the defendant, and the compulsory re-sale of the cement by the plaintiff, the plaintiff suffered a loss of 35 cents per barrel. The evidence further shows that the total amount of cement used by the defendant in the construction of the sewer was 5,453 barrels; that the work under the contract with the city was to be completed by January 1, 1908, but owing to weather conditions he was unable to complete such contract by that time, and obtained from the city an extension of the time. On July 6, 1907, appellee wrote appellant a letter (Exhibit 17) cancelling his order, assigning various reasons therefor. July 9, 1907, appellant replied by letter (Exhibit 18) denying that the reasons assigned for cancellation existed, and concluding as follows:

“We have been ready, able and willing at all times to comply with this contract and had the same examined and are advised that it is good in form and substance, and that we are secure in our rights. We, therefore, beg to inform you that the material named and specified in this contract will be furnished you according to the terms and effect of the same and that a failure, neglect or refusal upon your part to comply with the same will be met in the first instance by prompt measures to enforce our rights. We trust you will govern yourself accordingly.”

The questions presented by the record are, first, the construction of the written contract between the parties, which it is agreed consists of the three instruments hereinbefore set out, and second, does the evidence offered in behalf of the plaintiff establish the averment of the declaration of the plaintiff’s readiness and willingness to furnish and deliver the cement contracted for within the time when the same was to be delivered, as alleged in the first count, its readiness and willingness and offer to deliver alleged in the second count, and its readiness and willingness to deliver and its request upon the defendant to accept the same, as alleged in the third count. It is contended by appellant that the effect of the use of the word “estimated” in the phrase of the order, “Quantity estimated 5000 bbls.” is to constitute an order for 5000 barrels, while appellee contends that a fair and reasonable interpretation of the writings, when considered together, warrants the construction indicated by his notice of special defense, i. e. that the contract was but to furnish appellee such cement as he might use upon his sewer work in the city of Decatur during the season of 1907. We are of opinion that the words “concrete sewer” do not create an ambiguity as to the quantity of cement ordered, and should be treated as merely descriptive, and not controlling, and that the word “estimated” in the connection used, is equivalent to “about” or “approximately,” which words are by the greater weight of authority, especially by the following cases, held to mean the number or quantity named less slight or immaterial deviation in weight or count due to usual or ordinary causes which prevent an accurate estimate, and that a contract containing such or similar expressions should be regarded as “an absolute contract for a specific quantity within reasonable limits. ’ ’ Cabot v. Winsor, 1 Allen 546; Bourne v. Seymour, 16 C. B. 337; Shickle v. Chouteau, 10 Mo. App. 241, affirmed 84 Mo. 161. Our conclusion is, therefore, that the writings in question constituted an order for 5000 barrels of cement to be delivered to appellee as demanded on or before January 1, 1908, and that he was legally bound under such a contract to accept and pay for that quantity.

Appellee further contends that before a recovery can be had for the breach alleged in the declaration, the evidence must establish that the appellant company was ready and willing to deliver the balance of the cement at any time prior to January 1, 1908, or that it tendered and offered to deliver it during the same period, or that it often requested appellee to accept and pay for it, that appellee had knowledge of this readiness to deliver, and when the tender was brought home to him, or after he had received such requests for acceptance of the balance of the cement, he refused to accept and pay for the same. While the record fails to disclose that prior to January 1, 1908, any tender or offer was made by appellant to deliver the balance of the cement due under the contract, or that it requested appellee to accept and pay for the same, as alleged in the second count of the declaration, we think it does sufficiently appear from testimony of Mr. Parke and the letter, Exhibit 18, referred to, that appellant was ready and willing to furnish and deliver the cement contracted for within the time the same was to be delivered, as alleged in the first and third counts. In the absence of proof to the contrary, we are disposed to hold that appellant performed its part of the agreement as averred in the declaration.

Under the foregoing views, the trial court erred in directing a verdict for the appellee, and the judgment based thereon must be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Puterbaugh

text:
    Martha E. Worthy, Appellant, v. Kenner S. Boreman et al., Appellees.
    1. Change of venue—when application not in apt time. “A party cannot wait until a cause is on trial and until' the court has intimated an opinion on the merits of the cause from the evidence, and then obtain a change of venue.”
    . 2. Solicitob’s fees—when allowance will not he disturbed. Notwithstanding a chancellor would have been justified in allowing a larger sum for solicitor’s fees than that awarded, the sum fixed by the decree will not be disturbed unless clearly inadequate.
    Bill in chancery. Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding.
    Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed December 7, 1910.

      William Garnett and J. J. Rea, for appellant; C. S. Babcock, pro se.

    William E. O’Neill and A. D. Mulliken, for appellee, Susan C. Day.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

Upon a former appeal of this cause to this court, a decree granting an injunction upon the cross-bill herein was sustained. The antecedent pleadings and proceedings are substantially detailed in the opinion then rendered. Worthy v. Day, 143 Ill. App. 274. After remandment Babcock filed a plea to said cross-bill alleging that inasmuch as none of the parties to said cross-bill resided in Champaign county, and that the proceeding was not local in nature, the Circuit Court of Champaign county had no jurisdiction, which plea was overruled. A demurrer interposed by Mrs. Worthy to the cross-bill was also overruled.

On January 7,1909, the master in chancery filled his report on the original bill, answer, and evidence taken by him, wherein he found the issues for the complainant and that Mrs. Day was indebted to Mrs. Worthy in the sum of $9,412, being the face of the note and interest, together with the sum of $4,000 found to have been expended in freeing the premises of prior liens, and the further sum of $300 solicitor’s fees, and recommended a decree therefor. Mrs. Day filed exceptions to said report, and after hearing the same the chancellor reserved his decision thereon until the issues upon the cross-bill should be determined. Mrs. Worthy then filed a plea to the cross-bill setting up that an accounting had already been had in the proceedings under the original bill and answer, as to the matters alleged in the cross-bill. This plea was overruled, whereupon Mrs. Worthy answered the cross-bill denying all of the allegations of the same so far as they charged combination or attempt to collect sums of money from Mrs. Day not justly due, and further denying that the note and trust deed were given to raise money to discharge the liens upon the property; alleging that Mrs. Worthy had paid Babcock the sum of $5,000 in addition to the sum of $4,000 and was the absolute owner of the notes secured by the trust deed, and denying that the suit in the Municipal Court was for the purpose of recovering the same sums sought to be recovered by the original bill; alleging that Mrs. Day was estopped by a decree of the Champaign Circuit Court entered April 4, 1904, in the case of the Citizens Building Association against said Susan C. Day, Chicago Title & Trust Company and others, wherein the said court found that on October 9, 1903, said Susan C. Day executed said trust deed to secure the notes in question and that said notes were unpaid, and that the trust deed was a valid lien upon said premises, and further by another decree entered in said court on June 4,1904, in the case of Urbana Home Loan Association against the said Susan C. Day and the Chicago Title & Trust Company wherein similar findings were made.

On February 29, 1908, Mrs. Worthy and Babcock filed their petition for a change of venue, setting up the prejudice of the presiding judge, and that knowledge thereof had come to Mrs. Worthy on February 26, 1908, and to Babcock on February 21, 1908, and that application had been made at the first sitting of the court held after such knowledge had come to them. The court on the same day overruled the petition for a change of venue and entered a default against Babcock for failure to answer, and sustained a demurrer to the plea of Mrs. Worthy. The cause afterward came on for hearing on the cross-bill and answer, and the report of the master in chancery. The chancellor entered a decree finding, in substance, that' prior to and at the time the notes were executed and delivered, Babcock had been and was acting as the attorney and solicitor for Mrs. Day in certain litigation in which she was involved, and continued so to act until March, 1906; that said notes were given in order that Babcock might hypothecate the same and use such of the proceeds as was necessary to protect the property mortgaged from being sacrificed by the enforcement of certain liens upon the same, and to the extent of the excess to secure to Babcock payment for legal services theretofore and thereafter to be rendered by him; that Babcock thereafter borrowed of Mrs. Worthy the sum of $4,000 and to secure re-payment of the same assigned said notes to her, and with the money so borrowed paid off the liens upon the property. The decree further finds that a reasonable compensation for the legal services of Babcock was the sum of $3,000; that Mrs. Worthy was entitled to a decree for the sum of $4,000 advanced by her, with interest, and the sum of $300 as her reasonable splicitor’s fees; that Babcock was entitled to the excess by reason of his lien upon the same for his services, and to a personal decree against Mrs. Day for the amount remaining due him over and above such excess; that Mrs. Day had paid to Babcock the sum of $1,188.91, which he had applied on the payment of expenses incurred in her behalf, but that inasmuch as Babcock had failed to keep any account of the money claimed by him to have been paid out for the use of Mrs. Day, it was impossible to determine the amount thereof. The decree further finds that the action instituted by Babcock against Mrs. Day in the Municipal Court of Chicago, other than the claim for rent, was for the same legal services 'for which he was seeking to recover in the suit at bar, and that the injunction theretofore issued against the prosecution of said action should be and was made perpetual except as to such claim for rent. The decree directed that Mrs. Day pay to Babcock the sum of $1,000 and to Mrs. Worthy the sum of $4,807.30, ■ together with $300 solicitor’s fees, and that in default thereof the premises be sold, etc., and further that she pay to Babcock the sum of $3,000 together with legal interest thereon from March 20,1909. To reverse such decree this appeal is prosecuted by Mrs. Worthy and Babcock has assigned a number of cross-errors.

It is assigned as error that the chancellor erred, (1) in refusing to grant a change of venue; (2) in not sustaining the demurrer of Mrs. Worthy to the cross-bill; (3) in refusing to dismiss said cross-bill because the allegations of the same were not supported by the evidence; (4) in refusing to hold that as holder of the notes as collateral security, Mrs. Worthy was entitled to a decree of foreclosure for $9,000 and interest, and (5) that the amount allowed to Babcock for legal services was inadequate under the evidence.

We do not think the chancellor erred in refusing to grant the motion of appellant and Babcock for a change of venue. The abstract of the record discloses that exceptions to the master’s report on the original bill were argued on January 25, 1908, by Babcock in person, and by the solicitor for Worthy, and that they also filed written briefs, whereupon the court took the case under advisement, reserving his finding until a final hearing on the cross-bill. We are of opinion that the motion was not filed in apt time. “A party cannot wait until a cause is on trial and until the court has intimated an opinion on the merits of the cause from the evidence, and then obtain a change of venue. Such practice would lead to endless delay in the trial of causes, and it is not authorized by the statute and cannot be encouraged.” Richards v. Greene, 78 Ill. 525. We are of opinion that the chancellor was fully warranted in overruling the motion for change of venue. The question as to the propriety and sufficiency of the cross-bill is practically disposed of by our former opinion.

We are satisfied after a full consideration of all the evidence upon the question, that while the chancellor would have been warranted in allowing a larger amount to Babcock for his legal services, the sum found by the decree was not so inadequate as to warrant our distributing such finding. “In taxing such fees the chancellor should exercise his own judgment and not be wholly governed by the opinion of attorneys as to the value of the services. He had the requisite skill and knowledge to form some idea as to what is a fair and reasonable compensation, and he should exercise that judgment. He should no doubt consider the opinions of witnesses and evidence of the sum usually charged and paid for such services, but should not be wholly controlled by the opinions of attorneys as to their value.” Goodwillie v. Millimann, 56 Ill. 523. The chancellor properly refused to allow Babcock’s claims for moneys advanced by him. The only evidence offered to sustain the same was that of Babcock himself, and it is too indefinite and vague upon which to base a finding. The proof should have gone to the separate items of the claim. We do not regard it sufficient to support a finding in his favor for any particular fixed sum.

We cannot say that the evidence in support of the allegations of the cross-bill was clearly insufficient to warrant the finding of the chancellor that the same were true. It tends to show that the notes and trust deed were given for the purpose of raising funds to liquidate the various liens against the real estate and not to secure the amount due Babcock for his legal services, and expenses, as claimed by appellant, but that the giving by Babcock of his note to Worthy, for $4,000, and assigning the trust deed as collateral security therefor, was in furtherance of an attempt to bring within the lien of the trust deed his claim for compensation, the amount of which the chancellor has held to be unwarranted by the evidence.

The decree of the Circuit Court was proper and is affirmed.

Affirmed.

Mb. Justice Philbrick took no part in the consideration and determination of the appeal.


author: Mr. Justice Baume

text:
    I. Toberman et al., Appellees, v. Toledo, St. Louis & Western Railroad Company, Appellant.
    1. Common cabbiebs—burden to establish assent to restrictions upon liability. The burden of proof is upon the carrier to show that the shipper assented to the restrictive provisions contained in the contract of shipment.
    2. Measure of damages—when cannot be questioned on appeal. If the measure of damages applied by the trial court was acquiesced in, in such court, by the complaining party, its correctness cannot be questioned on review.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Montgomery county; the Hon. A. M. Rose, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed December 7, 1910.
    J. M. Baker and C. E. Pope, for appellant; Charles A. Schmettau, of counsel.
    Hill & Bullington, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit by the plaintiffs to recover from the defendant the value of a carload of haled hay claimed to have been delivered to the defendant for shipment from Chapman, Illinois, to Jacksonville, Florida, which shipment never reached its destination and was not" accounted for to the plaintiffs. This suit was originally instituted before a justice of the peace, where the plaintiffs obtained a judgment for $186. Hpon appeal by the defendant the case was tried hv a jury in the Circuit Court of Montgomery county where the plaintiffs recovered a verdict and judgment for $200.

Many of the errors assigned and argued by the defendant do not affect the merits of the controversy and need not be considered and discussed.

It is not controverted that on May 17, 1907, the plaintiffs delivered to the defendant at Chapman, lilinois, for shipment to Jacksonville, Florida, 21,970 pounds of No. 1 timothy hay in bales, which hay was loaded in car No. 15,998 marked “L. & N. By. Co.,” and that said car was never delivered to the consignee at Jacksonville and the shipments were wholly lost to the plaintiffs. Upon the delivery of the hay to the defendant it issued to the plaintiffs its bill of lading therefor wherein Jacksonville, Florida, was named as the destination of the shipment, and the connecting carriers were designated as “I. C., N. C. & St. L., S. A. L.,” meaning Illinois Central; Nashville, Chattanooga & St. Louis and Seaboard Air Line Bailroads.

It is urged that the court improperly permitted the witness Marion Toberman to testify to the market value of the hay at Jacksonville because the only knowledge that the witness was shown to have of such market value was derived from correspondence with his broker. The testimony was incompetent and should have been excluded but its admission was harmless error because the witnesses Stringfellow and Saussy called on behalf of the plaintiffs testified to the like market value of the hay at Jacksonville from personal knowledge and there is no countervailing evidence in the record.

The insistence by the defendant that the market value of the hay at Jacksonville was immaterial was not urged in the court below and cannot be availed of for the first time in this court as a ground for reversal of the judgment.

In Wabash R. R. Co. v. Thomas, 222 Ill. 337, it was held that when a carrier receives freight to be transported marked to a particular place, he is prima facie bound to carry to and deliver at that place, and that by accepting freight so marked he impliedly agrees so to do and ought to be answerable for the loss. It was there further held that where a contract limiting the liability of a carrier is contained in a bill of lading constituting both a receipt and a contract, which contract was signed by the shipper, the burden is on the carrier to show that the shipper assented to the terms and conditions of the contract. In the case at bar the contract of shipment was not signed by the plaintiffs, but the restrictive provisions therein contained appeared upon the partly written and partly printed bill of lading which was delivered by the defendant to the plaintiffs. The rule announced in Wabash R. R. Co. v. Thomas, supra, imposing the'burden of proof upon the carrier to show that the shipper assented to the terms of the contract is supported by even better reason as applied to the case at bar, where the contract was not signed by the shipper.

The only objection we perceive to the instructions given at the instance of the plaintiffs is that they were abstract in form, but under the evidence in the record they could not have misled the jury prejudicially to the defendant. The instructions tendered by the defendant erroneously assume the assent of the plaintiffs to the restrictive provisions contained in the bill of lading and were properly refused.

Upon the theory, acquiesced in by defendant in the court below, as to the measure of damages applicable in the case the damages awarded by the jury are not excessive.

There is no error in the record prejudicial to defendant and the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Edward Rowden, Administrator, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    1. Negligence—duty of railroad company to person seeking to cross its tracks at a street crossing after having teen a trespasser upon its right of way. Whatever may he the status of a person upon the right of way of a railroad company, when such person reaches a street and there attempts to cross the track of the company upon the crossing provided for that purpose, the company owes to such person the same duty that it owes to any traveller upon such street at said crossing.
    2. Evidence—when erroneous admission ground for reversal. If evidence is offered for the purpose of establishing a basis for liability and being received and allowed to stand could not have the effect of leading the jury to believe that it formed a basis for liability, its admission and retention in a close case constitutes ground for reversal.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed December 7, 1910.
    Patton & Patton, for appellant; Silas H. Strawn, of counsel.
    Hamilton & Catron, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

The main track and two side tracks, one on each side of said main track, of the defendant railroad company run in a northerly and southerly direction through the city of Auburn, and cross among others, Madison, Monroe, Jackson and Van Burén streets at grade and at about right angles. Prom Van Burén street north to a point near the defendant’s depot the distance between the main track and the east side track was 21 feet 7 inches, and the ground between said tracks was smooth and level. During a portion of the evening of August 25, 1908, the plaintiff’s intestate, Chester W. Bowden, a boy of the age of about 14 years, and one Carl Landis, a boy of about the same age, had been riding their bicycles up and down the strip of ground between the main track and the east side track from Van Burén street to a point near the depot. During the time they were there the two boys with others were attracted to a “bunk car,” located on defendant’s right of way east of the east side track and immediately north of Van Burén street, by instrumental music performed by some laborers in the employ of the defendant. After remaining at said “bunk car” a short time the two boys remounted their bicycles and rode north on the strip of ground between the main track and the east side track, the deceased riding in advance of his companion, Landis. When the deceased reached Jackson street he turned west on said street, and while he was crossing defendant’s main track where it crossed said street he was struck by a fast north bound freight train and instantly killed. Upon the trial in the court below the case was submitted to a jury upon four counts of the declaration charging respectively negligence in operating the train at a high and dangerous rate of speed across .Jackson street; a breach of duty in exceeding the speed limit prescribed by the city ordinance; a breach of duty to maintain a bright and conspicuous light on the forward end of the locomotive as required by the city ordinance; and a failure to perform the statutory duty to ring a hell or blow a whistle for at least 80 rods before reaching the crossing. The trial resulted in a verdict and judgment against the defendant for $3,500, to reverse which judgment this appeal is prosecuted.

It is first urged that the evidence fails to tend to prove that the deceased was in the exercise of due care for his own safety at and before the time that he went on the track, and fails to tend to show any breach of any duty owed by the defendant to the deceased which proximately caused his death, and that the court therefore erred in refusing to give to the jury the peremptory instruction offered by the defendant. The insistence that the defendant owed no duty to the deceased when the latter was struck and killed at the street crossing is necessarily predicated upon the theory that as the deceased was a trespasser while riding on his bicycle between Van Burén and Jackson streets he must be held to have been a trespasser when he reached Jackson street, unless it appears from the evidence that he had previously formed an intention to cross defendant’s track on Jackson street when he reached said street. It is uncontroverted that the tracks of the defendant could not be crossed by one riding a bicycle except at the street crossing. The only fact in evidence bearing upon the intention of the deceased to cross the tracks of the defendant at the Jackson street crossing consists of his conduct in attempting to cross said tracks when he reached said streét crossing. Whatever may have been the status of the deceased prior to his reaching Jackson street, when he reached said street and there attempted to cross the track of the defendant upon the crossing established for that purpose the defendant owed to him the same duty that it owed to any traveler upon said street at said crossing. McGuire v. C. & E. I. R. R. Co., 120 Ill. App. Ill; Sample v. C. B. & Q. R. R. Co., 233 Ill. 564; Robards v. Wabash Ry. Co., 84 Ill. App. 477; C. C. C. & St. L. Ry. Co. v. Hibsman, 99 Ill. App. 405, and C. R. I. & P. R. R. Co. v. Eininger, 114 Ill. 79, relied upon by counsel for defendant are clearly distinguishable upon the facts from the case at bar. As bearing upon the question of negligence of the defendant and the due care of deceased the evidence introduced on behalf of the plaintiff tends to show that it was dark when the deceased approached the Jackson street crossing and was struck by defendant’s train; that the head light of defendant’s locomotive was burning very dimly; that the train was traveling at a speed of from 30 to 40 miles an hour; that as the train approacked said crossing the bell upon the locomotive was not ringing and the whistle was not sounding; that the deceased did not observe the approaching train and was not aware of its presence until he was upon the track; that Landis who was riding about 15 feet behind the deceased, when the latter reached Jackson street, was not aware of the approaching train until the deceased was upon the track immediately in front of it; that for his age the deceased was a boy of more than ordinary intelligence, capacity and experience. In this state of the record the giving of a peremptory instruction would have been clearly an infringement by the court upon the province of the jury.

The plaintiff testified that the space between the main track and the east side track was “very smooth and level as the people traveled back and forth on it.” He was then asked, “What made it smooth and level,” and replied, ‘ ‘ The people traveling back and forth on there, and in muddy times the "people drove back and forth through there with teams. ’ ’ Counsel for defendant objected to any evidence with regard to the user of the space between the tracks, whereupon counsel for plaintiff stated that he would show that such user was with the knowledge and consent of the defendant, as bearing upon the question of want of care upon the part of the deceased and as proper to be taken into consideration with all the surroundings, and further that he desired to prove the condition of said space between the tracks as a fact. Upon the objection interposed the trial court ruled as follows: “I am of the opinion that the manner in which that was used, the condition in which it existed, may go as a part of the environment, I will not attempt to give it any value, except I never try these cases without allowing the full environment to be developed.” To which ruling of the court counsel for defendant excepted. Thereafter in his closing argument to the jury counsel for the plaintiff stated in substance that the portion of the right of way on which the deceased was riding had habitually been used as a passage way with the consent of the defendant or at least without any objection to its being used as a passage way by the people. The objection of counsel for defendant to the language used in argument was sustained by the court, the court then remarking to the jury, as follows: “As the case has developed, it is not material whether the railroad company had consented or had not, and the court holds the same rule applies to a licensee as applies to a trespasser.” Counsel for plaintiff then stated: “I desire to have it noted that I have not said it would be a technical trespass. I have not stated he was a trespasser.”

It is urged on behalf of defendant that the admission of the evidence complained of coupled with the language of counsel for the plaintiff in his closing-argument to the jury operated to the prejudice of the defendant, notwithstanding the ruling- of the court upon the objection to such argument, in inducing the jury to believe and understand that by the user by .the public of the space in defendant’s right of way between its main track and its east side track the deceased acquired some right other than that accruing to a trespasser to use said space, or that some duty was thereby imposed upon the defendant in respect to the deceased when using said space, other than that which it owed to a trespasser. The evidence as to the manner the space between the tracks had been used was manifestly introduced upon the theory that the use of such space by persons traveling upon it created some right against the defendant in persons so using the same, or imposed some duty upon the defendant in respect to such persons which would not have existed but for such user, and as related to the facts in this case such evidence was improperly admitted. Wabash R. R. Co. v. Jones, 163 Ill. 167. True, an objection was sustained to that portion of the argument of counsel for plaintiff wherein he sought to sustain his theory under such evidence, but the evidence still remained in the record to be considered by the jury and as heretofore stated the only purpose for which it could have been considered was an improper one. Upon the record in this case considered as a whole, the right of the plaintiff to recover, is to say the least so doubtful that the error in the admission of the evidence referred to requires a reversal of the judgment and the remandment of the cause for another trial.

It is urged that some of the instructions given at the instance of the plaintiff erroneously limit the exercise of due care by the deceased to the time when he was actually crossing or attempting to cross the defendant’s track upon which he was struck and killed.

We are satisfied that upon another trial of the case the objection if any there be to the instructions in the respect stated will be obviated and we do not deem it necessary to now consider and determine the propriety of such instructions. What we have heretofore said fully justified the action of the trial court in refusing some of the instructions tendered on behalf of defendant, and the other refused instructions were properly refused because they were substantially repetitions of other instructions given in the case.

For the error above indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Archie Woods, Appellee, v. Toledo, St. Louis & Western Railroad Company, Appellant.
    1. Common carriers—burden to explain delay in transportation. If it be shown by the plaintiff that the delay of the carrier in transporting horses was unusual, the burden shifts and is cast upon the defendant to explain such delay and to show that it did not result from its negligence.
    2. Evidence—refreshing recollection. A witness may properly be permitted to refresh his recollection by reference to records contemporaneous with the fact.
    3. Evidence—when telegrams incompetent. Telegrams merely hearsay and self-serving in character are incompetent.
    4. Propositions of law—must not ignore essential elements. In an action against a carrier for damages occasioned by delay in transporting horses, held, that a proposition of law was properly refused because it ignored the duty of such carrier to inspect its locomotive.
    5. Propositions of law—when refusal of correct mil not reverse. A correct proposition of law may properly be refused if its contents are substantially contained in other propositions given.
    6. Propositions of law—province of court. A proposition of law which infringes upon the province of the court as a trier of the facts is properly refused.
    Trespass on the case. Appeal from the Circuit Court of Edgar county; the Hon. W. B. Scholfield, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed December 7, 1910.
    F. C. Van Sellar and C. E. Pope, for appellant; Charles A. Schmettau, of counsel.
    H. S. Tanner and J. E. Dyas, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit to recover damages alleged to have accrued to the plaintiff by the unreasonable delay of the defendant in transporting a shipment of 12 horses from Metcalf to East St. Louis. A trial of the cause by the court without a jury resulted in a findm tr and judgment against the defendant for $417.50, to reverse which judgment it prosecutes this appeal.

Prior to Monday, February 15, 1910, the plaintiff had ordered a stock car to be delivered at Metcalf for the purpose of carrying the horses to Bast St. Louis and at about 2 o’clock in the afternoon of that day the horses were loaded into said car with the knowledge of defendant’s agent and a bill of lading was then issued to the plaintiff therefor. The schedule time for the arrival at Metcalf of a local stock train, known as No. 27, was 3:20 o’clock in the afternoon and stock was usually carried by said train to Charleston and from thence to Bast St. Louis by a through freight train. The usual time for the carriage of stock by such route from Metcalf to East St. Louis was 13 hours. The car in which the horses were loaded, and in which they remained with the knowledge of defendant’s agent, did not leave Metcalf until 9:30 o’clock in the forenoon of Tuesday, February 16th, and arrived in Bast St. Louis at about 11 o’clock at night. The horses were unloaded at the stock yards the following morning and were considerably bruised and otherwise injured by their long confinement in the car.

The evidence for the plaintiff tends to show that when the horses were loaded into the car at Metcalf it was contemplated that the car would leave there at about 3 o ’clock and that the agent of the defendant so informed the agent of the plaintiff; that when the local freight train failed to arrive at Metcalf in the afternoon, or thereafter until the following morning, the agent of the defendant from time to time informed the agent of the plaintiff that the train would arrive at 5 o’clock, at 8 o’clock and at 12 o’clock the same afternoon and night and at 4 o’clock the following morning; that at about 5 o’clock in the morning of February 16th, a freight train known as No. 41, which could have carried the horses to Bast St. Louis passed through Metcalf without stopping; that the depreciation in the market value of the horses occasioned by their long confinement in the car and the unusual delay in their transportation was $417.50.

It must be conceded that the delay in transporting the horses from Metcalf to East St. Louis was unusual, and it follows that the burden was cast upon the defendant^ to explain such delay and to show that it did not result from its negligence. Shoot v. C. C. C. & St. L. R. R. Co., 145 Ill. App. 532.

Defendant sought to meet the burden cast upon it by attempting to show that train No. 45 which was scheduled to arrive at Metcalf at 8 o’clock in the evening was unable to be moved on account of bad weather conditions prevailing east of Frankfort, Indiana, and injury to telegraph -wires, and because of the breaking of one of the axles on the locomotive which was hauling said train, whereby said train lost its rights and its operation under the time schedule was necessarily annulled.

The testimony of the local agent of the defendant at Metcalf was in direct conflict with the evidence introduced on behalf of the plaintiff relative to the circumstances attending the loading of the horses into the car and the statements alleged to have been made to the agent of the plaintiff relative to the expected arrival of the train. We are not however justified in holding that the finding of the court upon these controverted issues was erroneous. The defendant introduced no evidence whatever to account for the failure of train No. 27 to be operated on February 15th, and there is no substantive evidence in the record to warrant a finding that the failure of train No. 45 to reach Metcalf was attributable, without the fault of the defendant, to bad weather conditions. In this latter regard the evidence consists merely of hearsay and the conclusion of the witnesses. The failure of defendant to carry the horses on train No. 41 is sought to be excused solely upon the ground that said train did not customarily stop at Metcalf. Defendant knew at the time train No. 41 passed through Metcalf at 5 o’clock in the morning of February 16th, that the horses had been in the car awaiting shipment since 2 o’clock in the afternoon of the preceding day, and whether or not the defendant was guilty of negligence in failing to carry the horses on that train was a question of fact for the court. The claim of the defendant that train No. 45 was unavoidably delayed in reaching Metcalf by reason of the breaking of an axle on the locomotive is not supported by the evidence. There is no evidence tending to show that the locomotive was properly inspected prior to the accident.

It is urged that the court improperly refused to permit the defendant to show that it was not unusual for horses to be bruised upon their arrival at the stock yards from Metcalf. If the inquiry had been limited to showing the usual conditions of horses as to being bruised upon their arrival at the stock yards from Metcalf in the ordinary course of shipment, and within the time usually required to carry horses that distance, we think the evidence would have been competent as bearing upon the question of damages, but no such limitations were incorporated in the inquiry and the proffered evidence was properly rejected. In Sinsabaugh v. C. C. C. & St. L. Ry. Co., 149 Ill. App. 430, in discussing a somewhat similar question we said: “It may be conceded, and we think there is some merit in the contention, that the depreciation in the market value of live stock caused by delay in transportation should be limited to the extent of the delay only, because any confinement of live stock in cars will probably result in some depreciation in its market value, for which depreciation the carrier should not be held responsible.”

There was no impropriety in permitting the witness Whitsen to testify after refreshing his recollection by reference to the auctioneer’s list of horse sales that he sold the horses in question upon a guarantee only of “wind and work.”

It is urged that the court improperly refused to permit the defendant to introduce in evidence certain telegrams sent by defendant’s local agent to its train dispatcher and by such train dispatcher to its local agent, relative to the movement of trains and the carriage of the horses. The telegrams were properly excluded as being mere hearsay and self-serving statements. Defendant cannot escape liability for the negligence of its servants even though such negligence was occasioned by the failure of said servants to comply with its directions.

The other errors assigned upon the rulings of the court in excluding certain evidence are not of sufficient importance to merit discussion.

Defendant offered no evidence in diminution of the amount of damages claimed by the plaintiff and the damages are not excessive.

The eighth proposition of law submitted by defendant was properly refused because it ignored the duty of the defendant to inspect its locomotive. The ninth and tenth propositions of law submitted by defendant and refused by the court were sufficiently covered by the third and fourth propositions of law held as the law applicable to the' case, and the eleventh and twelfth propositions of law refused by the court were sufficiently covered by the fifth and sixth propositions of law marked by the court as “held.” The thirteenth and fourteenth propositions submitted by defendant to be held by the court as the law of the case were properly refused because they, infringed upon the province of the court as a trier of the facts and were improperly submitted as propositions of law.

There is no reversible error in the record and the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Maud M. Pegram et al., Appellees, v. Mutual Protective League, Appellant.
    1. Fraternal benefit societies—when re-instatement obtained by fraud sustained. Notwithstanding a re-instatement may have been obtained by fraudulent representations, if such representations at the time of the re-instatement were known to the society to be false and the re-instatement none the less made, a waiver is established and the re-instatement will be sustained.
    2. Fraternal benefit societies—presumption as to amount of assessment. In an action to recover for death benefits, the amount which the beneficiary is entitled to recover is presumed to be the full amount of the certificate in the absence of evidence that an assessment would not realize such amount.
    3. Instructions—predicated upon evidence. Instructions are properly refused which are not supported by any evidence in the record.
    4. Evidence—propriety of leading questions. If a witness when called by counsel gives unexpected testimony it is proper to permit counsel to interrogate such witness by leading questions for the purpose of refreshing his recollection, if he appears forgetful, or for the purpose of probing or pricking his conscience and moving him to relent and speak the truth if he has wilfully erred.
    5. Trial—what not objection to remarles of court. An objection to a ruling made by the court is not an objection to the remarks made in making such ruling; in order to save for review the propriety of the language employed by the court an objection thereto must be specifically made.
    Assumpsit. Appeal from the Circuit Court of Greene county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed December 7, 1910.
    Frank A. Whiteside, for appellant.
    Rainey & Jones, for appellees.
   Mr. Justice Baume

delivered the opinion of the court.

On January 9,1900, the defendant, a fraternal benefit society, issued to Nathaniel H. Pegram as a member of Council No. 54 located at Carrollton, its benefit certificate, whereby it agreed upon his death provided he had, while a member, complied with its charter, constitution, laws, rules and regulations, to pay from its benefit fund to his wife, Nellie Jane Pegram, the amount of one assessment not exceeding the sum of $2,000". Nellie Jane Pegram, the beneficiary named in said certificate, died in 1904 or 1905, and the insured, Nathaniel H. Pegram, not having remarried, died on November 12, 1908, leaving the plaintiffs, his children and only heirs at law. The defendant having denied its liability upon said benefit certificate, the plaintiffs instituted this suit to recover the amount thereof, and upon a trial in the Circuit Court of Greene county were awarded a verdict for $2,075. Plaintiffs remitted $75 from said verdict and judgment was thereupon entered by the court against the defendant for $2,000, from which judgment it prosecutes this appeal.

The provisions of the constitution and by-laws of the defendant society relating to the payment of assessments, the suspension of members, and the re-instatement of members so suspended, are, as follows:

“Sec. 178. If a member fails to pay the assessments or dues on or before the 1st of the month following that in which they become due or payable * * * he shall stand suspended, and during such suspension his Benefit Certificate shall be null and void.
“See. 179. A member re-instating shall make application on form prescribed by the Supreme Board of Directors assuring good health at the time of making application.
‘ ‘ Sec. 180. When a member has been suspended for less than 60 days for non-payment of assessments, dues or fines he may be re-instated if in good health and not engaged in any of the prohibited occupations, by payment of all arrearages, including current assessments and dues. ’ ’

Prior to his suspension on October 1, 1908, for nonpayment of the assessment then due, the deceased had paid all assessments called by the defendant society except the assessment due on September 1,1908, which had been paid for by Samuel Graves, the local secretary of the defendant society at Carrollton. At or about the time when the deceased received notice of his suspension he was taken sick, and at the solicitation of some members of his family, his brother, Baker Pegram, went to his home for the purpose of procuring his re-instatement. The evidence relating to the circumstances under which an application for re-in-statement was procured and executed by the deceased and returned to Graves, whereby it is claimed that the deceased became re-instated in the defendant society, is conflicting. Baker Pegram, the brother of the deceased, testified that he procured a check signed by his brother wherein the amount was left blank and went to Carrollton for the purpose of interviewing Graves, the local secretary, and ascertaining what was necessary to be done to procure his brother’s re-in-statement ; that when he saw Graves he informed him that the deceased was sick and desired to be re-instated; that Graves told him it would be necessary for the deceased to sigh a re-instatement blank and have his signature thereto witnessed, that he (Graves) did not have such blank with him but could- procure one at his office; that Graves got into the buggy with him and they drove around town endeavoring to find one Spiker, who Graves said had the keys to the secretary’s office, or to the lodge room; that they were unsuccessful in their effort to find Spiker, and Graves told him he would send a re-instatement blank to the deceased by mail; that he gave Graves the check which he had procured from the deceased in payment of the assessment due October 1st, and also of the assessment due September ’ 1st which had been advanced by Graves; that the re-instatement blank was received by the deceased from Graves on the following day and was then signed by the deceased and witnessed by John Cordes.

Nathaniel H. Pegram, a son of the deceased, testified that after the re-instatement blank was signed by his father he took the same to Graves who then asked him how his father was, to which inquiry he replied that his father was about the same as he was the day before. He further testified that upon a subsequent occasion he paid to Graves the assessment due November 1st and then told Graves in answer to the latter’s inquiry as to how the deceased was, that his father was sick and worse. The deceased died on November 12th, following, without having fully recovered from his illness.

The re-instatement blank which was signed by the deceased and received and accepted by Graves, and by him immediately forwarded to the head office of the defendant society, where the deceased was formally entered as re-instated, is as follows:

“I, Nathaniel H. Pegram, a member of Carrollton Council, No. 54 located at Carrollton, in the State of Illinois, and holding Benefit Certificate No. 9607, for $2000.00 having been suspended on the first day of October, 1908, for the non-payment of Monthly Payment No. 10 (or non-payment of Council Dues in advance for quarterly term ending.......190 . . .) do hereby on my honor as a member of the Mutual Protective League, certify that I am in good physical and mental health; that I have been since the date of my suspension, and am now free from any sickness whatever; and agree that if this statement is found to be a misrepresentation of my present physical condition, my Benefit Certificate shall become null and void, and of no binding force whatever. I hereby apply for re-instatement to full membership.
Witness my hand this 19 day of October, 1908.
Nathaniel H. Pegram.
(Applicant sign here)
John Cordes
(Witness sign here) ’ ’

Samuel Graves, the local secretary of the defendant society, when called as a witness corroborated the testimony of the witnesses Baker and Nathaniel H. Pegram relative to the procuring of the re-instate-me'nt blank and the payment of the assessments, but denied that he had any knowledge of the illness of the deceased, or that he was informed by either of said parties that the deceased was sick, or otherwise than in good health, at the time in question.

A careful consideration of the evidence as it appears in the record discloses facts and circumstances, a detailed discussion of which would unduly extend this opinion, tending to support the contention of the plaintiffs that Graves was fully informed of the sickness of the deceased when he suggested the necessity of having the deceased sign an application for reinstatement and received and accepted such application, together with the unpaid assessments.

The defendant does hot controvert the proposition well established in this state that the duties imposed upon Graves by its constitution and by-laws as the secretary of the local or subordinate council necessarily constituted him the agent of the supreme council of the defendant benefit society, but it is insisted that as the deceased was sick at the time of his application for re-instatement he could not become re-instated as a member of the defendant society so as to validate his certificate. The question involved is wholly one of waiver, and we perceive no reason why waiver may not be as operative to prevent a forfeiture of the reinstatement of a suspended member of a fraternal benefit society, where such re-instatement has been procured by representations known to such society to be false, as it is to prevent the forfeiture of an original certificate, where such certificate has been procured by representations known by the society to be false, when the same was issued.

In Mutual Protective League v. Langsdorf, 126 Ill. App. 572, referred to by counsel for defendant as being analogous to the case under consideration, it was expressly held that there was no competent evidence in the record tending to show a waiver by the society of the ground of forfeiture relied upon by it. The absence of this element in the case cited completely destroys the supposed analogy between it, and the case at bar.

The contention of defendant that the allegation in the declaration that the plaintiffs were entitled to recover the sum of $2,000 under the certificate in question, together with the absence of proof that that amount would be realized by one assessment, is insufficient to warrant a verdict and judgment against it for $2,000, may be disposed of on the authority of Covenant Mut. Life Ass’n. v. Kentner, 188 Ill. 431, where it was held that the damages are presumed to be the full amount of the certificate in the absence of evidence that they are less, and that it devolves upon the insurer to show that an assessment would not have realized the amount of the claim.

The 1st, 2nd, 3rd and 4th instructions given at the instance of the plaintiffs informed the jury in somewhat varying phraseology that although they believed from the evidence that the deceased made false statements or misrepresentations as to his health in his application for re-instatement, yet if they also believed from the evidence that at the time such statements were so made to or received by the local secretary Graves, said Graves knew such statements were not true but false, and that he had knowledge of the true facts as to the condition of health of the deceased, then in that case such statements did not constitute fraudulent representations of which the defendant could avail itself as a defense. The instructions state the law with substantial accuracy. That the defendant understood such to be the law applicable to the case is evident from an examination of the 1st, 4th and 5th instructions given at its instance, in each of which proof of the like facts was recognized as constituting a waiver by the defendant.

The 1st, 3rd, 4th, 5th and 6th instructions tendered by defendant and refused by the court would have advised the jury that the facts relied upon by the-plaintiffs as constituting a waiver although established by a preponderance of the evidence were insufficient to operate as a waiver of the forfeiture claimed by the defendant, and were therefore properly refused. The 2nd instruction offered by defendant and refused by the court, which assumed that Baker Pegram acted as the agent of the defendant in procuring the reinstatement of the deceased, was properly refused as being wholly unsupported by the evidence.

Upon the trial Samuel Graves, the secretary of the local council, was called as a witness by the plaintiffs and examined in chief as to his duties as such secretary, the payment of the assessments which had accrued upon the certificate in question and some other matters not now necessary to be noticed. Upon his cross examination by counsel for the defendant Graves stated in detail the manner in which the deceased’s application for re-instatement had been procured and came into his possession, and denied specifically that he then had any knowledge that the deceased was sick, and that he had been so informed by Baker and Nathaniel Pegram. Upon his re-direct examination by counsel for plaintiffs he was fished the following question: “I will ask you to state whether or not you told me that Mr. Baker Pegram at the time he paid you the money for these dues, told you that Nathaniel H. Pegram was sick?” Upon objection by counsel for defendant as to the form and substance of the question the court remarked: “The objection will be sustained unless counsel for plaintiffs will state to the court that he is surprised by the testimony of the witness, that it is not in accordance with what he expected it to be, and will move the court for leave to ask the witness leading questions to prod his recollection and prick his conscience.” Counsel for plaintiffs then stated: “I now make the statement that the testimony of this witness is a surprise to me, and that it is not in accordance with what I expected it to he upon the question of his knowledge of the condition of Nathaniel H. Pegram’s health at the time of his re-instatement and the payment of the arrears which were made at that time, and I move the court for leave to ask this witness leading questions for the purpose of prodding his recollection and pricking his conscience.” The court then said: “Leave is granted, he may now answer the question.” The exception noted in the record is as follows: “Defendant excepts.” The answer of the witness to the question was, “No sir.” Thereafter the witness was further fully interrogated by counsel for plaintiffs concerning certain statements claimed to have been made by the witness for the purpose of probing his recollection with reference thereto and as to certain incidents relating to the questions involved, to which further examination of the witness no objection was interposed until the subject had been exhausted. It is insisted on behalf of defendant that the language employed by the trial judge in ruling upon the objection interposed was equivalent to a suggestion or intimation by him that the recollection of the witness needed prodding and his conscience required pricking in order that he might' testify truthfully, and that such language necessarily operated to discredit the witness with the jury and was prejudicial to defendant. The rule in this state is that when a witness unexpectedly gives testimony against the party calling him which is at variance with prior statements made by the witness, such party has the right to interrogate such witness for the purpose of refreshing his recollection if he appears forgetful, or to probe or prick his conscience and move him to relent and speak the truth if he is willfully erring. Chicago City Ry. Co. v. Gregory, 221 Ill. 591; People v. Lukoszus, 242 Ill. 101. The statement of counsel for plaintiffs that he was surprised by the testimony of the witness justified the court in permitting a further examination of the witness, under the rule as thus stated and as announced by the trial court. The objection by counsel for defendant was not directed to the language employed by the trial court in announcing the rule, but merely to the ruling of the court permitting counsel for plaintiffs to pursue the line of examination authorized by the rule as stated.

If defendant desired to preserve for review the propriety of the language employed by the court, it should have objected and excepted thereto at the time. Mulliner v. Bronson, 114 Ill. 510; Lanquist v. City of Chicago, 200 Ill. 69. Furthermore, the insistence that the language employed by the court was prejudicial to defendant is evidently an afterthought on the part of counsel, because the point is not made in either the motion for a new trial in the court below or in the assignment of errors in this court.

There is no reversible error in the record and the judgment of the Circuit Court is affirmed.'

Affirmed.