text:
    Edward I. Rubendall, Appellee, v. Horace Tarbox et al., Appellants. Evans Plumbing & Heating Company et al., Appellees.
    Gen. No. 6,176.
    1. Appeal and error, § 910

      —when supplemental record may be certified and filed by clerh. A supplemental record on appeal may be prepared and certified by the clerk and filed without the suggestion of a diminution of the record and issuance and service, on the clerk, of a certiorari.
    2. Appeal and error, § 963*—what is effect of certified record on appeal. A record on appeal, duly certified by the clerk of the court below, imports verity, and cannot be contradicted by affidavits.
    3. Appeal and error, § 963*—when affidavit attaching correctness of certified record insufficient. An affidavit attacking the correctness of a record on appeal in a chancery proceeding, duly certified by the clerk of the court below, which merely shows that in the chancery record, for the day on which the bill was filed and summons thereon issued, no placita appears, is insufficient, since a proper placita entered for that day in the common-law record, which the reviewing court would have to assume was entered, would supply such omissions.
    4. Appeal and error, § 943*—how omission of clerh to enter placita in chancery record may be supplied. Since the Circuit Court, when properly convened, is open for the transaction of both common-law and chancery business, the omission of the clerk to enter a placita in the chancery record, on the day on which a bill was filed and summons thereon issued, may be supplied, on making up a record of the suit on appeal, by using thb.placita entered on that day in the common-law record.
    5. Appeal and error, § 494

      —when defendant may not object that other defendants were defaulted improperly. In a proceeding to establish mechanics’ liens, a defendant cannot, on appeal, object that other named defendants were defaulted by an order in which they were not named, where such objecting defendants did not object thereto before going to a hearing before the master, nor raise such question in their objections or exceptions to the master’s report, nor at any time in the trial court, and where, in the final decree, such defendants were defaulted by name.-
    6. Equity, § 422*—when master may report all stipulations and agreements made orally by parties upon a reference. It is a valid practice for a master, upon a reference, to report all stipulations and agreements made orally by the parties appearing before him.
    7. Appeal and error—when objection that witness not properly sworn may not be made for first time on appeal. Objections that witnesses before a master in chancery were not properly sworn will not be considered where made for the first time on appeal from the decree.
    8. Appeal and error, § 1272*—when presumed that questions correctly decided in trial court in absence of abstract. Where the appellant in a proceeding to establish a mechanic’s lien fails to abstract the evidence and objections filed to the master’s report, no questions, of fact are raised, and all such questions must be presumed to have been correctly decided by the court below.
    9. Mechanics’ liens, § 202*—when judgment proper in form. A decree in a proceeding to establish a mechanic’s lien that the defendants named do pay certain sums, and in case of default the master is ordered to sell the premises, held not a money decree but one in the alternative, and valid.
    10. Mechanics’ liens, § 212*—rwhen defendant failing to assert lacle of liability in lower court bound as owner. A defendant in a proceeding to establish a mechanic’s lien held liable as owner of the premises, though she had never signed the written contract for the construction of the building, entered into by co-owners with her authority, where she did not allege in her answer that she was not bound thereby, and made no objection to the master’s report which found her liable, or in any way asserted in the lower court her lack of liability, but had purchased the interest of a co-owner and accepted a deed binding her to pay the unpaid cost of the erection of the building.

      11. Mechanics’ liens, § 202

      —when decree not objectionable because ordering building owned by several defendants sold as a whole. A decree in a proceeding to establish a mechanic’s lien on premises consisting of a single building erected upon land, separate portions of which were owned by different defendants, held not objectionable because the amount due was not apportioned among the various defendants, inasmuch as an apportionment was impracticable.
    12. Mechanics’ liens, § 212*—when failure to apportion amount due against the various owners may not be raised on appeal. The question of the apportionment of the amount due among the several owners of a building, in proceedings to establish a mechanic’s lien upon premises instead of ordering the building sold as a whole for the entire debt, may not be raised on appeal where no such objection was raised in the court below nor claim to that effect made in the answer.
    13. Equity, § 440*—when re-reference to master unnecessary. Where, in a proceeding to establish mechanics’ liens, the master allowed the entire claim of a material man for materials furnished, both under his contract with the building contractor and directly to the owners after the contractor’s discharge, held that the chancellor’s action, in deducting from such allowance the amount accruing before the contractor’s discharge and adding it to his allowance, was proper without referring the matter again to the master, though the contractor in his bill stated that he was uncertain whether or not he was entitled to such item, inasmuch as it was immaterial to the owners who received payment for such item and the material man had assigned no cross error on such action.
    Appeal from the Circuit Court of Stephenson county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the October term.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 14, 1916.
    Rehearing denied May 24, 1916.
    Cuthbbrt D. Potts and Edward Roby, for appellants.
    Louis H. Burrell and Charles H. Green, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

This record begins with a bill of complaint by Edward I. Rubendall against twenty-three defendants for a mechanic’s lien on Lots 1 and 10, Block 56, in the original Town of Freeport, Stephenson county, Illinois, and ends with a decree establishing liens upon said property in favor of Rubendall for $3,697.23, with interest thereon at five per cent, per annum from April 4, 1913, and in favor of the Evans Plumbing & Heating Company for $519.74, and interest thereon at five per cent, per annum from July 7,1913, from which decree those defendants who were owners of said real estate at the entry of said decree, to wit, Horace, Mary, Winifred and Ruth Tarbox, prosecute this appeal. After the record was filed in this court, those who had theretofore been solicitors for said defendants withdrew their appearance and other solicitors who had been strangers to the litigation thereafter conducted the cause in this court. In their original brief herein it was contended that there is no plácito, in the record, and therefore the court never acquired jurisdiction of the cause; that the bill of complaint was never filed and therefore the clerk had no authority to issue a summons and the service of the summons conferred no jurisdiction; that the summons was without seal and was therefore void; that certain amendments, subsequently filed to the bill of complaint, constituted an amended bill and that equity practice required that a new summons should be issued under said amended bill, and as none was issued no jurisdiction was acquired ; that the large number of defendants who never answered were never defaulted and therefore the cause was never at issue and could not be referred to the master or go to a final decree; that a supposed order defaulting all defendants who had not entered their appearance was void because no defendants were named; that the cause was never referred to the master ; that a supposed order of reference and numerous other orders set out in the record were not orders of court because not preceded by anything showing a court in session; that various recitals by the master in his report that certain parties stipulated before him to begin the hearing of proofs on a certain date, and to adjourn the hearing of proofs to certain dates, and that a certain witness, if present, would testify to certain specified facts, and that certain .other specified facts were admitted, and that the signatures of the witnesses were waived, are all void because the master is without power to state his conclusions that such stipulations were made before him, but that in .each case there should have been a written stipulation signed by the parties or their solicitors, and for want thereof the parties are not bound by any such statements in the report; that about one-half of the witnesses before the master are not stated to have been sworn and therefore their evidence must be rejected; that the rest of the witnesses before the master, though stated to have been sworn, are not shown to have been sworn to testify to the truth, but they may have been sworn to perform some official act, and also that the report does not show by whom the oath was administered, and therefore their testimony is void and must be rejected, and there is no evidence in the record; that Mary Tarbox never signed the contract upon which the suit is founded and therefore no mechanic’s lien could be entered against her property; that different parts of the land upon which the building in question rests are owned severally by different defendants and that the decree is erroneous because it does not make specific sums liens upon the real estate owned by each, but gives one lien upon all the land; that there is a money decree against the appellants and that such a decree cannot be had in a suit to establish a mechanic’s lien, and that no such money decree in any event could be entered against Mary Tarbox because she did not sign the contract.

Thereupon, appellees Bubendall and the Evans Plumbing & Heating Company, by leave of court, filed a supplemental record, which showed that there should be inserted at the beginning of the record a certain plaeita, set out in said supplemental record, and that certain other placitas and convening orders showing the court in session should be inserted at certain specified pages of the original record; and various other matters were specified therein; and the clerk certified that said original record, filed herein, and said additions thereto, constitute a complete record of the cause as appeared from the records and files of his office. It is argued that this court should not have permitted said supplemental record to be filed. Apparently it is meant that the clerk could not of his own motion prepare such a supplemental record, but that a diminution of the record should have been suggested, and a certiorari issued and served upon the clerk and a record filed by him in obedience thereto. In the case entitled “Anonymous,” 40 Ill. 53, a transcript of the record had been filed and afterwards an amended transcript was filed, and counsel inquired whether the amended transcript was to be regarded as the record or only a part of the first record, to which the court replied: “The last record sent up we regard as a part of the former record, and as supplying its defects.” In Flagler v. Crow, 40 Ill. 70, it was held that where there is no objection, plaintiff in error will be permitted to file an additional transcript of the record instead of applying for a certiorari; and in Rowley v. Hughes, 40 Ill. 71, it was suggested by counsel that the clerk of the court below had omitted to copy a seal to an acknowledgment appearing in the transcript, and the court held that the clerk below could copy the certificate of acknowledgment and the deed, if necessary, to show its identity, and attach the seal, and certify it accordingly; and counsel then asked if it was necessary that a writ of certiorari should issue to make the additional transcript a part of the record, and the court said: “No writ of certiorari is necessary; the party interested in making the amendment can file it as an additional or amended record, and it will be considered in connection with the original transcript.” In Goodrich v. Cook, 81 Ill. 41, it was assigned for error that there was no evidence in the record sustaining a part of the decree. Defendant in error then filed an additional record, setting out the omitted evidence. After passing on certain other objections, not material here, the court held that when the supplemental record was filed it became a part of the record in the case and must be considered as if it had been incorporated in the original record. In Vahle v. Brackenseik, 145 Ill. 231, it was insisted in the Appellate Court that the reo ord did not show service upon the appellant. Appellee obtained leave to file an additional record showing service upon appellant. Appellant moved to strike the amended record from the files, and that motion was denied, and that action by the Appellate Court was assigned as error in the Supreme Court because the amended record was permitted to be filed instanter without notice to appellant and without the issue of a certiorari. It was held that the practice adopted by the Appellate Court was proper and consistent with the uniform practice in the Supreme Court, and that when an amended record has been made and properly certified and is ready to be filed, the issuance of a certiorari is unnecessary. We are therefore of the opinion that the objections to this additional record are not well taken. There is an affidavit on file by one of counsel for appellants, which is in conflict in part with said additional record, and it seems to be therefore insisted that said additional record is not true; but we are of opinion that the record duly certified by the clerk of the court below imports verity and cannot be so contradicted. But, if it could be, the showing is insufficient. Said affidavit shows that the solicitor making it visited the office of the clerk of the court below, since the record was filed here, and examined the chancery record and did not find therein certain placitas and certain convening orders certified in this amended record to be part of the record of the court below, and especially a placita as of the day when the amended record shows the bill was filed, being the day when the summons was issued and dated. The affiant does not claim to have searched the common-law record on the same day, and if this affidavit were to be considered we would be rev quired to assume that there was in the common-law record a placita showing the Circuit Court duly organized and transacting legal business. There are not two separate Circuit Courts, one at law and the other in chancery; and if the court is properly convened it is for the transaction of all kinds of business, unless the statute provides otherwise. If on a particular day the clerk had failed to enter a proper placita in the chancery record, we do not doubt that in preparing a record in a chancery cause the clerk could take the placita appearing in the common-law record for that day and thus make it appear that the court was duly organized when a certain bill in chancery was filed. Incidentally, it was made to appear that the former solicitor for appellants prepared this record and omitted therefrom the various matters incorporated in the additional record, and that the clerk failed to notice these omissions when he certified to the original record. We are of opinion that the additional record stands unimpeached as a part of the cause now before us.

From the whole record now before us it appears that the record is introduced by a sufficient placita; that the bill of complaint was in fact filed on July 29, 1913, on which day the summons was issued; that said summons was authenticated by the proper seal; that the amendment to the bill and the answers were duly filed; that the several orders which appellants in their brief treat as nullities were in fact entered in this cause in term time; that the final decree was duly entered in term time; and that many other supposed technical terrors in the record do not exist. The four appellants and the Evans Company answered. Bessie Shoemaker was defaulted. Afterwards an order was entered,' defaulting all defendants who had not entered an appearance. We are of opinion that it was not necessary that each defaulted defendant should be named, but if there were any doubt about that, appellants did not object to going to a hearing before the master because some defendants had not been sufficiently defaulted, nor did they raise any such question in their objections or exceptions to the master’s report, nor did they ever raise the question in the court below. Moreover, in the final decree the defendants were again defaulted, the name of each defaulted defendant being expressly stated. We hold that it is a recognized and valid practice, upon a reference to a master, for that officer to report all stipulations and agreements made orally by the parties appearing before him. If the rule were otherwise, still appellants did not object to the master’s report on the ground that such agreements and stipulations were incorrectly reported by him, or that he lacked the power to make such a report. Nor do their objections claim that the witnesses were not duly and properly sworn before the master. That point was not raised in the court below. Appellants’ discussion of the “loose leaf” system of keeping court records, if it were before us, is answered in People v. Ward, 272 Ill. 65.

The evidence taken before the master occupies over 1,100 pages of this record. Appellants have not abstracted it. They did not abstract any of the objections which they filed to the master’s report. They therefore have not raised upon this record any question of fact, but all questions of fact must be presumed to have been correctly decided by the court below. Appellee Eubendall has abstracted those objections in order to show that, almost exclusively, they relate only to questions of fact, and that the objections now most insisted upon by appellants were not raised by appellants by objections to the master’s report, and therefore in the main they cannot be considered here.

After fixing the amounts due to appellees, Eubendall and the Evans Company, the final decree proceeded as follows: “That the defendants Mary Tarbox, Horace Tarbox, Winifred Tarbox and Buth Tarbox do pay the said several sums in this decree mentioned within forty days from this date, and in case of default in the payment of said sums or either of them, that then and in that case the master in chancery of this court is ordered to sell said described premises,” etc. This is not followed by any provision that said defendants shall be liable for any deficiency if the sale of the premises does not produce the amounts named. It is argued that this is a money decree, and that a money decree cannot be lawfully entered in a suit for a mechanic’s lien. We hold that this is not a money decree, but is in the alternative, and means only that unless the defendants pay said sums within the time limited, the premises shall be sold. This is held in Gochenour v. Mowry, 33 Ill. 331; Glover v. Benjamin, 73 Ill. 42; Kirby v. Runals, 140 Ill. 289; Roberts v. Flatt, 142 Ill. 485; Bumgartner v. Hall, 163 Ill. 136; and so we held in Pierce v. Coryn, 139 Ill. App. 445. It is also said that a decree is not justified against the interest of Mary Tarbox, one of the appellants, because she did not sign the written contract reliéd upon in the bill of complaint. The bill shows that she did not sign it, but alleges that it was made with full authority from her and that she knowingly permitted the other appellants to contract for the erection and construction of said building. In her answer she, with the other appellants, admitted that they all entered into said agreement, and she did not allege in said answer that she was not bound because she did not sign it. She joined in the defense before the master, and made no such objection to the report which found her liable. Before the building was completed she purchased the interest of Bessie Shoemaker in said real estate and accepted a deed from Bessie Shoemaker to Mary Tarbox, which bound the latter to pay the unpaid cost of the erection of said building. She never asserted in the court below any lack of liability on her part for whatever, if anything, was justly due to Rubendall and the Evans Company. We hold that the decree correctly held her bound with the other owners.

Each appellant owned separate interests in a part only of the land upon which this building was erected, except that one of them owned an easement in some of the land belonging to the others, and that several of them owned one piece jointly. It is claimed by appellants that the amount of the lien should have been apportioned among the several pieces, and that for this reason the decree for the sale of the whole for the entire debt is erroneous. The appellants were the heirs of the Tarbox estate and contracted to put one building upon all their holdings. Their answer is very insufficiently abstracted. It admits very many things charged in the bill. It nowhere claims that the lien ought to be apportioned among the several pieces of land; Appellants had caused an architect to prepare plans and specifications under which the building was erected, and these plans and specifications are in the record and are not abstracted. They show that this was a contract to erect a single building of six stories under one roof, with one elevator and one furnace for the entire building, and that the lines of the various division walls within the building do not correspond with the lines of the respective portions owned by the respective parties. They show that it would be impossible, or at least utterly impracticable, to apportion the total cost of the building among these several small pieces of land. No such question was raised by the objections filed by the appellants to the master’s report, and it therefore was not raised in the court below. Portions of the Mechanics ’ Liens Act contain provisions applicable to somewhat similar situations. The decree in this respect appears to be supported by the principles laid down in Bastrup v. Prendergast, 179 Ill. 553; Mantonya v. Reilly, 184 Ill. 183; Berndt v. Armknecht, 50 Ill. App. 467; Christian v. Illinois Malleable Iron Co., 92 Ill. App. 320. As the parties chose to contract to erect such a building upon lands severally owned by them, we are of opinion that it was not error, to place a lien upon the entire tract for the entire amount due, and that otherwise the contractors would be defeated of their just rights.

The bill alleges, and upon this record it must be assumed, that the evidence showed that the owners applied to Rubendall to superintend the erection of this building before the architect had completed the plans and specifications, and that a verbal contract was made between him and them, under which he began work on April 9, 1912, and did considerable work before those plans andhpecifications were completed, and that on April 25, 1912, he and the owners executed the written contract set out in the bill, and that it was agreed that what he had done before the written contract was executed should be treated as done under that contract. By that contract he was to procure the building to be erected and purchase the material and superintend the building, and render the owners bills for what he actually expended, and they were to pay Rim the money therefor within three days after they received each bill and he was to have three per cent, on the total cost for his remuneration, and he was to erect it according to the plans and specifications, and according to and under the direction and to the entire satisfaction of Horace Tarbox, one of the owners, who was thereby made the agent of the other owners. There were two buildings on different parts of this land before this contract was made, and the new building was to include and enlarge and repair the old buildings and malee them parts of one larger and higher building. Eubendall thereupon made many contracts for labor and material and rendered appellants many bills, part of which they paid. Sometimes Horace Tarbox took the matter out of the hands of Eubendall and made contracts himself and paid subcontractors directly. On April 7, 1913, Horace Tarbox discharged Eubendall and the latter had no further connection with the work. The chief litigated question was one of fact whether Eubendall had properly erected the building. That has been decided against the owners, and, as already seen, is not presented for review here. After the master made his first report the cause was again referred to him on one point, and the Evans Company amended its answer and cross-bill in one respect by leave of court so as to indicate that it acted under the direction of Horace Tarbox in doing certain things after Eubendall was discharged on April 7, 1913. The master reported, giving the Evans Company a lien for its entire unpaid bill. Without again referring the cause, the court took from the amount allowed the Evans Company all its unpaid bill accruing before Eubendall was discharged, and added that to the amount the master had allowed, Eubendall, after deducting from the allowance to the Evans Company a small sum, to which objection twenty-three by appellants had been sustained. Appellants claim that this should not have been done without a re-reference. We hold a re-reference unnecessary under Henderson v. Harness, 184 Ill. 520; Ennesser v. Hudek, 169 Ill. 494; and Wolfe v. Bradberry, 140 Ill. 578, and other cases. It is also urged that this change was improper under the pleadings. The bill stated that complainant was uncertain whether he was entitled to recover for the materials furnished by the Evans Company while he had charge of the work, or whether the Evans Company should recover that in its own name. We are required to assume that the evidence justified the action of the court. It does not harm appellants, for it must be immaterial to them whether the sum in question is paid to the Evans Company or to Rubendall for it. The Evans Company has not assigned any cross error on this action and it is bound by this decree. We find no reversible error in the record and the decree is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Dibell

license: Public Domain

text:
    Mary Virginia Marcy, Executrix, Appellant, v. Milton S. Marcy, Appellee.
    Gen. No. 6,180.
    (Not to be reported in full.)
    Appeal from the Circuit' Court of Peoria county; the Hon. John M. Ntehatts, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded with directions.
    Opinion filed April 14, 1916.
    Statement of the Case.
    Bill in equity for an accounting filed by Mary Virginia Marcy, executrix under the last will and testament of Walter E. Marcy, deceased, complainant, against Milton S. Marcy, defendant. From a decree against her, the complainant appeals.
    R. Sumner Marcy died in New Jersey on March 5, 1894, owning real and personal estate in New Jersey and. leaving a last will which was duly admitted to probate. By his will he gave his widow, Mary S. Marcy, his personal property and the use of his real estate so long as she remained his widow, but authorized his executors in their discretion to sell his real estate during her lifetime and invest the proceeds and pay the income therefrom to his widow, and directed that at her remarriage or death the executors should sell said real estate. The will gave legacies of $100 each to his son, Milton S. Marcy, to his daughter, Hetty O. Miller, and to his grandson, Sumner M. Miller, and his granddaughter, Anna Miller, said legacies to the grandchildren to be paid to them at the age of eighteen years, which they have long since reached. The residue of his estate was given to his son, Walter E. Marcy, and his daughter, Lucy E. Marcy, both of whom were blind from birth; and said residuary clause contained certain provisions if either or both of them should die without lawful issue. The will nominated Mary S. Marcy and Milton S. Marcy as executors, but they declined to qualify and an administrator with the will annexed administered the estate. The widow never remarried and she died on January 27, 1907. During her lifetime the administrator and each of the beneficiaries joined in a deed, conveying certain real estate left by the deceased for $3,639.47. By consent of all the beneficiaries und'ér the will, $639.47 of the consideration for which said real estate was sold was paid to the widow to be used by her as she saw fit, and the remaining $3,000 was placed in the hands of Milton S. Marcy for investment, and he was to pay over the income and distribute the principal in accordance with the will of the testator. Under this arrangement the four legacies of $100 each weré not paid, and the interest on said $3,000 was divided equally from time to time between Walter and Lucy. Afterwards Walter conveyed to Lucy whatever interest he had in another piece of real estate left by the testator, and in payment therefor Lucy directed Milton to transfer $800 of her share of said fund to Walter’s part of said fund, and thereafter Milton paid the interest on $2,300 to Walter and on $700 to Lucy. On February 15, 1912, Walter died without issue and left a will which was duly probated, whereby he gave all his property to his widow, Mary Virginia Marcy, and made her executrix of his will. She claimed that at his death Walter owned $2,300 of said fund in the hands of Milton, and demanded it of Milton, and Milton refused to pay it. Thereupon as executrix and in her own right she filed a bill in equity against Milton S. Marcy in the Circuit Court of Peoria county, where Milton resided, for an accounting of the investment of said $2,300 for the payment to her of the principal thereof and interest thereon since the death of Walter. In said bill, she claimed that the expression “die without lawful issue” in the residuary clause of the will of E. Sumner Marcy meant die without issue before the expiration of the life estate granted to the widow, and that when Mary S. Marcy died while Walter was still living, he then became the absolute owner of said $1,500 and of said $800, and she therefore was entitled to the same under the will of Walter. Milton answered, claiming that under a true construction of said residuary clause, it meant “die at any time without lawful issue”; that when Walter died without issue, the whole income passed to Lucy during her lifetime; and that when she died, if without issue, then by virtue of certain other language in said residuary clause, making provision for the death of both Walter and Lucy without lawful issue, the fund would first go to pay said four legacies of $100 each and the rest to Milton S. Marcy and Hetty O. Miller, or to the survivor of them if only one was then living. Under an order of reference the master took the proofs and reported that Milton should pay from said fund the costs and the four legacies of $100 each, and should divide the residue into two equal parts, and should pay complainant one-half thereof and $800 from the other half, and should pay the balance to Lucy. The court sustained some and overruled other exceptions to said report, and held that all the funds vested in Lucy upon the death of Walter as well as the income accruing after the death of Walter and dismissed the bill for want of equity.
    Abstract of the Decision.
    1. Equity—when court may on its own initiative require proper parties to be brought in. Though lack of proper parties is not set up in a chancery proceeding, the court will, whenever it finds such lack of proper parties, take notice, ex officio, of such omission and refuse to proceed until the pleadings have been amended and the omitted parties brought into court.
    2. Trusts, § 242

      —who proper parties to bill for accounting against trustee upon death of beneficiary. Where a testator, after giving his widow the use of his real estate So long as she remained single, made provision for certain specific legacies and bequeathed the residue to his two blind children, with certain provisions for further distribution in case they should die without lawful issue, and the widow’s interest was by consent of all parties satisfied by a cash payment from the proceeds of a sale of the real estate, and the residue placed in the hands of a trustee for the use of the blind children, and on the death of one of them without lawful issue, his widow filed a bill for an accounting against the trustee, held that the other residuary legatee and the specific legatees, or their legal representatives, their legacies not having been paid, were all proper parties and should be brought in before a decree could be properly entered in the suit.
    Niehaus, J., took no part in this decision.
    Miles & Fuller, for appellant; A. D. Harrington, of counsel.
    Bichard H. Badlet for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Dibell

delivered the opinion of the court.


text:
    James T. Burns, Administrator, Appellee, v. Nellie Clark, Appellant.
    Gen. No. 6,184.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Kankakee county; the Hon. Abthub W. Deselm, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 14, 1916.
    Statement of the Case.
    . Action of assumpsit by James T. Bums, administrator of the estate of Carrie Langdon, deceased, plaintiff, against Nellie Clark, defendant, to recover the amount of a bank deposit made by the defendant and alleged to have consisted of money belonging to the plaintiff’s intestate. From a judgment for plaintiff, defendant appeals.
    Mrs. Nellie Clark, Mrs. Carrie Langdon and Levi Benjamin were sisters and brother. Dr. F. B. Lang-don, husband of Carrie Langdon, died at Louisville, Kentucky, early in February, 1913. Benjamin' and Mrs. Clark went there to the funeral. Mrs. Langdon was suffering from an incurable disease and after the funeral her brother and sister brought'her to the home of Mrs. Clark in Kankakee, Illinois. Mrs. Langdon had money in a bank in Louisville, and before they left there Mrs. Clark was in possession of the amount Mrs. Langdon had in the bank in the shape of a draft or check which she brought with them to Kankakee. Shortly after they reached Kankakee, probably the next day, and on Febmary 13, 1913, Mrs. Clark opened a checking account in a bank in Kankakee in the name of “Mrs. P. B. Langdon or Nellie Clark,” and deposited on that day to said account said draft or check in the sum of $3,179.90, and received a deposit book in the same name. On June 5, 1913, Mrs. Clark drew out that sum of money and closed the account. On June 8, 1913, Mrs. Langdon died. Thereafter plaintiff became afdministrator of Mrs. Langdon’s estate and brought this suit to recover the amount of said deposit. Mrs. Clark, in defense, proved by various witnesses declarations by Mrs. Langdon. Some to the effect that she had given this draft or this money or all her money to Mrs. Clark, and others that she wanted or intended to give this money or her property to Mrs. Clark. A few days before Mrs. Langdon died, Mrs. Latimer, a daughter of Mrs. Langdon by a former marriage, and her husband, came from their home in Springfield, Ohio, to Kankakee, upon a telegram from Mrs. Clark, and remained there until after the funeral of Mrs. Langdon. They had a conversation with Mrs. Clark after the funeral concerning this money deposited in the Kankakee bank. They testified that Mrs. Clark at first denied that there was any money in the Kankakee bank belonging to Mrs.- Langdon, and that when Latimer told her that they had been to the bank and ascertained that Mrs. Langdon had money on deposit there, Mrs. Clark then admitted to them that their mother had about $3,200 on deposit in the bank. In rebuttal, Mrs. Clark was called as a witness in her own behalf as to said conversation, and she placed the conversation at a different hour of the day from what the Latimer s did, and gave a somewhat different version of it, but stated that she in that conversation said to them: ‘ ‘ She (meaning Mrs. Langdon) gave all the money she had to me to pay her bills.” No effort was made by the defendant to prove what bills were incurred nor what sums she paid upon any bills for Mrs. Langdon. Dr. Brown, a witness for defendant, attended Mrs. Langdon during the entire four months. He was not asked the amount of his proper charges for his services to her, nor whether he had been paid, nor by whom.
    T. W. Shields, H. F. Ruel and A. E. Smith, for appellant.

      Abstract of the Decision.
    1. Assumpsit, action of, § 89

      —when evidence sufficient to sustain judgment for administrator for amount of bank deposit. In an action of assumpsit by an administrator to recover the amount of a bank deposit, consisting of money of the intestate which the defendant had deposited in her name and that of the intestate jointly, a judgment for the plaintiff was sustained where there appeared in the evidence, among other things, a statement by the defendant that the money was given her by the intestate to pay her bills with, and there was no evidence introduced to show what bills had been paid or the amount thereof.
    2. Witnesses, § 1131*—when competent to testify as to conversation relative to estate. In an action by an administrator to recover of the defendant money alleged to have belonged to the intestate and deposited in a bank by the defendant in her name and that of the intestate jointly, such defendant and a third party are competent to testify as to a conversation between them, occurring after the intestate’s death, as to whether such a deposit was made and the purpose for which it was made.
    3. Set-off and recoupment, § 4*—what is recoupment. Recoupment is the act of abating a part of a claim on which one is sued, by means of a legal or equitable right resulting from a counter claim arising out of the same transaction. •
    4. Set-off and recoupment, § 17*—when defendant in action by administrator may recoup expenses. In an action by an administrator to recover the amount of a bank account alleged to have belonged to the intestate and deposited in her name and the name of the defendant jointly, the defendant may, under the plea of nonassumpsit, recoup the amount thereof expended in paying bills of the intestate, if the evidence shows that was the purpose for which the deposit was made and what such bills were and the amount thereof.
    Walter C. Schneider and Frank J. Burns, for appellee.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Dibell

delivered the opinion of the court.


text:
    E. B. Butler and F. O. Butler, partners, trading as Butler Brothers, for use of Thomas Woulf, Appellees, v. National Live Stock Insurance Company, Appellant.
    Gen. No. 6,205.
    1. Pleading—when plea to jurisdiction not waived. A defendant does not, after a demurrer to a plea to the jurisdiction has been sustained, waive such plea by making motions to dismiss the suit, because no bond has been filed to protect a nominal plaintiff, and for a rule on the plaintiff to file a bond for costs, before a judgment, to answer over has been entered.
    2. Pleading, § 79

      —when plea to jurisdiction invalid. A plea to the jurisdiction stating as a legal conclusion, merely, that the action is not of such a character as permits the defendant to be sued in the jurisdiction where suit is brought, is invalid.
    3. Pleading, § 79*—when plea to jurisdiction insufficient. A plea to the jurisdiction failing to aver that the beneficial plaintiff does not reside in the county in which suit is brought is insufficient.
    4. Pleading—what is effect of absence of valid plea to jurisdiction. In the absence of a valid plea to the jurisdiction, the presumption is that the plaintiff is a resident of the county in which suit is brought.
    5. Pleading, § 379*—when ease treated as if oral issues joined. Where parties voluntarily go to trial without the formation of written issues, the case is treated as if oral issues had been joined.
    6. Insurance, § 660*—what constitutes prima facie case in action on policy for death of animal. In an action on a policy of insurance on a stallion, containing a clause insuring against death or theft and, in another paragraph, restrictions and limitations as to certain causes of death for which the insurer would not be liable, the plaintiff makes out a prima facie case by showing that the animal died, and the burden is then cast on the insurer to show that the cause of death was one not covered by the policy.
    7. Principal and agent, § 8*—when relation exists. In an action on an insurance policy, where it appeared that the application was signed by a party as special agent whose name, as such, was indorsed on the back thereof, and the defendant in a plea averred that such person was its special agent, held not error to permit a witness to refer to such person as the defendants’ agent.

      8. Insurance, § 663

      —when evidence sufficient to show Tack oj fraud in procuring policy on animal. In an action on a policy of insurance on a stallion, evidence held to show no fraud in the procurement thereof.
    9. Appeal and error, § 1459*—when objection to admission of testimony not considered on appeal. An objection to testimony will not be considered on appeal where the same testimony had been previously received in evidence without objection.
    10. Insurance—when provision in policy on animal that it should not be shipped out of State waived. A provision in a policy of insurance on a stallion, to the effect that he should not be shipped out of the state, held waived by issuance of the policy with knowledge on the part of the insurer that he had been shipped out.
    11. Insurance, § 329*—when insurer of stallion in foreign State may not contend that law of such State forbids insurance of animals. Where an application for a policy of insurance on a stallion is made in Illinois and the policy is sent to Iowa to the owner of the stallion, to whom he had in the meantime been shipped with knowledge of the insurer, the insurer cannot defend on the ground that it is against the law of the latter State to insure animals.
    Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldeedge, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 14, 1916.
    M. S. Meyberg, Berne B. Cohen and L. W. Brewer, for appellant.
    H. N. Byon and Boys, Osborn & Griggs, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV# and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

This is an action brought by E. B. and F. O. Butler, partners as Butler Brothers, for the use of Thomas Woulf and James Woulf, partners, and afterwards prosecuted for the use of Thomas Woulf, as surviving partner, against the National Live Stock Insurance Company, hereinafter called the company, upon a policy insuring plaintiffs against the death of an imported and registered Belgian stallion. After various pleadings, hereinafter stated, there was a jury trial and a verdict and a judgment for plaintiffs for $1,500, from which the company appeals.'

Appellant was organized under the laws of the State of Indiana. Butler Brothers live in Iowa. Thomas and James Woulf lived in LaSalle county, Illinois, and the suit was brought there. The company filed a plea similar to that which, in Pooler v. Southwick, 126 Ill. App. 264, we called “A plea to the jurisdiction of the court in the nature of a plea in abatement.” Appellees demurred thereto and the demurrer was sustained. Thereafter appellant demurred to the declaration and afterwards filed pleas in bar. It is argued that the court erred in sustaining a demurrer to the plea to the jurisdiction. Appellees contend that appellant waived that plea by pleading to the merits. It was so held in Delahay v. Clement, 3 Ill. (2 Scam.) 575, but that decision was overruled on rehearing in Delahay v. Clement, 4 Ill. (3 Scam.) 201. The latter decision has been adhered to in Weld v. Hubbard, 11 Ill. 573; Drake v. Drake, 83 Ill. 526; Brotherhood of Firemen v. Cramer, 164 Ill. 9; Union Mut. Acc. Ass’n v. Riel, 38 Ill. App. 414; Galveston City Ry. Co. v. Hook, 40 Ill App. 547; Harkness v. Hyde, 98 U. S. 478. See 1 Corpus Juris, 273, sec. 599, and note 26; 1 Cyc. 136,137, note 47. The reason given for the rule is that where the defendant pleads over it is in response to a judgment quod respondeat ouster. In this case, after the demurrer was sustained to the plea to the jurisdiction, appellant made a motion to dismiss the suit because no bond had been filed to protect the nominal plaintiff, and a motion for a rule on the plaintiff to file a bond for costs, and these motions were before the court ruled appellant to plead. It might be contended that these motions, made before a judgment to answer over had been entered, waived the plea to the jurisdiction, but we conclude it should not be so treated under the principles laid down in Kamp v. Bartlett, 164 Ill. App. 338. We therefore conclude that the action of the court in sustaining the demurrer to the plea to the jurisdiction is before us for decision. The substance of the plea was that at and before the time of the commencement of the suit appellant was and from thence hitherto has been and still is a resident of the State of Indiana, and a corporation organized under the laws of that State; that its place of business is Indianapolis, Indiana, and not LaSalle county, Illinois; that Butler Brothers were then and thence hitherto and still are residing in Emmett county, Iowa, and not in LaSalle county, Illinois; that it has been sued out of the county where it resides, and that it was not found or served with process in LaSalle county, but was found and served with process in Sangamon county, Illinois; that said action does not relate to real estate situated in La Salle county, and that “The said action so brought against it is not of such a character as comes within the exceptions provided by the statutes of the State of Illinois permitting suit to be so brought.” We are of opinion that the language above quoted makes said plea invalid. The court has no means of knowing what facts the pleader relied upon as excluding this cause from the operation of said exceptions. Appellant stated its own legal conclusions only. It should have stated the facts relied upon and then the court could have determined whether the legal conclusions of the pleader were correct. We are disposed to hold the plea insufficient for another reason. The plea states nothing as to the place of residence of the beneficial plaintiffs. The policy declared upon is for $1,500 and it showed that the beneficial plaintiffs held a mortgage upon said horse for $1,800 and that they are entitled to the entire amount of the policy if a recovery is had. The nominal plaintiff cannot arrest or discontinue the suit except on a failure of the beneficial plaintiff to secure him against liability for costs. Sumner v. Sleeth, 87 Ill. 500. The statute provides that if the nominal plaintiff dies, the suit does not abate nor survive to the legal heirs or representatives of the nominal plaintiff. The defendant may establish a set-off against the beneficial plaintiff. Rothschild v. Bruscke, 131 Ill. 265. If the beneficial plaintiff is a nonresident of the State, he can be compelled to give security for costs. Smith v. Robinson, 11 Ill. 119. The beneficial plaintiff may obtain a change of venue. Jenkins v. Pope, 93 Ill. 27. The beneficial plaintiff is a party to the suit. Boynton v. Phelps, 52 Ill. 210. In these and other cases he is called the real party plaintiff. The plea said nothing as to the residence of the beneficial plaintiffs. Section 7 . of the Practice Act (J. & A. ft 8544) is as follows:

“The courts of record of the county wherein the plaintiff or complainant may reside, shall have jurisdiction of all actions hereafter to be commenced by any individual against any insurance company, either incorporated by any law of this State, or doing business in this State. And all process issued in any cause commenced in the county wherein the plaintiff may reside, wherein an individual may be plaintiff or complainant, and any such company defendant, may be directed to any county of this State for service and return.”

The presumption against the pleader is that the beneficial plaintiffs resided in the county of La Salle and they therefore had the right to bring the suit in that county.

The first plea was nonassumpsit. The second, third and fourth pleas set out the application for said policy and averred that the statements in said application were warranties and were untrue. The second plea averred that said stallion did not cost appellees $2,500, as in said application stated. The third plea averred that said stallion was not worth $2,500' as in said application stated. The fourth plea averred that said stallion did not serve the number of mares, nor get the percentage of colts in said application stated, and that said horse had not been in the locality stated for the time stated, and that the sums received for his services were not as great as stated in the application. The fifth plea averred that the policy was obtained by fraud, and set out the alleged fraud in detail. The sixth plea alleged that appellant’s special agent, who took- the application, put a fictitious value upon the stallion, etc. Afterwards four other pleas were filed, of which the first alleged that appellees had other insurance upon the horse, contrary to the statement in the application. The second additional plea alleged that the death of the horse was not caused by any peril covered by the policy. The third additional plea alleged that the horse was removed from the State in which he was insured, in violation of the policy. The fourth additional plea alleged that the horse was in Iowa when insured and that appellant could not lawfully insure animals in the State of Iowa. Replications were filed to some of these pleas and not to others. It may be that if appellant had been compelled to go to trial without issue joined on all said pleas, such action might have been erroneous, but the record shows that the cause was set for trial by agreement of the parties. Where parties voluntarily go to trial without the formation of written issues, the case is treated as if an oral issue had been joined. Strohm v. Hayes, 70 Ill. 41; Schreffler v. Nadelhoffer, 133 Ill. 536-547; Kaestner v. First Nat. Bank of Chicago, 170 Ill. 322; Devine v. Chicago City Ry. Co., 237 Ill. 278; Supreme Court of Honor v. Barker, 96 Ill. App. 490; Anderson v. Patty, 168 Ill. App. 151; Ryan v. McGirr, 168 Ill. App. 415.

In passing upon the merits, it is to be noted that the application as set out in the pleas is not fully copied therein, but it is in evidence. Appellant contends that appellees did not prove that the horse met his death from any causes insured against. The policy insured appellees “against loss by death or theft to the amount of $1,500, on the following described live stock.” This is followed by a description of this particular animal. In a later paragraph, and apparently in fine print, are limitations or restrictions as to the causes of death against which said policy should run. We are of opinion that appellees made a case when they proved the loss of this animal by death, and that if appellant claimed that the death was not within the limitations the burden was upon it to prove that fact. Clay Fire & Marine Ins. Co. v. Wusterhausen, 75 Ill. 285. The rule is thus stated in Knickerbocker Ins. Co. v. Tolman, 80 Ill. 108: “The general rule is, that, where a right is conferred by a clause, absolute and unconditional in its terms, but the right is limited in a subsequent clause by a condition or exception, the pleader is not required to negative the condition or exception, but it is for the defense to plead it.” Scottish Nat. Ins. Co. of America v. Adams, 122 Ill. App. 471. The proof was that the horse was left in a commodious and proper box stall in good health and condition about 11 a. m., and about 6 p. m of the same day was found dead in said stall. No evidence was introduced to support the plea that he did not die from any of the causes specifically indicated in the fine print of the policy.

The proof was positive and uncontradicted that this horse cost Butler Brothers $2,500; that he was then worth $2,500; that Butler Brothers bought the horse of Thomas and James Woulf for $2,500 and paid them $700 in cash and executed two notes for $900 each for the rest of the consideration, payable at certain specified dates, and secured said notes by a mortgage upon the horse, and by this insurance which was immediately applied for; and that there was not between Butler Brothers and th'eir vendors any private agreement in any way lessening the amount which they were to pay therefor.

It is contended that the court erred in permitting a witness to speak of James Woulf as the agent of the insurance company. The application is signed not only by the two Butlers but also by “James Woulf, special agent, ’ ’ over a statement at the foot of the application as follows: “Agent must sign his name here.” Among the indorsements on the back of the application, obviously placed there by appellant or its agent, is “James Woulf, agent, Streator, Illinois, B. P. D. No. 8.” One of the special-pleas by appellant averred that James Woulf was a special agent of the defendant company for the purpose of talcing applications for insurance. The proof is clear from various sources that James Woulf was the agent of appellant and that he did take and fill out this application, and there was no error in the respect suggested. The application showed that Thomas and James Woulf sold this horse to Butler Brothers for $2,500, of which $700 was cash and $1,800 in notes, payable to Thomas and James Woulf, and that their address was Streator, Illinois, so that the company had full knowledge therefrom that their agent and his brother had just sold this horse to Butler Brothers. The interest of their agent in this application, which he took, was fully revealed, and there is no evidence of any fraud between Butler Brothers and James and Thomas Woulf. The statements therein, as to the number of mares served by this horse in the last two preceding years and percentage of colts therefrom, obviously would not have been known to Butler Brothers, but must have been obtained from appellant’s agent, and any one reading the application carefully would see that those statements must have been furnished by the agent and not by the applicant. Those statements were proved to be true, save in one respect. The application, when introduced in evidence, stated that said horse had served 160 mares during the last preceding year; in fact, it had only served 100 mares. Woulf testified that when that application was written and signed it read “100 mares” and that some one had since changed it to 160. Appellant objected to this answer near the close of his examination, but the witness had previously testified to the same fact without any objection, so that that fact was in evidence.without objection some time before any objection was made, and therefore we are not called upon to determine whether such proof, if objected to, was competent without any pleading alleging such alteration.

The horse was sold to Butler Brothers in La Salle county, Illinois, for the purpose of immediately shipping him to Estherville, Iowa. This application was immediately prepared and forwarded to appellant at Indianapolis, and the next day the horse was shipped to Iowa and was in Iowa when the policy was after-wards issued. The application revealed to appellant that the horse was to go to Iowa, not only by the fact that the residence of Butler Brothers in Estherville, Emmett county, Iowa, was stated in the application, but also that it stated that the nearest veterinarian was resident in Estherville. Not only did the agent of the company know that it was immediately to be shipped to Iowa and assent thereto, but the company knew by the application that the horse was going to Iowa, and appellant sent the policy to Butler Brothers, Estherville, Iowa. He was removed to that State before the policy was issued, and with the knowledge of appellant and its agent. When the policy was in fact issued the horse was in Iowa, and he was never removed from that State. If the laws of Iowa forbid appellant to insure animals in that State, nevertheless it did make the contract and receive the consideration with full knowledge that the horse was to be in Iowa.

We find no reversible error in the record, and the judgment is therefore affirmed.

Affirmed.


text:
    Frank F. Follett, Administrator, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 6,212.
    1. Railroads, § 634

      —when operation of engine backwards without light in front at night in violation of ordinance constitutes negligence. In an action against a railroad company for death, the defendant held guilty of negligence in running a locomotive hack-wards over its tracks within city limits in the nighttime without displaying a light on its advancing end, in violation of an ordinance.
    2. Railroads, § 641*—when backing of train over crossing without warning constitutes negligence. Backing a train across a much-traveled street crossing, in the nighttime, without ringing a bell or having the crossing guarded by a trainman with a lighted lantern, or by a flagman, held negligent.
    3. Railroads, § 640*—when backing of train over crossing at excessive speed constitutes negligence. Backing a train across a street crossing at a speed in excess of that allowed by city ordinance is negligent.
    4. Appeal and error, § 1245*—when party procuring exclusion of competent evidence may not complain of failure to establish due care. In an action for death where competent evidence as to the sobriety, cautiousness, industriousness, prudence and carefulness of the deceased was ruled out on the defendant’s objection thereto, held that the defendant could not he heard to argue on appeal that the plaintiff was not in the exercise of due care at the time of his death.
    5. Railroads, § 661*—when person about to cross track has right to rely upon obedience of ordinance in operation of train. One about to cross a railroad at a street crossing has a right to rely upon the railroad’s servants obeying city ordinances in the operation of its trains.

      6. Death, § 46

      —what may he considered on question of due care in action for death. In an action for death the jury may, on the question of due care on the part of the deceased, consider the instinct common to man, prompting to the preservation of life and avoidance of danger.
    7. Death, § 73*—when instruction need not contain requirement that jury should find that deceased was in exercise of due care. In an action for death due to defendant’s negligence, an instruction relating solely to the measure of damages need not contain the requirement that the jury should find that the deceased was in the exercise of due care.
    8. Death, § 67*—when verdict for not excessive. A verdict for $7,000 for the death of an able-bodied man thirty-six years old, earning $924 per year, and having at the time of his death a wife and three children, aged five, four and three years, respectively, held not excessive, where, though his family had gone to a foreign country, there was no evidence that he had ceased to support them.
    Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the October term, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 14, 1916.
    Rehearing denied May 24, 1916.
    Stead, Woodward & Hibbs, for appellant; John Gf. Drennan, of counsel.
    Butters & Clark, B. C. Donoghue and Howard H. Bayne, for appellee.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vola. XI to XT, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

On May 17,1913, after 9 p. m., an engine of the Illinois Central Bailroad, hacking one freight car across First street "in the City of La Salle, ran down and killed Kasper Zemlik and Anton Mes. Zemlik left a widow and three children. His administrator brought this suit against the railroad company to recover damages occasioned to his next of kin by the death of said Zemlik, and on a jury trial had a verdict for $7,000. A motion for a new trial was denied, plaintiff had judgment on the verdict and defendant below appeals.

Appellant operates- a single track railroad through the City of La Salle. On the evening in question freight No. 152 came to La Salle from the south and stopped upon the bridge over the Illinois River. A short distance north of the bridge were coal chutes next west of the main track. Some distance north of that was First street. Further north on the west side of the track was the passenger station and still further north was a water tank, and beyond that were what were known as the Wallace yards. At First street, and for some distance north and some distance south of that and east of the main track, was what was called the passing track, and further east were three switch tracks and also, according to some of the witnesses, one or two spur tracks. First street was at least eighty feet wide. In the middle of the street was a plank crossing, beginning west of the main line and extending east of the east switch track, by which teams were enabled to go across the tracks. Some witnesses testified that this plank crossing was a single length of planks and the crossing was nine or ten feet wide. Others testified that there were two rows of planks abutting against each other and making the plank crossing about twenty feet wide. One witness thought it wider even than that. If the plank crossing was twenty feet wide and in the center of the street and the street was eighty feet wide, then from the south line of the plank crossing to the south line of the street was about thirty feet. A flagman’s shanty stood in the street towards its south line and several feet west of the main line. Some of the witnesses spoke of the plank crossing as if that were the entire street, but other evidence shows the width of the street as above stated. The night was dark and the moon was in its first quarter, and behind clouds. There was an arc light burning about fifteen feet west of the railway, its obvious purpose being to light the plank crossing. At the time in question a switch engine was switching freight cars back and forth over First street upon the switch tracks and the passing track. It was headed north, so that its headlight was thrown only to the north. While one or two of the crew testified that just before the accident this switch engine stopped south of First street and stood there at the time of the accident, the great preponderance of the evidence is that it pushed cars north over First street and stopped there just before the accident, and that it had had that crossing blocked for fifteen or twenty minutes by its work back and forth across that street. The engine of train No. 152 left most of its cars upon the bridge, and the engine, headed north, took a cut of cars north to the Wallace yards and there left all but one car and then backed down to the water tank and took water. It then gave several sharp whistles as a notice to the men in charge of the coal chutes that the engineer wished to take coal, and then ran down from the water tank to the coal chutes. As it crossed First street some one gave an alarm to the engineer and he stopped and they found the engine had run over Mes. When his body had been removed in an ambulance, the engine and car went on down to the coal chutes. Then the hat of another man besides Mes was found and the remains of Zemlik were discovered scattered along the right of way. Blood and indications that some object had been dragged in the cinders with which the track was ballasted began about twenty feet south of the plank crossing.

Plaintiff filed a declaration containing four counts, and later filed four additional counts, and the case finally went to the jury on the original declaration and the first and second additional counts. The first count charged that appellant’s servants so negligently drove and managed said locomotive and car that Zemlik was thereby killed while walking across the railroad. The second count charged that appellant failed to comply with the statute requiring railroads to cause a bell to be rung or a whistle to be sounded beginning at eighty rods from the place where a railroad intersects a public highway, and to keep the same ringing or sounding until the highway is reached, and that by that failure the death was caused. The third count charged that many people constantly crossed the railroad upon that street, and that this made it the duty of appellant to station a flagman at said crossing or to provide some other means of warning people traveling along said highway, and that this was not done, and that this omission was negligence and caused the death of Zemlik. The fourth count charged that the locomotive and cars were driven over said street at a greater speed than was reasonably safe at that place, and that said speed was negligent and dangerous, and caused the death of Zemlik. The first additional count set up an ordinance of the city, forbidding that any locomotive engine attached to any freight car should be driven upon any railroad track in that city at a greater rate of speed than six miles per hour, and charging a violation of said ordinance and the consequent death of Zemlik. The second additional count set up an ordinance of said city, requiring a locomotive engine or railroad car, running in the nighttime, on any railroad track in said city, to have and keep while so running a brilliant and conspicuous light on the advancing end of such engine or car, and a violation of this ordinance and the consequent death of Zemlik. Each count alleged due care by deceased for his own safety. The plea was the general issue. The ordinances so declared upon were in evidence. This engine headed north and, with its headlight showing to the north, was backing south with one freight car ahead of it, and it had no light of any kind on the advancing end. It therefore was guilty of negligence by its violation of said ordinance, as charged in the second additional count. Zemlik and Mes lived east of the railroad, as did many other people, and had been down to the center of the town, about one mile west, that evening and were returning home. They were evidently stopped by the street being blocked on the switch tracks by the switch engine at work there. Witnesses saw two men standing on or near the main track a few minutes before the accident, and these were evidently Zemlik and Mes waiting until the switching crew gave them an opportunity to cross over. The jury could reasonably find that if the ordinance requiring a conspicuous light on the advancing end of the freight car had been obeyed, they would have been warned thereby of the approach of the car and would have escaped injury. Appellant makes no answer to this charge of negligence. In Ehrlich v. Chicago Great Western R. Co., 160 Ill. App. 379, we cited authorities from which we drew the conclusion that the absence of a headlight from a moving train in the nighttime tended to show negligence in the operation of the, train. We see no reason why this rule should not be applied to a freight train moving backwards in the nighttime without a light on its advancing end. Chicago & A. R. Co. v. Garvy, 58 Ill. 83; Lake Erie & W. Ry. Co. v. Zoffinger, 107 Ill. 199; Calumet Iron & Steel Co. v. Martin, 115 Ill. 358, 369; Chicago, M. & St. P. Ry. Co. v. Walsh, 157 Ill. 672; Baltimore & O. S. W. Ry. Co. v. Alsop, 71 Ill. App. 54; 33 Cyc. 958. This proof therefore tended to make a case under the first count of the declaration, which charged negligent operation of said locomotive and car. The blasts of the engine whistle to give notice to the operator of the coal chutes were not a compliance with the statute concerning the ringing of a bell or the blowing of a whistle in approaching a highway crossing. No engine bell was rung by hand as the crossing was approached, but the engineer testified that before his engine left the water tank he started an automatic bell thereon and that it rang continuously until the engine stopped after the accident. He was corroborated by some other witnesses, who testified that the bell was ringing as the engine went south over the street. A preponderance of the witnesses who were in that vicinity at the time testify to the effect that' they heard no bell ringing. Some of these witnesses were disinterested. If the jury had found a special verdict that the bell was not ringing as the engine backed south, it could not have been set aside on the ground that it was unsupported by the proof. Appellant produced proof that one of the train crew went south to the crossing, carrying a lighted lantern, and gave a signal to the engineer to back up across the street, but the preponderance of the evidence seems to be that no man carrying a lighted lantern was on that crossing just before the accident. If no bell was rung and if the trainman did not guard the crossing with a lighted lantern, then another element of negligence was established. Although there was a flagman’s shanty on the south side of the street and west of the railroad, no flagman was on duty that night, and there was evidence that people and teams were crossing the railroad on that street almost constantly, and the jury might reasonably have decided therefrom that under those conditions it was negligence not to have that crossing guarded by a flagman at night. Some of the trainmen testified that this engine went across the street at a speed of three or four miles per hour, but the apparent preponderance of the evidence is that the speed was in excess of that permitted by the ordinance, and, if so, another ground of negligence was established against the company. Appellant does not seriously contend that it was not negligent or that its negligence did not contribute to the death of deceased.

Appellant contends, as its chief ground for a reversal of the judgment, that appellee did not show that Zemlik was in the exercise of dne care for his own safety, and that it affirmatively proved that he was not in the exercise of such due care. Appellee introduced evidence that Zemlik was a careful man, and the court excluded it, and that he was not a drinking man, and this was permitted to stand. He then sought to show by witnesses who had known Zemlik for a number of years that he was a careful, prudent, cautious, sober and industrious man. Appellant objected to this evidence and the court sustained the objection and this evidence was thereby kept from the jury. Appellant argues that this evidence was not competent. No one saw Zemlik and Mes struck or killed. No one knows exactly where they were when they were struck. Two men, evidently these two, were seen at the crossing before the engine started south. It was shown that they were on their way home, and it is evident that they stopped because the side tracks were blocked by the work of the switching crew, one of whom testified that just before this engine started south the switch engine and the various cars it was handling had blocked the crossing for fifteen or twenty minutes. Appellant contends that it proved that, when so seen, they were standing between the rails of the main track. One witness did so testify, and another is made to appear so to testify by the abstract, but an examination of his testimony in the record shows that he did not so state, and another stated that he did not know whether they were between the rails or not, and still others only located them at or about the crossing. The case of Illinois Cent. R. Co. v. Nowicki, 148 Ill. 29, is much like this case. There plaintiff’s intestate was killed upon a street crossing while going towards home by his usual route. He was last seen a minute before he was struck, standing on the crossing between the rails of the west track and waiting for the passage of a train on the east track. The court said that it was reasonable to suppose that his attention was directed to the train which obstructed Ms way and that he expected no train on the west track while the other train was standing in front of him, and that the evidence tended to show that he was acting reasonably in pursuance of Ms purpose to go home as men ordinarily act under like circumstances. The court said that the fact that he was standing between the rails was a circumstance to be considered by the jury with all other facts in determining whether he used ordinary care, but was not conclusive proof of negligence; that he had a lawful right to be upon any part of the crossing, and whether, under all the circumstances, he exercised proper care for his personal safety in being between the rails was a question of fact. It was there held that proof that he was a sober, industrious man, possessed of all his faculties, also tended to prove that he was in the exercise of proper care, and that when no one saw the killing, due care may be inferred from the circumstances. In Chicago, B. & Q. R. Co. v. Gunderson, 174 Ill. 495, where plaintiff’s intestate was Hlled by being struck by a moving train while he was upon the railroad track, the court held, as competent, proof that he was a steady, sober and industrious man, in good health and so situated that it was fairly inferable that the instincts of self-preservation were as strong in him as in other men, and it held that these facts of themselves largely tended to prove that he exercised due care. In Illinois Cent. R. Co. v. Prickett, 210 Ill. 140, plaintiff’s intestate was killed by the explosion of his engine, and no other person was in the cab so that he could see the acts and conduct of the engineer, except the fireman, who was also killed by the explosion. Other witnesses saw the engine explode but they could not see what the deceased did at the time of and immediately before the explosion. The court held that proof was properly admitted to show the general reputation of the deceased as a careful and competent engineer and a sober man, and that such testimony

tended to show that he .exercised ordinary care at the time of the explosion. The same rule has been followed in numerous other cases. Appellant cites cases in answer to this, but we do not find them applicable so far as they use any different language. In reality they confirm what was said in the cases which we have cited. If the proof now under discussion had been admitted it would under these authorities have tended to prove that Zemlik was in the exercise of due care at the time he was struck, and it may he the jury would have considered it sufficient proof of that allegation in the declaration. Appellee was prevented from having the benefit of this proof by the objections and motions to exclude made by appellant. “Appellant cannot be heard to object that a fact was not proved where the proof was prevented by his objection.” Hahl v. Brooks, 213 Ill. 134; Chicago & A. R. Co. v. Walker, 118 Ill. App. 397, 402, and cases there cited; American Ins. Co. v. Meyers, 118 Ill. App. 484; Rock Island County v. Rankin, 118 Ill. App. 499; Home Building & Loan Ass’n v. McKay, 118 Ill. App. 586. Therefore appellant cannot be heard to argue here that the evidence does not show that Zemlik was in the exercise of due care. But, aside from that, when all the evidence is considered, we think the jury were warranted in finding for appellee on that subject. The switch engine and the various cars it was moving were passing back and forth across this highway over which he wished to travel. The switch engine was bumping into cars frequently, and it made much noise in reversing from time to time. All this tended to distract the attention of Zemlik from the engine standing on the main track north of him. Zemlik also had a right to rely upon appellant to obey the city ordinances. Illinois Cent. R. Co. v. Gilbert, 157 Ill. 354; Baltimore & O. S. W. Ry. Co. v. Then, 159 Ill. 535; East St. Louis Connecting Ry. Co. v. Eggman, 170 Ill. 538; Dukeman v. Cleveland, C., C. & St. L. Ry. Co., 237 Ill. 104; Elgin City Banking Co. v. Chicago, M. & St. P. Ry. Co., 160 Ill. App. 364, 375. He had a right therefore to rely upon it that no engine or ear would approach that crossing in the nighttime without a conspicuous light upon its advancing end and without the blowing of a whistle or the ringing of a hell, and that no engine with a freight car would come to that place at a greater speed than six miles per hour. In determining this question of due care the jury had a right to consider also the instinct common to man, prompting to the preservation of life and the avoidance of danger.

Complaint is made of the second instruction, given at the request of appellee, which was to the effect that if the jury found the defendant guilty of the negligence charged and that the same resulted in the death of Zemlik, then plaintiff was entitled to recover for the benefit of the widow and next of kin such damages as the jury considered from the evidence just compensation for the pecuniary injuries, if any, which the evidence shows that the widow and next of kin sustained by reason of said death. It is contended that this omits the element of due care. We regard such an instruction as open to criticism, and would much prefer an instruction which began: “If you find for the plaintiff under the evidence.” But from an early day the Supreme Court has held that instructions substantially in this form relate solely to the measure of damages and need not contain the requirement that they should find that the plaintiff or the deceased was in the exercise of due care. Among such cases are Illinois Cent. R. Co. v. Gilbert, 157 Ill. 354; Elgin, J. & E. Ry. Co. v. Thomas, 215 Ill. 158; Bonato v. Peabody Coal Co., 248 Ill. 422, and many other cases cited in the foregoing. Under these authorities it was not error to give said second instruction.

It is argued that the verdict was excessive and that for that reason a new trial should have been awarded. Zemlik was thirty-six years old at the time of his death and was a healthy and able-bodied man. He had an employment at which he worked fourteen days and fourteen nights each month at $2.75 per day or night, which if he worked all the time would bring him $924 a year. He married his wife in LaSalle and left a widow and three children, who at the time of his death were aged five, four and three years. Considering his reasonable expectation of life, no one could say that his widow and children would not have been benefited in the amount of this verdict before the children had reached their majority. The widow and children went to Austria ten months before his death, but there is nothing to show that this was without his consent or that he failed to support them thereafter, and the fact that they had gone to Austria does not seem to us to change their rights in any respect. The jury might have found a less sum as damages, but we cannot say from the evidence that they should have done so, or that they erred in fixing the amount they did.

We find no reversible error in the record and the judgment is therefore affirmed.

Affirmed.


author: Mr. Justice Carnes

text:
    Elizabeth Pooler, Appellant, v. Pliny C. Southwick, Appellee.
    Gen. No. 6,025.
    (Not to he reported in full.)
    Appeal from the Circuit Court of La Salle county; the Hon. Job A. Davis, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 14, 1916.
    Statement of the Case.
    Action by Elizabeth Pooler, plaintiff, against Pliny G. Southwick, defendant, to recover damages for per- 0 sonal injuries. From a judgment for defendant, plaintiff appeals.
    In June or July, 1904, the plaintiff, Elizabeth Pooler, was riding on a public highway with her niece in a horse-drawn carriage. The horse became frightened by an approaching automobile driven by the defendant, and plaintiff was thrown from the carriage and seriously injured. July 6, 1905, she began this action to recover for that injury and filed a declaration charging only common-law negligence in carelessly and negligently running and operating the automobile upon a public highway. On February 27, 1907, she filed two additional counts to the declaration, declaring upon the Act of 1903 to regulate speed of automobiles (Hurd’s Bev. St. 1903, chap. 121, par. 269a). It was provided in that act in section 1 that an automobile should not be driven along any road or highway faster than fifteen miles per hour; in section 2, that when a horse driven upon the road became frightened by the approach of an automobile the driver should bring the machine to a full stop; and in section 4, that in an action for damages proof of the violation of either of those provisions should constitute negligence. She alleged in the first additional count a failure to bring the ,
      automobile to a full stop when the horse began to get frightened, and in the second, the running of the car at a speed in excess of fifteen miles per hour, and otherwise indicated an intention to, in these counts, ground her right of recovery on that statute. The defendant pleaded the general issue to the original (or common-law) count. He demurred to each of the additional counts, which demurrer was overruled. He then pleaded the Two-Tear Statute of Limitations to the additional counts on the theory that they each stated a new and different cause of action. A demurrer to this plea was sustained and he abided by the plea. A jury trial followed and resulted in a verdict and judgment for the defendant.
    Abstract of the Decision.
    1. Appeal and error, § 1035

      —what is effect of failure to assign questions as error. Rulings ‘of the trial court, not assigned as error, will not be considered on appeal.
    2. Statutes, § 159*—what was effect of repeal of Automobile Act of 190S. A recovery may be had under the Automobile Act of 1903, in an action begun before its repeal, for an injury sustained while it was in force.
    3. Witnesses, § 278*—when may be impeached. When a witness, upon .cross-examination, neither directly admits nor denies acts or declarations about which he is questioned, it is competent for the adversary to prove xthe affirmative.
    4. Instructions, § 111*—when may not ignore counts. Ignoring valid counts of a declaration in instructions is reversible error.
    Duncan & O’Conor and Butters & Clark, for appellant.
    Browne & Wiley, for appellee.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.


text:
    Michael Dinneen, Appellee, v. City of Ottawa, Appellant.
    Gen. No. 6,108.
    (Not to he reported in full.)
    Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldbedge, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 14, 1916.
    Statement of the Case.
    Action by Michael Dinneen, plaintiff, against City of Ottawa, defendant, to recover damages for personal injuries sustained by stepping into a hole in a street near a sidewalk in defendant city. From a judgment for plaintiff, defendant appeals.
    Plaintiff was at the time of the injury a man about seventy years old. He had lived in Ottawa a great many years and had been, for a number of years, a member of the city council, his last term of office expiring about eight months before the accident, a part of the time serving as chairman of the street and alley committee, and a part of the time as a member of the sidewalk committee.
    At the northwest corner of Columbus and Joliet streets there was a hole, or excavation, near the angle made by the sidewalks where years before a catch-basin for the sewer had been put in there and the hole left open. There was no guard protecting the hole. There would .be little danger from it in the daytime. A pedestrian would not fall into it if he kept on the sidewalk as he turned the right angle to cross the street. The accident happened at. about eleven o’clock1 of a dark night. The street was dark at that place. Plaintiff was walking north on Columbus street and intending to turn at a right angle and go east and walk on Joliet street. He mistook the place, and turned just before reaching the walk, falling into the hole and thereby receiving the injury complained of. The ground was hard and level at the place where he turned, and he thought he was still on the walk. He had theretofore been accustomed to walk to his home in this direction on Columbus and Joliet streets, but had habitually used the other side of the street.
    Abstract of the Decision.
    1. Municipal corporations, § 1107

      —when knowledge by pedestrian of defect in street question for jury. In an action against a city by a former member of the council to recover damages for personal injuries sustained on a dark night, as the result of stepping off a sidewalk and falling into a hole in a street, where it appeared that plaintiff had long been accustomed to use such street and thought he was turning at right angles on another intersecting sidewalk, held that it was a question for the jury whether plaintiff knew of the hole in the street.
    2. Estoppel, § 56*—when former member of city council not es-topped to recover for personal injuries due to defeat in street. A former member of a city council is not precluded from recovery against a city for damages for injuries sustained as the result of stepping off a sidewalk into a hole in the street because of the fact that such defect existed at the time he left office.
    3. Municipal corporations, § 979*—when city guilty of actionable negligence in neglecting to repair or guard excavation. In an action for damages for personal injuries sustained as the "result of a pedestrian stepping off a sidewalk into an unguarded hole in the street, where years before a catch-basin for a sewer had been put in and the hole left open, held that the city was guilty of actionable negligence in permitting the excavation to remain in such condition, uncovered and unguarded.
    4. Municipal corporations, § 1025*—when city charged with notice of defect in street. A city is charged with notice of the existence of an unguarded hole near a sidewalk in the street where such hole has existed for years.
    Rector C. Hitt, for appellant.
    - Browne & Wiley, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

5. Municipal corporations, § 1107*—when contributory negligence of pedestrian injured by stepping off sidewalk into unguarded hole in street question for jury. In an action by a former member of a city council to recover damages for personal injuries sustained on a dark night, as the result of stepping off a sidewalk into an unguarded hole in the street which had existed for years, where it appeared that plaintiff was familiar with the streets, that the hole existed during his term of office as a member of the city council, but that he thought that he had reached an intersecting sidewalk along which he intended to pass, held that it was a question for the jury whether plaintiff was exercising ordinary care for his safety.