text:
    Charles M. Gale et al., Appellees, v. F. A. Carter et al. (Selma L. Kohn, Appellant).
    Gen. No. 5289.
    1. Foreclosure—who necessary parties. In a bill to foreclose a mortgage all persons interested should be made parties. A tenant in possession paying rent is a necessary party.
    2. Fobeclosube—against whom writ of assistance may issue. A writ of assistance ancillary to a decree of foreclosure can only issue against the defendants in the bill and those claiming under them after the suit was commenced.
    3. Fobeclosube—what does not cure decree erroneous because of insufficient parties having been made to the bill. If a decree in foreclosure is erroneous because a tenant in possession paying rent was not made a party defendant thereto, a disclaimer of interest by such tenant filed in the Appellate Court will not cure such decree and prevent a reversal.
    4. Fobeclosube—when allowance of solicitor’s fees erroneous. If the solicitors appearing for a complainant corporation are likewise officers and directors thereof and no provision has been made by resolution of such corporation for the payment for the services of such solicitors, an allowance of fees made to such complainant on account of the services rendered by such solicitors is erroneous.
    5. Foreclosure—when appointment of receiver not erroneous. The appointment of a receiver in a foreclosure proceeding is not erroneous where it appears that the mortgagor was out of the jurisdiction of the court; that the principal with interest thereon had matured; that the buildings covered by the mortgage had not been kept insured, nor the taxes paid, and the security was scant.
    Foreclosure. Appeal from the Circuit Court of Ogle county; the Hon. Richard S. Fabrand, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed in part and remanded.
    Opinion filed March 11, 1910.
    Stricken from rehearing docket April 13, 1910.
    Norman P. Willard and Alfred E. Hulbert, for appellant.
    J. C. Seyster and S. W. Crowell, for appellees.
   Mr. Justice Willis

delivered the opinion of the court.

On January 28, 1907, the Oregon State Bank loaned F. A. Carter $5,000 and received two notes payable two years thereafter with interest at seven per cent per annum, as evidence thereof. The notes were secured by a trust deed on real estate in Phelps’ Addition of Oregon, executed by Carter to Charles M. Gale, cashier of the bank, as trustee. The trust deed provided that the grantor was to pay the principal sum with interest, taxes and assessments and keep the buildings insured, and for a reasonable solicitor’s fee in the event of a foreclosure. Thereafter, Carter conveyed the real estate to one Boyer, trustee, and Boyer conveyed it to Miller, and Miller and wife conveyed it to Selma L. Kohn. A subsequent mortgage of $1,000 on the premises was given to one M. Louise Perry. On March 28, 1909, the principal sum of the loan with interest from January 28, 1907, and certain taxes and insurance, being due and unpaid, Charles M. Gale and the Oregon State Savings Bank, by J. C. Seyster and S. W. Crowell, solicitors, filed a bill in the Circuit Court of Ogle county to foreclose the trust deed. The bill made Carter, Boyer, trustee, Miller, Kohn and Perry defendants, and prayed for an accounting, a foreclosure of the trust deed and solicitor’s fees, the appointment of a receiver and general relief. The bill was taken as confessed as to all the defendants except Selma L. Kohn. She answered denying most of the allegations of the bill, and denying complainant’s right to a decree and their right to an allowance for solicitor’s fees, because the solicitors were officers and directors of the bank, and alleging that one B. S. Marshall was tenant in possession of the real estate, and that he was not a party to the proceedings. A replication was filed to the answer. There was a hearing and the court found that there was due the Oregon State Savings Bank $5,317.52, and ordered that in default of payment thereof within thirty days the trust deed be foreclosed and the bank be allowed $200 for its reasonable solicitor’s fees, and appointed a receiver to take charge of the property. Selma L. Kohn prosecutes this appeal.

The evidence shows that Marshall was a tenant in possession paying rent. This invested him with an interest in the mortgaged premises and made him a necessary party to the bill, as the rule is uniform that on a bill to foreclose a mortgage all persons interested should be made parties. He had an interest in the premises which the decree would not cut off unless he was a party. Upon a sale of the mortgaged premises, the purchaser, in case no redemption was made, would be entitled to a writ of possession. But a writ of possession could only issue against the defendants in the bill, and those claiming under them, after the suit was commenced, hence the necessity of making all persons in possession of the premises parties to the bill, in order that they might be concluded by the decree, and the title divested, whatever it might be. Richardson v. Hadsall, 106 Ill. 476. Moreover, the failure to make the tenant a party might affect the selling price of the property. A party desiring to bid at the sale would likely be deterred from bidding if there were a party in possession not bound by the decree, or if such party did bid at all, it would likely be in a less sum than he otherwise might. As appellant was entitled to any surplus after the satisfaction of the decree, it was her right and for her interest to have the property sold under the best possible conditions. Notwithstanding appellees’ claim that they themselves put the tenant in possession, when the answer disclosed that he was a tenant, they should have amended their bill and made him a party, and when the evidence disclosed to the court that the tenant was not made a party, it should have taken notice of such omission and ordered the bill so amended that he be made a party. Herrington v. Hubbard, 1 Scam. 569; Knoff v. Chicago Real Estate Board, 173 Ill. 196. It is the duty of the complainant to see that he has before the court all necessary parties ; and where he takes a decree without making the necessary parties defendant, where disclosed to him, the decree will be reversed. Hopkins v. Roseclare Lead Co., 72 Ill. 373; Brown v. Riggin, 94 Ill. 560.

After the cause had reached this court appellees filed a disclaimer signed by the tenant, but from the view we take of the case the rights of the parties should be determined as disclosed by the record of the trial. v

It is admitted that the solicitors who filed the bill for appellees to foreclose the trust deed, were at the time officers and directors of appellee bank, although what offices they held is not disclosed, and appellant contends that the allowance to appellees for solicitors’ fees when the services were rendered by complainant’s officers and directors, is reversible error. While no authority dirfectly in point is cited, our attention is directed to Gray v. Robertson, 174 Ill. 242, where it was held that a trustee should not charge and receive compensation as a solicitor in a cause in which he appeared as a party, though in his capacity as trustee; and in the case of Cheney v. Ricks, 168 Ill. 533, where it was held that a party to a partition proceeding, who was an attorney at law and who prepared the bill in the cause, could not become his own client and be allowed compensation. That case cited with approval cases that held that an attorney who was a mortgagee could not recover fees for professional services which he rendered in a proceeding to foreclose a mortgage, though a stipulation therein provided for the allowance of solicitor’s fees. In Willard v. Bassett, 27 Ill. 37, the court said that an attorney who is an administrator is not entitled to an allowance against the estate for professional services he may have rendered it. If he performs such services they will be regarded as a gratuity. On the strength of these decisions it is urged that the acts of the solicitors in foreclosing the trust deed were the acts of the officers and directors of the bank, and must be "presumed to be gratuitous, especially as no specific contract for solicitor’s fees was shown. Directors or officers of a corporation are not entitled to compensation from it unless a resolution or by-law has previously been made providing therefor. There can be no implied contract for such compensation to directors and officers of a corporation. In the absence of a resolution or by-law no recovery could be had by the solicitors against the corporation for their services.

Appellees argue that neither of the solicitors is a party to the suit and that the directors, in rendering legal services, were not in the performance of their usual duties as directors, apparently ignoring the relation which directors bear to a corporation. Pomeroy, in his Equity Jurisprudence, paragraphs 1088, 1090, says that directors are quasi trustees for the corporation, and that the equitable obligations resting upon and the equitable remedies given against corporation directors as well as executors and administrators are analogous to those resting upon and given against actual trustees. They result directly from the theory of trusts. In Gray v. Robertson, supra, it was said: “At the common law the trustee could not demand or be awarded compensation for his services in connection with the trust, in the absence of an express contract entitling him thereto. This rule of the common law has been adopted by repeated decisions of this court.” Citing "Willard v. Bassett, supra; Cheeney v. Lafayette, Bloomington & Mississippi Railway Co., 68 Ill. 570; Hough v. Harvey, 71 id. 72; Huggins v. Rider, 77 id. 360; Cook v. Gilmore, 133 id. 139; Buckingham v. Morrison, 136 id. 437. The court said in Hough v. Harvey, 71 Ill. 72. “A trustee can make no profit out of his office; and the reason on which this principle rests is, that a trustee shall be placed in no position where his interest may be opposed to his duty. Hence the rule, that a trustee can have no allowance or compensation, according to the doctrine of equity, for his time and trouble in the execution of a trust, and this rule applies not only to trustees, strictly so-called, but also to all who hold a fiduciary relation, as, executors and administrators, mortgagees, receivers, guardians, and officers, directors and trustees of corporations. Perry on Trusts, sec. 904, and cases in notes. ‘If trustees,’ says the same author, ‘render services to the trust estate in their professional characters as solicitors, factors, brokers, bankers, or in any other capacity, they can receive no compensation or commission for such services.’ Id. sec. 904.”

Under these authorities we hold that the allowance to appellee bank of $200 solicitors’ fees was error.

Appellant argues that the appointment of the receiver is not included in the assignment of errors. “Every error must be specifically pointed out in the assignment of errors (Swift & Co. v. Fue, 167 Ill. 443), so clearly that from the showing error is manifest (Gibler v. City of Mattoon, 167 Ill. 18), and an error not assigned is not open to review. Gilbert v. Maggord, 1 Scammon 471; Jackson v. Warren, 32 Ill. 331; Thayer v. Peck, 93 id. 357; Diversey v. Johnson, id. 547; Page v. People, 99 id. 418.” Berry v. City of Chicago, 192 Ill. 154. Although we are not called upon to consider this question, we find from the record that the security was scant, that the mortgagor was out of the jurisdiction of the court; that the principal with interest thereon has been due since January 28, 1909; and that the buildings had not been kept insured nor had the taxes been paid. Therefore the appointment of the receiver was not error, though made at a time earlier than provided for by the trust deed.

The decree will therefore be reversed except so much thereof as relates to the appointment of a receiver, and the cause will be remanded with leave to the complainants to make the party or parties in possession, party or parties defendant or defendants to the bill if they shall be so advised. If the bill is not amended within a reasonable time it should be dismissed without prejudice for want of proper parties.

The decree is reversed in part and the cause, is remanded with directions.

Reversed in part and remanded.


source: Caselaw Access Project

author: Me. Justice Willis

license: Public Domain

text:
    Charles Hohnadel, Appellee, v. John J. Ellsworth et al., Appellants.
    Gen. No. 5292.
    1. Paetnebship—when dissolution does not affect joint liability. The dissolution of a partnership does not affect the joint liability of the partners to those who have dealt with the partnership and have had no knowledge of its dissolution.
    2. Paetnebship—when admission competent; when not. Where an action is pending against two or more partners and one or more of the defendants puts the fact of partnership in issue by a proper plea, the admissions, statements or declarations of his co-defendant made in his absence in reference to the existence of the partnership are not, in the absence of other evidence tending to establish the partnership, admissible upon the issue; but where sufficient evidence has been given to raise a fair presumption that two or more persons are partners then the acts and declarations of each are admissible as evidence against the other for the purpose of strengthening the prima facie case already established.
    3. Evidence—when admission of erroneous will not reverse. The admission of incompetent evidence will not reverse if no harm has. resulted.
    Assumpsit. Appeal from the County Court of Ogle county; the Hon. Fbank E. Reed, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Pattison & Shaw and William P. -Fearer, for appellant.
    Franc Bacon and O. M. Grove, for appellee.
   Me. Justice Willis

delivered the opinion of the court.

This was a suit in assumpsit brought by Charles Hohnadel, appellee, against John J. Ellsworth, Harry McNair and John E. Smith to recover the price of a horse bought from appellee by Smith for which he gave his personal check, which later was dishonored. The declaration contained the common counts only. Appellants all joined in a plea of non assumpsit, and Ellsworth and McNair interposed a verified plea of non-joint liability. Upon trial, appellee obtained a verdict and judgment for $152.50, the purchase price of the horse, and Ellsworth and McNair prosecute this appeal.

There is no controversy over the amount of the judgment or Smith’s liability. The contested question is, were Smith, Ellsworth and McNair jointly liable in the purchase of the horse. It is conceded that in the year 1908 they were in partnership in buying and selling horses. Under their arrangement, Smith bought horses in the country, gave his personal check therefor, and then drew a draft on Ellsworth and McNair for the amount of his purchases and deposited that draft in the bank against which he had drawn the checks, and Ellsworth and McNair honored the drafts. The horses were shipped to Ellsworth and McNair in Chicago, sold by them, and the net profits divided, Smith receiving one-half and Ellsworth and McNair one-half and suffering all the losses, if any. About the 1st of January, 1909, Ellsworth and McNair notified Smith that they would cease treating him as their partner in such transactions. At times thereafter, Smith bought horses and shipped them to Ellsworth and McNair, who sold them on a commission. Appellee testified that the last of March, 1909, he saw Smith and Ellsworth at a sale at Chadwick examining, pricing and buying horses together; and over appellant’s objection, testified that he believed from what he there saw that they were in partnership. The cashier of a hank at Chadwick testified that he clerked at the Chadwick sale; that Ellsworth bought some horses there and Mr. Smith paid for them with his personal check; that he drew a sight draft on Ellsworth and McNair for $3,500; that the horses purchased came to about $1,200. The difference in the draft and the price of the horses bought at the sale was checked out by Smith, and used by him in paying for other horses. Under Smith’s instructions the bank was to pay for the horses that Smith bought outside of the sale as the checks came in. On May 20, 1909, Smith bought appellee’s horse, and others about that time, and paid for them with Ms personal checks, and drew a draft on Ellsworth and McNair for the amount of such purchases, wMch they refused to honor although the horses were shipped to them and they sold them and received the proceeds. Appellee received the money on Smith’s check from the bank, and after the draft was dishonored, refunded it. Smith testified that they were partners in the transaction; and on cross-examination, Ellsworth testified to three partnership transactions since the first of the year 1909; one on the 25th or 26th of March at the Chadwick sale, one about two weeks later and another on the 9th of May. Appellee testified that Smith told him when he bought his horse that he was buying for Ellsworth and McNair, and the casMer above referred to testified that Ellsworth said to him that there had been a partnership agreement between the parties wMch had been called off at one time and entered into again, but that at the time Smith bought appellee^ horse there was no such agreement, claiming that the partnership had been terminated at the first of the year 1909; and said that there had been a difference in their accounts of several hundred dollars and that it was time to quit; that there had been a partnership agreement at times since the first of the year and at times there had been no such agreement; that there was a loss of $300 on the load of horses in question; and in reply to an inquiry of the cashier if that were not quite an unusual loss, said that the horses got into Chicago on Sunday, and by reason of being shipped were gaunt and drawn, and that they (appellants) hurried them into market on Monday because they didn’t know but that some of the farmers might come in to replevy them. If they were only selling the horses on commission as claimed by appellants, it would have made little difference to them whether the farmers replevied them or not, but if they bought the horses and had determined to repudiate the partnership and sell the horses and recoup what Smith owed them on other transactions, then their conduct is explicable.

It is admitted by appellants that a partnership had existed between the parties, and claimed that it was dissolved about the first of the year 1909, but it is not claimed that appellee or the public had any notice of the termination of the relations. It is admitted that there were partnership transactions subsequent thereto. We are of the opinion that the evidence clearly supports the finding of the jury that appellants were jointly liable with Smith for the price of the horse.

Appellants contend that it was error to permit appellee to testify, that from what he saw at the Chadwick sale, he believed that a partnership existed between the parties. As this belief was borne out by Ellsworth’s testimony that the transaction at the Chadwick sale was a partnership deal, we consider that the error was but technical and not harmful.

It is urged that the admission over appellants’ objection of Smith’s testimony that he and appellants were partners, and appellee’s statement that Smith told him that he was buying for Ellsworth and McNair, was error. Where, as here, an action is pending against two or more partners and one or more of the defendants puts the fact of partnership in issue by a proper plea, the admissions, statements or declarations of his co-defendant, made in his absence, in reference to the existence of the partnership are not in the absence of other evidence tending to establish a partnership admissible upon the issue. Hahn v. St. Clair Savings & Ins. Co., 50 Ill. 456; Conlan v. Mead, 172 Ill. 13; Daugherty v. Heckard, 189 Ill. 239. But where sufficient evidence has been given to raise a fair presumption that two or more persons are partners, then the acts and declarations of each are admissible as evidence against the others for the purpose of strengthening the prima facie case already established. 1 Greenleaf on Evidence, 177; Conlan v. Mead, supra. Aside from the evidence of Smith that they were partners, and Smith’s statement to appellee that he was buying for Ellsworth and McNair, there was evidence abundantly tending to establish the existence, prima facie, of the partnership, and the admission of such evidence before a prima facie case was established did not amount to reversible error. Daugherty v. Heckard, supra.

We have carefully examined the instructions and conclude that as a whole they fairly presented the law of the case to the jury, and that appellants’ criticism of appellee’s fifth instruction is not warranted.

Finding no reversible error in the record, the judgment is affirmed.

Affirmed.


author: Mr. Justice Willis

text:
    Amanda Kidder, Appellee, v. The Supreme Assembly of the American Stars of Equity, Appellant.
    Gen. No. 5298.
    1. Fraternal benefit societies—when charged with knowledge of member’s physical condition prior to admission to membership. If the officers of a subordinate lodge had knowledge of the physical condition of an applicant for membership, the supreme lodge of such society is charged with a like knowledge.
    2. Fraternal benefit societies—when estoppel precludes defense. The retention of money paid' as assessments and the failure to cancel the certificate of membership, all with knowledge of the physical condition of the member, indicate such a ratification and confirmation of the certificate as to estop the society from asserting the defenses of breach of warranty or false representations.
    3. Fraternal benefit societies—how ansioers in application construed. Courts of this state have held that if it is doubtful whether statements made by the applicant for insurance are to be regarded as warranties or as representations, they will be deemed representations, warranties not being favored, since they must be literally fulfilled.
    4. Fraternal Benefit societies—when answers in application representations and not warranties. The statement “I hereby warrant the truth of all answers given in the above questions,” is not a warranty of the absolute truth of such answers when construed in connection with the statement that the answers are “true to the best of my knowledge and belief.”
    Assumpsit. Appeal from the Circuit Court of Lee county; the Hon. R. S. Fabrand, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    William N. Cronkrite, Henry S. Dixon and George C. Dixon, for appellant.
    Brooks & Brooks, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Fred J. Kidder was examined by Dr. J. G. Woker for membership in the Supreme Assembly of the American Stars of Equity, a fraternal beneficiary corp oration organized under the laws of Illinois, and was admitted to the society on his report, and a certificate of insurance for $1,000 was issued to him April 26, 1904, wherein his mother, Amanda Kidder, was named as the beneficiary. The application signed by Kidder, stated, among other things, that he had never had paralysis, and contained the following:

“I further agree that, the answers made by me to the questions propounded by the medical examiner and also answers made to all other questions herein appearing, are each and every one of them true, to the best of my knowledge and belief; and I agree that any concealment of facts, or any untrue or fraudulent statement made by me, shall forfeit my rights to all the benefits of the order and to membership therein.

<£I hereby warrant the truth of all the answers given to the above questions.”

Kidder died from cerebro-spinal meningitis on September 17, 1907. Proofs of death were furnished the society and an offer made to deliver up the certificate. The society refused to pay the insurance, whereupon Amanda Kidder brought suit in assumpsit in the Circuit Court of Lee county to recover the amount of the certificate, and obtained a verdict and a judgment for $716, from which the society prosecutes this appeal.

It is admitted that Dr. Woker was appellant’s authorized medical examiner and it is not denied that the certificate was issued to Kidder on a statement signed by Dr. Woker that he had examined Kidder and considered him a first-class risk, but it is urged that Kidder’s answers were warranties, and as they were false, the certificate is vitiated; that Kidder had paralysis in 1899 and that he and Dr. Woker conspired to obtain the certificate.

Dr. Woker testified that he attended Kidder professionally in 1899, and, at that time, he had temporary reflex paralysis caused by diseases of the penis and rectum from which he was then suffering; that he was soon cured of these diseases by an operation, whereupon in about two weeks the reflex paralysis disappeared, and he got as well as he was originally; that it was not real paralysis. There was proof that after Kidder obtained the certificate he had the appearance of a person who had been paralyzed, walked with a limp and talked out of the side of his mouth. Dr. Woker testified that he treated Kidder for a sprained ankle in connection with his other troubles; that he never got entirely over it, and that he limped, in his opinion, because of the ankle. From this conflict in the testimony, it was a question of fact for the jury, whether or not, when Kidder signed the application, he had had paralysis within the meaning of the term in the application.

The society issued the certificate with knowledge of all the facts relative to Kidder’s sickness in 1899, known to Dr. Woker, its examining physician. If Kidder had paralysis in 1899 and Dr. Woker knew of it, it was known to appellant, and it received him into membership and issued the certificate with full knowledge of it. It is well settled that in a fraternal benefit association the officers of a subordinate lodge are the agents of the supreme lodge. Court of Honor v. Dinger, 221 Ill. 176; Jones v. Supreme Lodge Knights of Honor, 140 Ill. App. 227. “Notice to the agent at the time of the application for the insurance, of facts material to the risk is notice to the insurer, and will prevent it from insisting upon a forfeiture for causes within the knowledge of the agent.” Phenix Ins. Co. v. Hart, 149 Ill. 513; Home Ins. Co. v. Mendenhall, 164 Ill. 458; Provident Life Society v. Cannon, 201 Ill. 260. The evidence further shows that appellant received assessments paid by Kidder on the certificate for nearly two years and a half and retained them, though it now claims the certificate was void from the beginning. It would be unjust to hold that having full knowledge of the facts, appellant could continue for two years and a half to recognize Kidder as a member and receive assessments from him, and then after his death insist that he was never a member of the society. The retention of the money paid as assessments and the failure to cancel the certificate indicates such a ratification and confirmation of the certificate as to estop the society from asserting the defense sought to be here set up. Coverdale v. Royal Arcanum, 193 Ill. 91.

Bespecting appellant’s contention that the answers in the application were warranties, the courts of this state have held that if it is doubtful whether statements made by the applicant for insurance are to be regarded as warranties or as representations, they will be deemed representations, warranties not being favored, since they must be literally fulfilled. Court of Honor v. Clark, 125 Ill. App. 490. In the case of Continental Life Insurance Company v. Rogers, 119 Ill. 474, the answers, statements and declarations in the application for insurance were warranted by the insured to be true in all respects, and the further statement was made that if the policy was obtained through fraud, misrepresentation, or concealment, it would be null and void. The court construed the two parts of the clause and said that both elements were to be considered in forming a basis of the decision as to whether the statements made a warranty or representation merely, and further said that the only way to give the provision of the policy relating to fraud, concealment and misrepresentation effect, was by treating the answers in the policy as representations and not warranties. The same doctrine is announced in Globe Life Insurance Association v. Wagner, 188 Ill. 133, and Connecticut Mutual Life Insurance Company v. Young, 77 Ill. App. 440; and in Berner v. Brotherhood of American Yeomen, ante, p. 27. The statement, “I hereby warrant the truth of all answers given in the above questions” in Kidder’s application, in our opinion, cannot be held as a warranty'of the absolute truth' of his statements, when, construed with the statement that the answers are “true to the best of my knowledge and belief.” The two statements read together constitute a representation merely. As the statement by Ividder that he had never had paralysis was a representation, it was necessary for appellant to prove, not only that Kidder had had paralysis before making the application, but also that Kidder knew that fact when he made the application, and that the fact that he did have paralysis was material to the risk. Provident Savings Life Insurance Society v. Cannon, 103 Ill. App. 534. There is no proof in this record that Kidder knew that he had had even reflex paralysis prior to making the application, nor that his having had paralysis was material to the risk.

What the supreme medical examiner would or would not have done under certain conditions of what consulting physicians may have said to Dr. Woker in regard to Kidder’s condition at the time of his illness in 1899, was immaterial, and there was no error in its exclusion. • •

To havé rendered appellant’s refused instructions proper, the evidence must have shown knowledge on the part of Kidder that he had paralysis and that he was actuated by a fraudulent purpose in procuring the certificate, and as there was no evidence of either, they were properly refused.

Substantial justice has been done in this cause by the verdict and judgment, and the record contains no such error as calls for the reversal of the case.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Rachel E. Johnson, Appellee, v. Charles Bush et al., Appellants.
    Gen. No. 5301.
    1. Dbam-shops—what establishes injury to means of support. In an action hy a mother for injury to her means of support hy the "loss of her son, a recovery will he sustained if the evidence tended to show that, notwithstanding at the time she was living with her husband, she suffered in her means of support by the loss of her son.
    2. Dbam-shops—who liable under section 9. The owner of the premises upon which the dram-shop is kept is liable for an injury resulting under section 9 if such owner knew that such premises were used for the purpose of selling intoxicating liquors.
    3. Dbam-shops—when instruction in action under section 9 proper. In such an action an instruction in the language of the statute is proper.
    4. Dbam-shops—when instruction as to exemplary damages not erroneous. In an action under section 9 of the Dram-Shop Act an instruction is proper which tells the jury that if they find actual damages they may likewise award exemplary damages.
    5. Iustbuctions—when ■ upon exemplary damages will not reverse. Even though an instruction upon this subject may be erroneous it will not reverse if the jury in the form of verdict submitted to them were required to specify what exemplary damages, if any, were awarded, and did not specify that they had awarded any. such damages.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Peoria county; the Hon. L. D. Putebbaugh, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Rehearing denied April 13, 1910.
    John J. Swenie and Quran & Quran, for appellants ; Sheldon F. McGrath, of counsel.
    George A. Shurtleee and Black & Potts, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Rachel E. Johnson brought this suit in the Circuit Court of Peoria county against Charles Bush and Emma Bush and others, to recover damages for injury to her means of support caused by the death of her minor son, Albert Johnson, who was killed by a railroad train while under the influnce of liquor sold him by Charles Bush. The cause was tried on an amended declaration which charged that Albert Johnson, a minor, earned $25 per week at coal mining; and by means thereof maintained the plaintiff and her minor children, and that on October 3, 1907, Charles Bush sold and gave him intoxicating liquors on premises owned by Charles Bush and Emma Bush, and occupied by Charles Bush, thereby causing his intoxication; and that Emma Bush knew that intoxicating liquors were sold thereon; and that by reason of such intoxication, Albert Johnson became' unable to apprehend physical danger, and went upon the track of the Toledo, Peoria & Western Railroad and was killed by a train, whereby plaintiff was injured in her means of support. A plea of not guilty was interposed, and on a trial plaintiff obtained a verdict and judgment for $800, and Charles Bush and Emma Bush appeal.

The proof clearly supported the averments of the declaration except as to the amount of the earnings of deceased. In that particular the proof was that he worked a part of the time in the mine, where he received from $3 to $4 per day, part of the time outside in the timber where he received $1.75 per day, and some of the time on a boat, where he received $1.50 per day. Therefore the judgment should not be disturbed unless it is clear that the jury were misled by some error of the court in ruling on the law.

Appellants’ main contention is, that the loss of wages resulting from the death of appellee’s son, who was about eighteen years of age, was not an injury to appellee’s means of support within the meaning of the statute, as she was living with her husband and he was entitled to the wages of the minor son, and he was the proper plaintiff; and that snch instructions as authorized the jury to take into consideration the likelihood that the deceased would have contributed to the support of appellee in the future, were improper.

The proof shows that the husband, who was also a coal miner, was in the habit of getting drunk from three to four times a week, and that for two years, he had not furnished appellee any money for her support; that she had received some of his wages and some of the wages of the deceased in the form of orders from the store of the company, for which they both worked; and that deceased contributed to the support of the appellee and her family by giving her from eight to ten dollars every two weeks when he worked. As the wages appellee received from deceased constituted a part of her means of support, she, by his death, suffered an injury thereto, and as means of support relate to the future as well as the present, she was therein injured, not only at the time of his death but in time to come, as one of the sources of her future support was thereby cut off and her means of future support were thereby diminished. McMahon v. Sankey, 133 Ill. 636. This class of cases is governed by section 9 of the Dram-Shop Act which, so far as applicable, is as follows: “Every * * * parent * * * who shall be injured in * * * means of support * * * in consequence of the intoxication * * * of any person * * * shall have a right of action in his or her name * * * against any person or persons who shall by selling * * *. intoxicating liquors have caused the intoxication in whole or in part, of such person.” Ellsworth v. Cummins, 134 Ill. App. 397. Begardless of the proposition that the father was the proper plaintiff and co.uld have recovered had he brought the suit, we hold that appellee had a right to recover, and think that the sum awarded is not excessive.

It is contended that, under the evidence, Emma Bush is not liable. The proof shows that at the time the liquor was sold deceased, Charles Bush and Emma Bush were joint owners of the premises, and that she knew that the premises were used by Charles Bush for the purpose of selling intoxicating liquors, and such ownership and knowledge made her liable. Sec. 9 Dram-Shop Act; Helmuth v. Bell, 49 Ill. App. 626.

Complaint is made that the court erred in giving appellee’s first instruction. It was in the language of section 9 of the Dram-Shop Act upon which appellee’s case is based. In Reisch v. The People, 229 Ill. 574, the Supreme Court said: “We are not aware that it has ever been held that it is error to lay down the law in the words of the law itself, but the reverse of this proposition has often been declared.” The instruction condemned by the court in Baker & Reddick v. Summers, 201 Ill. 52, was unlike the instruction here. That instruction after reciting the statute, told the jury the defendants would be liable, “for all damages sustained, and in this case, not exceeding $5,000,” and was held vicious because of the addition of the words quoted above. Reisch v. The People, supra.

The second instruction for appellee does not, as assumed, say, as a matter of law, that the mother was the proper plaintiff, but it does say that if she were injured in her means of support by the death of her son caused by said intoxication, then she is entitled to recover. This we regard as correct.

Appellant complains that appellee’s fourth instruction was erroneous in directing a verdict for appellee, if she sustained damages to her means of support, as averred in the declaration, as the declaration did not state how her means of support was taken away. This contention is without merit as the declaration avers that she was injured in her means of support by the death of her son who was killed by a train while under the influence of liquor sold or given him by Charles Bush upon premises owned by Charles Bush and Emma Bush, Emma Bush knowing that Charles Bush was engaged in selling intoxicating liquor upon said premises.

The court instructed the jury that if they believed from the evidence under the instructions of the court that appellee had sustained actual damages as charged in the declaration, and if they believed from the circumstances in evidence in the case that appellee ought to recover exemplary damages, they might, if they saw fit, in addition to such actual damages as they believed, from all the circumstances in evidence, appellee should recover, give such further sum as exemplary damages as they believed from all the circumstances in evidence appellee should recover. As the proof shows that appellee sustained actual damages, we see no reason why exemplary damages could not be recovered, nor why the instructions relating to exemplary damages are not substantially correct. Moreover, the jury were given a form of verdict asked by appellee as follows:

“ ‘We, the jury, find the defendant guilty and assess the plaintiff’s damages at......dollars,’ filling the ' blank,” and two forms of verdict requested by appellants, as follows:

“If you find the defendants guilty, and in your verdict allow her vindictive or exemplary damages, the form of your verdict may be:

‘We, the jury, find the defendants guilty, and fix the plaintiff’s damages at......dollars; of this amount we fix her actual damages at......dollars. ’

“If you find for the defendants, the form of your verdict may be:

‘We, the jury, find the defendants ‘not guilty.’ ”

The jury used the first form of verdict, and not the second, thereby indicating that they did not find exemplary damages. Thus it is immaterial whether they were or were not correctly instructed on that subject.

We have examined the modifications of appellants’ instructions complained of and find no harmful error therein.

Finding no reversible error in the record, the judgment is affirmed.

Affirmed.


text:
    F. N. Smith, Appellee, v. The Western Union Telegraph Company, Appellant.
    Gen. No. 5304.

      Damages—what cannot he recovered for failure to deliver telegram. Damages which are remote, contingent, problematical, conjectural or speculative cannot be awarded for failure to deliver a telegram.
    Assumpsit. Appeal from the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed March 11, 1910.
    G-eobge H. Fearons, Henry D. Estabrook and A. G. Norton, for appellant.
    Z. F. Tost, for appellee.
   Mr. Justice Willis

delivered the. opinion of the court.

F. N. Smith, appellee, resided at Pontiac, Illinois. His father, a man about seventy years of age, had been sick for. some time at his home in Walden, New York, and appellee had been to visit him. On March 21, 1905, a week or ten days after his return home, appellee wishing to ascertain his father’s condition, delivered to the Western Union Telegraph Company, appellant, a telegram addressed to his father’s physician, which read: “Pontiac, Illinois, 3-21-05. Dr. Brownell, Walden, N. Y. What is father’s condition and chances for recovery? Wire collect. F. N. Smith.” At Walden, New York, the telegram was delivered to Dr. Moffett instead of Dr. Brownell, and Smith, not receiving a reply, without making further effort to secure the information, went to Walden at considerable expense, and found his father’s condition unchanged. He brought this suit in assumpsit in the Circuit Court of Livingston county, to recover damages claimed to have been sustained by reason of appellant’s failure to deliver the telegram. The declaration as originally filed contained the common counts, and later two special counts were added. The first special count averred the negligent failure to transmit and deliver the telegram, by reason of which appellee was injured in his feelings, and went to Walden at great expense and damage to his business. The second special count was substantially like the first, but added that the telegram was delivered to Dr. Moffett and not Dr. Brownell. The plea of non-assumpsit was filed, and it was stipulated that a plea of tender be considered in. At the close of the evidence the court refused appellant’s instruction, and on the hypothesis that appellee had established his case as laid in the declaration by a preponderance of the evidence, instructed the jury for appellee that the tender was insufficient and that appellee’s measure of recovery was what he expended for railroad fares and sleeping-car fares and livery hire in going to Walden and returning to Pontiac, and that nothing could be allowed for mental worry. 'Smith obtained a verdict and judgment for $73, and the company appeals.

It is admitted that appellee paid fifty cents for the transmission and delivery of the telegram, and that appellant tendered a dollar and costs of suit and kept the tender good by bringing it into court. The nondelivery of the telegram, and that appellee expended money in making the trip to Walden and return, is not disputed. Dr. Brownell testified that he did not receive a telegram from appellee March 21, 1905, but received one from him about ten days thereafter through Dr. Moffett; that had he received the telegram, his answer to it would have been, “No change in father’s condition.” Appellee claims that had he received such an answer to his telegram he would not have made the trip to Walden. There is little doubt that he now thinks that he would not have gone, but it is exceedingly speculative as a basis of damages to say that he would not have done so. It might have been that he would not have considered an unchanged condition a good indication at his father’s advanced age, and would have gone just as he did do. “The sender of a telegram is entitled to such damages as are the natural and proximate consequence of the company’s negligence.” Pegram v. Western Union Telegraph Company, 100 N. C. 28; Thompson’s Commentaries on the Law of Negligence, 2457. “The damages arising from the non-delivery of a message asking for information falls within the category of remote, contingent or problematical damages * * * since the parties seeking the information might or might not have acted upon it, if the message had been answered and the information had been correctly given.” Thompson’s Commentaries on the Law of Negligence, 2458; Baldwin v. United States Tel. Co., 45 N. Y. 744. As we everywhere meet the rule that damages must not be contingent and conjectural, to sustain this judgment there must be a certainty that had the telegram been delivered, appellee would not have gone to see his father, and since it cannot be known what appellee would or would not have done had he received the answer to his telegram which Dr. Brownell says he would have sent had the message been delivered to him, we hold that appellee is not entitled to recover as damages the expenses of his trip to and from Walden.

Appellee had a sister and brother-in-law residing at Walden with whom he could have communicated by telegraph or he could have sent another message to Dr. Brownell, and doubtless would have obtained the information he wished and avoided the expense of the journey, but he made no further effort to inform himself concerning his father’s condition before going to Walden. If a party has it in his power to take measures by which his loss may be less aggravated, this will he expected of him. Miller v. Mariner’s Church, 20 Am. Dec. 341. “The party who is affected by the negligence of the company must exercise reasonable diligence to avert or to minimize the harmful consequence of the company’s neglect, and damages which might have been prevented by the exercise of ordinary care can form no ground for recovery.” Am. & Eng. Enc. of Law, vol. 27, page 1033, 2d ed. “If there are other means of communication available to the plaintiff after he becomes aware that his efforts through the defendant company are fruitless, and he knowingly neglects to avail himself of them, he cannot recover for damages which might have been prevented by the use of such other means of communication.” Am. & Eng. Enc. of Law, vol. 27, page 1034, 2d ed.

The court therefore erred in not instructing the jury as requested by appellant that the tender was sufficient, and in instructing them for appellee that the measure of damages was the amount of money expended by appellee for railroad fare and sleeping-car fare and livery hire in going to Walden and returning to Pontiac.

If the tender is still kept good, appellant is entitled to a judgment on the plea of tender, but as we do not know that fact, the judgment of the lower court is reversed and the cause remanded.

Reversed and remanded.


text:
    William H. Walsh, Appellee, v. Henry A. Hertzog, Appellant.
    Gen. No. 5306.

      Replevin—when does not lie for animal taken while running at large. If an animal is taken while trespassing upon the land of another, replevin does not lie against the owner of such land so taking such animal unless a tender of at least nominal damages has been made by the owner of such animal.
    Replevin. Appeal from the County Court of Will county; the Hon. George J., Cowing, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed.
    Opinion filed March 11, 1910.
    Rehearing denied April 13, 1910.
    John W. Downey, for appellant.
    E. Meees, for appellee.
   Me. Justice Willis

delivered the opinion of the court.

The parties to this suit resided in the city of Wilmington. November 19, 1908, appellant found appellee’s horse upon his premises and shut him up in his barn, and upon appellee’s making a demand for the horse, refused to give him up unless he was paid $2 as . damages. Whereupon appellee, without tendering damages, brought suit in replevin to recover possession of the horse before a justice of the peace of Will county and obtained a judgment. On appeal to the County Court of said county the cause was tried by a jury, who returned the following verdict: “We, the jury, find the issues for the plaintiff, and that the right to the possession of property in question is in the plaintiff.” The court overruled a motion for a new trial and entered judgment on the verdict, from which judgment this appeal is taken.

Counsel for appellee argue, that, as the evidence shows that appellee’s son was in pursuit of the horse when it was taken np by appellant, under the authority of Kinder v. Gillespie, 63 Ill. 88, the horse was not running at large in a legal sense. The Kinder case was a suit brought to recover a penalty for permitting horses to run at large contrary to the provisions of an ordinance, and the court there held that there must be some guilty intention or wilful neglect before a party can be made liable for the penalties imposed by an ordinance. As this was not a suit to recover a penalty, for the violation of an ordinance or a statute, but to recover possession of an animal taken up and held for damages under section 21, chapter 54 Hurd’s R. S. 1908, for trespassing, the Kinder case does not apply. This is also true of the case of Case v. Hall, 21 Ill. 632, cited by appellee. “Stock at large, with or without the knowledge or consent of the owner, is unlawfully and wrongfully at large, unless by an affirmative vote, the county, city or village, precinct or town, has been excepted out of the general rule and policy of the state.” Bulpit v. Matthews, 145 Ill. 345. The city of Wilmington had not been excepted out of the general rule but had an ordinance prohibiting domestic animals from running at large.

Counsel for appellee argue that the amount demanded was in excess of the. actual damages done, and that a tender was therefore rendered impracticable. Irrespective of whether or not appellant was entitled to the sum demanded as actual damages, he was at least entitled to nominal damages, as it is not disputed that the horse was taken up while trespassing upon his premises. “Every unauthorized entry on the land of another is a trespass, for which an action will lie. The law implies damage to the owner, and in the absence of proof as to the extent of the injury, he is entitled to recover nominal damages.” Pfeiffer v. Grossman, 15 Ill. 53; McPherson v. James, 69 Ill. App. 337. Appellee should have made a tender of damages before bringing suit, and if he had, and had kept it good, then upon the trial it would have been a question of fact as to whether the tender was sufficient. A tender of damages must he made by the owner of stock for the damage done, at least nominal damages, before he can extinguish the lien of the taker-up, and be in a position to maintain replevin. Holcomb v. Davis, 56 Ill. 413.

As this judgment must be reversed, because it is against the law and the evidence, we do not deem it necessary to consider other assignments of error.

The judgment is reversed.

Reversed.

Finding of facts to be incorporated in the record:

We find that appellee did not tender damages before the suit was commenced; therefore it is not maintainable.


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    Emil Jacobson, Appellee, v. Joseph J. Duffy, Appellant.
    Gen. No. 5178.
    1. Negligence—when declaration does not state cause of action. In an action by a servant against Ms master for personal injuries in which negligence is charged as having been committed by the defendant’s servants, a cause of action is not set up unless it is averred that the servants charged with negligence were not fellow servants of the plaintiff.
    2. Negligence—what declaration charging, need not aver. If the declaration charging negligence sets up sufficient facts from which the law raises a duty on the part of the defendant, an allegation of such duty need not be made.
    3. Statute of Limitations—when new cause of action not set up. If the original declaration stated defectively a good cause of action, an amended declaration which re-states such cause of action in technical form does not set up a new cause of action.
    Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Dobbance Dibell, Judge, presiding. Heard in this court at the April term, 1909.
    Reversed and remanded with directions.
    Opinion filed May 18, 1910.

      J. L. 0 ’Donnell, T. F. Donovan and R. J. Folonie, for appellant.
    A. E. Millee and J. S. Reynolds, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

In 1904 Joseph J. Duffy was engaged in digging a portion of the drainage canal of the Sanitary District of Chicago through what was known as section two, mostly in solid rock, which was broken by the use of dynamite. Holes were drilled in the rock to a depth of ten, twelve or fourteen feet, six or eight feet apart each way across the channel, and a small charge of dynamite, usually a single stick, was then placed in each hole and exploded by electrical appliances. This was called “springing the holes.” The force of the explosion would clear the holes of loose rock, mud and water, and make a pocket in which to place a suitable amount of dynamite to break and disintegrate the rock, after which it was removed. On December 31, 1904, Emil Jacobson and a number of other employes of Duffy were engaged in drilling and springing holes on said section two. Jacobson was working as drill helper six or eight feet from a hole that had.been charged with a single stick of dynamite connected by wire with an electric battery forty or fifty feet distant in charge of another servant of Duffy. Upon a signal ' being given by the foreman that the hole was about to be sprung, Jacobson heard it and left the drill to seek a place of safety. Whether he became confused and stepped in the wrong direction, or whether he slipped upon a loose stone, is not clear from the evidence, but he was directly over the hole when the explosion occurred and was thrown into the air by its force and was injured. He was taken home and was confined to his bed six or eight weeks. On April 4, 1906, he brought suit in the Circuit Court of Will county against Joseph J. Duffy and Mortimer Scanlan to recover damages for injuries claimed to have been so sustained, and filed a declaration containing eight counts. On the trial he dismissed the second, fourth, seventh and eighth counts, and obtained a verdict and judgment for $10,000, which on appeal to this court was reversed. Duffy v. Jacobson, 135 Ill. App. 472. A more complete statement of the facts may there be found. The case was remanded and redocketed, and on October 26, 1907, by leave of court, Jacobson filed five amended and additional counts, to each of which Duffy interposed a plea of not guilty and a plea of the Statute of Limitations. A demurrer was sustained to the pleas of the Statute of Limitations. Scanlan filed a plea denying that he was engaged in the business with Duffy and that he was the owner of machinery or appliances. The suit was dismissed as to Scanlan, and a trial resulted in a verdict of $15,000 against Duffy. A motion for a new trial was made. The court required a remittitur of $7,500 from the verdict, and denied the motion for a new trial and a motion in arrest of judgment. Judgment was entered for $7,500, and Duffy appeals.

The amended or additional counts were filed after the Statute of Limitations had run, and unless they can be regarded as a re-statement of the causes of action set out in the first, third, fifth and sixth counts of the original declaration, the pleas of the Statute of Limitations were a bar, and the ruling of the court on the demurrer to the pleas was erroneous.

The first count of the original declaration charged defendant with the duty to furnish plaintiff a reasonably safe place in which to work, the duty to give warning to him and the several servants, and to warn them of the danger in exploding dynamite and to use precautions necessary to protect the life and limb of plaintiff and the other servants.' There was no allegation of a breach of these duties. In Wells v. O’Hare, 209 Ill. 627, it was said: “A declaration, to recover for negligence, must allege the negligence or omission relied upon to give the right to recover.” The count also alleged that defendant by certain servants caused holes in the rock filled with explosives to be negligently exploded; that defendant, by the negligent manner of his employes who had charge of the explosives, wire or electric batteries, exploded the same in the holes in close proximity to plaintiff. These averments were not sufficient to establish that the relation of fellow-servants did not exist between plaintiff and defendant’s servants by whose negligence plaintiff claims to have been injured, and there was no direct averment that they were not fellow-servants. In Joliet Steel Co. v. Shields, 134 Ill. 209, it was said: “The words, ‘defendant’s servants,’ clearly include any and all of defendant’s servants, and so, necessarily, it is not sufficient here, merely to allege and prove an injury to the plaintiff from the negligence of defendant’s servants generally, for it is just as consistent with that allegation and proof that the defendant is free of liability as that it is liable.” In order to state a cause of action it is necessary to allege directly or by intendment that the servants charged with negligence were not fellow-servants with plaintiff. Joliet Steel Co. v. Shields, supra; Schillinger Bros. v. Smith, 225 Ill. 74. The third count has the same defect as the first. We held on the former hearing of this case, not as appellee claims, that the first and third counts stated .a cause of. action defectively, but that they failed to state a cause of action; and on a review of the record we discover nothing that would cause us to hold differently. If, as we held, the first and third counts of the original declaration did not state a cause of action, then it must follow that if the first and second additional counts filed October 26, 1907, two years and nine months after the accident, to amend the first and third counts of the original declaration, did state a cause of action, it was a new and different cause of action, as these counts were a re-statement of matter pleaded in the first and third original counts with new matter added. The allegation that the servants of appellant through whose negligence appellee was injured were not fellow-servants with appellee, and the averment of appellant’s breach of duty, were not contained in any count of the original declaration, and as the counts containing these allegations were not filed within the Statute of Limitations, the cause therein stated was thereby barred. Mackey v. Northern Milling Co., 210 Ill. 115; Bahr v. National Safe Deposit Co., 234 Ill. 101. The court erred in sustaining the demurrer to the pleas of the Statute of Limitations interposed to the first and second amended counts.

The fifth count of the original declaration alleged that the defendant was engaged in drilling and excavating dirt and rock from a certain portion of the drainage canal, and to carry on said work used machinery, drills and dynamite for blasting the rock, and employed workmen, among whom was plaintiff, who was employed as drill helper; that in springing the holes, dirt and rock would fly in all. directions, endangering the lives and limbs of persons working near; that plaintiff was in defendant’s employ and exercising due care for his own safety, and that it was defendant’s duty to warn plaintiff when the holes were to be sprung and give him time and opportunity to escape danger, but regardless of such duty, defendant did not warn plaintiff in time to escape danger, by reason whereof plaintiff was not aware that said holes were about to be sprung, and defendant exploded a blast and caused stone, dirt, wire and rock to strike plaintiff and injure him. The sixth count alleged that defendant was engaged in digging dirt and rock from a portion of the drainage canal, and to carry on said business used machinery, drills and dynamite in blasting the rock, and employed workmen, among whom was plaintiff, who was employed as drill helper; that it was defendant’s custom to give warning and give plaintiff and other employes time and opportunity to escape danger and to get in a place of safety when the holes loaded with dynamite were to be blasted, and that the warning of “fire” or blowing a whistle was given; that plaintiff knew and relied on such custom for his protection; that it was defendant’s duty to warn plaintiff and to give warning “fire” or blow said whistle or give other warning of danger in time for him to escape all danger, but defendant contrary to said custom did not warn plaintiff or blow said whistle in time for plaintiff to escape all danger, and exploded a blast, by reason whereof while plaintiff was in the exercise of ordinary care, he was injured.

We are of the opinion that the allegations contained in the fifth and sixth counts stated a cause of action defectively, but that sufficient facts were set up from which the law would raise a duty on the part of defendant to warn, plaintiff in sufficient time for him to escape all danger before springing the holes, and that enough was charged to form a basis for the third, fourth and fifth • additional counts. The Statute of Limitations requiring a suit for, personal injuries to be brought within two years docs not apply to matters of pleading, and should not be given that effect indirectly by holding that an imperfect statement of a cause of action is no statement at all. North Chicago Street R. R. v. Aufmann, 221 Ill. 619. The third, fourth and fifth additional counts were a re-statement in somewhat different form of the cause of action set up in the fifth and sixth original counts. If the third, fourth and fifth additional counts had stated some other cause of negligence there would be force in appellant’s contention that all the additional counts stated a cause of action barred by the Statute of Limitations. The demurrer was properly sustained to the pleas of the Statute of Limitations interposed to the third, fourth and fifth additional counts.

An examination shows that the act or wrong relied on in the first and second additional counts is the negligence of appellant’s servants, not fellow-servants with appellee, and the act or wrong relied on in the third, fourth and fifth additional counts is appellant’s neglect to warn appellee when about to spring the holes so that he could escape danger; one the wrong of appellant’s servants and the other that of appellant himself. The evidence to sustain the one would not sustain the other and the evidence relied on as a defense to one could not be relied on as a defense to the other. The plea of not guilty made an issue to be tried by the jury on each of the additional counts. Much evidence was introduced by the respective parties on the issues presented. For aught that appears, the jury may have based their verdict entirely on the issues raised upon the first or second additional counts containing causes of action not pleaded until barred by the Statute of Limitations. Under such circumstances, it cannot be said that appellant was not prejudiced by the ruling of the court in sustaining the demurrer to the pleas of the Statute of Limitations interposed to the first and second additional counts. Chicago City Ry. Co. v. Leach, 182 Ill. 359.

Appellee’s contention that the judgment should not be reversed if the declaration contains a count that is good is not applicable to the condition of this record, since it contains a cause of action pleaded within the limit of the Statute of Limitations and another pleaded for the first time after the bar of the statute, and it cannot be determined upon which the verdict rests.

Other assignments of error have been argued, but the same questions are not likely to arise again in the same form, and we think it unnecessary to discuss them, except to suggest that $7,500 seems to us to be more than adequate compensation for the injuries this record shows appellee has sustained.

For the error of the trial court in sustaining the demurrer to the pleas of the Statute of Limitations interposed to the first and second additional counts, the judgment of the Circuit Court is reversed and the cause remanded, with directions to the trial court to overrule the demurrer to the pleas of the Statute of Limitations interposed to the first and second additional counts.

Reversed and remanded with directions.

Mr. Pbesiding Justice Dibell took no part.


text:
    Walter H. Bartholomew, Plaintiff in Error, v. Illinois Valley Railway Company, Defendant in Error.
    Gen. No. 5275.
    1. Instructions—when should be accurate. If a case is close on the facts it is important and material that the jury should, be • correctly and accurately instructed.
    2. Instructions—effect of giving large and unnecessary number. The action of the court in giving a large number of instructions is liable to impress the jury with the belief that the court is instructing strongly in favor of the party at whose instance such instructions are given.
    3. Instructions—when upon rules of master erroneous. An instruction which substantially tells the jury that the failure of the servant to obey a rule will preclude a recovery by him, is erroneous if it does not set forth the rule in the entirety and if it does not call the attention of the jury to other rules bearing upon the same subject-matter and if it does not permit the jury to take into account the fact that a sudden emergency shown by the evidence might justify such non-observance.
    4. Instructions—lohen as to selection of dangerous way of doing work erroneous. An instruction which among other things tells the jury that where there are two ways open to an employe in which to do a certain act one of which is safe and the other is accompanied by dangers obvious to him or which would be obvious to him in the exercise of ordinary care on his part and he voluntarily selects the dangerous manner of doing the act in question and is injured, then, as a matter of law, he cannot recover, is erroneous if it fails to take into consideration the question whether the plaintiff was confronted by a sudden emergency which did not give him an opportunity to make a careful choice between two possible courses of conduct.
    5. Master and servant—when disobedience of rule does not preclude recovery. It is not every disobedience by' the servant of a rule of a master which will preclude a recovery hy such servant; a sudden emergency may arise which will justify such disobedience.
    6. Master and servant—when doctrine of assumed risk does not apply. It is not a knowledge of defects by the servant which brings into operation the doctrine of assumed risk, but the knowledge of the danger arising from such defects.
    Action in case for personal injuries. Error to the Circuit Court of La Salle county; the Hon. R. M. Skinner, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed May 18, 1910.
    Botsford, Wayne & Botsford and Butters & Armstrong, for plaintiff in error.
    Duncan, Doyle & O’Conor, for defendant in error.
   Mr. Justice Willis

delivered the opinion of the court.

This was an action brought by Walter H. Bartholomew, plaintiff in error, hereinafter called the plaintiff, against the Illinois Valley Railway Company, defendant in error, hereinafter called the defendant, to recover damages for injuries received by him on June 11, 1907, while employed by said company as a motorman, on its electric interurban railroad. There was a trial on the first four counts of the declaration, to which defendant had pleaded the general issue, and a verdict in favor of defendant. A motion for a new-trial was overruled and defendant had judgment against plaintiff, and the latter has sued out this writ of error to review said judgment.

Plaintiff had worked for defendant as a motorman for nearly two months before the accident in question, and had had considerable experience before that time as motorman for other electric railway companies. He first went to work for defendant the latter part of April, 1907, and was in its employ continuously up to the time of the accident on June 11, 1907. The railway of defendant extends from Seneca, in LaSalle county, through Ottawa, La'Salle, Peru and Be Pue, to Princeton, in Bureau county. When plaintiff was hired by the company he first took a' few trips over the line with another motorman, for the purpose of learning the road, and then was placed on a construction train, operating that train as its motorman between Be Pue and Princeton. As he lived in La Salle at this time, he was obliged to ride on the company’s cars in the morning from LaSalle to Be Pue, where he met the construction train. In the evening after the day’s work was finished and he had left the construction train at Be Pue, he would return to La Salle as a passenger on one of the company’s cars. Thus during the time he was working on the construction train, he was not called upon to operate a car over that portion of the line on which the accident here in question happened, which was on a viaduct between the cities of La Salle and Peru. On the 20th of May, 1907, he was placed in charge of a passenger car and began making trips between Seneca and Princeton, although not regularly, as he was on the “extra” list. On the night in question, plaintiff was ordered to make a number of trips to and from the circus grounds, located in the northern part of the city of La Salle, where a circus or Wild West Show was exhibiting. He had madé two round trips between the city and the show grounds before the close of the performance that evening, when he was ordered to run his car from the show grounds to Spring Valley, which is located some distance west of La Salle. There were three cars or sections in the train in which he was running, and his car was the second section. These three cars, however, were not coupled together, hut were operated as separate sections, each having its own crew of two men. The second section, operated by plaintiff, started from the show grounds a little after ten o’clock. It was filled with passengers seated and standing, and the car was so full that some passengers were obliged to stand in the open doorway back of the motorman. The car in question stopped a moment at the car barns for the purpose of procuring a new headlight, and then proceeded west towards the cities of Peru and Spring Valley. Between La Salle and Peru there is a ravine about forty feet deep spanned by a viaduct. At the time of the accident, both wagon traffic and the interurban rails were carried across the ravine by this viaduct, although since then the railway company has built another viaduct exclusively for its line. But at that time the company used the highway viaduct, the track of the company being laid on the extreme north or right hand side, going west. The trolley wire over the track was conveyed and supported across this viaduct by being fastened to a metallic arm which extended over the track from a wooden pole which had been erected in about the middle of the ravine and just north of the viaduct. The space between this wooden pole and the side of the passing car was about eighteen inches. The track made a curve to the south just before coming to the viaduct in going west.

On the night in question plaintiff approached this viaduct at the rate of five or six miles per hour. As his car was going around the curve just before reaching the viaduct, he saw a man running as if to climb on the front end of the car. Plaintiff did not stop his car, hut continued on to the viaduct. He testified that the man who was running did not make any signal that he wished to have the car stop and take him on, but appeared to be trying to steal a ride. After the car was out on the viaduct, plaintiff shut off the power, threw the air brake half on, stepped to the right hand or north edge of the car platform and, grasping the side handles, leaned out and looked back. As he did so, he was struck by the pole described above and was thrown to the bottom of the ravine. The car was stopped near the west end of the viaduct and when plaintiff was brought up to the highway again and taken to the hospital, he was found to have sustained very serious injuries of a permanent character. His left leg had to be amputated; he partially lost the use of his right arm and right hand; his jaws were dislocated so that he cannot masticate his food, and he was injured on the head and chest.

Defendant claims that the verdict of the jury and the judgment of the court are correct and the only conclusion which could be reached under the evidence, for the reasons, first, that plaintiff was bound to know of the location of this post so close to passing cars, and therefore assumed the risk arising from the location of the post; and, second, because the plaintiff was guilty of contributory negligence at the time the accident occurred. In support of the first point, defendant relies upon the fact that Bartholomew had gone over this viaduct sixty-two times, not counting his trial trips over the line, and on most of such trips had been acting as motorman, and argues therefrom that he could not fail to know where this wooden pole stood with relation to passing cars. We are unable to.sustain this contention. Plaintiff was not required to perform any duty in regard to this pole. There is no evidence in the record that his attention had ever been directed to this pole by any officer or employe of the company. On the north or right hand side of the company’s right of way, on which this pole stood, there was nothing which required the attention of motormen to be directed that way in passing over the viaduct. No teams or foot passengers could traverse the viaduct on that side, and there was nothing there to interfere with the passage of a car or for which a motorman need be on the watch. On the other hand, the south side of this viaduct was used for the passage of teams and, as this was practically the only highway connection between the cities of La Salle and Peru, a large amount of teaming was necessarily in almost continuous use of that part of the viaduct. There was no wall between the highway used by teams and the track of defendant. It was therefore necessary for the motorman on a car passing over this viaduct to be watchful of the traffic to the south of him to avoid colliding with any teams coming too close to the track. It seems to the court that this would be one of the chief duties of a motorman in crossing the viaduct, and that he might very easily pass the pole in question a great many times and not have his attention directed to it at all.

The second defense urged by defendant, namely, that plaintiff was guilty of contributory negligence and so could not recover, presents a close question, under the evidence. One of the rules for trainmen under which this company was operated was offered in evidence as Eule No. 190. It read as follows: “In case of accidents, however slight, to personal property, in connection with or caused by any train the trainmen in charge of same will render all assistance necessary and practicable, and make the best of the situation. In no case will they go away leaving injured persons without first having seen that they are cared for. Conductors and motormen will make immediate verbal report to dispatcher of any accident, blockade or mishap of any kind.” Plaintiff testified that he saw a man running as if to board his car at the front end just before the car went upon the viaduct and it is implied from his evidence, and is the theory of the case made by the plaintiff, that he feared the man had not succeeded in boarding the car but had fallen under the wheels, and that his action in slowing the speed of the car and in looking back was for the purpose of seeing whether such an accident had occurred, and that his' doing so was in full accord with said Eule No. 190; and also that plaintiff did not stop his car at once upon conceiving that this man might have fallen under the wheels, because his car was being closely followed by the third section of the train and he feared a rear end collision. Defendant introduced proof tending to show that the motorman had made conflicting statements as to his reason for looking back along the side of the car, and suggests that his actions in that regard were actuated mainly by a desire to “show off” before some young women who were standing in the open front door of the car just behind him.

In view of the conflicting evidence and the closeness of the question as to contributory negligence on the part of the plaintiff, it was very important and material that the jury should be instructed correctly; and plaintiff complains of instructions numbered from 4 to 39 given at the request of defendant. The court gave thirty-five instructions at the request of the defendant. We can see no necessity for the giving of such a large number of instructions, and we regard such action by the court as liable to impress the jury with the belief that the court was instructing strongly in favor of the defendant. This court, in Pioneer Fire Proofing Co. v. Clifford, 135 Ill. App. 417, disapproved of the practice of giving a large number of instructions, some of which were mere repetitions of others, gome of these given instructions are in our opinion erroneous. Instruction No. 37 was to the effect that if a certain rule of the company, set out therein, was delivered to plaintiff by defendant in error and was the only rule on that subject, and if plaintiff just before the accident acted contrary to the rule in leaving the mechanism of his car and attempting to do something besides control the mechanism and watch the road, and thereby caused the accident, he could not recover and the jury should find the defendant not guilty. Instruction No. 38 was substantially the same. The rule therein referred to is only partially quoted in these instructions, the quotation stopping in the middle of a sentence and not including three parts of the rule, the last of which implies that the motorman may have cause to leave the operating mechanism and position, but that he must not leave the platform of the car except in a single contingency stated. There is also another rule of the company which had a possible bearing upon what seemed to be the duty of plaintiff under the circumstances, namely, Buie 190, which we have set out in full above, and which requires that trainmen should not leave persons injured without caring for them. It is argued that if, as the evidence tends to show, plaintiff feared a man had fallen under his car, he should, in obedience to Buie 190, have stopped his car at once and then descended to the ground before looking to see if an accident had happened; and that, in allowing his car to continue in motion and in leaning out from the car to look back, he was both failing to obey Buie 190 and was guilty of negligence in regard to his own safety. We cannot agree with this position. This car was heavily loaded with passengers and was closely followed by another section of the same train. If plaintiff had stopped his car at this point, right in front of the third section and just beyond a curve, he might have produced a still more serious accident; and he may well have been in doubt as to what his duty required of him, and he may have believed it his first duty to ascertain how near the other car was to him before bringing his car to a complete stop. If the exfidence of Bartholomew was true, he was confronted with a sudden emergency, and he could not be required to act with the same deliberation as if he had had ample time to consider the entire situation. Instructions 37 and 38 therefore not only omit to set out other rules imposing other duties upon the motorman, but they fail to take cognizance of Ms evidence tending to show that an apparently serious situation suddenly confronted him. Besides, we do not think it can be said to be the law that in every case mere disobedience of a rule, where an emergency seems to call for such disobedience, xvill cause the employe, if injured, to lose his right to recover damages therefor. Again, we are, of opinion that there was no evidence in this case from which the jury could find that the violation by plaintiff of the rule requiring a motorman to do nothing but handle the operating mechanism and watch the road, caused the accident. As we view the matter, under the evidence the violation of the rulé did not canse the accident at all. If Bartholomew had left the mechanism and looked back a moment later, he would not then have been hurt. We regard it as a correct statement to say that Ms leaving the mechanism and going to the side of the car and looking back merely afforded the opportunity for the injury, but that it no more caused the injury than it could be said that plaintiff caused the injury by going to work that day. If, upon his leaving the mechanism, it had exploded and injured Mm when it would not have done so if he had remained by it, or if, because of his leaving the mechanism, the car had struck some object in front of it and he had thereby been injured, then it could be said that his act in leaving the mechanism and the position required of him by the rules of the company was the cause of the injury. We are of opinion that the jury could not reasonably find that the leaving of the mechanism in this case caused the injury or tended to cause it, but merely that it gave him the opportunity to be in the place where he was hurt. Smithwick v. Hall & Upson Co., 59 Conn. 261; Fickett v. Lisbon Falls Fibre Co., 91 Me. 268; Helfenstein v. Medart, 136 Mo. 595; Horan v. C. St. P. M. & O. Ry. Co., 89 Ia. 328, and Southern Ry. Co. v. Baston, 99 Ga. 798, are cases illustrating our view that the leaving of Ms position did not cause this injury.

Instruction No. 39 told the jury, among other things, that where there are two ways open to an employe in wMch to do a certain act, one of which is safe and the other is accompanied by dangers obvious to him, or wMch would be obvious to Mm in the exercise of ordinary care on his part, and he voluntarily selects the dangerous manner of doing the act in question, and is injured, then, as a matter of law, such employe has no right of action against Ms employer for any damages growing out of such injury. This instruction is a correct statement of the law, so far as it goes, but it fails to take into consideration the question whether plaintiff in this case was confronted by a sudden emergency which did not give him an opportunity to make a careful choice between the two possible courses of conduct, nor whether he could safely stop his car when followed so closely by another just beyond the curve. We think this instruction should not have been given in this case without some modification.

Instruction No. 23 told the jury that if Bartholomew did not exercise ordinary care to discover the condition of this pole, he could not recover. We think this instruction erroneous. ' It is true that plaintiff was bound to exercise ordinary care within the line of his employment, but he was not charged with the duty of inspection, and it was for the jury to determine whether or not the exercise of ordinary care on the part of Bartholomew in the performance of his duties would have attracted his attention to the position of the pole. Instructions Nos. 18 and 26 were erroneous in that, while leaving it to the jury to determine whether plaintiff knew of the existence of the pole and its proximity to the track, or by the exercise of ordinary care could have known of it, they failed to leave to the jury the question whether plaintiff knew of the danger caused by the nearness of the pole to a passing car. In numerous cases in this state it has been held that there is a distinction between knowledge of certain defects and knowledge of the danger arising from such defects. North Chicago St. R. R. Co. v. Dudgeon, 184 Ill. 477; Byrne v. Marshall Field & Co., 237 Ill. 384.

We are of opinion that plaintiff is entitled to another trial. The judgment will therefore be reversed and the cause remanded.

.Reversed and remanded.